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Grandparent Standing or "the Right" to Bring a Custody Action for Grandchildren

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Philadelphia octogenarians fight to raise grandson

By Jon Hurdle

Reviewed by Attorney Jeffrey B. Engle, Family Law Division Leader, Harrisburg, PA

PHILADELPHIA | Fri Jul 13, 2007 10:27 am EDT

PHILADELPHIA (Reuters) - A pair of Philadelphia octogenarians is battling a family court for custody of their 5-year-old grandson, whom authorities took away because they said the couple is too old to raise the hyperactive boy.

Mildred Brasovankin, 85, and her husband Morris, 89, are seeking the return of Steven, who was born a crack baby and has struggled with developmental problems including hyperactivity. City social workers, following a March court order, put him in foster care.

The couple say they can take care of Steven and are the boy's sole source of love and stability after he was born to a crack-addicted prostitute and their 54-year-old son, who has a history of mental illness.

A court hearing on Tuesday will determine whether the temporary order putting the boy into foster care should be made permanent. The couple will present evidence about their ability to look after the child.

Across the United States, the number of children raised by grandparents has risen in recent decades. They step in often because the parents are in jail, addicted to drugs and alcohol or most recently, serving in Iraq, said Deborah Whitley, director of the National Center on Grandparents Raising Grandchildren at Georgia State University.

In 2005, about 963,000 children were raised exclusively by grandparents, who are typically in their late 50s, Whitley said, quoting figures from the U.S. Census Bureau.

Review by Attorney Collins-

Grandparents first require "standing" to bring an action for custody or visitation.

Standing to bring an action for a partial custody or visitation pursuant to statute is limited to parents or grandparents of a party, including putative grandparents. The statute also applies to non-biological grandparents who stand in loco parentis to one of the parents of the subject child.  The statute applies even where the natural parents never lived together, and the term "separated" merely means that the parties parted after conception of the child and includes parents who never maintained a relationship with each other.  The statute does not grant standing to a grandparent when parents who were previously separated have reconciled and are therefore an intact family.  The statute does not include stepgrandparents or other relatives, including siblings, but does include adoptive grandparents.  The right to bring an action is not limited to the parents or grandparents of the noncustodial parent but extends to the parent or grandparents of the custodial parent when the other statutory requirements have been met.  Partial custody or visitation may be granted to grandparents having standing to bring an action if the court finds that partial custody or visitation is in the child's best interest.  Because of the constitutionally protected fundamental right of parents to make decisions regarding their children, a parent's decision regarding visitation is entitled to "special weight," but is not determinative and partial custody or visitation may be ordered over the parent's objection.  A grandparent does not lose standing in an action for partial custody by failing to promptly institute proceedings, although the reasons for the delay are relevant to the ultimate determination of whether an order for visitation or partial custody is in the best interests of the child.

If you have questions concerning grandparent custody or general concerns about custody as a parent, contact the experienced legal team at Shaffer & Engle Law Offices, LLC.

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