PENNSYLVANIA CUSTODY STATUTES
The following statutes were repealed by the new custody statute which took effect on January 24, 2011, but will govern proceedings initiated before January 24, 2011.
23 Pa.C.S. §5301 Declaration of Policy
The General Assembly declares that it is the public policy of this Commonwealth when in the best interest of the child, to assure a reasonable and continuing contact of the child with both parents after a separation or dissolution of the marriage and the sharing of the rights and responsibilities of child rearing by both parents and continuing contact of the child or children with grandparents when a parent is deceased, divorced or separated.
23 Pa.C.S. §5302 Definitions
The following words and phrases when used in this subchapter shall have the meanings given to them in this section unless the context clearly indicates otherwise:
“Child.” Any unemancipated person under 18 years of age.
“Legal custody.” The legal right to make major decisions affecting the best interest of a minor child, including, but not limited to, medical, religious and educational decisions.
“Partial custody.” The right to take possession of a child away from the custodial parent for a certain period of time.
“Shared custody.” An order awarding shared legal or shared physical custody, or both, of a child in such a way as to assure the child of frequent and continuing contact with and physical access to both parents.
“Visitation.” The right to visit a child. The term does not include the right to remove a child from the custodial parent's control.
23 Pa.C.S. §5303 Award of custody, partial custody or visitation
(a) General rule.
(1) In making an order for custody or partial custody, the court shall consider the preference of the child as well as any other factor which legitimately impacts the child's physical, intellectual and emotional well-being.
(2) In making an order for custody, partial custody or visitation to either parent, the court shall consider, among other factors, which parent is more likely to encourage, permit and allow frequent and continuing contact and physical access between the noncustodial parent and the child.
(3) The court shall consider each parent and adult household member's present and past violent or abusive conduct which may include, but is not limited to, abusive conduct as defined under the act of October 7, 1976 (P.L. 1090, No. 218), known as the Protection from Abuse Act.
(b) Consideration of criminal conviction. If a parent has been convicted of or has pleaded guilty or no contest to an offense as set forth below, the court shall consider such criminal conduct and shall determine that the parent does not pose a threat of harm to the child before making an order of custody, partial custody or visitation to hat parent:
(1) 18 Pa.C.S. Ch. 25 (relating to
(2) 18 Pa.C.S. §2901 (relating to kidnapping);
(3) 18 Pa.C.S. §2903 (relating to unlawful restraint);
(4) 18 Pa.C.S. §3121 (relating to rape);
(5) 18 Pa.C.S. §3122.1 (relating to statutory sexual assault);
(6) 18 Pa.C.S. §3123 (relating to involuntary deviate sexual intercourse);
(7) 18 Pa.C.S. §3124.1 (relating to sexual assault);
(8) 18 Pa.C.S. §3125 (relating to aggravated indecent assault);
(9) 18 Pa.C.S. §3126 (relating to indecent assault);
(10) 18 Pa.C.S. §3127 (relating to indecent exposure);
(11) 18 Pa.C.S. §4302 (relating to incest);
(12) 18 Pa.C.S. §4304 (relating to endangering welfare of children);
(13) 18 Pa.C.S. §5902(b) (relating to prostitution and related offenses); or
(14) 18 Pa.C.S. §6312 (relating to sexual abuse of children).
(b.1) Consideration of criminal charge.
(1) A parent who has obtained information under 42 Pa.C.S. §1904 (relating to availability of criminal charge information in child custody proceedings) of the charge filed against the other parent for an offense listed in paragraph (2) may move for a temporary custody order or to modify an existing custody, partial custody or visitation order. The temporary custody or modification hearing shall be scheduled expeditiously.
(2) In evaluating any request for temporary custody or modification of a custody, partial custody or visitation order, the court shall consider whether the parent who is or has been charged with an offense listed below poses a risk of harm to the child:
(i) 18 Pa.C.S. Ch. 25;
(ii) 18 Pa.C.S. §2702 (relating to aggravated assault);
(iii) 18 Pa.C.S. §2706 (relating to terroristic threats);
(iv) 18 Pa.C.S. §2709.1 (relating to stalking);
(v) 18 Pa.C.S. §2901;
(vi) 18 Pa.C.S. §2902;
(vii) 18 Pa.C.S. §2903 (relating to false imprisonment);
(viii) 18 Pa.C.S. §3121;
(ix) 18 Pa.C.S. §3122.1);
(x) 18 Pa.C.S. §3123);
(xi) 18 Pa.C.S. §3124.1;
(xii) 18 Pa.C.S. §3125;
(xiii) 18 Pa.C.S. §3126;
(xiv) 18 Pa.C.S. §3127;
(xv) 18 Pa.C.S. §3301 (relating to arson and related offenses);
(xvi) 18 Pa.C.S. §4302;
(xvii) 18 Pa.C.S. §4304;
(xviii) 18 Pa.C.S. §6312; and
(xix) 23 Pa. §6114 (relating to contempt for violation of order or agreement).
(3) Failure to apply for information under 42 Pa.C.S. §1904 or to act under this subsection shall not prejudice any parent in a custody or visitation proceeding.
(b.2) Parent convicted of murder. No court shall award custody, partial custody or visitation to a parent who has been convicted of murder under 18 Pa.C.S. §2502(a) (relating to murder of the first degree) of the other parent of the child who is the subject of the order, unless the child is of suitable age and consents to the order.
(c) Counseling. In making a determination to award custody, partial custody or visitation pursuant to subsection (b), the court shall appoint a qualified professional to provide counseling to an offending parent described in subsection (b) and shall take testimony from that professional regarding the provision of such counseling prior to issuing any order of custody, partial custody or visitation. Counseling, required in accordance with this subsection, shall include a program of treatment or individual therapy designed to rehabilitate a parent which addresses, but is not limited to, issues regarding physical and sexual abuse, domestic violence, the psychology of the offender and the effects of abuse on the victim. If the court awards custody, partial custody or visitation to an offending parent described in subsection (b), the court may require subsequent periodic counseling and reports on the rehabilitation of the offending parent and the well-being of the child following an order relating to custody, partial custody or visitation. If, upon review of a subsequent report or reports, the court determines that the offending parent poses a threat of harm to the child, the court may schedule a hearing and modify the order of custody or visitation to protect the well-being of the child.
(d) Sole custody. The court shall award sole custody when it is in the best interest of the child.
23 Pa.C.S. §5304 Award of Shared Custody
An order for shared custody may be awarded by the court when it is in the best interest of the child:
(1) upon application of one or both
(2) when the parties have agreed to an award of shared custody; or
(3) in the discretion of the court.
23 Pa.C.S. §5305 Counseling
(a) General rule. The court may require the parents to attend counseling sessions and may consider the recommendations of the counselors prior to awarding sole or shared custody. These counseling sessions may include, but shall not be limited to, discussions of the responsibilities and decisionmaking arrangements involved in both sole and shared custody and the suitability of each arrangement to the capabilities of each parent or both parents.
(b) Temporary custody. The court may temporarily ward custody to either parent or both parents pending resolution of any counseling.
(c) Report. The court may require the counselor to submit a report if the court desires and within such reasonable time as the court determines.
23 Pa.C.S. §5308 Removal of party or child from jurisdiction
If either party intends to or does remove himself or the child from this Commonwealth after a custody order has been made, the court, on its own motion or upon motion of either party, may review the existing custody order.
23 Pa.C.S. §5309 Access to records and information
(a) General rule. Except as provided in subsections (b) and ( c), each parent shall be provided access to all the medical, dental, religious or school records of the child, the residence address of the child and of the other parent and any other information that the court deems necessary.
(b) Court determination not to release information. The court, in its discretion, may determine not to release any part or parts of the information in this section but in doing so must state its reason for denial on the record.
( c) Nondisclosure of confidential information. The court shall not order that the address of a shelter for battered spouses and their dependent children or otherwise confidential information of a domestic violence counselor be disclosed to the defendant or his counsel or any party to the proceedings.
23 Pa.C.S. §5310 Modification of existing custody orders
Except as provided in 51 Pa.C.S. §4109 (relating to child custody proceedings during military deployment), any order for the custody of the child of a marriage entered by a court in this Commonwealth or any state may, subject to the jurisdictional requirements set forth in Chapter 54 (relating to uniform child custody jurisdiction and enforcement, be modified at any time to an order of shared custody in accordance with this subchapter.)
23 Pa.C.S. §5315 Court-appointed child custody health care or behavioral health practitioners
No party to a child custody matter in which the court has appointed a licensed health care or behavioral health practitioner to assist the court by conducting an examination or evaluation of the parties involved or making a recommendation concerning a child custody agreement or order may be permitted to file a complaint against the practitioner with the practitioner's State licensing board prior to the final agreement or order being issued and for 60 days thereafter. As used in this section, “licensed health care or behavioral health practitioner” means a person who is licensed, certified, accredited or otherwise regulated by the Commonwealth to provide health care or behavioral health services.