Legal Topics

Erie PA Child Custody FAQ's



Q:        How does the judge decide who gets custody?

A:        Generally, determines the outcome in a child custody case based on the “child’s best interests.”  In determining the child’s best interests and ordering custody, the judge must consider sixteen (16) different factors which are listed in the Pennsylvania statute.  Some of those factors include, among others:

  1. Which party is more likely to encourage and permit frequent and continuing contract between the child and another party;
  2. A history or presence of abuse committed by one party or someone living with that party;
  3. The need for stability and continuity in the child’s education, family life, and community life; and
  4. The preference of the child, depending on the child’s ability to express and justify his or her preference.

While Pennsylvania child custody law has set forth sixteen specific factors that must be considered in every case, the judge is allowed to go beyond those factors and consider anything else that may be relevant to determining the child’s best interests and ordering custody.


Q:        What is the difference between physical and legal custody?

A:        Physical custody generally refers to where the child lives and with whom the child spends his or her time.  The court can award “primary,” “partial,” or “shared” physical custody of the child.  A parent awarded primary physical custody has the right to assume physical custody of the child for the majority of time.  Partial physical custody refers to a parent’s right to assume physical custody of the child for less than a majority of the time.  On the other hand, shared physical custody refers to the right of both parents to enjoy significant periods of physical custodial time with the child.  It is also worth remembering that in addition to identifying the parents’ custody rights as primary, partial, or shared, the custody order will typically include a detailed custody schedule that explicitly defines each parents’ custodial time.

            Legal custody refers to a parent’s authority to make major decisions on behalf of the child, including but not limited to medical, religious, and educational decisions.  As with physical custody, the court may award primary, partial, or shared legal custody.


Q:        Is there a presumption that the Mother should be awarded custody?

A:        No.  As between the child’s parents, the Mother is not presumed to be more fit to care for the child than the Father.  The judge is not allowed to consider the genders of the parents in ordering custody.


Q:        What happens if a party refuses to follow the custody order?

A:        Pennsylvania child custody laws require the court’s custody order to be specific enough to enable a party to enforce it through law enforcement authorities.  However, the reality is that the police do not often get involved in child custody disputes.   

            A party who does not comply with a custody order may be held in contempt of court.  There are a number of sanctions that may be ordered as a result of being held in contempt, including:

  1. A $500 fine;
  2. Six months’ probation;
  3. A suspension of driving privileges;
  4. An order requiring the party in contempt to the pay the other party’s attorney’s fees; and
  5. Six months’ imprisonment.

The court may not modify an existing custody order as a sanction for contempt, although that proposal is frequently considered by the Pennsylvania legislature.


Q:        We have a custody order in place, but I am no longer satisfied with it.  Can I obtain a new custody order 

A:        A party seeking to modify an existing custody order must file a petition with the court.  Generally, custody orders are considered “temporary,” and the court may modify an existing order if doing so would be in best interests of the child.  However, one party’s unhappiness with the existing custody order is not enough to modify the order.  The party seeking modification must submit evidence that the child’s best interests would be served by modifying the order. Alternatively, instead of taking the matter to court, the parties may agree to a revised Order.  It is often a good idea to get an updated agreement signed by a judge as a Consent Order.



Please remember that every case is different.  This article is not intended to provide you with legal advice.  If you have a child custody issue, you should contact a lawyer.  You can contact our office through this website.