Update on Grandparent Custody in Pennsylvania

The rights of parents to raise their children as they choose, without interference from others, is recognized as a fundamental right protected by the U.S. Constitution. Nonetheless, the role of grandparents in the lives of children also is recognized as important under certain circumstances when the grandparents’ involvement does not interfere with the rights of the parents.

Some states have enacted laws recognizing how important grandparents are to their grandchildren. In Pennsylvania, provisions in the Custody Act specifically outline several circumstances under which grandparents have the legal right to pursue custody of their grandchildren. In the fall of 2016, the Pennsylvania Supreme Court modified a provision of the Custody Act under which grandparents could seek custody, eliminating the portion of the statute that allows grandparents to seek custody if parents are separated for six (6) months or more and calling into question the validity of the portion of the statute that allows grandparents to seek custody when the parents have started and continued divorce proceedings. Despite that change, there are still several remaining provisions of the custody act which authorize grandparents to pursue custody of their grandchildren.

Presently, it is easiest for grandparents who already have a relationship with their grandchild to pursue custody. If a child has resided with a grandparent for at least twelve (12) consecutive months and is then removed by the parents, the grandparents can petition the court for any type of custody. In this circumstance, grandparents are required to bring an action for custody within six (6) months of the child’s removal from their home.

The grandparent can request legal custody or physical custody. Legal custody is the authority to make major decisions on behalf of the child, usually related to medical care, education and religious training. Physical custody can be primary or partial. Primary physical custody deals with where the child resides or spends the majority of his or her time. Partial physical custody is generally a lesser amount of time spent with another parent or custodian.

When a grandparent has not resided with their grandchild, but the child is being abused or neglected by their parents or is at risk of being abused and neglected because of parental drug or alcohol abuse, untreated mental health concerns or other issues which interfere with the parents’ capacity to care for the child, the grandparent still can pursue custody without a residential requirement being met. Also, in cases where a child has been left in the care of the grandparent, or any third party, that person has the right to pursue custody.

When there are no safety concerns and the child has not resided with or been left in the care of the grandparent, the grandparent can pursue partial physical custody or supervised physical custody, both of which are similar to visitation but give the grandparent the right to remove the child from the parent’s presence. In these instances, the grandparents would not be permitted any legal authority to make decisions on behalf of the child, but would be permitted to simply spend time with the child away from the parents. Prior to being awarded either partial physical or supervised physical custody a grandparent must show that one of the parents is deceased or a complaint seeking a divorce must have been filed by one of the parents.

Until recently, grandparents also could pursue partial physical or supervised physical custody if the parents were separated for at least six months. Parental separation is no longer a reason that confers upon a grandparent the right to pursue custody. However, a divorce filing may allow grandparents the ability to pursue partial physical or supervised physical custody of their grandchildren, with or without parental separation.

The law is ever changing and each situation is different. If you are a grandparent seeking custody of your grandchild, please contact the Pennsylvania child custody lawyers at Willig, Williams & Davidson at (800) 631-1233 to discuss the unique circumstances of your case.