THE COURTS

Title 231—RULES OF
CIVIL PROCEDURE

PART I. GENERAL

[ 231 PA. CODE CH. 1915 ]

Proposed Amendment of Pa.R.C.P. Nos. 1915.3 and 1915.3-2

[46 Pa.B. 3932]
[Saturday, July 23, 2016]

 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
Fax: 717-231-9531
domesticrules@pacourts.us

 All communications in reference to the proposal should be received by November 1, 2016. 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., 
Chair

Annex A

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.

 (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] 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)] 23 Pa.C.S. § 5324(3) in paragraph 9 of the complaint set forth in Pa.R.C.P. No. 1915.15(a). A grandparent or great-grandparent 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 in paragraph 9 of the complaint set forth in Pa.R.C.P. No. 1915.15(a).

 (f) 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.

 (g) Prior to the initial in-person custody proceeding as set forth in Pa.R.C.P. No. 1915.4(a), whether the action has been commenced by a complaint or petition, the court shall ascertain if the child, who is the subject of the custody action, has a court active juvenile case or is otherwise involved with a child protective services agency.

 (1) If the court determines the child is the subject of an active juvenile case, the court shall:

 i. enter an order temporarily staying further custody proceedings for 30 days; and

 ii. refer the custody action to the presiding juvenile judge for further consideration by the juvenile court.

 (2) Upon expiration of the 30-day stay, the plaintiff/petitioner in 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, unless the juvenile court issues an order relative to the custody action.

 Official Note: See 23 Pa.C.S. §§ 5329.1 and 6340(a)(5.1) and 42 Pa.C.S. § 6307(a)(4.1). Notwithstanding the court's inquiry under this subdivision, additional information may be necessary to fulfill the court's obligation under 23 Pa.C.S. § 5328(a)(2.1) as to the parties, their household members, and the child.

Rule 1915.3-2. Criminal Record or Abuse History.

 (a) Criminal Record or Abuse History Verification. A party must file and serve with the complaint, [any] a petition for modification, [any] a counterclaim, [any] a petition for contempt or [any] a count for custody in a divorce complaint or counterclaim, a verification regarding any 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 or abuse history of either 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 or a party with a household member who has a criminal history, 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:

(Caption)
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] a listed crime or offense, neither I nor [any other] a member of my household [have] has been convicted [or], pled guilty [or], 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. Where?: _________________	[  ]	[  ]	______
[  ]	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. Where?: _________________	[  ]	[  ]	[  ]
[  ]	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: ______

_______________________________________________

 4. If any conviction above applies to a household member, not a party, state that person's name, date of birth and relationship to the child. _____________________________________

_______________________________________________

 5. If you are aware that the other party or members of the other party's household has or have a criminal record/abuse history, please explain: _____________________________________

_______________________________________________

 I verify that the information above is true and correct to the best of my knowledge, information or belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities.

 _________________
Signature

 _________________
Printed Name

PUBLICATION REPORT
Recommendation 154

 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 mandated 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 in 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 identified two key issues: (1) how to resolve concurrent pending actions for child custody and dependency; and (2) communicating resolution of terminated dependency cases in the context of a custody order.

 Regarding the first issue, frequently custody cases are initiated or requests for modification of existing custody orders are made when a child is removed from a home by a county children and youth social services agency. These contemporaneous custody and dependency cases may be problematic with respect to court resources, the parties' ability to defend or prosecute both actions, and possibly inconsistent results due to a number of factors, including legal representation, expert witness availability, and other third party testimony.

 The Rules Committees believe the domestic relations judge and the juvenile court judge are in the best position to determine how a case should proceed. Therefore, the DRPRC is proposing an amendment to Pa.R.C.P. No. 1915.3 requiring the court to ascertain prior to the initial custody proceeding whether the subject child or children of the custody action have a court active juvenile case or is otherwise involved with a child protective services agency. If the court determines an active juvenile case is pending, the rule would permit the domestic relations judge to temporarily stay a custody proceeding for 30 days and refer the case to the juvenile judge for review and appropriate action, including consolidation. In the event the juvenile judge takes no action, the temporary stay is terminated automatically and the custody case may proceed as usual.

 In addition, the DRPRC is proposing the Criminal Record/Abuse History form in Pa.R.C.P. No. 1915.3-2 be amended to include additional party disclosures regarding sexual violence and intimidation. Paragraph 2 of the form document has been revised to include clarifying the disclosures related to juvenile court and child protective services involvement by the parties and child.

 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 the second key issue: communicating the result of the terminated dependency action by way of a custody order. Proposed amendments to Pa.R.J.C.P. 1515 and 1631 propose that the dependency court generate a custody order when court supervision is terminated that would be filed 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 can proceed through the domestic relations court.

 The DRPRC invites comments, concerns, and suggestions regarding this rulemaking proposal.

[Pa.B. Doc. No. 16-1245. Filed for public inspection July 22, 2016, 9:00 a.m.]

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