In January 2011, the new custody act became effective and changed the landscape of child custody in Pennsylvania. However, the Rules of Civil Procedure pertaining to child custody tracked the custody statutes previously in effect and created inconsistency. The much anticipated revised custody rules were promulgated and became effective September 3.
The new rules have provided the necessary bridge between the custody statute and the most effective application and interpretation of same. This article highlights many of the changes to the child custody rules.
Rule 1915.1 has been amended so that the definitions in the rules are consistent with the definitions in the new custody act. Rule 1915.3 as well as Rule 1915.15(a) provide that a grandparent who is not in loco parentis to the child and is seeking a form of custody must plead facts establishing standing in the complaint for custody.
When the custody act became effective, debate surrounded Section 5329 pertaining to the criminal background of the parties and household members of the parties. Section 5329 requires the trial court to consider each parent's and household member's criminal convictions of the crimes enumerated under Section 5329(a) in custody cases. Initially, when the new act was passed, Subsection (c) of Section 5329 was problematic because it was not clear whether the court could conduct an initial evaluation regarding whether a party or household member posed a risk to the child or children at issue. In April 2012, SB 1167 was passed and amended Subsection (c) and rewrote that section as follows: "At the initial in-person contact with the court, the judge, conference officer or other appointed individual shall perform an initial evaluation to determine whether the party or household member who committed an offense … poses a threat to the child and whether counseling is necessary." Subsection (b) of new Rule 1915.3-2 reiterates this language regarding initial evaluations. Even after the revisions to the statute, questions remained whether the court could enter a temporary custody order on behalf of a party with a criminal history or a party with a household member with a criminal history pending an evaluation of the party or the household member. Subsection (b) under Rule 1915.3-2 allows the court to enter such temporary orders. Subsection (a) provides that "the petitioner must file and serve with the complaint, or any petition for modification, a verification regarding any criminal or abuse history of the petitioner and anyone living in the petitioner's household." The rules also provide a form for criminal records/abuse history verification, and directs that the petitioner "must attach a blank verification form to a complaint or petition served upon the respondent." This is a new requirement for all petitioners. The respondent must also file with the court a verification of any criminal or abuse history of the respondent or anyone living in his or her household on or before the initial in-person contact with the court, "but no later than 30 days after service of the complaint or petition upon the respondent." The parties "shall file and serve updated verifications five days prior to the trial," according to the rule, as well.
Prior to the promulgation of the new custody rules, there was debate among practitioners and the court as to whether diversionary programs and Accelerated Rehabilitative Disposition should be considered as past criminal conduct. Under the note to Rule 1915.3-2, it states: "The court should not consider ARD or other diversionary programs." The note also states that the court has no obligation to conduct an independent investigation as to the criminal history of the parties and household members. This, too, answered the question raised by family law practitioners and the court prior to the promulgation of the new custody rules.
Rule 1915.10 states: "The court's decision shall include safety provisions designed to protect an endangered party or a child in any case in which the court has found that either is at risk of harm." In the explanatory comment to Rule 1915.10, examples of safety provisions include: "supervised physical custody, supervised or neutral custody exchange location, neutral party presence at custody exchange, telephone or computer-facilitated conduct with the child, no direct contact between the parties."
Under the new custody act, ambiguity arose regarding the scope and duties of counsel for children and guardians ad litem. The act was not clear as to the role that the guardian ad litem played in custody cases. It was not clear whether the guardian ad litem was to act as the lawyer for the child or the best interest attorney. With the revision to Rule 1915.11(a) and the promulgation of new Rule 1915.11-2, it is clear that a counsel for the child advocates for the child's position and the child's legal interests, as he or she is the child's attorney, and a guardian ad litem represents the child's best interest and is not the advocate for the child's legal interest. Rule 1915.11(a) states: "Counsel for the child shall not perform the role of a guardian ad litem or best interests attorney." Rule 1915.11-2 states: "The guardian ad litem shall not act as the child's counsel or represent the child's legal interest." With the promulgation of these rules, the roles of the counsel for the child and guardian ad litem are now clear.
To resolve any inconsistency between the new rules and the existing custody act regarding guardians ad litem, Rule 1915.25 suspends the portions of Section 5334 that are inconsistent with the new custody rules. The note to Rule 1915.11-2 echoes what is provided in Rule 1915.25. In Rule 1915.25, it states that Section 5334 "is suspended insofar as it (1) requires that a guardian ad litem be an attorney, (2) permits the guardian ad litem to represent both the best interests and legal interests of the child, (3) provides the guardian ad litem the right to examine, cross-examine, present witnesses and present evidence on behalf of the child, and (4) prohibits the guardian ad litem from testifying." These changes were welcomed by the bench and bar.
Another significant change to the custody rules pertains to relocation. The rule regarding relocation is found at 1915.17. For the most part, Rule 1915.17 is consistent with the relocation section in the new custody act under Section 5337. Prior to the promulgation of the new rules, it was unclear as to whether the statutory notice requirement and relocation procedures applied in cases where a custody order did not already exist. By reading Rule 1915.17, it is clear that the relocation rules and statutes apply to situations where a custody order does not exist. Interestingly, under Rule 1915.17(c), it states: "If no objection to a proposed change of a child's residence is timely served after notice, the proposed party may change the residence of the child and such shall not be considered a 'relocation' under statute or rule." In such a scenario, this leaves the relocating party with the choice of merely moving with the child without an order or obtaining an order. Rule 1915.17 provides the process by which a party proposing to relocate may obtain an order in a situation where the responding party has not served a notice of objection. As a practitioner's tip, the most conservative route would be to seek confirmation of the proposed relocation and obtain an order reflecting same. The relocation rule provides the procedures to be followed and lists all of the filings required in relocation cases. The rule further provides that the procedure "in any relocation case shall be expedited ... [and] there shall be no requirement for parenting education or mediation prior to an expedited hearing before a judge."
Practitioners and the bench should pay close attention to the new custody rules as the procedures and requirements for pleadings and orders have changed in child custody cases.
Michael E. Bertin is a partner with Obermayer Rebmann Maxwell & Hippel. Bertin is co-author of the book Pennsylvania Child Custody Law, Practice, and Procedure. Bertin is the chair of the family law section of the Philadelphia Bar Association, co-chair of its custody committee, and chair of the rules committee and member of the council of the family law section of the Pennsylvania Bar Association.
The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.
Reprinted with permission from the October 8, 2013 edition of The Legal Intelligencer © 2013 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 347-227-3382, email@example.com or visit www.almreprints.com. # 201-10-13-04