Archives: Custody Order

Superior Court appeals relating to child custody are supposed to be “fast tracked” in recognition of the fact that in the life of a child, a year is a long time.  But, a land speed record was attained on February 11 when the Superior Court affirmed a Montgomery County Common Pleas order entered less than four months earlier.  The ruling by Judges Panella and Olson with Senior Judge Fitzgerald offers some more insight into what appellate courts are asking trial courts accomplish when conducting trials in custody cases.

The key ruling of the case is procedural.  The trial was conducted in April, 2014. The judge ordered the parties to return the following day for the Court’s ruling.  The Court spoke at length (44 pages) analyzing the factors under the custody statute and then concluding with an oral Order based on that analysis.  The judge directed his ruling to be transcribed so that the Order portion of the transcript would function as the final order in the case.  When the child’s mother appealed the Court’s ruling the Trial Court held that its oral Order was not appealable since it was not recorded on the docket.  This created an issue in its own right because Pa. R.C.P. 1915.10(a)-(b) says, in part, that “The Trial Court shall state the reasons for its decision either on the record in open court, in a written opinion or in the order.”

The rule is ambiguous and the Superior Court clearly saw the problem. The “ruling” is 46 pages and at least 27 are identified as part of the order.  It includes exchanges with counsel where clarification is sought, including a colloquy directed to what nights Father will have if he can work his schedule out.  At one point in the transcript the trial judge candidly admits that his own order is somewhat confusing.  As the Superior Court recites, much of this colloquy is aspirational and far from definitive.  The three judge panel held that a case is not concluded until a written order is prepared and placed on the docket.  Analysis of the custody factors may invite a judicial soliloquy, but the Order itself needs to be quite clear as to who has what responsibilities and when.  To the point, there must be an “Order” docketed in contrast to a direction to make a transcript an order.  Parenthetically the Court notes that the sixteen factor analysis must be completed and, in some form, articulated before the appeal period lapses.  See C.B. v. J.B., 65 A.3d 946 (Pa. Super. 2013) app. den. 70 A. 3d 808 (Pa. 2013).

The ruling by Judge Jack Panella with Judge Fitzgerald approving is noteworthy.   A fundamental premise of appellate law is that an Order is not an Order until it is filed on the docket whether entered in open court on a transcript or in a written form by the judge.  Absent a bright line test, an order would be “entered” not based upon a judge’s signature but a court reporter’s filing of the transcript.   Litigators know that depending upon county and circumstances, a transcript may not see the docket in the Prothonotary’s office for weeks or months following a proceeding.   Judges are clear that when they send an Order to be docketed, parties and or counsel need to be notified.  The Court reporter is not under that same duty which can cause precious appeal periods to be abbreviated or lost.

While the Appellant/Mother’s position was sustained procedurally in the explicit ruling that custody “orders” need to be drafted by Judges and not uttered to court reporters, her case fell apart quickly after that.  Mother raised eleven issues on appeal.  However, with respect to eight of her issues, the Superior Court found that the brief did not develop these issues except to conclude that the Trial Court ignored the testimony and reached the wrong result.  Quoting from  Lackner v. Glosser¸ the panel states: [A]rguments …where the party has failed to cite any authority in support of a contention…” are waived. 892 A.2d 21,29-30 (Pa. Super. 2006).  See also Chapman-Rolle v. Rolle,  893 A.2d 770, 774 (Pa. Super, 2006).

Two smaller points merit consideration.  In this case, some custody was awarded to a non-party step-mother.  Mother objected but the trial court noted that during this time, neither parent was otherwise available to provide care.  The appellate court buttressed this by stating that the step mother was in loco parentis based upon 23 Pa. C.S. 5324.  Mother made an issue of step-mother’s ingestion of anti-anxiety medications.  But the Superior Court found that the issue of how this affected the child was not developed. Similarly, Mother complained that the child was not interviewed. The Trial Court responded that it assumed that had either parent thought the views of the seven year old merited consideration, they would have offered the child’s testimony.  The panel concludes that it was not the duty of the Court to insist on an interview of a seven year old.  Lastly, the court dealt with the age old bane of all trial lawyers and judges; Appellant said the Court failed to consider the evidence the Mother forgot to bring to the trial.  You can guess how that turned out.

The substantive lessons are worthy of note.  It appears a non-party can have partial custody without becoming a party.  This is not earth shattering because otherwise every day care provider in America would be made a party.  Second, bring your evidence to trial if you expect it to be considered. Don’t assume the Court will take it upon itself to interview a child, although this is a topic that seems to have authority going both ways (Court needs to make record versus parties have responsibility to make the record).  And perhaps most importantly, a brief needs to cite cases or at least segments of the record where the Appellant believes error has occurred. Without one if not both of those legs, there is no appeal to stand on.

 

A recent published decision issued on November 7 addressed the question of how a Pennsylvania Court is to act when a Court of another state refuses to relinquish jurisdiction.  The facts are absorbing to say the least.

Mother and Father gave birth to a child in Tennessee.  They separated and Tennessee entered a shared custody order.  In late February, 2011 Mother left the child with Father and disappeared. Father remains a “person of interest” in the context of what is being treated as a homicide.  Maternal grandmother, a resident of Erie, Pennsylvania travelled to Tennessee and secured an Order permitting her to relocate the child to her home in this state.  Father was awarded visitation under the supervision of his own parents by the Tennessee Court. 

In October, 2012 Maternal Grandmother filed an emergency petition to suspend visits with Father alleging that Father had told the now seven year old child to burn down grandmother’s house and gave him matches to do so.  The Tennessee Court heard the matter and suspended visits.  

In December, 2013, Father filed in Erie County, PA to assume jurisdiction and modify.  In part, he states that he moved to Florida six months earlier.  Mother has never been found.  The child has been resident in Pennsylvania since some time in 2011.  The Pennsylvania Court scheduled the matter for March, 2014.  A week before the trial, Maternal Grandmother filed to challenge jurisdiction and attached her request to have the matter heard in Tennessee in April, 2014.  One day after the challenge to Pennsylvania jurisdiction was lodged; the Tennessee trial court wrote to the Pennsylvania Court observing that if Father had represented Tennessee’s position as one of deferring jurisdiction that was not an accurate recital of the circumstances.  The Pennsylvania Court stayed its proceedings in deference to Tennessee.  A hearing was held in Tennessee in April and it would appear that that state did not relinquish jurisdiction.  In the wake of those proceedings the Erie County judge dismissed the case as Tennessee was still acting.  

Father appealed.  A three judge panel opinion by Hon. Eugene Strassburger reversed.  The interesting factual challenge here was what status one ascribes to the “missing” parent.  If presumed alive, her last know residence was Tennessee.  The general rule of the Uniform Child Custody Jurisdiction and Enforcement Act is found at 23 Pa.C.S. 5423.  It says that Pennsylvania may modify the decrees of other states where those states relinquish jurisdiction OR a court determines that the child, the parents or other contestants do not presently reside in the state which had original jurisdiction.  The Court making that assessment can be either the Pennsylvania Court before whom the modification is pending or the original court of jurisdiction. Here, Judge Strassburger notes that the only potential litigant with a present Tennessee connection is the missing Mother and that her failure to appear anywhere in more than three years could not form a basis to assume that she was still alive, let alone resident in Tennessee. The Court then notes that the current incarnation of the Uniform Act places even greater emphasis upon “home state” jurisdiction in preference to significant contact jurisdiction.  By all accounts, Father is in Florida, mother remains missing and the child has lived with her Maternal Grandmother in Pennsylvania for three consecutive years.  The case belongs in Pennsylvania and deference to the original jurisdiction court was not to rule the day. 

T.AM. v. S.L.M. and D.M.S.  844 WDA 2014, 2014 Pa.Super. 255.

Note: The caption lists Mother as a party to the Pennsylvania proceeding.

In a recent custody case, the Court denied Father contact with his children except for supervised visits while they underwent therapy.  Mother filed a contempt petition asserting that Father violated the custody order when he went to a school concert and videotaped both the Mother and the child while there.

The trial court correctly dismissed the contempt petition after Father testified that he understood no contact to mean no physical contact or conversation with the children. But, as sometimes happens, the Court used the contempt proceeding to “clarify” what the order was meant to accomplish.  Specifically, the trial judge told the Father that he could not appear at the children’s activities.  Father appealed and in P.H.D. v. R.R.D. the Superior Court vacated the

“clarification.”

 

This is an important decision because trial court judges are frequently charged with the duty of managing unruly families who like to push the envelope when asserting their parental rights.  It may well be in this case that this was precisely what Father was trying to do.  In contempt court, however, the sole question is whether an explicit order was violated.  Period.  It is not an opportunity to “fix” an otherwise imperfect order by changing its terms.  And Superior Court judges Wecht, Bowes and Musmanno have served a purpose in reminding trial judges that if they want to amend an order, all parties need to have notice of the fact that an amendment is being considered so that they can prepare for such a hearing.  This is in accord with longstanding precedent that contempt court is not a place to modify custody orders.

 

Lest it appear that we are siding with Father, we note that there may well be a solid ground to amend the order.  For Father to have appeared at a recital and videotaped his child is clearly not a contempt of a no contact order.  But when we read that Father also videotaped Mother (assuming she was not part of the child’s performance) one questions whether the motivation was to record or to harass.  But if that is the issue, the P.H.D. case makes clear that everyone needs to have due process notice what the issue is so each party can prepare and bring witnesses who might show how the videotaping was either innocent or menacing.  If menacing perhaps a modification was in order.  We also note that the judge may have been trying to do the right thing but the opinion clearly points out that he skipped a procedural step (notice and hearing) which the principles of jurisprudence demand.

 

N.B. A curious event is reported in the case.  The guardian ad litem asserted a procedural irregularity on Father’s part that could have resulted in this appeal being quashed. Query: Is that part of a guardian’s role?

 

P.H.D. v. R.H.D. 2012 Pa. Superior. 246 (Nov. 13. 2012)