Grandparents and Custody

Many times, grandparents are left wondering whether they have any custody rights under Pennsylvania law. For Pennsylvania grandparents, there’s good news.  In many custody cases where one or both parents have died or are unfit, grandparents have priority over other persons if any issues arise regarding the parents’ custody of the child or children, such as death or fitness issues such as drug abuse.  And for grandparents who have had a good relationship with their grandchild or grandchildren, Pennsylvania courts may apply the best interest analysis to determine whether grandparents should have continuing contact.  (23 Pa.C.S.A. sec. 5311 – 5314;  See also:  Gradwell v Strausser, 416 Pa. Super. 118, 610 A.2d 999 (1992); Herron v Seizak, 321 Pa. Super. 466, 468.

The best interests of children are served when factors such as the child’s physical, intellectual, emotional, and spiritual well-being are improved. (Johnson v Diesinger, 404 PA. Super. 41, 589 A.2d 1160 (1991).) But it is not enough that the grandparents could help the child or children in these ways. The grandparents must show that the child or children would benefit from a relationship with them (Com. ex rel. Miller v Miller, 329 Pa. Super. 248, 478 A.2d 451 (1984) and then the Court will weigh all of the related factors and issues in the case to determine whether the grandparents should have visitation or not (Rowles v Rowles, 542 Pa. 443, 668 A.2d 126 (1995)).

One important question is whether grandparent visitation or custody would interfere with the biological parent’s rights to raise his or her child as he or she sees fit.

Another important factor is the nature of the relationship between the child and the grandparents. Was it long term? Did the grandparents take care of the child a lot? In cases where the child was being raised by the grandparents prior to removal by the parent, the grandparents have statutory rights. Pa.C.S. sec. 5313 allows grandparents to obtain visitation rights if they raised the child or children for more than one year so long as the visitation would not interfere with the parent’s rights.

Pennsylvania’s child custody as it relates to grandparents, is found at 23 Pa. C.S. 5324. It specifies that grandparents may file for “any form of physical custody or legal custody.” If the grandparent stands “in loco parentis,” a phrase which means roughly “acting as the parent of the child,” then grandparents can file.

To be in loco parentis, the grandparent must have assumed parental status and actually behaved as a (good) parent would in caring for the child (Peters v Costello, 586 Pa. 102, 891 A.2d 705 (2005)).

If the grandparents are not “in loco parentis,” then the following must be the case in order for them to file for custody:

1. Their relationship with the child must have begun either with the consent of a parent of the child or under a court order (23 Pa. C.S. §5324(3)(i)).

2. They must be willing to assume responsibility for the child (23 Pa. C.S. §5324(3)(ii).

3. Finally, either (1) the child must have been determined to be a dependent child under 42 Pa. C.S. Ch. 63 relating to juvenile matters; or (2) the child must be substantially as risk due to parental abuse, neglect, drug or alcohol abuse or incapacity; or (3) the child has for a period of at least 12 consecutive months resided with the grandparent, excluding brief absences, and was removed from the home by the parents, in which case the custody action must be filed within six months (23 Pa. C.S. §5324(3)(iii)(A)-(C)).

What if one parent dies and the other parent does not like his or her in-laws?

If the relationship between the grandparents and the surviving spouse/parent causes tension, then the Courts have reason to deny visitation to the grandparents and they will (Rigler v Treen, 442 Pa. Super. 533, 660 A.2d 111 (1995); Com. ex rel. Zaffarano v Genaro, 500 Pa. 256, 455 A.2d 1180 (1983)).

If you are a grandparent and have concerns about your grandchildren, call now for a free consultation at 215-525-1511.