Expanding Standing in Custody Cases
Pennsylvania’s child custody laws regarding standing for grandparents and third parties have expanded within the past several years. The 2010 custody law gave grandparents standing to pursue custody of their grandchildren in certain circumstances. Pennsylvania statute 23 Pa. C.S. § 5324 permitted grandparents to seek any form of physical or legal custody where they had permission from the parents or a court, they were willing to assume responsibility for the child, and either the child was a dependent child, there was a substantial risk of abuse or neglect, or the child had lived with them for at least one year. Section 5325 permitted grandparents to seek partial or supervised physical custody where a parent of the child was deceased, the child’s parents were separated for at least six months, they had commenced a divorce action, or where the child had been living with them for at least one year. Grandparents’ standing was limited in 2016 after the Pennsylvania Supreme Court’s decision in D.P. v. G.J.P. found the language in section 5325(2) regarding parent separation to be unconstitutional.
As of July 3, 2018, the 2010 custody law has been amended by Act 21 of 2018. The language in section 5325 permitting standing where a parent is deceased or where the child has lived with them for at least one year remains the same. However, section 5325(2) has been amended to permit standing where there is a custody proceeding and the parents do not agree whether the grandparents should have custody. Grandparents will still not have standing in cases where the parents agree that the grandparents should not have custody. This ensures the protection of parental rights that the Court required in D.P. v. G.J.P. On the other hand, if one parent wants them to have partial custody, the grandparents will have standing when there is a custody dispute. Additionally, grandparents can still establish standing under section 5324(2) as in loco parentis just as any third party would. Grandparents who are not in loco parentis can still establish standing under section 5324(3) and seek custody where they had permission from the parents or a court, they were willing to assume responsibility for the child, and either the child was a dependent, there was a substantial risk of abuse or neglect, or the child had lived with them for at least one year.
Act 21 also created a new avenue for third parties to pursue custody through section 5324(4). This provision gives any person standing to seek custody of a child so long as they prove certain criteria by clear and convincing evidence. The main factor is that neither parent must have any control over the child anymore. In such circumstances, the third party, whether a family member, friend, or even a neighbor, need only demonstrate that they have or are willing to assume responsibility for the child and that they have a “sustained, substantial, and sincere interest” in the child’s welfare. The third party’s interest is then evaluated based on the nature of their relationship with the child. This expansion of standing is in large part due to the opioid crisis affecting the familial landscape across Pennsylvania. As more situations arise where parents are not be available to care for their children, friends and relatives are often in the best position to do so and this provision reflects that reality.
There has yet to be much interpretative case law on either of these new provisions. In G.A.P. v. J.M.W., the concurring opinion relied on section 5324(4) to grant grandparents standing against the great-grandparents of the child. The judge found that the grandparents’ failure to pursue custody where the great-grandparents initially sought and received custody did not undermine their interest in the child. The judge found that despite the lack of a current risk to the child, section 5324(4) allowed the grandparents to pursue custody. Although this is not binding precedent, it is currently the only opinion regarding this provision and how the “sincere interest” language might be interpreted by the courts. In another case, In the Interest of D.S., the Superior Court of Pennsylvania mentioned that the Orphans’ Court had found that a grandmother had standing under section 5324(4). However, the Superior Court affirmed on mootness grounds and did not address whether section 5324(4) actually granted standing. This decision demonstrates that, at least at the lower court level, this provision is seeing some usage. Only time will tell how child custody laws will continue to evolve in Pennsylvania. One can hope that custody laws will continue to expand to better serve the best interests of children across the state.
G.A.P. v. J.M.W., 194 A.3d 614 (Pa. Sup. Ct. 2018)
2019 Pa. Super. Unpub. LEXIS 700 * | 2019 WL 990939 No. 1214 WDA 2018