Recent Changes in Grandparent’s Rights to Child Custody in Pennsylvania

We previously wrote about the rights of grandparents to seek custody of their grandchildren in Pennsylvania. Recently a Judge in Westmoreland County, Pennsylvania made a decision that may change the current custody law in Pennsylvania. Judge Harry Smail ruled that the present law that allows for grandparents to seek partial physical custody (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) is unconstitutional. The decision is currently on appeal and, if the Appellate Courts uphold the decision, it could change the rights of grandparents to seek partial custody throughout Pennsylvania. Currently in all parts of Pennsylvania except Westmoreland County the law remains unchanged.

Currently custody laws allow grandparents to seek partial custody or visitation of their grandchildren if they have standing. 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;
  2. that the parents of the child have been separated for at least six months;
  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 parents are still together. This is the important part of Judge Smail’s decision. He ruled that it is unconstitutional to treat parents of intact families differently than those who are separated. In the case in question the parents were divorced but both agreed that they did not want the paternal grandparents in their children’s lives. Under the current law the grandparents had a right to ask for partial custody because the parents were no longer together. The Judge found that this is unconstitutional because if the parents were together the grandparents would have had no right to seek child custody.

It is important to note that this decision applies only to grandparents seeking partial child custody under the current statute. The provisions of the statute regarding grandparents seeking sole custody, primary custody and temporary emergency custody in situations where children are at risk are not affected by this decision. In such cases the facts would be different in that the grandparents seeking child custody would either have been acting as a parent for a significant amount of time or would be stepping in to seek sole custody because the children are in some sort of danger.

It is possible that the Appellate Courts will agree with Judge Smail and change the law regarding a grandparent’s right to seek partial custody. It would seem that the most likely outcome would be that the Courts would limit the decision to those cases where both parents do not want the grandparents to have contact with the kids. In a great many cases it is only one of the parents that oppose the grandparent’s visitation so, it is possible, that the Appellate Courts could draw this distinction and not allow standing only when both parents are in agreement.

Keep checking back to find out what the Courts ultimately decide.

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 at or call (800) 615-0115.

  1. Angeline stevenson says:

    I have a current court for for visitation with my daughter, but both places I used, have now said no. The last place said, family therapy. My x parents have custody at the moment. I am looking for another location in westmoreland co, to do visitation or a nuetural party to do them. My daughter is going into her teenage years, and she has been through alot. I can be reached at 724.961.7792.
    I have spoken to grandma, and she won't let me see katlin without supervision. I would rather do a video advise, or a phone call to make it sooner. I will also reach out to the community.

  2. Ruby Baylor says:

    I have been trying to get my grandparents right for 8 years. I want visitation rights because these are my deceased son's children, and at lease one, the oldest has been out of schooling for two years, and he is 15yrs old . His mother won't allow him to see me because she doesn't like me making sure his well being is taken care of. I always questioned if something wasn't right, and she didn't like that.

  3. Patti kish says:

    Do grandparents have rights to custody when the mother is deceased and the father is not on the birth certificate and hasn't been around since birth and now the child is six years old and grandparents raised the child for six years bought him everything and supported him when the father has a criminal background and been in and out of jail for none support of 15 children that he has.does the grandparents have legal standing

  4. Placida Bolinger says:

    The United States is the only country that does not have grandparents visitation in the children’s lives. Grandparents are the help and support in their development. In the United States we allow parents to commit child and elder abuse out if their own problems, retaliation, in-law problems and co-ha oration problems of control., it’s time the United States looked hard at the pain and suffering the parents deliberately do and ALL children are to know their grandparents and grandParents can help and love their grandchildren . The children were born with this right. The 14th amendment does not allow child abuse. And grandparents love does not interfere with parental rights.

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