Marc R. Lynde, Esq.
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, adding mandatory safety protections, a rebuttable presumption for supervised custody in abuse cases, expanded criminal conviction review, and new procedural requirements. This page covers the law as it stands after Act 8 of 2024 (eff. Aug. 13, 2024) and Act 11 of 2025 (eff. Aug. 29, 2025).
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 who does not have 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).
2024–2025 Amendments
Section 5328 was significantly amended by Act 8 of 2024 and Act 11 of 2025. Former factors (5), (8), (9), (10), and (13) were deleted. New safety-focused factors (2.1), (2.2), and (2.3) were added. The statute now gives "substantial weighted consideration" to factors (1), (2), (2.1), and (2.2) affecting child safety. Within 30 days of a custody complaint or modification petition, the court must provide all parties with a copy of § 5328 (added by Act 11).
The court must consider all relevant factors, including the following (23 Pa.C.S. § 5328(a)):
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)).
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: it means that a parent who left an abusive household, lost housing stability, changed jobs, or disrupted the child's school situation as a result of 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).
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:
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)):
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)).
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 that unsupervised contact is unsafe, the parent posing the risk must prove that unsupervised contact 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:
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)).
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.
Important: A Conviction Is Not Automatic Disqualification
Having a conviction on this list does not automatically bar custody. Under § 5329(b), the court must examine the totality of circumstances, including the nature of the offense, how long ago it occurred, rehabilitation, and the child's relationship with the parent. A parent with a past conviction can still receive custody if the court determines the parent does not pose a current threat.
The offenses include:
A conviction is not by itself determinative. The court must still examine the totality of the circumstances (§ 5329(b)). But the party must be cleared as not posing a threat before any custody order can be entered.
Separately from § 5329, if a party has been charged with (but not yet convicted of) any of the offenses listed above, the court must consider those pending charges in the custody determination. The same "no threat of harm" finding is required before awarding custody.
Act 8 added § 5339, which 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. 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.
If a parent with custody wants to move a significant distance (any distance that would materially affect the other parent's custodial rights), they must provide 60 days' advance notice under 23 Pa.C.S. § 5337. 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.
Statutory content on this page was last verified against Pennsylvania statutes (23 Pa.C.S. §§ 5322, 5323, 5328, 5329, 5329.1, 5330, 5337, 5339) as amended by Act 8 of 2024 and Act 11 of 2025: February 2026 . If you are reading this significantly after that date, confirm key provisions with current statute text or contact our office.
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