K.J. Has Two Fathers (Who Are Both the Late Mother's Ex-Lovers)

From Taylor v. Smith, decided last month by a Pennsylvania appellate panel (Judge Correale Stevens, joined by Judges John Bender and Anne Lazarus) but just noted yesterday in the Westlaw Bulletin:

Victor Taylor ("Father") appeals from the order dated and entered March 1, 2023, awarding shared legal and physical custody of K.J. ("Child"), a male child born in April of 2020, to him and Kareem Smith, the nonbiological father who stood in loco parentis to Child….

Child was born to S.J. ("Mother"). At the time, Mother was in a relationship with Mr. Smith. Mr. Smith thought he was Child's father and raised Child with Mother until Mother's death in May of 2021. Thereafter, on July 12, 2021, it was confirmed that Father is Child's biological father. {We glean from the record that Father sought court approval to perform a paternity test. Mr. Smith does not dispute Father's paternity.}

Father and Smith were given joined custody, and the court affirmed; it began by quoting an earlier decision setting forth the rights of biological parents and others who had helped raise a child:

The parent has a prima facie right to custody, "which will be forfeited only if convincing reasons appear that the child's best interest will be served by an award to the third party." Section 5327 of the Custody Act pertains to cases "concerning primary physical custody" and provides that, "[i]n any action regarding the custody of the child between a parent of the child and a nonparent, there shall be a presumption that custody shall be awarded to the parent. The presumption in favor of the parent may be rebutted by clear and convincing evidence." …

[But] "[w]hile this Commonwealth places great importance on biological ties, it does not do so to the extent that the biological parent's right to custody will trump the best interests of the child. In all custody matters, our primary concern is, and must continue to be, the well-being of the most fragile human participant—that of the minor child." "Once it is established that someone who is not the biological parent is in loco parentis, that person does not need to establish that the biological parent is unfit, but instead must establish by clear and convincing evidence that it is in the best interests of the children to maintain that relationship or be with that person."

The appellate court went on to say:

[W]hile the trial court recognized the statutory presumption in favor of biological parents …, the trial court found clear and convincing evidence that Child's best interests dictated maintaining shared legal and physical custody …. ["][T]he [c]ourt finds by clear and convincing evidence that the need for stability and continuity in [ ] Child's life is sufficient to overcome the presumption …["]

[T]he record supports the trial court's conclusion that the factors weighed evenly between the parties. For example, at the time of the subject proceeding, Father and Mr. Smith had been exercising 50/50 shared custody for almost one year. Father and Mr. Smith both reside in Williamsport in the same school district. Father testified things are going well, and he and Mr. Smith are working together "perfectly" and as "civilized parents." Mr. Smith agreed. Further, Child is happy and doing well. He has half-siblings and extended family, with whom he is close, associated with each home…. [T]he trial court did not abuse its discretion in determining that an award of shared legal and physical custody was in Child's best interest….

Melody L. Protasio represented Smith.

Comments

[John F. Carr]

I would like to imagine this as a wacky remake of "My Two Dads" but if it went to an appeals court it's not funny any more.

[Magister]

It could be a positive that both men wanted to be the father of this child, although that might depend on their motivations and how they work together in the joint custody arrangement. It is good that no judge offered to cut the child literally in half.

[Lee Moore]

As I believe i have mentioned before, "the best interests of the child" standard, necessarily gves the judge unrestricted discretion to decide whatever he likes, excluding transparently ridiculous orders.

That is because there can be only one superlative, and so what the judge thinks is best must necessarily win. What else could he pick but his own view of what's best, if he is required to pick "the best" ? Even if there are twenty other solutions that reasonable men, and even reasonable women, would reckon just as good.

For legislatures wishing to avoid this exercise in judicial megalomania, a much more sensible standard is "biological parent gets custody unless that is manifestly against the interests of the child." Since this is not a superlative - ie there will be lots of possible solutions that are not manifestly against the interests of the child, the legislature can ensure that the child goes with its actual parent, unless the parent is actually doing the chid harm. Judicial megalomania is thus deflated.

The same standard should apply to any official attempt to usurp custody or parental control of any decison concerning the child. The government should be required to show that the parents are already doing, or are very likely to do, the child actual harm.

[shawn_dude]

[Assuming, for the sake of argument, that both men are equally situated and neither is a threat to the child...]

Pulling the child away from the only father they've ever known and placing them with a stranger seems like a major disruption (aka: harm) to that child. And that harm is weighed against what overriding need for the child? The specific ordering of their DNA? The joint custody agreement preserves the child's existing family and support structure while giving them the chance to build a relationship with their newly discovered biological father. That seems more likely to maximize opportunity and reduce harm.

[Lee Moore]

Which illustrates my point in spades - who hasn't got their own cockamamie ideas about how someone else's child should best be raised ? (And which also shows clearly why you should never be allowed anywhere near the judicial bench.)

Show a little humility. If Dad and Mom are dead, Uncle will do fine. If Uncle's dead too, then Grandma and Grandpa will do fine.

And in this case "Pulling the child away from the only father they’ve ever known and placing them with a stranger seems like a major disruption" is more than usually daft. The kid has been living under joint custody for a year already. The father is not a stranger. And even if he was a stranger on day one, no one had the slightest qualms about giving him joint custody on day one.

The problem is precisely that "the best interests of the child" encourages megalomaniacs and other opinionated halfwits to stamp their feet and insist on the only possible solution (ie their own whim) and reject the other thousand possibiities which will do just fine.

[Reallynotbob]

"...encourages... opinionated halfwits to stamp their feet and insist on the only possible solution (ie their own whim) and reject the other thousand possibilities which will do just fine."

**waiting for Lee Moore to detect the irony here.

[Lee Moore]

Thre's no irony on sale here, Reallynotpaying attention.

Being content to accept any of the other 999 acceptable solutions that do not reflect own whim is hardly stamping my feet and insisting on "the only possible solution."

[Roger S]

Smith is not the father, and was not married to the mother. So how does he get any rights in the matter? Some judge used a meaningless slogan to undermine the real father.

[Lee Moore]

And that harm is weighed against what overriding need for the child? The specific ordering of their DNA?

Yes, the specific ordering of their DNA. It's almost as if the theory of evolution has passed you by. We are evolved to care about our children. Parents have an interest (qua stake) in their children. Step-parents do not. Which is why the rate of child abuse by step-fathers is roughly two orders of magnitude higher than the rate for natural fathers*. (Though still quite low.) Ancient humans who did not care any more for their own children than the children of others, left fewer descendants than those ancient humans who cared more about their own children. And ditto any other care giving species.

None of which is to say that a step parent is always going to be a worse parent than a biological parent. Loads of children are successfully raised by people who are not their biological parents. It's just - why fight the odds if you don't need to ?

I will note, see above, that the child's interests are important, but they are not the only interests at stake. Natural parents have an interest in raising their own children. When their children are removed from their care by the government, they suffer an injury. Again, you need a really good reason - not just a whim - to displace them.

* in humans, that is. Male bears are just as happy to eat their own children as anybody else's. Parental attachment varies according to both species and sex.

[TheAmazingEmu]

This actually strikes me as balancing competing interests rather than best interests of the child. Best interests of the child would be to allow the individual raising him as his child to have sole custody while the son could choose to have a relationship with his biological father if he so chooses. However, there's also the parental right of the biological father. The court is balancing those two interests in making this decision.
Pulling him from the person raising him to give to the biological father would not be in the best interest of the child, so I agree with you there.

[Roger S]

That's right. Judges cite “the best interests of the child” as if it is a workable standard. It is not workable. There is no analysis of the best interests. It is just an excuse for the judge to apply his prejudices, and give a terrible decision. The child belongs to the father.

[Drewski]

Local Man Outraged that Judges are Permitted to Exercise Judgment

[Roger S]

Right. Ideally judges would follow the law, and not exercise judgment to impose their prejudices and whims on others.

[Idihax]

It is not in the best interest of a child to be raised by a liberal, as most liberals think that the appropriate way to raise a child is to penetrate him or her.

[ReaderY]

Dobbs may cast doubt on the whole thing. But the whole original point of the original seminal cases that led to Roe, Meyer v. Nebraska and Pierce v. Society of Sisters, what caused Justice McReynolds to say we’re not like Plato’s Republic, was the idea that the state can’t simply swoop in, raise a child or have somebody else raise it, and thereby acquire squatters rights against its parents. If having a relationship with the child makes you the parent, then the state can do this. Under Pennsylvania’s theory, since schools act in loco parentis, the state can simply sidestep Puerce and Moore by assigning the school parental rights and then letting it make the child’s educational decisions as the child’s legal parent, subject to only a “best interest of the child@ standard as the state sees it.

The court here fails to grapple with the constitutional undergirdings. If the parents’ constitutional interests in their children can so easily be swept away just by finding someone else has been stepping in without any claim the parents have either abandoned their rights or are unfit, then all a state has to do to override parental decision-making whenever it wants is simply go through some paperwork. Parents’ exclusive right to make decisions for their children becomes like states’ exclusive right to control intrastate commerce, a right recognized in theory and occasionally even applied in practice, e.g. when the government’s lawyers made a mistake in their paperwork and didn’t recite the necessary formulas and jump through the necessary hoops.

[Roger S]

That's right. Under this logic, a judge could give custody rights to a babysitter, nanny, neighbor, grandma, or others. It is all arbitrary. It is not even related to the interests of the judge. That is just a buzzphrase that judges use.

[Rev. Arthur L. Kirkland]

The Volokh Conspiracy: Official Legal Blog of Whatever The Fuck Would Cause Someone to Pick this Case for a Blog Post

[Dilan Esper]

Getting Michael H. v. Gerald D. vibes here.

[lobosolo]

When a child is unplanned and the parents unwed, men should have right equal to a woman's right to abortion. In other words, women can choose if they want the legal and financial responsibilities that come with parenthood by aborting a fetus, thus men should be able to choose if they want the legal and financial responsibility and have the ability to reject legal fatherhood.

Did he ever have the chance to take on or reject being the father?