PRIOR PRINTER'S NOS. 64, 1108 PRINTER'S NO. 1150
No. 74 Session of 2005
INTRODUCED BY GREENLEAF, RAFFERTY, WONDERLING, KITCHEN, TARTAGLIONE AND BOSCOLA, JANUARY 31, 2005
AS AMENDED ON SECOND CONSIDERATION, SEPTEMBER 27, 2005
AN ACT 1 Amending Title TITLES 23 (Domestic Relations) AND 42 (JUDICIARY <-- 2 AND 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 and Chapter 53 of Title 23 of the <-- 9 Pennsylvania Consolidated Statutes are repealed. 10 SECTION 1. SECTION 4346, CHAPTER 53 AND SUBCHAPTER A <-- 11 HEADINGS AND SECTIONS 5301, 5302, 5303, 5304, 5305, 5306, 5307, 12 5308, 5309, 5310, 5311, 5312, 5313 AND 5314 OF TITLE 23 OF THE 13 PENNSYLVANIA CONSOLIDATED STATUTES ARE AMENDED TO READ: 14 [§ 4346. CONTEMPT FOR NONCOMPLIANCE WITH VISITATION OR PARTIAL 15 CUSTODY ORDER. 16 (A) GENERAL RULE.--A PARTY WHO WILLFULLY FAILS TO COMPLY 17 WITH ANY VISITATION OR PARTIAL CUSTODY ORDER MAY, AS PRESCRIBED 18 BY GENERAL RULE, BE ADJUDGED IN CONTEMPT. CONTEMPT SHALL BE 19 PUNISHABLE BY ANY ONE OR MORE OF THE FOLLOWING:
1 (1) IMPRISONMENT FOR A PERIOD NOT TO EXCEED SIX MONTHS. 2 (2) A FINE NOT TO EXCEED $500. 3 (3) PROBATION FOR A PERIOD NOT TO EXCEED SIX MONTHS. 4 (4) AN ORDER FOR NONRENEWAL, SUSPENSION OR DENIAL OF 5 OPERATING PRIVILEGE PURSUANT TO SECTION 4355 (RELATING TO 6 DENIAL OR SUSPENSION OF LICENSES). 7 (B) CONDITION FOR RELEASE.--AN ORDER COMMITTING A PERSON TO 8 JAIL UNDER THIS SECTION SHALL SPECIFY THE CONDITION WHICH, WHEN 9 FULFILLED, WILL RESULT IN THE RELEASE OF THE OBLIGOR. 10 CHAPTER 53 11 CUSTODY 12 SUBCHAPTER A 13 GENERAL PROVISIONS 14 § 5301. DECLARATION OF POLICY. 15 THE GENERAL ASSEMBLY DECLARES THAT IT IS THE PUBLIC POLICY OF 16 THIS COMMONWEALTH, WHEN IN THE BEST INTEREST OF THE CHILD, TO 17 ASSURE A REASONABLE AND CONTINUING CONTACT OF THE CHILD WITH 18 BOTH PARENTS AFTER A SEPARATION OR DISSOLUTION OF THE MARRIAGE 19 AND THE SHARING OF THE RIGHTS AND RESPONSIBILITIES OF CHILD 20 REARING BY BOTH PARENTS AND CONTINUING CONTACT OF THE CHILD OR 21 CHILDREN WITH GRANDPARENTS WHEN A PARENT IS DECEASED, DIVORCED 22 OR SEPARATED. 23 § 5302. DEFINITIONS. 24 THE FOLLOWING WORDS AND PHRASES WHEN USED IN THIS SUBCHAPTER 25 SHALL HAVE THE MEANINGS GIVEN TO THEM IN THIS SECTION UNLESS THE 26 CONTEXT CLEARLY INDICATES OTHERWISE: 27 "CHILD." ANY UNEMANCIPATED PERSON UNDER 18 YEARS OF AGE. 28 "LEGAL CUSTODY." THE LEGAL RIGHT TO MAKE MAJOR DECISIONS 29 AFFECTING THE BEST INTEREST OF A MINOR CHILD, INCLUDING, BUT NOT 30 LIMITED TO, MEDICAL, RELIGIOUS AND EDUCATIONAL DECISIONS. 20050S0074B1150 - 2 -
1 "PARTIAL CUSTODY." THE RIGHT TO TAKE POSSESSION OF A CHILD 2 AWAY FROM THE CUSTODIAL PARENT FOR A CERTAIN PERIOD OF TIME. 3 "PHYSICAL CUSTODY." THE ACTUAL PHYSICAL POSSESSION AND 4 CONTROL OF A CHILD. 5 "SHARED CUSTODY." AN ORDER AWARDING SHARED LEGAL OR SHARED 6 PHYSICAL CUSTODY, OR BOTH, OF A CHILD IN SUCH A WAY AS TO ASSURE 7 THE CHILD OF FREQUENT AND CONTINUING CONTACT WITH AND PHYSICAL 8 ACCESS TO BOTH PARENTS. 9 "VISITATION." THE RIGHT TO VISIT A CHILD. THE TERM DOES NOT 10 INCLUDE THE RIGHT TO REMOVE A CHILD FROM THE CUSTODIAL PARENT'S 11 CONTROL. 12 § 5303. AWARD OF CUSTODY, PARTIAL CUSTODY OR VISITATION. 13 (A) GENERAL RULE.-- 14 (1) IN MAKING AN ORDER FOR CUSTODY OR PARTIAL CUSTODY, 15 THE COURT SHALL CONSIDER THE PREFERENCE OF THE CHILD AS WELL 16 AS ANY OTHER FACTOR WHICH LEGITIMATELY IMPACTS THE CHILD'S 17 PHYSICAL, INTELLECTUAL AND EMOTIONAL WELL-BEING. 18 (2) IN MAKING AN ORDER FOR CUSTODY, PARTIAL CUSTODY OR 19 VISITATION TO EITHER PARENT, THE COURT SHALL CONSIDER, AMONG 20 OTHER FACTORS, WHICH PARENT IS MORE LIKELY TO ENCOURAGE, 21 PERMIT AND ALLOW FREQUENT AND CONTINUING CONTACT AND PHYSICAL 22 ACCESS BETWEEN THE NONCUSTODIAL PARENT AND THE CHILD. 23 (3) THE COURT SHALL CONSIDER EACH PARENT AND ADULT 24 HOUSEHOLD MEMBER'S PRESENT AND PAST VIOLENT OR ABUSIVE 25 CONDUCT WHICH MAY INCLUDE, BUT IS NOT LIMITED TO, ABUSIVE 26 CONDUCT AS DEFINED UNDER THE ACT OF OCTOBER 7, 1976 27 (P.L.1090, NO.218), KNOWN AS THE PROTECTION FROM ABUSE ACT. 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 20050S0074B1150 - 3 -
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 20050S0074B1150 - 4 -
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 20050S0074B1150 - 5 -
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 20050S0074B1150 - 6 -
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 IS IN THE BEST INTEREST OF THE CHILD. 5 § 5304. AWARD OF SHARED CUSTODY. 6 AN ORDER FOR SHARED CUSTODY MAY BE AWARDED BY THE COURT WHEN 7 IT IS IN THE BEST INTEREST OF THE CHILD: 8 (1) UPON APPLICATION OF ONE OR BOTH PARENTS; 9 (2) WHEN THE PARTIES HAVE AGREED TO AN AWARD OF SHARED 10 CUSTODY; OR 11 (3) IN THE DISCRETION OF THE COURT. 12 § 5305. COUNSELING. 13 (A) GENERAL RULE.--THE COURT MAY REQUIRE THE PARENTS TO 14 ATTEND COUNSELING SESSIONS AND MAY CONSIDER THE RECOMMENDATIONS 15 OF THE COUNSELORS PRIOR TO AWARDING SOLE OR SHARED CUSTODY. 16 THESE COUNSELING SESSIONS MAY INCLUDE, BUT SHALL NOT BE LIMITED 17 TO, DISCUSSIONS OF THE RESPONSIBILITIES AND DECISIONMAKING 18 ARRANGEMENTS INVOLVED IN BOTH SOLE AND SHARED CUSTODY AND THE 19 SUITABILITY OF EACH ARRANGEMENT TO THE CAPABILITIES OF EACH 20 PARENT OR BOTH PARENTS. 21 (B) TEMPORARY CUSTODY.--THE COURT MAY TEMPORARILY AWARD 22 CUSTODY TO EITHER PARENT OR BOTH PARENTS PENDING RESOLUTION OF 23 ANY COUNSELING. 24 (C) REPORT.--THE COURT MAY REQUIRE THE COUNSELOR TO SUBMIT A 25 REPORT IF THE COURT DESIRES AND WITHIN SUCH REASONABLE TIME AS 26 THE COURT DETERMINES. 27 § 5306. PLAN FOR IMPLEMENTATION OF CUSTODY ORDER. 28 THE COURT, IN ITS DISCRETION, MAY REQUIRE THE PARENTS TO 29 SUBMIT TO THE COURT A PLAN FOR THE IMPLEMENTATION OF ANY CUSTODY 30 ORDER MADE UNDER THIS SUBCHAPTER. UPON THE REQUEST OF EITHER 20050S0074B1150 - 7 -
1 PARENT OR THE COURT, THE DOMESTIC RELATIONS SECTION OF THE COURT 2 OR OTHER PARTY OR AGENCY APPROVED BY THE COURT SHALL ASSIST IN 3 THE FORMULATION AND IMPLEMENTATION OF THE PLAN. 4 § 5307. DENIAL OF CUSTODY UNDER AGREEMENT OR PLAN. 5 WHEN THE COURT DECLINES TO ENTER AN ORDER AWARDING CUSTODY 6 EITHER AS AGREED TO BY THE PARENTS OR UNDER THE PLAN DEVELOPED 7 BY THE PARENTS, THE COURT SHALL STATE ITS REASONS FOR DENIAL ON 8 THE RECORD. 9 § 5308. REMOVAL OF PARTY OR CHILD FROM JURISDICTION. 10 IF EITHER PARTY INTENDS TO OR DOES REMOVE HIMSELF OR THE 11 CHILD FROM THIS COMMONWEALTH AFTER A CUSTODY ORDER HAS BEEN 12 MADE, THE COURT, ON ITS OWN MOTION OR UPON MOTION OF EITHER 13 PARTY, MAY REVIEW THE EXISTING CUSTODY ORDER. 14 § 5309. ACCESS TO RECORDS AND INFORMATION. 15 (A) GENERAL RULE.--EXCEPT AS PROVIDED IN SUBSECTIONS (B) AND 16 (C), EACH PARENT SHALL BE PROVIDED ACCESS TO ALL THE MEDICAL, 17 DENTAL, RELIGIOUS OR SCHOOL RECORDS OF THE CHILD, THE RESIDENCE 18 ADDRESS OF THE CHILD AND OF THE OTHER PARENT AND ANY OTHER 19 INFORMATION THAT THE COURT DEEMS NECESSARY. 20 (B) COURT DETERMINATION NOT TO RELEASE INFORMATION.--THE 21 COURT, IN ITS DISCRETION, MAY DETERMINE NOT TO RELEASE ANY PART 22 OR PARTS OF THE INFORMATION IN THIS SECTION BUT IN DOING SO MUST 23 STATE ITS REASON FOR DENIAL ON THE RECORD. 24 (C) NONDISCLOSURE OF CONFIDENTIAL INFORMATION.--THE COURT 25 SHALL NOT ORDER THAT THE ADDRESS OF A SHELTER FOR BATTERED 26 SPOUSES AND THEIR DEPENDENT CHILDREN OR OTHERWISE CONFIDENTIAL 27 INFORMATION OF A DOMESTIC VIOLENCE COUNSELOR BE DISCLOSED TO THE 28 DEFENDANT OR HIS COUNSEL OR ANY PARTY TO THE PROCEEDINGS. 29 § 5310. MODIFICATION OF EXISTING CUSTODY ORDERS. 30 ANY ORDER FOR THE CUSTODY OF THE CHILD OF A MARRIAGE ENTERED 20050S0074B1150 - 8 -
1 BY A COURT IN THIS COMMONWEALTH OR ANY STATE MAY, SUBJECT TO THE 2 JURISDICTIONAL REQUIREMENTS SET FORTH IN CHAPTER 54 (RELATING TO 3 UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT), BE MODIFIED 4 AT ANY TIME TO AN ORDER OF SHARED CUSTODY IN ACCORDANCE WITH 5 THIS SUBCHAPTER. 6 § 5311. WHEN PARENT DECEASED. 7 IF A PARENT OF AN UNMARRIED CHILD IS DECEASED, THE PARENTS OR 8 GRANDPARENTS OF THE DECEASED PARENT MAY BE GRANTED REASONABLE 9 PARTIAL CUSTODY OR VISITATION RIGHTS, OR BOTH, TO THE UNMARRIED 10 CHILD BY THE COURT UPON A FINDING THAT PARTIAL CUSTODY OR 11 VISITATION RIGHTS, OR BOTH, WOULD BE IN THE BEST INTEREST OF THE 12 CHILD AND WOULD NOT INTERFERE WITH THE PARENT-CHILD 13 RELATIONSHIP. THE COURT SHALL CONSIDER THE AMOUNT OF PERSONAL 14 CONTACT BETWEEN THE PARENTS OR GRANDPARENTS OF THE DECEASED 15 PARENT AND THE CHILD PRIOR TO THE APPLICATION. 16 § 5312. WHEN PARENTS' MARRIAGE IS DISSOLVED OR PARENTS ARE 17 SEPARATED. 18 IN ALL PROCEEDINGS FOR DISSOLUTION, SUBSEQUENT TO THE 19 COMMENCEMENT OF THE PROCEEDING AND CONTINUING THEREAFTER OR WHEN 20 PARENTS HAVE BEEN SEPARATED FOR SIX MONTHS OR MORE, THE COURT 21 MAY, UPON APPLICATION OF THE PARENT OR GRANDPARENT OF A PARTY, 22 GRANT REASONABLE PARTIAL CUSTODY OR VISITATION RIGHTS, OR BOTH, 23 TO THE UNMARRIED CHILD IF IT FINDS THAT VISITATION RIGHTS OR 24 PARTIAL CUSTODY, OR BOTH, WOULD BE IN THE BEST INTEREST OF THE 25 CHILD AND WOULD NOT INTERFERE WITH THE PARENT-CHILD 26 RELATIONSHIP. THE COURT SHALL CONSIDER THE AMOUNT OF PERSONAL 27 CONTACT BETWEEN THE PARENTS OR GRANDPARENTS OF THE PARTY AND THE 28 CHILD PRIOR TO THE APPLICATION. 29 § 5313. WHEN GRANDPARENTS MAY PETITION. 30 (A) PARTIAL CUSTODY AND VISITATION.--IF AN UNMARRIED CHILD 20050S0074B1150 - 9 -
1 HAS RESIDED WITH HIS GRANDPARENTS OR GREAT-GRANDPARENTS FOR A 2 PERIOD OF 12 MONTHS OR MORE AND IS SUBSEQUENTLY REMOVED FROM THE 3 HOME BY HIS PARENTS, THE GRANDPARENTS OR GREAT-GRANDPARENTS MAY 4 PETITION THE COURT FOR AN ORDER GRANTING THEM REASONABLE PARTIAL 5 CUSTODY OR VISITATION RIGHTS, OR BOTH, TO THE CHILD. THE COURT 6 SHALL GRANT THE PETITION IF IT FINDS THAT VISITATION RIGHTS 7 WOULD BE IN THE BEST INTEREST OF THE CHILD AND WOULD NOT 8 INTERFERE WITH THE PARENT-CHILD RELATIONSHIP. 9 (B) PHYSICAL AND LEGAL CUSTODY.--A GRANDPARENT HAS STANDING 10 TO BRING A PETITION FOR PHYSICAL AND LEGAL CUSTODY OF A 11 GRANDCHILD. IF IT IS IN THE BEST INTEREST OF THE CHILD NOT TO BE 12 IN THE CUSTODY OF EITHER PARENT AND IF IT IS IN THE BEST 13 INTEREST OF THE CHILD TO BE IN THE CUSTODY OF THE GRANDPARENT, 14 THE COURT MAY AWARD PHYSICAL AND LEGAL CUSTODY TO THE 15 GRANDPARENT. THIS SUBSECTION APPLIES TO A GRANDPARENT: 16 (1) WHO HAS GENUINE CARE AND CONCERN FOR THE CHILD; 17 (2) WHOSE RELATIONSHIP WITH THE CHILD BEGAN WITH THE 18 CONSENT OF A PARENT OF THE CHILD OR PURSUANT TO AN ORDER OF 19 COURT; AND 20 (3) WHO FOR 12 MONTHS HAS ASSUMED THE ROLE AND 21 RESPONSIBILITIES OF THE CHILD'S PARENT, PROVIDING FOR THE 22 PHYSICAL, EMOTIONAL AND SOCIAL NEEDS OF THE CHILD, OR WHO 23 ASSUMES THE RESPONSIBILITY FOR A CHILD WHO HAS BEEN 24 DETERMINED TO BE A DEPENDENT CHILD PURSUANT TO 42 PA.C.S. CH. 25 63 (RELATING TO JUVENILE MATTERS) OR WHO ASSUMES OR DEEMS IT 26 NECESSARY TO ASSUME RESPONSIBILITY FOR A CHILD WHO IS 27 SUBSTANTIALLY AT RISK DUE TO PARENTAL ABUSE, NEGLECT, DRUG OR 28 ALCOHOL ABUSE OR MENTAL ILLNESS. THE COURT MAY ISSUE A 29 TEMPORARY ORDER PURSUANT TO THIS SECTION. 30 § 5314. EXCEPTION FOR ADOPTED CHILDREN. 20050S0074B1150 - 10 -
1 SECTIONS 5311 (RELATING TO WHEN PARENT DECEASED), 5312 2 (RELATING TO WHEN PARENTS' MARRIAGE IS DISSOLVED OR PARENTS ARE 3 SEPARATED) AND 5313 (RELATING TO WHEN CHILD HAS RESIDED WITH 4 GRANDPARENTS) SHALL NOT APPLY IF THE CHILD HAS BEEN ADOPTED BY A 5 PERSON OTHER THAN A STEPPARENT OR GRANDPARENT. ANY VISITATION 6 RIGHTS GRANTED PURSUANT TO THIS SECTION PRIOR TO THE ADOPTION OF 7 THE CHILD SHALL BE AUTOMATICALLY TERMINATED UPON SUCH ADOPTION.] 8 Section 2. Title 23 is amended by adding a chapter to read: 9 CHAPTER 53 10 CHILD CUSTODY 11 Sec. 12 5321. Scope. 13 5322. Definitions. 14 5323. Award of custody or visitation. 15 5324. Standing for any form of physical custody, legal 16 custody or visitation. 17 5325. Standing for partial physical custody and visitation. 18 5326. Effect of adoption. 19 5327. Presumption in cases concerning primary physical 20 custody. 21 5328. Factors to consider when awarding custody. 22 5329. Consideration of criminal conviction. 23 5330. Consideration of criminal charge. 24 5331. Parenting plan. 25 5332. Informational programs. 26 5333. Counseling as part of order. 27 5334. Guardian ad litem for child. 28 5335. Counsel for child. 29 5336. Access to records and information. 30 5337. Relocation. 20050S0074B1150 - 11 -
1 5338. Modification of existing order. 2 5339. Award of counsel fees, costs and expenses. 3 § 5321. Scope. 4 This chapter applies to disputes relating to child custody 5 and visitation matters. 6 § 5322. Definitions. 7 The following words and phrases when used in this chapter 8 shall have the meanings given to them in this section unless the 9 context clearly indicates otherwise: 10 "Abuse." As defined in section 6102 (relating to 11 definitions). 12 "Adult." An individual 18 years of age or older. 13 "Agency." Any organization, society, institution or other 14 entity, including the county children and youth social service 15 agency or court facility, which provides for the care of the 16 child. 17 "Child." An unemancipated individual under 18 years of age. 18 "Legal custody." The right to make major decisions on behalf 19 of the child, including, but not limited to, medical, religious 20 and educational decisions. 21 "Parental duties." Includes meeting the physical, emotional 22 and social needs of the child. 23 "Partial physical custody." The right to assume physical 24 custody of the child for less than a majority of the time. 25 "Physical custody." The actual physical possession and 26 control of a child. 27 "Primary physical custody." The right to assume physical 28 custody of the child for the majority of time. 29 "Relocation." A change in a residence of the child which 30 significantly impairs the ability of a nonrelocating party to 20050S0074B1150 - 12 -
1 exercise custodial rights. 2 "Shared legal custody." The right of more than one 3 individual to legal custody of the child. 4 "Shared physical custody." The right of more than one 5 individual to assume physical custody of the child, each having 6 approximately the same amount of physical custodial time with 7 the child. 8 "Sole legal custody." The right of one individual to 9 exclusive legal custody of the child. 10 "Sole physical custody." The right of one individual to 11 exclusive physical custody of the child. 12 "Supervised visitation." Visitation in which an agency or an 13 adult designated by the court or agreed upon by the parties 14 monitors the interaction between the child and the individual 15 with visitation rights. 16 "Visitation." The right to spend time with the child but not 17 the right to remove the child from the care or control of a 18 custodial party. 19 § 5323. Award of custody or visitation. 20 (a) Types of award.--After considering the factors set forth 21 in section 5328 (relating to factors to consider when awarding 22 custody), the court may award any of the following types of 23 custody and visitation if it is in the best interest of the 24 child: 25 (1) Sole legal custody. 26 (2) Shared legal custody. 27 (3) Sole physical custody. 28 (4) Shared physical custody. 29 (5) Primary physical custody. 30 (6) Partial physical custody. 20050S0074B1150 - 13 -
1 (7) Visitation. 2 (8) Supervised visitation. 3 (b) Interim award.--The court may issue an interim award of 4 custody or visitation to a party who has standing under section 5 5324 (relating to standing for any form of physical custody, 6 legal custody or visitation) or 5325 (relating to standing for 7 partial physical custody and visitation), in the manner 8 prescribed by the Pennsylvania Rules of Civil Procedure 9 governing special relief in custody and visitation matters. 10 (c) Notice.--Any custody or visitation order shall include 11 notice of a party's obligations under section 5337 (relating to 12 relocation). 13 (d) Enforcement.--In awarding custody or visitation, the 14 court shall specify the terms and conditions of the award in 15 sufficient detail to enable a party to enforce the court order 16 through law enforcement authorities. 17 (e) Contempt for noncompliance with any custody or 18 visitation order.-- 19 (1) A party who willfully fails to comply with any 20 custody or visitation order may, as prescribed by general 21 rule, be adjudged in contempt. Contempt shall be punishable 22 by any one or more of the following: 23 (i) Imprisonment for a period of not more than six 24 months. 25 (ii) A fine of not more than $500. 26 (iii) Probation for a period of not more than six 27 months. 28 (iv) An order for nonrenewal, suspension or denial 29 of operating privilege pursuant to section 4355 (relating 30 to denial or suspension of licenses). 20050S0074B1150 - 14 -
1 (v) Counsel fees and costs. 2 (2) An order committing an individual to jail under this 3 section shall specify the condition which, when fulfilled, 4 will result in the release of that individual. 5 (f) Parties in same residence.--Parties living separate and 6 apart in the same residence may seek relief under this chapter, 7 but any custody or visitation order made under such a 8 circumstance shall be effective only upon: 9 (1) one party physically vacating the residence; or 10 (2) an order awarding one party exclusive possession of 11 the residence. 12 § 5324. Standing for any form of physical custody, legal 13 custody or visitation. 14 The following individuals may file an action under this 15 chapter for any form of physical custody, legal custody or 16 visitation: 17 (1) A parent of the child. 18 (2) A person who stands in loco parentis to the child. 19 (3) A grandparent of the child who is not in loco 20 parentis to the child: 21 (i) whose relationship with the child began either 22 with the consent of a parent of the child or pursuant to 23 a court order; 24 (ii) who assumes or is willing to assume 25 responsibility for the child; and 26 (iii) when one of the following conditions is met: 27 (A) the child has been determined to be a 28 dependent child pursuant to 42 Pa.C.S. Ch. 63 29 (relating to juvenile matters); 30 (B) the child is substantially at risk due to 20050S0074B1150 - 15 -
1 parental abuse, neglect, drug or alcohol abuse or 2 incapacity; or 3 (C) the child has for a period of at least 12 4 consecutive months resided with the grandparent, 5 excluding brief temporary absences of the child from 6 the home, and is removed from the home by the 7 parents, in which case the action must be filed 8 within six months after the removal of the child from 9 the home. 10 § 5325. Standing for partial physical custody and visitation. 11 In addition to situations set forth in section 5324 (relating 12 to standing for any form of physical custody, legal custody or 13 visitation), grandparents and great-grandparents may file an 14 action under this chapter for partial physical custody or 15 visitation in the following situations: 16 (1) where the parent of the child is deceased, a parent 17 or grandparent of the deceased parent may file an action 18 under this section; 19 (2) where the parents of the child have been separated 20 for a period of at least six months or have commenced and 21 continued a proceeding to dissolve their marriage; or 22 (3) when the child has for a period of at least 12 23 consecutive months resided with the grandparent or great- 24 grandparent, excluding brief temporary absences of the child 25 from the home, and is removed from the home by the parents, 26 an action must be filed within six months after the removal 27 of the child from the home. 28 § 5326. Effect of adoption. 29 Any rights to seek physical custody, legal custody or 30 visitation rights and any custody or visitation rights that have 20050S0074B1150 - 16 -
1 been granted under section 5324 (relating to standing for any 2 form of physical custody, legal custody or visitation) or 5325 3 (relating to standing for partial physical custody and 4 visitation) to a grandparent or great-grandparent prior to the 5 adoption of the child by an individual other than a stepparent, 6 grandparent or great-grandparent shall be automatically 7 terminated upon such adoption. 8 § 5327. Presumption in cases concerning primary physical 9 custody. 10 (a) Between parents.--In any action regarding the custody of 11 the child between the parents of the child, there shall be no 12 presumption that custody should be awarded to a particular 13 parent. 14 (b) Between a parent and third party.--In any action 15 regarding the custody of the child between a parent of the child 16 and a nonparent, there shall be a presumption that custody shall 17 be awarded to the parent. The presumption in favor of the parent 18 may be rebutted by clear and convincing evidence. 19 (c) Between third parties.--In any action regarding the 20 custody of the child between a nonparent and another nonparent, 21 there shall be no presumption that custody should be awarded to 22 a particular party. 23 § 5328. Factors to consider when awarding custody. 24 (a) Factors.--In ordering any form of custody or visitation, 25 the court shall determine the best interest of the child by 26 considering all relevant factors, including the following: 27 (1) Which party is more likely to encourage and permit 28 frequent and continuing contact between the child and another 29 party. 30 (2) The parental duties performed by each party on 20050S0074B1150 - 17 -
1 behalf of the child. 2 (3) The need for stability and continuity in the child's 3 education, family life and community life. 4 (4) The availability of extended family. 5 (5) The child's sibling relationships. 6 (6) The present and past abuse committed by a party or 7 member of the party's household. 8 (7) The well-reasoned preference of the child, based on 9 the child's maturity and judgment. 10 (8) The attempts of a parent to turn the child against 11 the other parent. 12 (9) Which party is more likely to maintain a loving, 13 stable, consistent and nurturing relationship with the child 14 adequate for the child's emotional needs. 15 (10) Which party is more likely to attend to the daily 16 physical, emotional, developmental, educational and special 17 needs of the child. 18 (11) The proximity of the residences of the parties. 19 (12) Each party's availability to care for the child or 20 ability to make appropriate child care arrangements. 21 (13) The level of conflict between the parties and the 22 willingness and ability of the parties to cooperate with one 23 another. 24 (14) The history of drug or alcohol abuse of a party or 25 member of a party's household. 26 (15) The mental and physical condition of a party or 27 member of a party's household. 28 (16) Any other relevant factor. 29 (b) Grandparents and great-grandparents.-- 30 (1) In ordering partial physical custody or visitation 20050S0074B1150 - 18 -
1 to a party who has standing under section 5325(1) or (2)
2 (relating to standing for partial physical custody and
3 visitation), the court shall consider the following:
4 (i) the amount of personal contact between the child
5 and the party prior to the filing of the action;
6 (ii) whether the award interferes with any parent-
7 child relationship; and
8 (iii) whether the award is in the best interest of
9 the child.
10 (2) In ordering partial physical custody or visitation
11 to a parent's parent or grandparent who has standing under
12 section 5325(3), the court shall consider whether the award:
13 (i) interferes with any parent-child relationship;
14 and
15 (ii) is in the best interest of the child.
16 § 5329. Consideration of criminal conviction.
17 (a) Offenses.--Where a party seeks any form of custody or
18 visitation, the court shall consider whether that party or
19 member of that party's household has been convicted of or has
20 pleaded guilty or no contest to any of the following offenses or
21 an offense in another jurisdiction equivalent to any of the
22 following offenses:
23 (1) 18 Pa.C.S. Ch. 25 (relating to criminal homicide).
24 (2) 18 Pa.C.S. § 2702 (relating to aggravated assault).
25 (3) 18 Pa.C.S. § 2706 (relating to terroristic threats).
26 (4) 18 Pa.C.S. § 2709.1 (relating to stalking).
27 (5) 18 Pa.C.S. § 2901 (relating to kidnapping).
28 (6) 18 Pa.C.S. § 2902 (relating to unlawful restraint).
29 (7) 18 Pa.C.S. § 2903 (relating to false imprisonment).
30 (8) 18 Pa.C.S. § 3121 (relating to rape). <--
20050S0074B1150 - 19 -
1 (9) 18 Pa.C.S. § 3122.1 (relating to statutory sexual 2 assault). 3 (10) 18 Pa.C.S. § 3123 (relating to involuntary deviate 4 sexual intercourse). 5 (11) 18 Pa.C.S. § 3124.1 (relating to sexual assault). 6 (12) 18 Pa.C.S. § 3125 (relating to aggravated indecent 7 assault). 8 (13) 18 Pa.C.S. § 3126 (relating to indecent assault). 9 (14) 18 Pa.C.S. § 3127 (relating to indecent exposure). 10 (15) 18 Pa.C.S. § 3301 (relating to arson and related 11 offenses). 12 (16) 18 Pa.C.S. § 4302 (relating to incest). 13 (17) 18 Pa.C.S. § 4304 (relating to endangering welfare 14 of children). 15 (18) 18 Pa.C.S. § 5902(b) (relating to prostitution and 16 related offenses). 17 (19) 18 Pa.C.S. § 6312 (relating to sexual abuse of 18 children). 19 (20) 23 Pa.C.S. § 6114 (relating to contempt for 20 violation of order or agreement). 21 (8) 18 PA.C.S. § 2910 (RELATING TO LURING A CHILD INTO A <-- 22 MOTOR VEHICLE). 23 (9) 18 PA.C.S. § 3121 (RELATING TO RAPE). 24 (10) 18 PA.C.S. § 3122.1 (RELATING TO STATUTORY SEXUAL 25 ASSAULT). 26 (11) 18 PA.C.S. § 3123 (RELATING TO INVOLUNTARY DEVIATE 27 SEXUAL INTERCOURSE). 28 (12) 18 PA.C.S. § 3124.1 (RELATING TO SEXUAL ASSAULT). 29 (13) 18 PA.C.S. § 3125 (RELATING TO AGGRAVATED INDECENT 30 ASSAULT). 20050S0074B1150 - 20 -
1 (14) 18 PA.C.S. § 3126 (RELATING TO INDECENT ASSAULT). 2 (15) 18 PA.C.S. § 3127 (RELATING TO INDECENT EXPOSURE). 3 (16) 18 PA.C.S. § 3129 (RELATING TO SEXUAL INTERCOURSE 4 WITH ANIMAL). 5 (17) 18 PA.C.S. § 3301 (RELATING TO ARSON AND RELATED 6 OFFENSES). 7 (18) 18 PA.C.S. § 4302 (RELATING TO INCEST). 8 (19) 18 PA.C.S. § 4303 (RELATING TO CONCEALING DEATH OF 9 CHILD). 10 (20) 18 PA.C.S. § 4304 (RELATING TO ENDANGERING WELFARE 11 OF CHILDREN). 12 (21) 18 PA.C.S. § 4305 (RELATING TO DEALING IN INFANT 13 CHILDREN). 14 (22) 18 PA.C.S. § 5902(B) (RELATING TO PROSTITUTION AND 15 RELATED OFFENSES). 16 (23) 18 PA.C.S. § 5903(C) OR (D) (RELATING TO OBSCENE 17 AND OTHER SEXUAL MATERIALS AND PERFORMANCES). 18 (24) 18 PA.C.S. § 6301 (RELATING TO CORRUPTION OF 19 MINORS). 20 (25) 18 PA.C.S. § 6312 (RELATING TO SEXUAL ABUSE OF 21 CHILDREN). 22 (26) 18 PA.C.S. § 6318 (RELATING TO UNLAWFUL CONTACT 23 WITH MINOR). 24 (27) 18 PA.C.S. § 6320 (RELATING TO SEXUAL EXPLOITATION 25 OF CHILDREN). 26 (28) 23 PA.C.S. § 6114 (RELATING TO CONTEMPT FOR 27 VIOLATION OF ORDER OR AGREEMENT). 28 (21) (29) The former 75 Pa.C.S. § 3731 (relating to <-- 29 driving under influence of alcohol or controlled substance). 30 (22) (30) 75 Pa.C.S. Ch. 38 (relating to driving after <-- 20050S0074B1150 - 21 -
1 imbibing alcohol or utilizing drugs).
2 (23) (31) Section 13(a)(1) of the act of April 14, 1972 <--
3 (P.L.233, No.64), known as The Controlled Substance, Drug,
4 Device and Cosmetic Act, to the extent that it prohibits the
5 manufacture, sale or delivery, holding, offering for sale or
6 possession of any controlled substance or other drug or
7 device.
8 (b) Parent convicted of murder.--No court shall award
9 custody, partial custody or visitation to a parent who has been
10 convicted of murder under 18 Pa.C.S. § 2502(a) (relating to
11 murder) of the other parent of the child who is the subject of
12 the order unless the child is of suitable age and consents to
13 the order.
14 (c) Initial evaluation.--The court shall provide for an
15 evaluation to determine whether:
16 (1) the party or household member who committed an
17 offense under subsection (a) poses a threat to the child; and
18 (2) counseling is necessary for that party or household
19 member.
20 (d) Counseling.--
21 (1) Where the court determines under subsection (c) that
22 counseling is necessary, it shall appoint a qualified
23 professional specializing in treatment relating to the
24 particular offense to provide counseling to the offending
25 individual.
26 (2) Counseling may include a program of treatment or
27 individual therapy designed to rehabilitate the offending
28 individual which addresses, but is not limited to, issues
29 regarding physical and sexual abuse, the psychology of the
30 offender and the effects of the offense on the victim.
20050S0074B1150 - 22 -
1 (e) Subsequent evaluation.-- 2 (1) At any time during or subsequent to the counseling 3 under subsection (d), the court may require another 4 evaluation to determine whether further counseling is 5 necessary. 6 (2) If the court awards custody or visitation to a party 7 who committed an offense under subsection (a) or who shares a 8 household with an individual who committed an offense under 9 subsection (a), the court may require subsequent evaluations 10 on the rehabilitation of the offending individual and the 11 well-being of the child subsequent to the order. If upon 12 review of a subsequent evaluation the court determines that 13 the offending individual poses a threat of physical, 14 emotional or psychological harm to the child, the court may 15 schedule a hearing to modify the custody or visitation order. 16 (f) Costs.--The court may order a party to pay all or part 17 of the costs of the counseling and evaluations under this 18 section. 19 § 5330. Consideration of criminal charge. 20 (a) Expedited hearing.--A party who has obtained information 21 under 42 Pa.C.S. § 1904 (relating to availability of criminal 22 charge information in child custody proceedings) or otherwise 23 about a charge filed against the other party for an offense 24 listed under section 5329(a) (relating to consideration of 25 criminal conviction) may move for a temporary custody or 26 visitation order or modification of an existing custody or 27 visitation order. The court shall hold the hearing under this 28 subsection in an expeditious manner. 29 (b) Risk of harm.--In evaluating any request under 30 subsection (a), the court shall consider whether the party who 20050S0074B1150 - 23 -
1 is or has been charged with an offense set forth in section 2 5329(a) poses a risk of physical, emotional or psychological 3 harm to the child. 4 (c) No prejudice.--Failure to either apply for information 5 under 42 Pa.C.S. § 1904 or act under this section shall not 6 prejudice any party in a custody or visitation proceeding. 7 § 5331. Parenting plan. 8 (a) Purpose.--In a contested custody proceeding, the court 9 shall require the parties to submit parenting plans for the care 10 and custody of the child, to aid the court in resolving the 11 custody dispute. A parenting plan and the position of a party as 12 set forth in that parenting plan shall not be admissible as 13 evidence by another party. 14 (b) Contents.--A parenting plan shall include the following: 15 (1) The schedule for personal care and control of the 16 child, including parenting time, holidays and vacations. 17 (2) The education and religious involvement, if any, of 18 the child. 19 (3) The health care of the child. 20 (4) Child-care arrangements. 21 (5) Transportation arrangements. 22 (6) A procedure by which proposed changes, disputes and 23 alleged breaches of the custody order may be adjudicated or 24 otherwise resolved through mediation, arbitration or other 25 means. 26 (7) Any matter specified by the court. 27 (8) Any other matter that serves the best interest of 28 the child. 29 § 5332. Informational programs. 30 (a) Attendance.--The court may direct the parties to attend 20050S0074B1150 - 24 -
1 informational programs concerning parental duties. 2 (b) Process not delayed.--Subsequent proceedings and the 3 entry of any order or decree shall not be delayed because of the 4 lack of participation in any informational program by one of the 5 parties. 6 (c) Costs.--The court may order a party to pay all or part 7 of the costs of the informational programs under this section. 8 § 5333. Counseling as part of order. 9 (a) Attendance.--The court may, as part of a custody or 10 visitation order, require the parties to attend counseling 11 sessions. 12 (b) Abuse.--In situations involving abuse, the court may 13 order individual counseling for the abuser. 14 (c) Verification.--Each party's participation in the 15 counseling sessions shall be verified by the counselor. 16 (d) Costs.--The court may order a party to pay all or part 17 of the costs of the counseling sessions under this section. 18 § 5334. Guardian ad litem for child. 19 (a) Appointment.--The court may appoint a guardian ad litem 20 for the child. The court shall specify the terms of the 21 appointment, including the role, duties and scope of authority 22 of the guardian ad litem. 23 (b) Investigation and report.--The guardian ad litem shall 24 investigate and report to the court information relevant to the 25 custody or visitation proceeding. 26 (c) Abuse.--If substantial allegations of abuse of the child 27 are made, the court shall appoint a guardian ad litem for the 28 child if: 29 (1) counsel for the child is not appointed under section 30 5335 (relating to counsel for child); or 20050S0074B1150 - 25 -
1 (2) the court is satisfied that the relevant information 2 will be presented to the court only with such appointment. 3 (d) Subject to examination.--A guardian ad litem who submits 4 a report or makes a recommendation to the court shall be subject 5 to examination by the parties. 6 (e) Costs.--The court may order a party to pay all or part 7 of the costs of appointing a guardian ad litem under this 8 section. 9 § 5335. Counsel for child. 10 (a) Appointment.--The court may appoint counsel to represent 11 the child if the court determines that the appointment will 12 assist in resolving the issues in the custody or visitation 13 proceeding. 14 (b) Abuse.--Substantial allegations of abuse of the child 15 constitute a reasonable basis for appointing counsel for the 16 child. 17 (c) Not subject to examination.--Counsel appointed by the 18 court for the child shall not be subject to examination unless 19 such counsel testifies in the matter. 20 (d) Costs.--The court may order a party to pay all or part 21 of the costs of appointing counsel for the child under this 22 section. 23 § 5336. Access to records and information. 24 (a) General rule.--Except as provided in subsections (b) and 25 (c): 26 (1) A party granted sole or shared legal custody under 27 section 5323 (relating to award of custody or visitation) 28 shall be provided access to: 29 (i) the medical, dental, religious and school 30 records of the child; 20050S0074B1150 - 26 -
1 (ii) the address of the child and any other party; 2 and 3 (iii) any other information that the court deems 4 necessary or proper. 5 (2) Upon request, a parent, party or entity possessing 6 any information set forth in paragraph (1) shall provide it 7 to any party granted sole or shared legal custody. 8 (b) Nondisclosure of confidential information.--The court 9 shall not order the disclosure of any of the following 10 information to any parent or party granted custody or 11 visitation: 12 (1) The address of a victim of abuse. 13 (2) Confidential information from an abuse counselor or 14 shelter. 15 (3) Information independently protected from disclosure 16 by the child's right to confidentiality under the act of July 17 9, 1976 (P.L.817, No.143), known as the Mental Health 18 Procedures Act, or any other statute. 19 (c) Other information.--The court may determine not to 20 release information set forth in subsection (a), in which case 21 it shall state the reason for its denial on the record. 22 § 5337. Relocation. 23 (a) Applicability.--This section applies to any proposed 24 relocation. 25 (b) General rule.--No relocation shall occur unless: 26 (1) every individual who has custody or visitation 27 rights to the child consents to the proposed relocation; or 28 (2) the court approves the proposed relocation. 29 (c) Notice.-- 30 (1) The party proposing the relocation shall notify 20050S0074B1150 - 27 -
1 every other individual who has custody or visitation rights 2 to the child. 3 (2) Reasonable notice shall be given no later than: 4 (i) the 60th day before the date of the proposed 5 relocation; or 6 (ii) the 10th day after the date that the individual 7 knows of the relocation, if: 8 (A) the individual did not know and could not 9 reasonably have known of the relocation in sufficient 10 time to comply with the 60-day notice; and 11 (B) it is not reasonably possible to delay the 12 date of relocation so as to comply with the 60-day 13 notice. 14 (3) Except as provided by section 5336 (relating to 15 access to records and information), the following 16 information, if available, must be included with the notice 17 of the proposed relocation: 18 (i) The address of the intended new residence. 19 (ii) The mailing address, if not the same as the 20 address of the intended new residence. 21 (iii) The home telephone number of the intended new 22 residence. 23 (iv) The name of the new school district and school. 24 (v) The date of the proposed relocation. 25 (vi) The reasons for the proposed relocation. 26 (vii) A proposal for a revised custody or visitation 27 schedule. 28 (viii) Any other information which the party 29 proposing the relocation deems appropriate. 30 (ix) A warning to the nonrelocating party that if 20050S0074B1150 - 28 -
1 the nonrelocating party does not file with the court an 2 objection to the proposed relocation within 30 days after 3 receipt of the notice, that party shall be foreclosed 4 from objecting to the relocation. 5 (4) If any of the information set forth in paragraph (3) 6 is not known when the notice is sent but is later made known 7 to the party proposing the relocation, then that party shall 8 promptly inform every individual who received notice under 9 this subsection. 10 (d) Objection to proposed relocation.-- 11 (1) A party entitled to receive notice may file with the 12 court an objection to the proposed relocation and seek a 13 temporary or permanent order to prevent the relocation. 14 (2) An objection made under this subsection shall be 15 filed with the court within 30 days of receipt of the 16 proposed relocation notice. 17 (3) If notice of the proposed relocation has been 18 properly given and no objection to the proposed relocation 19 has been filed in court, then it shall be presumed that the 20 nonrelocating party has consented to the proposed relocation. 21 (4) If a party entitled to notice does not file with the 22 court an objection to the relocation within 30 days after 23 receipt of the notice but later petitions the court for 24 review of the custodial arrangements, the court shall not 25 accept testimony challenging the relocation. 26 (e) Confirmation of relocation.--If no objection to the 27 proposed relocation is filed under subsection (d), the party 28 proposing the relocation may file the following with the court 29 prior to the relocation: 30 (1) an affidavit stating that the party provided notice 20050S0074B1150 - 29 -
1 to every individual entitled to notice, the time to file an 2 objection to the proposed relocation has passed and no 3 individual entitled to receive notice has filed an objection 4 to the proposed relocation; 5 (2) a petition to confirm the relocation and modify any 6 existing custody or visitation order; and 7 (3) a proposed order containing the information set 8 forth in subsection (c)(3). 9 (f) Hearing.-- 10 (1) The court shall hold an expedited full hearing on 11 the proposed relocation after a timely objection has been 12 filed and before the relocation occurs unless exigent 13 circumstances exist, in which case the relocation may occur 14 pending an expedited full hearing. 15 (2) If the court approves the proposed relocation, it 16 shall: 17 (i) modify any existing custody or visitation order; 18 or 19 (ii) establish the terms and conditions of a custody 20 or visitation order. 21 (g) Relocation factors.--In determining whether to grant a 22 proposed relocation, the court shall consider the following 23 factors: 24 (1) The nature, quality, extent of involvement and 25 duration of the child's relationship with the party proposing 26 to relocate and with the nonrelocating party, siblings and 27 other significant persons in the child's life. 28 (2) The age, developmental stage, needs of the child and 29 the likely impact the relocation will have on the child's 30 physical, educational and emotional development, taking into 20050S0074B1150 - 30 -
1 consideration any special needs of the child. 2 (3) The feasibility of preserving the relationship 3 between the nonrelocating party and the child through 4 suitable custody arrangements, considering the logistics and 5 financial circumstances of the parties. 6 (4) The child's preference, taking into consideration 7 the age and maturity of the child. 8 (5) Whether there is an established pattern of conduct 9 of either party to promote or thwart the relationship of the 10 child and the other party. 11 (6) Whether the relocation will enhance the general 12 quality of life for the party seeking the relocation, 13 including, but not limited to, financial or emotional benefit 14 or educational opportunity. 15 (7) Whether the relocation will enhance the general 16 quality of life for the child, including, but not limited to, 17 financial or emotional benefit or educational opportunity. 18 (8) The reasons and motivation of each party for seeking 19 or opposing the relocation. 20 (9) Any other factor affecting the best interest of the 21 child. 22 (h) Burden of proof.-- 23 (1) The party proposing the relocation has the burden of 24 establishing that the relocation will serve the best interest 25 of the child as shown under the factors set forth in 26 subsection (g). 27 (2) Each party has the burden of establishing the 28 integrity of that party's motives in either seeking the 29 relocation or seeking to prevent the relocation. 30 (i) Failure to provide reasonable notice.--The court may 20050S0074B1150 - 31 -
1 consider a failure to provide reasonable notice of a proposed 2 relocation as: 3 (1) a factor in making a determination regarding the 4 relocation; 5 (2) a factor in determining whether custody or 6 visitation rights should be modified; 7 (3) a basis for ordering the return of the child to the 8 nonrelocating party if the relocation has occurred without 9 reasonable notice; 10 (4) sufficient cause to order the party proposing the 11 relocation to pay reasonable expenses and counsel fees 12 incurred by the party objecting to the relocation; and 13 (5) a ground for contempt and the imposition of 14 sanctions against the party proposing the relocation. 15 (j) Effect of relocation prior to hearing.--If a party 16 relocates with the child prior to a full expedited hearing, the 17 court shall not confer any presumption in favor of the 18 relocation. 19 § 5338. Modification of existing order. 20 (a) Best interest of the child.--Upon petition, a court may 21 modify a custody or visitation order to serve the best interest 22 of the child. 23 (b) Applicability.--This section shall apply to any custody 24 or visitation order entered by a court of this Commonwealth or 25 any other state subject to the jurisdictional requirements set 26 forth in Chapter 54 (relating to uniform child custody 27 jurisdiction and enforcement). 28 § 5339. Award of counsel fees, costs and expenses. 29 Under this chapter, a court may award reasonable interim or 30 final counsel fees, costs and expenses to any party, based on 20050S0074B1150 - 32 -
1 any relevant factor including, but not limited to, the 2 following: 3 (1) The good faith conduct of the parties. 4 (2) The relative financial resources of the parties, 5 including the ability of a party to participate in custody 6 litigation. 7 (3) The need of a party to engage experts. 8 (4) The best interest of the child. 9 SECTION 3. 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 CONVICTIONS). 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). 20050S0074B1150 - 33 -
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 20050S0074B1150 - 34 -
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 * * *
20050S0074B1150 - 35 -
1 Section 3 4. 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 4 5. This act shall take effect in 60 days. <-- L23L23DMS/20050S0074B1150 - 36 -