grandparents rights

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
email:   info@attorneypotter.com

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.