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practicing in Chester, Delaware and Montgomery Counties, Pennsylvania

Third Party Custody

The case presented to me was the not unusual story of my client's having had de facto custody of her eight year old grandson (we'll call him Jason) since his infancy. Her daughter (we'll call her Cindy) acknowledges that she is too unstable to properly parent Jason and wants him to stay right where he is - happy and safe with her own mother. Jason's father (we'll call him George) was never married to Cindy and, in fact, stayed as far away from the picture as he could for years. Only in the last two years had he expressed any interest in Jason and now says he wants full custody. As if happens, my client had just filed an action for child support since George had now graduated from both college and graduate school and had a good job. George's lawyer had written an intimidating letter to Grandmother stating as fact George's indubitable right to custody of his son.

In some states the natural parent almost automatically wins custody over the third party. Pennsylvania is more enlightened and recognizes that staying with a third party might be the better result for the child.

In standard custody cases involving two natural parents, they share an equal burden of proof. The third party, however, must first establish that he or she has standing - the legal right to be in court over this matter. When the third party has properly stood in loco parentis to the child - that is, she doesn't have him because she kidnapped him - the court will find standing. So Grandmother was over the first hurdle.

The burden of proof is heavier for the third party but not insurmountable. Current case law holds that the natural parent is deemed to have a prima facie right to custody - the scales are tipped hard in his or her favor. But if the third party can demonstrate "convincing reasons" that it is in the child's best interests to stay with him or her, then the natural parent will not win custody.

In similar circumstances I have been able to help the grandparent client retain custody for reasons as simple as the court's not being willing to relocate a thriving and happy child. In other cases we have had to meet a more demanding standard.

In Jason's case he was working with a counselor who helped him cope with rejection by both his parents. The counselor was very clear that Grandmother was the only source of security for Jason and that to move him would have been devastating. Jason was doing well in school, had lots of friends and activities he enjoyed. With the support of the counselor, the case was settled with Grandmother keeping custody. Jason continues to do well.

There is a practical side to these cases: in Chester County the parties are required to attend first a parenting class and then mediation. If they do not resolve their dispute there they must go to the "custody conciliator" (often called the Master). The conciliator is an attorney appointed by the court to process cases and make recommendations that become temporary orders pending a trial date. If either party requests it, and sometimes if they don't, the conciliator will order a custody evaluation, as happened in this case. My impression was that George wanted custody primarily to impress his fiancÚ and also to avoid paying child support (naively thinking that having custody cost less than child support). He was really not interested in an expensive evaluation. (The evaluation is usually by a psychologist who sees both parties, with and without the children, and with other members of each party's households. Sometimes there is psychological testing. Sometimes neighbors or other "collaterals" talk to the evaluator. It can be very valuable but it can be very expensive as well.)

Approximately ninety-five percent of these cases settle out of court - it's more a matter of when than whether. Emotional and financial exhaustion often set in well before the case actually gets to a judge. A word to the wise - take advantage of the opportunity to mediate your case - the first two hours are mandated to be at a reduced rate - you can save yourself and your family the tremendous expense and stress associated with any custody case. See also my Reader's Counsel: Mediating a Divorce and FAQs about custody issues.

© Susan V. Edwards, Esquire, 2001

Susan V. Edwards, Esquire
61 Cassatt Avenue, Suite 300
Berwyn, PA 19312
(610) 725-0733
fax (610) 725-0736

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