J-S16014-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    J.G. AND F.G.                              :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellants              :
                                               :
                v.                             :
                                               :
                                               :
    L.W.               Appellee                :
                                               :   No. 1833 MDA 2017

              Appeal from the Order Entered September 19, 2017
    In the Court of Common Pleas of Bradford County Civil Division at No(s):
                                 2017FC0096


BEFORE:      BOWES, J., MURRAY, J., and PLATT*, J.

MEMORANDUM BY BOWES, J.:                                FILED AUGUST 20, 2018

        J.G. (“Father”) appeals by permission the interlocutory order entered on

September 19, 2017, wherein the trial court dismissed his preliminary

objections to the custody complaint filed by L.W., the maternal grandmother

(“Grandmother”), against him and F.G. (“Mother”) seeking partial physical

custody of their now-seven-year-old son, P.M.G.1 We affirm.

        As there was no evidentiary hearing or findings of fact issued by the trial

court in this case, we gleaned the factual and procedural history from the trial

court’s opinion and the uncontested assertions leveled in the parties’

pleadings.     P.M.G. was born during 2010 of Father’s marriage to F.G.

(“Mother”). However, the marital relationship deteriorated and the parties


____________________________________________


1   Mother is not a party to this appeal.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S16014-18



subsequently divorced at some point prior to Grandmother’s initiation of this

custody litigation.     In the meantime, Father remarried and exercised sole

physical custody of his son under an informal arrangement with Mother.2

However, he permitted Grandmother to exercise partial physical custody of

P.M.G. on at least one weekend per month.

       On March 1, 2017, Grandmother filed a complaint against Mother and

Father seeking partial custody of P.M.G.         As it relates to this appeal,

Grandmother did not expressly assert standing under the then-applicable

version of § 5325 of the Child Custody Law, which we set forth in its entirety

infra.3 However, she referenced Mother and Father’s divorce by averring that
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2 Father claims in his brief that he maintains sole legal custody, but the
certified record does not corroborate that contention.

3 The General Assembly amended § 5325(2), effective on July 3, 2018, and
removed the references to the parents’ marital status. Under the relevant
portion of the newly-fashioned provision, grandparents have standing to seek
partial physical custody,

       (2) where the relationship with the child began either with the
       consent of a parent of the child or under a court order and where
       the parents of the child:

         (i) have commenced a proceeding for custody; and

         (ii) do not agree as to whether the grandparents or great-
         grandparents should have custody under this section[.]

23 Pa.C.S. § 5325(2), effective July 3, 2018.

The revised section does not include the divorce-related grounds for standing
that Grandmother asserts herein. Moreover, to the extent that Grandmother,
rather than Mother or Father, initiated the custody litigation, it does not



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Father is currently re-married and that Mother is single. Following the ensuing

custody conciliation conference, the trial court entered an interim order

providing Grandmother partial physical custody one Sunday per month

pending the custody trial.          Thereafter, on May 24, 2017, Father filed

preliminary objections to Grandmother’s complaint, wherein he challenged her

standing to pursue any form of physical custody of P.M.G.

       On September 19, 2017, the trial court entered an order that overruled

Father’s preliminary objections and certified that the order “involves a

controlling question of law as to which there is substantial ground for

difference of opinion and thus an immediate appeal . . . may materially

advance the ultimate termination of the matter.” Trial Court Order, 9/19/17.



____________________________________________


appear that Grandmother would have standing under the new provision had
she filed the complaint after July 3, 2018. However, our legislature did not
indicate that this amendment would apply retroactively. Significantly, the
legislative note to the newly-amended § 5324, which does not apply herein,
specifically advised that those changes “shall apply to all custody proceedings
irrespective of whether the proceeding was commenced before, on or after
the effective date of this section.” 23 Pa.C.S. § 5324 legislative note. A
similar note did not accompany the § 5325 amendments, and absent an
indication that the General Assembly intended a post hoc application of the
amended section, we do not invoke the alterations sua sponte in order divest
standing after the fact. See e.g., M.G. v. L.D., 155 A.3d 1083, 1087 n.5
(Pa.Super. 2017) (emphasis added) “while we have re-evaluated a party’s
standing following a factual change in circumstances, i.e., the termination of
parental rights or adoption, our review of Pennsylvania jurisprudence does not
support [an] ad hoc re-evaluation of standing . . . absent a determination
that the change in law applied retroactively.”




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Father filed a timely petition for permission to appeal with this Court, which

we granted on December 1, 2017.4

       Father presents a single issue for our review: “Does Section 5325(2) of

the Domestic Relations Code . . . violate . . . Father’s fundamental rights as a

parent by conferring standing upon a Grandparent to seek partial [physical]

custody based upon the fact that Father and Mother are divorced?” Father’s

brief at 4. Neither Mother, who has proceeded pro se throughout the litigation,

nor the Pennsylvania Attorney General’s Office filed a brief or offered any

indication of their respective view of Father’s constitutional challenge to the

applicable version of § 5325(2).

       We review a trial court’s determination regarding standing for legal error

or an abuse of discretion.        Butler v. Illes, 747 A.2d 943, 944 (Pa.Super.

2000). Standing in child custody cases differs from the typical determination

regarding whether a party has a direct interest in the outcome of litigation.

As this Court previously explained,

       In the area of child custody, principles of standing have been
       applied with particular scrupulousness because they serve a dual
       purpose: not only to protect the interest of the court system by
       assuring that actions are litigated by appropriate parties, but also
       to prevent intrusion into the protected domain of the family by
       those who are merely strangers, however well-meaning.


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4 Father complied with Pa.R.A.P 521(a) by providing notice to the Attorney
General of Pennsylvania of his facial challenge to the constitutionality of
§ 5325(2) and a copy of his petition for permission to appeal. The Attorney
General’s Office did not respond.


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D.G. v. D.B., 91 A.3d 706, 708 (Pa.Super. 2014) (quoting J.A.L. v. E.P.H.,

682 A.2d 1314, 1318 (Pa.Super. 1996)).

      In determining the constitutionality of a statute, our Supreme Court has

stated, “As the constitutionality of [a] statute presents a question of law, our

review is plenary.    A statute duly enacted by the General Assembly is

presumed valid and will not be declared unconstitutional unless it clearly,

palpably and plainly violates the Constitution. The party seeking to overcome

the presumption of validity bears a heavy burden of persuasion.” Schmehl

v. Weglin, 927 A.2d 183, 186 (Pa. 2007) (internal quotation marks and

citations omitted). In Commonwealth v. Smith, 732 A.2d 1226 (Pa.Super.

1999), this Court summarized the relevant analytical framework. Collecting

cases, we explained, “All doubts are to be resolved in favor of sustaining the

constitutionality of the legislation.” Id. at 1235 (citing Commonwealth v.

Blystone, 549 A.2d 81, 87 (Pa. 1988)). Indeed, “we are obliged to exercise

every reasonable attempt to vindicate the constitutionality of a statute and

uphold its provisions.” Commonwealth v. Chilcote, 578 A.2d 429, 435

(Pa.Super. 1990).    Most importantly, “one of the most firmly established

principles of our law is that the challenging party has a heavy burden of

proving an act unconstitutional [and] [i]n order for an act to be declared

unconstitutional, the challenging party must prove the act clearly, palpably

and plainly violates the constitution.” Commonwealth v. Barud, 681 A.2d

162, 165 (Pa. 1996) (internal quotation marks omitted).


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       The Child Custody Law in effect at the time Grandmother initiated this

litigation provided grandparents standing for partial physical custody and

supervised physical custody as follows:

       In addition to situations set forth in section 5324 (relating to
       standing for any form of physical custody or legal custody),
       grandparents and great-grandparents may file an action under
       this chapter for partial physical custody or supervised physical
       custody in the following situations:

           (1) where the parent of the child is deceased, a parent or
           grandparent of the deceased parent may file an action
           under this section;

           (2) where the parents of the child have been separated for
           a period of at least six months or commenced and
           continued a proceeding to dissolve their marriage; or

           (3) when the child has, for a period of at least 12
           consecutive months, resided with the grandparent or
           great-grandparent, excluding brief temporary absences of
           the child from the home, and is removed from the home
           by the parents, an action must be filed within six months
           after the removal of the child from the home.

23 Pa.C.S. § 53255 (emphasis added).

       In D.P. v. G.J.P., 146 A.3d 204 (Pa. 2016), our Supreme Court

addressed a due process challenge to § 5325(2) and concluded that the

portion of paragraph (2) that related to married parents who have been

separated     for   at   least   six   months    was   unconstitutional   because   it

impermissibly infringed upon a presumptively-fit parent’s fundamental right



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5 The statute also grants standing to great-grandparents; however, for ease
of discussion, we refer only to grandparents.

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to make decisions concerning the care, custody, and control of his or her

children. As it relates to the issue at bar, we note that the parents in D.P.

never initiated divorce or custody litigation, and they mutually agreed to end

paternal grandparents’ custody.

      The High Court began by outlining the constitutional constraints on

statutes that provide standing to grandparents to participate in child custody

proceedings.

             As reflected in our cases and in Troxel [v. Granville, 530
      U.S. 57 (2000)], Grandparent visitation and custody statutes
      authorize state action and, as such, they are subject to
      constitutional limitations. There is no dispute that Section 5325
      burdens the right of parents to make decisions concerning the
      care, custody, and control of their children; that such right is a
      fundamental one, and that, as such, it is protected by the
      Fourteenth Amendment’s due-process and equal-protection
      guarantees. In light of these factors there is also no disagreement
      that, to survive a due process or equal protection challenge,
      Section 5325 must satisfy the constitutional standard known as
      strict scrutiny.

D.P., supra at 210 (footnotes, some citations, and parenthetical information

omitted). The Court continued,

      The basic features of strict scrutiny, relating to whether the
      governmental action is narrowly tailored to a compelling state
      interest, see Hiller [v. Fausey, 904 A.2d 875, 886 (Pa. 2006)],
      are well established. As expressed in Schmehl, the inquiries per
      the Due Process and Equal Protection Clauses are distinct but
      overlapping: pursuant to the former, the government’s
      infringement on fundamental rights must be necessary to advance
      a compelling state interest, whereas under the latter it is the
      classification inherent in the statute which must be necessary to
      achieve that interest.

      Broadly speaking, the state, acting pursuant to its parens patriae
      power, has a compelling interest in safeguarding children from

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      various kinds of physical and emotional harm and promoting their
      wellbeing. That aim has been invoked to accomplish certain
      objectives where appropriate, such as involuntarily terminating a
      parent’s rights and providing a child with a permanent home. The
      component of the government’s parens patriae responsibility
      implicated here is its interest in ensuring that children are not
      deprived of beneficial relationships with their grandparents.

Id. at 210-211 (citations and footnotes omitted).

      Thus, as outlined by our High Court, there are presumptions that

parents act in a child’s best interest and that a fit parent has a fundamental

right to raise his or her children without governmental interference.

Accordingly, to be constitutional, the state’s interest in interfering with that

right must satisfy strict scrutiny as it relates to due process, i.e., 1) that the

state’s interest in upholding a child’s beneficial relationship with his or her

grandparents is compelling, and 2) that the grandparent standing provision is

narrowly tailored to effectuate that interest.

      In finding that the portion of the statute granting standing to the

grandparents of children whose parents were separated for at least six months

was unconstitutional, the High Court confirmed that the government had a

compelling interest in protecting the health and emotional welfare of children

under its authority as parens patriae. Id. at 211. However, applying the

constitutional constructs outlined in Schmehl, the Court determined that the

statute was not narrowly tailored to the desired interest.

      In Schmehl, the Supreme Court addressed the question of equal

protection in the context of divorced parents who disagreed as to whether the


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grandparents should exercise periods of partial custody.         Examining the

predecessor to § 5325(2), the Schmehl Court upheld the constitutionality of

a classification within a statute that conferred standing to grandparents where

parents separated or commenced and continued divorce proceedings.

Schmehl, supra at 189-190; 23 Pa.C.S. § 5312 (repealed effective January

23, 2011).     In that case, the children’s parents fashioned a custody

arrangement prior to divorcing. Five months after the divorce, the mother

objected to the paternal grandparents exercising periods of partial custody.

The paternal grandparents initiated custody litigation under § 5312, and the

mother countered that the section violated her due process and equal

protection rights under the Fourteenth Amendment because, inter alia, it

classified non-intact families and treated them differently.     The trial court

found § 5312 unconstitutional and dismissed the custody complaint

summarily.

      On appeal, the High Court determined that the classification was

intended to alleviate the harmful circumstances that arise when “the child’s

family environment has been disturbed.” Id. at 188. The Court stressed that

the classification was not simply “antagonism against non-intact families.” Id.

It recognized the state’s compelling interest in upholding the child’s wellbeing,

identified a heightened risk of harm that flows from the dissolution of the

marriage, and concluded that the statute was narrowly tailored to that

breakdown in that it provided standing to grandparents for visitation or partial


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custody only in limited circumstances. The Court explained that, based upon

the differences between the risks of harm to children of married and divorced

parents, the disparate classification was essential to the child’s wellbeing.

Accordingly, the Schmehl Court resolved, “[r]ecognizing the parens patriae

interest in the child’s wellbeing and heightened risk of harm arising from the

breakdown of marriage, the classification under Section 5312 is directly and

narrowly tailored to such breakdown, and only provides for visitation or partial

custody to a grandparent in limited circumstances[.]” Id. at 189.

      Focusing on the overlapping inquires implicated under the Due Process

and Equal Protection Clauses, the D.P. Court invoked the Schmehl Court’s

determination that the statutory classification of non-intact families was

justified to effectuate the state’s parens patriae interest in protecting children

from harm under the prior statute and whether the means were narrowly

tailored. The High Court applied the relevant portion of the Schmehl Court’s

equal protection analysis to determine that the infringement posed by

§ 5325(2) on fit parents who have separated for at least six months could not

satisfy strict scrutiny under the due process analysis.          The D.P. Court

reasoned:

      [W]e conclude that the fact of a parental separation for six months
      or more does not render that 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

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      independent basis for grandparent standing. Consequently,
      Section 5325 cannot survive strict scrutiny and, as such, it violates
      the fundamental rights of parents safeguarded by the Due Process
      Clause.

D.P., supra at 215-216. (citations and footnote omitted).

      Significantly, however, the High Court declined to address the second

portion of paragraph (2) that relates to parents who have commenced and

continued a proceeding to dissolve their marriage, i.e., divorce. It explained,

            As noted, paragraphs (1) and (3) of Section 5325, as well
      as the second half of paragraph (2), set out separate and distinct
      bases for grandparent standing that do not depend on the first
      half of paragraph (2), that is, on the parents having been
      separated for at least six months. Since these are not “essentially
      and inseparably connected with” the separation provision, they
      are capable of execution and may continue in force absent the first
      half of paragraph (2). Such provisions, moreover, are neither
      implicated by the underlying facts nor challenged by the parties.

Id. at 217.    Deflecting the dissenting justices entreaty to address the

constitutionality of the remainder of paragraph (2), which we address infra,

the Court reasoned,

      As concerns the second half of paragraph (2) in particular,
      invalidating it per the suggestion forwarded by Justices Baer and
      Wecht would require reaching beyond the bounds of this dispute
      and declaring Section 5325 unconstitutional more broadly than is
      necessary to resolve the appeal. It would be premature—and thus
      improper—to make a wide-reaching constitutional declaration
      along these lines in the present context in which no challenge to
      the standing requirements relative to divorced parents has been
      raised or briefed. We thus differ with any suggestion that we are
      somehow “avoiding” this issue.

Id. (citation omitted).




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      Justice Baer and Justice Wecht both filed a concurring and dissenting

opinion in which they separately concluded that the entire statute was

unconstitutional.   Id. at 217-221.    Justice Baer found that the remaining

portion of § 5325(2) was “not narrowly tailored in that it allows for

grandparents to force parents into court to litigate their custody decisions

without pleading (and proving) the harm to the child necessary to justify

infringement on a parent’s fundamental right.” Id. at 219.

      Justice Wecht framed the question as a potential equal protection

violation and argued that marital status is irrelevant as to when courts should

permit judicial intrusion upon the fundamental right of a fit parent. Justice

Wecht opined,

            Marital status – whether married, separated, or divorced—
      is not simply a crude or rough proxy for parental fitness. It is no
      proxy at all. . . . To maintain any portion of Section 5325(2) is
      to deny social reality, to consign roughly half the population to
      second-class status, and to stigmatize these citizens and their
      children. No portion of Section 5325(2) comports with the U.S.
      Constitution’s due process and equal protection clauses, nor with
      Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d
      49 (2000).

Id. at 221.

      Father’s argument blends the respective positions of both dissenting

Justices.   The crux of Father’s contention is that the D.P. Court’s analysis

regarding the unconstitutionality of the standing provision in relation to

separated parents applies equally to parents who have divorced. He contends

that Section 5325 burdens parents’ fundamental liberty interest in raising their


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children without satisfying the requirements of strict scrutiny, i.e., the

governmental action is not narrowly tailored to a compelling state interest.

He continues that, since he is presumed to be a fit parent, the state cannot

exercise its authority as parens patriae unless there is an indication that he is

not acting in the child’s best interests.       He reasons that where that

fundamental indication of unfitness is absent, the state’s interest in permitting

a grandparent to interlope on his right to decide with whom P.M.G. may

associate is diminished. For the following reasons, we disagree.

      At the outset, we observe that, although both of the dissenting opinions

provide persuasive rationales for extending the majority’s reasoning to

divorced parents and finding the entirety of § 5325(2) unconstitutional,

thereby reversing Schmehl expressly, neither Justice Baer nor Justice Wecht

garnered a majority of the votes. Hence, their well-reasoned perspectives did

not prevail, and to the extent that Schmehl is consistent with the majority’s

discussion in D.P., it remains authoritative precedent.

      Moreover, notwithstanding the ephemeral attraction of Justice Wecht’s

position that marital status is an improper measure of constitutionality, it is

obvious that the D.P. Court considered additional factors in deciding to

invalidate the first portion in § 5325(2).       Most importantly, the Court

considered the fact that the parents were unified in their opposition to the

grandparents’ custody rights and it balanced that joint decision against the

state’s infringement on the parents’ fundamental rights. See D.P., supra at


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215 (quoting Hawk v. Hawk, 855 S.W.2d 573, 557 (Tenn. 1993) (“[T]he trial

court’s interference with the united decision of admittedly good parents

represents a virtually unprecedented intrusion into a protected sphere of

family life.”)).

      Significantly, unlike the facts of the case at bar, D.P. concerned a

situation where grandparents based their attempt to undermine the married

parents’ unified decision on the sole fact that the parents had remained

separated for at least six months. As it related to that dynamic, the High

Court accurately recognized that the ability of the parents to reach a joint

decision on such an important issue as third-party custody was evidence that

a basis did not exist to “disturb the ordinary presumption . . . that fit parents

act in their children’s best interests.” Id. at 207. Phrased differently, the

Court later reiterated, “where there is no reason to believe presumptively fit

parents are not acting in their children’s best interests, the government’s

interest in allowing a third party to supplant their decisions is diminished.” Id.

at 214.

      Conversely, the Court observed that where parents are incapable of

reaching a unified agreement regarding the involvement of grandparents, the

presumption that they both are acting in their children’s best interests is

reduced. Id. at 212 (“The breakdown in unified parental decision making [is]

more severe in Schmehl than it is . . . where [p]arents . . . are able to co-

parent in agreement.”).      Indeed, as the D.P. Court recognized, in this


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situation, the state’s interest in preventing potential harm due to the severing

of the grandparent-child relationship is heightened.

      Instantly, no agreement exists between Mother and Father in relation to

whether Grandmother should exercise partial physical custody of P.M.G. In

this vein, as opposed to the facts of D.P., the present case aligns with

Schmehl, which addressed the identical scenario where divorced parents did

not agree to permit grandparent custody.

      Further, as it relates to the significance of the fact that Mother and

Father are divorced, D.P. highlighted factors that distinguished the portion of

§ 5325(2) relating to divorce from the unconstitutional provision concerning

mere separation. Notably, as to the latter scenario, the Court referenced prior

decisions that acknowledged the existence of empirical studies reflecting

objective evidence of harm caused to children of divorce, but it indicated that

similar data did not exist in relation to separation. See D.P. at 211-212 citing

Schmehl, supra at 189 n.9 (scholarship addressing effects of divorce on

children) and at 188–89 (prior judicial expressions regarding impact of divorce

on families). The D.P. Court explained, “we cannot assume that any empirical

studies relating to the effects of divorce carry over to mere separation.” Id.

at 212.   Hence, the D.P. Court’s analysis specifically recognized a more

compelling state interest in protecting children involved in divorce proceedings

as opposed to children of married parents who are merely separated. Id. at

215 (“Although separation may involve a disruption of the nuclear family unit,


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the children are often shielded from having to participate in court proceedings

and are, likewise, free from having to assimilate the knowledge that the

government is now involved in their family life.”).

      In addition, D.P. highlighted the increased level of government

involvement in divorce proceedings as opposed to separations. It noted that,

since separations do not always lead to divorce and the collateral economic

and custodial consequences that are inherent in the dissolution of a marriage,

courts are not necessarily involved in the family affairs of separated parents.

Indeed, unlike families of divorced parents, non-intact families with separated

parents may avoid contact with the court’s entirely. Accordingly, as previously

mentioned, the children in these families are typically shielded from the harms

associated with the dissolution of the marriage. Id. at 212.

      In contrast, by filing for divorce, parents expressly request the court’s

involvement, and create the attendant harm to children that is supported by

empirical data. As government involvement and oversight is more significant

where divorce proceedings have been commenced than where the parents

merely separate, the governmental interest is greater and implicates a

heightened state interest in protecting children of divorce proceedings as

opposed to children of separation.       Thus, the D.P. Court’s strict scrutiny

analysis relating to the constitutional infirmity of the portion of § 5325 relating

to separated parents does not align with this divorce case as easily as Father

contends.


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      In sum, Father did not establish that the statute “clearly, palpably and

plainly violates the constitution.”      Barud, supra at 165.          As D.P.

acknowledged, significant differences exist between grandparent standing

based upon parental separation of at least six months and standing based

upon the parents’ divorce, including empirical evidence of harm, which has

not been similarly documented in children of separation. Likewise, divorced

parents have requested court involvement and oversight in their family’s lives

where separated parents did not.          Finally, although unrelated to the

divorce/separation dichotomy, D.P. recognized that the state’s interest in

protecting children by promoting the grandparent-child relationship is greater

where, as here, the parents are unable to make a unified decision as to the

nature and extent of the child’s relationship with the grandparent.

      Guided by the premise that the statute is presumptively constitutional,

and the D.P. Court’s express refusal to invalidate § 5325(2) in its entirety or

overturn its earlier reasoning in Schmehl that the state has a heightened

state interest in protecting children of divorce, we uphold the constitutionality

of the portion of § 5325(2) that granted standing to grandparents in cases

where parents commenced and continued a proceeding to dissolve their

marriage. Stated plainly, insofar as the statute did not disturb the decision of

presumptively fit parents unless they have invited state action by initiating

divorce proceedings, the provision was narrowly tailored to the compelling

governmental interest of protecting children of divorce.


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     Order affirmed.

     Judge Murray and Judge Platt concur in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/20/2018




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