Grandparents' Rights to File For Custody When Parents Are Separated in Question

Posted by Joseph Lento | Dec 07, 2016 | 0 Comments

It takes a village to raise a child, and grandparents often serve a positive role in a child's life.  I come from a close family, and as such, I was always very close with my grandparents.  Only one grandparent is left, and I remain very close with my mother's mother, my "Mom-Mom."  I grew up when children still played outside, and even more so in this day and age, grandparents are involved in their grandchildren's lives increasingly more.  Because of this, Pennsylvania Family Law has long recognized that grandparents can file for custody when certain conditions are met.  

The issue of grandparents and child custody often arises when the child's parents either separate or divorce.   Grandparents who were once an integral part of a child's may find themselves no longer able to be a part of their grandchild's life when parents separate or divorce; especially if the separation or divorce is not amicable.

Although it has long been understood that grandparents can have custody rights to a grandchild in certain circumstances, a recent Pennsylvania Supreme Court ruling declared a statute which allowed grandparents to seek partial custody of a child whose parents are separated unconstitutional.  The Pennsylvania Supreme Court's ruling on September 9, 2016, is expected to have significant impact on grandparents' custody rights.

Two Recent Pennsylvania Supreme Court Family Law Cases Affecting Grandparents' Custody Rights

The two cases which went recently were addressed by the Pennsylvania Supreme Court were D.P. and B.P. v. G.J.P and A.P. (the parties' names were not included on the Court's docket to protect the parties' privacy).  In its decision, the Pennsylvania Supreme Court held that the Pennsylvania Family Law statute which allows grandparents to have custody rights of a grandchild when the grandchild's parents are separated assumes that the separated parents are unfit to raise their child merely because they are separated.  Although some parents regretfully do not always make the best decisions regarding how they raise their children, such a generalization is inaccurate on its face; in addition, Pennsylvania Family Law presumes that parents make good decisions for their children unless there is evidence to the contrary.  Despite that being the case, the Court's decision puts Pennsylvania grandparents in an unfortunate position as to seeking custody of grandchildren when parents go their separate way.

In the matter of D.P. and B.P., the children's parents were separated but had not filed for divorce or custody between themselves.  The children's parents instead agreed to a custody arrangement between themselves regarding the custody of their children.  (Parents do not always need Family Court to decide the custody of a child; parents can agree to custody and live with the agreement on their own, or they can agree and file the custody agreement with the Court.  If the custody agreement is approved by the Court, it will become a custody Order which the Court expects to be adhered to by both parents.)  In the custody agreement between D.P. and B.P., both parents agreed that the father's parents (the paternal grandparents) would not be allowed to see the children.  After the grandparents learned that they would not be welcome in their grandchildren's lives, the grandparents filed for partial custody.

Pennsylvania Supreme Court Rejects Grandparents' Right to File For Custody When Parents Are Separated

Despite the fact that Pennsylvania Family Law allows grandparents to file for custody after a child's parents have been separated for more than six months, the Pennsylvania Supreme Court rejected this principle; a principle nonetheless codified by statute - Under Section 5325, Subsection 2, of Pennsylvania law, the grandparents of the child can seek partial custody of the child “where [the] parents of [the] child have been separated for a period of at least six months, or have commenced a proceeding to dissolve their marriage" (filed for divorce).

Is the Pennsylvania Supreme Court Making, and not Interpreting, the Law?

One of the principles on which the United States was founded is that the judiciary has the power to interpret the law that the applicable legislative body has made.  The Pennsylvania legislature, made up of the Pennsylvania citizens' elected representatives in Harrisburg, is the legislative body that in Pennsylvania that makes the law; Family Law being only part of the Pennsylvania legislature's purview.

In the case of grandparents' custody rights in Pennsylvania, at a prior time, a bill was proposed regarding grandparents' custody rights.  Pennsylvania legislators proposed that grandparents in Pennsylvania should be allowed to file for custody of their grandchildren if the grandchildren's parents have been separated for more than six months or if grandchildren's parents filed for divorce.  Enough other Pennsylvania legislators agreed that this proposed custody right should become law, and therefore passed the bill so that it would be enacted and made a part of Pennsylvania Family Law.

The Courts in Pennsylvania, also known as the judiciary, interpret and rule on matters of Family Law, including grandparents' custody rights.  Custody cases are first addressed and ruled upon by the Court of Common Pleas in the county where the custody case is taking place; Philadelphia, Montgomery, Delaware, Bucks, or Chester County for example.  If not satisfied with the decision of the Court of Common Pleas for example, parties can appeal a Family Law matter to the Pennsylvania Superior Court, and thereafter to the Pennsylvania Supreme Court.

In law school, the legislative intent of a law is often discussed.  It would seem obvious that the Pennsylvania legislature believed that it was good policy for grandparents to be a part of their grandchildren's lives.  The Pennsylvania legislature also seemed to understand that when parents of a child are separating or divorcing, it can put the grandparents in the unenviable position of trying to remain a part of their grandchildren's lives when one parent or the other may no longer be receptive the the grandparent's involvement.  For example, if the parents are separated, and the maternal grandparents want to see their grandchild, due to hard feelings caused as a result of the parent's separation, the child's father may not want to accommodate the maternal grandparent's request to be remain a part of the grandchild's life.  A number of unfortunate scenarios are possible when parents separate or divorce, and the Pennsylvania legislator seemed to have this in mind when granting grandparents the right to file for custody, and either be or remain a part of their grandchildren's lives.

In the recent case before the Pennsylvania Supreme Court, the Court narrowly addressed the issue that was before the Court.  Since the parents in D.P. and B.P. never filed for divorce, the Court only addressed the portion of the Grandparent's Custody statute that addresses separation of more than six months. Two Pennsylvania Supreme Court justices dissented (disagreed with the majority opinion of the Court) and asserted that the entire statute should be eliminated, not just the part applicable to the case before the Court.

What Can Grandparents in Pennsylvania do if the Child's Parents Are Separated?

Regretfully, grandparents who want to be or remain a part of their grandchildren's lives will obviously not be pleased with the Pennsylvania Supreme Court's recent decision.  In addition, despite the fact that grandparents in Pennsylvania can file for custody of their grandchildren under different grounds, the Pennsylvania Supreme Court has arguably interfered with not only the Pennsylvania legislature's intent, but Pennsylvania Family Law itself.  Ultimately, the Court declared the "separation" provision invalid and unconstitutional based on a balancing test of parents' rights versus state interests.  The Pennsylvania Supreme Court, in its recent ruling, made clear that the rights of parents who are separated, with there being no evidence that the parents' decisions are not in the child's "best interests," supersedes that of the child's grandparents.

Grandparents would like to be or remain a part of their grandchildren's lives can still file for custody.  As the matter now stands, filing for custody based on the parent's six month or more separation will no longer be a valid ground to file.  A Grandparent's Custody Rights attorney can, however, guide grandparents to file under otherwise appropriate and valid grounds to get the custody of their grandchildren that they deserve; whether the custody case is taking place in Philadelphia, Montgomery, Delaware, Bucks, or Chester County.  Contact our Family Law Team today to learn how we can help.

About the Author

Joseph Lento

"I pride myself on having heart and driving hard to get results!" Attorney Joseph D. Lento is a veteran of one of the nation's busiest family courts with nearly 20 years' experience passionately helping families. By day, he worked in the trenches of family court, and at night, he studied the law. He helped countless families while working at family court, and he went on to become an attorney, dedicating his law practice to continuing the work he started years earlier. Mr. Lento's experience both behind the scenes and on the front lines allows him to understand a client's family law matter from all angles, and allows him to find and employ the most effective strategies to get favorable outcomes for any client. Joseph D. Lento is licensed in Pennsylvania New Jersey, and New York, and is admitted pro hac vice as needed nationwide. In the courtroom and in life, attorney Joseph D. Lento stands up when the bell rings!


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