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 ksmull@cmlaw1.com or call (800) 615-0115.

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