Grandparent's Rights to Time with their Grandchildren

by Harris J. Resnick, Esq.

It goes without saying that grandparents love to spend time with their grandchildren. With traditional, intact families this is not usually a legal issue. Even with most dissolved marriages, this is not an issue as the grandparents see their grandchildren during their child (mother or father's) time with the children and there simply is no issue and no need for court involvement. However, in some cases, the grandparents are not able to work out an informal arrangement.

This subject is covered in Title 23, Domestic Relations of the Pa. Statutes. There are several key definitions to keep in mind. Per Section 5302: Visitation is the right to see the child but not to remove the child from the custodial parent's control. Partial Custody is the right to take the child out away from the custodial parent for a specific amount of time. Physical Custody is the actual possession and control of a child.

There are three key sections of Title 23 regarding grandparent's rights. Section 5311 deals with grandparent rights when their child is deceased. Section 5312 deals with the situation where the parent's marriage is dissolved or the parents are separated and finally, section 5313 concerns the situations where a grandchild has resided with his grandparents for 12 months or more.

In any situation where the grandparents are petitioning for time with their grandchildren the Court will be looking at three things: The amount of contact the grandparents had with their grandchild before filing the petition, whether continued contact with the grandparents would interfere with the existing parent-child relationship and finally, as in all custody cases, the best interests of the child.

In recent years there has been some, but not enough, movement to increase grandparent's rights. In 1996 section 5313 was amended allow grandparents to petition for physical and legal custody as opposed to the previous reference to partial custody and visitation. In addition, it now specifically addressed the issue of grandparent's standing in custody matters. Previously, many grandparent petitions were shot down on a lack of standing argument.

Section 5313(b) now reads: Physical and legal custody. – A grandparent has standing to bring a petition for physical and legal custody of a grandchild. If it is in the best interests of the child not to be in the custody of either parent and if it is in the best interests of the child to be in the custody of the grandparent, the court may award physical and legal custody to the grandparent. This section applies to a grandparent:

1. Who has genuine care and concern for the child
2. Whose relationship with the child began with the consent of a parent of the child or pursuant to order of court; and
3. Who for 12 months has assumed the role and responsibilities of the child's parent, providing for the physical, emotional and social needs of the child or who assumes the responsibility for the child who has been determined to be a dependent child pursuant to 42 Pa. C.S. Ch.63 (relating to juvenile matters) or who assumes or deems it necessary to assume responsibility for a child who is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or mental illness. The court may issue a temporary order pursuant to this section.

Last year, a grandmother used the 1996 amendments to section 5313 to gain custody of her granddaughter after the child had been declared dependent and placed in the custody of the local Children and Youth Agency. R.M. v. Baxter ex rel T.M. 777 A. 2 nd 446 (Pa. Supreme Court) The Supreme Court viewed the statute broadly to hold that it automatically granted standing to a grandparent to seek physical and legal custody of a grandchild.

However, in another leading case, Douglas v. Wright , 801 A.2 nd 586 (April 15, 2002) the Superior Court, while allowing the grandparents in this very specific case limited partial custody rights on the death of their daughter, the mother, the Court went on to state: “In a dispute between a parent and a third party, including a relative such as a grandparent, the parent has prima facie right to custody which will be forfeited only if convincing reasons appear that the child's best interest will be served by an award to a third party…as the amount of time requested moves the visit further from a visit and closer to partial custody, the reasons offered in support of the request must become correspondingly more convincing.” At page 591 quoting from Johnson v. Diesinger , 404 Pa. Super. 41, 589 A2nd 1160, 1164 (1991) (quoting Commonwealth ex rel. Zaffarano v. Genaro , 500 Pa. 256, 455 A2nd 1180 (1983).

In Douglas , the mother and father had been divorced when mother died in an automobile accident. While alive, mother had primary physical custody of the children and they spent a considerable amount of time with the grandparents who lived nearby.

In a case of grandparents versus a third party such as a Children and Youth Agency or foster parents the 1996 amendments to Section 5313 plus last year's decision in Baxter , have leveled the playing field in favor of grandparents. However, in a case of grandparents versus one or both of the natural parents, they have a heavy burden of proof. As indicated above, the Courts will look to the amount of prior contact the grandparent's had with the children prior to the petition, the effect grandparent contact will have on the existing parent child relationship and of course the best interests of the child.

Thus, any practitioner considering filing a grandparent's custody/partial custody/visitation case should first explore in detail, how much contact the grandparents have had with the children. Grandparents often do the “fun” things with their grandchildren, such as trips to the zoo or the movies and that is fine. But did your clients help them do their homework, take them to the doctor or dentist, accompany them to religious services? The more contact and the more the contact covers the other obligations of parenting, the more likely they will prevail for substantial contact after a court hearing. But always remember, they may not hinder or appear to hinder the existing parent child relationship. If your case involves grandparents who are great for helping their grandkids with the homework, etc. but they are obviously embittered against their mother who has primary custody, you have a very tough case on your hands.

Periodically, bills have been introduced in the state legislature to further increase grandparent's rights. In this author's opinion a radical change is unlikely. In 2000 the United States Supreme Court, in a rare family court case, ruled on the issue of grandparents rights. The state of Washington had a statute permitting “any person” to petition for visitation of children. The Court found that the statute was impermissibly broad and infringed upon the fundamental right of a parent to make decisions concerning her child. Troxel v. _ Granville , 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2 nd 49. In the author's opinion, Pennsylvania 's existing statutes on grandparent's rights are sufficiently specific and place the burden upon the grandparents such that they will survive any constitutional challenge .

Published in the Spring 2003 Montgomery Bar Sidebar