By: Samuel C. Totaro, Jr., Esq. and Hollis J. Fishman, Esq.
On September 3, 2013, significant modifications to the Pennsylvania Rules of Civil Procedure concerning the rights of grandparents went into effect. Prior to these amendments, the Rules essentially provided that a grandparent had an automatic right, i.e., “standing,” based on their familial relationship alone, to file a petition for physical and/or legal custody of a grandchild. In order to prevail, a grandparent then had to prove that (1) he or she had genuine care and concern for the child; (2) his or her relationship with the grandchild began with the consent of the child’s parent or by court order; and (3) for 12 months, the grandparent had assumed the role and responsibilities of the grandchild’s parent; or assumed responsibility for the grandchild if determined to be a dependent child; or assumed responsibility for the grandchild because he/she was substantially at risk due to parental abuse, neglect, drug or alcohol abuse or mental illness.
The Pennsylvania Legislature amended the grandparent custody and visitation statute on November 23, 2010, which required modification to the prior rules regarding grandparent custody. Under the amended statute, a grandparent’s right to file for custody is more limited and is no longer based on a familial relationship alone. A grandparent can file for custody only if he or she is in “loco parentis” to the child, i.e., a person who with the consent of the parent is acting as a parent to the child, or, can prove that: (i) the grandparent’s relationship with the child began either with the parent’s consent or by court order; (ii) the grandparent assumes or is willing to assume responsibility for the child and (iii) one of the following: (A) the child has been determined to be a dependent child; or (B) the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse, or incapacity; or (C) for a period of at least 12 consecutive months, the child has resided with the grandparent. The statute allows for brief temporary absences of the child from the grandparent’s home. If the child is residing with the grandparent and is removed by his or her parent, the grandparent must file for custody within 6 months of removal of the child.
The law regarding partial custody and visitation for grandparents and great-grandparents has also been notably tailored. The former statute stated that if a grandchild resided with his or her grandparents or great-grandparents for a period of 12 months or more and is then removed from the home by his or her parents, the grandparents and/or great-grandparents could then petition the court for an order granting them reasonable partial custody or visitation rights, or both. In addition to living with the grandparents or great-grandparents for a 12 month period, the grandparents or great-grandparents must meet certain tests to prevail. The test includes: (1) proof that visitation rights to the grandparents or great-grandparents would be in the best interest of the child and (2) that the visitation rights to the grandparents or great-grandparents would not interfere with the parent-child relationship.
The newly amended statute has changed the requirements for grandparents and/or great grandparents to prevail on a petition seeking partial custody or visitation. Now, a grandparent and/or great-grandparent may file for partial custody or visitation of a grandchild or great-children when: (1) his or her child is deceased; or (2) when the parents of the child have been separated for a period of at least 6 months or have commenced and continued divorce proceedings; or (3) the child has, for a period of at least 12 consecutive months, resided with the grandparent or great-grandparent and has been removed from his or her home by the child’s parents. Again, brief temporary absences of the grandchild from the residence are excusable. This statute also states that if the child is residing with the grandparent or great-grandparent and is removed by his or her parent, the grandparent or great-grandparent must file for custody within 6 months of removal of the child. Although the court always takes into consideration the best interest of the child in determining whether to grant a petition, the statute no longer requires it to consider whether the visitation would affect the child’s relationship with his or her parent.