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“Remember that children, marriages, and flower gardens reflect the kind of care they get.” – H. Jackson Brown, Jr.

The most fortunate children grow up being loved by many adults besides their parents, but loving a child cannot by itself confer the right to claim custody of that child in Pennsylvania. Only people who have “standing” under the law may ask a Pennsylvania family court to grant them an award of custody.

On May 4, 2018 Pennsylvania Governor Tom Wolf signed into law Senate Bill 844, which makes some major changes to who can petition a PA family court for child custody. It affects grandparents’ rights to ask for custody of their grandchildren; and under certain circumstances, it grants standing for the very first time to third-parties such as aunts, uncles and other close relatives to sue for custody. The new law takes effect on July 3, 2018, sixty days after being adopted.

What is “standing” in a Pennsylvania child custody case?
Standing, for purposes of the law, has to do with who has the right to make a claim before the court, and to have that claim heard. Going to court in Pennsylvania was never meant to be a free-for-all; you must have a reasonable basis to ask for what you want the court to grant. If you are a parent, you always have standing to request a PA court to determine your custody rights toward your own children… but probably not to ask that same court to make decisions about my children.

Having standing to file for custody of kids does not mean that you will win, of course. It just means that you have the right to make the request. You still will have to back up your claim according to the standards set under PA child custody law, and to convince a judge that the custody arrangement you want to establish is the right outcome.

No matter how much you love a child nor how committed you may be to that child’s well-being, the courtroom door will be closed and barred against you if you lack standing to make the claim.

Who can sue for any form of physical and legal custody of a child in Pennsylvania?
Pennsylvania child custody law makes a distinction between physical custody (the right to obtain the physical presence of a child) and legal custody (the right to participate in the parental decision-making process over that child). Likewise, there is a difference between the kind of standing that will let the claimant ask for any form of physical or legal custody over a child, and the kind that sets a lower standard, and that is limited to claims for partial physical custody or supervised partial physical custody.

You can make any claim for physical and legal custody of a child if (and only if) you fit into one of these categories:

Parents. That’s no surprise. If you are a child’s parent whose parental rights have not been terminated by a court (for example, by adoption), you can make your claim and be heard.

A person who stands in loco parentis to the child. “In loco parentis” standing applies to an adult who is not a parent to a particular child either by blood or by adoption, but whose relationship with the child was begun by a blood (or adoptive) parent in anticipation that it would become indistinguishable from a parental relationship. In practice, this means that the child has resided with the adult who claims in loco parentis standing Step-parents often can claim this kind of relationship, as can grandparents who have, in effect, become parents to their grandchildren due to the absence, incapacity or disinterest of the actual parents.

Grandparents not in loco parentis, who meet a strict and narrow standard. To meet the standard, the claimant must be a natural grandparent to the child (step-grandparents don’t make the cut), and the relationship with the child must have begun with the consent of a parent (or by court order). The grandparent must have assumed, or be willing to assume, responsibility for the child. Additionally, one of three things must be true: (1) the child must have been found “dependent” by a juvenile court; (2) the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse, or incapacity; (3) less than six months before the grandparent files the custody claim, the child had been living with that grandparent for at least twelve consecutive months before the child was removed from the home by a parent.

The above three categories were already in place under the old law. The 2018 change to PA child custody law establishes a fourth category of child custody claimant:

Any person who is able to establish by clear and convincing evidence: (1) that he or she has assumed or is willing to assume responsibility for the child; (2) that he or she has a sustained, substantial and sincere interest in the child’s welfare ; and (3) neither parent has any form of care and control of the child. The person who meets this standard need not be a grandparent, or even a blood relative. Please note that this category does not apply where there is a current dependency proceeding involving the child, or where the child has been adjudicated dependent and the court has made an award of permanent legal custody.

Who can sue for partial physical custody of a child in Pennsylvania?
People seeking custody under this form of standing are subject to strict limitations in the kind of relationship they can ask the child custody court to support. These people may claim time to spend with a child, but without the authority to make parent-level decisions:

The parent of a deceased parent. Grandparents can claim access to a grandchild if their own child, a parent to their grandchild, has died.

A grandparent with whom the child has resided for at least a full twelve months, if the grandparent files the custody claim within six months after the child was removed from the grandparent’s home by a parent.

The 2018 change to the Pennsylvania custody code also grants standing to file for custody to:

A grandparent whose relationship with the child began either by a parent’s consent or by court order, when the parents have commenced a custody proceeding and when the parents cannot agree over whether the grandparent should have custody.

Who lost standing when the law changed?
Grandparents are no longer able to file for partial physical custody simply because the parents of their grandchild have been separated for six months or longer, or because the parents are parties to a divorce proceeding.

If you need legal assistance with your grandparents’ rights case or otherwise protecting children you are caring for, call our office to set up a personal consultation with a Pittsburgh child custody law attorney. Please do not comment anonymously, and do not post anything that you consider confidential. We try to be responsive to commentary and questions, but know that posting here will not create an attorney/client relationship and that we will not offer legal advice via the Internet.

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Generally
Before a couple separates, there is no established “custody” of the children, and neither parent has more rights toward the children than the other. It is important for parents to realize that even if their romantic relationship is ending, their relationship as parents will continue as long as they live; they are stuck with each other, for good or ill. It can be extremely difficult to avoid letting the problems between the adults spill over into the parenting, but insulating children from those disputes is ultimately the best and most constructive thing to do. There is simply no substitute for two parents working together in the best interest of their children, and letting the children see their parents continuing to cooperate after they separate can ease their transition into the new situation, however it works out. Remember that no lawyer or judge can love your children the way you do, and no one is more qualified to decide what is best for children than their parents. Finding themselves in the middle of disputes between their parents is traumatic for children, even if it is sometimes unavoidable. Never forget that for children, particularly young children, you and the other parent are their world.

No matter how willing you are to keep adult issues between the adults, however, sometimes a parent is forced into dispute by the actions of the other parent. In that instance, the court is available to address the dispute and attempt to bring stability to the situation. Bear in mind, however, that not only can custody litigation be very expensive and personally difficult if matters do not resolve through settlement, it places the decision-making power into the hands of a judge who is likely to presume until proven otherwise that both of you are competent, capable parents who simply cannot agree about the welfare of your children. It is also true that custody litigation can sometimes be a necessary “wake up call” to an over-controlling parent whose actions are interfering with the other parent’s relationship with the children.

Custody rights are viewed in Pennsylvania as belonging to your children, rather than either to you or to the other parent. Should a custody matter be brought before a family court, that court will have only one consideration: the best interest of your children. It is important to realize that no court will care how hurt you might be over the situation, or how outraged you might be, or how much you miss your children; a judge will be deaf to all arguments based on those concerns, and will focus only on your children’s welfare.

Because the welfare of your children is at stake, it is often a good idea to be proactive about custody issues; that does not always mean using a court as a first resort, but it does mean trying to stabilize the situation and reach agreements, if possible, while getting as much information as you can to help you decide what to do in the event that no agreement can be reached. Your divorce and family law attorney can advise you not only about your options in court, but also about possible approaches to the situation (and to your co-parent) that may allow you to resolve your situation without litigation.

Court-ordered programs
Courts recognize that a judge makes a poor substitute for a child’s parents. When a parent files a custody dispute in most counties in Pennsylvania, both parents (and sometimes the children) will have to attend court-mandated dispute resolution programs. In Allegheny County, for example, the parents will have to participate in the Generations Program, consisting of an educational seminar, age-appropriate programs for children between the ages of 6 and 15, and a two-hour mediation session. Parents will sometimes also be ordered to participate in a “co-parenting counseling” program, in an effort to improve communication between them and to give them an opportunity to air and discuss grievances in a protected environment. These programs often do lead to settlements, so it is a good idea to go into them with an open mind, even if you are skeptical about how useful they are likely to be.

Physical custody and legal custody
There is a distinction in Pennsylvania between “physical” and “legal” custody of your children. Physical custody identifies which parent has the right to take the children from the other parent at a particular time. Legal custody identifies who has the right to be notified about matters affecting the children, who has access to information and records about them, who has the right to be consulted before decisions are made about them, etc. “Visitation,” as opposed to physical custody, is a much weaker relationship. There are rare occasions (usually involving violent behavior) in which a parent is limited to supervised visitation.

Many custody relationships between separated parents are based on one parent having primary physical custody, with the other parent having partial physical custody (such as every other weekend with time during weekday evenings, with arrangements for holidays and vacations), although the trend in Pennsylvania appears to be to maximize each parent’s involvement with the children in a shared physical custody arrangement, to the extent possible. Whatever the physical custody arrangement, both parents usually share joint legal custody in recognition that neither of them should be forced to become a part-time parent. Only in rare circumstances does a parent get an award of sole custody of a child.

There is no ‘magic age’ at which children get to decide for themselves between their parents. Judges often will talk to the children in a disputed custody situation, but will not automatically allow a child to select his or her own custody arrangement; instead, judges will take the entire situation into account, and will decide accordingly.

If you need legal assistance with your divorce or family law matter in Southwestern Pennsylvania, call me to set up a personal consultation. Please do not comment anonymously, and do not post anything that you consider confidential. We try to be responsive to commentary and questions, but know that posting here will not create an attorney/client relationship and that we will not offer legal advice via the Internet.

Pittsburgh Family Law Services, P.C.

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Pennsylvania child custody law is changing: can grandparents and non-parents still file?

Child custody in Pennsylvania