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Know the Laws: Pennsylvania

UPDATED October 12, 2012

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Please consider getting help from an organization in your area before proceeding with court action regarding custody issues.  You can visit PA Where to Find Help for local resources and legal assistance.

 

How the custody process works

back to topHow will a judge make a decision about custody?

Custody decisions are based on a "best interest of the child" standard.  The best interest of the child is determined on a case-by-case basis.  The judge will look at the following factors to come up with an arrangement that s/he thinks is in the best interest of the child (and s/he must give heavy consideration to those factors which affect the safety of the child):

  1. Which party is more likely to encourage and permit frequent and continuing contact between the child and another party;
  2. The present and past abuse committed by a party or member of the party's household (such as a new spouse); and whether there is a continued risk of harm to the child or to an abused party and which party can better provide proper physical safeguards and supervision of the child;
  3. The parental duties performed by each party on behalf of the child;
  4. The need for stability and continuity in the child's education, family life and community life;
  5. The availability of extended family;
  6. The child's sibling relationships;
  7. The preference of the child, based on the child's maturity and judgment;
  8. The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm;
  9. Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child to meet the child's emotional needs;
  10. Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child;
  11. How nearby the homes of the parties are;
  12. Each party's availability to care for the child or ability to make appropriate child-care arrangements;
  13. The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another; (Note: A party's effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party);
  14. The history of drug or alcohol abuse of a party or a member of a party's household;
  15. The mental and physical condition of a party or a member of a party's household; and
  16. Any other relevant factor.*
* 23 Pa.C.S.A. § 5328(a)

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back to topDo I need a lawyer?

No, you do not need a lawyer to file for custody.  However, to prepare and present your best case, it is recommended that you have a lawyer represent you.  The information we provide here should get you started and help you with basic questions you might have.  However, custody issues are complicated and the assistance of an attorney can be helpful.  For a list of legal resources, please see our PA Finding a Lawyer page.

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back to topHow much does it cost to file for custody?

The filing fee for custody is different in each county.  Contact your county's prothonotary (see PA Courthouse Locations), a domestic violence organization, or a legal services provider in your area (see PA Where to Find Help for a list of resources) for more information.

If you cannot afford the filing fee for custody, you can request that the judge waive the filing fee for you by filing a “petition to proceed in forma pauperis (IFP)" when you file for custody.  You will have to complete an affidavit of income and expenses and attach this to the form as well.  If you receive welfare or Social Security Income (SSI) you will have to provide proof of benefits.*  Your county's prothonotary may have IFP forms, or you may be able to get a form from a legal services provider in your area.  The forms may also be available on your local court's website.  You can find the website for the court in your area here.

If you hire a private attorney, your attorney will also charge you fees.  Each attorney charges different fees for his/her services -- you should be sure to discuss fees in detail before agreeing to hire any attorney.

* Petition to Proceed In Forma Pauperis (IFP), Court of Common Pleas of Philadelphia County. http://courts.phila.gov/pdf/forms/domestic-relations/prose-ifp.pdf; 231 Pa. Code Rule 240.

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back to topWhat are the steps for filing for custody?

The specific steps for filing for custody will depend on your exact case and the procedures in your county.

Some counties (but not many) offer court assistance in filing for custody by having staff who can help you complete the forms.  However, court officials cannot offer you legal advice or represent you in court.  The forms you need to file a petition for custody will be available at your local courthouse, and it may also be possible to get the forms from your local law library or online (see Download Court Forms).  It is recommended that you get assistance from an attorney to make sure that you have all of the correct forms and that you have filled them out properly.

When you file your petition for custody, the court will give you information about when to return to court for further action.

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back to topCan I get temporary custody as a part of a protection from abuse order (PFA) against the other parent?

You may be able to get temporary custody of your children as a part of your PFA. It is recommended that you get legal advice from an experienced lawyer to address the complex issues that surround custody and filing a petition for a protection from abuse order. For more information on getting a PFA, see our Protection from Abuse Order (PFA) page.

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back to topCan I get temporary custody?

A person who has the right to file for custody in PA may be able to get an interim (temporary) custody order for physical custody, legal custody, partial physical custody, or supervised physical custody.*  The procedures for getting emergency custody may vary from county to county.

If you recently came to Pennsylvania from another state (and PA is not the child's home state), a judge may grant you temporary emergency custody if it is necessary in an emergency to protect the child because the child or a sibling or parent of the child is subjected to or threatened with mistreatment or abuse.**   Such a temporary order usually lasts for an amount of time that a judge believes would be enough to allow you to go back to the child's home state to file an appropriate custody petition there.***

It is generally best to seek the advice of an experienced custody lawyer if you believe that circumstances in your case need the court’s immediate intervention.

* 23 Pa.C.S.A. § 5323(b)
** 23 Pa.C.S.A. § 5424(a)
*** 23 Pa.C.S.A. § 5424(b)

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WomensLaw.org would like to thank Ellen Adler and Sharon Lopez at the Pennsylvania Coalition against Domestic Violence for their assistance with this page.

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