CHAPTER 53 CUSTODY-- Sub-Chapter A - General Provisions
(provided by Divorce Source, Inc.)
Published 6.30.98
Section5301. Declaration of policy.
Section5302. Definitions.
Section5303. Award of custody, partial custody or visitation.
Section5304. Award of shared custody.
Section5305. Counseling.
Section5306. Plan for implementation of custody order.
Section5307. Denial of custody under agreement or plan.
Section5308. Removal of party or child from jurisdiction.
Section5309. Access to records and information.
Section5310. Modification of existing custody orders.
Section5311. When parent deceased.
Section5312. When parents' marriage is dissolved or parents are separated.
Section5313. When child has resided with grandparents.
Section5314. Exception for adopted children.
Section5301. Declaration of policy.
The General Assembly declares that it is the public policy of this Commonwealth, when in the best interest of the child, to assure a reasonable and continuing contact of the child with both parents after a separation or dissolution of the marriage and the sharing of the rights and responsibilities of child rearing by both parents and continuing contact of the child or children with grandparents when a parent is deceased, divorced or separated.
Section5302. Definitions.
The following words and phrases when used in this subchapter shall have the meanings given to them in this section unless the context clearly indicates otherwise:
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"Child." -
Any unemancipated person under 18 years of age.
"Legal custody." - The legal right to make major decisions affecting the best interest of a minor child, including, but not limited to, medical, religious and educational decisions.
"Partial custody." - The right to take possession of a child away from the custodial parent for a certain period of time.
"Physical custody." - The actual physical possession and control of a child.
"Shared custody." - An order awarding shared legal or shared physical custody, or both, of a child in such a way as to assure the child of frequent and continuing contact with and physical access to both parents.
"Visitation." - The right to visit a child. The term does not include the right to remove a child from the custodial parent's control.
(a) General rule.--In making an order for custody, partial custody or visitation to either parent, the court shall consider, among other factors, which parent is more likely to encourage, permit and allow frequent and continuing contact and physical access between the noncustodial parent and the child. In addition, the court shall consider each parent and adult household member's present and past violent or abusive conduct which may include, but is not limited to, abusive conduct as defined under the act of October 7, 1976 (P.L.1090, No.218), known as the Protection From Abuse Act.
(b) Consideration of criminal conviction.--If a parent has been convicted of or has pleaded guilty or no contest to an offense as set forth below, the court shall consider such criminal conduct and shall determine that the parent does not pose a threat of harm to the child before making an order of custody, partial custody or visitation to that parent:
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1.18 Pa.C.S. Ch. 25 (relating to criminal homicide);
2.18 Pa.C.S. Section 2901 (relating to kidnapping);
3.18 Pa.C.S. Section 2902 (relating to unlawful restraint);
4.18 Pa.C.S. Section 3121 (relating to rape);
5.18 Pa.C.S. Section 3122.1 (relating to statutory sexual assault);
6.18 Pa.C.S. Section 3123 (relating to involuntary deviate sexual intercourse);
7.18 Pa.C.S. Section 3124.1 (relating to sexual assault);
8.18 Pa.C.S. Section 3125 (relating to aggravated indecent assault);
9.18 Pa.C.S. Section 3126 (relating to indecent assault);
10.18 Pa.C.S. Section 3127 (relating to indecent exposure);
11.18 Pa.C.S. Section 4302 (relating to incest);
12.18 Pa.C.S. Section 4304 (relating to endangering welfare of children);
13.18 Pa.C.S. Section 5902(b) (relating to prostitution and related offenses); or
14.18 Pa.C.S. Section 6312 (relating to sexual abuse of children).
(d) Sole custody.--The court shall award sole custody when it is in the best interest of the child. [The act of October 7, 1976 (P.L.1090, No.218), known as the Protection From Abuse Act, referred to in subsec. (a), was repealed by the act of December 19, 1990 (P.L.1240, No.206). The subject matter is now contained in Chapter 61 of this title.]
Section 5304. Award of shared custody.
An order for shared custody may be awarded by the court when it is in the best interest of the child:
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1.upon application of one or both parents;
2.when the parties have agreed to an award of shared custody; or
3.in the discretion of the court.
(a) General rule.--The court may require the parents to attend counseling sessions and may consider the recommendations of the counselors prior to awarding sole or shared custody. These counseling sessions may include, but shall not be limited to, discussions of the responsibilities and decisionmaking arrangements involved in both sole and shared custody and the suitability of each arrangement to the capabilities of each parent or both parents.
(b) Temporary custody.--The court may temporarily award custody to either parent or both parents pending resolution of any counseling.
(c) Report.--The court may require the counselor to submit a report if the court desires and within such reasonable time as the court determines.
Section 5306. Plan for implementation of custody order.
The court, in its discretion, may require the parents to submit to the court a plan for the implementation of any custody order made under this subchapter. Upon the request of either parent or the court, the domestic relations section of the court or other party or agency approved by the court shall assist in the formulation and implementation of the plan.
Section 5307. Denial of custody under agreement or plan.
When the court declines to enter an order awarding custody either as agreed to by the parents or under the plan developed by the parents, the court shall state its reasons for denial on the record.
Section 5308. Removal of party or child from jurisdiction.
If either party intends to or does remove himself or the child from this Commonwealth after a custody order has been made, the court, on its own motion or upon motion of either party, may review the existing custody order.
Section 5309. Access to records and information.
(a) General rule.--Except as provided in subsections (b) and (c), each parent shall be provided access to all the medical, dental, religious or school records of the child, the residence address of the child and of the other parent and any other information that the court deems necessary.
(b) Court determination not to release information.--The court, in its discretion, may determine not to release any part or parts of the information in this section but in doing so must state its reason for denial on the record.
(c) Nondisclosure of confidential information.--The court shall not order that the address of a shelter for battered spouses and their dependent children or otherwise confidential information of a domestic violence counselor be disclosed to the defendant or his counsel or any party to the proceedings.
Section 5310. Modification of existing custody orders.
Any order for the custody of the child of a marriage entered by a court in this Commonwealth or any state may, subject to the jurisdictional requirements set forth in 42 Pa.C.S. SectionSection 5342 (relating to purposes and construction of subchapter) and 5344 (relating to jurisdiction), be modified at any time to an order of shared custody in accordance with this subchapter.
[42 Pa.C.S. SectionSection 5342 and 5344, referred to in this section, were repealed December 19, 1990, P.L.1240, No.206. The subject matter is now contained in sections 5342 and 5344 of this title 23, below.]
Section 5311. When parent deceased.
If a parent of an unmarried child is deceased, the parents or grandparents of the deceased parent may be granted reasonable partial custody or visitation rights, or both, to the unmarried child by the court upon a finding that partial custody or visitation rights, or both, would be in the best interest of the child and would not interfere with the parent-child relationship. The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application.
Section 5312. When parents' marriage is dissolved or parents are separated.
In all proceedings for dissolution, subsequent to the commencement of the proceeding and continuing thereafter or when parents have been separated for six months or more, the court may, upon application of the parent or grandparent of a party, grant reasonable partial custody or visitation rights, or both, to the unmarried child if it finds that visitation rights or partial custody, or both, would be in the best interest of the child and would not interfere with the parent-child relationship. The court shall consider the amount of personal contact between the parents or grandparents of the party and the child prior to the application.
Section 5313. When child has resided with grandparents.
If an unmarried child has resided with his grandparents or great-grandparents for a period of 12 months or more and is subsequently removed from the home by his parents, the grandparents or great-grandparents may petition the court for an order granting them reasonable partial custody or visitation rights, or both, to the child. The court shall grant the petition if it finds that visitation rights would be in the best interest of the child and would not interfere with the parent- child relationship.
Section 5314. Exception for adopted children.
Sections 5311 (relating to when parent deceased), 5312 (relating to when parents' marriage is dissolved or parents are separated) and 5313 (relating to when child has resided with grandparents) shall not apply if the child has been adopted by a person other than a stepparent or grandparent. Any visitation rights granted pursuant to this section prior to the adoption of the child shall be automatically terminated upon such adoption.
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