Many parents dream of the day they will become grandparents and can dote on their grandchildren. Many of us have fond memories of time spent with our own grandparents who would spoil us with things we did not get at home.
However, sometimes reality does not live up to this dream and, for one reason or another, a parent prevents contact between a grandparent and a grandchild. Or, increasingly now, a grandparent is thrust into the role of parent and is raising a grandchild.
In each situation grandparents may wonder: what are my rights?
Pennsylvania law specifies when a grandparent has the right, or “standing,” to participate in a custody action. All court cases require a party to have standing in order to participate as a party in the litigation. A grandparent must meet certain requirements to become a party in a custody case. Those requirements depend on the grandparent’s goals.
Pennsylvania recognizes two types of custody: legal and physical. Legal custody is the right to make decisions for and receive information about the child. Physical custody pertains to where the child is physically present.
Physical custody orders range from sole physical custody, in which one party has the child full-time, to partial physical custody, in which one party has physical custody some of the time. Physical custody may be supervised by another adult or agency chosen by the parties or appointed by the court.
A grandparent who wants to obtain legal custody or primary physical custody must meet these requirements: the relationship must have begun with the consent of the parent or by court order, and the grandparent must have assumed or be willing to assume responsibility for the child. Additionally, either the child has been adjudicated dependent after a court hearing; is substantially at risk due to a parent’s abuse, neglect, drug or alcohol abuse, or incapacity; or the parent removed the child from the grandparent’s home after the child resided there for a period of 12 or more consecutive months.
An individual may also assert standing based upon in loco parentis status, meaning the individual has performed parental duties for the child, and has tended to the child’s physical, emotional and social needs. Effective July 3, 2018, if neither parent has custody of the child, then anyone with a substantial, sustained and sincere interest in the child’s welfare may seek custody.
A grandparent has additional options when seeking only periods of time with the child. If the child’s parent is deceased, then that parent’s parent may seek partial physical custody. If the child resides with the grandparent for at least 12 consecutive months, and is removed by the parent, then the grandparent may pursue partial physical custody.
Lastly, effective July 3, 2018, a grandparent may pursue partial physical custody if the child’s parents have started custody proceedings, and do not agree on whether the grandparent should have custody. These options also apply to great-grandparents.
Consider these scenarios:
Jim and Mary’s daughter, Lisa, has a son, Teddy. Teddy’s father is incarcerated, and Lisa has an active drug addiction. Lisa frequently leaves Teddy with Jim and Mary, who provide care for him; they take Teddy to doctor appointments and school, ensure he is fed and dressed, and help with homework. One day, Lisa says her parents can no longer see Teddy. Jim and Mary are concerned about Teddy’s safety considering Lisa’s addiction.
Jim and Mary could seek legal custody and any form of physical custody of Teddy. They must establish that Teddy is substantially at risk due to Lisa’s drug abuse. Alternatively, Jim and Mary could pursue custody as serving in loco parentis, as they have provided for Teddy’s physical, emotional and social needs.
Jack and Diane’s daughter, Gina, son-in-law, Thomas, and grandson, Billy, lived with Jack and Diane for 18 months after Gina and Thomas lost their jobs. Jack and Diane provided care for Billy while Billy’s parents were on job interviews. Once Gina and Thomas got back on their feet, they moved out with Billy, and cut off all contact. Jack and Diane want to be able to see Billy on a periodic basis.
Jack and Diane could file for any form of custody, but would have to do so within six months of Gina and Thomas moving out.
In both scenarios, a court would have to determine whether awarding the grandparents custody is in the grandchild’s best interests. With Jack and Diane, the court would also have to determine if periods of custody with Jack and Diane would interfere with Gina and Thomas’ parent-child relationship with Billy.
Custody cases involving grandparents depend on the specific facts of each case and can be time-sensitive. If you have questions about your situation, it is best to consult with a family law attorney who can outline the options for your circumstances.
Keystone Elder Law P.C. would like to thank this week’s guest columnist, Attorney Amy Owen. Owen is an associate at the law firm of Abom & Kutulakis LLP, located in Carlisle. She practices family law and litigation. They can be reached by calling 717-249-0900. This column is for general informational purposes only and does not constitute legal advice.