Montgomery County’s New Custody Procedure Emphasizes Child StabilityDecember 6, 2018 – Articles The Legal Intelligencer
The Family Law Section of the Montgomery County Bar Association recently held its annual Toby L. Dickman seminar focusing, this year, on an overhaul to the Montgomery County Family Court’s custody procedure. These revisions are the result of a multi-year effort initiated by President Judge Thomas M. DelRicci and developed by Family Court Administrative Judge Carolyn Carluccio and Judge Daniel Clifford incorporating the experience and opinions of judges, conciliators, attorneys and litigants. Montgomery County’s goal is to decrease the time between a petitioner’s filing date and the issuance of a final custody order and foster a system where each stage of the process can be a meaningful opportunity for resolution. Through these improvements to the custody procedure, DelRicci intends to avoid having a child “suffer from the paralysis of marital instability longer than was absolutely necessary.” Here are some of the highlights:
Our Children First Seminar
The Our Children First seminar is typically a litigant’s first involvement with the custody process and has been the subject of an extensive reexamination of both the substantive information provided in the seminar, as well as its format. For many litigants, this seminar may be the only co-parenting education they receive and represents a valuable opportunity to educate parents on practical communications tools in an effort to foster productive co-parenting relationships. The four-hour seminar has been reduced to two hours to increase participants’ retention of a more pointed program, as well as to better accommodate work and child-care schedules. The evolution of the seminar will eventually encompass increased utilization of technology and other tools to improve accessibility by participants.
Another aspect of the custody process traditionally met with mixed results is the “mandatory” mediation session with an assigned attorney or therapist. While mandatory by rule, in practice attendance at mediation is approximately 30 percent without any effective means of enforcement by the court. The realistic effect of low mediation participation is that 70 percent of cases filed in Montgomery County never have an opportunity to be resolved in a collaborative way. Though mediation may never resolve a significant portion of the overall caseload, greater participation would undoubtedly result in more settlements and more cases routed out of the system. Under the new system, attendance will be mandatory with a nonparticipating party (or parties) exposed to sanctions by the court.
Aside from the form custody order discussed below, the most significant changes are occurring in the custody conciliation level. Effective Jan. 1, 2019, custody conciliators will be able to issue interim custody orders for cases that do not have an existing order. At the conclusion of a conciliation conference, the conciliator submits an interim order and recommendation to the assigned judge who has the final discretion for entering it as an interim order. The existing process may not produce a custody order for several months, thus leaving the parties and the child without any meaningful resolution or in custodial arrangements prejudicial to a party or the child. The impact of this revision to the custody process is that the child receives some immediate certainty about the custody schedule and parties have the benefit of conciliator’s insight as articulated through their recommendation and interim order.
Other changes at the conciliation stage include clarity for parties and counsel for interviewing children by the conciliator and better internal procedures for dealing with custody relocation cases, particularly those requiring an expedited decision. More broadly, all relocation cases are to be adjudicated within 120 days from a party filing their petition—a time-frame inclusive of filing, service, discovery and custody conciliation
Through the expansion of the conciliator’s role in this process, there is an increased emphasis on the parties and counsel to be prepared to present their case at the conciliation conference and to implement the terms of an interim order. Moreover, the court expects attorneys of record to appear for conciliation conferences and short-list hearings. While this may seem axiomatic, it is not an uncommon occurrence in the Family Court for parties to save legal fees by attending conciliations conferences and short-list hearings without their attorneys. Montgomery County judges have made the elimination of this practice a point of emphasis for some time.
With the increased substantive impact of conciliation conferences and short-list hearings, the court will not tolerate this practice at any level. Conciliators will have the authority to request the judge enter sanctions against counsel for failing to appear, while a filing party may have their petition dismissed and a responding party have an adverse interim order entered (upon proof of service by the filing party). The prospect of an adverse interim order makes sending (or allowing) a client to attend a conciliation conference on their own an invitation to professional liability issues.
Short List and Protracted Hearings
The individualized rules employed by each judge for their short-list hearings will be replaced with a standardized procedure requiring in-person attendance of the parties and counsel to address settlement discussions or, at a minimum, narrowing issues for trial. The new system places a greater onus on the parties and attorneys to be familiar with their requirements for trial, such as the witnesses they intend to call, the time it will take to present their case, and the identity and availability of any expert they intend to employ.
Short-list hearings will also be the stage of the process when the judge determines if and how to interview the child. Child interviews will be in camera and on the record, but the judge will determine at that time who attends the interview and what, if any, questions the parties or counsel will submit.
Trial dates are firm and continuances will only occur under extenuating circumstances and within the same cycle as the scheduled date. A continuance request after the short-list hearing due to finding out your key witness is on vacation schedule will not likely find a sympathetic ear.
A New Custody Order
Finally, the court has developed a uniform custody order specifically designed for ease of use by the parties, as well as law enforcement, caregivers, school administrators or any other third party who may need to review the order. The new order combines a “check box” format with room for additional details as needed, but can serve as a complete recitation of the custody terms without elaboration. It comprehensively covers legal and physical custody, holidays, transportation and communication, and incorporates some of the existing “code of conduct” provisions into the body of the order thereby strengthening the enforceability of prohibitions against disparaging remarks about the other party, or being under the impairment of alcohol while having custody of the children.
The added advantage to this standardized order is that it will make for easier and immediate compliance with revised Pennsylvania Rule of Civil Procedure 1915.7(b) that allows for on-record recitation of agreed orders, but requires a written memorialization of the agreement. Eliminating stylistic and language variations among custody orders will serves the overarching policy goal of these new rules.
Other meaningful aspects of Montgomery County’s revised custody procedure includes clarity on the involvement of guardian ad litems and child advocates, as well as the creation of a Family Justice Advisory Board that will serve as a standing board to review, revise, and propose improvements to Montgomery County’s overall Family Court system. This new system formally goes into effect Jan. 1, 2019, but the document forms will be available on the county website soon and many of the judges are already incorporating them into their courtrooms. Time will be the ultimate arbiter as to the effectiveness of this system, but there is great optimism that this custody procedure will prove beneficial to the practitioners, parties, and, most importantly, children involved with the Family Court system.
Reprinted with permission from the December 6 issue of The Legal Intelligencer. (c) 2018 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
This article also appeared in the Winter 2018-2019 issue of the Montgomery Bar Association's Sidebar Magazine.