BIG Changes to Grandparent Standing in PA, Part I

In Pennsylvania, Grandparents are provided standing in limited circumstances if it is determined to be in the best interests of the child. 23 Pa. C.S.A. § 5325 provides grandparents standing for partial physical custody or supervised physical custody in the following situations:

(1) where the parent of the child is deceased, a parent or grandparent of the deceased parent may file an action under this section;

(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; or

(3) when the child has, for a period of at least 12 consecutive months, resided with the grandparent or great-grandparent, excluding brief temporary absences of the child from the home, and is removed from the home by the parents, an action must be filed within six months after the removal of the child from the home.

The 2015 landmark case of Ponko v. Ponko invalidated subsection 2 on the grounds that it violates the due process clause and equal protection clause of both the PA and United States Constitution.

The plaintiff grandparents in Ponko relied on § 5325(2), which gives grandparents standing to seek partial physical custody of children whose biological parents have been separated for a period of 6 months or more.

The defendant parents moved to dismiss the complaint on the grounds that it violated their fundamental right to parent; the court agreed, holding that § 5325(2) burdens this constitutionally protected right. The court indicated that the statute reflects an inappropriate "implicit presumption of unfitness" attaching to separated parents solely on account of their separated status.

This supported the plaintiffs argument that many couples who live together "lead dysfunctional homes and make poor parenting decisions, all of which evidences the arbitrariness of § 5325's implicit assumption that separated parents are less fit as parents than those who live under the same roof."

Because the mere fact of separation does not give rise to a fair assumption that the child is without proper parental supervision or care, the superior court upheld the trial court's decision, the grandparents' complaint for custody was dismissed.

The case further restricts the already limited standing granted to grandparents. So how has the Ponko decision affected grandparent standing for custody in PA?

Stay tuned for Part II to find out!

If you are a grandparent or parent that has questions relating to standing, contact us to speak with an experienced family law attorney today!

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