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.

Gag Orders in Custody Cases: Is It Your Right to Speak to the Media?

In a child custody case, do the parents have the right to talk to the media? Is that right protected by the First and Fourteenth Amendments to the United States Constitution and Article I, Section 7 of the Pennsylvania Constitution? These are the big questions that the Pennsylvania Supreme Court will be considering. The Supreme Court has agreed to hear a case of a mother and her attorneys who were subjected to a gag order for talking to the media about her child custody battle, in which she accused the father of sexual abuse of the child.

In this case, the mother’s attorney held a press conference in which he disclosed the identity of the mother and restated the child’s in-court testimony, which included allegations of sexual abuse by the father. Additional sectors of the media picked up on the story. Father then filed a motion for sanctions against the mother and her attorneys. As part of his motion, father requested that all documents relating to the case be removed from public access. While the Court denied the father’s motion for sanctions, the Court did prohibit the mother and her attorneys from speaking publicly about the case in any way that could cause the child to be identified. 

Mother asserted that her free speech rights have been violated by the gag order.  The trial court considered the following when issuing its decision as to the speech of the mother and her attorneys: 

(1) tended to identify child; 

(2) was harmful to child; 

(3) whether child’s right “to be free from undue scrutiny, ridicule, and scorn” outweighed the right of mother and her attorneys to engage in public discourse.

The trial court also noted that the child attends a school “where teachers, parents and students are likely to know each other and that the identification of a parent would naturally identify the child.”

The Superior Court noted that the trial court’s order is not concerned with the content of mother and her attorneys’ speech, but with the target of the speech (the child). The court seeks to protect the child’s identity and privacy. It is the identification of child that triggers the application of the gag order. The Superior Court also noted that the mother’s unsubstantiated allegation of sexual abuse by the father warrants confidentiality of the proceedings and that the child has suffered emotional trauma because of the strife between the parents. 

According to the court, the gag order does not prevent mother and her attorneys from speaking publicly about child abuse and parental alienation generally. The order limits mother and her attorneys from communicating anything that would tend to identify and harm child. Additionally, the order does not bar the media from any of the proceedings in the case, nor does it prohibit the media from reporting on the matter. 

What does this mean for you? 

Be careful of your use of media of any type when involved in a child custody matter. If you have questions regarding this very sensitive issue and the use of media, call Kinchloe Law at 215-301-9783 so that we can assist you in the assessment of your current situation and to discuss your options.