In Pennsylvania, a parent of a minor child can file a lawsuit for physical and / or legal custody of the child. Under certain circumstances, this right also applies to grandparents and third parties who assist the child in loco parentis. Therefore, although the parent is presumed to have custody, it may forfeit if there is convincing evidence that the child’s best interests are served by granting custody to a third party.
A person in loco parentis has established a parent-like relationship with the child that is sufficient to ensure that that person has the right to continue to contact the child. This status can be transferred to third parties including, but not limited to, current or former spouses or partners, friends, siblings, and distant relatives. The Pennsylvania Supreme Court in the TB v LRM case succinctly defined how a third party can establish a parent-like relationship:
‘[I]n loco parentis’ refers to a person who puts himself in the position of a rightful parent by assuming the obligations inherent in the parental relationship without going through the formality of legal adoption. The status of in loco parentis embodies two ideas: first, the acceptance of parental status, and second, the fulfillment of parental duties. The rights and obligations arising from an in loco parentis relationship are, as the words suggest, exactly the same as those between parent and child.
567 Pa. 222 (2001).
However, because Pennsylvania tries to protect families from intrusion by third parties, this status cannot be transferred to third parties contrary to the wishes of the parents and the parent-child relationship. In other words, the birth parent must first consent or not object to the creation of a parent-child relationship in order for the third party to function as a court-recognized parent-like role. However, once a parent has expressly or implicitly consented to the creation of the parent-child relationship, then that parent’s subjective thought process, such as doubts about the third party’s obligation to be a parent or the intention to raise the child as a single parent. are all irrelevant to the question of whether the third party is in loco parentis.
This has some serious implications for parents in the face of the financial difficulties and complex relationships that arise today. Before parents move in with others or place the child in someone else’s care, they should consider whether this gives a third party the status of in loco parentis. Parents can also make the mistake of believing that a third party cannot create a parent-like role since both birth parents are actively involved in their child’s life. This is not the case in Pennsylvania, where the courts have ruled that third parties may be granted in loco parentis status even if both birth parents play an active role in the child’s life.
This gets even more complicated with grandparents. The courts have differentiated between grandparents, who are in loco parentis, and grandparents, who serve as carers and support their child in the parenting of their grandson. This has arguably increased the burden with which grandparents who apply for custody of their grandchildren have to prove, with the express or tacit consent of their child, that they have established a parent-like role. For those grandparents who cannot prove they are in loco parentis, Pennsylvania has special regulations in place to provide them with alternative means to seek custody. In order to pursue any form of physical or legal custody, grandparents who are not in train parents must demonstrate (1) that they have accepted or are willing to assume responsibility for the grandchild; and (2) one of the following conditions is met: (a) the grandchild is declared dependent in juvenile proceedings; (b) the grandchild is at risk from abuse, neglect, drug or alcohol use, or parental incapacity for work; or (c) the grandchild has lived with the grandparents for at least the last 12 consecutive months and has been removed from the home by the parents.
Grandparents who do not qualify for a physical or legal action may still have the opportunity to meddle in a custody battle if they qualify for a partial custody or visiting rights lawsuit. This reputation is further extended to great-grandparents who are not in loco parentis for the child. The partial custody or visiting rights claim is granted in the following circumstances: (1) the parents or grandparents of a deceased parent of the child; (2) if the biological parents of the child have initiated custody proceedings and do not agree whether the grandparents or great-grandparents should have custody if these grandparents or great-grandparents have a relationship with the child; or (3) the grandchild has lived with the grandparents for at least the last 12 consecutive months and has been removed from the home by the parents.
These custody rights granted to grandparents and great-grandparents can worry some parents. The good news is that Pennsylvania is not interested in violating the constitutional rights of parents in order to have a basic freedom interest in raising their children as they see fit. The courts do not grant grandparents or great-grandparents custody or visiting rights if both parents have agreed that the grandparents or great-grandparents should not have any custody.
In order to understand the complexities of modern custody disputes and the rights given to others in the best interests of the child, it is useful to seek legal advice. Whether you are a parent, grandparent, stepparent, or distant relative, you want to understand your rights in custody disputes.
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