Allegations of criminal conduct must play a role in custody hearings

In Pennsylvania, the consequences of criminal charges or a conviction frequently extend beyond immediate and direct consequences in the criminal justice system.  As this blog has previously discussed, conviction for a sexual offense covered under Megan’s Law creates separate obligations to register and report normal life changes in employment, housing, and educational status to the state police.  Additionally, conviction for a simple assault can have serious repercussions years later under the federal Armed Career Criminal sentencing enhancement.  This blog addresses the impact of open criminal charges on custody disputes.

Chapter 25, Section 5303 provides that “the court shall consider whether the parent who is or has been charged with” certain enumerated offenses “poses a risk of harm to the child.”  Specifically, charges of

1) Homicide (18 Pa. C.S. 2501 et. seq.)

2) Aggravated Assault (18 Pa. C.S. 2702)

3) Terroristic Threats (18 Pa. C.S. 2706)

4) Stalking (18 Pa. C.S. 2709.1)

5) Kidnapping (18 Pa. C.S. 2901)

6) Unlawful Restraint (18 Pa. C.S. 2902)

7)False Imprisonment (18 Pa. C.S. 2903)

8 ) Rape (18 Pa. C.S. 3121)

9) Statutory Sexual Assault (18 Pa. C.S. 3122.1)

10) Involuntary Deviate Sexual Intercourse (18 Pa. C.S. 3123)

11) Sexual Assault (18 Pa. C.S. 3122.1)

12) Aggravated Indecent Assault (18 Pa. C.S. 3125)

13) Indecent Assault (18 Pa. C.S. 3126)

14) Indecent Exposure (18 Pa. C.S. 3127)

15) Arson (18 Pa. C.S. 3301)

16) Incest (18 Pa. C.S. 4302)

17) Endangering the Welfare of a Child (18 Pa. C.S. 4304)

18) Sexual Abuse of Children (18 Pa. C.S. 6312)

19) Contempt for Violation of Order or Agreement (18 Pa. C.S. 6114)

This law means that if a party to a custody dispute has been charged under any of these statutes, then the court is required to make a determination about the child’s safety with that party.  However, this law does not set out any bright line rule.  It is still up to the court to consider all the information it has regarding that party in determining what the best interests of the child require. From a practical standpoint, this law means that you need to make sure your attorney at the custody hearing has information about any open or previous charges, even where there was no conviction.  A well-informed and skillful attorney can neutralize the negative effects of this information on a custody decision by demonstrating the unfounded nature of the charges or by making clear to the court that any conduct related to those charges was completely separate from that parent’s ability to care for their child.

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