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
“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.