Public-domain · open source
OpenJurist

786 A.2d 913

T.B. v. L.R.M.

Supreme Court of Pennsylvania

Decided December 28, 2001

Supreme Court of Pennsylvania · decided 2001-12-28

Key passage — most relied on by later courts

“[T]here is a stringent test for standing in third-party suits for.. .custody due to the respect for the traditionally strong right of parents to raise their children as they see fit. The courts generally find standing in third-party visitation and custody cases only where the legislature specifically authorizes the cause of action. A third party has been permitted to maintain an action for custody, however, where that party stands in loco parentis to the child. 17 The phrase “in loco parentis ” refers to a person who puts oneself in the situation of a lawful parent by assuming the obligations incident to the parental relationship without going through the formality of a legal adoption.... The third party in this type of relationship, however, cannot place himself in loco parentis in defiance of the parents’ wishes and the parent/child relationship.”

quoted by 15 later decisions, including J.F. v. D.B., C.G. v. J.H.

“[Mother] contends that Michael did not adequately prove an in loco parentis relationship. Specifically, she claims he failed to establish that he acted in any significant way in the role of a substitute parent, or ever became an integral part in C.M.’s life. This assertion is contrary to the credible evidence. Between approximately the Spring of 1996, through February 24, 2002, Michael both assumed a parental status and discharged parental duties. Beginning with the parties’, cohabitation, through February of 1999, a period of approximately three years, the parties lived together with C.M., and later with A.L., as a family unit. C.M. referred to Michael as his “dad” and was treated by Michael’s extended family as their own. Furthermore, Michael was recognized in the community and in his church as C.M.’s father. Following their separation, the parties agreed to continued contact between Michael and C.M., which occurred on a regular basis for another three years.”

quoted by 3 later decisions, including C.G. v. J.H., 2003 Pa. Super. 377 - Liebner v. Simcox

Relies on Troxel v. Granville · 193 Wis. 2d 649 - In Re Custody of HSHK · RM v. Baxter Ex Rel. TM

Good law ✅— No negative treatment on recordhow we know

Decided 2001-12-28

How this case has been cited

Cited by 147 later decisions — most recently February 2026 · most notably Commonwealth v. McGill (2003), Morrow v. Balaski (2013)

1 federal appellate · 131 state decisions — followed in 20 states

970200120102020decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

CAPPY, Justice,

¶1concurring.

¶2I join the majority opinion. I note that I fully agree with the majority that this court has never considered “[t]he ability to marry the biological parent and the ability to adopt the subject child [to be] ... factors in determining whether the third party assumed a parental status and discharged parental duties.” Majority slip op. at 8. In fact, we have recently issued a decision that stands for quite the opposite proposition. In Charles v. Stehlik, 560 Pa. 334, 744 A.2d 1255 (2000), we addressed a matter in which the trial court granted custody to the stepfather following the biological mother’s death. The biological father challenged this order. We affirmed the award of custody in favor of the stepfather, even though the stepfather was precluded from adopting the child since the biological father’s parental rights had not been terminated and notwithstanding the fact that there had been no finding that the biological father was unfit. Thus, it is my opinion that a finding that a person may stand in loco parentis to a child regardless of that person’s ability to marry the biological parent or to adopt the child is consonant with established precedent from this court.

SAYLOR, Justice,

¶3dissenting.

¶4I differ with the majority in two essential respects. First, I believe that the child custody provisions of the Domestic Relations Code, 23 P.S. §§ 5301-5314, are due greater emphasis. The majority downplays the significance of the legislative scheme primarily because “Appellee has never relied on a statutory provision and instead has invoked the common law doctrine of in loco parentis.” Maj. Op. at 918. Regardless of the arguments chosen by a particular litigant, however, where the Legislature has created a framework governing all facets of the resolution of child custody disputes, it is questionable whether a common law doctrine can retain independent viability, other than as a reference for contextualizing the legislative policy choices made. See N. SingeR, Suth-erlaND Statutory CoNstruotion § 50:05 (6th ed.2000) (“general and comprehensive legislation, where course of conduct, parties, things affected, limitations and exceptions are minutely described, indicates a legislative intent that the statute should totally supersede and replace the common law dealing with the subject matter”). At all events, a common law doctrine may not, *921after a statutory pronouncement on the same subject, continue to develop in a manner inconsistent with the statute. See id. § 50:01 (“In cases of conflict between legislation and the common law, legislation will govern because it is the latest expression of the law.”). In the child custody arena, therefore, the common law doctrine of in loco parentis should be understood and applied within the framework of the Domestic Relations Code.

¶5As stated in Section 5301 of the Domestic Relations Code, 23 P.S. § 5301, the statutory child custody provisions are intended “to assure a reasonable and continuing contact of the child with both parents after a separation or dissolution of the marriage and the sharing of the rights and responsibilities of child rearing by both parents.” This policy statement implies that child custody disputes are understood as occurring primarily within the framework of biological or legal parenting and the break-up of an attendant marital relationship; this is reinforced by the ensuing provisions, each of which reiterates Section 5301’s emphasis.1 By dismissing as irrelevant Appellee’s statutory incapacities to marry Appellant and to become a legal parent of A.M., the majority undermines the legislature’s prerogative to define the parameters of its own policy.

¶6Moreover, the statute’s focus on legally recognized familial relationships proceeds from fundamental policy considerations, chiefly the long-recognized interest of the natural parent in raising her child without governmental interference (including being forced to defend that interest in court). See generally R.M. v. Baxter, 565 Pa. 619, 627-32, 777 A.2d 446, 451-54 (2001) (Say-lor, J., dissenting). In deference to this fundamental interest, standing to seek custody of the child as against the parent has always been closely circumscribed.2 Significantly, in the only provision of the child custody statute that incorporates in loco parentis, the doctrine is employed to con-fíne, not to expand, the scope of standing to petition for custody. See 23 P.S. § 5313(b) (to establish standing to seek custody of child who is not dependent or at risk, grandparent must demonstrate twelve months of in loco parentis status, in addition to other factors).3 The majority’s invocation of the doctrine to expand standing would therefore appear to be at odds with the Legislature’s expressed, salient intentions.4

¶7*922My second point of disagreement with the majority concerns its application of the in loco parentis doctrine itself. Although the majority refers to the established definition of the doctrine, see Maj. Op. at 916 (citing Commonwealth ex rel. Morgan v. Smith, 429 Pa. 561, 241 A.2d 531 (1968)), its analysis does not attribute weight to the context in which the concept developed. Historically, this Court had confined its consideration of the application of the in loco parentis doctrine to decisions concerning persons with legal or biological ties to the subject child (typically stepparents or blood relatives), as had the intermediate appellate courts, with isolated exceptions.5 This context highlights the defining features of the doctrine, which are not only the practical or emotional, but also the legal, incidents of parenthood. See Commonwealth v. Gerstner, 540 Pa. 116, 124, 656 A.2d 108, 112 (1995) (“In loco parentis describes a relationship in which one assumes the legal rights and duties of parenthood.” (emphasis in original)); Morgan, 429 Pa. at 565, 241 A.2d at 533 (in loco parent “puts himself in the situation of a lawful parent by assuming the obligations incident to the parental relationship”); Kransky v. Glen Alden Coal Co., 354 Pa. 425, 428, 47 A.2d 645, 647 (1946) (in loco parent “assume[s] the rights, duties and responsibilities of a lawful parent to the child”); accord Black’s Law Dictionary 787 (6th ed.l990) (defining in loco parentis as “[i]n the place of the parent; ... charged, factitiously, with a parent’s rights, duties, and responsibilities”). Thus, a faithful application of the in loco parentis doctrine requires, at a minimum, due regard to the legal definitions of the relevant relationships. In this case, because Appellee’s relationships with Appellant and with A.M. are not recognized as familial relationships under Pennsylvania law, see 23 P.S. §§ 1704, 2903, I believe that the Court’s decision to recognize her claim to in loco parentis status vis-á-vis A.M. marks not only a departure from established common law principles, but also one which appears to be in conflict with an expressed legislative design.

¶8There is little doubt that Appellee established close relationships with both A.M. and Appellant. Certainly, those relationships, as well as Appellee’s sincere interest in A.M.’s well being, denote important concerns in the formulation of policy concerning child custody. But there are respectable competing considerations as well, considerations to which the Legislature, whose responsibility it is to weigh *923such factors, has in this instance accorded primacy. As the legislative policy is currently fashioned, emotional bonds and a demonstrated custodial interest, outside of the context of legally recognized familial relationships, are not sufficient grounds to confer standing to petition for child custody over and against the natural parent’s interests.

¶9For these reasons, I respectfully dissent.

Justice CASTILLE joins this dissenting opinion.

¶10. See 23 P.S. §§ 5302-5314 (detailing rights and responsibilities of parties to custody disputes).

¶11. See Ken R. v. Arthur Z., 546 Pa. 49, 55, 682 A.2d 1267, 1271 (1996) ("the legislature has allowed court interference with the parents' right to custody only in rare and exceptional circumstances”); Jackson v. Garland, 424 Pa.Super. 378, 382, 622 A.2d 969, 970-71 (1993) ("The law protects the natural parent’s relationship with his or her child.... In furtherance of this policy, the legislature has specified limited circumstances in which governmental intrusion into the family is warranted.”); cf. Troxel v. Granville, 530 U.S. 57, 73, 120 S.Ct. 2054, 2064, 147 L.Ed.2d 49 (2000) (finding unconstitutional a non-parental visitation statute "which places no limits on either the persons who may petition for visitation or the circumstances in which such a petition may be granted”).

¶12. The legislative history of section 5313(b) reinforces the conclusion that in loco parentis was understood as a limiting factor. See R.M., 565 Pa. at 628-30, 777 A.2d at 452-53 (Saylor, J., dissenting).

¶13. As the Superior Court noted, courts in several states have cited in loco parentis and related doctrines (e.g., "de facto parent,” "psychological parent”) in granting standing to petition for child custody. See T.B. v. L.R.M., 753 A.2d 873, 884 n. 7 (Pa.Super.2000) (citing cases). Notably, however, most such decisions are grounded in legislative policy pronouncements. See, e.g., Rubano v. DiCenzo, 759 A.2d 959 (R.I.2000); V.C. v. M.J.B., 163 N.J. 200, 748 A.2d 539 (N.J. *9222000); Ellison v. Ramos, 130 N.C.App. 389, 502 S.E.2d 891 (1998); In re Custody of C.C.R.S., 892 P.2d 246 (Colo.1995); Bodwell v. Brooks, 141 N.H. 508, 686 A.2d 1179 (1996); cf. Geibe v. Geibe, 571 N.W.2d 774 (Minn.Ct.App.1997) (recognizing in loco par-entis as statutory ground of visitation rights but finding it inapplicable on facts presented); but see E.N.O. v. L.M.M., 429 Mass. 824, 711 N.E.2d 886 (1999) (affirming grant of visitation rights to mother's former same-sex partner, notwithstanding lack of specific statutory authorization, based on probate court's equity jurisdiction); Holtzman v. Knott, 193 Wis.2d 649, 533 N.W.2d 419 (1995) (same). By contrast, in those states whose domestic relations statutes do not recognize the relationship involved as a basis for a custody petition, arguments for standing under in loco parentis and related theories have consistently been rejected. See, e.g., In re Thompson, 11 S.W.3d 913 (Tenn.Ct.App.1999); Kazmierazak v. Query, 736 So.2d 106 (Fla.Dist.Ct.App.1999); In re Marriage of Sleeper, 328 Or. 504, 982 P.2d 1126 (1999); Kathleen C. v. Lisa W., 71 Cal.App.4th 524, 84 Cal.Rptr.2d 48 (1999), and cases cited therein; Titchenal v. Dexter, 166 Vt. 373, 693 A.2d 682, 685-90 (1997); In re Ash, 507 N.W.2d 400 (Iowa 1993); Alison D. v. Virginia M., 77 N.Y.2d 651, 569 N.Y.S.2d 586, 572 N.E.2d 27 (1991).

¶14. I acknowledge that such exceptions include J.A.L. v. E.P.H., 453 Pa.Super. 78, 682 A.2d 1314 (1996), the holding of which the majority endorses here.

/786/a2d/913 · .json · Public domain