On September 9, 2016 the PA Supreme Court restricted Grandparents’ rights to seek partial custody of their grandchildren. The case, known formally as D.P. v. G.J.P., or the Ponko case, originated in Westmoreland County, and was argued before the Supreme Court earlier this year. Although the decision is very narrow, it could have far-reaching effects on grandparent’s rights in child custody cases in Pennsylvania.
In this case, the maternal grandparents (i.e. mother’s parents) brought a child custody action against mother and father seeking partial custody of the minor children. Mother and father were separated, but had not filed for divorce. They had no prior court involvement with regard to child custody, and were in agreement on all custody issues. A key fact in this case is that both Mother and Father were opposed to maternal grandparents having any custody rights.
The grandparents argued they had standing to seek custody under 23 Pa.C.S. 5325(2), which permits grandparents to seek partial custody anytime the parents had been separated for at least six months.The six-month separation requirement has been valid Pennsylvania law since 1985.
Mother and Father in this case argued that allowing the grandparents to seek custody against both their wishes, merely because they were separated, was a violation of their rights under the U.S. Constitution – particularly their Fourteenth Amendment rights of due process and equal protection. The crux of their argument was that, as parents, they have a fundamental right to raise their children as they see fit, so long as they are not committing abuse or neglect. Judge Smail in Westmoreland County agreed, and dismissed the grandparent’s case.
The Pennsylvania Supreme Court upheld Judge Smail’s decision. A majority of the Justices ruled that the six-month rule violated the parents’ fundamental right to raise their children without government interference. Although the ruling only restricts the ability of grandparents to seek custody of their grandchildren when parents are in agreement on that issue, this case could have far-reaching implications. It will be interesting to see what happens when courts are faced with other fact patterns, for example – what if one parent has sole legal custody of his/her children, with no involvement of the other parent? Can that parent, the sole decision-maker, slam the courthouse door on grandparents based on this case? What about non-married couples? These scenarios will play out in trial courts across the Commonwealth, so stay tuned.
The good news is that the case has no effect on grandparent’s rights in cases where the child has resided with the grandparent for a year or more, or where the grandparent is in loco parentis (acting as parent) to the child. Grandparents can also still seek primary custody in cases where their grandchildren are at risk because of abuse, neglect, or drug/alcohol abuse of a parent, or if the grandchildren are in the custody of CYS.