Child Custody, Visitation & Relocation


Automatic child custody standing statute for grandparents of a child with deceased parent did not violate due process or equal protection rights of surviving parent where the statute served compelling state interest of protecting and promoting child emotional well-being by ensuring continued longstanding and beneficial grandparent-child relationships.

Father C.H. appealed from the trial court’s order granting appellee maternal grandparents’ petition for modification of custody, which awarded maternal grandparents partial physical custody of child H.H. every other Saturday and additional time on holidays and during the summer months. Father and child’s biological mother were married when child was born in 2009. Child saw maternal grandparents on a weekly basis and often spent nights at their home.

After mother passed away, maternal grandparents filed a complaint for custody which culminated in a stipulated order awarding maternal grandparent’s partial physical custody three days per month during the summer. Several years later, maternal grandparents filed the present petition for modification of custody alleging father was not complying with the stipulated order. Following trial, the trial court granted the petition.

On appeal, father argued that statutory automatic standing for grandparents violated a parent’s due process rights when those grandparents were offered ongoing contact. Father further argued that granting maternal grandparents standing created unconstitutional disparate treatment for widowed parents by subjecting them to court review of their parenting decisions that two-parent families were not subject to. Father also argued that application of anti-relocation provisions violated his fundamental rights as a parent to make decisions regarding his child’s care.

The court rejected father’s arguments and affirmed the order of the trial court. The court acknowledged that the grandparent visitation statute infringed upon the fundamental rights of parents to make decisions about their children and therefore was subject to strict scrutiny. The court identified the compelling state interest in protecting the emotional welfare and well-being of children. The court ruled that ensuring that children of deceased parents were not deprived of beneficial relationships with their grandparents was narrowly tailored to serve the state interest.

The court further ruled that, in some instances, a court could overturn a fit parent’s decision to exclude a grandparent from a child’s life, especially when the grandparent’s child is deceased and where the grandparent-child relationship was longstanding and significant. The court noted that courts could not interfere with a parent-child relationship or the child’s best interest and were also required to consider the extent of pre-petition contact.

The court ruled that the statute did not violate father’s equal protection rights, since classifying widowed parents and two-parent families was necessary to achieve the compelling state interest and narrowly tailored to only those grandparents whose child had died. Lastly, the court ruled that father’s relocation challenge was premature, as he had yet to file a petition for relocation.


Digest of Recent Opinions, Pennsylvania Law Weekly, 42 PLW 369, Tuesday, April 16, 2019, J. & S. O. v. C.H., PICS Case No. 19-0426 (Pa. Super. March 27, 2019)

Kindly visit our Child Custody and Family Law websites or contact one of our Child Custody Attorneys or Family Law Attorneys at 215-977-8200 for more information on this topic.