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:
- a parent of the child;
- 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
- 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;
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?
Generally, no. 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:
Note: The only exception to this is if:
- the other parent of the child asks that the offender-parent be given some form of custody;
- the child is of suitable age and consents to the custody order; and
- the judge determines that custody would be in the best interest of the child.2
1 23 Pa.C.S.A. § 5329(b.1)(1)
2 23 Pa.C.S.A. § 5329(b.1)(2)
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:
- If a child’s parent has died, a parent or grandparent of the deceased parent can file.
- 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.
- 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)
Can I file for custody while I am still living with the other parent?
Yes. 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)