Thursday, November 15, 2007

Bills Proposed for Grandparents' Child Custody

On November 6, 2007, the Pittsburgh Tribune-Review published an article entitled "Grandparents may win rights in state", by Katen Roebuck, which noted "[g]randparents could get preferential treatment to rear grandchildren under a proposed state law."

The "grandparents rights bill" would require courts to consider giving grandparents legal custody when parents or guardians will not be granted the children.

Although it passed the House by a 181-11 vote last week, supporters and opponents disagree on how much preferential treatment grandparents would gain under the bill.
The PA House Bill under discussion is HB 1548, now in Printer's No. 2726. According to the legislative history of HB 1548, after passage by the House on October 29, 2007, it was introduced in the Senate on November 13, 2007, and then referred to the Senate Judiciary Committee.

Pennsylvania, among the states, had been labeled "the worst by far" by advocates for grandparental rights regarding grandchildren. See: "Courts giving grandparents a big say on visitation, custody issues", by Barbara White Stack, published June 22, 2003, in the Pittsburgh Post-Gazette.

Grandparents' rights were expanded in Pennsylvania with the enactment of the "Grandparents Visitation Act", 23 Pa.C.S. § 5311. It 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 interest of the child and would not interfere with the parent-child relationship. 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.
For an overview of the Act, see: "Grandparent Rights", posted by the Erie County Bar Association.

In 2006, the Act was upheld as to constitutionality by the Pennsylvania Supreme Court in Hiller v. Fausey, 904 A.2d 875 (Aug. 22, 2006; PDF, 24 pages), in the situation of "partial custody or visitation to grandparents upon the death of their child who is also the grandchild’s parent." A "concurring" opinion was filed by Chief Justice Cappy; and a "dissenting opinion" was filed by Justice Newman.

For a commentary on this decision, see: "Pennsylvania’s Grandparents’ Visitation Act is Constitutional, and Granting Maternal Grandmother Partial Physical Custody of Her Grandson After Her Daughter Dies Does Not Violate Father’s Constitutional Rights", posted by the Juvenile Law Center.

This expansion of grandparents' rights follows a national trend. See: "Recent legal rulings favor grandparents", by Joan Biskupic, published September 12, 2006, by USA Today.

But grandparents rights remain undefined in other situations, such as the setting of "juvenile dependency" proceedings. This was the setting of a much publicized case before Philadelphia's Family Court, where custody in caretaking grandparents of a five-year old child was denied. See: EE&F Law Blog posting, "Grandparents Lose in Child Dependency Case" (10/17/07).

That trial court's ruling is authorized by principles repeated in a PA Superior Court decision issued May 4, 2007, captioned In the Interest of B.S., Appeal of D.D. A three-judge panel of that Court held that a paternal grandmother of a child "did not have standing to participate in the child’s dependency proceedings."

The Superior Court cited the Juvenile Act, 42 Pa.C.S.A. §§ 6301-65, and cases decided under it, including In re L.J., 691 A.2d 520 (Pa. Super. 1999), and In re L.C. II, 900 A.2d 378 (Pa. Super. 2006), to support its holding. It reiterated:

This statutory section [§ 6336.1 "Notice and Hearing."] is silent regarding either the right to be heard or statutory standing for grandparents or relatives who at some time in the past served as primary caregiver for the child.
Particularly after that Superior Court decision and the Philadelphia trial court ruling,
powerful seniors' organizations, such as AARP, allied with other child welfare advocates, now seek expansion and clarification of grandparents' rights in child custody & juvenile dependency matters.

The recent article mentions the tension that is perceived to exist, however.

"I think it does clearly show a very strong lobbying effort to give grandparents a serious advantage," said Harry Gruener, assistant clinical professor at the University of Pittsburgh School of Law.

"They've always had that favored status, and they have it in every state."

Proponents say grandparents' interests generally are disregarded in custody cases. Critics, including Gov. Ed Rendell, say the bill puts grandparents' interests above children's.

The bill would give grandparents legal standing in custody cases, which no relative automatically has in Pennsylvania, according to Gruener and Randall Wenger, chief counsel of the nonprofit Pennsylvania Family Institute, a Harrisburg public policy group that suggested the law. * * *

Although state laws require the Department of Public Welfare to consider grandparents and other relatives while making custody recommendations, no relatives have legal rights to argue their cases in court, Gruener and Wenger said.

"This law is going to force (judges) to consider the grandparents," said Rep. William Kortz, D-Dravosburg, who co-sponsored the bill. The law would be good for children's psychological health by keeping intact at least some of their families, Kortz said. * * *

The article also reports that the Senate Judiciary Committee is expected to consider soon a somewhat similar bill, Senate Bill 515, which was introduced on March 19, 2007.

If the bill is approved by the Legislature in its existing form, there appears still to be some question as to its effect, reports the article, and this may prevent its signature by the Governor:

The proposed law is unclear about whether it gives grandparents first crack at custody over other relatives, Mackereth said.

Rendell's office and the Welfare Department said it does; Kortz and the Pennsylvania Family Institute said it does not.
Another article, entitled "Grandparent Rights, Capital Punishment Bills Proceed in Pa. Legislature", posted by the Associated Press on October 30, 2007, quoted Rep. Randy Vulakovich (R-Allegheny), a co-sponsor:

"We have recognized as a society that it's not always in the best interests of the children to be raised by their birth parents, such as in abuse and neglect."

"Sometimes the best candidates for caring for dependent children are overlooked — their own grandparents."