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Pennsylvania formalized the use of Parent Coordinators in custody cases several years ago when the Superior Court’s rendered their 2008 opinion in the case of Yates v. Yates. As part of the Yates decision, the Superior Court held that the appointment of a Parent Coordinator in a high conflict custody case was a reasonable exercise of discretion and did not constitute the delegation of judicial authority to a quasi-judicial body (i.e. the Parent Coordinator). The Superior Court also established the parties’ due process rights to a de novo review of the Parent Coordinator’s decision by the Trial Court. A de novo review means that the Court is taking a completely fresh look at the issue and is not obligated to make or accept the same conclusions, interpretations, or issue the same Order as the prior level did (in this case, the Parent Coordinator); their job is to look at all of the information as though it is brand new to everyone and reach a decision based on the evidence presented.

The issue of a party’s right to a de novo review and what that review ought to look like was recently considered once again by the Superior Court’s December 18, 2012 opinion in the matter of A. H. vs. C.M., 2012 WL 658 6356 (Pa.Super.). In this case, the mother appealed the Trial Court’s decision not to conduct a de novo review of a decision of the Parent Coordinator and, instead, affirmed the decision without taking testimony or otherwise conducting a hearing on the record; basically, the Trial Court rubber-stamped the Parent Coordinator’s decision.

The first step in looking at what happened in the A.H. case is to consider how the parties are able to get their issues before the Trial Court. The basic procedure for appealing Parent Coordinator Orders was written in the Order appointing the Parent Coordinator to the case and allowed a party who disputed the Parent Coordinator’s decision twenty (20) days to file a Motion for review with the Trial Court. Upon filing for a review of the decision, the Trial Court would then make an independent determination as to whether the decision represents an abuse of the Parent Coordinator’s discretion or is contrary to fact or the law.

In the A.H. case, the mother made the appropriate appeal to the Trial Court, but found a less than receptive audience when she had her day in court; the mother was only given four (4) minutes by the Trial Court to make her argument. The Trial Court relied upon a summation by the attorneys of the Parent Coordinator’s decision in affirming the Coordinator’s Order. Interestingly, the Court recognized that Yates applied to this process, however, they essentially found that the de novo hearing was not needed in this instance. The Superior Court, in reviewing the appeal, determined that the Trial Court’s decision not to conduct a de novo review was wrong and that Yates firmly establishes that Parent Coordination has its own procedure, is subject to due process, and that the Trial Court may not deny mother a hearing de novo. By not giving her the opportunity to present her case in its entirety, the Superior Court found she was denied due process rights.

As a result, the Superior Court reversed the Trial Court’s decision with respect to mother’s appeal of the Parent Coordinator’s Order and directed that a de novo review be held by the Trial Court within thirty (30) days and that the Trial Court outline the Parent Coordinator’s decision in a manner consistent with the Superior Court’s holding in Yates. Worth noting is that the Trial Court may reach the exact same decision as they did the first time, but at least the mother will have had the opportunity to offer evidence into the record.

An interesting side note to this case is that it gives a glimpse into the level of frustration courts can reach when dealing with "frequent flyer" parties who are always bringing each other back to court. The Superior Court points out the reference to the Trial Court not wanting to see the parties back over "some talent show communication." I suspect these individuals were very familiar to the Trial Court judge and had likely litigated similarly inane issues which unnecessarily took up the Court’s time – which is exactly why a Parent Coordinator was appointed in the first place. Access to the Courts, however, is a fundamental right and the Superior Court cites the Pennsylvania Code of Judicial Conduct when addressing the comments from the Trial Court; such comments from the bench could have a chilling effect on people and discourage them from bringing important issues to the attention the court.

Parent Coordination can be a useful tool to address "talent show communications" but it is the procedure for being able to appeal those issues which allows for the overall process to effectively operate in a fair manner towards both parties. The opinion of A.H. v. C. M. affirms the Court’s decision in Yates (which, coincidentally, featured my colleague,

Natalie Famous, Esquire as the Parent Coordinator) and definitively establishes the due process procedure for addressing appeals of the Coordinator’s decision.

Referenced cases can be found at: Yates v. Yates, 963 A.2d 535 (Pa.Super. 2008); A. H. vs. C.M., 2012 WL 6586356 (Pa. Super.)

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As one might expect family court is a pretty emotional place to be and at least once or twice a year a distressed litigant with an unhappy result is heard to utter the words found in this title.

We thought it might be of some interest to report on how appeals work and if the Supreme Court is a place where relief can be had.  The discussion necessarily starts with: what Supreme Court?  There are two of relevance here.  The Supreme Court of Pennsylvania is the Commonwealth’s highest appellate court and the oldest such court in the nation.  What most citizens do not realize is that, by and large, it is a court of discretionary appeals. This is to say that the Court decides what cases it will hear based upon orders granting allowance of such appeals.  You have to ask the court to review your case and the justices actually vote on whether to do so.  There are published appellate rules stating that the criteria used to decide when they will exercise their discretion in favor of hearing an appeal.  The most commonly invoked rule is that the appellant presents a unique question of law not previously decided and which the court believes of sufficient importance to merit review.  The second route to the state Supreme Court is to show that a ruling of the Pennsylvania Superior Court strays from existing law and is inconsistent with established precedent.

Now, what about the “nine” who inhabit that building behind the Capitol in Washington?  The United State Supreme Court is also a court of limited jurisdiction.  Ordinarily it will grant “certiorari” (also an allowance of appeal) in cases where there is a federal question, meaning a question involving laws passed by Congress and interpreted in the federal judicial system.  Each state and the District of Columbia have both federal courts and state courts.  The United States Supreme Court may also grant an appeal in matters where state courts have abridged rights which the US Supreme Court views as fundamental.  Common examples of this are found in the area of criminal law where states have adopted laws or procedures the US Supreme Court finds inimical to well established freedoms such as the right of privacy, the right to a fair trial or the right to hold property.

It is exceptionally rare for the United States Courts including the federal district courts in each state or the US Supreme Court to hear family court matters.  There is actually authority holding that family law matters are best left to the states themselves to decide.  The US Supreme Court has ruled that the rights of a parent are “fundamental” but except in circumstances involving termination of parental rights (in contrast to regulation of them) the United States Courts are to abstain from hearing matters involving family law.  This general rule has some exceptions but they are tiny.  In a word, the US Supreme Court is not going to hear an appeal of your divorce, custody or support case unless you can show that the procedure the state has established to regulate those cases is so flawed that it denies you fundamental rights like due process of law.

As for the Pennsylvania Supreme Court, it has much broader powers to decide what cases it will hear.  We recently asked the Supreme Court to review a decision of the Pennsylvania Superior Court where we believed the Superior Court had misconstrued both the state law governing support and precedent laid down by the Supreme Court in the 1990s regulating what constituted income for support purposes.  A 1984 statute had established the definition of income for purposes of support.  The Supreme Court had ruled in Humphreys v. DeRoss that income did not include gifts or loans that a party received unless a party had a plain right to the gift. Almost all gifts are given in the discretion of the donor and not a matter of “right”.

In our judgment the Superior Court had strayed from established precedent when it reversed a trial court ruling holding that money our client had received as a gift was not income for support.  We filed a request for allowance of appeal asking the Supreme Court to review the matter and, in June of this year, it not only adopted our position but instantly reversed the Superior Court and reinstated the trial court ruling.  This is uncommon because, the standard procedure is to grant the appeal and then review briefs and hear argument from both sides.  

But because there was already statutory authority defining income and Supreme Court had recently interpreted that statute, it appears to have decided that further debate of the issue was not required.

Appeals are, and have always been, a slow and expensive process.  Customarily they are heard only after all of the trial court proceedings are concluded.  One has the right to appeal any final ruling of a trial court, but that appeal is to the Pennsylvania Superior Court.  The party appealing must prepare a record copying all of the relevant pleadings and exhibits material to the ruling of the trial court and write a brief (of not more than 50 pages) summarizing how the trial court either failed to follow existing precedent or abused its discretion in ruling as it did.  Disposition of an appeal customarily takes nine months from the date the appeal is first filed to disposition by a three judge panel of the Superior Court.  Because appellate briefs must contain citation to applicable law and the transcripts and exhibits used at trial it is fairly common to take an hour to write each page of an appellate brief.  Appeals are ordinarily disposed of after oral argument by a written opinion evaluating the merit of the appeal.  The Supreme Court does this only in cases where it decides that the appeal merits consideration in the first place.

So if you are “taking this up” to a higher court, it is helpful to know where and how an appeal is processed.

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