Michael Bertin Examines Pennsylvania’s Streamlined Child Custody Law: 16 Factors Reduced to 11

In his October 14, 2025, article for The Legal Intelligencer titled “Pennsylvania’s New Child Custody Factors,” Michael Bertin, partner and co-chair of the family law group and co-author of the book Pennsylvania Child Custody Law, Practice, and Procedure, discusses the significant changes that took effect on August 29, 2025, revising Pennsylvania’s 16 child custody factors down to 11. The updated factors provide a more streamlined and reorganized framework for courts to determine custody decisions. Bertin also explains that, prior to this change, the 16 factors were amended on August 13, 2024, through the passage of Kayden’s Law, which enhanced protections centered on child safety.

 The new factors under Section 5328, effective Aug. 29, 2025, are as follows (with a notation by this author if the factor has been relocated and to where it has been relocated):

1. Which party is more like to ensure the safety of the child.
2. The present and past abuse committed by a party or member of the party’s household, which may include past or current protection from abuse or sexual violence protection orders where there has been a finding of abuse.
   • The information set forth in Sectuin 5329.1(a) (relating to consideration of child abuse and involvement with protective services).
   • Violent or assaultive behavior committed by a party.
   • The level of cooperation and conflict between the parties, including: 
3. Which party is more likely to encourage and permit frequent and continuing contact between the child and the other party or parties if contact is consistent with the safety needs of the child; and
4. The attempts by a party to turn the child against the other party, except in cases of abuse where reasonable safety measures are necessary to protect the safety of the child. A party’s good faith and reasonable effort to protect the safety of a child or self shall not be considered evidence of unwillingness or inability to cooperate with the other party. A party’s reasonable concerns for the safety of the child and the party’s reasonable efforts to protect the child shall not be considered attempts to turn the child against the other party. A child’s deficient or negative relationship with a party shall not be presumed to be caused by the other party.
5. A willingness and ability of a party to prioritize the needs of the child by providing appropriate care, stability and continuity for the child, considering the parental duties performed by the party on behalf of the child in the past and whether the party is willing and able to perform the duties in the future, and attend to the daily physical, emotional, developmental, educational and special needs of the child.
6. The need for stability and continuity in the child’s education, family life and community life, except if changes are necessary to protect the safety of the child or party.
7. (Deleted by amendment).
8. The child’s sibling and other familial relationships.
9. The well-reasoned preference of the child, based on the child’s developmental stage, maturity, and judgment.
10. (Deleted by amendment). (Factor 8 is now located in factor 2.3(ii)).
11. (Deleted by amendment). (Factor 9 is now located in factor 3).
12. (Deleted by amendment). (Factor 10 is now located in factor 3).
13. The proximity of the residences of the parties.
14. Each party’s employment schedule and availability to care for the child or the ability to make appropriate child-care arrangements.
15. (Deleted by amendment). (Factor 13 is now located in 2.3 and 2.3(ii)).
16. The history of drug or alcohol abuse of a party or a member of the party’s household.
17. The mental and physical condition of a party or member of a party’s household.
18. Any other relevant factor.

Section 5328(a.2) remains in the Custody Act and states: “No single factor under subsection (a) shall by itself be determinative in the awarding of custody. The court shall examine the totality of the circumstances, giving weighted consideration to the factors that affect the safety of the child, when issuing a custody order that is in the best interest of the child.”

To learn more about the prior 16 custody factors and how they have evolved, read the full article.