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Case Notes: New Custody Law Interpreted - Crimes and Counseling

The PA Supreme Court case pf DRC v. JAZ (published November 23, 2011) is the first to interpret the crimes/counseling provision of the new custody law enacted in 2011 (Act 112). This law went into effect in 2011.

The new law says that a parent, who has been convicted of one of the crimes listed in the custody statue, must be evaluated to determine if they are a danger. If the parent is a danger, then counseling must be provided before a final determination is made on custody..

However, the Court can also appoint a counselor even if the convicted parent has not been found to be a danger. The relevant law is at 23 PaCSA 5329. It reads:

(c) Initial evaluation. --The court shall provide for an evaluation to determine whether:

(1) the party or household member who committed an offense under subsection (a) poses a threat to the child; and

(2) counseling is necessary for that party or household member.

(d) Counseling.

(1) Where the court determines under subsection (c) that counseling is necessary, it shall appoint a qualified professional specializing in treatment relating to the particular offense to provide counseling to the offending individual.

(2) Counseling may include a program of treatment or individual therapy designed to rehabilitate the offending individual which addresses, but is not limited to, issues regarding physical and sexual abuse, the psychology of the offender and the effects of the offense on the victim.

In DRC v. JAZ, the Supreme Court considered the appeal of a parent incarcerated for murder who sought contact with his ten year old son. The trial court refused to award visitation to the convict parent (who was serving a life sentence) until he could provide proof of counseling as required by the new custody law.

The trial court held that the counseling available through the Department of Corrections (DOC) was inadequate. The trial court also determined that it had no authority to order the Department of Corrections to provide the right type of counseling.

The Superior Court reversed the trial court’s decision and told the DOC to provide the kind of counseling that is required by the custody law. Unsurprisingly, the DOC wanted no part of providing this additional service, so the DOC "intervened" in the case and the case went to the PA Supreme Court.

The DOC argued to the Supreme Court that the counseling provisions of the custody law only apply to convicts after they are released from incarceration, because incarcerated parents have no meaningful ability to exercise custody.

Applying the statutory construction rules and reviewing the legislative history, the Supreme Court held that the purpose of the counseling provision was to ensure that criminal convictions were known to and considered by the courts when determining custody of children, and to determine whether any lingering danger might exist. The Court agreed with DOC that the counseling provision did NOT apply to incarcerated parents in the context of a request for prison visits. So, the DOC is not required to provide the type of counseling that might permit a parent to excercise custody because a parent who is in prison cannot meaningfully excercise that custody.