Child Custody, Visitation & Relocation

COURT ORDERED EQUAL PARENT’S CUSTODY WHERE OLDER CHILD ULTIMATELY EXPRESSED HER INTEREST FOR EQUAL PARENTING TIME

Trial court did not err in granting interim and final orders equalizing parents’ custody time where older child ultimately expressed her preference for equal parenting time. Orders of the trial court affirmed in part and vacated in part.

Father D.B. appealed from the trial court’s order decreasing the number of days father exercised physical custody of the parties’ daughter, K.B., and from the trial court’s interim order and denial of father’s motion for special relief from two prior orders. Following the parties’ divorce, they shared custody pursuant to their MSA. Thereafter, mother E.B. petitioned for primary custody while father counter-petitioned to enforce shared custody and to prevent mother from relocating to Virginia with K.B. The trial court ultimately prohibited mother from relocating with K.B. or taking her out of the district for more than two consecutive overnights. Eventually, the parties settled on a custody arrangement following K.B.’s entry into kindergarten whereby father would exercise custody for two-thirds of the time during the school years and the parties would share custody during the summer.

 Over the following years, the parties engaged in further litigation, with father repeatedly filling petitions to obtain primary legal custody and modify physical custody based on mother’s alleged contempt violation of the existing custody order. Mother petitioned for shared physical custody on a 50/50 basis. The trial court granted the interim order on appeal, directing the parties to share legal and physical custody of K.B. Thereafter, father filed two motions for special relief to reinstate all prior custody orders, arguing that the trial court’s interim order was causing numerous conflicts between the parties. Father again petitioned for contempt, alleging mother was in violation of the interim order, specifically citing evidence that mother was employed in Maryland and was therefore not being truthful about her ability to spent time to parent K.B. Ultimately, the trial court determined that it was in K.B.’s best interest for the parties to equally share custody.

On appeal, the court affirmed in part and reversed in part the orders of the trial court on appeal. Although the court noted that the interim order had been mooted by the subsequent final order of the trial court, it decided to proceed to the merits to ensure trial court’s decision. The court found no basis for the trial court to upend the custody agreement without a proper petition, as there was no emergency with respect to K.B.’s well-being. Thus, the court held that the trial court erroneously eliminated the parties’ painstakingly-litigated custody arrangement without notice and opportunity to be heard afforded to the parties or without explaining why it was in K.B.’s best interest. The court further ruled that the interim order prejudiced father because it created a new status quo that mother was able to point to in her modification petition, rather than having to prove that modification was in K.B.’s best interest.

Although the court held that it could not undo the interim order nearly two years later, it also noted that K.B., than an older teenager, has expressed her preference that her parents have more equal parenting time. The court held that courts’ power to reject the preference of an older child in absence of a threat to the older child’s best interests was limited.

Finally, the court remanded for reconsideration of father’s contempt petitions, ruling that the court abused its discretion by summarily denying father’s petitions without giving stated reasons for doing so. The court also directed the trial court to specify which prior orders were to be reinstated.

Reference: Digest of Recent Opinions, Pennsylvania Law Weekly, 42 PLW 513, Tuesday, May 28, 2019, E.B. v. D.B., PICS Case No. 19-0623 (Pa. Super. May 6, 2019)

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