New Grandparent and Third-Party Custody Law | High Swartz
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New Grandparent and Third-Party Custody Law

August 1, 2018

By Brittany M. Yurchyk

grandparent custody

As of July 2018 a new law regarding grandparent and third party child rights took full effect in the Commonwealth of Pennsylvania.  Act 21 of 2018 expands the categories of people able to request custody of a child through the courts.  Act 21 also clarifies when grandparents can seek custody of their grandchildren.

The full text of Act 21 of 2018 can be found HERE.  Below is a summary of how the act has changed third party and grandparent custody law in Pennsylvania:

Third Party Custody Rights

Since 2011, Pennsylvania law has provided for three specific categories of people who could file for any form of child custody:

(1) a parent;

(2) a grandparent or great-grandparent (if very specific conditions are met); and

(3) a person standing in loco parentis to the child.

Act 21 of 2018 adds a fourth category of people who can file for any form of child custody:

(4) Any individual (not just a family member) so long as the child is not part of a dependency proceeding and the following three criteria are proven to the court: (a) the third party individual has assumed or is willing to assume responsibility for the child; (b) the third party 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 (c) neither parent has any form of care and control over the child.

So, why the change?  As shown by recent statistics, the opioid epidemic has hit Pennsylvania hard, creating new trends in family structure.  Prior to July 3, 2018, if a child’s parents became suddenly unavailable due to death or otherwise, only a grandparent, or a person already historically assuming a parenting role, could file for custody.  Now, under Pennsylvania’s new law, other relatives or willing third parties may file for custody so long as they have a sustained, substantial and sincere interest.

Grandparent Partial Custody (aka visitation)

Aside from the  right to file for primary physical custody, Pennsylvania law also permits qualifying grandparents the right to request partial physical custody (aka visitation).

The three circumstances where a grandparent can request partial physical custody are:

  • If the grandchild’s parent is deceased;
  • If the grandchild lived with the grandparents for twelve consecutive months and the grandparents filed their action within six months of when the grandchild was removed from their home; and
  • Where the grandparents’ relationship with the child began either with the consent of a parent or under a court order AND where the parents of the child have commenced a proceeding for custody AND the parents do not agree on whether the grandparents should have custody.

Section (3) is totally new with the enactment of Act 21.  Under  Pennsylvania’s old law, section (3) allowed grandparents to file for partial custody of their grandchildren when the grandchild’s parents had been separated for a period of at least six months or had commenced and continued a proceeding to dissolve their marriage

So, why the change?  Let’s say for example that mom and dad spent the past eight years keeping creepy, estranged Grandpa Joe away from their impressionable little Billy.  Under Pennsylvania’s old law, if Billy’s parents were to divorce, it all of a sudden provided creepy Grandpa Joe with the ability to file for partial custody, even if both parents remained adamantly opposed to creepy Grandpa Joe’s presence in Billy’s life.  Seeing this error,  the Pennsylvania Superior Court said that not only was this a bad idea, it was down-right unconstitutional (because it interfered with a parent’s constitutional right to rear their children).   Under the new law, Grandpa Joe would have already have to had a relationship with Little Billy before the  parents’ ‘divorce, and at least one of the parents have to be in favor of Billy and Grandpa Joe’s continued relationship.

Of course, it is important to remember that even though a party may be granted “standing,” meaning the right to file for custody, that’s only the first step.  A grandparent or third party must present evidence, enter testimony and convince the tribunal that awarding the grandparent custody is in the grandchild’s “best interest” (according to the numerous factors set forth in Section 5328 of the Pennsylvania Custody Act).

If you have questions regarding grandparent custody, please contact Brittany M. Yurchyk at 610-275-0700 or byurchyk@highswartz.com. Our family law attorneys have a thorough understanding of the new custody law and how this law could effect your family.  Contact us so that we can help you achieve your custody goals.

The information above is general: we recommend that you consult an attorney regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation.

 

About the Author: Brittany Yurchyk

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