Grandparents are often a critical part of a child's life. It takes a village to raise a child, and grandparents are one of the most important people in that village. At a minimum, grandparents provide love and a connection to the past. A child has the best ability to become a healthy adult if the entire community, and especially loving grandparents, play an active role in contributing to the rearing of the child.
Sometimes however, due to a family's circumstances, grandparents who were a regular loving part of a child's life are no longer able to play the same part in a grandchild's life as was the case before. For there to be a strong grandparent-grandchild relationship, the child has to: 1) to feel a sense of emotional closeness to their grandparent; 2) have regular contact with their grandparent; and 3) view the grandparent as a source of social support. When this bond, due to a family's circumstances, is interfered with either unintentionally or intentionally, the grandparent's and grandchild's well-being will be negatively affected, and also that of other family members. In these situations, grandparents may have to ask Family Court to intervene on their behalf so that they can continue to be a part of their grandchildren's lives.
A Change in Pennsylvania Family Law
Just as a family's circumstances can change over time, Pennsylvania Family Law can also change, and the custodial rights that had previously been available to grandparents is no exception. When major modifications to the Pennsylvania Rules of Civil Procedure concerning this area of the law went into effect, the law regarding what rights grandparents have with respect to custody and visitation of their grandchildren significantly changed. Although these changes took effect in September 2013, grandparents today may be surprised to learn that the more expansive rights they once had regarding potential custody or visitation of their grandchildren are no longer the case.
Prior to the change in law, grandparents not just in Philadelphia, Montgomery, Delaware, Bucks, and Chester County, but in all of Pennsylvania, had what was known as automatic "standing," which meant an automatic right to petition Family Court for custodial rights of their grandchildren. A grandparent's standing prior to the change in law was based on their familial relationship alone (that of being the grandparent), and grandparents could therefore file a petition for physical and/or legal custody of a grandchild. A grandparent still had to demonstrate to Family Court that:
(1) they had genuine care and concern for the child;
(2) their relationship with the grandchild began with the consent of the child's parent or by court order; and
(3) for 12 months, the grandparent had assumed the role and responsibilities of the grandchild's parent; or assumed responsibility for the grandchild if determined to be a dependent child; or assumed responsibility for the grandchild because he/she was substantially at risk due to parental abuse, neglect, drug or alcohol abuse or mental illness.
The Current Law Regarding Grandparents' Custody Rights
The Pennsylvania grandparent custody and visitation statute was initially amended in November 2010, and these amendments thereafter required that the prior rules regarding grandparents' custody of grandchildren be modified as noted above. From the perspective of loving and concerned grandparents, the change has not been in their favor.
Under current Pennsylvania Family Law, the custodial rights available to grandparents is more limited and no longer based on the familial relationship alone. As the current law stands, a grandparent can file for custody only if they are in “loco parentis” to the child; in other words, a person who with the consent of the parent is acting as a parent to the child, or, can prove that:
(i) the grandparent's relationship with the child began either with the parent's consent or by court order;
(ii) the grandparent assumes or is willing to assume responsibility for the child; and
(iii) one of the following:
(A) the child has been determined to be a dependent child; or
(B) the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse, or incapacity;or
(C) for a period of at least 12 consecutive months, the child has resided with the grandparent.
The new law does allow for brief temporary absences of the child from the grandparent's home. Sometimes it is difficult for a grandparent to satisfy the condition that a grandchild have continuously resided with them for 12 consecutive months. It will be a question for Family Court as to what will be deemed a "temporary" absence as opposed to an absence that would invalidate a grandparent's rights to file for custody.
Additional Burdens Placed on Grandparents Seeking Custody of Grandchildren
As is clear from the change in statutory language, grandparents' (and great-grandparents') rights have been significantly limited. The language that allowed a grandparent or great-grandparent to ask Family Court for custody or visitation of their grandchildren or great-grandchildren if the child lived with the the grandparent or great-grandparent for a period of 12 months or more and was thereafter removed from the grandparent's or great-grandparent's home by the parents is no longer applicable. As a result, grandparents and great-grandparents can no longer petition Family Court for custody or visitation on this basis.
Additional burdens were also placed on grandparents and great-grandparents who are trying to obtain custody or visitation. Specifically, in addition to living with the grandparents or great-grandparents for a 12 month period, the grandparents or great-grandparents must demonstrate to Family Court the following:
(1) proof that visitation rights to the grandparents or great-grandparents would be in the best interest of the child; and
(2) that the visitation rights to the grandparents or great-grandparents would not interfere with the parent-child relationship.
Grandparents' and great-grandparents' right to partial custody and visitation has also been affected by the change in Pennsylvania Family Law. Since the change, a grandparent or great-grandparent may ask Family Court for partial custody or visitation of a grandchild or great-grandchild when a following condition has been met:
(1) his or her child is deceased; or
(2) when the parents of the child have been separated for a period of at least 6 months or have commenced and continued divorce proceedings; or
(3) the child has, for a period of at least 12 consecutive months, resided with the grandparent or great-grandparent and has been removed from his or her home by the child's parents.
As noted, sometimes it is difficult for a grandparent or great-grandparent to satisfy the condition that a grandchild or great-grandchild have continuously resided with them for 12 consecutive months. Pennsylvania Family Law does allow for brief temporary absences however. As above, it will be a question for Family Court as to what will be deemed a "temporary" absence as opposed to an absence that would invalidate a grandparent's or great-grandparent's right under the law.
Pennsylvania family law also specifies that a grandparent or great-grandparent must file for custody within 6 months of removal of the child if if the child is residing with the grandparent or great-grandparent and is removed by the child's parent. Although the "best interest of the child" is the guiding factor Pennsylvania custody law, in an unusual change, the law no longer requires whether visitation would affect a child's relationship with their parent (although Family Court will always consider the "best interest" when deciding whether to grant a petition).
A Change in Law Will Not Change How Important a Loving Grandparent is to a Grandchild
Grandparents and great-grandparents in Pennsylvania will always be a major part of a child's life. With the limitations on grandparents' and great-grandparents' rights to custody and visitation in Pennsylvania however, grandparents and great-grandparents must understand what conditions must be met in order to ask Family Court to intervene on their behalf as necessary when family circumstances require.