As a trial lawyer, there were many days when I would sit in the back of a courtroom and take comfort in the fact that I didn’t have to decide the custody case that I was witnessing as a spectator. At times the facts made the case challenging. Other times, there was a decided “ick” factor. And then there were the cases where you realized that whatever the judge did, the harm inflicted on the child was likely irreversible.

Killebrew v. Gardner, decided on January 3 in a non-precedential opinion, has it all. The initial facts are scarcely unique. A couple has a brief marriage but separates before their daughter is born in 2013. For the next seven years there are several trips to court. Father’s custody was somewhat less than we see typically but had expanded over time to the equivalent of three nights per week by 2015.

In January 2020 Mother heard that Father’s current wife had been involved in two auto collisions while the child was in the car. She sought a modification based on this perceived danger. When the matter got to hearing, Father brought evidence that Mother of the then seven-year-old child was a “presenter” on a subscription sex site known as “Only Fans.” The Superior Court “judiciously” references a New York University law review article about this business in case the reader is not aware of its existence. This may have been superfluous as “Only Fans” reports 170 million users who watch roughly 2 million “creators” such as Ms. Gardner. Lots of fans.

The Court immediately suspended mother’s custody pending a forensic interview of the child. When the interviewer reported that the child professed no awareness of mother’s avocation the court resumed contact but ordered mother to delete her Only Fans account. After six months mother was granted alternate weekend custody. A year after matters exploded mother’s time was expanded from Friday to Tuesday on alternate weeks.

The Superior Court opinion refers to these proceedings as before a hearing officer and the changes were effected pursuant to a succession of modification petitions. The Court then describes a custody “trial” in Spring 2023 which culminated in a shared legal and physical custody order from which father appealed.

In August 2023 we wrote that clients tend to overvalue the effect that reports of marijuana use will have on a custody case. This case reported on January 3 seems to indicate that sex work may have attained a similar status. In the end, both the trial and appellate courts find that because there was no evidence that the child was even aware let alone affected by mother’s sexual conduct, it was not a factor even under the catchall custody factor, Section 5328(a)(16). The Courts note that mother had suspended any appearance on Only Fans in May 2020.

Curiously the appellate court climbs pretty far out on the judicial limb observing that “morality is not an enumerated factor” under the custody statute. While that point is technically correct, one can foresee that quotation being deployed to defend lots of behavior that society might otherwise condemn in a world where courts are supposed by operate in parens patriae. The Superior Court notes that polyamorous relationships have been deemed irrelevant in V.B. v. J.E.B., 55 A.3d 1193 (Pa.S. 2012) and more recently in Bolds v. Bowe, 570 E.D.A. 2022.

The real problem here is father’s perception that his discovery of the Only Fans account was his ticket to win. Certainly, it looked that way for the first three years. When the news “broke” in 2020, the child was only seven. Meanwhile the initial reaction of the court was to convert mom’s primary custody to “no contact.” One can only speculate what was the child’s perception of this reversal. Part of the problem here may have arisen because the mother appeared pro se. But it is clear she was diligent in filing again and again for restoration of time with the child.

While it was not that long ago that adulterous behavior could yield an adverse custody result, we have come a long way. For the past thirty years, appellate courts have consistently held that unseemly behavior must have an impact on the child before it becomes a significant factor in a custody decision. In this case the behavior stopped while the child was still quite young. But kids who are approaching puberty are more likely (a) to learn about their parent’s sexual habits or proclivities and (b) become unsettled by either the behavior itself or the chance it might become public. In this case the punishment of the interim orders seems to have far exceeded any perceived “crime” in a moral sense. But while the child in this case may have known nothing about her mother’s side gig at age 7, she is now 10 and her parents are still at war over it. One can argue that the father who professed to protect his daughter from harm may have inflicted more harm than he sought to mitigate by making this a cause that has gone on for almost four years.

A side note: Often lost in the shuffle of these cases are how procedural irregularities are overlooked by the appellate courts. The procedural history in this case makes numerous references to custody modifications effected by a “hearing officer.” We have reams of appellate cases saying that modifications of court orders require a judge making a complete record. Yet, nothing is said about the employment of hearing officers to modify custody in really drastic ways. Also of note is that the last modification request did not go to a record judicial trial for more than 20 months. Again, there may be explanations for all of this but in a world where cases are supposed to be “fast tracked” and “judge decided” the appellate opinion says very little.

Killebrew v. Gardner 1927 EDA 2023 (Pa.Super)