Family Matters

Grandparents As Primary Caregivers; Important Considerations in Custody Cases

In the last several years, there has been an increase in custody litigation involving grandparents and other third parties. Often, if grandparents are pursuing custody, it is generally in response to devastating circumstances of abuse, neglect, drug and/or alcohol use, and sometimes the death of a parent.

In Pennsylvania, the Family Court is tasked with making decisions in the best interest of the child or children relating to legal custody (who gets to make decisions for the child) and physical custody (where will the child live). A Court’s decision on these issues depends on the specific facts of each case, and careful scrutiny of the custody factors.

Grandparents are considered third parties in custody matters and the Pennsylvania custody law specifically states: “In any action regarding the custody of the child between a parent of the child and a nonparent, there shall be a presumption that custody shall be awarded to the parent. The presumption in favor of the parent may be rebutted by clear and convincing evidence.”

A parent’s rights are so protected that for the court to disrupt that, the facts are often deeply troubling and sad. It is important for grandparents to know that an award of custody does not mean that parental rights are terminated during the custody proceedings, but are limited. In a recent case I litigated, neither parent was able to care for the minor child; the child, fortunately, has two sets of grandparents who so badly wanted to step in and raise them that they were both pursuing and thus competing against the other for primary physical custody. In the custody order, the court recognized the need for the grandparent who had primary physical custody to make decisions without waiting to consult with the other parties but required the grandparent to keep the parents and other grandparents informed.

My mom has said time and again “My child-raising days are over.” I think about this when I speak with grandparents who likely never imagined trading cookie baking and beach trips for homework and doctors’ appointments.

For grandparents raising their grandchildren, there are additional concerns and issues both from a legal perspective and the practical day-to-day:

• Court Involvement. Depending on what stage your case is at, the court may or may not already be involved. If parents are not willing to give up custody without a court order, you will need to file a Complaint for Custody. Once the court is involved, they stay involved and unless an agreement can be reached a third party will make a decision as to the best interest of the child.
• Parent Involvement. As mentioned, grandparents assuming custody will likely have to continue communicating and/or informing the parents about the child. The court may also direct that the child have communication with one or both parents, as well as other grandparents. No matter how you feel as the grandparent, if the court determines that the communication is appropriate, then you will be expected to follow the terms of the court order.
• Financial Considerations. If grandparents are retired or living on a fixed income, as the primary caregiver they will be able to seek child support from the parent(s). This adds another layer of potential litigation and is worth discussing with an attorney prior to blindly pursuing.
• Length of Intended Custodial Time. Is this a temporary or permanent solution? Custody is always modifiable and based on what is in the best interest of the Child. Obtaining an order of primary custody today will not prevent either parent from seeking modification at a later date if they were able to cure the circumstances that led to the custody order.

It is important to find an attorney who appreciates and understands the unique challenges of grandparents as caregivers. The Obermayer family law group is here to help. Contact an attorney to schedule a consultation.

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.