Hiller v. Fausey

904A.2d 875 Cheryl HILLER, Appellee FAUSEY, Appellant. Shane Supreme Pennsylvania. Court of

Argued May 2005. Aug. Decided Grove, Fau- Bashman, for Jonathan Willow Shane Howard sey, appellant. Vice, IN, for Bloomington, Anne Pro Hac Wyle,

Karen Rights, of Parental appellant for the Restoration Coalition amicus curiae. Gonzalez, for Philadelphia, Momjian, Natasha

Mark Albert Hiller, appellee. Cheryl AARP, Wase, amicus appellee Philadelphia,

Ellen Ruth curiae. Buck,

Karen Kimberly Coleen Krzyzaniak; J. Alan Stephen Feldman, Jenkintown, Center, al., for Senior Law et appellee amici curiae. CAPPY, C.J.,

BEFORE: CASTILLE, NIGRO, NEWMAN, SAYLOR, BAER, EAKIN and JJ.

OPINION Justice BAER. granted

This Court allocatur this matter to determine the constitutionality of a trial court’s application Pennsylva- nia’s governing statute the provision partial visitation to grandparents upon the death of their child who is also the grandchild’s parent, 23 § Pa.C.S. 5311.1 Superi- or Court held that the trial application court’s was constitu- n tional. We affirm. (Father)

Shane Fausey has challenged partial the grant of son, (Child), of his custody Fausey Kaelen eight, then age Hiller, (Grandmother). Cheryl grandmother Child’s maternal (Mother) Child lived with his mother and Father from his birth in 1994 until his mother in died 2002 after May battling years. cancer for death, several Prior to Mother’s Child had frequent Grandmother, contact with especially during last illness, years two of his they mother’s when each other on saw almost daily an basis. Grandmother transported often Child to and from school and cared him when Mother attended appointments doctors’ or Further, was too ill to provide care. Grandmother took on the task preparing Child for Mother’s death. trial court found credible the testimony Child § parent 1. 5311. When deceased parent deceased, If a of an parents grand- unmarried child is or parents parent granted partial deceased reasonable both, custody rights, or visitation or to the unmarried child upon finding both, partial custody court rights, or visitation or would be in best interest of the child and would not interfere with parent-child relationship. The court shall consider the amount personal contact between the of the de- prior application. ceased and the child §

23 Pa.C.S. together, time showed spending enjoyed and Grandmother another, a very one and shared affection deal of toward great relationship. close death, however, denied abruptly Father Mother’s

After Child, re- Grandmother’s despite contact with Grandmother time Child. request to call Father and attempts peated 2003, Grand- April in 2002 and May Between Mother’s death three occasions when Child was only mother saw Child relatives.2 visiting other maternal situation, Grandmother

Eventually exasperated with 5311. The court partial custody filed for Section pursuant April following temporary partial custody her granted conference, filed for after Father a non-record which activities, the court pre-trial modification. After extensive conclusion, the hearing July 2003. At its two-day held a custody one weekend granted partial trial court Grandmother each per month and one week summer.3 decision, the trial thorough of its opinion support its In compliance of Section 5311. explained application

court its in Troxel v. Supreme the United States Court’s decision Granville, (2000), 120 S.Ct. 147 L.Ed.2d U.S. infra, applied presump- in detail trial court discussed best interests. Fur- tion that fit acts the child’s ther, seeking compel the court noted that proof. custody carries the burden partial established, court the trial examined premises With these As Section specifically required the facts the case.

the court first considered the contact between Child First, prior petition. Grandmother Grandmother’s significant permitted court noted that Child’s had death, to Mother’s and that a prior contact with Grandmother relationship apparently continue with his 2. Father allowed Child’s great-grandfather (Great-grandfather) Child with whom also maternal very strong relationship. had a order, given temporary the trial court had Grandmother 3. In its order, provision, Day. on Christmas In its final it omitted time noting spent parent. that is with a Christmas best strong and relationship affectionate had formed between Child and Grandmother. Troxel,

Next, in accordance with the court considered the likelihood and amount contact Father provide would discussed, Grandmother absent a court order. As previously only Grandmother had seen Child three times May between Moreover, April court, 2003. to the trial according Father’s position acceptable partial custody or visitation changed during the course dramatically- proceedings.4 After custody conference, one Father agreed peri- limited ods of partial custody overnight stays. without month One later changed he his mind and asserted Grandmother should not be provided any court-ordered visitation. Father changed position trial, his yet again he at where stated that he would one permit partial custody month day per without overnight stays. Parenthetically, the court also Fa- found ther’s various accusations regarding his concern’s for Child’s safety in Grandmother’s care lacking credibility and devoid of evidentiary support: “Given fact that none of these merit, any concerns have the court must conclude that either is grasping inventing [Father] at straws and to keep reasons away grandmother, from actually [Child] his or he believes the allegations, which shows he under serious delusions con- cerning judgment and his her [Grandmother] regarding polluted.”5 Tr. 5. Slip Op. Accordingly, Ct. at ample Although parties 4. and the below occasionally courts have used the interchangeably, Pennsylvania distinguishes terms we note that law "partial custody” party § from See "visitation.” 23 Pa.C.S. A 5302. granted may "visitation” visit a child but remove parent's Conversely, grant from the "partial custody,” control. Id. bar, as in possession the case allows the individual to "take control of child” can potentially periods involve extensive time. The Supreme many Id. United States Court in Troxel and courts of our sister have states utilized the term "visitation” to encom- pass partial custody Pennsylvania. both visitation and as defined in Therefore, discussing when the Troxel decision and those of sister our courts, will genetically. we use the term "visitation” further, supported noting The court its conclusion Father’s similar Great-grandfather. treatment of noted: .court testimony own personal [Father’s] demonstrated that he allows his

feelings judgment regarding to cloud over his [Child’s] contact that, absent court the trial court concluded factual support, the order, opportunity not Grandmother provide Father would to see Child. that the requirement turned to the

The court then statute’s with Grandmother partial custody that visitation or court find interests, when the applying be in the child’s best even would is in the limiting that contact parent’s decision presumption proposed that Father’s best interests. The court found child’s time to day enough of one month “is arrangement per grandmoth- his maintain the bond has established with [Child] his family, especially given er her extensive and side Op. Specifically, Tr. at 6. past.” Slip contact Ct. is and and has loving

court noted that Grandmother warm Child, “longstanding, very relationship” close with developed her, enjoyed spending engaging and that time with Child her, many maternal visiting with and his many activities with during that occur during family gatherings relatives Tr. at 6. periods Slip Op. court-ordered Ct. partial custody. is with Significantly, [Child] court observed “when [Grandmother], re- support emotional he seeks receives Op. his 6. This garding Slip the death of mother.” Tr. Ct. at himself ex- resonant because finding particularly “[Father] his regarding ability express concerns pressed [Child’s] Op. his Tr. at 6. regarding Slip emotions mother’s death.” Ct. Thus, concluded, the court “contact with his mother’s side of emotionally help- beneficial family highly [Child] Slip Op. Tr. Ct. ing him deal with the loss his mother.” instance, parties agreed family. [Great- For [Child] his all extremely grandfather] relationship, and in fact [Fa- have an close frequent [Mother's] the two contact after ther] ensured remained However, [Great-grandfather] perturbed at [Father] death. became longer throughout proceedings, testified that he no court, being questioned clear that Upon him. was trusted only personal [Great-grandfather] involved mistrust [Father’s] men, nothing relationship between and had to do with the the two However, relationship [Great-grandfather]. [Child] [Fa- between [Great-grandfather] clearly allowing anger his toward ther] was [Great-grandfather.] relationship [Child's] interfere Slip Op. at 4-5. Tr. Ct. statute, As dictated the trial court next considered whether partial custody court-ordered would interfere relationship with Father’s argued with Child. Father that it would interfere because the animosity between Grandmoth- .him, which, noted, er and he had to the legal proceedings. led however, court, The trial aptly commented: If the mere existence animosity dislike between to enough prevent grandpar- were ent custody, surely very there would court ordered few periods all, of grandparent custody. For after if the parties able get along were together, they would not be in court begin with. Instead, Op. Tr. Slip Ct. distinguished 7. court case from those grandparent partial custody where would have either distressed the child or adversely impacted the parent’s Moreover, ability parent him. the court found credible Grandmother’s assertion that she would express negative Child, feelings about Father to or create a situation that would negatively The court impact expressed Child. also confidence that Father would not let his animosity toward Grandmother Child, cause harm to as the court found it clear that Father was a capable father who Additionally, loved his son. court noted that there had been no problems incidents of the visits thus far. court

The therefore found that Grandmother had her met of demonstrating burden partial custody would be best Child’s interests and would not interfere the parent- relationship, thereby, had rebutted presumption that Father’s decision limiting eliminating Grandmother’s contact with Child was Child’s best interests. Tr. Slip. Ct. at 8. court Op. The thus granted partial custody to Grand- mother one per weekend month and one week summer.6 per timely Court,

Father appealed to the Superior asserting that the application of the statute violated his due substantive process rights under the Fourteenth Amendment to the Unit- court unavailing also addressed and found Father’s constitutional challenges to Section 5311. These issues will be discussed in detail

infra. panel published opinion, In a States Constitution.7 ed United Su acknowledged that States Superior Court8 that the Due held, “it be doubted recently cannot Court preme protects Amendment of the Fourteenth Process Clause concerning right of to make decisions fundamental Fausey Hil their care, control of children.” custody, and Troxel, 530 ler, (quoting (Pa.Super.2004) 851 A.2d 2054). Given U.S. at S.Ct. scrutiny analysis Superior utilized strict Court

parents, funda imposition parent’s and considered whether state necessary promote compelling mental was that interest. narrowly tailored to effectuate interest and was Id.9 Penn its analysis comparing

The Superior began Court Washington statute which statute to State sylvania’s ap found unconstitutional as Supreme United Court States 196. The found Fausey, Troxel. 851 at court plied in A.2d “readily in case application its this Pennsylvania’s statute and Moreover, the from the in Troxel.10 distinguishable” situation Pennsylvania trial court complied court held that the petitioning the on the by placing proof burden of precedent of fit the to the decisions grandparent given due to deference that trial the Finally, Superior the Court concluded parents.11 Equal challenge under also asserted a facial to the statute the 7. Father Clause, single asserting the children of Protection that statute treated parents differently parents without a sufficient than children of married challenge this government that before interest. Father has raised Court, we it. and will not address Lally-Green majority opinion the Judge concurred in result the 8. Judge Cavanaugh joined Judge by by Gantman. written the late and infra, Supreme fully the States As will be discussed more United 9. scope parental specifically "precise the of the Court refused define process right a context” to set standard due the visitation 73, Troxel, scrutiny applied. at 120 S.Ct. Justice to be 530 U.S. Thomas, however, applied any scrutiny strict should be asserted that right. 2054 infringement parent’s of a Id. at 120 S.Ct. fundamental J., (Thomas, concurring). Equal that the did not violate the 10. The court also concluded statute Protection Clause. Stehlik, (2000) Pa. 11. See 744 A.2d 1258 Charles that, custody disputes biological (holding between court statute properly applied necessary pre sumption Father’s in the decisions were best interests Child the record the trial supported court’s conclusions that Grandmother overcame the presumption demonstrating that partial custody was in Child’s best inter ests and that would not interfere relationship with Father’s n withChild. The Superior Court therefore affirmed trial decision, court’s finding application of Section 5311 consti tutional. decision, published

From this Father for this petitioned review, Court’s granted which we consider whether Section violates Due Process Clause of the United States Constitution as an infringement upon parent’s rights. This issue of first our impression for Court was left specifically in the individual states United States Troxel, Supreme Court’s decision in U.S. S.Ct. (“We not, not, do today and need define the precise scope context”). due process right the visitation Before discussing parties’ arguments which hinge divergent readings of United Supreme States Court’s Troxel, decisions we must first discuss what the divided held, High implied, Court what it it left open what determination states. individual The facts involved in are Troxel similar to those in the case before Court. Each case involves a child’s tragic loss of later decision of the surviving parent restrict contact between the child and a grandparent on the side, deceased parent’s where and the child had a significant relationship prior to the parent. death the In the the opinion judgment Court, of the in announcing Troxel, O’Connor, in joined Justice full Justice Rehn- by Chief quist and Justices Ginsburg Breyer, initially noted that all fifty (and states have enacted statutes granting grandparents others) ability the to seek visitation or in in part party, "evidentiary tipped tipped

third the scale is hard to the 545, side”); E.E., 1227, biological parent’s B.A. v. 559 Pa. 741 A.2d (1999); Hooks, 363, 512, 1229 1n. Ellerbe v. 490 416 Pa. A.2d 513-14 (1980).

351 family.” American realities of the changing “recognition 1, also, 2054; at 74 n. Troxel, 64, 120 see id. 530 at U.S. S.Ct. designed are “ensure 2054. The statutes 120 S.Ct. relationships by protecting children therein welfare 64, 120 at parties.” form third Id. children with such those 2054. S.Ct. however, protection plurality acknowledged,

The parent-child cost to the relation relationships comes at a these Washing that the addressing argument the mother’s ship. the Four rights under process ton her due statute violated Amendment, liberty plurality observed “[t]he teenth in parents at this case—the interest of interest issue care, their children—is perhaps and control of custody, recognized” liberty the fundamental interests oldest of 65, at 120 2054 Supreme Court. Id. S.Ct. States United alia, Glucksberg, v. discussing, Washington inter (citing (1997); 720, 702, 2258, 138 117 L.Ed.2d 772 521 U.S. S.Ct. J.R., 2493, 584, 602, 99 61 L.Ed.2d v. 442 S.Ct. Parham U.S. Yoder, 205, 232, (1979); 92 v. 406 U.S. S.Ct. 101 Wisconsin Illinois, 645, 1526, (1972); 15 v. 405 U.S. Stanley 32 L.Ed.2d 1208, (1972); v. 651, 551 Prince Massa 31 L.Ed.2d 92 S.Ct. (1944);

chusetts, 438, 64 88 L.Ed. 645 321 U.S. S.Ct. Sisters, 510, 534-5, 45 S.Ct. Society Pierce v. U.S. 390, 401, Nebraska, (1925); Meyer U.S. L.Ed. 1070 (1923)). “In of this extensive light 67 L.Ed. S.Ct. Due Process doubted that the

precedent, it cannot now be fundamen protects of the Fourteenth Amendment Clause care, concerning decisions tal to make Troxel, 530 U.S. at control of their children.” custody, and S.Ct. at issue Washington noted that the statute plurality that “any broad” in that it stated “breathtakingly Troxel was Id. Fur- time.” may petition “any visitation person” ther, trial court allowing faulted the statute for plurality merely on the trial parent’s a fit decision based overturn of a of what was the best interests court’s determination with, tension, if actual conflict child, apparent in Parham of the Supreme Court’s confirmation United States presumption fit act the best interests of the 68-70,120 child. Id. at 2054 (citing S.Ct. statutes that protect a parent’s right by providing parental fundamental presump- tion). Thus, plurality found that the trial court to failed give “special to weight” the mother’s determination of the 69, children’s best interests. Id. at 120 S.Ct. 2054. The opinion also noted that mother did not cut off but merely visitation. at (noting limited Id. S.Ct. 2054 that some require actually states’ statutes have denied all visitation). The plurality specifically criticized the trial court’s findings,” presumption “slender of grandparent favor visita- tion, and “failure to accord to significant weight [the mother’s] already having meaningful [grandpar- offered visitation to the concluded, Id. The plurality then “the order ents].” visitation case an was unconstitutional on infringement [mother’s] care, to make decisions concerning the and control of her Id. at daughters.” two S.Ct. 2054. Due permit Process Clause does not “[T]he infringe State the fundamental parents to make rearing simply decisions because judge a state believes a 72-73, ‘better’ decision could be made.” Id. at 120 S.Ct. 2054. plurality While Troxel found the trial application court’s unconstitutional, of the statute did find the statute Instead, facially directly unconstitutional.12 relevant sub judice, plurality case refused to “consider the primary question passed constitutional on by Washington Supreme Court—whether the Due Process requires Clause all nonparental visitation statutes to showing include harm potential harm to the precedent child as a condition grant- appeal Supreme 12. The to the United States Court from was a decision Washington Supreme State Court. Id. at 2054. S.Ct. Washington Supreme facially Court declared statute its unconstitu- First, primarily problems. tional due to two Id. it concluded that the showing potential lack of a statute’s threshold harm or harm to the prevented child from the denial of visitation the state's interference Second, parents. with the Id. the state court held the statute swept broadly parents' unconstitutional because it too and thus violated rights by allowing grant "any person” "any courts visitation to at solely analysis. time” based on a best interests Id. The plurality Id. ing S.Ct. visitation.” opined, not, not, precise scope the today need define

We do In context. process right due in visitation parental Kennedy the consti- respect, agree Justice that this we awarding standard for visitation turns tutionality any applied in which that standard specific manner protections this area are best that constitutional adjudica- “elaborated with care.” Because much state-court basis, case-by-case tion in this context occurs on a would we specific visitation stat- nonparental be hesitant to hold that se matter. per violate the Due Process Clause as utes (citation omitted). Id. judgment plurality concurred in the

Justice Souter judgment that he also would have affirmed the Wash- however, Court; Supreme plurality unlike the he would ington unconstitutional, facially finding have held the statute that “any seek swept broadly by allowing person” statute too time,” “any requiring merely showing at that visita- Id. 120 S.Ct. tion in the best interests the child. at was (Souter, J., plurality, Like the Justice concurring). re- rely Washington did not State court’s upon Souter demonstrate harm to the child quirement resulting from the lack of visitation a constitutional prior of visitation. grant

Also in the Thomas noted the concurring judgment, Justice justices’ designate scrutiny other refusal to a standard of on the issue. applied infringements at scrutiny applied He asserted that strict should be because the fundamental, that the Wash- right involved was but observed rational ington question statute would even survive government of a interest in scrutiny legitimate basis for want regarding fit guess[ing] parent’s decision visitation “second J., (Thomas, at third Id. 120 S.Ct. parties.” concurring). contrast, plurality’s from the Justice Stevens dissented as applied,

conclusion that the statute was unconstitutional and further concluded facially statute was constitu- tional in that a “plainly legitimate sweep.” the statute had Id. J., (Stevens, at 120 S.Ct. 2054 dissenting). While the plurality and Justice Souter refused to their base conclusions on the statute’s lack of a requirement resulting harm from visitation, the lack of forcefully rejected Justice Stevens assertion: have parent’s “we never held that liberty interest relationship so inflexible to establish a shield, rigid protecting arbitrary constitutional even any challenge decisions from finding absent threshold (Stevens, J., harm.” Id. at dissenting). S.Ct. Instead, he asserted that limits on the fundamental parents resulted from the balancing parental rights against “long-recognized state’s interests as parens patriae.” Id. 88,120 (Stevens, J., S.Ct. 2054 dissenting).13

Finally, Kennedy Justice dissented.14 acknowledging While a parent’s right, existence of constitutional he asserted that the case should be due to the error reversed he found the Washington Supreme Court’s conclusion that parental proof could not be infringed something without more than that visitation would be in the child’s best interests. Additionally, Stevens, like Justice he that showing concluded a to harm the child required should be to prior grant a 92,120 visitation to a third Id. at party. 2054 (Kennedy, S.Ct. J., dissenting). Noting that children many today signifi- have cant non-parents, with he relationships opined paren- that the tal right differently should be depending viewed on whether the case a claim complete involves of visitation with a stranger a visitation de parent. Kenne- Although Justice facto Additionally, espoused 13. potential Justice Stevens a constitutional right yet regarding to "complemen- be elucidated the Court a child's tary preserving relationships interest that her welfare and .serve (Stevens, J., protection.” dissenting). Id. at 120 S.Ct. 2054 "At a minimum, are, prior recognizing generally our that cases children speaking, constitutionally protected require reject actors that this Court any suggestion rights, that when it comes to are so children Id., 88-89, J., (Stevens, much dissenting). chattel.” at S.Ct. paren- Justice Scalia also based his dissented conclusion that the 91-92, tal right. was an Id. at unenumerated 120 S.Ct. 2054 J., (Scalia, dissenting). provide may the best standard that interests dy concluded that the he noted parental right, protection sufficient battles could litigation effect of involved disruptive standard: require higher that reality confront more must often system

Our pro- that constitutional disruptive can itself be so litigation possibili- and I do not discount required; tection child that in some instances the best interests ty parent- protection insufficient may provide standard relationship. J., dissenting). (Kennedy, Id. S.Ct. Justices, that all the analysis demonstrates foregoing Scalia, the existence recognized of Justice exception

with the to make deci- parents constitutionally protected of a care, chil- and control their concerning custody, sions may visit dren, third determining parties which includes which Further, majority to their children and what extent. to presumption they fit are entitled agrees However, while act in the best interests their children. concluded that the Kennedy explicitly Stevens and Justices require requesting a third visitation party Constitution did not the lack of that the child be harmed demonstrate would visitation, Al- plurality the issue. speak refused scrutiny standard though apply Justice Thomas would strict right, of a infringements parent’s review Instead, notably silent on this issue. rest of Court was decision, at least for the to the states present, court left the application their individual statutes. case-by-case however, plurality opinion, provides Justice O’Connor’s application on constitutes guidance impermissible some what raise red presumably highlights thus issues which should statute’s assessing constitutionality particular in of a flags above, that the As noted held Wash- application. plurality in that it ington “breathtakingly statute was broad” allowed “any custody. at time” to “any person” petition to account for the justices noted that the statute failed also of their act in the interests presumption parents best fact, children, had, in the trial in Troxel and that court impermissibly presumed that visitation should be granted. Finally, plurality opinion criticized the “slender findings” supporting the trial court’s overturning of the fit parent’s exercise of parental discretion.

Against this Father backdrop, requests that we reverse Superior Court and hold that in erred concluding Section 5311 as was constitutional applied. attempts .He diminish importance of the differences between statute and, Troxel and significantly narrower Section 5311 instead, focuses factual similarity the case between bar and the factual scenario in Troxel. He claims that the trial court below failed to afford his weight,” decision “special and instead substituted its view of what was the best Child, interests of which plurality Troxel found uncon- stitutional. He maintains that the preponderance evi- dence standard of proof utilized the court should below only apply parties equal rights child, between to the such fit parents, two and should not apply dispute between parties. Instead, and third he that grandpar- claims ents, who cannot claim a fundamental to visitation or partial custody, should required demonstrate compelling such circumstances as unfitness of significant harm to the child resulting from denial of visitation or partial custody before the courts may interfere with the parents’ care, custody, control their own that, children. Additionally, he asserts like the mother in Troxel, he willing was allow Grandmother some contact with Child.15 He urges Court to follow our sister states that have found statutes providing for visitation or partial custody either facially unconstitutional or unconstitutional as applied.

Conversely, Grandmother asserts that this case is para- “a digm 5311,” trial court’s proper application of Section which the “weighed court all the necessary factors to render decision that both promoted the best interests of the child and above, 15. As noted regarding Father’s assertions whether he would permit contact with Grandmother absent a court order were found credible the trial court. parent.” rights process due the substantive protected contends Sec- Brief at Grandmother Grandmother’s 12. Troxel, in broad” statute “breathtakingly unlike the tion the fundamental protecting balance between perfect strikes protecting in the state’s interest of a lost of a has interests and welfare child who best grandparent. his losing relationship his is at risk of opinion con- plurality observes that Troxel Grandmother statute with more excessively Washington broad trasted Further, she notes that Pennsylvania’s.16 like statutes narrow best interests weighted courts Pennsylvania applied have custody cases. analysis plurality’s the Troxel criti- distinguishes

Grandmother next to the weight court’s failure to accord special cism of trial of fact findings” the court’s “slender decision and parent’s his judge’s in on trial own part experiences based contrast, In she notes the trial court sub grandparents. best act in Child’s inter- presumed that Father would judice of fact whether findings regarding ests and made detailed custody. Grand- partial best interests order was Child’s the trial the burden imposed also observes that court mother Grandmother, to the trial court in proof contrast Further, carefully consid- Troxel. the trial court this case the likelihood that Father Child with provide ered would relationship opportunities to continue his with Grandmother on the and the effect that court-ordered would have on Troxel and parent-child relationship. Additionally relying states, infra, the decisions of some of our sister discussed rejects suggestion Father’s Constitution Grandmother her unfitness harm to the requires to demonstrate partial custody. from resulting the denial recognition points particular. to the Court's Grandmother statute, 257.022(2)(a)(2)(1998), § which re- Minnesota’s Minn.Stat. not quires that visitation be in the best interests of child and parent-child relationship the amount of interfere with the and considers visitation, personal prior petition and Nebraska’s contact statute, 43-1802(2)(1998), requires § clear which Neb.Rev.Stat. convincing significant relationship, beneficial as well as evidence of a interests, is in the child’s best and will determination that visitation parent-child relationship. interfere with the mind, these arguments With we turn consti tutionality of Section 5311 as applied this case.17 As set Troxel, forth to make concerning decisions care, custody, control one’s is children one of oldest fundamental Due protected by the Process Clause. Troxel, 67, 530 at 120 U.S. S.Ct. 2054. While the United Troxel Supreme States Court declined in to articulate stan dard review regarding infringements this fundamental right, traditionally this Court has a strict applied scrutiny analysis to asserted violations of rights protected Due Process Clause. See Khan v. State Bd. Auc Examiners, tioneer 166, 936, (2004); 577 Pa. 842 A.2d 947 Commonwealth, Nixon v. 385, 277, 576 Pa. 839 A.2d 281 (2003). While the decisions our sister states are not Court, binding on this we further note that numerous state courts that have the constitutionality addressed of grandpar ent visitation statutes have also a strict applied scrutiny Thus, analysis.18 given the fundamental the right, nature of we conclude that we apply scrutiny analysis must strict scope custody Our very Albright 17. of review of orders is broad. See v. Commonwealth, Fetters, 320, 157, ex rel. 491 421 Pa. A.2d 158-59 (1980). However, nullify we will scope not use that of review to court, factfinding functions of the trial we will not reverse a trial court’s order where trial court has not its abused discre- Charles, Moreover, tion. 744 questions A.2d at our 1257. review of Baxter, 619, 446, plenary. law is See R.M. v. 565 Pa. 777 A.2d 449 (2001). Our applied scrutiny following sister states have strict in the cases statutes, thereof, when reviewing applications relating grandpar J.B.C., parties’ petitions ents' or third for visitation: R.S.C. v. 812 So.2d Linder, 322, (Ala.Civ.App.2001); 361 (2002); Linder v. 348 Ark. 72 S.W.3d 841 Weston, 202, (2002); Roth v. 259 A.2d Conn. 789 431 Richard Richardson, (Fl.2000); Lulay son v. 766 Lulay, So.2d 1036 v. 193 Ill.2d 455, 758, (2000); Santi, 250 Ill.Dec. 739 N.E.2d 521 Santi v. 633 (Iowa 2001); Blixt, 649, N.W.2d 312 v. Blixt 437 Mass. 774 N.E.2d (2002), denied, 1189, 1259, 1052 cert. U.S. 537 123 S.Ct. 154 L.Ed.2d (2003); Riendeau, (Me.2000); 1022 Rideout v. 761 A.2d 291 v. Hoff (N.D.1999); Bradt, 84, Berg, 595 Moriarty N.W.2d 285 v. 177 827 N.J. denied, (2003), 1177, A.2d 203 cert. 540 U.S. 124 S.Ct. 158 (2004); Collier, 2004-1492, 2004-1647, L.Ed.2d 78 Harrold v. Nos. (Ohio 10, 2005); Hawk, 2005 WL at *6 Oct. Hawk v. Pensom, (Tenn.1993); S.W.2d 573 (Tex.Ct.App. In re S.W.3d 2003); C.A.M.A., (2005); In re 154 Wash.2d 109 P.3d 405 M.B.B. v. E.R.W., (Wyo.2004). 100 P.3d 415 of the fundamental the state infringement by any of their care, control custody, and to direct defined has previously as this Court Accordingly, children. scrutiny strict utilizing when apply test appropriate is review, infringement supported if must determine we narrowly if infringement interest and state compelling Khan, A.2d that interest. See to effectuate tailored Commonwealth, 281; also Reno 947; 839 A.2d at see Nixon v. Flores, 292, 301-02, 123 L.Ed.2d 113 S.Ct. 507 U.S. (1993) interpret- (commenting Supreme Court cases have of ‘due guarantee Amendments’ ed the “Fifth and Fourteenth component, which to include a substantive process law’ ‘fundamental’ liber- government infringe certain forbids the all, unless provided, process no matter what ty interests at compelling is to narrowly tailored serve infringement in (emphasis original)). interest” state is the interest issue in case state at compelling in the health protecting interest longstanding

state’s Court, times, this of children. Numerous emotional welfare Court, Supreme approved has like United States allowed parens patriae of its interest and state’s exercise of children rights where the welfare infringements parental J.J., 590, Pa. 515 A.2d at In re 511 Adoption stake. See of (1986) 883, interest (balancing parens patriae state’s 893 parent’s rights of against protecting welfare stan- convincing that the clear and evidence determining dard, doubt, in cases is appropriate rather than reasonable rights). example, of For involving parental the termination the termination permitted have we C.A.E., See, Pa. In re 516 dependency. e.g.,

declarations (1987) trial order termi- (reinstating 802 court’s 532 A.2d Moreover, grants permitted lights). we have nating parental objections of non-biological over the to See, Charles, Pa. 744 A.2d 560 parents. e.g., biological over primary custody stepfather to (affirming grant 1255 Ellerbe, father); 416 A.2d 490 Pa. objection biological over primary custody grandmother to award (affirming father). objection biological interest,

Having recognized the existence of a compelling we must determine the statute applied whether this case is narrowly tailored to serve that interest. We first observe that Pennsylvania’s statute and its in this are application case clearly distinguishable from unconstitutional application Troxel, statute Troxel. Unlike statute which time, extended standing any person any Section narrowly limits can seek those who visitation or custo- partial dy merely to grandparents, but specifically grandpar- limitation, ents whose child has died.19 This it should be noted, Assembly’s furthers our express General public policy to assure the “continuing contact of the child or children with deceased, grandparents when the sepa- divorced or Moreover, § rated.” Pa.C.S. the rationale behind the stated public policy is clear: in the recent past, grandpar- ents have assumed roles in grandchildren’s increased their lives and experience our cumulative demonstrates the many potential Troxel, benefits of strong inter-generational ties. U.S. at S.Ct. 2054. .

While acknowledging general benefits of these relation- we cannot ships, always conclude that such a benefit accrues in cases way where force their into grandchil- courts, dren’s-lives through contrary to the a fit decision of contrast, parent.20 «however, we refuse our close minds possibility that in some instances a court overturn even the decision of a fit from exclude life, a grandchild’s especially grandparent’s where the child is deceased and the grandparent and relationship longstanding significant the grandchild. to We must therefore determine whether Section 5311 is narrowly tailored to the protect of fit parents while for providing appropri- acknowledge 19. While we the applies grandparents that statute to both (or great-grandparents grandchild) and whose has died and left a (or grandchild great-grandchild), only we refer to for ease of discussion. especially given 20. This consideration is resonant the strain that custo- dy litigation places parents the grandparents, children as well as Troxel, Kennedy as noted Justice U.S. 120 S.Ct. 2054 J., (Kennedy, dissenting). of children to the welfare protect ate state intervention partial or custo- grandparent visitation through court-ordered dy. to to the state’s -the need response

In balance apparent requires courts rights, Section parents’ interest and interfere or custody the visitation will partial ensure that visita- relationship and to determine that the parent-child Final- the child’s best interests. custody tion or selves partial the requires courts to consider Pennsylvania the statute ly, grandchild and a of contact amount between' filed, thus an assessment petition allowing before was willing- strength relationship pre-petition court access to child without provide ness of the order. statute, precedent

In our language addition Supreme our do the United States requires courts to what to do—to Washington failing trial Court faulted court parent. of a fit favor the decision provide presumption the appropriate has previously struggled This Court Ellerbe, In custody to afford matters. parents deference the enactment of Section we determined before decided custody faced with apply standard when appropriate (not a partial custody) visitation or contest between that, in Initially, custody disputes and a noted non-parent. we be proof equally is shared parents, the burden between parties and the focus is on the best-interests tween the Ellerbe, 363, 416 On the other 490 Pa. A.2d 512. child. Act, extreme, § el noted 42 Pa.C.S. we that Juvenile state, that, in a contest seq., dictated between showing the child the state bears the burden custody state wrest dependent before the delinquent custody disputes Id. these lie parent. poles from a Between grandparents. third such as involving parents parties, Ellerbe, cases the lacked acknowledged such Court we re guidance regarding consider legislative how Thus, the standard parties. adopted of third Id. we quests Superior Court: developed

When the judge dispute is hearing parents, between is, ... parent, party, question and a third still [t]he However, what is in the best parties child’s interest? do even; not start out the “prima have a facie to custody,” which only “convincing will forfeited if reasons” appear that the child’s best interest be served an will Thus, award to the party. proceed- third before the even start, ings evidentiary hard, is tipped, scale and tipped therefore, to parents’ do, side. must judge What first, all interest, hear evidence relevant the child’s best then, and decide whether the evidence on behalf third party weighty enough even, to bring up the scale and down on the party’s third side.

Id. at 514 set in (quoting adopting test forth In re Hernandez, (1977)). 249 Pa.Super. 376 A.2d Rowles, later, in years

Fifteen Rowles Pa. (1995), A.2d again weight we considered the should be parents’ afforded preferences custody disputes case, parties. with third In that a plurality of this Court prima recommended that the requirement of Ellerbe be facie dropped and replaced with the recommendation forth in set then Justice Flaherty’s concurring opinion Ellerbe: se,

By eliminating the clearly presumption mandat- per ing that custody be determined a preponderance of evidence, parenthood as weighing strong con- factor for sideration, custody proceedings disentangled would be from burden applying presumption that beclouds merely the ultimate concern these cases: the determination of what interests, affiliation will best serve child’s including intellectual, physical, emotional, moral, and spiritual well- being.

Rowles, (emphasis justices 668 A.2d at 128 in original). Three Rowles, joined the award but strong voiced a opposition dispensing the presumption in favor the parents adopting the lower standard of merely considering as a parenthood “strong factor.” Id. (Montemuro, J., concurring, joined by Zappala Cappy, JJ.). E.E., the later, v. reaffirmed in B.A. we years

A few Ellerbe: in of set forth in parents favor presumption of majority command a did not opinion Because the Rowles to the have a court, that presumption parents in remains against parties of their as third custody children children is interest their parents’ effect. Whether weighed, a or as factor to presumption to as a referred to receive however, parents special is that are main idea Ellerbe, weight special court it in put as the consideration: relation- be accorded the parent-child and deference should ship. Charles, 1; A.2d E.E., n. 744 741 A.2d at 1229 see also

B.A. v. Thus, considered other alterna- at 1258. the Court has while of tives, maintain a favor presumption we favor. tips parent’s the balance meaningfully that, mentioned, in addi argues Father previously As 5311, must grandparents of requirements tion to the Section harm as a result of the a child will suffer demonstrate that The partial custody. of or United States denial visitation refused to determine “whether Court in Troxel Supreme visitation statutes nonparent Clause all requires Due Process harm as a condition showing potential a of harm or to include Troxel, 73, 530 120 to U.S. precedent granting visitation.” Moreover, of our sister states have while some S.Ct. a or grant of harm of visitation finding prior a required or their under the Due Process Clause custody either partial declined to constitutions,21a number of courts have either own following required finding permit before a of harm 21. courts have party: McTag ting grant Evans v. a of or visitation a third (Alaska 2004) convincing gart, (requiring clear and 88 P.3d 1078 requires parental unfitness or that the welfare the child evidence of 841, 322, visitation); Linder, S.W.3d party v. 348 Ark. 72 third Linder (2002) special (requiring showing a other factor such “some 858 justifies interfer or unfitness that state harm ence"); the child custodial Weston, (2002) 202, (requiring 431 v. 259 Conn. 789 A.2d Roth parent-like a showing harm to the child and of real and emotional Parkerson, 189, child); relationship S.E.2d Brooks v. 265 Ga. 454 showing (1995) requiring a (finding statute unconstitutional 769 Azicri, visitation); 720 So.2d 510 prior grant to a Von harm Eiff v. (Fl. 1998) (holding that not intrude on fundamental state harm); parents except Wickham where the child is threatened

require third harm parties demonstrate or have found that may satisfy a requirement of harm merely showing that the child be harmed of a will termination beneficial relationship grandparents.22 with his her Addi- 309, 799, (2002) Byrne, (permitting 199 Ill.2d 263 Ill.Dec. 769 N.E.2d parental rights only protect interference with in limited instances to health, child); Howard, safety, Marriage and welfare In re (Iowa 2003) (declaring involving N.W.2d 183 statute visita parental facially tion after divorce unconstitutional due to statute's require showing both failure to unfitness and harm to beyond relationship grandparents); mere loss of beneficial Blixt, denied, (2002), Blixt v. 437 Mass. 774 N.E.2d cert. (2003) (requiring 537 U.S. S.Ct. L.Ed.2d 1022 showing satisfy of harm to the requirement child which would "compelling legitimate there be a mitigating State interest families, potential harm to children non-intact an area the in which Moriarty involved.”); Bradt, traditionally actively State been has and v. 84, denied, (2003), 1177, 177 N.J. 827 A.2d 203 cert. U.S. 540 124 S.Ct. 1408, (2004) (requiring 78 preponderance 158 L.Ed.2d of evidence that child); of lack visitation will harm to the cause health and welfare of the Lee, (Olda.2000) v. (requiring showing

Neal 14 P.3d 547 of harm to decision); may parental child before state interfere with Camburn v. Smith, 574, (2003) (requiring showing 355 S.C. 586 S.E.2d 565 either parental compelling of or significant unfitness such circumstances as merely harm to child in the of absence visitation not child would visitation); Hawk, (Tenn.1993) benefit from Hawk v. 855 S.W.2d 573 harm); Pensom, danger (requiring substantial of re 126 S.W.3d 251 showing (Tex.Ct.App.2003) (requiring signifi of or unfitness impairment physical well-being cant to child’s health or emotional visitation). resulting from lack of following required 22. The finding courts either have not of or harm merely have found harm party: in the denial of visitation the third 306, Tangreen, Jackson v. (Ct.App.2000), 199 Ariz. 18 P.3d 100 cert denied, 953, 351, (2001) (finding 534 U.S. 122 S.Ct. 151 L.Ed.2d 265 facially statute required constitutional that statute of consideration motivation, parties relationships historical amount visitation Vibbert, requested); (show (Ky.Ct.App.2004) Vibbertv. 144 292 S.W.3d Harris, ing Galjour unnecessary); of harm v. (La.App. 795 So.2d 350 1 Cir.) denied, 1229(La.), denied, 1020, writ 793 So.2d cert. 534 122 U.S. 545, (2001) (upholding S.Ct. 151 constitutionality L.Ed.2d 422 of stat deceased, interdicted, parent is any ute where or incarcerated without Riendeau, (Me.2000) qualifications); further Rideout 761 A.2d 291 statute, (upholding constitutionality noting potential traumatic child); relationship effect of cessation of the on the Bradt, 84, (2003); denied, Moriarty v. 177 N.J. 827 A.2d 203 cert. 1177, 1408, (2004) (requiring 540 U.S. 158 S.Ct. L.Ed.2d 78 preponderance of evidence that lack visitation will cause harm the child, stating health and welfare of the but that harm be demon Collier, death or family); strated dissolution of Harrold v. Nos.2004-1492, 2004-1647, (Ohio WL at *6 Oct. finding specific tionally, require our statute does harm, requiring grandpar militates precedent against and our grant to a precedent harm as a condition ents to demonstrate has non-bio Specifically, permitted this Court of visitation. custody or primary maintain obtain logical parents so long objections biological children over “clearly which indicate there are other circumstances See custody non-parent.”23 of a award to appropriateness Rowles, 512; Ellerbe, A.2d Pa. 416 A.2d see also justices, “all (noting agreed in EUerbe seven relationship should ‘the principles: parent-child several in determining to be which importance considered interest,’ ‘special weight’ is in the child’s best arrangement relationship, parent-child be accorded the ‘deference’ should some not be disturbed ‘without relationship should ‘clearly harm’ unless circumstances indicate showing of or ” (inter non-parent’ to a appropriateness awarding custody omitted)). Moreover, that requiring conclude nal citations we denial of demonstrate that visitation grandparents every Section 5311 case would set result harm would and the policy too of the statute high, vitiating purpose bar in Section is to assure continued expressed which par when a grandchildren contact between deceased, divorced, Instead, we conclude separated. ent is of stringent requirements applied Section that case, act in presumption parents combined that this interest, the fundamental sufficiently protect child’s best 2005) (holding grant grand grandparent of warranted where visitation years parents following the death of child's raised child several had O’Donnell-Lamont, mother); Marriage In re 337 Or. 91 P.3d of (2004) showing prior grant (refusing require of or harm unfitness Moats, 752, 551 custody party); v. 209 W.Va. of to third Brandon L. (2001) statutory (finding process by due concerns satisfied S.E.2d requirements that interests of child and the courts consider best parent-child relationship). effect of visitation on the seeking custody parties acknowledge We third visitation and that L.R.M., standing. stringent T.B. Pa. must meet a test for See (2001) standing (noting may be A.2d established that demonstrating invoking statutory by specific or either authorization child). parentis to petitioning party stands in loco that without additional requiring any demonstration of

unfitness or specific requirement harm or potential harm.24 necessary

The trial court in the case judice applied sub presumption and gave “special weight” to the decision of Nevertheless, Father. the court found that had Grandmother met given this burden the court’s conclusion that the child Grandmother, benefited from spending time with whom he a longstanding had and close and from relationship whom support he received emotional in the of the aftermath loss of We, therefore, his mother. that court find the trial satisfied requirements of Section 5311 and that its application our scrutiny. survives strict of the Accordingly, the order Superior Court is affirmed. CASTILLE,

Justice join opinion. SAYLOR EAKIN Former participate Justice NIGRO did not in the decision of this case. concurring

Justice NEWMAN files a opinion.

Chief Justice files a dissenting CAPPY opinion.

Justice NEWMAN concurring. join

I the well-reasoned Opinion Majority matter but separately write to indicate the strength my Cappy, specific 24. Unlike Mr. Chief Justice we decline to demand a finding grant of harm trial prior partial custody court to a Moreover, the case resulting bar. we observe consideration of harm partial custody from the denial of visitation or is implicit extent triggered to some because the statute statute is only parent, when a child suffered of a has the loss and visitation or partial custody only is allowable when the court concludes that the grandparent relationship grieving is in the best interests of the child. It beyond cavil that the child's an loss of additional beneficial relation- Nevertheless, ship degree recognize will result in some of harm. we significant certainly strengthen that a demonstration harm could grandparent's argument partial custody or in the visitation best acknowledge justification supporting interests the child and that the grant partial correspondingly visitation should more increases, convincing custody granted as the extent of the because greater periods custody present greater infringement parent’s on a care, custody, constitutional to the direct the and control of the child. in area of this forward movement greater conviction that even stabili- Security, continuity, and required. rights children’s maintained relationship, whether ongoing in an custodial ty a grandparent or biologic adoptive awith and/or a child. development to personality the successful vital child, focus in to that the as the finally recognize needs law inalienable has the same proceedings, types various life, an adult. happiness as pursuit liberty, to Therefore, regard that it is time to emphasize I write momentous as a fundamental and of the child best interests needs to Further, I Court am convinced right. a child’s funda- guidance ascertaining toward provide some interests. mental best resource, essential precious our most and it is

Children are an brought a to be environment they up have chance into grow are nurtured and the chance to they given where Children community. members of law-abiding, productive vulnerable, guidance impressionable, and need are child particularly experiences This is true when a support. from the child’s loss of a That parent. support spring teacher, or a a a grandparent, relationship parent, or a provided by parent stranger, nearly always but will like the instant matter which grandparent. Situations illness and is during parent’s cares for a child the child for of his her preparing instrumental the death health of a are all too common. It is emotional during emotional bonds formed concomitant with ultimately be- childhood that determine whether the child productive community. comes member

Development Rights of Parental complete have maintained discretion Historically, trust, encourage, what caretakers to what associations over the early role models endorse. Pursuant and what law, who children of their parents, common were chattels they do with the child. Barbara Bennett could wished “ Woodhouse, Pierce Meyer ‘Who Owns Child?’: & Property,” Mary the Child as Wm. L.Rev. 1992) (hereinafter

(Summer (children Property”) “Child as “as were treated assets of estates in which fathers had a services, right.... vested Their and earnings, the like became property of their life paternal masters for and exchange (internal maintenance.”) omitted); marks quotation Hernan Thomas, 522, 641, (1905) dez v. 50 Fla. 39 642 So. (holding mother’s deathbed of the designation grandmother guard as only ian her children ineffective because the father has the right testamentary disposition consigned and father had Co., children to an orphanage); Plymouth Eustice v. Coal 120 299, (1888) Pa. 13 A. 975 (ordering thirteen-year-old boy’s wages paid directly parent). Early to his emphasized cases right parent, others, to all to the care superior and See, e.g., Pilmore, of the child. Norris v. 1 Yeates 405 (Pa.1794) (suit by against mother and master clergyman for marrying minor child without her permission against Burt, (Conn. agreement); apprenticeship Pease v. 3 Day 485 1806) (noting parent that has the right person control child); (N.Y.1813) re 10 483 Deming, Johns. (holding that a man life sentenced to and subsequently pardoned children); resumes custody and control of his Inhabit Natick, 135, ants Dedham v. Inhabitants 16 Mass. 1819 1485, (1819) 4 (concluding WL that widow assumes role head of all family as her rights and children her”). “cannot, law, be from separated This could be abandonment, surrender, only by dissolved or unfitness. See Bertron, (Pa.1844); Stansbury v. 7 Watts & 362 Serg. Moritz Garnhart, (Pa.1838); Salter, v. Watts 7 302 see also In re 142 412, (1904) 51, Cal. 76 P. 52 (holding that court has no discretion to appoint grandmother guardian as of a child if incompetent); 41, father is not Harper Tipple, 21 Ariz. 184 (1919) 1005, P. (determining 1006 that child who lived over years three grandparents must transferred to the father, custody of the showing absent clear of incompetency). This centralization of authority was a function of necessary parents state reliance on to raise their children to be function- ally responsible citizens to keep being them from a drain that, on state municipal coffers. The belief was order

369 effectively, required these duties carry out state interest of their children without authority to act Further, the law presumed interference. wisdom, experi- maturity, judgment, display

able to preference of parental the child lacks. This doctrine ence that the presumption modified form in survives a somewhat interests. in his or her child’s best act biologic will Granville, L.Ed.2d Troxel v. 530 U.S. S.Ct. [, (2000) by presumption opinion). “Procedure (plurality and easier than individualized always cheaper however] 656-57, Illinois, Stanley v. 405 U.S. determination.” (1972). when, here, “But S.Ct. L.Ed.2d competence issues of forecloses determinative procedure care, in defer- present it disdains realities explicitly when formalities, running roughshod needlessly ence to it risks past ... interests of both and child important over the stand.” Id. therefore cannot [and][i]t identify parental statutes

Although federal state do they through do receive constitutional rights, protection Pierce clause of the Fourteenth Amendment. See process due Sisters, 510, 571, 268 45 69 L.Ed. 1070 Soc’y v. U.S. S.Ct. of 625, Nebraska, 390, (1925); v. 67 262 U.S. 43 S.Ct. Meyer (1923). liberty 1042 often Although expressed L.Ed. interest, to autonomy right priva- is rooted in the childrearing Meyer a Nebraska statute that cy. prohibited involved any prior eighth to a child teaching foreign language stating The Court held the statute unconstitutional grade. doubt, [liberty] merely denotes not freedom “[w]ithout ... bodily from restraint but also the of the individual is the bring up establish a home and children.... many, [I]t education duty give natural his children 399-400, Id. 43 their situation in life.” S.Ct. suitable in Meyer on the reasoning Commonwealth relied (1950). 136, Bey, Pa.Super. 166 70 A.2d 693 Commonwealth Pierce, that prohibit- the Court state statute addressed Again, from attending non-public ed children schools. “unreasonably interfere[d] Court determined that the law to direct the liberty parents guardians upbringing Pierce, and education of children under their control.” 534-35, L., 322, atU.S. 571. In In re 477 Pa. S.Ct. William (1978), n. 4 A.2d this Court observed that a any statute “prescribing particular mode child rearing Later, likely would unconstitutional.” in Virginia West Barnette, State Board Education v. 319 U.S. 63 S.Ct. (1943), 87 L.Ed. 1628 Court princi- reaffirmed these in ples concluding requiring that a statute children recite objection the Pledge Allegiance over parental violated the parents’ rights. These became the foundation for cases However, theory “family.” federal as the Judicial Supreme Court of Maine articulated Rideout v. Riendeau:

The constitutional liberty family interest integrity is not, however, absolute, nor forever from free state interfer- ence. The Due Process impenetrable Clause not an wall children; rather, behind may which shield their it provides heightened protection against state intervention parents’ to make decisions concerning the care, custody, control of their children. (internal Riendeau, (Me.2000)

Rideout v. 761 A.2d omitted). citations But the state maintains an interest of its welfare children and limit “if parental autonomy appears will jeopardize decisions the health or child, safety or have a potential significant social Yoder, 205, 232, burdens.” v. Wisconsin 92 U.S. S.Ct. 1526, (1972). Crouse, 32 L.Ed.2d 15 Accord Ex parte Whart. 9, (Pa.1839) 1839 WL 3700 *2 (observing parents when are incapable fulfilling parental responsibilities, duties and the biologic parents “be by parens patriae”). can superseded

Development Rights of Children’s Although the common parents law assumed that had the duty authority and the to control the of their upbringing children, the state retained the power protect to duty See, those unable to protect e.g., themselves. v. Stanley Illinois, (1972). 405 U.S. 92 S.Ct. 31 L.Ed.2d 551 government The occasionally even superseded rights See, parents government’s in the when best interest. e.g., (Pa.1813) Barker, can (Congress v. 5 Binn. Commonwealth of their This parents). minors the consent enlist without originated authority king from the power doctrinal is, course, enabled patriae. patriae termed Parens parens unwilling unable or parents to intervene when were the state for their emotional and care adequate physical to provide Massachusetts, 158, 64 321 U.S. S.Ct. children. See Prince v. (1944). doctrine recognized This 88 L.Ed. 645 Court Crouse, the child’s early as as 1839 where parens patriae she to a because had committed the child workhouse mother custody sought The father unmanageable. felt child was permitting that the Com- legislation and a determination This the child was unconstitutional. Court keep monwealth patriae doctrine the rationale parens as propounded accomplish could child behavioral which the Commonwealth “reformation, imbuing training industry; by [children] fur- religion; by principles morality their minds with and, all, by nishing living; means to earn above them with improper from the influence of separating corrupting them Crouse, 4 Whart. 1839 WL 3700 at *2. associates.” dogma of the child” sown. seeds of the “best interests were parental courts abhorred interference with Traditionally, that such interference under decision-making, reasoning parents fulfilling from parental authority mine and hinder The child’s best imposed by society. and moral duties legal custody disputes interests served as tiebreaker in generally nevertheless, they gave way disputes parents; between Nonetheless, party. sporadical and a third between courts, Crouse, ly, recognized common such as that law interfering rule exceptions against paren the blanket Thus, autonomy. although explicitly recognized tal cases, early of the child to rights rights inalienable some trumped considered have his or her best interests of their children. companionship control Addicks, See, Crouse, Binn. e.g., supra; Commonwealth (Pa.1815) of the child (using best interests over issues); Waldron, see re to decide child also (N.Y.1816) it is in best interest of (finding Johns. the child to grandfather remain with rather than be placed in father); the care of Legate, v. Legate 87 Tex. 28 S.W. (1894) (holding of the or “[t]he the state to surround the child with proper govern- influences is of nature, mental while the of the child to be surrounded such influences as best promote mental, will its physical, moral development which, is an inherent of right, when once acquired, cannot be lawfully deprived.”).

Gradually of children concept property became obso judicial See, lete and approaches attitudes and changed. e.g., Wood, (1881) Chapsky (“[A] v. Kan. *1 WL any sense like a or chattel, horse other any subject matter for absolute contract.”); and irrevocable gift as Property,” supra, Bartlett, “Child Katharine T. “Re-ex (Dec. Parenthood,” 1988). pressing 98 Yale L.J. 293 Although the remnants of the autonomy and supremacy remained, make life-determining decisions for a child some adopted courts the position that parents are the trustees the child’s best interests. Even more significant was recognition specific rights, children’s some of which reached magnitude. constitutional

Development Grandparents Rights law, early At common grandparents any lacked substantive rights with regard grandchildren. their Even though, biologically, generations emerge one telescopically, out other, life expectancies of eighteenth and nineteenth century grandparents often prevented them from becoming active in the participants lives their grandchildren. The “superior rights” of parents protected parental autonomy and the nuclear family, negated the interests and third parties.

Many commentators believe that the erosion the nuclear family beginning spawned 1960s grandparent visitation states, statutes all fifty thus challenging strict parental See, autonomy. e.g., Jennifer Kovalcik “Troxel Granville: In the Battle Between Grandparent Visitation Statutes and Rights, Parental Best ‘The Interest of the Child’ Standard 2002); Reform,” Ellen (Spring L.J. 803 40 Brandéis Needs Marrus, Grandpar- to Hills and the Woods Through the “Over We, Post-Troxel?”, 43 L.Rev. Do Ariz. or ents’ House We Go: 2001). (Winter visitation and Conversely, grandparent derived, risen a level has not to custody, although statutorily of the Fourteenth puiview that enables inclusion within “liberty” rights. bundle of Amendment’s Su- States Majority, United ably

As discussed on an “as statute Washington Court invalidated the preme of of the failure basis its breadth and because applied” for the Washington legislature require due consideration be of his or her child will parent a fit determine how rights Pennsyl- child will associate. raised and whom that with statute does not grandparent visitation custody vania Assembly has from these infirmities. The General suffer standing to limit narrowly grandparent tailored Section of the death only experienced those who grandparents have the children own child seek to maintain contact with their Further, court is directed to that deceased child. the trial of the best interests parent-child relationship, consider the child, relationship child-grandparent and the extent custody. granting partial visitation or before values, family as important transmitters Grandparents, as family par- mediators legacy, as between representatives children, difficulty, tíre ents and or rescuers of families society neutralizing damaging important resources death, divorce, statutory This drug or effects addition. conflict as to seems invite expansion acting through judge, a trial government, the state when dispute, of an rather family influence the resolution internal vein, In this society. the realities of modern recognize than § 23 Pa.C.S. states: 1. Section deceased, grand- parents If a child is or an unmarried parent may partial

parents granted reasonable of the deceased be both, rights, or or to the unmarried child visitation both, rights, partial upon finding custody or visitation or court would in the interest of the child and would interfere best parent-child relationship. The the amount of court shall consider de- personal between the contact prior application. ceased and the one commentator “If complained, collectively we grand- allow parent visitation to be an upon unwilling forced no family for best, better reason than stranger that some robed thought judicial we have embarked upon a slow decent into supervision life family legal which has neither nor a logical limits end.” Bohl, Joan C. “The A “Unprecedented Survey Intrusion”: Analysis Cases,” of Selected Grandparent Visitation 49 Okla. 1996). However, L.Rev. (Spring appropriate guid- ance limited a trial court statutory authority, weigh can in an reasoned, facts individual case and provide intelli- gent, fair disposition and that does not descend to the level “judicial family life.” supervision

On those occasions where courts granted grandparent visi- tation, the court usually focused on the facts of each and case awarded or partial custody visitation if the had a close relationship with and there was a in disruption that, family. nuclear I in twenty-first century, believe the state’s interest a protecting child’s a relationship with third party, particularly a grandparent with whom the child has formed an attachment and benefited from a and nurturing association, because, caring instances, has heightened some there intact is no or stable family to otherwise protect child. Pierce,

Interestingly, Barnette, Yoder, in Meyer, and challenge parental state, came rights from the tried which to curtail parental child-rearing decisions some manner. cases, Grandparent partial however, visitation custody and do not set the state against but parental authority instead medi- ate a parent between grandparent. and interested Be- cause of the statute, limited reach of the Pennsylvania conflict is restricted parent to a and a one parent one set of grandparents. Right

Best Interests as Fundamental rests, “A continuance, democratic society for its upon healthy, well-rounded growth young into full people maturi Prince, ty citizens----” 321 U.S. at 64 S.Ct. Accordingly, beyond “[i]t evident the need for elaboration physical psy- safeguarding that a interest State’s York v. compelling.” a minor is New well-being of chological 747, 756-57, Ferber, 73 L.Ed.2d S.Ct. U.S. omitted). (internal a more

(1982) Hardly quotation marks children safe keep than interest exists compelling State scar or emotional trauma physical from the kinds mental, and moral spiritual, and physical, a child’s health into adulthood. development well right of been to the fundamental given

Much attention has care, of their minor and control parents custody, justification prefer for this primary children. The decisions, numerous one that resounds within principle, ence in Mey constitutional considerations articulated based on the er, Pierce, Barnette, superior right to parent’s and Yoder. A an acknowledgment of the child is in, and a legal interest recognized unique children have to, companionship. other’s constitutionally protected right each child, the child yet to raise the has has parent. her be raised his or See corresponding Illinois, 92 S.Ct. Stanley v. U.S. generally (1972). Thus, and the L.Ed.2d 551 believed that ordinarily compatible generally it is child are parent. its interest to be reared it is in a child’s best the Due Further, of liberty parents protected the interests to the United of Fourteenth Amendment Process Clause the the protected by are also Constitution States Constitution However, not only parents it is in this Commonwealth. extant protec to familial and constitutional integrity have who tion. I, states 1 of Constitution Pennsylvania

Article our Section independent, and “All are born free and equally that: men are rights, among inherent and indefeasible which have certain liberty, acquiring, of defending and life and enjoying those of of reputation, and protecting property possessing “men” as The term used pursuing happiness.” their own Minors are generic persons. this Article is all natural therefore, and, possess the eyes the of law persons natural pursuit happiness. liberty a constitutional Because fundamental do rights not mature and come into being magically when one age attains state-defined minors, adults, majority, along are protected our ' See, possess Constitution and constitutional rights. e.g., In 411, (1983) (deter- Interest 501 Pa. Stephens, 461 A.2d 1223 mining possess minors the constitutional right against placement in double jeopardy); Commonwealth ex Tabb rel. v. Superintendent Ctr., 466, Study Youth 407 Pa. 183 A.2d 317 (1962) (freedom self-incrimination). Further, from we have repeatedly held that Article provides greater protection than provided by See, the United States Constitution. Nixon, e.g., 1151, v. Commonwealth 563 Pa. 761 A.2d (2000); Dist., Valley Theodore Delaware Sch. Pa. (2003). A.2d L., In re (1978), William 477 Pa. 383 A.2d 1228 case, termination of parental rights we established that while generally may state not enter into the realm private life family and because parental rights must be accorded significant protection, parens the state patriae as has an duty protect Thus, affirmative minor children. re- straint on state interference family matters does reach so far to compel to protect parental courts expense ignoring the rights and needs of children. Id. at Having constitutional, decided that facially the statute was great William L. Court took care in applying the statute rejected facts. It appellant’s assumption that the purpose of the termination statute an punish was ineffective or negligent parent and that therefore a finding parental fault was constitutionally necessary before termination. Rath- er, out, pointed Court inquiry should center upon welfare the child rather than fault parent. responsibility state’s to protect its weaker members authorizes interference autonomy decision-making appropriate circumstances. Justice Roberts in William L. set forth practical the moral and importance of this authority: not, however,

These cases do support proposition that the state can never interfere in the parent-child relation- Illinois, Indeed, supra, United Stanley in v. ship. not had that state Supreme recognized Court States [Stanley children. protect minor only right, duty but Illinois,] 1212. See also at v. 405 U.S. S.Ct. Massachusetts, anti-child labor supra (upholding Prince v. unreasonably infringed challenge that against statute religion of and child’s free exercise and upon parent’s beliefs). in her Constitution- educate child parent’s not does family interference matters al restraint on state expense at the rights to protect parental the courts compel In Planned and needs of children. rights of ignoring U.S. Danforth, Central Missouri Parenthood of (1976), Su- the United States S.Ct. L.Ed.2d interest that state’s rejected argument Court preme justified parents a authority giving in protecting parental have an abortion a minor’s decision to power veto over non[-]consenting are so the minor and the where very existence of in conflict and fundamentally family fractured the structure. pregnancy already has omitted). (internal quotation Id. at 1235 marks best rights have their inter- children to rights par- prevails ests considered over the fundamental children in care, control of their custody, ents to the and dependency parents, determinations between fit to terminate delinquency proceedings, proceedings past stated these rights. Although explicitly parental decades, considerable Pennsylvania, I believe that for some time, has the best interests the child as fundamen- treated right. tal finally legitimize I

It on this basis that advocate that we her interests his or best light have expressed interest is right. considered as a fundamental This from variety proceedings, ranging in a of statutes rights judge’s finding severance on a complete parental unfitness, to choices in the parental the limitation areas, education, care, safety. example, health Thus, instant matter a situation I believe involves father to a fit burdens two fundamental —the make parenting right decisions for the child and the of the cases, to Many child have its best interests considered. with emphasis their of importance and family personal associations, a provide support for view that child a has process due to right maintain relationships with individuals than parents. other his or her Interestingly, Great Britain come to has terms rights with of children. Council, Lawrence v. County Penbrokeshire 2006 WL 1288355, Div.) at 38 (Queen’s Bench (May EWHC 2006), the House of Lords held that where of “rights a stake, child and are at the child’s rights must be the paramount consideration. If any balancing of interests is necessary, the interests of the prevail.” child must

Before I turning to of these balancing rights, briefly will consider the form relief grandmother of that the seeks.

Custody v. Visitation Generally, the of right visitation derived from the custody. There are three essentially types custody ar rangements custody, partial custody, and visitation. —full “The elements distinguishing arrangements of these are ‘[t]he visits, length existing occur, the frequency they with which in, whose home the take place visits and iswho effective control of the visit.’” during [child] Commonwealth ex Genaro, rel. 500 Pa. 455 A.2d Zaffarano (1983) Note, (quoting Rights “Visitation of Grandparent Objection Over the of a Parent: The Best Interests of the Child,” (1976-77)). 15 J. Fam. L. Full custody denotes care, control, of a maintenance all including child physical legal aspects custody, and the child resides the person custody whom was awarded. Black’s Law (7th 1999). Dictionary 390 ed. normally represents period

Visitation access non- custodial It individual. differs from full in that custody individual, child does not and, dwell with the non-custodial although can responsible individual for the care child, he or safety she not make important deci- (7th sions the child. Black’s Law Dictionary ed. the one 1999). upon and authority custody Full confers visiting. privilege opposed it is placed in whom custody have However, partial visitation and Pennsylvania, Here, to the Commonwealth. peculiar somewhat meanings child wherev- opportunity is limited see visitation of the custodial be, only presence in the might he or she er individual, include the remove does not environment, Partial visita- briefly. even from that presence the custodial individual. tion a child out Scott, 240 Pa.Su- (citing A.2d at 1182 Scott Zaffarano, 455 (1976)). of this 288, 290 It is because 368 A.2d per. distinction, the statute Assembly the General amended that or custo- partial to seek either visitation grandparents permit or dy both.

Standard of Review conflict, must apply are in we Where judicial sensitive scrutiny properly that standard generally agree I sides. While interests both individual any scrutiny applied must Majority that strict find that a fundamental I would right, infringement re- us, the of review such as that before standard matters balancing of fundamental scrutiny both strict quires Thus, visitation, trial determining rights. grant whether child, judges must the three interests of: weigh competing of the parent, interacting and the state. The interests child, by and the are societal parent, shaped When considered family. of the definition of perceptions assigned the value each together, weight given and to be appropriate these interests form and define the standard applied. interests,

In I believe that the child competing balancing in being The an paramount is the focus. child has interest companion- by provide protection, cared for an adult will who to deter- may the court seek ship, upbringing. Although views, often una- mine the child’s interest the child’s own adult-spokesperson the views of the voidably by defined currently resides. whom

The ‘best interest’ child’s is also not controlled by whether or the non-parent make ‘better’ would or parent, by whether the or non-parent would afford the child a ‘better’ background superior or creature comforts. Nor is the child’s best interest controlled alone by comparing the depth of love and affection for the child by those who vie Instead, for his or her companionship. in ascertaining the interest, child’s best the court must be guided by principles reflect considered social judgment. this Common- wealth, those are principles subsumed an within extensive scheme. statutory

The parental interest is the next weighed concern to be judge. the trial parents’ interest in the custody and companionship of the child already has achieved heightened legal significance and has been elevated to a fundamental right. factor, The parental interest is a I strong but believe child, still must accommodate the as an individual, to have his her best interests considered. Al- interests, though third-party factors, so-called external then be only considered the court after resolving those Often, interests that are non-parents, fundamental. especially grandparents, form an emotional bond with the child. They may seek to perpetuate a continuing relationship with child through visitation. Although they may sometimes enjoy protected a interest in the of the child companionship when standing that, in loco I parentis, agree within the legal the landscape, interests of the grandparents are entitled to little weight' to the comparison of stronger interests the and the parents greatest children. Their only consideration enters into a determination of the child’s best interests.

Finally, the court must weigh the interest of state the protecting the physical emotional and health of its minor citizens and their ensuring proper development. The broader state, of form the that is society, has concern to relative the form and function of the family Society’s unit. interest the family stems from family’s unique ability to teach children another, to care for develop one to of community, sense citizen- productive is essential for knowledge gain ship. When particular result.' promotes interests

Each these result of a contest I believe that together, considered Furthermore, I' be clear. interests should competing between themselves, interests, determine the will conclude that of grandparent to strike. In the context balance appropriate visitation, the interest interest over predominates best and the of the child’s of the consideration grandparents, weight. is entitled to interest Analysis Rights Fundamental There is application. is of neutral Pennsylvania The statute text that the statutory no contained within the presumption any particular child be promoted best interest of the will standing and sets The statute confers disposition. custodial standard, rights court the relative and then the balances parties. protect chil- visitation statute is meant grandparent Our in their well-being by providing dren’s for visitation when It of access best interests. also seeks preserve pf specific certain grandchildren to their under grandparents policy preliminary the declaration of circumstances. statute, custody and visitation the: Assembly public policy declares that it is the

General child, Commonwealth, interest of the when the best continuing a reasonable and contact child assure both after a or dissolution parents separation responsibilities sharing and the marriage rearing continuing both contact parents children child or when deceased, divorced or separated. added). statutory (emphasis specific § Pa.C.S.

section states: deceased, the

If an unmarried child is granted rea- of the deceased be grandparents parent both, or custody rights, or partial sonable visitation finding partial the court upon unmarried child both, or visitation or be in rights, would the best of interest the child would and not interfere with the parent- child relationship. The court shall consider amount of personal contact the between or of grandparents prior deceased and the child the application. § Pa.C.S. The competing constitutional and child must be evaluated of the light government’s position within Further, these areas conflicting interests. the Common- wealth has a legitimate concern in aiding discharge primary and fundamental respon- duties and sibilities of the family regard to child safety. welfare and The state has safety a definite and discrete interest in the and welfare children and exercises this responsibility in a num- Also, that, ber of different ways. requires Court when competing fundamental constitutional presented, interests are or multiple conflict, constitutional face concepts we must for harmony search to provide each a field of operation. We have previously given voice benefits intergenerational relationship between grandchildren. ... grand- have the natural their

[Children] know parents and ... benefit from greatly relationship. Grandparents give unconditionally-without entangle- love ment with authority or discipline, pres- often without sures other responsibilities. burdensome Children derive greater sense from attention grandparental [worth] better see place their the continuum family history. Wisdom is that can be imparted attained else. The nowhere benefits derived society from of his her [child] grandparents have frequently upon by been touched psy- chologists psychiatrists.... They are bene- substantial fits and should not lightly regarded by our judicial system. (1994) Piller,

Bishop 536 Pa. A.2d 978-79 (internal omitted). footnote As ably recognized by one our sister states:

Moreover, of grandparent-grandchild importance confirmed. See of children has been in lives relationship Barranti, Grandparent/Grand The Ramirez [Chrystal C. an Era Volun Relationship: Family Resource in [(1985)] (de 343,] Bonds, 346-47 Family Relations tary Woodward, Baranowski, and Kornhaber scribing studies contention). of that support and Mead in and The emotional attachments between in unique that been described as grandchildren have from intensi- exempt psycho-emotional relationship relation- parent/child that exists ty responsibility and nurturance, love, acceptance and which ships. grandparent/grandchild found grandchildren have immunity a natural form of social relationship confers other get any person cannot from they children that institution. that, of a in the absence suggested

Commentators have relationship, experience children grandparent/grandchild nurturance, security. and deprivation support, emotional Indeed, that the com- posited Kornhaber Woodward they requires emotional children plete well-being direct, derived, their merely not link with have a an the notion that when grandparents. Mead advanced family relation- intergenerational not have individual does historical sense resulting there is a lack cultural and ships of self. (2003) Bradt, 203, 210-11 v. 827 A.2d

Moriarty 177 N.J. omitted). (internal quotation citations and marks Indeed, it clear that such benefit the decisional law makes family. example, For parent-child is not limited to nuclear Cleveland, 97 S.Ct. City in Moore East U.S. (1977), an invalidated Supreme 52 L.Ed.2d Court dwelling in a to certain members limiting occupancy ordinance living in her family applied grandmother of a unit not were cousins and grandsons, home with her two who argued plurality In his Powell siblings. opinion, Justice Yoder, line to extended applied Pierce of cases Meyer, not though those decisions had family relationships, even such involved associations. Extolling virtues the ex- family, tended Justice Powell stated: grown just our citizens have up [Millions such an most, environment, surely, from profited have it. Even ... a family decline extended ... households [has] civilization, erased accumulated gained wisdom over that, the centuries and honored throughout history, our supports larger conception choice, of the family. Out of necessity, family or a sense of responsibility, been has common for close together relatives to participate draw in the duties and the satisfactions of a common home.... of Especially adversity, times such of as the death need, spouse or economic the broader has family tended to together come for mutual sustenance and maintain rebuild a home secure life. 504-05,

Id. at 97 S.Ct. 1932. Carson, Commonwealth ex rel. v. Spriggs Pa. (1977), 368 A.2d where we overruled the “tender years” custody presumption that should be moth- awarded to “Courts, fathers, ers rather than we stated: wary should be of deciding matters as sensitive as questions of the Instead, invocation of ‘presumptions’. we believe that [our] inquire courts should into the circumstances and relationships of parties all the involved and reach a determination based solely upon the facts the of case then before the Court.” I believe the reasoning' same should the apply where custody dispute is between and third parties. Assembly

The General has directed the focus the grand parent custody and visitation statute to the right fundamental of the best interests of the child. The courts of Common wealth routinely have focused on the best interests the child cases, in custody and visitation recognizing while still fundamental parents to raise the See Bishop, child. Hooks, (1980); Ellerbe v. 490 Pa. 416 A.2d 512 Zaffarano; Miller, (1984); Miller 329 Pa.Super. 478 A.2d 451 etc. Constitution, Pennsylvania Pursuant the child has a have his or her best interests considered. In balancing children, the fundamental of parents rather, factor; should overriding courts single there is no emotional, intel- every physical, fact relevant consider Parenthood, lectual, moral, well-being a child. spiritual a factor of always significant though paramount, will weight.

Child’s Best Interests specific all factors and Courts should consider relevant Therefore, involved. parties circumstances the actual interests, con- judge may best the trial determining child’s (1) of disruption such factors as: the amount extensive sider (2) life; suitability in the would cause child’s visitation supervi- to the amount of respect home with grandparents’ child; (3) sion received the emotional ties between (4) and the the moral fitness grandparents; (5) the distance the child’s home grandparents; between (6) home; potential grandpar- for the grandparents’ the child parent’s general disciplining ents to undermine (7) visitation; are as a result of whether the em- employed and the associated with such responsibilities (8) that exists hostility the amount between ployment; (9) of the willingness the and the grandparents; and the the concept fundamental that accept is not to rearing parent’s responsibility.and the child the by grandparents. be interfered with the addition, the

In the trial court determine should whether emotional health will benefit from re-establishment child’s relationship. grandparent, the the as grandparent-child Was case, coping an for the child in important resource (1) factors parent? the death of the Other could include: following in school suffered performance whether the child’s (2) has interests parent; the death of the whether the child sup- of school and home that or outside would advanced (3) the of the closeness ported grandparent participation; parent’s family members of the deceased child other to maintain that opportunity relationship without (4) life; presence the child’s child’s wishes.

Requirement of Harm Experience has us the taught lesson that not relationship is an infallible guarantee that a parent will provide the care and concern essential to a child’s proper cases, development. such the General has Assembly estab- lished guidelines and procedures permit that state-enforced custody only delinquent when child is found or dependent law, abuse, defined or in cases of deprivation, neglect. Thus, the extreme solution termination of parental rights rests on a demonstration of a parent unfitness or upon harm to the child.

At the other end of the custody spectrum clash between the child’s and the inevitable dissolution the family that custody attends a dispute between husband and wife. These disputes have been long guided by the controlling direction to custody award consistent best interests of the child. ground, middle where third seeks party partial custo-

dy where there is no state-enforced does custody, stringent demand the harm-to-the-child standard resolu- I tion. requires believe the delicate balancing rights. Troxel specifically declined to address the “harm” so-called standard, and it also failed articulate an care” “inadequate requirement. Rather, process right the due Supreme Court important affirmed Troxel is but limited: a court may not override a parent’s decision about the care or of a because determines simply the court that the decision is interest, not in the child’s best as the trial court did Troxel regarding grandparent’s Instead, interest in visitation. court must fit presume parent’s that a decision is in best child, interest of court reach a decision contrary to the parent only wishes of the if there is evidence sufficient to overcome that presumption. goes Troxel no further. I am inclined to believe that Troxel plurality would have used if stronger language thought it that harm to outweighed upon showing be may only discretion the child. weight” give special state to “some require

Troxel does a child. regarding of a in decisions to the interest Granville, 57, 73, 120 S.Ct. 530 U.S. Troxel However, (2000) Pennsylva- opinion). (plurality L.Ed.2d here, to that responds Majority applies nia as the statute process the father’s due appropriately protects mandate process his due Father received deference rights. requires. that Troxel rights

Therefore, I cannot assertion the Dissent adopt the be of harm to the child must shown before showing some ignores the Act. That contention implement can courts child. in the legitimate interest welfare state’s

Conclusion lives; when alter children’s proceedings immutably

Legal cannot occurs, paramount they must be their interests application construe the strictly We protect themselves. of the tension between statutes because

parental rights compelling of familial association and liberty I of children. am the welfare protecting state interest grounded that this state interest compelling convinced or her best the child to have his the fundamental parens on the state’s It is also based interests considered. the fundamen- tips which the balance of patriae responsibility, of the fundamental tal and child favor rights compelling are no less of the child. Those interests competing aby grandpar- the conflict involves an interest asserted when ent. duty our perforce guided decision here must

Our preservation rights. public policy sound promote society, interpret our should laws state of we current adheres to the way in such a of our Commonwealth the best interests legislature promotes mandates of our families, extended, that can immediate or in stable children has legislature homes. Our nurturing supportive provide partial to visitation and on the spoken custody of grandchildren their under limited conditions. Our is to duty implement the law accordingly. grandparent occasional,

Because visitation is temporary and upon intrusion resulting parental authority By is minimal. accounts, all the father in ease a has close relation- very his son I ship with and cannot see that this child’s spending reasonable amount of time his grandmother will adverse- ly affect his relationship with his father. Grandparent visita- tion policy is social issue more left appropriately Assembly, General has the ability public which to hold hear- debates, issue, ings and to examine the appropri- to draft legislation addressing ate balancing the inter- ests of the various parties involved. That is precisely what Legislature did in enacting grandparent custody and visitation statute.

Chief Justice dissenting. CAPPY view, my the trial court unconstitutionally applied Penn- sylvania’s grandparent partial statute, custody and visitation I, therefore, § Pa.C.S. in this matter. respectfully dissent. begin

I by noting principles three espoused Majority First, agree. Clause, I which under the Due Process enjoy do the constitutionally protected fundamental to make care, decisions concerning custody, and children. See 358-59, control their Majority Opinion at Second, A.2d at 885. because trial court infringed upon (“Father”) Appellant Fausey’s Sháne Kaelen, make concerning decisions his son trial count’s actions taken pursuant § to 23 Pa.C.S. must 358-59, id. survive strict scrutiny. 904 A.2d at 885. Cf lastly, Third and in order for the trial court’s actions taken pursuant scrutiny, Section 5311 survive strict its actions must promote compelling state interest be narrowly effectuate that interest. See id. Unlike the Major- tailored ity, principles these lead me to conclude that the trial court unconstitutionally applied Section in this matter. in protect- has a interest undoubtedly compelling state said, That of children. the health and emotional welfare ing regarding a fit decisions parent’s court finds that unless a cause causing or will child’s contact with a child, the child’s protecting the state’s interest harm to the implicated. welfare deci

Here, did not determine that Father’s the trial court harming contact Ms. Hiller were Kaelen’s regarding sions thus, welfare, the state’s compel harm Kaelen’s or would implicated. not ling protecting interest in Kaelen’s welfare was Rather, Father to a fit but never the court found be presented that Ms. Hiller sufficient evidence theless concluded regarding that presumption to rebut Father’s decisions interest Ms. Hiller are in Kaelen’s best Kaelen’s contact with and, custody.1 finding, granted partial on this Ms. Hiller based manner, Father’s acting supplanted in this the court By preclude decision limit or contact constitutionally protected to and Ms. Hiller. In of Father’s constitu place between Kaelen decisions, and Ms. injected the court its tionally protected simply has ideas of Kaelen’s best interests. The state Hiller’s parent’s to interfere a fit funda compelling no interest a right regarding mental to make decisions child’s contact with else, or simply grandparent anyone a because court, a a different decision is including state thinks that for the child. Troxel v. Gran better or more desirable See (2000) ville, 57, 72-73, 530 U.S. 120 S.Ct. 147 L.Ed.2d (“[T]he permit Due Process Clause does not State (plurality) make on the infringe simply judge because a state believes rearing decisions made.”). no the state had ‘better’ decision could Because re compelling interfering interest in decisions with Father’s Hiller, Kaelen’s contact the trial court’s garding with Ms. evidentiary I trial what note that the court did state standard proof applied sufficiently determining Hiller rebutted this Ms. mentioning gave presumption. “special Other than that the trial court Hiller, regarding weight” lo decision Kaelen’s contact with Ms. Father's Moreover, my Majority apparent the view, does not address this error. weight” Majority fully explain “special what is in this does not give weight” parent's "special or to a context how court decisions. § of 23 application Pa.C.S. 5311 does not strict survive scruti- ny.2 view, my due that a process requires court must make finding parent’s

threshold that a fit or concerning decisions his her child’s contact with a grandparent causing are or will cause the child harm before the court can infringe upon these I constitutionally protected decisions. place would burden of proving such harm on the grandparent. the funda Given mental nature of the constitutional involved in these types of cases and the presumption a fit acts in the Troxel, child, best interest of his her or see U.S. 2054, I require demonstrate, S.Ct. would a grandparent evidence, clear and convincing that absent granting an order grandparent custody visitation, the child is being and/or 754-57, Kramer, will be harmed. See Santosky 455 U.S. (1982) S.Ct. 71 L.Ed.2d 599 (discussing standards of proof, and other stating, among things, that the clear and convincing evidence standard is appropriate “when individ ual interests at stake a state both proceeding ‘particu are larly important’ and ‘more substantial than mere loss ”). If money’ a grandparent is able to meet this standard proof, then the trial court an narrowly must craft order that is to protect tailored the welfare of the child. then Only is infringement upon court’s a fit parent’s right to make deci sions or her regarding his child’s contact a grandparent constitutional.3

2. I compelling Because believe no implicated state is interest matter, express thoughts I my this need not as to whether trial court I, however, narrowly order is respectfully my disagree- tailored. note Majority’s scrutiny ment with the narrowly prong under the tailored analysis. importantly, its Most is an applied” this "as constitutional challenge Therefore, and not “facial” challenge. constitutional proper scrutiny focus of our should be whether the Commonwealth's i.e., pursuant action taken to 23 § Pa.C.S. the trial court order— 5311— narrowly promote is compelling tailored to the state's interest. Our is, itself, should narrowly focus not be on whether Section 5311 See, 360-61, e.g., Majority Opinion tailored. A.2d at 887. that, view, important my 3. I find it promotes to note this construct hand, best interest of the child. On the one if a this, to unable demonstrate harm in such cases court not parent's interfere with the decisions. What is left fit is a who Ms. to that I am insensitive express I wish Lastly, Under with Kaelen. relationship to foster her Hiller’s wish however, matter, in this presented the circumstances Father’s decisions protects United States Constitution vein, I find contact her. Kaelen’s concerning her plurality shared Justice O’Connor thoughts following pertinent: to be in Troxel opinion world, always seek cultivate parents might

In an ideal grandchildren. their between bonds however, perfect, is far from our world say, Needless relation- intergenerational such an in the decision whether is for the any specific case ship beneficial would in the first instance. make 70, 120 Troxel, 530 U.S. at S.Ct. reasons, Superi- I

For would reverse order these or Court. A.2d Pennsylvania, Appellant

COMMONWEALTH WILEY, Appellee. Allen Pennsylvania. Supreme Court of 19, 2006. Submitted Jan. Aug. 23, 2006.

Decided hand, On if a presumed to act in the best interests. the other child's harm, then court left with grandparent adequately demonstrates narrowly protect the drafting which is an order tailored task nature, order, very promotes of the child. Such an its welfare child. best interest

Case Details

Case Name: Hiller v. Fausey

Court Name: Supreme Court of Pennsylvania

Date Published: Aug 22, 2006

Citation: 904 A.2d 875

Docket Number: 197 MAP 2004

Court Abbreviation: Pa.