Be Careful About Agreeing that Grandmother Should Have Custody of Your Child. Once You Agree it is Hard to Undo

Mother and Father have Child. When Child is 5-months old, Father, who suffered from severe mental health issues, committed suicide. Father’s mother, i.e., the Child’s Paternal Grandmother, sued Mother for partial physical custody pursuant to 23 Pa.C.S. §5325 (1) which permits a grandparent or great-grandparent to sue for partial physical custody or for supervised partial physical custody of their deceased child’s Child. Mother agreed and the parties entered a Consent Order whereby Paternal Grandmother would have supervised partial physical custody every other Friday from 5:00 P.M. to 6:00 P.M. at Mother’s home.

Paternal Grandmother faithfully exercised her custodial rights for two years. When COVID hit, the parties agreed to suspend the in-person supervised partial physical custody and replace it with a phone call. Sometime thereafter Paternal Grandmother requested a resumption of the in-person supervised partial physical custody. Mother denied. Paternal Grandmother filed a Petition to Modify Custody Order requesting the visits resume and that they not be supervised. Mother filed a cross-petition to suspend Paternal Grandmother’s custodial rights alleging that the Child and Grandmother failed to develop a bond and that the Child identifies Mother’s Fiancé as his father and his parents as the Child’s paternal grandparents.

The Trial Court granted Paternal Grandmother’s Petition for Modification of Custody Order and awarded Paternal Grandmother unsupervised partial custody on the first Saturday of each month from 10:00 a.m. until 5:00 p.m., as well as several collateral provisions. So, Paternal Grandmother got more custody than she had pursuant to the original Consent Order she and Mother had entered into at the beginning of the case and before Mother refused to resume the every other one and half hour Friday visit. (It is not clear why Paternal Grandmother did not also file a Petition for Contempt because Mother refused to resume the in-person visits that were part of the Custody Order).

Mother testified the reason to suspend Paternal Grandmother’s visitation was because she wanted to end what she characterized as an unproductive, unsubstantial relationship between Paternal Grandmother and the Child. However, Mother had no evidence on that point. Mother’s testimony about the harmful effect Father’s suicide had on her had nothing to do with the Paternal Grandmother’s relationship with the child. And, it appeared the Child had a positive relationship with the Paternal Grandmother.

Most important to the trial court was that Mother allowed the Paternal Grandmother-Child relationship to commence via the Consent Order and Paternal Grandmother faithfully exercised her rights under the agreement and established a bond with the Child. This is the most important fact the trial court considered when it resumed and expanded Paternal Grandmother’s custodial time with the Child.

Mother also argued that the award of custody to the Paternal Grandmother “interferes with the parent-child relationship” in contravention of Section 5328(c)(1)(ii). The Custody Act places the burden on the grandparent to demonstrate that partial custody or supervised physical custody is in the Child’s best interest and will not interfere with the parent-child relationship. Mother argued that awarding custody to Paternal Grandmother interferes with Mother’s decision to create a new family with her Fiancé and his family, to inform the Child that the Child’s father is Mother’s Fiancé and not to tell the Child about the Child’s biological father. According to Mother, the partial custody award interferes with her parental right to decide what to tell the Child and when.

The trial court noted that Paternal Grandmother had not violated Mother’s wishes about what to tell the Child and when about the Child’s father. Further, the Superior Court noted that Paternal Grandmother has promoted the parent-child relationship and has been supportive of Fiancé and supports his adoption of the Child. Furthermore, the Superior Court noted about Paternal Grandmother:

“In her testimony, Grandmother was complementary of Mother and Fiancé. Grandmother credibly testified that she was never critical of Mother, Fiancé, or the maternal grandparents and never said or did anything during visits to undermine Mother’s position of importance in the Child’s life. Grandmother credibly testified that she did not blame Father’s suicide on Mother, testifying that it happened because he had mental health problems.” Wilson v. Smyers, 284 A.3d 509, 521.

Thus, Paternal Grandmother proved that an award of custody to her would not interfere in the parent-child relationship.

Of interest is an ancillary matter involving the name for the Paternal Grandmother. Mother wished that Paternal Grandmother referred to herself as “a close family friend” and not “Nana.” After some deliberation, the trial court allowed Paternal Grandmother to refer to herself as “Nana.” Mother appealed this part of the trial court’s Order also. The Superior Court affirmed. It stated the Commonwealth of Pennsylvania “has an interest in fostering the grandparent-child relationship. The Legislature has codified that interest in the Child Custody Act, which explicitly refers to grandparents. It might lead to an absurd result if a grandparent, who obtained an award under a grandparent custody statute, could not self-identify as the grandparent. Second, the testimony reveals that the Child already refers to Grandmother as ‘Nana,’ at least some of the time.” Id. at 521.

If you have any questions or concerns regarding child custody or grandparents’ rights, please do not hesitate to contact Scaringi Law at (717) 775-7195.


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