As we have all witnessed, ours is an age when grandparent duties transcend “Saturday” night. Historically, Saturday was grandparent night when parents would have their night out. Sadly, the explosion in substance abuse among young and middle age adults has forced many older couples to choose between taking their grandchildren in or seeing them placed in a foster care system.
The tensions of resuming the duties of full-time parents during what were supposed to be the “golden years” has taxed many marriages. A couple recent appellate cases speak to what happens when grandma and grandpa decide that they either don’t like each other or the relationship otherwise snaps because a second generation of child rearing was not part of the marital bargain.
The most recent case is unpublished. It was “unpublished” on June 15 and may be cited as J.B.S v. J.L.S., Jr.. In this case the mother of the child disappeared into the mist and the father brought the kids home to live with his parents (these litigants) in 2009. In 2010 the father murdered another child leaving his parents to assume the role as sole parents of two children, then ages 1 and 4. In the wake of this tragedy the Court awarded the children to the grandparents with the consent of the now missing mother. Mother was ordered to pay child support but did not.
In 2018 Grandpa filed for divorce and sought primary custody of the children. That issue was litigated, and the Court awarded Grandma primary physical custody. Grandpa was then earning roughly $90,000 a year to Grandma’s $33,000 so Grandma filed an action for child support. In Spring 2019 the Court awarded spousal support of $300 and $141 in monthly child support. A de novo hearing was sought and after two days of hearings a York County trial judge vacated the child support order based upon a published decision from December 2019 called S.R.G. v. D.D.G., 2019 (Pa. Super. 355).
The 2019 case has similar facts except this time it is mother’s parents who have their grandchild. Mother has a history of mental illness. Father is in jail. Grandfather filed for divorce prompting grandmother to move to Florida with the child. The child summers with grandpa while living primarily with grandma in Florida. The opinion suggests that grandma may have been prompted to seek support in response to extensive custody litigation brought by grandpa. The panel decision expresses sympathy for her plight but concludes there is “no explicit statutory requirement that a grandparent has any duty to support a grandchild.”
But, wait…. what about the Latin name for the insect that looks like a grasshopper? You know, en loco parentis[1]. Grandmother notes that both she and her husband had assumed custody and taken (undefined) “proactive steps” to be the grandchild’s parents. They were undeniably acting in the place (loco) of the parents (parentis).
Here the published decision relies on a 1985 Superior Court case; Commonwealth ex rel McNutt v. McNutt, 496 A.2d 816, 817 (1985). There the Court ruled that as a matter of public policy it was not equitable for a grandparent who acted out of generosity to take in a child to be held liable for support of that child. It acknowledges grandmother’s reference to a 2015 Pennsylvania Supreme Court case; A.S. v. I.S., 130 A.3d 763. We reported on this case when it was published. It held that where a step-parent decided to prosecute a custody action seeking both legal and physical custody of a child, his actions bespoke an intention to assume all the rights of parental authority and, as such, exposed him to a legal support obligation in doing so. The Superior Court contrasted the grandparents in this case who had accepted the child into their household as an act of kindness knowing that father was not available and their daughter (mother) was incapable of performing the duties of a full-time parent.
The published decision in S.R.G. v. D.D.G. was acknowledged to be a close one by President Judge Jack Panella. After all, grandfather had been regularly pursuing legal custodial rights to his grandchild, albeit against grandmother rather than the natural parents. However, the Panella court affirmed trial court holding that no child support obligation could be imposed, notwithstanding the Supreme Court’s 2015 ruling in the stepparent case.
Circling back to the decision of earlier this week, the Court in J.B.S. ruled that the entry of a temporary support order which was contested and properly excepted to, does not make the determination of support res judicata. None of the orders for child support had been made final before the trial court decided that child support was not due and vacated the prior temporary order. On a different subject, grandmother in the 2020 decision sought to assert that her husband had made more direct assertions of parental control than in the 2019 case. The Superior Court held that, while custody had been assumed by the grandparents in both cases, none had taken action to terminate the rights of the birth parents.
This is a topic which is likely to be the subject of more litigation. The constellation of people raising minor children grows by the day. In some cases, the task is thrust upon the person acting in loco parentis. In A.S. v. I.S. we observed a stepparent positively asserting legal rights against a natural parent. So, we can see a line of support responsibility emerging, but it is a fragmented one. By way of example:
Natural parents voluntarily place their children with grandparents but later revoke that consent and demand the children back. Grandparents counterclaim for custody and natural parents prevail. Do grandparents have a support obligation by reason of their counterclaim?
In A.S. v. I.S., if the stepparent loses interest in seeing the child or a court decides that continued contact is not in the child’s best interest, does the support obligation cease as well?
The most recent case seems to turn on the fact that no effort was made to extinguish the rights of the natural parents. But in the case, it is fairly clear that there is custody litigation between the two grandparents that is quite serious and demonstrates that each aspires to act as parents. Isn’t the termination question a distinction without a substantive difference? Suppose both natural parents were long term incarcerated. It would then be clear that the grandparents are the only “parents” left standing. They assumed that obligation together. Isn’t grandma doubly prejudiced because she must employ resources to support the children and defend grandpa’s lawsuits. To this writer the analogy is closer to L.S.K. v. H.A.N., 813 A.2d 872 (Pa.Super. 2002) where a same sex couple agreed to start a family together using a surrogate. The Court more or less implied a contract to provide support as condition of that agreement.
In his S.R.G. v. D.D.G. opinion, P.J. Panella suggests this may benefit from a legislative solution. It is a tough one to define from a bill drafting standpoint, but both lawyers and other third parties who live with children not their own, would benefit from some clarity as a matter not just of support, but standing to pursue custodial rights.
J.B.S. v. J.L.S. Jr., 1188 MDA 2020 (6/15/20) Opinion by Judge Pellegrini.
[1] The correct answer is praying mantis or mantis regliosa.
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