Risk of Harm Procedures in Lancaster County

March 6, 2019
Holly S. Filius
  • 5329. Consideration of criminal conviction. 

(a)  Offenses.–Where a party seeks any form of custody, the court shall consider whether that party or member of that party’s household has been convicted of or has pleaded guilty or no contest to any of the offenses in this section or an offense in another jurisdiction substantially equivalent to any of the offenses in this section. The court shall consider such conduct and determine that the party does not pose a threat of harm to the child before making any order of custody to that party when considering the following offenses:

23 Pa. C.S.A. § 5329 and § 5330 address a number of criminal offenses that may give rise to additional custody proceedings under certain circumstances in addition to participation in a custody conference.  Those enumerated offenses, in addition to an involvement with a County Children and Youth Agency or the Protection From Abuse (PFA) system, are required to be addressed under PA law prior to a Court entering a Custody Order.  Many County Courts have struggled with the best way to address this requirement when considering the timeliness of custody decisions, the cost of prolonged litigation, the additional strain on the calendars and resources of the Court system and, most importantly, the effect on children and families.

Initially, the Lancaster County Court of Common Pleas required that any party to a custody action or adult member of their household who had been convicted of or had pending charges for these offenses, as well as any Children and Youth involvement or PFA involvement, had to have a separate risk of harm hearing before any Court Order related to custody could be entered.  For some judges, that hearing occurred informally off the record and for others was an extensive on the record hearing that at times could take days, with all forms of hearing in between those two extremes.  Family law attorneys and judges quickly learned that requiring a hearing on every matter became cumbersome, delayed proceedings significantly, was expensive to the parties and did not sufficiently serve the needs and welfare of families and children.  Each judge began to handle his or her risk of harm issues differently.  This made it more difficult for family law attorneys to advise their clients since the standard was not consistent, additionally, it did not do much to lessen the cost of risk of harm litigation, move cases through the custody system more quickly or to address the needs of children and families.

Effective April 16, 2018 the Lancaster County family law judges implemented a policy that all risk of harm issues would be initially reviewed by the judge assigned to a particular matter and would be referred to a custody conference officer unless the judge determined that a hearing before a judge was necessary. Under this new policy, the judges authorized the conference officers to handle all risk of harm hearings within their conference procedures unless a hearing before a judge was required.  This new policy requires the parties and their attorneys to participate in custody conferences involving risk of harm issues and does not provide for a procedure within which counsel or parties could demand a hearing before a judge rather than having the matter heard before a conference officer.  However, after a conference officer evaluates any risk of harm issues during a custody conference, if that conference officer has ongoing concerns regarding any potential risk of harm, he or she is required to notify the assigned judge who will determine if a hearing is necessary.

After review of any risk of harm issues, a custody conference officer may recommend to the judge assigned to a particular matter that certain further evaluations are required to truly evaluate whether a risk of harm exists in a matter. However, that recommendation is just that, a recommendation.   It remains within the sole discretion of the assigned judge to determine whether or not an evaluation will be required or not.

Your family law attorney will guide you through the complexities of risk of harm issues but with the implementation of a more streamlined policy, custody cases involving risk of harm issues can proceed more efficiently, economically and appropriately through the custody system which ultimately results in better outcomes for families and children.

Holly Filius is an attorney at Russell, Krafft & Gruber, LLP in Lancaster, Pennsylvania. She received her law degree from Widener University School of Law and practices in a variety of areas, including Family Law.