When a Pennsylvania court decides custody, it must weigh the factors in 23 Pa.C.S. § 5328, giving substantial weight to those that affect the child's safety, as amended by Kayden's Law in 2024. Parents who settle custody by agreement are not bound to follow the factors point by point, but the factors still matter: they describe what a court would look at, they shape what a judge will approve in a consent order, and they make a useful checklist for a plan that truly serves the children.
Breonna Frisk has written about how frustrating it can be when something important to a parent does not fit any factor in a litigated case, in her post First Round Draft Pick: Collaboration. In a collaborative or mediated case, parents can address those concerns directly while still respecting what the law protects. For the broader approach, see our collaborative family law page.
How parents use the factors, step by step
- Read the list together, early. Within 30 days of receiving a custody complaint or petition, the court must give every party a copy of § 5328 (§ 5328(d)). Parents outside court can read it at the start.
- Start with safety. Any history of abuse, violence, or drug or alcohol abuse is addressed first, honestly and privately with your lawyer.
- Describe each child's needs. Stability, school, siblings, activities, health.
- Test schedule options against the factors. Does the plan support contact with both parents? Does it keep school and community steady?
- Write the plan. See building a parenting plan for the topics it should cover.
- Submit it as a consent order. See turning a custody agreement into an order.
The factors in plain words
Under § 5328(a), the court determines the child's best interest by considering all relevant factors, "giving substantial weighted consideration" to those affecting the child's safety. The current list reads, in summary:
| Factor | Plain-words summary |
|---|---|
| (1) Safety (weighted) | Which parent is more likely to ensure the child's safety |
| (2) Abuse (weighted) | Present and past abuse by a party or household member, which may include protection from abuse orders where abuse was found |
| (2.1) Protective services history (weighted) | Information about child abuse and involvement with protective services under § 5329.1(a) |
| (2.2) Violence (weighted) | Violent or assaultive behavior by a party |
| (2.3) Cooperation and conflict | Which parent encourages contact with the other (when consistent with safety); attempts to turn the child against the other parent |
| (3) Care and priorities | Willingness and ability to prioritize the child's needs, past and future parenting duties |
| (4) Stability | Continuity in education, family life and community life, unless change is needed for safety |
| (6) Family relationships | Siblings and other family relationships |
| (7) Child's preference | The child's well-reasoned preference, based on developmental stage, maturity and judgment |
| (11) Distance | How close the parents' homes are |
| (12) Availability | Each parent's work schedule and ability to care for the child or arrange child care |
| (14) Substance abuse | History of drug or alcohol abuse by a party or household member |
| (15) Health | Mental and physical condition of a party or household member |
| (16) Other | Any other relevant factor |
Factors (5), (8), (9), (10) and (13) were deleted by amendment, which is why the numbering skips.
What Kayden's Law changed
Act 8 of 2024, known as Kayden's Law, rewrote the factor list to put safety first. It also added two important rules. First, a factor may not be weighed against a parent if the circumstances were a response to abuse or necessary to protect the child or the abused parent, and temporary housing instability caused by abuse may not be counted against the parent alleging abuse (§ 5328(a.1)). Second, no single factor decides the case by itself; the court looks at the totality of the circumstances, giving weighted consideration to safety (§ 5328(a.2)). The factor on cooperation also now says that a parent's reasonable efforts to protect a child's safety are not evidence of unwillingness to cooperate, and that a child's negative relationship with a parent is not presumed to be caused by the other parent. Act 11 of 2025 added the requirement that the court provide a copy of the section to the parties (§ 5328(d)).
Courts must also consider gender neutrally: no party receives a preference based on gender (§ 5328(b)). Where a court finds a history of abuse or a present risk of harm and still awards custody to the party who committed the abuse, the order must include safety conditions (§ 5323(e)).
Local practice after Kayden's Law
The Allegheny County Family Division explains that, to comply with Kayden's Law, it requires a Custody Consent Verification Form from all parties before it will approve and enter a custody consent order, a Criminal Record and Abuse History Verification Form, and an affidavit from any non-professional supervisor; parties must update the forms if circumstances change. See the Allegheny County Family Division guide. In Lawrence County, the court's custody forms include a Criminal Record/Abuse History Verification Form and a copy of § 5328; see the Lawrence County Courthouse for family cases.
What the factors mean for an agreement
Because the factors describe what a court would weigh, an agreement that ignores them can be hard to defend if it is ever challenged. In practice, collaborative and mediating parents use the factors in three ways: as a safety screen at the start; as a checklist that the plan covers stability, school, siblings and each parent's real availability; and as common language when they disagree, so the conversation stays on the child rather than on the parents' grievances. Safety is never something to trade away, and cooperative processes are not appropriate where abuse makes free negotiation impossible; see when mediation or collaborative divorce is not safe and whether collaborative divorce is right for you.
If a court-connected mediation is involved, such as Allegheny's Generations session, the mediator must ensure the parties consider the child's best interests fully (Pa.R.C.P. 1940.5(b)); see court-ordered custody mediation.
Grandparents and other relatives
The factors focus on parents, but § 5328 also speaks to grandparents and great-grandparents. When a court considers partial or supervised physical custody for a grandparent with standing, it looks at the amount of contact between the child and the grandparent before the case, whether the award would interfere with the parent-child relationship, and whether the award is in the child's best interest (§ 5328(c)). Parents writing their own plan often address extended family informally, for example by committing to keep holiday visits with grandparents on both sides. Writing that intention into the plan can reassure relatives and reduce the chance they feel they must file their own case.
Talking with children about the plan
The factors refer to a child's well-reasoned preference, but that does not mean children should be asked to choose between parents. Many families find a middle path: parents explain the plan together in age-appropriate words, invite older children to share what matters to them (a sport, a job, time with friends), and make clear that the adults are making the decision. A neutral child specialist in a collaborative case can gather a child's views in a way that does not put the child in the middle; see who is on a collaborative divorce team. However the conversation happens, the goal is the same as the law's: a plan that keeps the child safe, stable and connected to both parents where that is safe.
What changes the answer
- Safety concerns. They receive substantial weight and can change everything else.
- The child's age and maturity. A well-reasoned preference matters more as children mature.
- Distance between homes. It shapes which schedules are workable.
- Relocation. A move is judged by separate relocation factors; see moving after a custody agreement.
- Household members. Several factors look at household members, not just parents.
A worked example
For example, imagine hypothetical parents Kara and Ian. Their 14-year-old wants more time at Ian's home near her high school; their 8-year-old is closely attached to Kara. Using the factors as a checklist, they keep the siblings together on weekends, give the older child more school-night time near her school, and protect the younger child's routine. Neither parent has any safety concerns, and both complete the required verification forms. Their lawyers confirm the plan addresses stability, sibling relationships and the older child's well-reasoned preference. This is an illustration only.
Common mistakes
- Treating the factors as a scorecard. No single factor decides custody.
- Hiding safety concerns to reach agreement. Safety comes first.
- Using the old factor list. The list changed in 2024; use the current statute.
- Involving children in adult disputes. Attempts to turn a child against a parent are themselves a factor.
- Forgetting the forms. Courts may not enter a consent order until verification forms are filed.
What to do this week
- Read § 5328 in full from the official source.
- Write down any safety concerns and discuss them privately with your lawyer.
- List what each child needs for stability: school, siblings, activities.
- Note each parent's real work schedule and child-care options.
- Start the plan using our parenting plan guide.
Frequently asked questions
Do the factors apply if we agree?
A judge reviewing a consent order wants a plan in the child's best interest, and local courts require safety verification forms. The factors are the framework for that judgment.
What is Kayden's Law?
Act 8 of 2024, which rewrote Pennsylvania's custody factors to give priority to the child's safety and added protections for parents responding to abuse.
Can my child decide?
A child's well-reasoned preference is one factor, weighed by maturity and judgment; it is not decisive alone.
Do mothers get preference?
No. Section 5328(b) says no party receives a preference based on gender.
Does one factor outweigh all others?
No single factor is determinative, but safety factors receive substantial weighted consideration.
Where can I read the current factors?
In 23 Pa.C.S. § 5328 on the General Assembly's website; courts must also provide a copy to parties in custody cases.
Sources
- 23 Pa.C.S. § 5328, factors to consider when awarding custody
- 23 Pa.C.S. § 5323, award of custody and safety conditions
- Pa.R.C.P. 1940.5, duties of the mediator
- Allegheny County Family Division, Kayden's Law
- Allegheny County Family Division, custody factors
- Lawrence County Court of Common Pleas, custody forms
