CUSTODY AND VISITATION FOR GRANDPARENTS

AND OTHER ELDERS RAISING CHILDREN

by Leticia Meana

SeniorLAW Center

            Over 60,000 children in Philadelphia are being raised by relative caregivers, many of whom are grandparents or other elders. If you are providing full-time care for a minor relative, you are what is called a kinship caregiver.  Kinship care is a rapidly growing phenomenon across the nation and particularly in our community, due to drug or alcohol addiction, incarceration, violence or death of birth parents who are unable to care for their children. 

            The thousands of senior citizens in our community raising other's children are providing extremely important services for these children, keeping them in a familiar and nurturing environment and preventing the need for the child to enter an unknown foster care home.  All kinship caregivers should consider filing for custody, which legally recognizes the role the caregiver is playing and gives them certain rights they otherwise would not have.

What is CUSTODY?

Custody  is a legal term which defines the right you have to care for a child. Many people incorrectly believe that when a child lives with them they have legal custody.  There are two types of custody:

Physical Custody: The child lives with you and is under your control. As long as you do not have a court order for custody, either birth parent can exercise their parental rights and remove the child from your care at any time.

Legal Custody:  If you are awarded legal custody, you can make major decisions concerning the child's needs such as medical care, education and housing.

When can I go to court for FULL PHYSICAL AND LEGAL CUSTODY of a grandchild?

A grandparent or great-grandparent can file a petition for full physical and legal custody only under certain circumstances, that are determined by the court.   First, it must be in the best interest of the child to be in the grandparent’s custody.  Second, the court must believe that the grandparent has genuine care and concern for the child.  Third, the grandparent's relationship with the child must have begun with the consent of a parent or pursuant to a court order.  Finally, the grandparent must have assumed the role of a parent for one year, or the child must have already determined to lack proper parental care or the grandparent must believe that there is parental abuse, neglect, substance abuse, or mental illness.

What are Partial Custody and Visitation?

An order awarding partial custody of a child allows you certain times to visit with the child without the legal custodian's supervision. It means that you have the right to take possession of the child away from the custodial parent for a specified period of time (for example, weekends, holidays, or vacations).

An order awarding visitation rights allows you to visit with the child but only under the supervision of the legal custodian. In other words, you are not entitled to remove the child from the custodial parent's control.

When can I ask the court for Partial Custody or Visitation rights?

A grandparent or great-grandparent can seek partial custody or visitation under these circumstances: 1) When a birth parent is deceased; 2) when the parents are divorced, or have been separated for six months or more even if they never married; or 3) when the child has resided with a grandparent or great-grandparent for twelve months or more and the child was taken away from the home by a parent.

What will the court consider in a decision to grant Partial Custody or Visitation?

The court makes its decision based on what is known as "the best interests of the child".

The interests of a child include the child's physical, emotional, intellectual, moral and spiritual well-being. Some of the factors the judge may consider include the relationship that has been developed between the child and the grandparent or great-grandparent and the amount of time they have spent together, the preferences of the child and the willingness of the biological parents to cooperate. The judge will always make sure that the custody arrangement does not interfere with the parent-child relationship.

Is a Custody order permanent?

A custody order is never permanent.  A birth parent or caregiver who has rights to a child may file a petition for modification of a custody order. The party seeking the change has to prove that it is in the best interests of the child.  Only adoption is permanent.

Can anyone else seek Custody of a child?

People other than grandparents or great-grandparents may seek custody of a child if they have assumed the role of a parent and taken responsibilities for a child as a parent. These third parties seeking custody may include other family members caring for children.

Where do I go to file for legal custody, partial custody or visitation?

Most petitions for custody and visitation will be filed at the intake unit of Family Court at 34 South 11th Street, Level M.  The other court that hears custody cases is Dependency Court at 1801 Vine Street.  Dependency Court handles the custody cases in which the Department of Human Services (DHS) is involved.  DHS is the agency which investigates reports of child abuse and neglect and can take a child away from an abusive home.

Do I need legal representation to file?

You do not need a lawyer to file a petition at Family Court. At the intake unit there are custody case interviewers who will help you file the complaint depending on what you are seeking. The intake hours are Monday through Friday from 9 a.m. to 12 p.m. You can even go through the process of getting custody without legal representation. However, we do recommend that you have a lawyer if the biological parents or someone else is challenging your petition.

Does it cost money to file?

As of March 2001 it costs $52 to file a petition for custody.  If you are on a low or limited income, you may be able to have the filing fee waived.  Ask about an IFP (in forma pauperis) filing or fee waiver. You will need to show proof of income to apply for the fee waiver.

SeniorLAW Center assists many elders with grandparent custody and kinship care cases.  Elders can discuss a legal problem or get information by calling SeniorLAW Center’s telephone intake line 215-988-1242 Mondays through Fridays, 9 a.m. – 1 p.m., or coming to our center city offices, Mondays through Wednesdays, 9 a.m. – 4 p.m.  Most issues can be addressed initially over the phone.  For general information, please call us at 215-988-1244 or visit our website at www.seniorlawcenter.org.  

Leticia Meana is SeniorLAW Center’s Hispanic Legal Services Coordinator.