Jump to Navigation

Grandparent Custody Rights Under the New PA 2011 Law

GRANDPARENT STANDING UNDER THE NEW 2011 CUSTODY LAW

by Attorney Nichole A. Collins, 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.

16 Comments

My granddaughter has been living with me for 10 years she is now 13. Now her dad wants some kind of custody because she doesn't always want to visit. I have for the past 5 years had legal custody of her. Now he is taking me to court and my granddaugher is scared she will have to go live with him what do you think will happen? We will be using philidelphia courts.

he could possibly get visitations. you could request supervised visitation. Someone from the state will either supervise him while he has the visits or a family member may step forward and be the "supervisor" he most likely wont get any sort of custody.

My Grand daughter is 4 but my son and daughter in law are now separated. But my grand daughter is NOT being well taken care even prior to this seperation> The house is disgusting. shes sleeping in her own urine because she started peeing on herself in bed. Her private part smells like a grown womans private and her panties are always dirty. If i take pictures of all this can I take custody of her?

ihave been deiniaed the righgt to see my great grand daughter. her father has keep her after her weekly visit because he mother is in a mental health facility.she had costotial care with her motherwho she lives with. the mother and father are not married.what should i do ?

I would like to get at least visit with my granddaughter. She is 3 years old. I have watched her at least 2 times a week ever since she was born. My son and his wife is on drugs. His wife left him one day, and he took all kinds of drugs, got drunk, wrecked his car, got arrested, spit on a cop. He has gotten out of jail. I thought I was helping him get better, by giving him my credit card to get help from a doctor. He had ran my credit card up $2000.00 and is now fighting with me. He will not let me see my granddaughter or talk to her at all. She is my life and I miss her very much. My son has charges still pending. I do believe that him and his wife is still on drugs. I had found to bags of needles that ways laying in their closet on the floor where my granddaughter could have gotten a hold of them. The cops took the bags of needles but I don't think they can give my son any charges. They both were stealing the needles and drugs from the nursing home that they work in. My son has been fired, but she is still working. All I am asking for is visitation rights to see my granddaughter. I need to know if she is okay and not. I am scared that she may get into the drugs that they are taking. I had went to check on my son, (before he started fighting with me) and I found my 3 year old granddaughter running around the house with just a t-shirt and socks on. The front & back door of the house was open and my son was passed out or druged out on the couch. I was afraid that she might wonder outside and get on the road and get hit by a car or kidnapped. I did call children and youth on them, but they were all ready being investigated by children and youth. My son and his wife had to do drug test and they were bragging to me that they were passing the drug test, because they were taking these bath salts and the children and youth was not testing for those drugs. Please help me, I am so scared something is going to happen to my granddaughter.

I would like to get at least visit with my granddaughter. She is 3 years old. I have watched her at least 2 times a week ever since she was born. My son and his wife is on drugs. His wife left him one day, and he took all kinds of drugs, got drunk, wrecked his car, got arrested, spit on a cop. He has gotten out of jail. I thought I was helping him get better, by giving him my credit card to get help from a doctor. He had ran my credit card up $2000.00 and is now fighting with me. He will not let me see my granddaughter or talk to her at all. She is my life and I miss her very much. My son has charges still pending. I do believe that him and his wife is still on drugs. I had found to bags of needles that ways laying in their closet on the floor where my granddaughter could have gotten a hold of them. The cops took the bags of needles but I don't think they can give my son any charges. They both were stealing the needles and drugs from the nursing home that they work in. My son has been fired, but she is still working. All I am asking for is visitation rights to see my granddaughter. I need to know if she is okay and not. I am scared that she may get into the drugs that they are taking. I had went to check on my son, (before he started fighting with me) and I found my 3 year old granddaughter running around the house with just a t-shirt and socks on. The front & back door of the house was open and my son was passed out or druged out on the couch. I was afraid that she might wonder outside and get on the road and get hit by a car or kidnapped. I did call children and youth on them, but they were all ready being investigated by children and youth. My son and his wife had to do drug test and they were bragging to me that they were passing the drug test, because they were taking these bath salts and the children and youth was not testing for those drugs. Please help me, I am so scared something is going to happen to my granddaughter.

My son's wife cheated on him for 8-10mos.and the have only been married 3 1/2 yrs. Anyway in her eyes he was to just get over it, but he made a comment and it pissed her off, she left with their son now 41/2 yrs. Old. She printed some visitation off a website, he signed (she states) so neither one leaves w/him. Any way it's a very selfish set up, he gets him for 6 hrs. A wk. 2 nights for 3 hrs. And every other wknd. So on his off wknd. He only sees his little boy for 6 flipping hrs????? This is so not right!!! On his wknd he has him he comes mon 5:30-8:30 then thursday the same, turns around comes back fri 5:30 -til 4:30 sun. Then comes back mon night 5:30-8:30!! I feel he should have him from thurs 5:30-til Tues morn, on his weekend!! And overnight mon & thurs on his off wknd. This child sleeps in his bed 4 times a month!! Mommy can't supply him a stable home, they r living w/her daddy & stepmom!! His daddy pays "ALL" THEIR BILLS ALONE!! BUT HAS HIS OWN PLACE!! and this setup of hers is killing him, what can we do to make him see he needs,to get custody, and professional advice?? I'm sick of seeing her use & hurt him, afterall she committed adultery, he's still being faithful, but i bet she ain't,
Someone tell me what to do!! I miss my grandson!! 2 wknds a month is wrong, when we did "EVERYTHING" Including helping with their bills, her family never gave a penny, we have thousands in them, and we use to have our lil grandson "ALL THE TIME"!!


My son is two and a half. His grandfather (My ex's father) has sued me for his grandparent rights. He is determined to turn my son against me. Because I am a lesbian. He also smokes marijuana. He is also a single 45 year old man. It isn't fair that parents don't have a say as to who has access to their children. Sometimes it's impossible to prove that the person is bad. My ex owes me over 5000 in child support. He keeps going to jail bec he is a loser. His family is wealthy, im a 20 year old single mother. Sadly, I know he will use his lawyer to attack me and continue to take me to court until the end result satisfies him.

My daughter when she turned 18 pursued a relationship with a 25 year old physically abusive as well as substance abuse. He has been arrested for simple assault and she has had to get a temp PFA on him which she later dropped. She always goes back. She is now pregnant and will be giving birth in the next 2 months. She has admitted to us that they fight (hit each other) and with his substance abuse and living arrangements we are fearful for our grand child's safety and expect that this kind of action will just continue to escalate and we want to know if we would have a reasonable chance to get custody of the child until perhaps she gets her life together.

My daughters mother and i have been separated for over 3 years now. The mother lives on the west coast and have maintained contact with her parents. By verbal agreement i have allowed the grandmother to see my daughter friday night after school until saturday night at agreed upon time every other weekend, weekends i work. Lately shes been threatening with grandparents rights when i dont permit "extra time", being days my daughter has off school and is being attended to by my step-mother whom i live with. After a number of threats and arguments i am on brink of cutting off visitation, there is a lot of tension between the grandmother and i. I personally believe she is overstepping her bounds and trying to play replacement mother since her daughter left my daughters life. I have no idea what to expect if it goes through the court system. Would she get more visitation than what has been agreed upon?

Brock- First, I apologize for not responding sooner to your inquiry. Generally, grandparents have the right to establish a custody order when the parents are either divorced, separated or one has died. In your instance, the maternal grandparents have a right to file a custody action in court to seek a grandparent custodial time. I would doubt that they would be able to obtain more time than they currently possess under your verbal agreement. As the natural parent, you are permitted to say "no" to their requests for additional time. It's what's in the "best interests" of the child that matter.

Regards,
Alyssa Knisely

S.H.- First, my apologies for not responding sooner. As a grandparent, you have a right to file for custody of the child (where the child may be in danger of harm). In this instance, if you feel that the child is without proper parental care while in the custody of mother, you may wish to discuss this with both mom and dad and gain their consent to care for the child for the meantime. A custody action is often times greeted with contempt if you don't provide the parents with notice of what you are doing and gain some 'agreement' that it's in the best interests of the child to place the child with you. Most times if this is the case, a custody stipulation could be entered by the court as an order without the need for protracted and costly litigation among the parties.

I would recommend discussing this option with both mom and dad. I think it's important also for you to let mom and dad know that you are NOT attempting to take their rights away to the child. Most parents are often fearful of this.

Regards,
Alyssa Knisely

I have a bipolar mother who was a big part of myne and my kids lives til she stopped taking her meds....I haven't spoken to my mother since Xmas....she has quit her job...is bouncing from house to house....homeless shelters...she was in a mental facility for a little while....and now I get this phone call that she's going to family court to sue me for grandparents rights....please tell me she doesn't have a leg to stand on

Christine- There is no such thing as "never" in life. No guarantees. However, a grandparent has limited statutory rights to seek partial physical custody or visition. First, you must be divorce, separated, or your former spouse of the children is deceased. Second, if none of number one exist, the grandmother must have been in a position of in loco parentis (place of a parent) for 12 months or more. If neither of the former exist, she has no legal right to even seek grandparent custody or visitation.

Next, assuming she has standing, she also will need to show it's in the children's best interests to have an ongoing relationship with her. Usually that's not a hard sell to the court. However, if there are severe mental health/illness issues or homelessness concerns, she may have a difficult time. She may be required to undergo a drug & alcohol and MH/MR evaluation, or sign a release so your attorney may acquire her health records. The court will want to know that her current situation has stabilized and she's not a threat or health risk to the children.

If you'd like to discuss your case a bit more offline, that's fine. Call us at (717) 545-3032. Ask for Jeff or Alyssa.

My fiance, myself and my son lived with my fiancee's father for approximately 12 months. We then moved to my aunts house to get away from drama. My fiancee's father is a narcissist and is a compulsive pathological liar. While residing with the paternal (grandfather), he did not support us in any way financially. He paid his rent, utilities and we pain our car payments, cell phones, bought our groceries and provided for our son. He let us live there because my fiancee' didn't want to move in with my parents. I am concerned because the paternal grandfather has threatened to take my fiancee' and myself for grandparents rights if we try to keep our son from him. We don't want to keep him from our son, however, if he is going to coninuously lie then he will not see him. I will protect my son from being emotionally destroyed like his father is from growing up with him. Can and if the paternal grandfather tries will he have a leg to stand on, and will he get granted rights to see my son.

Leave a comment
Comment Information
Subscribe To This Blog's Feed

Avvo | Expert Advice When You Need It Most
Click Avvo logo to view Jeff Engles' Avvo profile

View Elisabeth Pasqualini's Avvo profile View my profile on avvo
View Alexis Miloszewski's Avvo profile View my profile on avvo

Privacy Policy | Business Development Solutions by FindLaw, a Thomson Reuters business.