Monday, January 31, 2011
By Amaris Elliott-Engel, The Legal Intelligencer

Pennsylvania's child custody law is changing this month, bringing the state statute "into the 21st century" after a decade-long reform process. 

As many family lawyers are celebrating the codification of custody law, there are also concerns that some parts of the new framework could result in unfunded state mandates.

Montgomery County Common Pleas Judge Emanuel A. Bertin, chair of the Joint State Government Commission's advisory committee on domestic relations law, said the changes to the state's custody law were drafted by the committee more than a  decade ago.

Legislation was originally introduced by state Sen. Stewart Greenleaf, R-Montgomery, but the legislation never advanced to the governor's desk until 2010, according to interviews. The legislation received new life when former state Rep. Kathy Manderino, D-Philadelphia, became interested in sponsoring changes to Pennsylvania's custody regime.

Former Gov. Ed Rendell signed the law in November.

The custody law goes into effect this month for all new custody actions, while the old law governs previously filed cases.

"This brings custody law into the 21st century," said Carol Behers, an attorney with Pittsburgh family law boutique Raphael Ramsden & Behers and chair of the Pennsylvania Bar Association's family law section from 2008 to 2009. The new custody law will provide consistency around the state, she said.

"There definitely seems to be a lot of variation around the state," and consistency will provide "a sense of uniformity and predictability," she said.

Mark R. Alberts, a principal with Gentile Horoho & Avalli in Pittsburgh and chair of the Allegheny County Bar Association's family law section, said, the "best interests [of children] is still the polestar of custody determinations."

But the new law spells out 16 factors to be weighed in making custody decisions and emphasizes what can and can't be considered in making those decisions, Mr. Alberts said.

Codification
 
The law also says custody decisions must be gender-neutral. Mr. Alberts said that was an important codification of case law because the old statutory law "didn't stop people from feeling that it wasn't [gender-neutral], that there was   somehow inherent bias in the process of custody determinations that tipped the scale in favor of moms or, in some circumstances, in favor of fathers."

Michael E. Bertin, a partner at Obermayer Rebmann Maxwell & Hippel who focuses on family law, said the law now requires that judges give justification for their custody decisions either orally on the record or in written form. That  requirement may help litigants understand better why the judges reach their decisions, both said. (Michael Bertin is the son of Judge Bertin.)

Another advance in the law is the ability of parents who are still residing in the same residence to petition for custody before leaving the residence.

Some counties "don't accept the filing" before you leave the residence, Mr. Bertin said. "Because of backlogs, you don't get into court for some time, and then a status quo starts to form and it might not be best for the child. Now, if you can petition beforehand and get something in place, that alleviates a person  just trying to grab a child."

Megan E. Watson, a partner with boutique family law firm Berner Klaw & Watson in Philadelphia, said the new law had much more extensive provisions about appointing guardians ad litem to represent children's best interests.

Courts don't have time to obtain that information, so the more extensive deployment of this optional part of the law would help the courts, she said.

Consternation
 
While many aspects of the custody law are being welcomed by the state's family bar, there is some concern in the Philadelphia family bar that a couple of provisions of the law will lead to problems.

One provision raising concern is that the new law is expanding the number of crimes that trigger a mandatory evaluation of custody petitioners to include crimes such as driving under the influence of alcohol or controlled substances.

The law also requires that the criminal history of the household members living with custody petitioners must be considered. Petitioners and householders must be evaluated to ensure they do not pose a threat of harm to the child.

Concerns were raised at a recent Philadelphia Bar Association meeting that there are not good instruments in place to evaluate whether someone with a criminal history is a threat to children; that sometimes the person in a child's life who is the best person to take care of the child is someone with a criminal  conviction; and that the law seems to bar judges from entering custody orders  until the evaluations are done.

Ms. Watson said the concerns with these provisions are the practical hurdles of how a court is supposed to find out who a petitioner's household members are; how the criminal histories are supposed to be accessed nationally when there is
  no ability in the court to check federal crime databases; and how the evaluations are supposed be paid for in the strapped 1st Judicial District.

 "That is a huge deal in Philadelphia because we just don't have the money to do that," Ms. Watson said.

Read more: http://www.post-gazette.com/pg/11031/1121174-499.stm#ixzz1WCuXoZJi