Child Custody, Visitation & Relocation


In the family law, grandparent child custody case of D.P. vs. G.J.P. PICS Case No. 16-1161 (Pa. Sept. 9, 2016). Justice Thomas G. Saylor, writing on behalf of Pennsylvania Supreme Court, ruled a statutory provision conferring upon grandparents standing to seek custody, based solely on the separation of the parents, was unconstitutional because it is improperly presumed parents’ lack of fitness due to solely to their separation. D.P. and B.P. appealed from the order of the trial court dismissing their custody complaint on the basis that a statutory provision conferring standing on grandparents based solely on parents’ separation of longer than six months was unconstitutional. Appellees G.J.P. and A.P. were parents to three minor children. Appellees separated, although they did not initiate divorce proceedings, and because they were in agreement as to custody matters had never sought court involvement.

Appellees mutually agreed that their children should no longer have any contact with appellants. Appellants filed an action seeking partial physical custody of the children. Although they acknowledged that appellees were not unfit parents and that the children were not in any danger, appellants argued that they had standing pursuant to paragraph 2 of 5325 of the Domestic Relations Code, which conferred upon grandparents standing to seek custody orders where the parents had been separated for period of at least six months or had commenced divorce proceedings. However, the trial court dismissed appellants’ complaint, agreeing with appellees that 5325(2) was unconstitutional because it improperly presumed that parents were unfit due solely to their separation.

On appeal, appellants acknowledged apellees’ fundamental right to direct the care and control of their children but contended that 5325 was narrowly drawn to advance the interest of maintaining relationships between grandparents and grandchildren. However, the court agreed with the reasoning of the trial court, finding that the 5325(2) failed the strict scrutiny test applied due to parents’ fundamental right to control the care of their children. Although the court acknowledged the compelling interest of the state in safeguarding children and ensuring that children are not deprived of their relationships with grandparents, the court ruled that such an interest was not advanced by 5325(2), particularly where presumptively fit parents, though separated, had mutually agreed that their children should cease associating with certain individuals.  The court ruled that the state could not exercise its interest in fostering grandparent relationships over the objection of presumptively fit parents based solely on the fact that such parents had been separated at least six months.

Finally the court held that the second half of paragraph 2 of 5325, along with paragraphs 1 and 3, could be severed from the first half that the court had determined to be unconstitutional and could continue in full force and effect. The court rejected the dissent’s suggestion to address the constitutionality of the second half of 5325(2) finding it not relevant to the resolution of the case.

Accordingly, the court severed the first half of 5325(2) and affirmed the ruling of the trial court finding that provision to be unconstitutional. Justice Baer concurred with the ruling of the court but dissented to the extent that it merely struck down the first half of 5325(2). Instead, Justice Baer argued that paragraph 2 should have been struck down in its entirety.

Reference: Digest of Recent Opinions, Pennsylvania Law Weekly, 39 PLW 919 (Sept. 27, 2016)

Filed Under: Grandparents Standing to seek Child Custody

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