HOUSE AMENDED
PRIOR PRINTER'S NOS. 64, 1108, 1150 PRINTER'S NO. 1951
No. 74 Session of 2005
INTRODUCED BY GREENLEAF, RAFFERTY, WONDERLING, KITCHEN,
TARTAGLIONE AND BOSCOLA, JANUARY 31, 2005
AS REPORTED FROM COMMITTEE ON JUDICIARY, HOUSE OF
REPRESENTATIVES, AS AMENDED, JUNE 27, 2006
AN ACT
1 Amending Titles 23 (Domestic Relations) and 42 (Judiciary and
2 Judicial Procedure) of the Pennsylvania Consolidated
3 Statutes, further providing for contempt for noncompliance
4 with visitation or partial custody order and for child
5 custody; and making conforming amendments.
6 The General Assembly of the Commonwealth of Pennsylvania
7 hereby enacts as follows:
8 Section 1. Section 4346, Chapter 53 and Subchapter A
9 headings and sections 5301, 5302, 5303, 5304, 5305, 5306, 5307,
10 5308, 5309, 5310, 5311, 5312, 5313 and 5314 of Title 23 of the
11 Pennsylvania Consolidated Statutes are amended to read:
12 [§ 4346. Contempt for noncompliance with visitation or partial
13 custody order.
14 (a) General rule.--A party who willfully fails to comply
15 with any visitation or partial custody order may, as prescribed
16 by general rule, be adjudged in contempt. Contempt shall be
17 punishable by any one or more of the following:
18 (1) Imprisonment for a period not to exceed six months.
1 (2) A fine not to exceed $500.
2 (3) Probation for a period not to exceed six months.
3 (4) An order for nonrenewal, suspension or denial of
4 operating privilege pursuant to section 4355 (relating to
5 denial or suspension of licenses).
6 (b) Condition for release.--An order committing a person to
7 jail under this section shall specify the condition which, when
8 fulfilled, will result in the release of the obligor.
9 CHAPTER 53
10 CUSTODY
11 SUBCHAPTER A
12 GENERAL PROVISIONS
13 § 5301. Declaration of policy.
14 The General Assembly declares that it is the public policy of
15 this Commonwealth, when in the best interest of the child, to
16 assure a reasonable and continuing contact of the child with
17 both parents after a separation or dissolution of the marriage
18 and the sharing of the rights and responsibilities of child
19 rearing by both parents and continuing contact of the child or
20 children with grandparents when a parent is deceased, divorced
21 or separated.
22 § 5302. Definitions.
23 The following words and phrases when used in this subchapter
24 shall have the meanings given to them in this section unless the
25 context clearly indicates otherwise:
26 "Child." Any unemancipated person under 18 years of age.
27 "Legal custody." The legal right to make major decisions
28 affecting the best interest of a minor child, including, but not
29 limited to, medical, religious and educational decisions.
30 "Partial custody." The right to take possession of a child
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1 away from the custodial parent for a certain period of time.
2 "Physical custody." The actual physical possession and
3 control of a child.
4 "Shared custody." An order awarding shared legal or shared
5 physical custody, or both, of a child in such a way as to assure
6 the child of frequent and continuing contact with and physical
7 access to both parents.
8 "Visitation." The right to visit a child. The term does not
9 include the right to remove a child from the custodial parent's
10 control.
11 § 5303. Award of custody, partial custody or visitation.
12 (a) General rule.--
13 (1) In making an order for custody or partial custody,
14 the court shall consider the preference of the child as well
15 as any other factor which legitimately impacts the child's
16 physical, intellectual and emotional well-being.
17 (2) In making an order for custody, partial custody or
18 visitation to either parent, the court shall consider, among
19 other factors, which parent is more likely to encourage,
20 permit and allow frequent and continuing contact and physical
21 access between the noncustodial parent and the child.
22 (3) The court shall consider each parent and adult
23 household member's present and past violent or abusive
24 conduct which may include, but is not limited to, abusive
25 conduct as defined under the act of October 7, 1976
26 (P.L.1090, No.218), known as the Protection From Abuse Act.
27 (b) Consideration of criminal conviction.--If a parent has
28 been convicted of or has pleaded guilty or no contest to an
29 offense as set forth below, the court shall consider such
30 criminal conduct and shall determine that the parent does not
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1 pose a threat of harm to the child before making an order of
2 custody, partial custody or visitation to that parent:
3 (1) 18 Pa.C.S. Ch. 25 (relating to criminal homicide);
4 (2) 18 Pa.C.S. § 2901 (relating to kidnapping);
5 (3) 18 Pa.C.S. § 2902 (relating to unlawful restraint);
6 (4) 18 Pa.C.S. § 3121 (relating to rape);
7 (5) 18 Pa.C.S. § 3122.1 (relating to statutory sexual
8 assault);
9 (6) 18 Pa.C.S. § 3123 (relating to involuntary deviate
10 sexual intercourse);
11 (7) 18 Pa.C.S. § 3124.1 (relating to sexual assault);
12 (8) 18 Pa.C.S. § 3125 (relating to aggravated indecent
13 assault);
14 (9) 18 Pa.C.S. § 3126 (relating to indecent assault);
15 (10) 18 Pa.C.S. § 3127 (relating to indecent exposure);
16 (11) 18 Pa.C.S. § 4302 (relating to incest);
17 (12) 18 Pa.C.S. § 4304 (relating to endangering welfare
18 of children);
19 (13) 18 Pa.C.S. § 5902(b) (relating to prostitution and
20 related offenses); or
21 (14) 18 Pa.C.S. § 6312 (relating to sexual abuse of
22 children).
23 (b.1) Consideration of criminal charge.--
24 (1) A parent who has obtained information under 42
25 Pa.C.S. § 1904 (relating to availability of criminal charge
26 information in child custody proceedings) of the charge filed
27 against the other parent for an offense listed in paragraph
28 (2) may move for a temporary custody order or to modify an
29 existing custody, partial custody or visitation order. The
30 temporary custody or modification hearing shall be scheduled
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1 expeditiously.
2 (2) In evaluating any request for temporary custody or
3 modification of a custody, partial custody or visitation
4 order, the court shall consider whether the parent who is or
5 has been charged with an offense listed below poses a risk of
6 harm to the child:
7 (i) 18 Pa.C.S. Ch. 25;
8 (ii) 18 Pa.C.S. § 2702 (relating to aggravated
9 assault);
10 (iii) 18 Pa.C.S. § 2706 (relating to terroristic
11 threats);
12 (iv) 18 Pa.C.S. § 2709.1 (relating to stalking);
13 (v) 18 Pa.C.S. § 2901;
14 (vi) 18 Pa.C.S. § 2902;
15 (vii) 18 Pa.C.S. § 2903 (relating to false
16 imprisonment);
17 (viii) 18 Pa.C.S. § 3121;
18 (ix) 18 Pa.C.S. § 3122.1;
19 (x) 18 Pa.C.S. § 3123;
20 (xi) 18 Pa.C.S. § 3124.1;
21 (xii) 18 Pa.C.S. § 3125;
22 (xiii) 18 Pa.C.S. § 3126;
23 (xiv) 18 Pa.C.S. § 3127;
24 (xv) 18 Pa.C.S. § 3301 (relating to arson and
25 related offenses);
26 (xvi) 18 Pa.C.S. § 4302;
27 (xvii) 18 Pa.C.S. § 4304;
28 (xviii) 18 Pa.C.S. § 6312; and
29 (xix) 23 Pa.C.S. § 6114 (relating to contempt for
30 violation of order or agreement).
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1 (3) Failure to apply for information under 42 Pa.C.S. §
2 1904 or to act under this subsection shall not prejudice any
3 parent in a custody or visitation proceeding.
4 (b.2) Parent convicted of murder.--No court shall award
5 custody, partial custody or visitation to a parent who has been
6 convicted of murder under 18 Pa.C.S. § 2502(a) (relating to
7 murder of the first degree) of the other parent of the child who
8 is the subject of the order, unless the child is of suitable age
9 and consents to the order.
10 (c) Counseling.--In making a determination to award custody,
11 partial custody or visitation pursuant to subsection (b), the
12 court shall appoint a qualified professional to provide
13 counseling to an offending parent described in subsection (b)
14 and shall take testimony from that professional regarding the
15 provision of such counseling prior to issuing any order of
16 custody, partial custody or visitation. Counseling, required in
17 accordance with this subsection, shall include a program of
18 treatment or individual therapy designed to rehabilitate a
19 parent which addresses, but is not limited to, issues regarding
20 physical and sexual abuse, domestic violence, the psychology of
21 the offender and the effects of abuse on the victim. If the
22 court awards custody, partial custody or visitation to an
23 offending parent described in subsection (b), the court may
24 require subsequent periodic counseling and reports on the
25 rehabilitation of the offending parent and the well-being of the
26 child following an order relating to custody, partial custody or
27 visitation. If, upon review of a subsequent report or reports,
28 the court determines that the offending parent poses a threat of
29 harm to the child, the court may schedule a hearing and modify
30 the order of custody or visitation to protect the well-being of
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1 the child.
2 (d) Sole custody.--The court shall award sole custody when
3 it is in the best interest of the child.
4 § 5304. Award of shared custody.
5 An order for shared custody may be awarded by the court when
6 it is in the best interest of the child:
7 (1) upon application of one or both parents;
8 (2) when the parties have agreed to an award of shared
9 custody; or
10 (3) in the discretion of the court.
11 § 5305. Counseling.
12 (a) General rule.--The court may require the parents to
13 attend counseling sessions and may consider the recommendations
14 of the counselors prior to awarding sole or shared custody.
15 These counseling sessions may include, but shall not be limited
16 to, discussions of the responsibilities and decisionmaking
17 arrangements involved in both sole and shared custody and the
18 suitability of each arrangement to the capabilities of each
19 parent or both parents.
20 (b) Temporary custody.--The court may temporarily award
21 custody to either parent or both parents pending resolution of
22 any counseling.
23 (c) Report.--The court may require the counselor to submit a
24 report if the court desires and within such reasonable time as
25 the court determines.
26 § 5306. Plan for implementation of custody order.
27 The court, in its discretion, may require the parents to
28 submit to the court a plan for the implementation of any custody
29 order made under this subchapter. Upon the request of either
30 parent or the court, the domestic relations section of the court
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1 or other party or agency approved by the court shall assist in
2 the formulation and implementation of the plan.
3 § 5307. Denial of custody under agreement or plan.
4 When the court declines to enter an order awarding custody
5 either as agreed to by the parents or under the plan developed
6 by the parents, the court shall state its reasons for denial on
7 the record.
8 § 5308. Removal of party or child from jurisdiction.
9 If either party intends to or does remove himself or the
10 child from this Commonwealth after a custody order has been
11 made, the court, on its own motion or upon motion of either
12 party, may review the existing custody order.
13 § 5309. Access to records and information.
14 (a) General rule.--Except as provided in subsections (b) and
15 (c), each parent shall be provided access to all the medical,
16 dental, religious or school records of the child, the residence
17 address of the child and of the other parent and any other
18 information that the court deems necessary.
19 (b) Court determination not to release information.--The
20 court, in its discretion, may determine not to release any part
21 or parts of the information in this section but in doing so must
22 state its reason for denial on the record.
23 (c) Nondisclosure of confidential information.--The court
24 shall not order that the address of a shelter for battered
25 spouses and their dependent children or otherwise confidential
26 information of a domestic violence counselor be disclosed to the
27 defendant or his counsel or any party to the proceedings.
28 § 5310. Modification of existing custody orders.
29 Any order for the custody of the child of a marriage entered
30 by a court in this Commonwealth or any state may, subject to the
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1 jurisdictional requirements set forth in Chapter 54 (relating to
2 uniform child custody jurisdiction and enforcement), be modified
3 at any time to an order of shared custody in accordance with
4 this subchapter.
5 § 5311. When parent deceased.
6 If a parent of an unmarried child is deceased, the parents or
7 grandparents of the deceased parent may be granted reasonable
8 partial custody or visitation rights, or both, to the unmarried
9 child by the court upon a finding that partial custody or
10 visitation rights, or both, would be in the best interest of the
11 child and would not interfere with the parent-child
12 relationship. The court shall consider the amount of personal
13 contact between the parents or grandparents of the deceased
14 parent and the child prior to the application.
15 § 5312. When parents' marriage is dissolved or parents are
16 separated.
17 In all proceedings for dissolution, subsequent to the
18 commencement of the proceeding and continuing thereafter or when
19 parents have been separated for six months or more, the court
20 may, upon application of the parent or grandparent of a party,
21 grant reasonable partial custody or visitation rights, or both,
22 to the unmarried child if it finds that visitation rights or
23 partial custody, or both, would be in the best interest of the
24 child and would not interfere with the parent-child
25 relationship. The court shall consider the amount of personal
26 contact between the parents or grandparents of the party and the
27 child prior to the application.
28 § 5313. When grandparents may petition.
29 (a) Partial custody and visitation.--If an unmarried child
30 has resided with his grandparents or great-grandparents for a
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1 period of 12 months or more and is subsequently removed from the
2 home by his parents, the grandparents or great-grandparents may
3 petition the court for an order granting them reasonable partial
4 custody or visitation rights, or both, to the child. The court
5 shall grant the petition if it finds that visitation rights
6 would be in the best interest of the child and would not
7 interfere with the parent-child relationship.
8 (b) Physical and legal custody.--A grandparent has standing
9 to bring a petition for physical and legal custody of a
10 grandchild. If it is in the best interest of the child not to be
11 in the custody of either parent and if it is in the best
12 interest of the child to be in the custody of the grandparent,
13 the court may award physical and legal custody to the
14 grandparent. This subsection applies to a grandparent:
15 (1) who has genuine care and concern for the child;
16 (2) whose relationship with the child began with the
17 consent of a parent of the child or pursuant to an order of
18 court; and
19 (3) who for 12 months has assumed the role and
20 responsibilities of the child's parent, providing for the
21 physical, emotional and social needs of the child, or who
22 assumes the responsibility for a child who has been
23 determined to be a dependent child pursuant to 42 Pa.C.S. Ch.
24 63 (relating to juvenile matters) or who assumes or deems it
25 necessary to assume responsibility for a child who is
26 substantially at risk due to parental abuse, neglect, drug or
27 alcohol abuse or mental illness. The court may issue a
28 temporary order pursuant to this section.
29 § 5314. Exception for adopted children.
30 Sections 5311 (relating to when parent deceased), 5312
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1 (relating to when parents' marriage is dissolved or parents are
2 separated) and 5313 (relating to when child has resided with
3 grandparents) shall not apply if the child has been adopted by a
4 person other than a stepparent or grandparent. Any visitation
5 rights granted pursuant to this section prior to the adoption of
6 the child shall be automatically terminated upon such adoption.]
7 Section 2. Title 23 is amended by adding a chapter to read:
8 CHAPTER 53
9 CHILD CUSTODY
10 Sec.
11 5321. Scope.
12 5322. Definitions.
13 5323. Award of custody or visitation.
14 5324. Standing for any form of physical custody, legal
15 custody or visitation.
16 5325. Standing for partial physical custody and visitation.
17 5326. Effect of adoption.
18 5327. Presumption in cases concerning primary physical
19 custody.
20 5328. Factors to consider when awarding custody.
21 5329. Consideration of criminal conviction.
22 5330. Consideration of criminal charge.
23 5331. Parenting plan.
24 5332. Informational programs.
25 5333. Counseling as part of order.
26 5334. Guardian ad litem for child.
27 5335. Counsel for child.
28 5336. Access to records and information.
29 5337. Relocation.
30 5338. Modification of existing order.
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1 5339. Award of counsel fees, costs and expenses.
2 § 5321. Scope.
3 This chapter applies to disputes relating to child custody
4 and visitation matters.
5 § 5321.1. DECLARATION OF POLICY. <--
6 THE GENERAL ASSEMBLY DECLARES THAT IT IS THE PUBLIC POLICY OF
7 THIS COMMONWEALTH, WHEN IN THE BEST INTEREST OF THE CHILD, TO
8 ASSURE A REASONABLE AND CONTINUING CONTACT OF THE CHILD WITH
9 BOTH PARENTS AFTER A SEPARATION OR DISSOLUTION OF THE MARRIAGE
10 AND THE SHARING OF THE RIGHTS AND RESPONSIBILITIES OF CHILD
11 REARING BY BOTH PARENTS AND CONTINUING CONTACT OF THE CHILD OR
12 CHILDREN WITH GRANDPARENTS WHEN A PARENT IS DECEASED, DIVORCED
13 OR SEPARATED.
14 § 5322. Definitions.
15 The following words and phrases when used in this chapter
16 shall have the meanings given to them in this section unless the
17 context clearly indicates otherwise:
18 "Abuse." As defined in section 6102 (relating to
19 definitions).
20 "Adult." An individual 18 years of age or older.
21 "Agency." Any organization, society, institution or other
22 entity, including the county children and youth social service
23 agency or court facility, which provides for the care of the
24 child.
25 "Child." An unemancipated individual under 18 years of age.
26 "Legal custody." The right to make major decisions on behalf
27 of the child, including, but not limited to, medical, religious
28 and educational decisions.
29 "Parental duties." Includes meeting the physical, emotional
30 and social needs of the child.
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1 "Partial physical custody." The right to assume physical
2 custody of the child for less than a majority of the time.
3 "Physical custody." The actual physical possession and
4 control of a child.
5 "Primary physical custody." The right to assume physical
6 custody of the child for the majority of time.
7 "Relocation." A change in a residence of the child which
8 significantly impairs the ability of a nonrelocating party to
9 exercise custodial rights.
10 "Shared legal custody." The right of more than one
11 individual to legal custody of the child.
12 "Shared physical custody." The right of more than one
13 individual to assume physical custody of the child, each having
14 approximately the same amount of physical custodial time with
15 the child.
16 "Sole legal custody." The right of one individual to
17 exclusive legal custody of the child.
18 "Sole physical custody." The right of one individual to
19 exclusive physical custody of the child.
20 "Supervised visitation." Visitation in which an agency or an
21 adult designated by the court or agreed upon by the parties
22 monitors the interaction between the child and the individual
23 with visitation rights.
24 "Visitation." The right to spend time with the child but not
25 the right to remove the child from the care or control of a
26 custodial party.
27 § 5323. Award of custody or visitation.
28 (a) Types of award.--After considering the factors set forth
29 in section 5328 (relating to factors to consider when awarding
30 custody), the court may award any of the following types of
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1 custody and visitation if it is in the best interest of the
2 child:
3 (1) Sole legal custody.
4 (2) Shared legal custody.
5 (3) Sole physical custody.
6 (4) Shared physical custody.
7 (5) Primary physical custody.
8 (6) Partial physical custody.
9 (7) Visitation.
10 (8) Supervised visitation.
11 (b) Interim award.--The court may issue an interim award of
12 custody or visitation to a party who has standing under section
13 5324 (relating to standing for any form of physical custody,
14 legal custody or visitation) or 5325 (relating to standing for
15 partial physical custody and visitation), in the manner
16 prescribed by the Pennsylvania Rules of Civil Procedure
17 governing special relief in custody and visitation matters.
18 (c) Notice.--Any custody or visitation order shall include
19 notice of a party's obligations under section 5337 (relating to
20 relocation).
21 (D) REASONS FOR AWARD.--THE COURT SHALL STATE THE REASONS <--
22 FOR ITS DECISION IN THE CUSTODY ORDER. THE REASONS MAY BE STATED
23 IN NARRATIVE FORM.
24 (E) SAFETY CONDITIONS.--AFTER CONSIDERING THE FACTORS UNDER
25 SECTION 5328(A)(6), IF THE COURT FINDS THAT THERE IS AN ONGOING
26 RISK OF HARM TO THE CHILD OR AN ABUSED PARTY AND AWARDS ANY FORM
27 OF CUSTODY OR VISITATION TO A PARTY WHO COMMITTED THE ABUSE OR
28 WHO HAS A HOUSEHOLD MEMBER WHO COMMITTED THE ABUSE, THE COURT
29 SHALL INCLUDE IN THE CUSTODY ORDER SAFETY CONDITIONS DESIGNED TO
30 PROTECT THE CHILD OR THE ABUSED PARTY.
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1 (d) (F) Enforcement.--In awarding custody or visitation, the <--
2 court shall specify the terms and conditions of the award in
3 sufficient detail to enable a party to enforce the court order
4 through law enforcement authorities.
5 (e) (G) Contempt for noncompliance with any custody or <--
6 visitation order.--
7 (1) A party who willfully fails to comply with any
8 custody or visitation order may, as prescribed by general
9 rule, be adjudged in contempt. Contempt shall be punishable
10 by any one or more of the following:
11 (i) Imprisonment for a period of not more than six
12 months.
13 (ii) A fine of not more than $500.
14 (iii) Probation for a period of not more than six
15 months.
16 (iv) An order for nonrenewal, suspension or denial
17 of operating privilege pursuant to section 4355 (relating
18 to denial or suspension of licenses).
19 (v) Counsel fees and costs.
20 (2) An order committing an individual to jail under this
21 section shall specify the condition which, when fulfilled,
22 will result in the release of that individual.
23 (f) (H) Parties in same residence.--Parties living separate <--
24 and apart in the same residence may seek relief under this
25 chapter, but any custody or visitation order made under such a
26 circumstance shall be effective only upon:
27 (1) one party physically vacating the residence; or
28 (2) an order awarding one party exclusive possession of
29 the residence.
30 § 5324. Standing for any form of physical custody, legal
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1 custody or visitation.
2 The following individuals may file an action under this
3 chapter for any form of physical custody, legal custody or
4 visitation:
5 (1) A parent of the child.
6 (2) A person who stands in loco parentis to the child.
7 (3) A grandparent of the child who is not in loco
8 parentis to the child:
9 (i) whose relationship with the child began either
10 with the consent of a parent of the child or pursuant to
11 a court order;
12 (ii) who assumes or is willing to assume
13 responsibility for the child; and
14 (iii) when one of the following conditions is met:
15 (A) the child has been determined to be a
16 dependent child pursuant to 42 Pa.C.S. Ch. 63
17 (relating to juvenile matters);
18 (B) the child is substantially at risk due to
19 parental abuse, neglect, drug or alcohol abuse or
20 incapacity; or
21 (C) the child has for a period of at least 12
22 consecutive months resided with the grandparent,
23 excluding brief temporary absences of the child from
24 the home, and is removed from the home by the
25 parents, in which case the action must be filed
26 within six months after the removal of the child from
27 the home.
28 § 5325. Standing for partial physical custody and visitation.
29 In addition to situations set forth in section 5324 (relating
30 to standing for any form of physical custody, legal custody or
20050S0074B1951 - 16 -
1 visitation), grandparents and great-grandparents may file an
2 action under this chapter for partial physical custody or
3 visitation in the following situations:
4 (1) where the parent of the child is deceased, a parent
5 or grandparent of the deceased parent may file an action
6 under this section;
7 (2) where the parents of the child have been separated
8 for a period of at least six months or have commenced and
9 continued a proceeding to dissolve their marriage; or
10 (3) when the child has for a period of at least 12
11 consecutive months resided with the grandparent or great-
12 grandparent, excluding brief temporary absences of the child
13 from the home, and is removed from the home by the parents,
14 an action must be filed within six months after the removal
15 of the child from the home.
16 § 5326. Effect of adoption.
17 Any rights to seek physical custody, legal custody or
18 visitation rights and any custody or visitation rights that have
19 been granted under section 5324 (relating to standing for any
20 form of physical custody, legal custody or visitation) or 5325
21 (relating to standing for partial physical custody and
22 visitation) to a grandparent or great-grandparent prior to the
23 adoption of the child by an individual other than a stepparent,
24 grandparent or great-grandparent shall be automatically
25 terminated upon such adoption.
26 § 5327. Presumption in cases concerning primary physical
27 custody.
28 (a) Between parents.--In any action regarding the custody of
29 the child between the parents of the child, there shall be no
30 presumption that custody should be awarded to a particular
20050S0074B1951 - 17 -
1 parent.
2 (b) Between a parent and third party.--In any action
3 regarding the custody of the child between a parent of the child
4 and a nonparent, there shall be a presumption that custody shall
5 be awarded to the parent. The presumption in favor of the parent
6 may be rebutted by clear and convincing evidence.
7 (c) Between third parties.--In any action regarding the
8 custody of the child between a nonparent and another nonparent,
9 there shall be no presumption that custody should be awarded to
10 a particular party.
11 § 5328. Factors to consider when awarding custody.
12 (a) Factors.--In ordering any form of custody or visitation,
13 the court shall determine the best interest of the child by
14 considering all relevant factors, including the following:
15 (1) Which party is more likely to encourage and permit
16 frequent and continuing contact between the child and another
17 party.
18 (2) The parental duties performed by each party on
19 behalf of the child.
20 (3) The need for stability and continuity in the child's
21 education, family life and community life.
22 (4) The availability of extended family.
23 (5) The child's sibling relationships.
24 (6) The present and past abuse committed by a party or
25 member of the party's household AND WHETHER THERE IS A <--
26 CONTINUED RISK OF HARM TO THE CHILD OR AN ABUSED PARTY.
27 (7) The well-reasoned preference of the child, based on
28 the child's maturity and judgment.
29 (8) The attempts of a parent to turn the child against
30 the other parent.
20050S0074B1951 - 18 -
1 (9) Which party is more likely to maintain a loving,
2 stable, consistent and nurturing relationship with the child
3 adequate for the child's emotional needs.
4 (10) Which party is more likely to attend to the daily
5 physical, emotional, developmental, educational and special
6 needs of the child.
7 (11) The proximity of the residences of the parties.
8 (12) Each party's availability to care for the child or
9 ability to make appropriate child care arrangements.
10 (13) The level of conflict between the parties and the
11 willingness and ability of the parties to cooperate with one
12 another. A PARTY'S EFFORT TO PROTECT A CHILD FROM ABUSE BY <--
13 ANOTHER PARTY IS NOT EVIDENCE OF UNWILLINGNESS OR INABILITY
14 TO COOPERATE WITH THAT PARTY.
15 (14) The history of drug or alcohol abuse of a party or
16 member of a party's household.
17 (15) The mental and physical condition of a party or
18 member of a party's household.
19 (16) Any other relevant factor.
20 (b) Grandparents and great-grandparents.--
21 (1) In ordering partial physical custody or visitation
22 to a party who has standing under section 5325(1) or (2)
23 (relating to standing for partial physical custody and
24 visitation), the court shall consider the following:
25 (i) the amount of personal contact between the child
26 and the party prior to the filing of the action;
27 (ii) whether the award interferes with any parent-
28 child relationship; and
29 (iii) whether the award is in the best interest of
30 the child.
20050S0074B1951 - 19 -
1 (2) In ordering partial physical custody or visitation
2 to a parent's parent or grandparent who has standing under
3 section 5325(3), the court shall consider whether the award:
4 (i) interferes with any parent-child relationship;
5 and
6 (ii) is in the best interest of the child.
7 § 5329. Consideration of criminal conviction.
8 (a) Offenses.--Where a party seeks any form of custody or
9 visitation, the court shall consider whether that party or
10 member of that party's household has been convicted of or has
11 pleaded guilty or no contest to any of the following offenses or
12 an offense in another jurisdiction equivalent to any of the
13 following offenses:
14 (1) 18 Pa.C.S. Ch. 25 (relating to criminal homicide).
15 (2) 18 Pa.C.S. § 2702 (relating to aggravated assault).
16 (3) 18 Pa.C.S. § 2706 (relating to terroristic threats).
17 (4) 18 Pa.C.S. § 2709.1 (relating to stalking).
18 (5) 18 Pa.C.S. § 2901 (relating to kidnapping).
19 (6) 18 Pa.C.S. § 2902 (relating to unlawful restraint).
20 (7) 18 Pa.C.S. § 2903 (relating to false imprisonment).
21 (8) 18 Pa.C.S. § 2910 (relating to luring a child into a
22 motor vehicle).
23 (9) 18 Pa.C.S. § 3121 (relating to rape).
24 (10) 18 Pa.C.S. § 3122.1 (relating to statutory sexual
25 assault).
26 (11) 18 Pa.C.S. § 3123 (relating to involuntary deviate
27 sexual intercourse).
28 (12) 18 Pa.C.S. § 3124.1 (relating to sexual assault).
29 (13) 18 Pa.C.S. § 3125 (relating to aggravated indecent
30 assault).
20050S0074B1951 - 20 -
1 (14) 18 Pa.C.S. § 3126 (relating to indecent assault).
2 (15) 18 Pa.C.S. § 3127 (relating to indecent exposure).
3 (16) 18 Pa.C.S. § 3129 (relating to sexual intercourse
4 with animal).
5 (17) 18 Pa.C.S. § 3301 (relating to arson and related
6 offenses).
7 (18) 18 Pa.C.S. § 4302 (relating to incest).
8 (19) 18 Pa.C.S. § 4303 (relating to concealing death of
9 child).
10 (20) 18 Pa.C.S. § 4304 (relating to endangering welfare
11 of children).
12 (21) 18 Pa.C.S. § 4305 (relating to dealing in infant
13 children).
14 (22) 18 Pa.C.S. § 5902(b) (relating to prostitution and
15 related offenses).
16 (23) 18 Pa.C.S. § 5903(c) or (d) (relating to obscene
17 and other sexual materials and performances).
18 (24) 18 Pa.C.S. § 6301 (relating to corruption of
19 minors).
20 (25) 18 Pa.C.S. § 6312 (relating to sexual abuse of
21 children).
22 (26) 18 Pa.C.S. § 6318 (relating to unlawful contact
23 with minor).
24 (27) 18 Pa.C.S. § 6320 (relating to sexual exploitation
25 of children).
26 (28) 23 Pa.C.S. § 6114 (relating to contempt for
27 violation of order or agreement).
28 (29) The former 75 Pa.C.S. § 3731 (relating to driving
29 under influence of alcohol or controlled substance).
30 (30) 75 Pa.C.S. Ch. 38 (relating to driving after
20050S0074B1951 - 21 -
1 imbibing alcohol or utilizing drugs).
2 (31) Section 13(a)(1) of the act of April 14, 1972
3 (P.L.233, No.64), known as The Controlled Substance, Drug,
4 Device and Cosmetic Act, to the extent that it prohibits the
5 manufacture, sale or delivery, holding, offering for sale or
6 possession of any controlled substance or other drug or
7 device.
8 (b) Parent convicted of murder.--No court shall award
9 custody, partial custody or visitation to a parent who has been
10 convicted of murder under 18 Pa.C.S. § 2502(a) (relating to
11 murder) of the other parent of the child who is the subject of
12 the order unless the child is of suitable age and consents to
13 the order.
14 (c) Initial evaluation.--The court shall provide for an
15 evaluation to determine whether:
16 (1) the party or household member who committed an
17 offense under subsection (a) poses a threat to the child; and
18 (2) counseling is necessary for that party or household
19 member.
20 (d) Counseling.--
21 (1) Where the court determines under subsection (c) that
22 counseling is necessary, it shall appoint a qualified
23 professional specializing in treatment relating to the
24 particular offense to provide counseling to the offending
25 individual.
26 (2) Counseling may include a program of treatment or
27 individual therapy designed to rehabilitate the offending
28 individual which addresses, but is not limited to, issues
29 regarding physical and sexual abuse, the psychology of the
30 offender and the effects of the offense on the victim.
20050S0074B1951 - 22 -
1 (e) Subsequent evaluation.--
2 (1) At any time during or subsequent to the counseling
3 under subsection (d), the court may require another
4 evaluation to determine whether further counseling is
5 necessary.
6 (2) If the court awards custody or visitation to a party
7 who committed an offense under subsection (a) or who shares a
8 household with an individual who committed an offense under
9 subsection (a), the court may require subsequent evaluations
10 on the rehabilitation of the offending individual and the
11 well-being of the child subsequent to the order. If upon
12 review of a subsequent evaluation the court determines that
13 the offending individual poses a threat of physical,
14 emotional or psychological harm to the child, the court may
15 schedule a hearing to modify the custody or visitation order.
16 (f) Costs.--The court may order a party to pay all or part
17 of the costs of the counseling and evaluations under this
18 section.
19 § 5330. Consideration of criminal charge.
20 (a) Expedited hearing.--A party who has obtained information
21 under 42 Pa.C.S. § 1904 (relating to availability of criminal
22 charge information in child custody proceedings) or otherwise
23 about a charge filed against the other party for an offense
24 listed under section 5329(a) (relating to consideration of
25 criminal conviction) may move for a temporary custody or
26 visitation order or modification of an existing custody or
27 visitation order. The court shall hold the hearing under this
28 subsection in an expeditious manner.
29 (b) Risk of harm.--In evaluating any request under
30 subsection (a), the court shall consider whether the party who
20050S0074B1951 - 23 -
1 is or has been charged with an offense set forth in section
2 5329(a) poses a risk of physical, emotional or psychological
3 harm to the child.
4 (c) No prejudice.--Failure to either apply for information
5 under 42 Pa.C.S. § 1904 or act under this section shall not
6 prejudice any party in a custody or visitation proceeding.
7 § 5331. Parenting plan.
8 (a) Purpose.--In a contested custody proceeding, the court
9 shall require the parties to submit parenting plans for the care
10 and custody of the child, to aid the court in resolving the
11 custody dispute. A parenting plan and the position of a party as
12 set forth in that parenting plan shall not be admissible as
13 evidence by another party.
14 (b) Contents.--A parenting plan shall include the following:
15 (1) The schedule for personal care and control of the
16 child, including parenting time, holidays and vacations.
17 (2) The education and religious involvement, if any, of
18 the child.
19 (3) The health care of the child.
20 (4) Child-care arrangements.
21 (5) Transportation arrangements.
22 (6) A procedure by which proposed changes, disputes and
23 alleged breaches of the custody order may be adjudicated or
24 otherwise resolved through mediation, arbitration or other
25 means.
26 (7) Any matter specified by the court.
27 (8) Any other matter that serves the best interest of
28 the child.
29 § 5332. Informational programs.
30 (a) Attendance.--The court may direct the parties to attend
20050S0074B1951 - 24 -
1 informational programs concerning parental duties.
2 (b) Process not delayed.--Subsequent proceedings and the
3 entry of any order or decree shall not be delayed because of the
4 lack of participation in any informational program by one of the
5 parties.
6 (c) Costs.--The court may order a party to pay all or part
7 of the costs of the informational programs under this section.
8 § 5333. Counseling as part of order.
9 (a) Attendance.--The court may, as part of a custody or
10 visitation order, require the parties to attend counseling
11 sessions.
12 (b) Abuse.--In situations involving abuse, the court may
13 order individual counseling for the abuser, BUT MAY NOT ORDER <--
14 THE PARTIES TO ATTEND JOINT COUNSELING.
15 (c) Verification.--Each party's participation in the
16 counseling sessions shall be verified by the counselor.
17 (d) Costs.--The court may order a party to pay all or part
18 of the costs of the counseling sessions under this section.
19 § 5334. Guardian ad litem for child.
20 (a) Appointment.--The court may appoint a guardian ad litem
21 for the child. The court shall specify the terms of the
22 appointment, including the role, duties and scope of authority
23 of the guardian ad litem.
24 (b) Investigation and report.--The guardian ad litem shall
25 investigate and report to the court information relevant to the
26 custody or visitation proceeding.
27 (c) Abuse.--If substantial allegations of abuse of the child
28 are made, the court shall appoint a guardian ad litem for the
29 child if:
30 (1) counsel for the child is not appointed under section
20050S0074B1951 - 25 -
1 5335 (relating to counsel for child); or
2 (2) the court is satisfied that the relevant information
3 will be presented to the court only with such appointment.
4 (d) Subject to examination.--A guardian ad litem who submits
5 a report or makes a recommendation to the court shall be subject
6 to examination by the parties.
7 (e) Costs.--The court may order a party to pay all or part
8 of the costs of appointing a guardian ad litem under this
9 section.
10 § 5335. Counsel for child.
11 (a) Appointment.--The court may appoint counsel to represent
12 the child if the court determines that the appointment will
13 assist in resolving the issues in the custody or visitation
14 proceeding.
15 (b) Abuse.--Substantial allegations of abuse of the child
16 constitute a reasonable basis for appointing counsel for the
17 child.
18 (c) Not subject to examination.--Counsel appointed by the
19 court for the child shall not be subject to examination unless
20 such counsel testifies in the matter.
21 (d) Costs.--The court may order a party to pay all or part
22 of the costs of appointing counsel for the child under this
23 section.
24 § 5336. Access to records and information.
25 (a) General rule.--Except as provided in subsections (b) and
26 (c):
27 (1) A party granted sole or shared legal custody under
28 section 5323 (relating to award of custody or visitation)
29 shall be provided access to:
30 (i) the medical, dental, religious and school
20050S0074B1951 - 26 -
1 records of the child;
2 (ii) the address of the child and any other party;
3 and
4 (iii) any other information that the court deems
5 necessary or proper.
6 (2) Upon request, a parent, party or entity possessing
7 any information set forth in paragraph (1) shall provide it
8 to any party granted sole or shared legal custody.
9 (b) Nondisclosure of confidential information.--The court
10 shall not order the disclosure of any of the following
11 information to any parent or party granted custody or
12 visitation:
13 (1) The address of a victim of abuse.
14 (2) Confidential information from an abuse counselor or
15 shelter.
16 (3) INFORMATION PROTECTED UNDER CHAPTER 67 (RELATING TO <--
17 DOMESTIC AND SEXUAL VIOLENCE VICTIM ADDRESS CONFIDENTIALITY).
18 (3) (4) Information independently protected from <--
19 disclosure by the child's right to confidentiality under the
20 act of July 9, 1976 (P.L.817, No.143), known as the Mental
21 Health Procedures Act, or any other statute.
22 (c) Other information.--The court may determine not to
23 release information set forth in subsection (a), in which case
24 it shall state the reason for its denial on the record.
25 § 5337. Relocation.
26 (a) Applicability.--This section applies to any proposed
27 relocation.
28 (b) General rule.--No relocation shall occur unless:
29 (1) every individual who has custody or visitation
30 rights to the child consents to the proposed relocation; or
20050S0074B1951 - 27 -
1 (2) the court approves the proposed relocation.
2 (c) Notice.--
3 (1) The party proposing the relocation shall notify
4 every other individual who has custody or visitation rights
5 to the child.
6 (2) Reasonable notice shall be given no later than:
7 (i) the 60th day before the date of the proposed
8 relocation; or
9 (ii) the 10th day after the date that the individual
10 knows of the relocation, if:
11 (A) the individual did not know and could not
12 reasonably have known of the relocation in sufficient
13 time to comply with the 60-day notice; and
14 (B) it is not reasonably possible to delay the
15 date of relocation so as to comply with the 60-day
16 notice.
17 (3) Except as provided by section 5336 (relating to
18 access to records and information), the following
19 information, if available, must be included with the notice
20 of the proposed relocation:
21 (i) The address of the intended new residence.
22 (ii) The mailing address, if not the same as the
23 address of the intended new residence.
24 (iii) The home telephone number of the intended new
25 residence.
26 (iv) The name of the new school district and school.
27 (v) The date of the proposed relocation.
28 (vi) The reasons for the proposed relocation.
29 (vii) A proposal for a revised custody or visitation
30 schedule.
20050S0074B1951 - 28 -
1 (viii) Any other information which the party
2 proposing the relocation deems appropriate.
3 (ix) A warning to the nonrelocating party that if
4 the nonrelocating party does not file with the court an
5 objection to the proposed relocation within 30 days after
6 receipt of the notice, that party shall be foreclosed
7 from objecting to the relocation.
8 (4) If any of the information set forth in paragraph (3)
9 is not known when the notice is sent but is later made known
10 to the party proposing the relocation, then that party shall
11 promptly inform every individual who received notice under
12 this subsection.
13 (d) Objection to proposed relocation.--
14 (1) A party entitled to receive notice may file with the
15 court an objection to the proposed relocation and seek a
16 temporary or permanent order to prevent the relocation.
17 (2) An objection made under this subsection shall be
18 filed with the court within 30 days of receipt of the
19 proposed relocation notice.
20 (3) If notice of the proposed relocation has been
21 properly given and no objection to the proposed relocation
22 has been filed in court, then it shall be presumed that the
23 nonrelocating party has consented to the proposed relocation.
24 (4) If a party entitled to notice does not file with the
25 court an objection to the relocation within 30 days after
26 receipt of the notice but later petitions the court for
27 review of the custodial arrangements, the court shall not
28 accept testimony challenging the relocation.
29 (e) Confirmation of relocation.--If no objection to the
30 proposed relocation is filed under subsection (d), the party
20050S0074B1951 - 29 -
1 proposing the relocation may file the following with the court
2 prior to the relocation:
3 (1) an affidavit stating that the party provided notice
4 to every individual entitled to notice, the time to file an
5 objection to the proposed relocation has passed and no
6 individual entitled to receive notice has filed an objection
7 to the proposed relocation;
8 (2) a petition to confirm the relocation and modify any
9 existing custody or visitation order; and
10 (3) a proposed order containing the information set
11 forth in subsection (c)(3).
12 (f) Hearing.--
13 (1) The court shall hold an expedited full hearing on
14 the proposed relocation after a timely objection has been
15 filed and before the relocation occurs unless exigent
16 circumstances exist, in which case the relocation may occur
17 pending an expedited full hearing.
18 (2) If the court approves the proposed relocation, it
19 shall:
20 (i) modify any existing custody or visitation order;
21 or
22 (ii) establish the terms and conditions of a custody
23 or visitation order.
24 (g) Relocation factors.--In determining whether to grant a
25 proposed relocation, the court shall consider the following
26 factors:
27 (1) The nature, quality, extent of involvement and
28 duration of the child's relationship with the party proposing
29 to relocate and with the nonrelocating party, siblings and
30 other significant persons in the child's life.
20050S0074B1951 - 30 -
1 (2) The age, developmental stage, needs of the child and
2 the likely impact the relocation will have on the child's
3 physical, educational and emotional development, taking into
4 consideration any special needs of the child.
5 (3) The feasibility of preserving the relationship
6 between the nonrelocating party and the child through
7 suitable custody arrangements, considering the logistics and
8 financial circumstances of the parties.
9 (4) The child's preference, taking into consideration
10 the age and maturity of the child.
11 (5) Whether there is an established pattern of conduct
12 of either party to promote or thwart the relationship of the
13 child and the other party.
14 (6) Whether the relocation will enhance the general
15 quality of life for the party seeking the relocation,
16 including, but not limited to, financial or emotional benefit
17 or educational opportunity.
18 (7) Whether the relocation will enhance the general
19 quality of life for the child, including, but not limited to,
20 financial or emotional benefit or educational opportunity.
21 (8) The reasons and motivation of each party for seeking
22 or opposing the relocation.
23 (9) THE PRESENT AND PAST ABUSE COMMITTED BY A PARTY OR <--
24 MEMBER OF THE PARTY'S HOUSEHOLD AND WHETHER THERE IS A
25 CONTINUED RISK OF HARM TO THE CHILD OR AN ABUSED PARTY.
26 (9) (10) Any other factor affecting the best interest of <--
27 the child.
28 (h) Burden of proof.--
29 (1) The party proposing the relocation has the burden of
30 establishing that the relocation will serve the best interest
20050S0074B1951 - 31 -
1 of the child as shown under the factors set forth in
2 subsection (g).
3 (2) Each party has the burden of establishing the
4 integrity of that party's motives in either seeking the
5 relocation or seeking to prevent the relocation.
6 (i) Failure to provide reasonable notice.--The court may
7 consider a failure to provide reasonable notice of a proposed
8 relocation as:
9 (1) a factor in making a determination regarding the
10 relocation;
11 (2) a factor in determining whether custody or
12 visitation rights should be modified;
13 (3) a basis for ordering the return of the child to the
14 nonrelocating party if the relocation has occurred without
15 reasonable notice;
16 (4) sufficient cause to order the party proposing the
17 relocation to pay reasonable expenses and counsel fees
18 incurred by the party objecting to the relocation; and
19 (5) a ground for contempt and the imposition of
20 sanctions against the party proposing the relocation.
21 (j) Effect of relocation prior to hearing.--If a party
22 relocates with the child prior to a full expedited hearing, the
23 court shall not confer any presumption in favor of the
24 relocation.
25 § 5338. Modification of existing order.
26 (a) Best interest of the child.--Upon petition, a court may
27 modify a custody or visitation order to serve the best interest
28 of the child.
29 (b) Applicability.--This section shall apply to any custody
30 or visitation order entered by a court of this Commonwealth or
20050S0074B1951 - 32 -
1 any other state subject to the jurisdictional requirements set
2 forth in Chapter 54 (relating to uniform child custody
3 jurisdiction and enforcement).
4 § 5339. Award of counsel fees, costs and expenses.
5 Under this chapter, a court may award reasonable interim or <--
6 final counsel fees, costs and expenses to any party, based on
7 any relevant factor including, but not limited to, the
8 following:
9 (1) The good faith conduct of the parties.
10 (2) The relative financial resources of the parties,
11 including the ability of a party to participate in custody
12 litigation.
13 (3) The need of a party to engage experts.
14 (4) The best interest of the child.
15 UNDER THIS CHAPTER, A COURT MAY AWARD REASONABLE INTERIM OR <--
16 FINAL COUNSEL FEES, COSTS AND EXPENSES TO A PARTY IF THE COURT
17 FINDS THAT THE CONDUCT OF ANOTHER PARTY WAS OBDURATE, VEXATIOUS,
18 REPETITIVE OR IN BAD FAITH.
19 Section 3. Section 1904(b), (c) and (h) of Title 42 are
20 amended to read:
21 § 1904. Availability of criminal charge information in child
22 custody proceedings.
23 * * *
24 (b) Criminal charges enumerated.--The criminal charge
25 information that shall be available on the information system
26 shall be limited to the offenses listed in 23 Pa.C.S. §
27 [5303(b.1)(2) (relating to award of custody, partial custody or
28 visitation)] 5329(a) (relating to consideration of criminal
29 convictions).
30 (c) Application for access to criminal charge information.--
20050S0074B1951 - 33 -
1 To obtain information about charges covered in 23 Pa.C.S. §
2 [5303(b.1)(2)] 5329(a), a parent who has been awarded custody,
3 partial custody or visitation or who is a party to a custody
4 proceeding must file an application for access to the
5 information with the office of the prothonotary in the county
6 where the proceeding or order was filed.
7 (1) A person who knowingly gives false information with
8 the intent to gain information provided for under this
9 section commits an offense under 18 Pa.C.S. § 4904(a)
10 (relating to unsworn falsification to authorities).
11 (2) The application must be filed with the prothonotary
12 by one of the following methods:
13 (i) In person, at the office of the prothonotary, by
14 the parent who is filing the application. The applicant
15 must have a valid form of photoidentification available
16 for the inspection of the prothonotary.
17 (ii) By mailing a notarized application using first
18 class mail.
19 (iii) By including the application with the original
20 complaint, initial response or any other pleading or
21 motion filed with the prothonotary.
22 (3) The Administrative Office shall develop the
23 application for access to the criminal charge information
24 system. The following information shall be included in the
25 application:
26 (i) Docket number of original court filing.
27 (ii) Date of filing.
28 (iii) Date of birth of all children involved in the
29 custody proceeding or order.
30 (iv) A personal access code.
20050S0074B1951 - 34 -
1 (v) A notice to the parent that additional
2 information relating to criminal history record
3 information is available, as provided for in 18 Pa.C.S.
4 Ch. 91 (relating to criminal history record information).
5 (vi) A statement verifying that:
6 (A) the person who is filing for access to the
7 criminal charge information system is the actual
8 person listed on the application;
9 (B) to the best of the applicant's knowledge and
10 belief, all the information included in the
11 application is true and correct; and
12 (C) the applicant is a party to the custody
13 proceeding or order that is listed on the
14 application.
15 (vii) A warning as to the penalty under 18 Pa.C.S. §
16 4904.
17 (viii) Any additional information that it is
18 determined to be necessary to expedite the verification
19 of the application and to provide access to the system,
20 as determined by the Administrative Office.
21 (4) Applications shall be made available through county
22 prothonotaries.
23 * * *
24 (h) Information available to parent.--
25 (1) After applying and qualifying to obtain the criminal
26 charge information provided by the system, a parent may
27 request information by telephone as to whether the other
28 parent has been charged with any offense listed in 23 Pa.C.S.
29 § [5303(b.1)(2)] 5329(a).
30 (2) The parent shall also be entitled to criminal
20050S0074B1951 - 35 -
1 history record information as provided for in 18 Pa.C.S. Ch.
2 91, and the parent shall be informed of the availability.
3 (3) Criminal charge information shall be retained on the
4 system for the period of time as provided for the retention
5 of criminal charges and records under 18 Pa.C.S. Ch. 91 and
6 then only until the youngest child involved in the custody
7 proceeding or order reaches 18 years of age. At no time shall
8 information be retained on the system beyond what is
9 permitted under 18 Pa.C.S. Ch. 91.
10 * * *
11 Section 4. A proceeding under 23 Pa.C.S. Ch. 53 which was
12 commenced before the effective date of this section is governed
13 by the law in effect at the time the proceeding was initiated.
14 Section 5. This act shall take effect in 60 days.
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