Berman & Asbel, LLP

What are grandparents' rights for child custody in Pa.?

In the legal world of child custody cases, we usually think of these as cases between the parents.  This is not always the case as sometimes grandparents have an interest in these matters.  In Pennsylvania, it is the general rule that the rights of parents usually are given priority over any other relatives but there are exceptions.

Pennsylvania has enacted legislation providing for grandparents' rights in several situations.  First, it is important to note the difference between partial custody and visitation.  Under the Pennsylvania law, "partial custody" is the right to take possession of a child away from the custodial parent for a certain period of time.   On the other hand, "visitation" is the right to visit a child but it does not include a right to remove a child from the custodial parent's control without permission.

Thus, a person who has a right of partial custody can take the child to their home or another location by right but a person who only has visitation may be limited by the custodial parent to seeing the child in the custodial parent's home or other location permitted by the custodial parent.

Pennsylvania gives grandparents the right to go to court to request an order granting partial custody or visitation of a grandchild in three situations:
1. If a parent of a child is deceased, the parents or grandparents of the deceased parents of the child may be granted partial custody or visitation;

2. If there is an action for divorce pending between the child's parents or the child's parents have been separated for six months or longer; or

3. If the child resided with the grandparents or great-grandparents for 12 months or longer and the parents subsequently removed the child from the home of the great-grandparents.

In all of these situations, grandparents or great-grandparents are not given access to the child automatically.  Rather, it must be determined by the court that partial custody or visitation is in the child's best interest and that it would not interfere with the parent-child relationship.

It is also possible for a grandparent or great-grandparent to seek primary physical and legal custody of a child if the grandparent or great-grandparent has:
1. genuine care and concern for the child;
2. the relationship began with the consent of the child's parent or due to a court order; and
3. for a period of 12 months or longer has assumed the role of parent for the child by providing for the child's needs or has assumed responsibility for the child under a legal determination that the child is "dependent" under the juvenile law code or who assumes or deems it necessary to assume responsibility for a child who is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or mental illness.

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 and Social Security.

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