Recent Changes to Pennsylvania Custody Law (July 2018)
Unless parental rights have been terminated by the Court, a parent always has the right to seek and sustain an action for custody of his/her minor child. In addition, an individual who has been acting in loco parentis (defined below), has standing to seek custody. Additionally, Grandparents can seek custody, even if they did not previously stand in loco parentis, provided the following conditions have been met:
- If they assumed their duty with consent of one of the parents, or they are willing to assume custody and if:
- The Court has deemed them dependent due to the parents’ inability to care for the child;
- The child is at risk with the parents;
- The child resided with the Grandparents primarily during the previous 12 months.
This past summer, the Pennsylvania legislature amended Pennsylvania’s child custody law, as it pertains to standing to seek custody (i.e., who can seek custody of a child). In May 2018, Governor Wolf signed Act 21 which became effective on July 3, 2018. The Act further defined a third party non-parent’s ability to seek custody of a child under certain circumstances.
The Act further allows third parties the right to file for physical or legal custody of a child, if the person seeking custody establishes each of the following:
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. The court may consider the nature and extent of the individual’s prior and current involvement in the child’s life.
3. Neither parent has any form of care and control of the child.
Standing to Seek Custody in PA – Who Can File for Custody? (23 Pa. C.S. Section 5324)
“Standing” is a legal term meaning a person’s ability to bring a law suit. The issue of standing to seek custody is a preliminary or threshold issue that will be resolved before the merits of the underlying case are even considered. It is important to note that Pennsylvania family courts, including family law courts in Bucks County, will review standing issues stringently when it comes to child custody matters. This means that courts will be particularly careful when determining whether a party has standing. Once standing is determined, family court judges will decide custody based on the best interests of the child. Click to download a free legal resource, the Zlock Child Custody Law pdf.
Pennsylvania law clearly delineates who may seek custody of a child. Prior to the recent amendments, Section 5324 only allowed certain individuals to seek physical or legal custody:
- a person standing in loco parentis to the child, or
- a grandparent (without in loco parentis status, subject to certain requirements).
The In Loco Parentis Standard in Pennsylvania Child Custody Matters
The phrase in loco parentis refers to a person who stands in place of the parent with respect to the assumption of parental status and duties. No familial relationship is required.
Any person can prove in loco parentis status, including former partners or paramours of a parent, extended family members such as an aunt or uncle, grandparents, etc. Even family friends or neighbor could seek custody as a person standing in loco parentis to the child. The key is evidence, being able to prove the parental status and parental duties.
I am a grandparent to a child; What are my rights to see my Grandchild?
The standing requirements mentioned above relate to any party’s ability to seek “full” or “primary” custody of the minor child meaning they assume the traditional role of a parent in custody. There is an expansion of standing for grandparents seeking only visitation or partial custody of a minor child or children. Grandparents have traditionally been allowed additional standing above and beyond the standing of an individual who is not a parent to the child. Prior to the July amendments to the law they had a wide berth to do so when the parents were separated for six months or more without qualification. Recent caselaw struck down this provision but the remaining provisions for Grandparents to seek partial custody or visitation remain.
Grandparents may seek partial custody or visitation when either 1) the parent of a child has deceased and they were the parent or grandparent of the deceased parent; 2) where the grandparents relationship with the grandchild began with the consent of one of the parents and a custody proceeding has commenced between the parents of a child and the parents can’t agree to the grandparent having visitation or; 3) the child resided with the grandparent for the last 12 months or more.
Under these circumstances a grandparent may seek partial custody or visitation with their grandchild.
Standing is a complex legal term and its application can be difficult to ascertain. If you have any questions regarding standing or its applicability to you, please contact our firm to schedule to meet with one of our attorneys to determine your rights with regard to custody.