Rule 1915.5. Question of Jurisdiction, Venue, or Standing. Counterclaim Discovery. No Responsive Pleading by Defendant Required.
(a) Question of Jurisdiction, Venue, or Standing.
(1) A party shall raise jurisdiction of the person or venue by preliminary objection.
(2) A party may raise standing by preliminary objection or at a custody hearing or trial.
(3) The court may raise standing sua sponte.
(4) In a third-party plaintiff custody action in which standing has not been resolved by preliminary objection, the court shall address the third-party plaintiff’s standing and include its standing decision in a written opinion or order.
Official Note
The court may raise at any time a question of (1) jurisdiction over the subject matter of the action or (2) the exercise of its jurisdiction pursuant to Section 5426 of the Uniform Child Custody Jurisdiction and Enforcement Act, relating to simultaneous proceedings in other courts, Section 5427, relating to inconvenient forum, and Section 5428, relating to jurisdiction declined by reason of conduct. The Uniform Child Custody Jurisdiction and Enforcement Act, 23 Pa.C.S. § 5407, provides that, upon request of a party, an action in which a question of the existence or exercise of jurisdiction is raised shall be given calendar priority and handled expeditiously.
(b) A party may file a counterclaim asserting the right of physical or legal custody within 20 days of service of the complaint upon that party or at the time of hearing, whichever first occurs. The claim shall be in the same form as a complaint as required by Pa.R.C.P. No. 1915.3.
(c) There shall be no discovery unless authorized by special order of court.
Official Note
The rule relating to discovery in domestic relations matters generally is Pa.R.C.P. No. 1930.5.
(d) Except as set forth in subdivisions (a) and (b), a responsive pleading shall not be required. If a party files a responsive pleading, it shall not delay a hearing or trial.
Explanatory Comment—1994 Under subdivision (a), the defendant may but is not required to plead to the complaint. All averments may be disputed by the defendant at the custody hearing. An attorney who wished to file another pleading may do so. However, the action is not to be delayed to permit its filing.
Comment—2020 Act of May 4, 2018, P.L. 112, No. 21, amended 23 Pa.C.S. § 5324 by adding a new class of third-party standing for individuals seeking custody of a child whose parents do not have care and control of the child. Subject to the limitations in 23 Pa.C.S. § 5324(5), the newly added standing provision requires that: (1) the individual has assumed or is willing to assume responsibility for the child; (2) the individual has a sustained, substantial, and sincere interest in the child’s welfare; and (3) the child’s parents do not have care and control of the child. A plaintiff proceeding under Section 5324(4) shall satisfy the requirements of that provision by clear and convincing evidence.
Typically, when a third party is seeking custody of a child, the child’s parents can raise the issue of the third party’s standing to pursue custody. However, Section 5324(4) permits a party to seek custody of a child only when the child’s parents do not have care and control of the child. If the parents’ lack of care and control also results in their non-participation in the custody litigation, the third party’s standing may go unchallenged. Subdivision (a) has been amended by including two new subdivisions to address this circumstance. Subdivision (a)(3) permits the court to raise standing sua sponte and, if third-party standing is not resolved by preliminary objection, the court shall address the standing issue in its written opinion or order as required by subdivision (a)(4).
Source The provisions of this Rule 1915.5 amended March 30, 1994, effective July 1, 1994, 24 Pa.B. 1943; amended May 5, 1997, effective July 1, 1997, 27 Pa.B. 2532; amended November 19, 2008, effective immediately, 38 Pa.B. 6596; amended August 1, 2013, effective September 3, 2013, 43 Pa.B. 4702; amended July 7, 2014, effective in 30 days on August 6, 2014, 44 Pa.B. 4477; amended July 27, 2020, effective October 1, 2020, 50 Pa.B. 4019. Immediately preceding text appears at serial page (392632).
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