Grandparents’ Legal Standing for Child Custody Rights in Pennsylvania

Unfortunately, do to neglect, substance abuse, or other issues with their own child, a grandparent may need to step up to the plate in court to protect their grandchildren from danger.  Cases like this are tragic, but they sadly happen fairly regularly in our area.  Often, though, once the grandchild is secure in the loving and caring home of their grandparents via court order, the natural parent has an opportunity to recover, maintain regular visitation with the child, and the family will actually reconcile.

The law places several hurdles in front of grandparents prior to formally seeking custody in court.  Grandparents have legal standing (the ability to file suit in a legal matter and participate in a case) in Pennsylvania for obtaining formal custody of minor children as follows, according to section 23 Pa.C.S. 5324:

Standing for any form of physical custody or legal custody:

The following individuals may file an action under this chapter for any form of physical custody or legal custody:

    • (1) A parent of the child.
    • (2) A person who stands in loco parentis to the child.
    • (3) A grandparent of the child who is not in loco parentis to the child:
      • (i) whose relationship with the child began either with the consent of a parent of the child or under a court order;
      • (ii) who assumes or is willing to assume responsibility for the child; and
      • (iii) when one of the following conditions is met:
        • (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.

     A person in loco parentis is one who means to put him or herself in the situation of a   lawful parent to a child with reference to  the office and duty of making provision for the child, or one who actually assumes the obligations incident to the parental relation, without going through the formalities necessary to a legal adoption.  The assumption of the relation is a question of intention, which may be shown by the acts and declarations of the person alleged to stand in that relation.  When a person stands in loco parentis to a child, his or her rights, duties, and liabilities are the same as those of the lawful parent.  Pennsylvania Law Encyclopedia.

So, if a grandparent is currently acting as a parent (in loco parentis) to their grandchild as defined by law, they may seek formal custody of their grandchild without delay.  If not, they have to meet the test outlined in part three of the statute prior to filing in court.