Grandparents custodial rights were clearly defined by the enactment of the 2011 custody statute and modifications to the Rules of Procedure. A grandparent may file for custody only if he or she is “in loco parentis” to the child (acting as parent to the child), or if he or she can prove that the relationship with the child began with the consent of the parent of the child or pursuant to a court order and one of the following circumstances exist: the child resided with the grandparent(s) for 12 months, or the child has been determined to be a dependent child (relating to juvenile matters), or the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or mental illness.
A grandparent may petition the court for partial custody or visitation under the following circumstances: if the parent of the child is deceased, or the parents of the child have been separated for at least 6 months or have commenced a divorce proceeding, or if the child has resided with the grandparent(s) for a period of at least 12 months and is subsequently removed from their home by the parent(s).
If a child has resided with a grandparent(s) for a period of 12 months and is subsequently removed from the home by a parent(s), the grandparent must file a petition the court for custody or visitation within six months after the removal of the child from the home.
The court will consider the following factors in entering an order awarding a grandparent(s) partial custody or visitation:
- the amount of personal contact between the child and grandparent(s) prior to the filing of the action;
- whether the award interferes with the parent-child relationship; and
- whether the award is in the best interest of the child.
If a child has been adopted by a person other than a stepparent or grandparent, all custody or visitation rights which may have been granted prior to the adoption shall be automatically terminated upon the adoption.
Unlike parental rights, custody rights are temporary and can be modified at any time upon petition to the court. For example, a grandparent may have legal and physical custody of a child on a temporary basis while a parent is incarcerated, hospitalized or deployed overseas. A grandparent(s) may share custody of a grandchild with one or both parents, if appropriate.
The Custody Rules now require a party commencing an action or filing a petition to modify an existing custody order to verify any criminal or abuse history of the party and all members of the party’s household. In addition to violent crimes and domestic abuse, the verification also includes any convictions for DUI or possession of a controlled substance, although ARD or similar diversionary programs are not required to be disclosed.
By Rochelle Bobman, Esquire