In a
groundbreaking ruling in support of the rights of gay and
lesbian parents, a court in Pennsylvania on Tuesday
said the lesbian partner of the biological parent
of twins should have primary custody of the
children. The decision, by the superior court, upheld a
lower court ruling that Patricia Jones would provide a
better home than her ex-partner, Ellen Boring, even
though Boring is the biological mother of the twins.
"We believe that the record supports a finding by clear
and convincing evidence that the best interests of the
children are served by granting primary physical
custody to Jones, for a number of reasons discussed in
the trial court's opinion," a unanimous three-judge
panel stated in its opinion.
"We are pleased
to see that the court kept its eye on the prize--the
children's best interests--and granted primary
physical custody to the parent who is best able to
provide a stable and loving home, regardless of
biology," said Alphonso David, a staff attorney for Lambda
Legal who argued the case before the court. "This
means that even though there is often just one
biological parent in families headed by same-sex
couples, biology alone does not trump the best interests of
the child." Jones was represented by Lambda Legal, the
National Center for Lesbian Rights, the Center for
Lesbian and Gay Civil Rights, and local counsel
Maureen Gatto of Dorian, Goldstein, Wisniewski, and
Orchinik in Bensalem, Pa.
Jones and Boring
were partners for 14 years. During that time they
planned a family, resulting in twins for whom both Jones and
Boring served as caregivers. After the couple split up
in 2001, the trial court found that Jones had parental
rights to the children and awarded joint custody to
both mothers, giving primary physical custody to Boring.
Later Jones filed for primary physical custody, citing
Boring's history of contempt in observing the
visitation schedule set by the court and her attempts
to unilaterally remove the children from Pennsylvania. The
court found "convincing reasons" that being in Jones's
custody would be in the best interest of the children
and awarded her primary physical custody. That ruling
was appealed by Boring, contending that as she was the
children's biological mother and former primary custodian,
the children could not be removed from her custody
without a finding she is unfit, a very high standard.
The superior court of Pennsylvania found that argument
to be invalid and upheld the lower court's decision to
grant custody to Jones. (Advocate.com)