As a family law practitioner, I have seen several iterations of what the Courts and legislators find to be important regarding the custody of children. Before 2011, the case law regarding custody focused on this basic premise: what is in the best interest of the minor child? As you may imagine, that was a broad mandate that allowed into consideration almost anything the attorneys or the judge found to be relevant.
In January 2011, the legislature enacted a new law that provided specific factors that the Court must consider when making a custody determination. See Pa. C.S. § 5328(a). There were 16 factors that the Court was directed to address or note that did not apply to the case.
In addition to these factors, the Court required each party in every custody case to complete a criminal history affidavit. The affidavit included a list of 31 crimes. Each party was required to indicate if they or any household member was convicted of a crime on the list, the date of conviction, and the sentence. As you may imagine, the list of crimes included violent crimes, crimes of a sexual nature, crimes involving children, and crimes involving drugs and alcohol. The goal of the affidavit was to assure the Court was aware of any criminal activity for all adults residing with children. The Court was then free to use its discretion regarding the impact of the disclosures made on the affidavit.
Then came the tragic story of Kayden Mancuso.
Kayden Mancuso, age 6, was the subject of custody litigation in Bucks County. When her parents separated, her Father filed for custody. Father had a history of violence, drug and alcohol abuse, and suicidal ideation, and Kayden was reportedly scared of him. The Court ordered a psychiatric evaluation which noted that Father suffered from a number of mental health issues. The Court further ordered a custody evaluation, which recommended that the Father should only have supervised time with Kayden until he received mental health treatment. Despite that recommendation, the Court entered an order providing Father with unsupervised weekends, with only a recommendation for mental health treatment.
On August 4, 2018 Kayden went to spend the weekend with her Father. Sadly, Kayden would never return from that visit. Her Father killed her and then killed himself.
After Kayden’s murder, her Mother began working to add additional protections to the current custody laws. On April 15, 2024 the legislation to be known as Kayden’s Law was signed and took effect 120 days later. Kayden’s Law now amends multiple sections of the law regarding custody.
Changes were made to the criminal history affidavit to include additional violent crimes, as well as crimes involving cruelty to animals. Changes were also made to the custody factors. The factors now direct that the Court give substantial weighted consideration to factors which affect the safety of the child. The new factors include, inter alia:
2.1 considerations of child abuse and involvement with protective services;
2.2 violent/assaultive behavior committed by a party;
2.3 which party is more likely to encourage contact with the other party, if contact is consistent with the safety needs of the child.
Additionally, while factor 8 previously addressed attempts to turn the child against the other party, it has been amended to clarify that party A’s reasonable concern for the safety of the child shall not be considered an attempt to turn the child against party B, and a child’s deficient/negative relationship with party B shall not be presumed to be caused by party A.
Finally, if the Court finds by a preponderance of the evidence that there is an ongoing risk of abuse, there shall be a rebuttable presumption to allow only supervised physical custody between the minor child and the abusive party. Further, the Court shall favor a professional supervisor for physical custody.
This is a huge change which we are still working through. Who will provide professional supervision? Who will pay for it? What if no one is available?
While it is clear that the new legislation was borne out of a real tragedy and attempt to assure all children are safe during custodial visits, only time will tell if these changes will work as intended.
