Grandparent Custodial Rights in Pennsylvania Since Recent PA Supreme Court Ruling
On September 9, 2016, the Pennsylvania Supreme Court issued a riveting opinion in the matter of D.P. v. G.J.P., 146 A.3d 204 (Pa. 2016) which ruled a statutory provision, 23 Pa.C.S.A. § 5325, that previously afforded grandparents standing to seek custody of their minor grandchildren, to unconstitutional and therefore invalid. Prior to the D.P. opinion, 23 Pa.C.S.A. § 5325 granted standing to grandparents and great-grandparents for partial physical custody or supervised physical custody in the following scenarios:
- Where the parent of the child was deceased, a parent or grandparent of the deceased parent could file an action;
- Where the parents of the child had been separated for a period of at least six months or had commenced and continued a proceeding to dissolve their marriage; or
- When the child had, for a period of at least 12 consecutive months, resided with the grandparent or great-grandparent, excluding brief temporary absences of the child from the home, and was removed from the home by the parents, an action must have been filed within six months after the removal of the child from the home.
The D.P. case invalidated the first clause of 23 Pa.C.S. § 5325(2) “where the parents of the child have been separated for a period of at least six months” as a prong upon which grandparents or great-grandparents may rely upon to prove standing to request physical custody of their minor grandchildren. The D.P. Court found this clause to be unconstitutional, in answering the inquiry as to whether the Commonwealth “may exercise its interest in fostering grandparent-grandchild relationships over the objection of presumptively fit parents solely on the basis that they have been separated for at least six months.” D.P. v. G.J.P. 146 A.3d 204, 214 (Pa. 2016).
The Pennsylvania Supreme Court concluded that mere parental separation for six months or more does not render the states interest significant enough to justify disturbing the decision of presumptively fit parents regarding who should be permitted to exercise physical custody of the minor child. This clause was deemed to violate the fundamental rights of parents to raise their children.
The Court noted that the second parent of 23 Pa.C.S.A. § 5325 granting standing to grandparents when the parents have not only separated but also “have commenced and continued a proceeding to dissolve their marriage” is uncertain, and Justices Baer and Wecht opined in their concurrent/dissenting opinions that 23 Pa.C.S. § 5325(2) should be stricken in its entirety.
It appears the Court is waiting for that narrow and specific issue to be presented to them. Grandparents’ custodial rights are currently in a state of uncertainty in Pennsylvania.
Give the attorneys at Tanner Law Offices, LLC a call at (717) 836-0471 to schedule a , 30 minute consultation to discuss grandparent custody.