Rule 1915.1. Scope. Definitions.

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       (b)   As used in this chapter, unless the context of a rule indicates otherwise,
the following terms shall have the following meanings:

      ‘‘action[’’ means],” 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;

      “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],” 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],” the county in which the child [immediately preceding
the time involved] lived with [the child’s] either or both parents, [a parent, or] a
person acting as a parent, or in an institution[,] for at least six consecutive months
immediately preceding the filing of the action, and 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 or herself 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;

       Note: See A.S. v. I.S., 130 A.3d 763, 766 n.3 (Pa. 2015).

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

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      “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 alternative dispute
principles in Pa.R.C.P. No. 1940.2 to resolve custody matters in whole or in part;

       ‘‘mediation,’’ the confidential process by which a neutral mediator assists
the parties in attempting to reach a mutually acceptable agreement on issues
arising in a custody action. Mediation is not a court proceeding; rather, it is an
independent, non-record proceeding in lieu of court involvement for the purpose
of assisting the parties to address the child’s best interest. An agreement
reached by the parties must be based on the voluntary decisions of the parties
and not the decision of the mediator. The agreement may resolve all or only some
of the disputed issues. The parties are required to mediate in good faith, but are
not compelled to reach an agreement. While mediation is an alternative means of
conflict resolution, it is not a substitute for the benefit of legal advice. The
participants in mediation shall be limited to the parties to the custody action,
primarily the child’s parents and persons acting as parents. Except as provided
in Pa.R.C.P. No. 1940.5(c), non-parties, including children, grandparents, and the
parties’ attorneys, shall not participate in the mediation.

      “non-record proceeding,” the initial office conference set forth in Pa.R.C.P.
No. 1915.4-3. Mediation, as outlined in Pa.R.C.P. No. 1940.1 - 1940.9, shall not be
construed as a non-record proceeding;

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

        ‘‘person acting as a parent[’’ means],” 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;

         ‘‘physical custody[’’ means],” the actual physical possession and control of a
child;

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

        ‘‘relocation[’’ means],” a change in a residence of the child [which]that
significantly impairs the ability of a non-relocating party to exercise custodial rights;



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      ‘‘shared legal custody[’’ means],” the right of more than one individual to legal
custody of the child;

      ‘‘shared physical custody[’’ means],” 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 individual to exclusive legal
custody of the child;

      ‘‘sole physical custody[’’ means],” the right of one individual to exclusive
physical custody of the child; and

       ‘‘supervised physical custody[’’ means],” 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.

       Note: The term ‘‘supervised visitation’’ in the prior statute has been replaced by
the term ‘‘supervised physical custody.’’

      Note: The definitions of the terms of the various forms of legal custody and
physical custody are taken from 23 Pa.C.S. § 5322(a).

      For additional definitions, see the Uniform Child Custody Jurisdiction and
Enforcement Act, 23 Pa.C.S. § 5402.


                             [Explanatory Comment—2008

      The Uniform Child Custody Jurisdiction Act, formerly at subchapter B of
Chapter 53 of the Domestic Relations Code, was repealed by Act 2004-39 and
replaced by the Uniform Child Custody Jurisdiction and Enforcement Act at
Chapter 54 of the Domestic Relations Code. Amendments throughout the rules
governing procedures in child custody matters were necessary to make the rules
consistent with the Uniform Child Custody Jurisdiction and Enforcement Act and
to update the citations to the statutory provisions.]




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

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or], i.e., office conference, if [no agreement is reached at]an agreement is not
finalized by 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]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.




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                           Explanatory Comment - 2018

       The amendment to this rule, in conjunction with the amendment to
Pa.R.C.P. No. 1915.1, standardizes terminology used in the custody process and
identifies court personnel by title and in some cases qualifications. Of note, the
term “mediator,” which had been included in the rule, has been omitted and is
specifically defined in Pa.R.C.P. No. 1915.1.

       As in the support rules, custody conference officers preside over
conferences and hearing officers preside over hearings. Regardless of the
individual’s title, presiding over a conference or a hearing triggers the family law
attorney practice preclusion in this rule and in Pa.R.C.P. No. 1915.4-2(b) in the
case of a hearing officer. Mediators, as defined in Pa.R.C.P. No. 1915.1 and as
qualified in Pa.R.C.P. No. 1940.4, do not preside over custody conferences or
hearings; rather, mediators engage custody litigants in alternative dispute
resolution methods 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 an attorney/mediator is appointed is inapplicable.




                                         5
Rule 1940.2. Definitions.

       As used in this Chapter, the following terms shall have the following meanings:

       ‘‘Mediation,’’ [is] the confidential process by which a neutral mediator assists the
parties in attempting to reach a mutually acceptable agreement on issues arising in a
custody action. [The role of the mediator is to assist the parties in identifying the
issues, reducing misunderstanding, clarifying priorities, exploring areas of
compromise and finding points of agreement.]Mediation is not a court
proceeding; rather, it is an independent, non-record proceeding in lieu of court
involvement for the purpose of assisting the parties to address the child’s best
interest. An agreement reached by the parties must be based on the voluntary
decisions of the parties and not the decision of the mediator. The agreement may
resolve all or only some of the disputed issues. [Parties]The parties are required to
mediate in good faith[,] but are not compelled to reach an agreement. While mediation
is an alternative means of conflict resolution, it is not a substitute for the benefit of legal
advice. The participants in mediation shall be limited to the parties to the custody
action, primarily the child’s parents and persons acting as parents. Except as
provided in Pa.R.C.P. No. 1940.5(c), non-parties, including children, grandparents,
and the parties’ attorneys, shall not participate in the mediation.

      Note: See Pa.R.C.P. No. 1915.1 for the definition of a person acting as a
parent.

       ‘‘Memorandum of Understanding,’’ [is] the written document prepared by a
mediator [which]that contains and summarizes the resolution reached by the parties
during mediation. A Memorandum of Understanding is primarily for the benefit of the
parties and is not legally binding on either party.

        ‘‘Orientation Session,’’ [is] the initial process of educating the parties on the
mediation process so that they can make an informed choice about continued
participation in mediation. This process may be mandated by the court and may be
structured to include either group or individual sessions. An orientation session may
also include an educational program for parents and children on the process of divorce
and separation and the benefits of mediation in resolving custody disputes.

                                             ***

Rule 1940.5. Duties of the Mediator. Role of the Mediator.

       (a) As part of the orientation session, the mediator must inform the parties in
writing of the following:


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              (1)    the costs of mediation;

       Note: [Rule]Pa.R.C.P. No. 240 sets forth the procedures for obtaining leave to
proceed [in forma pauperis]in forma pauperis when the parties do not have the
financial resources to pay the costs of litigation. This rule applies to court-connected
mediation services as well, so that parties without sufficient resources may file a petition
seeking a waiver or reduction of the costs of mediation.

              (2)    the process of mediation;

              (3)    that the mediator does not represent either or both of the parties;

              (4)     the nature and extent of any relationships with the parties and any
personal, financial, or other interests that could result in a bias or conflict of interest;

              (5)    that mediation is not a substitute for the benefit of independent
legal advice; and

            (6)     that the parties should obtain legal assistance for drafting any
agreement or for reviewing any agreement drafted by the other party.

       (b)    When mediating a custody dispute, the mediator shall ensure that the
parties consider fully the best interests of the child or children.

       (c)     With the consent of the parties, the mediator may meet with the parties’
children or invite other persons to participate in the mediation.

      (d)   The role of the mediator is to assist the parties in identifying the
issues, reducing misunderstandings, clarifying priorities, exploring areas of
compromise, and finding points of agreement.

                                            ***




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