SENATE AMENDED

THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

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

SENATOR CORMAN, APPROPRIATIONS, IN SENATE, RE-REPORTED AS AMENDED, OCTOBER 12, 2010   

AN ACT

Amending Titles 23 (Domestic Relations) and 42 (Judiciary and

Judicial Procedure) of the Pennsylvania Consolidated

Statutes, further providing for contempt for noncompliance

with visitation or partial custody order and for child

custody; and making conforming amendments.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Section 4346, Chapter 53 and Subchapter A

headings and sections 5301, 5302, 5303, 5304, 5305, 5306, 5307,

5308, 5309, 5310, 5311, 5312, 5313, 5314 and 5315 of Title 23 of

the Pennsylvania Consolidated Statutes are repealed:

[§ 4346.  Contempt for noncompliance with visitation or partial

custody order.

(a)  General rule.--A party who willfully fails to comply

with any visitation or partial custody order may, as prescribed

by general rule, be adjudged in contempt. Contempt shall be

punishable by any one or more of the following:

(1)  Imprisonment for a period not to exceed six months.

(2)  A fine not to exceed $500.

(3)  Probation for a period not to exceed six months.

(4)  An order for nonrenewal, suspension or denial of

operating privilege pursuant to section 4355 (relating to

denial or suspension of licenses).

(b)  Condition for release.--An order committing a person to

jail under this section shall specify the condition which, when

fulfilled, will result in the release of the obligor.

CHAPTER 53

CUSTODY

SUBCHAPTER A

GENERAL PROVISIONS

§ 5301.  Declaration of policy.

The General Assembly declares that it is the public policy of

this Commonwealth, when in the best interest of the child, to

assure a reasonable and continuing contact of the child with

both parents after a separation or dissolution of the marriage

and the sharing of the rights and responsibilities of child

rearing by both parents and continuing contact of the child or

children with grandparents when a parent is deceased, divorced

or separated.

§ 5302.  Definitions.

The following words and phrases when used in this subchapter

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

context clearly indicates otherwise:

"Child."  Any unemancipated person under 18 years of age.

"Legal custody."  The legal right to make major decisions

affecting the best interest of a minor child, including, but not

limited to, medical, religious and educational decisions.

"Partial custody."  The right to take possession of a child

away from the custodial parent for a certain period of time.

"Physical custody."  The actual physical possession and

control of a child.

"Shared custody."  An order awarding shared legal or shared

physical custody, or both, of a child in such a way as to assure

the child of frequent and continuing contact with and physical

access to both parents.

"Visitation."  The right to visit a child. The term does not

include the right to remove a child from the custodial parent's

control.

§ 5303.  Award of custody, partial custody or visitation.

(a)  General rule.--

(1)  In making an order for custody or partial custody,

the court shall consider the preference of the child as well

as any other factor which legitimately impacts the child's

physical, intellectual and emotional well-being.

(2)  In making an order for custody, partial custody or

visitation to either parent, the court shall consider, among

other factors, which parent is more likely to encourage,

permit and allow frequent and continuing contact and physical

access between the noncustodial parent and the child.

(3)  The court shall consider each parent and adult

household member's present and past violent or abusive

conduct which may include, but is not limited to, abusive

conduct as defined under the act of October 7, 1976

(P.L.1090, No.218), known as the Protection From Abuse Act.

(b)  Consideration of criminal conviction.--If a parent has

been convicted of or has pleaded guilty or no contest to an

offense as set forth below, the court shall consider such

criminal conduct and shall determine that the parent does not

pose a threat of harm to the child before making an order of

custody, partial custody or visitation to that parent:

(1)  18 Pa.C.S. Ch. 25 (relating to criminal homicide);

(2)  18 Pa.C.S. § 2901 (relating to kidnapping);

(3)  18 Pa.C.S. § 2902 (relating to unlawful restraint);

(4)  18 Pa.C.S. § 3121 (relating to rape);

(5)  18 Pa.C.S. § 3122.1 (relating to statutory sexual

assault);

(6)  18 Pa.C.S. § 3123 (relating to involuntary deviate

sexual intercourse);

(7)  18 Pa.C.S. § 3124.1 (relating to sexual assault);

(8)  18 Pa.C.S. § 3125 (relating to aggravated indecent

assault);

(9)  18 Pa.C.S. § 3126 (relating to indecent assault);

(10)  18 Pa.C.S. § 3127 (relating to indecent exposure);

(11)  18 Pa.C.S. § 4302 (relating to incest);

(12)  18 Pa.C.S. § 4304 (relating to endangering welfare

of children);

(13)  18 Pa.C.S. § 5902(b) (relating to prostitution and

related offenses); or

(14)  18 Pa.C.S. § 6312 (relating to sexual abuse of

children).

(b.1)  Consideration of criminal charge.--

(1)  A parent who has obtained information under 42

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

information in child custody proceedings) of the charge filed

against the other parent for an offense listed in paragraph

(2) may move for a temporary custody order or to modify an

existing custody, partial custody or visitation order. The

temporary custody or modification hearing shall be scheduled

expeditiously.

(2)  In evaluating any request for temporary custody or

modification of a custody, partial custody or visitation

order, the court shall consider whether the parent who is or

has been charged with an offense listed below poses a risk of

harm to the child:

(i)  18 Pa.C.S. Ch. 25;

(ii)  18 Pa.C.S. § 2702 (relating to aggravated

assault);

(iii)  18 Pa.C.S. § 2706 (relating to terroristic

threats);

(iv)  18 Pa.C.S. § 2709.1 (relating to stalking);

(v)  18 Pa.C.S. § 2901;

(vi)  18 Pa.C.S. § 2902;

(vii)  18 Pa.C.S. § 2903 (relating to false

imprisonment);

(viii)  18 Pa.C.S. § 3121;

(ix)  18 Pa.C.S. § 3122.1;

(x)  18 Pa.C.S. § 3123;

(xi)  18 Pa.C.S. § 3124.1;

(xii)  18 Pa.C.S. § 3125;

(xiii)  18 Pa.C.S. § 3126;

(xiv)  18 Pa.C.S. § 3127;

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

related offenses);

(xvi)  18 Pa.C.S. § 4302;

(xvii)  18 Pa.C.S. § 4304;

(xviii)  18 Pa.C.S. § 6312; and

(xix)  23 Pa.C.S. § 6114 (relating to contempt for

violation of order or agreement).

(3)  Failure to apply for information under 42 Pa.C.S. §

1904 or to act under this subsection shall not prejudice any

parent in a custody or visitation proceeding.

(b.2)  Parent convicted of murder.--No court shall award

custody, partial custody or visitation to a parent who has been

convicted of murder under 18 Pa.C.S. § 2502(a) (relating to

murder of the first degree) of the other parent of the child who

is the subject of the order, unless the child is of suitable age

and consents to the order.

(c)  Counseling.--In making a determination to award custody,

partial custody or visitation pursuant to subsection (b), the

court shall appoint a qualified professional to provide

counseling to an offending parent described in subsection (b)

and shall take testimony from that professional regarding the

provision of such counseling prior to issuing any order of

custody, partial custody or visitation. Counseling, required in

accordance with this subsection, shall include a program of

treatment or individual therapy designed to rehabilitate a

parent which addresses, but is not limited to, issues regarding

physical and sexual abuse, domestic violence, the psychology of

the offender and the effects of abuse on the victim. If the

court awards custody, partial custody or visitation to an

offending parent described in subsection (b), the court may

require subsequent periodic counseling and reports on the

rehabilitation of the offending parent and the well-being of the

child following an order relating to custody, partial custody or

visitation. If, upon review of a subsequent report or reports,

the court determines that the offending parent poses a threat of

harm to the child, the court may schedule a hearing and modify

the order of custody or visitation to protect the well-being of

the child.

(d)  Sole custody.--The court shall award sole custody when

it is in the best interest of the child.

§ 5304.  Award of shared custody.

An order for shared custody may be awarded by the court when

it is in the best interest of the child:

(1)  upon application of one or both parents;

(2)  when the parties have agreed to an award of shared

custody; or

(3)  in the discretion of the court.

§ 5305.  Counseling.

(a)  General rule.--The court may require the parents to

attend counseling sessions and may consider the recommendations

of the counselors prior to awarding sole or shared custody.

These counseling sessions may include, but shall not be limited

to, discussions of the responsibilities and decisionmaking

arrangements involved in both sole and shared custody and the

suitability of each arrangement to the capabilities of each

parent or both parents.

(b)  Temporary custody.--The court may temporarily award

custody to either parent or both parents pending resolution of

any counseling.

(c)  Report.--The court may require the counselor to submit a

report if the court desires and within such reasonable time as

the court determines.

§ 5306.  Plan for implementation of custody order.

The court, in its discretion, may require the parents to

submit to the court a plan for the implementation of any custody

order made under this subchapter. Upon the request of either

parent or the court, the domestic relations section of the court

or other party or agency approved by the court shall assist in

the formulation and implementation of the plan.

§ 5307.  Denial of custody under agreement or plan.

When the court declines to enter an order awarding custody

either as agreed to by the parents or under the plan developed

by the parents, the court shall state its reasons for denial on

the record.

§ 5308.  Removal of party or child from jurisdiction.

If either party intends to or does remove himself or the

child from this Commonwealth after a custody order has been

made, the court, on its own motion or upon motion of either

party, may review the existing custody order.

§ 5309.  Access to records and information.

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

(c), each parent shall be provided access to all the medical,

dental, religious or school records of the child, the residence

address of the child and of the other parent and any other

information that the court deems necessary.

(b)  Court determination not to release information.--The

court, in its discretion, may determine not to release any part

or parts of the information in this section but in doing so must

state its reason for denial on the record.

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

shall not order that the address of a shelter for battered

spouses and their dependent children or otherwise confidential

information of a domestic violence counselor be disclosed to the

defendant or his counsel or any party to the proceedings.

§ 5310.  Modification of existing custody orders.

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

custody proceedings during military deployment), any order for

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

this Commonwealth or any state may, subject to the

jurisdictional requirements set forth in Chapter 54 (relating to

uniform child custody jurisdiction and enforcement), be modified

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

this subchapter.

§ 5311.  When parent deceased.

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

grandparents of the deceased parent may be granted reasonable

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

child by the court upon a finding that partial custody or

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

child and would not interfere with the parent-child

relationship. The court shall consider the amount of personal

contact between the parents or grandparents of the deceased

parent and the child prior to the application.

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

separated.

In all proceedings for dissolution, subsequent to the

commencement of the proceeding and continuing thereafter or when

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

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

grant reasonable partial custody or visitation rights, or both,

to the unmarried child if it finds that visitation rights or

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

child and would not interfere with the parent-child

relationship. The court shall consider the amount of personal

contact between the parents or grandparents of the party and the

child prior to the application.

§ 5313.  When grandparents may petition.

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

has resided with his grandparents or great-grandparents for a

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

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

petition the court for an order granting them reasonable partial

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

shall grant the petition if it finds that visitation rights

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

interfere with the parent-child relationship.

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

to bring a petition for physical and legal custody of a

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

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

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

the court may award physical and legal custody to the

grandparent. This subsection applies to a grandparent:

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

(2)  whose relationship with the child began with the

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

court; and

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

responsibilities of the child's parent, providing for the

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

assumes the responsibility for a child who has been

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

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

necessary to assume responsibility for a child who is

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

alcohol abuse or mental illness. The court may issue a

temporary order pursuant to this section.

§ 5314.  Exception for adopted children.

Sections 5311 (relating to when parent deceased), 5312

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

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

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

person other than a stepparent or grandparent. Any visitation

rights granted pursuant to this section prior to the adoption of

the child shall be automatically terminated upon such adoption.

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

health practitioners.

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

appointed a licensed health care or behavioral health

practitioner to assist the court by conducting an examination or

evaluation of the parties involved or making a recommendation

concerning a child custody agreement or order may be permitted

to file a complaint against the practitioner with the

practitioner's State licensing board prior to the final

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

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

practitioner" means a person who is licensed, certified,

accredited or otherwise regulated by the Commonwealth to provide

health care or behavioral health services.]

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

CHAPTER 53

CHILD CUSTODY

Sec.

5321.  Scope of chapter.

5322.  Definitions.

5323.  Award of custody.

5324.  Standing for any form of physical custody or legal

custody.

5325.  Standing for partial physical custody and supervised

physical custody.

5326.  Effect of adoption.

5327.  Presumption in cases concerning primary physical custody.

5328.  Factors to consider when awarding custody.

5329.  Consideration of criminal conviction.

5330.  Consideration of criminal charge.

5331.  Parenting plan.

5332.  Informational programs.

5333.  Counseling as part of order.

5334.  Guardian ad litem for child.

5335.  Counsel for child.

5336.  Access to records and information.

5337.  Relocation.

5338.  Modification of existing order.

5339.  Award of counsel fees, costs and expenses.

5340.  Court-appointed child custody health care or behavioral

health practitioners.

§ 5321.  Scope of chapter.

This chapter applies to disputes relating to child custody

matters.

§ 5322.  Definitions.

(a)  This chapter.--The following words and phrases when used

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in this chapter shall have the meanings given to them in this

section subsection unless the context clearly indicates

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otherwise:

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

definitions).

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

"Agency."  Any organization, society, institution, court

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facility or other entity, including the county children and

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youth social service agency or court facility, which provides

for the care of the child. a child. The term does not include a

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county children and youth social service agency.

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

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

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

and educational decisions.

"Parental duties."  Includes meeting the physical, emotional

and social needs of the child.

"Partial physical custody."  The right to assume physical

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

"Physical custody."  The actual physical possession and

control of a child.

"Primary physical custody."  The right to assume physical

custody of the child for the majority of time.

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

significantly impairs the ability of a nonrelocating party to

exercise custodial rights.

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

individual to legal custody of the child.

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

individual to assume physical custody of the child, each having

significant periods of physical custodial time with the child.

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

exclusive legal custody of the child.

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

exclusive physical custody of the child.

"Supervised physical custody."  Custodial time during which

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

the parties monitors the interaction between the child and the

individual with those rights.

(b)  Other law.--In a statutory provision other than in this

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chapter, when the term "visitation" is used in reference to

child custody, the term may be construed to mean:

(1)  partial physical custody;

(2)  shared physical custody; or

(3)  supervised physical custody.

§ 5323.  Award of custody.

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

in section 5328 (relating to factors to consider when awarding

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

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

(1)  Shared physical custody.

(2)  Primary physical custody.

(3)  Partial physical custody.

(4)  Sole physical custody.

(5)  Supervised physical custody.

(6)  Shared legal custody.

(7)  Sole legal custody.

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

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

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

or 5325 (relating to standing for partial physical custody and

supervised physical custody), in the manner prescribed by the

Pennsylvania Rules of Civil Procedure governing special relief

in custody matters.

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

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

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

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

written opinion or order.

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

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

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 to

protect the child or the abused party.

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

specify the terms and conditions of the award in sufficient

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

enforcement authorities.

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

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

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

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

of the following:

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

months.

(ii)  A fine of not more than $500.

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

months.

(iv)  An order for nonrenewal, suspension or denial

of operating privilege under section 4355 (relating to

denial or suspension of licenses).

(v)  Counsel fees and costs.

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

section shall specify the condition which, when fulfilled,

will result in the release of that individual.

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

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

but any custody order made under such a circumstance shall be

effective only upon:

(1)  one party physically vacating the residence; or

(2)  an order awarding one party exclusive possession of

the residence.

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

custody.

The following individuals may file an action under this

chapter for any form of physical custody or legal custody:

(1)  A parent of the child.

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

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

parentis to the child:

(i)  whose relationship with the child began either

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

court order;

(ii)  who assumes or is willing to assume

responsibility for the child; and

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

(A)  the child has been determined to be a

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

juvenile matters);

(B)  the child is substantially at risk due to

parental abuse, neglect, drug or alcohol abuse or

incapacity; or

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

consecutive months resided with the grandparent,

excluding brief temporary absences of the child from

the home, and is removed from the home by the

parents, in which case the action must be filed

within six months after the removal of the child from

the home.

§ 5325.  Standing for partial physical custody and supervised

physical custody.

In addition to situations set forth in section 5324 (relating

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

grandparents and great-grandparents may file an action under

this chapter for partial physical custody or supervised physical

custody in the following situations:

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

or grandparent of the deceased parent may file an action

under this section;

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

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

continued a proceeding to dissolve their marriage; or

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

consecutive months, resided with the grandparent or great-

grandparent, excluding brief temporary absences of the child

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

an action must be filed within six months after the removal

of the child from the home.

§ 5326.  Effect of adoption.

Any rights to seek physical custody or legal custody rights

and any custody rights that have been granted under section 5324

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

custody) or 5325 (relating to standing for partial physical

custody and supervised physical custody) to a grandparent or

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

individual other than a stepparent, grandparent or great-

grandparent shall be automatically terminated upon such

adoption.

§ 5327.  Presumption in cases concerning primary physical

custody.

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

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

presumption that custody should be awarded to a particular

parent.

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

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

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

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

may be rebutted by clear and convincing evidence.

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

custody of the child between a nonparent and another nonparent,

there shall be no presumption that custody should be awarded to

a particular party.

§ 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 safety of the child, including the

following:

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

frequent and continuing contact between the child and another

party.

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

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

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

can better provide adequate physical safeguards and

supervision of the child.

(3)  The parental duties performed by each party on

behalf of the child.

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

education, family life and community life.

(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 maturity and judgment.

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

the other parent, except in cases of domestic violence where

reasonable safety measures are necessary to protect the child

from harm.

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

stable, consistent and nurturing relationship with the child

adequate for the child's emotional needs.

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

physical, emotional, developmental, educational and special

needs of the child.

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

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

ability to make appropriate child-care arrangements.

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

willingness and ability of the parties to cooperate with one

another. A party's effort to protect a child 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.

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

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

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receive preference based solely upon gender in any award granted

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under this chapter.

(c)  Grandparents and great-grandparents.--

(1)  In ordering partial physical custody or supervised

physical custody to a party who has standing under section

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

custody and supervised physical custody), the court shall

consider the following:

(i)  the amount of personal contact between the child

and the party prior to the filing of the action;

(ii)  whether the award interferes with any parent-

child relationship; and

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

the child.

(2)  In ordering partial physical custody or supervised

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

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

whether the award:

(i)  interferes with any parent-child relationship;

and

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

§ 5329.  Consideration of criminal conviction.

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

court shall consider whether that party or member of that

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

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

in another jurisdiction substantially equivalent to any of the

offenses in this section. The court shall consider such conduct

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

the child before making  any order of custody to that parent

when considering the following offenses:

18 Pa.C.S. Ch. 25 (relating to criminal homicide).

18 Pa.C.S. § 2702 (relating to aggravated assault).

18 Pa.C.S. § 2706 (relating to terroristic threats).

18 Pa.C.S. § 2709.1 (relating to stalking).

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. § 3121 (relating to rape).

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

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

intercourse).

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

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

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

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

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

animal).

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

offenders).

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

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

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

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

children).

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

18 Pa.C.S. § 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).

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.

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

custody, partial custody or supervised physical custody to a

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

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

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

age and consents to the order.

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

evaluation to determine whether:

(1)  the party or household member who committed an

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

(2)  counseling is necessary for that party or household

member.

(d)  Counseling.--

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

counseling is necessary, it shall appoint a qualified

professional specializing in treatment relating to the

particular offense to provide counseling to the offending

individual.

(2)  Counseling may include a program of treatment or

individual therapy designed to rehabilitate the offending

individual which addresses, but is not limited to, issues

regarding physical and sexual abuse, the psychology of the

offender and the effects of the offense on the victim.

(e)  Subsequent evaluation.--

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

under subsection (d), the court may require another

evaluation to determine whether further counseling is

necessary.

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

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

with an individual who committed an offense under subsection

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

rehabilitation of the offending individual and the well-being

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

subsequent evaluation the court determines that the offending

individual poses a threat of physical, emotional or

psychological harm to the child, the court may schedule a

hearing to modify the custody order.

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

of the costs of the counseling and evaluations under this

section.

§ 5330.  Consideration of criminal charge.

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

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

charge information in child custody proceedings) or otherwise

about a charge filed against the other party for an offense

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

criminal conviction) may move for a temporary custody order or

modification of an existing custody order. The court shall hold

the hearing under this subsection in an expeditious manner.

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

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

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

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

harm to the child.

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

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

prejudice any party in a custody proceeding.

§ 5331.  Parenting plan.

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

may require the parties to submit parenting plans for the care

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

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

set forth in that parenting plan shall not be admissible as

evidence by another party.

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

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

child, including parenting time, holidays and vacations.

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

the child.

(3)  The health care of the child.

(4)  Child-care arrangements.

(5)  Transportation arrangements.

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

alleged breaches of the custody order may be adjudicated or

otherwise resolved through mediation, arbitration or other

means.

(7)  Any matter specified by the court.

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

the child.

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

parenting plan, it shall be submitted to the court in

substantially the following form:

CAPTION

PARENTING PLAN

This parenting plan involves the following child/children:

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

here:

Legal Custody (who makes decisions about certain things):

Circle one

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

Defendant

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

Defendant

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

Defendant

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

Defendant

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

Defendant

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

Defendant

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

Defendant

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

Defendant

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

Defendant

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

Defendant

Explain what process you will use to make decisions?

(For example, the parent confronted with or anticipating the

choice will call the other parent when the choice presents

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

hours of any deadline)

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

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

Physical Custody (where the child/children live)

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

Describe which days and which times of the day the

child/children will be with each person:

Sunday Monday  Tuesday  Wednesday  Thursday  Friday  Saturday

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

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

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

Drop-Off

Where...................................................

When....................................................

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

Pick-Up

Where ...................................................

When ....................................................

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

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

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

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

etc.), who will pay for which costs?

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

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

HOLIDAYS

Where will the child/children stay?

Summer Vacation Plans

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

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

Special Activities or School Activities

Temporary changes to this parenting schedule

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

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

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

the parent receiving the request will make the final decision.

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

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

No later than

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

The parent being asked for a change will reply

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

No later than

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

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

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

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

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

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

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

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

In the event that proposed changes, disputes or alleged breaches

of this parenting plan and custody order are necessary or

desired, the parties agree that such changes will be addressed

by the following method (specify method of arbitration,

mediation, court action, etc.):

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

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

The following matter or matters as specified by the court:

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

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

Other  (Anything else you want to agree on)

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

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

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

§ 5332.  Informational programs.

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

informational programs concerning parental duties.

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

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

lack of participation in any informational program by one of the

parties.

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

of the costs of the informational programs under this section.

§ 5333.  Counseling as part of order.

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

require the parties to attend counseling sessions.

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

order individual counseling for the abuser but may not order the

parties to attend joint counseling.

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

counseling sessions shall be verified by the counselor.

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

of the costs of the counseling sessions under this section.

§ 5334.  Guardian ad litem for child.

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

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

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

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

guardian ad litem must be an attorney at law.

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

charged with representation of the legal interests and the best

interests of the child during the proceedings and shall do all

of the following:

(1)  Meet If appropriate to the child's age and maturity,

<--

meet with the child as soon as possible following the

appointment, and on a regular basis thereafter in a manner

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appropriate to the child's age and maturity.

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

and county agency records, reports of examination of the

<--

parents or other custodian of the child and medical,

psychological and school records.

(3)  Participate in all proceedings.

(4)  Conduct such further investigation necessary to

ascertain the facts relevant facts for presentation to the

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court.

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

parents, caretakers and foster parents and caretakers, if

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any,. The guardian ad litem may examine and cross-examine

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witnesses and present witnesses and evidence necessary to

protect the best interests of the child.

(6)  Make specific recommendations in a written report to

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the court relating to the best interests of the child,

including any services necessary to address the child's needs

and safety. The court shall make the written report part of

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the record so that it may be reviewed by the parties. The

parties may file with the court written comments regarding

the contents of the report. The comments filed by the parties

shall also become part of the record.

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

appropriate given the child's age, mental condition and

emotional condition.

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

that they can be ascertained and present to the court

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

appropriate because of the age or mental and emotional

condition of the child, determine to the fullest extent

possible the wishes of the child and communicate this

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

wishes under this paragraph and the recommendations under

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

for the guardian ad litem.

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

are made, the court shall 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

(2)  the court is satisfied that the relevant information

will be presented to the court only with such appointment.

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

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

Professional Conduct, but may make legal argument based on

relevant evidence that shall be subject to examination by the

parties.