1681 Proposed amendment of Pa.R.C.P. No. 1915.4-3

Title 231—RULES OF
CIVIL PROCEDURE

PART I. GENERAL

[ 231 PA. CODE CH. 1915 ]

Proposed Amendment of Pa.R.C.P. No. 1915.4-3

[45 Pa.B. 5676]
[Saturday, September 19, 2015]

 The Domestic Relations Procedural Rules Committee is planning to propose to the Supreme Court of Pennsylvania the amendment of Pa.R.C.P. No. 1915.4-3 governing non-record proceedings in custody cases, for the reasons set forth in the accompanying explanatory 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; 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
P. O. Box 62635
Harrisburg, PA 17106-2635
Fax: [phone]
[e-mail]

 All communications in reference to the proposal should be received by November 13, 2015. 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

DAVID J. SLESNICK, Esq., 
Chair

Annex A

TITLE 231. RULES OF CIVIL PROCEDURE

PART I. GENERAL

CHAPTER 1915. ACTIONS FOR CUSTODY OF MINOR CHILDREN

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 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. [Any] A lawyer employed by, or under contract with, a judicial district or appointed by the court to serve as a conference officer or conciliator [or mediator] or 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.

PUBLICATION REPORT

 The Domestic Relations Procedural Rules Committee (''Committee'') proposes amendment of Pa.R.C.P. No. 1915.4-3 (Non-Record Proceedings. Trial), as the rule relates to the use of attorney-mediators in custody cases. This rule has recently been amended to preclude 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 the prior amendment was being considered, the Committee recognized that the judicial districts utilized various terms or titles to identify the person presiding over non-record proceedings. Therefore, ''mediator'' was added to the rule text to include those judicial districts where the term described the person presiding over non-record proceedings pursuant to Pa.R.C.P. No. 1915.4-3.

 After the effective date of the most recent amendment, the Committee received input from members of the judiciary that Pa.R.C.P. No. 1915.4-3 operated to preclude attorneys who serve as mediators pursuant to Chapter 1940 from practicing family. The comments from the judiciary 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 resolve a significant number of custody cases that would otherwise proceed through an already overburdened custody docket.

 The Committee recognizes the benefit that mediation provides 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; it is not a non-record proceeding as contemplated by Pa.R.C.P. No. 1915.4-3. Therefore, based upon this feedback, the Committee proposes amending the rule to eliminate ''mediator'' from the rule entirely.

 This proposed amendment is not intended to encourage the use of ''mediators'' in this capacity as a means of circumventing the proscription. Rather, the amendment is intended to eliminate any endorsement that ''mediators'' serving pursuant to Chapter 1940 should be presiding over a non-record proceeding pursuant to Pa.R.C.P. 1915.4-3. The Committee's proposed amendment provides for 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.

[Pa.B. Doc. No. 15-1681. Filed for public inspection September 18, 2015, 9:00 a.m.]