Can Third Parties Have Child Custody Rights?

By Kelly M. Walsh, Esq.

Pennsylvania’s custody laws presume that a parent can always be a party to a custody case, but there are also times when someone other than a parent can get involved in custody. There are some provisions for a grandparent to get involved under certain circumstances, but there is also something called “in loco parentis” that could potentially apply to someone more distantly related, or not even actually related to the child at all.

A person who is in loco parentis is in the role of a parent to the child. That person has standing to seek any form of legal or physical custody in a custody case. This status has been used by all manner of individuals involved in a child’s life, including grandparents, step-parents, same sex partners, and other friends or relatives who take responsibility for a child. The person who is in loco parentis is able to be a party in a custody case and obtain legal rights to a child, and they do not have to terminate the biological parent’s parental rights or establish any parental deficiency to do it.

To become in loco parentis, the third party needs to show that they assumed a parental status and that they discharged parental duties. They have essentially become a parent to the child without going through a formal adoption. While it is an important factor whether the child formed a special bond with the third party, that is not determinative. It cannot be just any bond, but specifically the bond of a child to a parent, based upon assuming a parental role and performing parental duties. The determinative factors are ultimately that the third party assumed parental status and discharged parental duties.

Importantly, the third party must have the parent’s consent to do this. A third party cannot achieve in loco parentis status by forming a bond with the child and acting in the role of a parent over the actual parent’s objections. Pennsylvania law recognizes the need to protect the family unit from intruding third parties. The parent has to consent to the child being placed in the care of the third party and the third party forming this special parent-like relationship with the child. Even if the child has formed a strong bond with a third party, the third party cannot be in loco parentis if that bond was formed in defiance of the parent’s wishes.

Where a parent does not consent to in loco parentis status, the objection must be to the formation of the relationship in the first place. The consent takes place when you allow a third party to take on a parent-like role for your child. If you later regret that decision, it may be too late to revoke consent. You run the risk that third party who you allowed to be in the role of a parent to your child will be able to sue you for custody if your relationship goes sour.

One option may be to take the child when you separate, cut ties, and hope the third party does not file a custody case within a reasonable time after you do. The longer the third party goes without being involved with the child, the stronger the case becomes that they were not in the role of a parent. Although it is not determinative in itself, the third party’s post-separation conduct can be considered to shed light on the extent of the bond and relationship, and whether it was an in loco parentis relationship or not. The court is more likely to conclude that the third party had an in loco parentis relationship with the child if the third party continues to have custody-like visitation with the child after separation than if the third party ceases the relationship with the child for a long stretch of time after separation from the household.

Parental consent to an in loco parentis relationship can be implied in the circumstances. In loco parentis status is appropriate for a third party who has lived with the child as part of a family unit with the parents, provided love and nurture, and formed a parent-like bond with the child. Courts have granted in loco parentis status to third parties who lived with the parent and child as part of a family unit and participated in performing parental duties for the child, even where the parent asserted they did not intend for the third party to form that relationship with the child. It is implied in the circumstances that by consenting to that living relationship and those family roles, the parents consented to the formation of the in loco parentis relationship.

This is true even when both parents were actively involved as parents. The third party does not have to be filling the role of an absent parent to be in the role of a parent. There are cases in which grandparents and step-parents were found to have achieved in loco parentis standing because they lived with the child, performed parental duties for the child, and formed a parent-like bond with the child, even when both of the biological parents were active parents. In the grandparent’s case, both parents even lived in the same household together with the child, and still the grandparent formed in loco parentis status. Distinctions have been made, though, between a grandparent whose actions and responsibilities for the child were consistent with an informal adoption and a grandparent who acts in a role more consistent with a frequent babysitter.

A relative or friend can also form an in loco parentis relationship if they step in to assume responsibility in a time of need. In one case an aunt and uncle who cared for a child with the mother’s consent while the mother suffered from mental illness were able to obtain standing for custody over the objection of a father who had little involvement and saw the child infrequently.

Given the complex relationships and financial challenges facing modern families, it is important to understand how your relationships and living situations affect your child’s custody relationships. Before you move in with someone or put your child in someone’s care, you should consider whether doing so will give that person in loco parentis custodial rights to your child. Call us today at 717-657-7770 to ask about a consultation and discuss how your rights can be protected.