Do Grandparents have a right to file a Petition for Custody of their grandchildren? What about Aunts, Uncles, or friends? Is it possible for these concerned parties to request custody when the living situation of these minors is dire?
I often get calls asking these very questions. The stories are frequently challenging and they involve issues of drug abuse, domestic violence, sexual abuse and neglect. While these relatives still love and care for the natural parents of these children, they are willing to hire counsel to improve living conditions for these neglected and abused children.
Applicable Pennsylvania law now recognizes the right of a grandparent to file a Petition for Custody. While presumption in these cases favors the natural parent, it may be rebutted by clear and convincing evidence. 23 Pa. C.S.A. §5327(b).
A grandparent’s right to file a Petition for Custody is limited. When the natural parent is not consenting to such custody, the grandparent can request an order approving such custody if the grandparent stands in an “in loco parentis” role with the child, meaning “in place of” or if one of the following conditions are met:
a) the child has been determined to be a dependent child;
b) the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity; or
c) the child has lived with the grandparent for at least twelve consecutive months.
If this is the case, a Petition for Custody must be filed within six months after the removal of the child from the grandparent’s home. 23 Pa. C.S.A. §5324(3).
Other Non-Parental Relatives or Friends
Interestingly, the law has recently been amended expanding the rights of either non-parental relatives or other individuals who pursue custody of a minor. Pursuant to these recent amendments, an individual can gain custody of a minor if he or she establishes by clear and convincing evidence, at the hearing that: 1) The individual has assumed or is willing to assume responsibility for the child; 2) The individual has a sustained, substantial, and sincere interest in the welfare of the child; and 3) neither parent has any form of care and control of the child. 23 Pa. C.S.A. §5324.
Hearing and Award;
If a party has standing to file the Petition for Custody. Ultimately, a hearing would be scheduled by the court. As the hearing progresses, the court would consider numerous factors before awarding custody to a relative other than the natural parent. These factors include but are not limited to: the parental duties performed by each party on behalf of the child; the need for stability and continuity in the child’s education, family and community life; the well-reasoned preference of the child (depending on the child’s maturity and age); the question of which party is more likely to maintain a loving, stable and consistent environment to support the child’s emotional needs; and the parties’ availability to care for the child or to make appropriate childcare arrangements. As always in custody matters, the prevailing issue is the best interest of the child. 23 Pa. C.S.A. §5328.
Call 610-433-3910 or 215-348-2088 and ask to speak with Tom Blackburn at Drake, Hileman and Davis. “email@example.com”