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Grandparents Get Access To Greater Custody Rights in Pennsylvania

November 5, 2018

In today’s day and age,  more commonly grandparents are playing a direct role in raising their grandchildren.  Whether this occurs as simply a child care option during the parent’s work day or a permanent solution to an absentee or even deceased parent, often grandparents find themselves being significantly involved in their grandchildren’s everyday lives.

Too often, however, a contentious custody battle may arise leaving grandparents cut off from access to the grandchildren.    As a result of  changes in custody law in Pennsylvania, Grandparents  (and certain other interested adults)  seeking legally enforceable ways to see their grandchildren  no have more avenues through which they can proceed depending on the type of custody they wish to establish.

Standing and In Loco Parentis

To seek custody in a courtroom setting, an individual must have “standing,” or meet certain requirements to sue.  In the custody setting this requires that the individual have a pre-existing history of parenting the child in question, or stand in loco parentis to the child.   Grandparents and great-grandparents are the only type of relative (other than a biological parent) who are explicitly given the right to sue under state law for custody or visitation.

Amendment to  the PA Custody Law 

Recently, the Pennsylvania legislature amended Sections 5324 and 5325 of the Custody Act to expand the definition of individuals qualified to sue for custody of a child. This expansion occurred in large part due to the enormous impact that opioid addiction has had on children’s lives in homes across the state, and the desire of the state to allow family members to intervene for the children’s better interests.

Looking to the Needs of the Children

Grandparents already enjoyed special status in the custody code, allowing them to sue under certain specific instances for custody or simply visitation.   Now, where one of the parents in question is deceased or both parents have a disagreement on whether the grandparents should be allowed any visitation with the children, Grandparents have the ability to sue for partial or supervised physical custody with the children, even if there is no divorce proceeding between the parents.

Grandparents also enjoy the right to sue for primary custody of a child if certain requirements are met. The two preliminary requirements are: the relationship began with parental consent and that they are willing to assume parental responsibilities. If that is established, one of the following will allow a grandparent to sue: the child is a dependent in juvenile court, the child is at substantial risk of parental neglect, abuse, drug abuse or overall incapacity, or the child lived with the grandparent for at least 12 months and was removed by the parent(s).

The recent amendment, however, expands these circumstances for the category of interested adults wishing to step in for kids in need. It specifically requires that neither of the child’s parents have “any sort of care or control of the child.”

Although the amendment will affect many grandparents seeking to intervene, the language actually allows for any individual to sue provided they have a “sustained, substantial, and sincere interest in the welfare of the child.” This language attempts to help expand legal avenues for caretakers of children not who are not directly related to them.

The senators who sponsored the legislation announced that it was intended to combat the amount of children currently being neglected due to one or both parents’ struggle with addiction. In this instance, often it is grandparents and extended family who step in to provide care for the children.

Before this amendment, many individuals such as godparents, aunts, uncles, or even older siblings who function as the primary caregiver of a child faced an enormous battle simply to establish the ability to sue for custody of that child. Now, however, there are more options for interested adults to intervene in court to advocate for the children they care about.

If you are a grandparent  or interested adult seeking advice about custody, or you know someone in this situation, you may wish to contact a lawyer for more information about this law.   At Bookspan Family Law we are ready to help you.