THE COURTS
Title 231—RULES OF
CIVIL PROCEDURE
PART I. GENERAL
[231 PA. CODE CH. 1915]
Order Amending Rules 1915.11-2 and 1915.21 of the Pennsylvania Rules of Civil Procedure; No. 737 Civil Procedural Rules Docket
[53 Pa.B. 824]
[Saturday, February 11, 2023]
Order Per Curiam
And Now, this 27th day of January, 2023, upon the recommendation of the Domestic Relations Procedural Rules Committee; the proposal having been published for public comment at 50 Pa.B. 7007 (December 12, 2020) and re-published for public comment at 51 Pa.B. 6141 (September 25, 2021):
It is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Rules 1915.11-2 and 1915.21 of the Pennsylvania Rules of Civil Procedure are amended in the attached forms.
This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective April 1, 2023.
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 1915.11-2. [Appointment of Guardian Ad Litem] Guardian Ad Litem.
(Editor's Note: Pa.R.C.P. 1915.11-2 as printed in 231 Pa. Code reads ''Official Note'' rather than ''Note.'')
[(a) The court may, on its own motion or the motion of a party, appoint a guardian ad litem to represent the best interests of the child in a custody action. The guardian ad litem shall be a licensed attorney or licensed mental health professional. The guardian ad litem shall not act as the child's counsel or represent the child's legal interests. Prior to appointing a guardian ad litem, the court shall make a finding that the appointment is necessary to assist the court in determining the best interests of the child.
(b) The court may order either or both parties to pay all or part of the costs of appointing a guardian ad litem.
(c) The guardian ad litem shall file of record and provide copies of any reports prepared by the guardian ad litem to each party and the court not later than 20 days prior to trial. The admissibility of the report shall be determined at the hearing. Prior to disclosure to the parties of confidential information prohibited by 23 Pa.C.S. § 5336, the court shall make a determination of whether the information may be disclosed. The guardian ad litem shall attend all proceedings and be prepared to testify. The guardian ad litem shall be subject to cross-examination if called to testify by either party or the court.
(d) The order appointing a guardian ad litem shall be in substantially the form set forth in Rule 1915.21.
Note: 23 Pa.C.S. § 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.]
(This is entirely new text.)
(Editor's Note: The following text is proposed to be added and is printed in regular type to enhance readability.)
(a) Appointment.
(1) On its own motion or a party's motion, the court may appoint a guardian ad litem if the court finds that the appointment is necessary for determining the child's best interest.
(2) As set forth in Pa.R.Civ.P. 1915.21, the court's order appointing the guardian ad litem may apportion to the parties the reasonable cost of the guardian ad litem.
(b) Qualifications. The guardian ad litem shall be a licensed attorney or licensed mental health professional.
(c) Duties.
(1) As provided in 23 Pa.C.S. § 5334, which has been suspended in part by Pa.R.Civ.P. 1915.25, the guardian ad litem shall perform the duties as enumerated in Section 5334, including representing the child's best interest.
(2) The guardian ad litem shall not represent the child's legal interest or act as the child's legal counsel.
(d) Report. The guardian ad litem shall prepare a written report, which shall include specific recommendations relating to the child's best interest.
(1) Child's Statement.
(i) The written report may include a subject child's statement to the guardian ad litem that would be otherwise inadmissible as hearsay under the Pennsylvania Rules of Evidence, provided the requirements of Pa.R.E. 703 are satisfied.
(ii) A child's statement included in the written report under subdivision (d)(1)(i) shall not be considered substantive evidence.
(2) The guardian ad litem shall file the written report with the prothonotary, which shall become part of the record.
(3) Confidential. The guardian ad litem's filed report and a party's filed response to the report as provided in subdivision (d)(5) shall be confidential and shall not constitute a public record.
(4) The guardian ad litem shall provide the report to the parties and the court when filed but not later than 20 days prior to a hearing or trial or as otherwise ordered by the court.
(5) Comments. Objections.
(i) Within ten days of receiving the guardian ad litem's report, a party may file with the prothonotary and serve on the other party and the court:
(A) a comment to the report, which shall become part of the record; or
(B) an objection to the report's admissibility, in whole or in part, including a subject child's statement to the guardian ad litem.
(ii) The court shall determine the report's admissibility prior to the hearing or trial.
(6) Subject to Pa.R.Civ.P. 1915.11, a party may subpoena:
(i) an individual interviewed by the guardian ad litem or identified in the report to appear and testify at the hearing or trial; or
(ii) the guardian ad litem for the production of a document relied upon by the guardian ad litem in preparing the report.
(e) Testimony.
(1) When determined necessary by the trial court, the guardian ad litem shall participate in court proceedings by attending, and by providing sworn testimony if called to testify by a party or the court. The guardian ad litem shall not be permitted to provide argument, unsworn opinions, or unsworn testimony to the court.
(2) If called to testify by a party, the guardian ad litem shall be subject to cross-examination by opposing parties. If called to testify by the court, the guardian ad litem shall be subject to cross-examination by any party.
(3) Child's Statement.
(i) Except as precluded by the court in subdivision (d)(5)(ii), the guardian ad litem's testimony may include the subject child's statement to the guardian ad litem that would be otherwise inadmissible as hearsay under the Pennsylvania Rules of Evidence, provided the requirements of Pa.R.E. 703 are satisfied.
(ii) A child's statement included in the guardian ad litem's testimony under subdivision (e)(3)(i) shall not be considered substantive evidence.
(f) Order. The order appointing a guardian ad litem shall be substantially in the form set forth in Pa.R.Civ.P. 1915.21.
Comment: Subdivision (a)(1) states that the guardian ad litem may be appointed when ''the appointment is necessary.'' Such appointments should be limited to extraordinary cases in which the trial judge determines that the level of conflict is unusually high or that the parties will be absolutely unable to provide the court with the information necessary to evaluate and determine the subject child's best interests. Regardless of appointment of a GAL, the duty and responsibility to determine the best interests of the children involved lies solely with the trial judge.
The Supreme Court of Pennsylvania suspended 23 Pa.C.S. § 5334 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.
See 23 Pa.C.S. § 5336, prohibiting disclosure of certain records and information to parents and parties.
Subdivision (d)(1) and (e)(3) reference the requirements of Pa.R.E. 703. Rule 703 relates to the bases for expert opinion testimony. While the requirements of Rule 703 must be satisfied for any written report that includes statements made by a subject child, the guardian ad litem is not an expert witness and need not be qualified as an expert prior to testifying. However, the guardian ad litem remains subject to questions and cross-examination regarding qualifications and experience.
In addition, the guardian ad litem cannot serve as a mere conduit for hearsay or for the opinions of another person, including the subject child. The guardian ad litem cannot relate the opinion of a non-testifying witness unless the guardian ad litem has reasonably relied upon it. Upon appropriate objection from any party, the trial court shall strike any testimony or portion of the guardian ad litem's written report that is inadmissible as hearsay if the requirements for Pa.R.E. 703 are not met.
Subdivision (d)(6) provides that a party may subpoena an individual interviewed by the guardian ad litem, an individual that is identified in the guardian ad litem's report, or a document relied upon by the guardian ad litem in producing the report. The subdivision shall not be construed to limit a party's ability to subpoena other individuals or for the production of documents for a trial or hearing, or for discovery purposes, if the court had previously authorized discovery pursuant to Pa.R.Civ.P. 1915.5(c).
Rule 1915.21. Form of Order Appointing Guardian Ad Litem.
The order appointing a guardian ad litem in a child custody action pursuant to Rule 1915.11-2 shall be in substantially the following form:
(Caption)
ORDER OF COURT AND NOW, THIS ______ day of ______ , 20 ______ , it is hereby ordered as follows:
Pursuant to Pa.R.[C]Civ.P. No. 1915.11-2, ______ is appointed as guardian ad litem for the minor child ______ (D.O.B. ______ ) in connection with the civil proceedings related to the custody of the minor child.
The child's guardian ad litem shall represent the best interests of the child. The guardian ad litem shall not act as the child's attorney or represent the child's legal interests.
It is ordered and decreed that all relevant schools, police departments, hospitals and social service agencies including home and school agencies who have records, reports and/or information pertaining to the child relevant to the custody of the child, shall allow the guardian ad litem access to all files and records in its possession, custody or control and shall cooperate in responding to all relevant inquires. These files/records may include but are not limited to medical, psychological or psychiatric charts including evaluations and progress notes and records, X-rays, photographs, tests, test evaluations, intake and discharge summaries, police records, and school records including report cards, educational assessments and educational plans, relevant to this custody dispute and/or relevant to any special needs or requirements of the child. The guardian ad litem shall have the right to copy any part of the files and records maintained in connection with the child.
It is further ordered and decreed that the guardian ad litem shall be permitted to see and speak with the child, and family, medical and/or social service providers connected with this case, and take all steps appropriate to and consonant with this order.
The guardian ad litem shall provide copies of any reports prepared by the guardian ad litem to each party, or to their counsel, and to the court when filed but not later than 20 days prior to a hearing or trial or as otherwise ordered by the court.
The guardian ad litem shall attend all proceedings and be prepared to testify. The guardian ad litem shall be subject to cross-examination in accordance with Pa.R.Civ.P. 1915.11-2(e)(2) if called to testify [by either party or the court].
The fees for the guardian ad litem shall be paid as follows:
__________
__________This appointment shall terminate upon the entry of a final order resolving the petition pending as of the date of this order or as provided in subsequent order of court.
BY THE COURT:
__________
J.
SUPREME COURT OF PENNSYLVANIA
DOMESTIC RELATIONS PROCEDURAL RULES COMMITTEE
ADOPTION REPORTOn January 27, 2023, the Supreme Court of Pennsylvania amended Pa.R.Civ.P. 1915.11-2 and 1915.21, which address the appointment of a guardian ad litem (GAL) in a custody action, as authorized by 23 Pa.C.S. § 5334. Specifically, the amendments permit a GAL to include the subject child's statement to the GAL in the GAL's report, and to testify at trial about the statement as well, provided the requirements of the Pennsylvania Rule of Evidence 703 are satisfied. 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, cmt. The statements contained in this Adoption Report are those of the Committee, not the Court.
The Committee received a request for rulemaking on the admissibility of a child's statement to a GAL in a custody hearing or trial. The Rules of Civil Procedure provide for a GAL's appointment when the court finds that a GAL is necessary for the court to determine the child's best interest. As set forth in 23 Pa.C.S. § 5334(b), a GAL is required to meet with a child of an appropriate age to ascertain the facts. The GAL shall also interview potential witnesses, investigate facts and documents, and make specific recommendations in a written report to the court relating to the best interests of the child.
While meeting with the GAL, a child may make a statement to the GAL that could impact a court's best interest analysis. However, the Pennsylvania Rules of Evidence do not provide a categorical exception to Pa.R.E. 802 (Rule Against Hearsay) for a child's statement made to a GAL. Unlike dependency actions under the Juvenile Act, 42 Pa.C.S. §§ 6301 et seq., in which a hearsay statement may be admissible in dispositional hearings, similar statements in a child custody action do not have a similar statutory exception and, as such, are inadmissible unless an enumerated hearsay exception applies. Nevertheless, as a matter of practice, a child's statement is often included in a GAL's report or testimony in custody matters.
As reported to the Committee, the admissibility of a child's hearsay vis-á-vis a GAL varies from court to court. Some courts will allow the statement into evidence because it could impact the child's best interest. Other courts will disallow the statement as hearsay unless a hearsay exception applies. To remedy the disparate treatment of the child's statement to a GAL, the Committee proposed amending the rules.
The Committee originally published proposed amendments for public comment in the Pennsylvania Bulletin, 50 Pa.B. 7007 (December 12, 2020). After reviewing the comments received from the original publication and additional deliberations, the Committee re-published the proposal for comment in the Pennsylvania Bulletin, 51 Pa.B. 6141 (September 25, 2021).
Pa.R.Civ.P. 1915.11-2 is rewritten in its entirety. In addition to substantive amendments, the rule reflects stylistic and format changes. Further, the Note was removed, and its content placed in a Comment.
One of the substantive amendments includes subdivision (d)(1), which addresses the admissibility of a child's hearsay statement to a GAL. The GAL's report and testimony may include the child's statement to the GAL. If the child's statement complies with Pa.R.E. 703 (Bases of an Expert's Opinion Testimony), i.e., is the type of statement or information a GAL would rely upon in forming their recommendation on the child's best interest, the statement or information should be admissible and may be incorporated into the GAL's report or testimony. The revised rule reflects that a GAL may rely upon hearsay, as may be permitted pursuant to Pa.R.E. 703, as a basis for their recommendation. The amendment also confirms that a child's statement included in the GAL's report or testimony shall not be considered substantive evidence by the court.
Subdivision (d)(5) allows parties to file with the prothonotary, and serve on the other party and the court, a comment to the report or an objection to the report's admissibility, in whole or in part. The objection may be related to the child's statement.
Post-publication, the Committee added a subdivision related to the confidentiality of the report and a party's filed response. Subdivision (d)(3) states that the report and response shall be confidential and shall not constitute a public record.
Another substantive change is the deletion of the reference to 23 Pa.C.S. § 5336 in the rule text. Section 5336(b) identifies specific information that is expressly prohibited from disclosure to the parties. Of course, the court retains the discretion under Section 5336(c) to limit a party's access to certain records or information set forth in Section 5336(a). A reference to 23 Pa.C.S. § 5336 is included in the Comment.
The revised rule also clarifies that a party may subpoena an individual interviewed by the guardian ad litem or identified in the report to appear and testify at the hearing or trial. A party may also subpoena the guardian ad litem for the production of a document relied upon by the guardian ad litem in preparing the report. Post-publication, the rule was further revised in subdivision (d)(6) confirming a subpoena shall be ''subject to Pa.R.Civ.P. 1915.11,'' related to the appointment of an attorney for the child. Commentary was added confirming that this subdivision shall not be construed to limit a party's ability to subpoena other individuals, or limit the production of documents, if the court previously authorized discovery pursuant to Pa.R.Civ.P. 1915.5(c).
There were several post-publication revisions to the Comment to provide further guidance to the reader. The amended Comment confirms that ''appointments should be limited to extraordinary cases. . .'' and ''the duty and responsibility to determine the best interests of the children involved lies solely with the trial judge.'' Furthermore, while the requirements of Pa.R.E. 703 (Bases of an Expert's Opinion Testimony) must be satisfied, the guardian ad litem is not an expert witness and need not be qualified as an expert prior to testifying. Finally, the amendments clarify the guardian ad litem cannot simply relate the opinion of a non-testifying witness unless the guardian ad litem has reasonably relied upon it.
Additional post-publication revisions include amending Pa.R.Civ.P. 1915.21 concerning the form order appointing a guardian ad litem. Specifically, the form order was revised to align with the language of Pa.R.Civ.P. 1915.11-2(d)(4) governing the guardian ad litem's report. The general language informing the guardian ad litem that they may be subject to cross-examination ''by either party or the court'' was also amended to refer the reader to Pa.R.Civ.P. 1915.11-2(e)(2).
The following text in the Note was removed:
23 Pa.C.S. § 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.The amendments become effective April 1, 2023.
[Pa.B. Doc. No. 23-175. Filed for public inspection February 10, 2023, 9:00 a.m.]
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