Custody Types and the Best Interest Factors in Pennsylvania

Pennsylvania's custody terms

Pennsylvania splits custody into legal custody, the right to make major decisions for the child, including medical, religious, and educational decisions, and physical custody, the actual physical possession and control of the child (23 Pa.C.S. § 5322(a)).

• Primary physical custody: the right to physical custody for the majority of time.
• Partial physical custody: the right to physical custody for less than a majority of the time.
• Shared physical custody: more than one person has the right to physical custody, each with significant periods of custodial time.
• Sole physical custody and sole legal custody: one person’s exclusive right.
• Shared legal custody: more than one person has legal custody.
• 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.

“Visitation” is not one of the custody types in Chapter 53. Where another statute uses that word for custody, it may be read as partial, shared, or supervised physical custody (§ 5322(b)).

What the court can award

After considering the § 5328 factors, the court may award any of these types of custody if it is in the child’s best interest: shared, primary, partial, sole, or supervised physical custody, and shared or sole legal custody (§ 5323(a)). The court must state the reasons for its decision on the record in open court or in a written opinion or order (§ 5323(d)).

In a case between the parents, there is no presumption that custody should be awarded to a particular parent. In a case between a parent and a nonparent, the parent is presumed to get custody, and that presumption can be rebutted by clear and convincing evidence (§ 5327).

The best interest factors

In ordering any form of custody, the court determines the child’s best interest by considering all relevant factors, giving substantial weighted consideration to the factors in paragraphs (1), (2), (2.1), and (2.2), which affect the child’s safety (§ 5328(a)). The listed factors include:

• (1) Which party is more likely to ensure the child’s safety.
• (2) Present and past abuse committed by a party or a 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 child abuse and protective services information described in § 5329.1(a).
• (2.2) Violent or assaultive behavior committed by a party.
• (2.3) The level of cooperation and conflict between the parties, including which party is more likely to encourage and permit frequent and continuing contact with the other party if contact is consistent with the child’s safety needs, and attempts by a party to turn the child against the other party, except in cases of abuse where reasonable safety measures are necessary.
• (3) A party’s willingness and ability to prioritize the child’s needs by providing appropriate care, stability, and continuity, considering the parental duties the party has performed in the past and is willing and able to perform in the future.
• (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.
• (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.
• (11) The proximity of the parties’ residences.
• (12) Each party’s employment schedule and availability to care for the child or ability to make appropriate child-care arrangements.
• (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.

Paragraphs (5), (8), (9), (10), and (13) were deleted by amendment, so the numbering skips. Within 30 days of receiving a custody complaint or modification petition, the court must give every named party a copy of § 5328 (§ 5328(d)).

No single factor is determinative by itself. The court examines the totality of the circumstances, giving weighted consideration to the factors that affect the child’s safety (§ 5328(a.2)). No party receives a preference based on gender (§ 5328(b)).

Criminal history and safety conditions

When a party seeks any form of custody, the court must consider whether that party or a household member has been convicted of, or pleaded guilty or no contest to, any offense listed in 23 Pa.C.S. § 5329(a), and must determine that the party does not pose a threat of harm to the child before making any custody order for that party. A listed conviction is not by itself determinative (§ 5329(a.1)). This is why a custody complaint, modification petition, or contempt petition is filed with a Criminal Record/Abuse History Verification form, and the other party must complete one too (Pa.R.Civ.P. 1915.3-2).

If the court finds a history of abuse of the child or a household member by a party, or a present risk of harm, and awards any form of custody to the party who committed the abuse or whose household member did, the order must include safety conditions and the reasons for them (§ 5323(e)). If the court finds by a preponderance of the evidence that there is an ongoing risk of abuse of the child, there is a rebuttable presumption that it will only allow supervised physical custody with the party who poses the risk, and it favors professional supervision (§ 5323(e.1)).

Parenting plans

In a contested case, the court may require each party to submit a parenting plan covering the schedule, holidays and vacations, education and religious involvement, health care, child care, transportation, and how future disputes will be resolved (23 Pa.C.S. § 5331). A parenting plan and the position a party takes in it are not admissible as evidence by another party (§ 5331(a)).

Access to records

A party with sole or shared legal custody is generally entitled to the child’s medical, dental, religious, and school records and the address of the child and any other party, and access may not be denied solely because of the physical custody schedule (§ 5336(a)). The court may not order disclosure of an abuse victim’s address or other protected information listed in § 5336(b), and it can decline to release other information if it states its reason on the record (§ 5336(c)).

Who can ask for custody

A parent can file for any form of custody, as can a person who stands in loco parentis to the child and, under conditions set out in the statute, a grandparent or another individual (23 Pa.C.S. § 5324). Grandparents and great-grandparents also have limited standing to seek partial or supervised physical custody in the situations listed in § 5325. A third party must plead the facts that give them standing in paragraph 9 of the complaint (Pa.R.Civ.P. 1915.3(e)).

Primary sources

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

• 23 Pa.C.S. § 5322, definitions
• 23 Pa.C.S. § 5323, award of custody
• 23 Pa.C.S. §§ 5324 and 5325, standing
• 23 Pa.C.S. § 5327, presumptions
• 23 Pa.C.S. § 5328, factors to consider when awarding custody
• 23 Pa.C.S. § 5329, consideration of criminal conviction
• 23 Pa.C.S. § 5331, parenting plan
• 23 Pa.C.S. § 5336, access to records and information
• Pa.R.Civ.P. 1915.3, commencement and pleading standing
• Pa.R.Civ.P. 1915.3-2, criminal record or abuse history