Pennsylvania Grandparents' Rights

Constitutionality Upheld in Hiller v. Fausey

Grandparents' rights in Pennsylvania
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Pennsylvania laws about grandparent visitation are unlike those in any other state. The difference, however, is primarily in the language used.

The Pennsylvania statutes are somewhat confusing because they do not use the term "visitation." Instead they refer to seven different types of custody. Grandparents are, however, mentioned specifically as being eligible for two kinds: "partial physical custody" and "supervised physical custody." These terms actually refer to visitation.

The first type, "partial physical custody," is more liberal. When grandparents win "partial physical custody," they can take grandchildren on outings and trips. On the other hand, when grandparents win "supervised physical custody," the child's custodial parent will decide where contact takes place. 

Winning Custody in the Form of Visitation

Before filing for either type of custody/visitation, grandparents must first establish standing. Pennsylvania is among the states offering protection from lawsuits to intact families. Grandparents may file for visitation only in specific circumstances: if the parent who is their child has died; if the parents are divorced; or if the parents have filed for divorce. 

The law as written gives grandparents standing if the parents have been separated for six months or more. That provision, however, was declared unconstitutional in a 2016 case. Although the wording remains in the statute, the court's finding invalidates the provision. To learn more about this particular decision, see the case of D.P. and B.P. v. G.J.P and A.P discussed below. 

In an additional scenario, if the child resided with the grandparent for twelve months or more and was removed from the grandparent's home by parents, the court may award partial physical custody or supervised physical custody, but suit must be filed within six months after the removal.

In all the situations listed above, the court must consider whether visitation is in the child's best interest and whether visitation with grandparents would interfere with the parent-child relationship. Great-grandparents have the same rights as grandparents. Adoption terminates visitation rights unless the adopting party is a stepparent, grandparent or great-grandparent.

Challenges to Pennsylvania's Law

Like many state statutes, the Pennsylvania ones have been challenged in the wake of the U.S. Supreme Court case of Troxel v. Granville, which upheld the right of parents to make decisions in the best interest of their children. The Pennsylvania statutes survived challenges in 2004's Malone v. Stonebrook, which considered a question of standing, and in 2006's Hiller v. Fausey. In the 2006 case, the Supreme Court of Pennsylvania considered at great length the constitutionality of Pennsylvania's statutes, and decided that they met the standard set out by Troxel v. Granville. The justices were, however, split on the decision. 

The provision protecting children in intact families has also been the subject of judicial scrutiny. In the 2007 case of Helsel v. Puricelli, a grandfather filed for visitation with a grandchild. The grandfather claimed that he had standing because the child's parents were separated for six months. The parents had since reconciled, however, and the court found that the grandfather did not have standing for two reasons. First, the child was living in an intact family. Second, the grandfather was actually a step-grandfather. Helsel v. Puricelli provides evidence that the Pennsylvania judicial system is serious about protecting the rights of parents. 

The 2013 case of L.A.L. v. V.D. concerned a grandmother seeking visitation with a grandchild whose parents did not live together and also had never been married. A lower court had found that grandparents have standing only when the parents had previously been married, citing "the state’s interest in protecting and promoting marriage." An appellate court disagreed and overturned the decision. 

The 2016 case of D.P. and B.P. v. G.J.P and A.P. is considered a blow for grandparents' rights. It involved a couple who were separated but had not filed for divorce. The couple agreed that they did not wish their children to have contact with the paternal grandparents, who then filed for partial physical custody. The trial court found for the parents, stating that a separation of six months did not constitute a compelling reason for the state to override the decision of parents. The case was appealed to the Pennsylvania Supreme Court, which agreed with the ruling of the lower court.

The decision reached in D.P. and B.P. v. G.J.P and A.P. retained the provision allowing grandparents to ask for visitation in the case of divorced parents. The court could not address that circumstance since it did not occur in the case in question. Two justices dissented with the decision. They felt that the court should not strike down the provision in the case of separated parents and retain the provision for divorced parents, as there is little difference in the circumstances. 

The Pennsylvania legislature may rewrite the statutes, or further court action may solidify the position of grandparents. At this point, however, the decision can be seen as further narrowing the opportunities for grandparents to win visitation in Pennsylvania.

More Information

See Pennsylvania statutes concerning child custody. Relevant sections are § 5325 and § 5328 (c).

A publication of the Pennsylvania Institutional Law Project may be helpful to grandparents. Titled The Grandparent's Guide to Custody and Visitation in Pennsylvania, it includes plain-language explanations of Pennsylvania law. It even contains copies of forms that grandparents may need when filing. 

Learn More: A Short History of Grandparents' Rights