IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA

FAMILY DIVISION

Washington Redskins, FD 6X SUPERBOWL CHAMPYINZ

Plaintiff,

v. Pittsburgh Steelers,

Defendant.

Counsel of Record for this Party: Donna Allen-Rosemond Beth Boroumand Joseph Chester Craig O’Connor Anthony Paolo Elizabeth Parker Margaret Prescott Samantha Robb

Viewer Discretion Advised: Interim Custody Orders in light of E.B. v. D.B., 209 A.3d 451

(Pa. Super. 2019)

Viewer Discretion Advised: Interim Custody Orders in light of E.B. v. D.B., 209 A.3d 451 (Pa. Super. 2019)

TABLE OF CONTENTS Pg. 3 E.B. v. D.B., 2019 A.3d 451 (Pa. Super. 2019)

Pg. 20 C.H.L. v. W.D.L., 214 A.3d 1272 (Pa. Super. 2019)

Pg. 32 Plowman v. Plowman, 591 A.2d 701 (Pa. Super. 1991)

Pg. 40 S.W.D. v. S.A.R., 96 A.3d 396 (Pa. Super. 2014)

Pg. 50 S.T. v. R.W., 192 A.3d 1155 (Pa. Super. 2018)

Pg. 65 J.M. v. K.W., 164 A.3d 1260 (Pa. Super. 2017)

Pg. 74 23 Pa. C.S. § 5323

Pg. 77 23 Pa. C.S. § 5328

Pg. 80 Pa. R.C.P. No. 1915.13

Pg. 81 23 Pa. C.S. § 6108

Pg. 88 23 Pa. C.S. § 5424

E.B. v. D.B., 209 A.3d 451 (2019)2019 PA Super 146

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209 A.3d 451Superior Court of Pennsylvania.

E.B., Appelleev.

D.B., Appellant

No. 1080 WDA 2018|

Argued December 5, 2018|

Filed May 6, 2019

SynopsisBackground: Mother of child filed a petition seeking primarycustody of child. Father filed a counter-petition seeking toenforce a shared custody provision in a marriage settlementagreement and to prevent mother from relocating with child,as well as a counterclaim for primary custody. The Courtof Common Pleas, Allegheny County, Family Court, No.FD 04-008554-009, Daniel D. Regan, J., entered an orderdecreasing the number of days father exercised physicalcustody of child. Father appealed the final order and aninterim order denying motions for special relief.

Holdings: The Superior Court, No. 1080 WDA 2018,Strassburger, J., held that:

[1] Superior Court would consider merits of challenge tointerim order modifying custody schedule;

[2] trial court's entering a temporary, interim order modifyingcustody without a hearing or notice to father was abuse ofdiscretion;

[3] Superior Court could not vacate trial court's interim order;

[4] court was entitled to give significant weight to child'spreference in modifying custody;

[5] trial court did not make proper findings in denying father'smotion to hold mother in contempt;

[6] trial court improperly used a generic form order; and

[7] father was entitled to a reopening of the record.

Affirmed in part, vacated in part, and remanded.

Procedural Posture(s): On Appeal; Motion to ModifyCustody; Other; Motion for Contempt.

West Headnotes (17)

[1] Appeal and ErrorWant of Actual Controversy

The Superior Court will decide questions thatotherwise have been rendered moot when one ormore of the following exceptions to the mootnessdoctrine apply: (1) the case involves a questionof great public importance, (2) the questionpresented is capable of repetition and apt to eludeappellate review, or (3) a party to the controversywill suffer some detriment due to the decision ofthe trial court.

1 Cases that cite this headnote

[2] Child CustodyMootness of issues

Modification of custody schedule by trial courtthrough an interim order, which was an issuerendered moot by a final order in child custodydispute between mother and father, was an issuecapable of repetition and apt to elude appellatereview, and thus Superior Court would considermerits of father's challenge to interim order onappeal; case history suggested that mother andfather were likely to continually litigate aspectsof their custody arrangement, and the trial courtmight again try to resolve their issues withoutconducting a full trial.

1 Cases that cite this headnote

[3] Child CustodyOperation and Effect

Child CustodyWelfare and best interest of child

All custody awards are temporary insofar asthey are subject to modification by an ensuingcourt order any time that it promotes the child's

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best interest; thus, by force of circumstances, noaward of child custody is permanent regardlessof whether the order is styled as interim or final.

[4] Constitutional LawNotice and Hearing

The fundamental requirement of due process isthe opportunity to be heard at a meaningful timeand in a meaningful manner. U.S. Const. Amend.14.

[5] Constitutional LawWitnesses;  confrontation and cross-

examination

In almost every setting where importantdecisions turn on questions of fact, due processrequires an opportunity to confront and cross-examine witnesses. U.S. Const. Amend. 14.

[6] Child CustodyProcess

Child CustodyHearing and Determination

Trial court's entering a temporary, interim ordermodifying custody without a hearing or notice tofather was abuse of discretion in child custodydispute between mother and father; althoughtrial could had the authority to enter an interimorder, trial court was not presented with anemergency or apparent need to modify custodyto serve child's best interests, mother and fatherhad a long-standing custody arrangement thathad been litigated repeatedly, and there was noneed to alter the status quo of parties' custodyarrangement without notice and an opportunity

to be heard after full preparation. ; 23 Pa.Cons. Stat. Ann. § 5323(b); Pa. R. Civ. P.1915.13.

1 Cases that cite this headnote

[7] Child CustodyDetermination and disposition of cause

Superior Court could not provide remedysought by father and vacate trial court's interimorder modifying custody, which was improperlyentered without a hearing in custody disputebetween mother and father; Superior Court couldnot eliminate previous proceedings as thoughthey had not occurred and was limited to the sole

concern of the best interests of the child. 23Pa. Cons. Stat. Ann. § 5328(a).

[8] Child CustodyChild's preference

Trial court was entitled to give significantweight to child's preference in modifying childcustody arrangement to decrease the numberof days father exercised physical custody ofchild; although father expressed concerns aboutmother's conduct and rearing of child, the childwas 16 years old and child was already spendinga significant amount of time in mother's custody

prior to court's order. 23 Pa. Cons. Stat. Ann.§ 5328(a).

1 Cases that cite this headnote

[9] Child CustodyGrounds and Factors in General

The Child Custody Act requires trial courts toconsider all statutory factors to the extent that the

factors are relevant. 23 Pa. Cons. Stat. Ann.§ 5328(a).

[10] Child CustodyWelfare and best interest of child

It is within the trial court's purview as the finderof fact to determine which best interest factorsare most salient and critical in each particular

child custody case. 23 Pa. Cons. Stat. Ann. §5328(a).

[11] Child CustodyChild's preference of custodian

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For purposes of a child custody determination,the weight to be accorded a child's preferencevaries with the age, maturity, and intelligence ofthat child, together with the reasons given forthe preference; moreover, as children grow older,more weight must be given to the preference of

the child. 23 Pa. Cons. Stat. Ann. § 5328(a)(7).

1 Cases that cite this headnote

[12] Child CustodyChild's preference of custodian

In a child custody matter, where the householdsof both parents were equally suitable, a child'spreference to live with one parent could not buttip the evidentiary scale in favor of that parent.

23 Pa. Cons. Stat. Ann. § 5328(a)(7).

[13] Child CustodyReview

In a child custody matter, it is not the SuperiorCourt's function to determine whether the trialcourt reached the “right” decision; rather, theSuperior Court must consider whether, basedon the evidence presented, given due deferenceto the trial court's weight and credibilitydeterminations, the trial court erred or abused itsdiscretion in awarding custody to the prevailingparty.

[14] Child CustodyHearing

Trial court did not make proper findings indenying father's motion to hold mother incontempt in custody dispute for mother's allegednoncompliance with existing court orders; courtwas required to include a finding as towhether or not the evidence presented byfather demonstrated contempt by mother, andif court did find contempt, court was requiredto determine an appropriate sanction or devisea custody arrangement that was in child'sbest interest but also specifically minimizedcontemptuous behavior in the future.

[15] ContemptReview

Appellate review of contempt orders is limitedto determining whether the trial court abused itsdiscretion.

[16] Child CustodyDecision and findings by court

Trial court improperly used a generic form orderthat was not specific to the needs of the partiesand child in custody dispute, in which trial courtentered an order decreasing the number of daysfather exercised physical custody of child; courtfailed to offer any explanation for the summaryrevocation of prior orders and simply justifiedits use of its power to modify temporary custodyarrangements. Pa. R. Civ. P. 1915.13.

[17] Child CustodyOperation and Effect

Father was entitled to a reopening of the recordin child custody dispute to consider father's after-trial discovery claim that mother may have beenemployed out-of-state; father's motion broughtafter-discovered evidence to court's attentionwhile the matter was still pending, and recordsuggested that court ignored father's motion untilafter it issued its final order, and then deniedit summarily, and thus court's order was notan interlocutory order addressing an entirelyseparate matter, as trial court declared.

*454 Appeal from the Order Entered June 25, 2018 in theCourt of Common Pleas of Allegheny County, Family Courtat No(s): FD 04-008554-009, Daniel D. Regan, J.

Attorneys and Law Firms

Robin L. Frank, Pittsburgh, for appellant.

Robert J. Colaizzi, Pittsburgh, for appellee.

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BEFORE: SHOGAN, J., KUNSELMAN, J. and

STRASSBURGER, J. *

Opinion

OPINION BY STRASSBURGER, J.:

D.B. (Father) appeals from the order entered June 25, 2018,in the Court of Common Pleas of Allegheny County, whichdecreased the number of days Father exercised physicalcustody of his daughter, K.B. (Child), who was born inOctober 2002 to Father and E.B. (Mother). Father alsochallenges the trial court's August 31, 2017 interim order andthe court's denial of his motions for special relief in March1, 2018 and July 2, 2018 orders. Upon review, we affirmthe August 31, 2017 order; vacate the March 1, 2018 ordersummarily refusing to reinstate all prior orders; vacate theJune 25, 2018 order in part and affirm in part; vacate the July2, 2018 order; and remand for proceedings consistent withthis opinion.

We summarize the relevant facts and extended proceduralhistory of this case as follows. Mother and Father marriedin April 2000, and divorced in March 2005. Child wasborn during the marriage, and Father and Mother have beenengaged in continual litigation regarding custody of Childsince their separation when she was two years old.

Initially, the parties shared custody pursuant to their 2004marriage settlement agreement. In May 2005, Mother fileda petition seeking primary custody of Child. In response,Father filed a counter-petition seeking to enforce the sharedcustody provision in the marriage settlement agreement andto prevent Mother from relocating to Virginia with Child. Healso presented a counterclaim for primary custody.

Via a May 23, 2005 order, the trial court prohibited Motherfrom relocating with Child or exercising custody of Child inVirginia without mutual agreement of the parties or leave ofcourt. While the cross-custody petitions were still pending,Father filed a motion for contempt, averring that Mother tookChild to Virginia in violation of the May 23, 2005 order.Following a hearing in August 2005, the trial court foundMother to be in contempt and ordered *455 her to refrainfrom taking Child outside Allegheny County for more thanthree overnights during Mother's two-week custody periods

without Father's prior written agreement. 1

After multiple delays, the cross-petitions for custody wereeventually resolved by a July 3, 2007 consent order. Pursuantto the terms of that consent order, Mother and Father sharedlegal and physical custody of Child, with each exercisingphysical custody on a two-week basis. In addition, each parentwas permitted one overnight per week during his or her non-custodial period upon request and 24 hours' notice. Further,the custodial parent was required to provide the non-custodialparent with the right of first refusal when the custodial parentwas unavailable to care for Child.

In April 2008, Father filed a petition to reinstate his complaintfor primary legal and physical custody and for special reliefseeking entry of an interim order, citing concerns about

Child's encopresis. 2 On July 24, 2008, the trial court enteredan interim order directing the parents' participation in co-parenting counseling and Child's enrollment in kindergartenin Plum School District where both parties resided. Father'spetition was resolved by an October 21, 2008 consent order,in which the parties agreed, inter alia, that Father wouldexercise physical custody for approximately two-thirds ofthe time during the school year, and the parties would sharecustody during the summer. This arrangement resulted inFather having custody of Child for 19 days each month duringthe school year and Mother having custody of Child for theremaining days.

In 2012, disputes arose over legal custody, prompting Fatherto file a petition to modify the October 21, 2008 orderin an attempt to obtain primary legal custody. FollowingFather's petition, the trial court entered a series of ordersaddressing disputes over Child's schooling and medical careand continued Father's petition generally.

In 2014, Father filed a motion for special relief requestingpermission to change Child's school district in anticipationof purchasing a new house. Mother responded by filing apetition to modify custody, seeking 50/50 physical custodyand an order for Child to remain in the Plum School District.Following a hearing regarding school choice, the trial courtordered the parties to continue sharing legal custody, butgranted Mother the authority to choose Child's school. Fatherappealed, and this Court affirmed the trial court's orderin 2015. D.B. v. E.B., 118 A.3d 450 (Pa. Super. 2015)(unpublished memorandum).

Meanwhile, while the school-choice appeal was beingresolved by this Court, Father filed a counter-petition tomodify physical custody, and requested that the court increase

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his custodial days because Mother allegedly left Child withother caregivers frequently during her custody period anddid not participate in Child's extracurricular activities. Fatheralso filed a petition for contempt regarding a range of issues.These matters were resolved by an *456 October 16, 2014consent order which, inter alia, specified that: Mother mustrespond to communications from Father regarding custodyissues within 48 hours; the parties may not discuss custodymatters with Child or use Child as a messenger; Mother mustrefrain from using Child's cell phone for her own personaltexts; Mother must promptly notify Father of changes inChild's before- or after-school care; and Mother must ensurethat Child is prepared for school and extracurricular activitieson her custodial days.

In December 2014, Father filed another petition for contempt,resulting in a December 14, 2014 interim order enjoiningMother from changing Child's school, busing, or child carearrangements. Following a hearing, Mother was found incontempt, and the trial court ordered prior orders from July2, 2007, October 21, 2008, June 3, 2014, and October16, 2014, to remain in full force and effect. It alsorequired the parties to continue to engage in co-parentingsessions (followed by a joint memorandum of understandingas to what was agreed upon). It permitted Mother topurge her contempt by refraining from using Child asa messenger regarding custody-related matters; discussingcustody matters with Child; adhering strictly to the rightof first-refusal; following the recommendations of Child'smedical providers; timely responding to communicationsregarding Child; refraining from using Child's cell phone forpersonal purposes; promptly advising Father of changes totransportation arrangements for Child; ensuring Child wasprepared for school and extracurricular activities; exchangingChild's musical instrument during custodial exchanges; andgiving Father prior notice before withdrawing Child fromafter-school activities early.

On March 17, 2015, Mother and Father entered into anotherconsent order, whereby they agreed, inter alia, that allprior orders remained in effect except any provisions thatconflicted with the current order; Mother would coordinateChild's practice of her harp at Father's home during hercustodial periods; the parties would refrain from using Child'scell phone; and the parties would adhere to a particulartransportation schedule for Child's school, after-school care,and extracurricular activities.

On November 16, 2016, the trial court entered an orderfinding Mother in contempt of the July 2, 2007, October21, 2008, June 3, 2014, and October 16, 2014 court

orders. 3 It permitted Mother to purge the contempt byidentifying co-habitants and caregivers; communicating withFather regarding Child's transportation arrangements; ceasingall communication with Child regarding custody issues;

acknowledging that Father's wife 4 constituted family withinthe scope of the right of first-refusal provision; and ceasingto disseminate information regarding Father and his wife tothird parties via social media.

On March 2, 2017, Father filed another motion for contempt,averring that Mother refused to provide the telephone numberof Child's caregivers, including an individual who providedcare for a weekend in Harrisburg; refused to bring Childover to Father's house to practice her harp; obtained a jobinterview for Child without Father's knowledge or consent;and regularly was not at home when Father *457 dropped

Child off at Mother's house. 5 Following a conciliation on

April 13, 2017, the trial court 6 ordered Mother “to continueto comply with custody order,” but did not specify which one,and stated that Father “preserv[ed his] request for counselfees.” Order, 4/13/2017, at 2.

On May 19, 2017, Mother filed the petition for modificationof custody that is the subject of this appeal. In the petition, sherequested shared physical custody on a 50/50 basis as opposedto Father having physical custody 2/3 of the time, averringsimply that she believed it to be in Child's best interest andcould easily be achieved because the parties resided closeto each other. Petition for Modification of Custody Order,5/19/2017, at ¶¶ 3-4. Father filed an answer, and the trial courtscheduled the case for a judicial conciliation.

The record does not reveal what transpired during the August31, 2017 judicial conciliation, but subsequently, the trial courtentered an interim order of court (Interim Order), whereinit ordered the parties to share legal and physical custody ofChild. Interim Order, 8/31/2017, at ¶¶ 1-2. Regarding thelatter, the trial court ordered the parties to agree to a schedule,and in the event the parties could not agree, the court imposed

a 2-2-3 day schedule. 7 Id. at ¶ 2. The order also set forthvarious provisions regarding both legal and physical custody,including a provision requiring each party to give the otherparent an opportunity to spend time with Child should thecustodial parent be unavailable for more than eight hours. Id.at ¶ 16. The order superseded all prior orders of court and

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granted the parties leave to engage in discovery. Id. at ¶¶ 17,20.

In February 2018, Father filed two motions for special relief.The first sought reinstatement of all prior custody orders.Father argued that the Interim Order had caused multipleconflicts because it eliminated all of the previous detailedorders and was a form order not specific to Child's needs.Specifically, he averred that prior to the Interim Order, Childhad been bused to Father's house after school to allow Fatherto transport Child to her activities even on nights Mother hadcustody. Since the Interim Order eliminated this arrangement,Mother had not transported Child to certain activities duringMother's custody periods. Father's Motion for Special Relief- A, 2/23/2018, at ¶¶ 16-21. He also averred that since theInterim Order no longer required Mother to coordinate harppractice for Child, Child had missed 36 days of practice.Id. at ¶¶ 22-24. Finally, he averred that because the InterimOrder no longer required Mother to respond to Father within48 hours, Mother's communication with Father regardingcustody matters had suffered greatly. Id. at ¶¶ 26-29.

*458 In the second motion, Father requested an ordergranting him additional custody time with Child when Motherwas unavailable during her custody time, on Child's upcomingdays off from school, and for the purpose of accompanyingChild on a college visit. Specifically, Father averred that helearned that Mother had obtained employment in Harrisburg,resulting in Mother's leaving Child home alone often. Father'sMotion for Special Relief - B, 2/23/2018, at ¶ 14. Healso alleged that Mother willfully failed to disclose heremployment at the time of the August 31, 2017 judicialconciliation. Id. at 16-17.

On March 1, 2018, the trial court denied both motions withoutfurther explanation, except it permitted Father to take Childon the college visit. Orders of Court, 3/1/2018.

On April 24, 2018, Father filed a petition for contempt,averring that Mother failed to follow the Interim Order byengaging in the following behaviors: (1) failing to ensurethat Father was afforded an adequate opportunity to speakwith Child by telephone during his non-custodial period; (2)encouraging Child to provide reports about Father and/or hishousehold to Mother; (3) alienating Child's affections fromFather; (4) discussing adult issues with Child; (5) failing tooffer Father a right of first refusal; (6) failing to providecontact information and other relevant information aboutChild's caregivers; and (7) failing to provide full responses to

Father's discovery requests. Petition for Contempt, 4/24/2018,at ¶ 7. Father also requested an award of counsel fees.The trial court granted Father's request to consolidate thecontempt petition with the custody trial on Mother's pendingmodification of custody petition. Order of Court, 4/24/2018,at 1.

A custody trial was conducted on April 27, 2018. At thehearing, the parties testified on their own behalves, the trialcourt interviewed Child in camera, and Father offered 26exhibits into evidence.

While the trial court's decision was still pending, Father filed

a motion for special relief. 8 In the motion, he informedthe court that he recently had learned that the trustee inMother's pending Chapter 13 bankruptcy case was pursuinga wage attachment against Mother's wages from Universityof Maryland Capital Region Health, which suggested thatMother was employed in Maryland. Father's Motion forSpecial Relief, 7/2/2018, at ¶¶ 7-9. Father then detailedevidence regarding Mother's past history of untruthfulnessabout her employment schedule and availability to spendtime with Child. Id. at ¶¶ 10-15. He requested that thecourt (1) suspend the Interim Order; (2) require Mother toproduce information regarding her employment in Maryland;(3) require Mother to meet her burden of demonstrating thatshared custody was in Child's best interest and that Motherwas actually available to parent Child during her custodial

period; and (4) award Father counsel fees pursuant to 23Pa.C.S. § 5339. See generally id.

On June 19, 2018, Father filed a motion for special relief,requesting that the trial court order Mother, inter alia, tosign and return travel documentation needed for Child totravel to Canada with Father and *459 permit Child tostay at her step-grandparents' home during Mother's custodytime to facilitate her attendance at harp camp and avoidlengthy transport periods by Father. He also requested thatthe court award reasonable counsel fees. Father argued thatMother has a history of ignoring his requests to facilitatetravel arrangements for Child, resulting in the October 16,2014 order requiring Mother to execute timely documentationenabling Child to travel. Father requested that the courtreinstate this provision, which had been eliminated by theInterim Order's supersession of all prior orders. He alsoalleged that Mother ignored his requests and boasted inan email that she was going to force him to seek judicialintervention, and due to this obdurate and vexatious conduct,

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the court should award counsel fees pursuant to 23 Pa.C.S.§ 5339. Motion for Special Relief, 6/18/2018, at ¶¶ 6-34.

On June 19, 2018, the trial court entered an order requiringMother to sign the consent authorizing Child's travel toCanada, but denied Father's request for Child to stay with herstep-grandparents during all five days of harp camp. Order,6/19/2018, at 1. Instead, the trial court permitted Child tostay with her step-grandparents on Father's custodial days andrequired Mother to provide timely transportation to and fromcamp for Child on Mother's custodial days. Id. The trial courtdeferred the issue of Father's request for counsel fees until itdecided the modification-of-custody matter. Id.

On June 25, 2018, the trial court issued an order ruling uponMother's petition for modification of custody and Father'spetition for contempt (Final Order). In the Final Order, thetrial court analyzed the sixteen custody factors set forth at

23 Pa.C.S. § 5328(a), and concluded that it was in Child'sbest interest for Mother and Father to share custody equally.Final Order, 6/25/2018, at 7-10. It ordered Mother and Fatherto share legal custody and set forth provisions detailing therequirements of such shared legal custody. Id. at 11-13.

Regarding physical custody, the trial court specified thatFather had custody on Mondays and Wednesdays, and everyother Friday, Saturday, and Sunday, and Mother had custody

on every Wednesday 9 and Thursday, and every other Friday,Saturday, and Sunday. Id. at 13. Each parent was requiredto provide contact information for caregivers used during theparent's respective custody periods. Id. at 13. Each parentneeded to ensure that Child attended all activities, events, andappointments during the parent's custodial time. Id. at 17.Transportation was addressed broadly, requiring “the partiesor [ ] another responsible individual selected by the respectiveparties” to transport Child during custody exchanges. Id. at17. Additionally, each party was prohibited from using Childas an intermediary or encouraging Child to provide reportsabout the other party. Id. at 19. Each non-custodial parentwas provided with a right of first refusal in the event that thecustodial parent was unavailable for five or more hours. Id. Italso prohibited the parties from relocating with Child withoutadhering to 23 Pa.C.S. § 5337. Id. at 20.

Further, the court specified that the order “supersed[ed] allprior custody orders entered in this matter.” Id. at 20. Finally,the trial court did not discuss any of the motions or petitions

in detail; instead, it stated “[a]ll other pending [m]otions and/or [p]etitions in relation to custody are denied.” Id. at 20.

*460 Subsequently, the trial court entered an order denyingFather's motion for special relief regarding Mother's allegedMaryland employment without explanation except to “see

[the Final Order].” Order, 7/2/2018, 10 at 2.

Father timely filed a notice of appeal on July 23, 2018. Father

and the trial court complied with Pa.R.A.P. 1925. 11 Fatherraises ten issues for our review. See Father's Brief at 27-29.

We consider Father's claims mindful of our well-settledstandard of review.

In reviewing a custody order, ourscope is of the broadest type andour standard is abuse of discretion.We must accept findings of thetrial court that are supported bycompetent evidence of record, asour role does not include makingindependent factual determinations. Inaddition, with regard to issues ofcredibility and weight of the evidence,we must defer to the presiding trialjudge who viewed and assessed thewitnesses first-hand. However, weare not bound by the trial court'sdeductions or inferences from itsfactual findings. Ultimately, the test iswhether the trial court's conclusionsare unreasonable as shown by theevidence of record. We may reject theconclusions of the trial court only ifthey involve an error of law, or areunreasonable in light of the sustainablefindings of the trial court.

V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012)

(citations omitted); see also M.A.T. v. G.S.T., 989 A.2d 11,18 (Pa. Super. 2010) (en banc) (noting that to constitute anabuse of discretion, a court's judgment must be “manifestlyunreasonable” as shown by evidence of record).

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Upon petition, a trial court may modify a custody order ifit serves the best interests of the child. 23 Pa.C.S. § 5338.Subsection 5328(a) of the Child Custody Act sets forth 16factors that a court must consider before making any custodydetermination, including a modification of a custody order.

E.D. v. M.P., 33 A.3d 73, 79-80 (Pa. Super. 2011) (citing

23 Pa.C.S. § 5328(a)).

Issues 1-3: Modification of Custody in Interim OrderThe first three issues Father raises relate to the trial court'smodification of the parties' custody schedule in the InterimOrder following the judicial conciliation, *461 wherein thetrial court changed Father's physical custody from primaryto shared. Father asks us to decide whether the trial courtabused its discretion or erred in modifying custody in theInterim Order because (1) modifying the long-standing andoft-litigated custody arrangement without a hearing deprivedFather of due process; (2) modifying custody was not in thebest interests of Child; and (3) the trial court did not delineateits reasons for the modification in open court, in the InterimOrder, or in a written opinion. See Father's Brief at 37-52.

Before we address the merits of Father's first three issues, wefirst consider whether the Interim Order was mooted by theentry of the Final Order entered following trial. This Courthas held that “we may sua sponte raise the issue of mootness,as we generally ‘cannot decide moot or abstract questions, norcan we enter a judgment or decree to which effect cannot be

given.’ ” In re L.Z., 91 A.3d 208, 212 (Pa. Super. 2014)

(en banc), rev'd on other grounds, 631 Pa. 343, 111 A.3d1164 (2015).

[1] There is no question that the trial court intended theInterim Order to apply on an interim basis until the partiesconducted discovery and litigated Mother's modificationpetition at trial. See Interim Order, 8/31/2017, at 2, 11. TheFinal Order order then expressly superseded all prior orders,including the Interim Order. Final Order, 6/25/2018, at 20.Since the Interim Order is no longer in effect, it seems thatthe issues Father presents regarding the Interim Order are

moot. See K.W. v. S.L., 157 A.3d 498, 499 n.1 (Pa. Super.2017) (holding parent's challenge to interim order replacedby another interim order was moot); Ramer v. Ramer, 914A.2d 894, 899 (Pa. Super. 2006) (holding parent's challengeto failure to hold a hearing before entering interim order was

moot because trial court conducted a hearing before enteringa final order). Despite our general rule regarding mootness,

this Court will decide questions thatotherwise have been rendered mootwhen one or more of the followingexceptions to the mootness doctrineapply: 1) the case involves a questionof great public importance, 2) thequestion presented is capable ofrepetition and apt to elude appellatereview, or 3) a party to the controversywill suffer some detriment due to thedecision of the trial court.

In re D.A., 801 A.2d 614, 616 (Pa. Super. 2002).

In Plowman v. Plowman, 409 Pa.Super. 143, 597 A.2d701 (1991), we reviewed the merits of an interlocutory orderpermitting a mother to relocate with her child despite theexistence of a later order entered after a full custody hearing.We reasoned that the order was reviewable because otherwisethe relocation order would be likely to evade review due to

its interlocutory nature. 12 Id. at 704-05. Since the orderaffected a substantial right of the non-custodial parent's accessto the child and impacted the status quo that would later setthe stage for the full custody trial, we concluded that we oughtto review the *462 proper procedures for entry of such an

interim order. Id.

[2] [3] As in Plowman, we are satisfied thatthe questions presented concerning the Interim Orderare “capable of repetition and apt to elude appellate

review.” Id. A custody proceeding, particularly a highlycontentious one, continually produces issues that the trialcourt must decide on an interlocutory basis. The history ofthis case suggests that these parties are likely to litigatecontinually aspects of their custody arrangement, and thetrial court might again try to resolve their issues withoutconducting a full trial. Although the trial court entered theInterim Order on an interim basis, that interim basis lasted foralmost ten months during discovery and pre-trial proceedings,and ultimately impacted the status quo the trial court had toconsider at the custody trial. See J.M. v. K.W., 164 A.3d 1260,

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1268-69 (Pa. Super. 2017) (noting that a temporary orderoften “forms the de facto status quo regardless of its purportedimpermanence”). Therefore, because of the importance ofensuring that trial courts follow correct procedures whenentering interlocutory custody orders that have significant

impact on the final 13 custody decision, we will proceed tothe merits.

In response to Mother's petition for modification, thetrial court entered an order scheduling the case for a

“judicial custody conciliation.” 14 Order, 5/19/2017, at 1(capitalization altered). Father argues that this schedulingorder did not put him on notice that the trial court wouldconsider modifying “Father's long-standing award of primaryphysical custody” at the conciliation, which typically is a pre-cursor to a custody hearing in Allegheny County. Father'sBrief at 39. He notes the conciliation merely constituteda discussion among the trial court and counsel in judicialchambers off the record without parties present or anopportunity to present evidence. Id. Thus, Father contends hewas *463 “blindsided” by the trial court's issuing sua spontethe Interim Order, which in effect granted the relief Motherwas seeking in her bare-bones petition for modificationwithout a full hearing on Father's challenge to same. Id. 39-45.Father argues that granting Mother's relief without a hearingviolated his right to due process because of the lack of noticeand the lack of an opportunity to be heard. Id. He furthercontends that the Interim Order “unjustly placed [F]ather inthe position of having to fight to restore the prior status quo atthe custody trial nearly [8] months later,” resulting in the trialcourt's “looking for reasons to justify the interim award thatit previously made in [Mother's] favor” and relieving Motherof her burden of proving that modification was in Child's bestinterest. Id. at 42.

In its Rule 1925(a) opinion, the trial court defended its InterimOrder by noting that it was entered after the parties had mademutual filings regarding modification and after the parties'counsel had an opportunity for argument during the judicialconciliation. Trial Court Opinion, 8/27/2018, at 6. The trialcourt justified the order by relying upon its power to modify

custody on a temporary basis. Id. (citing Choplosky v.Choplosky, 400 Pa.Super. 590, 584 A.2d 340 (1990) and

Steele v. Steele, 376 Pa.Super. 174, 545 A.2d 376 (1988)).Finally, without further elaboration, the court stated thatmodifying the order on an interim basis was in Child's bestinterest. Id.

The Child Custody Act grants trial courts authority to enterinto orders on an interim basis, providing that the court“may issue an interim award of custody to a party who hasstanding ... in the manner prescribed by the PennsylvaniaRules of Civil Procedure governing special relief in custody

matters.” 23 Pa.C.S. § 5323(b). In relevant part, the rulegoverning special relief provides that “[a]t any time aftercommencement of the action, the court may on applicationor its own motion grant appropriate interim or special relief.The relief may include, but is not limited to, the award oftemporary legal or physical custody[.]” Pa.R.C.P. 1915.13.The official comment explains that the rule is intended to bea “broad provision empowering the court to provide specialrelief where appropriate.” Id., Comment.

[4] [5] However, due process is required during custodyproceedings. We have previously described due process as“a concept incapable of exact definition. Rather, it is aflexible notion which calls for such procedural safeguards asa particular situation demands to ensure fundamental fairness

to a potentially aggrieved litigant.” Plowman, 597 A.2dat 705. “The fundamental requirement of due process isthe opportunity to be heard at a meaningful time and in a

meaningful manner.” Id. (citing Mathews v. Eldridge,424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)).This means that “[i]n almost every setting where importantdecisions turn on questions of fact, due process requires an

opportunity to confront and cross-examine witnesses.” Id.(citation omitted).

This Court has considered the interplay between the specialrelief power of the trial court and due process before. In

Steele, we considered whether a trial court could suasponte modify a parent's partial custody during a hearing ona petition for contempt. This Court stated that the appropriatemanner to modify custody is in response to a petitionfor modification, but the trial court may modify custodytemporarily “under appropriate circumstances ... when it is

in the best interest of the child to do so.” Steele, 545A.2d at 378. The basis for the trial court's authority is Rule1915.13, which this Court has characterized as “a means tobring about emergency relief that [was] traditionally available*464 under the writ of habeas corpus” in recognition that

“circumstances may change abruptly” in custody matters.

Id. Therefore, the Steele Court held that it waspermissible for the trial court to enter an order temporarily

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suspending the prior custody order and requiring the father'svisits to be supervised due to his “violent and irrational

tendencies” until he completed a parenting class. Id.

Choplosky also involved the entry of a modification orderfollowing a contempt hearing. After the trial court sua spontegranted sole legal custody to the mother, the father filedan appeal contending that the modification in absence of awritten petition deprived him of his right to due process oflaw. This Court agreed with the father, holding that the courterred by permanently modifying legal custody without notice

and an opportunity to be heard. Choplosky, 584 A.2d at342-43. This Court reasoned that

[n]either party was on notice thatthe custody order, upon whichthe contempt proceedings werepredicated, was itself to be at issueuntil the “contempt” proceedingswere well underway. The degreeto which the parties were allowedto freely argue facts regarding theappropriate custody of the children isinconsequential. However unabated orerudite the advocacy, absent adequatenotice or opportunity to prepare,neither we nor the trial court canassume that the parties have eithersufficiently exposed the relevant factsor properly argued their significance.Consequently neither we nor the trialcourt can make an informed, yetquintessentially crucial judgment as towhether it was in the best interests ofthe children involved to give sole legalcustody to their mother.

Id. at 343.

In dictum, this Court then stated that

[h]ad the trial court decided, andhad the circumstances required thatthe custody of the children be

only temporarily modified pursuantto Pa.R.C.P. 1915.13, our decisionmight have been different. Such“special relief” may in some cases beappropriate (and necessary) where thesituation is such that, for example,temporary modification of custody orvisitation rights would preserve thewell-being of the children involvedwhile the parties prepare to resolvemore permanently the question ofwhere and/or with whom the childrenshould remain.

Id. (emphasis in original).

More recently, this Court considered whether Rule 1915.13relief could be entered without a hearing. In M.J.S. v. B.B.,172 A.3d 651 (Pa. Super 2017), the parents had no formalcustody agreement. After the mother started using drugs,the father filed a petition to obtain primary custody ofthe child. After the trial court granted temporary physicalcustody to the father pending the hearing on his petition,the child's maternal grandmother filed an emergency petitionto intervene, averring that she should have primary custodybecause the child had lived with her his entire life. Without ahearing, the trial court rescinded the temporary order grantingthe father custody, granted the grandmother's petition tointervene, and awarded the grandmother emergency custodypending the hearings on the parties' dueling custody petitions.

On appeal from the final order awarding custody to maternalgrandmother, the father argued that the trial court erred byentering an interim order without a hearing. This Courtrejected his argument, stating that Rule 1915.13 “does notestablish any specific procedure for the trial court to imposetemporary special relief and, critically, it certainly does notrequire that the trial court schedule a hearing or *465 listento argument before special relief is awarded. Indeed, pursuantto Rule 1915.13, the court may grant relief sua sponte.” Id.at 655.

Thus, Steele, Choplosky (albeit in dictum), and M.J.S.all indicate that the trial court had the authority and discretionpursuant to Rule 1915.13 to enter an interim order of custodywithout a hearing while the parties prepared to litigate morefully the issue of modification. Notwithstanding the trial

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court's general authority to enter an order of interim relief,there are limits to a trial court's discretion. See J.M. v. K.W.,164 A.3d 1260, 1270 (Pa. Super. 2017) (“Under appropriatecircumstances, a trial court may modify a custody ordertemporarily pursuant to Rule 1915.13.”) (emphasis added).

In M.J.S., because the parties had no custody agreement,some sort of arrangement had to be put in place while theparties litigated the issue of custody on a more long-termbasis. Thus, it was reasonable and necessary for the trialcourt to institute a temporary arrangement as a stopgap during

litigation. See S.W.D. v. S.A.R., 96 A.3d 396, 405 (Pa.Super. 2014) (“A court is given [authority to award custody ona temporary basis] so that it may address emergency situationsand to protect a child until a final hearing can be held and apermanent custody order can be entered.”). This Court alsohas approved of temporary relief if it would “preserve thewell-being of the children involved while the parties prepareto resolve more permanently the question of where and/orwith whom the children should remain.” J.M., 164 A.3d at

1270 (quoting Choplosky, 584 A.2d at 343)); see also

Steele, 545 A.2d at 379 (holding temporary modificationof visitation was warranted after trial court received evidenceduring a contempt proceeding of the father's inappropriateconduct around his children, resulting in the fashioning of anorder designed to protect the children until the father tooksteps to change his behavior).

[6] In the instant case, however, there was no emergencyor apparent urgent need to preserve the well-being of Child.Mother's petition simply averred that custody on a 50/50 basiswas in Child's best interest and could easily be achievedbecause the parties resided close to each other. Petition forModification of Custody Order, 5/19/2017, at ¶¶ 3-4. Asdiscussed supra, a trial court may order temporary relief, butonly “under appropriate circumstances ... when it is in the best

interest of the child to do so.” Steele, 545 A.2d at 378;J.M., 164 A.3d at 1270. It may be that changing the parties'long-standing custody arrangement to an equally shared onein August 2017 was in Child's best interest. However, thetrial court offers no explanation as to why that was so, in

contravention to 23 Pa.C.S. § 5323(d) (“The court shalldelineate the reasons for its decision on the record in opencourt or in a written opinion or order.”).

Moreover, the parties' long-standing custody arrangementhad been litigated repeatedly, many times in relation to

Mother's contemptuous behavior, culminating in a series oforders that painstakingly spelled out the details of the parties'arrangement. In one swoop, without the benefit of a hearingwhere the parties would have had advance notice to prepareand an opportunity to “sufficiently expose[ ] the relevant facts

or properly argue[ ] their significance,” Choplosky, 584A.2d at 343, the trial court entered an order that was genericin nature and erased all of the prior orders that were tailoredto the parties' and Child's needs.

In some circumstances entering an order without notice ona temporary basis may be necessary to address a child's bestinterest. The typical case for awarding *466 temporary reliefwithout a hearing is where the parents have recently separatedand custody has never been litigated. That is a far cry fromthe instant case where the parties have been separated for 13years prior to the August 31, 2017 Interim Order, and custodyhad been litigated ad nauseam over that 13-year period. In thiscase, it was an abuse of the trial court's discretion to alter thestatus quo without notice and an opportunity to be heard afterfull preparation, without any apparent emergency or changein circumstances, without any explanation as to why it wasin Child's best interest, and without considering the effect ofeliminating years of detailed prior orders in exchange for anorder not specifically tailored to the parties' and Child's needs.

Furthermore, while only temporary, an interim order oftenhas a long-term impact going forward. In other contextsin litigation, status quo is used to refer to “the last actual,peaceable and lawful, non-contested status which preceded

the controversy.” See, e.g., Miceli v. UnemploymentComp. Bd. of Review, 519 Pa. 515, 549 A.2d 113, 116(1988). On the other hand, while our custody cases do notdefine status quo definitively, in practice because stability istypically in a child's best interest, once an interim change hasbeen made on temporary basis, courts are hesitant to changea child's routine yet again.

For example, in Plowman, without a hearing, a trial courteffectively permitted a mother to relocate to another statewith a child on an interim basis pending a full hearing on themother's petition for a custody modification. In determiningthat this was unreasonable, this Court stated that

[t]he lower court was obligated toentertain a full evidentiary hearing onthe issue of modification of custody

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before allowing even a de factomodification. The trial court herewaited over one year before havinga full evidentiary hearing on mother'scustody modification petition. Duringthis time period, father's ability todefend his position eroded because themore time [the child] was allowed tostay in Maryland, the more it could beargued that it was in his best intereststo remain in Maryland under thenew status quo. Given the compellinginterests of the non-custodial parentinvolved here, the court's delay inholding the evidentiary hearing wasunreasonable.

Plowman, 597 A.2d at 706-07; see also B.K.M. v.J.A.M., 50 A.3d 168, 175 (Pa. Super. 2012) (holding atrial court should have considered how “maintaining thestatus quo” may have been in children's best interests tocontinue their “stability and continuity” achieved in newcountry; although mother relocated with children prior to afull hearing, presumption against relocation expressed in 23Pa.C.S. § 5337 does not require that the court completelyignore the last two years); J.M., 164 A.3d at 1268 (describinghow the slowness of “the judicial machinery” often turns anostensibly temporary order into a “de facto status quo”).

In this case, instead of Mother's having to prove affirmativelyat a custody trial that a modification was in Child's bestinterest, Mother simply had to point to the new almost-ten-month-long de facto status quo created by the Interim Order,leaving Father with the uphill battle of arguing against thatnew de facto status quo in an attempt to claw back his priorlong-term custody award.

[7] Nevertheless, the relief that Father seeks is impossible toachieve. Father asks us to vacate the Interim Order, effectivelyre-setting the clock back to mid-2017. This is tantamountto “unringing the bell” and rewinding the past two years ofChild's life as if they never happened. This was the *467

same problem this Court faced in Plowman:

we cannot redress this error [i.e.,another trial judge's decision to permit

the mother and child to relocate onan interim basis without a hearing]by eliminating all the proceedingsthat have occurred until this point.Our review must be based on thebest interests of the child at the timeof the present hearing. In custodyproceedings, the paramount concern isthe welfare of the children[;] all [other]considerations, including the rights ofthe parents, are subordinate to thechildren's physical, intellectual, moral,spiritual, and emotional well being. Wecannot ignore the last two years ofthe child's life in Maryland as thoughthey never occurred. Therefore, wefind that the trial court was correct indetermining that it would be useless topass judgment on the prior decision,but could appropriately consider theeffect of that decision on the welfare ofthe minor child.

Plowman, 597 A.2d at 707.

The inability to unring the bell or re-set the clock in custodycases is why it is all the more paramount for trial courtsto abide by due process at all times with an eye towardsa child's best interest. The very nature of custody casesmandates different procedures under different circumstances,but trial courts should be wary of upending the status quoprematurely without substantial justification that the changewas warranted by a child's best interest. Accordingly, weconclude that the trial court abused its discretion, but as in

Plowman, because the ultimate polestar is a child's bestinterest, we also are constrained not to disturb the InterimOrder.

Issues 4-6, 8: Modification of Custody in the Final Order

Father's fourth through sixth and eighth issues 15 querywhether the trial court abused its discretion or erred byawarding shared physical custody in the Final Order because:

(4) the trial court misapplied the 23 Pa.C.S. § 5328(a)custody factors; (5) the modification was against the weightof evidence at trial and contrary to the best interests of Child;(6) Mother failed to meet her burden of proving that the

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modification was in Child's best interest; and (8) the trialcourt failed to consider adequately Mother's past and ongoingcontempt of court in rendering its custody decision in theFinal Order. See Father's Brief at 52-61, 65-67.

[8] Specifically, Father argues that the trial court erred andabused its discretion by awarding custody to Mother whenthe trial court found 7 of the 16 custody factors set forth at

23 Pa.C.S. § 5328(a) favored Father, and 8 other factorswere neutral or not an issue. Father's Brief at 57. Fathercontends that the only factor that favored Mother was Child'spreference for an equally-shared custody arrangement. Id.Father maintains that the trial court was entitled to give weightto Child's preference, but not at the exclusion of all otherfactors, particularly because the households were not equallysuitable. Id. at 56-61. Father also points to Mother's extensivehistory of contemptuous behavior. Id. at 65-67.

*468 In its Rule 1925(a) opinion, the trial court noted thatit had conducted a full analysis of all 16 factors in the FinalOrder. Trial Court Opinion, 8/27/2018, at 8. The trial courtemphasized that the evidence at trial established that bothMother and Father were likely to attend to Child's dailyphysical, emotional, and developmental needs, and claimedit was entitled to give great weight to Child's preference tospend equal time with Father and Mother due to her age andmaturity level. Id.

[9] [10] [11] [12] Before making an award of custody,the Child Custody Act requires trial courts to consider all 16

factors set forth at 23 Pa.C.S. § 5328(a) to the extent the

factors are relevant. A.V. v. S.T., 87 A.3d 818, 823 (Pa.Super. 2014). “It is within the trial court's purview as thefinder of fact to determine which factors are most salient and

critical in each particular case.” M.J.M. v. M.L.G., 63 A.3d331, 339 (Pa. Super. 2013). One of the factors a trial courtmust consider when making any award of custody is “[t]hewell-reasoned preference of the child, based on the child's

maturity and judgment.” 23 Pa.C.S. § 5328(a)(7).

The weight to be accorded a child'spreference varies with the age,maturity and intelligence of that child,together with the reasons given forthe preference. Moreover, as childrengrow older, more weight must be given

to the preference of the child. As thisCourt has recently reaffirmed, wherethe households of both parents wereequally suitable, a child's preference tolive with one parent could not but tipthe evidentiary scale in favor of thatparent.

B.C.S. v. J.A.S., 994 A.2d 600, 604 (Pa. Super. 2010).

It has been said that an older teenage child is like an elephant– she sleeps wherever she wants. While the “Elephant Rule”is not incontrovertible, such as if a teenager's safety wereat risk, or if the other factors strongly demonstrated that ateenager's preference was against her best interest, courts haveto recognize the limitations of their power in determiningwhere older teenagers must reside. This is not a case wherea teenager adamantly refused to spend time with one of herparents, but rather, where the teenager requested the timeto be equally allocated. Furthermore, the trial court found

Child, who was 15 years old at the time, 16 to be mature andthoughtful in her desire to split her time equally between herparents. Trial Court Opinion, 8/27/2018, at 8.

[13] Obviously it is impossible to know now if Child'spreference would have been different had the trial courtmaintained the status quo until the custody trial. But aswe discussed supra, we cannot unring that bell. We alsorecognize Father's concerns about Mother's conduct andrearing of Child. If we were the trial court hearing theevidence firsthand, perhaps we would have weighed thefactors differently. But “[i]t is not this Court's function todetermine whether the trial court reached the ‘right’ decision;rather, we must consider whether, ‘based on the evidencepresented, given due deference to the trial court's weight andcredibility determinations,’ the trial court erred or abused itsdiscretion in awarding custody to the prevailing party.” Kingv. King, 889 A.2d 630, 632 (Pa. Super. 2005). Child wasalready spending a significant amount of time in Mother'scustody prior to the Interim Order. Under an abuse ofdiscretion standard, we cannot conclude that the trial courtwas manifestly unreasonable by adding approximately fourmore days per month to Mother's *469 custody time in lightof a teenage child who preferred that the time be equal.

Issue 7: Father's Petitions for Contempt

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[14] [15] Father's seventh issue asks us to decide whetherthe trial court abused its discretion or erred by failing tohold Mother in contempt for her noncompliance with existingcourt orders. See Father's Brief at 62-65.

Our review of contempt orders is limited to determiningwhether the trial court abused its discretion. We havedescribed judicial discretion regarding contempt orders asfollows.

Judicial discretion requires action in conformity withlaw on facts and circumstances before the trial courtafter hearing and consideration. Consequently, the courtabuses its discretion if, in resolving the issue fordecision, it misapplies the law or exercises its discretionin a manner lacking reason. Similarly, the trial courtabuses its discretion if it does not follow legal procedure.

K.M.G. v. H.M.W., 171 A.3d 839, 844–45 (Pa. Super. 2017)(citations omitted).

In its Final Order, the trial court mentioned Father's contemptpetitions, but did not address them specifically other than tostate summarily that it was dismissing all pending motionsand petitions. Final Order, 6/25/2018, at 23. In its Rule1925(a) opinion, the trial court justified its dismissal bystating that it was not required to make a finding of contempteven where the record may have supported such a finding

because the problems were resolved by the Final Order. 17

Trial Court Opinion, 8/27/2018, at 9.

In response, Father argues that not only did the trial courtincrease Mother's custody time despite her failure to abideby past custody orders, but such “expansion also increasesthe likelihood of future contempt by virtue of her havingmore time with [Child.]” Father's Brief at 63. Father notesthat the trial court failed to explain its dismissal of his May19, 2017 and April 24, 2018 contempt petitions in its FinalOrder. Id. Moreover, he contends that the Final Order doesnot “remedy the instances of contempt Father described inhis contempt petitions, such as Mother's failure to facilitatetelephone contact between [Child] and Father, her failure tofollow the right of first refusal [provision], and her attemptsto alienate [Child's] affections from Father[.]” Id. at 64.

In addition to citing Hill, the trial court relies upon

Flannery v. Iberti, 763 A.2d 927 (Pa. Super. 2000).Trial Court Opinion, 8/25/2018, at 9. In that case, the trialcourt made a finding of contempt against the mother, who

had used alcohol in front of the child, operated a motorvehicle with the child as a passenger, and failed to abide bycertain communication requirements, all of which were indirect violation of prior orders. Nevertheless, the trial courtdeclined to award sanctions. Instead, the trial court modifiedthe custody order to award the father primary legal andphysical custody and required all of the mother's visitationto occur near the father. This Court affirmed the trial court'saction, noting that the trial court “prudently anticipated futurenoncompliance on [the mother's] part” and the “stringent”modification “obviated the need for finding [the mother]in contempt of the prior custody order, while adequatelyaddressing [the father's] legitimate concerns for [the *470

child's] safety going forward.” Id. at 929-30.

We do not find this case to be akin to Flannery. The trialcourt implied that Mother did violate prior court orders in itsopinion, but did not address any of the evidence offered byFather of Mother's behavior or rule on whether or not Motherengaged in the behavior of which Father accuses her. Otherthan re-stating some of the restrictions that were in placepreviously, the trial court failed to address Father's concerns.

This is wholly different than Flannery, where the courtspecifically changed the custody arrangement to minimizeproblems in the future.

We find this case to be more akin to N.A.M. v. M.P.W.,168 A.3d 256 (Pa. Super. 2017). In that case, the recorddemonstrated that the mother flagrantly disobeyed courtorders for ten years. The trial court held the mother incontempt, but refused to impose sanctions and admonishedthe mother instead. On appeal, we held that “[t]he trial court'srefusal to impose sanctions not only permit[ed the mother] todisobey custody orders, but it reward[ed] her for doing so byallowing her to determine matters of custody without adverseconsequences and without regard to [the father's] parental

rights.” Id. at 261-62. We concluded that, “in failing toimpose any sanction, the trial court exercised its discretionwithout reason, which constitutes an abuse of discretion.”

Id.

As in N.A.M., we conclude that by summarily denyingFather's contempt petitions, the trial court exercised itsdiscretion without reason. Therefore, we remand this caseand direct the trial court on remand to rule specificallyon Father's May 19, 2017 and April 24, 2018 contempt

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petitions. The court shall include a finding as to whether ornot the evidence presented by Father at the April 27, 2018hearing demonstrated contempt by Mother. If it did, the trialcourt must then determine an appropriate sanction, or devisea custody arrangement that is in Child's best interest butalso specifically minimizes each instance of contemptuous

behavior in the future. 18

Issue 9: Nullification of Prior Orders[16] In his ninth issue, Father argues that the trial court

abused its discretion by using a generic form order thatwas not specific to the needs of the parties and Child inthe Interim Order and Final Order. Father's Brief at 67-72.He argues that without explanation, the Interim Order andFinal Order superseded all prior orders, including manyorders that had very detailed provisions regarding custodyof Child. Id. He points to his testimony at the hearing thatdescribed the problems the Interim Order created in the areasof busing, the holiday schedule, Child's activities, the parties'communications, and Child's cell phone communications. Id.at 71.

The trial court failed to offer any explanation for thesummary revocation of prior orders in its Interim Order,its March 1, 2018 order denying Father's February 23,2018 motion for special relief, and the Final Order. In theRule 1925(a) opinion, the trial court simply adopted itsreasoning set forth in its discussion of Father's first threeissues. Trial Court Opinion, 8/25/2018, at 10. However, thatdiscussion *471 concerned the trial court's justification ofthe Interim Order based upon its power to modify temporarycustody arrangements pursuant to Rule 1915.13. As such,that reasoning is completely inapplicable to the trial court'ssummary revocation of all prior orders on an ongoing basis.We are forced to conclude that the trial court exercisedits discretion without reason, which constitutes an abuse ofdiscretion. Therefore, on remand, we direct the trial court todetermine which of the prior orders should be reinstated toprovide specific direction to the parties about the nuances oftheir arrangement and to minimize conflict between them inline with Child's best interest.

Issue 10: Mother's Out-of-State Employment[17] Father's tenth and final issue questions whether the

trial court abused its discretion or erred by denying Father'srequest to reopen the record to consider Father's after-trialdiscovery that Mother may have been employed out-of-state.See Father's Brief at 72. Specifically, Father contends that

the trial court seemed to credit and acknowledge Father'sconcerns regarding Mother's out-of-town employment inHarrisburg, which left Child unattended during significantperiods during Mother's custody. Id. at 74. Father maintainsthat after trial, but while the trial court's decision was stillpending, he learned through Mother's bankruptcy matter thatshe had wages from the University of Maryland, suggestingthat she was employed out of state. Id. According to Father,the trial court declined to rule on his petition for special reliefduring motions court, failed to address Mother's possibleout-of-state employment in the Final Order, and withheld itsdecision until after it issued the Final Order, where it deniedFather's motion without explanation. Id. at 75.

Furthermore, Father disagrees with the trial court'scharacterization of the July 2, 2018 order ruling on hismotion as interlocutory. Id. at 77-78. Father maintains thatbecause the order wholly related to Mother's modificationpetition, which was still pending at the time Father presentedthe motion, the order cannot be considered interlocutoryand should have been addressed at the time of the motionpresentation or as part of the Final Order. Id.

In effect, Father's motion brought after-discovered evidenceto the trial court's attention while the matter was still pending.The record suggests that the trial court ignored Father'smotion until after it issued its Final Order, and then denied itsummarily. Under these circumstances, we cannot agree thatthe order was an interlocutory order addressing an entirelyseparate matter. Furthermore, we once again conclude that thetrial court ruled upon Father's motion without reason, therebyabusing its discretion by failing to exercise it. On remand,the trial court may receive evidence if necessary to determinewhether Mother is still employed out of state. If it findsthat she is, the trial court shall consider the impact upon theshared custody arrangement and whether the shared custodyarrangement serves the best interests of Child if Mother isunavailable for significant periods during her custody time,keeping in mind Child's age.

ConclusionBased on the foregoing, we conclude that the trial courtabused its discretion by modifying custody in the InterimOrder prematurely and without sufficient explanation orjustification as to why modification was in Child's bestinterest. Nevertheless, the relief that Father seeks to addressthis abuse of discretion is not in Child's best interest.Accordingly, we cannot disturb the Interim Order. Weconclude that the trial court did not abuse *472 its discretion

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by changing Father's physical custody from primary to sharedin the Final Order. However, we remand to the trial court to (1)rule on Father's May 19, 2017 and April 24, 2018 contemptpetitions as directed in this opinion; (2) determine whichof the prior orders should be reinstated to provide specificdirection to the parties about the nuances of their arrangementand to minimize conflict between them in line with Child'sbest interest; and (3) determine whether Mother is employedout of state, and if so, whether the out-of-state employmentimpacts the shared custody arrangement in the Final Order tothe extent that it no longer serves Child's best interest.

Therefore, we affirm the August 31, 2017 Interim Order. Wevacate the Trial Court's July 2, 2018 order denying Father's

motion for special relief. We vacate the Final Order to theextent it denied Father's May 19, 2017 and April 24, 2018contempt petitions and supersedes all prior orders, but affirmit in all other respects. We remand to the trial court to conductproceedings consistent with this opinion within 30 days.

August 31, 2017 order affirmed. June 25, 2018 ordervacated in part and affirmed in part. July 2, 2018 ordervacated. Remanded to conduct proceedings consistent withthis opinion. Jurisdiction relinquished.

All Citations

209 A.3d 451, 2019 PA Super 146

Footnotes* Retired Senior Judge assigned to the Superior Court.

1 In early 2006, Father filed a second petition for contempt, averring that Mother was spending more time in Virginia withChild than was permitted by the August 2005 order, but the hearing regarding Father's petition ultimately was continuedby consent. Later that year, in response to a petition for special relief filed by Father, the trial court entered an order,which, inter alia, restricted a particular male with a criminal background from being around Child or in Mother's homeduring Mother's custodial periods, and ordered Child to continue attending the same preschool.

2 Encopresis is fecal soiling in places other than the toilet.

3 Presumably, this was preceded by a petition for contempt, but no such petition appears in the record.

4 The record does not reveal when Father re-married.

5 The motion also averred that Mother was in contempt of a child support order; such order is not relevant to this appeal.

6 The trial judge assigned to the case had changed by this juncture.

7 According to Father's motion for special relief discussed infra, the parties could not agree on a schedule and followed the2-2-3 day schedule imposed by the order. See Father's Motion for Special Relief - A, 2/23/2018, at ¶ 13. The 2-2-3 dayschedule imposed by the trial court meant the parties continually alternated days in two and three day increments. InterimOrder, 8/31/2017, at Exhibit A. For example, Father would have custody on Monday and Tuesday, Mother would havecustody on Wednesday and Thursday, and Father would have custody on Friday through Sunday. Id. Then the followingweek, Mother would have custody on Monday and Tuesday, Father would have custody on Wednesday and Thursday,and Mother would have custody on Friday through Sunday. Id. The wisdom of the 2-2-3 day schedule is not at issue here.

8 The motion was not docketed until July 2, 2018. It appears there may have been a delay in docketing this motion, asthe motion referenced being filed prior to the entry of the Interim Order and noticed presentation of the motion for June4, 2018. In its Pa.R.A.P. 1925(a) opinion, the trial court acknowledged that the motion was presented on June 4, 2018,while its decision from modification-of-custody trial was still pending. Trial Court Opinion, 8/27/2018, at 11.

9 The order refers to Wednesday twice. It is likely that the first reference to Wednesday is a typographical error, and itshould be Tuesday, which is not mentioned at all.

10 Like the motion for special relief regarding the alleged out-of-state employment, it appears there was a delay in docketingthe order, as it was dated June 23, 2018.

11 Robert J. Colaizzi, Esquire, has represented Mother in the proceedings below since 2014. As Mother's counsel, AttorneyColaizzi received notices on Mother's behalf regarding the appeal, and in response did not notify this Court of any changesregarding his representation of Mother. Mother neither filed an appellee brief nor notified this Court that she did not wishto participate in this appeal. This Court directed Attorney Colaizzi to appear at oral argument. There, Attorney Colaizziinformed the Court that Mother could not afford to pay him due to pending Chapter 13 bankruptcy proceedings. Wedirect Attorney Colaizzi's attention to the comment to Rule 1.3 of this Commonwealth's Rules of Professional Conduct,which provides that “[u]nless the relationship is terminated as provided in Rule 1.16 [ (relating to declining or terminatingrepresentation) ], a lawyer should carry through to conclusion all matters undertaken for a client.” R.P.C. 1.3, Comment.

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The Rules of Professional Conduct permit a lawyer to withdraw in most circumstances if a client is unable to providepayment. See Rule 1.16(b)(5), (6). We note our disapproval of Attorney Colaizzi's failure to take steps to withdraw fromhis representation of Mother, because he effectively deprived Mother of the opportunity to file a brief pro se or obtainnew representation.Incidentally, we note that the automatic stay in bankruptcy matters does not apply to actions concerning child custody.

See 11 U.S.C. § 362(b)(2)(A)(iii).

12 The Plowman Court recognized that a party may seek certification to appeal an interlocutory order. But “[c]ertificationof an interlocutory appeal is not automatic” and requires “certification from the lower court and permission from this court

before an appeal may be had.” Id. at 704. Although there certainly may be some custody orders that could satisfythe high bar for certification set forth in Pa.R.A.P. 702, it would not be the norm in light of the policy considerations fornot disrupting a custody matter with piecemeal appeals. See G.B. v. M.M.B., 448 Pa.Super. 133, 670 A.2d 714, 718-22(1996) (discussing the interlocutory, non-collateral nature of most interim custody orders and the reasons why piecemealappeals are not in a child's best interest).

13 Of course, “all custody awards are temporary insofar as they are subject to modification by an ensuing court order anytime that it promotes the child's best interest. Thus, by force of circumstances, no award of child custody is permanentregardless of whether the order is styled as interim or final.” J.M., 164 A.3d at 1268.

14 By way of background, the local rules in Allegheny County require a judge to conciliate custody matters before proceedingto trial. Pa. R. Allegheny Cty. Civ. Fam. 1930(c). Normally, parties must praecipe for a conciliation date, and only maydo so after they proceed through all or some portions of the Generations program. Id.; Pa. R. Allegheny Cty. Civ. Fam.1915.3(c)(iii), (iv); Court Manual for the Adult Section of Family Division of the Court of Common Pleas of AlleghenyCounty (Court Manual) at § I(H)(3). The Generations program consists of court-provided education and mediation foradults and children involved in a custody matter. Pa. R. Allegheny Cty. Civ. Fam. 1915.3(c)(iii). If the parties are unable toresolve their custody conflict by consent order after mediation, or if the court orders the parties to do so, the parties thenproceed to a conciliation by a child custody officer. Court Manual at § I(F)(1)-(16). If the parties do not resolve their disputeby a consent order following the custody conciliation by a child custody officer, the case may proceed to a hearing beforea custody hearing officer, psychological evaluations and/or a home study, or a judicial conciliation to address whetherpsychological evaluations should be scheduled. Id. at § I(F)(5)-(8).Despite all of the detail provided about the procedure up until this point in the process, neither the local rules nor theCourt Manual establishes any procedures regarding the judicial conciliation. In the flow chart detailing the steps custodymatters follow in Allegheny County, the judicial conciliation is listed as being part of the “Litigation Phase” that followswhen the parties cannot reach a consent order at a conciliation before a child custody officer. Id. at § I(A). The only stepfollowing the judicial conciliation is a custody trial, suggesting that the conciliation is intended to be followed by a trialand the goal is to focus the issues for that trial. Id.

15 Unfortunately, the order Father presented his issues in his argument section did not track the order Father presented theissues in his Pa.R.A.P. 2116 Statement of Questions Involved. The goal of Rule 2119(a), which requires the appellant todivide the argument into as many parts as there are questions to be argued along with specific headings, is to organizethe analysis in a logical fashion. See Pa.R.A.P. 2119(a). Our numbering of the issues refers to the order Father presentedthe issues in his Statement of Questions Involved. See Father's Brief at 27-29.

16 Because litigation and the appellate process takes time, Child is now 16½ years old.

17 The trial court quotes language purportedly from Hill v. Hill, 422 Pa.Super. 533, 619 A.2d 1086 (1993) in support of

this proposition. However, the quoted language does not appear in Hill.

18 We note that modification of custody is allowed under these facts because the trial court was addressing both contempt

and modification petitions. Cf. P.H.D. v. R.R.D., 56 A.3d 702 (Pa. Super. 2012) (finding court violated father's dueprocess rights by modifying custody order when only presented with a contempt petition). If the trial court only had a

contempt petition before it, the court could only determine sanctions and not modification. Id.

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C.H.L. v. W.D.L., 214 A.3d 1272 (2019)2019 PA Super 210

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214 A.3d 1272Superior Court of Pennsylvania.

C.H.L.v.

W.D.L., Appellant.

No. 2617 EDA 2018|

Argued April 9, 2019|

Filed July 08, 2019

SynopsisBackground: Wife filed action against husband, seekingorder under Protection From Abuse (PFA) Act. The Courtof Common Pleas, Monroe County, Civil Division, Nos.580 DR 2016 and 5626 CV 2018, Jennifer H. Sibum, J.,entered order providing wife exclusive possession of maritalresidence and awarding her temporary sole custody of parties'minor daughter. Husband appealed.

Holdings: The Superior Court, No. 2617 EDA 2018,Kunselman, J., held that:

[1] trial court had authority, under PFA Act, to award maritalresidence to wife;

[2] relief requested by wife in her petition authorized court toaward wife exclusive possession of marital residence;

[3] husband's argument, that trial court erred by awardingwife temporary sole legal and physical custody of their minordaughter, was moot;

[4] Superior Court would review proper procedures for entryof temporary custody provisions in an order under (PFA) Act,even though husband's challenge to wife's temporary custodyaward was moot; and

[5] trial court was not required, under PFA Act, to considerbest interests of parties' minor child in awarding temporarycustody to wife.

Affirmed.

Procedural Posture(s): On Appeal; Motion for Restrainingor Protection Order; Petition for Temporary Custody.

West Headnotes (28)

[1] Protection of Endangered PersonsStandards, scope, and questions on review

Protection of Endangered PersonsDiscretion of lower court

In the context of an order under the ProtectionFrom Abuse (PFA) Act, the Superior Courtreviews the trial court's legal conclusions for anerror of law or abuse of discretion. 23 Pa. Cons.Stat. Ann. §§ 6101-6122.

[2] Protection of Endangered PersonsPerfection;  briefs and assignments

Husband waived his claim that weight of theevidence did not support order under ProtectionFrom Abuse (PFA) Act, in wife's proceedingsseeking protection order, where husband citedno relevant legal authority concerning weight orsufficiency of evidence. 23 Pa. Cons. Stat. Ann.§§ 6101-6122.

[3] Appeal and ErrorCitation to facts and legal authority in

general

The failure to develop an argument with citationto, and analysis of, pertinent authority results inwaiver of that issue on appeal. Pa. R. App. P.2119(b).

[4] Appeal and ErrorCredibility and Number of Witnesses

Appeal and ErrorProvince of, and deference to, lower court

in general

The credibility of witnesses and the weight tobe accorded to their testimony is within theexclusive province of the trial court as the factfinder.

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[5] Protection of Endangered PersonsPresumptions and burden of proof

In reviewing the validity of an order under theProtection From Abuse (PFA) Act, the SuperiorCourt must view the evidence in the light mostfavorable to petitioner and grant her the benefitof all reasonable inferences. 23 Pa. Cons. Stat.Ann. §§ 6101-6122.

[6] Protection of Endangered PersonsQuestions of fact and findings

The Superior Court must defer to the lowercourt's determination of the credibility ofwitnesses at the hearing for an order under theProtection From Abuse (PFA) Act. 23 Pa. Cons.Stat. Ann. §§ 6101-6122.

[7] Protection of Endangered PersonsPerfection;  briefs and assignments

Husband waived his argument that trial courterroneously prevented him from presentingrelevant evidence when trial court ordered himduring direct examination not to “editorialize”in answering questions, in wife's proceedingsseeking protection order under Protection FromAbuse (PFA) Act, where husband failed onappeal to identify evidence he sought tointroduce, court's alleged exclusion of evidence,and his objection to court's ruling. Pa. R. App. P.2119(c).

[8] Appeal and ErrorBriefs and argument in general

Appeal and ErrorCitation to facts and legal authority in

general

The Superior Court shall not develop anargument for an appellant, nor shall it scour therecord to find evidence to support an argument;instead, the Superior Court will deem the issueto be waived.

[9] Appeal and Error

Citation to facts and legal authority ingeneral

When an allegation is unsupported by anycitation to the record, such that the SuperiorCourt is prevented from assessing the issue anddetermining whether error exists, the allegationis waived for purposes of appeal.

[10] Protection of Endangered PersonsOther particular orders or relief

Trial court had authority, under ProtectionFrom Abuse (PFA) Act, to award exclusivepossession of marital residence to wife, in wife'sproceedings seeking order under PFA Act, eventhough husband was sole owner of maritalresidence; husband had duty to support wife and/

or their daughter. 23 Pa. Cons. Stat. Ann. §6108(a)(3).

[11] Protection of Endangered PersonsPleading, notice, and process

Protection of Endangered PersonsOther particular orders or relief

Relief requested by wife in her petition fororder under Protection From Abuse (PFA)Act authorized court to award wife exclusivepossession of marital residence, in wife'sproceedings seeking order under PFA Act,even though wife did not check off box onstandardized petition form indicating a requestto evict and exclude husband from maritalresidence, of which he was sole owner, wherewife checked off box on standardized petitionform requesting that husband be ordered toprovide wife “and/or minor child/ren” with“suitable housing,” and husband had financial

ability to comply with such order. 23 Pa.Cons. Stat. Ann. § 6108(a)(3).

[12] Protection of Endangered PersonsDismissal;  mootness

Husband's argument that trial court erred byawarding wife temporary sole legal and physicalcustody of their minor daughter was moot,

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on husband's appeal from trial court's orderunder Protection From Abuse (PFA) Act, wheretrial court had since issued interim custodyorder intended to supersede temporary custody

provisions of PFA order. 23 Pa. Cons. Stat.Ann. § 6108(a)(4).

[13] Protection of Endangered PersonsDismissal;  mootness

Superior Court would review proper proceduresfor entry of temporary custody provisionsin an order under Protection From Abuse(PFA) Act, on husband's appeal from trialcourt's entry of order under PFA Act, eventhough husband's challenge to wife's temporarysole custody award was moot, where wife'stemporary custody award was operating custodyarrangement for at least three months, and partieswere likely to continue litigating aspects ofcustody arrangement without conducting full

trial. 23 Pa. Cons. Stat. Ann. § 6108(a)(4).

[14] Appeal and ErrorWant of Actual Controversy

Despite the general rule regarding mootness,the Superior Court will decide questions thatotherwise have been rendered moot when one ormore of the following exceptions to the mootnessdoctrine apply: (1) the case involves a questionof great public importance, (2) the questionpresented is capable of repetition and apt to eludeappellate review, or (3) a party to the controversywill suffer some detriment due to the decision ofthe trial court.

[15] Protection of Endangered PersonsOther particular orders or relief

Trial court was not required, under ProtectionFrom Abuse (PFA) Act, to consider best interestsof parties' minor child in awarding temporarysole custody to wife, thereby displacing priorcustody order, in wife's proceedings seekingorder under PFA Act; trial court appropriatelyconsidered risk of abuse posed by husband to

wife and child. 23 Pa. Cons. Stat. Ann. §6108(a)(4).

[16] Appeal and ErrorStatutory or legislative law

When considering issues of statutoryinterpretation, the applicable standard of reviewis de novo and the Superior Court's scope ofreview is plenary.

[17] Protection of Endangered PersonsOther particular orders or relief

The court need not conduct a best interestscustody analysis to award temporary custody asform of relief in proceedings under the Protection

From Abuse (PFA) Act. 23 Pa. Cons. Stat.Ann. § 6108(a)(4).

[18] Protection of Endangered PersonsNature and purpose;  public policy

Protection of Endangered PersonsDomestic abuse and violence

The purpose of the Protection From Abuse (PFA)Act is to protect victims of domestic violencefrom the perpetrators of that type of abuse andto prevent domestic violence from occurring. 23Pa. Cons. Stat. Ann. §§ 6101-6122.

[19] Protection of Endangered PersonsOther particular orders or relief

Trial courts have the authority to enter ordersunder the Protection From Abuse (PFA) Act that

conflict with custody orders. 23 Pa. Cons.Stat. Ann. § 6108(a)(4).

[20] Protection of Endangered PersonsOther particular orders or relief

Custody wise, an order under the ProtectionFrom Abuse (PFA) Act is not designed to impose

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anything but emergency relief. 23 Pa. Cons.Stat. Ann. § 6108(a)(4)(v).

[21] Protection of Endangered PersonsOther particular orders or relief

While the domestic violence emergency is stillpending, an order under the Protection FromAbuse (PFA) Act may alter a pre-existingcustody order and remand for clarification to

avoid conflict. 23 Pa. Cons. Stat. Ann. §6108(a)(4).

[22] Protection of Endangered PersonsOther particular orders or relief

The Protection From Abuse (PFA) Act does notrequire a child to be physically struck beforea court can award temporary sole custody toa plaintiff; the court may do so even thoughthe defendant has inflicted serious abuse upon

the plaintiff alone. 23 Pa. Cons. Stat. Ann. §6108(a)(4)(iii)(B).

[23] Protection of Endangered PersonsDomestic abuse and violence

The Protection From Abuse (PFA) Act guardsagainst defendants who use children as toolsagainst those seeking protection, even if thechildren are not themselves physically abused.

23 Pa. Cons. Stat. Ann. § 6108(a)(4).

[24] Child CustodyGrounds and Factors in General

It may be reasonable and necessary for the trialcourt to institute a temporary arrangement, underthe Child Custody Act, as a stopgap during

litigation. 23 Pa. Cons. Stat. Ann. § 5323(b).

[25] Child CustodyAuthority of courts and judges

A trial court has authority, under the ChildCustody Act, to award custody on a temporarybasis so that it may address emergency situationsand protect a child until a final custody hearingcan be held, when a permanent order can be

entered. 23 Pa. Cons. Stat. Ann. § 5323(b);Pa. R. Civ. P. 1915.13.

[26] StatutesGiving effect to entire statute and its parts;

 harmony and superfluousness

The Superior Court must presume that thelegislature did not intend any statutory languageto exist as mere surplusage.

[27] Child CustodyWelfare and best interest of child

The best interests mandate, under the ChildCustody Act, only applies to final custodyawards, not temporary solutions to emergencies.

23 Pa. Cons. Stat. Ann. § 5323(b).

[28] Constitutional LawPreliminary injunction;  temporary

restraining order

Courts should be wary of prolonged interimorders, under the Protection From Abuse (PFA)Act, as they could violate a non-custodial parent'sconstitutional right to due process. U.S. Const.

Amend. 14; 23 Pa. Cons. Stat. Ann. § 6108(a)(4).

*1275 Appeal from the Order Entered, July 30, 2018, in theCourt of Common Pleas of Monroe County, Civil Division atNo(s): 580 DR 2016 and 5626 CV 2018. Jennifer H. Sibum, J.

Attorneys and Law Firms

Megan Michael, Allentown, for appellant.

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BEFORE: KUNSELMAN, J., MURRAY, J., and

PELLEGRINI * , J.

Opinion

OPINION BY KUNSELMAN, J.:

W.D.L. (Husband) appeals from an order issued pursuantto the Protection From Abuse (PFA) Act, 23 Pa.C.S.A. §§6101-6122. The PFA order provided C.H.L. (Wife), inter alia,exclusive possession of the marital residence and awarded hertemporary sole custody of the parties' four-year-old daughter;the child was not named as a protected party in the order. Aftercareful review, we affirm.

In a meticulous, 42-page Rule 1925(a) opinion, the trialcourt detailed the “very calculated, complex, web of domesticviolence, control and intimidation by Husband against Wife.”See T.C.O., 11/16/18, at 1. Those facts, crucial to ourunderstanding the court's decision, are ultimately not essentialto the disposition of Husband's appeal. Briefly, the overtureis this:

The parties wed after just three weeks of dating whenHusband was 46 and Wife was 20. Their five-year marriageproduced a four-year-old daughter and extensive litigation,replete with protective orders, contempt violations andcriminal charges. Not until the instant PFA hearing, however,did the court recognize Husband's “manipulation of all facetsof the criminal justice and court system in order to achievepower and control over Wife.” See id. at 30. The court statedthat Husband “was playing the system like a Stradivarius.”See N.T., 7/30/18, at 42. Although Husband tried to persuadethe court that Wife suffered from various mental illnesses, thecourt ultimately concluded that Wife's erratic behavior wasattributable to years of domestic violence.

At the PFA hearing, Wife testified to Husband's extensiveabuse and produced photographic evidence of the same. Thecourt further determined that Husband used custody of theparties' child as a “weapon against Wife.” See T.C.O. at41. The court issued a two-year PFA order, which includedprovisions awarding Wife exclusive possession of the maritalresidence and temporary sole custody of the *1276 childpending a custody conference scheduled for seven weekslater.

Husband filed this timely appeal and presents five issues forour review:

1. Did the trial court err and/or abuse its discretion ingranting Wife's protection from abuse petition when theaward was against the weight of the evidence presentedand against the credibility of Wife based on evidenceduring the hearing?

2. Did the trial court err and/or abuse its discretion innot allowing Husband to present certain evidence whichwould have shown that Husband was not abusive towardWife and would have shown the nature of the parties'relationship, such as text messages and letters?

3. Did the trial court err and/or abuse its discretion in notallowing Husband to present evidence which showed hehad the right to occupy the subject property pursuant toa divorce settlement agreement, and where Husband hadnot welcomed Wife to the subject property and askedWife to leave the subject property?

4. Did the trial court err and/or abuse its discretion inevicting Wife from the subject property when the partieshad executed a divorce settlement agreement, whichstated appellant would have exclusive possession of thesubject property?

5. Did the trial court err and/or abuse its discretion inawarding temporary primary custody to Wife when Wifetestified Husband had not physically harmed the childnor threatened the child, and Wife testified that Husbandwas a good father, and was precluded from presentingthe current custody order where he had sole physicalcustody?

See Husband's Brief at 9-10.

[1] Our standard of review for PFA orders is well-settled. Inthe context of a PFA order, we review the trial court's legalconclusions for an error of law or abuse of discretion. Boykaiv. Young, 83 A.3d 1043, 1045 (Pa. Super. 2014) (citationsomitted).

[2] Husband's first claim seemingly challenges the weightof the evidence presented at the PFA hearing. Throughouthis brief, however, Husband conflates the weight of evidencewith the sufficiency of evidence. See Husband's Brief at 42.The combination of Husband's departure from the actual issuepresented, and the fact that he cites no relevant authoritymakes it difficult to discern the substantive nature of hisclaim.

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[3] Whatever its foundation, we conclude Husband's firstissue is waived. It is well-established that the failure todevelop an argument with citation to, and analysis of,pertinent authority results in waiver of that issue on appeal.See Pa.R.A.P. 2119(b); Eichman v. McKeon, 824 A.2d 305,319 (Pa. Super. 2003). Here, Husband cites no relevant legalauthority to discuss either the weight or the sufficiency ofthe evidence; one cited case addresses a court's appearanceof impropriety and the other is a decades-old precedentconcerning the absence of due process at a zoning hearing.See Husband's Brief at 30. Husband merely attempts to re-litigate the facts and the PFA court's credibility findings. SeeHusband's Brief at 30-42.

[4] [5] [6] To that end, we observe that the credibility ofwitnesses and the weight to be accorded to their testimonyis within the exclusive province of the trial court as the fact

finder. See Mescanti v. Mescanti, 956 A.2d 1017, 1020(Pa. Super. 2008). In reviewing the validity of a PFA order,this *1277 Court must view the evidence in the light mostfavorable to petitioner and granting her the benefit of allreasonable inferences. See S.W. v. S.F., 196 A.3d 224, 228(Pa. Super. 2018) (citation omitted). And we must defer to thelower court's determination of the credibility of witnesses atthe hearing. Id. Thus, even if Husband had preserved his firstissue, we would still find his claim to be meritless.

[7] Turning to his second claim, Husband argues that the PFAcourt erroneously prevented him from presenting relevantevidence, such as text messages and letters. Again, our reviewis hindered by deficiencies in Husband's brief.

This portion of Husband's argument section is a mere 200

words. 1 See Husband's Brief at 43-44. Although he citeslegal precedent, a rule of evidence, and the transcript, hedoes not actually identify the evidence he sought to introduce,nor the court's alleged exclusion of the evidence, nor hisobjection to the court's ruling. Id. An exchange during hisdirect examination is the only identified portion of the recordwhere Husband claims the court erroneously limited theadmission of his evidence:

ATTORNEY: So [Wife] is [at the marital residence] as ofnow?

HUSBAND: She is not. She left on the 21st of this monthafter being requested to, after about two months' worthof requests --

THE COURT: Alright, I'm going to stop you there,[Husband], so you're just going to answer the questionand not editorialize, otherwise we're never going to getthrough this.

N.T., 7/30/18, at 3-4.

Notably, neither Husband nor his attorney took issue with thetrial court's procedure:

ATTORNEY: Fair enough.

HUSBAND: Yes, ma'am.

Id. at 4.

Compounding our confusion, we note that the trial courtexplained that the only evidentiary rulings it made wereactually in Husband's favor:

At no time during the final PFAhearing did Wife raise an objection toany evidence presented by Husbandduring his case in chief. Nor didthe Court sustain any objection orpreclude Husband from presentingevidence of any kind. In fact, theonly objections raised during theproceeding were by Husband's counselseeking to preclude evidence ortestimony Wife sought to admit, which[the court] sustained.

See Trial Court Opinion, 11/16/18 at 36-37.

For several reasons, we must again find waiver. For one thing,issues not raised in the lower court are waived and cannotbe raised for the first time on appeal. Pa.R.A.P. 302(a). IfHusband had other contentions during the hearing, he didnot properly raise them. In terms of his appellate brief, weobserve that “[i]f reference is made to pleadings, evidence,charge, opinion or order, or any other matter appearingin the record, the argument must set forth, in immediateconnection therewith, or in a footnote thereto, a reference tothe place in the record where the matter referred to appears.”Pa.R.A.P. 2119(c). If Husband had other contentions he meantto address in his brief, he did not properly reference them.

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[8] [9] It is not the duty of this Court to act as appellant'scounsel, and we decline to do so. See Hayward v. Hayward,868 A.2d 554, 558 (Pa. Super. 2005). “We shall not developan argument for an appellant, *1278 nor shall we scourthe record to find evidence to support an argument; instead,we will deem the issue to be waived.” Commonwealth v.Cannavo, 199 A.3d 1282, 1289 (Pa. Super. 2018) (citationsomitted). When an allegation is unsupported by any citationto the record, such that this Court is prevented from assessingthe issue and determining whether error exists, the allegation

is waived for purposes of appeal. Commonwealth v.Williams, 176 A.3d 298, 306 (Pa. Super. 2017) (citationsomitted). This Court cannot conduct a meaningful review ifit has to guess what issues an appellant is appealing. See

Jones v. Jones, 878 A.2d 86, 89 (Pa. Super. 2005) (findingwaiver when this Court could not discern appellant's issueson appeal) (citation omitted). We conclude that Husband'ssecond issue is also waived.

We discuss Husband's third and fourth issuescontemporaneously, as both concern the court's award ofexclusive possession of the marital residence to Wife. First,Husband contends that Wife was not entitled to receiveexclusive possession of the marital residence, because Wifehad previously executed a marriage settlement agreement

wherein she had granted possession to Husband. 2 Second,Husband contends that Wife was not entitled to this relief,because she did not explicitly request it in her PFA petition.

Husband argues that the court did not allow him to presentthe settlement agreement showing he had a right to excludeWife from the subject property. See Husband's Brief at 45.Like his previous evidentiary challenge, Husband's recitationof what transpired at the hearing is just not true. Husbandcannot cite to where he attempted to present such evidence butwas rebuffed by the court. See also T.C.O., at 36-37 (excerptquoted above).

[10] More to the point, Husband is simply incorrect thatthe court lacked authority to award the marital residence toWife because she does not hold title to it. The ProtectionFrom Abuse Act specifically allows the court to grant aplaintiff exclusive possession of the residence even thoughthe defendant is the sole owner if the defendant has a duty tosupport the plaintiff or minor children living in the residence.

See 23 Pa.C.S.A. § 6108(a)(3).

[11] In the alternative, Husband argues that the courtcould not award exclusive possession, because Wife didnot expressly request such relief in her PFA petition. SeeHusband's Brief at 48. He analogizes the instant case to whena court issues a PFA order on behalf of a party who did notproperly petition for one, a situation clearly forbidden by

Section 6108(c) (concerning mutual orders of protection).

His argument is novel, but we need not decide whether thecourt is confined to only those forms of relief requested in thepetition, or whether the court has the broad discretion to award

any form of relief under Section 6108. We conclude thatthe relief Wife requested in her PFA petition authorized the

court to award exclusive possession under Section 6108(a)(3).

Wife's PFA petition was a standardized document where she,as the petitioner, filled in blanks and checked off boxes.Such is a typical practice across the Commonwealth andoften completed with the help of volunteers. Husband istechnically *1279 correct; Wife did not check off the boxthat stated: “Plaintiff is asking the court to evict and excludethe Defendant from the following residence: _____.” SeeWife's Petition for Protection From Abuse at 4. Likewise,Wife did not check off the box, which prayed upon the courtto: “Grant such other relief as Plaintiff requests and/or thecourt deems appropriate.” Id.

However, Wife did check the box that requested the court to:“Require Defendant to provide Plaintiff and/or minor child/ren with other suitable housing.” Id. Wife also articulated thatshe lost “money, car, home” on account of Husband's abuse.Id. Consequently, Husband was on notice at the PFA hearingthat he would be responsible for providing suitable housingfor Wife and their child if Wife succeeded on her petition.

Given his responsibility to the parties' child, the court mayhave determined it was best for the child to remain at thesame address while custody switched from Husband to Wifeby virtue of the PFA order. But we need not speculate,because Wife clearly requested that Husband provide her andtheir child with suitable housing. The PFA Act authorizesthe court to provide such relief. The court observed thatHusband had the financial ability to comply. Consequently,the court did not abuse its discretion when it determinedthat exclusive possession of the marital residence was anappropriate mechanism to facilitate this relief. Husband'sthird and fourth issues are also without merit.

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[12] We turn now to Husband's final contention that the courterred by awarding Wife temporary custody of their four-year-old daughter. See Husband's Brief at 51. Before we addressthe merits of Husband's challenge, we consider whether thePFA order's temporary custody provision is moot.

The PFA order, dated July 30, 2018, awarded Wife temporarysole legal and physical custody of the child, and directed theparties to attend a custody conference before a conciliator onSeptember 12, 2018. The parties appeared for the conference,and the conciliator took the matter under advisement. Beforea decision was issued, Husband filed a PFA petition againstWife on behalf of the child and provided the court a photoof a welt on the child's body. The court granted Husband atemporary PFA order, and the child was placed in his custody.A final PFA hearing was delayed until late October 2018

while the local Children and Youth Services investigated. 3

Following the investigation, the court held a final PFA hearingand denied Husband's petition. Custody then reverted back toWife, pursuant the temporary custody provision of the July30, 2018 PFA order.

On November 1, 2018, the custody conciliator's reportindicated that the parties were unable to reach an agreement.The court scheduled a preliminary hearing for November19, 2018, appointed the child a guardian ad litem, ordered acomprehensive custody evaluation, and established an interimcustody order. There, our knowledge of the custody case endswith the trial court's issuance of its Pa.R.A.P. 1925(a) opinionon November 16, 2018.

There is no question the court intended for the PFA order'scustody provisions to apply only on an emergency, temporarybasis until the parties met at the custody conference. Becausethe Interim Custody Order (dated November 1, 2018) almostcertainly superseded the temporary custody provisions of thePFA Order (dated July 30, 2018), it appears that the issue*1280 Husband presents in this appeal regarding the PFA

Order's custody provision is moot. 4

[13] This Court has held that “we may sua sponte raise theissue of mootness, as we generally cannot decide moot orabstract questions, nor can we enter a judgment or decree towhich effect cannot be given.” E.B. v. D.B., 209 A.3d 451,461, 2019 PA Super 146, at *7, (Pa. Super. May 6, 2019)

(citing In re L.Z., 91 A.3d 208, 212 (Pa. Super. 2014) (en

banc), rev'd on other grounds, 631 Pa. 343, 111 A.3d 1164(2015) (quotations omitted).

[14] Despite our general rule regarding mootness,

this Court will decide questions thatotherwise have been rendered mootwhen one or more of the followingexceptions to the mootness doctrineapply: 1) the case involves a questionof great public importance, 2) thequestion presented is capable ofrepetition and apt to elude appellatereview, or 3) a party to the controversywill suffer some detriment due to thedecision of the trial court.

Id. (quoting In re D.A., 801 A.2d 614, 616 (Pa. Super.2002)).

In E.B. v. D.B., we reviewed the merits of an interim order thatmodified a pre-existing custody arrangement pending a finalhearing. The interim order was reviewable because otherwisethe interim order would likely have evaded our review

due to its interlocutory nature. Id.; see also Plowmanv. Plowman, 409 Pa.Super. 143, 597 A.2d 701 (1991)(reviewing an interlocutory order permitting a mother torelocate with her child despite the existence of a later orderentered after a full custody hearing).

Here, because the instant PFA order affected the non-custodialparent's right to “access to the child and impacted the statusquo that would later set the stage for the full custody trial,we conclude that we ought to review the proper proceduresfor entry” of temporary custody provisions in a PFA order.See id. As in E.B., we are satisfied that the questionpresented concerning the PFA's temporary custody provisionis “capable of repetition and apt to elude appellate review.”See id. at *8. As in E.B., “the history of this case suggeststhat these parties are likely to litigate continually aspects oftheir custody arrangement, and the trial court might again tryto resolve their issues without conducting a full trial.” See id.Although the trial court fashioned a sole custody provision ona temporary basis, that provision was the operating custodyarrangement for at least three months. We may proceed to themerits of Husband's final contention.

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[15] Husband asserts that the court erred when it did notconsider the child's best interests when displacing the priorcustody order and awarding Wife temporary custody out ofthe PFA order.

[16] To discern whether the court erred, we must examinethe connection between the Protection From Abuse Act (23Pa.C.S.A. §§ 6101-6122) and the current iteration of theChild Custody Act (23 Pa.C.S.A. §§ 5321 – 5340), both ofwhich are chapters under the Domestic Relations Code. Whenconsidering issues of statutory interpretation, the applicablestandard of review is de novo and our scope of review isplenary. Trout v. Strube, 97 A.3d 387, 389 (Pa. Super. 2014).

Believing the facts to be similar, Husband relies exclusively

on Shandra v. Williams, 819 A.2d 87 (Pa. Super. 2003),wherein we concluded that the trial court had improperlymodified a child custody order following a PFA hearingwithout *1281 first providing the parties an opportunity tointroduce evidence relating to the best interests of the child.

Shandra, 819 A.2d at 88. Husband's reliance is misplaced.

In Shandra, although the custody portion of the PFA

order was entered ostensibly under the auspices of section6108(a)(4) (relating to temporary custody), the trial courteffectively entered a final custody order. There, the courtpermanently suspended all of the father's custodial rightsuntil he achieved a certain condition, namely the release

from his halfway house. Id. at 90-91. We reiterated thatthe right of the PFA court to award temporary custody wasintended to provide ancillary relief regarding children inabuse actions, but not to establish a procedure for determining

permanent custody. Id. at 91. (Citation omitted). Because

the Shandra PFA court effectively issued a final custodyaward, it erred by not abiding by the proper custodyprocedure, including notice and an opportunity to be heardon substantive custody considerations, i.e. the child's “bestinterests” as defined by statute.

In Shandra, we quoted the pertinent custody statute nearlyverbatim when we stated: “[I]t is well-settled, that in anyinstance in which child custody is determined, the overridingconcern of the court must be the best interest[s] and welfareof the child, including the child's physical, intellectual,

emotional and spiritual well-being.” See id. (Emphasis

added); see also 23 Pa.C.S.A. § 5301(a).

In the years since Shandra, sections 5301- 5315 of theChild Custody Act have been repealed and replaced. The newiteration of the Child Custody Act requires a 16-factor, bestinterests analysis when awarding any form of custody. See

23 Pa.C.S.A. § 5328(a).

In other words, we could not apply the Shandra bestinterests rule in any event, as it was based on a statute nowdefunct. What Husband essentially argues then, is that thecourt erred by not conducting a best interests analysis underSection 5328(a) of the current Child Custody Act.

[17] Absent guidance from our Legislature or our SupremeCourt, we conclude that a PFA court need not conduct abest interests custody analysis to award temporary custodyas form of relief under section 6108 of the Protection FromAbuse Act.

[18] [19] The purpose of the Protection From Abuse Act isto protect victims of domestic violence from the perpetratorsof that type of abuse and to prevent domestic violence from

occurring. Ferko-Fox v. Fox, 68 A.3d 917, 921 (Pa. Super.2013)(citation omitted). It is well-settled that trial courtshave the authority to enter protection from abuse orders thatconflict with custody orders. See Lawrence v. Bordner, 907A.2d 1109, 1113 (Pa. Super. 2006) (citing Dye for McCoyv. McCoy, 423 Pa.Super. 334, 621 A.2d 144, 145 (1993)).The PFA Act allows the court to award temporary custodyor establish temporary visitation rights with regard to minor

children. See 23 Pa.C.S.A. § 6108(a)(4). Where the courtfinds after a hearing that the defendant has inflicted seriousabuse, the court may deny the defendant custodial access

to a child. See 23 Pa.C.S.A. § 6108(a)(4)(iii). In orderto prevent further abuse during periods of access to theplaintiff and child during the exercise of custodial rights,the court shall consider, and may impose on a pre-existingcustody award, conditions necessary to assure the safety of the

plaintiff and minor children from abuse. See 23 Pa.C.S.A.§ 6108(a)(4)(vi).

[20] [21] Custody wise, a PFA order is not designed toimpose anything but emergency relief. See Dye for McCoy,

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supra, 621 A.2d at 145. To understand this, look no furtherthan the PFA Act: “Nothing in this paragraph [relating totemporary custody as a form of relief] shall bar either *1282party from filing a petition for custody under Chapter 53(relating to custody) or under the Pennsylvania Rules of Civil

Procedure.” See § 6108(a)(4)(v). But while the domesticviolence emergency is still pending, a PFA order may altera pre-existing custody order and remand for clarification toavoid conflict. See Dye for McCoy, 621 A.2d at 145. “To holdotherwise would have the effect of emasculating the centraland extraordinary feature of the PFA which is to prospectivelycontrol and prevent domestic violence.” Id.

[22] Moreover, the PFA Act does not require a child to bephysically struck before a court can award temporary solecustody to a plaintiff. The court may do so even though thedefendant has inflicted serious abuse upon the plaintiff alone.

See § 6108(a)(4)(iii)(B).

[23] There is good reason for this. For one, research indicatesthat children who are exposed to domestic violence suffera torrent of adverse effects regardless of whether theyare direct victims of the physical abuse. See, e.g., RosieGonzalez & Janice Corbin, The Cycle of Violence: DomesticViolence and Its Effects on Children, 13 SCHOLAR 405,413 (2011). Even simple exposure to such violence producesphysical and mental results similar to those observed in

maltreated children. See id. (Footnotes omitted). 5 The PFAAct also guards against defendants who use children as toolsagainst those seeking protection, even if the children are notthemselves physically abused. In the instant case, the courtfound exactly that.

Wife testified she always “positioned” herself away from thechild when Husband beat her so the child would not see theabuse. See N.T., 7/30/18, at 27. Wife further testified thatHusband is not a physical danger to the child, but she stated:

I believe mentally it's not healthy for [the child], because[Husband] tells [the child] ‘mommy's going away for along time’ and ‘you're going to get a new mommy,’ and[the child] repeats ‘I don't want a new mommy, I love mymommy’ and yeah, he like tells, just tells her that. So he'snot, no, he's not physically abusive to [the child] but he tellsher stuff that you should not tell a four-year-old.

Id., at 30.

The court classified these types of statements as destructiveand concluded that *1283 Husband has utilized custodyof the parties' small child “as a weapon against Wife.” SeeT.C.O. at 41.

Contrary to Husband's assertion, the PFA court actuallyconcluded that temporary custody was in the child's bestinterests. Id. at 43. Indeed, some of the court's considerations

appear to correspond with a formal custody analysis. 6

Nevertheless, when awarding temporary custody out of a PFAorder, the court need only consider the risk the defendant

poses to the child as well as the plaintiff. See 23 Pa.C.S.A.§ 6108(a)(4).

We cannot ignore the sheer impracticality of Husband'ssuggestion, that a court conduct a full-blown custody hearingas part of a final PFA hearing. With an eye toward judicialeconomy, we observe that the dichotomy between a PFAorder's temporary custody provision and a final custody orderis akin to a jurisdictional challenge under the Uniform ChildCustody Jurisdiction and Enforcement Act, 23 Pa.C.S.A. §§5401 et seq. There, a court must first hold a hearing todetermine whether it even has jurisdiction to award custody;the court leaves for another day entirely the substantivecustody considerations. But even then, a court exercisingtemporary emergency jurisdiction may award interim custodyrelief. “A court of this Commonwealth has temporaryemergency jurisdiction if [inter alia] it is necessary in anemergency to protect the child because the child or siblingor parent of the child is subjected to or threatened withmistreatment or abuse.” § 5324(a) (emphasis added). The riskof abuse to the parent alone is enough to authorize the courtto protect the child.

[24] [25] Similarly, a temporary custody provision in aPFA order is just like any other interim custody order.Section 5323(b) of the Child Custody Act makes clearthat interim custody orders are not the types of custodyawards necessitating a 16-factor, best interests analysis under

Section 5328(a). Often, it will be reasonable and necessaryfor the trial court to institute a temporary arrangement as astopgap during litigation. See E.B., 209 A.3d at 464–65, 2019PA Super 146, at *10. It is well-settled that trial court hasauthority to award custody on a temporary basis so that it mayaddress emergency situations and protect a child until a finalcustody hearing can be held, when a permanent order can be

entered. See S.W.D. v. S.A.R., 96 A.3d 396, 405 (Pa. Super.2014) (citing Pa.R.C.P. No. 1915.13 (“Special Relief”); see

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also 23 Pa.C.S.A. § 5323(b) (allowing interim award ofcustody in the manner prescribed by the Pennsylvania Rulesof Civil Procedure governing special relief).

[26] [27] The object of all statutory interpretation andconstruction is to ascertain and effectuate the intention ofthe General Assembly. See 1 PA.C.S.A. § 1921(a). We mustpresume that our Legislature did not intend any statutory

language to exist as mere surplusage. See, e.g., C.B.v. J.B., 65 A.3d 946, 951 (Pa. Super. 2013). With thoseprinciples in mind, we conclude there is no conflict betweenthe PFA Act's relief of temporary custody and the ChildCustody Act's mandate that a court conduct a best interests

analysis when awarding any form of custody. See 23

Pa.C.S.A. § 6108(a); see also 23 Pa.C.S.A. § 5323(b). Thebest interests mandate only applies to final custody awards,not temporary solutions to emergencies.

*1284 [28] We recognize the apprehension that some couldexploit the PFA Act, i.e. that dishonest parents might utilize aprotection order as a vehicle to bypass the Child Custody Act

and obtain a backdoor custody modification. The DomesticRelations Code accounts for the potential exploitation byseparating the custody issue into two inquiries: first, a PFAcourt addresses the exigent risk of abuse posed to the child aswell as the petitioner; thereafter, the custody court determinesthe child's best interests. This procedure safeguards the rightsthe both parties in their dual roles as PFA litigants and as

parents. 7 Still, as we cautioned in E.B., supra, courts shouldbe wary of prolonged interim orders as they could violate anon-custodial parent's constitutional right to due process. Thatwas not the situation here.

In the case at bar, the PFA court appropriately considered therisk of abuse posed by Husband to Wife and the child when

granting Wife temporary sole custody pursuant to Section6108(a)(4). Its decision was not an abuse of discretion.

Order affirmed.

All Citations

214 A.3d 1272, 2019 PA Super 210

Footnotes* Retired Senior Judge assigned to the Superior Court.

1 We observe, however, that Husband did not include a certificate of compliance ensuring that the brief, which totaled 55pages, was less than 14,000 words. See Pa.R.A.P. 2135(a).

2 We note that at the time of the PFA hearing, the parties were not divorced. Wife has since averred that the settlementagreement is void and unenforceable on the grounds of incapacity and intentional fraud. In other words, this is not acase where, long after the divorce decree and equitable distribution, a PFA court awarded one ex-spouse possessionof other's property.

3 The results of the CYS investigation are not in the record, but the trial court noted that CYS did not commence adependency action. See T.C.O. at 22.

4 By now there should exist a final custody order, which presumably subsumes both the Interim Custody Order and thetemporary custody provision of the PFA Order.

5 We observe the research's non-exhaustive litany that might befall exposed children:Children living in violent homes suffer both immediate and long-term effects such as trauma-related symptoms,depression, low self-esteem, and aggression. They are also likely to suffer from unhealthy sleeping and eatinghabits as infants, exhibit aggressive and regressive behavior in school, and behave delinquently as teenagers. Thepsychological impact on children living in violent homes can manifest itself as post-traumatic stress disorder (PTSD) orother psychiatric disorders, including dissociative disorders, anxiety, and mood disorders. These children also have atendency to exhibit suicidal ideation, increased levels of fear, unnatural passivity and dependency, as well as impulsivityand extreme crying. Younger children generally suffer from poor health, insomnia, excessive screaming, frequentheadaches, stomachaches, diarrhea, asthma, and peptic ulcers. Accordingly, children exposed to family violence areadmitted to hospitals twice as often as other children, have an increased number of psychosomatic complaints, andare more frequently absent from school due to health problems. Furthermore, victims of abuse frequently turn to drugand alcohol abuse in order to cope with traumatic childhood events, which in turn can lead to the development of fataldiseases such as heart disease, lung cancer, and liver disease.

* * *

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In addition to the increased risk for future violent victimization, children exposed to domestic violence are also morelikely to become perpetrators of violence against others.

Id. at 413-415, 418 (footnotes and quotations omitted).

6 The Child Custody Act mandates that a court consider both the abuse one parent suffers at the hands of the other, as

well as the attempts of the parent to turn the child against the other. See 23 Pa.C.S.A. § 5328(a)(2),(8). A court mustalso give weighted consideration to those factors affecting the safety of the child. Id.

7 In larger counties where the courts have been able to adopt a “one family, one judge” policy, this process is all the moreseamless.

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works.

Plowman v. Plowman, 409 Pa.Super. 143 (1991)597 A.2d 701

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 1

KeyCite Yellow Flag - Negative Treatment Distinguished by D.G.B. on Behalf of N.G.A. v. W.K., Pa.Super., November

13, 2018

409 Pa.Super. 143Superior Court of Pennsylvania.

Diane PLOWMANv.

Bradley PLOWMAN, Appellant.

Argued July 30, 1991.|

Filed Oct. 7, 1991.

SynopsisIn full custody hearing, the Court of Common Pleas,Allegheny County, Family Division, No. FD 88–09524, Baer,J., entered order granting legal and physical custody of minorchild to mother, subject to partial custody of father. Fatherappealed. The Superior Court, No. 01290 Pittsburgh 1990,Cercone, J., held that: (1) after granting mother permission tomove with child to Maryland, court's delay of over one yearbefore conducting full evidentiary hearing was unreasonable,and (2) custody determination was supported by sufficientevidence.

Affirmed.

McEwen, J., concurred in result.

Procedural Posture(s): On Appeal.

West Headnotes (11)

[1] Child CustodyMatters or evidence considered

On father's appeal from order granting motherphysical and legal custody of child subjectto partial custody of father, Superior Courtcould consider earlier order allowing mother torelocate with child to Maryland, even thoughfather did not immediately appeal that order;order allowing mother to relocate was notappealable, as issue of whether child shouldlive was intertwined with issue of which parentshould maintain custody over child. 42 Pa.C.S.A.§ 702(b).

4 Cases that cite this headnote

[2] Appeal and ErrorCollateral matters and proceedings

Order is considered final and appealable if itis separable from and collateral to main causeof action, right involved is too important to bedenied review, and question presented is suchthat if review is postponed until final judgmentin case, claimed right will be irreparably lost.

3 Cases that cite this headnote

[3] Constitutional LawFactors considered;  flexibility and

balancing

Due process is concept incapable of exactdefinition; rather, it is flexible notion whichcalls for such procedural safeguards as particularsituation demands to ensure fundamentalfairness to potentially aggrieved litigant.U.S.C.A. Const.Amend. 14.

3 Cases that cite this headnote

[4] Constitutional LawNotice and hearing in general

Right of litigant to in-court presentation ofevidence is essential to due process. U.S.C.A.Const.Amend. 14.

1 Cases that cite this headnote

[5] Constitutional LawWitnesses;  confrontation and cross-

examination

In almost every setting where importantdecisions turn on questions of fact, due processrequires opportunity to confront and cross-examine witnesses. U.S.C.A. Const.Amend. 14.

2 Cases that cite this headnote

[6] Child CustodyTime for hearing

Plowman v. Plowman, 409 Pa.Super. 143 (1991)597 A.2d 701

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Where either parent files petition which raisesissue of whether it is in best interest ofchild to move with custodial parent outside ofjurisdiction, hearing must be held either beforemove, or under exigent circumstances, withinreasonable time thereafter.

18 Cases that cite this headnote

[7] Child CustodyTime for hearing

After giving mother authority to move out ofstate with child, trial court's delay of over oneyear before holding full evidentiary hearingon mother's custody modification petition wasunreasonable; however, trial court correctlydetermined that it would be useless to passjudgment on prior decision, but that it couldappropriately consider effect of that decision onwelfare of child.

12 Cases that cite this headnote

[8] Child CustodyRemoval from jurisdiction

Factors for trial court to utilize indetermining whether custodial parent should bepermitted to relocate geographical distance fromnoncustodial parent were enumerated.

8 Cases that cite this headnote

[9] Child CustodyBehavior of parties in general

In granting legal and physical custody of minorchild to mother, subject to partial custodyof father, trial court adequately consideredmother's interference with father's relationshipwith child, mother's refusal to accommodaterelationship between father and child, andfather's parenting skills; trial court examinedmother's recalcitrance in hindering father'saccess to child, appropriately drafted specificcustody order to preclude mother from denyingfather access to child, and also concludedthat mother moved to Maryland for better jobopportunities in her chosen profession.

2 Cases that cite this headnote

[10] Appeal and ErrorRelevance

Trial court has wide discretion in ruling onrelevancy of evidence, and its rulings thereonwill not be reversed absent abuse of discretion.

4 Cases that cite this headnote

[11] Child CustodyAdmissibility

In rendering final order granting legal andphysical custody of minor child to mother,subject to partial custody of father, court properlyexcluded evidence that mother made certainwages between four and seven years prior to hermove with child to Maryland, which evidencefather argued tended to prove that she couldhave obtained employment in Pittsburgh areainstead of relocating to Maryland; mother hadstudied to become medical assistant, evidencenot relating to her job search in that professionwould be irrelevant, and her ability to obtainemployment during period to which evidencepertained did not have impact on her ability tofind employment when she moved.

Attorneys and Law Firms

**703 *146 James Mahood, Pittsburgh, for appellant.

Robert J. Fall, Pittsburgh, for appellee.

Before McEWEN, OLSZEWSKI and CERCONE, JJ.

Opinion

CERCONE, Judge:

This is an appeal from the final order of the Court ofCommon Pleas of Allegheny County granting legal andphysical custody of a minor child to appellee/mother, subjectto the partial custody of appellant/father. We affirm.

Plowman v. Plowman, 409 Pa.Super. 143 (1991)597 A.2d 701

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 3

Appellant Bradley Plowman (hereinafter “father”) andappellee Diane Plowman (hereinafter “mother”) were marriedon May 28, 1983. During the course of the marriage, they hadone child, Jason Plowman. On September 13, 1988, motherfiled a complaint in divorce against father. In the complaint,she sought custody of Jason. On January 6, 1989, the partiesagreed to a custody order which awarded primary physicalcustody to mother and granted partial physical custody tofather.

Later that year, mother filed a petition for modificationso that she could move to Gaithersburg, Maryland withJason to accept employment as a medical assistant. Inimmediate response, father petitioned the court for a writof ne exeat to prevent mother from moving to Marylandwith the minor child. Judge Kaplan of the Allegheny CountyCourt of Common Pleas Family Division entered an orderwhich denied modification of the custody order as well asfather's petition for writ of ne exeat, and sub silentio allowedmother to relocate to Maryland with Jason. He ordered anexpedited custody conciliation hearing if the parties couldnot agree on a visitation schedule. Judge Kaplan also orderedthe court appointed psychologist to consider the change incircumstances in conducting his evaluation of Jason. On June23, 1989, father filed a petition for modification of custody.On June 27, 1989, the parties entered into an interim orderof custody which provided that both parties maintain jointlegal custody of *147 Jason while allowing mother primaryphysical custody of the child in Gaithersburg. Mother andJason moved to Maryland in July of 1989.

Between that time and the time of the full custody hearingin July, 1990, appellant filed three petitions for specialrelief alleging that mother failed to adhere to the interimcustody order by prohibiting his access to Jason. On July17, 1990, a full custody hearing was held before JudgeBaer of the Allegheny County common pleas court familydivision. In his opinion, Judge Baer determined that motherdisplayed a natural ability to parent which made her theideal primary caretaker for Jason. He found that upon herarrival in Maryland, she enrolled Jason in an excellent school,further indicating her dedication to the child and willingnessto make sacrifices for the child. He also found that whenmother vacated the marital residence, she prohibited fatherfrom seeing the child, with one exception, until establishmentof a court order. Although mother abided by the order, shetreated it mechanically, disregarding any flexibility to observethe child's best interests. Mother has generally not made thechild available for father's telephone calls and would not

allow the child to visit with father when she is in Pittsburghunless required by court order.

The trial court also found that father is an understanding andthoughtful person who has a close and supportive relationshipwith his family. Judge Baer noted that although father hada previous bout of depression and related alcohol and drugproblems, he overcame those problems which consequentlyhad no bearing on the **704 Court's decision. He foundthat when mother left the marital residence in September,1988, father's relationship with Jason was cut off by mother'sunilateral actions until January, 1989. Since then, fatherremained a part of the child's life and has done as well as couldbe expected to establish and maintain his role as a father underdifficult circumstances.

Judge Baer gave credence to the opinion of the courtappointed psychologist, Dr. Rosenblum, who found that thechild's attachment to mother was stronger than the attachment*148 to his father. Judge Baer concluded that mother has

been generally uncooperative and difficult with father's partialcustody and in this regard has not served the child's bestinterests. He stated, however, that one parent's ability topromote a continuing relationship with the other is only onefactor to be considered, and in this case, was not a sufficientfactor to justify a removal of the child from the mother andan award of primary custody to the father.

Judge Baer subsequently issued an order granting motherphysical and legal custody of Jason subject to the partialcustody of father. The order was drafted specifically to allowfather a continuing relationship with the child father withoutany interference from mother. This timely appeal followed inwhich father raises three issues for our review:

1. Did the court err in permitting the mother to move outof the jurisdiction with the minor child without holdinga hearing and making a determination of the child's bestinterests;

2. Did the court err in failing to adequately consider themother's interference with the father's relationship withthe child, her refusal to accommodate a relationshipbetween the father and the child, and the father'sparenting skills in making its determination;

3. Did the court err in excluding evidence offered by thefather relating to the job opportunities and salaries forthe mother in the Pittsburgh area and in finding that themother had legally compelling reasons to move?

Plowman v. Plowman, 409 Pa.Super. 143 (1991)597 A.2d 701

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[1] Before addressing these claims on their merits, however,we must determine whether father's first issue on appeal isproperly before us. Mother has opposed our consideration ofthe order allowing her to relocate with Jason to Marylandon the grounds that father did not immediately appeal JudgeKaplan's order under the collateral order doctrine or bycertification of the appeal, pursuant to 42 Pa.C.S.A. § 702(b).

*149 [2] The collateral order doctrine allows an appeal ofan interlocutory order if certain conditions are met. As thiscourt has set forth previously:

Under [ Cohen v. BeneficialIndustrial Loan Corporation, 337 U.S.541, 69 S.Ct. 1221, 93 L.Ed. 1528(1949) ], an order is considered finaland appealable if (1) it is separablefrom and collateral to the main causeof action; (2) the right involved istoo important to be denied review;and (3) the question presented is suchthat if review is postponed until finaljudgment in the case, the claimed rightwill be irreparably lost.

Kronz v. Kronz, 393 Pa.Super. 227, 232, 574 A.2d 91, 93–94 (1990)(citation added). Under this test, we find that theorder issued by Judge Kaplan in this case was not appealable.While father's right is extremely important and deservesconsideration, we do not find that the order was separablefrom and collateral to the main cause of action. Here, fatherfiled a petition to restrain mother from removing the childfrom the jurisdiction. The court denied this petition andallowed mother to relocate with the child. In effect, the issueof where the child should live is intertwined with the issue ofwhich parent should maintain custody over the minor child.

We are also unpersuaded by mother's argument that fathercould have sought certification to appeal. Certification of aninterlocutory appeal is not automatic. A party must obtaincertification from the lower court and permission from thiscourt before an appeal may be had. 42 Pa.C.S.A. § 702(b);**705 Pa.R.A.P. Rule 1301, et seq., 42 Pa.C.S.A. Counsel

for mother has not provided us with a rule of law, nor hasour exhaustive research found one, which prohibits a party

from appealing an interlocutory order where that party did notseek certification for interlocutory appeal based on that order.Having determined that the issue raised by father is properlybefore us, we turn to the merits of father's appeal.

In his first argument, father avers that Judge Kaplan erredin entering an order allowing mother to relocate with *150Jason to the Washington D.C. area without holding a hearing

to consider the child's best interests. 1 He alleges that becausethe full hearing on custody occurred one year later, the courtbased its decision on the new status quo created after themove. This, he contends, deprived him of due process.

Judge Baer found this issue moot because he held asubsequent evidentiary hearing on the issue of custody.Therefore, a review of Judge Kaplan's decision would havesubverted the court's ultimate obligation to review the bestinterests of the child as of the time of the hearing under thefacts as they then existed.

This court has previously held:

As a general rule an actual case orcontroversy must exist at all stages ofthe judicial process, and a case once“actual” may become moot becauseof a change in facts.... An exceptionis made, however, for cases in whichthe issues are capable of repetitionbut likely to evade review if thegeneral rule on mootness is applied....Thus, an action will not be foundmoot when the challenged action isin its duration too short to permit fulllitigation and there is a reasonableexpectation that the same complainingparty will be subject to the same actionagain.... Where the same party willnot be subject to the harm again andthe action is not a class action, still,the case will not be found moot ifthe issues capable of repetition butlikely to evade review are “substantialquestions,” or “questions of publicimportance.”

Plowman v. Plowman, 409 Pa.Super. 143 (1991)597 A.2d 701

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In re Estate of Dorone, 349 Pa.Super. 59, 65, 502 A.2d1271, 1274 (1985) (citations omitted). Father alleges that hewas denied procedural due process since he was not affordeda full evidentiary hearing before the court allowed Jasonto relocate in Maryland with his mother. In a case suchas this, we could never reach this issue because appellantwould necessarily be forced to delay his appeal until a final*151 custody order had been entered. According to the trial

court, the issue became irrelevant once final custody wasdetermined. However, the non-custodial parent's right to aproper determination of whether the custodial parent maymove out of the jurisdiction with the minor child is substantialenough to require our consideration of the proper proceduresto be implemented at such a juncture. We therefore turn to themerits of father's appeal.

[3] [4] [5] Due process is a concept incapable of exactdefinition. Rather, it is a flexible notion which calls forsuch procedural safeguards as a particular situation demandsto ensure fundamental fairness to a potentially aggrieved

litigant. Corra v. Coll, 305 Pa.Super. 179, 182, 451 A.2d480, 482 (1982). The fundamental requirement of due processis the opportunity to be heard at a meaningful time and in a

meaningful manner. Mathews v. Eldridge, 424 U.S. 319,333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976). We havepreviously stated:

The right of a litigant to an in-court presentation ofevidence is essential to due process: “In almost everysetting where important decisions turn on questions of fact,due process requires an opportunity to confront and cross-examine witnesses.”

Hall v. Luick, 314 Pa.Super. 460, 463, 461 A.2d 248, 250

(1983) citing Goldberg v. Kelly, 397 U.S. 254, 269, 90S.Ct. 1011, 1021, 25 L.Ed.2d 287, 300 (1970). We find thatdue process requires a full evidentiary hearing to be heldeither before the child is moved from the jurisdiction or withina reasonable time thereafter.

**706 Our decision rests on the substantial rights of parentsto maintain a continuing and meaningful relationship withtheir minor children. However, where the parents disregardthe rights of one another, or as here where one parent displaysantipathy towards the other, it becomes the responsibility ofthe court to ensure fairness of both procedure and result in acustody action.

While the best interests of the child are more closely alliedwith the interest and quality of life of the custodial *152

parent, Gruber v. Gruber, 400 Pa.Super. 174, 183, 583A.2d 434, 438 (1990), this factor must be balanced againstan appreciation of and sensitivity to the mutual interest of thechild and the non-custodial parent in maintaining as healthyand loving a relationship as possible. Id. As Judge Beck statedin Gruber:

The task of this court is to sacrifice thenon-custodial parent's interest as littleas possible in the face of the competingand often compelling interest of acustodial parent who seeks a better lifein another geographical location.

Id. In this context, we note that while the custodial parenthas the right to make decisions concerning his or her welfareand the welfare of the minor children, that parent has aresponsibility towards the non-custodial parent to maintainthe relationship between the minor children and the non-custodial parent. This may only be accomplished where thecourt is permitted to decide custody before the minor childis moved from the jurisdiction. In Gruber we developed athree part test to facilitate the trial court's determination ofwhether the best interests of a minor child are served bymoving outside of the jurisdiction with the custodial parentor remaining in the jurisdiction with the non-custodial parent.We now decide when those interests must be balanced. Wefind that the same competing interests found in Grubermandate that the balancing must be made before the childis permitted to move from the jurisdiction, or under exigentcircumstances, within a reasonable time thereafter.

[6] We make no requirement for a hearing when the twoparents are able to arrive at a mutual decision regardinga minor child's move from the jurisdiction. In the absenceof an agreement, however, the non-custodial parent has acompelling right to be heard as to whether such a move is inthe best interests of the minor child. In fact, such a hearingmay be his or her last meaningful opportunity *153 to be

heard on the question of custody. 2 We therefore hold thatwhere either parent files a petition which raises the issue ofwhether it is in the best interest of the child to move with thecustodial parent outside of the jurisdiction, a hearing must be

Plowman v. Plowman, 409 Pa.Super. 143 (1991)597 A.2d 701

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held either before the move, or under exigent circumstances,within a reasonable time thereafter.

We find that our Rules of Civil Procedure also support thisresult. The rules provide, in pertinent part:

No judgment may be entered bydefault or on the pleadings.

Pa.R.Civ.P. Rule 1915.9, 42 Pa.C.S.A. While this ruleostensibly applies to final orders of custody, Rule 1915.9,Explanatory Note, we find it applicable where the result ofany order substantially affects the rights of either parent, orthe minor children.

[7] In the case sub judice, the court allowed no fullevidentiary hearing to be held on whether the best interestsof the child were served by allowing him to move withmother to Maryland. Nor is there any indication that JudgeKaplan entertained oral argument on the issue. This waserror. The lower court was obligated to entertain a fullevidentiary hearing on the issue of modification of custodybefore allowing even a de facto modification. The trial courthere waited over one year before having a full evidentiaryhearing on mother's custody modification petition. Duringthis time period, father's ability to defend his position erodedbecause the more time **707 Jason was allowed to stay inMaryland, the more it could be argued that it was in his bestinterests to remain in Maryland under the new status quo.Given the compelling interests of the non-custodial parentinvolved here, the court's delay in holding the evidentiaryhearing was unreasonable.

[8] In Gruber, supra, we set forth the following three factorsfor the trial court to utilize in determining whether *154 acustodial parent shall be permitted to relocate a geographicaldistance from a non-custodial parent:

1. the potential advantages of the proposed move and thelikelihood that the move would substantially improve thequality of life for the custodial parent and the child andis not the result of a momentary whim on the part of thecustodial parent;

2. the integrity of the motives of both the custodial and non-custodial parent in either seeking the move or seeking toprevent it;

3. the availability of realistic, substitute visitationarrangements which will adequately foster an ongoingrelationship between the child and the non-custodialparent.

Id. at 184–85, 583 A.2d at 439. These considerations mustthen be factored into the ultimate consideration of the court,which is to determine what is in the best interests of thechild. See Lee v. Fontine, 406 Pa.Super. 487, 594 A.2d 724(1991), at ––––, 594 A.2d at 726 (any judicially determinedpreconditions may amplify, but do not alter, the best intereststandard).

After reviewing the record we find that Judge Kaplan failed toconsider the impact of any of these concerns when decidingto allow mother to relocate with Jason. However, we cannotredress this error by eliminating all the proceedings that haveoccurred until this point. Our review must be based on thebest interests of the child at the time of the present hearing.Commonwealth ex rel. Gorto v. Gorto, 298 Pa.Super. 509,514, 444 A.2d 1299, 1301 (1982) (facts as of the time ofhearing are the foundation for determination of the court). Incustody proceedings, the paramount concern is the welfare ofthe children and all considerations, including the rights of theparents, are subordinate to the children's physical, intellectual,

moral spiritual and emotional well being. Constant A.v. Paul C.A., 344 Pa.Super. 49, 65, 496 A.2d 1, 9 (1985).We cannot ignore the last two years of the child's life inMaryland as though they never occurred. Therefore, we findthat the trial court was *155 correct in determining that itwould be useless to pass judgment on the prior decision, butcould appropriately consider the effect of that decision on the

welfare of the minor child. 3

[9] Father also contends that the lower court failed toadequately consider the mother's interference with the father'srelationship with the child, her refusal to accommodate arelationship between the father and the child and the father'sparenting skills in making its determination. Implicitly, fatherargues that the trial court in the custody hearing failedto consider those factors enunciated in Gruber, supra. Wedisagree.

On appeal, our scope of review isbroad in that we are not bound bydeductions and inferences drawn bythe trial court from the facts found,

Plowman v. Plowman, 409 Pa.Super. 143 (1991)597 A.2d 701

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nor are we required to accept findingswhich are wholly without supportin the record. On the other hand,our broad scope of review does notauthorize us to nullify the factfindingfunction of the trial court in order tosubstantiate our judgment for that ofthe trial court. Rather, we are bound byfindings supported in the record, andmay reject conclusions drawn by thetrial court only if they involve an errorof law, or are unreasonable in lightof the sustainable findings of the trialcourt.

Lee, at 725. Our review of the record finds that Judge Baeradequately focused on the **708 hostilities between motherand father which caused mother to hinder the relationshipbetween father and the minor child. We find the followingdiscussion of the lower court opinion:

The father has a close and supportive relationship with hisfamily, which has helped the father and supplies a *156supportive, loving environment for the child. The wouldalso be of benefit to the child and will be of benefit to thechild as the child grows.... Between the fall of 1987, whenthe father returned to the marital residence, and the fall of1988, when the mother left the marital residence, the fathersaw the child extensively and developed a good, loving,supportive father-son relationship with the child. When themother left the home permanently in the fall of 1988, thefather's relationship was cut off by the mother's unilateralactions until January 1989. Since January of 1989, thefather has remained a part of the child's life and has doneas well as could be done to establish and maintain his roleas father under difficult circumstances. The father is a goodfather, who participates actively in the child's life and hasa close and loving relationship with the child.

The mother left the marital residence permanently in thefall of 1988 and prohibited the father from seeing the child,with one exception of four hours for the next hundred days.The mother, after establishment of the court order at theend of that hundred days. abided by that court order byand large; however, the mother has treated the court ordermechanically and she has shown no recognition of anyneed for flexibility to observe the child's best interests. Themother has generally not made the child available for thefather's telephone calls. The mother concedes candidly that

when she is in Pittsburgh, unless she is required by courtorder to allow the father to see the child, she prohibits thefather from seeing the child.

Based upon all of these facts, the Court enters the followingconclusions of law. Both mother and father possess goodparenting skills and are both equally good parents, who arededicated to the child.

The mother has generally been uncooperative and difficultwith the father's partial custody and this has not served thechild's best interest; the father would do more *157 topromote partial custody today than the mother. If this courtwere to decide this case solely on the factor of cooperationbetween the parents and the variable of which of theseparties would be more conscientious in allowing the otherto see the child, it would decide this case for the father; butthat is only one factor to be considered, and, after reviewingit carefully, it is not a sufficient factor in this case to justifya removal of the child from the mother and awarding ofcustody of the child to the father.

Judge Baer examined mother's recalcitrance in hinderingfather's access to the minor child and specifically determinedthat it was not a compelling factor to award physicalcustody to father. Thus, Judge Baer appropriately drafted aspecific custody order to preclude mother from denying fatheraccess to Jason. Furthermore, Judge Baer also concludedthat mother moved to Maryland for better job opportunitiesin her chosen profession. We therefore find that JudgeBaer adequately addressed the concerns found compelling inGruber, supra. His conclusions are supported by the record

and are reasonable. We will not disturb them on appeal. 4

[10] Finally, appellant argues that the trial court erredin excluding evidence of job opportunities and salaries inthe Pittsburgh area and in finding that the mother hadlegally compelling reasons to move. After careful review, wefind appellant's argument meritless. A trial court has widediscretion in ruling on the relevancy of evidence, and itsrulings thereon will not be **709 reversed absent an abuseof discretion. Dunkle v. West Penn Power Co., 400 Pa.Super.334, 337, 583 A.2d 814, 815 (1990). Evidence which “tends*158 to establish facts in issue or in some degree advance

the inquiry” is relevant. Scullion v. EMECO Industries, Inc.,398 Pa.Super. 294, 301, 580 A.2d 1356, 1360 (1990).

[11] In this case, father attempted to introduce evidencethat mother made certain wages between 1982 and 1985.He argues that this evidence tends to prove that she could

Plowman v. Plowman, 409 Pa.Super. 143 (1991)597 A.2d 701

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have obtained employment in the Pittsburgh area instead ofrelocating to Maryland. We do not dispute that father mayinquire into mother's motives in moving to Maryland. Gruber,supra. Nor do we dispute that mother's ability to obtain similaremployment in Pittsburgh may be relevant to her motives.However, the relationship between the evidence offered hereand mother's present ability to find similar work in Pittsburghis tenuous at best. Mother had studied to become medicalassistant. Therefore, evidence not relating to her job searchin that profession would be irrelevant. Moreover, her abilityto obtain employment in 1982 does not have any impact onher ability to find employment in 1989. External factors, such

as the employment rate, the financial status of the Pittsburgheconomy, and mother's educational achievements after 1982,have an effect on her subsequent job search. We find no abuseof discretion in the trial court's exclusion of this evidence.

Order affirmed.

McEWEN, J., concurs in the result.

All Citations

409 Pa.Super. 143, 597 A.2d 701

Footnotes1 We interpret father's use of the term “hearing” as referring to a full evidentiary hearing on the custody issue to determine

whether the move is in the best interests of the child.

2 If a parent decides to move outside of the jurisdiction with the minor child without a consent agreement, or withoutpermission of the court under the circumstances enunciated, the trial court should utilize its contempt powers to forcethe custodial parent's compliance.

3 We note that no court can adequately address the contempt both mother and father maintain against one another.Certainly, this discord affects the minor child adversely and is not in his best interests. We advise the parents to set asidetheir individual preconceived notions and truly consider the best interests of the child, not their own preconceived notions.

4 We note that appellant's written argument on this point is an attempt to relitigate the issues already addressed by the trialcourt. This court has consistently held that it is inappropriate for the Superior Court to make factual determinations basedupon conflicting evidence. Lanard & Axilbund, Inc. v. Muscara, 394 Pa.Super. 251, 259–60, 575 A.2d 615, 619 (1990).

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S.W.D. v. S.A.R., 96 A.3d 396 (2014)2014 PA Super 146

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 1

KeyCite Yellow Flag - Negative Treatment Distinguished by R.L.T. v. L.A.T., Pa.Super., March 18, 2015

96 A.3d 396Superior Court of Pennsylvania.

S.W.D., Appellantv.

S.A.R., Appellee.

Argued Jan. 30, 2014.|

Filed July 11, 2014.

SynopsisBackground: Father filed a petition for special relief thatsought to change child's school and modify the custodyschedule. The Court of Common Pleas of Armstrong County,Civil Division, No. 2009–0579, Panchik, J., denied father'spetition. Father appealed.

Holdings: The Superior Court, No. 1481 WDA 2013, Stabile,J., held that:

[1] the trial court did not have to consider the statutory childcustody factors when ruling on father's petition to determinechild's school;

[2] the trial court's determination that the school motherwanted child to attend was in child's best interest was not anabuse of discretion; and

[3] the trial court abused its discretion when it failed toconsider the statutory child custody factors before ruling onfather's petition for special relief.

Affirmed in part; vacated in part; remanded.

Procedural Posture(s): On Appeal.

West Headnotes (11)

[1] Child CustodyReview

Child Custody

Discretion

The Superior Court reviews a trial court'sdetermination in a custody case for an abuse ofdiscretion, and its scope of review is broad.

9 Cases that cite this headnote

[2] Child CustodyQuestions of Fact and Findings of Court

Because the Superior Court cannot makeindependent factual determinations, it mustaccept the findings of the trial court that aresupported by the evidence in child custody case.

17 Cases that cite this headnote

[3] Child CustodyQuestions of Fact and Findings of Court

Child CustodyCredibility of witnesses

The Superior Court defers to the trial judgeregarding credibility and the weight of theevidence in child custody case.

1 Cases that cite this headnote

[4] Child CustodyQuestions of Fact and Findings of Court

The trial judge's deductions or inferences from itsfactual findings do not bind the Superior Courtin child custody case.

3 Cases that cite this headnote

[5] Child CustodyQuestions considered

Child CustodyQuestions of Fact and Findings of Court

The Superior Court may reject the trial court'sconclusions in child custody matter only if theyinvolve an error of law or are unreasonable inlight of its factual findings.

17 Cases that cite this headnote

[6] Child CustodyWelfare and best interest of child

S.W.D. v. S.A.R., 96 A.3d 396 (2014)2014 PA Super 146

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When a trial court orders a form of custody, thebest interest of the child is paramount.

88 Cases that cite this headnote

[7] Child CustodyDecision and findings by court

A trial court's failure to place its reasoningregarding the statutory child custody factors onthe record or in a written opinion is an error of

law. 23 Pa.C.S.A. § 5328(a).

17 Cases that cite this headnote

[8] Child CustodyMultiple factors

Child CustodyDecision and findings by court

A trial court must apply the statutory childcustody factors and issue a written explanation ofits decision when it orders any of the seven formsof custody provided for by the Child Custody

Act. 23 Pa.C.S.A. § 5328(a).

16 Cases that cite this headnote

[9] Child CustodyEducation

The trial court did not have to consider thestatutory child custody factors when ruling onfather's petition to determine child's school; thetrial court did not change the form of legal

custody. 23 Pa.C.S.A. § 5328(a).

98 Cases that cite this headnote

[10] Child CustodyEducation

The trial court's determination that the schoolmother wanted child to attend was in child'sbest interest was not an abuse of discretion, inproceeding to determine whether child wouldattend the school mother recommended or theschool father recommended; father concededthat enrollment at his chosen school would onlybe temporary, father admitted that his problem

with mother's chosen school was its distancefrom his home, and there was no evidence thatchild would receive a substandard education atmother's chosen school.

8 Cases that cite this headnote

[11] Child CustodyJoint custody

The trial court abused its discretion when itfailed to consider the statutory child custodyfactors before ruling on father's petition forspecial relief, which sought to modify the parties'

custody schedule. 23 Pa.C.S.A. §§ 5323(a),

5328(a).

5 Cases that cite this headnote

Attorneys and Law Firms

*397 Robin L. Frank, Pittsburgh, for appellant.

Kenneth R. Harris, Jr., Butler, for appellee.

BEFORE: BOWES, WECHT, and STABILE, JJ.

Opinion

OPINION BY STABILE, J.:

In this child custody case, S.W.D. (Father) appeals an orderthat denied his petition for special relief. Father had requestedthe trial court to order his and S.A.R.'s (Mother) son, B.A.D.(Child), to be enrolled in the school of Father's choice and toratify an informal change to the physical custody schedule.Regarding Child's schooling, we hold the trial court did notabuse its discretion in ordering Child enrolled in the schoolof Mother's choice. Regarding physical custody, however,we hold the trial court erred by not addressing all the childcustody factors as required by the Child Custody Act (Act),

23 Pa.C.S.A. §§ 5323(d), 5328(a). We therefore affirmin part, vacate in part, and remand to the trial court forproceedings consistent with this opinion.

*398 I

S.W.D. v. S.A.R., 96 A.3d 396 (2014)2014 PA Super 146

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This case began when Father filed a complaint for custodyof Child. The trial court held a full hearing, and issued a

final custody order dated January 8, 2010. 1 Under the order,Mother and Father have shared legal custody. Mother hasprimary physical custody. Father has partial physical custodyevery Tuesday from 5:30 p.m. until Thursday at 5:30 p.m.,and every other weekend from Friday at 5:30 p.m. untilSunday at 5:30 p.m. Sometime in September 2012, the partiesinformally agreed to modify their custody arrangement to a

5–2–2–5 schedule (the “informal change”). 2

In April 2013, Father filed a petition for special relief raisingtwo issues: Child's schooling and a change to the custodyschedule. Father asked the trial court to approve his choiceof school and to ratify the informal change to custody, whichhe believed was a modification to the January 8, 2010, finalcustody order. The trial court held an evidentiary hearing onAugust 2, 2013. Father and Mother were the only witnesseswho testified.

At the time of the hearing, Child was five years old andabout to enter kindergarten. He had attended preschoolin Worthington, Armstrong County, not far from Mother'sresidence. Father wanted to place Child in Harvest BaptistAcademy, a private Christian school in WestmorelandCounty, closer to where Father lives. Father preferred HarvestBaptist Academy because it would shorten his time to takeChild to school following his custody days. Harvest BaptistAcademy is about 8.5 miles from Father's residence and13.5 miles from Mother's. Father also considered Mother'sreligion, Baptist, in choosing a school. Father intended topay the school's tuition, except that he wanted Mother tocontribute about $80.00 per month, the same amount shehad been paying for preschool. Though Harvest BaptistAcademy teaches students in kindergarten through 12thgrade, Child's enrollment there was to be only temporary,because Mother's school district offers more classes andextracurricular activities.

Mother instead enrolled Child in West Hills Primary School,where she lives, in Armstrong School District. Despitehaving shared legal custody, Mother did so without Father'sknowledge or consent, and omitted his name and informationfrom all of Child's educational records. Mother preferred WestHills Primary School because it would be more permanent,and Child would not have to change schools or schooldistricts. Also, Child already knew several children fromattending preschool there.

After the hearing, the trial court denied Father's petition. In

its written memorandum, the trial court, after quoting 23Pa.C.S.A. § 5328(a), explained its decision as follows:

Considering all those factors above that are relevant tothe issues now before us, we find that it is in the Child'sbest interest to remain enrolled at West Hills PrimarySchool, with the parties continuing to follow the custodyschedule set forth in the [c]ourt's January 8, 2010 Order.The parties both understood that enrollment at HarvestBaptist Academy would potentially, if not likely, be atemporary arrangement. The Child would then have tochange schools *399 and school districts late on in hiseducational career, which we find to be unnecessary and notsuited to maintaining consistency in his life. We further findthat Father's chief concern with West Hills Primary Schoolis not its academic reputation, but instead its distance fromhis residence. Although we are not unsympathetic to aparent's difficulty and expense in providing transportationfor custody exchanges, we do not find Father's concern inthis regard to be weighty enough to warrant the move toHarvard Baptist Academy. We have been presented withno competent, persuasive evidence that the Child cannotreceive a quality education at West Hills Primary, whichwill be free of charge to the parties. We therefore will orderthat the Child remain enrolled there.

With regard to the parties' physical custody schedule, wenote that the schedule contained in the January 8, 2010Order was never changed in this [c]ourt. The parties, ofcourse, are free to modify the order as they see fit. However,we have been presented with no evidence to suggest thatthe current 5–2–2–5 schedule is more in the Child's bestinterest than the previous schedule that the [c]ourt orderedafter a full custody hearing. We also are convinced thatthe current schedule was intended by the parties to betemporary in nature, subject to the discontinuance if eitherof the parties became unsatisfied with it or believed itto be unbeneficial to the Child. The parties thus shouldcontinue the custody schedule contained in the January 8,2010 order, except as they may otherwise mutually agree.

Trial Court Opinion, 8/14/13, at 6–7 (emphasis in original).The trial court ordered (1) Child to be enrolled at West HillsPrimary for the 2013–14 school year; (2) Mother to provideWest Hills Primary with Father's contact information anddesignate Father as a legal parent or guardian; and (3) theparties to follow the final custody order entered on January8, 2010. The trial court deemed the first two provisions non-negotiable.

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Father timely appealed to this Court and filed a concisestatement of errors complained of on appeal. In response,the trial court issued a Rule 1925(a) memorandum resting onits previous opinion, except to additionally address Father'scontention that the court abused its discretion in maintainingthe custody schedule established by the January 8, 2010 order.

Father presents four issues for our review:

I. Whether the trial court abused its discretion by denyingFather's request to enroll the minor child in HarvestBaptist Academy, which is contrary to the best interestsof the Child?

II. Whether the trial court committed an abuse of discretionby failing to enforce the established status quo custodyschedule and by instead reinstating the custody schedulefrom a past order of court?

III. Whether the trial court committed an abuse ofdiscretion by denying Father's request to enroll the Childin the Harvest Baptist Academy, which is against theweight of the evidence presented at trial?

IV. Whether the trial court committed an abuse of discretionand erred in failing to consider all of the custody factors

set forth in 23 Pa.C.S.A. § 5328(a), and by failing toaccount for the required factors in reaching its decision?

Appellant's Brief at 12. For ease of discussion, we firstaddress the schooling issue. We then turn to the request toratify *400 the informal change to the custody schedule.

II

[1] [2] [3] [4] [5] We review a trial court'sdetermination in a custody case for an abuse of discretion, and

our scope of review is broad. M.P. v. M.P., 54 A.3d 950,953 (Pa.Super.2012). Because we cannot make independentfactual determinations, we must accept the findings of thetrial court that are supported by the evidence. Id. We deferto the trial judge regarding credibility and the weight of theevidence. Id. The trial judge's deductions or inferences fromits factual findings, however, do not bind this Court. Id. Wemay reject the trial court's conclusions only if they involve anerror of law or are unreasonable in light of its factual findings.Id.

III

A

Under the Child Custody Act,

After considering the factors set forth in section 5328(relating to factors to consider when awarding custody), thecourt may award any of the following types of custody if itis in the best interest of the child:

(1) Shared physical custody.

(2) Primary physical custody.

(3) Partial physical custody.

(4) Sole physical custody.

(5) Supervised physical custody.

(6) Shared legal custody.

(7) Sole legal custody.

23 Pa.C.S.A. § 5323(a). 3

In this case, the parties have shared legal custody of Child.“Legal custody” is defined as “[t]he right to make majordecisions on behalf of the child, including, but not limitedto, medical, religious and educational decisions.” Id. § 5322.“Shared legal custody” is the right of more than one individualto legal custody. Id. Mother has primary physical custody, orthe right to assume actual possession and control of Childfor the majority of the time. Id. Father has partial physicalcustody, i.e., the right to physical custody for less than amajority of the time. Id.

The Act defines the various forms of custody as the “right” ofa party to make decisions for the child, or to exercise physicalcontrol over the child. Id. § 5322. Thus, in ordering a formof custody, the trial court dictates which party has the rightto custody.

[6] When a trial court orders a form of custody, the best

interest of the child is paramount. J.R.M. v. J.E.A., 33A.3d 647, 650 (Pa.Super.2011). To determine the child's bestinterest, the trial court must consider the following 16 factors

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when “ordering any form of custody.” 23 Pa.C.S.A. §5328(a). Those factors are:

(1) Which party is more likely to encourage and permitfrequent and continuing contact between the child andanother party.

(2) The present and past abuse committed by a partyor member of the party's household, whether there is acontinued risk of harm to the child or an abused partyand which party can better provide adequate physicalsafeguards and supervision of the child.

(3) The parental duties performed by each party on behalfof the child.

*401 (4) The need for stability and continuity in thechild's education, family life and community life.

(5) The availability of extended family.

(6) The child's sibling relationships.

(7) The well-reasoned preference of the child, based on thechild's maturity and judgment.

(8) The attempts of a parent to turn the child against theother parent, except in cases of domestic violence wherereasonable safety measures are necessary to protect thechild from harm.

(9) Which party is more likely to maintain a loving,stable, consistent and nurturing relationship with the childadequate for the child's emotional needs.

(10) Which party is more likely to attend to thedaily physical, emotional, developmental, educational andspecial needs of the child.

(11) The proximity of the residences of the parties.

(12) Each party's availability to care for the child or abilityto make appropriate child-care arrangements.

(13) The level of conflict between the parties and thewillingness and ability of the parties to cooperate with oneanother. A party's effort to protect a child from abuse byanother party is not evidence of unwillingness or inabilityto cooperate with that party.

(14) The history of drug or alcohol abuse of a party ormember of a party's household.

(15) The mental and physical condition of a party ormember of a party's household.

(16) Any other relevant factor.

23 Pa.C.S.A. § 5328(a). 4

Our decision here requires us to provide clarification on whena court is obligated to address all the best interest factorsunder 5328(a) of the Act. In construing a statute, we mustascertain the intent of the General Assembly. 1 Pa.C.S.A. §1921(a). The unambiguous terms of a statute are the clearestexpression of the legislature's intent. Id. § 1921(b). If theterms of a statute are ambiguous, we may resort to interpretiveaids, including legislative history, former statutes on the samesubject, and the consequences of a particular interpretation.Id. § 1921(c). We interpret words and phrases according tothe rules of grammar and according to their common andapproved usage. Id. § 1903. When parts of a statute related tothe same thing, we must construe those parts in pari materia.Id. § 1932.

[7] The Act requires a court to consider all of the §5328(a) best interest factors when “ordering any form of

custody.” 23 Pa.C.S.A. § 5328(a) (emphasis added).

Sections 5323(a) and (d) reinforce this mandate byrequiring a court to delineate the reasons for its decision whenmaking an award of custody either on the record or in a writtenopinion. Mere recitation of the statute and consideration of

the § 5328(a) factors en masse is insufficient. C.B. v.J.B., 65 A.3d 946, 950 (Pa.Super.2013). A trial court's failure

to place its reasoning regarding the § 5328(a) factors on

the record or in a written opinion is an error of law. J.R.M.,33 A.3d at 652. Accordingly, in C.B., when the trial court

merely stated that it had considered the § 5328(a) factors,we held that the trial court's on-the-record explanation was

insufficient under the statute. *402 C.B., 65 A.3d at950–51. Similarly, in M.P., we found error where the trial

court listed the § 5328(a) factors but failed to apply them.

M.P., 54 A.3d at 955–56.

We must construe § 5328(a) (requiring consideration of

the sixteen factors) and § 5323(a) and (d) (listing theforms of custody that a trial court may award) in pari materia,

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since they relate to the same subject. Furthermore, becausethe Act does not define “form of custody,” we must interpretthat phrase according to common and approved usage.

[8] In context, the common meaning of “form” is “a kind,type, or variety.” American Heritage Dictionary (5th ed.2014). Therefore, we interpret “form of custody,” to mean the

seven types of custody listed at 23 Pa.C.S.A. § 5323(a).

We hold that a trial court must apply the § 5328(a) factorsand issue a written explanation of its decision when it ordersany of the seven forms of custody provided for by the Act.

Not every decision by a trial court in a custody case, however,entails an award of a form of custody. Our recent decision

in M.O. v. J.T.R., 85 A.3d 1058 (Pa.Super.2014), isillustrative. In that case, the trial court decided a “discrete andnarrow issue ancillary to a materially unchallenged custodyarrangement,” i.e., whether Father needed to take time offfrom work when he had custody of the children over summer

vacation. Id. at 1059–60 (emphasis added). We held that

the trial court was not required to address the § 5328(a)factors. “Because the trial court did not make an award ofcustody, but merely modified a discrete custody-related issue,it was not bound to address the sixteen statutory factors in

determining the Children's best interest.” Id. at 1063. Thus,the discrete and ancillary issue in M.O. did not require thetrial court to order any form of custody. Therefore, thoughthe trial court was required to consider the children's best

interests, it did not need to specifically address all the §5328(a) best interest factors. Instead, we stated:

Many custody-related issues raised inmotions are similar to the one in thecase: a single discrete and narrow issueancillary to the award of custody. Itwould be burdensome for a trial courtto have to consider all sixteen factorsexplicitly on the record every timea litigant argues a motion seeking,for example, to change the custodyexchange location or to decide whethera child plays sports in one parent'smunicipality or the other's. Without adoubt, a trial court must consider achild's best interest in ruling upon such

motions. But our statutes requireneither a consideration of all sixteenfactors nor delineation of the court'srationale on the record unless theruling awards custody or modifiesan award of custody.

M.O., 85 A.3d at 1063 n. 4 (emphasis added).

Other of our decisions interpreting the new Act areinstructive, as well. In C.B., the trial court awarded primaryphysical custody of the children to their paternal uncle, whohad recently separated from the children's other guardian,

their paternal aunt. C.B., 65 A.3d at 948. In J.R.M., thetrial court entered an order establishing a legal and physical

custody regime for the parties. J.R.M., 33 A.3d at 649–50.In both cases, the trial court ordered a form of custody listed at§ 5323(a) of the Act. Therefore, the trial courts were required

to consider and apply all the § 5328(a) factors. C.B.,

65 A.3d at 949, J.R.M., 33 A.3d at 652; see also A.V. v.S.T., 87 A.3d 818, 824 (Pa.Super.2014) (“[A]s with any award

of custody, the court was required to apply the Section5328(a) *403 custody factors regarding the best interests ofChildren and to explain the reasons for its decision.”).

It also is true that resolution of an otherwise ancillary mattermay affect a form of custody and require consideration of

the § 5328(a) factors. For instance, the choice of a child'sschool may factor into a trial court's decision to award a formof custody when the trial court is addressing a request toestablish or change legal or physical custody in connectionwith the choice of school. One parent in a custody dispute mayargue that he or she is entitled to primary physical custodybecause his or her residence has much better schools. Onthe other hand, many times—like here—these items mayappear as independent, discrete issues advanced by motion orpetition that does not require a change in the form of custody.Although any decision requires consideration of the child'sbest interest, only the former situation requires consideration

and application of the § 5328(a) factors.

A reading of the § 5328(a) factors further supports ourinterpretation that all these factors only must be considered

when a “form of custody” is ordered. Most of the § 5328(a)

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factors are better suited to addressing the larger issue of theform of custody to be awarded, rather than considerationsbeneficial to resolving discrete and ancillary disputes relatingto custody. In the latter, the considerations that could affecta trial court's decision are myriad. Thus, it makes little sensefor a trial court to analyze each of the sixteen 5328(a) factorswhen arbitrating, for example, a dispute over a custody-exchange location; which youth sports the children shouldplay; or whether a parent should be required to have children's

toys, beds, or other things in his or her house. 5 Rather, when

read as a whole, it is apparent that the § 5328(a) factorswere designed to guide the best-interest analysis when a trialcourt is ordering which party has the right to a form ofcustody.

We emphasize that in all matters affecting custody, the child's

best interest is still paramount. See M.O., 85 A.3d at 1063(“However, under Section 5338, the trial court was requiredto determine that the modification that it did order was in the

Children's best interest.”). The § 5328(a) factors, however,are a means to that end, and represent a legislative frameworkfor determining a form of custody that is in a child's bestinterest. Even where a trial court need not consider and

address the § 5328(a) factors, it still must consider thechild's best interest in custody matters.

B

[9] In this case, the trial court acknowledged the §5328(a) factors, but it did not consider them when decidingthe legal custody issue—the place of child's schooling. Thefailure to address all factors under 5328(a) did not constitutereversible error, because the trial court was not required to

consider and apply all the § 5328(a) factors. In decidingthat Child should attend West Hills Primary School, the trialcourt did not order a form of custody. While the choice ofwhere a child will attend school is not trivial and certainly is amajor life decision, the court's decision here merely resolvedan impasse between the parties who shared the legal right tomake this decision. Stated another way, the trial court merelyarbitrated a dispute between Mother and Father regarding*404 schooling, instead of granting one of them the right to

make that decision. The trial court did not alter the custodyregime by allowing either Mother or Father the sole right tomake decisions regarding Child's schooling. Here, the trial

court did not change the form of legal custody. 6 Rather,it merely acted as an arbiter, and decided Child's place ofschooling because the parties could not agree on this issue.

We long have recognized that, when parties share legalcustody of a child, they may reach an impasse inmaking decisions for the child that implicate custody.When that happens, the parties turn to the trial court

to decide their impasse. See, e.g., Staub v. Staub,960 A.2d 848 (Pa.Super.2008) (deciding between public

and home schooling); Fox v. Garzilli, 875 A.2d 1104(Pa.Super.2005) (ordering that children would attend schoolin mother's school district); Dolan v. Dolan, 378 Pa.Super.321, 548 A.2d 632 (1988) (deciding between public andparochial school). This type of court intervention does notaffect the form of custody and hence, the 5328(a) best interestfactors do not all have to be considered.

C

[10] Next, Father contends that the trial court abused itsdiscretion in finding that Mother's place of schooling wasin Child's best interest. We do not agree. In making itsdecision, the trial court noted several factors that weighedin favor of attendance at West Hills Primary School. Fatherconceded that enrollment at Harvest Baptist Academy was tobe temporary. The trial court found attendance there wouldnot be in the best interest of Child, as it would require Child tochange schools and not be suited to maintaining consistencyin his life. Trial Court Opinion, 8/14/13, at 6. The trial courtalso found that Father's chief concern with Mother's schoolwas its distance from his home. Id. While the trial court wassympathetic to this concern, on balance it did not find this tobe weighty enough to warrant attendance at Harvest BaptistAcademy. Id. Finally, the trial court found no persuasiveevidence that Child would receive a substandard education atWest Hills Primary School. Id. On these findings, supportedby record evidence, we cannot find an abuse of discretion.

See, e.g., C.B., 65 A.3d at 956 (noting that we defer to thetrial court regarding the weight of the evidence). Therefore,we must affirm that portion of the trial court's order pertainingto Child's schooling.

IV

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We now turn to Father's contention that the trial court abusedits discretion in failing to enforce the informal change to thecustody schedule.

A

The trial court questioned whether it could address Father'srequest to modify *405 the custody schedule, since Fatherhad not presented it with a petition to modify custody.Instead, Father filed a petition for special relief. The rulesgoverning the practice and procedure in all actions for legaland physical custody of a minor child contemplate thatcommencement of a custody action begin with the filing ofa complaint. Pa.R.C.P. No. 1915.3. As we have stated, inawarding any form of custody, the court must address each

of the best interest custody factors under § 5328(a). Atany time after commencement of an action however, a courton application or its own, is empowered to order emergencyor interim special relief. Pa.R.C.P. Nos. 1915.4(e), 1915.13.Special relief may include an award of temporary legal orphysical custody. Pa.R.C.P. No. 1915.13. A court is giventhis authority so that it may address emergency situationsand to protect a child until a final hearing can be held and a

permanent custody order can be entered. Id.; 23 Pa.C.S.A.§ 5323(b) (allowing interim award of custody in the mannerprescribed by the Pennsylvania Rules of Civil Procedure

governing special relief); see also Choplosky v. Choplosky,

400 Pa.Super. 590, 584 A.2d 340 (1990) (citing Steele v.

Steele, 376 Pa.Super. 174, 545 A.2d 376 (1988)). 7 Where acourt temporarily modifies a custody order under the specialrelief provision of Rule 1915.13, its order may only serveas an interim or temporary measure until the parties canprepare to resolve more permanently the custody issue at

hand. Choplosky, 584 A.2d at 343.

Once a custody order is in place, both Section 5338 of theAct, 23 Pa.C.S.A. § 5338, and Pa.R.C.P. No. 1915.15, permit

a court, upon petition, to modify a custody order. 8 This Courthas held that the appropriate manner to bring about a changein custody is by the filing of a petition for modification, whichwould follow generally, the procedure under Pa.R.C.P. No.

1915.3. Choplosky, 584 A.2d at 342–43. A petition formodification must be filed in order for a court to review a case

for permanent modification of a custody order. Id. at 342

(citing Seger v. Seger, 377 Pa.Super. 391, 547 A.2d 424(1988)). Apart from these procedures authorized under theChild Custody Act and Rules, the filing of a proper petitionalso serves the important purpose of providing notice and anopportunity to be heard to satisfy the requirements of dueprocess attendant to custody proceedings. Id. Thus, while itis generally true efforts seeking to modify custody may befiled at any time, courts cannot allow parties to forgo thegeneral notice requirements which otherwise must be strictlyobserved. Id.

While it is the appropriate practice under the Act and the Rulesof Civil Procedure to file a pleading entitled a “petition tomodify custody” to seek modification of a custody order, thisCourt has held nonetheless, that if notice of the proceedingadequately advises a party that custody *406 will be at issue,a court may entertain the request to permanently modify acustody order after hearing in that proceeding. Guadagnino,646 A.2d at 1262. We therefore, held in Guadagnino that thecourt could properly consider a request to modify custodyin a proceeding to determine if a parent should be heldin contempt, so long as there was adequate notice that thecustody order would be challenged. Id. In that case, thepetition for contempt filed provided adequate notice thecustody order would be challenged. The trial court properlyconducted the hearing tailored to the issues at hand. Id.

Turning now to the instant case, Father initiated proceedingsbefore the trial court by the filing of a petition for specialrelief. While the principal focus of that petition concernedwhere Child would attend school, the petition also pledand requested as relief, that the trial court enforce theinformal change Father maintains was agreed to betweenthe parties that modified the January 8, 2010 custody order.Thus, while the pleading filed was entitled a “Petition forSpecial Relief,” thereby on its face suggesting that temporaryrelief was being requested, an examination of the pleadingreveals that the pleading was in fact one whereby Father wasseeking modification to the January 8, 2010 custody order byrequesting a change in legal and physical custody. Contrary toits belief, the trial court would not have abused its discretionby modifying the January 8, 2010 custody order, if it deemedthat in the best interest of Child, based upon the pleading filed,even though it was not entitled a “Petition for Modification.”Mother was provided adequate notice that modification of theJanuary 8, 2010 custody order was to be at issue at hearing.

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B

[11] Under the January 8, 2010 order, Mother had primaryphysical custody of Child, and Father had partial physicalcustody for six nights out of every two weeks. AroundSeptember 2012, the parties agreed to the informal change,under which they started to follow a 5–2–2–5 schedule. Theinformal change gave Father an extra night of custody everytwo weeks. He contended that the informal change was the“status quo,” see supra, note 2, and asked the trial court toformally ratify it as such.

Mother, for her part, argued that the informal change wastemporary. She contended that the parties were actuallyfollowing the schedule mandated by the January 8, 2010 orderat the time of the hearing in August 2013. Father agreedthat they had resumed the January 8, 2010 order's scheduleonce Child left preschool in May 2013. N.T. Special ReliefHearing, 8/2/13, at 10. The trial court agreed with Mother'sversion of the facts.

Regardless of which schedule the parties were following,Father's petition for special relief placed the issue of physicalcustody before the trial court. By asking the court to ratifythe informal change, Father was requesting a modificationof physical custody. This compelled the trial court to decidewhich physical custody arrangement was in Child's bestinterest, squarely implicating an award of a form of custody

under 23 Pa.C.S.A. § 5323(a). Therefore, the trial court

was required to consider all the § 5328(a) best interestfactors. Even if the trial court only reaffirmed its prior order,it nonetheless was ruling upon a request to change the formof physical custody and, therefore, bound to decide whetherthe prior order remained in Child's best interest.

Here, while the trial court found no evidence that the informalchange was in Child's best interest, it did not address all the

§ 5328(a) best interest factors. Its *407 failure to do

so constitutes an abuse of discretion. See, e.g., J.R.M.,33 A.3d at 652. Therefore, we are constrained to vacate theportion of the trial court's order pertaining to physical custody,and remand for preparation of an opinion that addresses all

the § 5328(a) best interest factors.

In light of the above, we reject Mother's contention that the

trial court properly considered all of the § 5328(a) factorsbased upon the trial court summarily stating it considered allfactors relevant to the issues before the court. As noted, a

court cannot merely recite the § 5328(a) factors and state it

considered them generally. C.B., 65 A.3d at 950–51. Ourdecisions require consideration of each factor as each mayaffect the custody to be awarded. Id.

For the foregoing reasons, we affirm the portion of thetrial court's order pertaining to Child's schooling. We vacatethe portion of the order concerning the change to physicalcustody, and remand for preparation of an opinion and order

specifically addressing all the factors under 23 Pa.C.S.A.

§ 5328(a) on the issue of physical custody. 9 The trial courtmust issue its opinion and order within 30 days of the date onwhich the certified record is returned.

Order affirmed in part and vacated in part. Case remandedwith instructions. Jurisdiction relinquished.

Judgment Entered.

All Citations

96 A.3d 396, 2014 PA Super 146

Footnotes1 The facts are taken from the Trial Court Opinion, 8/14/13, at 1–4, unless another source is cited.

2 Father refers to this in his questions for review and brief as the “status quo.” The trial court found that the January 8,2010 custody order was the status quo between the parties.

3 A court may also award interim custody to a party with standing in response to a petition for special relief. 23 Pa.C.S.A.§ 5323(b).

4 The General Assembly recently added a 17th factor. Act of Dec. 18, 2013, P.L. 1167, No. 107 § 1. The effective date ofthe amendment is January 1, 2014, so it does not apply here.

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5 Many times in custody disputes, the parties ask the trial court to decide minor issues. We recognize that the state cannotraise children and that our courts are ill equipped to decide such issues. Nothing in our opinion should be read asencouraging over-intervention by the court into disputes that should and can be decided by a child's guardians.

6 At the hearing, Father initially requested that he be named “primary legal guardian” (i.e., sole legal custody) to selectChild's school. N.T. Special Relief Hearing, 8/2/13, at 5. However, as the trial court noted, Father had not requested thatrelief in his petition. Id. Father later only requested that the court decide the school issue for the parties. Id. at 76–77(“And we're asking that the [c]ourt ... order that [Child] go to the Harvest Baptist School for kindergarten.”).We recognize that, when a trial court makes a ruling concerning which school a child will attend, it also may be requiredto modify the parties' physical custody arrangement. This is particularly so when the parties live far apart, making itimpractical for one parent to transport the child to school. In those cases, because a change in physical custody would

occur, the § 5328(a) factors would all need to be addressed.

7 Although Choplosky, Steele, and Guadagnino v. Montie, 435 Pa.Super. 603, 646 A.2d 1257 (1994), discussed infra, weredecided prior to the current Act, effective January 24, 2011, and the current version of Rule 1915.13, for purposes of theissues resolved in this appeal, these cases in material respect are still instructive.

8 Father's reliance upon Masser v. Miller, 913 A.2d 912 (Pa.Super.2006), for the proposition that a court may modify custodyeven when there is no pending request before the court is inapposite. At the time Masser was decided, the Domestic

Relations Code expressly provided that a court could sua sponte modify an existing custody order. 23 Pa.C.S.A. §§

5304, 5310 (repealed 2011). The present Act has no similar provision. Instead, the current Act provides that a courtmay modify custody only upon the filing of a petition. 23 Pa.C.S.A. § 5338.

9 Father cites V.B. v. J.E.B., 55 A.3d 1193 (Pa.Super.2012), for the proposition that we may reverse and enter reliefon the merits. V.B. is clearly distinguishable. In V.B., this Court found that the trial court clearly abused its discretion infashioning its custody award and that the record was sufficiently developed to permit this Court to substitute its judgmentfor that of the trial court. These conditions clearly do not present in this case.

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S.T. v. R.W., 192 A.3d 1155 (2018)2018 PA Super 192

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192 A.3d 1155Superior Court of Pennsylvania.

S.T., Appellantv.

R.W.

No. 1748 MDA 2017|

Submitted March 26, 2018|

Filed June 29, 2018

SynopsisBackground: Incarcerated mother filed petition formodification seeking supervised physical custody of child inorder to have telephone communication and correspondence.The Court of Common Pleas, Schuylkill County, CivilDivision, No. S-1652-2008, John E. Domalakes, J., deniedmother's motion for telephone contact and awarded sole legalcustody to father. Mother appealed.

Holdings: The Superior Court, No. 1748 MDA 2017,Kunselman, J., held that:

[1] trial court committed reversible error in failing to providemother with notice of her right to request that she be presentat hearing;

[2] trial court's procedure afforded mother no meaningfulopportunity to advocate for herself during custody hearing;

[3] trial court erroneously determined extent of mother'ssupervised physical custody without proper consideration ofall relevant factors; and

[4] trial court erred in awarding father with sole legal custody.

Vacated and remanded.

Procedural Posture(s): On Appeal; Motion to Modify Orderor Judgment.

West Headnotes (22)

[1] Child CustodyReview

Child CustodyDiscretion

In reviewing a child custody order, the SuperiorCourt's scope is of the broadest type and standardis abuse of discretion.

[2] Child CustodyQuestions of Fact and Findings of Court

In child custody cases, the Superior Courtmust accept findings of the trial court that aresupported by competent evidence of record, asits role does not include making independentfactual determinations; however, it is not boundby the trial court's deductions or inferences fromits factual findings.

2 Cases that cite this headnote

[3] Child CustodyQuestions considered

Child CustodyQuestions of Fact and Findings of Court

In child custody case, the test is whether the trialcourt's conclusions are unreasonable as shown bythe evidence of record and the Superior Courtmay reject the conclusions of the trial courtonly if they involve an error of law or areunreasonable in light of the sustainable findingsof the trial court.

3 Cases that cite this headnote

[4] Appeal and ErrorConstitutional Rights, Civil Rights, and

Discrimination in General

A question regarding whether a due processviolation occurred is a question of law for whichthe standard of review is de novo and the scopeof review is plenary. U.S. Const. Amend. 14.

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2 Cases that cite this headnote

[5] Child CustodyPresence of parent or custodian

Constitutional LawChild custody, visitation, and support

PrisonsPresence or appearance

WitnessesHabeas corpus ad testificandum

Trial court's failure to provide incarceratedmother with notice of her right to requestthat she be present at custody hearing,through writ of habeas corpus ad testificandum,violated due process, in proceeding on mother'spetition for modification seeking supervisedphysical custody in order to have telephonecommunication with child. U.S. Const. Amend.14.

[6] Child CustodyHearing

In custody hearings, parents have at stakefundamental rights: namely, the right to makedecisions concerning the care, custody, andcontrol of their child.

1 Cases that cite this headnote

[7] Constitutional LawNotice and Hearing

Constitutional LawChild custody, visitation, and support

Formal notice and an opportunity to be heard arefundamental components of due process whena person may be deprived in a legal proceedingof a liberty interest, such as physical freedom,or a parent's custody of her child. U.S. Const.Amends. 5, 14.

[8] Constitutional LawNotice and Hearing

Constitutional LawImpartiality

Procedural due process requires, at its core,adequate notice, opportunity to be heard, andthe chance to defend oneself before a fair andimpartial tribunal having jurisdiction over thecase. U.S. Const. Amends. 5, 14.

4 Cases that cite this headnote

[9] Constitutional LawFactors considered;  flexibility and

balancing

Due process is flexible and calls for suchprocedural protections as the situation demands.U.S. Const. Amends. 5, 14.

1 Cases that cite this headnote

[10] Child CustodyModification

Due process violation in trial court's failure toprovide incarcerated mother with notice of herright to request that she be present at hearingwas reversible error, in proceeding on mother'spetition for modification seeking supervisedphysical custody in order to have telephonecommunication with child, where mother wasnever told of her legal right to seek writ to allowpresence at hearing, and mother was not providedany meaningful opportunity to be heard. U.S.Const. Amend. 14.

[11] Constitutional LawNotice and Hearing

Both notice and an opportunity to be heard, asrequired by due process clause, must be affordedat a meaningful time in a meaningful manner.U.S. Const. Amend. 14.

[12] Constitutional LawNotice

Notice, as required by due process clause,ensures that each party is provided adequateopportunity to prepare and thereafter advocate itsposition, ultimately exposing all relevant factorsfrom which the finder of fact may make aninformed judgment. U.S. Const. Amend. 14.

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[13] Constitutional LawNotice and Hearing

Constitutional LawImpartiality

Procedural due process requires not onlyadequate notice and an opportunity to be heard,but also the chance to defend oneself before a fairand impartial tribunal having jurisdiction overthe case. U.S. Const. Amend. 14.

4 Cases that cite this headnote

[14] Constitutional LawChild custody, visitation, and support

Due process mandates that an incarcerated parenthave a meaningful opportunity to expose all therelevant factors in a custody analysis. U.S. Const.Amend. 14.

[15] Child CustodyWeight and Sufficiency

Incarcerated parents do not need to make aprima facie showing that contact with the childis feasible based on custody factors relating tologistics.

[16] Child CustodyHearing and Determination

Child CustodyPresence of parent or custodian

Constitutional LawChild custody, visitation, and support

PrisonsPresence or appearance

Trial court's procedure at custody hearing,amounting to essentially an ex parte hearing withfather and no appearance by incarcerated mother,afforded mother no meaningful opportunityto advocate for herself and thus violatedmother's due process rights, in proceedingson mother's petition for modification seekingsupervised physical custody in order to havetelephone communications with child; mother

could not respond, cross-examine father'spoints, call witnesses, introduce evidence, ormake objections, as mother was not givenan opportunity to counter father's assertionregarding the irregularities of telephone access inprison, and describe the visitation procedures andconditions in her facility. U.S. Const. Amends. 5,14.

[17] Child CustodyPleading

Incarcerated mother's motion for contact viatelephone and correspondence was treated asa petition for modification seeking supervisedphysical custody of child; parents had acustody order prior to mother's incarceration,her incarceration caused a de facto modificationof her physical custody, and mother sought tomodify the prior custody order so as to align itwith the reality that she was incarcerated so thatshe could interact with her child through writtencorrespondence and telephone communications.

23 Pa. Cons. Stat. Ann. § 5322(b).

4 Cases that cite this headnote

[18] Child CustodyGrounds and Factors

Child CustodyPresence of child;  in camera examination

or interview

Trial court improperly failed to consider allrelevant factors unique to incarceration caseswhen ruling on incarcerated mother's petitionfor custody modification, seeking supervisedphysical custody of child to allow contact viatelephone and correspondence; the court failedto consider the emotional or physical effectthe requested telephone contact would haveon the child, whether mother had exhibited agenuine interest in child, and whether reasonablecontacts were maintained in the past, and the trialcourt failed to interview the child to considerher preference in communicating with motherthrough telephone conversations and written

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correspondence. 23 Pa. Cons. Stat. Ann. §5328(a).

4 Cases that cite this headnote

[19] Child CustodyChild's preference of custodian

Although the discretion remains exclusivelywith the trial court in considering factorswhen awarding custody, a child's well-reasonedpreference, based on her age and judgment, couldcarry more weight in an incarceration case than

it might otherwise would have. 23 Pa. Cons.Stat. Ann. § 5328(a)(7).

1 Cases that cite this headnote

[20] Child CustodyModification

If a party requests modification of any form ofcustody, the decision of whether to modify eitherlegal custody or physical custody should be made

on a case by case basis. 23 Pa. Cons. Stat.Ann. § 5328(a).

1 Cases that cite this headnote

[21] Child CustodyCommission of crime

Legal custody rights of incarcerated parents donot vanish upon their incarceration.

[22] Child CustodyGrounds and Factors

Child CustodyHearing and Determination

Trial court erred in awarding father with solelegal custody of child in custody proceedingbrought by incarcerated mother in petition formodification of supervised physical custody inattempt to obtain telephone communication andcorrespondence; trial court failed to apply thecurrent custody law analysis for physical andlegal custody or consider the unique situationspecific to prison incarceration cases, and mother

did not have notice or an opportunity to be heard

in the legal custody proceeding. 23 Pa. Cons.Stat. Ann. § 5328(a).

3 Cases that cite this headnote

*1158 Appeal from the Order entered October 10, 2017,in the Court of Common Pleas of Schuylkill County, CivilDivision at No(s): S–1652–2008. John E. Domalakes, J.

Attorneys and Law Firms

S.T., appellant, pro se.

Lori A. S. Guzick, Pottsville, for appellee.

BEFORE: GANTMAN, P.J., OTT, J., and KUNSELMAN, J.

Opinion

OPINION BY KUNSELMAN, J.:

In this matter, we decide whether the trial court affordedsufficient due process to an incarcerated parent who seekscontact with her child. In reaching our conclusion, wedetermine what forms of custody incarcerated parents retain

under the 2011 revisions to Pennsylvania Custody Law. 1 Andfinally, we decide whether the trial court properly analyzedthe statutory factors when considering whether to allow anincarcerated parent to retain any form of physical or legalcustody.

An incarcerated Mother, S.T., appeals the order denying herrequest for telephone communication with the parties' nine-year-old daughter. The trial court conducted an ex partecustody hearing with Father, R.W., without affording Mothereither notice that she could request to be present, or ameaningful opportunity to be heard. The trial court thenmisapplied the current Custody Law. We hold that the court'sprocedure constituted a violation of Mother's rights to dueprocess. We vacate the order and remand for a new hearing.

The pertinent facts are these: The parties are parents to a nine-year-old daughter. *1159 Father resides with the daughter inSchuylkill County where he is a corrections officer at StateCorrections Institute (“SCI”) Mahanoy. At the time of thehearing, Mother was incarcerated approximately 90 minutes

away at SCI Muncy in Lycoming County. 2 She is a former

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physician who is serving a prison term of 5 to 10 years for

crimes relating to her practice. 3

Although the exact dates remain somewhat disputed, it isuncontested that Mother had not seen, nor spoken with herdaughter since before she began serving her sentence inMarch 2014. See N.T., 8/10/17, at 11–12; see also Mother'sBrief, at 6. Lately, however, Father testified that he hasencouraged and facilitated written correspondence betweenthe child and Mother. Id., at 13. Mother's earliest possiblerelease is March 2019.

In August 2017, Mother filed a “Motion for Contactvia Telephone and Correspondence.” Upon receiving thispleading, the trial court entered an order scheduling a hearingon the matter. The order notified Mother of the time, placeand location of the hearing, but limited Mother's participationin the hearing to a mere written statement. The court orderedMother to provide in a written statement the followinginformation: a) her place of incarceration; b) her crimesand their circumstances; c) date of incarceration; d) thesentencing orders; e) the earliest possible date of her release;f) her requested involvement regarding frequency, timesand circumstances of her requested telephone contact andcorrespondence; g) her assertions as to how her proposedcontact will serve the best interests of the child; and h) anyother pertinent material Mother feels will support her request.

Critically, the trial court did not notify Mother that she hada right to request to be present at the hearing. In the interim,the court sua sponte suspended Mother's physical custody.The court made no arrangements for her transportation tothe hearing, nor for her participation by telephone or videoconference. Mother complied with the court's order, andsubmitted a pre-trial letter with the information the courtrequested.

On October 10, 2017, the court held what can only becalled an ex parte hearing, which lasted a matter of minutesjudging by the length of the certified transcript. Father'scounsel began with a brief summary before eliciting Father'stestimony through direct examination. The court engaged in abrief interrogation of Father before the matter was adjourned.Neither Father's counsel nor the court addressed Mother'sstatement except to acknowledge its existence. The court didnot interview the child.

On the same day, the court issued a brief opinion and

order. The court cited to both repealed custody statutes 4 and

corresponding case law. See Trial Court Opinion (“T.C.O.”),10/10/17, at 2–3. The court also included an analysis ofthe current custody *1160 statute's 16 enumerated factors.

See 23 Pa.C.S.A. § 5328(a). Although neither parentsought to modify legal custody, the court awarded sole legalcustody to Father after it determined that Mother was “notable to participate effectively in parenting decisions.” SeeT.C.O., at 3. The court denied Mother's request for telephonecontact based on Father's testimony that telephone access forprisoners is irregular and that the child would become upsetif Mother failed to call at a prearranged time. Although itdenied Mother's request for telephone communication, thetrial court allowed Mother to continue to send letters to theparties' daughter.

On appeal, Mother presents this question, which we restateverbatim:

Did the pro se Appellant [Mother]suffer extreme prejudice through thedeprivation of due process rightswhen she was prevented from fullyparticipating in a custody hearingwhere [the trial court] ordered herparticipation to be limited to enteringa pre-hearing written statement tosupport her “Motion for Contact” withminor child, but permitted [Father]to participate with testimony, whichresulted in an unfair and unjust rulingand a loss of parental rights?

Mother's Brief, at 4.

Like Father, we construe Mother's presented question astwo discrete issues. See Father's Brief, at 7. First, Motherchallenges the trial court's procedure and substantive decisionthat resulted in the denial of her request for telephone contact.Second, Mother challenges the procedure and substantive

decision that resulted in her loss of shared legal custody. 5

[1] [2] [3] Our scope and standard of review of childcustody orders are settled:

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In reviewing a custody order, ourscope is of the broadest type andour standard is abuse of discretion.We must accept findings of thetrial court that are supported bycompetent evidence of record, asour role does not include makingindependent factual determinations. Inaddition, with regard to issues ofcredibility and weight of the evidence,we must defer to the presiding trialjudge who viewed and assessed thewitnesses first-hand. However, weare not bound by the trial court'sdeductions or inferences from itsfactual findings. Ultimately, the test iswhether the trial court's conclusionsare unreasonable as shown by theevidence of record. We may reject theconclusions of the trial court only ifthey involve an error of law, or areunreasonable in light of the sustainablefindings of the trial court.

C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012)(citation omitted).

[4] Our review differs when an appellant presents a dueprocess challenge:

A question regarding whether adue process violation occurred is aquestion of law for which the standardof review is de novo and the scope ofreview is plenary.

Commonwealth v. Tejada, 161 A.3d 313 (Pa. Super. 2017)(quoting Commonwealth v. Smith, 635 Pa. 38, 131 A.3d 467,472 (2015).

I.

[5] [6] In custody hearings, parents have at stakefundamental rights: namely, the right to make decisionsconcerning the care, custody, and control of their child. See

Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147L.Ed.2d 49 (2000); see also U.S.C.A. Const. Amends. 5, 14;

and see *1161 also generally D.P. v. G.J.P., 636 Pa. 574,146 A.3d 204 (2016).

[7] [8] [9] Due process must be afforded to parents tosafeguard these constitutional rights. “Formal notice and anopportunity to be heard are fundamental components of dueprocess when a person may be deprived in a legal proceedingof a liberty interest, such as physical freedom, or a parent'scustody of her child.” J.M. v. K.W., 164 A.3d 1260, 1268

(Pa. Super. 2017) (en banc ) (quoting Everett v. Parker,889 A.2d 578, 580 (Pa. Super. 2005) (emphasis added). Itis well settled that “procedural due process requires, at itscore, adequate notice, opportunity to be heard, and the chanceto defend oneself before a fair and impartial tribunal having

jurisdiction over the case.” Id., at n. 5 (citing Everett v.Parker, 889 A.2d 578, 580 (Pa. Super. 2005); see also Garrv. Peters, 773 A.2d 183, 191 (Pa. Super. 2001). “Due processis flexible and calls for such procedural protections as thesituation demands.” See, e.g., In re Adoption of Dale A.,II, 453 Pa.Super. 106, 683 A.2d 297, 300 (1996) (citationomitted).

Having established that both formal notice and an opportunityto be heard are due protections, we decide what the situationdemands when a parent is incarcerated. In Vanaman v.Cowgill, 363 Pa.Super. 602, 526 A.2d 1226 (1987), we foundthat the trial court deprived an incarcerated father of his dueprocess rights in a custody hearing initiated by the mother.The father could not attend the hearing while in prison, butthe trial court held an ex parte hearing anyway. The resultingcustody order similarly denied the incarcerated parent anyvisitation. In defending its decision to proceed with thehearing, the trial court reasoned that father, upon receivingnotice of the hearing date, had failed to explain or excuse theabsence of counsel or to request a continuance. On appeal,we stated that the trial court should have done more, and weexplained why:

This principle, while perfectly sound in regard to persons atliberty to protect their own interests, requires considerablerevision in the context of this and similar cases. The factof [a party's] incarceration places an obligation on the

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court to safeguard his due process rights, a responsibilityhere ignored.

Although we have uncovered neither procedural rule norappellate authority which speaks directly to his issue, lowercourts have in the past concluded that not only notice ofa (civil) hearing is due an imprisoned person, but alsospecific advisement of his right to attend. See Jones v.Jones, 1 Pa. D. & C.3d 401 (1974) (citations omitted)[ (emphasis added) ]. The court in Jones prescribed amethod of implementing exercise of this right based on theissuance of a writ of habeas corpus ad testificandum. [...].

The steps listed in Jones, although composed in referenceto a divorce hearing, are equally applicable here: where therespondent/defendant in an action is incarcerated, noticemust contain, as well as the usual particulars of the hearing,the statement that respondent/defendant may, if he wishesto attend, request the court by means of a habeas petitionand writ to make arrangements for transportation to andpresence at the hearing. Such a request must be made within10 days prior to the scheduled date.

* * *

In situations such as the one before us, not onlyare the rights of the prisoner/respondent vulnerable toinfringement, but those of the child as well since adetermination of the child's best interests must have itsbasis in information. [The father's] rights were clearlyignored; *1162 whether his child's have been violated aswell remains yet to be seen.

Vanaman, 526 A.2d at 1227 (emphasis added). In that case,we remanded for a new custody hearing.

In Sullivan v. Shaw, 437 Pa.Super. 534, 650 A.2d 882,884 (1994), we stated more succinctly that “[i]ncarceratedprisoners who petition the court for visitation rights areentitled to a hearing, to notice of this hearing, and to noticeof their right to request that they be present at the hearing, by

means of a writ of habeas corpus ad testificandum.” Id.(Citing Vanaman v. Cowgill, 363 Pa.Super. 602, 526 A.2d1226 (1987) ). This holding has since been codified in both thePennsylvania Rules of Civil Procedure and in the Schuylkill

County Local Rules of Procedure. 6

In the case at bar, the trial court set a hearing on the issueand made Mother aware of the date, time and location of thehearing. However, the trial court did not provide Mother with

notice of her right to request that she be present at the hearingvia a writ of habeas corpus ad testificandum. The trial court'sfailure to provide Mother with this notice is reversible error.

[10] We recognize that a trial court may grant or deny awrit for habeas corpus ad testifcandum in light of the factorsset forth in Salemo v. Salemo, 381 Pa.Super. 632, 554 A.2d563 (1989). See Pa.R.C.P. 1930.4. But whether a writ wasappropriate in this case is not an issue. Mother was nevertold of her legal right to seek such a writ. Additionally, as wediscuss below, the trial court also failed to provide Motherwith a meaningful opportunity to be heard.

II.

“Due process is flexible and calls for such procedural

protections as the situation demands.” Sullivan, 650

A.2d at 884 (citing Mathews v. Eldridge, 424 U.S. 319,

334, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). “ Mathewsallows the government to tailor the amount of proceduralprotection to the situation by balancing the marginal valueof additional protections against the marginal costs suchadditional protections would impose on the government.”

Id. (Emphasis added).

In Sullivan, a father who was incarcerated near Pittsburghsought visitation with his daughter who lived in Philadelphia.The trial court properly provided him a hearing, notice ofthe hearing, and notice of his right to request be at the

hearing. Id. When authorities failed to produce the father,the trial court conducted the hearing *1163 without him.

Id. Although we found the court's decision erroneous, wearticulated that incarcerated parents did not have an absolute

right to be physically present at the hearing. Id. In otherwords, the court does not have to grant to writ of habeascorpus ad testificandum, but an incarcerated parent must stillbe provided an opportunity to be heard.

In 1994, we posited that transporting an incarcerated parentacross the state imposed a considerable burden upon theCommonwealth. One solution, we surmised at that time, wasto allow the incarcerated parent to file “an informal briefwith the trial court” where the prisoner-parent could offer

her “solution to the problems of visitation.” Id., at 885.

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Then if the prisoner-parent could offer no reasonable meansof overcoming the “obstacles of visitation,” we reasoned

that the trial could dismiss the petition. Id. We concludedthat “allowing the trial court to make such a preliminarydetermination upon the prisoner's written submissions bestconserved the Commonwealth's resources without increasing

the risk of erroneous deprivation.” Id. The “informal

brief” in Sullivan is substantially the same as the “writtenstatement” the trial court allowed in the instant case.

But times have changed. Sullivan, a case nearly a quarter-century old, predates revisions to both the rules of civilprocedure and the substantive custody law. Now we mustrecalibrate the due process balancing and refit the tailoringof procedural protections. Two and a half decades and

a technological revolution after we decided Sullivan,communication via telephone and video conferencing isconsiderably less expensive and far more readily accessible.The choice is no longer between physical transportation andexorbitant long distance rates across the state. We cannotsay, with current technology, that due process is satisfiedby allowing an “informal brief” or “written statement” froman incarcerated parent. In incarceration cases, telephone orvideo testimony should now be the practice standard, not theexception.

Notably, Sullivan was decided one month before theadoption of Pennsylvania Rule of Civil Procedure 1930.3.Rule 1930.3 gives courts a means to accommodate any partyor witness who may not be available to attend a hearing inperson. The rule provides: “With the approval of the courtupon good cause shown, a party or witness may be deposedor testify by telephone, audiovisual or other electronic meansat a designated location in all domestic relations matters.”Pa.R.C.P. 1930.3. Neither telephonic, nor audiovisual, norelectronic communication was even mentioned by the court

in Sullivan. Rule 1930.3 now provides courts with apreviously unavailable option.

The outdated solution in Sullivan is further magnifiedby the changes our legislature made to the Custody Law.

The “informal brief” allowed in Sullivan is all the moreproblematic because it intertwined proper procedural dueprocess considerations with the repealed substantive custody

considerations. Sullivan, 650 A.2d at 885.

The informal pre-trial brief sought to kill two birds withone stone: procedural matters and substantive matters.Procedurally speaking, the brief satisfied the due processbalancing because it provided the incarcerated parent withthe opportunity to be heard while simultaneously eliminatingtransportation costs—as we noted directly above, thoseburdens on the Commonwealth have now been virtuallynegated. Substantively speaking, the brief outlined thereasons why the obstacle of incarceration could be overcome(i.e., why visitation is in the child's best interests). In otherwords, the “informal brief solution” *1164 imposed on apetitioning incarcerated parent the burden to make a primafacie showing that visitation would be feasible and in thechild's best interests before the parent was entitled to a fullcustody hearing. Whatever the statutory basis was for thisholding—presumably § 5302 (“Visitation”)—that basis hasbeen repealed by our legislature. Nothing in our redraftedCustody Law allows for this procedure.

[11] [12] [13] An “informal brief” or “written statement”submitted prior to the trial cannot possibly equate ameaningful opportunity to be heard under the current state ofour substantive and procedural laws.

Both notice and an opportunity tobe heard must be afforded at ameaningful time in a meaningfulmanner. As previous panels haveexplained: notice in our adversarialprocess, ensures that each partyis provided adequate opportunityto prepare and thereafter advocateits position, ultimately exposing allrelevant factors from which thefinder of fact may make an informedjudgment.

Everett v. Parker, 889 A.2d 578, 580 (Pa. Super. 2005)(internal citations and quotation marks omitted) (emphasisadded). Recently, we confirmed procedural due processrequires not only adequate notice and an opportunity to beheard, but also “the chance to defend oneself before a fair andimpartial tribunal having jurisdiction over the case.’ ” J.M. v.K.W., 164 A.3d 1260, n. 5 (Pa. Super. 2017) (en banc ) (citing

Everett, 889 A.2d at 580) (emphasis added).

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[14] [15] Due process mandates that an incarcerated parenthave a meaningful opportunity to expose all the relevantfactors in a custody analysis. Under the revised CustodyLaw, incarcerated parents do not need to make a prima facieshowing that contact with the child is feasible based onthose custody factors relating to logistics. Parties cannot fullyaddress all the relevant factors if trial courts preliminarilydisqualify them on certain factors before a hearing evenoccurs. Additionally, parties cannot expose all the relevantfactors if they cannot advocate for themselves in real time,i.e., cross-examine witnesses of the other party and respondto arguments.

[16] In the instant matter, the trial court's procedure affordedMother no meaningful opportunity to advocate for herselfduring the hearing. She could not respond, nor cross-examineFather's points. She could not call witnesses, nor introduceevidence. She could not make objections.

For illustration, the trial court accepted all of Father'stestimony regarding his employment experience withprisoner visitation at SCI Mahanoy—namely its unsavorycharacteristics and the irregularity of telephone access.Because of the court's limiting order, Mother did not havean opportunity to counter Father's assertions and describethe visitation procedures and conditions at her facility. Wecannot say the defect lies with trial court's scheduling order,which outlined for Mother what information she shouldsubmit to the court. Nor can we blame Mother for a writtenstatement lacking in this detail. No matter how specificMother made—or could have made—her pre-trial writtenstatement, she could never fully defend her position if Fatheropposed it. Moreover, she could never fully advocate for herposition if she could not oppose Father's. But now that anincarcerated parent has the ability to advocate in real time, ata comparatively minimal cost on the courts, we conclude thatthe same is necessary to guarantee a meaningful opportunityto be heard.

We recognize that our decision may involve practical andlogistical concerns. For example, a prisoner's appearance maybe delayed or cut short due to the availability of prison staffor equipment—though we note that our courts are alreadymaking *1165 these accommodations for prisoners incriminal and juvenile proceedings. Whatever inconveniencethis decision may cause, it is negligible compared to thelogistical burdens the trial courts faced in the time of

Sullivan.

III.

The changes in our substantive custody laws mandate thatan incarcerated parent be given more say than a letter to the

court. Unlike when we decided Sullivan, today we do notconsider, as a threshold question, the vague notion whethervisitation with an incarcerated parent would be “impractical”

or in the child's “best interests.” See Sullivan, 650 A.2dat 885.

Instead, the current Custody Law requires a court to considera specific list of 16 factors when “ordering any form

of custody.” S.W.D. v. S.A.R., 96 A.3d 396, 401 (Pa.

Super 2014) (emphasis added); see also 23 Pa.C.S.A. §5328(a). We have interpreted “form of custody” to mean the

seven types of custody listed at 23 Pa.C.S.A. § 5323(a):(1) shared physical custody; (2) primary physical custody;(3) partial physical custody; (4) sole physical custody; (5)supervised physical custody; (6) shared legal custody; and (7)

sole legal custody. Id. at 402; see also 23 Pa.C.S.A. §5323.

[17] Our Custody Law no longer provides a statutory basis

to seek “visitation.” 7 We must treat Mother's “Motion forContact via Telephone and Correspondence” as a petition formodification seeking supervised physical custody.

First, we note that custody courts are flexible and treat certainpetitions (particularly pro se petitions and petitions for specialrelief) as modification petitions even though the petitionsdo not strictly comply with Pa.R.C.P. 1915.15 (relating toprocedure to modify custody). Such is the case here.

In this case, the parents had a custody order prior toMother's incarceration. Her incarceration caused a de factomodification of her physical custody. She seeks to modifythe prior custody order so as to align it with the reality thatshe is now incarcerated. In this respect, Mother's petition isno different than a typical modification petition. A parentoften petitions for modification only to formalize in a courtorder the reality of the current custody arrangement. Thepetitioning parent argues that the operating custody order nolonger reflects the status quo and seeks to protect that statusquo with all the benefits that come with a court order. Mother,

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seeking contact with her daughter, similarly seeks to have anew custody order meet the realities of the parties' currentliving situation. The difference between Mother and a typicalparent seeking modification is the availability of remedies.

Second, we conclude that the type of custody Mother seeksin this case fits the definition set forth in the Custody Law

for “supervised physical custody.” 23 Pa.C.S.A. § 5322(b). This term is statutorily defined as: “Custodial time duringwhich an agency or an adult designated by the court or agreedupon by the parties monitors the interaction between the childand the individual with those rights.” Id. (Emphasis added).Thus, incarcerated parents who seek some form of contactwith their children—whether it be a request that the childrenvisit them or otherwise—are seeking an award of “supervised

physical custody” as defined under § 5323. 8 In this case,*1166 Mother seeks written correspondence and telephone

communication. She wants to interact with her daughter.Indeed, the trial court's custody order even authorized Fatherto screen Mother's letters to their daughter.

We observe that our legislature surely anticipated custodypetitions of incarcerated parents when it included § 5329(b)in the current Custody Law. This provision provides: “Nocourt shall award custody, partial custody or supervisedphysical custody to a parent who has been convicted ofmurder under 18 Pa.C.S. § 2502(a) of the other parent ofthe child who is subject of the order unless the child is

of suitable age and consents to the order.” 23 Pa.C.S.A.§ 5329(b) (emphasis added). This provision must apply inboth situations where the parent is presently incarcerated, aswell as those extraordinarily rare situations where a parent,convicted of murdering the other parent, is released during thechild's minority. Naturally, the provision is silent to whetherthe convicted parent can obtain visitation of the child, becausevisitation is no longer an available remedy anywhere in ourcustody law.

Having established that incarcerated parents seeking contactwith their children are seeking “a form of custody,” i.e.,supervised physical custody via either an original complaintor a modification petition, the custody court must consider

the custody factors under § 5328(a) when deciding theseprison cases.

Proper procedure mandates all custody requests be assessedunder the current Custody Law's enumerated factors. Webelieve this method best fulfills the statutory mandate as well

as best protects the fundamental right to parent one's child.Mother's request is no different.

Section 5328(a) provides: “In ordering any form ofcustody, the court shall determine the best interest of thechild by considering all relevant factors, giving weightedconsideration to those factors which affect the safety of

the child, including [Factors (1)–(15) ] 9 and (16) Any

other relevant factor.” 23 Pa.C.S.A. § 5328(a) (emphasisadded). In its wisdom, our legislature *1167 left room for“any other relevant factor,” recognizing that certain situationswould require consideration of additional information uniqueto the parties. Recently, we noted several relevant factors thatcourts employ in cases with an incarcerated parent.

In M.G. v. L.D., 155 A.3d 1083, 1093 (Pa. Super. 2017), wefound the trial court should have considered factors unique to

prison cases which were previously delineated in Etter v.Rose, 454 Pa.Super. 138, 684 A.2d 1092, 1093 (1996).”

[I]n Etter v. Rose, the Superior Court recognized someof the factors to be considered in deciding [custody cases]where the parent is incarcerated:

(1) age of the child;

(2) distance and hardship to the child in traveling to thevisitation site;

(3) the type of supervision at the visit;

(4) identification of the person(s) transporting the child andby what means;

(5) the effect on the child both physically and emotionally;

(6) whether the parent has and does exhibit a genuineinterest in the child; and

(7) whether reasonable contacts were maintained in thepast.

M.G. v. L.D., 155 A.3d at 1094 (quoting D.R.C. v. J.A.Z.,

612 Pa. 519, 31 A.3d 677, 687 (2011) ). 10 We also noted thatour Supreme Court included another relevant consideration,namely:

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(8) the nature of the criminalconduct that culminated in the parent'sincarceration, regardless of whetherthat incarceration is the result of

a crime enumerated in [ section5329(b) ].

M.G. v. L.D., 155 A.3d at 1094 (numeration original).

Although Etter was decided prior to the amendments toour current Custody Law, in M.G. we determined they stillplayed a role in deciding prison cases.

M.G. involved an incarcerated Mother's request to see, orto at least have telephone contact with her 12–year–old

daughter. 11 Specifically, the trial court did not consider theemotional effect the contact would have on the child, nor thetravel logistics and supervision during the visit. Id. Likewise,the trial court did not determine whether the mother's interestin expanding contact with her daughter was genuine. Thecourt also failed to consider the nature of the mother's criminalconduct and its effect upon her daughter. Id., at 1094–1095.

Without specifically stating so, in M.G. we acknowledged

the Etter factors are now assimilated into § 5328(a)

analysis under § 5328(a)(16). See P.J.P. v. M.M., 2018 PASuper 100, 185 A.3d 413, 2018 WL 1979832 (2018) (holding

that the shared custody factors set forth in Wiseman v.Wall, 718 A.2d 844 (Pa. Super. 1998), which predated the2011 amendments to the Custody Law, assimilated into the

custody factors set forth in 23 Pa.C.S.A. § 5328(a) ).

We acknowledge that not every § 5328(a) factor willnecessarily apply. *1168 “[W]here, as here, one parent isincarcerated and will remain imprisoned for an extended

period, the applicability of several of the enumerated [ §5328(a) ] statutory factors is questionable.” M.G., 155 A.3dat 1093.

Some § 5328(a) factors are largely inapplicable to

these cases. For example, perhaps § 5328(a)(5) (“Theavailability of extended family”) has less value than other

factors when determining whether an incarcerated parentshould be able to speak to her daughter. But, of coursethis factor might be relevant if extended family can providetransportation or financial resources to allow telephone orvirtual visitation.

Some factors overlap. Compare: § 5328(a)(11)(“The

proximity of the residences of the parties”) with EtterFactor 2 (“The distance and hardship to the child in traveling

to the visitation site.”) Most of the Etter factors have a

similar § 5328(a) counterpart.

[18] In the case at hand, the trial court first applied the formerlaw and then misapplied the current law. We observe thetrial court relied upon, at least in part, the former custody

statute, which was repealed in 2011. See T.C.O., at 2–3. 12

Moreover, to the extent that the trial court conducted a proper

§ 5328(a) analysis, it failed to contemplate the relevant

Etter factors.

The court did apply § 5328(a)(11)(relating to the proximityof the parties' residences) almost as if it was the second

Etter factor (the distance to the prison). The court found:“It is approximately 85 miles from Father's residence to SCI–Muncy which is a driving time of 1 ½ hours each way.” Wherewe believe the trial court erred, however, was in failing to

consider the other Etter factors. 13 For example, the courtdid not consider the emotional or physical effect the requestedtelephone contact would have on the child. The court did notconsider whether Mother has exhibited a genuine interest inthe child. The trial court did not consider whether reasonablecontacts were maintained in the past.

[19] Etter aside, the trial court erred by not interviewing

the child to consider her preference, per § 5328(a)(7).Although the discretion remains exclusively with the trialcourt, a child's well-reasoned preference, based on her age andjudgment, could carry more weight in an incarceration casethan it might otherwise would have.

Although we find that the Etter factors have assimilatedinto our current Custody Law, the presumption set forth

in Etter did not survive the amendments to the

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custody statutes. Father cites Etter for his argument thatincarceration alone “is a basis for creation of a presumption,to be rebutted by the prisoner parent, that such visitation isnot in the best interest of the child.” See Father's Brief, at 11;

see also Etter v. Rose, 454 Pa.Super. 138, 684 A.2d 1092,1093 (1996).

The legislature, in amending our Custody Law, provided

no such presumption in *1169 incarceration cases. 14 Ourlegislature contemplated when a presumption would arise, aswell as how to treat parents' criminal histories; it providedno such presumption against incarcerated parents. Indeed, notonly is this presumption absent from our statutes, but anysuch presumption would run afoul of the advances our courtshave made in proceedings conducted under the Juvenile Act,42 Pa.C.S.A. § 6301, et seq. Our Judicial Dependency CourtBenchbook references the Pennsylvania State RoundtableDependent Children of Incarcerated Parents 2013 WorkgroupReport. The report states:

[I]n most cases, children benefit fromvisitation and contact with a parentwho is incarcerated. Children feelenormous grief and loss when theyare unable to maintain contact with aparent. It is almost the same when aparent has died. Children also worryabout a parent that they cannot see ortalk to on a regular basis. [...] Visitationand contact can reduce some of theirworries and sad feelings.

Id. The Benchbook outlines the following best practices independency court:

Best Practice—Visits in Local Jails and Prisons

[...] Indeed, many counties have worked with theirlocal jails and created innovative practices, includingchild-friendly visitation space, that support meaningfulparent/child visitation. Some examples include Adams,Allegheny, Blair, Crawford and Westmoreland counties.[...]

Id., at § 8.4.

We fail to see why the children of incarcerated parents shouldbe treated differently depending on whether they are thesubject of dependency proceedings or custody proceedings.Both the Juvenile Act and the Custody Law serve the “bestinterests” of children.

Because the trial court failed to consider the relevant Etter

considerations unique to prison cases under § 5328(a)(16),the trial court erroneously determined the extent of Mother's“supervised physical custody” without proper considerationof “all relevant factors.”

IV.

Finally we must address Mother's claim that the trial courtprocess constituted a “loss of her parental rights.” Here, whenMother filed for modification of supervised physical custody,the trial court awarded Father sole legal custody. The trialcourt's legal custody decision similarly consists of proceduraland substantive faults.

[20] [21] If a party requests modification of any formof custody, the decision of whether to modify either legalcustody or physical custody should be made on a case by

case basis under the § 5328(a) factors discussed above. Wecannot determine from the ex parte hearing whether Mothershould retain her shared legal custody, but we acknowledgethat legal custody rights of incarcerated parents do not vanishupon their incarceration. Indeed, the trial court acknowledgedMother retained shared legal custody when scheduling thecustody hearing, but then the court deprived her of those rightsin its final order.

In doing so, we note that the trial court again applied therepealed custody statute. See T.C.O., at 2–3. Similar tothe analysis above, “legal custody” is a “form of custody.”

*1170 See 23 Pa.C.S.A. § 5322. As such, an award ormodification of legal custody necessarily requires analysis of

the § 5328(a) custody factors. The trial court relied on legalcustody considerations set forth in earlier case law that have

been assimilated under § 5328(a).

Before the revisions to the Custody Law, we held that whendetermining whether to award shared legal custody, the trialcourt must consider the following legal custody factors:

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(1) whether both parents are fit,capable of making reasonable childrearing decisions, and willing andbe able to provide love and carefor their children; (2) whether bothparents evidence a continuing desirefor active involvement in the child'slife; (3) whether the child recognizesboth parents as a source of securityand love; (4) whether a minimal degreeof cooperation between the parents ispossible.

See, e.g., Yates v. Yates, 963 A.2d 535 (Pa. Super. 2008); seealso Bernard v. Green, 412 Pa.Super. 201, 602 A.2d 1380,

1381 (1990) (quoting In re Wesley J.K., 299 Pa.Super.504, 445 A.2d 1243, 1249 (1982). We hold that these legalcustody factors have similarly been assimilated into the

custody factors set forth in 23 Pa.C.S.A. § 5328(a). SeeP.J.P. v. M.M., supra, 2018 PA Super 100, 185 A.3d 413,

2018 WL 1979832 (2018). 15

Unlike the Etter factors, where several uniqueconsiderations—specific to prison incarceration cases—are

now considered under § 5328(a)(16)'s catchall provision,here, these four “legal custody factors” from our case law

have been entirely consumed by § 5328(a). For instance,the legislature expertly and purposely instructed trial courtsto consider many more specifics than just “fitness” generally.Regarding the former “Legal Factor 1” (whether the parentsare fit and willing to provide love and care), the current

analysis under § 5328(a) encompasses the question of

“fitness” in the following provisions: § 5328(a)(2)(relatingto past abuse); (a)(2.1) (relating to past crimes); (a)(3)

(relating to parental duties); (a)(9)(relating to providing aloving relationship); (a)(10)(relating to the willing to attend tothe child); (a)(12)(relating to the ability to make appropriatechild care arrangements); (a)(14)(relating to the history ofhousehold drug abuse); and (a)(15)(relating to the mental andphysical condition of the household).

[22] Returning now to the instant case, the trial court ruledthat Mother could not share legal custody because she was“not able to participate effectively in parenting decisions.”See T.C.O., at 3. This conclusion is seemingly the product ofno analysis, old or new. The trial court clearly thought it wasbound to the prior legal custody factors. But to the extent the

trial court's § 5328(a) findings could be transplanted in aproper legal custody analysis, we reiterate that Mother did nothave notice, nor an opportunity to be heard on this issue either.

Because the court similarly deprived Mother the opportunityto be heard on legal custody, we must conclude that the courterred. On remand, we direct the trial *1171 court to applythe proper statute in determining whether Father should havesole legal custody of the parties' daughter.

Although, at first glance, it might appear that the trial courtcomplied with our current custody laws by listing the 16factors in its opinion, we must reverse the trial court's order,in this prison custody case, for several reasons. First, becauseMother was not notified of her right to request to be present,Mother's was deprived her right to due process. Additionally,Mother was deprived her right to have her modificationpetition adjudicated under the current Custody Law's analysesfor physical and legal custody. Therefore, we vacate the trialcourt's order in this matter and remand for a new hearing.

Order vacated. Case remanded for proceedings consistentwith this opinion. Jurisdiction relinquished.

All Citations

192 A.3d 1155, 2018 PA Super 192

Footnotes1 23 Pa.C.S.A. §§ 5321–5340.

2 We observe from the cover page of her brief that Mother is apparently now an inmate at SCI Cambridge Springs inCrawford County, which is approximately five hours away from the Schulykill County Courthouse.

3 Mother was convicted of the following crimes: Fraudulent insurance claims (relating to billing services not rendered);Theft by deception (relating to billing for services not rendered); Corrupt organizations relating to billing for services notrendered; Perjury (relating to testimony given in family court matters); Endangering the welfare of children (relating to

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providing a non-subject seventeen-year-old daughter with Xanax); Drug delivery resulting in death (relating to providinga prescription for pain medication); Sale to dependent person (relating to providing a prescription for pain medication);and Refusal to Keep Records Required by Act.

4 23 Pa.C.S.A. §§ 5301– 5315.

5 Although Father's brief is silent as to Mother's loss of shared legal custody, we find Mother preserved this issue whenshe articulated her “loss of parental rights.” See Mother's Brief, at 4.

6 The note to Pa.R.C.P. 1930.4(a)(“Service of Original Process in Domestic Relations Matters”) provides: “Original processserved on an incarcerated person in a domestic relations action must also include notice of any hearing in such actionand specific notice of the incarcerated [parent's] right to apply to the court for a writ of habeas corpus ad testificandum.”Schulykill County Local Rule 15.4C (“Involuntary Termination of Parental Rights—Incarcerated Parent”)(relating toorphans' court rules) requires the presence of an incarcerated parent at a court proceeding involving the termination oftheir parental rights. This rule provides:

Where the natural parent is incarcerated, a petition for involuntary termination of that parent's parental rights mustinclude a statement in the proposed Preliminary Order, submitted with the petition setting the hearing date, that if thenatural parent desires to contest the petition, the parent may do so by requesting the issuance of a writ of habeascorpus ad testificandum. [...]

Schuylkill County Local Rule 15.4C (emphasis added). Notably, this procedure mirrors the service procedure providedPa.R.C.P. 1930.4(a). Although this local rule applies specifically to termination of parental rights cases, we see no reasonto distinguish the due process rights of incarcerated parents in those cases from parents involved in custody actions.

7 See 23 Pa.C.S.A. § 5302, repealed: “ ‘Visitation.’ The right to visit a child.”

8 “Partial physical custody” and “shared physical custody” both refer to the actual physical possession of the child. See

23 Pa.C.S.A. § 5322(b).

9 (1) Which party is more likely to encourage and permit frequent and continuing contact between the child and anotherparty.

(2) The present and past abuse committed by a party or member of the party's household, whether there is a continuedrisk of harm to the child or an abused party and which party can better provide adequate physical safeguards andsupervision of the child.(2.1) The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement withprotective services).(3) The parental duties performed by each party on behalf of the child.(4) The need for stability and continuity in the child's education, family life and community life.(5) The availability of extended family.(6) The child's sibling relationships.(7) The well-reasoned preference of the child, based on the child's maturity and judgment.(8) The attempts of a parent to turn the child against the other parent, except in cases of domestic violence wherereasonable safety measures are necessary to protect the child from harm.(9) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequatefor the child's emotional needs.(10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needsof the child.(11) The proximity of the residences of the parties.(12) Each party's availability to care for the child or ability to make appropriate child-care arrangements.(13) The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another.A party's effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperatewith that party.(14) The history of drug or alcohol abuse of a party or member of a party's household.(15) The mental and physical condition of a party or member of a party's household.

10 Although the D.R.C. decision was issued in 2011—after the adoption of the current Custody Law—our Supreme Court

was tasked with interpreting the since-repealed 23 PA.C.S.A. § 5303 (Award of Custody, Partial Custody or Visitation).

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In doing so, the Supreme Court approved the Etter factors. In M.G. v. L.D., we noted Supreme Court's approval of

the Etter factors and reaffirmed their relevance under the current Custody Law.

We also note that 23 Pa.C.S.A. §§ 5329(c) (“Initial Evaluation”) and (d) (“Counseling”) apply only to the post-releasecases, not when a parent is presently incarcerated. M.G., 155 A.3d at 1093–1094.

11 Critically, we note that although the trial court in M.G. failed to consider the relevant factors, it properly conducted a fullcustody trial where the incarcerated mother participated in the hearing.

12 The trial court cites to 23 Pa.C.S.A. § 5302 and to our 1991 case Warren v. Rickabaugh, 410 Pa.Super. 431, 600A.2d 218 (1991), wherein we held: “In custody disputes, the controlling question and paramount concern of the Court isthe best interests of the child, and all other considerations are deemed subordinate to the child's physical, intellectual,moral and spiritual well-being.”

13 We recognize that some Etter factors may also be inapplicable given Mother's request was only for telephone contact.She did not seek to have the child transported to her. But even under this narrower custody analysis, the court still failedto make the proper considerations.

14 See 23 Pa.C.S.A. § 5327 (“Presumption in cases concerning primary physical custody”); see also §§ 5329(“Consideration of criminal conviction”); 5329.1 (“Consideration of child abuse and involvement with protective services”);5330 (“Consideration of a criminal charge”). The legislature did not even insert a presumption in a case where one parent

has murdered the other parent. See § 5329(b).

15 As we noted in P.J.P., prior custody case law still may retain persuasive value. In the past, we stated that “the absence in

the record of animosity of one parent toward the other parent strengthens the case for shared custody.” See, e.g., Inre Wesley J.K., 445 A.2d at 1249. Nothing we have said today detracts from this holding, as the holding speaks to theweight of the factors. We only clarify the factors themselves. Thus, it could be very reasonable for a trial court—findingno record of animosity—to award one parent primary physical custody, while opting to keep legal custody shared. So

long as both analyses involve the § 5328(a) factors, the trial court is free to assign the same factors different weightwhen awarding first physical custody, then legal custody.

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164 A.3d 1260Superior Court of Pennsylvania.

J.M., Appelleev.

K.W., Appellant

No. 76 MDA 2016|

Argued March 21, 2017|

Filed May 31, 2017

SynopsisBackground: Father filed child custody complaint, andmother filed counterclaim and issued notice of proposedrelocation with children. The Court of Common Pleas,Schuylkill County, Civil Division, No. S–523–2014, John E.Domalakes, J., held mother in contempt and stripped her ofprimary physical custody. Mother appealed.

Holdings: The Superior Court, Bowes, J., held that:

[1] mother was in contempt for relocating without permission;

[2] mother was not in contempt for enrolling child inpreschool without father's knowledge or permission; and

[3] modification of child custody was impermissible sanctionfor mother's contempt.

Affirmed in part, reversed in part, and remanded.

West Headnotes (11)

[1] Child CustodyDecisions reviewable

Interim custody order is not appealable; therationale behind this precept is that, until the trialcourt has rendered its best-interest determinationon the merits, an interim custody order isephemeral and subject to further modificationupon petition.

2 Cases that cite this headnote

[2] Child CustodyDecisions reviewable

While an order granting temporary or interimcustody is interlocutory, a finding of contempt isfinal and appealable when a sanction is imposed.

1 Cases that cite this headnote

[3] Child CustodyContempt

Mother was in contempt for violating trial court'sscheduling order, which specifically prohibitedrelocation without prior court approval, in childcustody proceedings, although mother issuednotice to father of her intention to relocate; afterfather filed notice of objection, mother relocatedwithout permission from court. 23 Pa. Cons. Stat.Ann. § 5337.

[4] ContemptDisobedience to Mandate, Order, or

Judgment

ContemptWeight and sufficiency

To be in contempt, a party must have violateda court order, and the complaining party mustsatisfy that burden by a preponderance of theevidence.

1 Cases that cite this headnote

[5] ContemptDisobedience to Mandate, Order, or

Judgment

ContemptService on or knowledge of party or other

person

For purposes of contempt, the complainant mustprove certain distinct elements: (1) that thecontemnor had notice of the specific order ordecree which he is alleged to have disobeyed, (2)that the act constituting the contemnor's violation

J.M. v. K.W., 164 A.3d 1260 (2017)2017 PA Super 167

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was volitional, and (3) that the contemnor actedwith wrongful intent.

2 Cases that cite this headnote

[6] Child CustodyExcuses and defenses

Mother was not in contempt for violating courtorder in child custody proceedings by enrollingchild in preschool without father's knowledgeor permission; none of the then-existing ordersspecifically addressed who would exercise legalcustody, and mother did not contravene an

existing court order. 23 Pa. Cons. Stat. Ann.§ 5322.

[7] Child CustodyInterference with custody rights

An adjudication of contempt is not a properbasis to modify an existing custody arrangement.

23 Pa. Cons. Stat. Ann. § 5323(g).

[8] Child CustodyRelief granted

A trial court's ability to alter custody as acontempt sanction is restricted to circumstanceswhere the responding party is given expressnotice that custody will be at issue during thecontempt proceeding and the modification isbased upon the determination of the child's bestinterest.

[9] Child CustodyRelief granted

Modification of child custody awarding fathershared physical custody was impermissiblesanction for mother's contempt of orderprohibiting relocation without approval; motherwas not provided requisite specific notice incontempt petition and attendant orders directingher to appear that her custody rights would beat stake, there was no petition to modify custodybefore trial court during contempt proceedings,father neglected to provide notice and order to

appear, and scheduling orders that court issueddid not disclose that trial court would addressmatter of physical custody during contemptproceeding. Pa. R. Civ. P. 1915.12.

1 Cases that cite this headnote

[10] Constitutional LawNotice and Hearing

Constitutional LawImpartiality

Procedural due process requires, at its core,adequate notice, opportunity to be heard, andthe chance to defend oneself before a fair andimpartial tribunal having jurisdiction over thecase. U.S. Const. Amend. 14.

2 Cases that cite this headnote

[11] Child CustodyModification

Under appropriate circumstances, a trial courtmay modify a custody order temporarilypursuant to statute governing special relief. Pa.R. Civ. P. 1915.13.

1 Cases that cite this headnote

*1262 Appeal from the Order Entered December 24, 2015,In the Court of Common Pleas of Schuylkill County, CivilDivision at No(s): S–523–2014, John E. Domalakes, J.

Attorneys and Law Firms

Jeffrey P. Paul, Lancaster, for appellant.

Richard A. Raiders, Robesonia, for appellee.

BEFORE: BENDER, P.J.E., BOWES, PANELLA,SHOGAN, LAZARUS, OLSON, DUBOW, MOULTONAND SOLANO, JJ.

Opinion

OPINION BY BOWES, J.:

K.W. (“Mother”) appeals the December 24, 2015 orderwherein the trial court held her in contempt and stripped

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her of primary physical custody of the parties' then-four-year-old-son, B.M., and three-year-old daughter, V.M. Asthe modification of physical custody is an improper sanctionfor contempt, we vacate the order and remand for furtherproceedings.

B.M. and V.M. were born of the marriage between Motherand J.M. (“Father”). After the parties separated, Father fileda child custody complaint on March 20, 2014. The followingday, the parties entered a stipulated custody agreement thataccorded Mother primary physical custody of the childrenpending the custody trial. As it relates to the present appeal,the trial court entered several orders, including a March25, 2014 order scheduling the custody conference, whichspecifically prohibited relocation without prior court approvalpursuant to 23 Pa.C.S. § 5337.

On April 25, 2014, Mother filed a counterclaim to the custodycomplaint and issued notice of her proposed relocation withB.M. and V.M. from her residence in Pottsville, SchuylkillCounty, to Lancaster, Lancaster County, approximately one-and-one-half hours away. Father filed a counter-affidavitobjecting to Mother's proposed relocation. However, prior toobtaining the trial court's authorization under § 5337, Motherrelocated with the children to Lancaster during May 2015, andshe purchased property in that county two months later.

Father responded to the move by filing a petition for specialrelief and contempt. During the contempt hearing, Fatherestablished that Mother had relocated to Lancaster withoutprior court approval and enrolled B.M. in a Lancaster-area preschool without Father's knowledge or consent. OnDecember 24, 2015, the trial court entered the above-referenced order that found Mother in contempt, and, as asanction, reduced her custodial rights from primary physicalcustody of B.M. and V.M. to shared custody. The order wasto remain in effect until the underlying custody dispute wasresolved. The trial court also awarded Father $2,214.00 inattorney fees.

On January 12, 2016, Mother filed a timely notice of appealand statement of *1263 errors complained of on appealpursuant to Pa.R.A.P. 1925(a)(2)(i). The trial court issued itsRule 1925(a) opinion on January 26, 2016.

Mother presents the following questions for our review:

I. Did the [trial] court err and abuse its discretion byadjudicating [Mother] in contempt of court, where thepetition for contempt did not contain the notice and order

to appear, as mandated by [Pa.R.C.P. 1915.12] and noorder which was allegedly violated was either referencedin the petition or attached to the petition, as mandated byPa.R.C.P. 1915.12(b) and (c)?

II. Did the [trial] court err and abuse its discretion byfinding [Mother] in contempt of court as a result of hermove from Pottsville, Schuylkill County, Pennsylvaniato Lancaster, Lancaster County, Pennsylvania, withoutleave of court, where none of the existing custody orderscontained the required “relocation” language, as mandatedunder the Pennsylvania Rules of Civil Procedure and thelaws of the Commonwealth of Pennsylvania, and where[Mother's] move was not a relocation, which is definedas: “a change in a residence of a child which significantlyimpairs the ability of a non-relocating party to exercisecustodial rights[,”] since [Mother's] move to LancasterCounty did not significantly impair [Father's] ability toexercise his custodial rights, and he in fact was receivingmore time with his Children than the original custodyorder provided, and [Mother] and [Father] always chosethe pick[-]up and drop[-]off location, and [Father] nevermissed any of his custodial time following [Mother's] moveto Lancaster County, Pennsylvania?

III. Did the [trial] court err and abuse its discretion byfinding that [Mother] was in contempt as a result of herenrolling the parties' son ... in preschool, allegedly without[Father's] knowledge, permission or consent, where noneof the custody orders which were then in place contained“legal custody” provisions, and [the child] was attendingpreschool only during the time when it was [Mother's]custodial period?

IV. Did the [trial] court err and abuse its discretion byspecifically finding that “an appropriate sanction (forcontempt) is to award shared custody until the partiesundergo trial[,”] and did the [trial] court err and abuseits discretion by imposing as a sanction for contempt asignificant modification of the existing custody order, froma primary physical custody order to a shared custody order?

Mother's brief, at 4–5.

[1] At the outset, we must determine whether the appealis properly before us. We observe that the trial court'smodification of physical custody “until such time as the[matter proceeds to a] pending custody trial” is temporarywith respect to the custody determination. Trial CourtOrder, 12/24/15, at unnumbered 8. It is well-ensconced in

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Pennsylvania that an interim custody order is not appealable.G.B. v. M.M.B., 448 Pa.Super. 133, 670 A.2d 714, 720(1996). The rationale behind this precept is that, until thetrial court has rendered its best-interest determination on themerits, an interim custody order is ephemeral and subjectto further modification upon petition. Thus, at first blush, itappears that this portion of the appeal is interlocutory.

[2] However, upon closer examination of the pertinentissue, it is obvious that the instant order is not an interimdetermination of the children's best interest, and Mother doesnot challenge the trial court's determination of custody per se.In reality, the order in the case at bar is a finding of contemptand a concomitant *1264 sanction, which as we discussinfra, was entered in contravention of our jurisprudenceregarding the modification of custody as a consequence ofcontempt. While an order granting temporary or interimcustody is interlocutory, it is beyond cavil that a finding ofcontempt is final and appealable when a sanction is imposed.Stahl v. Redcay, 897 A.2d 478 (Pa.Super. 2006). Thus, theorder is appealable.

We first review the propriety of the contempt order, andsince we sustain the trial court's finding that Mother was incontempt for relocating with the children without permissionand/or enrolling their son in preschool without consultingFather, we will then determine whether the trial court imposedan appropriate sanction.

[3] Preliminarily, we review the merits of the substantivechallenges that Mother raises in issues two and three. In issuetwo, Mother asserts that the trial court erred in finding her incontempt for relocating the children from Schuylkill Countyto Lancaster County. The crux of Mother's argument is thatthe custody order that was in effect did not preclude her fromrelocation. She continues that, although the relevant languagewas included in at least one of the trial court's schedulingorders, Father failed to attach that order to his contemptpetition or demonstrate that she was aware that the orderexisted. These arguments fail.

[4] [5] It is established: “To be in contempt, a partymust have violated a court [o]rder, and the complainingparty must satisfy that burden by a preponderance of the

evidence.” Hopkins v. Byes, 954 A.2d 654, 655 (Pa. Super.2008) (citation omitted). Specifically, “the complainant mustprove certain distinct elements[:] (1) that the contemnor hadnotice of the specific order or decree which he is alleged tohave disobeyed; (2) that the act constituting the contemnor's

violation was volitional; and (3) that the contemnor acted with

wrongful intent.” P.H.D. v. R.R.D., 56 A.3d 702, 706 n.7(Pa.Super. 2012).

Instantly, as Mother acknowledges, the trial court's March 25,2014 scheduling order expressly highlighted in bold type, “Noparty may make a change in the residence of any child whichsignificantly impairs the ability of the other party to exercisecustodial rights without first complying with all of theapplicable provisions of 23 Pa.C.S. § 5337 and Pa.R.C.P. No.1915.17 regarding relocation.” Trial Court Order, 3/25/14.Section 5337 of the Child Custody Law instructs that a partywishing to relocate must provide notice of such intent prior tomoving, to which any party entitled to receive notice may fileobjections. The statute continues, “No relocation shall occurunless: (1) [the parties consent]; or (2) the court approves theproposed relocation.” 23 Pa.C.S. § 5337(b). However, beforea court may approve a proposed relocation several things mustoccur. First, “[t]he party proposing relocation shall notifyevery other individual who has custody of the child [,]” andinform them of the particulars of the proposed move. 23Pa.C.S. § 5337(c) (1)-(4). Next, if a non-relocating partyfiles an objection to the proposed relocation, the trial courtis required to hold a hearing in which the party proposingrelocation has the burden of proving that the move wouldserve the child's best interest in light of the factors set forthin § 5337(h) (1)-(10). 23 Pa.C.S. § 5337(d), (g), (h) and (i).Absent exigent circumstances that warrant relocation prior tothe evidentiary hearing, the trial court will not approve themove until a full consideration of all the relevant statutoryfactors addressed during the hearing. 23 Pa.C.S. § 5337(g).

All of the required steps did not occur herein. One month afterthe entry of the March 25, 2014 order, Mother issued noticeto Father of her intention to relocate *1265 to LancasterCounty with the children. However, after Father filed noticeof his objection, Mother relocated without permission incontravention of the March 25, 2014 order directing herto comply with the relocation provision of § 5337. AsMother ignored Father's objection to her proposed relocationand acted unilaterally in moving with the children beforeobtaining the trial court's approval, the certified recordsustains the trial court's finding that Mother was in contempt.

Furthermore, we reject Mother's insinuation that she didnot receive notice of the March 25, 2014 scheduling orderinforming her of the proscription against relocation withoutprior court approval in compliance with § 5337. The very factthat Mother issued notice of her proposed relocation within

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one month of the trial court's directive is compelling evidencethat she knew of the order and sought to comply, at leastinitially, with it.

Similarly unavailing is Mother's assertion that hersurreptitious move with the parties' children from SchuylkillCounty to Lancaster County was not a “relocation.” Notingthat a proposed move's effect on the non-relocating party'scustodial rights is a fundamental component of the statutorydefinition of relocation, Mother asserts that, since shepermitted Father greater access to the children after the moveto Lancaster than was required by the custody order, it did

not fall within the definition of relocation. 1 Mother cites

our holding in C.M.K. v. K.E.M., 45 A.3d 417, 425–426 (Pa.Super. 2012) in support of her position that the

move was not a “relocation.” The C.M.K. Court foundthat a trial court erred in concluding that the mere fact thata custodial parent issued notice of a proposed relocationwas determinative of whether the move would have met thestatutory definition of a relocation. We reasoned that whethera custodial parent's decision to move the children to anotherlocation was tantamount to a relocation under the ChildCustody Law depended upon whether the move significantlyimpaired the non-relocating party's ability to exercise custody.Nevertheless, we found that the evidence adduced duringthe relocation hearing established that the proposed moveconstituted a relocation.

The crux of Mother's position is that, since she increasedFather's custodial rights after she moved the children toLancaster without permission, the change did not fall withinthe statutory definition of “relocation,” and therefore shewas not bound by the procedures outlined in § 5337. Thisargument, which is premised on strained interpretations

of both our holding in C.M.K. and the statutorydefinition of “relocation,” demonstrates Mother's generalmisunderstanding of § 5337.

By definition, a relocation impacts the non-relocating party'sability to exercise custody. However, unlike the issue in

C.M.K., supra, we need not determine whether the moveto Lancaster fell within the statutory definition of “relocation”in this case because Mother clearly believed that it mightwhen she issued notice of the proposed relocation pursuantto § 5337. That decision belies her current assertion that §

5337 was inapplicable. Unlike, the trial court in C.M.K.,we are not concluding that Mother tacitly conceded that the

proposed move was, in fact, a relocation. To the contrary, wefind that, having initiated the relocation procedure pursuantto § 5337, Mother violated the terms of the March 25, 2014

order by ignoring the steps required by the statute. 2

*1266 Moreover, although Mother was willing tosupplement Father's custodial periods in order to mitigatethe harm caused by the move, that fact was but one of tenrelocation factors that the trial court would have consideredduring the full hearing to determine the children's best interestunder § 5337(h)(1)-(10), had Mother not usurped § 5337 andrelocated to Lancaster County prematurely. Thus, Mother'spost hoc generosity in seeking to lessen the damage to Father'srights did not negate the fact that, by relocating withoutpermission, she violated the scheduling order directing her tocomply with § 5337. No relief is due.

[6] In her third issue, Mother contends that the trial courtabused its discretion by finding her in contempt for enrollingB.M. in preschool without Father's knowledge or permission.Essentially, this question relates to whether Mother impingedupon an order regarding legal custody, i.e., “The right tomake major decisions on behalf of the child, including, butnot limited to, medical, religious and educational decisions.”

23 Pa.C.S. § 5322. Mother highlights that none of the then-existing orders specifically addressed who would exerciselegal custody. As the record sustains Mother's observation thata relevant determination of legal custody did not exist, weagree with her position that the trial court erred in findingher in contempt in this respect. Stated plainly, while Motherdemonstrated a remarkable lack of cooperation by actingunilaterally to place B.M. in the daycare of her choice,she did not contravene an existing court order. Thus, thefundamental element of civil contempt is missing in this case.

See Hopkins, supra; P.H.D., supra. In light of ourdecision to reverse this aspect of the contempt order, weremand the matter for the trial court to re-evaluate the awardof counsel fees.

Next, having sustained the trial court's finding of contempt asit relates to Mother's unauthorized relocation to Lancaster, wereview the propriety of the court's decision to alter physicalcustody as a contempt sanction. This issue subsumes thefirst and fourth issues that Mother lists in her statement ofquestions presented on appeal. Mother contends that the trialcourt violated her due process rights by modifying the custodyarrangement concomitant with the contempt adjudication.The crux of Mother's argument is that Father's contempt

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petition provided insufficient notice that custody would be atissue during the contempt proceedings. She continues that,by awarding custody to Father without affording notice thatthe existing custody order could be modified, the trial courtdenied her the opportunity to defend against modification.

Father counters that Mother had notice that he sought custodyas a result of her alleged contempt. He points out thathis petition entreated the court to grant him custody oftheir children and the proposed order that he attached tohis petition provided, “Plaintiff is granted primary custodyuntil further order of court.” Petition for Special Relief andContempt, 9/23/15, at unnumbered page 2, and attachedproposed order. Thus, Father contends that *1267 Motherhad the opportunity to prepare for the contempt proceedingsand to advocate her position vis-à -vis the custody request.For the reasons that follow, we disagree.

[7] [8] It is settled that an adjudication of contempt is not

a proper basis to modify an existing custody arrangement. 3

See Clapper v. Harvey, 716 A.2d 1271, 1275 (Pa.Super.1998) (“a mother's violation of a custody order may be anappropriate foundation for a finding of contempt, but it cannot

be the basis for an award of custody”); Rosenberg v.Rosenberg, 350 Pa.Super. 268, 504 A.2d 350, 353 (1986)(“A custody award should not be used to reward or punish aparent for good or bad behavior”). This Court has confrontedseveral cases where the trial court awarded one party custodyas a sanction for the other party's contumacious conduct.

See e.g. Langendorfer v. Spearman, 797 A.2d 303

(Pa.Super. 2002); and Everett v. Parker, 889 A.2d 578,

581 (Pa.Super. 2005); cf. Steele v. Steele, 376 Pa.Super.174, 545 A.2d 376 (1988) (noting that it is generallyimproper for trial court to modify custody arrangementswithout petition for modification before it). The effect of thisjurisprudence is that a trial court's ability to alter custody asa contempt sanction is restricted to circumstances where theresponding party is given express notice that custody will beat issue during the contempt proceeding and the modificationis based upon the determination of the child's best interest.

In Langendorfer, supra, the mother, who maintainedpartial physical custody of her son during the summer,filed a contempt petition against the father asserting thathe had violated the existing custody arrangement. Notably,the Mother's contempt petition failed to include any requestto transfer custody and the order scheduling the contempt

hearing did not notify either party that custody would be anissue during the contempt proceedings. Moreover, there wasno indication in the record that the trial court consolidated themother's contempt petition with the father's previously filedmotion to temporarily adjust the custody schedule. Followingthe contempt hearing, the trial court awarded the mother solelegal and physical custody of the child. However, relying

upon the precept discussed in Choplosky v. Choplosky,400 Pa.Super. 590, 584 A.2d 340, 342 (1990), “without amotion to modify visitation rights before it, a trial court maynot permanently alter the visitation rights of [the] parties,”this Court vacated the custody order on appeal as violating thefather's right to due process.

We reiterated the Langendorfer Court's rationale in

P.H.D. v. R.R.D., 56 A.3d 702, 707–708 (Pa.Super. 2012),

and concluded, “As in Langendorfer, Father here had nonotice that custody was at issue. Neither the contempt petitionnor the notice and order to appear held out the prospect

of custody modification.” Similarly, in Everett, supra at581, this Court explained, “When modification of custody issought by a custody contempt petitioner, the respondent mustbe given particular notice of that objective.” In reaching thatdetermination, we reasoned that the requisite *1268 noticemust appear both in the body of the contempt petition and in

the order to appear. Everett, supra at 581.

In Everett, a father filed a pro se contempt petition againstthe mother who maintained primary custody of his child.While the third page of the contempt petition requesteda change in the custody arrangement, the father failed toserve the petition on Mother properly. Instead, he mailed acopy of the petition to an attorney who represented motherduring prior dependency proceedings and to the family'sCYS caseworker. Neither the mother nor her former attorney,who never entered an appearance in the custody dispute,appeared at the contempt hearing. Nevertheless, based uponthe caseworker's statement that she had provided the motherwith actual notice of the date and time of the hearing, the trialcourt determined that the mother received sufficient notice ofthe father's petition. Accordingly, it held the contempt hearingex parte, found the mother in contempt, and modified theexisting custody order by awarding the father primary custodyof his son. On appeal, we vacated the contempt order.

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As it relates to the issue in the case at bar, the EverettCourt concluded that the trial court violated the mother's rightto due process by modifying the custody order as part ofthe contempt proceedings because the mother was deniedspecific notice that custody would be at stake in the contemptproceedings. Noting that the mother was not properly servedwith the contempt petition that implicated the custodyarrangement or with the notice of the scheduled contempthearing, we determined that the caseworker's notification tothe mother concerning the time and date of the proceedingswas insufficient. Specifically we reasoned, “Formal noticeand an opportunity to be heard are fundamental componentsof due process when a person may be deprived in a legalproceeding of a liberty interest, such as physical freedom, or

a parent's custody of her child.” Everett, supra at 580.

Thus, as the foregoing discussion of relevant bindingauthority highlights, a trial court may transfer physicalcustody at the conclusion of a contempt hearing only whenthe modification suits the child's best interest in light of thestatutory factors and the respondent has been given particularnotice of that objective. In reaching our decision, we stressthat the reason for the notice requirements is more than aprocedural formality. Indeed, without particularized noticethat custody would also be at issue at the contempt hearing,a respondent would not be prepared to litigate the custodydispute during the contempt proceedings and the trial courtwould be denied the benefit of both parties' relevant evidenceconcerning the children's well-being. Consequently, as this

Court previously explained in Langendorfer, supra at309, the trial court would lack the required informationto make the “quintessentially crucial judgment” as to thechildren's best interests.

It is of no moment that the trial court's modificationwas ostensibly temporary because the foregoing principlesapply with equal effect to provisional orders. First, allcustody awards are temporary insofar as they are subjectto modification by an ensuing court order any time thatit promotes the child's best interest. Thus, by force ofcircumstances, no award of child custody is permanentregardless of whether the order is styled as interim or final.

Second, as the prolonged history of this case demonstrates,the judicial machinery may stall or become so congestedthat a temporary order forms the de facto status quoregardless of its purported impermanence. Instantly, Fatherfiled the underlying custody complaint on March 21, 2014,

yet the custody trial was not scheduled until approximatelytwo years later, and *1269 then that proceeding wasstayed indefinitely because the custody evaluation that wasperformed during Spring 2014 had grown stale. Indeed, asof the date of this writing, the theoretically “temporary”order that Mother challenges herein has governed the parties'custody arrangement for approximately sixteen months sinceits inception on December 24, 2015. There still has not beena formal determination of the children's best interest that

would qualify as a “final” order. 4 Hence, the interim orderwas temporary in name only. It carried the same force as afinal custody order for approximately one and one-half years.Accordingly, we find that even an ostensibly temporary ordergranting the modification of physical custody implicates

the Langendorfer Court's concerns about the evidentiarydeficit where the respondent did not receive particularizednotice that custody would be at issue in a contemptproceeding.

Thus, for all of the foregoing reasons, we hold that absent anaward of special relief under Rule 1915.13, which we discussinfra, it is an abuse of discretion for the trial court to transfercustody from one party to the other as a contempt sanction andthat custody can be modified only where the parties receiveadvance notice that custody is to be an issue at the contempthearing and modification is based upon the determination ofthe child's best interest.

[9] [10] Having established the appropriate legalframework, we next address Mother's and Father'scountervailing arguments regarding whether Father satisfiedthe particularized notice requirements we outlined in

Langendorfer, supra and its progeny. Pursuant toPa.R.C.P. 1915.12(a), a contempt petition must include asection entitled “Notice and Order to Appear.” The ruleprescribes the form and content of the notice and order toappear. Herein, Father's petition for contempt and specialrelief requested a modification of custody, but it lacked therequired notice and order to appear as outlined by Rule1915.12. A petition for special relief is not analogous toa motion for modification, which not only implicates athorough analysis of the children's best interest under §5328(a), but also necessarily provides express notice thatcustody would be at issue. As Father neglected to issue therequired notice and order to appear, he did not provide Mothernotice that the existing custody order could be modified as a

consequence of the contempt proceedings. 5 Moreover, both

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the original *1270 scheduling order that the trial court issuedand its revised order failed to mention custody at all.

Presently, as in Langendorfer, there was no petition tomodify custody before the trial court during the contemptproceedings, Father neglected to provide the notice and orderto appear pursuant to Rule 1915.12(a), and the schedulingorders that the court issued did not disclose that the trialcourt would address the matter of physical custody duringthe contempt proceeding. While Father included a custody-related prayer for relief in his contempt petition and theproposed order that he submitted for the court's approval,Mother was not provided the requisite specific notice inthe contempt petition and the attendant orders directing herto appear that her custody rights would be at stake. See

Everett, supra. Accordingly, Father's notice to Motherthat he sought to modify the custody arrangement during thecontempt proceedings was deficient, and, absent notice ofthat objective, the trial court erred in modifying custody as acontempt sanction.

[11] Finally, we observe that the certified recorddemonstrates that the trial court did not intend to issue specialrelief pursuant to its authority under Pa.R.C.P. 1915.13.Under appropriate circumstances, a trial court may modify

a custody order temporarily pursuant to Rule 1915.13. 6

See Choplosky, supra at 343, (“ ‘special relief’ mayin some cases be appropriate (and necessary) where thesituation is such that, for example, temporary modificationof custody or visitation rights would preserve the well-

being of the children involved while the parties prepare toresolve more permanently the question of where and/or with

whom the children should remain.”); 23 Pa.C.S. § 5323(b)(“The court may issue an interim award of custody to aparty who has standing ... in the manner prescribed by thePennsylvania Rules of Civil Procedure governing specialrelief in custody matters.”). However, the trial court did notenter an order to that effect in the case at bar. In fact, the trialcourt unquestionably granted Father shared physical custodyas an impermissible sanction for contempt. Indeed, thecourt explicitly directed, “[The] appropriate sanction [againstMother] is to award shared custody until the parties undergothe trial.” Trial Court Order, 12/24/15, at unnumbered page 7.

Accordingly, for all of the foregoing reasons, we affirm thetrial court's adjudication of contempt for Mother's relocationin contravention of the order directing compliance with §5337, reverse the finding that Mother was in contempt forplacing B.M. in the preschool of her choice, vacate the court'scontempt sanction awarding Father shared physical custody,and remand the matter for the trial court to recalculate itsaward of attorney fees in light of our holding. In light of thedelays that have plagued this custody litigation, we direct thetrial court to hold the custody hearing expeditiously.

*1271 Order affirmed in part, reversed in part, and remandedfor further proceedings. Jurisdiction relinquished.

All Citations

164 A.3d 1260, 2017 PA Super 167

Footnotes1 Section 5322 of the Child Custody Law provides, in pertinent part, “ ‘Relocation.’ A change in a residence of the child

which significantly impairs the ability of nonrelocating party to exercise custodial rights.”

2 This case is distinguishable from C.M.K. v. K.E.M., 45 A.3d 417 (Pa.Super. 2012), insofar as Mother's actions deprivedthe trial court of its ability to consider any evidence to determine whether the proposed move did, in fact, constitute a

relocation within the meaning of the Child Custody Law. In C.M.K., the mother followed the correct procedure andthe trial court held an evidentiary hearing before determining, inter alia, that the proposed move constituted a relocationbecause it involved changes that would significantly impair the father's ability to exercise his current custodial rights. AsMother abandoned the § 5337 procedures in this case, the required hearing did not occur, and the trial court was unableto confront the precise issue that Mother is trying to resurrect on appeal, i.e., whether the move constituted a relocation.

3 The Child Custody Law outlines the sanctions for contempt as follows:(1) A party who willfully fails to comply with any custody order may, as prescribed by general rule, be adjudged incontempt. Contempt shall be punishable by any one or more of the following:(i) Imprisonment for a period of not more than six months.(ii) A fine of not more than $500.(iii) Probation for a period of not more than six months.

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(iv) An order for nonrenewal, suspension or denial of operating privilege under section 4355 (relating to denial orsuspension of licenses).(v) Counsel fees and costs.

23 Pa.C.S. § 5323(g).

4 This case has utterly defied our Supreme Court's desire to resolve child custody issues promptly. Compare the above-referenced procedural history with Pa.R.C.P. 1915.12(b) and (c) regarding the prompt disposition of custody cases(generally trial should be scheduled within 180 days of the custody complaint and trial shall commence within 90 daysof the scheduling order).

5 We reject Mother's related assertion that Father's failure to accomplish strict compliance with the Pa.R.C.P. 1915.12notice requirements warrants overturning the trial court's contempt finding. It is well-settled that “procedural due processrequires, at its core, adequate notice, opportunity to be heard, and the chance to defend oneself before a fair and

impartial tribunal having jurisdiction over the case. Everett v. Parker, 889 A.2d 578, 580 (Pa.Super. 2005). Instantly,notwithstanding the procedural defects that impaired the court's ability to modify physical custody, Father's petitionnotified Mother that he sought a finding of contempt against her based upon her relocation with the children to Lancaster.Plainly, Mother does not contend that Father failed to provide notice of the petition or the evidentiary hearing. Shemerely complains that he failed to attach a “Notice and Order to Appear” pursuant to Rule 1915.12(a). Indeed, Motherappeared with counsel at the appropriate place and time for the contempt hearing and vehemently contested Father'spetition. Therefore, Mother's challenge to the propriety of the contempt determination based upon the noted defects isunpersuasive.

6 Rule 1915.13 provides as follows:At any time after commencement of the action, the court may on application or its own motion grant appropriate interimor special relief. The relief may include but is not limited to the award of temporary custody, partial custody or visitation;the issuance of appropriate process directing that a child or a party or person having physical custody of a child bebrought before the court; and a direction that a person post security to appear with the child when directed by the courtor to comply with any order of the court.

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§ 5323. Award of custody, PA ST 23 Pa.C.S.A. § 5323

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KeyCite Yellow Flag - Negative Treatment Proposed Legislation

Purdon's Pennsylvania Statutes and Consolidated StatutesTitle 23 Pa.C.S.A. Domestic Relations (Refs & Annos)

Part VI. Children and MinorsChapter 53. Child Custody (Refs & Annos)

23 Pa.C.S.A. § 5323

§ 5323. Award of custody

Effective: January 24, 2011Currentness

(a) Types of award.--After considering the factors set forth in section 5328 (relating to factors to consider when awardingcustody), the court may award any of the following types of custody if it is in the best interest of the child:

(1) Shared physical custody.

(2) Primary physical custody.

(3) Partial physical custody.

(4) Sole physical custody.

(5) Supervised physical custody.

(6) Shared legal custody.

(7) Sole legal custody.

(b) Interim award.--The court may issue an interim award of custody to a party who has standing under section 5324 (relatingto standing for any form of physical custody or legal custody) or 5325 (relating to standing for partial physical custody andsupervised physical custody) in the manner prescribed by the Pennsylvania Rules of Civil Procedure governing special reliefin custody matters.

(c) Notice.--Any custody order shall include notice of a party's obligations under section 5337 (relating to relocation).

(d) Reasons for award.--The court shall delineate the reasons for its decision on the record in open court or in a written opinionor order.

§ 5323. Award of custody, PA ST 23 Pa.C.S.A. § 5323

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(e) Safety conditions.--After considering the factors under section 5328(a)(2), if the court finds that there is an ongoing riskof harm to the child or an abused party and awards any form of custody to a party who committed the abuse or who has ahousehold member who committed the abuse, the court shall include in the custody order safety conditions designed to protectthe child or the abused party.

(f) Enforcement.--In awarding custody, the court shall specify the terms and conditions of the award in sufficient detail toenable a party to enforce the court order through law enforcement authorities.

(g) Contempt for noncompliance with any custody order.--

(1) A party who willfully fails to comply with any custody order may, as prescribed by general rule, be adjudged in contempt.Contempt shall be punishable by any one or more of the following:

(i) Imprisonment for a period of not more than six months.

(ii) A fine of not more than $500.

(iii) Probation for a period of not more than six months.

(iv) An order for nonrenewal, suspension or denial of operating privilege under section 4355 (relating to denial orsuspension of licenses).

(v) Counsel fees and costs.

(2) An order committing an individual to jail under this section shall specify the condition which, when fulfilled, will resultin the release of that individual.

(h) Parties in same residence.--Parties living separate and apart in the same residence may seek relief under this chapter, butany custody order made under such a circumstance shall be effective only upon:

(1) one party physically vacating the residence; or

(2) an order awarding one party exclusive possession of the residence.

Credits2010, Nov. 23, P.L. 1106, No. 112, § 2, effective in 60 days [Jan. 24, 2011].

§ 5323. Award of custody, PA ST 23 Pa.C.S.A. § 5323

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Editors' Notes

JT. ST. GOVT. COMM. COMMENT--2010

Under subsection (a), the court should address both physical and legal custody in any award of custody. Subsection(b) provides for an interim award of special relief in accordance with the Pennsylvania Rule of Civil Procedure No.1915.13. The explicit sanction of counsel fees and costs in subsection (g)(1)(v) is consistent with 23 Pa.C.S. §§3502(e)(7) regarding the sanction for failure to comply with an equitable distribution order and 3703(7) regardingpayment of arrearages for alimony and alimony pendente lite. Subsection (h) removes a long-standing obstacle to aparty who otherwise has standing to commence a custody action.

Notes of Decisions (848)

23 Pa.C.S.A. § 5323, PA ST 23 Pa.C.S.A. § 5323Current through 2019 Regular Session Act 75. Some statute sections may be more current, see credits for details.

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§ 5328. Factors to consider when awarding custody, PA ST 23 Pa.C.S.A. § 5328

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 1

KeyCite Yellow Flag - Negative Treatment Proposed Legislation

Purdon's Pennsylvania Statutes and Consolidated StatutesTitle 23 Pa.C.S.A. Domestic Relations (Refs & Annos)

Part VI. Children and MinorsChapter 53. Child Custody (Refs & Annos)

23 Pa.C.S.A. § 5328

§ 5328. Factors to consider when awarding custody

Effective: January 1, 2014Currentness

(a) Factors.--In ordering any form of custody, the court shall determine the best interest of the child by considering all relevantfactors, giving weighted consideration to those factors which affect the safety of the child, including the following:

(1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.

(2) The present and past abuse committed by a party or member of the party's household, whether there is a continued riskof harm to the child or an abused party and which party can better provide adequate physical safeguards and supervisionof the child.

(2.1) The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement with protectiveservices).

(3) The parental duties performed by each party on behalf of the child.

(4) The need for stability and continuity in the child's education, family life and community life.

(5) The availability of extended family.

(6) The child's sibling relationships.

(7) The well-reasoned preference of the child, based on the child's maturity and judgment.

(8) The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonablesafety measures are necessary to protect the child from harm.

§ 5328. Factors to consider when awarding custody, PA ST 23 Pa.C.S.A. § 5328

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(9) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate forthe child's emotional needs.

(10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs ofthe child.

(11) The proximity of the residences of the parties.

(12) Each party's availability to care for the child or ability to make appropriate child-care arrangements.

(13) The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. Aparty's effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate withthat party.

(14) The history of drug or alcohol abuse of a party or member of a party's household.

(15) The mental and physical condition of a party or member of a party's household.

(16) Any other relevant factor.

(b) Gender neutral.--In making a determination under subsection (a), no party shall receive preference based upon gender inany award granted under this chapter.

(c) Grandparents and great-grandparents.--

(1) In ordering partial physical custody or supervised physical custody to a party who has standing under section 5325(1) or(2) (relating to standing for partial physical custody and supervised physical custody), the court shall consider the following:

(i) the amount of personal contact between the child and the party prior to the filing of the action;

(ii) whether the award interferes with any parent-child relationship; and

(iii) whether the award is in the best interest of the child.

(2) In ordering partial physical custody or supervised physical custody to a parent's parent or grandparent who has standingunder section 5325(3), the court shall consider whether the award:

(i) interferes with any parent-child relationship; and

§ 5328. Factors to consider when awarding custody, PA ST 23 Pa.C.S.A. § 5328

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(ii) is in the best interest of the child.

Credits2010, Nov. 23, P.L. 1106, No. 112, § 2, effective in 60 days [Jan. 24, 2011]. Amended 2013, Dec. 18, P.L. 1167, No. 107, §1, effective Jan. 1, 2014.

Editors' Notes

JT. ST. GOVT. COMM. COMMENT--2010

The factors under subsection (a) are not listed in order of preference. Subsection (a)(6) is intended to include full-blood siblings, half-blood siblings, step-siblings and adoptive siblings.

Notes of Decisions (256)

23 Pa.C.S.A. § 5328, PA ST 23 Pa.C.S.A. § 5328Current through 2019 Regular Session Act 75. Some statute sections may be more current, see credits for details.

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works.

Rule 1915.13. Special Relief, PA ST RCP Rule 1915.13

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Purdon's Pennsylvania Statutes and Consolidated StatutesPennsylvania Rules of Civil Procedure (Refs & Annos)

Actions for Custody, Partial Custody and Visitation of Minor Children (Refs & Annos)

Pa.R.C.P. No. 1915.13

Rule 1915.13. Special Relief

Currentness

At any time after commencement of the action, the court may on application or its own motion grant appropriate interim orspecial relief. The relief may include, but is not limited to, the award of temporary legal or physical custody; the issuance ofappropriate process directing that a child or a party or person having physical custody of a child be brought before the court; anda 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.

Note: This rule supplies relief formerly available by habeas corpus for production of the child.

CreditsAdopted Dec. 10, 1981, effective July 1, 1982; effective date extended to Jan. 1, 1983 by order of June 25, 1982. ReadoptedNov. 8, 1982, effective Jan. 1, 1983. Amended Aug. 1, 2013, effective Sept. 3, 2013.

Editors' Notes

EXPLANATORY COMMENT--1981Rule 1915.13 contains a broad provision empowering the court to provide special relief where appropriate. In acustody proceeding, such special relief might include relief in the nature of a writ of ne exeat, directing the partiesnot to leave the jurisdiction and not to remove the child from the jurisdiction.

The rule catalogs several types of relief which might be granted, including the entry of a temporary order of custody,partial custody or visitation. The rule specifically provides that the power of the court to grant special relief shall notbe limited to the types of relief cataloged.

Notes of Decisions (8)

Rules Civ. Proc., Rule 1915.13, 42 Pa.C.S.A., PA ST RCP Rule 1915.13Current with amendments received through October 15, 2019.

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§ 6108. Relief, PA ST 23 Pa.C.S.A. § 6108

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KeyCite Yellow Flag - Negative Treatment Proposed Legislation

Purdon's Pennsylvania Statutes and Consolidated StatutesTitle 23 Pa.C.S.A. Domestic Relations (Refs & Annos)

Part VII. Abuse of FamilyChapter 61. Protection from Abuse (Refs & Annos)

23 Pa.C.S.A. § 6108

§ 6108. Relief

Effective: April 10, 2019Currentness

(a) General rule.-- Subject to subsection (a.1), the court may grant any protection order or approve any consent agreement tobring about a cessation of abuse of the plaintiff or minor children. The order or agreement may include:

(1) Directing the defendant to refrain from abusing the plaintiff or minor children.

(2) Granting possession to the plaintiff of the residence or household to the exclusion of the defendant by evicting thedefendant or restoring possession to the plaintiff if the residence or household is jointly owned or leased by the parties, isowned or leased by the entireties or is owned or leased solely by the plaintiff.

(3) If the defendant has a duty to support the plaintiff or minor children living in the residence or household and the defendantis the sole owner or lessee, granting possession to the plaintiff of the residence or household to the exclusion of the defendantby evicting the defendant or restoring possession to the plaintiff or, with the consent of the plaintiff, ordering the defendantto provide suitable alternate housing.

(4) Awarding temporary custody of or establishing temporary visitation rights with regard to minor children. In determiningwhether to award temporary custody or establish temporary visitation rights pursuant to this paragraph, the court shall considerany risk posed by the defendant to the children as well as risk to the plaintiff. The following shall apply:

(i) A defendant shall not be granted custody, partial custody or unsupervised visitation where it is alleged in the petition,and the court finds after a hearing under this chapter, that the defendant:

(A) abused the minor children of the parties or poses a risk of abuse toward the minor children of the parties; or

(B) has been convicted of violating 18 Pa.C.S. § 2904 (relating to interference with custody of children) within twocalendar years prior to the filing of the petition for protection order or that the defendant poses a risk of violating 18Pa.C.S. § 2904.

§ 6108. Relief, PA ST 23 Pa.C.S.A. § 6108

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(ii) Where the court finds after a hearing under this chapter that the defendant has inflicted abuse upon the plaintiff or achild, the court may require supervised custodial access by a third party. The third party must agree to be accountable tothe court for supervision and execute an affidavit of accountability.

(iii) Where the court finds after a hearing under this chapter that the defendant has inflicted serious abuse upon the plaintiffor a child or poses a risk of abuse toward the plaintiff or a child, the court may:

(A) award supervised visitation in a secure visitation facility; or

(B) deny the defendant custodial access to a child.

(iv) If a plaintiff petitions for a temporary order under section 6107(b) (relating to hearings) and the defendant has partial,shared or full custody of the minor children of the parties by order of court or written agreement of the parties, the custodyshall not be disturbed or changed unless the court finds that the defendant is likely to inflict abuse upon the children or toremove the children from the jurisdiction of the court prior to the hearing under section 6107(a). Where the defendant hasforcibly or fraudulently removed any minor child from the care and custody of a plaintiff, the court shall order the returnof the child to the plaintiff unless the child would be endangered by restoration to the plaintiff.

(v) Nothing in this paragraph shall bar either party from filing a petition for custody under Chapter 53 (relating to custody)or under the Pennsylvania Rules of Civil Procedure.

(vi) In order to prevent further abuse during periods of access to the plaintiff and child during the exercise of custodialrights, the court shall consider, and may impose on a custody award, conditions necessary to assure the safety of the plaintiffand minor children from abuse.

(5) After a hearing in accordance with section 6107(a), directing the defendant to pay financial support to those personsthe defendant has a duty to support, requiring the defendant, under sections 4324 (relating to inclusion of medical support)and 4326 (relating to mandatory inclusion of child medical support), to provide health coverage for the minor child andspouse, directing the defendant to pay all of the unreimbursed medical expenses of a spouse or minor child of the defendantto the provider or to the plaintiff when he or she has paid for the medical treatment, and directing the defendant to make orcontinue to make rent or mortgage payments on the residence of the plaintiff to the extent that the defendant has a duty tosupport the plaintiff or other dependent household members. The support order shall be temporary, and any beneficiary ofthe order must file a complaint for support under the provisions of Chapters 43 (relating to support matters generally) and 45(relating to reciprocal enforcement of support orders) within two weeks of the date of the issuance of the protection order.If a complaint for support is not filed, that portion of the protection order requiring the defendant to pay support is void.When there is a subsequent ruling on a complaint for support, the portion of the protection order requiring the defendantto pay support expires.

(6) Prohibiting the defendant from having any contact with the plaintiff or minor children, including, but not limited to,restraining the defendant from entering the place of employment or business or school of the plaintiff or minor children andfrom harassing the plaintiff or plaintiff's relatives or minor children.

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(7) Prohibiting the defendant from acquiring or possessing any firearm for the duration of the order, ordering the defendant totemporarily relinquish to the sheriff or the appropriate law enforcement agency any firearms under the defendant's possessionor control, and requiring the defendant to relinquish to the sheriff or the appropriate law enforcement agency any firearmlicense issued under section 6108.3 (relating to relinquishment to third party for safekeeping) or 18 Pa.C.S. § 6106 (relatingto firearms not to be carried without a license) or 6109 (relating to licenses) the defendant may possess. The court may alsoorder the defendant to relinquish the defendant's other weapons or ammunition that have been used or been threatened to beused in an incident of abuse against the plaintiff or the minor children. A copy of the court's order shall be transmitted to thechief or head of the appropriate law enforcement agency and to the sheriff of the county of which the defendant is a resident.When relinquishment is ordered, the following shall apply:

(i)(A) The court's order shall require the defendant to relinquish such firearms, other weapons, ammunition and anyfirearm license pursuant to the provisions of this chapter within 24 hours of service of a temporary order or the entry ofa final order or the close of the next business day as necessary by closure of the sheriffs' offices, except for cause shownat the hearing, in which case the court shall specify the time for relinquishment of any or all of the defendant's firearms.

(B) A defendant subject to a temporary order requiring the relinquishment of firearms, other weapons or ammunitionshall, in lieu of relinquishing specific firearms, other weapons or ammunition which cannot reasonably be retrievedwithin the time for relinquishment in clause (A) due to their current location, provide the sheriff or the appropriate lawenforcement agency with an affidavit listing the firearms, other weapons or ammunition and their current location. If thedefendant, within the time for relinquishment in clause (A), fails to provide the affidavit or fails to relinquish, pursuantto this chapter, any firearms, other weapons or ammunition ordered to be relinquished which are not specified in theaffidavit, the sheriff or the appropriate law enforcement agency shall, at a minimum, provide immediate notice to thecourt, the plaintiff and appropriate law enforcement authorities. The defendant shall not possess any firearms, otherweapons or ammunition specifically listed in the affidavit provided to the sheriff or the appropriate law enforcementagency pursuant to this clause for the duration of the temporary order.

(C) As used in this subparagraph, the term “cause” shall be limited to facts relating to the inability of the defendant toretrieve a specific firearm within 24 hours due to the current location of the firearm.

(ii) The court's order shall contain a list of any firearm, other weapon or ammunition ordered relinquished. Upon the entryof a final order, the defendant shall inform the court in what manner the defendant is going to relinquish any firearm,other weapon or ammunition ordered relinquished. Relinquishment may occur pursuant to section 6108.2 (relating torelinquishment for consignment sale, lawful transfer or safekeeping) or 6108.3 or to the sheriff or the appropriate lawenforcement agency pursuant to this paragraph. Where the sheriff or the appropriate law enforcement agency is designated,the sheriff or the appropriate law enforcement agency shall secure custody of the defendant's firearms, other weapons orammunition and any firearm license listed in the court's order for the duration of the order or until otherwise directed bycourt order. In securing custody of the defendant's relinquished firearms, the sheriff or the appropriate law enforcementagency shall comply with 18 Pa.C.S. § 6105(f)(4) (relating to persons not to possess, use, manufacture, control, sell ortransfer firearms). In securing custody of the defendant's other weapons and ammunition, the sheriff or the appropriatelaw enforcement agency shall provide the defendant with a signed and dated written receipt which shall include a detaileddescription of the other weapon or ammunition and its condition. The court shall inform the defendant that firearms,other weapons or ammunition shall be deemed abandoned when the conditions under 18 Pa.C.S. § 6128(a) (relating toabandonment of firearms, weapons or ammunition) are satisfied and may then be disposed of in accordance with 18 Pa.C.S.§ 6128.

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(iii) The sheriff or the appropriate law enforcement agency shall provide the plaintiff with the name of the person to whichany firearm, other weapon or ammunition was relinquished.

(iv) Unless the defendant has complied with subparagraph (i)(B) or section 6108.2 or 6108.3, if the defendant fails torelinquish any firearm, other weapon, ammunition or firearm license within 24 hours or upon the close of the next businessday due to closure of sheriffs' or appropriate law enforcement agencies' offices or within the time ordered by the courtupon cause being shown at the hearing, the sheriff or the appropriate law enforcement agency shall, at a minimum, provideimmediate notice to the court, the plaintiff and appropriate law enforcement agencies, as appropriate.

(v) Any portion of any order or any petition or other paper which includes a list of any firearm, other weapon or ammunitionordered relinquished shall be kept in the files of the court as a permanent record thereof and withheld from public inspectionexcept:

(A) upon an order of the court granted upon cause shown;

(B) as necessary, by law enforcement and court personnel; or

(C) after redaction of information listing any firearm, other weapon or ammunition.

(vi) As used in this paragraph, the term “defendant's firearms” shall, if the defendant is a licensed firearms dealer, onlyinclude firearms in the defendant's personal firearms collection pursuant to 27 CFR § 478.125a (relating to personalfirearms collection).

(7.1) If the defendant is a licensed firearms dealer, ordering the defendant to follow such restrictions as the court may requireconcerning the conduct of his business, which may include ordering the defendant to relinquish any Federal or State licensefor the sale, manufacture or importation of firearms as well as firearms in the defendant's business inventory. In restricting thedefendant pursuant to this paragraph, the court shall make a reasonable effort to preserve the financial assets of the defendant'sbusiness while fulfilling the goals of this chapter.

(8) Directing the defendant to pay the plaintiff for reasonable losses suffered as a result of the abuse, including medical,dental, relocation and moving expenses; counseling; loss of earnings or support; costs of repair or replacement of real orpersonal property damaged, destroyed or taken by the defendant or at the direction of the defendant; and other out-of-pocketlosses for injuries sustained. In addition to out-of-pocket losses, the court may direct the defendant to pay reasonable attorneyfees. An award under this chapter shall not constitute a bar to litigation for civil damages for injuries sustained from the actsof abuse giving rise to the award or a finding of contempt under this chapter.

(9) Directing the defendant to refrain from stalking or harassing the plaintiff and other designated persons as defined in 18Pa.C.S. §§ 2709 (relating to harassment) and 2709.1 (relating to stalking).

(10) Granting any other appropriate relief sought by the plaintiff.

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(a.1) Final order or agreement.--The following apply:

(1) Any final order must direct the defendant to refrain from abusing, harassing, stalking, threatening or attempting orthreatening to use physical force against the plaintiff or minor children and must order that the defendant is subject to thefirearms, other weapons or ammunition and firearms license prohibition relinquishment provisions under subsection (a)(7).

(2) A final agreement may direct the defendant to refrain from abusing, harassing, stalking, threatening or attempting orthreatening to use physical force against the plaintiff or minor children and may order that the defendant is subject to thefirearms, other weapons or ammunition and firearms license prohibition and relinquishment provisions under subsection (a)(7).

(b) Identifying information.--Any order issued under this section shall, where furnished by either party, specify the SocialSecurity number and date of birth of the defendant.

(c) Mutual orders of protection.--Mutual orders of protection shall not be awarded unless both parties have filed timely writtenpetitions, complied with service requirements under section 6106 (relating to commencement of proceedings) and are eligiblefor protection under this chapter. The court shall make separate findings and, where issuing orders on behalf of both petitioners,enter separate orders.

(d) Duration and amendment of order or agreement.--A protection order or approved consent agreement shall be for a fixedperiod of time not to exceed three years. The court may amend its order or agreement at any time upon subsequent petitionfiled by either party.

(e) Extension of protection orders.--

(1) An extension of a protection order may be granted:

(i) Where the court finds, after a duly filed petition, notice to the defendant and a hearing, in accordance with the proceduresset forth in sections 6106 and 6107, that the defendant committed one or more acts of abuse subsequent to the entry ofthe final order or that the defendant engaged in a pattern or practice that indicates continued risk of harm to the plaintiffor minor child.

(ii) When a contempt petition or charge has been filed with the court or with a hearing officer in Philadelphia County, but thehearing has not occurred before the expiration of the protection order, the order shall be extended, at a minimum, until thedisposition of the contempt petition and may be extended for another term beyond the disposition of the contempt petition.

(iii) If the plaintiff files a petition for an extension of the order and the defendant is or was incarcerated and will be releasedfrom custody in the next 90 days or has been released from custody within the past 90 days. The plaintiff does not needto show that the defendant committed one or more acts of abuse subsequent to the entry of the order or that the defendantengaged in a pattern or practice that indicates continued risk of harm to the plaintiff or minor children as set forth insubparagraph (i).

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(2) Service of an extended order shall be made in accordance with section 6109 (relating to service of orders).

(3) There shall be no limitation on the number of extensions that may be granted.

(f) Support procedure.--The domestic relations section shall enforce any support award in a protection order where the plaintifffiles a complaint for support under subsection (a)(5).

(g) Notice.--Notice shall be given to the defendant, in orders issued under this section, stating that violations of an order willsubject the defendant to arrest under section 6113 (relating to arrest for violation of order) or contempt of court under section6114 (relating to contempt for violation of order or agreement). Resumption of coresidency on the part of the plaintiff anddefendant shall not nullify the provisions of the court order.

(h) Title to real property unaffected.--No order or agreement under this chapter shall in any manner affect title to any realproperty.

(i) Third parties and affidavits.--A court requiring relinquishment of firearms under this section shall provide for the hearingof petitions by third parties who request the return of a firearm relinquished by the defendant under subsection (a)(7). Thefollowing apply:

(1) A third party claiming to be the lawful owner of a firearm relinquished by the defendant under subsection (a)(7) mayrequest the return of the firearm by providing proof of ownership and a sworn affidavit.

(2) The affidavit under paragraph (1) must affirm all of the following:

(i) The third party who is the lawful owner will not intentionally or knowingly return to the defendant the firearm or allowaccess to the firearm by the defendant.

(ii) The third party who is the lawful owner understands that violating subparagraph (i) constitutes a misdemeanor of thesecond degree under 18 Pa.C.S. Ch. 61 (relating to firearms and other dangerous articles).

(iii) If the third party who is the lawful owner is a family or household member of the defendant, any firearm returnedunder this section must be stored in a gun safe to which the defendant does not have access and will not be permitted toaccess, or stored in a location outside the third party's home to which the defendant does not have access.

(3) If the court orders the return of a firearm under this section, prior to the return of the firearm, the sheriff shall independentlyconfirm that the person seeking relief under this section is legally eligible to possess firearms under Federal and State law.The sheriff shall conduct the background check as soon as practicable after the court enters an order under this section.

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Credits1990, Dec. 19, P.L. 1240, No. 206, § 2, effective in 90 days. Amended 1993, June 23, P.L. 124, No. 28, § 6, imd. effective;1994, Oct. 6, P.L. 574, No. 85, § 1, effective in 60 days; 1997, Dec. 19, P.L 549, No. 58, § 12, effective in 60 days; 2000, May10, P.L. 35, No. 10, imd. effective; 2002, Dec. 9, P.L. 1759, No. 218, § 7, effective in 60 days; 2005, Nov. 10, P.L. 335, No. 66,§ 8, effective in 180 days [May 9, 2006]; 2018, Oct. 12, P.L. 519, No. 79, § 6, effective in 180 days [April 10, 2019].

Notes of Decisions (93)

23 Pa.C.S.A. § 6108, PA ST 23 Pa.C.S.A. § 6108Current through 2019 Regular Session Act 75. Some statute sections may be more current, see credits for details.

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§ 5424. Temporary emergency jurisdiction, PA ST 23 Pa.C.S.A. § 5424

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Purdon's Pennsylvania Statutes and Consolidated StatutesTitle 23 Pa.C.S.A. Domestic Relations (Refs & Annos)

Part VI. Children and MinorsChapter 54. Uniform Child Custody Jurisdiction and Enforcement (Refs & Annos)

Subchapter B. Jurisdiction (Refs & Annos)

23 Pa.C.S.A. § 5424

§ 5424. Temporary emergency jurisdiction

Effective: August 16, 2004Currentness

(a) General rule.--A court of this Commonwealth has temporary emergency jurisdiction if the child is present in thisCommonwealth and the child has been abandoned or it is necessary in an emergency to protect the child because the child ora sibling or parent of the child is subjected to or threatened with mistreatment or abuse.

(b) No previous custody determination or proceeding.--If there is no previous child custody determination that is entitled tobe enforced under this chapter and a child custody proceeding has not been commenced in a court of a state having jurisdictionunder sections 5421 (relating to initial child custody jurisdiction) through 5423 (relating to jurisdiction to modify determination),a child custody determination made under this section remains in effect until an order is obtained from a court of a state havingjurisdiction under sections 5421 through 5423. If a child custody proceeding has not been or is not commenced in a court of astate having jurisdiction under sections 5421 through 5423, a child custody determination made under this section becomes afinal determination if it so provides and this Commonwealth becomes the home state of the child.

(c) Previous custody determination or proceeding.--If there is a previous child custody determination that is entitled to beenforced under this chapter or a child custody proceeding has been commenced in a court of a state having jurisdiction undersections 5421 through 5423, any order issued by a court of this Commonwealth under this section must specify in the order aperiod that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdictionunder sections 5421 through 5423. The order issued in this Commonwealth remains in effect until an order is obtained fromthe other state within the period specified or the period expires.

(d) Mandatory communication between courts.--A court of this Commonwealth which has been asked to make a childcustody determination under this section, upon being informed that a child custody proceeding has been commenced in or achild custody determination has been made by a court of a state having jurisdiction under sections 5421 through 5423, shallimmediately communicate with the other court. A court of this Commonwealth which is exercising jurisdiction pursuant tosections 5421 through 5423, upon being informed that a child custody proceeding has been commenced in or a child custodydetermination has been made by a court of another state under a statute similar to this section, shall immediately communicatewith the court of that state to resolve the emergency, protect the safety of the parties and the child and determine a period forthe duration of the temporary order.

Credits2004, June 15, P.L. 236, No. 39, § 3, effective in 60 days [Aug. 16, 2004].

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Editors' Notes

UNIFORM LAW COMMENT

The provisions of this section are an elaboration of what was formerly section 3(a)(3) of the UCCJA. It remains, asProfessor Bodenheimer's comments to that section noted, “an extraordinary jurisdiction reserved for extraordinarycircumstances.”

This section codifies and clarifies several aspects of what has become common practice in emergency jurisdictioncases under the UCCJA and PKPA. First, a court may take jurisdiction to protect the child even though it can claimneither home state nor significant connection jurisdiction. Second, the duties of states to recognize, enforce and notmodify a custody determination of another state do not take precedence over the need to enter a temporary emergencyorder to protect the child.

Third, a custody determination made under the emergency jurisdiction provisions of this section is a temporary order.The purpose of the order is to protect the child until the state that has jurisdiction under sections 201--203 (sections5421 through 5423) enters an order.

Under certain circumstances, however, subsection (b) provides that an emergency custody determination may becomea final custody determination. If there is no existing custody determination, and no custody proceeding is filed in astate with jurisdiction under sections 201--203 (sections 5421 through 5423), an emergency custody determinationmade under this section becomes a final determination, if it so provides, when the state that issues the order becomesthe home state of the child.

Subsection (c) is concerned with the temporary nature of the order when there exists a prior custody order that isentitled to be enforced under this Act or when a subsequent custody proceeding is filed in a state with jurisdictionunder sections 201--203 (sections 5421 through 5423). Subsection (c) allows the temporary order to remain in effectonly so long as is necessary for the person who obtained the determination under this section to present a case andobtain an order from the state with jurisdiction under sections 201--203 (sections 5421 through 5423). That timeperiod must be specified in the order. If there is an existing order by a state with jurisdiction under sections 201--203(sections 5421 through 5423), that order need not be reconfirmed. The temporary emergency determination wouldlapse by its own terms at the end of the specified period or when an order is obtained from the court with jurisdictionunder sections 201--203 (sections 5421 through 5423). The court with appropriate jurisdiction also may decide, underthe provisions of 207 (section 5427), that the court that entered the emergency order is in a better position to addressthe safety of the person who obtained the emergency order, or the child, and decline jurisdiction under section 207(section 5427).

Any hearing in the state with jurisdiction under sections 201--203 (sections 5421 through 5423) on the temporaryemergency determination is subject to the provisions of sections 111 and 112 (sections 5411 and 5412). These sectionsfacilitate the presentation of testimony and evidence taken out of state. If there is a concern that the person obtaining thetemporary emergency determination under this section would be in danger upon returning to the state with jurisdictionunder sections 201--203 (sections 5421 through 5423), these provisions should be used.

Subsection (d) requires communication between the court of the state that is exercising jurisdiction under this sectionand the court of another state that is exercising jurisdiction under sections 201--203 (sections 5421 through 5423).The pleading rules of section 209 (section 5429) apply fully to determinations made under this section. Therefore,a person seeking a temporary emergency custody determination is required to inform the court pursuant to section209(d) (section 5429(d)) of any proceeding concerning the child that has been commenced elsewhere. The personcommencing the custody proceeding under sections 201--203 (sections 5421 through 5423) is required under section

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209(a) (section 5429(a)) to inform the court about the temporary emergency proceeding. These pleading requirementsare to be strictly followed so that the courts are able to resolve the emergency, protect the safety of the parties and thechild, and determine a period for the duration of the temporary order.

Relationship to the PKPA. The definition of emergency has been modified to harmonize it with the PKPA. ThePKPA's definition of emergency jurisdiction does not use the term “neglect.” It defines an emergency as “mistreatmentor abuse.” Therefore “neglect” has been eliminated as a basis for the assumption of temporary emergency jurisdiction.Neglect is so elastic a concept that it could justify taking emergency jurisdiction in a wide variety of cases. Under thePKPA, if a state exercised temporary emergency jurisdiction based on a finding that the child was neglected withouta finding of mistreatment or abuse, the order would not be entitled to federal enforcement in other states.

Relationship to protective order proceedings. The UCCJA and the PKPA were enacted long before the advent ofstate procedures on the use of protective orders to alleviate problems of domestic violence. Issues of custody andvisitation often arise within the context of protective order proceedings since the protective order is often invoked tokeep one parent away from the other parent and the children when there is a threat of violence. This Act recognizesthat a protective order proceeding will often be the procedural vehicle for invoking jurisdiction by authorizing a courtto assume temporary emergency jurisdiction when the child's parent or sibling has been subjected to or threatenedwith mistreatment or abuse.

In order for a protective order that contains a custody determination to be enforceable in another state it must complywith the provisions of this Act and the PKPA. Although the Violence Against Women's Act (VAWA), 18 U.S.C. §2265, does provide an independent basis for the granting of full faith and credit to protective orders, it expresslyexcludes “custody” orders from the definition of “protective order,” 22 U.S.C. § 2266.

Many states authorize the issuance of protective orders in an emergency without notice and hearing. This Act doesnot address the propriety of that procedure. It is left to local law to determine the circumstances under which suchan order could be issued, and the type of notice that is required, in a case without an interstate element. However,an order issued after the assumption of temporary emergency jurisdiction is entitled to interstate enforcement andnonmodification under this Act and the PKPA only if there has been notice and a reasonable opportunity to be heardas set out in section 205 (section 5425). Although VAWA does require that full faith and credit be accorded to ex parteprotective orders if notice will be given and there will be a reasonable opportunity to be heard, it does not include a“custody” order within the definition of “protective order.”

VAWA does play an important role in determining whether an emergency exists. That Act requires a court to give fullfaith and credit to a protective order issued in another state if the order is made in accordance with the VAWA. Thiswould include those findings of fact contained in the order. When a court is deciding whether an emergency existsunder this section, it may not relitigate the existence of those factual findings.

Notes of Decisions (5)

23 Pa.C.S.A. § 5424, PA ST 23 Pa.C.S.A. § 5424Current through 2019 Regular Session Act 75. Some statute sections may be more current, see credits for details.

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