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2019 PA Super 91
J. & S. O. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
C.H. :
:
Appellant : No. 1361 MDA 2018
Appeal from the Order Entered July 17, 2018
In the Court of Common Pleas of York County Civil Division at No(s):
2014-FC-001854-03
BEFORE: LAZARUS, J., DUBOW, J., and NICHOLS, J.
OPINION BY DUBOW, J.: FILED: MARCH 27, 2019
Appellant, C.H. (“Father”), appeals from the July 17, 2018 Order entered
in the York County Court of Common Pleas, which granted Appellees’
(“Maternal Grandparents”) Petition for Modification of Custody and awarded
Maternal Grandparents partial physical custody of H.H. (“Child”) every other
Saturday and additional time on holidays and during the summer months.
Based on the reasoning of Hiller v. Fausey, 904 A.2d 875 (Pa. 2006), we
conclude that 23 Pa.C.S. § 5325, granting standing to grandparents to seek
partial custody of their deceased child’s children (grandchildren), survives
strict scrutiny and is constitutional as applied in this case. We, thus, affirm.
The relevant factual and procedural history is as follows. Father and
Child’s biological mother (“Mother”) were married and Child was born in 2009.
Child saw Maternal Grandparents on a weekly basis and often spent the night
at their home. Mother passed away in March 2013.
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On October 14, 2014, Maternal Grandparents filed a Complaint for
Custody, which ultimately resolved with the filing of a Stipulated Order on
October 18, 2016. The Stipulated Order awarded Maternal Grandparents
partial physical custody of Child three days per month during the school year
and seven days per month during the summer months, which could be
modified to overnight visitation at the recommendation of Child’s therapist.1
On October 26, 2017, Maternal Grandparents filed a Petition for
Modification of Custody and Contempt of Existing Orders alleging that Father
was not complying with the Stipulated Order. After a custody trial, the trial
court granted Maternal Grandparents’ Petition for Modification of Custody and
denied Maternal Grandparents’ Petition for Contempt. As stated above, the
trial court awarded Maternal Grandparents partial physical custody of Child
every other Saturday during the school year, on Christmas Eve, and on four
additional days in the summer.
Father timely appealed. Father and the trial court both complied with
Pa.R.A.P. 1925.
Father raises the following issues on appeal:
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1 In a Pre-Trial Memorandum filed prior to a scheduled custody hearing that
never occurred due to parties’ agreement, Father raised the issue of whether
two custody statutes, 23 Pa.C.S. § 5325 and 23 Pa.C.S. § 5337, were
unconstitutional. On November 9, 2016, Father filed a Notice of Appeal raising
the same constitutional issues. On October 6, 2017, this Court sua sponte
determined that the October 18, 2016 Stipulated Order was interlocutory and,
therefore, quashed the appeal. See J.T.O. v. C.H., 179 A.3d 540 (Pa. Super.
2017) (unpublished memorandum).
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1. Whether the statute granting automatic standing to
grandparents at [23 Pa.C.S. § 5325(1)] violates a parent’s 14th
Amendment rights to due process, as well as of the
Pennsylvania Constitution, as the statute does not pass a strict
scrutiny analysis where the grandparents have been offered
ongoing contact with the grandchild after a parent’s death?
2. Whether [23 Pa.C.S. § 5325(1)] creates unconstitutionally
disparate treatment for the class in violation of a widowed
parent’s 14th Amendment rights under the Equal Protection
Clause, as well as Article 1, §§ 1 and 26 of the Pennsylvania
Constitution, who are subjected to court review of their
parenting decisions regarding the amount and length of contact
between their child(ren) with grandparents versus those
parents in two parent families?
3. Whether by subsequent legislative enactment and application
of the anti-relocation provisions contained within [23 Pa.C.S. §
5337] causes [23 Pa.C.S. § 5325] to violate the fundamental
rights of parents to make decision concerning their child’s care,
custody and control as guaranteed to them under the
Substantive Due Process Clause of the 5th Amendment as
applied by the 14th Amendment of the United States
Constitution?
4. Whether due to the enactment of [23 Pa.C.S. § 5337], [23
Pa.C.S. § 5325] violates the Equal Protection Clause of the 14th
Amendment of the United States Constitution, and Article 1, §§
1 and 26 of the Pennsylvania Constitution by its disparate
treatment of parents based upon arbitrary parental
classification?
Father’s Brief at 5-6.
The constitutionality of a statute presents a question of law and this
Court’s review is plenary. Schmehl v. Wegelin, 927 A.2d 183, 186 (Pa.
2007). “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.” Id. (citation and internal quotation marks
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omitted). Accordingly, any party seeking to overcome that presumption of
validity “bears a heavy burden of persuasion.” Id.
In his first two issues, Father avers that 23 Pa.C.S. § 5325(1), the
underlying statute providing Maternal Grandparents standing in the instant
custody matter, is unconstitutional. Father’s Brief at 5. Father argues that
the statutory provision, which states, “where the parent of the child is
deceased, a parent or grandparent of the deceased parent may file an action
[for partial physical or supervised physical custody,]” violates both his due
process and equal protection rights.2 See 23 Pa.C.S. § 5325(1); Father’s Brief
at 5.
Due Process Rights
Father first contends that Section 5325(1) as applied violates his due
process rights to raise his child without government interference. Father’s
Brief at 13. He asserts that the statute fails to pass strict scrutiny because it
is not narrowly tailored to serve a compelling state interest. Id. at 15. He
contends that Section 5325(1) violates the Due Process Clause because it
automatically grants standing to any grandparent when their child is deceased
regardless of whether the surviving parent has allowed continued, consistent,
and ongoing contact between a child and the grandparents. Id. at 5, 15-17.
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2 We note that the legislature repealed the prior statute, 23 Pa.C.S. § 5311,
in 2010 and replaced it with 23 Pa.C.S. § 5325, which the legislature amended
to its current version in 2018.
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It is well settled that grandparent visitation and custody statutes
generally authorize state action and, therefore, are subject to constitutional
limitations. D.P. v. G.J.P., 146 A.3d 204, 210 (Pa. 2016). The Fourteenth
Amendment provides that no State shall “deprive any person of life, liberty,
or property, without due process of law” or deny any person within their
jurisdiction “the equal protection of the laws.” U.S. Const. amend. XIV, § 1.
The Pennsylvania Constitution provides equivalent protections.3
Our Supreme Court has held that Section 5325 infringes upon the right
of parents to make decisions regarding the care, custody, and control of their
children, a fundamental right that is protected by the Fourteenth
Amendment’s “due-process and equal-protection guarantees.” D.P., supra
at 210. Because Section 5325 infringes upon a fundamental right, “to survive
a due process or equal protection challenge, Section 5325 must satisfy the
constitutional standard known as strict scrutiny.” Id.; see also Hiller, supra
at 885 (holding that we must apply a strict scrutiny analysis when the state
infringes upon the fundamental rights of parents to direct the care, custody,
and control of their children).
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3 The Pennsylvania Constitution, Article 1, Section 1 provides: “All men are
born equally free and independent, and have certain inherent and indefeasible
rights, among which are those of enjoying and defending life and liberty, of
acquiring, possessing and protecting property and reputation, and of pursuing
their own happiness.” Pa. Const. art. I, § 1. Article 1, Section 26 provides:
“Neither the Commonwealth nor any political subdivision thereof shall deny to
any person the enjoyment of any civil right, nor discriminate against any
person in the exercise of any civil right.” Pa. Const. art. I, § 26.
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In general, a strict scrutiny analysis examines whether the
governmental action is narrowly tailored to a compelling state interest. D.P.,
supra at 210. “[T]he 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.” Id. (citation omitted).
The compelling state interest at issue in grandparent custody and
visitation statutes is the state’s longstanding interest in protecting the health
and emotional welfare of children and promoting their well-being. See Hiller,
supra at 886; D.P., supra at 211. Our Supreme Court, like the United States
Supreme Court, has frequently approved of the state’s exercise of its parens
patriae interest and allowed infringements on parental rights where the
welfare of children is at stake.4 Hiller, supra at 886. Specifically, this has
occurred in cases where our Supreme Court has permitted termination of
parental rights, declarations of dependency, and grants of custody to non-
biological parents over the objection of biological parents. Id.
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4 “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.” D.P. v. G.J.P.,
146 A.3d 204, 211 n.9 (Pa. 2016) (citation omitted).
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Applying these principles to this case, we start with the proposition that
the protection of the welfare of children, including ensuring that children of
deceased parents are not deprived of beneficial relationships with their
grandparents, is a compelling state interest. See D.P., supra at 211. We
must next determine whether Section 5325(1) is narrowly tailored to serve
that interest. See Hiller, supra at 886. We find that it is.
We are guided by Hiller, supra, where our Supreme Court addressed
the constitutionality of Section 5311, the prior statute granting standing to
grandparents whose child has died.5 In Hiller, the maternal grandmother and
the child saw each other daily and had a close relationship prior to the
mother’s death. Id. at 877. After mother’s death, the father suspended
frequent contact and the child only saw maternal grandmother a few times
throughout the year following mother’s death. Id. The grandmother filed for
partial custody and, after a hearing, the trial court awarded grandmother
physical custody of the child one weekend per month and one week in the
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5 23 Pa.C.S. § 5311 (repealed) stated:
If a parent of an unmarried child is deceased, the parents or
grandparents of the deceased parent may be granted reasonable
partial custody or visitation rights, or both, to the unmarried child
by the court upon a finding that partial custody or visitation rights,
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 deceased parent and the child prior to the
application.
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summer. Id. Father appealed, challenging the constitutionality of the trial
court’s application of the statute. This Court affirmed.
On review, our Supreme Court also affirmed, holding that the application
of the portion of the statute, which allowed visitation or partial custody to
grandparents upon death of a child’s parent, did not violate the father’s due
process right to direct the care, custody, and control of his child. Id. at 890.
Most relevant to our analysis, the Court held that the prior statute, which is
nearly identical to the current Section 5325(1), survived a strict scrutiny
analysis, observing that it “narrowly limits those who can seek visitation or
partial custody not merely to grandparents, but specifically to
grandparents whose child has died.” Id. at 886 (emphasis added).
The Court observed that there is a policy interest in permitting continued
contact with grandparents, particularly because “grandparents have assumed
increased roles in their grandchildren’s lives and our cumulative experience
demonstrates the many potential benefits of strong inter-generational ties.”
Id. While the Court recognized that a grandparent’s desire for partial physical
custody would not prevail over a fit parent’s decision to limit contact in all
cases, it refused “to close our minds to the possibility that in some instances
a court may overturn even the decision of a fit parent to exclude a grandparent
from a grandchild’s life, especially where the grandparent’s child is
deceased and the grandparent relationship is longstanding and
significant to the grandchild.” Id. at 887 (emphasis added).
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Finally, the Court recognized that the statute balanced the state’s
interest and parent’s rights when it required courts to ensure that the
visitation or partial custody would not interfere with the parent-child
relationship and was in child’s best interest. Id. The Court acknowledged
that the statute required courts to consider the amount of contact between a
grandparent and a grandchild before the petition was filed. Id.
The current provision, Section 5325(1), is virtually identical to the
statute that was at issue in Hiller. Both are narrowly tailored to provide
grandparents and great-grandparents standing to file for partial physical
custody where the parent of the child is deceased. See 23 Pa.C.S. § 5325(1);
23 Pa.C.S. § 5311 (repealed). See also Hiller, supra at 886. As with the
prior statute, Section 5325(1) advances the longstanding compelling state
interest of protecting the health and emotional welfare of children by creating
an opportunity for the child to have a relationship with the family of the child’s
deceased parent. See Hiller, supra at 886. Also, it is narrowly tailored to
limit those who can seek visitation or partial custody specifically to
grandparents whose child has died. See id. Section 5325(1), like Section
5311, thus, passes strict scrutiny. Accordingly, pursuant to the reasoning and
analysis in Hiller, we conclude that Section 5325(1) does not violate Father’s
due process rights to direct the care, custody, and control of Child.
Father argues, without citing the record, that Hiller does not apply in
this case because Hiller addressed a “distinctly different factual scenario
[from] the case at hand, one where after one parent’s death, the other parent
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refused a grandparent contact with the child[.]” Father’s Brief at 15. Father
argues that Section 5325(1) is not structured with precision because it
requires no advance showing by grandparents that they are actually being
denied visitation with their grandchild. Father’s Brief at 16-17. We reject
Father’s attempt to distinguish the applicability of Hiller.
As in Hiller, we recognize that Section 5325(1) is narrowly tailored
because it applies specifically to grandparents whose child has died. Appellant
has provided no support for his claim that standing to seek partial physical
custody required any factual basis beyond that provided quite precisely in the
statute. See 1 Pa.C.S. § 1921(b) (stating “[w]hen the words of a statute are
clear and free from all ambiguity, the letter of it is not to be disregarded under
the pretext of pursuing its spirit.”). Father’s contention ignores the fact that
all custody considerations are based on the best interests of the child and a
statute granting standing does not change that. We, thus, reject Appellant’s
attempt to distinguish Hiller.
Further, Father’s reliance on Troxel v. Granville, 530 U.S. 57 (2000)
and D.P., supra – both cases where grandparent custody statutes were found
to be unconstitutional – to support his argument that Section 5325(1) is
unconstitutional is unpersuasive. Both cases are easily distinguished from this
case.
In Troxel, the fact pattern is similar to the instant case where a
grandparent sought visitation with a grandchild after the death of a parent.
The United States Supreme Court found the underlying statute to be
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unconstitutional because the Washington statute provided that any person
may petition the court for visitation at any time. Troxel, supra at 67. In
contrast, Section 5325(1) limits petitioners to grandparents who have a
deceased child.
D.P. is, likewise, easily distinguished from this case. In D.P., supra,
our Supreme Court found now-repealed Section 5325(2), which granted
standing to a grandparent to seek custody of a grandchild if the child’s parents
were separated for at least six months, to be unconstitutional. First and
foremost, D.P. addresses an entirely different section of the statute. Further,
the Court in D.P. specifically distinguished the statute at issue in D.P., which
granted standing to grandparents of separated parents, from a statute
granting standing to grandparents who have a deceased child, stating that
when parents are separated “there is no void stemming from the death of a
parent.” D.P. at 215.
Accordingly, as stated above, we conclude that Section 5325(1) does
not violate Father’s due process rights to direct the care, custody, and control
of Child. Pennsylvania has a longstanding interest in protecting children and
promoting their well-being, and the statute is narrowly tailored to grant
standing to seek custody only to grandparents whose child has died, rather
than all grandparents.
Equal Protection Rights
Father next avers that Section 5325(1) violates his equal protection
rights by subjecting a class of individuals, namely widowers, to court review
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of their parenting decisions regarding grandparent visitation when non-
widowed parents are not subject to such review. Father’s Brief at 17. Father
once again argues that the statute does not survive a strict scrutiny analysis
because it is not narrowly tailored to ensure a compelling state interest. Id.
at 17-18.
As discussed above, when examining whether Section 5325(1) violates
Father’s equal protection rights we must employ a strict scrutiny analysis to
determine if the classification inherent in the statute is necessary to achieve
the compelling state interest of protecting children and ensuring their well-
being. See D.P., supra at 210. Since we held, supra, that Section 5325(1)
does not violate Father’s due process rights because the statute is narrowly
tailored to grant standing only to grandparents whose child has died, it is
axiomatic that the classification inherent in the statute – parents who are
widowers – is necessary to achieve the same interest. It is impossible to grant
standing to grandparents whose child has died without singling out widowed
parents.
Accordingly, we find that Section 5325(1) does not violate Father’s equal
protection rights because the classification inherent in the statute is necessary
to achieve the compelling state interest of protecting children and ensuring
their well-being.
Section 5337 – Relocation
In Father’s final two issues, he avers that 23 Pa.C.S. § 5337, a statute
that prohibits a parent from relocating unless every individual who has custody
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rights to the child consents or the court approves the proposed relocation, is
unconstitutional as it relates to Section 5325(1), the statute granting
automatic standing to grandparents who have deceased children. Father’s
Brief at 5-6. Father argues that because of the concomitant rights granted
under Section 5337, allowing grandparents to acquire custodial rights over the
objection of a fit parent pursuant to Section 5325(1) enables grandparents to
“frustrate the parents’ decision on the fundamental right to decide where to
live and raise their child[.]” Father’s Brief at 21. Father’s challenge is
premature.
Father did not file a pleading requesting relocation and Father did not
offer any testimony that he planned to relocate. Maternal Grandparents argue
that Father is essentially seeking an “advisory opinion” on the constitutionality
of Section 5337 without a relocation request before the court. Maternal
Grandparents’ Brief at 20. We agree and decline to address these issues. See
Gulnac by Gulnac v. South Butler County School Dist., 587 A.2d 699,
701 (Pa. 1991) (stating a declaratory judgment must not be employed “to
determine rights in anticipation of events which may never occur” or “as a
medium for the rendition of an advisory opinion which may prove to be purely
academic.”)
For the reasons discussed above, we find that Section 5325(1) does not
clearly, palpably, and plainly violate the Constitution. Accordingly, we affirm.
Order affirmed.
Judge Lazarus joins the opinion.
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Judge Nichols concurs in result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/27/2019
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