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Grandparents' bids for child custody imperiled

Rich Cholodofsky
| Thursday, Oct. 8, 2015, 10:48 a.m.

State law no longer sides with grandparents who seek visitation rights of their grandchildren in Judge Harry Smail's Westmoreland County courtroom.

The Grandparent's Visitation Act says they can argue for partial custody of children if the parents have been separated for at least six months. Smail says that part of the law is unconstitutional.

“It's a bold step he has made,” said Harry Gruener, a professor at the University of Pittsburgh's family law clinic. “This is a case of constitutional dimension.”

Smail ruled last month in the Family Court case of Duane and Bernadette Ponko of Delmont, who sought partial custody of their three grandchildren. He said that the law giving them the ability to argue for visitation violates due process and equal protection rights the parents have under the Constitution.

The ruling means the law is endangered in Westmoreland County and potentially statewide.

“The ramifications of this have yet to be seen, but if affirmed, it would harm grandparents' standing to ask for custody,” said attorney Amanda Cook, a family law expert based in McCandless.

For now, the ruling applies to Westmoreland County cases in front of Smail. Senior Judge John Driscoll and Judge Chris Scherer also handle custody and family court cases in the county. If it is challenged and upheld by state appeals courts, grandparents' custody rights throughout Pennsylvania would be limited, Cook said.

A challenge to the ruling is expected, said Maria Altobelli, the attorney representing the Ponkos.

“If this decision holds up, basically it means grandparents have no rights to get custody or visitation rights,” Altobelli said.

The children's parents, Gregory and Angela Ponko, divorced in 2012; he lives in Fayette County and she lives in Westmoreland County. The parents had shared custody and agreed to bar the paternal grandparents from having contact with the children.

“Defendants in the present case are fit and able to effectively co-parent their children and are apparently making the same decision they made while still a couple,” the judge wrote. “Consequently, there is no constitutional basis justifying the implicit presumption of unfitness as between these separated and other non-separated parents when the only concern is marital status.”

St. Vincent College law professor Bruce Antkowiak said the court decision won't become binding throughout Pennsylvania until an appeals court rules.

“But it's going to have considerable impact on an immediate basis,” he said. “Any case assigned to the same court will be treated the same way.”

Gruener said custody rights of grandparents have been well-litigated.

“Grandparents have been successful across the United States in claiming standing where no other relatives have. Grandparents are the only ones who come with this prize,” Gruener said.

Michael Ramey, director of communications for Parentalrights.org, a Virginia-based advocacy group that lobbies for a parental rights amendment to the Constitution, said grandparent acts such as Pennsylvania's are contested in courts throughout the country.

Ramey said courts have upheld some grandparent custody and visitation laws, though others were ruled unconstitutional.

“We recognize the value of involving grandparents, but we also have a great responsibility to defend the fundamental right of parents,” Ramey said.

Rich Cholodofsky is a staff writer for Trib Total Media. He can be reached at 724-830-6293 or rcholodofsky@tribweb.com.

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