[J-53-2016] [MO: Saylor, C.J.]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT DISTRICT
D.P. AND B.P., HIS WIFE, : No. 25 WAP 2015
:
Appellants : Appeal from the Order of the Court of
: Common Pleas of Westmoreland
: County dated September 8, 2015 at No.
v. : 1750 of 2014-D.
:
: ARGUED: April 5, 2016
G.J.P. AND A.P., :
:
Appellees :
CONCURRING/DISSENTING OPINION
JUSTICE WECHT DECIDED: SEPTEMBER 9, 2016
The majority’s decision relies, in part, upon the fact that the “Parents have never
sought court involvement in their family issues and are able to co-parent.” Maj. Op. at
12. Our courts and our law should foster and encourage efforts such as those
undertaken here by the parents to co-parent and to resolve differences amicably
regarding their children. Whether or not divorce is sought or contemplated, when
consensus on child custody can be reached, judicial intrusion upon the fundamental
right of fit parents to raise their children must be curtailed, lest that intrusion run afoul of
our Constitution.
I join the learned majority’s ruling invalidating the portion of 23 Pa.C.S. § 5325(2)
that purports to authorize third party intrusion into decision-making by fit parents merely
because those parents are separated. I dissent respectfully from the majority’s decision
to leave untroubled the remainder of that provision, which approves identical third party
intrusion merely because otherwise fit parents happen to be divorced or divorcing.
The majority’s distinction between separated and divorced parents permits it to
distinguish Schmehl v. Wegelin, 927 A.2d 183 (Pa. 2007), without overruling it. The
distinction is unconvincing. Here, the parents are separated, and agree regarding
grandparent contact with the children. In Schmehl, the parents were divorced, and did
not agree regarding grandparent contact. This is a thin divergence upon which to rest a
differential and consequential classification of fundamental liberty interests. Suppose,
for example, that the parents here did invoke court involvement, or do so next month or
next year. What then? Application of the divorced/separated dichotomy becomes
problematic, the distinction opaque. Every year, thousands of separated
Pennsylvanians seek court intervention, whether in support, in custody, or in protection
from abuse. Judicial involvement emphatically is not limited to divorcing or divorced
parents. No divorce filing is required for entry into family court.
Try as I might, I cannot conclude that the statute’s problem can be as neatly
delimited as the Majority provides.1 I find untenable and archaic Schmehl’s holding that
divorce, without more, suffices to permit outside intervention in the child-rearing
decisions of otherwise fit parents, and its resulting decision to uphold the constutionality
1
The Majority cites the sound principle that, “when confronting a constitutional flaw
in a statute, we try to limit the solution to the problem.” Maj. Op. at 20 (quoting Ayotte v.
Planned Parenthood of Northern New England, 546 U.S. 320, 328 (2006)). Because I
cannot discern a principled constitutional distinction between divorced and separated
couples in the context of the right to parent (and a child’s right to a parent), I must
disagree with the Majority’s severability analysis. Because the due process and equal
protection clauses do not countenance discrimination between (or against) separated
and divorced parents, the two prongs of Section 5325(2) are intertwined and
inseparable. Under these circumstances, it is unlikely that the General Assembly would
have intended to confer standing upon grandparents within the context of divorce while
declining to do so within the context of separation. See 1 Pa.C.S. § 1925.
[J-53-2016] [MO: Saylor, C.J.] - 2
of 23 Pa.C.S. § 5325(2)’s predecessor statute in its entirety. As written, the statute
discriminates between married and divorced parents, impermissibly and arbitrarily
authorizing a heightened level of state or third party intervention with respect to the
latter when there is no compelling reason to discriminate between the two categories.
See Schmehl, 927 A.2d at 193 (Cappy, C.J., dissenting), and 195-96 (Baldwin, J.,
dissenting).
Marital status -- whether married, separated, or divorced -- is not simply a crude
or rough proxy for parental fitness. It is no proxy at all. At this late date, I would think
that our courts, if not our legislature, had moved beyond assumptions and biases
against divorced parents, most of whom strive in the face of adversity to be the best
parents they can be. To maintain any portion of Section 5325(2) is to deny societal
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 (2000).
[J-53-2016] [MO: Saylor, C.J.] - 3