PRIOR PRINTER'S NOS. 2037, 3705

PRINTER'S NO.  3884

  

THE GENERAL ASSEMBLY OF PENNSYLVANIA

  

HOUSE BILL

 

No.

1639

Session of

2009

  

  

INTRODUCED BY MANDERINO, CALTAGIRONE, CARROLL, FABRIZIO, FREEMAN, GODSHALL, JOSEPHS, MANN, MILNE, MUNDY, PASHINSKI, READSHAW, SIPTROTH, K. SMITH, TRUE, WALKO, WHITE, YOUNGBLOOD, MUSTIO, KULA, LEVDANSKY, D. COSTA, CREIGHTON, HORNAMAN, PARKER, McILVAINE SMITH, BRIGGS, GIBBONS, FRANKEL, MAHONEY, KORTZ, FARRY, MELIO AND CUTLER, JUNE 8, 2009

  

  

AS AMENDED ON SECOND CONSIDERATION, HOUSE OF REPRESENTATIVES, JUNE 9, 2010   

  

  

  

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, 5314 and 5315 of Title 23 of

11

the Pennsylvania Consolidated Statutes are repealed:

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:

 


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.

- 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

- 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

- 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

- 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

- 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

- 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

Except as provided in 51 Pa.C.S. § 4109 (relating to child

- 8 -

 


1

custody proceedings during military deployment), any order for

2

the custody of the child of a marriage entered by a court in

3

this Commonwealth or any state may, subject to the

4

jurisdictional requirements set forth in Chapter 54 (relating to

5

uniform child custody jurisdiction and enforcement), be modified

6

at any time to an order of shared custody in accordance with

7

this subchapter.

8

§ 5311.  When parent deceased.

9

If a parent of an unmarried child is deceased, the parents or

10

grandparents of the deceased parent may be granted reasonable

11

partial custody or visitation rights, or both, to the unmarried

12

child by the court upon a finding that partial custody or

13

visitation rights, or both, would be in the best interest of the

14

child and would not interfere with the parent-child

15

relationship. The court shall consider the amount of personal

16

contact between the parents or grandparents of the deceased

17

parent and the child prior to the application.

18

§ 5312.  When parents' marriage is dissolved or parents are

19

separated.

20

In all proceedings for dissolution, subsequent to the

21

commencement of the proceeding and continuing thereafter or when

22

parents have been separated for six months or more, the court

23

may, upon application of the parent or grandparent of a party,

24

grant reasonable partial custody or visitation rights, or both,

25

to the unmarried child if it finds that visitation rights or

26

partial custody, or both, would be in the best interest of the

27

child and would not interfere with the parent-child

28

relationship. The court shall consider the amount of personal

29

contact between the parents or grandparents of the party and the

30

child prior to the application.

- 9 -

 


1

§ 5313.  When grandparents may petition.

2

(a)  Partial custody and visitation.--If an unmarried child

3

has resided with his grandparents or great-grandparents for a

4

period of 12 months or more and is subsequently removed from the

5

home by his parents, the grandparents or great-grandparents may

6

petition the court for an order granting them reasonable partial

7

custody or visitation rights, or both, to the child. The court

8

shall grant the petition if it finds that visitation rights

9

would be in the best interest of the child and would not

10

interfere with the parent-child relationship.

11

(b)  Physical and legal custody.--A grandparent has standing

12

to bring a petition for physical and legal custody of a

13

grandchild. If it is in the best interest of the child not to be

14

in the custody of either parent and if it is in the best

15

interest of the child to be in the custody of the grandparent,

16

the court may award physical and legal custody to the

17

grandparent. This subsection applies to a grandparent:

18

(1)  who has genuine care and concern for the child;

19

(2)  whose relationship with the child began with the

20

consent of a parent of the child or pursuant to an order of

21

court; and

22

(3)  who for 12 months has assumed the role and

23

responsibilities of the child's parent, providing for the

24

physical, emotional and social needs of the child, or who

25

assumes the responsibility for a child who has been

26

determined to be a dependent child pursuant to 42 Pa.C.S. Ch.

27

63 (relating to juvenile matters) or who assumes or deems it

28

necessary to assume responsibility for a child who is

29

substantially at risk due to parental abuse, neglect, drug or

30

alcohol abuse or mental illness. The court may issue a

- 10 -

 


1

temporary order pursuant to this section.

2

§ 5314.  Exception for adopted children.

3

Sections 5311 (relating to when parent deceased), 5312

4

(relating to when parents' marriage is dissolved or parents are

5

separated) and 5313 (relating to when child has resided with

6

grandparents) shall not apply if the child has been adopted by a

7

person other than a stepparent or grandparent. Any visitation

8

rights granted pursuant to this section prior to the adoption of

9

the child shall be automatically terminated upon such adoption.

10

§ 5315.  Court-appointed child custody health care or behavioral

11

health practitioners.

12

No party to a child custody matter in which the court has

13

appointed a licensed health care or behavioral health

14

practitioner to assist the court by conducting an examination or

15

evaluation of the parties involved or making a recommendation

16

concerning a child custody agreement or order may be permitted

17

to file a complaint against the practitioner with the

18

practitioner's State licensing board prior to the final

19

agreement or order being issued and for 60 days thereafter. As

20

used in this section, "licensed health care or behavioral health

21

practitioner" means a person who is licensed, certified,

22

accredited or otherwise regulated by the Commonwealth to provide

23

health care or behavioral health services.]

24

Section 2.  Title 23 is amended by adding a chapter to read:

25

CHAPTER 53

26

CHILD CUSTODY

27

Sec.

28

5321.  Scope of chapter.

29

5322.  Definitions.

30

5323.  Award of custody.

- 11 -

 


1

5324.  Standing for any form of physical custody or legal

2

custody.

3

5325.  Standing for partial physical custody and supervised

4

physical custody.

5

5326.  Effect of adoption.

6

5327.  Presumption in cases concerning primary physical custody.

7

5328.  Factors to consider when awarding custody.

8

5329.  Consideration of criminal conviction.

9

5330.  Consideration of criminal charge.

10

5331.  Parenting plan.

11

5332.  Informational programs.

12

5333.  Counseling as part of order.

13

5334.  Guardian ad litem for child.

14

5335.  Counsel for child.

15

5336.  Access to records and information.

16

5337.  Relocation.

17

5338.  Modification of existing order.

18

5339.  Award of counsel fees, costs and expenses.

19

5340.  Court-appointed child custody health care or behavioral

20

health practitioners.

21

§ 5321.  Scope of chapter.

22

This chapter applies to disputes relating to child custody

23

matters.

24

§ 5322.  Definitions.

25

The following words and phrases when used in this chapter

26

shall have the meanings given to them in this section unless the

27

context clearly indicates otherwise:

28

"Abuse."  As defined in section 6102 (relating to

29

definitions).

30

"Adult."  An individual 18 years of age or older.

- 12 -

 


1

"Agency."  Any organization, society, institution or other

2

entity, including the county children and youth social service

3

agency or court facility, which provides for the care of the

4

child.

5

"Child."  An unemancipated individual under 18 years of age.

6

"Legal custody."  The right to make major decisions on behalf

7

of the child, including, but not limited to, medical, religious

8

and educational decisions.

9

"Parental duties."  Includes meeting the physical, emotional

10

and social needs of the child.

11

"Partial physical custody."  The right to assume physical

12

custody of the child for less than a majority of the time.

13

"Physical custody."  The actual physical possession and

14

control of a child.

15

"Primary physical custody."  The right to assume physical

16

custody of the child for the majority of time.

17

"Relocation."  A change in a residence of the child which

18

significantly impairs the ability of a nonrelocating party to

19

exercise custodial rights.

20

"Shared legal custody."  The right of more than one

21

individual to legal custody of the child.

22

"Shared physical custody."  The right of more than one

23

individual to assume physical custody of the child, each having

24

significant periods of physical custodial time with the child.

25

"Sole legal custody."  The right of one individual to

26

exclusive legal custody of the child.

27

"Sole physical custody."  The right of one individual to

28

exclusive physical custody of the child.

29

"Supervised physical custody."  Custodial time during which

30

an agency or an adult designated by the court or agreed upon by

- 13 -

 


1

the parties monitors the interaction between the child and the

2

individual with those rights.

3

§ 5323.  Award of custody.

4

(a)  Types of award.--After considering the factors set forth

5

in section 5328 (relating to factors to consider when awarding

6

custody), the court may award any of the following types of

7

custody if it is in the best interest of the child:

8

(1)  Shared physical custody.

9

(2)  Primary physical custody.

10

(3)  Partial physical custody.

11

(4)  Sole physical custody.

12

(5)  Supervised physical custody.

13

(6)  Shared legal custody.

14

(7)  Sole legal custody.

15

(b)  Interim award.--The court may issue an interim award of

16

custody to a party who has standing under section 5324 (relating

17

to standing for any form of physical custody or legal custody)

18

or 5325 (relating to standing for partial physical custody and

19

supervised physical custody), in the manner prescribed by the

20

Pennsylvania Rules of Civil Procedure governing special relief

21

in custody matters.

22

(c)  Notice.--Any custody order shall include notice of a

23

party's obligations under section 5337 (relating to relocation).

24

(d)  Reasons for award.--The court shall delineate the

25

reasons for its decision on the record in open court or in a

26

written opinion or order.

27

(e)  Safety conditions.--After considering the factors under

28

section 5328(a)(2), if the court finds that there is an ongoing

29

risk of harm to the child or an abused party and awards any form

30

of custody to a party who committed the abuse or who has a

- 14 -

 


1

household member who committed the abuse, the court shall

2

include in the custody order safety conditions designed to

3

protect the child or the abused party.

4

(f)  Enforcement.--In awarding custody, the court shall

5

specify the terms and conditions of the award in sufficient

6

detail to enable a party to enforce the court order through law

7

enforcement authorities.

8

(g)  Contempt for noncompliance with any custody order.--

9

(1)  A party who willfully fails to comply with any

10

custody order may, as prescribed by general rule, be adjudged

11

in contempt. Contempt shall be punishable by any one or more

12

of the following:

13

(i)  Imprisonment for a period of not more than six

14

months.

15

(ii)  A fine of not more than $500.

16

(iii)  Probation for a period of not more than six

17

months.

18

(iv)  An order for nonrenewal, suspension or denial

19

of operating privilege under section 4355 (relating to

20

denial or suspension of licenses).

21

(v)  Counsel fees and costs.

22

(2)  An order committing an individual to jail under this

23

section shall specify the condition which, when fulfilled,

24

will result in the release of that individual.

25

(h)  Parties in same residence.--Parties living separate and

26

apart in the same residence may seek relief under this chapter,

27

but any custody order made under such a circumstance shall be

28

effective only upon:

29

(1)  one party physically vacating the residence; or

30

(2)  an order awarding one party exclusive possession of

- 15 -

 


1

the residence.

2

§ 5324.  Standing for any form of physical custody or legal

3

custody.

4

The following individuals may file an action under this

5

chapter for any form of physical custody or legal custody:

6

(1)  A parent of the child.

7

(2)  A person who stands in loco parentis to the child.

8

(3)  A grandparent of the child who is not in loco

9

parentis to the child:

10

(i)  whose relationship with the child began either

11

with the consent of a parent of the child or under a

12

court order;

13

(ii)  who assumes or is willing to assume

14

responsibility for the child; and

15

(iii)  when one of the following conditions is met:

16

(A)  the child has been determined to be a

17

dependent child under 42 Pa.C.S. Ch. 63 (relating to

18

juvenile matters);

19

(B)  the child is substantially at risk due to

20

parental abuse, neglect, drug or alcohol abuse or

21

incapacity; or

22

(C)  the child has for a period of at least 12

23

consecutive months resided with the grandparent,

24

excluding brief temporary absences of the child from

25

the home, and is removed from the home by the

26

parents, in which case the action must be filed

27

within six months after the removal of the child from

28

the home.

29

§ 5325.  Standing for partial physical custody and supervised

30

physical custody.

- 16 -

 


1

In addition to situations set forth in section 5324 (relating

2

to standing for any form of physical custody or legal custody),

3

grandparents and great-grandparents may file an action under

4

this chapter for partial physical custody or supervised physical

5

custody in the following situations:

6

(1)  where the parent of the child is deceased, a parent

7

or grandparent of the deceased parent may file an action

8

under this section;

9

(2)  where the parents of the child have been separated

10

for a period of at least six months or have commenced and

11

continued a proceeding to dissolve their marriage; or

12

(3)  when the child has, for a period of at least 12

13

consecutive months, resided with the grandparent or great-

14

grandparent, excluding brief temporary absences of the child

15

from the home, and is removed from the home by the parents,

16

an action must be filed within six months after the removal

17

of the child from the home.

18

§ 5326.  Effect of adoption.

19

Any rights to seek physical custody or legal custody rights

20

and any custody rights that have been granted under section 5324

21

(relating to standing for any form of physical custody or legal

22

custody) or 5325 (relating to standing for partial physical

23

custody and supervised physical custody) to a grandparent or

24

great-grandparent prior to the adoption of the child by an

25

individual other than a stepparent, grandparent or great-

26

grandparent shall be automatically terminated upon such

27

adoption.

28

§ 5327.  Presumption in cases concerning primary physical

29

custody.

30

(a)  Between parents.--In any action regarding the custody of

- 17 -

 


1

the child between the parents of the child, there shall be no

2

presumption that custody should be awarded to a particular

3

parent.

4

(b)  Between a parent and third party.--In any action

5

regarding the custody of the child between a parent of the child

6

and a nonparent, there shall be a presumption that custody shall

7

be awarded to the parent. The presumption in favor of the parent

8

may be rebutted by clear and convincing evidence.

9

(c)  Between third parties.--In any action regarding the

10

custody of the child between a nonparent and another nonparent,

11

there shall be no presumption that custody should be awarded to

12

a particular party.

13

§ 5328.  Factors to consider when awarding custody.

14

(a)  Factors.--In ordering any form of custody, the court

15

shall determine the best interest of the child by considering

16

all relevant factors, giving weighted consideration to those

17

factors which affect the safety of the child, including the

18

following:

19

(1)  Which party is more likely to encourage and permit

20

frequent and continuing contact between the child and another

21

party.

22

(2)  The present and past abuse committed by a party or

23

member of the party's household, whether there is a continued

24

risk of harm to the child or an abused party and which party

25

can better provide adequate physical safeguards and

26

supervision of the child.

27

(3)  The parental duties performed by each party on

28

behalf of the child.

29

(4)  The need for stability and continuity in the child's

30

education, family life and community life.

- 18 -

 


1

(5)  The availability of extended family.

2

(6)  The child's sibling relationships.

3

(7)  The well-reasoned preference of the child, based on

4

the child's maturity and judgment.

5

(8)  The attempts of a parent to turn the child against

6

the other parent, except in cases of domestic violence where

7

reasonable safety measures are necessary to protect the child

8

from harm.

9

(9)  Which party is more likely to maintain a loving,

10

stable, consistent and nurturing relationship with the child

11

adequate for the child's emotional needs.

12

(10)  Which party is more likely to attend to the daily

13

physical, emotional, developmental, educational and special

14

needs of the child.

15

(11)  The proximity of the residences of the parties.

16

(12)  Each party's availability to care for the child or

17

ability to make appropriate child-care arrangements.

18

(13)  The level of conflict between the parties and the

19

willingness and ability of the parties to cooperate with one

20

another. A party's effort to protect a child from abuse by

21

another party is not evidence of unwillingness or inability

22

to cooperate with that party.

23

(14)  The history of drug or alcohol abuse of a party or

24

member of a party's household.

25

(15)  The mental and physical condition of a party or

26

member of a party's household.

27

(16)  Any other relevant factor.

28

(b)  Gender neutral.--The court shall be gender neutral in

29

making a determination under subsection (a). No party shall

30

receive preference based solely upon gender in any award granted

- 19 -

 


1

under this chapter.

2

(c)  Grandparents and great-grandparents.--

3

(1)  In ordering partial physical custody or supervised

4

physical custody to a party who has standing under section

5

5325(1) or (2) (relating to standing for partial physical

6

custody and supervised physical custody), the court shall

7

consider the following:

8

(i)  the amount of personal contact between the child

9

and the party prior to the filing of the action;

10

(ii)  whether the award interferes with any parent-

11

child relationship; and

12

(iii)  whether the award is in the best interest of

13

the child.

14

(2)  In ordering partial physical custody or supervised

15

physical custody to a parent's parent or grandparent who has

16

standing under section 5325(3), the court shall consider

17

whether the award:

18

(i)  interferes with any parent-child relationship;

19

and

20

(ii)  is in the best interest of the child.

21

§ 5329.  Consideration of criminal conviction.

22

(a)  Offenses.--Where a party seeks any form of custody, the

23

court shall consider whether that party or member of that

24

party's household has been convicted of or has pleaded guilty or

25

no contest to any of the offenses in this section or an offense

26

in another jurisdiction substantially equivalent to any of the

27

offenses in this section. The court shall consider such conduct

28

and determine that the party does not pose a threat of harm to

29

the child before making an order of custody, partial custody or

<--

30

visitation any order of custody to that parent when considering

<--

- 20 -

 


1

the 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 motor

10

vehicle or structure).

11

18 Pa.C.S. § 3121 (relating to rape).

12

18 Pa.C.S. § 3122.1 (relating to statutory sexual assault).

13

18 Pa.C.S. § 3123 (relating to involuntary deviate sexual

14

intercourse).

15

18 Pa.C.S. § 3124.1 (relating to sexual assault).

16

18 Pa.C.S. § 3125 (relating to aggravated indecent assault).

17

18 Pa.C.S. § 3126 (relating to indecent assault).

18

18 Pa.C.S. § 3127 (relating to indecent exposure).

19

18 Pa.C.S. § 3129 (relating to sexual intercourse with

20

animal).

21

18 Pa.C.S. § 3130 (relating to conduct relating to sex

22

offenders).

23

18 Pa.C.S. § 3301 (relating to arson and related offenses).

24

18 Pa.C.S. § 4302 (relating to incest).

25

18 Pa.C.S. § 4303 (relating to concealing death of child).

26

18 Pa.C.S. § 4304 (relating to endangering welfare of

27

children).

28

18 Pa.C.S. § 4305 (relating to dealing in infant children).

29

18 Pa.C.S. § 5902(b) (relating to prostitution and related

30

offenses).

- 21 -

 


1

18 Pa.C.S. § 5903(c) or (d) (relating to obscene and other

2

sexual materials and performances).

3

18 Pa.C.S. § 6301 (relating to corruption of minors).

4

18 Pa.C.S. § 6312 (relating to sexual abuse of children).

5

18 Pa.C.S. § 6318 (relating to unlawful contact with minor).

6

18 Pa.C.S. § 6320 (relating to sexual exploitation of

7

children).

8

Section 6114 (relating to contempt for violation of order or

9

agreement).

10

The former 75 Pa.C.S. § 3731 (relating to driving under

11

influence of alcohol or controlled substance).

12

75 Pa.C.S. Ch. 38 (relating to driving after imbibing alcohol

13

or utilizing drugs).

14

Section 13(a)(1) of the act of April 14, 1972 (P.L.233,

15

No.64), known as The Controlled Substance, Drug, Device and

16

Cosmetic Act, to the extent that it prohibits the manufacture,

17

sale or delivery, holding, offering for sale or possession of

18

any controlled substance or other drug or device.

19

(b)  Parent convicted of murder.--No court shall award

20

custody, partial custody or supervised physical custody to a

21

parent who has been convicted of murder under 18 Pa.C.S. §

22

2502(a) (relating to murder) of the other parent of the child

23

who is the subject of the order unless the child is of suitable

24

age and consents to the order.

25

(c)  Initial evaluation.--The court shall provide for an

26

evaluation to determine whether:

27

(1)  the party or household member who committed an

28

offense under subsection (a) poses a threat to the child; and

29

(2)  counseling is necessary for that party or household

30

member.

- 22 -

 


1

(d)  Counseling.--

2

(1)  Where the court determines under subsection (c) that

3

counseling is necessary, it shall appoint a qualified

4

professional specializing in treatment relating to the

5

particular offense to provide counseling to the offending

6

individual.

7

(2)  Counseling may include a program of treatment or

8

individual therapy designed to rehabilitate the offending

9

individual which addresses, but is not limited to, issues

10

regarding physical and sexual abuse, the psychology of the

11

offender and the effects of the offense on the victim.

12

(e)  Subsequent evaluation.--

13

(1)  At any time during or subsequent to the counseling

14

under subsection (d), the court may require another

15

evaluation to determine whether further counseling is

16

necessary.

17

(2)  If the court awards custody to a party who committed

18

an offense under subsection (a) or who shares a household

19

with an individual who committed an offense under subsection

20

(a), the court may require subsequent evaluations on the

21

rehabilitation of the offending individual and the well-being

22

of the child subsequent to the order. If upon review of a

23

subsequent evaluation the court determines that the offending

24

individual poses a threat of physical, emotional or

25

psychological harm to the child, the court may schedule a

26

hearing to modify the custody order.

27

(f)  Costs.--The court may order a party to pay all or part

28

of the costs of the counseling and evaluations under this

29

section.

30

§ 5330.  Consideration of criminal charge.

- 23 -

 


1

(a)  Expedited hearing.--A party who has obtained information

2

under 42 Pa.C.S. § 1904 (relating to availability of criminal

3

charge information in child custody proceedings) or otherwise

4

about a charge filed against the other party for an offense

5

listed under section 5329(a) (relating to consideration of

6

criminal conviction) may move for a temporary custody order or

7

modification of an existing custody order. The court shall hold

8

the hearing under this subsection in an expeditious manner.

9

(b)  Risk of harm.--In evaluating any request under

10

subsection (a), the court shall consider whether the party who

11

is or has been charged with an offense set forth in section

12

5329(a) poses a risk of physical, emotional or psychological

13

harm to the child.

14

(c)  No prejudice.--Failure to either apply for information

15

under 42 Pa.C.S. § 1904 or act under this section shall not

16

prejudice any party in a custody proceeding.

17

§ 5331.  Parenting plan.

18

(a)  Purpose.--In a contested custody proceeding, the court 

19

may require the parties to submit parenting plans for the care

20

and custody of the child to aid the court in resolving the

21

custody dispute. A parenting plan and the position of a party as

22

set forth in that parenting plan shall not be admissible as

23

evidence by another party.

24

(b)  Contents.--A parenting plan shall include the following:

25

(1)  The schedule for personal care and control of the

26

child, including parenting time, holidays and vacations.

27

(2)  The education and religious involvement, if any, of

28

the child.

29

(3)  The health care of the child.

30

(4)  Child-care arrangements.

- 24 -

 


1

(5)  Transportation arrangements.

2

(6)  A procedure by which proposed changes, disputes and

3

alleged breaches of the custody order may be adjudicated or

4

otherwise resolved through mediation, arbitration or other

5

means.

6

(7)  Any matter specified by the court.

7

(8)  Any other matter that serves the best interest of

8

the child.

9

The court shall consider the financial resources of the parties

<--

10

when the court requires the parties to submit parenting plans.

11

(c)  Form.--If the court orders the parties to propose a

<--

12

parenting plan, it shall be submitted to the court in

13

substantially the following form:

14

CAPTION

15

PARENTING PLAN

16

This parenting plan involves the following child/children:

17

Child's Name

Age

Where does this child live?

18

1...................

..............

...........................

19

2...................

..............

...........................

20

3...................

..............

...........................

21

If you have children not addressed by this parenting plan, name

22

here:

23

Child's Name

Age

Where does this child live?

24

1...................

..............

...........................

25

2...................

..............

...........................

26

3...................

..............

...........................

27

Legal Custody (who makes decisions about certain things):

28

Circle one

29

Diet.......... Both parties decide together / Plaintiff /

30

Defendant

- 25 -

 


1

Religion....... Both parties decide together / Plaintiff /

2

Defendant

3

Medical Care... Both parties decide together / Plaintiff /

4

Defendant

5

Mental Health Care... Both parties decide together / Plaintiff /

6

Defendant

7

Discipline..... Both parents decide together / Plaintiff /

8

Defendant

9

Choice of School.... Both parents decide together / Plaintiff /

10

Defendant

11

Choice of Study..... Both parents decide together / Plaintiff /

12

Defendant

13

School Activities... Both parents decide together / Plaintiff /

14

Defendant

15

Sports Activities... Both parents decide together / Plaintiff /

16

Defendant

17

Additional items... Both parents decide together / Plaintiff /

18

Defendant

19

Explain what process you will use to make decisions?

20

(For example, the parent confronted with or anticipating the

21

choice will call the other parent when the choice presents

22

itself, and the other parent must agree or disagree within 24

23

hours of any deadline)

24

................................................................

25

................................................................

26

PHYSICAL CUSTODY (where the child/children live)

27

The child's/children's residence is with........................

28

Describe which days and which times of the day the

29

child/children will be with each person:

30

SUNDAY MONDAY  TUESDAY  WEDNESDAY  THURSDAY  FRIDAY  SATURDAY

- 26 -

 


1

........................................................

2

Describe where and when the child/children will be dropped off

3

and/or picked up (day and time of day)?

4

DROP-OFF

5

WHERE...................................................

6

WHEN....................................................

7

........................................................

8

PICK-UP

9

WHERE ...................................................

10

WHEN ....................................................

11

.........................................................

12

If one of you doesn't show up, how long will the other

13

wait?.......................................................

14

If there are any extraordinary costs (taxi, train, airplane,

15

etc.), who will pay for which costs?

16

...........................................................

17

...........................................................

18

HOLIDAYS

19

Where will the child/children stay?

20

HOLIDAY

YEAR A

YEAR B

EVERY YEAR

21

Martin Luther King Day

..........

..........

...........

22

President's Day

..........

..........

...........

23

Easter

..........

..........

...........

24

Memorial Day

..........

..........

...........

25

Fourth of July

..........

..........

...........

26

Labor Day

..........

..........

...........

27

Yom Kippur

..........

..........

...........

28

Rosh Hashanah

..........

..........

...........

29

Thanksgiving

..........

..........

...........

30

Vacation after Thanksgiving

..........

..........

...........

- 27 -

 


1

Christmas Vacation

..........

..........

...........

2

Kwanzaa

..........

..........

...........

3

New Year's Eve/Day

..........

..........

...........

4

Spring Vacation

..........

..........

...........

5

Easter Sunday

..........

..........

...........

6

Child's Birthday

..........

..........

...........

7

Mother's Day

..........

..........

...........

8

Father's Day

..........

..........

...........

9

Other

..........

..........

...........

10

Other

..........

..........

...........

11

Other

..........

..........

...........

12

Summer Vacation Plans

13

.............................................................

14

.............................................................

15

Special Activities or School Activities

16

  

  

Will both of you attend?

17

Child's Name

Activity

If not, which of you will attend?

18

.................

..........

..................................

19

.................

..........

..................................

20

.................

..........

..................................

21

TEMPORARY CHANGES TO THIS PARENTING SCHEDULE

22

From time to time, one of you might want or need to rearrange

23

the parenting time schedule due to work, family or other events.

24

You can attempt to agree on these changes. If you cannot agree,

25

the parent receiving the request will make the final decision.

26

The parent asking for the change will ask......in

27

person........by letter/mail.....by phone

28

No later than

29

....12 hours..... 24 hours.... 1 week..... 1 month

30

The parent being asked for a change will reply

- 28 -

 


1

.... in person..... by letter/mail..... by phone

2

No later than

3

..... 12 hours....... 24 hours........ 1 week....... 1 month

4

May parents contact one another?..............................

5

When the child/children is/are with one of you, how may they

6

contact the other parent?.......................................

7

................................................................

8

When and how may ............contact the child?

9

................................................................

10

................................................................

11

In the event that proposed changes, disputes or alleged breaches

12

of this parenting plan and custody order are necessary or

13

desired, the parties agree that such changes will be addressed

14

by the following method (specify method of arbitration,

15

mediation, court action, etc.):

16

................................................................

17

................................................................

18

The following matter or matters as specified by the court:

19

................................................................

20

................................................................

21

OTHER  (Anything else you want to agree on)

22

................................................................

23

................................................................

24

...............................................................

25

Date...........................

................................

26

  

Signature of Mother

27

Date...........................

................................

28

  

Signature of Father

29

Date...........................

................................

30

  

Signature of Witness

- 29 -

 


1

§ 5332.  Informational programs.

2

(a)  Attendance.--The court may direct the parties to attend

3

informational programs concerning parental duties.

4

(b)  Process not delayed.--Subsequent proceedings and the

5

entry of any order or decree shall not be delayed because of the

6

lack of participation in any informational program by one of the

7

parties.

8

(c)  Costs.--The court may order a party to pay all or part

9

of the costs of the informational programs under this section.

10

§ 5333.  Counseling as part of order.

11

(a)  Attendance.--The court may, as part of a custody order,

12

require the parties to attend counseling sessions.

13

(b)  Abuse.--In situations involving abuse, the court may

14

order individual counseling for the abuser but may not order the

15

parties to attend joint counseling.

16

(c)  Verification.--Each party's participation in the

17

counseling sessions shall be verified by the counselor.

18

(d)  Costs.--The court may order a party to pay all or part

19

of the costs of the counseling sessions under this section.

20

§ 5334.  Guardian ad litem for child.

21

(a)  Appointment.--The court may appoint a guardian ad litem

<--

22

for the child. The court shall specify the terms of the

23

appointment, including the role, duties and scope of authority

24

of the guardian ad litem.

25

(b)  Investigation and report.--The guardian ad litem shall

26

investigate and report to the court information relevant to the

27

custody proceeding.

28

(a)  Appointment.--The court may on its own motion or the

<--

29

motion of a party appoint a guardian ad litem to represent the

30

child in the action. The court may assess the cost upon the

- 30 -

 


1

parties or any of them or as otherwise provided by law. The

2

guardian ad litem must be an attorney at law.

3

(b)  Powers and duties.--The guardian ad litem shall be

4

charged with representation of the legal interests and the best

5

interests of the child during the proceedings and shall do all

6

of the following:

7

(1)  Meet with the child as soon as possible following

8

the appointment, and on a regular basis thereafter in a

9

manner appropriate to the child's age and maturity.

10

(2)  On a timely basis, be given access to relevant court

11

and county agency records, reports of examination of the

12

parents or other custodian of the child and medical,

13

psychological and school records.

14

(3)  Participate in all proceedings.

15

(4)  Conduct such further investigation necessary to

16

ascertain the facts.

17

(5)  Interview potential witnesses, including the child's

18

parents, caretakers and foster parents, if any, examine and

19

cross-examine witnesses and present witnesses and evidence

20

necessary to protect the best interests of the child.

21

(6)  Make specific recommendations to the court relating

22

to the best interests of the child, including any services

23

necessary to address the child's needs and safety.

24

(7)  Explain the proceedings to the child to the extent

25

appropriate given the child's age, mental condition and

26

emotional condition.

27

(8)  Advise the court of the child's wishes to the extent

28

that they can be ascertained and present to the court

29

whatever evidence exists to support the child's wishes. When

30

appropriate because of the age or mental and emotional

- 31 -

 


1

condition of the child, determine to the fullest extent

2

possible the wishes of the child and communicate this

3

information to the court. A difference between the child's

4

wishes under this paragraph and the recommendations under

5

paragraph (6) shall not be considered a conflict of interest

6

for the guardian ad litem.

7

(c)  Abuse.--If substantial allegations of abuse of the child

8

are made, the court shall appoint a guardian ad litem for the

9

child if:

10

(1)  counsel for the child is not appointed under section

11

5335 (relating to counsel for child); or

12

(2)  the court is satisfied that the relevant information

13

will be presented to the court only with such appointment.

14

(d)  Evidence subject to examination.--

<--

15

(1)  A lawyer appointed as

16

(d)  Evidence subject to examination.--A guardian ad litem

<--

17

may not testify except as authorized by Rule 3.7 of the Rules of

18

Professional Conduct, but may make legal argument based on

19

relevant evidence that shall be subject to examination by the

20

parties.

21

(2)  A nonlawyer appointed as guardian ad litem may

<--

22

testify regarding and may submit a report regarding the

23

guardian ad litem's recommendation relating to the child's

24

best interest, which shall be subject to examination.

25

(e)  Costs.--The court may order a party to pay all or part

26

of the costs of appointing a guardian ad litem under this

27

section.

28

§ 5335.  Counsel for child.

29

(a)  Appointment.--The court may appoint counsel to represent

30

the child if the court determines that the appointment will

- 32 -

 


1

assist in resolving the issues in the custody proceeding. If a

<--

2

child has legal counsel and a guardian ad litem, counsel shall

3

represent the legal interests of the child and the guardian ad

4

litem shall represent the best interests of the child.

5

(b)  Abuse.--Substantial allegations of abuse of the child

6

constitute a reasonable basis for appointing counsel for the

7

child.

8

(c)  Not subject to examination.--Counsel appointed by the

9

court for the child shall not be subject to examination unless

10

such counsel testifies in the matter.

11

(d)  Costs.--The court may order a party to pay all or part

12

of the costs of appointing counsel for the child under this

13

section.

14

§ 5336.  Access to records and information.

15

(a)  General rule.--Except as provided in subsections (b) and

16

(c):

17

(1)  A party granted sole or shared legal custody under

18

section 5323 (relating to award of custody) shall be provided

19

access to:

20

(i)  the medical, dental, religious and school

21

records of the child;

22

(ii)  the address of the child and any other party;

23

and

24

(iii)  any other information that the court deems

25

necessary or proper.

26

(2)  Access to any records and information pertaining to

27

the child may not be denied solely based upon a parent's

28

physical custody schedule.

29

(3)  Upon request, a parent, party or entity possessing

30

any information set forth in paragraph (1) shall provide it

- 33 -

 


1

to any party granted sole or shared legal custody.

2

(b)  Nondisclosure of confidential information.--The court

3

shall not order the disclosure of any of the following

4

information to any parent or party granted custody:

5

(1)  The address of a victim of abuse.

6

(2)  Confidential information from an abuse counselor or

7

shelter.

8

(3)  Information protected under Chapter 67 (relating to

9

domestic and sexual violence victim address confidentiality).

10

(4)  Information independently protected from disclosure

11

by the child's right to confidentiality under the act of July

12

9, 1976 (P.L.817, No.143), known as the Mental Health

13

Procedures Act, or any other statute.

14

(c)  Other information.--The court may determine not to

15

release information set forth in subsection (a), in which case

16

it shall state the reason for its denial on the record.

17

§ 5337.  Relocation.

18

(a)  Applicability.--This section applies to any proposed

19

relocation.

20

(b)  General rule.--No relocation shall occur unless:

21

(1)  every individual who has custody rights to the child

22

consents to the proposed relocation; or

23

(2)  the court approves the proposed relocation.

24

(c)  Notice.--

25

(1)  The party proposing the relocation shall notify

26

every other individual who has custody rights to the child.

27

(2)  Reasonable notice Notice, sent by certified mail,

<--

28

return receipt requested, shall be given no later than:

29

(i)  the 60th day before the date of the proposed

30

relocation; or

- 34 -

 


1

(ii)  the tenth day after the date that the

2

individual knows of the relocation, if:

3

(A)  the individual did not know and could not

4

reasonably have known of the relocation in sufficient

5

time to comply with the 60-day notice; and

6

(B)  it is not reasonably possible to delay the

7

date of relocation so as to comply with the 60-day

8

notice.

9

(3)  Except as provided by section 5336 (relating to

10

access to records and information), the following

11

information, if available, must be included with the notice

12

of the proposed relocation:

13

(i)  The address of the intended new residence.

14

(ii)  The mailing address, if not the same as the

15

address of the intended new residence.

16

(iii)  Names and ages of the individuals in the new

<--

17

residence, including individuals who intend to live in

18

the new residence.

19

(iii)  (iv)  The home telephone number of the

<--

20

intended new residence, if available.

21

(iv)  (v)  The name of the new school district and

<--

22

school.

23

(v)  (vi)  The date of the proposed relocation.

<--

24

(vi)  (vii)  The reasons for the proposed relocation.

<--

25

(vii)  (viii)  A proposal for a revised custody

<--

26

schedule.

27

(viii)  (ix)  Any other information which the party

<--

28

proposing the relocation deems appropriate.

29

(x)  A counter-affidavit as provided under subsection

<--

30

(d)(1) which can be used to object to the proposed

- 35 -

 


1

relocation and the modification of a custody order.

2

(ix)  (xi)  A warning to the nonrelocating party that

<--

3

if the nonrelocating party does not file with the court

4

an objection to the proposed relocation within 30 days

5

after receipt of the notice, that party shall be

6

foreclosed from objecting to the relocation.

7

(4)  If any of the information set forth in paragraph (3)

8

is not known when the notice is sent but is later made known

9

to the party proposing the relocation, then that party shall

10

promptly inform every individual who received notice under

11

this subsection.

12

(d)  Objection to proposed relocation.--

13

(1)  A party entitled to receive notice may file with the

14

court an objection to the proposed relocation and seek a

15

temporary or permanent order to prevent the relocation. The

<--

16

nonrelocating party shall have the opportunity to indicate

17

whether he or she objects to relocation or not, and whether

18

he or she objects to modification of the custody order or

19

not. If the party objects to either relocation or

20

modification of the custody order, a hearing shall be held as

21

provided in subsection (g). The objection shall be made by

22

completing and returning to the court a counter-affidavit,

23

which shall be verified subject to penalties under 18 Pa.C.S.

24

§ 4904 (relating to unsworn falsification to authorities), in

25

substantially the following form:

26

COUNTER-AFFIDAVIT REGARDING RELOCATION

27

This proposal of relocation involves the following

28

child/children:

29

Child's Name

Age

Currently residing at:

30

......................

.................

.......................

- 36 -

 


1

Child's Name

Age

Currently residing at:

2

......................

.................

.......................

3

Child's Name

Age

Currently residing at:

4

......................

.................

.......................

5

I have received a notice of proposed relocation and

6

1. ....   I do not object to the relocation and I do not object

7

to the modification of the custody order consistent with the

8

proposal for revised custody schedule as attached to the notice.

9

2. ....   I do not object to the relocation, but I do object to

10

modification of the custody order, and I request that a hearing

11

be scheduled:

12

a.  ....  Prior to allowing (name of child/children) to

13

relocate.

14

b.  ....  After the child/children relocate.

15

3. ....   I do object to the relocation and I do object to the

16

modification of the custody order, and I further request that a

17

hearing be held on both matters prior to the relocation taking

18

place.

19

................................................................

20

I understand that in addition to checking (2) or (3) above, I

21

must also file this notice with the court in writing and serve

22

it on the other party by certified mail, return receipt

23

requested. If I fail to do so within 30 days of my receipt of

24

the proposed relocation notice, I shall be foreclosed from

25

objecting to the relocation.

26

................................................................

27

I verify that the statements made in this counter-affidavit are

28

true and correct. I understand that false statements herein are

29

made subject to the penalties of 18 Pa.C.S. § 4904 (relating to

30

unsworn falsification to authorities).

- 37 -

 


1

Date:

2

................................................................

3

................................................................

4

(2)  An objection made under this subsection shall be

5

filed with the court within 30 days of receipt of the

6

proposed relocation notice, and served on the other party by

<--

7

certified mail, return receipt requested.

8

(3)  If notice of the proposed relocation has been

9

properly given and no objection to the proposed relocation

10

has been filed in court, then it shall be presumed that the

11

nonrelocating party has consented to the proposed relocation.

12

(4)  If a party entitled to who has been given proper 

<--

13

notice does not file with the court an objection to the

14

relocation within 30 days after receipt of the notice but

15

later petitions the court for review of the custodial

16

arrangements, the court shall not accept testimony

17

challenging the relocation.

18

(e)  Confirmation of relocation.--If no objection to the

19

proposed relocation is filed under subsection (d), the party

20

proposing the relocation may shall file the following with the

<--

21

court prior to the relocation:

22

(1)  an affidavit stating that the party provided notice

23

to every individual entitled to notice, the time to file an

24

objection to the proposed relocation has passed and no

25

individual entitled to receive notice has filed an objection

26

to the proposed relocation;

27

(2)  Proof that proper notice was given in the form of a

<--

28

return receipt with the signature of the addressee and the

29

full notice that was sent to the addressee.

30

(2)  (3)  a petition to confirm the relocation and modify

<--

- 38 -

 


1

any existing custody order; and

2

(3)  (4)  a proposed order containing the information set

<--

3

forth in subsection (c)(3).

4

(f)  Modification of custody order.--If a counter-affidavit

<--

5

regarding relocation is filed with the court which indicates the

6

nonrelocating party both has no objection to the proposed

7

relocation and no objection to the modification of the custody

8

order consistent with the proposal for revised custody schedule,

9

the court may modify the existing custody order by approving the

10

proposal for revised custody schedule submitted under section

11

5337(c)(viii), and shall specify the method by which its future

12

modification can be made if desired by either party. If a

13

counter-affidavit regarding relocation is filed with the court

14

which indicates the nonrelocating party objects either to the

15

proposed relocation or to the modification of the custody order

16

consistent with the proposal for revised custody schedule, the

17

court shall modify the existing custody order only after holding

18

a hearing to establish the terms and conditions of the order

19

pursuant to the relocation indicating the rights, if any, of the

20

nonrelocating parties. The court shall determine whether such

21

hearing should occur expeditiously prior to the relocation of

22

the child or children, or whether it can be held at a date

23

following relocation.

24

(f)  (g)  Hearing.--

<--

25

(1)  The court shall hold an expedited full hearing on

26

the proposed relocation after a timely objection has been

27

filed and before the relocation occurs unless exigent

28

circumstances exist, in which case the relocation may occur

29

pending an expedited full hearing.

30

(2)  If the court approves the proposed relocation, it

- 39 -

 


1

shall:

2

(i)  modify any existing custody order; or

3

(ii)  establish the terms and conditions of a custody

4

order.

5

(g)  (h)  Relocation factors.--In determining whether to

<--

6

grant a proposed relocation, the court shall consider the

7

following factors, giving weighted consideration to those

8

factors which affect the safety of the child:

9

(1)  The nature, quality, extent of involvement and

10

duration of the child's relationship with the party proposing

11

to relocate and with the nonrelocating party, siblings and

12

other significant persons in the child's life.

13

(2)  The age, developmental stage, needs of the child and

14

the likely impact the relocation will have on the child's

15

physical, educational and emotional development, taking into

16

consideration any special needs of the child.

17

(3)  The feasibility of preserving the relationship

18

between the nonrelocating party and the child through

19

suitable custody arrangements, considering the logistics and

20

financial circumstances of the parties.

21

(4)  The child's preference, taking into consideration

22

the age and maturity of the child.

23

(5)  Whether there is an established pattern of conduct

24

of either party to promote or thwart the relationship of the

25

child and the other party.

26

(6)  Whether the relocation will enhance the general

27

quality of life for the party seeking the relocation,

28

including, but not limited to, financial or emotional benefit

29

or educational opportunity.

30

(7)  Whether the relocation will enhance the general

- 40 -

 


1

quality of life for the child, including, but not limited to,

2

financial or emotional benefit or educational opportunity.

3

(8)  The reasons and motivation of each party for seeking

4

or opposing the relocation.

5

(9)  The present and past abuse committed by a party or

6

member of the party's household and whether there is a

7

continued risk of harm to the child or an abused party.

8

(10)  Any other factor affecting the best interest of the

9

child.

10

(h)  (i)  Burden of proof.--

<--

11

(1)  The party proposing the relocation has the burden of

12

establishing that the relocation will serve the best interest

13

of the child as shown under the factors set forth in

14

subsection (g).

15

(2)  Each party has the burden of establishing the

16

integrity of that party's motives in either seeking the

17

relocation or seeking to prevent the relocation.

18

(i)  (j)  Failure to provide reasonable notice.--The court

<--

19

may consider a failure to provide reasonable notice of a

20

proposed relocation as:

21

(1)  a factor in making a determination regarding the

22

relocation;

23

(2)  a factor in determining whether custody rights

24

should be modified;

25

(3)  a basis for ordering the return of the child to the

26

nonrelocating party if the relocation has occurred without

27

reasonable notice;

28

(4)  sufficient cause to order the party proposing the

29

relocation to pay reasonable expenses and counsel fees

30

incurred by the party objecting to the relocation; and

- 41 -

 


1

(5)  a ground for contempt and the imposition of

2

sanctions against the party proposing the relocation.

3

(j)  (k)  Mitigation.--Any consideration of a failure to

<--

4

provide reasonable notice under subsection (i) shall be subject

5

to mitigation if the court determines that such failure was

6

caused in whole, or in part, by abuse.

7

(k)  (l)  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 order to serve the best interest of the child.

14

(b)  Applicability.--This section shall apply to any custody

15

order entered by a court of this Commonwealth or any other state

16

subject to the jurisdictional requirements set forth in Chapter

17

54 (relating to uniform child custody jurisdiction and

18

enforcement).

19

§ 5339.  Award of counsel fees, costs and expenses.

20

Under this chapter, a court may award reasonable interim or

21

final counsel fees, costs and expenses to a party if the court

22

finds that the conduct of another party was obdurate, vexatious,

23

repetitive or in bad faith.

24

§ 5340.  Court-appointed child custody health care or behavioral

25

health practitioners.

26

No party to a child custody matter in which the court has

27

appointed a licensed health care or behavioral health

28

practitioner to assist the court by conducting an examination or

29

evaluation of the parties involved or making a recommendation

30

concerning a child custody agreement or order may be permitted

- 42 -

 


1

to file a complaint against the practitioner with the

2

practitioner's State licensing board prior to the final

3

agreement or order being issued and for 60 days thereafter. As

4

used in this section, "licensed health care or behavioral health

5

practitioner" means a person who is licensed, certified,

6

accredited or otherwise regulated by the Commonwealth to provide

7

health care or behavioral health services.

8

Section 3.  Section 1904(b), (c) and (h) of Title 42 are

9

amended to read:

10

§ 1904.  Availability of criminal charge information in child

11

custody proceedings.

12

* * *

13

(b)  Criminal charges enumerated.--The criminal charge

14

information that shall be available on the information system

15

shall be limited to the offenses listed in 23 Pa.C.S. § 

16

[5303(b.1)(2) (relating to award of custody, partial custody or

17

visitation)] 5329(a) (relating to consideration of criminal

18

conviction).

19

(c)  Application for access to criminal charge information.--

20

To obtain information about charges covered in 23 Pa.C.S. § 

21

[5303(b.1)(2)] 5329(a), a parent who has been awarded custody[,] 

22

or partial custody [or visitation] or who is a party to a

23

custody proceeding must file an application for access to the

24

information with the office of the prothonotary in the county

25

where the proceeding or order was filed.

26

(1)  A person who knowingly gives false information with

27

the intent to gain information provided for under this

28

section commits an offense under 18 Pa.C.S. § 4904(a) 

29

(relating to unsworn falsification to authorities).

30

(2)  The application must be filed with the prothonotary

- 43 -

 


1

by one of the following methods:

2

(i)  In person, at the office of the prothonotary, by

3

the parent who is filing the application. The applicant

4

must have a valid form of photoidentification available

5

for the inspection of the prothonotary.

6

(ii)  By mailing a notarized application using first

7

class mail.

8

(iii)  By including the application with the original

9

complaint, initial response or any other pleading or

10

motion filed with the prothonotary.

11

(3)  The Administrative Office shall develop the

12

application for access to the criminal charge information

13

system. The following information shall be included in the

14

application:

15

(i)  Docket number of original court filing.

16

(ii)  Date of filing.

17

(iii)  Date of birth of all children involved in the

18

custody proceeding or order.

19

(iv)  A personal access code.

20

(v)  A notice to the parent that additional

21

information relating to criminal history record

22

information is available, as provided for in 18 Pa.C.S.

23

Ch. 91 (relating to criminal history record information).

24

(vi)  A statement verifying that:

25

(A)  the person who is filing for access to the

26

criminal charge information system is the actual

27

person listed on the application;

28

(B)  to the best of the applicant's knowledge and

29

belief, all the information included in the

30

application is true and correct; and

- 44 -

 


1

(C)  the applicant is a party to the custody

2

proceeding or order that is listed on the

3

application.

4

(vii)  A warning as to the penalty under 18 Pa.C.S. §

5

4904.

6

(viii)  Any additional information that it is

7

determined to be necessary to expedite the verification

8

of the application and to provide access to the system,

9

as determined by the Administrative Office.

10

(4)  Applications shall be made available through county

11

prothonotaries.

12

* * *

13

(h)  Information available to parent.--

14

(1)  After applying and qualifying to obtain the criminal

15

charge information provided by the system, a parent may

16

request information by telephone as to whether the other

17

parent has been charged with any offense listed in 23 Pa.C.S.

18

§ [5303(b.1)(2)] 5329(a).

19

(2)  The parent shall also be entitled to criminal

20

history record information as provided for in 18 Pa.C.S. Ch.

21

91, and the parent shall be informed of the availability.

22

(3)  Criminal charge information shall be retained on the

23

system for the period of time as provided for the retention

24

of criminal charges and records under 18 Pa.C.S. Ch. 91 and 

25

then only until the youngest child involved in the custody

26

proceeding or order reaches 18 years of age. At no time shall

27

information be retained on the system beyond what is

28

permitted under 18 Pa.C.S. Ch. 91.

29

* * *

30

Section 4.  A proceeding under the former provisions of 23

- 45 -

 


1

Pa.C.S. Ch. 53 which was commenced before the effective date of

2

this section shall be governed by the law in effect at the time

3

the proceeding was initiated.

4

Section 5.  This act shall take effect in 60 days.

- 46 -