Grandparents' Rights in Child Custody Getting More Difficult to Pursue

Cases involving grandparents seeking any form of physical custody of their grandchildren can be tough, especially in situations where both parents are in league against allowing children to have a relationship with their grandparents. If both parents do not want a grandparent in their children’s lives and are otherwise fit parents, courts in Pennsylvania have previously recognized the parents’ right to decide the role, if any, that grandparents may play, as in Herron v. Seizak, 321 Pa.Super. 466, 468 A.2d 803 (Pa. Super. 1983), and in Helsel v. Puricelli, 2007 Pa.Super. 144, 927 A.2d 252 (Pa. Super. 2007). While there are avenues in the current child custody statute, 23 Pa.C.S. Sections 5324 and 5325, setting forth grandparents’ ability to obtain either primary or partial physical custody of their grandchildren, the current law, amended in November 2010, added a new requirement to the previous statute, 23 Pa.C.S. Sections 5311 through 5314, and otherwise re-organized the previous sections detailing grandparents’ rights and made it somewhat more difficult to petition and possibly to obtain custody of grandchildren.

In the previous version of the custody statute, among the reasons that grandparents were generally permitted to petition for some form of physical custody were: if a parent was deceased; when the parents were in divorce proceedings; parents separated for longer than six months (not in divorce); or when a child had resided with a grandparent for 12 months or more and was removed from the grandparents’ home by the parents, as in Hiller v. Fausey, 588 Pa. 342, 904 A.2d 875 (2006) (grandparent had standing when the parent of child was deceased); and Schmehl v. Wegelin, 592 Pa. 581, 927 A.2d 183 (2007) (grandparent had standing when parents of child divorced). Now, in addition to the other facts that grandparents must demonstrate in seeking custody, the current statute adds a strict deadline to when grandparents must file with the court in situations where the children have resided with the grandparents for 12 months or more and then were removed by the parents. As such, in just the last five years grandparents have seen at least one opportunity to demonstrate standing to file for custody of grandchildren diminish by an act of the legislature by virtue of the new deadline requirement. This is not news. However, and as will be seen, grandparents needing to obtain custody of their grandchildren were just thrown a major curve ball.