Child Custody, Visitation & Relocation

Grandmother Not in Loco Parent is Lacked Standing to Initiate Custody Action

In the family law and grandparent custody litigation appellate case, of D.G. and D.G. vs. D.B. and G.V., PICS Case No. 14-0762 (Pa. Super. May 2, 2014), the Honorable Victor P. Stabile writing on behalf of the Pennsylvania Superior Court in the case, ruled that grandmother, who played a large role in child’s life, but who did not assume full parental responsibility, was not in loco parentis and thus, lacked standing to initiate custody action.

Maternal grandmother, who had partial physical custody of child, filed a modification petition requesting primary physical and joint legal custody. Grandmother alleged, inter alia, that mother was neglecting child and failing to attend to child’s medical needs, including treatment for asthma and a lung ailment. The trial court found that grandmother had standing because she stood in loco parentis to child and awarded primary custody to grandmother.

Mother appealed. She argued that grandmother did not have standing to sue for custody under 23 Pa.C.S  5324(2) (person in loco parentis) or  5324(3)(minor substantially at risk due to parental abuse, neglect, etc). Mother argued that grandmother did not stand in loco parentis, but was simply a frequent caretaker or babysitter. The superior court vacated and remanded.

Under the Child Custody Act, persons in loco parentis may seek custody of a child. A person “in loco parentis” is one who has assumed parental status and discharged parental duties.

The record revealed that child and mother had resided together throughout child’s life, including two periods in 2007 and 2009 when mother and child resided with grandmother. During the periods of combined residence, mother and child slept in a camper and spent their days inside grandmother’s house. Also during the periods of combined residence, grandmother provided financial assistance, did cooking and laundry for mother and child, and bathed and cared for child while mother was away. Eventually, however, grandmother sought welfare assistance for mother because she wanted mother to move out.

After mother and child moved out in 2009 through early 2013, grandmother had custody of child every other weekend and one night per week. Grandmother often did not exercise the one night per week due to the distance between her home and mother’s home and due to her work schedule. In late 2012 or early 2013, mother lost her car and thereafter needed grandmother’s assistance in transporting child to medical appointments for his lung condition. Prior to that time, grandmother occasionally helped mother get child to his appointments.

Mother, grandmother and child plainly did not live together as an intact family unit. Grandmother played a large role in child’s life, providing occasional shelter, meals, laundry, and transportation to and from medical appointments. As of the custody hearings, however, mother and child had not lived at grandmother’s residence for four years. Nothing in the record indicated that the parties ever intended for mother and child to reside permanently with grandmother. In fact, mother and child stopped living with grandmother in 2009 after grandmother petitioned for welfare assistance for mother in an attempt to get mother and child out on their own. Grandmother’s efforts to assist mother and child in leaving her home were strongly inconsistent with an assumption of full parental responsibility. Therefore, the trial court misapplied the law in finding that grandmother stood in loco parentis to child and had standing to pursue the custody action.

On remand, the trial court should assess whether grandmother had standing to proceed under  5324(3).

Reference: Digest of Recent Opinions, Pennsylvania Law Weekly, (37 PLW468, May 20, 2014)

Filed Under: Family Law, Child Custody: Grandparent Initiating Custody Action In Loco Parentis

 Kindly visit our Family Law & Child Custody & Visitation websites for more information on this topic.