With increases in life expectancy, older Americans are often able to enjoy playing a role in the lives of their grandchildren. In the event that a grandparent is unable to agree on a visitation arrangement with the parent(s) of the child, the grandparent can, in limited circumstances, ask a court to order visitation. Despite the positive influences that grandparents can have, however, the law is reluctant to interfere with a parent’s decision with respect to allowing or denying grandparent visitation.

1. A brief overview of the Custody and Grandparents’ Visitation Act

In Pennsylvania, the Custody and Grandparents’ Visitation Act (“Act”) provides grandparents (and great-grandparents) with the ability to seek visitation over minor grandchildren in certain situations. It is important to note, however, that grandparents cannot obtain court-ordered visitation, except in limited circumstances, when both of the child’s parents are alive, living together and refuse to permit visitation.

The basic and most important consideration underlying visitation rights revolves around a court’s conclusion as to what is in the “best interests of the child.”

2.  Determining the “best interests of a child”

The Act requires courts to examine a number of factors in making the critical determination as to what custody or visitation arrangement is in the best interests of a child. They must consider, among other factors, the following:

• The need for stability and continuity in the child’s educational, family and community;
• Possible effect on the child’s relationship with siblings;
• Whether the grandparent can provide a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs
• Whether the grandparent can attend to the daily physical, emotional, developmental, educational and special needs of the child;
• The distance between the child’s home and the grandparent;
• The amount of conflict or hostility between the child’s parents and the grandparent and the willingness of the parties to cooperate with each other.
• The mental and physical condition of a grandparent or member of the grandparent’s household; and
• The child’s preferences, based on his or her maturity and judgment.

Although all of these factors are important, a court gives heightened weight to any factors that affect the safety of the child.

3.  What is the difference between custody and visitation?

The Act breaks down the term “visitation” into two possible forms that greatly affect a grandparent’s rights with respect to a child:

• “Partial physical custody”—the right to temporarily take a child from his or her parents for a designated period of time, such as, for example, vacations, weekends or holidays; and
• “Supervised physical custody”—the right to visit with a child under the supervision of the child’s parent, but without the ability to remove the child from his or her home.

Neither of these terms allows a grandparent to have complete custody of a child, such as the ability to have the child live with a grandparent full-time or the ability to make important decisions regarding education, religion and other matters.

4.  Can a grandparent get full custody over a child?

For grandparents that have not already assumed a parental role over of a child, the Act permits grandparents willing to assume responsibility over a grandchild to seek full custody over a child as long as they already have a relationship with the grandchild through the consent of at least one of the child’s parents. In addition, the grandchild must either

• Have resided with the grandparent for at least twelve consecutive months but have been removed from the grandparent’s home by the child’s parents;
• Be substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity; or
• Be a “dependent child,” such as a child that is abandoned by his or her parents, habitually truant or is otherwise lacking proper care, food, education or other important elements needed for physical, mental or emotional health.

5.  When can a grandparent seek partial or supervised physical custody?

In addition, grandparents can seek partial or supervised physical custody when 1) at least one of the child’s parents is deceased; 2) the parents have been separated or divorced for at least six months; or 3) the child has lived with the grandparent for at least twelve consecutive months and the child has been removed from the home by the child’s parent(s).

In determining whether to award partial or supervised physical custody to a grandparent or great-grandparent, courts consider:

• the amount of person contact between the child and the grandparent prior to going to court;
• whether an award of custody would interfere with the relationship between the child and the child’s parent(s); and
• most importantly, whether the custody award is in the best interest of the child.

Grandparents seeking to obtain visitation or custody of grandchildren can have an uphill battle, which is why it is important to obtain competent legal representation in such matters.

For general information concerning grandparents’ rights, consider visiting the following website: