LGBT people often have children from heterosexual marriages and with same-sex partners.  When a relationship that includes children ends, the parents must figure out who will have custody of the children.  If people cannot work out a custody arrangement between themselves, a court will work out a custody arrangement.

While Pennsylvania law does not allow courts to deny a legal (biological or adoptive) parent custody solely on the basis of his or her sexual orientation or gender identity, judges may consider a parent’s homosexuality as one factor among many in determining what will be best for the child.

In settling a custody dispute, the single, overriding concern of the court is what will be best for the child’s physical, intellectual, and emotional well-being.

Courts in Pennsylvania start with the presumption that it is best for a child to be cared for by both parents.  They require proof of adverse impact – proof that a parent’s behavior is harming a child – before any aspect of a parent’s behavior including sexual orientation can become a factor in a custody determination.

Factors considered by the court include:

Types of Custody

Legal Custody determines who has the right to make decisions
– including medical, religious, and educational decisions – for the child.

Physical Custody determines where the child lives as well as how the child spends time with each of his or her parents.

There are four basic physical custody arrangements under Pa. law:

In many LGBT families, children are raised – and, for all intents and purposes, parented – by both their legal parent and that parent’s same-sex partner.  If the same-sex partner has done a second-parent adoption, he or she becomes the second legal parent.  But if there has been no second-parent adoption and the relationship breaks up – and the legal parent does not allow the ex-partner access to the children – he or she may want to sue for custody rights.  Please see the section of this website devoted to second-parent adoption for more information on this subject.

Pennsylvania courts allow an ex-partner to sue for custody if they find that this person had a “parent-like” relationship with the child.  The legal term for a parent-like relationship is “in loco parentis” status.  Proving in loco parentis status in court can be complicated and may require an experienced attorney’s assistance.  Call Equality Advocates to discuss your situation if you think that this might apply to you.

Please see the section of the website devoted to non-adoptive parenting for other ways of protecting your relationship with your children.