On this eve of National Grandparents Day (what, you failed to observe it?) in September, the Pennsylvania Supreme Court made a significant gift to grandparents (and great grandparents) in declaring in the action of Hiller v. Fausey that a portion of the recently adopted amendments to the Pennsylvania Domestic Code is constitutional.
The statute in question provides: “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 interests of the child and would not interfere with the parent-child relationship.”
In the Hiller case, the mother of the child who was the subject of the proceeding had suffered a prolonged battle with cancer, and for the last couple of years of her life her mother (the child’s grandmother) had been by to assist on a daily basis; inevitably, a close bond developed between the child and his grandmother. However on the death of the mother, the child’s father severely limited the contact the grandmother had with the child. Ultimately the grandmother petitioned the court for partial custody under the Act quoted above.
The child’s father in resisting the grandmother’s petition relied on a U.S. Supreme Court decision in Troxel v. Granville in which a Washington State statute which provided that “any person may petition the Court for visitation rights at any time, including . . . custody proceedings” was unduly broad and therefore violated the fundamental liberty interest parents have in the care, custody, and management of their children.
The Pennsylvania Court drew a sharp distinction between the Washington and Pennsylvania statutes because the class of people permitted to ask for custody or visitation is much more narrow under the Pennsylvania statute. The Court held thatthere is a “compelling state interest,” in protecting the health and emotional welfare of the child to consider before making its determination. The Court found it significant that the statute provides “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.”
In a previous case, In re Hernandez, the Pennsylvania Superior Court said that in dealing with the rights of third parties and natural parents ” . . . the evidentiary scale is tipped, and tipped hard, to the parents’ side.” (Emphasis supplied.) Though this was a reaffirmation of the law in Pennsylvania, the Supreme court in the Hiller decision found that the statute in question was narrowly tailored to apply only to grandparents and great grandparents and that grandparents’ increased roles in their grandchildren’s lives is to be encouraged.
In all custody litigation the subject child’s best interests are always paramount, and it appears that this was the major consideration in the Pennsylvania Supreme Court’s decision. The Court obviously wanted not to be bound by the U.S. Supreme Court’s ruling in the Troxel case; the facts in Hiller clearly illustrate the shortcoming of a rule which would have severed the child’s ties which had evolved between his grandmother and him during the most difficult time of his mother’s illness.
As anyone who has ever been a party to a contested custody battle will attest, there is rarely ever a clear-cut victor in these proceedings; typically, all parties leave the courtroom dissatisfied and more often than not angry. Enormous pressure is inevitably imposed upon the judge who decides who is to have custody or visitation as the parties vent their emotions which are understandably intense given what is at stake; the judge must anticipate how a child’s future will be best served, irrespective of the pitched battle between the litigants.
– Ken Butera