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CUSTODY

Current Pennsylvania custody law

Current Pennsylvania custody law requires courts to make their decisions based on the best interests of the child. (See the list of Key Words and Phrases below.) A court decides what is in a child's best interest on a case-by-case basis. The court will look at all of the important factors that affect the child's physical, intellectual, moral, and spiritual well being.

To decide what is in a child's best interest, the court is required to consider 16 best interest factors and must give "weighted consideration" to any factor that affects the safety of the child:

  1. Which party is likely to encourage and permit frequent and continuing contact with the child and another party;
  2. The present and past abuse committed by a party or member of the party's household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate safeguards and supervision of the child;
  3. The parental duties performed by each party on behalf of the child; (Note: "Parental Duties" is defined as "the physical, emotional and social needs of the child." 23 Pa. C.S. § 5322.)
  4. The need for stability and continuity in the child's education, family life and community life;
  5. The availability of extended family;
  6. The child's sibling relationships;
  7. The well-reasoned preference of the child, based on the child's maturity and judgement;
  8. 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;
  9. Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child's emotional needs;
  10. Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child;
  11. The proximity of the residences of the parties;
  12. Each party's availability to care for the child or ability to make appropriate child-care arrangements;
  13. The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. 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;
  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.  23 Pa. C.S. § 5328(a).

The order of the factors is not important. It is up to the judge to decide how much influence each factor will have on his or her decision. For instance, the judge may not give much weight to the child's preference if the child in the case is very young. But, the judge is required to give added weight to any factor that may affect the safety of the child. An attorney can help you think about what factors to bring to the judge's attention. Collectively, the factors are designed to help the judge determine which parent is better suited to care for the child based on past, present, and potential future behavior of each party.

Court Must Consider Criminal Convictions and/or Charges

Another issue judges must consider is whether a parent or household member has been convicted of certain crimes. There are many crimes that the court must consider, including violent or sex-related crimes, terroristic threats, stalking, drug and alcohol related crimes, violation of a Protection From Abuse Order, and crimes related to the welfare of children. (See the official statute for a full list of criminal convictions.) 23 Pa. C.S. § 5330. If a party or household member has a prior conviction, the judge must provide for an evaluation to determine if that parent or household member will pose a threat of harm to the child before the judge can award any custody to that person. The judge can also order the offender to attend counseling with a counselor experienced in dealing with people who have committed that particular crime.

The judge will also consider whether a party in the custody action has certain criminal charges. The list of crimes considered for criminal convictions is the same as when there is a criminal charge. If a party has a criminal charge, the other party can ask the court for temporary custody or to modify an existing custody order. The court will then examine whether the party poses a risk of harm to the child and will rule accordingly.

In custody cases, the court also has the power to order the parties to go to counseling, have an evaluation, attend informational parenting programs, or give access to certain records. Also, the court can appoint an attorney to act on behalf of the child in the case, either as a "guardian ad litem" (best interests attorney) or counsel for the child.

Custody law is complex and has a lot of requirements. It is best to contact an attorney to discuss the specifics of a particular case.

Domestic Violence and Custody

Most parents who are separating or divorcing are able to agree on a custody arrangement that works best for their child. In those instances, the court will typically enter an order that records the parents' arrangement. In about 20% of custody cases, parents need the judge to determine the best custody arrangement. These are referred to as contested custody cases. Domestic violence often creates unique problems in these contested custody cases.  See the Custody Process webpage for more information about custody process in Pennsylvania.

For many families troubled by domestic violence, custody proceedings arise just after the abused parent leaves the abusive relationship. This is the most dangerous time for victims and their child. Research shows that the risk of increased violence against the adult victim skyrockets when he or she attempts to leave the abuser. There are many reasons why a victim stays for varying periods of time.

The risk of violence against the child also may increase after separation. While the family is intact, the abused parent often goes to great lengths to protect the child from the abuser and buffer the impact. After separation, the abuser may use the child to further exercise control over the victimized parent. And, if the abuser has parenting time with the child, the victimized parent is no longer present to shield the child from the abuser. The victimized parent's inability to intervene and buffer the violence may lead to an increased risk of child abuse. In many instances, a victimized parent stays in the home with the abusive parent out of concern for the safety of the child. 

Pennsylvania law now requires the court to include safety provisions in a custody order in any case where there is an ongoing risk of harm to either the child or a parent.

Specific equals enforceable

In custody matters involving domestic violence, a custody order that lists specific details about the custody arrangement may help to limit problems between the parents. The more specific the order is, the more easily that order can be enforced. 

A typical order will address 

  • How much physical and legal custody each parent will have. 
  • Specific pick-up and drop-off times for custody exchanges. A good order should also be clear about the locations for pick-ups and drop-offs. 
  • Each parent's custodial time on holidays and summer vacations. 

Court Must Include Safety Provisions If Ongoing Risk of Harm to Party or Child 

Custody orders can also include provisions to maintain the safety of an abused parent and the child. A court can include provisions that limit contact between the parents or specify when and what type of contact may occur

  • reflect any specific conditions (if a Protection From Abuse order is in effect) forbidding contact or allowing only limited contact between the parents 
  • order supervised or third party exchange to limit or avoid contact between the parents 
  • order that the abusive parent's visits with the child are supervised by someone

The court is required to include safety provisions in any order where it finds an ongoing risk of harm to either the child or a party.

Supervised Physical Custody, Supervised Exchange and Third Party Exchange

If the abusive parent is going to have regular contact with the child, supervised exchange or third party exchange may reduce the amount of contact between the abusive parent and victimized parent.

Supervised Physical Custody:

In many situations, the victimized parent worries that the child will not be safe if left alone with the other parent. If so, the concerned parent may request that the other parent have supervised physical custody with the child. Depending on the safety issues involved, the court may order visits with the child to be supervised by a third party, like a relative or friend. Where available, visits with the child may be supervised by a court or an organization equipped to provide this service. If a third party is ordered to supervise a custody visit, this person should be carefully chosen. The supervisor should be someone who will not be intimidated, manipulated or coerced by the abusive parent.

Supervised Exchange:

A judge also may order the abuser's visits to be supervised by a court agency or held at a supervised visitation center. Supervised visitation centers have staff who are trained in domestic violence. Center supervisors observe and record the visiting parent's behavior with the child, and report back to the court. They also schedule visits to prevent contact of one parent with the other. If there are centers in the area, parents can get referrals from the courts, Family Services, or Child Protective Services.

Third Party Exchange:

In a third party exchange, one parent delivers the child to another person who then exchanges the child with the other parent. Third party exchange can limit contact between the abusive parent and the victimized parent to provide safety. The abused parent should choose a third party who is reliable and will not be intimidated, manipulated or coerced by the abusive parent.

Key Words & Phrases from Pennsylvania Custody Law

Best Interest of the Child - This is the legal standard that a judge must use to make custody decisions. The best interest of the child standard requires a judge to consider "all relevant factors." 23 Pa. C.S. § 5328(a). Pennsylvania law currently lists 16 factors that may be relevant to the best interest of the child. This list includes a "catchall" factor that allows the court to look at "any other relevant factor" when making its determination. 23 Pa. C.S. § 328(a)(16).

In Forma Pauperis -  In civil actions, like custody, when a court decides that a party cannot afford to pay the cost of litigation, the court can waive those costs. In order to proceed "in forma pauperis," the parent must show the court he or she cannot afford to pay by filing a financial affidavit with the court. Pennsylvania Rule of Civil Procedure 240.

Legal Custody -  "The right to make major decisions on behalf of the child, including, but not limited to, medical, educational and religious decisions." 23 Pa. C.S. § 5322.
        Shared Legal Custody - "The right of more than one individual to legal custody of the child." 23 Pa. C.S. § 5322.
        Sole Legal Custody - "The right of one individual to exclusive legal custody of the child."

Physical Custody "The actual physical possession and control of the child." 23 Pa. C.S. § 5322.
       Partial Physical Custody - "The right to assume possession of the child for less than a majority of the time." 23 Pa. C.S. § 5322.
       Primary Physical Custody "The right to assume physical custody of the child for the majority of time." 23 Pa. C.S. § 5322.
       Shared Physical Custody "The right of more than one individual to assume physical custody of the child, each having significant periods of physical custodial time with the child." 23 Pa. C.S. § 5322.
       Sole Physical Custody "The right of one individual to exclusive legal custody of the child." 23 Pa. C.S. § 5322.
       Supervised Physical Custody "Custodial time during which an agency or an adult designated by the court or agreed upon by the parties monitors the interaction between the child and the individual with those rights." 23 Pa. C.S. § 322.

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