In the recent case of D.P v. G.D.P the Pennsylvania Supreme Court tackled a touchy subject in child custody cases, that is the rights of the custodial rights of grandparents. Specifically, the case of D.P v. G.D.P struck down a provision of Domestic Relations Code that gave grandparents the legal ability, or standing, to sue for custody over their grandchildren because the children’s parents were separated for at least six months.
Do Grandparents have the Right to Visitation of their Grandchildren?
When parents are going through a divorce or due to any number of reasons the grandparents may choose to or want to have custody of their grandchildren. Specifically, Section 5325 of the Domestic Relations Code provided grandparents with the right to visitation and partial custody when the child’s immediate nuclear family unit was broken or when:
- The child’s parent(s) is deceased
- The child’s parents have been separated for at least six months or have filed a divorce or separation action, or
- The child has resided with the grandparent for at least 12 months.
Pennsylvania recognizes that grandparents do have some rights pertaining to their grandchildren as a means of safeguarding children from physical and emotional harm. However, while sections of this code have been enforced by Pennsylvania courts, there is an underlying theme that dominates any discussion of grandparents rights as superior to parental rights. That is absent such factors as abuse, neglect, or abandonment, the law presumes that parents are fit to raise their children and as such their parenting decisions are made in their child’s best interest. Indeed, the Pennsylvania courts have recognized that parents have a fundamental right and liberty in raising their children as they see fit and that any law that infringes on this right must survive a very difficult review process known as strict scrutiny. What this means is that while grandparents do have a right to partial custody and visitation of their grandchildren, that this right is inferior to the parent’s rights if they are acting in the best interest of the child.
Limiting Grandparent’s Rights
In this case, the parents jointly decided that their children should not have contact with their paternal grandparents while they were preparing for divorce. The grandparents filed a legal action two years after seeking partial custody over their grandchildren.
The Grandparents did not suggest that the grandchildren’s parents were unfit or that the children were in any danger, rather they based their argument why they were entitled to custody on Section 5325 of the Domestic Relations Code, and specifically on section 2 which read with the preamble is stated as follows
In addition to the situations set forth in section 5324 (relating to standing for any form of physical custody or legal custody), grandparents and great-grandparents may file an action under this chapter for partial physical custody or supervised physical custody in the following situations: (2) where the parents of the child have been separated for a period of at least six months or have commenced and continued a proceeding to dissolve their marriage…
However, the Pennsylvania Supreme Court did not find this argument sufficient to overcome the parent’s fundamental right to raise their children and that this section of the Domestic Relations code did not pass the stringent constitutional test of strict scrutiny. When the Pennsylvania Supreme Court again affirmed that parents have a fundamental liberty interest in raising their children as they see fit, they acknowledged that any law impinging on this right must be narrowly tailored to further a compelling government interest.
Specifically, the Pennsylvania Supreme Court did not agree that Section 5325(2) embodied a narrowly tailored means of serving the compelling state interest of protecting the welfare of a child or children who were at risk of harm, because this section improperly assumed that parents who were separated were unfit to make joint decisions regarding the upbringing of their children.
The Pennsylvania Supreme Court’s ruling had the effect of limiting the rights of grandparents to sue when the parents have made a decision regarding the upbringing of their children. By holding that “the fact of a parental separation for six months or more does not justify the state potentially disturbing the decision of presumptively fit parents concerning the individuals with whom their minor children should associate.” D.P v. G.D.P pg.19.
Work With the Strategic and Aggressive Philadelphia Child Custody Lawyers
At Sadek and Cooper, our attorneys will take the time to understand your situation and to make sure that you understand what to expect from the courts. Whether you have been dealing with the custody system for years already or you are just beginning to have concerns regarding the custody of your children, the lawyers of Sadek and Cooper may be able to fight for you and your family. To schedule a confidential child custody consultation at our Philadelphia, Bucks County, or Delaware County law offices call 215-814-0395 today or contact our firm online.