PRINTER'S NO. 4105
No. 2685 Session of 2008
INTRODUCED BY BELFANTI, PHILLIPS, BEAR, BOYD, SHIMKUS, SIPTROTH,
SONNEY, SURRA, SWANGER, REICHLEY, MUSTIO, MELIO, LEVDANSKY,
KORTZ, HARHART, GIBBONS, GEIST, CAPPELLI, HARKINS, HESS,
KOTIK, KULA, R. MILLER, OLIVER, PRESTON, SAYLOR, SCHRODER,
SOLOBAY, STERN, WALKO AND YOUNGBLOOD, JUNE 27, 2008
REFERRED TO COMMITTEE ON JUDICIARY, JUNE 27, 2008
AN ACT
1 Amending Title 23 (Domestic Relations) of the Pennsylvania
2 Consolidated Statutes, further providing for the definition
3 of "shared custody"; adding definitions; and further
4 providing for custody of children.
5 The General Assembly of the Commonwealth of Pennsylvania
6 hereby enacts as follows:
7 Section 1. The definition of "shared custody" in section
8 5302 of Title 23 of the Pennsylvania Consolidated Statutes is
9 amended and the section is amended by adding definitions to
10 read:
11 § 5302. Definitions.
12 The following words and phrases when used in this subchapter
13 shall have the meanings given to them in this section unless the
14 context clearly indicates otherwise:
15 * * *
16 "Joint custody." Joint legal and physical custody. An award
17 of joint legal and physical custody obligates the parties to
1 exchange information concerning the health, education and
2 welfare of the minor child, and unless allocated, apportioned or
3 decreed, the parents or parties shall confer with one another in
4 the exercise of decision-making rights, responsibilities and
5 authority.
6 "Joint legal custody." The state in which the parents or
7 parties share, have voluntarily allocated or the court has
8 decreed between them, the decision-making rights,
9 responsibilities and authority relating to the health, education
10 and welfare of a child.
11 "Joint physical custody." The state in which the court has
12 entered an order awarding each of the parents significant
13 periods of time in which a child resides with or is under the
14 care and supervision of each of the parents or parties. Joint
15 physical custody shall be shared by the parents in such a way as
16 to assure a child of frequent and continuing contact with both
17 parents.
18 * * *
19 ["Shared custody." An order awarding shared legal or shared
20 physical custody, or both, of a child in such a way as to assure
21 the child of frequent and continuing contact with and physical
22 access to both parents.]
23 * * *
24 Section 2. Section 5303 of Title 23 is amended to read:
25 § 5303. Award of custody, partial custody or visitation.
26 (a) General rule.--An order for joint custody shall be
27 awarded by the court unless the court finds that joint custody
28 is not in the best interest of the child. There shall be a
29 rebuttable presumption that an award of joint custody is in the
30 best interest of the child. The court shall state on record the
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1 reason for any award other than an award of joint custody.
2 (a.1) Factors for court's consideration.--In making an order
3 for custody, partial custody or visitation to either parent, the
4 court shall consider the following factors:
5 (1) [In making an order for custody or partial custody,
6 the court shall consider the] The preference of the child as
7 well as any other factor which legitimately impacts the
8 child's physical, intellectual and emotional well-being.
9 (2) [In making an order for custody, partial custody or
10 visitation to either parent, the court shall consider, among
11 other factors, which] Which parent is more likely to
12 encourage, permit and allow frequent and continuing contact
13 and physical access between the noncustodial parent and the
14 child as evidenced in parenting plan proposals.
15 (3) [The court shall consider each] Each parent and
16 adult household member's present and past violent or abusive
17 conduct which may include, but is not limited to, abusive
18 conduct as defined under the act of October 7, 1976
19 (P.L.1090, No.218), known as the Protection From Abuse Act.
20 (4) The likelihood of the parents to cooperate on child-
21 care matters and to make parenting decisions jointly.
22 (5) The ability and intent of each parent to facilitate
23 joint custody access as well as to arrange geographic
24 convenience or readily available transportation as relates to
25 practical considerations of physical parenting.
26 (6) The recommendations of the representative of the
27 child, if the child has a representative.
28 (b) Consideration of criminal conviction.--If a parent has
29 been convicted of or has pleaded guilty or no contest to an
30 offense as set forth below, the court shall consider such
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1 criminal conduct and shall determine that the parent does not
2 pose a threat of harm to the child before making an order of
3 custody, partial custody or visitation to that parent:
4 (1) 18 Pa.C.S. Ch. 25 (relating to criminal homicide);
5 (2) 18 Pa.C.S. § 2901 (relating to kidnapping);
6 (3) 18 Pa.C.S. § 2902 (relating to unlawful restraint);
7 (4) 18 Pa.C.S. § 3121 (relating to rape);
8 (5) 18 Pa.C.S. § 3122.1 (relating to statutory sexual
9 assault);
10 (6) 18 Pa.C.S. § 3123 (relating to involuntary deviate
11 sexual intercourse);
12 (7) 18 Pa.C.S. § 3124.1 (relating to sexual assault);
13 (8) 18 Pa.C.S. § 3125 (relating to aggravated indecent
14 assault);
15 (9) 18 Pa.C.S. § 3126 (relating to indecent assault);
16 (10) 18 Pa.C.S. § 3127 (relating to indecent exposure);
17 (11) 18 Pa.C.S. § 4302 (relating to incest);
18 (12) 18 Pa.C.S. § 4304 (relating to endangering welfare
19 of children);
20 (13) 18 Pa.C.S. § 5902(b) (relating to prostitution and
21 related offenses); or
22 (14) 18 Pa.C.S. § 6312 (relating to sexual abuse of
23 children).
24 (b.1) Consideration of criminal charge.--
25 (1) A parent who has obtained information under 42
26 Pa.C.S. § 1904 (relating to availability of criminal charge
27 information in child custody proceedings) of the charge filed
28 against the other parent for an offense listed in paragraph
29 (2) may move for a temporary custody order or to modify an
30 existing custody, partial custody or visitation order. The
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1 temporary custody or modification hearing shall be scheduled
2 expeditiously.
3 (2) In evaluating any request for temporary custody or
4 modification of a custody, partial custody or visitation
5 order, the court shall consider whether the parent who is or
6 has been charged with an offense listed below poses a risk of
7 harm to the child:
8 (i) 18 Pa.C.S. Ch. 25;
9 (ii) 18 Pa.C.S. § 2702 (relating to aggravated
10 assault);
11 (iii) 18 Pa.C.S. § 2706 (relating to terroristic
12 threats);
13 (iv) 18 Pa.C.S. § 2709.1 (relating to stalking);
14 (v) 18 Pa.C.S. § 2901;
15 (vi) 18 Pa.C.S. § 2902;
16 (vii) 18 Pa.C.S. § 2903 (relating to false
17 imprisonment);
18 (viii) 18 Pa.C.S. § 3121;
19 (ix) 18 Pa.C.S. § 3122.1;
20 (x) 18 Pa.C.S. § 3123;
21 (xi) 18 Pa.C.S. § 3124.1;
22 (xii) 18 Pa.C.S. § 3125;
23 (xiii) 18 Pa.C.S. § 3126;
24 (xiv) 18 Pa.C.S. § 3127;
25 (xv) 18 Pa.C.S. § 3301 (relating to arson and
26 related offenses);
27 (xvi) 18 Pa.C.S. § 4302;
28 (xvii) 18 Pa.C.S. § 4304;
29 (xviii) 18 Pa.C.S. § 6312; and
30 (xix) 23 Pa.C.S. § 6114 (relating to contempt for
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1 violation of order or agreement).
2 (3) Failure to apply for information under 42 Pa.C.S. §
3 1904 or to act under this subsection shall not prejudice any
4 parent in a custody or visitation proceeding.
5 (b.2) Parent convicted of murder.--No court shall award
6 custody, partial custody or visitation to a parent who has been
7 convicted of murder under 18 Pa.C.S. § 2502(a) (relating to
8 murder of the first degree) of the other parent of the child who
9 is the subject of the order, unless the child is of suitable age
10 and consents to the order.
11 (c) Counseling.--In making a determination to award custody,
12 partial custody or visitation pursuant to subsection (b), the
13 court shall appoint a qualified professional to provide
14 counseling to an offending parent described in subsection (b)
15 and shall take testimony from that professional regarding the
16 provision of such counseling prior to issuing any order of
17 custody, partial custody or visitation. Counseling, required in
18 accordance with this subsection, shall include a program of
19 treatment or individual therapy designed to rehabilitate a
20 parent which addresses, but is not limited to, issues regarding
21 physical and sexual abuse, domestic violence, the psychology of
22 the offender and the effects of abuse on the victim. If the
23 court awards custody, partial custody or visitation to an
24 offending parent described in subsection (b), the court may
25 require subsequent periodic counseling and reports on the
26 rehabilitation of the offending parent and the well-being of the
27 child following an order relating to custody, partial custody or
28 visitation. If, upon review of a subsequent report or reports,
29 the court determines that the offending parent poses a threat of
30 harm to the child, the court may schedule a hearing and modify
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1 the order of custody or visitation to protect the well-being of
2 the child.
3 (d) Sole custody.--The court shall award sole custody when
4 it finds, after due consideration of the factors set forth under
5 subsection (a.1), that sole custody is in the best interest of
6 the child.
7 Section 3. Section 5304 of Title 23 is repealed:
8 [§ 5304. Award of shared custody.
9 An order for shared custody may be awarded by the court when
10 it is in the best interest of the child:
11 (1) upon application of one or both parents;
12 (2) when the parties have agreed to an award of shared
13 custody; or
14 (3) in the discretion of the court.]
15 Section 4. Title 23 is amended by adding a section to read:
16 § 5304.1. Relationship of joint custody to child support.
17 An award of joint custody shall not by itself diminish nor
18 increase the responsibility of each parent to provide for the
19 financial support of the child. Joint custody shall not be
20 decreed exclusively for the purpose of affecting child support,
21 and joint custody by itself shall not constitute sufficient
22 grounds for modification of a support order.
23 Section 5. Sections 5305(a), 5306, 5309 and 5310 of Title 23
24 are amended to read:
25 § 5305. Counseling.
26 (a) General rule.--The court [may] shall require the parents
27 to attend counseling sessions except where the parents have
28 agreed to a custody award, in which case counseling is at the
29 court's discretion, and [may] shall, where the court has ordered
30 counseling, consider the recommendations of the counselors prior
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1 to awarding sole or [shared] joint custody. These counseling
2 sessions may include, but shall not be limited to, discussions
3 of the responsibilities and decisionmaking arrangements involved
4 in both sole and [shared] joint custody and the suitability of
5 each arrangement to the capabilities of each parent or both
6 parents.
7 * * *
8 § 5306. Plan for implementation of custody order.
9 (a) Mandatory plan.--In awarding joint custody, the court
10 shall require the parents to submit a parenting plan. The court
11 may order mediation where appropriate to assist the parents in
12 producing an individual or a joint parenting plan. In the event
13 the parents fail to submit an agreed-to parenting plan, the
14 court shall produce the plan after consultation with the
15 mediator. The court shall give consideration to any individual
16 parenting plan produced by either or both parents. The parenting
17 plan shall include provisions covering matters relevant to the
18 care and custody of the child, including, but not limited to:
19 (1) the child's education and religious training;
20 (2) the child's health care;
21 (3) the child's personal care and control, including
22 parenting time, holidays, vacations and child care;
23 (4) transportation arrangements;
24 (5) a procedure by which proposed changes, disputes and
25 alleged breaches of the parenting plan may be mediated,
26 arbitrated, adjudicated or otherwise resolved; and
27 (6) any other factors the court deems to be in the best
28 interest of the child.
29 (b) Enforcement of order.--In making an order of joint
30 custody, the court shall specify the right of each parent to the
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1 physical control of the child in sufficient detail to enable a
2 parent deprived of that control to enforce the court order and
3 to enable law enforcement authorities to implement laws for
4 relief of parental kidnapping.
5 (c) Receipt of public welfare.--One parent may be designated
6 as a public welfare recipient in situations where public welfare
7 aid is deemed necessary and appropriate.
8 (d) Discretionary.--The court, in its discretion, may
9 require the parents to submit to the court a plan for the
10 implementation of any other type of custody [order made] ordered
11 under this subchapter. Upon the request of either parent or the
12 court, the domestic relations section of the court or other
13 party or agency approved by the court shall assist in the
14 formulation and implementation of the plan.
15 § 5309. Access to records and information.
16 (a) General rule.--Except as provided in subsections (b) and
17 (c), each parent shall be provided access to all the medical,
18 dental, religious or school records of the child, the residence
19 address of the child and of the other parent and any other
20 information that the [court deems necessary] other parent has or
21 has access to.
22 (b) Court determination not to release information.--The
23 court, in its discretion, may determine not to release any part
24 or parts of the information in this section but in doing so must
25 state its reason for denial on the record.
26 (c) Nondisclosure of confidential information.--The court
27 shall not order that the address of a shelter for battered
28 spouses and their dependent children or otherwise confidential
29 information of a domestic violence counselor be disclosed to the
30 defendant or his counsel or any party to the proceedings.
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1 (d) Equal access to records by both parents.--
2 Notwithstanding any other provision of law, access to any
3 records and information pertaining to the child shall not be
4 denied to any parent for the sole reason that such parent is not
5 a custodial parent of the child.
6 § 5310. Modification of existing custody orders.
7 Any order for the custody of the child of a marriage or
8 adoption entered by a court in this Commonwealth or any state
9 may, subject to the jurisdictional requirements set forth in
10 Chapter 54 (relating to uniform child custody jurisdiction and
11 enforcement), be modified at any time to an order of [shared]
12 sole custody or joint custody in accordance with this subchapter
13 to reflect changes in circumstances which make the prior custody
14 order insufficient or ineffective.
15 Section 6. This act shall take effect in 60 days.
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