PRINTER'S NO. 2773
No. 2083 Session of 2003
INTRODUCED BY BROWNE, BLAUM, CAPPELLI, GINGRICH, KELLER, PAYNE,
REICHLEY, RUBLEY, THOMAS, WEBER, YOUNGBLOOD AND FORCIER,
OCTOBER 14, 2003
REFERRED TO COMMITTEE ON JUDICIARY, OCTOBER 14, 2003
AN ACT
1 Amending Title 23 (Domestic Relations) of the Pennsylvania
2 Consolidated Statutes, further providing for child custody
3 jurisdiction and enforcement.
4 The General Assembly of the Commonwealth of Pennsylvania
5 hereby enacts as follows:
6 Section 1. Section 5310 of Title 23 of the Pennsylvania
7 Consolidated Statutes is amended to read:
8 § 5310. Modification of existing custody orders.
9 Any order for the custody of the child of a marriage entered
10 by a court in this Commonwealth or any state may, subject to the
11 jurisdictional requirements set forth in [42 Pa.C.S. §§ 5342
12 (relating to purposes and construction of subchapter) and 5344
13 (relating to jurisdiction)] Chapter 54 (relating to uniform
14 child custody jurisdiction and enforcement), be modified at any
15 time to an order of shared custody in accordance with this
16 subchapter.
17 Section 2. Subchapter B of Chapter 53 of Title 23 is
18 repealed.
1 Section 3. Title 23 is amended by adding a chapter to read:
2 CHAPTER 54
3 UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT
4 Subchapter
5 A. General Provisions
6 B. Jurisdiction
7 C. Enforcement
8 D. Intrastate Application
9 E. Miscellaneous Provisions
10 SUBCHAPTER A
11 GENERAL PROVISIONS
12 Sec.
13 5401. Short title of chapter.
14 5402. Definitions.
15 5403. Proceedings governed by other law.
16 5404. Application to Native American tribes.
17 5405. International application of chapter.
18 5406. Effect of child custody determination.
19 5407. Priority.
20 5408. Notice to persons outside Commonwealth.
21 5409. Appearance and limited immunity.
22 5410. Communication between courts.
23 5411. Taking testimony in another state.
24 5412. Cooperation between courts; preservation of records.
25 § 5401. Short title of chapter.
26 This chapter shall be known and may be cited as the Uniform
27 Child Custody Jurisdiction and Enforcement Act.
28 § 5402. Definitions.
29 The following words and phrases when used in this chapter
30 shall have the meanings given to them in this section unless the
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1 context clearly indicates otherwise:
2 "Abandoned." Left without provision for reasonable and
3 necessary care or supervision.
4 "Child." An individual who has not attained 18 years of age.
5 "Child custody determination." A judgment, decree or other
6 order of a court providing for legal custody, physical custody
7 or visitation with respect to a child. The term includes a
8 permanent, temporary, initial and modification order. The term
9 does not include an order relating to child support or other
10 monetary obligation of an individual.
11 "Child custody proceeding." A proceeding in which legal
12 custody, physical custody or visitation with respect to a child
13 is an issue. The term includes a proceeding for divorce,
14 separation, neglect, abuse, dependency, guardianship, paternity,
15 termination of parental rights and protection from domestic
16 violence, in which the issue may appear. The term does not
17 include a proceeding involving juvenile delinquency, contractual
18 emancipation or enforcement under Subchapter C (relating to
19 enforcement).
20 "Commencement." The filing of the first pleading in a
21 proceeding.
22 "Court." An entity authorized under the law of a state to
23 establish, enforce or modify a child custody determination.
24 "Home state." The state in which a child lived with a parent
25 or a person acting as a parent for at least six consecutive
26 months immediately before the commencement of a child custody
27 proceeding. In the case of a child six months of age or younger,
28 the term means the state in which the child lived from birth
29 with any of the persons mentioned. A period of temporary absence
30 of any of the mentioned persons is part of the period.
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1 "Initial determination." The first child custody
2 determination concerning a particular child.
3 "Issuing court." The court that makes a child custody
4 determination for which enforcement is sought under this
5 chapter.
6 "Modification." A child custody determination that changes,
7 replaces, supersedes or is otherwise made after a previous
8 determination concerning the same child, whether or not it is
9 made by the court that made the previous determination.
10 "Person." An individual, corporation, business trust,
11 estate, trust, partnership, limited liability company,
12 association, joint venture, government or governmental
13 subdivision, agency or instrumentality, public corporation or
14 any other legal or commercial entity.
15 "Person acting as a parent." A person, other than a parent,
16 who:
17 (1) has physical custody of the child or has had
18 physical custody for a period of six consecutive months,
19 including any temporary absence, within one year immediately
20 before the commencement of a child custody proceeding; and
21 (2) has been awarded legal custody by a court or claims
22 a right to legal custody under the laws of this Commonwealth.
23 "Physical custody." The physical care and supervision of a
24 child.
25 "State." A state of the United States, the District of
26 Columbia, Puerto Rico, the United States Virgin Islands or any
27 territory or insular possession subject to the jurisdiction of
28 the United States.
29 "Tribe." A Native American tribe or band, or Alaskan Native
30 village, which is recognized by Federal law or formally
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1 acknowledged by a state.
2 "Warrant." An order issued by a court authorizing law
3 enforcement officers to take physical custody of a child.
4 § 5403. Proceedings governed by other law.
5 This chapter does not govern an adoption proceeding or a
6 proceeding pertaining to the authorization of emergency medical
7 care for a child.
8 § 5404. Application to Native American tribes.
9 (a) Primacy of Indian Child Welfare Act.--A child custody
10 proceeding that pertains to a Native American child as defined
11 in the Indian Child Welfare Act of 1978 (Public Law 95-608, 25
12 U.S.C. § 1901 et seq.) is not subject to this chapter to the
13 extent that it is governed by the Indian Child Welfare Act of
14 1978.
15 (b) Tribe treated as state.--A court of this Commonwealth
16 shall treat a tribe as if it were a state of the United States
17 for the purpose of applying Subchapter B (relating to
18 jurisdiction) and this subchapter.
19 (c) Tribal custody determinations.--A child custody
20 determination made by a tribe under factual circumstances in
21 substantial conformity with the jurisdictional standards of this
22 chapter must be recognized and enforced under Subchapter C
23 (relating to enforcement).
24 § 5405. International application of chapter.
25 (a) Foreign country treated as state.--A court of this
26 Commonwealth shall treat a foreign country as if it were a state
27 of the United States for the purpose of applying Subchapter B
28 (relating to jurisdiction) and this subchapter.
29 (b) Foreign custody determinations.--Except as otherwise
30 provided in subsection (c), a child custody determination made
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1 in a foreign country under factual circumstances in substantial
2 conformity with the jurisdictional standards of this chapter
3 must be recognized and enforced under Subchapter C (relating to
4 enforcement).
5 (c) Violation of human rights.--A court of this Commonwealth
6 need not apply this chapter if the child custody law of a
7 foreign country violates fundamental principles of human rights.
8 § 5406. Effect of child custody determination.
9 A child custody determination made by a court of this
10 Commonwealth that had jurisdiction under this chapter binds all
11 persons who have been served in accordance with the laws of this
12 Commonwealth or notified in accordance with section 5408
13 (relating to notice to persons outside Commonwealth) or who have
14 submitted to the jurisdiction of the court and who have been
15 given an opportunity to be heard. As to those persons, the
16 determination is conclusive as to all decided issues of law and
17 fact except to the extent the determination is modified.
18 § 5407. Priority.
19 If a question of existence or exercise of jurisdiction under
20 this chapter is raised in a child custody proceeding, the
21 question, upon request of a party, must be given priority on the
22 calendar and handled expeditiously.
23 § 5408. Notice to persons outside Commonwealth.
24 (a) General rule.--Notice required for the exercise of
25 jurisdiction when a person is outside this Commonwealth may be
26 given in a manner prescribed by the laws of this Commonwealth
27 for service of process or by the law of the state in which the
28 service is made. Notice must be given in a manner reasonably
29 calculated to give actual notice but may be by publication if
30 other means are not effective.
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1 (b) Proof of service.--Proof of service may be made in the
2 manner prescribed by the laws of this Commonwealth or by the law
3 of the state in which the service is made.
4 (c) Submission to jurisdiction.--Notice is not required for
5 the exercise of jurisdiction with respect to a person who
6 submits to the jurisdiction of the court.
7 § 5409. Appearance and limited immunity.
8 (a) General rule.--A party to a child custody proceeding,
9 including a modification proceeding or a petitioner or
10 respondent in a proceeding to enforce or register a child
11 custody determination, is not subject to personal jurisdiction
12 in this Commonwealth for another proceeding or purpose solely by
13 reason of having participated or of having been physically
14 present for the purpose of participating in the proceeding.
15 (b) Service.--A person who is subject to personal
16 jurisdiction in this Commonwealth on a basis other than physical
17 presence is not immune from service of process in this
18 Commonwealth. A party present in this Commonwealth who is
19 subject to the jurisdiction of another state is not immune from
20 service of process allowable under the laws of that state.
21 (c) Acts committed while in this Commonwealth.--The immunity
22 granted by subsection (a) does not extend to civil litigation
23 based on acts unrelated to the participation in a proceeding
24 under this chapter committed by an individual while present in
25 this Commonwealth.
26 § 5410. Communication between courts.
27 (a) General rule.--A court of this Commonwealth may
28 communicate with a court in another state concerning a
29 proceeding arising under this chapter.
30 (b) Participation of parties.--The court may allow the
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1 parties to participate in the communication. If the parties are
2 not able to participate in the communication, they must be given
3 the opportunity to present facts and legal arguments before a
4 decision on jurisdiction is made.
5 (c) Matters of cooperation between courts.--Communication
6 between courts on schedules, calendars, court records and
7 similar matters may occur without informing the parties. A
8 record need not be made of the communication.
9 (d) Record.--Except as otherwise provided in subsection (c),
10 a record must be made of a communication under this section. The
11 parties must be informed promptly of the communication and
12 granted access to the record.
13 (e) Definition.--As used in this section, the term "record"
14 means information that is inscribed on a tangible medium or that
15 is stored in an electronic or other medium and is retrievable in
16 perceivable form.
17 § 5411. Taking testimony in another state.
18 (a) General rule.--In addition to other procedures available
19 to a party, a party to a child custody proceeding may offer
20 testimony of witnesses who are located in another state,
21 including testimony of the parties and the child, by deposition
22 or other means allowable in this Commonwealth for testimony
23 taken in another state. The court on its own motion may order
24 that the testimony of a person be taken in another state and may
25 prescribe the manner in which and the terms upon which the
26 testimony is taken.
27 (b) Means and location.--A court of this Commonwealth may
28 permit an individual residing in another state to be deposed or
29 to testify by telephone, audiovisual means or other electronic
30 means before a designated court or at another location in that
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1 state. A court of this Commonwealth shall cooperate with courts
2 of other states in designating an appropriate location for the
3 deposition or testimony.
4 (c) Transmission of documentary evidence.--Documentary
5 evidence transmitted from another state to a court of this
6 Commonwealth by technological means that do not produce an
7 original writing may not be excluded from evidence on an
8 objection based on the means of transmission.
9 § 5412. Cooperation between courts; preservation of records.
10 (a) Assistance of another state.--A court of this
11 Commonwealth may request the appropriate court of another state
12 to:
13 (1) hold an evidentiary hearing;
14 (2) order a person to produce or give evidence pursuant
15 to procedures of that state;
16 (3) order that an evaluation be made with respect to the
17 custody of a child involved in a pending proceeding;
18 (4) forward to the court of this Commonwealth a
19 certified copy of the transcript of the record of the
20 hearing, the evidence otherwise presented and any evaluation
21 prepared in compliance with the request; and
22 (5) order a party to a child custody proceeding or any
23 person having physical custody of the child to appear in the
24 proceeding with or without the child.
25 (b) Assistance to another state.--Upon request of a court of
26 another state, a court of this Commonwealth may hold a hearing,
27 enter an order or forward transcripts, evidence and evaluations
28 described in subsection (a).
29 (c) Expenses.--Travel and other necessary and reasonable
30 expenses incurred under subsections (a) and (b) may be assessed
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1 against the parties according to the laws of this Commonwealth.
2 (d) Preservation of records.--A court of this Commonwealth
3 shall preserve the pleadings, orders, decrees, records of
4 hearings, evaluations and other pertinent records with respect
5 to a child custody proceeding until the child attains 18 years
6 of age. Upon appropriate request by a court or law enforcement
7 official of another state, the court shall forward a certified
8 copy of those records.
9 SUBCHAPTER B
10 JURISDICTION
11 Sec.
12 5421. Initial child custody jurisdiction.
13 5422. Exclusive, continuing jurisdiction.
14 5423. Jurisdiction to modify determination.
15 5424. Temporary emergency jurisdiction.
16 5425. Notice; opportunity to be heard; joinder.
17 5426. Simultaneous proceedings.
18 5427. Inconvenient forum.
19 5428. Jurisdiction declined by reason of conduct.
20 5429. Information to be submitted to court.
21 5430. Appearance of parties and child.
22 § 5421. Initial child custody jurisdiction.
23 (a) General rule.--Except as otherwise provided in section
24 5424 (relating to temporary emergency jurisdiction), a court of
25 this Commonwealth has jurisdiction to make an initial child
26 custody determination only if:
27 (1) this Commonwealth is the home state of the child on
28 the date of the commencement of the proceeding, or was the
29 home state of the child within six months before the
30 commencement of the proceeding and the child is absent from
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1 this Commonwealth but a parent or person acting as a parent
2 continues to live in this Commonwealth;
3 (2) a court of another state does not have jurisdiction
4 under paragraph (1), or a court of the home state of the
5 child has declined to exercise jurisdiction on the ground
6 that this Commonwealth is the more appropriate forum under
7 section 5427 (relating to inconvenient forum) or 5428
8 (relating to jurisdiction declined by reason of conduct),
9 and:
10 (i) the child and the child's parents, or the child
11 and at least one parent or a person acting as a parent,
12 have a significant connection with this Commonwealth
13 other than mere physical presence; and
14 (ii) substantial evidence is available in this
15 Commonwealth concerning the child's care, protection,
16 training and personal relationships;
17 (3) all courts having jurisdiction under paragraph (1)
18 or (2) have declined to exercise jurisdiction on the ground
19 that a court of this Commonwealth is the more appropriate
20 forum to determine the custody of the child under section
21 5427 or 5428; or
22 (4) no court of any other state would have jurisdiction
23 under the criteria specified in paragraph (1), (2) or (3).
24 (b) Exclusive jurisdictional basis.--Subsection (a) is the
25 exclusive jurisdictional basis for making a child custody
26 determination by a court of this Commonwealth.
27 (c) Physical presence and personal jurisdiction
28 unnecessary.--Physical presence of or personal jurisdiction over
29 a party or a child is not necessary or sufficient to make a
30 child custody determination.
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1 § 5422. Exclusive, continuing jurisdiction.
2 (a) General rule.--Except as otherwise provided in section
3 5424 (relating to temporary emergency jurisdiction), a court of
4 this Commonwealth which has made a child custody determination
5 consistent with section 5421 (relating to initial child custody
6 jurisdiction) or section 5423 (relating to jurisdiction to
7 modify determination) has exclusive, continuing jurisdiction
8 over the determination until:
9 (1) a court of this Commonwealth determines that neither
10 the child, nor the child and one parent, nor the child and a
11 person acting as a parent have a significant connection with
12 this Commonwealth and that substantial evidence is no longer
13 available in this Commonwealth concerning the child's care,
14 protection, training and personal relationships; or
15 (2) a court of this Commonwealth or a court of another
16 state determines that the child, the child's parents and any
17 person acting as a parent do not presently reside in this
18 Commonwealth.
19 (b) Modification where court does not have exclusive,
20 continuing jurisdiction.--A court of this Commonwealth which has
21 made a child custody determination and does not have exclusive,
22 continuing jurisdiction under this section may modify that
23 determination only if it has jurisdiction to make an initial
24 determination under section 5421.
25 § 5423. Jurisdiction to modify determination.
26 Except as otherwise provided in section 5424 (relating to
27 temporary emergency jurisdiction), a court of this Commonwealth
28 may not modify a child custody determination made by a court of
29 another state unless a court of this Commonwealth has
30 jurisdiction to make an initial determination under section 5421
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1 (a)(1) or (2) (relating to initial child custody jurisdiction)
2 and:
3 (1) the court of the other state determines it no longer
4 has exclusive, continuing jurisdiction under section 5422
5 (relating to exclusive, continuing jurisdiction) or that a
6 court of this Commonwealth would be a more convenient forum
7 under section 5427 (relating to inconvenient forum); or
8 (2) a court of this Commonwealth or a court of the other
9 state determines that the child, the child's parents and any
10 person acting as a parent do not presently reside in the
11 other state.
12 § 5424. Temporary emergency jurisdiction.
13 (a) General rule.--A court of this Commonwealth has
14 temporary emergency jurisdiction if the child is present in this
15 Commonwealth and the child has been abandoned or it is necessary
16 in an emergency to protect the child because the child or a
17 sibling or parent of the child is subjected to or threatened
18 with mistreatment or abuse.
19 (b) No previous custody determination or proceeding.--If
20 there is no previous child custody determination that is
21 entitled to be enforced under this chapter and a child custody
22 proceeding has not been commenced in a court of a state having
23 jurisdiction under sections 5421 (relating to initial child
24 custody jurisdiction) through 5423 (relating to jurisdiction to
25 modify determination), a child custody determination made under
26 this section remains in effect until an order is obtained from a
27 court of a state having jurisdiction under sections 5421 through
28 5423. If a child custody proceeding has not been or is not
29 commenced in a court of a state having jurisdiction under
30 sections 5421 through 5423, a child custody determination made
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1 under this section becomes a final determination if it so
2 provides and this Commonwealth becomes the home state of the
3 child.
4 (c) Previous custody determination or proceeding.--If there
5 is a previous child custody determination that is entitled to be
6 enforced under this chapter or a child custody proceeding has
7 been commenced in a court of a state having jurisdiction under
8 sections 5421 through 5423, any order issued by a court of this
9 Commonwealth under this section must specify in the order a
10 period that the court considers adequate to allow the person
11 seeking an order to obtain an order from the state having
12 jurisdiction under sections 5421 through 5423. The order issued
13 in this Commonwealth remains in effect until an order is
14 obtained from the other state within the period specified or the
15 period expires.
16 (d) Mandatory communication between courts.--A court of this
17 Commonwealth which has been asked to make a child custody
18 determination under this section, upon being informed that a
19 child custody proceeding has been commenced in or a child
20 custody determination has been made by a court of a state having
21 jurisdiction under sections 5421 through 5423, shall immediately
22 communicate with the other court. A court of this Commonwealth
23 which is exercising jurisdiction pursuant to sections 5421
24 through 5423, upon being informed that a child custody
25 proceeding has been commenced in or a child custody
26 determination has been made by a court of another state under a
27 statute similar to this section, shall immediately communicate
28 with the court of that state to resolve the emergency, protect
29 the safety of the parties and the child and determine a period
30 for the duration of the temporary order.
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1 § 5425. Notice; opportunity to be heard; joinder.
2 (a) General rule.--Before a child custody determination is
3 made under this chapter, notice and an opportunity to be heard
4 in accordance with the standards of section 5408 (relating to
5 notice to persons outside Commonwealth) must be given to all
6 persons entitled to notice under the laws of this Commonwealth
7 as in child custody proceedings between residents of this
8 Commonwealth, any parent whose parental rights have not been
9 previously terminated and any person having physical custody of
10 the child.
11 (b) Lack of notice or opportunity to be heard.--This chapter
12 does not govern the enforceability of a child custody
13 determination made without notice or any opportunity to be
14 heard.
15 (c) Joinder and intervention.--The obligation to join a
16 party and the right to intervene as a party in a child custody
17 proceeding under this chapter are governed by the laws of this
18 Commonwealth as in child custody proceedings between residents
19 of this Commonwealth.
20 § 5426. Simultaneous proceedings.
21 (a) General rule.--Except as otherwise provided in section
22 5424 (relating to temporary emergency jurisdiction), a court of
23 this Commonwealth may not exercise its jurisdiction under this
24 subchapter if, at the time of the commencement of the
25 proceeding, a proceeding concerning the custody of the child has
26 been commenced in a court of another state having jurisdiction
27 substantially in conformity with this chapter, unless the
28 proceeding has been terminated or is stayed by the court of the
29 other state because a court of this Commonwealth is a more
30 convenient forum under section 5427 (relating to inconvenient
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1 forum).
2 (b) Stay; communication with other court.--Except as
3 otherwise provided in section 5424, a court of this
4 Commonwealth, before hearing a child custody proceeding, shall
5 examine the court documents and other information supplied by
6 the parties pursuant to section 5429 (relating to information to
7 be submitted to court). If the court determines that a child
8 custody proceeding has been commenced in a court in another
9 state having jurisdiction substantially in accordance with this
10 chapter, the court of this Commonwealth shall stay its
11 proceeding and communicate with the court of the other state. If
12 the court of the state having jurisdiction substantially in
13 accordance with this chapter does not determine that the court
14 of this Commonwealth is a more appropriate forum, the court of
15 this Commonwealth shall dismiss the proceeding.
16 (c) Modification.--In a proceeding to modify a child custody
17 determination, a court of this Commonwealth shall determine
18 whether a proceeding to enforce the determination has been
19 commenced in another state. If a proceeding to enforce a child
20 custody determination has been commenced in another state, the
21 court may:
22 (1) stay the proceeding for modification pending the
23 entry of an order of a court of the other state enforcing,
24 staying, denying or dismissing the proceeding for
25 enforcement;
26 (2) enjoin the parties from continuing with the
27 proceeding for enforcement; or
28 (3) proceed with the modification under conditions it
29 considers appropriate.
30 § 5427. Inconvenient forum.
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1 (a) General rule.--A court of this Commonwealth which has
2 jurisdiction under this chapter to make a child custody
3 determination may decline to exercise its jurisdiction at any
4 time if it determines that it is an inconvenient forum under the
5 circumstances and that a court of another state is a more
6 appropriate forum. The issue of inconvenient forum may be raised
7 upon motion of a party, the court's own motion or request of
8 another court.
9 (b) Factors.--Before determining whether it is an
10 inconvenient forum, a court of this Commonwealth shall consider
11 whether it is appropriate for a court of another state to
12 exercise jurisdiction. For this purpose, the court shall allow
13 the parties to submit information and shall consider all
14 relevant factors, including:
15 (1) whether domestic violence has occurred and is likely
16 to continue in the future and which state could best protect
17 the parties and the child;
18 (2) the length of time the child has resided outside
19 this Commonwealth;
20 (3) the distance between the court in this Commonwealth
21 and the court in the state that would assume jurisdiction;
22 (4) the relative financial circumstances of the parties;
23 (5) any agreement of the parties as to which state
24 should assume jurisdiction;
25 (6) the nature and location of the evidence required to
26 resolve the pending litigation, including testimony of the
27 child;
28 (7) the ability of the court of each state to decide the
29 issue expeditiously and the procedures necessary to present
30 the evidence; and
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1 (8) the familiarity of the court of each state with the
2 facts and issues in the pending litigation.
3 (c) Stay.--If a court of this Commonwealth determines that
4 it is an inconvenient forum and that a court of another state is
5 a more appropriate forum, it shall stay the proceedings upon
6 condition that a child custody proceeding be promptly commenced
7 in another designated state and may impose any other condition
8 the court considers just and proper.
9 (d) Jurisdiction declined.--A court of this Commonwealth may
10 decline to exercise its jurisdiction under this chapter if a
11 child custody determination is incidental to an action for
12 divorce or another proceeding while still retaining jurisdiction
13 over the divorce or other proceeding.
14 § 5428. Jurisdiction declined by reason of conduct.
15 (a) General rule.--Except as otherwise provided in section
16 5424 (relating to temporary emergency jurisdiction) or by other
17 laws of this Commonwealth, if a court of this Commonwealth has
18 jurisdiction under this chapter because a person seeking to
19 invoke its jurisdiction has engaged in unjustifiable conduct,
20 the court shall decline to exercise its jurisdiction unless:
21 (1) the parents and all persons acting as parents have
22 acquiesced in the exercise of jurisdiction;
23 (2) a court of the state otherwise having jurisdiction
24 under sections 5421 (relating to initial child custody
25 jurisdiction) through 5423 (relating to jurisdiction to
26 modify determination) determines that this Commonwealth is a
27 more appropriate forum under section 5427 (relating to
28 inconvenient forum); or
29 (3) no court of any other state would have jurisdiction
30 under the criteria specified in sections 5421 through 5423.
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1 (b) Jurisdiction declined; remedy.--If a court of this
2 Commonwealth declines to exercise its jurisdiction pursuant to
3 subsection (a), it may fashion an appropriate remedy to ensure
4 the safety of the child and prevent a repetition of the
5 unjustifiable conduct, including staying the proceeding until a
6 child custody proceeding is commenced in a court having
7 jurisdiction under sections 5421 through 5423.
8 (c) Jurisdiction declined, expenses.--If a court dismisses a
9 petition or stays a proceeding because it declines to exercise
10 its jurisdiction pursuant to subsection (a), it shall assess
11 against the party seeking to invoke its jurisdiction necessary
12 and reasonable expenses, including costs, communication
13 expenses, attorney fees, investigative fees, expenses for
14 witnesses, travel expenses and child care during the course of
15 the proceedings unless the party from whom fees are sought
16 establishes that the assessment would be clearly inappropriate.
17 The court may not assess fees, costs or expenses against this
18 Commonwealth unless authorized by law other than this chapter.
19 § 5429. Information to be submitted to court.
20 (a) General rule.--Subject to the rules set forth in Chapter
21 53 (relating to child custody) providing for the confidentiality
22 of procedures, addresses and other identifying information in a
23 child custody proceeding, each party in its first pleading or in
24 an attached affidavit shall give information, if reasonably
25 ascertainable, under oath as to the child's present address or
26 whereabouts, the places where the child has lived during the
27 last five years and the names and present addresses of the
28 persons with whom the child has lived during that period. The
29 pleading or affidavit must state whether the party:
30 (1) has participated as a party or witness or in any
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1 other capacity in any other proceeding concerning the custody
2 of or visitation with the child and, if so, identify the
3 court, the case number and the date of the child custody
4 determination, if any;
5 (2) knows of any proceeding that could affect the
6 current proceeding, including proceedings for enforcement and
7 proceedings relating to domestic violence, protective orders,
8 termination of parental rights and adoptions, and, if so,
9 identify the court, the case number and the nature of the
10 proceeding; and
11 (3) knows the names and addresses of any person not a
12 party to the proceeding who has physical custody of the child
13 or claims rights of legal custody or physical custody of or
14 visitation with the child and, if so, the names and addresses
15 of those persons.
16 (b) Stay.--If the information required by subsection (a) is
17 not furnished, the court, upon motion of a party or its own
18 motion, may stay the proceeding until the information is
19 furnished.
20 (c) Additional information.--If the declaration as to any of
21 the items described in subsection (a)(1) through (3) is in the
22 affirmative, the declarant shall give additional information
23 under oath as required by the court. The court may examine the
24 parties under oath as to details of the information furnished
25 and other matters pertinent to the court's jurisdiction and the
26 disposition of the case.
27 (d) Duty to disclose other proceedings.--Each party has a
28 continuing duty to inform the court of any proceeding in this
29 Commonwealth or any other state that could affect the current
30 proceeding.
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1 (e) Identifying information.--If a party alleges in an
2 affidavit or a pleading under oath that the health, safety or
3 liberty of a party or child would be jeopardized by disclosure
4 of identifying information, the information must be sealed and
5 may not be disclosed to the other party or the public unless the
6 court orders the disclosure to be made after a hearing in which
7 the court takes into consideration the health, safety or liberty
8 of the party or child and determines that the disclosure is in
9 the interest of justice.
10 § 5430. Appearance of parties and child.
11 (a) General rule.--In a child custody proceeding in this
12 Commonwealth, the court may order a party to the proceeding who
13 is in this Commonwealth to appear before the court in person
14 with or without the child. The court may order any person who is
15 in this Commonwealth and who has physical custody or control of
16 the child to appear in person with the child.
17 (b) Party outside this Commonwealth.--If a party to a child
18 custody proceeding whose presence is desired by the court is
19 outside this Commonwealth, the court may order that a notice
20 given pursuant to section 5408 (relating to notice to persons
21 outside Commonwealth) include a statement directing the party to
22 appear in person with or without the child and informing the
23 party that failure to appear may result in a decision adverse to
24 the party.
25 (c) Personal safety.--The court may enter any orders
26 necessary to ensure the safety of the child and of any person
27 ordered to appear under this section.
28 (d) Expenses.--If a party to a child custody proceeding who
29 is outside this Commonwealth is directed to appear under
30 subsection (b) or desires to appear personally before the court
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1 with or without the child, the court may require another party
2 to pay reasonable and necessary travel and other expenses of the
3 party so appearing and of the child.
4 SUBCHAPTER C
5 ENFORCEMENT
6 Sec.
7 5441. Definitions.
8 5442. Enforcement under Hague Convention.
9 5443. Duty to enforce.
10 5444. Temporary visitation.
11 5445. Registration of child custody determination.
12 5446. Enforcement of registered determination.
13 5447. Simultaneous proceedings.
14 5448. Expedited enforcement of child custody determination.
15 5449. Service of petition and order.
16 5450. Hearing and order.
17 5451. Warrant to take physical custody of child.
18 5452. Costs, fees and expenses.
19 5453. Recognition and enforcement.
20 5454. Appeals.
21 5455. Role of prosecutor or public official.
22 5456. Role of law enforcement.
23 5457. Costs and expenses.
24 § 5441. Definitions.
25 The following words and phrases when used in this subchapter
26 shall have the meanings given to them in this section unless the
27 context clearly indicates otherwise:
28 "Petitioner." A person who seeks enforcement of an order for
29 return of a child under the Hague Convention on the Civil
30 Aspects of International Child Abduction or enforcement of a
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1 child custody determination.
2 "Respondent." A person against whom a proceeding has been
3 commenced for enforcement of an order for return of a child
4 under the Hague Convention on the Civil Aspects of International
5 Child Abduction or enforcement of a child custody determination.
6 § 5442. Enforcement under Hague Convention.
7 Under this subchapter a court of this Commonwealth may
8 enforce an order for the return of the child made under the
9 Hague Convention on the Civil Aspects of International Child
10 Abduction as if it were a child custody determination.
11 § 5443. Duty to enforce.
12 (a) General rule.--A court of this Commonwealth shall
13 recognize and enforce a child custody determination of a court
14 of another state if the latter court exercised jurisdiction in
15 substantial conformity with this chapter or the determination
16 was made under factual circumstances meeting the jurisdictional
17 standards of this chapter and the determination has not been
18 modified in accordance with this chapter.
19 (b) Remedies.--A court of this Commonwealth may utilize any
20 remedy available under other laws of this Commonwealth to
21 enforce a child custody determination made by a court of another
22 state. The remedies provided in this subchapter are cumulative
23 and do not affect the availability of other remedies to enforce
24 a child custody determination.
25 § 5444. Temporary visitation.
26 (a) General rule.--A court of this Commonwealth which does
27 not have jurisdiction to modify a child custody determination
28 may issue a temporary order enforcing:
29 (1) a visitation schedule made by a court of another
30 state; or
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1 (2) the visitation provisions of a child custody
2 determination of another state that does not provide for a
3 specific visitation schedule.
4 (b) Time to obtain permanent change in visitation.--If a
5 court of this Commonwealth makes an order under subsection
6 (a)(2), it shall specify in the order a period that it considers
7 adequate to allow the petitioner to obtain an order from a court
8 having jurisdiction under the criteria specified in Subchapter B
9 (relating to jurisdiction). The order remains in effect until an
10 order is obtained from the other court or the period expires.
11 § 5445. Registration of child custody determination.
12 (a) General rule.--A child custody determination issued by a
13 court of another state may be registered in this Commonwealth,
14 with or without a simultaneous request for enforcement, by
15 sending to the appropriate court in this Commonwealth:
16 (1) a letter or other document requesting registration;
17 (2) two copies, including one certified copy, of the
18 determination sought to be registered and a statement under
19 penalty of perjury that to the best of the knowledge and
20 belief of the person seeking registration the order has not
21 been modified; and
22 (3) except as otherwise provided in section 5429
23 (relating to information to be submitted to court), the name
24 and address of the person seeking registration and any parent
25 or person acting as a parent who has been awarded custody or
26 visitation in the child custody determination sought to be
27 registered.
28 (b) Duties of registering court.--On receipt of the
29 documents required by subsection (a), the registering court
30 shall:
20030H2083B2773 - 24 -
1 (1) cause the determination to be filed as a foreign
2 judgment, together with one copy of any accompanying
3 documents and information, regardless of their form; and
4 (2) serve notice upon the persons named pursuant to
5 subsection (a)(3) and provide them with an opportunity to
6 contest the registration in accordance with this section.
7 (c) Notice.--The notice required by subsection (b)(2) must
8 state that:
9 (1) a registered determination is enforceable as of the
10 date of the registration in the same manner as a
11 determination issued by a court of this Commonwealth;
12 (2) a hearing to contest the validity of the registered
13 determination must be requested within 20 days after service
14 of notice; and
15 (3) failure to contest the registration will result in
16 confirmation of the child custody determination and preclude
17 further contest of that determination with respect to any
18 matter that could have been asserted.
19 (d) Contest over validity of registered order.--A person
20 seeking to contest the validity of a registered order must
21 request a hearing within 20 days after service of the notice. At
22 that hearing, the court shall confirm the registered order
23 unless the person contesting registration establishes that:
24 (1) the issuing court did not have jurisdiction under
25 Subchapter B (relating to jurisdiction);
26 (2) the child custody determination sought to be
27 registered has been vacated, stayed or modified by a court
28 having jurisdiction to do so under Subchapter B; or
29 (3) the person contesting registration was entitled to
30 notice, but notice was not given in accordance with the
20030H2083B2773 - 25 -
1 standards of section 5408 (relating to notice to persons
2 outside Commonwealth), in the proceedings before the court
3 that issued the order for which registration is sought.
4 (e) Failure to contest.--If a timely request for a hearing
5 to contest the validity of the registration is not made, the
6 registration is confirmed as a matter of law and the person
7 requesting registration and all persons served must be notified
8 of the confirmation.
9 (f) Res judicata.--Confirmation of a registered order,
10 whether by operation of law or after notice and hearing,
11 precludes further contest of the order with respect to any
12 matter that could have been asserted at the time of
13 registration.
14 § 5446. Enforcement of registered determination.
15 (a) General rule.--A court of this Commonwealth may grant
16 any relief normally available under the laws of this
17 Commonwealth to enforce a registered child custody determination
18 made by a court of another state.
19 (b) Modification.--A court of this Commonwealth shall
20 recognize and enforce, but may not modify, except in accordance
21 with Subchapter B (relating to jurisdiction), a registered child
22 custody determination of a court of another state.
23 § 5447. Simultaneous proceedings.
24 If a proceeding for enforcement under this subchapter is
25 commenced in a court of this Commonwealth and the court
26 determines that a proceeding to modify the determination is
27 pending in a court of another state having jurisdiction to
28 modify the determination under Subchapter B (relating to
29 jurisdiction), the enforcing court shall immediately communicate
30 with the modifying court. The proceeding for enforcement
20030H2083B2773 - 26 -
1 continues unless the enforcing court, after consultation with
2 the modifying court, stays or dismisses the proceeding.
3 § 5448. Expedited enforcement of child custody determination.
4 (a) Verification.--A petition under this subchapter must be
5 verified. Certified copies of all orders sought to be enforced
6 and of any order confirming registration must be attached to the
7 petition. A copy of a certified copy of an order may be attached
8 instead of the original.
9 (b) Petition.--A petition for enforcement of a child custody
10 determination must state:
11 (1) whether the court that issued the determination
12 identified the jurisdictional basis it relied upon in
13 exercising jurisdiction and, if so, what the basis was;
14 (2) whether the determination for which enforcement is
15 sought has been vacated, stayed or modified by a court whose
16 decision must be enforced under this chapter and, if so,
17 identify the court, the case number and the nature of the
18 proceeding;
19 (3) whether any proceeding has been commenced that could
20 affect the current proceeding, including proceedings relating
21 to domestic violence, protective orders, termination of
22 parental rights and adoptions and, if so, identify the court,
23 the case number and the nature of the proceeding;
24 (4) the present physical address of the child and the
25 respondent, if known;
26 (5) whether relief in addition to the immediate physical
27 custody of the child and attorney fees is sought, including a
28 request for assistance from law enforcement officials and, if
29 so, the relief sought; and
30 (6) if the child custody determination has been
20030H2083B2773 - 27 -
1 registered and confirmed under section 5445 (relating to
2 registration of child custody determination), the date and
3 place of registration.
4 (c) Hearing.--Upon the filing of a petition, the court shall
5 issue an order directing the respondent to appear in person with
6 or without the child at a hearing and may enter any order
7 necessary to ensure the safety of the parties and the child. The
8 hearing must be held on the next judicial day after service of
9 the order unless that date is impossible. In that event, the
10 court shall hold the hearing on the first judicial day possible.
11 The court may extend the date of hearing at the request of the
12 petitioner.
13 (d) Contest over validity of custody determination.--An
14 order issued under subsection (c) must state the time and place
15 of the hearing and advise the respondent that at the hearing the
16 court will order that the petitioner may take immediate physical
17 custody of the child and the payment of fees, costs and expenses
18 under section 5452 (relating to costs, fees and expenses) and
19 may schedule a hearing to determine whether further relief is
20 appropriate unless the respondent appears and establishes that:
21 (1) the child custody determination has not been
22 registered and confirmed under section 5445 and that:
23 (i) the issuing court did not have jurisdiction
24 under Subchapter B (relating to jurisdiction);
25 (ii) the child custody determination for which
26 enforcement is sought has been vacated, stayed or
27 modified by a court having jurisdiction to do so under
28 Subchapter B; or
29 (iii) the respondent was entitled to notice, but
30 notice was not given in accordance with the standards of
20030H2083B2773 - 28 -
1 section 5408 (relating to notice to persons outside
2 Commonwealth), in the proceedings before the court that
3 issued the order for which enforcement is sought; or
4 (2) the child custody determination for which
5 enforcement is sought was registered and confirmed under
6 section 5444 (relating to temporary visitation), but has been
7 vacated, stayed or modified by a court of a state having
8 jurisdiction to do so under Subchapter B.
9 § 5449. Service of petition and order.
10 Except as otherwise provided in section 5451 (relating to
11 warrant to take physical custody of child), the petition and
12 order must be served by any method authorized by the laws of
13 this Commonwealth upon respondent and any person who has
14 physical custody of the child.
15 § 5450. Hearing and order.
16 (a) General rule.--Unless the court issues a temporary
17 emergency order pursuant to section 5424 (relating to temporary
18 emergency jurisdiction), upon a finding that a petitioner is
19 entitled to immediate physical custody of the child, the court
20 shall order that the petitioner may take immediate physical
21 custody of the child unless the respondent establishes that:
22 (1) the child custody determination has not been
23 registered and confirmed under section 5445 (relating to
24 registration of child custody determination) and that:
25 (i) the issuing court did not have jurisdiction
26 under Subchapter B (relating to jurisdiction);
27 (ii) the child custody determination for which
28 enforcement is sought has been vacated, stayed or
29 modified by a court of a state having jurisdiction to do
30 so under Subchapter B; or
20030H2083B2773 - 29 -
1 (iii) the respondent was entitled to notice, but
2 notice was not given in accordance with the standards of
3 section 5408 (relating to notice to persons outside
4 Commonwealth), in the proceedings before the court that
5 issued the order for which enforcement is sought; or
6 (2) the child custody determination for which
7 enforcement is sought was registered and confirmed under
8 section 5445 but has been vacated, stayed or modified by a
9 court of a state having jurisdiction to do so under
10 Subchapter B.
11 (b) Costs, fees and expenses.--The court shall award the
12 costs, fees and expenses authorized under section 5452 (relating
13 to costs, fees and expenses) and may grant additional relief,
14 including a request for the assistance of law enforcement
15 officials, and set a further hearing to determine whether
16 additional relief is appropriate.
17 (c) Refusal to testify.--If a party called to testify
18 refuses to answer on the ground that the testimony may be self-
19 incriminating, the court may draw an adverse inference from the
20 refusal.
21 (d) Spousal privilege unavailable.--A privilege against
22 disclosure of communications between spouses and a defense of
23 immunity based on the relationship of husband and wife or parent
24 and child may not be invoked in a proceeding under this
25 subchapter.
26 § 5451. Warrant to take physical custody of child.
27 (a) General rule.--Upon the filing of a petition seeking
28 enforcement of a child custody determination, the petitioner may
29 file a verified application for the issuance of a warrant to
30 take physical custody of the child if the child is immediately
20030H2083B2773 - 30 -
1 likely to suffer serious physical harm or be removed from this
2 Commonwealth.
3 (b) Petition.--If the court, upon the testimony of the
4 petitioner or other witness, finds that the child is imminently
5 likely to suffer serious physical harm or be removed from this
6 Commonwealth, it may issue a warrant to take physical custody of
7 the child. The petition must be heard on the next judicial day
8 after the warrant is executed unless that date is impossible. In
9 that event, the court shall hold the hearing on the first
10 judicial day possible. The application for the warrant must
11 include the statements required by section 5448(b) (relating to
12 expedited enforcement of child custody determination).
13 (c) Warrant.--A warrant to take physical custody of a child
14 must:
15 (1) recite the facts upon which a conclusion of imminent
16 serious physical harm or removal from the jurisdiction is
17 based;
18 (2) direct law enforcement officers to take physical
19 custody of the child immediately; and
20 (3) provide for the placement of the child pending final
21 relief.
22 (d) Time of service.--The respondent must be served with the
23 petition, warrant and order immediately after the child is taken
24 into physical custody.
25 (e) Enforcement.--A warrant to take physical custody of a
26 child is enforceable throughout this Commonwealth. If the court
27 finds on the basis of the testimony of the petitioner or other
28 witness that a less intrusive remedy is not effective, it may
29 authorize law enforcement officers to enter private property to
30 take physical custody of the child. If required by exigent
20030H2083B2773 - 31 -
1 circumstances of the case, the court may authorize law
2 enforcement officers to make a forcible entry at any hour.
3 (f) Appearance of child.--The court may impose conditions
4 upon placement of a child to ensure the appearance of the child
5 and the child's custodian.
6 § 5452. Costs, fees and expenses.
7 (a) General rule.--The court shall award the prevailing
8 party, including a state, necessary and reasonable expenses
9 incurred by or on behalf of the party, including costs,
10 communication expenses, attorney fees, investigative fees,
11 expenses for witnesses, travel expenses and child care during
12 the course of the proceedings, unless the party from whom fees
13 or expenses are sought establishes that the award would be
14 clearly inappropriate.
15 (b) Assessment against a state.--The court may not assess
16 fees, costs or expenses against a state unless authorized by law
17 other than this chapter.
18 § 5453. Recognition and enforcement.
19 A court of this Commonwealth shall accord full faith and
20 credit to an order issued by another state and consistent with
21 this chapter which enforces a child custody determination by a
22 court of another state unless the order has been vacated, stayed
23 or modified by a court having jurisdiction to do so under
24 Subchapter B (relating to jurisdiction).
25 § 5454. Appeals.
26 An appeal may be taken from a final order in a proceeding
27 under this subchapter in accordance with expedited appellate
28 procedures in other civil cases. Unless the court enters a
29 temporary emergency order under section 5424 (relating to
30 temporary emergency jurisdiction), the enforcing court may not
20030H2083B2773 - 32 -
1 stay an order enforcing a child custody determination pending
2 appeal.
3 § 5455. Role of prosecutor or public official.
4 (a) General rule.--In a case arising under this chapter or
5 involving the Hague Convention on the Civil Aspects of
6 International Child Abduction, the prosecutor or other
7 appropriate public official may take any lawful action,
8 including resort to a proceeding under this subchapter or any
9 other available civil proceeding to locate a child, obtain the
10 return of a child or enforce a child custody determination if
11 there is:
12 (1) an existing child custody determination;
13 (2) a request to do so from a court in a pending child
14 custody proceeding;
15 (3) a reasonable belief that a criminal statute has been
16 violated; or
17 (4) a reasonable belief that the child has been
18 wrongfully removed or retained in violation of the Hague
19 Convention on the Civil Aspects of International Child
20 Abduction.
21 (b) Authority.--A prosecutor or appropriate public official
22 acting under this section acts on behalf of the court and may
23 not represent any party.
24 § 5456. Role of law enforcement.
25 At the request of a prosecutor or other appropriate public
26 official acting under section 5455 (relating to role of
27 prosecutor or public official), a law enforcement officer may
28 take any lawful action reasonably necessary to locate a child or
29 a party and assist a prosecutor or appropriate public official
30 with responsibilities under section 5455.
20030H2083B2773 - 33 -
1 § 5457. Costs and expenses.
2 If the respondent is not the prevailing party, the court may
3 assess against the respondent all direct expenses and costs
4 incurred by the prosecutor or other appropriate public official
5 and law enforcement officers under section 5455 (relating to
6 role of prosecutor or public official) or 5456 (relating to role
7 of law enforcement).
8 SUBCHAPTER D
9 INTRASTATE APPLICATION
10 Sec.
11 5471. Intrastate application.
12 § 5471. Intrastate application.
13 The provisions of this chapter allocating jurisdiction and
14 functions between and among courts of different states shall
15 also allocate jurisdiction and functions between and among the
16 courts of common pleas of this Commonwealth.
17 SUBCHAPTER E
18 MISCELLANEOUS PROVISIONS
19 Sec.
20 5481. Application and construction.
21 5482. Severability.
22 § 5481. Application and construction.
23 In applying and construing this chapter, consideration must
24 be given to the need to promote uniformity of the law with
25 respect to its subject matter among states that enact it.
26 § 5482. Severability.
27 If any provision of this chapter or its application to any
28 person or circumstance is held invalid, the invalidity does not
29 affect other provisions or applications of this chapter which
30 can be given effect without the invalid provision or
20030H2083B2773 - 34 -
1 application, and to this end the provisions of this chapter are
2 severable.
3 Section 4. Section 5612(c) and (f) of Title 23 are amended
4 to read:
5 § 5612. Petition for approval of a designation.
6 * * *
7 (c) Jurisdiction.--For purposes of determining jurisdiction
8 under this chapter, the provisions of [Subchapter B of Chapter
9 53 (relating to child custody jurisdiction)] Chapter 54
10 (relating to uniform child custody jurisdiction and enforcement)
11 shall apply.
12 * * *
13 (f) Hearing.--In the event a hearing is required, it shall
14 be conducted in accordance with the proceedings set forth in
15 [Chapter] Chapters 53 (relating to custody) and 54.
16 * * *
17 Section 5. A proceeding under 23 Pa.C.S. Ch. 53 which was
18 commenced before the effective date of this act is governed by
19 the law in effect at the time the proceeding was initiated.
20 Section 6. This act shall take effect in 60 days.
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