When Custody of the Grandkids is at Issue

Custody of the Grandkids

One of the most difficult areas of Pennsylvania family law offers unique challenges and opportunities for grandparents

Carla Schiff Donnelly, Esq.

Gentile, Horoho & Avalli, P.C. Pittsburgh, Pennsylvania

Many people say that one of the most rewarding and fulfilling aspects of being a parent is later becoming a grandparent.  They love being able to spoil their grandchildren and then, at the end of the day, give them back to their parents.  While grandparent/grandchild roles in every family vary based on the particular family situation, traditionally parents have had the responsibility for raising and educating their children.

Grandparent involvement in the lives of the grandchildren can have significant benefits for everyone involved.  Grandparents are the link between a family’s past and its present and can be wonderful family historians, helping to carry on family traditions.  While they can provide wisdom about their life experiences, they benefit from having a bond with their grandchildren as a way of staying young and keeping in touch with the younger generation.  Indeed, grandchildren can provide grandparents with an opportunity to see their legacy and give them a renewed confidence in their usefulness and self worth.

Unfortunately, grandparents sometimes encounter situations in which they lose contact with a grandchild because of the death of their child or other family circumstances.  In addition, there are some situations in which a grandparent wishes (sometimes reluctantly) to step into the role of the primary caretaker of their grandchildren due to drugs, alcohol, abuse or neglect issues with the parent or parents of the child.

Whether grandparents can have the rights to have time with a grandchild or even go as far as get custody of a grandchild who is in a bad situation will depend almost entirely on state law.  Pennsylvania is one state with a statutory mechanism for grandparents to seek and enforce their rights to have contact with their grandchildren.  There are two separate statutes, one allowing grandparents “partial custody” (less than 50% of the time), otherwise known as “visitation” with their grandchildren.  The second, more stringent statute provides a mechanism for grandparents to obtain more than partial custody and even become the primary or sole caretaker with their grandchildren in addition to legal custody.  This type of custody includes the right to make decisions regarding medical care, education, religion and extra-curricular activities.  Legal custody also entails access to school and medical records and rights including applying for a passport, enrolling the child in school, consenting to medical care and other duties ordinarily afforded by parents in traditional families.

Grandparent Visitation

Pursuant to 23 Pa. C.S.A. § 5325, grandparents can have standing to seek visitation with their grandchildren if the parent of the child is deceased and they are the parents of that deceased parent, or the parents are engaged in a proceeding to dissolve their marriage.  Formerly, there was standing when the parents were separated, but this portion of the statute was found to be unconstitutional in 2016.  Grandparents also have standing to seek partial custody if the child has, for a period of at least of twelve consecutive months, resided with the grandparent (excluding brief absences of the child from their home) and the child has been removed from the home by a parent, provided the grandparent files such an action within the six month period after the child was removed from their home.  This last requirement, if met, also gives the grandparents standing to seek greater custody rights.

In these partial custody situations, the grandparents do not necessarily step into the shoes of a parent in terms of the amount of time they are given with the grandparents.  For example, let’s say a grandparent’s son is divorced from the mother of his child and has time with his children every other weekend for four consecutive nights.  If their son then passes away, the grandparents would not necessarily get the same schedule that their son had.  The court may give them one weekend per month, or perhaps time during certain alternate holidays and the summer.  The court would consider such factors as geographic proximity, the relationship the grandchild previously had with the grandparents, the grandparent’s interest in and ability to handle the responsibilities of educating the child, concerns about the grandparents raised by the other parent of the child, and other factors pertaining to the best interests of the child.  If the grandparents had concerns about the surviving parent of the child, those would need to rise to the level of substance abuse, abuse or neglect, as discussed below, for the grandparents to have the right to more than 50% of the time with their grandchild.

Physical and Legal Custody

There are cases in which, as mentioned above, grandparents seek primary custody or even sole custody of their grandchild, possibly even including legal custody.  The applicable grandparent standing statute, 23 Pa. C.S.A. § 5324, allows grandparents the right to seek and obtain these rights under certain circumstances.

One way for grandparents to obtain standing to seek primary or sole physical custody and/or legal custody would be to show that they were standing in loco parentis to the child.  The term “in loco parentis” refers to a person who puts himself in the situation of the lawful parent by assuming the obligations incident to the parental relationship without the formality of the legal process. The status of “in loco parentis” embodies two ideas; first, the assumption of the parental status, and, second, the discharge of parental duties. See Commonwealth v. Gerstner, 540 Pa. 116, 124, 656 A.2d 108, 114 (1995).

Alternatively, there are grandparents who have not served in loco parentis for their grandchild, usually because they have not been allowed to do so despite their desire, who have concerns about the welfare of their grandchild.  In those cases, pursuant to § 5324, the grandparents would have to show that they are willing to assume responsibility for the child and that either

  1. the child has been determined to be dependant through the juvenile court system, or
  2. the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity or
  3. the child has, for a period of at least twelve consecutive months, resided with the grandparent, excluding brief absences of the child from the home, and is removed from the home by the parents, in which case the action must be filed within six months after the removal of the child from the home.

If a child is declared dependent with the juvenile court system, grandparents then do not have the burden of having to show that there is an issue with the child that warrants their having custody.  They would need to convince the child welfare agency who would have custody of the child that the child’s interests would be served by living with the grandparents.  However, there are cases in which a child has not been declared dependant for a variety of reasons, but the grandparents have grave concerns about the parenting, or the lack of it, in the home of the child.  These cases can be the toughest in terms of obtaining grandparent standing, because the grandparents often lack direct proof about what is going on behind the closed doors of their child’s home, especially when their grandchild is young and not fully verbal.

Although the opportunity to conduct discovery is not automatic in custody cases, grandparents can and should seek leave of court to conduct discovery pursuant to Pa.R.C.P. 1930.5(a) in order to obtain information to assist the court in determining whether they are entitled to standing pursuant to § 5324.  If they obtain standing, this information will further help them in obtaining physical and legal custody once they have standing.

The unique nature of family law in Pennsylvania can be challenging to attorneys not thoroughly familiar with this area of practice.  However, understanding a few of these basic principles and the unique aspects of grandparent custody law in this Commonwealth can equip lawyers in all areas of practice with a familiarity of the statutes to identify potential legal avenues clients can pursue should they encounter certain issues with regard to their grandchildren.

Carla Schiff Donnelly is an attorney in the Pittsburgh-based family law firm of Gentile, Horoho & Avalli, where she focuses her practice on divorce and child custody cases.

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