PA Superior Court Expands Custody Rights of Grandparents

In a victory for grandparents, the Superior Court of Pennsylvania has interpreted the Child Custody Keith E. KendallAct broadly, to grant standing to grandparents of children born to parents who have never been married to each other. In the recent case of L.A.L., v. V.D, 2013 PA Super 212, 2013 Pa.Super. LEXIS 1692, the Court determined that the provision of the law that grant standing to grandparents to pursue their legal rights to continue to be a part of the lives of their grandchild(ren) of unwed parents should be broadly interpreted.

Before a party can file a lawsuit, the party generally must be able to demonstrate a close enough connection to the subject matter of the action to justify the party's pursuit of a legal remedy pertaining to the subject matter. This connection is referred to as "standing." In many cases standing is assumed, based upon the obvious connection of the parties to the subject matter of the legal action.

A lack of "standing" to pursue a legal action can lead to the dismissal of the legal action. Many laws - including the Child Custody Act - specifically require that a party be prepared at the outset to demonstrate, and even plead that they have the necessary "standing" to file a claim pertaining to the subject matter of the claim - in this case, their grandchildren.

The relevant language of the Child Custody Act that requires a showing of standing provides that: "[G]randparents . . . may file an action under this chapter for partial physical custody or supervised physical custody in the following situations: . . . (2) where the parents of the child have been separated for a period of at least six months (emphasis in original), or have commenced and continued a proceeding to dissolve their marriage."

Before this case was decided, many believed that because the emphasized language was followed by language referring to "marriage," the emphasized language meant that the parents of the child had to be married prior to the referenced six month "separation." This interpretation of the language could deprive many grandparents from exercising custody rights of children born out of wedlock, because they lack standing to protect those rights.

In the L.A.L. v. V.D. case, the Superior Court was asked to review the lower court's dismissal of a custody action filed by the grandparents of children of unmarried parents. The lower court had dismissed the action filed by the grandparents, because it interpreted the referenced language of the Child Custody Act to require a failed marriage and subsequent separation of the parents of the grandchild(ren).

The Superior Court disagreed with this narrow interpretation of the law, which would require a marriage between the parents of the child(ren) in order for grandparents to be able to pursue a continuing relationship with their grandchild(ren). The Superior Court reasoned that because a prior interpretation of a similar former section of the Child Custody Act recognized the standing of grandparents to seek custody or visitation of a child born out of wedlock, the new section must likewise grant standing to grandparents in the same situation.

The Superior Court ultimately decided that ". . . Section 5325(2) . . . grants standing in custody proceedings to grandparents of children born out of wedlock." However, in reaching this decision, the Court also found that the lower courts must still evaluate whether the grant of partial custody and/or visitation rights is in "the best interests of the child," which is the overriding determinant in all custody disputes.

In those cases where standing is found to exist, the lower courts are still required to consider 3 factors specifically identified in the Act, before awarding custody to grandparents and/or great-grandparents: (1) the amount of personal contact between the child and the party prior to the filing of the action; (2) whether the award interferes with any parent-child relationship; and (3) whether the award is in the best interests of the child. The lower courts must then consider 16 factors contained in a non-exhaustive list found in the Act, in generally determining the best interests of the child.

This decision is a victory for advocates of grandparents' rights, but the Child Custody Act, by giving grandparents of children born out of wedlock "a foot in the courthouse door." However, in order to exercise of their custody rights, and to determine to what extent they may do so, grandparent(s) must be prepared to also demonstrate no harm to the child, and little or no impact on the parent-child relationship, in their exercise of custody rights.

Article written by Attorney Keith E. Kendall
Phone: 717-657-7770 | 866-643-7036

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