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Case arguing for the rights of a non-biological parent to receive primary custody of a child if biological parent is unfit


Patricia Jones and Ellen Boring were partners for 14 years. They planned a family together and both became caregivers to their twins. After the couple split up in 2001, a trial court found that Jones had parental rights to the children and awarded joint custody to both mothers, with primary physical custody to Boring, the biological parent. Later, Jones filed for primary physical custody, citing Boring’s history of contempt in observing the visitation schedule set by the court and her attempts to unilaterally remove the children from Pennsylvania. The court found “convincing reasons” that being in Jones’s custody would be in the best interest of the children and awarded her primary physical custody. Boring appealed, contending that as the children’s biological mother and former primary custodian, she could not have her children removed from her custody unless a court found her unfit, a very high standard. The Superior Court of Pennsylvania rejected Boring’s argument and upheld the lower court’s decision to grant primary physical custody to Jones. Boring filed a petition seeking appeal before the supreme court of Pennsylvania, which denied the petition.


Pennsylvania courts have supported and now have affirmed that gay and lesbian nonbiological parents should be judged on the same standards used in cases involving nonbiological heterosexual parents.

Lambda Legal’s Impact

In a critical victory, this case establishes that biological ties do not trump the best interests of children. The lower court’s ruling also makes clear that once a person has been granted parental rights, he or she does not have to prove that the biological parent is unfit to obtain custody. This means nonbiological parents who separate from their partner in Pennsylvania have strong precedent for equal treatment.


  • February 2004 Ellen Boring, the children’s biological mother, petitions the court to modify an existing custody order under which she and Patricia Jones, Boring’s former partner, share custody of their children, to allow her to relocate to Indiana.
  • January 2005: Pennsylvania Court of Common Pleas, looking to the best interests of the children, grants Jones primary physical custody of her children, because she would provide a better home than her ex-partner (the children’s biological parent).
  • September 2005 Victory! Superior Court of Pennsylvania upholds order granting Jones primary physical custody of her children.
  • November 2006 Victory! Supreme Court of Pennsylvania denies Boring’s petition for appeal. Accordingly, the lower court ruling granting Jones custody of her children stands.