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Standing and Grandparents' Rights: 8 Years of Legislative Give and Take

[caption id="attachment_21519" align="alignleft" width="245"] John Zurzola.[/caption] In my previous article for the Nov. 23, 2016, edition of The Legal Intelligencer, I wrote about the then recently reported case D.P. and B.P., his wife v. G.J.P and A.P., 636 Pa. 574; 146 A.3d 204 (Pa. 2016). In D.P., the Supreme Court reviewed a lower court decision that had found that certain provisions of the custody statute granting grandparents standing were invalid. Previously, the Superior Court generally reaffirmed parents’ “fundamental liberty interest in raising their children as they see fit,” and relied on the U.S. Supreme Court opinion in Troxel v. Granville, 530 U.S. 57, 65 (2000)). The Supreme Court distinguished previous court decisions from the facts present in D.P. that had involved married parents who were separated for more than six months but had not filed for divorce. Finding no empirical data to suggest that a six month separation has the same adverse impact upon children as do parents actually in divorce proceedings (or divorced), the court found no “compelling interest in safeguarding children from various kinds of physical and emotional harm and promoting their well being” simply because parents were separated for longer than six months and found that section of 23 Pa.C.S. Section 5325(2) unconstitutional. The decision was accompanied by two short but pointed concurring and dissenting opinions filed by Justices Max Baer and David Wecht that would have gone further in eliminating the divorce provisions of the grandparents’ statute conferring standing and argued generally that that the mere fact of a parents’ divorce (as well as six-month separation) is not enough to relieve a grandparent from the necessity to demonstrate that the children are being harmed in order to satisfy the compelling state interest. Wecht saw the remaining and applicable divorce provision in 23 Pa.C.S. Section 5325(2) as an equal protection violation after dropping the six month separation requirement conferring standing as discriminating between grandparents of married and divorced parents and argued that the current statute after the majority decision “consigns roughly half the population to second-class status … to stigmatize these citizens and their children.” D.P. was significant as it immediately invalidated a section of the custody statute that grandparents could cite in order to establish standing for seeking physical custody of their grandchildren based on a six month separation of the parents (not in divorce). On the back of the 2010 amendments to the custody statute which added a six month time period in which grandparents had to petition a court for custody after removal of the grandchildren from their home, D.P.’s removal of an avenue for grandparent standing was yet another procedural blow to grandparents’ rights. Now, some two years later, the legislature has moved to address the holding in D.P., but has taken the remedy a step further and expanded standing for grandparents and others in certain situations. Senate Bill 844, 2017-2018, was signed into law on May 4 (Act 21 of 2018) and is in effect as of July 3. Sponsors of the bill addressed the need to bring the applicable statute(s) into compliance with D.P. but also pointed out deficiencies in the current statute that could actually prevent grandparents that have otherwise been involved in their grandchildren’s lives from petitioning for custody but allow unrelated third parties a clear avenue to obtain custody of children. The bill adds new provisions to 23 Pa.C.S. Section 5324 “Standing for any form of physical custody or legal custody,” and to 23 Pa.C.S. Section 5325 “Standing for partial physical custody and supervised physical custody,” codifies the holding in D.P. and also may help to remedy the equal protection problems with D.P. that dissenting Wecht pointed out that left grandparents with grandchildren of unmarried parents out in the cold. 23 Pa.C.S. Section 5324 added a new subsection (4) providing that any individual—including grandparents—may have standing who can establish by clear and convincing evidence that: the individual has assumed or is willing to assume responsibility for the child; the individual has a sustained, substantial and sincere interest in the welfare of the child; and that neither parent has any form of care and control of the child. Retaining the now normalized grandparents specific provisions in Section 5324(3), the addition of new subsection (4) to the statute should allow grandparents to demonstrate standing who otherwise cannot meet the stringent requirements in Section 5324(3) allowing grandparents standing only if they could show that a dependency petition has been filed, or that the child is substantially at risk, or that the grandparents have petitioned the court within six months of grandchildren having been removed from their home. A catchall provision of sorts, the new language may allow courts to carve out some form of physical custody for grandparents when grandchildren are in the primary care of an unrelated individual standing “in loco parentis” to their grandchildren. 23 Pa.C.S. Section 5325(2), which sets forth the requirements for standing for partial physical and supervised physical custody, is amended to remove both avenues for standing based on the six month separation of parents as eliminated by D.P. and also the requirement that grandparents demonstrate that the parents of the children are in divorce. This amendment addresses directly the equal protection problems that may have existed in the previous statue after D.P. All that is required now is that the parents of the children are involved in a custody proceeding and that the parents do not agree that grandparents or great grandparents should have any custody. Section 5325 still retains provisions allowing for grandparent standing when grandparents have petitioned the court within six months of grandchildren having been removed from their home. The amendments to Section 5324 are significant in that they retain the specific section for grandparents not in loco parentis to the children but expand standing for those grandparents (and others) who cannot show that the children are in dependency proceedings, are at risk or have resided with them for 12 consecutive months. After D.P., grandparents of children of unmarried parents (not in divorce) lost the ability to simply show a six month separation in order to request partial physical custody. The amendments to Section 5325 allow for a simple showing of a custody filing, an all-too-common scenario which if not present, can be established by a simple court filing from, say, a parent in league with a grandparent seeking a custody order. The amendments, all taken together, will allow grandparents not fitting into any of the previous boxes allowing for custody and no longer permitted to simply show a divorce or the previous six month separation the ability to petition for custody against third parties like step parents or significant others of former parents who have custody of their grandchildren. For unmarried couples with children, a very modern and common occurrence, who are simply involved in custody proceedings, grandparents can now much more easily obtain standing when one of the parents disagrees with their custody. Other than relying on the friendly parent to a custody proceeding to allow the grandparents to see the children (sometimes in violation of court orders), grandparents have their own right now to petition for partial or supervised physical custody. The last eight-year evolution of the statute conferring standing to grandparents and other parties to file for custody of children has been an interesting exercise in “give and take.” In order to examine the threshold question of standing in any case, especially when involving grandparents, even an experienced practitioner might have to make a chart reconciling both Sections 5324 and 5325 under the new amendments to determine how to proceed. John A. Zurzola is a partner at Weber Gallagher Simpson Stapleton Fires & Newby in the firm’s family law group located in the Norristown office. He concentrates his practice on family law matters to include complex divorce and child custody cases as well as in assisting clients who require prenuptial and post-nuptial agreements.