Custody · 23 Pa.C.S. § 5328 · the law is the frame
A father, the law, & his children
A father’s public, good-faith account of a contested custody matter — walked through the law that governs it, plainly, so the reasoning can be read on its own terms. He is still contesting the allegations against him; nothing here asks a reader to take that on faith, only to see the position and the law side by side.
What this is (and what it isn’t)
This page walks through a contested custody record openly: the controlling Pennsylvania statute, in its own words, and this father’s position on each factor it names — stated as principle, not allegation, so it can be read without exposing anyone.
What’s not here: names, addresses, case numbers, incident dates, dollar figures, or the substance of the pending protective-services matter. Those stay court-side. Additional filings tied to this litigation — court orders, drug-testing results, and forensic psychological evaluations — speak directly to several factors below and are still being reviewed and scrubbed for public release; those factors are marked as awaiting source documents until that work is done.
We speak to both versions
23 Pa.C.S. § 5328 was rewritten by Act 8 of 2024 and Act 11 of 2025 (effective ~Aug 2025). Most older sources online still quote the pre-amendment “16 factors.” The Court applies the current version — but because filings, precedent, and public discussion still use the old numbering, we address both so the argument speaks the same language as the record.
The headline change: safety is now paramount. The court must give “substantial weighted consideration” to the factors that affect the safety of the child. And the factor this father has fought under since day one — “which party encourages frequent and continuing contact” — was the old Factor (1). It is now (2.3)(i), and the legislature attached a tail: contact is encouraged “if consistent with the safety needs of the child.” The contest over access now runs through safety, not around it.
| Old # | Old factor (paraphrased) | New # | New factor — what changed |
|---|---|---|---|
| 1 | Encourage frequent & continuing contact | 2.3(i) | Moved under “cooperation & conflict”; + safety qualifier |
| 2 | Present/past abuse | 2 | Expanded: PFA/SVPO count where there has been a finding of abuse |
| — | (safety of the child — not its own factor) | 1 | NEW — “Which party more likely ensures the safety of the child” |
| — | (child abuse / protective services) | 2.1 | NEW — protective-services involvement (cf. § 5329.1) |
| — | (violent/assaultive behavior) | 2.2 | NEW |
| 8 | Attempts to turn child against other parent (alienation) | 2.3(ii) | + carve-outs: good-faith safety efforts ≠ uncooperative; a deficient relationship is not presumed caused by the other parent |
| 13 | Level of conflict & willingness to cooperate | 2.3 | Now the parent heading for (i)+(ii) above |
| 3 / 9 / 10 | Parental duties · loving/stable/nurturing · daily needs | 3 | Merged into one capacity factor |
| 4 | Stability in education, family, community | 4 | Kept; + safety exception (“except where change is necessary to protect safety”) |
| 6 | Sibling relationships | 6 | Kept (now “sibling and other familial relationships”) |
| 7 | Child’s preference | 7 | Kept (“well-reasoned preference… developmental stage, maturity, judgment”) |
| 11 | Proximity of residences | 11 | Kept |
| 12 | Availability / child-care | 12 | Kept (now “employment schedule and availability… child-care arrangements”) |
| 14 | Drug/alcohol history | 14 | Kept |
| 15 | Mental & physical condition | 15 | Kept |
| 16 | Any other relevant factor | 16 | Kept |
| 5 / 8 / 9 / 10 / 13 | Extended family · alienation · nurturing · daily needs · conflict | — | DELETED by amendment (folded into the above or removed) |
🛡️ The safety cluster
The court must give these factors substantial weighted consideration. They are stated in verified posture, not paraphrase — placeholders hold the detail until source documents are reviewed. Tap a factor to open it.
1Which party is more likely to ensure the safety of the child🛡️ the new paramount factor▼
Father’s position: □ placeholder — awaiting source docs; stated in verified posture.
2Present & past abuse — including PFA/SVPO where there has been a finding of abuse🔴 the hedged factor▼
Father’s position: □ placeholder — awaiting source docs.
2.1Child abuse & involvement with protective services 💋 cf. § 5329.1▼
Father’s position: □ placeholder — pending matter; characterized only against verified source documents.
2.2Violent or assaultive behavior committed by a party ⚔️▼
Father’s position: □ placeholder — awaiting source docs.
🤝 The level of cooperation and conflict between the parties
⭐Factor (2.3)(i) — frequent & continuing contactif consistent with the child’s safety · the #1 priority▼
This is the factor most older sources (and the old law) call “(1).” It is where the position stated above gets tested against the record.
Father’s position (scrubbed, public-safe): a verifiable record of denied and disrupted contact exists and is held with the court-facing evidence (not published here) — offered as proof, not presumption, that contact was not this father’s gate to close.
The statutory qualifier (“if contact is consistent with the safety needs of the child”) is acknowledged and welcomed, not resisted: the safety cluster above is the reason equal access can be asked for in good conscience, not in spite of it.
2.3(ii)Alienation & the “deficient relationship” presumption🚫 no presumption either way▼
The statute does not presume a child’s deficient relationship with a parent was caused by the other parent.
It does not forbid proof, either. The father’s position is established by documented, attributable evidence (court-side), not by presumption.
Carve-out: a party’s good-faith, reasonable effort to protect the safety of a child or self is not evidence of unwillingness to cooperate.
3Willingness & ability to prioritize the child’s needs📝 merges old 3 · 9 · 10▼
Care, stability, continuity; parental duties past and future; daily physical, emotional, developmental, educational & special needs.
Evidence backbone → 🟦️ Exhibit 4 — the attributable, verifiable applied-learning & work record demonstrates recent, sustained capacity: a 40+ hour/week retraining and applied-development schedule.
Father’s position: □ placeholder detail — awaiting source docs.
4Need for stability & continuity in education, family & community life🏠 + safety exception▼
…except where change is necessary to protect safety.
Evidence backbone → 🟦️ Exhibit 4 evidences a stable, continuity-oriented rebuilding trajectory. (Old factor 4; now with a safety exception.)
Father’s position: □ placeholder — awaiting source docs.
6Sibling & other familial relationships👨👩👧👦 old 6, kept▼
Father’s position: □ placeholder — awaiting source docs.
7Well-reasoned preference of the child💭 developmental stage, maturity & judgment▼
Father’s position: □ children too young for a dispositive preference; noted as context, not waiver.
11Proximity of the parties’ residences📍 old 11, kept▼
Father’s position: □ placeholder — awaiting source docs.
12Employment schedule & availability to care for the child📅 old 12, kept▼
…or ability to make appropriate child-care arrangements.
Evidence backbone → 🟦️ Exhibit 4 evidences flexible, self-directed availability built around applied remote work & study — a schedule that accommodates, rather than competes with, parenting time.
Father’s position: □ placeholder — awaiting source docs.
14History of drug or alcohol abuse🌿️ a party or household member · old 14, kept▼
Father’s position: □ medical-cannabis patient status and recovery context to be stated in verified terms, not paraphrase.
15Mental & physical condition of a party or household member🩺️ old 15, kept▼
Father’s position: □ placeholder — awaiting source docs.
16Any other relevant factor✦ old 16, kept▼
Father’s position: □ the father’s sustained, attributable diligence through a period of genuine hardship — documented in the public Exhibit 4 record — is offered as a (16) factor: a verifiable demonstration that the “impossible” can be pursued in good faith and turned, by labor and grace, into the possible.
(a.1) 🛡️ The protective-response exception: a factor shall not be weighed against a party where the circumstances were a response to protect the safety of the child or party; temporary housing instability resulting from abuse is not counted against the alleging party.
(a.2) ⚖️ No single factor is determinative — substantial weight goes to the safety factors when issuing an order in the child’s best interest.
(b) 🚴️ Gender-neutral: no party receives preference based on gender.
❌ Deleted by amendment (shown for completeness)
Factors (5), (8), (9), (10), and (13) were deleted from § 5328(a) by the 2024/2025 amendments — folded into the surviving factors or removed. They are named here only so readers comparing this document against older sources understand why the numbering differs.
Two takeaways for the record
1. The north star didn’t move — the law did. Equal access to both loving parents remains the goal; the path now runs through the safety cluster, with the contact factor re-housed and conditioned.
2. The father’s record-keeping is the right instrument under the new law. No presumption does the work either way — so the denied-contact ledger, the supervised-call log, and the run-out-of-resources timeline (all court-side) are proof, exactly what the rewritten statute calls for.