Grandparents are sometimes the most respected and revered people in a grandchild’s life. In some families, grandparents may only come on holidays, but in other families, grandparents are half-time or full-time caregivers. In families where the grandparents want to take over raising the children, can a grandparent get full legal custody of their grandchild?
Can Grandparents Sue for Custody in PA?
Every family structure is different. Sometimes, parents may not be fit to raise their own children. In families where one parent is deceased, the other parent may want to take the child away from grandparents, siblings, and other family. In these cases, you, as a grandparent, may have no choice but to sue for custody.
Under Pennsylvania law, grandparents may apply for custody of their grandchildren. Under Pennsylvania law, 23 Pa.C.S. § 5324, grandparents may qualify for standing to get court-ordered custody of their grandchild. “Standing” is the legal recognition of a right to sue. Not everyone can get standing to sue for child support, but grandparents may qualify.
First, if a grandparent has been acting as the child’s parent, they may be able to apply for custody. § 5324 allows anyone who “stands in loco parentis” standing to sue for custody. This is someone who is not legally the parent, but stands in their place. This could be a relative or foster parent who cares for the child over a prolonged period. If the grandparent is in loco parentis, they automatically qualify for standing to sue for custody.
If the parent is not in loco parentis, they must meet other qualifications to sue for custody. In order for this to apply, the grandparent must meet three requirements:
- The child’s relationship with the grandparent began with the parent’s permission or through a court order;
- The grandparent is willing to assume responsibility for the child; and
- One extra condition is met (discussed below).
For that extra condition, there are three possible choices. First, the grandparent can take custody if the child was ruled a “dependent child” under the Juvenile Act. This means that the court has found the child needs additional guidance, supervision, support, etc. (e.g. was abandoned by parents, is repeatedly truant, etc.). Second, a grandparent could take custody if the grandchild is at risk for “abuse, neglect, drug or alcohol abuse or incapacity.” Basically, if the parents are mistreating the child, the grandparent may take over. Lastly, if the child was removed from the parents’ home and has lived with the grandparent for 12 months, the grandparent can gain custody.
Only one of these three extra conditions must be met, on top of the other two conditions.
Can Grandparents Adopt in PA?
If the grandparent does not qualify for custody under any of the above justifications, they may still be able to adopt their grandchildren. Anyone can adopt any other (willing) person in Pennsylvania. For a grandparent to adopt, however, the ties must be severed with the birth parents.
If the parents want to keep their parental custody rights, the grandparent must sue for custody. This means they must meet the above requirements. Alternatively, if the parents are willing to give up custody, the grandparent could take over. If the parents are willing to break their own legal, custody bond with their child, they may agree to allow another to take over custody.
If a parent knows that they cannot provide for their child or wants the grandparent to raise their child instead, they can give up custody to the grandparent. This is helpful in many situations where the grandparent would otherwise be unable to sue for custody. Because Pennsylvania greatly protects the rights of a parent, it also protects the parent’s right to give up custody of the child to someone else who can take better care of the child. This does not require any standing determination; it merely requires the grandparent to demonstrate to the court that they will make good parents.
Typically, adoption by another party requires both parents to sever custody. For example, if one parent passes away, the other parent will still have custody. A grandparent cannot take over as the second parent without suing for custody. Unlike step parents who adopt their spouse’s children, grandparents cannot typically step in as the second legal parent.
Philadelphia Child Custody Lawyers
The Philadelphia family law attorneys at The Sadek and Cooper Law Offices represent parents and grandparents in custody battles throughout the greater Philly area, including the City of Philadelphia, Northeast Philadelphia, Delaware County, Bucks County, and Montgomery County. For a free consultation on your custody case, call our lawyers today at 215-814-0395.