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November 7, 2016
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By Paul Helvy

A major Pennsylvania Supreme Court decision has tipped the scales against grandparents who attempt to seek custody of their grandchildren during a marital separation.

The decision, handed down, ironically, just a day before National Grandparents Day on Sept. 10, promises to have a far-reaching impact on family law cases, at a time when more grandparents than ever are involved in raising their children’s children.

Nationwide, nearly 3 million grandparents are raising grandchildren – a 7 percent increase from 2009. Experts say the upward trend is likely to continue as the nation responds to a full-scale opioid epidemic, military deployments, and an increasing number of women facing incarceration. Divorce rates, mental health issues, and double-income families also factor heavily into the trend.

In the recently decided case, D.P. and B.P. v. G.J.P and A.P., the Pennsylvania Supreme Court held that a statutory provision, Section 5325, which gives grandparents standing to seek custody, based solely on the separation of the parents, was unconstitutional. They reasoned that this law improperly presumed the parents’ lack of fitness due solely to their separation.

The circumstances

The case was a direct appeal from a Common Pleas Court order.  In the case, the parents separated after six years of marriage but never initiated formal divorce or custody proceedings. The parents were able to agree to informal custody terms on their own. Both also agreed that they did not want their three children to have contact  with their paternal grandparents.

The paternal grandparents sued for partial custody but lost.

The court first noted that grandparents, barring special circumstances, do not typically have “standing”, which is the right to initiate a law suit, regarding the custody of their grandchildren.  The court then ruled that, contrary to existing statutory language,  grandparents do not have standing in custody actions simply because two parents are separated and have been for more than six months.

This ruling is consistent with case law in the Commonwealth, including a case involving the obligation of parents to pay for college for their children.

In 1992, in Blue v. Blue, a parent challenged the authority of the courts to order parents to contribute to their children’s college education.  The litigant noted the inherent unfairness in the fact that, if you are not separated, you can’t be ordered to pay for college, but if you are separated, you can. This double standard was struck down in court.

Similar logic applied to the grandparent custody case.  A parent cannot be presumed unfit and in need of custody transfer just because they are separated, the court concluded.

Potential fallout

In the wake of the ruling, the next steps are unclear.  Could this case trigger a re-examination of current grandparent custody cases?   Could the grandparent custody statute face further erosion, and will the General Assembly act to change the law?

Subsection 2 of Section 5325 is the key language in question.  That provision holds, “where parents of a child have been separated for a period of at least 6 months, or have commenced a proceeding to dissolve their marriage….”  grandparents have standing to seek partial physical custody of their grandchildren.

This subsection contains two subsets: the “separated” part and the “commenced a proceeding to dissolve a marriage” part.  The ruling only invalidated the first half of subsection 2 because that was the only issue that was before the court (due to the fact that the parents had never filed for divorce from one another).  Two judges  dissented from the majority opinion stating  that the court should throw out the entire section, not just the first half.

Justices Wecht and Baer said the court should not treat divorced people differently from non-divorced people.

The essence of the Supreme Court’s  opinion is that the law presumes parents are fit and are making decisions in their children’s best interests, therefore it is not appropriate for the state to intervene in parental decisions without cause. To do so would violate the Constitution’s due process and equal protection clauses.

Although the state has an interest in making sure children are safe, the courts must balance state rights and an individual’s rights over their children.

Now, with this September ruling, the scale has tipped such that simply being separated from the other parent is not sufficient cause to take fundamental parental rights away from presumptively fit parents.

In light of this ruling, the Pennsylvania Bar Association’s Family Law section may consider proposed legislation to amend the statute, but it is unknown whether the General Assembly will act on it, or whether another case may address the second half of subsection 2.

With the holiday season approaching, parents and grandparents should follow the evolving nature of the state’s grandparent visitation and custody laws closely.  When so many competing parties want their children and grandchildren “home for the holidays,” custody and visitation rights remain a thorny and often heart-breaking dilemma for both families and the courts, with the courts continuing to make adjustments to the rules governing  grandparents’ rights.

Paul Helvy chairs the Family Law Practice Group at McNees Wallace & Nurick LLC and is the immediate past chair of the Pennsylvania Bar Association, Family Law Section. He can be reached at 717-237-5343 or phelvy@mcneeslaw.com