Grandparents are a fixture in many children’s lives. You find them at their grandchildren’s sports games, talent shows, birthday parties, award ceremonies, and the like. Many times, their involvement is a given, and grandchildren don’t think twice about their presence. In fact, for some children, grandparents are like a second set of parents. But, as a family law attorney, I occasionally have clients who are not permitted to see their grandchildren. These men and women simply want a relationship, sometimes something as simple as the opportunity to take their grandchild out for a meal, but their children (the parents of their grandchildren), do not allow any contact or communication. As grandparents, what rights, if any, do you have to see your grandchildren?
Pennsylvania, like most states, allows grandparent custody rights under certain and very narrow circumstances. In no case, however, do grandparents have the right to custody when the children are in an intact family. Raising children is a fundamental, constitutional right of parents, unless the children are neglected or abused, which then gives the state the power to intervene in the children’s custody.
Grandparents and great-grandparents as well as other third parties, may qualify for primary physical custody and legal custody (the right to make major decisions affecting the child) if they stand in loco parentis to the child. That is, they have assumed the duties and obligations of a parent. A grandparent or great-grandparent who is not in loco parentis to the child, may file an action for any form of custody if the following conditions are met:
- Their relationship with the child began either with the consent of a parent of the child or under a court order;
- The grandparent 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;
- 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 twelve (12) consecutive months, resided with the grandparent, excluding brief absences 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 above situations, the grandparent custody statue also grants standing (i.e. the right to bring legal action) to grandparents and great grandparents to seek partial or supervised custody of their grandchildren when:
- either parent of the child is deceased, a parent or grandparent of the deceased parent may file an action;
- the parents of the child have commenced and continued divorce proceedings; or
- When the child has, for a period of at least twelve (12) consecutive months, resided with the grandparent or great-grandparent, excluding brief temporary absences of the child from the home, and is removed from the home by the parents, in which case an action must be filed within six (6) months after the removal of the child from the home.
Supervised custody is what was previously referred to as “visitation” in that the child does not leave the parent’s custody; rather, the grandparent “visits” at the parent’s home. For either of these forms of custody, the grandparent has to first establish that one of the three sections pertain to them.
Once the grandparent has established standing, the same custody factors that apply to parents will be used by the court in determining whether grandparents should be granted custody. Additional factors are also considered for grandparents, including whether granting custody to a grandparent would interfere with the parent-child relationship. Ultimately, the court must be convinced that grandparent contact is in the child’s best interests.
If you are a grandparent and you are wondering whether you have any rights to see your grandchild, please contact Melissa A. Iacobucci, Esquire to schedule your consultation.