Pennsylvania Supreme Court to Hear Constitutional Challenge to Grandparent Visitation

November 30, 2015 | Child Custody, Court Decisions, Legal Perspective

Icon for author Brian Vertz Brian Vertz

This month, the Supreme Court of Pennsylvania accepted a custody case involving a constitutional challenge to the grandparent custody law.  In D.P. and B.P. v. G.J.P. and A.P. (Ponko), No. 25 WAP 2015, the custody case bypassed the Superior Court, going straight up to the Supreme Court after a Westmoreland County trial court held that the grandparent custody statute was unconstitutional.

Under the current law (23 Pa.C.S. § 5325), in effect since 2011, grandparents have standing to pursue visitation or partial custody of their grandchildren if the parents have filed a divorce action or have been separated for six months.  Under case law, this standing has been extended to grandparents of children whose parents were never married. Pennsylvania law gives parents a distinct advantage over grandparents, creating a rebuttable presumption in favor of parents, and requiring grandparents to overcome the presumption by clear and convincing evidence. 23 Pa.C.S. § 5327(b).

Prior to 2011, the custody law restricted standing to cases in which grandparent visitation “would not interfere with the parent-child relationship.”  Additionally, the court was required to consider “the amount of personal contact between the parents or grandparents of the party and the child prior to the application.”  That language was omitted from the 2011 version of the grandparent custody statute.

The constitutionality of the prior grandparent standing law (23 Pa.C.S. § 5312) was upheld by the Pennsylvania Supreme Court in 2007, by a slim margin of 4-3.  In Schmehl v. Wegelin, 927 A.2d 183 (Pa.2007), four Justices of the Supreme Court (led by Justice Saylor) pointed out that the Equal Protection Clause does not prohibit legislative classifications that treat people differently, if there is sufficient justification.  When a fundamental right is implicated, the court must apply a strict scrutiny test, and the state must show a compelling government issue.  The grandparents in that case asserted that the state has a compelling interest in protecting health and emotional welfare of children, and particularly children who lack the safety net of an intact family structure.  The Supreme Court in Schmehl noted that a similar argument was successfully made in Hiller v. Fausey, 904 A.2d 875 (Pa.2006).

The majority in Schmehl collapsed their Equal Protection and Due Process analyses into a hybrid that avoided the strict scrutiny test.  The U.S. Supreme Court had done the same when addressing grandparents’ rights in Troxel v. Granville, 530 U.S. 57 (2000).  Instead the Court granted judges the power to balance parental rights on a case-by-case basis.  This same approach was later adopted by the Pennsylvania Supreme Court in Hiller and Schmehl.

In Ponko, the Westmoreland County trial court distinguished these decisions, holding that the state’s parens patriae interest might be sufficiently compelling to justify government interference when a parent has died, but not sufficient to grant visitation to grandparents over the objections of living parents.  This same rationale fueled a vigorous dissent by Justices Baldwin and Castille in Schmehl.

Ponko might actually test the Pennsylvania Supreme Court’s position on this issue, which is interesting given the recent election of three new Justices.  Whether or not one agrees with the outcome, it is a well-written decision that will require thoughtful analysis and spark a worthy debate.


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