2010 Pennsylvania Code
Chapter 53 - Custody
5303 - Award of custody, partial custody or visitation.

     § 5303.  Award of custody, partial custody or visitation.
        (a)  General rule.--
            (1)  In making an order for custody or partial custody,
        the court shall consider the preference of the child as well
        as any other factor which legitimately impacts the child's
        physical, intellectual and emotional well-being.
            (2)  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.
            (3)  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:
            (1)  18 Pa.C.S. Ch. 25 (relating to criminal homicide);
            (2)  18 Pa.C.S. § 2901 (relating to kidnapping);
            (3)  18 Pa.C.S. § 2902 (relating to unlawful restraint);
            (4)  18 Pa.C.S. § 3121 (relating to rape);
            (5)  18 Pa.C.S. § 3122.1 (relating to statutory sexual
            (6)  18 Pa.C.S. § 3123 (relating to involuntary deviate
        sexual intercourse);
            (7)  18 Pa.C.S. § 3124.1 (relating to sexual assault);
            (8)  18 Pa.C.S. § 3125 (relating to aggravated indecent
            (9)  18 Pa.C.S. § 3126 (relating to indecent assault);
            (10)  18 Pa.C.S. § 3127 (relating to indecent exposure);
            (11)  18 Pa.C.S. § 4302 (relating to incest);
            (12)  18 Pa.C.S. § 4304 (relating to endangering welfare
        of children);
            (13)  18 Pa.C.S. § 5902(b) (relating to prostitution and
        related offenses); or
            (14)  18 Pa.C.S. § 6312 (relating to sexual abuse of
        (b.1)  Consideration of criminal charge.--
            (1)  A parent who has obtained information under 42
        Pa.C.S. § 1904 (relating to availability of criminal charge
        information in child custody proceedings) of the charge filed
        against the other parent for an offense listed in paragraph
        (2) may move for a temporary custody order or to modify an
        existing custody, partial custody or visitation order. The
        temporary custody or modification hearing shall be scheduled
            (2)  In evaluating any request for temporary custody or
        modification of a custody, partial custody or visitation
        order, the court shall consider whether the parent who is or
        has been charged with an offense listed below poses a risk of
        harm to the child:
                (i)  18 Pa.C.S. Ch. 25;
                (ii)  18 Pa.C.S. § 2702 (relating to aggravated
                (iii)  18 Pa.C.S. § 2706 (relating to terroristic
                (iv)  18 Pa.C.S. § 2709.1 (relating to stalking);
                (v)  18 Pa.C.S. § 2901;
                (vi)  18 Pa.C.S. § 2902;
                (vii)  18 Pa.C.S. § 2903 (relating to false
                (viii)  18 Pa.C.S. § 3121;
                (ix)  18 Pa.C.S. § 3122.1;
                (x)  18 Pa.C.S. § 3123;
                (xi)  18 Pa.C.S. § 3124.1;
                (xii)  18 Pa.C.S. § 3125;
                (xiii)  18 Pa.C.S. § 3126;
                (xiv)  18 Pa.C.S. § 3127;
                (xv)  18 Pa.C.S. § 3301 (relating to arson and
            related offenses);
                (xvi)  18 Pa.C.S. § 4302;
                (xvii)  18 Pa.C.S. § 4304;
                (xviii)  18 Pa.C.S. § 6312; and
                (xix)  23 Pa.C.S. § 6114 (relating to contempt for
            violation of order or agreement).
            (3)  Failure to apply for information under 42 Pa.C.S. §
        1904 or to act under this subsection shall not prejudice any
        parent in a custody or visitation proceeding.
        (b.2)  Parent convicted of murder.--No court shall award
     custody, partial custody or visitation to a parent who has been
     convicted of murder under 18 Pa.C.S. § 2502(a) (relating to
     murder of the first degree) of the other parent of the child who
     is the subject of the order, unless the child is of suitable age
     and consents to the order.
        (c)  Counseling.--In making a determination to award custody,
     partial custody or visitation pursuant to subsection (b), the
     court shall appoint a qualified professional to provide
     counseling to an offending parent described in subsection (b)
     and shall take testimony from that professional regarding the
     provision of such counseling prior to issuing any order of
     custody, partial custody or visitation. Counseling, required in
     accordance with this subsection, shall include a program of
     treatment or individual therapy designed to rehabilitate a
     parent which addresses, but is not limited to, issues regarding
     physical and sexual abuse, domestic violence, the psychology of
     the offender and the effects of abuse on the victim. If the
     court awards custody, partial custody or visitation to an
     offending parent described in subsection (b), the court may
     require subsequent periodic counseling and reports on the
     rehabilitation of the offending parent and the well-being of the
     child following an order relating to custody, partial custody or
     visitation. If, upon review of a subsequent report or reports,
     the court determines that the offending parent poses a threat of
     harm to the child, the court may schedule a hearing and modify
     the order of custody or visitation to protect the well-being of
     the child.
        (d)  Sole custody.--The court shall award sole custody when
     it is in the best interest of the child.
     (June 13, 1990, P.L.230, No.51, eff. 60 days; Mar. 31, 1995, 1st
     Sp.Sess., P.L.985, No.10, eff. 60 days; Oct. 7, 1996, P.L.691,
     No.119, eff. 120 days; Dec. 16, 1997, P.L.549, No.58, eff. Jan.
     1, 1998; Dec. 9, 2002, P.L.1759, No.218, eff. 60 days)

        2002 Amendment.  Act 218 amended subsec. (b.1)(2).
        1997 Amendment.  Act 58 amended subsec. (a) and added subsec.
        1996 Amendment.  Act 119 added subsec. (b.1).
        1995 Amendment.  Act 10, 1st Sp.Sess., amended subsec. (b).
        1990 Amendment.  Section 2 of Act 51 provided that Act 51
     shall apply to actions under Chapter 53 which are commenced on
     or after the effective date of Act 51 regardless of when the
     abuse or offense took place.
        References in Text.  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.
        Cross References.  Section 5303 is referred to in section
     1904 of Title 42 (Judiciary and Judicial Procedure).

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