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Grandparents' rights

The following information was discussed by Attorney Whitney Hughes on the February 19, 2008 edition of Legal Briefs on KDKA's Pittsburgh Today Live.

Grandparents’ rights

Unfortunately, many times when we hear stories about families and relationships breaking up, the children become victims in an already problematic situation. In an effort to provide a more stable life for children in the middle of a divorce or custody fight, the children may go to live with a grandparent.

This raises a completely different set of questions and problems that fall outside the traditional “family law” box.

Common Questions

My daughter and her husband are going through a divorce, but things seem to be going pretty smoothly. I only pick up my grandson one or two days a week from school. Is this something I have to worry about?

Probably the biggest mistake that parents and grandparents make is to assume that everything will go smoothly. You will be much better served by assuming it won’t.

Absent any custody agreement, either parent has the right to have a child with him/her and in their control. This means that either the mother or the father is able to pick the child up from school. In most cases, especially those involving small children, the school will have a specific list of people to whom it is able to release the child. Make sure you’re on that list, and verify what the other parent is able to do as well. Ideally, if there is even a temporary custody order, it will state what each party’s rights and responsibilities are and who is able to care for the child in the event that one parent is unable to do so.

The bottom line is that if all parties seem to agree that the grandparent is a part of the game plan, make sure you’re actually a part of it in the court’s eyes as well.

My wife and I have not had actual legal custody of our granddaughter, but she and our son have lived in our home ever since she was born. My son and the child’s mother are both very young and immature, and unfortunately our granddaughter is caught in the middle and suffering. My son now has his own apartment and is packing to move out. We just can’t bear to lose the child or to see her go to an unstable environment. Can my wife and I just take custody of her?

Unfortunately it’s not as easy as just “taking” custody of her. Even though you may feel you’ve raised her, you will still have to go into court and petition for custody.

The good news is that in Pennsylvania, grandparents may be granted reasonable custodial rights in three situations:

  1. When a parent is deceased, as long as the relationship with the grandparents does not interfere with the parent/child relationship with the remaining parent.
  2. When the parents are divorced or separated (same caveats as above)
  3. When the child has resided with grandparent for a period of twelve months or more (same caveats as above)

So in this case, as long as you have had your granddaughter in your home for at least 12 months, you will have standing to go into court and seek custody or visitation.

What do the courts consider when deciding whether or a not a grandparent should receive custody or visitation?

As with anything else, the courts always look to the best interests of the child. Specifically with cases involving grandparents, they will also look at the existing grandparent/grandchild relationship. The more time a child spent with the grandparents prior to the court action and the stronger the relationship, the more likely the court is to find that it would be in the child’s best interest to continue the relationship.

Something to keep in mind, however, is the court’s focus on not destroying the parent/child relationship. Especially in contentious divorces or custody actions, it becomes very easy for the grandparents to take sides. If the court believes that whenever the child is around the grandparents they are demeaning and criticizing the other parent or otherwise interfering with the parent/child relationship, they will not grant the visitation.

I have custody of my grandson, but I am retired and on a limited income so money is tight. Is there anything I can do?

Anyone who has custody of a child can receive support payments. Here, a grandparent with whom the child lives is able to go to the family court and petition to receive support from the parents. This does mean that you will be essentially suing your own child for support, but keep in mind that even if you would file to receive any type of public assistance for the child, the court will institute a support claim on your behalf anyway, which would accomplish the same thing.

As always, for any question involving grandparents’ rights, please contact the Allegheny County Bar Association’s Lawyer Referral Service at 412-261-5555.