Getting Custody of a Grandchild When a Parent Is in Jail in Pennsylvania

A parent's incarceration does not end their parental rights in Pennsylvania — but it does create an immediate practical crisis for the child. If your grandchild's parent is in county jail or state prison and you are providing care, a custody order formalizes the legal and physical custody the court awards; use its terms when dealing with schools, healthcare providers, and benefits programs.

Your Standing to File

Incarceration alone does not give a grandparent standing. You still need to meet one of the statutory categories under Title 23:

In loco parentis (§ 5324(2)) applies when the parent — before or after being jailed — allowed you to take over parental duties. If the parent asked you to care for the child, and you have been providing housing, meals, schooling, and medical care, you are functioning in loco parentis.

Grandparent standing under § 5324(3) requires that the relationship began with parental consent or court order and that the child is dependent, at risk, or has lived with you for at least 12 months.

Act 21 (§ 5324(4)) covers third parties, including non-grandparent relatives, who have a substantial relationship with the child or have assumed responsibility in loco parentis, the child is not in a parent's care and control, and the parents have failed or refused to perform parental duties or the child is dependent.

Serving an Incarcerated Parent

The incarcerated parent has full due process rights and must receive formal notice of your custody filing. Service must be executed at the correctional facility — county jail or state prison — using one of the standard methods under Pa.R.C.P. 412:

• Certified mail, return receipt requested, restricted delivery, addressed to the parent at the facility
• Personal service by a competent adult who is not a party, arranged under facility and court procedures
• Sheriff's service if the county coordinates with the facility

Do not assume the jail will simply pass along your papers. Contact the facility's mailroom or legal services office to confirm their procedures for accepting legal service. Some facilities require service to come through specific channels.

After service, file your Affidavit of Service with the Prothonotary. You cannot get a hearing without proof of service on the record.

The Incarcerated Parent's Right to Participate

Pennsylvania courts take seriously the right of incarcerated parents to participate in custody proceedings. The court can arrange participation through:

• Writ of Habeas Corpus Ad Testificandum — a court order directing the facility to transport the parent to the courthouse for the hearing
• Secure video conferencing — increasingly common, especially for parents in state prisons far from the county courthouse
• Written submissions — the parent may file responses and affidavits through the prison's legal mail system

If the incarcerated parent actively contests your petition, the case proceeds like any contested custody matter — through conciliation, possibly mediation, and ultimately trial if no agreement is reached. The court evaluates all 14 best-interest factors under § 5328.

What Courts Consider

Incarceration does not automatically mean a parent loses custody. The court looks at the totality of circumstances:

• The length of the sentence and expected release date
• The parent's relationship with the child before incarceration
• Whether the parent maintained contact from the facility (letters, calls, visits)
• The child's current stability and adjustment in your care
• Safety factors under Kayden's Law if the parent's crime involved violence, abuse, or endangerment

A parent serving a short sentence for a nonviolent offense who maintains regular contact with the child may retain significant custodial rights. A parent serving a lengthy sentence for a violent crime presents a very different picture for the court.

What If the Other Parent Is Also Unavailable?

If both parents are incarcerated, deceased, or otherwise unable to care for the child, that unavailability may support a statutory standing basis, but it does not establish standing by itself. You still need to meet a category under 23 Pa.C.S. § 5324 or § 5325 and obtain a court order.

For a child with no available parent, you may also consider Orphans' Court guardianship under Title 20 as an alternative to Family Court custody — particularly if parental rights have been or are being terminated through a separate dependency proceeding.

Benefits While You Wait

Even before your court order is final, you may be able to access some support:

• Child-Only TANF through your County Assistance Office — this evaluates only the child's income, not yours
• Medical Assistance or CHIP for the child's healthcare
• School enrollment through the 24 P.S. § 13-1302 sworn statement process, which may allow temporary enrollment while custody is pending

Once you have the court order in hand, these processes become significantly easier and more secure.

Our Pennsylvania Guardianship and Custody Court Process Guide includes specific guidance on service at correctional facilities and navigating the hearing process when a parent participates remotely.

Frequently Asked Questions

Does incarceration terminate parental rights in Pennsylvania?

No. Incarceration alone does not terminate parental rights. Termination requires a separate legal proceeding, typically initiated by Children and Youth Services through the dependency system. A parent retains their rights — including the right to notice, participation in hearings, and eventual custody modification — throughout their incarceration.

Can the parent file for custody back after release?

Yes. A formerly incarcerated parent can petition for modification of the custody order under 23 Pa.C.S. § 5338, arguing that their release and changed circumstances warrant a change. The court will reevaluate the best-interest factors, including the parent's post-release stability, housing, employment, and relationship with the child.

What if I do not know which facility the parent is in?

Pennsylvania's Department of Corrections maintains an inmate locator for state prison inmates. For county jail inmates, check the county sheriff's or jail's inmate search. If you cannot locate the parent at all, you may need to file a Motion for Alternative Service under Pa.R.C.P. 430.

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