Separation and divorce can be upsetting for both the married couple and their children. Not knowing what the future holds can also be concerning for grandparents, who may wonder if they’ll see their grandchildren, especially if the divorce is particularly acrimonious. And, while custody disputes are usually left to the parents, in some cases, grandparents may get involved.
Section 5325 of the Pennsylvania Domestic Relations Code (“Section 5325) allows grandparents and grandparents to file an action for partial physical custody or supervised physical custody of their grandchildren in particular circumstances, including in cases where the children’s parents have been separated for six months or more.
D.P. v. G.J.P.
However, the Pennsylvania Supreme Court recently issued an opinion in D.P. v. G.J.P. that has altered Section 5325. The question for the court was whether Section 5325 violated the parents’ fundamental rights by allowing grandparents to sue for custody after the parents had been separated for six months.
In this case, the parents, G.J.P. and A.P. separated on October 2012, but did not begin divorce proceedings. The parents had three minor children and were in agreement about custody arrangements and did not seek a court order regarding child custody during their separation. In December 2012, the parents determined that it would be in the best interests of the children to discontinue all contact with the paternal grandparents, D.P. and G.J.P.
The grandparents initiated a court action seeking partial custody of the children based on the six-month separation provision of Section 5325. They did not allege that the parents were unfit or that the children were in danger.
The parents contended that the six-month provision of Section 5325 violated their Fourteenth Amendment due process and equal protection rights. Parents have a fundamental right to raise their children as they see fit. Because of this fundamental right, Section 5325 must hold up to strict scrutiny by being narrowly tailored to further a compelling government interest. The court found that the government has a compelling interest in protecting the welfare of children who are at risk. Because Section 5325 improperly assumes that parents who are separated for six months are placing their children at risk, the court held that the law was not narrowly tailored, and thus violates parents’ Fourteenth Amendment rights.
Remaining Grandparent Custody Rights
While the Supreme Court may have struck down the six-month separation provision of Section 5325, there are still circumstances in which grandparents and great grandparents may still seek some level of custody over their grandchildren.
- The parents of the child are deceased
- When the child has resided with the grandparents for at least 12 consecutive months and the child has been removed from the home by the parents
In addition to rights conferred by Section 5325, additional custody rights are conferred on any individual, in situations where the child is a ward of the court or is at risk for abuse.
If you are concerned about your child custody rights as a grandparent, expert custody attorney Gary R. Swavely, Jr. can help. Call today for a consultation at (610) 816-6366.