Bill Text: PA HB1639 | 2009-2010 | Regular Session | Amended

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Bill Title: Further providing for contempt for noncompliance with visitation or partial custody order and for child custody; and making conforming amendments.

Spectrum: Moderate Partisan Bill (Democrat 27-7)

Status: (Passed) 2010-11-23 - Act No. 112 [HB1639 Detail]

Download: Pennsylvania-2009-HB1639-Amended.html

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SENATE AMENDED
PRIOR PRINTER'S NOS. 2037, 3705, 3884, 4280 PRINTER'S NO. 4468
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No. 1639 Session of2009
INTRODUCED BY MANDERINO, CALTAGIRONE, CARROLL, FABRIZIO, FREEMAN, GODSHALL, JOSEPHS, MANN, MILNE, MUNDY, PASHINSKI, READSHAW, SIPTROTH, K. SMITH, TRUE, WALKO, WHITE, YOUNGBLOOD, MUSTIO, KULA, LEVDANSKY, D. COSTA, CREIGHTON, HORNAMAN, PARKER, McILVAINE SMITH, BRIGGS, GIBBONS, FRANKEL, MAHONEY, KORTZ, FARRY, MELIO AND CUTLER, JUNE 8, 2009
SENATOR CORMAN, APPROPRIATIONS, IN SENATE, RE-REPORTED AS AMENDED, OCTOBER 12, 2010
AN ACT
Amending Titles 23 (Domestic Relations) and 42 (Judiciary and
Judicial Procedure) of the Pennsylvania Consolidated
Statutes, further providing for contempt for noncompliance
with visitation or partial custody order and for child
custody; and making conforming amendments.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 4346, Chapter 53 and Subchapter A
headings and sections 5301, 5302, 5303, 5304, 5305, 5306, 5307,
5308, 5309, 5310, 5311, 5312, 5313, 5314 and 5315 of Title 23 of
the Pennsylvania Consolidated Statutes are repealed:
[§ 4346. Contempt for noncompliance with visitation or partial
custody order.
(a) General rule.--A party who willfully fails to comply
with any visitation or partial custody order may, as prescribed
by general rule, be adjudged in contempt. Contempt shall be
punishable by any one or more of the following:
(1) Imprisonment for a period not to exceed six months.
(2) A fine not to exceed $500.
(3) Probation for a period not to exceed six months.
(4) An order for nonrenewal, suspension or denial of
operating privilege pursuant to section 4355 (relating to
denial or suspension of licenses).
(b) Condition for release.--An order committing a person to
jail under this section shall specify the condition which, when
fulfilled, will result in the release of the obligor.
CHAPTER 53
CUSTODY
SUBCHAPTER A
GENERAL PROVISIONS
§ 5301. Declaration of policy.
The General Assembly declares that it is the public policy of
this Commonwealth, when in the best interest of the child, to
assure a reasonable and continuing contact of the child with
both parents after a separation or dissolution of the marriage
and the sharing of the rights and responsibilities of child
rearing by both parents and continuing contact of the child or
children with grandparents when a parent is deceased, divorced
or separated.
§ 5302. Definitions.
The following words and phrases when used in this subchapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Child." Any unemancipated person under 18 years of age.
"Legal custody." The legal right to make major decisions
affecting the best interest of a minor child, including, but not
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limited to, medical, religious and educational decisions.
"Partial custody." The right to take possession of a child
away from the custodial parent for a certain period of time.
"Physical custody." The actual physical possession and
control of a child.
"Shared custody." An order awarding shared legal or shared
physical custody, or both, of a child in such a way as to assure
the child of frequent and continuing contact with and physical
access to both parents.
"Visitation." The right to visit a child. The term does not
include the right to remove a child from the custodial parent's
control.
§ 5303. Award of custody, partial custody or visitation.
(a) General rule.--
(1) In making an order for custody or partial custody,
the court shall consider the preference of the child as well
as any other factor which legitimately impacts the child's
physical, intellectual and emotional well-being.
(2) In making an order for custody, partial custody or
visitation to either parent, the court shall consider, among
other factors, which parent is more likely to encourage,
permit and allow frequent and continuing contact and physical
access between the noncustodial parent and the child.
(3) The court shall consider each parent and adult
household member's present and past violent or abusive
conduct which may include, but is not limited to, abusive
conduct as defined under the act of October 7, 1976
(P.L.1090, No.218), known as the Protection From Abuse Act.
(b) Consideration of criminal conviction.--If a parent has
been convicted of or has pleaded guilty or no contest to an
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offense as set forth below, the court shall consider such
criminal conduct and shall determine that the parent does not
pose a threat of harm to the child before making an order of
custody, partial custody or visitation to that parent:
(1) 18 Pa.C.S. Ch. 25 (relating to criminal homicide);
(2) 18 Pa.C.S. § 2901 (relating to kidnapping);
(3) 18 Pa.C.S. § 2902 (relating to unlawful restraint);
(4) 18 Pa.C.S. § 3121 (relating to rape);
(5) 18 Pa.C.S. § 3122.1 (relating to statutory sexual
assault);
(6) 18 Pa.C.S. § 3123 (relating to involuntary deviate
sexual intercourse);
(7) 18 Pa.C.S. § 3124.1 (relating to sexual assault);
(8) 18 Pa.C.S. § 3125 (relating to aggravated indecent
assault);
(9) 18 Pa.C.S. § 3126 (relating to indecent assault);
(10) 18 Pa.C.S. § 3127 (relating to indecent exposure);
(11) 18 Pa.C.S. § 4302 (relating to incest);
(12) 18 Pa.C.S. § 4304 (relating to endangering welfare
of children);
(13) 18 Pa.C.S. § 5902(b) (relating to prostitution and
related offenses); or
(14) 18 Pa.C.S. § 6312 (relating to sexual abuse of
children).
(b.1) Consideration of criminal charge.--
(1) A parent who has obtained information under 42
Pa.C.S. § 1904 (relating to availability of criminal charge
information in child custody proceedings) of the charge filed
against the other parent for an offense listed in paragraph
(2) may move for a temporary custody order or to modify an
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existing custody, partial custody or visitation order. The
temporary custody or modification hearing shall be scheduled
expeditiously.
(2) In evaluating any request for temporary custody or
modification of a custody, partial custody or visitation
order, the court shall consider whether the parent who is or
has been charged with an offense listed below poses a risk of
harm to the child:
(i) 18 Pa.C.S. Ch. 25;
(ii) 18 Pa.C.S. § 2702 (relating to aggravated
assault);
(iii) 18 Pa.C.S. § 2706 (relating to terroristic
threats);
(iv) 18 Pa.C.S. § 2709.1 (relating to stalking);
(v) 18 Pa.C.S. § 2901;
(vi) 18 Pa.C.S. § 2902;
(vii) 18 Pa.C.S. § 2903 (relating to false
imprisonment);
(viii) 18 Pa.C.S. § 3121;
(ix) 18 Pa.C.S. § 3122.1;
(x) 18 Pa.C.S. § 3123;
(xi) 18 Pa.C.S. § 3124.1;
(xii) 18 Pa.C.S. § 3125;
(xiii) 18 Pa.C.S. § 3126;
(xiv) 18 Pa.C.S. § 3127;
(xv) 18 Pa.C.S. § 3301 (relating to arson and
related offenses);
(xvi) 18 Pa.C.S. § 4302;
(xvii) 18 Pa.C.S. § 4304;
(xviii) 18 Pa.C.S. § 6312; and
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(xix) 23 Pa.C.S. § 6114 (relating to contempt for
violation of order or agreement).
(3) Failure to apply for information under 42 Pa.C.S. §
1904 or to act under this subsection shall not prejudice any
parent in a custody or visitation proceeding.
(b.2) Parent convicted of murder.--No court shall award
custody, partial custody or visitation to a parent who has been
convicted of murder under 18 Pa.C.S. § 2502(a) (relating to
murder of the first degree) of the other parent of the child who
is the subject of the order, unless the child is of suitable age
and consents to the order.
(c) Counseling.--In making a determination to award custody,
partial custody or visitation pursuant to subsection (b), the
court shall appoint a qualified professional to provide
counseling to an offending parent described in subsection (b)
and shall take testimony from that professional regarding the
provision of such counseling prior to issuing any order of
custody, partial custody or visitation. Counseling, required in
accordance with this subsection, shall include a program of
treatment or individual therapy designed to rehabilitate a
parent which addresses, but is not limited to, issues regarding
physical and sexual abuse, domestic violence, the psychology of
the offender and the effects of abuse on the victim. If the
court awards custody, partial custody or visitation to an
offending parent described in subsection (b), the court may
require subsequent periodic counseling and reports on the
rehabilitation of the offending parent and the well-being of the
child following an order relating to custody, partial custody or
visitation. If, upon review of a subsequent report or reports,
the court determines that the offending parent poses a threat of
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harm to the child, the court may schedule a hearing and modify
the order of custody or visitation to protect the well-being of
the child.
(d) Sole custody.--The court shall award sole custody when
it is in the best interest of the child.
§ 5304. Award of shared custody.
An order for shared custody may be awarded by the court when
it is in the best interest of the child:
(1) upon application of one or both parents;
(2) when the parties have agreed to an award of shared
custody; or
(3) in the discretion of the court.
§ 5305. Counseling.
(a) General rule.--The court may require the parents to
attend counseling sessions and may consider the recommendations
of the counselors prior to awarding sole or shared custody.
These counseling sessions may include, but shall not be limited
to, discussions of the responsibilities and decisionmaking
arrangements involved in both sole and shared custody and the
suitability of each arrangement to the capabilities of each
parent or both parents.
(b) Temporary custody.--The court may temporarily award
custody to either parent or both parents pending resolution of
any counseling.
(c) Report.--The court may require the counselor to submit a
report if the court desires and within such reasonable time as
the court determines.
§ 5306. Plan for implementation of custody order.
The court, in its discretion, may require the parents to
submit to the court a plan for the implementation of any custody
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order made under this subchapter. Upon the request of either
parent or the court, the domestic relations section of the court
or other party or agency approved by the court shall assist in
the formulation and implementation of the plan.
§ 5307. Denial of custody under agreement or plan.
When the court declines to enter an order awarding custody
either as agreed to by the parents or under the plan developed
by the parents, the court shall state its reasons for denial on
the record.
§ 5308. Removal of party or child from jurisdiction.
If either party intends to or does remove himself or the
child from this Commonwealth after a custody order has been
made, the court, on its own motion or upon motion of either
party, may review the existing custody order.
§ 5309. Access to records and information.
(a) General rule.--Except as provided in subsections (b) and
(c), each parent shall be provided access to all the medical,
dental, religious or school records of the child, the residence
address of the child and of the other parent and any other
information that the court deems necessary.
(b) Court determination not to release information.--The
court, in its discretion, may determine not to release any part
or parts of the information in this section but in doing so must
state its reason for denial on the record.
(c) Nondisclosure of confidential information.--The court
shall not order that the address of a shelter for battered
spouses and their dependent children or otherwise confidential
information of a domestic violence counselor be disclosed to the
defendant or his counsel or any party to the proceedings.
§ 5310. Modification of existing custody orders.
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Except as provided in 51 Pa.C.S. § 4109 (relating to child
custody proceedings during military deployment), any order for
the custody of the child of a marriage entered by a court in
this Commonwealth or any state may, subject to the
jurisdictional requirements set forth in Chapter 54 (relating to
uniform child custody jurisdiction and enforcement), be modified
at any time to an order of shared custody in accordance with
this subchapter.
§ 5311. When parent deceased.
If a parent of an unmarried child is deceased, the parents or
grandparents of the deceased parent may be granted reasonable
partial custody or visitation rights, or both, to the unmarried
child by the court upon a finding that partial custody or
visitation rights, or both, would be in the best interest of the
child and would not interfere with the parent-child
relationship. The court shall consider the amount of personal
contact between the parents or grandparents of the deceased
parent and the child prior to the application.
§ 5312. When parents' marriage is dissolved or parents are
separated.
In all proceedings for dissolution, subsequent to the
commencement of the proceeding and continuing thereafter or when
parents have been separated for six months or more, the court
may, upon application of the parent or grandparent of a party,
grant reasonable partial custody or visitation rights, or both,
to the unmarried child if it finds that visitation rights or
partial custody, or both, would be in the best interest of the
child and would not interfere with the parent-child
relationship. The court shall consider the amount of personal
contact between the parents or grandparents of the party and the
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child prior to the application.
§ 5313. When grandparents may petition.
(a) Partial custody and visitation.--If an unmarried child
has resided with his grandparents or great-grandparents for a
period of 12 months or more and is subsequently removed from the
home by his parents, the grandparents or great-grandparents may
petition the court for an order granting them reasonable partial
custody or visitation rights, or both, to the child. The court
shall grant the petition if it finds that visitation rights
would be in the best interest of the child and would not
interfere with the parent-child relationship.
(b) Physical and legal custody.--A grandparent has standing
to bring a petition for physical and legal custody of a
grandchild. If it is in the best interest of the child not to be
in the custody of either parent and if it is in the best
interest of the child to be in the custody of the grandparent,
the court may award physical and legal custody to the
grandparent. This subsection applies to a grandparent:
(1) who has genuine care and concern for the child;
(2) whose relationship with the child began with the
consent of a parent of the child or pursuant to an order of
court; and
(3) who for 12 months has assumed the role and
responsibilities of the child's parent, providing for the
physical, emotional and social needs of the child, or who
assumes the responsibility for a child who has been
determined to be a dependent child pursuant to 42 Pa.C.S. Ch.
63 (relating to juvenile matters) or who assumes or deems it
necessary to assume responsibility for a child who is
substantially at risk due to parental abuse, neglect, drug or
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alcohol abuse or mental illness. The court may issue a
temporary order pursuant to this section.
§ 5314. Exception for adopted children.
Sections 5311 (relating to when parent deceased), 5312
(relating to when parents' marriage is dissolved or parents are
separated) and 5313 (relating to when child has resided with
grandparents) shall not apply if the child has been adopted by a
person other than a stepparent or grandparent. Any visitation
rights granted pursuant to this section prior to the adoption of
the child shall be automatically terminated upon such adoption.
§ 5315. Court-appointed child custody health care or behavioral
health practitioners.
No party to a child custody matter in which the court has
appointed a licensed health care or behavioral health
practitioner to assist the court by conducting an examination or
evaluation of the parties involved or making a recommendation
concerning a child custody agreement or order may be permitted
to file a complaint against the practitioner with the
practitioner's State licensing board prior to the final
agreement or order being issued and for 60 days thereafter. As
used in this section, "licensed health care or behavioral health
practitioner" means a person who is licensed, certified,
accredited or otherwise regulated by the Commonwealth to provide
health care or behavioral health services.]
Section 2. Title 23 is amended by adding a chapter to read:
CHAPTER 53
CHILD CUSTODY
Sec.
5321. Scope of chapter.
5322. Definitions.
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5323. Award of custody.
5324. Standing for any form of physical custody or legal
custody.
5325. Standing for partial physical custody and supervised
physical custody.
5326. Effect of adoption.
5327. Presumption in cases concerning primary physical custody.
5328. Factors to consider when awarding custody.
5329. Consideration of criminal conviction.
5330. Consideration of criminal charge.
5331. Parenting plan.
5332. Informational programs.
5333. Counseling as part of order.
5334. Guardian ad litem for child.
5335. Counsel for child.
5336. Access to records and information.
5337. Relocation.
5338. Modification of existing order.
5339. Award of counsel fees, costs and expenses.
5340. Court-appointed child custody health care or behavioral
health practitioners.
§ 5321. Scope of chapter.
This chapter applies to disputes relating to child custody
matters.
§ 5322. Definitions.
(a) This chapter.--The following words and phrases when used <--
in this chapter shall have the meanings given to them in this
section subsection unless the context clearly indicates <--
otherwise:
"Abuse." As defined in section 6102 (relating to
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definitions).
"Adult." An individual 18 years of age or older.
"Agency." Any organization, society, institution, court <--
facility or other entity, including the county children and <--
youth social service agency or court facility, which provides
for the care of the child. a child. The term does not include a <--
county children and youth social service agency.
"Child." An unemancipated individual under 18 years of age.
"Legal custody." The right to make major decisions on behalf
of the child, including, but not limited to, medical, religious
and educational decisions.
"Parental duties." Includes meeting the physical, emotional
and social needs of the child.
"Partial physical custody." The right to assume physical
custody of the child for less than a majority of the time.
"Physical custody." The actual physical possession and
control of a child.
"Primary physical custody." The right to assume physical
custody of the child for the majority of time.
"Relocation." A change in a residence of the child which
significantly impairs the ability of a nonrelocating party to
exercise custodial rights.
"Shared legal custody." The right of more than one
individual to legal custody of the child.
"Shared physical custody." The right of more than one
individual to assume physical custody of the child, each having
significant periods of physical custodial time with the child.
"Sole legal custody." The right of one individual to
exclusive legal custody of the child.
"Sole physical custody." The right of one individual to
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exclusive physical custody of the child.
"Supervised physical custody." Custodial time during which
an agency or an adult designated by the court or agreed upon by
the parties monitors the interaction between the child and the
individual with those rights.
(b) Other law.--In a statutory provision other than in this <--
chapter, when the term "visitation" is used in reference to
child custody, the term may be construed to mean:
(1) partial physical custody;
(2) shared physical custody; or
(3) supervised physical custody.
§ 5323. Award of custody.
(a) Types of award.--After considering the factors set forth
in section 5328 (relating to factors to consider when awarding
custody), the court may award any of the following types of
custody if it is in the best interest of the child:
(1) Shared physical custody.
(2) Primary physical custody.
(3) Partial physical custody.
(4) Sole physical custody.
(5) Supervised physical custody.
(6) Shared legal custody.
(7) Sole legal custody.
(b) Interim award.--The court may issue an interim award of
custody to a party who has standing under section 5324 (relating
to standing for any form of physical custody or legal custody)
or 5325 (relating to standing for partial physical custody and
supervised physical custody), in the manner prescribed by the
Pennsylvania Rules of Civil Procedure governing special relief
in custody matters.
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(c) Notice.--Any custody order shall include notice of a
party's obligations under section 5337 (relating to relocation).
(d) Reasons for award.--The court shall delineate the
reasons for its decision on the record in open court or in a
written opinion or order.
(e) Safety conditions.--After considering the factors under
section 5328(a)(2), 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 to
protect the child or the abused party.
(f) Enforcement.--In awarding custody, the court shall
specify the terms and conditions of the award in sufficient
detail to enable a party to enforce the court order through law
enforcement authorities.
(g) Contempt for noncompliance with any custody order.--
(1) A party who willfully fails to comply with any
custody order may, as prescribed by general rule, be adjudged
in contempt. Contempt shall be punishable by any one or more
of the following:
(i) Imprisonment for a period of not more than six
months.
(ii) A fine of not more than $500.
(iii) Probation for a period of not more than six
months.
(iv) An order for nonrenewal, suspension or denial
of operating privilege under section 4355 (relating to
denial or suspension of licenses).
(v) Counsel fees and costs.
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(2) An order committing an individual to jail under this
section shall specify the condition which, when fulfilled,
will result in the release of that individual.
(h) Parties in same residence.--Parties living separate and
apart in the same residence may seek relief under this chapter,
but any custody order made under such a circumstance shall be
effective only upon:
(1) one party physically vacating the residence; or
(2) an order awarding one party exclusive possession of
the residence.
§ 5324. Standing for any form of physical custody or legal
custody.
The following individuals may file an action under this
chapter for any form of physical custody or legal custody:
(1) A parent of the child.
(2) A person who stands in loco parentis to the child.
(3) A grandparent of the child who is not in loco
parentis to the child:
(i) whose relationship with the child began either
with the consent of a parent of the child or under a
court order;
(ii) who assumes or is willing to assume
responsibility for the child; and
(iii) when one of the following conditions is met:
(A) the child has been determined to be a
dependent child under 42 Pa.C.S. Ch. 63 (relating to
juvenile matters);
(B) the child is substantially at risk due to
parental abuse, neglect, drug or alcohol abuse or
incapacity; or
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(C) the child has for a period of at least 12
consecutive months resided with the grandparent,
excluding brief temporary absences of the child from
the home, and is removed from the home by the
parents, in which case the action must be filed
within six months after the removal of the child from
the home.
§ 5325. Standing for partial physical custody and supervised
physical custody.
In addition to situations set forth in section 5324 (relating
to standing for any form of physical custody or legal custody),
grandparents and great-grandparents may file an action under
this chapter for partial physical custody or supervised physical
custody in the following situations:
(1) where the parent of the child is deceased, a parent
or grandparent of the deceased parent may file an action
under this section;
(2) where the parents of the child have been separated
for a period of at least six months or have commenced and
continued a proceeding to dissolve their marriage; or
(3) when the child has, for a period of at least 12
consecutive months, resided with the grandparent or great-
grandparent, excluding brief temporary absences of the child
from the home, and is removed from the home by the parents,
an action must be filed within six months after the removal
of the child from the home.
§ 5326. Effect of adoption.
Any rights to seek physical custody or legal custody rights
and any custody rights that have been granted under section 5324
(relating to standing for any form of physical custody or legal
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custody) or 5325 (relating to standing for partial physical
custody and supervised physical custody) to a grandparent or
great-grandparent prior to the adoption of the child by an
individual other than a stepparent, grandparent or great-
grandparent shall be automatically terminated upon such
adoption.
§ 5327. Presumption in cases concerning primary physical
custody.
(a) Between parents.--In any action regarding the custody of
the child between the parents of the child, there shall be no
presumption that custody should be awarded to a particular
parent.
(b) Between a parent and third party.--In any action
regarding the custody of the child between a parent of the child
and a nonparent, there shall be a presumption that custody shall
be awarded to the parent. The presumption in favor of the parent
may be rebutted by clear and convincing evidence.
(c) Between third parties.--In any action regarding the
custody of the child between a nonparent and another nonparent,
there shall be no presumption that custody should be awarded to
a particular party.
§ 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 safety of the child, including the
following:
(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and another
party.
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(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.
(3) The parental 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.
(5) The availability of extended family.
(6) The child's sibling relationships.
(7) The well-reasoned preference of the child, based on
the child's maturity and judgment.
(8) The attempts of a parent to turn the child against
the other parent, except in cases of domestic violence where
reasonable safety measures are necessary to protect the child
from harm.
(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
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
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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.
(16) Any other relevant factor.
(b) Gender neutral.--The court shall be gender neutral in In <--
making a determination under subsection (a). No, no party shall <--
receive preference based solely upon gender in any award granted <--
under this chapter.
(c) Grandparents and great-grandparents.--
(1) In ordering partial physical custody or supervised
physical custody to a party who has standing under section
5325(1) or (2) (relating to standing for partial physical
custody and supervised physical custody), the court shall
consider the following:
(i) the amount of personal contact between the child
and the party prior to the filing of the action;
(ii) whether the award interferes with any parent-
child relationship; and
(iii) whether the award is in the best interest of
the child.
(2) In ordering partial physical custody or supervised
physical custody to a parent's parent or grandparent who has
standing under section 5325(3), the court shall consider
whether the award:
(i) interferes with any parent-child relationship;
and
(ii) is in the best interest of the child.
§ 5329. Consideration of criminal conviction.
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(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 parent
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. § 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).
18 Pa.C.S. § 3130 (relating to conduct relating to sex
offenders).
20090HB1639PN4468 - 21 -
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.
(b) Parent convicted of murder.--No court shall award
custody, partial custody or supervised physical custody to a
parent who has been convicted of murder under 18 Pa.C.S. §
2502(a) (relating to murder) of the other parent of the child
20090HB1639PN4468 - 22 -
who is the subject of the order unless the child is of suitable
age and consents to the order.
(c) Initial evaluation.--The court shall provide for an
evaluation to determine whether:
(1) the party or household member who committed an
offense under subsection (a) poses a threat to the child; and
(2) counseling is necessary for that party or household
member.
(d) Counseling.--
(1) Where the court determines under subsection (c) that
counseling is necessary, it shall appoint a qualified
professional specializing in treatment relating to the
particular offense to provide counseling to the offending
individual.
(2) Counseling may include a program of treatment or
individual therapy designed to rehabilitate the offending
individual which addresses, but is not limited to, issues
regarding physical and sexual abuse, the psychology of the
offender and the effects of the offense on the victim.
(e) Subsequent evaluation.--
(1) At any time during or subsequent to the counseling
under subsection (d), the court may require another
evaluation to determine whether further counseling is
necessary.
(2) If the court awards custody to a party who committed
an offense under subsection (a) or who shares a household
with an individual who committed an offense under subsection
(a), the court may require subsequent evaluations on the
rehabilitation of the offending individual and the well-being
of the child subsequent to the order. If upon review of a
20090HB1639PN4468 - 23 -
subsequent evaluation the court determines that the offending
individual poses a threat of physical, emotional or
psychological harm to the child, the court may schedule a
hearing to modify the custody order.
(f) Costs.--The court may order a party to pay all or part
of the costs of the counseling and evaluations under this
section.
§ 5330. Consideration of criminal charge.
(a) Expedited hearing.--A party who has obtained information
under 42 Pa.C.S. § 1904 (relating to availability of criminal
charge information in child custody proceedings) or otherwise
about a charge filed against the other party for an offense
listed under section 5329(a) (relating to consideration of
criminal conviction) may move for a temporary custody order or
modification of an existing custody order. The court shall hold
the hearing under this subsection in an expeditious manner.
(b) Risk of harm.--In evaluating any request under
subsection (a), the court shall consider whether the party who
is or has been charged with an offense set forth in section
5329(a) poses a risk of physical, emotional or psychological
harm to the child.
(c) No prejudice.--Failure to either apply for information
under 42 Pa.C.S. § 1904 or act under this section shall not
prejudice any party in a custody proceeding.
§ 5331. Parenting plan.
(a) Purpose.--In a contested custody proceeding, the court
may require the parties to submit parenting plans for the care
and custody of the child to aid the court in resolving the
custody dispute. A parenting plan and the position of a party as
set forth in that parenting plan shall not be admissible as
20090HB1639PN4468 - 24 -
evidence by another party.
(b) Contents.--A parenting plan shall include the following:
(1) The schedule for personal care and control of the
child, including parenting time, holidays and vacations.
(2) The education and religious involvement, if any, of
the child.
(3) The health care of the child.
(4) Child-care arrangements.
(5) Transportation arrangements.
(6) A procedure by which proposed changes, disputes and
alleged breaches of the custody order may be adjudicated or
otherwise resolved through mediation, arbitration or other
means.
(7) Any matter specified by the court.
(8) Any other matter that serves the best interest of
the child.
(c) Form.--If the court orders the parties to propose a
parenting plan, it shall be submitted to the court in
substantially the following form:
CAPTION
PARENTING PLAN
This parenting plan involves the following child/children:
Child's Name Age Where does this child live?
1................... .............. ...........................
2................... .............. ...........................
3................... .............. ...........................
If you have children not addressed by this parenting plan, name
here:
Child's Name Age Where does this child live?
1................... .............. ...........................
20090HB1639PN4468 - 25 -
2................... .............. ...........................
3................... .............. ...........................
Legal Custody (who makes decisions about certain things):
Circle one
Diet.......... Both parties decide together / Plaintiff /
Defendant
Religion....... Both parties decide together / Plaintiff /
Defendant
Medical Care... Both parties decide together / Plaintiff /
Defendant
Mental Health Care... Both parties decide together / Plaintiff /
Defendant
Discipline..... Both parents decide together / Plaintiff /
Defendant
Choice of School.... Both parents decide together / Plaintiff /
Defendant
Choice of Study..... Both parents decide together / Plaintiff /
Defendant
School Activities... Both parents decide together / Plaintiff /
Defendant
Sports Activities... Both parents decide together / Plaintiff /
Defendant
Additional items... Both parents decide together / Plaintiff /
Defendant
Explain what process you will use to make decisions?
(For example, the parent confronted with or anticipating the
choice will call the other parent when the choice presents
itself, and the other parent must agree or disagree within 24
hours of any deadline)
................................................................
20090HB1639PN4468 - 26 -
................................................................
Physical Custody (where the child/children live)
The child's/children's residence is with........................
Describe which days and which times of the day the
child/children will be with each person:
Sunday Monday Tuesday Wednesday Thursday Friday Saturday
........................................................
Describe where and when the child/children will be dropped off
and/or picked up (day and time of day)?
Drop-Off
Where...................................................
When....................................................
........................................................
Pick-Up
Where ...................................................
When ....................................................
.........................................................
If one of you doesn't show up, how long will the other
wait?.......................................................
If there are any extraordinary costs (taxi, train, airplane,
etc.), who will pay for which costs?
...........................................................
...........................................................
HOLIDAYS
Where will the child/children stay?
HOLIDAY YEAR A YEAR B EVERY YEAR
Martin Luther King Day .......... .......... ...........
President's Day .......... .......... ...........
Easter .......... .......... ...........
Memorial Day .......... .......... ...........
20090HB1639PN4468 - 27 -
Fourth of July .......... .......... ...........
Labor Day .......... .......... ...........
Yom Kippur .......... .......... ...........
Rosh Hashanah .......... .......... ...........
Thanksgiving .......... .......... ...........
Vacation after Thanksgiving .......... .......... ...........
Christmas Vacation .......... .......... ...........
Kwanzaa .......... .......... ...........
New Year's Eve/Day .......... .......... ...........
Spring Vacation .......... .......... ...........
Easter Sunday .......... .......... ...........
Child's Birthday .......... .......... ...........
Mother's Day .......... .......... ...........
Father's Day .......... .......... ...........
Other .......... .......... ...........
Other .......... .......... ...........
Other .......... .......... ...........
Summer Vacation Plans
.............................................................
.............................................................
Special Activities or School Activities
Will both of you attend?
Child's Name Activity If not, which of you will attend?
................. .......... ..................................
................. .......... ..................................
................. .......... ..................................
Temporary changes to this parenting schedule
From time to time, one of you might want or need to rearrange
the parenting time schedule due to work, family or other events.
You can attempt to agree on these changes. If you cannot agree,
20090HB1639PN4468 - 28 -
the parent receiving the request will make the final decision.
The parent asking for the change will ask......in
person........by letter/mail.....by phone
No later than
....12 hours..... 24 hours.... 1 week..... 1 month
The parent being asked for a change will reply
.... in person..... by letter/mail..... by phone
No later than
..... 12 hours....... 24 hours........ 1 week....... 1 month
May parents contact one another?..............................
When the child/children is/are with one of you, how may they
contact the other parent?.......................................
................................................................
When and how may ............contact the child?
................................................................
................................................................
In the event that proposed changes, disputes or alleged breaches
of this parenting plan and custody order are necessary or
desired, the parties agree that such changes will be addressed
by the following method (specify method of arbitration,
mediation, court action, etc.):
................................................................
................................................................
The following matter or matters as specified by the court:
................................................................
................................................................
Other (Anything else you want to agree on)
................................................................
................................................................
...............................................................
20090HB1639PN4468 - 29 -
Date........................... ................................
Signature of Mother
Date........................... ................................
Signature of Father
Date........................... ................................
Signature of Witness
§ 5332. Informational programs.
(a) Attendance.--The court may direct the parties to attend
informational programs concerning parental duties.
(b) Process not delayed.--Subsequent proceedings and the
entry of any order or decree shall not be delayed because of the
lack of participation in any informational program by one of the
parties.
(c) Costs.--The court may order a party to pay all or part
of the costs of the informational programs under this section.
§ 5333. Counseling as part of order.
(a) Attendance.--The court may, as part of a custody order,
require the parties to attend counseling sessions.
(b) Abuse.--In situations involving abuse, the court may
order individual counseling for the abuser but may not order the
parties to attend joint counseling.
(c) Verification.--Each party's participation in the
counseling sessions shall be verified by the counselor.
(d) Costs.--The court may order a party to pay all or part
of the costs of the counseling sessions under this section.
§ 5334. Guardian ad litem for child.
(a) Appointment.--The court may on its own motion or the
motion of a party appoint a guardian ad litem to represent the
child in the action. The court may assess the cost upon the
parties or any of them or as otherwise provided by law. The
20090HB1639PN4468 - 30 -
guardian ad litem must be an attorney at law.
(b) Powers and duties.--The guardian ad litem shall be
charged with representation of the legal interests and the best
interests of the child during the proceedings and shall do all
of the following:
(1) Meet If appropriate to the child's age and maturity, <--
meet with the child as soon as possible following the
appointment, and on a regular basis thereafter in a manner <--
appropriate to the child's age and maturity.
(2) On a timely basis, be given access to relevant court
and county agency records, reports of examination of the <--
parents or other custodian of the child and medical,
psychological and school records.
(3) Participate in all proceedings.
(4) Conduct such further investigation necessary to
ascertain the facts relevant facts for presentation to the <--
court.
(5) Interview potential witnesses, including the child's
parents, caretakers and foster parents and caretakers, if <--
any,. The guardian ad litem may examine and cross-examine <--
witnesses and present witnesses and evidence necessary to
protect the best interests of the child.
(6) Make specific recommendations in a written report to <--
the court relating to the best interests of the child,
including any services necessary to address the child's needs
and safety. The court shall make the written report part of <--
the record so that it may be reviewed by the parties. The
parties may file with the court written comments regarding
the contents of the report. The comments filed by the parties
shall also become part of the record.
20090HB1639PN4468 - 31 -
(7) Explain the proceedings to the child to the extent
appropriate given the child's age, mental condition and
emotional condition.
(8) Advise the court of the child's wishes to the extent
that they can be ascertained and present to the court
whatever evidence exists to support the child's wishes. When
appropriate because of the age or mental and emotional
condition of the child, determine to the fullest extent
possible the wishes of the child and communicate this
information to the court. A difference between the child's
wishes under this paragraph and the recommendations under
paragraph (6) shall not be considered a conflict of interest
for the guardian ad litem.
(c) Abuse.--If substantial allegations of abuse of 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.
(d) Evidence subject to examination.--A guardian ad litem
may not testify except as authorized by Rule 3.7 of the Rules of
Professional Conduct, but may make legal argument based on
relevant evidence that shall be subject to examination by the
parties.
(e) Costs.--The court may order a party to pay all or part
of the costs of appointing a guardian ad litem under this
section.
§ 5335. Counsel for child.
(a) Appointment.--The court may appoint counsel to represent
20090HB1639PN4468 - 32 -
the child if the court determines that the appointment will
assist in resolving the issues in the custody proceeding. If a
child has legal counsel and a guardian ad litem, counsel shall
represent the legal interests of the child and the guardian ad
litem shall represent the best interests of the child.
(b) Abuse.--Substantial allegations of abuse of the child
constitute a reasonable basis for appointing counsel for the
child.
(c) Not subject to examination.--Counsel appointed by the
court for the child shall not be subject to examination unless
such counsel testifies in the matter.
(d) Costs.--The court may order a party to pay all or part
of the costs of appointing counsel for the child under this
section.
§ 5336. Access to records and information.
(a) General rule.--Except as provided in subsections (b) and
(c):
(1) A party granted sole or shared legal custody under
section 5323 (relating to award of custody) shall be provided
access to:
(i) the medical, dental, religious and school
records of the child;
(ii) the address of the child and any other party;
and
(iii) any other information that the court deems
necessary or proper.
(2) Access to any records and information pertaining to
the child may not be denied solely based upon a parent's
physical custody schedule.
(3) Upon request, a parent, party or entity possessing
20090HB1639PN4468 - 33 -
any information set forth in paragraph (1) shall provide it
to any party granted sole or shared legal custody.
(b) Nondisclosure of confidential information.--The court
shall not order the disclosure of any of the following
information to any parent or party granted custody:
(1) The address of a victim of abuse.
(2) Confidential information from an abuse counselor or
shelter.
(3) Information protected under Chapter 67 (relating to
domestic and sexual violence victim address confidentiality).
(4) Information independently protected from disclosure
by the child's right to confidentiality under the act of July
9, 1976 (P.L.817, No.143), known as the Mental Health
Procedures Act, or any other statute.
(c) Other information.--The court may determine not to
release information set forth in subsection (a), in which case
it shall state the reason for its denial on the record.
§ 5337. Relocation.
(a) Applicability.--This section applies to any proposed
relocation.
(b) General rule.--No relocation shall occur unless:
(1) every individual who has custody rights to the child
consents to the proposed relocation; or
(2) the court approves the proposed relocation.
(c) Notice.--
(1) The party proposing the relocation shall notify
every other individual who has custody rights to the child.
(2) Notice, sent by certified mail, return receipt
requested, shall be given no later than:
(i) the 60th day before the date of the proposed
20090HB1639PN4468 - 34 -
relocation; or
(ii) the tenth day after the date that the
individual knows of the relocation, if:
(A) the individual did not know and could not
reasonably have known of the relocation in sufficient
time to comply with the 60-day notice; and
(B) it is not reasonably possible to delay the
date of relocation so as to comply with the 60-day
notice.
(3) Except as provided by section 5336 (relating to
access to records and information), the following
information, if available, must be included with the notice
of the proposed relocation:
(i) The address of the intended new residence.
(ii) The mailing address, if not the same as the
address of the intended new residence.
(iii) Names and ages of the individuals in the new
residence, including individuals who intend to live in
the new residence.
(iv) The home telephone number of the intended new
residence, if available.
(v) The name of the new school district and school.
(vi) The date of the proposed relocation.
(vii) The reasons for the proposed relocation.
(viii) A proposal for a revised custody schedule.
(ix) Any other information which the party proposing
the relocation deems appropriate.
(x) A counter-affidavit as provided under subsection
(d)(1) which can be used to object to the proposed
relocation and the modification of a custody order.
20090HB1639PN4468 - 35 -
(xi) A warning to the nonrelocating party that if
the nonrelocating party does not file with the court an
objection to the proposed relocation within 30 days after
receipt of the notice, that party shall be foreclosed
from objecting to the relocation.
(4) If any of the information set forth in paragraph (3)
is not known when the notice is sent but is later made known
to the party proposing the relocation, then that party shall
promptly inform every individual who received notice under
this subsection.
(d) Objection to proposed relocation.--
(1) A party entitled to receive notice may file with the
court an objection to the proposed relocation and seek a
temporary or permanent order to prevent the relocation. The
nonrelocating party shall have the opportunity to indicate
whether he or she objects to relocation or not, and whether <--
he or she objects to modification of the custody order or <--
not. If the party objects to either relocation or
modification of the custody order, a hearing shall be held as
provided in subsection (g) (g)(1). The objection shall be <--
made by completing and returning to the court a counter-
affidavit, which shall be verified subject to penalties under
18 Pa.C.S. § 4904 (relating to unsworn falsification to
authorities), in substantially the following form:
COUNTER-AFFIDAVIT REGARDING RELOCATION
This proposal of relocation involves the following
child/children:
Child's Name Age Currently residing at:
...................... ................. .......................
Child's Name Age Currently residing at:
20090HB1639PN4468 - 36 -
...................... ................. .......................
Child's Name Age Currently residing at:
...................... ................. .......................
I have received a notice of proposed relocation and
1. .... I do not object to the relocation and I do not object
to the modification of the custody order consistent with the
proposal for revised custody schedule as attached to the notice.
2. .... I do not object to the relocation, but I do object to
modification of the custody order, and I request that a hearing
be scheduled:
a. .... Prior to allowing (name of child/children) to
relocate.
b. .... After the child/children relocate.
3. .... I do object to the relocation and I do object to the
modification of the custody order, and I further request that a
hearing be held on both matters prior to the relocation taking
place.
................................................................
I understand that in addition to checking (2) or (3) above, I
must also file this notice with the court in writing and serve
it on the other party by certified mail, return receipt
requested. If I fail to do so within 30 days of my receipt of
the proposed relocation notice, I shall be foreclosed from
objecting to the relocation.
................................................................
I verify that the statements made in this counter-affidavit are
true and correct. I understand that false statements herein are
made subject to the penalties of 18 Pa.C.S. § 4904 (relating to
unsworn falsification to authorities).
Date:
20090HB1639PN4468 - 37 -
................................................................
................................................................
(2) An objection made under this subsection shall be
filed with the court within 30 days of receipt of the
proposed relocation notice, and served on the other party by
certified mail, return receipt requested.
(3) If notice of the proposed relocation has been
properly given and no objection to the proposed relocation
has been filed in court, then it shall be presumed that the
nonrelocating party has consented to the proposed relocation.
(4) If a party who has been given proper notice does not
file with the court an objection to the relocation within 30
days after receipt of the notice but later petitions the
court for review of the custodial arrangements, the court
shall not accept testimony challenging the relocation.
(e) Confirmation of relocation.--If no objection to the
proposed relocation is filed under subsection (d), the party
proposing the relocation shall file the following with the court
prior to the relocation:
(1) an affidavit stating that the party provided notice
to every individual entitled to notice, the time to file an
objection to the proposed relocation has passed and no
individual entitled to receive notice has filed an objection
to the proposed relocation;
(2) Proof that proper notice was given in the form of a
return receipt with the signature of the addressee and the
full notice that was sent to the addressee.
(3) a petition to confirm the relocation and modify any
existing custody order; and
(4) a proposed order containing the information set
20090HB1639PN4468 - 38 -
forth in subsection (c)(3).
(f) Modification of custody order.--If a counter-affidavit
regarding relocation is filed with the court which indicates the
nonrelocating party both has no objection to the proposed
relocation and no objection to the modification of the custody
order consistent with the proposal for revised custody schedule,
the court may modify the existing custody order by approving the
proposal for revised custody schedule submitted under section
5337(c)(viii), and shall specify the method by which its future
modification can be made if desired by either party. If a
counter-affidavit regarding relocation is filed with the court
which indicates the nonrelocating party objects either to the
proposed relocation or to the modification of the custody order
consistent with the proposal for revised custody schedule, the
court shall modify the existing custody order only after holding
a hearing to establish the terms and conditions of the order
pursuant to the relocation indicating the rights, if any, of the
nonrelocating parties. The court shall determine whether such <--
hearing should occur expeditiously prior to the relocation of
the child or children, or whether it can be held at a date
following relocation.
(g) Hearing.--
(1) The Except as set forth in paragraph (3), the court <--
shall hold an expedited full hearing on the proposed
relocation after a timely objection has been filed and before
the relocation occurs unless exigent circumstances exist, in <--
which case the relocation may occur pending an expedited full
hearing.
(2) Except as set forth in paragraph (3), the court may, <--
on its own motion, hold an expedited full hearing on the
20090HB1639PN4468 - 39 -
proposed relocation before the relocation occurs.
(3) Notwithstanding paragraphs (1) and (2), if the court
finds that exigent circumstances exist, the court may approve
the relocation pending an expedited full hearing.
(2) (4) If the court approves the proposed relocation, <--
it shall:
(i) modify any existing custody order; or
(ii) establish the terms and conditions of a custody
order.
(h) Relocation factors.--In determining whether to grant a
proposed relocation, the court shall consider the following
factors, giving weighted consideration to those factors which
affect the safety of the child:
(1) The nature, quality, extent of involvement and
duration of the child's relationship with the party proposing
to relocate and with the nonrelocating party, siblings and
other significant persons in the child's life.
(2) The age, developmental stage, needs of the child and
the likely impact the relocation will have on the child's
physical, educational and emotional development, taking into
consideration any special needs of the child.
(3) The feasibility of preserving the relationship
between the nonrelocating party and the child through
suitable custody arrangements, considering the logistics and
financial circumstances of the parties.
(4) The child's preference, taking into consideration
the age and maturity of the child.
(5) Whether there is an established pattern of conduct
of either party to promote or thwart the relationship of the
child and the other party.
20090HB1639PN4468 - 40 -
(6) Whether the relocation will enhance the general
quality of life for the party seeking the relocation,
including, but not limited to, financial or emotional benefit
or educational opportunity.
(7) Whether the relocation will enhance the general
quality of life for the child, including, but not limited to,
financial or emotional benefit or educational opportunity.
(8) The reasons and motivation of each party for seeking
or opposing the relocation.
(9) The present and past abuse committed by a party or
member of the party's household and whether there is a
continued risk of harm to the child or an abused party.
(10) Any other factor affecting the best interest of the
child.
(i) Burden of proof.--
(1) The party proposing the relocation has the burden of
establishing that the relocation will serve the best interest
of the child as shown under the factors set forth in
subsection (g) (h). <--
(2) Each party has the burden of establishing the
integrity of that party's motives in either seeking the
relocation or seeking to prevent the relocation.
(j) Failure to provide reasonable notice.--The court may
consider a failure to provide reasonable notice of a proposed
relocation as:
(1) a factor in making a determination regarding the
relocation;
(2) a factor in determining whether custody rights
should be modified;
(3) a basis for ordering the return of the child to the
20090HB1639PN4468 - 41 -
nonrelocating party if the relocation has occurred without
reasonable notice;
(4) sufficient cause to order the party proposing the
relocation to pay reasonable expenses and counsel fees
incurred by the party objecting to the relocation; and
(5) a ground for contempt and the imposition of
sanctions against the party proposing the relocation.
(k) Mitigation.--Any consideration of a failure to provide
reasonable notice under subsection (i) shall be subject to
mitigation if the court determines that such failure was caused
in whole, or in part, by abuse.
(l) Effect of relocation prior to hearing.--If a party
relocates with the child prior to a full expedited hearing, the
court shall not confer any presumption in favor of the
relocation.
§ 5338. Modification of existing order.
(a) Best interest of the child.--Upon petition, a court may
modify a custody order to serve the best interest of the child.
(b) Applicability.--This section shall apply to any custody
order entered by a court of this Commonwealth or any other state
subject to the jurisdictional requirements set forth in Chapter
54 (relating to uniform child custody jurisdiction and
enforcement).
§ 5339. Award of counsel fees, costs and expenses.
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.
§ 5340. Court-appointed child custody health care or behavioral
health practitioners.
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No party to a child custody matter in which the court has
appointed a licensed health care or behavioral health
practitioner to assist the court by conducting an examination or
evaluation of the parties involved or making a recommendation
concerning a child custody agreement or order may be permitted
to file a complaint against the practitioner with the
practitioner's State licensing board prior to the final
agreement or order being issued and for 60 days thereafter. As
used in this section, "licensed health care or behavioral health
practitioner" means a person who is licensed, certified,
accredited or otherwise regulated by the Commonwealth to provide
health care or behavioral health services.
Section 3. Section 1904(b), (c) and (h) of Title 42 are
amended to read:
§ 1904. Availability of criminal charge information in child
custody proceedings.
* * *
(b) Criminal charges enumerated.--The criminal charge
information that shall be available on the information system
shall be limited to the offenses listed in 23 Pa.C.S. §
[5303(b.1)(2) (relating to award of custody, partial custody or
visitation)] 5329(a) (relating to consideration of criminal
conviction).
(c) Application for access to criminal charge information.--
To obtain information about charges covered in 23 Pa.C.S. §
[5303(b.1)(2)] 5329(a), a parent who has been awarded custody[,]
or partial custody [or visitation] or who is a party to a
custody proceeding must file an application for access to the
information with the office of the prothonotary in the county
where the proceeding or order was filed.
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(1) A person who knowingly gives false information with
the intent to gain information provided for under this
section commits an offense under 18 Pa.C.S. § 4904(a)
(relating to unsworn falsification to authorities).
(2) The application must be filed with the prothonotary
by one of the following methods:
(i) In person, at the office of the prothonotary, by
the parent who is filing the application. The applicant
must have a valid form of photoidentification available
for the inspection of the prothonotary.
(ii) By mailing a notarized application using first
class mail.
(iii) By including the application with the original
complaint, initial response or any other pleading or
motion filed with the prothonotary.
(3) The Administrative Office shall develop the
application for access to the criminal charge information
system. The following information shall be included in the
application:
(i) Docket number of original court filing.
(ii) Date of filing.
(iii) Date of birth of all children involved in the
custody proceeding or order.
(iv) A personal access code.
(v) A notice to the parent that additional
information relating to criminal history record
information is available, as provided for in 18 Pa.C.S.
Ch. 91 (relating to criminal history record information).
(vi) A statement verifying that:
(A) the person who is filing for access to the
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criminal charge information system is the actual
person listed on the application;
(B) to the best of the applicant's knowledge and
belief, all the information included in the
application is true and correct; and
(C) the applicant is a party to the custody
proceeding or order that is listed on the
application.
(vii) A warning as to the penalty under 18 Pa.C.S. §
4904.
(viii) Any additional information that it is
determined to be necessary to expedite the verification
of the application and to provide access to the system,
as determined by the Administrative Office.
(4) Applications shall be made available through county
prothonotaries.
* * *
(h) Information available to parent.--
(1) After applying and qualifying to obtain the criminal
charge information provided by the system, a parent may
request information by telephone as to whether the other
parent has been charged with any offense listed in 23 Pa.C.S.
§ [5303(b.1)(2)] 5329(a).
(2) The parent shall also be entitled to criminal
history record information as provided for in 18 Pa.C.S. Ch.
91, and the parent shall be informed of the availability.
(3) Criminal charge information shall be retained on the
system for the period of time as provided for the retention
of criminal charges and records under 18 Pa.C.S. Ch. 91 and
then only until the youngest child involved in the custody
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proceeding or order reaches 18 years of age. At no time shall
information be retained on the system beyond what is
permitted under 18 Pa.C.S. Ch. 91.
* * *
Section 4. A proceeding under the former provisions of 23
Pa.C.S. Ch. 53 which was commenced before the effective date of
this section shall be governed by the law in effect at the time
the proceeding was initiated.
Section 5. This act shall take effect in 60 days.
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