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Legal Information: Pennsylvania

Pennsylvania Custody

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Basic info and definitions

What 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.1

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.1

1 23 Pa.C.S.A. § 5322(a)

What are the pros and cons 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.

Should 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.

Who can get custody or visitation

Who 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.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?

1 23 Pa.C.S.A. § 5323(a)
2 23 Pa.C.S.A. § 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.A. § 5324

Can a parent who committed violence get custody or visitation?

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,1 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.2

Note: There are certain crimes 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.)3 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.4

1 23 Pa.C.S. § 5328(a)(2)
2 23 Pa.C.S. § 5329(a)
3 23 Pa.C.S. § 5329(b)
4 23 Pa.C.S. § 5329.1(a), (1)(b)

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

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:

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

Can I file for custody while I am still living with the other parent?

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.1

1 23 Pa.C.S.A. § 5323(h)

I am the child's grandparent or great-grandparent. Can I get custody or visitation?

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

In addition, grandparents and great-grandparents can file for visitation (known as partial physical custody or supervised physical custody)1 under one of the following conditions:

  1. If a child’s parent has died, a parent or grandparent of the deceased parent can file.
  2. If the child:
    • lived with the grandparent or great-grandparent for a period of at least 12 months in a row (not counting any brief temporary absences of the child from the home); and
    • was removed from the grandparent’s home by the parent(s). Note: In this case, the custody petition must be filed within six months after the child is removed from the grandparent’s home.
  3. If the relationship between the grandparent or great-grandparent and the child began with the consent of one of the parents or because of a court order, and now the parents of the child:
    • began a custody proceeding in court; and
    • do not agree as to whether the grandparents or great-grandparents should have custody.2

In ordering visitation (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 (but 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.3

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

How the custody process works

What are the steps to file for custody?

Before filing in court for custody, you may want to consider drawing up an out-of-court agreement with the other parent. Usually, parents will have to be flexible when it comes to custody and visitation for the benefit of the child. Often, parents who fight for sole custody will litigate in court for months or even years and end up with some sort of joint custody agreement after settlement or trial.

However, sometimes fighting for sole custody is necessary because you can’t agree with the other parent, the other parent is not allowing contact, or you fear for your child’s well-being. Especially with domestic violence, many abusers will try to keep power and control over the victim-survivor through the child, so joint custody isn’t recommended due to the power difference in the relationship.

If you decide to file in court for custody, the process usually looks similar to this:

1. File for custody. You may file in the family court or a court of a different name that hears custody cases. Generally, you will file in the county where the child lives, and, depending on the circumstances, you may be able to request an emergency or temporary order as part of your petition. The exact petition you file may depend on whether you are married or not:

  • If you are a married parent who is also filing for divorce, you can usually include the custody petition within the divorce process.
  • If you are a married parent who is not filing for divorce, you can file for custody on its own in the county where the child has been living for at least six months.
  • If you are an unmarried parent, you can also seek custody in court. However, if paternity hasn’t been established, which means that the father hasn’t been legally recognized, then this process will likely have to happen first or as part of the custody process.

The specific steps for filing for custody will depend on your exact case and the procedures in your county. Some county courts may have staff who can help you complete the forms you need to file. However, court staff cannot give you legal advice or represent you. The custody petition forms will be available at your local courthouse. You may also be able to get the forms from your local law library or online. We recommend that you get assistance from a Pennsylvania lawyer to make sure that you have all of the correct forms and that you have filled them out properly. You can use our PA Courthouse LocationsPA Download Court Forms, and PA Finding a Lawyer pages to find your county’s court, the forms, and local lawyers.

When you file your petition for custody, the clerk will tell you when to return to court for further action.

2. Prepare for the custody process

Custody cases are complicated, so you may want to consider getting a lawyer. If you can hire an attorney, you can use this list of questions as your guide when deciding who to hire. If you are representing yourself in court, you can learn about the court process and how to present evidence in our Preparing for Court – By Yourself section.

During the court process, you will try to prove why you should have your child’s custody. When preparing for court, you can gather evidence that helps make your case as to why you should have custody of the child. This process should be directed by the factors the law says a judge should consider when deciding custody. You can see How will a judge make a decision about which parent gets custody? for more information. It’s important to consider that the judge will be focused on what is in the best interest of your child and many states consider that this is to have a relationship with both parents.

Keep in mind that custody court cases often take a long time. Going through this process can be emotionally and financially draining. Do what you can to take care of yourself. If you have experienced domestic violence, you may want to contact a local domestic violence organization. An advocate there may be able to support you through the process and help you plan for your safety.

3. Prepare for trial

There will be one or more hearings, including a trial, if you and the other parent cannot reach an agreement by yourselves or through mediation.  During trial, you or your attorney will be able to present evidence and cross-examine the other party to help the judge make a decision.

If you are a victim of domestic violence, you can plan for your safety while in court. Ask the judge to include protections in your custody and visitation orders. For example, you can ask for some of the following terms:

  • communication between the parents must be in writing;
  • communication can only be related to the child; and
  • a neutral third party should be present at the exchange of the child or should be the one to drop off and pick up the child.

To avoid future conflicts, you should also try to be as specific as possible about how you and the other parent will make important decisions; who will have the child on holidays, birthdays, etc.; and when and where you and the other parent will pick up and drop off the child.

4. Options if you lose the custody case

If you are unhappy with the judge’s order, there may be a couple of options that could be filed immediately- for example:

  • 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.

There could also be an option that you may take in the future, but not immediately after the judge gives the order. A motion or petition to change (modify) the order could be filed later on if a “substantial change of circumstances” happens. A few examples of substantial changes in circumstances could be if the other parent gets sent to jail or gets charged with child abuse or neglect; if you move or the other parent moves to another state; or if your child’s needs significantly change.

To find out more about how the process works in your area, please contact a lawyer. Please visit our PA Finding a Lawyer page to find legal help in your area.​

How 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;1
  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;2
  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.1

1 23 Pa.C.S.A. § 5328(a)
2 23 Pa.C.S.A.
§ 5329.1

How much does it cost to file for custody?

The filing fee for custody is different in each county. Contact the clerk (“prothonotary”) for your county court, a domestic violence organization, or a legal services provider in your area 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.1 You will have to complete an affidavit of income and expenses and attach this to the form as well. 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. Be sure to discuss fees in detail before agreeing to hire any attorney. Go to How do I pick the right attorney? What questions do I ask? to see some other questions that may help you pick the right lawyer for you. 

1 231 Pa. Code Rule 240

Do 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.

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

In which state do I file for custody? Is Pennsylvania my child's "home state"?

If your child has lived in Pennsylvania for the last six months in a row, this is considered your child’s “home state” and you can generally file for custody in Pennsylvania. Temporarily leaving the state, such as going on vacation, does not change anything.1

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 birth1;
  • 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;2 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.3

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.4

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 Places that Help page.  You can also write in with a question to our Email Hotline for more information.

1 23 Pa.C.S.A. § 5402
2 23 Pa.C.S.A. § 5424(a)
3 23 Pa.C.S.A § 5421(a)
4 23 Pa.C.S.A. § 5423

Can I get a temporary custody order?

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

Can 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.

After a custody order is in place

If a custody order is already in place, how can I get it changed?

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.A. § 5338

If I move to a new state, can I transfer my child custody case there?

After a final custody order is issued, there may come a time when you and your children move to a different state. For information about how to request to transfer the custody case to a new state, please go to the Transferring a custody case to a different state section in our general Custody page. However, it’s important to keep in mind that you may likely first need to get permission from the court or from the other parent to move your children out of state. Please talk to a lawyer to make sure your plans to move don’t violate your custody order or your state’s parental kidnapping laws.

I have a custody order. Can I move with my child?

If your move will significantly harm (impair) the other parent’s ability to use (exercise) his/her custody rights with your child, this is considered a “relocation,” and you can only move if:

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

If you are planning a “relocation,” 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 So, we recommend that you consult with a Pennsylvania custody lawyer to check if your planned move would be considered a “relocation,” which requires 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)

How do I tell the other parent I want to move?

If your move will significantly harm (impair) the other parent’s ability to use (exercise) his/her custody rights, you must follow specific rules to inform him/her of your plans.

You must send a “proposed relocation notice” by certified mail, return receipt requested, to the other parent or anyone with custody rights at least sixty days before your moving day. However, if you didn’t know and couldn’t have known that far ahead, and you can’t postpone your move to give the 60-day notice, then you must send it within ten days of finding out about the move.1

In your notice, you must give the other parent the following information, if you have it:

  1. the address where you and your child will live and the mailing address if it is different;
  2. the names and ages of anyone who lives in or plans to live in your new home;
  3. the new home telephone number;
  4. the name of the new school district and school your child will attend;
  5. the date when you plan to move;
  6. the reasons why you want to move;
  7. your proposal for a revised custody and visitation schedule;
  8. any other information you think is appropriate to include;
  9. a “counter-affidavit” form that the other parent can use to object to your proposed move and any change (modification) to your existing custody order- to see what the counter-affidavit must look like, go to section 5337 of the law on our Selected Pennsylvania Statutes page, and look at section (d)(1); and
  10. a warning to the other parent that if s/he does not file in court objecting to your proposed move within 30 days after receipt of the notice, s/he can no longer object to it.2

Note: If the court kept your address confidential because of domestic violence, ask a Pennsylvania lawyer if you can leave out any of the information listed above. Go to PA Finding a Lawyer.

Even if the other parent does not object, you still have to file certain documents in court before you move.2  Go to section 5337 of the law on our Selected Pennsylvania Statutes page and look at section (e) to see what you need to file.3

1 23 Pa.C.S. § 5337(c)(1), (c)(2)
2 23 Pa.C.S. § 5337(c)(3)
3 23 Pa.C.S. § 5337(e)

What could happen if I don't give proper notice to the other parent?

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)

If the other parent objects to the move, what happens?

If the other parent or anyone with custody rights objects, s/he must file an objection in court within 30 days of receiving your relocation notice. S/he has to serve you with this objection by sending you a copy of his/her papers, called a “counter-affidavit,” by certified mail, return receipt requested. Then, the judge will have a hearing to decide if you can relocate.1 

The judge will usually have the hearing after the other parent files his/her objection and before you move.2 However, if the judge believes it’s necessary, s/he could hold the hearing even before receiving the other parent’s objection.3 Also, if the judge believes it’s an emergency, the judge could give you temporary approval to move first and later hold the hearing to make a final decision.4 If the judge does this, it doesn’t necessarily mean that s/he will rule in your favor after the hearing, and there is a risk you could have to move back. 

At the hearing, you will have to convince the judge that moving is in your child’s best interest based on the factors listed in What factors will the judge consider when deciding if I can move with my child?5 If you don’t have a lawyer, we have information to help you prepare for your hearing in our Preparing for Court – By Yourself section.

After the hearing, if the judge approves your relocation, s/he will change (modify) your existing custody order or make a new custody order.6

1 23 Pa.C.S. § 5337(d)(2)
2 23 Pa.C.S. § 5337(g)(1)
3 23 Pa.C.S. § 5337(g)(2)
4 23 Pa.C.S. § 5337(g)(3)
5 23 Pa.C.S. § 5337(i)(1)
6 23 Pa.C.S. § 5337(g)(4)

What factors will the judge consider when deciding if I can move with my child?

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)

The effect of military deployment on custody/visitation

Can 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).1 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.1

1 51 Pa.C.S.A § 4109(a)

If 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.1

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.2

1 51 Pa.C.S.A § 4109(a.1); 23 Pa.C.S.A. § 5323(a)
2 51 Pa.C.S.A § 4109(a.1)

If 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.1

1 51 Pa.C.S.A. § 4109(b)

How 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.1

1 51 Pa.C.S.A. § 4109(c)

What 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.1

1 51 Pa.C.S.A § 4109(d)