On September 9, 2016 the Pennsylvania Supreme Court ruled that portions of the current child custody law were an unconstitutional interference with the fundamental right of parents to raise their children in accordance with their own standards and beliefs. It involves some unusual facts and a quirky portion of the custody law defining when grandparents have standing to seek an award of partial physical custody.

The section in controversy, was enacted in 2010. It relates only to requests for partial custody. In D.P. and B.P. v. G.J.P. and A.P., the mother and father of the subject children had separated for more than six months but no divorce action had been filed. Referencing Section 5325(2) the grandparents brought their action for partial physical custody of the children. Both mother and father filed a motion to dismiss this action asserting that they jointly objected to such an award. The trial court in Westmoreland County considered the objections and, citing the US Supreme Court’s 2000 ruling in Troxel v. Granville, determined that because this was an interference with parental custodial rights deemed fundamental as a matter of law, the statute conferring these rights was subject to strict scrutiny. 530 U.S. 57,65. Under that standard, the state had a duty to demonstrate a compelling need to legislate in this area and the grandparents had failed to show the state had met that standard in crafting Section 5325(2). The only statutory threshold to invade the fundamental rights of the parents to raise their children without interference was a separation of six months. The Court noted that this case involved no assertion that the children were not adequately cared for or that there was other reason for legislative action to protect the children.

The trial court ruling was immediately appealed to the Supreme Court which heard argument in early April. In an analysis by Chief Justice Saylor, the high court concluded that in circumstances where a parent was deceased (Sec 5325(1)) or where a child had actually lived with a grandparent, there was a compelling basis for state action. But, where, as here, the parents actually agreed that grandparent custody was not in the child’s best interests, the state had no basis to interfere with that determination. The majority decision was careful to restrict the holding to cases where parents had separated, appearing to preserve the right of grandparents to make custodial claims once a divorce was filed. Dissenting opinions by Justices Baer and Wecht argue that this distinction was not sustainable under a strict scrutiny standard as the existence of a divorce filing was not more a basis to warrant judicial intervention in family affairs than a separation of six months.

This is an interesting crack in the door and one which invites eventual removal of the door. The dissents ask questions such as: suppose the parents disagree about grandparent visits or file for divorce? Is the door now open? Suppose the parents never did marry or even live together? This heads into even more controversial territory which is fast coming upon us. Who is a parent for purposes of custody and support? Genetic testing affords us the ability to determine this in a biological sense. But we have started to see more and more cases working around adults acting in some form of loco parentis. Obviously, grandparents and, according to the statute great grandparents have their own rights. In a world where “parents” move freely from one relationship to another and children often “attach” to these adults, is there a limit to how many participants can be involved before it becomes clear that the litigation is itself a harm to the child? This is a question which was not before the court but it looms larger every day.

D.P. and B.P. vs. G.J.P. and A.P. Journal-53-2016 25 W.A.P. 2015 (9/9/16)