Pennsylvania grandparents, young mother died

Paul and Chrissy were young sweethearts and had a child Karla out of wedlock in their late teens. The relationship did not work out, so Chrissy and Karla lived with Chrissy's parents David and Jo (Chrissy was still a teen). Karla did have visits with her father and paternal grandparents. He did pay some child support.

When Karla was about 2 years old, Chrissy was diagnosed with a brain tumor and battled it for 2 1/2 years. Karla was essentially raised by grandmother Jo. Chrissy recently died at age 22 (late June). Karla is now 4.

Just 2 months after Chrissy died, Paul and his family took Karla on a vacation -- and never returned Karla back to her "home" with Jo and David. Apparently Paul and his parents now want custody of Karla. It is not clear whether Paul lives with his parents, but now that is where Karla lives - with the paternal grandparents. Apparently Jo and David only see Karla a few hours every other weekend! Relations are of course getting hostile between the 2 sets of grandparents.

This does not seem right. The child was abruptly removed from her own home and all within 2 months of her mother dying.

Is there anything that Jo and David can do? Our family thinks that Karla should remain with them!

I'm sorry for your loss.

However, regardless what your family thinks, the father has custody rights to the child. While the maternal grandparents may have success in gaining visitation, it is unlikely to be more than they are already receiving voluntarily. Should they file and lose in court, they should be prepared to not see the child again.

The best course of action - for the child - would be for the maternal grandparents to remain on Dad's good side, as well as his parents'.

Unfit father? (PA)

Thank you for your post.

Jo is afraid to go to court, she is afraid she will never see Karla again.

Is there an age when a child in PA can decide which parent to live with? Hmmm, I guess it doesn't matter because her mother is dead.

Our family may try to prove Paul is an "unfit" father. Other than physical abuse, what would qualify?

Chrissy told her older sister Jackie that Paul watched porn in front of the baby at age 1 (Chrissy, Paul, and Karla briefly lived in an apartment). He never came to pick Karla up for his visits, the paternal grandparents did. Chrissy's wishes were that Karla attends Catholic school, but Paul and his family are atheist. I don't myself know how much financial support he provided to Karla, Jackie told me Paul used to bring milk. Yesterday, Jackie witnessed Paul's mother wrestle Karla's hands off Grandma Jo. Paul just sat on the couch, said nothing. (It was a scene when we were dropping Karla to Paul's house.)

This situation is absolutely horrid to say the least. Karla was screaming and said she didn't want to live there with Paul's parents. Heartwrenching.

Thank you for any advice.

The standard for fit parenting is pretty low, and nothing you've indicated would prove him unfit. And he IS the guy Chrissy chose to father her child.

A court is not even going to consider a 4yo's wishes. An older child, perhaps. But we're talking 12 and over.

A question, tho... Was paternity ever established legally?

paternity (PA)

I don't think paternity was legally established, no. I don't think there was any question that Paul was the father. It sadly is a case where young teens spent way too much time together alone. The situation was a mixed blessing for us. Though our family was quite upset about the teen pregnancy, at least Chrissy left her legacy for us.

I will find out the answer to your question.

Thank you again.

Even if it wasn't, while y'all could file for custody, it would require paternity establishment. And once that happens, he has more rights than all of y'all put together.

Really, the best thing to do is for all of you to make nice for the kiddo's sake.

Ah

Ok, I see what you are saying about establishing paternity.

Thank you so much for your advice. I am indeed passing it along.

Whether or not Paternity or custody has been estbalished, the maternal grandparents may petition the courts for both reasonable custody and visitation, this could include shared custody as long as it does not interfere with the father's parnetal rights and is in the best interest of the child. Under the circumstances the maternal grandparents would have a good chance of getting either or partial custody and visitation.

Please have the maternal grandparents seek the advice of an attorney in order to pursue this issue, it may also be wise to ask the court to appoint a Guardian ad Litem.

The laws of PA the folowing applies to OP's question.
§ 5311. When parent deceased.

If a parent of an unmarried child is deceased, the parents or grandparents of the deceased parent may be granted reasonable partial custody or visitation rights, or both, to the unmarried child by the court upon a finding that partial custody or visitation rights, or both, would be in the best interest of the child and would not interfere with the parent-child relationship. The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application.

http://www.womenslaw.org/PA/PA_custody.htm

Who is entitled to seek custody?

The judge will grant a custody order that s/he feels best serves the interests of the child. One or both of the child's parents may receive custody. In Pennsylvania, grandparents may also file for custody or visitation, but in some instances the court may also require them to prove they do not interfere with the parent-child relationship.

If there is a challenge about the paternity of a child, a judge will order paternity testing.

Also, a non-parent who has acted in loco parentis (in place of the parent) may receive custody. 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.

I am the child's grandparent or great-grandparent. Can I get custody or visitation of the child?

Grandparents may seek partial custody and visitation:

* If a child's parent has died, the parents or grandparents of the deceased parent may get partial custody and/or visitation rights;
* If a child's parents are unmarried, separated for six months or more , or have filed for divorce, the child's grandparent or great-grandparent may get partial custody and/or visitation rights; or
* When the child lived with the grandparent for a year or more.

A grandparent may also pursue full custody of a grandchild under certain other limited circumstances.

In addition, if you have been acting in place of the child's parent, you may be able to get custody. See Who is Entitled to Seek Custody?

Who is entitled to seek custody?

The judge will grant a custody order that s/he feels best serves the interests of the child. One or both of the child's parents may receive custody. In Pennsylvania, grandparents may also file for custody or visitation, but in some instances the court may also require them to prove they do not interfere with the parent-child relationship.

If there is a challenge about the paternity of a child, a judge will order paternity testing.

Also, a non-parent who has acted in loco parentis (in place of the parent) may receive custody. 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.

Omg!

That is WONDERFUL to read!!!! Yes, indeed Grandma Jo has been Karla's primary caregiver for at least a year! More than that actually! The woman is going straight to heaven after all this, caring for a sick child and raising her grandaughter.

Chrissy's parents have sought legal "consultation" but I do not know if they have decided to retain anyone at this time. We need to find someone who is aware of what you have posted! It gives me hope.

Thank you!

dmm104 said:

That is WONDERFUL to read!!!! Yes, indeed Grandma Jo has been Karla's primary caregiver for at least a year! More than that actually! The woman is going straight to heaven after all this, caring for a sick child and raising her grandaughter.

Chrissy's parents have sought legal "consultation" but I do not know if they have decided to retain anyone at this time. We need to find someone who is aware of what you have posted! It gives me hope.

Thank you!

Click to expand...

You are welcome
Thank you for comming back I was worried you would be leaving here before the actual question, based on the facts, was answered.

The reason I say that custody and paternity are not the major issues is because maternity has at least been established and along with that significant residence of child with grandparents satisfying the requirements under the law, standing. That doesn't mean that a particular decision will be rendered, it will all depend on the facts, what is reasonable and in the child's best interest.

Unless there is clear evidence that the father or home of paternal grandparents are unfit or the child in danger, there is small chance of sole custody and more likely something something less than that. Without knowledge of existing court orders and other facts it is impossible to determin some options and thus referal to an attorney, but even if there are no orders since the child's paternity was presumed by all involved, it is unlikely that the court would deny the presumed father some rights nor would he be in trouble for assuming custody of his child. That being said, it is in the child's best interest to move forward, under the available laws of PA and not try to win advantage by pointing fingers or trying to prove the father/grandparents, unfit.

Thank you again for posting.

Based on the info you provided in your first post, coupled with the Stealth's first post -- if the maternal grandparents tried to seek half-custody, even partial (we know it is an uphill battle), went to court depite Grandma Jo being the primary caregiver of child Karla, and "lost" that decision, could they really be ordered not to see the child?

I think that visits more often than every other weekend would be accepted by Karla's maternal grandparents.

Yes, Grandma Jo was Karla's primary caregiver for the last year -- at least! Chrissy's older sister Jackie (age 26) also lives at home. When Chrissy was near death, Karla asked Jackie if *she* could be her new mom.

I know that the maternal grandparents Jo and David have paid for a "mediator". Well, who knows where that will get anybody (in my family).

Again, I am appreciative of any advice -- and no, I will not just suddenly leave!

While they won't be "ordered" not to see the child in that event, Dad will be under no obligation to provide any sort of contact. The maternal grandparents should seek legal counsel to find out exactly what their chances are.

Thank you both. Ovbiously this is a shade of grey - gee, isn't everything!

Yes, Grandma Jo was primary caregiver, the relationship between Paul and Chrissy was, well, Chrissy ended the relationship. It didn't last long after Karla was born.

I found this interesting case in PA
Commonwealth ex rel. Zaffarano v. Genaro, 500 Pa. 256

In this case it was eventually ruled that the grandparents were denied custody and any visitation because the courts held that the problems between dad and the grandparents were so bad it wasn't in the child's best interest to continue visits.

However just to show you how unpredictable custody cases are involving grandparents ....

Albright v. Commonwealth, 491 Pa. 320

The courts awarded the grandparents custody over the biological father stating... In Ellerbe, we held that the removal of a child from a secure and familiar environment was the type of factor that could justify the award of the child to a grandparent over the claim of a parent.

Ellerbe (Ellerbe v. Hooks, 490 Pa. 363 ) stated...
The court concluded that the superior court applied the proper legal standard but, based on its review of the record, reversed the order awarding custody to appellee father and reinstated the trial court's custody award to appellant grandmother.

(which the above sounds good until you read the following)

Rowles v. Rowles, 542 Pa. 443

Thus the first issue is to determine the proper standard which controls custody disputes between parents and third parties. [***3] The trial court acknowledged that the rule of Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512 (1980), applied in this case, giving parents a prima facie right to custody of their children, though the presumption in favor of parents as against third parties is not conclusive. The Superior Court likewise identified the case of Ellerbe as setting forth the rule governing custody cases between parents and third parties, but cited several additional cases in which custody was denied parents despite the presumption in their favor: e.g., Albright v. Com. ex rel. Fetters, 491 Pa. 320, 327, 421 A.2d 157, 160 (1980) and Snarski v. Krincek, 372 Pa. Super. 58, 538 A.2d 1348 (1988).

In Ellerbe, this court was confronted with a custody contest between a parent and a third party. A majority of the court adopted the rule of In re Hernandez, 249 Pa. Super. 274, 376 A.2d 648 (1977), and articulated its new standard as follows:


[*446] Parents have a "prima facie right to custody," which "may be forfeited if convincing reasons appear that the best interests of the child will be served by awarding custody to someone else.". . . The Superior Court, through Judge Spaeth, articulated [***4] the following approach:





"When the judge is hearing a dispute between the parents, or a parent, and a third party, . . . the question still is, what is in the child's best interest? However, the parties do not start out even; the parents have a 'prima facie right to custody,' which will be forfeited only if 'convincing reasons' appear that the child's best interest will be served by an award to the third party. Thus, even before the proceedings start, the evidentiary scale is tipped, and tipped hard, to the parents' side. . . .


We agree that this approach is appropriate. Clearly these principles do not preclude an award of custody to the non-parent. Rather they simply instruct the hearing judge that the non-parent bears the burden of production and the burden of persuasion and that the non-parent's burden is heavy.


That last case overruled Ellerbe... The point solely goes back to trying to make nice with dad to start before considering legal action.

Thank you all. It looks like we really need to secure a good attorney who is fluent in this matter. Sounds like my Uncle David and his wife Jo (my aunt by marriage) have an uphill battle.

At least our family is educated and Paul's family is not. Hopefully we will hire a better lawyer?

Geeze, this still is just an awful situation and a little girl's life and well-being is at stake, case law or whatever. Where was the father in the first 4 years of Karla's life? It is Paul's mother who is driving the situation. She is nasty and fat too.

Oh, ok, I am getting emotional here and I really just wanted to stick to the facts.

Sorry.