Families can be defined in many different ways, and now, more often than in the past, the different compositions of families are recognized by the Courts. Standing is what allows a party to come into court and file a suit. An easy way to define standing is capacity to sue. While it may be easy to file a lawsuit against a stranger in a civil matter, the Courts keep a tight rein on who can file a suit in a custody action that seeks to gain some measure of legal access to a minor child. As you might assume, biological and adoptive parents have standing to file for custody of their minor children. While a custody Order can contain any number of specific provisions, the primary purpose is to establish legal and physical custody of the minor child. Legal custody is decision-making power for educational, medical, and religious issues, and physical custody is where the child physically resides.
The non-parent party who is given the most access by the court to file suit in a custody action is a grandparent. 23 Pa.C.S. § 5324 specifically defines who has standing to file for any form of physical or legal custody as (1) a parent of the child (2) a person who is standing in loco parentis[1] to the child or (3) a grandparent of the child who is not in loco parentis to the child. Further, the law goes on to establish under what circumstances a grandparent who is not in loco parentis to the child may file suit for custody. You must ask the following questions:
- Did the relationship with the child begin either with the consent of a parent of the child or under a court order?
- Is the grandparent willing to assume responsibility for the child?
- Is one of the following conditions met:
- Has the child been determined to be a dependent child[2] under 42 P.a.C.S. Chapter 63?
- Is the child substantially at risk due to parental abuse, neglect, drug or alcohol abuse, or incapacity?
- Has the child resided with the grandparents for a period of at least 12 consecutive months, excluding brief temporary absences from the home, and is removed from the home by the parents, in which case a grandparent wanting to file a custody action must do so within six months from when the parent removes the child from the home.
In addition to the above, the court permits a grandparent to file a custody action if either parent is deceased. The goal in that instance is to assure that a grandparent whose child is deceased can maintain a relationship with their grandchild.
Prior iterations of the law allowed a grandparent standing to file for custody if the parents of the minor child were separated. This created various problems as the statute presumed that simply because parents were separated, their children were somehow at risk. This led to a situation where separated parents, who made a joint decision that the minor child should not have a relationship with a grandparent, were faced with a court order permitting that same grandparent to see the child despite their united wish against it. The court in DP and BP v. GJP and AP, 146 A.3d 204 (Pa. 2016) found this provision of the law unconstitutional as parents have a fundamental liberty interest in raising their children as they see fit, and the court should not disturb a united decision of the parents for the benefit of a third party.
The next question then becomes, should a grandparent file for custody, and if so, what can they request?
Per 23 Pa.C.S. §5324, a grandparent who stands in loco parentis or whose grandchild has resided with them for 12 months or more can request legal custody and primary physical custody. In many grandparent cases, however, the grandparent does not have standing to seek legal or primary physical custody, but they do have the ability to seek periods of partial physical custody or supervised physical custody. The court must, however, be careful when granting this additional time, as any time a grandparent is provided, time is being taken away from a parent. 23 Pa.C.S. §5328 lists factors that must be considered by the court when determining if a grandparent may be granted periods of physical custody. The statute seeks to allow grandparents to maintain contact with a minor child where there is already a close relationship between grandparent and child while not interfering with the parent-child relationship.
Custody filings can be a very contentious and emotional undertaking. In the situation where a grandparent is filing for custody, that grandparent is filing suit against their own child, which can have consequences on all relationships in the family. While there are many options for litigation in custody court, one should also consider if a filing in court is necessary or appropriate in each specific situation.
[1] In the place of a parent.
[2] A minor child who is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals.
