Julie Auerbach, Astor Weiss Kaplan & Mandel

With the increasing number of individuals other than parents raising children, the question of whether these third parties can incur child support obligations is being presented to the courts.  As a matter of public policy, courts want to encourage the involvement of third parties when either or both parents are unable to care for their children. For this reason, courts have historically been disinclined to impose support obligations on third parties.

Yet not surprisingly, third parties who take custody of children may face claims for child support by either the parents or other third parties. The rationale for these claims is that since the third party is entitled to substantial custodial rights, they should be required to share in the financial obligations attendant with raising a child.

The result is that courts have been placed in the uncomfortable position of deciding whether the generosity of an individual's willingness to care for a child not her own can turn into a binding financial obligation. Clearly, the third party did not choose to have the child. And our society benefits when third parties are willing to assume responsibility for children, especially when neither parent is willing or able to do so. At present, there is no guidance from the legislature on this burgeoning issue.

In the 2015 case of A.S. v. I.S., 130 A.3d 763 (2015), the Pennsylvania Supreme Court held that where a third party insists upon and has become a full parent in every sense of that concept, the third party should share in parental obligations such as child support. There, the mother had custody of twin sons and the father was not involved with the children.  The mother later married another man but she and the stepfather separated four years later. After separation, the mother and the stepfather informally shared physical custody of the children. The mother wanted to relocate to California with the children, and the stepfather filed a petition to prevent the relocation, asserting in loco parentis status. After various court proceedings, the mother was prohibited from relocating and the parties were awarded shared legal and physical custody of the children.

During the pendency of the proceedings, the mother filed a complaint for child support against the stepfather.  The mother's complaint was dismissed by the support master, the trial court and the Superior Court. The Supreme Court reversed.

In support of imposing an obligation, the Supreme Court applied the same public policy rationale behind the doctrine of paternity by estoppel. It noted that "in loco parentis status alone and reasonable acts to maintain a post-separation relationship with stepchildren are insufficient to obligate a stepparent to pay child support for those children." However, where there is a "relentless pursuit of parental duties" by a stepparent against a fit parent, who "has insisted upon and became a full parent in every sense of the concept," the stepparent  has an affirmative obligation to share in parental obligations such as child support. "Equity prohibits stepfather from disavowing his parental status to avoid a support obligation to the children he so vigorously sought to parent … The same public policy attendant with the doctrine of paternity by estoppel is implicated: it is in the best interests of children to have stability and continuity in their parent-child relationships." The court opined that its holding will "increase the likelihood that only individuals who are truly dedicated and intend to be a stable fixture in a child's life will take the steps to litigate and obtain rights equal to those of the parent's child."

Justice Thomas Saylor filed a dissenting opinion stating that this "new doctrine of parentage" should be left to the legislature. Further, he raised an important concern that was not addressed by the majority: What happens if the third party later relinquishes his custodial rights? Does that allow him to terminate his support obligation?

An interesting twist in the case is that during the pendency of the appeals, the stepfather obtained sole physical custody of the children by agreement of the parties.

In the recent case of S.R.G. v D.D.G., — A.3d —-, 2019 PA Super 355,  the Superior Court was called upon to apply the same principles set forth in A.S. v. I.S. to two third parties, namely the maternal grandmother and maternal grandfather. Neither parent was seeking custodial rights. The mother had a history of mental illness and was not capable of raising a child and the father had never been involved with the child and was serving a lengthy prison sentence.

While still married, the maternal grandparents were given physical and legal custody of the child. They later divorced and the maternal grandmother relocated from Pennsylvania to Florida with the child. As a result, an agreed-upon custody order was entered giving the maternal grandparent primary physical custody in Florida and the maternal grandfather partial physical custody in Pennsylvania in the summer and other times throughout the year. The parties agreed to share legal custody.

The  grandmother filed for child support against the grandfather. Because this case involved two third parties, not a third party and a parent, the Superior Court was reluctant to apply A.S. v. I.S. The Superior Court found that the grandparents were not acting as parents and did not seek "to usurp the parental rights of the child's mother and father." "There was no evidence that the parties had ever taken affirmative steps to be parents of the child." Rather the child thought of the parties as his grandparents. Further, the court noted that the parties' claims for custody were not aggressive or hostile to the rights of the parents. They never "sought out a parental role, instead they gratuitously and generously filled the parental void."

The Superior Court went on to state that the circumstances of the case presented a close call. But in the end it relied upon the lack of statutory authority to hold one third party liable for support to another third party. The issue was for the legislature, not the courts to decide.

There are good arguments on both sides. As far as the grandfather is concerned, he did not object to the grandmother relocating to Florida and he should not be penalized for remaining involved with his grandchild. On the other hand, the grandmother is penalized as she must share custodial rights with the grandfather who is not required to substantially share in the financial burden of raising the child. The bulk of the financial burden is now upon her.

The issue is an evolving one and at some point the legislature may be compelled to enact legislation defining the parameters of a third party's child support obligation.

Julie A. Auerbach is a partner at Astor Weiss Kaplan & Mandel. Her practice is focused in the area of family law. She practices in the counties of Philadelphia, Delaware, Chester, Montgomery and Bucks, and has written and lectured extensively on the subject of family law.