THE COURTS
Title 231—RULES OF
CIVIL PROCEDURE
PART I. GENERAL
[ 231 PA. CODE CH. 1915 ]
Amendments to the Rules of Civil Procedure Relating to Domestic Relations Matters; Recommendation 112
[41 Pa.B. 3719]
[Saturday, July 9, 2011]The Domestic Relations Procedural Rules Committee is planning to recommend that the Supreme Court of Penn-sylvania amend the Rules of Civil Procedure relating to domestic relations matters as set forth herein. This proposal has not been submitted for review by the Supreme Court of Pennsylvania.
Notes and explanatory comments which appear with proposed amendments have been inserted by the committee for the convenience of those using the rules. Reports, notes and comments will not constitute part of the rules and will not be officially adopted or promulgated by the Supreme Court.
The committee solicits and welcomes comments and suggestions from all interested persons prior to submission of this proposal to the Supreme Court of Pennsylvania. Please submit written comments no later than Monday August 29, 2011 directed to:
Patricia A. Miles, Esquire
Counsel, Domestic Relations Procedural Rules Committee
Pennsylvania Judicial Center
601 Commonwealth Avenue, Suite 6200
P. O. Box 62635
Harrisburg, PA 17106-2635
Fax: 717 231-9531
E-mail: domesticrules@pacourts.usDeleted material is bold and bracketed. New material is bold.
By the Domestic Relations
Procedural Rules CommitteeCAROL A. BEHERS, Esq.,
Chair
Annex A
TITLE 231. RULES OF CIVIL PROCEDURE
PART I. GENERAL
CHAPTER 1915. ACTIONS FOR CUSTODY, PARTIAL CUSTODY AND VISITATION OF MINOR CHILDREN Rule 1915.1. Scope. Definitions.
(a)[(1)] These rules govern the practice and procedure in all actions for legal and physical custody[, partial custody and visitation] of minor children, including habeas corpus proceedings and claims for custody[, partial custody or visitation] asserted in an action of divorce [or support].
Official Note: The term custody includes [legal custody, physical custody and shared custody] shared legal custody, sole legal custody, partial physical custody, primary physical custody, shared physical custody, sole physical custody and supervised physical custody. See [Definition Rule 1915.1(b)] 23 Pa.C.S. § 5322(A). [Divorce] Rule 1920.32(a) provides that when a claim for custody is joined with the action of divorce, the practice and procedure governing the claim for custody shall be in accordance with these rules.
[(2) If a claim for partial custody or visitation is raised during the course of an action for support, the court may
(i) enter an order with respect to the right to partial custody or visitation where there is
(A) proper venue under Rule 1915.2, and
(B) no current order of custody, partial custody or visitation outstanding, and
(C) no objection by a party to the determination of the claim, and
(D) no delay in the entry of the support order resulting from the determination of the claim; or
Official Note: See Myers v. Young, 285 Pa. Super. 254, 427 A.2d 209, 211 (1981), which held that ''the trial court properly declined to defer the entry of an order of support until satisfactory visitation rights had been established.''
(ii) require the commencement of a separate action pursuant to these rules.
Official Note: See 23 Pa.C.S. § 4349 which authorizes custody and visitation proceedings to be consolidated with support proceedings ''to facilitate frequent and unimpeded contact between children and parents'' if the custody or visitation matter may be ''fairly and expeditiously . . . determined and disposed of in the support action or proceeding.'']
(b) As used in this chapter, unless the context of a rule indicates otherwise,
''action'' means all proceedings for legal and physical custody[, partial custody or visitation,] and proceedings for modification of prior orders of any court;
* * * * * ''legal custody'' means the [legal] right to make major decisions [affecting the best interests of a minor] on behalf of the child, including, but not limited to, medical, religious and educational decisions;
''partial physical custody'' means the right to [take possession] assume physical custody of [a] the child [away from the custodial person for a certain period of] for less than a majority of the time;
* * * * * ''physical custody'' means the actual physical possession and control of a child;
''primary physical custody'' means the right to assume physical custody of the child for the majority of time;
''relocation'' means a change in a residence of the child which significantly impairs the ability of a non-relocating party to exercise custodial rights;
''shared legal custody'' means the right of more than one individual to legal custody of the child;
''shared physical custody'' means [shared legal or shared physical custody or both of a child in such a way as to assure the child of frequent and continuing contact, including physical access, to both parents; and] the right of more than one individual to assume physical custody of the child, each having significant periods of physical custodial time with the child;
[''visitation'' means the right to visit a child, but does not include the right to remove the child from the custodial person's control.]
''sole legal custody'' means the right of one individual to exclusive legal custody of the child;
''sole physical custody'' means the right of one individual to exclusive physical custody of the child; and
''supervised physical custody'' means custodial time during which an agency or an adult designated by the court or agreed upon by the parties monitors the interaction between the child and the individual with those rights.
Official Note: The definitions of the terms of the various forms of legal custody[,] and physical custody [and shared custody] are taken from 23 [Pa.C.S.A. § 5302] Pa.C.S. § 5322(A).
For additional definitions, see the Uniform Child Custody Jurisdiction and Enforcement Act, 23 [Pa.C.S.A.] Pa.C.S. § 5402.
[Explanatory Comment—1994 Whatever context in which the claim for custody, partial custody or visitation will arise, subdivision (a)(1) provides that the proposed rules will govern the practice and procedure. The custody rule is reinforced by Divorce Rule 1920.32(a).
Subdivision (b) provides the necessary definitions for the rules. The rules adopt the terms ''custody,'' ''partial custody,'' and ''visitation'' suggested by Judge Spaeth in his concurring opinion in Scott v. Scott, 240 Pa. Super. 65, 368 A.2d 288, 291 (1976).]
* * * * * Rule 1915.3. Commencement of Action. Complaint. Order.
* * * * * (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).
Official Note: See § 5430(d) of the Uniform Child Custody Jurisdiction and Enforcement Act, 23 [Pa.C.S.A.] Pa.C.S. § 5430(d), relating to costs and expenses for appearance of parties and child, and 23 [Pa.C.S.A.] Pa.C.S. § 5471, relating to intrastate application of the Uniform Child Custody Jurisdiction and Enforcement Act.
(c) A claim for custody[, partial custody or visitation] 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 1915.15(a).
Official Note: [Divorce] Rule 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[, partial custody or visitation] 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 1930.6.
(e) A grandparent seeking physical and/or legal custody of a grandchild pursuant to 23 Pa.C.S. § [5313(b)] 5323 must plead, in paragraph [7] 9 of the complaint set forth at Rule 1915.15(a), facts establishing [the elements of a cause of action] standing under [§§ 5313(b)(1), (2) and (3)] § 5324(3). 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.
(Editor's Note: The following rule is new and printed in regular type to enhance readability.)
Rule 1915.3-1. Criminal or Abuse History.
(a) Criminal or Abuse History Affidavit. The plaintiff must file with the complaint, or any petition for modification, an affidavit regarding any criminal or abuse history of the plaintiff and anyone living in the plaintiff's household. The affidavit shall be substantially in the form set forth in subdivision (c) below. Although the defendant need not file a responsive pleading pursuant to Rule 1915.5, the defendant must file with the court an affidavit regarding any criminal or abuse history of the defendant and anyone living in the defendant's 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, conciliation or mediation, depending upon the procedure in the judicial district) but not later than 30 days after service of the complaint or petition upon the defendant.
(b) Initial Evaluation. 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 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 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.
(c) Affidavit. The affidavit regarding criminal or abuse history shall be substantially in the following form:
(Caption)
CRIMINAL RECORD / ABUSE HISTORY AFFIDAVIT 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, neither I nor any other adult member of my household have been convicted or pled guilty or pled no contest to any of the following crimes in Pennsylvania or in any other jurisdiction:
Check all
that applyCrime
Self Other
household
memberDate of conviction guilty plea or no contest plea Sentence [ ] 18 Pa.C.S. Ch. 25
(relating to criminal homicide)[ ] [ ] ______ ______ [ ] 18 Pa.C.S. § 2702
(relating to aggravated assault)[ ] [ ] ______ ______ [ ] 18 Pa.C.S. § 2706
(relating to terroristic threats)[ ] [ ] ______ ______ [ ] 18 Pa.C.S. § 2709.1
(relating to stalking)[ ] [ ] ______ ______ [ ] 18 Pa.C.S. § 2901
(relating to kidnapping)[ ] [ ] ______ ______ [ ] 18 Pa.C.S. § 2902
(relating to unlawful restraint)[ ] [ ] ______ ______ [ ] 18 Pa.C.S. § 2903
(relating to false imprisonment)[ ] [ ] ______ ______ [ ] 18 Pa.C.S. § 2910
(relating to luring a child into a motor vehicle or structure)[ ] [ ] ______ ______ [ ] 18 Pa.C.S. § 3121
(relating to rape)[ ] [ ] ______ ______ [ ] 18 Pa.C.S. § 3122.1
(relating to statutory sexual assault)[ ] [ ] ______ ______ [ ] 18 Pa.C.S. § 3123
(relating to involuntary deviate sexual intercourse)[ ] [ ] ______ ______ [ ] 18 Pa.C.S. § 3124.1
(relating to sexual assault)[ ] [ ] ______ ______ [ ] 18 Pa.C.S. § 3125
(relating to aggravated indecent assault)[ ] [ ] ______ ______ [ ] 18 Pa.C.S. § 3126
(relating to indecent assault)[ ] [ ] ______ ______ [ ] 18 Pa.C.S. § 3127
(relating to indecent exposure)[ ] [ ] ______ ______ [ ] 18 Pa.C.S. § 3129
(relating to sexual intercourse with animal)[ ] [ ] ______ ______ [ ] 18 Pa.C.S. § 3130
(relating to conduct relating to sex offenders)[ ] [ ] ______ ______ [ ] 18 Pa.C.S. § 3301
(relating to arson and related offenses)[ ] [ ] ______ ______ [ ] 18 Pa.C.S. § 4302
(relating to incest)[ ] [ ] ______ ______ [ ] 18 Pa.C.S. § 4303
(relating to concealing death of child)[ ] [ ] ______ ______ [ ] 18 Pa.C.S. § 4304
(relating to endangering welfare of children)[ ] [ ] ______ ______ [ ] 18 Pa.C.S. § 4305
(relating to dealing in infant children)[ ] [ ] ______ ______ [ ] 18 Pa.C.S. § 5902(b)
(relating to prostitution and related offenses)[ ] [ ] ______ ______ [ ] 18 Pa.C.S. § 5903(c) or (d)
(relating to obscene and other sexual materials and performances)[ ] [ ] ______ ______ [ ] 18 Pa.C.S. § 6301
(relating to corruption of minors)[ ] [ ] ______ ______ [ ] 18 Pa.C.S. § 6312
(relating to sexual abuse of children)[ ] [ ] ______ ______ [ ] 18 Pa.C.S. § 6318
(relating to unlawful contact with minor)[ ] [ ] ______ ______ [ ] 18 Pa.C.S. § 6320
(relating to sexual exploitation of children)[ ] [ ] ______ ______ [ ] 23 Pa.C.S. § 6114
(relating to contempt for violation of protection order or agreement)[ ] [ ] ______ ______ [ ] Driving under the influence of drugs or alcohol [ ] [ ] ______ ______ [ ] Manufacture, sale, delivery 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 adult member of my household have a history of violent or abusive conduct including the following:
Check all
that applySelf Other
household
memberDate [ ] 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 [ ] [ ] ______ [ ] Other: _________________ [ ] [ ] ______ Please list any evaluation, counseling or other treatment received following conviction:
_______________________________________________
_______________________________________________If any conviction above applies to a household member, not a party, state that person's relationship to the child.
_______________________________________________
________________________________________________________________
Signature
_________________
Printed NameRule 1915.4-1. Alternative Hearing Procedures for Partial Custody [or Visitation] Actions.
(a) A custody action shall proceed as prescribed by Rule 1915.4-3 unless the court, by local rule, adopts the alternative hearing procedure authorized by Rule 1915.4-2 pursuant to which an action for partial custody [or visitation] may be heard by a hearing officer, except as provided in subdivision (b) below.
(b) Promptly after the parties' initial contact with the court as set forth in Rule 1915.4(a), a party may move the court for a hearing before a judge, rather than a hearing officer, in an action for partial custody [or visitation] where:
* * * * *
Explanatory Comment—1994 These [new] rules provide an optional procedure for using hearing officers in partial custody [and visitation] cases. The procedure is similar to the one provided for support cases in Rule 1910.12: a conference, record hearing before a hearing officer and argument on exceptions before a judge. The terms ''conference officer'' and ''hearing officer'' have the same meaning here as in the support rules.
It is important to note that use of the procedure prescribed in Rules 1915.4-1 and 1915.4-2 is optional rather than mandatory. Counties which prefer to have all partial custody [and visitation] cases heard by a judge may continue to do so.
* * * * * Rule 1915.4-2. Partial Custody. [Visitation.] Office Conference. Hearing. Record. Exceptions. Order.
(a) Office Conference.
* * * * * (3) The conference officer may make a recommendation to the parties relating to partial custody [or visitation] of the child or children. If an agreement for partial custody [or visitation] is reached at the conference, the conference officer shall prepare a written order in conformity with the agreement for signature by the parties and submission to the court together with the officer's recommendation for approval or disapproval. The court may enter an order in accordance with the agreement without hearing the parties.
(4) At the conclusion of the conference, if an agreement relating to partial custody [or visitation] has not been reached, the parties shall be given notice of the date, time and place of a hearing before a hearing officer, which may be the same day, but in no event shall be more than forty-five days from the date of the conference.
(b) Hearing.
* * * * * (3) Within ten days of the conclusion of the hearing, the hearing officer shall file with the court and serve upon all parties a report containing a recommendation with respect to the entry of an order of partial custody [or visitation]. The report may be in narrative form stating the reasons for the recommendation and shall include a proposed order, including a specific schedule for partial custody [or visitation].
* * * * * Rule 1915.4-3. Non-Record Proceedings. Trials.
(a) Non-Record Proceedings. In those jurisdictions [which] that utilize an initial non-record proceeding such as a conciliation conference or office conference, if no agreement is reached at the conclusion of the proceeding, the conference officer or conciliator shall promptly notify the court that the matter should be listed for trial.
* * * * * (Editor's Note: The following rule is new and printed in regular type to enhance readability.)
Rule 1915.4-4. Pre-Hearing or Pre-Trial Procedures.
(a) Prior to the hearing or trial:
(1) Not later than 60 days prior to the date of the hearing or trial, the parties shall exchange, with a courtesy copy to the court, the names and addresses of all expert witnesses and verification that counsel has secured the services of each expert.
(2) Not later than 30 days prior to the date of the hearing or trial, the parties shall exchange a copy of the report of any expert intended to be called to testify.
(3) Not later than 30 days prior to the date of the hearing or trial, the parties shall exchange, with a courtesy copy to the court, the names and addresses of all non-expert witnesses, a summary of the testimony of each witness and verification that counsel has confirmed the testimony of each witness as set forth in the summary.
(4) Not later than 30 days prior to the date of the hearing or trial, the parties shall exchange copies of all exhibits either party intends to offer into evidence at trial.
(5) Not later than 30 days prior to the date of the hearing or trial, the parties shall exchange, with a courtesy copy to the court, a proposed order.
(b) At the request of either party, the trier of fact shall schedule a pre-trial conference not later than 10 days before trial or a status conference at any time.
Rule 1915.5. Question of Jurisdiction or Venue. No Responsive Pleading by Defendant Required. Counterclaim. Discovery.
* * * * * (b) A party may file a counterclaim asserting the right of physical or legal custody[, partial custody or visitation] within twenty days of service of the complaint upon that party or at the time of hearing, whichever first occurs. The claim shall be in the same form as a complaint as required by Rule 1915.3.
* * * * * Rule 1915.6. Joinder of Parties.
(a)(1) If the court learns from the pleadings or any other source that a parent whose parental rights have not been previously terminated or a person who has physical custody of the child is not a party to the action, it shall order that the person be joined as a party. Such person shall be served with a copy of all prior pleadings and notice of the joinder substantially in the form prescribed by Rule 1915.16(a).
* * * * * (3) The person joined may file a counterclaim asserting a right to physical or legal custody[, partial custody or visitation] in the form required for a complaint by Rule 1915.3. A copy of the counterclaim shall be served upon all other parties to the action as provided by Rule 440.
(b) If the court learns from the pleadings or any other source that any other person who claims to have [custody or visitation] custodial rights with respect to the child is not a party to the action, it shall order that notice be given to that person of the pendency of the action and of the right to intervene therein. The notice shall be substantially in the form prescribed by Rule 1915.16(b).
Explanatory Comment—1994 The position taken by the rules is that a person in physical custody of the child and a parent whose parental rights have not been terminated are necessary parties to a custody determination. While it may be desirable to have other persons who claim custody [or visitation] rights as parties to the action, their joinder is not a prerequisite to a custody determination.
Rule 1915.7. Consent Order.
If an agreement for custody[, partial custody or visitation] is reached and the parties desire a consent order to be entered, they shall note their agreement upon the record or shall submit to the court a proposed order bearing the written consent of the parties or their counsel.
Rule 1915.10. Decision. Order.
(a) The court may make the decision before the testimony has been transcribed. The court shall state the reasons for its decision either on the record in open court, in a written opinion, or in the order.
(b) The terms of the order shall be sufficiently specific to enforce the order. 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.
(c) Any custody order shall include notice of a party's obligations pursuant to 23 Pa.C.S. § 5337 dealing with a party's intention to relocate with a minor child.
(d) No motion for post-trial relief may be filed to an order of legal or physical custody[, partial custody or visitation].
[Official Note: See 23 Pa.C.S. § 5301 et seq. for provisions relating to the award of sole or shared custody (§§ 5303, 5304), counseling and the temporary award of custody pending counseling (§ 5305), submission of a plan to implement a custody order (§ 5306), removal of a party or child from the Commonwealth (§ 5308), access to records of the child (§ 5309), and modification of existing custody orders (§ 5310).
The statute also provides that the court shall state on the record its reasons when it declines to enter an award of custody as agreed to by the parents or under the plan developed by them (23 Pa.C.S. § 5307).]
Explanatory Comment—2011 The custody statute, at 23 Pa.C.S. § 5323(d), requires the court to delineate the reasons for its decision on the record in open court or in a written opinion or order. Subsection (b) further defines and reinforces the requirements found in 23 Pa.C.S. § 5323(e). Examples of safety provisions include, but are not limited to: supervised physical custody, supervised or neutral custody exchange location, neutral party presence at custody exchange, telephone or computer-facilitated contact with the child, no direct contact between the parties, third party contact for cancellations, third party transportation and designating secure, neutral location for a child's passport. The statute, at 23 Pa.C.S. § 5323, requires that any custody order must include notice of a party's obligations when there is a proposed relocation under 23 Pa.C.S. § 5337. Rule 1915.17 also addresses relocation.
Rule 1915.11. Appointment of Attorney for Child. Interrogation of Child. Attendance of Child at Hearing or Conference.
(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 upon the parties or any of them or as otherwise provided by law. The order appointing an attorney to represent the child shall be in substantially the form set forth in Rule 1915.19.
* * * * * Official 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.
Explanatory Comment—1991 Rule 1915.15(b) 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.
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 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 1915.15(b) has been revised to implement this policy.
(Editor's Note: The following rule is new and printed in regular type to enhance readability.)
Rule 1915.11-2. Appointment of Guardian Ad Litem.
(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. 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 provide copies of any reports prepared by the guardian ad litem to each party not later than 20 days prior to trial. The report shall not be filed of record or provided to the court prior to the hearing or trial. 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.
Official Note: 23 Pa.C.S. § 5334 is suspended insofar as it allows a guardian ad litem to act as a child's attorney or represent the legal interests of the child in a child custody action; requires submission of the guardian ad litem's report to the court and inclusion in the record; or prohibits the guardian ad litem from testifying.
Rule 1915.12. Civil Contempt for Disobedience of Custody Order. Petition. Form of Petition. Service. Order.
(a) A petition for civil contempt shall begin with a notice and order to appear in substantially the following form:
NOTICE AND ORDER TO APPEAR Legal proceedings have been brought against you alleging you have willfully disobeyed an order of court for [(custody) (partial custody) (visitation)] custody.
* * * * * If the court finds that you have willfully failed to comply with its order [for (custody) (partial custody) (visitation)], you may be found to be in contempt of court and committed to jail, fined or both.
* * * * * (b) The petition shall allege the facts which constitute [wilful] willful failure to comply with the custody[, partial custody or visitation] order, a copy of which shall be attached to the petition.
(c) The petition shall be in substantially the following form:
(Caption)
PETITION FOR CIVIL CONTEMPT FOR
DISOBEDIENCE OF [(CUSTODY)
(PARTIAL CUSTODY)
(VISITATION)] CUSTODY ORDERThe Petition of ______ , respectfully represents:
1. That on ______ , Judge ______ entered an Order awarding (Petitioner) (Respondent) [(custody) (partial custody) (visitation)] (shared legal custody) (sole legal custody) (partial physical custody) (primary physical custody) (shared physical custody) (sole physical custody) (supervised physical custody) of the minor child(ren) ______ .
(Name(s) of Child(ren))* * * * * (e) After hearing, an order committing a respondent to jail for contempt of a custody[, partial custody or visitation] order shall specify the condition which must be fulfilled to obtain release of the respondent.
Official Note: [See 23 Pa.C.S.A. § 4346 relating to contempt for noncompliance with visitation or partial custody order.]
See the Uniform Child Custody Jurisdiction and Enforcement Act, 23 [Pa.C.S.A.] Pa.C.S. §§ 5443 and 5445, relating to registration and enforcement of custody decrees of another state, and 23 [Pa.C.S.A.] Pa.C.S. § 5471, relating to intrastate application of the Uniform Child Custody Jurisdiction and Enforcement Act.
Rule 1915.13. Special Relief.
At any time after commencement of the action, the court may on application or its own motion grant appropriate interim or special relief. The relief may include, but is not limited to, the award of temporary legal or physical custody[, partial custody or visitation]; the issuance of appropriate process directing that a child or a party or person having physical custody of a child be brought before the court; and a direction that a person post security to appear with the child when directed by the court or to comply with any order of the court.
* * * * * Rule 1915.14. Disobedience of Order. Arrest. Contempt.
If a person disobeys an order of court other than a custody[, partial custody or visitation] order, the court may issue a bench warrant for the arrest of the person and if the disobedience is [wilful] willful may, after hearing, adjudge the person to be in contempt.
Official Note: For disobedience of a custody[, partial custody or visitation] order, see Rule 1915.12.
Rule 1915.15. Form of Complaint. Caption. Order. Petition to Modify a [Partial] Custody [or Visitation] Order.
(a) The complaint in an action for custody[, partial custody or visitation] shall be in substantially the following form:
(Caption)
COMPLAINT FOR [(CUSTODY) (PARTIAL CUSTODY) (VISITATION)] CUSTODY * * * * * 3. Plaintiff seeks [(custody) (partial custody) (visitation)] (shared legal custody) (sole legal custody) (partial physical custody) (primary physical custody) (shared physical custody) (sole physical custody) (supervised physical custody) of the following child(ren):
* * * * * 6. Plaintiff (has) (has not) participated as a party or witness, or in another capacity, in other litigation concerning the custody of the child in this or another court. The court, term and number, and its relationship to this action is: _________________
* * * * * Plaintiff (knows) (does not know) of a person not a party to the proceedings who has physical custody of the child or claims to have [custody or visitation] custodial rights with respect to the child. The name and address of such person is: _________________
* * * * * 8. Each parent whose parental rights to the child have not been terminated and the person who has physical custody of the child have been named as parties to this action. All other persons, named below, who are known to have or claim a right to custody [or visitation] of the child will be given notice of the pendency of this action and the right to intervene:
* * * * * 9. (a) If the plaintiff is a grandparent who is seeking physical and/or legal custody pursuant to 23 Pa.C.S. § 5324, you must plead facts establishing standing pursuant to 23 Pa.C.S. § 5324(3). ______
(b) If the plaintiff is a grandparent or great-grandparent who is seeking partial physical custody or supervised physical custody pursuant to 23 Pa.C.S. § 5325, you must plead facts establishing standing pursuant to § 5325. ______
Wherefore, plaintiff requests the court to grant [(custody) (partial custody) (visitation)] (shared legal custody) (sole legal custody) (partial physical custody) (primary physical custody) (shared physical custody) (sole physical custody) (supervised physical custody) of the child.
* * * * * (b) A petition to modify a [partial] custody [or visitation] order shall be in substantially the following form:
(Caption)
PETITION FOR MODIFICATION OF A [PARTIAL] CUSTODY [OR VISITATION] ORDER 1. The petition of ______ respectfully represents that on ______ , [19] 20__ an Order of Court was entered for [(PARTIAL CUSTODY) (VISITATION)] (shared legal custody) (sole legal custody) (partial physical custody) (primary physical custody) (shared physical custody) (sole physical custody) (supervised physical custody), a true and correct copy of which is attached.
* * * * * WHEREFORE, Petitioner requests that the Court modify the existing Order [for (PARTIAL CUSTODY) (VISITATION)] because it will be in the best interest of the child(ren).
_________________
(Attorney for Petitioner) (Petitioner)* * * * * (c) The order to be attached at the front of the complaint or petition for modification shall be in substantially the following form:
(Caption)
ORDER OF COURT You, ______ , (defendant) (respondent), have been sued in court to (OBTAIN) (MODIFY) [custody, partial custody or visitation] (shared legal custody) (sole legal custody) (partial physical custody) (primary physical custody) (shared physical custody) (sole physical custody) (supervised physical custody) of the child(ren): _________________ .
* * * * * If you fail to appear as provided by this order, an order for custody[, partial custody or visitation] may be entered against you or the court may issue a warrant for your arrest.
* * * * * Rule 1915.16. Form of Order and Notice. Joinder. Intervention.
(a) The order and notice joining a party in an action under Rule 1915.6(a) shall be substantially in the following form:
(Caption)
ORDER AND NOTICE A complaint has been filed in the Court of Common Pleas of ______ County concerning custody[, partial custody and visitation] of the following child(ren): _________________ .
The Court has learned you may have a legal interest in custody[, partial custody or visitation] of the child(ren) named.
A hearing will be held in Courtroom ______ of the Court of Common Pleas, ______ ,
(Address)
on ______ , at ______ , __.M. If you wish to (Day and Date) (Time)
[have custody, partial custody or visitation of the child(ren)] protect any legal interest you may have or wish to present evidence to the Court on those matters, you should appear at the place and time and on the date above.If you have the child(ren) in your possession or control, you must appear and bring them to the Courthouse with you.
If you wish to claim [the] a right [to] of custody[, partial custody or visitation], you may file a counterclaim.
If you fail to appear as provided by this order or to bring the child(ren), an order for custody[, partial custody or visitation] may be entered against you or the Court may issue a warrant for your arrest.
* * * * * (b) The order for notice of the pendency of the action and the right to intervene required by Rule 1915.6(b) shall be substantially in the following form:
(Caption)
ORDER AND NOTICE A complaint has been filed in the Court of Common Pleas of ______ County concerning custody[, partial custody and visitation] of the following child(ren): ______ .
The Court has learned you claim [custody, partial custody or visitation] custodial rights with respect to the child(ren) named.
A hearing will be held in Courtroom ______ of the Court of Common Pleas, ______ ,
(Address)
on ______ , at ______ , __.M. If you wish to
(Day and Date) (Time)
assert your claim to [custody, partial custody or visitation] custodial rights with respect to the child(ren) or wish to present evidence to the Court on those matters, you should petition the Court, on or before the above date, for leave to intervene in the proceedings.* * * * * (Editor's Note: Rules 1915.17, 1915.19 and 1915.21 are new and printed in regular type to enhance readability.)
Rule 1915.17. Relocation. Notice and Counter-Affidavit.
The procedure in any relocation case shall be expedited. There shall be no requirement for pre-judicial processes including, but not limited to, parenting education, conciliation or mediation prior to an expedited hearing before a judge.
(a) Any person seeking to relocate a minor child shall first obtain:
(i) the written consent of any other person who has custodial rights to the child, or
(ii) an order of court approving the relocation.
(b) If there is no existing custody order or case number, the party seeking to relocate must file a custody complaint and be assigned a case number prior to serving a notice of relocation. If there is an existing custody order, the party seeking to relocate need not file a modification petition. The party seeking to relocate must notify every other person who has custodial rights to the child and provide a counter-affidavit by which a person may agree or object to the relocation. The form of the notice and counter-affidavit are set forth in subdivisions (f) and (g) below. The notice shall be sent by certified mail, return receipt requested, no later than the sixtieth day before the date of the proposed relocation or other time frame set forth in 23 Pa.C.S. § 5337(c)(2).
(c) When the relocating parent seeks an order of court, has served a notice of intent to relocate as required by 23 Pa.C.S. § 5337 et seq., has not received notice of objection to the move, and seeks confirmation of relocation, the relocating parent shall file:
(1) a petition to confirm relocation that includes the requirements set forth in 23 Pa.C.S. § 5337(e) when there is an existing custody case;
(2) A copy of the copy of the notice served on the non-relocating party and proof of service; and
(3) A proposed order.
(d) When the relocating parent seeks an order of court, has served a notice of intent to relocate as required by 23 Pa.C.S. § 5337 et seq., and has received notice of objection to the move, the relocating parent shall file:
(1) a copy of the notice served on the non-relocating party;
(2) a request for a hearing.
(e) If the non-relocating party wants an order of court preventing relocation, the non-relocating party shall file:
(1) a counter-affidavit as set forth in 23 Pa.C.S. § 5337 (d)(1), and
(2) a request for a hearing
(f) The notice of relocation shall be substantially in the following form:
(Caption)
NOTICE OF RELOCATION You, ______ , are hereby notified that ______ (relocating individual) ______ intends to relocate with the following minor child(ren): ______ .
To object to the proposed relocation, you must complete the attached counter-affidavit, file it with the court and serve it upon the party seeking to relocate by certified mail, return receipt requested, within 30 days. If the court does not receive your objection to the proposed relocation within 30 days, the relocating individual has the right to petition the court to approve the proposed relocation and to modify any effective custody orders or agreements. FAILURE TO OBJECT WITHIN 30 DAYS WILL PREVENT YOU FROM OBJECTING TO THE RELOCATION.
Address of the proposed new residence: ______
[ ] Check here if the address is confidential pursuant to 23 Pa.C.S. § 5336(b).
Mailing address of intended new residence (if not the same as above) _________________
[ ] Check here if the address is confidential pursuant to 23 Pa.C.S. § 5336(b).
Names and ages of the individuals who intend to reside at the new residence:
Name Age
[ ] Check here if the information is confidential pursuant to 23 Pa.C.S. § 5336(b) or (c).
Home telephone number of the new residence: ______
[ ] Check here if the information is confidential pursuant to 23 Pa.C.S. § 5336(b) or (c).
Name of the new school district and school the child(ren) will attend after relocation: _________________
[ ] Check here if the information is confidential pursuant to 23 Pa.C.S. § 5336(b) or (c).
Date of the proposed relocation: ______
[ ] Check here if the information is confidential pursuant to 23 Pa.C.S. § 5336(b) or (c).
Reasons for the proposed relocation: ______
[ ] Check here if the information is confidential pursuant to 23 Pa.C.S. § 5336(b) or (c).
Proposed modification of custody schedule following relocation: _________________
Other information: _________________
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
_________________
_________________
_________________(g) The counter-affidavit that must be served with the relocation notice shall be substantially in the following form as set forth at 23 Pa.C.S. § 5337(d):
(Caption)
COUNTER-AFFIDAVIT REGARDING RELOCATION This proposal of relocation involves the following child/children:
Child's Name Age Currently residing at: ______ ______ ______ Child's Name Age Currently residing at: ______ ______ ______ Child's Name Age Currently residing at: ______ ______ ______ I have received a notice of proposed relocation and
1. [ ] I do not object to the relocation
2. [ ] I do not object to the modification of the custody order consistent with the proposal for modification set forth in the notice.
3. [ ] I do not object to the relocation, but I do object to modification of the custody order.
4. [ ] I plan to request that a hearing be scheduled by filing a request for hearing with the court:
a. [ ] Prior to allowing (name of child/children) to relocate.
b. [ ] After the child/children relocate.
5. [ ] I do object to the relocation
6. [ ] I do object to the modification of the custody order.
I understand that in addition to objecting to the relocation or modification of the custody order above, I must also file this notice with the court in writing and serve it on the other party by certified mail, return receipt requested. If I fail to do so within 30 days of my receipt of the proposed relocation notice, I shall be foreclosed from objecting to the relocation.
I verify that the statements made in this counter-affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 (relating to unsworn falsification to authorities).
______ _________________
(Date) (Signature)Rule 1915.19. Form of Order Appointing Counsel for the Child.
The order appointing an attorney to represent a child in a child custody action pursuant to Rule 1915.11 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.P. 1915.11, ______ is appointed as attorney for the minor child______ (D.O.B. ____ ) in connection with the civil proceedings related to the custody of the minor child.
Counsel for the child shall zealously represent the legal interests of the child as any other client in an attorney-client relationship and shall not act as the child's guardian ad litem or best interests attorney. The child's attorney shall not be called to testify and communications between the child's attorney and the child shall be privileged, consistent with the attorney-client relationship.
It is ordered and decreed that the relevant schools, the police department, all hospitals and all 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 child's attorney 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 child's attorney 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 child's attorney 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 consistent with this order.
The fees for the child's attorney 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.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.P. 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 the relevant schools, the police department, all hospitals and all 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 not later than 20 days prior to trial. The report shall not be filed of record or provided to the court prior to the hearing or trial. 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.
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.Rule 1915.25. Suspension of Acts of Assembly.
Section 5351 of the Domestic Relations Code, 23 Pa.C.S. § 5351, of the Uniform Child Custody Jurisdiction Act, relating to additional parties, is suspended insofar as it provides for the joinder of a person not a party who claims to have custody or visitation rights with respect to the child.
23 Pa.C.S. § 5334 is suspended insofar as it allows a guardian ad litem to act as a child's attorney or represent the legal interests of the child in a child custody action; requires submission of the guardian ad litem's report to the court and inclusion in the record; or prohibits the guardian ad litem from testifying.
* * * * *
[Pa.B. Doc. No. 11-1129. Filed for public inspection July 8, 2011, 9:00 a.m.]
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