J-A27006-24
2025 PA Super 31
A.C. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
E.K. :
:
Appellant : No. 717 MDA 2024
Appeal from the Order Entered April 25, 2024
In the Court of Common Pleas of Centre County Civil Division at No(s):
2023-1464
BEFORE: LAZARUS, P.J., KUNSELMAN, J., and McLAUGHLIN, J.
OPINION BY LAZARUS, P.J.: FILED: FEBRUARY 12, 2025
E.K. appeals from the order, entered in the Court of Common Pleas of
Centre County, sustaining Appellee A.C.’s (Mother) preliminary objections and
dismissing E.K.’s counterclaim for custody, finding that that E.K. did not stand
in loco parentis with respect to Mother’s minor child, C.C. (Child) (born May
2019). After careful review, we affirm.
Mother is an associate professor at the Pennsylvania State University—
State College. She holds an undergraduate degree from Stanford University
in the practice of art and African-American studies, as well as masters and
doctoral degrees from the University of California, Berkeley, in African
Diaspora studies with a designated emphasis in women, gender, and
sexuality. E.K. has a degree in philosophy and is a self-employed real estate
developer who owns a company that restores historic, blighted properties in
the Philipsburg area.
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In 2017, prior to meeting E.K., Mother began the in vitro fertilization
process to conceive Child. Mother had a history of fertility issues, including
several miscarriages prior to conceiving Child. On November 27, 2017, Mother
executed a contract with a fertility clinic and began receiving fertility
treatments, including fertilization of her eggs with donor sperm, not E.K.
Those fertilized eggs, which later became embryos, were frozen.
Mother and E.K. met in late-February 2018. In July 2018, Mother
informed E.K. that she was undergoing in vitro fertilization treatments1 to
conceive a child. In August 2018, Child’s embryo was implanted in Mother.
In late September/early October 2018, E.K. moved into Mother’s State College
residence,2 although he retained his own Centre County residence located
approximately 19 minutes away in Lemont.
Mother gave birth to Child in May 2019. E.K. is not the biological father
of Child. Child has always referred to E.K. by his first name. See N.T. Hearing,
1/5/24, at 34. Mother and E.K. were never engaged or married. Id. at 19.
At a hearing to determine whether E.K., as a third party, had standing
to seek custody of Child, E.K. testified that about four months into his
____________________________________________
1 E.K. testified that at this time, the embryo had not yet been implanted in
Mother. See N.T. Hearing, 1/5/24, at 49. Mother testified that at the time
she met E.K., the embryo, that would later be implanted in her after she
started her relationship with E.K., had already been frozen. See N.T. Hearing,
3/27/24, at 24. Mother also testified that she had one unsuccessful
implantation prior to the successful implantation of Child. Id. at 38.
2 E.K. testified that his name was not on the deed to Mother’s house. See
N.T. Hearing, 1/5/24, at 125.
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relationship with Mother, in late June/early July 2018, she shared with him
that she had started “taking preliminary steps towards achieving an in vitro
fertilization.” Id. at 10. E.K. further testified that Mother “told [him] she
would stop [the process] if [he] wanted her to . . . [that s]he gave [him] that
veto power.” Id. E.K. stated that he told Mother he “would be there for her;
that he would support her and that together as a couple . . . [they] would take
this step-by-step [and] embark on this journey of starting a family together.”
Id. See also id. at 19 (E.K. testifying that although Mother and he had an
“unusual” family dynamic, they “were a very typical family [where he was]
the father, [A.C.] was the mother, and it was just sort of a traditional
household where [he] was sort of the man of the house and would take on
those traditional responsibilities”).
E.K. was in the delivery room at the time Mother delivered Child, along
with Child’s maternal grandmother and Mother’s best friend. Maternal
grandmother cut Child’s umbilical cord. Mother is the only parent listed on
Child’s birth certificate. After Child was born, E.K. testified that he “was
present at the house every day . . . [for about] 95 percent of the days for the
first four years of [Child’s] life,” that they “were 100 percent a team . . .
raising a beautiful little girl together.” Id. at 16, 25. E.K. testified that he
supported Mother emotionally “100 percent” after Child’s birth, including
finding online resources to help Mother with Child’s sleep issues and
“advocating for a sleep trainer.” Id. at 22-24.
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E.K. testified that he did “all of the things[,] day in, day out regularly”
for Child, including buying diapers and changing diapers, potty training, taking
her to the bathroom, taking her on skiing outings, walks and hikes, taking her
to the parks and playgrounds around town, reading her bedtime stories “every
night,” reading to Child on a “daily basis,” sleep training, preparing her food,
going grocery shopping for the household, taking Child to/from daycare,
taking her to dance class, soccer practice, and swimming classes, and
watching videos with Child. Id. at 16-17, 22-24, 31-35, 38, 148-49. E.K.
testified that, without Mother’s objection, he performed “100 percent” of the
household maintenance that “a typical spouse might do,” including plumbing,
electrical projects, cutting down trees, taking out the trash, taking the dog out
every morning, childproofing, pressure washing the deck, and painting. Id.
at 18. E.K. also testified that he “bought a ton of toys” for Child, that he was
home “every weekend[,]” and that once Child was born, “he started coming
home early every day.” Id. at 19-21.
E.K. testified that he and Child had a “deep bond . . . that is of a father
and daughter [who] love each other deeply.” Id. at 29; id. at 34 (“I was a
dad. [Child would] refer [to me] as E[.], but I was a dad.”). E.K. testified
that Mother “encouraged” E.K. to do story time with Child at bedtime. Id. at
32. E.K. also testified that he would play all kinds of games with Child,
including jumping on the trampoline, playing hide and seek, playing with her
dollhouse, and playing make-believe games like acting out Disney characters.
Id. at 34, 38. E.K. testified that Child flew with Mother to Florida to attend
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E.K.’s sister’s wedding in June 2022, and to visit E.K.’s parents twice. Id. at
37-38. One of Child’s visits to Florida occurred over Christmas, when she
spent the holiday with E.K.’s parents, siblings, and E.K.’s brother in-law. Id.
at 222. E.K.’s father, an anesthesiologist, testified that he worked in a
Johnstown, Pennsylvania hospital 10-12 weeks a year. Id. at 213. When he
was working in Pennsylvania, E.K.’s father testified he would visit Mother,
Child and E.K. “[a]lmost every day” and that the atmosphere in the house
“was just like a family.” Id. at 205. E.K. also testified that Child called E.K.’s
mother “Beste,” which means grandmother in Danish, and stated that Child
and his mother are “really close.” Id. at 69. E.K.’s father, whom Child called
“E[.]DD,” testified that he loved Child as a grandchild, referred to her as a
grandchild, and that he “had a lot of joy being with her and [wished] he could
see her more.” Id. at 208. Finally, E.K.’s father testified that E.K. acted “just
like a father” to Child, that Child “was always asking for [E.K.], and that Child
“always wanted [E.K.] to read her a story at night.” Id. at 209.
Mother testified that she never thought of E.K. as a father to Child.
Specifically, she stated that: she did not ask E.K. to attend and he, in fact,
did not attend any of Mother’s fertility clinic visits, pre-natal appointments, or
childbirth classes when Mother was pregnant with Child; E.K. is not Child’s
guardian or a trustee of Mother’s trust created for Child prior to her birth; E.K.
never had a car seat in his vehicle before the parties’ other child was born;
E.K. only dressed Child “occasionally” as an infant; E.K. never attended
medical appointments for Child; E.K. “changed [Child’s] diaper maybe a
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handful of times;” E.K. did not “active[ly] potty train” Child; E.K. did not
attend tours of daycares; E.K. vacationed often without Mother and Child; and
E.K. only “occasionally” drove Child to daycare. Id., 3/27/24, at 40-83, 89,
131-32, 165, 181. Mother also testified that when Child was an infant, E.K.
would help Mother “with occasional items . . . like hold[ing Child] or giv[ing
Mother] a break while [she] would . . . go to the bathroom or take a shower
or get something to eat.” Id. at 84.
Mother also testified that E.K. would take Child for walks when she got
older, would try to soothe Child when she was crying, and often bought Child
gifts on holidays and birthdays.3 Id. at 84-85, 126. Mother testified that as
Child got older, she allowed E.K. to take Child skiing four to five times at
Tussey Mountain, pick Child up from daycare on those days, and read her
nightly stories at bedtime.4 Id. at 125-26, 192-93. Mother testified that E.K.
did not pay for costs associated with Child’s medical, dental, or vision care,
Mother’s IVF treatment for Child, or medical bills while Mother was pregnant
with Child. Id. at 90-96. Mother testified that E.K. never specifically cooked
for Child but would offer Child some of the food that he made for himself, and
____________________________________________
3 Mother testified that while she thought E.K. had bought a trampoline and
swings for Child when he was living at Mother’s house, E.K. sent Mother an
email in August 2023, telling Mother that he would be coming to pick up “his”
trampoline and swing. Id. at 128.
4 Mother testified that she permitted E.K., among others, to pick Child up from
daycare by putting his name on a consent form. Id. at 181-82. Mother
testified that during COVID, E.K. more regularly picked Child up from daycare.
Id. at 182.
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that while he looked for solutions on the internet to help Mother with Child’s
sleeping issues, he did not make any arrangements to hire a sleep trainer.
Id. at 100, 108-09. Mother testified that she felt that “the intensity with which
[E.K.] approached story [] time with [Child] chang[ed] as [Mother’s]
relationship [with E.K.] got more conflicted and more precarious.” Id. at 194.
With regard to whether they were considered a family unit, Mother
testified that she never considered herself and E.K. as a “parenting team” and
that she never “consent[ed] for him to be [Child’s] parent[,] didn’t chose for
him to be [Child’s] parent[,] didn’t empower him in any way to act as [Child’s]
parent in any significant way[, and] actively told him that he wasn’t [Child’s]
father on many occasions.” Id. 114. See id. at 115-16 (Mother testifying
when E.K. lived with her and Child she “consistent[ly] and articulate[ly]” told
E.K. he was not Child’s father); see also id. at 117-18 (email from E.K. to
Mother, entered as Plaintiff’s Exhibit 46, stating, ”[i]t’s been hurtful to hear
you say you do not want me to be [Child’s] father. I’m asking you to
reconsider for [Child’s] sake.”). In fact, when Mother found out that E.K. had
listed himself as the primary contact for Child’s YMCA swimming class, Mother
emailed the aquatic director and sent her a new form removing E.K. and listing
herself as the only contact for Child’s swimming lessons. Id. at 142. See
also id. at 168 (following daycare incident involving Child, Mother informed
assistant director of daycare that “in the future all waivers need [to be signed
by her and not E.K.]”); N.T. Deposition of Stacey Annette Brobst, 3/21/24, at
9-30 (Child’s supervising teacher at daycare, from May 2022 to March 2024,
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testifying only Mother attended Child’s parent-teacher conferences, filled out
Child’s developmental paperwork/questionnaires, made decisions with regard
to Child, received emails from daycare, or went to programs at school, and
was listed as only parent/guardian on emergency contact list).
In January 2023, Mother and E.K. had a child together, I.F.K.C. I.F.K.C.
was also conceived via in vitro fertilization, this time using a donor egg and
E.K.’s sperm. Although not I.F.K.C.’s biological mother, Mother is I.F.K.C.’s
gestational carrier. E.K. lived with Mother from October 2018 until mid-April
2023, when Mother told E.K. to move out of her home. Mother testified she
asked E.K. to move out because she “felt like the environment in the house
was not good . . . and she didn’t want to be raising two people in that
environment.” N.T. Hearing, 3/27/24, at 115.
After E.K. moved out, Mother permitted E.K. to see Child a couple nights
a week for an hour or two. See N.T. Hearing, 1/5/24, at 27. Eventually,
those visits tapered off until July 2, 2023, when Mother stopped permitting
E.K. to see Child altogether. Id. at 28. E.K. testified that he “repeated[ly]
and regularly” asked Mother to see Child. Id. at 44-47. (E.K. testifying to
emails he sent Mother on July 4, July 5, July 8, July 10, July 11, July 14, July
16 asking when he could see Child again). According to E.K., Mother never
outright told E.K. that he could never see Child again, but, instead, would
engage in a kind of “doublespeak that is difficult to comprehend.” Id. at 50-
51. E.K. testified that he last saw Child when he randomly bumped into Child
and Mother on the street on October 13, 2023. Id. at 52. See id., 3/27/24,
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at 195-96 (Mother testifying after April 21, 2023, when E.K. no longer lived
with her, she “did[ no]t permit him to spend any time with just [Child] at all
after that time[, but] allow[ed] some contact . . . for them to hang out and
socialize a little bit” in the evening at her house); id. at 198 (Mother testifying
she would “occasionally” meet E.K. out at dinner with Child after he moved
out of her house). Twelve days later, on October 25th, Mother texted E.K. on
the “OurFamilyWizard” application that he could no longer contact or see
Child.
On June 29, 2023, Mother filed a complaint against E.K. seeking shared
legal custody and primary physical custody of I.F.K.C. On July 20, 2023,
following a court conference, the court entered an order giving the parties
shared legal custody of I.F.K.C., granting Mother primary physical custody of
I.F.K.C., and giving E.K. periods of physical custody of I.F.K.C.5 On October
24, 2023, E.K. filed an answer and counterclaim to Mother’s custody
complaint, seeking shared legal and physical custody of Child, whom he
averred was “born out of wedlock[, but noted that while he and Mother] have
never been married, [they] were in a relationship and living together for
approximately six (6) months prior to [Child’s] conception.” E.K.’s Answer
and Counterclaim, 10/24/23, at ¶¶ 20-21. In addition, E.K.’s counterclaim
alleged that:
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5 E.K. had physical custody of I.F.K.C. every Monday, Wednesday, and Friday
from 12:00PM-3:00PM and every other weekend beginning July 2, 2023, from
12:00PM to 3:00PM and 4:00PM to 6:00PM on Saturday and Sunday.
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21. [Child] was conceived via IVF with a sperm donor. The parties
were living together at the time of [Child’s] birth and continued to
live together until [Child] was approximately [four] years old.
22. [E.K.] consented to and was supportive of Mother’s choice to
conceive [Child].
23. [E.K.] was in the room at the time of [Child’s] birth. [E.K.]
changed [Child’s] diaper and assisted Mother in nearly all aspects
of caring for [Child] since [Child’s] birth.
…
26. [E.K.], while not the biological father of [Child,] stands in loco
parentis to [Child] and is entitled to seek custody of [Child] under
23 Pa.C.S.[A.] § 5324(b), which provides that “[[a] person who
stands in loco parentis to the child may file an action . . . for any
form of physical custody or legal custody.”
27. [E.K.] has assumed the obligations incident to the parental
relationship with respect to [Child] has provided care, nurture,
and affection, and has assumed a stature like that of a parent to
Child].
28. [E.K.] believes and therefore avers that [Child’s] best interest
will be served by the parties sharing legal custody and physical
custody of [C]hild.
Id. at ¶¶ 21-23, 26-28.
Mother filed preliminary objections challenging E.K.’s counterclaim for
custody of Child on the grounds that he lacked standing because E.K. “does
not stand in loco parentis to [Child]” and requested the court schedule an
evidentiary hearing on the matter. Mother’s Preliminary Objections, 11/7/23,
at ¶¶ 9, 16. See Pa.R.C.P. 1028(a)(5) (preliminary objections based on lack
of capacity to sue). “In direct contradiction to the facts alleged in [E.K.’s]
Counterclaim,” Mother averred the following:
a. Mother and [E.K.] did not intend for [E.K.] to be a parent of
[Child];
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b. Mother did not seek [E.K.’s] “consent” to Mother’s efforts to
birth [Child] via alternative reproductive technologies, which in
fact she started significantly before even meeting [E.K.];
c. [E.K.] is not listed on [Child’s] birth certificate;
d. [Child] does not bear [E.K.’s] last name;
e. [E.K.] was never named as a guardian for [Child] in the event
Mother could not care for [C]hild;
f. Mother never suggested [E.K.] adopt [Child];
g. Mother and [E.K.] never took any steps to formalize a coparenting agreement relative to [Child];
h. [E.K.] was involved in the life of [Child] merely as Mother’s
significant other;
i. All interactions between [E.K.] and [Child] were incident to
Mother’s relationship with [E.K.];
j. [E.K.] has provided no financial support for [Child], from
conception to the present date;
k. [E.K.] did not assume a key caretaking, financial, parental or
decision[-]making role in [Child’s] life; and
l. ln the eyes of [Child], [E.K.] has not assumed the stature of a
parent.
Mother’s Preliminary Objections, 11/7/23, at ¶¶ 18(a.-l.). E.K. filed a
response to Mother’s preliminary objections, disputing her allegations that he
did not stand in loco parentis to Child. See E.K.’s Response to Preliminary
Objections, 1/27/23, at ¶¶ 1, 3, 17-18.
Following three days of hearings held in January, March and April 2024,
the court sustained Mother’s preliminary objections and dismissed E.K.’s
counterclaim for custody of Child, concluding that that E.K. did not stand in
loco parentis with respect to Child.
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E.K. filed a timely notice of appeal and court-ordered Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. E.K. raises the following
issues for our consideration:
(1) Whether the [t]rial [c]ourt committed an error of law in its
application of the current state of the law and its analysis of
23 Pa.C.S.[A.] § 5324(2).
(2) Whether the [t]rial [c]ourt erred in finding that [E.K.] does
not stand in loco parentis status to [C]hild.
(3) Whether the [t]rial [c]ourt erred in finding that [E.K.] did
not develop or assume a father-child relationship with
[C]hild for in loco parentis purposes under 23 Pa.C.S.[A.] §
5324(2) and, instead, only discharged duties ancillary to his
role as Mother’s live-in boyfriend.
(4) Whether the [t]rial [c]ourt erred when it failed to apply the
law and issued a finding that is contrary to the evidence
established at trial which demonstrates [E.K.], Mother, and
[C]hild lived in a family setting as a unit.
Appellant’s Brief, at 4.
Typically, absent a prima facie right to custody, a third party lacks
standing to seek custody as against the natural parent. Gradwell v.
Strausser, 610 A.2d 999, 1002 (Pa. Super. 1992). The exception to this
third-party-lack-of-standing preclusion is proof that such a party stands in
loco parentis, that is, where he or she has assumed obligations incident to the
parental relationship.
Id. Pennsylvania’s child custody statute, 23 Pa.C.S.A.
5324(2), specifically authorizes a person who stands in loco parentis to
commence a custody action. Section 5324 states, in relevant part:
The following individuals may file an action under this
chapter for any form of physical custody or legal custody:
(1) A parent of the child.
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(2) A person who stands in loco parentis to
the child.
(3) A grandparent of the child who is not in loco
parentis to the child[.]
23 Pa.C.S.A. § 5324 (emphasis and italics added).
Threshold issues of standing are questions of law; thus, our standard of
review is de novo and our scope of review is plenary. K.W. v. S.L., 157 A.3d
489, 504 (Pa. Super. 2017). However, “a challenge to asserted in loco
parentis status in a particular context involves a fact-intensive inquiry, and
may implicate mixed questions of law and fact.” In the Int. of K.N.L.,
284
A.3d 121, 132 (Pa. 2022).
In determining preliminary objections as to standing that turn on
questions of fact, a trial court must hear testimony and admit
other evidence into the record. See C.G. v. J.H., [] 172 A.3d 43,
54 (Pa. Super. 2017)[.] We have explained that, when “a trial
court holds such an evidentiary hearing, it must weigh the
evidence and make credibility determinations to resolve any
conflicts in the testimony.” Id.
Hunt v. Vardaro,
317 A.3d 1046, 1050-51 (Pa. Super. 2024).
“The term in loco parentis literally means in the place of a parent.”
Raymond v. Raymond, 279 A.3d 620, 627 (Pa. Super. 2022) (citation and
quotation marks omitted). It is well-established that “[i]n loco parentis is a
legal status and proof of essential facts is required to support a conclusion
that such a relationship exists.” T.B. v. L.R.M.,
786 A.2d 913, 916 (Pa. 2001),
citing Kransky v. Glen Alden Coal Co.,
47 A.2d 645, 646 (Pa. 1946). In
J.A.L. v. E.P.H.,
682 A.2d 1314 (Pa. Super. 1996), our Court explained the
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principle behind granting in loco parentis status to third parties for custody
purposes:
The in loco parentis basis for standing recognizes the need to
guard the family from intrusions by third parties and to protect
the rights of the natural parent must be tempered by the
paramount need to protect the child’s best interest. Thus, while
it is presumed that a child’s best interest is served by maintaining
the family’s privacy and autonomy, that presumption must give
way where the child has established strong psychological
bonds with a person who, although not a biological parent,
has lived with the child and provided care, nurture, and
affection, assuming in the child’s eye a stature like that of
a parent. Where such relationship is shown, our courts recognize
that the child’s best interest requires that the third party be
granted standing so as to have the opportunity to litigate fully the
issue of whether that relationship should be maintained even over
a natural parent’s objections.
Id. at 1319-20 (emphasis added). Moreover, in J.A.L., our Court
acknowledged that it has been “suggested that where a petitioner who is not
biologically related to the child[,] but has established a parent-like relationship
with the child[,] seeks not to supplant the natural parent, but only to maintain
his relationship with the child through reasonable visitation or partial custody,
his burden to establish standing is easier.”
Id. at 1320, citing
Commonwealth ex rel. Patricia L.F. v. Malbert J.F.,
420 A.2d 572, 574
(Pa. Super. 1980). Further expounding on the concept of in loco parentis
status, our Court stated:
In today’s society, where increased mobility, changes in social
mores[,] and increased individual freedom have created a wide
spectrum of arrangements filling the role of the traditional nuclear
family, flexibility in the application of standing principles is
required in order to adapt those principles to the interests of each
particular child. We do not suggest abandonment of the rule that
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a petitioner for custody who is not biologically related to
the child in question must prove that a parent-like
relationship has been forged through the parties’ conduct.
However, we hold that the fact that the petitioner lived with the
child and the natural parent in a family setting, whether a
traditional family or a nontraditional one, and developed a
relationship with the child as a result of the participation
and acquiescence of the natural parent must be an important
factor in determining whether the petitioner has standing.
Additionally, where only limited custody rights are sought, the
limited nature of the intrusion into the biological family must be
considered in deciding whether standing has been made out.
J.A.L., 682 A.2d at 1320-21 (emphasis added). “Accordingly, courts must
reinforce the express statutory limitations to standing in private custody
actions, albeit not so rigidly or absolutely as to deny one acting in loco parentis
an opportunity to be heard, and not without regard for traditional standing
principles.” K.N.L., 284 A.3d at 139, citing T.B. v. L.R.M.,
786 A.2d at 919-
20 (“A determination of standing simply implies that the party has a
substantial interest in the subject matter of the litigation and that the interest
is direct, immediate[,] and not a remote consequence.”).
Notably, in T.B. v. L.R.M., 786 A.2d 913, 917, our Supreme Court
established that “[t]he third party . . . can[]not place himself in loco parentis
in defiance of the parents’ wishes and the parent/child relationship.” See
K.N.L., 284 A.3d at 144 (“[t]he assumption of a parental role must originate
with a legal parent’s assent, whether through encouragement or
acquiescence”) (emphasis added). “Furthermore, . . . any purported ‘defiance’
of a parent’s wishes—as it relates to a third party’s in loco parentis status—
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corresponds to the formation of the parent-child relationship with the third
party, not its continuation.” Id.
Instantly, the trial court found Mother credible when she testified that
she did not hold E.K. out as Child’s father and that E.K. never assumed the
obligations incident to a parental relationship or discharged parental duties
with respect to raising Child—the focus of an in loco parentis analysis.
Although it is clear that E.K. was part of Child’s life for almost four years, from
the moment of her birth until Mother asked him to move out of her home,
Mother’s testimony supports the conclusion that they did not live as a “family
unit” and that Mother and E.K. did not co-parent Child. Rather, Mother
consistently and intentionally let E.K. know that she did not assent to E.K.
“assuming parental status” as a father-like figure to Child. See id. at 145
(“What is significant [in determining whether third party assumed a parental
status and discharged parental duties] is the third party’s relationship to the
child, and how that relationship was forged, i.e., through assented assumption
of a position more significant to the child than a frequent caretaker.”).
Mother classified E.K. as a “an ex-boyfriend who was living with me
sometimes, supporting me and helping me during the course of our
relationship[,] and maybe executing care that was commensurate with his
relationship to me, his romantic relationship to me.” N.T. Hearing, 3/27/24,
at 114. See also id. at 153 (Mother testifying she thought of E.K. as “a
romantic partner [and] never thought of him as [Child’s] dad or consented to
him being [Child’s] dad.”). Mother testified that E.K. only occasionally bought
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groceries for Mother and Child, never made regular payments toward the
mortgage on Mother’s house, and only did “some small acts of household
maintenance” while he was living with Mother. Id. at 158, 161. Mother
specifically testified:
I think [E.K.] has assumed activities or interactions or tasks, I
don’t know, obligations, whatever you want to call them,
incidental to my relationship with [Child], not his parental
responsibilities.
In other words, [E.K.]—what [E.K.] did for and with [Child] over
the course of the relationship from the time that she was born
until [she was] roughly three-and-[a]-half when he left w[as] not
up to the level of parental responsibilities in terms of care or
nurture.
He definitely provided affection. I would say, you know, he offered
affection in that way. Maybe he nurtured her at times, but the
level of care was not that of a parent.
Id. at 207 (emphasis added). See also id. at 213 (Mother testifying E.K.
“helped around the house[,] was involved in the life of [Child] as [Mother’s]
partner, not a parent, and[,] . . . later on in [Child’s] life[, he was involved in]
story time”).
While E.K. and Child admittedly shared a bond, Mother testified, and the
evidence showed that that bond was more of a close friendship, rather than a
parent-child bond. See id., 4/22/24, at 33; id. at 73 (Mother testifying Child
called E.K. her “best buddy”); K.N.L., 284 A.3d at 136 (standing
demonstrated where individual demonstrates “he or she has ‘a substantial
interest in the subject matter of the litigation that must be direct and
immediate, rather than remote, and which distinguishes his interest form
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the common interest of other citizens’”) (emphasis added). Cf. A.J.B. v.
A.G.B., 180 A.3d 1263 (Pa. Super. 2018) (ex-wife granted in loco parentis
status in custody dispute with mother and father of child, where ex-wife:
participated in pregnancy and preparations for child’s birth; was married to
mother at time of child’s birth; intended to jointly raise child with mother; was
named as parent on child’s birth certificate; was involved in naming child; was
involved financially and otherwise with child during and after marriage; held
herself out as child’s parent; court held ex-wife’s relationship with child that
was fostered by mother could not be erased); M.L.S. v. T.H.-S.,
195 A.3d
265 (Pa. Super. 2018) (step-father, an active-duty member of the United
States Navy stationed in North Carolina, stood in loco parentis to Child where
he: frequently traveled to child’s home state to spend time with him and
child’s mother, where he read child bedtime stories, assisted child with his
homework, attended parent-child conferences with mother, assisted in
addressing child’s social issues at school, taught child basic male grooming,
assisted child in playing musical instrument, went on social outings with child,
and listed child as his dependent so he could receive medical and dental
benefits as part of step-father’s military benefits package).
Thus, based upon a comprehensive review of the record, and mindful of
the appropriate standard and scope of review, we conclude that the trial court
correctly determined E.K. did not stand in loco parentis to Child. The trial
court’s findings and credibility determinations are supported in the record.
See K.N.L., 284 A.3d at 133 (appellate court compelled to perform
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comprehensive review of record for assurance the findings and credibility
determinations are competently supported) (citation omitted). See C.G. v.
J.H., 193 A.3d 891 (Pa. 2018) (former same-sex, unmarried partner of
biological mother lacked standing to seek custody of biological mother’s child
as child was conceived via assisted reproductive means using anonymous
sperm donor, pursuant to contract only signed by biological mother, such that
partner was not biological parent, did not intend to conceive and raise child,
and had not adopted child; partner’s pre-separation contributions “did not
amount to the discharge of parental duties,” even where partner contributed
financially to household overall, and biological mother did not encourage
partner to assume parental status).
Admittedly, few of these cases are clear-cut or simple to analyze given
the ever-changing landscape of today’s family model. Nonetheless, we must
remain true to the well-established principle that a party “who is not
biologically related to the child in question must prove that a parent-like
relationship has been forged through the parties’ conduct.” J.A.L., 682
A.2d at 1321 (emphasis added). To do otherwise would carve a dangerous
exception into the principle of standing and, more specifically, infiltrate “the
protected domain of the family.”
Id. at 1319.
Order affirmed.6
____________________________________________
6 We commend the trial judge, the Honorable Brian K. Marshall, who
painstakingly analyzed this fact-intensive matter, which included presiding
(Footnote Continued Next Page)
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Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 02/12/2025
____________________________________________
over three days of hearings involving multiple witnesses. Although he found
Mother credible and, ultimately, concluded that E.K. did not stand in loco
parentis to Child, Judge Marshall rendered a balanced decision that recognized
Mother’s “narrow-minded” views on parenting and child-rearing, her “short
sighted family planning decisions,” and the “hypocritical” manner in which she
navigated this, admittedly, “complex arrangement” among the parties. Trial
Court Opinion, 4/24/24, at 5-6. Nonetheless, Judge Marshall’s ultimate ruling
is in conformity with the state of the law, which is of paramount importance
to us as an error-correcting court.
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