859 Rescission and replacement of all rules governing actions for custody of minor children; doc. No. 90031-2016

ERIE COUNTY

Rescission and Replacement of all Rules Governing Actions for Custody of Minor Children; Doc. No. 90031-2016

[46 Pa.B. 2549]
[Saturday, May 21, 2016]

Order

 And Now, to wit, this 4th day of May, 2016, it is hereby Ordered that the following Erie County Local Rules of Civil Procedure governing actions for custody of minor children are adopted. The adoption of Rules 1915.1 through 1915.27 rescinds and replaces all existing local rules and administrative orders governing actions for custody of minor children in Erie County. In accordance with Pa.R.C.P. 239, these rules shall be effective thirty (30) days after publication in the Pennsylvania Bulletin.

JOHN J. TRUCILLA, 
President Judge

ACTIONS FOR CUSTODY, PARTIAL CUSTODY AND
VISITATION OF MINOR CHILDREN

Rule 1915.1. Scope.

 These rules shall govern the practice and procedure in all actions for any type of custody initiated in Erie County, Pennsylvania. These rules shall be read in conjunction with and supplement the state rules as set forth in Pa.R.C.P. Nos. 1915.1—1915.25. In the event of any conflict between these rules and the state rules, the Pennsylvania Rules shall control.

Rule 1915.3. Commencement of Action. Complaint. Order.

 (a) An original verified complaint, substantially in the form provided by Pa.R.C.P. No. 1915.15(a), and two copies per party shall first be presented to the Custody Conciliation Office prior to being filed at the Prothonotary's Office.

 (b) The custody conciliation office will assign a time and date for the conciliation conference, and attach the order provided for in Pa.R.C.P. 1915.3(b) to the original and all copies. The moving party shall then file the original pleading with the Prothonotary, and serve the responding party or parties as provided in the Pennsylvania Rules of Civil Procedure.

 (c) The custody office shall not reject any complaint for custody or modification of custody submitted for assignment of a conciliation time and date, except as provided for in subsection (d). It is the responsibility of a party objecting to jurisdiction, venue, service, standing or any other legal defect, to file and serve the proper responsive pleading, and to request a stay by the court, if appropriate, pursuant to Local Rule 1915.5.

 (d) Grandparents and all other third parties shall file according to the procedure set forth in Local Rule 1915.6 unless there is no open case involving the minor child or children.

Rule 1915.3-2. Criminal or Abuse History. Hearing.

 In addition to the requirements of Pa.R.C.P. 1915.3-2, a party may raise consideration of criminal convictions or abuse history pursuant to 23 Pa.C.S. Section 5329. The party raising a Section 5329 objection shall present a motion pursuant to Local Rule 1915.13 requesting a hearing to determine whether a party, or household member, poses a threat to a child and/or whether a party, or household member, is in need of counseling.

Rule 1915.4-1. Hearing Procedure. Bypass Custody Conciliation Conference.

 (a) Erie County shall utilize a custody conciliation conference as an initial non-record proceeding as set forth at Local Rule 1915.4-3.

 (b) A party may present a motion to bypass the custody conciliation conference to the duty judge during motion court pursuant to Local Rule 1915.13. A motion to bypass the custody conciliation may be granted in cases wherein:

 (1) there are complex questions of law, fact or both; or

 (2) there are serious allegations affecting the child's welfare.

Rule 1915.4-3. Custody Conciliation Conference. Proceedings.

 (a) Except as provided for at Local Rule 1915.17, all custody complaints and petitions for modification shall be initially referred to the Office of Custody Conciliation of Erie County, Pennsylvania for a custody conciliation conference before a custody conciliation officer.

 (b) The Conciliation Conference is not a hearing but an opportunity for parents to reach agreement early in the custody process. No evidence or testimony is presented. Ordinarily, conferences shall not last more than one hour. The objectives of the Conciliation Conference are:

 (1) To facilitate immediate agreement and the entry of consent orders where the nature of the parties' dispute is minor and can be resolved quickly without the need for trial;

 (2) To identify those cases not appropriate for resolution within the context of the conciliation process; and

 (3) To identify the need for referral to outside professionals or agencies and to provide the parties with information and other assistance needed to accomplish such referral.

 (c) All agreements reached at a Conciliation Conference, whether a full or partial agreement, shall be reduced to a Consent Agreement and shall be signed by the parties immediately upon conclusion of the proceeding. If the parties partially agree or agree to reschedule the custody conciliation conference, an interim order containing the agreed upon terms of the parties may be submitted to the duty judge for approval of the court. The parties' consent to an interim order shall not constitute the waiver to a de novo trial for any issue.

 (d) If no agreement is reached at the conciliation conference, the case shall be promptly referred by the Custody Conciliation Office to Family Court Administration for trial. The conciliation officer shall prepare a summary report detailing the parties' respective positions, which shall be filed and submitted to the court and the parties.

 (e) The Custody Conciliation Officer may refer custody matters directly to the Court if appropriate.

 (f) Participation in Conciliation Process:

 (1) Children and Third Parties: Children and third parties, other than attorneys, shall not be present for or participate in custody conferences. Exceptions may be made at the discretion of the Court.

 (2) Parties must participate in conferences in a cooperative manner and at all times adhere to the directives of the person conducting the conference.

 (3) Prior to agreeing to a custody order, a party may consult with her or his attorney, and a reasonable opportunity to do so will be provided by the conciliator.

 (g) An attorney who attends a Conciliation Conference with a client will participate consistent with the following standards:

 (1) The manner and scope of participation in conferences shall be determined by the conciliator;

 (2) Attorneys shall fully cooperate with the efforts of the custody conciliator to facilitate the agreement of the parties;

 (3) Counsel shall at all times behave in a professional manner and refrain from engaging in hostile or antagonistic conduct directed toward any conference participant;

 (4) Attorneys shall advise their clients in a manner not disruptive of the conciliation process which may require consulting with the client outside the conference room;

 (5) Attorneys shall not engage in legal argument, except that counsel may advise of legal issues relevant to the formation of an interim or consent order;

 (6) Counsel shall not attempt to question the other party, present evidence or engage in conduct characteristic of any adversarial proceedings;

 (h) At any time during the conciliation process the conciliator may terminate the proceedings and refer the case to court.

Rule 1915.4-4. Pre-trial Procedures. Status Conference.

 A pre-trial status conference in an initial custody or modification proceeding may be scheduled before a judge at the request of a party by praecipe or sua sponte by the court pursuant to Pa.R.C.P. No. 1915.4-4, with copies of the praecipe served to the assigned judge. The purpose of the status conference is to define matters to be raised before the court at the de novo trial, including all legal and factual issues, and to address unique evidentiary issues.

Rule 1915.5. Question of Jurisdiction, Venue or Standing. Preliminary Objections.

 A party raising preliminary objections in accordance with Pa.R.C.P. No. 1915.5 shall, prior to filing, present the preliminary objections to Family Court Administration for assignment to a judge and scheduling of a date and time for a hearing. Thereafter, the moving party shall file the original pleading with the Prothonotary and serve the objections and notice of hearing in accordance with the Pennsylvania Rules of Civil Procedure.

Rule 1915.6. Joinder of Parties.

 Grandparents and all other third parties seeking any type of custody of a minor child with an open custody docket before this court shall present a Motion to Intervene to the duty judge at Motion Court. Notice to all responding parties must be provided pursuant to Local Rule 440, and certificate of notice must be attached to the motion. If the motion raises contested issues, the duty judge may issue a Rule to Show Cause. The signed Rule to Show Cause Order shall be presented to Family Court Administration for assignment to a judge and scheduling of a date and time. Thereafter, the moving party shall file the original pleading with the Prothonotary and provide for service pursuant to the Pennsylvania Rules of Civil Procedure.

Rule 1915.12. Civil Contempt for Disobedience of Custody Order. Petition.

 In addition to the requirements of Pa.R.C.P. No. 1915.12, the original contempt petition with notice and order, and a photo copy, shall be presented to Family Court Administration for assignment to a judge and for scheduling of a date and time for the contempt hearing. Thereafter, the moving party shall file the original pleading with the Prothonotary and provide for service pursuant to the Pennsylvania Rules of Civil Procedure.

Rule 1915.13. Special Relief.

 Motions for Special Relief shall be presented to the duty judge during Motion Court. The motion must allege, with specificity, the need for the court to enter interim or special relief. Notice to all responding parties must be provided pursuant to Local Rule 440, and certificate of notice must be attached to the motion. If the motion raises contested issues, the duty judge may issue a Rule to Show Cause. The signed Rule to Show Cause Order shall be presented to Family Court Administration for assignment to a judge and scheduling of a date and time. Thereafter, the moving party shall file the original pleading with the Prothonotary and provide for service pursuant to the Pennsylvania Rules of Civil Procedure.

Rule 1915.17. Relocation.

 (a) A party proposing to relocate with a minor child shall follow the procedures set forth at Pa.R.C.P. 1915.17.

 (b) If the non-relocating party has no objection to relocation and no objection to modification of the custody order consistent with the relocating party's proposal for revised custody schedule, the parties may obtain an order approving the proposal for revised custody schedule by presenting a Petition to Confirm Relocation with the agreed upon custody order before the duty judge at Motion Court.

 (c) If the non-relocating party files a counter-affidavit objecting to either the relocation or to modification of the order, any party may either:

 (1) obtain an expedited full hearing on the proposed relocation by presenting copies of the relocation notice, the counter-affidavit, the complaint for custody or petition for modification, whichever is applicable, and a request for hearing to Family Court Administration.

 or

 (2) may waive their right to an expedited hearing and participate in a custody conciliation conference by obtaining a time and date from the custody conciliation office in addition to following the filing requirements of Pa.R.C.P. No. 1915.17. Thereafter, the moving party shall file the original pleading with the Prothonotary and provide for service pursuant to the Pennsylvania Rules of Civil Procedure.

 (d) If the non-relocating party was properly served notice of proposed relocation and has failed to timely object, the party proposing relocation, in addition to following the requirements of Pa.R.C.P. No. 1915.17(e), shall present a Petition to Confirm Relocation with a proposed order including the information set forth at 23 Pa.C.S. Section 5337(c)(3) to the duty judge at Motion Court. Thereafter, the moving party shall file the original pleading with the Prothonotary and provide for service pursuant to the Pennsylvania Rules of Civil Procedure.

Rule 1915.26. Children Cope with Divorce.

 (a) All parties participating in custody proceedings must attend the Children Cope With Divorce program. A copy of the brochure providing information on the program must be included in all complaints involving parties that have not previously attended the program.

 (b) Subsequent proceedings and the entry of any order or decree shall not be delayed because of the lack of participation in the Children Cope With Divorce program.

 (c) Any party seeking to waive the costs of participating in the Children Cope With Divorce program shall present an appropriate motion before the duty judge at Motion Court.

Rule 1915.27. Cancellation of Custody Proceedings.

 (a) A scheduled custody conciliation conference may not be cancelled without the written consent of the parties, or leave of court. If a responding party does not consent to cancel a conciliation conference, a motion to cancel may be presented in motion court by the requesting party with proper notice pursuant to Local Rule 440.

 (b) If none of the parties appear for a scheduled custody conciliation conference, the conciliation officer will prepare and send a proposed Order to the duty judge that indicates the custody conciliation conference is cancelled, and that the pleading is dismissed without prejudice.

 (c) If any one party fails to appear for a scheduled custody conciliation conference and all parties have been served, the appearing party or parties may:

 (1) reschedule the custody conciliation conference; or

 (2) request an immediate referral for a de novo trial; or

 (3) request dismissal of the pleading without prejudice.

 If the appearing party or parties request to reschedule the custody conciliation conference, the appearing party or parties are responsible for serving notice of the rescheduled conference. If the appearing party requests an immediate referral for a de novo trial, the case shall be promptly referred by the Custody Conciliation Office to Family Court Administration for scheduling of a trial.

 (d) If the complaint or petition has not been served, the conciliation conference may be rescheduled at the request of the appearing party or parties. The custody conciliation office will prepare a new notice and order to be filed and served by the appearing party or parties, along with the petition and complaint and other documents required to be filed with the complaint.

 (e) A scheduled de novo trial shall not be cancelled without leave of court. A motion to cancel the de novo trial shall be presented to the judge assigned to the custody trial. If all parties agree to the trial's cancellation, signed consent of the parties shall be attached to the motion.

[Pa.B. Doc. No. 16-859. Filed for public inspection May 20, 2016, 9:00 a.m.]