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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Do Grandparent’s Have Visitation Rights to Grandchildren?

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If you are a Grandparent your Grandchildren are probably pretty important to you. You probably enjoy spending time with them, watching them learn and develop into the person they are becoming. However, what happens if you are being denied time with your Grandchildren by a parent? What if the parent refuses to let you see the child or have any contact with them what so ever? This can be a very difficult situation to be faced with. However, in Pennsylvania Grandparents do have rights to visit their Grandchildren.

In order to assert these rights however, certain circumstances need to be met. The first scenario where a Grandparent can file for visitation rights is when one of the child’s parents is deceased. The second scenario where a Grandparent can assert visitation rights with a child is when the child’s parents have been separated for at least six (6) months or have filed a divorce or separation action. The third scenario is if the child has lived with the Grandparent that is seeking the visitation, for at least 12 months. In any of these scenarios the Grandparent filing must demonstrate that partial custody or visitation serves the grandchild’s best interest and also does not interfere with the child-parent relationship.

If you are a Grandparent in Pennsylvania and are seeking visitation of your Grandchild please contact our office today 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 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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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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Timeline for Kinship Adoption

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The rights of the other biological parent will need to be terminated in connection with any adoption. Their parental rights can be terminated voluntarily or involuntarily. With voluntary termination the other natural parent will sign a consent to the adoption which is subsequently attached to the Petition for Adoption. There must be at least thirty (30) days between when the consent is signed and when adoption petition is filed with the court since there is a thirty (30) day revocation period. With involuntary termination, you will plead the applicable grounds for involuntary termination within your adoption petition. A filing fee is payable to the county at the time you file your petition for adoption. After filing the Petition, you will receive notice of when you are scheduled for your hearing. You will need to notify any party that is required to receive notice of the hearing per the adoption statutes in advance of the hearing.

With a kinship adoption the prospective parents will need to have three background checks completed prior to filing an adoption petition. Presently, the required background checks for Pennsylvania include (1) Child Abuse History Clearance; (2) PA State Police Criminal Record Check; and (3) FBI Criminal Background Check through the Department of Welfare. The results of these background checks should be attached to the adoption petition. A home study is not required. A hearing will be scheduled by the court within a few months from filing the petition. If heading straight to adoption hearing because natural parents consent to adoption the total process can be completed in a few months. If an involuntary termination hearing is required before the adoption hearing the process can take twice as long.

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Role of Adoptee

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In Pennsylvania any individual may be adopted regardless of their age or residence. Additionally, any individual may become an adopting parent. Consent of the adoptee is required in all instances where the adoptee is twelve years of age or older. The prospective parent(s) must obtain certain clearances whenever the adoptee is a minor. The adoptee does appear in court for the final adoption hearing. The Judge may have questions for the adoptee as to their relationship with prospective parent(s).

In a contested hearing where the adoptee is a minor, an attorney is appointed to represent their interests. If a name change is sought where the adoptee is an adult, the adoptee must submit a copy of their fingerprints with the adoption petition. Fingerprints can be obtained from your local police department. The adoptee will also need to obtain background checks from the Prothonotary, Clerk of Court, and Recorder of Deeds for each county of residence for five (5) years prior to your filing. Finally, notice of the adoption hearing must be published in a newspaper of general circulation as well as the Law Reporter regarding the proposed name change. Proof of the record checks and publication should be offered as evidence at the adoption hearing. Name changes are not permitted in the event of certain criminal convictions.

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Reporting as Guardian

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The court may appoint a guardian for a person or for an estate. If appointed as a guardian, there are annual reporting requirements to comply with. The report of a guardian should be submitted to the county orphans’ court. The report for guardian of an estate will include sections regarding any income, expenses or assets of the estate as well as any compensation for the guardian, attorney’s fees or legal costs.  The report for guardian of a person inquires as to the individual’s residence, current medical status, and guardian’s opinion regarding necessity for ongoing care.

Reports of a guardian are subject to a filing fee in submitted to the orphans’ court on paper. There is, however, the option to request that the filing fee for the report be waived based on financial circumstances. Reports of a guardian can now be submitted electronically using the Guardianship Tracking System (GTS). There is not a filing fee when using the online form. The due date for the guardian report is the anniversary of being appointed guardian and every year thereafter. A final report should be filed when the guardianship is terminated or a guardian is replaced.

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Guardianship Changes

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Guardianship of an incapacitated person refers to the authority to make decisions on behalf of an adult individual who has been adjudicated as such by the court. The standard for incapacity involves an analysis of whether the individual can manage their financial resources and/or meet essential requirements for their own health and safety. The first step for a party interested in pursuing guardianship of someone is to file a petition with the court. At the time of filing the petition, the proposed guardian must now submit record of criminal background search from the Pennsylvania State Police. Additionally, if the incapacitated person suffers from mental health issues, a notice of mental health commitment form should be included.

The opinion of a medical expert regarding the extent of the incapacity and the potential necessity for a guardian is required. The Rules now provide for the expert to complete an expert report which may replace requirement of physical testimony in court. The Petitioner has the burden to prove incapacity by clear and convincing evidence. Notice of the hearing and a copy of the petition must be served on the individual for whom guardianship is sought (Respondent) explaining in plain language the possible ramifications of the forthcoming legal proceedings. Notice must also be given to additional interested parties such as family members.  By April M. Townsend

 

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