Petition for Writ of Certiorari — Wegelin v. Schmehl (No. 07-322)
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No. 07-32 2 SEP 04 2007
piers OFFICE OF THE CLERK
Sn The
Supreme Court of the Anited States
ANN WEGELIN,
Petitioner,
JEAN SCHMEHL and DAVID SCHMEHL,
Respondents.
On Petition For Writ Of Certiorari
To The Supreme Court Of Pennsylvania
PETITION FOR WRIT OF CERTIORARI
GREGORY D. HENRY, ESQUIRE
Counsel of Record
KAUFFMAN, HENRY, MARK & DEBON, LLC
635 Walnut Street
Reading, PA 19601
(610) 376-7411
Attorney for Petitioner
ae
———
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831
QUESTION PRESENTED
Whether 23 Pa.C.S.A. Section 5312 violates the Equal
Protection Clause of the Fourteenth Amendment of the
United States Constitution?
ii
LIST OF ALL PARTIES TO THE PROCEEDINGS
WHOSE JUDGMENT IS SOUGHT TO BE REVIEWED
The Respondents in this Writ of Certiorari to the
Supreme Court of Pennsylvania are Jean Schmeh! and
David Schmehl. Perry Schmehl (father) did not participate
in this matter before the Supreme Court of Pennsylvania.
LIST OF PARENT COMPANIES
AND SUBSIDIARIES
None.
iii
TABLE OF CONTENTS
Page
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List Of All Parties To The Proceedings Whose Judg-
ment Is Sought To Be Reviewed .................:0eeseeeeeeeeee ii
List Of Parent Companies And Subsidiaries................. ii
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Reasons For Granting The Writ ...............:ccsseeeseseeeesenees 4
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iv
TABLE OF AUTHORITIES
Page
CASES CITED:
City of Richmond v. Croson, 488 U.S. 469, 109 S.Ct.
FOO, RD Es OOS (AGB) cevescccsicsccosnsstevssensvecssvecrenvsenes 9
Clark v. Jeter, 486 U.S. 456, 108 S.Ct. 1910, 100
i I II a cniterisdilacien cin sntesnsnbaihianiidlotntie anenassenceneees 1
Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31
Ri I UTI issidcleticsnstaniediuisdsoabitbaceinelcdsieaatennbnbdsteavesies 6
Johnson v. California, 543 U.S. 499, 125 S.Ct. 1141,
Fe ID bicescicecanicndcnsdtdabutdctinsibinncrunrestonsnssesres 9
Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18
a I NE cists kcettovntvadsnsiabeniecemendeniicicrenbetcenomianvie 1
Memorial Hospital v. Maricopa County, 415 U.S.
250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974)..................000 5
Meyers v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67
ee EE TET dindnbtiesceciidineensiisnlpiisiasanbachienatapannouiceoiee 4
Reno v. Flores, 507 U.S. 292, 113 S.Ct. 1439, 123
RR Oe SI isk ciciidbintiasnssdasuscssdncstenndeaabiieeiboumenedaienbees 4
Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322,
Be ie CIID iikstiiss tubciecbachintindbidsiastodendgdiatebcennnienins 6
Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054,
SF Fe icin ctdentckinicnicdninianitviuineiivconndiins 347
Washington v. Glucksberg, 521 U.S. 702, 117 S.Ct.
pL yy £65: | Fn CD 4
Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54
A NR EET TI socio ctcirtariacieleuhsssiathdinenidiedhcledibiinnatdeminiensinbabae 9
TABLE OF AUTHORITIES
Page
STATUTES CITED:
BE Fes BOCRIO BOG isc csseccenisiesccevccsssescsazeceserevees passim
Se rs ND BT iveiiicocictnsricasatarsniatesernintsinveanqenncnnan 1
1
OPINIONS BELOW
The Judgment and Opinion of the Supreme Court of
Pennsylvania appears in Appendix A hereto. Said opinion
reversed and remanded for further proceedings the Order
and Opinion of the Court of Common Pleas, Berks County,
Pennsylvania, dismissing Respondents’ Complaint for
Child Custody pursuant to the Pennsylvania Grandpar-
ents Visitation and Custody Act, The Opinion of the Court
of Common Pleas appears in Appendix B hereto.
oe
vv
STATEMENT OF JURISDICTION
The Petition for Writ of Certiorari arises from a
custody action filed by Respondents Jean and David
Schmehl. The Order of the Court of Common Pleas of
Berks County, Pennsylvania was filed on July 14, 2005.
On August 3, 2005, Respondents filed their Notice of
Appeal to the Pennsylvania Supreme Court entered on
August 30, 2005. The Pennsylvania Supreme Court
entered an Order noting possible jurisdiction. On June 12,
2007, the Pennsylvania Supreme Court entered its Opin-
ion.
The jurisdiction of this Court is invoked pursuant to
the provisions of Title 28, United States Code Section
1257.
Cases that sustain the jurisdiction of this Court
include Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054,
147 L.Ed.2d 49 (2000); Clark v. Jeter, 486 U.S. 456, 108
S.Ct. 1910, 100 L.Ed.2d 465 (1988); and Loving v. Virginia,
388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967).
¢
STATUTE INVOLVED
23 Pa.C.S.A. Section 5312
7
¥
STATEMENT OF THE CASE
The facts of the case underlying this Petition for Writ
of Certiorari are as follows:
Ann Wegelin (“Petitioner”) and Perry Schmehl (“Fa-
ther”) have two (2) minor children. Petitioner and Father
were married on January 4, 1992 in Berks County, Penn-
sylvania. The parties were divorced by Decree in Berks
County, Pennsylvania on April 11, 2003, The parties are
operating pursuant to a Custody Order dated November
11, 2002 at No. 02-2891 in the Court of Common Pleas,
Berks County, Pennsylvania.
Petitioner has primary physical custody of the minor
children and Father has certain rights to partial custody.
Paternal grandparents Jean and David Schmehl (“Re-
spondents”) are divorced and have been seeing their
grandchildren during Father’s periods of partial] custody.
On April 29, 2005, Respondents filed a complaint
for custody/visitation against Petitioner pursuant to the
Grandparents’ Visitation Act at 23 Pa.C.S.A. Section 5312.
On May 5, 2005, Petitioner filed preliminary objec-
tions to Respondents’ claims for failure to include a
necessary party, namely, Father. On May 11, 2005,
Petitioner filed a praecipe for argument court, brief in
support of her argument that 23 Pa.C.S.A. Section 5312
was unconstitutional and Notice- to the Pennsylvania
Attorney General pursuant to Pa.R.C.P. Rule 235.
On June 27, 2005, Respondents filed their Brief in
Support of the Ce ‘tutionality of 23 Pa.C.S.A. Section
5312.
Oral argument was heard before the Honorable Scott
D. Keller on July 11, 2005. On July 14, 2005, Judge Keller
dismissed Respondents’ complaint and held that 23
Pa.C.S.A. Section 5312 violates the Equal Protection
Clause of the Fourteenth Amendment of the United States
Constitution.
On July 29, 2005, Judge Keller filed the Opinion
finding 23 Pa.C.S.A. Section 5312 violates the Fourteenth
Amendment.
On August 3, 2005, Respondents filed their Notice of
Appeal. On August 30, 2005, the Supreme Court entered
an Order noting probable jurisdiction. On June 12, 2007,
the Supreme Court of Pennsylvania in a 4-3 decision
reversed the trial court and remanded the case for further
proceedings.
All federal questions to be reviewed were raised by
briefs, appropriate motions and argument in the Court of
Common Pleas of Berks County and the Supreme Court of
Pennsylvania.
4
REASONS FOR GRANTING THE WRIT
I. PARENTS HAVE A FUNDAMENTAL RIGHT TO
THE CARE AND CONTROL OF THEIR CHIL-
DREN AND WITH WHOM THEY ASSOCIATE
The Fourteenth Amendment of the United States
Constitution states “nor shall any State deprive any
person of life, liberty, or property, without due process of
law...” U.S. Const. Amend. XIV.
In Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147
L.Ed.2d 49 (2000), Justice O’Connor writes:
The Fourteenth Amendment provides that no
State shall “deprive any person of life, liberty, or
property without due process of law,” “We have
long recognized that the Amendment’s Due Proc-
ess Clause like its Fifth Amendment counter-
part,” “guarantees more than fair process.”
Washington v. Glucksberg, 521 U.S. 702, 719, 138
L.Ed.2d 772, 117 S. Ct. 2258 (1997). The clause
also includes a substantive component that “pro-
vided heightened protection against government
interference with certain fundamental rights and
liberty interests.” Id. at 720, 138 L.Ed.2d 117
S. Ct. 2258; see also Reno v. Flores, 507 U.S. 292,
301-302, 123 L.Ed.2d 1, 113 S.Ct. 1439 (1993),
The liberty interest at issue in this case — the in-
terest of parents in the care, custody and control
of their children — is perhaps the oldest of the
fundamental liberty interests recognized by this
Court. More than 75 years ago, in Meyers v. Ne-
braska, 262 U.S. 390, 399, 401, 67 L.Ed.2d 1042,
43 S.Ct. 625 (1923) we held that the “liberty pro-
tected by the Due Process Clause includes the
right of parents to establish a home and bring up
children” and “to control the education of their
own.” Id. at 56.
From the aforementioned, it is clear in the Due
Process Clause that a parents’ constitutional right to
custody and control of their children and to choose
whether to expose their children to certain individuals or
ideas is superior to that of any other person.
Where there is an intact family, grandparents cannot
petition the courts for visitation and/or custody because of
the fundamentally protected right. If intact parents decide
they do not want their parents involved with their chil-
dren, the State has no interest in stating the children are
better off with the grandparents being involved. Addition-
ally, grandparents, siblings, aunts and uncles and any
other third party do not have a fundamental right to have
a relationship with children.
Il, NO COMPELLING STATE INTEREST EXISTS
TO TREAT FIT SEPARATED PARENTS DIF-
FERENTLY FROM FIT PARENTS RESIDING
TOGETHER REGARDING FUNDAMENTALLY
PROTECTED RIGHTS
The Fourteenth Amendment of the United States
Constitution guarantees “No State shall make or enforce
any law which shall deny to any person within its jurisdic-
tion the equal protection of the laws.”
Pursuant to the Equal Protection Clause, one must
“first determine what burden of jurisdiction the classifica-
tion created thereby must meet, by looking to the nature of
the classification and the individual] interests affected.”
Memorial Hospital v. Maricopa County, 415 U.S. 250, 253,
94 S.Ct. 1076, 39 L.Ed.2d 306 (1974).
When a fundamental right is at issue, the “strict
scrutiny” formula for reviewing the constitutionality of the
6
State’s burden upon that right must be addressed. Dunn v.
Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274
(1972).
When a compelling State interest is at stake, the
classification must be narrowly tailored to serve the State
interest. Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct.
1322, 22 L.Ed.2d 600 (1969).
There can be no doubt that the State has a compelling
interest in protecting the well-being of children regardless
if the parents are living together or not. The fundamental
right of parents to the care and control of their children is
not limitless.
The State has the right to intervene on behalf of the
children in anything that will jeopardize their health or
safety.
States have enacted the following laws to protect
children:
Child Labor Laws;
Court Ordered Transfusion;
y P
Compulsory Vaccinations;
a P
Compulsory Education;
e. Seatbelt Laws;
f. Alcohol to Minors;
g. Corruption of Minors;
h. Abortion Laws;
i. Mental Issues;
j. Harm Arising from Activities on the Street;
k. Abuse or Neglect;
l. Stabilization of Home Environments;
m. Juvenile Acts; and
n. Sexual Materials and Sexual Contents.
The State’s legitimate and compelling interest in
protecting children also has its limits. When a fit parent
makes a decision concerning their child’s life and said
decision does not jeopardize the health or safety of said
child, the State cannot interfere with that constitutionally
protected right.
“The Due Process Clause does not permit a State to
infringe on the fundamental right of parents to make child
rearing decisions simply because a state judge believes a
better decision could be made.” Troxel, 120 S.Ct. 2054
23 Pa.C.S.A. Section 5312, when parents’ marriage is
dissolved or parents are separated states as follows:
In all proceedings for dissolution, subsequent to
the commencement of the proceedings and con-
tinuing thereafter or when parents have been
separated for six (6) months or more, the court
may, upon application of the parent or grandpar-
ent 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 par-
ent-child relationship. The court shall consider
the amount of personal contact between the par-
ents or grandparents of the party and the child
prior to the application.
23 Pa.C.S.A. Section 5312 discriminates in the right to
engage in a constitutional activity by parents who are
unmarried and not residing together, separated, and/or
divorced. This classification significantly burdens the right
to exercise a constitutionally protected activity.
By classifying parents who are married and reside
with their spouse and/or are unmarried and live together
differently than unmarried and not residing together,
separated and/or divorced parents, the latter lose their
fundamental right to the care, custody, control and with
whom their children can associate.
In a “suspect classification analysis” the burden is
upon the State to prove the classification must be neces-
sary to a compelling government interest.
If the State has a compelling interest in protecting
children from harm, the Commonwealth of Pennsylvania
must believe that a child deprived from seeing his/her
grandparent is a substantial harm to the child over the
objection of a fit parent. Nowhere in the constitution does
it state that grandparents are a necessity to a child. If this
were true, parents residing together would also be tar-
geted in grandparent visitation statutes. Clearly, depriv-
ing a child from his/her grandparents is not the same as
depriving a child of shelter, food, care and meeting their
basic needs. Therefore, without a showing of a substantial
harm to a child as a result of the denial of grandparent
visitation, the State intrusion is unwarranted.
23 Pa.C.S.A. Section 5312 attacks the parenting
capabilities of any parent who does not live in a home
which includes both mother and father, and their children.
The statute grants grandparents automatic standing to
pursue custody rights and permits the trial court to
determine the best interest of the child over the objections
of a fit parent.
9
If any parents who were separated, divorced, or for
any reason were not living together and then decided to
cohabitate, the grandparents would not have standing to
proceed under Section 5312. Therefore, the only ingredient
necessary to invoke Section 5312 is that the parents do not
reside together.
The second prong of the “strict scrutiny test” is that
the classification must be narrowly tailored to serve the
compelling statute interest. Zablocki v. Redhail, 434 U.S.
374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978).
If the State is trying to prevent a substantial harm to
children due to the denial of the visitation with their
grandparents, the State must identify those children who
will suffer a greater harm from the denial of grandparent
visitation. There may be a list of qualities that could be
created in a narrowly tailored way to identify the afore-
mentioned children at risk; however, Section 5312 merely
addresses those parents who do not reside together. When
parents do not reside together this does not address the
issue of at risk children with any degree of accuracy to
comport with a classification that must be narrowly
tailored to serve the State’s compelling interest.
The classifications set forth in Section 5312 are
substantially overinclusive and underinclusive to the
State’s objectives. City of Richmond v. Croson, 488 U.S.
469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989); Johnson v.
California, 543 U.S. 499, 125 S.Ct. 1141, 160 L.Ed.2d 949
(2005); and Zablocki, supra.
The classifications are overinclusive because countless
children covered by this statute are not at risk due to the
denial of seeing their grandparents versus those children
who are at risk because of said denial.
10
The classifications are also underinclusive because
there are numerous family issues and factors not deline-
ated in the statute which may cause an increased substan-
tial risk to children due to the ability to have an ongoing
relationship and visitation with their grandparents.
The justifications set forth by the Pennsylvania
Supreme Court in holding 23 Pa.C.S.A. Section 5312
constitutional are inconsistent with the equal protection
clause of the United States Constitution and United States
Supreme Court decisions.
CONCLUSION
For the reasons stated above, Petitioner respectfully
prays this Honorable Court to grant the Petitioner’s
Petition for a Writ of Certiorari to the Supreme Court of
Pennsylvania and submits that this Petition brings before
the Court substantial and important federal questions
which require plenary consideration, with briefs on the
merits and oral argument for their resolution.
Respectfully submitted by,
GREGORY D. HENRY, ESQUIRE
KAUFFMAN, HENRY, MARK & DEBON, LLC
635 Walnut Street
Reading, PA 19601
- (610) 376-7411
APPENDIX
Appendix A — Judgment and Opinion of the Su-
preme Court of Pennsylvania ..............cssseeseeseeeeercenseeees la
Appendix B — Decision of the Honorable Scott D.
Keller of the Court of Common Pleas of Berks
Courhy,, POR I et crciniessetndeeecesersecsosescccssceseesees 30a
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APPENDIX A
[J-142-2006)
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
CAPPY, C.J., CASTILLE, SAYLOR, EAKIN,
BAER, BALDWIN, FITZGERALD, JJ.
JEAN SCHMEHLAND ~ : No. 87 MAP 2005
DAVID SCHMEHL, —: appeal from the Order of the
Appellants ‘ Court of Common Pleas of
' Berks County, entered on July
“ ‘14, 2005 at Dkt. No. 05-5526.
ANNWEGELINAND °
PERRY SCHMEHL, ° SUBMITTED Nov. 29, 2005
Appellees.
OPINION
MR. JUSTICE SAYLOR DECIDED: June 12, 2007
The question presented is whether Section 5312 of the
Domestic Relations Code violates the Equal Protection
Clause of the United States Constitution in providing for
grandparent visitation of a child when the child’s parents
are divorced, engaged in divorce proceedings, or separated
for six months or more.
On November 12, 2002, during Mother and Father’s
separation, a custody order was entered between them
regarding their two children. Five months later they were
divorced. On April 29, 2005, after Mother refused to
permit the children’s paternal grandparents (“Grandpar-
ents”) to pick up the children from school during her
period of custody, Grandparents filed an action in the
Court of Common Pleas of Berks County under Section
2a
5312 seeking partial custody.’ Although Father supports
his parents’ claim, Grandparents joined him as a defen-
dant as a necessary party. See Pa.R.C.P. No.1915.6.
Mother moved to dismiss the action, asserting that Section
5312 violated her Due Process and Equal Protection rights
under the Fourteenth Amendment of the United States
Constitution.’
The challenged statute enables grandparents to seek
partial custody or visitation of their grandchild when the
child’s parents are divorced, engaged in divorce proceed-
ings, or have been separated for six months or more. See
23 Pa.C.S. § 5312. In particular, the statute provides:
In all proceedings for dissolution, subsequent to
the commencement of the proceeding and con-
tinuing 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 visi-
tation 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 re-
lationship. The court shall consider the amount
of personal contact between the parents or
grandparents of the party and the child prior to
the application.
' Grandparents are divorced, but have cooperated to seek partial
custody.
* The Equal Protection Clause, in pertinent part provides that no
State shall “deny to any person within its jurisdiction the equal
protection of the laws.” U.S. CONST. amend. XIV § 1. The Due Process
Clause provides that no State shall “deprive any person of life, liberty,
or property, without due process of law; .. . ” Jd.
3a
Id. In contrast, standing to obtain partial custody or
visitation is not afforded to grandparents of children
whose parents are married and living together.’ This
disparate treatment between intact families - married
parents living together — and divorced or separated par-
ents, Mother argued, violates equal protection principles.
The trial court agreed, finding that Section 5312
violates the Equal Protection Clause because it impermis-
sibly treats intact families differently from parents who
are divorced or separated, and dismissed Grandparent’s
complaint without addressing the merits of their claim.
The trial court noted that the “prohibition against treating
people differently under the law does not preclude the
Commonwealth from resorting to legislative classifica-
tions... .” Schmehl v. Wegelin, No. 05-5526, slip op. at 3
(C.P. Berks July 29, 2005) (quoting Curtis v. Kline, 542 Pa.
249, 256, 666 A.2d 265, 268 (1995)). But when that classi-
fication burdens a fundamental right, the court explained,
strict scrutiny is applied, which requires the classification
to be necessary for a compelling government interest. See
id. Because the classification under Section 5312 burdened
a parent’s fundamental right to make decisions regarding
the upbringing of his or her children, the trial court held
that, to uphold the legislative classification created by the
statute between parents who are married and living
together versus those who are divorced or separated, such
classification must be necessary to vindicate a compelling
government interest. See id. at 6.
* Under Section 5311, when a child’s parents are deceased, the
parent of the deceased parent may seek partial custody or visitation.
See 23 Pa.C.S. § 5311.
4a
The trial court found that no compelling government
interest existed for the classification, noting that, although
the parents are no longer together, it does not logically
follow that state intervention is necessary. In particular,
the court observed:
Both parents remain and, during periods of their
partial custody with the children, either parent
can provide access to their parents. There is no
compelling reason that this Court can see for the
state to require that Mother give up more of her
time with the children, so that Father’s parents
can have their own periods of visitation separate
from visitations while Father has custody....
There is no compelling reason, in fact it would
create the potential] for greater harm, if a child of
separated/divorced parents would be subject to,
in this case, [two] more potential periods of Court
ordered partial custody/visitation. A child of an
intact family has freedom to live their life as a
child, absent court ordered scheduling of their
time. There is no reason to burden a child of
separated/divorced parents with more court or-
dered interference in their already restricted
childhood. Their parents can make sure there is
contact with the grandparents.
Schmehl, No. 05-5526, slip op. at 8.
In its subsequent opinion under Rule of Appellate
Procedure 1925(a), the trial court reiterated its earlier
ruling, explaining:
Although the parents no longer live together,
each must continue to enjoy the fundamental
right, free from court interference, to make deci-
sions about the upbringing of their children, in-
cluding the decision about with whom the
5a
children associate. It is important to note that
this court’s decision does not preclude [Grand-
parents] from ever seeing the children, which
they may do during periods of the father’s partial
custody. It merely asserts that there is no com-
pelling reason to justify subjecting the children of
divorced or separated parents to additional peri-
ods of Court ordered ... custody and visitation,
nor requiring Mother to relinquish periods of her
custody so that Father’s parents may have their
own periods, when such court intervention would
not be permissible if the parents were married or
living together.
Schmehl v. Wegelin, No. 05-5526, slip op. at 3 (C.P. Berks
September 19, 2005). Grandparents appealed to this
Court, which has exclusive appellate jurisdiction of deci-
sions of a court of common pleas that determine a statute
to be unconstitutional. See 42 Pa.C.S. § 722(7).
As the constitutionality of statute presents a question
of law, our review is plenary. See Theodore v. Delaware
Valley School Dist., 575 Pa. 321, 333-334, 836 A.2d 76, 83
(2003) (citing Purple Orchid v. Pennsylvania State Police,
572 Pa. 171, 813 A.2d 801 (2002)). A statute duly enacted
by the General Assembly is presumed valid and wil! not be
declared unconstitutional unless it “clearly, palpably and
plainly violates the Constitution.” Purple Orchid, 572 Pa.
at 171, 178, 813 A.2d at 805. The party seeking to over-
come the presumption of validity bears a heavy burden of
persuasion. See Commonwealth, Dep't of Transp. v. McCaf-
ferty, 563 Pa. 146, 155, 758 A.2d 1155, 1160 (2000).
Grandparents challenge the trial court’s determina-
tion that Section 5312 violates non-intact families’ equal
protection rights. Although Grandparents concede that
Mother’s interest in the care, direction, and control of her
6a
children is a fundamental right, Grandparents assert that
the need to protect children of non-intact families is a
compelling government interest, and the standards set
forth in the statute are narrowly tailored to such interest.
In particular, Grandparents note that, under the statute,
the grant of partial custody or visitation is not automatic;
rather, it depends on several factors that they must
establish.
In contrast, Mother argues that a state should not
interject its own beliefs regarding parenting decisions or
thwart a parent’s ability to raise her children as she sees
fit. She maintains that no compelling interest exists to
treat married parents differently from separated parents
who are still alive and still fit to make decisions regarding
their children. Although she and Father are divorced,
Mother contends, it does not logically follow that state
intervention is necessary.
In Hiller v. Fausey, 588 Pa. 342, 904 A.2d 875 (2006),
cert. denied, __ U.S. ___, ___ S.Ct. ___, 2007 WL 879630
(Mar. 26, 2007), this Court recently considered the consti-
tutionality under the Due Process Clause of another
grandparent visitation statute, Section 5311 of the Domes-
tic Relations Code, which delimits the circumstances in
which a grandparent may seek partial custody or visita-
tion of his or her grandchild when a parent has died.‘
* Section 5311 provides:
If a parent of an unmarried child is deceased, the parents or
grandparents of the deceased parent may be granted rea-
sonable 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 in-
terest of the child and would not interfere with the parent-
child relationship. The court shall consider the amount of
(Continued on following page)
7a
Observing that the right to make decisions concerning the
care, custody, and control of one’s own children “is one of
the oldest fundamental rights protected by the Due Proc-
ess Clause [of the Fourteenth Amendment],” id. at 358,
904 A.2d at 885 (citing Troxel v. Granville, 530 U.S. 57, 65,
120 S.Ct. 2054, 2060 (2000)), this Court determined that
any infringement of such right requires strict scrutiny
review to determine whether the infringement is sup-
ported by a compelling state interest and if the infringe-
ment is narrowly tailored to effectuate that interest. See
Hiller, 588 Pa. at 359, 904 A.2d at 885-86. In applying
strict scrutiny to Section 5311 and finding it constitu-
tional, the Court identified the compelling state interest
for grandparent partial custody or visitation under Section
5311 as the state’s “longstanding interest in protecting the
health and emotional welfare of children,” under the
state’s parens patriae interest. See id. at 359, 904 A.2d at
886. Section 5311 was narrowly tailored to serve that
interest, the Court held, because it extends standing to
seek partial custody or visitation “not merely to grandpar-
ents, but to grandparents whose child has died.” /d.
Additionally, the Court noted that:
This limitation ... furthers our General Assem-
bly’s express public policy to assure the “continu-
ing contact of the child or children with
grandparents when the parent is deceased, di-
vorced or separated.” 23 Pa.C.S. § 5301. More-
over, the rational behind the stated policy is
clear: in the recent past, grandparents have as-
sumed increased roles in their grandchildren’s
personal contact between the parents or grandparents of the
deceased parent and the child prior to the application.
23 Pa.C.S. § 5311.
8a
lives and our cumulative experience demon-
strates the many potential benefits of strong in-
ter-generational ties.
Id. at 360, 904 A.2d at 886 (citing Troxel, 530 U.S. at 64,
120 S.Ct. at 2059). In view of such interest, the Court
found the statute to be narrowly tailored in that it re-
quired the court to ensure that the partial custody and
visitation granted would not interfere with the parent-
child relationship, consider the pre-petition relationship
and prior willingness of the parent to provide access to the
child without a court order, and determine that such grant
would serve the best interests of the child. See id. at 361,
904 A.2d at 887. Additionally, under relevant case law, the
courts must afford a presumption in favor of the parent’s
determination of custody that meaningfully tips the
balance in her favor. See id. at 362-63, 904 A.2d at 887-88.
The present case was addressed in the trial court on
equal protection grounds as opposed to substantive due
process principles and involved Section 5312 of the Domes-
tic Relations Code, as opposed to Section 5311, which was
the subject of Hiller. In this context, however, the substan-
tive due process and equal protection inquiries are essen-
tially identical. In this regard, both inquiries employ a
threshold assessment concerning the weight to be ascribed
to the parental interest to determine the appropriate level
of scrutiny, and both employ a balancing formulation in
the application of such scrutiny in which the government’s
interest is tested, on the one hand, to determine whether it
represents an acceptable infringement on the parental
interest (for purposes of substantive due process), and on
the other hand, whether it is sufficient to support a particu-
lar classification (for equal protection purposes). Addition-
ally, Sections 5311 and 5312, addressing grandparent
9a
visitation and partial custody in circumstances involving
the death of a parent and divorce, respectively, are both
concerned with protecting the health and emotional
welfare of children under the state’s parens patriae inter-
est in circumstances where the child’s family continuity is
disrupted. Finally, in Hiller, Section 5311 was able to
withstand the due process challenge only because the
statute employs a classification scheme restricting its
reach to a limited class of grandparents (those whose
children have died) — in other words, the classification was
at the heart of the determination that the statute was
narrowly tailored to serve the compelling state interest in
protecting the health and emotional welfare of children.
See Hiller, 588 Pa. at 359-60, 904 A.2d at 886. Thus, we
find the Hiller decision to be highly relevant in the present
context.”
* In response to Mr. Chief Justice Cappy’s assertion that we have
improperly intermixed equal protection and due process principles, we
are not alone in recognizing the substantial overlap in the application of
these respective constitutional precepts relative to statutes that rely
upon classifications, such as Sections 5311 and 5312 of the Domestic
Relations Code. See, e.g., Bearden v. Georgia, 461 U.S. 660, 666-67, 103
S.Ct. 2064, 2069 (1983) (highlighting the substantial similarity between
determining whether a particular classification may be used in taking
governmental action consistent with equal protection and assessing
whether it is fundamentally unfair to take such action under substan-
tive due process, as arising in the context of parole revocation decisions
based upon the failure to pay fines by indigents). See generally Goulart
v. Meadows, 220 F.Supp.2d 494, 500 (D.Md.2002) (“Modern substantive
due process analysis is generally understood to overlap considerably
with equal protection analysis.” (citing JOHN E. NOWAK AND RONALD D.
ROTUNDA, CONSTITUTIONAL LAW § 11.4 (5th ed. 1995)); Lofty v. Richard-
son, 440 F.2d 1144, 1147 (6th Cir. 1971) (“As to an assertion of an
arbitrary classification argument, there is a wide area of overlap
between the effect of the Fifth Amendment’s due process clause and the
(Continued on following page)
10a
Here, Mother challenges as a violation of her equal
protection rights the classification between intact and non-
intact families under Section 5312. Given the role allo-
cated to such classification in authorizing an infringement
on a parent’s fundamental right to make child-rearing
decisions, for the reasons elaborated more fully in Hiller, it
is clear that the trial court correctly applied strict scrutiny.
See generally Smith v. Coyne, 555 Pa. 21, 29, 722 A.2d
1022, 1025 (1999) (“Strict scrutiny is applied to classifica-
tions affecting a suspect class or fundamental right.”); see
also Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 1914
(1988). Thus, initially the court appropriately centered the
focus upon whether the classification is necessary to serve
the Commonwealth’s parens patriae interest and whether
the means used are narrowly tailored to effectuate the
state purpose. Khan v. State Bd. of Auctioneer Examiners,
577 Pa. 166, 184, 842 A.2d 936, 947 (2004).° Consistent
Fourteenth Amendment’s equal! protection clause.” (citing Bolling v.
Sharpe, 347 U.S. 497, 74 S.Ct. 693 (1954)).
* In both the equal protection and substantive due process settings,
strict scrutiny has been framed by the courts in various ways, but its
most common formulation centers squarely on the main conception of
“narrowly tailored measures that further compelling government
interests.” Johnson v. California, 543 U.S. 499, 505, 125 S.Ct. 1141,
1146 (2005). The Chief Justice effectively appears to elevate the phrase
“necessary to a compelling state interest” that has sometimes been used
in describing strict scrutiny into an “only means” test for equal protec-
tion that differs from the application of strict scrutiny in due process
analysis. See Dissenting Opinion, slip op. at 4 (Cappy, C.J.). Such an
asserted distinction is faulty, however, in the first instance, because the
courts have employed the same phraseology in both the equal protec-
tion and substantive due process contexts. Compare Khan, 577 Pa. at
184, 842 A.2d at 947 (describing the test for strict scrutiny for purposes
of substantive due process as whether legislation “is necessary to
promote a compelling state interest and is narrowly tailored to effectu-
ate that state purpose.” (emphasis added)), with Commonwealth v. Bell,
512 Pa. 334, 344, 516 A.2d 1172, 1178 (1986) (explaining, in the equal
(Continued on following page)
lla
with Hiller, however, we believe that in applying this test
the trial court ascribed insufficient weight to the govern-
ment’s interest in the children’s well-being, in the context
of this narrowly-tailored statute addressing grandparent
involvement in non-intact families.
In this regard, the classification under Section 5312 is
not based on antagonism against non-intact families, but,
like Section 5311, reflects circumstances where the child’s
family environment has been disturbed. Accord Seagrave
v. Price, 79 S.W.3d 339, 344 (Ark. 2002) (“Because the
differences in the circumstances between married and
divorced parents established the necessity to discriminate
between the classes, the [grandparent visitation] statute
at issue would not be found unconstitutional.”);’ Blixt v.
Blixt, 774 N.E.2d 1052, 1064 (Mass. 2002) (holding that,
under strict scrutiny, a grandparent visitation statute did
not violate equal protection principles, given legislative
protection setting, that strict scrutiny entails consideration of whether
a classification is “necessary to the achievement of a compelling state
interest” (emphasis added)). Moreover, in neither context do we believe
that the essential inquiry amounts to an only means test.
* In Seagrave, on consideration of a grandparent visitation statute
analogous to Section 5312, the Supreme Court of Arkansas found that
the classification between a married parent and unmarried parent was
not based on a suspect classification, and therefore, was subject to
rational basis review to determine whether the classification has a
rational basis that was reasonably related to a legitimate government
purpose. Seagrave, 79 S.W.3d at 343. The court did not specifically
address whether the classification burdened a fundamental nght,
noting that it could apply to situations where the child was in the
custody of someone other than the child’s natural or adoptive parents.
See id. Ultimately, however, the court determined that the Arkansas
statute had been unconstitutionally applied because the trial court had
failed to apply any presumption in favor of the custodial parent’s
decision regarding visitation. See id. at 345.
12a
recognition that children of unmarried or separated
parents may be at heightened risk for certain kinds of
harm when compared with children of intact families); see
also Curtis, 542 Pa. at 261-68, 666 A.2d at 271-74 (Mon-
temuro, J., dissenting) (discussing the impact of divorce
upon children).’ Recognizing the parens patriae interest in
the child’s wellbeing and heightened risk of harm arising
from the breakdown of a marriage, the classification under
Section 5312 is directly and narrowly tailored to such
breakdown, and only provides for visitation or partial
custody to a grandparent in limited circumstances, similar
to the limitations under section 5311 and discussed in
Hiller.
Notably, Section 5312 requires the court to consider
the pre-petition contact between the grandparent and child,
and thereby respects the existence or absence of any rela-
tionship between them, and the prior willingness of the
parent to foster such a relationship without a court order.
See 23 Pa.C.S. §§ 5311-5312; Hiller, 588 Pa. at 361, 904 A.2d
at 887; accord Blixt, 774 N.E.2d at 1064 (noting that grand-
parent visitation “has everything to do with protecting the
* In Curtis, this Court found unconstitutional a statute that
authorized the court to order a separated, divorced, or unmarried
parent to provide for post-secondary, i.e. college, education of his or her
child. See Curtis, 542 Pa. at 258, 666 A.2d at 269. Determining that
there was no entitlement to participate in such education, see id. at 268,
the Court found no rational basis to provide only adult children of
divorced parents such a benefit. See id. at 258-59, 666 A.2d at 269-70.
Here, of course, the statute is directed to the custodial arrangement of a
minor, of which the state has a parens patriae interest, and the harm to
be protected against, disruption of a child’s family environment, directly
and necessarily flows from the circumstances covered by the classifica-
tion at issue. Consequently, the focus is on whether the means used are
narrowly tailored to promote such interest. See Khan, 577 Pa. at 184,
842 A.2d at 947.
13a
child, insofar as possible, by preserving the fruits of signifi-
cant developmental attachment whose seeds were planted
by a parent”).” Additionally, prior to granting a grandparent
access to the child, the trial court must ensure that such
grant will not interfere with the parent-child relationship,
determine that such grant serves the best interests of the
* Madame Justice Baldwin draws a distinction between the
situation involving the death of a parent under Section 5311 and
divorce under Section 5312 in terms of the balancing of the respective
interests involved. See Dissenting Opinion, slip op. at 4 (Baldwin, J.).
Her conclusion appears to be that, although the Court declined in Hiller
to condition grandparent visitation upon a constitutional threshold of
parental unfitness or harm, see Hiller, 588 Pa. at 365-66 & n.24, 904
A.2d at 890 & n.24, such a requirement is appropriate to the divorce
scenario. See Dissenting Opinion, slip op. at 4-8.
This Court recognized in Hiller that the trauma accompanying the
death of a parent is substantial, and we recognize here that the effects
of divorce, including the potential for ongoing disharmony between
parents, may also be highly traumatic. See, eg., Jack Arbuthnet,
Courts’ Perceived Obstacles to Establishing Divorce Education Pro-
grams, 40 Fam. CT. REV. 371, 371 (2002) (discussing a “growing
awareness by academics, mental health professionals, community
service providers, and court personnel alike that divorce can have
devastating effects on those family members least empowered to protect
themselves — the children”). There is no record that would enable us to
gauge a qualitative or quantitative distinction between the impact of
de2th and divorce of parents upon affected children, and we believe that
it exceeds the realm of our judicial expertise to attempt to draw one.
Finally, Justice Baldwin’s appears to conflate merits review concerning
Grandparents’ ultimate entitlement to relief, which is not before us, with
the threshold issue of whether Section 5312 is facially unconstitutional,
with which we are now presented. In doing so, Justice Baldwin incor-
rectly suggests that we have ignored the presumption in favor of a fit
parent (when we have specifically indicated that such presumption must
be given full effect in a merits assessment), and concludes that Grand-
parents have failed to overcome the presumption (although they have not
had the opportunity to do so, because their petition was dismissed by the
trial court based on its determination that Section 5312 was facially
unconstitutional). See Dissenting Opinion, slip op. at 7-8.
l4a
child, see 23 Pa.C.S. §§ 5311-5312, and afford special weight
and deference to a parent’s decision regarding such access.
See Hiller, 588 Pa. at 361, 904 A.2d at 887. Moreover, any
grant of partial custody and visitation must be reasonable.
See 23 Pa.C.S. § 5312.”
Given the statute’s focus on the protecting the child
upon the breakdown of a marriage, and the limited cir-
cumstances in which it applies, that are directed toward
promoting the welfare of the child and limiting the intru-
sion upon the parent, we find that the classification under
Section 5312 is valid, upon the application of strict scru-
tiny. As such, Mother has not satisfied the heavy burden of
establishing that the statute clearly, palpably, and plainly
violates the Constitution. Accordingly, the order of the
common pleas court is reversed, and the case is remanded
for further proceedings consistent with this opinion.”
Messrs. Justice Eakin, Baer and Fitzgerald join the
opinion.
Mr. Chief Justice Cappy files a dissenting opinion.
” In its opinion, the trial court highlighted that Grandparents
could be afforded access to the children during Father’s periods of
custody. This factor may bear upon the merits of a court’s ultimate best
interests and reasonableness determinations. It should be noted,
however, that in other cases access through a parent may not be
possible, such as when a parent has relocated, is incarcerated, or has
been denied partial custody due to circumstances beyond the grandpar-
ents’ control.
“ Although the trial court did not address Mother’s claim that the
statute violated her constitutional due process rights, for the reasons
stated herein, the trial court must ohviously consider Hiller and our
present rationale in finally resolving such claim.
15a
Madame Justice Baldwin files a dissenting opinion in
which Mr. Justice Castille joins.
JUDGMENT ENTERED:
June 12, 2007
/s/ Nonna Blynn
Nonna Blynn, Chief Clerk
DISSENTING OPINION
MR. CHIEF JUSTICE CAPPY DECIDED: June 12, 2007
I join Justice Baldwin’s dissenting opinion to the
extent that it concludes that the state has no compelling
interest to classify parents by marital status under 23
Pa.C.S. § 3512. Because this is a facial constitutional
challe.ige, I do not join any analysis which delves into the
underlying facts of this case but, rather, consider the
statute on its face to determine if it creates a permissible
classification that survives constitutional scrutiny. I write
separately because I believe the majority fails to establish
the state’s compelling interest in classifying parents
according to marital status within the framework of equal
protection.
The essence of the constitutional principle of equal
protection under the law is that like persons in like cir-
cumstances will be treated similarly. Commonwealth v.
Albert, 758 A.2d 1149, 1151 (Pa. 2000). The prohibition
against treating people differently under the law does not
preclude the Commonwealth from resorting to legislative
classifications, provided that those classifications are
reasonable rather than arbitrary and bear a reasonable
relationship to the object of the legislation. Jd. There are
16a
different levels of classifications and standards by which
classifications are weighed, with the highest level of
scrutiny reserved for classifications that burden a suspect
class or a fundamental right. Jd. at 1152. If the classifica-
tion impinges a fundamental right protected by the Con-
stitution, then it is subject to strict scrutiny. Jd. (citing
Smith v. City of Philadelphia, 516 A.2d 306, 311
(Pa. 1986)). A statute containing a classification of this
kind will not be entitled to the usual presumption of
validity, as the majority asserts. See Danson v. Casey, 399
A.2d 360, 372 (Pa. 1979). Rather, the Commonwealth must
establish that its interference with a fundamental right is
compelled by some legitimate state interest, and that the
interference is narrowly tailored to be the least drastic
means of accomplishing that objective. Danson, 399 A.2d
at 372. Strict scrutiny requires that the classification be
necessary to effectuate the state’s compelling interest.
Commonwealth v. Bell, 516 A.2d 1172, 1178 (Pa. 1986)
(emphasis added).
The majority does recognize that parents have the
right to make decisions concerning the care, custody and
control of their children, and that this is a fundamental
right protected by the Due Process Clause. It also properly
asserts the state’s legitimate interest in the welfare of
children. However, the focus of the inquiry under equal
protection is the legitimacy of the classification created by
the statute. The majority correctly states the law in this
area on one hand, but then asserts that the equal protec-
tion inquiry is “essentially identical” to an inquiry of
substantive due process. See Majority Opinion p. 7 supra.
In fact, the caselaw cited by the majority does not refer to the
inquiries as “essentially identical” but rather as “substan-
tially similar” and while it is true that due process and equal
17a
protection involve a substantially similar inquiry in that
the concepts are very much alike, the analyses do differ in
what I believe to be a critical aspect. Both consider
whether the government action is necessary to promote a
compelling state interest and is narrowly tailored to
effectuate that interest, but substantive due process
applies this test to the legislation, whereas under equal
protection we apply that test to the classification created
by the legislation. Compare Khan, 842 A.2d at 947 with
Commonwealth v. Bell, 516 A.2d at 1178. In other words,
strict scrutiny under due process tests the government’s
interest to determine if the statute represents an accept-
able infringement, whereas equal protection, the concept
at issue here, considers whether the government’s interest
is sufficient to support a particular classification. I may
seem to quibble over the precise language that the major-
ity chooses to use, however, I believe that there is a real
risk that the two inquiries will be conflated. This is prob-
lematic because distinct analyses may lead to divergent
results. This concern is borne out by a careful reading of
Blixt v. Blixt, 774 N.E. 1052 (Mass. 2002), a case cited by
the majority to support it’s contention that the governmen-
tal interest here is compelling. In Blixt, the Supreme
Judicial Court of Massachusetts considered a facial chal-
lenge to a grandparent visitation statute similar to our
own on both due process and equal protection grounds. Jd.
at 1056. Under due process, the court found that the
statute satisfied strict scrutiny because “our construction
narrowly tailors it to further the compelling [s]tate inter-
est in protecting the welfare of a child who has experi-
enced a disruption in the family unit from harm.” Jd. at
660. But, although the court recognized the standard of
evaluating the classification within the statute when it
turned to the equal protection analysis, it did not engage
18a
in any analysis as to how the classification itself served
the compelling interest. Jd. at 1064-65. Instead, the Blixt
court merely repeated its due process analysis. Jd. The fact
that the two concepts are so substantially similar makes it
easy to conflate the two distinct tests. Therefore, in the
interests of protecting our constitution and our caselaw, I
think it is important that we highlight the small, but
important way in which the tests are dissimilar.
As stated above, to come to the conclusion that Section
3512 is constitutional after an equal protection challenge,
the majority must show that creating a classification that
holds out different groups of parents for disparate treat-
ment according to their marital status is necessary to
protect the welfare and safety of children. At this point, I
am not persuaded that the majority opinion answers this
question. The majority does correctly state the law with
respect to a strict scrutiny analysis under equal protec-
tion, but then it cites to three cases which are inapt; two
from other jurisdictions. In Seagrave v. Price, 79 S.W.3d
339 (Ark. 2002), the Supreme Court of Arkansas considers
a grandparent visitation statute under rational basis. The
majority makes note of this, but does not elaborate on why
it is relevant that another state’s high court decided that
such a statute could survive a far lower and more deferen-
tial level of scrutiny than we consider in this case. The
same is true of Curtis v. Kline, 666 A.2d 265 (Pa. 1995)
(Montemuro dissenting), which discusses the impact of
divorce on children in the context of rational] basis review.
The only case which appears to be on point is Blixt, which
as I detail above, includes an equal protection inquiry
which collapses into a due process resolution.
Having listed these cases, the majority simply con-
cludes that “Section 5312 is directly and narrowly tailored
19a
to such breakdown” without proffering any independent
analysis as to how classifying parents by marital status is
necessary to protect the compelling interest of the state.
Under an equal protection analysis, it is incumbent upon
this Court to first find the classification to be necessary to
a compelling state interest. The majority does not meet
this burden.
I assert that it is not necessary to group parents into
categories based on their marital status in order to protect
the best interests of children because the fact of divorce or
separation alone is not a proxy for determining which
parents might cause their children harm. In other words,
classifying parents by marital status does not necessarily
divide the children at risk from their parent’s decisions
from the children who are not at risk. This classification
suggests that divorced or separated parents are inherently
less fit to parent, as compared to parents who have married,
or to parents who have never married, but who conjugate.”
No matter what strife might actually ensue within the
family unit, the decisions of fit married or cohabiting
parents as to custody and care of their children will enjoy
special status under Section 3512, but not the parenting
decisions of the divorced or separated. This distinction
between parents based on marital or quasi-marital status is
* In Bishop v. Pillar, 637 A.2d 976 (Pa. 1994) (Opinion Announcing
the Judgment of the Court), a plurality of this Court affirmed the
Superior Court’s construction of Section 3512 to include separated, but
never-married parents within the category of “separated” parents
subject to the additional] state oversight provided by Section 3512. It
seems reasonable to conclude then that never-married but cohabiting
parents who have not separated remain outside the ambit of Section
3512 alongside married parents due to the fact that their living
arrangements create a quasi-marital relationship.
20a
arbitrary. Marital status alone can never serve as an
indication of parental fitness. Without making any distinc-
tion as to marital status, we have held that there is a
presumption that parents will act in a child’s best interest.
Hiller v. Fausey, 904 A.2d 875, 890 (Pa. 2006). The classifi-
cation in Section 3512 would seem to directly contradict
this presumption and suggest that divorced or separated
parents are necessarily in need of heightened state supervi-
sion when they make their parenting decisions.
Furthermore, this case is distinguishable from this
Court’s decision in Hiller, 904 A.2d at 875. There, this
Court considered an as applied challenge to a different
section of the Domestic Relations Code which allows
grandparents to petition for custody when one parent is
deceased. 23 Pa.C.S. § 5311. That statute classified par-
ents into two groups. One group where both parents were
alive, and the other, where one parent had died. This
Court found that these two groups of parents were not
similarly situated and that the classification was neces-
sary to the compelling state interest of the welfare of
children. This Court found that where one parent is
deceased, the child might be at risk of loosing his or her
connection to the grandparents from the deceased parent’s
side of the family. In that case, the classification did serve
as a proxy for determining what children stood at risk of
that particular type of harm and survived strict scrutiny,
as applied to those particular facts, because the classifica-
tion itself was necessary to effectuate a compelling gov-
ernment interest.
But unlike the situation in Hiller, separating the
married or cohabiting from the divorced or separated is
not a substitute for determining which parents might
cause their children harm. Section 3512, which creates a
2la
classification that distinguishes between married or
cohabiting and divorced or separated parents, does not
necessarily serve the state’s compelling interest in the
welfare of children and, therefore, I believe that it cannot
withstand strict scrutiny.
Accordingly, I would affirm the order of the Court of
Common Pleas.
DISSENTING OPINION
MADAME JUSTICE BALDWIN DECIDED: June 12, 2007
The Majority concludes that the trial court failed to
accord proper weight to the interest of the State in the
underlying action and that Section 5312” of the Domestic
Relations Code regarding grandparent custody and visita-
tion survives a constitutional challenge on equal protec-
tion grounds. I respectfully dissent. Section 5312 of title 23
violates the Equal Protection provisions of the Fourteenth
Amendment to the U.S. Constitution and Article 1, §§ 1 &
26 of the Pennsylvania Constitution. Therefore, I would
® Section 5312 provides:
In all proceedings for dissolution, subsequent to the com-
mencement 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 grandpar-
ent of a party, grant reasonable partial custody or visitation
rights, or both, to the unmarried child if it finds that visita-
tion rights or partial custody, or both, would be in the best
interest of the child and would not interfere with the par-
ent-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.
22a
affirm the decision of the Court of Common Pleas of Berks
County.
In Commonwealth v. Albert, 563 Pa. 133, 139, 758
A.2d 1149, 1152 (2000) (internal citations omitted) we set
forth the following with respect to equal protection:
The essence of the constitutional principle of
equal protection under the law is that like persons
in like circumstances will be treated similarly.
However, it does not require that all persons un-
der all circumstances enjoy identical protection
under the law. The right to equal protection under
the law does not absolutely prohibit the Com-
monwealth from classifying individuals for the
purpose of receiving different treatment, and does
not require equal treatment of people having dif-
ferent needs. The prohibition against treating
people differently under the law does not preclude
the Commonwealth from resorting to legislative
classifications, provided that those classifications
are reasonable rather than arbitrary and bear a
reasonable relationship to the object of the legisla-
tion. In other words, a classification must rest
upon some ground of difference which justifies the
classification and have a fair and substantial rela-
tionship to the object of the legislation. Judicial
review must determine whether any classification
is founded on a real and genuine distinction
rather than an artificial one. A classification,
though discriminatory, is not arbitrary or in viola-
tion of the equal protection clause if any state of
facts reasonably can be conceived to sustain that
classification.
In the instant case, section 5312 discriminates be-
tween married parents and divorced parents, permitting a
heightened level of state intervention with respect to
23a
parents who are divorced. The majority relies on our
recent decision in Hiller v. Fausey, 588 Pa. 342, 904 A.2d
875 (2006) in support of its conclusion that the classifica-
tion created by section 5312 passes constitutional muster.
In Hiller, this Court was called upon to determine whether
Section 5311 of the Domestic Relations Code could survive
a due process challenge where the parent of the child’s
deceased mother sought visitation rights and partial
custody. Section 5311 was determined to interfere with the
fundamental right of a parent to control the upbringing of
his or her child, and consequently, we recognized that a
strict scrutiny analysis must be applied. The appropriate
test therefore required a determination that the constitu-
tional infringement was supported by a compelling state
interest and that the infringement was narrowly tailored
to effectuate that interest. We concluded in Hiller that the
state possessed a compelling interest in the health and
welfare of children, and that section 5311 narrowly limits
those who can seek visitation or partial custody not merely
to grandparents, but specifically to grandparents whose
child has died. Hiller, 904 A.2d at 885-90. We further
reasoned that section 5311 protected the father’s right to
raise his son as he saw fit by, among other things, provid-
ing a presumption in favor of the father’s decisions and
requiring that visitation rights not interfere with the
parent-child relationship. Jd.
Relying on Hiller, the majority in the instant case
finds that the State has a compelling interest in distin-
guishing between married and divorced parents because of
the disruption of the intact family by divorce. I respect-
fully disagree. Hiller’s result required both the procedural
protections afforded by Section 5311 and its application to
24a
a situation when a parent has died.“ As we explained in
Hiller:
We cannot conclude that ... a benefit always ac-
crues in cases where grandparents force their
way into grandchildren’s lives through the
courts, contrary to the decision of a fit parent. In
contrast, however, we refuse 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 de-
ceased and the grandparent relationship is long-
standing and significant to the grandchild.
Id. at 886-87. Thus, the analysis in Hiller does not neces-
sarily apply beyond the exceedingly narrow circumstance
where a parent has died and the grandparent had a
significant relationship with the child.
The instant appeal involves an examination of a
different subsection of the grandparent custody and
visitation statute in the context of a different set of facts.
Specifically, unlike Hiller, we are dealing with a divorced
family with living parents who have different opinions as
to the children’s visitation with their grandparents. I
believe this alters the landscape considerably, for I cannot
accept that divorce alone diminishes the fundamental
interest of parents who are making caretaking decisions.
In particular, I do not believe that the statute can survive
the scrutiny involved in comparing two otherwise fit
* We found section 5311 clearly distinguishable from the statute at
issue in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054 (2000). The
statute in Troxel gave standing to any person at any time. However,
section 5311 is limited to grandparents whose child has died.
25a
parents who happen to be divorced to two similarly situ-
ated parents who are not divorced. In the instant case, the
section 5312 classification of parents as married or di-
vorced does not provide a real and genuine distinction
upon which to permit state interference with the funda-
mental right of parents to direct the upbringing of their
children. If Father lived with Mother, the present contro-
versy would not be before this Court. While divorce, by
necessity, permits the State to intervene to resolve imme-
diate and direct disputes that arise between parents over
custody and visitation, divorce is not the sine qua non of a
compelling state interest when non-parents seek to chal-
lenge parental decision-making.
The majority has failed to identify a compelling reason
to discriminate between married and divorced parents.
Although the state has a longstanding interest in protect-
ing the health and emotional welfare of children, that
interest is not implicated merely as a result of divorce
proceedings. While divorce opens the door for courts to
resolve disputes between parents, it does not make par-
ents unfit to make decisions that are in the best interests
of their children. Divorce proceedings alone do not
threaten the health, safety, morals or welfare of children
to constitute a compelling reason for state interference. I
believe that permitting the state to inject itself into a
dispute between two fit parents involving grandparent
visitation violates the grounding premise of Hiller and
Troxel, that fit parents are accorded a presumption in
favor of their decisions regarding their children. The
heightened protection of this valued fundamental interest,
recognized in both Hiller and Troxel, should not be altered
by the marital status of otherwise fit parents, and the
Commonwealth should be held to no lesser standard for
26a
intervention. In Hiller we found Section 5311 narrowly
tailored to serve the state’s compelling interest in chil-
dren’s health and welfare when one parent is deceased. We
did not find that the desire of the State to foster close
relationships between grandparents and grandchildren
alone was sufficient to justify court-ordered visitation and
custody over the objection of a fit parent.
While the Commonwealth has a compelling interest in
protecting the well-being of its children, particularly in
matters of health and safety, this legitimate and compel-
ling interest does not extend to all things that might be
beneficial to children nor confer upon the Commonwealth
the power to intrude upon the decisions of a fit parent. The
Commonwealth may intervene when preventing injury,
abuse, trauma, exploitation, severe deprivation, or other
comparable forms of significant harm. The United State
Supreme Court has indicated that in certain limited
arenas, such as compulsory education and compulsory
vaccination, the State may contravene the decisions of a fit
parent. Meyer v. Nebraska, 262 U.S. 390, 402, 43 S.Ct. 625,
627 (1923) (commenting that “the power of the state to
compel attendance at some school ... is not questioned”);
Jacobson v. Commonwealth of Mass., 197 U.S. 11, 25 S.Ct.
358 (1905) (upholding state compulsory vaccination);
accord In re Walker, 179 Pa. 24, 36 A. 148 (1897); Rhoades
v. Sch. Dist. of Abington Twp., 226 A.2d 53, 60, 424 Pa.
202, 212 (1967). Further, some states have found it neces-
sary to oppose the decisions of a parent involving medical
treatment for life-threatening situations. See, e.g., Matter
of McCauley, 409 Mass. 134, 565 N.E.2d 411 (1991);
Walker v. Superior Court, 47 Cal.3d 112, 763 P.2d 852
(1988); People in Interest of D.L.E., 645 P.2d 271
(Colo. 1982). However, the State does not gain a compelling
27a
interest in supervising the upbringing of a child when both
parents are living, albeit divorced. “[MJere improvement in
quality of life is not a compelling state interest and is
insufficient to justify invasion of constitutional rights. So
long as a family satisfies certain minimum standards with
respect to the care of its children, the state has no interest
in attempting to ‘make things better.’” King v. King, 828
S.W.2d 630, 634 (Ky.1992) (Lambert, J. dissenting).
Section 5312, at issue in the instant case, requires
consideration of the best interests of the child, the impact
on the parent/child relationship, and an established
relationship between grandparent and grandchild. 23
Pa.C.S. § 5312. Healthy relationships with grandparents
unquestionably benefit children. However, the fact that
such relationships are desirable does not permit the State
to force them upon children contrary to the wishes of a fit
custodial parent merely because that parent happens to be
divorced. The Majority Opinion is jurisprudentially irrec-
oncilable with both Troxel and Hiller. The Majority finds
that the statute survives strict scrutiny because (1) the
government has a compelling interest in children’s well-
being and preventing the “heightened risk of harm” caused
by the dissolution of a marriage; and (2) the statute is
narrowly tailored to further that interest, requiring, inter
alia, that the court consider the best interest of the child
and not interfere with the parent-child relationship.
(Majority Opinion, slip op. at 9-10). I fail to see how
grandparent visitation is narrowly tailored to further the
compelling interest of protecting the children of divorced
parents from the perceived detriment caused by the
dissolution of the core family unit. Court-ordered grand-
parent visitation does not significantly further the Com-
monwealth’s interest in helping the children affected by
28a
divorce here because, unlike in Hiller, the paternal grand-
parents can visit their grandchildren during their child’s
custody time. See Hiller, 904 A.2d at 887 (“Unlike 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 not merely to grandpar-
ents, but specifically to grandparents whose child has
died.”)” Moreover, there is no allegation that children of
divorced or separated parents are so traumatized by
divorce or separation that they require the special and
exceptional intervention of the Commonwealth. Even if
divorce traumatizes children enough for the Common-
wealth to acquire a compelling interest to intrude on the
family, something more than court-ordered time with
grandparents is required to further significantly the
Commonwealth’s purpose of safeguarding children’s
welfare.
Section 5312 permits a trial court to interfere too
easily in parental decision-making. Hiller involved the
death of a parent who could no longer ensure that her
child was exposed to her family and heritage. That ele-
ment, which was essential to overcoming the fundamental
right of a parent to decide with whom the child associates,
is missing here.
* Even Troxel emphasized the fact that the grandparents still had
access to the children. See Troxel, 530 U.S. at 71, 120 S.Ct. at 2063
(“Finally, we note that there is no allegation that Granville ever sought
to cut off visitation entirely.”)
29a
Conclusion
Troxel made it clear that when a forum has been
created for a court to consider grandparent visitation, the
judge must presume that a fit parent acts in the best
interests of his or her children.” So long as a parent
adequately cares for his or her children (i.e., is fit), there
will normally be no reason for the state to inject itself into
the private realm of the family to further question the
ability of that parent to make the best decisions concern-
ing the rearing of that parent’s children.” Troxel, 530 U.S.
at 68-69, 120 S.Ct. at 2061. This presumption is not simply
applicable to joint decisions of fit married parents but
applies to the decisions of all fit parents. See Stanley v.
Illinois, 405 U.S. 645, 92 S.Ct. 1208 (1972) (holding that
the state may not interfere with an unwed father’s custody
rights absent proof of unfitness). It is parental fitness, not
mere marital status that gives rise to the presumption.
Divorce does not diminish the fundamental interest of a
parent in parenting and does not make a father or mother
less capable.
The Commonwealth has the power, cloaked in the
doctrine of parens patriae, to determine in divorce proceed-
ings how, in the best interests of the child, custody should
be allocated. However, once this determination is made,
Troxel indicates that decisions by a fit custodial parent
must be accorded the presumption that those decisions are
in the best interests of the child. With both parents living,
and no showing of parental unfitness or harm to the child,
Grandparents have failed to demonstrate that divorce
alone overcomes that presumption.
Mr. Justice Castille joins this dissenting opinion.
30a
APPENDIX B
JEAN SCHMEHL and : IN THE COURT OF
DAVID SCHMEHL : COMMON PLEAS
Plaintiffs - BERKS COUNTY,
- : PENNSYLVANIA _
ANN WEGELIN and; CIVIL ACTION LAW
PERRY SCHMEHL __ . NO, 05-5526
Defendants ‘ Assigned to: Scott D. Keller
ORDER
AND NOW, this 14th day of July 2005, it is hereby
ORDERED AND DECREED that the Complaint filed by
Plaintiffs pursuant to 23 Pa. C.S.A. § 5312 is hereby
DISMISSED. The Court finds that the above provision of
the Grandparents Visitation Statute is a violation of the
Equal Protection Clause of The Fourteenth Amendment of
the United States Constitution and as such is unconstitu-
tional. An opinion in support of this order will follow in
due course.
BY THE COURT:
/s/ Scott D. Keller
SCOTT D. KELLER,
JUDGE
Distribution:
“Prothonotary
“Computer
“Attorney for Plaintiff [Sharon Gray, Esq.]
¥ Plaintiff
“Attorney for Defendant (Gregory D. Henry, Esq.]
“Defendant
¥ Judge Keller
3la
¥{Other — Atty General of PA
Hon. Jerry Poppert
16th Floor Strawberry Sq.
Harrisburg, PA 17120
“Pam Miller Custody Office]
32a
JEAN SCHMEHL and : IN THE COURT OF
DAVID SCHMEHL : COMMON PLEAS
Plaintiffs : BERKS COUNTY,
a : PENNSYLVANIA
ANN WEGELIN and; ©!VIL ACTION LAW
PERRY SCHMEHL . NO, 05-5526
Defendants : CUSTODY
’ Assigned to: Scott D. Keller
Sharon Gray, Esquire
Attorney for the Plaintiffs
Gregory Henry, Esquire
Attorney for Ann Wegelin
OPINION IN SUPPORT OF THIS COURT'S
FINDING THE GRANDPARENTS VISITATION
ACT, 23 Pa.C.S.A. §5312, VIOLATES THE FOUR-
TEENTH AMENDMENT TO THE
UNITED STATES CONSTITUTION S.D. KELLER
[/s/ SDK], J., July 29, 2005
STATEMENT OF THE CASE
Mother (Ann Wegelin) and Father (Perry Schmehl) were
married on January 4, 1992 in Berks County, Pennsylvania.
Two children, Sara A. Schmehl (born 11/6/98) and Samuel C.
Schmehl (born 3/17/95), were born of the marriage. By decree
dated April 11, 2003, the parties were divorced. On Novem-
ber 13, 2002, the court entered a custody order by which the
parties are operating under to this date.
On April 29, 2005, the plaintiffs, paternal grandpar-
ents, filed a custody action against Mother, as Mother
would not allow the children to visit with paternal grand-
parents. On May 5, 2005, Mother filed preliminary objec-
tions to grandparents’ custody action. On May 11, 2005,
33a
Paternal Grandparents filed an amended custody action
naming father as a defendant and the parties agreed he
was a necessary party to the suit.
On May 25, 2005, Mother filed a praecipe for argu-
ment court, alleging that 23 Pa.C.S.A. §5312 is unconstitu-
tional and on the same date filed the required notice to the
Attorney General per PaRCP rule 235. On June 27, 2005,
the plaintiffs field their answer and brief in response to
Mother’s action alleging unconstitutionality of 23 Pa.
C.S.A. §5312. This Court set a hearing date for July 11,
2005 on the constitutional challenge as well as the date for
the defendant’s petition for special relief, which was
unrelated to the constitutional challenge. The Plaintiffs
are divorced grandparents and the Defendant, Perry
Schmehl, their son, is in agreement with visitation with
the grandparents.
After argument heard, and upon review of both
plaintiffs’ and defendant’s briefs, this Court entered an
Order on July 14, 2005 finding that 23 Pa.C.S.A. §5312
violates the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution and dis-
missed the plaintiffs’ complaint for custody.
CONSTITUTIONALITY OF 23 Pa.C.S.A, §5312
This Court finds that 23 Pa.C.S.A. §5312 violates the
Equal Protection Clause of the Fourteenth Amendment to
the United States Constitution. The Fourteenth Amend-
ment to the United States Constitution guarantees that
“no State shall make or enforce any law which shall deny
to any person within its jurisdiction the equal protection of
the laws.” However, the Pennsylvania Supreme Court has
stated “the prohibition against treating people differently
34a
under the law does not preclude the Commonwealth from
resorting to legislative classifications, provided that those
classifications are reasonable rather than arbitrary and
bear a reasonable relationship to the object of the legisla-
tion.” Curtis v. Kline, 542 Pa. 249, 666 A.2d 265, 267-68
(1995). When the classification burdens a fundamental
right, the strict scrutiny test must be applied: the classifi-
cation must be necessary to a compelling governmental
interest.
The statute at issue, deemed the Grandparent’s
Visitation Act, provides three provisions for grandparents’
custody and visitation rights:
a. 23 Pa.C.S.A. §5311: when a parent is de-
ceased;
b. 23 Pa.C.S.A. §5312: when parent’s marriage
is dissolved or parents are separated;
and
c. 23 Pa.C.S.A. §5313: when grandparents may
petition.
The section of the act specifically at issue in this case is
section 5312, which provides:
In the proceedings for dissolution, subsequent to
the commencement of the proceedings and con-
tinuing 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 visi-
tation 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 re-
lationship. The Court shall consider the amount
35a
of personal contact between the parents or
grandparents of the party and the child prior to
the application.
It is clear that §5312 of the Grandparent’s Visitation
Act has created a classification: namely a parent who is
married and resides with her spouse or is unmarried and
lives with their child’s parent has unfettered discretion in
who their children are permitted to associate, however,
parents that are separated and/or divorced, do not have
this unfettered right and the court system may intervene.
It is also clear that the right to be protected in this
case is a fundamental right: “The United States Supreme
Court has stated that the right of parents to make deci-
sions about the upbringing of their children is a funda-
mental right.” Fausey v. Hiller, 851 A.2d 193, (Pa.Super.
2004). “[I]t cannot now be doubted that the Due Process
Clause of the Fourteenth Amendment protects the funda-
mental right of parents to make decisions concerning the
care, custody, and control of their children.” Jd., citing
Troxel v. Granville, 530 U.S. 57, 67, 120 S.Ct. 2054, 147
L.Ed.2d 49 (2000). In relation to the Grandparents Visita-
tion Statute at issue, the Superior Court discussed this
fundamental right and has found that when parents are
married or are not married, but are living together,
Grandparents do not have standing to file for partial
custody or visitation rights. See Herron v. Seizak, 321
Pa.Super. 466, 468 A.2d 803 (1983) and Welsh v. Welsh, 21
D&C 4th (1993).
From the foregoing, then, it becomes clear that the
Grandparent’s Visitation Act creates a classification, and
interferes with a parent’s fundamental right to determine
with whom their children associate. The pertinent ques-
tion then becomes is there a compelling governmental
36a
interest that justifies this intervention and classification.
This Court finds that there is not.
The Superior Court has not yet determined whether
23 Pa.C.S.A. §5312 is constitutional under Equal Protec-
tion Clause of the Fourteenth Amendment, however, the
Pennsylvania Supreme Court and Superior Court have
discussed Equal Protection issues of relative importance to
the issue at hand.
The Pennsylvania Supreme Court has discussed an
Equal Protection issue in terms of whether the legislature
had a legitimate interest in treating the children of sepa-
rated, divorced or unmarried parents differently than
children of married parents for purposes of funding their
children’s college education. See Curtis v. Kline, supra. In
that case, the statute was struck down as the legislature
did not have a legitimate interest in classifying the chil-
dren as it did.
Unlike our case, where the right to be protected is a
fundamental right, the right protected in the Curtis case,
the right to a college education, is not a fundamental right.
In the Curtis case, the statute would be upheld “if there is
any rational basis for the classification” and in the present
matter the statue can be upheld if the “statute us strictly
construed in light of a compelling g governmental pur-
pose.” This is significant, in that, although the subject
matter is different, the classification in the two cases is
similar: intact families are treated differently than sepa-
rated or divorced parents and their children. The statute
creating a classification by permitting the court to order
separated or divorced parents to provide equitably for
educational costs, where parents of in-tact families did not
have to provide for secondary education, did not withstand
37a
a rational basis test, therefore, the similar statute classifi-
cation here, permitting the court to order a divorced or
separated parent to permit their child(ren) to visit with
their grandparents, while in-tact families can make the
decision without court interference, certainly cannot be
said to withstand the strict scrutiny test.
The Superior Court has reviewed an Equal Protection
issue under the Grandparent’s visitation Statute in terms
of 23 Pa.C.S.A. §5311. The Superior Court addressed
whether 23 Pa.C.S.A. section 5311 violated the Equal
Protection Clause of the Fourteenth Amendment in
Faussey v. Hiller, supra. In that case, the Superior Court
found that section 5311 did not violate the Due Process or
the Equal Protection Clause of the Fourteenth Amend-
ment. In Faussey, the Superior Court determined that to
the extent section 5311 treats children differently who
have lost a parent to death than those children who have
not, it is for the “justified and reasonable purpose of
protecting a child’s emotional well-being and accounting
for the potentially different needs of a child whose parent
has died.” Faussey, supra. “The compelling purpose behind
§[5311] is to foster the emotional welfare of children. The
statute treats children from intact families differently
from children who have experienced the death of a parent.
That classification makes perfect sense because it is
precisely in those cases where the danger of alienation
from a grandparent is greatest.” Faussey, supra, citing
Trial Court Opinion at 17.
Our case is significantly different from one in which a
parent dies. This Court agrees that, in that situation,
there is a compelling governmental interest for the child to
continue a relationship with both sets of grandparents,
because without the deceased parent able to provide a
38a
connection for their child with their parent, the surviving
parent could easily keep the child away from the deceased
partner’s parent(s). A child in that situation needs as
much emotional support as possible from their remaining
parent, but also from their grandparents. In our case, both
parents are living, and therefore they have the fundamen-
tal right to make the determination of with whom their
children will associate with. This Court does not see that a
compelling governmental interest exists to treat separated
parents who are still both alive and still fit to make
decisions regarding their children, any differently than
two parents that are still together. Although the parents
are not together, it does not logically follow that state
intervention is necessary. Both parents remain and,
during periods of their partial custody with the children,
either parent can provide access to their parents. There is
no compelling reason that this court can see for the state
to require that Mother give up more of her time with the
children, so that Father’s parents can have their own
periods of visitation separate from visitations while Father
has custody. Additionally, this Court is mindful of the
stress of court ordered partial custody/ visitation schedules
upon children. There is no compelling reason, in fact it
would create the potential for greater harm, if a child of
separated/divorced parents would be subject to, in this
case, 2 more potential periods of Court ordered partial
custody/visitation. A child of an intact family has freedom
to live their life as a child, absent court ordered scheduling
of their time. There is no reason to burden a child of
separated/divorced parents with more court ordered
interference in their already restricted childhood. Their
parents can make sure there is contact with the grandpar-
ents.
39a
As a result of the foregoing, this Court finds that 23
Pa.C.S.A. §5312 violates the Equal Protection Clause of
the Fourteenth Amendment. It has not been established
that there is a compelling governmental interest for
classifying married parents or parents residing together
differently than separated or divorced parents, or children
of the respective classes differently, when the government
is clearly interfering with the parents’ fundamental right
to care, custody and control of their children and the
children’s right to have minimal court ordered restrictions
on their time.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.