[J-27-2023] [MO: Brobson, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
J.C.D, III AND A.M.D., : No. 13 MAP 2023
:
Appellees : Appeal from the Order of the
: Superior Court at No. 1449 MDA
: 2022 dated November 14, 2022
v. : Quashing the appeal from the York
: County Court of Common Pleas,
: Domestic Relations, order dated
A.L.R. AND T.A.D.-R., : October 6, 2022, at No. 2022-FC-
: 1432-03.
Appellants :
: ARGUED: May 23, 2023
DISSENTING OPINION
CHIEF JUSTICE TODD DECIDED: October 18, 2023
In affirming the Superior Court’s quashal of the appeal of Appellants (“Parents”) of
the trial court’s order holding that that Appellees (“Grandparents”) have standing to
pursue an action for partial physical custody of Parents’ children (“Grandchildren”), the
majority holds that the trial court’s order is not a collateral order appealable as of right
under Pa.R.A.P. 313. As I conclude that the trial court’s order is appealable as a collateral
order pursuant to Rule 313, I respectfully dissent.
Rule 313 provides:
(a) General rule.—An appeal may be taken as of right from a
collateral order of a trial court or other government unit.
(b) Definition.—A collateral order is an order separable from and
collateral to the main cause of action where the right involved
is too important to be denied review and the question
presented is such that if review is postponed until final
judgment in the case, the claim will be irreparably lost.
Pa.R.A.P. 313.
As recognized by the majority, Grandparents do not dispute that Parents have
established the first two prongs of Rule 313(b). Specifically, with regard to the first prong,
Grandparents agree that the issue of standing is separable from, and collateral to, the
main cause of action. See Majority Opinion at 6-7. Grandparents also acknowledge that
a decision regarding standing will have a direct effect on their ability to participate in
custody proceedings, which impacts the important issue of the children’s best interest,
thereby establishing the second prong. See id. at 7-9. Thus, I agree with the majority
that the dispositive issue in this matter is whether Parents have satisfied the third prong
of the collateral doctrine − that their claim will be irreparably lost if postponed until final
judgment in the case. Ultimately, the majority concludes that Parents have failed to satisfy
the irreparability prong because they will be able to challenge the trial court’s order with
respect to standing on appeal from the final order in the underlying custody proceeding.
I disagree with this conclusion.
The right to make decisions regarding the care, custody, and control of one’s
children is “one of the oldest fundamental rights protected by the Due Process Clause.”
Hiller v. Fausey, 904 A.2d 875, 885 (Pa. 2006) (citing Troxel v. Granville, 530 U.S. 57, 67
(2000)). Further, courts have recognized that the “burden of litigating a domestic relations
proceeding can itself be ‘so disruptive of the parent-child relationship that the
constitutional right of a custodial parent to make certain basic determinations for the
child’s welfare becomes implicated.’” Troxel, 530 U.S. at 75 (citation omitted).
Indeed, in Hiller, we acknowledged the general benefits of relationships between
children and their grandparents, but concluded that such benefits do not always “accrue[]
in cases where grandparents force their way into grandchildren’s lives through the courts,
contrary to the decision of a fit parent.” Hiller, 904 A.2d at 886. We emphasized that
“[t]his consideration is especially resonant given the strain that custody litigation places
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on the children as well as parents and grandparents, as noted by Justice Kennedy in [his
dissent in] Troxel.” Id. at 886 n.20.
In D.P. v. G.J.P., 146 A.3d 204 (Pa. 2016), we addressed the importance of the
threshold determination of standing in custody proceedings. In that case, the paternal
grandparents filed a custody action against the parents of their grandchildren, seeking
partial physical custody of their grandchildren under 23 Pa.C.S. § 5325(2) (abrogated),
which allowed grandparents to seek partial or supervised physical custody of their
grandchildren if the children’s parents had been separated for at least six months, or were
involved in divorce proceedings. The parents in D.P. had been separated for
approximately two years, but had not initiated divorce proceedings, and they mutually
agreed that all contact between the children and the grandparents should be
discontinued. After the trial court issued an interim custody order granting shared legal
custody only to the parents, and directing that the grandparents have no contact with the
children, the parents filed a motion to dismiss the grandparents’ custody petition, alleging
that Section 5325(2) violated their constitutional rights to raise their children as they saw
fit. The trial court granted the motion, finding Section 5325(2) to be unconstitutional. On
direct appeal, we affirmed the trial court’s order granting the parents’ motion to dismiss,
concluding that Section 5325(2), which granted the grandparents standing to seek
custody solely on the basis of a parental separation of six months or more, was
unconstitutional, but could be severed from the remainder of the statute.
Relevant herein, in discussing the “segregation” of “grandparent standing
requirements from merits considerations,” we explained:
[W]henever there are contested issues relating to standing,
[Chapter 53 of the Domestic Relations Code] gives parents
the ability to bifurcate 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.
[J-27-2023] [MO: Brobson, J.] - 3
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.
146 A.3d at 213.
We further recounted in D.P. our prior recognition in Hiller of the “costs associated
with custodial litigation,” which include both financial costs, which can be particularly
detrimental for a parent struggling financially, and may ultimately undermine the parent’s
plans for the child’s future, as well as emotional costs, which include the strain that
custody litigation places on the children, parents, and grandparents. Id. at 213 n.15. We
noted that other courts have expressed similar concerns regarding the impact of custody
litigation. See, e.g., Conlogue v. Conlogue, 890 A.2d 691, 699 (Me. 2006) (“the burdens
of litigation are not solely financial, but include various forms of ‘pressures and stress’
that can pose a real threat to family well-being”); Hawk v. Hawk, 855 S.W.2d 573, 577 n.2
(Tenn. 1993) (recognizing that stresses in custody cases involving grandparents include
those which may arise from public disclosure of the details of private, inter-generational
disputes).
Notwithstanding the above, the majority suggests that, in relying on D.P., Parents
“seemingly ignore” that our discussion therein of the protection of parental rights occurred
“not in the context of an appeal from a trial court’s order concluding that a grandparent
has standing to file and pursue an action for partial physical custody . . . but, rather, in the
[J-27-2023] [MO: Brobson, J.] - 4
context of bifurcation of the issue of standing from any merits determination at the trial
court level.” Majority Opinion at 10 n.6. 1 It is true that the procedural backdrop of our
decision in D.P. may be distinct from the matter sub judice. However, in my view, the
majority disregards the relevant analysis.
As discussed above, this Court observed in D.P., as other courts have recognized,
that regardless of the ultimate decision on the merits, it is custody litigation itself which is
disruptive to the family and impinges upon parental rights. The majority is correct that
Parents will be able to appeal a final order of custody; however, at that juncture, Parents
(and Grandchildren) will have already been subjected to the expense, stress, and pain of
litigation. Accordingly, in this way, Parents’ rights will be irreparably lost if immediate
review is not permitted.
Finally, the majority acknowledges that its decision “may be inconsistent” with the
Superior Court’s decision in K.W. v. S.L., 157 A.3d 498 (Pa. Super. 2017). See Majority
Opinion at 16 n.8. In K.W., the trial court granted a child’s prospective adoptive parents
in loco parentis standing to file a custody complaint. The child’s biological father
appealed, and, prior to addressing the merits, the Superior Court considered whether the
trial court’s order was appealable under the collateral order doctrine. In concluding that
it was, the court determined that the father’s claim would be irreparably lost if postponed
until a final custody order was issued. The court reasoned:
Father has a fundamental constitutional right to parent [his
child]. This includes the right to be free of custody litigation
involving third parties. If we quash this appeal and remand to
the trial court, Father will be subjected to extensive litigation
involving Appellees, including a custody hearing and a second
appeal on the exact issue he now seeks to raise. Not only
would Father incur a substantial financial burden as a result
1The majority’s discussion of D.P., while brief, is more than what was offered by
Grandparents, who failed even to cite it in their brief.
[J-27-2023] [MO: Brobson, J.] - 5
of this litigation, but he could also lose months of time caring
for and bonding with [his child] as the custody hearing and
appeals process drags on.
K.W.. 157 A.3d at 504. 2
Certainly, the decisions of lower courts are not binding on this Court. That said, in
my view, the Superior Court in K.W. recognized, and succinctly explicated, what the
majority does not: that Parents’ claim will be irreparably lost if review of the trial court’s
order granting Grandparents standing is postponed until a final custody order is issued,
because Parents’ constitutional right to make decisions regarding their children, and to
be free of the expense, strain, and pain of litigation, will have already been burdened.
Accordingly, I dissent.
Justice Donohue joins this dissenting opinion.
2 The majority concludes that, while Parents “derive at least some of their arguments
relative to the irreparability prong” from the court’s reasoning in K.W., because the parties
did not address the applicability or continued viability of K.W. in their briefs, there is no
reason to disapprove of the Superior Court’s decision in K.W. at this time. Majority
Opinion at 16 n.8.
[J-27-2023] [MO: Brobson, J.] - 6