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Pennsylvania Grandparent Custody & Grandparent Visitation Laws

Posted by Lisa Vari

Pennsylvania recognizes the rights of PA grandparents to seek visitation, partial physical custody, or primary physical custody of their minor grandchild or grandchildren. The grandparents must prove that the requested custody would be in the best interests of the minor grandchild or grandkids and would not interfere with the relationship between the parent and the minor child. Pennsylvania Grandparent's Partial Custody and Visitation After the United States Supreme Court case of Troxel v. Granville was decided, some parents and their attorneys have argued that it is unconstitutional for a state court to award even partial custody or visitation to grandparents if the parent disagrees with the grandparents' request for partial custody or visitation. Florida and some other states that have directly confronted the issue have determined that it is unconstitutional to force a fit parent to be compelled to allow contact with their minor children's grandparents. The Pennsylvania Supreme Court in the case of Hiller v. Fausey has recently ruled that the Pennsylvania Grandparent Visitation Statutes are constitutional and are a means to protect the emotional well-being of children who have been estranged from their grandparents. Generally, grandparents can seek partial custody or visitation of their minor grandchildren in one of three circumstances: (1) if either of the child's or children's parents are deceased; (2) if the parents have never married, are married but separated for more than six months, or are divorced; or (3) the grandchildren have resided with the grandparents for more than 12 months and then were removed from the home. There is no right to compel grandparent partial custody or visitation if the parents are residing together in an intact marriage. Pennsylvania Grandparent Primary Custody Law Under section 5313(b) of the Pennsylvania Domestic Relations Code, grandparents have the right to sue for primary custody of their minor grandchildren. While any grandparent may file a Complaint for Custody, in a case contested by the biological parents, a grandparent has strict evidentary burdens that must be proven if the trial court judge is going to award custody to the grandparents. As preliminary matters, the grandparent must prove (1) that the relationship with the grandchildren began with the consent of the parent or pursuant to an order of court; (2) that the grandparent has genuine care and concern for the grandchildren; and (3) that the grandchildren either (a) resided with the grandparents for at least 12 months where the grandparents acted like the grandchildren's parents (generally requires that the parent not also reside in the house); (b) that the grandchildren have been declared dependent due to parental abuse or neglect; or (c) that the grandparents believe that the grandchildren are substantially at risk due to parental abuse, neglect, drug or alcohol issues. Even if the above requirements are met, the trial court judge must still determine what is in the children's best interests applying a weighted determination in favor of the biological parents. In other words, the court must find that it is not in the best interests of the minor children to be in the custody of their parents and that it is in the best interests of the minor children to be in the custody of the grandparents. It is not easy an easy task for grandparents to be awarded primary physical custody if the biological parents contest the award of custody to the grandparent. Attorney Vari has been successful in litigating cases where grandparents have been awarded primary custody. On the other hand, Attorney Vari has also been successful in having grandparent primary custody cases dismissed when the grandparents did not meet the evidentiary requirements for the award of primary custody. A case involving grandparents' primary custody rights evolved through the Armstrong County Court of Common Pleas. In the case of K.B., II, K.B. and B.B. v. C.B.F., the Armstrong County trial court awarded primary physical custody of a minor child to his paternal grandparents even though the court found the child's mother to be an adequate parent. Attorney Lisa Vari was retained to represent the mother in her appeal to the Pennsylvania Superior Court. In the case argued before the Pennsylvania Superior Court, Attorney Lisa Marie Vari argued that only if a parent is declared to be unfit should grandparents have the right to seek primary physical custody of their minor grandchildren. While Attorney Vari was successful in having the mother's primary custody rights restored, the Superior Court of Pennsylvania held that grandparents have the right to sue parents for primary physical custody of their grandchildren even if the parents are deemed to be fit parents. On January 2, 2004, the Pennsylvania Supreme Court agreed to review the Superior Court's ruling on the K.B., II, K.B. and B.B. v. C.B.F. case. The Pennsylvania Supreme Court heard arguments from both Attorney Lisa Vari and counsel for the grandparents in September of 2004. In November 2005, the Pennsylvania Supreme Court dismissed the appeal filed by Attorney Vari as "improvidently granted". It was later learned that the appeal had been improperly granted because Attorney Vari's client, the mother, had won the return of her child from the grandparents at the Superior Court level. It is a true shame that the Court did not have the opportunity to review its prior opinion in the Baxter case and make some necessary changes. PA Grandparent Shared Custody Rights There is no provision in the Pennsylvania statutes for a grandparent to be awarded shared physical custody with a child's parent or parents unless the parent or parents agree to an order of shared physical custody. Grandparents are only permitted to pursue claims for partial custody, visitation, or primary physical custody as stated above. Grandparents' Rights Relating to Adoption and Juvenile Court Actions A grandparent of a child who has been abused or neglected by the child's parent or parents can seek a number of different types of relief in the juvenile courts. These rights include the right to be a placement option for so long as the parent remains unfit, the right to seek custody of the grandchild (which would extend even beyond a parent's period of unfitness), or if the juvenile court seeks to terminate the parents' rights the grandparent can seek to adopt the minor grandchild. The most crucial factor for a grandparent whose grandchild is involved in juvenile court or adoption proceedings is to act promptly to obtain an attorney familiar with grandparents' rights. The child welfare agency, the judge, and the attorneys for the child and parents are not there to advocate your rights, you must take the appropriate action quickly. Grandparents also have the right to seek to adopt their minor grandchildren even if the grandchildren have not been declared dependent or have an active case with the child welfare agency. This situation generally involves when a grandparent has had custody of the grandchildren through a voluntary agreement with the parent or a custody order and the grandparent wishes to secure the relationship for the future. It should be remembered that even if a grandparent has had custody of a grandchild for a significant period of time, the parent may seek modification of the custody arrangement and seek the return of the child into the parent's care. Given that the parent is afforded a weighted determination in their favor, grandparents may wish to seek to prevent the disruption of the child's life in the future and request the court to terminate the parents' rights and to adopt their grandchildren.

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The statements in this guide are based on Pennsylvania law and have been issued to inform and not advise. The statements are general in nature and individual facts in a given case may alter their application or involve other laws not referred to here. Please contact an experienced Pennsylvania family law attorney who can advise you on the specific application of Pennsylvania laws to your circumstances.

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