Grandparent Rights to Custody and Visitation in PA

When Act 21 passed into law in Pennsylvania in 2018, it changed how and when grandparents can seek custody of their grandchildren.

PA Act 21 expanded grandparent rights in PA and third party custody categories. It also added to those able to request child custody through its courts. Below is a summary of how the act has changed third party custody and grandparent rights in Pennsylvania. If you have further questions, contact a custody lawyer near you.

Third Party Custody Rights

Since 2011, Pennsylvania law has provided for three specific categories of people who could file for any form of custody:

1. a parent;
2. a grandparent or great-grandparent (if very specific conditions are met); and
3. a person standing in loco parentis to the child.

In 2018, PA Act 21 added a fourth category of people who can file for any form of custody: Any individual (not just a family member) so long as the child is not part of a dependency proceeding and the following criteria are proven to the court:

1. the third party individual has assumed or is willing to assume responsibility for the child
2. the third party individual has a sustained, substantial and sincere interest in the welfare of the child, which is based on the nature, quality, extent and length of the involvement by the individual in the child’s life
3. neither parent has any form of care and control over the child

So, why the change?

As shown by recent statistics, the opioid epidemic has hit Pennsylvania hard, creating new trends in family structure.  Prior to July 3, 2018, if a child’s parents became suddenly unavailable due to death or otherwise, only a grandparent, or a person already historically assuming a parenting role, could file for custody.  Now, under Pennsylvania’s new law, other relatives or willing third parties may file for child custody so long as they have a sustained, substantial and sincere interest.

Grandparent Rights in PA for Partial Custody (aka Grandparent Visitation)

Aside from the right to file for primary physical custody, the law also permits qualifying grandparents rights in PA to request partial physical custody (aka visitation).

Grandparent rights in PA present three circumstances where a grandparent can request partial physical custody:

1. If the grandchild’s parent is deceased;
2. If the grandchild lived with the grandparents for twelve consecutive months and the grandparents filed their action within six months of when the grandchild was removed from their home; and
3. Where the grandparents’ relationship with the child began either with the consent of a parent or under a court order AND where the parents of the child have commenced a proceeding for custody AND the parents do not agree on whether the grandparents should have custody.

The third circumstance (section 3) listed above is totally new with the enactment of Act 21. Under the old law, section (3) allowed grandparents rights in Pennsylvania to file for partial custody of their grandchildren when the grandchild’s parents had been separated for a period of at least six months or had commenced and continued a proceeding to dissolve their marriage

So, why the change?

Let’s say for example that mom and dad spent the past eight years keeping creepy, estranged Grandpa Joe away from their impressionable little Billy.

Under old law relating to grandparent rights in PA, if Billy’s parents were to divorce, it all of a sudden provided creepy Grandpa Joe with the ability to file for partial custody, even if both parents remained adamantly opposed to creepy Grandpa Joe’s presence in Billy’s life.

Seeing this error, the Pennsylvania Superior Court said that not only was this a bad idea, it was down-right unconstitutional (because it interfered with a parent’s constitutional right to rear their children). Under the new grandparent rights law in PA, Grandpa Joe would have already have to had a relationship with Little Billy before the  parents’ ‘divorce, and at least one of the parents have to be in favor of Billy and Grandpa Joe’s continued relationship.

Of course, it is important to remember that even though a party may be granted “standing,” meaning the right to file for custody, that’s only the first step.  With respect to grandparent rights in PA, a grandparent or third party must present evidence, enter testimony and convince the tribunal that awarding the grandparent custody is in the grandchild’s “best interest” (according to the numerous factors set forth in Section 5328 of the Pennsylvania Custody Act).

Contact a custody lawyer about grandparent rights in PA

Our family law attorneys have a thorough understanding of custody laws and grandparent rights in PA and how they could effect your family.  Contact our local law firm with offices in Doylestown and Norristown, PA so that we can help you achieve your goals.

The information above is general: we recommend that you consult a child custody lawyer regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation.