Family Matters

How Can a Parent’s Legal Custody Impact Grandparents’ Rights?

There’s a new Superior Court case in Pennsylvania that has the potential to make it harder for grandparents who would like partial physical custody of their grandchildren to get a foot in the door and have the ability to make a case for custodial time. The Lacer v. Selb case is a Non-Precedential Decision but could still persuade the court.  

When do grandparents have standing to file for Partial Physical Custody?

Under the current Pennsylvania statute (23 Pa. C.S.A. §  5325), grandparents (and great-grandparents) have the ability to file for partial physical custody or supervised physical custody so long as they either have the standing to file for any form of physical or legal custody or they meet one of three distinct criteria. The three criteria for standing are as follows:

1. the grandparents’ child (the parent of the child or children subject to the custody action) is deceased;
2. the grandparents’ relationship with the children began with the consent of a parent and/or a court order, the parents of the children have begun a court matter related to the children, and the parents of the children disagree as to whether the grandparents should have custodial time; and,
3. the children have lived with the grandparents for twelve consecutive months and have been removed from the grandparents’ home by their parents within the six months prior to any action being filed by the grandparents.

The first and third criteria remain unaffected by the Lacer v. Selb ruling. It is the second criteria, specifically the provision that the parents must disagree regarding the grandparents having custodial time in order for the grandparents to have the ability to bring an action that is addressed in Lacer.

What’s changed?

The statutory requirement that the parents must disagree as to whether the grandparents should have custodial time is relatively new and was incorporated into the statute in 2018.  After its inclusion in the statute, the Superior Court held in E.A. v. E.C. that the “disagreement” referenced in the statute needs to be a current disagreement.

In Lacer v. Selb, the Court expanded upon E.A. v. E.C. and held that not only must the disagreement be current, but both of the parents must have legal custody of the children in order for there to even be a disagreement. Under this holding, if either parent has sole legal custody of the children the grandparents cannot even come into Court to make an argument for custodial time. Again, while Courts don’t need to follow the holding of Lacer v. Selb, grandparents should now be prepared to address this argument and should consider this additional potential hurdle into their planning and decision-making. Likewise, parents who find themselves involved in a grandparent custodial action should factor the case and its potential impact into their own planning and decision-making.

If you are a grandparent seeking custodial time with your grandchildren or a parent involved in a case involving a grandparent’s request for custodial time, a conversation with an attorney can be helpful in navigating the process.

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.