Grandparent & Third-Party Custody and Visitation Rights

Grandparents and other third parties — step-parents, aunts, uncles, family friends who have served as caregivers — face an uphill battle when seeking custody or visitation in Pennsylvania. The law strongly favors parental rights, and the legal framework has become more restrictive in recent years. But the rights exist, and in the right circumstances, courts do grant custody and visitation to non-parents.

The Constitutional Framework

Parental rights are constitutionally protected under the Due Process Clause. In Troxel v. Granville, 530 U.S. 57 (2000), the U.S. Supreme Court held that a fit parent's decision about who has contact with their child is entitled to special weight — and any statute that allows a court to override a fit parent's wishes must have adequate safeguards. Pennsylvania's custody statute was rewritten in response to Troxel and its progeny.

Standing — Can You Even File?

Before a grandparent or third party can seek custody, they must first establish standing — the legal right to bring the case. Under 23 Pa.C.S. § 5324, a grandparent or great-grandparent has standing to file for partial custody or supervised physical custody if:

1. The grandparent's relationship with the child began with the consent of a parent or under court order, AND
2. The grandparent is willing to assume responsibility for the child, AND
3. One of the following conditions exists:
   • The child has been determined to be a dependent child (under the Juvenile Act)
   • The child is at risk due to parental abuse, drug use, or incapacity
   • The child has resided with the grandparent for 12 or more consecutive months and was subsequently removed by the parent (the petition must be filed within 6 months of removal)

Under 23 Pa.C.S. § 5325, a grandparent has standing for partial custody or visitation when:

1. A parent of the child is deceased
2. The parents have been separated for 6+ months or have commenced divorce proceedings
3. The child has resided with the grandparent for 12+ consecutive months (with the same 6-month filing window after removal)

The D.P. v. G.J.P. Decision — The Standing Hurdle

In D.P. v. G.J.P., 146 A.3d 204 (Pa. 2016), the Pennsylvania Supreme Court tightened standing requirements for third-party custody claims. The court held that a third party seeking custody must demonstrate that the parent is unfit or that the child would face clear and convincing evidence of harm without the third party's involvement. This is a high bar.

The practical effect: grandparents and third parties cannot simply argue that the child would be "better off" with them. They must show that the parent's custody would cause actual harm to the child — or that the parent has effectively abandoned the parental role.

In Loco Parentis

A person who has stood in loco parentis — meaning they have assumed the obligations of a parent without a formal legal relationship — may have standing to seek custody under § 5324(2). This most commonly applies to step-parents, live-in partners, and extended family members who have served as the child's primary caregiver.

To establish in loco parentis status, the third party must show that they assumed parental duties with the consent and encouragement of the natural parent. If a parent actively encouraged the third party to serve as a parent figure, the parent may not later use parental preference to completely shut out that person.

What Grandparents Should Know

• Document everything: Keep records of your relationship with the grandchild — photographs, school pickups, medical appointments, overnight stays, financial support. The strength of your case depends heavily on demonstrating the depth and consistency of the relationship.
• Don't wait too long: If the child has been removed from your care, the 6-month window to file is strict under §§ 5324(3)(iii) and 5325(3).
• Mediation first: Many grandparent custody disputes are resolved through mediation without a full custody trial. A court order is more reliable than an informal arrangement — but a negotiated order is less damaging to family relationships than a contested trial.
• The emotional cost is real: Custody litigation between grandparents and parents is some of the most emotionally painful work we see. Go in with realistic expectations about what the court can and cannot do, and consider whether the litigation will ultimately serve the child's interests.