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Legal Information: Pennsylvania


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Laws current as of
December 15, 2023

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.