Pennsylvania: Family Law

The following sections are included because it may often be the case that a victim of an online privacy invasion has recently divorced the perpetrator spouse, is considering a divorce/separation form the perpetrator, or has children with the perpetrator. Although evidence of misconduct is not appropriate in a divorce proceeding, the publication of sex photos/videos may well be considered in child custody proceedings, and considerations of domestic violence are appropriate when determining spousal support.

  1. Divorce

    1. Introduction

      Pennsylvania law provides for no-fault and fault-based divorce. Fault grounds include cruel treatment that endangers the life of health of a spouse as well as indignities that render the spouse’s “condition intolerable and life burdensome.” Accordingly, a WMC victim could try to bring in evidence regarding any actions by the perpetrator including, but not limited to, threats to publish private intimate images without the victim’s consent, and other improper behavior on the part of the victim’s spouse/former spouse

    2. Text of Statute(s)

      (1) 23 Pa. C.S. §3301(a) – Grounds for Divorce

      (a) Fault

      The court may grant a divorce to the innocent and injured spouse whenever it is judged that the other spouse has:

      (1) Committed willful and malicious desertion, and absence from the habitation of the injured and innocent spouse, without a reasonable cause, for the period of one or more years.

      (2) Committed adultery.

      (3) By cruel and barbarous treatment, endangered the life or health of the injured and innocent spouse.

      (4) Knowingly entered into a bigamous marriage while a former marriage is still subsisting.

      (5) Been sentenced to imprisonment for a term of two or more years upon conviction of having committed a crime.

      (6) Offered such indignities to the innocent and injured spouse as to render that spouse's condition intolerable and life burdensome.

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  2. Child Custody

    1. Introduction

      If the victim of the nonconsensual online publication of intimate photos/video is involved in a child custody dispute with the perpetrator, he or she may use evidence of this misconduct to establish that limiting the perpetrator’s custodial rights is in the best interests of the child(ren). It could also be used as leverage to obtain a favorable custody agreement.

    2. Text of Statutes

      (1) 53 Pa. S.C. §5328 – Factors to Consider when awarding custody

      1. Factors.--In ordering any form of custody, the court shall determine the best interest of the child by considering all relevant factors, giving weighted consideration to those factors which affect the safety of the child, including the following:

        (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.

      2. Gender neutral.--In making a determination under subsection (a), no party shall receive preference based upon gender in any award granted under this chapter.
    3. Cases

      1. K.G. v. E.D., Case Nos.2982 EDA 2013, 3128 EDA 2013, 2014 WL 10556359 (Pa. Sup. Ct. Dec. 30, 2014).

        • Procedural Posture: Cross-appeal from entry of order awarding joint physical and legal custody of daughter.
        • Law: Child Custody law
        • Facts: Child was born out of wedlock to mother and father, who was married to another woman. Mother initially considered giving child up for adoption to father and wife, but decided against it. Father and wife had primary custody of the child and engaged in pattern of conduct that interfered with mother’s visitation and relationship with the child, including withholding medical information, failing to provide clothing for the child, refusing additional visitation even when they needed child care, hiring private investigators to follow the mother, and sharing information with third parties so they could use it to attack mother online. They also accused the mother (online) of being a prostitute, having STDs, and using drugs. On one occasion, the father screamed at the mother and threatened her and pushed her out the door of his home, resulting in the mother obtaining a protection from abuse order.1
        • Outcome: Based on these facts, the appellate court concluded that it was error for the trial court to award joint custody to the mother and father, and directed that the mother be given sole legal custody and primary physical custody of the child.2
        • Special Notes: The appellate court considered the father’s online abuse and harassment of the mother as a factor supporting the court’s conclusion that it was in the best interests of the child for the mother to have primary custody of the child.
    4. Practice Pointers

      • If the victim and perpetrator have a child together, the perpetrator’s threatening and abusive behavior, in person or via the Internet, can significantly impact a court’s analysis of what custodial arrangement is in the best interests of the child.
      • Because custody hearings are usually contentious “he said she said” affairs, it is advisable to keep a written record of incidents that support your custody claim, including copies of threatening or harassing communications.
    1. K.G. v. E.D., Case Nos.2982 EDA 2013, 3128 EDA 2013, 2014 WL 10556359, at *7-9 (Pa. Sup. Ct. Dec. 30, 2014).
    2. Id. at *10.
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