Can Grandparents Get Custody In Pennsylvania?

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There may be times where a Grandparent is worried about the situation that they see their grandchild in. They might be concerned for their safety or well-being. Other times it could be that the grandchild has lived with them for some time now and they just want to have an official document saying that the child is in their custody. They might need a custody order in order to be able to sign off on certain things for the child. The fact is that in Pennsylvania it is possible for a Grandparent to get custody, however there is certain criteria that needs to be met.

In Pennsylvania in order for a grandparent to get custody rights they need to have standing. To have standing means that your scenario complies with what the law says is required in order to get custody. To have standing a grandparent of the child cannot be in loco parentis. To be in loco parentis means acting as the parent in place of the parent. Usually you have to be in that situation for a long period of time. The next requirement by law is that the grandparent must have a relationship with the child that started with the consent of the parents. The next requirement is that the grandparent assumes or is willing to assume responsibility for the child.

The next requirement requires that one of the following scenarios is true.

(A) the child has been determined to be a dependent child under 42 Pa.C.S. Ch. 63 (relating to juvenile matters);

(B) the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity; or

(C) 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.

 

Either A, B, C also needs to apply in order to have standing for custody as a Grandparent. However, even if you do not have standing for custody, you might have standing as a Grandparent for visitation, which is different. If you do not have standing by are curious about whether you have standing for visitation be sure to see my blog post on Grandparent visitation rights. If you are a Grandparent in Pennsylvania and want custody of your Grandchild pleas schedule an appointment with us today.

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Can My Custody Order Be Changed?

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If you have children and have previously been through the custody process with the Court it is likely that it resulted with a Court Order. A Court Order for custody is issued in a Custody proceeding. This Order will direct which parent has legal and physical custody. Legal Custody is the right to make decisions for your child. Decisions such as where they go to school, what doctors they see, if they are involved in any religious activities would all fall under legal custody. The Custody Order will specify if one parent has sole legal custody or if legal custody is shared. If parents have shared legal custody they must consult each other about decisions in their children’s lives. A Custody Order will also direct who has physical custody. Physical custody is who the children are physical with. An Order could direct that one parent has sole physical custody or that the physical custody is shared. If the physical custody is shared the Order will probably also set out a schedule as to when the children are with each parent.

If you have a Custody Order and circumstances have changed or new developments have occurred you might think that the Order needs to be changed because the situation has. That is ok. Custody is always modifiable. If you have a Custody Order and you are seeking it to be changed we can help you with that. We would file a Modification of Custody requesting that the Custody be modified. If you are in Pennsylvania and have a Custody Order that you need to have changed, please call our office for a free 15 minute consultation to discuss your options.

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Types of Custody

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If you have children, and are going through a divorce or separation a major thought on your mind is probably what is going to happen with the kids? Who is going to get custody? How is custody decided? What are the different types of custody schedules? These are all very valid and important questions and I know these thoughts can cause anxiety, fear and worry as well. This will give you a little overview on the types of custody in Pennsylvania to try inform you of more information and try and answer some of your questions.

First of all, there are two types of custody. There is legal custody and physical custody. Legal custody is the right to make decisions for child. Decisions such as where your child attends school, what doctors your child sees, if they are involved in any religious activities are all examples of what would fall under the category of legal custody. Usually legal custody is shared between parents, however in some circumstances legal custody may be solely awarded to one parent.

Next, there is physical custody. Physical custody refers to who the child is physically with. Typically, in any court order there would be an included physical custody schedule. The first kind of physical custody is sole physical custody. This is where one parent has physical custody of the child 100% of the time. Another form of physical custody is shared legal custody where parents share physical custody time. The two common schedules with shared physical custody are 50/50 or a primary/partial schedule. In a 50/50 physical custody schedule the parents share custody and each have the child 50% of the time. A common schedule for this is called a 2, 2, 3 schedule where one parent has the child Monday and Tuesday night, the other parent Wednesday and Thursday night and then the parents alternate week to week who has the child Friday through Sunday. There are other schedules that can be worked out as well. With a primary/partial schedule this is where one parent has physical custody time more than the other. An example of this type of schedule would be where one parent has custody every other weekend. A third custody arrangement could also be supervised visitation. This would mean that one parent would have custody of the child however the other parent has the right to visit with the child so long as they are properly supervised.

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Grandparent Standing for Custody/Visitation

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Section 5325 of the Domestic Relations laws sets out the circumstances under which grandparents and great-grandparents may petition for partial custody/visitation. One of three conditions must be met: (1) a parent of the child is deceased; (2) the parents of the child have been separated for at least six months AND don’t agree on whether the grandparent or great-grandparent should have custody/visitation; or (3) the child has lived with the grandparents or great-grandparents for at least 12 consecutive months provided a petition is filed within six months after the child is removed from the home.

Non-biological grandparents also have the right to seek grandparent visitation rights where they stand in loco parentis to one of the parents of the child and it’s in the child’s best interest. In loco parentis embodies an assumption of parental status as well as an actual discharge of parental duties giving rise to a relationship which is the same as between parent and child. It is also possible for grandparents to request primary custody under Section 5324 of the Domestic Relations laws if they stand in loco parentis to the child. Again, in loco parentis means more than just taking on a frequent caretaker position. Under Section 5324, a grandparent can also file where they are unable to establish in loco parentis but can establish an existing relationship with the child and that the child is at risk due to parental abuse, neglect, or drug/alcohol abuse.

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Grandparent Custody Rights

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Sections 5324 and 5325 of the Domestic Relations statute sets out the circumstances under which grandparents and great-grandparents may petition for custody/visitation. Section 5324 deals with partial custody or visitation and requires that at least one of three conditions be met: (1) a parent of the child is deceased; (2) the parents of the child have been separated for at least six months and do not agree on partial custody/visitation to a grandparent or great-grandparent; or (3) the child has lived with the grandparents or great-grandparents for at least 12 consecutive months provided a petition is filed within six months after the child is removed from the home.

Section 5325 deals with standing to request primary physical custody as well as legal custody. Grandparents must establish the relationship began with the consent of the parents, they are willing to assume responsibility for the child and the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity. After establishing standing, the best interests analysis that is conducted in all custody cases still applies and the court must weigh all relevant factors. Section 5328(c), concerning custody awards to grandparents and great-grandparents, requires the court to specifically consider amount of personal contact between the child and the grandparent prior to filing and whether an award of custody to a grandparent or great-grandparent would interfere with any parent-child relationship.

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Do I Need a Child Support Order?

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When two people have a child together, whether married or not, sometimes it just does not work out and they decide to separate. It is great when two parents who are no longer together have a strong co parenting relationship and can remain amicable with each other for the sake of their children. If you find yourself in one of those relationships you might think that you do not need a child support order because you and the other parent work everything out on your own and so far you have had no issues. While it may seem great that you are able to work everything out between the two of you, it is best to seek a child support order issued by the court.

Why would you want to get a child support order when you have been working it out yourselves? What happens if the payments that you have relied on and worked out between you two stop coming in. What course of action do you have? You call the other parent, you email them but no matter what you do they still are not receiving any financial assistance for your child. They keep telling you they will have it to you soon and then months go by and you have not received anything. By having a child support order you are protecting yourself from this scenario. In most child support orders, if the other parent is a W-2 employee, the child support will be attached to the other parent’s wages so as long as they are being paid you can be assured you will get your support payment. If there is an order and the payments are made directly to you and they stop paying you have options there as well if you have a support order. You can file for enforcement of the child support payments. Having a child support order protects and reassures you that the financial support you rely on for your child will not just disappear one day.

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Desperate for Divorce but Worried about Abuse?

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If you are currently married and in a physically or mentally abusive relationship, it can be a very tarrying situation that you might be desperate to get out of. You might be thinking of leaving or filing for divorce but have that voice in your head telling you it is not a good idea because of the potential reaction from your spouse. What if filing for the divorce causes the abuse to escalate when they find out? If your spouse already has a history of abuse towards you, the fear you have might take over and prevent you from following through with the decision to follow through with filing for divorce, and separating from them finally.

If there is a history of abuse you can file a petition for a Protection from Abuse Order while you prepare to file for divorce. To get a protection from abuse order you would first want to file with the court. Then likely, a Judge would issue a temporary order without the abuser being present while a future hearing date is scheduled. Both you and the abuser would then have to appear before a Judge at the later date. At this hearing either the abuser can consent to the Protection Order, or request to have a hearing where the Judge would hear testimony and make an order. These types of orders can last for any duration of time up to 36 months. If the abuser were to violate any such order they would be held in contemp. Consequences of a contempt violation can range from fines to jail time. When you are in an abusive marriage and desperate to get out but just fearful of what will happen if you try, a Protection from Abuse order can grant you that peace of mind to be able to file and get divorced with added protection from your abuser’s potential reaction.

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Support during Covid

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Both child and spousal support awards are primarily based on the income of the parties. Prior to establishment of an Order, both parties are directed to show proof of income and relevant expenses. With respect to income, this can include recent pay stubs, last filed tax return and W-2, disability payment statements, retirement payment statements, unemployment, etc. Relevant expenses may include health insurance premiums, mortgage payments, child care costs, and private school tuition. It is the responsibility of the parties to petition the court to review a previously entered support Order if circumstances (i.e. income of parties or expenses) change.

During this pandemic, many individuals have experienced changes in income and expenses. With many industries affected by various policies intended to slow the spread of coronavirus, hours have been cut or jobs lost. Where schools have closed, there could be new child care costs if both parents are still working outside of the home. Alternatively, child care costs may have been eliminated if a parent is now working from home and able to watch their child as well. Regardless of the nature of the change, the first step to take is to file a request for modification if you have a court-ordered support award. Second, the filing party should gather all the documentation reflecting the changes. It is also important to attempt to determine how long the new circumstances will last. For example, if you have a date that you are returning to work or that your children are returning to child care. The courts understand this is an unprecedented situation for all of us and are doing their best to balance the need for support with the current circumstances of the parties.

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Custody Exchanges during Covid-19 Pandemic

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Our country is still battling the spread of a new virus and with that, new questions as to custody exchanges in the event of confirmed Covid-19 diagnosis or suspected exposure. First and foremost, be compliant with your existing Order to the extent possible. This virus is not a reason to keep your child from seeing their other parent. If exact compliance with your Order is not possible, be reasonable in making necessary accommodations to permit shared custody to continue. It’s also key to try to be on the same page regarding best practices. Be prepared to discuss and model good behavior for your child(ren) in both homes including hand washing, wiping down surfaces, wearing a mask, and social distancing.

Be transparent and provide honest information with respect to any suspected or confirmed exposure to the virus and try to agree on what steps you will take to protect your child(ren) from exposure. The courts have provided some guidance in the event of confirmed Covid-19 diagnosis or display of symptoms. If the reporting party has custody at the time, they should maintain custody until the symptoms resolve. If the non-reporting party has custody at the time, they should keep the child(ren) until the other parent has recovered. An exception can be made if parent has work obligation and cannot provide adequate care for the child(ren), in which case the child(ren) should return to the other parent. If there is a temporary pause in your schedule because of diagnosis or displayed symptoms, endeavor to work with each other to maintain a relationship through other means such as Skype, Zoom or Facetime.

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What to do after adoption

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After your adoption hearing, you can take steps to update your child’s name and/or birth certificate, where necessary. To obtain a new birth certificate you will need to submit a request through Vital Records in the state that issued the initial birth certificate. If outside of Pennsylvania, check with the local office regarding their specific requirements. For Pennsylvania birth certificates, a Certificate of Adoption is forwarded by the court to Vital Records to alert them the adoption was finalized. You would then contact Vital Records with a request for a new birth certificate and submit the applicable fee. Pennsylvania presently charges $20 for a new birth certificate, unless you are a military member, in which case the fee can be waived. The adoptive parents’ names and child’s name after adoption should be included in the application for birth certificate. The completed application, ID and payment would then go to Vital Records.

Processing times for receipt of the new birth certificate vary. The average time for adoptions is currently five (5) weeks. These steps are for a child born in Pennsylvania. For additional information on requesting a new birth certificate through Pennsylvania visit: https://www.health.pa.gov/topics/certificates/Pages/Birth-Certificates.aspx

After receiving the new birth certificate and depending on the age of the child, you may also need to update records at school, the doctor’s office, Social Security, etc. You may need to present your certified Decree of Adoption from the court in addition to new birth certificate to verify legal name change. Additional certified copies of your adoption decree can be requested through the court at a nominal cost.

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