PRINTER'S NO. 169
No. 175 Session of 1999
INTRODUCED BY GERLACH, GREENLEAF, MOWERY, TARTAGLIONE, SCHWARTZ,
STOUT AND KASUNIC, JANUARY 20, 1999
REFERRED TO JUDICIARY, JANUARY 20, 1999
AN ACT
1 Amending Title 23 (Domestic Relations) of the Pennsylvania
2 Consolidated Statutes, further providing for the definition
3 of "shared custody"; adding definitions; and further
4 providing for custody of children.
5 The General Assembly of the Commonwealth of Pennsylvania
6 hereby enacts as follows:
7 Section 1. The definition of "shared custody" in section
8 5302 of Title 23 of the Pennsylvania Consolidated Statutes is
9 amended and the section is amended by adding definitions to
10 read:
11 § 5302. Definitions.
12 The following words and phrases when used in this subchapter
13 shall have the meanings given to them in this section unless the
14 context clearly indicates otherwise:
15 * * *
16 "Joint custody." Joint legal and physical custody. An award
17 of joint legal and physical custody obligates the parties to
18 exchange information concerning the health, education and
1 welfare of the minor child, and unless allocated, apportioned or
2 decreed, the parents or parties shall confer with one another in
3 the exercise of decision-making rights, responsibilities and
4 authority.
5 "Joint legal custody." The state in which the parents or
6 parties share, have voluntarily allocated or the court has
7 decreed between them the decision-making rights,
8 responsibilities and authority relating to the health, education
9 and welfare of a child.
10 "Joint physical custody." The state in which the court has
11 entered an order awarding each of the parents significant
12 periods of time in which a child resides with or is under the
13 care and supervision of each of the parents or parties. Joint
14 physical custody shall be shared by the parents in such a way as
15 to assure a child of frequent and continuing contact with both
16 parents.
17 * * *
18 ["Shared custody." An order awarding shared legal or shared
19 physical custody, or both, of a child in such a way as to assure
20 the child of frequent and continuing contact with and physical
21 access to both parents.]
22 * * *
23 Section 2. Section 5303 of Title 23 is amended to read:
24 § 5303. Award of custody, partial custody or visitation.
25 (a) General rule.--An order for joint custody shall be
26 awarded by the court unless the court finds that joint custody
27 is not in the best interest of the child. There shall be a
28 rebuttable presumption that an award of joint custody is in the
29 best interest of the child. The court shall state on the record
30 the reason for any award other than an award of joint custody.
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1 (a.1) Factors for court's consideration.--
2 [(1)] In making an order for custody or partial custody,
3 the court shall consider the following factors:
4 (1) the preference of the child as well as any other
5 factor which legitimately impacts the child's physical,
6 intellectual and emotional well-being[.];
7 (2) [In making an order for custody, partial custody or
8 visitation to either parent, the court shall consider, among
9 other factors,] which parent is more likely to encourage,
10 permit and allow frequent and continuing contact and physical
11 access between the noncustodial parent and the child[.] as
12 evidenced in parenting plan proposals;
13 (3) [The court shall consider] each parent and adult
14 household member's present and past violent or abusive
15 conduct which may include, but is not limited to, abusive
16 conduct as defined under the act of October 7, 1976
17 (P.L.1090, No.218), known as the Protection From Abuse
18 Act[.];
19 (4) the likelihood of the parents to cooperate on child-
20 care matters and to make parenting decisions jointly;
21 (5) the ability of the parents to encourage the sharing
22 of love, affection and contact between the child and the
23 other parent;
24 (6) the ability and intent of each parent to facilitate
25 joint custody access as well as to arrange geographic
26 convenience or readily available transportation as this
27 relates to practical considerations of physical parenting;
28 and
29 (7) the recommendation of the representative of the
30 child, if the child has a representative.
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1 (b) Consideration of criminal conviction.--If a parent has
2 been convicted of or has pleaded guilty or no contest to an
3 offense as set forth below, the court shall consider such
4 criminal conduct and shall determine that the parent does not
5 pose a threat of harm to the child before making an order of
6 custody, partial custody or visitation to that parent:
7 (1) 18 Pa.C.S. Ch. 25 (relating to criminal homicide);
8 (2) 18 Pa.C.S. § 2901 (relating to kidnapping);
9 (3) 18 Pa.C.S. § 2902 (relating to unlawful restraint);
10 (4) 18 Pa.C.S. § 3121 (relating to rape);
11 (5) 18 Pa.C.S. § 3122.1 (relating to statutory sexual
12 assault);
13 (6) 18 Pa.C.S. § 3123 (relating to involuntary deviate
14 sexual intercourse);
15 (7) 18 Pa.C.S. § 3124.1 (relating to sexual assault);
16 (8) 18 Pa.C.S. § 3125 (relating to aggravated indecent
17 assault);
18 (9) 18 Pa.C.S. § 3126 (relating to indecent assault);
19 (10) 18 Pa.C.S. § 3127 (relating to indecent exposure);
20 (11) 18 Pa.C.S. § 4302 (relating to incest);
21 (12) 18 Pa.C.S. § 4304 (relating to endangering welfare
22 of children);
23 (13) 18 Pa.C.S. § 5902(b) (relating to prostitution and
24 related offenses); or
25 (14) 18 Pa.C.S. § 6312 (relating to sexual abuse of
26 children).
27 (b.1) Consideration of criminal charge.--
28 (1) A parent who has obtained information under 42
29 Pa.C.S. § 1904 (relating to availability of criminal charge
30 information in child custody proceedings) of the charge filed
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1 against the other parent for an offense listed in paragraph
2 (2) may move for a temporary custody order or to modify an
3 existing custody, partial custody or visitation order. The
4 temporary custody or modification hearing shall be scheduled
5 expeditiously.
6 (2) In evaluating any request for temporary custody or
7 modification of a custody, partial custody or visitation
8 order, the court shall consider whether the parent who is or
9 has been charged with an offense listed below poses a risk of
10 harm to the child:
11 (i) 18 Pa.C.S. Ch. 25;
12 (ii) 18 Pa.C.S. § 2702 (relating to aggravated
13 assault);
14 (iii) 18 Pa.C.S. § 2706 (relating to terroristic
15 threats);
16 (iv) 18 Pa.C.S. § 2709(b) (relating to harassment
17 and stalking);
18 (v) 18 Pa.C.S. § 2901;
19 (vi) 18 Pa.C.S. § 2902;
20 (vii) 18 Pa.C.S. § 2903 (relating to false
21 imprisonment);
22 (viii) 18 Pa.C.S. § 3121;
23 (ix) 18 Pa.C.S. § 3122.1;
24 (x) 18 Pa.C.S. § 3123;
25 (xi) 18 Pa.C.S. § 3124.1;
26 (xii) 18 Pa.C.S. § 3125;
27 (xiii) 18 Pa.C.S. § 3126;
28 (xiv) 18 Pa.C.S. § 3127;
29 (xv) 18 Pa.C.S. § 3301 (relating to arson and
30 related offenses);
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1 (xvi) 18 Pa.C.S. § 4302;
2 (xvii) 18 Pa.C.S. § 4304;
3 (xviii) 18 Pa.C.S. § 6312; and
4 (xix) 23 Pa.C.S. § 6114 (relating to contempt for
5 violation of order or agreement).
6 (3) Failure to apply for information under 42 Pa.C.S. §
7 1904 or to act under this subsection shall not prejudice any
8 parent in a custody or visitation proceeding.
9 (b.2) Parent convicted of murder.--No court shall award
10 custody, partial custody or visitation to a parent who has been
11 convicted of murder under 18 Pa.C.S. § 2502(a) (relating to
12 murder of the first degree) of the other parent of the child who
13 is the subject of the order, unless the child is of suitable age
14 and consents to the order.
15 (c) Counseling.--In making a determination to award custody,
16 partial custody or visitation pursuant to subsection (b), the
17 court shall appoint a qualified professional to provide
18 counseling to an offending parent described in subsection (b)
19 and shall take testimony from that professional regarding the
20 provision of such counseling prior to issuing any order of
21 custody, partial custody or visitation. Counseling, required in
22 accordance with this subsection, shall include a program of
23 treatment or individual therapy designed to rehabilitate a
24 parent which addresses, but is not limited to, issues regarding
25 physical and sexual abuse, domestic violence, the psychology of
26 the offender and the effects of abuse on the victim. If the
27 court awards custody, partial custody or visitation to an
28 offending parent described in subsection (b), the court may
29 require subsequent periodic counseling and reports on the
30 rehabilitation of the offending parent and the well-being of the
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1 child following an order relating to custody, partial custody or
2 visitation. If, upon review of a subsequent report or reports,
3 the court determines that the offending parent poses a threat of
4 harm to the child, the court may schedule a hearing and modify
5 the order of custody or visitation to protect the well-being of
6 the child.
7 (d) Sole custody.--The court shall award sole custody when
8 it finds, after due consideration of the factors set forth in
9 subsection (a.1), that sole custody is in the best interest of
10 the child.
11 Section 3. Section 5304 of Title 23 is repealed.
12 Section 4. Title 23 is amended by adding a section to read:
13 § 5304.1. Relationship of joint custody to child support.
14 An award of joint custody shall not by itself diminish nor
15 increase the responsibility of each parent to provide for the
16 financial support of the child. Joint custody shall not be
17 decreed exclusively for the purpose of affecting child support,
18 and joint custody by itself shall not constitute sufficient
19 grounds for modification of a support order.
20 Section 5. Sections 5305(a), 5306, 5309 and 5310 of Title 23
21 are amended to read:
22 § 5305. Counseling.
23 (a) General rule.--The court [may] shall require the parents
24 to attend counseling sessions except where the parents have
25 agreed to a custody award, in which case counseling is at the
26 court's discretion, and [may] shall, where the court has ordered
27 counseling, consider the recommendations of the counselors prior
28 to awarding sole or [shared] joint custody. These counseling
29 sessions may include, but shall not be limited to, discussions
30 of the responsibilities and decisionmaking arrangements involved
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1 in both sole and [shared] joint custody and the suitability of
2 each arrangement to the capabilities of each parent or both
3 parents.
4 * * *
5 § 5306. Plan for implementation of custody order.
6 (a) Mandatory plan.--In awarding joint custody, the court
7 shall require the parents to submit a parenting plan. The court
8 may order mediation where appropriate to assist the parents in
9 producing an individual or a joint parenting plan. In the event
10 the parents fail to submit an agreed-to parenting plan, the
11 court shall produce the plan after consultation with the
12 mediator. The court shall give consideration to any individual
13 parenting plan produced by either or both parents. The parenting
14 plan shall include provisions covering matters relevant to the
15 care and custody of the child, including, but not limited to:
16 (1) the child's education and religious training;
17 (2) the child's health care;
18 (3) the child's personal care and control, including
19 parenting time, holidays, vacations and child care;
20 (4) transportation arrangements;
21 (5) a procedure by which proposed changes, disputes and
22 alleged breaches of the parenting plan may be mediated,
23 arbitrated, adjudicated or otherwise resolved; and
24 (6) any other factors the court deems to be in the best
25 interest of the child.
26 (b) Enforcement of order.--In making an order of joint
27 custody, the court shall specify the right of each parent to the
28 physical control of the child in sufficient detail to enable a
29 parent deprived of that control to enforce the court order and
30 to enable law enforcement authorities to implement laws for
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1 relief of parental kidnapping.
2 (c) Receipt of public welfare.--One parent may be designated
3 as a public welfare recipient in situations where public welfare
4 aid is deemed necessary and appropriate.
5 (d) Discretionary.--The court, in its discretion, may
6 require the parents to submit to the court a plan for the
7 implementation of any other type of custody [order made] ordered
8 under this subchapter. Upon the request of either parent or the
9 court, the domestic relations section of the court or other
10 party or agency approved by the court shall assist in the
11 formulation and implementation of the plan.
12 § 5309. Access to records and information.
13 (a) General rule.--Except as provided in subsections (b) and
14 (c), each parent shall be provided access to all the medical,
15 dental, religious or school records of the child, the residence
16 address of the child and of the other parent and any other
17 information that the [court deems necessary] other parent has or
18 has access to.
19 (b) Court determination not to release information.--The
20 court, in its discretion, may determine not to release any part
21 or parts of the information in this section but in doing so must
22 state its reason for denial on the record.
23 (c) Nondisclosure of confidential information.--The court
24 shall not order that the address of a shelter for battered
25 spouses and their dependent children or otherwise confidential
26 information of a domestic violence counselor be disclosed to the
27 defendant or his counsel or any party to the proceedings.
28 (d) Equal access to records by both parents.--
29 Notwithstanding any other provision of law, access to any
30 records and information pertaining to the child shall not be
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1 denied to any parent for the sole reason that such parent is not
2 a custodial parent of the child.
3 § 5310. Modification of existing custody orders.
4 Any order for the custody of the child of a marriage or
5 adoption entered by a court in this Commonwealth or any state
6 may, subject to the jurisdictional requirements set forth in 42
7 Pa.C.S. §§ 5342 (relating to purposes and construction of
8 subchapter) and 5344 (relating to jurisdiction), be modified at
9 any time to an order of sole custody or shared custody in
10 accordance with this subchapter to reflect changes in
11 circumstances which make the prior custody order insufficient or
12 ineffective.
13 Section 6. This act shall take effect in 60 days.
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