Expansion of Grandparents’ Standing for Child Custody in PA

June 11, 2018
Laura E. McGarry

When we think of grandparents, we often think of sweet older men and women who sneak candy from their purse to their grandsons or pull quarters out from behind the ears of the granddaughters. As a new parent, I know better than to call my mother “older,” but I am sure she will be sneaking my son candy from her purse as soon as he learns how to chew. In fact, she has already called dibs on giving him his first French fry!

Throughout our lives, many of us have been fortunate to enjoy traditional grandparent/grandchild relationships either as children running to the door when Pop Pop comes for a visit, as parents who are relieved when Nana volunteers to play with the baby to allow mom and dad to catch up on sleep, or as grandparents who look forward to spoiling their grandchildren and letting them do things Mom and Dad won’t.

However, it is becoming more and more common for grandparents to take on the non-traditional role of sole caregiver for their grandchildren. It is estimated that in the Commonwealth of Pennsylvania, there are 82,000 grandparents who act as “parent” to nearly 89,000 grandchildren. These numbers continue to increase as the opioid and heroin epidemic spreads and claims the competencies and lives of the parents who would otherwise be caring for their children. 

In addition to the general concerns involved with acting as sole caregivers, grandparents are faced with the very real concerns of how to protect the best interest of their grandchildren and ensure that they, as grandparents, have the necessary legal authority to act as a legally recognized guardian.

In 2010, changes to the Pennsylvania custody statute permitted grandparents to seek standing, or a right to file for custody of their grandchildren, in limited circumstances including when the child has been determined to be “dependent” through legal processes involving a child welfare agency; where the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity; or where the child has lived with the grandparent for a period of 12 consecutive months and is removed from the grandparent’s home by the parents. The 2010 changes to the law removed an essentially automatic right of grandparents to seek custody of their grandchildren based on a familial relationship alone.

On May 4, 2018, the Pennsylvania legislature passed Act 21, which, once it becomes effective on July 3, 2018, will re-expand grandparents’ rights to seek custody. Act 21 grants a third party, including grandparents or other family members, the right to file for any form of physical or legal custody of a child where that party has established all of the following:

  1. The individual has assumed or is willing to assume responsibility for the child;
  2. The 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
  3. Neither parent has any form of care and control of the child.

This process can become tricky if the child is involved in the child welfare system, but may be a way to prevent the child from being placed into foster care if the child’s parents are unable to care for him or her and haven’t made appropriate arrangements to authorize another person to care for their child. It is important to understand that if a family becomes involved in the child welfare system, time is of the essence when it comes to ensuring the safety and well-being of a child.

Of course, it is important to remember that even though a party may be granted “standing,” meaning the right to file for custody, that is just the first step in the process. Evidence will need to be presented to the court and the court will consider what is in the best interest of the child, taking into account the numerous factors set forth in Section 5328 of the Pennsylvania Custody Act. Although the process of filing for custody of a non-biological child can seem daunting, when it comes to the best interest of your grandchildren (or nieces, nephews, etc.) it is a small price to pay.

Laura McGarry is an attorney at Russell, Krafft and Gruber, LLP in Lancaster, Pennsylvania. She received her law degree from Penn State Law and provides legal counsel to individuals and businesses in Lancaster and surrounding communities.