On August 13, 2024, Pennsylvania will see the enactment of Kayden’s Law, a transformative piece of legislation aimed at enhancing the safety and well-being of children involved in custody disputes. Stemming from the tragic loss of Kayden Mancuso, who was brutally beaten to death by her father after he was allowed unsupervised custody time, this law aims to address gaps in the existing legal framework by introducing more stringent protections and guidelines for handling custody cases, particularly those involving allegations of abuse.
While still using a best interest of the child standard to determine custody, the courts now must put a greater evidence on safety.
The courts are now required to give significant consideration to the revised custody factors outlined in 23 Pa.C.S.A. Section 5328, which focus on the “safety of the child.” This definition now includes the physical, emotional, and psychological well-being of the child. Factor 1 has been updated to emphasize which party is more likely to ensure the child’s safety. While the previous Factor 1, now moved to Factor 2.3, required an assessment of which party would encourage ongoing contact between the child and the other parent, the courts must now evaluate if such contact aligns with the child’s safety needs. Evidence of abuse by a party or a household member can now include current or past protection from abuse orders or sexual violence protection orders where abuse has been found. The court is also required to consider any violent or assaultive behavior by a party.
Importantly, if the court identifies a history of abuse or a current risk of harm to the child or a household member, any custody awarded to the abusive party must include an explanation of the safety measures necessary to protect the child or the abused party. If the court allows unsupervised custody despite past abuse, it must explain why this is in the child’s best interests.
Furthermore, if the court finds it more likely than not that there is an ongoing risk of abuse, Kayden’s Law introduces a rebuttable presumption favoring supervised custody between the child and the abusive party. This presumption can be triggered by an “indicated” report from a child protective agency for physical or sexual abuse, following a thorough review of the circumstances. The law leans towards professional supervised custody, which can be costly, raising concerns about its impact on low-income families. However, the law does allow for nonprofessional supervised custody if the party cannot afford a professional supervisor or if professional supervision is unavailable nearby.
Before Kayden’s Law, judges already had to consider certain criminal convictions in custody cases. The law now adds new crimes, including simple assault, recklessly endangering another person, animal cruelty, animal fighting, possession of animal fighting paraphernalia, and interference with custody of children, to the list of offenses the court must weigh when determining custody.
Kayden’s Law also urges the Pennsylvania Supreme Court to implement annual education and training for judges and relevant court personnel on issues like child abuse, adverse childhood experiences, and the impact of domestic violence on children.
The passage of Kayden’s Law represents a major change in how Pennsylvania handles custody disputes, with a stronger focus on child safety. It aims to reduce the risks to children involved in contentious custody battles where safety is a concern. However, only once the law is in effect and its outcomes are observed, will we understand the full impact it may have on Pennsylvania families involved in custody disputes.
Tibbott & Richardson, P.C.
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