Third Parties Who Obtain Custody of a Child May be Liable for Child Support

The Pennsylvania Child Custody Act permits third parties to sue for and obtain custody of a child in certain situations. In recent years we have seen more and more third parties suing for child custody. However, if the third party obtains an Order of Court awarding him custody of a child, is that third party liable to pay child support to the other parent or parents of the child? In Caldwell v. Jaurigue, 2022 Pa. Super. Unpub. LEXIS 2356, the Pennsylvania Superior held that a party who stood in loco parentis to a child could be liable to pay child support for that child to the parent or parents of the child. This case, however, is currently under review by the Supreme Court of Pennsylvania.

In this case, Mr. Jaurigue, the live-in paramour of the Mother, sued the Father for partial physical custody of the Child of Mother and Father after Mother had passed away. Mother and Father had never married. Mother had primary physical custody of the Child and Father had partial physical custody of the Child pursuant to a Court Order. After Mother’s death, the Child went to live with Father and Father permitted Mr. Jaurigue to visit with the Child only when Father agreed. Mr. Jaurigue sued Father for partial custody of the Child. First, the Court decided if Mr. Jaurigue had “standing” to sue for custody. The Court determined that Mr. Jaurigue had standing because he was in loco parentis to the Child; the Court found that Mr. Jaurigue had resided with Mother and the Child for six years before Mother’s death and during that time he performed parental duties for the Child and did so with the Mother’s consent. Thus, Mr. Jaurigue was in loco parentis. The Court then awarded Mr. Jaurigue partial physical custody.

After the Court awarded Mr. Jaurigue partial physical custody of the Child, the Father sued him for child support. The Pennsylvania Domestic Relations Act – a statutory law passed by the Pennsylvania General Assembly and signed into law by the Governor – imposes a duty upon “parents” to financially support their children. However, the Act is silent regarding third parties. Pennsylvania courts have extended that duty to third parties in certain circumstances. The Father is relying upon a prior Pennsylvania Supreme Court holding in a case involving a former stepparent, “when a stepparent takes affirmative legal steps to assume the same parental rights as a biological parent, the stepparent likewise assumes parental obligations, such as the payment of child support.” A.S. v. I.S., 634 Pa. 629, 130 A.3d 763, at 765 (Pa. 2015) as cited by Caldwell v. Jaurigue, 2022 Pa. Super. Unpub. LEXIS 2356, *10.

Although Mr. Jaurigue is not the Child’s former stepparent because he was never married to the Child’s mother, that distinction did not affect the Superior Court. The Superior Court held that Mr. Jaurigue is obligated to pay child support because he requested and was awarded substantial physical custody of the Child. Mr. Jaurigue requested and was awarded much more than simply custodial time; he requested and was awarded the right to have Father notify and allow him to participate in the Child’s extracurricular activities, Father must list Mr. Jaurigue as a “family member” for the same, Mr. Jaurigue has the right to be notified of and participate in the Child’s counseling and tutoring sessions, and Father must notify Mr. Jaurigue of his intent to relocate with the Child, and Mr. Jaurigue has the right to object. The Superior Court agreed with Father that “Jaurigue's actions represent a proactive pursuit to assume parental duties of Child that would otherwise belong to Father.” Id. at *13. The Court stated, “There can be no question that Jaurigue has significantly intruded upon Father's full custody rights to Child.” Id. at *13.

In conclusion, the Superior Court held that Mr. Jaurigue is obligated to pay child support to the Father of the Child because “Jaurigue's actions show he is dedicated to continuing to be a stable fixture in Child's life. He filed for custody and obtained substantial parental rights to Child in order to ensure he is able to be that stable fixture for Child and to be intricately involved in her life.” Id. at *17.

So, if you are a third party and sue for and obtain substantial physical custody, you very well may have obligated yourself to pay child support for that child or children. I doubt the Supreme Court of Pennsylvania will reverse this decision, but we shall see. If you have questions about child support or child custody please do not hesitate to contact Scaringi Law at 717-657-7770.