I receive many phone calls from concerned grandparents who wish to obtain primary custody or visitation of their grandchildren. To ask for any form of physical or legal custody of a grandchild, you must have standing to do so as a grandparent. To have standing you must show that
your relationship with the child began either with the consent of a parent of the child or under a court order;
you assume or are willing to assume responsibility for the child; and
when one of the following conditions is met:
the child is dependent under the Juvenile Act;
the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity; or
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.
If you do not meet the above factors, you will not be able to bring a custody action for physical or legal custody of your grandchild. However, you may still be able to file for partial physical custody (visitation) and/or supervised physical custody if:
your child (the parent of your grandchild) is deceased;
when the parents of your grandchild have been separated for a period of at least six months or have commenced and continued a proceeding to dissolve their marriage; or
when the child has, for a period of at least 12 consecutive months, resided with the grandparent or great-grandparent, excluding brief temporary absences of the child from the home, and is removed from the home by the parents. In this case, an action must be filed within six months after the removal of the child from the home.
To make matters more complicated for grandparents, in any action with a parent and a third party (such as a grandparent) there is a presumption that custody shall be awarded to the parent. This presumption can be overcome by clear and convincing evidence. So, if you prove to the court that you have standing to bring the custody action, you are still faced with overcoming the belief that the parent should have custody of the child over you.
If you would like to discuss this area of the law further, please contact our office today at 717-885-5830 to set up a low-cost initial consultation.
