We often hear the question, “Can a grandparent file for custody of a grandchild?” It may seem obvious that parents can file to obtain custody of their child or children. But the question often arises about who else is permitted to do so. On one end of the spectrum is a random stranger, who cannot even file a complaint or petition with the court asking for custody of a child. On the other end of the spectrum is a person who stands in loco parentis to the child, which means that he or she has essentially acted as the child’s parent in all regards, taking on full parenting responsibilities with the consent of the actual parents, and who is permitted to file for custody of the child. But there is a gray area in between, which is where many grandparents today stand.
Pennsylvania law specifically addresses this question by outlining when a grandparent has standing to obtain custody of a grandchild. The term “standing” refers to the ability or authority of an individual to file a document with the court asking for custody of a child. Whether someone has standing to obtain custody of a child depends on their relationship to the child and the specific circumstances of how that relationship started. The state legislature recently expanded the situations in which grandparents can be granted standing in custody cases, due in large part to the opioid epidemic, which has resulted in many grandparents stepping in to take care of their grandchildren.
To obtain primary physical custody or legal custody (i.e., decision-making authority) of a grandchild, the grandparent’s relationship with the child must have begun with the consent of one of the parents or by court order, and the grandparent must be willing to assume responsibility for the child. In addition, one of the following must be true: (1) the child has been determined to be a dependent child by the court; (2) the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity; or (3) the child has resided with the grandparent for at least 12 consecutive months and is removed from the home by the parents.
Grandparents, like any other third party, can also be granted standing to seek custody of their grandchild if neither parent has any form of care and control of the child, and the grandparent can prove a sustained, substantial and sincere interest in the welfare of the child.
If the grandparent is not seeking primary physical or legal custody of a child, and instead only wants partial physical custody or supervised physical custody of the child (sometimes referred to as visitation), then he or she must only prove either that the parent of the child has passed away, or that the grandparents’ relationship with the child began with the consent of a parent or by court order, the parents have started a custody case, and the parents do not agree about whether the grandparent should have custody.
The second step is to determine whether it is in the child’s best interest for the grandparent to have designated custody time with the child or play a part in major decisions regarding the child. This is where the court will review a list of sixteen factors, such as how each party is able to attend to the daily needs of the child, and how each party will foster the relationship between the child and the other parties. These are the same factors that the court would consider in any custody case between two parents.
It is important to understand that even if you are granted standing to file for custody, grandparents have a very high burden to meet before they are actually given custody time. This is because there is a presumption in favor of the child’s parents. But in many circumstances, there are legitimate concerns that enable grandparents to overcome that burden. And as with any custody case, it is also possible for the parties to reach an agreement, without ever needing to appear in court.
To summarize, if you are a grandparent interested in obtaining custody of your grandchild, there are two steps that you must go through. First, the court must determine that you meet the criteria for standing, which will depend on what kind of custody you are seeking. Then, if you are granted standing, the court will determine whether it is in your grandchild’s best interest for you to have custody.
Vetrano | Vetrano & Feinman Family Lawyers Can Help a Grandparent File for Custody of a Grandchild
The family law attorneys at Vetrano | Vetrano & Feinman LLC understand that the dynamics of grandparent custody can be difficult to navigate, and are able to assist you through the legal process. We can help you determine whether you meet the criteria to file for custody, and what the results of a custody action might be. If you are a grandparent who wishes to file for custody of a grandchild, or you have other child custody concerns, contact us today for a consultation with one of our family lawyers.
