How do Pennsylvania judges decide custody after Kayden's Law?

Last updated October 4, 2026.

Pennsylvania judges decide custody by the child's best interest, weighing every relevant factor in 23 Pa.C.S. 5328(a). Since Kayden's Law (Act 8 of 2024), the factors that affect the child's safety get "substantial weighted consideration": which parent is more likely to keep the child safe, present and past abuse, child abuse and protective services history, and violent or assaultive behavior. No single factor decides the case; the judge looks at the totality of the circumstances and must explain the decision (5328(a.2); 5323(d)).

A 2025 amendment (Act 11 of 2025) also requires the court to send every party a copy of the factors within 30 days of receiving a custody complaint or petition (5328(d)). For our custody work in Delaware County, see our child custody and child support page. Divorce, support and protection orders are covered on our family law page.

What did Kayden's Law change?

Act 8 of 2024 was enacted from Senate Bill 55 on April 15, 2024, and took effect 120 days later. It rewrote the custody factors to put safety first, added protections for a parent who acts to protect a child, expanded the court's duty to set safety conditions, and created a presumption of supervised custody where there is an ongoing risk of abuse. It also redefined "abuse" for custody cases to include stalking, while excluding justified self-defense against the other party's abuse (5322(a)).

What are all the factors the court considers?

Section 5328(a) lists them. Several older factors were deleted by amendment, so the numbering skips.

1. Safety (weighted). Which party is more likely to ensure the child's safety (factor 1).
2. Abuse (weighted). Present and past abuse by a party or household member, including PFA or sexual violence protection orders with a finding of abuse (factor 2).
3. Protective services history (weighted). Indicated or founded child abuse reports and services provided to a party or household, as determined under 5329.1 (factor 2.1).
4. Violence (weighted). Violent or assaultive behavior by a party (factor 2.2).
5. Cooperation and conflict. Which parent will encourage frequent contact with the other when that is consistent with safety, and attempts to turn the child against the other parent, except where reasonable safety measures are needed (factor 2.3).
6. Parenting. Willingness and ability to put the child's needs first, considering past and future parental duties and the child's daily, emotional, educational and special needs (factor 3).
7. Stability. The need for continuity in education, family life and community life, unless change is needed for safety (factor 4).
8. Siblings and family. The child's sibling and other family relationships (factor 6).
9. The child's preference. A well-reasoned preference, based on developmental stage, maturity and judgment (factor 7).
10. Logistics. How close the homes are, and each parent's work schedule and child care arrangements (factors 11 and 12). A proposed move has its own factors; see moving away with your child.
11. Health. Drug or alcohol abuse history, and the mental and physical condition of a party or household member (factors 14 and 15).
12. Anything else relevant (factor 16).

The statute also says no parent gets a preference based on gender (5328(b)), and in a dispute between two parents there is no presumption in favor of either (5327(a)).

How does the court use these factors, step by step?

1. Information gathering. Each party files a confidential Criminal Record/Abuse History Verification (Pa.R.C.P. 1915.3-2), and the court determines any child abuse or protective services history (5329.1).
2. Criminal convictions. For listed offenses, from homicide and assault to stalking, DUI under 75 Pa.C.S. Chapter 38 and PFA contempt, the court must consider the conviction and find that the parent poses no threat of harm before awarding any custody (5329(a)).
3. Weighing. The court weighs every factor, giving the safety factors substantial weight, and considers the totality of the circumstances (5328(a) and (a.2)).
4. Choosing the award. Shared, primary, partial, sole or supervised physical custody, and shared or sole legal custody (5323(a)).
5. Safety terms. Where abuse or a risk of harm is found, the order must list the conditions, the reasons for them and, if past abuse was committed, why unsupervised time is in the child's best interest (5323(e); Pa.R.C.P. 1915.10(b)(2)).
6. Reasons. The judge states the reasons on the record or in writing (5323(d)).

In Delaware County this analysis starts with the Custody Conciliator and, if needed, a trial before a judge; see the steps in a Delaware County custody case.

What evidence do judges look at for each factor?

The factors are proved with ordinary evidence: testimony from both parents and other witnesses, school and medical records, police reports, protection orders and protective services records. In Delaware County, Local Rule 1915.4-1(h) lets a parent offer reports and records from doctors, schools and police, and reports from mental health providers and custody evaluators, without calling the author as a witness, if they are given to the other side at least 20 days before the hearing and no written objection arrives at least 10 days before trial. If there is an objection, the parent must be ready to call the witness, and the hearing is not delayed.

A parenting plan can also help the court see each parent's proposal for schedules, schooling, health care and transportation, though the other parent cannot use your plan as evidence against you (5331(a)). Where safety is in question, the court can appoint a guardian ad litem, who must be a lawyer, to investigate, interview witnesses and file a written report with recommendations that the parties may comment on (5334(b)). The places where custody hearings and trials are held in Media are listed in our page on Delaware County family court.

What changes the answer?

• A protection order. A PFA with a finding of abuse falls within factor (2); see how a PFA affects custody.
• An ongoing risk of abuse. If the court finds one by a preponderance of the evidence, supervised custody is presumed. An indicated report for physical or sexual abuse can support that finding only after a fresh review of the circumstances (5323(e.1)).
• Who the parties are. Between a parent and a non-parent, the parent is presumed to get custody unless rebutted by clear and convincing evidence (5327(b)); grandparents face extra factors (5328(c)), explained in grandparent custody and visitation.
• A pending charge. A parent may ask for an expedited temporary order when the other parent is charged with a listed offense (5330).
• Representation for the child. The court may appoint a guardian ad litem or counsel for the child, and substantial allegations of abuse are a reasonable basis for appointing counsel (5334; 5335(b)).
• Counseling. The court may order counseling as part of a custody order, but in situations involving abuse it may not order joint counseling (5333(b)).

For example: one parent with a DUI conviction

Here is a hypothetical. A father in Springfield seeks shared physical custody. The mother points out that he was convicted of DUI two years ago. Because DUI under Chapter 38 is on the 5329 list, the judge must consider the conviction and determine that he does not pose a threat of harm to the child before awarding him custody.

At trial, the father shows completed treatment and a clean record since, and the mother agrees the children are close to him. The judge weighs factor (14), drug or alcohol history, along with the safety factors, the children's school stability and both work schedules, and could, for example, award shared custody with a condition such as no alcohol during custodial time, stating the reasons on the record. This example only illustrates how the statute works; it does not predict any result.

What mistakes do parents make about the custody factors?

• Relying on old articles. Factors (5), (8), (9), (10) and (13) were deleted; much of what is online predates 2024.
• Treating one factor as decisive. No single factor decides custody (5328(a.2)).
• Coaching the child. Attempts to turn the child against the other parent are themselves a factor (5328(a)(2.3)(ii)).
• Hiding a criminal or protective services history. The verification form and the 5329.1 inquiry bring it out, and a missing form can bring sanctions.
• Assuming protective steps will be held against you. Reasonable safety efforts are not treated as unwillingness to cooperate (5328(a)(2.3) and (a.1)).
• Not asking for specific safety terms. The order must be detailed enough to be enforced by police (5323(f)).

What should I do this week?

1. Read the copy of section 5328 the court sends you and note the facts that fit each factor.
2. Gather school, medical and activity records that show stability and parental duties.
3. Collect any protection orders, police reports or protective services letters.
4. Write down both work schedules and child care arrangements.
5. Avoid discussing the case with the children.
6. Book a consultation to plan which factors matter most in your case.

Frequently asked questions

Is Kayden's Law only about abuse cases?

No. It changed the factors in every custody case, but its strongest effects, such as the supervised custody presumption, apply when abuse or a risk of harm is found.

At what age can my child choose?

There is no set age. The court weighs a well-reasoned preference according to the child's developmental stage, maturity and judgment (5328(a)(7)).

Does a mother get preference?

No. No party receives a preference based on gender (5328(b)), and there is no presumption for either parent (5327(a)).

Will my DUI or other conviction be held against me?

The court must consider listed convictions and find no threat of harm before awarding custody (5329(a)). Our DUI defense page explains how a DUI case is handled in the first place.

What is supervised custody?

Time with the child monitored by an agency or an adult designated by the court; professional supervision is overseen by someone trained in domestic violence and child abuse (5322(a)). The terms are explained in the difference between legal and physical custody.

Do the factors affect child support?

Not directly, but the schedule that results changes support when a parent has 40 percent or more of overnights; see how child support is calculated.

Call Giribaldi Law at (610) 891-8303 or contact us online for a free consultation about your custody case. Evening and weekend appointments are available.