In April, SB 1167 was passed, which amends the new Custody Act that was passed last year. As practitioners will recall, sweeping changes were made to Pennsylvania's child custody laws when the new Custody Act became effective on Jan. 24, 2011. Like any new law, debate was sparked over numerous provisions contained in the new Custody Act.

Specifically, a hot-button issue focused on 23 Pa. C.S.A. §5329(c). Section 5329 pertains to the consideration of criminal convictions in custody actions. Subsection (a) of Section 5329 enumerates a list of offenses that the court shall consider when determining whether a party or household member poses a threat of harm to the child "before making any order of custody." Prior to the changes to the statute in April discussed below in this article, Subsection (c), titled "Initial Evaluation," provided: "The court shall provide for an evaluation to determine whether: (1) the party or household member who committed an offense under Subsection (a) [enumerated offenses] poses a threat to the child; and (2) counseling is necessary for that party or household member."

In reading the provision in Subsection (a) together with Subsection (c), the debate was whether an order could be entered by the court prior to an evaluation occurring. To complicate matters, a question arose as to who conducts the evaluation and what type of an evaluation was required. One side of the argument was that no custody order could be entered if a litigant or household member committed an enumerated offense listed under Section 5329(a) without an evaluation being conducted of that individual by a mental health professional. The concern related to this argument was that a delay would occur as well as the parties incurring great costs associated with the evaluation.

The other side of the argument was that the trial court was required to make a cursory evaluation and if the court deemed that a more detailed evaluation by a professional was needed the court could order same. The latter interpretation gives the court more discretion and is appealing in situations where a conviction occurred many years ago and was an isolated incident. Because of the multiple interpretations of 5329, many counties followed the section differently.

In 2011, proposed Rules of Civil Procedure pertaining to child custody were circulated for comment among practitioners. Contained therein was a rule that provided guidance as to the application of Section 5329. To date, the proposed rules have not been promulgated.

SB 1167 amends Section 5329 in a manner similar to the language contained in the proposed rules. The effective date of SB 1167 was June 11. Under SB 1167, Subsection (c) under Section 5329, has been rewritten and provides as follows: "At the initial in-person contact with the court, the judge, conference officer or other appointed individual shall perform an initial evaluation to determine whether the party or household member who committed an offense under Subsection (a) poses a threat to the child and whether counseling is necessary. The initial evaluation shall not be conducted by a mental health professional. After the initial evaluation, the court may order further evaluation or counseling by a mental health professional if the court determines it is necessary."

Many in the bar and bench have welcomed the amendment, because it settles the issue of whether the court may conduct an initial evaluation. However, like many new laws, new debates have arisen from this new law. The unrest surrounds the words "at the initial in-person contact with court" and "or other appointed individual." The concern appears to stem largely from practitioners in the larger counties of the state.

For example, in Philadelphia County, the majority of family law cases are pro se cases where there are no attorneys representing the litigants. In such an instance, the initial in-person contact with the court is not with a master or a judge, but rather with the customer service clerk or intake unit. Some practitioners are concerned as to whom the "other appointed individual" will be.

Some feel that only a judge should be able to make the initial evaluation. Others believe that a master in addition to a judge should be able to perform the initial evaluation and do not believe that people such as intake personnel should be able to make these judgment calls. It is to be seen how the administrative judges in the counties devise their systems regarding the initial evaluation. However, it is clear, by reading the statute, that the case will not be delayed and sent to a mental health professional initially, as the court will perform the initial evaluation.

SB 1167 also tweaked the military code regarding child custody proceedings during military deployment, though those changes are not addressed in this article.

It appears that the most recent changes to the custody laws pursuant to SB 1167 have remedied some issues that arose with the passage of the new Custody Act a year ago. As Pennsylvania child custody laws are ever-evolving, it is hoped that the case law in the future and the anticipated Rules of Civil Procedure pertaining to child custody will continue to refine the law and the procedure and further the best interests of the child, which is the standard in all Pennsylvania child custody cases.

Michael E. Bertin is a partner at the Philadelphia law firm of Obermayer Rebmann Maxwell & Hippel. Bertin is co-author of the book Pennsylvania Child Custody Law, Practice and Procedure. Bertin is chair-elect of the family law section of the Philadelphia Bar Association, co-chairman of its custody committee and a past member of council and the executive committee of the family law section of the Pennsylvania Bar Association.
This article is reprinted with permission from the June 14, 2012, issue of The Legal Intelligencer. © 2012 ALM Media LLC. Further duplication without permission is prohibited. All rights reserved.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.