Custody

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)