Act 112: Section 5329 - Criminal Convictions.

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.

Finally, Section 5329 does not deal with criminal charges. Pending criminal charges are covered in our next blog entry for Section 5330.