Custody Options for Non-Biological Parents

In many child custody cases, the court has to decide parenting time for two biological parents. However, over the decades, the family unit has evolved. Many children are cared for by non-biological parents, whether that is a step-parent, another relative, or good family friend.

This is rarely an issue when the biological parent and non-biological parent are on good terms. But, what happens when the biological and non-biological parents have a falling out?

Or, what happens when both biological parents are unavailable or unwilling to take care of the child? The child’s guardian will need legal standing to take proper care of the child’s schooling, medical care, and other necessities.

When you are the non-biological parent, you are likely wondering what your rights and legal options are in regard to child custody. While you do not have traditional parental rights, which give you the right to legal and physical custody of a child, you may be able to petition the court for equivalent custody. In fact, Pennsylvania recently expanded the option for adults standing in loco parentis to file for child custody.

Child Custody Options for Non-Biological Parents

When you are a non-biological parent to a child, you can petition for custody because of 53 Pa. Code §5324. Many other states have similar statutes. Based on this statute, certain individuals can file for any form of physical or legal custody:

• A parent of a child;
• A person who stands in loco parentis to a child; or
• A grandparent of the child who is not in loco parentis to the child and fulfills certain other requirements.

Since you are neither a biological or adoptive parent of the child nor the child’s grandparent, then you must stand in loco parentis to the child you wish to obtain custody of.

What Does “In Loco Parentis” Mean?

In loco parentis is Latin and means “in place of a parent.” In Pennsylvania, it is a legal doctrine that applies when a non-biological parent steps in to fill a biological parent’s shoes. It is when anyone who is not directly related to a child knowingly takes on parental responsibilities, including providing housing, clothing, food, transportation, education, medical care, and affection.

Situations involving loco parentis often involve grandparents, step-parents, and same-sex parents. However, it can involve any type of adult who takes on the parental role, including older siblings, aunts, and uncles, cousins, neighbors, teachers, biological parent’s romantic partners, and family friends.

Proving You Stand in Place of a Parent

You have the right to file a child custody petition as someone who stands in loco parentis. However, filing is only the first step. You have to prove you are truly in the position of a parent despite not being biologically or legally related to the child.

Pennsylvania law requires a non-biological parent to prove by clear and convincing evidence:

• You have assumed or are willing to assume responsibility for the child;
• You have a sustained, substantial, and sincere interest in the welfare of the child; and
• Neither biological/legal parent has any form of care and control of the child.

Both biological parents must be out of the child’s life for some reason, such as death, incarceration, medical conditions, abandonment, and drug abuse. In fact, one of the stated reasons for allowing adults in loco parentis to seek and possibly obtain custody is due to the opioid epidemic in Pennsylvania and the toll it takes on families.

To determine if you have a sustained, substantial, and sincere interest in the child’s welfare and whether you have or are willing to assume responsibility for the child, the court will consider the nature, quality, extent, length, and other factors related to your involvement in the child’s life.

You may seek to show the court that the child already lives with you or has lived with you in the recent past. You may show you provide the child with clothing, meals, and other necessities. You may have taken responsibility for the child’s education or medical care. You may offer the child affection as if they were your own biological son or daughter. The more involved you are in the child’s life and the longer this parental relationship has gone on, the more likely a court is to find that you stand in loco parentis.

This new standard was put into place when Gov. Wolf signed Act 21 of 2018, also known as SB 844, into law on May 4, 2018. It went into effect 60 days later in July 2018.

In Loco Parentis Is Not Adoption

You may prove you stand in loco parentis and gain legal and physical custody of a child. However, this does not make you the child’s legal parent and it does not give you full parental rights. It gives you limited custody rights, which can be challenged in the future. If you wish to obtain the full rights and responsibilities of a parent, you need to pursue the adoption process.