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Changes to Domestic Relations Act Expand Who May Seek Custody- Third Party Standing

The PA Legislature has recognized the dramatic changes over the past few years in parents no longer being able to raise children

By Attorney Jeffrey B. Engle, Esq., Custody Attorney, Harrisburg, PA

In recent years, the opioid/heroin epidemic and use of other drugs has created an entire culture among younger parents that has led to a rise in grandparents and third parties raising the minor children of addicted parents. So, in May of 2018, a new law was enacted in Pennsylvania that took effect in July 2018 (Act 21 of 2018) that amends two sections of the PA Domestic Relations Code (“DRC”) to allow for standing in custody proceedings.

Title 23 Pa.C.S.A. § 5324 was amended to allow for any individual, not just a grandparent to seek custody as long as they can establish by “clear and convincing evidence” (highest burden of proof in civil cases) that the individual has a “sustained, substantial, and sincere interest in the welfare of a child.” Notably, the “sustained, substantial, and sincere” or three “S’s” has been added. This does not permit anyone at any time from asserting standing, however, the parents must 1) out of the child’s life due to death, incarceration, or apathy (drug use can be the reason); and 2) the individual must have a history of involvement in the child’s life.

Further, Section 5324(5) was added to indicate that no party may seek custody if the child is part of a dependency proceeding that is initiated, ongoing, or there is a permanent legal custody established under the Juvenile Act.

Finally, there used to be a provision in the DRC that permitted third parties to seek custody “where the parents of the child have been separated for a period of at least six months or have commenced and continued a proceeding to dissolve their marriage.” The Supreme Court in PA has held that this is an unconstitutional violation of equal protection and due process because it unfairly classifies separating parents. D.P v. G.J.P, 146 A.3d 204 (Pa. 2016).

Grandparents may still seek primary or partial physical custody where the child has been in their physical care based upon the consent of a parent for 12 months or more; or if not, where they are willing to assume such parental duties and the parents are unfit due to drugs and alcohol issues, among other reasons.

If you have questions or concerns about the safety of a child due to parental involvement in drugs, such as opioids or heroin, you may call our office to discuss how to obtain custody. www.shafferengle.com; (717) 545-3032; or email direct at jeff@shafferengle.com.

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