Question: My son and ex-girlfriend were living together in her home and had a baby boy the end of January. My son is on the birth certificate as the father. They broke up about a month or so after the baby was born. Since he moved home, she has been very controlling, and allowing him to visit the baby for only one hour, a few times a week on her porch. He is heartbroken because he wants to be a father, but she won’t let him. I also want to see my grandson. We are heartbroken, and I’m trying to convince my son to file for shared custody, since she won’t agree to anything. What are his or our parental rights?

Answer provided by: Danielle A. Peters, Esq. from Bloom Peters, LLC in Horsham, PA

Unfortunately, your situation is not uncommon. The good news is that both you and your son have certain custody rights. Your son, as the parent, has a constitutional right to be a parent and to spend time with and make decisions on behalf of his child. Your son absolutely could file for custody to establish both his legal and physical custody rights. Legal custody means that a person has access to all medical, educational, psychological, counseling, and religious records and information regarding a child and that a parent can make all significant decisions regarding that child. Physical custody is how much time a parent has with the child. Usually physical custody is spelled out in a regular schedule.

Unless the parties agree, a court will decide legal and physical custody based on what is in the best interest of a child. Generally, most parents have joint (shared) legal custody unless there are circumstances present where it is not in the best interest of a child. Physical custody and the schedule that a child follows as to which parent they are with varies, but again is based on what is in the child’s best interest. Primary custody is that one parent has more time than the other such that the other parent has partial custody. These physical schedules vary. Shared is generally a schedule that allows for equal time with both parents, and again there are a variety of shared custody schedules.

A court evaluates the best interests of a child by looking at 16 factors. The 16 custody factors not only look each party’s ability to care for and carry out the parental duties for the child, but look at the child’s specific needs – developmentally, emotionally, educationally, medically, etc. as well as the child’s extended family (grandparents, etc.), and how close both parents live to each other. The 16 factors also look at the parties’ relationship and ability to communicate with each other and encourage the relationship between the child and the other parent. Most importantly, the factors also examine whether there has been any history of abuse between the parties, drug or alcohol issues for either party, mental health issues for either party or in either party’s household that would put the child at risk. Since your grandson is young, and his mom sounds like she has been controlling the situation, your son may not have had the opportunity to show that he can care for the child. This should not discourage your son from seeking custody. If he has the ability to care for his son and wants to do so, a court is not going to be deterred because he hasn’t had the opportunity to do so. The court is going to look at the particular facts in this case and order a physical custody schedule based the best interest of the child under the 16 factors.

In addition to your son’s custodial rights, you, as a grandparent have rights, too. In fact, Pennsylvania expanded grandparent rights in 2018. Now, a grandparent can seek partial custody of a grandchild when 1) a custody action has already been initiated by either parent and 2 )the relationship with the child began with either the consent of a parent or under a court order and 3) the parents do not agree as to whether or not you should have any custody. A court, however, can refuse to hear a grandparent custody action if both parents agree and believe that contact with the grandparents is not in the best interest of the child. It does not sound like this is the case here. Grandparents can also seek custody if there are issues of either neglect, abuse or dependence; or if a grandchild has lived with a grandparent for at least 12 months, or when the grandparent’s child (who is the parent of the grandchild in question) has died.

A court is also going to look at what is in the best interest of the child to determine grandparent rights using the same 16 factors but are also going to look at additional factors, including the impact of an award of grandparent custody on the parent-child relationship.

Your son should start the process for custody by filing a custody complaint. This potentially opens the door for you to be able to file for grandparent custody. If he does not do this, unless you meet the other criteria, you may not be able to file for custody. It is important for your son to get the process started to protect his rights as a parent and allow him to more fully participate in his son’s life. Remember, physical custody can change over time as a child grows and often times a court will order a schedule that gives more time to a parent as a child grows. However, depending on the circumstances, a court could also order a shared schedule from the outset. It will really depend on what is in the best interest of the child. It is important for your son to establish his rights as a Father and start exercising those rights now.

Before filing and because these cases are so fact-specific, I strongly encourage you to consult with a knowledgeable family law attorney to get the best plan of action for both you and your son. Good luck!

To arrange a $40 30 minute consultation with attorney Danielle A. Peters, Esq., click here to email a Montgomery Bar Association LRS advisor now (LRS@montgomerybar.org), or call 610-994-3656 during regular business hours (Monday-Friday, 9 AM-4PM). If contacting us by phone, please be sure to mention this attorney’s name and how you heard about us. Automated referrals to other Montgomery Bar Association member-attorneys in your area offering free or deeply discounted collaborative divorce consultations through our service are available Online anytime at RealLawyers.org.

More about this Montgomery Bar Association member-panelist:

Danielle Peters, a partner at Bloom Peters, LLC, focuses on civil litigation in Pennsylvania and New Jersey, with a special focus in family law. Ms. Peters is a skilled litigator who handles difficult legal matters, including high conflict divorce and custody matters which often involve children with special needs. Ms. Peters is also trained in collaborative law for situations where clients want to take a more civilized approach to their legal issues. Attorney Peters is an ardent advocate for her clients.

In 2017, because of her zealous advocacy on behalf of her clients with custody matters involving children with special needs, Ms. Peters participated as a panelist alongside Pennsylvania Supreme Court Justice Kevin M. Dougherty, Montgomery County Court of Common Pleas then Administrative Family Law Judge Kelly C. Wall and other distinguished panelists at programs at the Montgomery County Bar Association and before the Philadelphia Bar Association and the Family Court Judges on the Philadelphia Court of Common Pleas on “Autism, Special Needs and Our Courts; A Town Meeting for Lawyers, Psychotherapists and Jurists.” Ms. Peters remains committed to not only helping clients navigate the court system, but finding creative solutions to the unique problems facing families with special needs children who find themselves with custody issues.

Prior to joining Bloom Peters, LLC, Ms. Peters was a Deputy District Attorney at the Bucks County District Attorney’s Office where she was assigned to Special Victims Division. She participated in all aspects of the criminal justice system from investigation through bench and jury trials. She was also responsible for any post trial litigation or appeals from the cases she prosecuted. Ms. Peters was an active member of the Bucks County Crimes Against Older Adult Task Force and was a presenter at the 6th Annual William J. Neff Sr. Symposium on the Prevention of Crimes Against Older Adults. In addition to her duties in the Special Victims Division, she was also asked to assist in the administration of the county’s ARD program.

Ms. Peters also served as a law clerk to The Honorable Raymond Batten, Superior Court, Criminal Division, in the State of New Jersey and worked as a legal intern at the Camden County Prosecutor’s Office.

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