On July 4, 2018, two amendments to the Pennsylvania child custody laws went into effect making it easier for grandparents and other third parties to seek custody of a minor child. Specifically, Section 5324 and Section 5325(2) of the Pennsylvania Domestic Relation Code, was amended to expand the ability of grandparents and other third parties to assert standing in custody matters.
This legislation was passed as a reaction to the case of D.P. v. G.J.P., 146 A.3d 204 (Pa.2016), which limited grandparent custody rights by holding that grandparents were no longer able to assert standing solely because a child’s parents were separated for a period of at least six months.
After the D.P. decision, a child’s parents would have had to initiate a divorce proceeding in order for the grandparents to seek custody. This prevented many grandparents from seeking custody of their grandchildren. Under the new law, a divorce action is not required. Rather, grandparents may seek custody of a child when an action for custody has already been initiated.
Pursuant to Section 5324 of the code, grandparents can assert standing in a custody matter if they are able to establish by clear and convincing evidence that: (1) they have assumed or are willing to assume responsibility for the child, (2) that they have a “sustained, substantial and sincere interest in the welfare of the child,” and (3) that neither parent is caring for or has any control of the child. In order to meet this threshold, the individual seeking custody must prove that they have a substantial history with this child, and that both parents are not involved in the child’s life.
In D.P. both parents agreed that it was not in the best interest of the children for the grandparents to have partial physical custody of the children. In its decision, the Supreme Court held that in the case where both parents agree that grandparents should not exercise custody, the custodial wishes of the parents supersedes that of the grandparents. The legislature maintained this prong of the D.P. decision. Under section 5325(2) of the code, if both parents agree that grandparents should not have legal or physical custody, the grandparents are prevented from seeking partial or supervised physical custody.
These amendments law merely affect standing and are not determinative as to who will ultimately obtain custody. Although third parties, still face significant challenges when seeking custody of a child, the new amendments makes it easier for grandparents and other third parties to assert standing in child custody proceedings.