Court Scolded for Modifying Custody in Contempt Proceeding

November 19, 2012 | Child Custody, Legal Perspective

Icon for author Brian Vertz Brian Vertz

In PHD v. RRD, 2012 PA Super 246 (November 13, 2012), the appeal arose in a custody proceeding. Father and Mother were the divorced parents of two children, whose custody was governed by a September 2011 custody order. That order limited Father’s custody to weekly supervised visits until he completed therapy, and specifically directed Father “to have no contact with the children other than supervised visits.” In January, 2012, Mother filed a contempt petition, in which she claimed that Father had attended the child’s band concert in a school auditorium, sat in the front row, and, during the concert, waved his arms to contact the child. Mother further testified that, after the performance, Father videotaped Mother and the child in the school’s hallway. She also testified that Father frequently drives past Mother’s house. These actions, claimed the Mother, were violations of the existing custody order.

No petition for modification or clarification was filed by Father, and yet the trial court entered an order “dismissing the contempt petition at this time but . . . modifying the [custody] order to clarify it. And what I’m saying in the order from now on is that [Father] is . . . not to appear at places where the children would be reasonably expected to be . . . .” The Superior Court overlooked procedural defects in Father’s appeal to issue its ruling, holding that the trial court did not have authority to modify or clarify its order in a contempt proceeding where neither party had filed a petition seeking modification or clarification. The Superior Court disagreed with the trial judge’s opinion that he had only clarified, and not modified, the existing custody order. The Superior Court borrowed from the UCCJEA definition of modification, which is “[a] child custody determination that changes, replaces, supersedes or is otherwise made after a previous determination concerning the same child, whether or not it is made by the court that made the previous determination.”

Holding that Father was deprived of due process, the Superior Court noted that the “clarification” would impose severe restrictions on the Father’s activities as he sought to avoid going to places where his children might reasonably be expected to be, such as local malls, amusement parks, or sports arenas. Going into the contempt proceeding, Father was given no notice that such liberties were at issue and did not have an opportunity to be heard. For these reasons, the Superior Court reversed the contempt order issued by the trial court.

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