This article was originally published on The Legal Intelligencer by Michael E. Bertin on April 19, 2016. 

A common issue that faces ­family court judges and attorneys is whether a trial court can modify a child custody order when a matter before the court is not pursuant to a petition to modify custody. Oftentimes, this issue will present itself when a case is in court on a petition for contempt of a custody order or a petition to enforce a custody order. In the past, instances have arisen where trial courts have modified child custody orders when the issue before the bench was a contempt action. The line of cases that followed held that a trial court could not modify a child custody order if a petition to modify custody was not before it. Therefore, attorneys trained themselves to file both a petition for contempt and a petition to modify custody to be heard simultaneously in the event the relief sought would be to modify the custody order.

23 Pa.CS Section 5338 provides, in part: “Upon petition, a court may modify a ­custody order to serve the best interest of the child.” The statutory language was the genesis of the theory that a petition to modify was needed to modify a custody order. The roots of same are also based on due process rights. It would be a due process violation for a court to address an issue, such as modifying custody, where a litigant did not have notice that such action could be taken in court.

Beginning with Guadagnino v. Montie, 646 A.2d 1257 (Pa. Super. 1994), and more recently S.W.D. v. S.A.R., 96 A.3rd 396 (Pa. Super. 2014), this issue has evolved. In those cases, the Pennsylvania Superior Court indicated that it is not inappropriate or an error of law for a trial court to modify a custody arrangement even though a specific petition to modify custody was not filed with the court if the petition ­before the court specifically pleaded facts and sought relief to modify custody, thereby putting the opposing party on notice that modifying custody may be an issue before the court. The most recent case of C.A.J. v. D.S.M., ___ A.3d ___, 2016 PA. Super. 40 (Feb. 18, 2016), provided a loud reminder that a trial court can modify a child custody order even though a petition to modify custody is not before the court.

The facts of the C.A.J. case, in part, are as follows: C.A.J. (the mother) and D.S.M. (the father) are the parents of a minor child. Initially, the parties reached an agreement following a conciliation conference where the mother had primary physical custody with the father having partial custody every other weekend during the months of Sept. through May 1. From May 1 through Sept. 1, the parties were to share equal custody on a week on/week off basis, according to the opinion. In the opinion, it reflects that prior to the parties entering into their agreement, the mother relocated a distance from the father in Pennsylvania and the parties appeared to follow the schedule after the mother’s relocation. Approximately two years later, in February 2015, the father filed a petition for contempt that “alleged that mother was not giving child back when it was father’s time.” The father also requested in his petition that he have primary physical custody of the child. However, the father’s petition was a petition for contempt and not a petition to modify. At the hearing on the father’s petition for contempt, “it became apparent … that neither party followed the [custody] order.” According to the opinion, the father requested, at the hearing, that the parties have equal custody on a two-week on/two-week off basis “because for all practical purposes mother and ­father were already sharing time on an equal basis.” At the hearing, “mother testified that she wanted to retain primary physical custody with father having custody every other weekend. She indicated that the 50/50 custody the parties had over the summertime was not working.” Following the hearing, the trial court entered an order consistent with the father’s request and ordered a two-week on/two-week off physical custody schedule.

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At Sebald, Hackwelder, & Knox Law Firm our Child custody attorney, Pat Kelley, has extensive experience in dealing with many different types of child custody cases: from the simplest custody agreement to complex litigation before a trial court. 

Please do not hesitate to call Erie, PA’s skilled child custody attorney to discuss your child custody matter.