SB 868 — 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.

1229 PRINTER'STHE NO.GENERAL ASSEMBLY OF PENNSYLVANIA SENATE BILL Session of No.

2008868 THE2019 GENERALINTRODUCED ASSEMBLYBY OFSANTARSIERO, PENNSYLVANIAFONTANA, SENATEMUTH, BILLHUGHES, SessionCOLLETT, SEPTEMBER 30, 2019 COSTA, BLAKE AND MENSCH, REFERRED TO JUDICIARY, SEPTEMBER 30, 2019 AN ACT Amending Titles 23 (Domestic Relations) and 42 (Judiciary and Judicial Procedure) of No.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;

868in 2019Administrative INTRODUCEDOffice BY SANTARSIERO, FONTANA, MUTH, HUGHES, COLLETT, BREWSTER, SCHWANK, COSTA, BLAKE, MENSCH, KEARNEY, LEACH, YUDICHAK, STREET, SABATINA, BROWNE AND BARTOLOTTA, SEPTEMBER 30, 2019 SENATOR BAKER, JUDICIARY, AS AMENDED, SEPTEMBER 22, 2020 AN ACT Amending Titles 23 (Domestic Relations) and 42 (Judiciary and Judicial Procedure) of the Pennsylvania ConsolidatedCourts, definitions,providing for awardprogram of custody, for factorsjudges to consider when awarding custody, for consideration of criminal conviction, for guardian ad litem for child, for counsel for child and forcourt awardpersonnel; of counsel fees, costs and expenses;

AND,and, <-- in Administrativedepositions Officeand ofwitnesses, Pennsylvaniafurther Courts, providing for childrights abuse and domesticservices. violence ABUSE education and <-- training program for judges and court personnel;

and, in <-- depositions and witnesses, further providing for rights and services.

(2) Domestic violence ABUSE is a pattern of coercive and <-- controlling tactics by one partner against another in an intimate partner relationship designed to maintain control over the partner and make the major decisions in the relationship.

ABUSE(3) WITHINAlthough THEabusers FAMILYoften ORuse HOUSEHOLDphysical ANDviolence CANas <--one INCLUDEof ABUSEthe OFtactics Ato PARTNER,commit SPOUSE,domestic CHILDviolence, ORnot PET.all abusers engage in physical violence and most tactics are not physical or illegal.

(3)(4) AlthoughCommon abuserstactics oftenused useto physicalcommit domestic violence asinclude oneverbal, ofemotional, thepsychological tacticsand economic abuse, isolation, threats, including threats to commitseek domesticcustody violence,if notthe allvictim abusersleaves, <--controlling engagebehaviors, inmonitoring, physicallitigation violenceabuse and mostdemands ABUSE,for THESEcustody tacticsor arejoint <--custody notto NECESSARILYpressure physicalthe partner to return or illegal.punish the partner for leaving.

<-- (4) Common tactics used to commit domestic violence <-- THESE TACTICS CAN include verbal, emotional, psychological <-- and economic abuse, isolation, threats, including threats to <-- seek custody if the victim leaves, controlling behaviors, monitoring, litigation abuse and THREATS TO SEEK OR demands <-- for custody or joint custody to pressure the partner to return or punish the partner for leaving.

(6) In child custody proceedings in which there are <-- allegations of domestic violence, expertise in domestic violence is required to determine if the allegations are valid.

(i) Ensure that in all cases and controversies (6) IT IS THE INTENT OF THE GENERAL ASSEMBLY TO ENSURE <-- THAT IN ALL CASES AND CONTROVERSIES before the courts involving questions of child custody, the health, safety and welfare of the child are protected and regarded as issues of paramount importance.

(ii) Rectify common past practices in this <-- Commonwealth that have been shown to work poorly for 20190SB0868PN2008 - 2 - children.

The definition of "abuse" in section 5322(a) of 20190SB0868PN1229 - 2 - Title 23 of the Pennsylvania Consolidated Statutes is amended and the subsection is amended by adding definitions to read:

<-- (i) The crime of harassment pursuant to 18 Pa.C.S.

CRIME OF STALKING PURSUANT <-- TO 18 PA.C.S.

§ 2709.1 (RELATING TO STALKING).

5 (relating to general <-- principles of justification) § 505 (RELATING TO USE OF FORCE <-- IN SELF-PROTECTION) by a party in response to abuse or domestic violence ABUSE by the other party.

<-- * * * "Health and safety of the child." The term includes, but is not limited to, the physical, emotional and psychological health, safety and well-being of the child.

<-- * * * 20190SB0868PN2008 - 3 - "Therapeutic setting." Any setting where a licensed <-- therapist, counselor, social worker or other appropriate professional guides or monitors the interaction between the party and child and ensures the health and safety of the child.

"NONPROFESSIONAL SUPERVISED PHYSICAL CUSTODY." CUSTODIAL <-- TIME DURING WHICH AN AGENCY OR AN ADULT, WHO IS NOT A LICENSED PROFESSIONAL DESIGNATED BY THE COURT OR AGREED UPON BY THE PARTIES, MONITORS THE INTERACTION BETWEEN THE CHILD AND THE INDIVIDUAL WITH THOSE RIGHTS.

"PROFESSIONAL SUPERVISED PHYSICAL CUSTODY." CUSTODIAL TIME DURING WHICH A LICENSED PROFESSIONAL MONITORS THE INTERACTION BETWEEN THE CHILD AND THE INDIVIDUAL WITH THOSE CUSTODY RIGHTS AND PROMOTES THE CHILD'S HEALTH AND SAFETY DURING THE INTERACTION.

Section 5323(e) of Title 23 is amended AND THE <-- SECTION IS AMENDED BY ADDING SUBSECTIONS to read:

* * * 20190SB0868PN1229 - 3 - (e) Safety conditions.--After considering the factors under [sectionsection [5328(a)(2)] 5328 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 [thatthat there is an ongoing]ongoing A HISTORY <-- OF ABUSE OF THE CHILD OR A HOUSEHOLD MEMBER BY A PARTY OR 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 household member who committed the abuse, the court shall include in the custody order safety conditions [designed], restrictions or safeguards AS necessary to protect the child or <-- 20190SB0868PN2008 - 4 - the abused party[.] and to minimize any risk of harm to the <-- child.

If the court orders a supervised physical custody arrangement, the supervised physical custody arrangement shall be conducted by a court-approved professional in a therapeutic setting and under conditions that ensure the health and safety of the child.,child. INCLUDING:

<-- (1) NONPROFESSIONAL SUPERVISED PHYSICAL CUSTODY.

(2) PROFESSIONAL SUPERVISED PHYSICAL CUSTODY.

(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 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.

COUNSELING MAY INCLUDE A PROGRAM OF TREATMENT OR INDIVIDUAL THERAPY DESIGNED TO REHABILITATE THE OFFENDING INDIVIDUAL, WHICH INCLUDES ISSUES REGARDING PHYSICAL OR SEXUAL ABUSE, DOMESTIC ABUSE, THE PSYCHOLOGY OF THE OFFENDER AND THE EFFECTS OF ABUSE ON THE VICTIM AND THE CHILD.

IF COUNSELING IS ORDERED THE COURT MAY REQUIRE AN EVALUATION BY THE APPOINTED QUALIFIED PROFESSIONAL TO DETERMINE WHETHER FURTHER COUNSELING OF THE OFFENDER IS NECESSARY.

(5) LIMITATIONS ON LEGAL CUSTODY.

(6) ANY OTHER SAFETY CONDITION, RESTRICTION, OR SAFEGUARD AS NECESSARY TO ENSURE THE HEALTH AND SAFETY OF THE CHILD.

(E.1) SUPERVISION.--IF A COURT FINDS BY A PREPONDERANCE OF 20190SB0868PN2008 - 5 - THE EVIDENCE THAT A PARTY HAS SUBJECTED THE CHILD OR ANY HOUSEHOLD MEMBER TO ABUSE, THE COURT SHALL BE PRESUMED TO ONLY 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 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.

(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 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 CAUSE PHYSICAL, EMOTIONAL OR PSYCHOLOGICAL HARM TO THE CHILD.

(1) Which party is more likely to ensure the health and 20190SB0868PN2008 - 6 - safety of the child.

No form of custody may be awarded to a <-- parent or party who jeopardizes the health and safety of the child by unreasonably placing the child at substantial risk of severe emotional distress or bodily injury.

[(1)] (1.1) Which party is more likely to encourage and <--20190SB0868PN1229 - 4 - permit frequent and continuing contact between the child and another party[.], except in cases of child abuse or domestic <-- violence or if the child's physical or emotional well-being is jeopardized by one of the parties.

(2) The present and past abuse committed by a party or member of the party's household.[,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.]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)(2.1) AThe historyinformation ofset abuseforth committedin bysection a5329.1(a) party(relating orto memberconsideration <-- of thechild party'sabuse householdand againstinvolvement anywith ofprotective theservices). following: