How to Prepare Evidence for a Pennsylvania Custody Case

No discovery without an order

In a custody case there is no discovery unless the court authorizes it by special order (Pa.R.Civ.P. 1915.5(c)). The general domestic relations rule says the same for custody, simple support, and protection from abuse proceedings (Rule 1930.5(a)). If you need records the other parent has, you have to ask the court for an order.

What you must exchange before trial

A party can ask for a pre-trial conference with a judge by praecipe, and the court can schedule one on its own; it must be at least 30 days before trial (Rule 1915.4-4(a)). When one is scheduled:

• Not later than five days before the pre-trial conference, each party files a pre-trial statement with the prothonotary and serves it on the court and the other party (Rule 1915.4-4(b)(1)).
• The statement lists each expert and each witness you intend to call, with their address and relationship to you, and a proposed order with the custody schedule you want. Listing a witness affirms that you talked with that witness about the substance of their testimony (Rule 1915.4-4(b)(2)).
• Your proposed exhibits, including any expert report, go to the other party with the statement, but not to the court (Rule 1915.4-4(c)).
• Unless the court orders otherwise, a pre-trial statement can be amended up to seven days before trial (Rule 1915.4-4(e)). A party who does not comply can be sanctioned (Rule 1915.4-4(d)).

Reports from evaluators and the guardian ad litem

• Expert evaluations. The court can order a party or child to take part in an evaluation by an expert (Rule 1915.8(a)). A report prepared at a party’s request that the party intends to use at trial must be delivered to the court and the other party at least 30 days before trial. No report is filed of record or considered evidence unless and until the court admits it, and an evaluator whose report goes to the court is subject to cross-examination (Rule 1915.8(b)).
• Guardian ad litem reports. A guardian ad litem files a written report with recommendations and gives it to the parties and the court not later than 20 days before a hearing or trial, unless the court orders otherwise. Within ten days of receiving it, a party may file a comment or an objection to its admissibility (Rule 1915.11-2(d)).
• Parenting plans. If the court requires parenting plans, a plan and the position in it are not admissible as evidence by another party (23 Pa.C.S. § 5331(a)).

Authenticating texts, emails, and photos

Before an exhibit is considered, you must produce evidence sufficient to support a finding that it is what you say it is, unless the other side stipulates (Pa.R.E. 901(a)). For digital evidence, Rule 901(b)(11) lists ways to connect it to a person, such as:

• testimony of a person with personal knowledge; or
• circumstantial evidence, such as identifying content, or proof of ownership, possession, control, or access to a device or account at the relevant time, when corroborated by circumstances indicating authorship.

Screenshots that show the sender’s name and number, the date and time, and enough of the conversation to give context make that testimony easier. Keep the original messages on the device; the rules generally require an original to prove a writing’s content, but a duplicate is admissible unless there is a genuine question about the original’s authenticity or admitting it would be unfair (Pa.R.E. 1002 and 1003).

Hearsay basics

Hearsay is a statement made outside the current hearing that a party offers to prove the truth of what it asserts (Pa.R.E. 801(c)). It is not admissible except as the rules or a statute provide (Pa.R.E. 802). Two exceptions come up often in custody cases:

• An opposing party’s statement. The other parent’s own statements, offered against them, are not excluded by the hearsay rule (Pa.R.E. 803(25)). This often covers their texts and emails to you.
• Records of a regularly conducted activity, such as school or medical records, when the foundation is shown by a custodian or another qualified witness or by a proper certification (Pa.R.E. 803(6)).

Recordings

Organizing your exhibits

1. Group exhibits by issue, ideally the § 5328 factor each one supports.
2. Number every exhibit and make copies for the court, the other party, and yourself, following any local rule on exhibit format.
3. Keep a one-page list: exhibit number, what it is, its date, and what it shows.
4. Plan who will testify to authenticate each item. Usually that is you.

If a witness cannot attend, the court may allow testimony by telephone, audiovisual, or other electronic means at a designated location, with its approval on good cause shown (Pa.R.Civ.P. 1930.3).

Primary sources

Rules and forms change. Check the current version at the source before you file.

• Pa.R.Civ.P. 1915.5, no discovery without order
• Pa.R.Civ.P. 1930.5, discovery in domestic relations matters
• Pa.R.Civ.P. 1915.4-4, pre-trial procedures
• Pa.R.Civ.P. 1915.8, physical and mental examinations
• Pa.R.Civ.P. 1915.11-2, guardian ad litem
• Pa.R.Civ.P. 1930.3, testimony by electronic means
• 23 Pa.C.S. § 5331, parenting plan
• Pa.R.E. 801 and 802, hearsay
• Pa.R.E. 803(6), records of a regularly conducted activity
• Pa.R.E. 803(25), an opposing party’s statement
• Pa.R.E. 901, authenticating evidence
• Pa.R.E. 1002 and 1003, originals and duplicates
• 18 Pa.C.S. §§ 5703 and 5704, interception and exceptions