Child Custody: Standards & Realities

Pennsylvania custody law is governed by 23 Pa.C.S. Chapter 53. The overriding standard in every custody case is the best interest of the child , not the preferences of the parents. In 2024 and 2025, the legislature made the most significant changes to custody law in over a decade: mandatory safety protections, a rebuttable presumption for supervised custody in abuse cases, expanded criminal conviction review, and new procedural requirements. Those changes arrived through Act 8 of 2024 (eff. Aug. 13, 2024) and Act 11 of 2025 (eff. Aug. 29, 2025).

Types of Custody

Legal custody is the right to make major decisions about the child's life: education, healthcare, religious upbringing. It can be sole (one parent decides) or shared (both parents have equal decision-making authority).

Physical custody is where the child lives. It can be primary (child lives primarily with one parent), shared (child spends substantial time with both parents, which does not have to be 50/50), partial (regular schedule with the non-primary parent), or sole (one parent has all physical custody).

Act 8 added two new defined categories of physical custody. Professional supervised physical custody means custodial time overseen by a professional with education and training in the dynamics of domestic violence, sexual assault, child abuse, trauma, and the impact of domestic violence on children (§ 5322). Nonprofessional supervised physical custody means custodial time overseen by a person without that training. The distinction matters because the court must now favor professional supervision when ordering supervised custody in abuse cases.

Act 8 also defined "safety of the child" to include physical, emotional, and psychological well-being, and "temporary housing instability" as a period not to exceed six months from the date of the last incident of abuse (§ 5322).

The Best Interest Factors (§ 5328(a))

The court must consider all relevant factors, including the following (23 Pa.C.S. § 5328(a)):

1. (1) Which party is more likely to ensure the safety of the child.
2. (2) The present and past abuse committed by a party or member of the party's household, including PFA or sexual violence protection orders where there has been a finding of abuse.
3. (2.1) Child abuse history and involvement with protective services (§ 5329.1(a)).
4. (2.2) Violent or assaultive behavior committed by a party.
5. (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, 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 child. A party's good faith efforts to protect the child from abuse shall not be held against them. A party's reasonable concerns for the child's safety and 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.
6. (3) A willingness and ability to prioritize the needs of the child by providing appropriate care, stability, and continuity, considering past parental duties and whether the party is willing and able to attend to the child's daily physical, emotional, developmental, educational, and special needs.
7. (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.
8. (6) The child's sibling and other familial relationships.
9. (7) The well-reasoned preference of the child, based on the child's developmental stage, maturity, and judgment.
10. (11) The proximity of the residences of the parties.
11. (12) Each party's employment schedule and availability to care for the child or ability to make appropriate child-care arrangements.
12. (14) The history of drug or alcohol abuse of a party or member of a party's household.
13. (15) The mental and physical condition of a party or member of a party's household.
14. (16) Any other relevant factor.

No single factor is determinative (§ 5328(a.2)). The court examines the totality of circumstances, giving weighted consideration to the safety factors. Gender is never a factor (§ 5328(b)).

Abuse Victim Exception (§ 5328(a.1))

Act 8 added subsection (a.1), which provides that a factor under § 5328(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 child at the time of the hearing. This is a critical protection: a parent who left an abusive household, lost housing stability, changed jobs, or disrupted the child's school situation while fleeing abuse cannot have those circumstances held against them in the custody analysis.

Specifically, temporary housing instability as a result of abuse shall not be considered against the party alleging abuse . "Temporary housing instability" is defined as up to six months from the date of the last incident of abuse as determined by the court (§ 5322).

Mandatory Safety Conditions (§ 5323(e))

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 still awards any form of custody to the party who committed the abuse (or whose household member committed the abuse), the court must include in the custody order:

• Safety conditions, restrictions, or safeguards as reasonably necessary to protect the child or the abused party.
• The reason for imposing those conditions, including an explanation of why they are in the child's best interest.
• If unsupervised physical custody is awarded despite a finding of past abuse, the reasons why unsupervised custody is in the child's best interest.

This is not discretionary. If the court finds abuse and awards custody to the abuser, safety conditions are mandatory. The available safeguards include (§ 5323(e)(2)):

• Nonprofessional or professional supervised physical custody
• Limitations on the time of day, number of hours per day, or number of hours per week of physical custody
• Batterer's intervention and harm prevention programming, which may include programming to rehabilitate the offending party or address the impacts of physical, sexual, or domestic abuse on the victim. The court may order an evaluation to determine whether additional programming is necessary.
• Limitations on legal custody (decision-making authority)
• Any other safety condition, restriction, or safeguard necessary to ensure the safety of the child or protect a household member

If supervised contact is ordered, there must be a review of the risk of harm and need for continued supervision upon petition of the party (§ 5323(e)(2)).

Rebuttable Presumption for Supervised Custody (§ 5323(e.1))

This is arguably the most significant change from Act 8. If a 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 the court shall only allow supervised physical custody between the child and the party who poses the risk.

This shifts the burden of proof. Instead of the protective parent having to prove unsupervised contact is unsafe, the parent posing the risk must prove it is safe.

When awarding supervised custody under this subsection, the court must favor professional supervised physical custody . The court may award nonprofessional supervised custody only if:

• Professional supervision is not available within a reasonable distance, or the party requiring supervision is unable to pay for it; and
• The court designates an adult supervisor who has appeared in person before the court, executed an affidavit of accountability, and the court makes a finding on the record that the individual is capable of promoting the child's safety.

The court may find that an indicated report for physical or sexual abuse under Chapter 63 (child protective services) is a basis for a finding of abuse under this subsection, but only after a de novo review of the circumstances leading to the indicated report (§ 5323(e.1)).

Criminal Convictions the Court Must Consider (§ 5329)

When any party seeks custody, the court must determine whether that party or a member of that party's household has been convicted of, or pleaded guilty or no contest to, a specific list of criminal offenses (or substantially equivalent offenses in another jurisdiction). Before awarding custody, the court must determine that the party does not pose a threat of harm to the child.

The offenses include:

• Violent crimes: Criminal homicide (Ch. 25), simple assault (§ 2701), aggravated assault (§ 2702), strangulation (§ 2718), recklessly endangering another person (§ 2705), terroristic threats (§ 2706), stalking (§ 2709.1), kidnapping (§ 2901), unlawful restraint (§ 2902), false imprisonment (§ 2903), interference with custody of children (§ 2904), luring a child into a motor vehicle or structure (§ 2910)
• Sexual offenses: Rape (§ 3121), statutory sexual assault (§ 3122.1), involuntary deviate sexual intercourse (§ 3123), sexual assault (§ 3124.1), aggravated indecent assault (§ 3125), indecent assault (§ 3126), indecent exposure (§ 3127), human trafficking (18 Pa.C.S. Ch. 30)
• Crimes against children: Corruption of minors (§ 6301), sexual abuse of children (§ 6312), unlawful contact with a minor (§ 6318), endangering the welfare of children (§ 4304), concealing the death of a child (§ 4303), dealing in infant children (§ 4305)
• Family/order violations: Incest (§ 4302), contempt for violation of a PFA order or agreement (23 Pa.C.S. § 6114)
• Substance offenses: DUI (75 Pa.C.S. Ch. 38 (driving after imbibing), which includes § 3802; or the former 75 Pa.C.S. § 3731), manufacture/delivery/possession of controlled substances (35 P.S. § 780-113(a)(1), as incorporated by § 5329(a))
• Other: Arson and related offenses (§ 3301), cruelty to animals (§ 5533), aggravated cruelty to animals (§ 5534), animal fighting (§ 5543), certain prostitution and obscenity offenses

Apart from the two bars in § 5329(b) and (b.1) described above, a conviction is not by itself determinative. The court must still examine the totality of the circumstances (§ 5329(a.1)). But the party must be cleared as not posing a threat before any custody order can be entered.

Pending Criminal Charges (§ 5330)

Separately from § 5329, if a party has been charged with (but not yet convicted of) any of the offenses listed above, the other party may move under § 5330 for a temporary custody order or a modification of an existing order. The court holds that hearing in an expeditious manner, and in evaluating the request it must consider whether the charged party poses a risk of physical, emotional, or psychological harm to the child. Relief under § 5330 has to be asked for. The court does not enter a temporary or modified order under that section on its own motion, and it has no obligation to investigate a party's criminal record independently (Pa.R.Civ.P. 1915.3-2, Comment). Pending charges still reach the court another way. Rule 1915.3-2 requires each party to disclose pending charges for these offenses on the Criminal Record/Abuse History Verification, to update that form when circumstances change, and the court evaluates whether a party or household member poses a threat to the child at the initial in-person custody proceeding. Section 5330(c) provides that a failure to act under the section does not prejudice any party in the custody proceeding.

Counsel Fees for Bad Faith Conduct (§ 5339)

Section 5339 authorizes the court to award reasonable interim or final counsel fees, costs, and expenses if it finds that a party's conduct was obdurate, vexatious, repetitive, or in bad faith. Act 8 amended this existing provision to add a good faith exception. This provision does not apply to a party who engaged the judicial process in good faith to protect the child from harm. In other words, filing legitimate safety concerns cannot be punished as bad faith litigation, but weaponizing the custody process can result in fee-shifting.

Relocation

Relocation under 23 Pa.C.S. § 5337 is not measured in miles. It means a change in the child's residence that significantly impairs a nonrelocating party's ability to exercise custodial rights (§ 5322(a)). The party proposing the relocation must notify every other individual who has custody rights to the child, by certified mail, return receipt requested, no later than the 60th day before the proposed move. A ten-day alternative applies only where the party neither knew nor could reasonably have known of the relocation in time to give the 60 days' notice, and it is not reasonably possible to delay the move in order to comply. In that case notice is due by the tenth day after the party learns of the relocation. The other parent can object, and the court will hold a hearing considering 10 specific relocation factors. Relocating without proper notice or court approval is taken very seriously by courts and can result in a change of custody.

Custody Procedure in Bucks County

• Filing: Custody complaint filed with the Prothonotary. Both parents must complete a Criminal Record / Abuse History Verification (including ChildLine clearance).
• 30-Day Factor Disclosure: Under § 5328(d) (added by Act 11 of 2025), the court must provide all parties with a copy of the statutory best-interest factors within 30 days of the complaint or petition being filed.
• Custody Master Conference : Bucks County requires an initial conference before a Custody Master as the mandatory first step before trial. If the case does not resolve there, the Custody Master may refer the parties to the Custody Conciliation and Evaluation Service (CCES) for further conciliation and evaluation. Many cases resolve at the conference or at CCES.
• Home Study: The court may order a home study or custody evaluation by a qualified professional.
• GAL or Counsel for the Child: In cases involving substantial allegations of abuse, the court may appoint a guardian ad litem or independent legal counsel for the child. The court must make reasonable efforts to ensure these appointees have evidence-based training in child abuse and domestic violence.
• Trial: If the case does not settle, the judge hears evidence and makes a custody determination. Children are generally not required to testify in open court: the judge may interview the child in chambers.
• Modification: Custody orders can be modified if there is a material and substantial change in circumstances. See Modifying Custody & Support Orders .

Legal and factual content on this page was last verified: Sep. 2026. If you are reading this significantly after that date, confirm key provisions with current statute text or contact our office.