child custody

Can a Pennsylvania Grandparent Get Primary Physical Custody of Grandchild? Yes and No.

Grandparents can get primary physical custody but It’s all about standing. That is, whether or not a grandparent can even get in the courthouse door, figuratively speaking. The short answer, then, is that when a grandparent is the one who actually does the “parenting” of the child, the answer is yes; the grandparent can obtain primary physical custody of a grandchild.

By “parenting”, though, I mean more than just helping out mom or dad. The operable legal term is in loco parentis. If a grandparent stands in loco parentis, then primary physical custody is achievable. Most of the time this means the grandchild, if old enough, looks to the grandparent as the “parent”. When the grandparent and grandchild live in the same household we have the seeds of in loco parentis. However, if one or both of the parents also live in that household, it will be tough for a grandparent to show he or she stands in place of the parents.

Why? It may not be enough that grandma or grandpa is at home, taking care of a grandchild while mom or dad is at work or school. It may not be enough that grandma is the one who always feeds the kids’ their breakfast and packs their lunches. If mom or dad perform parental duties alongside grandma and grandpa, achieving in loco parentis standing may be difficult. This is true even when a parent is irresponsible and otherwise lacking in parenting skills.

If you are a grandparent seeking to save your grandchildren by gaining custody of them it is vitally important that you seek out the advice and counsel of a lawyer. The same goes for a thoughtful, conscientious parents who are trying to rear their own children as best they can but find themselves in court, struggling with overly meddlesome grandparents.

If you need a custody lawyer to fight for your children or grandchildren please give me a call at 717-582-0400. Consults are free. I provide legal services to clients in central Pennsylvania, including the counties of Cumberland, Perry, Dauphin, Juniata, York, Franklin, Snyder, and MIfflin.

Sean A. Potter
The Law Office of Sean Potter, PC
15 East Main Street
P.O. Box 121
New Bloomfield, Pennsylvania 17068
Phone: 717.582.0400
Fax:     717.582.0401

As parents, we put our children first in our lives. We strive to make our children happy, broaden their opportunities, and lay the foundations for their future happiness and success. Sometimes, our quest to secure our children’s future means taking a better job in a distant locale or moving to a new city or town with a new spouse. Whatever the reason, when a separated parent decides to relocate with his or her children, a Pennsylvania Court of Common Pleas may end up deciding whether or not that relocation occurs.

The law of child custody relocation is found in Chapter 23 of the Pennsylvania Consolidated Statutes, section 5337. ( 23 Pa.C.S. § 5337). Among the principles underlying child custody relocation law is the belief that children should not be moved from place to place (except for a very good reason) and that a move should not have a detrimental impact on the children. The relocation statute establishes, in detail, everything a parent must do before a court will permit a relocation to occur.

In future posts, I will more fully explain just what the law requires from a parent who wishes to relocate with his children. Right now, though, if you have questions about how you can relocate with your children or about how to stop the other parent from moving your children to another city, county, state, or country feel free to contact me at the Law Office of Sean Potter, PC by calling 717-582-0400. I handle family law matters in central Pennsylvania and am happy to offer free consultations. My Perry County office is convenient to Cumberland, Dauphin, Juniata, Franklin, York, Snyder, and surrounding counties.

Sean Potter
Attorney and Counselor at Law
15 East Main St.
P.O. Box 121
New Bloomfield, PA 17068

Grandparents’ Child Custody Rights in Pennsylvania

I regularly receive visits from caring grandparents who are concerned about the health, safety, and overall well-being of a grandchild. Often, the child’s parents may be battling substance abuse, a mental illness is sometimes involved, or a parent is either soon to be incarcerated or is Imagealready serving time in prison. Fortunately, Pennsylvania law permits certain grandparents to seek sole or primary physical custody of one or more of their grandchildren. These grandparents may seek legal custody of a grandchild, as well.

In general, there must be extraordinary circumstances surrounding the parenting ability of the parents and the health and well-being of the children. Often by the time a grandparent files a custody complaint, the grandchildren have been residing in that grandparent’s home for a lengthy period of time. As a result, the grandparents are performing all the child rearing duties. Essentially, they are acting as parents in place of the child’s birth parents. In situations like this, it can be said the grandparents stand in loco parentis to their grandchildren.

Title 23, Section 5324 of the Pennsylvania Consolidated Statutes (23 Pa.C.S. § 5324)  who stand in loco parentis to their grandchildren to seek any form of physical or legal custody of those grandchildren. Grandparents who lack in loco parentis standing can still pursue any form of physical or legal custody of their grandchildren if they satisfy the statutory criteria.

Below, I have pasted the text of 23 Pa.C.S. § 5324. If you are a concerned grandparent, feel free to contact my office at 717-582-0400 for a free consultation and case evaluation.

23 Pa.C.S. § 5324.  Standing for any form of physical custody or legal custody. 

   The following individuals may file an action under this chapter for any form of physical custody or legal custody:

   (1) A parent of the child.

   (2) A person who stands in loco parentis to the child.

   (3) A grandparent of the child who is not in loco parentis to the child:

      (i) whose relationship with the child began either with the consent of a parent of the child or under a court order;

      (ii) who assumes or is willing to assume responsibility for the child; and

      (iii) when one of the following conditions is met:

      (A) the child has been determined to be a dependent child under 42 Pa.C.S. Ch. 63 (relating to juvenile matters);

      (B) the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity; or

      (C) The child has for a period of at least 12 consecutive months, resided with the grandparent, excluding brief temporary absences of the child from the home, and is removed from the home by the parents, in which case the action must be filed within six months after the removal of the child from the home.

Don’t like the judge’s custody order? Is it worth filing an appeal?

What do you do when your custody hearing does not go your way? What do you when you asked the court for primary physical custody but the judge gave you only partial custody? When your ex asks to


Sometimes, the only tool available to fix an incorrect custody decision is an appeal to the Superior Court of Pennsylvania

relocate the children from Cumberland County to LasVegas, Nevada and the judge lets him or her do it, even though you opposed the relocation tooth and nail?

A good first thing to do is to ask your attorney to file a Motion to Reconsider”. The motion should be filed promptly after the order issues. It should cite specific reasons why the judge should reconsider the order he just issued. The chances of success with a motion to reconsider are slim unless the judge really did miss something big.

Beyond the motion to reconsider is an appeal to the Superior Court. Again, your attorney should file the appeal ASAP after the judge issues her order. The appeal must be filed with 30 days of the order; whether or not your attorney as already filed a motion to reconsider. Going the appellate route is not easy. The Superior Court dismisses the vast majority of appeals it reviews.

However, if your attorney believes there is a legitimate, appealable issue that should result in a reversal, then a disappointed parent should seriously considering filing that appeal.

I know child custody appeals can be won because I have recently won 2 custody appeals*. To prepare and file your appeal, you should choose a lawyer who knows the appellate system and is an experienced custody attorney. Because I offer free consultations, I would be happy to discuss your custody matter (whether a possible appeal or something else.)

Feel free to contact me at 717-582-0400. My office address 15 E. Main St., P.O. Box 121, New Bloomfield, PA 17068.  Although my office is located in Perry County, I practice throughout the mid-state region.

*Winning an appeal in the past is no guarantee of future performance.

Emergency Custody and Special Relief

What do you do when, without your permission, the other parent pulls your child out of his or her school and enrolls him or her in a different school district?

What do you do when you fear for your child’s physical safety and well-being during his stays at the other parent’s residence? For instance, maybe mom’s new boyfriend is violent and abusive? Or, perhaps, dad is losing his struggle with substance abuse and, as a result, leaves a small child unattended while he sleeps it off or is out tending his habit?

What do you when the other custodial parent exhibits signs of mental illness that call into question his or her ability to adequately parent the child, to meet the child’s basic needs, and to make sound parenting decisions?

What do you when the other custodial parent simply fails to return your child to you at the end of his or her period of custody?

In Pennsylvania, the answer to these questions may come in the form of a Petition for Special Relief; sometimes referred to as an Emergency Petition. Pennsylvania Rule of Civil Procedure No. 1915.13 provides parents with the ability to quickly obtain an order which can do any or all of the following:

  • award the petitioning parent temporary sole physical custody of the subject child; or,
  • prohibit a parent from relocating the child to a new school district or even a new county or state; or
  • direct that a parent undergo a psychological or mental health evaluation to determine that parent’s fitness and ability to effectively rear his or her child.

A Petition for Special Relief can be a useful tool for obtaining other kinds of relief, as well. It is important, though, that you make a decision about whether or not file a Petition for Special Relief with the advice and counsel of an experienced custody attorney. A wrongly filed Petition can damage your entire custody case. On the other hand, not filing a Special Relief Petition when you should file one could leave your child in a vulnerable position. Careful consideration of all available options is necessary.

One of the ground rules for filing a Petition for Special Relief is that there must already be a custody case pending or, if there is none, that the Petition for Special Relief be filed at the same time as the initial Custody Complaint.

If you would like to discuss your custody case with me, I would be happy to do so. The first consultation is free and there is no obligation. I serve parents in central Pennsylvania; including the counties of Cumberland, Perry, Dauphin, Juniata, to name a few. Feel free to call 717-582-0400 to arrange for your free consultation.

Sean Potter
Attorney and Counselor at Law

Banned from the Daycare Center

Imagine not being able to visit your child’s daycare facility or preschool. That’s the predicament in which separated parents can find themselves during a heated child custody battle. Even a parent who has shared legal custody of a son or daughter may be barred from visiting that child at the daycare or preschool. It’s important, therefore, that issues surrounding parental visits to schools and daycare facilities be carefully considered before entering into a custody stipulation and agreement. Parents should know the implications of a custody agreement before entering into one. There is usually no better way to begin that quest for knowledge than by speaking with a knowledgeable attorney with experience handling child custody matters.

Sean Potter
Attorney and Counselor at Law