Section 5329 covers the use of criminal convictions in Pennsylvania
custody cases. Section 5329 lists those criminal convictions (and "no contests") that
must be considered by the court in a custody proceeding and mandates a threat/counseling
evaluation of the offender.
A variety of crimes fall under Section 5329. These include driving under
the influence (DUI), prostitution, violations of the controlled substances
act, endangering the welfare of a minor, providing pornography to minors,
murder, aggravated assault, terroristic threats, stalking, kidnapping,
unlawful restraint, false imprisonment, luring a child, various sexual
offenses (involving adults or children) and others.
Section 5329 applies when a party (or a member of their household) has
one of the listed criminal convictions and seeks
any form of custody. In such a case, the court
must first determine that the convicted person poses no threat of harm to the
child before providing any custody to that parent. The court must also
determine whether counseling is necessary.
If a Philadelphia family court awards
custody to a party with such a conviction, the court may also order that further
evaluation, counseling or review occur even after the order. If the "after
order" review finds that a child is under threat, then the court
may schedule a hearing to modify the custody order. The court may also
order a party to pay all or part of the costs of the counseling and evaluation.
Note that convictions for disorderly conduct, simple assault, traffic
charges (other than impaired driving) and many other offenses do not fall
under Section 5329. As a result, the custody court can overlook such offenses.
But the "best interests" of the child remains the standard for custody cases in Philadelphia
and throughout Pennsylvania. So, criminal convictions not covered by 5329
can be considered by the court if they are relevant to the best interests
of the child. An example would be a traffic or disorderly conduct conviction
for an incident that put the child in harms way. Section 5329 tells the
court which criminal convictions it
must consider in awarding custody. But it does not prevent the court from considering
convictions outside of 5329 if they relate to the best interests of the child.
Also note that a Protection from Abuse Order is not a criminal conviction
at all and so does not fall under Section 5329. However, under Section
5328, "the present and past abuse committed by a party or member
of the party's household" is one of the custody factors. Also,
"factors which affect the safety of the child" are to be given
greater consideration, per Section 5328.
Section 5329 does not deal with criminal
charges. Pending criminal charges are covered in our next blog entry for