Most people know that grandparents have some custody rights under Pennsylvania law. What they may not know is what exactly those rights are. What happens when a grandchild is taken out of the grandparents' custody when the parents have already agreed that the child could live with them? Can grandparents have primary physical custody when there is still one parent in the picture? The Pennsylvania Custody Act answers these questions and gives grandparents rights to intervene in a custody action in certain circumstances.
According to the Pennsylvania custody law, grandparents have standing (the right to legally intervene) in a custody action to ask for periods of partial physical custody or supervised physical custody of their grandchildren if certain criteria are met. These criteria include the death of a parent, separation/divorce proceedings between the parents or a situation where a child has already been living with a grandparent or great-grandparent for over a year. Even if the criteria are met, grandparents should consult a family law attorney when they are seeking custody so that they are aware of their rights and the steps they need to take.
Partial or Supervised Physical Custody
One situation where grandparents are allowed to intervene for partial custody or periods of supervised custody is when a parent of a child is deceased. Grandparents may also seek partial custody when the parents of the children are separated or divorced. If either parent has filed for divorce or if the parents have been separated for at least six months, grandparents have legal standing to seek custody.
Sometimes, grandparents already have had physical custody of a child for a period of time, and suddenly a parent decides to remove the child from their home. There are rights for grandparents in these situations too, as long as the child has been living with the grandparents for a period of at least one year. If that is the case, the grandparents must file an action for custody within six months of when the child was removed from their home.
Primary Physical Custody
The law also allows grandparents to ask for primary physical custody of their grandchildren, but the requirements that must be met are much greater than those for partial custody. If the grandparents have already exercised parental duties, just like anyone who has acted in loco parentis to a child, they have standing to file for primary physical custody. The specific circumstances in which grandparents may file for primary physical custody when they are not currently acting in loco parentis are:
- When the relationship between grandparent and child began with the consent of a parent or under a court order.
- When a grandparent assumes responsibility for a child who has been determined dependent in a matter pursuant to the Juvenile Act and who is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity.
- When the child has resided with the grandparents for a period of over one year and a case has been brought by the grandparents seeking custody within six months after the child was removed from their home.
While the provisions of the Custody Act require the Court to determine what is in the best interest of the child, the standing requirements can limit a grandparent's ability to seek primary physical custody of children. I have experienced situations where the parents are separated and one parent decides that they will not allow their child visitation with grandparents. In Lancaster County, our Court generally allows contact and will enter a custody schedule for partial physical custody or visitation for the grandparents. Of course, that does not happen every time, as circumstances differ. But in general, grandparents in this situation will not be barred from visitation as long as the Court determines it is in the best interest of the child.
These are many other issues that can be raised before the Court prior to the entry of a custody order. If you or someone you know has questions about what rights they may have with respect to their grandchild or grandchildren, those questions should be directed to an experienced family law attorney.