When Same-Sex Couples Call It Quits: Can a Non-Biological Mother Get Shared Custody of Their Child?

The Superior Court of Pennsylvania recently addressed the thorny issues that can arise in child custody disputes involving same-sex couples.

Custody Dispute

In R.L. v. M.A., two lesbian women were in a committed romantic relationship in 2012 when they made a decision together to conceive a child by impregnating M.A. via artificial insemination using sperm from R.L’s brother. The couple planned and prepared for the child’s birth together, including decorating a nursery and shopping for baby supplies. R.L. was present at the child’s birth, chose the child’s first name, and the couple decided together to give the child R.L.’s surname. Soon after the child’s birth, the couple broke up.

Under an informal agreement, the child lived with M.A. and spent every other weekend with R.L. until June 2014, when the women agreed to share 50/50 custody. The child spent alternating weeks with both women until an incident in February 2018, when R.L. called the daycare center where M.A. worked, and the child attended. R.L. complained that M.A. was having too much contact with the child, including taking the child off the premises during the day. As a result of the phone call, M.A. stopped the weekly custody rotation.

R.L. responded by seeking custody of the then 5-year-old child. In August 2018, the trial court awarded shared custody between the two women.

M.A. appealed to the Superior Court, arguing that R.L., as a non-biological mother, did not meet her burden of proof in showing that she should share equal custody with M.A., who had a statutory presumption in her favor as the biological parent.

The Child’s Best Interests

Pennsylvania’s Child Custody Act requires a trial court in ordering any form of custody to determine the best interests of the child by considering all relevant factors.

In upholding the trial court’s award of shared custody, the Superior Court duly noted the reasons why the trial court found that R.L. had met her burden of proof in establishing that shared custody was in the child’s best interests:

The trial court made a finding that Child had been thriving in this 50-50 custody arrangement for 70% of his life, and that the only reason [M.A.] discontinued the week-to-week arrangement was because [M.A.] was upset when R.L. contacted [her] place of employment.

The court further distinguished the present situation involving shared physical custody from one involving primary physical custody in which a third party who is not a biological parent, such as R.L., would have a higher burden of proof in establishing the child’s best interests:

M.A. has failed to cite any legal authority that requires a third party to tip the scale in their favor prior to awarding shared physical custody. Our precedent merely requires the scale to tip to the third party’s side prior to awarding primary physical custody to the third party and, thus, we find no error in the trial court’s finding that, in this case, when the scale was “tipped to even,” an award of shared legal custody was in Child’s best interest.


The parties will share custody, which seems like a good outcome, given the circumstances at hand.

But one interesting issue that the Superior Court did not address is whether the definition of the term “parent” under the Child Custody Act could be expanded to include R.L. since she “did intend to conceive Child and did hold Child out as her own.” The court noted that since the parties had not raised the issue it was “constrained to review this case treating R.L. as a third party rather than a parent.”

As same-sex couples continue to have children, we expect Pennsylvania courts will address that issue at some point in the future.