PRINTER'S NO. 103
No. 74 Session of 2007
INTRODUCED BY GREENLEAF, TARTAGLIONE, BOSCOLA, STOUT, RAFFERTY,
WONDERLING, WOZNIAK, RHOADES, ORIE, O'PAKE AND BROWNE,
FEBRUARY 12, 2007
REFERRED TO JUDICIARY, FEBRUARY 12, 2007
AN ACT
1 Amending Titles 23 (Domestic Relations) and 42 (Judiciary and
2 Judicial Procedure) of the Pennsylvania Consolidated
3 Statutes, further providing for contempt for noncompliance
4 with visitation or partial custody order and for child
5 custody; and making conforming amendments.
6 The General Assembly of the Commonwealth of Pennsylvania
7 hereby enacts as follows:
8 Section 1. Section 4346, Chapter 53 and Subchapter A
9 headings and sections 5301, 5302, 5303, 5304, 5305, 5306, 5307,
10 5308, 5309, 5310, 5311, 5312, 5313 and 5314 of Title 23 of the
11 Pennsylvania Consolidated Statutes are amended to read:
12 [§ 4346. Contempt for noncompliance with visitation or partial
13 custody order.
14 (a) General rule.--A party who willfully fails to comply
15 with any visitation or partial custody order may, as prescribed
16 by general rule, be adjudged in contempt. Contempt shall be
17 punishable by any one or more of the following:
18 (1) Imprisonment for a period not to exceed six months.
19 (2) A fine not to exceed $500.
1 (3) Probation for a period not to exceed six months.
2 (4) An order for nonrenewal, suspension or denial of
3 operating privilege pursuant to section 4355 (relating to
4 denial or suspension of licenses).
5 (b) Condition for release.--An order committing a person to
6 jail under this section shall specify the condition which, when
7 fulfilled, will result in the release of the obligor.
8 CHAPTER 53
9 CUSTODY
10 SUBCHAPTER A
11 GENERAL PROVISIONS
12 § 5301. Declaration of policy.
13 The General Assembly declares that it is the public policy of
14 this Commonwealth, when in the best interest of the child, to
15 assure a reasonable and continuing contact of the child with
16 both parents after a separation or dissolution of the marriage
17 and the sharing of the rights and responsibilities of child
18 rearing by both parents and continuing contact of the child or
19 children with grandparents when a parent is deceased, divorced
20 or separated.
21 § 5302. Definitions.
22 The following words and phrases when used in this subchapter
23 shall have the meanings given to them in this section unless the
24 context clearly indicates otherwise:
25 "Child." Any unemancipated person under 18 years of age.
26 "Legal custody." The legal right to make major decisions
27 affecting the best interest of a minor child, including, but not
28 limited to, medical, religious and educational decisions.
29 "Partial custody." The right to take possession of a child
30 away from the custodial parent for a certain period of time.
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1 "Physical custody." The actual physical possession and
2 control of a child.
3 "Shared custody." An order awarding shared legal or shared
4 physical custody, or both, of a child in such a way as to assure
5 the child of frequent and continuing contact with and physical
6 access to both parents.
7 "Visitation." The right to visit a child. The term does not
8 include the right to remove a child from the custodial parent's
9 control.
10 § 5303. Award of custody, partial custody or visitation.
11 (a) General rule.--
12 (1) In making an order for custody or partial custody,
13 the court shall consider the preference of the child as well
14 as any other factor which legitimately impacts the child's
15 physical, intellectual and emotional well-being.
16 (2) In making an order for custody, partial custody or
17 visitation to either parent, the court shall consider, among
18 other factors, which parent is more likely to encourage,
19 permit and allow frequent and continuing contact and physical
20 access between the noncustodial parent and the child.
21 (3) The court shall consider each parent and adult
22 household member's present and past violent or abusive
23 conduct which may include, but is not limited to, abusive
24 conduct as defined under the act of October 7, 1976
25 (P.L.1090, No.218), known as the Protection From Abuse Act.
26 (b) Consideration of criminal conviction.--If a parent has
27 been convicted of or has pleaded guilty or no contest to an
28 offense as set forth below, the court shall consider such
29 criminal conduct and shall determine that the parent does not
30 pose a threat of harm to the child before making an order of
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1 custody, partial custody or visitation to that parent:
2 (1) 18 Pa.C.S. Ch. 25 (relating to criminal homicide);
3 (2) 18 Pa.C.S. § 2901 (relating to kidnapping);
4 (3) 18 Pa.C.S. § 2902 (relating to unlawful restraint);
5 (4) 18 Pa.C.S. § 3121 (relating to rape);
6 (5) 18 Pa.C.S. § 3122.1 (relating to statutory sexual
7 assault);
8 (6) 18 Pa.C.S. § 3123 (relating to involuntary deviate
9 sexual intercourse);
10 (7) 18 Pa.C.S. § 3124.1 (relating to sexual assault);
11 (8) 18 Pa.C.S. § 3125 (relating to aggravated indecent
12 assault);
13 (9) 18 Pa.C.S. § 3126 (relating to indecent assault);
14 (10) 18 Pa.C.S. § 3127 (relating to indecent exposure);
15 (11) 18 Pa.C.S. § 4302 (relating to incest);
16 (12) 18 Pa.C.S. § 4304 (relating to endangering welfare
17 of children);
18 (13) 18 Pa.C.S. § 5902(b) (relating to prostitution and
19 related offenses); or
20 (14) 18 Pa.C.S. § 6312 (relating to sexual abuse of
21 children).
22 (b.1) Consideration of criminal charge.--
23 (1) A parent who has obtained information under 42
24 Pa.C.S. § 1904 (relating to availability of criminal charge
25 information in child custody proceedings) of the charge filed
26 against the other parent for an offense listed in paragraph
27 (2) may move for a temporary custody order or to modify an
28 existing custody, partial custody or visitation order. The
29 temporary custody or modification hearing shall be scheduled
30 expeditiously.
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1 (2) In evaluating any request for temporary custody or
2 modification of a custody, partial custody or visitation
3 order, the court shall consider whether the parent who is or
4 has been charged with an offense listed below poses a risk of
5 harm to the child:
6 (i) 18 Pa.C.S. Ch. 25;
7 (ii) 18 Pa.C.S. § 2702 (relating to aggravated
8 assault);
9 (iii) 18 Pa.C.S. § 2706 (relating to terroristic
10 threats);
11 (iv) 18 Pa.C.S. § 2709.1 (relating to stalking);
12 (v) 18 Pa.C.S. § 2901;
13 (vi) 18 Pa.C.S. § 2902;
14 (vii) 18 Pa.C.S. § 2903 (relating to false
15 imprisonment);
16 (viii) 18 Pa.C.S. § 3121;
17 (ix) 18 Pa.C.S. § 3122.1;
18 (x) 18 Pa.C.S. § 3123;
19 (xi) 18 Pa.C.S. § 3124.1;
20 (xii) 18 Pa.C.S. § 3125;
21 (xiii) 18 Pa.C.S. § 3126;
22 (xiv) 18 Pa.C.S. § 3127;
23 (xv) 18 Pa.C.S. § 3301 (relating to arson and
24 related offenses);
25 (xvi) 18 Pa.C.S. § 4302;
26 (xvii) 18 Pa.C.S. § 4304;
27 (xviii) 18 Pa.C.S. § 6312; and
28 (xix) 23 Pa.C.S. § 6114 (relating to contempt for
29 violation of order or agreement).
30 (3) Failure to apply for information under 42 Pa.C.S. §
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1 1904 or to act under this subsection shall not prejudice any
2 parent in a custody or visitation proceeding.
3 (b.2) Parent convicted of murder.--No court shall award
4 custody, partial custody or visitation to a parent who has been
5 convicted of murder under 18 Pa.C.S. § 2502(a) (relating to
6 murder of the first degree) of the other parent of the child who
7 is the subject of the order, unless the child is of suitable age
8 and consents to the order.
9 (c) Counseling.--In making a determination to award custody,
10 partial custody or visitation pursuant to subsection (b), the
11 court shall appoint a qualified professional to provide
12 counseling to an offending parent described in subsection (b)
13 and shall take testimony from that professional regarding the
14 provision of such counseling prior to issuing any order of
15 custody, partial custody or visitation. Counseling, required in
16 accordance with this subsection, shall include a program of
17 treatment or individual therapy designed to rehabilitate a
18 parent which addresses, but is not limited to, issues regarding
19 physical and sexual abuse, domestic violence, the psychology of
20 the offender and the effects of abuse on the victim. If the
21 court awards custody, partial custody or visitation to an
22 offending parent described in subsection (b), the court may
23 require subsequent periodic counseling and reports on the
24 rehabilitation of the offending parent and the well-being of the
25 child following an order relating to custody, partial custody or
26 visitation. If, upon review of a subsequent report or reports,
27 the court determines that the offending parent poses a threat of
28 harm to the child, the court may schedule a hearing and modify
29 the order of custody or visitation to protect the well-being of
30 the child.
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1 (d) Sole custody.--The court shall award sole custody when
2 it is in the best interest of the child.
3 § 5304. Award of shared custody.
4 An order for shared custody may be awarded by the court when
5 it is in the best interest of the child:
6 (1) upon application of one or both parents;
7 (2) when the parties have agreed to an award of shared
8 custody; or
9 (3) in the discretion of the court.
10 § 5305. Counseling.
11 (a) General rule.--The court may require the parents to
12 attend counseling sessions and may consider the recommendations
13 of the counselors prior to awarding sole or shared custody.
14 These counseling sessions may include, but shall not be limited
15 to, discussions of the responsibilities and decisionmaking
16 arrangements involved in both sole and shared custody and the
17 suitability of each arrangement to the capabilities of each
18 parent or both parents.
19 (b) Temporary custody.--The court may temporarily award
20 custody to either parent or both parents pending resolution of
21 any counseling.
22 (c) Report.--The court may require the counselor to submit a
23 report if the court desires and within such reasonable time as
24 the court determines.
25 § 5306. Plan for implementation of custody order.
26 The court, in its discretion, may require the parents to
27 submit to the court a plan for the implementation of any custody
28 order made under this subchapter. Upon the request of either
29 parent or the court, the domestic relations section of the court
30 or other party or agency approved by the court shall assist in
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1 the formulation and implementation of the plan.
2 § 5307. Denial of custody under agreement or plan.
3 When the court declines to enter an order awarding custody
4 either as agreed to by the parents or under the plan developed
5 by the parents, the court shall state its reasons for denial on
6 the record.
7 § 5308. Removal of party or child from jurisdiction.
8 If either party intends to or does remove himself or the
9 child from this Commonwealth after a custody order has been
10 made, the court, on its own motion or upon motion of either
11 party, may review the existing custody order.
12 § 5309. Access to records and information.
13 (a) General rule.--Except as provided in subsections (b) and
14 (c), each parent shall be provided access to all the medical,
15 dental, religious or school records of the child, the residence
16 address of the child and of the other parent and any other
17 information that the court deems necessary.
18 (b) Court determination not to release information.--The
19 court, in its discretion, may determine not to release any part
20 or parts of the information in this section but in doing so must
21 state its reason for denial on the record.
22 (c) Nondisclosure of confidential information.--The court
23 shall not order that the address of a shelter for battered
24 spouses and their dependent children or otherwise confidential
25 information of a domestic violence counselor be disclosed to the
26 defendant or his counsel or any party to the proceedings.
27 § 5310. Modification of existing custody orders.
28 Any order for the custody of the child of a marriage entered
29 by a court in this Commonwealth or any state may, subject to the
30 jurisdictional requirements set forth in Chapter 54 (relating to
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1 uniform child custody jurisdiction and enforcement), be modified
2 at any time to an order of shared custody in accordance with
3 this subchapter.
4 § 5311. When parent deceased.
5 If a parent of an unmarried child is deceased, the parents or
6 grandparents of the deceased parent may be granted reasonable
7 partial custody or visitation rights, or both, to the unmarried
8 child by the court upon a finding that partial custody or
9 visitation rights, or both, would be in the best interest of the
10 child and would not interfere with the parent-child
11 relationship. The court shall consider the amount of personal
12 contact between the parents or grandparents of the deceased
13 parent and the child prior to the application.
14 § 5312. When parents' marriage is dissolved or parents are
15 separated.
16 In all proceedings for dissolution, subsequent to the
17 commencement of the proceeding and continuing thereafter or when
18 parents have been separated for six months or more, the court
19 may, upon application of the parent or grandparent of a party,
20 grant reasonable partial custody or visitation rights, or both,
21 to the unmarried child if it finds that visitation rights or
22 partial custody, or both, would be in the best interest of the
23 child and would not interfere with the parent-child
24 relationship. The court shall consider the amount of personal
25 contact between the parents or grandparents of the party and the
26 child prior to the application.
27 § 5313. When grandparents may petition.
28 (a) Partial custody and visitation.--If an unmarried child
29 has resided with his grandparents or great-grandparents for a
30 period of 12 months or more and is subsequently removed from the
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1 home by his parents, the grandparents or great-grandparents may
2 petition the court for an order granting them reasonable partial
3 custody or visitation rights, or both, to the child. The court
4 shall grant the petition if it finds that visitation rights
5 would be in the best interest of the child and would not
6 interfere with the parent-child relationship.
7 (b) Physical and legal custody.--A grandparent has standing
8 to bring a petition for physical and legal custody of a
9 grandchild. If it is in the best interest of the child not to be
10 in the custody of either parent and if it is in the best
11 interest of the child to be in the custody of the grandparent,
12 the court may award physical and legal custody to the
13 grandparent. This subsection applies to a grandparent:
14 (1) who has genuine care and concern for the child;
15 (2) whose relationship with the child began with the
16 consent of a parent of the child or pursuant to an order of
17 court; and
18 (3) who for 12 months has assumed the role and
19 responsibilities of the child's parent, providing for the
20 physical, emotional and social needs of the child, or who
21 assumes the responsibility for a child who has been
22 determined to be a dependent child pursuant to 42 Pa.C.S. Ch.
23 63 (relating to juvenile matters) or who assumes or deems it
24 necessary to assume responsibility for a child who is
25 substantially at risk due to parental abuse, neglect, drug or
26 alcohol abuse or mental illness. The court may issue a
27 temporary order pursuant to this section.
28 § 5314. Exception for adopted children.
29 Sections 5311 (relating to when parent deceased), 5312
30 (relating to when parents' marriage is dissolved or parents are
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1 separated) and 5313 (relating to when child has resided with
2 grandparents) shall not apply if the child has been adopted by a
3 person other than a stepparent or grandparent. Any visitation
4 rights granted pursuant to this section prior to the adoption of
5 the child shall be automatically terminated upon such adoption.]
6 Section 2. Section 5315 of Title 23, added November 29, 2006
7 (P.L. , No.175), is amended to read:
8 [§ 5315. Court-appointed child custody health care or
9 behavioral health practitioners.
10 No party to a child custody matter in which the court has
11 appointed a licensed health care or behavioral health
12 practitioner to assist the court by conducting an examination or
13 evaluation of the parties involved or making a recommendation
14 concerning a child custody agreement or order may be permitted
15 to file a complaint against the practitioner with the
16 practitioner's State licensing board prior to the final
17 agreement or order being issued and for 60 days thereafter. As
18 used in this section, "licensed health care or behavioral health
19 practitioner" means a person who is licensed, certified,
20 accredited or otherwise regulated by the Commonwealth to provide
21 health care or behavioral health services.]
22 Section 3. Title 23 is amended by adding a chapter to read:
23 CHAPTER 53
24 CHILD CUSTODY
25 Sec.
26 5321. Scope.
27 5321.1. Declaration of policy.
28 5322. Definitions.
29 5323. Award of custody or visitation.
30 5324. Standing for any form of physical custody, legal
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1 custody or visitation.
2 5325. Standing for partial physical custody and visitation.
3 5326. Effect of adoption.
4 5327. Presumption in cases concerning primary physical
5 custody.
6 5328. Factors to consider when awarding custody.
7 5329. Consideration of criminal conviction.
8 5330. Consideration of criminal charge.
9 5331. Parenting plan.
10 5332. Informational programs.
11 5333. Counseling as part of order.
12 5334. Guardian ad litem for child.
13 5335. Counsel for child.
14 5336. Access to records and information.
15 5337. Relocation.
16 5338. Modification of existing order.
17 5339. Award of counsel fees, costs and expenses.
18 5340. Court-appointed child custody health care or behavioral
19 health practitioners.
20 § 5321. Scope.
21 This chapter applies to disputes relating to child custody
22 and visitation matters.
23 § 5321.1. Declaration of policy.
24 The General Assembly declares that it is the public policy of
25 this Commonwealth, when in the best interest of the child, to
26 assure a reasonable and continuing contact of the child with
27 both parents after a separation or dissolution of the marriage
28 and the sharing of the rights and responsibilities of
29 childrearing by both parents and continuing contact of the child
30 or children with grandparents when a parent is deceased,
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1 divorced or separated.
2 § 5322. Definitions.
3 The following words and phrases when used in this chapter
4 shall have the meanings given to them in this section unless the
5 context clearly indicates otherwise:
6 "Abuse." As defined in section 6102 (relating to
7 definitions).
8 "Adult." An individual 18 years of age or older.
9 "Agency." Any organization, society, institution or other
10 entity, including the county children and youth social service
11 agency or court facility, which provides for the care of the
12 child.
13 "Child." An unemancipated individual under 18 years of age.
14 "Legal custody." The right to make major decisions on behalf
15 of the child, including, but not limited to, medical, religious
16 and educational decisions.
17 "Parental duties." Includes meeting the physical, emotional
18 and social needs of the child.
19 "Partial physical custody." The right to assume physical
20 custody of the child for less than a majority of the time.
21 "Physical custody." The actual physical possession and
22 control of a child.
23 "Primary physical custody." The right to assume physical
24 custody of the child for the majority of time.
25 "Relocation." A change in a residence of the child which
26 significantly impairs the ability of a nonrelocating party to
27 exercise custodial rights.
28 "Shared legal custody." The right of more than one
29 individual to legal custody of the child.
30 "Shared physical custody." The right of more than one
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1 individual to assume physical custody of the child, each having
2 approximately the same amount of physical custodial time with
3 the child.
4 "Sole legal custody." The right of one individual to
5 exclusive legal custody of the child.
6 "Sole physical custody." The right of one individual to
7 exclusive physical custody of the child.
8 "Supervised visitation." Visitation in which an agency or an
9 adult designated by the court or agreed upon by the parties
10 monitors the interaction between the child and the individual
11 with visitation rights.
12 "Visitation." The right to spend time with the child but not
13 the right to remove the child from the care or control of a
14 custodial party.
15 § 5323. Award of custody or visitation.
16 (a) Types of award.--After considering the factors set forth
17 in section 5328 (relating to factors to consider when awarding
18 custody), the court may award any of the following types of
19 custody and visitation if it is in the best interest of the
20 child:
21 (1) Sole legal custody.
22 (2) Shared legal custody.
23 (3) Sole physical custody.
24 (4) Shared physical custody.
25 (5) Primary physical custody.
26 (6) Partial physical custody.
27 (7) Visitation.
28 (8) Supervised visitation.
29 (b) Interim award.--The court may issue an interim award of
30 custody or visitation to a party who has standing under section
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1 5324 (relating to standing for any form of physical custody,
2 legal custody or visitation) or 5325 (relating to standing for
3 partial physical custody and visitation), in the manner
4 prescribed by the Pennsylvania Rules of Civil Procedure
5 governing special relief in custody and visitation matters.
6 (c) Notice.--Any custody or visitation order shall include
7 notice of a party's obligations under section 5337 (relating to
8 relocation).
9 (d) Reasons for award.--The court shall state the reasons
10 for its decision in the custody order. The reasons may be stated
11 in narrative form.
12 (e) Safety conditions.--After considering the factors under
13 section 5328(a)(6), if the court finds that there is an ongoing
14 risk of harm to the child or an abused party and awards any form
15 of custody or visitation to a party who committed the abuse or
16 who has a household member who committed the abuse, the court
17 shall include in the custody order safety conditions designed to
18 protect the child or the abused party.
19 (f) Enforcement.--In awarding custody or visitation, the
20 court shall specify the terms and conditions of the award in
21 sufficient detail to enable a party to enforce the court order
22 through law enforcement authorities.
23 (g) Contempt for noncompliance with any custody or
24 visitation order.--
25 (1) A party who willfully fails to comply with any
26 custody or visitation order may, as prescribed by general
27 rule, be adjudged in contempt. Contempt shall be punishable
28 by any one or more of the following:
29 (i) Imprisonment for a period of not more than six
30 months.
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1 (ii) A fine of not more than $500.
2 (iii) Probation for a period of not more than six
3 months.
4 (iv) An order for nonrenewal, suspension or denial
5 of operating privilege pursuant to section 4355 (relating
6 to denial or suspension of licenses).
7 (v) Counsel fees and costs.
8 (2) An order committing an individual to jail under this
9 section shall specify the condition which, when fulfilled,
10 will result in the release of that individual.
11 (h) Parties in same residence.--Parties living separate and
12 apart in the same residence may seek relief under this chapter,
13 but any custody or visitation order made under such a
14 circumstance shall be effective only upon:
15 (1) one party physically vacating the residence; or
16 (2) an order awarding one party exclusive possession of
17 the residence.
18 § 5324. Standing for any form of physical custody, legal
19 custody or visitation.
20 The following individuals may file an action under this
21 chapter for any form of physical custody, legal custody or
22 visitation:
23 (1) A parent of the child.
24 (2) A person who stands in loco parentis to the child.
25 (3) A grandparent of the child who is not in loco
26 parentis to the child:
27 (i) whose relationship with the child began either
28 with the consent of a parent of the child or pursuant to
29 a court order;
30 (ii) who assumes or is willing to assume
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1 responsibility for the child; and
2 (iii) when one of the following conditions is met:
3 (A) the child has been determined to be a
4 dependent child pursuant to 42 Pa.C.S. Ch. 63
5 (relating to juvenile matters);
6 (B) the child is substantially at risk due to
7 parental abuse, neglect, drug or alcohol abuse or
8 incapacity; or
9 (C) the child has for a period of at least 12
10 consecutive months resided with the grandparent,
11 excluding brief temporary absences of the child from
12 the home, and is removed from the home by the
13 parents, in which case the action must be filed
14 within six months after the removal of the child from
15 the home.
16 § 5325. Standing for partial physical custody and visitation.
17 In addition to situations set forth in section 5324 (relating
18 to standing for any form of physical custody, legal custody or
19 visitation), grandparents and great-grandparents may file an
20 action under this chapter for partial physical custody or
21 visitation in the following situations:
22 (1) where the parent of the child is deceased, a parent
23 or grandparent of the deceased parent may file an action
24 under this section;
25 (2) where the parents of the child have been separated
26 for a period of at least six months or have commenced and
27 continued a proceeding to dissolve their marriage; or
28 (3) when the child has for a period of at least 12
29 consecutive months resided with the grandparent or great-
30 grandparent, excluding brief temporary absences of the child
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1 from the home, and is removed from the home by the parents,
2 an action must be filed within six months after the removal
3 of the child from the home.
4 § 5326. Effect of adoption.
5 Any rights to seek physical custody, legal custody or
6 visitation rights and any custody or visitation rights that have
7 been granted under section 5324 (relating to standing for any
8 form of physical custody, legal custody or visitation) or 5325
9 (relating to standing for partial physical custody and
10 visitation) to a grandparent or great-grandparent prior to the
11 adoption of the child by an individual other than a stepparent,
12 grandparent or great-grandparent shall be automatically
13 terminated upon such adoption.
14 § 5327. Presumption in cases concerning primary physical
15 custody.
16 (a) Between parents.--In any action regarding the custody of
17 the child between the parents of the child, there shall be no
18 presumption that custody should be awarded to a particular
19 parent.
20 (b) Between a parent and third party.--In any action
21 regarding the custody of the child between a parent of the child
22 and a nonparent, there shall be a presumption that custody shall
23 be awarded to the parent. The presumption in favor of the parent
24 may be rebutted by clear and convincing evidence.
25 (c) Between third parties.--In any action regarding the
26 custody of the child between a nonparent and another nonparent,
27 there shall be no presumption that custody should be awarded to
28 a particular party.
29 § 5328. Factors to consider when awarding custody.
30 (a) Factors.--In ordering any form of custody or visitation,
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1 the court shall determine the best interest of the child by
2 considering all relevant factors, including the following:
3 (1) Which party is more likely to encourage and permit
4 frequent and continuing contact between the child and another
5 party.
6 (2) The parental duties performed by each party on
7 behalf of the child.
8 (3) The need for stability and continuity in the child's
9 education, family life and community life.
10 (4) The availability of extended family.
11 (5) The child's sibling relationships.
12 (6) The present and past abuse committed by a party or
13 member of the party's household and whether there is a
14 continued risk of harm to the child or an abused party.
15 (7) The well-reasoned preference of the child, based on
16 the child's maturity and judgment.
17 (8) The attempts of a parent to turn the child against
18 the other parent.
19 (9) Which party is more likely to maintain a loving,
20 stable, consistent and nurturing relationship with the child
21 adequate for the child's emotional needs.
22 (10) Which party is more likely to attend to the daily
23 physical, emotional, developmental, educational and special
24 needs of the child.
25 (11) The proximity of the residences of the parties.
26 (12) Each party's availability to care for the child or
27 ability to make appropriate child care arrangements.
28 (13) The level of conflict between the parties and the
29 willingness and ability of the parties to cooperate with one
30 another. A party's effort to protect a child from abuse by
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1 another party is not evidence of unwillingness or inability
2 to cooperate with that party.
3 (14) The history of drug or alcohol abuse of a party or
4 member of a party's household.
5 (15) The mental and physical condition of a party or
6 member of a party's household.
7 (16) Any other relevant factor.
8 (b) Grandparents and great-grandparents.--
9 (1) In ordering partial physical custody or visitation
10 to a party who has standing under section 5325(1) or (2)
11 (relating to standing for partial physical custody and
12 visitation), the court shall consider the following:
13 (i) the amount of personal contact between the child
14 and the party prior to the filing of the action;
15 (ii) whether the award interferes with any parent-
16 child relationship; and
17 (iii) whether the award is in the best interest of
18 the child.
19 (2) In ordering partial physical custody or visitation
20 to a parent's parent or grandparent who has standing under
21 section 5325(3), the court shall consider whether the award:
22 (i) interferes with any parent-child relationship;
23 and
24 (ii) is in the best interest of the child.
25 § 5329. Consideration of criminal conviction.
26 (a) Offenses.--Where a party seeks any form of custody or
27 visitation, the court shall consider whether that party or
28 member of that party's household has been convicted of or has
29 pleaded guilty or no contest to any of the following offenses or
30 an offense in another jurisdiction equivalent to any of the
20070S0074B0103 - 20 -
1 following offenses:
2 18 Pa.C.S. Ch. 25 (relating to criminal homicide).
3 18 Pa.C.S. § 2702 (relating to aggravated assault).
4 18 Pa.C.S. § 2706 (relating to terroristic threats).
5 18 Pa.C.S. § 2709.1 (relating to stalking).
6 18 Pa.C.S. § 2901 (relating to kidnapping).
7 18 Pa.C.S. § 2902 (relating to unlawful restraint).
8 18 Pa.C.S. § 2903 (relating to false imprisonment).
9 18 Pa.C.S. § 2910 (relating to luring a child into a
10 motor vehicle or structure).
11 18 Pa.C.S. § 3121 (relating to rape).
12 18 Pa.C.S. § 3122.1 (relating to statutory sexual
13 assault).
14 18 Pa.C.S. § 3123 (relating to involuntary deviate sexual
15 intercourse).
16 18 Pa.C.S. § 3124.1 (relating to sexual assault).
17 18 Pa.C.S. § 3125 (relating to aggravated indecent
18 assault).
19 18 Pa.C.S. § 3126 (relating to indecent assault).
20 18 Pa.C.S. § 3127 (relating to indecent exposure).
21 18 Pa.C.S. § 3129 (relating to sexual intercourse with
22 animal).
23 18 Pa.C.S. § 3301 (relating to arson and related
24 offenses).
25 18 Pa.C.S. § 4302 (relating to incest).
26 18 Pa.C.S. § 4303 (relating to concealing death of
27 child).
28 18 Pa.C.S. § 4304 (relating to endangering welfare of
29 children).
30 18 Pa.C.S. § 4305 (relating to dealing in infant
20070S0074B0103 - 21 -
1 children).
2 18 Pa.C.S. § 5902(b) (relating to prostitution and
3 related offenses).
4 18 Pa.C.S. § 5903(c) or (d) (relating to obscene and
5 other sexual materials and performances).
6 18 Pa.C.S. § 6301 (relating to corruption of minors).
7 18 Pa.C.S. § 6312 (relating to sexual abuse of children).
8 18 Pa.C.S. § 6318 (relating to unlawful contact with
9 minor).
10 18 Pa.C.S. § 6320 (relating to sexual exploitation of
11 children).
12 23 Pa.C.S. § 6114 (relating to contempt for violation of
13 order or agreement).
14 The former 75 Pa.C.S. § 3731 (relating to driving under
15 influence of alcohol or controlled substance).
16 75 Pa.C.S. Ch. 38 (relating to driving after imbibing
17 alcohol or utilizing drugs).
18 Section 13(a)(1) of the act of April 14, 1972 (P.L.233,
19 No.64), known as The Controlled Substance, Drug, Device and
20 Cosmetic Act, to the extent that it prohibits the
21 manufacture, sale or delivery, holding, offering for sale or
22 possession of any controlled substance or other drug or
23 device.
24 (b) Parent convicted of murder.--No court shall award
25 custody, partial custody or visitation to a parent who has been
26 convicted of murder under 18 Pa.C.S. § 2502(a) (relating to
27 murder) of the other parent of the child who is the subject of
28 the order unless the child is of suitable age and consents to
29 the order.
30 (c) Initial evaluation.--The court shall provide for an
20070S0074B0103 - 22 -
1 evaluation to determine whether:
2 (1) the party or household member who committed an
3 offense under subsection (a) poses a threat to the child; and
4 (2) counseling is necessary for that party or household
5 member.
6 (d) Counseling.--
7 (1) Where the court determines under subsection (c) that
8 counseling is necessary, it shall appoint a qualified
9 professional specializing in treatment relating to the
10 particular offense to provide counseling to the offending
11 individual.
12 (2) Counseling may include a program of treatment or
13 individual therapy designed to rehabilitate the offending
14 individual which addresses, but is not limited to, issues
15 regarding physical and sexual abuse, the psychology of the
16 offender and the effects of the offense on the victim.
17 (e) Subsequent evaluation.--
18 (1) At any time during or subsequent to the counseling
19 under subsection (d), the court may require another
20 evaluation to determine whether further counseling is
21 necessary.
22 (2) If the court awards custody or visitation to a party
23 who committed an offense under subsection (a) or who shares a
24 household with an individual who committed an offense under
25 subsection (a), the court may require subsequent evaluations
26 on the rehabilitation of the offending individual and the
27 well-being of the child subsequent to the order. If upon
28 review of a subsequent evaluation the court determines that
29 the offending individual poses a threat of physical,
30 emotional or psychological harm to the child, the court may
20070S0074B0103 - 23 -
1 schedule a hearing to modify the custody or visitation order.
2 (f) Costs.--The court may order a party to pay all or part
3 of the costs of the counseling and evaluations under this
4 section.
5 § 5330. Consideration of criminal charge.
6 (a) Expedited hearing.--A party who has obtained information
7 under 42 Pa.C.S. § 1904 (relating to availability of criminal
8 charge information in child custody proceedings) or otherwise
9 about a charge filed against the other party for an offense
10 listed under section 5329(a) (relating to consideration of
11 criminal conviction) may move for a temporary custody or
12 visitation order or modification of an existing custody or
13 visitation order. The court shall hold the hearing under this
14 subsection in an expeditious manner.
15 (b) Risk of harm.--In evaluating any request under
16 subsection (a), the court shall consider whether the party who
17 is or has been charged with an offense set forth in section
18 5329(a) poses a risk of physical, emotional or psychological
19 harm to the child.
20 (c) No prejudice.--Failure to either apply for information
21 under 42 Pa.C.S. § 1904 or act under this section shall not
22 prejudice any party in a custody or visitation proceeding.
23 § 5331. Parenting plan.
24 (a) Purpose.--In a contested custody proceeding, the court
25 shall require the parties to submit parenting plans for the care
26 and custody of the child to aid the court in resolving the
27 custody dispute. A parenting plan and the position of a party as
28 set forth in that parenting plan shall not be admissible as
29 evidence by another party.
30 (b) Contents.--A parenting plan shall include the following:
20070S0074B0103 - 24 -
1 (1) The schedule for personal care and control of the
2 child, including parenting time, holidays and vacations.
3 (2) The education and religious involvement, if any, of
4 the child.
5 (3) The health care of the child.
6 (4) Child-care arrangements.
7 (5) Transportation arrangements.
8 (6) A procedure by which proposed changes, disputes and
9 alleged breaches of the custody order may be adjudicated or
10 otherwise resolved through mediation, arbitration or other
11 means.
12 (7) Any matter specified by the court.
13 (8) Any other matter that serves the best interest of
14 the child.
15 § 5332. Informational programs.
16 (a) Attendance.--The court may direct the parties to attend
17 informational programs concerning parental duties.
18 (b) Process not delayed.--Subsequent proceedings and the
19 entry of any order or decree shall not be delayed because of the
20 lack of participation in any informational program by one of the
21 parties.
22 (c) Costs.--The court may order a party to pay all or part
23 of the costs of the informational programs under this section.
24 § 5333. Counseling as part of order.
25 (a) Attendance.--The court may, as part of a custody or
26 visitation order, require the parties to attend counseling
27 sessions.
28 (b) Abuse.--In situations involving abuse, the court may
29 order individual counseling for the abuser but may not order the
30 parties to attend joint counseling.
20070S0074B0103 - 25 -
1 (c) Verification.--Each party's participation in the
2 counseling sessions shall be verified by the counselor.
3 (d) Costs.--The court may order a party to pay all or part
4 of the costs of the counseling sessions under this section.
5 § 5334. Guardian ad litem for child.
6 (a) Appointment.--The court may appoint a guardian ad litem
7 for the child. The court shall specify the terms of the
8 appointment, including the role, duties and scope of authority
9 of the guardian ad litem.
10 (b) Investigation and report.--The guardian ad litem shall
11 investigate and report to the court information relevant to the
12 custody or visitation proceeding.
13 (c) Abuse.--If substantial allegations of abuse of the child
14 are made, the court shall appoint a guardian ad litem for the
15 child if:
16 (1) counsel for the child is not appointed under section
17 5335 (relating to counsel for child); or
18 (2) the court is satisfied that the relevant information
19 will be presented to the court only with such appointment.
20 (d) Subject to examination.--A guardian ad litem who submits
21 a report or makes a recommendation to the court shall be subject
22 to examination by the parties.
23 (e) Costs.--The court may order a party to pay all or part
24 of the costs of appointing a guardian ad litem under this
25 section.
26 § 5335. Counsel for child.
27 (a) Appointment.--The court may appoint counsel to represent
28 the child if the court determines that the appointment will
29 assist in resolving the issues in the custody or visitation
30 proceeding.
20070S0074B0103 - 26 -
1 (b) Abuse.--Substantial allegations of abuse of the child
2 constitute a reasonable basis for appointing counsel for the
3 child.
4 (c) Not subject to examination.--Counsel appointed by the
5 court for the child shall not be subject to examination unless
6 such counsel testifies in the matter.
7 (d) Costs.--The court may order a party to pay all or part
8 of the costs of appointing counsel for the child under this
9 section.
10 § 5336. Access to records and information.
11 (a) General rule.--Except as provided in subsections (b) and
12 (c):
13 (1) A party granted sole or shared legal custody under
14 section 5323 (relating to award of custody or visitation)
15 shall be provided access to:
16 (i) the medical, dental, religious and school
17 records of the child;
18 (ii) the address of the child and any other party;
19 and
20 (iii) any other information that the court deems
21 necessary or proper.
22 (2) Upon request, a parent, party or entity possessing
23 any information set forth in paragraph (1) shall provide it
24 to any party granted sole or shared legal custody.
25 (b) Nondisclosure of confidential information.--The court
26 shall not order the disclosure of any of the following
27 information to any parent or party granted custody or
28 visitation:
29 (1) The address of a victim of abuse.
30 (2) Confidential information from an abuse counselor or
20070S0074B0103 - 27 -
1 shelter.
2 (3) Information protected under Chapter 67 (relating to
3 domestic and sexual violence victim address confidentiality).
4 (4) Information independently protected from disclosure
5 by the child's right to confidentiality under the act of July
6 9, 1976 (P.L.817, No.143), known as the Mental Health
7 Procedures Act, or any other statute.
8 (c) Other information.--The court may determine not to
9 release information set forth in subsection (a), in which case
10 it shall state the reason for its denial on the record.
11 § 5337. Relocation.
12 (a) Applicability.--This section applies to any proposed
13 relocation.
14 (b) General rule.--No relocation shall occur unless:
15 (1) every individual who has custody or visitation
16 rights to the child consents to the proposed relocation; or
17 (2) the court approves the proposed relocation.
18 (c) Notice.--
19 (1) The party proposing the relocation shall notify
20 every other individual who has custody or visitation rights
21 to the child.
22 (2) Reasonable notice shall be given no later than:
23 (i) the 60th day before the date of the proposed
24 relocation; or
25 (ii) the 10th day after the date that the individual
26 knows of the relocation, if:
27 (A) the individual did not know and could not
28 reasonably have known of the relocation in sufficient
29 time to comply with the 60-day notice; and
30 (B) it is not reasonably possible to delay the
20070S0074B0103 - 28 -
1 date of relocation so as to comply with the 60-day
2 notice.
3 (3) Except as provided by section 5336 (relating to
4 access to records and information), the following
5 information, if available, must be included with the notice
6 of the proposed relocation:
7 (i) The address of the intended new residence.
8 (ii) The mailing address, if not the same as the
9 address of the intended new residence.
10 (iii) The home telephone number of the intended new
11 residence.
12 (iv) The name of the new school district and school.
13 (v) The date of the proposed relocation.
14 (vi) The reasons for the proposed relocation.
15 (vii) A proposal for a revised custody or visitation
16 schedule.
17 (viii) Any other information which the party
18 proposing the relocation deems appropriate.
19 (ix) A warning to the nonrelocating party that if
20 the nonrelocating party does not file with the court an
21 objection to the proposed relocation within 30 days after
22 receipt of the notice, that party shall be foreclosed
23 from objecting to the relocation.
24 (4) If any of the information set forth in paragraph (3)
25 is not known when the notice is sent but is later made known
26 to the party proposing the relocation, then that party shall
27 promptly inform every individual who received notice under
28 this subsection.
29 (d) Objection to proposed relocation.--
30 (1) A party entitled to receive notice may file with the
20070S0074B0103 - 29 -
1 court an objection to the proposed relocation and seek a
2 temporary or permanent order to prevent the relocation.
3 (2) An objection made under this subsection shall be
4 filed with the court within 30 days of receipt of the
5 proposed relocation notice.
6 (3) If notice of the proposed relocation has been
7 properly given and no objection to the proposed relocation
8 has been filed in court, then it shall be presumed that the
9 nonrelocating party has consented to the proposed relocation.
10 (4) If a party entitled to notice does not file with the
11 court an objection to the relocation within 30 days after
12 receipt of the notice but later petitions the court for
13 review of the custodial arrangements, the court shall not
14 accept testimony challenging the relocation.
15 (e) Confirmation of relocation.--If no objection to the
16 proposed relocation is filed under subsection (d), the party
17 proposing the relocation may file the following with the court
18 prior to the relocation:
19 (1) an affidavit stating that the party provided notice
20 to every individual entitled to notice, the time to file an
21 objection to the proposed relocation has passed and no
22 individual entitled to receive notice has filed an objection
23 to the proposed relocation;
24 (2) a petition to confirm the relocation and modify any
25 existing custody or visitation order; and
26 (3) a proposed order containing the information set
27 forth in subsection (c)(3).
28 (f) Hearing.--
29 (1) The court shall hold an expedited full hearing on
30 the proposed relocation after a timely objection has been
20070S0074B0103 - 30 -
1 filed and before the relocation occurs unless exigent
2 circumstances exist, in which case the relocation may occur
3 pending an expedited full hearing.
4 (2) If the court approves the proposed relocation, it
5 shall:
6 (i) modify any existing custody or visitation order;
7 or
8 (ii) establish the terms and conditions of a custody
9 or visitation order.
10 (g) Relocation factors.--In determining whether to grant a
11 proposed relocation, the court shall consider the following
12 factors:
13 (1) The nature, quality, extent of involvement and
14 duration of the child's relationship with the party proposing
15 to relocate and with the nonrelocating party, siblings and
16 other significant persons in the child's life.
17 (2) The age, developmental stage, needs of the child and
18 the likely impact the relocation will have on the child's
19 physical, educational and emotional development, taking into
20 consideration any special needs of the child.
21 (3) The feasibility of preserving the relationship
22 between the nonrelocating party and the child through
23 suitable custody arrangements, considering the logistics and
24 financial circumstances of the parties.
25 (4) The child's preference, taking into consideration
26 the age and maturity of the child.
27 (5) Whether there is an established pattern of conduct
28 of either party to promote or thwart the relationship of the
29 child and the other party.
30 (6) Whether the relocation will enhance the general
20070S0074B0103 - 31 -
1 quality of life for the party seeking the relocation,
2 including, but not limited to, financial or emotional benefit
3 or educational opportunity.
4 (7) Whether the relocation will enhance the general
5 quality of life for the child, including, but not limited to,
6 financial or emotional benefit or educational opportunity.
7 (8) The reasons and motivation of each party for seeking
8 or opposing the relocation.
9 (9) The present and past abuse committed by a party or
10 member of the party's household and whether there is a
11 continued risk of harm to the child or an abused party.
12 (10) Any other factor affecting the best interest of the
13 child.
14 (h) Burden of proof.--
15 (1) The party proposing the relocation has the burden of
16 establishing that the relocation will serve the best interest
17 of the child as shown under the factors set forth in
18 subsection (g).
19 (2) Each party has the burden of establishing the
20 integrity of that party's motives in either seeking the
21 relocation or seeking to prevent the relocation.
22 (i) Failure to provide reasonable notice.--The court may
23 consider a failure to provide reasonable notice of a proposed
24 relocation as:
25 (1) a factor in making a determination regarding the
26 relocation;
27 (2) a factor in determining whether custody or
28 visitation rights should be modified;
29 (3) a basis for ordering the return of the child to the
30 nonrelocating party if the relocation has occurred without
20070S0074B0103 - 32 -
1 reasonable notice;
2 (4) sufficient cause to order the party proposing the
3 relocation to pay reasonable expenses and counsel fees
4 incurred by the party objecting to the relocation; and
5 (5) a ground for contempt and the imposition of
6 sanctions against the party proposing the relocation.
7 (j) Effect of relocation prior to hearing.--If a party
8 relocates with the child prior to a full expedited hearing, the
9 court shall not confer any presumption in favor of the
10 relocation.
11 § 5338. Modification of existing order.
12 (a) Best interest of the child.--Upon petition, a court may
13 modify a custody or visitation order to serve the best interest
14 of the child.
15 (b) Applicability.--This section shall apply to any custody
16 or visitation order entered by a court of this Commonwealth or
17 any other state subject to the jurisdictional requirements set
18 forth in Chapter 54 (relating to uniform child custody
19 jurisdiction and enforcement).
20 § 5339. Award of counsel fees, costs and expenses.
21 Under this chapter, a court may award reasonable interim or
22 final counsel fees, costs and expenses to a party if the court
23 finds that the conduct of another party was obdurate, vexatious,
24 repetitive or in bad faith.
25 § 5340. Court-appointed child custody health care or behavioral
26 health practitioners.
27 No party to a child custody matter in which the court has
28 appointed a licensed health care or behavioral health
29 practitioner to assist the court by conducting an examination or
30 evaluation of the parties involved or making a recommendation
20070S0074B0103 - 33 -
1 concerning a child custody agreement or order may be permitted
2 to file a complaint against the practitioner with the
3 practitioner's State licensing board prior to the final
4 agreement or order being issued and for 60 days thereafter. As
5 used in this section, "licensed health care or behavioral health
6 practitioner" means a person who is licensed, certified,
7 accredited or otherwise regulated by the Commonwealth to provide
8 health care or behavioral health services.
9 Section 4. Section 1904(b), (c) and (h) of Title 42 are
10 amended to read:
11 § 1904. Availability of criminal charge information in child
12 custody proceedings.
13 * * *
14 (b) Criminal charges enumerated.--The criminal charge
15 information that shall be available on the information system
16 shall be limited to the offenses listed in 23 Pa.C.S. §
17 [5303(b.1)(2) (relating to award of custody, partial custody or
18 visitation)] 5329(a) (relating to consideration of criminal
19 conviction).
20 (c) Application for access to criminal charge information.--
21 To obtain information about charges covered in 23 Pa.C.S. §
22 [5303(b.1)(2)] 5329(a), a parent who has been awarded custody,
23 partial custody or visitation or who is a party to a custody
24 proceeding must file an application for access to the
25 information with the office of the prothonotary in the county
26 where the proceeding or order was filed.
27 (1) A person who knowingly gives false information with
28 the intent to gain information provided for under this
29 section commits an offense under 18 Pa.C.S. § 4904(a)
30 (relating to unsworn falsification to authorities).
20070S0074B0103 - 34 -
1 (2) The application must be filed with the prothonotary
2 by one of the following methods:
3 (i) In person, at the office of the prothonotary, by
4 the parent who is filing the application. The applicant
5 must have a valid form of photoidentification available
6 for the inspection of the prothonotary.
7 (ii) By mailing a notarized application using first
8 class mail.
9 (iii) By including the application with the original
10 complaint, initial response or any other pleading or
11 motion filed with the prothonotary.
12 (3) The Administrative Office shall develop the
13 application for access to the criminal charge information
14 system. The following information shall be included in the
15 application:
16 (i) Docket number of original court filing.
17 (ii) Date of filing.
18 (iii) Date of birth of all children involved in the
19 custody proceeding or order.
20 (iv) A personal access code.
21 (v) A notice to the parent that additional
22 information relating to criminal history record
23 information is available, as provided for in 18 Pa.C.S.
24 Ch. 91 (relating to criminal history record information).
25 (vi) A statement verifying that:
26 (A) the person who is filing for access to the
27 criminal charge information system is the actual
28 person listed on the application;
29 (B) to the best of the applicant's knowledge and
30 belief, all the information included in the
20070S0074B0103 - 35 -
1 application is true and correct; and
2 (C) the applicant is a party to the custody
3 proceeding or order that is listed on the
4 application.
5 (vii) A warning as to the penalty under 18 Pa.C.S. §
6 4904.
7 (viii) Any additional information that it is
8 determined to be necessary to expedite the verification
9 of the application and to provide access to the system,
10 as determined by the Administrative Office.
11 (4) Applications shall be made available through county
12 prothonotaries.
13 * * *
14 (h) Information available to parent.--
15 (1) After applying and qualifying to obtain the criminal
16 charge information provided by the system, a parent may
17 request information by telephone as to whether the other
18 parent has been charged with any offense listed in 23 Pa.C.S.
19 § [5303(b.1)(2)] 5329(a).
20 (2) The parent shall also be entitled to criminal
21 history record information as provided for in 18 Pa.C.S. Ch.
22 91, and the parent shall be informed of the availability.
23 (3) Criminal charge information shall be retained on the
24 system for the period of time as provided for the retention
25 of criminal charges and records under 18 Pa.C.S. Ch. 91 and
26 then only until the youngest child involved in the custody
27 proceeding or order reaches 18 years of age. At no time shall
28 information be retained on the system beyond what is
29 permitted under 18 Pa.C.S. Ch. 91.
30 * * *
20070S0074B0103 - 36 -
1 Section 5. A proceeding under 23 Pa.C.S. Ch. 53 which was
2 commenced before the effective date of this section is governed
3 by the law in effect at the time the proceeding was initiated.
4 Section 6. This act shall take effect in 60 days.
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