Pennsylvania Record

Thursday, August 22, 2019

Pennsylvania Supreme Court rejects part of law allowing grandparents to seek custody in separation

By Carrie Salls | Nov 17, 2016

HARRISBURG – A Sept. 9 Pennsylvania Supreme Court ruling that declared a statute allowing grandparents to seek partial custody of the children of separated parents unconstitutional figures to have a significant impact on grandparents’ custody rights.

“At a time when grandparents are becoming increasingly more involved in raising their children’s children, it’s a pretty big deal,” J. Paul Helvy, chairman of the Family Law Practice Group at McNees Wallace & Nurick LLC, told the Pennsylvania Record.

In the case D.P. and B.P. v. G.J.P and A.P., the commonwealth’s high court found that the statute in question improperly assumes that parents are unfit to raise a child simply because of a marital separation. Helvy said there is a presumption in the courts “that parents are making good decisions for their kids.”

D.P. and B.P. involves parents who were separated but never filed divorce or custody proceedings. Instead, the parents agreed on their own to the custody arrangement. Both parents agreed that the children’s paternal grandparents should not be able to see the children.

As a result, the paternal grandparents sought partial custody in court.

Although an existing statute allows grandparents to file for custody once a child’s parents have been separated for longer than six months, the Supreme Court rejected that statute.

Under Subsection 2 of Section 5325 of Pennsylvania law, “where parents of a child have been separated for a period of at least six months, or have commenced a proceeding to dissolve their marriage,” the grandparents are free to seek partial custody.

Helvy said there was at least one unique aspect of the Supreme Court’s ruling.

“It’s not all that often that the Pennsylvania Supreme Court finds statutes … invalid and unconstitutional,” Helvy said.

However, Helvy said the court was careful to stop short of actually making legislation.

“It’s interesting that they so narrowly addressed (only) the issue that was directly in front of them,” he said.

Since the parents in question never formally filed for divorce, the Pennsylvania Supreme Court only dealt with the portion of the statute that addresses separation of more than six months. The two dissenting justices felt that the entire statute should be eliminated, not just the part applicable to this case.

Still, Helvy said he was not particularly surprised by the ruling, especially when considering similar aspects of family law. For example, he said, according to case law, divorcing parents could be forced to put their children through college, even though parents in “intact families” have no such obligation.

“I have been thinking that it’s possible this could occur for some time,” Helvy said.

According to Helvy, in rulings like this one made by the Supreme Court, courts apply a balancing test of parents’ rights versus state interests.

In the future, Helvy said, there may be a push to invalidate the statute that says grandparents can seek custody if parents are separated for six months or more. He said the Pennsylvania Bar Family Law Section is also considering this matter.

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McNees Wallace & Nurick LLC Pennsylvania Supreme Court