A Court May Not Use A Custody Contempt Petition To Modify A Custody Order

Earlier this week, on November 13, 2012, the Pennsylvania Superior Court issued a decision in a case where the trial court dismissed a motion for contempt against a non-custodial father and, in the order dealing with the dismissal, improperly modified the existing custody order.  P.H.D. v. R.R.D., 2012 Pa. Super. 246 (2012).

The Father appealed pro se from an order dismissing Mother’s contempt petition.  The existing custody order limited Father’s contact to supervised visitation.  The Father appeared at a band concert at the school which the child attended and the Father saw the child at the concert but made no contact with him and did not approach him or did not speak to him.  Mother filed a contempt petition which was dismissed but in the order dismissing the contempt petition, without any request from Mother, the Court indicated that it was modifying the existing custody order to clarify it and stated that the Father could not appear at places where the child would reasonably be expected to be.

Father asserted that his right to due process was denied and in that no pending petition for clarification or modification of the custody order was before the Court.  Nonetheless, the Court modified and clarified the existing custody order further limiting Father’s rights.  The only thing before the Court was Mother’s contempt petition which did not ask for anything other than a finding of contempt.  In fact, the Court dismissed the contempt petition.

Judge Wecht, writing for the Superior Court, noted that the Court had previously determined that a trial court may not permanently modify a custody order without having a petition for modification before it.  In the case being discussed, the trial court asserted that it did not modify but rather only clarified the existing order but the Superior Court disagreed.  The Uniform Child Custody Jurisdiction and Enforcement Act defines modification as, “[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.”

In this case, the existing custody order indicated that Father was permitted supervised visitation but was to have no contact with the child outside of these visits.  The order dismissing the contempt petition and “clarifying” the existing custody order further adjudicated that the Father “shall not appear at activities or places where the children would reasonably be expected to be at a particular time.”  The Superior Court determined that this new order unquestionably imposed new and severe restrictions on Father and therefore modified the earlier custody order.  In the new order, Father was no longer permitted at school activities, community activities the children would be likely to attend or perhaps even at a restaurant or store the children might be expected to visit.

The trial court did not just modify the custody order; it modified the order without any petition before it.  The trial court acted without notice to Father and without a hearing at which Father could defend himself.  The Superior Court found this to be a violation of Father’s due process rights.

The Superior Court quoted in length from the court’s earlier decision in Langendorfer v. Spearman, 797 A.2d 303 (Pa. Super 2002).

“In the instant case, Mother’s petition for contempt in no way implicates custody, i.e., she did not request any change in custody.  Furthermore, the order to appear received by the parties from the court that scheduled the contempt hearing did not notify the parties that custody was at issue. . .”

“In addition to the foregoing, we emphasize that Father’s due process rights were violated by the actions taken by the court, because Father has no notice that custody would be at issue in the proceedings.”

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