Recently, the Pennsylvania Supreme Court rendered a decision that will significantly impact grandparents attempting to obtain custody of their grandchildren during a marital separation.

Grandparents Are Raising Their Grandchildren Now More Than Ever

Recent statistics show that nearly three million grandparents in America are raising their grandchildren. This is up approximately seven percent from 2009. There are several reasons cited for this increase, including

• Military deployment
• A growing national opiate epidemic
• An increase in the number of women incarcerated

These instances force grandparents to take on the role of parents again, even though it may not be feasible. Of the three million grandparents raising grandchildren, nearly 20 percent have incomes that fall below the poverty line. Esme Fuller-Thomson, a professor of social work at the University of Toronto, says, “People who step forward, step forward because there is a crisis in their family and apparently don’t take into account their own limitations.”

Supreme Court Ruling

The Pennsylvania Supreme Court recently heard D.P and B.P v. G.J.P and A.P. and overruled a statutory provision. The provision, Section 5325, had previously given grandparents the ability to seek custody based solely on the separation of the parents. However, the Supreme Court ruled that this was unconstitutional because the provision “improperly presumed the parents’ lack of fitness due solely to their separation.”

D.P and B.P v. G.J.P and A.P were directly appealed to the Supreme Court after a Common Pleas Court order. The case involved two parents who had separated after six years of marriage but had never formally begun the process of divorce. They amicably reached custody terms regarding their three children on their own and had proceeded to live under these terms. The couple was of the mutual understanding that they did not want their children to have contact with their paternal grandparents. The paternal grandparents then sued for partial custody of the children.

The Supreme Court ruled that, excluding special circumstances, grandparents do not have the legal right to sue for custody of their grandchildren. The court also determined that grandparents do not have the legal right to intervene in custody proceedings simply because the parents have been separated for more than six months.

Fallout From The Ruling

Only time will tell how the Pennsylvania Supreme Court’s ruling will impact cases, both of past and future. It is possible that current grandparent custody cases could be reexamined. It is also possible that the grandparent custody statute currently in place will need to be amended. The statute, found in Section 5235, Subsection 2 states, “…grandparents and great-grandparents may file an action under this chapter for partial physical custody or supervised physical custody in situations 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.”

It will be interesting to see if Pennsylvania’s General Assembly will act over the next few years to address the portions that were ruled unconstitutional by the Supreme Court.