Changes to Pennsylvania Custody Law

February 1, 2011

Some significant changes and additions to the custody statute in Pennsylvania went into effect recently. The majority of the changes or additions to the custody statute are an attempt to take the factors, standards and practices which have been carved out over the years through Court cases and appellate decisions and consolidate them within the statute. While these may not make a significant substantive change to the custody law, they still have the potential to affect many custody cases filed after the law goes into effect this week. 

One of the most significant additions to the statute is the inclusion of sixteen specific factors which, if applicable, the Court must consider. The overall goal is still to determine what is in the best interest of the child but these specific factors that are now set out in the statute provide some guidance and uniformity for judges, attorneys and parents to specifically consider in evaluating cases and concerns in custody matters. A few examples of these factors are:

  • Which party will encourage and permit continuing contact with the other party
  • Parental duties performed by the parties on behalf of the child
  • Sibling relationships
  • The well-reasoned preference of the child based on the child’s age and maturity
  • Proximity of residences of the parties
  • Attempt of one party to turn the child against the other party

Another addition to the statute which has the potential to affect many new custody actions is the expansion of the number and type of crimes which will trigger the Court to hold a hearing in order to determine whether an individual poses a threat to the child. This section of the statute has been expanded to include additional crimes such as Driving Under the Influence of Drugs or Alcohol. This section of the new law has also been expanded to now require the Court to hold a hearing not only if a parent has been charged or convicted of a specific crime, but also if someone in the parent’s household has been charged or convicted. This expansion has the potential to significantly increase the number of additional hearings the Court must hold so that it can make its determination that a particular parent or member of a parent’s household does not pose a threat to the child. 

One final addition to the law which has the potential to frequently arise in new custody actions involves cases where the parents are anticipating a breakup or separation but have not yet done so and still live in the same residence. The prior custody law did not now allow a party to petition the Court to make a custody determination while the parents are still residing in the same home because the law took the position that there was no reason to address custody because the parents were still living together. Under this new provision, the Court will be able to make custody determinations in anticipation of a parent moving out of the home. In these circumstances, the parents must be "living separate and apart" within the same residence in order for the Court to make a determination of custody. The decision of the Court will not go into effect, however, until one parent actually moves out of the residence or is evicted. 

These are a few of the highlights of the changes and additions to the new Pennsylvania custody statute. The goal of these changes was to provide uniformity in both substance and procedure across the state. Time will tell if the new law actually has that effect.