Friday, September 16, 2016

GRANDPARENT CUSTODY - Grandparents Rights: Wrong?

Switching gears in what had been a few decades of continually expanding rights for grandparents in the state of Pennsylvania, on September 9, 2016, in the case of D.P. & B.P., his wife, v. J.P. & A.P., the Pennsylvania Supreme Court issued an opinion which would now serve to limit the times at which grandparents can seek partial custody of their grandchildren in Pennsylvania.

In D.P., the Court framed the question before them as being whether or not “the parents’ fundamental rights are violated by the conferral of standing based solely on a parental separation lasting at least six (6) months.” Take the legalese out of that, it used to be that any grandparent could sue for partial custody of their grandchild if mom and dad had been separated for six (6) months or more (or never together). There was no need to prove that it was in the best interest of the children for the grandparents to assert their rights--they got to do it anyhow and the resulting custody schedule would then be based on what was in the best interest of the children.

In D.P., the parents of the children had been separated for a few years, but never filed anything with the Court. The parents continued to co-parent and agreed between the two of them that the grandparents should not get to see the children. Approximately two years after the parties separated, the grandparents filed a Complaint for Custody asking for time with the children over the parents’ objections. The grandparents did not tell the Court anything to suggest that mom and dad were unfit or that the children were in any danger with mom and dad.

Under the existing statute, 23 Pa. C.S.A. 5325, this was an acceptable basis for grandparents to sue for custody. Attached is a link to the full text of the statute. After the grandparents sued, the parents indicated that the statute violated their 14th Amendment Rights to Due Process and Equal Protection. The Trial Court in Westmoreland County agreed with the parents, finding that the parents had a fundamental liberty interest in raising their children as they see fit. The trial court determined that the language in the Custody Act was not narrowly tailored enough to survive a strict scrutiny analysis as a matter of constitutional law. They found that the parents had jointly decided the children would have no contact with the grandparents and suggesting they were unfit to make this determination simply because they were separated would be an error. The trial court held that there was not an adequate basis to disturb the ordinary presumption that fit parents act in their children’s best interest.

The Supreme Court summarized the lower court’s opinion as follows: “in as much as the law presumes that married parents living together are able to co-parent their children without judicial interference, there is no constitutionally sound basis to support a classification whereby married parents who are separated should be treated differently.” In this regard, the Court indicated that, “The statute reflects an inappropriate ‘implicit presumption of unfitness’ attached to separated parents solely on account of their separated status.”

The PA Supreme Court’s opinion, linked here, (link) contains an interesting review of the history of grandparents’ rights cases in Pennsylvania, factually distinguishing them from D.P. as involving various cases of either parental unfitness, divorce, or death of a parent.
Counsel for parents further went on to differentiate D.P. as being a case where Court intervention was never sought by the parents, where they were never subject to an Order of Court prior to grandparents filing a Complaint, and where the parents did not disagree with regards to matters of custody or visitation.

The parents went on to suggest that, “Many couples who live together lead dysfunctional homes and make poor parenting decisions, all of which evidences the arbitrariness of §5325’s implicit assumption that separated parents are less fit as parents than those who live under the same roof. Consequently, parents proposed that the legislative classification which rests on that assumption does little to advance the state’s interest in protecting children or promoting their welfare.”
In its analysis, the Supreme Court recognized that grandparent visitation and custody statutes inherently authorize state action and are subject to constitutional limitations. It further went on to state that it is clearly undisputed that §5325 “burdens the right of parents to make decisions concerning the care, custody, and control of their children; that such right is a fundamental one.”

After an analysis of the arguments set forth by the parents and grandparents, the Court acknowledged that, very broadly speaking, the state does have the power to safe-guard children from various kinds of physical and emotional harm as well as promoting their well-being, but that right alone would not, in this case, extend to allow the Court to intervene in a family who never sought the Court’s involvement, stating, “As this case shows, when parents separate they do not always initiate divorce proceedings or otherwise request court involvement in their family affairs.” “Although separation may involve a disruption of the nuclear family unit, the children are often shielded from having to participate in court proceedings and are, likewise, free from having to assimilate the knowledge that the government is now involved in their family life.”

The Court also noted that the grandparents failed to present to the Court empirical data which would suggest the separation has the same deleterious effects on children as divorce. As this type of information was presented in prior grandparent cases, the court did not change the part of the statute that allows grandparents to seek custody when the parents are divorced or deceased.

The Court did note that parents who were involved in divorce proceedings or who were divorced could potentially agree to limit their children’s contact with third parties but declined to address that issue in its opinion, as the only issue before it was whether or not the parents could do so when merely separated. The Court noted that they found court-mandated association with third parties more intrusive to parents’ constitutional rights when they had not themselves sought the Court’s oversight relative to custody or marital dissolution.

After its analysis, the Court found that the language of §5325 relative to grandparents’ standing in the event of a six (6) month separation was “not narrowly tailored in furtherance of a compelling governmental interest” (meaning it was not structured with precision and that the legislature could have chosen a less drastic means of effectuating objectives).

The Court finally noted that in confronting a constitutional flaw in a statute, they are to provide a limited solution affecting only those unconstitutional portions of same. As such, the Court only removed the second portion of Paragraph 2 with regard to six (6) months separation to be invalidated.

However, it appears from the language of the Court’s main opinion, as well as the dissenting opinions entered by Justices Baer and Wecht, there are still concerns regarding the constitutionality of the remaining provisions of 23 Pa. C.S.A. 5325.

Does this affect your rights with regards to custody? If you think it might, you should speak with an attorney.

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