New Rule in Pennsylvania Results Kids’s Appearances in Custody Proceedings | Weber Gallagher Simpson Stapleton Fires & Newby LLP
Effective April 1, 2022, Pennsylvania revised an existing procedural rule of court in child custody cases. The rule covers appointment of an attorney for the child, the court’s interviewing of the child, and a child’s attendance at court proceedings. The purpose of the change is to make the rule more fair to self-represented individuals. For this post I will focus on the court’s interview of the child and the child’s attendance at any court proceedings.
The new rule states the court, which means either a judge, a hearing officer, or a custody conciliator, may interview a child in open court or in the judge’s inner-office. If the court chooses to interview the child and it is an “on-the-record” proceeding, the child’s interview is also on the record. Also, if permitted by the court, a party’s attorney or a party may observe the interview. As part of the interview process, the court shall permit either: the parties’ attorneys to question the child under the court’s supervision if all parties are represented by attorneys; or, if one or both parties are self-represented, they may submit written questions to the court which the court may include in the interview. (Emphasis added throughout.)
While the court is charged with assessing the child’s best interest and the child’s preference based on the child’s maturity and judgment, based on this rule, the court is not required to interview a child; however, for children over the age of four, where the court does not have a report from a psychologist or someone else who previously interviewed the child, the court is going to speak with the child.
If the court decides to interview the child, the interview is on the record, but the court is not required to allow attorneys or parties to observe the interview. If there is a court interview, only the court and attorneys can question the child, but parties and attorneys may submit written questions to the court which the court may use in the interview.
The final part of this revised rule states the child is not required to attend any custody proceeding unless the court has ordered the child’s attendance.
In my experience courts are protective of children. Nothing gets a custody conciliator or judge upset more than a party showing up for a custody proceeding with the child when the court has not ordered the child to appear. Similarly, for some parents it is a fear, and for others it is almost an expectation that their child is cross-examined by either the other parent or the other parent’s attorney. At least in the custody context, that scenario is close to impossible. Usually in a custody trial, the child is interviewed by the judge in the judge’s inner-office, called the judge’s chambers, with a court reporter present; the lawyers are sitting in the back of the room. I know of one judge who offers the child the services of the court’s comfort dog if the child so desires. The judge then asks the child a series of questions that are a combination of questions the judge has previously used and submitted by the attorneys. If one side has an attorney and the other does not, a similar process occurs with the child at the counsel table with the parties in the gallery behind the child so the child cannot see them.