Law News

Justices to Decide if Grandparents are Favored in Custody Disputes

Superior Court has ruled they have 'preferred status'

by Danielle Rodier
Pennsylvania Law Weekly
November 2, 1999

Pennsylvania's Supreme Court is set to take on a case in which the Superior Court said for the first time that grandparents are favored over third parties in custody cases.

The case is also the first to interpret a 1996 amendment to the Custody and Grandparents Visitation Act -- a fact the foster parents' attorney relied on in her petition for allowance of appeal.

Grandparents have fared rather well in the their custody bids against third parties in the lower courts. The few cases to touch on the issue coming out of the high court seem to indicate their chances are just as good up there.

But the recent grant of allocatur to Martinez v. Baxter, PICS Case No. 99-0111 (Pa. Super. Jan. 22, 1999) Hester, J.; Joyce, J., dissenting (9 pages), opens the door for the justices to take the Superior Court's lead and make a general rule that grandparents have a natural advantage over third parties.

Prior Supreme Court decisions indicate that the justices are inclined to rule in favor of the grandmother in Martinez.

The last time the justices made a decision on standing in custody disputes, in In the Interest of G.C., PICS Case No. 99-1472 (Pa. July 22, 1999) Zappala, J.; Newman & Castille, JJ., concurring & dissenting; Nigro, J., dissenting (28 pages), the majority said foster parents do not have standing in custody proceedings.

Custody of the child was instead given to the grandparents.


Superior Court Judge John Hester wrote for the majority that decided Martinez at the intermidate appeal level.

Hester said Rita Martinez could seek custody of her grandson Tyler, although he had already been placed with foster parents who wanted to adopt him.

Grandparents' given right to standing to seek custody rights was found in 23 Pa.C.S. 5313(b), he said.

"This subsection is a clear mandate which allows a grandparent to seek custody, indeed to have standing to do so, over the status of third parties who have no familial relationship with a child," Hester said.

"We will not interpret this statute to deprive grandparents of this privileged status merely because CYS has stepped in before the grandparent has had an opportunity to assert her interest in raising her grandchild."

According to the opinion, Tyler was taken from his parents when he was 3 months old after he was rushed to the hospital and diagnosed as suffering from Shaken Baby Syndrome.

Huntingdon County Children and Youth Services obtained an emergency protective order to keep Tyler from going back to his parents.

Tyler's mother pleaded guilty to endangering the welfare of a child. With his parents' consent, Tyler was declared a dependent child and placed in a foster home. Rita was given visitation rights, but the foster parents planned to adopt Tyler.

Rita filed a custody petition in Huntingdon County Common Pleas Court, which was dismissed.

The trial court found Rita lacked standing because she did not meet all of the elements for when grandparents can petition for custody as outlined in Section 5313(b).

Those elements are:

If those factors are met, the grandparent must still prove it is in the child's best interests to have custody given to him or her, the trial court said.

Rita argued to the trial court that it was necessary for her to claim responsibility based on the mother's guilty plea to endangering the welfare of her child.

But the trial court found Tyler was no longer at a risk of harm because he was in the care of CYS.

PREFERRED STATUS Hester cited the same rule the trial court used to deny Rita standing in order to prove that she did have a preferred status in the custody battle.

"Grandparents occupy a favored position among other third parties in custody disputes," Hester said, quoting Wilder, Pa. Family Law Practice and Procedure.

He said the fact that Tyler had been declared dependent did not erase Rita's right to seek custody of a grandchild who was at a risk of harm from parental abuse.

"Otherwise, anytime CYS sought dependent status for a child, a grandparent's ability to seek custody of his grandchild would be negated, in clear opposition to the mandate of this statute," Hester said.

"Standing to petition for physical and legal custody pursuant to 23 Pa.C.S. 5313(b) is automatically conferred by virtue of the familial relationship, grandparent to grandchild."

Hester said he agreed with Rita's assertion that the statute was enacted to help grandparents gain custody of children who are abused by their parents.

Rita testified that she had a good relationship with Tyler and that she found it necessary to seek custody because his mother's rights had not been terminated and she could still try to be reunited with her son, posing the threat of future abuse.

The trial court's decision to dismiss Rita's complaint for lack of standing was wrong, Hester said, and she had the right to an evidentiary hearing to determine if it were in Tyler's best interests for her to be awarded custody.

Superior Court Judge Michael Joyce said in his one-page dissent that the trial court was correct in finding that Rita had not met the standards of the rule governing a grandparent's standing.

"The grandmother did not assume responsibility of the child prior to the child being adjudicated dependent," he said. "Furthermore, because the child was already taken out of the parents' home, the child was no longer at risk. The plain meaning of the statute does not provide for the grandparent in this case."

In her petition for allowance of appeal, Barbara S. Baxter boils the reasons the justices should hear the case down to one basic fact -- the case presented an issue of first impression regarding statutory construction.

In her petition for allowance of appeal, Barbara S. Baxter boils the reasons the justices should hear the case down to one basic fact -- the case presented an issue of first impression regarding statutory construction.

"Thus, the Superior Court has decided a question of substance not heretofore determined by the Supreme Court," the petition says.

Copyright 1999 NLP IP Company -- American Lawyer Media.