Grandparents Are People, Too: Custody Rights of Grandparents in Pennsylvania

By Brett J. Zeitlin

In recent years, many states have enacted laws to protect the rights of grandparents. In 2009, the Commonwealth of Pennsylvania enacted legislation specifying when grandparents can file for custody of a minor child. Of course, any person may file for custody of a child if they stand in loco parentis (in place of a parent) to that child. But Pennsylvania’s statute goes further than this by including two provisions that specifically address the rights of grandparents. Under Pennsylvania law, a grandparent may file for any type of physical and legal custody (primary, shared, or partial) when the following criteria are met:

The grandparent’s relationship with the child began with the consent of a parent or by court order;
The grandparent is willing to assume responsibility for the child; and when

One of the following is true:

The child was determined by the court to be “dependent”;
The child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse, or incapacity; or
The child has, for a period of at least 12 consecutive months, resided with the grandparent (excluding brief temporary absences) and is removed from the home by the parents, provided that the grandparent files for custody within six months of the removal.

In addition, Pennsylvania also gives grandparents the right to file for partial custody of a grandchild when:

A parent of the child is deceased; or
The parents of the child have been separated for a period of at least six months or are married but have commenced and continue a proceeding to dissolve their marriage; or
The child has, for a period of at least 12 consecutive months, resided with the grandparent (excluding brief temporary absences) and is removed from the home by the parents, provided that the grandparent files for custody within six months of the removal.

It is important to remember that, despite the statute, the rights of parents are still given greater weight than the rights of grandparents when determining custody. Unlike a custody dispute between two biological parents where the burden of proof is shared equally by the contestants, in a custody dispute between a biological parent and a third party, the burden of proof will favor the biological parent. In those cases, the biological parents have a prima facie right to custody, to be forfeited only if convincing reasons appear that the child’s best interest will be served by an award to the third party. According to the courts, “even before the proceedings start, the evidentiary scale is tipped, and tipped hard, to the biological parents’ side.”

How Do Grandparents Exercise Their Custody Rights?

Just like a parent seeking to establish a custody arrangement, a grandparent seeking custody must file a complaint in the family court of the appropriate jurisdiction. That complaint will then be scheduled for a hearing. If there is already an open case, it will be scheduled to be heard with other open complaints and petitions. At the initial hearing on a grandparent’s complaint, the first thing the court will do is confirm that the grandparent meets the requirements of the 2009 statute. If the requirements are not met, the grandparent has no right to proceed. Once that threshold question is answered, the case proceeds like any other custody matter, and the court will make a custody determination based on the best interests of the child involved.

For grandparents seeking custody, things get more complex when the Department of Human Services (DHS) is involved. DHS generally gets involved with a family when there has been an allegation of abuse or neglect of a child. If there is cause, DHS will file a complaint with the court asking that the child be declared “dependent” and that custody be transferred to DHS. A grandparent’s right to file for custody is not eliminated if a grandchild is determined to be dependent, or if DHS places a grandchild with a foster parent. A hearing still must be held on any complaint for custody filed by a grandparent. Unfortunately, most judges are unwilling to allow grandparents to participate in the dependency hearings themselves (the hearings involving the allegations of abuse or neglect), even though the results of those hearings can be a transfer of custody.

There are two important things that a grandparent seeking custody can do if DHS is involved: (1) File a complaint for custody/petition to intervene in the dependency matter, and (2) foster a relationship with the grandchild’s DHS worker so that DHS knows you are a strong serious placement option for the grandchild.

For more information on grandparents’ rights and any other matters related to family law, please contact any of the Domestic Relations / Family Law attorneys at Willig, Williams & Davidson at 215-814-9200.