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.

If you or the other parent will be deploying, you may make an agreement or ask the judge for an order that temporarily gives custodial responsibility to someone else.

Custodial responsibility includes:

• caretaking authority – the right to care for the children and have them live with, spend time with, or visit with you (physical custody);
• decision-making authority – the right to make important decisions about the children (legal custody); and
• limited contact – the right to allow another person to have some contact with the children, less than partial physical custody.¹ 

To read more about temporary custody agreements and orders during military deployment, go to Military deployment and custody.

The judge will make a custody order that s/he feels is in the best interest of the child after considering many factors.¹ The following people may file for any form of physical custody or legal custody:

1. a parent of the child;
2. 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);²
3. 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;

4. only in a situation where neither parent has any form of care and control of the child, anyone can apply if s/he:

   • has assumed or is willing to assume responsibility for the child; and

   • has a constant (sustained), substantial, and sincere interest in the welfare of the child. To evaluate this, the judge can consider factors such as the nature, quality, extent, and length of the involvement that this person has had in the child’s life.³

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 or visitation?

¹ 23 Pa.C.S. § 5323(a)
² 23 Pa.C.S. § 5324; see, for example, T.B. v. L.R.M., 567 Pa. 222, 786 A.2d 913 (2001); S.A. v. C.G.R., 856 A.2d 1248 (2004)
³ 23 Pa.C.S. § 5324

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:

• rape;
• sexual assault;
• statutory sexual assault;
• Institutional sexual assault; or
• incest.¹

The only exception to this is if all of the following are true:

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.²

In addition, if you are the mother of a child conceived as a result of rape or incest, you have the option of filing a termination of parental rights petition against the offender-father.³

¹ 23 Pa.C.S. § 5329(b.1)(1)
² 23 Pa.C.S. § 5329(b.1)(2)
³ 23 Pa.C.S. §§ 2511(a)(7); 2512(a)(1)

Anyone, including grandparents or great-grandparents, can file for any form of custody if they meet the requirements in Who is entitled to seek custody?

Grandparents and great-grandparents can also file for visitation.¹ Under Pennsylvania law, visitation may refer to partial physical custody, shared physical custody, or supervised physical custody.²

Grandparents or great-grandparents can file for visitation if:

1. the child’s parent died and the grandparent or great-parent filing for visitation was related to the parent who died;
2. the child:
   
   • lived with the grandparent or great-grandparent for at least 12 months in a row not counting any brief temporary absences of the child from the home; and
   • was removed from that home by a parent. If this is the reason for filing, the grandparent or great-grandparent must file for visitation within six months after the child is removed from his/her home; or
3. the child’s relationship with the grandparent or great-grandparent began with a parent’s consent or because of a court order, and now the parents of the child:
   
   • have filed a custody proceeding in court; and
   • do not agree about the grandparent or great-grandparent having visitation.¹

In ordering visitation, the judge should consider the following:

• the amount of personal contact between the child and the grandparent or great-grandparent before s/he filed the visitation petition (except in situation #2 above);
• whether giving the grandparent or great-grandparent visitation would interfere with any parent-child relationship; and
• whether it is in the best interest of the child.³

¹ 23 Pa.C.S. § 5325
² 23 Pa.C.S. § 5322(b)
³ 23 Pa.C.S. § 5328(c)

The judge will decide about custody based on what they believe is “in the best interest of the child.”¹ This is determined on a case-by-case basis, looking at the whole situation. The judge will look at many factors to come up with the custody arrangement they think is in your children’s best interest.

These “best interest” factors include:

1. which parent is more likely to make sure the children are safe;
2. whether either parent or someone in their home is abusive or has committed abuse in the past; this could include looking at any current or past protection orders, in which the judge determined the abuse happened;¹
3. whether there has been child abuse and involvement with protective services, including:
   • if the children were the subject of an “indicated” or “founded” child abuse report;
   • if either parent or someone living with them committed the child abuse in that report; and
   • details about the abuse, when it happened, and where it was investigated;²
4. whether either parent acted violently or assaulted someone;
5. the level of cooperation and conflict between the parties, which includes:
   • which parent is more likely to encourage and allow the children to have frequent and continuing contact with the other parent, as long as it’s safe; and
   • whether either parent has tried to turn the children against the other, except in cases of abuse where reasonable safety measures are needed to protect the children;
6. how much each parent puts the children’s needs first and provides appropriate care and stability, considering:
   • what parenting responsibilities each had in the past or will take on in the future; and
   • how each parent makes sure the children’s daily physical, emotional, developmental, educational, and special needs are met;
7. the need for stability and continuity in the children’s education, family life, and community life, unless a change is needed to protect the safety of the children or a parent;
8. the children’s relationships with siblings and other family members;
9. the children’s preferences if they are old enough and mature enough;
10. how close the parents live to each other;
11. each parent’s work schedule and availability to care for the children or to arrange appropriate childcare;
12. whether either parent or someone in their home has a history of drug or alcohol abuse;
13. the mental and physical condition of each parent and the people in their home; and
14. anything else that is relevant.¹

The judge is supposed to put strong weight on the children’s safety factors listed in items 1-4 above.³ The judge is also supposed to consider if either parent or someone they live with has been convicted of certain crimes, which are listed in Section 5329 of the Domestic Relations laws. If someone was convicted of one of these crimes, the judge must make sure they aren’t a danger to the children.⁴  

Note: The judge is not supposed to hold it against you if you took steps to protect yourself or your children because of the other person’s abuse. The judge also shouldn’t hold it against you if you had temporary housing instability because of the abuse, such as staying in a shelter or with someone else to get away from the abuser.⁵  

¹ 23 Pa.C.S. § 5328(a)
² 23 Pa.C.S. §§ 5328(a)(2.1); 5329.1(a)
³ 23 Pa.C.S. § 5329
⁴ 23 Pa.C.S. § 5328(a.2)
⁵ 23 Pa.C.S. § 5328(a.1)

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.

If you are going to be in court without a lawyer, our Preparing for Court – By Yourself section may be useful to you.

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.¹ 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.² 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.³

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.

¹ 23 Pa.C.S. § 5323(b)
² 23 Pa.C.S. § 5424(a)
³ 23 Pa.C.S. § 5424(b)

Learn about what types of custody are available and how domestic violence might affect custody in your state. Think about what you will ask for, what would be best for your child, and what would be safest for both of you.  

You can prepare for court by gathering evidence that helps explain why you should have custody. Your evidence should relate to the “best interest factors” that a judge looks at to determine what’s best for your child. You can see How will a judge make a decision about custody? for more information.

Custody cases are complicated, so you may want to get a lawyer. If you can hire someone, you can use this list of questions as your guide when deciding which lawyer to choose. If you can’t hire a lawyer, you may at least want to try getting a free or low-cost consultation to help you make a legal strategy for your case.

The next step in the custody process is to have “preliminary” court dates. Preliminary means introductory or preparatory. These might have a different name in your state, such as “first appearance,” “status conference,” or something else. They are when certain issues can be dealt with in the early stages of the case. Some of the issues that might be dealt with are:

• problems with service of process;
• referrals to mediation;
• temporary custody and visitation orders; and
• pretrial motions.

During this stage, the judge will often give temporary custody and visitation orders that last while the case continues. In some cases, the judge may assign a guardian ad litem or an attorney for the child.

For more information to help you prepare for the preliminary court dates, go to The first appearance in our Before the Trial section. 

If you disagree with the judge’s order, there are a couple of legal actions you would need to file right away, such as a motion for reconsideration or an appeal.

• A motion for reconsideration asks the judge to decide differently based on the law or new evidence.
• An appeal moves the case to a higher court and asks that court to review the lower court’s decision due to a judge’s error.

Each state has a set time limit to file these actions, usually ranging from 10 to 60 days. To know your case’s exact timeframe, you should ask an attorney in your state.  

You might also be able to ask the judge to change your order in the future if there is a “substantial change of circumstances” after the case is decided. You can do this by filing a motion or petition to change (modify) the order. However, usually, this can only be filed under certain circumstances. Here are a few examples of events that might be considered substantial changes in circumstances:

• The other parent gets sent to jail or charged with child abuse or neglect;
• The other parent is not following the custody and visitation order; or
• Your child’s needs change in a big way.

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.¹ To change (modify) 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 transfer the case (change the jurisdiction) 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.

¹ 23 Pa.C.S. § 5338

If your move will significantly harm (impair) the other parent’s ability to use his/her custody rights, this is considered a relocation. You can only relocate if:

• everyone with custody rights to your child agrees; or
• the judge approves it.¹

If you are planning to move, you must follow the rules listed in How do I tell the other parent that I want to move?

Unlike some other states, Pennsylvania’s relocation law does not say it only applies to someone moving out of the state or a certain distance away.² It is generally recommended that you consult with a Pennsylvania custody lawyer to check if your planned move would be considered a relocation that would require you to follow these rules. To find lawyers in your area, go to PA Finding a Lawyer.

¹ 23 Pa.C.S. §§ 5322(a); 5337(b)
² See 23 Pa.C.S. § 5337(a)

If you don’t follow the notice rules listed in How do I tell the other parent that I want to move?, the judge might hold this against you when deciding whether or not to:

1. allow you to relocate;
2. change your or the other parent’s custody rights;
3. order you to return your child to the non-relocating parent if you already moved without reasonable notice;
4. make you pay for the other parent’s reasonable costs and legal fees to object to the relocation in court; or
5. issue an order of contempt and penalties (sanctions) against you.¹

However, the judge will also consider if the reason you didn’t give notice was because of abuse. If so, the judge should “ease up” on you when considering which of the above should apply in your case.²

¹ 23 Pa.C.S. § 5337(j)
² 23 Pa.C.S. § 5337(k)

To decide if you can move with your child, the judge will look at the following factors and give “heavy consideration” to the ones about your child’s safety:

1. the nature, quality, amount of involvement, and length of your child’s relationships with you, the non-relocating parent, any siblings, and other significant people in your child’s life;
2. your child’s age, developmental stage, and needs, including any special needs, and the likely impact the move will have on his/her physical, educational, and emotional development;
3. whether it’s possible to keep the relationship between your child and the non-relocating parent through appropriate custody arrangements, considering the locations and financial circumstances of both parents;
4. your child’s preference in light of his/her age and maturity;
5. whether either parent has a pattern of helping or harming the child’s relationship with the other parent;
6. whether the move will improve your and your child’s quality of life financially, emotionally, educationally, etc.;
7. your reasons and motivation for seeking the move;
8. the other parent’s reasons and motivation for opposing it;
9. any present and past abuse committed by a parent or someone in the parent’s household and if there is a continued risk of harm to your child or you; and
10. any other factor that affects your child’s best interest.¹

At the hearing, you have to prove to the judge that relocation is in your child’s best interest and that you have a good motive for moving. The non-relocating parent has to prove that s/he has a good motive for objecting.²

¹ 23 Pa.C.S. § 5337(h)
² 23 Pa.C.S. § 5337(i)

If you will be deploying, you must give the other parent written notice within 72 hours (3 days) of learning of the deployment. If you can’t tell the other parent within 72 hours, because the circumstances of your military service prevent it, you must tell the other parent as soon as possible. If the other parent will be deploying, they must give you the same notice.¹

Then, within 120 hours (5 days), each parent must give the other a plan for how they will handle custody during the deployment.²

Note: Notice in writing can be in a physical record, like written on a piece of paper. Or it can be in an electronic record, like an email or text message.³

¹ 51 Pa.C.S. § 4605(a)
² 51 Pa.C.S. § 4605(b)
³ See 51 Pa.C.S. § 4602

An agreement about temporary custody during a deployment must state the following:

• where the parent will be deploying, for how long, and under what conditions;
• how caretaking responsibilities will be divided among the deploying parent, the other parent, and anyone else (a “nonparent”);
• if a nonparent is taking care of the children,
  
  • what kind of legal custody they will have; in other words, which decisions they can make while the children are in their care; 
  • they must do what the parent would want unless that is not in the best interest of the children;
• whether a nonparent can have limited contact with the children and how much contact they can have;
• how disputes will be resolved if multiple people are sharing custodial responsibility;
• how the deploying parent will have contact with the children, for example, if they will talk by phone, video, email, etc., and how often;
• whether the other parent or a nonparent will need to do anything to help the children contact the deploying parent;
• who will pay for the communication costs;
• what kind of contact the deploying parent will have with the children;
• an acknowledgment that the agreement can’t change child support obligations – a parent would need to file a child support modification petition in court to do that;
• that this agreement will end when the parent returns from deployment;¹ 
• that anyone trying to change the children’s residence must follow the relocation rules explained in I have a custody order. Can I move with my child? and How do I tell the other parent that I want to move?;² and
• who will file this agreement in court, if it needs to be filed.³

If a nonparent will have temporary custodial responsibility, that person must also sign a statement that they will follow the parents’ agreement.⁴

¹ 51 Pa.C.S. § 4611(c)(1)-(4), I(6)-(10)
² 51 Pa.C.S. § 4611(b)(3); 23 Pa.C.S. § 5337
³ 51 Pa.C.S. § 4611(c)(11)-(c)(12)
⁴ 51 Pa.C.S. § 4611(c)(5)

If you will be deploying, you may temporarily give (delegate) some or all of your custodial responsibility to your spouse (the children’s stepparent) or another family member.¹

You can do this by signing a “power of attorney.”¹ This is a legal document that gives another person the power to act for someone else in certain matters.

However, you may only do this if:

• there is a court order granting you sole legal custody; or
• there is a court order currently in effect that prohibits contact between the other parent and the children, such as a protection from abuse order.¹

¹ 51 Pa.C.S.A. § 4614(a)

A judge may temporarily change (modify) a custody and visitation order because of a military deployment. The judge may not permanently change the order unless the deploying parent agrees (consents).¹

If you or the other parent receives notice of a deployment, either parent can file a “motion regarding custodial responsibility during deployment.” In that motion, you can ask the judge to:

• temporarily change an existing custody or visitation order; or
• issue a new temporary order during the deployment.²

The court must schedule a fast-tracked (expedited) hearing before the deploying parent leaves for deployment.³ At the hearing, the judge will decide what temporary custody arrangement is in the best interest of the children.⁴

¹ 51 Pa.C.S.A. § 4621(a)
² 51 Pa.C.S.A. § 4621(b)
³ 51 Pa.C.S.A. § 4622
⁴ See 51 Pa.C.S.A. § 4626(a)

This is someone with whom the children have a significant bond, and the person is the children’s:

• stepparent (the deploying parent’s spouse);
• sibling;
• aunt or uncle;
• cousin; or
• grandparent.¹

The person could be related to the children by blood (biologically), marriage, or adoption.¹

If there is no one with that kind of familial bond, this could also be an adult who had primary care or physical custody of the children for:

• 60 days in a row or more during the past 12 months; or
• 730 days or more during the past 5 years.¹

¹ 51 Pa.C.S.A. § 4602