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PA High Court Affirms Rights of Grandparents
by Susan M. KeyThe Pennsylvania Supreme Court recently upheld the constitutionality of a Pennsylvania statute that governs the rights of grandparents to have partial custody or visitation with a grandchild upon the death of the grandchild's parent where the deceased parent is the grandparent's child. In doing so, the court recognized that what is in the child's best interest may conflict with the fundamental rights of a surviving parent to determine the care, custody and control of their own child. The statute in question is limited in its scope and does not extend custody rights to every grandparent. 23 Pa.C.S.§5311 states: "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." The case before the court involved an eight year old boy whose mother had died of cancer. After the mother's death, the father of the child abruptly denied the maternal grandmother contact with the child despite her repeated attempts. The grandmother then sued for partial custody under the above statute. The trial court granted her partial custody one weekend per month and one week each summer. The father challenged the grant of partial custody of his son and challenged §5311 as an infringement upon a parent's fundamental rights. The right to make decisions concerning the care, custody and control of one's children is one of the oldest fundamental rights protected by the Due Process Clause of the Constitution. Courts have allowed infringement on parental rights only where the welfare of the child is at stake. In the case reviewed by the Supreme Court, the trial court carefully considered the contact between the child and the grandmother prior to her petition for custody and found the child had frequent contact with this grandmother. In fact, grandmother regularly transported the child to and from school and cared for him as his mother battled cancer for years, attended doctor's appointments or was too ill to care for him. Furthermore, the trial court found the grandmother and child enjoyed spending time together and showed a great deal of affection toward one another. In addition, the court found that without a court order, the father would not provide grandmother the opportunity to see the child. The justices concluded the grandmother had met her burden of demonstrating that partial custody would be in the child's best interests and would notinterfere with the parent-child relationship. The Pennsylvania Supreme Court found the statute in question was narrow enough to protect the fundamental rights of parents and upheld the statute. Although a presumption exists in favor of a parent making decisions concerning custody of his child, the grandmother had established that contact with her was in the child's best interest. As a result, the court upheld the grant of partial custody to the grandmother and recognized the beneficial role of grandparents in the grandchildren's lives. |
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