CUSTODY
Custody is generally viewed as consisting of two parts: physical custody and legal custody. Legal custody is the right to make decisions regarding the child. Typically legal custody is shared between both parents. Physical custody pertains to where the child physically resides. A parent that has the child overnight more than 50% of the overnights per year has "primary physical custody." Oftentimes today, parents choose to share custody on an equal or alternating basis. It is less common for the non-custodial parent to only have several weekends per month and many shared arrangements are entered these days.
CUSTODY HEARINGS. In most counties in Central Pennsylvania, the initial conference or "conciliation" is before an attorney who has been appointed as a conciliator and who is not a Judge. In some counties, a Judge will participate in a Pre-trial conference. At conciliations, the parties are encouraged to come to a mutual agreement regarding custody keeping their child's best interests in mind. If the matter cannot be resolved at that level, a full custody trial may be scheduled before a Judge. The issue at a custody hearing is what is in the "best interest of the child," not necessarily what the child wants and not what is fair to the parents. If the parties do not agree the court can consider all relevant facts in determining the best interest of the child.
FACTORS FOR DETERMINING CUSTODY
The following factors are enumerated in Pennsylvania's Title 23 Section 5328 when awarding custody. Judges must refer to the factors and make findings after a hearing as to which factors were important in the decision.
(a)
Factors. --In ordering any form of custody, the court shall determine the best interest of the child by considering all relevant factors, giving weighted consideration to those factors which affect the safety of the child, including the following:
§ 5328. Factors to consider when awarding custody.
(a) Factors.--In ordering any form of custody, the court shall determine the best interest of the child by considering all relevant factors, giving substantial weighted consideration to the factors specified under paragraphs (1), (2), (2.1) and (2.2) which affect the safety of the child, including the following:
(1) Which party is more likely to ensure the safety of the child.
(2) The present and past abuse committed by a party or member of the party's household, which may include past or current protection from abuse or sexual violence protection orders where there has been a finding of abuse.
(2.1) The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement with protective services).
(2.2) Violent or assaultive behavior committed by a party.
(2.3) The level of cooperation and conflict between the parties, including:
(i) which party is more likely to encourage and permit frequent and continuing contact between the child and the other party or parties if contact is consistent with the safety needs of the child; and
(ii) the attempts by a party to turn the child against the other party, except in cases of abuse where reasonable safety measures are necessary to protect the safety of the child. A party's good faith and reasonable effort to protect the safety of a child or self shall not be considered evidence of unwillingness or inability to cooperate with the other party. A party's reasonable concerns for the safety of the child and the party's reasonable efforts to protect the child shall not be considered attempts to turn the child against the other party. A child's deficient or negative relationship with a party shall not be presumed to be caused by the other party.
(3) A willingness and ability of a party to prioritize the needs of the child by providing appropriate care, stability and continuity for the child, considering the parental duties performed by the party on behalf of the child in the past and whether the party is willing and able to perform the duties in the future, and attend to the daily physical, emotional, developmental, educational and special needs of the child.
(4) The need for stability and continuity in the child's education, family life and community life, except if changes are necessary to protect the safety of the child or a party.
(5) (Deleted by amendment).
(6) The child's sibling and other familial relationships.
(7) The well-reasoned preference of the child, based on the child's developmental stage, maturity and judgment.
(8) (Deleted by amendment).
(9) (Deleted by amendment).
(10) (Deleted by amendment).
(11) The proximity of the residences of the parties.
(12) Each party's employment schedule and availability to care for the child or ability to make appropriate child-care arrangements.
(13) (Deleted by amendment).
(14) The history of drug or alcohol abuse of a party or member of a party's household.
(15) The mental and physical condition of a party or member of a party's household.
(16) Any other relevant factor.
(a.1) Exception.--A factor under subsection (a) shall not be adversely weighed against a party if the circumstances related to the factor were in response to abuse or necessary to protect the child or the abused party from harm and the party alleging abuse does not pose a risk to the safety of the child at the time of the custody hearing. Temporary housing instability as a result of abuse shall not be considered against the party alleging abuse.
(a.2) Determination.--No single factor under subsection (a) shall by itself be determinative in the awarding of custody. The court shall examine the totality of the circumstances, giving weighted consideration to the factors that affect the safety of the child, when issuing a custody order that is in the best interest of the child.
(b) Gender neutral.--In making a determination under subsection (a), no party shall receive preference based upon gender in any award granted under this chapter.
(c) Grandparents and great-grandparents.--
(1) In ordering partial physical custody or supervised physical custody to a party who has standing under section 5325(1) or (2) (relating to standing for partial physical custody and supervised physical custody), the court shall consider the following:
(i) the amount of personal contact between the child and the party prior to the filing of the action;
(ii) whether the award interferes with any parent-child relationship; and
(iii) whether the award is in the best interest of the child.
(2) In ordering partial physical custody or supervised physical custody to a parent's parent or grandparent who has standing under section 5325(3), the court shall consider whether the award:
(i) interferes with any parent-child relationship; and
(ii) is in the best interest of the child.
(d) List of custody factors.--Within 30 days of the receipt of a custody complaint, petition for the modification of custody or petition to intervene in matters relating to custody, the court shall provide all parties named in the complaint or petition with a copy of this section.
(Dec. 18, 2013, P.L.1167, No.107, eff. Jan. 1, 2014; Apr. 15, 2024, P.L.24, No.8, eff. 120 days; June 30, 2025, P.L.18, No.11, eff. 60 days)
2025 Amendment. Act 11 amended subsec. (a) and added subsec. (d).
2024 Amendment. Act 8 amended subsec. (a) and added subsecs. (a.1) and (a.2). See section 1 of Act 8 in the appendix to this title for special provisions relating to findings and declarations.
2013 Amendment. See section 6 of Act 107 in the appendix to this title for special provisions relating to applicability.
Cross References. Section 5328 is referred to in sections 5323, 6340 of this title; sections 1908, 6307 of Title 42 (Judiciary and Judicial Procedure).
(b)
Gender neutral. --In making a determination under subsection (a), no party shall receive preference based upon gender in any award granted under this chapter.
