The U.S. 2010 Census revealed that in Pennsylvania, 239,819 children under the age of 18 live in homes with grandparents or other relatives (this is 8.6% of the children in Pennsylvania.) However, in the majority of these households, grandparents do not have a formal legal relationship with their grandchildren. This article explores legal options for grandparents raising grandchildren and explores the legal challenges a grandparent may face.
Why should grandparents seek a formal legal relationship with grandchildren?
When a grandparent takes on the responsibility of raising grandchildren either temporarily or indefinitely, road blocks may arise where a formal legal relationship has not been established. Most commonly these road blocks involve, but are not limited to, enrollment in school and medical decisions. However, seeking guardianship or custody can also provide more stability for the child and prevent a constant back-and-forth between grandparent and biological parent.
Enrollment in School
Generally, only a custodial parent or guardian may enroll a child in school. However, there are two main exceptions to this general rule:
(1) The McKinney Vento Act: This Federal law provides that a child who is not in the physical custody of a parent or guardian and who qualifies as an “unaccompanied homeless youth” under the Act may enroll herself without the documents usually required for enrollment. This includes children who have run away from home, been displaced from their home, or otherwise separated from their parents or guardians for any other reason.
(2) Completion of “1302 Form.” (24 P.S. § 13-1302): When a child is living with someone other than a parent and the person caring for the child does not have custody or legal guardianship of the child, the child can be enrolled in school without the production of a custody or guardianship order where the following conditions are met: (1) the person that is caring for the child is doing so without personal compensation; and (2) a sworn and notarized statement is submitted which indicates that the signer is a resident of the school district, is supporting the child without receiving personal compensation, that the child is living with the resident continuously and not just for the school year, and that the resident will accept all responsibilities relating to the child’s schooling.
Medical Decision Making
Another concerning area for grandparents raising a grandchild where a formal legal relationship has not been obtained is medical decision making. There are situations which allow a minor to consent to their own medical care. For example, the Minors’ Consent Act allows any minor to consent to testing and treatment for what are known as “reportable diseases” under the Disease Prevention and Control Law of 1955 (35 P.S. § 10103). Also, minors can obtain contraception (birth control) without parental consent or involvement (42 U.S.C. § 1396a(10)(A)). There are other situations that a minor can consent to their own medical treatment; however, generally a custodial parent or guardian must consent to medical treatment. Therefore, where a child is being cared for by a grandparent without a custody or guardianship order, the grandparent will not be allowed to consent to medical treatment for the minor unless the child’s legal guardian or custodian has signed a Medical Consent (11 Pa Cons. Stat. § 2511-2513). This law allows a child’s guardian or custodian to permit the grandparent or other family member or friend to make medical decisions on behalf of the child (this is similar to a power of attorney).
Where the grandparent does not have guardianship or custody and where a Medical Consent has not been signed by the custodial parents, the minor may still receive medical, dental and health services without consent of a parent or legal guardian when, in the physician’s judgement, an attempt to secure consent would result in delay of treatment which would increase the risk to the minor’s life or health (35 Pa. Stat. Ann. § 10104 (West)).
What are the types of formal legal relationships a grandparent can seek?
Custody
For any person in Pennsylvania to request custody of a child, that person must first have “standing” to file a petition. Pennsylvania law recognizes two basic custody categories:
(1) Physical custody involves issues including a child’s residential situation and parenting time (or visitation) with the non-custodial parent. A number of different types of physical custody arrangements are possible pursuant to Pennsylvania law.
(2) Legal custody centers on the ability of a parent to make major life decisions on behalf of a minor child.
Pennsylvania allows grandparent custody rights under certain circumstances. Grandparents may qualify for primary physical and legal custody if they stand in loco parentis to the child (they have assumed the duties and obligations of a parent).
If you are caring for a grandchild who is safe and happy in your care, and the biological parent(s) are content with that arrangement, carefully consider the probability of success before filing an action to seek custody. Filing for custody can irreparably alienate the biological parent(s), and if you fail to prevail in your case, it may negatively affect your relationship with your grandchildren. If you need the authority to undertake parental activities on behalf of your grandchildren, you could contact a lawyer to discuss becoming a legal guardian for the children.
If the grandparent is not in loco parentis, then one of the following conditions has to be met:
(1) Child has been determined to be a dependent;
(2) Child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity; or
(3) The child has for a period of at least 12 consecutive months resided with the grandparent, excluding brief 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.
A grandparent may seek partial physical custody and supervised physical custody (i.e. visitation):
(1) Where the parent of the child is deceased;
(2) Where the parents of the child have filed for divorce; and
(3) When 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 those situations, a custody action must be filed within six months after the removal of the child from the home.
Guardianship
In most cases, a child’s legal guardian is his or her parent, and Pennsylvania guardianship laws do not allow any court hearings to create this legal relationship. However, in some cases, a parent is not available to take care of a child.
(1) the death of a parent;
(2) severely debilitating illness;
(3) incarcerated for a long time;
(4) missing; or
(5) have serious drug, alcohol, or mental problems.
Two classes of guardianship of minors are recognized in Pennsylvania:
(1) Guardian of a minor’s person: The guardian of the minor’s person is invested with the care of the minor’s person and, thus, is entitled to the care and custody of the minor but does not generally have the power to deal with or exercise control over the minor’s estate; and
(2) Guardian of a minor’s estate: The guardian of the minor’s estate is entrusted with the control of the minor’s property and has powers, duties, and liabilities almost identical with those of a trustee.
A petition for the appointment of a guardian for the estate or person of a minor must be filed by the minor, if over fourteen years of age and, if under such age, by his parent or parents, the person with whom he resides or by whom he is maintained or by any person as next friend of the minor. This is different than custody as there is no requirement that the petitioner have “standing.” Where the petition is not filed by the minor’s parents, the court will require the parents to consent to the petition. If the parents do not consent to the petition, the court will require a showing as to why the parents have not consented and to explain the necessity of the guardianship for the minor.
In cases where a parent is able to suggest a guardian to the court, the parent’s choice will be weighted heavily according to Pennsylvania guardianship laws. This includes a nomination of a guardian through the parents’ Last Will and Testament as well as a nomination through the Standby Guardianship law (23 PA Cons. Stat. §§ 5601-5612). Typically, a parent’s preferred guardian will only be declined by a judge if the person chosen is unwilling or unable to accept the responsibilities of guardianship.
The guardian of the person stands in loco parentis to the minor, being vested with the general power of control and having a duty to supply the care and discipline necessary for the child’s development in accordance with the guardian’s discretion and judgment. The guardian’s right to custody of the minor child is not absolute, however, and is always subject to the control and review of the court.
What is the difference between Guardianship and Custody?
Guardianship and custody are two completely different issues. Guardianship is decided by the Orphans’ Court Division and Custody is decided by the Family Court Division. In both guardianship and custody, the court evaluates the best interest of the child. A primary and significant difference between guardianship and custody is that the petitioner for custody must have standing to petition. The petitioner for guardianship can be the child if over the age of fourteen (14), and the court will require that the parents’ consent to the guardianship or the petition must show why they are not sending. Additionally, a biological parent can designate someone to be a guardian.
The laws in Pennsylvania relating to Grandparents’ and their grandchildren are constantly changing. Please consult with OWM’s Family Law and Elder Law Attorneys regarding this issue and additional questions.
— Written by Rebecca A. Hobbs, Esquire, CELA*
*Certified as an Elder Law Attorney by the National Elder Law Foundation as authorized by the Pennsylvania Supreme Court.