In Pennsylvania, grandparents and great-grandparents have physical custody rights surrounding their grandchildren. In rare circumstances, grandparents can request and win primary physical custody of their grandchildren. This is not common, but if the grandparent can overcome any objections toward “standing,” which in a custody setting permits the grandparent to act as a party in the custody action and file a viable custody complaint against the parent/s, it may be granted. In order to request primary physical custody, a grandparent must demonstrate (1) that the grandparent/grandchild relationship began with the consent of a parent or as a result of a court order, (2) that the grandparent is willing to assume responsibility for the grandchild; and (3) the grandchild has been declared dependent by the court, or, the grandchild is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity, or, the grandchild has resided with the grandparent for a period of at least 12 consecutive months before the grandchild was removed from the grandparent’s care by the parent.
In order to have standing to request periods of partial physical custody, a grandparent must demonstrate one of the following (1) a parent of the grandchild is deceased, (2) the parents of the grandchild have been separated for a period of at least six months or have begun proceedings to dissolve their marriage and are continuing to do so; or (3) the grandchild has resided with the grandparent for a period of at least 12 consecutive months before the grandchild was removed from the grandparent’s care by the parent.
Achieving the right to file the custody complaint does not guarantee a grandparent an award of primary physical custody or even partial physical custody, as there remains a very strong presumption that parents should raise and care for their own children. In any custody action, there is always a presumption that custody should be awarded to a parent, over a third party. The only way to rebut this presumption is by demonstrating by clear and convincing evidence that it would be in the best interest of the child to reside with a grandparent over a parent.
Cara A. Boyanowski concentrates her practice in the field of domestic law and wills and estates. As a domestic law practitioner, she represents clients in simple and complex divorce, support, custody, alimony, step-parent adoptions, name change and same-sex divorce and custody matters. She works out of Obermayer’s Harrisburg, PA office and can be reached at 717-234-5315 or at Cara.Boyanowski@obermayer.com.