In March 2012 Joe Caldwell and Jacqui Spencer have a child. Seventeen months later Jacqui and the toddler move in with Philip Jaurigue. For the next several years the child lives primarily with Jacqui and Phil. Then Jacqui dies in 2019. The child at this time begins to live primarily with her father (Caldwell). But six months later, Jaurigue files a custody action seeking a regular schedule of contact and professing that during the 6+ years the child lived in the same house with him he acquired the status of a parent (in loco parentis is the Latin legal term for this). The Bucks County Court heard this and in March 2022 the court awarded legal custody to the natural father but a schedule of partial custody to Mr. Jaurigue.
We could solve Rubik’s cube in less time than it would take to set forth the partial custody schedule. It’s just easier to quote the majority opinion of Justice Kevin Dougherty who characterized it as “fairly extensive.” Suffice to say that there was to be lots of contact and consultation even though legal custody was in Caldwell alone. Caldwell appealed but the Superior Court affirmed the ruling.
Along the way, Caldwell filed an action for child support. Jaurigue objected citing a 2015 case A.S. v. I.S. 130 A.3d 763 (Pa. Supreme) which contained the general comment that partial custody rights arising from in loco parentis status do not establish a support obligation. Meanwhile, the Supreme Court in A.S. did find a duty to pay guideline support.
Thus the table is set. Just how much custody by a third party imposes on that party a duty to contribute? The past decisions noted that in many instances the step parent or other third party (as here) acts gratuitously and in an effort to be of help. But in A.S. support was imposed because the non-parent actually went so far as to try to block the natural parent’s relocation to California and secured shared legal and physical custody.
In this case the Superior Court upheld a support award from Jaurigue to Caldwell because he was not merely seeking contact but a regular schedule and “rights” to participate in the now ten year old’s life. The Court distinguished this from another Superior Court decision S.R.G. v. D.D.G. 224 A.3d 368 (2019) where grandparents were sharing custody of a grandchild.
The Supreme Court opinion of May 31 is well worth the read. Jaurigue starts his argument with the statute stating only parents are liable for child support. 23 Pa.C.S. 4321(2). He then contends that his custody filing was granted because it was in the child’s best interest for him to have that engagement with her and that the Superior Court ruling imposing support on anyone asking for custodial access risks being hit with a support obligation that would discourage contact which is helpful to the child’s development. Com. ex. rel. McNutt v. McNutt 496 A.2d 816 (Pa. Super. 1985); Drawbaugh v. Drawbaugh 647 A.2d 240 (Pa. Super. 1994). He also conceded that the A.S. case may have warranted a different ruling because the non-parent was taking legal action that would affect the natural parent (embarrassing relocation efforts). But a broad support mandate would actually discourage non-parents from becoming involved in what are often delicate family situations like the addiction or death of a parent.
Caldwell contended that when he is drawn into custody litigation and custody schedules are imposed on his management of his child a duty of support is appropriate. Both sides appear to have acknowledged that even though Jacqui Spencer never married either man, from the perspective of the child both men were father figures to this child. He notes that the custody order confers upon Jaurigue rights to attend school conferences, review medical information and participate in therapy. Those seeking significant participation in the parenting process should not be permitted to then deny any financial responsibility for that participation.
The majority opinion seeks a bright line test and finds one in the definitions of the word “parent” in both the law and English language dictionaries. But then it focuses on the fact that Jaurigue has no LEGAL custodial rights. But then the opinion veers into the world on support by estoppel where a parent allows the child to believe he/she is a parent when in fact there is no blood or adoptive tie.
We have a solid and reasoned majority opinion here but unfortunately, there is not much clarity. The Supreme Court does not expressly repudiate its decision in A.S. v. I.S. In that case a step parent filed for and secured an order for shared legal and physical custody. In a sense that made the child support decision somewhat easy as he was an “equal” parent. But the implication of this decision is that so long as an intervenor seeks anything less than shared “legal custody” there is no obligation to support the child. Note also the absence of reciprocity. The step-parent has no obligation of support but should custody someday swing his way (the step parent gets primary) he will be able to secure and order for support.
As these cases illustrate, there can be plenty of room for mischief. Jaurigue is “on the scene” for everything from medical appointments to school conferences, even therapy. While there suppose he opines that there should be braces, tutoring or uninsured psychological therapy. Technically he has no “say” in these matters because he has no duty to contribute. But, oh the trouble he can make while not contributing. The child falls in love with horses. Jaurigue can take his money and buy her a horse. Then he can tell this lovely ten year old “You could live more with me and enjoy your horse.”
Also, not to be gainsaid is the cost of defending the step parent litigation. The dentist recommends braces. Caldwell says he cannot afford. Jaurigue says “Yes you can and orthodontic care is in the support statute. I may ask the court to intervene as a matter of the child’s best interests.”
The better answer may be to grant trial courts a little more discretion here. The majority opinion rightly notes that a step or grandparent trying to help should not be saddled with a multi year support obligation. But if the Jaurigues of the world want braces, horses or specialized courses, perhaps the orders addressing these subjects should require “contributions” to those activities even while avoiding the drudgery of regular support payments. The problem we have in the Caldwell v. Jaurigue matter is that just as A.S. did in 2012, Jaurigue filed an action asserting custody rights to a child based on in loco parentis. A.S. certainly got more rights than Jaurigue did but Jaurigue got privileges to be involved in medical, educational and therapeutic aspects of the child’s life. The trouble here is there is no bright line when support attaches and a bright line does not “jump out” in the context of this otherwise well-reasoned case. That suggests we might have to give the trial courts some more discretion including discretion to award some support where a step-parent decides they enjoy taking parenting issues to court.
This topic is important. Children are growing up in many households today. That is sometimes the product of divorce, relationship break-up and/or addiction. It is one thing to give the “parental figure” (step parent, grandparent or long time live in) some access to help a child navigate the transition. But it you want a seat at the custodial table for decisions such a relocation, therapy and input into health and welfare decisions, a court should have the right to include some level of support as in the child’s best interests.
The majority opinion is here: https://law.justia.com/cases/pennsylvania/supreme-court/2024/30-map-2023.html
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