When a lesbian or gay man ended a straight relationship in Pennsylvania, the case law regarding the award of custody of any children of the relationship had for decades been overtly hostile to the lesbian or gay man. In Constant A. v. Paul C.A., 496 A.2d 1 (Pa. Super. Ct. 1985), a panel of the Pennsylvania Superior Court held that, though homosexuality was not a per se basis for denying visitation or partial custody, it was always a relevant consideration in making custody and visitation decisions. Where each of the parents was in a relationship, the heterosexual parent’s”traditional”(whether marital or nonmarital) family environment benefited from a”presumption of regularity.”In contrast, the lesbian or gay parent had to prove that there was no adverse effect on the child from his/her same-sex relationship, creating a presumption against custody or visitation for the lesbian or gay parent. This standard was later applied in Pascarella v. Pascarella, 512 A.2d 715 (Pa. Super. Ct. 1986), to uphold an order granting a gay father partial custody of his children, but restricting him from visiting with his children in the presence of his same-sex partner. But, in Blew v. Verta, 617 A.2d 31 (Pa. Super. Ct. 1992), the court held that other people’s reactions to a mother’s lesbian relationship could not, alone, serve as a basis for restricting her custody.

All of that has now changed for the better. In an en banc decision, the Pennsylvania Superior Court has now overruled these earlier decisions. In M.A.T. v. G.S.T., 2010 Pa. Super. LEXIS 13 (Jan. 21, 2010), the court stated in no uncertain terms:

[W]e overrule both the holding and the reasoning in Constant and its progeny (including Pascarella and Barron), and conclude that a homosexual parent bears no special evidentiary presumption in a child custody case. . . . [I]n establishing an evidentiary presumption against a parent involved in a homosexual relationship, the three-judge panel in Constant violated the basic precept that the sole focus of a child custody proceeding should be on the best interests of the child — without either parent bearing the burden of proof. Moreover, Constant‘s evidentiary presumption is based upon unsupported preconceptions and prejudices — including that the sexual orientation of a parent will have an adverse effect on the child, and that the traditional heterosexual household is superior to that of the household of a parent involved in a same sex relationship. Such preconceptions and prejudices have no proper place in child custody cases, where the decision should be based exclusively upon a determination of the best interests of the child given the evidence presented to the trial court. (Footnotes omitted.)

For some time now, the Pennsylvania courts have been relatively good at handling legal issues involving lesbian and gay families. For example, the Pennsylvania Supreme Court has interpreted state adoption law to permit second-parent adoptions, and it has applied the in loco parentis doctrine to allow a former same-sex partner with no legal connection (e.g., through birth or adoption) to a child of the relationship to nonetheless obtain custody or visitation. This has resulted in a significant dissonance between the advancing state of the law concerning the breakup of lesbian and gay families and the stagnant (notice that Constant and Pascarella both date back to the 1980s) state of the law concerning the breakup of a relationship between a man and a woman, one of whom happens to be lesbian or gay. Though long overdue, the decision in M.A.T. begins to bring these two areas of family law into line by overruling antiquated cases that had placed the focus in child custody cases not on what is best for the child involved, but on expressing hostility toward lesbians and gay men.

-Tony Infanti