PRINTER'S NO. 1992
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
1684
Session of
2023
INTRODUCED BY FLICK, PROBST, MADDEN, CABELL, KAUFER, WATRO,
ADAMS, VENKAT, CEPEDA-FREYTIZ, IRVIN, GIRAL, FLEMING,
BOROWSKI, SCHLEGEL, RYNCAVAGE, GILLEN, GUZMAN, KINSEY, GREEN,
E. NELSON, COOPER, WARNER, KHAN AND GREGORY,
SEPTEMBER 19, 2023
REFERRED TO COMMITTEE ON CHILDREN AND YOUTH, SEPTEMBER 19, 2023
AN ACT
Amending Title 23 (Domestic Relations) of the Pennsylvania
Consolidated Statutes, in child custody, further providing
for definitions, for award of custody, for standing for
partial physical custody and supervised physical custody, for
presumption in cases concerning primary physical custody, for
factors to consider when awarding custody, for consideration
of criminal conviction and for parenting plan; and making
editorial changes.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 5322 of Title 23 of the Pennsylvania
Consolidated Statutes is amended to read:
§ 5322. Definitions.
(a) This chapter.--The following words and phrases when used
in this chapter shall have the meanings given to them in this
subsection unless the context clearly indicates otherwise:
"Abuse." As defined in section 6102 (relating to
definitions).
"Adult." An individual 18 years of age or older.
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"Agency." Any organization, society, institution, court
facility or other entity which provides for the care of a child.
The term does not include a county children and youth social
service agency.
"Child." An unemancipated individual under 18 years of age.
"Equal parenting time." As close as practicable to 50% of
time spent with each parent, but in no case exceeding 60% of
time spent with either parent.
"Legal custody." The right to make major decisions on behalf
of the child, including, but not limited to, medical, religious
and educational decisions.
"Parental duties." Includes meeting the physical, emotional
and social needs of the child.
["Partial physical custody." The right to assume physical
custody of the child for less than a majority of the time.]
"Physical custody." The actual physical possession and
control of a child.
["Primary physical custody." The right to assume physical
custody of the child for the majority of time.]
"Relocation." A change in a residence of the child which
significantly impairs the ability of a nonrelocating party to
exercise custodial rights.
"Shared legal custody." The right of more than one
individual to legal custody of the child.
"Shared physical custody." The right of more than one
individual to assume physical custody of the child[, each having
significant periods of physical custodial time with the child].
["Sole legal custody." The right of one individual to
exclusive legal custody of the child.
"Sole physical custody." The right of one individual to
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exclusive physical custody of the child.]
"Supervised physical custody." Custodial time during which
an agency or an adult designated by the court or agreed upon by
the parties monitors the interaction between the child and the
individual with those rights.
(b) Other law.--In a statutory provision other than in this
chapter, when the term "visitation" is used in reference to
child custody, the term may be construed to mean[:
(1) partial physical custody;
(2) shared physical custody; or
(3) supervised physical custody.] shared or limited
physical custody, including supervised physical custody.
Section 2. Section 5323(a)(2) and (3), (b) and (d) of Title
23 are amended and the section is amended by adding subsections
to read:
§ 5323. Award of custody.
(a) Types of award.--After considering the factors set forth
in section 5328 (relating to factors to consider when awarding
custody), the court may award any of the following types of
custody if it is in the best interest of the child:
* * *
[(2) Primary physical custody.
(3) Partial physical custody.]
* * *
[(b) Interim award.--The court may issue an interim award of
custody to a party who has standing under section 5324 (relating
to standing for any form of physical custody or legal custody)
or 5325 (relating to standing for partial physical custody and
supervised physical custody) in the manner prescribed by the
Pennsylvania Rules of Civil Procedure governing special relief
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in custody matters.]
(b.1) Temporary custody orders.--
(1) A party to a custody proceeding may move for a
temporary custody order. The following apply:
(i) The motion must be supported by an affidavit as
provided in subsection (b.2).
(ii) The court may award temporary custody under the
standards of subsection (b.2) after a hearing or, if
there is no objection, solely on the basis of the
affidavits.
(iii) If the parties present a temporary custody
agreement and mutually agreed upon plan for parenting
time and the court confirms that the agreement is in the
best interest of the child, the agreement shall become
the temporary custody order of the court.
(2) Subject to subsection (b.2), in making an order for
temporary custody, there shall be a presumption, rebuttable
by clear and convincing evidence, that shared physical
custody, shared legal custody and equal parenting time are in
the best interest of the child.
(3) If a deviation from equal parenting time is
warranted, the court shall construct a parenting time
schedule which maximizes the time that each party has with
the child and is consistent with ensuring the best interest
of the child.
(4) Each temporary custody order shall include specific
findings of fact and conclusions of law, except when the
court confirms the agreement of the parties in accordance
with paragraph (1)(iii).
(5) A temporary custody order shall address the
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circumstances in which a custody exchange will occur.
(6) Modification of a temporary custody order may be
sought if there is a material and substantial change in the
circumstances of the parties or child.
(7) If a proceeding for dissolution of marriage or legal
separation is dismissed, a temporary custody order is vacated
unless a party moves that the proceeding continue as a
custody proceeding and the court finds, after a hearing, that
the circumstances of the parties and the best interest of the
child require that a custody order be issued.
(8) If a custody proceeding that commenced in the
absence of a petition for dissolution of marriage or legal
separation is dismissed, a temporary custody order is
vacated.
(b.2) Affidavits, notice and hearing.--A party seeking a
temporary custody order under subsection (b.1) shall submit an
affidavit specifying facts supporting the requested order. The
following apply:
(1) The party shall give notice, together with a copy of
the affidavit, to other parties to the proceeding, who may
file opposing affidavits.
(2) The court shall deny the motion for the temporary
custody order unless the court finds that adequate cause for
hearing the motion is established by the affidavits, in which
case the court shall set a date for the hearing on an order
to show cause why the requested order should not be granted.
* * *
(d) Reasons for award.--The court shall delineate the
reasons for its decision [on the record in open court or] in an
award of custody, including an interim award, in a written
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opinion or order. The opinion or order shall include, with
specificity, the reasons for any deviation from equal parenting
time.
* * *
Section 3. Sections 5325 heading and introductory paragraph,
5326, 5327 heading and (a), 5328(a) and (c), 5329(b), 5329.1(b)
(1) and (2) and 5331(c) of Title 23 are amended to read:
§ 5325. [Standing] Grandparent standing for [partial] shared
physical custody and supervised physical custody.
In addition to situations set forth in section 5324 (relating
to standing for any form of physical custody or legal custody),
grandparents and great-grandparents may file an action under
this chapter for [partial] shared physical custody or supervised
physical custody in the following situations:
* * *
§ 5326. Effect of adoption.
Any rights to seek physical custody or legal custody rights
and any custody rights that have been granted under section 5324
(relating to standing for any form of physical custody or legal
custody) or 5325 (relating to grandparent standing for [partial]
shared physical custody and supervised physical custody) to a
grandparent or great-grandparent prior to the adoption of the
child by an individual other than a stepparent, grandparent or
great-grandparent shall be automatically terminated upon such
adoption.
§ 5327. [Presumption in cases concerning primary physical
custody.] Presumptions.
(a) Between parents.--In any action regarding the custody of
the child between the parents of the child, there shall be [no
presumption that custody should be awarded to a particular
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parent.] a presumption, rebuttable by clear and convincing
evidence, that shared physical and legal custody and equal
parenting time is in the best interest of the child. The
presumption that shared physical and legal custody and equal
parenting time is in the best interest of the child under this
subsection may be rebutted if:
(1) the court finds by clear and convincing evidence
that joint custody is not in the best interest of the child;
(2) the parents have reached an agreement on all issues
related to the custody of the child; or
(3) one of the parents does not request shared physical
and legal custody or equal parenting time.
* * *
§ 5328. Factors to consider when awarding custody.
(a) Factors.--In ordering any form of custody, the court
shall determine the best interest of the child by considering
all relevant factors, [giving weighted consideration to those
factors which affect the safety of the child, including the
following:
(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and another
party.
(2) The present and past abuse committed by a party or
member of the party's household, whether there is a continued
risk of harm to the child or an abused party and which party
can better provide adequate physical safeguards and
supervision of the child.
(2.1) The information set forth in section 5329.1(a)
(relating to consideration of child abuse and involvement
with protective services).
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(3) The parental duties performed by each party on
behalf of the child.
(4) The need for stability and continuity in the child's
education, family life and community life.
(5) The availability of extended family.
(6) The child's sibling relationships.
(7) The well-reasoned preference of the child, based on
the child's maturity and judgment.
(8) The attempts of a parent to turn the child against
the other parent, except in cases of domestic violence where
reasonable safety measures are necessary to protect the child
from harm.
(9) Which party is more likely to maintain a loving,
stable, consistent and nurturing relationship with the child
adequate for the child's emotional needs.
(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and special
needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party's availability to care for the child or
ability to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with one
another. A party's effort to protect a child from abuse by
another party is not evidence of unwillingness or inability
to cooperate with that party.
(14) The history of drug or alcohol abuse of a party or
member of a party's household.
(15) The mental and physical condition of a party or
member of a party's household.
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(16) Any other relevant factor.]
including past abuse committed by a party or member of the
party's household, the level of conflict between the parties and
the willingness and ability of the parties to cooperate with one
another.
* * *
(c) Grandparents and great-grandparents.--
(1) In ordering [partial] shared physical custody or
supervised physical custody to a party who has standing under
section 5325(1) or (2) (relating to grandparent standing for
[partial] shared physical custody and supervised physical
custody), the court shall consider the following:
(i) the amount of personal contact between the child
and the party prior to the filing of the action;
(ii) whether the award interferes with any parent-
child relationship; and
(iii) whether the award is in the best interest of
the child.
(2) In ordering [partial] shared physical custody or
supervised physical custody to a parent's parent or
grandparent who has standing under section 5325(3), the court
shall consider whether the award:
(i) interferes with any parent-child relationship;
and
(ii) is in the best interest of the child.
§ 5329. Consideration of criminal conviction.
* * *
(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. §
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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.
* * *
§ 5329.1. Consideration of child abuse and involvement with
protective services.
* * *
(b) Cooperation.--The following apply:
(1) The Department of [Public Welfare] Human Services
and the county children and youth social service agency shall
fully cooperate with the court and assist the court in
fulfilling its duties under this section.
(2) The Department of [Public Welfare] Human Services
and the county children and youth social service agency shall
fully cooperate with the governing authority in order to
implement the provisions of this section.
* * *
§ 5331. Parenting plan.
* * *
(c) Form.--If the court orders the parties to propose a
parenting plan, it shall be submitted to the court in
substantially the following form:
CAPTION
PARENTING PLAN
This parenting plan involves the following child/children:
Child's Name Age Where does this child live?
1................... .............. ...........................
2................... .............. ...........................
3................... .............. ...........................
If you have children not addressed by this parenting plan, name
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here:
Child's Name Age Where does this child live?
1................... .............. ...........................
2................... .............. ...........................
3................... .............. ...........................
Legal Custody (who makes decisions about certain things):
Circle one
Diet.......... Both parties decide together / Plaintiff /
Defendant
Religion....... Both parties decide together / Plaintiff /
Defendant
Medical Care... Both parties decide together / Plaintiff /
Defendant
Mental Health Care... Both parties decide together / Plaintiff /
Defendant
Discipline..... Both parents decide together / Plaintiff /
Defendant
Choice of School.... Both parents decide together / Plaintiff /
Defendant
Choice of Study..... Both parents decide together / Plaintiff /
Defendant
School Activities... Both parents decide together / Plaintiff /
Defendant
Sports Activities... Both parents decide together / Plaintiff /
Defendant
Additional Items... Both parents decide together / Plaintiff /
Defendant
Explain what process you will use to make decisions?
(For example, the parent confronted with or anticipating the
choice will call the other parent when the choice presents
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itself, and the other parent must agree or disagree within 24
hours of any deadline)
...............................................................
...............................................................
Physical Custody (where the child/children live)
The child's/children's residence [is with] will be presumed to
be at the home of both parents. If the parties have agreed
otherwise, please state where the child/children
reside.........................
Describe which days and which times of the day the
child/children will be with each person:
Sunday Monday Tuesday Wednesday Thursday Friday Saturday
........................................................
Describe where and when the child/children will be dropped off
and/or picked up (day and time of day)?
Drop-Off
Where...................................................
When....................................................
........................................................
Pick-Up
Where ...................................................
When ....................................................
.........................................................
If one of you doesn't show up, how long will the other
wait?.......................................................
If there are any extraordinary costs (taxi, train, airplane,
etc.), who will pay for which costs?
...........................................................
...........................................................
HOLIDAYS
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Where will the child/children stay?
HOLIDAY YEAR A YEAR B EVERY YEAR
Martin Luther King Day .......... .......... ...........
President's Day .......... .......... ...........
Easter .......... .......... ...........
Memorial Day .......... .......... ...........
Fourth of July .......... .......... ...........
Labor Day .......... .......... ...........
Yom Kippur .......... .......... ...........
Rosh Hashanah .......... .......... ...........
Thanksgiving .......... .......... ...........
Vacation after Thanksgiving .......... .......... ...........
Christmas Vacation .......... .......... ...........
Kwanzaa .......... .......... ...........
New Year's Eve/Day .......... .......... ...........
Spring Vacation .......... .......... ...........
Easter Sunday .......... .......... ...........
Child's Birthday .......... .......... ...........
Mother's Day .......... .......... ...........
Father's Day .......... .......... ...........
Other .......... .......... ...........
Other .......... .......... ...........
Other .......... .......... ...........
Summer Vacation Plans
.............................................................
.............................................................
Special Activities or School Activities
Will both of you attend?
Child's Name Activity If not, which of you will attend?
................. .......... ..................................
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................. .......... ..................................
................. .......... ..................................
Temporary changes to this parenting schedule
From time to time, one of you might want or need to rearrange
the parenting time schedule due to work, family or other events.
You can attempt to agree on these changes. If you cannot agree,
the parent receiving the request will make the final decision.
The parent asking for the change will ask......in
person........by letter/mail.....by phone
No later than
....12 hours..... 24 hours.... 1 week..... 1 month
The parent being asked for a change will reply
.... in person..... by letter/mail..... by phone
No later than
..... 12 hours....... 24 hours........ 1 week....... 1 month
May parents contact one another?..............................
When the child/children is/are with one of you, how may they
contact the other parent?.......................................
................................................................
When and how may ............contact the child?
................................................................
................................................................
In the event that proposed changes, disputes or alleged breaches
of this parenting plan and custody order are necessary or
desired, the parties agree that such changes will be addressed
by the following method (specify method of arbitration,
mediation, court action, etc.):
................................................................
................................................................
The following matter or matters as specified by the court:
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................................................................
................................................................
Other (Anything else you want to agree on):
................................................................
................................................................
................................................................
Date........................... ................................
Signature of Mother
Date........................... ................................
Signature of Father
Date........................... ................................
Signature of Witness
Section 4. This act shall take effect in 60 days.
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