| HOUSE AMENDED |
| PRIOR PRINTER'S NOS. 1399, 1604 | PRINTER'S NO. 1947 |
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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| SENATE BILL |
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| 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 |
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| AS AMENDED ON SECOND CONSIDERATION, HOUSE OF REPRESENTATIVES, FEBRUARY 7, 2012 |
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| AN ACT |
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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 |
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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 |
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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 |
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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 |
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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. |
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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 |
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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 |
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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. |
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