Grandparent Rights in Pennsylvania Series – Part 1: In Loco Parentis Status and the Opioid Epidemic

In the first article of this series, we discuss grandparents rights in Pennsylvania, in loco parentis status, and the opioid crisis. An April 22, 2019 article from the Census Bureau indicates there may be a connection between opioid prescription rates and whether grandparents raise their grandchildren. The article indicates that the percentage of the population over 30 who are raising grandchildren is higher in states that have a higher opioid prescription rate. The 2016 data indicates that over 2.5 million grandparents were responsible for providing the basic needs of their grandchildren. One of the highest rates occurs in Pittsburgh’s neighbor, West Virginia. In the law, the opioid epidemic gives rise to the issue of grandparents’ rights and in loco parentis status.

In Loco Parentis and Grandparents’ Rights in Pennsylvania

The term in loco parentis is Latin for “in the place of a parent.” The term refers to anyone that assumes the status of a parent and assumes the legal responsibilities of a parent. So, an adoptive parent, a step-parent, a foster parent, or a grandparent can be in loco parentis depending on the circumstances of the case.

In loco parentis status requires a person to assume all of the duties of a parent. In Spells v. Spells, 250 Pa. Super. 168 (1977) the Pennsylvania Superior Court noted that the courts have long recognized that a person may “put himself in the situation of a lawful parent by assuming the obligations incident to the parental relationship without going through the formality of a legal adoption.” We see this frequently today in Pennsylvania’s opioid crisis. Family members, usually grandparents, act as caretakers and guardians of minor children when the natural parent encounters a drug problem. Grandparents often provide basic caretaking for grandchildren while parents are incarcerated or seeking rehabilitative treatment.

Custody and Grandparents’ Rights in Pennsylvania

The issue of grandparents’ rights and in loco parentis status usually arises during custody disputes. There are three types of custody disputes: disputes between biological parents, disputes between biological parents and the state, and disputes between biological parents and persons standing in loco parentis. Grandparents fall in the third category. In custody proceedings, grandparents often attempt to get legal and physical custody of children. Legal custody is the right to make decisions over children. Physical custody is the right to keep, control, guard, and care for a child. When a parent is incarcerated or sent to long-term recovery for opioid addiction and related criminal charges, someone needs to take care of the children. If the other parent is not available, the natural inclination is for the grandparent to help.

Restrictions on Parental Rights

A grandparent or party standing in loco parentis does not have an absolute right to interfere with a parent-child relationship. The state will consider the rights of a biological parent. But only if the state hasn’t already terminated that parent’s rights. However, a court may impose restrictions on a parent’s rights. For instance, the state may limit a parent to supervised visitation if he or she has demonstrated harm towards the child. Despite this, children are entitled to know their parents.

So, a court will only restrict contact between parent and child in extreme circumstances. The general rule in Pennsylvania for determining issues related to children is “the best interest of the child” standard. See Fisher v. Fisher, 370 Pa. Super. 87 (1988). The courts consider sixteen (16) different factors in determining custody issues or restricting parent’s rights. Courts look towards factors that support the well-being of the child, as well as stability, continuity, and consistency.

Conclusion

The opioid crisis has a number of adverse affects on our communities in southwest Pennsylvania and West Virginia: increased crime rates, deaths from overdoses, loss of economic output, and interference with parent-child relationships. The crisis places a strain on family members and grandparents that have to take care of children whose parents are suffering from addiction. The legal issues can quickly spiral out of control without the guidance of an experienced family attorney.

If you are a grandparent with questions about custody rights related to the opioid crisis and are located in Pittsburgh or southwest Pennsylvania, contact the Pittsburgh family law attorneys at Dodaro, Matta, & Cambest, P.C. today at 412-243-1600 to schedule a consultation.

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