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PA Bulletin, Doc. No. 22-191

THE COURTS

Title 231—RULES OF
CIVIL PROCEDURE

PART I. GENERAL

[ 231 PA. CODE CH. 1915 ]

Order Amending Rule 1915.11 of the Pennsylvania Rules of Civil Procedure; No. 729 Civil Procedural Rules Docket

[52 Pa.B. 826]
[Saturday, February 5, 2022]

Order

Per Curiam

 And Now, this 20th day of January, 2022, upon the recommendation of the Domestic Relations Procedural Rules Committee; the proposal having been published for public comment at 50 Pa.B. 3834 (August 1, 2020) and 51 Pa.B. 1013 (February 27, 2021):

 It is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Rule 1915.11 of the Pennsylvania Rules of Civil Procedure is amended in the attached form.

 This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective April 1, 2022.

 Additions to the rule are shown in bold and are underlined.

 Deletions from the rule are shown in bold and brackets.

Annex A

TITLE 231. RULES OF CIVIL PROCEDURE

PART I. GENERAL

CHAPTER 1915. ACTIONS FOR CUSTODY OF MINOR CHILDREN

Rule 1915.11. [Appointment of Attorney for Child. Interview of Child. Attendance of Child at Hearing or Conference] Appointing Child's Attorney. Child Interview. Child Attending Proceedings.

 [(a) The court may on its own motion, or the motion of a party, appoint an attorney to represent the child in the action. Counsel for the child shall represent the child's legal interests and zealously represent the child as any other client in an attorney-client relationship. Counsel for the child shall not perform the role of a guardian ad litem or best interests attorney. The court may assess the cost of the child's attorney upon the parties in such proportions as the court deems appropriate or as otherwise provided by law. The order appointing an attorney to represent the child shall be in substantially the form set forth in Pa.R.C.P. No. 1915.19.

 (b) The court may interview a child, whether or not the child is the subject of the action, in open court or in chambers. The interview shall be conducted in the presence of the attorneys and, if permitted by the court, the parties. The attorneys shall have the right to interview the child under the supervision of the court. The interview shall be part of the record.

 (c) Unless otherwise directed by the court, the child who is the subject of the action shall not be required to attend a hearing before the court or a conference.

 Note: A party may bring a child to a conference or hearing but, in the absence of an order of court, is not required to do so.]

 (Editor's Note: Pa.R.C.P 1915.11 as printed in 231 Pa. Code reads ''Official Note'' rather than ''Note.'')

 (a) Appointing Child's Attorney.

 (1) Upon its own motion or a party's motion, the court may appoint an attorney to represent a child who is the subject of the action.

 (2) The court's order appointing the child's attorney, as provided in Pa.R.Civ.P. 1915.19, may apportion to the parties the reasonable cost of the child's attorney.

 (3) The child's attorney:

 (i) shall represent the child's legal interest;

 (ii) shall zealously represent the child as any other client in an attorney-client relationship; and

 (iii) shall not act as the child's guardian ad litem or best interest attorney as provided in Pa.R.Civ.P. 1915.11-2.

 (b) Child Interview.

 (1) The court may interview a child in open court or in chambers.

 (2) If the court interviews the child, the court shall conduct the child's interview on the record.

 (3) If permitted by the court, a party's attorney or a party may observe the interview.

 (4) As part of the interview process, the court shall permit either:

 (i) the parties' attorneys to question the child under the court's supervision, provided that all parties are represented by an attorney; or

 (ii) a party's attorney or a self-represented party to submit to the court written questions, which the court may include in its interview.

 (c) Child Attending Proceedings. Unless ordered by the court or otherwise compelled to testify on the record, a child's attendance at a conference, hearing, or trial is not required.

[Explanatory] Comment—1991

 [Rule] Pa.R.Civ.P. 1915.15([b]c) provides a form of order to appear at a conference or hearing in [an action for custody, partial custody or visitation of minor children. Prior to its recent amendment, the form required that one or more children who are the subject of the action attend the hearing or conference] a custody action.

 However, the presence of a child in court is not always necessary or desirable. The experience may be traumatic and disruptive. Consequently, the child should not be required to attend a hearing or conference in every case. When the presence of a child is required and the custodial party does not voluntarily bring the child, the court may issue an order for the child's attendance.

 Subdivision (c) has been added to [Rule] Pa.R.Civ.P. 1915.11 to provide that, in the absence of an order of court, a child who is the subject of the action need not be brought to a conference or a hearing before the court. The form of order to appear provided by [Rule] Pa.R.Civ.P. 1915.15([b]c) has been revised to implement this policy.

Comment—2022

 Although the rule states that a child is not required to attend a conference, hearing, or trial, the terminology used by a judicial district may vary for these court proceedings. The rule's intent is to limit the child's participation to only those proceedings in which the child will actively participate as a witness or in the court's interview.

SUPREME COURT OF PENNSYLVANIA
DOMESTIC RELATIONS PROCEDURAL RULES COMMITTEE

ADOPTION REPORT

 On January 20, 2022, the Supreme Court of Pennsylvania adopted Recommendation 2 of 2021 of the Domestic Relations Procedural Rules Committee (Committee). The Recommendation amends Pa.R.Civ.P. 1915.11. This rule addresses the appointment of a child's attorney in a custody case, the child interview by the court, and a child attending various court proceedings. The Committee has prepared this Adoption Report describing the rulemaking process. An Adoption Report should not be confused with Comments to the rules. See Pa.R.J.A. 103, Comment. The statements contained in this Adoption Report are those of the Committee, not the Court.

 The Committee received correspondence suggesting Pa.R.Civ.P. 1915.11(b) infringes upon a self-represented party's ability to represent himself or herself by not permitting the self-represented party to participate in the child interview in the same manner as a represented party through counsel. Currently, Pa.R.Civ.P. 1915.11(b) provides that the court may interview the child in the presence of the parties' attorneys and, if the court permits, the parties. Moreover, the current rule permits a party's attorney to question the child, but not a self-represented party, which was the basis for the proposed rulemaking. This specific provision creates the appearance of a disadvantage to the self-represented party by not allowing that party to put forth questions to the child that are relevant to the self-represented party's case and, presumably, the child's best interest. The Committee agreed this distinctively dissimilar treatment between represented and self-represented parties could impact the court's best interest analysis. Bearing in mind the court's overall concern in child custody cases is the child's best interest, including the process of determining the child's best interest, the Committee believes the Recommendation strikes a balance between the self-represented party's right to present evidence for determining the child's best interest and the child's best interest in addressing the court's questions without intimidation or fear.

 The Recommendation does not substantively amend subdivisions (a) and (c) with revisions in those subdivisions limited to stylistic changes. Instead, the Recommendation's substantive amendments are included in subdivision (b), which has been restyled, as well. This subdivision provides the court with two options for the parties or counsel to participate in the child interview. First, subdivision (b) incorporates the current rule's provision of permitting an attorney to question the child under the court's supervision into subdivision (b)(4)(i) but adds the qualifier requiring that all parties are represented; and second, the Recommendation adds subdivision (b)(4)(ii) as an additional option for the court to allow counsel and a self-represented party to submit to the court written questions that are directed to the child, which the court may include in its child interview.

 The amendment becomes effective April 1, 2022.

[Pa.B. Doc. No. 22-191. Filed for public inspection February 4, 2022, 9:00 a.m.]


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