Anita D’Amico September 17, 2018
How the New Grandparent Custody Laws May Help or Harm your Custody Case.
by D’Amico Law, PC
The rights of parents to raise their children as they choose, without interference from others, is recognized a fundamental constitutional right; however, the Courts also recognize the important role that grandparents and other third parties play in children’s lives, from both a best interest and safety perspective, and in doing so have placed parameters in place to allow for custodial time, when appropriate, so as not to interfere with parent’s rights.
Chapter 53 of the Pennsylvania Domestic Relations Code addresses custody and grandparent’s rights. Specifically, Pa. C.S.A. Sections 5324 and 5325 currently address the issues of grandparent’s rights in custody. With the enactment of Senate Bill 844, those sections will be modified effective July 3, 2018.
The current law
Currently, in order to bring a claim for any form of physical of legal custody, the law states that a grandparent who acts in loco parentis (in place of the parent) has the ability to file for physical or legal custody of a child who they act as a parent towards. Additionally, a grandparent who does not act in loco parentis may also bring a claim for custody of the child if: 1) the relationship with the child began either by a court order or with the consent of the child’s parent; 2) who is responsible for the child; and 3) when one of the following occurs: a) the child is established to be a dependent child, b) the child is at risk of being exposed to parental abuse, substance abuse, neglect or incapacity, or c) the child has lived with the grandparent for at least twelve (12) consecutive months and was removed from the home by the parent.
Additionally, the law provides for the ability of a grandparent or great-grandparent to bring a claim for partial physical custody or supervised physical custody. In order to have standing to bring either of these claims, the following circumstances must occur: 1) the child’s parent is deceased and the grandparent or great-grandparent bringing the claim is either the parent or grandparent of the deceased; 2) the child’s parents have been separated for at least six (6) months or have began a divorce proceeding; or 3) the child has lived with the grandparent or great-grandparent for at least twelve (12) consecutive months and was removed from the home by the parent. The new law that is about to go into effect does not enforce the provision that the child’s parents must be separated for at least six (6) months.
The updated law – more opportunities for grandparents and third parties to seek partial physical custody
Beginning July 3, 2018, new laws enacted in Pennsylvania give grandparents more standing (or the right to bring the action before the Court) to bring a custody claim. The laws are particularly helpful for grandparents or third parties who are looking to bring claims for partial physical custody. This change in the law is partially attributed to the opioid epidemic, and the growing need for grandparent or third party caretakers to stand in as caretakers for children.
The new law for standing provides that if a child is in the care of any third party, which could be a grandparent, great-grandparent, aunt, uncle, etc., then the third party would have standing to bring a claim for custody as long as that person has a “sustained, substantial, and sincere interest in the welfare of the child.” This provision only applies when it is a third party versus a third party in a claim for custody of a child. The third party must also show that he/she is responsible for the child or willing to assume responsibility for the child. An additional requirement is that the child is in neither parent’s care.
Additionally, the new law adds to the provision were the grandparent’s relationship with the child began by either a court order or with the consent of the parents. Another requirement is added to the provision, providing that the parents of the child must either a) have started a custody proceeding in court; or 2) do not agree that the grandparent or great-grandparent should have custody of the child.
At D’Amico Law, PC, our family law attorneys have significant experience with grandparent and/or third-party custody rights issues. If you have any questions regarding grandparent rights and/or third-party custody rights, please contact us at 610-444-4555 or email us at info@damicolawpc.com.