Pennsylvania Act 2018-88 — DOMESTIC RELATIONS CODE (23 PA.C.S.) - STANDBY GUARDIANSHIP, TEMPORARY GUARDIANSHIP AND RELEASE OF INFORMATION IN CONFIDENTIAL REPORTS

Act text

Session of 2018

No. 2018-88

HB 1539

AN ACT

Amending Title 23 (Domestic Relations) of the Pennsylvania Consolidated Statutes, in standby guardianship, further providing for definitions and for scope and providing for temporary guardianship; in child protective services, further providing for release of information in confidential reports; and making editorial changes.

The General Assembly of the Commonwealth of Pennsylvania hereby enacts as follows:

Section 1. The heading of Chapter 56 of Title 23 of the Pennsylvania Consolidated Statutes is amended to read:

CHAPTER 56

STANDBY AND TEMPORARY GUARDIANSHIP

Section 2. Sections 5602 and 5603 of Title 23 are amended to read:

§ 5602. Definitions.

The following words and phrases when used in this chapter shall have the meanings given to them in this section unless the context clearly indicates otherwise:

"Alternate." A person with all the rights, responsibilities and qualifications of a standby guardian who shall become a standby guardian only in the event that the currently designated standby guardian is unable or refuses to fulfill his obligation.

"Attending physician." A physician who has primary responsibility for the treatment and care of the designator. If physicians share responsibility, another physician is acting on the attending physician's behalf or no physician has primary responsibility, any physician who is familiar with the designator's medical condition may act as an attending physician under this chapter.

"Coguardian." A person who along with a parent shares physical or legal custody, or both, of a child.

"Consent." A written authorization signed by the designator in the presence of two witnesses who shall also sign the writing. The witnesses must be 18 years of age or older and not named in the designation.

"Court." Family Court Division or domestic relations section of a court of common pleas unless otherwise provided by local rules of court.

"Debilitation." A person's chronic and substantial inability as a result of a physically incapacitating disease or injury to care for a dependent minor.

"Designation." A written document naming the standby guardian or temporary guardian . A parent, a legal custodian or a legal guardian may designate an alternate standby guardian in the same writing.

"Designator." A parent, a legal custodian or a legal guardian who appoints a standby guardian or temporary guardian .

"Determination of debilitation." A written finding made by an attending physician which states that the designator suffers from a physically incapacitating disease or injury. No identification of the illness in question is required.

"Determination of incapacity." A written finding made by an attending physician which states the nature, extent and probable duration of the designator's mental or organic incapacity.

"Family member." A grandparent, aunt, uncle or adult sibling of a minor.

"Incapacity." A chronic and substantial inability, resulting from a mental or organic impairment, to understand the nature and consequences of decisions concerning the care of the designator's dependent minor and a consequent inability to care for the minor.

"Standby guardian." A person named by a designator to assume the duties of coguardian or guardian of a minor and whose authority becomes effective upon the incapacity, debilitation and consent, or death of the minor's parent.

"Temporary guardian." A family member appointed by a court for a limited period as a guardian of the minor when the minor's custodial parent has entered a rehabilitation facility for treatment of drug or alcohol addiction or has been subject to emergency medical intervention due to abuse of drugs or alcohol.

"Triggering event." A specified occurrence stated in the designation which empowers a standby guardian to assume the powers, duties and responsibilities of guardian or coguardian.

§ 5603. Scope.

The provisions of Chapter 53 (relating to custody) and 20 Pa.C.S. Ch. 25 (relating to wills) shall apply to standby guardians, coguardians, guardians , temporary guardians and any alternates unless otherwise specified in this chapter. Nothing in this chapter shall be construed to deprive any parent, custodial or noncustodial, of legal parental rights. Nothing in this chapter shall be construed to relieve any parent, custodial or noncustodial, of a duty to support a child under the provisions of Chapter 43 (relating to support matters generally).

Section 3. The heading of Subchapter B of Chapter 56 of Title 23 is amended to read:

SUBCHAPTER B

[GENERAL PROVISIONS] STANDBY GUARDIANSHIP

Section 4. Chapter 56 of Title 23 is amended by adding a subchapter to read:

SUBCHAPTER C

TEMPORARY GUARDIANSHIP

Sec.

5621. Designation.

5622. Petition for approval of designation.

5623. Authority of temporary guardian.

5624. Period of temporary guardianship.

5625. Termination of temporary guardianship.

§ 5621. Designation.

(a) General rule.--Except as provided in subsection (b), a custodial parent may designate a temporary guardian by means of a written designation unless the minor has another parent or adoptive parent:

(1) whose parental rights have not been terminated or relinquished;

(2) whose whereabouts are known; and

(3) who is willing and able to make and carry out the day-to-day child-care decisions concerning the minor.

(b) Exception where other parent consents.--Notwithstanding subsection (a), a parent, legal custodian or legal guardian may designate a temporary guardian with the consent of the other parent.

(c) Contents.--

(1) A designation of a temporary guardianship shall identify the custodial parent, the minor or minors, any other parent, the temporary guardian and the triggering event or events upon which a named temporary guardian shall become a coguardian or guardian. The designation shall also include the signed consent of the temporary guardian and the signed consent of any other parent or an indication why the other parent's consent is not necessary.

(2) The designation shall be signed by the designating parent in the presence of two witnesses who are 18 years of age or older and not otherwise named in the designation, who shall also sign the designation.

(3) A parent may also but need not designate an alternate in the designation.

(4) A designation may but need not be in the following form:

‌(Insert name of designator) do hereby appoint (Insert name, address and telephone number of temporary guardian) as the temporary guardian of (Insert name(s) of minor(s) to take effect upon

‌ (Date).

I am the mother/father/other to‌

‌

(Insert name(s) of minor(s)).

‌

(Insert name(s) of other parent(s) of minor(s)) is the father/mother/other of ‌

‌

(Insert name(s) of minor(s)).

By this designation, I am granting ‌

(Insert name of temporary guardian) the authority to act for 90 days following the occurrence of ‌

as a coguardian with me or as guardian of my minor child(ren).

It is my intention to retain full parental rights to the extent consistent with my condition and to retain the authority to revoke the temporary guardianship if I so choose.

This designation is made after careful reflection, while I am of sound mind.

.......................... ..............................

(Date) (Designator's signature)

.......................... ..............................

(Witness's signature) (Witness's signature)

.......................... ..............................

(Number and Street) (Number and Street)

.......................... ..............................

(City, State and Zip Code) (City, State and Zip Code)

If applicable: I, .......................................,

(Insert name of other parent)

hereby consent to this designation.

.......................... ..............................

(Date) (Signature of other parent)

...........................................................

(Address of other parent)

I,.........................................................

(Insert name of temporary guardian), hereby accept my nomination as temporary guardian of ‌

‌

(Insert minor(s)'s name(s)). I understand that my rights and responsibilities toward the minor child(ren) named above will become effective upon (Date)

I further understand that in order to continue as temporary guardian for the child(ren), I must file a petition with the court of common pleas within 30 days of the order granting the petition for temporary guardianship.

.......................... ..............................

(Date) (Signature of temporary guardian)

NOTARY SEAL

I hereby revoke the above temporary guardianship agreement.

‌ (Parent signature)

‌ (Date)

NOTARY SEAL

§ 5622. Petition for approval of designation.

(a) General rule.--Except as provided in subsection (b), a petition for court approval of a designation under this chapter may be made when an individual who is a custodial parent of a minor has entered a rehabilitation facility for treatment of a drug or alcohol addiction or has been subject to emergency medical intervention due to abuse of drugs or alcohol by filing with the court a copy of the designation.

(b) Exception where designation has not been entered.--If a custodial parent has been subject to emergency medical intervention due to abuse of drugs or alcohol and a written designation has not been executed, a family member shall petition the court to hold a hearing to be designated temporary guardian. The petition, which shall require the notarized signature of the petitioner, shall be provided by the court in the following form:

Petition for Temporary Guardianship without Consent of Parent

I,....................................................... (Insert Name, Address and Telephone Number of Family Member Petitioning for Temporary Guardianship and Relationship to Minor), HEREBY DECLARE MY INTENT TO BE APPOINTED TEMPORARY GUARDIAN OF ................................................ (Insert Name(s), Address(es) and Telephone Number(s) of Minor(s) for whom the appointment of temporary guardian is being sought) AS A RESULT OF EMERGENCY MEDICAL INTERVENTION RESULTING FROM ABUSE OF DRUGS OR ALCOHOL BY ................................

.......... (Insert Name, Address and Telephone Number), FATHER/MOTHER TO ......................................(Insert Name(s) of Minor(s)), ON ...........................(Insert approximate date of the event).

I HAVE NOTIFIED THE CHILD(REN)'S OTHER PARENT,.............

.................................................(Insert Name, Address and Telephone Number), OF MY INTENT TO PETITION THIS COURT FOR TEMPORARY GUARDIANSHIP.

I UNDERSTAND THAT FILING THIS PETITION DOES NOT REVOKE THE PARENTAL RIGHTS OF THE MINOR'S PARENT(S) NOR DOES IT GRANT ME ANY PARENTAL RIGHTS.

I UNDERSTAND THAT MY RIGHTS AND RESPONSIBILITIES AS A TEMPORARY GUARDIAN TOWARD THE MINOR CHILD(REN) NAMED ABOVE WILL BECOME EFFECTIVE UPON THE COMPLETION OF A HEARING AND RENDERING OF A DECISION BY THE COURT.

I UNDERSTAND THAT FILING FEES AND OTHER COSTS ASSOCIATED WITH THESE PROCEEDINGS MAY BE WAIVED IF I DEMONSTRATE THE FEES AND OTHER COSTS WOULD CONSTITUTE A FINANCIAL BURDEN TO ME AND MY FAMILY.

I HEREBY SWEAR OR AFFIRM THAT THE INFORMATION CONTAINED HEREIN IS TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE.

......................... ...............................

(DATE) (SIGNATURE OF PETITIONER)

(c) Notice.--

(1) The court shall notify a person named in the designation within 10 days of the filing of the petition and of any hearing on the petition.

(2) If a designation has not been executed, the petitioner shall notify the custodial parent or parents, noncustodial parent or adoptive parent within 10 days of the filing of the petition and of any hearing on the petition.

(3) If the petition alleges that a noncustodial parent cannot be located, that parent shall be notified in accordance with the notice provisions of the Pennsylvania Rules of Civil Procedure in custody matters. No notice is necessary to a parent whose parental rights have previously been terminated or relinquished.

(d) Jurisdiction.--For purposes of determining jurisdiction under this chapter, the provisions of Chapter 54 (relating to uniform child custody jurisdiction and enforcement) shall apply.

(e) Presumptions.--In a proceeding for judicial appointment of a temporary guardian, a designation shall constitute a rebuttable presumption that the designated temporary guardian is capable of serving as coguardian or guardian. When the designator is the sole surviving parent and when the parental rights of any noncustodial parent have been terminated or relinquished or when all parties consent to the designation, there shall be a rebuttable presumption that entry of the approval order is in the best interest of the child. In any case, if the court finds entry of the approval order to be in the best interests of the child, the court shall enter an order approving the designation petition.

(f) Approval without hearing.--Approval of the designation without a hearing is permitted when the designator is the sole surviving parent, when the parental rights of a noncustodial parent have been terminated or relinquished or when all parties consent to entry of the approval order.

(g) Hearing.--If a hearing is required, it shall be conducted in accordance with the proceedings under Chapters 53 (relating to child custody) and 54.

(h) Court appearance.--If a designation has not been executed and a petition for temporary guardianship has been filed with the court by a family member, the custodial parent and noncustodial parent or adoptive parent shall appear in court in order to consent to or oppose the designation. If notice has been given under subsection (c)(3) and a noncustodial parent does not appear in court, it is presumed that consent to the designation has been granted.

(i) Costs.--A court may waive filing fees and other costs upon application when the petitioner demonstrates the fees and other costs would constitute a financial burden upon the petitioner and the petitioner's family. There shall be a presumption of a financial burden if the income from all sources of the petitioner is less than 300% of the poverty level set by the Federal Government.

§ 5623. Authority of temporary guardian.

(a) Authority.--

(1) The temporary guardian shall have the authority to act as coguardian or guardian upon a custodial parent entering into an alcohol or drug treatment facility or upon a court ordering the designation pursuant to hearing under subsection 5622(b) (relating to petition for approval of designation).

(2) The commencement of the temporary guardian's authority to act as coguardian shall not itself divest the custodial parent of parental rights but shall confer upon the temporary guardian concurrent or shared custody of the child.

(3) A coguardian shall assure frequent and continuing contact with and physical access to the child and shall further assure the involvement of the custodial parent, to the greatest extent possible, in the decision making on behalf of the child.

(4) The commencement of a temporary guardian's authority under this subchapter shall not itself divest a parent or legal guardian of parental or guardianship rights.

(b) Limitations on authority.--In addition to any other restrictions placed on a temporary guardian by the court, the temporary guardian may not:

(1) remove the minor or permit the minor to be removed from the United States either permanently or temporarily without the consent of the custodial parent and the approval of the court; or

(2) remove the minor from this Commonwealth absent a court order, which may only be issued after a hearing at which both parents and the minor shall have the right to be present.

§ 5624. Period of temporary guardianship.

(a) Initial period.--Temporary guardianship under this subchapter shall be limited to not more than 90 days from entry of the order of temporary guardianship.

(b) Extension of guardianship.--Upon approval by the court or by written agreement of the temporary guardian and the parent who has entered a rehabilitation facility, temporary guardianship shall be extended for periods of up to 90 additional days.

(c) Total period.--The total period of guardianship under this section shall not exceed 365 days.

§ 5625. Termination of temporary guardianship.

(a) Conditions.--A court shall terminate a temporary guardianship if any of the following exists:

(1) The custodial parent demonstrates the basis for the temporary guardianship no longer exists.

(2) The custodial parent and temporary guardian agree upon termination.

(3) The temporary guardian files a petition with the court seeking termination.

(4) Subject to subsection (b), a noncustodial or adoptive parent files a petition with the court seeking termination of the guardianship.

(5) The temporary guardian or an individual who resides with the temporary guardian commits an offense that results in the temporary guardian or an individual who resides with the temporary guardian being identified as a perpetrator as defined in section 6303 (relating to definitions).

(b) Mandatory considerations.--Before terminating an order for temporary guardianship under subsection (a)(4), the court shall consider if termination of the temporary guardianship is in the best interests of the minor if the individual's parental rights were previously terminated.

Section 5. Section 6340(a)(5.1) of Title 23 is amended to read:

§ 6340. Release of information in confidential reports.

(a) General rule.--Reports specified in section 6339 (relating to confidentiality of reports) shall only be made available to:

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(5.1) A court of common pleas in connection with any matter involving custody of a child as set forth in sections 5328 (relating to factors to consider when awarding custody) and 5329.1 (relating to consideration of child abuse and involvement with protective services) or temporary guardianship of a child under Chapter 56 (relating to standby and temporary guardianship) .

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Section 6. This act shall take effect in 60 days.

APPROVED--The 23rd day of October, A.D. 2018.

TOM WOLF