RESOLUTION OPPOSING PROPOSED LEGISLATION ESTABLISHING PRESUMPTION OF JOINT CUSTODY

WHEREAS , Section 5303 of the Domestic Relations Code provides, In making an order for custody, partial custody, or visitation to either parent, the court shall consider, among other factors, which parent is more likely to encourage, permit and allow frequent and continuing contact and physical access between the noncustodial parent and the child. In addition, the court shall consider each parent and adult household member's present and past violent or abusive conduct as defined under the act of October 7, 1976 (P.L. 1090, No.218), known as the Protection From Abuse Act, 23 Pa.C.S. §5303;

WHEREAS ,House Bill 1723, Printer's Number 2145, would amend Section 5303 by establishing a rebuttable presumption that an award of joint custody is in the best interest of a child;

WHEREAS , House Bill 1723 would amend Section 5303 by specifying the factors to be considered by the Court in making an order for custody, partial custody or visitation, deleting the words, among other factors;

WHEREAS , House Bill 1723 would amend Section 5305 by making counseling sessions for parents mandatory rather than discretionary (may becomes shall);

WHEREAS , House Bill 1723 would amend Section 5306 by adding the requirement that parties submit a parenting plan in writing, with certain specific provisions included;

WHEREAS , it is anticipated that these changes to the existing custody law would create difficulties for parties, attorneys and courts, including the following:

a. A rebuttable presumption of joint custody is likely to increase the amount of litigation in the courts;

b. The fact that only specific factors are required to be considered by the court in making its custody order while failing to mention other factors long established in the case law on custody would tend to diminish the importance of these other, unnamed factors and establish a hierarchy of importance;

c. The requirement for mandatory counseling sessions does not take into account the particular circumstances of each case (for example, where one parent or the child has been physically abused by the other parent) and it does not consider the cost of such a requirement;

 d. The requirement for a written parenting plan would work a hardship on those parents who are not represented and who have difficulties with writing in the English language, as well as be a burden on the court system that would have to handle this additional paperwork;

NOW, THEREFORE, BE IT RESOLVED that the Philadelphia Bar Association opposes the passage of House Bill 1723 or other comparable legislation.

PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
ADOPTED: March 26,1998