The Commonwealth of Pennsylvania recognizes grandparental rights. Many states do not have this recognition. However, typically in a custody battle between a biological parent and a grandparent, the biological parent has a huge advantage.
As in any disagreement regarding custody, one must always remember that the lodestone of the Court’s decisions is the best interests of the child. Simply put, the Court cares much less about the disagreements of the parents and the peculiarities of their behavior toward each other, than it cares about how that behavior effects the children at issue. The Court weighs the evidence of the sixteen custody factors set forth in §5328 and determines which factors weigh in favor of which litigant. The Court is free to independently value one factor over another in the formation of the Court’s determination.
However, it is very important to note that in custody determinations between a grandparent and a biological parent, the biological parent the burden of proof is not evenly balanced. The biological parent has a “prima facie right to custody.” The balance is heavily weighted toward the biological parent which we can see well demonstrated in M.L.H. v. L.M.C., 2017 Pa. Super. Unplug. LEXIS 4317. In M.L.H., the biological mother had a long history of substance abuse problems and incarceration. During periods of incarceration, the maternal grandmother (yes, the parent’s mom) took complete care of the children. The grandmother enrolled the children in appropriate schools and performed all child rearing responsibilities. Nevertheless, although the grandmother had long periods of complete custody, there was never an order regarding legal custody of the children which remained 100% with the biological mother. The grandmother wanted at least partial legal custody and filed numerous motions in this respect. She presented the children’s teachers, step-grandfather and step-grandfather’s brother as well as two maternal aunts, paternal half-sister, paternal grandmother and the mother as of cross examination on her behalf – all of whom expressed either that the children were flourishing during grandmother’s care or that the biological mother had repeated bouts of substance abuse. That being said, for the past year, the mother had been sober and had fulfilled all Court duties and child rearing responsibilities. The mother was doing well over the past year.
Despite what could be determined to be a mountain of evidence of the biological mother’s past substance abuse and incarceration as well as much evidence from the parties regarding the positive effect of the grandmother in the children’s life, the Court still concluded that the biological mother should retain 100% legal custody.
The Court reached this decision based upon the fact that the biological mother’s past issues were in the past and that she seemed to be doing what was necessary to get her life in order currently. Further, the children did not demonstrate any behavioral difficulties and has maintained good attendance. The Court noted that the presumption in favor of the biological mother can be overcome by clear and convincing evidence. However, the mother’s past problems were not a strong enough inducement to overcome this presumption. Simply put the past problems are the mother in combination with the present flourishing of the children in the care of the grandmother were not enough to tip the balance in her favor.
It is wise to understand this inherent presumption if you are a grandparent who intends to obtain a greater level of legal custody in a case where the biological parent opposes this change.