Grandparents have standing to bring an action for custody even when the child is declared dependent and is in the custody of a children and youth agency.

By Attorney Alyssa H. Knisely, Grandparents' Rights Attorney, Harrisburg, PA

Under the new Child Custody Statute enacted in 2010, 23 Pa.C.S.A. Section 5324, the following individuals may file an action under this chapter for any form of physical custody or legal custody:

  1. A parent of the child.
  2. A person who stands in loco parentis to the child.
  3. A grandparent of the child who is not in loco parentis to the child:
  • (i) whose relationship with the child began either with the consent of a parent of the child or under a court order;
  • (ii) who assumes or is willing to assume responsibility for the child; and
  • (iii) when one of the following conditions is met:

(A) the child has been determined to be a dependent child under 42 Pa.C.S. Ch. 63 (relating to juvenile matters);

(B) the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity; or

(C) the child has, for a period of at least 12 consecutive months, resided with the grandparent, excluding brief temporary absences of the child from the home, and is removed from the home by the parents, in which case the action must be filed within six months after the removal of the child from the home.

The Pennsylvania Supreme Court held that 23 Pa.C.S. ยง5313(b) (now repealed and Section 5324 has taken its place) confers standing upon grandparents in custody and/or visitation actions. SeeR.M. v. Baxter, ___A.2d___ (Pa. 2001). Specifically, the court held that an adjudication of dependency would not defeat the grandparent's standing, which is automatic, regardless of its effect on subsections (1), (2), and (3) because those subsections are questions of fact to determine the case on the merits. See Id. Therefore, grandparents have standing to bring an action for custody even when the child is declared dependent and is in the custody of a children and youth agency.

The new Child Custody Act of 2010 essentially codifies the decision in Baxter. That is, if a grandparent is willing to assume responsibility for a grandchild, if that child has been declared dependent or is at a substantial risk due to the parents, then grandparents have the right to establish primary physical and legal custody. This is even true if the grandparents are not the natural grandparents, but adoptive or even stepgrandparents, under prior decisional law.

If you are a grandparent and one or some of your grandchildren have been taken into custody by children and youth, you have the right to file for custody of them. However, you should act quickly as the agency will likely begin making plans for them, such as a foster placement or other family alternatives.