In Pennsylvania, a parent of a minor child may file an
action for physical and/or legal custody of the child. In certain circumstances, this right is also extended
to grandparents and third parties who stand in
loco parentis to the child. Therefore,
though it is presumed the parent has a right to custody, it may be forfeited
if, by convincing evidence, the best interest of the child is served by
awarding custody to a third party.
A person who stands in
loco parentis has created a parent-like relationship to the child
sufficient to warrant providing that individual the right to seek continued
contact with the child. This status can
be conferred upon any third party, including, but not limited to, current or
ex-spouses or partners, friends, siblings, and distant relatives. The Pennsylvania Supreme Court in the case of
T.B. v. L.R.M. provided a succinct definition of how a third party may
establish a parent-like relationship:
‘[I]n loco parentis’ refers to a person who puts oneself in the situation of a lawful parent by assuming the obligations incident to the parental relationship without going through the formality of a legal adoption. The status of in loco parentis embodies two ideas: first, the assumption of a parental status, and, second, the discharge of parental duties. The rights and liabilities arising out of an in loco parentis relationship are, as the words imply, exactly the same as between parent and child.
567 Pa. 222 (2001).
However, because Pennsylvania seeks to protect families from
the intrusion of third parties, this status cannot be conferred onto a third party
in defiance of the parents’ wishes and the parent/child relationship. In other words, the natural parent must first
consent to, or fail to object to, the creation of a parent/child relationship for
the third party to serve as a parent-like role recognized by the court. But once a parent has explicitly or
implicitly consented to the creation of the parent/child relationship, then
such parent’s subjective thought process, such as doubts as to the third party’s
commitment to being a parent or intention to raise the child as a single
parent, are all irrelevant to the question of whether the third party stands in loco parentis.
This has some serious implications for parents given the
financial struggles and complex relationships experienced today. Prior to moving in with others or placing the
child in another’s care, parents should consider whether doing so will confer
the status of in loco parentis to a
third-party. Parents may also make the
mistake of believing that since both natural parents have active involvement in
their child’s life, a third party cannot create a parent-like role. This is not the case in Pennsylvania, where
the courts have ruled third parties may acquire the status of in loco parentis even where both natural
parents serve active roles in the child’s life.
This becomes even more complicated in the case of
grandparents. The courts have made
distinctions between grandparents who stand in
loco parentis and grandparents who serve as caretakers assisting their
child in the parenting of their grandchild.
This has arguably increased the burden upon which grandparents seeking
custody of their grandchild must prove the establishment of a parent-like role
with their child’s express or implied consent.
For those grandparents who are unable to prove they stand in loco parentis, Pennsylvania has
enacted specific provisions to provide them with alternative means to seek
custody. To pursue any form of physical
or legal custody, grandparents who do not stand in loco parents must prove (1) they assumed or are willing to
assume responsibility for the grandchild; and (2) any of the following
conditions are met: (a) the grandchild is declared to be a dependent in a
juvenile proceeding; (b) the grandchild is at risk due to parental abuse,
neglect, drug or alcohol use, or incapacity; or (c) the grandchild has lived
with the grandparents for at least the past 12 consecutive months and was
removed from the home by the parents.
Grandparents who do not meet the elements for standing to
sue for any form of physical or legal may still have the means to insert
themselves into a custody dispute if they meet the elements for standing to sue
for partial custody or visitation rights.
This standing is further extended to great-grandparents who do not stand
in loco parentis to the child. Standing to sue for partial custody or
visitation rights is granted in the following circumstances: (1) to the parents
or grandparents of a deceased parent of the child; (2) where the natural
parents of the child have commenced a custody proceeding and do not agree
whether the grandparents or great-grandparents should have custody where such
grandparents or great-grandparents have a relationship with the child; or (3)
the grandchild has lived with the grandparents for at least the past 12
consecutive months and was removed from the home by the parents.
These custodial rights granted to grandparents and great-grandparents
might cause some parents to worry. The
good news is Pennsylvania is disinterested in violating parents’ constitutional
rights to have a fundamental liberty interest in raising their children as they
see fit. The courts will not grant custody
or visitation rights to grandparents or great-grandparents when both parents
have agreed the grandparents or great-grandparents should not have any form of
custody.
To understand the complexities around modern child custody
disputes and the rights conferred to others in the best interest of the child,
it makes sense to consult with legal counsel.
Whether you are a parent, grandparent, stepparent, or distant relative,
you want to understand your rights in child custody disputes.