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Lehigh County Office of Family Court Staff

Honorable Douglas G. Reichley Family Court Administrative Judge

Richard P. Focht, Esq.

Family Court Administrator Shelly Kovalchick Vanessa Nicklin Colleen Weber Court Operations Officer Office Manager Court Operations Officer

Georgette Chehoud Court Operations Officer

Custody Hearing Officers Richard P. Focht, Esq.

Don Klein, Esq. Teresa Resendez, Esq.

Danashari Rohlsen, Esq.

Divorce Master John Roberts, Esq.

Office Staff

Wendy Bartholomew Kristen Harlacher

Zulmaris Laboy Nieves Barbara Staley

Rosalynn Rodriguez Sahiry Sierra Cabrera

Temis Valdez Paige White

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Table of Contents

Overview of Functions of the Family Court Office 03 Statement of Facts 05 Judge Johnson 05 Judges Reibman, Reichley, and Varricchio 06 Judge Pavlack 07 Special Interest Topics 09 Custody Conferences 09 Interim Orders by Agreement 10 Special Relief Petitions 11 Petition for Special Relief / Petition for Contempt / Petition for Modification 12 Motion vs. Petition; Emergency Motions/Petitions 13 Emergency Motions 14 Petitions to Withdraw as Counsel 15 Lehigh County Civil Division Fee Schedule 16 23 Pa.C.S.A. § 5329.1 – Lehigh County OCYS Information in Custody Cases 17 Continuance Requests 18 Telephone Participation 19 Child Interviews and Transcripts of Child Testimony 20 Parenting Coordination 22

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OVERVIEW OF FUNCTIONS OF THE FAMILY COURT OFFICE

The Lehigh County Family Court Office is located on the fourth floor of

the Lehigh County Courthouse in Room 423. The office provides some clerical

assistance to pro se litigants and family law attorneys regarding child custody

and protection from abuse cases. Custody Hearing Officers and the Master in

Divorce conduct conciliation and settlement conferences respectively.

Custody Hearing Officers also conduct partial physical custody hearings and

the Master in Divorce conducts divorce hearings. Child mediation and court

interpretation services are also provided through the Family Court Office.

There are currently nine full-time clerical staff and two part time staff in

the Family Court Office. There are also four Custody Hearing Officers, two of

whom are part time in terms of scheduling conferences. One Master in Divorce

serves in the office. One hearing room is utilized by the professional staff for

hearings as needed.

Original and subsequent pleadings in custody cases are filed in the Clerk

of Judicial Records Office in Room 122 on the first floor of the Courthouse

where filing fees are paid. Copies of pleadings should be brought to the Family

Court Office for scheduling purposes before having them filed in the Clerk’s

Office. Agreements or stipulations should be filed in the Clerk’s Office and a

copy should be brought to the Family Court Office for processing.

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Most of the clientele served by the Family Court Office are pro se

litigants. Clerical staff provide a measure of clerical assistance to PFA

applicants through an in-take process each morning during the hours of 8:00

a.m. to 12:00 p.m. on a first come, first served basis. Similarly, custody in-

take services are offered to pro se litigants in the afternoon during the hours

of 12:15 p.m. to 3:00 p.m. on a first come, first served basis. Clerical staff

do not provide legal advice. Attorney in-take services are offered between the

hours of 8:00 a.m. to 3:45 p.m.

Custody conferences are scheduled every week, on Mondays, Tuesdays,

Thursdays, and Fridays, with Wednesdays generally reserved for expedited

custody conferences that are ordered by the Court regarding certain Petitions

for Special Relief.

Counsel in custody cases can utilize Family Court staff to schedule

custody cases for specific dates convenient for the attorneys of record.

Custody petitions and related documents are available to download

online at www.lccp.org. The following are available: Complaint for Custody,

Petition for Modification, Petition for Contempt, Petition for Relocation,

Counter-Affidavit Regarding Relocation, Praecipe for Self-Representation/

Address Change/ Removal of Counsel, Public Access Policy Documents,

Continuance Application, COPE Registration, Telephone Participation Request,

and Request for Transcript.

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Judge Johnson

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Judges Reibman, Reichley, and Varricchio

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Judge Pavlack

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SPECIAL INTEREST TOPICS

Custody Conferences

After a custody action is filed, a custody conference is scheduled before a Custody Hearing Officer within 45 days from the date the complaint or petition is filed. Pa.R.C.P. 1915.4. In Lehigh County, complaints for custody, petitions for modification, and petitions for contempt are scheduled for an office conference except where the parties reach an agreement in mediation. Leh.R.C.P. 1915.4(a). Conferences are conducted by a Custody Hearing Officer. Pa.R.C.P. 1915.4-2(a)(1). Conferences may be held ex parte where the non-moving party fails to appear. Rule 1915.4-2(a)(3) sets forth three provisions governing the conduct of conferences and the entry of an order:

(1) The conference officer may make a recommendation to the parties relating to partial custody or supervised physical custody of the child or children.

(2) If an agreement for partial custody or supervised physical custody is

reached at the conference, the conference officer shall prepare a written order in conformity with the agreement for signature by the parties and submission to the court together with the officer's recommendation for approval or disapproval.

(3) The court may enter an order in accordance with the agreement without

hearing the parties. Id. 1915.4-2(a)(3). If an agreement is not reached, the parties are notified of the date and time of a hearing:

(1) Claims for partial physical custody shall be scheduled for a hearing before a hearing officer in accordance with Pa.R.C.P. 1915.4-2;

(2) Claims for contempt shall be scheduled for a hearing before a judge; and (3) Claims for legal custody and claims for primary or shared physical custody

shall be scheduled for trial before a judge. Leh.R.C.P. 1915.4(b). In these instances, the Custody Hearing Officer “shall prepare a memorandum for the court and parties setting forth relevant information about the parties and a summary of the information presented at the conference.” Leh.R.C.P. 1915-4-3.

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Interim Orders by Agreement The interim order is intended to only be valid for the interim period between the custody conference and the custody trial. The parties can agree to make the interim order final if they wish; however, an interim custody order is not a final order. See Kassam v. Kassam, 811 A.2d 1023, 0125 (Pa. Super. 2002). After an interim order is entered, if the parties have not reached an agreement as to the entry of a final order, the matter must be listed for trial. Pa.R.C.P. 1915.4(b), (c); Leh.R.C.P. 1915.4(b)(3). Custody matters receive one office conference. If the matter is not resolved at that office conference, even if an interim order is entered, the matter is scheduled for a trial, not for a follow-up conference. The parties may elect to adopt the terms of the interim order and agree that it should serve as a final order. However, the interim order is temporary;it is not intended to be a dry run delaying a custody trial before the Court. See J.M. v. K.W., 164 A.3d 1260 (Pa. Super. 2017) (“[A]n interim custody order is ephemeral and subject to further modification upon petition.”) Parties are encouraged to enter into agreement with one another on matters involving custody, and may agree on terms of an interim order pending trial. Practitioners are cautioned that these Interim Orders by Agreement are temporary and function solely to hold the parties over until a final order may be entered by the Court considering the factors identified in Section 5328.

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Special Relief Petitions

At any time after commencement of the action, the court may on application or its own motion grant appropriate interim or special relief. The relief may include, but is not limited to, the award of temporary legal or physical custody; the issuance of appropriate process directing that a child or a party or person having physical custody of a child be brought before the court; and a direction that a person post security to appear with the child when directed by the court or to comply with any order of the court.

Pa.R.C.P. 1915.13.

Lehigh County requires the simultaneous filing of either a Complaint for Custody (when seeking to establish custody) or a Petition for Modification (when seeking to change an existing custody order).

Leh. R.C.P. 1915.13 Special Relief.

(a) A petition for special relief requires the simultaneous filing of either 1) a complaint for custody when the petition seeks to establish custody or 2) a petition for modification when the petition seeks to change an existing custody order. The complaint or petition for modification shall be scheduled in the normal course of operations.

(b) A party seeking special relief may present a petition to Family Court Administration for scheduling or present a petition pursuant to Lehigh County Rules of Civil Procedure.

(c) The party seeking relief shall serve the filed petition and file proof of service prior to the hearing in accordance with Pennsylvania Rules of Civil Procedure.

(d) Relief granted without notice of hearing to the opposing party or parties shall be an interim order. The court shall direct the scheduling of a hearing after notice is provided to the opposing party.

“A petition for modification must be filed in order for a court to review a case for permanent modification of a custody order.” S.W.D. v. S.A.R., 96 A.3d 396, 405 (Pa. Super. 2014). Pennsylvania’s notice requirements mandate that a party provide notice to the opposing party of her intent to request a modification of the parties’ custodial arrangements. Id.

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Petition for Special Relief / Petition for Contempt / Petition for Modification Pennsylvania appellate case law has excused the failure to file a pleading entitled “petition to modify custody” where a party files a petition and “notice of the proceeding adequately advises a party that custody will be at issue.” S.W.D., 96 A.3d at 405-06. In C.A.J. v. D.S.M., 136 A.2d 504 (Pa. Super. 2016), the Father filed a Petition for Contempt which expressly indicated he was seeking primary custody. Mother argued she was denied due process when the trial court entered an order modifying the parties’ custody order because Father failed to file a Petition for Modification. Id. at 507. The Superior Court found that the Court was authorized to modify the custody order on the basis of the Petition for Contempt:

“[I]f the parties had notice that custody would be at issue, the court is permitted to modify custody without a pending petition for modification.”

Id. at 509.

The C.A.J. holding indicates that a court did not err when it modified custody based on a request for primary custody in a Petition for Contempt.

C.A.J. does not mandate that courts forego the practice of filing a Petition

for Modification when seeking to change custody. As a practice matter: Relief Sought: Necessary Filing: Contempt Petition for Contempt Special/Emergency Petition for Special Relief Relief without changing underlying custody order Any change in legal or Petition for Modification physical custody

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Motions vs. Petition; Emergency Motions/Petitions Filing Fee: Any Family Court Motion / Petition: $28.50 In general, the Rules of Civil Procedure governing motions are inapplicable to Family Court motions. Pa.R.C.P. 208.1(b)(2)(iv). However, as a practice matter, Lehigh County permits the presentation and disposition of certain family court-related motions during walk-in motions court. Motions presentable during the Family Motions Judge’s walk-in motions are generally limited to:

(1) Uncontested/unopposed motions,

(2) Motions to withdraw as counsel,

(3) Motions for special service, and

(4) Emergency motions.

See Leh.R.C.P. 208.3(a)(1). Motions must be filed with the Clerk of Judicial Records and a copy of the filed motion as well as an original proposed order must be delivered to Family Court and presented in court. Additionally, notice must be provided as follows:

(1) Five days’ advance written notice of the date, time and place of the intended presentation of the motion provided to the judge, all counsel of record, and all unrepresented parties, together with a complete copy of the motion, or

(2) In the case of an emergency, the movant shall make a good-faith effort to notify all opposing counsel of record and all unrepresented parties as soon as possible of the intended presentation of the motion, and shall describe those efforts in the motion.

See id. 208.3(a)(6). Motions are generally heard on argument. See Leh.R.C.P. 208.3(a)(5). Therefore, do not bring witnesses to motions court. In most instances, movants should not anticipate that the motions judge will conduct a full hearing.

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“Emergency Motions” – Presenting a Petition for Special Relief in Motions Court

Neither the Pennsylvania Rules of Civil Procedure nor the Lehigh County Rules of

Civil Procedure offer special provisions recognizing the existence of “emergency

motions” in custody. Rather, the proper vehicle is a Petition for Special Relief and, if

applicable, a concomitantly-filed Petition for Modification seeking immediate temporary,

interim relief until a conference or hearing can be scheduled on the respective petitions

in conformity with the local rules. The judge may briefly receive testimony from the

parties at that judge’s sole discretion. As noted above, counsel are strongly discouraged

from bringing witnesses to motions court.

Even in this context, Petitions for Special Relief and Petitions for Modification must

comply with the rules set forth above pertaining to both notice to opposing counsel,

unrepresented parties, and the court and the filing requirements. Do not present an un-

filed motion in walk-in motions court.

An “emergency motion,” if granted, will result in the entry of a temporary/interim

custody order, or an order governing partial custody and/or visitation. Pa.R.C.P. 1915.13

cmt. The matter will be listed for a custody conference pursuant to Leh.R.C.P.

1915.4(a). At the discretion of the judge to whom the motion was presented, the matter

may be listed for an expedited conference (typically scheduled for a Wednesday).

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Petitions to Withdraw as Counsel

Pennsylvania Rule of Professional Conduct 1.16 mandates withdrawal as counsel

where the lawyer’s continued representation of the client violates the Rules of

Professional Conduct or other law, the lawyer’s physical or mental condition impairs his

or her ability to represent clients, or the lawyer is discharged. Pa.R.P.C. 1.16(a).

A lawyer may withdraw from representing a client if:

(1) Withdrawal can be accomplished without material adverse effect on the interests of the client;

(2) The client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;

(3) The client has used the lawyer's services to perpetrate a crime or fraud;

(4) The client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;

(5) The client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;

(6) The representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or

(7) Other good cause for withdrawal exists.

Id. 1.16(b). A Motion or a Petition to Withdraw as Counsel constitutes a “Family Court Motion/ Petition” for which a fee of $28.50 will be imposed regardless of whether it is styled as a motion or a petition.

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23 Pa.C.S.A.5329.1- Lehigh County OCYS Information in Custody Cases Pennsylvania law requires that courts consider child abuse and involvement with protective services when parties seek custody of a child. 23 Pa.C.S. §§ 5328(a)(2.1), 5329.1(a). Moreover, Pennsylvania requires that public entities cooperate and assist the court in fulfilling its duties in these matters as follows:

(a) Information sharing.--In accordance with section 6340(a)(5.1) (relating to release of information in confidential reports), where a party seeks any form of custody, subject to the examination of the parties, the court shall determine:

(1) With respect to child abuse under Chapter 63 (relating to child protective services) or a child who is a victim of a crime under 18 Pa.C.S. (relating to crimes and offenses) which would constitute abuse under Chapter 63:

(i) Whether the child is the subject of an indicated or founded report of child abuse. (ii) Whether a party or a member of the party's household has been identified as the perpetrator in an indicated or founded report of child abuse. (iii) The date and circumstances of the child abuse. (iv) The jurisdiction where the child abuse investigation took place.

(2) With respect to child protective services or general protective services under Chapter 63:

(i) Whether a party or a member of a party's household has been provided services. (ii) The type of services provided. (iii) The circumstances surrounding the provision of services. (iv) The status of services. (v) The date the services were provided. (vi) The jurisdiction where the services were provided.

(b) Cooperation.--The following apply:

(1) The Department of Public Welfare and the county children and youth social service agency shall fully cooperate with the court and assist the court in fulfilling its duties under this section. (2) The Department of Public Welfare and the county children and youth social service agency shall fully cooperate with the governing authority in order to implement the provisions of this section . . . .

Reports prepared in the context of an investigation by the Lehigh County Office of Children and Youth Services may be provided to the Court of Common Pleas “in connection with any matter involving custody of a child as set forth in sections 5328 . . . and 5329.1. 23 Pa.C.S. § 6340(a)(5.1).

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Continuances Requests

“All applications for continuance shall be made by the attorney of record or self-represented litigant using the Family Court Division Application for Continuance form and presented to Family Court Administration. A party dissatisfied with the continuance decision of a hearing officer or the family court administrator may appeal the decision to the assigned judge, or if no judge is assigned, to the family court motions judge.” Leh.R.C.P. 1915.4(g).

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Telephone Participation

Telephonic Participation in General “With the approval of the court upon good cause shown, a party or witness may be deposed or testify by telephone, audiovisual or other electronic means at a designated location in all domestic relations matters.” Pa.R.C.P. 1930.3. Telephone Participation for Custody Conferences “A request to participate by telephone shall be made in writing to the assigned hearing officer and shall only be granted upon good cause shown.” Leh.R.C.P. 1915.4-2(c)(1). Recently, the Pennsylvania Superior Court addressed phone participation in a hearing before a Master of Divorce in Fotopoulos v. Fotopoulos, 185 A.3d 1047 (Pa. Super. 2018), which originated out of Lehigh county. The Master granted a phone participation request for Wife’s expert witness, a medical expert, without a court order. Husband challenged the request on appeal. The Superior Court examined Lehigh County’s local rule and held that the Master retained the discretion and authority to rule on the admissibility of telephonic testimony as follows:

The rules of civil procedure expressly provide that court-appointed masters may preside over hearings in equitable distribution matters. See Pa.R.C.P. 1920.55–2. In doing so, it is contemplated that masters will rule on evidentiary matters, including the admissibility, scope, and manner of introducing expert testimony. The parties may file exceptions to “the report or any part thereof, to rulings on objections to evidence, to statements of findings of fact, to conclusions of law, or to any other matters occurring during the hearing.” Pa.R.C.P. 1920.55–2(b). The trial court hears argument on the exceptions and enters a final decree. Thus, the court approves or disapproves the master's recommendations, rulings, and findings. We are not persuaded by Husband's argument that the language of the Rule requiring court approval mandates that the trial court issue an order permitting telephonic testimony. Where a court order is required, the rules so state. For instance, Pa.R.C.P. 1920.61 specifies that, in the case where a party seeks to take testimony outside the county, that party must file a motion, and the trial court “may authorize and direct the master to take the testimony” of such witnesses upon certain terms. Pa.R.C.P. 1920.61. In contrast, Rule 1930.3 only requires court approval, and there is no language mandating that approval take the form of a court order, or that the approval precede the master's ruling.

Fotopoulos v. Fotopoulos, 185 A.3d 1047, 1052 (Pa. Super. 2018)

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Child Interviews and Transcripts of Child Testimony Child Interviews – Judicial Discretion & Presence by Counsel

Unless otherwise directed by the court, the child who is the subject of the action shall not be required to attend a hearing before the court or a conference.

Note: A party may bring a child to a conference or hearing but, in the absence of an order of court, is not required to do so.

Pa.R.C.P. 1915.11(c).

The court may interview a child, whether or not the child is the subject of the action, in open court or in chambers. The interview shall be conducted in the presence of the attorneys and, if permitted by the court, the parties. The attorneys shall have the right to interview the child under the supervision of the court. The interview shall be part of the record.

Id. 1915.11(b). It is within the discretion of the Court to elect whether or not to interview a minor child. The Court’s decision is reviewed for an abuse of discretion, mindful of the fact that the well-reasoned preferences of the child is one factor among many. See T.D. v. E.D., 194 A.3d 1119 (Pa. Super. 2018) (trial court’s failure to interview eight-year-old child about proposed flight to visit father as an unaccompanied minor when court reasonably considered child’s anticipated testimony and weighed it against practical concerns regarding an unaccompanied minor of that age flying from Pennsylvania to Massachusetts). The “right to interview the child” does not mandate that attorneys be permitted to directly question the child. In A.O. v. M.O., 856 A.2d 1204 (Pa. Super. 2004), the Pennsylvania Superior Court approved of the following approach:

[D]uring the questioning [of the minor child], the Court asked its own questions, but also asked the Child questions at the request of the attorneys. [The trial court] did at one point ask the attorneys if they had any other questions they wanted him to ask. As noted [in the trial court’s 1925(a) Opinion]:

The Court believed that such an approach was the best way to make [Child] feel comfortable and, in turn, provide candid answers. And so, by allowing the attorneys to ask the Child questions through the Court, the requirements of Pa.R.C.P. 1915.11(b) were met.

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We believe [the trial court] did an excellent job of considering all the issues and providing the parties a full opportunity to be heard. He reached a reasonable and sensible decision and crafted a solution that is fair to both parents and in the Child’s best interests.

A.O., 856 A.2d at 1208. Transcription of Child Interviews Neither parties nor counsel may waive the requirement that the interview of the child be on the record. Pa.R.C.P. 1915.11(b); Cyran v. Cyran, 566 A.2d 878 (Pa. Super. 1989). Failure to transcribe the interview precludes adequate appellate review. Commonwealth ex rel. Scott v. Rider, 375 A.2d 149, 151 (Pa. Super. 1977). The testimony of the minor child(ren) at issue may be maintained as confidential. Id. “Assuming a valid waiver of attendance of counsel by the parties, the children’s interest in confidentiality could be protected by impounding the relevant portion of the record.” Id. On appeal, the full and complete transcript, including the child interview, must be provided to the Pennsylvania Superior Court. However, it could be subject to nondisclosure if counsel validly waive their right to be present during the interview.

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Parenting Coordination

Effective March 1, 2019:

If a judicial district implements a parenting coordination program, the court shall maintain a roster of qualified individuals to serve as parenting coordinators and establish the hourly rate at which parenting coordinators shall be compensated. The parenting coordinator shall attempt to resolve issues arising out of the custody order by facilitating an agreement between the parties and, if unable to reach an agreement, recommend a resolution to the court.

Pa.R.C.P. 1915.11-1.

Lehigh County has not implemented a Parenting Coordination program at this time.