Big Changes to Pennsylvania Custody Law

On May 4, 2018 Pennsylvania Governor Tom Wolf signed into law Act 21 of 2018, which amended 23 Pa.C.S.A. Section 5324 and Section 5325(2) of the Pennsylvania Domestic Relations Code – otherwise known as the Child Custody Act – to expand who may bring court action seeking child custody and under what grounds.

Prior to the amendments to Section 5324, only parents, grandparents and those standing in loco parentis[1] were permitted to file an action for any form of physical or legal custody of a child. The amendments to Section 5324 now permit anyone to seek custody of a child, provided that individual can establish, by clear and convincing evidence that:

1. the individual has assumed or is willing to assume responsibility for the child;
2. the individual has a sustained, substantial and sincere interest in the welfare of the child; and
3. neither parent has any form of care and control of the child.

As for Section 5325, the former Section 5325(2) was deemed to be unconstitutional by the Supreme Court of Pennsylvania.

Under the amended Section 5325, grandparents and great-grandparents may file an action for partial custody or supervised physical custody in the following situations:

1. where the parent of the child is deceased, a parent or grandparent of the deceased parent may file an action under this section;
2. where the relationship with the child began either with the consent of a parent of the child or under a court order and where the parents of the child:

i. have commenced a proceeding for custody; and

ii. do not agree as to whether the grandparents or great-grandparents should have custody under this section; or

3. when the child has, for a period of at least 12 consecutive months, resided with the grandparent or great-grandparent, excluding brief temporary absences of the child from the home, and is removed from the home by the parents, an action must be filed within six months after the removal of the child from the home.

The unconstitutional aspect of Section 5325(2) focused on the relationship status of the parents (separated for at least six months or filed for dissolution of their marriage) as a factor in determining whether grandparents or great-grandparents may file for partial custody or supervised physical custody.

As amended, Section 5325(2) eliminates the relationship status of the parents as a determining factor for standing and now focuses on the disagreement of the parents as to the custody of the child. Most notable is the requirement that the parents must have already commenced an action for custody in order for grandparents or great-grandparents to file for partial custody or supervised physical custody under Section 5325(2).

In sum, the amendments to 23 Pa.C.S.A. Section 5324 and Section 5325(2) of the Pennsylvania Domestic Relations Code provide a broader range of circumstances in which parties may seek standing to bring an action for custody of a child.

If you have questions concerning grandparents’ rights or third-party rights in child custody or any child custody matter, contact one of Scaringi Law’s child custody attorneys at 717-657-7770.