J.K. v. C.K. v. A.M.U. & G.U. Appeal of: J.K.
441 MDA 2017
| Pa. Super. Ct. | Sep 27, 2017Background
- Father (J.K.) and Mother (C.K.) are parents of two children; custody disputes began after separation and divorce proceedings initiated in 2013–2015.
- Trial court initially granted Father primary physical custody and various supervised visitation rights to Mother; orders were modified several times, ultimately preserving Father’s sole legal and primary physical custody.
- Maternal grandparents (A.M.U. and G.U.) moved to intervene and sought partial custody/visitation under 23 Pa.C.S. § 5325(2), invoking two bases: (a) parents had been separated for six months, and (b) parents had commenced dissolution proceedings.
- After the Pennsylvania Supreme Court decided D.P. v. G.J.P. (holding the “separated six months” clause unconstitutional), Father moved to dismiss Grandparents’ petition as lacking standing. The trial court denied the motion to dismiss; Father appealed.
- The Superior Court affirmed the trial court’s order but did so on different grounds: Father failed to comply with Pa.R.C.P. 235 by notifying the Pennsylvania Attorney General of his constitutional challenge, so his constitutional attack was waived.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 23 Pa.C.S. § 5325(2) (the clause allowing grandparents to sue where parents "have commenced and continued a proceeding to dissolve their marriage") is unconstitutional | Father: § 5325(2) (as applied to parents who commenced divorce proceedings) is unconstitutional and thus grandparents lack standing | Grandparents: Their standing remains valid under the divorce-proceeding branch of § 5325(2); Father’s challenge is untimely or waived | Court: Father waived the constitutional challenge by failing to notify the PA Attorney General under Pa.R.C.P. 235; appeal dismissed on that preservation ground |
| Whether Father’s appeal or motion to dismiss was untimely (challenge to timeliness/appealability of intervention order) | Father: He timely sought dismissal after D.P.; the August 24, 2016 intervention order was not a final appealable order and he acted diligently | Grandparents: Father should have appealed earlier from the August 24 order | Held: Father’s appeal was timely; Grandparents’ timeliness argument lacked merit because Father moved promptly after D.P. and before merits were reached |
Key Cases Cited
- D.P. v. G.J.P., 146 A.3d 204 (Pa. 2016) (invalidated § 5325(2) insofar as it permitted standing based solely on a six-month parental separation and cautioned against deciding broader constitutional questions without AG notice)
- K.C. & V.C. v. L.A., 128 A.3d 774 (Pa. 2015) (orders denying intervention in custody matters may be collateral, appealable orders)
- Schmehl v. Weglin, 927 A.2d 183 (Pa. 2007) (standard of review and presumption of validity for statutes in constitutional challenges)
- Potts v. Step By Step, Inc., 26 A.3d 1115 (Pa. Super. 2011) (failure to notify Attorney General under Pa.R.C.P. 235 waives constitutional challenge)
- Rigler v. Treen, 660 A.2d 111 (Pa. Super. 1995) (termination of a parent’s rights does not automatically bar grandparent standing)