A.W. v. M.A.

J-S86028-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

A.W. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant

v.

M.A.

Appellee No. 986 WDA 2016

Appeal from the Order June 14, 2016
In the Court of Common Pleas of Crawford County
Civil Division at No(s): A.D. NO. 2010-372

BEFORE: GANTMAN, P.J., MOULTON, J., and STEVENS, P.J.E.*

MEMORANDUM BY MOULTON, J.: FILED JANUARY 13, 2017

A.W. (“Father”) appeals from the June 14, 2016 order entered in the

Crawford County Court of Common Pleas, which awarded M.A. (“Mother”)

sole legal custody of J.A.W. (“Child”) and reduced the custody time granted

to R.M.H. (“Paternal Grandmother”). We affirm the trial court’s reduction of

Paternal Grandmother’s custody time. However, because Mother did not

request a modification of legal custody, the parties did not address legal

custody at the de novo hearing, and Father was not on notice that legal

custody would be at issue, we vacate that portion of the trial court’s order

awarding Mother sole legal custody.

____________________________________________

*
Former Justice specially assigned to the Superior Court.
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This case has a lengthy history, which we set forth to put in context

the issues raised by this appeal. Child was born in July 2006. Father is

incarcerated at the State Correctional Institution at Fayette (“SCI-Fayette”)

and will not be eligible for release until 2028. See Memorandum & Order,

6/14/16, at 1 (“Mem.”). Father initiated this custody action by filing a

complaint on March 8, 2010. Following custody mediation, on April 28, 2010

the trial court awarded Mother and Father shared legal custody, awarded

Mother primary physical custody, and directed Mother to bring Child to SCI-

Fayette twice per month to visit Father.

Soon after entry of this order, Mother began to experience financial

difficulties that prevented her from bringing Child to visit Father. 1 On

October 25, 2010, Father filed a contempt petition against Mother seeking

enforcement of his right to visitation.2 On November 24, 2010, Mother filed

a petition to modify the custody order, alleging that she could not afford to

____________________________________________

1
Mother filed a petition to modify custody on June 28, 2010.
However, the trial court dismissed this petition without prejudice for failure
to attach the current custody order as mandated by the Crawford County
Local Rules of Civil Procedure.
2
Father filed a second contempt petition on November 4, 2010. The
trial court dismissed this petition for failure to attach the current custody
order as mandated by the Crawford County Local Rules of Civil Procedure.
Further, the trial court noted that the filing was duplicative of the petition
filed on October 25, 2010, but granted Father the right to raise any new
matter in the November 4, 2010 petition at the contempt hearing scheduled
for November 29, 2010.

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bring Child to SCI-Fayette twice per month. On November 29, 2010,

following a contempt hearing,3 the trial court found Mother in contempt of

the custody order and directed that Mother and Paternal Grandmother 4 bring

Child to SCI-Fayette to visit Father on December 9, 2010, and that Mother

bring Child to SCI-Fayette for a visit on December 17, 2010. The trial court

imposed no further sanctions. On December 13, 2010, Paternal

Grandmother filed a petition to intervene, which the trial court granted.

Father filed another contempt petition on December 20, 2010, claiming that

Mother failed to bring Child to the December 9 visit and that Mother’s living

situation had changed.5

After a custody mediation session,6 the trial court issued a new

custody order on February 4, 2011. The trial court modified the previous

order to include Paternal Grandmother in one of the two monthly visits to

Father and ordered that Paternal Grandmother provide transportation and

pay the costs of that visit. On February 14, 2011, Paternal Grandmother
____________________________________________

3
Father participated by video conference.
4
The record is unclear as to how Paternal Grandmother became
subject to the contempt order prior to her petition to intervene.
5
While a hearing on this contempt petition was originally scheduled for
January 24, 2011, it was not held until March 18, 2011, as both Mother and
Paternal Grandmother filed motions for continuances, which the trial court
granted.
6
This custody mediation addressed Mother’s November 24, 2010
modification petition.

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filed a request for a hearing de novo, and Father filed a similar request on

February 17, 2011. The trial court granted these requests and scheduled a

hearing de novo for August 3, 2011.

On February 8, 2011, Father filed another contempt petition, alleging

that, during the custody mediation, Mother agreed to bring Child to visit

Father on January 20 and January 30, 2011, which Mother failed to do. On

March 18, 2011, the trial court heard both outstanding contempt petitions

and, pursuant to an agreement of the parties,7 ordered Mother to take Child

to visit Father on the first Thursday of each month and Paternal

Grandmother to take Child to visit Father on the third Sunday of each

month. Finally, the trial court ordered a series of make-up visits, where

Mother was to take Child to visit Father on the second Thursday of April,

May, and June of 2011.

On May 16, 2011, Father filed a special relief petition, alleging that

Mother was “moving from one place to another every [t]hree[] to [s]ix[]

months[, . . .] jumping from [o]ne[] relationship to another,” and failed to

bring Child for his visit on the second Thursday of April. That same day,

Father also filed a contempt petition, alleging the same facts as the special

relief petition. Father also filed a motion to compel compliance, asking the

trial court to issue an order to compel Mother to comply with upcoming

____________________________________________

7
Father participated by video conference.

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scheduled visits. On May 19, 2011, the trial court dismissed the special

relief petition without a hearing and scheduled a hearing on the contempt

petition and motion to compel on the same date as the de novo hearing,

August 3, 2011. On May 24, 2011, the trial court moved the hearings to

June 29, 2011. However, because of Father’s transportation issues, 8 the

trial court continued the hearings to October 18, 2011.9

The trial court held a de novo hearing on October 18, 2011; Father

was physically present. At the hearing, all parties agreed to a new custody

order, and Father withdrew all of his pending contempt petitions and

motions. Under the new custody order, Mother and Father were again

awarded shared legal custody and Mother was awarded primary physical

custody. However, the trial court also granted Paternal Grandmother

periods of partial physical custody, every other weekend and on alternate

____________________________________________

8
After the trial court moved the de novo hearing to June 29, 2011, on
June 20, 2011, Father filed a motion to transport, asking the trial court to
order the Crawford County Sheriff’s Office to transport him from SCI-Fayette
for the hearing. On June 22, 2011, the trial court denied the motion, noting
that the Sheriff indicated that his office could not arrange transportation on
such short notice. Thus, in order to protect Father’s interests and ability to
participate, the trial court continued the hearing to allow Father to arrange
transportation with the Sheriff or by other means allowing him to participate
in the hearing.
9
On October 7, 2011, Father filed another contempt petition, claiming
that Mother did not bring Child for a make-up visit.

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Fridays,10 as well as temporary physical custody for portions of Thanksgiving

and Christmas, and one week of custody during the summer.11

On June 4, 2015, Mother filed the petition for modification of the

custody order that gave rise to the order at issue in this appeal, seeking

more holiday custody time with Child and informing the trial court that Child

wished to have less custody time with Paternal Grandmother.12 Mother’s

petition for modification did not request a change in legal custody. After a

brief delay13 and a custody mediation, the trial court modified the custody

____________________________________________

10
The trial court granted Paternal Grandmother custody beginning on
Saturday after Child’s bowling or, if there was no bowling or it was summer,
10:00 a.m. Saturday until Sunday at 7:00 p.m. or, if the Paternal
Grandmother took the child to visit Father on Sunday, whenever the Child
returned to Crawford County.
11
Between December 2011 and December 2013, Father and Paternal
Grandmother each filed a contempt petition. The issues in these contempt
petitions are not germane to our review.
12
Mother alleged the following in her modification petition:

[Paternal Grandmother] feels that the only Holidays
that we observe for the Court Order is Thanksgiving and
Christmas. Holidays need to be specified in our Order.
Also, [Child] wishes to speak to the Courts about the
visitations times with the Paternal Grandmother, as he
wishes to have them lessened.

Mother’s Modification Pet., 6/14/15.
13
Mother’s petition to modify contained an averment that a person
living in Mother’s household, J.M., had been convicted of driving under the
influence and assault. In accordance with 23 Pa.C.S. § 5329, Mother filed a
motion to schedule an evaluation hearing before the judicial hearing officer,
(Footnote Continued Next Page)

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order on September 2, 2015. The order clarified the custody schedule by

excluding Paternal Grandmother’s one week of summer custody from the

weeks of Memorial Day, Labor Day, or Independence Day, and provided

Paternal Grandmother with two more hours on Thanksgiving and Christmas.

On September 21, 2015, Mother requested a de novo hearing, which

the court held on March 23, 2016; Father participated by video conference.

On June 14, 2016, the court issued a memorandum and entered the custody

order now on appeal. The trial court awarded Mother sole legal custody of

Child, and reduced Paternal Grandmother’s weekend custody.14 The trial

court also decreased Paternal Grandmother’s custody time on Thanksgiving

and Christmas, granting custody between noon and 5:00 p.m. Paternal

Grandmother’s one week of summer custody was also removed and replaced

with extended custody during the summer on the second Saturday of the

month until Sunday at 6:00 p.m.
_______________________
(Footnote Continued)

which the trial court granted on June 26, 2015. After a hearing on July 16,
2015, the trial court found, based on the recommendation of the hearing
officer, that J.M. did not pose a threat to the child and allowed mediation to
proceed.
14
The trial court awarded Paternal Grandmother custody between
10:00 a.m. and 6:00 p.m. on the second and fourth Saturday of each
month. If, however, Paternal Grandmother notifies Mother on the second
Saturday that she intends to take Child to see his Father on the fourth
weekend, then the period of custody on the fourth weekend extends to
Sunday when Child returns to Crawford County. Paternal Grandmother
forfeits her second Saturday of custody if she fails to return the child on
Saturday at 6:00 p.m. unless he is visiting his Father.

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Father filed a timely appeal on July 1, 2016. After Father filed his

statement of matter complained of on appeal pursuant to Pennsylvania Rule

of Appellate Procedure 1925 (”Rule 1925”), the trial court filed a Rule 1925

opinion, which adopted in full its June 14, 2016 memorandum.

Father raises the following issues on appeal:15

1. Did the lower court abuse its discretion when it stripped
[Father] of his custody rights?

2. Did the lower court discriminate and abuse its discretion
when it stripped [Paternal Grandmother] of everything it
had granted her previously and when it ruled [Paternal
Grandmother] is to bare [sic] the responsibility and cost
for transportation of the child to see his father, which is
the responsibility of [Mother]?

Father’s Br. at 3 (suggested answers omitted).

We consider Father’s issues mindful of our well-settled standard of

review.

We review a trial court’s determination in a custody case
for an abuse of discretion, and our scope of review is
broad. Because we cannot make independent factual
determinations, we must accept the findings of the trial
court that are supported by the evidence. We defer to the
trial judge regarding credibility and the weight of the
evidence. The trial judge’s deductions or inferences from
its factual findings, however, do not bind this Court. We
may reject the trial court's conclusions only if they involve
an error of law or are unreasonable in light of its factual
findings.

____________________________________________

15
As of the date of this memorandum, Mother and Paternal
Grandmother had not submitted briefs to this Court.

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S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa.Super. 2014) (internal citations

omitted).

When a trial court orders a form of custody, the best interest of the

child is paramount. See J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa.Super.

2011). The trial court must consider all 17 factors enumerated in section

5328 of the Child Custody Act.16 See S.W.D., 96 A.3d at 401. Further,

____________________________________________

16
Section 5328 of the Child Custody Act provides:

In ordering any form of custody, the court shall determine
the best interest of the child by considering all relevant
factors, giving weighted consideration to those factors
which affect the safety of the child, including the following:

(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and
another party.
(2) The present and past abuse committed by a party or
member of the party's household, whether there is a
continued risk of harm to the child or an abused party and
which party can better provide adequate physical
safeguards and supervision of the child.
(2.1) The information set forth in section 5329.1(a)
(relating to consideration of child abuse and involvement
with protective services).
(3) The parental duties performed by each party on behalf
of the child.
(4) The need for stability and continuity in the child's
education, family life and community life.
(5) The availability of extended family.
(6) The child's sibling relationships.
(7) The well-reasoned preference of the child, based on
the child's maturity and judgment.
(8) The attempts of a parent to turn the child against the
other parent, except in cases of domestic violence where
(Footnote Continued Next Page)

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when awarding partial custody to grandparents who have standing under 23

Pa.C.S. § 5325(2), the trial court must consider “(i) the amount of personal

contact between the child and the party prior to the filing of the action; (ii)

whether the award interferes with any parent-child relationship; and (iii)

whether the award is in the best interest of the child.” 23 Pa.C.S. §

5328(c)(1).

Father argues that the trial court inappropriately awarded Mother sole

legal custody of Child. According to Father, the trial court erred as a matter

_______________________
(Footnote Continued)

reasonable safety measures are necessary to protect the
child from harm.
(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child
adequate for the child's emotional needs.
(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and
special needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party's availability to care for the child or ability
to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with one
another. A party's effort to protect a child from abuse by
another party is not evidence of unwillingness or inability
to cooperate with that party.
(14) The history of drug or alcohol abuse of a party or
member of a party's household.
(15) The mental and physical condition of a party or
member of a party's household.
(16) Any other relevant factor.

23 Pa.C.S. § 5328(a).

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of law and abused its discretion by addressing legal custody sua sponte, as

none of the parties had requested a change in legal custody. Father’s Br. at

11. Father also argues that this award “forecloses any input the father may

provide in [Child’s] life and give[s] [F]ather authority in name only, . . .

depriv[ing] him of a legal remedy because he was already awarded shared

legal custody previously.” Id. (citation omitted).

We conclude that the court erred as a matter of law by modifying legal

custody without any request before it and without providing Father of any

notice or opportunity to be heard on that issue.

In P.H.D. v. R.R.D., 56 A.3d 702 (Pa.Super. 2012), we addressed an

analogous situation in which a mother filed a contempt petition, alleging that

Father had violated the order “to have no contact with the children other

than supervised visits” by appearing at one child’s band concert. Id. at 704.

At the hearing on the contempt petition, the trial court, without request,

“clarified” the child custody order by explaining that the father was “not to

appear at places where the children would be reasonably expected to be.”

Id. at 704. Father appealed, arguing that the trial court abused its

discretion and/or erred as a matter of law “by . . . modifying the custody

order notwithstanding its failure to conduct a modification hearing.” Id. at

705-06.

We concluded that the trial court’s “clarification” was a modification of

the custody order and that modification denied the father his due process

rights because he was never given notice that custody would be at issue:

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It cannot be gainsaid that these purported no-go
zones were not contained in the previous custody
arrangement, which was already highly restrictive. Under
the trial court's new “clarification,” Father is no longer
permitted to attend school activities, community activities
that Children will likely attend, or even restaurants and
stores that Children might visit. This is a significant
departure from the previous order that limited Father’s
time spent with Children to supervised visits. Most
important, the parties were not on notice that such a
breathtaking set of restrictions was sought, nor that it
could be ordered, particularly in a scenario where the
contempt petition is itself denied.

The trial court not only modified the custody order.
It did so without any modification petition. It did so
without notice and a hearing tailored specifically to custody
modification. It denied Father his due process rights. Our
decision in Langendorfer [v. Spearman, 797 A.2d 303
(Pa.Super. 2003),] is instructive. In that case, the mother
filed a contempt petition alleging that the father willfully
violated the custody order. In a subsequent order, the
trial court found the father in contempt, granted the
mother sole legal and primary physical custody, and
restricted the father's visitation with the children to
supervised visits. We found that the father’s due process
rights were violated because he had no notice that custody
was at issue.

Id. at 707 (emphasis in original) (internal citations omitted). In arriving at

this conclusion, we relied extensively on Langendorfer, stating:

In addition to the foregoing, we emphasize that
Father’s due process rights were violated by the actions
taken by the court, because Father had no notice that
custody would be at issue in the proceedings. “Notice, in
our adversarial process, ensures that each party is
provided adequate opportunity to prepare and thereafter
properly advocate its position, ultimately exposing all
relevant factors from which the finder of fact may make an
informed judgment.” [Choplosky v. Choplosky, 400
Pa.Super. 590, 584 A.2d 340, 342 (1990).] Without notice
to the parties that custody was at issue, the trial court
could not “assume that the parties ha[d] either sufficiently

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exposed the relevant facts or properly argued their
significance. Consequently neither we nor the trial court
can make an informed, yet quintessentially crucial
judgment as to whether it was in the best interests of the
[child] involved to give sole legal [and physical] custody to
the mother.” Id. at 343.

Id. at 707-08 (quoting Langendorfer, 797 A.2d at 308-09) (footnotes

omitted). Based on Langendorfer, we concluded that “the trial court

abused its discretion in altering the terms of custody when a petition

requesting such relief was not before it,” because the father was unaware

that custody was at issue and therefore “had no opportunity to prepare for a

modification hearing.” Id. at 708. In light of this abuse of discretion, we

vacated the trial court’s custody modification and instructed the parties that

if either one of them sought modification, “that party must petition the court

accordingly” and, “if the court schedule[d] a hearing on the modification

petition, the opposing party is on notice that custody modification will be at

issue.” Id.

The principles of notice elucidated in P.H.D. and Langendorfer are

applicable to this case. While unlike those cases, Mother did file a petition

for modification, she sought only to clarify the physical custody schedule and

reduce Paternal Grandmother’s custody time. Mother did not seek a change

in legal custody of Child either by petition or orally before the trial court. In

fact, the first reference in the record to a change in Father’s legal custody

appeared in the trial court’s memorandum announcing that change. See

Mem. at 11. Like the appellants in P.H.D. and Langendorfer, who had no

notice that custody modification was a matter before the court during their

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contempt hearings, Father had no advance notice that his legal custody

would be an issue before the court and no time to develop any legal or

factual arguments. Father’s loss of legal custody without any ability to

defend his right to share in “major decisions on behalf of . . . [C]hild,

including, but not limited to, medical, religious, and educational decisions,”

23 Pa.C.S. § 5322, offends our traditional notions of due process, which, at

a minimum, require notice and an opportunity to be heard before stripping

parents of their fundamental liberty “interest . . . in the care, custody, and

control of their children.” Troxel v. Granville, 530 U.S. 57, 65 (2000)

(plurality) (citations omitted).

Further, as we explained in Langendorfer, absent notice to the

parties that legal custody was at issue, the trial court could not “assume that

the parties ha[d] either sufficiently exposed the relevant facts or properly

argued their significance.” 797 A.2d at 309 (quoting Choplosky, 584 A.2d

at 342). Thus, neither “we nor the trial court can make an informed, yet

quintessentially crucial judgment as to whether it was in the best interests”

of Child to award Mother sole legal custody. Choplosky, 584 A.2d at 343.

Here, the trial court provided no notice that legal custody would be subject

to review and issued a decision without giving the parties a chance to

explain their positions, let alone present evidence or argument, with respect

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to Father’s legal custody rights.17 Such sua sponte determinations of legal

custody rights that bear on the child’s medical, religious, and educational

needs fail to meet the minimum standards of due process.18

Next, we address Father’s contention that the trial court abused its

discretion by decreasing Paternal Grandmother’s custody time.19 According

to Father, Paternal Grandmother “lost significant custody rights to [Child],”

which were not “excessive or burdensome such that it interfered with the

parent child relationship.” Father’s Br. at 15-16 (citing Johnson v.

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17
On this record, which shows that neither Mother nor the trial court
provided Father any notice that legal custody would be at issue, we decline
to articulate the minimum requirements for adequate notice.
18
Our decision today in no way limits the power of trial courts to
fashion appropriate custody orders when all parties are on notice that
physical and/or legal custody is at issue. The Child Custody Act provides
trial courts with a great deal of flexibility to award different types of custody
so long as they consider the factors set forth under section 5328 in the best
interests of the child. See 23 Pa.C.S. § 5323; D.K.D. v. A.L.C., 141 A.3d
566, 572 (Pa.Super. 2016) (“The primary concern in any custody case is the
best interests of the child.”).
19
Father may challenge the reduction of Paternal Grandmother’s
custody time because Father’s visitation time hinges on Paternal
Grandmother’s ability to take custody of Child on weekends. Therefore, a
reduction in Paternal Grandmother’s custody time may have an adverse
effect on Father’s visitation and, for purposes of this appeal, he is an
“aggrieved party” within the definition of Pa.R.A.P. 501. See In re J.G.,
984 A.2d 541, 546 (Pa.Super. 2009) (“This Court has consistently held that
for purposes of Pa.R.A.P. 501, ‘[a] party is “aggrieved” when the party has
been adversely affected by the decision from which the appeal is taken.’”)
(quoting Ratti v. Wheeling Pittsburgh Steel Corp., 758 A.2d 695, 700
(Pa.Super. 2000)).

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Diesinger, 589 A.2d 1160 (Pa.Super. 1991)). Father argues that “[t]he

trial court’s findings are not supported by the record, and are based on the

mother’s dislike of the grandmother.” Id. at 16. He notes that Paternal

Grandmother wanted to know more about Child’s mental health issues and

how to help with those issues, and that Paternal Grandmother “has

demonstrated her love and affection for this child by her words and her

actions.” Id. Father also addresses a concern that Paternal Grandmother’s

reduction in custody time will “result in a more constrained visitation

schedule” with Father. Id. at 17.

The trial court did not abuse its discretion when it reduced Paternal

Grandmother’s custody time. In its memorandum, the trial court discussed

both the custody factors under section 5328(a) and the facts relevant to

grandparent partial custody under section 5328(c)(1). See Mem. at 7-11.

The trial court concluded that “child wants to continue to spend most of his

time with his mother, to see his father, and to spend less time with his

paternal grandmother and his testimony would seem to suggest that all of

that would be appropriate.” Id. at 9. In the trial court’s interview, Child

stated that he wanted to spend less time with Paternal Grandmother. N.T.

Modification H’rg, 3/23/16, at 58. Child also stated that he dislikes the work

Paternal Grandmother has him perform during his weeklong summer visit,

including moving junk and burning leaves and other garbage, which irritates

his asthma. Id. at 53-55. In addition, Mother testified that Child

experiences a noticeable increase in anxiety, including his Tourette’s

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Syndrome tics, before and after his visits with Paternal Grandmother. Id. at

9-10.

The trial court also found that Paternal Grandmother’s custody

“interferes somewhat with the relationship of the child with the mother and

that [Paternal Grandmother’s custody] is not in the best interest of the child

since it takes considerable time from the mother/child relationship.” Mem.

at 11. The record supports this finding. The trial court discussed Mother’s

role as the “stability in the child’s life since . . . [F]ather’s incarcerat[ion],”

her ability to attend to Child’s daily needs, and her availability to care for

Child. Id. at 8-9. Further, the trial court considered Paternal

Grandmother’s custody time as a means of assuring visitation and contact

with Father, concluding that “it is in the best interest of the child to have

some continuing consistent contact with the paternal grandmother, both for

contact with her and for her aid in making sure that [Child] has some

contact with his father in prison.” See id. at 10. We conclude that the trial

court appropriately exercised its discretion in reducing a portion of Paternal

Grandmother’s custody time while ensuring that Paternal Grandmother

continues to receive appropriate time with Child, not only for herself but also

to visit Father.20
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20
In his brief, Father also asserts that the trial court abused its
discretion in ordering Paternal Grandmother to pay the transportation costs
associated with visiting Father at SCI-Fayette. According to Father, Mother
should bear this cost because she “should also be responsible to ensure the
(Footnote Continued Next Page)

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Order affirmed in part and vacated in part. Jurisdiction relinquished.

President Judge Gantman and President Judge Emeritus Stevens,

concur in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/13/2017

_______________________
(Footnote Continued)

child visits . . . . [F]ather in prison, since it is in fact in the best interest of
the child.” We disagree. The trial court found, as supported by the record,
that Paternal Grandmother’s custody is primarily a means to ensure that
Child’s visits with Father continue. Further, the trial court noted that Mother
is already giving up custody time to allow Paternal Grandmother to bring
Child to see Father. Considering Mother’s prior history of financial troubles
that prevented her from bringing Child to SCI-Fayette and Paternal
Grandmother’s voluntary intervention to not only have custody of Child but
also ensure that Child visits Father, we discern no abuse of discretion in the
trial court’s decision to impose transportation costs to SCI-Fayette on
Paternal Grandmother.

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