J-A15034-17

2017 PA Super 320

C.G. IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

J.H.

No. 1733 MDA 2016

Appeal from the Order Entered September 22, 2016

In the Court of Common Pleas of Centre County

Civil Division at No(s): 2015-4710

BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.

OPINION BY SOLANO, J.: FILED OCTOBER 11, 2017

Appellant C.G. appeals from the order sustaining Appellee J.H.’s 

preliminary objection to C.G.’s standing to seek custody of a ten-year-old 

child, J.W.H., who is J.H.’s biological son. We affirm. 

J.W.H. was born in Florida in October 2006, while C.G. and J.H. lived 

together as a same-sex couple. The child was conceived by intrauterine 

insemination. C.G. and J.H. continued to live together for about five more 

years, and they then separated. J.H. and J.W.H. moved to a separate 

residence in Florida in February 2012 and moved to Pennsylvania in July 

2012. Trial Ct. Op., 9/22/16, at 1-2.

C.G. instituted this action on December 8, 2015, seeking shared legal 

custody and partial physical custody of J.W.H. She averred that although 

J.H. is the biological mother of the child, C.G. “also acted (and acts) as a 

mother to the minor child as well, as the minor child was conceived by 
J-A15034-17

- 2 -

mutual consent of the parties, with the intent that both parties would coparent and act as mothers to the minor child.” Custody Compl. at ¶ 3. C.G. 

stated that the child lived with her and J.H. from his birth in 2006 until the 

parties’ separation in January or February of 2012. Id.; see N.T., 2/5/16, 

at 5-6 (correcting date of separation). C.G. alleged that both she and J.H. 

participated in selecting a sperm donor and that C.G. “served daily as the 

minor child’s mother, by attending pre-natal appointments, participating in 

the birth of the minor child, cutting the cord when the minor child was born, 

and otherwise serving as [the child’s] mother along with [J.H.].” Custody 

Compl. at ¶ 7(B), (C). 

On January 6, 2016, J.H. filed preliminary objections that challenged 

C.G.’s standing to seek custody. Specifically, J.H. sought dismissal of the 

complaint pursuant to Pa.R.Civ.P. 1028(a)(5) (“lack of capacity to sue . . . .”) 

and (4) (“legal insufficiency of a pleading (demurrer)”). J.H. disputed the 

averments in C.G.’s custody complaint. J.H. alleged that the decision to 

have a child was hers alone, C.G. did not want to have another child,

1 and 

J.H. alone selected the sperm donor and paid all costs associated with the 

intrauterine insemination. Defendant’s Prelim. Objs. at ¶ 12(a)-(c). In 

addition, J.H. stated that she has acted as the child’s sole parent since his 

birth, and C.G.’s role was “solely that of [J.H.]’s girlfriend from the child’s 

birth until November 2011, when [C.G.] cheated on [J.H.].” Id. at ¶ 12(e). 

____________________________________________

1 C.G. had two children from a previous relationship.
J-A15034-17

- 3 -

J.H. averred that she has provided almost all of the financial support for the 

child and made all decisions regarding the child’s education, medical care, 

and development. Id. at ¶ 12(f)-(g). J.H. said that she and the child 

moved out of C.G.’s Florida house in February 2012 at C.G.’s request and 

moved to Pennsylvania at the end of July 2012. Id. at ¶ 12(i). According to

J.H., after she and the child moved to Pennsylvania, C.G. spoke minimally to 

the child and provided almost no financial support. Id. at ¶ 12(j).

C.G. filed a response to the preliminary objections, asserting that she 

had standing under the Child Custody Law both as a parent of the child, see 

23 Pa.C.S. § 5324(1), and as a person who stood in loco parentis to the 

child, see id. § 5324(2).2

On February 5, April 12, and June 20, 2016, the trial court held 

hearings on the preliminary objections, during which it received conflicting 

testimony from sixteen witnesses about C.G.’s role in the child’s life. On 

September 22, 2016, the trial court issued an opinion and order that 

____________________________________________

2 Section 5324 provides:

Standing for any form of physical custody or legal 

custody. 

The following individuals may file an action under this chapter for 

any form of physical custody or legal custody:

(1) A parent of the child.

(2) A person who stands in loco parentis to the child.

(3) A grandparent of the child who is not in loco parentis to the 

child [under specified conditions not relevant here].
J-A15034-17

- 4 -

sustained J.H.’s preliminary objection to C.G.’s standing under Rule 

1028(a)(5) and dismissed the custody complaint with prejudice. The court 

dismissed J.H.’s demurrer under Rule 1028(a)(4) as moot. 

The court held that C.G. did not have standing as a parent of J.W.H., 

explaining: “[b]oth parties agree that at the time and place of the child’s 

birth, [C.G.] was not considered a parent of the child because same-sex 

marriage and second parent adoption was not yet recognized in Florida in 

2006.” Trial Ct. Op. at 3. In the court’s view, the controlling question 

therefore was whether C.G. stood in loco parentis to J.W.H. In turning to 

that question, the court recognized that “[a] domestic partner with no 

biological connection to a child may stand in loco parentis to a child,” id. at 

4, and that it therefore needed to consider “whether the third party lived 

with the child and the natural parent in a family setting, irrespective of its 

traditional or nontraditional composition, and developed a relationship with 

the child as a result of the participation and acquiescence of the natural 

parent.” Id. (quoting Bupp v. Bupp, 718 A.2d 1278, 1281 (Pa. Super. 

1998)). 

The court then engaged in an extensive review of the evidence from 

the hearing. The court began:

The issue before the Court is whether [C.G.] assumed 

parental duties and obligations for the child, as alleged by 

[C.G.], or merely was involved in the child’s life as [J.H.]’s 

significant other, as argued by [J.H.]. [J.H.] was added to the 

deed to [C.G.]’s house, and a joint home equity line of credit 

was obtained by the parties to renovate the residence prior to 

the child’s birth. The parties agree that [J.H.] went through the 
J-A15034-17

- 5 -

insemination process during their relationship while the parties 

were living together. [J.H.] and child lived with [C.G.] in Florida 

for nearly six years of his life, and the child referred to [C.G.] as 

“Mama Cindy” and [J.H.] as “Mom.” The parties had a 

commitment ceremony, baby shower, and both parties were 

present for the child’s birth and christening. 

Outside these basic facts [C.G.]’s testimony and [J.H.]’s 

testimony is often in direct conflict. . . . [C.G.] testified that she 

is a parent, acted like a parent, and was held out as a parent to 

others and to the child, while [J.H.] claims [C.G.] had no desire 

or intent to parent the child, and all interactions between [C.G.] 

and the child were merely incidental to [C.G.] and [J.H.]’s 

relationship.

Trial Ct. Op. at 5. The court said that it had to resolve this “direct conflict” 

by assessing the credibility of the witnesses and the weight of the testimony. 

Id. The court engaged in that task by methodically discussing six categories 

of evidence: documents; testimony regarding care for J.W.H.’s physical, 

emotional, and social needs; evidence regarding financial support; 

“perception” evidence; evidence regarding any bond between J.W.H. and 

C.G.; and “post-separation conduct.” Id. at 5-10. 

Citing J.A.L. v. E.P.H., 682 A.2d 1314, 1321 (Pa. Super. 1996), the 

court looked at documents for evidence of “the intent of a party to parent a 

child, particularly in a nontraditional family setting.” Trial Ct. Op. at 5. 

Following the parties’ commitment ceremony in 2005, J.H. wrote a note to 

C.G. that referred to “having a child together” and wrote her another note 

about their mutual “joy and excitement” following J.W.H.’s baby shower. 

But C.G. was not listed on J.W.H.’s birth certificate, and J.W.H. did not bear 

C.G.’s last name. Id. at 6. The court found that the parties “took no steps 
J-A15034-17

- 6 -

to formalize a co-parenting arrangement” and executed no documents to 

that effect; nor did they consider adoption by C.G. after second parent 

adoptions became legal in Florida in 2010. Id. J.H.’s brother and sister-inlaw (not C.G.) were chosen as J.W.H.’s godparents, and C.G. was not named 

as J.W.H.’s guardian in the event J.H. could not care for him. Id. at 7. C.G. 

did list J.W.H. as her “son” and a beneficiary on her life insurance policy. 

Id. at 6. On the other hand, C.G. “was not listed as a parent or sponsor on 

school documents, but was merely an emergency contact, or . . . not listed 

at all.” Id. at 7. On medical documents, C.G. was “listed as ‘partner’ not 

‘mother’ or ‘parent.’” Id. C.G. initially carried J.W.H. on her medical and 

dental insurance and used her flexible spending account to pay for some of 

his prescriptions and insurance co-payments, but she removed J.W.H. from 

that insurance after she and J.H. separated. The court stated:

While the parties dispute who initiated the removal of the child 

from the insurance, the Court finds [J.H.]’s testimony credible. 

[J.H.] testified that [C.G.] was removing her and the child from 

the policy, and that the child could not remain covered by 

[C.G.]. Such action was consistent with [C.G.]’s post-separation 

conduct of removing [J.H.] and the child from her residence, and 

ending any financial support for the child.

Id. at 6-7. 

With respect to J.W.H.’s “[p]hysical, [e]motional, and [s]ocial needs,” 

the court found:

The pre-separation conduct of [C.G.] and [J.H.] does not 

indicate that they intended [C.G.] to be a parent to the child. 

The testimony varied greatly on the duration and nature of the 

care [C.G.] provided to the child. [C.G.] worked full-time 

Monday through Friday, and [J.H.] worked part-time two or 
J-A15034-17

- 7 -

three evenings a week and on Saturdays for approximately 10-

12 hours a week. [J.H.] disputes that [C.G.] was an equal 

caregiver, and characterizes [C.G.]’s participation in childcare as 

that of a babysitter. Others characterized the interactions 

between [C.G.] and the child as playing, not parenting. [C.G.] 

would relieve the babysitter in the evenings [J.H.] worked, and 

cared for the child until [J.H.] arrived home. [C.G.] testified she 

prepared meals, went on small outings, took the child for 

haircuts, and would sometimes get him ready for bed in the 

evening. [J.H.] testified [C.G.], on occasion, refused to care for 

the child, and she was left to find alternative childcare.

Significantly, [J.H.] did not consult [C.G.] regarding 

educational or medical decisions, such as choosing and paying 

for preschool, activities, or selecting the child’s doctor. 

Similarly, she was the one to schedule doctor appointments, 

child care, and coordinated extracurricular activities. While 

[C.G.] occasionally attended activities and appointments, or 

provided care, she did not have exclusive responsibility for the 

child or assume the role of a decision-maker for the child. The 

[c]ourt finds [J.H.] never encouraged [C.G.] to assume the 

status of parent to her child, nor did [C.G.]’s contributions 

amount to that of a parent.

Trial Ct. Op. at 7-8.

The court found that J.H. “paid for all aspects of the conception 

process.” Trial Ct. Op. at 8. The parties “split household expenses,” but 

J.H. purchased items needed specifically for J.W.H.’s well-being, including 

diapers, clothing, and food. Id. The court found: “The evidence presented 

does not establish [C.G.] assumed financial responsibility for the child. 

Instead, [C.G.] financially contributed to the household overall, and such 

contributions provided a tangential benefit to the child.” Id.

Under the heading “Perception,” the court found:

There is also a dispute regarding whether the parties held 

the child out to others as their child, rather than just [J.H.]’s 

child. Some witnesses perceived both parties to be parents of 
J-A15034-17

- 8 -

the child, while others testified that only [J.H.] was a parent of 

the child. The child referred to [C.G.]’s parents as “Grampa Joe” 

and “Grandma Ann.” [C.G.’s children] testified that they were 

told the child was their brother, though this is disputed by [J.H.]. 

The family would vacation and celebrate special occasions 

together, and send out a Christmas card as a family. These 

extended family members, however, have not reached out to the 

child since he moved to Pennsylvania with the exception of one 

birthday card. Such actions do not indicate a familial 

relationship; rather, it appears that such titles were created as a 

way for the child and [C.G.]’s family to easily refer to one 

another, and such interactions were incidental to [C.G.] and 

[J.H.] being in a relationship.

Trial Ct. Op. at 8.

Citing S.A. v. C.G.R., 856 A.2d 1248, 1250 (Pa. Super. 2004), appeal 

denied sub nom. Ash v. Roberts, 877 A.2d 459 (Pa. 2005), the court 

looked for evidence of “strong psychological bonds” showing that C.G. 

“provided care, nurture, and affection, assuming in the child’s eye a stature 

like that of a parent.” Trial Ct. Op. at 9. Noting that it did not receive the 

type of extensive bonding evidence that might be provided on the merits of 

a custody proceeding, the court nevertheless concluded that the record did 

“not establish a parent/child relationship exists between the child and 

[C.G.].” Id. The court found “that the child is well-adjusted to living in 

Pennsylvania with [J.H.], and that the child does not cry for, request to see, 

or otherwise reach out for [C.G.] as one would expect if a parent/child 

relationship was established between the child and [C.G.].” Id.

Finally, the court found:

Perhaps most telling that [C.G.] did not assume the role of 

a parent is her conduct post-separation. [J.H.] and the child 

moved to a separate residence in Florida in February of 2012, 
J-A15034-17

- 9 -

after [C.G.] made them leave when the relationship ended. 

[C.G.] saw the child approximately once a week between 

February and July 2012, and would attend some of the child’s 

extracurricular activities. Since July 2012, [C.G.] testified that 

she has only seen the child once, in March of 2014 when [J.H.] 

went to Florida, but has spoken to him on the phone 

occasionally. [C.G.] testified she has not paid any child support 

to [J.H.], but did pay for one week of science camp and one 

month of child care in 2012. Additionally, [C.G.] sends the child 

occasional care packages of little monetary value, yet maintains 

she has been willing to pay child support pursuant to a written 

agreement. Further, [C.G.] has not requested to be involved in 

educational, medical, or day-to-day decisions involving the child, 

and [C.G.] never requested copies of documents related to such 

things. Such minimal contact for nearly four years is not 

suggestive of a person who assumed parental status and 

discharged parental duties.

[C.G.] maintains [J.H.] used the child as leverage for a 

settlement on the house. [C.G.] acted under the impression that 

once she paid [J.H.] for her interest in the house, [J.H.] would 

allow her to see the child. The [c]ourt, however, is not 

convinced that [J.H.] withheld the child from [C.G.]. Rather, 

[J.H.] allowed occasional contact by phone, provided updates 

and photographs through email and text messages, and 

accepted nominal gifts from [C.G.]. [J.H.] describes these 

interactions as the same that she shared with her other friends, 

and as consistent with [C.G.]’s level of involvement in the child’s 

life. [J.H.] even provided the opportunity for a face-to-face visit 

when they were in Florida in 2014. Conversely, [C.G.] never 

flew to Pennsylvania to visit the child or assist [J.H.] in the 

discharge of parental duties. Once [C.G.] and [J.H.] no longer 

resided together, [C.G.]’s financial contributions all but ended, 

as her prior contributions were mostly in the nature of household 

expenses. Therefore, the parties’ conduct post-separation is 

consistent with the finding that [C.G.] was not a parent to the 

child.

Trial Ct. Op. at 9-10 (footnote omitted).

In the end, the trial court found that C.G. did not stand in loco parentis

to J.W.H. It stated:
J-A15034-17

- 10 -

The testimony and evidence clearly indicates [C.G.] played a role 

in the child’s early life, but the totality of the circumstances do 

not indicate that [C.G.] “stood in the shoes” of a parent. Rather, 

[C.G.] participated in minor activities and provided financial 

support incidental to living with [J.H.].

Trial Ct. Op. at 5. C.G. “did not assume key financial or caretaking parental 

duties or a decision-making role in the child’s life.” Id. at 10. Although the 

court acknowledged that around the time of J.W.H.’s birth, J.H. wrote two 

affectionate notes regarding the child and that C.G. made J.W.H. a 

beneficiary on her life insurance, the court concluded, “Two letters and one 

policy, coupled with [J.H.]'s testimony that [C.G.] never agreed to have a 

child, but merely tolerated the idea of [J.H.] having a child, do not establish 

[C.G.] as a mother to the child.” Id. at 6. The court therefore sustained 

J.H.’s preliminary objection as to C.G.’s standing and dismissed C.G.’s 

complaint.

On October 17, 2016, C.G. filed a timely notice of appeal. She 

presents the following issues, as stated in her brief:

1. Did the [t]rial [c]ourt abuse its discretion and commit [an] 

error of law by failing to apply the correct legal standard in 

adjudicating [J.H.]’s Preliminary Objections to [C.G.]’s Complaint 

for Custody?

2. Did the [t]rial [c]ourt abuse its discretion and commit [an] 

error of law by finding [C.G.] had no in loco parentis standing to 

seek partial custody of the . . . child pursuant to 23 Pa.C.S. 

Section 5324(2)?

3. Did the [t]rial [c]ourt abuse its discretion and commit [an] 

error of law when it determined that the period of time between 

separation and [C.G.]’s Custody Complaint should be weighted 

significantly in determining the issue of standing?
J-A15034-17

- 11 -

4. Is [C.G.] a legal parent under 23 Pa.C.S. [§] 5324(1)?

C.G.’s Brief at 5.

Standing as a Parent

For ease of disposition, we begin by taking C.G.’s fourth issue out of 

order, as it presents a pure question of law. C.G. contends that the trial 

court erred in finding that she did not have standing as J.W.H.’s parent 

under 23 Pa.C.S. § 5324(1). Although C.G. is not J.W.H.’s biological parent, 

she contends that she and J.H. jointly conceived and raised the child for six 

years, and that biology should not be the controlling factor in determining 

who is a parent.3

The trial court stated: “Both parties agree that at the time and place 

of the child’s birth, [C.G.] was not considered a parent of the child because 

same-sex marriage and second parent adoption was not yet recognized in 

Florida in 2006.[4] As such, [C.G.] has never legally been viewed as a 

____________________________________________

3

In her statement of issues under Appellate Rule 1925(b), C.G. asserted 

that the trial court’s finding that she was not J.W.H.’s parent 

“unconstitutionally restricts persons in a same-sex relationship from being 

able to reproduce and share legal parentage of a minor child.” Pa.R.A.P. 

1925(b) Statement at ¶ 3. In response, in its Rule 1925(a) opinion, the trial 

court said, “[I]n finding [C.G.] was not a parent to the child, the [c]ourt 

focused on her actions and/or lack of actions. This finding in no way 

unconstitutionally restricts persons in a same-sex relationship from being 

able to reproduce and share legal parentage.” Pa.R.A.P. 1925(a) Op., 

10/31/16, at 1. C.G. has not reasserted her constitutional argument in this 

Court.

4 Second parent adoption became legal in Florida in 2010, before the parties 

separated. Trial Ct. Op. at 6. As the trial court found, C.G. made no effort 

to adopt J.W.H. after 2010. 
J-A15034-17

- 12 -

parent to the child . . . .” Trial Ct. Op. at 3. Citing J.A.L., the court noted 

that, under similar circumstances, Pennsylvania courts examine only 

whether the party seeking custody stood in loco parentis to the child. Id.5

This issue is one of statutory interpretation. “In evaluating a trial 

court’s application of a statute, our standard of review is plenary and is 

limited to determining whether the trial court committed an error of law.” 

Commonwealth v. McFadden, 156 A.3d 299, 305 (Pa. Super. 2017) 

(citation omitted).

The Child Custody Law confers standing on a “parent of the child,” but 

does not define “parent.” See 23 Pa.C.S. § 5324(1). Pennsylvania courts 

have interpreted “parent” to include only biological parents and adoptive 

parents. See T.B. v. L.R.M., 786 A.2d 913, 916 n.6 (Pa. 2001) (“Persons 

other than biological parents are ‘third parties’ for purposes of custody 

disputes” (citation omitted)); Faust v. Messinger, 497 A.2d 1351, 1353 

(Pa. Super. 1985) (noting that after adoption, child attains status of natural 

child of adoptive parents). Thus, in T.B., the Supreme Court addressed only 

whether the biological mother’s former life partner (who did not adopt the 

child) had in loco parentis status, not whether she was a parent. T.B., 786 

A.2d at 916. Similarly, in J.A.L., we stated that a biological mother’s former 

life partner could be granted standing, “if at all, only as a third party who 

____________________________________________

5 As J.H. and C.G. were not married when J.W.H. was born (or thereafter), 

we need not consider here the parental status of the same-sex spouse of a 

biological mother.
J-A15034-17

- 13 -

has stood in loco parentis to [the biological mother’s] child.” J.A.L., 682 

A.2d at 1321.

C.G. does not cite any statute or case law establishing that a former 

life partner who has no biological relationship to the child and has not 

adopted the child can be a “parent to the child” under 23 Pa.C.S. § 5324(1). 

Moreover, our case law has consistently treated same-sex life partners who 

have not adopted a child as third parties for purposes of custody matters. 

See T.B., 786 A.2d at 916 n.6; J.A.L., 682 A.2d at 1321. Accordingly, we 

conclude that under our case law, the trial court did not err in finding that 

C.G. lacked standing as a parent under Section 5324(1), particularly since 

the parties had agreed that C.G. was not a parent when the child was born.

Standing Through In Loco Parentis Status

C.G.’s remaining issues relate to the trial court’s determination that 

she does not stand in loco parentis to J.W.H. and therefore lacks standing on 

that basis. The Child Custody Law confers standing on “[a] person who 

stands in loco parentis to the child.” 23 Pa.C.S. § 5324(2). “The phrase ‘in 

loco parentis’ refers to a person who puts oneself in the situation of a lawful 

parent by assuming the obligations incident to the parental relationship 

without going through the formality of a legal adoption.” T.B., 786 A.2d at 

916-17. 

The trial court found that C.G. was not in loco parentis to J.W.H. 

following its extensive review of the evidence presented at an evidentiary 

hearing. In T.B., our Supreme Court instructed:
J-A15034-17

- 14 -

The scope of review applied by an appellate court to a child 

custody order is of the broadest type; the appellate court is not 

bound by the deductions or inferences made by the trial court 

from its findings of fact, nor must the reviewing court accept a 

finding that is not supported by competent evidence. However, 

this broad scope of review does not vest an appellate court with 

the duty or privilege of making its own independent 

determination. An appellate court may not interfere with the 

trial court’s factual conclusions unless they are unreasonable in 

view of the trial court’s factual findings and thus represent an 

abuse of discretion. 

786 A.2d at 916 (citations omitted). This scope of review applies to trial 

court decisions regarding standing. See id.; J.F. v. D.B., 897 A.2d 1261, 

1273 (Pa. Super.), appeal denied, 909 A.2d 1290 (Pa. 2006); see also 

Silfies v. Webster, 713 A.2d 639, 642 (Pa. Super. 1998); J.A.L., 682 A.2d 

at 1318. In this connection, we note that, “[o]n factual matters, the hearing 

judge is far better able to assess credibility and weight of testimony than” an 

appellate court. Reilly v. Reilly, 280 A.2d 639, 640 (Pa. Super. 1971). 

“[T]he ultimate test is ‘whether the trial court’s conclusions are 

unreasonable as shown by the evidence of record.’” Silfies, 713 A.2d at 

642 (quoting Moore v. Moore, 634 A.2d 163, 168 n.4 (Pa. 1993)).

Legal Standard Governing Determination of Standing

In her first issue, C.G. contends that the trial court applied the wrong 

legal standard in evaluating her claim to standing. Whether an incorrect 

legal standard was applied is a question of law, and thus our standard of 

review is de novo. Braun v. Wal-Mart Stores, Inc., 106 A.3d 656, 663 

n.8 (Pa. 2014), cert. denied, 136 S. Ct. 1512, 194 L. Ed. 2d 602 (2016).
J-A15034-17

- 15 -

C.G. concedes that “if preliminary objections challenge the ‘factual 

accuracy’ of the complaint leading to the objections, the [c]ourt may hold a 

hearing to resolve the factual disagreements.” C.G.’s Brief at 14-15. Thus, 

she agrees that when she claimed to have standing because she is in loco 

parentis to J.W.H., the trial court properly held a factual hearing to resolve 

J.H.’s preliminary objection to that contention. See id. at 18 

(acknowledging that trial court’s decision to hold a hearing was not an abuse 

of discretion or error of law). However, C.G. argues that J.H.’s preliminary 

objections could be sustained only if it was “‘clear and free from doubt’ from 

all of the facts pleaded that the pleader will be unable to prove facts legally 

sufficient to establish [her] right to relief.” Id. at 15, 19. Though not 

entirely clear, C.G. thus appears to argue that the “clear and free from 

doubt” standard restricted the ability of the trial court to resolve factual 

disputes adversely to her claim of standing, even though the court held a 

factual hearing. In support of her argument, C.G. cites cases that were 

decided on the pleadings and in which no evidentiary hearing was held. See

Bower v. Bower, 611 A.2d 181, 183 (Pa. 1992) (resolving demurrer that 

turned on a pure question of law); Firing v. Kephart, 353 A.2d 833, 835

(Pa. 1976) (resolving demurrer that involved “no factual dispute,” but “only 

a dispute over the interpretation of the Constitution”).6 C.G. also argues 

____________________________________________

6 C.G. also cites Butler v. Illes, 747 A.2d 943 (Pa. Super. 2000). There 

was no evidentiary hearing in that case; the child’s aunt, who was seeking 

custody, conceded that she did not stand in loco parentis. Id. at 945-46.
J-A15034-17

- 16 -

that it was error for the trial court to defer hearings on the merits of her 

custody claim until the court decided whether she had standing. C.G.’s Brief 

at 17-18.

In her response, J.H. points out preliminarily that C.G. did not 

challenge the legal standard applied by the trial court in her statement of 

issues under Appellate Rule 1925(b),7 and J.H. contends that C.G. therefore 

waived this issue. See generally Pa.R.A.P. 1925(b)(4)(vii) (“Issues not 

included in the Statement . . . are waived”); Commonwealth v. Hill, 16 

A.3d 484, 494 (Pa. 2011) (“any issues not raised in a Rule 1925(b) 

statement will be deemed waived”). However, to resolve the other issues 

presented by C.G. in this appeal, all of which relate to whether the trial court 

properly held that C.G. lacks standing to maintain her custody action, we 

necessarily must consider the appropriate legal standard that applies to such 

a claim. This is especially true with respect to C.G.’s second appellate issue 

____________________________________________

7 C.G.’s Rule 1925 Statement raised the following issues:

1. The Trial Court abused its discretion when it found that [C.G.] 

did not have in loco parentis standing to pursue custody rights to 

the minor child, and thereafter dismissed her Custody Complaint.

2. The Trial Court committed an abuse of discretion and error of 

law when it found that [C.G.] was not a parent to the minor child 

at issue.

3. The Trial Court committed an abuse of discretion and error of 

law when it found that [C.G.] was not a parent to the minor child 

at issue, because such a finding unconstitutionally restricts 

persons in a same-sex relationship from being able to reproduce 

and share legal parentage of a minor child.
J-A15034-17

- 17 -

(the first issue listed in her Rule 1925(b) Statement), which asks whether 

the trial court erred when it held that C.G. is not in loco parentis to J.W.H. 

Matters listed in a Rule 1925(b) Statement “will be deemed to include every 

subsidiary issue contained therein which was raised in the trial court.” 

Pa.R.A.P. 1925(b)(4)(v). We therefore decline to find this issue waived.

J.H.’s preliminary objections coupled a Pa.R.Civ.P. 1028(a)(5) 

objection to C.G.’s standing (“capacity to sue”) with a demurrer under Rule 

1028(a)(4). See Defendant’s Prelim. Objs. ¶ 13 (“[J.H.] hereby raises a 

demurrer to [C.G.]’s claims, and seeks dismissal of this action pursuant to 

Pa.R.C.P. 1028(a)(4) and (5), on the basis that [C.G.] fails to state a claim 

upon which relief can be granted and lacks standing to bring an action for 

legal or physical custody of the child”). Because standing goes to a party’s 

capacity to sue, a standing objection is properly raised by an objection under 

Rule 1028(a)(5). See generally K.W. v. S.L., 157 A.3d 498, 504 (Pa. 

Super. 2017) (addressing standing issue raised under Rule 1028(a)(5)); 

Kellogg v. Kellogg, 646 A.2d 1246, 1250 (Pa. Super. 1994) (“a party to a 

civil suit raises a claim that an opposing party has no capacity to sue by way 

of preliminary objection [under] Pa.R.C.P. 1028(a)(5)”). Accordingly, the 

trial court addressed J.H.’s standing issue as a capacity objection and, once 

it ruled in J.H.’s favor on that basis, dismissed J.H.’s demurrer as moot. 

In ruling on these issues, the trial court properly noted the distinction 

between a demurrer, which raises only a question of law, and an objection 

to standing that turns on resolution of fact questions:
J-A15034-17

- 18 -

“[P]reliminary objections in the nature of a demurrer require the 

court to resolve issues solely on the basis of the pleadings; no 

testimony or other evidence outside of the complaint may be 

considered to dispose of the legal issues presented by a 

demurrer.” Morley v. Gory, 2002 PA Super. 421, 814 A.2d 

762, 764 [(Pa. Super. 2002)] (citation omitted). Standing, 

however, is “a necessary threshold issue which must be 

determined before proceeding to the central question in the 

underlying custody action regarding who should exercise custody 

over Child.” K.C. v. L.A., [128 A.3d 774, 779 (Pa. 2015)] 

(citation omitted). . . . [I]t is proper for a court to hear 

testimony and admit other evidence into the record in order to 

determine a preliminary objection as to standing.

Trial Ct. Op. at 2-3 (some formatting altered). This distinction is critical to 

C.G.’s first issue. While standing issues sometimes can turn on pure 

questions of law,8they more commonly turn on questions of fact. When 

they do, Rule 1028(c)(2) governs their disposition: “If an issue of fact is 

raised, the court shall consider evidence by depositions or otherwise.” 

Pa.R.Civ.P. 1028(c)(2). This rule mandates that the court resolve factual 

disputes by hearing evidence, rather than making a non-evidentiary 

judgment on the basis of the disputed factual allegations: “The trial court 

may not reach a determination based upon its view of the controverted 

facts, but must resolve the dispute by receiving evidence thereon through 

interrogatories, depositions, or an evidentiary hearing.” Am. Hous. Tr., III 

____________________________________________

8 C.G.’s claim to standing as J.W.H.’s parent is one such example. See also,

e.g., D.P. v. G.J.P., 146 A.3d 204, 217 (Pa. 2016) (rejecting grandparents’ 

standing claim as matter of law because statute purporting to confer 

standing was unconstitutional); K.W., 157 A.3d at 504-07 (rejecting 

prospective adoptive parents’ standing claim as matter of law because it was 

undisputed that biological parent had not expressly consented to their in loco 

parentis status).
J-A15034-17

- 19 -

v. Jones, 696 A.2d 1181, 1185 (Pa. 1997) (citation omitted). When, as 

here, a trial court holds such an evidentiary hearing, it must weigh the 

evidence and make credibility determinations to resolve any conflicts in the 

testimony. See, e.g., T.B., 786 A.2d at 919 (approving of trial court’s 

resolution of standing question and stating, “Although the parties gave 

conflicting versions of what role Appellee played in [the child]’s life, the 

hearing officer resolved questions of credibility in Appellee’s favor”).

As the trial court observed, this hearing procedure is fundamentally 

different from what happens on a demurrer. A demurrer tests only whether, 

as a matter of law, the pleaded allegations may entitle the pleader to relief. 

To answer that question, the pleader’s factual allegations are accepted as 

true; because there are no other “facts” before the court, the trial court has 

no basis to assume otherwise. And because neither party has had any 

opportunity to present evidence showing what the facts actually are, the law 

precludes dismissal unless it is “clear and free from doubt” that no relief may 

be obtained under the pleader’s allegations. See generally Firing, 353 

A.2d at 834-35; Mellon Bank, N.A. v. Fabinyi, 650 A.2d 895, 899 (Pa. 

Super. 1994). 

But once each side’s evidence has been presented at a hearing, the 

pleaded facts no longer are determinative; it is the actual proof that counts. 

The hearing will determine what the facts actually are. Therefore, on 

preliminary objections that require a factual hearing, the plaintiff’s factual 

allegations no longer are presumed to be true and there is no longer any 
J-A15034-17

- 20 -

need to give the plaintiff the benefit of any doubt about its case. Those 

doubts will have been resolved. Therefore, C.G.’s position that after holding 

the factual hearing on standing, the trial court still was required to rule in 

C.G.’s favor so long as she presented a colorable claim to standing that 

could survive the “clear and free from doubt” standard applicable to a 

demurrer is incorrect. The purpose of a hearing is to replace the colorable 

claim with decided facts and thereby to make the facts of the case clear and 

free from doubt. 

Such a definitive resolution by a hearing is especially important when 

the preliminary objections present a standing issue regarding whether a 

putative custody plaintiff has in loco parentis status. Recognition of that 

status confers on the plaintiff a prima facie claim to custody. McDonel v. 

Sohn, 762 A.2d 1101, 1106 (Pa. Super. 2000), appeal denied, 782 A.2d 

547 (Pa. 2001). It thus grants that plaintiff a colorable claim to an 

increased role in the child’s life, one that the child’s parent may not 

welcome. Pennsylvania law therefore calls for in loco parentis issues to be 

determined early, and carefully. The Supreme Court has explained:

[W]henever there are contested issues relating to standing, the 

[Child Custody Law] gives parents the ability to bifurcate the 

proceedings by seeking dismissal for lack of standing, thereby 

requiring that any such preliminary questions be resolved before 

the complaint’s merits are reached.

The potential for such bifurcation serves an important 

screening function in terms of protecting parental rights. As 

suggested, it facilitates early dismissal of complaints, thereby 

relieving families of the burden of litigating their merits where a 

sufficient basis for standing is absent.
J-A15034-17

- 21 -

D.P. v. G.J.P., 146 A.3d 204, 213 (Pa. 2016). As part of this process, the 

Supreme Court has established “a stringent test for standing in third-party 

suits for visitation or partial custody due to the respect for the traditionally 

strong right of parents to raise their children as they see fit.” T.B., 786 A.2d 

at 916 (footnote omitted). The Court has emphasized, “[i]n loco parentis is 

a legal status and proof of essential facts is required to support a 

conclusion that such a relationship exists.” Id. (emphasis added). 

Thus, where there is a preliminary objection to standing in a custody 

case and the trial court holds an evidentiary hearing, the objection may be 

overruled only if the party claiming standing proves9that she has in loco 

parentis status or some alternative basis for standing. See Morgan v. 

Weiser, 923 A.2d 1183, 1187 (Pa. Super.), appeal denied, 932 A.2d 1289 

(Pa. 2007); Liebner v. Simcox, 834 A.2d 606, 609 (Pa. Super. 2003). 

Mere presentation of averments stating a colorable claim to standing is 

insufficient, for the question before the court is not, as C.G. argues, whether 

the plaintiff has pleaded facts that might entitle her to claim in loco parentis 

status, but rather whether she has proved that she has that status. 

____________________________________________

9

In Kellogg, 646 A.2d at 1249-50, we stated that standing must be proven 

by clear and convincing evidence. Accord McNamara v. Thomas, 741 

A.2d 778, 780 (Pa. Super. 1999); MacDonald v. Quaglia, 658 A.2d 1343, 

1344 (Pa. Super. 1995). The Supreme Court has not addressed that 

question, and we have not revisited it in our more recent case law. Because 

the trial court made no mention of a clear and convincing standard when it 

found that C.G. lacked standing and because C.G. has not raised the burden 

of proof as an issue in her appeal, we have no occasion to consider that 

question here.
J-A15034-17

- 22 -

Indeed, if the rule were otherwise, it would be difficult to understand why 

any hearing to establish standing would be needed at all, and a plaintiff 

could obtain the colorable claim to custody that standing confers merely by 

making a colorable claim to have standing. The requirement of standing 

would have little meaning if it could be obtained merely by claiming it, rather 

than proving it. 

Here, the trial court did not merely look to see if C.G. made allegations 

of standing that could withstand attack under the “clear and free from 

doubt” test. Instead, it held a hearing, made findings about disputed facts, 

and resolved C.G.’s claim to standing on the basis of its findings. That is 

precisely what it was required to do, and the trial court thus did not err. 

The foregoing discussion also disposes of C.G.’s argument that the trial 

court should not have deferred consideration of the merits of her custody 

claim until it decided the standing question. C.G. apparently contends that if 

the trial court had determined only whether she made a colorable claim to 

standing, the court could have proceeded to the merits of the custody case 

and then decided her standing and the merits of her custody claim together. 

See C.G.’s Brief at 17-18. But as the Supreme Court explained in D.P., 146 

A.3d at 213, because standing is a threshold issue, it should not normally be 

bypassed in that fashion. Although there may be some situations in which 

the facts relating to standing are so fluid that the trial court may be unable 

to make a definitive decision about it before hearing other issues, there has 
J-A15034-17

- 23 -

been no showing that this was such a case.10 The trial court did not abuse 

its discretion in resolving the standing question first. 

For all of these reasons, C.G.’s first claim of error is without merit.

The Finding That C.G. Was Not In Loco Parentis

In her second issue, C.G. argues that the trial court erred in 

concluding that she lacked in loco parentis status. She contends that the 

evidence proved she acted as a co-parent to the child and that the trial court 

abused its discretion by “either disregard[ing] or minimiz[ing] evidence” that 

she acted as a parent to the child and “minimiz[ing] the family structure the 

minor child resided in for a period of six years.” C.G.’s Brief at 26. Under 

T.B., 786 A.2d at 916, we “may not interfere with the trial court’s factual 

____________________________________________

10 C.G.’s reliance on Kellogg to support her argument is misplaced. 

Kellogg was an early standing case that addressed the issue in light of a 

decided lack of precedents. See 646 A.2d at 1249-50. At the time, Rule of 

Civil Procedure 1915.5 did not include a deadline for raising a standing 

objection, though it did say that objections to jurisdiction and venue should 

be made within 20 days after a complaint was filed; it also said that any 

“other pleading . . . shall not delay the hearing” on custody. The Court 

suggested that a standing objection also should be made within the first 20 

days, but that, in light of the “shall not delay” language of the rule, the 

custody hearing could go forward on the merits while the standing objection 

was pending. Id. at 1250. When Kellogg was decided, the Court did not 

have the benefit of Supreme Court decisions like D.P. and T.B. that

emphasize the need for early resolution of the standing question. The case 

also was decided before promulgation of the 2014 amendment to Rule 

1915.5 that explicitly requires a standing objection to be made within 20 

days and no longer makes a standing objection an “other pleading” that may 

not delay the custody hearing. In our most recent discussion of Kellogg, 

we stated, “While standing in custody cases may be fluid under some 

circumstances, it certainly cannot be asserted at any time” and should be 

asserted within 20 days. M.G. v. L.D., 155 A.3d 1083, 1087 n.5 (Pa. 

Super. 2017), appeal denied, Nos. 148 MAL 2017, 149 MAL 2017 (Pa., 

May 12, 2017).
J-A15034-17

- 24 -

conclusions unless they are unreasonable in view of the trial court’s factual 

findings and thus represent an abuse of discretion.”

The Supreme Court has explained that “the status of in loco parentis

embodies two ideas; first, the assumption of a parental status, and, second, 

the discharge of parental duties.” T.B., 786 A.2d at 916-17. “Parental 

duties” include “meeting the physical, emotional and social needs of the 

child.” 23 Pa.C.S. § 5322. “[T]he showing necessary to establish in loco 

parentis status must in fact be flexible and dependent upon the particular 

facts of the case.” J.A.L., 682 A.2d at 1320.

In T.B., the trial court found that a same-sex partner, T.B., had in loco 

parentis standing to the child at issue, A.M. This Court and the Supreme 

Court of Pennsylvania affirmed. In its opinion, the Supreme Court deferred 

to the trial court’s factual findings because the record supported them. T.B., 

786 A.2d at 919. Those findings included that the parties “engaged in an 

exclusive, intimate relationship,” “shared finances and expenses,” “jointly 

purchased a home,” “decided to have a child,” and “agreed that [the 

biological mother, L.R.M.] would be impregnated by a sperm donor and that

[T.B.] would choose the donor.” Id. at 914-15 (footnote omitted). T.B. 

“cared for [L.R.M.] during her pregnancy and attended childbirth classes 

with her[, and] was the designated co-parent for purposes of being present 

in the operating room during the birth.” Id. at 915. After the child was 

born, the parties lived together with the child but did not enter into a formal 

parenting agreement. Id. L.R.M. named T.B. as guardian of the child in her 
J-A15034-17

- 25 -

will. Id. L.R.M. and T.B. “shared day-to-day child rearing responsibilities, 

including taking [the child] for medical check-ups and other appointments.” 

Id. T.B. “was active, yet deferential to [L.R.M.] in making parental 

decisions.” Id. Accepting the trial court’s findings, the Court agreed that 

T.B. stood in loco parentis and had standing to seek partial custody. Id. at 

919-20. 

In J.A.L., this Court reversed a trial court ruling that a same-sex 

partner, J.A.L., lacked in loco parentis standing with respect to the child 

there at issue, G.H. J.A.L., 682 A.2d at 1316. We stated that “[t]he facts 

as found by the trial court clearly indicate that [the biological mother,] 

E.P.H. and J.A.L. lived together . . . as a nontraditional family, for many 

years before the birth of the child” and that the child “was to be a member 

of their nontraditional family.” Id. at 1321. Those facts included: “the 

parties agreed that E.P.H. would be artificially inseminated to attempt to 

conceive a child whom the parties would raise together”[;] the parties 

selected a sperm donor together; J.A.L. performed the inseminations; J.A.L. 

accompanied E.P.H. to doctor visits and childbirth classes; J.A.L., along with 

two other friends of E.P.H., was present at the birth of the child; and the 

child was given J.A.L.’s surname as a middle name. Id. at 1316. In 

addition, before the child’s birth, the parties consulted an attorney who 

drafted documents, including “a Nomination of Guardian in which E.P.H. 

named J.A.L. as the guardian of the child in the event of E.P.H.’s death or 

disability”; “an Authorization for Consent to Medical Treatment of Minor, 
J-A15034-17

- 26 -

permitting J.A.L. to consent to medical or dental treatment of the child[;]” “a 

Last Will and Testament for each party, providing for the other party and the 

child[,]” and, in E.P.H.’s will, a clause appointing J.A.L. as the guardian of 

the child; and a co-parenting agreement. Id. at 1316-17. The parties 

executed all of these documents except for the co-parenting agreement, 

which J.A.L. refused to execute after counsel advised the parties that the 

agreement was not enforceable in Pennsylvania. Id. at 1317. After the 

child’s birth, the parties lived together with the child, and J.A.L. “assisted 

with all aspects of the care of the baby.” Id. After the parties separated, 

J.A.L. visited the child frequently and regularly. Id. at 1317, 1322. 

Here, the trial court heard extensive conflicting testimony regarding 

the role that C.G. played in the child’s life. After hearing this evidence, the 

court made several findings that led it to conclude that C.G. did not stand in 

loco parentis to J.W.H. Among these were that: the parties “took no steps 

to formalize a co-parenting arrangement” and neither party suggested 

adoption after adoption by members of a same-sex couple became a legal 

option in Florida in 2010; C.G. “never agreed to have a child, but merely 

tolerated the idea of [J.H.] having a child”; although C.G. initially carried the 

child on her medical and dental insurance, she removed him from her 

policies after the parties separated; C.G. was not listed as a parent on school 

or medical documents and was not intended to be the child’s guardian if 

something happened to J.H.; C.G. acted as a babysitter (according to J.H., 

she sometimes refused to care for the child), and some witnesses 
J-A15034-17

- 27 -

characterized her interactions with the child “as playing, not parenting”; J.H. 

did not consult C.G. regarding educational or medical decisions, including 

preschool selection, doctor selection or appointments, child care, and the 

child’s activities; C.G. did not “assume the role of a decision-maker for the 

child” or make contributions amounting to that of a parent; while C.G. 

contributed financially to the household, she did not assume financial 

responsibility for the child; C.G.’s extended family members have not 

reached out to the child since the parties’ separation; “the evidence 

presented does not establish a parent/child relationship exists between the 

child and [C.G.],” and “the child does not cry for, request to see, or 

otherwise reach out for [C.G.]”; and “the parties’ conduct post-separation is 

consistent with the finding that [C.G.] was not a parent to the child.” Trial 

Ct. Op. at 5-10. The trial court resolved issues of credibility in favor of J.H., 

and the record supports its findings.11 

The court’s holding rests on the unique facts of this case, and there 

are significant distinctions between this case and T.B. and J.A.L., the main 

decisions on which C.G. relies. For example, in T.B. and J.A.L., the parties 

decided together to have a child; here, the court credited J.H.’s testimony 

that C.G. “never agreed to have a child, but merely tolerated the idea of 

____________________________________________

11 The trial court acknowledged two handwritten notes from J.H. to C.G. and 

C.G.’s life insurance policy, on which she identified the child as her son. The 

court weighed this evidence against the other evidence in the case and 

concluded that it did not establish that C.G. assumed a role of mother to 

J.W.H. Trial Ct. Op. at 6. The court did not abuse its discretion in making 

that determination.
J-A15034-17

- 28 -

[J.H] having a child.” Trial Ct. Op. at 6. Moreover, unlike the parties 

seeking custody in T.B. and J.A.L., C.G. did not participate in educational or 

medical decisions regarding the child, was not intended to be the child’s 

guardian if something happened to J.H., and acted more like a babysitter 

than a parent. Id. at 7-8. Further, there were no formal documents 

indicating a co-parenting arrangement, the child did not bear C.G.’s 

surname, and C.G. did not visit the child frequently and regularly after the 

parties separated. Id. at 5-6, 9-10. 

The trial court’s opinion reflects a careful, thorough, and proper 

consideration of the evidence presented by both parties, and did not, as 

C.G. alleges, simply disregard the evidence in her favor. Faced with 

conflicting testimony regarding C.G.’s role in the child’s life, the trial court 

acted well within its discretion in resolving those conflicts in favor of J.H. 

Because the record supports the trial court’s findings and the trial court’s 

conclusions are reasonable, we affirm its holding that C.G. lacked in loco 

parentis status. See T.B., 786 A.2d at 916. 

Consideration of Post-Separation Conduct

In her remaining issue, C.G. contends that the trial court abused its 

discretion by giving too much weight to the parties’ post-separation conduct 

in determining the issue of standing. C.G. relies on the principle that “once 

standing to sue for custody has been obtained, it does not ‘vanish’ or 

somehow ‘atrophy.’” C.G.’s Brief at 30. 
J-A15034-17

- 29 -

In J.A.L., we considered, among other factors, the post-separation 

conduct of the parties when addressing the issue of standing. See J.A.L., 

682 A.2d at 1322. Specifically, we noted that J.A.L.’s early contact with the 

child “was reinforced by visits after the parties’ separation, visits which 

occurred with a frequency and regularity similar to that of post-separation 

visits by many noncustodial natural parents and thus must be considered 

adequate to maintain any bond previously created.” Id. We held that the 

evidence, including the evidence of post-separation conduct, “clearly 

established that J.A.L. has shown a constant, sincere interest in the child, 

and that the child recognizes J.A.L. as a significant person in her life.” Id.

Here, as in J.A.L., it was proper for the trial court to consider the parties’ 

post-separation conduct, along with evidence regarding their pre-separation 

conduct, in determining whether C.G. had a similar “constant, sincere 

interest” in J.W.H. and therefore stood in loco parentis to the child. 

In support of her argument, C.G. relies on Grom v. Burgoon, 672 

A.2d 823 (Pa. Super. 1996), but we find that decision inapposite. In Grom, 

we held that the trial court erred in finding that a grandmother lost standing 

because she did not file a petition for visitation rights until three years after 

the child moved out of her home. 672 A.2d at 825. We relied on the 

language of the statute conferring standing on grandparents, which 

contained no time limit for seeking visitation. Id. Grom has no bearing on 
J-A15034-17

- 30 -

this case because the trial court did not hold that C.G. lacked standing 

because she did not seek custody of the child earlier.12 

This is not a case in which the trial court found that C.G. lost standing 

that she once had. Rather, this is a case in which the trial court properly 

viewed all of the relevant evidence before it, including that regarding the 

parties’ pre- and post-separation conduct, to determine whether C.G. ever 

stood in loco parentis to J.W.H. See J.A.L., 682 A.2d at 1322. Upon doing 

so, the trial court found that C.G. did not have standing. We defer to the 

trial court to assess the weight of the evidence. See Reilly, 280 A.2d at 

640. We conclude that the trial court did not abuse its discretion in doing so 

in this case.

____________________________________________

12 We also find our holding regarding post-separation conduct in Liebner, 

834 A.2d at 611, inapposite. We held in that case that it was error to 

consider the parties’ post-separation conduct to conclude that a party that

had gained in loco parentis status could then lose it. Here, however, the 

trial court did not hold that C.G. had in loco parentis status and then lost it 

after she separated from J.H.; rather, the court found that the parties’ postseparation conduct was “consistent with the finding that [C.G.] was not a 

parent to the child” and thus never had in loco parentis status. Trial Ct. Op. 

at 10.
J-A15034-17

- 31 -

For the foregoing reasons, we affirm the trial court’s order.

Judge Moulton joins the opinion.

Judge Musmanno files a concurring opinion. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/11/2017