PRINTER'S NO. 1161
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
55
Session of
2023
INTRODUCED BY SANTARSIERO, BAKER, HUGHES, FONTANA, COMITTA,
MILLER, CULVER, HAYWOOD, BREWSTER, DILLON, COSTA, PHILLIPS-
HILL, PENNYCUICK, BROWN, BARTOLOTTA, SCHWANK, CAPPELLETTI,
COLLETT, MARTIN AND TARTAGLIONE, OCTOBER 11, 2023
REFERRED TO JUDICIARY, OCTOBER 11, 2023
AN ACT
Amending Titles 23 (Domestic Relations) and 42 (Judiciary and
Judicial Procedure) of the Pennsylvania Consolidated
Statutes, in child custody, further providing for
definitions, for award of custody, for factors to consider
when awarding custody, for consideration of criminal
conviction, for guardian ad litem for child, for counsel for
child and for award of counsel fees, costs and expenses; and,
in Administrative Office of Pennsylvania Courts, providing
for child abuse and domestic abuse education and training
program for judges and court personnel.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. The General Assembly finds and declares as
follows:
(1) The Commonwealth has a duty to protect all children
in this Commonwealth, and all three branches of the State
government play important roles in fulfilling that duty.
(2) Domestic abuse is a pattern of abuse within the
family or household and can include abuse of a partner,
spouse, child or pet.
(3) Although abusers often use physical violence as one
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of the tactics to commit domestic abuse, these tactics are
not necessarily physical or illegal.
(4) These tactics can include verbal, emotional,
psychological and economic abuse, isolation, threats,
controlling behaviors, monitoring, litigation abuse and
threats to seek or demands for custody or joint custody to
pressure the partner to return or punish the partner for
leaving.
(5) The health and safety of all children in this
Commonwealth must be the first priority in all decisions
concerning child custody.
(6) It is the intent of the General Assembly to ensure
that in all cases and controversies before the courts
involving questions of child custody, the health, safety and
welfare of the child are protected and regarded as issues of
paramount importance.
Section 2. The definition of "abuse" in section 5322(a) of
Title 23 of the Pennsylvania Consolidated Statutes is amended
and the subsection is amended by adding definitions 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 follows:
(1) As defined in section 6102 (relating to
definitions). The term includes the crime of stalking
pursuant to 18 Pa.C.S. § 2709.1 (relating to stalking).
(2) The term does not include the justified use of force
in self-protection or for the protection of other persons in
accordance with 18 Pa.C.S. § 505 (relating to use of force in
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self-protection) by a party in response to abuse or domestic
abuse by the other party.
* * *
"Household member." A spouse or an individual who has been a
spouse, an individual living as a spouse or who lived as a
spouse, a parent or child, another individual related by
consanguinity or affinity, a current or former sexual or
intimate partner, an individual who shares biological
parenthood
or any other person who is currently sharing a household with
the child or a party.
* * *
"Nonprofessional supervised physical custody." Custodial
time during which an adult, designated by the court or agreed
upon by the parties, monitors the interaction between the child
and the individual with those rights.
* * *
"Professional supervised physical custody." Custodial time
during which a professional , with education and training on the
dynamics of domestic violence, sexual assault, child abuse,
trauma and the impact of domestic violence on children, oversees
the interaction between the child and the individual with those
custody rights and promotes the safety of the child during the
interaction.
* * *
"Safety of the child." The term includes, but is not limited
to, the physical, emotional and psychological well-being of the
child.
* * *
"Temporary housing instability." A period not to exceed six
months from the date of the last incident of abuse as determined
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by a court.
* * *
Section 3. Sections 5323(e), 5328(a), 5329(a) and 5334(c) of
Title 23 are amended and the sections are amended by adding
subsections to read:
§ 5323. Award of custody.
* * *
(e) Safety conditions.--
(1) After considering the factors under [section 5328(a)
(2)] sections 5328, 5329 (relating to consideration of
criminal conviction), 5329.1 (relating to consideration of
child abuse and involvement with protective services) and
5330 (relating to consideration of criminal charge), if the
court finds [that there is an ongoing] a history of abuse of
the child or a household member by a party or a present risk
of harm to the child or an abused party and awards any form
of custody to a party who committed the abuse or who has a
household member who committed the abuse, the court shall
include in the custody order:
(i) The safety conditions [designed], restrictions
or safeguards as reasonably necessary to protect the
child or the abused party.
(ii) The reason for imposing the safety conditions,
restrictions or safeguards, including an explanation why
the safety conditions, restrictions or safeguards are in
the best interest of the child or the abused party.
(iii) The reasons why unsupervised physical custody
is in the best interest of the child if the court finds
that past abuse was committed by a party.
(2) If supervised contact is ordered, there shall be a
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review of the risk of harm and need for continued supervision
upon petition of the party. The safety conditions,
restrictions or safeguards may include any of the following:
(i) Nonprofessional supervised physical custody.
(ii) Professional supervised physical custody.
(iii) Limitations on the time of day that physical
custody is permitted or on the number of hours of
physical custody and the maximum number of hours of
physical custody permitted per day or per week.
(iv) The appointment of a qualified professional
specializing in programming relating to the history of
abuse or risk of harm to provide batterer's intervention
or harm prevention programming. Batterer's intervention
and harm prevention programming may include programming
designed to rehabilitate the offending individual,
including prioritizing a batterer's intervention or harm
prevention program, if available, or the impacts of
physical, sexual or domestic abuse on the victim. The
court may order an evaluation by the appointed qualified
professional under this paragraph to determine whether
additional programming is necessary.
(v) Limitations on legal custody.
(vi) Any other safety condition, restriction or
safeguard as necessary to ensure the safety of the child
or to protect a household member.
(e.1) Supervised physical custody.-- If a court finds by a
preponderance of the evidence that there is an ongoing risk of
abuse of the child, there shall be a rebuttable presumption that
the court shall only allow supervised physical custody between
the child and the party who poses the risk of abuse. A court may
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find that an indicated report for physical or sexual abuse under
Chapter 63 (relating to child protective services) is a basis
for a finding of abuse under this subsection only after a de
novo review of the circumstances leading to the indicated
report. When awarding supervised physical custody under this
subsection, the court shall favor professional supervised
physical custody. The court may award nonprofessional supervised
physical custody if:
(1) the court determines that professional supervised
physical custody is not available within a reasonable
distance of the parties or the court determines that the
party requiring supervised physical custody is unable to pay
for the professional supervised physical custody; and
(2) the court designates an adult to supervise the
custodial visits who has appeared in person before the court,
the individual executes an affidavit of accountability and
the court makes finding, on the record, that the individual
is capable of promoting the safety of the child.
* * *
§ 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 substantial weighted consideration
to [those] the factors specified under paragraphs (1), (2),
(2.1) and (2.2) 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.]
(1) Which party is more likely to ensure the safety of
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the child.
(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.] which may include past or
current protection from abuse or sexual violence protection
orders where there has been a finding of abuse.
(2.1) The information set forth in section 5329.1(a)
(relating to consideration of child abuse and involvement
with protective services).
(2.2) Violent or assaultive behavior committed by a
party.
(2.3) Which party is more likely to encourage and permit
frequent and continuing contact between the child and another
party if contact is consistent with the safety needs of the
child.
(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, except if changes
are necessary to protect the safety of the child or a party.
(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 developmental stage, maturity and judgment.
(8) The attempts of a [parent] party to turn the child
against the other [parent] party, except in cases of
[domestic violence] abuse where reasonable safety measures
are necessary to protect the safety of the child from harm. A
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party's reasonable concerns for the safety of the child and
the party's reasonable efforts to protect the child shall not
be considered attempts to turn the child against the other
party. A child's deficient or negative relationship with a
party shall not be presumed to be caused by the other party.
(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 or self 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.
(16) Any other relevant factor.
(a.1) Exception.--A factor under subsection (a) shall not be
adversely weighed against a party if the circumstances related
to the factor were in response to abuse or necessary to protect
the child or the abused party from harm and the party alleging
abuse does not pose a risk to the safety of the child at the
time of the custody hearing. Temporary housing instability as a
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result of abuse shall not be considered against the party
alleging abuse.
(a.2) Determination.--No single factor under subsection
(a) shall by itself be determinative in the awarding of custody.
The court shall examine the totality of the circumstances,
giving weighted consideration to the factors that affect the
safety of the child, when issuing a custody order that is in the
best interest of the child.
* * *
§ 5329. Consideration of criminal conviction.
(a) Offenses.--Where a party seeks any form of custody, the
court shall consider whether that party or member of that
party's household has been convicted of or has pleaded guilty or
no contest to any of the offenses in this section or an offense
in another jurisdiction substantially equivalent to any of the
offenses in this section. The court shall consider such conduct
and determine that the party does not pose a threat of harm to
the child before making any order of custody to that party when
considering the following offenses:
18 Pa.C.S. Ch. 25 (relating to criminal homicide).
18 Pa.C.S. § 2701 (relating to simple assault).
18 Pa.C.S. § 2702 (relating to aggravated assault).
18 Pa.C.S. § 2705 (relating to recklessly endangering another
person).
18 Pa.C.S. § 2706 (relating to terroristic threats).
18 Pa.C.S. § 2709.1 (relating to stalking).
18 Pa.C.S. § 2718 (relating to strangulation).
18 Pa.C.S. § 2901 (relating to kidnapping).
18 Pa.C.S. § 2902 (relating to unlawful restraint).
18 Pa.C.S. § 2903 (relating to false imprisonment).
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18 Pa.C.S. § 2904 (relating to interference with custody of
children).
18 Pa.C.S. § 2910 (relating to luring a child into a motor
vehicle or structure).
18 Pa.C.S. Ch. 30 (relating to human trafficking).
18 Pa.C.S. § 3121 (relating to rape).
18 Pa.C.S. § 3122.1 (relating to statutory sexual assault).
18 Pa.C.S. § 3123 (relating to involuntary deviate sexual
intercourse).
18 Pa.C.S. § 3124.1 (relating to sexual assault).
18 Pa.C.S. § 3125 (relating to aggravated indecent assault).
18 Pa.C.S. § 3126 (relating to indecent assault).
18 Pa.C.S. § 3127 (relating to indecent exposure).
18 Pa.C.S. § 3129 (relating to sexual intercourse with
animal).
18 Pa.C.S. § 3130 (relating to conduct relating to sex
offenders).
18 Pa.C.S. § 3301 (relating to arson and related offenses).
18 Pa.C.S. § 4302 (relating to incest).
18 Pa.C.S. § 4303 (relating to concealing death of child).
18 Pa.C.S. § 4304 (relating to endangering welfare of
children).
18 Pa.C.S. § 4305 (relating to dealing in infant children).
18 Pa.C.S. § 5533 (relating to cruelty to animal).
18 Pa.C.S. § 5534 (relating to aggravated cruelty to animal).
18 Pa.C.S. § 5543 (relating to animal fighting).
18 Pa.C.S. § 5544 (relating to possession of animal fighting
paraphernalia).
18 Pa.C.S. § 5902(b) or (b.1) (relating to prostitution and
related offenses).
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18 Pa.C.S. § 5903(c) or (d) (relating to obscene and other
sexual materials and performances).
18 Pa.C.S. § 6301 (relating to corruption of minors).
18 Pa.C.S. § 6312 (relating to sexual abuse of children).
18 Pa.C.S. § 6318 (relating to unlawful contact with minor).
18 Pa.C.S. § 6320 (relating to sexual exploitation of
children).
Section 6114 (relating to contempt for violation of order or
agreement).
The former 75 Pa.C.S. § 3731 (relating to driving under
influence of alcohol or controlled substance).
75 Pa.C.S. Ch. 38 (relating to driving after imbibing alcohol
or utilizing drugs).
Section 13(a)(1) of the act of April 14, 1972 (P.L.233,
No.64), known as The Controlled Substance, Drug, Device and
Cosmetic Act, to the extent that it prohibits the manufacture,
sale or delivery, holding, offering for sale or possession of
any controlled substance or other drug or device.
(a.1) Determination.--A criminal conviction specified under
subsection (a) shall not by itself be determinative in the
awarding of custody. The court shall examine the totality of the
circumstances when issuing a custody order that is in the best
interest of the child.
* * *
§ 5334. Guardian ad litem for child.
* * *
(c) Abuse.--If substantial allegations of abuse [of the
child] are made, the court [shall] may appoint a guardian ad
litem for the child if:
(1) counsel for the child is not appointed under section
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5335 (relating to counsel for child); [or] and
(2) the court is satisfied that the relevant information
will be presented to the court only with such appointment.
* * *
(f) Education and training.--A court appointing a guardian
ad litem under this section shall make reasonable efforts to
appoint a guardian ad litem who received evidence-based
education and training relating to child abuse, including child
sexual abuse, domestic abuse education and the effect of child
sexual abuse and domestic abuse on children.
Section 4. Sections 5335(b) and 5339 of Title 23 are amended
to read:
§ 5335. Counsel for child.
* * *
(b) Abuse.--Substantial allegations of abuse [of the child]
constitute a reasonable basis for appointing counsel for the
child.
* * *
§ 5339. Award of counsel fees, costs and expenses.
Under this chapter, a court may award reasonable interim or
final counsel fees, costs and expenses to a party if the court
finds that the conduct of another party was obdurate, vexatious,
repetitive or in bad faith. This section may not apply if that
party engaged the judicial process in good faith to protect the
child from harm.
Section 5. Title 42 is amended by adding a section to read:
§ 1908. Child abuse and domestic abuse education and training
program for judges and court personnel.
(a) Program.--The Administrative Office of Pennsylvania
Courts may develop and implement an ongoing education and
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training program for judges, magisterial district judges and
relevant court personnel, including guardians ad litem, counsel
for children, masters and mediators regarding child abuse. The
education and training program shall include all aspects of the
maltreatment of children, including all of the following:
(1) Sexual abuse.
(2) Physical abuse.
(3) Psychological and emotional abuse.
(4) Implicit and explicit bias.
(5) Trauma and neglect.
(6) The impact of child abuse and domestic violence on
children.
(b) Best practices.--The education and training program
under subsection (a) shall include the latest best practices
from evidence-based, peer-reviewed research by recognized
experts, including Statewide family violence experts, in the
types of child abuse specified under subsection (a). The
Administrative Office of Pennsylvania Courts shall design the
education and training program under subsection (a) to educate
and train relevant court personnel on all of the factors listed
under 23 Pa.C.S. § 5328(a) (relating to factors to consider when
awarding custody) and improve the ability of courts to make
appropriate custody decisions that are in the best interest of
the child, including education and training regarding the impact
of child abuse, domestic abuse and trauma on a victim,
specifically a child, and situations when one party attempts to
turn a child against another party.
(c) Federal grant funding.--The Administrative Office of
Pennsylvania Courts shall design the education and training
program under subsection (a) to conform with the requirements
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for increased Federal grant funding under 34 U.S.C. § 10446(k)
(relating to State grants).
Section 6. This act shall take effect in 120 days.
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