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Pennsylvania Superior Court Awards Custody to Grandparents Despite Mother’s Objection

April 12, 2016
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Do grandparents have any rights to see their grandchildren?  Consider the case K.T. v. L.S., 118 A.3d 1136 (Pa. Super. 2015), in which the Pennsylvania Superior Court awarded partial child custody to a set of grandparents despite a mother’s objection.

The two children in K.T. were born in September 2007 and March 2009.  In December 2007, the older child and the children’s mother and father resided with the father’s parents, i.e. the paternal grandparents.  A year later, the mother and father ended their relationship, and the mother moved out of the paternal grandparents’ residence.  When the mother and father separated, they initially shared physical custody of the children.  But that arrangement did not last.  Eventually, the mother obtained primary custody of the children when she and the children—and the mother’s new husband—moved away from Pennsylvania.

Years later, the father died in a car accident.  After the father’s death, the mother unilaterally decided that the paternal grandparents should have no contact with the children.  Pushing back against the mother’s position, the paternal grandparents went to court, filing a petition for “partial physical custody” under the Pennsylvania Grandparent Statute.

The Pennsylvania Grandparent Statute is, among other statutes that provide standing to non-parents, a basis for grandparent custody rights.  The statute provides grandparents with the right to seek partial physical custody under three circumstances:

  1. when the parent of a child is deceased;
  2. when the parents of a child have been separated for a period of at least six months or have commenced and continued a proceeding to dissolve their marriage; or
  3. when a child has, for a period of at least 12 consecutive months, resided with the grandparent or great-grandparent and is removed from the grandparent’s home by the parents.

53 Pa. C.S. § 5325.

Under this statute, the paternal grandparents in K.T. were awarded partial physical custody for three weeks over the summer, two weekends each fall and spring, and four overnight periods during the children’s winter break from school.  The Court also ordered Skype communication with the paternal grandparents each Sunday at 7:00 p.m

In making its decision, the Superior Court stated that, although the law generally defers to the parental right of controlling access to one’s children, that deference yields when grandparents seek only limited, partial physical custody.  Elaborating on this point, the Court acknowledged the valued relationship a grandchild may share with a grandparent:

[I]n the recent past, grandparents have assumed increased roles in their grandchildren’s lives and our cumulative experience demonstrates the many potential benefits of strong inter-generational ties.

K.T., 118 A.3d at 1160.  The Court further explained that,
“[u]nless there [is] some compelling reason, we do not believe that a grandchild should be denied visitation to his grandparents.”  Id. at 1161.  In K.T. v. L.S., the Superior Court determined there was no compelling reason to deny the grandparents visitation rights.  The grandparents’ rights prevailed.

Resolving custody issues can be trying and complex.  The Family Law Practice Group at McNees Wallace & Nurick can help parents and grandparents protect their rights and navigate the custody process.

Anthony M. Hoover is an Associate attorney in the Family Law Practice Group at McNees Wallace & Nurick LLC, and practices in the area of divorce, support, child custody, property distribution, and alimony.  He can be reached at 717.237.5477 or ahoover@mcneeslaw.com.

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McNees is a full-service law firm based in central Pennsylvania with more than 130 attorneys representing corporations, associations, institutions and individuals. The firm serves clients worldwide from offices in Harrisburg, Lancaster, State College and Scranton, PA; Columbus, OH; and Washington, D.C. McNees is also a member of the ALFA International Global Legal Network. www.mcneeslaw.com @McNeeslaw LinkedIn

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