Changes to Custody Law in Pennsylvania

Monday, 04 June 2018 13:51 Written by  Elizabeth J. Fineman

On July 4, 2018, recent changes to the Pennsylvania custody law will go into effect. These laws take into account changes in the family structure and the expansion of classes of individuals who may qualify to file for physical or legal custody of minor children. 

The new class of individuals (third parties) who will have standing to file for custody must meet all of the following criteria as set forth in 23 Pa. C.S. 5324: 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.

In order to have standing, the individual must prove all three criteria by clear and convincing evidence, which is a high burden of proof.  Presumably, the burden is high to ensure that the child is protected and does not end up in the custody of someone unsuitable.  This opens up the possibility for neighbors, family friends, aunts and uncles or even sports coaches being awarded custody of children. The law also has a further limitation in that,  if there is a dependency proceeding, meaning that  there is a pending dependency petition alleging that the child(ren) is without proper parental care and should be supervised by the court, then the above criteria will not apply.

It should be noted that grandparents could have standing under two sections of the Custody  Code.  While grandparents and great-grandparents may have standing under 23 Pa. C.S. Section  5324, above,  they may also have standing to seek partial physical custody or supervised physical custody of their grandchildren or great-grandchildren under 23 Pa. C.S. 5329.  There have been changes to this section that will be effective July 4, 2018 as well.  Case law previously struck the sections that allowed for grandparents’ standing if the parents of the child(ren) were separated for at least six months or were getting divorced.  This is because it is unconstitutional  for intact families and families that are not intact to be treated differently.  The new revisions reflect that case law, and also strike those sections, but also added an additional section to  allow for grandparent standing: 1.  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:      A.  Have commenced a proceeding for custody; and,      B.  Do not agree as to whether the grandparents or great-grandparents should have custody  under this section.

Essentially this change allows a grandparent or great-grandparent who has an existing relationship with the grandchildren or great-grandchildren to be added as a party to a custody proceeding when the parents of the child cannot agree if the grandparent or great-grandparent should have any custody.

The final change to 23 Pa. C.S. 5329 changes the word parent to party in the section for consideration of criminal conviction.  The court must consider criminal convictions and make sure that there is no threat to the child(ren) before entering a custody order. This consideration relates to entering an order of custody to a party (not just a parent) who does have certain criminal convictions.

The timing of these changes to the custody law coincides with the rise of the opioid epidemic both nationwide and in the local area specifically.  Sadly, there has been a rise in the past few years of parents battling drug addiction and unable to care for their children, to the extent that  Pennsylvania legislators have felt compelled to address the impact of this crisis on minor children. These changes to the custody law increase the potential third parties who could seek to assume custody of the children in these situations.  The changes in the law reflect the reality that some of these third parties may already be caring for the child, but did not have standing to file for physical and/or legal custody previously.  As of July 4, 2018, they will be able to do so. 

Elizabeth J. Fineman

Elizabeth J. Fineman

Elizabeth Fineman concentrates her practice on domestic relations matters and handles a variety of issues, including divorce, child support, alimony/spousal support, marital taxation, equitable distribution and child custody matters. She has handled many high-income support cases involving an intricate knowledge of both family law and complex financial issues. Additionally, she has handled several appellate court matters representing her clients’ interests in the Superior Court of Pennsylvania.

To view Elizabeth J. Fineman's full profile, click here.

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