Custody Rights of Grandparents and Other Strangers

Perhaps grandparents and extended families have always played a major role in the rearing of children, but their involvement has become more prominent in an era of fractionalized and blended families. The Superior Court has enunciated the standards applicable to the custody rights of grandparents in a recent unpublished decision. In K.M. Jr. v. R.R., and J.L. and D.R., No. 1482 MDA 2012 (March 8, 2013), the father of a 9 year-old daughter attempted to retrieve her from the custody of her maternal great-grandmother, who had moved suddenly to Pennsylvania from Staten Island, where he still resided. Father, who had conceived the child when he was 16 years old, petitioned for primary physical custody, presumably because he was now old enough to assume primary caretaking responsibilities.

One of the key issues in the decision was the weight to be placed upon the statutory presumption that children should be raised by their parents, who are legally favored over grandparents and other third parties who seek physical custody of minor children. The Court also considered the preference of the child and the grandmother’s advancing age and health problems.

Pennsylvania’s custody law, recently modified in 2011, simultaneously confers standing to grandparents and great-grandparents if they meet certain criteria and imposes a presumption that strongly favors the child’s parents in cases involving grandparents and other third party litigants seeking custody. The presumption is rebuttable if the grandparent presents “clear and convincing” evidence that the child would be better off with grandparents. In this case, the trial court found that great-grandmother woke up at 4:00 a.m. every morning to make the child’s breakfast, ensured the child’s success in school and activities, and strongly encouraged the child’s relationship with both parents by accompanying him on a mass transit bus every other weekend to visit Father in Staten Island (which must be a 2 to 3 hour trip each way).

Importantly, the Court assigned substantial weight to a consent custody order granting primary custody to the grandparent, which was agreed subsequent to the grandmother’s move. The fact that Father had agreed to grant primary custody to maternal great-grandmother after she left New York undermined his request for primary custody just one year later.