J-S16014-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.G. AND F.G. : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellants : : v. : : : L.W. Appellee : : No. 1833 MDA 2017
Appeal from the Order Entered September 19, 2017 In the Court of Common Pleas of Bradford County Civil Division at No(s): 2017FC0096
BEFORE: BOWES, J., MURRAY, J., and PLATT*, J.
MEMORANDUM BY BOWES, J.: FILED AUGUST 20, 2018
J.G. (“Father”) appeals by permission the interlocutory order entered on
September 19, 2017, wherein the trial court dismissed his preliminary
objections to the custody complaint filed by L.W., the maternal grandmother
(“Grandmother”), against him and F.G. (“Mother”) seeking partial physical
custody of their now-seven-year-old son, P.M.G.1 We affirm.
As there was no evidentiary hearing or findings of fact issued by the trial
court in this case, we gleaned the factual and procedural history from the trial
court’s opinion and the uncontested assertions leveled in the parties’
pleadings. P.M.G. was born during 2010 of Father’s marriage to F.G.
(“Mother”). However, the marital relationship deteriorated and the parties
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1 Mother is not a party to this appeal.
____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S16014-18
subsequently divorced at some point prior to Grandmother’s initiation of this
custody litigation. In the meantime, Father remarried and exercised sole
physical custody of his son under an informal arrangement with Mother.2
However, he permitted Grandmother to exercise partial physical custody of
P.M.G. on at least one weekend per month.
On March 1, 2017, Grandmother filed a complaint against Mother and
Father seeking partial custody of P.M.G. As it relates to this appeal,
Grandmother did not expressly assert standing under the then-applicable
version of § 5325 of the Child Custody Law, which we set forth in its entirety
infra.3 However, she referenced Mother and Father’s divorce by averring that ____________________________________________
2 Father claims in his brief that he maintains sole legal custody, but the certified record does not corroborate that contention.
3 The General Assembly amended § 5325(2), effective on July 3, 2018, and removed the references to the parents’ marital status. Under the relevant portion of the newly-fashioned provision, grandparents have standing to seek partial physical custody,
(2) where the relationship with the child began either with the consent of a parent of the child or under a court order and where the parents of the child:
(i) have commenced a proceeding for custody; and
(ii) do not agree as to whether the grandparents or great- grandparents should have custody under this section[.]
23 Pa.C.S. § 5325(2), effective July 3, 2018.
The revised section does not include the divorce-related grounds for standing that Grandmother asserts herein. Moreover, to the extent that Grandmother, rather than Mother or Father, initiated the custody litigation, it does not
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Father is currently re-married and that Mother is single. Following the ensuing
custody conciliation conference, the trial court entered an interim order
providing Grandmother partial physical custody one Sunday per month
pending the custody trial. Thereafter, on May 24, 2017, Father filed
preliminary objections to Grandmother’s complaint, wherein he challenged her
standing to pursue any form of physical custody of P.M.G.
On September 19, 2017, the trial court entered an order that overruled
Father’s preliminary objections and certified that the order “involves a
controlling question of law as to which there is substantial ground for
difference of opinion and thus an immediate appeal . . . may materially
advance the ultimate termination of the matter.” Trial Court Order, 9/19/17.
appear that Grandmother would have standing under the new provision had she filed the complaint after July 3, 2018. However, our legislature did not indicate that this amendment would apply retroactively. Significantly, the legislative note to the newly-amended § 5324, which does not apply herein, specifically advised that those changes “shall apply to all custody proceedings irrespective of whether the proceeding was commenced before, on or after the effective date of this section.” 23 Pa.C.S. § 5324 legislative note. A similar note did not accompany the § 5325 amendments, and absent an indication that the General Assembly intended a post hoc application of the amended section, we do not invoke the alterations sua sponte in order divest standing after the fact. See e.g., M.G. v. L.D., 155 A.3d 1083, 1087 n.5 (Pa.Super. 2017) (emphasis added) “while we have re-evaluated a party’s standing following a factual change in circumstances, i.e., the termination of parental rights or adoption, our review of Pennsylvania jurisprudence does not support [an] ad hoc re-evaluation of standing . . . absent a determination that the change in law applied retroactively.”
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Father filed a timely petition for permission to appeal with this Court, which
we granted on December 1, 2017.4
Father presents a single issue for our review: “Does Section 5325(2) of
the Domestic Relations Code . . . violate . . . Father’s fundamental rights as a
parent by conferring standing upon a Grandparent to seek partial [physical]
custody based upon the fact that Father and Mother are divorced?” Father’s
brief at 4. Neither Mother, who has proceeded pro se throughout the litigation,
nor the Pennsylvania Attorney General’s Office filed a brief or offered any
indication of their respective view of Father’s constitutional challenge to the
applicable version of § 5325(2).
We review a trial court’s determination regarding standing for legal error
or an abuse of discretion. Butler v. Illes, 747 A.2d 943, 944 (Pa.Super.
2000). Standing in child custody cases differs from the typical determination
regarding whether a party has a direct interest in the outcome of litigation.
As this Court previously explained,
In the area of child custody, principles of standing have been applied with particular scrupulousness because they serve a dual purpose: not only to protect the interest of the court system by assuring that actions are litigated by appropriate parties, but also to prevent intrusion into the protected domain of the family by those who are merely strangers, however well-meaning.
4 Father complied with Pa.R.A.P 521(a) by providing notice to the Attorney General of Pennsylvania of his facial challenge to the constitutionality of § 5325(2) and a copy of his petition for permission to appeal. The Attorney General’s Office did not respond.
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D.G. v. D.B., 91 A.3d 706, 708 (Pa.Super. 2014) (quoting J.A.L. v. E.P.H.,
682 A.2d 1314, 1318 (Pa.Super. 1996)).
In determining the constitutionality of a statute, our Supreme Court has
stated, “As the constitutionality of [a] statute presents a question of law, our
review is plenary. A statute duly enacted by the General Assembly is
presumed valid and will not be declared unconstitutional unless it clearly,
palpably and plainly violates the Constitution. The party seeking to overcome
the presumption of validity bears a heavy burden of persuasion.” Schmehl
v. Weglin, 927 A.2d 183, 186 (Pa. 2007) (internal quotation marks and
citations omitted). In Commonwealth v. Smith, 732 A.2d 1226 (Pa.Super.
1999), this Court summarized the relevant analytical framework. Collecting
cases, we explained, “All doubts are to be resolved in favor of sustaining the
constitutionality of the legislation.” Id. at 1235 (citing Commonwealth v.
Blystone, 549 A.2d 81, 87 (Pa. 1988)). Indeed, “we are obliged to exercise
every reasonable attempt to vindicate the constitutionality of a statute and
uphold its provisions.” Commonwealth v. Chilcote, 578 A.2d 429, 435
(Pa.Super. 1990). Most importantly, “one of the most firmly established
principles of our law is that the challenging party has a heavy burden of
proving an act unconstitutional [and] [i]n order for an act to be declared
unconstitutional, the challenging party must prove the act clearly, palpably
and plainly violates the constitution.” Commonwealth v. Barud, 681 A.2d
162, 165 (Pa. 1996) (internal quotation marks omitted).
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The Child Custody Law in effect at the time Grandmother initiated this
litigation provided grandparents standing for partial physical custody and
supervised physical custody as follows:
In addition to situations set forth in section 5324 (relating to standing for any form of physical custody or legal custody), grandparents and great-grandparents may file an action under this chapter 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 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.
23 Pa.C.S. § 53255 (emphasis added).
In D.P. v. G.J.P., 146 A.3d 204 (Pa. 2016), our Supreme Court
addressed a due process challenge to § 5325(2) and concluded that the
portion of paragraph (2) that related to married parents who have been
separated for at least six months was unconstitutional because it
impermissibly infringed upon a presumptively-fit parent’s fundamental right
5 The statute also grants standing to great-grandparents; however, for ease of discussion, we refer only to grandparents.
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to make decisions concerning the care, custody, and control of his or her
children. As it relates to the issue at bar, we note that the parents in D.P.
never initiated divorce or custody litigation, and they mutually agreed to end
paternal grandparents’ custody.
The High Court began by outlining the constitutional constraints on
statutes that provide standing to grandparents to participate in child custody
proceedings.
As reflected in our cases and in Troxel [v. Granville, 530 U.S. 57 (2000)], Grandparent visitation and custody statutes authorize state action and, as such, they are subject to constitutional limitations. There is no dispute that Section 5325 burdens the right of parents to make decisions concerning the care, custody, and control of their children; that such right is a fundamental one, and that, as such, it is protected by the Fourteenth Amendment’s due-process and equal-protection guarantees. In light of these factors there is also no disagreement that, to survive a due process or equal protection challenge, Section 5325 must satisfy the constitutional standard known as strict scrutiny.
D.P., supra at 210 (footnotes, some citations, and parenthetical information
omitted). The Court continued,
The basic features of strict scrutiny, relating to whether the governmental action is narrowly tailored to a compelling state interest, see Hiller [v. Fausey, 904 A.2d 875, 886 (Pa. 2006)], are well established. As expressed in Schmehl, the inquiries per the Due Process and Equal Protection Clauses are distinct but overlapping: pursuant to the former, the government’s infringement on fundamental rights must be necessary to advance a compelling state interest, whereas under the latter it is the classification inherent in the statute which must be necessary to achieve that interest.
Broadly speaking, the state, acting pursuant to its parens patriae power, has a compelling interest in safeguarding children from
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various kinds of physical and emotional harm and promoting their wellbeing. That aim has been invoked to accomplish certain objectives where appropriate, such as involuntarily terminating a parent’s rights and providing a child with a permanent home. The component of the government’s parens patriae responsibility implicated here is its interest in ensuring that children are not deprived of beneficial relationships with their grandparents.
Id. at 210-211 (citations and footnotes omitted).
Thus, as outlined by our High Court, there are presumptions that
parents act in a child’s best interest and that a fit parent has a fundamental
right to raise his or her children without governmental interference.
Accordingly, to be constitutional, the state’s interest in interfering with that
right must satisfy strict scrutiny as it relates to due process, i.e., 1) that the
state’s interest in upholding a child’s beneficial relationship with his or her
grandparents is compelling, and 2) that the grandparent standing provision is
narrowly tailored to effectuate that interest.
In finding that the portion of the statute granting standing to the
grandparents of children whose parents were separated for at least six months
was unconstitutional, the High Court confirmed that the government had a
compelling interest in protecting the health and emotional welfare of children
under its authority as parens patriae. Id. at 211. However, applying the
constitutional constructs outlined in Schmehl, the Court determined that the
statute was not narrowly tailored to the desired interest.
In Schmehl, the Supreme Court addressed the question of equal
protection in the context of divorced parents who disagreed as to whether the
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grandparents should exercise periods of partial custody. Examining the
predecessor to § 5325(2), the Schmehl Court upheld the constitutionality of
a classification within a statute that conferred standing to grandparents where
parents separated or commenced and continued divorce proceedings.
Schmehl, supra at 189-190; 23 Pa.C.S. § 5312 (repealed effective January
23, 2011). In that case, the children’s parents fashioned a custody
arrangement prior to divorcing. Five months after the divorce, the mother
objected to the paternal grandparents exercising periods of partial custody.
The paternal grandparents initiated custody litigation under § 5312, and the
mother countered that the section violated her due process and equal
protection rights under the Fourteenth Amendment because, inter alia, it
classified non-intact families and treated them differently. The trial court
found § 5312 unconstitutional and dismissed the custody complaint
summarily.
On appeal, the High Court determined that the classification was
intended to alleviate the harmful circumstances that arise when “the child’s
family environment has been disturbed.” Id. at 188. The Court stressed that
the classification was not simply “antagonism against non-intact families.” Id.
It recognized the state’s compelling interest in upholding the child’s wellbeing,
identified a heightened risk of harm that flows from the dissolution of the
marriage, and concluded that the statute was narrowly tailored to that
breakdown in that it provided standing to grandparents for visitation or partial
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custody only in limited circumstances. The Court explained that, based upon
the differences between the risks of harm to children of married and divorced
parents, the disparate classification was essential to the child’s wellbeing.
Accordingly, the Schmehl Court resolved, “[r]ecognizing the parens patriae
interest in the child’s wellbeing and heightened risk of harm arising from the
breakdown of marriage, the classification under Section 5312 is directly and
narrowly tailored to such breakdown, and only provides for visitation or partial
custody to a grandparent in limited circumstances[.]” Id. at 189.
Focusing on the overlapping inquires implicated under the Due Process
and Equal Protection Clauses, the D.P. Court invoked the Schmehl Court’s
determination that the statutory classification of non-intact families was
justified to effectuate the state’s parens patriae interest in protecting children
from harm under the prior statute and whether the means were narrowly
tailored. The High Court applied the relevant portion of the Schmehl Court’s
equal protection analysis to determine that the infringement posed by
§ 5325(2) on fit parents who have separated for at least six months could not
satisfy strict scrutiny under the due process analysis. The D.P. Court
reasoned:
[W]e conclude that the fact of a parental separation for six months or more does not render that state’s parens patriae interest sufficiently pressing to justify potentially disturbing the decision of presumptively fit parents concerning the individuals with whom their minor children should associate. It follows that the infringement upon parental rights worked by Section 5325 is not narrowly tailored to a compelling governmental interest, as the provision could have been drafted to exclude separation as an
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independent basis for grandparent standing. Consequently, Section 5325 cannot survive strict scrutiny and, as such, it violates the fundamental rights of parents safeguarded by the Due Process Clause.
D.P., supra at 215-216. (citations and footnote omitted).
Significantly, however, the High Court declined to address the second
portion of paragraph (2) that relates to parents who have commenced and
continued a proceeding to dissolve their marriage, i.e., divorce. It explained,
As noted, paragraphs (1) and (3) of Section 5325, as well as the second half of paragraph (2), set out separate and distinct bases for grandparent standing that do not depend on the first half of paragraph (2), that is, on the parents having been separated for at least six months. Since these are not “essentially and inseparably connected with” the separation provision, they are capable of execution and may continue in force absent the first half of paragraph (2). Such provisions, moreover, are neither implicated by the underlying facts nor challenged by the parties.
Id. at 217. Deflecting the dissenting justices entreaty to address the
constitutionality of the remainder of paragraph (2), which we address infra,
the Court reasoned,
As concerns the second half of paragraph (2) in particular, invalidating it per the suggestion forwarded by Justices Baer and Wecht would require reaching beyond the bounds of this dispute and declaring Section 5325 unconstitutional more broadly than is necessary to resolve the appeal. It would be premature—and thus improper—to make a wide-reaching constitutional declaration along these lines in the present context in which no challenge to the standing requirements relative to divorced parents has been raised or briefed. We thus differ with any suggestion that we are somehow “avoiding” this issue.
Id. (citation omitted).
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Justice Baer and Justice Wecht both filed a concurring and dissenting
opinion in which they separately concluded that the entire statute was
unconstitutional. Id. at 217-221. Justice Baer found that the remaining
portion of § 5325(2) was “not narrowly tailored in that it allows for
grandparents to force parents into court to litigate their custody decisions
without pleading (and proving) the harm to the child necessary to justify
infringement on a parent’s fundamental right.” Id. at 219.
Justice Wecht framed the question as a potential equal protection
violation and argued that marital status is irrelevant as to when courts should
permit judicial intrusion upon the fundamental right of a fit parent. Justice
Wecht opined,
Marital status – whether married, separated, or divorced— is not simply a crude or rough proxy for parental fitness. It is no proxy at all. . . . To maintain any portion of Section 5325(2) is to deny social reality, to consign roughly half the population to second-class status, and to stigmatize these citizens and their children. No portion of Section 5325(2) comports with the U.S. Constitution’s due process and equal protection clauses, nor with Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).
Id. at 221.
Father’s argument blends the respective positions of both dissenting
Justices. The crux of Father’s contention is that the D.P. Court’s analysis
regarding the unconstitutionality of the standing provision in relation to
separated parents applies equally to parents who have divorced. He contends
that Section 5325 burdens parents’ fundamental liberty interest in raising their
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children without satisfying the requirements of strict scrutiny, i.e., the
governmental action is not narrowly tailored to a compelling state interest.
He continues that, since he is presumed to be a fit parent, the state cannot
exercise its authority as parens patriae unless there is an indication that he is
not acting in the child’s best interests. He reasons that where that
fundamental indication of unfitness is absent, the state’s interest in permitting
a grandparent to interlope on his right to decide with whom P.M.G. may
associate is diminished. For the following reasons, we disagree.
At the outset, we observe that, although both of the dissenting opinions
provide persuasive rationales for extending the majority’s reasoning to
divorced parents and finding the entirety of § 5325(2) unconstitutional,
thereby reversing Schmehl expressly, neither Justice Baer nor Justice Wecht
garnered a majority of the votes. Hence, their well-reasoned perspectives did
not prevail, and to the extent that Schmehl is consistent with the majority’s
discussion in D.P., it remains authoritative precedent.
Moreover, notwithstanding the ephemeral attraction of Justice Wecht’s
position that marital status is an improper measure of constitutionality, it is
obvious that the D.P. Court considered additional factors in deciding to
invalidate the first portion in § 5325(2). Most importantly, the Court
considered the fact that the parents were unified in their opposition to the
grandparents’ custody rights and it balanced that joint decision against the
state’s infringement on the parents’ fundamental rights. See D.P., supra at
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215 (quoting Hawk v. Hawk, 855 S.W.2d 573, 557 (Tenn. 1993) (“[T]he trial
court’s interference with the united decision of admittedly good parents
represents a virtually unprecedented intrusion into a protected sphere of
family life.”)).
Significantly, unlike the facts of the case at bar, D.P. concerned a
situation where grandparents based their attempt to undermine the married
parents’ unified decision on the sole fact that the parents had remained
separated for at least six months. As it related to that dynamic, the High
Court accurately recognized that the ability of the parents to reach a joint
decision on such an important issue as third-party custody was evidence that
a basis did not exist to “disturb the ordinary presumption . . . that fit parents
act in their children’s best interests.” Id. at 207. Phrased differently, the
Court later reiterated, “where there is no reason to believe presumptively fit
parents are not acting in their children’s best interests, the government’s
interest in allowing a third party to supplant their decisions is diminished.” Id.
at 214.
Conversely, the Court observed that where parents are incapable of
reaching a unified agreement regarding the involvement of grandparents, the
presumption that they both are acting in their children’s best interests is
reduced. Id. at 212 (“The breakdown in unified parental decision making [is]
more severe in Schmehl than it is . . . where [p]arents . . . are able to co-
parent in agreement.”). Indeed, as the D.P. Court recognized, in this
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situation, the state’s interest in preventing potential harm due to the severing
of the grandparent-child relationship is heightened.
Instantly, no agreement exists between Mother and Father in relation to
whether Grandmother should exercise partial physical custody of P.M.G. In
this vein, as opposed to the facts of D.P., the present case aligns with
Schmehl, which addressed the identical scenario where divorced parents did
not agree to permit grandparent custody.
Further, as it relates to the significance of the fact that Mother and
Father are divorced, D.P. highlighted factors that distinguished the portion of
§ 5325(2) relating to divorce from the unconstitutional provision concerning
mere separation. Notably, as to the latter scenario, the Court referenced prior
decisions that acknowledged the existence of empirical studies reflecting
objective evidence of harm caused to children of divorce, but it indicated that
similar data did not exist in relation to separation. See D.P. at 211-212 citing
Schmehl, supra at 189 n.9 (scholarship addressing effects of divorce on
children) and at 188–89 (prior judicial expressions regarding impact of divorce
on families). The D.P. Court explained, “we cannot assume that any empirical
studies relating to the effects of divorce carry over to mere separation.” Id.
at 212. Hence, the D.P. Court’s analysis specifically recognized a more
compelling state interest in protecting children involved in divorce proceedings
as opposed to children of married parents who are merely separated. Id. at
215 (“Although separation may involve a disruption of the nuclear family unit,
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the children are often shielded from having to participate in court proceedings
and are, likewise, free from having to assimilate the knowledge that the
government is now involved in their family life.”).
In addition, D.P. highlighted the increased level of government
involvement in divorce proceedings as opposed to separations. It noted that,
since separations do not always lead to divorce and the collateral economic
and custodial consequences that are inherent in the dissolution of a marriage,
courts are not necessarily involved in the family affairs of separated parents.
Indeed, unlike families of divorced parents, non-intact families with separated
parents may avoid contact with the court’s entirely. Accordingly, as previously
mentioned, the children in these families are typically shielded from the harms
associated with the dissolution of the marriage. Id. at 212.
In contrast, by filing for divorce, parents expressly request the court’s
involvement, and create the attendant harm to children that is supported by
empirical data. As government involvement and oversight is more significant
where divorce proceedings have been commenced than where the parents
merely separate, the governmental interest is greater and implicates a
heightened state interest in protecting children of divorce proceedings as
opposed to children of separation. Thus, the D.P. Court’s strict scrutiny
analysis relating to the constitutional infirmity of the portion of § 5325 relating
to separated parents does not align with this divorce case as easily as Father
contends.
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In sum, Father did not establish that the statute “clearly, palpably and
plainly violates the constitution.” Barud, supra at 165. As D.P.
acknowledged, significant differences exist between grandparent standing
based upon parental separation of at least six months and standing based
upon the parents’ divorce, including empirical evidence of harm, which has
not been similarly documented in children of separation. Likewise, divorced
parents have requested court involvement and oversight in their family’s lives
where separated parents did not. Finally, although unrelated to the
divorce/separation dichotomy, D.P. recognized that the state’s interest in
protecting children by promoting the grandparent-child relationship is greater
where, as here, the parents are unable to make a unified decision as to the
nature and extent of the child’s relationship with the grandparent.
Guided by the premise that the statute is presumptively constitutional,
and the D.P. Court’s express refusal to invalidate § 5325(2) in its entirety or
overturn its earlier reasoning in Schmehl that the state has a heightened
state interest in protecting children of divorce, we uphold the constitutionality
of the portion of § 5325(2) that granted standing to grandparents in cases
where parents commenced and continued a proceeding to dissolve their
marriage. Stated plainly, insofar as the statute did not disturb the decision of
presumptively fit parents unless they have invited state action by initiating
divorce proceedings, the provision was narrowly tailored to the compelling
governmental interest of protecting children of divorce.
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Order affirmed.
Judge Murray and Judge Platt concur in the result.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 08/20/2018
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