Shannon K. Brophy

On August 22, 2006, the Pennsylvania Supreme Court issued a decision in Hiller v. Fausey upholding a trial court's order granting visitation to a grandparent upon the death of the child's parent. This marks the first time that the state's highest court has commented on the grandparent visitation statute since the 2000 decision of the United States Supreme Court in Troxel v. Granville held Washington State's grandparent visitation statute was unconstitutional.

In Hiller, a grandmother had daily contact with her grandson during his mother's terminal battle with cancer, and was instrumental in helping the child cope with the death. Upon his wife's death, the father abruptly denied the child almost any contact with his grandmother. The trial court awarded the grandmother visitation one weekend per month and one week per summer.

Ruling Limited to Situations Involving Death of a Parent
What does this decision actually mean for grandparents seeking court ordered visitation with their grandchildren? Only time will tell exactly how the local courts will implement the Supreme Court's decision. However, it is important to note that Hiller only addresses grandparents (and great grandparents) who are seeking visitation upon the death of the grandchild's parent. The Pennsylvania statute also provides for grandparents to seek visitation when a grandchild had previously resided with them for 12 months or more, or after the grandchild's parents have been separated for six months or more. The Supreme Court, however, has not yet addressed whether those aspects of the statute are constitutional; only the portion of the statute involving a deceased parent has been considered.

What the decision makes clear is that a grandparent does not need to show that the grandchild is or will be harmed unless the court orders visitation. That does not mean that grandparents who have been denied visitation with their grandchildren in the wake of a parent's death can easily gain court ordered visitation.

Parental Rights under the Law
Pennsylvania, as directed by the United States Supreme Court, recognizes the fundamental right of parents to control the care and upbringing of their children. Therefore, a court will begin by presuming that a fit parent is acting in the child's best interest when that parent denies or severely limits visitation.
The grandparent then has the burden of showing that the parents permitted significant contact previously, which led to a strong and affectionate relationship with the child. The court will consider whether the parent would provide sufficient visitation absent a court order. If not, the court will consider whether ordering visitation is in the child's best interest, starting from the presumption that the parent is already acting in the child's best interest. Finally, the court considers whether the court-ordered visitation will interfere with the parent's relationship with the child.

Grandparents seeking court-ordered visitation with their grandchildren have an uphill battle. But, thanks to Hiller, their right to engage in that battle has been protected.

1 Hiller v. Fausey, No. 197 MAP 2004, 2006 Pa. LEXIS 1543 (Pa. August 22, 2006).

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