PRINTER'S NO. 3136
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
1971
Session of
2015
INTRODUCED BY DAVIS, ROZZI, GALLOWAY, READSHAW, V. BROWN,
SCHREIBER, D. COSTA, COHEN, YOUNGBLOOD, McNEILL, SCHWEYER,
PASHINSKI, DeLUCA, O'BRIEN, DRISCOLL, DAVIDSON AND FARINA,
APRIL 8, 2016
REFERRED TO COMMITTEE ON JUDICIARY, APRIL 8, 2016
AN ACT
Amending Title 23 (Domestic Relations) of the Pennsylvania
Consolidated Statutes, in child custody, adding provisions
relating to domestic violence cases; and making an editorial
change.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Chapter 53 of Title 23 of the Pennsylvania
Consolidated Statutes is amended by adding a subchapter heading
immediately before section 5321 to read:
SUBCHAPTER A
GENERAL PROVISIONS
Section 2. Chapter 53 is amended by adding a subchapter to
read:
SUBCHAPTER B
DOMESTIC VIOLENCE CASES
Sec.
5351. Findings.
5352. Intent.
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5353. Definitions.
5354. Domestic violence experts.
5355. Mental health evaluators.
5356. Information in domestic violence cases.
5357. Evidentiary hearing.
5358. Child sexual abuse.
5359. Award of custody.
5360. Prohibited actions of court.
5361. Training and retraining.
5362. Modification of existing order.
§ 5351. Findings.
The General Assembly finds and declares as follows:
(1) Domestic violence is a pattern of coercive and
controlling tactics by one partner against another in an
intimate partner relationship designed to maintain control
over the partner and make the major decisions in the
relationship.
(2) These tactics are intended to induce fear in the
partner.
(3) Although abusers often use physical violence as one
of the tactics, not all abusers engage in physical violence
and most tactics are not physical and not illegal.
(4) Common tactics include verbal, emotional,
psychological and economic abuse, isolating tactics, threats,
including threats to seek custody if the victim leaves,
controlling behaviors, monitoring, litigation abuse, and,
especially, demands for custody or joint custody in order to
pressure the partner to return or punish the partner for
leaving.
(5) The health and safety of children must be the first
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priority in all decisions concerning child custody and
visitation.
(6) In child custody proceedings in which there are
allegations of domestic violence, expertise in domestic
violence is required to determine if the allegations are
valid.
(7) Promoting safety of children includes both
preventing direct assault of children and creating situations
that may decrease the likelihood children will engage in
harmful behaviors.
(8) Common examples of situations that create a safety
risk for children include:
(i) Separating children from their primary
attachment figure, which has been shown to increase the
risk of children to suffer from depression or low self-
esteem, or to commit suicide when older.
(ii) Witnessing domestic violence, which has been
shown to interfere with the ability of children to reach
developmental milestones and increase the likelihood the
children will engage in a wide range of harmful behaviors
when older.
(9) Additional State funding may be necessary to meet
the needs to train judges and other court professionals in
the handling of child custody proceedings in which one or
more parties have alleged domestic violence or child sexual
abuse.
§ 5352. Intent.
It is the intent of the General Assembly:
(1) To correct common practices that have been shown to
work poorly for children.
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(2) To encourage custody court professionals to utilize
current, valid, scientific research in making decisions.
§ 5353. 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:
"Department." The Department of Human Services of the
Commonwealth.
"Domestic violence case." A child custody proceeding in
which exists:
(1) an allegation of domestic violence; or
(2) evidence or information that supports the
possibility that one or both parties engaged in domestic
violence tactics.
§ 5354. Domestic violence experts.
(a) General rule.--A professional who provides advice or
recommendations to the court in a domestic violence case must
have substantial expertise about subjects necessary to
understand safety issues, including, but not limited to:
(1) Behaviors that are associated with higher risk of
injury or death.
(2) Domestic violence dynamics.
(3) The effect of domestic violence on children.
(4) Recognition of domestic violence.
(5) Research regarding batterer narratives.
(b) When consultation with professional required.--A
professional who provides advice or recommendations to the court
who does not have the expertise described in subsection (a)
shall consult with a professional who has the expertise
described in subsection (a).
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(c) Educational degrees.--
(1) A degree in psychology, psychiatry or social work
shall not constitute proof that a professional has
substantial domestic violence expertise or the expertise
described in subsection (a).
(2) A person without a degree in psychology, psychiatry
or social work shall be permitted to provide advice or
recommendations to the court or to act as a domestic violence
expert or a witness, if the person demonstrates domestic
violence expertise based on training and experience.
(d) Appointment of domestic violence experts.--The court may
appoint a domestic violence expert to help the court understand
the significance of evidence related to domestic violence.
(e) Evidence.--The court shall permit a party to a domestic
violence case to present evidence from a domestic violence
expert if the expert is qualified as described in this section.
§ 5355. Mental health evaluators.
(a) General rule.--The court may not appoint a mental health
evaluator in a domestic violence case if there is no substantial
basis to believe the parties or children have a significant
mental health impairment.
(b) When appointment permissible.--The court may appoint a
mental health evaluator in a domestic violence case if:
(1) One or more parties to or any children involved in
the domestic violence case have a significant mental health
impairment.
(2) The mental health evaluator demonstrates clear
expertise in domestic violence and child abuse matters.
§ 5356. Information in domestic violence cases.
A judge hearing domestic violence cases shall:
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(1) Utilize current, valid scientific research that is
recognized by reputable professional organizations and
government offices regarding domestic violence to reach a
decision.
(2) Avoid theories regarding domestic violence that have
been rejected by reputable professional organizations and
government offices. Such theories include, but are not
limited to:
(i) The belief that sexual intercourse between
children and adults can be acceptable.
(ii) The assumption that women or children
frequently make false allegations of abuse.
§ 5357. Evidentiary hearing.
(a) General rule.--Before the court may appoint counsel to
represent a child, an evaluator or any other professional, the
court shall conduct an evidentiary hearing to determine if a
party to the proceeding has engaged in a pattern of domestic
violence tactics.
(b) When evidence may be considered.--If the court does not
make a finding that a party to the proceeding has engaged in a
pattern of domestic violence tactics, the court may not refuse
to consider additional evidence of domestic violence presented
later in the case.
(c) Applicability.--This section shall apply to a child
custody proceeding in which any of the following are present:
(1) An allegation of domestic violence.
(2) A history between the parties to the proceeding that
includes restraining orders.
(3) Criminal charges.
(4) Any other evidence of domestic violence.
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§ 5358. Child sexual abuse.
In a child custody proceeding involving an allegation of
child sexual abuse:
(1) A professional conducting a risk assessment or
evaluation at the request of the court must have significant
experience working with children and expertise in child
sexual abuse.
(2) A professional as described in paragraph (1) shall
develop a trusting relationship with the child before
expecting the child to speak about allegations of child
sexual abuse.
(3) A recantation of child sexual abuse allegations by
the child shall not by itself be treated as proof the
allegations are untrue.
(4) If an attorney for the Commonwealth, the department
or a child protective services agency decides not to file
charges against the alleged perpetrator of child sexual
abuse, the decision shall not by itself be treated as proof
the allegations of child sexual abuse are untrue.
(5) Before making a finding that allegations of child
sexual abuse were deliberately false, the court shall
consider:
(i) Whether there is sufficient information to
determine the validity of the allegations.
(ii) Whether the allegations were made by mistake in
good faith.
(6) If the court makes a finding that allegations of
child sexual abuse were deliberately false in accordance with
this section, the court shall consider new evidence in the
context of the evidence previously presented.
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§ 5359. Award of custody.
(a) General rule.--If the court determines by a
preponderance of the evidence that one party to a domestic
violence case engaged in domestic violence tactics, the court
shall:
(1) Award sole custody to the other party, unless the
court finds that making such an award would risk the health
and safety of the child.
(2) Initially award supervised physical custody to the
abusive party. The court may award partial physical custody
to the abusive party if the person:
(i) Completes an accountability program, the
duration of which shall be at least six months.
(ii) Accepts full responsibility for past abuse.
(iii) Commits to never abusing the child, the abused
party and future partners.
(iv) Demonstrates an understanding of the harm
caused by abuse.
(v) Proves to the court that the benefit of an award
of partial physical custody outweighs the risk.
(b) Joint custody.--
(1) The court may not award joint custody in a child
custody proceeding if there is an allegation or evidence of
domestic violence or child abuse.
(2) The court may not award joint custody unless both
parties freely consent to the award of joint custody.
(c) Termination of order.--If the court makes an award of
custody to the abusive party and the court finds that the
abusive party has committed further abuse, the court shall
terminate the abusive party's order of custody.
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§ 5360. Prohibited actions of court.
In a domestic violence case or a child custody proceeding in
which there are allegations of child abuse, the court may not:
(1) take adverse action in an award of custody against a
party who makes a good faith allegation of child abuse or
domestic violence; or
(2) use approaches designed for high conflict child
custody proceedings commonly used to encourage parties to
cooperate.
§ 5361. Training and retraining.
(a) General rule.--The following court professionals shall
receive training under this subchapter:
(1) A judge who hears child custody cases involving
domestic violence or child sexual abuse.
(2) An attorney appointed to represent children in child
custody cases involving domestic violence or child sexual
abuse.
(b) Contents of training.--Training shall include the
following:
(1) Compliance with the practices under this subchapter.
(2) Current scientific research in domestic violence and
child sexual abuse.
(3) Retraining regarding prior standard practices that
have been shown to work poorly for children.
(c) Conduct of training.--Training shall be conducted by
domestic violence advocates or other experts knowledgeable about
the safety practices and scientific research described in this
subchapter.
§ 5362. Modification of existing order.
A party to a child custody proceeding in which:
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(1) domestic violence or child sexual abuse was alleged;
and
(2) an order of custody was issued prior to the
effective date of this section,
may petition the court to modify the order of custody to serve
the best interests of the child in accordance with this
subchapter.
Section 2. This act shall take effect in 90 days.
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