Grandparents' Custody and Visitation Rights

Introduction

This past year has been an exciting and encouraging one for grandparents seeking custody or visitation of their grandchildren.

In January, 2001, the Superior Court of Pennsylvania, in Birdie Lee Richards, Appellee v. Tammy Hepper, appellant v. Arthur J. Woodley, Appellee, 2000 PA Super 394, 764 A.2d 623, re-enforced the rights of grandparents to not only gain custody of their grandchildren, but also to relocate far from the biological parent in order to be near her family. The Court followed a strict Gruber analysis in the portion of its decision regarding relocation. Gruber v. Gruber, 400 Pa Super 174, 583A.2d434 (pa Super 1999).

In granting a grandmother primary legal and physical custody of her granddaughter, the Court affirmed the trial court’s proper application of the presumption that the biological parent has a prima facie right to custody and the grandmother had a heavy burden of production and persuasion, but they found that she carried them both. The court did not distinguish between the parents’ prima facie right over third persons, whether they be grandparents or other third parties. The scales tipped heavily in favor of the grandmother whereby the Court decided that the best interests of the child would be to grant custody to the grandmother. The trial court’s findings of fact were held by the Superior Court to be supported by the record.

Of course, all the other pre-existing conditions must be met first before a grandparent can petition the Court for custody pursuant to 23 PS 5313. A copy of the statute is attached to these materials.

According to the facts of this recent case, the grandchild had lived with the grandmother since she was 4 months old, the mother had lived at 13 separate addresses in 4 years, she did not visit her child, and couldn't be found in an emergency, had held a job as a housekeeper in a motel for the longest period of time for 2 ½ months and also had employment history as a nude dancer who gave massages while nude, according to the Pa. Superior Court’s recitation of the facts.

With regard to the father, who resided primarily in prison, he agreed with grandmother’s custody and did not appeal from the trial courts decision. It is interesting to note that the facts that the grandmother had lupus and received disability benefits did operate adversely or affect the court’s analysis.

The United States Supreme Court closely watched decision in Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054 does not provide any elaboration or guidance to state law on grandparents’ custody and visitation rights. It stands only for the proposition that biological parents are favored and only concluded that a state statute that provided that “Any person may petition the court for visitation rights at any time” was unconstitutionally broad.

Proposed Legislation Affecting Grandparents’ Visitation

This past year the legislature sought to give grandparents and great-grandparents the right to petition the court for visitation or partial custody of grandchildren of intact families. The Pennsylvania Bar Association opposed this proposed Senate Bill. SB 177 bill died in the Senate Judiciary Committee, fortunately. To date, the bill has not been re-introduced.