Central Pennsylvania Grandparents' Rights Lawyers
The bond between a grandparent and a grandchild is a special one, spanning generations. When parents divorce or separate, courts make decisions about parenting time and custody. However, grandparents' rights are often overlooked during this process, thereby leaving them out of the equation and upsetting this special relationship.
Historical Perspective
At common law, grandparents did not have a legal right to visit grandchildren if the natural parents denied contact. Any parental obligation to allow grandparent visitation was considered a moral one, not rising to the status of a legal right. The parents' decisions as to visitation were upheld based upon the parents' natural rights or because conflict between parents and grandparents would be contrary to a child's best interests; or, in the divorce context, grandparent visitation would add an additional burden on the custodial parent of the child.
English chancery courts sometimes allowed grandparent visitation in instances where a parent had abandoned the child, the child had lived with the grandparent for a period of time, or where there was an agreement or stipulation as to visitation. A few courts found that "equity recognizes independent of statute, the grandparents' claim to the companionship of their grandchildren." Courts began to grant visitation rights to grandparents when one (or both) of the biological or adoptive parents had died because the family unit had been disrupted.
The earliest grandparent visitation statutes were narrowly drawn to remedy a perceived need of the child, i.e., to maintain contact with a grandparent after death of one of the parents. The grandparent stepped into the shoes of the deceased parent and became the representative of that side of the family. Therefore, some states find grandparent visitation to be contingent upon there being a divorce, out-of-wedlock birth, or death of a parent.
The second instance when courts have granted grandparent visitation rights was following divorce on the theory that the parents have invoked the power of the state to supervise all aspects of the divorce, including custody and visitation of children. The court, in looking to the best interests, can try to assure that children of divorce receive the attention, care, and concern that they would have had if the parents had remained married.
The U.S. Supreme Court Addresses Grandparents Rights
The United States Supreme Court has cut back on the use of the "best interests" of the child test for awarding grandparent visitation. The Court affirmed the finding of the Washington Supreme Court that its statute was unconstitutional as applied. The plurality found that no deference was given to the right of a parent to rear a child without interference. The implication is that the grandparents have a higher burden of proof now and will need to show harm to the child from not having visitation.
While many early discussions of grandparent visitation focused on the rights of the grandparents to visit their child and stressed the biological link, in recent years there has been a shift toward recognizing grandparent visitation as being of benefit to the child. In recent years there has been substantial literature on the importance of grandparents in a child's life in giving the child a sense of security and extended family, a respect for older people, less fear of old age because of role models, and an emotional sanctuary with unconditional love and acceptance.
Additionally, grandparents may provide some continuity or stability for a child whose "family" has been fragmented by divorce or death. In upholding the constitutionality of its grandparent visitation statute, before the United States Supreme Court case of Troxel, the Wyoming Supreme Court cited social science literature identifying four "symbolic" roles that help explain the ways grandparents influence their families.
The "being there" role assists in transitions, mitigates against disruptive events, and serves to maintain the identity of the family. The grandparents' presence serves as a stabilizing influence. Second, as the "family watchdog," grandparents can look for signs of abuse or neglect. Third, grandparents play an "arbitrating role" by actively negotiating between parents and children as to values and behaviors. The fourth symbolic role for grandparents is as "interpreters of family history." They can give perspective on past, present, and future.
State Interpretation of the Law
The mere fact that there is a statute granting grandparent and stepparent visitation does not mandate visitation for every stepparent or grandparent, but its intent is to give stepparents and grandparents visitation rights under the appropriate circumstances, including after a divorce has been granted. Most states, including PA, do require that third parties seeking access must file in some type of an ongoing action, such as the death of a parent, a divorce, a paternity proceeding or some other custody action.
Some courts continue to find, in the absence of parents' subjecting themselves to the jurisdiction of the court, that there is no justification for the state to override the parents' determination of the child's best interests. In Indiana, for example, the trial court, in issuing required findings and conclusions when ruling on grandparent's petition for visitation with grandchild, should address: (1) the presumption that a fit parent acts in his or her child's best interests, (2) the special weight that must be given to a fit parent's decision to deny or limit visitation, (3) whether the grandparent has established that visitation is in the child's best interests, and (4) whether the parent has denied visitation or has simply limited visitation.
Although courts, including PA's, have refused to find that grandparents have a constitutionally recognized interest in associating with their grandchildren, many courts are willing to allow grandparents to visit their grandchildren in a variety of situations. After Troxel, courts have moved toward requiring a rebuttable presumption in favor of the fit parent's decision regarding visitation with grandparents. The grandparents have the burden of rebutting the presumption in favor of the parents' decision by clear and convincing evidence.
At Shaffer & Engle Law Offices, LLC located in Millersburg and Harrisburg, Pennsylvania, our family law attorneys provide zealous advocacy on behalf of grandparents who are seeking to assert their visitation rights with their grandchildren and on behalf of grandchildren seeking to have their special bond nourished through a continued relationship with a grandparent.
There are a number of circumstances in which grandparents in Pennsylvania can assert their legal rights, including:
- When the parent of a grandchild has died
- When the parents of a grandchild are divorcing or separating
- When the grandchild has lived with the grandparent
- When the grandparent has acted as the primary caregiver of the child
- When the grandparent is pursuing legal and physical custody of a child
If you are concerned for the safety of your grandchild and wish to pursue legal steps to remove the child from an abusive and/or neglectful situation, we can represent your interests and the interests of your grandchild.
Grandparents as Caretakers
While grandparents as such do not stand in loco parentis, ("in the place of a parent") to grandchildren, they may obtain custody and assume such status and thereupon be obligated to provide care, maintenance, and support for the child.
As a general rule, grandparents, as such, do not stand in loco parentis to grandchildren, but in particular circumstances the relationship may be established. While it may be proper to award temporary custody of a child to a grandparent, or a right of visitation where the child is in the custody of another, daily parental responsibilities to supervise a child's physical, emotional, and intellectual growth cannot be extended to grandparents exercising temporary custody. However, grandparents not in loco parentis to a child may, nevertheless, still owe a legal duty of care and protection to the child if the child is in their custody or control.
Support and Maintenance: A grandparent standing in loco parentis to a grandchild may be obligated to provide care, maintenance, and support for the child. However, unless the relationship of loco parentis exists, the grandparent is not bound to support grandchildren, except to the extent that a statute imposes such duty.
Frequently Asked Question
Another important note, and frequently asked question is "whether I will lose my rights to a grandchild if my child's rights are terminated via an adoption?" The fact that the husband of the mother of a child born out-of-wedlock adopts the child does not extinguish the visitation rights of the child's paternal grandmother.
As skilled litigators, we will represent your interests in trial if a resolution regarding your rights as a grandparent cannot be amicably achieved.
To discuss your legal rights as a grandparent with a knowledgeable and experienced family law attorney at Shaffer & Engle Law Offices, LLC please contact us. Call toll-free: 866-765-0706.
