June 6, 2003
The Honorable Senators:
GREENLEAF, LEMMOND, M. WHITE, BOSCOLA AND MOWERY
Capitol Building Harrisburg, PA 17120
Dear Senator:
I commend your interest in sponsoring legislation to amend the Child Custody
Act. However, I would like to bring to your attention that SB 275, which lists
you as a sponsor, is an inadequate effort to improve a deplorable situation.
SB 275 is a rewrite of SB 1260, which did not pass the prior General Assembly
of PA. That legislation and this, are sadly lacking in functions to protect the
interests of the children, and preserving the parental rights of mothers and
fathers.
There is an abundance of law, including U.S. Supreme Court cases, that assert
that parenting is a fundamental liberty interest which shall not be invaded by
the courts absent compelling evidence of danger to the child. Simply stated,
this means that the courts have no jurisdiction to intrude on disputes between
parents unless the child is threatened with harm. Whether the threshold is
"imminent" is irrelevant at this point.
Respecting the constitutional rights of all parties, legislators should be
drafting statutes to limit the courts involvement into family matters. Further,
any legislation should protect the constitutional rights of the potential
litigants. Accordingly, I have edited SB 275 to correct several deficiencies
that may, under court application, deprive either parent of their constitutional
rights. Also, I respectfully ask that you reconsider whether the General
Assembly is acting in the child's best interest, or the best interest of the
Pennsylvania Bar Association and other parasites in the divorce industry with
this legislation.
Current law in Pennsylvania holds that in custody cases, there is a
presumption that the parents are both acting in the best interest of their
child(ren). The trial judge has a duty to do the same. As such, guardian ad
litems (GAL) are not appointed in such cases. The inference is that the court
may delegate, or the GAL may usurp, the judicial power of the court.
The section of SB 275 that proposes to allow judges to appoint a GAL departs
from this settled law. SB 275 endorses more discretion for judges, and opens the
door for judicial manipulation of custody cases, undermining the public
confidence in the judicial system.
As a practicing attorney in family law, I have witnessed the court abuse its
power. I therefore beseech each of you to re-examine SB 275 with the intention
to limit judicial discretion. Recent application of law evidences a heavy bias
in favor of maternal custody. The social impact of this trend is extremely
negative as documented in governmental studies.
A better solution is to enact legislation that gives both parents a fair
chance for equal custody, and lets them know that this is the presumed outcome.
Such legislation will accomplish two stated objectives: 1) it will encourage
negotiated settlements between the parties; 2) it will reduce the length, if not
the volume, of court cases.
I have attached my edited version of SB 275. It contains comments that
explain the reasoning for proposed sections/clauses. Please have your staff
attorney review it for conformity with existing law and expressed public policy.
I would be happy to engage in dialogue to develop a Child Custody Act that will
serve the general public and preserves the rights of all family members.
Please add my name as a party who offers to testify before the Senate
Judiciary Committee when SB 275 is presented for public hearings. Thank you for
your efforts in this regard.
Give shared custody a chance.
Respectfully,
Eugene A. Wrona
