2010 Pennsylvania Code
Title 23 - DOMESTIC RELATIONS
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 assault); (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 assault); (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 children). (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 expeditiously. (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 assault); (iii) 18 Pa.C.S. § 2706 (relating to terroristic threats); (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 imprisonment); (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. (b.2). 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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