Fixing Child Custody: Kayden’s Law May Go Too Far
Commentary by Frank P. Cervone
The Pennsylvania Senate and many in the family law community have been engaged in a heated debate for months on
proposed child custody legislation known as “Kayden’s Law.” At stake is how to make the courts more responsive to the
needs of children and more sensitive to the traumatic familial experiences that children may suffer.
What’s wrong with custody courts? Plenty. Dockets are overloaded and cases delayed, often by years. Few counties have
mechanisms to conduct thorough, neutral custody evaluations, so unless the parties can pay for these expensive studies, the
courts are left to the narratives presented by the litigants. With no right to court-appointed counsel, thousands of parents
appear pro se. Reforms are needed, but Kayden’s Law will over-correct a system because of a singular, horrible case.
A host of child and parent advocates have expressed concern and even opposition to the proposed reforms. The ACLU PA’s Elizabeth Randol, observed that “It is a sad truth that parents in custody battles use allegations of child abuse to gain leverage in those battles. Unfortunately, [Senate Bill] 78 risks turning that weapon into an arsenal, making it extremely likely that a poor—or merely not-wealthy—parent accused of child abuse will never see their child again.”
For many, the underlying case demonstrates the maxim that the “bad facts makes bad law.” A year into a bitter custody
battle, a 2017 Protection from Abuse order restricted a father’s interactions with the child’s mother. The father was
known to have anger issues since childhood, made worse by excessive drinking, self-medicating and violent outbursts.
Over several years, before and after the PFA order, the father had substantial and healthy involvement with his daughter
and four days of custody with the child on alternating weeks. While family members later shared that the father’s
outbursts eventually made the child afraid, there were no allegations of child abuse.
The final custody order in May 2018 reduced the father’s custody time from four days to one overnight on alternating
weekends. Tragically, in August 2018, on one of his scheduled visits, he brutally killed his 7-year-old daughter Kayden
and then himself. The child’s mother and family have been seeking the reforms embedded in Senate Bill 78 ever since.
The legislative sponsors suggest that the law will make fundamental change to Pennsylvania’s child custody law, by
requiring specific restrictions when a court finds a history of abuse or an ongoing risk of abuse. The bill also encourages
the courts to implement an annual training program for judges on child abuse and domestic violence, but does not
provide funding for the training.
In effect, Kayden’s Law would create an unworkable schema for supervision of custodial visits that will interfere with
healthful parent-child interactions. Nonprofessional supervisors are required in certain circumstances. While family
members and friends often provide valuable supportive childcare, kin are sometimes ill-equipped or inappropriate to
serve as visitation supervisors. The bill will limit a court’s discretion to evaluate supervisory candidates and to make
these judgments.
More importantly, the bill mandates professional supervision for a potentially large number of cases, which is unrealistic
given the limited availability and high cost of professional supervisors.
Present and ongoing risk to a child is a grave concern, but this remedy misses the mark. Courts and parties will be forced
to either ignore the requirement or create visitation barriers that are more harmful than helpful. Courts need discretion to
respond to and protect the needs of each child in their care.
Further, a requirement for the court to make a finding of “no-risk” prior to ending mandatory professional supervision is
only facially attractive, and will be problematic to administer and virtually impossible to satisfy for many litigants. Once
a presumption is “turned on” it is extremely hard to get it “turned off.” To make a clinical judgment that a party no longer
poses a risk of abuse, a psychologist or other evaluator must conduct clinical interviews, parent-child observations and
psychological testing. How many indigent and working-class litigants will be able to afford that kind of proof? Is it even
possible to definitively find no-risk?
Unlike in child welfare and juvenile justice, there are no mechanisms for case management or frequent court review of
cases in domestic relations. Restraining courts and burdening litigants with automatic presumptions and mandates will
leave many children and families without access to justice.
Current custody law makes the priority of child safety clear, requiring safety conditions if there is ongoing risk of harm.
Without any limit on the look-back in time or need for relevance to the custodial care, the proposed change raises due
process concerns, allowing restriction regardless of how old or irrelevant the conduct and regardless of who was involved.
As observed by the ACLU’s Randol, the proposed bill “specifically removes the requirement that a threat be ongoing.”
In 2013, the custody statute was amended to require the court to consider whether any party had a history of child abuse
findings or involvement with protective services. This revision had precisely the effect intended by Senate Bill 78—to
bring the history of abuse into the custody case—but without the mandate for a specific custodial condition or the
deprivation of judicial discretion.
A well-intentioned concern for a child’s safety is not always a benign, let alone salutary act, and does not necessarily
result in a safe child. It is well known that children-and-youth agency interventions can sometimes be misplaced and even
harmful. The gross disproportionality of adults of color who are subject to child abuse investigations and findings, and
the numbers of minority children who are removed from their families—facts that might get brought into a domestic
relations custody case as evidence of a history of risk—suggests that racism and other biases may be influencing the
process of child protection. Such is the possible effect of an overbroad approach to child safety. As observed by legal
services colleagues in a letter to the legislature, “the harm will disproportionately impact Black and brown mothers and
children, as well as those living in poverty.”
Senate Bill 78 also seeks to tie the hands of courts when it hears that a child is afraid. Current law considers the “the wellreasoned preference of the child” as one of the 16 factors custody courts must address in fashioning their custody orders. Allegations about a child’s preferences can be quite relevant, and the fears both well-reasoned and real. Indeed, we urge that children be believed and respected in their recollections of possibly abusive events and similar circumstances.
Rather than some automatic finding, these considerations are best left to thorough child-specific inquiry conducted by
high-quality forensic interviewers, trained custody evaluators, children’s legal representatives, and the courts, who are
appropriately constrained to record-evidence. Creating an irrebuttable presumption that a child’s fear “shall be considered
well-reasoned” will short-circuit considered judgment by the court, and may spawn a new layer of contentious litigation.
A caregiver’s relevant criminal history has long been an element of best interest decision-making. But Senate Bill 78
adds simple assault to the list of crimes. Tens of thousands of parents and caregivers have some form of simple assault
conviction on their criminal record—certainly not behaviors to be encouraged or condoned, but so often irrelevant to the
best interest custody determination.
There are very real questions about how custody courts are addressing domestic abuse and sexual violence, how they are
keeping children safe, and connecting families with mental health services, for both children and parents, and both
victims and perpetrators. There is little reliable research on the performance of courts and the experience of children in
high-conflict custody cases. Children often sustain lasting emotional trauma as a consequence of family strife. Senate Bill
78 works an over-correction that is well-intentioned but, without real study, is dangerously misguided and fails to address
how to ensure that parents and children actually get the supports they need.
Are there better alternatives? The safety and well-being of children are affected by the attention to and investments
made—or not made—in safe visitation/exchange sites, custody evaluation capacities, high- quality forensic interviews,
triage of the most challenging high-conflict cases, counseling alternatives for families seeking help, judicial training, and
improvements to the child abuse registry and appeals.
Children and families need real help in their lives, not barriers that fail to meet their needs. In calling for a better piece of
legislation, meaningful child-centered research, increased resources, and sensitivity to the unintended impact on
thousands of children and families, we do not mean to dishonor Kayden nor diminish the tragic outcome of the child’s
life. We all agree that children and their well-being should be the heart of the matter.
Source: Published March 19, 2021, in The Legal Intelligencer. Click HERE to access the article online.