                            [J-53-2016] [MO: Saylor, C.J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                           WESTERN DISTRICT DISTRICT


D.P. AND B.P., HIS WIFE,                        :   No. 25 WAP 2015
                                                :
                      Appellants                :   Appeal from the Order of the Court of
                                                :   Common Pleas of Westmoreland
                                                :   County dated September 8, 2015 at No.
              v.                                :   1750 of 2014-D.
                                                :
                                                :   ARGUED: April 5, 2016
G.J.P. AND A.P.,                                :
                                                :
                      Appellees                 :



                          CONCURRING/DISSENTING OPINION


JUSTICE WECHT                                       DECIDED: SEPTEMBER 9, 2016
       The majority’s decision relies, in part, upon the fact that the “Parents have never

sought court involvement in their family issues and are able to co-parent.” Maj. Op. at

12.   Our courts and our law should foster and encourage efforts such as those

undertaken here by the parents to co-parent and to resolve differences amicably

regarding their children.    Whether or not divorce is sought or contemplated, when

consensus on child custody can be reached, judicial intrusion upon the fundamental

right of fit parents to raise their children must be curtailed, lest that intrusion run afoul of

our Constitution.

       I join the learned majority’s ruling invalidating the portion of 23 Pa.C.S. § 5325(2)

that purports to authorize third party intrusion into decision-making by fit parents merely

because those parents are separated. I dissent respectfully from the majority’s decision
to leave untroubled the remainder of that provision, which approves identical third party

intrusion merely because otherwise fit parents happen to be divorced or divorcing.

       The majority’s distinction between separated and divorced parents permits it to

distinguish Schmehl v. Wegelin, 927 A.2d 183 (Pa. 2007), without overruling it. The

distinction is unconvincing.       Here, the parents are separated, and agree regarding

grandparent contact with the children. In Schmehl, the parents were divorced, and did

not agree regarding grandparent contact. This is a thin divergence upon which to rest a

differential and consequential classification of fundamental liberty interests. Suppose,

for example, that the parents here did invoke court involvement, or do so next month or

next year. What then?       Application of the divorced/separated dichotomy becomes

problematic,   the   distinction     opaque.    Every    year,    thousands   of   separated

Pennsylvanians seek court intervention, whether in support, in custody, or in protection

from abuse. Judicial involvement emphatically is not limited to divorcing or divorced

parents. No divorce filing is required for entry into family court.

       Try as I might, I cannot conclude that the statute’s problem can be as neatly

delimited as the Majority provides.1 I find untenable and archaic Schmehl’s holding that

divorce, without more, suffices to permit outside intervention in the child-rearing

decisions of otherwise fit parents, and its resulting decision to uphold the constutionality

1
        The Majority cites the sound principle that, “when confronting a constitutional flaw
in a statute, we try to limit the solution to the problem.” Maj. Op. at 20 (quoting Ayotte v.
Planned Parenthood of Northern New England, 546 U.S. 320, 328 (2006)). Because I
cannot discern a principled constitutional distinction between divorced and separated
couples in the context of the right to parent (and a child’s right to a parent), I must
disagree with the Majority’s severability analysis. Because the due process and equal
protection clauses do not countenance discrimination between (or against) separated
and divorced parents, the two prongs of Section 5325(2) are intertwined and
inseparable. Under these circumstances, it is unlikely that the General Assembly would
have intended to confer standing upon grandparents within the context of divorce while
declining to do so within the context of separation. See 1 Pa.C.S. § 1925.



                             [J-53-2016] [MO: Saylor, C.J.] - 2
of 23 Pa.C.S. § 5325(2)’s predecessor statute in its entirety. As written, the statute

discriminates between married and divorced parents, impermissibly and arbitrarily

authorizing a heightened level of state or third party intervention with respect to the

latter when there is no compelling reason to discriminate between the two categories.

See Schmehl, 927 A.2d at 193 (Cappy, C.J., dissenting), and 195-96 (Baldwin, J.,

dissenting).

       Marital status -- whether married, separated, or divorced -- is not simply a crude

or rough proxy for parental fitness. It is no proxy at all. At this late date, I would think

that our courts, if not our legislature, had moved beyond assumptions and biases

against divorced parents, most of whom strive in the face of adversity to be the best

parents they can be. To maintain any portion of Section 5325(2) is to deny societal

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 (2000).




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