Pennsylvania Family Law and Divorce
Lisa Marie Vari & Associates, P.C.

Pennsylvania Grandparent Custody Statute Challenged in Westmoreland County

On September 18, 2015, Judge Smail of the Westmoreland County Court of Common Pleas determined that a portion of the statute providing partial custody rights to Grandparents is unconstitutional. Duane Ponko & Bernadette Ponko vs. Gregory Ponko and Angela Ponko concerned divorced co-parents of three children, who made a decision together to discontinue paternal grandparents' contact with their grandchildren. Subsequently, the grandparents chose to initiate a custody complaint pursuant to 23 Pa.C.S. § 5325(2) which provides standing to grandparents seeking partial custody of children whose parents have been separated for a minimum of six months.

Judge Smail's Opinion determined that this section is an unconstitutional violation of parents' fundamental right to raise their children how they see fit, and furthermore that it overrides the fundamental presumption that fit parents act in the best interest of their children.

In determining that the law in question violates the due process and equal protection rights parents have under the United States Constitution, the Judge's ruling is expected. A decision of this magnitude could have a major impact not only in Westmoreland County, but throughout Pennsylvania. If Judge Smail's Decision is affirmed, grandparents statewide would lose significant standing in claims for partial custody.

The ramifications of this decision are still unknown., but the statute in question is one of many such statutes in several states around the country that have been challenged on the basis of an infringement upon the fundamental rights of fit parents. The courts that have considered these statutes in recent history appear to be split on the issue, which side Pennsylvania will end up on remains to be seen.

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