Grandparent Custody

Written By: Robert L. Buzzendore, Esquire
As Reviewed By: William F. Hoffmeyer, Esquire**

Grandparents have custody rights under the law, but they must satisfy the legal requirements to file a custody complaint. Legal standing is the ability to file a complaint. One of the ways grandparents may obtain standing and request custody is if their child (a parent of the grandchild) dies. If grandparents have standing and file a custody action, they must present evidence under the 16 legal custody factors, and the court must consider three additional legal requirements: (1) the amount of personal contact between the child and the party prior to the filing of the custody action; (2) whether an award of custody to grandparents would interfere with any parent-child relationship; and, (3) whether a custody award is in the best interest of the child.

In the recent case of D.R.L. v. K.L.C., 2019 PA Super 229, 1625 WDA 2018, the appeals court denied paternal grandparents additional time with grandchild. Grandparents’ son died in 2016, and even though mother granted substantial time to grandparents, they filed for custody. The grandparents and mother agreed to a custody order with grandparents having partial physical custody every other weekend, certain holidays and 7 days in the summer. Grandparents could also contact the child by telephone at reasonable times.

Grandparents then sought additional time and the trial court gave them an additional week in the summer. Grandparents disagreed with the trial court’s decision and filed an appeal.

Appeals are difficult because ‘abuse of discretion’ by the Trial Court is the standard of review. An ‘abuse of discretion’ is an error of law or a conclusion unsupported by the record. The appeals court must accept findings of the trial court that are supported by competent evidence of record. Moreover, the trial court decides credibility of witnesses.

The Superior Court affirmed the trial court’s decision. Grandparents had the burden “to demonstrate that partial custody or visitation in their favor [was] in the child’s best interest and [would] not interfere with the parent-child relationship.” The trial court issued a thorough analysis of the child’s best interests, and its findings were supported by competent evidence. As a result, there was no abuse of discretion in denying grandparents additional time.

The court reviewed the 16 custody factors and the three additional grandparent custody factors. The main factors in the trial court’s decision were as follows:

  1. Grandparents already enjoyed frequent and continued contact with grandchild.
  2. Mother requested the court not to provide additional time because it was interfering with her time with child and the child’s half-sibling. This was an important factor because additional time was interfering with parental time. A parent’s constitutional right is paramount.
  3. The grandchild’s extended family lived in close proximity and the half-sibling missed the grandchild when she was away.
  4. Grandchild gave a well-reasoned preference not to have additional time with grandparents because she missed her immediate family.
  5. Mother did not attempt to turn the grandchild away from grandparents.
  6. Mother was “more likely to maintain a loving, stable, consistent, and nurturing relationship with the Child for her emotional needs because [mother has been her primary caregiver and has] consistently addressed her basic needs.”

The key factors in this case appeared to be the parent’s rights and the fact grandparents already had a lot of custody time with grandchild with mother’s permission and then through a court order. Grandparents probably were seeking too much at the expense of the mother.

If you have questions about grandparent’s custody rights, whether as a parent or as a grandparent, please contact our York PA law office.

© Copyright by Hoffmeyer & Semmelman LLC, October 2019

TIME: DO NOT IGNORE DEADLINE$

Written By: Robert L. Buzzendore, Esquire
As Reviewed By: William F. Hoffmeyer, Esquire

A recent unemployment compensation case highlights the importance of filing an appeal on time and maintaining proof that it was filed on time. Time deadlines are very important especially when it relates to the jurisdiction of a court or administrative agency. The failure to file an appeal within the required time eliminates the ability of a court or administrative agency from hearing your case because it lacks jurisdiction.

If an appeal deadline is missed, the attorney has usually committed malpractice. This is why our firm has a double and triple check system to ensure a deadline is never missed. However, there are times when outside factors may cause an appeal deadline to be missed. Depending on those circumstances, one may still be able to file an appeal.

In Bankers Life & Casualty v. Unemployment Compensation Board of Review, an attorney appealed the denial of his client’s unemployment compensation benefits. The attorney mailed the appeal on the last day, December 26, 2017. He sent the appeal via certified mail to the correct address of the UC Service Center.

On January 6, 2018, the Post Office returned the mail as ‘undeliverable’ for an unknown reason. On January 31, 2018, the attorney faxed the appeal to the Service Center.

The referee held a hearing on whether the appeal was timely filed when the deadline was December 26, 2017, but the appeal was not received until January 31, 2018. The attorney testified that he mailed letters on the same date as he signed his letters. He used certified mail which was deposited in the mailbox.

The referee determined the appeal was not filed on time even though the referee agreed with the attorney that it was properly addressed and it was unknown why the Post Office returned it. The referee based his decision on the fact that the postmark was not legible and as a result, it could not be proven that the appeal was mailed on time.

The attorney appealed to the Unemployment Compensation Board of Review. The attorney produced a clear copy of the postmark, but the Board would not consider it because it was not submitted as evidence before the referee. The Board affirmed the referee’s decision.

The attorney appealed to the Commonwealth Court which reversed the Board’s decision and permitted the appeal to proceed due to the extraordinary circumstance of a breakdown in the system. The Court relied on the effort made by the attorney to fax the appeal after it was returned as undeliverable by the Post Office. The Court considered the returned appeal to be a breakdown in the system and not the result of attorney negligence.
It is important to note the Court did not rely on the attorney’s testimony that he mailed it on time because the legible postmark was not part of the evidence. Thus, the appeal was not filed on time, but it was allowed to proceed due to the Post Office’s breakdown, which inexplicably returned the mail, and the fact that the attorney faxed the appeal after it was returned to him.

Regardless whether it is an appeal deadline or any other deadline mentioned in a court or agency document, it is important to comply with those deadlines. The failure to comply with a deadline can cause you to lose important rights. Do not ignore a deadline or think the matter will ‘go away’ if it is ignored.

You should immediately contact our law office in York, Shrewsbury, or Mt. Wolf regarding any questions you have about deadlines in a court or agency document. The more time you provide to us, the better we can prepare the necessary document to protect your interests.

© Copyright by Hoffmeyer & Semmelman LLC, September 2019

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