Grandparent’s Rights to Custody in Pennsylvania

Our PA divorce lawyers handle custody situations all the time, some with a focus on family mediation. When it comes to family, grandparents can sue for primary custody, partial custody or visitation of a child only if they have standing. Standing, in legal terms, means a person’s right to take a case before the court based upon their connection to the case. A person must have a significant connection to a case to be able to take it before the court.

With regard to primary physical custody, where the child would be primarily in the care of the grandparent, there are two ways that a grandparent can establish standing. The first is to show that they stand in loco parentis to the child. The phrase in loco parentis refers to a person who puts oneself in the situation of a lawful parent by assuming the obligations incident to the parental relationship without going through the formality of a legal adoption. The status of in loco parentis embodies two ideas; first, the assumption of a parental status, and, second, the discharge of parental duties. If a grandparent can prove that they stand in loco parentis to a child they have standing to go before the court seeking custody rights.

The second way that a grandparent can establish standing to pursue primary custody is to prove that:their relationship with the child began with parent’s permission or by Court Order. In addition, one of the following three criteria must be met:(1) the child must be dependent; or (2) the child must be in danger due to abuse or neglect; or (3) the child must have spent 12 consecutive months with the grandparent.

Grandparents can also seek partial custody or visitation of their grandchildren. This means the right to take the child away from their parents for brief periods which could be a few hours supervised by the parent to as much as a weekend or more away from the parent. Again, a grandparent must establish that they have standing to go forward with an action for partial custody or visitation. To establish standing for partial custody or visitation the grandparent must show one of the following: (1) that one of the parents of the child is deceased; or (2) that the parents of the child have been separated for at least six months; or (3) that the child has spent 12 consecutive months with the grandparent. It is important to note that grandparents have no right to seek partial custody or visitation of children of an intact family where the mother and father are still together.

Finally, once standing is established for partial custody or visitation as set out above, the Court will look at the following factors to determine if the granting of partial custody or visitation is appropriate: (1) the amount of personal contact between the child and the grandparent prior to the filing of the action; (2) whether the award interferes with any parent-child relationship; and (3) whether the award is in the best interest of the child. In a case where the child has been living with the grandparent for 12 consecutive months only the last two factors apply.

For more information on this topic or any other topic related to issues of divorce, custody, support or family law in general, please contact Kris Smull or call (800) 615-0115.

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