Consider the following scenario: A responsible, loving mother of three children prepares to attend a custody hearing where a judge will decide how she and her children’s father will share custody of their children. The mother does not know the ins and outs of the law regarding custody, and does not have a lawyer to assist her because she cannot afford to hire one. (She is not alone in this regard, as the Domestic Relations Court of the Philadelphia County Court of Common Pleas reports approximately 85 to 90 percent of litigants before the court appear pro se).

The children have been residing with mom since she and their father separated, so mom believes she is in a pretty good position going into the hearing as the children attend school and there have been no issues in her home that indicate there are any problems. However, mom is unaware her current boyfriend pled guilty to a drug possession charge several years ago and when mom is asked who resides in her home and gives the court the boyfriend’s name and date of birth, her nightmare begins. With no warning, primary custody of the children is transferred to the father and mom only gets to see her children every other weekend, and even then only so long as she ensures the boyfriend is not on the scene.

Similarly heartbreaking scenarios have been taking place in Pennsylvania’s family courts since significant changes to Pennsylvania’s Child Custody Statute, 23 Pa.C.S. 5321 et. seq., went into effect on Jan. 22, 2011 per Act 2010-112. The act, signed by Gov. Edward G. Rendell on Nov. 23, 2010, included many improvements that positively impact families. The law addresses relocation and contempt of custody, provides new definitions regarding custody, codifies factors that the court is to consider when deciding custody and more clearly identifies who may file for custody of children.

However, the act also amends the prior provision regarding consideration of criminal convictions and charges. The list of crimes the court must consider is expanded, as is the reach of the statute as the court must consider certain criminal convictions of not only the party seeking custody but also those of any household member of that party. These changes have had a tremendous impact on custody litigants in Pennsylvania, because so many people risk having a criminal past impact current custody decisions.

Public defenders and criminal defense attorneys need to be aware of the far-reaching consequences defendants will face following a plea or conviction. Ramifications of criminal records reach into many areas of one’s life, including access to employment, public benefits and housing, and may even hamper one’s ability to obtain a loan for higher education. Defendants in criminal cases often agree to a plea bargain without being fully aware of how a conviction may affect their future. This is especially true for parents facing criminal charges, as most do not realize they may be at risk of losing custody of their children if they — or a person with whom they reside — plead guilty in certain criminal matters.

Under the new law, if a party or household member has been convicted of an enumerated offense, the first step the court must take is to provide for an evaluation to determine whether that person poses a threat to the child and whether counseling is necessary. If a determination is made that counseling is necessary, the court is to appoint a “qualified professional specializing in treatment relating to the particular offense,” and may order subsequent evaluations of the offending party or household member.

Section 5330 of the statute addresses consideration of criminal charges of the same enumerated crimes listed in Section 5329. A party may request a temporary custody order or a modification of a current order if the other party has been charged with an enumerated crime, and the court is to hold a hearing in an “expeditious” manner to determine whether the party who has been charged poses a risk of physical, emotional or psychological harm to the child.

The majority of the crimes in the act are of a serious nature and clearly ought to be considered by the court when making a custody determination, e.g., homicide, rape and other sexual offenses. Other crimes added by the act, however, pose a problem for a large number of litigants in Philadelphia’s Domestic Relations Court. Particularly troubling for many parents are the additions to the list of convictions for driving under the influence and other drug offenses. Litigants appearing in court for custody matters are unaware an old DUI or drug possession conviction could prevent them from keeping or obtaining custody of their kids. Litigants are even more surprised to learn that a conviction of a household member could also prevent them from obtaining or keeping custody of their children. A 35-year-old parent who pled guilty to a drug possession charge when she was 19 may be prevented from obtaining custody of her child today because of that guilty plea.

The changes to the statute were enacted without accompanying rules of civil procedure to guide the courts in implementation. Proposed rules were recently published but have not yet been enacted, leaving an already overburdened court to determine how to interpret and implement the requirements of the statute. Without clear guidelines, the requirement for an initial evaluation of the parent or household member has been dealt with differently by various judges and custody masters within Philadelphia County and across the state.

A major question not answered by the statute is who is empowered to perform the initial evaluation. The prior statute made it mandatory for the court to appoint a “qualified professional” when a parent had been convicted of an enumerated offense, and therefore was more clear and uniformly implemented by the courts.

Since the statute is now silent on this issue, implementation has not been uniform. Judges and custody masters have interpreted the statute to allow them to perform the initial evaluation at the bar of the court during a custody proceeding. Others may believe a psychiatrist or psychologist must perform the initial evaluation and will not enter an order granting an offending party (or party who resides with an offending person) any form of custody of a child until such an evaluation has been performed. Custody conference officers may also have their own opinions of whether they are permitted to perform this initial evaluation.

Thus far, advocates report there is not consistency across judges and custody masters in Philadelphia and across Pennsylvania. Some judges and custody masters do not enter orders when presented with such a situation until an evaluation is performed. Others enter orders transferring custody of children due to a criminal conviction or criminal charge until an evaluation is performed, while some judges are performing evaluations themselves and are then immediately entering custody orders or ordering counseling for the offending parties. When a judge or master does not feel it is appropriate to perform the initial evaluation, the court psychologist may be ordered to do so. Philadelphia County employs one psychologist who is charged with performing mental health evaluations when so ordered by the court. It is hard to imagine that one individual would not be completely overwhelmed should evaluations for every litigant or household members of litigants with convictions of one of the enumerated crimes be ordered and that doing so would not further delay final decisions in custody matters, which often take many months under the present system.

The proposed rules previously mentioned would allow for a custody conference officer, custody master or judge to perform the initial evaluation, and specifically state the initial evaluation should not be done by a mental health professional, but do not provide for guidelines for the evaluations. Many practitioners have commented on the need for direction and suggest any proposed rule direct the evaluator to consider the date of the crime, the severity of the crime and whether the crime involved a violent act. Practitioners have also suggested the court consider whether the victim of the crime was a child, parent or other custodian of the child in question.

There are many unanswered questions about how the new act will affect litigants. Is evaluation and subsequent counseling necessary for a parent who has been the successful primary custodian of a child for years and is now defending an action by the other parent, who is seeking primary physical custody simply due to an old criminal conviction? Without guidance and rules of civil procedure, it is difficult to properly advise a pro se litigant as to what to expect in this situation. We anticipate written procedural guidelines will improve outcomes for families who are confused by this statute and its various and conflicting applications, but until then it is likely a lack of uniformity in implementation of the statute will continue. •

SUSAN PEARLSTEIN is the supervising attorney of the family law unit at Philadelphia Legal Assistance.