Who is entitled to seek custody?
The judge will make a custody order that s/he feels is in the best interest of the child after considering many factors.* The following people may file for any form of physical custody or legal custody:
- A parent of the child;
- A person who stands in loco parentis (in place of the parent) to the child (Note: Non-parents with in loco parentis status will generally have performed the duties that a parent usually performs - such as being the primary caretaker - for a significant period of time);**
- A grandparent of the child who is not in loco parentis to the child but:
- whose relationship with the child began either with the consent of a parent of the child or under a court order;
- who assumes or is willing to assume responsibility for the child; and
- when one of the following conditions is met:
- the child has been determined to be a "dependent child" under 42 Pa.C.S. Ch. 63 (relating to juvenile matters);
- the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity; or
- the child has, for a period of at least 12 months in a row, resided with the grandparent (not counting any brief temporary absences of the child from the home), and was then removed from the home by the parents -- in this case, the custody petition must be filed within six months after the child is removed from the grandparent's home.***
Also, grandparents and great-grandparents may file for partial physical custody or supervised physical custody even if they don't meet the requirements above. For more information, go to I am the child's grandparent or great-grandparent. Can I get custody?
* 23 Pa.C.S.A. § 5323(a)
** See, for example, T.B. v. L.R.M., 567 Pa. 222, 786 A.2d 913 (2001)(granting visitation to lesbian partner who cared for children during relationship); S.A. v. C.G.R., 856 A.2d 1248 (2004)(rejecting a father's claim that his wife could not claim custody of their child who was born via a surrogate mother and never formally adopted by the wife)
*** 23 Pa.C.S.A. § 5324