On February 2, 2024, Flaster Greenberg, P.C. Family Law Shareholder Yoninah Orenstein won a Pennsylvania Superior Court case relating to the Commonwealth’s grandparents’ custody and visitation statute. In November of 2022, Flaster Greenberg filed a petition on behalf of its clients seeking partial physical custody of their grandchild under 23 Pa.C.S.A. § 5325(1), which stipulates that “grandparents and great-grandparents may file an action . . . for partial physical custody or supervised physical custody ... where the parent of the child is deceased.”
Though the custody request was initially granted by the Hearing Officer, the mother objected and filed her exceptions to the Hearing Officer’s Proposed Order. Following a hearing on the mother’s exceptions, the trial court agreed with the original decision providing the grandparents custody of their granddaughter, whom, by then, they had not seen in over a year. The mother appealed, arguing that the court did not apply the “special weight” required by the United States Supreme Court under Troxel v. Granville, 530 U.S. 57 (2000), or the “clear and convincing evidence” standard required by Pennsylvania law, and that the Hearing Officer erred by precluding certain testimony.
The Superior Court rejected all of the mother’s arguments, agreeing with Flaster Greenberg’s position that she failed to properly preserve her argument based on Troxel and, even if preserved, the argument lacked merit because: “[A]s aptly observed by the Paternal Grandparents, the ultimate decision [of when to grant custody to grandparents] is based on the amount of prior contact that grandparents had with the child, whether an award would interfere with the parent-child relationship, and what is in the best interest of the child.” The Court also agreed with Flaster’s position that because the mother did not provide notice of her intended witness, and the testimony to be presented was duplicative, the Hearing Officer rightfully excluded the witness from testifying. Having reviewed the record, the Court determined that the paternal grandparents demonstrated that the child had a “loving relationship” with them and that “[t]he state has a strong interest in preserving this relationship between [the child] and her deceased father’s family.”
