D.P. and B.P., Aplts. v. G.J.P. and A.P.

[J-53-2016]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.

D.P. AND B.P., HIS WIFE, : No. 25 WAP 2015
:
Appellants : Appeal from the Order of the Court of
: Common Pleas of Westmoreland
v. : County dated September 8, 2015 at No.
: 1750 of 2014-D.
:
G.J.P. AND A.P., :
:
Appellees : ARGUED: April 5, 2016

OPINION

CHIEF JUSTICE SAYLOR DECIDED: SEPTEMBER 9, 2016

This is a direct appeal from a common pleas court order invalidating a statutory

provision giving grandparents standing to seek custody of their minor grandchildren.

The question presented is whether the parents’ fundamental rights are violated by the

conferral of standing based solely on a parental separation lasting at least six months.

The material facts are uncontested. Appellees G.J.P. and A.P. (“Parents”)

married in 2006 and had three children, all of whom are still minors. Parents separated

in October 2012, albeit they did not initiate divorce proceedings. Because they were in

agreement as to custody matters while living separately, Parents never sought court

involvement and no custody order was issued prior to this litigation. In December 2012,

Parents mutually agreed that all contact between the children and their paternal

grandparents, appellants D.P. and B.P. (“Grandparents”), should be discontinued.
 In October 2014, Grandparents commenced this action by filing a complaint in

the county court naming Parents as defendants and seeking partial physical custody of

the minor children. See 23 Pa.C.S. §5322(a) (defining partial physical custody as

physical custody for less than a majority of the time). Grandparents did not suggest that

Parents were unfit or that the children were in any danger. As their basis for standing

they relied on Section 5325 of the Domestic Relations Code (the “Code”),1 which states:

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 have 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. §5325 (emphasis added).2

1
The Domestic Relations Code comprises Title 23 of the Pennsylvania Consolidated
Statutes. Section 5325 is located in Chapter 53, which governs child custody disputes.
See 23 Pa.C.S. §5321. The most recent version of the chapter was enacted in 2010.
See Act of Nov. 23, 2010, P.L. 1106, No. 112, Section 2 (as amended 53 Pa.C.S.
§§5321-5340). That legislation repealed and replaced the prior version, enacted in
1985, which had been codified at Sections 5301 through 5315.

2
Section 5324, referred to in the initial portion of Section 5325 above, gives
grandparents standing to seek custody in various situations not implicated here, such as
where a child has been adjudicated dependent or is at substantial risk of harm from the
parents. See 23 Pa.C.S. §5324(3).

[J-53-2016] - 2
 In November 2014, the court issued an interim custody order granting shared

legal custody to Parents and directing that Grandparents continue to have no contact

with the children. Thereafter, Parents filed a motion to dismiss, alleging that the portion

of paragraph (2) of Section 5325 emphasized above violates their Fourteenth

Amendment rights to due process and equal protection. Grandparents submitted a

responsive pleading observing it was undisputed that Parents had been separated for at

least six months.

After briefing and oral argument, the court issued an order granting Parents’

motion and dismissing the complaint. In an accompanying opinion, the court agreed

with Parents that Section 5325(2) violates their constitutional rights. The court

recognized, initially, that Parents have a fundamental liberty interest in raising their

children as they see fit. See D.P. v. G.J.P., No. 1750 of 2014-D, slip op. at 2 (C.P.

Westmoreland Sept. 8, 2015) (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct.

2054, 2060 (2000) (plurality)). Accordingly, the court reasoned, because Section

5325(2) substantially burdens that interest, it can only be upheld if it survives strict

scrutiny – meaning, it must be narrowly tailored to further a compelling government

interest. See id. at 4.

Applying strict scrutiny, the court specified that the state has a compelling

interest, exercised through its parens patriae powers, in protecting the welfare of

children who are at risk of harm. In the court’s view, however, Section 5325(2) does not

embody a narrowly-tailored means of serving that interest because it improperly

assumes, based solely on the parents’ separated status, that their joint decisions

regarding the raising of their children are infected by a degree of unfitness. See id. at 6

& n.3. By contrast, the court pointed to paragraphs (1) and (3) as reflecting more

persuasive circumstances to allow for grandparent standing. See id. at 5.

[J-53-2016] - 3
 In terms of precedent, the common pleas court recited that, in Hiller v. Fausey,

588 Pa. 342, 904 A.2d 875 (2006), and Schmehl v. Wegelin, 592 Pa. 581, 927 A.2d 183

(2007), this Court sustained the application of grandparent-standing provisions

contained in the prior version of Chapter 53. Hiller approved standing in favor of a

grandparent whose child was deceased, see Hiller, 588 Pa. at 365-66, 904 A.2d at 890

(upholding 23 Pa.C.S. §5311 (repealed)), while Schmehl endorsed standing where the

parents were divorced and also disagreed concerning the grandparents’ partial-custody

request. See Schmehl, 592 Pa. at 594, 927 A.2d at 190 (sustaining an application of 23

Pa.C.S. §5312 (repealed)). The court distinguished those situations, noting that, here,

Parents had jointly decided that their children should have no contact with Grandparents

– and suggesting more generally that when any two parents who are merely separated

are in agreement concerning the individuals with whom their children should or should

not associate, there is no adequate basis to disturb the ordinary presumption, credited

by the United States Supreme Court, that fit parents act in their children’s best interests.

See D.P., No. 1750 of 2014-D, slip op. at 9 (quoting Troxel, 530 U.S. at 68, 120 S. Ct. at

2061).

As to this latter point, the court referred to Herron v. Seizak, 321 Pa. Super. 466,

468 A.2d 803 (1983), and Helsel v. Puricelli, 927 A.2d 252 (Pa. Super. 2007), both of

which involved married parents who agreed that grandparents should not be given

visitation or custody. See D.P., No. 1750 of 2014-D, slip op. at 9-10. Although Herron

and Helsel dealt with intact families, the county court interpreted the opinions as

primarily establishing that courts should not upset a unified decision of the child’s

parents at the behest of a third party. See id. at 10. Circling back to the equal

protection facet of Parents’ argument, the court ultimately held that, inasmuch as the

law presumes married parents living together are able to co-parent their children without

[J-53-2016] - 4
judicial interference, there was no constitutionally sound basis to support a classification

whereby married parents who are separated should be treated differently. See id. at

10-11. In this regard, the court indicated that the statute reflects an inappropriate

“implicit presumption of unfitness” attaching to separated parents solely on account of

their separated status. Id. at 11.

On direct appeal to this Court,3 Grandparents acknowledge that Parents have a

fundamental right to direct the care, custody, and control of their children, thus triggering

strict scrutiny under the Due Process Clause. They agree with the common pleas court

that the state interest presently implicated, protecting children’s health and emotional

wellbeing, is a compelling one. Grandparents contend, however, that the statute is

narrowly drawn to advance that interest because it favors relationships specifically with

grandparents, and only when the parents have been separated for six months.

Grandparents maintain that this materially distinguishes the statute from the one

deemed constitutionally problematic in Troxel – which allowed standing in favor of any

person at any time, see WASH. REV. CODE §26.10.160(3) – particularly in view of the

elevated importance extended-family ties have assumed in recent years due to the

breakdown of the nuclear family.

Grandparents observe that Hiller pointed to this aspect of the former Section

2311 as being salient in light of the 1985 enactment’s underlying legislative policy to

promote “continuing contact with . . . grandparents when a parent is deceased, divorced

3
Grandparents initially appealed to the Superior Court, where the matter was docketed
at No. 1577 WDA 2015. The intermediate court transferred the appeal to this Court,
which has exclusive appellate jurisdiction of common pleas court decisions holding that
a statute is unconstitutional. See 42 Pa.C.S. §722(7); see also Pa.R.A.P. 751 (relating
to the transfer of erroneously-filed cases). While the matter was pending in the Superior
Court, Parents notified the Attorney General that a statute’s constitutionality had been
drawn into question. See Pa.R.A.P. 521(a) (requiring such notice). However, the
Attorney General has elected not to participate.

[J-53-2016] - 5
or separated.” See Brief for Appellants at 11 (citing Hiller, 588 Pa. at 360, 904 A.2d at

886, and quoting 23 Pa.C.S. §5301 (repealed)).4 Grandparents indicate, moreover, that

Hiller approved the statutory scheme involved in that dispute because it required that,

before grandparent visitation could be ordered, the court take into account whether such

visitation would interfere with the parent-child relationship, whether a strong bond

between the child and grandparent previously existed, and the child’s best interests

generally. See id. at 12 (citing Hiller, 588 Pa. at 361, 904 A.2d at 887). Although

Grandparents do not say so expressly, it is implicit in their argument that they believe

the same analysis and outcome should obtain under the Due Process Clause in relation

to Section 5325.

As for equal protection, Grandparents rely largely on Schmehl, which rejected an

equal protection challenge to grandparent standing under Section 5312.5 They maintain

that, because that section contained language which is similar to Section 5325(2), this

Court should apply the same constitutional principles here as it did in Schmehl. In

terms of the validity of the classification at issue – parents who co-parent while living

4
Section 5301 was repealed by the 2010 enactment, see supra note 1, and there is no
expression of legislative policy in the present version of Chapter 53.

5
Section 5312 stated:

In all proceedings for dissolution, subsequent to the commencement of the
proceeding and continuing thereafter or when parents have been
separated for six months or more, the court may, upon application of the
parent or grandparent of a party, grant reasonable partial custody or
visitation rights, or both, to the unmarried child if it finds that visitation
rights or partial custody, or both, would be in the best interest of the child
and would not interfere with the parent-child relationship. The court shall
consider the amount of personal contact between the parents or
grandparents of the party and the child prior to the application.

23 Pa.C.S. §5312 (repealed).

[J-53-2016] - 6
separately, versus parents who co-parent and live together – Grandparents point out,

initially, that Schmehl expounded upon the analytical overlap between due-process and

equal-protection principles in a context involving the protection of children’s health and

emotional welfare, and they again refer to the breakdown of the nuclear family as an

important factor justifying the General Assembly’s decision to allow grandparents to

petition for custody when parents have separated. See Brief for Appellants at 13-15.

Parents’ argument largely tracks the common pleas court’s analysis with regard

to both the due process and equal protection inquiries. Briefly, they note it is

established law that, because their parental rights are fundamental, the Due Process

Clause accords those rights heightened protection.6 Parents counter Grandparents’

position that the statute is narrowly tailored, arguing: (a) there is no factual basis to

presume based solely on a couple’s separation that their children are at greater risk of

harm; and (b) when presumptively fit parents agree that their children should not

develop relationships with specific third parties, simply pointing to the “blood

relationship” of those third parties is insufficient to justify an invocation of the state’s

parens patriae interest. Brief for Appellees at 28.

Addressing the topic of potential harm to the children, Parents offer that, in pre-

Hiller cases where the state exercised its parens patriae authority, the fitness of the

parent was in question due to abuse, neglect, delinquency, or a failure to perform

parental duties. See id. at 29 (citing Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512

6
Parents indicate there is a good reason to consider such rights fundamental, not only
because of the traditional right of parents to “establish a home and bring up children,”
Brief for Appellees at 15 (quoting Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625,
626 (1923)), but because parents fulfill a role which the government cannot. See id. at
16 (citing Prince v. Massachusetts, 321 U.S. 158, 166, 64 S. Ct. 438, 442 (1944) (“It is
cardinal with us that the custody, care and nurture of the child reside first in the parents,
whose primary function and freedom include preparation for obligations the state can
neither supply nor hinder.”)).

[J-53-2016] - 7
(1980) (affirming an award of custody to the maternal grandmother over the father’s

objections where the child was eleven years old and had lived exclusively with the

grandmother for more than nine years), In re Adoption of J.J., 511 Pa. 590, 515 A.2d

883 (1986) (approving the involuntary termination of parental rights where the father

demonstrated a fixed inability to perform parental duties), and In re Adoption of C.A.E.,

516 Pa. 419, 532 A.2d 802 (1987) (same where a prematurely-born infant needed

ongoing parent-assisted medical intervention, but the mother was unable to provide

such care and she had previously deprived the infant of care)). Differentiating the

present situation, they argue that separation does not equate to abuse, neglect, or an

inability to perform parental duties. As for Hiller itself, Parents read the holding as

resting on an understanding that the death of a parent would naturally tend to harm a

child’s wellbeing, and that such harm would be magnified if the child also lost contact

with a grandparent with whom he or she had a pre-existing beneficial relationship. See

id. at 30 (quoting Hiller, 588 Pa. at 366 n.24, 904 A.2d at 890 n.24).

Insofar as equal protection is concerned, Parents recognize that Schmehl is the

decision most closely related to the present scenario and that the Court upheld the

classification drawn by former Section 5312. Parents do not argue that Schmehl was

wrongly decided or that it should be overruled. They do contend, however, that the

case is distinguishable because: it did not involve a joint decision by both parents, but

rather, a situation in which a divorced father supported his parents’ request for visitation;

and the parents were already subject to a custody order. By contrast, Parents indicate

they were never subject to a custody order before Grandparents filed their complaint,

nor do they disagree on matters of custody or visitation. Further, they assert that no

reason has been alleged why they are less capable than non-separated parents of

making appropriate decisions about their children’s welfare.

[J-53-2016] - 8
 Parents suggest, as well, that many couples who live together lead dysfunctional

homes and make poor parenting decisions, all of which evidences the arbitrariness of

Section 5325’s implicit assumption that separated parents are less fit as parents than

those who live under the same roof. Consequently, Parents propose that the legislative

classification which rests on that assumption does little to advance the state’s interest in

protecting children or promoting their welfare. See id. at 35-36. Finally, Parents draw

support for their position from a responsive expression in Schmehl in which former Chief

Justice Cappy opined that separation and divorce are not valid proxies for ascertaining

which parents might cause harm to their children. See id. at 36-37 (citing Schmehl, 592

Pa. at 596-97, 927 A.2d at 192 (Cappy, C.J., dissenting)).

As reflected in our cases and in Troxel, Grandparent visitation and custody

statutes authorize state action and, as such, they are subject to constitutional

limitations. Accord, e.g., In re Herbst, 971 P.2d 395, 398-99 (Okla. 1998) (explaining

that, “mandating the introduction of a third party, even a grandparent, into a family unit

is state action limiting the parents’ liberty”).7 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, see Troxel, 530 U.S. at

65-66, 120 S. Ct. at 2060-61 (discussing cases); Hiller, 588 Pa. at 358, 904 A.2d at 885;

7
Visitation and custody are distinct concepts. See Hiller, 588 Pa. at 346 n.4, 904 A.2d
at 878 n.4. Visitation pertains to the right to visit a child but does not include the ability
to remove the child from the custodial parent’s control. See 23 Pa.C.S. §5302
(repealed). Physical custody refers to the “physical possession and control of a child.”
23 Pa.C.S. §5322(a). As noted, partial physical custody is defined as physical custody
for less than a majority of the time. See id. Chapter 53 as enacted in 1985 regulated
visitation and custody, whereas the 2010 version only governs custody. In our present
discussion, we mention custody and visitation because some of the authority from other
jurisdictions relates to visitation and the constitutional analysis, for present purposes, is
materially identical.

[J-53-2016] - 9
and that, as such, it is protected by the Fourteenth Amendment’s due-process and

equal-protection guarantees. See U.S. CONST. amend. XIV, §1 (forbidding states from

depriving “any person of life, liberty, or property, without due process of law,” or from

denying to any person within their jurisdiction “the equal protection of the laws”). 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.

The basic features of strict scrutiny, relating to whether the governmental action

is narrowly tailored to a compelling state interest, see Hiller, 588 Pa. at 359, 904 A.2d at

885-86, 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. See Schmehl,

592 Pa. at 589, 927 A.2d at 187.8

Broadly speaking, the state, acting pursuant to its parens patriae power, has a

compelling interest in safeguarding children from various kinds of physical and

emotional harm and promoting their wellbeing.9 See Hiller, 588 Pa. at 359, 904 A.2d at

8
Strict scrutiny is separately triggered under the Equal Protection Clause if the
legislation employs a suspect classification. See Johnson v. California, 543 U.S. 499,
508, 125 S. Ct. 1141, 1148 (2005). See generally Small v. Horn, 554 Pa. 600, 615
n.14, 722 A.2d 664, 672 n.14 (1998) (noting that suspect classifications include race,
national origin, and, for purposes of state law, alienage). That aspect of equal
protection jurisprudence is not presently implicated.

9
“Parens patriae, literally ‘parent of the country,’ refers . . . to the role of the state as
sovereign and guardian of persons under a legal disability to act for themselves such as
juveniles, the insane, or the unknown.” West Virginia v. Chas. Pfizer & Co., 440 F.2d
1079, 1089 (2d Cir. 1971).

[J-53-2016] - 10
886 (“The compelling state interest at issue in this case is the state’s longstanding

interest in protecting the health and emotional welfare of children.”). 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. See In re

Adoption of J.J., 511 Pa. at 608, 515 A.2d at 893; see also 23 Pa.C.S. §2511(a)(2), (9)

(permitting involuntary termination of parental rights due to abuse, neglect, or the

conviction of certain crimes).10 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.11

Although this Court’s most relevant precedent consists of Hiller and Schmehl,

neither decision is directly on point. Hiller arose in a situation where the mother had

died and the maternal grandmother sought to continue an existing relationship with the

minor child. This Court upheld the common pleas court’s application of the statute, 23

Pa.C.S. §5311 (repealed), observing that the provision was materially limited in scope

to the deceased-parent scenario and only provided for custody in favor of a grandparent

on the deceased parent’s side, see Hiller, 588 Pa. at 360, 904 A.2d at 886, where the

risk appears greatest that a pre-existing grandparent relationship may be severed.

10
Aside from issues relating to family relationships, the government’s interest in
protecting children and promoting their welfare may also be served via its police power
as reflected in enactments regulating child labor, requiring school attendance, vaccines,
and motor-vehicle child safety seats, and imposing criminal liability for corrupting or
otherwise harming minors. Accord Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.
Ct. 438, 442 (1944); Blixt v. Blixt, 774 N.E.2d 1052, 1059 (Ma. 2002); In re Custody of
Smith, 969 P.2d 21, 28 (Wash. 1998). See generally 18 Pa.C.S. Ch. 63 (defining
offenses against or involving minors); id. §4304 (defining the offense of endangering the
welfare of children).

11
The statute also encompasses great-grandparents. For convenience we refer only to
grandparents. See Hiller, 588 Pa. at 360 n.19, 904 A.2d at 886 n.19.

[J-53-2016] - 11
Grandparent custody in that context and the considerations it entails are distinct from,

albeit perhaps overlapping with, the issues that arise when both parents are living.

Schmehl is closer to the present matter in that it concerned Section 5312, whose

reach was defined by language similar to that which appears in paragraph (2) of Section

5325. Compare 23 Pa.C.S. §5312 (repealed) (allowing for grandparent partial custody

or visitation during “proceedings for dissolution . . . or when parents have been

separated for six months or more”), with 23 Pa.C.S. §5325(2) (giving grandparents

standing “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”).

Still, Schmehl involved divorced parents, see generally Schmehl, 592 Pa. at 593 n.9,

927 A.2d at 189 n.9 (citing scholarship concerning the effects of divorce on children);

see also id. at 591, 927 A.2d at 188-89 (discussing prior judicial expressions regarding

the impact of divorce on families), who were not in agreement concerning grandparent

custody. See id. at 584, 927 A.2d at 184. The breakdown in unified parental decision-

making was thus more severe in Schmehl than it is in the present matter, where Parents

have never sought court involvement in their family issues and are able to co-parent in

agreement concerning whether their children should maintain contact with their

grandparents. The objecting parent in Schmehl only sought a declaration that the

statute was invalid in the divorce setting, and the grandparents defended the statutory

classification by emphasizing that, unlike with intact families, “[t]he state must oversee a

divorce action, and arrange for custody, support and visitation in some cases.” Brief for

Appellants in Schmehl v. Wegelin, 592 Pa. 581, 927 A.2d 183 (2007) (No. 87 MAP

2005), 2005 WL 5713971, at *23. Hence, the separation scenario was not before the

Court in Schmehl, and we cannot assume that any empirical studies relating to the

effects of divorce carry over to mere separation.

[J-53-2016] - 12
 In spite of these differences, Hiller and Schmehl do inform our inquiry. Hiller

noted that common pleas courts are required to apply a presumption that parents act in

their children’s best interests, and that such presumption applies regardless of whether

the statute facially necessitates it. See Hiller, 588 Pa. at 361, 904 A.2d at 887 (“In

addition to the language of the statute, our precedent requires our courts to . . . provide

a presumption in favor of the decision of a fit parent.”). Thus, the Court observed that,

whenever a custody dispute arises between the parents and a third party, “the

evidentiary scale is tipped, and tipped hard, to the parents’ side.” Hiller, 588 Pa. at 362,

904 A.2d at 887 (quoting Ellerbe, 490 Pa. at 367, 416 A.2d at 514); see also id. at 363,

904 A.2d at 888 (developing that this Court has repeatedly “reaffirmed the presumption

in favor of parents set forth in Ellerbe”); accord Charles v. Stehlik, 560 Pa. 334, 340,

744 A.2d 1255, 1258 (2000). Hiller also held that this presumption, combined with the

“stringent requirements of Section 5311, as applied in this case,” Hiller, 588 Pa. at 365,

904 A.2d at 890,12 adequately protected parental rights so that grandparents did not

need to make a threshold showing of actual or potential harm to the child stemming

from the surviving parent’s decisions. See id. at 365-66, 904 A.2d at 890.

By referring to the established presumption in favor of fit parents and Section

5311’s requirements, Hiller rested its holding, in significant part, on considerations

relating to the preliminary question of standing.13 Most notably, the “stringent

12
Section 5311 was similar to Section 5312, see supra note 5, although it referred to a
situation where the parent was deceased. See id. at 344 n.1, 904 A.2d at 876 n.1.

13
Grandparent standing to seek an order directing custody or visitation is a creature of
statute, as grandparents generally lacked substantive rights at common law in relation
to their grandchildren. Accord Hiller, 588 Pa. at 372, 904 A.2d at 894 (Newman, J.,
concurring); Olds v. Olds, 356 N.W.2d 571, 572 (Iowa 1984) (quoting Mimkon v. Ford,
332 A.2d 199, 200-01 (N.J. 1975)); 2 JOAN M. KRAUSKOPF ET AL., ELDERLAW : ADVOCACY
FOR THE AGING §25:14 (2d ed. 1993 & Supp. 2015) (collecting cases).

[J-53-2016] - 13
requirements” of Section 5311 included a prerequisite that the petitioning grandparents

demonstrate standing to seek relief. That Hiller’s constitutional analysis centered on the

propriety of grandparent standing in the context which arose in that dispute is made

explicit in its explanation that, “[u]nlike the statute in Troxel, which extended standing to

any person at any time, Section 5311 narrowly limits those who can seek visitation or

partial custody . . . to grandparents whose child has died.” Hiller, 588 Pa. at 360, 904

A.2d at 886; see also Schmehl, 592 Pa. at 588, 927 A.2d at 187 (characterizing Hiller as

holding that Section 5311 was “narrowly tailored . . . because it extend[ed] standing” to

a limited, defined subset of grandparents).

Schmehl’s understanding of the aspect of Section 5312 at issue in that matter

was similarly couched. See id. at 584-85, 927 A.2d at 184 (summarizing the mother’s

argument that equal protection norms were offended by Section 5312 because

“standing to obtain partial custody or visitation is not afforded to grandparents of

children whose parents are married and living together,” while it is afforded to the

grandparents of children whose parents are divorced or separated).

The focus on standing is sharpened even further in the present controversy: the

common pleas court, unlike in Hiller and Schmehl, never reached the complaint’s merits

because it determined that the statutory basis for standing was unconstitutional. In this

respect, it is notable that the redrafted Chapter 53, more expressly than its predecessor,

segregates grandparent standing requirements (Section 5325) from merits

considerations (Section 5328).14 Therefore, as illustrated presently, whenever there are

contested issues relating to standing, the chapter gives parents the ability to bifurcate

14
The 1985 version of Chapter 23 also had sections nominally devoted to standing and
merits, see 23 Pa.C.S. §§5313 (repealed), 5303 (repealed), but the merits section was
very brief and such considerations were intermixed in Sections 5311 and 5312.

[J-53-2016] - 14
the proceedings by seeking dismissal for lack of standing, thereby requiring that any

such preliminary questions be resolved before the complaint’s merits are reached.

The potential for such bifurcation serves an important screening function in terms

of protecting parental rights. As suggested, it facilitates early dismissal of complaints,

thereby relieving families of the burden of litigating their merits where a sufficient basis

for standing is absent. Accord Rideout v. Riendeau, 761 A.2d 291, 302-03 (Me. 2000)

(plurality) (indicating that, in a bifurcated procedure, grandparent-standing requirements

“provide[] protection against the expense, stress, and pain of litigation, unless and until

the grandparents have convinced the court that they are among those grandparents

who may pursue visits”). Indeed, a majority of Justices in Troxel recognized that such

litigation can itself impinge upon parental rights, especially if it becomes protracted

through the appellate process. See Troxel, 530 U.S. at 75, 120 S. Ct. at 2065; id. at

101, 120 S. Ct. at 2079 (Kennedy, J., dissenting); accord Blixt v. Blixt, 774 N.E.2d 1052,

1065-66 (Ma. 2002).15 Therefore, and as the factors governing resolution of a custody

15
Hiller also took notice of the costs associated with custodial litigation, indicating that
grandchildren are not benefitted when “grandparents force their way into [their] lives
through the courts, contrary to the decision of a fit parent,” and adding that such
consideration was “especially resonant given the strain that custody litigation places on
the children as well as parents and grandparents[.]” Hiller, 588 Pa. at 359 & n.20, 904
A.2d at 886 & n.20 (citing Troxel, 530 U.S. at 101, 120 S. Ct. at 2079 (Kennedy, J.,
dissenting) (describing that custody litigation tends to be disruptive of family life and
that, for a parent struggling financially, the monetary costs can undermine the parent’s
plans for the child’s future)). Other courts have made similar observations. See, e.g.,
Conlogue v. Conlogue, 890 A.2d 691, 699 (Me. 2006) (proffering that the strains of
litigation “include various forms of pressures and stress that can pose a real threat to
family well-being” (internal quotation marks and citations omitted)); Hawk v. Hawk, 855
S.W.2d 573, 577 n.2 (Tenn. 1993) (noting that such stresses include those which arise
from the public disclosure of the details of private, inter-generational disputes); cf. id. at
576 n.1 (suggesting that court-ordered grandparent visitation in a family where there is
animosity between the parents and grandparents can intensify the animosity and, as
such, can be contrary to the child’s best interests).

[J-53-2016] - 15
complaint’s merits (as set forth in Section 5328) are not at issue, our analysis is directed

to whether Section 5325’s conferral of standing to grandparents to prosecute such a

complaint can withstand strict scrutiny.

Again, absent factors such as abuse, neglect, or abandonment, the law

presumes parents are fit and, as such, that their parenting decisions are made in their

children’s best interests. See Parham v. J.R., 442 U.S. 584, 602-03, 99 S. Ct. 2493,

2504 (1979); Troxel, 530 U.S. at 68, 120 S. Ct. at 2061.16 In the context of grandparent-

initiated litigation, then, the rewritten Chapter 53 can only subsume the essential

screening function referenced above if the prerequisites to grandparent standing

effectively filter out cases where there is little reason to believe the government may

constitutionally exercise its parens patriae power by ordering partial custody over the

parents’ objections.

Consequently, the question becomes whether the state may exercise its interest

in fostering grandparent-grandchild relationships over the objection of presumptively fit

parents solely on the basis that they have been separated for at least six months.

The stated goal is not insignificant. In the event of a major disruption to the

family environment, such as where there is parental abuse, neglect, substance abuse,

mental illness, or abandonment, the interest may be especially pronounced. See

Bennett v. Jeffreys, 356 N.E.2d 277, 281 (N.Y. 1976) (“Examples of cause of necessity

permitting . . . intrusion on parental control would be fault or omission by the parent

seriously affecting the welfare of a child, the preservation of the child’s freedom from

serious physical harm, illness or death, or the child’s right to an education, and the

like[.]”). Even in less severe circumstances, and in view of the changing nature of the

family in the modern era, Hiller suggests other important grounds for believing the state

16
The record before us lacks any suggestion tending to rebut the presumption.

[J-53-2016] - 16
has an elevated interest. See Hiller, 588 Pa. at 360, 904 A.2d at 886 (“[I]n the recent

past, grandparents have assumed increased roles in their grandchildren’s lives and our

cumulative experience demonstrates the many potential benefits of strong inter-

generational ties.” (citing Troxel, 530 U.S. at 64, 120 S. Ct. at 2059)); see also id. at

347, 904 A.2d at 878-79 (describing the benefits to a minor child, as found by the

common pleas court, of continuing a relationship with his maternal grandmother to help

him cope with his mother’s death); Michael v. Hertzler, 900 P.2d 1144, 1150-51 (Wyo.

1995) (reviewing several ways in which grandparents influence their families (quoting

Patricia S. Fernandez, Grandparent Access: A Model Statute, 6 YALE L. & POL’Y REV.

109, 109-10 (1988))). Nevertheless, 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. See generally Conlogue,

890 A.2d at 694 (expressing, as a general precept, that “something more than the best

interest of the child must be at stake in order to establish a compelling state interest”);

Troxel, 530 U.S. at 72-73, 120 S. Ct. at 2064 (explaining that, under the Due Process

Clause, third-party standing to pursue custody cannot be based solely on the possibility

that a judge may ultimately disagree with a parent as to what is in the child’s best

interests).

Additionally, and crucially for present purposes, we cannot assume that the

rationale supporting the holdings in those cases applies equally to situations involving

parental separation. As this case shows, when parents separate they do not always

initiate divorce proceedings or otherwise request court involvement in their family

affairs. See generally Brief for Appellees at 35-36 (“Parents are merely separated and

not subject to a custody order. . . . Parents have the ability to reconcile.”). Although

separation may involve a disruption of the nuclear family unit, the children are often

[J-53-2016] - 17
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. Cf. Frame v. Nehls, 550 N.W.2d 739, 742 (Mich. 1996) (describing the challenged

Michigan statute as setting forth a general rule that grandparents only have standing to

seek visitation if a child custody dispute is already pending). Further, Grandparents and

the Attorney General – who, as noted, has decided not to participate in this litigation,

see supra note 3 – have not put before this Court any empirical data corresponding to

that referenced in Schmehl tending to suggest that separation has the same adverse

effects upon children as divorce.

As well, unlike in Hiller, separation necessarily implies that both parents are still

alive, which in turn has several consequences. First, there is no void stemming from

the death of a parent. Second, parental death cannot be the cause of the severance or

non-existence of a grandparent-grandchild relationship. Finally, when both parents are

living there is a possibility – as illustrated by this case – that the parents will be in

agreement that their children should not maintain contact with particular third parties.17

These factors render any court-mandated association with such third parties more

intrusive to the parents’ constitutional prerogatives than in a context where the parents

have already invoked the court’s oversight as to matters of custody and/or marital

dissolution. See generally Hawk v. Hawk, 855 S.W.2d 573, 577 (Tenn. 1993)

(“Although courts are commonly called on to resolve custody disputes between parents

and to determine custody when parents are unfit, the trial court’s interference with the

17
We recognize that parental agreement of this nature is possible with divorced parents
and parents who have commenced marriage dissolution proceedings. Whether the
standing provisions of Chapter 53 as revised are constitutional in such situations should
be developed going forward as cases involving those circumstances arise.

[J-53-2016] - 18
united decision of admittedly good parents represents a virtually unprecedented

intrusion into a protected sphere of family life.”).

In light of the foregoing, we conclude that the fact of a parental separation for six

months or more does not render the 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 independent basis for grandparent standing. See Danson v. Casey,

484 Pa. 415, 434, 399 A.2d 360, 370 (1979) (explaining that the narrow tailoring

requirement means the statutory scheme must have been “structured with precision”

and that the Legislature must have chosen the “le[ast] drastic means” of effectuating its

objectives (internal quotation marks and citation omitted)); Richard H. Fallon, Jr., Strict

Judicial Scrutiny, 54 UCLA L. REV. 1267, 1328 (2007) (observing that a legislative

enactment can fail the narrow-tailoring component of strict scrutiny if it is

“overinclusive”). Consequently, Section 5325 cannot survive strict scrutiny and, as

such, it violates the fundamental rights of parents safeguarded by the Due Process

Clause.18

Although we have concluded that Section 5325 is not narrowly tailored, it is

evident from our discussion that this determination rests solely on the conferral of

standing under paragraph (2), the only aspect of Section 5325 that has been brought

into question in this action. Moreover, paragraph (2) is itself divided into two parts and

phrased in the disjunctive, as it provides for grandparent standing “where the parents of

the child have been separated for a period of at least six months or have commenced

18
In view of our disposition, we need not reach the Equal Protection claim.

[J-53-2016] - 19
and continued a proceeding to dissolve their marriage[.]” 23 Pa.C.S. §5325(2)

(emphasis added). It is noteworthy that these are separate and independent

preconditions for grandparent standing, since it is possible for parents who have not

been separated for at least six months to commence and continue a dissolution

proceeding. Thus, the difficulties apparent in the first half of paragraph (2) do not imply

that the second half – or, for that matter, paragraph (1) or paragraph (3) – is also

problematic.

The above informs our decision concerning the appropriate remedy, and in

particular, the question of severance. In Ayotte v. Planned Parenthood of Northern New

England, 546 U.S. 320, 126 S. Ct. 961 (2006), the Supreme Court explained that “when

confronting a constitutional flaw in a statute, we try to limit the solution to the problem.”

Id. at 328, 126 S. Ct. at 967. The Court continued that “a statute may be declared

invalid to the extent that it reaches too far, but otherwise left intact.” Id. at 329, 126 S.

Ct. at 968 (ellipsis, internal quotation marks, and citation omitted). In salvaging a

statute to the extent possible without judicially rewriting it, Ayotte observed that the

“touchstone” for the remedy is legislative intent, that is, asking whether the “legislature

[would] have preferred what is left of its statute to no statute at all[.]” Id. at 330, 126 S.

Ct. at 968 (citing, inter alia, United States v. Booker, 543 U.S. 220, 227, 125 S. Ct. 738,

746 (2005)).

This comports with our own practice. Although there is no express severability

provision contained in Act 112 of 2010 or any aspect of the Domestic Relations Code

applicable to Chapter 53, the Statutory Construction Act directs, as general policy, that

all statutory provisions are presumed to be severable, and that if any provision is held to

be invalid the remainder of the statute which contains it

shall not be affected thereby, unless the court finds that the valid
provisions of the statute are so essentially and inseparably connected

[J-53-2016] - 20
 with, and so depend upon, the void provision or application, that it cannot
be presumed the General Assembly would have enacted the remaining
valid provisions without the void one; or unless the court finds that the
remaining valid provisions, standing alone, are incomplete and are
incapable of being executed in accordance with the legislative intent.
1 Pa.C.S. §1925. Thus, severance is appropriate where the remaining provisions are

capable of execution in accordance with legislative intent. See, e.g., Commonwealth v.

Mockaitis, 575 Pa. 5, 29-30, 834 A.2d 488, 502-03 (2003).

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.

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. Concurring and Dissenting Opinion, slip op. at 4 n.2 (Baer, J.).

More generally, it should be recalled that our “adjudicatory process is structured

to cast a narrow focus on matters framed by litigants before the Court in a highly

directed fashion,” Sernovitz v. Dershaw, ___ Pa. ___, ___ n.13, 127 A.3d 783, 794 n.13

(2015) (internal quotation marks and citation omitted), and, as such, we sit “to decide

[J-53-2016] - 21
concrete cases.” Id. (quoting Upjohn Co. v. United States, 449 U.S. 383, 386, 101 S.

Ct. 677, 681 (1981)). As a result, and as already suggested, see supra note 17, any

such judgment should be left for a future controversy in which the issue is squarely

presented, the Court has the benefit of focused adversarial briefing, and the Attorney

General is apprised that the constitutional validity of the second half of Section 5325(2)

has been called into question and is given an opportunity to defend it. See City of Phila.

v. Commonwealth, 575 Pa. 542, 570, 838 A.2d 566, 583 (2003) (explaining that the

Attorney General is charged with defending the constitutionality of all statutes passed by

the General Assembly (citing 71 P.S. §732-204(a)(3))). Finally, although Justice Wecht

may disagree with the holding reached in Schmehl, it remains binding precedent and

the parties’ briefs lack any request that it be overruled.

Accordingly, we now sever the first half of paragraph (2) from the remainder of

paragraph (2) and the remainder of Section 5325 generally.19

The order of the Court of Common Pleas dismissing Grandparents’ complaint is

affirmed.

Justices Todd, Donohue and Dougherty join the opinion.

Justice Baer files a concurring and dissenting opinion.

Justice Wecht files a concurring and dissenting opinion.

19
To be precise, the text, “have been separated for a period of at least six months or” is
inoperative and paragraph (2), 23 Pa.C.S. §5325(2), as a consequence of severance,
now only provides for standing “where the parents of the child have commenced and
continued a proceeding to dissolve their marriage[.]”

[J-53-2016] - 22