If Custody Modification is “On the Table” so is Legal Custody

Fox Rothschild LLP

Fox Rothschild LLP

Pennsylvania codified its custody laws in 1985 and at that time it drew a statutory distinction between decision making power (legal custody) and actual possession of the child (physical custody). In the 1980s there was a kind of revolution in custody law generally. Dads were “stepping up”; wanting more than alternate weekends or every Saturday from 9 to 5. One of the things they routinely got coming out of the revolution was joint legal custody.

In recent years, we have seen the ground shift in this arena. During the pandemic we saw lots of fights break out regarding Covid vaccination. This prompted “other” vaccination disputes and battles over school enrollment, therapy for children and participation in violent sports.

Bailey v. Bailey, a memorandum decision on June 27, is kind of emblematic of how custody can turn to chaos. The Baileys became the parents of C.B. in May 2018. The opinion informs us that in the 52 months since C.B. came into this world there have been 33 court “filings” by her parents concerning how her best interests should be managed. C.B. wasn’t three months old when the first custody claim was filed. The first custody order came 14 months later in October 2019. It was for joint legal and physical custody. In January 2021 mother filed to relocate from Philadelphia to Chester County because of professed safety concerns about the day care where C.B. was enrolled. The Court allowed the relocation but insisted that the child care placement remain unchanged and custody exchanges and medical care had to be done in Philadelphia. In December 2021 mother filed again; this time renewing the request for day care to change as the facility was being investigated by D.H.S.  We are told that there were several hearings before the final order of October 2022. That order directed a new day care, continuing shared physical custody and continued shared legal custody EXCEPT for education decisions. Those were vested in mother for the next two academic years 2023-2024 and 2024-2025. These placements for kindergarten and first grade were assigned to mother and she was no longer constrained to keep the child in a Philadelphia school.

The crux of Father’s appeal to the Superior Court was that the pleadings indicated this was a battle over school enrollment. He acknowledged the court had authority to decide the enrollment but asserted that as he litigated this matter he had no notice, in a due process sense, that he could lose joint legal custody over future education decisions beyond the school placement being tried.

The Superior Court affirmed the trial court. In so doing it distinguished Bailey from the published ruling in P.H.D. v. R.R.D. 56 A.3d 702, 707 (Pa.Super. 2012). In the latter case, the court modified a custody order in a contempt proceeding. The Superior Court held that contempt does not relate to or allow modification of custody arrangements because there is no written notice that anything other than the contempt that is pled and the limited range of statutory remedies allowed.  The Court in Bailey holds that where a modification of custody is the basis for the proceeding, courts are empowered to formulate best interests orders that change physical and legal custody even where the pleading does not request modification of legal custody.

The ruling is rife with problems that may reflect the frustration the court had in dealing with a new custody filing every other month. Start here. Mom is permitted to have her physical custody in Chester County. No problem with that. But the child must have medical treatment in Philadelphia County. Really? How could it be in the best interests of any child needing medical attention to be driven past Paoli, Bryn Mawr and Lankenau Hospitals to reach the ones inside City Line Avenue. Children’s Hospital of Philadelphia has huge operations in King of Prussia and Exton, PA.

Now, we have the current order. The case does not specify where the Court directed the child to be enrolled but there was presumably a full hearing on the options for the court to choose. But having made that selection based on the evidence, the trial court then gives mom a “free throw” for the next two academic years. She has sole right to decide education matters. She could choose the West Fallowfield Christian School. It’s still in Chester County but that school is nearly 50 miles from Philadelphia. Did the court preserve a right to review such a decision? Not that we can see, but the Superior Court affirmed the case anyway. And suppose mom decided to home school the child in one or both of those years. This case appears to have featured a gridiron battle over the merits of the Olde City Day School. Yet the court has decided that mother should have unfettered power to decide where enrollment will be beginning this Fall.

Of course, the next issue will arise should mother choose “any” school other than the one the court selected in October 2022. Because if she does, there will be a change of circumstance by any definition. And since 1988 the Supreme Court has held that the courts may consider a modification of custody at any time it is asserted that the modification is in the child’s best interest. Karis v. Karis, 544 A.2d 1328 (Pa.Supreme); McMillan v. McMillan, 602 A.2d 845 (Pa. 1992). No change in circumstances required. The trial judge will probably be unhappy to see custody filing No. 34 in this young child’s life. But this time, the Court’s problem was self inflicted.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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