Katie L. Ranker
ABSTRACT
The rights of fit and loving parents are consistently being infringed upon under Pennsylvania’s arbitrary grandparent visitation law and its mistreatment of divorced parents. Section 5325(2) of Pennsylvania’s Domestic Relations Code provides standing for grandparents to file for partial physical custody and supervised physical custody of their grandchildren “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.”
While grandparents’ rights to visitation have been challenged before the Pennsylvania Supreme Court on several occasions, none of these challenges had yielded a successful result until D.P. v. G.J.P. was decided in 2016. In D.P., the court held that the first half of Section 5325(2), which confers standing on grandparents where the child’s parents have separated, unconstitutionally infringes on the parents’ fundamental rights safeguarded by the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution. The outcome of this holding was to sever the first half of Section 5325(2) from the second half, which confers standing to grandparents where the child’s parents have commenced divorce proceedings. Therefore, the second half of Section 5325(2) remains in effect.
This Comment will first examine the history of grandparents’ rights to file for visitation in both the United States and in Pennsylvania, including a review of relevant case law and statutes. Second, this Comment will review the Pennsylvania Supreme Court’s analysis in D.P. and will explore the court’s reasons for invalidating the first half of Section 5325(2). Finally, this Comment will analyze the constitutionality of the second half of Section 5325(2). This Comment concludes that Section 5325(2) violates both the Due Process and the Equal Protection Clauses. Therefore, the second half of Section 5325(2) should be repealed and replaced with legislation that is consistent with D.P. and complies with the U.S. Constitution.