Grandparent Custody Act: Supreme Court rules part unconstitutional
The most important, first step is to learn whether you have “standing” to request grandparent custody. “Standing” means the legal right to ask the court for custody. Informally, think of it as “getting your foot in the door” to get “a bite at the apple.” It is only possible to seek custody of grandchildren under certain circumstances, which are outlined in 23 Pa.C.S.5324. In general, a grandparent must be taking care of the child (in loco parentis) or desire be the grandchild’s primary custodian due to the parents’ failure or inability to perform their duties. The final step is always to prove that it is in the child’s best interest to live primarily with a grandparent. In an article that we previously published entitled “Do you have custody of your grandchild?” we explained the legal steps that you need to take to get custody of your grandchildren.
The law also describes when a grandparent has “standing” to ask for “partial custody,” or visitation, with a grandchild. 23 Pa. C.S.A. 5325. The law as currently written says that a grandparent can request a court-ordered visitation schedule under certain conditions, including:
1) where a parent is deceased;
2) where the parents have been separated for at least six months or have initiated and continued divorce proceedings (emphasis added); or
3) where the child lived with the grandparent for at least twelve consecutive months and is removed from the grandparent’s home by a parent.
Now, however, the first clause of paragraph two has been disallowed by the Pennsylvania Supreme Court. In the case of D.P. v. G.J.P., 25 WAP 2015, decided September 9, 2016, the Court ruled that it is unconstitutional to allow grandparents to seek partial custody solely because the parents “have been separated for at least six months.”
The parents in the D.P v. G.J.P. case won the legal argument that their separation should not be enough to give the grandparents “standing” to ask for partial custody. The Supreme Court agreed with the parents and said this section of the law violated parents’ fundamental, constitutional rights and cannot be used to ask the Court to award the grandparents’ custody. The entire opinion can be read here:
Under the Fourteenth Amendment, parents have what the courts call a “fundamental liberty interest in raising their children as they see fit.” This includes the right to decide whether the grandparents should have regular visitation with their children. It is assumed that parents act in their children’s best interests, and this fact does not change when parents decide to separate.
Courts in Pennsylvania may no longer intervene to order grandparent visitation just because the parents have been separated for six months. For now, unless and until the law is re-written, it is still possible for a grandparent to seek visitation rights through the Court. It can only happen under paragraphs one and three of the law, when there is a deceased parent, or when the grandparents have had custody for a year and the child returned to the parent’s care. It is now unconstitutional to infringe on a parent’s rights and give a grandparent partial custody solely because of the breakup of the parents.
If you are a parent or a grandparent who wants to know more about the Grandparent Custody Act and how the Constitution can affect family law, talk to an attorney at the Mazza Law Group for legal information and advice.
Grandparent Custody Act: Supreme Court rules part unconstitutional was last modified: November 4th, 2016 by Judith Homan