The Pennsylvania Superior Court Sheds Light On When Grandparents May Pursue Custody Of A Child

October 20, 2018

In custody litigation, it is often the case that grandparents wish to be heard because they have a vested interest in seeing that their grandchildren are properly cared for. However, the actual rights that grandparents have in custody litigation is often not nearly as great as the emotional attachment that the grandparents have. The rights of the parents, in most situations, will be superior to the grandparents. However, there are instances where grandparents can be involved in custody litigation a recent Pennsylvania case shed some light on the extent of those situations.

In the recent case of GAP v. JMW, 2018 Pa. Super. 229, the Pennsylvania Superior addressed the claims of grandparents to custody. The case involves custody of a young boy and has a long and tortured history. Both the mother and father of the young boy have a history of drug abuse and the father has a criminal history. As a result of these circumstances, the child's maternal great-grandparents had exercised custody over the child continuously since 2015.

The father then filed an action seeking custody and the mother and father entered an agreement that granted shared custody to both parents. The maternal great-grandparents, who the child was exclusively living with, filed for custody and to intervene in the action alleging that the child had been residing with them continuously for approximately ten months and was not safe during periods of partial physical custody with the father, including allegations that the child reported inappropriate sexual acts between the father and the child. The Court permitted the maternal great-grandparents to intervene and vacated the mother and father's agreed custody arrangement.

Mother did not appear at any proceedings. Ultimately, the maternal great-grandparents and father agreed to share legal custody (i.e., the ability to make decisions for the child), giving maternal great-grandparents primary physical custody, and giving the father supervised physical custody that could be modified by recommendation of the CARE Center, the organization that was responsible for supervising visits. About 5 months later maternal great-grandparents filed a petition alleging that the father had relapsed in his drug use, requested that father submit to drug screens, and requested that Father's visitation be limited to supervised physical custody of the child. The Court suspended Father's unsupervised partial physical custody of the child.

At this point, the child's paternal grandparents filed to intervene requesting partial physical custody of the child because the child was substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity. This is one of the circumstances in which grandparents can seek custody and the justification maternal great-grandparents used. Maternal great-grandparents objected saying the child was not "at risk" because the child was with them and not the parents. The trial court agreed and dismissed the paternal grandparents' custody filings.

The Pennsylvania Superior Court reversed stating that the proper standard as to whether the child is "at risk" under the custody statute is to look to the parents, and not the current custodians. As maternal great-grandparents own petition was based on the conduct of the parents, the Court found that the paternal grandparents should have been permitted to raise their claims for custody. The Court therefore sent the matter back to consider the paternal grandparents' claims for custody. The Court further recognized that if the paternal grandparents were not permitted to raise their claims that it would create a "race to the courthouse" situation where the first grandparent to get in their claim would have superiority, which the Court found is clearly not what the Legislature intended.

The Court therefore clarified that grandparents can file for custody when the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity and that each grandparent is on equal footing as the standard looks at the parents and not other caregivers. If you have a grandchild or great-grandchild involved in a situation where the parents of the child are putting the child at risk, the lawyers at Conway Schadler have experience that can make the difference in these types of situations. Please contact our offices for a free consultation so we can discuss how this substantial experience can be used to your benefit.