GRANDPARENT STANDING UNDER THE NEW 2011 CUSTODY LAW

by Attorney Alyssa Knisely, Family Law Division Leader 

Recently, the Pennsylvania Legislature passed a new custody law that took effect on January 22, 2011. The law makes changes to the current custody law as it relates to third parties, particularly grandparents and great grandparents.

Under the former law, grandparents had the right or "standing" to petition for custody of their grandchildren if:

1. A parent is deceased;

2. The parents are divorced; or

3. The child has resided with the grandparents for 12 months or more.

The New Law provides "standing" for grandparents as follows:

1. A parent is deceased;

2. The child has resided with the grandparent for 12 months or more (if filed within 6 months of living with the grandparent); or

3. The parents are separated for a period of 6 months or more (this replaces the prior law's requirement of divorce).

FACTORS TO BE CONSIDERED UNDER THE NEW LAW

Safety of the child. The court is now required to give "weighted consideration" to the factors affecting the safety of the child. The former law focused the court's attention on abuse.

The new law provides for 16 distinct factors to be considered by a court. The former law had only 3.

Continuing contact. Which party is more likely to promote or encourage continuing contact with the other party.

Abuse. The court needs to consider the risk of harm to both the child and the abused parent. May be past or present abuse. The court then needs to consider which party will adequately protect the child.

Parenting. Which party has historically provided for the emotional, physical and social needs of the child as a way to predict their future behavior.

Stability/Continuity. This is a new explicit factor in the new law. The court had previously considered this under the "catchall" language of the prior law. Who will provide for stability and continuity in the child's life?

Family. Who is likely to foster family and sibling relationships? This was only broad catchall language in the former law.

Child preference. There is a requirement to consider the "well-reasoned" preferences of the child. There is no magic age at which the court must grant a child's request. It is only one of many factors.

Continuing Contact. This factor explicitly prohibits a court from considering attempts to turn a child against another party where safety measure are necessary to care for the child. The former law considered the attempts of one party to alienate the affections of a minor child from one parent. The court shall consider the level of cooperation between the parties and the willingness or availability to cooperate with one another. The party's efforts to protect the child or the party from abuse is not evidence of unwillingness.

Relationship with Parent. The court must now consider which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for their emotional needs. This was only a catchall in the former law.

Daily Needs. Who will likely attend to the daily emotional, physical, developmental, educational, and special needs of the child. This was only a catchall in the former law.

Proximity. The court needs to consider the proximity or closeness of the residences of the parties. Again, this was only a catchall phrase in the former.

Availability of Care. Each party's availability to care for the child or make reasonable day care arrangements. In the former law, only a broad catchall.

Drug/Alcohol Usage. A history of abuse is relevant of either a party or an immediate member of their household.

Mental/Physical Health. The party's ability to properly care for the needs of the child when dealing with their own needs is a relevant consideration.

Catchall. "Any other relevant factor." This may be religion or sexual preference, for instance.

These are but a few of the items that will need to be discussed with counsel when dealing with a grandparent's custody case.  Call Shaffer & Engle Law Offices, LLC for a consultation; toll free 1-888-236-9519 or email us at Alexis@shafferengle.com.