We all want more people who love our children in their lives, and sometimes family isn't necessarily determined by birth. If you're a loving stepparent going through a divorce, you may be concerned about your rights, and whether you can gain custody or visitation for the stepchildren you love. If you've had a strong parental role in a child's life, you may be able to get a custody order in the event of a divorce.
Who Can Request Custody in Pennsylvania?
Under Pennsylvania law, other people close to a child can also request custody or visitation in addition to the biological or legal parents. These people include grandparents and others acting in the place of a parent, including stepparents.
Grandparents can also seek custody or visitation provided they meet certain criteria. They can seek custody if:
- They are willing and able to assume responsibility for the child, or they already have,
- They have a relationship with the child that began with the consent of the parent or parents or under court order, and
- The child is a dependent at risk because of abuse, neglect, or drug or alcohol abuse incapacity. Or if the child lived with the grandparents for at least 12 consecutive months and the parent removed the child from their home.
Individuals in loco parentis:
Anyone who stands in loco parentis for the child, which means “in place of the parent,” can also seek custody or visitation. This status happens when someone takes on raising a child without the benefit of formal adoption, and the biological parent is no longer caring for the child. A stepparent often stands in loco parentis when they take on parental obligations. The stepparent may cook and care for a child, take them to the doctor, pay school tuition, attend the child's activities and school events, and provide financial support. If a court finds that a stepparent stood in loco parentis for the child, it may award custody or visitation to a stepparent.
While the court doesn't have any strict criteria it must follow in granting a stepparent custody or visitation; the court will typically look to the:
- Length of time a stepparent acted in loco parentis,
- Level of stepparent parenting involvement,
- Independence of the stepparent parenting function, and
- Emotional dependence of the child and whether they view the stepparent as a parenting figure.
The Pennsylvania statute concerning those eligible to petition for physical or legal custody states:
§ 5324. Standing for any form of physical custody or legal custody.
The following individuals may file an action under this chapter for any form of physical custody or legal custody:
(1) A parent of the child.
(2) A person who stands in loco parentis to the child.
(3) A grandparent of the child who is not in loco parentis to the child:
(i) whose relationship with the child began either with the consent of a parent of the child or under a court order;
(ii) who assumes or is willing to assume responsibility for the child; and
(iii) when one of the following conditions is met:
(A) the child has been determined to be a dependent child under 42 Pa.C.S. Ch. 63 (relating to juvenile matters);
(B) the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity; or
If the child has, for a period of at least 12 consecutive months, resided with the grandparent, excluding brief temporary absences of the child from the home, and is removed from the home by the parents, in which case the action must be filed within six months after the removal of the child from the home.
(4) Subject to paragraph (5), an individual who establishes by clear and convincing evidence all of the following:
(i) The individual has assumed or is willing to assume responsibility for the child.
(ii) The individual has a sustained, substantial and sincere interest in the welfare of the child. In determining whether the individual meets the requirements of this subparagraph, the court may consider, among other factors, the nature, quality, extent and length of the involvement by the individual in the child's life.
(iii) Neither parent has any form of care and control of the child.
(5) Paragraph (4) shall not apply if:
(i) a dependency proceeding involving the child has been initiated or is ongoing; or
(ii) there is an order of permanent legal custody under 42 Pa.C.S. § 6351(a)(2.1) or (f.1)(3) (relating to disposition of dependent child).
Do Stepparents Have Child Support Obligations?
According to the Pennsylvania Supreme Court, stepparents may have custody rights, but they don't typically have child support obligations. In Com. Ex. Rel. McNutt v. McNutt, a trial court ordered a stepfather who it held acted in loco parentis, was responsible for child support of his wife's biological daughter. On appeal, the Pennsylvania Superior Court overturned the ruling, holding that the stepfather did not owe any financial support to the child because he had never adopted her.
However, if a stepparent seeks parental or other affirmative rights during a divorce or separation, the court may order the stepparent to pay child support. In the case of A.S. v. I.S., a stepfather petitioned for shared custody of his twin stepchildren, arguing that he acted in loco parentis. The court granted him partial physical custody and visitation. After the order, the mother filed for child support. While the trial court initially dismissed the matter, ruling that the stepfather didn't have an obligation to pay child support because he wasn't the children's biological father, the Pennsylvania Supreme Court overruled the decision. In its decision, the court held that because the stepfather affirmatively sought parental rights, and the court ruled he stood in loco parentis, he also assumed parental obligations like child support.
Stepparent Custody Rights After Adoption
If you are a stepparent who had adopted your stepchild, then you have the same legal rights and obligations as a biological parent. You can petition for physical custody, partial physical custody, or visitation. Likewise, you can also be responsible for child support.
If you're concerned about custody issues surrounding your stepchildren, if you and your spouse divorce or your spouse passes away, adopting your stepchildren may be an option. Adoption by a stepparent typically happens with the consent of the biological parents. Ideally, if you live with or are married to one biological parent, the other may willingly terminate their parental rights to allow you to adopt. However, stepparent adoption can become complicated if the noncustodial parent doesn't voluntarily agree to terminate their parental rights. In some cases, a court may involuntarily terminate a parent's rights, allowing you to adopt.
Best Interests of the Child
Setting aside whether you are a stepparent or biological parent, Pennsylvania law requires that the courts determine the custody arrangement that is in the “best interests of the child.” The family court must consider all the relevant factors and give weight to factors concerning the child's safety. See 23 Pa.C.S. § 5328(a) (2013). The court should consider:
- The party most likely to encourage and allow frequent and continuing contact between the child and the other party seeking custody or visitation,
- Any present or past abuse committed by a party or a member of their household, including any continued risk of harm to the child or another abused party,
- Whether a party or a member of their household has a conviction for certain violent crimes, sexual assault, or crimes against children,
- Which party can better provide adequate physical safety and supervision of the child,
- The parenting duties each party performs for the child,
- The child's need for stability and continuity in education, community life, and family life,
- Whether the extended family is available,
- The child's sibling relationships,
- The child's preference based on their maturity and judgment,
- Any attempts at parental alienation, except in cases of domestic violence where the parent needs reasonable safety measures to protect the child,
- The party most likely to maintain a loving, stable, consistent, and nurturing relationship with the child for the child's emotional needs,
- The party most likely to attend to the child's daily physical, emotional, developmental, educational, and special needs,
- The distance between the two parties' residences,
- Each party's availability to care for the child or to make appropriate child-care arrangements,
- The willingness and ability of both parties to cooperate and the level of conflict between them - protection from abuse isn't evidence of unwillingness to cooperate,
- Any history of drug or alcohol abuse of either party or a member of their household,
- The mental and physical condition of each party and members of their household, and
- Any other relevant factors.
The court will also make this decision gender-neutral, not giving preference to either party based on gender. See id. at § 5328(b).
Hire an Experienced Pennsylvania Family Law Attorney
If you're a stepparent concerned about your custody and visitation rights, you should consult an experienced Pennsylvania family law attorney. Attorney Joseph D. Lento has years of experience helping Pennsylvania families resolve custody and visitation issues. He can help you too. Contact the Lento Law Firm online today, or give them a call at 888-535-3686.