New legislation was passed July 4, 2018 in Pennsylvania making it easier for grandparents (and other third party adults) to get custody of minor children when it’s in the child’s best interest. The legislation came about in reaction to the case of D.P. v. G.J.P., which held that grandparents were no longer able to assert standing solely because a minor child’s parents had been separated for a period of six months or more. As it was written, grandparents’ rights to their grandchildren were limited.

With this new legislation, a requirement that the parents of a child must have divorce proceedings pending no longer exists; instead, a custody action must exist. Also under the new law, if both parents agree that a certain grandparent should not have physical custody of their child, the grandparent will not get custodial rights.

Furthermore, in the cases when the child’s parents have never been married, the grandparents are no longer stopped from coming to court if a custody action is already in place between the parents. It seems that the new legislation passed July 4 is a nice balance between the Pennsylvania Supreme Court’s D.P. v. G.J.P. decision and the law prior to this.

Section 5324 and Section 5325(C)

Let’s be clear: On July 4, 2018, Section 5324 and Section 5325(2) of the Pennsylvania Domestic Relation Code were amended to only affect standing, not to actually determine who will gain custody when grandparents and other third parties are vying for custody of minor children.

Section 5324 states, “Grandparents can assert standing in a custody matter if they are able to establish by clear and convincing evidence that: (1) they have assumed or are willing to assume responsibility for the child, (2) that they have a ‘sustained, substantial and sincere interest in the welfare of the child,’ and (3) that neither parent is caring for or has any control of the child.”

To meet these conditions, the person seeking custody of the minor child or children must prove they have a significant history with the child and that both parents aren’t involved in the life of the child or children.

Both parents involved in D.P. v. G.J.P. 146 A.3d 204 (Pennsylvania 2016) agreed that it was not in the best interest of their children for their grandparents to have partial physical custody. The Supreme Court held that in the case where both parents agree that grandparents should not have custody, the custodial wishes of the parents supersede the wishes of the grandparents.

The Opioid Crisis and Custody Issues

The timing of these amendments to child custody laws could not have come at a better time. As we all know, the nation is in the throes of an opioid addiction crisis, and with so many parents being unable to care for their children, the time for the landscape of grandparents’ custodial rights to change is now.

With these amendments on July 4, third parties now have more of a chance to gain custodial rights when parents are not able to care for their own children. When neither parent is able to care for their child, a third party may seek custody of the child if: the “individual is willing to assume responsibility for the child and has a sustained, substantial, and sincere interest in the welfare of the child.”

Find a family law firm in your area if you are in need of a custody lawyer.