Pennsylvania appeals court sets legal precedent in custody case

Last December, a trial was held to determine the custody of two children. The maternal grandparents had filed a petition asking that either they or the mother be awarded primary custody, which led to the father and mother each filing for primary physical custody. At the trial, it became known that the parents had previously engaged in polyamorous relationships. Despite the fact that the children's' therapist testified that they were not harmed by this, the judge awarded primary physical custody and sole legal custody to the grandparents.

The mother could not afford filing an appeal, but the father could, and did. Just nine months later, he has won, and the court order was overturned -- awarding him full custody of the children.

Nancy Polikoff, a law professor who has worked gay and lesbian family law issues for 35 years, wrote a timeline of the case and how the ruling came to be overturned. It had a lot to do with the appeals court's view that the judge unfairly penalized the father for his past polyamorous relationships.

The appeals court said the judge interjected "artificial morality concerns" into its determination, something not permitted by the list of factors in the custody statute.  Although the trial judge claimed otherwise, the appeals court found that the judge's "general disfavor of polyamory" played a role in the decision.  At the time of the trial the father was no longer in a polyamorous relationship.  They appeals court noted that "while ultimately unsuccessful, his former experimentation with that lifestyle did not harm the children and does not currently affect the children negatively."  The appeals court called polyamory "a nontraditional sexual practice," but considered it analogous to other cases in which a parent's previous sexual conduct was found irrelevant absent evidence of harm to the child.

Sex figured into this case in another way.  The trial court considered the father's wife's friendship with a professional dominatrix and her blog post in which she described herself as a "closet poly."  The appeals court found that "the trial court's preoccupation with these morality issues is improper, particularly where, as here, there is a dearth of evidence to suggest that the sexual practices affected the children at all."

The good news about this is that the court's decision will be entered into Pennsylvania case law, making it an official legal precedent in the state.

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