A grandparent could have standing as in loco parentis. If a grandparent is not in loco parentis, however, there are other ways that a grandparent can achieve standing.
When a Grandparent Seeks Primary/Sole Physical Custody or Legal Custody
A grandparent can have standing to seek physical custody or legal custody of the child, if their relationship with the child began either with consent of a parent or by court order, the grandparent has or is willing to assume responsibility for the child, and if one of the following conditions are met: (1) the child has been determined to be a dependent; (2) the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse, or incapacity, or (3) the child has resided with the grandparent for at least twelve consecutive months and has been removed from the home by the parents, so long as the action is filed within six months of the child being removed from the grandparent’s home.
Once a grandparent has established standing to file for primary/sole physical or legal custody, the court will then consider whether or not the grandparent should be awarded custody of the child by analyzing the sixteen custody factors set forth in 23 Pa. C.S.A. § 5328(a).
When a Grandparent Seeks Partial Physical Custody
Grandparents have standing to seek partial physical custody or supervised physical custody if: (1) a the child’s parent is deceased; (2) the child’s parents have been separated for at least 6 months; (3) child resided with grandparent for 12 months.
Specifically, the statute provides that the Court must consider whether the award of custody would interfere with any parent-child relationship in addition to whether it would be in the best interest of the child. In cases where the grandparent has standing because the parents have been separated for six months or because a parent is deceased, the statute requires that the Court additionally look to the amount of personal contact between the child and the grandparent prior to the filing of the action.
After establishing standing for partial physical custody, the court will consider whether it is in the child’s best interest to award the partial custody to the grandparent. In cases in which standing was established because the child’s parents have separated or a parent is deceased, the court must also consider the amount of personal contact between the grandparent and the child prior to filing the action. In cases in which standing has been established because the child has resided with grandparents for more than 12 months, the court must take into account whether awarding partial physical custody to the grandparents would interfere with parent-child relationship.
Our Family Law attorneys that specialize in Grandparent Custody include: