Grandparents’ rights to little one custody in PA | Excessive Swartz LLP

When Act 21 went into effect in Pennsylvania in 2018, it changed how and when grandparents can seek custody of their grandchildren.

PA Act 21 expanded grandparent custody and third party custody, adding those who can seek custody of a child through its courts. Below is a summary of how the law changed third party custody and grandparent custody in Pennsylvania. If you have any further questions, please contact a custody attorney in your area.

Third party custody rights

As of 2011, Pennsylvania law provides for three specific categories of people who can seek any form of custody:

1. one parent;
2. Grandparents or great-grandparents (if very specific conditions are met); and
3. a person who is in loco parentis to the child.

In 2018, PA Act 21 added a fourth category of people who can seek any form of custody: Any person (not just a family member) as long as the child is not part of a maintenance proceeding and the following criteria are demonstrated by the court:

1. the third person has taken or is willing to take responsibility for the child
2. the third person has a continuing, substantial and sincere interest in the child’s best interests based on the nature, quality, extent and duration of the person’s participation in the child’s life
3. Neither parent has any form of care or control over the child

So why the change?

As recent statistics show, the opioid epidemic has hit Pennsylvania hard and created new trends in the family structure. If a child’s parents were suddenly unavailable due to death or other reasons before July 3, 2018, only grandparents or someone who historically assumed a parental role could apply for custody. Now, under Pennsylvania’s new law, other relatives or willing third parties can seek custody as long as they have a continuing, substantial, and sincere interest.

Partial custody of grandparents (aka grandparent visit)

Aside from the right to seek primary custody, Pennsylvania law also allows qualified grandparents the right to seek partial physical custody (also known as visiting).

The three circumstances in which a grandparent can seek partial physical custody are:

1. If the grandchild’s parent has passed away;
2. If the grandchild lived with the grandparents for twelve consecutive months and the grandparents brought an action within six months of the grandchild’s move; and
3. When the grandparents’ relationship with the child began either with the consent of one of the parents or as a result of a court order AND when the child’s parents have initiated custody proceedings AND the parents disagree on whether the grandparents should have custody.

The third circumstance listed above (Section 3) is entirely new with the passage of Act 21. Under old Pennsylvania law, Section (3) allowed grandparents to seek partial custody of their grandchildren if the grandchildren’s parents were for a period of. have been separated for at least six months or have initiated and continued proceedings to dissolve the marriage

So why the change?

For example, let’s say mom and dad have spent the last eight years keeping creepy, estranged grandfather Joe away from their impressionable little Billy. When Billy’s parents divorced under old Pennsylvania law, it suddenly offered creepy Grandpa Joe the opportunity to seek partial custody, even though both parents were decidedly hostile to the presence of creepy Grandpa Joe in Billy’s life. Faced with this flaw, the Pennsylvania Supreme Court said this was not just a bad idea, it was downright unconstitutional (because it compromised parents’ constitutional right to raise their children). Under the new law, Grandpa Joe should have been in a relationship with Little Billy before the parents’ divorce, and at least one of the parents must be for Billy and Grandpa Joe’s continued relationship.

Of course, it is important to keep in mind that even if a party can be granted “opinion”, that is, the right to seek custody, this is only the first step. A grandparent or third party must produce evidence, testify, and convince the court that granting custody of the grandparents is in the grandchild’s “best interests” (according to the numerous factors set out in Section 5328 of the Pennsylvania Custody Act).