Grandparents' Rights Take a Hit

With the decision on D.P. and B.P. v. G.J.P and A.P., (25 WAP 2015) on September 9, 2016, the Pennsylvania Supreme Court struck a blow to the previously broad rights of certain grandparents in Pennsylvania. 

In 2010, the “new” custody statute was enacted.  Section 5325 of that law, provided that:

 In addition to situations set forth in section 5324 (relating to standing for any form of physical or legal custody), grandparents and great-grandparents may file an action under this chapter for partial physical custody or supervised physical custody in the following situations:

(1)    Where the parent of the child is deceased, a parent or grandparent of the deceased parent may file an action under this section;

(2)    Where the parents of the child have been separated for a period of at least six months or have commenced and continued a proceeding to dissolve their marriage; or

(3)    When the child has, for a period of at least 12 consecutive months, resided with the grandparent or great-grandparent, excluding brief temporary absences of the child from the home, and is removed from the home by the parents, an action must be filed within six months after the removal of the child from the home.

In the D.P. case, the bolded language in sub-paragraph 2 above, which had previously granted standing to grandparents when the parents were separated for more than 6 months, has been stricken by the Supreme Court as unconstitutional.  The D.P. case arose out of a situation where the parents, separated for more than 6 months, had agreed that paternal grandparents (D.P. and B.P) should not be involved in the lives of their three children.  The parents had never sought court involvement and had always been able to work out all parenting issues and custody between themselves.  Grandparents, however, relying on paragraph 2 of section 5325, filed a custody action in Westmoreland County seeking partial custody of the three children.  There is no allegation of any neglect, abuse or any wrongdoing by either parent in this matter.  Rather, grandparents relied solely on the fact that the parents were separated for their contention that they had a right to sue for custody.

The trial court held that the six-month separation language was unconstitutional as it violated the parents’ right to raise their children as they see fit.  The trial court, therefore, threw out the custody lawsuit.  The grandparents appealed that decision and the Pennsylvania Supreme Court reviewed the matter.  In its analysis, the Supreme Court determined that the six-month separation language must be stricken as “it violates the fundamental rights of parents safeguarded by the Due Process Clause”.   The Court found that the government’s interest in safeguarding children from harm was not furthered by the language of this statute.  Specifically, the Court stated that “the fact of a parental separation for six months or more does not render the state’s parens patriate interest sufficiently pressing to justify potentially disturbing the decision of presumptively fit parents concerning the individuals with whom their children should associate.”

The Supreme Court specified that only the first part of paragraph 2 is stricken, though it seems the Court is inviting a similar challenge to the second part of paragraph 2.  Specifically, in footnote 17, the Court noted that it is certainly possible that divorced parents (or those who have filed for divorce) have similar co-parenting arrangements and agreements.  The Court indicates that because that specific factual situation is not before it, the Court cannot make a decision on the second half of paragraph 2.

This decision, while clearly eliminating the right of grandparents to seek partial custody when the parents are separated for more than 6 months, does not eliminate the right if the circumstance of the rest of section 5325 are met.  However, it does create some new issues – now a grandparent has standing to sue if the parents have filed for divorce but not if the parents have simply separated and not filed a divorce action or if the parents were never married.  So, as a result of this case, it is only the status of any divorce litigation which triggers standing under paragraph 2.  It seems inevitable that the remaining language of paragraph 2 will be challenged for this reason.