PHILADELPHIA BAR ASSOCIATION RESOLUTION OPPOSING SENATE BILL 78, PRINTER’S NO. 65 KNOWN AS ‘KAYDEN’S LAW’

WHEREAS, the Family Law Section of the Philadelphia Bar Association has consistently been opposed to presumptions in custody cases and takes the position that presumptions about parenting often become a "rubber stamp" and do not serve the best interest of the child, and should be individually assessed on a case-by-case basis; and

WHEREAS, the present law provides safeguards for children in custody proceedings and requires the court to determine the child’s best interest by applying the 16 custody factors codified by statute and to address and give weight to factors which affect the safety of the child; and

WHEREAS, the Philadelphia Bar Association acknowledges the terrible tragedy resulting in the untimely death of Kayden Mancuso at the hands of her father and extends its sympathies to Kayden’s mother and surviving family; and

WHEREAS, Senate Bill 78, Printer’s No. 65 (“SB 78”), introduced in the current session of the Pennsylvania General Assembly and known as “Kayden’s Law,” while intended to protect children and prevent tragedies such as the death of Kayden Mancuso, adds rigid requirements to the law that ultimately may harm the children and parents the law intends to protect; and

WHEREAS, the Philadelphia Bar Association remains confident that the present law provides the Courts with discretion to enter orders providing for the same remedies and protections proposed in SB 78; and

WHEREAS, demographic statistics prove that persons of Black and Hispanic racial backgrounds are disproportionately policed regarding their parenting and disproportionately negatively affected in custody court by involvement with child protective agencies;1 and

WHEREAS, low income mothers of color are the caretakers most likely to be indicated for child abuse under Pennsylvania’s child abuse law, which is broadly defined, and an indicated report could result from investigatory findings related to poverty, gender bias, bias against mothers, or systemic racism, false and manipulative allegations by abusers that a protective parent is abusive or neglectful, or behavior that is directly the result of being physically, emotionally and verbally abused, such as symptoms of Post-Traumatic Stress Disorder; and

WHEREAS, the current proposed language of SB 78, through the use of the term “shall,” mandates that the court include restrictions in any case where there has been any past abuse, whether or not there is any risk of continuing harm to the child, thereby mandating restrictions which may not be in the child’s best interest as well as creating additional litigation and causing prolonged uncertainty for the children involved; and

WHEREAS, children of this Commonwealth may be greatly harmed if they are removed from their primary caretaker and only able to see them in a supervised capacity as a result of a “rubber stamp” presumption requiring such an outcome; and

WHEREAS, in most parts of the Commonwealth including the City of Philadelphia, the majority of low-income parents do not have the ability to retain counsel and, thus, they are at an even greater disadvantage in attempting to defend against or rebut a presumption of supervised physical custody following allegations of abuse; and

WHEREAS, when presumptions demand professional supervision, an indigent parent will likely have no feasible way to see their child or children as there are few professional supervision and exchange centers in Pennsylvania, and the proposed bill provides no funding to create or secure any new sites; and

WHEREAS, SB 78, as written, expands the list of crimes that courts must consider in custody determinations to include simple assault, which may inadvertently harm parents who were convicted of such crimes in the context of defending themselves in abusive relationships or in contexts that are unrelated to their fitness to safely care for their children, such as the over-policing of Black and Brown people, especially Black and Brown women in the criminal justice system; and

WHEREAS, SB 78 proposes expanded counsel fees and costs be assessed against the alleged abuser and may create a financial burden on that parent which will chill the ability of any parent with an undeserved finding of abuse to have any ongoing contact with the child at issue;

NOW, THEREFORE, BE IT RESOLVED, that the Philadelphia Bar Association opposes SB 78, in its current form and any similar legislation.

AND BE IT FURTHER RESOLVED, that in the interest of justice and fairness to all parties involved in custody disputes, if the General Assembly wishes to enact SB 78, that SB 78 be amended in the following manner:

  1. Delete the presumptions contained in Sections 5323(e.1) and (e.2).
  2. Amend Section 5323(e) by revising the language to create a more discretionary standard for the court where warranted, by replacing the term “shall” with “may” and adding “or” between each of the listed safety conditions, i.e. “the court may include in the custody order safety conditions, restrictions or safeguards as necessary to protect the child or the abused party, including. . .or. . . .”
  3. Amend Section 5328(a.1) by replacing it with clearer language: “A factor shall not be weighed against a party if the circumstances related to the factor were in response to abuse and/or necessary to protect the child or abused party from harm.”
  4. Amend Section 5329(a) relating to consideration of criminal conviction, by removing “simple assault” from the list of crimes to be considered.
  5. Amend Section 5339(b) by deleting the entire section relating to costs and attorney fees.
  6. In the event that the presumptions remain, we propose two alternative amendments to Sections 5323(e.1) and (e.2) which will reduce the impact of systemic racism, sexism, and poverty on parents involved in protective services:
    1. State that the “court shall consider ordering non-professional supervised physical custody” rather than “the court shall be presumed to only allow non-professional/professional supervised physical custody” in Section 5323(e.1) and (e.2).
    2. Add language clarifying that “A court shall not find abuse by a preponderance of evidence based solely on an indicated Child Protective Services Law (CPSL) report, the fact of a CPSL investigation, or the acceptance of services from a children and youth agency.”

AND BE IT FURTHER RESOLVED, that the Philadelphia Bar Association authorizes the Chancellor and/or the Chancellor’s designee(s) to communicate the Philadelphia Bar Association’s position on Senate Bill No. 78, Printer’s No. 65 and similar legislation to the General Assembly, the Governor, the legal profession, the media, and the public and take whatever additional action is necessary to effectuate this resolution.

PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
Adopted: March 25, 2021

1 American Journal of Public Health, Lifetime Prevalence of Investigating Child Maltreatment Among US Children, https://ajph.aphapublications.org/doi/abs/10.2105/AJPH.2016.303545; Community Legal Services, Reform the Child Abuse Registry in Pennsylvania, https://clsphila.org/wp-content/uploads/2020/11/Reform-the-Child-Abuse-Registry-update-3.pdf