Custody

The judge will decide about custody based on what s/he believes is in the best interest of the child. This is determined on a case-by-case basis. The judge will look at all of the following factors to come up with the custody arrangement that s/he thinks is in the best interest of your child:

1. which party is more likely to ensure the child’s safety;
2. the present and past abuse committed by a party or a member of the party’s household, such as a new spouse - this may include past or current protection orders that include a finding of abuse;¹
3. any involvement with a criminal child abuse case or with child protective services, including:
   
   • if the child was the subject of an “indicated” or “founded” report of child abuse;
   • if either party or a person living with either party committed the child abuse in that report;
   • details about the abuse and where the investigation took place; and
   • whether a party or a member of his/her household received protective services and if so, the details of those services;²
4. any violent behavior or assaults by either party;
5. which party is more likely to encourage and allow frequent and continuing contact between the child and another party as long as it’s safe for the child;
6. the parental duties performed by each party for the child;
7. the need for stability and continuity in the child’s education, family life, and community life, unless a change is needed to protect the safety of the child or a parent;
8. the availability of extended family;
9. the child’s relationship with any sibling(s);
10. the child’s preference considering his/her developmental stage, maturity, and judgment;
11. the attempts of a party to turn the child against the other party, except in cases of abuse where reasonable safety measures are necessary to protect the child from harm;
12. which party is more likely to maintain a loving, stable, consistent, and nurturing relationship with the child to meet the child’s emotional needs;
13. which party is more likely to attend to the daily physical, emotional, developmental, educational, and special needs of the child;
14. how close the homes of the parties are;
15. each party’s availability to care for the child or ability to make appropriate child-care arrangements;
16. the level of conflict between the parties and how willing and able they are to cooperate with one another;
17. the history of drug or alcohol abuse by a party or a member of a party’s household;
18. the mental and physical condition of a party or a member of a party’s household; and
19. any other relevant factor.¹

The judge must give heavy (substantial) consideration to the factors about the child’s safety listed in #1-4 above. For #11 above, the judge cannot consider a party’s reasonable worry about the child’s safety and reasonable efforts to protect the child as trying to turn the child against the other party. Also, the judge cannot assume that one party caused the child’s negative relationship with the other party. For #16 above, a party’s effort to protect the child or him/herself from abuse by the other party is not evidence of unwillingness or inability to cooperate with that party.¹  

¹ 23 Pa.C.S. § 5328(a)
² 23 Pa.C.S. § 5329.1(a)

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)