THIRD PARTY CUSTODY RIGHTS

There are several groups of people, other than parents who have an abiding interest and concern for children that have sought custodial time with the children. These include Grandparents, Step-parents, Aunts, Uncles, and siblings. The Pennsylvania Courts have acknowledged the rights of persons who have acted in loco parentis, or who have acted in place of a parent, as many step-parents have, the right to have contact, even primary physical custody of the child or children, whether or not they are related by blood or marriage to the children. However, although the Supreme Court of Pennsylvania has stated that there is no presumption of a preference for the parents of the child, as there can be no presumptions in custody cases since the standard is always what is in the “best interests” of the child, third parties have an increased burden when opposed to actual biological parents. The rights of step-parents have been recognized in Pennsylvania since 1977.

Pennsylvania statutes have specific provisions for grandparents. Their rights to contact with a child survives a step-parent adoption. They also have partial custody rights if the child lived with them for at least twelve (12) months, the grandparent’s child is deceased, or the child’s parents are separated. However, there is caselaw concerning the provision of those statutes that requires that such partial custody does not adversely effect the child/parent relationship. One of our attorneys, Richard A. Katz, represented a parent in one of the few Appellate Court cases on this issue that is reported in Pennsylvania.

Grandparents also have rights to custody, even primary custody, if there is a danger of neglect or abuse due to drug or alcohol use by the parents and the grandparents have had a continuing involvement with the child. Again, there is no presumption in favor of the parents, but there is an increased burden on the grandparent seeking custody. The United Supreme Court struck down a Washington State statute that provided for grandparents rights as vague and over-broad. However, most analysts view the specifics in the Pennsylvania Statues as meeting the test of the Supreme Court.

Unfortunately, the Pa. Supreme Court has ruled on several occasions that siblings, aunts and uncles who have not acted in the place of a parent have no right to file for contact with the minor children. There simply is no statute that confers any rights to them, nor does the caselaw support any inherent right. This can be especially troubling when one of the parents is deceased, and the older siblings feel it best to intervene. Of course, the local child welfare agency, or Children and Youth Agency, should be notified to investigate any neglect or abuse of a child, no matter whether there is only one parent or two. The siblings or other close relatives, if it is established that there has been neglect or abuse that fits the Agency’s definition, can request that the children be placed with them (kinship care). The Agency, however, must agree or the children will be placed in foster care.

Also, in 1977, the Superior Court of Pennsylvania issued a decision granting, for the first time in Pennsylvania, a step-parent the right, in certain circumstances, the right to contact with his step-children. There the issue rested upon the assessment of the step-parent acting in loco parentis. Attorney Katz was involved with that case, as well.

As our society has become more and more fragmented, and isolated, there seem to be fewer opportunities for children to be taken care of by relatives in the area, or who have established a close relationship. We do not see many communities where everyone knows everyone else, and if the kids did something wrong, by the time they got home, someone else’s mother or father has called the child’s parent and they are in trouble as soon as they walk in the door. It may take a village, but there seem to be fewer and fewer villages.

If you feel that you should intervene in a child’s custody, it is best to consult with a lawyer familiar with these issues before asserting a position with the current custodian. If you would have no right to intervene, being able to stay close and have whatever contact you can is better than alienating the custodian to the point where you are unable to monitor what is going on. Children need as many people as possible that they feel love them and in whom the can confide.