The recent and important Pennsylvania Supreme Court case of Peters v. Costello has already sparked debates among Pennsylvania family law practitioners. The Peters case is the first of its kind. In the case, the Supreme Court held that nonbiological grandparents who stand in loco parentis to one of the parents of the child with respect to whom they seek grandparental partial custody/visitation rights, and who otherwise qualify to seek partial custody/visitation, have standing to seek partial custody/visitation under the Grandparents Visitation Act, 23 Pa. C.S.A. Section 5313(a).
The facts in the case (which are potentially confusing) are as follows: Daniel and Maryann Costello babysat Francesca shortly after she was born. When Francesca was 11 months old, her biological mother died and her biological father left her in the custody of the Costellos. When Francesca was 13 years old, she lived with her father for a period of eight months. At the conclusion of the eight-month period, Francesca returned to the Costellos', and Francesca's father and the Costellos entered into a custody agreement that provided, inter alia, that the Costellos should have legal and physical custody of Francesca and shall be responsible for protecting her best interests and welfare.
On Nov. 8, 1997, Francesca (18 years old at the time, unmarried and still residing with the Costellos) gave birth to Felicity. The father of Felicity is Teddy Peters, who was 23 years old at the time of Felicity's birth. Francesca and Felicity lived with the Costellos for the first four years of Felicity's life. In November 2001, Peters was awarded primary physical custody of Felicity and Francesca was awarded limited weekly supervised visits. Peters allowed the Costellos to see Felicity during Christmas 2001, but denied them access to Felicity thereafter.
On March 13, 2002, the Costellos petitioned for visitation/partial physical custody of Felicity. The matter was consolidated with Francesca and Peters' existing custody dispute. The trial court held a consolidated hearing on Oct. 30, 2002, and heard testimony from Francesca, Peters, Daniel Costello, Felicity's teachers, a clinical psychologist hired by Peters, and Peters' neighbor. Peters' expert, who performed a custody evaluation, testified that in her professional opinion, "[Grandparents] should continue to maintain a grandparental relationship with Felicity."
On Nov. 15, 2002, a trial court issued an order awarding shared legal custody of Felicity to Francesca and Peters, with Peters having primary physical custody and Francesca having partial physical custody on the first and third weekend of every month. The court also granted the Costellos partial physical custody of Felicity on the fourth weekend of every month from Friday to Sunday, and seven days of vacation time with Felicity at the conclusion of school each June.
Peters appealed the trial court's decision to the Superior Court only as to the partial custody award to the Costellos. Peters argued that the trial court erred in finding that the Costellos had standing under the Grandparents Visitation Act, where they were neither the biological nor the adoptive grandparents of Felicity. The Superior Court affirmed the trial court's decision and held, as the trial court had, "in loco parentis status embodies an assumption of parental status as well as an actual discharge of parental duties, and gives rise to a relation which is 'exactly the same as between parent and child.'" The Superior Court rejected Peters' argument that the act only applies to biological or adoptive grandparents, agreeing with the trial court that the statute contains no such restriction.
Peters appealed to the Supreme Court, and the Supreme Court granted allocatur and heard the case. On appeal with the Supreme Court, Peters confined "himself to the preliminary and strictly legal question of [grandparents'] standing to seek visitation and/or partial custody under the Grandparent Visitation Act." Peters argued, as he did below, "that the act does not confer standing upon putative grandparents who are neither the adoptive or biological grandparents of the child in question."
The Supreme Court conducted an in-depth analysis of in loco parentis, citing cases, Black's Law Dictionary, and nonlegal dictionaries. The Supreme Court noted that the Grandparent Visitation Statue Section 5313(a) (under which the Costellos petitioned) does not define the term "grandparent." After analyzing dictionary definitions and case law, the Supreme Court stated, "applying these common definitions of the terms grandparent and parent, because appellees' [grandparents] stand in loco parentis to Francesca, they are the parents of Felicity's mother and therefore Felicity's grandparents." Therefore, the Supreme Court affirmed the Superior Court and held that the Costellos are the equivalent to Felicity's maternal grandparents and had standing to file their petition seeking visitation/partial physical custody of Felicity.
Justice Max Baer, in his concurring opinion, stressed that "this ruling is fact-specific and will not be of general application." Baer further stated, "This is simply not a case of the devoted nanny or next door neighbor from a parent's childhood seeking custody of the parent's child, but rather this holding applies only to those individuals who stand in loco parentis to the parent and have lived with the child for 12 months or more."
Justice J. Michael Eakin, the only dissenter, filed a lengthy and detailed dissent in which he Eakin stressed that the plain meaning of the word "grandparents" does not include in loco parentis. Eakin referred to many other states in support of his position. The dissent pointed out that while there is a doctrine of in loco parentis, there is no doctrine of in loco grandparentis. Eakin also indicated that it appears as though the general rule is that in loco parentis status ends when the child reaches the age of majority unless the child is incapacitated. The dissent believes that this case will now open the floodgates to many other cases.
The two sides of the debate among family attorneys mirror the opinion and the dissent. On one side, this opinion is viewed as the right result. On the other side, it is viewed as a stretch. Some practitioners believe, in accordance with the dissent, that the floodgates will now open and many people who could never before enter the courthouse doors to petition for custody may now do so. Practitioners in support of this view also point toward the United States Supreme Court case Troxel v. Granville, and claim that this ruling will infringe upon a parent's ability and right to parent. They further argue that if the term "grandparent" was meant to be extended to those people who are not related by blood or adoption, the statute would have so provided.
However, the same argument can be applied in the converse. If the Legislature did not intend for the term "grandparent" to be extended to a situation as in Peters (i.e., in loco grandparentis), the statute would have contained restrictive language. Obviously, like the debate of Coca-Cola versus Pepsi, this debate can go on endlessly. However, this case is now the law. Therefore, a "grandparent" standing in loco parentis to a child's parent will have standing to petition for visitation or partial physical custody because of this case, as long as all of the requirements set forth in the statute are met and the facts are as compelling as they were in Peters since Peters appears to be fact-sensitive.
An interesting sub-issue arises from this case as well. This case reaffirms that when biological/adoptive grandparents seek visitation or partial physical custody under 23 Pa. C.S.A. Section 5313(a), there are still requirements to be met in order to have standing to petition the court. However, the Pennsylvania Supreme Court held, in the case of R.M. v. Baxter ex. Re. T.M., that a traditional grandparent seeking legal and/or primary physical custody under 23 Pa. C.S.A. Section 5313(b) has automatic standing by virtue of the first sentence of that subsection, which reads: "A grandparent has standing to bring a petition for physical and legal custody of a grandchild."
Therefore, a traditional grandparent seeking "less" under Section 5313(a) (visitation or partial physical custody) has a harder hurdle to overcome when attempting to establish standing to bring an action than a traditional grandparent seeking "more" (legal custody and/or primary physical custody). Does this apply to people standing in loco grandparentis too? The state Supreme Court touched on this issue in a footnote of the opinion but did not resolve it, and Baer also recognized this issue in his concurring opinion.
What remains to be seen is if the same analysis of the majority will apply to nonbiological/non-adoptive grandparents under 23 Pa.C.S.A sections 5311 and 5312.
Section 5311 applies to a traditional grandparent seeking partial physical custody or visitation when one of the parents dies. There is no standing hurdle under Section 5311. Though Section 5311 provides that the court shall consider the amount of personal contact between the grandparent[s] and grandchild prior to the grandparent[s] petitioning the court, there is no 12-month residence requirement between the grandparent and grandchild as in Section 5313(a) in Peters.
Section 5312 applies to a traditional grandparent seeking partial physical custody or visitation when the parents of the child have been divorced or separated for six months or more. The conditions under this section are the same as under Section 5311 when a parent is deceased.
If the majority in Peters is applicable to those petitioning under sections 5311 and 5312, then standing will be dramatically broadened for nonbiological/non-adoptive grandparents in Pennsylvania.
Michael E. Bertin is an associate in the Philadelphia law firm of Obermayer Rebmann Maxwell & Hippel LLP. Mr. Bertin is a member of Council of the Family Law Section of the Pennsylvania Bar Association and is Co-Chairman of the Custody Committee of the Family Law Section of the Philadelphia Bar Association.
This article is reprinted with permission from the February 8, 2006 issue of The Legal Intelligencer © 2006 NLP IP Company.
The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.