The Pennsylvania legislature recently passed a bill that expands who can request custody of a child. The law clarifies when grandparents can seek custody of their grandchild. It also addresses who can request custody of a minor child when the parents of that child cannot be located.
Senator Donald White from the 41st Senate District first introduced the bill in July 2017 to expand custody rights “where both biological parents are absent, whether due to death or for other reasons”. Senator White said in his legislative memo that this “is especially relevant for individuals/relatives that are increasingly assuming the role of primary caregivers due to the opioid and heroin epidemic in the Commonwealth.” This bill passed both the House and Senate. It was then approved by Governor Tom Wolf on May 4, 2018.
Grandparent Custody Rights:
The ability for grandparents to seek custody was limited by the PA Supreme Court September 2016 in their D.P. v. G.J.P. decision. The opinion held that grandparents could no longer seek custody just because the parents had been separated for at least six months. Justices Baer and Wecht both wrote concurring and dissenting opinions urging the Court to go further, which called into question whether a pursuit of grandparent custody based on the filing of a dissolution of marriage would survive the scrutiny of the PA Supreme Court.
The new law works to resolve the issues raised by the PA Supreme Court. A grandparent can seek custody of a grandchild when a custody action has already been initiated by either parent. The court can refuse to hear a grandparent custody action if both parents believe that contact with the grandparents is not in the best interest of the child. This provision protects the parents’ right to raise their child as they see fit without court interference, unless they have already invited the court into their family. When a parent is determining whether or not to initiate a formal custody proceeding they should consider this possible consequence of filing for custody.
This is not the only time a grandparent is permitted to pursue custody of a grandchild. Grandparents can seek custody when they had a relationship with the grandchild and there were issues of either, neglect, abuse, or dependency. If the child has lived with the Grandparent for at least 12 months, the grandparent may be able to seek custody of a grandchild. Additionally, grandparents can seek custody of a grandchild when the grandparent’s child (who is the parent of the grandchild in question) has died.
Keep in mind that if the two parents agree that it is not in the best interest of the child to be in contact with a grandparent, that joint decision alone could prevent a grandparent from obtaining custody of a grandchild.
Third Party Custody Rights:
When a child’s biological parents cannot be located any person who is willing to assume or has assumed a parenting role may request custody if that person has a “sustained, substantial and sincere” interest in the child. Third parties cannot step in where the child is already involved with a dependency proceeding or where there is a permanent custody order subsequent to a dependency action. A dependency action is usually initiated by a children, youth and family services agency.
Third party custody standing used to require a history of having stood in a parenting role to a child, even though the person was not a biological parent. This is called In Loco Parentis standing. There is currently a custody case about In Loco Parentis standing pending before the Pa Supreme Court.
The new law that was recently enacted narrowly creates potential custody rights for third parties who have never parented the child previously. It was meant to address the issue where friends, neighbors, or relatives are caring for children while their parents have disappeared or have died. It is also useful to help prevent a child from entering the foster care system by allowing non-family members to request custody. This provision may have opened the door for siblings, aunts, uncles, cousins and other family members who did not have custody rights to request custody in some instances.
The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.
Julie R. Colton focuses her practice on all aspects of family law, including but not limited to issues of custody, child support, alimony and spousal support, equitable distribution, domestic violence, international custody, and prenuptial agreements. Her practice is located in Obermayer’s Pittbsurgh office. She can be reached at 412-288-2474 or at Julie.Colton@obermayer.com