Sometimes people, other than parents, are faced with the decision of whether they should seek custody of a child. Pennsylvania courts generally affirm that parents (natural or adoptive) have the legal right to care for and determine what is best for their child. Therefore, parents in custody disputes are favored over anyone who is not a parent. It certain situations, however, it is possible to overcome this presumption in favor of the parent. Doing so involves two distinct steps.
First, “standing,” which is a person’s right to bring a claim before the court, must be established. Without standing, a person cannot request any form of custody. Adoptive or natural parents automatically have standing, but a third party must meet certain criteria in order to qualify for standing.
Of all third parties, Grandparents have the easiest time qualifying for standing. A grandparent of the child can qualify for standing to having primary physical and legal custody of a child if:
- The Grandparent’s relationship with the child began either with the consent of a parent of the child or under a court order;
- The Grandparent has assumed or is willing to assume responsibility for the child; and
- When one of the following conditions is met:
- the child has been determined to be a “dependent” child in juvenile court
- the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity; or
- 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.
In addition to the situations discussed above which give grandparents a right to file for primary physical custody, Pennsylvania law also permits grandparents the right to request partial physical custody (aka visitation) in the following three circumstances:
- If the grandchild’s parent is deceased; or
- If the grand child 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; or
- 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.
In loco parentis Standing
Any person (relative, nonrelative, step-parent, etc.) who is “in loco parentis” to the child has standing to file for any form of custody. The term in loco parentis literally means “in the place of a parent.” There are two components to in loco parentis standing: (1) the person who is in loco parentis must have assumed parental status and (2) the parents must have been discharged his or her parental duties. Generally speaking, in loco parentis standing cannot be achieved without the consent and knowledge of, and in disregard of, the wishes of a parent.
Catch-All Third Party Standing
Even if a third party is not a grandparent nor a person who is in loco parentis, there is a catch-all provision under which a nonparent can qualify for standing. Under Pennsylvania law, any individual (not just family members) so long as the child is not part of a dependency proceeding and the following three criteria are proven to court: (a) the third party individual has assumed or is willing to assume responsibility for the child; (b) 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; and (c) neither parent has any form of care and control of the child.
Best Interest Analysis
Establishing “standing” is only the first hurdle a third party must overcome in order to gain custody of a child. If and when standing is established, the third party must next prove to the court that it is in the child’s best interest for them to be granted custody. In doing so, the court will then consider whether or not the grandparent should be awarded custody of the child by analyzing the sixteen custody factors set forth in 23 Pa. C.S.A. § 5328(a).
In cases in which standing was established because the child’s parents have separated or a parent is deceased, the court must also consider the amount of personal contact between the grandparent and the child prior to filing the action. In cases in which standing has been established because the child has resided with grandparents for more than 12 months, the court must take into account whether awarding partial physical custody to the grandparents would interfere with parent-child relationship.
What should you do if you are a third party and would like to seek custody of a child?
As the above information is general, and not specific to your circumstances, we recommend that you consult with a lawyer. The above is not meant to be legal advice or a substitute for legal representation.