Custody and Child Support for Non-Biological Child

Sherri Shepherd of The View and her former spouse, Lamar Sally, broke up in May of 2014 and have been fighting over custody and child support issues since the birth of their child on August 5, 2014. The child was conceived after a long and very public search for a surrogate and donor egg, but the couple separated before the child was born.

The parties' custody battle was unusual in that Shepherd was claiming not to be the mother of the child as she shares no biological or genetic connection with the child and there was no legal adoption. However, on April 21, 2015, the court held that Shepherd was the legal mother of the child and she was required to pay $4,100.00 per month (which will increase to $4,600 once the child reaches age 13).

Shepherd brought her matter to the Pennsylvania Court of Appeals on October 5, 2015, where the lower court's decision was upheld. Shepherd then petitioned to the Superior Court (the highest court in the state) on December 23, 2015, asking the court to consider the following issue:

“whether the lower court usurped the sole and exclusive authority of the [Pennsylvania] legislature to make law by declaring valid and enforceable a provision in a surrogacy contract that created parentage in a non-biological and non-genetic parent.”

It has been suggested that Shepherd's motivation throughout the litigation has been to avoid having to pay child support. In an effort to end her support obligations, Shepherd is still arguing that she cannot be the legal mother because she argues that a person cannot become a mother by way of a contract under Pennsylvania law.

In Pennsylvania, like in Canada, a person can become a "parent" for the purposes of determining child support obligations without a biological or genetic connection and without formal adoption. In Ontario, Canada, the Family Law Act (FLA) governs such obligations.

Section 31(1) of the FLA creates an obligation for every parent to provide child support for his or her unmarried minor child to the extent of his or her capability. This means that everyone who falls within the definition of "parent" would be subject to the child support obligations created by section 31(1).

Section 1(1) of the FLA defines a "parent" as follows:

"parent" includes a person who has demonstrated a settled intention to treat a child as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody;

If Ms. Shepherd's case were heard in Ontario, Mr. Sally would have a strong argument that Shepherd demonstrated the necessary settled intent to treat the child as her own child throughout all dealings with the surrogate. During the period of time between when the child was conceived and when the parties separated, Shepherd participated in decision-making regarding the child's health and well being. This is a significant hallmark of a settled intention to treat a child as family. One might even argue that the necessary settled intention manifested itself even before the child existed as the child would cease to exist without the careful planning and efforts of Ms. Shepherd in seeking out the surrogate and finding an egg donor. Further, the contractual relationship between Shepherd and the surrogate shows an indisputable intention of Ms. Shepherd to be a parent to the child.