Our Pennsylvania child custody attorneys frequently receive inquiries from grandparents about their right to pursue access to their grandchildren in the form of custody or visitation. This issue tends to arise in situations where the paternal or maternal grandparents are denied contact after the parents’ divorce or the death of one of the parents. While the loss of contact with grandchildren can be stressful and heart-wrenching under any circumstances, the situation can be even more difficult when the children have been raised by the grandparents for a period of time. While Pennsylvania does have a statute that permits courts to grant partial custody to grandparents, a January 2016 decision out of the Westmoreland County threatens to jeopardize the rights of grandparents to pursue partial custody over the objections of a parent.
In the Court of Common Pleas for Westmorland County, Judge Smail ruled that a portion of the statute that permits grandparents partial custody rights violates the constitution. The parents in the case of Duane Ponko & Bernadette Ponko v. Gregory Ponko & Angela Ponko had mutually agreed to discontinue access between their minor children and the paternal grandparents. The grandparents filed a custody complaint under 23 Pa. C.S. Section 5325(2) which grants the right to grandparents to seek partial custody if the parents of the minor children have been separated for at least a six month time period.
The court decision found that this provision of the statute violated the constitution by abridging the fundamental right of the parents to rear their children according to their preferences. Further, Judge Smail ruled that the provision also runs counter to the presumption that parents act in the best interest of their children absent parental fitness issues, such as substance abuse, child abuse or neglect, domestic violence, etc.
To the extent that the court found that the statute violated the equal protection and due process rights of the parents under the U.S. Constitution, the outcome was consistent with court decisions in a number of other states. Although it is premature to determine the impact and scope of this case, the ruling could have an impact throughout Pennsylvania. If the decision is affirmed on appeal, the case could signal a significant impairment of the rights of grandparents seeking partial custody of their grandkids.
The Pennsylvania statute is similar to grandparent custody statutes in a number of other states. These laws have been challenged by parents in several states as undermining the fundamental rights of fit parents. Courts throughout the U.S. have split on this issue, so grandparents in Pennsylvania need to be aware of the potential impact of this case if Judge Smail’s decision is upheld.
Our law firm represents grandparents seeking access to their grandkids in a variety of situations. Because this is a complex area of law that is currently in flux, individuals concerned about grandparents’ rights should seek legal advice from an experienced Pennsylvania child custody attorney. We invite you to call Coover & Scheidemann today at 866-596-9384 to schedule a free consultation, so we can explain your legal rights and options.