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The Pennsylvania Code website reflects the Pennsylvania Code changes effective through 53 Pa.B. 7346 (November 25, 2023).

231 Pa. Code Rule 1915.11-2. Guardian <B><I>Ad Litem</B></I><B>.</B>

Rule 1915.11-2. Guardian Ad Litem.

 (a)  Appointment.

   (1)  On its own motion or a party’s motion, the court may appoint a guardian ad litem if the court finds that the appointment is necessary for determining the child’s best interest.

   (2)  As set forth in Pa.R.Civ.P. 1915.21, the court’s order appointing the guardian ad litem may apportion to the parties the reasonable cost of the guardian ad litem.

 (b)  Qualifications. The guardian ad litem shall be a licensed attorney or licensed mental health professional.

 (c)  Duties.

   (1)  As provided in 23 Pa.C.S. §  5334, which has been suspended in part by Pa.R.Civ.P. 1915.25, the guardian ad litem shall perform the duties as enumerated in Section 5334, including representing the child’s best interest.

   (2)  The guardian ad litem shall not represent the child’s legal interest or act as the child’s legal counsel.

 (d)  Report. The guardian ad litem shall prepare a written report, which shall include specific recommendations relating to the child’s best interest.

   (1)  Child’s Statement.

     (i)   The written report may include a subject child’s statement to the guardian ad litem that would be otherwise inadmissible as hearsay under the Pennsylvania Rules of Evidence, provided the requirements of Pa.R.E. 703 are satisfied.

     (ii)   A child’s statement included in the written report under subdivision (d)(1)(i) shall not be considered substantive evidence.

   (2)  The guardian ad litem shall file the written report with the prothonotary, which shall become part of the record.

   (3)  Confidential. The guardian ad litem’s filed report and a party’s filed response to the report as provided in subdivision (d)(5) shall be confidential and shall not constitute a public record.

   (4)  The guardian ad litem shall provide the report to the parties and the court when filed but not later than 20 days prior to a hearing or trial or as otherwise ordered by the court.

   (5)  Comments. Objections.

     (i)   Within ten days of receiving the guardian ad litem’s report, a party may file with the prothonotary and serve on the other party and the court:

       (A)   a comment to the report, which shall become part of the record; or

       (B)   an objection to the report’s admissibility, in whole or in part, including a subject child’s statement to the guardian ad litem.

     (ii)   The court shall determine the report’s admissibility prior to the hearing or trial.

   (6)  Subject to Pa.R.Civ.P. 1915.11, a party may subpoena:

     (i)   an individual interviewed by the guardian ad litem or identified in the report to appear and testify at the hearing or trial; or

     (ii)   the guardian ad litem for the production of a document relied upon by the guardian ad litem in preparing the report.

 (e)  Testimony.

   (1)  When determined necessary by the trial court, the guardian ad litem shall participate in court proceedings by attending, and by providing sworn testimony if called to testify by a party or the court. The guardian ad litem shall not be permitted to provide argument, unsworn opinions, or unsworn testimony to the court.

   (2)  If called to testify by a party, the guardian ad litem shall be subject to cross-examination by opposing parties. If called to testify by the court, the guardian ad litem shall be subject to cross-examination by any party.

   (3)  Child’s Statement.

     (i)   Except as precluded by the court in subdivision (d)(5)(ii), the guardian ad litem’s testimony may include the subject child’s statement to the guardian ad litem that would be otherwise inadmissible as hearsay under the Pennsylvania Rules of Evidence, provided the requirements of Pa.R.E. 703 are satisfied.

     (ii)   A child’s statement included in the guardian ad litem’s testimony under subdivision (e)(3)(i) shall not be considered substantive evidence.

 (f)  Order. The order appointing a guardian ad litem shall be substantially in the form set forth in Pa.R.Civ.P. 1915.21.

Comment:

   Subdivision (a)(1) states that the guardian ad litem may be appointed when ‘‘the appointment is necessary.’’ Such appointments should be limited to extraordinary cases in which the trial judge determines that the level of conflict is unusually high or that the parties will be absolutely unable to provide the court with the information necessary to evaluate and determine the subject child’s best interests. Regardless of appointment of a GAL, the duty and responsibility to determine the best interests of the children involved lies solely with the trial judge.

   The Supreme Court of Pennsylvania suspended 23 Pa.C.S. §  5334 insofar as it (1) requires that a guardian ad litem be an attorney, (2) permits the guardian ad litem to represent both the best interests and legal interests of the child, (3) provides the guardian ad litem the right to examine, cross-examine, present witnesses, and present evidence on behalf of the child, and (4) prohibits the guardian ad litem from testifying.

   See 23 Pa.C.S. §  5336, prohibiting disclosure of certain records and information to parents and parties.

   Subdivision (d)(1) and (e)(3) reference the requirements of Pa.R.E. 703. Rule 703 relates to the bases for expert opinion testimony. While the requirements of Rule 703 must be satisfied for any written report that includes statements made by a subject child, the guardian ad litem is not an expert witness and need not be qualified as an expert prior to testifying. However, the guardian ad litem

   In addition, the guardian ad litem cannot serve as a mere conduit for hearsay or for the opinions of another person, including the subject child. The guardian ad litem cannot relate the opinion of a non-testifying witness unless the guardian ad litem has reasonably relied upon it. Upon appropriate objection from any party, the trial court shall strike any testimony or portion of the guardian ad litem’s written report that is inadmissible as hearsay if the requirements for Pa.R.E. 703 are not met.

   Subdivision (d)(6) provides that a party may subpoena an individual interviewed by the guardian ad litem, an individual that is identified in the guardian ad litem’s report, or a document relied upon by the guardian ad litem in producing the report. The subdivision shall not be construed to limit a party’s ability to subpoena other individuals or for the production of documents for a trial or hearing, or for discovery purposes, if the court had previously authorized discovery pursuant to Pa.R.Civ.P. 1915.5(c). remains subject to questions and cross-examination regarding qualifications and experience.

Source

   The provisions of this Rule 1915.11-2 adopted August 1, 2013, effective September 3, 2013, 43 Pa.B. 4702; amended January 27, 2023, effective April 1, 2023, 53 Pa.B. 824. Immediately preceding text appears at serial pages (408808) and (377877).



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