J-A02018-19

2019 PA Super 91

J. & S. O.

v.

C.H. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1361 MDA 2018

Appeal from the Order Entered July 17, 2018

In the Court of Common Pleas of York County Civil Division at No(s): 

2014-FC-001854-03

BEFORE: LAZARUS, J., DUBOW, J., and NICHOLS, J.

OPINION BY DUBOW, J.: FILED: MARCH 27, 2019

Appellant, C.H. (“Father”), appeals from the July 17, 2018 Order entered 

in the York County Court of Common Pleas, which granted Appellees’ 

(“Maternal Grandparents”) Petition for Modification of Custody and awarded 

Maternal Grandparents partial physical custody of H.H. (“Child”) every other 

Saturday and additional time on holidays and during the summer months. 

Based on the reasoning of Hiller v. Fausey, 904 A.2d 875 (Pa. 2006), we 

conclude that 23 Pa.C.S. § 5325, granting standing to grandparents to seek 

partial custody of their deceased child’s children (grandchildren), survives 

strict scrutiny and is constitutional as applied in this case. We, thus, affirm.

The relevant factual and procedural history is as follows. Father and 

Child’s biological mother (“Mother”) were married and Child was born in 2009. 

Child saw Maternal Grandparents on a weekly basis and often spent the night 

at their home. Mother passed away in March 2013. 
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On October 14, 2014, Maternal Grandparents filed a Complaint for 

Custody, which ultimately resolved with the filing of a Stipulated Order on 

October 18, 2016. The Stipulated Order awarded Maternal Grandparents 

partial physical custody of Child three days per month during the school year 

and seven days per month during the summer months, which could be 

modified to overnight visitation at the recommendation of Child’s therapist.1

On October 26, 2017, Maternal Grandparents filed a Petition for 

Modification of Custody and Contempt of Existing Orders alleging that Father 

was not complying with the Stipulated Order. After a custody trial, the trial 

court granted Maternal Grandparents’ Petition for Modification of Custody and 

denied Maternal Grandparents’ Petition for Contempt. As stated above, the 

trial court awarded Maternal Grandparents partial physical custody of Child 

every other Saturday during the school year, on Christmas Eve, and on four 

additional days in the summer. 

Father timely appealed. Father and the trial court both complied with 

Pa.R.A.P. 1925.

Father raises the following issues on appeal:

____________________________________________

1

In a Pre-Trial Memorandum filed prior to a scheduled custody hearing that 

never occurred due to parties’ agreement, Father raised the issue of whether 

two custody statutes, 23 Pa.C.S. § 5325 and 23 Pa.C.S. § 5337, were 

unconstitutional. On November 9, 2016, Father filed a Notice of Appeal raising 

the same constitutional issues. On October 6, 2017, this Court sua sponte

determined that the October 18, 2016 Stipulated Order was interlocutory and, 

therefore, quashed the appeal. See J.T.O. v. C.H., 179 A.3d 540 (Pa. Super. 

2017) (unpublished memorandum). 
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1. Whether the statute granting automatic standing to 

grandparents at [23 Pa.C.S. § 5325(1)] violates a parent’s 14th

Amendment rights to due process, as well as of the 

Pennsylvania Constitution, as the statute does not pass a strict 

scrutiny analysis where the grandparents have been offered 

ongoing contact with the grandchild after a parent’s death?

2. Whether [23 Pa.C.S. § 5325(1)] creates unconstitutionally 

disparate treatment for the class in violation of a widowed 

parent’s 14th Amendment rights under the Equal Protection 

Clause, as well as Article 1, §§ 1 and 26 of the Pennsylvania 

Constitution, who are subjected to court review of their 

parenting decisions regarding the amount and length of contact 

between their child(ren) with grandparents versus those 

parents in two parent families?

3. Whether by subsequent legislative enactment and application 

of the anti-relocation provisions contained within [23 Pa.C.S. § 

5337] causes [23 Pa.C.S. § 5325] to violate the fundamental 

rights of parents to make decision concerning their child’s care, 

custody and control as guaranteed to them under the 

Substantive Due Process Clause of the 5th Amendment as 

applied by the 14th Amendment of the United States 

Constitution?

4. Whether due to the enactment of [23 Pa.C.S. § 5337], [23 

Pa.C.S. § 5325] violates the Equal Protection Clause of the 14th

Amendment of the United States Constitution, and Article 1, §§ 

1 and 26 of the Pennsylvania Constitution by its disparate 

treatment of parents based upon arbitrary parental 

classification?

Father’s Brief at 5-6.

The constitutionality of a statute presents a question of law and this 

Court’s review is plenary. Schmehl v. Wegelin, 927 A.2d 183, 186 (Pa. 

2007). “A statute duly enacted by the General Assembly is presumed valid 

and will not be declared unconstitutional unless it clearly, palpably and plainly 

violates the Constitution.” Id. (citation and internal quotation marks 
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omitted). Accordingly, any party seeking to overcome that presumption of 

validity “bears a heavy burden of persuasion.” Id. 

 In his first two issues, Father avers that 23 Pa.C.S. § 5325(1), the 

underlying statute providing Maternal Grandparents standing in the instant 

custody matter, is unconstitutional. Father’s Brief at 5. Father argues that 

the statutory provision, which states, “where the parent of the child is 

deceased, a parent or grandparent of the deceased parent may file an action 

[for partial physical or supervised physical custody,]” violates both his due 

process and equal protection rights.2 See 23 Pa.C.S. § 5325(1); Father’s Brief 

at 5. 

Due Process Rights

Father first contends that Section 5325(1) as applied violates his due 

process rights to raise his child without government interference. Father’s 

Brief at 13. He asserts that the statute fails to pass strict scrutiny because it 

is not narrowly tailored to serve a compelling state interest. Id. at 15. He 

contends that Section 5325(1) violates the Due Process Clause because it 

automatically grants standing to any grandparent when their child is deceased 

regardless of whether the surviving parent has allowed continued, consistent, 

and ongoing contact between a child and the grandparents. Id. at 5, 15-17. 

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2 We note that the legislature repealed the prior statute, 23 Pa.C.S. § 5311, 

in 2010 and replaced it with 23 Pa.C.S. § 5325, which the legislature amended 

to its current version in 2018.
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It is well settled that grandparent visitation and custody statutes 

generally authorize state action and, therefore, are subject to constitutional 

limitations. D.P. v. G.J.P., 146 A.3d 204, 210 (Pa. 2016). The Fourteenth 

Amendment provides that no State shall “deprive any person of life, liberty, 

or property, without due process of law” or deny any person within their 

jurisdiction “the equal protection of the laws.” U.S. Const. amend. XIV, § 1. 

The Pennsylvania Constitution provides equivalent protections.3

Our Supreme Court has held that Section 5325 infringes upon the right 

of parents to make decisions regarding the care, custody, and control of their 

children, a fundamental right that is protected by the Fourteenth 

Amendment’s “due-process and equal-protection guarantees.” D.P., supra

at 210. Because Section 5325 infringes upon a fundamental right, “to survive 

a due process or equal protection challenge, Section 5325 must satisfy the 

constitutional standard known as strict scrutiny.” Id.; see also Hiller, supra

at 885 (holding that we must apply a strict scrutiny analysis when the state 

infringes upon the fundamental rights of parents to direct the care, custody, 

and control of their children). 

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3 The Pennsylvania Constitution, Article 1, Section 1 provides: “All men are 

born equally free and independent, and have certain inherent and indefeasible 

rights, among which are those of enjoying and defending life and liberty, of 

acquiring, possessing and protecting property and reputation, and of pursuing 

their own happiness.” Pa. Const. art. I, § 1. Article 1, Section 26 provides: 

“Neither the Commonwealth nor any political subdivision thereof shall deny to 

any person the enjoyment of any civil right, nor discriminate against any 

person in the exercise of any civil right.” Pa. Const. art. I, § 26.
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In general, a strict scrutiny analysis examines whether the 

governmental action is narrowly tailored to a compelling state interest. D.P.,

supra at 210. “[T]he 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.” Id. (citation omitted). 

The compelling state interest at issue in grandparent custody and 

visitation statutes is the state’s longstanding interest in protecting the health 

and emotional welfare of children and promoting their well-being. See Hiller,

supra at 886; D.P., supra at 211. Our Supreme Court, like the United States 

Supreme Court, has frequently approved of the state’s exercise of its parens 

patriae interest and allowed infringements on parental rights where the 

welfare of children is at stake.4 Hiller, supra at 886. Specifically, this has 

occurred in cases where our Supreme Court has permitted termination of 

parental rights, declarations of dependency, and grants of custody to nonbiological parents over the objection of biological parents. Id.

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4 “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.” D.P. v. G.J.P., 

146 A.3d 204, 211 n.9 (Pa. 2016) (citation omitted).
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Applying these principles to this case, we start with the proposition that 

the protection of the welfare of children, including ensuring that children of 

deceased parents are not deprived of beneficial relationships with their 

grandparents, is a compelling state interest. See D.P., supra at 211. We 

must next determine whether Section 5325(1) is narrowly tailored to serve 

that interest. See Hiller, supra at 886. We find that it is.

We are guided by Hiller, supra, where our Supreme Court addressed 

the constitutionality of Section 5311, the prior statute granting standing to 

grandparents whose child has died.5 In Hiller, the maternal grandmother and 

the child saw each other daily and had a close relationship prior to the 

mother’s death. Id. at 877. After mother’s death, the father suspended 

frequent contact and the child only saw maternal grandmother a few times 

throughout the year following mother’s death. Id. The grandmother filed for 

partial custody and, after a hearing, the trial court awarded grandmother 

physical custody of the child one weekend per month and one week in the 

____________________________________________

5 23 Pa.C.S. § 5311 (repealed) stated:

If a parent of an unmarried child is deceased, the parents or 

grandparents of the deceased parent may be granted reasonable 

partial custody or visitation rights, or both, to the unmarried child 

by the court upon a finding that partial custody or visitation rights, 

or both, would be in the best interest of the child and would not 

interfere with the parent-child relationship. The court shall 

consider the amount of personal contact between the parents or 

grandparents of the deceased parent and the child prior to the 

application.
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summer. Id. Father appealed, challenging the constitutionality of the trial 

court’s application of the statute. This Court affirmed.

On review, our Supreme Court also affirmed, holding that the application 

of the portion of the statute, which allowed visitation or partial custody to 

grandparents upon death of a child’s parent, did not violate the father’s due 

process right to direct the care, custody, and control of his child. Id. at 890. 

Most relevant to our analysis, the Court held that the prior statute, which is 

nearly identical to the current Section 5325(1), survived a strict scrutiny 

analysis, observing that it “narrowly limits those who can seek visitation or 

partial custody not merely to grandparents, but specifically to 

grandparents whose child has died.” Id. at 886 (emphasis added). 

The Court observed that there is a policy interest in permitting continued 

contact with grandparents, particularly because “grandparents have assumed 

increased roles in their grandchildren’s lives and our cumulative experience 

demonstrates the many potential benefits of strong inter-generational ties.” 

Id. While the Court recognized that a grandparent’s desire for partial physical 

custody would not prevail over a fit parent’s decision to limit contact in all 

cases, it refused “to close our minds to the possibility that in some instances 

a court may overturn even the decision of a fit parent to exclude a grandparent 

from a grandchild’s life, especially where the grandparent’s child is 

deceased and the grandparent relationship is longstanding and 

significant to the grandchild.” Id. at 887 (emphasis added). 
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Finally, the Court recognized that the statute balanced the state’s 

interest and parent’s rights when it required courts to ensure that the 

visitation or partial custody would not interfere with the parent-child 

relationship and was in child’s best interest. Id. The Court acknowledged 

that the statute required courts to consider the amount of contact between a 

grandparent and a grandchild before the petition was filed. Id.

The current provision, Section 5325(1), is virtually identical to the 

statute that was at issue in Hiller. Both are narrowly tailored to provide 

grandparents and great-grandparents standing to file for partial physical 

custody where the parent of the child is deceased. See 23 Pa.C.S. § 5325(1); 

23 Pa.C.S. § 5311 (repealed). See also Hiller, supra at 886. As with the 

prior statute, Section 5325(1) advances the longstanding compelling state 

interest of protecting the health and emotional welfare of children by creating 

an opportunity for the child to have a relationship with the family of the child’s 

deceased parent. See Hiller, supra at 886. Also, it is narrowly tailored to 

limit those who can seek visitation or partial custody specifically to 

grandparents whose child has died. See id. Section 5325(1), like Section 

5311, thus, passes strict scrutiny. Accordingly, pursuant to the reasoning and 

analysis in Hiller, we conclude that Section 5325(1) does not violate Father’s 

due process rights to direct the care, custody, and control of Child. 

Father argues, without citing the record, that Hiller does not apply in 

this case because Hiller addressed a “distinctly different factual scenario 

[from] the case at hand, one where after one parent’s death, the other parent 
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refused a grandparent contact with the child[.]” Father’s Brief at 15. Father 

argues that Section 5325(1) is not structured with precision because it 

requires no advance showing by grandparents that they are actually being 

denied visitation with their grandchild. Father’s Brief at 16-17. We reject 

Father’s attempt to distinguish the applicability of Hiller. 

As in Hiller, we recognize that Section 5325(1) is narrowly tailored 

because it applies specifically to grandparents whose child has died. Appellant 

has provided no support for his claim that standing to seek partial physical 

custody required any factual basis beyond that provided quite precisely in the 

statute. See 1 Pa.C.S. § 1921(b) (stating “[w]hen the words of a statute are 

clear and free from all ambiguity, the letter of it is not to be disregarded under 

the pretext of pursuing its spirit.”). Father’s contention ignores the fact that 

all custody considerations are based on the best interests of the child and a 

statute granting standing does not change that. We, thus, reject Appellant’s 

attempt to distinguish Hiller. 

Further, Father’s reliance on Troxel v. Granville, 530 U.S. 57 (2000) 

and D.P., supra – both cases where grandparent custody statutes were found 

to be unconstitutional – to support his argument that Section 5325(1) is 

unconstitutional is unpersuasive. Both cases are easily distinguished from this 

case. 

In Troxel, the fact pattern is similar to the instant case where a 

grandparent sought visitation with a grandchild after the death of a parent. 

The United States Supreme Court found the underlying statute to be 
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unconstitutional because the Washington statute provided that any person 

may petition the court for visitation at any time. Troxel, supra at 67. In 

contrast, Section 5325(1) limits petitioners to grandparents who have a 

deceased child. 

D.P. is, likewise, easily distinguished from this case. In D.P., supra, 

our Supreme Court found now-repealed Section 5325(2), which granted 

standing to a grandparent to seek custody of a grandchild if the child’s parents 

were separated for at least six months, to be unconstitutional. First and 

foremost, D.P. addresses an entirely different section of the statute. Further, 

the Court in D.P. specifically distinguished the statute at issue in D.P., which 

granted standing to grandparents of separated parents, from a statute 

granting standing to grandparents who have a deceased child, stating that 

when parents are separated “there is no void stemming from the death of a 

parent.” D.P. at 215. 

Accordingly, as stated above, we conclude that Section 5325(1) does 

not violate Father’s due process rights to direct the care, custody, and control 

of Child. Pennsylvania has a longstanding interest in protecting children and 

promoting their well-being, and the statute is narrowly tailored to grant 

standing to seek custody only to grandparents whose child has died, rather 

than all grandparents. 

Equal Protection Rights

Father next avers that Section 5325(1) violates his equal protection 

rights by subjecting a class of individuals, namely widowers, to court review 
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of their parenting decisions regarding grandparent visitation when nonwidowed parents are not subject to such review. Father’s Brief at 17. Father 

once again argues that the statute does not survive a strict scrutiny analysis 

because it is not narrowly tailored to ensure a compelling state interest. Id. 

at 17-18. 

As discussed above, when examining whether Section 5325(1) violates 

Father’s equal protection rights we must employ a strict scrutiny analysis to 

determine if the classification inherent in the statute is necessary to achieve 

the compelling state interest of protecting children and ensuring their wellbeing. See D.P., supra at 210. Since we held, supra, that Section 5325(1) 

does not violate Father’s due process rights because the statute is narrowly 

tailored to grant standing only to grandparents whose child has died, it is 

axiomatic that the classification inherent in the statute – parents who are 

widowers – is necessary to achieve the same interest. It is impossible to grant 

standing to grandparents whose child has died without singling out widowed 

parents. 

Accordingly, we find that Section 5325(1) does not violate Father’s equal 

protection rights because the classification inherent in the statute is necessary 

to achieve the compelling state interest of protecting children and ensuring 

their well-being. 

Section 5337 – Relocation

In Father’s final two issues, he avers that 23 Pa.C.S. § 5337, a statute 

that prohibits a parent from relocating unless every individual who has custody 
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rights to the child consents or the court approves the proposed relocation, is 

unconstitutional as it relates to Section 5325(1), the statute granting 

automatic standing to grandparents who have deceased children. Father’s 

Brief at 5-6. Father argues that because of the concomitant rights granted 

under Section 5337, allowing grandparents to acquire custodial rights over the 

objection of a fit parent pursuant to Section 5325(1) enables grandparents to 

“frustrate the parents’ decision on the fundamental right to decide where to 

live and raise their child[.]” Father’s Brief at 21. Father’s challenge is 

premature.

Father did not file a pleading requesting relocation and Father did not 

offer any testimony that he planned to relocate. Maternal Grandparents argue 

that Father is essentially seeking an “advisory opinion” on the constitutionality 

of Section 5337 without a relocation request before the court. Maternal 

Grandparents’ Brief at 20. We agree and decline to address these issues. See

Gulnac by Gulnac v. South Butler County School Dist., 587 A.2d 699, 

701 (Pa. 1991) (stating a declaratory judgment must not be employed “to 

determine rights in anticipation of events which may never occur” or “as a 

medium for the rendition of an advisory opinion which may prove to be purely 

academic.”)

For the reasons discussed above, we find that Section 5325(1) does not 

clearly, palpably, and plainly violate the Constitution. Accordingly, we affirm.

Order affirmed. 

Judge Lazarus joins the opinion. 
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Judge Nichols concurs in result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 03/27/2019