S.T. v. R.W.

J-S20012-18

2018 PA Super 192

S.T. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
R.W. : No. 1748 MDA 2017

Appeal from the Order entered October 10, 2017,
in the Court of Common Pleas of Schuylkill County,
Civil Division at No(s): S-1652-2008.

BEFORE: GANTMAN, P.J., OTT, J., and KUNSELMAN, J.

OPINION BY KUNSELMAN, J.: FILED JUNE 29, 2018

In this matter, we decide whether the trial court afforded sufficient due

process to an incarcerated parent who seeks contact with her child. In

reaching our conclusion, we determine what forms of custody incarcerated

parents retain under the 2011 revisions to Pennsylvania Custody Law.1 And

finally, we decide whether the trial court properly analyzed the statutory

factors when considering whether to allow an incarcerated parent to retain

any form of physical or legal custody.

An incarcerated Mother, S.T., appeals the order denying her request for

telephone communication with the parties’ nine-year-old daughter. The trial

court conducted an ex parte custody hearing with Father, R.W., without

affording Mother either notice that she could request to be present, or a

meaningful opportunity to be heard. The trial court then misapplied the
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1 23 Pa.C.S.A. §§ 5321 – 5340.
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current Custody Law. We hold that the court’s procedure constituted a

violation of Mother’s rights to due process. We vacate the order and remand

for a new hearing.

The pertinent facts are these: The parties are parents to a nine-year-

old daughter. Father resides with the daughter in Schuylkill County where he

is a corrections officer at State Corrections Institute (“SCI”) Mahanoy. At the

time of the hearing, Mother was incarcerated approximately 90 minutes away

at SCI Muncy in Lycoming County.2 She is a former physician who is serving

a prison term of 5 to 10 years for crimes relating to her practice.3

Although the exact dates remain somewhat disputed, it is uncontested

that Mother had not seen, nor spoken with her daughter since before she

began serving her sentence in March 2014. See N.T., 8/10/17, at 11-12; see

also Mother’s Brief, at 6. Lately, however, Father testified that he has

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2We observe from the cover page of her brief that Mother is apparently now
an inmate at SCI Cambridge Springs in Crawford County, which is
approximately five hours away from the Schulykill County Courthouse.

3 Mother was convicted of the following crimes: Fraudulent insurance claims
(relating to billing services not rendered); Theft by deception (relating to
billing for services not rendered); Corrupt organizations relating to billing for
services not rendered; Perjury (relating to testimony given in family court
matters); Endangering the welfare of children (relating to providing a non-
subject seventeen-year-old daughter with Xanax); Drug delivery resulting in
death (relating to providing a prescription for pain medication); Sale to
dependent person (relating to providing a prescription for pain medication);
and Refusal to Keep Records Required by Act.

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encouraged and facilitated written correspondence between the child and

Mother. Id., at 13. Mother’s earliest possible release is March 2019.

In August 2017, Mother filed a “Motion for Contact via Telephone and

Correspondence.” Upon receiving this pleading, the trial court entered an

order scheduling a hearing on the matter. The order notified Mother of the

time, place and location of the hearing, but limited Mother’s participation in

the hearing to a mere written statement. The court ordered Mother to provide

in a written statement the following information: a) her place of incarceration;

b) her crimes and their circumstances; c) date of incarceration; d) the

sentencing orders; e) the earliest possible date of her release; f) her requested

involvement regarding frequency, times and circumstances of her requested

telephone contact and correspondence; g) her assertions as to how her

proposed contact will serve the best interests of the child; and h) any other

pertinent material Mother feels will support her request.

Critically, the trial court did not notify Mother that she had a right to

request to be present at the hearing. In the interim, the court sua sponte

suspended Mother’s physical custody. The court made no arrangements for

her transportation to the hearing, nor for her participation by telephone or

video conference. Mother complied with the court’s order, and submitted a

pre-trial letter with the information the court requested.

On October 10, 2017, the court held what can only be called an ex parte

hearing, which lasted a matter of minutes judging by the length of the certified

transcript. Father’s counsel began with a brief summary before eliciting

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Father’s testimony through direct examination. The court engaged in a brief

interrogation of Father before the matter was adjourned. Neither Father’s

counsel nor the court addressed Mother’s statement except to acknowledge

its existence. The court did not interview the child.

On the same day, the court issued a brief opinion and order. The court

cited to both repealed custody statutes4 and corresponding case law. See Trial

Court Opinion (“T.C.O.”), 10/10/17, at 2-3. The court also included an

analysis of the current custody statute’s 16 enumerated factors. See 23

Pa.C.S.A. §5328(a). Although neither parent sought to modify legal custody,

the court awarded sole legal custody to Father after it determined that Mother

was “not able to participate effectively in parenting decisions.” See T.C.O.,

at 3. The court denied Mother’s request for telephone contact based on

Father’s testimony that telephone access for prisoners is irregular and that

the child would become upset if Mother failed to call at a prearranged time.

Although it denied Mother’s request for telephone communication, the trial

court allowed Mother to continue to send letters to the parties’ daughter.

On appeal, Mother presents this question, which we restate verbatim:

Did the pro se Appellant [Mother] suffer extreme
prejudice through the deprivation of due process rights
when she was prevented from fully participating in a
custody hearing where [the trial court] ordered her
participation to be limited to entering a pre-hearing
written statement to support her “Motion for Contact”
with minor child, but permitted [Father] to participate

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4 23 Pa.C.S.A. §§ 5301 -5315.

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with testimony, which resulted in an unfair and unjust
ruling and a loss of parental rights?

Mother’s Brief, at 4.

Like Father, we construe Mother’s presented question as two discrete

issues. See Father’s Brief, at 7. First, Mother challenges the trial court’s

procedure and substantive decision that resulted in the denial of her request

for telephone contact. Second, Mother challenges the procedure and

substantive decision that resulted in her loss of shared legal custody.5

Our scope and standard of review of child custody orders are settled:

In reviewing a custody order, our scope is of the broadest
type and our standard is abuse of discretion. We must
accept findings of the trial court that are supported by
competent evidence of record, as our role does not include
making independent factual determinations. In addition,
with regard to issues of credibility and weight of the
evidence, we must defer to the presiding trial judge who
viewed and assessed the witnesses first-hand. However, we
are not bound by the trial court’s deductions or inferences
from its factual findings. Ultimately, the test is whether the
trial court’s conclusions are unreasonable as shown by the
evidence of record. We may reject the conclusions of the
trial court only if they involve an error of law, or are
unreasonable in light of the sustainable findings of the trial
court.

C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).

Our review differs when an appellant presents a due process challenge:

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5 Although Father’s brief is silent as to Mother’s loss of shared legal custody,
we find Mother preserved this issue when she articulated her “loss of parental
rights.” See Mother’s Brief, at 4.

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A question regarding whether a due process violation
occurred is a question of law for which the standard of
review is de novo and the scope of review is plenary.

Commonwealth v. Tejada, 161 A.3d 313 (Pa. Super 2017) (quoting

Commonwealth v. Smith, 131 A.3d 467, 472 (Pa. 2015).

I.

In custody hearings, parents have at stake fundamental rights: namely,

the right to make decisions concerning the care, custody, and control of their

child. See Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054 (2000); see

also U.S.C.A. Const. Amend. 5, 14; and see also generally D.P. v. G.J.P.,

146 A.3d 204 (Pa. 2016).

Due process must be afforded to parents to safeguard these

constitutional rights. “Formal notice and an opportunity to be heard are

fundamental components of due process when a person may be deprived in a

legal proceeding of a liberty interest, such as physical freedom, or a parent’s

custody of her child.” J.M. v. K.W., 164 A.3d 1260; 1268 (Pa. Super. 2017)

(en banc) (quoting Everett v. Parker, 889 A.2d 578, 580 (Pa. Super. 2005)

(emphasis added). It is well settled that “procedural due process requires, at

its core, adequate notice, opportunity to be heard, and the chance to defend

oneself before a fair and impartial tribunal having jurisdiction over the case.”

Id., at n. 5 (citing Everett v. Parker, 889 A.2d 578, 580 (Pa. Super. 2005);

see also Garr v. Peters, 773 A.2d 183, 191 (Pa. Super. 2001). “Due process

is flexible and calls for such procedural protections as the situation demands.”

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See, e.g., In re Adoption of Dale A., II, 683 A.2d 297, 300 (Pa. Super.

1996) (citation omitted).

Having established that both formal notice and an opportunity to be

heard are due protections, we decide what the situation demands when a

parent is incarcerated. In Vanaman v. Cowgill, 526 A.2d 1226 (Pa. Super.

1987), we found that the trial court deprived an incarcerated father of his due

process rights in a custody hearing initiated by the mother. The father could

not attend the hearing while in prison, but the trial court held an ex parte

hearing anyway. The resulting custody order similarly denied the incarcerated

parent any visitation. In defending its decision to proceed with the hearing,

the trial court reasoned that father, upon receiving notice of the hearing date,

had failed to explain or excuse the absence of counsel or to request a

continuance. On appeal, we stated that the trial court should have done more,

and we explained why:

This principle, while perfectly sound in regard to persons at
liberty to protect their own interests, requires considerable
revision in the context of this and similar cases. The fact of
[a party's] incarceration places an obligation on the
court to safeguard his due process rights, a responsibility
here ignored.

Although we have uncovered neither procedural rule nor
appellate authority which speaks directly to his issue, lower
courts have in the past concluded that not only notice of a
(civil) hearing is due an imprisoned person, but also
specific advisement of his right to attend. See Jones v.
Jones, 1 Pa. D. & C.3d 401 (1974) (citations
omitted)[(emphasis added)]. The court in Jones prescribed
a method of implementing exercise of this right based on
the issuance of a writ of habeas corpus ad testificandum.
[…].

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The steps listed in Jones, although composed in reference
to a divorce hearing, are equally applicable here: where the
respondent/defendant in an action is incarcerated, notice
must contain, as well as the usual particulars of the hearing,
the statement that respondent/defendant may, if he wishes
to attend, request the court by means of a habeas petition
and writ to make arrangements for transportation to and
presence at the hearing. Such a request must be made
within 10 days prior to the scheduled date.

***

In situations such as the one before us, not only are the
rights of the prisoner/respondent vulnerable to
infringement, but those of the child as well since a
determination of the child's best interests must have its
basis in information. [The father's] rights were clearly
ignored; whether his child's have been violated as well
remains yet to be seen.

Vanaman, 526 A.2d at 1227 (emphasis added). In that case, we remanded

for a new custody hearing.

In Sullivan v. Shaw 650 A.2d 882, 884 (Pa. Super. 1994), we stated

more succinctly that “[i]ncarcerated prisoners who petition the court for

visitation rights are entitled to a hearing, to notice of this hearing, and to

notice of their right to request that they be present at the hearing, by means

of a writ of habeas corpus ad testificandum.” Id. (Citing Vanaman v.

Cowgill, 526 A.2d. 1226 (Pa. Super. 1987)). This holding has since been

codified in both the Pennsylvania Rules of Civil Procedure and in the Schuylkill

County Local Rules of Procedure.6

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6The note to Pa.R.C.P. 1930.4(a)(“Service of Original Process in Domestic
Relations Matters”) provides: “Original process served on an incarcerated

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In the case at bar, the trial court set a hearing on the issue and made

Mother aware of the date, time and location of the hearing. However, the trial

court did not provide Mother with notice of her right to request that she be

present at the hearing via a writ of habeas corpus ad testificandum. The trial

court’s failure to provide Mother with this notice is reversible error.

We recognize that a trial court may grant or deny a writ for habeas

corpus ad testifcandum in light of the factors set forth in Salemo v. Salemo,

554 A.2d 563 (Pa. Super. 1989). See Pa.R.C.P. 1930.4. But whether a writ

was appropriate in this case is not an issue. Mother was never told of her

____________________________________________

person in a domestic relations action must also include notice of any hearing
in such action and specific notice of the incarcerated [parent’s] right to apply
to the court for a writ of habeas corpus ad testificandum.”

Schulykill County Local Rule 15.4C (“Involuntary Termination of Parental
Rights - Incarcerated Parent”)(relating to orphans’ court rules) requires the
presence of an incarcerated parent at a court proceeding involving the
termination of their parental rights. This rule provides:

Where the natural parent is incarcerated, a petition for
involuntary termination of that parent’s parental rights must
include a statement in the proposed Preliminary Order,
submitted with the petition setting the hearing date, that if
the natural parent desires to contest the petition, the
parent may do so by requesting the issuance of a writ
of habeas corpus ad testificandum. […]

Schuylkill County Local Rule 15.4C (emphasis added). Notably, this
procedure mirrors the service procedure provided Pa.R.C.P. 1930.4(a).
Although this local rule applies specifically to termination of parental rights
cases, we see no reason to distinguish the due process rights of incarcerated
parents in those cases from parents involved in custody actions.

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legal right to seek such a writ. Additionally, as we discuss below, the trial

court also failed to provide Mother with a meaningful opportunity to be heard.

II.

“Due process is flexible and calls for such procedural protections as the

situation demands.” Sullivan, 650 A.2d at 884 (citing Mathews v. Eldridge,

424 U.S. 319, 334 (1976). “Mathews allows the government to tailor the

amount of procedural protection to the situation by balancing the marginal

value of additional protections against the marginal costs such additional

protections would impose on the government.” Id. (Emphasis added).

In Sullivan, a father who was incarcerated near Pittsburgh sought

visitation with his daughter who lived in Philadelphia. The trial court properly

provided him a hearing, notice of the hearing, and notice of his right to request

be at the hearing. Id. When authorities failed to produce the father, the trial

court conducted the hearing without him. Id. Although we found the court’s

decision erroneous, we articulated that incarcerated parents did not have an

absolute right to be physically present at the hearing. Id. In other words, the

court does not have to grant to writ of habeas corpus ad testificandum,

but an incarcerated parent must still be provided an opportunity to be heard.

In 1994, we posited that transporting an incarcerated parent across the

state imposed a considerable burden upon the Commonwealth. One solution,

we surmised at that time, was to allow the incarcerated parent to file “an

informal brief with the trial court” where the prisoner-parent could offer her

“solution to the problems of visitation.” Id., at 885. Then if the prisoner-

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parent could offer no reasonable means of overcoming the “obstacles of

visitation,” we reasoned that the trial could dismiss the petition. Id. We

concluded that “allowing the trial court to make such a preliminary

determination upon the prisoner’s written submissions best conserved the

Commonwealth’s resources without increasing the risk of erroneous

deprivation.” Id. The “informal brief” in Sullivan is substantially the same as

the “written statement” the trial court allowed in the instant case.

But times have changed. Sullivan, a case nearly a quarter-century old,

predates revisions to both the rules of civil procedure and the substantive

custody law. Now we must recalibrate the due process balancing and refit

the tailoring of procedural protections. Two and a half decades and a

technological revolution after we decided Sullivan, communication via

telephone and video conferencing is considerably less expensive and far more

readily accessible. The choice is no longer between physical transportation

and exorbitant long distance rates across the state. We cannot say, with

current technology, that due process is satisfied by allowing an “informal brief”

or “written statement” from an incarcerated parent. In incarceration cases,

telephone or video testimony should now be the practice standard, not the

exception.

Notably, Sullivan was decided one month before the adoption of

Pennsylvania Rule of Civil Procedure 1930.3. Rule 1930.3 gives courts a

means to accommodate any party or witness who may not be available to

attend a hearing in person. The rule provides: “With the approval of the court

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upon good cause shown, a party or witness may be deposed or testify by

telephone, audiovisual or other electronic means at a designated location in

all domestic relations matters.” Pa.R.C.P. 1930.3. Neither telephonic, nor

audiovisual, nor electronic communication was even mentioned by the court

in Sullivan. Rule 1930.3 now provides courts with a previously unavailable

option.

The outdated solution in Sullivan is further magnified by the changes

our legislature made to the Custody Law. The “informal brief” allowed in

Sullivan is all the more problematic because it intertwined proper procedural

due process considerations with the repealed substantive custody

considerations. Sullivan, 650 A.2d at 885.

The informal pre-trial brief sought to kill two birds with one stone:

procedural matters and substantive matters. Procedurally speaking, the brief

satisfied the due process balancing because it provided the incarcerated

parent with the opportunity to be heard while simultaneously eliminating

transportation costs – as we noted directly above, those burdens on the

Commonwealth have now been virtually negated. Substantively speaking, the

brief outlined the reasons why the obstacle of incarceration could be overcome

(i.e., why visitation is in the child’s best interests). In other words, the

“informal brief solution” imposed on a petitioning incarcerated parent the

burden to make a prima facie showing that visitation would be feasible and in

the child’s best interests before the parent was entitled to a full custody

hearing. Whatever the statutory basis was for this holding – presumably §

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5302 (“Visitation”) – that basis has been repealed by our legislature. Nothing

in our redrafted Custody Law allows for this procedure.

An “informal brief” or “written statement” submitted prior to the trial

cannot possibly equate a meaningful opportunity to be heard under the

current state of our substantive and procedural laws.

Both notice and an opportunity to be heard must be
afforded at a meaningful time in a meaningful
manner. As previous panels have explained: notice in our
adversarial process, ensures that each party is provided
adequate opportunity to prepare and thereafter advocate its
position, ultimately exposing all relevant factors from
which the finder of fact may make an informed judgment.

Everett v. Parker, 889 A.2d 578, 580 (Pa. Super. 2005) (internal citations

and quotation marks omitted) (emphasis added). Recently, we confirmed

procedural due process requires not only adequate notice and an opportunity

to be heard, but also “the chance to defend oneself before a fair and

impartial tribunal having jurisdiction over the case.’” J.M. v. K.W., 164 A.3d

1260, n. 5 (Pa. Super. 2017) (en banc) (citing Everett, 889 A.2d at 580)

(emphasis added).

Due process mandates that an incarcerated parent have a meaningful

opportunity to expose all the relevant factors in a custody analysis. Under

the revised Custody Law, incarcerated parents do not need to make a prima

facie showing that contact with the child is feasible based on those custody

factors relating to logistics. Parties cannot fully address all the relevant factors

if trial courts preliminarily disqualify them on certain factors before a hearing

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even occurs. Additionally, parties cannot expose all the relevant factors if

they cannot advocate for themselves in real time, i.e., cross-examine

witnesses of the other party and respond to arguments.

In the instant matter, the trial court’s procedure afforded Mother no

meaningful opportunity to advocate for herself during the hearing. She could

not respond, nor cross-examine Father’s points. She could not call witnesses,

nor introduce evidence. She could not make objections.

For illustration, the trial court accepted all of Father’s testimony

regarding his employment experience with prisoner visitation at SCI Mahanoy

– namely its unsavory characteristics and the irregularity of telephone access.

Because of the court’s limiting order, Mother did not have an opportunity to

counter Father’s assertions and describe the visitation procedures and

conditions at her facility. We cannot say the defect lies with trial court’s

scheduling order, which outlined for Mother what information she should

submit to the court. Nor can we blame Mother for a written statement lacking

in this detail. No matter how specific Mother made – or could have made –

her pre-trial written statement, she could never fully defend her position if

Father opposed it. Moreover, she could never fully advocate for her position

if she could not oppose Father’s. But now that an incarcerated parent has the

ability to advocate in real time, at a comparatively minimal cost on the courts,

we conclude that the same is necessary to guarantee a meaningful opportunity

to be heard.

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We recognize that our decision may involve practical and logistical

concerns. For example, a prisoner’s appearance may be delayed or cut short

due to the availability of prison staff or equipment – though we note that our

courts are already making these accommodations for prisoners in criminal and

juvenile proceedings. Whatever inconvenience this decision may cause, it is

negligible compared to the logistical burdens the trial courts faced in the time

of Sullivan.

III.

The changes in our substantive custody laws mandate that an

incarcerated parent be given more say than a letter to the court. Unlike when

we decided Sullivan, today we do not consider, as a threshold question, the

vague notion whether visitation with an incarcerated parent would be

“impractical” or in the child’s “best interests.” See Sullivan, 650 A.2d at 885.

Instead, the current Custody Law requires a court to consider a specific

list of 16 factors when “ordering any form of custody.” S.W.D. v. S.A.R.,

96 A.3d. 396, 401 (Pa. Super 2014) (emphasis added); see also 23 Pa.C.S.A.

§ 5328(a). We have interpreted “form of custody” to mean the seven types

of custody listed at 23 Pa.C.S.A. § 5323(a): (1) shared physical custody; (2)

primary physical custody; (3) partial physical custody; (4) sole physical

custody; (5) supervised physical custody; (6) shared legal custody; and (7)

sole legal custody. Id. at 402; see also 23 Pa.C.S.A. § 5323.

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Our Custody Law no longer provides a statutory basis to seek

“visitation.”7 We must treat Mother’s “Motion for Contact via Telephone and

Correspondence” as a petition for modification seeking supervised physical

custody.

First, we note that custody courts are flexible and treat certain petitions

(particularly pro se petitions and petitions for special relief) as modification

petitions even though the petitions do not strictly comply with Pa.R.C.P.

1915.15 (relating to procedure to modify custody). Such is the case here.

In this case, the parents had a custody order prior to Mother’s

incarceration. Her incarceration caused a de facto modification of her physical

custody. She seeks to modify the prior custody order so as to align it with the

reality that she is now incarcerated. In this respect, Mother’s petition is no

different than a typical modification petition. A parent often petitions for

modification only to formalize in a court order the reality of the current custody

arrangement. The petitioning parent argues that the operating custody order

no longer reflects the status quo and seeks to protect that status quo with all

the benefits that come with a court order. Mother, seeking contact with her

daughter, similarly seeks to have a new custody order meet the realities of

the parties’ current living situation. The difference between Mother and a

typical parent seeking modification is the availability of remedies.

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7 See 23 Pa.C.S.A. § 5302, repealed: “‘Visitation.’ The right to visit a child.”

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Second, we conclude that the type of custody Mother seeks in this case

fits the definition set forth in the Custody Law for “supervised physical

custody.” 23 Pa.C.S.A. § 5322 (b). This term is statutorily defined as:

“Custodial time during which an agency or an adult designated by the court

or agreed upon by the parties monitors the interaction between the child and

the individual with those rights.” Id. (Emphasis added). Thus, incarcerated

parents who seek some form of contact with their children – whether it be a

request that the children visit them or otherwise – are seeking an award of

“supervised physical custody” as defined under § 5323.8 In this case, Mother

seeks written correspondence and telephone communication. She wants to

interact with her daughter. Indeed, the trial court’s custody order even

authorized Father to screen Mother’s letters to their daughter.

We observe that our legislature surely anticipated custody petitions of

incarcerated parents when it included § 5329(b) in the current Custody Law.

This provision provides: “No court shall award custody, partial custody or

supervised physical custody to a parent who has been convicted of murder

under 18 Pa.C.S. § 2502(a) of the other parent of the child who is subject of

the order unless the child is of suitable age and consents to the order.” 23

Pa.C.S.A. § 5329(b) (emphasis added). This provision must apply in both

situations where the parent is presently incarcerated, as well as those

extraordinarily rare situations where a parent, convicted of murdering the
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8 “Partial physical custody” and “shared physical custody” both refer to the
actual physical possession of the child. See 23 Pa.C.S.A. § 5322(b).

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other parent, is released during the child’s minority. Naturally, the provision

is silent to whether the convicted parent can obtain visitation of the child,

because visitation is no longer an available remedy anywhere in our custody

law.

Having established that incarcerated parents seeking contact with their

children are seeking “a form of custody,” i.e., supervised physical custody via

either an original complaint or a modification petition, the custody court must

consider the custody factors under § 5328(a) when deciding these prison

cases.

Proper procedure mandates all custody requests be assessed under

the current Custody Law’s enumerated factors. We believe this method best

fulfills the statutory mandate as well as best protects the fundamental right

to parent one’s child. Mother’s request is no different.

Section 5328(a) 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 [Factors (1)-(15)]9 and (16) Any other relevant

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9 (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

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____________________________________________

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
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.

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factor.” 23 Pa.C.S.A. § 5328(a) (emphasis added). In its wisdom, our

legislature left room for “any other relevant factor,” recognizing that certain

situations would require consideration of additional information unique to the

parties. Recently, we noted several relevant factors that courts employ in

cases with an incarcerated parent.

In M.G. v. L.D. 155 A.3d 1083, 1093 (Pa. Super. 2017), we found the

trial court should have considered factors unique to prison cases which were

previously delineated in Etter v. Rose, 684 A.2d 1092, 1093 (Pa. Super.

1996).”

[I]n Etter v. Rose, the Superior Court recognized some of
the factors to be considered in deciding [custody cases]
where the parent is incarcerated:

(1) age of the child;

(2) distance and hardship to the child in traveling to the
visitation site;

(3) the type of supervision at the visit;

(4) identification of the person(s) transporting the child and
by what means;

(5) the effect on the child both physically and emotionally;

____________________________________________

(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.

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(6) whether the parent has and does exhibit a genuine
interest in the child; and

(7) whether reasonable contacts were maintained in the
past.

M.G. v. L.D., 155 A.3d at 1094 (quoting D.R.C. v. J.A.Z., 31 A. 3d 677, 687

(Pa. 2011)).10 We also noted that our Supreme Court included another

relevant consideration, namely:

(8) the nature of the criminal conduct that culminated in the
parent's incarceration, regardless of whether that
incarceration is the result of a crime enumerated in [section
5329(b)].

M.G. v. L.D., 155 A.3d at 1094 (numeration original). Although Etter was

decided prior to the amendments to our current Custody Law, in M.G. we

determined they still played a role in deciding prison cases.

M.G. involved an incarcerated Mother’s request to see, or to at least

have telephone contact with her 12-year-old daughter.11 Specifically, the trial

____________________________________________

10Although the D.R.C. decision was issued in 2011 – after the adoption of
the current Custody Law – our Supreme Court was tasked with interpreting
the since-repealed 23 PA.C.S.A. § 5303 (Award of Custody, Partial Custody
or Visitation). In doing so, the Supreme Court approved the Etter factors.
In M.G. v. L.D., we noted Supreme Court’s approval of the Etter factors and
reaffirmed their relevance under the current Custody Law.

We also note that 23 Pa.C.S.A. §§ 5329(c) (“Initial Evaluation”) and (d)
(“Counseling”) apply only to the post-release cases, not when a parent is
presently incarcerated. M.G., 155 A.3d at 1093-1094.

11 Critically, we note that although the trial court in M.G. failed to consider the
relevant factors, it properly conducted a full custody trial where the
incarcerated mother participated in the hearing.

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court did not consider the emotional effect the contact would have on the

child, nor the travel logistics and supervision during the visit. Id. Likewise,

the trial court did not determine whether the mother’s interest in expanding

contact with her daughter was genuine. The court also failed to consider the

nature of the mother’s criminal conduct and its effect upon her daughter. Id.,

at 1094-1095.

Without specifically stating so, in M.G. we acknowledged the Etter

factors are now assimilated into § 5328(a) analysis under § 5328(a)(16). See

P.J.P. v. M.M., 2018 Pa. Super. 100, 2018 WL 1979832 (Pa. Super. April 27,

2018) (holding that the shared custody factors set forth in Wiseman v. Wall,

718 A.2d 844 (Pa. Super. 1998), which predated the 2011 amendments to

the Custody Law, assimilated into the custody factors set forth in 23 Pa.C.S.A.

§ 5328(a)).

We acknowledge that not every § 5328(a) factor will necessarily apply.

“[W]here, as here, one parent is incarcerated and will remain imprisoned for

an extended period, the applicability of several of the enumerated [§ 5328(a)]

statutory factors is questionable.” M.G., 155 A.3d at 1093.

Some § 5328(a) factors are largely inapplicable to these cases. For

example, perhaps § 5328(a)(5) (“The availability of extended family”) has less

value than other factors when determining whether an incarcerated parent

should be able to speak to her daughter. But, of course this factor might be

relevant if extended family can provide transportation or financial resources

to allow telephone or virtual visitation.

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J-S20012-18

Some factors overlap. Compare: § 5328(a)(11)(“The proximity of the

residences of the parties”) with Etter Factor 2 (“The distance and hardship to

the child in traveling to the visitation site.”) Most of the Etter factors have a

similar § 5328(a) counterpart.

In the case at hand, the trial court first applied the former law and then

misapplied the current law. We observe the trial court relied upon, at least in

part, the former custody statute, which was repealed in 2011. See T.C.O., at

2-3.12 Moreover, to the extent that the trial court conducted a proper §

5328(a) analysis, it failed to contemplate the relevant Etter factors.

The court did apply § 5328(a)(11)(relating to the proximity of the

parties’ residences) almost as if it was the second Etter factor (the distance

to the prison). The court found: “It is approximately 85 miles from Father’s

residence to SCI-Muncy which is a driving time of 1 ½ hours each way.”

Where we believe the trial court erred, however, was in failing to consider the

other Etter factors.13 For example, the court did not consider the emotional

or physical effect the requested telephone contact would have on the child.

The court did not consider whether Mother has exhibited a genuine interest in
____________________________________________

12 The trial court cites to 23 Pa.C.S.A. § 5302 and to our 1991 case Warren
v. Rickabaugh, 600 A.2d 218, wherein we held: “In custody disputes, the
controlling question and paramount concern of the Court is the best interests
of the child, and all other considerations are deemed subordinate to the child’s
physical, intellectual, moral and spiritual well-being.”

13 We recognize that some Etter factors may also be inapplicable given
Mother’s request was only for telephone contact. She did not seek to have
the child transported to her. But even under this narrower custody analysis,
the court still failed to make the proper considerations.

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J-S20012-18

the child. The trial court did not consider whether reasonable contacts were

maintained in the past.

Etter aside, the trial court erred by not interviewing the child to consider

her preference, per § 5328(a)(7). Although the discretion remains exclusively

with the trial court, a child’s well-reasoned preference, based on her age and

judgment, could carry more weight in an incarceration case than it might

otherwise would have.

Although we find that the Etter factors have assimilated into our current

Custody Law, the presumption set forth in Etter did not survive the

amendments to the custody statutes. Father cites Etter for his argument that

incarceration alone “is a basis for creation of a presumption, to be rebutted

by the prisoner parent, that such visitation is not in the best interest of the

child.” See Father’s Brief, at 11; see also Etter v. Rose, 684 A.2d 1092,

1093 (Pa. Super. 1996).

The legislature, in amending our Custody Law, provided no such

presumption in incarceration cases. 14 Our legislature contemplated when a

presumption would arise, as well as how to treat parents’ criminal histories; it

provided no such presumption against incarcerated parents. Indeed, not only

is this presumption absent from our statutes, but any such presumption would
____________________________________________

14 See 23 Pa.C.S.A. § 5327 (“Presumption in cases concerning primary
physical custody”); see also §§ 5329 (“Consideration of criminal conviction”);
5329.1 (“Consideration of child abuse and involvement with protective
services”); 5330 (“Consideration of a criminal charge”). The legislature did
not even insert a presumption in a case where one parent has murdered the
other parent. See §5329(b).

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J-S20012-18

run afoul of the advances our courts have made in proceedings conducted

under the Juvenile Act, 42 Pa.C.S.A. § 6301, et seq. Our Judicial Dependency

Court Benchbook references the Pennsylvania State Roundtable Dependent

Children of Incarcerated Parents 2013 Workgroup Report. The report states:

[I]n most cases, children benefit from visitation and contact
with a parent who is incarcerated. Children feel enormous
grief and loss when they are unable to maintain contact with
a parent. It is almost the same when a parent has died.
Children also worry about a parent that they cannot see or
talk to on a regular basis. […] Visitation and contact can
reduce some of their worries and sad feelings.

Id. The Benchbook outlines the following best practices in dependency court:

Best Practice – Visits in Local Jails and Prisons

[…] Indeed, many counties have worked with their local jails
and created innovative practices, including child-friendly
visitation space, that support meaningful parent/child
visitation. Some examples include Adams, Allegheny, Blair,
Crawford and Westmoreland counties. […]

Id., at § 8.4.

We fail to see why the children of incarcerated parents should be treated

differently depending on whether they are the subject of dependency

proceedings or custody proceedings. Both the Juvenile Act and the Custody

Law serve the “best interests” of children.

Because the trial court failed to consider the relevant Etter

considerations unique to prison cases under § 5328(a)(16), the trial court

erroneously determined the extent of Mother’s “supervised physical custody”

without proper consideration of “all relevant factors.”

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IV.

Finally we must address Mother’s claim that the trial court process

constituted a “loss of her parental rights.” Here, when Mother filed for

modification of supervised physical custody, the trial court awarded Father

sole legal custody. The trial court’s legal custody decision similarly consists

of procedural and substantive faults.

If a party requests modification of any form of custody, the decision of

whether to modify either legal custody or physical custody should be made on

a case by case basis under the § 5328(a) factors discussed above. We cannot

determine from the ex parte hearing whether Mother should retain her shared

legal custody, but we acknowledge that legal custody rights of incarcerated

parents do not vanish upon their incarceration. Indeed, the trial court

acknowledged Mother retained shared legal custody when scheduling the

custody hearing, but then the court deprived her of those rights in its final

order.

In doing so, we note that the trial court again applied the repealed

custody statute. See T.C.O., at 2-3. Similar to the analysis above, “legal

custody” is a “form of custody.” See 23 Pa.C.S.A. §5322. As such, an award

or modification of legal custody necessarily requires analysis of the § 5328(a)

custody factors. The trial court relied on legal custody considerations set forth

in earlier case law that have been assimilated under § 5328(a).

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J-S20012-18

Before the revisions to the Custody Law, we held that when determining

whether to award shared legal custody, the trial court must consider the

following legal custody factors:

(1) whether both parents are fit, capable of making
reasonable child rearing decisions, and willing and be able
to provide love and care for their children; (2) whether both
parents evidence a continuing desire for active involvement
in the child’s life; (3) whether the child recognizes both
parents as a source of security and love; (4) whether a
minimal degree of cooperation between the parents is
possible.

See, e.g., Yates v. Yates, 963 A.2d 535 (Pa. Super. 2008); see also

Bernard v. Green, 602 A.2d 1380, 1381 (Pa. Super. 1990) (quoting In re

Wesley J.K., 445 A.2d 1243, 1249 (Pa. Super. 1982). We hold that these

legal custody factors have similarly been assimilated into the custody factors

set forth in 23 Pa.C.S.A. § 5328(a). See P.J.P. v. M.M., supra, 2018 Pa.

Super. 100, 2018 WL 1979832 (Pa. Super. April 27, 2018).15

Unlike the Etter factors, where several unique considerations – specific

to prison incarceration cases – are now considered under § 5328(a)(16)’s

____________________________________________

15 As we noted in P.J.P., prior custody case law still may retain persuasive
value. In the past, we stated that “the absence in the record of animosity of
one parent toward the other parent strengthens the case for shared custody.”
See, e.g., In re Wesley J.K. 445 A.2d at 1249. Nothing we have said today
detracts from this holding, as the holding speaks to the weight of the factors.
We only clarify the factors themselves. Thus, it could be very reasonable for
a trial court – finding no record of animosity – to award one parent primary
physical custody, while opting to keep legal custody shared. So long as both
analyses involve the § 5328(a) factors, the trial court is free to assign the
same factors different weight when awarding first physical custody, then legal
custody.

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catchall provision, here, these four “legal custody factors” from our case law

have been entirely consumed by § 5328(a). For instance, the legislature

expertly and purposely instructed trial courts to consider many more specifics

than just “fitness” generally. Regarding the former “Legal Factor 1” (whether

the parents are fit and willing to provide love and care), the current analysis

under § 5328(a) encompasses the question of “fitness” in the following

provisions: § 5328(a)(2)(relating to past abuse); (a)(2.1) (relating to past

crimes); (a)(3)(relating to parental duties); (a)(9)(relating to providing a

loving relationship); (a)(10)(relating to the willing to attend to the child);

(a)(12)(relating to the ability to make appropriate child care arrangements);

(a)(14)(relating to the history of household drug abuse); and (a)(15)(relating

to the mental and physical condition of the household).

Returning now to the instant case, the trial court ruled that Mother could

not share legal custody because she was “not able to participate effectively in

parenting decisions.” See T.C.O., at 3. This conclusion is seemingly the

product of no analysis, old or new. The trial court clearly thought it was bound

to the prior legal custody factors. But to the extent the trial court’s § 5328(a)

findings could be transplanted in a proper legal custody analysis, we reiterate

that Mother did not have notice, nor an opportunity to be heard on this issue

either.

Because the court similarly deprived Mother the opportunity to be heard

on legal custody, we must conclude that the court erred. On remand, we direct

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the trial court to apply the proper statute in determining whether Father

should have sole legal custody of the parties’ daughter.

Although, at first glance, it might appear that the trial court complied

with our current custody laws by listing the 16 factors in its opinion, we must

reverse the trial court’s order, in this prison custody case, for several reasons.

First, because Mother was not notified of her right to request to be present,

Mother’s was deprived her right to due process. Additionally, Mother was

deprived her right to have her modification petition adjudicated under the

current Custody Law’s analyses for physical and legal custody. Therefore, we

vacate the trial court’s order in this matter and remand for a new hearing.

Order vacated. Case remanded for proceedings consistent with this

opinion. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/29/2018

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