Grand-Parent Visitation

A. Introduction

Grandparents when filing a custody complaint must allege standing in order to seek
relief that can be provided under 23 Pa.C.S.A 5324 or 5325. Pursuant Pa.C.S.A. § 5325;
Grandparents must allege that 1) either of the natural parents are deceased, 2) the natural parents
have commenced and continued a proceeding to dissolve their marriage or 3) children resided
with the Grandparents.
If the natural parents are separated, the Supreme Court in D.P. v. G.J.P. 146 A.3d 204
(2016) held that the fact of a parental separation for six months or more does not render the
state\’s parens patriae interest sufficiently pressing to justify potentially disturbing the decision of
presumptively fit parents concerning the individuals with whom their minor children should
associate. It follows that the infringement upon parental rights worked by Section 5325 is not
narrowly tailored to a compelling governmental interest, as the provision could have been drafted
to exclude separation as an independent basis for grandparent standing.
Absent factors such as abuse, neglect, or abandonment, the law presumes parents are fit
and, as such, that their parenting decisions are made in their children\’s best interests.
See Parham v. J.R., 442 U.S. 584, 602–03, 99 S.Ct. 2493, 2504, 61 L.Ed.2d 101 (1979); Troxel, 530 U.S. at 68, 120 S.Ct. at 2061. Parents have a fundamental right to direct the care, custody, and
control of their children, thus triggering strict scrutiny under the Due Process Clause. Especially
in cases when natural parents have never sought Court involvement.

Whenever a custody dispute arises between the parents and a third party, “the evidentiary
scale is tipped, and tipped hard, to the parents\’ side.” Hiller, 588 Pa. at 362, 904 A.2d at 887
(quoting Ellerbe, 490 Pa. at 367, 416 A.2d at 514); see also id. at 363, 904 A.2d at 888
(developing that this Court has repeatedly “reaffirmed the presumption in favor of parents set
forth in Ellerbe”); accord Charles v. Stehlik, 560 Pa. 334, 340, 744 A.2d 1255, 1258 (2000).

B. Lack or Standing Rule 1915.5

If a Grandparent files a petition seeking custody and they fail to meet the requirements of
23 Pa.C.S.A 5324 or 5325; Parents’ counsel would file Preliminary Objections based on a lack of
Pursuant to Rule 1915.5 (a) \”A party must raise any question of jurisdiction of the person
or venue, and may raise any question of standing, by preliminary objection filed within twenty
(20) days of service of the pleading to which objection is made or at the time of hearing,
whichever first occurs.\”
The Court should address the issue of standing first to protect Parents against the
expense, stress, and pain of litigation. Grandparents have the burden of demonstrating standing
first before seeking relief or pursuing their claim.

C. Violation of Rule 1023.1

Rule 1023.1(c), which provides in pertinent part that the “signing, filing, submitting or

later advocating [of] a document, the attorney or pro se party certifies that, to the best of [his]
knowledge, information, and belief” that the document “is not being presented for any improper
purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of
litigation.” Pa.R.C.P. 1023.1(c)

Therefore, it is imperative that a Grandparent satisfy the statutory requirements of 23
Pa.C.S.A 5324 or 5325 or the Grandparents may be Ordered to pay the Parents’ attorney’s fees if
the Court finds that the Grandparents filed the petition for an improper purpose.

D. 42 Pa.C.S.A. 2503

Sub-section 2503(7) of the Judicial Code provides: “The following participants shall be
entitled to reasonable counsel fees as part of the taxable costs of the matter: … (7) Any
participant who is awarded counsel fees as a sanction against another participant for dilatory,
obdurate or vexatious conduct during the pendency of a matter.” 42 Pa.C.S. § 2503(7). Our
Commonwealth Court has stated, “[A]n award for counsel fees under Section 2503 is meant to
compensate the innocent litigant for costs caused by the actions of the opposing party.

E. Conclusion

There is no doubt that Grandparents play a vital role in the lives of their grandchild.
However, Grandparents need to retain competent and experienced counsel to navigate them
though the complexities of the legal system.
As an attorney with 23 years trial experience and 3 law degrees; I provide my clients with
the confidence that they as Grandparents are doing everything possible to be involved in their
grandchildren’s lives.

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