KAYDEN’S LAW: SEVEN NEW ENUMERATED OFFENSES ADDED

There have been significant changes to the custody statutes. When making a determination in custody, the court will consider whether either party (or member of their household) has enumerated offenses under Section 5329 of the custody statutes.  The court will determine to what extent the party (or household member) poses a risk to the child.  As a result of the amendments to the custody statute to focus on the safety of the child, the legislature has added seven new offenses to the list of enumerated offenses:

1. Simple Assault (18 Pa.C.S. Section 2701)

2. Recklessly Endangering Another Person (18 Pa.C.S. Section 2705)

3. Interference with Custody of Children (18 Pa.C.S. Section 2904)

4. Cruelty to Animals (18 Pa.C.S. Section 5533)

5. Relating to Aggravated Cruelty to Animals (18 Pa.C.S. Section 5534)

6. Relating to Animal Fighting (18 Pa.C.S. Section 5543)

7. Possession of Animal Fighting Paraphernalia (18 Pa.C.S. Section 5544)

A criminal conviction under Section 5329, is not, by itself, determine the outcome of a custody award.  The court must consider the totality of the circumstances when issuing a custody order.  

The amended rules will go into effect on August 13, 2024. To read all of the changes to the custody statutes, click HERE.

CHANGES TO SUPERVISED PHYSICAL CUSTODY IN ABUSE CASES

Pennsylvania legislature has made significant changes to the custody statutes as they pertain to safety of the child.  These changes were based on efforts related to a nation-wide campaig regarding Kayden’s Law. One of the largest changes is regarding supervised physical custody as it pertains to risk of abuse of the child.  

If a court finds by a preponderance (more likely than not) of the evidence that there is ongoing risk of abuse of the child, there is a rebuttable presumption that the court shall only allow supervised physical custody between the child and the party.  A rebuttable presumption means that the court will lean toward supervised physical custody, but a party or the parties may argue that or present evidence that supervised physical custody is not required to insure the safety of the child.  

When determining abuse, an “indicated” report from a child protective agency for physical or sexual abuse is a basis for a finding of abuse under the custody statutes, but only after a new (de novo) review of the circumstances in the finding.  An indicated report is not the only way to determine abuse.  

If the court decides to award supervised physical custody under this section, it shall favor professional supervised physical custody.  Professional supervised custody is “custodial time during which a professional, with education and training on the dynamics of domestic violence, sexual assault, child abuse, trauma and the impact of domestic violence children, oversees the interaction between the child and the individual with those custody rights and promotes the safety of the child during their interaction.”

However, the court can award non-professional supervised physical custody if the court determines that the professional supervised physical custody is not available within a reasonable distance of the parties or the court determines that the party requiring supervised physical custody is unable to pay for the professional services AND the court designates an adult to supervise the custodial visit.  This adult must appear in person before the court, sign an affidavit of accountability, and the court must make a finding, on the record, that the individual is capable of promoting the “safety of the child.” 

It’s important to note that “safety of the child” is a new definition in the revised custody statute.  “Safety of the child” includes, but is not limited to, the physical, emotional and psychological well-being the child. 

To read the full revised statutes, click HERE. You can also read more about Kayden and how her death after a judge allowed unsupervised visitation has spurned the changes in the custody statute.

Kayden's Law: Proposed Senate Bill Addressing Domestic Violence in Custody Matters

A new bill has been introduced on the Senate level. SB 868 focuses on the issues of domestic violence and its potential effect on children in child custody situations. Kayden, whose parents never married, lived with her mother and stepfather in Langhorne. She was visiting her father at his Manayunk home as part of a court-approved custody arrangement in August of last year when he fatally beat her with a 35-pound dumbbell, then hanged himself. Jeffrey Mancuso had not been violent with Kayden but had been abusive to others. Bucks County Judge Jeffrey Trauger was aware of Mancuso’s violent or aggressive behavior toward Kayden’s mother, his own mother, and other adults when he granted Mancuso unsupervised weekend visits with his daughter in May 2018.

Under the Kayden’s Law, a court would have to impose “safety conditions” to protect a child, including supervised custody visits in a “therapeutic setting” in cases in which a parent has a history of abuse. The measures would broaden the definition of abuse to include threatening behavior, such as harassment and stalking. And they would recommend education and training programs about child abuse and domestic violence for judges and others involved in custody matters.

The bill further provides 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; in Administrative Office of Pennsylvania Courts, providing for child abuse and domestic violence education and training program for judges and court personnel; and, in depositions and witnesses, further providing for rights and services.

This is a proposed bill at this time and will likely have significant revisions. However, if some version of it is implemented there is the potential for the change in law with Kayden’s Bill.  For information as to the proposed bill, visit the Pennsylvania General Assembly website at: www.legis.state.pa.us

https://www.legis.state.pa.us/CFDOCS/Legis/PN/Public/btCheck.cfm?txtType=PDF&sessYr=2019&sessInd=0&billBody=S&billTyp=B&billNbr=0868&pn=1229