Title 231—RULES OF
PART I. GENERAL
[ 231 PA. CODE CH. 1915 ]
Proposed Amendment of Pa.R.C.P. Nos. 1915.3 and 1915.3-2
[47 Pa.B. 3333]
[Saturday, June 17, 2017]
The Domestic Relations Procedural Rules Committee is planning to propose to the Supreme Court of Pennsylvania the amendment of Pa.R.C.P. Nos. 1915.3 and 1915.3-2, for the reasons set forth in the accompanying explanatory report. Pursuant to Pa.R.J.A. No. 103(a)(1), the proposal is being published in the Pennsylvania Bulletin for comments, suggestions, or objections prior to submission to the Supreme Court.
Any reports, notes, or comments in the proposal have been inserted by the Committee for the convenience of those using the rules. They neither will constitute a part of the rules nor will be officially adopted by the Supreme Court.
Additions to the text of the proposal are bolded; deletions to the text are bolded and bracketed.
The Committee invites all interested persons to submit comments, suggestions, or objections in writing to:
Bruce J. Ferguson, Counsel
Domestic Relations Procedural Rules Committee
Supreme Court of Pennsylvania
Pennsylvania Judicial Center
PO Box 62635
Harrisburg, PA 17106-2635
All communications in reference to the proposal should be received by August 7, 2017. E-mail is the preferred method for submitting comments, suggestions, or objections; any e-mailed submission need not be reproduced and resubmitted via mail. The Committee will acknowledge receipt of all submissions.
By the Domestic Relations
Procedural Rules Committee
DAVID J. SLESNICK, Esq.,
TITLE 231. RULES OF CIVIL PROCEDURE
PART I. GENERAL
CHAPTER 1915. ACTIONS FOR CUSTODY OF MINOR CHILDREN
Rule 1915.3. Commencement of Action. Complaint. Order. Inquiry.
(a) Except as provided by subdivision (c), an action shall be commenced by filing a verified complaint substantially in the form provided by [Rule] Pa.R.C.P. No. 1915.15(a).
(b) An order shall be attached to the complaint directing the defendant to appear at a time and place specified. The order shall be substantially in the form provided by [Rule 1915.15(b)] Pa.R.C.P. No. 1915.15(c).
Official Note: See [§ 5430(d) of the Uniform Child Custody Jurisdiction and Enforcement Act,] 23 Pa.C.S. § 5430(d), relating to costs and expenses for appearance of parties and child, and 23 Pa.C.S. § 5471, relating to intrastate application of the Uniform Child Custody Jurisdiction and Enforcement Act.
(c) A claim for custody which is joined with an action of divorce shall be asserted in the complaint or a subsequent petition, which shall be substantially in the form provided by [Rule] Pa.R.C.P. No. 1915.15(a).
Official Note: [Rule] Pa.R.C.P. No. 1920.13(b) provides that claims which may be joined with an action of divorce shall be raised by the complaint or a subsequent petition.
(d) If the mother of the child is not married and the child has no legal or presumptive father, then a putative father initiating an action for custody must file a claim of paternity pursuant to 23 Pa.C.S. § 5103 and attach a copy to the complaint in the custody action.
Official Note: If a putative father is uncertain of paternity, the correct procedure is to commence a civil action for paternity pursuant to the procedures set forth [at Rule] in Pa.R.C.P. No. 1930.6.
[(e) A grandparent who is not in loco parentis to the child and is seeking physical and/or legal custody of a grandchild pursuant to 23 Pa.C.S. § 5323 must plead, in paragraph 9 of the complaint set forth at Rule 1915.15(a), facts establishing standing under § 5324(3). A grandparent or great-grand-parent seeking partial physical custody or supervised physical custody must plead, in paragraph 9 of the complaint, facts establishing standing pursuant to 23 Pa.C.S. § 5325.
(f)] (e) An unemancipated minor parent may commence, maintain or defend an action for custody of the minor parent's child without the requirement of the appointment of a guardian for the minor parent.
(f) After a party initiates a custody action, whether by complaint or petition:
(1) the court shall determine if:
(i) the child is the subject of a proceeding within the jurisdiction of the juvenile dependency court;
(ii) the child had been previously adjudicated dependent;
(iii) services have been provided to the child's family by a child protective services agency; or
(iv) an investigation of the child's family has been initiated by a child protective services agency.
Official Note: See Pa.R.J.C.P. No. 1120 for the definition of proceeding within the context of a juvenile dependency case.
(2) Upon indication of the existence of the circumstances described in subdivision (1)(i), the judge assigned to the custody action shall communicate directly with the dependency court judge and thereafter make a determination whether the custody action should be stayed or proceed in accordance with Pa.R.C.P. No. 1915.4.
(i) If the custody action is stayed by the custody court, the court shall indicate in its order staying the custody action the circumstances in which the stay will be lifted and the custody action may proceed.
(ii) Upon lifting of the stay, a party to the custody action may petition the custody court to schedule the initial in-person custody proceeding or the court on its own motion may issue a scheduling order.
(3) Upon indication of the existence of any circumstance described in subdivision (1)(ii)—(iv), the court shall proceed in a manner necessary to fulfill its obligation under 23 Pa.C.S. § 5328(a)(2.1) as to the parties, their household members, and the child when ordering any form of custody.
Official Note: See 23 Pa.C.S. §§ 5329.1 and 6340(a)(5.1) and 42 Pa.C.S. § 6307(a)(4.1).
Rule 1915.3-2. Criminal Record or Abuse History.
(a) Criminal Record or Abuse History Verification. A party must file and serve with [the] a complaint, [any] petition for modification, [any] counterclaim, [any] petition for contempt, or [any] count for custody in a divorce complaint or counterclaim, a verification regarding [any] the criminal record or abuse history of that party and anyone living in that party's household. The verification shall be substantially in the form set forth in subdivision (c) [below]. The party must attach a blank verification form to a complaint, counterclaim, or petition served upon the other party. Although the party served need not file a responsive pleading pursuant to [Rule] Pa.R.C.P. No. 1915.5, he or she must file with the court a verification regarding his or her own criminal record or abuse history and that of anyone living in his or her household on or before the initial in-person contact with the court (including, but not limited to, a conference with a conference officer or judge or conciliation, depending upon the procedure in the judicial district) but not later than 30 days after service of the complaint or petition. A party's failure to file a Criminal Record or Abuse History Verification may result in sanctions against that party. [Both] The parties shall file and serve updated verifications five days prior to trial.
(b) Initial Evaluation. At the initial in-person contact with the court, the judge, conference officer, conciliator or other appointed individual shall perform an initial evaluation to determine whether the existence of a criminal record or abuse history of [either] a party or a party's household member poses a threat to the child and whether counseling is necessary. The initial evaluation required by 23 Pa.C.S. § 5329(c) shall not be conducted by a mental health professional. After the initial evaluation, the court may order further evaluation or counseling by a mental health professional if the court determines it is necessary. Consistent with the best interests of the child, the court may enter a temporary custody order on behalf of a party with a criminal [history] record or a party with a household member who has a criminal [history] record, pending the party's or household member's evaluation and/or counseling.
Official Note: The court shall consider evidence of a criminal record or abusive history and the verification required by subdivision (c) presented by the parties. [There is no obligation for the court to conduct an independent investigation of the criminal record or abusive history of either party or members of their household.] The court should not consider ARD or other diversionary programs. When determining whether a party or household member requires further evaluation or counseling, or whether a party or household member poses a threat to a child, the court should give consideration to the severity of the offense, the age of the offense, whether the victim of the offense was a child or family member, and whether the offense involved violence.
(c) Verification. The verification regarding criminal record or abuse history shall be substantially in the following form:
CRIMINAL RECORD/ABUSE HISTORY VERIFICATION
I ______ , hereby swear or affirm, subject to penalties of law including 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities that:
1. Unless indicated by my checking the box next to a [crime below, neither I nor any other member of my household have been convicted or pled guilty or] listed crime or offense, neither I nor a member of my household has been convicted, pled guilty, pled no contest, or was adjudicated delinquent where the record is publicly available pursuant to the Juvenile Act, 42 Pa.C.S. § 6307, to any of the following crimes or offenses in Pennsylvania or a substantially equivalent crime or offense in [any other jurisdiction] another state, including pending charges:
Check all that apply Crime
Self Other household member Date of conviction, guilty plea, no contest plea or pending charges Sentence * * * * *
[ ] 23 Pa.C.S. § 6114
(relating to contempt for violation of protection order or agreement)
[ ] [ ] ______ ______ [ ] 42 Pa.C.S. § 62A14
(relating to contempt for violation of protection order or agreement)
[ ] [ ] ______ ______ [ ] Driving under the influence of drugs or alcohol [ ] [ ] ______ ______ [ ] Manufacture, sale, delivery, holding, offering for sale or possession of any controlled substance or other drug or device [ ] [ ] ______ ______
[2. Unless indicated by my checking the box next to an item below, neither I nor any other member of my household have a history of violent or abusive conduct, or involvement with a Children & Youth agency, including the following:
Check all that apply Self Other household member Date [ ] A finding of abuse by a Children & Youth Agency or similar agency in Pennsylvania or similar statute in another jurisdiction [ ] [ ] ______ [ ] Abusive conduct as defined under the Protection from Abuse Act in Pennsylvania or similar statute in another jurisdiction [ ] [ ] ______ [ ] Involvement with a Children & Youth Agency or similar agency in Pennsylvania or another jurisdiction.
[ ] [ ] ______ [ ] Other: _________________ [ ] [ ] ______]
2. Unless I have checked a box next to one of the following statements, none of the statements is true with regard to a member of my household, a child of mine, or me.
Check all that apply Self A household member Child [ ] Involvement with a Children & Youth Agency in Pennsylvania or similar agency in another state. [ ] [ ] [ ] [ ] A finding of abuse by a Children & Youth Agency in Pennsylvania or similar agency in another state.
[ ] [ ] [ ] [ ] An adjudication of dependency or delinquency under the Juvenile Act in Pennsylvania or similar law in another state.
Is the case active?______
[ ] [ ] [ ] [ ] A history of abusive conduct as defined under the Protection from Abuse Act in Pennsylvania or similar law in another state. [ ] [ ] [ ] [ ] A history of sexual violence or intimidation as defined under the Protection of Victims of Sexual Violence and Intimidation Act in Pennsylvania or similar law in another state. [ ] [ ] [ ]
3. Please list any evaluation, counseling or other treatment received following conviction or finding of abuse:
* * * * *
The Domestic Relations Procedural Rules Committee (''DRPRC'') is proposing an amendment to Pa.R.C.P. No. 1915.3, Commencement of Action. Complaint. Order, and Pa.R.C.P. No. 1915.3-2, Criminal Record or Abuse History. Act 107 of 2013 (''Act'') became effective on January 1, 2014, and directed that a custody court consider child abuse and the involvement of a party or child with a child protective services agency when making a child custody determination under 23 Pa.C.S. §§ 5321—5340. The Act further required the Department of Public Welfare, now the Department of Human Services, local county children and youth social services agencies, and the courts of common pleas to cooperate with the exchange of information necessary for the determination of a child custody order.
The Act amended not only Title 23 as it relates to child custody, but also the Child Protective Services Law, 23 Pa.C.S. §§ 6301—6375, and the Juvenile Act, 42 Pa.C.S. §§ 6301—6375. As the Act amended the domestic relations law and juvenile law, a subcommittee of members of the DRPRC and the Juvenile Court Procedural Rules Committee met to discuss the interplay between the Act, the two bodies of procedural rules, and the local practice in the courts of common pleas. The subcommittee met several times to discuss various resolutions to the statutory changes and challenges. The DRPRC previously published for public comment this Recommendation in the Pennsylvania Bulletin, 46 Pa.B. 3932 (July 23, 2016). The subcommittee reconvened to discuss the comments received and, subsequently, it revised the proposed amendments. The DRPRC is now republishing the Recommendation with those revisions.
In reviewing the comments, the DRPRC noted that some comments objected to the proposed requirement that the court makes inquiries into the dependency proceedings of the child. The comments suggested this type of action by a judge would be investigatory in nature and not an appropriate role for the judiciary. However, Act 107 of 2013 amended 23 Pa.C.S. § 5328(a)(2.1) and imposed upon the court the duty to determine the information outlined in 23 Pa.C.S. § 5329.1 relating to child abuse and involvement with protective services when awarding any type of custody. The statute now provides for information sharing between the county agency, the juvenile court, and the custody court to further the mandate. The proposed rule amendments are 'implementing rules' and, as such, provide a means for the custody court to obtain the statutorily mandated information from the child protective services agency and the juvenile court. With the dual issue of a significant number of pro se custody litigants and that not all custody parties are also parties to the companion juvenile dependency case, which would allow the party access to the juvenile docket and file, the subcommittee and the DRPRC agreed the custody judge might be the only person able to obtain all of the relevant dependency information to fulfill the statutory requirement imposed on the custody court prior to awarding custody to a party. As such, the proposed amendments maintain the judiciary's hands-on approach to acquiring the initial juvenile dependency information in Pa.R.C.P. No. 1915.3(f).
However, as the previously proposed amendment to Pa.R.C.P. No. 1915.3 required a stay of custody proceedings after determining that the child or child's family had involvement with the dependency court, the revised Recommendation provides for the custody court to communicate with the dependency court and afterward, the custody judge would determine if a stay was necessary for the custody action based on criteria outlined in proposed Pa.R.C.P. No. 1915.3(f). This revision provides flexibility for the custody court to determine how best to move the case forward.
In conjunction with these proposed amendments, the Juvenile Court Procedural Rules Committee is proposing amendments to the dependency rules to provide for a resolution of communicating the result of the terminated dependency action on the custody docket. Proposed amendments to Pa.R.J.C.P. 1409, 1515 and 1631 propose that the dependency court would generate a custody order when the court terminates supervision or dismisses a petition because of the availability of a ready, willing, and able parent which would be filed under seal in the prothonotary's office and served on the parties to the dependency action. In the event a party believes a modification of the custody order is necessary in the future, the action would proceed through the domestic relations court.
The DRPRC invites comments, concerns, and suggestions regarding this rulemaking proposal.
[Pa.B. Doc. No. 17-984. Filed for public inspection June 16, 2017, 9:00 a.m.]
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