Loss of Child Custody

August 20, 2018By Brian Manchester

A Criminal Conviction Can Cause Loss Of Child Custody

Unfortunately, it is true. A criminal conviction can be used against you in a custody dispute. There is even a statute that covers this. Below is that statute.

  • 5329.  Consideration of criminal conviction.

(a)  Offenses.–Where a party seeks any form of custody, the court shall consider whether that party or member of that party’s household has been convicted of or has pleaded guilty or no contest to any of the offenses in this section or an offense in another jurisdiction substantially equivalent to any of the offenses in this section. The court shall consider such conduct and determine that the party does not pose a threat of harm to the child before making any order of custody to that party when considering the following offenses:

18 Pa.C.S. Ch. 25 (relating to criminal homicide).

18 Pa.C.S. § 2702 (relating to aggravated assault).

18 Pa.C.S. § 2706 (relating to terroristic threats).

18 Pa.C.S. § 2709.1 (relating to stalking).

18 Pa.C.S. § 2901 (relating to kidnapping).

18 Pa.C.S. § 2902 (relating to unlawful restraint).

18 Pa.C.S. § 2903 (relating to false imprisonment).

18 Pa.C.S. § 2910 (relating to luring a child into a motor vehicle or structure).

18 Pa.C.S. § 3121 (relating to rape).

18 Pa.C.S. § 3122.1 (relating to statutory sexual assault).

18 Pa.C.S. § 3123 (relating to involuntary deviate sexual intercourse).

18 Pa.C.S. § 3124.1 (relating to sexual assault).

18 Pa.C.S. § 3125 (relating to aggravated indecent assault).

18 Pa.C.S. § 3126 (relating to indecent assault).

18 Pa.C.S. § 3127 (relating to indecent exposure).

18 Pa.C.S. § 3129 (relating to sexual intercourse with animal).

18 Pa.C.S. § 3130 (relating to conduct relating to sex offenders).

18 Pa.C.S. § 3301 (relating to arson and related offenses).

18 Pa.C.S. § 4302 (relating to incest).

18 Pa.C.S. § 4303 (relating to concealing death of child).

18 Pa.C.S. § 4304 (relating to endangering welfare of children).

18 Pa.C.S. § 4305 (relating to dealing in infant children).

18 Pa.C.S. § 5902(b) (relating to prostitution and related offenses).

18 Pa.C.S. § 5903(c) or (d) (relating to obscene and other sexual materials and performances).

18 Pa.C.S. § 6301 (relating to corruption of minors).

18 Pa.C.S. § 6312 (relating to sexual abuse of children).

18 Pa.C.S. § 6318 (relating to unlawful contact with minor).

18 Pa.C.S. § 6320 (relating to sexual exploitation of children).

Section 6114 (relating to contempt for violation of order or agreement).

The former 75 Pa.C.S. § 3731 (relating to driving under influence of alcohol or controlled substance).

75 Pa.C.S. Ch. 38 (relating to driving after imbibing alcohol or utilizing drugs).

Section 13(a)(1) of the act of April 14, 1972 (P.L.233, No.64), known as The Controlled Substance, Drug, Device and Cosmetic Act, to the extent that it prohibits the manufacture, sale or delivery, holding, offering for sale or possession of any controlled substance or other drug or device.

(b)  Parent convicted of murder.–No court shall award custody, partial custody or supervised physical custody to a parent who has been convicted of murder under 18 Pa.C.S. § 2502(a) (relating to murder) of the other parent of the child who is the subject of the order unless the child is of suitable age and consents to the order.

(b.1)  Parent convicted of certain sexual offenses.–

(1)  Notwithstanding any provision of this chapter to the contrary and subject to paragraph (2), if a parent who is a victim of any of the offenses set forth in this paragraph objects, no court shall award any type of custody set forth in section 5323 (relating to award of custody) to the other parent of a child conceived as a result of any of the following offenses for which the other parent has been convicted:

18 Pa.C.S. § 3121.

18 Pa.C.S. § 3122.1.

18 Pa.C.S. § 3124.1, where the offense involved sexual intercourse.

18 Pa.C.S. § 3124.2 (relating to institutional sexual assault), where the offense involved sexual intercourse.

18 Pa.C.S. § 4302.

(2)  A court may award any type of custody set forth in section 5323 to a parent who has been convicted of an offense under paragraph (1) if:

(i)  the parent who is a victim had an opportunity to address the court;

(ii)  the child is of suitable age and consents to the custody order; and

(iii)  the court determines the award is in the best interest of the child.

(3)  Paternity of the child shall be established by voluntary acknowledgment of paternity or blood, genetic or other paternity testing acceptable to the court. The cost of the testing shall be borne by the parent who was convicted of the offense.

(c)  Initial evaluation.–At the initial in-person contact with the court, the judge, conference officer or other appointed individual shall perform an initial evaluation to determine whether the party or household member who committed an offense under subsection (a) poses a threat to the child and whether counseling is necessary. The initial evaluation shall not be conducted by a mental health professional. After the initial evaluation, the court may order further evaluation or counseling by a mental health professional if the court determines it is necessary.

(d)  Counseling.–

(1)  Where the court determines under subsection (c) that counseling is necessary, it shall appoint a qualified professional specializing in treatment relating to the particular offense to provide counseling to the offending individual.

(2)  Counseling may include a program of treatment or individual therapy designed to rehabilitate the offending individual which addresses, but is not limited to, issues regarding physical and sexual abuse, the psychology of the offender and the effects of the offense on the victim.

(e)  Subsequent evaluation.–

(1)  At any time during or subsequent to the counseling under subsection (d), the court may require another evaluation to determine whether further counseling is necessary.

(2)  If the court awards custody to a party who committed an offense under subsection (a) or who shares a household with an individual who committed an offense under subsection (a), the court may require subsequent evaluations on the rehabilitation of the offending individual and the well-being of the child subsequent to the order. If, upon review of a subsequent evaluation, the court determines that the offending individual poses a threat of physical, emotional or psychological harm to the child, the court may schedule a hearing to modify the custody order.

(f)  Costs.–The court may order a party to pay all or part of the costs of the counseling and evaluations under this section.

(Apr. 12, 2012, P.L.241, No.32, eff. 60 days; Oct. 1, 2015, P.L.172, No.40, eff. 60 days; May 4, 2018, P.L.112, No.21, eff. 60 days)


2018 Amendment.  Act 21 amended subsec. (a) intro. par.

2015 Amendment.  Act 40 added subsec. (b.1). Section 3 of Act 40 provided that subsec. (b.1) shall apply to any action regarding custody of a child under Chapter 43 or 53 that is filed on or after the effective date of section 3.

2012 Amendment.  Act 32 amended subsec. (c).

Cross References.  Section 5329 is referred to in section 5330 of this title; section 1904 of Title 42 (Judiciary and Judicial Procedure).


It is extremely important to contact an experienced law firm right away if you or someone you know is charged with a crime in Pennsylvania.The possibility of a criminal conviction is bad enough but the loss of your children is a serious and life altering consequence all by itself.  If you, your son, daughter, or loved one in Pennsylvania has been arrested for a crime in state or federal court in Pennsylvania you need legal representation   Here at Manchester and Associates we represent people across the Commonwealth of Pennsylvania. For a free consultation we can be contacted at 1-800-243-4878.



Posted in: Criminal Defense Blog

Tags: Child Custody, Criminal Conviction, custody,

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About the Author

Brian Manchester is the owner of Manchester and Associates in Bellefonte, Pennsylvania. His law firm practices DUI and Criminal Defense exclusively throughout the entire state of Pennsylvania in both state and federal court. He has a team of two other lawyers with a combined 50 years of trial and courtroom experience are also trained in science and many other skills that are relevant to criminal defense to include the psychology of persuasion as well. One of his associates is a former District Attorney (chief prosecutor) in central Pennsylvania.   Mr. Manchester and his team routinely handle serious felony cases including murder, manslaughter, sex crimes, complex financial crimes, and serious assaults. A large part of Mr. Manchester’s practice is the defense of alcohol and drug-based DUI offenses as well as drug cases using science and analytical chemistry. Mr. Manchester has training as a Standardized Field Sobriety Testing Instructor. He is one of a handful of Certified Lawyer-Scientists as recognized by the American Chemical Society in the United States. He is a member of NCDD and is a Founding Member of DUIDLA. He is also a member of the American Chemical Society with over 170,000 members across the world. To date, he is the only practicing criminal defense lawyer to belong to the Society of Forensic Toxicologist where he is an Associate Member. Mr. Manchester speaks nationally on the topic of blood and drug testing for alcohol as well as the metrological (measurement uncertainty) in forensic testing.

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