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Child Custody Act Changes

By Maureen Kroll, RN, MN, JD

New Child Custody Act Changes

On January 24, 2011, the new Child Custody Act (Act No. 112 of 2010) went into effect. The new Child Custody Act begins at 12 Pa. C.S.A. Section 5321 and concludes at 23 Pa. C.S.A. Section 5340, and replaces Sections 5301 through 5315, as well as Section 4346. The act was approximately 10 years in the making and is prospective and applies to actions commenced on or after Jan. 24, 2011. However, practitioners should review the entire act as there are other areas not being addressed by this article.

First, Section 5322 is the definitions section of the Act. The definition for shared physical custody has changed from the prior definition under now-repealed Section 5302. Additionally, the definitions for shared legal custody, primary physical custody and sole physical are new, among other definitions.

Under the new act, if the court intends to restrict a party from removing a child, it will do so under the physical custody provisions of the order and not term it “visitation.” Further, the most restrictive form of custody under the Act is “supervised physical custody.” The standing provisions are found under Sections 5324 and 5325. It is interesting to note that Section 5324 is titled, “Standing for any form of physical custody or legal custody.” The statute enumerates three types of individuals who may file an action: parents, a person who stands in loco parentis to the child; a grandparent who is not in loco parentis to the child: whose relationship with the child began either with the consent of a parent or the child or under a court order; who assumes or is willing to assume responsibility for the child; and when one of the following conditions is met: the child has been determined to be a dependent; the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity; or 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 six months after the removal of the child from the home.

Section 5337 pertains to relocation: The statute provides that the relocation section applies to “any proposed relocation.” Therefore, practitioners must review the definition contained in Section 5322 to determine whether the section applies to his or her case. The relocation section can be broken down into two categories primarily: the procedural aspects of relocation; and the factors that the court shall apply in determining whether relocation is appropriate and in the best interest of the child. Under the procedural section, practitioners must pay particular attention to the notice requirements along with the forms to be sent to the deadlines to be met. Failure of a party opposing relocation to file an objection to same within 30 days after receipt of the notice of relocation shall “foreclose that party from objecting to the relocation.”

Failure to give the proper notice may be used as a factor in making a determination regarding the relocation, whether custody rights should be modified, sufficient cause for ordering counsel fees and expenses, as well as grounds for contempt and the imposition of sanctions. Under the new statute, a hearing on relocation basically shall occur prior to the relocation unless exigent circumstance exist. The burden of proof regarding the relocation is on the movant, but each party has the burden of establishing the integrity of his or her motive in either seeking the relocation or opposing the relocation. This is in line with existing case law.

Prior to the enactment of the statute, there was a string of cases that applied a “trickle down” theory of “if the custodial parent significantly benefits from the move the benefit flows to the child.” The new statute clearly precludes a trickle down theory as the factors apply to both the parents proposing relocation as well as the child.

Under the new statute, there are 16 new offenses that have been added to the prior list of crimes, and there is now a requirement that prior to the entry of a custody order, the court provide for an evaluation to determine whether the offender poses a threat to the child and whether counseling is necessary. The new statute also makes the requirement applicable to household members in addition to the parties. The statute is silent as to who conducts the evaluation.

Section 5331 pertains to parenting plans. The trial court has the discretion to require the parties to submit parenting plans, which cover many issues regarding child custody including, but not limited to, physical and legal custody issues and holidays.

Section 5327 contains the presumptions in a custody case regarding primary physical custody. Under this section, there is no presumption in a custody dispute for primary custody between two parents. In a case regarding a parent versus a third party, there is a presumption that the parent should have custody which can be rebutted by clear and convincing evidence. If the matter is between two third parties, there is no presumption and the parties are on equal footing. The statute is silent as to presumptions regarding partial custody actions.

The specific “best interest” factors that a court must now consider in all custody matters are as follows:

  • The present and past abuse committed by a party or member of a party’s household, whether
    there is 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.
  • The parental duties performed by each party on behalf of the child.
  • The need for stability and continuity in the child’s education, family life and community life.
  • The availability of extended family.
  • The child’s sibling relationships.
  • The well-reasoned preference of the child, based on the child’s maturity and judgment.
  • 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.
  • Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with
    the child adequate for the child’s emotional needs.
  • Which party is more likely to attend to the daily physical, emotional, developmental, educational
    and special needs of the child.
  • The proximity of the residence of the parties.
  • Each party’s availability to care for the child or ability to make appropriate childcare arrangements.
  • The level of conflict between the parties and the willingness and ability of the parties to
    cooperate with one another party’s efforts to protect a child from abuse by another party is not
    evidence of unwillingness or inability to cooperate with that party.
  • The history of drug or alcohol abuse of a party or member of a party’s household.
  • The mental and physical condition of a party or member of a party’s household.
  • Any other relevant factor.


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