Since the child custody statute was updated in 2010, a considerable about of time and effort on the part of the Superior Court has been spent clarifying various aspects of the law. Among the more pertinent issues related to how the statute was to function is the trial court’s obligation to consider and opine on all of the custody factors. Previous appellate cases have shaped this requirement (or, conversely, the absence of the requirement) where “discrete” issues of custody are being considered or where a substantive change to the custody schedule is occurring.
It is the latter where the Superior Court has recently remanded a case back to the Trial Court with an order for it to fully explore and articulate how they have addressed the custody factors in a given case. In that case, C.A.J. v. D.S.M., 2016 WL 685169, Father filed a contempt petition on the parties 2013 agreed custody order. Within that petition, he sought a significant modification of the custody schedule to award him primary custody.
Their original 2013 agreement provided that Mother had primary physical custody during the school year, and the parties had 50/50 custody from May until September on a week on/week off basis. Eventually issues arose and Mother relocated without judicial or Father’s approval as required by the Custody statute. Father filed for contempt of the 2013 custody order and sought to modify custody to have primary physical custody. He did not file a separate modification petition. A 2015 Order was entered by the trial court after a hearing whereby the parties were to share physical custody on a two week on/two week off schedule.
Mother appealed on the basis that the trial court did not consider all of the custody factors, nor did she have notice sufficient to satisfy the due process clause of the Constitution. Her theory was essentially that whether or not the Trial Court can modify a custody order during a contempt hearing rests on the responding party having sufficient notice of a request for modification. When modifying custody, due process rights attach to the responsive party. Without sufficient notice, modification cannot occur. In this case, Father’s contempt petition included a request to modify physical custody of the child. The Court directed the parties to custody conciliation which both parties participated in and which, by extension, demonstrated mother’s constructive knowledge that the custody order was at issue. Essentially, mother knew that within the contempt the underlying custody order was in contest and potentially subject to change. Accordingly, the Superior Court upheld the Trial Court’s ability to modify the custody order within the contempt action. The Superior Court also relied on case law and Rule 1915.15 which allows for modification of custody/visitation Orders where it is in the best interests of the child.
So while the Superior Court would not disturb the Trial Court’s ability to modify the order, it did take exception with how it addressed the custody factors. The Superior Court found that the Trial Court’s truncated list of custody factors identified in its opinion was insufficient, citing Pennsylvania case law for the requirement that all custody factors be considered. On that basis, the Superior Court remanded the case back to the trial court for the limited purpose of issuing an opinion addressing all custody factors.
This case does establish that a contempt action with sufficiently pled averments for a modification of custody will be sufficient to establish notice for due process purposes and avoid having to file two petitions or pursue custody and modification on two separate procedural tracts.
Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; firstname.lastname@example.org, and on Twitter@AaronWeemsAtty.