custody - civil rules - appt. of atty. for child - child interview - child attendance at proceedings - Rule 1915.11

Order https://www.pacourts.us/assets/opinions/Supreme/out/Order%20-%20105020175159411240.pdf?cb=1

Rule    https://www.pacourts.us/assets/opinions/Supreme/out/atttachment%20-%20105020175159411166.pdf?cb=1

Report https://www.pacourts.us/assets/opinions/Supreme/out/report%20-%20105020175159411181.pdf?cb=1

 

SUPREME COURT OF PENNSYLVANIA DOMESTIC RELATIONS PROCEDURAL RULES COMMITTEE

ADOPTION REPORT

On January 20, 2022, the Supreme Court of Pennsylvania adopted Recommendation 2 of 2021 of the Domestic Relations Procedural Rules Committee (Committee). The Recommendation amends Pa.R.Civ.P. 1915.11. This rule addresses the appointment of a child’s attorney in a custody case, the child interview by the court, and a child attending various court proceedings. The Committee has prepared this Adoption Report describing the rulemaking process. An Adoption Report should not be confused with Comments to the rules. See Pa.R.J.A. 103, Comment. The statements contained in this Adoption Report are those of the Committee, not the Court.

The Committee received correspondence suggesting Pa.R.Civ.P. 1915.11(b) 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 counsel. Currently, Pa.R.Civ.P. 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. Moreover, the current rule permits a party’s attorney to question the child, but not a self-represented party, which was the basis for the proposed rulemaking. This specific provision creates the appearance of a disadvantage to the self-represented party by not allowing that party to put forth questions to the child that are relevant to the self-represented party’s case and, presumably, the child’s best interest. The Committee agreed this distinctively dissimilar treatment between represented and self-represented parties could impact the court’s best interest analysis. Bearing in mind the court’s overall concern in child custody cases is the child’s best interest, including the process of determining the child’s best interest, the Committee believes the Recommendation strikes a balance between the self-represented party’s right to present evidence for determining the child’s best interest and the child’s best interest in addressing the court’s questions without intimidation or fear.

The Recommendation does not substantively amend subdivisions (a) and (c) with revisions in those subdivisions limited to stylistic changes. Instead, the Recommendation’s substantive amendments are included in subdivision (b), which has been restyled, as well. This subdivision provides the court with two options for the parties or counsel to participate in the child interview. First, subdivision (b) incorporates the current rule’s provision of permitting an attorney to question the child under the court’s supervision into subdivision (b)(4)(i) but adds the qualifier requiring that all parties are represented; and second, the Recommendation adds subdivision (b)(4)(ii) as an additional option for the court to allow counsel and a self-represented party to submit to the court written questions that are directed to the child, which the court may include in its child interview.

The amendment becomes effective April 1, 2022.

 

 

 

 

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PFA - testimony of parties' therapist about threats allowed into evidence

Ryan v. Ruize – Pa. Super. – 12-14-21 – reported, precedential decision

https://www.pacourts.us/assets/opinions/Superior/out/J-S21002-21o%20-%20104984205154548011.pdf?cb=1

 

 

Held: In PFA case, trial court properly permitted fact testimony of the parties’ therapist concerning husband’s statements to her, during counseling session, that if he killed mother with a gun at their home, it would look like an accident.

 

The court held that

 

• Psychiatrist/psychologist privilege under 42 Pa. C.S. 5944 did not apply, by definition, to the therapist, who was not part of a treatment team that included a psychiatrist or psychologist, Farrell v. Regola, 150 A.3d 87 (Pa. Super. 2016); Commonwealth v. Simmons, 719 A.2d 336, 343 (Pa. Super. 1998) (counselor’s title not dispositive)

 

• Privilege under 42 Pa. C.S. 5948 for confidential communications to a “qualified professional” in divorce or custody cases did not apply to PFA cases.

 

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This case is also reported in the PLAN Legal Update, which you can access and search without a password.

 

 

 

LEP - license suspension - refusal to allow blood test - knowing, conscious refusal

Vasquez-Santiago v. Penn DOT – Cmwlth. Court – en banc – January 4, 2022

https://www.pacourts.us/assets/opinions/Commonwealth/out/453CD20_1-4-2220220104_093106_6037417.pdf?cb=1

 

Held: Licensee’s lack of understanding of the English language prevented him from making a knowing and conscious refusal of a chemical blood test because he could not understand the consequences of a refusal.  The trial court court’s “finding of an insurmountable language barrier is supported by substantial evidence.”

 

From the opinion:

The Licensee’s inability to understand the office as he read the DL-26B Form in English prevented Licensee from understanding the consequences of his refusal to submit to chemical testing. “The law has always required that the police must tell the arrestee of the consequences of a refusal to take the test so that he can make a knowing and conscious choice.” Department of Transportation, Bureau of Traffic Safety v. O’Connell, 555 A.2d 873l 877 (Pa. 1989). To the extent that Martinovic suggests that it is “inconsequential” whether a licensee understands those consequences, Martinovic v. Department of Transportation, Bureau of Driver Licensing, 881 A.2d 30, 35 (Pa. Cmwlth. 2005), we regard this language as dicta, and conclude that it is not consistent with applicable precedent.

 

 

 

 

 

 

 

schools - residence of child where parents separated and live in different districts

H.R., a minor v. Shaler Area School District -  Cmwlth. Court – unreported opinion** - January 5,m 2022

 

https://www.pacourts.us/assets/opinions/Commonwealth/out/1008CD20_1-5-2220220105_085217_9533513.pdf?cb=1

 

This opinion discusses in some detail the law relating to where a child can go to school, where the child’s parents are separated and live in different districts.

 

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**An unreported, non-precedential Superior Court case decided after May 1, 2019, may be cited for its persuasive value, but it is not binding precedent.  See 210 Pa. Code 65.37(B).