What happens to a custody case if the other party has been charged with a crime?

A trial court must consider each party’s (and their household’s) criminal history.  Criminal convictions are often the focus of this review. However, 23 PA C.S. Section 5330 provides that if a party has pending criminal charges, the court must consider whether that party poses a risk of physical, emotional, or psychological harm to the child.  There are certain crimes, often referred to as “enumerated offenses” because they are specifically enumerated in the statute, that the court will review to determine whether a party poses such a risk.  These offenses, listed fully in Section 5239, include homicide, sexual assault, endangering the welfare of a child, driving under the influence, and more. See the full list of enumerated offenses here.

If a party has been charged with an enumerated offense under Section 5329, the other party may seek a temporary custody order or a modification of an existing order.  This hearing is to be held “expeditiously.” The court must consider whether the charged party poses a risk of physical, emotional, or psychological harm to the child as stated above. The court must consider any proof produced by the parties about the existence of criminal charges or abuse.