Viewer Discretion Advised: Interim Custody Orders in Light of EB V. DB

IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA FAMILY DIVISION

Washington Redskins, FD 6X SUPERBOWL CHAMPYINZ

Plaintiff,

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

209 A.3d 451 Affirmed in part, vacated in part, and remanded. Superior Court of Pennsylvania. Procedural Posture(s): On Appeal; Motion to Modify E.B., Appellee Custody; Other; Motion for Contempt. v. D.B., Appellant West Headnotes (17) No. 1080 WDA 2018 | Argued December 5, 2018 [1] Appeal and Error | Want of Actual Controversy Filed May 6, 2019 The Superior Court will decide questions that otherwise have been rendered moot when one or Synopsis more of the following exceptions to the mootness Background: Mother of child filed a petition seeking primary doctrine apply: (1) the case involves a question custody of child. Father filed a counter-petition seeking to of great public importance, (2) the question enforce a shared custody provision in a marriage settlement presented is capable of repetition and apt to elude agreement and to prevent mother from relocating with child, appellate review, or (3) a party to the controversy as well as a counterclaim for primary custody. The Court will suffer some detriment due to the decision of of Common Pleas, Allegheny County, Family Court, No. the trial court. FD 04-008554-009, Daniel D. Regan, J., entered an order decreasing the number of days father exercised physical 1 Cases that cite this headnote custody of child. Father appealed the final order and an interim order denying motions for special relief. [2] Child Custody Mootness of issues Modification of custody schedule by trial court Holdings: The Superior Court, No. 1080 WDA 2018, through an interim order, which was an issue Strassburger, J., held that: rendered moot by a final order in child custody dispute between mother and father, was an issue [1] Superior Court would consider merits of challenge to capable of repetition and apt to elude appellate interim order modifying custody schedule; review, and thus Superior Court would consider merits of father's challenge to interim order on [2] trial court's entering a temporary, interim order modifying appeal; case history suggested that mother and custody without a hearing or notice to father was abuse of father were likely to continually litigate aspects discretion; of their custody arrangement, and the trial court might again try to resolve their issues without [3] Superior Court could not vacate trial court's interim order; conducting a full trial.

[4] court was entitled to give significant weight to child's 1 Cases that cite this headnote preference in modifying custody; [3] Child Custody [5] trial court did not make proper findings in denying father's Operation and Effect motion to hold mother in contempt; Child Custody Welfare and best interest of child [6] trial court improperly used a generic form order; and All custody awards are temporary insofar as [7] father was entitled to a reopening of the record. they are subject to modification by an ensuing court order any time that it promotes the child's

best interest; thus, by force of circumstances, no Superior Court could not provide remedy award of child custody is permanent regardless sought by father and vacate trial court's interim of whether the order is styled as interim or final. order modifying custody, which was improperly entered without a hearing in custody dispute between mother and father; Superior Court could [4] Constitutional Law not eliminate previous proceedings as though Notice and Hearing they had not occurred and was limited to the sole The fundamental requirement of due process is concern of the best interests of the child. 23 the opportunity to be heard at a meaningful time Pa. Cons. Stat. Ann. § 5328(a). and in a meaningful manner. U.S. Const. Amend. 14. [8] Child Custody Child's preference [5] Constitutional Law Trial court was entitled to give significant Witnesses; confrontation and cross- weight to child's preference in modifying child examination custody arrangement to decrease the number In almost every setting where important of days father exercised physical custody of decisions turn on questions of fact, due process child; although father expressed concerns about requires an opportunity to confront and cross- mother's conduct and rearing of child, the child examine witnesses. U.S. Const. Amend. 14. was 16 years old and child was already spending a significant amount of time in mother's custody prior to court's order. 23 Pa. Cons. Stat. Ann. [6] Child Custody § 5328(a). Process Child Custody 1 Cases that cite this headnote Hearing and Determination Trial court's entering a temporary, interim order [9] Child Custody modifying custody without a hearing or notice to Grounds and Factors in General father was abuse of discretion in child custody The Child Custody Act requires trial courts to dispute between mother and father; although consider all statutory factors to the extent that the trial could had the authority to enter an interim order, trial court was not presented with an factors are relevant. 23 Pa. Cons. Stat. Ann. emergency or apparent need to modify custody § 5328(a). to serve child's best interests, mother and father had a long-standing custody arrangement that had been litigated repeatedly, and there was no [10] Child Custody need to alter the status quo of parties' custody Welfare and best interest of child arrangement without notice and an opportunity It is within the trial court's purview as the finder of fact to determine which best interest factors to be heard after full preparation. ; 23 Pa. are most salient and critical in each particular Cons. Stat. Ann. § 5323(b); Pa. R. Civ. P. 1915.13. child custody case. 23 Pa. Cons. Stat. Ann. § 5328(a). 1 Cases that cite this headnote

[7] Child Custody [11] Child Custody Determination and disposition of cause Child's preference of custodian

For purposes of a child custody determination, the weight to be accorded a child's preference varies with the age, maturity, and intelligence of [15] Contempt that child, together with the reasons given for Review the preference; moreover, as children grow older, Appellate review of contempt orders is limited more weight must be given to the preference of to determining whether the trial court abused its the child. 23 Pa. Cons. Stat. Ann. § 5328(a) discretion. (7).

1 Cases that cite this headnote [16] Child Custody Decision and findings by court [12] Child Custody Trial court improperly used a generic form order Child's preference of custodian that was not specific to the needs of the parties In a child custody matter, where the households and child in custody dispute, in which trial court of both parents were equally suitable, a child's entered an order decreasing the number of days preference to live with one parent could not but father exercised physical custody of child; court tip the evidentiary scale in favor of that parent. failed to offer any explanation for the summary revocation of prior orders and simply justified 23 Pa. Cons. Stat. Ann. § 5328(a)(7). its use of its power to modify temporary custody arrangements. Pa. R. Civ. P. 1915.13.

[13] Child Custody Review [17] Child Custody In a child custody matter, it is not the Superior Operation and Effect Court's function to determine whether the trial Father was entitled to a reopening of the record court reached the “right” decision; rather, the in child custody dispute to consider father's after- Superior Court must consider whether, based trial discovery claim that mother may have been on the evidence presented, given due deference employed out-of-state; father's motion brought to the trial court's weight and credibility after-discovered evidence to court's attention determinations, the trial court erred or abused its while the matter was still pending, and record discretion in awarding custody to the prevailing suggested that court ignored father's motion until party. after it issued its final order, and then denied it summarily, and thus court's order was not an interlocutory order addressing an entirely [14] Child Custody separate matter, as trial court declared. Hearing Trial court did not make proper findings in denying father's motion to hold mother in contempt in custody dispute for mother's alleged noncompliance with existing court orders; court *454 Appeal from the Order Entered June 25, 2018 in the was required to include a finding as to Court of Common Pleas of Allegheny County, Family Court whether or not the evidence presented by at No(s): FD 04-008554-009, Daniel D. Regan, J. father demonstrated contempt by mother, and if court did find contempt, court was required Attorneys and Law Firms to determine an appropriate sanction or devise Robin L. Frank, Pittsburgh, for appellant. a custody arrangement that was in child's best interest but also specifically minimized Robert J. Colaizzi, Pittsburgh, for appellee. contemptuous behavior in the future.

After multiple delays, the cross-petitions for custody were BEFORE: SHOGAN , J., KUNSELMAN , J. and eventually resolved by a July 3, 2007 consent order. Pursuant STRASSBURGER, J. * to the terms of that consent order, Mother and Father shared legal and physical custody of Child, with each exercising Opinion physical custody on a two-week basis. In addition, each parent was permitted one overnight per week during his or her non- OPINION BY STRASSBURGER, J.: custodial period upon request and 24 hours' notice. Further, D.B. (Father) appeals from the order entered June 25, 2018, the custodial parent was required to provide the non-custodial in the Court of Common Pleas of Allegheny County, which parent with the right of first refusal when the custodial parent decreased the number of days Father exercised physical was unavailable to care for Child. custody of his daughter, K.B. (Child), who was born in October 2002 to Father and E.B. (Mother). Father also In April 2008, Father filed a petition to reinstate his complaint challenges the trial court's August 31, 2017 interim order and for primary legal and physical custody and for special relief the court's denial of his motions for special relief in March seeking entry of an interim order, citing concerns about 1, 2018 and July 2, 2018 orders. Upon review, we affirm Child's encopresis. 2 On July 24, 2008, the trial court entered the August 31, 2017 order; vacate the March 1, 2018 order an interim order directing the parents' participation in co- summarily refusing to reinstate all prior orders; vacate the parenting counseling and Child's enrollment in kindergarten June 25, 2018 order in part and affirm in part; vacate the July in Plum School District where both parties resided. Father's 2, 2018 order; and remand for proceedings consistent with petition was resolved by an October 21, 2008 consent order, this opinion. in which the parties agreed, inter alia, that Father would exercise physical custody for approximately two-thirds of We summarize the relevant facts and extended procedural the time during the school year, and the parties would share history of this case as follows. Mother and Father married custody during the summer. This arrangement resulted in in April 2000, and divorced in March 2005. Child was Father having custody of Child for 19 days each month during born during the marriage, and Father and Mother have been the school year and Mother having custody of Child for the engaged in continual litigation regarding custody of Child remaining days. since their separation when she was two years old. In 2012, disputes arose over legal custody, prompting Father Initially, the parties shared custody pursuant to their 2004 to file a petition to modify the October 21, 2008 order marriage settlement agreement. In May 2005, Mother filed in an attempt to obtain primary legal custody. Following a petition seeking primary custody of Child. In response, Father's petition, the trial court entered a series of orders Father filed a counter-petition seeking to enforce the shared addressing disputes over Child's schooling and medical care custody provision in the marriage settlement agreement and and continued Father's petition generally. to prevent Mother from relocating to Virginia with Child. He also presented a counterclaim for primary custody. In 2014, Father filed a motion for special relief requesting permission to change Child's school district in anticipation Via a May 23, 2005 order, the trial court prohibited Mother of purchasing a new house. Mother responded by filing a from relocating with Child or exercising custody of Child in petition to modify custody, seeking 50/50 physical custody Virginia without mutual agreement of the parties or leave of and an order for Child to remain in the Plum School District. court. While the cross-custody petitions were still pending, Following a hearing regarding school choice, the trial court Father filed a motion for contempt, averring that Mother took ordered the parties to continue sharing legal custody, but Child to Virginia in violation of the May 23, 2005 order. granted Mother the authority to choose Child's school. Father Following a hearing in August 2005, the trial court found appealed, and this Court affirmed the trial court's order Mother to be in contempt and ordered *455 her to refrain in 2015. D.B. v. E.B., 118 A.3d 450 (Pa. Super. 2015) from taking Child outside Allegheny County for more than (unpublished memorandum). three overnights during Mother's two-week custody periods without Father's prior written agreement. 1 Meanwhile, while the school-choice appeal was being resolved by this Court, Father filed a counter-petition to modify physical custody, and requested that the court increase

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 E.B. v. D.B., 209 A.3d 451 (2019) 2019 PA Super 146 his custodial days because Mother allegedly left Child with On November 16, 2016, the trial court entered an order other caregivers frequently during her custody period and finding Mother in contempt of the July 2, 2007, October did not participate in Child's extracurricular activities. Father 21, 2008, June 3, 2014, and October 16, 2014 court also filed a petition for contempt regarding a range of issues. orders. 3 It permitted Mother to purge the contempt by These matters were resolved by an *456 October 16, 2014 identifying co-habitants and caregivers; communicating with consent order which, inter alia, specified that: Mother must Father regarding Child's transportation arrangements; ceasing respond to communications from Father regarding custody all communication with Child regarding custody issues; issues within 48 hours; the parties may not discuss custody acknowledging that Father's wife 4 constituted family within matters with Child or use Child as a messenger; Mother must the scope of the right of first-refusal provision; and ceasing refrain from using Child's cell phone for her own personal to disseminate information regarding Father and his wife to texts; Mother must promptly notify Father of changes in third parties via social media. Child's before- or after-school care; and Mother must ensure that Child is prepared for school and extracurricular activities On March 2, 2017, Father filed another motion for contempt, on her custodial days. averring that Mother refused to provide the telephone number of Child's caregivers, including an individual who provided In December 2014, Father filed another petition for contempt, care for a weekend in Harrisburg; refused to bring Child resulting in a December 14, 2014 interim order enjoining over to Father's house to practice her harp; obtained a job Mother from changing Child's school, busing, or child care interview for Child without Father's knowledge or consent; arrangements. Following a hearing, Mother was found in and regularly was not at home when Father *457 dropped contempt, and the trial court ordered prior orders from July 5 2, 2007, October 21, 2008, June 3, 2014, and October Child off at Mother's house. Following a conciliation on 16, 2014, to remain in full force and effect. It also April 13, 2017, the trial court 6 ordered Mother “to continue required the parties to continue to engage in co-parenting to comply with custody order,” but did not specify which one, sessions (followed by a joint memorandum of understanding and stated that Father “preserv[ed his] request for counsel as to what was agreed upon). It permitted Mother to fees.” Order, 4/13/2017, at 2. purge her contempt by refraining from using Child as a messenger regarding custody-related matters; discussing On May 19, 2017, Mother filed the petition for modification custody matters with Child; adhering strictly to the right of custody that is the subject of this appeal. In the petition, she of first-refusal; following the recommendations of Child's requested shared physical custody on a 50/50 basis as opposed medical providers; timely responding to communications to Father having physical custody 2/3 of the time, averring regarding Child; refraining from using Child's cell phone for simply that she believed it to be in Child's best interest and personal purposes; promptly advising Father of changes to could easily be achieved because the parties resided close transportation arrangements for Child; ensuring Child was to each other. Petition for Modification of Custody Order, prepared for school and extracurricular activities; exchanging 5/19/2017, at ¶¶ 3-4. Father filed an answer, and the trial court Child's musical instrument during custodial exchanges; and scheduled the case for a judicial conciliation. giving Father prior notice before withdrawing Child from after-school activities early. The record does not reveal what transpired during the August 31, 2017 judicial conciliation, but subsequently, the trial court On March 17, 2015, Mother and Father entered into another entered an interim order of court (Interim Order), wherein consent order, whereby they agreed, inter alia, that all it ordered the parties to share legal and physical custody of prior orders remained in effect except any provisions that Child. Interim Order, 8/31/2017, at ¶¶ 1-2. Regarding the conflicted with the current order; Mother would coordinate latter, the trial court ordered the parties to agree to a schedule, Child's practice of her harp at Father's home during her and in the event the parties could not agree, the court imposed custodial periods; the parties would refrain from using Child's a 2-2-3 day schedule. 7 Id. at ¶ 2. The order also set forth cell phone; and the parties would adhere to a particular various provisions regarding both legal and physical custody, transportation schedule for Child's school, after-school care, including a provision requiring each party to give the other and extracurricular activities. parent an opportunity to spend time with Child should the custodial parent be unavailable for more than eight hours. Id. at ¶ 16. The order superseded all prior orders of court and

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 E.B. v. D.B., 209 A.3d 451 (2019) 2019 PA Super 146 granted the parties leave to engage in discovery. Id. at ¶¶ 17, Father's discovery requests. Petition for Contempt, 4/24/2018, 20. at ¶ 7. Father also requested an award of counsel fees. The trial court granted Father's request to consolidate the In February 2018, Father filed two motions for special relief. contempt petition with the custody trial on Mother's pending The first sought reinstatement of all prior custody orders. modification of custody petition. Order of Court, 4/24/2018, Father argued that the Interim Order had caused multiple at 1. conflicts because it eliminated all of the previous detailed orders and was a form order not specific to Child's needs. A custody trial was conducted on April 27, 2018. At the Specifically, he averred that prior to the Interim Order, Child hearing, the parties testified on their own behalves, the trial had been bused to Father's house after school to allow Father court interviewed Child in camera, and Father offered 26 to transport Child to her activities even on nights Mother had exhibits into evidence. custody. Since the Interim Order eliminated this arrangement, Mother had not transported Child to certain activities during While the trial court's decision was still pending, Father filed Mother's custody periods. Father's Motion for Special Relief a motion for special relief. 8 In the motion, he informed - A, 2/23/2018, at ¶¶ 16-21. He also averred that since the the court that he recently had learned that the trustee in Interim Order no longer required Mother to coordinate harp Mother's pending Chapter 13 bankruptcy case was pursuing practice for Child, Child had missed 36 days of practice. a wage attachment against Mother's wages from University Id. at ¶¶ 22-24. Finally, he averred that because the Interim of Maryland Capital Region Health, which suggested that Order no longer required Mother to respond to Father within Mother was employed in Maryland. Father's Motion for 48 hours, Mother's communication with Father regarding Special Relief, 7/2/2018, at ¶¶ 7-9. Father then detailed custody matters had suffered greatly. Id. at ¶¶ 26-29. evidence regarding Mother's past history of untruthfulness about her employment schedule and availability to spend *458 In the second motion, Father requested an order time with Child. Id. at ¶¶ 10-15. He requested that the granting him additional custody time with Child when Mother court (1) suspend the Interim Order; (2) require Mother to was unavailable during her custody time, on Child's upcoming produce information regarding her employment in Maryland; days off from school, and for the purpose of accompanying (3) require Mother to meet her burden of demonstrating that Child on a college visit. Specifically, Father averred that he shared custody was in Child's best interest and that Mother learned that Mother had obtained employment in Harrisburg, was actually available to parent Child during her custodial resulting in Mother's leaving Child home alone often. Father's Motion for Special Relief - B, 2/23/2018, at ¶ 14. He period; and (4) award Father counsel fees pursuant to 23 also alleged that Mother willfully failed to disclose her Pa.C.S. § 5339. See generally id. employment at the time of the August 31, 2017 judicial conciliation. Id. at 16-17. On June 19, 2018, Father filed a motion for special relief, requesting that the trial court order Mother, inter alia, to On March 1, 2018, the trial court denied both motions without sign and return travel documentation needed for Child to further explanation, except it permitted Father to take Child travel to Canada with Father and *459 permit Child to on the college visit. Orders of Court, 3/1/2018. stay at her step-grandparents' home during Mother's custody time to facilitate her attendance at harp camp and avoid On April 24, 2018, Father filed a petition for contempt, lengthy transport periods by Father. He also requested that averring that Mother failed to follow the Interim Order by the court award reasonable counsel fees. Father argued that engaging in the following behaviors: (1) failing to ensure Mother has a history of ignoring his requests to facilitate that Father was afforded an adequate opportunity to speak travel arrangements for Child, resulting in the October 16, with Child by telephone during his non-custodial period; (2) 2014 order requiring Mother to execute timely documentation encouraging Child to provide reports about Father and/or his enabling Child to travel. Father requested that the court household to Mother; (3) alienating Child's affections from reinstate this provision, which had been eliminated by the Father; (4) discussing adult issues with Child; (5) failing to Interim Order's supersession of all prior orders. He also offer Father a right of first refusal; (6) failing to provide alleged that Mother ignored his requests and boasted in contact information and other relevant information about an email that she was going to force him to seek judicial Child's caregivers; and (7) failing to provide full responses to intervention, and due to this obdurate and vexatious conduct,

in detail; instead, it stated “[a]ll other pending [m]otions and/ the court should award counsel fees pursuant to 23 Pa.C.S. or [p]etitions in relation to custody are denied.” Id. at 20. § 5339. Motion for Special Relief, 6/18/2018, at ¶¶ 6-34.

*460 Subsequently, the trial court entered an order denying On June 19, 2018, the trial court entered an order requiring Father's motion for special relief regarding Mother's alleged Mother to sign the consent authorizing Child's travel to Maryland employment without explanation except to “see Canada, but denied Father's request for Child to stay with her 10 step-grandparents during all five days of harp camp. Order, [the Final Order].” Order, 7/2/2018, at 2. 6/19/2018, at 1. Instead, the trial court permitted Child to stay with her step-grandparents on Father's custodial days and Father timely filed a notice of appeal on July 23, 2018. Father required Mother to provide timely transportation to and from and the trial court complied with Pa.R.A.P. 1925. 11 Father camp for Child on Mother's custodial days. Id. The trial court raises ten issues for our review. See Father's Brief at 27-29. deferred the issue of Father's request for counsel fees until it decided the modification-of-custody matter. Id. We consider Father's claims mindful of our well-settled standard of review. On June 25, 2018, the trial court issued an order ruling upon Mother's petition for modification of custody and Father's petition for contempt (Final Order). In the Final Order, the In reviewing a custody order, our trial court analyzed the sixteen custody factors set forth at scope is of the broadest type and 23 Pa.C.S. § 5328(a), and concluded that it was in Child's our standard is abuse of discretion. best interest for Mother and Father to share custody equally. We must accept findings of the Final Order, 6/25/2018, at 7-10. It ordered Mother and Father trial court that are supported by to share legal custody and set forth provisions detailing the competent evidence of record, as requirements of such shared legal custody. Id. at 11-13. our role does not include making independent factual determinations. In Regarding physical custody, the trial court specified that addition, with regard to issues of Father had custody on Mondays and Wednesdays, and every credibility and weight of the evidence, other Friday, Saturday, and Sunday, and Mother had custody we must defer to the presiding trial judge who viewed and assessed the on every Wednesday 9 and Thursday, and every other Friday, witnesses first-hand. However, we Saturday, and Sunday. Id. at 13. Each parent was required are not bound by the trial court's to provide contact information for caregivers used during the deductions or inferences from its parent's respective custody periods. Id. at 13. Each parent factual findings. Ultimately, the test is needed to ensure that Child attended all activities, events, and whether the trial court's conclusions appointments during the parent's custodial time. Id. at 17. are unreasonable as shown by the Transportation was addressed broadly, requiring “the parties evidence of record. We may reject the or [ ] another responsible individual selected by the respective conclusions of the trial court only if parties” to transport Child during custody exchanges. Id. at they involve an error of law, or are 17. Additionally, each party was prohibited from using Child unreasonable in light of the sustainable as an intermediary or encouraging Child to provide reports findings of the trial court. about the other party. Id. at 19. Each non-custodial parent was provided with a right of first refusal in the event that the custodial parent was unavailable for five or more hours. Id. It also prohibited the parties from relocating with Child without V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) adhering to 23 Pa.C.S. § 5337. Id. at 20. (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 an Further, the court specified that the order “supersed[ed] all abuse of discretion, a court's judgment must be “manifestly prior custody orders entered in this matter.” Id. at 20. Finally, unreasonable” as shown by evidence of record). the trial court did not discuss any of the motions or petitions

Upon petition, a trial court may modify a custody order if moot because trial court conducted a hearing before entering it serves the best interests of the child. 23 Pa.C.S. § 5338. a final order). Despite our general rule regarding mootness, Subsection 5328(a) of the Child Custody Act sets forth 16 factors that a court must consider before making any custody determination, including a modification of a custody order. this Court will decide questions that E.D. v. M.P., 33 A.3d 73, 79-80 (Pa. Super. 2011) (citing otherwise have been rendered moot when one or more of the following 23 Pa.C.S. § 5328(a)). exceptions to the mootness doctrine apply: 1) the case involves a question of great public importance, 2) the Issues 1-3: Modification of Custody in Interim Order question presented is capable of The first three issues Father raises relate to the trial court's repetition and apt to elude appellate modification of the parties' custody schedule in the Interim review, or 3) a party to the controversy Order following the judicial conciliation, *461 wherein the will suffer some detriment due to the trial court changed Father's physical custody from primary decision of the trial court. to shared. Father asks us to decide whether the trial court abused its discretion or erred in modifying custody in the Interim Order because (1) modifying the long-standing and oft-litigated custody arrangement without a hearing deprived In re D.A., 801 A.2d 614, 616 (Pa. Super. 2002). Father of due process; (2) modifying custody was not in the best interests of Child; and (3) the trial court did not delineate its reasons for the modification in open court, in the Interim In Plowman v. Plowman, 409 Pa.Super. 143, 597 A.2d Order, or in a written opinion. See Father's Brief at 37-52. 701 (1991), we reviewed the merits of an interlocutory order permitting a mother to relocate with her child despite the Before we address the merits of Father's first three issues, we existence of a later order entered after a full custody hearing. first consider whether the Interim Order was mooted by the We reasoned that the order was reviewable because otherwise entry of the Final Order entered following trial. This Court the relocation order would be likely to evade review due to has held that “we may sua sponte raise the issue of mootness, its interlocutory nature. 12 Id. at 704-05. Since the order as we generally ‘cannot decide moot or abstract questions, nor affected a substantial right of the non-custodial parent's access can we enter a judgment or decree to which effect cannot be to the child and impacted the status quo that would later set the stage for the full custody trial, we concluded that we ought given.’ ” In re L.Z., 91 A.3d 208, 212 (Pa. Super. 2014) to review the *462 proper procedures for entry of such an (en banc), rev'd on other grounds, 631 Pa. 343, 111 A.3d interim order. Id. 1164 (2015).

[1] There is no question that the trial court intended the [2] [3] As in Plowman, we are satisfied that Interim Order to apply on an interim basis until the parties the questions presented concerning the Interim Order conducted discovery and litigated Mother's modification are “capable of repetition and apt to elude appellate petition at trial. See Interim Order, 8/31/2017, at 2, 11. The review.” Id. A custody proceeding, particularly a highly Final Order order then expressly superseded all prior orders, contentious one, continually produces issues that the trial including the Interim Order. Final Order, 6/25/2018, at 20. court must decide on an interlocutory basis. The history of Since the Interim Order is no longer in effect, it seems that this case suggests that these parties are likely to litigate the issues Father presents regarding the Interim Order are continually aspects of their custody arrangement, and the moot. See K.W. v. S.L., 157 A.3d 498, 499 n.1 (Pa. Super. trial court might again try to resolve their issues without 2017) (holding parent's challenge to interim order replaced conducting a full trial. Although the trial court entered the by another interim order was moot); Ramer v. Ramer, 914 Interim Order on an interim basis, that interim basis lasted for A.2d 894, 899 (Pa. Super. 2006) (holding parent's challenge almost ten months during discovery and pre-trial proceedings, to failure to hold a hearing before entering interim order was and ultimately impacted the status quo the trial court had to consider at the custody trial. See J.M. v. K.W., 164 A.3d 1260,

1268-69 (Pa. Super. 2017) (noting that a temporary order The Child Custody Act grants trial courts authority to enter often “forms the de facto status quo regardless of its purported into orders on an interim basis, providing that the court impermanence”). Therefore, because of the importance of “may issue an interim award of custody to a party who has ensuring that trial courts follow correct procedures when standing ... in the manner prescribed by the Pennsylvania entering interlocutory custody orders that have significant Rules of Civil Procedure governing special relief in custody 13 impact on the final custody decision, we will proceed to matters.” 23 Pa.C.S. § 5323(b). In relevant part, the rule the merits. governing special relief provides that “[a]t any time after commencement of the action, the court may on application In response to Mother's petition for modification, the or its own motion grant appropriate interim or special relief. trial court entered an order scheduling the case for a The relief may include, but is not limited to, the award of “judicial custody conciliation.” 14 Order, 5/19/2017, at 1 temporary legal or physical custody[.]” Pa.R.C.P. 1915.13. (capitalization altered). Father argues that this scheduling The official comment explains that the rule is intended to be order did not put him on notice that the trial court would a “broad provision empowering the court to provide special consider modifying “Father's long-standing award of primary relief where appropriate.” Id., Comment. physical custody” at the conciliation, which typically is a pre- cursor to a custody hearing in Allegheny County. Father's [4] [5] However, due process is required during custody Brief at 39. He notes the conciliation merely constituted proceedings. We have previously described due process as a discussion among the trial court and counsel in judicial “a concept incapable of exact definition. Rather, it is a chambers off the record without parties present or an flexible notion which calls for such procedural safeguards as opportunity to present evidence. Id. Thus, Father contends he a particular situation demands to ensure fundamental fairness was *463 “blindsided” by the trial court's issuing sua sponte to a potentially aggrieved litigant.” Plowman, 597 A.2d the Interim Order, which in effect granted the relief Mother at 705. “The fundamental requirement of due process is was seeking in her bare-bones petition for modification the opportunity to be heard at a meaningful time and in a without a full hearing on Father's challenge to same. Id. 39-45. Father argues that granting Mother's relief without a hearing meaningful manner.” Id. (citing Mathews v. Eldridge, violated his right to due process because of the lack of notice 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)). and the lack of an opportunity to be heard. Id. He further This means that “[i]n almost every setting where important contends that the Interim Order “unjustly placed [F]ather in decisions turn on questions of fact, due process requires an the position of having to fight to restore the prior status quo at opportunity to confront and cross-examine witnesses.” Id. the custody trial nearly [8] months later,” resulting in the trial (citation omitted). court's “looking for reasons to justify the interim award that it previously made in [Mother's] favor” and relieving Mother This Court has considered the interplay between the special of her burden of proving that modification was in Child's best relief power of the trial court and due process before. In interest. Id. at 42. Steele, we considered whether a trial court could sua sponte modify a parent's partial custody during a hearing on In its Rule 1925(a) opinion, the trial court defended its Interim a petition for contempt. This Court stated that the appropriate Order by noting that it was entered after the parties had made manner to modify custody is in response to a petition mutual filings regarding modification and after the parties' for modification, but the trial court may modify custody counsel had an opportunity for argument during the judicial temporarily “under appropriate circumstances ... when it is conciliation. Trial Court Opinion, 8/27/2018, at 6. The trial court justified the order by relying upon its power to modify in the best interest of the child to do so.” Steele, 545 A.2d at 378. The basis for the trial court's authority is Rule custody on a temporary basis. Id. (citing Choplosky v. 1915.13, which this Court has characterized as “a means to Choplosky, 400 Pa.Super. 590, 584 A.2d 340 (1990) and bring about emergency relief that [was] traditionally available Steele v. Steele, 376 Pa.Super. 174, 545 A.2d 376 (1988)). *464 under the writ of habeas corpus” in recognition that Finally, without further elaboration, the court stated that “circumstances may change abruptly” in custody matters. modifying the order on an interim basis was in Child's best Id. Therefore, the Steele Court held that it was interest. Id. permissible for the trial court to enter an order temporarily

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 9 E.B. v. D.B., 209 A.3d 451 (2019) 2019 PA Super 146 suspending the prior custody order and requiring the father's only temporarily modified pursuant visits to be supervised due to his “violent and irrational to Pa.R.C.P. 1915.13, our decision might have been different. Such tendencies” until he completed a parenting class. Id. “special relief” may in some cases be appropriate (and necessary) where the Choplosky also involved the entry of a modification order situation is such that, for example, following a contempt hearing. After the trial court sua sponte temporary modification of custody or granted sole legal custody to the mother, the father filed visitation rights would preserve the an appeal contending that the modification in absence of a well-being of the children involved written petition deprived him of his right to due process of while the parties prepare to resolve law. This Court agreed with the father, holding that the court more permanently the question of erred by permanently modifying legal custody without notice where and/or with whom the children and an opportunity to be heard. Choplosky, 584 A.2d at should remain. 342-43. This Court reasoned that

Id. (emphasis in original). [n]either party was on notice that the custody order, upon which More recently, this Court considered whether Rule 1915.13 the contempt proceedings were relief could be entered without a hearing. In M.J.S. v. B.B., predicated, was itself to be at issue 172 A.3d 651 (Pa. Super 2017), the parents had no formal until the “contempt” proceedings custody agreement. After the mother started using drugs, were well underway. The degree the father filed a petition to obtain primary custody of to which the parties were allowed the child. After the trial court granted temporary physical to freely argue facts regarding the custody to the father pending the hearing on his petition, appropriate custody of the children is the child's maternal grandmother filed an emergency petition inconsequential. However unabated or to intervene, averring that she should have primary custody erudite the advocacy, absent adequate because the child had lived with her his entire life. Without a notice or opportunity to prepare, hearing, the trial court rescinded the temporary order granting neither we nor the trial court can the father custody, granted the grandmother's petition to assume that the parties have either intervene, and awarded the grandmother emergency custody sufficiently exposed the relevant facts pending the hearings on the parties' dueling custody petitions. or properly argued their significance. Consequently neither we nor the trial On appeal from the final order awarding custody to maternal court can make an informed, yet grandmother, the father argued that the trial court erred by quintessentially crucial judgment as to entering an interim order without a hearing. This Court whether it was in the best interests of rejected his argument, stating that Rule 1915.13 “does not the children involved to give sole legal establish any specific procedure for the trial court to impose custody to their mother. temporary special relief and, critically, it certainly does not require that the trial court schedule a hearing or *465 listen to argument before special relief is awarded. Indeed, pursuant to Rule 1915.13, the court may grant relief sua sponte.” Id. Id. at 343. at 655. In dictum, this Court then stated that Thus, Steele, Choplosky (albeit in dictum), and M.J.S. all indicate that the trial court had the authority and discretion [h]ad the trial court decided, and pursuant to Rule 1915.13 to enter an interim order of custody had the circumstances required that without a hearing while the parties prepared to litigate more the custody of the children be fully the issue of modification. Notwithstanding the trial

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 10 E.B. v. D.B., 209 A.3d 451 (2019) 2019 PA Super 146 court's general authority to enter an order of interim relief, Mother's contemptuous behavior, culminating in a series of there are limits to a trial court's discretion. See J.M. v. K.W., orders that painstakingly spelled out the details of the parties' 164 A.3d 1260, 1270 (Pa. Super. 2017) (“Under appropriate arrangement. In one swoop, without the benefit of a hearing circumstances, a trial court may modify a custody order where the parties would have had advance notice to prepare temporarily pursuant to Rule 1915.13.”) (emphasis added). and an opportunity to “sufficiently expose[ ] the relevant facts or properly argue[ ] their significance,” Choplosky, 584 In M.J.S., because the parties had no custody agreement, A.2d at 343, the trial court entered an order that was generic some sort of arrangement had to be put in place while the in nature and erased all of the prior orders that were tailored parties litigated the issue of custody on a more long-term to the parties' and Child's needs. basis. Thus, it was reasonable and necessary for the trial court to institute a temporary arrangement as a stopgap during In some circumstances entering an order without notice on litigation. See S.W.D. v. S.A.R., 96 A.3d 396, 405 (Pa. a temporary basis may be necessary to address a child's best Super. 2014) (“A court is given [authority to award custody on interest. The typical case for awarding *466 temporary relief a temporary basis] so that it may address emergency situations without a hearing is where the parents have recently separated and to protect a child until a final hearing can be held and a and custody has never been litigated. That is a far cry from permanent custody order can be entered.”). This Court also the instant case where the parties have been separated for 13 has approved of temporary relief if it would “preserve the years prior to the August 31, 2017 Interim Order, and custody well-being of the children involved while the parties prepare had been litigated ad nauseam over that 13-year period. In this to resolve more permanently the question of where and/or case, it was an abuse of the trial court's discretion to alter the with whom the children should remain.” J.M., 164 A.3d at status quo without notice and an opportunity to be heard after full preparation, without any apparent emergency or change 1270 (quoting Choplosky, 584 A.2d at 343)); see also in circumstances, without any explanation as to why it was Steele, 545 A.2d at 379 (holding temporary modification in Child's best interest, and without considering the effect of of visitation was warranted after trial court received evidence eliminating years of detailed prior orders in exchange for an during a contempt proceeding of the father's inappropriate order not specifically tailored to the parties' and Child's needs. conduct around his children, resulting in the fashioning of an order designed to protect the children until the father took Furthermore, while only temporary, an interim order often steps to change his behavior). has a long-term impact going forward. In other contexts in litigation, status quo is used to refer to “the last actual, [6] In the instant case, however, there was no emergency peaceable and lawful, non-contested status which preceded or apparent urgent need to preserve the well-being of Child. the controversy.” See, e.g., Miceli v. Unemployment Mother's petition simply averred that custody on a 50/50 basis Comp. Bd. of Review, 519 Pa. 515, 549 A.2d 113, 116 was in Child's best interest and could easily be achieved (1988). On the other hand, while our custody cases do not because the parties resided close to each other. Petition for define status quo definitively, in practice because stability is Modification of Custody Order, 5/19/2017, at ¶¶ 3-4. As typically in a child's best interest, once an interim change has discussed supra, a trial court may order temporary relief, but been made on temporary basis, courts are hesitant to change only “under appropriate circumstances ... when it is in the best a child's routine yet again. 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' For example, in Plowman, without a hearing, a trial court long-standing custody arrangement to an equally shared one effectively permitted a mother to relocate to another state in August 2017 was in Child's best interest. However, the with a child on an interim basis pending a full hearing on the trial court offers no explanation as to why that was so, in mother's petition for a custody modification. In determining contravention to 23 Pa.C.S. § 5323(d) (“The court shall that this was unreasonable, this Court stated that delineate the reasons for its decision on the record in open court or in a written opinion or order.”). [t]he lower court was obligated to Moreover, the parties' long-standing custody arrangement entertain a full evidentiary hearing on had been litigated repeatedly, many times in relation to the issue of modification of custody

before allowing even a de facto the mother and child to relocate on modification. The trial court here an interim basis without a hearing] waited over one year before having by eliminating all the proceedings a full evidentiary hearing on mother's that have occurred until this point. custody modification petition. During Our review must be based on the this time period, father's ability to best interests of the child at the time defend his position eroded because the of the present hearing. In custody more time [the child] was allowed to proceedings, the paramount concern is stay in Maryland, the more it could be the welfare of the children[;] all [other] argued that it was in his best interests considerations, including the rights of to remain in Maryland under the the parents, are subordinate to the new status quo. Given the compelling children's physical, intellectual, moral, interests of the non-custodial parent spiritual, and emotional well being. We involved here, the court's delay in cannot ignore the last two years of holding the evidentiary hearing was the child's life in Maryland as though unreasonable. they never occurred. Therefore, we find that the trial court was correct in determining that it would be useless to pass judgment on the prior decision, Plowman, 597 A.2d at 706-07; see also B.K.M. v. but could appropriately consider the J.A.M., 50 A.3d 168, 175 (Pa. Super. 2012) (holding a effect of that decision on the welfare of trial court should have considered how “maintaining the the minor child. status quo” may have been in children's best interests to continue their “stability and continuity” achieved in new country; although mother relocated with children prior to a full hearing, presumption against relocation expressed in 23 Plowman, 597 A.2d at 707. Pa.C.S. § 5337 does not require that the court completely ignore the last two years); J.M., 164 A.3d at 1268 (describing The inability to unring the bell or re-set the clock in custody how the slowness of “the judicial machinery” often turns an cases is why it is all the more paramount for trial courts ostensibly temporary order into a “de facto status quo”). to abide by due process at all times with an eye towards a child's best interest. The very nature of custody cases In this case, instead of Mother's having to prove affirmatively mandates different procedures under different circumstances, at a custody trial that a modification was in Child's best but trial courts should be wary of upending the status quo interest, Mother simply had to point to the new almost-ten- prematurely without substantial justification that the change month-long de facto status quo created by the Interim Order, was warranted by a child's best interest. Accordingly, we leaving Father with the uphill battle of arguing against that conclude that the trial court abused its discretion, but as in new de facto status quo in an attempt to claw back his prior Plowman, because the ultimate polestar is a child's best long-term custody award. interest, we also are constrained not to disturb the Interim Order. [7] Nevertheless, the relief that Father seeks is impossible to achieve. Father asks us to vacate the Interim Order, effectively re-setting the clock back to mid-2017. This is tantamount Issues 4-6, 8: Modification of Custody in the Final Order to “unringing the bell” and rewinding the past two years of Father's fourth through sixth and eighth issues 15 query Child's life as if they never happened. This was the *467 whether the trial court abused its discretion or erred by same problem this Court faced in Plowman: awarding 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 weight we cannot redress this error [i.e., of evidence at trial and contrary to the best interests of Child; another trial judge's decision to permit (6) Mother failed to meet her burden of proving that the

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 12 E.B. v. D.B., 209 A.3d 451 (2019) 2019 PA Super 146 modification was in Child's best interest; and (8) the trial to the preference of the child. As this court failed to consider adequately Mother's past and ongoing Court has recently reaffirmed, where contempt of court in rendering its custody decision in the the households of both parents were Final Order. See Father's Brief at 52-61, 65-67. equally suitable, a child's preference to live with one parent could not but tip [8] Specifically, Father argues that the trial court erred and the evidentiary scale in favor of that abused its discretion by awarding custody to Mother when parent. the trial court found 7 of the 16 custody factors set forth at 23 Pa.C.S. § 5328(a) favored Father, and 8 other factors were neutral or not an issue. Father's Brief at 57. Father B.C.S. v. J.A.S., 994 A.2d 600, 604 (Pa. Super. 2010). contends that the only factor that favored Mother was Child's preference for an equally-shared custody arrangement. Id. It has been said that an older teenage child is like an elephant Father maintains that the trial court was entitled to give weight – she sleeps wherever she wants. While the “Elephant Rule” to Child's preference, but not at the exclusion of all other is not incontrovertible, such as if a teenager's safety were factors, particularly because the households were not equally at risk, or if the other factors strongly demonstrated that a suitable. Id. at 56-61. Father also points to Mother's extensive teenager's preference was against her best interest, courts have history of contemptuous behavior. Id. at 65-67. to recognize the limitations of their power in determining where older teenagers must reside. This is not a case where *468 In its Rule 1925(a) opinion, the trial court noted that a teenager adamantly refused to spend time with one of her it had conducted a full analysis of all 16 factors in the Final parents, but rather, where the teenager requested the time Order. Trial Court Opinion, 8/27/2018, at 8. The trial court to be equally allocated. Furthermore, the trial court found emphasized that the evidence at trial established that both Child, who was 15 years old at the time, 16 to be mature and Mother and Father were likely to attend to Child's daily thoughtful in her desire to split her time equally between her physical, emotional, and developmental needs, and claimed parents. Trial Court Opinion, 8/27/2018, at 8. it was entitled to give great weight to Child's preference to spend equal time with Father and Mother due to her age and [13] Obviously it is impossible to know now if Child's maturity level. Id. preference would have been different had the trial court maintained the status quo until the custody trial. But as [9] [10] [11] [12] Before making an award of custody, we discussed supra , we cannot unring that bell. We also the Child Custody Act requires trial courts to consider all 16 recognize Father's concerns about Mother's conduct and factors set forth at 23 Pa.C.S. § 5328(a) to the extent the rearing of Child. If we were the trial court hearing the evidence firsthand, perhaps we would have weighed the factors are relevant. A.V. v. S.T., 87 A.3d 818, 823 (Pa. factors differently. But “[i]t is not this Court's function to Super. 2014). “It is within the trial court's purview as the determine whether the trial court reached the ‘right’ decision; finder of fact to determine which factors are most salient and rather, we must consider whether, ‘based on the evidence critical in each particular case.” M.J.M. v. M.L.G., 63 A.3d presented, given due deference to the trial court's weight and 331, 339 (Pa. Super. 2013). One of the factors a trial court credibility determinations,’ the trial court erred or abused its must consider when making any award of custody is “[t]he discretion in awarding custody to the prevailing party.” King well-reasoned preference of the child, based on the child's v. King, 889 A.2d 630, 632 (Pa. Super. 2005). Child was maturity and judgment.” 23 Pa.C.S. § 5328(a)(7). already spending a significant amount of time in Mother's custody prior to the Interim Order. Under an abuse of discretion standard, we cannot conclude that the trial court was manifestly unreasonable by adding approximately four The weight to be accorded a child's more days per month to Mother's *469 custody time in light preference varies with the age, of a teenage child who preferred that the time be equal. maturity and intelligence of that child, together with the reasons given for the preference. Moreover, as children Issue 7: Father's Petitions for Contempt grow older, more weight must be given

[14] [15] Father's seventh issue asks us to decide whether had used alcohol in front of the child, operated a motor the trial court abused its discretion or erred by failing to vehicle with the child as a passenger, and failed to abide by hold Mother in contempt for her noncompliance with existing certain communication requirements, all of which were in court orders. See Father's Brief at 62-65. direct violation of prior orders. Nevertheless, the trial court declined to award sanctions. Instead, the trial court modified Our review of contempt orders is limited to determining the custody order to award the father primary legal and whether the trial court abused its discretion. We have physical custody and required all of the mother's visitation described judicial discretion regarding contempt orders as to occur near the father. This Court affirmed the trial court's follows. action, noting that the trial court “prudently anticipated future noncompliance on [the mother's] part” and the “stringent” Judicial discretion requires action in conformity with modification “obviated the need for finding [the mother] law on facts and circumstances before the trial court in contempt of the prior custody order, while adequately after hearing and consideration. Consequently, the court addressing [the father's] legitimate concerns for [the *470 abuses its discretion if, in resolving the issue for decision, it misapplies the law or exercises its discretion child's] safety going forward.” Id. at 929-30. in a manner lacking reason. Similarly, the trial court abuses its discretion if it does not follow legal procedure. We do not find this case to be akin to Flannery. The trial K.M.G. v. H.M.W., 171 A.3d 839, 844–45 (Pa. Super. 2017) court implied that Mother did violate prior court orders in its (citations omitted). opinion, but did not address any of the evidence offered by Father of Mother's behavior or rule on whether or not Mother In its Final Order, the trial court mentioned Father's contempt engaged in the behavior of which Father accuses her. Other petitions, but did not address them specifically other than to than re-stating some of the restrictions that were in place state summarily that it was dismissing all pending motions previously, the trial court failed to address Father's concerns. and petitions. Final Order, 6/25/2018, at 23. In its Rule This is wholly different than Flannery, where the court 1925(a) opinion, the trial court justified its dismissal by specifically changed the custody arrangement to minimize stating that it was not required to make a finding of contempt problems in the future. even where the record may have supported such a finding 17 because the problems were resolved by the Final Order. We find this case to be more akin to N.A.M. v. M.P.W., Trial Court Opinion, 8/27/2018, at 9. 168 A.3d 256 (Pa. Super. 2017). In that case, the record demonstrated that the mother flagrantly disobeyed court In response, Father argues that not only did the trial court orders for ten years. The trial court held the mother in increase Mother's custody time despite her failure to abide contempt, but refused to impose sanctions and admonished by past custody orders, but such “expansion also increases the mother instead. On appeal, we held that “[t]he trial court's the likelihood of future contempt by virtue of her having refusal to impose sanctions not only permit[ed the mother] to more time with [Child.]” Father's Brief at 63. Father notes disobey custody orders, but it reward[ed] her for doing so by that the trial court failed to explain its dismissal of his May allowing her to determine matters of custody without adverse 19, 2017 and April 24, 2018 contempt petitions in its Final consequences and without regard to [the father's] parental Order. Id. Moreover, he contends that the Final Order does not “remedy the instances of contempt Father described in rights.” Id. at 261-62. We concluded that, “in failing to his contempt petitions, such as Mother's failure to facilitate impose any sanction, the trial court exercised its discretion telephone contact between [Child] and Father, her failure to without reason, which constitutes an abuse of discretion.” follow the right of first refusal [provision], and her attempts Id. to alienate [Child's] affections from Father[.]” Id. at 64.

As in N.A.M., we conclude that by summarily denying In addition to citing Hill, the trial court relies upon Father's contempt petitions, the trial court exercised its Flannery v. Iberti, 763 A.2d 927 (Pa. Super. 2000). discretion without reason. Therefore, we remand this case Trial Court Opinion, 8/25/2018, at 9. In that case, the trial and direct the trial court on remand to rule specifically court made a finding of contempt against the mother, who on Father's May 19, 2017 and April 24, 2018 contempt

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 14 E.B. v. D.B., 209 A.3d 451 (2019) 2019 PA Super 146 petitions. The court shall include a finding as to whether or the trial court seemed to credit and acknowledge Father's not the evidence presented by Father at the April 27, 2018 concerns regarding Mother's out-of-town employment in hearing demonstrated contempt by Mother. If it did, the trial Harrisburg, which left Child unattended during significant court must then determine an appropriate sanction, or devise periods during Mother's custody. Id. at 74. Father maintains a custody arrangement that is in Child's best interest but that after trial, but while the trial court's decision was still also specifically minimizes each instance of contemptuous pending, he learned through Mother's bankruptcy matter that behavior in the future. 18 she had wages from the University of Maryland, suggesting that she was employed out of state. Id. According to Father, the trial court declined to rule on his petition for special relief Issue 9: Nullification of Prior Orders during motions court, failed to address Mother's possible [16] In his ninth issue, Father argues that the trial court out-of-state employment in the Final Order, and withheld its abused its discretion by using a generic form order that decision until after it issued the Final Order, where it denied was not specific to the needs of the parties and Child in Father's motion without explanation. Id. at 75. the Interim Order and Final Order. Father's Brief at 67-72. He argues that without explanation, the Interim Order and Furthermore, Father disagrees with the trial court's Final Order superseded all prior orders, including many characterization of the July 2, 2018 order ruling on his orders that had very detailed provisions regarding custody motion as interlocutory. Id. at 77-78. Father maintains that of Child. Id. He points to his testimony at the hearing that because the order wholly related to Mother's modification described the problems the Interim Order created in the areas petition, which was still pending at the time Father presented of busing, the holiday schedule, Child's activities, the parties' the motion, the order cannot be considered interlocutory communications, and Child's cell phone communications. Id. and should have been addressed at the time of the motion at 71. presentation or as part of the Final Order. Id.

The trial court failed to offer any explanation for the In effect, Father's motion brought after-discovered evidence summary revocation of prior orders in its Interim Order, to the trial court's attention while the matter was still pending. its March 1, 2018 order denying Father's February 23, The record suggests that the trial court ignored Father's 2018 motion for special relief, and the Final Order. In the motion until after it issued its Final Order, and then denied it Rule 1925(a) opinion, the trial court simply adopted its summarily. Under these circumstances, we cannot agree that reasoning set forth in its discussion of Father's first three the order was an interlocutory order addressing an entirely issues. Trial Court Opinion, 8/25/2018, at 10. However, that separate matter. Furthermore, we once again conclude that the discussion *471 concerned the trial court's justification of trial court ruled upon Father's motion without reason, thereby the Interim Order based upon its power to modify temporary abusing its discretion by failing to exercise it. On remand, custody arrangements pursuant to Rule 1915.13. As such, the trial court may receive evidence if necessary to determine that reasoning is completely inapplicable to the trial court's whether Mother is still employed out of state. If it finds summary revocation of all prior orders on an ongoing basis. that she is, the trial court shall consider the impact upon the We are forced to conclude that the trial court exercised shared custody arrangement and whether the shared custody its discretion without reason, which constitutes an abuse of arrangement serves the best interests of Child if Mother is discretion. Therefore, on remand, we direct the trial court to unavailable for significant periods during her custody time, determine which of the prior orders should be reinstated to keeping in mind Child's age. provide specific direction to the parties about the nuances of their arrangement and to minimize conflict between them in line with Child's best interest. Conclusion Based on the foregoing, we conclude that the trial court abused its discretion by modifying custody in the Interim Issue 10: Mother's Out-of-State Employment Order prematurely and without sufficient explanation or [17] Father's tenth and final issue questions whether the justification as to why modification was in Child's best trial court abused its discretion or erred by denying Father's interest. Nevertheless, the relief that Father seeks to address request to reopen the record to consider Father's after-trial this abuse of discretion is not in Child's best interest. discovery that Mother may have been employed out-of-state. Accordingly, we cannot disturb the Interim Order. We See Father's Brief at 72. Specifically, Father contends that conclude that the trial court did not abuse *472 its discretion

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 15 E.B. v. D.B., 209 A.3d 451 (2019) 2019 PA Super 146 by changing Father's physical custody from primary to shared motion for special relief. We vacate the Final Order to the in the Final Order. However, we remand to the trial court to (1) extent it denied Father's May 19, 2017 and April 24, 2018 rule on Father's May 19, 2017 and April 24, 2018 contempt contempt petitions and supersedes all prior orders, but affirm petitions as directed in this opinion; (2) determine which it in all other respects. We remand to the trial court to conduct of the prior orders should be reinstated to provide specific proceedings consistent with this opinion within 30 days. direction to the parties about the nuances of their arrangement and to minimize conflict between them in line with Child's August 31, 2017 order affirmed. June 25, 2018 order best interest; and (3) determine whether Mother is employed vacated in part and affirmed in part. July 2, 2018 order out of state, and if so, whether the out-of-state employment vacated. Remanded to conduct proceedings consistent with impacts the shared custody arrangement in the Final Order to this opinion. Jurisdiction relinquished. the extent that it no longer serves Child's best interest. All Citations Therefore, we affirm the August 31, 2017 Interim Order. We vacate the Trial Court's July 2, 2018 order denying Father's 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 with Child than was permitted by the August 2005 order, but the hearing regarding Father's petition ultimately was continued by 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 home during 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 the 2-2-3 day schedule imposed by the order. See Father's Motion for Special Relief - A, 2/23/2018, at ¶ 13. The 2-2-3 day schedule imposed by the trial court meant the parties continually alternated days in two and three day increments. Interim Order, 8/31/2017, at Exhibit A. For example, Father would have custody on Monday and Tuesday, Mother would have custody on Wednesday and Thursday, and Father would have custody on Friday through Sunday. Id. Then the following week, 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, as the motion referenced being filed prior to the entry of the Interim Order and noticed presentation of the motion for June 4, 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 it should 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 docketing the 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, Attorney Colaizzi received notices on Mother's behalf regarding the appeal, and in response did not notify this Court of any changes regarding his representation of Mother. Mother neither filed an appellee brief nor notified this Court that she did not wish to participate in this appeal. This Court directed Attorney Colaizzi to appear at oral argument. There, Attorney Colaizzi informed the Court that Mother could not afford to pay him due to pending Chapter 13 bankruptcy proceedings. We direct 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 terminating representation) ], a lawyer should carry through to conclusion all matters undertaken for a client.” R.P.C. 1.3, Comment.

The Rules of Professional Conduct permit a lawyer to withdraw in most circumstances if a client is unable to provide payment. See Rule 1.16(b)(5), (6). We note our disapproval of Attorney Colaizzi's failure to take steps to withdraw from his representation of Mother, because he effectively deprived Mother of the opportunity to file a brief pro se or obtain new 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]ertification of 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 satisfy the high bar for certification set forth in Pa.R.A.P. 702, it would not be the norm in light of the policy considerations for not 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 piecemeal appeals 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 any time that it promotes the child's best interest. Thus, by force of circumstances, no award of child custody is permanent regardless 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 proceeding to trial. Pa. R. Allegheny Cty. Civ. Fam. 1930(c). Normally, parties must praecipe for a conciliation date, and only may do 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 Allegheny County (Court Manual) at § I(H)(3). The Generations program consists of court-provided education and mediation for adults and children involved in a custody matter. Pa. R. Allegheny Cty. Civ. Fam. 1915.3(c)(iii). If the parties are unable to resolve their custody conflict by consent order after mediation, or if the court orders the parties to do so, the parties then proceed to a conciliation by a child custody officer. Court Manual at § I(F)(1)-(16). If the parties do not resolve their dispute by a consent order following the custody conciliation by a child custody officer, the case may proceed to a hearing before a custody hearing officer, psychological evaluations and/or a home study, or a judicial conciliation to address whether psychological 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 the Court Manual establishes any procedures regarding the judicial conciliation. In the flow chart detailing the steps custody matters follow in Allegheny County, the judicial conciliation is listed as being part of the “Litigation Phase” that follows when the parties cannot reach a consent order at a conciliation before a child custody officer. Id. at § I(A). The only step following the judicial conciliation is a custody trial, suggesting that the conciliation is intended to be followed by a trial and 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 the issues in his Pa.R.A.P. 2116 Statement of Questions Involved. The goal of Rule 2119(a), which requires the appellant to divide the argument into as many parts as there are questions to be argued along with specific headings, is to organize the analysis in a logical fashion. See Pa.R.A.P. 2119(a). Our numbering of the issues refers to the order Father presented the 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 due process 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.

Procedural Posture(s): On Appeal; Motion for Restraining or Protection Order; Petition for Temporary Custody. 214 A.3d 1272 Superior Court of Pennsylvania. West Headnotes (28) C.H.L. v. W.D.L., Appellant. [1] Protection of Endangered Persons Standards, scope, and questions on review No. 2617 EDA 2018 Protection of Endangered Persons | Discretion of lower court Argued April 9, 2019 In the context of an order under the Protection | From Abuse (PFA) Act, the Superior Court Filed July 08, 2019 reviews the trial court's legal conclusions for an Synopsis error of law or abuse of discretion. 23 Pa. Cons. Background: Wife filed action against husband, seeking Stat. Ann. §§ 6101-6122. order under Protection From Abuse (PFA) Act. The Court of Common Pleas, Monroe County, Civil Division, Nos. 580 DR 2016 and 5626 CV 2018, Jennifer H. Sibum, J., [2] Protection of Endangered Persons entered order providing wife exclusive possession of marital Perfection; briefs and assignments residence and awarding her temporary sole custody of parties' Husband waived his claim that weight of the minor daughter. Husband appealed. evidence did not support order under Protection From Abuse (PFA) Act, in wife's proceedings seeking protection order, where husband cited Holdings: The Superior Court, No. 2617 EDA 2018, no relevant legal authority concerning weight or Kunselman, J., held that: sufficiency of evidence. 23 Pa. Cons. Stat. Ann. §§ 6101-6122. [1] trial court had authority, under PFA Act, to award marital residence to wife; [3] Appeal and Error [2] relief requested by wife in her petition authorized court to Citation to facts and legal authority in award wife exclusive possession of marital residence; general The failure to develop an argument with citation [3] husband's argument, that trial court erred by awarding to, and analysis of, pertinent authority results in wife temporary sole legal and physical custody of their minor waiver of that issue on appeal. Pa. R. App. P. daughter, was moot; 2119(b).

[4] Superior Court would review proper procedures for entry of temporary custody provisions in an order under (PFA) Act, [4] Appeal and Error even though husband's challenge to wife's temporary custody Credibility and Number of Witnesses award was moot; and Appeal and Error Province of, and deference to, lower court [5] trial court was not required, under PFA Act, to consider in general best interests of parties' minor child in awarding temporary custody to wife. The credibility of witnesses and the weight to be accorded to their testimony is within the exclusive province of the trial court as the fact Affirmed. finder.

Citation to facts and legal authority in [5] Protection of Endangered Persons general Presumptions and burden of proof When an allegation is unsupported by any In reviewing the validity of an order under the citation to the record, such that the Superior Protection From Abuse (PFA) Act, the Superior Court is prevented from assessing the issue and Court must view the evidence in the light most determining whether error exists, the allegation favorable to petitioner and grant her the benefit is waived for purposes of appeal. of all reasonable inferences. 23 Pa. Cons. Stat. Ann. §§ 6101-6122.

[10] Protection of Endangered Persons Other particular orders or relief [6] Protection of Endangered Persons Trial court had authority, under Protection Questions of fact and findings From Abuse (PFA) Act, to award exclusive The Superior Court must defer to the lower possession of marital residence to wife, in wife's court's determination of the credibility of proceedings seeking order under PFA Act, even witnesses at the hearing for an order under the though husband was sole owner of marital Protection From Abuse (PFA) Act. 23 Pa. Cons. residence; husband had duty to support wife and/ Stat. Ann. §§ 6101-6122. or their daughter. 23 Pa. Cons. Stat. Ann. § 6108(a)(3).

[7] Protection of Endangered Persons Perfection; briefs and assignments [11] Protection of Endangered Persons Husband waived his argument that trial court Pleading, notice, and process erroneously prevented him from presenting relevant evidence when trial court ordered him Protection of Endangered Persons during direct examination not to “editorialize” Other particular orders or relief in answering questions, in wife's proceedings Relief requested by wife in her petition for seeking protection order under Protection From order under Protection From Abuse (PFA) Abuse (PFA) Act, where husband failed on Act authorized court to award wife exclusive appeal to identify evidence he sought to possession of marital residence, in wife's introduce, court's alleged exclusion of evidence, proceedings seeking order under PFA Act, and his objection to court's ruling. Pa. R. App. P. even though wife did not check off box on 2119(c). standardized petition form indicating a request to evict and exclude husband from marital residence, of which he was sole owner, where [8] Appeal and Error wife checked off box on standardized petition Briefs and argument in general form requesting that husband be ordered to provide wife “and/or minor child/ren” with Appeal and Error “suitable housing,” and husband had financial Citation to facts and legal authority in general ability to comply with such order. 23 Pa. The Superior Court shall not develop an Cons. Stat. Ann. § 6108(a)(3). argument for an appellant, nor shall it scour the record to find evidence to support an argument; instead, the Superior Court will deem the issue [12] Protection of Endangered Persons to be waived. Dismissal; mootness Husband's argument that trial court erred by awarding wife temporary sole legal and physical [9] Appeal and Error custody of their minor daughter was moot,

on husband's appeal from trial court's order wife and child. 23 Pa. Cons. Stat. Ann. § under Protection From Abuse (PFA) Act, where 6108(a)(4). trial court had since issued interim custody order intended to supersede temporary custody

provisions of PFA order. 23 Pa. Cons. Stat. [16] Appeal and Error Ann. § 6108(a)(4). Statutory or legislative law When considering issues of statutory interpretation, the applicable standard of review [13] Protection of Endangered Persons is de novo and the Superior Court's scope of Dismissal; mootness review is plenary. Superior Court would review proper procedures for entry of temporary custody provisions in an order under Protection From Abuse [17] Protection of Endangered Persons (PFA) Act, on husband's appeal from trial Other particular orders or relief court's entry of order under PFA Act, even The court need not conduct a best interests though husband's challenge to wife's temporary custody analysis to award temporary custody as sole custody award was moot, where wife's form of relief in proceedings under the Protection temporary custody award was operating custody arrangement for at least three months, and parties From Abuse (PFA) Act. 23 Pa. Cons. Stat. were likely to continue litigating aspects of Ann. § 6108(a)(4). custody arrangement without conducting full trial. 23 Pa. Cons. Stat. Ann. § 6108(a)(4). [18] Protection of Endangered Persons Nature and purpose; public policy Protection of Endangered Persons [14] Appeal and Error Domestic abuse and violence Want of Actual Controversy The purpose of the Protection From Abuse (PFA) Despite the general rule regarding mootness, Act is to protect victims of domestic violence the Superior Court will decide questions that from the perpetrators of that type of abuse and otherwise have been rendered moot when one or to prevent domestic violence from occurring. 23 more of the following exceptions to the mootness Pa. Cons. Stat. Ann. §§ 6101-6122. doctrine apply: (1) the case involves a question of great public importance, (2) the question presented is capable of repetition and apt to elude appellate review, or (3) a party to the controversy [19] Protection of Endangered Persons will suffer some detriment due to the decision of Other particular orders or relief the trial court. Trial courts have the authority to enter orders under the Protection From Abuse (PFA) Act that conflict with custody orders. 23 Pa. Cons. [15] Protection of Endangered Persons Stat. Ann. § 6108(a)(4). Other particular orders or relief Trial court was not required, under Protection From Abuse (PFA) Act, to consider best interests [20] Protection of Endangered Persons of parties' minor child in awarding temporary Other particular orders or relief sole custody to wife, thereby displacing prior Custody wise, an order under the Protection custody order, in wife's proceedings seeking From Abuse (PFA) Act is not designed to impose order under PFA Act; trial court appropriately considered risk of abuse posed by husband to

A trial court has authority, under the Child anything but emergency relief. 23 Pa. Cons. Custody Act, to award custody on a temporary Stat. Ann. § 6108(a)(4)(v). basis so that it may address emergency situations and protect a child until a final custody hearing can be held, when a permanent order can be [21] Protection of Endangered Persons Other particular orders or relief entered. 23 Pa. Cons. Stat. Ann. § 5323(b); Pa. R. Civ. P. 1915.13. While the domestic violence emergency is still pending, an order under the Protection From Abuse (PFA) Act may alter a pre-existing custody order and remand for clarification to [26] Statutes Giving effect to entire statute and its parts; avoid conflict. 23 Pa. Cons. Stat. Ann. § harmony and superfluousness 6108(a)(4). The Superior Court must presume that the legislature did not intend any statutory language to exist as mere surplusage. [22] Protection of Endangered Persons Other particular orders or relief The Protection From Abuse (PFA) Act does not [27] Child Custody require a child to be physically struck before Welfare and best interest of child a court can award temporary sole custody to The best interests mandate, under the Child a plaintiff; the court may do so even though Custody Act, only applies to final custody the defendant has inflicted serious abuse upon awards, not temporary solutions to emergencies. the plaintiff alone. 23 Pa. Cons. Stat. Ann. § 23 Pa. Cons. Stat. Ann. § 5323(b). 6108(a)(4)(iii)(B).

[28] Constitutional Law [23] Protection of Endangered Persons Preliminary injunction; temporary Domestic abuse and violence restraining order The Protection From Abuse (PFA) Act guards Courts should be wary of prolonged interim against defendants who use children as tools orders, under the Protection From Abuse (PFA) against those seeking protection, even if the Act, as they could violate a non-custodial parent's children are not themselves physically abused. constitutional right to due process. U.S. Const. 23 Pa. Cons. Stat. Ann. § 6108(a)(4). Amend. 14; 23 Pa. Cons. Stat. Ann. § 6108(a) (4).

[24] Child Custody Grounds and Factors in General It may be reasonable and necessary for the trial court to institute a temporary arrangement, under *1275 Appeal from the Order Entered, July 30, 2018, in the the Child Custody Act, as a stopgap during Court of Common Pleas of Monroe County, Civil Division at litigation. 23 Pa. Cons. Stat. Ann. § 5323(b). No(s): 580 DR 2016 and 5626 CV 2018. Jennifer H. Sibum, J. Attorneys and Law Firms

[25] Child Custody Megan Michael, Allentown, for appellant. Authority of courts and judges

BEFORE: KUNSELMAN, J., MURRAY , J., and 1. Did the trial court err and/or abuse its discretion in PELLEGRINI * , J. granting Wife's protection from abuse petition when the award was against the weight of the evidence presented Opinion and against the credibility of Wife based on evidence during the hearing? OPINION BY KUNSELMAN, J.: 2. Did the trial court err and/or abuse its discretion in W.D.L. (Husband) appeals from an order issued pursuant not allowing Husband to present certain evidence which to the Protection From Abuse (PFA) Act, 23 Pa.C.S.A. §§ would have shown that Husband was not abusive toward 6101-6122. The PFA order provided C.H.L. (Wife), inter alia, Wife and would have shown the nature of the parties' exclusive possession of the marital residence and awarded her relationship, such as text messages and letters? temporary sole custody of the parties' four-year-old daughter; the child was not named as a protected party in the order. After 3. Did the trial court err and/or abuse its discretion in not careful review, we affirm. allowing Husband to present evidence which showed he had the right to occupy the subject property pursuant to In a meticulous, 42-page Rule 1925(a) opinion, the trial a divorce settlement agreement, and where Husband had court detailed the “very calculated, complex, web of domestic not welcomed Wife to the subject property and asked violence, control and intimidation by Husband against Wife.” Wife to leave the subject property? See T.C.O., 11/16/18, at 1. Those facts, crucial to our understanding the court's decision, are ultimately not essential 4. Did the trial court err and/or abuse its discretion in to the disposition of Husband's appeal. Briefly, the overture evicting Wife from the subject property when the parties is this: had executed a divorce settlement agreement, which stated appellant would have exclusive possession of the The parties wed after just three weeks of dating when subject property? Husband was 46 and Wife was 20. Their five-year marriage 5. Did the trial court err and/or abuse its discretion in produced a four-year-old daughter and extensive litigation, awarding temporary primary custody to Wife when Wife replete with protective orders, contempt violations and testified Husband had not physically harmed the child criminal charges. Not until the instant PFA hearing, however, nor threatened the child, and Wife testified that Husband did the court recognize Husband's “manipulation of all facets was a good father, and was precluded from presenting of the criminal justice and court system in order to achieve the current custody order where he had sole physical power and control over Wife.” See id. at 30. The court stated custody? that Husband “was playing the system like a Stradivarius.” See N.T., 7/30/18, at 42. Although Husband tried to persuade See Husband's Brief at 9-10. the court that Wife suffered from various mental illnesses, the court ultimately concluded that Wife's erratic behavior was [1] Our standard of review for PFA orders is well-settled. In attributable to years of domestic violence. the context of a PFA order, we review the trial court's legal conclusions for an error of law or abuse of discretion. Boykai At the PFA hearing, Wife testified to Husband's extensive v. Young, 83 A.3d 1043, 1045 (Pa. Super. 2014) (citations abuse and produced photographic evidence of the same. The omitted). court further determined that Husband used custody of the parties' child as a “weapon against Wife.” See T.C.O. at [2] Husband's first claim seemingly challenges the weight 41. The court issued a two-year PFA order, which included of the evidence presented at the PFA hearing. Throughout provisions awarding Wife exclusive possession of the marital his brief, however, Husband conflates the weight of evidence residence and temporary sole custody of the *1276 child with the sufficiency of evidence. See Husband's Brief at 42. pending a custody conference scheduled for seven weeks The combination of Husband's departure from the actual issue later. presented, and the fact that he cites no relevant authority makes it difficult to discern the substantive nature of his Husband filed this timely appeal and presents five issues for claim. our review:

[3] Whatever its foundation, we conclude Husband's first issue is waived. It is well-established that the failure to THE COURT: Alright, I'm going to stop you there, develop an argument with citation to, and analysis of, [Husband], so you're just going to answer the question pertinent authority results in waiver of that issue on appeal. and not editorialize, otherwise we're never going to get See Pa.R.A.P. 2119(b); Eichman v. McKeon, 824 A.2d 305, through this. 319 (Pa. Super. 2003). Here, Husband cites no relevant legal N.T., 7/30/18, at 3-4. authority to discuss either the weight or the sufficiency of the evidence; one cited case addresses a court's appearance Notably, neither Husband nor his attorney took issue with the of impropriety and the other is a decades-old precedent trial court's procedure: concerning the absence of due process at a zoning hearing. See Husband's Brief at 30. Husband merely attempts to re- ATTORNEY: Fair enough. litigate the facts and the PFA court's credibility findings. See Husband's Brief at 30-42. HUSBAND: Yes, ma'am.

Id. at 4. [4] [5] [6] To that end, we observe that the credibility of witnesses and the weight to be accorded to their testimony Compounding our confusion, we note that the trial court is within the exclusive province of the trial court as the fact explained that the only evidentiary rulings it made were finder. See Mescanti v. Mescanti, 956 A.2d 1017, 1020 actually in Husband's favor: (Pa. Super. 2008). In reviewing the validity of a PFA order, this *1277 Court must view the evidence in the light most favorable to petitioner and granting her the benefit of all At no time during the final PFA reasonable inferences. See S.W. v. S.F., 196 A.3d 224, 228 hearing did Wife raise an objection to (Pa. Super. 2018) (citation omitted). And we must defer to the any evidence presented by Husband lower court's determination of the credibility of witnesses at during his case in chief. Nor did the hearing. Id. Thus, even if Husband had preserved his first the Court sustain any objection or issue, we would still find his claim to be meritless. preclude Husband from presenting evidence of any kind. In fact, the [7] Turning to his second claim, Husband argues that the PFA only objections raised during the court erroneously prevented him from presenting relevant proceeding were by Husband's counsel evidence, such as text messages and letters. Again, our review seeking to preclude evidence or is hindered by deficiencies in Husband's brief. testimony Wife sought to admit, which [the court] sustained. This portion of Husband's argument section is a mere 200 words. 1 See Husband's Brief at 43-44. Although he cites legal precedent, a rule of evidence, and the transcript, he See Trial Court Opinion, 11/16/18 at 36-37. does not actually identify the evidence he sought to introduce, nor the court's alleged exclusion of the evidence, nor his For several reasons, we must again find waiver. For one thing, objection to the court's ruling. Id. An exchange during his issues not raised in the lower court are waived and cannot direct examination is the only identified portion of the record be raised for the first time on appeal. Pa.R.A.P. 302(a). If where Husband claims the court erroneously limited the Husband had other contentions during the hearing, he did admission of his evidence: not properly raise them. In terms of his appellate brief, we observe that “[i]f reference is made to pleadings, evidence, ATTORNEY: So [Wife] is [at the marital residence] as of charge, opinion or order, or any other matter appearing now? in the record, the argument must set forth, in immediate HUSBAND: She is not. She left on the 21st of this month connection therewith, or in a footnote thereto, a reference to after being requested to, after about two months' worth the place in the record where the matter referred to appears.” of requests -- Pa.R.A.P. 2119(c). If Husband had other contentions he meant to address in his brief, he did not properly reference them.

[11] In the alternative, Husband argues that the court [8] [9] It is not the duty of this Court to act as appellant's could not award exclusive possession, because Wife did counsel, and we decline to do so. See Hayward v. Hayward, not expressly request such relief in her PFA petition. See 868 A.2d 554, 558 (Pa. Super. 2005). “We shall not develop Husband's Brief at 48. He analogizes the instant case to when an argument for an appellant, *1278 nor shall we scour a court issues a PFA order on behalf of a party who did not the record to find evidence to support an argument; instead, properly petition for one, a situation clearly forbidden by we will deem the issue to be waived.” Commonwealth v. Section 6108(c) (concerning mutual orders of protection). Cannavo, 199 A.3d 1282, 1289 (Pa. Super. 2018) (citations omitted). When an allegation is unsupported by any citation His argument is novel, but we need not decide whether the to the record, such that this Court is prevented from assessing court is confined to only those forms of relief requested in the the issue and determining whether error exists, the allegation petition, or whether the court has the broad discretion to award is waived for purposes of appeal. Commonwealth v. any form of relief under Section 6108. We conclude that Williams, 176 A.3d 298, 306 (Pa. Super. 2017) (citations the relief Wife requested in her PFA petition authorized the omitted). This Court cannot conduct a meaningful review if it has to guess what issues an appellant is appealing. See court to award exclusive possession under Section 6108(a) (3). Jones v. Jones, 878 A.2d 86, 89 (Pa. Super. 2005) (finding waiver when this Court could not discern appellant's issues Wife's PFA petition was a standardized document where she, on appeal) (citation omitted). We conclude that Husband's as the petitioner, filled in blanks and checked off boxes. second issue is also waived. Such is a typical practice across the Commonwealth and often completed with the help of volunteers. Husband is We discuss Husband's third and fourth issues technically *1279 correct; Wife did not check off the box contemporaneously, as both concern the court's award of that stated: “Plaintiff is asking the court to evict and exclude exclusive possession of the marital residence to Wife. First, the Defendant from the following residence: _____.” See Husband contends that Wife was not entitled to receive Wife's Petition for Protection From Abuse at 4. Likewise, exclusive possession of the marital residence, because Wife Wife did not check off the box, which prayed upon the court had previously executed a marriage settlement agreement to: “Grant such other relief as Plaintiff requests and/or the 2 wherein she had granted possession to Husband. Second, court deems appropriate.” Id. Husband contends that Wife was not entitled to this relief, because she did not explicitly request it in her PFA petition. However, Wife did check the box that requested the court to: “Require Defendant to provide Plaintiff and/or minor child/ Husband argues that the court did not allow him to present ren with other suitable housing.” Id. Wife also articulated that the settlement agreement showing he had a right to exclude she lost “money, car, home” on account of Husband's abuse. Wife from the subject property. See Husband's Brief at 45. Id. Consequently, Husband was on notice at the PFA hearing Like his previous evidentiary challenge, Husband's recitation that he would be responsible for providing suitable housing of what transpired at the hearing is just not true. Husband for Wife and their child if Wife succeeded on her petition. cannot cite to where he attempted to present such evidence but was rebuffed by the court. See also T.C.O., at 36-37 (excerpt Given his responsibility to the parties' child, the court may quoted above). have determined it was best for the child to remain at the same address while custody switched from Husband to Wife [10] More to the point, Husband is simply incorrect that by virtue of the PFA order. But we need not speculate, the court lacked authority to award the marital residence to because Wife clearly requested that Husband provide her and Wife because she does not hold title to it. The Protection their child with suitable housing. The PFA Act authorizes From Abuse Act specifically allows the court to grant a the court to provide such relief. The court observed that plaintiff exclusive possession of the residence even though Husband had the financial ability to comply. Consequently, the defendant is the sole owner if the defendant has a duty to the court did not abuse its discretion when it determined support the plaintiff or minor children living in the residence. that exclusive possession of the marital residence was an See 23 Pa.C.S.A. § 6108(a)(3). appropriate mechanism to facilitate this relief. Husband's third and fourth issues are also without merit.

banc), rev'd on other grounds, 631 Pa. 343, 111 A.3d 1164 [12] We turn now to Husband's final contention that the court (2015) (quotations omitted). erred by awarding Wife temporary custody of their four-year- old daughter. See Husband's Brief at 51. Before we address [14] Despite our general rule regarding mootness, the merits of Husband's challenge, we consider whether the PFA order's temporary custody provision is moot.

this Court will decide questions that The PFA order, dated July 30, 2018, awarded Wife temporary otherwise have been rendered moot sole legal and physical custody of the child, and directed the when one or more of the following parties to attend a custody conference before a conciliator on exceptions to the mootness doctrine September 12, 2018. The parties appeared for the conference, apply: 1) the case involves a question and the conciliator took the matter under advisement. Before of great public importance, 2) the a decision was issued, Husband filed a PFA petition against question presented is capable of Wife on behalf of the child and provided the court a photo repetition and apt to elude appellate of a welt on the child's body. The court granted Husband a review, or 3) a party to the controversy temporary PFA order, and the child was placed in his custody. will suffer some detriment due to the A final PFA hearing was delayed until late October 2018 decision of the trial court. while the local Children and Youth Services investigated. 3 Following the investigation, the court held a final PFA hearing and denied Husband's petition. Custody then reverted back to Wife, pursuant the temporary custody provision of the July Id. (quoting In re D.A., 801 A.2d 614, 616 (Pa. Super. 30, 2018 PFA order. 2002)).

On November 1, 2018, the custody conciliator's report In E.B. v. D.B., we reviewed the merits of an interim order that indicated that the parties were unable to reach an agreement. modified a pre-existing custody arrangement pending a final The court scheduled a preliminary hearing for November hearing. The interim order was reviewable because otherwise 19, 2018, appointed the child a guardian ad litem, ordered a the interim order would likely have evaded our review comprehensive custody evaluation, and established an interim due to its interlocutory nature. Id.; see also Plowman custody order. There, our knowledge of the custody case ends v. Plowman, 409 Pa.Super. 143, 597 A.2d 701 (1991) with the trial court's issuance of its Pa.R.A.P. 1925(a) opinion (reviewing an interlocutory order permitting a mother to on November 16, 2018. relocate with her child despite the existence of a later order entered after a full custody hearing). There is no question the court intended for the PFA order's custody provisions to apply only on an emergency, temporary Here, because the instant PFA order affected the non-custodial basis until the parties met at the custody conference. Because parent's right to “access to the child and impacted the status the Interim Custody Order (dated November 1, 2018) almost quo that would later set the stage for the full custody trial, certainly superseded the temporary custody provisions of the we conclude that we ought to review the proper procedures PFA Order (dated July 30, 2018), it appears that the issue for entry” of temporary custody provisions in a PFA order. *1280 Husband presents in this appeal regarding the PFA See id. As in E.B. , we are satisfied that the question 4 Order's custody provision is moot. presented concerning the PFA's temporary custody provision is “capable of repetition and apt to elude appellate review.” [13] This Court has held that “we may sua sponte raise the See id. at *8. As in E.B., “the history of this case suggests issue of mootness, as we generally cannot decide moot or that these parties are likely to litigate continually aspects of abstract questions, nor can we enter a judgment or decree to their custody arrangement, and the trial court might again try which effect cannot be given.” E.B. v. D.B., 209 A.3d 451, to resolve their issues without conducting a full trial.” See id. 461, 2019 PA Super 146, at *7, (Pa. Super. May 6, 2019) Although the trial court fashioned a sole custody provision on (citing In re L.Z., 91 A.3d 208, 212 (Pa. Super. 2014) (en a temporary basis, that provision was the operating custody arrangement for at least three months. We may proceed to the merits of Husband's final contention.

emotional and spiritual well-being.” See id. (Emphasis [15] Husband asserts that the court erred when it did not consider the child's best interests when displacing the prior added); see also 23 Pa.C.S.A. § 5301(a). custody order and awarding Wife temporary custody out of the PFA order. In the years since Shandra, sections 5301- 5315 of the Child Custody Act have been repealed and replaced. The new [16] To discern whether the court erred, we must examine iteration of the Child Custody Act requires a 16-factor, best the connection between the Protection From Abuse Act (23 interests analysis when awarding any form of custody. See Pa.C.S.A. §§ 6101-6122) and the current iteration of the Child Custody Act (23 Pa.C.S.A. §§ 5321 – 5340), both of 23 Pa.C.S.A. § 5328(a). which are chapters under the Domestic Relations Code. When considering issues of statutory interpretation, the applicable In other words, we could not apply the Shandra best standard of review is de novo and our scope of review is interests rule in any event, as it was based on a statute now plenary. Trout v. Strube, 97 A.3d 387, 389 (Pa. Super. 2014). defunct. What Husband essentially argues then, is that the court erred by not conducting a best interests analysis under Believing the facts to be similar, Husband relies exclusively Section 5328(a) of the current Child Custody Act. on Shandra v. Williams, 819 A.2d 87 (Pa. Super. 2003), wherein we concluded that the trial court had improperly [17] Absent guidance from our Legislature or our Supreme modified a child custody order following a PFA hearing Court, we conclude that a PFA court need not conduct a without *1281 first providing the parties an opportunity to best interests custody analysis to award temporary custody introduce evidence relating to the best interests of the child. as form of relief under section 6108 of the Protection From Abuse Act. Shandra, 819 A.2d at 88. Husband's reliance is misplaced. [18] [19] The purpose of the Protection From Abuse Act is In Shandra, although the custody portion of the PFA to protect victims of domestic violence from the perpetrators of that type of abuse and to prevent domestic violence from order was entered ostensibly under the auspices of section 6108(a)(4) (relating to temporary custody), the trial court occurring. Ferko-Fox v. Fox, 68 A.3d 917, 921 (Pa. Super. effectively entered a final custody order. There, the court 2013)(citation omitted). It is well-settled that trial courts permanently suspended all of the father's custodial rights have the authority to enter protection from abuse orders that until he achieved a certain condition, namely the release conflict with custody orders. See Lawrence v. Bordner, 907 A.2d 1109, 1113 (Pa. Super. 2006) (citing Dye for McCoy from his halfway house. Id. at 90-91. We reiterated that v. McCoy, 423 Pa.Super. 334, 621 A.2d 144, 145 (1993)). the right of the PFA court to award temporary custody was The PFA Act allows the court to award temporary custody intended to provide ancillary relief regarding children in or establish temporary visitation rights with regard to minor abuse actions, but not to establish a procedure for determining children. See 23 Pa.C.S.A. § 6108(a)(4). Where the court permanent custody. Id. at 91. (Citation omitted). Because finds after a hearing that the defendant has inflicted serious the Shandra PFA court effectively issued a final custody abuse, the court may deny the defendant custodial access award, it erred by not abiding by the proper custody to a child. See 23 Pa.C.S.A. § 6108(a)(4)(iii). In order procedure, including notice and an opportunity to be heard to prevent further abuse during periods of access to the on substantive custody considerations, i.e. the child's “best plaintiff and child during the exercise of custodial rights, interests” as defined by statute. the court shall consider, and may impose on a pre-existing custody award, conditions necessary to assure the safety of the In Shandra, we quoted the pertinent custody statute nearly plaintiff and minor children from abuse. See 23 Pa.C.S.A. verbatim when we stated: “[I]t is well-settled, that in any § 6108(a)(4)(vi). instance in which child custody is determined, the overriding concern of the court must be the best interest[s] and welfare [20] [21] Custody wise, a PFA order is not designed to of the child, including the child's physical, intellectual, impose anything but emergency relief. See Dye for McCoy,

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 9 C.H.L. v. W.D.L., 214 A.3d 1272 (2019) 2019 PA Super 210 supra, 621 A.2d at 145. To understand this, look no further The court classified these types of statements as destructive than the PFA Act: “Nothing in this paragraph [relating to and concluded that *1283 Husband has utilized custody temporary custody as a form of relief] shall bar either *1282 of the parties' small child “as a weapon against Wife.” See party from filing a petition for custody under Chapter 53 T.C.O. at 41. (relating to custody) or under the Pennsylvania Rules of Civil Contrary to Husband's assertion, the PFA court actually Procedure.” See § 6108(a)(4)(v). But while the domestic concluded that temporary custody was in the child's best violence emergency is still pending, a PFA order may alter interests. Id. at 43. Indeed, some of the court's considerations a pre-existing custody order and remand for clarification to 6 avoid conflict. See Dye for McCoy, 621 A.2d at 145. “To hold appear to correspond with a formal custody analysis. otherwise would have the effect of emasculating the central Nevertheless, when awarding temporary custody out of a PFA and extraordinary feature of the PFA which is to prospectively order, the court need only consider the risk the defendant control and prevent domestic violence.” Id. poses to the child as well as the plaintiff. See 23 Pa.C.S.A. § 6108(a)(4). [22] Moreover, the PFA Act does not require a child to be physically struck before a court can award temporary sole We cannot ignore the sheer impracticality of Husband's custody to a plaintiff. The court may do so even though the suggestion, that a court conduct a full-blown custody hearing defendant has inflicted serious abuse upon the plaintiff alone. as part of a final PFA hearing. With an eye toward judicial See § 6108(a)(4)(iii)(B). economy, we observe that the dichotomy between a PFA order's temporary custody provision and a final custody order [23] There is good reason for this. For one, research indicates is akin to a jurisdictional challenge under the Uniform Child that children who are exposed to domestic violence suffer Custody Jurisdiction and Enforcement Act, 23 Pa.C.S.A. §§ a torrent of adverse effects regardless of whether they 5401 et seq. There, a court must first hold a hearing to are direct victims of the physical abuse. See, e.g., Rosie determine whether it even has jurisdiction to award custody; Gonzalez & Janice Corbin, The Cycle of Violence: Domestic the court leaves for another day entirely the substantive Violence and Its Effects on Children, 13 SCHOLAR 405, custody considerations. But even then, a court exercising 413 (2011). Even simple exposure to such violence produces temporary emergency jurisdiction may award interim custody physical and mental results similar to those observed in relief. “A court of this Commonwealth has temporary emergency jurisdiction if [inter alia] it is necessary in an maltreated children. See id. (Footnotes omitted). 5 The PFA emergency to protect the child because the child or sibling Act also guards against defendants who use children as tools or parent of the child is subjected to or threatened with against those seeking protection, even if the children are not mistreatment or abuse.” § 5324(a) (emphasis added). The risk themselves physically abused. In the instant case, the court of abuse to the parent alone is enough to authorize the court found exactly that. to protect the child. Wife testified she always “positioned” herself away from the [24] [25] Similarly, a temporary custody provision in a child when Husband beat her so the child would not see the PFA order is just like any other interim custody order. abuse. See N.T., 7/30/18, at 27. Wife further testified that Section 5323(b) of the Child Custody Act makes clear Husband is not a physical danger to the child, but she stated: that interim custody orders are not the types of custody I believe mentally it's not healthy for [the child], because awards necessitating a 16-factor, best interests analysis under [Husband] tells [the child] ‘mommy's going away for a Section 5328(a). Often, it will be reasonable and necessary long time’ and ‘you're going to get a new mommy,’ and for the trial court to institute a temporary arrangement as a [the child] repeats ‘I don't want a new mommy, I love my stopgap during litigation. See E.B., 209 A.3d at 464–65, 2019 mommy’ and yeah, he like tells, just tells her that. So he's PA Super 146, at *10. It is well-settled that trial court has not, no, he's not physically abusive to [the child] but he tells authority to award custody on a temporary basis so that it may her stuff that you should not tell a four-year-old. address emergency situations and protect a child until a final custody hearing can be held, when a permanent order can be Id., at 30. 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

and obtain a backdoor custody modification. The Domestic also 23 Pa.C.S.A. § 5323(b) (allowing interim award of Relations Code accounts for the potential exploitation by custody in the manner prescribed by the Pennsylvania Rules separating the custody issue into two inquiries: first, a PFA of Civil Procedure governing special relief). court addresses the exigent risk of abuse posed to the child as well as the petitioner; thereafter, the custody court determines [26] [27] The object of all statutory interpretation and the child's best interests. This procedure safeguards the rights construction is to ascertain and effectuate the intention of the both parties in their dual roles as PFA litigants and as the General Assembly. See 1 PA.C.S.A. § 1921(a). We must parents. 7 Still, as we cautioned in E.B., supra, courts should presume that our Legislature did not intend any statutory be wary of prolonged interim orders as they could violate a language to exist as mere surplusage. See, e.g., C.B. non-custodial parent's constitutional right to due process. That v. J.B., 65 A.3d 946, 951 (Pa. Super. 2013). With those was not the situation here. principles in mind, we conclude there is no conflict between the PFA Act's relief of temporary custody and the Child In the case at bar, the PFA court appropriately considered the Custody Act's mandate that a court conduct a best interests risk of abuse posed by Husband to Wife and the child when analysis when awarding any form of custody. See 23 granting Wife temporary sole custody pursuant to Section 6108(a)(4). Its decision was not an abuse of discretion. Pa.C.S.A. § 6108(a); see also 23 Pa.C.S.A. § 5323(b). The best interests mandate only applies to final custody awards, Order affirmed. not temporary solutions to emergencies.

*1284 [28] We recognize the apprehension that some could All Citations exploit the PFA Act, i.e. that dishonest parents might utilize a protection order as a vehicle to bypass the Child Custody Act 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 55 pages, 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 settlement agreement is void and unenforceable on the grounds of incapacity and intentional fraud. In other words, this is not a case where, long after the divorce decree and equitable distribution, a PFA court awarded one ex-spouse possession of 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 a dependency 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 the temporary 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 eating habits as infants, exhibit aggressive and regressive behavior in school, and behave delinquently as teenagers. The psychological impact on children living in violent homes can manifest itself as post-traumatic stress disorder (PTSD) or other psychiatric disorders, including dissociative disorders, anxiety, and mood disorders. These children also have a tendency to exhibit suicidal ideation, increased levels of fear, unnatural passivity and dependency, as well as impulsivity and extreme crying. Younger children generally suffer from poor health, insomnia, excessive screaming, frequent headaches, stomachaches, diarrhea, asthma, and peptic ulcers. Accordingly, children exposed to family violence are admitted to hospitals twice as often as other children, have an increased number of psychosomatic complaints, and are more frequently absent from school due to health problems. Furthermore, victims of abuse frequently turn to drug and alcohol abuse in order to cope with traumatic childhood events, which in turn can lead to the development of fatal diseases such as heart disease, lung cancer, and liver disease. * * *

In addition to the increased risk for future violent victimization, children exposed to domestic violence are also more likely 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 must also 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 more seamless.

4 Cases that cite this headnote KeyCite Yellow Flag - Negative Treatment Distinguished by D.G.B. on Behalf of N.G.A. v. W.K., Pa.Super., November 13, 2018 [2] Appeal and Error 409 Pa.Super. 143 Collateral matters and proceedings Superior Court of Pennsylvania. Order is considered final and appealable if it is separable from and collateral to main cause Diane PLOWMAN of action, right involved is too important to be v. denied review, and question presented is such Bradley PLOWMAN, Appellant. that if review is postponed until final judgment in case, claimed right will be irreparably lost. Argued July 30, 1991. | 3 Cases that cite this headnote Filed Oct. 7, 1991.

Synopsis [3] Constitutional Law In full custody hearing, the Court of Common Pleas, Factors considered; flexibility and Allegheny County, Family Division, No. FD 88–09524, Baer, balancing J., entered order granting legal and physical custody of minor Due process is concept incapable of exact child to mother, subject to partial custody of father. Father definition; rather, it is flexible notion which appealed. The Superior Court, No. 01290 Pittsburgh 1990, calls for such procedural safeguards as particular Cercone, J., held that: (1) after granting mother permission to situation demands to ensure fundamental move with child to Maryland, court's delay of over one year fairness to potentially aggrieved litigant. before conducting full evidentiary hearing was unreasonable, U.S.C.A. Const.Amend. 14. and (2) custody determination was supported by sufficient 3 Cases that cite this headnote evidence.

Affirmed. [4] Constitutional Law Notice and hearing in general McEwen, J., concurred in result. Right of litigant to in-court presentation of evidence is essential to due process. U.S.C.A. Procedural Posture(s): On Appeal. Const.Amend. 14.

1 Cases that cite this headnote West Headnotes (11)

[5] Constitutional Law [1] Child Custody Witnesses; confrontation and cross- Matters or evidence considered examination On father's appeal from order granting mother In almost every setting where important physical and legal custody of child subject decisions turn on questions of fact, due process to partial custody of father, Superior Court requires opportunity to confront and cross- could consider earlier order allowing mother to examine witnesses. U.S.C.A. Const.Amend. 14. relocate with child to Maryland, even though father did not immediately appeal that order; 2 Cases that cite this headnote order allowing mother to relocate was not appealable, as issue of whether child should [6] Child Custody live was intertwined with issue of which parent Time for hearing should maintain custody over child. 42 Pa.C.S.A. § 702(b).

Where either parent files petition which raises issue of whether it is in best interest of 2 Cases that cite this headnote child to move with custodial parent outside of jurisdiction, hearing must be held either before [10] Appeal and Error move, or under exigent circumstances, within Relevance reasonable time thereafter. Trial court has wide discretion in ruling on 18 Cases that cite this headnote relevancy of evidence, and its rulings thereon will not be reversed absent abuse of discretion.

[7] Child Custody 4 Cases that cite this headnote Time for hearing After giving mother authority to move out of [11] Child Custody state with child, trial court's delay of over one Admissibility year before holding full evidentiary hearing In rendering final order granting legal and on mother's custody modification petition was physical custody of minor child to mother, unreasonable; however, trial court correctly subject to partial custody of father, court properly determined that it would be useless to pass excluded evidence that mother made certain judgment on prior decision, but that it could wages between four and seven years prior to her appropriately consider effect of that decision on move with child to Maryland, which evidence welfare of child. father argued tended to prove that she could 12 Cases that cite this headnote have obtained employment in Pittsburgh area instead of relocating to Maryland; mother had studied to become medical assistant, evidence [8] Child Custody not relating to her job search in that profession Removal from jurisdiction would be irrelevant, and her ability to obtain Factors for trial court to utilize in employment during period to which evidence determining whether custodial parent should be pertained did not have impact on her ability to permitted to relocate geographical distance from find employment when she moved. noncustodial parent were enumerated.

8 Cases that cite this headnote

[9] Child Custody Attorneys and Law Firms Behavior of parties in general **703 *146 James Mahood, Pittsburgh, for appellant. In granting legal and physical custody of minor child to mother, subject to partial custody Robert J. Fall, Pittsburgh, for appellee. of father, trial court adequately considered mother's interference with father's relationship Before McEWEN, OLSZEWSKI and CERCONE, JJ. with child, mother's refusal to accommodate Opinion relationship between father and child, and father's parenting skills; trial court examined CERCONE, Judge: mother's recalcitrance in hindering father's access to child, appropriately drafted specific This is an appeal from the final order of the Court of custody order to preclude mother from denying Common Pleas of Allegheny County granting legal and father access to child, and also concluded physical custody of a minor child to appellee/mother, subject that mother moved to Maryland for better job to the partial custody of appellant/father. We affirm. opportunities in her chosen profession.

Appellant Bradley Plowman (hereinafter “father”) and allow the child to visit with father when she is in Pittsburgh appellee Diane Plowman (hereinafter “mother”) were married unless required by court order. on May 28, 1983. During the course of the marriage, they had one child, Jason Plowman. On September 13, 1988, mother The trial court also found that father is an understanding and filed a complaint in divorce against father. In the complaint, thoughtful person who has a close and supportive relationship she sought custody of Jason. On January 6, 1989, the parties with his family. Judge Baer noted that although father had agreed to a custody order which awarded primary physical a previous bout of depression and related alcohol and drug custody to mother and granted partial physical custody to problems, he overcame those problems which consequently father. had no bearing on the **704 Court's decision. He found that when mother left the marital residence in September, Later that year, mother filed a petition for modification 1988, father's relationship with Jason was cut off by mother's so that she could move to Gaithersburg, Maryland with unilateral actions until January, 1989. Since then, father Jason to accept employment as a medical assistant. In remained a part of the child's life and has done as well as could immediate response, father petitioned the court for a writ be expected to establish and maintain his role as a father under of ne exeat to prevent mother from moving to Maryland difficult circumstances. with the minor child. Judge Kaplan of the Allegheny County Court of Common Pleas Family Division entered an order Judge Baer gave credence to the opinion of the court which denied modification of the custody order as well as appointed psychologist, Dr. Rosenblum, who found that the father's petition for writ of ne exeat, and sub silentio allowed child's attachment to mother was stronger than the attachment mother to relocate to Maryland with Jason. He ordered an *148 to his father. Judge Baer concluded that mother has expedited custody conciliation hearing if the parties could been generally uncooperative and difficult with father's partial not agree on a visitation schedule. Judge Kaplan also ordered custody and in this regard has not served the child's best the court appointed psychologist to consider the change in interests. He stated, however, that one parent's ability to circumstances in conducting his evaluation of Jason. On June promote a continuing relationship with the other is only one 23, 1989, father filed a petition for modification of custody. factor to be considered, and in this case, was not a sufficient On June 27, 1989, the parties entered into an interim order factor to justify a removal of the child from the mother and of custody which provided that both parties maintain joint an award of primary custody to the father. legal custody of *147 Jason while allowing mother primary physical custody of the child in Gaithersburg. Mother and Judge Baer subsequently issued an order granting mother Jason moved to Maryland in July of 1989. physical and legal custody of Jason subject to the partial custody of father. The order was drafted specifically to allow Between that time and the time of the full custody hearing father a continuing relationship with the child father without in July, 1990, appellant filed three petitions for special any interference from mother. This timely appeal followed in relief alleging that mother failed to adhere to the interim which father raises three issues for our review: custody order by prohibiting his access to Jason. On July 17, 1990, a full custody hearing was held before Judge 1. Did the court err in permitting the mother to move out Baer of the Allegheny County common pleas court family of the jurisdiction with the minor child without holding division. In his opinion, Judge Baer determined that mother a hearing and making a determination of the child's best displayed a natural ability to parent which made her the interests; ideal primary caretaker for Jason. He found that upon her 2. Did the court err in failing to adequately consider the arrival in Maryland, she enrolled Jason in an excellent school, mother's interference with the father's relationship with further indicating her dedication to the child and willingness the child, her refusal to accommodate a relationship to make sacrifices for the child. He also found that when between the father and the child, and the father's mother vacated the marital residence, she prohibited father parenting skills in making its determination; from seeing the child, with one exception, until establishment of a court order. Although mother abided by the order, she 3. Did the court err in excluding evidence offered by the treated it mechanically, disregarding any flexibility to observe father relating to the job opportunities and salaries for the child's best interests. Mother has generally not made the the mother in the Pittsburgh area and in finding that the child available for father's telephone calls and would not mother had legally compelling reasons to move?

from appealing an interlocutory order where that party did not [1] Before addressing these claims on their merits, however, seek certification for interlocutory appeal based on that order. we must determine whether father's first issue on appeal is Having determined that the issue raised by father is properly properly before us. Mother has opposed our consideration of before us, we turn to the merits of father's appeal. the order allowing her to relocate with Jason to Maryland on the grounds that father did not immediately appeal Judge In his first argument, father avers that Judge Kaplan erred Kaplan's order under the collateral order doctrine or by in entering an order allowing mother to relocate with *150 certification of the appeal, pursuant to 42 Pa.C.S.A. § 702(b). Jason to the Washington D.C. area without holding a hearing to consider the child's best interests. 1 He alleges that because *149 [2] The collateral order doctrine allows an appeal of the full hearing on custody occurred one year later, the court an interlocutory order if certain conditions are met. As this based its decision on the new status quo created after the court has set forth previously: move. This, he contends, deprived him of due process.

Judge Baer found this issue moot because he held a subsequent evidentiary hearing on the issue of custody. Under [ Cohen v. Beneficial Therefore, a review of Judge Kaplan's decision would have Industrial Loan Corporation, 337 U.S. subverted the court's ultimate obligation to review the best 541, 69 S.Ct. 1221, 93 L.Ed. 1528 interests of the child as of the time of the hearing under the (1949) ], an order is considered final facts as they then existed. and appealable if (1) it is separable from and collateral to the main cause This court has previously held: of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final As a general rule an actual case or judgment in the case, the claimed right controversy must exist at all stages of will be irreparably lost. the judicial process, and a case once “actual” may become moot because of a change in facts.... An exception is made, however, for cases in which Kronz v. Kronz, 393 Pa.Super. 227, 232, 574 A.2d 91, 93– the issues are capable of repetition 94 (1990)(citation added). Under this test, we find that the but likely to evade review if the order issued by Judge Kaplan in this case was not appealable. general rule on mootness is applied.... While father's right is extremely important and deserves Thus, an action will not be found consideration, we do not find that the order was separable moot when the challenged action is from and collateral to the main cause of action. Here, father in its duration too short to permit full filed a petition to restrain mother from removing the child litigation and there is a reasonable from the jurisdiction. The court denied this petition and expectation that the same complaining allowed mother to relocate with the child. In effect, the issue party will be subject to the same action of where the child should live is intertwined with the issue of again.... Where the same party will which parent should maintain custody over the minor child. not be subject to the harm again and the action is not a class action, still, We are also unpersuaded by mother's argument that father the case will not be found moot if could have sought certification to appeal. Certification of an the issues capable of repetition but interlocutory appeal is not automatic. A party must obtain likely to evade review are “substantial certification from the lower court and permission from this questions,” or “questions of public court before an appeal may be had. 42 Pa.C.S.A. § 702(b); importance.” **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 has our exhaustive research found one, which prohibits a party

In re Estate of Dorone, 349 Pa.Super. 59, 65, 502 A.2d While the best interests of the child are more closely allied 1271, 1274 (1985) (citations omitted). Father alleges that he with the interest and quality of life of the custodial *152 was denied procedural due process since he was not afforded parent, Gruber v. Gruber, 400 Pa.Super. 174, 183, 583 a full evidentiary hearing before the court allowed Jason A.2d 434, 438 (1990), this factor must be balanced against to relocate in Maryland with his mother. In a case such an appreciation of and sensitivity to the mutual interest of the as this, we could never reach this issue because appellant child and the non-custodial parent in maintaining as healthy would necessarily be forced to delay his appeal until a final and loving a relationship as possible. Id. As Judge Beck stated *151 custody order had been entered. According to the trial in Gruber: court, the issue became irrelevant once final custody was determined. However, the non-custodial parent's right to a proper determination of whether the custodial parent may The task of this court is to sacrifice the move out of the jurisdiction with the minor child is substantial non-custodial parent's interest as little enough to require our consideration of the proper procedures as possible in the face of the competing to be implemented at such a juncture. We therefore turn to the and often compelling interest of a merits of father's appeal. custodial parent who seeks a better life in another geographical location. [3] [4] [5] Due process is a concept incapable of exact definition. Rather, it is a flexible notion which calls for such procedural safeguards as a particular situation demands to ensure fundamental fairness to a potentially aggrieved Id. In this context, we note that while the custodial parent has the right to make decisions concerning his or her welfare litigant. Corra v. Coll, 305 Pa.Super. 179, 182, 451 A.2d and the welfare of the minor children, that parent has a 480, 482 (1982). The fundamental requirement of due process responsibility towards the non-custodial parent to maintain is the opportunity to be heard at a meaningful time and in a the relationship between the minor children and the non- meaningful manner. Mathews v. Eldridge, 424 U.S. 319, custodial parent. This may only be accomplished where the 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976). We have court is permitted to decide custody before the minor child previously stated: is moved from the jurisdiction. In Gruber we developed a three part test to facilitate the trial court's determination of The right of a litigant to an in-court presentation of whether the best interests of a minor child are served by evidence is essential to due process: “In almost every moving outside of the jurisdiction with the custodial parent setting where important decisions turn on questions of fact, or remaining in the jurisdiction with the non-custodial parent. due process requires an opportunity to confront and cross- We now decide when those interests must be balanced. We examine witnesses.” find that the same competing interests found in Gruber mandate that the balancing must be made before the child Hall v. Luick, 314 Pa.Super. 460, 463, 461 A.2d 248, 250 is permitted to move from the jurisdiction, or under exigent (1983) citing Goldberg v. Kelly, 397 U.S. 254, 269, 90 circumstances, within a reasonable time thereafter. S.Ct. 1011, 1021, 25 L.Ed.2d 287, 300 (1970). We find that due process requires a full evidentiary hearing to be held [6] We make no requirement for a hearing when the two either before the child is moved from the jurisdiction or within parents are able to arrive at a mutual decision regarding a reasonable time thereafter. a minor child's move from the jurisdiction. In the absence of an agreement, however, the non-custodial parent has a **706 Our decision rests on the substantial rights of parents compelling right to be heard as to whether such a move is in to maintain a continuing and meaningful relationship with the best interests of the minor child. In fact, such a hearing their minor children. However, where the parents disregard may be his or her last meaningful opportunity *153 to be the rights of one another, or as here where one parent displays heard on the question of custody. 2 We therefore hold that antipathy towards the other, it becomes the responsibility of where either parent files a petition which raises the issue of the court to ensure fairness of both procedure and result in a whether it is in the best interest of the child to move with the custody action. custodial parent outside of the jurisdiction, a hearing must be

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 Plowman v. Plowman, 409 Pa.Super. 143 (1991) 597 A.2d 701 held either before the move, or under exigent circumstances, within a reasonable time thereafter. 3. the availability of realistic, substitute visitation arrangements which will adequately foster an ongoing We find that our Rules of Civil Procedure also support this relationship between the child and the non-custodial result. The rules provide, in pertinent part: parent.

Id. at 184–85, 583 A.2d at 439. These considerations must No judgment may be entered by then be factored into the ultimate consideration of the court, default or on the pleadings. which is to determine what is in the best interests of the child. See Lee v. Fontine, 406 Pa.Super. 487, 594 A.2d 724 (1991), at ––––, 594 A.2d at 726 (any judicially determined preconditions may amplify, but do not alter, the best interest Pa.R.Civ.P. Rule 1915.9, 42 Pa.C.S.A. While this rule standard). ostensibly applies to final orders of custody, Rule 1915.9, Explanatory Note, we find it applicable where the result of After reviewing the record we find that Judge Kaplan failed to any order substantially affects the rights of either parent, or consider the impact of any of these concerns when deciding the minor children. to allow mother to relocate with Jason. However, we cannot redress this error by eliminating all the proceedings that have [7] In the case sub judice, the court allowed no full occurred until this point. Our review must be based on the evidentiary hearing to be held on whether the best interests best interests of the child at the time of the present hearing. of the child were served by allowing him to move with Commonwealth ex rel. Gorto v. Gorto, 298 Pa.Super. 509, mother to Maryland. Nor is there any indication that Judge 514, 444 A.2d 1299, 1301 (1982) (facts as of the time of Kaplan entertained oral argument on the issue. This was hearing are the foundation for determination of the court). In error. The lower court was obligated to entertain a full custody proceedings, the paramount concern is the welfare of evidentiary hearing on the issue of modification of custody the children and all considerations, including the rights of the before allowing even a de facto modification. The trial court parents, are subordinate to the children's physical, intellectual, here waited over one year before having a full evidentiary hearing on mother's custody modification petition. During moral spiritual and emotional well being. Constant A. this time period, father's ability to defend his position eroded v. Paul C.A., 344 Pa.Super. 49, 65, 496 A.2d 1, 9 (1985). because the more time **707 Jason was allowed to stay in We cannot ignore the last two years of the child's life in Maryland, the more it could be argued that it was in his best Maryland as though they never occurred. Therefore, we find interests to remain in Maryland under the new status quo. that the trial court was *155 correct in determining that it Given the compelling interests of the non-custodial parent would be useless to pass judgment on the prior decision, but involved here, the court's delay in holding the evidentiary could appropriately consider the effect of that decision on the hearing was unreasonable. welfare of the minor child. 3

[8] In Gruber, supra, we set forth the following three factors [9] Father also contends that the lower court failed to for the trial court to utilize in determining whether *154 a adequately consider the mother's interference with the father's custodial parent shall be permitted to relocate a geographical relationship with the child, her refusal to accommodate a distance from a non-custodial parent: relationship between the father and the child and the father's parenting skills in making its determination. Implicitly, father 1. the potential advantages of the proposed move and the argues that the trial court in the custody hearing failed likelihood that the move would substantially improve the to consider those factors enunciated in Gruber, supra. We quality of life for the custodial parent and the child and disagree. is not the result of a momentary whim on the part of the custodial parent;

2. the integrity of the motives of both the custodial and non- On appeal, our scope of review is custodial parent in either seeking the move or seeking to broad in that we are not bound by prevent it; deductions and inferences drawn by the trial court from the facts found,

nor are we required to accept findings when she is in Pittsburgh, unless she is required by court which are wholly without support order to allow the father to see the child, she prohibits the in the record. On the other hand, father from seeing the child. our broad scope of review does not authorize us to nullify the factfinding Based upon all of these facts, the Court enters the following function of the trial court in order to conclusions of law. Both mother and father possess good substantiate our judgment for that of parenting skills and are both equally good parents, who are the trial court. Rather, we are bound by dedicated to the child. findings supported in the record, and The mother has generally been uncooperative and difficult may reject conclusions drawn by the with the father's partial custody and this has not served the trial court only if they involve an error child's best interest; the father would do more *157 to of law, or are unreasonable in light promote partial custody today than the mother. If this court of the sustainable findings of the trial were to decide this case solely on the factor of cooperation court. between the parents and the variable of which of these parties would be more conscientious in allowing the other to see the child, it would decide this case for the father; but Lee, at 725. Our review of the record finds that Judge Baer that is only one factor to be considered, and, after reviewing adequately focused on the **708 hostilities between mother it carefully, it is not a sufficient factor in this case to justify and father which caused mother to hinder the relationship a removal of the child from the mother and awarding of between father and the minor child. We find the following custody of the child to the father. discussion of the lower court opinion: Judge Baer examined mother's recalcitrance in hindering The father has a close and supportive relationship with his father's access to the minor child and specifically determined family, which has helped the father and supplies a *156 that it was not a compelling factor to award physical supportive, loving environment for the child. The would custody to father. Thus, Judge Baer appropriately drafted a also be of benefit to the child and will be of benefit to the specific custody order to preclude mother from denying father child as the child grows.... Between the fall of 1987, when access to Jason. Furthermore, Judge Baer also concluded the father returned to the marital residence, and the fall of that mother moved to Maryland for better job opportunities 1988, when the mother left the marital residence, the father in her chosen profession. We therefore find that Judge saw the child extensively and developed a good, loving, Baer adequately addressed the concerns found compelling in supportive father-son relationship with the child. When the Gruber, supra. His conclusions are supported by the record mother left the home permanently in the fall of 1988, the 4 father's relationship was cut off by the mother's unilateral and are reasonable. We will not disturb them on appeal. actions until January 1989. Since January of 1989, the father has remained a part of the child's life and has done [10] Finally, appellant argues that the trial court erred as well as could be done to establish and maintain his role in excluding evidence of job opportunities and salaries in as father under difficult circumstances. The father is a good the Pittsburgh area and in finding that the mother had father, who participates actively in the child's life and has legally compelling reasons to move. After careful review, we a close and loving relationship with the child. find appellant's argument meritless. A trial court has wide discretion in ruling on the relevancy of evidence, and its The mother left the marital residence permanently in the rulings thereon will not be **709 reversed absent an abuse fall of 1988 and prohibited the father from seeing the child, of discretion. Dunkle v. West Penn Power Co., 400 Pa.Super. with one exception of four hours for the next hundred days. 334, 337, 583 A.2d 814, 815 (1990). Evidence which “tends The mother, after establishment of the court order at the *158 to establish facts in issue or in some degree advance end of that hundred days. abided by that court order by the inquiry” is relevant. Scullion v. EMECO Industries, Inc., and large; however, the mother has treated the court order 398 Pa.Super. 294, 301, 580 A.2d 1356, 1360 (1990). mechanically and she has shown no recognition of any need for flexibility to observe the child's best interests. The [11] In this case, father attempted to introduce evidence mother has generally not made the child available for the that mother made certain wages between 1982 and 1985. father's telephone calls. The mother concedes candidly that He argues that this evidence tends to prove that she could

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 7 Plowman v. Plowman, 409 Pa.Super. 143 (1991) 597 A.2d 701 have obtained employment in the Pittsburgh area instead of as the employment rate, the financial status of the Pittsburgh relocating to Maryland. We do not dispute that father may economy, and mother's educational achievements after 1982, have an effect on her subsequent job search. We find no abuse inquire into mother's motives in moving to Maryland. Gruber, of discretion in the trial court's exclusion of this evidence. supra. Nor do we dispute that mother's ability to obtain similar employment in Pittsburgh may be relevant to her motives. Order affirmed. However, the relationship between the evidence offered here and mother's present ability to find similar work in Pittsburgh is tenuous at best. Mother had studied to become medical assistant. Therefore, evidence not relating to her job search McEWEN, J., concurs in the result. in that profession would be irrelevant. Moreover, her ability to obtain employment in 1982 does not have any impact on All Citations her ability to find employment in 1989. External factors, such 409 Pa.Super. 143, 597 A.2d 701

Footnotes 1 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 without permission of the court under the circumstances enunciated, the trial court should utilize its contempt powers to force the 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 aside their 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 trial court. This court has consistently held that it is inappropriate for the Superior Court to make factual determinations based upon conflicting evidence. Lanard & Axilbund, Inc. v. Muscara, 394 Pa.Super. 251, 259–60, 575 A.2d 615, 619 (1990).

Discretion The Superior Court reviews a trial court's KeyCite Yellow Flag - Negative Treatment determination in a custody case for an abuse of Distinguished by R.L.T. v. L.A.T., Pa.Super., March 18, 2015 discretion, and its scope of review is broad. 96 A.3d 396 Superior Court of Pennsylvania. 9 Cases that cite this headnote S.W.D., Appellant v. [2] Child Custody S.A.R., Appellee. Questions of Fact and Findings of Court Because the Superior Court cannot make Argued Jan. 30, 2014. independent factual determinations, it must | accept the findings of the trial court that are Filed July 11, 2014. supported by the evidence in child custody case.

Synopsis 17 Cases that cite this headnote Background: Father filed a petition for special relief that sought to change child's school and modify the custody schedule. The Court of Common Pleas of Armstrong County, [3] Child Custody Civil Division, No. 2009–0579, Panchik, J., denied father's Questions of Fact and Findings of Court petition. Father appealed. Child Custody Credibility of witnesses The Superior Court defers to the trial judge Holdings: The Superior Court, No. 1481 WDA 2013, Stabile, regarding credibility and the weight of the J., held that: evidence in child custody case.

1 Cases that cite this headnote [1] the trial court did not have to consider the statutory child custody factors when ruling on father's petition to determine child's school; [4] Child Custody Questions of Fact and Findings of Court [2] the trial court's determination that the school mother The trial judge's deductions or inferences from its wanted child to attend was in child's best interest was not an factual findings do not bind the Superior Court abuse of discretion; and in child custody case.

[3] the trial court abused its discretion when it failed to 3 Cases that cite this headnote consider the statutory child custody factors before ruling on father's petition for special relief. [5] Child Custody Questions considered Affirmed in part; vacated in part; remanded. Child Custody Questions of Fact and Findings of Court Procedural Posture(s): On Appeal. The Superior Court may reject the trial court's conclusions in child custody matter only if they involve an error of law or are unreasonable in West Headnotes (11) light of its factual findings.

17 Cases that cite this headnote [1] Child Custody Review Child Custody [6] Child Custody Welfare and best interest of child

When a trial court orders a form of custody, the with mother's chosen school was its distance best interest of the child is paramount. from his home, and there was no evidence that child would receive a substandard education at 88 Cases that cite this headnote mother's chosen school.

8 Cases that cite this headnote [7] Child Custody Decision and findings by court A trial court's failure to place its reasoning [11] Child Custody regarding the statutory child custody factors on Joint custody the record or in a written opinion is an error of The trial court abused its discretion when it failed to consider the statutory child custody law. 23 Pa.C.S.A. § 5328(a). factors before ruling on father's petition for 17 Cases that cite this headnote special relief, which sought to modify the parties' custody schedule. 23 Pa.C.S.A. §§ 5323(a), [8] Child Custody 5328(a). Multiple factors Child Custody 5 Cases that cite this headnote Decision and findings by court A trial court must apply the statutory child custody factors and issue a written explanation of its decision when it orders any of the seven forms Attorneys and Law Firms of custody provided for by the Child Custody *397 Robin L. Frank, Pittsburgh, for appellant. Act. 23 Pa.C.S.A. § 5328(a). Kenneth R. Harris, Jr., Butler, for appellee. 16 Cases that cite this headnote BEFORE: BOWES, WECHT, and STABILE, JJ.

[9] Child Custody Opinion Education OPINION BY STABILE, J.: The trial court did not have to consider the statutory child custody factors when ruling on In this child custody case, S.W.D. (Father) appeals an order father's petition to determine child's school; the that denied his petition for special relief. Father had requested trial court did not change the form of legal the trial court to order his and S.A.R.'s (Mother) son, B.A.D. custody. 23 Pa.C.S.A. § 5328(a). (Child), to be enrolled in the school of Father's choice and to ratify an informal change to the physical custody schedule. 98 Cases that cite this headnote Regarding Child's schooling, we hold the trial court did not abuse its discretion in ordering Child enrolled in the school of Mother's choice. Regarding physical custody, however, [10] Child Custody Education we hold the trial court erred by not addressing all the child custody factors as required by the Child Custody Act (Act), The trial court's determination that the school mother wanted child to attend was in child's 23 Pa.C.S.A. §§ 5323(d), 5328(a). We therefore affirm best interest was not an abuse of discretion, in in part, vacate in part, and remand to the trial court for proceeding to determine whether child would proceedings consistent with this opinion. attend the school mother recommended or the school father recommended; father conceded that enrollment at his chosen school would only *398 I be temporary, father admitted that his problem

This case began when Father filed a complaint for custody After the hearing, the trial court denied Father's petition. In of Child. The trial court held a full hearing, and issued a its written memorandum, the trial court, after quoting 23 1 final custody order dated January 8, 2010. Under the order, Pa.C.S.A. § 5328(a), explained its decision as follows: Mother and Father have shared legal custody. Mother has primary physical custody. Father has partial physical custody Considering all those factors above that are relevant to every Tuesday from 5:30 p.m. until Thursday at 5:30 p.m., the issues now before us, we find that it is in the Child's and every other weekend from Friday at 5:30 p.m. until best interest to remain enrolled at West Hills Primary Sunday at 5:30 p.m. Sometime in September 2012, the parties School, with the parties continuing to follow the custody informally agreed to modify their custody arrangement to a schedule set forth in the [c]ourt's January 8, 2010 Order. 5–2–2–5 schedule (the “informal change”). 2 The parties both understood that enrollment at Harvest Baptist Academy would potentially, if not likely, be a In April 2013, Father filed a petition for special relief raising temporary arrangement. The Child would then have to two issues: Child's schooling and a change to the custody change schools *399 and school districts late on in his schedule. Father asked the trial court to approve his choice educational career, which we find to be unnecessary and not of school and to ratify the informal change to custody, which suited to maintaining consistency in his life. We further find he believed was a modification to the January 8, 2010, final that Father's chief concern with West Hills Primary School custody order. The trial court held an evidentiary hearing on is not its academic reputation, but instead its distance from August 2, 2013. Father and Mother were the only witnesses his residence. Although we are not unsympathetic to a who testified. parent's difficulty and expense in providing transportation for custody exchanges, we do not find Father's concern in At the time of the hearing, Child was five years old and this regard to be weighty enough to warrant the move to about to enter kindergarten. He had attended preschool Harvard Baptist Academy. We have been presented with in Worthington, Armstrong County, not far from Mother's no competent, persuasive evidence that the Child cannot residence. Father wanted to place Child in Harvest Baptist receive a quality education at West Hills Primary, which Academy, a private Christian school in Westmoreland will be free of charge to the parties. We therefore will order County, closer to where Father lives. Father preferred Harvest that the Child remain enrolled there. Baptist Academy because it would shorten his time to take With regard to the parties' physical custody schedule, we Child to school following his custody days. Harvest Baptist note that the schedule contained in the January 8, 2010 Academy is about 8.5 miles from Father's residence and Order was never changed in this [c]ourt. The parties, of 13.5 miles from Mother's. Father also considered Mother's course, are free to modify the order as they see fit. However, religion, Baptist, in choosing a school. Father intended to we have been presented with no evidence to suggest that pay the school's tuition, except that he wanted Mother to the current 5–2–2–5 schedule is more in the Child's best contribute about $80.00 per month, the same amount she interest than the previous schedule that the [c]ourt ordered had been paying for preschool. Though Harvest Baptist after a full custody hearing. We also are convinced that Academy teaches students in kindergarten through 12th the current schedule was intended by the parties to be grade, Child's enrollment there was to be only temporary, temporary in nature, subject to the discontinuance if either because Mother's school district offers more classes and of the parties became unsatisfied with it or believed it extracurricular activities. to be unbeneficial to the Child. The parties thus should continue the custody schedule contained in the January 8, Mother instead enrolled Child in West Hills Primary School, 2010 order, except as they may otherwise mutually agree. where she lives, in Armstrong School District. Despite having shared legal custody, Mother did so without Father's Trial Court Opinion, 8/14/13, at 6–7 (emphasis in original). knowledge or consent, and omitted his name and information The trial court ordered (1) Child to be enrolled at West Hills from all of Child's educational records. Mother preferred West Primary for the 2013–14 school year; (2) Mother to provide Hills Primary School because it would be more permanent, West Hills Primary with Father's contact information and and Child would not have to change schools or school designate Father as a legal parent or guardian; and (3) the districts. Also, Child already knew several children from parties to follow the final custody order entered on January attending preschool there. 8, 2010. The trial court deemed the first two provisions non- negotiable.

Father timely appealed to this Court and filed a concise III statement of errors complained of on appeal. In response, the trial court issued a Rule 1925(a) memorandum resting on its previous opinion, except to additionally address Father's A contention that the court abused its discretion in maintaining the custody schedule established by the January 8, 2010 order. Under the Child Custody Act,

Father presents four issues for our review: After considering the factors set forth in section 5328 (relating to factors to consider when awarding custody), the I. Whether the trial court abused its discretion by denying court may award any of the following types of custody if it Father's request to enroll the minor child in Harvest is in the best interest of the child: Baptist Academy, which is contrary to the best interests of the Child? (1) Shared physical custody.

II. Whether the trial court committed an abuse of discretion (2) Primary physical custody. by failing to enforce the established status quo custody (3) Partial physical custody. schedule and by instead reinstating the custody schedule from a past order of court? (4) Sole physical custody.

III. Whether the trial court committed an abuse of (5) Supervised physical custody. discretion by denying Father's request to enroll the Child in the Harvest Baptist Academy, which is against the (6) Shared legal custody. weight of the evidence presented at trial? (7) Sole legal custody. IV. Whether the trial court committed an abuse of discretion and erred in failing to consider all of the custody factors 23 Pa.C.S.A. § 5323(a). 3 set forth in 23 Pa.C.S.A. § 5328(a), and by failing to account for the required factors in reaching its decision? In this case, the parties have shared legal custody of Child. “Legal custody” is defined as “[t]he right to make major Appellant's Brief at 12. For ease of discussion, we first decisions on behalf of the child, including, but not limited address the schooling issue. We then turn to the request to to, medical, religious and educational decisions.” Id. § 5322. ratify *400 the informal change to the custody schedule. “Shared legal custody” is the right of more than one individual to legal custody. Id. Mother has primary physical custody, or the right to assume actual possession and control of Child for the majority of the time. Id. Father has partial physical II custody, i.e., the right to physical custody for less than a [1] [2] [3] [4] [5] We review a trial court'smajority of the time. Id. determination in a custody case for an abuse of discretion, and The Act defines the various forms of custody as the “right” of our scope of review is broad. M.P. v. M.P., 54 A.3d 950, a party to make decisions for the child, or to exercise physical 953 (Pa.Super.2012). Because we cannot make independent control over the child. Id. § 5322. Thus, in ordering a form factual determinations, we must accept the findings of the of custody, the trial court dictates which party has the right trial court that are supported by the evidence. Id. We defer to custody. to the trial judge regarding credibility and the weight of the evidence. Id. The trial judge's deductions or inferences from [6] When a trial court orders a form of custody, the best its factual findings, however, do not bind this Court. Id. We may reject the trial court's conclusions only if they involve an interest of the child is paramount. J.R.M. v. J.E.A., 33 error of law or are unreasonable in light of its factual findings. A.3d 647, 650 (Pa.Super.2011). To determine the child's best Id. interest, the trial court must consider the following 16 factors

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 S.W.D. v. S.A.R., 96 A.3d 396 (2014) 2014 PA Super 146 when “ordering any form of custody.” 23 Pa.C.S.A. § (15) The mental and physical condition of a party or 5328(a). Those factors are: member of a party's household.

(1) Which party is more likely to encourage and permit (16) Any other relevant factor. frequent and continuing contact between the child and another party. 23 Pa.C.S.A. § 5328(a). 4 (2) The present and past abuse committed by a party or member of the party's household, whether there is a Our decision here requires us to provide clarification on when continued risk of harm to the child or an abused party a court is obligated to address all the best interest factors and which party can better provide adequate physical under 5328(a) of the Act. In construing a statute, we must safeguards and supervision of the child. ascertain the intent of the General Assembly. 1 Pa.C.S.A. § 1921(a). The unambiguous terms of a statute are the clearest (3) The parental duties performed by each party on behalf expression of the legislature's intent. Id. § 1921(b). If the of the child. terms of a statute are ambiguous, we may resort to interpretive aids, including legislative history, former statutes on the same *401 (4) The need for stability and continuity in the subject, and the consequences of a particular interpretation. child's education, family life and community life. Id. § 1921(c). We interpret words and phrases according to the rules of grammar and according to their common and (5) The availability of extended family. approved usage. Id. § 1903. When parts of a statute related to (6) The child's sibling relationships. the same thing, we must construe those parts in pari materia. Id. § 1932. (7) The well-reasoned preference of the child, based on the child's maturity and judgment. [7] The Act requires a court to consider all of the § (8) The attempts of a parent to turn the child against the 5328(a) best interest factors when “ordering any form of other parent, except in cases of domestic violence where custody.” 23 Pa.C.S.A. § 5328(a) (emphasis added). reasonable safety measures are necessary to protect the child from harm. Sections 5323(a) and (d) reinforce this mandate by requiring a court to delineate the reasons for its decision when (9) Which party is more likely to maintain a loving, making an award of custody either on the record or in a written stable, consistent and nurturing relationship with the child opinion. Mere recitation of the statute and consideration of adequate for the child's emotional needs. 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 (10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and to place its reasoning regarding the § 5328(a) factors on special needs of the child. the record or in a written opinion is an error of law. J.R.M., (11) The proximity of the residences of the parties. 33 A.3d at 652. Accordingly, in C.B., when the trial court merely stated that it had considered the § 5328(a) factors, (12) Each party's availability to care for the child or ability we held that the trial court's on-the-record explanation was to make appropriate child-care arrangements. insufficient under the statute. *402 C.B., 65 A.3d at (13) The level of conflict between the parties and the 950–51. Similarly, in M.P., we found error where the trial willingness and ability of the parties to cooperate with one court listed the § 5328(a) factors but failed to apply them. another. A party's effort to protect a child from abuse by another party is not evidence of unwillingness or inability M.P., 54 A.3d at 955–56. to cooperate with that party.

(14) The history of drug or alcohol abuse of a party or We must construe § 5328(a) (requiring consideration of member of a party's household. the sixteen factors) and § 5323(a) and (d) (listing the forms of custody that a trial court may award) in pari materia,

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 S.W.D. v. S.A.R., 96 A.3d 396 (2014) 2014 PA Super 146 since they relate to the same subject. Furthermore, because motions. But our statutes require the Act does not define “form of custody,” we must interpret neither a consideration of all sixteen that phrase according to common and approved usage. factors nor delineation of the court's rationale on the record unless the [8] In context, the common meaning of “form” is “a kind, ruling awards custody or modifies type, or variety.” American Heritage Dictionary (5th ed. an award of custody. 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) factors M.O., 85 A.3d at 1063 n. 4 (emphasis added). and issue a written explanation of its decision when it orders any of the seven forms of custody provided for by the Act. Other of our decisions interpreting the new Act are instructive, as well. In C.B., the trial court awarded primary Not every decision by a trial court in a custody case, however, physical custody of the children to their paternal uncle, who entails an award of a form of custody. Our recent decision had recently separated from the children's other guardian, in M.O. v. J.T.R., 85 A.3d 1058 (Pa.Super.2014), is their paternal aunt. C.B., 65 A.3d at 948. In J.R.M., the illustrative. In that case, the trial court decided a “discrete and trial court entered an order establishing a legal and physical narrow issue ancillary to a materially unchallenged custody custody regime for the parties. J.R.M., 33 A.3d at 649–50. arrangement,” i.e., whether Father needed to take time off In both cases, the trial court ordered a form of custody listed at from work when he had custody of the children over summer § 5323(a) of the Act. Therefore, the trial courts were required vacation. Id. at 1059–60 (emphasis added). We held that to consider and apply all the § 5328(a) factors. C.B., the trial court was not required to address the § 5328(a) 65 A.3d at 949, J.R.M., 33 A.3d at 652; see also A.V. v. factors. “Because the trial court did not make an award of S.T., 87 A.3d 818, 824 (Pa.Super.2014) (“[A]s with any award custody, but merely modified a discrete custody-related issue, of custody, the court was required to apply the Section it was not bound to address the sixteen statutory factors in 5328(a) *403 custody factors regarding the best interests of determining the Children's best interest.” Id. at 1063. Thus, Children and to explain the reasons for its decision.”). the discrete and ancillary issue in M.O. did not require the trial court to order any form of custody. Therefore, though It also is true that resolution of an otherwise ancillary matter the trial court was required to consider the children's best may affect a form of custody and require consideration of interests, it did not need to specifically address all the § the § 5328(a) factors. For instance, the choice of a child's 5328(a) best interest factors. Instead, we stated: school may factor into a trial court's decision to award a form of custody when the trial court is addressing a request to establish or change legal or physical custody in connection Many custody-related issues raised in with the choice of school. One parent in a custody dispute may motions are similar to the one in the argue that he or she is entitled to primary physical custody case: a single discrete and narrow issue because his or her residence has much better schools. On ancillary to the award of custody. It the other hand, many times—like here—these items may would be burdensome for a trial court appear as independent, discrete issues advanced by motion or to have to consider all sixteen factors petition that does not require a change in the form of custody. explicitly on the record every time Although any decision requires consideration of the child's a litigant argues a motion seeking, best interest, only the former situation requires consideration for example, to change the custody and application of the § 5328(a) factors. exchange location or to decide whether a child plays sports in one parent's municipality or the other's. Without a A reading of the § 5328(a) factors further supports our doubt, a trial court must consider a interpretation that all these factors only must be considered child's best interest in ruling upon such when a “form of custody” is ordered. Most of the § 5328(a)

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 6 S.W.D. v. S.A.R., 96 A.3d 396 (2014) 2014 PA Super 146 factors are better suited to addressing the larger issue of the court did not change the form of legal custody. 6 Rather, form of custody to be awarded, rather than considerations it merely acted as an arbiter, and decided Child's place of beneficial to resolving discrete and ancillary disputes relating schooling because the parties could not agree on this issue. to custody. In the latter, the considerations that could affect a trial court's decision are myriad. Thus, it makes little sense We long have recognized that, when parties share legal for a trial court to analyze each of the sixteen 5328(a) factors custody of a child, they may reach an impasse in when arbitrating, for example, a dispute over a custody- making decisions for the child that implicate custody. exchange location; which youth sports the children should When that happens, the parties turn to the trial court play; or whether a parent should be required to have children's to decide their impasse. See, e.g., Staub v. Staub, toys, beds, or other things in his or her house. 5 Rather, when 960 A.2d 848 (Pa.Super.2008) (deciding between public read as a whole, it is apparent that the § 5328(a) factors and home schooling); Fox v. Garzilli, 875 A.2d 1104 were designed to guide the best-interest analysis when a trial (Pa.Super.2005) (ordering that children would attend school court is ordering which party has the right to a form of in mother's school district); Dolan v. Dolan, 378 Pa.Super. custody. 321, 548 A.2d 632 (1988) (deciding between public and parochial school). This type of court intervention does not We emphasize that in all matters affecting custody, the child's affect the form of custody and hence, the 5328(a) best interest best interest is still paramount. See M.O., 85 A.3d at 1063 factors do not all have to be considered. (“However, under Section 5338, the trial court was required to determine that the modification that it did order was in the

Children's best interest.”). The § 5328(a) factors, however, C are a means to that end, and represent a legislative framework for determining a form of custody that is in a child's best [10] Next, Father contends that the trial court abused its interest. Even where a trial court need not consider and discretion in finding that Mother's place of schooling was in Child's best interest. We do not agree. In making its address the § 5328(a) factors, it still must consider the decision, the trial court noted several factors that weighed child's best interest in custody matters. in favor of attendance at West Hills Primary School. Father conceded that enrollment at Harvest Baptist Academy was to be temporary. The trial court found attendance there would B not be in the best interest of Child, as it would require Child to change schools and not be suited to maintaining consistency [9] In this case, the trial court acknowledged the § in his life. Trial Court Opinion, 8/14/13, at 6. The trial court 5328(a) factors, but it did not consider them when deciding also found that Father's chief concern with Mother's school the legal custody issue—the place of child's schooling. The was its distance from his home. Id. While the trial court was failure to address all factors under 5328(a) did not constitute sympathetic to this concern, on balance it did not find this to reversible error, because the trial court was not required to be weighty enough to warrant attendance at Harvest Baptist Academy. Id. Finally, the trial court found no persuasive consider and apply all the § 5328(a) factors. In deciding evidence that Child would receive a substandard education at that Child should attend West Hills Primary School, the trial West Hills Primary School. Id. On these findings, supported court did not order a form of custody. While the choice of by record evidence, we cannot find an abuse of discretion. where a child will attend school is not trivial and certainly is a major life decision, the court's decision here merely resolved See, e.g., C.B., 65 A.3d at 956 (noting that we defer to the an impasse between the parties who shared the legal right to trial court regarding the weight of the evidence). Therefore, make this decision. Stated another way, the trial court merely we must affirm that portion of the trial court's order pertaining arbitrated a dispute between Mother and Father regarding to Child's schooling. *404 schooling, instead of granting one of them the right to make that decision. The trial court did not alter the custody regime by allowing either Mother or Father the sole right to IV make decisions regarding Child's schooling. Here, the trial

We now turn to Father's contention that the trial court abused (citing Seger v. Seger, 377 Pa.Super. 391, 547 A.2d 424 its discretion in failing to enforce the informal change to the (1988)). Apart from these procedures authorized under the custody schedule. Child Custody Act and Rules, the filing of a proper petition also serves the important purpose of providing notice and an opportunity to be heard to satisfy the requirements of due A process attendant to custody proceedings. Id. Thus, while it is generally true efforts seeking to modify custody may be The trial court questioned whether it could address Father's filed at any time, courts cannot allow parties to forgo the request to modify *405 the custody schedule, since Father general notice requirements which otherwise must be strictly had not presented it with a petition to modify custody. observed. Id. Instead, Father filed a petition for special relief. The rules governing the practice and procedure in all actions for legal While it is the appropriate practice under the Act and the Rules and physical custody of a minor child contemplate that of Civil Procedure to file a pleading entitled a “petition to commencement of a custody action begin with the filing of modify custody” to seek modification of a custody order, this a complaint. Pa.R.C.P. No. 1915.3. As we have stated, in Court has held nonetheless, that if notice of the proceeding awarding any form of custody, the court must address each adequately advises a party that custody *406 will be at issue, of the best interest custody factors under § 5328(a). At a court may entertain the request to permanently modify a any time after commencement of an action however, a court custody order after hearing in that proceeding. Guadagnino, on application or its own, is empowered to order emergency 646 A.2d at 1262. We therefore, held in Guadagnino that the or interim special relief. Pa.R.C.P. Nos. 1915.4(e), 1915.13. court could properly consider a request to modify custody Special relief may include an award of temporary legal or in a proceeding to determine if a parent should be held physical custody. Pa.R.C.P. No. 1915.13. A court is given in contempt, so long as there was adequate notice that the this authority so that it may address emergency situations custody order would be challenged. Id. In that case, the and to protect a child until a final hearing can be held and a petition for contempt filed provided adequate notice the custody order would be challenged. The trial court properly permanent custody order can be entered. Id.; 23 Pa.C.S.A. conducted the hearing tailored to the issues at hand. Id. § 5323(b) (allowing interim award of custody in the manner prescribed by the Pennsylvania Rules of Civil Procedure Turning now to the instant case, Father initiated proceedings governing special relief); see also Choplosky v. Choplosky, before the trial court by the filing of a petition for special relief. While the principal focus of that petition concerned 400 Pa.Super. 590, 584 A.2d 340 (1990) (citing Steele v. where Child would attend school, the petition also pled 7 Steele, 376 Pa.Super. 174, 545 A.2d 376 (1988)). Where a and requested as relief, that the trial court enforce the court temporarily modifies a custody order under the special informal change Father maintains was agreed to between relief provision of Rule 1915.13, its order may only serve the parties that modified the January 8, 2010 custody order. as an interim or temporary measure until the parties can Thus, while the pleading filed was entitled a “Petition for prepare to resolve more permanently the custody issue at Special Relief,” thereby on its face suggesting that temporary hand. Choplosky, 584 A.2d at 343. relief was being requested, an examination of the pleading reveals that the pleading was in fact one whereby Father was Once a custody order is in place, both Section 5338 of the seeking modification to the January 8, 2010 custody order by Act, 23 Pa.C.S.A. § 5338, and Pa.R.C.P. No. 1915.15, permit requesting a change in legal and physical custody. Contrary to a court, upon petition, to modify a custody order. 8 This Court its belief, the trial court would not have abused its discretion has held that the appropriate manner to bring about a change by modifying the January 8, 2010 custody order, if it deemed in custody is by the filing of a petition for modification, which that in the best interest of Child, based upon the pleading filed, would follow generally, the procedure under Pa.R.C.P. No. even though it was not entitled a “Petition for Modification.” Mother was provided adequate notice that modification of the 1915.3. Choplosky, 584 A.2d at 342–43. A petition for January 8, 2010 custody order was to be at issue at hearing. modification must be filed in order for a court to review a case for permanent modification of a custody order. Id. at 342

Here, while the trial court found no evidence that the informal B change was in Child's best interest, it did not address all the [11] Under the January 8, 2010 order, Mother had primary § 5328(a) best interest factors. Its *407 failure to do physical custody of Child, and Father had partial physical custody for six nights out of every two weeks. Around so constitutes an abuse of discretion. See, e.g., J.R.M., September 2012, the parties agreed to the informal change, 33 A.3d at 652. Therefore, we are constrained to vacate the under which they started to follow a 5–2–2–5 schedule. The portion of the trial court's order pertaining to physical custody, informal change gave Father an extra night of custody every and remand for preparation of an opinion that addresses all two weeks. He contended that the informal change was the the § 5328(a) best interest factors. “status quo,” see supra, note 2, and asked the trial court to formally ratify it as such. In light of the above, we reject Mother's contention that the trial court properly considered all of the § 5328(a) factors Mother, for her part, argued that the informal change was based upon the trial court summarily stating it considered all temporary. She contended that the parties were actually factors relevant to the issues before the court. As noted, a following the schedule mandated by the January 8, 2010 order at the time of the hearing in August 2013. Father agreed court cannot merely recite the § 5328(a) factors and state it that they had resumed the January 8, 2010 order's schedule considered them generally. C.B., 65 A.3d at 950–51. Our once Child left preschool in May 2013. N.T. Special Relief decisions require consideration of each factor as each may Hearing, 8/2/13, at 10. The trial court agreed with Mother's affect the custody to be awarded. Id. version of the facts. For the foregoing reasons, we affirm the portion of the Regardless of which schedule the parties were following, trial court's order pertaining to Child's schooling. We vacate Father's petition for special relief placed the issue of physical the portion of the order concerning the change to physical custody before the trial court. By asking the court to ratify custody, and remand for preparation of an opinion and order the informal change, Father was requesting a modification of physical custody. This compelled the trial court to decide specifically addressing all the factors under 23 Pa.C.S.A. which physical custody arrangement was in Child's best § 5328(a) on the issue of physical custody. 9 The trial court interest, squarely implicating an award of a form of custody must issue its opinion and order within 30 days of the date on under 23 Pa.C.S.A. § 5323(a). Therefore, the trial court which the certified record is returned. was required to consider all the § 5328(a) best interest Order affirmed in part and vacated in part. Case remanded factors. Even if the trial court only reaffirmed its prior order, with instructions. Jurisdiction relinquished. it nonetheless was ruling upon a request to change the form of physical custody and, therefore, bound to decide whether Judgment Entered. the prior order remained in Child's best interest.

All Citations

96 A.3d 396, 2014 PA Super 146

Footnotes 1 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 of the amendment is January 1, 2014, so it does not apply here.

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 9 S.W.D. v. S.A.R., 96 A.3d 396 (2014) 2014 PA Super 146 5 Many times in custody disputes, the parties ask the trial court to decide minor issues. We recognize that the state cannot raise children and that our courts are ill equipped to decide such issues. Nothing in our opinion should be read as encouraging 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 select Child's school. N.T. Special Relief Hearing, 8/2/13, at 5. However, as the trial court noted, Father had not requested that relief 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 required to modify the parties' physical custody arrangement. This is particularly so when the parties live far apart, making it impractical 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, were decided prior to the current Act, effective January 24, 2011, and the current version of Rule 1915.13, for purposes of the issues 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 custody even 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 court may 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 relief on the merits. V.B. is clearly distinguishable. In V.B., this Court found that the trial court clearly abused its discretion in fashioning its custody award and that the record was sufficiently developed to permit this Court to substitute its judgment for that of the trial court. These conditions clearly do not present in this case.

192 A.3d 1155 West Headnotes (22) Superior Court of Pennsylvania.

S.T., Appellant [1] Child Custody v. Review R.W. Child Custody Discretion No. 1748 MDA 2017 In reviewing a child custody order, the Superior | Court's scope is of the broadest type and standard Submitted March 26, 2018 is abuse of discretion. | Filed June 29, 2018

Synopsis [2] Child Custody Background: Incarcerated mother filed petition for Questions of Fact and Findings of Court modification seeking supervised physical custody of child in In child custody cases, the Superior Court order to have telephone communication and correspondence. must accept findings of the trial court that are The Court of Common Pleas, Schuylkill County, Civil supported by competent evidence of record, as Division, No. S-1652-2008, John E. Domalakes, J., denied its role does not include making independent mother's motion for telephone contact and awarded sole legal factual determinations; however, it is not bound custody to father. Mother appealed. by the trial court's deductions or inferences from its factual findings.

2 Cases that cite this headnote Holdings: The Superior Court, No. 1748 MDA 2017, Kunselman, J., held that: [3] Child Custody [1] trial court committed reversible error in failing to provide Questions considered mother with notice of her right to request that she be present Child Custody at hearing; Questions of Fact and Findings of Court In child custody case, the test is whether the trial [2] trial court's procedure afforded mother no meaningful court's conclusions are unreasonable as shown by opportunity to advocate for herself during custody hearing; the evidence of record and the Superior Court may reject the conclusions of the trial court [3] trial court erroneously determined extent of mother's only if they involve an error of law or are supervised physical custody without proper consideration of unreasonable in light of the sustainable findings all relevant factors; and of the trial court.

[4] trial court erred in awarding father with sole legal custody. 3 Cases that cite this headnote

Vacated and remanded. [4] Appeal and Error Constitutional Rights, Civil Rights, and Procedural Posture(s): On Appeal; Motion to Modify Order Discrimination in General or Judgment. A question regarding whether a due process violation occurred is a question of law for which the standard of review is de novo and the scope of review is plenary. U.S. Const. Amend. 14.

Procedural due process requires, at its core, 2 Cases that cite this headnote adequate notice, opportunity to be heard, and the chance to defend oneself before a fair and [5] Child Custody impartial tribunal having jurisdiction over the Presence of parent or custodian case. U.S. Const. Amends. 5, 14.

Constitutional Law 4 Cases that cite this headnote Child custody, visitation, and support Prisons [9] Constitutional Law Presence or appearance Factors considered; flexibility and Witnesses balancing Habeas corpus ad testificandum Due process is flexible and calls for such Trial court's failure to provide incarcerated procedural protections as the situation demands. mother with notice of her right to request U.S. Const. Amends. 5, 14. that she be present at custody hearing, through writ of habeas corpus ad testificandum, 1 Cases that cite this headnote violated due process, in proceeding on mother's petition for modification seeking supervised [10] Child Custody physical custody in order to have telephone Modification communication with child. U.S. Const. Amend. 14. Due process violation in trial court's failure to provide incarcerated mother with notice of her right to request that she be present at hearing was reversible error, in proceeding on mother's [6] Child Custody petition for modification seeking supervised Hearing physical custody in order to have telephone In custody hearings, parents have at stake communication with child, where mother was fundamental rights: namely, the right to make never told of her legal right to seek writ to allow decisions concerning the care, custody, and presence at hearing, and mother was not provided control of their child. any meaningful opportunity to be heard. U.S. Const. Amend. 14. 1 Cases that cite this headnote

[7] Constitutional Law [11] Constitutional Law Notice and Hearing Notice and Hearing Constitutional Law Both notice and an opportunity to be heard, as Child custody, visitation, and support required by due process clause, must be afforded Formal notice and an opportunity to be heard are at a meaningful time in a meaningful manner. fundamental components of due process when U.S. Const. Amend. 14. a person may be deprived in a legal proceeding of a liberty interest, such as physical freedom, or a parent's custody of her child. U.S. Const. [12] Constitutional Law Amends. 5, 14. Notice Notice, as required by due process clause, ensures that each party is provided adequate [8] Constitutional Law opportunity to prepare and thereafter advocate its Notice and Hearing position, ultimately exposing all relevant factors Constitutional Law from which the finder of fact may make an Impartiality informed judgment. U.S. Const. Amend. 14.

could not respond, cross-examine father's points, call witnesses, introduce evidence, or [13] Constitutional Law make objections, as mother was not given Notice and Hearing an opportunity to counter father's assertion regarding the irregularities of telephone access in Constitutional Law prison, and describe the visitation procedures and Impartiality conditions in her facility. U.S. Const. Amends. 5, Procedural due process requires not only 14. adequate notice and an opportunity to be heard, but also the chance to defend oneself before a fair and impartial tribunal having jurisdiction over [17] Child Custody the case. U.S. Const. Amend. 14. Pleading 4 Cases that cite this headnote Incarcerated mother's motion for contact via telephone and correspondence was treated as a petition for modification seeking supervised [14] Constitutional Law physical custody of child; parents had a Child custody, visitation, and support custody order prior to mother's incarceration, Due process mandates that an incarcerated parent her incarceration caused a de facto modification have a meaningful opportunity to expose all the of her physical custody, and mother sought to relevant factors in a custody analysis. U.S. Const. modify the prior custody order so as to align it Amend. 14. with the reality that she was incarcerated so that she could interact with her child through written correspondence and telephone communications. [15] Child Custody 23 Pa. Cons. Stat. Ann. § 5322(b). Weight and Sufficiency Incarcerated parents do not need to make a 4 Cases that cite this headnote prima facie showing that contact with the child is feasible based on custody factors relating to [18] Child Custody logistics. Grounds and Factors Child Custody Presence of child; in camera examination [16] Child Custody or interview Hearing and Determination Trial court improperly failed to consider all Child Custody relevant factors unique to incarceration cases Presence of parent or custodian when ruling on incarcerated mother's petition Constitutional Law for custody modification, seeking supervised Child custody, visitation, and support physical custody of child to allow contact via Prisons telephone and correspondence; the court failed Presence or appearance to consider the emotional or physical effect Trial court's procedure at custody hearing, the requested telephone contact would have amounting to essentially an ex parte hearing with on the child, whether mother had exhibited a father and no appearance by incarcerated mother, genuine interest in child, and whether reasonable afforded mother no meaningful opportunity contacts were maintained in the past, and the trial to advocate for herself and thus violated court failed to interview the child to consider mother's due process rights, in proceedings her preference in communicating with mother on mother's petition for modification seeking through telephone conversations and written supervised physical custody in order to have telephone communications with child; mother

did not have notice or an opportunity to be heard correspondence. 23 Pa. Cons. Stat. Ann. § 5328(a). in the legal custody proceeding. 23 Pa. Cons. Stat. Ann. § 5328(a). 4 Cases that cite this headnote 3 Cases that cite this headnote

[19] Child Custody Child's preference of custodian Although the discretion remains exclusively *1158 Appeal from the Order entered October 10, 2017, with the trial court in considering factors in the Court of Common Pleas of Schuylkill County, Civil when awarding custody, a child's well-reasoned Division at No(s): S–1652–2008. John E. Domalakes, J. preference, based on her age and judgment, could carry more weight in an incarceration case than Attorneys and Law Firms it might otherwise would have. 23 Pa. Cons. S.T., appellant, pro se. Stat. Ann. § 5328(a)(7). Lori A. S. Guzick, Pottsville, for appellee. 1 Cases that cite this headnote BEFORE: GANTMAN, P.J., OTT, J., and KUNSELMAN, J. [20] Child Custody Opinion Modification If a party requests modification of any form of OPINION BY KUNSELMAN, J.: custody, the decision of whether to modify either legal custody or physical custody should be made In this matter, we decide whether the trial court afforded sufficient due process to an incarcerated parent who seeks on a case by case basis. 23 Pa. Cons. Stat. contact with her child. In reaching our conclusion, we Ann. § 5328(a). determine what forms of custody incarcerated parents retain 1 1 Cases that cite this headnote under the 2011 revisions to Pennsylvania Custody Law. And finally, we decide whether the trial court properly analyzed the statutory factors when considering whether to allow an [21] Child Custody incarcerated parent to retain any form of physical or legal Commission of crime custody. Legal custody rights of incarcerated parents do not vanish upon their incarceration. An incarcerated Mother, S.T., appeals the order denying her request for telephone communication with the parties' nine- year-old daughter. The trial court conducted an ex parte [22] Child Custody custody hearing with Father, R.W., without affording Mother Grounds and Factors either notice that she could request to be present, or a Child Custody meaningful opportunity to be heard. The trial court then Hearing and Determination misapplied the current Custody Law. We hold that the court's procedure constituted a violation of Mother's rights to due Trial court erred in awarding father with sole process. We vacate the order and remand for a new hearing. legal custody of child in custody proceeding brought by incarcerated mother in petition for The pertinent facts are these: The parties are parents to a nine- modification of supervised physical custody in year-old daughter. *1159 Father resides with the daughter in attempt to obtain telephone communication and Schuylkill County where he is a corrections officer at State correspondence; trial court failed to apply the Corrections Institute (“SCI”) Mahanoy. At the time of the current custody law analysis for physical and hearing, Mother was incarcerated approximately 90 minutes legal custody or consider the unique situation 2 specific to prison incarceration cases, and mother away at SCI Muncy in Lycoming County. She is a former

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 S.T. v. R.W., 192 A.3d 1155 (2018) 2018 PA Super 192 physician who is serving a prison term of 5 to 10 years for corresponding case law. See Trial Court Opinion (“T.C.O.”), crimes relating to her practice. 3 10/10/17, at 2–3. The court also included an analysis of the current custody *1160 statute's 16 enumerated factors. Although the exact dates remain somewhat disputed, it is See 23 Pa.C.S.A. § 5328(a). Although neither parent uncontested that Mother had not seen, nor spoken with her sought to modify legal custody, the court awarded sole legal daughter since before she began serving her sentence in custody to Father after it determined that Mother was “not March 2014. See N.T., 8/10/17, at 11–12; see also Mother's able to participate effectively in parenting decisions.” See Brief, at 6. Lately, however, Father testified that he has T.C.O., at 3. The court denied Mother's request for telephone encouraged and facilitated written correspondence between contact based on Father's testimony that telephone access for the child and Mother. Id. , at 13. Mother's earliest possible prisoners is irregular and that the child would become upset release is March 2019. if Mother failed to call at a prearranged time. Although it denied Mother's request for telephone communication, the In August 2017, Mother filed a “Motion for Contact trial court allowed Mother to continue to send letters to the via Telephone and Correspondence.” Upon receiving this parties' daughter. pleading, the trial court entered an order scheduling a hearing on the matter. The order notified Mother of the time, place On appeal, Mother presents this question, which we restate and location of the hearing, but limited Mother's participation verbatim: in the hearing to a mere written statement. The court ordered Mother to provide in a written statement the following information: a) her place of incarceration; b) her crimes Did the pro se Appellant [Mother] and their circumstances; c) date of incarceration; d) the suffer extreme prejudice through the sentencing orders; e) the earliest possible date of her release; deprivation of due process rights f) her requested involvement regarding frequency, times when she was prevented from fully and circumstances of her requested telephone contact and participating in a custody hearing correspondence; g) her assertions as to how her proposed where [the trial court] ordered her contact will serve the best interests of the child; and h) any participation to be limited to entering other pertinent material Mother feels will support her request. a pre-hearing written statement to support her “Motion for Contact” with Critically, the trial court did not notify Mother that she had minor child, but permitted [Father] a right to request to be present at the hearing. In the interim, to participate with testimony, which the court sua sponte suspended Mother's physical custody. resulted in an unfair and unjust ruling The court made no arrangements for her transportation to and a loss of parental rights? the hearing, nor for her participation by telephone or video conference. Mother complied with the court's order, and submitted a pre-trial letter with the information the court Mother's Brief, at 4. requested.

Like Father, we construe Mother's presented question as On October 10, 2017, the court held what can only be two discrete issues. See Father's Brief, at 7. First, Mother called an ex parte hearing, which lasted a matter of minutes challenges the trial court's procedure and substantive decision judging by the length of the certified transcript. Father's that resulted in the denial of her request for telephone contact. counsel began with a brief summary before eliciting Father's Second, Mother challenges the procedure and substantive testimony through direct examination. The court engaged in a 5 brief interrogation of Father before the matter was adjourned. decision that resulted in her loss of shared legal custody. Neither Father's counsel nor the court addressed Mother's statement except to acknowledge its existence. The court did [1] [2] [3] Our scope and standard of review of child not interview the child. custody orders are settled:

On the same day, the court issued a brief opinion and order. The court cited to both repealed custody statutes 4 and

[5] [6] In custody hearings, parents have at stake fundamental rights: namely, the right to make decisions In reviewing a custody order, our concerning the care, custody, and control of their child. See scope is of the broadest type and Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 our standard is abuse of discretion. L.Ed.2d 49 (2000); see also U.S.C.A. Const. Amends. 5, 14; We must accept findings of the trial court that are supported by and see *1161 also generally D.P. v. G.J.P., 636 Pa. 574, competent evidence of record, as 146 A.3d 204 (2016). our role does not include making independent factual determinations. In [7] [8] [9] Due process must be afforded to parents to addition, with regard to issues of safeguard these constitutional rights. “Formal notice and an credibility and weight of the evidence, opportunity to be heard are fundamental components of due we must defer to the presiding trial process when a person may be deprived in a legal proceeding judge who viewed and assessed the of a liberty interest, such as physical freedom, or a parent's witnesses first-hand. However, we custody of her child.” J.M. v. K.W., 164 A.3d 1260, 1268 are not bound by the trial court's (Pa. Super. 2017) (en banc ) (quoting Everett v. Parker, deductions or inferences from its 889 A.2d 578, 580 (Pa. Super. 2005) (emphasis added). It factual findings. Ultimately, the test is is well settled that “procedural due process requires, at its whether the trial court's conclusions core, adequate notice, opportunity to be heard, and the chance are unreasonable as shown by the to defend oneself before a fair and impartial tribunal having evidence of record. We may reject the jurisdiction over the case.” Id., at n. 5 (citing Everett v. conclusions of the trial court only if Parker, 889 A.2d 578, 580 (Pa. Super. 2005); see also Garr they involve an error of law, or are v. Peters, 773 A.2d 183, 191 (Pa. Super. 2001). “Due process unreasonable in light of the sustainable is flexible and calls for such procedural protections as the findings of the trial court. situation demands.” See, e.g., In re Adoption of Dale A., II, 453 Pa.Super. 106, 683 A.2d 297, 300 (1996) (citation omitted). C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted). Having established that both formal notice and an opportunity to be heard are due protections, we decide what the situation [4] Our review differs when an appellant presents a due demands when a parent is incarcerated. In Vanaman v. process challenge: Cowgill, 363 Pa.Super. 602, 526 A.2d 1226 (1987), we found that the trial court deprived an incarcerated father of his due process rights in a custody hearing initiated by the mother. A question regarding whether a The father could not attend the hearing while in prison, but due process violation occurred is a the trial court held an ex parte hearing anyway. The resulting question of law for which the standard custody order similarly denied the incarcerated parent any of review is de novo and the scope of visitation. In defending its decision to proceed with the review is plenary. hearing, the trial court reasoned that father, upon receiving notice of the hearing date, had failed to explain or excuse the absence of counsel or to request a continuance. On appeal, we stated that the trial court should have done more, and we Commonwealth v. Tejada, 161 A.3d 313 (Pa. Super. 2017) explained why: (quoting Commonwealth v. Smith, 635 Pa. 38, 131 A.3d 467, 472 (2015). This principle, while perfectly sound in regard to persons at liberty to protect their own interests, requires considerable revision in the context of this and similar cases. The fact I. of [a party's] incarceration places an obligation on the

court to safeguard his due process rights, a responsibility notice of her right to request that she be present at the hearing here ignored. via a writ of habeas corpus ad testificandum. The trial court's failure to provide Mother with this notice is reversible error. Although we have uncovered neither procedural rule nor appellate authority which speaks directly to his issue, lower [10] We recognize that a trial court may grant or deny a courts have in the past concluded that not only notice of writ for habeas corpus ad testifcandum in light of the factors a (civil) hearing is due an imprisoned person, but also set forth in Salemo v. Salemo, 381 Pa.Super. 632, 554 A.2d specific advisement of his right to attend. See Jones v. 563 (1989). See Pa.R.C.P. 1930.4. But whether a writ was Jones, 1 Pa. D. & C.3d 401 (1974) (citations omitted) appropriate in this case is not an issue. Mother was never [ (emphasis added) ]. The court in Jones prescribed a told of her legal right to seek such a writ. Additionally, as we method of implementing exercise of this right based on the discuss below, the trial court also failed to provide Mother issuance of a writ of habeas corpus ad testificandum. [...]. with a meaningful opportunity to be heard.

The steps listed in Jones, although composed in reference to a divorce hearing, are equally applicable here: where the respondent/defendant in an action is incarcerated, notice II. must contain, as well as the usual particulars of the hearing, the statement that respondent/defendant may, if he wishes “Due process is flexible and calls for such procedural to attend, request the court by means of a habeas petition protections as the situation demands.” Sullivan, 650 and writ to make arrangements for transportation to and A.2d at 884 (citing Mathews v. Eldridge, 424 U.S. 319, presence at the hearing. Such a request must be made within 10 days prior to the scheduled date. 334, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). “ Mathews allows the government to tailor the amount of procedural * * * protection to the situation by balancing the marginal value of additional protections against the marginal costs such In situations such as the one before us, not only additional protections would impose on the government.” are the rights of the prisoner/respondent vulnerable to infringement, but those of the child as well since a Id. (Emphasis added). determination of the child's best interests must have its basis in information. [The father's] rights were clearly In Sullivan, a father who was incarcerated near Pittsburgh ignored; *1162 whether his child's have been violated as sought visitation with his daughter who lived in Philadelphia. well remains yet to be seen. The trial court properly provided him a hearing, notice of Vanaman, 526 A.2d at 1227 (emphasis added). In that case, the hearing, and notice of his right to request be at the we remanded for a new custody hearing. hearing. Id. When authorities failed to produce the father, the trial court conducted the hearing *1163 without him. In Sullivan v. Shaw, 437 Pa.Super. 534, 650 A.2d 882, Id. Although we found the court's decision erroneous, we 884 (1994), we stated more succinctly that “[i]ncarcerated articulated that incarcerated parents did not have an absolute prisoners who petition the court for visitation rights are right to be physically present at the hearing. Id. In other entitled to a hearing, to notice of this hearing, and to notice words, the court does not have to grant to writ of habeas of their right to request that they be present at the hearing, by corpus ad testificandum, but an incarcerated parent must still means of a writ of habeas corpus ad testificandum.” Id. be provided an opportunity to be heard. (Citing Vanaman v. Cowgill, 363 Pa.Super. 602, 526 A.2d 1226 (1987) ). This holding has since been codified in both the In 1994, we posited that transporting an incarcerated parent Pennsylvania Rules of Civil Procedure and in the Schuylkill across the state imposed a considerable burden upon the County Local Rules of Procedure. 6 Commonwealth. One solution, we surmised at that time, was to allow the incarcerated parent to file “an informal brief In the case at bar, the trial court set a hearing on the issue with the trial court” where the prisoner-parent could offer and made Mother aware of the date, time and location of the her “solution to the problems of visitation.” Id., at 885. hearing. However, the trial court did not provide Mother with

Then if the prisoner-parent could offer no reasonable means of overcoming the “obstacles of visitation,” we reasoned The informal pre-trial brief sought to kill two birds with one stone: procedural matters and substantive matters. that the trial could dismiss the petition. Id. We concluded Procedurally speaking, the brief satisfied the due process that “allowing the trial court to make such a preliminary balancing because it provided the incarcerated parent with determination upon the prisoner's written submissions best the opportunity to be heard while simultaneously eliminating conserved the Commonwealth's resources without increasing transportation costs—as we noted directly above, those the risk of erroneous deprivation.” Id. The “informal burdens on the Commonwealth have now been virtually brief” in Sullivan is substantially the same as the “written negated. Substantively speaking, the brief outlined the statement” the trial court allowed in the instant case. reasons why the obstacle of incarceration could be overcome (i.e., why visitation is in the child's best interests). In other words, the “informal brief solution” *1164 imposed on a But times have changed. Sullivan, a case nearly a quarter- petitioning incarcerated parent the burden to make a prima century old, predates revisions to both the rules of civil facie showing that visitation would be feasible and in the procedure and the substantive custody law. Now we must child's best interests before the parent was entitled to a full recalibrate the due process balancing and refit the tailoring custody hearing. Whatever the statutory basis was for this of procedural protections. Two and a half decades and holding—presumably § 5302 (“Visitation”)—that basis has a technological revolution after we decided Sullivan, been repealed by our legislature. Nothing in our redrafted communication via telephone and video conferencing is Custody Law allows for this procedure. considerably less expensive and far more readily accessible. The choice is no longer between physical transportation and [11] [12] [13] An “informal brief” or “written statement” exorbitant long distance rates across the state. We cannot submitted prior to the trial cannot possibly equate a say, with current technology, that due process is satisfied meaningful opportunity to be heard under the current state of by allowing an “informal brief” or “written statement” from our substantive and procedural laws. an incarcerated parent. In incarceration cases, telephone or video testimony should now be the practice standard, not the exception. Both notice and an opportunity to be heard must be afforded at a Notably, Sullivan was decided one month before the meaningful time in a meaningful adoption of Pennsylvania Rule of Civil Procedure 1930.3. manner. As previous panels have Rule 1930.3 gives courts a means to accommodate any party explained: notice in our adversarial or witness who may not be available to attend a hearing in process, ensures that each party person. The rule provides: “With the approval of the court is provided adequate opportunity upon good cause shown, a party or witness may be deposed to prepare and thereafter advocate or testify by telephone, audiovisual or other electronic means its position, ultimately exposing all at a designated location in all domestic relations matters.” relevant factors from which the Pa.R.C.P. 1930.3. Neither telephonic, nor audiovisual, nor finder of fact may make an informed electronic communication was even mentioned by the court judgment. in Sullivan. Rule 1930.3 now provides courts with a previously unavailable option. Everett v. Parker, 889 A.2d 578, 580 (Pa. Super. 2005) (internal citations and quotation marks omitted) (emphasis The outdated solution in Sullivan is further magnified added). Recently, we confirmed procedural due process by the changes our legislature made to the Custody Law. requires not only adequate notice and an opportunity to be The “informal brief” allowed in Sullivan is all the more heard, but also “the chance to defend oneself before a fair and problematic because it intertwined proper procedural due impartial tribunal having jurisdiction over the case.’ ” J.M. v. process considerations with the repealed substantive custody K.W., 164 A.3d 1260, n. 5 (Pa. Super. 2017) (en banc ) (citing considerations. Sullivan, 650 A.2d at 885. Everett, 889 A.2d at 580) (emphasis added).

[14] [15] Due process mandates that an incarcerated parent have a meaningful opportunity to expose all the relevant III. factors in a custody analysis. Under the revised Custody Law, incarcerated parents do not need to make a prima facie The changes in our substantive custody laws mandate that showing that contact with the child is feasible based on an incarcerated parent be given more say than a letter to the those custody factors relating to logistics. Parties cannot fully court. Unlike when we decided Sullivan, today we do not address all the relevant factors if trial courts preliminarily consider, as a threshold question, the vague notion whether disqualify them on certain factors before a hearing even visitation with an incarcerated parent would be “impractical” occurs. Additionally, parties cannot expose all the relevant factors if they cannot advocate for themselves in real time, or in the child's “best interests.” See Sullivan, 650 A.2d i.e., cross-examine witnesses of the other party and respond at 885. to arguments. Instead, the current Custody Law requires a court to consider [16] In the instant matter, the trial court's procedure afforded a specific list of 16 factors when “ordering any form Mother no meaningful opportunity to advocate for herself of custody.” S.W.D. v. S.A.R., 96 A.3d 396, 401 (Pa. during the hearing. She could not respond, nor cross-examine Father's points. She could not call witnesses, nor introduce Super 2014) (emphasis added); see also 23 Pa.C.S.A. § evidence. She could not make objections. 5328(a). We have interpreted “form of custody” to mean the seven types of custody listed at 23 Pa.C.S.A. § 5323(a): For illustration, the trial court accepted all of Father's (1) shared physical custody; (2) primary physical custody; testimony regarding his employment experience with (3) partial physical custody; (4) sole physical custody; (5) prisoner visitation at SCI Mahanoy—namely its unsavory supervised physical custody; (6) shared legal custody; and (7) characteristics and the irregularity of telephone access. Because of the court's limiting order, Mother did not have sole legal custody. Id. at 402; see also 23 Pa.C.S.A. § an opportunity to counter Father's assertions and describe 5323. the visitation procedures and conditions at her facility. We cannot say the defect lies with trial court's scheduling order, [17] Our Custody Law no longer provides a statutory basis which outlined for Mother what information she should to seek “visitation.” 7 We must treat Mother's “Motion for submit to the court. Nor can we blame Mother for a written Contact via Telephone and Correspondence” as a petition for statement lacking in this detail. No matter how specific modification seeking supervised physical custody. Mother made—or could have made—her pre-trial written statement, she could never fully defend her position if Father First, we note that custody courts are flexible and treat certain opposed it. Moreover, she could never fully advocate for her petitions (particularly pro se petitions and petitions for special position if she could not oppose Father's. But now that an relief) as modification petitions even though the petitions incarcerated parent has the ability to advocate in real time, at do not strictly comply with Pa.R.C.P. 1915.15 (relating to a comparatively minimal cost on the courts, we conclude that procedure to modify custody). Such is the case here. the same is necessary to guarantee a meaningful opportunity to be heard. In this case, the parents had a custody order prior to Mother's incarceration. Her incarceration caused a de facto We recognize that our decision may involve practical and modification of her physical custody. She seeks to modify logistical concerns. For example, a prisoner's appearance may the prior custody order so as to align it with the reality that be delayed or cut short due to the availability of prison staff she is now incarcerated. In this respect, Mother's petition is or equipment—though we note that our courts are already no different than a typical modification petition. A parent making *1165 these accommodations for prisoners in often petitions for modification only to formalize in a court criminal and juvenile proceedings. Whatever inconvenience order the reality of the current custody arrangement. The this decision may cause, it is negligible compared to the petitioning parent argues that the operating custody order no logistical burdens the trial courts faced in the time of longer reflects the status quo and seeks to protect that status quo with all the benefits that come with a court order. Mother, Sullivan.

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 9 S.T. v. R.W., 192 A.3d 1155 (2018) 2018 PA Super 192 seeking contact with her daughter, similarly seeks to have a as best protects the fundamental right to parent one's child. new custody order meet the realities of the parties' current Mother's request is no different. living situation. The difference between Mother and a typical parent seeking modification is the availability of remedies. Section 5328(a) provides: “In ordering any form of custody, the court shall determine the best interest of the Second, we conclude that the type of custody Mother seeks child by considering all relevant factors, giving weighted in this case fits the definition set forth in the Custody Law consideration to those factors which affect the safety of for “supervised physical custody.” 23 Pa.C.S.A. § 5322 the child, including [Factors (1)–(15) ] 9 and (16) Any (b). This term is statutorily defined as: “Custodial time during which an agency or an adult designated by the court or agreed other relevant factor.” 23 Pa.C.S.A. § 5328(a) (emphasis upon by the parties monitors the interaction between the child added). In its wisdom, our legislature *1167 left room for and the individual with those rights.” Id. (Emphasis added). “any other relevant factor,” recognizing that certain situations Thus, incarcerated parents who seek some form of contact would require consideration of additional information unique with their children—whether it be a request that the children to the parties. Recently, we noted several relevant factors that visit them or otherwise—are seeking an award of “supervised courts employ in cases with an incarcerated parent. 8 physical custody” as defined under § 5323. In this case, In M.G. v. L.D., 155 A.3d 1083, 1093 (Pa. Super. 2017), we *1166 Mother seeks written correspondence and telephone found the trial court should have considered factors unique to communication. She wants to interact with her daughter. Indeed, the trial court's custody order even authorized Father prison cases which were previously delineated in Etter v. to screen Mother's letters to their daughter. Rose, 454 Pa.Super. 138, 684 A.2d 1092, 1093 (1996).”

We observe that our legislature surely anticipated custody [I]n Etter v. Rose, the Superior Court recognized some petitions of incarcerated parents when it included § 5329(b) of the factors to be considered in deciding [custody cases] in the current Custody Law. This provision provides: “No where the parent is incarcerated: court shall award custody, partial custody or supervised (1) age of the child; physical custody to a parent who has been convicted of murder under 18 Pa.C.S. § 2502(a) of the other parent of (2) distance and hardship to the child in traveling to the the child who is subject of the order unless the child is visitation site; of suitable age and consents to the order.” 23 Pa.C.S.A. (3) the type of supervision at the visit; § 5329(b) (emphasis added). This provision must apply in both situations where the parent is presently incarcerated, as (4) identification of the person(s) transporting the child and well as those extraordinarily rare situations where a parent, by what means; convicted of murdering the other parent, is released during the child's minority. Naturally, the provision is silent to whether (5) the effect on the child both physically and emotionally; the convicted parent can obtain visitation of the child, because visitation is no longer an available remedy anywhere in our (6) whether the parent has and does exhibit a genuine custody law. interest in the child; and

(7) whether reasonable contacts were maintained in the Having established that incarcerated parents seeking contact past. with their children are seeking “a form of custody,” i.e., supervised physical custody via either an original complaint M.G. v. L.D., 155 A.3d at 1094 (quoting D.R.C. v. J.A.Z., or a modification petition, the custody court must consider 612 Pa. 519, 31 A.3d 677, 687 (2011) ). 10 We also noted that the custody factors under § 5328(a) when deciding these our Supreme Court included another relevant consideration, prison cases. namely:

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

factors when determining whether an incarcerated parent should be able to speak to her daughter. But, of course (8) the nature of the criminal this factor might be relevant if extended family can provide conduct that culminated in the parent's transportation or financial resources to allow telephone or incarceration, regardless of whether virtual visitation. that incarceration is the result of a crime enumerated in [ section Some factors overlap. Compare: § 5328(a)(11)(“The 5329(b) ]. proximity of the residences of the parties”) with Etter Factor 2 (“The distance and hardship to the child in traveling to the visitation site.”) Most of the Etter factors have a M.G. v. L.D., 155 A.3d at 1094 (numeration original). similar § 5328(a) counterpart. Although Etter was decided prior to the amendments to our current Custody Law, in M.G. we determined they still [18] In the case at hand, the trial court first applied the former played a role in deciding prison cases. law and then misapplied the current law. We observe the trial court relied upon, at least in part, the former custody M.G. involved an incarcerated Mother's request to see, or 12 to at least have telephone contact with her 12–year–old statute, which was repealed in 2011. See T.C.O., at 2–3. Moreover, to the extent that the trial court conducted a proper daughter. 11 Specifically, the trial court did not consider the emotional effect the contact would have on the child, nor the § 5328(a) analysis, it failed to contemplate the relevant travel logistics and supervision during the visit. Id. Likewise, Etter factors. the trial court did not determine whether the mother's interest in expanding contact with her daughter was genuine. The court also failed to consider the nature of the mother's criminal The court did apply § 5328(a)(11)(relating to the proximity conduct and its effect upon her daughter. Id., at 1094–1095. of the parties' residences) almost as if it was the second Etter factor (the distance to the prison). The court found: Without specifically stating so, in M.G. we acknowledged “It is approximately 85 miles from Father's residence to SCI– the Etter factors are now assimilated into § 5328(a) Muncy which is a driving time of 1 ½ hours each way.” Where we believe the trial court erred, however, was in failing to analysis under § 5328(a)(16). See P.J.P. v. M.M., 2018 PA 13 Super 100, 185 A.3d 413, 2018 WL 1979832 (2018) (holding consider the other Etter factors. For example, the court did not consider the emotional or physical effect the requested that the shared custody factors set forth in Wiseman v. telephone contact would have on the child. The court did not Wall, 718 A.2d 844 (Pa. Super. 1998), which predated the consider whether Mother has exhibited a genuine interest in 2011 amendments to the Custody Law, assimilated into the the child. The trial court did not consider whether reasonable custody factors set forth in 23 Pa.C.S.A. § 5328(a) ). contacts were maintained in the past.

We acknowledge that not every § 5328(a) factor will [19] Etter aside, the trial court erred by not interviewing necessarily apply. *1168 “[W]here, as here, one parent is the child to consider her preference, per § 5328(a)(7). incarcerated and will remain imprisoned for an extended Although the discretion remains exclusively with the trial period, the applicability of several of the enumerated [ § court, a child's well-reasoned preference, based on her age and 5328(a) ] statutory factors is questionable.” M.G., 155 A.3d judgment, could carry more weight in an incarceration case at 1093. than it might otherwise would have.

Some § 5328(a) factors are largely inapplicable to Although we find that the Etter factors have assimilated into our current Custody Law, the presumption set forth these cases. For example, perhaps § 5328(a)(5) (“The availability of extended family”) has less value than other in Etter did not survive the amendments to the

We fail to see why the children of incarcerated parents should custody statutes. Father cites Etter for his argument that be treated differently depending on whether they are the incarceration alone “is a basis for creation of a presumption, subject of dependency proceedings or custody proceedings. to be rebutted by the prisoner parent, that such visitation is Both the Juvenile Act and the Custody Law serve the “best not in the best interest of the child.” See Father's Brief, at 11; interests” of children. see also Etter v. Rose, 454 Pa.Super. 138, 684 A.2d 1092, 1093 (1996). Because the trial court failed to consider the relevant Etter The legislature, in amending our Custody Law, provided considerations unique to prison cases under § 5328(a)(16), no such presumption in *1169 incarceration cases. 14 Our the trial court erroneously determined the extent of Mother's legislature contemplated when a presumption would arise, as “supervised physical custody” without proper consideration well as how to treat parents' criminal histories; it provided of “all relevant factors.” no such presumption against incarcerated parents. Indeed, not only is this presumption absent from our statutes, but any such presumption would run afoul of the advances our courts IV. have made in proceedings conducted under the Juvenile Act, 42 Pa.C.S.A. § 6301, et seq. Our Judicial Dependency Court Finally we must address Mother's claim that the trial court Benchbook references the Pennsylvania State Roundtable process constituted a “loss of her parental rights.” Here, when Dependent Children of Incarcerated Parents 2013 Workgroup Mother filed for modification of supervised physical custody, Report. The report states: the trial court awarded Father sole legal custody. The trial court's legal custody decision similarly consists of procedural and substantive faults. [I]n most cases, children benefit from visitation and contact with a parent [20] [21] If a party requests modification of any form who is incarcerated. Children feel of custody, the decision of whether to modify either legal enormous grief and loss when they custody or physical custody should be made on a case by are unable to maintain contact with a case basis under the § 5328(a) factors discussed above. We parent. It is almost the same when a cannot determine from the ex parte hearing whether Mother parent has died. Children also worry should retain her shared legal custody, but we acknowledge about a parent that they cannot see or that legal custody rights of incarcerated parents do not vanish talk to on a regular basis. [...] Visitation upon their incarceration. Indeed, the trial court acknowledged and contact can reduce some of their Mother retained shared legal custody when scheduling the worries and sad feelings. custody hearing, but then the court deprived her of those rights in its final order.

Id. The Benchbook outlines the following best practices in In doing so, we note that the trial court again applied the dependency court: repealed custody statute. See T.C.O., at 2–3. Similar to the analysis above, “legal custody” is a “form of custody.” Best Practice—Visits in Local Jails and Prisons *1170 See 23 Pa.C.S.A. § 5322. As such, an award or [...] Indeed, many counties have worked with their modification of legal custody necessarily requires analysis of local jails and created innovative practices, including the § 5328(a) custody factors. The trial court relied on legal child-friendly visitation space, that support meaningful custody considerations set forth in earlier case law that have parent/child visitation. Some examples include Adams, Allegheny, Blair, Crawford and Westmoreland counties. been assimilated under § 5328(a). [...] Before the revisions to the Custody Law, we held that when Id., at § 8.4. determining whether to award shared legal custody, the trial court must consider the following legal custody factors:

(relating to parental duties); (a)(9)(relating to providing a loving relationship); (a)(10)(relating to the willing to attend to (1) whether both parents are fit, the child); (a)(12)(relating to the ability to make appropriate capable of making reasonable child child care arrangements); (a)(14)(relating to the history of rearing decisions, and willing and household drug abuse); and (a)(15)(relating to the mental and be able to provide love and care physical condition of the household). for their children; (2) whether both parents evidence a continuing desire [22] Returning now to the instant case, the trial court ruled for active involvement in the child's that Mother could not share legal custody because she was life; (3) whether the child recognizes “not able to participate effectively in parenting decisions.” both parents as a source of security See T.C.O., at 3. This conclusion is seemingly the product of and love; (4) whether a minimal degree no analysis, old or new. The trial court clearly thought it was of cooperation between the parents is bound to the prior legal custody factors. But to the extent the possible. trial court's § 5328(a) findings could be transplanted in a proper legal custody analysis, we reiterate that Mother did not have notice, nor an opportunity to be heard on this issue either. See, e.g., Yates v. Yates, 963 A.2d 535 (Pa. Super. 2008); see also Bernard v. Green, 412 Pa.Super. 201, 602 A.2d 1380, Because the court similarly deprived Mother the opportunity 1381 (1990) (quoting In re Wesley J.K., 299 Pa.Super. to be heard on legal custody, we must conclude that the court 504, 445 A.2d 1243, 1249 (1982). We hold that these legal erred. On remand, we direct the trial *1171 court to apply custody factors have similarly been assimilated into the the proper statute in determining whether Father should have sole legal custody of the parties' daughter. custody factors set forth in 23 Pa.C.S.A. § 5328(a). See P.J.P. v. M.M., supra, 2018 PA Super 100, 185 A.3d 413, 15 Although, at first glance, it might appear that the trial court 2018 WL 1979832 (2018). complied with our current custody laws by listing the 16 factors in its opinion, we must reverse the trial court's order, Unlike the Etter factors, where several unique in this prison custody case, for several reasons. First, because considerations—specific to prison incarceration cases—are Mother was not notified of her right to request to be present, Mother's was deprived her right to due process. Additionally, now considered under § 5328(a)(16)'s catchall provision, Mother was deprived her right to have her modification here, these four “legal custody factors” from our case law petition adjudicated under the current Custody Law's analyses have been entirely consumed by § 5328(a). For instance, for physical and legal custody. Therefore, we vacate the trial the legislature expertly and purposely instructed trial courts court's order in this matter and remand for a new hearing. to consider many more specifics than just “fitness” generally. Regarding the former “Legal Factor 1” (whether the parents Order vacated. Case remanded for proceedings consistent are fit and willing to provide love and care), the current with this opinion. Jurisdiction relinquished. analysis under § 5328(a) encompasses the question of “fitness” in the following provisions: § 5328(a)(2)(relating All Citations to past abuse); (a)(2.1) (relating to past crimes); (a)(3) 192 A.3d 1155, 2018 PA Super 192

Footnotes 1 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 in Crawford 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 not rendered; Perjury (relating to testimony given in family court matters); Endangering the welfare of children (relating to

providing a non-subject seventeen-year-old daughter with Xanax); Drug delivery resulting in death (relating to providing a 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 when she 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 process served on an incarcerated person in a domestic relations action must also include notice of any hearing in such action and 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 to orphans' court rules) requires the presence of an incarcerated parent at a court proceeding involving the termination of their parental rights. This rule provides: Where the natural parent is incarcerated, a petition for involuntary termination of that parent's parental rights must include a statement in the proposed Preliminary Order, submitted with the petition setting the hearing date, that if the natural parent desires to contest the petition, the parent may do so by requesting the issuance of a writ of habeas corpus ad testificandum. [...] Schuylkill County Local Rule 15.4C (emphasis added). Notably, this procedure mirrors the service procedure provided Pa.R.C.P. 1930.4(a). Although this local rule applies specifically to termination of parental rights cases, we see no reason to 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 another party. (2) The present and past abuse committed by a party or member of the party's household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child. (2.1) The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement with protective 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 where reasonable 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 adequate for the child's emotional needs. (10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of 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 cooperate with 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).

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-release cases, 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 full custody 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, 600 A.2d 218 (1991), wherein we held: “In custody disputes, the controlling question and paramount concern of the Court is the 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 failed to 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., In re Wesley J.K., 445 A.2d at 1249. Nothing we have said today detracts from this holding, as the holding speaks to the weight of the factors. We only clarify the factors themselves. Thus, it could be very reasonable for a trial court—finding no 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 weight when awarding first physical custody, then legal custody.

2 Cases that cite this headnote 164 A.3d 1260 Superior Court of Pennsylvania. [2] Child Custody J.M., Appellee Decisions reviewable v. While an order granting temporary or interim K.W., Appellant custody is interlocutory, a finding of contempt is final and appealable when a sanction is imposed. No. 76 MDA 2016 | 1 Cases that cite this headnote Argued March 21, 2017 | [3] Child Custody Filed May 31, 2017 Contempt Synopsis Mother was in contempt for violating trial court's Background: Father filed child custody complaint, and scheduling order, which specifically prohibited mother filed counterclaim and issued notice of proposed relocation without prior court approval, in child relocation with children. The Court of Common Pleas, custody proceedings, although mother issued Schuylkill County, Civil Division, No. S–523–2014, John E. notice to father of her intention to relocate; after Domalakes, J., held mother in contempt and stripped her of father filed notice of objection, mother relocated primary physical custody. Mother appealed. without permission from court. 23 Pa. Cons. Stat. Ann. § 5337.

Holdings: The Superior Court, Bowes, J., held that: [4] Contempt [1] mother was in contempt for relocating without permission; Disobedience to Mandate, Order, or Judgment [2] mother was not in contempt for enrolling child in Contempt preschool without father's knowledge or permission; and Weight and sufficiency To be in contempt, a party must have violated [3] modification of child custody was impermissible sanction a court order, and the complaining party must for mother's contempt. satisfy that burden by a preponderance of the evidence.

Affirmed in part, reversed in part, and remanded. 1 Cases that cite this headnote

[5] Contempt West Headnotes (11) Disobedience to Mandate, Order, or Judgment

[1] Child Custody Contempt Decisions reviewable Service on or knowledge of party or other person Interim custody order is not appealable; the rationale behind this precept is that, until the trial For purposes of contempt, the complainant must court has rendered its best-interest determination prove certain distinct elements: (1) that the on the merits, an interim custody order is contemnor had notice of the specific order or ephemeral and subject to further modification decree which he is alleged to have disobeyed, (2) upon petition. that the act constituting the contemnor's violation

was volitional, and (3) that the contemnor acted appear, and scheduling orders that court issued with wrongful intent. did not disclose that trial court would address matter of physical custody during contempt 2 Cases that cite this headnote proceeding. Pa. R. Civ. P. 1915.12.

1 Cases that cite this headnote [6] Child Custody Excuses and defenses Mother was not in contempt for violating court [10] Constitutional Law order in child custody proceedings by enrolling Notice and Hearing child in preschool without father's knowledge Constitutional Law or permission; none of the then-existing orders Impartiality specifically addressed who would exercise legal Procedural due process requires, at its core, custody, and mother did not contravene an adequate notice, opportunity to be heard, and existing court order. 23 Pa. Cons. Stat. Ann. the chance to defend oneself before a fair and § 5322. impartial tribunal having jurisdiction over the case. U.S. Const. Amend. 14.

2 Cases that cite this headnote [7] Child Custody Interference with custody rights [11] Child Custody An adjudication of contempt is not a proper Modification basis to modify an existing custody arrangement. Under appropriate circumstances, a trial court 23 Pa. Cons. Stat. Ann. § 5323(g). may modify a custody order temporarily pursuant to statute governing special relief. Pa. R. Civ. P. 1915.13. [8] Child Custody Relief granted 1 Cases that cite this headnote A trial court's ability to alter custody as a contempt sanction is restricted to circumstances where the responding party is given express notice that custody will be at issue during the *1262 Appeal from the Order Entered December 24, 2015, contempt proceeding and the modification is In the Court of Common Pleas of Schuylkill County, Civil based upon the determination of the child's best Division at No(s): S–523–2014, John E. Domalakes, J. interest. Attorneys and Law Firms

Jeffrey P. Paul, Lancaster, for appellant. [9] Child Custody Relief granted Richard A. Raiders, Robesonia, for appellee. Modification of child custody awarding father BEFORE: BENDER, P.J.E., BOWES, PANELLA , shared physical custody was impermissible SHOGAN, LAZARUS , OLSON , DUBOW , MOULTON sanction for mother's contempt of order AND SOLANO, JJ. prohibiting relocation without approval; mother was not provided requisite specific notice in Opinion contempt petition and attendant orders directing her to appear that her custody rights would be OPINION BY BOWES, J.: at stake, there was no petition to modify custody K.W. (“Mother”) appeals the December 24, 2015 order before trial court during contempt proceedings, wherein the trial court held her in contempt and stripped father neglected to provide notice and order to

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 J.M. v. K.W., 164 A.3d 1260 (2017) 2017 PA Super 167 her of primary physical custody of the parties' then-four- to appear, as mandated by [Pa.R.C.P. 1915.12] and no year-old-son, B.M., and three-year-old daughter, V.M. As order which was allegedly violated was either referenced the modification of physical custody is an improper sanction in the petition or attached to the petition, as mandated by for contempt, we vacate the order and remand for further Pa.R.C.P. 1915.12(b) and (c)? proceedings. II. Did the [trial] court err and abuse its discretion by B.M. and V.M. were born of the marriage between Mother finding [Mother] in contempt of court as a result of her and J.M. (“Father”). After the parties separated, Father filed move from Pottsville, Schuylkill County, Pennsylvania a child custody complaint on March 20, 2014. The following to Lancaster, Lancaster County, Pennsylvania, without day, the parties entered a stipulated custody agreement that leave of court, where none of the existing custody orders accorded Mother primary physical custody of the children contained the required “relocation” language, as mandated pending the custody trial. As it relates to the present appeal, under the Pennsylvania Rules of Civil Procedure and the the trial court entered several orders, including a March laws of the Commonwealth of Pennsylvania, and where 25, 2014 order scheduling the custody conference, which [Mother's] move was not a relocation, which is defined specifically prohibited relocation without prior court approval as: “a change in a residence of a child which significantly pursuant to 23 Pa.C.S. § 5337. impairs the ability of a non-relocating party to exercise custodial rights[,”] since [Mother's] move to Lancaster On April 25, 2014, Mother filed a counterclaim to the custody County did not significantly impair [Father's] ability to complaint and issued notice of her proposed relocation with exercise his custodial rights, and he in fact was receiving B.M. and V.M. from her residence in Pottsville, Schuylkill more time with his Children than the original custody County, to Lancaster, Lancaster County, approximately one- order provided, and [Mother] and [Father] always chose and-one-half hours away. Father filed a counter-affidavit the pick[-]up and drop[-]off location, and [Father] never objecting to Mother's proposed relocation. However, prior to missed any of his custodial time following [Mother's] move obtaining the trial court's authorization under § 5337, Mother to Lancaster County, Pennsylvania? relocated with the children to Lancaster during May 2015, and III. Did the [trial] court err and abuse its discretion by she purchased property in that county two months later. finding that [Mother] was in contempt as a result of her enrolling the parties' son ... in preschool, allegedly without Father responded to the move by filing a petition for special [Father's] knowledge, permission or consent, where none relief and contempt. During the contempt hearing, Father of the custody orders which were then in place contained established that Mother had relocated to Lancaster without “legal custody” provisions, and [the child] was attending prior court approval and enrolled B.M. in a Lancaster- preschool only during the time when it was [Mother's] area preschool without Father's knowledge or consent. On custodial period? December 24, 2015, the trial court entered the above- referenced order that found Mother in contempt, and, as a IV. Did the [trial] court err and abuse its discretion by sanction, reduced her custodial rights from primary physical specifically finding that “an appropriate sanction (for custody of B.M. and V.M. to shared custody. The order was contempt) is to award shared custody until the parties to remain in effect until the underlying custody dispute was undergo trial[,”] and did the [trial] court err and abuse resolved. The trial court also awarded Father $2,214.00 in its discretion by imposing as a sanction for contempt a attorney fees. significant modification of the existing custody order, from a primary physical custody order to a shared custody order? On January 12, 2016, Mother filed a timely notice of appeal and statement of *1263 errors complained of on appeal Mother's brief, at 4–5. pursuant to Pa.R.A.P. 1925(a)(2)(i). The trial court issued its Rule 1925(a) opinion on January 26, 2016. [1] At the outset, we must determine whether the appeal is properly before us. We observe that the trial court's Mother presents the following questions for our review: modification of physical custody “until such time as the [matter proceeds to a] pending custody trial” is temporary I. Did the [trial] court err and abuse its discretion by with respect to the custody determination. Trial Court adjudicating [Mother] in contempt of court, where the Order, 12/24/15, at unnumbered 8. It is well-ensconced in petition for contempt did not contain the notice and order

Pennsylvania that an interim custody order is not appealable. violation was volitional; and (3) that the contemnor acted with G.B. v. M.M.B., 448 Pa.Super. 133, 670 A.2d 714, 720 wrongful intent.” P.H.D. v. R.R.D., 56 A.3d 702, 706 n.7 (1996). The rationale behind this precept is that, until the (Pa.Super. 2012). trial court has rendered its best-interest determination on the merits, an interim custody order is ephemeral and subject Instantly, as Mother acknowledges, the trial court's March 25, to further modification upon petition. Thus, at first blush, it 2014 scheduling order expressly highlighted in bold type, “No appears that this portion of the appeal is interlocutory. party may make a change in the residence of any child which significantly impairs the ability of the other party to exercise [2] However, upon closer examination of the pertinent custodial rights without first complying with all of the issue, it is obvious that the instant order is not an interim applicable provisions of 23 Pa.C.S. § 5337 and Pa.R.C.P. No. determination of the children's best interest, and Mother does 1915.17 regarding relocation.” Trial Court Order, 3/25/14. not challenge the trial court's determination of custody per se. Section 5337 of the Child Custody Law instructs that a party In reality, the order in the case at bar is a finding of contempt wishing to relocate must provide notice of such intent prior to and a concomitant *1264 sanction, which as we discuss moving, to which any party entitled to receive notice may file infra, was entered in contravention of our jurisprudence objections. The statute continues, “No relocation shall occur regarding the modification of custody as a consequence of unless: (1) [the parties consent]; or (2) the court approves the contempt. While an order granting temporary or interim proposed relocation.” 23 Pa.C.S. § 5337(b). However, before custody is interlocutory, it is beyond cavil that a finding of a court may approve a proposed relocation several things must contempt is final and appealable when a sanction is imposed. occur. First, “[t]he party proposing relocation shall notify Stahl v. Redcay, 897 A.2d 478 (Pa.Super. 2006). Thus, the every other individual who has custody of the child [,]” and order is appealable. inform them of the particulars of the proposed move. 23 Pa.C.S. § 5337(c) (1)-(4). Next, if a non-relocating party We first review the propriety of the contempt order, and files an objection to the proposed relocation, the trial court since we sustain the trial court's finding that Mother was in is required to hold a hearing in which the party proposing contempt for relocating with the children without permission relocation has the burden of proving that the move would and/or enrolling their son in preschool without consulting serve the child's best interest in light of the factors set forth Father, we will then determine whether the trial court imposed in § 5337(h) (1)-(10). 23 Pa.C.S. § 5337(d), (g), (h) and (i). an appropriate sanction. Absent exigent circumstances that warrant relocation prior to the evidentiary hearing, the trial court will not approve the [3] Preliminarily, we review the merits of the substantive move until a full consideration of all the relevant statutory challenges that Mother raises in issues two and three. In issue factors addressed during the hearing. 23 Pa.C.S. § 5337(g). two, Mother asserts that the trial court erred in finding her in contempt for relocating the children from Schuylkill County All of the required steps did not occur herein. One month after to Lancaster County. The crux of Mother's argument is that the entry of the March 25, 2014 order, Mother issued notice the custody order that was in effect did not preclude her from to Father of her intention to relocate *1265 to Lancaster relocation. She continues that, although the relevant language County with the children. However, after Father filed notice was included in at least one of the trial court's scheduling of his objection, Mother relocated without permission in orders, Father failed to attach that order to his contempt contravention of the March 25, 2014 order directing her petition or demonstrate that she was aware that the order to comply with the relocation provision of § 5337. As existed. These arguments fail. Mother ignored Father's objection to her proposed relocation and acted unilaterally in moving with the children before [4] [5] It is established: “To be in contempt, a party obtaining the trial court's approval, the certified record must have violated a court [o]rder, and the complaining sustains the trial court's finding that Mother was in contempt. party must satisfy that burden by a preponderance of the evidence.” Hopkins v. Byes, 954 A.2d 654, 655 (Pa. Super. Furthermore, we reject Mother's insinuation that she did 2008) (citation omitted). Specifically, “the complainant must not receive notice of the March 25, 2014 scheduling order prove certain distinct elements[:] (1) that the contemnor had informing her of the proscription against relocation without notice of the specific order or decree which he is alleged to prior court approval in compliance with § 5337. The very fact have disobeyed; (2) that the act constituting the contemnor's that Mother issued notice of her proposed relocation within

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 J.M. v. K.W., 164 A.3d 1260 (2017) 2017 PA Super 167 one month of the trial court's directive is compelling evidence proposed move was, in fact, a relocation. To the contrary, we that she knew of the order and sought to comply, at least find that, having initiated the relocation procedure pursuant initially, with it. to § 5337, Mother violated the terms of the March 25, 2014 order by ignoring the steps required by the statute. 2 Similarly unavailing is Mother's assertion that her surreptitious move with the parties' children from Schuylkill *1266 Moreover, although Mother was willing to County to Lancaster County was not a “relocation.” Noting supplement Father's custodial periods in order to mitigate that a proposed move's effect on the non-relocating party's the harm caused by the move, that fact was but one of ten custodial rights is a fundamental component of the statutory relocation factors that the trial court would have considered definition of relocation, Mother asserts that, since she during the full hearing to determine the children's best interest permitted Father greater access to the children after the move under § 5337(h)(1)-(10), had Mother not usurped § 5337 and to Lancaster than was required by the custody order, it did relocated to Lancaster County prematurely. Thus, Mother's not fall within the definition of relocation. 1 Mother cites post hoc generosity in seeking to lessen the damage to Father's rights did not negate the fact that, by relocating without our holding in C.M.K. v. K.E.M., 45 A.3d 417, 425– permission, she violated the scheduling order directing her to 426 (Pa.Super. 2012) in support of her position that the comply with § 5337. No relief is due. move was not a “relocation.” The C.M.K. Court found that a trial court erred in concluding that the mere fact that [6] In her third issue, Mother contends that the trial court a custodial parent issued notice of a proposed relocation abused its discretion by finding her in contempt for enrolling was determinative of whether the move would have met the B.M. in preschool without Father's knowledge or permission. statutory definition of a relocation. We reasoned that whether Essentially, this question relates to whether Mother impinged a custodial parent's decision to move the children to another upon an order regarding legal custody, i.e., “The right to location was tantamount to a relocation under the Child make major decisions on behalf of the child, including, but Custody Law depended upon whether the move significantly not limited to, medical, religious and educational decisions.” impaired the non-relocating party's ability to exercise custody. 23 Pa.C.S. § 5322. Mother highlights that none of the then- Nevertheless, we found that the evidence adduced during existing orders specifically addressed who would exercise the relocation hearing established that the proposed move legal custody. As the record sustains Mother's observation that constituted a relocation. a relevant determination of legal custody did not exist, we agree with her position that the trial court erred in finding The crux of Mother's position is that, since she increased her in contempt in this respect. Stated plainly, while Mother Father's custodial rights after she moved the children to demonstrated a remarkable lack of cooperation by acting Lancaster without permission, the change did not fall within unilaterally to place B.M. in the daycare of her choice, the statutory definition of “relocation,” and therefore she she did not contravene an existing court order. Thus, the was not bound by the procedures outlined in § 5337. This fundamental element of civil contempt is missing in this case. argument, which is premised on strained interpretations See Hopkins, supra; P.H.D., supra . In light of our of both our holding in C.M.K. and the statutory decision to reverse this aspect of the contempt order, we definition of “relocation,” demonstrates Mother's general remand the matter for the trial court to re-evaluate the award misunderstanding of § 5337. of counsel fees. By definition, a relocation impacts the non-relocating party's Next, having sustained the trial court's finding of contempt as ability to exercise custody. However, unlike the issue in it relates to Mother's unauthorized relocation to Lancaster, we C.M.K., supra, we need not determine whether the move review the propriety of the court's decision to alter physical to Lancaster fell within the statutory definition of “relocation” custody as a contempt sanction. This issue subsumes the in this case because Mother clearly believed that it might first and fourth issues that Mother lists in her statement of when she issued notice of the proposed relocation pursuant questions presented on appeal. Mother contends that the trial to § 5337. That decision belies her current assertion that § court violated her due process rights by modifying the custody 5337 was inapplicable. Unlike, the trial court in C.M.K., arrangement concomitant with the contempt adjudication. we are not concluding that Mother tacitly conceded that the The crux of Mother's argument is that Father's contempt

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 J.M. v. K.W., 164 A.3d 1260 (2017) 2017 PA Super 167 petition provided insufficient notice that custody would be at hearing did not notify either party that custody would be an issue during the contempt proceedings. She continues that, issue during the contempt proceedings. Moreover, there was by awarding custody to Father without affording notice that no indication in the record that the trial court consolidated the the existing custody order could be modified, the trial court mother's contempt petition with the father's previously filed denied her the opportunity to defend against modification. motion to temporarily adjust the custody schedule. Following the contempt hearing, the trial court awarded the mother sole Father counters that Mother had notice that he sought custody legal and physical custody of the child. However, relying as a result of her alleged contempt. He points out that upon the precept discussed in Choplosky v. Choplosky, his petition entreated the court to grant him custody of 400 Pa.Super. 590, 584 A.2d 340, 342 (1990), “without a their children and the proposed order that he attached to motion to modify visitation rights before it, a trial court may his petition provided, “Plaintiff is granted primary custody not permanently alter the visitation rights of [the] parties,” until further order of court.” Petition for Special Relief and this Court vacated the custody order on appeal as violating the Contempt, 9/23/15, at unnumbered page 2, and attached father's right to due process. proposed order. Thus, Father contends that *1267 Mother had the opportunity to prepare for the contempt proceedings and to advocate her position vis-à -vis the custody request. We reiterated the Langendorfer Court's rationale in For the reasons that follow, we disagree. P.H.D. v. R.R.D., 56 A.3d 702, 707–708 (Pa.Super. 2012),

[7] [8] It is settled that an adjudication of contempt is not and concluded, “As in Langendorfer, Father here had no notice that custody was at issue. Neither the contempt petition a proper basis to modify an existing custody arrangement. 3 nor the notice and order to appear held out the prospect See Clapper v. Harvey, 716 A.2d 1271, 1275 (Pa.Super. 1998) (“a mother's violation of a custody order may be an of custody modification.” Similarly, in Everett, supra at appropriate foundation for a finding of contempt, but it cannot 581, this Court explained, “When modification of custody is sought by a custody contempt petitioner, the respondent must be the basis for an award of custody”); Rosenberg v. be given particular notice of that objective.” In reaching that Rosenberg, 350 Pa.Super. 268, 504 A.2d 350, 353 (1986) determination, we reasoned that the requisite *1268 notice (“A custody award should not be used to reward or punish a must appear both in the body of the contempt petition and in parent for good or bad behavior”). This Court has confronted several cases where the trial court awarded one party custody the order to appear. Everett, supra at 581. as a sanction for the other party's contumacious conduct. See e.g. Langendorfer v. Spearman, 797 A.2d 303 In Everett, a father filed a pro se contempt petition against the mother who maintained primary custody of his child. (Pa.Super. 2002); and Everett v. Parker, 889 A.2d 578, While the third page of the contempt petition requested 581 (Pa.Super. 2005); cf. Steele v. Steele, 376 Pa.Super. a change in the custody arrangement, the father failed to 174, 545 A.2d 376 (1988) (noting that it is generally serve the petition on Mother properly. Instead, he mailed a improper for trial court to modify custody arrangements copy of the petition to an attorney who represented mother without petition for modification before it). The effect of this during prior dependency proceedings and to the family's jurisprudence is that a trial court's ability to alter custody as CYS caseworker. Neither the mother nor her former attorney, a contempt sanction is restricted to circumstances where the who never entered an appearance in the custody dispute, responding party is given express notice that custody will be appeared at the contempt hearing. Nevertheless, based upon at issue during the contempt proceeding and the modification the caseworker's statement that she had provided the mother is based upon the determination of the child's best interest. with actual notice of the date and time of the hearing, the trial court determined that the mother received sufficient notice of the father's petition. Accordingly, it held the contempt hearing In Langendorfer, supra , the mother, who maintained ex parte, found the mother in contempt, and modified the partial physical custody of her son during the summer, existing custody order by awarding the father primary custody filed a contempt petition against the father asserting that of his son. On appeal, we vacated the contempt order. he had violated the existing custody arrangement. Notably, the Mother's contempt petition failed to include any request to transfer custody and the order scheduling the contempt

yet the custody trial was not scheduled until approximately As it relates to the issue in the case at bar, the Everett two years later, and *1269 then that proceeding was Court concluded that the trial court violated the mother's right stayed indefinitely because the custody evaluation that was to due process by modifying the custody order as part of performed during Spring 2014 had grown stale. Indeed, as the contempt proceedings because the mother was denied of the date of this writing, the theoretically “temporary” specific notice that custody would be at stake in the contempt order that Mother challenges herein has governed the parties' proceedings. Noting that the mother was not properly served custody arrangement for approximately sixteen months since with the contempt petition that implicated the custody its inception on December 24, 2015. There still has not been arrangement or with the notice of the scheduled contempt a formal determination of the children's best interest that hearing, we determined that the caseworker's notification to 4 the mother concerning the time and date of the proceedings would qualify as a “final” order. Hence, the interim order was insufficient. Specifically we reasoned, “Formal notice was temporary in name only. It carried the same force as a and an opportunity to be heard are fundamental components final custody order for approximately one and one-half years. of due process when a person may be deprived in a legal Accordingly, we find that even an ostensibly temporary order proceeding of a liberty interest, such as physical freedom, or granting the modification of physical custody implicates a parent's custody of her child.” Everett, supra at 580. the Langendorfer Court's concerns about the evidentiary deficit where the respondent did not receive particularized Thus, as the foregoing discussion of relevant binding notice that custody would be at issue in a contempt authority highlights, a trial court may transfer physical proceeding. custody at the conclusion of a contempt hearing only when the modification suits the child's best interest in light of the Thus, for all of the foregoing reasons, we hold that absent an statutory factors and the respondent has been given particular award of special relief under Rule 1915.13, which we discuss notice of that objective. In reaching our decision, we stress infra, it is an abuse of discretion for the trial court to transfer that the reason for the notice requirements is more than a custody from one party to the other as a contempt sanction and procedural formality. Indeed, without particularized notice that custody can be modified only where the parties receive that custody would also be at issue at the contempt hearing, advance notice that custody is to be an issue at the contempt a respondent would not be prepared to litigate the custody hearing and modification is based upon the determination of dispute during the contempt proceedings and the trial court the child's best interest. would be denied the benefit of both parties' relevant evidence concerning the children's well-being. Consequently, as this [9] [10] Having established the appropriate legal framework, we next address Mother's and Father's Court previously explained in Langendorfer, supra at countervailing arguments regarding whether Father satisfied 309, the trial court would lack the required information the particularized notice requirements we outlined in to make the “quintessentially crucial judgment” as to the children's best interests. Langendorfer, supra and its progeny. Pursuant to Pa.R.C.P. 1915.12(a), a contempt petition must include a It is of no moment that the trial court's modification section entitled “Notice and Order to Appear.” The rule was ostensibly temporary because the foregoing principles prescribes the form and content of the notice and order to apply with equal effect to provisional orders. First, all appear. Herein, Father's petition for contempt and special custody awards are temporary insofar as they are subject relief requested a modification of custody, but it lacked the to modification by an ensuing court order any time that required notice and order to appear as outlined by Rule it promotes the child's best interest. Thus, by force of 1915.12. A petition for special relief is not analogous to circumstances, no award of child custody is permanent a motion for modification, which not only implicates a regardless of whether the order is styled as interim or final. thorough analysis of the children's best interest under § 5328(a), but also necessarily provides express notice that Second, as the prolonged history of this case demonstrates, custody would be at issue. As Father neglected to issue the the judicial machinery may stall or become so congested required notice and order to appear, he did not provide Mother that a temporary order forms the de facto status quo notice that the existing custody order could be modified as a regardless of its purported impermanence. Instantly, Father consequence of the contempt proceedings. 5 Moreover, both filed the underlying custody complaint on March 21, 2014,

being of the children involved while the parties prepare to the original *1270 scheduling order that the trial court issued and its revised order failed to mention custody at all. resolve more permanently the question of where and/or with whom the children should remain.”); 23 Pa.C.S. § 5323(b) Presently, as in Langendorfer, there was no petition to (“The court may issue an interim award of custody to a modify custody before the trial court during the contempt party who has standing ... in the manner prescribed by the proceedings, Father neglected to provide the notice and order Pennsylvania Rules of Civil Procedure governing special to appear pursuant to Rule 1915.12(a), and the scheduling relief in custody matters.”). However, the trial court did not orders that the court issued did not disclose that the trial enter an order to that effect in the case at bar. In fact, the trial court unquestionably granted Father shared physical custody court would address the matter of physical custody during the contempt proceeding. While Father included a custody- as an impermissible sanction for contempt. Indeed, the related prayer for relief in his contempt petition and the court explicitly directed, “[The] appropriate sanction [against proposed order that he submitted for the court's approval, Mother] is to award shared custody until the parties undergo Mother was not provided the requisite specific notice in the trial.” Trial Court Order, 12/24/15, at unnumbered page 7. the contempt petition and the attendant orders directing her to appear that her custody rights would be at stake. See Accordingly, for all of the foregoing reasons, we affirm the trial court's adjudication of contempt for Mother's relocation Everett, supra . Accordingly, Father's notice to Mother in contravention of the order directing compliance with § that he sought to modify the custody arrangement during the 5337, reverse the finding that Mother was in contempt for contempt proceedings was deficient, and, absent notice of placing B.M. in the preschool of her choice, vacate the court's that objective, the trial court erred in modifying custody as a contempt sanction awarding Father shared physical custody, contempt sanction. and remand the matter for the trial court to recalculate its award of attorney fees in light of our holding. In light of the [11] Finally, we observe that the certified record delays that have plagued this custody litigation, we direct the demonstrates that the trial court did not intend to issue special trial court to hold the custody hearing expeditiously. relief pursuant to its authority under Pa.R.C.P. 1915.13. Under appropriate circumstances, a trial court may modify *1271 Order affirmed in part, reversed in part, and remanded a custody order temporarily pursuant to Rule 1915.13. 6 for further proceedings. Jurisdiction relinquished. See Choplosky, supra at 343, (“ ‘special relief’ may in some cases be appropriate (and necessary) where the All Citations situation is such that, for example, temporary modification of custody or visitation rights would preserve the well- 164 A.3d 1260, 2017 PA Super 167

Footnotes 1 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 deprived the 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 and the trial court held an evidentiary hearing before determining, inter alia, that the proposed move constituted a relocation because it involved changes that would significantly impair the father's ability to exercise his current custodial rights. As Mother abandoned the § 5337 procedures in this case, the required hearing did not occur, and the trial court was unable to 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 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 or suspension 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 days of the scheduling order). 5 We reject Mother's related assertion that Father's failure to accomplish strict compliance with the Pa.R.C.P. 1915.12 notice requirements warrants overturning the trial court's contempt finding. It is well-settled that “procedural due process requires, 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 petition notified 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. She merely complains that he failed to attach a “Notice and Order to Appear” pursuant to Rule 1915.12(a). Indeed, Mother appeared with counsel at the appropriate place and time for the contempt hearing and vehemently contested Father's petition. Therefore, Mother's challenge to the propriety of the contempt determination based upon the noted defects is unpersuasive. 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 interim or 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 be brought before the court; and a 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.

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Purdon's Pennsylvania Statutes and Consolidated Statutes Title 23 Pa.C.S.A. Domestic Relations (Refs & Annos) Part VI. Children and Minors Chapter 53. Child Custody (Refs & Annos)

23 Pa.C.S.A. § 5323

§ 5323. Award of custody

Effective: January 24, 2011 Currentness

(a) Types of award.--After considering the factors set forth in section 5328 (relating to factors to consider when awarding custody), 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 (relating to standing for any form of physical custody or legal custody) or 5325 (relating to standing for partial physical custody and supervised physical custody) in the manner prescribed by the Pennsylvania Rules of Civil Procedure governing special relief in 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 opinion or order.

(e) Safety conditions.--After considering the factors under section 5328(a)(2), if the court finds that there is an ongoing risk of harm to the child or an abused party and awards any form of custody to a party who committed the abuse or who has a household member who committed the abuse, the court shall include in the custody order safety conditions designed to protect the child or the abused party.

(f) Enforcement.--In awarding custody, the court shall specify the terms and conditions of the award in sufficient detail to enable 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 or suspension 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 result in 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, but any 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.

Credits 2010, Nov. 23, P.L. 1106, No. 112, § 2, effective in 60 days [Jan. 24, 2011].

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) regarding payment of arrearages for alimony and alimony pendente lite. Subsection (h) removes a long-standing obstacle to a party 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. § 5323 Current through 2019 Regular Session Act 75. Some statute sections may be more current, see credits for details.

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Purdon's Pennsylvania Statutes and Consolidated Statutes Title 23 Pa.C.S.A. Domestic Relations (Refs & Annos) Part VI. Children and Minors Chapter 53. Child Custody (Refs & Annos)

23 Pa.C.S.A. § 5328

§ 5328. Factors to consider when awarding custody

Effective: January 1, 2014 Currentness

(a) Factors.--In ordering any form of custody, the court shall determine the best interest of the child by considering all relevant factors, 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 risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.

(2.1) The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement with protective 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 where reasonable 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 adequate for the child's emotional needs.

(10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of 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 cooperate with 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.

(16) Any other relevant factor.

(b) Gender neutral.--In making a determination under subsection (a), no party shall receive preference based upon gender in any award granted under this chapter.

(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 standing under section 5325(3), the court shall consider whether the award:

(i) interferes with any parent-child relationship; and

(ii) is in the best interest of the child.

Credits 2010, 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. § 5328 Current through 2019 Regular Session Act 75. Some statute sections may be more current, see credits for details.

Purdon's Pennsylvania Statutes and Consolidated Statutes Pennsylvania 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 or special relief. The relief may include, but is not limited to, the award of temporary legal or physical custody; the issuance of appropriate process directing that a child or a party or person having physical custody of a child be brought before the court; and a 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.

Credits Adopted Dec. 10, 1981, effective July 1, 1982; effective date extended to Jan. 1, 1983 by order of June 25, 1982. Readopted Nov. 8, 1982, effective Jan. 1, 1983. Amended Aug. 1, 2013, effective Sept. 3, 2013.

Editors' Notes

EXPLANATORY COMMENT--1981 Rule 1915.13 contains a broad provision empowering the court to provide special relief where appropriate. In a custody proceeding, such special relief might include relief in the nature of a writ of ne exeat, directing the parties not 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 not be 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 1915.13 Current with amendments received through October 15, 2019.

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Purdon's Pennsylvania Statutes and Consolidated Statutes Title 23 Pa.C.S.A. Domestic Relations (Refs & Annos) Part VII. Abuse of Family Chapter 61. Protection from Abuse (Refs & Annos)

23 Pa.C.S.A. § 6108

§ 6108. Relief

Effective: April 10, 2019 Currentness

(a) General rule.-- Subject to subsection (a.1), the court may grant any protection order or approve any consent agreement to bring 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 the defendant or restoring possession to the plaintiff if the residence or household is jointly owned or leased by the parties, is owned 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 defendant is the sole owner or lessee, granting possession to the plaintiff of the residence or household to the exclusion of the defendant by evicting the defendant or restoring possession to the plaintiff or, with the consent of the plaintiff, ordering the defendant to provide suitable alternate housing.

(4) Awarding temporary custody of or establishing temporary visitation rights with regard to minor children. In determining whether to award temporary custody or establish temporary visitation rights pursuant to this paragraph, the court shall consider any 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 two calendar years prior to the filing of the petition for protection order or that the defendant poses a risk of violating 18 Pa.C.S. § 2904.

(ii) Where the court finds after a hearing under this chapter that the defendant has inflicted abuse upon the plaintiff or a child, the court may require supervised custodial access by a third party. The third party must agree to be accountable to the 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 plaintiff or 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 custody shall not be disturbed or changed unless the court finds that the defendant is likely to inflict abuse upon the children or to remove the children from the jurisdiction of the court prior to the hearing under section 6107(a). Where the defendant has forcibly or fraudulently removed any minor child from the care and custody of a plaintiff, the court shall order the return of 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 custodial rights, the court shall consider, and may impose on a custody award, conditions necessary to assure the safety of the plaintiff and minor children from abuse.

(5) After a hearing in accordance with section 6107(a), directing the defendant to pay financial support to those persons the 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 and spouse, directing the defendant to pay all of the unreimbursed medical expenses of a spouse or minor child of the defendant to the provider or to the plaintiff when he or she has paid for the medical treatment, and directing the defendant to make or continue to make rent or mortgage payments on the residence of the plaintiff to the extent that the defendant has a duty to support the plaintiff or other dependent household members. The support order shall be temporary, and any beneficiary of the 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 defendant to 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 and from harassing the plaintiff or plaintiff's relatives or minor children.

(7) Prohibiting the defendant from acquiring or possessing any firearm for the duration of the order, ordering the defendant to temporarily relinquish to the sheriff or the appropriate law enforcement agency any firearms under the defendant's possession or control, and requiring the defendant to relinquish to the sheriff or the appropriate law enforcement agency any firearm license issued under section 6108.3 (relating to relinquishment to third party for safekeeping) or 18 Pa.C.S. § 6106 (relating to firearms not to be carried without a license) or 6109 (relating to licenses) the defendant may possess. The court may also order the defendant to relinquish the defendant's other weapons or ammunition that have been used or been threatened to be used in an incident of abuse against the plaintiff or the minor children. A copy of the court's order shall be transmitted to the chief 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 any firearm license pursuant to the provisions of this chapter within 24 hours of service of a temporary order or the entry of a final order or the close of the next business day as necessary by closure of the sheriffs' offices, except for cause shown at 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 ammunition shall, in lieu of relinquishing specific firearms, other weapons or ammunition which cannot reasonably be retrieved within the time for relinquishment in clause (A) due to their current location, provide the sheriff or the appropriate law enforcement agency with an affidavit listing the firearms, other weapons or ammunition and their current location. If the defendant, within the time for relinquishment in clause (A), fails to provide the affidavit or fails to relinquish, pursuant to this chapter, any firearms, other weapons or ammunition ordered to be relinquished which are not specified in the affidavit, the sheriff or the appropriate law enforcement agency shall, at a minimum, provide immediate notice to the court, the plaintiff and appropriate law enforcement authorities. The defendant shall not possess any firearms, other weapons or ammunition specifically listed in the affidavit provided to the sheriff or the appropriate law enforcement agency 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 to retrieve 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 entry of 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 to relinquishment for consignment sale, lawful transfer or safekeeping) or 6108.3 or to the sheriff or the appropriate law enforcement 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 or ammunition and any firearm license listed in the court's order for the duration of the order or until otherwise directed by court order. In securing custody of the defendant's relinquished firearms, the sheriff or the appropriate law enforcement agency shall comply with 18 Pa.C.S. § 6105(f)(4) (relating to persons not to possess, use, manufacture, control, sell or transfer firearms). In securing custody of the defendant's other weapons and ammunition, the sheriff or the appropriate law enforcement agency shall provide the defendant with a signed and dated written receipt which shall include a detailed description 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 to abandonment of firearms, weapons or ammunition) are satisfied and may then be disposed of in accordance with 18 Pa.C.S. § 6128.

(iii) The sheriff or the appropriate law enforcement agency shall provide the plaintiff with the name of the person to which any 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 to relinquish any firearm, other weapon, ammunition or firearm license within 24 hours or upon the close of the next business day due to closure of sheriffs' or appropriate law enforcement agencies' offices or within the time ordered by the court upon cause being shown at the hearing, the sheriff or the appropriate law enforcement agency shall, at a minimum, provide immediate 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 ammunition ordered relinquished shall be kept in the files of the court as a permanent record thereof and withheld from public inspection except:

(A) upon an order of the court granted upon cause shown;

(B) as necessary, by law enforcement and court personnel; or

(vi) As used in this paragraph, the term “defendant's firearms” shall, if the defendant is a licensed firearms dealer, only include firearms in the defendant's personal firearms collection pursuant to 27 CFR § 478.125a (relating to personal firearms collection).

(7.1) If the defendant is a licensed firearms dealer, ordering the defendant to follow such restrictions as the court may require concerning the conduct of his business, which may include ordering the defendant to relinquish any Federal or State license for the sale, manufacture or importation of firearms as well as firearms in the defendant's business inventory. In restricting the defendant pursuant to this paragraph, the court shall make a reasonable effort to preserve the financial assets of the defendant's business 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 or personal property damaged, destroyed or taken by the defendant or at the direction of the defendant; and other out-of-pocket losses for injuries sustained. In addition to out-of-pocket losses, the court may direct the defendant to pay reasonable attorney fees. An award under this chapter shall not constitute a bar to litigation for civil damages for injuries sustained from the acts of 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 18 Pa.C.S. §§ 2709 (relating to harassment) and 2709.1 (relating to stalking).

(10) Granting any other appropriate relief sought by the plaintiff.

(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 or threatening to use physical force against the plaintiff or minor children and must order that the defendant is subject to the firearms, 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 or threatening to use physical force against the plaintiff or minor children and may order that the defendant is subject to the firearms, 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 Social Security 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 written petitions, complied with service requirements under section 6106 (relating to commencement of proceedings) and are eligible for 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 fixed period of time not to exceed three years. The court may amend its order or agreement at any time upon subsequent petition filed 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 procedures set forth in sections 6106 and 6107, that the defendant committed one or more acts of abuse subsequent to the entry of the final order or that the defendant engaged in a pattern or practice that indicates continued risk of harm to the plaintiff or minor child.

(ii) When a contempt petition or charge has been filed with the court or with a hearing officer in Philadelphia County, but the hearing has not occurred before the expiration of the protection order, the order shall be extended, at a minimum, until the disposition 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 released from custody in the next 90 days or has been released from custody within the past 90 days. The plaintiff does not need to show that the defendant committed one or more acts of abuse subsequent to the entry of the order or that the defendant engaged in a pattern or practice that indicates continued risk of harm to the plaintiff or minor children as set forth in subparagraph (i).

(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 plaintiff files 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 will subject the defendant to arrest under section 6113 (relating to arrest for violation of order) or contempt of court under section 6114 (relating to contempt for violation of order or agreement). Resumption of coresidency on the part of the plaintiff and defendant 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 real property.

(i) Third parties and affidavits.--A court requiring relinquishment of firearms under this section shall provide for the hearing of petitions by third parties who request the return of a firearm relinquished by the defendant under subsection (a)(7). The following apply:

(1) A third party claiming to be the lawful owner of a firearm relinquished by the defendant under subsection (a)(7) may request 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 allow access to the firearm by the defendant.

(ii) The third party who is the lawful owner understands that violating subparagraph (i) constitutes a misdemeanor of the second 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 returned under this section must be stored in a gun safe to which the defendant does not have access and will not be permitted to access, 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 independently confirm 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.

Credits 1990, 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, May 10, 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. § 6108 Current through 2019 Regular Session Act 75. Some statute sections may be more current, see credits for details.

Purdon's Pennsylvania Statutes and Consolidated Statutes Title 23 Pa.C.S.A. Domestic Relations (Refs & Annos) Part VI. Children and Minors Chapter 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, 2004 Currentness

(a) General rule.--A court of this Commonwealth has temporary emergency jurisdiction if the child is present in this Commonwealth and the child has been abandoned or it is necessary in an emergency to protect the child because the child or a 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 to be enforced under this chapter and a child custody proceeding has not been commenced in a court of a state having jurisdiction under 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 having jurisdiction under sections 5421 through 5423. If a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction under sections 5421 through 5423, a child custody determination made under this section becomes a final 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 be enforced under this chapter or a child custody proceeding has been commenced in a court of a state having jurisdiction under sections 5421 through 5423, any order issued by a court of this Commonwealth under this section must specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under sections 5421 through 5423. The order issued in this Commonwealth remains in effect until an order is obtained from the 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 child custody determination under this section, upon being informed that a child custody proceeding has been commenced in or a child custody determination has been made by a court of a state having jurisdiction under sections 5421 through 5423, shall immediately communicate with the other court. A court of this Commonwealth which is exercising jurisdiction pursuant to sections 5421 through 5423, upon being informed that a child custody proceeding has been commenced in or a child custody determination has been made by a court of another state under a statute similar to this section, shall immediately communicate with the court of that state to resolve the emergency, protect the safety of the parties and the child and determine a period for the duration of the temporary order.

Credits 2004, June 15, P.L. 236, No. 39, § 3, effective in 60 days [Aug. 16, 2004].

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, as Professor Bodenheimer's comments to that section noted, “an extraordinary jurisdiction reserved for extraordinary circumstances.”

This section codifies and clarifies several aspects of what has become common practice in emergency jurisdiction cases under the UCCJA and PKPA. First, a court may take jurisdiction to protect the child even though it can claim neither home state nor significant connection jurisdiction. Second, the duties of states to recognize, enforce and not modify a custody determination of another state do not take precedence over the need to enter a temporary emergency order 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 (sections 5421 through 5423) enters an order.

Under certain circumstances, however, subsection (b) provides that an emergency custody determination may become a final custody determination. If there is no existing custody determination, and no custody proceeding is filed in a state with jurisdiction under sections 201--203 (sections 5421 through 5423), an emergency custody determination made under this section becomes a final determination, if it so provides, when the state that issues the order becomes the home state of the child.

Subsection (c) is concerned with the temporary nature of the order when there exists a prior custody order that is entitled to be enforced under this Act or when a subsequent custody proceeding is filed in a state with jurisdiction under sections 201--203 (sections 5421 through 5423). Subsection (c) allows the temporary order to remain in effect only so long as is necessary for the person who obtained the determination under this section to present a case and obtain an order from the state with jurisdiction under sections 201--203 (sections 5421 through 5423). That time period 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 would lapse by its own terms at the end of the specified period or when an order is obtained from the court with jurisdiction under sections 201--203 (sections 5421 through 5423). The court with appropriate jurisdiction also may decide, under the provisions of 207 (section 5427), that the court that entered the emergency order is in a better position to address the 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 temporary emergency determination is subject to the provisions of sections 111 and 112 (sections 5411 and 5412). These sections facilitate the presentation of testimony and evidence taken out of state. If there is a concern that the person obtaining the temporary emergency determination under this section would be in danger upon returning to the state with jurisdiction under 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 section and 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 section 209(d) (section 5429(d)) of any proceeding concerning the child that has been commenced elsewhere. The person commencing the custody proceeding under sections 201--203 (sections 5421 through 5423) is required under section

209(a) (section 5429(a)) to inform the court about the temporary emergency proceeding. These pleading requirements are to be strictly followed so that the courts are able to resolve the emergency, protect the safety of the parties and the child, 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. The PKPA's definition of emergency jurisdiction does not use the term “neglect.” It defines an emergency as “mistreatment or 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 the PKPA, if a state exercised temporary emergency jurisdiction based on a finding that the child was neglected without a 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 of state procedures on the use of protective orders to alleviate problems of domestic violence. Issues of custody and visitation often arise within the context of protective order proceedings since the protective order is often invoked to keep one parent away from the other parent and the children when there is a threat of violence. This Act recognizes that a protective order proceeding will often be the procedural vehicle for invoking jurisdiction by authorizing a court to assume temporary emergency jurisdiction when the child's parent or sibling has been subjected to or threatened with mistreatment or abuse.

In order for a protective order that contains a custody determination to be enforceable in another state it must comply with 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 expressly excludes “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 does not address the propriety of that procedure. It is left to local law to determine the circumstances under which such an 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 and nonmodification under this Act and the PKPA only if there has been notice and a reasonable opportunity to be heard as set out in section 205 (section 5425). Although VAWA does require that full faith and credit be accorded to ex parte protective 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 full faith and credit to a protective order issued in another state if the order is made in accordance with the VAWA. This would include those findings of fact contained in the order. When a court is deciding whether an emergency exists under 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. § 5424 Current through 2019 Regular Session Act 75. Some statute sections may be more current, see credits for details.