“Standing” is what lawyers define as “the right to be involved in the litigation” and this has been a hot topic in recent years as many grandparents find themselves immersed in controversies related to their grandchildren. In some of these cases, the actual parents of the grandchildren can agree on little else except that the grandparents need to “butt out” of their war over the kiddies.

That’s a summary of what we have in JCD and AMD v. ALR and TAD-R, a case decided on October 18. The Justice Brobson majority opinion informs us that two adults lived with what are now the grandparents beginning in 2017. During that “residence” there were two children born. In May of 2022, the parents and the grandchildren moved out. Two months later, the grandparents sued for shared legal and partial physical custody of the grandkids. The “parents” responded with preliminary objections arguing that they were an “intact” family and that the grandparents had no standing.

The case was heard in York County and after initially agreeing with the parents that grandparents did not qualify to be parties to a custody dispute, the trial court reconsidered and essentially held that they could litigate their requests but the ruling was not meant to imply that the requests would be granted. The case would move forward.

The parents filed an appeal from that order suggesting that the prior Supreme Court ruling in KC v. LA,  128 A.3d 774 (Pa 2015) should prevail in this instance. The Supreme Court opinion  dives deep into the waters of what is a collateral order under Pa. Appellate Rule 313. A lot of the parent argument relates to their interest in being free to parent their children without having to respond in court to the judicial overtures of grandparents whom they don’t want involved, anymore at least.

If you have a collateral order case, this decision merits some attention. The first two grounds (separability, importance) for collateral appeal were uncontested so the Supreme Court focused on “irreparability” of the decision. Because all the trial court did was say that the grandparents case could go to hearing, the Court ruled that this order conferring standing was scarcely irreparable as it could be fully reviewed if the trial produced an order giving the grandparents shared legal or partial physical custody. The decision signals had the grandparents been denied standing and there was litigation between the parents that would still go forward, the denial would be a collateral order.

We have Chief Justice Todd and Justice Donohue dissenting. They maintain that a parent’s rights to do the parenting is obstructed by judicial interference and litigation cost when standing is granted. They cite an adoption standing case decided in 2017 by the Superior Court, KW v. SL, 157 A.3d 498 where adoptive parents were conferred standing over the objection of a natural father. The father’s right to appeal that order was sustained as the introduction of the adoptive parents to the litigation was seen as irreparable. In a concurring decision Justice Wecht sees the apparent inconsistency of these rulings but opines that a different result (standing conferred to grandparents) arises because the facts are so different.

If you love these kinds of issues, there is lots to parse in these three decisions. And they suggest that despite efforts by statute and case law to clarify who gets invited into the custody courtroom, we have not seen the last of this controversy.

13 MAP 2023