PA Supreme Court Custody Decision Interprets Counseling Provision of New Law

The Supreme Court of Pennsylvania has issued its first decision interpreting the counseling provision of the newly-enacted custody statute. In cases where a parent has been convicted of one of the crimes listed in the custody law, the court is required to provide counseling before rendering a custody order, as follows:

(c) Counseling.—In making a determination to award custody, partial custody or visitation pursuant to subsection (b), the court shall appoint a qualified professional to provide counseling to an offending parent described in subsection (b) and shall take testimony from that professional regarding the provision of such counseling prior to issuing any order of custody, partial custody or visitation. Counseling, required in accordance with this subsection, shall include a program of treatment or individual therapy designed to rehabilitate a parent which addresses, but is not limited to, issues regarding physical and sexual abuse, domestic violence, the psychology of the offender and the effects of abuse on the victim. If the court awards custody, partial custody or visitation to an offending parent described in subsection (b), the court may require subsequent periodic counseling and reports on the rehabilitation of the offending parent and the well-being of the child following an order relating to custody, partial custody or visitation. If, upon review of a subsequent report or reports, the court determines that the offending parent poses a threat of harm to the child, the court may schedule a hearing and modify the order of custody or visitation to protect the wellbeing of the child.

In DRC v. JAZ, published on November 23, 2011, the Supreme Court considered the appeal of a murderer who sought contact with his ten year old son. The trial court refused to award visitation to the homicidal parent (who was serving a life sentence) until he could provide proof of counseling as required by the new custody law. The Department of Corrections offered testimony of what types of counseling it could provide, but the trial court held that such counseling was inadequate. More importantly, the court found 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, instructing the Department of Corrections to provide counseling to the inmate as required by the custody law. When the trial court implemented the Superior Court’s order on remand, the DOC petitioned to intervene in the custody action as a third party defendant.  The trial court allowed DOC to intervene but refused to stay the case. The father appealed the trial court’s decision allowing DOC to intervene. The Superior Court affirmed the trial court’s decisions. The Supreme Court then granted allocatur.

On appeal, the DOC argued that the counseling provisions of the custody law must apply only to parents who are released after incarceration, because incarcerated parents have no meaningful ability to exercise custody, partial custody or visitation of children. DOC argued that it should not have to keep mental health records that might be revealed to the inmate in the context of custody litigation as the inmates might seek reprisal for negative findings. Finally DOC argued that the courts should not impose a financial obligation upon the prison system not contemplated by the Legislature.

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. Four Justices joined in two concurring opinions, with two Justices concurring and dissenting.