When we think about custody, we naturally think about the rights of a child’s parents to see their child when those parents end their relationship with one another. However, parents are not the only family members who are afforded the right to seek custody of children in Pennsylvania. Specifically, grandparents may also have the right to seek sole or primary custody, partial custody, or visitation of their grandchildren in Pennsylvania.
How to receive Grandparent Custody Rights
Under what circumstances can a grandparent or petition for primary physical custody or legal custody of a child? Pursuant to 53 Pa.C.S. § 5324, a grandparent may file an action for any form of physical custody or legal custody when:
- The grandparent stands in loco parentis to the child (which means that the grandparent is and has been acting in the place of a parent)
- The parents of a child have been separated for a period of at least 6 months or have commenced and continued a proceeding to dissolve their marriage
- The grandparent does not stand in loco parentis, but the grandparent’s relationship with the child began with the parents’ consent or under a court order, the grandparent assumes or is willing to assume responsibility of the child, AND:
- The child has been determined to be a dependent child under 42 Pa.C.S. Chapter 63 (meaning the juvenile court is involved and found the child dependent)
- The child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse, or incapacity
- The child has, for a period of at least 12 consecutive months, resided with the grandparent, excluding brief temporary 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 6 months after the removal of the child from the home
Under all of these circumstances, a grandparent can petition the court to be the child’s primary caretaker. If the grandparent is granted sole or primary physical custody and legal custody rights, then the child will spend the majority of his or her time with the grandparent and the grandparent is able to make important decisions regarding the child’s life, such as medical decisions, educational decisions, and religious decisions.
Other Types of Grandparent Custody Rights
Even if a grandparent is unable to meet all of the requirements listed above in order to seek sole or primary physical custody and legal custody rights, grandparents are also afforded the opportunity to seek other types of custody rights under the Pennsylvania Grandparent Statute. Pursuant to this statute, grandparents have the right to seek partial physical custody and visitation.
Specifically, grandparents can seek these types of custody when:
- The parent of a child is deceased
- The parents of a child have been separated for a period of at least 6 months or have commenced and continued a proceeding to dissolve their marriage
- The child has, for a period of at least 12 consecutive months, resided with the grandparent, excluding brief temporary absences of the child from the home, and is removed from the home by the parents (under this situation, grandparents must file an action within 6 months after the child is removed from the home).
Under any of these circumstances, a grandparent can petition the court to gain partial physical custody or visitation of the child. If granted these rights, the parents of the child are unable to keep grandparents from seeing their grandchildren and allows grandparents to continue forging strong bonds with their grandchildren.
A good example of such a situation can be found by reviewing the case K.T. v. L.S., 118 A.3d 1136 (Pa. Super. 2015). In K.T., the Pennsylvania Superior Court awarded partial physical custody to a set of grandparents despite the objection of the children’s mother.
The two children at issue in K.T. lived with their mother, father, and paternal grandparents for more than a year before their mother and father ended their relationship. When their mother and father ended their relationship, their mother moved out of the parental grandparents; residence and their mother and father shared physical custody. As time wore on, mother obtained primary physical custody of the children and she and the children moved away from Pennsylvania.
Years after mother moved from Pennsylvania, the children’s father passed away in an automobile accident, and the children’s mother no longer allowed the paternal grandparents to have any contact with the children. Out of options and wanting to remain involved in their grandchildren’s lives, paternal grandparents filed for partial physical custody in Pennsylvania under Pennsylvania’s Grandparent Statute.
Pursuant to the Pennsylvania Grandparent Statute, the paternal grandparents in K.T. were awarded partial physical custody for three weeks during the summer, two weekends each spring and fall, and four overnights during the children’s winter break from school. Additionally, the Court also granted paternal grandparents Skype communication with the children every Sunday.
The Court noted that even though the law generally defers to parents in controlling the access to one’s children, that deference gives way when grandparents seek only partial physical custody of their grandchildren. Specifically, the Court stated that “in the recent past, grandparents have assumed increased roles in their grandchildren’s lives and our cumulative experience demonstrates the many potential benefits of strong inter-generational ties.” K.T., 118 A.3d at 1160. “Unless there [is] some compelling reason, we do not believe that a grandchild should be denied visitation to his grandparents.” Id. At 1161.
The Court found no compelling reasons to deny visitation rights to the paternal grandparents, and the paternal grandparents’ rights to see their grandchildren prevailed. The Court further held that the paternal grandparents’ minor criminal convictions were irrelevant in the custody determination because the crimes were not crimes that were enumerated by the legislature as crimes that are relevant in custody cases.
As K.T. demonstrates, grandparents have well established rights to make sure they have access to their grandchildren. However, custody cases involving grandparents can be quite complex and emotional. Therefore, it is strongly advised that you seek the advice of a family law attorney if you are a grandparent seeking to gain any form of custody of your grandchildren.
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