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Legal Information: Pennsylvania

Custody

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Updated: 
February 5, 2020

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)