The definition of a “parent” was once pretty set in stone. You were a parent if you either were the biological parent of that child, or you were a parent if you’d obtained parental rights through the process of adoption.
But in recent years the courts have had to adapt to a vast array of family structures. For example, despite cases which limit grandparent’s rights, the State of Pennsylvania does recognize some exist. And across the country, debates about caregivers who serve in loco parentis continue to rage. In some cases even unmarried partners with no adoptive or biological claim to the child have been granted visitation rights when courts found that person to have served in a parental relationship with that child to the extent that denying contact could be harmful to his or her best interests.
In certain circumstances grandparents may seek visitation rights. You may have a case for seeking visitation if the child lived with the grandparents for twelve months or more, and then is removed from the home by the parents.
In the past, grandparents could also seek visitation if the parents had been divorced or separated for up to six months. However, the Pennsylvania case D.P. v. G.J.P. limited those rights.
In some instances grandparents may even be eligible to seek physical or legal custody over children they have helped to raise, especially if the parents have been absent for six months or more, or if the biological parents present a threat to the child. This happened most recently in the case MJS v. BB v. BB, ___ A.3d ___, 2017 Pa. Super 327 (Oct. 17). This guide from the PA Institutional Law Project covers these special cases in more depth.
In Loco Parentis Cases
There are many family arrangements which create scenarios in which a child receives care from someone who is neither biologically related nor an adopted parent. This could be a live-in girlfriend or boyfriend, a step-parent who never formally adopted the child but who acted as that child’s parent long-term before the dissolution of the second marriage, or even a relative who is not a parent like an aunt or an uncle, or some other individual who ends up taking a long-term interest in the child and who fills the role typically filled by parents. Even neighbors and teachers have at times stepped in to care for children when biological parents are unable or unwilling to do so.
The Superior Court of Pennsylvania has defined the in loco parentis status as follows:
“A person who puts himself in the situation of assuming the obligation incident the parental relationship without going through the formality of a legal adoption.”
Grandparents who are attempting to secure custody are also making an in loco parentis argument.
What You Need to Know
Right now, in loco parentis custody and visitation concerns are some of the most contentious and ever-shifting issues in family law. A few caveats seem to be emerging, both through the body of Pennsylvania case law and in cases across the country.
First, in loco parentis does not happen simply by virtue of babysitting the child a great deal, or being around the child a great deal. However, if you live with the child you may have grounds for an in loco parentis claim even if the parent also lives with you. The standard is whether the claimant has either shared or assumed parental duties.
Second, the law still favors parents over third parties. The consent and knowledge of the parent is required. However, consent can be strongly implied. If the parent leaves a child at your house and disappears for months, a strong argument can be made for the parent’s consent whether it was given in verbal or written fashion.
See this article from The Legal Intelligencer to get an in-depth rundown of some of the most recent cases.
Third, if you want to assert parental rights you’d best be ready to assert parental responsibilities. For example, many courts across the nation have granted third-party visitation if that same third-party is willing to pay child support just like any other non-custodial parent. If you are pursuing an in loco parentis claim you may vastly strengthen your case by expressing this willingness and ability to the courts.
One thing is certain; going it alone will most certainly ensure you don’t get the outcome you want. If you’re either pursuing an in loco parentis claim or defending against one you need a skilled, experienced legal team on your side. Reach out to Sadek and Cooper to start your case today. We will be your compassionate advocates in this tough, emotional case.