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Harrisburg, PA (January 26, 2010) –
The law firm
of Daley Zucker Meilton Miner & Gingrich LLC, headquartered in
Harrisburg, PA, announces that the PA Superior Court’s
decision in M.A.T. v. G.S.T., filed January 21, 2010,
and authored by Judge Christine Donohue, removes from
Pennsylvania child custody cases the long-standing presumption
that custody should be awarded to a heterosexual parent as
compared to a parent involved in a homosexual relationship.
“This decision will have reverberations throughout our courts
and, perhaps, even the pages of history. It ends an era of
Court-sanctioned discrimination in child custody cases and
restores the focus of the courts on the best interests of the
child,” says attorney Kathleen Misturak-Gingrich, who
successfully argued the case.
Since 1985,
the Pennsylvania courts in child custody cases have applied a
standard that required a homosexual parent to prove “that
exposure to the homosexual relationship has no adverse effect
on a child if exposed to that relationship,” a standard
established by the Pennsylvania Superior Court in the case of
Constant A. v. Paul C.A.
In an
appeal successfully argued by Misturak-Gingrich to a nine
judge panel of that same Court, that standard was squarely
rejected and overruled in a decision rendered on January 21,
2010, in the case of M.A.T. (“Mother) v. G.S.T
(“Father”).
Misturak-Gingrich
successfully argued on appeal for shared physical custody on
behalf of Mother, who had acknowledged a same-sex relationship
during the course of her marriage. She lauded the decision as
a “major victory for the best interests of children in child
custody cases and a major defeat for those who would
discriminate against an otherwise fit parent on the basis of
sexual orientation.”
Misturak-Gingrich
noted that the Trial Court had rejected shared physical
custody despite a strong recommendation of shared physical
custody by an independent custody evaluator and despite the
Court’s own stated recognition of Mother’s parental fitness.
Instead, the Trial Court relied heavily on the presumption
against homosexual parents imposed by Constant A. and
its own bias against joint physical custody of a school-age
child.
"The Superior
Court's decision sends a clear and unambiguous message that it
expects child custody cases to be decided by trial courts
based upon the child's best interests and the evidence of
record, and not upon presumptions of parental fitness or a
judge's unsupported preferences,” said Misturak-Gingrich.
“Mother in this case is very happy to have shared physical
custody restored after so long a wait,” Misturak-Gingrich
added, noting that the Appeal was first argued on March 17,
2009 before a three Judge panel of the Superior Court and then
argued on September 24, 2009 before nine Judges of the
Superior Court. “She knows that shared physical custody is in
the best interests of her daughter,” she said. The Superior
Court agreed.
The family
custody case arose when Mother filed for divorce from Father
and requested shared physical custody of their adopted
daughter. Father sought primary physical custody; however,
Judge Joseph H. Kleinfelter ordered the couple to share
custody under a 3-2-2-3 cycle for an 18-month “transition”
period before Father received primary custody. Mother appealed
the award of primary custody to Father after the trial court,
by Order dated August 11, 2008, denied her request to maintain
the shared physical custody arrangement in which the record
evidence reflected the child “was thriving.”
The Trial Court’s decision was based on its application of the
evidentiary presumption against a homosexual parent
established in Constant A. v. Paul C.A. and the Trial
Court’s own opinion that shared physical custody seldom
worked. In so holding, the Trial Court had rejected the
uncontroverted expert testimony recommending shared physical
custody.
“We see the
Superior Court’s decision in M.A.T. first and foremost
as a victory for the protection of children, as the Court has
made it crystal clear that the ‘focus’ in child custody cases
must be ‘the best interests of the child, with a case-by-case
evaluation based on the evidence presented to the Court,” says
Misturak-Gingrich. She added, “We cannot ignore, however, the
historic fundamental fairness implications of the Superior
Court’s decision. It is, unmistakably, a civil rights victory
for parents with same sex partners.”
Misturak-Gingrich
noted the disparity between the Trial Court’s conclusion that
“both Mother and Father were loving, caring parents and each
were quite capable of assuming the role as primary physical
custodian,” and its application of the presumption of
Constant A. which removes the child from being in Mother’s
custody every forty-eight to seventy-two hours
to being in Mother’s custody only two out of every fourteen
days. In this case, application of the presumption
of Constant A. by the Trial Court resulted in injustice
to both the child and to Mother. The Superior Court, sitting
as a full court (En Banc) unanimously agreed.
Writing for
the Superior Court, Judge Christine Donohue opined:
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.
Misturak-Gingrich
observed that the Superior Court “overruled both the holding
and reasoning in Constant A. and later cases and
declared that a homosexual parent no longer bears any special
evidentiary burden in a child custody case.”
“Importantly,
the new standard will no longer consider the sexual
orientation of either parent, but solely the best interests of
the child,” says Misturak-Gingrich.
For an
extensive background, contact Kathleen Misturak-Gingrich at
717.724.9821, Ext. 102 or
kgingrich@dzmmglaw.com.
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