On Jan. 24, the new Child Custody Act (Act No. 112 of 2010) went into effect. The new Child Custody Act begins at 23 Pa. C.S.A. §5321 and concludes at 23 Pa. C.S.A. §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. This article will cover nine areas of the act. 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 The definition for shared physical custody has changed from the prior definition under now-repealed Section 5302.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 custody are new, among other definitions.
Practitioners should pay particular attention to the definition of relocation, which should be read in conjunction with Section 5337 pertaining to relocation, as the relocation section does not provide a definition for the term relocation. Relocation is defined as: "A change in a residence of the child which significantly impairs the ability of a non-relocating party to exercise custodial rights."
Additionally, with regard to the definition section, the term "visitation" has been removed from the custody statutes. The purpose for removing the term "visitation" is that it was often applied incorrectly by litigants and even court opinions. Under the prior statute, "visitation" was defined as: "the right to visit a child. The term does not include the right to remove a child from the custodial parent's control." Under the new act, if the court intends to restrict a party from removing the 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."
Second, 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 within six months after the removal of the child from the home.
Under the prior statutes, there was ambiguity as to the standing requirements and the requirements for a grandparent to succeed on the merits of his or her case. There was an argument that under the prior statutes, a grandparent standing in loco parentis had to satisfy the 12 month requirement. Under the new statute, it is clear that if a grandparent stands in loco parentis, the additional requirements are not applicable. Section 5325 is the statute governing standing for partial physical custody and supervised physical custody for grandparents and great-grandparents. This statute is a combination of the now repealed sections 5311, 5312 and 5313, pertaining to when a parent of the child is deceased, the parents of the children are separated for at least a period of six months, or the child has consecutively resided with the grandparent or great-grandparent for at least 12 months and has been subsequently removed from their custody.
Both sections 5324 and 5325 contain a new requirement that a grandparent must petition within six months of the child being removed from his or her custody in the event they are seeking custody under the provision pertaining to the child residing with them for a period of 12 months consecutively. This differs from the prior statute.
Third, Section 5328 provides the factors that a court shall consider when determining the best interest of the child. The factors contained in Section 5328 are basically a codification of the existing case law in determining the best interest of the child in custody disputes. However, the statute provides that the court shall consider all of the factors. There are 16 enumerated factors, including a catch-all of "any other relevant factor."
It will be interesting to see whether some of the factors in the statute will now carry more weight than prior to the enactment of the act because they are now enumerated. For example, there is an argument to be made that some of the prior doctrines, such as the separation of siblings doctrine, were being diluted. However, factor six of the new statute mentions, "The child's sibling relationships." Additionally, the history of drug and alcohol abuse and mental and physical condition of the parties and members of their household are also enumerated factors.
Fourth, 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 and 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.
The factors that the court shall determine in either granting or denying a proposed relocation are found under subsection (h). Prior to the enactment of this statute, the court followed the three-pronged test spelled out in the seminal case of Gruber v. Gruber and its progeny. Under the new statute, the Gruber factors are among 10 factors to be considered by the court. It is important that the practitioner carefully reads all of the factors contained under the relocation section. 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 parent proposing relocation as well as the child.
Fifth, sections 5329 and 5330 pertain to criminal convictions and charges. Section 5329 (criminal convictions) has become a hot topic among many practitioners, judges and court personnel. Under the prior statute, Section 5303(b), the court was to consider the criminal conduct of a party if he or she had been convicted of a crime enumerated under that section and determine whether that parent posed a threat or harm to the child before making an order of custody. Further, under the prior statute, a qualified professional was to be appointed to provide counseling to the parent convicted of the crime and had to provide testimony to the court regarding same before an order could be made.
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.
Sixth, 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. Interestingly, the statute provides that though the parenting plan is to be submitted to the court, it shall not be admissible as evidence by either party.
The statute provides a form parenting plan that practitioners may want to use as a starting point with their clients in framing proposed orders and getting a feel for their clients' desires. The parenting plan also can be a source of narrowing the issues in a custody case.
Seventh, Section 5334 pertains to the appointment of a guardian ad litem and Section 5335 pertains to counsel for the child. Section 5334 defines the duties of the guardian ad litem and provides that the guardian ad litem shall provide a recommendation in a written report to be filed with the court and made a part of the record regarding, among other things, the best interest of the child. The parties are permitted to file comments to the report. Under this section, the guardian ad litem cannot testify but may make legal argument.
Under Section 5335, an attorney may be appointed as counsel for the child if the court determines that it will assist in resolving issues. The counsel for the child is not subject to examination, unless he or she testifies. Section 5335 provides that if a guardian ad litem is appointed, the counsel for the child represents the legal interests of the child and the guardian ad litem represents the best interest of the child. The court may order the costs for appointing a guardian ad litem and counsel for the child.
Eighth, 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 physical custody actions.
Ninth, practitioners should pay particular attention to Section 5323(h), which provides that parties may seek custody if living separate and apart in the same residence. However, the custody order is effective only upon one of the parties physically vacating the residence or an order awarding one party exclusive occupancy of the residence. This section will be particularly helpful in counties that previously did not accept custody filings where the parties remain in the same residence at the time of the filing.
This section may also alleviate child snatching in that the custody order may be established before a party leaves the house. Otherwise, a party may take the child from the house and by the time the parties get to court, because of backlogs, a status quo will have formed that could prejudice the case. Under Section 5323(d), the court shall delineate the reasons for the custody decision on the record in open court or in a written opinion or order. This provision will be beneficial to the litigants so that there is an understanding of the court's decision.
The act primarily is a codification of the existing child custody laws. Practitioners hope that it will provide a form of predictability and guidance. Further, the act may be helpful to practitioners as it can be used as an outline and framework to follow when handling a child custody matter.
MICHAEL E. BERTIN is a partner in the Philadelphia law firm of Obermayer Rebmann Maxwell & Hippel. Bertin is co-chairman of the custody committee and treasurer of the family law section of the Philadelphia Bar Association, and a member of council and past member of the executive committee of the family law section of the Pennsylvania Bar Association.
This article is reprinted with permission from the February 8, 2011, issue of The Legal Intelligencer. © 2011 Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.