One of the important areas of child custody law as it has evolved in the past decade relates to when a grandparent has the legal right (or standing) to pursue claims for partial custody of a grandchild. This is a place where law was evolving; the state Supreme Court intervened to limit grandparent standing based upon principles of family privacy and the legislature intervened with a statute which sought to reconcile family privacy with grandparent interests.
What makes Selembo v. Mariani all the more interesting is that since this evolution in the Commonwealth’s legal thinking the United States Supreme Court has weighed in with cases that suggest that decisions by state courts premised upon a family’s right to privacy may not be consistent with textual or original intent as articulated in the Constitution itself. Unfortiunately, this well reasoned opinion by Judges Bowes, Olson and King was determined to lack precedential value. That’s unfortunate because the facts and analysis are crisply stated and highlight the fact that both sides (parents and grandparents) presented important issues where policy considerations were rightfully in play.
The facts are that James Mariani married and had three children by his first wife between 2006 and 2011. Sadly, the mother of these children died in July 2014. Mr. Mariani met and married his second wife Anne a year after his first wife’s death and Anne Mariana adopted the children in May 2018. In February 2021 the maternal grandparents filed for partial physical custody of the grandchildren in Indiana County under 23 Pa.C.S. 5325(1). The Marianis filed objections asserting that the grandparents lacked standing which the trial court overruled. Under the statute as revised in 2016, the fact that Grandparents William and Jeannie Selembo had lost their daughter in 2014 would seem to fully qualify them as eligible to seek partial custody under Section 5325. But the Marianis asserted that as an “intact” family by reason of the adoption, their right to raise their children should not be interrupted or managed by the courts premised upon the needs of the maternal grandparents. This case squarely pits the interests of bereaved grandparents against the privacy of an intact family; a privacy right which may have been eroded by language in Dobbs v. Jackson Women’s Health Organizations. 597 U.S. 215 (2022). Pennsylvania’s Constitution has its own “privacy” provisions in Article I, Sections 1 & 8. But they don’t speak directly to family privacy.
There is a procedural wrinkle here. To challenge a statute on a constitutional basis, the party raising the question needs to notify the Attorney General of Pennsylvania. The parents failed to do so despite the requirement of Pa.R.C.P. 235. The opinion of Judge Megan King found that because this was a facial challenge to the language of the statute, the failure to notify the attorney general was fatal to the attack on the statute itself. That analysis is found at pages 10-11 of the slip opinion.
Nonetheless, the facts themselves present some difficult challenges. The maternal grandparents had been involved in helping to raise the children in the months immediately following their mother’s death. Matters seem to have been handled smoothly until later 2020 although the level of grandparent involvement post adoption is not set forth in the opinion. The Marianis complaint substantively is that the maternal grandparents have begun to create friction in the new nuclear family by questioning decisions normally the province of the parents. Of significance to this observer is the fact that the two younger children both age 12, testified that they did not enjoy their time with their maternal grandparents. The trial court decided the younger children had been influenced to say that by the Marianis. A court appointed psychologist agreed.
In the end, the time awarded was not significant. One Saturday afternoon each month for four hours and the right to attend public activities (e.g. sports) the children have. The case does not mention other contacts (phone or internet) between children and grandparents and that is a place where outside parties can often and easily interfere with a parent-child relationship.
The Superior Court affirmed acknowledging high levels of conflict but agreeing with the trial court that the Marianis were misconstruing the intended impact of the Selembos contacts. Meanwhile, the conflict was such that counseling was ordered to mitigate the problems- it seems with little effect.
The decision appears to have been a close call made with children now 17 and 12 where there was regular and positive contact for six years after the birth mother’s death but now nearly four years of deteriorating relationships. This case explores facts and law of the kind which both the public and the bar should be encouraged to see as precedential. Obviously, custody cases are unique and precedent is more suggestive than binding. One can fully understand the interests of the Selembos to retain contact with this part of their family. But is the contact worth the conflict in a setting where the contact did work for six years but not hasn’t for four years. Another sub issue touched upon is the fact that the parents have had to underwrite litigation with grandparents for four years while the grandparents (rightfully) have no obligation to contribute. Courts rarely discuss the fact that protracted and acrimonious litigation can try household budgets as much as familial patience.
Selembo v. Mariani 504 EDA 2023
https://law.justia.com/cases/pennsylvania/superior-court/2024/504-wda-2023.html
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