Bill Text: PA SB1167 | 2011-2012 | Regular Session | Amended


Bill Title: Further providing for consideration of criminal conviction, for modification of existing orders and for child custody proceeding during military deployment; and providing for expedited or electronic hearing.

Status: (Passed) 2012-04-12 - Act No. 32 [SB1167 Detail]

Download: Pennsylvania-2011-SB1167-Amended.html

HOUSE AMENDED

 

PRIOR PRINTER'S NOS. 1399, 1604

PRINTER'S NO.  1947

  

THE GENERAL ASSEMBLY OF PENNSYLVANIA

  

SENATE BILL

 

No.

1167

Session of

2011

  

  

INTRODUCED BY BAKER, SOLOBAY, BRUBAKER, RAFFERTY, FOLMER, GORDNER, GREENLEAF, HUGHES, COSTA, MENSCH, ERICKSON, ORIE, SCHWANK, TARTAGLIONE, TOMLINSON, WAUGH, WILLIAMS, YUDICHAK, FONTANA, BOSCOLA, FARNESE, BROWNE, FERLO AND ROBBINS, JUNE 21, 2011

  

  

AS AMENDED ON SECOND CONSIDERATION, HOUSE OF REPRESENTATIVES, FEBRUARY 7, 2012   

  

  

  

AN ACT

  

1

Amending Titles 23 (Domestic Relations) and 51 (Military

2

Affairs) of the Pennsylvania Consolidated Statutes, further

3

providing for consideration of criminal conviction, for

<--

4

modification of existing orders and for child custody

5

proceeding during military deployment; and providing for

6

assignment of custody rights during military deployment and 

<--

7

expedited or electronic hearing.

8

The General Assembly of the Commonwealth of Pennsylvania

9

hereby enacts as follows:

10

Section 1.  Section 5338 of Title 23 of the Pennsylvania

<--

11

Consolidated Statutes, is amended to read:

12

Section 1.  Sections 5329(c) and 5338 of Title 23 of the

<--

13

Pennsylvania Consolidated Statutes are amended to read:

14

§ 5329.  Consideration of criminal conviction.

15

* * *

16

(c)  Initial evaluation.--[The court shall provide for an

17

evaluation to determine whether:

18

(1)  the party or household member who committed an

 


1

offense under subsection (a) poses a threat to the child; and

2

(2)  counseling is necessary for that party or household

3

member.] At the initial in-person contact with the court, the

4

judge, conference officer or other appointed individual shall

5

perform an initial evaluation to determine whether the party

6

or household member who committed an offense under subsection

7

(a) poses a threat to the child and whether counseling is

8

necessary. The initial evaluation shall not be conducted by a

9

mental health professional. After the initial evaluation, the

10

court may order further evaluation or counseling by a mental

11

health professional if the court determines it is necessary.

12

* * *

13

§ 5338.  Modification of existing order.

14

(a)  Best interest of the child.--Upon petition, a court may

15

modify a custody order to serve the best interest of the child.

16

(b)  Applicability.--[This] Except as provided in 51 Pa.C.S.

17

§§ 4109 (relating to child custody proceedings during military

<--

18

deployment) and 4110 (relating to assignment of custody rights

19

during military deployment) § 4109 (relating to child custody

<--

20

proceedings during military deployment), this section shall

21

apply to any custody order entered by a court of this

22

Commonwealth or any other state subject to the jurisdictional

23

requirements set forth in Chapter 54 (relating to uniform child

24

custody jurisdiction and enforcement).

25

Section 2.  Section 4109(d) 4109 of Title 51 is amended to

<--

26

read:

27

§ 4109.  Child custody proceedings during military deployment.

28

* * *

<--

29

(a)  Restriction on change of custody.--If a petition for

<--

30

change of custody of a child of an eligible servicemember is

- 2 -

 


1

filed with any court in this Commonwealth while the eligible

2

servicemember is deployed in support of a contingency operation,

3

no court may enter an order modifying or amending any previous

4

judgment or order, or issue a new order, that changes the

5

custody arrangement for that child that existed as of the date

6

of the deployment of the eligible servicemember, except that a

7

court may enter a temporary custody order if it is in the best

8

interest of the child.

9

(a.1)  Temporary assignment to family members.--If an

10

eligible servicemember has received notice of deployment in

11

support of a contingency operation, a court may issue a

12

temporary order to an eligible servicemember who has rights to a

13

child under 23 Pa.C.S. § 5323 (relating to award of custody) or

14

former 23 Pa.C.S. Ch. 53 Subch. A (relating to general

15

provisions), including a temporary order to temporarily assign

16

custody rights to family members of the servicemember. In the

17

case of temporary assignment of rights to family members of the

18

servicemember, the following shall apply:

19

(1)  The servicemember may petition the court for a

20

temporary order to temporarily assign custody rights to

21

family members of the servicemember. The servicemember shall

22

be joined in the petition by the family members to whom the

23

servicemember is seeking to assign temporary custody rights.

24

The petition shall include a proposed revised custody

25

schedule for care of the child by the family members. The

26

proposed revised custody schedule may not include custody

27

rights which exceed the rights granted to a servicemember set

28

forth in the order in effect at the time of the filing of the

29

petition to grant temporary custody rights to family members.

30

(2)  The court may issue a temporary order with a revised

- 3 -

 


1

custody schedule as proposed by the servicemember and the

2

family members or another revised custody schedule as the

3

court deems appropriate, if the court finds that a temporary

4

assignment of custody rights to family members of the

5

servicemember is in the best interest of the child. In no

6

case shall a temporary order granting custody rights to the

7

family members of a servicemember exceed the custody rights

8

granted to the servicemember set forth in the order in effect

9

at the time of the filing of the petition to assign temporary

10

custody rights to family members.

11

In the case of any other temporary order issued under this

12

subsection, the court may issue a temporary order if it is in

13

the best interest of the child.

14

(b)  Completion of deployment.--In any temporary custody

15

order entered under subsection (a) or (a.1), a court shall

16

require that, upon the return of the eligible servicemember from

17

deployment in support of a contingency operation, the custody

18

order that was in effect immediately preceding the date of the

19

deployment of the eligible servicemember is reinstated.

20

(c)  Exclusion of military service from determination of

21

child's best interest.--If a petition for the change of custody

22

of the child of an eligible servicemember who was deployed in

23

support of a contingency operation is filed after the end of the

24

deployment, no court may consider the absence of the eligible

25

servicemember by reason of that deployment in determining the

26

best interest of the child.

27

(d)  Failure to appear due to military deployment.--The

28

failure of an eligible servicemember to appear in court due to

29

deployment in support of a contingency operation shall not, in

30

and of itself, be sufficient to justify a modification of a

- 4 -

 


1

custody [or visitation] order if the reason for the failure to

2

appear is the eligible servicemember's active duty in support of

3

a contingency operation.

4

* * *

<--

5

(e)  Relationship to other laws.--Notwithstanding any other

<--

6

provision of law, the provisions of this section shall be

7

applied with regard to child custody issues related to eligible

8

servicemembers deployed in support of contingency operations.

9

(f)  Definitions.--As used in this section, the following

10

words and phrases shall have the meanings given to them in this

11

subsection:

12

"Contingency operation."  A military operation that:

13

(1)  is designated by the Secretary of Defense as an

14

operation in which members of the armed forces are or may

15

become involved in military actions, operations or

16

hostilities against an enemy of the United States or against

17

an opposing military force; or

18

(2)  results in the call or order to, or retention on,

19

active duty of members of the uniformed services under 10

20

U.S.C. § 688 (relating to retired members: authority to order

21

to active duty; duties), 12301(a) (relating to reserve

22

components generally), 12302 (relating to Ready Reserve),

23

12304 (relating to Selected Reserve and certain Individual

24

Ready Reserve members; order to active duty other than during

25

war or national emergency), 12305 (relating to authority of

26

President to suspend certain laws relating to promotion,

27

retirement, and separation) or 12406 (relating to National

28

Guard in Federal service: call) or any other provision of 10

29

U.S.C. during a war or during a national emergency declared

30

by the President or Congress.

- 5 -

 


1

"Eligible servicemember."  A member of the Pennsylvania

2

National Guard or a member of an active or reserve component of

3

the Armed Forces of the United States who is serving on active

4

duty, other than active duty for training, for a period of 30 or

5

more consecutive days, in support of a contingency operation.

6

"Family members."  As defined in 23 Pa.C.S. § 6303 (relating

7

to definitions).

8

Section 3.  Title 51 is amended by adding sections a section 

<--

9

to read:

10

§ 4110.  Assignment of custody rights during military

<--

11

deployment.

12

(a)  Petition.--If an eligible servicemember has received

13

notice of deployment in support of a contingency operation, the

14

servicemember may petition the court for a modification to an

15

order granting the servicemember custody with a child under 23

16

Pa.C.S. § 5323 (relating to award of custody). The modification

17

may include a temporary assignment of the eligible

18

servicemember's custody rights to one or more family members as

19

defined in 23 Pa.C.S. § 6303 (relating to definitions). The

20

eligible servicemember shall be joined in the petition by the

21

relatives to whom the servicemember is seeking to assign these

22

rights. The petition shall include a proposed custody schedule

23

with the family members and the schedule shall not exceed the

24

time granted to the eligible servicemember prior to the time of

25

filing the petition.

26

(b)  Order.--The court may grant the eligible servicemember's

27

request for assignment of custody rights if the court finds that

28

custody on terms as the court deems appropriate would be in the

29

best interest of the child. An order granting assignment of

30

custody rights pursuant to this section shall terminate

- 6 -

 


1

immediately upon the termination of the eligible servicemember's

2

deployment.

3

(c)  Definitions.--As used in this section, the terms

4

"contingency operation" and "eligible servicemember" shall have

5

the same meanings given to them under section 4109 (relating to

6

child custody proceedings during military deployment).

7

§ 4111.  Expedited or electronic hearing.

8

(a)  Expedited hearing.--Upon motion of a parent eligible

<--

9

servicemember who has received notice of deployment in support

10

of a contingency operation, the court shall, for good cause

11

shown, hold an expedited hearing in custody matters instituted

12

under sections section 4109 (relating to child custody

<--

13

proceedings during military deployment) and 4110 (relating to

<--

14

assignment of custody rights during military deployment) when

15

the military duties of the parent eligible servicemember have a

<--

16

material effect on the parent's eligible servicemember's 

<--

17

ability, or anticipated ability, to appear in person at a

18

regularly scheduled hearing.

19

(b)  Electronic hearing.--Upon motion of a parent eligible

<--

20

servicemember who has received military temporary duty,

<--

21

deployment or mobilization orders notice of deployment in

<--

22

support of a contingency operation, the court shall, upon

23

reasonable advance notice and for good cause shown, allow the

24

parent eligible servicemember to present testimony and evidence

<--

25

by electronic means in custody matters instituted under sections 

<--

26

section 4109 and 4110 when the military duties of the parent 

<--

27

eligible servicemember have a material effect on the parent's 

<--

28

eligible servicemember's ability to appear in person at a

<--

29

regularly scheduled hearing. The term "electronic means"

<--

30

includes communication by telephone, video teleconference or the

- 7 -

 


1

Internet.

2

(c)  Definitions.--As used in this section, the following

<--

3

words and phrases shall have the meanings given to them in this

4

subsection unless the context clearly indicates otherwise:

5

"Contingency operation."  As defined in section 4109

6

(relating to child custody proceedings during military

7

deployment).

8

"Electronic means."  Includes communication by telephone,

9

video conference or the Internet.

10

"Eligible servicemember."  As defined in section 4109

11

(relating to child custody proceedings during military

12

deployment).

13

"Matter."  As defined in 42 Pa.C.S. § 102 (relating to

14

definitions).

15

Section 4.  This act shall take effect in 60 days.

- 8 -

 


feedback