A unanimous panel of the Pennsylvania Superior Court, an intermediate appellate court, ruled on April 30 in Jacob v. Shultz-Jacob, 2007 Westlaw 1240885, 2007 PA Super 118, that a child may have three parents, in this case a former lesbian couple and the man who donated sperm so they could have some children. The unusual ruling is not based on Pennsylvania family law statutes, but instead on judge-made doctrine of "equitable estoppel," which has occasionally been used to in the past to enforce child support obligations against persons who are not legal parents.
According to the opinion for the court by Senior Judge John T. Kelly, Jr., Jodilynn Jacob and Jennifer Schultz lived together in York County, Pennsylvania, for about six years beginning in 1996. During that time, they had a commitment ceremony in Pittsburgh, and formed a civil union in Vermont, Jennifer taking the last name Schultz-Jacob. Jodilynn had two young nephews whom she had adopted, and she was the birth mother of two other children, conceived through donor insemination. The sperm donor was Carl Frampton, a long-time friend of Jennifer.
In February 2006, several months after the women had decided that their partnership was at an end, Jodilynn relocated with the four children to Dauphin County, and soon thereafter, Jennifer filed a lawsuit, naming Jodilynn and Carl as defendants, in York County Court, seeking legal and physical custody of the four children. The court made a temporary award of primary custody to Jodilynn while the case was pending, with partial custody (visitation) for Jennifer and Carl (for the two children who were his biological offspring).
Shortly after this, however, some trouble arose with one of the nephews, some unresolved delinquency charges that he had committed an "indecent assault" against one of the younger children, and he was sent to live with Jennifer, with Jodilynn providing money for his expenses. The Dauphin County Court directed that "at no point in time are the parties to exercise custody of [the nephew] and [the younger child] at the same time." Then, after a hearing last August where the court received expert testimony from a child psychologist, the court gave Jennifer primary custody of the one nephew who was living with her, and partial custody (visitation rights) with the other three children; Jodilynn got primary custody of the three children and partial custody (visitation) with the one nephew, and Carl was awarded partial custody (visitation) of one weekend a month with his two children. Jennifer appealed this ruling, claiming that according to the expert’s opinion, she should have primary custody of the children.
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