Child Custody Law Pennsylvania – How Family Courts Decide Custody Matters

Child custody matters can arise at any time. Parents going through separation or divorce may reach a child custody agreement, or the court may decide custody. Child custody matters can arise where the parents were never married or have already gotten a divorce. Of course, there’s no requirement that parties be married to have a child. Our Bucks County, PA child custody lawyers handle all types of child custody matters, including cases where the parents were never married or unique situations such as where a child was conceived via fertility treatments by a same-sex couple.  

In addition, life circumstances, such as employment and financial situations, can change, and as a result, the need for child custody modifications arise quite often. For example, a father in Doylestown has primary physical custody of his child. The mother has partial custody because she moved to New Jersey soon after the divorce. She moves back to the Bucks County area and would now like more time with the child. The mother can seek to modify the custody order.  

Click here to download our Pennsylvania Child Custody Law pdf

Standing to Seek Custody – Who Has the Legal Right to Seek Custody? 

Before we discuss the standard family law courts use to decide custody, it’s important to briefly explain the issue of standing, or who is legally allowed to seek custody.  

Under Pennsylvania child custody law, a parent can seek custody assuming that party’s parental rights have not been terminated by the court. In addition, any individual, including grandparents, relatives and non-relatives, can seek custody, provided they have assumed parental duties and responsibilities (i.e., stand in loco parentis). Grandparents without in loco parentis status and certain third parties may also seek custody, subject to certain requirements. Click here to read about changes to Pennsylvania child custody law in 2018.  

What’s in the Best Interest of the Child? 

Under Pennsylvania law, Pennsylvania family law courts, including those in Bucks County, are required to decide custody based on a specific legal standard, i.e., the best interests of the child.  

It’s important to note that there’s no requirement that a family law judge decide a child custody matter. Rather, the parents or third parties seeking custody can come to an agreement and file that agreement with the court, so that it becomes a court order. This is the preferred method because it is easiest on children. However, if the parties cannot agree on a custody arrangement and one party files an action seeking custody or seeking to modify custody, the court gets involved. That’s when a family law judge will decide custody after applying the best interests of the child standard. 

By statute, 23 Pa. C.S. Section 5328, family law courts are required to consider 16 factors when awarding custody. Click here to see Section 5328 in its entirety, current as of November 1, 2018.

In a child custody matter, family law judges in Bucks County, PA will consider all of the 16 factors, which relate to issues of safety, health and mental/emotional development. Some of the factors include: 

  • which party is more likely to encourage contact between the child and the other party,
  • which party will maintain a loving and stable environment, 
  • past or present abuse of the child,  
  • sibling relationships, if any, 
  • the child’s preference, given the child’s maturity, so long as the preference is well-reasoned, 
  • where the parties live in relation to each other, and 
  • child care/school arrangements. 

The factors listed above are just some of the factors considered in a child custody case. Courts will also consider any other relevant factor. Gender of a parent is not a factor. In fact, Section 5328 prevents courts from considering gender when awarding custody.  

Mothers have an advantage in obtaining primary custody- A common misconception

There’s a common misconception that women receive priority or are preferred when it comes to a child custody matter. According to the law, this is completely untrue. Judges in Pennsylvania and Bucks County do not prefer women over men or men over women when deciding child custody. The key is what is in the best interests of the child, and the evidence presented by the parties.  While in some families the mother may be at an advantage because the father may be the primary income provider and spends less time with the children due to their work schedule, the opposite can also be true when the wife is the primary income provider.  The court does consider things like the history of who has been the “identifying” parent in that the children are closer to the non-working parent because they historically spent more time with the children.  However, that can be changed if the schedule and availability changes.  Fathers are just as likely to be awarded primary custody when the circumstances and factors listed above are in their favor. 

More Info on Child Custody Law in Pennsylvania

 

23 Pa. C.S. Section 5328.  Factors to consider when awarding custody. (Current as of November 1, 2018) 

(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: 

(1)  Which party is more likely to encourage and permit frequent and continuing contact between 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 physical safeguards and supervision of the child. 

(2.1)  The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement with protective services). 

(3)  The parental duties performed by each party on behalf of the child. 

(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 judgment. 

(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. 

(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.