Can Grandma and Grandpa Get Custody In Pennsylvania?

shutterstock_208005667We 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

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Posted in Custody
6 comments on “Can Grandma and Grandpa Get Custody In Pennsylvania?
  1. Jenn Reid says:

    I have had my grandson in my home since August of 2015. Children Services removed them from my daughter. We had to have a form notarized according to Children Services stating I was to take care of my grandson. The biological Dad wants to sign off his rights to me and for me to take full custody of my grandson. My daughter (grandson’s mother) has moved at least 7 times since I took over care of my grandson and has not seen or talked to him since May of 2016. He is to start kindergarten this fall and I need custody papers to enroll him. What forms do I need to submit to be able to this?

    • Jennifer A. Brandt says:

      Jenn, you should check with an attorney licensed in your jurisdiction. He or she should be able to properly advise you as to what you need. Good luck!

  2. Kathy says:

    my daughter and grandsons both live(d) with my husband and myself since birth, one is now 7 and one is 2. My daughter started dating and moved in her boyfriends who is a ex-con who has given her 3 black eyes, broke a wind shield in her car and punched holes in her bedroom walls. He is no longer living with us, it didn’t last long because of his violence. She had him arrested but when the time came she wouldn’t press charges. He sweet talked her and now she is seeing him again and she is taking the kids with her. I want the boys safe, she cannot guarantee that he will not flip our and beat one the boys or worse. Drugs and drinking were involved and he claims he is now sober and he has been diagnosed with Huntington’s disease which my daughter keeps saying she doesnt want him to die alone. My only concern is my grandsons, she is old enough to understand that he is a threat and can hurt her but the boys are not able to understand and should not be put in this situation, do i have any rights to stop her from moving the boys out and into a dangerous situation?

    • Jennifer A. Brandt says:

      You should consult with a lawyer in your jurisdiction who can hopefully give you some advice concerning your legal rights and next steps. Good luck!

  3. Ann says:

    My 24 yr. daughter moved in with me almost 2 years ago due to domestic abuse from her husband. In addition,she needed help with the care of her 3 and 4 year old sons. Prior to that the children were cared for by the husband’s sister in a very toxic, environment for 8 months. Suddenly, the husband started dropping by unannounced at late hours demanding to see the children ( this occurred twice) . We hadn’t followed the custody order, because we feel he needs supervision due to his medical and mental conditions. The court didn’t acknowledge or put this in place. Recently, with the help of the sister, he was able to get custody 3 weekends per month despite the PFA order we filed last month. The lawyer from the Women’s Place suggested the PFA be a part of the custody order because the abuse occurred so very long ago . Now, boys have been returning from the Aunt’s visits using very foul language and disparaging remarks about their mother, her fiancee and their newborn son. My daughter got on the phone and told her ex husband and his sister that if this continues she will not allow them to see the kids because they are violating the custody which prohibits talking badly about either parent. I feel that their actions are not going to change despite her warning them. I fear that emotional/psychological damage is definitely taking place. When my daughter and children moved in with me, the children had severe developmental delays because of their early trauma. They have made tremendous strides residing at my house. I believe these weekend visits will definitely set them back.Is their anything I can do? Is perhaps adoption by me, the answer?

    • Jennifer A. Brandt says:

      Ann,
      Thank you for your comment. I am not able to give you legal advice, but I would suggest that you consult with a family law attorney who can inform you about your options. Good luck!

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About Family Law Focus
The Family Law Focus blog provides highlights, updates and insights on complex family disputes including divorce, division of property, and alimony; child and spousal support; child custody; domestic violence; pre- and post-nuptial agreements; name changes; and adoption or termination of parental rights.
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The Editor

Jennifer A. Brandt, of Cozen O'Connor's Family Law practice, has represented a wide variety of clients in hundreds of family law cases throughout her career. Jennifer is a regular legal commentator on national and local television outlets such as CNN, Fox New Network, HLN, MSNBC, Fox29, ABC News, NBC and CBS and frequently writes and contributes to articles in numerous publications, including the Huffington Post, Fox Business.com, The PhiIly Post, Avvo.com, Allparenting.com, The Philadelphia Inquirer, The Philadelphia Business Journal, the National Law Journal, and Main Line Today magazine.
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