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PA Bulletin, Doc. No. 16-2066



[ 231 PA. CODE CH. 1915 ]

Proposed Amendment of Pa.R.C.P. Nos. 1915.1 and 1915.4-3

[46 Pa.B. 7524]
[Saturday, December 3, 2016]

 The Domestic Relations Procedural Rules Committee is planning to propose to the Supreme Court of Pennsylvania amendments to Pa.R.C.P. Nos. 1915.1—Scope. Definitions and 1915.4-3—Non-Record Proceedings. Trial for the reasons set forth in the accompanying publication report. Pursuant to Pa.R.J.A. No 103(a)(1), the proposal is being republished 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; 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

 All communications in reference to the proposal should be received by February 24, 2017. 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 Committee


Annex A




Rule 1915.1. Scope. Definitions.

*  *  *  *  *

 (b) As used in this chapter, unless the context of a rule indicates otherwise,

[''action'' means] ''action,'' all proceedings for legal and physical custody and proceedings for modification of prior orders of any court;

''child,'' an unemancipated individual under 18 years of age;

''conciliator,'' for purposes of these rules, a conciliator is synonymous with a conference officer as defined in this rule;

''conference officer,'' an individual who presides over an office conference pursuant to Pa.R.C.P. No. 1915.4-2(a) or the initial non-record proceeding under Pa.R.C.P. No. 1915.4-3(a). For purposes of these rules, a conciliator is synonymous with a conference officer;

[''custody'' means] ''custody,'' the legal right to keep, control, guard, care for and preserve a child and includes the terms ''legal custody,'' ''physical custody,'' and ''shared custody;''

''hearing officer,'' a lawyer who conducts a record hearing on partial custody cases pursuant to Pa.R.C.P. No. 1915.4-2(b);

[''home county'' means] ''home county,'' the county in which the child [immediately preceding the time involved lived with the child's parents, a parent, or] lived with either or both parents, a person acting as parent, or in an institution[,] for at least six consecutive months[, and in] immediately preceding the filing of the action. In the case of a child less than six months old, the county in which the child lived from birth with any of the persons mentioned. A period of temporary absence of the child from the physical custody of the parent, institution, or person acting as parent shall not affect the six-month or other period;

''in loco parentis,'' a person who puts himself in the situation of a lawful parent by assuming the obligations incident to the parental relationship without going through the formality of a legal adoption. The status of in loco parentis embodies two ideas: 1) the assumption of a parental status; and 2) the discharge of parental duties;

Official Note: A.S. vs. I.S., 130 A.3d 763 (Pa 2015).

[''legal custody'' means] ''legal custody,'' the right to make major decisions on behalf of the child, including, but not limited to, medical, religious, and educational decisions;

''mediator,'' an individual qualified under Pa.R.C.P. No. 1940.4 and who assists custody litigants independently from the procedures set forth in Pa.R.C.P. Nos. 1915.1—1915.25 by engaging the litigants in the mediation principals in Pa.R.C.P. No. 1940.2 to resolve custody matters in whole or in part;

''mediation,'' as defined in Pa.R.C.P. No. 1940.2;

''non-record proceeding,'' the initial office conference set forth in Pa.R.C.P. No. 1915.4-3. Mediation sessions referenced in Pa.R.C.P. No. 1940.1—1940.9 shall not be construed as non-record proceedings in Pa.R.C.P. No. 1915.4-3;

[''partial physical custody'' means] ''partial physical custody,'' the right to assume physical custody of the child for less than a majority of the time;

[''person acting as parent'' means] ''person acting as parent,'' a person other than a parent, including an institution, who has physical custody of a child and who has either been awarded custody by a court or claims a right to custody[;]. See also, the definition of in loco parentis and 23 Pa.C.S. § 5402;

[''physical custody'' means] ''physical custody,'' the actual physical possession and control of a child;

[''primary physical custody'' means] ''primary physical custody,'' the right to assume physical custody of the child for the majority of time;

[''relocation'' means] ''relocation,'' 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] ''shared legal custody,'' the right of more than one individual to legal custody of the child;

[''shared physical custody'' means] ''shared physical custody,'' 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;

[''sole legal custody'' means the right of one] ''sole legal custody,'' the right of an individual to exclusive legal custody of the child;

[''sole physical custody'' means the right of one] ''sole physical custody,'' the right of an individual to exclusive physical custody of the child; and

[''supervised physical custody'' means] ''supervised physical custody,'' 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.

*  *  *  *  *

Rule 1915.4-3. Non-Record Proceedings. Trials.

 (a) Non-Record Proceedings. In [those jurisdictions that utilize] judicial districts utilizing an initial non-record proceeding [such as a conciliation conference or], i.e., office conference, if [no agreement is reached at] an agreement is not finalized prior to the conclusion of the proceeding, the conference officer [or conciliator] shall promptly notify the court that the matter should be listed for trial. [Any] A lawyer employed by, or under contract with, a judicial district or appointed by the court to serve as a [conciliator or mediator or] conference officer to preside over a non-record proceeding shall not practice family law before a conference officer, hearing officer, permanent or standing master, or judge of the same judicial district.

 (b) Trial. The trial before the court shall be de novo. The court shall hear the case and render a decision within the time periods set forth in [Rule] Pa.R.C.P. No. 1915.4.

Proposed Amendments to Pa.R.C.P. Nos. 1915.1
and 1915.4-3
Republication Report

 The Domestic Relations Procedural Rules Committee (''Committee'') proposes amendments to Pa.R.C.P. Nos. 1915.1 (Scope. Definitions) and 1915.4-3 (Non-Record Proceedings. Trial). This Recommendation had been published originally in the Pennsylvania Bulletin, Pa.B. 5676 (September 19, 2015), as a proposed amendment to Pa.R.C.P. No. 1915.4-3. Pa.R.C.P. No. 1915.4-3 precludes attorneys serving as conciliators, mediators, or presiding over a non-record custody proceeding from practicing family law before conference officers, hearings officers, and judges in the judicial district in which the attorney had been appointed or employed.

 When this rule had been amended previously, the Committee understood that the judicial districts utilized various titles, including mediator, to identify the person presiding over non-record proceedings. As a result, the term mediator was added to the practice preclusion rule text. However, after the effective date of the earlier amendment, the Committee received input that Pa.R.C.P. No. 1915.4-3 operated to preclude attorneys who serve as mediators pursuant to Chapter 1940 from practicing family law. The comments suggested mediators, unlike persons presiding over non-record proceedings, had no contact with the court and did not make recommendations to the court. The comments further contended that court-established mediation programs successfully resolved a significant number of custody cases that would otherwise proceed through an already overburdened custody docket, and precluding family law attorneys from participating as custody mediators would adversely affect mediation programs by reducing the number of qualified mediators.

 The Committee recognized the benefit that mediation provided to the courts and custody litigants in the amicable resolution of child custody cases. As set forth in Chapter 1940, mediation is a process for alternate dispute resolution of child custody cases; however, mediation is not a non-record proceeding as contemplated by Pa.R.C.P. No. 1915.4-3. The Committee proposed amending the Pa.R.C.P. No. 1915.4-3 to eliminate ''mediator'' from the rule in the original Recommendation 145. But since the original publication, the Committee received additional input that suggested merely deleting the term mediator from the rule text may not resolve the issue and could create other issues, as well.

 This Recommendation proposes an amendment to Pa.R.C.P. No. 1915.4-3 for the exclusion from practicing family law in the judicial district based solely on whether the attorney is presiding over the initial non-record proceeding, irrespective of the title held by the attorney in that capacity. Mediators, as defined in the proposed amendment to Pa.R.C.P. No. 1915.1 and as qualified in Pa.R.C.P. No. 1940.4, do not preside over custody conferences, hearings and non-record proceedings; rather, mediators engage custody litigants in alternate dispute resolution pursuant to Chapter 1940 of the Rules of Civil Procedure and, as such, the preclusion from practicing family law in the same judicial district in which the mediator is appointed is inapplicable.

 Additionally, the Committee proposes an amendment to Pa.R.C.P. No. 1915.1 by adding additional definitions. The inclusion of some of the definitions is to standardize the terminology used in the custody process and to identify the court personnel by title and, in some cases, qualifications.

[Pa.B. Doc. No. 16-2066. Filed for public inspection December 2, 2016, 9:00 a.m.]

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