Never Again – How Kayden’s Law Seeks to Protect Pennsylvania’s Children From Abuse

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Cozen O'Connor

“Dogs have more rights than children.”

These are the powerful, haunting words spoken by the aunt of Kayden Mancuso, a 7-year old child who was brutally bludgeoned to death by her Father, Jeffery Mancuso, on August 6, 2018, only a few short months after her Father was awarded partial, unsupervised custody pursuant to a Court Order entered May 21, 2018.  Unfortunately, Kayden’s death was not the first, nor the last, to occur at the hands of a parent where warning signs were present.  But it was Kayden’s death which spurred the introduction of SB 868, also known as “Kayden’s Law.”  In order to understand how we got here, and why changes to our law are necessary, we must review the custody analysis in Pennsylvania and how Kayden’s custody order was a legally-sound result of insufficient legislation.

When determining custody in Pennsylvania, the courts refer to the sixteen (16) factors enumerated in 23 Pa. C.S. § 5328(a).  These factors are determined in the best interest of the child, and those factors which affect the safety of the child are given weighted consideration:

(1)  Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.

(2)  The present and past abuse committed by a party or member of the party’s household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.

(2.1)  The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement with protective services).

(3)  The parental duties performed by each party on behalf of the child.

(4)  The need for stability and continuity in the child’s education, family life and community life.

(5)  The availability of extended family.

(6)  The child’s sibling relationships.

(7)  The well-reasoned preference of the child, based on the child’s maturity and judgment.

(8)  The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.

(9)  Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.

(10)  Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.

(11)  The proximity of the residences of the parties.

(12)  Each party’s availability to care for the child or ability to make appropriate child-care arrangements.

(13)  The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party’s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.

(14)  The history of drug or alcohol abuse of a party or member of a party’s household.

(15)  The mental and physical condition of a party or member of a party’s household.

(16)  Any other relevant factor.

It is the second factor which most notably addresses the child’s safety by discussing issues of present and past abuse and whether there is an existing risk of harm.  The term “abuse” in this factor is defined under 23 Pa. C.S. § 6102 as the following:

The occurrence of one or more of the following acts between family or household members, sexual or intimate partners or persons who share biological parenthood: (1) attempting to cause or intentionally, knowingly or recklessly causing bodily injury, serious bodily injury, rape, involuntary deviate sexual intercourse, sexual assault, statutory sexual assault, aggravated indecent assault, indecent assault or incest with or without a deadly weapon; (2) placing another in reasonable fear of imminent serious bodily injury; (3) the infliction of false imprisonment pursuant to 18 Pa. C.S. § 2903; (4) physically or sexually abusing minor children…; and (5) knowingly engaging in a course of conduct or repeatedly committing acts toward another person, including following the person, without proper authority, under circumstances which place the person in reasonable fear of bodily injury.

 (emphasis added).  Despite the many strides made in terms of researching and understanding domestic abuse, § 6102’s definition has not been modified since 1995.  As it stands, the current definition of “abuse” limits the weight the court may afford other violent acts committed by the parents of children under § 5328(a)(2).  23 Pa. C.S. § 5329 requires the court to consider certain offenses when a party seeks custody; however, the judge is permitted to award custody to the convicted party if the judge believes such an award is in the best interest of the child, and the judge is not required to order such custody to be supervised. 

After a long custody dispute, a custody evaluation including an interview of Kayden, and professional drug and alcohol and mental health evaluations of both parents, the Court entered a Custody Order awarding Father partial physical custody with unsupervised visitation rights.  Shortly thereafter, Father murdered Kayden and then committed suicide in his home.  It was due to these gaps in the law that Kayden was allowed unsupervised visits with her Father who had a well-documented history of violence.  And it is these gaps that Kayden’s Law seeks to address.  Kayden’s Law was introduced to the Senate in October 2019.  The memorandum accompanying Kayden’s Law states that nearly 700 children of a divorced or separated couple were murdered by a parent between 2008 and 2018.  Moreover, “[a] review of 4,000 domestic court cases show that the abuser wins custody or unsupervised visitation 81-percent of the time.”

Kayden’s Law will amend Pennsylvania’s custody factors to more properly address issues of abuse and the physical and psychological safety of the child by requiring the courts to consider not only the child custody factors but also child abuse, involvement with child protective services, criminal convictions, and criminal charges of the parents.  The second custody factor will be shortened to only consider the present and past abuse, including violent or assaultive behavior and existing Protection from Abuse Orders, committed by a party or member of the household.  This factor will no longer contain an analysis regarding whether there exists a continued risk of harm.  The fourth custody factor will be amended to state that stability and continuity is only considered when there exists no necessary changes that disrupt such stability and continuity in order to protect the health and safety of the child.  The seventh custody factor will be amended to require the judge to consider the well-reasoned preference of the child based on the child’s developmental stage and not just on the child’s maturity and judgment.  And where a child expresses fear of a parent based on the parent’s previous violent behavior, such fear shall be considered well-reasoned.

Beyond § 5328(a), Kayden’s Law will expand the types of convictions the court is required to consider under § 5329.  Extending beyond severe violent crimes enacted on persons, § 5329 will also require consideration of simple assault, reckless endangerment, strangulation, involuntary servitude, patronizing a victim of sexual servitude, human trafficking, cruelty to animal, aggravated cruelty to animal, animal fighting, and possession of animal fighting paraphernalia.  The definition of “domestic violence” would be amended to “domestic abuse” with its reach broadened to include abuse of a partner, spouse, child or pet rather than just to an intimate partner.  This modified definition also notes that while abuse is often in the form of physical violence, abuse tactics are not necessarily physical or illegal.  An amendment to 23 Pa.C.S. § 5323 is also included to require the courts to include safety conditions in an order when the judge awards custody to a party who was found to have a history of abuse of the child or a household member or a history of risk of harm to the child or an abused party. 

Lastly, Kayden’s Law would require that if counsel is appointed for a child due to substantial allegations of abuse, the counsel appointed must receive education and training related to child abuse and domestic abuse.  It also strongly urges the Administrative Office of Pennsylvania Courts to develop and implement an ongoing education and training program for judges, magisterial district judges, and relevant court personnel.

Kayden’s Law is currently before the full PA Senate.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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