*1 (a)(2) (which than subsection pertains to “DUI-general impair- ment” alcohol”), rather than “DUI-highest rate of it is in all (a)(2). other respects identical to subsection The difference in the statutory BAC threshold is immaterial to the analysis employed Duda. That reasoning fatally undermines the trial disposition court’s in the present case. reasons,
For the foregoing the order of the Court of Com- 9, 2005, mon Pleas dated November is reversed insofar as it ruled that Section 3802 of the unconstitutional, Vehicle Code is and the matter is remanded for further proceedings consistent Opinion. with this
Chief Justice CAPPY files a concurring statement in which Justice CASTILLE and join. FITZGERALD CAPPY,
Chief Justice concurring. join I the majority opinion based on this Court’s majority Duda, decision Commonwealth v. (2007). If I slate, were on writing a clean my position
would be that expressed in Mr. Justice Castille’s dissenting Duda, opinion I joined. which
Justice CASTILLE and join FITZGERALD this concurring statement.
Submitted Nov.
Decided June *3 Leigh Gray, Esq., Sharon for Jean David and Schmehl. Tract, Gregory Henry, Esq., David Kauffman Henry, and for Ann Reading, Wegelin. Schmehl,
Perry Perry for Schmehl. Pappert, General, Gerald J. Esq., Attorney Office of for of Pennsylvania, Commonwealth General. Attorney C.J., CAPPY, CASTILLE, SAYLOR, BEFORE: and EAKIN, BAER, FITZGERALD, BALDWIN AND JJ.
OPINION Justice SAYLOR.
The question presented whether 5312 of the Domestic Relations Code violates the Equal Protection Clause of the United States in providing Constitution for grandparent divorced, visitation child when child’s parents are or months separated for six engaged proceedings, in divorce or more. 12, 2002, during separa- Mother Father’s November
On regarding them tion, was entered between order they divorced. children. Five months later were their two 29, 2005, permit chil- after Mother refused April On (“Grandparents”) pick up paternal grandparents dren’s during period custody, Grandpar- her children from school Pleas of Berks an action in Court Common ents filed custody.1 Al- partial County seeking under Section claim, Grandparents parents’ Father his though supports Pa. necessary party. him as a defendant as joined action, as- Mother moved to dismiss the No.1915.6. R.C.P. Equal her Due Process and serting that Section 5312 violated under the Fourteenth Amendment rights Protection Constitution.2 United States partial to seek grandparents enables challenged statute the child’s grandchild of their when
custody or visitation or divorced, proceedings, in divorce have engaged parents or for six months more. See Pa.C.S. separated been provides: the statute particular, § 5312. dissolution, subsequent
In all for com- proceedings or continuing thereafter proceeding mencement more, six or separated have been for months may, grandpar- or upon application the court partial custody or visitation party, grant ent reasonable both, finds that or to the unmarried child if it rights, both, custody, or be in the rights or would with the best interest of the child and would interfere The court shall consider the relationship. parent-child grand- amount of contact between personal *4 application. of the and the child prior parents party divorced, partial to Grandparents cooperated have custo- are but seek dy- Clause, part provides Equal pertinent that no State 2. The Protection any protection "deny jurisdiction equal the person shall within its Const, §XIV Process the U.S. amend. 1. The Due Clause laws.” life, liberty, "deprive any person or provides that no shall State law; ...” property, process Id. without due contrast, partial Id. In standing custody obtain is not afforded to children are grandparents parents whose married living together.3 disparate This treatment be- tween intact families—married parents living together- —and separated parents, divorced or Mother argued, equal violates protection principles.
The trial agreed, court Section 5312 violates finding Protection Clause it Equal because treats intact impermissibly differently families from who parents separat- are divorced or ed, complaint and dismissed Grandparent’s addressing without the merits of their claim. trial court noted that “prohibition against treating people differently under law does not preclude resorting from to legis- Commonwealth lative 05-5526, classifications....” v. Wegelin, Schmehl No. (C.P. 29, 2005) at 3 slip op. Berks July Curtis v. (quoting Kline, (1995)). But when that classification burdens a fundamental the court right, explained, strict which applied, requires the classi- fication to necessary be for a compelling government interest. id. Because the classification under Section bur- dened a parent’s right regard- fundamental make decisions children, ing of his upbringing or her the trial court held that, uphold legislative classification created statute parents between living who are married and together versus those who are separated, divorced or such classification must necessary be to vindicate a compelling government inter- est. See id. at 6.
The trial court found that no government inter- classification, est existed for the that, noting although the longer are no together, it does not logically follow that state intervention is In particular, necessary. the court ob- served: and,
Both parents remain during periods of their children, parent either can provide access to their parents. There is no compelling reason deceased, 3. Under a child’s may partial custody deceased seek or visitation. See 23 § Pa.C.S. 5311. *5 586 up Mother require give can for the state to that see
Court children, the so that Father’s parents of her time more separate of visitation from periods have their own can custody.... There is no com- Father has visitations while reason, potential for in fact it would create pelling harm, parents would separated/divorced if a child of greater to, case, periods more of subject potential in this be [two] A an child of partial custody/visitation. ordered Court child, freedom live their life as absent intact has to is no their time. There reason scheduling ordered court with more separated/divorced parents burden a child restricted child- already interference in their court ordered can sure there is contact with Their make parents hood. grandparents. Schmehl, 05-5526, slip No. at 8. op. Rule Proce- Appellate its under subsequent opinion 1925(a), earlier ruling, trial court reiterated its
dure explaining: live each must
Although longer together, no parents free from court enjoy right, continue fundamental interference, upbringing to make decisions about children, including the decision about with whom their It is to note that this court’s children important associate. from ever [Grandparents] seeing preclude decision does not children, do may during periods they which no custody. merely It asserts there is father’s the children of di- justify subjecting reason to parents periods to additional Court separated vorced visitation, ... nor custody requiring ordered Mother her so Father’s periods relinquish such court intervention may periods, have their own married or if the were permissible would be living together. (C.P. 05-5526, at 3 slip v. No. Berks Wegelin, op.
Schmehl 2005). Court, Grandparents appealed September of a jurisdiction of decisions appellate has exclusive which to be statute unconsti- pleas court of common determine 722(7). § 42 tutional. See Pa.C.S. constitutionality presents
As the of statute a ques law, v. tion of our is plenary. review See Theodore Delaware Dist., 321, 333-334, School Valley (2003) Police, (citing Pennsylvania Orchid State Purple (2002)). A Pa. statute enacted duly A.2d presumed General valid and will not be Assembly declared *6 “clearly, palpably unconstitutional unless it violates plainly Orchid, 171, 178, Pa. Purple Constitution.” 572 at 813 seeking A.2d at 805. The party presumption overcome the validity of of heavy persuasion. bears a burden Common See wealth, 146, Dep’t 155, 563 Transp. McCafferty, Pa. 758 1155, 1160(2000). A.2d
Grandparents the trial court’s challenge determination that 5312 Section non-intact families’ equal protection violates rights. Although Grandparents concede that Mother’s inter- care, direction, est in the and control her children is a right, fundamental assert that Grandparents pro- the need to tect children of government non-intact families is a compelling interest, and the forth in standards set the statute are narrow- ly tailored to such In particular, interest. Grandparents note that, statute, under the grant partial custody or visita- automatic; rather, tion is not it depends on several factors they that must establish. contrast,
In
Mother
argues
a state
not interject
should
its own beliefs regarding parenting decisions or thwart a
parent’s ability to raise her
children
she
fit.
sees
She
maintains that no compelling interest exists to treat married
from
differently
separated parents who are still alive
fit
and still
to make
regarding
decisions
their children. Al-
divorced,
she
though
contends,
and Father are
Mother
it does
not logically
follow
state intervention is necessary.
342,
In Hiller v. Fausey,
(2006),
denied,
-,
1876,
U.S.
127 S.Ct.
588
Observing
right
has died.4
when a
grandchild
care,
control of
custody, and
concerning
decisions
make
rights
oldest fundamental
“is one of the
one’s own children
the Fourteenth
Due Process
by Clause
protected
[of
Amendment],”
358,
Troxel v.
(citing
at
Id. at 904 A.2d interest, 2059). found In of such Court at view S.Ct. the court to required in that it to be tailored statute granted and visitation would custody that the partial ensure consider relationship, the parent-child not interfere with willingness and relationship prior pre-petition order, a court and deter- access to the child without provide interests of the the best grant mine that such would serve Additionally, at under child. id. at 904 A.2d law, afford a presumption case the courts must relevant meaning- determination of parent’s favor of the 362-63, the balance in her favor. See id. fully tips at 887—88. on equal case addressed the trial court present was process as to substantive due
protection grounds opposed and 5312 of the Domestic Relations principles involved Section Code, subject opposed to Section which was context, however, In process Hiller. this the substantive due equal protection inquiries essentially are identical. regard, inquiries both a threshold assessment employ interest concerning weight parental to be ascribed to the scrutiny, to determine the level of and both em- appropriate in the ploy balancing application formulation such tested, hand, government’s which the interest is on the one infringement to determine it an represents acceptable whether (for on due parental purposes substantive hand, it process), and on the other whether is sufficient (for support particular equal protection pur- classification poses). Additionally, addressing Sections 5311 and custody in circumstances visitation and divorce, involving respectively, the death of a both concerned the health and emotional protecting the state’s interest in parens patñae welfare children under *8 is family continuity disrupted. circumstances where child’s Hiller, in 5311 able to the due Finally, was withstand a classifi- challenge only employs because the statute process grand- cation scheme its reach to a limited class of restricting (those died) words, children other whose have —in 590 at the heart of the determination that
classification was
narrowly
statute
tailored to
state
was
serve
in
the health and emotional
protecting
welfare
Hiller,
359-60,
children. See
Here,
challenges
equal
Mother
as
violation of her
intact
non-
protection rights
classification between
the role
intact families under Section
Given
allocated
on
authorizing
infringement
parent’s
such classification
an
decisions,
fundamental
to make
for the
right
child-rearing
Hiller,
it
fully
reasons elaborated more
is clear that
generally
See
trial court correctly applied
scrutiny.
strict
(1999)
21, 29,
Coyne,
Smith v.
1022,
1025
(“Strict
is
to classifications
applied
affecting
suspect
Jeter,
see also
v.
Clark
class or fundamental
486
right.”);
U.S.
1914,
(1988).
456, 461,
1910,
Thus,
108
591
Hiller, however,
(2004).6
936,
we believe
947
Consistent with
this test
the trial court ascribed insufficient
applying
government’s
the children’s well-
weight
in the context
statute address-
being,
narrowly-tailored
of this
in non-intact families.
ing grandparent
involvement
In this
under
5312 is not
regard,
classification
Section
families, but,
on
non-intact
like
antagonism against
based
5311,
reflects circumstances where the child’s
Price,
Seagrave
environment has been disturbed. Accord
v.
(2002)
433,
339,
(“Because
349 Ark.
79
344
the differ-
S.W.3d
ences in the circumstances between married and divorced
parents established the
to discriminate
necessity
between
classes, the [grandparent
statute at issue
visitation]
would
Blixt,
unconstitutional.”);7
Blixt v.
649,
be found
437 Mass.
equal protection
process settings,
In both the
and substantive due
scrutiny
ways,
strict
has been framed
the courts in various
but its
squarely
conception
most common formulation centers
on the main
"narrowly
government
compelling
tailored measures that further
inter-
499, 505,
1141, 1146,
California,
ests.”
Johnson
543 U.S.
125 S.Ct.
(2005).
effectively appears
with
tional,
facially
the threshold issue of whether Section 5312 is
unconstitu-
so,
presented.
doing
with which we are now
In
Justice Baldwin
incorrectly suggests
ignored
presumption
that we have
in favor of a
(when
specifically
fit
presumption
we have
indicated that such
assessment),
given
must be
full effect in a merits
and concludes that
Grandparents
presumption (although they
have failed to overcome the
so,
opportunity
have
petition
not had the
to do
because their
was
dismissed
the trial court based on its determination that Section
unconstitutional).
facially
Dissenting Opinion,
5312 was
op.
605-06,
Chief which dissenting opinion BALDWIN files Justice joins. Justice CASTILLE CAPPY, dissenting. Justice
Chief the extent that dissenting opinion to join I Justice Baldwin’s interest compelling it concludes that the state has no § under 23 Pa.C.S. by marital status classify parents join I challenge, constitutional do not Because this is a facial facts of this case underlying delves into the any analysis which but, rather, face to determine if it consider the statute on its constitutional classification that survives permissible creates majority because I believe the scrutiny. separately I write in classifying the state’s fails to establish marital within the framework of according to status protection. equal principle equal protec-
The essence of the constitutional in like circumstances persons is that like tion under the law incarcerated, relocated, denied or has been when a has beyond grandparents' control. due to circumstances *12 Although claim that the the trial court did not address Mother’s process rights, due for the reasons statute violated her constitutional herein, obviously trial must consider Hiller and our stated the court finally resolving claim. present rationale in such
595 Albert, 563 Pa. similarly. will be Commonwealth treated 133, 1149, (2000). prohibition against 1151 The 758 A.2d the differently preclude under the law does not treating people classifications, legislative from resorting Commonwealth than provided are reasonable rather that those classifications object of arbitrary relationship a reasonable and bear Id. There legislation. are different levels classifications by weighed, and with the standards which classifications that highest for classifications bur- scrutiny level of reserved den 1152. If suspect right. class a fundamental Id. at impinges right by classification a fundamental protected Constitution, scrutiny. then subject it is strict Id. 129, 512 Pa. (citing City Philadelphia, Smith v.
306, (1986)). containing 311 A statute of this classification kind presumption validity, will not be entitled to the usual 415, as the asserts. Danson v. majority Casey, See (1979). Rather, 399 A.2d 372 must Commonwealth establish its right that interference fundamental compelled interest, that by legitimate some state and interference is to be the least means tailored drastic Danson, of accomplishing objective. that 399 at A.2d requires Strict that the necessary classification be effectuate the state’s interest. Commonwealth v. Bell, (1986) added). Pa. A.2d (emphasis does majority recognize right have the care, make concerning decisions custody and control their children, and this is a fundamental right protected by the Process Due Clause. It also properly asserts state’s legitimate interest in the welfare children. Howev- er, the focus the inquiry equal protection under is the legitimacy of the by classification created the statute. The majority correctly hand, states the law in this area on one but then asserts the equal protection inquiry “essentially identical” inquiry to an of substantive due process. Majority p. fact, Opinion supra. A.2d caselaw majority cited does refer to the inquiries similar” “essentially identical” but rather as “substantially while it is due process equal protection true that involve *13 the very in that are
substantially inquiry concepts similar I alike, in to be a analyses much the do differ what believe the action government critical Both consider whether aspect. state interest and is necessary promote compelling is to interest, to that but narrowly tailored effectuate substantive this under process legislation, due test to the whereas applies test to the classification created equal protection apply we that Khan, 842 Compare the A.2d at 947 by legislation. Bell, words, In other v. Commonwealth the inter- process government’s under due tests strict if the an in- represents acceptable est to determine statute the at issue fringement, equal protection, concept whereas here, the interest is sufficient government’s considers whether I support may quibble to classification. seem to particular use, the language majority over that the chooses to precise however, that a real risk the two I believe there is that conflated. is dis- inquiries problematic be This because will is may divergent tinct lead results. This concern analyses Blixt, by reading borne out a careful of Blixt 437 Mass. (2002), majority N.E.2d 1052 a case cited the governmental it’s contention the interest here is support Blixt, the Judicial Court of Massa- compelling. Supreme chusetts a facial to a visita- challenge considered process equal tion to our on both due statute similar own Id. the at 1056. Under due protection grounds. process, the strict scrutiny court found that statute satisfied because “our tailors it to further the compelling construction [sjtate of a in the welfare child who has protecting disruption unit from harm.” Id. at experienced But, the court although recognized N.E.2d evaluating the classification within the statute standard of analysis, it equal protection turned to it did engage analysis the classification itself served any how Instead, interest. Id. at 1064-65. the Blixt analysis. court its Id. The fact merely repeated process due it concepts substantially so similar makes two Therefore, easy to conflate the two distinct tests. caselaw, interests our constitution and our I protecting small, it highlight important think we but important way in which the tests are dissimilar. above, to come to the
As stated
conclusion that Section 3512
major-
constitutional after an equal protection challenge,
ity
creating
must show that
a classification that
out
holds
different
for
groups
disparate
according
treatment
to their marital status is
necessary
protect
welfare and
At this
I
safety
point,
persuaded
children.
am not
that the
majority opinion
question.
majority
answers
does
correctly state the
to a
respect
scrutiny analy-
law with
strict
sis under
but
equal protection,
then it cites to three cases
*14
jurisdictions.
which are
two from other
inapt;
Seagrave v.
Price,
(2002),
349 Ark.
Having listed these the majority simply concludes directly “Section 5312 is and narrowly tailored to such proffering breakdown” without any independent analysis as to how classifying parents by marital status is necessary to protect the compelling interest of the state. equal Under an protection it analysis, is incumbent upon this Court to first find classification to be necessary a compelling state interest. The majority does not meet this burden.
I assert it is not necessary to group parents into categories based on their marital status order to protect best interests of children because the fact of divorce or separation alone is not a proxy for determining parents which might cause their children words, harm. In other classifying parents by marital status does not necessarily divide the children from the decisions parent’s from their
children at risk
that divorced
suggests
This classification
are not at risk.
who
as
parent,
less fit to
inherently
are
separated parents
or
married,
who
parents
or to
who have
compared
parents
married,
No matter what
conjugate.1
but who
have never
unit, the decisions
ensue
actually
within
might
strife
and care of
as to
cohabiting parents
fit married or
3512, but
status under Section
enjoy special
their children will
This
separated.
the divorced or
not the
decisions
parenting
quasi-marital
on marital or
based
between
distinction
an
serve as
alone can never
Marital status
arbitrary.
status is
any distinction
making
Without
fitness.
parental
indication
status,
presumption
that there is
held
to marital
we have
Hiller v.
interest.
act in a child’s best
will
(2006).
The classifica-
Fausey,
this
contradict
directly
seem to
3512 would
tion
separated parents
that divorced
suggest
presumption
supervision
state
heightened
in need of
necessarily
decisions.
parenting
make their
they
from this Court’s
Furthermore,
distinguishable
case is
There,
Hiller,
this Court consid-
A.2d at 875.
decision
section of the
to a different
challenge
applied
ered an as
peti-
grandparents
allows
Relations Code which
Domestic
*15
23 Pa.C.S.
is deceased.
parent
one
custody
tion for
into two
One
groups.
parents
That statute classified
§ 5311.
other,
alive,
the
and
where
were
parents
where both
group
groups
that these
This
found
two
had died.
Court
parent
one
that the classifica-
similarly
situated
were
parents
of the
state interest
compelling
to the
necessary
tion was
one
This
found
where
of children.
Court
welfare
or her
loosing
his
deceased,
child
be
risk
might
the
Piller,
(1994) (Opinion An-
Pa.
But unlike the situation cohabiting separated from the divorced or is not substitute for might which cause their children determining parents harm. Section which creates classification distin- guishes cohabiting between married or and divorced or sepa- parents, necessarily rated does not compel- serve the state’s therefore, and, ling interest in the welfare of children I believe that it scrutiny. cannot strict withstand I would affirm the order
Accordingly, of the Court of Common Pleas. BALDWIN,
Justice dissenting. concludes trial Majority that the court failed accord proper weight to interest of the State in underlying action and that Section 53121 of Domestic Relations Code regarding grandparent custody and visitation survives a con- challenge stitutional on I equal protection grounds. respect- fully dissent. title the Equal violates Protection provisions the Fourteenth Amendment I, 1§§ U.S. Constitution and Article 26 of Pennsylvania & Therefore, Constitution. I affirm would the decision of the Court of Common Pleas of County. Berks provides: Section 5312 dissolution, proceedings subsequent all for to the commencement proceeding continuing of the thereafter or when have more, separated upon applica- been for six may, months or the court party, grant partial tion of the or of a reasonable both, rights, or or if it visitation unmarried child finds both, rights custody, or or be in would the best parent-child interest of the child and not interfere would with the relationship. personal The court shall consider amount of con- tact grandparents party between the and the child *16 prior application. to the §
23 Pa.C.S. 5312. Albert, 133, 139, In A.2d Commonwealth v. omitted) (2000) (internal set forth the follow citations we ing respect equal protection: with of principle equal protec- The of the constitutional essence persons tion the law that like like circumstances under However, not require it does similarly. will be treated enjoy identical protec- all under all circumstances persons under the right equal protection tion under the law. The from not the Commonwealth absolutely prohibit law does different purpose receiving individuals for classifying treatment, require equal people and does not treatment against treating The prohibition different needs. having not differently preclude under the law does people classifications, resorting to legislative Commonwealth from are reasonable rather those classifications provided to the arbitrary relationship than and bear reasonable words, a object In other classification legislation. of the justifies of difference which upon ground must some rest relationship have a fair and the classification and substantial review must deter- object legislation. Judicial real and any classification is founded on a mine whether than artificial A classifi- genuine distinction rather an one. cation, in violation discriminatory, arbitrary though reasonably if any clause state facts equal protection can be conceived to sustain classification. case,
In
between
instant
section 5312 discriminates
height-
parents, permitting
and divorced
married
who
respect
ened
of state intervention
level
recent decision
majority
relies on our
divorced.
(2006)
Pa.
Relying on in majority the instant case finds that the State has a interest in distinguishing between married and divorced because of the parents disruption intact I family by disagree. respectfully divorce. Hiller’s required procedural result both the protections afforded by and its to a application parent situation when has died.2 As we in Hiller: explained
We ... cannot conclude that always benefit accrues in cases way where force into grandparents grandchil- their courts, dren’s lives through contrary to decision of a contrast, however, fit In parent. to we refuse close our minds to the that in possibility some instances a court may overturn even the decision of a fit exclude a grandparent grandchild’s life, from a especially where the grandparent’s child is deceased and the grandparent rela- tionship is longstanding significant grandchild. Thus, at Id. 886-87. analysis in Hiller does necessari- ly apply beyond the exceedingly narrow circumstance where a has died significant and the had a rela- tionship with the child. clearly
2. We
distinguishable
found section 5311
from the statute at
Granville,
issue Troxelv.
530 U.S.
120 S.Ct.
discriminate between in protecting the state though longstanding has children, not that interest health and emotional welfare While merely proceedings. as a result divorce implicated disputes between for courts to resolve opens divorce door not to make decisions that parents it does make unfit parents, of their children. Divorce proceed- are in the best interests health, safety, morals or ings alone do threaten reason for state compelling welfare of children to constitute inject I state to permitting interference. believe involving grand- fit dispute itself into a between two premise of Hiller grounding violates visitation Troxel, in favor of presumption that fit are accorded a The heightened pro- their their children. regarding decisions interest, recognized this tection of valued fundamental both Troxel, Hiller and should not be altered the marital status fit be parents, otherwise and the Commonwealth should held to no lesser standard for intervention. Hiller we found tailored to serve the state’s one compelling interest in children’s health and welfare when is deceased. We did not find that the desire of the State to foster close between relationships grandparents and grandchildren alone to justify was sufficient court-ordered objection and custody over the of a fit parent.
While the Commonwealth has a interest in pro children, tecting particularly its well-being matters safety, legitimate health and and compelling interest does things not extend to all be might beneficial to children nor upon power confer Commonwealth intrude upon the decisions of a fit parent. The Commonwealth inter may abuse, trauma, preventing vene injury, exploitation, deprivation, severe other forms of comparable significant harm. The United Court Supreme State has indicated that arenas, certain limited such compulsory education and vaccination, compulsory may the State contravene the deci Nebraska, parent. sions of fit Meyer v. U.S. (1923) 625, 627,
S.Ct.
to
care
its
”
things
King King,
better.’
S.W.2d
to ‘make
attempting
(Lambert,
dissenting).
(Ky.1992)
J.
case, requires
at
in the instant
consider-
issue
Section
child,
on
the
the
the
impact
of the best interests of
ation
relationship be-
an established
relationship, and
parent/ehild
§
grandchild.
and
Pa.C.S.
grandparent
tween
unquestionably bene-
Healthy
grandparents
relationships
However,
relationships
the fact that such
fit children.
them upon
the State to force
permit
does not
desirable
merely
a fit
contrary
the wishes of
custodial
children
Majority
to be divorced. The
parent happens
because
irreconcilable with both Troxel
jurisprudentially
Opinion is
strict
that the statute survives
Majority
and Hiller.
finds
(1)
interest
government
compelling
the
has
scrutiny because
“heightened risk of
well-being
preventing
in children’s
(2)
marriage;
of a
by
harm”
the dissolution
caused
interest, requiring,
further that
tailored to
narrowly
statute is
alia,
the best interest of
child
inter
that the court consider
parent-child relationship.
(Majority
and not interfere with
188-89). I
590-92,
at
fail to see how
at
927 A.2d
Opinion, op.
to further
narrowly
visitation is
tailored
grandparent
divorced
the children of
protecting
the dissolu-
by
from the
detriment caused
perceived
tion of
core
unit. Court-ordered
visi-
in-
further the Commonwealth’s
significantly
tation does not
because,
children affected
divorce here
helping
terest in
Hiller,
can
their
grandparents
visit
paternal
unlike
Hiller,
their child’s
time. See
grandchildren during
(“Unlike
Troxel,
which extended
at 887
the statute
time,
any
any
person
standing
custody not
can seek
or
limits those who
specifically
grandparents
but
merely
grandparents,
died.”)3 Moreover,
no allegation
there is
child has
whose
separated parents
are so traumatized
children of divorced
emphasized
grandparents
had
the fact that
still
access
3. Even Troxel
Troxel,
(“Finally,
U.S. at
605 they special separation require by divorce if Even di- exceptional intervention Commonwealth. for the to enough traumatizes children Commonwealth vorce some- family, to intrude on the acquire is grandparents more than court-ordered time with thing significantly purpose to further the Commonwealth’s required safeguarding children’s welfare. too permits easily 5312 a trial court to interfere the death of a decision-making. Hiller involved parental longer exposed could no ensure that her child was parent who element, That essential family heritage. to her which was of a to overcoming right parent to the fundamental decide with associates, the child here. missing whom
Conclusion
Troxel made it clear that when a forum has been created for
visitation,
judge
a court
consider
must
that a fit
acts
the best interests of his or
presume
parent
for
long
parent adequately
her children. “So
cares
his or
(i.e.,
fit),
normally
her children
there will
be no reason for
inject
the private
the state
itself into
realm of the
of that
question
ability
further
to make
best
concerning
rearing
decisions
of that
children.”
parent’s
Troxel,
68-69,
the best interests of the custody should be allocated. However, made, once this determination is Troxel indicates that decisions a fit custodial parent must be accorded the allegation sought we note that there is no that Granville ever to cut off entirely.”). *21 interests of in the best that those decisions presumption showing paren- no living, and child. both With child, have failed Grandparents tal unfitness or harm that presumption. alone overcomes that divorce demonstrate joins dissenting opinion. Justice CASTILLE A.2d 198 PENMAN, Appellant, Andrew
v. OF PROBATION BOARD PENNSYLVANIA PAROLE, Appellee. Pennsylvania. Supreme Court 20, 2007. June ORDER PER CURIAM. NOW, June, captioned the above day this 20th
AND for failure to file a brief. quashed appeal ASSOCIATES, A Penn- AND LYNNEBROOK WOODBROOK Partnership, by through sylvania its General Limited MANOR, INC., Petitioner, Partner, LYNNEBROOK MILLERSVILLE, Respondent. BOROUGH OF Pennsylvania. Supreme Court 21, 2007. June