On May 4, Gov. Tom Wolf signed Act 21 of 2018 into law. Known as SB 844, this act amends two sections of the Pennsylvania Domestic Relations Code with regard to standing in child custody proceedings. Those two sections are 23 Pa.C.S.A. Section 5324 and Section 5325(2).

The amendments to Section 5324 allow for any individual, not just grandparents or blood relatives, to seek custody of a child if the individual can establish by clear and convincing evidence: that the individual has assumed or is willing to assume responsibility for the child; that the individual has a “sustained, substantial and sincere interest in the welfare of the child;” and neither parent has any form of care and control of the child.

It bears noting that the amendments do not allow anyone to seek custody of any child at any time. Rather, certain parameters must be met. First, both parents need to be out of the child's life. That may be caused by death, incarceration or just apathy. Second, the individual seeking custody must have a history with the child. That history needs to be “sustained, substantial and sincere.” The act specifies that these “three S's” are evaluated based on the “nature, quality, extent and length of the involvement by the individual in the child's life.”

Additionally, the statute merely gives these individuals standing in custody cases, not actual physical or legal custody, or even a preference in custody proceedings. Additionally, the individual seeking custody must establish these three criteria to the court by clear and convincing evidence. While most first level custody proceedings in the commonwealth are addressed by custody conciliators or masters, one would assume that petitions or complaints asserting a third party's standing would first go to a Court of Common Pleas judge for a determination as to whether or not the filer has standing to proceed to a conciliator or a master.

Additionally, the new statute specifically excludes dependency proceedings or permanent legal custody situations as outlined under the Juvenile Act.

The second portion of the act modifies 23 Pa.C.S.A. Section 5325(2), and is an attempt by the legislature to address the finding by the Supreme Court in D.P. v G.J.P., 146 A.3d 204 (Pa. 2016), that the prior version of Section 5325(2) was unconstitutional. The new language changes the criteria for grandparents' standing from circumstances where the parents have merely been separated for a period of six months or have commenced and continued a proceeding to dissolve their marriage, to a “relationship with the child that began either with the consent of a parent of a child or under a court order and where the parents of the child: have commenced a proceeding for custody; and do not agree as to whether the grandparents or great-grandparents should have custody under this section.” Under the act as modified, if both parents agree that the grandparents or great-grandparents should not have any form of custody, the grandparents will not be granted custody. This addresses the equal protection issue raised in D.P. 

The Senate memorandum introducing SB 844 specifically states that these amendments are intended to address fallout from the opioid and heroin epidemic in the commonwealth. A factual example is given. In the example, the mother is not involved in her child's life. The child, father and, potentially, the father's girlfriend may have drifted in and out of the paternal grandparents' home, ultimately establishing their own household. The paternal grandparents chose not to file a complaint seeking to establish custody over the grandchild after the child moves from the grandparents' home. After a relatively short period of time, the father suffers an overdose and dies, leaving the child in his girlfriend's care. The girlfriend now stands in loco parentis as to the child, essentially by default. Under the prior language of Section 5324 and Section 5325, assuming that the father, child and girlfriend have been out of the paternal grandparents' home for six months or more, neither the maternal nor paternal grandparents had standing to seek custody of their grandchild because they no longer stand in loco parentis.  Further frustrating the grandparents in this scenario, as long as the child is being cared for and minimal indicia of care are demonstrated, the child is not considered “dependent” as defined by 42 Pa.C.S.A. Section 6302, and the local Department of Children, Youth and Families will not get involved.

Additionally, the opioid epidemic is real and has a quantifiable effect on grandparents raising their grandchildren. Some quick facts: 4 percent of children in Pennsylvania live with a relative, with no parent present; 8.8 percent of Pennsylvania children under 18 live in homes with grandparents or other relatives; 7.2 percent of Pennsylvania children live with grandparents; and 1.6 percent of Pennsylvania children live with other relatives. See, Grandparent “Rights” in the Twenty-First Century, Dana E. Prescott, presentation to the Doris Jonas Freed Inn of Court, 3/20/18).

More specific to opioids, sales of prescription pain relievers in 2010 were four times those in 1999. Correspondingly, overdose death rates in 2008 were nearly four times the 1999 rate.  Four in five new heroin users started out misusing prescription painkillers and 94 percent of respondents in a 2014 survey of people in treatment for opioid addiction said they had chosen to use heroin because prescription opioids were far more expensive and harder to obtain.

The “three S's” of the portion of SB 844 relating to Section 5324 have some background in the prior law. The specific words “sustained, substantial and sincere” come from Kellogg v. Kellogg, 646 A.2d 1246 (Pa. Super. 1994), a third-party custody case with a unique fact pattern. When the prior version of Section 5324 was enacted in 2010, the effect was to limit third-party standing in custody cases, however, nothing specifically overruled Kellogg, so it remains good law. Now, with Act 21, the language of Kellogg becomes both the decisional and statutory law. Additionally, the new language of Section 5325(2), draws on other portions of both Sections 5324 and 5325, but more specifically addresses the equal protection issue raised in D.P.

Act 21 states that it is effective in 60 days, which would be July 3, 2018; however, the amendments specific to Section 5324 apply to all custody proceedings irrespective of whether the proceeding was commenced before, on or after the section's effective date. So, in a factual scenario similar to that in the Senate memorandum noted above, if the deceased father's girlfriend seeks custody before July 3, 2018, grandparents may file to intervene in that custody proceeding. There is no reason for them to wait until July.

For those following the modifications of Section 5324 with trepidation, your fears may not be justified. While any new statute will stimulate the creative among us to file something they may not have before, the new amendments, at least conceptually, revert to case law from 1994. As to the amendments to Section 5325, the new section puts things back to the way they were before D.P. in 2016, with some new restrictions. Thus, the bottom line is that, while Act 21 introduces some new concepts, it does not appear as radical a transformation as some may have forecasted.

Lawrence (Skip) Persick is a partner at Lamb McErlane. He represents clients involved in divorces, custody disputes, child support matters and adoptions. His experience also includes cases dealing with juvenile dependency and the termination of parental rights. He can be reached at [email protected] or 610-430-8000.