Regular Session 2017-2018 House Bill 1539 P.N. 3353

PRIOR PRINTER'S NOS. 1996, 3311

PRINTER'S NO. 3353

THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

No.

1539

Session of

2017

INTRODUCED BY PASHINSKI, DRISCOLL, THOMAS, FREEMAN, ROTHMAN,

KINSEY, VAZQUEZ, MILLARD, READSHAW, SCHLOSSBERG, DAVIS,

CALTAGIRONE, HILL-EVANS, TOOHIL, KORTZ, PHILLIPS-HILL,

SAMUELSON, HARKINS, DeLUCA, WARREN, FARRY, MADDEN, ROZZI,

SNYDER, SAINATO, BERNSTINE, WATSON, DOWLING, DALEY, ENGLISH

AND BARBIN, JUNE 13, 2017

AS AMENDED ON SECOND CONSIDERATION, HOUSE OF REPRESENTATIVES,

APRIL 16, 2018

AN ACT

Amending Title 23 (Domestic Relations) of the Pennsylvania

Consolidated Statutes, in standby guardianship, further

providing for definitions and for scope and providing for

temporary guardianship; in child protective services, further

providing for release of information in confidential reports;

and making editorial changes.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. The heading of Chapter 56 of Title 23 of the

Pennsylvania Consolidated Statutes is amended to read:

CHAPTER 56

STANDBY AND TEMPORARY GUARDIANSHIP

Section 2. Sections 5602 and 5603 of Title 23 are amended to

read:

§ 5602. Definitions.

The following words and phrases when used in this chapter

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

context clearly indicates otherwise:

"Alternate." A person with all the rights, responsibilities

and qualifications of a standby guardian who shall become a

standby guardian only in the event that the currently designated

standby guardian is unable or refuses to fulfill his obligation.

"Attending physician." A physician who has primary

responsibility for the treatment and care of the designator. If

physicians share responsibility, another physician is acting on

the attending physician's behalf or no physician has primary

responsibility, any physician who is familiar with the

designator's medical condition may act as an attending physician

under this chapter.

"Coguardian." A person who along with a parent shares

physical or legal custody, or both, of a child.

"Consent." A written authorization signed by the designator

in the presence of two witnesses who shall also sign the

writing. The witnesses must be 18 years of age or older and not

named in the designation.

"Court." Family Court Division or domestic relations section

of a court of common pleas unless otherwise provided by local

rules of court.

"Debilitation." A person's chronic and substantial inability

as a result of a physically incapacitating disease or injury to

care for a dependent minor.

"Designation." A written document naming the standby

guardian or temporary guardian. A parent, a legal custodian or a

legal guardian may designate an alternate standby guardian in

the same writing.

"Designator." A parent, a legal custodian or a legal

guardian who appoints a standby guardian or temporary guardian.

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"Determination of debilitation." A written finding made by

an attending physician which states that the designator suffers

from a physically incapacitating disease or injury. No

identification of the illness in question is required.

"Determination of incapacity." A written finding made by an

attending physician which states the nature, extent and probable

duration of the designator's mental or organic incapacity.

"Family member." A grandparent, aunt, uncle or adult sibling

of a minor.

"Incapacity." A chronic and substantial inability, resulting

from a mental or organic impairment, to understand the nature

and consequences of decisions concerning the care of the

designator's dependent minor and a consequent inability to care

for the minor.

"Standby guardian." A person named by a designator to assume

the duties of coguardian or guardian of a minor and whose

authority becomes effective upon the incapacity, debilitation

and consent, or death of the minor's parent.

"Temporary guardian." A family member, appointed by a court

for a limited period as a guardian of the minor when the minor's

custodial parent has entered a rehabilitation facility for

treatment of drug or alcohol addiction or has been subject to

emergency medical intervention due to abuse of drugs or alcohol.

"Triggering event." A specified occurrence stated in the

designation which empowers a standby guardian to assume the

powers, duties and responsibilities of guardian or coguardian.

§ 5603. Scope.

The provisions of Chapter 53 (relating to custody) and 20

Pa.C.S. Ch. 25 (relating to wills) shall apply to standby

guardians, coguardians, guardians, temporary guardians and any

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alternates unless otherwise specified in this chapter. Nothing

in this chapter shall be construed to deprive any parent,

custodial or noncustodial, of legal parental rights. Nothing in

this chapter shall be construed to relieve any parent, custodial

or noncustodial, of a duty to support a child under the

provisions of Chapter 43 (relating to support matters

generally).

Section 3. The heading of Subchapter B of Chapter 56 of

Title 23 is amended to read:

SUBCHAPTER B

[GENERAL PROVISIONS] STANDBY GUARDIANSHIP

Section 4. Chapter 56 of Title 23 is amended by adding a

subchapter to read:

SUBCHAPTER C

TEMPORARY GUARDIANSHIP

Sec.

5621. Designation.

5622. Petition for approval of designation.

5623. Authority of temporary guardian.

5624. Period of temporary guardianship.

5625. Termination of temporary guardianship.

§ 5621. Designation.

(a) General rule.--Except as provided in subsection (b), a

custodial parent may designate a temporary guardian by means of

a written designation unless the minor has another parent or

adoptive parent:

(1) whose parental rights have not been terminated or

relinquished;

(2) whose whereabouts are known; and

(3) who is willing and able to make and carry out the

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day-to-day child-care decisions concerning the minor.

(b) Exception where other parent consents.--Notwithstanding

subsection (a), a parent, legal custodian or legal guardian may

designate a temporary guardian with the consent of the other

parent.

(1) A designation of a temporary guardianship shall

identify the custodial parent, the minor or minors, any other

parent, the temporary guardian and the triggering event or

events upon which a named temporary guardian shall become a

coguardian or guardian. The designation shall also include

the signed consent of the temporary guardian and the signed

consent of any other parent or an indication why the other

parent's consent is not necessary.

(2) The designation shall be signed by the designating

parent in the presence of two witnesses who are 18 years of

age or older and not otherwise named in the designation, who

shall also sign the designation.

(3) A parent may also but need not designate an

alternate in the designation.

(4) A designation may but need not be in the following

form:

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

(Insert name of designator) do hereby appoint

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

(Insert name, address and telephone number of temporary

guardian) as the temporary guardian of

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

(Insert name(s) of minor(s) to take effect upon

.................... (Date).

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I am the mother/father/other to ........................

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

(Insert name(s) of minor(s)).

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

(Insert name(s) of other parent(s) of minor(s)) is the

father/mother/other of ...............................

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

(Insert name(s) of minor(s)).

By this designation, I am granting ...................

(insert name of temporary guardian) the authority to act for

90 days following the occurrence of ...................

as a coguardian with me or as guardian of my minor

child(ren).

It is my intention to retain full parental rights to the

extent consistent with my condition and to retain the

authority to revoke the temporary guardianship if I so

choose.

This designation is made after careful reflection, while I am

of sound mind.

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

(Date) (Designator's signature)

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

(Witness's signature) (Witness's signature)

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

(Number and Street) (Number and Street)

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

(City, State and Zip Code) (City, State and Zip Code)

If applicable: I, ....................................... ,

(Insert name of other parent)

hereby consent to this designation.

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

(Date) (Signature of other parent)

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

(Address of other parent)

I, ........................................................

(Insert name of temporary guardian), hereby accept my

nomination as temporary guardian of ......................

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

(Insert minor(s)'s name(s)). I understand that my rights and

responsibilities toward the minor child(ren) named above will

become effective upon ......................... (Date)

I further understand that in order to continue as temporary

guardian for the child(ren), I must file a petition with the

court of common pleas within 30 days of the order granting

the petition for temporary guardianship.

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

(Date) (Signature of temporary guardian)

NOTARY SEAL

I hereby revoke the above temporary guardianship agreement.

.......................................... (Parent signature)

.............................. (Date)

NOTARY SEAL

§ 5622. Petition for approval of designation.

(a) General rule.--Except as provided in subsection (b), a

petition for court approval of a designation under this chapter

may be made when an individual who is a custodial parent of a

minor has entered a rehabilitation facility for treatment of a

drug or alcohol addiction or has been subject to emergency

medical intervention due to abuse of drugs or alcohol by filing

with the court a copy of the designation.

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(b) Exception where designation has not been entered.--If a

custodial parent has been subject to emergency medical

intervention due to abuse of drugs or alcohol and a written

designation has not been executed, a family member shall

petition the court to hold a hearing to be designated temporary

guardian. THE PETITION, WHICH SHALL REQUIRE THE NOTARIZED

SIGNATURE OF THE PETITIONER, SHALL BE PROVIDED BY THE COURT IN

THE FOLLOWING FORM:

PETITION FOR TEMPORARY GUARDIANSHIP WITHOUT CONSENT OF PARENT

I,.......................................................

(INSERT NAME, ADDRESS AND TELEPHONE NUMBER OF FAMILY MEMBER

PETITIONING FOR TEMPORARY GUARDIANSHIP AND RELATIONSHIP TO

MINOR), HEREBY DECLARE MY INTENT TO BE APPOINTED TEMPORARY

GUARDIAN OF ................................................

(INSERT NAME(S), ADDRESS(ES) AND TELEPHONE NUMBER(S) OF MINOR(S)

FOR WHOM THE APPOINTMENT OF TEMPORARY GUARDIAN IS BEING SOUGHT)

AS A RESULT OF EMERGENCY MEDICAL INTERVENTION RESULTING FROM

ABUSE OF DRUGS OR ALCOHOL BY ................................

.......... (INSERT NAME, ADDRESS AND TELEPHONE NUMBER),

FATHER/MOTHER TO ......................................(INSERT

NAME(S) OF MINOR(S)), ON ...........................(INSERT

APPROXIMATE DATE OF THE EVENT).

I HAVE NOTIFIED THE CHILD(REN)'S OTHER PARENT,.............

.................................................(INSERT NAME,

ADDRESS AND TELEPHONE NUMBER), OF MY INTENT TO PETITION THIS

COURT FOR TEMPORARY GUARDIANSHIP.

I UNDERSTAND THAT FILING THIS PETITION DOES NOT REVOKE THE

PARENTAL RIGHTS OF THE MINOR'S PARENT(S) NOR DOES IT GRANT ME

ANY PARENTAL RIGHTS.

I UNDERSTAND THAT MY RIGHTS AND RESPONSIBILITIES AS A

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<--

TEMPORARY GUARDIAN TOWARD THE MINOR CHILD(REN) NAMED ABOVE WILL

BECOME EFFECTIVE UPON THE COMPLETION OF A HEARING AND RENDERING

OF A DECISION BY THE COURT.

I UNDERSTAND THAT FILING FEES AND OTHER COSTS ASSOCIATED WITH

THESE PROCEEDINGS MAY BE WAIVED IF I DEMONSTRATE THE FEES AND

OTHER COSTS WOULD CONSTITUTE A FINANCIAL BURDEN TO ME AND MY

FAMILY.

I HEREBY SWEAR OR AFFIRM THAT THE INFORMATION CONTAINED

HEREIN IS TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE.

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

(DATE) (SIGNATURE OF PETITIONER)

(1) The court shall notify a person named in the

designation within 10 days of the filing of the petition and

of any hearing on the petition.

(2) If a designation has not been executed, the

petitioner shall notify the custodial parent or parents,

noncustodial parent or adoptive parent within 10 days of the

filing of the petition and of any hearing on the petition.

(3) If the petition alleges that a noncustodial parent

cannot be located, that parent shall be notified in

accordance with the notice provisions of the Pennsylvania

Rules of Civil Procedure in custody matters. No notice is

necessary to a parent whose parental rights have previously

been terminated or relinquished.

(d) Jurisdiction.--For purposes of determining jurisdiction

under this chapter, the provisions of Chapter 54 (relating to

uniform child custody jurisdiction and enforcement) shall apply.

(e) Presumptions.--In a proceeding for judicial appointment

of a temporary guardian, a designation shall constitute a

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rebuttable presumption that the designated temporary guardian is

capable of serving as coguardian or guardian. When the

designator is the sole surviving parent and when the parental

rights of any noncustodial parent have been terminated or

relinquished or when all parties consent to the designation

there shall be a rebuttable presumption that entry of the

approval order is in the best interest of the child. In any

case, if the court finds entry of the approval order to be in

the best interests of the child, the court shall enter an order

approving the designation petition.

(f) Approval without hearing.--Approval of the designation

without a hearing is permitted when the designator is the sole

surviving parent, when the parental rights of a noncustodial

parent have been terminated or relinquished or when all parties

consent to entry of the approval order.

(g) Hearing.--If a hearing is required, it shall be

conducted in accordance with the proceedings under Chapters 53

(relating to child custody) and 54.

(h) Court appearance.--If a designation has not been

executed and a petition for temporary guardianship has been

filed with the court by a family member, the custodial parent

and noncustodial parent or adoptive parent shall appear in court

in order to consent to or oppose the designation. If notice has

been given under subsection (c)(3) and a noncustodial parent

does not appear in court, it is presumed that consent to the

designation has been granted.

(i) Costs.--A court may waive filing fees and other costs

upon application when the petitioner demonstrates the fees and

other costs would constitute a financial burden upon the

petitioner and the petitioner's family. There shall be a

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presumption of a financial burden if the income from all sources

of the petitioner is less than 300% of the poverty level set by

the Federal Government.

§ 5623. Authority of temporary guardian.

(a) Authority.--

(1) The temporary guardian shall have the authority to

act as coguardian or guardian upon a custodial parent

entering into an alcohol or drug treatment facility or upon a

court ordering the designation pursuant to hearing under

subsection 5622(b) (relating to petition for approval of

designation).

(2) The commencement of the temporary guardian's

authority to act as coguardian shall not itself divest the

custodial parent of parental rights but shall confer upon the

temporary guardian concurrent or shared custody of the child.

(3) A coguardian shall assure frequent and continuing

contact with and physical access to the child and shall

further assure the involvement of the custodial parent, to

the greatest extent possible, in the decision making on

behalf of the child.

(4) The commencement of a temporary guardian's authority

under this subchapter shall not itself divest a parent or

legal guardian of parental or guardianship rights.

(b) Limitations on authority.--In addition to any other

restrictions placed on a temporary guardian by the court, the

temporary guardian may not:

(1) remove the minor or permit the minor to be removed

from the United States either permanently or temporarily

without the consent of the custodial parent and the approval

of the court; or

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(2) remove the minor from this Commonwealth absent a

court order, which may only be issued after a hearing at

which both parents and the minor shall have the right to be

present.

§ 5624. Period of temporary guardianship.

(a) Initial period.--Temporary guardianship under this

subchapter shall be limited to not more than 90 days from entry

of the order of temporary guardianship.

(b) Extension of guardianship.--Upon approval by the court

or by written agreement of the temporary guardian and the parent

who has entered a rehabilitation facility, temporary

guardianship shall be extended for periods of up to 90

additional days.

this section shall not exceed 365 days.

§ 5625. Termination of temporary guardianship.

(a) Conditions.--A court shall terminate a temporary

guardianship if any of the following exists:

(1) The custodial parent demonstrates the basis for the

temporary guardianship no longer exists.

(2) The custodial parent and temporary guardian agree

upon termination.

(3) The temporary guardian files a petition with the

court seeking termination.

(4) Subject to subsection (b), a noncustodial or

adoptive parent files a petition with the court seeking

termination of the guardianship.

(5) The temporary guardian or an individual who resides

with the temporary guardian commits an offense that results

in the temporary guardian or an individual who resides with

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the temporary guardian being identified as a perpetrator as

defined in section 6303 (relating to definitions).

(b) Mandatory considerations.--Before terminating an order

for temporary guardianship under subsection (a)(4), the court

shall consider if termination of the temporary guardianship is

in the best interests of the minor if the individual's parental

rights were previously terminated.

Section 5. Section 6340(a)(5.1) of Title 23 is amended to

read:

§ 6340. Release of information in confidential reports.

(a) General rule.--Reports specified in section 6339

(relating to confidentiality of reports) shall only be made

available to:

* * *

(5.1) A court of common pleas in connection with any

matter involving custody of a child as set forth in sections

5328 (relating to factors to consider when awarding custody)

and 5329.1 (relating to consideration of child abuse and

involvement with protective services) or temporary

guardianship of a child under Chapter 56 (relating to standby

and temporary guardianship).

* * *

Section 6. This act shall take effect in 60 days.

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