Can Grandparents Have Custody if Both Parents are Working?

Grandparents who are raising their grandchildren in Pennsylvania, while the parents work, might wonder if they have legal custody rights under the law. A recent decision of the Pennsylvania Superior Court (non-precedential) may contain an answer to that question.  In J.L. F.L .and L.L. v. A.A.M., No. 530 MDA 2014 (August 28, 2014), the mother and father resided with father’s parents when their son was born.  Father and Mother became separated, and initially agreed to a week-on, week-off custody arrangement. Mother then moved 4 hours away when her boyfriend’s job was relocated. At that point, Father assumed primary physical custody, still living with his parents.  Mother saw the child once a month. This situation continued for approximately two years.

Father subsequently moved out of his parents’ home to live with his girlfriend, twenty minutes away. He began to work a factory job on second shift (3:00 p.m to 1:00 a.m.), which prevented him from seeing the children after school.  A custody proceeding ensued.  The court decided to keep the child in his grandparents’ home during the school year, with Father having “primary” physical custody in theory, and Mother having partial custody on weekends and during the summer.  Mother filed an appeal, arguing that custody should have been awarded to her instead of the grandparents.

The Superior Court observed that the grandparents would have standing to seek partial physical custody, but not primary physical custody. Furthermore, the law gives parents a strong legal advantage over third parties, including grandparents, in custody proceedings. The Court also held that relocation factors must be considered, because an award of custody to Mother would require the child to move. The Superior Court vacated the custody order and remanded the case, warning the trial court that it could not award primary physical custody to grandparents, even under the guise of “delegating” Father’s custody rights to his parents.  It appears that grandparents may not have the right to exercise primary physical custody of their grandchildren as an extension of one parent’s custody rights.