The landscape of the American family has changed significantly in the 21st century. Instead of the married mother and father raising the children construct being the norm, we now have a wide variety of different family combinations, including single parents, same sex parents, blended families and multi-generational families. Currently, there is a seemingly endless variety of combinations of adults and children living together and calling themselves a family, with the most important factor being that there exists a caring and nurturing environment within which the family members can thrive.
To keep in step with the times, the Pennsylvania legislature enacted laws to allow custody rights to persons other than the biological mother and family. Probably the most common example of this ‘third party custody,’ as it is called, is when grandparents seek custody rights of their grandchild. In 2018, PA Act 21 expanded the custody rights for grandparents, allowing the grandparent of a child to obtain not only partial physical custody rights, but to even obtain primary physical and legal custody (under some very specific circumstances).
Under Pennsylvania law, grandparents are able to request partial physical custody (formerly called ‘visitation’) under the following circumstances:
- If the grandchild’s parent is deceased;
- If the grandchild lived with the grandparents for twelve consecutive months and the grandparents filed their action within six months of when the grandchild was removed from their home;
- Where the grandparents’ relationship with the child began either with the consent of at least one parent (or by way of an order of court order) and where the parents of the child have filed a custody action and the parents do not agree on whether the grandparents should have custody.
This change in the law via Act 21 protects the parents’ inherent right to be the primary decision makers in their child’s life. Under the new law, if both parents are steadfastly opposed to their child having a relationship with the grandparents, the grandparents no longer have the right to seek custody of the grandchild solely because the parents are now getting a divorce (as they had been under the old law). Now, in order for the grandparents to have the right to file a custody action with the court (or to have “standing,” as it is called in the legal world), they would already have to have had a relationship with the grandchild before the parents’ divorce and at least one of the parents would have to support the child’s continued relationship with the grandparent.
What also must be kept in mind is that even though a grandparent may be granted “standing,” that is only the first hurdle he or she will have to overcome. The grandparent litigant must then also present evidence, testimony and clear and convincing proof before the court that awarding he/she/them custody is in the grandchild’s best interest. (The best interest of the child standard is what governs all custody decisions in Pennsylvania and is determined by the evaluation of the numerous factors set forth in the Pennsylvania Custody Act.) Additionally, if here is any evidence supporting the assertion that a grandparent obtaining custody rights would interfere with the child’s relationship with his or her parent, the court could very well rule against the grandparent, even if all of the above factors were satisfied.
If you have questions or need assistance seeking custody of your grandchild, please give us a call. Our experienced Pennsylvania family law practitioners would be happy to provide a free consult regarding your custody issues.
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