SB 78 — An Act amending Titles 23 (Domestic Relations) and 42 (Judiciary and Judicial Procedure) of the Pennsylvania Consolidated Statutes, in child custody, further providing for definitions, for award of custody, for factors to consider when awarding custody, for consideration of criminal conviction, for guardian ad litem for child, for counsel for child and for award of counsel fees, costs and expenses; and, in Administrative Office of Pennsylvania Courts, providing for child abuse and domestic abuse education and training program for judges and court personnel.

PRIOR PRINTER'S NO.

65 THEPRINTER'S GENERALNO. ASSEMBLY OF PENNSYLVANIA SENATE BILL Session of No.

78930 2021THE INTRODUCEDGENERAL BYASSEMBLY BAKER,OF SANTARSIERO,PENNSYLVANIA VOGEL,SENATE KEARNEY,BILL FONTANA,Session SCHWANK, BROWNE, PHILLIPS-HILL, MENSCH, YAW AND MUTH, COSTA, JANUARY 22, 2021 REFERRED TO JUDICIARY, JANUARY 22, 2021 AN ACT Amending Titles 23 (Domestic Relations) and 42 (Judiciary and Judicial Procedure) of theNo. Pennsylvania Consolidated Statutes, in child custody, further providing for definitions, for award of custody, for factors to consider when awarding custody, for consideration of criminal conviction, for guardian ad litem for child, for counsel for child and for award of counsel fees, costs and expenses;

78 2021 INTRODUCED BY BAKER, SANTARSIERO, VOGEL, KEARNEY, FONTANA, SCHWANK, BROWNE, PHILLIPS-HILL, MENSCH, YAW, MUTH, KANE,STA, COMITTA AND STEFANO, JANUARY 22, 2021 AS AMENDED ON THIRD CONSIDERATION, JUNE 21, 2021 AN ACT Amending Titles 23 (Domestic Relations) and 42 (Judiciary and Judicial Procedure) of the Pennsylvania Consolidated Statutes, in child custody, further providing for definitions, for award of custody, for factors to consider when awarding custody, for consideration of criminal conviction, for guardian ad litem for child, for counsel for child and for award of counsel fees, costs and expenses;

§ 505 (relating to use of force in 20210SB0078PN006520210SB0078PN0930 - 2 - self-protection) by a party in response to abuse or domestic abuse by the other party.

*"HOUSEHOLD *MEMBER." *A "NonprofessionalSPOUSE supervisedOR physicalAN custody."INDIVIDUAL CustodialWHO timeHAS duringBEEN whichA an<-- agencySPOUSE, orAN anINDIVIDUAL adult,LIVING whoAS isA notSPOUSE aOR licensedWHO professionalLIVED designatedAS byA theSPOUSE, courtA orPARENT agreedOR uponCHILD, byANOTHER theINDIVIDUAL parties,RELATED monitorsBY theCONSANGUINITY interactionOR betweenAFFINITY, theA childCURRENT andOR theFORMER individualSEXUAL withOR thoseINTIMATE rights.PARTNER OR AN INDIVIDUAL WHO SHARES BIOLOGICAL PARENTHOOD, CURRENTLY SHARING A HOUSEHOLD WITH THE CHILD OR A PARTY.

"Professional* * * "Nonprofessional supervised physical custody." Custodial time during which an agency or an adult, who is not a licensed professional<-- monitorsprofessional, designated by the interactioncourt betweenor theagreed childupon andby the individual<-- withparties, thosemonitors custodythe rightsinteraction andbetween promotes the child'schild health and safetythe duringindividual thewith interaction.those rights.

Section"Professional 3.supervised physical custody." Custodial time during which a licensed professional monitors, WITH EDUCATION <-- AND TRAINING ON THE DYNAMICS OF DOMESTIC VIOLENCE, SEXUAL ASSAULT, CHILD ABUSE AND THE IMPACT OF DOMESTIC VIOLENCE ON CHILDREN, OVERSEES the interaction between the child and the individual with those custody rights and promotes the child's <-- health and safety OF THE CHILD during the interaction.

<-- * * * <-- "TEMPORARY HOUSING INSTABILITY." A PERIOD NOT TO EXCEED SIX MONTHS FROM THE DATE OF THE LAST INCIDENT OF ABUSE AS DETERMINED BY A COURT.

20210SB0078PN0930 - 3 - Section 3.

* * * (e) Safety conditions.--After considering the factors under [section 5328(a)(2)] sections 5328, 5329 (relating to consideration of criminal conviction), 5329.1 (relating to consideration of child abuse and involvement with protective services) and 5330 (relating to consideration of criminal charge), if the court finds [that there is an ongoing] a history of abuse of the child or a household member by a party or A <-- PRESENT 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 20210SB0078PN0065 - 3 - household member who committed the abuse, the court shall include in the custody order safety conditions [designed], restrictions or safeguards as REASONABLY necessary to protect <-- the child or the abused party[.], including:

THE COURT SHALL <-- INCLUDE IN THE CUSTODY ORDER THE REASON FOR IMPOSING THE SAFETY CONDITIONS, RESTRICTIONS OR SAFEGUARDS AND AN EXPLANATION WHY THE SAFETY CONDITIONS, RESTRICTIONS OR SAFEGUARDS ARE IN THE BEST INTEREST OF THE CHILD OR THE ABUSED PARTY.

IF SUPERVISED CONTACT IS ORDERED, THERE SHALL BE A REVIEW OF THE RISK OF HARM AND NEED FOR CONTINUED SUPERVISION ON AT LEAST AN ANNUAL BASIS.

THE SAFETY CONDITIONS, RESTRICTIONS OR SAFEGUARDS MAY INCLUDE ANY OF THE FOLLOWING:

(3) Limitations on the time of day that physical custody is permitted or on the number of hours of physical custody and the maximum number of hours of physical custody permitted 20210SB0078PN0930 - 4 - per day or per week.

(4) Appoint a qualified professional specializing in <-- treatment relating to the history of abuse or risk of harm to provide counseling.

THE APPOINTMENT OF A QUALIFIED PROFESSIONAL <-- SPECIALIZING IN PROGRAMMING RELATING TO THE HISTORY OF ABUSE OR RISK OF HARM TO PROVIDE BATTERER'S INTERVENTION OR HARM PREVENTION PROGRAMMING.

BATTERER'S INTERVENTION AND HARM PREVENTION PROGRAMMING MAY INCLUDE PROGRAMMING DESIGNED TO REHABILITATE THE OFFENDING INDIVIDUAL, INCLUDING PRIORITIZING A BATTERER'S INTERVENTION OR HARM PREVENTION PROGRAM, IF AVAILABLE, OR THE IMPACTS OF PHYSICAL, SEXUAL OR DOMESTIC ABUSE ON THE VICTIM.

THE COURT MAY ORDER AN EVALUATION BY THE APPOINTED QUALIFIED PROFESSIONAL UNDER THIS PARAGRAPH TO DETERMINE WHETHER ADDITIONAL PROGRAMMING IS NECESSARY.

(6) Any other safety condition, restriction or safeguard as necessary to ensure the health and safety of the child.child OR <-- TO PROTECT A HOUSEHOLD MEMBER.

(e.1) Supervision.--If a court finds by a preponderance of the evidence that a party has subjected ABUSED the child or any <-- household member to abuse, the court shall be presumed toto, THERE <-- SHALL BE A REBUTTABLE PRESUMPTION THAT THE COURT SHALL only 20210SB0078PN0930 - 5 - allow nonprofessional supervised physical custody or professional supervised physical custody between the child and the party who committed the abuse unless the court makes a 20210SB0078PN0065<-- - 4 - finding on the record that it finds by a preponderance of the evidence that the party no longer poses a risk of abuse to the child or any other household member and that another custody arrangement is in the best interest of the child and will not cause physical, emotional or psychological harm to the child.child..

(e.2)A Professional<-- supervision.--IfCOURT aMAY courtFIND findsTHAT byAN aINDICATED preponderanceREPORT ofFOR thePHYSICAL evidenceOR thatSEXUAL thereABUSE isUNDER anCHAPTER ongoing63 risk(RELATING ofTO abuseCHILD ofPROTECTIVE theSERVICES) child,IS theA courtBASIS shallFOR beA presumedFINDING toOF onlyABUSE allowUNDER professionalTHIS supervisedSUBSECTION physicalONLY custodyAFTER betweenA theDE childNOVO andREVIEW theOF partyTHE whoCIRCUMSTANCES committedLEADING theTO abuseTHE unlessINDICATED theREPORT. court makes a finding on the record that it finds by a preponderance of the evidence that the party no longer poses a risk of abuse to the child or any other household member and that another custody arrangement is in the best interest of the child and will not cause physical, emotional or psychological harm to the child.

NOTWITHSTANDING THE PROVISIONS OF THIS SUBSECTION, THE COURT MAY AWARD AN ALTERNATIVE FORM OF CUSTODY IF THE COURT FINDS BY A PREPONDERANCE OF THE EVIDENCE THAT:

(1) THE PARTY NO LONGER POSES A RISK OF ABUSE TO THE CHILD OR ANY OTHER HOUSEHOLD MEMBER;

AND (2) ANOTHER CUSTODY ARRANGEMENT IS IN THE BEST INTEREST OF THE CHILD AND WILL NOT JEOPARDIZE THE HEALTH AND SAFETY OF THE CHILD.

(e.2) Professional supervision.--If a court finds by a preponderance of the evidence that there is an ongoing risk of abuse of the child, the court shall be presumed to THERE SHALL <-- BE A REBUTTABLE PRESUMPTION THAT THE COURT SHALL only allow professional supervised physical custody between the child and the party who committed the abuse unless the court makes a <-- finding on the record that it finds by a preponderance of the evidence that the party no longer poses a risk of abuse to the child or any other household member and that another custody arrangement is in the best interest of the child and will not 20210SB0078PN0930 - 6 - cause physical, emotional or psychological harm to the child.

POSES THE RISK OF ABUSE.

A COURT MAY FIND THAT AN INDICATED <-- REPORT FOR PHYSICAL OR SEXUAL ABUSE UNDER CHAPTER 63 IS A BASIS FOR A FINDING OF ABUSE UNDER THIS SUBSECTION ONLY AFTER A DE NOVO REVIEW OF THE CIRCUMSTANCES LEADING TO THE INDICATED REPORT.

NOTWITHSTANDING THE PROVISIONS OF THIS SUBSECTION, THE COURT MAY AWARD AN ALTERNATIVE FORM OF CUSTODY IF THE COURT FINDS BY A PREPONDERANCE OF THE EVIDENCE THAT:

(1) THE PARTY NO LONGER POSES A RISK OF ABUSE TO THE CHILD OR ANY OTHER HOUSEHOLD MEMBER;

AND (2) ANOTHER CUSTODY ARRANGEMENT IS IN THE BEST INTEREST OF THE CHILD AND WILL NOT JEOPARDIZE THE HEALTH AND SAFETY OF THE CHILD.

(1) Which party is more likely to ensure the health and <-- safety of the child.

[(1)) Which party is more likely to encourage and permit <-- frequent and continuing contact between the child and another party.] (2)(1) TheWHICH presentPARTY andIS pastMORE abuseLIKELY committedTO byENSURE aTHE partyHEALTH orAND 20210SB0078PN0065<-- -SAFETY 5OF -THE memberCHILD. 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.] (2.1) The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement with protective services).

(2.2)(2) ViolentThe orpresent assaultiveand behaviorpast abuse committed by a party,party includingor past20210SB0078PN0930 - 7 - member of the party's household.[, whether there is a continued risk of harm to the child or currentan protectionabused fromparty abuseand which party can better provide adequate physical safeguards and sexualsupervision violenceof the child.] (2.1) The information set forth in section 5329.1(a) (relating to consideration of child abuse protectionand orders.involvement with protective services).

(2.2) Violent or assaultive behavior committed by a party, including past or current protection from abuse and sexual violence abuse protection orders WHERE THERE HAS BEEN <-- A FINDING OF ABUSE.

(3)(2.4) TheTHE presentEXISTENCE andOF pastA parentalPROTECTION [duties]FROM andABUSE caretakerORDER duties<-- performedENTERED byON eachCONSENT partyOF onTHE behalfPARTIES, ofWITH theNO child.ADMISSION OR FINDING OF ABUSE, IF, UPON REVIEW OF THE FACTS PRESENTED AT THE CUSTODY HEARING, THE COURT FINDS THAT ABUSE OCCURRED.

(4)(3) The needpresent for stability and continuitypast inparental the[duties] child's education, family life and communitycaretaker life<-- exceptduties ifperformed changesby areeach necessaryparty toon protectbehalf the health and safety of the child.

(5)(4) The availabilityneed for stability and continuity in the child's education, family life and community life except if changes are necessary to protect the health and safety of extendedthe family.child OR A PARTY.

<-- (5) The availability of extended family.

In assessing the factor under this paragraph, IF THE COURT FINDS <-- 20210SB0078PN0930 - 8 - THAT the child's fear of a party IS based on the party's <-- ACTUAL AND specific conduct that is contrary to the child's <-- best interestinterest, THE FINDING shall be considered well-reasoned.