By Kathleen A. O’Connor

When we think about who is typically involved in a custody matter, a dispute between the parents of the children first comes to mind.  However, this is not always the case.  On an ever increasing basis, grandparents, and occasionally other members of the child’s family, are filing petitions to seek visitation or custodial rights to the child(ren).  Family discord, substance abuse, incarceration, an uninvolved parent, or even the death of a parent, are just a few of the reasons grandparents are often forced to turn to the Court to seek custodial rights to their grandchildren.

In Pennsylvania, the Custody Act includes 2 statutes that set forth specific circumstances under which grandparents may seek (1) any form of legal and/or physical custody; or (2) partial physical custody or supervised physical custody.  Prior to September 2016, those laws included a provision that allowed grandparents to pursue custody in situations in which the parents of the child had simply been separated for a period of at least six (6) months – even if one or both of the parents objected to the contact.  However, on September 9, 2016, the Pennsylvania Supreme Court struck down this provision as unconstitutional for improperly invading the decisions of presumptively fit parents.

As a result, effective July 3, 2018, the Custody Act was revised to reflect the current parameters under which grandparents may pursue custody of grandchildren.  The first statute, Section 5324, provides that a grandparent may seek any form of legal custody (decision-making authority) and/or physical custody (where the child resides/visitation) if the grandparent’s relationship with the child began with parental consent or by court order, and the grandparent can show that the child has been determined to be dependent by the Court, or the child is at substantial risk due to parental abuse, neglect, or drug or alcohol abuse, or the child resided with the grandparent for a period of at least 12 consecutive months, and the grandparent is seeking custodial rights within 6 months of the child’s removal from the grandparent’s home. 

The second statute, Section 5325, states that, in addition to the situations stated in Section 5324, a grandparent, or a great grandparent, may seek partial physical custody or supervised physical custody (1) where a parent of the child is deceased; (2) where the relationship with the child began with the consent of a parent or under court order and the parents have commenced a custody proceeding and do not agree as to whether the grandparents should have contact with the child; or (3) the child resided with the grandparent for a period of at least 12 months, and the grandparent is seeking custodial time within 6 months of the child’s removal. 

While many grandparents are utilizing these laws to simply spend time with their grandchildren, unfortunately, the current and widespread opioid epidemic has forced a far greater number of grandparents in recent years to step in to seek custodial rights to their grandchildren.  The intent is for these grandparents to temporarily care for and provide their grandchildren with a stable environment while the parent(s) treat their addiction and get back on their feet.  Occasionally, however, addiction can hold its grip on the parent(s) for many months or even years.

Whether you are a parent faced with a petition from another family member seeking visitation and/or custodial rights to your child, or you are a grandparent whose grandchildren are at risk due to their parent’s addiction and/or mental health struggles, the attorneys at Sweeney & Neary LLP are here to lead you through this emotional time.  Please call us at 610.892.7500, email us at info@sweeneynearylaw.com or message us for more information.

Sweeney & Neary, LLP is a premier family law firm that provides individuals with matrimonial and family law legal counsel and representation in alimony, child support, child custody, divorce, cohabitation, grandparents’ custody rights, equitable distribution, marital settlement agreements, prenuptial and postnuptial agreements, separation agreements, spousal support, matrimonial taxation issues and related legal matters. The practice at Sweeney & Neary, LLP centers on four core principles: experienced guidance, compassionate advice, powerful advocacy and knowledge of the local courts and counsel. The firm prides itself on leadership within the profession and a strong record of success. To learn more, visit www.sweeneynearylaw.com