[J-53-2016]

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.

D.P. AND B.P., HIS WIFE,

Appellants

v.

G.J.P. AND A.P.,

Appellees

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No. 25 WAP 2015

Appeal from the Order of the Court of 

Common Pleas of Westmoreland 

County dated September 8, 2015 at No. 

1750 of 2014-D.

ARGUED: April 5, 2016

OPINION

CHIEF JUSTICE SAYLOR DECIDED: SEPTEMBER 9, 2016

This is a direct appeal from a common pleas court order invalidating a statutory 

provision giving grandparents standing to seek custody of their minor grandchildren. 

The question presented is whether the parents’ fundamental rights are violated by the 

conferral of standing based solely on a parental separation lasting at least six months.

The material facts are uncontested. Appellees G.J.P. and A.P. (“Parents”)

married in 2006 and had three children, all of whom are still minors. Parents separated 

in October 2012, albeit they did not initiate divorce proceedings. Because they were in 

agreement as to custody matters while living separately, Parents never sought court 

involvement and no custody order was issued prior to this litigation. In December 2012, 

Parents mutually agreed that all contact between the children and their paternal 

grandparents, appellants D.P. and B.P. (“Grandparents”), should be discontinued.
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In October 2014, Grandparents commenced this action by filing a complaint in 

the county court naming Parents as defendants and seeking partial physical custody of 

the minor children. See 23 Pa.C.S. §5322(a) (defining partial physical custody as 

physical custody for less than a majority of the time). Grandparents did not suggest that 

Parents were unfit or that the children were in any danger. As their basis for standing 

they relied on Section 5325 of the Domestic Relations Code (the “Code”),

1 which states:

In addition to situations set forth in section 5324 (relating to standing for

any form of physical custody or legal custody), grandparents and greatgrandparents may file an action under this chapter for partial physical 

custody or supervised physical custody in the following situations:

(1) where the parent of the child is deceased, a parent or grandparent of 

the deceased parent may file an action under this section;

(2) where the parents of the child have been separated for a period of at 

least six months or have commenced and continued a proceeding to 

dissolve their marriage; or

(3) when the child has, for a period of at least 12 consecutive months, 

resided with the grandparent or great-grandparent, excluding brief 

temporary absences of the child from the home, and is removed from the 

home by the parents, an action must be filed within six months after the 

removal of the child from the home.

23 Pa.C.S. §5325 (emphasis added).2

 

1

The Domestic Relations Code comprises Title 23 of the Pennsylvania Consolidated 

Statutes. Section 5325 is located in Chapter 53, which governs child custody disputes. 

See 23 Pa.C.S. §5321. The most recent version of the chapter was enacted in 2010. 

See Act of Nov. 23, 2010, P.L. 1106, No. 112, Section 2 (as amended 23 Pa.C.S. 

§§5321-5340). That legislation repealed and replaced the prior version, enacted in 

1985, which had been codified at Sections 5301 through 5315.

2 Section 5324, referred to in the initial portion of Section 5325 above, gives 

grandparents standing to seek custody in various situations not implicated here, such as 

where a child has been adjudicated dependent or is at substantial risk of harm from the 

parents. See 23 Pa.C.S. §5324(3).
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In November 2014, the court issued an interim custody order granting shared 

legal custody to Parents and directing that Grandparents continue to have no contact 

with the children. Thereafter, Parents filed a motion to dismiss, alleging that the portion 

of paragraph (2) of Section 5325 emphasized above violates their Fourteenth 

Amendment rights to due process and equal protection. Grandparents submitted a 

responsive pleading observing it was undisputed that Parents had been separated for at 

least six months.

After briefing and oral argument, the court issued an order granting Parents’ 

motion and dismissing the complaint. In an accompanying opinion, the court agreed

with Parents that Section 5325(2) violates their constitutional rights. The court 

recognized, initially, that Parents have a fundamental liberty interest in raising their 

children as they see fit. See D.P. v. G.J.P., No. 1750 of 2014-D, slip op. at 2 (C.P. 

Westmoreland Sept. 8, 2015) (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 

2054, 2060 (2000) (plurality)). Accordingly, the court reasoned, because Section 

5325(2) substantially burdens that interest, it can only be upheld if it survives strict 

scrutiny – meaning, it must be narrowly tailored to further a compelling government

interest. See id. at 4.

Applying strict scrutiny, the court specified that the state has a compelling 

interest, exercised through its parens patriae powers, in protecting the welfare of 

children who are at risk of harm. In the court’s view, however, Section 5325(2) does not 

embody a narrowly-tailored means of serving that interest because it improperly 

assumes, based solely on the parents’ separated status, that their joint decisions 

regarding the raising of their children are infected by a degree of unfitness. See id. at 6 

& n.3. By contrast, the court pointed to paragraphs (1) and (3) as reflecting more 

persuasive circumstances to allow for grandparent standing. See id. at 5.
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In terms of precedent, the common pleas court recited that, in Hiller v. Fausey, 

588 Pa. 342, 904 A.2d 875 (2006), and Schmehl v. Wegelin, 592 Pa. 581, 927 A.2d 183 

(2007), this Court sustained the application of grandparent-standing provisions

contained in the prior version of Chapter 53. Hiller approved standing in favor of a 

grandparent whose child was deceased, see Hiller, 588 Pa. at 365-66, 904 A.2d at 890

(upholding 23 Pa.C.S. §5311 (repealed)), while Schmehl endorsed standing where the 

parents were divorced and also disagreed concerning the grandparents’ partial-custody 

request. See Schmehl, 592 Pa. at 594, 927 A.2d at 190 (sustaining an application of 23 

Pa.C.S. §5312 (repealed)). The court distinguished those situations, noting that, here,

Parents had jointly decided that their children should have no contact with Grandparents 

– and suggesting more generally that when any two parents who are merely separated 

are in agreement concerning the individuals with whom their children should or should 

not associate, there is no adequate basis to disturb the ordinary presumption, credited

by the United States Supreme Court, that fit parents act in their children’s best interests. 

See D.P., No. 1750 of 2014-D, slip op. at 9 (quoting Troxel, 530 U.S. at 68, 120 S. Ct. at 

2061).

As to this latter point, the court referred to Herron v. Seizak, 321 Pa. Super. 466, 

468 A.2d 803 (1983), and Helsel v. Puricelli, 927 A.2d 252 (Pa. Super. 2007), both of 

which involved married parents who agreed that grandparents should not be given 

visitation or custody. See D.P., No. 1750 of 2014-D, slip op. at 9-10. Although Herron

and Helsel dealt with intact families, the county court interpreted the opinions as 

primarily establishing that courts should not upset a unified decision of the child’s 

parents at the behest of a third party. See id. at 10. Circling back to the equal 

protection facet of Parents’ argument, the court ultimately held that, inasmuch as the 

law presumes married parents living together are able to co-parent their children without 
[J-53-2016] - 5

judicial interference, there was no constitutionally sound basis to support a classification 

whereby married parents who are separated should be treated differently. See id. at 

10-11. In this regard, the court indicated that the statute reflects an inappropriate 

“implicit presumption of unfitness” attaching to separated parents solely on account of 

their separated status. Id. at 11.

On direct appeal to this Court,3 Grandparents acknowledge that Parents have a 

fundamental right to direct the care, custody, and control of their children, thus triggering 

strict scrutiny under the Due Process Clause. They agree with the common pleas court 

that the state interest presently implicated, protecting children’s health and emotional 

wellbeing, is a compelling one. Grandparents contend, however, that the statute is 

narrowly drawn to advance that interest because it favors relationships specifically with 

grandparents, and only when the parents have been separated for six months. 

Grandparents maintain that this materially distinguishes the statute from the one 

deemed constitutionally problematic in Troxel – which allowed standing in favor of any

person at any time, see WASH. REV. CODE §26.10.160(3) – particularly in view of the 

elevated importance extended-family ties have assumed in recent years due to the 

breakdown of the nuclear family.

Grandparents observe that Hiller pointed to this aspect of the former Section 

2311 as being salient in light of the 1985 enactment’s underlying legislative policy to 

promote “continuing contact with . . . grandparents when a parent is deceased, divorced 

 

3 Grandparents initially appealed to the Superior Court, where the matter was docketed 

at No. 1577 WDA 2015. The intermediate court transferred the appeal to this Court, 

which has exclusive appellate jurisdiction of common pleas court decisions holding that 

a statute is unconstitutional. See 42 Pa.C.S. §722(7); see also Pa.R.A.P. 751 (relating 

to the transfer of erroneously-filed cases). While the matter was pending in the Superior 

Court, Parents notified the Attorney General that a statute’s constitutionality had been 

drawn into question. See Pa.R.A.P. 521(a) (requiring such notice). However, the 

Attorney General has elected not to participate.
[J-53-2016] - 6

or separated.” See Brief for Appellants at 11 (citing Hiller, 588 Pa. at 360, 904 A.2d at 

886, and quoting 23 Pa.C.S. §5301 (repealed)).4 Grandparents indicate, moreover, that 

Hiller approved the statutory scheme involved in that dispute because it required that, 

before grandparent visitation could be ordered, the court take into account whether such 

visitation would interfere with the parent-child relationship, whether a strong bond 

between the child and grandparent previously existed, and the child’s best interests 

generally. See id. at 12 (citing Hiller, 588 Pa. at 361, 904 A.2d at 887). Although 

Grandparents do not say so expressly, it is implicit in their argument that they believe 

the same analysis and outcome should obtain under the Due Process Clause in relation 

to Section 5325.

As for equal protection, Grandparents rely largely on Schmehl, which rejected an 

equal protection challenge to grandparent standing under Section 5312.5 They maintain 

that, because that section contained language which is similar to Section 5325(2), this 

Court should apply the same constitutional principles here as it did in Schmehl. In 

terms of the validity of the classification at issue – parents who co-parent while living

 

4 Section 5301 was repealed by the 2010 enactment, see supra note 1, and there is no 

expression of legislative policy in the present version of Chapter 53.

5 Section 5312 stated:

In all proceedings for dissolution, subsequent to the commencement of the 

proceeding and continuing thereafter or when parents have been 

separated for six months or more, the court may, upon application of the 

parent or grandparent of a party, grant reasonable partial custody or 

visitation rights, or both, to the unmarried child if it finds that visitation 

rights or partial custody, or both, would be in the best interest of the child 

and would not interfere with the parent-child relationship. The court shall 

consider the amount of personal contact between the parents or 

grandparents of the party and the child prior to the application.

23 Pa.C.S. §5312 (repealed).
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separately, versus parents who co-parent and live together – Grandparents point out, 

initially, that Schmehl expounded upon the analytical overlap between due-process and 

equal-protection principles in a context involving the protection of children’s health and 

emotional welfare, and they again refer to the breakdown of the nuclear family as an 

important factor justifying the General Assembly’s decision to allow grandparents to 

petition for custody when parents have separated. See Brief for Appellants at 13-15.

Parents’ argument largely tracks the common pleas court’s analysis with regard 

to both the due process and equal protection inquiries. Briefly, they note it is 

established law that, because their parental rights are fundamental, the Due Process 

Clause accords those rights heightened protection.

6

 Parents counter Grandparents’ 

position that the statute is narrowly tailored, arguing: (a) there is no factual basis to 

presume based solely on a couple’s separation that their children are at greater risk of 

harm; and (b) when presumptively fit parents agree that their children should not 

develop relationships with specific third parties, simply pointing to the “blood 

relationship” of those third parties is insufficient to justify an invocation of the state’s 

parens patriae interest. Brief for Appellees at 28.

Addressing the topic of potential harm to the children, Parents offer that, in preHiller cases where the state exercised its parens patriae authority, the fitness of the 

parent was in question due to abuse, neglect, delinquency, or a failure to perform 

parental duties. See id. at 29 (citing Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512

 

6 Parents indicate there is a good reason to consider such rights fundamental, not only 

because of the traditional right of parents to “establish a home and bring up children,” 

Brief for Appellees at 15 (quoting Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 

626 (1923)), but because parents fulfill a role which the government cannot. See id. at 

16 (citing Prince v. Massachusetts, 321 U.S. 158, 166, 64 S. Ct. 438, 442 (1944) (“It is 

cardinal with us that the custody, care and nurture of the child reside first in the parents,

whose primary function and freedom include preparation for obligations the state can 

neither supply nor hinder.”)).
[J-53-2016] - 8

(1980) (affirming an award of custody to the maternal grandmother over the father’s 

objections where the child was eleven years old and had lived exclusively with the 

grandmother for more than nine years), In re Adoption of J.J., 511 Pa. 590, 515 A.2d 

883 (1986) (approving the involuntary termination of parental rights where the father

demonstrated a fixed inability to perform parental duties), and In re Adoption of C.A.E., 

516 Pa. 419, 532 A.2d 802 (1987) (same where a prematurely-born infant needed

ongoing parent-assisted medical intervention, but the mother was unable to provide 

such care and she had previously deprived the infant of care)). Differentiating the 

present situation, they argue that separation does not equate to abuse, neglect, or an 

inability to perform parental duties. As for Hiller itself, Parents read the holding as 

resting on an understanding that the death of a parent would naturally tend to harm a 

child’s wellbeing, and that such harm would be magnified if the child also lost contact 

with a grandparent with whom he or she had a pre-existing beneficial relationship. See 

id. at 30 (quoting Hiller, 588 Pa. at 366 n.24, 904 A.2d at 890 n.24).

Insofar as equal protection is concerned, Parents recognize that Schmehl is the 

decision most closely related to the present scenario and that the Court upheld the 

classification drawn by former Section 5312. Parents do not argue that Schmehl was 

wrongly decided or that it should be overruled. They do contend, however, that the

case is distinguishable because: it did not involve a joint decision by both parents, but 

rather, a situation in which a divorced father supported his parents’ request for visitation; 

and the parents were already subject to a custody order. By contrast, Parents indicate 

they were never subject to a custody order before Grandparents filed their complaint, 

nor do they disagree on matters of custody or visitation. Further, they assert that no 

reason has been alleged why they are less capable than non-separated parents of 

making appropriate decisions about their children’s welfare.
[J-53-2016] - 9

Parents suggest, as well, that many couples who live together lead dysfunctional 

homes and make poor parenting decisions, all of which evidences the arbitrariness of

Section 5325’s implicit assumption that separated parents are less fit as parents than 

those who live under the same roof. Consequently, Parents propose that the legislative 

classification which rests on that assumption does little to advance the state’s interest in 

protecting children or promoting their welfare. See id. at 35-36. Finally, Parents draw 

support for their position from a responsive expression in Schmehl in which former Chief 

Justice Cappy opined that separation and divorce are not valid proxies for ascertaining 

which parents might cause harm to their children. See id. at 36-37 (citing Schmehl, 592 

Pa. at 596-97, 927 A.2d at 192 (Cappy, C.J., dissenting)).

As reflected in our cases and in Troxel, Grandparent visitation and custody 

statutes authorize state action and, as such, they are subject to constitutional 

limitations. Accord, e.g., In re Herbst, 971 P.2d 395, 398-99 (Okla. 1998) (explaining 

that, “mandating the introduction of a third party, even a grandparent, into a family unit 

is state action limiting the parents’ liberty”).7 There is no dispute that Section 5325 

burdens the right of parents to make decisions concerning the care, custody, and 

control of their children; that such right is a fundamental one, see Troxel, 530 U.S. at 

65-66, 120 S. Ct. at 2060-61 (discussing cases); Hiller, 588 Pa. at 358, 904 A.2d at 885;

 

7 Visitation and custody are distinct concepts. See Hiller, 588 Pa. at 346 n.4, 904 A.2d 

at 878 n.4. Visitation pertains to the right to visit a child but does not include the ability 

to remove the child from the custodial parent’s control. See 23 Pa.C.S. §5302 

(repealed). Physical custody refers to the “physical possession and control of a child.” 

23 Pa.C.S. §5322(a). As noted, partial physical custody is defined as physical custody

for less than a majority of the time. See id. Chapter 53 as enacted in 1985 regulated 

visitation and custody, whereas the 2010 version only governs custody. In our present 

discussion, we mention custody and visitation because some of the authority from other 

jurisdictions relates to visitation and the constitutional analysis, for present purposes, is 

materially identical.
[J-53-2016] - 10

and that, as such, it is protected by the Fourteenth Amendment’s due-process and 

equal-protection guarantees. See U.S. CONST. amend. XIV, §1 (forbidding states from 

depriving “any person of life, liberty, or property, without due process of law,” or from 

denying to any person within their jurisdiction “the equal protection of the laws”). In light 

of these factors there is also no disagreement that, to survive a due process or equal 

protection challenge, Section 5325 must satisfy the constitutional standard known as 

strict scrutiny.

The basic features of strict scrutiny, relating to whether the governmental action 

is narrowly tailored to a compelling state interest, see Hiller, 588 Pa. at 359, 904 A.2d at 

885-86, are well established. As expressed in Schmehl, the inquiries per the Due 

Process and Equal Protection Clauses are distinct but overlapping: pursuant to the 

former, the government’s infringement on fundamental rights must be necessary to

advance a compelling state interest, whereas under the latter it is the classification 

inherent in the statute which must be necessary to achieve that interest. See Schmehl, 

592 Pa. at 589, 927 A.2d at 187.8

Broadly speaking, the state, acting pursuant to its parens patriae power, has a 

compelling interest in safeguarding children from various kinds of physical and 

emotional harm and promoting their wellbeing.

9

 See Hiller, 588 Pa. at 359, 904 A.2d at 

 

8 Strict scrutiny is separately triggered under the Equal Protection Clause if the 

legislation employs a suspect classification. See Johnson v. California, 543 U.S. 499, 

508, 125 S. Ct. 1141, 1148 (2005). See generally Small v. Horn, 554 Pa. 600, 615 

n.14, 722 A.2d 664, 672 n.14 (1998) (noting that suspect classifications include race, 

national origin, and, for purposes of state law, alienage). That aspect of equal 

protection jurisprudence is not presently implicated.

9

“Parens patriae, literally ‘parent of the country,’ refers . . . to the role of the state as 

sovereign and guardian of persons under a legal disability to act for themselves such as 

juveniles, the insane, or the unknown.” West Virginia v. Chas. Pfizer & Co., 440 F.2d 

1079, 1089 (2d Cir. 1971).
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886 (“The compelling state interest at issue in this case is the state’s longstanding 

interest in protecting the health and emotional welfare of children.”). That aim has been 

invoked to accomplish certain objectives where appropriate, such as involuntarily 

terminating a parent’s rights and providing a child with a permanent home. See In re 

Adoption of J.J., 511 Pa. at 608, 515 A.2d at 893; see also 23 Pa.C.S. §2511(a)(2), (9) 

(permitting involuntary termination of parental rights due to abuse, neglect, or the 

conviction of certain crimes).

10 The component of the government’s parens patriae

responsibility implicated here is its interest in ensuring that children are not deprived of 

beneficial relationships with their grandparents.

11

Although this Court’s most relevant precedent consists of Hiller and Schmehl, 

neither decision is directly on point. Hiller arose in a situation where the mother had 

died and the maternal grandmother sought to continue an existing relationship with the 

minor child. This Court upheld the common pleas court’s application of the statute, 23 

Pa.C.S. §5311 (repealed), observing that the provision was materially limited in scope 

to the deceased-parent scenario and only provided for custody in favor of a grandparent 

on the deceased parent’s side, see Hiller, 588 Pa. at 360, 904 A.2d at 886, where the 

risk appears greatest that a pre-existing grandparent relationship may be severed. 

 

10 Aside from issues relating to family relationships, the government’s interest in 

protecting children and promoting their welfare may also be served via its police power 

as reflected in enactments regulating child labor, requiring school attendance, vaccines, 

and motor-vehicle child safety seats, and imposing criminal liability for corrupting or 

otherwise harming minors. Accord Prince v. Massachusetts, 321 U.S. 158, 166, 64 S. 

Ct. 438, 442 (1944); Blixt v. Blixt, 774 N.E.2d 1052, 1059 (Ma. 2002); In re Custody of 

Smith, 969 P.2d 21, 28 (Wash. 1998). See generally 18 Pa.C.S. Ch. 63 (defining 

offenses against or involving minors); id. §4304 (defining the offense of endangering the 

welfare of children).

11 The statute also encompasses great-grandparents. For convenience we refer only to 

grandparents. See Hiller, 588 Pa. at 360 n.19, 904 A.2d at 886 n.19.
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Grandparent custody in that context and the considerations it entails are distinct from, 

albeit perhaps overlapping with, the issues that arise when both parents are living.

Schmehl is closer to the present matter in that it concerned Section 5312, whose 

reach was defined by language similar to that which appears in paragraph (2) of Section 

5325. Compare 23 Pa.C.S. §5312 (repealed) (allowing for grandparent partial custody 

or visitation during “proceedings for dissolution . . . or when parents have been 

separated for six months or more”), with 23 Pa.C.S. §5325(2) (giving grandparents

standing “where the parents of the child have been separated for a period of at least six 

months or have commenced and continued a proceeding to dissolve their marriage”). 

Still, Schmehl involved divorced parents, see generally Schmehl, 592 Pa. at 593 n.9, 

927 A.2d at 189 n.9 (citing scholarship concerning the effects of divorce on children); 

see also id. at 591, 927 A.2d at 188-89 (discussing prior judicial expressions regarding 

the impact of divorce on families), who were not in agreement concerning grandparent 

custody. See id. at 584, 927 A.2d at 184. The breakdown in unified parental decisionmaking was thus more severe in Schmehl than it is in the present matter, where Parents 

have never sought court involvement in their family issues and are able to co-parent in 

agreement concerning whether their children should maintain contact with their 

grandparents. The objecting parent in Schmehl only sought a declaration that the 

statute was invalid in the divorce setting, and the grandparents defended the statutory 

classification by emphasizing that, unlike with intact families, “[t]he state must oversee a 

divorce action, and arrange for custody, support and visitation in some cases.” Brief for 

Appellants in Schmehl v. Wegelin, 592 Pa. 581, 927 A.2d 183 (2007) (No. 87 MAP 

2005), 2005 WL 5713971, at *23. Hence, the separation scenario was not before the 

Court in Schmehl, and we cannot assume that any empirical studies relating to the 

effects of divorce carry over to mere separation.
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In spite of these differences, Hiller and Schmehl do inform our inquiry. Hiller

noted that common pleas courts are required to apply a presumption that parents act in 

their children’s best interests, and that such presumption applies regardless of whether 

the statute facially necessitates it. See Hiller, 588 Pa. at 361, 904 A.2d at 887 (“In 

addition to the language of the statute, our precedent requires our courts to . . . provide 

a presumption in favor of the decision of a fit parent.”). Thus, the Court observed that,

whenever a custody dispute arises between the parents and a third party, “the 

evidentiary scale is tipped, and tipped hard, to the parents’ side.” Hiller, 588 Pa. at 362, 

904 A.2d at 887 (quoting Ellerbe, 490 Pa. at 367, 416 A.2d at 514); see also id. at 363, 

904 A.2d at 888 (developing that this Court has repeatedly “reaffirmed the presumption 

in favor of parents set forth in Ellerbe”); accord Charles v. Stehlik, 560 Pa. 334, 340, 

744 A.2d 1255, 1258 (2000). Hiller also held that this presumption, combined with the 

“stringent requirements of Section 5311, as applied in this case,” Hiller, 588 Pa. at 365, 

904 A.2d at 890,12 adequately protected parental rights so that grandparents did not 

need to make a threshold showing of actual or potential harm to the child stemming 

from the surviving parent’s decisions. See id. at 365-66, 904 A.2d at 890.

By referring to the established presumption in favor of fit parents and Section 

5311’s requirements, Hiller rested its holding, in significant part, on considerations 

relating to the preliminary question of standing.

13 Most notably, the “stringent 

 

12 Section 5311 was similar to Section 5312, see supra note 5, although it referred to a 

situation where the parent was deceased. See id. at 344 n.1, 904 A.2d at 876 n.1.

13 Grandparent standing to seek an order directing custody or visitation is a creature of 

statute, as grandparents generally lacked substantive rights at common law in relation 

to their grandchildren. Accord Hiller, 588 Pa. at 372, 904 A.2d at 894 (Newman, J., 

concurring); Olds v. Olds, 356 N.W.2d 571, 572 (Iowa 1984) (quoting Mimkon v. Ford, 

332 A.2d 199, 200-01 (N.J. 1975)); 2 JOAN M. KRAUSKOPF ET AL., ELDERLAW: ADVOCACY 

FOR THE AGING §25:14 (2d ed. 1993 & Supp. 2015) (collecting cases).
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requirements” of Section 5311 included a prerequisite that the petitioning grandparents 

demonstrate standing to seek relief. That Hiller’s constitutional analysis centered on the 

propriety of grandparent standing in the context which arose in that dispute is made 

explicit in its explanation that, “[u]nlike the statute in Troxel, which extended standing to 

any person at any time, Section 5311 narrowly limits those who can seek visitation or 

partial custody . . . to grandparents whose child has died.” Hiller, 588 Pa. at 360, 904 

A.2d at 886; see also Schmehl, 592 Pa. at 588, 927 A.2d at 187 (characterizing Hiller as 

holding that Section 5311 was “narrowly tailored . . . because it extend[ed] standing” to 

a limited, defined subset of grandparents).

Schmehl’s understanding of the aspect of Section 5312 at issue in that matter

was similarly couched. See id. at 584-85, 927 A.2d at 184 (summarizing the mother’s 

argument that equal protection norms were offended by Section 5312 because 

“standing to obtain partial custody or visitation is not afforded to grandparents of 

children whose parents are married and living together,” while it is afforded to the 

grandparents of children whose parents are divorced or separated).

The focus on standing is sharpened even further in the present controversy: the 

common pleas court, unlike in Hiller and Schmehl, never reached the complaint’s merits 

because it determined that the statutory basis for standing was unconstitutional. In this 

respect, it is notable that the redrafted Chapter 53, more expressly than its predecessor, 

segregates grandparent standing requirements (Section 5325) from merits 

considerations (Section 5328).14 Therefore, as illustrated presently, whenever there are 

contested issues relating to standing, the chapter gives parents the ability to bifurcate 

 

14 The 1985 version of Chapter 23 also had sections nominally devoted to standing and 

merits, see 23 Pa.C.S. §§5313 (repealed), 5303 (repealed), but the merits section was 

very brief and such considerations were intermixed in Sections 5311 and 5312.
[J-53-2016] - 15

the proceedings by seeking dismissal for lack of standing, thereby requiring that any 

such preliminary questions be resolved before the complaint’s merits are reached.

The potential for such bifurcation serves an important screening function in terms 

of protecting parental rights. As suggested, it facilitates early dismissal of complaints, 

thereby relieving families of the burden of litigating their merits where a sufficient basis 

for standing is absent. Accord Rideout v. Riendeau, 761 A.2d 291, 302-03 (Me. 2000) 

(plurality) (indicating that, in a bifurcated procedure, grandparent-standing requirements 

“provide[] protection against the expense, stress, and pain of litigation, unless and until 

the grandparents have convinced the court that they are among those grandparents 

who may pursue visits”). Indeed, a majority of Justices in Troxel recognized that such 

litigation can itself impinge upon parental rights, especially if it becomes protracted 

through the appellate process. See Troxel, 530 U.S. at 75, 120 S. Ct. at 2065; id. at 

101, 120 S. Ct. at 2079 (Kennedy, J., dissenting); accord Blixt v. Blixt, 774 N.E.2d 1052, 

1065-66 (Ma. 2002).15 Therefore, and as the factors governing resolution of a custody

 

15 Hiller also took notice of the costs associated with custodial litigation, indicating that 

grandchildren are not benefitted when “grandparents force their way into [their] lives 

through the courts, contrary to the decision of a fit parent,” and adding that such 

consideration was “especially resonant given the strain that custody litigation places on 

the children as well as parents and grandparents[.]” Hiller, 588 Pa. at 359 & n.20, 904 

A.2d at 886 & n.20 (citing Troxel, 530 U.S. at 101, 120 S. Ct. at 2079 (Kennedy, J., 

dissenting) (describing that custody litigation tends to be disruptive of family life and 

that, for a parent struggling financially, the monetary costs can undermine the parent’s 

plans for the child’s future)). Other courts have made similar observations. See, e.g., 

Conlogue v. Conlogue, 890 A.2d 691, 699 (Me. 2006) (proffering that the strains of 

litigation “include various forms of pressures and stress that can pose a real threat to 

family well-being” (internal quotation marks and citations omitted)); Hawk v. Hawk, 855 

S.W.2d 573, 577 n.2 (Tenn. 1993) (noting that such stresses include those which arise 

from the public disclosure of the details of private, inter-generational disputes); cf. id. at 

576 n.1 (suggesting that court-ordered grandparent visitation in a family where there is 

animosity between the parents and grandparents can intensify the animosity and, as 

such, can be contrary to the child’s best interests).
[J-53-2016] - 16

complaint’s merits (as set forth in Section 5328) are not at issue, our analysis is directed 

to whether Section 5325’s conferral of standing to grandparents to prosecute such a 

complaint can withstand strict scrutiny.

Again, absent factors such as abuse, neglect, or abandonment, the law 

presumes parents are fit and, as such, that their parenting decisions are made in their 

children’s best interests. See Parham v. J.R., 442 U.S. 584, 602-03, 99 S. Ct. 2493, 

2504 (1979); Troxel, 530 U.S. at 68, 120 S. Ct. at 2061.

16

 In the context of grandparentinitiated litigation, then, the rewritten Chapter 53 can only subsume the essential 

screening function referenced above if the prerequisites to grandparent standing 

effectively filter out cases where there is little reason to believe the government may

constitutionally exercise its parens patriae power by ordering partial custody over the 

parents’ objections.

Consequently, the question becomes whether the state may exercise its interest 

in fostering grandparent-grandchild relationships over the objection of presumptively fit 

parents solely on the basis that they have been separated for at least six months.

The stated goal is not insignificant. In the event of a major disruption to the 

family environment, such as where there is parental abuse, neglect, substance abuse, 

mental illness, or abandonment, the interest may be especially pronounced. See 

Bennett v. Jeffreys, 356 N.E.2d 277, 281 (N.Y. 1976) (“Examples of cause of necessity 

permitting . . . intrusion on parental control would be fault or omission by the parent 

seriously affecting the welfare of a child, the preservation of the child’s freedom from 

serious physical harm, illness or death, or the child’s right to an education, and the 

like[.]”). Even in less severe circumstances, and in view of the changing nature of the 

family in the modern era, Hiller suggests other important grounds for believing the state 

 

16 The record before us lacks any suggestion tending to rebut the presumption.
[J-53-2016] - 17

has an elevated interest. See Hiller, 588 Pa. at 360, 904 A.2d at 886 (“[I]n the recent 

past, grandparents have assumed increased roles in their grandchildren’s lives and our 

cumulative experience demonstrates the many potential benefits of strong intergenerational ties.” (citing Troxel, 530 U.S. at 64, 120 S. Ct. at 2059)); see also id. at 

347, 904 A.2d at 878-79 (describing the benefits to a minor child, as found by the 

common pleas court, of continuing a relationship with his maternal grandmother to help 

him cope with his mother’s death); Michael v. Hertzler, 900 P.2d 1144, 1150-51 (Wyo. 

1995) (reviewing several ways in which grandparents influence their families (quoting 

Patricia S. Fernandez, Grandparent Access: A Model Statute, 6 YALE L. & POL’Y REV.

109, 109-10 (1988))). Nevertheless, where there is no reason to believe presumptively 

fit parents are not acting in their children’s best interests, the government’s interest in 

allowing a third party to supplant their decisions is diminished. See generally Conlogue, 

890 A.2d at 694 (expressing, as a general precept, that “something more than the best 

interest of the child must be at stake in order to establish a compelling state interest”); 

Troxel, 530 U.S. at 72-73, 120 S. Ct. at 2064 (explaining that, under the Due Process 

Clause, third-party standing to pursue custody cannot be based solely on the possibility

that a judge may ultimately disagree with a parent as to what is in the child’s best 

interests).

Additionally, and crucially for present purposes, we cannot assume that the 

rationale supporting the holdings in those cases applies equally to situations involving 

parental separation. As this case shows, when parents separate they do not always 

initiate divorce proceedings or otherwise request court involvement in their family 

affairs. See generally Brief for Appellees at 35-36 (“Parents are merely separated and 

not subject to a custody order. . . . Parents have the ability to reconcile.”). Although 

separation may involve a disruption of the nuclear family unit, the children are often 
[J-53-2016] - 18

shielded from having to participate in court proceedings and are, likewise, free from 

having to assimilate the knowledge that the government is now involved in their family 

life. Cf. Frame v. Nehls, 550 N.W.2d 739, 742 (Mich. 1996) (describing the challenged 

Michigan statute as setting forth a general rule that grandparents only have standing to 

seek visitation if a child custody dispute is already pending). Further, Grandparents and 

the Attorney General – who, as noted, has decided not to participate in this litigation, 

see supra note 3 – have not put before this Court any empirical data corresponding to 

that referenced in Schmehl tending to suggest that separation has the same adverse 

effects upon children as divorce.

As well, unlike in Hiller, separation necessarily implies that both parents are still 

alive, which in turn has several consequences. First, there is no void stemming from 

the death of a parent. Second, parental death cannot be the cause of the severance or 

non-existence of a grandparent-grandchild relationship. Finally, when both parents are 

living there is a possibility – as illustrated by this case – that the parents will be in 

agreement that their children should not maintain contact with particular third parties.

17

 

These factors render any court-mandated association with such third parties more 

intrusive to the parents’ constitutional prerogatives than in a context where the parents

have already invoked the court’s oversight as to matters of custody and/or marital 

dissolution. See generally Hawk v. Hawk, 855 S.W.2d 573, 577 (Tenn. 1993) 

(“Although courts are commonly called on to resolve custody disputes between parents 

and to determine custody when parents are unfit, the trial court’s interference with the 

 

17 We recognize that parental agreement of this nature is possible with divorced parents 

and parents who have commenced marriage dissolution proceedings. Whether the 

standing provisions of Chapter 53 as revised are constitutional in such situations should 

be developed going forward as cases involving those circumstances arise.
[J-53-2016] - 19

united decision of admittedly good parents represents a virtually unprecedented 

intrusion into a protected sphere of family life.”).

In light of the foregoing, we conclude that the fact of a parental separation for six

months or more does not render the state’s parens patriae interest sufficiently pressing 

to justify potentially disturbing the decision of presumptively fit parents concerning the 

individuals with whom their minor children should associate. It follows that the 

infringement upon parental rights worked by Section 5325 is not narrowly tailored to a 

compelling governmental interest, as the provision could have been drafted to exclude 

separation as an independent basis for grandparent standing. See Danson v. Casey, 

484 Pa. 415, 434, 399 A.2d 360, 370 (1979) (explaining that the narrow tailoring 

requirement means the statutory scheme must have been “structured with precision” 

and that the Legislature must have chosen the “le[ast] drastic means” of effectuating its 

objectives (internal quotation marks and citation omitted)); Richard H. Fallon, Jr., Strict 

Judicial Scrutiny, 54 UCLA L. REV. 1267, 1328 (2007) (observing that a legislative 

enactment can fail the narrow-tailoring component of strict scrutiny if it is 

“overinclusive”). Consequently, Section 5325 cannot survive strict scrutiny and, as 

such, it violates the fundamental rights of parents safeguarded by the Due Process 

Clause.18

Although we have concluded that Section 5325 is not narrowly tailored, it is 

evident from our discussion that this determination rests solely on the conferral of 

standing under paragraph (2), the only aspect of Section 5325 that has been brought 

into question in this action. Moreover, paragraph (2) is itself divided into two parts and

phrased in the disjunctive, as it provides for grandparent standing “where the parents of 

the child have been separated for a period of at least six months or have commenced 

 

18 In view of our disposition, we need not reach the Equal Protection claim.
[J-53-2016] - 20

and continued a proceeding to dissolve their marriage[.]” 23 Pa.C.S. §5325(2) 

(emphasis added). It is noteworthy that these are separate and independent

preconditions for grandparent standing, since it is possible for parents who have not

been separated for at least six months to commence and continue a dissolution 

proceeding. Thus, the difficulties apparent in the first half of paragraph (2) do not imply

that the second half – or, for that matter, paragraph (1) or paragraph (3) – is also

problematic.

The above informs our decision concerning the appropriate remedy, and in 

particular, the question of severance. In Ayotte v. Planned Parenthood of Northern New 

England, 546 U.S. 320, 126 S. Ct. 961 (2006), the Supreme Court explained that “when 

confronting a constitutional flaw in a statute, we try to limit the solution to the problem.” 

Id. at 328, 126 S. Ct. at 967. The Court continued that “a statute may be declared 

invalid to the extent that it reaches too far, but otherwise left intact.” Id. at 329, 126 S. 

Ct. at 968 (ellipsis, internal quotation marks, and citation omitted). In salvaging a 

statute to the extent possible without judicially rewriting it, Ayotte observed that the 

“touchstone” for the remedy is legislative intent, that is, asking whether the “legislature 

[would] have preferred what is left of its statute to no statute at all[.]” Id. at 330, 126 S. 

Ct. at 968 (citing, inter alia, United States v. Booker, 543 U.S. 220, 227, 125 S. Ct. 738, 

746 (2005)).

This comports with our own practice. Although there is no express severability 

provision contained in Act 112 of 2010 or any aspect of the Domestic Relations Code 

applicable to Chapter 53, the Statutory Construction Act directs, as general policy, that 

all statutory provisions are presumed to be severable, and that if any provision is held to 

be invalid the remainder of the statute which contains it

shall not be affected thereby, unless the court finds that the valid 

provisions of the statute are so essentially and inseparably connected 
[J-53-2016] - 21

with, and so depend upon, the void provision or application, that it cannot 

be presumed the General Assembly would have enacted the remaining 

valid provisions without the void one; or unless the court finds that the 

remaining valid provisions, standing alone, are incomplete and are 

incapable of being executed in accordance with the legislative intent.

1 Pa.C.S. §1925. Thus, severance is appropriate where the remaining provisions are 

capable of execution in accordance with legislative intent. See, e.g., Commonwealth v. 

Mockaitis, 575 Pa. 5, 29-30, 834 A.2d 488, 502-03 (2003).

As noted, paragraphs (1) and (3) of Section 5325, as well as the second half of 

paragraph (2), set out separate and distinct bases for grandparent standing that do not 

depend on the first half of paragraph (2), that is, on the parents having been separated 

for at least six months. Since these are not “essentially and inseparably connected 

with” the separation provision, they are capable of execution and may continue in force 

absent the first half of paragraph (2). Such provisions, moreover, are neither implicated 

by the underlying facts nor challenged by the parties.

As concerns the second half of paragraph (2) in particular, invalidating it per the 

suggestion forwarded by Justices Baer and Wecht would require reaching beyond the 

bounds of this dispute and declaring Section 5325 unconstitutional more broadly than is 

necessary to resolve the appeal. It would be premature – and thus improper – to make 

a wide-reaching constitutional declaration along these lines in the present context in 

which no challenge to the standing requirements relative to divorced parents has been 

raised or briefed. We thus differ with any suggestion that we are somehow “avoiding” 

this issue. Concurring and Dissenting Opinion, slip op. at 4 n.2 (Baer, J.).

More generally, it should be recalled that our “adjudicatory process is structured 

to cast a narrow focus on matters framed by litigants before the Court in a highly 

directed fashion,” Sernovitz v. Dershaw, ___ Pa. ___, ___ n.13, 127 A.3d 783, 794 n.13 

(2015) (internal quotation marks and citation omitted), and, as such, we sit “to decide 
[J-53-2016] - 22

concrete cases.” Id. (quoting Upjohn Co. v. United States, 449 U.S. 383, 386, 101 S.

Ct. 677, 681 (1981)). As a result, and as already suggested, see supra note 17, any 

such judgment should be left for a future controversy in which the issue is squarely 

presented, the Court has the benefit of focused adversarial briefing, and the Attorney

General is apprised that the constitutional validity of the second half of Section 5325(2) 

has been called into question and is given an opportunity to defend it. See City of Phila. 

v. Commonwealth, 575 Pa. 542, 570, 838 A.2d 566, 583 (2003) (explaining that the 

Attorney General is charged with defending the constitutionality of all statutes passed by 

the General Assembly (citing 71 P.S. §732-204(a)(3))). Finally, although Justice Wecht 

may disagree with the holding reached in Schmehl, it remains binding precedent and

the parties’ briefs lack any request that it be overruled.

Accordingly, we now sever the first half of paragraph (2) from the remainder of 

paragraph (2) and the remainder of Section 5325 generally.

19

The order of the Court of Common Pleas dismissing Grandparents’ complaint is 

affirmed.

Justices Todd, Donohue and Dougherty join the opinion.

Justice Baer files a concurring and dissenting opinion.

Justice Wecht files a concurring and dissenting opinion.

 

19 To be precise, the text, “have been separated for a period of at least six months or” is 

inoperative and paragraph (2), 23 Pa.C.S. §5325(2), as a consequence of severance, 

now only provides for standing “where the parents of the child have commenced and 

continued a proceeding to dissolve their marriage[.]”