Pennsylvania Supreme Court Strikes Down Part of Grandparent Custody Law

Parents' Marital Separation is Not Enough

September 17, 2016 | Blog, Child Custody, Court Decisions

Icon for author Brian Vertz Brian Vertz

Grandparents who seek custody rights faced a setback this month when the Pennsylvania Supreme Court struck down a portion of the law that allowed grandparents to sue for custody when the children’s parents were separated for at least six months.  The Supreme Court, in D.P. and B.P. v. G.J.P. and A.P., No. 25 WAP 2016 (September 9, 2016), examined the grandparent standing law, that defines which grandparents may sue for custody rights.  The law, which was re-formulated in 2011, grants standing to the grandparents of children whose parents are deceased, divorced, or separated for six months; or removed from the grandparents’ home after living there for at least a year.  “Standing” means the right to sue for custody.

In this case, grandparents sued for custody after the children’s parents were separated for more than six months.  The parents of the children, however, were co-parenting during their separation and agreed that they did not want the grandparents involved. The parents did not permit the grandparents to be involved or even see their grandchildren. They did not want to be forced to defend a lawsuit brought by the grandparents in custody court.

When the grandparents sued for partial custody rights, the parents objected.  They argued that they did not want the grandparents to have weekends or after-school time with the children, but more fundamentally, that Pennsylvania’s custody law violated their constitutional right to raise their children as they saw fit.  If parents do not want to share their children with grandparents, they argued, they have a constitutional right to refuse; and any law that infringes that right must be narrowly tailored.  Pennsylvania’s custody law treats separated parents differently from parents of intact families, without good cause, they argued.  And they won.

Pennsylvania Supreme Court Ruling

Currently the Pennsylvania Supreme Court is staffed with eight Justices, and there is a vacancy for a ninth.  All eight Justices agreed that a portion of Pennsylvania’s grandparent custody law is unconstitutional, violating both equal protection and due process clauses of the Fourteenth Amendment.  The law makes a classification of parents (separated) who are treated differently, exposing them to the risk of being sued by grandparents.  The rationale for this is that children of separated parents are more likely to suffer from harm that children of intact families do not suffer.  Yet, it was unclear to the Justices what harm those children suffer, or how the law remedies that harm by making it easier for their grandparents to sue.  Because the grandparent custody law was not narrowly tailored to remedy the perceived harm while preserving the parents’ constitutional rights, the Supreme Court struck down that portion of the law.

The court did not void the entire grandparent custody law; grandparents will continue to have standing to sue for partial custody rights in cases where parents are divorced or deceased, or where the children have been removed from their grandparents’ care after residing with them for at least a year.  Two of the six Justices, however, would have struck down the law giving standing to grandparents of children whose parents were divorced, as they noted in their concurring opinions.

Some important questions remain:

  1. Does this decision invalidate custody orders obtained by grandparents whose only basis for standing is or was the parents’ separation?
  2. What about cases that being prosecuted in court right now?
  3. Will the same arguments be made to strike down grandparent standing based upon the parents’ divorce?
  4. Will the parents seek review in the U.S. Supreme Court?

Pollock Begg’s lawyers have been resolving custody disputes through negotiation, mediation and litigation for decades. We maintain an up-to-date knowledge of the latest decisions and social science research which provides an edge in resolving the tough questions that arise when child custody is at stake. Partners of our firm have pursued and defended appeals in custody cases, even at the Pennsylvania Supreme Court.

When dealing with complicated grandparent custody disputes, you need good advice, experience, knowledge and common sense. Get in touch with the custody team at Pollock Begg for prompt, effective help with your custody case.

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