THE COURTS
Title 231—RULES OF
CIVIL PROCEDURE
PART I. GENERAL
[ 231 PA. CODE CH. 1915 ]
Proposed Amendment of Pa.R.C.P. No. 1915.11
[50 Pa.B. 3834]
[Saturday, August 1, 2020]The Domestic Relations Procedural Rules Committee is planning to propose to the Supreme Court of Pennsylvania an amendment to Pa.R.C.P. No. 1915.11 for the reasons set forth in the accompanying publication report. Pursuant to Pa.R.J.A. No 103(a)(1), the proposal is being published in the Pennsylvania Bulletin for comments, suggestions, or objections prior to submission to the Supreme Court.
Any reports, notes, or comments in the proposal have been inserted by the Committee for the convenience of those using the rules. They neither will constitute a part of the rules nor will be officially adopted by the Supreme Court.
Additions to the text of the proposal are bolded and underlined; deletions to the text are bolded and bracketed.
The Committee invites all interested persons to submit comments, suggestions, or objections in writing to:
Bruce J. Ferguson, Counsel
Domestic Relations Procedural Rules Committee
Supreme Court of Pennsylvania
Pennsylvania Judicial Center
PO Box 62635
Harrisburg, PA 17106-2635
Fax: 717-231-9531
domesticrules@pacourts.usAll communications in reference to the proposal should be received by October 2, 2020. E-mail is the preferred method for submitting comments, suggestions, or objections; any e-mailed submission need not be reproduced and resubmitted via mail. The Committee will acknowledge receipt of all submissions.
By the Domestic Relations
Procedural Rules CommitteeWALTER J. MCHUGH, ESQ.,
Chair
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.] Appointment of Attorney for Child. Child Interview by the Court. Child Attending Court 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.
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.]
(a) Appointment of Attorney for Minor Child.
(1) Upon its own motion or a motion of a party, the court may appoint an attorney to represent a child, who is the subject of the action.
(2) The court may apportion the cost of the child's attorney to the parties.
(3) The order appointing the child's attorney shall be substantially in the form in Pa.R.C.P. No. 1915.19.
(4) 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.
Official Note: See Pa.R.C.P. No. 1915.11-2 for the appointment of a guardian ad litem.
(b) Child Interview by the Court.
(1) The court shall interview the child, along with other minor children who are called to testify in the action, in open court or in chambers and on the record.
(i) Except as provided in (b)(1)(ii), a party and his or her attorney may observe the interview.
(ii) A party may waive observation of the interview, including by his or her attorney.
(iii) During the interview, the court shall permit a party's attorney or a self-represented party to either:
(A) question the child under the court's supervision; or
(B) submit written questions to the court, which the court may include in its interview.
(2) The court shall include the transcript of the interview in the record.
(c) Child Attending Court Proceedings. A child's attendance at a court proceeding, e.g., conference, hearing, or trial, is not required unless the court orders the child to attend the proceeding.
COMMENT—2020 Subdivision (b) permits a party or his or her attorney to observe the child interview process, which the party may waive. The rule further provides the court with an alternative to live questioning of the child by the attorney or self-represented party through submission of written questions to the court for the child's interview. This alternative participation would obviate circumstances in which the court determines that the attorney or self-represented party directly questioning the child could intimidate or otherwise adversely impact the child or the court's ability to acquire information from the child. As the rule provides that the questioning is under the court's supervision, the court has the ability to address inappropriate questions or conduct by the attorney or self-represented party during the interview process.
PUBLICATION REPORT
Rule Proposal 178 The Domestic Relations Procedural Rules Committee (Committee) is proposing an amendment to Pa.R.C.P. No. 1915.11. This rule addresses the appointment of an attorney for a child in a custody case, the child interview by the court, and children attending various court proceedings.
The Committee received correspondence suggesting the current rule 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 his or her counsel. The Rule Proposal's primary purpose is amending subdivision (b) by allowing a self-represented party to directly participate in the child's interview. As in the current rule, the proposed rule requires the court to supervise the questioning of the child by a party's attorney or a self-represented party, which should ensure that inappropriate questions or behavior by a litigant or an attorney can be promptly addressed by the court.
Currently, Pa.R.C.P. No. 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. This aspect of the rule is unchanged, and the provision is rewritten into subdivision (b)(1)(i). Also, the Committee is proposing adding a waiver provision into subdivision (b)(1)(ii) in which a party may waive not only his or her observation of the child's interview, but also his or her attorney's observation. In practice, the parties and counsel often agree to not observe the child's interview to allow for a more fruitful and honest discussion between the court and the child. Proposed subdivision (b)(1)(ii) essentially codifies that current practice.
More significantly, however, the Rule Proposal incorporates and modifies the current rule's provision of permitting an attorney to interview the child under the court's supervision into subdivision (b)(1)(iii). The current rule permits only an attorney to interview the child. The Rule Proposal would allow a self-represented party the same opportunity do so under the court's supervision. The Committee is cognizant of the potential problems associated with a parent or third party questioning a child; however, the few cases in which this becomes an issue should not thwart a self-represented party's ability to represent himself or herself, especially when the court supervises the interview. Moreover, the Committee is cognizant that a self-represented party has the same rights as a represented party and, as such, should be afforded the same opportunity to interview the child. Furthermore, as a self-represented party is obligated to understand the rules and the law and conduct himself or herself in the same manner as an attorney, it would seem incompatible to that requirement for this rule to hinder a party's ability to self-represent by not permitting the party to question the child. See Rich v. Acrivos, 815 A.2d 1106 (Pa. Super. 2003).
To help the court manage the child's interview by the attorneys or parties, the proposed rule provides that in lieu of live questioning of the child by the attorneys or parties, the court may request that a party or the party's attorney provide the court with questions for the child that the court may include in its interview. Similar to subdivision (b)(1)(ii), the Committee is essentially codifying this common practice into subdivision (b)(1)(iii).
Finally, the current rule's subdivisions (a) and (c) are substantively unchanged, but the Committee is proposing rewriting these narrative subdivisions into an outline format. As a result, Pa.R.C.P. No. 1915.11 is rewritten in its entirety.
Accordingly, the Committee invites all comments, objections, concerns, and suggestions regarding this proposed rulemaking.
[Pa.B. Doc. No. 20-1022. Filed for public inspection July 31, 2020, 9:00 a.m.]
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