I recently had a client who called to inquire about the rights of her in-laws (child’s grandparents) to see her child. She originally thought that she did not have to let them see her child. Yes, a grandparent can file for a custody order in certain circumstances.
First of all, grandparents can seek visitation and partial custody under the “Grandparent’s Visitation Act.” 23 Pa.C.S.A. § 5321, et al. This grants visitation or partial custody to a grandparent with the condition that this would be in the child’s best interest. In addition, the visitation or partial custody must not unduly interfere with the child’s engagement with his/her parents.
Secondly, the grandparent, who is not currently acting “in loco parentis” can file for full legal and physical custody if a number of criteria are met. These criteria are:
1. One of the parents permitted the grandparent to establish a relationship with the minor child, or the court ordered that such a relationship be allowed to form, and
2. “The grandparent is willing to take care and responsibility for the child;” and
3. When one of the following criteria is established
a. The custody court decides that the child is at risk because of abuse, drug and alcohol use, or
b. Under the ‘child abuse and neglect laws’ the court finds that the child is ‘dependant,’ or
c. The minor child has resided with the grandparent for twelve months in a row, but is later removed from the grandparent’s home by the parents. In this unique case, the grandparent has 6 months in which s/he must file for cusody.
A grand parent or a great-grandparent may further file for partial physical custody or “supervised physical custody” if:
1. The original parent died
2. Or, the child’s parents have not lived together (i.e., they have been separated) for 6 or more months, or the parties have entered a divorce proceeding,
3. Or, the child has lived with the grandparent for 12+ months in a row and is removed by the parents (similar to above.) In this particular case, the grandparent is required to file for custody within 6 months.