PRINTER'S NO. 1229
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
868
Session of
2019
INTRODUCED BY SANTARSIERO, FONTANA, MUTH, HUGHES, COLLETT,
BREWSTER, SCHWANK, COSTA, BLAKE AND MENSCH,
SEPTEMBER 30, 2019
REFERRED TO JUDICIARY, SEPTEMBER 30, 2019
AN ACT
Amending Titles 23 (Domestic Relations) and 42 (Judiciary and
Judicial Procedure) of the Pennsylvania Consolidated
Statutes, in child custody, further providing for
definitions, for award of custody, for factors to consider
when awarding custody, for consideration of criminal
conviction, for guardian ad litem for child, for counsel for
child and for award of counsel fees, costs and expenses; in
Administrative Office of Pennsylvania Courts, providing for
child abuse and domestic violence education and training
program for judges and court personnel; and, in depositions
and witnesses, further providing for rights and services.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. The General Assembly finds and declares as
follows:
(1) The Commonwealth has a duty to protect all children
in this Commonwealth and all three branches of the State
government play important roles in fulfilling that duty.
(2) Domestic 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
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relationship.
(3) Although abusers often use physical violence as one
of the tactics to commit domestic violence, not all abusers
engage in physical violence and most tactics are not physical
or illegal.
(4) Common tactics used to commit domestic violence
include verbal, emotional, psychological and economic abuse,
isolation, threats, including threats to seek custody if the
victim leaves, controlling behaviors, monitoring, litigation
abuse and demands for custody or joint custody to pressure
the partner to return or punish the partner for leaving.
(5) The health and safety of all children in this
Commonwealth must be the first priority in all decisions
concerning child custody.
(6) 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) It is the intent of the General Assembly to:
(i) Ensure that in all cases and controversies
before the courts involving questions of child custody,
the health, safety and welfare of the child are protected
and regarded as issues of paramount importance.
(ii) Rectify common past practices in this
Commonwealth that have been shown to work poorly for
children.
(iii) Encourage custody court professionals to
utilize current and valid scientific research in making
decisions regarding child custody.
Section 2. The definition of "abuse" in section 5322(a) of
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Title 23 of the Pennsylvania Consolidated Statutes is amended
and the subsection is amended by adding definitions to read:
§ 5322. Definitions.
(a) This chapter.--The following words and phrases when used
in this chapter shall have the meanings given to them in this
subsection unless the context clearly indicates otherwise:
"Abuse." As follows:
(1) As defined in section 6102 (relating to definitions)
[.] and the term includes the following:
(i) The crime of harassment pursuant to 18 Pa.C.S. §
2709 (relating to harassment).
(ii) The crime of stalking pursuant to 18 Pa.C.S. §
2709.1 (relating to stalking).
(2) The term does not include the justified use of force
in self-protection or for the protection of other persons in
accordance with 18 Pa.C.S. Ch. 5 (relating to general
principles of justification) by a party in response to abuse
or domestic violence by the other party.
* * *
"Health and safety of the child." The term includes, but is
not limited to, the physical, emotional and psychological
health, safety and well-being of the child.
* * *
"Therapeutic setting." Any setting where a licensed
therapist, counselor, social worker or other appropriate
professional guides or monitors the interaction between the
party and child and ensures the health and safety of the child.
Section 3. Section 5323(e) of Title 23 is amended to read:
§ 5323. Award of custody.
* * *
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(e) Safety conditions.--After considering the factors under
section [5328(a)(2)] 5328, 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],
restrictions or safeguards necessary to protect the child or the
abused party[.] and to minimize any risk of harm to the child.
The safety conditions, restrictions or safeguards may include a
supervised physical custody arrangement imposed on a parent by
the court. If the court orders a supervised physical custody
arrangement, the supervised physical custody arrangement shall
be conducted by a court-approved professional in a therapeutic
setting and under conditions that ensure the health and safety
of the child.
* * *
Section 4. Section 5328(a) of Title 23 is amended and the
section is amended by adding a subsection to read:
§ 5328. Factors to consider when awarding custody.
(a) Factors.--In ordering any form of custody, the court
shall determine the best interest of the child by considering
all relevant factors, giving weighted consideration to those
factors which affect the health and safety of the child,
including the following:
(1) Which party is more likely to ensure the health and
safety of the child. No form of custody may be awarded to a
parent or party who jeopardizes the health and safety of the
child by unreasonably placing the child at substantial risk
of severe emotional distress or bodily injury.
[(1)] (1.1) Which party is more likely to encourage and
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permit frequent and continuing contact between the child and
another party[.], except in cases of child abuse or domestic
violence or if the child's physical or emotional well-being
is jeopardized by one of the parties.
(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.
(2.1) The information set forth in section 5329.1(a)
(relating to consideration of child abuse and involvement
with protective services).
(2.2) A history of abuse committed by a party or member
of the party's household against any of the following:
(i) The other party.
(ii) A child in the party's household.
(iii) Any other party who currently or formerly
resided in the party's household.
(2.3) A significant history of violent, assaultive or
abusive behavior committed by a party or a member of the
party's household outside of the household or against a
nonfamily member that jeopardizes the health and safety of
the child by unreasonably placing the child at substantial
risk of severe emotional distress or bodily injury.
(3) The present and past parental [duties] and caretaker
duties performed by each party on behalf of the child.
(4) The need for stability and continuity in the child's
education, family life and community life except if changes
are necessary to protect the health and safety of the child.
(5) The availability of extended family.
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(6) The child's sibling relationships.
(7) The well-reasoned preference of the child, based on
the child's maturity and judgment. In assessing the factor
under this paragraph, the child's fear of a parent based on
the parent's specific conduct that is contrary to the child's
best interest shall be considered well-reasoned.
(8) The attempts of a parent to turn the child against
the other parent as proven by competent and admissible
evidence, except in cases of child abuse or domestic violence
where reasonable safety measures are necessary to protect the
child from harm. The following apply:
(i) A parent's reasonable concerns for a child's
safety and welfare and the parent's reasonable efforts to
educate, support and protect the child shall not be
considered attempts to turn the child against the other
parent.
(ii) In cases of child abuse and domestic violence,
the court shall not use the factor under this paragraph
in ordering any form of custody.
(iii) A child's deficient or negative relationship
with a parent shall not be presumed to be caused by the
other parent.
(iv) An order aimed at remediating a negative
parent-child relationship shall account for the behaviors
that the child's disfavored parent may have contributed
to the negative parent-child relationship.
(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
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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[.], including, but not limited
to, a risk to self, the child in particular or others, that
creates a risk to the health and safety of the child or a
party.
(15.1) Allegations of child abuse or a history of
domestic violence in the presence of the child. The following
shall apply:
(i) An evidentiary hearing limited to evidence
related to the issue of child abuse or domestic violence
shall be held if consideration is given under this
paragraph.
(ii) A parent's good faith disclosure of a
communication to the parent by the child of child abuse
or domestic violence shall not be a factor that weighs
against the safe parent in determining custody.
(iii) If the court finds by clear and convincing
evidence an act of child abuse or a pattern of domestic
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violence, including sexual abuse and trauma, by a parent,
the court shall award sole physical custody of the child
to the safe parent or party and shall suspend any
physical custody, except that it may award supervised
physical custody if it is in the best interest of the
child and supervised physical custody would protect the
health and safety of the child, to the parent engaged in
a pattern of domestic violence or abusive behavior. If a
parent shows by clear and convincing evidence that the
parent is no longer a threat to the health and safety of
the child after completion of a court-approved treatment
plan, the court may award custody other than supervised
physical custody to the parent. Any cost incurred for
supervised physical custody shall be paid by the abusing
parent.
(iv) Statements and testimony provided pursuant to
an evidentiary hearing under this paragraph may not be
used in another civil proceeding, criminal trial or any
other forum.
(15.2) Evidence of child abuse.
(16) Any other relevant factor.
(a.1) Conditions.--
(1) In considering the awarding of custody, including
psychological or medical theories proffered by the parties
under subsection (a), the court shall:
(i) Consider evidence of the parent's current mental
health condition and the risk that the parent will again
subject the child or other household members to domestic
abuse or unreasonably permit abuse to a child despite
having the ability to prevent the abuse.
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(ii) Order custody only if the parent proves by
clear and convincing evidence that the custody is in the
best interest of the child and that the parent will not
cause any unreasonable physical, emotional or
psychological harm to the child.
(iii) In the case of a supervised physical custody
imposed on a parent, order restrictions, conditions and
safeguards necessary to minimize any risk of harm to the
child, including extending the supervised physical
custody.
(2) A supervised physical custody arrangement imposed on
a parent by a court shall be conducted by a court-approved
professional in a therapeutic setting and under conditions
that ensure the health and safety of the child. The
supervised physical custody arrangement shall not be
conducted in the parent's home and shall not extend
overnight. All costs of the supervision shall be paid by the
parent awarded supervised physical custody.
(3) No act of self-defense by a parent in response to
the family violence or domestic abuse of the other parent
shall be deemed family violence or domestic violence for the
purposes of this section.
(4) All costs, including the other parent's attorney
fees and the fees of any counsel for the child and all
treatment expenses incurred in compliance with this section,
shall be paid by the parent who is found to have committed
child abuse or domestic violence.
* * *
Section 5. Sections 5329(a), 5334(c), 5335(b) and 5339 of
Title 23 are amended to read:
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§ 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 party 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. § 2718 (relating to strangulation).
18 Pa.C.S. § 2901 (relating to kidnapping).
18 Pa.C.S. § 2902 (relating to unlawful restraint).
18 Pa.C.S. § 2903 (relating to false imprisonment).
18 Pa.C.S. § 2910 (relating to luring a child into a motor
vehicle or structure).
18 Pa.C.S. § 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).
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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.
* * *
§ 5334. Guardian ad litem for child.
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* * *
(c) Abuse.--If substantial allegations of abuse of the child
or substantial allegations of domestic violence which impacts
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[.];
or
(3) the guardian ad litem establishes that the guardian
ad litem received education and training under the program
specified under 42 Pa.C.S. § 1908 (relating to child abuse
and domestic violence education and training program for
judges and court personnel) or substantially similar
training.
* * *
§ 5335. Counsel for child.
* * *
(b) Abuse.--Substantial allegations of abuse of the child
and substantial allegations of domestic violence which impacts
the child constitute a reasonable basis for appointing counsel
for the child.
* * *
§ 5339. Award of counsel fees, costs and expenses.
(a) Award.--Under this chapter, a court may award reasonable
interim or final counsel fees, costs and expenses to a party if
the court finds that the conduct of another party was obdurate,
vexatious, repetitive or in bad faith.
(b) Other costs.--The court may direct that a party who has
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been found to have perpetrated abuse to pay all or a portion of
the fees, costs and expenses incurred by the other party,
including attorney fees, costs relating to any counsel for the
child and treatment expenses incurred relating to the abuse.
Section 6. Title 42 is amended by adding a section to read:
§ 1908. Child abuse and domestic violence education and
training program for judges and court personnel.
The Administrative Office of Pennsylvania Courts may develop
and implement an ongoing education and training program for
judges, including magisterial district judges, and relevant
court personnel, including guardians ad litem, regarding child
abuse, including child sexual abuse and trauma, domestic
violence and the impact of child abuse and domestic violence on
children. The education and training program shall include the
latest best practices from evidence-based and peer-reviewed
research. The education and training program shall be designed
to improve the ability of courts to recognize and respond to the
impact of child abuse, domestic violence and trauma on all
victims, specifically children, and make appropriate custody
decisions that are in the best interest of the child.
Section 7. Section 5983(a) of Title 42 is amended to read:
§ 5983. Rights and services.
(a) Designation of persons to act on behalf of children.--
Courts of common pleas may designate one or more persons as a
child advocate to provide the following services on behalf of
children who are involved in criminal proceedings as victims or
material witnesses[:] or children who are the subject of custody
proceedings and who are alleged to have been abused by a party
in the custody proceedings or have been impacted by domestic
violence perpetrated by a party in the custody proceedings:
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(1) To explain, in language understood by the child, all
legal proceedings in which the child will be involved.
(2) As a friend of the court, to advise the judge,
whenever appropriate, of the child's ability to understand
and cooperate with any court proceedings.
(3) To assist or secure assistance for the child and the
child's family in coping with the emotional impact of the
crime and subsequent criminal proceedings in which the child
is involved.
* * *
Section 8. This act shall take effect in 60 days.
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