THE COURTS
ERIE COUNTY
Custody Hearing Officer Pilot Program, Suspension of 1915.4-4, Amendment of 1915.4-1(a), 1915.4-3, and 1915.27 and Adoption of 1915.4-2 of the Rules of Civil Procedure; Doc. No. 90051-17
[47 Pa.B. 7440]
[Saturday, December 9, 2017]
Order And Now, to wit, this 20th day of November, 2017, it is hereby Ordered that Erie County Local Rule of Civil Procedure 1915.4-4 is suspended while the Court operates a pilot program to determine if utilization of a hearing officer is an effective process for custody actions filed in Erie County. For the duration of the pilot program, Local Rule 1915.4-1(a), 1915.4-3, and 1915.27 shall be amended as follows. To further effectuate the pilot program, Local Rule 1915.4-2 shall be adopted.
This Order shall be processed in accordance with Pa.R.J.A. 103(d) and shall be effective January 1, 2018 or 30 days after the date of publication in the Pennsylvania Bulletin, whichever occurs later.
JOHN J. TRUCILLA,
President JudgeRule 1915.4-1. Hearing Procedure. Bypass Custody Conciliation Conference.
(a) [Erie County shall utilize a custody conciliation conference as an initial non-record proceeding as set forth at Local Rule 1915.4-3.] Complaints for custody or petitions for modification shall initially proceed through the Office of Custody Conciliation of Erie County, Pennsylvania. Except in relocation cases subject to Local Rule 1915.17, partial custody and supervised physical custody cases subject to Local Rule 1915.4-2, and Section (b) of this rule, custody actions shall proceed in accordance with Pa.R.C.P. 1915.4-3.
(b) A party may present a motion to bypass the [custody conciliation] office conference to the duty judge during motion court pursuant to Local Rule 1915.13. A motion to bypass the [custody conciliation] office conference may be granted in cases wherein:
(1) there are complex questions of law, fact or both; or
(2) there are serious allegations affecting the child's welfare.
Rule 1915.4-2. Office Conference. Proceedings.
(a) Except as provided for at Local Rule 1915.4-1, all custody complaints and petitions for modification shall initially be conciliated by a conference officer at an office conference.
(b) The office conference is not a hearing but an opportunity for parties to reach agreement early in the custody process. No evidence or testimony is presented. Ordinarily, conferences shall not last more than one hour. The objectives of the office conference are:
(1) To facilitate immediate agreement and the entry of consent orders where the nature of the parties' dispute is minor and can be resolved quickly without the need for trial;
(2) To identify those cases not appropriate for resolution within the context of the conciliation process; and
(3) To identify the need for referral to outside professionals or agencies and to provide the parties with information and other assistance needed to accomplish such referral.
(c) Participation in the office conference:
(1) Children and Third Parties: Children and third parties, other than attorneys, shall not be present for or participate in conferences. Exceptions may be made at the discretion of the Court.
(2) Parties must participate in conferences in a cooperative manner and at all times adhere to the directives of the person conducting the conference.
(3) Prior to agreeing to a custody order, a party may consult with her or his attorney, and a reasonable opportunity to do so will be provided by the conference officer.
(d) An attorney who attends an office conference with a client will participate consistent with the following standards:
(1) The manner and scope of participation in conferences shall be determined by the conference officer;
(2) Attorneys shall fully cooperate with the efforts of the conference officer to facilitate the agreement of the parties;
(3) Counsel shall at all times behave in a professional manner and refrain from engaging in hostile or antagonistic conduct directed toward any conference participant;
(4) Attorneys shall advise their clients in a manner not disruptive of the conciliation process which may require consulting with the client outside the conference room;
(5) Attorneys shall not engage in legal argument, except that counsel may advise of legal issues relevant to the formation of an interim or consent order;
(6) Counsel shall not attempt to question the other party, present evidence or engage in conduct characteristic of any adversarial proceedings;
(e) All agreements reached at an office conference, whether a full or partial agreement, shall be reduced to a Consent Agreement and shall be signed by the parties immediately upon conclusion of the proceeding. If the parties partially agree or agree to reschedule the office conference, an interim order containing the agreed upon terms of the parties may be submitted to the duty judge for approval of the court.
(f) If no agreement is reached at the office conference, the case shall be promptly referred by the Custody Conciliation Office to Family Court Administration for trial; except that actions for partial custody or supervised physical custody shall be assigned to a hearing officer and shall proceed in accordance with Pa.R.C.P. 1915.4-2(b) and Local Rule 1915.4-2(g) below. The conference officer shall prepare a summary report detailing the parties' respective positions, which shall be filed and submitted to the hearing officer and the parties.
(g) Hearing before the Hearing Officer.
(1) In accordance with Pa.R.C.P. 1915.4-2, parties, after an unsuccessful office conference, will be scheduled for a custody hearing before a hearing officer.
(2) A pretrial order will be issued which directs parties to submit a pretrial narrative statement and parenting plan. The pretrial narrative statement and parenting plan is due ten (10) days prior to the scheduled hearing date and may be dropped off or mailed to the Custody Conciliation Office at the Erie County Courthouse.
(3) Continuance requests for custody hearings will be considered only if made in writing and containing the written consent of all parties. Such requests shall be presented to the Custody Office for consideration by the hearing officer.
(4) The hearing shall be conducted in accordance with Pa.R.C.P. 1915.4-2.
(5) The Court may issue an interim order consistent with the hearing officer's proposed order. If exceptions are filed, the interim order shall continue in effect.
(6) Exceptions may be filed to the custody hearing officer's report and proposed order pursuant to Pa.R.C.P. 1915.4-2. If filing exceptions, in addition to those requirements contained in Pa.R.C.P. 1915.4-2, Erie County requires the following:
i. A copy of the hearing officer's report and proposed order from which the exceptions are filed must be attached to the exceptions.
ii. When filing exceptions, a transcript must be ordered from the Court Reporter's Office in accordance with Erie County Rules of Judicial Adminis-tration 4001—4008. A copy of the completed Tran-script Request Form, along with a transcript deposit receipt or proof of transcript fee waiver, shall be attached to the original exceptions. The only time a transcript is not necessary is if the exceptions are not based on the testimony contained in the record. If both parties file exceptions to the report and proposed order of the hearing officer, they shall equally bear the cost of the transcript of testimony. If a party fails to pay for the transcript or obtain a waiver of the cost of the transcript, the court reporter shall notify the court, after which the exceptions of the non-paying party may be dismissed by the judge if the transcript was needed for determining the exceptions.
iii. The original exceptions shall be timely filed with the Prothonotary's office at the Erie County Courthouse. Within twenty (20) days of filing the exceptions, a time stamped copy must be delivered to Court Administration.
iv. The party filing exceptions must also serve a time stamped copy on the opposing party or that party's counsel of record.
v. Once exceptions and all related documents are filed with the Prothonotary and a copy is provided to Court Administration, argument on the exceptions will be placed on the next available argument list for an assigned judge. The Court will issue an order and serve notice on all parties of the date and place of argument.
Rule 1915.4-3. [Custody Conciliation Conference.] Non-Record Proceedings. Trial.
[(a) Except as provided for at Local Rule 1915.17, all custody complaints and petitions for modification shall be initially referred to the Office of Custody Conciliation of Erie County, Pennsylvania for a custody conciliation conference before a custody conciliation officer.
(b) The Conciliation Conference is not a hearing but an opportunity for parents to reach agreement early in the custody process. No evidence or testimony is presented. Ordinarily, conferences shall not last more than one hour. The objectives of the Conciliation Conference are:
(1) To facilitate immediate agreement and the entry of consent orders where the nature of the parties' dispute is minor and can be resolved quickly without the need for trial;
(2) To identify those cases not appropriate for resolution within the context of the conciliation process; and
(3) To identify the need for referral to outside professionals or agencies and to provide the parties with information and other assistance needed to accomplish such referral.
(c) All agreements reached at a Conciliation Conference, whether a full or partial agreement, shall be reduced to a Consent Agreement and shall be signed by the parties immediately upon conclusion of the proceeding. If the parties partially agree or agree to reschedule the custody conciliation conference, an interim order containing the agreed upon terms of the parties may be submitted to the duty judge for approval of the court. The parties' consent to an interim order shall not constitute the waiver to a de novo trial for any issue.
(d) If no agreement is reached at the conciliation conference, the case shall be promptly referred by the Custody Conciliation Office to Family Court Administration for trial. The conciliation officer shall prepare a summary report detailing the parties' respective positions, which shall be filed and submitted to the court and the parties.
(e) The Custody Conciliation Officer may refer custody matters directly to the Court if appropriate.
(f) Participation in Conciliation Process:
(1) Children and Third Parties: Children and third parties, other than attorneys, shall not be present for or participate in custody conferences. Exceptions may be made at the discretion of the Court.
(2) Parties must participate in conferences in a cooperative manner and at all times adhere to the directives of the person conducting the conference.
(3) Prior to agreeing to a custody order, a party may consult with her or his attorney, and a reasonable opportunity to do so will be provided by the conciliator.
(g) An attorney who attends a Conciliation Conference with a client will participate consistent with the following standards:
(1) The manner and scope of participation in conferences shall be determined by the conciliator;
(2) Attorneys shall fully cooperate with the efforts of the custody conciliator to facilitate the agreement of the parties;
(3) Counsel shall at all times behave in a professional manner and refrain from engaging in hostile or antagonistic conduct directed toward any conference participant;
(4) Attorneys shall advise their clients in a manner not disruptive of the conciliation process which may require consulting with the client outside the conference room;
(5) Attorneys shall not engage in legal argument, except that counsel may advise of legal issues relevant to the formation of an interim or consent order;
(6) Counsel shall not attempt to question the other party, present evidence or engage in conduct characteristic of any adversarial proceedings;
(h) At any time during the conciliation process the conciliator may terminate the proceedings and refer the case to court.]
Non-Record Proceedings governed by Pa.R.C.P. 1915.4-3 shall follow the office conference process detailed in Local Rule 1915.4-2, paragraphs (a)—(f).
Rule 1915.27. Cancellation of Custody Proceedings.
(a) A scheduled [custody conciliation] office conference and/or hearing before a hearing officer may not be cancelled without the written consent of the parties, or leave of court. If a responding party does not consent to cancel [a conciliation] an office conference or hearing, a motion to cancel may be presented in motion court by the requesting party with proper notice pursuant to Local Rule 440.
(b) If none of the parties appear for a scheduled [custody conciliation] office conference, the [conciliation] conference officer will prepare and send a proposed Order to the duty judge that indicates the [custody conciliation] office conference is cancelled, and that the pleading is dismissed without prejudice.
(c) If any one party fails to appear for a scheduled [custody conciliation] office conference and all parties have been served, the appearing party or parties may:
(1) reschedule the [custody conciliation] office conference; [or]
(2) in the case of an initial complaint or petition for modification of an existing order seeking sole custody or primary physical custody, request an immediate referral for trial;
(3) in the case of an initial complaint or petition for modification of an existing order seeking partial custody and/or supervised physical custody, request an immediate referral for a hearing before a hearing officer; or
(4) request dismissal of the pleading without prejudice.
If the appearing party or parties request to reschedule the [custody conciliation] office conference, the appearing party or parties are responsible for serving notice of the rescheduled conference. If the appearing party requests an immediate referral for a trial, the case shall be promptly referred by the Custody Conciliation Office to Family Court Administration for scheduling of a trial. If the appearing party requests an immediate referral for a hearing before a hearing officer, the case shall be promptly referred by the Custody Conciliation Office to the hearing officer for scheduling of a hearing.
(d) If the complaint or petition has not been served, the [conciliation] office conference may be rescheduled at the request of the appearing party or parties. The [custody conciliation office] Custody Conciliation Office will prepare a new notice and order to be filed and served by the appearing party or parties, along with the petition and complaint and other documents required to be filed with the complaint.
(e) A scheduled [de novo] trial shall not be cancelled without leave of court. A motion to cancel the [de novo] trial shall be presented to the judge assigned to the custody trial. A scheduled hearing before a hearing officer shall not be cancelled without leave of court. A motion to cancel the hearing before a hearing officer shall be presented to the family motion court judge. If all parties agree to the [trial's] cancellation, signed consent of the parties shall be attached to the motion.
[Pa.B. Doc. No. 17-2015. Filed for public inspection December 8, 2017, 9:00 a.m.]
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