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By Anthony Hoover
In June 2015, the Pennsylvania Superior Court, in K.T. v. L.S., provided partial child custody to the children's paternal grandparents over mother's objection[enhanced opinion available to lexis.com subscribers | Lexis Advance] .
The two children in this matter were born in September 2007 and March 2009. In December 2007, the children's mother and father, and the oldest child, resided with paternal grandparents. In January 2009, mother and father ended their relationship and mother moved out of paternal grandparent's residence. When mother and father separated, mother and father initially shared physical custody of the children. However, mother obtained primary custody of the children when she and her children, and mother's new husband, moved from Pennsylvania.
On February 17, 2013, father died in an automobile accident. Following father's death, mother took the position that paternal grandparents should have no contact with the children. In light of mother's position, paternal grandparents filed a petition seeking "partial physical custody" pursuant to the Pennsylvania Grandparent Statute.
The Pennsylvania Grandparent Statute provides grandparents with the right to seek partial physical custody when: (1) the parent of a child is deceased, a parent or grandparent of the deceased parent may seek custodial rights, (2) where the parents of the child have been separated for a period of at least six months or have continued a proceeding to dissolve their marriage, or (3) when the child has, for a period of at least 12 consecutive months, resided with the grandparent or great-grandparent, and is removed from the home by the parents, and an action must be filed within six months.
As a result of standing under the grandparent statute, paternal grandparents were awarded partial physical custody of the children for three weeks over the summer, two weekends each fall and spring, and four overnight periods during the Christmas break from school. The Court also ordered Skype communication with paternal grandparents each Sunday at 7:00 p.m.
In making its decision, the Superior Court stated that although there is generally a presumption favoring parents over third parties, the presumption was not applicable when grandparents were only seeking partial physical custody. Furthermore, the Court acknowledged that "grandparents have assumed increased roles in their grandchildren's lives and . . . the many potential benefits of strong intergenerational ties." The Court provided that "unless there is some compelling reason, we do not believe that a grandchild should be denied visitation to his grandparents." In this matter, the Superior Court believed there was no compelling reason to deny grandparent's visitation.
The Pennsylvania Superior Court also held that the paternal grandparents' minor criminal convictions were not relevant in the custody determination. The Superior Court explained that the legislature had established a list of crimes relevant in custody cases. Since the grandparents had not been convicted of any of the listed crimes, mother's introduction of the grandparents' crimes was improper.
© 2015 McNees Wallace & Nurick LLC
FAMILY LAW UPDATE is presented with the understanding that the publisher does not render specific legal, accounting or other professional service to the reader. Due to the rapidly changing nature of the law, information contained in this publication may become outdated. Anyone using this material must always research original sources of authority and update this information to ensure accuracy and applicability to specific legal matters. In no event will the authors, the reviewers or the publisher be liable for any damage, whether direct, indirect or consequential, claimed to result from the use of this material.
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