§ 5321. Scope.
This chapter applies to disputes relating to custody and visitation
matters.
NOTE: Should
read … This chapter directs the court for the resolution of disputes relating
to matters of custody and visitation of children in non-intact families.
§ 5322. Definitions.
The following words and phrases when used in this
chapter shall have the meanings given to them in this section unless the context
clearly indicates otherwise:
"Abuse." As defined in section 6102 (relating to definitions).
"Adult." An individual 18 years of age or older.
"Agency." Any organization, society, institution or other entity,
including the county children and youth social service agency or court facility,
which provides for the care of the child.
"Child." An unemancipated individual under 18 years of age.
“In
loco parentis.” Standing in place of a parent without formal legal approval. A
temporary status.
“Joint
custody.” Shared legal and shared physical custody.
"Legal
custody." An award that grants
a party the right to make major decisions on behalf of the child, including, but
not limited to, medical, religious and educational decisions.
“Parent.”
An adult individual who assumes responsibility for the care and well-being of a
child as an inherent and fundamental right. May be a biological or adoptive
parent. Does not include “guardian”, “agency”, “foster care”, etc.
"Parental
duties." Includes meeting the
physical, emotional, spiritual and educational needs of the child.
"Partial
physical custody." An award that grants a party the right to assume
physical custody of the child for less than a majority of the time. [SHOULD
BE DELETED]
Comment. This term is vague and is
confusing. It is used when defining VISITATION schedules, and is generally used
in conjunction with that term. Many states do not use this term. I suggest that
Pennsylvania discontinue the use of this term as it adds confusion rather than
clarity.
"Physical
custody." The actual physical
possession and control of a child.
"Primary
physical custody." An award
that grants a party 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
non-relocating party to exercise parental and custodial rights.
"Shared
legal custody." An award that grants to both parties the right to make
major decisions on behalf of the child.
"Shared
physical custody." An award that grants to both parties the right to assume
physical custody of the child, each having approximately the same amount of
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 exclusive physical custody of the child.
"Supervised
visitation." An award under
order of the court allowing a party to visit with a child under specific
conditions in 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 visitation rights.
"Visitation." An award that grants a
party the right to assume physical custody of the child for less than a majority
of the time. The right to spend time with the child but not the right to remove
the child from the care or control of a custodial party -- means to
spend time with a child in the presence of a custodial party or in an
environment approved by the court. This definition applies only to
distinguish from “partial physical custody”. See below.
Suggested:
"Visitation." The right to spend time
with the child with the consent and direction of the custodial parent or by
order of the court. Visitation grants a party the right to assume physical
custody of the child for less than a majority of the time and may extend to
temporary custody of the child for a period approved by a custodial parent.
Comment: This
definition incorporates the terms “partial custody” and “visitation” as
previously defined. Many states do not distinguish between “partial custody”
and “visitation” in their statutes.
* Definitions that are revised / added
are in BOLD type.
§
5323. Rights of the Parties.
(a)
Rights
of Parents. The right of a parent, either biological or adoptive, to act in the
best interest of their child is an irrebuttable “presumptive” fundamental
right under the U.S. Constitution. See Troxel
v. Granville, 99-138 (2000). This right includes the discretion to determine
the care, custody and control of the child(ren) and shall not be disturbed in
any court of law absent evidence of a substantiated threat of serious harm to
the child(ren) if forced to remain with the parent(s).
The dissolution of a marriage or the separation of cohabiting single parents
does not disturb or diminish the fundamental right of either parent to enjoy and
to fulfill their parental duties.
(b)
Rights
of Children. Children are endowed with certain inalienable rights, among them
are the natural and fundamental right to full and complete access to both
parents during and beyond the life of a marital or cohabiting relationship.
These rights include the unimpeded access to enjoy the love, affection,
nurturing, teaching, etc. to be derived from frequent and ongoing contact with
both parents and their extended families. These rights of a child extend to
children in intact households, as well as children in non-intact households. The
rights of a child shall not be abridged by a court of this Commonwealth, nor by
any other agency or division of this Commonwealth, nor by a parent of the child
or any other person, except under circumstances where a substantiated threat of
serious harm to the child has been demonstrated.
(c)
Rights
of Third Parties. Third parties includes biological relatives (step-parent,
grandparents, gr-grandparents, uncles, aunts, live-in companion who is not the
biological parent , etc.); persons who stand in loco parentis; persons who
assumed parental responsibility for a child with the consent of a parent.
The rights of third parties shall generally be subordinate to parental rights
which are presumptively superior, but are a rebuttable presumption. This
presumption is rebuttable where substantiated evidence of serious harm to the
child as a result of abuse, neglect, drug or alcohol abuse, criminal behavior,
etc. in the household is presented.
(d)
The
Commonwealth (state). The state has a right to intercede on behalf of a child
under the doctrine of parens patriae, which allows the state (through a
surrogate) to act in the best interest of a child who cannot provide for
itself, and who lacks proper care and custody from its parents. The state must
show a compelling state interest to contest the rebuttable presumption of the
superior rights of a parent or other party who has assumed parental
responsibility of a child. Unless the child is declared dependent, orphaned,
delinquent, incapacitated, etc., the state has the burden to demonstrate an
imminent threat of serious harm to the child.
§
5324.
(was
was
§
5323). Award
of custody or visitation.
(a) The rights of parents to unimpeded access to their children and the
rights of children to full and equal access to both parents demands that when a
dissolution of marriage, or the separation of the parents is effected, the
parents must both have equal and ongoing access to the child. Assuming that both
parents are fit parents and abuse of the child is not alleged, the court shall
issue an order that maximizes a child’s custodial periods with both parents.
Accordingly, the presumptive award for custody shall be JOINT CUSTODY, wherein
the parties share legal custody and equal physical custody of the child.
Joint Custody shall be a rebuttable presumption to be
overturned only where the welfare of the child is at risk under the above
standards, where one parent waives his/her right to Joint Custody, or in cases
where physical locations may prohibit an award of Joint Custody.
The
parties are encouraged to work together to define the parameters for equal
physical custody of a child. Absent agreement of the parents, the court may be
called upon to establish a schedule that ensures equal access to both parents
for a child.
(b) Types of award. Under
certain circumstances, an award of Joint Custody is inappropriate.
For these cases, a court may issue an award of custody from the list
below. Section 5329, below, lists the factors which a court must consider when
it has determined that an award of primary physical custody in one parent is
appropriate.
After considering
the factors set forth in section 5329 (relating to factors to consider when
awarding custody), the court may award any of the following types of custody and
visitation if it is in the best interest of the child:
(1)
Sole legal custody.
(2)
Shared legal custody.
(3)
Sole physical custody.
(4)
Primary physical custody.
(5)
Partial physical custody.
(6)
Visitation.
(7)
Supervised visitation.
(8) ….
(c) Interim
award. The court may issue an
interim award of custody or visitation to a party who has standing under section
5326 (relating to standing for any form of physical custody, legal custody or
visitation) in the manner prescribed by the Pennsylvania Rules of Civil
Procedure governing special relief in custody and visitation matters.
(d) Notice.
Any custody or visitation order by the court shall include notice of a
party's obligations under section 5337 (relating to relocation).
Suggested …
§ 5325. Enforcement.
In awarding custody or visitation, 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.
(a) Contempt
for noncompliance with any custody or visitation order.
(1)
As prescribed by general rule, a party who willfully fails to comply with
any custody or visitation order may be adjudged in contempt of court, which
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)
Loss
of custodial rights, but not of visitation rights and access to the child.
(v)
[REMOVE]
An order for nonrenewal, suspension or denial of operating privilege pursuant to
section 4355 (relating to denial or suspension of licenses). NEGATIVE ON THIS! !
! ! It is an unconstitutional infringement of a persons’ rights, unrelated
to the offense (civil contempt).
(vi)
[REMOVE]
Counsel fees and costs. NEGATIVE ON THIS! ! ! ! It
is an unconstitutional infringement of a persons’ rights to move for a
modification of a court order, or the status quo.
(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.
§ 5326. (NEW)
[was
5324] Standing for any form of legal
custody, physical custody, or visitation vs. a biological or adoptive parent.
Under § 5323, a biological or adoptive parent has
a fundamental right to act in the best interest of their child without
interference of the State. See Troxel v.
Granville, 99-138 (2000). The State may infringe on the right of a parent
ONLY if it can demonstrate a
compelling state interest, which, in custody cases, means a finding of an
imminent or substantiated threat of serious harm to the child.
(a)
The following individuals may file an action under this chapter for any form of
legal custody, physical custody, or visitation. Said parties shall be given
notice and an opportunity to participate in any such action initiated by another
party:
(1)
A
parent of the child.
(2)
A
party who stands in loco parentis for the child.
(3)
An
adult who has resided with the child in the same household for a period of not
less than 12 consecutive months during the prior six (6) years. ( Excluding
brief temporary absences of the child from the principal residence of that
adult).
NOTE: Under
the Senate proposed SB 1260, section 5323
(f) states:
(f)
Parties in same residence. Parties
living separate and apart in the same residence may seek relief under
this chapter, but any custody or visitation 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.
Comment: What does this mean? It reads as a complete redundancy and contradiction. Parties
living separate and apart in the same residence MUST, as a matter of logistics,
have equal access to the child. Subparagraph (1)
changes the conditions, and subparagraph (2)
is irrelevant in a custody order. It belongs with the distribution of assets in
the Divorce Decree.
DELETE subsection (f)!
§ 5327.
(NEW) [Old
§ 5325.] Standing for any form of legal custody, physical custody, or visitation
vs. a third party (a party other than a biological or adoptive parent) in cases
where the child is declared to be dependent, orphaned, or a child who is alleged
to be a victim of parental or system abuse; and/or where the parents have been
separated for a period of at least six (6) months, or where an action to
dissolve the marriage has been initiated, and there is supporting evidence of
the imminent threat of harm to the child:
(a) The following individuals may file an action
under this chapter for any form of legal custody, physical custody, or
visitation of a child where the child is declared to be dependent, orphaned, or
a child who is alleged to be a victim of parental or system abuse, or where one
or both parents are deceased
(1)
Any
party who may file under § 5326, above.
(2)
Any
adult individual who is biologically related to the child or children. (Includes
grandparents, gr-grandparents, uncles, aunts, cousins, etc.)
(3)
Any
adult individual who is related to the child or children by marriage or
adoption.
(e.g., the individuals named in subsections (1) & ( 2) above.
(4)
An agency of the state such as
Children & Youth Services.
Comment: The right of a parent, either biological
or adoptive, to act in the best interest of their child is an irrebuttable
“presumptive” fundamental right under the U.S. Constitution. See Troxel v.
Granville, 99-138 (2000). This right includes the discretion to determine the
care, custody and control of the child(ren) and shall not be disturbed in any
court of law absent allegations of a substantiated threat of serious harm to the
child(ren) if forced to remain with the parent(s).
(b) Effect
of adoption.--
(1)
Subsection
(a) shall not apply if the child has been adopted by an individual other than a
stepparent or parent's parent or grandparent.
(2)
Any physical custody or
visitation rights granted to a party with standing under this section prior to
the adoption of the child by an individual other than a stepparent or parent's
parent or grandparent shall be automatically terminated upon the adoption unless
such rights are specifically extended pursuant to an agreement or order of
court.
Comment: All legislation should be phrased in
language that lends itself to interpretation by lay persons so they can
understand their rights and responsibilities.
See Statutory
Construction Act.
The purpose
of this legislation is to express legislative intent regarding awards of custody
of children where parties are contesting the issue. The proposed SB 1260
(especially §§ 5324 and 5325)
is crafted such that no reasonable person can correctly state which
rights exist, and are not contravened by a subsequent (or prior) subsection.
Accordingly, §§5324 and 5325 are Unconstitutional as “vague and
arbitrary”. The legislature MUST express its intent with clarity to allow the
courts to render consistent decisions based on legislative intent.
Part of that process requires assigning
“weights” to the several and various possibilities that may emerge from
multiple permutations of temporary and permanent familial situations in their
various forms of dissolution.
Comment: This draft combines § 5324 and § 5325, and
renumbers § 5331 Parenting Plan as § 5328.
§ 5328. Parenting plan. (New)
(a)
Purpose.
This Act attempts to encourage the parties in a contested custody
proceeding to work together for the best interest of their child(ren). The
parties are hereby required:
(1)
To
submit a Parenting Plan agreed to JOINTLY for the care and custody of the child.
(2)
To
submit an individual Parenting Plan that addresses matters on which the parties
cannot reach agreement.
(b)
Contents. A parenting plan
shall include the following to aid the court in resolving the custody dispute.
(1)
The schedule for personal care
and control of the child, including parenting time, holidays and vacations.
(2)
The proposed education and
religious development of the child.
(3)
The physical environment where
the child will reside.
(4)
The health care of the child.
(5)
Child-care arrangements.
(6)
Transportation arrangements,
includes transfers between parents.
(7)
A procedure by which the parties
can amend or modify the custody order, and have permanent modifications
incorporated into the order.
(8)
Each parent’s commitment to
foster a positive relationship with the other parent and the grandparents of the
child(ren).
(9)
The obligations of each party
under the order, and procedures to resolve alleged breaches of the custody
order, including default judgments for egregious conduct by a party.
(10)
Any
other matter that serves the best interest of the child.
NOTE:
A parenting plan and the position of a party as set forth in that parenting plan
shall not be admissible as evidence by another party or the attorneys for either
party.
§ 5329. Presumption
in cases concerning physical custody.
The preservation of familial relationships is of
paramount concern for the long-term well-being and development of the child(ren).
To achieve this objective, a court order should maximize the parenting times of
both parents. In cases where the biological parents were married or cohabited,
an award of primary physical custody to either parent undermines the fundamental
concept of preserving the extended familial ties. Where the parents never
cohabited, absent clear and convincing evidence of a threat of serious harm to
the child, an award of primary physical custody shall vest in Mother. Otherwise:
(a)
Between
parents who cohabited. In any
action regarding the custody of a child between the parents of the child, there
shall be a presumption of shared legal custody and shared physical custody.
I.e., Joint Custody.
(1)
Either
parent may relinquish (waive) his/her right to shared legal OR shared physical
custody, or both.
(2)
A
parent who has waived any right under this subsection may later petition the
court to withdraw his/her waiver of rights.
(b)
Between a parent (or parents)
and a third party. In any action regarding the custody of the child between a
parent of the child and a non-parent, 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 of a threat of serious harm to the
child(ren) if custody remains with the parent(s).
(c)
Between
third parties. In any action regarding the custody of the child between a
non-parent and another non-parent, there shall be no presumption that custody
should be awarded to a particular party.
(1)
A
biological relative of the child shall be presumed to have a superior position
vs. a non-biological relative and non-relatives unless the child was adopted.
(2)
Relatives
by adoption shall be presumed to have a superior position vs. a biological
relative and non-relatives.
(3)
Non-relatives
shall be presumed to have a superior position as enumerated under §5324, in the
order identified within those subsections. This presumption may be rebutted by
clear and convincing evidence that a party from an inferior position can provide
a more stable and secure environment for the child, and that such party has
demonstrated a genuine concern for the long-term well-being of the child. The
court must consider the length of time that adoptive parents may have had
custody. A short-term adoption (less than 2
years) may support a determination that
biological relatives have a superior position vs. relatives of the adoptive
parents.
Comment:
Enumerate the right of a parent, either biological or adoptive, to act in the
best interest of their child as an irrebuttable “presumptive” fundamental
right under the U.S. Constitution. See Troxel
v. Granville, 99-138 (2000). This right includes the discretion to determine
the care, custody and control of the child(ren) and shall not be disturbed in
any court of law absent allegations of a serious threat of substantial harm to
the child(ren) if forced to remain with the parent(s).
NEW § 5330. Factors
to consider when awarding primary physical custody under §5324 or
§5326. The court MUST
consider these factors exercising discretion based on the circumstances of the
parties participating in the action.
(a) Primary Factors. In
ordering an award of primary custody, the court MUST consider all relevant
factors, including the following primary factors:
(1)
The
well-reasoned preference of the child, based on the child's maturity and
judgment, assuming a child of competent mental acuity and a reasonable age to
exercise choice.
(2)
Which
party is more likely to encourage and
affirmatively support a relationship with the other parent. [Co-parenting.]
(3)
Which
party is more likely to foster frequent and continuing contact between the child
and the other parent. [Co-parenting.]
(4)
The
child's sibling relationships.
(5)
The
effort or attempts of either parent to turn the child against the other parent
or the other parent’s family. [Alienation
of affection.]
(6)
The
history of drug or alcohol abuse of a party or member of a party's household.
(7)
The
mental and physical condition of a party or member of a party's household.
(8)
The
present and past abuse committed by a party or member of the party's household.
(9)
The
need for stability and continuity in the child's education, family life and
community life.
(b)
Secondary
Factors. In ordering an award of primary physical custody, the court should
consider the following secondary factors:
(1)
The
availability of extended family.
(A) Where
applicable and based on logistical restrictions, the amount of personal contact
with extended family members shall be considered, including contact with
grandparents et al.
(2)
The
parental duties performed by each party on behalf of the child attending to the
daily physical, emotional, educational, spiritual, and special needs of the
child.
(3)
The
level of conflict between the parties and the willingness and ability of the
parties to cooperate with one another.
(4)
The
physical environment that either parent can provide.
(5)
Which
party is more likely to encourage and permit frequent and continuing contact
between the child and another party. [Extended
family members.]
Comment: Some of the language in the 1999 draft of
this legislation appears to be facially neutral, but in fact, lends itself to a
prejudicial interpretation based on public perception of the qualities brought
to a household by gender attributes. This language must be eliminated, so as not
to prejudice the rights of one parent vs. the other.
(c)
A
court should not consider the following factors when deciding the custody of a
child.
See proposed SB 1260, section 5330.
§
5331. Consideration of criminal
charge or conviction.
Not
addressed at this time.
§ 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 either of the parties.
(c)
Costs. The court may NOT order a party to pay all or part of the costs of
the information programs under this section.
Comment:
Under subparagraph (a), the court may direct, but not order the parties …
Attendance at Informational programs cannot be ordered, and neither can the
costs to attend, as an infringement of an individual liberty under the
Constitution.
§
5333. Guardian ad litem.
Not
addressed at this time.
§ 5334. Counseling
as part of order.
(a)
Abuse.
The court may order individual counseling for the abuser where the allegations
are substantiated in a court of law:
(1)
In
situations involving abuse of the child.
(2)
In
cases involving spousal abuse.
(b)
Order. As part of a custody or visitation order, the court may require
the abusing party to attend counseling sessions specifically tailored for the
infraction(s).
(c)
Attendance Verification. A 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.
§
5335. Counsel for a child.
Not
addressed at this time.
§
5336. Access to records and
information.
Not
addressed at this time.
§
5337. Relocation.
Not
addressed at this time.
§
5338. Modification of existing
order.
Not
addressed at this time.
§
5339. Award of counsel fees.
Not
addressed at this time, but any award under this statute should be based on 42
Pa.C.S. §2503.
Other
issues are not addressed in this document. Several issues currently addressed by
SB 1260 will be handled differently under a presumption of Joint Custody due to
the recognized fundamental liberty interest of a parent.
