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 will consider many factors when deciding custody and visitation, including past and present violent or abusive behavior.1 Specifically, the judge will consider if the parent or someone in 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. The judge must also consider it if the person was convicted of or pleaded guilty to a similar crime in another state. The judge must review this criminal behavior and determine that the person does not pose a threat of harm to the child before granting any form of custody or visitation.2
Certain crimes would make it very difficult for a parent to get custody. If a parent is convicted of murdering the other parent, s/he cannot get custody, partial custody, or supervised physical custody unless the child is old enough to consent to it.3 Also, if a parent was convicted of a sexual offense that caused the child to be conceived, that 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 was identified as the perpetrator as well as the 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), (a)(2.2), (a.2)
2 23 Pa.C.S. § 5329(a)
3 23 Pa.C.S. § 5329(b)
4 23 Pa.C.S. § 5329.1(a)
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:
- 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
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)
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 if they meet the requirements in Who is entitled to seek custody?
Grandparents and great-grandparents can also file for visitation.1 Under Pennsylvania law, visitation may refer to partial physical custody, shared physical custody, or supervised physical custody.2
Grandparents or great-grandparents can file for visitation if:
- the child’s parent died and the grandparent or great-parent filing for visitation was related to the parent who died;
- the child:
- lived with the grandparent or great-grandparent for at least 12 months in a row not counting any brief temporary absences of the child from the home; and
- was removed from that home by a parent. If this is the reason for filing, the grandparent or great-grandparent must file for visitation within six months after the child is removed from his/her home; or
- the child’s relationship with the grandparent or great-grandparent began with a parent’s consent or because of a court order, and now the parents of the child:
- have filed a custody proceeding in court; and
- do not agree about the grandparent or great-grandparent having visitation.1
In ordering visitation, the judge should consider the following:
- the amount of personal contact between the child and the grandparent or great-grandparent before s/he filed the visitation petition (except in situation #2 above);
- whether giving the grandparent or great-grandparent visitation would interfere with any parent-child relationship; and
- whether it is in the best interest of the child.3
1 23 Pa.C.S. § 5325
2 23 Pa.C.S. § 5322(b)
3 23 Pa.C.S. § 5328(c)
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)