Pennsylvania custody law hinges on one critical section: 23 Pa.C.S. §5328(a), a list of sixteen factors the decision-maker uses to determine custody arrangements. These factors range from the obvious— Which party is more likely to ensure the child’s safety— to the nuanced— The need for stability and continuity in the child’s education, family, and community life— to the outright obscure— Any other relevant factor. It is a long list, complicated further by the breadth of ground covered. These factors are, however, unified by the Best Interest of the Child (BIOC) standard.
Ultimately, a custody decision is not about which parent or guardian wants custody more. The purpose of that exhaustive list of factors is to ensure that no angle gets overlooked while determining what is best for the child or children involved. A parent who is capable of attending to the child’s emotional needs but cannot address their educational or medical needs may want very badly to have sole custody, but a decision-maker following the factors and the BIOC standard will have to consider those factors that weigh against the parent.
Earlier this year, those factors received an extra layer of protection when Governor Shapiro signed Senate Bill 55 into law. Commonly known as “Kayden’s Law,” the legislation has several significant effects.
It requires that a court consider a broader range of criminal history of the parents— where before, judges generally considered allegations of abuse and some criminal convictions, they now must also consider additional acts such as simple assault, reckless endangerment of another, and cruelty to animals. The presence of one or more of these convictions in the parent’s history can indicate an ongoing risk of abuse to the child. Where there is an ongoing risk of abuse, there is a rebuttable presumption that the court may only grant supervised physical custody to the party who poses the risk. The expanded list of qualifying convictions (located in 23 Pa.C.S. §5329(a)) increases those parties who will now have the burden of overcoming a presumption of supervised physical custody.
In addition— and perhaps more notably— Kayden’s Law also gives certain custody factors additional weight. Kayden’s Law strengthens those factors that emphasize the safety of the child, prioritizing them over others. Now, rather than balancing all factors equally, a decision-maker must give particular consideration to these factors: which party is more likely to ensure the safety of the child; the present and past abuse committed by members of the party’s household; criminal convictions of the parties and; violent or assaultive behavior committed by a party.
These new requirements are worthwhile assurances that custody deliberations will continue to focus on the children’s best interests. It is common practice in many legal processes to give uneven weight to different factors, and custody is not the right place for lax analysis.
Still, practitioners have reservations about these additions and amendments. The objections are not to the content of these new rules; rather, practitioners are concerned about the potential applications and effects.
Consider: two parents initiate divorce and custody proceedings for their child. Dad moved out of the state last year and has not seen much of the child since then. He does not live near family and school, and his area’s healthcare options are very limited. Mom stayed in the marital home with the child so the child could continue attending the same school, seeing the same doctors, and visiting with nearby family. However, Mom was convicted of simple assault five years ago. She has no other criminal history.
Mom and Dad are unsure how to divide custody, so they appear before a judge. The judge must consider Mom’s assault conviction— in fact, the judge has to begin with a presumption that Mom can only have supervised custody because of that conviction. Mom can either accept that decision or work to rebut the presumption. In both cases, Mom will be suspended from seeing the child until the judge decides whether to enforce supervised custody.
Although the safety of a child should be paramount in custody considerations, Kayden’s Law creates a risk of significant, debilitating, and long-felt effects that may be difficult to mitigate. Extended parent-child separations due to minor or outdated convictions may cause children irreversible trauma. A less-equipped parent may receive more custody than they are prepared for or than is beneficial for the child. It is even unclear how the law addresses convictions from before the law took effect. Prioritizing these safety factors cannot come at the price of disregarding other considerations, nor can it be done without nuance or case-specific deliberation. Certainly, Kayden’s Law fills a critical gap in the process of custody determination, one which will protect children from previously unnoticed risks. Now that it is law, practitioners must learn how to apply it appropriately.