A00994
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
78
Session of
2021
INTRODUCED BY BAKER, SANTARSIERO, VOGEL, KEARNEY, FONTANA,
BARTOLOTTA, COLLETT, HUGHES, MARTIN, YUDICHAK, BLAKE, COSTA,
SCHWANK, BROWNE, PHILLIPS-HILL, MENSCH, YAW AND MUTH,
JANUARY 22, 2021
REFERRED TO JUDICIARY, JANUARY 22, 2021
AN ACT
Amending Titles 23 (Domestic Relations) and 42 (Judiciary and
Judicial Procedure) of the Pennsylvania Consolidated
Statutes, in child custody, further providing for
definitions, for award of custody, for factors to consider
when awarding custody, for consideration of criminal
conviction, for guardian ad litem for child, for counsel for
child and for award of counsel fees, costs and expenses; and,
in Administrative Office of Pennsylvania Courts, providing
for child abuse and domestic abuse education and training
program for judges and court personnel.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. The General Assembly finds and declares as
follows:
(1) The Commonwealth has a duty to protect all children
in this Commonwealth and all three branches of the State
government play important roles in fulfilling that duty.
(2) Domestic abuse is a pattern of abuse within the
family or household and can include abuse of a partner,
spouse, child or pet.
(3) Although abusers often use physical violence as one
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of the tactics to commit domestic abuse, these tactics are
not necessarily physical or illegal.
(4) These tactics can include verbal, emotional,
psychological and economic abuse, isolation, threats,
controlling behaviors, monitoring, litigation abuse and
threats to seek or demands for custody or joint custody to
pressure the partner to return or punish the partner for
leaving.
(5) The health and safety of all children in this
Commonwealth must be the first priority in all decisions
concerning child custody.
(6) It is the intent of the General Assembly to ensure
that in all cases and controversies before the courts
involving questions of child custody, the health, safety and
welfare of the child are protected and regarded as issues of
paramount importance.
Section 2. The definition of "abuse" in section 5322(a) of
Title 23 of the Pennsylvania Consolidated Statutes is amended
and the subsection is amended by adding definitions to read:
§ 5322. Definitions.
(a) This chapter.--The following words and phrases when used
in this chapter shall have the meanings given to them in this
subsection unless the context clearly indicates otherwise:
"Abuse." As follows:
(1) As defined in section 6102 (relating to definitions)
[.] and the term includes the crime of stalking pursuant to
18 Pa.C.S. § 2709.1 (relating to stalking).
(2) The term does not include the justified use of force
in self-protection or for the protection of other persons in
accordance with 18 Pa.C.S. § 505 (relating to use of force in
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self-protection) by a party in response to abuse or domestic
abuse by the other party.
* * *
"Health and safety of the child." The term includes, but is
not limited to, the physical, emotional and psychological well-
being of the child.
"Household member." A spouse or an individual who has been a
spouse, an individual living as a spouse or who lived as a
spouse, a parent or child, another individual related by
consanguinity or affinity, a current or former sexual or
intimate partner or an individual who shares biological
parenthood, currently sharing a household with the child or a
party.
* * *
"Nonprofessional supervised physical custody." Custodial
time during which an agency or an adult , who is not a licensed
professional , designated by the court or agreed upon by the
parties, monitors the interaction between the child and the
individual with those rights.
"Professional supervised physical custody." Custodial time
during which a licensed professional monitors , with education
and training on the dynamics of domestic violence, sexual
assault, child abuse and the impact of domestic violence on
children, oversees the interaction between the child and the
individual with those custody rights and promotes the child's
health and safety of the child during the interaction.
* * *
"Temporary housing instability." A period not to exceed six
months from the date of the last incident of abuse as determined
by a court.
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Section 3. Section 5323(e) of Title 23 is amended and the
section is amended by adding subsections to read:
§ 5323. Award of custody.
* * *
(e) Safety conditions.--After considering the factors under
[section 5328(a)(2)] sections 5328, 5329 (relating to
consideration of criminal conviction), 5329.1 (relating to
consideration of child abuse and involvement with protective
services) and 5330 (relating to consideration of criminal
charge), if the court finds [that there is an ongoing] a history
of abuse of the child or a household member by a party or a
present risk of harm to the child or an abused party and awards
any form of custody to a party who committed the abuse or who
has a household member who committed the abuse, the court shall
include in the custody order safety conditions [designed],
restrictions or safeguards as reasonably necessary to protect
the child or the abused party[.], including: The court shall
include in the custody order the reason for imposing the safety
conditions, restrictions or safeguards and an explanation why
the safety conditions, restrictions or safeguards are in the
best interest of the child or the abused party. If supervised
contact is ordered, there shall be a review of the risk of harm
and need for continued supervision on at least an annual basis.
The safety conditions, restrictions or safeguards may include
any of the following:
(1) Nonprofessional supervised physical custody.
(2) Professional supervised physical custody.
(3) Limitations on the time of day that physical custody
is permitted or on the number of hours of physical custody
and the maximum number of hours of physical custody permitted
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per day or per week.
(4) Appoint a qualified professional specializing in
treatment relating to the history of abuse or risk of harm to
provide counseling. Counseling may include a program of
treatment or individual therapy designed to rehabilitate the
offending individual, which includes issues regarding
physical or sexual abuse, domestic abuse, the psychology of
the offender and the effects of abuse on the victim and the
child. If counseling is ordered the court may require an
evaluation by the appointed qualified professional to
determine whether further counseling of the offender is
necessary. The appointment of a qualified professional
specializing in programming relating to the history of abuse
or risk of harm to provide batterer's intervention or harm
prevention programming. Batterer's intervention and harm
prevention programming may include programming designed to
rehabilitate the offending individual, including prioritizing
a batterer's intervention or harm prevention program, if
available, or the impacts of physical, sexual or domestic
abuse on the victim. The court may order an evaluation by the
appointed qualified professional under this paragraph to
determine whether additional programming is necessary.
(5) Limitations on legal custody.
(6) Any other safety condition, restriction or safeguard
as necessary to ensure the health and safety of the child or
to protect a household member .
(e.1) Supervision.--If a court finds by a preponderance of
the evidence that a party has subjected abused the child or any
household member to abuse, the court shall be presumed to , there
shall be a rebuttable presumption that the court shall only
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allow nonprofessional supervised physical custody or
professional supervised physical custody between the child and
the party who committed the abuse unless the court makes a
finding on the record that it finds by a preponderance of the
evidence that the party no longer poses a risk of abuse to the
child or any other household member and that another custody
arrangement is in the best interest of the child and will not
cause physical, emotional or psychological harm to the child. . A
court may find that an indicated report for physical or sexual
abuse under Chapter 63 (relating to child protective services)
is a basis for a finding of abuse under this subsection only
after a de novo review of the circumstances leading to the
indicated report. Notwithstanding the provisions of this
subsection, the court may award an alternative form of custody
if the court finds by a preponderance of the evidence that:
(1) the party no longer poses a risk of abuse to the
child or any other household member; and
(2) another custody arrangement is in the best interest
of the child and will not jeopardize the health and safety of
the child.
(e.2) Professional supervision.--If a court finds by a
preponderance of the evidence that there is an ongoing risk of
abuse of the child, the court shall be presumed to there shall
be a rebuttable presumption that the court shall only allow
professional supervised physical custody between the child and
the party who committed the abuse unless the court makes a
finding on the record that it finds by a preponderance of the
evidence that the party no longer poses a risk of abuse to the
child or any other household member and that another custody
arrangement is in the best interest of the child and will not
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cause physical, emotional or psychological harm to the child.
poses the risk of abuse. A court may find that an indicated
report for physical or sexual abuse under Chapter 63 is a basis
for a finding of abuse under this subsection only after a de
novo review of the circumstances leading to the indicated
report. Notwithstanding the provisions of this subsection, the
court may award an alternative form of custody if the court
finds by a preponderance of the evidence that:
(1) the party no longer poses a risk of abuse to the
child or any other household member; and
(2) another custody arrangement is in the best interest
of the child and will not jeopardize the health and safety of
the child.
* * *
Section 4. Section 5328(a) of Title 23 is amended and the
section is amended by adding a subsection to read:
§ 5328. Factors to consider when awarding custody.
(a) Factors.--In ordering any form of custody, the court
shall determine the best interest of the child by considering
all relevant factors, giving weighted consideration to those
factors which affect the health and safety of the child,
including the following:
(1) Which party is more likely to ensure the health and
safety of the child.
[(1)) Which party is more likely to encourage and permit
frequent and continuing contact between the child and another
party.]
(1) Which party is more likely to ensure the health and
safety of the child.
(2) The present and past abuse committed by a party or
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member of the party's household.[, whether there is a
continued risk of harm to the child or an abused party and
which party can better provide adequate physical safeguards
and supervision of the child.]
(2.1) The information set forth in section 5329.1(a)
(relating to consideration of child abuse and involvement
with protective services).
(2.2) Violent or assaultive behavior committed by a
party, including past or current protection from abuse and
sexual violence abuse protection orders where there has been
a finding of abuse .
(2.3) Which party is more likely to encourage and permit
frequent and continuing contact between the child and another
party if contact is consistent with the health and safety
needs of the child.
(2.4) The existence of a protection from abuse order
entered on consent of the parties, with no admission or
finding of abuse, if, upon review of the facts presented at
the custody hearing, the court finds that abuse occurred.
(3) The present and past parental [duties] and caretaker
duties performed by each party on behalf of the child.
(4) The need for stability and continuity in the child's
education, family life and community life except if changes
are necessary to protect the health and safety of the child
or a party.
(5) The availability of extended family.
(6) The child's sibling relationships.
(7) The well-reasoned preference of the child, based on
the child's developmental stage, maturity and judgment. In
assessing the factor under this paragraph, if the court finds
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that the child's fear of a party is based on the party's
actual and specific conduct that is contrary to the child's
best interest , the finding shall be considered well-reasoned .
(8) The attempts of a [parent] party to turn the child
against the other [parent] party, except in cases of abuse
abuse [domestic violence] where reasonable safety measures
are necessary to protect the health and safety of the child
from harm. A party's reasonable concerns for a child's health
and welfare and the party's reasonable efforts to protect the
child shall not be considered attempts to turn the child
against the other party. A child's deficient or negative
relationship with a party shall not be presumed to be caused
by the other party.
A party's reasonable concerns for a child's health
and welfare and the party's reasonable efforts to protect
the child shall not be considered attempts to turn the
child against the other party. A child's deficient or
negative relationship with a party shall not be presumed
to be caused by the other party.
(9) Which party is more likely to maintain a loving,
stable, consistent and nurturing relationship with the child
adequate for the child's emotional needs.
(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and special
needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party's availability to care for the child or
ability to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with one
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another. A party's effort to protect a child or self from
abuse by another party is not evidence of unwillingness or
inability to cooperate with that party.
(14) The history of drug or alcohol abuse of a party or
member of a party's household.
(15) The mental and physical condition of a party or
member of a party's household.
(16) Any other relevant factor.
(a.1) Exception.-- None of the factors in A factor under
subsection (a) shall not be adversely weighed against a party if
that party or the child was subjected to abuse by the other
party. the circumstances related to the factor were in response
to abuse or necessary to protect the child or the abused party
from harm and the party alleging abuse does not pose a risk to
the health and safety of the child at the time of the custody
hearing. Temporary housing instability as a result of abuse
shall not be considered against the party alleging abuse.
(a.2) Determination.--No single factor under subsection
(a) shall by itself be determinative in the awarding of custody.
The court shall examine the totality of the circumstances,
giving weighted consideration to the factors that affect the
health and safety of the child, when issuing a custody order
that is in the best interest of the child.
* * *
Section 5. Section 5329(a) of Title 23, amended June 5, 2020
(P.L.246, No.32), is amended and the section is amended by
adding a subsection to read:
§ 5329. Consideration of criminal conviction.
(a) Offenses.--Where a party seeks any form of custody, the
court shall consider whether that party or member of that
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party's household has been convicted of or has pleaded guilty or
no contest to any of the offenses in this section or an offense
in another jurisdiction substantially equivalent to any of the
offenses in this section. The court shall consider such conduct
and determine that the party does not pose a threat of harm to
the child before making any order of custody to that party when
considering the following offenses:
18 Pa.C.S. Ch. 25 (relating to criminal homicide).
18 Pa.C.S. § 2701 (relating to simple assault).
18 Pa.C.S. § 2702 (relating to aggravated assault).
18 Pa.C.S. § 2705 (relating to recklessly endangering another
person).
18 Pa.C.S. § 2706 (relating to terroristic threats).
18 Pa.C.S. § 2709.1 (relating to stalking).
18 Pa.C.S. § 2718 (relating to strangulation).
18 Pa.C.S. § 2901 (relating to kidnapping).
18 Pa.C.S. § 2902 (relating to unlawful restraint).
18 Pa.C.S. § 2903 (relating to false imprisonment).
18 Pa.C.S. § 2910 (relating to luring a child into a motor
vehicle or structure).
18 Pa.C.S. § 3011 (relating to trafficking in individuals).
18 Pa.C.S. § 3012 (relating to involuntary servitude).
18 Pa.C.S. § 3013 (relating to patronizing a victim of sexual
servitude).
18 Pa.C.S. § 3121 (relating to rape).
18 Pa.C.S. § 3122.1 (relating to statutory sexual assault).
18 Pa.C.S. § 3123 (relating to involuntary deviate sexual
intercourse).
18 Pa.C.S. § 3124.1 (relating to sexual assault).
18 Pa.C.S. § 3125 (relating to aggravated indecent assault).
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18 Pa.C.S. § 3126 (relating to indecent assault).
18 Pa.C.S. § 3127 (relating to indecent exposure).
18 Pa.C.S. § 3129 (relating to sexual intercourse with
animal).
18 Pa.C.S. § 3130 (relating to conduct relating to sex
offenders).
18 Pa.C.S. § 3301 (relating to arson and related offenses).
18 Pa.C.S. § 4302 (relating to incest).
18 Pa.C.S. § 4303 (relating to concealing death of child).
18 Pa.C.S. § 4304 (relating to endangering welfare of
children).
18 Pa.C.S. § 5533 (relating to cruelty to animal).
18 Pa.C.S. § 5534 (relating to aggravated cruelty to animal).
18 Pa.C.S. § 5543 (relating to animal infighting fighting ).
18 Pa.C.S. § 5544 (relating to possession of animal fighting
paraphernalia).
18 Pa.C.S. § 4305 (relating to dealing in infant children).
18 Pa.C.S. § 5902(b) (relating to prostitution and related
offenses).
18 Pa.C.S. § 5903(c) or (d) (relating to obscene and other
sexual materials and performances).
18 Pa.C.S. § 6301 (relating to corruption of minors).
18 Pa.C.S. § 6312 (relating to sexual abuse of children).
18 Pa.C.S. § 6318 (relating to unlawful contact with minor).
18 Pa.C.S. § 6320 (relating to sexual exploitation of
children).
Section 6114 (relating to contempt for violation of order or
agreement).
The former 75 Pa.C.S. § 3731 (relating to driving under
influence of alcohol or controlled substance).
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75 Pa.C.S. Ch. 38 (relating to driving after imbibing alcohol
or utilizing drugs).
Section 13(a)(1) of the act of April 14, 1972 (P.L.233,
No.64), known as The Controlled Substance, Drug, Device and
Cosmetic Act, to the extent that it prohibits the manufacture,
sale or delivery, holding, offering for sale or possession of
any controlled substance or other drug or device.
(a.1) Determination.--A criminal conviction specified under
subsection (a) shall not by itself be determinative in the
awarding of custody. The court shall examine the totality of the
circumstances when issuing a custody order that is in the best
interest of the child.
* * *
Section 6. Sections 5334(c), 5335(b) and 5339 of Title 23
are amended to read:
Section 6. Section 5334(c) of Title 23 is amended and the
section is amended by adding a subsection to read:
§ 5334. Guardian ad litem for child.
* * *
(c) Abuse.--If substantial allegations of abuse [of the
child] are made, the court [shall] may appoint a guardian ad
litem for the child if:
(1) counsel for the child is not appointed under section
5335 (relating to counsel for child); [or] and
(2) the court is satisfied that the relevant information
will be presented to the court only with such appointment[.];
or
(3) a guardian ad litem appointed under this section
shall establish that the guardian ad litem received education
and training under the program specified under 42 Pa.C.S. §
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1908 (relating to child abuse and domestic abuse education
and training program for judges and court personnel) or
substantially similar training prior to appointment.
* * *
(f) Education and training.--A court appointing a guardian
ad litem under this section shall make reasonable efforts to
appoint a guardian ad litem who received evidence-based
education and training relating to child abuse, including child
sexual abuse, domestic abuse education and the effect of child
sexual abuse and domestic abuse on children.
Section 7. Sections 5335(b) and 5339 of Title 23 are amended
to read:
§ 5335. Counsel for child.
* * *
(b) Abuse.--Substantial allegations of abuse [of the child]
constitute a reasonable basis for appointing counsel for the
child.
* * *
§ 5339. Award of counsel fees, costs and expenses.
(a) Award.--Under this chapter, a court may award reasonable
interim or final counsel fees, costs and expenses to a party if
the court finds that the conduct of another party was obdurate,
vexatious[,] or repetitive [or in bad faith]. This section may
not apply if that party engaged the judicial process in good
faith to protect the child from harm.
(b) Other costs.--The court may direct that a party who has
been found to have perpetrated abuse to pay all or a portion of
the fees, costs and expenses incurred by the other party,
including attorney fees, costs relating to any counsel for the
child and treatment expenses incurred relating to the abuse,
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including fees associated with any form of supervised physical
custody.
Section 7 8. Title 42 is amended by adding a section to
read:
§ 1908. Child abuse and domestic abuse education and training
program for judges and court personnel.
The Administrative Office of Pennsylvania Courts may develop
and implement an ongoing education and training program for
judges, magisterial district judges and relevant court
personnel, including guardians ad litem, counsel for children,
masters and mediators, regarding child abuse, which includes all
aspects of maltreatment, including sexual abuse, physical abuse,
emotional abuse, implicit and explicit bias, trauma and neglect
and the impact of child abuse and domestic violence on children.
The education and training program shall include the latest best
practices from evidence-based and peer-reviewed research by
recognized experts in the types of abuse designated under this
section. The education and training program shall be designed to
improve the ability of courts to recognize and respond to the
impact of child abuse, domestic abuse and trauma on all victims,
specifically children, and make appropriate custody decisions
that are in the best interest of the child.
(a) Program.--The Administrative Office of Pennsylvania
Courts may develop and implement an ongoing education and
training program for judges, magisterial district judges and
relevant court personnel, including guardians ad litem, counsel
for children, masters and mediators regarding child abuse. The
education and training program shall include all aspects of the
maltreatment of children, including all of the following:
(1) Sexual abuse.
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(2) Physical abuse.
(3) Implicit and explicit bias.
(4) Trauma and neglect.
(5) The impact of child abuse and domestic violence on
children.
(b) Best practices.--The education and training program
under subsection (a) shall include the latest best practices
from evidence-based, peer-reviewed research by recognized
experts in the types of child abuse specified under subsection
(a). The Administrative Office of Pennsylvania Courts shall
design the education and training program under subsection (a)
to educate and train relevant court personnel on all of the
factors listed under 23 Pa.C.S. § 5328(a) (relating to factors
to consider when awarding custody) and improve the ability of
courts to make appropriate custody decisions that are in the
best interest of the child, including education and training
regarding the impact of child abuse, domestic abuse and trauma
on a victim, specifically a child, and situations when one party
attempts to turn a child against another party.
Section 8 9. This act shall take effect in 60 120 days.
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