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New Pa Custody Statute - Who has standing to file custody action?

Earlier this year, a major overhaul of Pennsylvania's child custody laws took effect.  A major thrust of the new statute was to codify the case law on custody into an organized statutory framework.  In this and future posts, I will highlight some of the provisions in the new Pennsylvania custody statute.

One of the first questions that come up is who has standing - the right to take a child custody case to court.  This is addressed in section 5324.  Most obviously, a parent of a child can file a custody action.  Next, a person who stands "in loco parentis" i.e. a relationship to a child in which that person has assumed a parental role and acts to carry out parental duties regarding that child.

The last category of standing to seek an order for child custody relates to grandparents who are not in loco parentis.  Such grandparents can file a custody action if the grandparent is one:

(i) whose relationship with the child began either with the consent of a parent of the child or under a court order;
(ii) who assumes or is willing to assume responsibility for the child; and
(iii) when one of the following conditions is met:
(A) the child has been determined to be a dependent child under 42 Pa.C.S. Ch. 63 (relating to juvenile matters);
(B) the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity; or
(C) 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 which case the action must be filed within six months after the removal of the child from the home.
see § 5324. Standing for any form of physical custody or legal custody, PA ST 23 Pa.C.S.A. § 5324

When a custody action is filed, the party filing the action must, under the Pennsylvania Rules of Civil Procedure, state in the complaint the factual basis for why they have standing under one of those categories.  In the case of a grandparent who does not have an in loco parentis relationship with the child, the list of facts which must be stated will be more involved to show that the person meets the criteria listed above.

In other cases where a grandparent or great-grandparent might seek partial physical custody (the right to have physical custody of a child at certain times - what is commonly referred to as "visitation"), such grandparent or great-grandparent can file an action under one of these situations:

(1) where the parent of the child is deceased, a parent or grandparent of the deceased parent may file an action under this section;
(2) where the parents of the child have been separated for a period of at least six months or have commenced and continued a proceeding to dissolve their marriage; or
(3) when the child has, for a period of at least 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, an action must be filed within six months after the removal of the child from the home.
(§ 5325. Standing for partial physical custody and supervised physical custody, PA ST 23 Pa.C.S.A. § 5325)

I will address other sections of the new custody law in future posts.

Readers should not solely rely on this note but should consult with a competent attorney licensed in their state. You can also find more information in my firm's websites on Family Law and Wills and Estate Planning and Administration.

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