Do Grandparents have Standing to Pursue Custody of a Grandchild?

Does Grandmother who has been involved in her Grandchild’s life since birth, who has been a babysitter and substantially aided in raising the child, including periods when the Mother and Child lived with her, but has not had custody of the child have standing to bring a claim for primary physical custody?  The Pennsylvania Superior Court recently reviewed the requirements for a Grandparent’s standing to bring an action for custody for a Grandchild in the case of D.G. and D.G. v. D.B. and G.D., 2014 Pa. Super. 93, filed May 2, 2014.

This was an appeal of a Dauphin County case in which the Mother of a child born in 2005 appealed from an August 2013 Order awarding primary physical custody to the Grandmother.  The Mother raised the question as to whether or not the Mother, who had previously had sole legal and primary physical custody, had standing to bring the claim for primary custody.

The concept of standing requires that the claimant in an action be an aggrieved party and that his or her rights have been invaded or infringed by the matters complained of.  A party who wishes to bring a question but is not involved in the case cannot do so.  A party to an action must have a genuine interest in the matter and not a theoretical interest.  Typically, the Court requires that a party, in order to have standing, have direct, substantial and immediate interest in the matter at hand.  The Court noted that in matters of child custody standing has been applied with particular scrupulousness because they serve the dual purpose not only to protect the interest of the Court by assuring actions are brought by appropriate parties but also to prevent an intrusion into the protected domain of the family by strangers.

The Child Custody Act lists persons who have standing to seek custody.  Act 23 Pa.C.S.A. 5324 of the Act allows that individuals may file an action if they are (1) parent of the child; (2) a person who stands in loco parentis to the child or a grandparent who is not in loco parentis whose relationship with the child began with either the consent of the parent or under a Court Order and who assumes or who is willing to assume responsibility for the child when the child has been determined to be dependent or the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or the child has, for a period of at least twelve consecutive months, resided with the grandparent, excluding temporary absences of the child from the home and is removed from the home by the parents, in which case the action must be filed within six months of the removal of the child.

In the Dauphin County case recently heard by the Superior Court, Grandmother asserted, and the trial court agreed, that she had standing because she was in loco parentis to the Grandchild.  Loco parentis refers to a person who puts him or herself in the situation of assuming the obligations incident to parental relationship without formally obtaining the status of parent.  Loco parentis requires the assumption of parental status and the discharge of parental duties.  In order to be in loco parentis, the party placing him or herself in the status of in loco parentis, cannot do so in defiance of the parent’s wishes and in contravention of the child/parent relationship.

Where the child lives with the adult seeking standing and not with parents, courts have found in loco parents status.  In the instant case, the Grandchild did live with the Grandmother for months at a time, but never twelve consecutive months, but with the Mother also present.  Mother and Grandchild lived with Grandmother for two periods, May through August of 2007 and February through September of 2009.  Grandmother provided financial assistance, cooked, did laundry, for periods of time bathed the child and cared for the child when the Mother was absent.  After the Mother left the house, the Grandmother had visitation periods, including at least every other weekend and sometimes one night during the week.  At one point, Mother lost her car and Grandmother then had to provide transportation for the child for medical appointments.

Likening the case before it to a previous litigation, the Superior Court found that the Grandmother’s actions were consistent with helping her daughter and grandchild through periods of need but not a de facto adoption or in loco parentis status.  Grandmother played a large role in the Grandchild’s life providing occasional shelter, meals, laundry and transportation but, as of the time of the hearing, Mother and Grandchild had not lived with Grandmother for about four years and nothing in the record indicated that the parties had ever intended to permanently reside with Grandmother.

Since the Superior Court found that the Grandmother was not in loco parentis allowing custody under the Child Custody Act, which is the basis upon which the trial court found standing, the Court had to move onto the Grandparent’s assertion that, even if not in loco parentis, since the relationship with the child began with the consent of the parent and the Grandparent was willing to assume the responsibility for the child, the Grandparent had standing because the child was substantially at risk due to parental abuse, neglect, drug or alcohol abuse incapacity.  Since the trial court had determined Grandmother’s standing because she was in loco parentis, the Court did not specifically address the question of whether the Grandmother could have non in loco parentis standing as a party willing to take responsibility who had begun her relationship with consent of the parent where the child risk factors were such as to provide standing.  The trial court did make several findings with regard to the Mother’s ability to parent which were troubling.  The Court found that the Mother revealed herself to be immature, challenged and dysfunctional to handle parental duties and was also neglectful of needs.  The Mother also indicated to the Court that she possibly abused alcohol and overused prescription drugs and suffered from depression, was also a smoker and there was evidence that she smoked around the child and the child suffered from a lung ailment.  Mother did not provide a very stable home life, despite child’s tender age, the child had moved five times during her lifetime.  Mother also had difficulty waking up her child and insuring that he ate breakfast before going to school.  During the 2011-2012 school year the child was absent twenty seven and a half days although Mother attributed this terrible attendance record to the child’s lung ailment.  The Grandmother and Mother had conflicting testimony as to whether the Mother attended to the child’s medical needs.

Nonetheless, the Superior Court noted that a licensed psychologist that conducted Mother’s Court ordered mental health evaluation determined that Mother’s issues, including paranoia, depression and anxiety, though requiring ongoing treatment, did not make her incapable of caring for the child and noted that she would not harm the child.

Since the trial court did not analyze Grandmother’s standing as a non in loco parentis party and did not issue findings to substantiate its conclusion that the child was in substantial risk due to the parental abuse, neglect, drug or alcohol abuse, the case was remanded to the trial court with directions that the trial court assess whether Grandmother had standing to proceed as a non in loco parentis guardian where a child is at substantial risk due to parental abuse, neglect, drug or alcohol abuse or incapacity.