Emergency and Temporary Custody Orders in Pennsylvania

Special relief in a custody case

At any time after a custody action starts, the court may, on application or on its own motion, grant appropriate interim or special relief. That relief can include temporary legal or physical custody, an order bringing a child or a person with custody of the child before the court, and a direction to post security to appear with the child or to comply with an order (Pa.R.Civ.P. 1915.13). The custody statute allows an interim award of custody in the manner the special relief rules prescribe (23 Pa.C.S. § 5323(b)).

The usual custody timelines do not stop a party from seeking, or the court from ordering, emergency or interim special relief (Rule 1915.4(e)). The way you present the request, such as the form of the petition and how you get before a judge, is set by county practice, so check your county’s local rules or court administration.

• No case yet? Special relief is available after the action begins, so a complaint for custody is filed first or with the request. A county where the child is present can hear a case when the child has been abandoned or it is necessary in an emergency to protect the child because the child, a sibling, or a parent is subjected to or threatened with mistreatment or abuse (Rule 1915.2(a)(5)).
• Criminal charges. A party who learns of a charge against the other party for an offense listed in 23 Pa.C.S. § 5329(a) may move for a temporary custody order or modification, and the court must hold that hearing in an expeditious manner (§ 5330(a)).

Protection From Abuse orders

Under the Protection From Abuse Act, abuse between family or household members, sexual or intimate partners, or persons who share biological parenthood includes attempting to cause or causing bodily injury, placing another in reasonable fear of imminent serious bodily injury, false imprisonment, physically or sexually abusing minor children, and a course of conduct that places a person in reasonable fear of bodily injury (23 Pa.C.S. § 6102(a)). An adult may file a petition for themselves, and a parent, adult household member, or guardian ad litem may file on behalf of minor children (§ 6106(a)). A plaintiff is not charged fees or costs for filing or service (§ 6106(b)).

• Temporary order. If the petition alleges immediate and present danger of abuse to the plaintiff or minor children, the court holds an ex parte proceeding and may enter a temporary order it deems necessary to protect them. The temporary order stays in effect until modified or terminated after notice and a hearing (§ 6107(b)).
• Hearing. A hearing is held within ten business days of filing the petition, and the plaintiff must prove abuse by a preponderance of the evidence (§ 6107(a)). If the hearing is set within three business days after the defendant is served, the defendant can ask for a continuance until three business days have passed (§ 6107(c)(2)).
• After hours. When the court is unavailable, such as overnight and on weekends, a hearing officer may grant limited emergency relief in an ex parte proceeding; that order expires at the end of the next business day the court is available (§ 6110).
• Length. A protection order or approved consent agreement is for a fixed period of up to three years, and the court may amend it on a later petition (§ 6108(d)). It can be extended in the circumstances listed in § 6108(e).

Custody inside a PFA order

A protection order can award temporary custody or establish temporary visitation rights, and the court must consider any risk the defendant poses to the children and to the plaintiff (§ 6108(a)(4)). Among the limits in that paragraph:

• A defendant may not be granted custody, partial custody, or unsupervised visitation where the petition alleges, and the court finds after a hearing, that the defendant abused the children or poses a risk of abuse toward them, or the other grounds listed in § 6108(a)(4)(i).
• On a temporary order, if the defendant already has custody under a court order or written agreement, custody is not changed unless the court finds the defendant is likely to inflict abuse on the children or to remove them from the court’s jurisdiction before the hearing (§ 6108(a)(4)(iv)).
• A PFA case does not stop either party from filing for custody under the custody law (§ 6108(a)(4)(v)). If custody is sought in a PFA case, the Criminal Record/Abuse History Verification form applies there too, according to the comment to Rule 1915.3-2.

If a defendant violates certain provisions of a protection order, police may arrest without a warrant on probable cause, and the violation can be prosecuted as indirect criminal contempt (§§ 6113 and 6114). Past or current protection orders where there has been a finding of abuse may also be considered under the custody factors (§ 5328(a)(2)).

Primary sources

Rules and forms change. Check the current version at the source before you file.

• Pa.R.Civ.P. 1915.13, special relief
• Pa.R.Civ.P. 1915.4(e), emergency or special relief
• Pa.R.Civ.P. 1915.2, venue
• Pa.R.Civ.P. 1915.3-2, criminal record or abuse history
• 23 Pa.C.S. § 5323(b), interim award
• 23 Pa.C.S. § 5330, consideration of criminal charge
• 23 Pa.C.S. § 6102, Protection From Abuse definitions
• 23 Pa.C.S. § 6106, commencement of proceedings
• 23 Pa.C.S. § 6107, hearings
• 23 Pa.C.S. § 6108, relief
• 23 Pa.C.S. § 6110, emergency relief by minor judiciary
• 23 Pa.C.S. §§ 6113 and 6114, arrest and contempt
• Unified Judicial System, protection orders