Becoming a grandparent is a special event in one’s life, and grandparents often form close and meaningful bonds with their grandchildren. In many families, grandparents spend a great deal of time with their grandchildren and play an important and active role in their lives.
The separation, divorce or death of a parent, however, can throw a grandparent’s relationship with their grandchildren into disarray and potentially disrupt or even sever the grandparent’s relationship with the grandchildren, particularly where the grandparent does not have a good relationship with the other parent. Fortunately, however, grandparents have rights to seek visitation or custody of their grandchildren in Pennsylvania. The family law attorneys at Cooley & Handy can provide you guidance when seeking rights as a grandparent when seeking some form of custody of your grandchildren.
1. Know the Terms
Under the old custody law, the term “visitation” referred to the right to visit a child and did not include the right to remove the child from the custody parent’s control. The new custody statute does away with that term and instead uses the following terms to describe periods of physical custody: primary physical custody, partial physical custody, shared physical custody, sole physical custody, and supervised physical custody. Depending on the circumstances, a grandparent can pursue primary or sole physical or legal custody, partial physical custody, or supervised physical custody.
2. Grandparent Standing to Pursue Primary Physical or Legal Custody
To pursue some form of custody of your grandchildren, you must have “standing,” which is the legal right to initiate a lawsuit. In the context of custody, under the new custody statute, a person has standing to pursue any form of physical custody or legal custody if he or she is (1) the parent of a child, (2) a person standing in loco parentis (that is, a person who has acted as though they are the parent or in place of the parent of a child), (3) a grandparent who did not act in loco parentis, but whose relationship began with the consent of a parent or court order AND who assumes or is willing to assume responsibility for the child, AND either (a) the child is deemed dependent, (b) the child is at risk due to parental abuse, or (c) the child resided with the grandparent for at least 12 consecutive months, excluding brief temporary absences of the child from the home, and is removed from the home by the parents (* in this instance, the case must be filed within 6 months of the child being removed from the grandparents care). If these requirements are not met, a grandparent may still be able to pursue partial or supervised physical custody of a grandchild, as explained below.
A. Presumptions Concerning Primary Custody
If you are a grandparent that is seeking primary custody of your grandchildren and the children are currently in the care of his or her parents, you must be aware that the court is required to make a presumption that custody should be awarded to a parent. However, this presumption can be rebutted by clear and convincing evidence, which means that the evidence you provide the court indicates that it is highly probable or reasonably certain that it is not in the child’s best interest for custody to be awarded to the parent(s).
3. Grandparent Standing to Pursue Partial Physical Custody or Supervised Physical Custody
A grandparent or great-grandparent has standing to pursue partial physical custody or supervised physical custody (1) when the parent is deceased, (2) when the parents of the child have been separated for at least six months or started an action for divorce or (3) when the child has resided with the grandparent for at least 12 consecutive months, excluding brief temporary absences of the child from the home, and is removed from the home by the parents (* in this instance, the case must be filed within 6 months of the child being removed from the grandparents care).
A. Factors the Court will Consider
If a grandparent or great-grandparent seeks partial custody in cases of death of parent of separation or divorce, the court will consider (1) the amount of personal contact between the child and the party, (2) whether the award interferes with the parent-child relationship, and (3) whether the award of custody is in the best interest of the child. If the child has lived with the grandparent for 12 consecutive months, the court will only consider (1) whether the award interferes with the parent-child relationship and (2) whether the award is in the best interest of the child.
4. Effect of Adoption
It is important to note that any rights to seek physical custody or legal custody rights and any custody rights that have been granted under the framework set forth above to a grandparent or great-grandparent prior to the adoption of the child by an individual other than a stepparent, will be automatically terminated upon such adoption.