On May 21, 2018, Jeffery Mancuso was awarded partial, unsupervised custody of his 7-year-old daughter Kayden. Seventy-seven days later Kayden was dead at the hands of her father. Mancuso was given custody in spite of his history of violent outbursts, and a criminal record, which included assault charges across a number of states.
Kayden’s death spurred the introduction of Pennsylvania Senate Bill 78. The Bill, known as “Kayden’s Law”, makes crucial changes to 23 Pa. C.S. § 5328(a), a Pennsylvania statute that sets forth sixteen factors to be considered when determining custody. Those factors which affect the safety of the child are given more weight. One such factor in the existing statute reads “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”.
Here the term “abuse” refers to five specific acts between family or household members, sexual or intimate partners or persons who share biological parenthood. Those acts include:
- attempting to cause or intentionally, knowingly or recklessly causing bodily injury, rape, involuntary deviate sexual intercourse, sexual assault, indecent assault or incest;
- placing another in reasonable fear of imminent serious bodily injury;
- the infliction of false imprisonment;
- physically or sexually abusing minor children; and
- knowingly engaging in a course of conduct or repeatedly committing acts under circumstances which place the person in reasonable fear of bodily injury.
The current definition of “abuse” limits the weight a court may afford other violent acts committed by the parents. Kayden’s Law greatly expands the definition of abuse. In addition, it changes the custody factors to give greater weight to abuse in custody determinations and expands the list of criminal convictions to be considered in custody matters. Courts will then be required to vet all allegations of past and present abuse in light of these heightened standards.
The expanded list of convictions the court would be required to consider include assault, reckless endangerment, strangulation, involuntary servitude, patronizing a victim of sexual servitude, human trafficking, cruelty to animals, animal fighting, and possession of animal fighting paraphernalia.
In addition, the definition of “domestic violence” would be amended to “domestic abuse”, which would 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 even illegal.
In essence, Kayden’s Law creates a rebuttable presumption that a parent with any history of abuse against any household member may only be allowed supervised visitation.
Under Kayden’s Law, an analysis regarding “a continued risk of harm” would no longer be required. Only present and past abuse would be considered.
Courts would also be required 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.
Another important provision in Kayden’s Law is a requirement that the judge 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. In instances where a child expresses fear of a parent based on the parent’s previous violent behavior, such fear shall be considered well-reasoned.
Between 2008 and 2018 nearly 700 children of divorced or separated couples were murdered by a parent. Equally alarming, a review of 4,000 domestic court cases indicated that the abuser wins custody or unsupervised visitation 81% of the time.
Kayden’s Law was passed by the Pennsylvania Senate. It must be passed by the Pennsylvania House of Representatives. Our children must be better protected.
To speak with a knowledgeable family law attorney about custody issues, call Comitz Law at 570-829-1111 or email us at info@comitzlaw.com.