The Mazza Law Group, P.C.
2790 W. College Ave., Suite 800
State College, PA 16801 March 10, 2016
(814) 237-6255

Grandparent Custody Act: Supreme Court rules part unconstitutional

The most important, first step is to learn whether you have “standing” to request grandparent custody.  “Standing” means the legal right to ask the court for custody. Informally, think of it as “getting your foot in the door” to get “a bite at the apple.”   It is only possible to seek custody of grandchildren under certain circumstances, which are outlined in 23 Pa.C.S.5324. In general, a grandparent must be taking care of the child (in loco parentis) or desire be the grandchild’s primary custodian due to the parents’ failure or inability to perform their duties.  The final step is always to prove that it is in the child’s best interest to live primarily with a grandparent. In an article that we previously published entitled “Do you have custody of your grandchild?” we explained the legal steps that you need to take to get custody of your grandchildren.

The law also describes when a grandparent has “standing” to ask for “partial custody,” or visitation, with a grandchild.  23 Pa. C.S.A. 5325.  The law as currently written says that a grandparent can request a court-ordered visitation schedule under certain conditions, including:

1)  where a parent is deceased;

2)  where the parents have been separated for at least six months or have initiated and continued divorce proceedings (emphasis added); or

3) where the child lived with the grandparent for at least twelve consecutive months and is removed from the grandparent’s home by a parent.

 

Now, however, the first clause of paragraph two has been disallowed by the Pennsylvania Supreme Court.  In the case of D.P. v. G.J.P., 25 WAP 2015, decided September 9, 2016, the Court ruled that it is unconstitutional to allow grandparents to seek partial custody solely because the parents “have been separated for at least six months.”

The parents in the D.P v. G.J.P. case won the legal argument that their separation should not be enough to give the grandparents “standing” to ask for partial custody. The Supreme Court agreed with the parents and said this section of the law violated parents’ fundamental, constitutional rights and cannot be used to ask the Court to award the grandparents’ custody. The entire opinion can be read here:

http://www.pacourts.us/assets/opinions/Supreme/out/J-53-2016mo-rev1.pdf?cb=2

Under the Fourteenth Amendment, parents have what the courts call a “fundamental liberty interest in raising their children as they see fit.” This includes the right to decide whether the grandparents should have regular visitation with their children.  It is assumed that parents act in their children’s best interests, and this fact does not change when parents decide to separate.

Courts in Pennsylvania may no longer intervene to order grandparent visitation just because the parents have been separated for six months. For now, unless and until the law is re-written, it is still possible for a grandparent to seek visitation rights through the Court.  It can only happen under paragraphs one and three of the law, when there is a deceased parent, or when the grandparents have had custody for a year and the child returned to the parent’s care. It is now unconstitutional to infringe on a parent’s rights and give a grandparent partial custody solely because of the breakup of the parents.

If you are a parent or a grandparent who wants to know more about the Grandparent Custody Act and how the Constitution can affect family law, talk to an attorney at the Mazza Law Group for legal information and advice.

 

DO YOU HAVE CUSTODY OF YOUR GRANDCHILD?

Many Grandparents take over the role of custodians when their sons and daughters are incapable of taking care of their own children.  Even if it is only temporary, there are legal ways to ensure that your grandchildren are safe and secure in your care when you are their primary caretaker.

What do you need to know if you have custody of your Grandchild? You have a right to seek court orders awarding you custody or guardianship a child or children living in your home.  Even if their parents are willing to let your grandchildren live in your home, it may be necessary to have a legal document to prove that you are responsible for their primary care in order to take them to the doctor or enroll them in school or arrange for daycare while you are working.

Custody of your Grandchild

If you plan to ask the court to ask for the legal right to keep custody of your grandchildren, you need to have “standing” – a legal reason – giving you the right to file a petition for custody orders.  Standing to request custody orders can exist in several ways, the first of which is when a grandparent is “in loco parentis” to the child – a legal term indicating that the grandparent is acting as a parent with the consent of the parents.

If you are not “in loco parentis,” you must prove that (1)  the relationship began with the parents’ consent or a court order, and (2) you are willing to assume the responsibility for the child, and one of the following situations exist: either (a) the child is determined to be a dependent child; or (b) the child is at substantial risk due to parental abuse or neglect, drug or alcohol abuse or incapacity, or (c) for at least 12 consecutive months, the child has resided with the grandparent and has been removed by the parent.  See 23 Pa.C.S. 5324 If your reason for seeking custody is (c), then you have 6 months from the child’s removal to file for custody.  Don’t wait for the end of the six months, act now if you think it is in the best interests of the child to be with you.

Even if the parents agree that you will be the primary custodian of their child, it still may benefit you and your grandchild to get a court order that establishes your legal rights and describes the parents’ ongoing involvement, if any. If you would like to formalize custody of your grandchildren, a lawyer can help to understand the laws and rules that give you standing to seek a court order confirming your role.  If you want to obtain or maintain custody of your grandchildren, call the experienced family lawyers at The Mazza Law Group, P.C. for advice and assistance.  We have helped literally hundreds of families work thru the process of raising children and grandchildren in non-traditional ways.