More Love to Go Around: The Pennsylvania Superior Court Clarifies Standing Rules Where Two Sets of Grandparents Seek Custody

October 23, 2018
Laura E. McGarry

When it comes to seeking custody of their grandchildren, grandparents face many challenges. Between navigating the impact such an effort has on a grandparent’s relationship with their own child against whom they are filing for custody and establishing standing to file for custody, grandparents in this situation face a difficult path.

Grandparents can attempt to obtain standing in any of the following three ways:

  • the grandparents stand in loco parentis to the child, meaning that they are acting in place of the parents;
  • the grandparents do not stand in loco parentis, but they have a prior relationship with the child and either the child has been deemed dependent by the court; the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity; or the child has resided with the grandparents for at least 12 months and has been recently removed from the grandparents’ home by a parent; or
  • the grandparents have a sustained, substantial and sincere interest in the child and neither parent has any form of care and control of the child.

You can read a more in-depth analysis on the third form of standing in my previous post, which can be found here.

In some cases, the path is made more difficult where two sets of grandparents are attempting to gain custody of their grandchild(ren) at the same time. Recently, the Pennsylvania Superior Court issued an opinion clarifying the provision of the custody statute that allows grandparents to seek custody when the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity and two sets of grandparents are seeking custody of a child.

In the case of G.A.P v. J.M.W., 2018 Pa. Super. 229, the child was in the custody of his maternal great-grandparents, who filed for custody of the child due to concerns for the parents’ drug use. Subsequently, the child’s paternal grandparents filed a Petition to Intervene requesting partial physical custody of the child on the basis that the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity. The trial court dismissed the paternal grandparent’s Petition to Intervene finding that the child was not currently substantially at risk because he was already in the care of his maternal great-grandparents.

On appeal, the Superior Court reversed the Order of the trial court finding that it is irrelevant for purposes of standing that the trial court previously granted standing to the maternal great-grandparents. The Superior Court further found that because the parents’ parental rights remain intact, the possibility that they may seek custody of the child in the future creates an ongoing risk to the child.

The Superior Court concluded that “[i]t would most certainly be absurd, unreasonable, and  against public interest to create a race to file a custody petition and divest one grandparent of his or her right to custody because another grandparent filed a petition first.” Instead, the Court directs that trial courts should have the opportunity to determine which grandparent can best serve the needs of the child based on the many custodial factors in the Custody Act. The trial court’s decision should not be limited based on which grandparent filed first.

If you are considering filing for custody of a grandchild or have questions about whether you meet the standing requirements, call our office to meet with one of our experienced family law attorneys who can guide you through Pennsylvania’s custody process.

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.