We constantly receive calls from grandparents inquiring about their custody rights. In some instances, the grandparent has been the child’s primary caretaker from birth. In other instances, the grandparent has had regular contact with the grandchild and now is excluded from the child’s life due to a divorce. No matter what the situation, many grandparents want to assert their rights and need to understand legally how they do so.
In 2011 a new Child Custody Act (set forth at 23 Pa. C.S.A. § 5321) went into effect in Pennsylvania which clarified the circumstances under which a grandparent may file for custody of a grandchild, as well as the criteria that would be used by the Court to determine if the grandparent’s petition for custody should be granted.
In order for any person in Pennsylvania to request custody of a child, that person must first have “standing” to file a petition. For a grandparent seeking legal custody of a child or sole/primary physical custody of a child, grandparents must either be “in loco parentis” (in the place of a parent) to the child or must 1) have a relationship with the child that began either with consent of a parent or under a court order, 2) assumed or is willing to assume responsibility for the child, or 3) meets one of the following conditions: the child has been determined to be a dependent, the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse, or incapacity, or the child has resided with the grandparent for at least twelve (12) consecutive months and has been removed from the home by the parents, so long as the action is filed within six (6) months of the child being removed from the grandparent’s home. If a grandparent meets one of these criteria, he/she may file for legal custody or sole/primary custody of a grandchild.
If a grandparent is only seeking partial physical custody or supervised physical custody of a grandchild, the grandparent has standing to file a petition if 1) the parent of the child is deceased, 2) the parents are separated for at least six (6) months or have commenced and continued a proceeding to dissolve the marriage, or the child has resided for twelve (12) consecutive months with the grandparent and is removed from the home by the parents, so long as the action is filed within six (6) months of the child being removed from the grandparent’s home. The second provision marks a change from the prior law in Pennsylvania, which had previously only allowed grandparents to seek custody if the parents were pursuing a divorce. The new law broadens this provision to include parents who have been separated for at least six months, even if a complaint in divorce has not been filed.
Once a grandparent has established standing to file for custody, the Court will then consider whether or not the grandparent should be awarded custody of the child. For those grandparents seeking primary/sole physical custody or legal custody, the Court will evaluate their request in the same manner that the Court evaluates a parent’s request for custody. Specifically, the Court will look to the best interest of the child, which is determined by the sixteen custody factors set forth in 23 Pa. C.S.A. § 5328(a).
For grandparents that are only seeking partial physical custody or supervised physical custody, the Court must take into account the rights of the child’s parents (or other party) who has primary custody of the child. Specifically, the statute provides that the Court must consider whether the award of custody would interfere with any parent-child relationship in addition to whether it would be in the best interest of the child. In cases where the grandparent has standing because the parents have been separated for six months or because a parent is deceased, the statute requires that the Court additionally look to the amount of personal contact between the child and the grandparent prior to the filing of the action.
Under Pennsylvania’s statute, great-grandparents may also seek partial physical custody or supervised physical custody under the same statute as grandparents. While the Pennsylvania statute does not specifically permit great-grandparents standing to seek primary/sole physical custody, if the great-grandparent stands “in loco parentis” to the children, the great-grandparent may still seek primary/sole physical custody under that provision.
Regardless of how the party seeking custody establishes his/her standing to file for custody, it is the best interest of the child that remains paramount in the Court’s decision in a custody matter involving parents, grandparents, or great-grandparents