Prior to September 9, 2016, grandparents in Pennsylvania were able to seek partial physical custody or supervised custody of their grandchildren in the following situations:

  1. If a parent of the child is deceased;
  2. If the parents of the child were separated for a period of at least six months or had commenced and continued a proceeding to dissolve their marriage; or
  3. If the child, 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 was removed from the home by the parents, and the grandparents filed a complaint within six months of the child being removed from the home.

These provisions are codified in Pennsylvania child custody law, specifically 23 Pa.C.S. § 5325. However, on Sept. 9, 2016, the Supreme Court of Pennsylvania decided a case that invalidated a provision of the above-discussed statute, making it more difficult for grandparents to seek physical custody of their grandchildren.

In October 2012 G.J.P. and A.P (the parents) separated, but did not file a complaint in divorce. While living separately, the parents were able to co-parent effectively and, as a result, they did not seek the court's intervention. In December 2012, the parents mutually agreed to discontinue their children's contact with their paternal grandparents, D.P. and B.P. In October 2014, the grandparents, relying on the above-discussed statute, filed a complaint in custody seeking partial physical custody of the children. The complaint specifically relied upon the section of 23 Pa.C.S. 5325 that allowed grandparents to seek partial physical custody of their grandchildren when their parents have been "separated for a period of at least six months."

In November 2014, the court issued a custody order granting shared legal custody to the parents and directing that the grandparents continue to have no contact with the children. The parents filed a motion to dismiss the grandparents' complaint, alleging that Section 5325(2) infringes upon their Fourteenth Amendment rights. The court granted the parents' motion and dismissed the grandparents' complaint, ruling that Section 5325(2) infringes on the parents' fundamental liberty interest in raising their children as they see fit.

The grandparents appealed to the Pennsylvania Supreme Court and, in summary, argued that the commonwealth, having an interest in protecting children's health and emotional well-being, tailored Section 5325(2) to advance that interest by favoring relationships with grandparents only after parents have been separated for six months. The parents argued that their separation did not inherently put their children at risk or harm and, further, that simply pointing to the "blood relationship" between third parties is not enough to justify intervention by a third party or the court.

The Pennsylvania Supreme Court agreed with the parents and found Section 5325(2) infringed on the parents' constitutional right to raise their children as they see fit. Specifically, the court stated that the mere fact that any parents have been separated for six months or more "does not justify potentially disturbing the decision of presumptively fit parents concerning the individuals with whom their minor children should associate."

It must be emphasized that this decision does not disturb the balance of 23 Pa.C.S. § 5325. Presently, grandparents may still seek partial physical custody or supervised custody of their grandchild where the child's parent is deceased, the child's parents have commenced divorce proceedings or where the child resided with the grandparents for a period of at least 12 consecutive months, was removed by the parents and the grandparent filed within six months of the child's removal from their home.

Here at Williams Family Law, P.C., we stay informed and ready to answer your questions regarding domestic relations matters including divorce, child custody, and child support. Call our office at 215-340-2207 to set up some time to discuss your needs with any of our experienced and knowledgeable Bucks County family law attorneys.