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Know the Laws: Pennsylvania

UPDATED May 25, 2017

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Please consider getting help from a legal 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.

Basic info and definitions

back to topWhat is custody?

There are two main forms of custody, physical and legal:

Physical custody is the actual physical possession and control of a child (a person under 18 years old).  It refers to the person with whom the child lives, either all of the time or part of the time.  Sole physical custody is when one parent alone has physical custody (the other parent may get visitation) and shared physical custody is both parents share physical custody, with each parent having significant periods of time with the child.  Custody can also be divided into primary (when one parent has the child for the majority of the time) and partial (when one parent has the child for less than a majority of the time).  Physical custody can also be supervised, when an agency or another adult monitors the interaction between the parent and child.*

Legal custody is the right to make major decisions about the child, which typically include educational, religious, and medical decisions.  Legal custody can be sole (given to one parent alone) or shared.* 

* 23 Pa.C.S.A. § 5322(a)

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back to topWhat are the advantages and disadvantages of getting a custody order?

There may be advantages to obtaining a custody order, including:

  • Gaining access to your child if the other parent has control of the child;
  • Having a fixed custody schedule (telling each parent when they can visit and/or take possession of the child) that is enforceable by the judge;
  • The right to make legal decisions about your child; and
  • The right to have your child live with you.

Without a custody order, it is possible that you may not have these legal rights, even if you’re the parent that takes care of the child every day. But if you file for custody, the other parent may also request these rights and it will be up to the judge to decide.

There are also many reasons people choose not to get a custody order from a court.  Some people decide not to get a custody order because they don't want to get the courts involved, they have an informal agreement with the other parent that works well for them, or they may think that going to court will result in the other parent being awarded more custody or visitation rights than they are comfortable with.  If you decide not to get a custody order, you and the other parent may likely have an equal right to make decisions and decide on living arrangements.  

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back to topShould I start a court case to ask for supervised visitation?

If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for visitation or custody, you may not have much to lose by asking that the visits be supervised.

However, if there is no current court case, please get legal advice BEFORE you start a court case to ask for supervised visits. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.

In the great majority of cases, supervised visits are only a temporary measure. Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the father on a few visits or the visits might be supervised by a relative for a few months -- and if there are no obvious problems, the visits will likely become unsupervised. Oftentimes, the father ends up with more frequent and/ or longer visits than he had before you went into court. He may even end up with joint custody.

In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out if that is best in your situation, please go to PA Finding a Lawyer to seek out legal advice.

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Who can get custody or visitation

back to topWho is entitled to seek custody?

The judge will make a custody order that s/he feels is in the best interest of the child after considering many factors.*  The following people may file for any form of physical custody or legal custody:

  • A parent of the child;
  • A person who stands in loco parentis (in place of the parent) to the child (Note: Non-parents with in loco parentis status will generally have performed the duties that a parent usually performs - such as being the primary caretaker - for a significant period of time);**
  • A grandparent of the child who is not in loco parentis to the child but:
    • whose relationship with the child began either with the consent of a parent of the child or under a court order;
    • who assumes or is willing to assume responsibility for the child; and
    • when one of the following conditions is met:
      • the child has been determined to be a "dependent child" under 42 Pa.C.S. Ch. 63 (relating to juvenile matters);
      • the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity; or
      • the child has, for a period of at least 12 months in a row, resided with the grandparent (not counting any brief temporary absences of the child from the home), and was then removed from the home by the parents -- in this case, the custody petition must be filed within six months after the child is removed from the grandparent's home.***
Also, grandparents and great-grandparents may file for partial physical custody or supervised physical custody even if they don't meet the requirements above For more information, go to I am the child's grandparent or great-grandparent. Can I get custody?

* 23 Pa.C.S.A. § 5323(a)
** See, for example, T.B. v. L.R.M., 567 Pa. 222, 786 A.2d 913 (2001)(granting visitation to lesbian partner who cared for children during relationship); S.A. v. C.G.R., 856 A.2d 1248 (2004)(rejecting a father's claim that his wife could not claim custody of their child who was born via a surrogate mother and never formally adopted by the wife)
*** 23 Pa.C.S.A. § 5324

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back to topCan a parent who committed violence get custody or visitation?

Possibly. The judge is supposed to consider each parent’s or household member’s past and present violent or abusive conduct when deciding custody and visitation matters,* but the judge will also consider many other factors.  However, when a parent (or another party) seeks any form of custody, the judge must consider if the parent or a member of his/her household has been convicted of or has pleaded guilty (or "no contest") to any of the crimes listed in section 5329 of the law or to a similar crime in another state.  The judge has to consider such criminal conduct and determine that the parent does not pose a threat of harm to the child before making an order of custody, partial custody or visitation to that parent.** 

Note: There are certain crimes, however, that would make it very difficult for a parent to get custody.  If a parent is convicted of murdering the other parent, however, s/he cannot get custody, partial custody or supervised physical custody (unless the child is of suitable age and consents to the order.)***  Also, if the parent was convicted of a sexual offense that caused the child to be conceived, the offender-parent may not be able to get custody.  For more information, go to If my child was conceived from sexual assault, can the offender get custody or visitation?

In addition, the judge must consider child abuse when determining custody.  If the child was the subject of an indicated or founded report of child abuse, the judge must consider whether a party or a member of the party's household has been identified as the perpetrator and the date and circumstances of the child abuse.  The judge must also consider whether or not the person seeking custody or a member of his/her household was ever provided services by Child Protective Services and the circumstances surrounding those services.****

* 23 Pa.C.S.A. § 5328(a)(2)
** 23 Pa.C.S.A. § 5329(a)
*** 23 Pa.C.S.A. § 5329(b)
**** 23 Pa.C.S.A. § 5329.1(a),(b)

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back to topIf my child was conceived from sexual assault, can the offender get custody or visitation?

Generally, no.  If a person is convicted of any of the following sexual offenses that resulted in the child being conceived, the judge cannot give that offender-parent any type of custody:

Note: The only exception to this is if:

  1. the other parent of the child asks that the offender-parent be given some form of custody;
  2. the child is of suitable age and consents to the custody order; and
  3. the judge determines that custody would be in the best interest of the child.**

* 23 Pa.C.S.A. § 5329(b.1)(1)
** 23 Pa.C.S.A. § 5329(b.1)(2) 

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back to topCan I file for custody while I am still living with the other parent?

Yes.  If you and the other parent are living "separate and apart" from each other while still in the same residence, you can file for custody but the order will not be effective until one parent physically leaves the home or a judge awards one of you "exclusive possession" of the home.*

* 23 Pa.C.S.A. § 5323(h)

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back to topI am the child's grandparent or great-grandparent. Can I get custody?

Anyone (including grandparents or great-grandparents) can file for any form of custody of the child if:

  • s/he stands in loco parentis (in place of the parent) to the child.* (Note: Non-parents with in loco parentis status will generally have performed the duties that a parent usually performs - such as being the primary caretaker - for a significant period of time).*1
Also, grandparents (not great-grandparents) can file for any form of custody if:
  • s/he is not in loco parentis to the child but:
    • his/her relationship with the child began either with the consent of a parent of the child or under a court order;
    • s/he assumes or is willing to assume responsibility for the child; and
    • when one of the following conditions is met:
      • the child has been determined to be a "dependent child" under 42 Pa.C.S. Ch. 63 (relating to juvenile matters);
      • the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity; or
      • the child has, for a period of at least 12 months in a row, resided with the grandparent (not counting any brief temporary absences of the child from the home), and was then removed from the home by the parents -- in this case, the custody petition must be filed within six months after the child is removed from the grandparent's home.*2
Grandparents and great-grandparents may seek partial physical custody or supervised physical custody if any of the following circumstances are met:
  1. If a child's parent has died, the deceased person's parent(s) or grandparent(s) (the grandparents or great-grandparents of the child) can file;
  2. If a child's parents have been separated for six or more months or are in the process of a divorce;
  3. If the child has, for a period of at least 12 months in a row, resided with the grandparent or great-grandparent (not counting any brief temporary absences of the child from the home), and was then removed from the home by the parents -- in this case, the custody petition must be filed within six months after the child is removed by the parent(s).*3
In ordering partial or supervised physical custody, the judge should consider the following:
  • the amount of personal contact between the child and the grandparent/great-grandparent before s/he filed the custody petition (this doesn't apply to the situation described in #3 above);
  • whether the partial or supervised custody would interfere with any parent-child relationship; and
  • whether it is in the best interest of the child.*4
* 23 Pa.C.S.A. § 5324(2)
*1 See, for example, T.B. v. L.R.M., 567 Pa. 222, 786 A.2d 913 (2001)(granting visitation to lesbian partner who cared for children during relationship); S.A. v. C.G.R., 856 A.2d 1248 (2004)(involving a wife whose husband had their child via a surrogate mother).
*2 23 Pa.C.S.A. § 5324
*3 23 Pa.C.S.A. § 5325
*4 23 Pa.C.S.A. § 5328(c)

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back to topI am the child's uncle, aunt, sibling, etc. Can I get custody?

No, unless you are acting in place of the child's parent (in loco parentis). In that case, you may be able to file for custody of the child. For more information see Who is entitled to seek custody?

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How the custody process works

back to topIn which state do I file for custody?

You can file for custody in Pennsylvania if your child has lived in Pennsylvania for the last six months in a row.  (Temporarily leaving the state, such as going on vacation, does not change anything.)*

There are certain exceptions to this rule.  You may be able to file in Pennsylvania even if your child has not lived in Pennsylvania for the last six months if:

  • Your child is less than six months old and has lived in Pennsylvania since birth*;
  • Your child is in Pennsylvania and it is necessary in an emergency to protect the child because you, your child, or the child’s sibling are subjected to or threatened with abuse;** or
  • Your child lived in Pennsylvania for at least six months but:
    • Moved away from Pennsylvania, although you must still be living there; and
    • S/he has not lived in any other state for 6 months in a row since leaving Pennsylvania.***

If you already have a custody order from another state and you want to change it, you will likely have to file a petition to change (modify) that order in the state where it was originally issued.****

If you've recently moved to or fled to Pennsylvania, a domestic violence organization or legal services agency in your area might be able to help.  For a list of resources, please see our PA Where to Find Help page.  You can also write to us to Ask A Question for more information.

* 23 Pa.C.S.A. § 5402
** 23 Pa.C.S.A. § 5424(a)
*** 23 Pa.C.S.A § 5421(a)
**** 23 Pa.C.S.A. § 5423

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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. Information related to any involvement of the child or parent/party with a criminal child abuse proceeding or with protective services (related to child abuse), including:
    • if the child has been the subject of an indicated or founded report of child abuse;
    • if either parent/party or a person living with either parent/party has been reported for child abuse (when the allegations were “indicated” or “founded”);
    • the details of the abuse, and where the abuse investigation took place; and
    • if a parent/party or a member of his/her household has been provided services through protective services and if so, the type of services provided, the date, and other circumstances surrounding the provision of services;**
  4. The parental duties performed by each party on behalf of the child;
  5. The need for stability and continuity in the child's education, family life and community life;
  6. The availability of extended family;
  7. The child's sibling relationships;
  8. The preference of the child, based on the child's maturity and judgment;
  9. 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;
  10. Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child to meet the child's emotional needs;
  11. Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child;
  12. How nearby the homes of the parties are;
  13. Each party's availability to care for the child or ability to make appropriate child-care arrangements;
  14. 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);
  15. The history of drug or alcohol abuse of a party or a member of a party's household;
  16. The mental and physical condition of a party or a member of a party's household; and
  17. Any other relevant factor.*
* 23 Pa.C.S.A. § 5328(a)
** 23 Pa.C.S.A.
§ 5329.1

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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 Unified Judicial System of Pennsylvania website also has county-specific forms available to download.

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.  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 PA 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 Orders (PFA) page.

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back to topCan I get temporary custody?

A person who has the right to file for custody in Pennsylvania 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 Pennsylvania 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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After a custody order is in place

back to topIf a custody order is already in place, how can I get it changed?

Because custody is decided in the best interest of the child, an order is not usually permanent.  If a custody order is already in place, either party can ask the judge to change it by filing a petition for a modification of custody.*

To modify (change) a custody order, you will need to go to the court that gave you the order, even if you have moved.  Generally, once a court has heard a case, that court will keep the case, even if you move to another state.  If you have moved, you can ask the judge to change the jurisdiction (transfer the case) to the new state that you are in although this is often hard to do, especially if the other parent disagrees.  See Can I change the state where my case is being heard? for more information about transferring a case to another state.

If you would like to change a custody order because of military deployment, see The effect of military deployment on custody/visitation for more information.

Modifying a custody order or changing the jurisdiction is often complicated and, as with all custody issues, we recommend that you talk to a lawyer about this.  Go to our PA Finding a Lawyer page to find someone who can help you.

* 23 Pa.C.S.A. § 5338

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back to topCan I change the state where my case is being heard?

If you, your child(ren), the other parent, or anyone acting as parent has moved to another state, you may be able to change the state where the custody case is being heard.  You will have to ask the judge who is hearing the case to consider allowing the case to be heard in another state.  If the judge finds that the child, the parents or anyone acting as the parent does not have significant contact with the original state, or if they are not presently living in the state, s/he will consider changing the state where the case is heard based on the legal principle that Pennsylvania is an “inconvenient forum.”*

The judge will consider several factors when deciding whether or not Pennsylvania is an inconvenient forum, including:

  • Whether domestic violence has occurred and is likely to occur in the future, and which state can offer the best protection to you and your child(ren);
  • How long your child has lived outside of Pennsylvania;
  • How far the Pennsylvania court is from the court in the state where you would like the case to be heard;
  • Your financial situation and the financial situation of the other parent;
  • The location of any evidence that would be important to the custody case, including your child's testimony;
  • The ability of the Pennsylvania court and the other state's court to resolve the issue quickly and how difficult it would be to present the necessary evidence to the court; and
  • How well each court knows the facts and issues of your case.*
Changing where the case is heard is often complicated, and as with all custody issues, we strongly recommend that you talk to a lawyer about this.  You can go to our PA Finding a Lawyer page to find someone who can help you or write to our Email Hotline.

* 23 Pa.C.S.A. § 5427(a)-(b)

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Relocating with your child after a custody order is in place

back to topHow do I notify the other parent that I want to relocate?

Pennsylvania law defines relocation as "a change in a residence of the child which significantly impairs the ability of a non-relocating party to exercise custodial rights."*  Unlike some other states, Pennsylvania's relocation laws do not specify whether or not they only apply to people who want to relocate out of state or people who want to move beyond a certain mile radius.  We recommend consulting with a custody attorney in Pennsylvania to find out if your planned move would fit the definition of a "relocation" according to Pennsylvania law.

If you want to move and you have a custody order in place, Pennsylvania says that a relocation (as defined above) cannot happen unless everyone who has custody rights to the child consents to the move or the judge approves the relocation.**  There are very specific requirements of how you have to notify those who have custody rights. 

The notice must be sent by certified mail, return receipt requested, and it has to be given no later than:

  • the 60th day before the date of the proposed relocation; or
  • the 10th day after you know about the relocation but only if:
    • you did not know and could not reasonably have known of the relocation in enough time to give the 60-day required notice; and
    • it is not reasonably possible to delay the date of relocation to meet the 60-day notice requirement.***
The following information, if available, must be included with the notice of the proposed relocation (Note: If you are victim of abuse, and your address was kept confidential by the court, check with an attorney to see what things from the list below you can leave out):
  1. The address of the intended new residence and the mailing address (if different).
  2. The names and ages of the people who currently live, or intend to live, in the new residence.
  3. The home telephone number of the intended new residence, if available.
  4. The name of the new school district and school.
  5. The date of the proposed relocation.
  6. The reasons for the proposed relocation.
  7. A proposal for a revised custody schedule.
  8. Any other information which you think is appropriate to include.
  9. A "counter-affidavit" which can be used by those who receive the notice to object to the proposed relocation and the modification of a custody order (to see what the counter-affidavit must look like, go to section 5337 of the law on our PA Statutes page, and look at section (d)(1))
  10. A warning to the non-relocating party that if s/he does not file an objection with the court to the proposed relocation within 30 days after receipt of the notice, that s/he can no longer object to the relocation.****
These cases can be complicated, and we strongly suggest that you get an attorney to help you, especially if the other parent does not want you to move.  See our PA Finding a Lawyer page to find legal help.

* 23 Pa.C.S.A. §5322(a)
** 23 Pa.C.S.A. § 5337(b)
*** 23 Pa.C.S.A. § 5337(c)(1),(2)
**** 23 Pa.C.S.A. § 5337(c)(3)

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back to topWhat could happen if I don't give proper notice to the non-relocating party?

If you don't provide proper notice to the non-relocating party, the judge can treat this in one of the following ways:

  1. as a factor in making a decision regarding the relocation;
  2. as a factor in determining whether custody rights should be modified;
  3. as a reason for ordering the return of the child to the non-relocating party if you already relocated without reasonable notice;
  4. as a basis for ordering you to pay reasonable expenses and counsel fees of the non-relocating party's objection to the relocation; and/or
  5. as a basis for contempt and sanctions (penalties) against you.*
However, the judge must also consider whether or not your failure to provide reasonable notice was caused in whole, or in part, by abuse.  If so, the judge should consider that as a reason to "ease up" on you when considering which of the above should apply in your case.**

* 23 Pa.C.S.A. § 5337(j)
** 23 Pa.C.S.A. § 5337(k)

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back to topIf the other parent objects to the move, what happens?

If the other parent/person with custody rights objects, s/he must file an objection with the court within 30 days of receiving your proposed relocation notice and s/he has to serve a copy to you by certified mail, return receipt requested.  Then, the judge will hold a hearing to decide if you can relocate.*  Note: Even if no objection is filed, you have to file certain documents with the court before relocating.*1  Go to section 5337 of the law on our PA Statutes page, and look at section (e) to see what you need to file.  Normally, the judge will hold the hearing after receiving the other parent's objection and before the relocation occurs but it is possible that the judge could decide on his/her own that a hearing is necessary and hold a hearing even before receiving the other parent's objection.  In some cases, if the judge believes that there are emergency circumstances, the judge could approve the relocation first and then hold a hearing to make a final decision.*2  (However, this doesn't necessarily mean that the judge's ultimate decision after a hearing would favor you.)*3  If the judge approves the proposed relocation, s/he will modify any existing custody order or establish the terms and conditions of a custody order.*4

* 23 Pa.C.S.A. § 5337(d)(2)
*1 23 Pa.C.S.A. § 5337(e)
*2 23 Pa.C.S.A. § 5337(g)(1)-(3)
*3 23 Pa.C.S.A. § 5337(l)
*4 23 Pa.C.S.A. § 5337(g)(4)

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back to topWhat factors will a judge consider when deciding if I can relocate with my child?

In deciding whether to allow your proposed relocation, the judge should consider the following factors and give heavy consideration to those factors which affect the safety of the child:

  1. The nature, quality, and amount of involvement, and the length of the child's relationship with you and with the non-relocating party, siblings and other significant people in the child's life.
  2. The age, developmental stage, needs of the child and the likely impact the relocation will have on the child's physical, educational and emotional development, taking into consideration any special needs of the child.
  3. The possibility of preserving the relationship between the non-relocating party and the child through appropriate custody arrangements, considering the location and financial circumstances of the parties.
  4. The child's preference, taking into consideration the age and maturity of the child.
  5. Whether there is an established pattern of conduct of either party to help or harm the relationship of the child and the other party.
  6. Whether the relocation will improve the general quality of life financially, emotionally, educationally, etc., for you and for your child. 
  7. The reasons and motivation of you for seeking the relocation and of the other party for opposing the relocation.
  8. The present and past abuse committed by a party or member of the party's household and whether there is a continued risk of harm to the child or you (if you were abused).
  9. Any other factor affecting the best interest of the child.*
It is your responsibility to prove to the judge that the relocation will serve the best interest of the child based on the factors above and that your motives in moving are good ones.  The non-relocating party has to prove that s/he has good motives in objecting to the relocation.**

* 23 Pa.C.S.A. § 5337(h)
** 23 Pa.C.S.A. § 5337(i)

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The effect of military deployment on custody/visitation

back to topCan I file to modify my custody order while the other parent is deployed?

The court cannot change a custody order while one parent is absent due to military duty (deployment).*  If the parent who is not on military duty files a petition to change custody, the court is not permitted to modify or amend the custody order that was in effect on the date of deployment.  However, if it is in the child’s best interest, the court is permitted to enter a temporary custody order while the parent is deployed.*

* 51 Pa.C.S.A § 4109(a)

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back to topIf a parent with custody rights has moved away due to military duty, can s/he give those rights to his/her family members?

Yes – under certain conditions.  If a parent receives notice of deployment, the court may issue an order temporarily granting that parent’s custody rights to his/her family members.  The custody rights could include shared, primary, partial, sole, or supervised physical custody and/or shared or sole legal custody.*

However, the following circumstances must be met:

  • The parent leaving for active duty and the family member(s) seeking temporary custody must petition the court together;
  • The petition must include a proposed schedule for care of the child by the family member(s);
  • The proposed custody schedule cannot go beyond the custodial rights of the parent leaving for active duty; and
  • The court must find that temporary custody with the family members is in the child’s best interest.**
* 51 Pa.C.S.A § 4109(a.1); 23 Pa.C.S.A. § 5323(a)
** 51 Pa.C.S.A § 4109(a.1)

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back to topIf a temporary order is issued during a parent’s military duty, what happens when the parent returns?

If a temporary order is issued during a parent’s military duty, the judge will reinstate the original custody order that was in effect before the parent’s deployment once the deployed parent returns.*

* 51 Pa.C.S.A. § 4109(b)

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back to topHow will a court consider a parent’s absence due to military duty?

If a parent petitions to change custody after the return of a deployed parent, the court is not permitted to consider the deployed parent’s absence as a factor when determining what custody arrangement is in the child’s best interest.*

* 51 Pa.C.S.A. § 4109(c)

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back to topWhat happens if a deployed parent does not attend the court hearing for a petition to modify the custody order?

Under normal circumstances, if a respondent doesn’t appear in court to answer a petition to modify a custody order, the petitioner may be able to get an order based on that parent’s default.  However, a person’s failure to appear in court due to deployment is not a sufficient reason to change a custody order in that person’s absence.*

* 51 Pa.C.S.A § 4109(d)

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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 a prior version of this page.

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