C.H.L. v. W.D.L.

J-A09012-19

2019 PA Super 210

C.H.L. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
W.D.L., :
:
Appellant. : No. 2617 EDA 2018

Appeal from the Order Entered, July 30, 2018,
in the Court of Common Pleas of Monroe County,
Civil Division at No(s): 580 DR 2016 and 5626 CV 2018.

BEFORE: KUNSELMAN, J., MURRAY, J., and PELLEGRINI*, J.

OPINION BY KUNSELMAN, J.: FILED JULY 08, 2019

W.D.L. (Husband) appeals from an order issued pursuant to the

Protection From Abuse (PFA) Act, 23 Pa.C.S.A. §§ 6101-6122. The PFA order

provided C.H.L. (Wife), inter alia, exclusive possession of the marital residence

and awarded her temporary sole custody of the parties’ four-year-old

daughter; the child was not named as a protected party in the order. After

careful review, we affirm.

In a meticulous, 42-page Rule 1925(a) opinion, the trial court detailed

the “very calculated, complex, web of domestic violence, control and

intimidation by Husband against Wife.” See T.C.O., 11/16/18, at 1. Those

facts, crucial to our understanding the court’s decision, are ultimately not

essential to the disposition of Husband’s appeal. Briefly, the overture is this:

The parties wed after just three weeks of dating when Husband was 46

and Wife was 20. Their five-year marriage produced a four-year-old daughter

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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and extensive litigation, replete with protective orders, contempt violations

and criminal charges. Not until the instant PFA hearing, however, did the

court recognize Husband’s “manipulation of all facets of the criminal justice

and court system in order to achieve power and control over Wife.” See id.

at 30. The court stated that Husband “was playing the system like a

Stradivarius.” See N.T., 7/30/18, at 42. Although Husband tried to persuade

the court that Wife suffered from various mental illnesses, the court ultimately

concluded that Wife’s erratic behavior was attributable to years of domestic

violence.

At the PFA hearing, Wife testified to Husband’s extensive abuse and

produced photographic evidence of the same. The court further determined

that Husband used custody of the parties’ child as a “weapon against Wife.”

See T.C.O. at 41. The court issued a two-year PFA order, which included

provisions awarding Wife exclusive possession of the marital residence and

temporary sole custody of the child pending a custody conference scheduled

for seven weeks later.

Husband filed this timely appeal and presents five issues for our review:

1. Did the trial court err and/or abuse its discretion in
granting Wife’s protection from abuse petition when
the award was against the weight of the evidence
presented and against the credibility of Wife based on
evidence during the hearing?

2. Did the trial court err and/or abuse its discretion in
not allowing Husband to present certain evidence
which would have shown that Husband was not
abusive toward Wife and would have shown the nature

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of the parties’ relationship, such as text messages and
letters?

3. Did the trial court err and/or abuse its discretion in
not allowing Husband to present evidence which
showed he had the right to occupy the subject
property pursuant to a divorce settlement agreement,
and where Husband had not welcomed Wife to the
subject property and asked Wife to leave the subject
property?

4. Did the trial court err and/or abuse its discretion in
evicting Wife from the subject property when the
parties had executed a divorce settlement agreement,
which stated appellant would have exclusive
possession of the subject property?

5. Did the trial court err and/or abuse its discretion in
awarding temporary primary custody to Wife when
Wife testified Husband had not physically harmed the
child nor threatened the child, and Wife testified that
Husband was a good father, and was precluded from
presenting the current custody order where he had
sole physical custody?

See Husband’s Brief at 9-10.

Our standard of review for PFA orders is well-settled. In the context of

a PFA order, we review the trial court’s legal conclusions for an error of law or

abuse of discretion. Boykai v. Young, 83 A.3d 1043, 1045 (Pa. Super. 2014)

(citations omitted).

Husband’s first claim seemingly challenges the weight of the evidence

presented at the PFA hearing. Throughout his brief, however, Husband

conflates the weight of evidence with the sufficiency of evidence. See

Husband’s Brief at 42. The combination of Husband’s departure from the

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actual issue presented, and the fact that he cites no relevant authority makes

it difficult to discern the substantive nature of his claim.

Whatever its foundation, we conclude Husband’s first issue is waived.

It is well-established that the failure to develop an argument with citation to,

and analysis of, pertinent authority results in waiver of that issue on appeal.

See Pa.R.A.P. 2119(b); Eichman v. McKenon, 824 A.2d 305, 3019 (Pa.

Super. 2003). Here, Husband cites no relevant legal authority to discuss

either the weight or the sufficiency of the evidence; one cited case addresses

a court’s appearance of impropriety and the other is a decades-old precedent

concerning the absence of due process at a zoning hearing. See Husband’s

Brief at 30. Husband merely attempts to re-litigate the facts and the PFA

court’s credibility findings. See Husband’s Brief at 30-42.

To that end, we observe that the credibility of witnesses and the weight

to be accorded to their testimony is within the exclusive province of the trial

court as the fact finder. See Mescanti v. Mescanti, 956 A.2d 1017, 1020

(Pa. Super. 2008). In reviewing the validity of a PFA order, this Court must

view the evidence in the light most favorable to petitioner and granting her

the benefit of all reasonable inferences. See S.W. v. S.F., 196 A.3d 224, 228

(Pa. Super. 2018) (citation omitted). And we must defer to the lower court’s

determination of the credibility of witnesses at the hearing. Id. Thus, even if

Husband had preserved his first issue, we would still find his claim to be

meritless.

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Turning to his second claim, Husband argues that the PFA court

erroneously prevented him from presenting relevant evidence, such as text

messages and letters. Again, our review is hindered by deficiencies in

Husband’s brief.

This portion of Husband’s argument section is a mere 200 words.1 See

Husband’s Brief at 43-44. Although he cites legal precedent, a rule of

evidence, and the transcript, he does not actually identify the evidence he

sought to introduce, nor the court’s alleged exclusion of the evidence, nor his

objection to the court’s ruling. Id. An exchange during his direct examination

is the only identified portion of the record where Husband claims the court

erroneously limited the admission of his evidence:

ATTORNEY: So [Wife] is [at the marital residence] as of
now?

HUSBAND: She is not. She left on the 21st of this month
after being requested to, after about two
months’ worth of requests --

THE COURT: Alright, I’m going to stop you there,
[Husband], so you’re just going to answer
the question and not editorialize, otherwise
we’re never going to get through this.

N.T., 7/30/18, at 3-4.

Notably, neither Husband nor his attorney took issue with the trial

court’s procedure:

____________________________________________

1 We observe, however, that Husband did not include a certificate of
compliance ensuring that the brief, which totaled 55 pages, was less than
14,000 words. See Pa.R.A.P. 2135(a).

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ATTORNEY: Fair enough.

HUSBAND: Yes, ma’am.

Id. at 4.

Compounding our confusion, we note that the trial court explained that

the only evidentiary rulings it made were actually in Husband’s favor:

At no time during the final PFA hearing did Wife raise an
objection to any evidence presented by Husband during his
case in chief. Nor did the Court sustain any objection or
preclude Husband from presenting evidence of any kind. In
fact, the only objections raised during the proceeding were
by Husband’s counsel seeking to preclude evidence or
testimony Wife sought to admit, which [the court]
sustained.

See Trial Court Opinion, 11/16/18 at 36-37.

For several reasons, we must again find waiver. For one thing, issues

not raised in the lower court are waived and cannot be raised for the first time

on appeal. Pa.R.A.P. 302(a). If Husband had other contentions during the

hearing, he did not properly raise them. In terms of his appellate brief, we

observe that “[i]f reference is made to pleadings, evidence, charge, opinion

or order, or any other matter appearing in the record, the argument must set

forth, in immediate connection therewith, or in a footnote thereto, a reference

to the place in the record where the matter referred to appears.” Pa.R.A.P.

2119(c). If Husband had other contentions he meant to address in his brief,

he did not properly reference them.

It is not the duty of this Court to act as appellant’s counsel, and we

decline to do so. See Hayward v. Hayward, 868 A.2d 554, 558 (Pa. Super.

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2005). “We shall not develop an argument for an appellant, nor shall we

scour the record to find evidence to support an argument; instead, we will

deem the issue to be waived.” Commonwealth v. Connavo, 199 A.3d 1282,

1289 (Pa. Super. 2018) (citations omitted). When an allegation is

unsupported by any citation to the record, such that this Court is prevented

from assessing the issue and determining whether error exists, the allegation

is waived for purposes of appeal. Commonwealth v. Williams, 176 A.3d

298, 306 (Pa. Super. 2017) (citations omitted). This Court cannot conduct a

meaningful review if it has to guess what issues an appellant is appealing.

See Jones v. Jones, 878 A.2d 86, 89 (Pa. Super. 2005) (finding waiver when

this Court could not discern appellant’s issues on appeal) (citation omitted).

We conclude that Husband’s second issue is also waived.

We discuss Husband’s third and fourth issues contemporaneously, as

both concern the court’s award of exclusive possession of the marital

residence to Wife. First, Husband contends that Wife was not entitled to

receive exclusive possession of the marital residence, because Wife had

previously executed a marriage settlement agreement wherein she had

granted possession to Husband.2 Second, Husband contends that Wife was

____________________________________________

2 We note that at the time of the PFA hearing, the parties were not divorced.
Wife has since averred that the settlement agreement is void and
unenforceable on the grounds of incapacity and intentional fraud. In other
words, this is not a case where, long after the divorce decree and equitable
distribution, a PFA court awarded one ex-spouse possession of other’s
property.

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not entitled to this relief, because she did not explicitly request it in her PFA

petition.

Husband argues that the court did not allow him to present the

settlement agreement showing he had a right to exclude Wife from the subject

property. See Husband’s Brief at 45. Like his previous evidentiary challenge,

Husband’s recitation of what transpired at the hearing is just not true.

Husband cannot cite to where he attempted to present such evidence but was

rebuffed by the court. See also T.C.O., at 36-37 (excerpt quoted above).

More to the point, Husband is simply incorrect that the court lacked

authority to award the marital residence to Wife because she does not hold

title to it. The Protection From Abuse Act specifically allows the court to grant

a plaintiff exclusive possession of the residence even though the defendant is

the sole owner if the defendant has a duty to support the plaintiff or minor

children living in the residence. See 23 Pa.C.S.A. § 6108(a)(3).

In the alternative, Husband argues that the court could not award

exclusive possession, because Wife did not expressly request such relief in her

PFA petition. See Husband’s Brief at 48. He analogizes the instant case to

when a court issues a PFA order on behalf of a party who did not properly

petition for one, a situation clearly forbidden by Section 6108(c) (concerning

mutual orders of protection).

His argument is novel, but we need not decide whether the court is

confined to only those forms of relief requested in the petition, or whether the

court has the broad discretion to award any form of relief under Section 6108.

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We conclude that the relief Wife requested in her PFA petition authorized the

court to award exclusive possession under Section 6108(a)(3).

Wife’s PFA petition was a standardized document where she, as the

petitioner, filled in blanks and checked off boxes. Such is a typical practice

across the Commonwealth and often completed with the help of volunteers.

Husband is technically correct; Wife did not check off the box that stated:

“Plaintiff is asking the court to evict and exclude the Defendant from the

following residence: _____.” See Wife’s Petition for Protection From Abuse at

4. Likewise, Wife did not check off the box, which prayed upon the court to:

“Grant such other relief as Plaintiff requests and/or the court deems

appropriate.” Id.

However, Wife did check the box that requested the court to: “Require

Defendant to provide Plaintiff and/or minor child/ren with other suitable

housing.” Id. Wife also articulated that she lost “money, car, home” on

account of Husband’s abuse. Id. Consequently, Husband was on notice at the

PFA hearing that he would be responsible for providing suitable housing for

Wife and their child if Wife succeeded on her petition.

Given his responsibility to the parties’ child, the court may have

determined it was best for the child to remain at the same address while

custody switched from Husband to Wife by virtue of the PFA order. But we

need not speculate, because Wife clearly requested that Husband provide her

and their child with suitable housing. The PFA Act authorizes the court to

provide such relief. The court observed that Husband had the financial ability

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to comply. Consequently, the court did not abuse its discretion when it

determined that exclusive possession of the marital residence was an

appropriate mechanism to facilitate this relief. Husband’s third and fourth

issues are also without merit.

We turn now to Husband’s final contention that the court erred by

awarding Wife temporary custody of their four-year-old daughter. See

Husband’s Brief at 51. Before we address the merits of Husband’s challenge,

we consider whether the PFA order’s temporary custody provision is moot.

The PFA order, dated July 30, 2018, awarded Wife temporary sole legal

and physical custody of the child, and directed the parties to attend a custody

conference before a conciliator on September 12, 2018. The parties appeared

for the conference, and the conciliator took the matter under advisement.

Before a decision was issued, Husband filed a PFA petition against Wife on

behalf of the child and provided the court a photo of a welt on the child’s body.

The court granted Husband a temporary PFA order, and the child was placed

in his custody. A final PFA hearing was delayed until late October 2018 while

the local Children and Youth Services investigated.3 Following the

investigation, the court held a final PFA hearing and denied Husband’s petition.

Custody then reverted back to Wife, pursuant the temporary custody provision

of the July 30, 2018 PFA order.

____________________________________________

3The results of the CYS investigation are not in the record, but the trial court
noted that CYS did not commence a dependency action. See T.C.O. at 22.

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On November 1, 2018, the custody conciliator’s report indicated that the

parties were unable to reach an agreement. The court scheduled a preliminary

hearing for November 19, 2018, appointed the child a guardian ad litem,

ordered a comprehensive custody evaluation, and established an interim

custody order. There, our knowledge of the custody case ends with the trial

court’s issuance of its Pa.R.A.P. 1925(a) opinion on November 16, 2018.

There is no question the court intended for the PFA order’s custody

provisions to apply only on an emergency, temporary basis until the parties

met at the custody conference. Because the Interim Custody Order (dated

November 1, 2018) almost certainly superseded the temporary custody

provisions of the PFA Order (dated July 30, 2018), it appears that the issue

Husband presents in this appeal regarding the PFA Order’s custody provision

is moot.4

This Court has held that “we may sua sponte raise the issue of

mootness, as we generally cannot decide moot or abstract questions, nor can

we enter a judgment or decree to which effect cannot be given.” E.B. v. D.B.,

--- A.3d ---, 2019 PA Super 146, at *7, (Pa. Super. May 6, 2019) (citing In

re L.Z., 91 A.3d 208, 212 (Pa. Super. 2014) (en banc), rev’d on other

grounds, 111 A.3d 1164 (Pa. 2015) (quotations omitted).

Despite our general rule regarding mootness,

____________________________________________

4By now there should exist a final custody order, which presumably subsumes
both the Interim Custody Order and the temporary custody provision of the
PFA Order.

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this Court will decide questions that otherwise have been
rendered moot when one or more of the following
exceptions to the mootness doctrine apply: 1) the case
involves a question of great public importance, 2) the
question presented is capable of repetition and apt to elude
appellate review, or 3) a party to the controversy will suffer
some detriment due to the decision of the trial court.

Id. (quoting In re D.A., 801 A.2d 614, 616 (Pa. Super. 2002)).

In E.B. v. D.B., we reviewed the merits of an interim order that modified

a pre-existing custody arrangement pending a final hearing. The interim order

was reviewable because otherwise the interim order would likely have evaded

our review due to its interlocutory nature. Id.; see also Plowman v.

Plowman, 597 A.2d 701 (1991) (reviewing an interlocutory order permitting

a mother to relocate with her child despite the existence of a later order

entered after a full custody hearing).

Here, because the instant PFA order affected the non-custodial parent's

right to “access to the child and impacted the status quo that would later set

the stage for the full custody trial, we conclude that we ought to review the

proper procedures for entry” of temporary custody provisions in a PFA order.

See id. As in E.B., we are satisfied that the question presented concerning

the PFA’s temporary custody provision is “capable of repetition and apt to

elude appellate review.” See id. at *8. As in E.B., “the history of this case

suggests that these parties are likely to litigate continually aspects of their

custody arrangement, and the trial court might again try to resolve their issues

without conducting a full trial.” See id. Although the trial court fashioned a

sole custody provision on a temporary basis, that provision was the operating

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custody arrangement for at least three months. We may proceed to the merits

of Husband’s final contention.

Husband asserts that the court erred when it did not consider the child’s

best interests when displacing the prior custody order and awarding Wife

temporary custody out of the PFA order.

To discern whether the court erred, we must examine the connection

between the Protection From Abuse Act (23 Pa.C.S.A. §§ 6101-6122) and the

current iteration of the Child Custody Act (23 Pa.C.S.A. §§ 5321 – 5340), both

of which are chapters under the Domestic Relations Code. When considering

issues of statutory interpretation, the applicable standard of review is de novo

and our scope of review is plenary. Trout v. Strube, 97 A.3d 387, 389 (Pa.

Super. 2014).

Believing the facts to be similar, Husband relies exclusively on Shandra

v. Williams, 819 A.2d 87 (Pa. Super. 2003), wherein we concluded that the

trial court had improperly modified a child custody order following a PFA

hearing without first providing the parties an opportunity to introduce

evidence relating to the best interests of the child. Shandra, 819 A.2d at 88.

Husband’s reliance is misplaced.

In Shandra, although the custody portion of the PFA order was entered

ostensibly under the auspices of section 6108(a)(4) (relating to temporary

custody), the trial court effectively entered a final custody order. There, the

court permanently suspended all of the father’s custodial rights until he

achieved a certain condition, namely the release from his halfway house. Id.

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at 90-91. We reiterated that the right of the PFA court to award temporary

custody was intended to provide ancillary relief regarding children in abuse

actions, but not to establish a procedure for determining permanent custody.

Id. at 91. (Citation omitted). Because the Shandra PFA court effectively

issued a final custody award, it erred by not abiding by the proper custody

procedure, including notice and an opportunity to be heard on substantive

custody considerations, i.e. the child’s “best interests” as defined by statute.

In Shandra, we quoted the pertinent custody statute nearly verbatim

when we stated: “[I]t is well-settled, that in any instance in which child

custody is determined, the overriding concern of the court must be the best

interest[s] and welfare of the child, including the child’s physical,

intellectual, emotional and spiritual well-being.” See id. (Emphasis

added); see also 23 Pa.C.S.A. § 5301(a).

In the years since Shandra, sections 5301- 5315 of the Child Custody

Act have been repealed and replaced. The new iteration of the Child Custody

Act requires a 16-factor, best interests analysis when awarding any form of

custody. See 23 Pa.C.S.A. § 5328(a).

In other words, we could not apply the Shandra best interests rule in

any event, as it was based on a statute now defunct. What Husband

essentially argues then, is that the court erred by not conducting a best

interests analysis under Section 5328(a) of the current Child Custody Act.

Absent guidance from our Legislature or our Supreme Court, we

conclude that a PFA court need not conduct a best interests custody analysis

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to award temporary custody as form of relief under section 6108 of the

Protection From Abuse Act.

The purpose of the Protection From Abuse Act is to protect victims of

domestic violence from the perpetrators of that type of abuse and to prevent

domestic violence from occurring. Ferko-Fox v. Fox, 68 A.3d 917, 921 (Pa.

Super. 2013)(citation omitted). It is well-settled that trial courts have the

authority to enter protection from abuse orders that conflict with custody

orders. See Lawrence v. Bordner, 907 A.2d 1109, 1113 (Pa. Super. 2006)

(citing Dye for McCoy v. McCoy, 621 A.2d 144, 145 (Pa. Super. 1993)). The

PFA Act allows the court to award temporary custody or establish temporary

visitation rights with regard to minor children. See 23 Pa.C.S.A. § 6108(a)(4).

Where the court finds after a hearing that the defendant has inflicted serious

abuse, the court may deny the defendant custodial access to a child. See 23

Pa.C.S.A. § 6108(a)(4)(iii). In order to prevent further abuse during periods

of access to the plaintiff and child during the exercise of custodial rights, the

court shall consider, and may impose on a pre-existing custody award,

conditions necessary to assure the safety of the plaintiff and minor children

from abuse. See 23 Pa.C.S.A. § 6108(a)(4)(vi).

Custody wise, a PFA order is not designed to impose anything but

emergency relief. See Dye for McCoy, supra, 621 A.2d at 145. To

understand this, look no further than the PFA Act: “Nothing in this paragraph

[relating to temporary custody as a form of relief] shall bar either party from

filing a petition for custody under Chapter 53 (relating to custody) or under

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the Pennsylvania Rules of Civil Procedure.” See § 6108(a)(4)(v). But while

the domestic violence emergency is still pending, a PFA order may alter a pre-

existing custody order and remand for clarification to avoid conflict. See Dye

for McCoy, 621 A.2d at 145. “To hold otherwise would have the effect of

emasculating the central and extraordinary feature of the PFA which is to

prospectively control and prevent domestic violence.” Id.

Moreover, the PFA Act does not require a child to be physically struck

before a court can award temporary sole custody to a plaintiff. The court may

do so even though the defendant has inflicted serious abuse upon the plaintiff

alone. See § 6108(a)(4)(iii)(B).

There is good reason for this. For one, research indicates that children

who are exposed to domestic violence suffer a torrent of adverse effects

regardless of whether they are direct victims of the physical abuse. See, e.g.,

Rosie Gonzalez & Janice Corbin, The Cycle of Violence: Domestic Violence

and Its Effects on Children, 13 SCHOLAR 405, 413 (2011). Even simple

exposure to such violence produces physical and mental results similar to

those observed in maltreated children. See id. (Footnotes omitted).5 The PFA

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5We observe the research’s non-exhaustive litany that might befall exposed
children:

Children living in violent homes suffer both immediate and
long-term effects such as trauma-related symptoms,
depression, low self-esteem, and aggression. They are also
likely to suffer from unhealthy sleeping and eating habits as
infants, exhibit aggressive and regressive behavior in

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Act also guards against defendants who use children as tools against those

seeking protection, even if the children are not themselves physically abused.

In the instant case, the court found exactly that.

Wife testified she always “positioned” herself away from the child when

Husband beat her so the child would not see the abuse. See N.T., 7/30/18,

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school, and behave delinquently as teenagers. The
psychological impact on children living in violent homes can
manifest itself as post-traumatic stress disorder (PTSD) or
other psychiatric disorders, including dissociative disorders,
anxiety, and mood disorders. These children also have a
tendency to exhibit suicidal ideation, increased levels of
fear, unnatural passivity and dependency, as well as
impulsivity and extreme crying. Younger children generally
suffer from poor health, insomnia, excessive screaming,
frequent headaches, stomachaches, diarrhea, asthma, and
peptic ulcers. Accordingly, children exposed to family
violence are admitted to hospitals twice as often as other
children, have an increased number of psychosomatic
complaints, and are more frequently absent from school due
to health problems. Furthermore, victims of abuse
frequently turn to drug and alcohol abuse in order to cope
with traumatic childhood events, which in turn can lead to
the development of fatal diseases such as heart disease,
lung cancer, and liver disease.

* * *

In addition to the increased risk for future violent
victimization, children exposed to domestic violence are also
more likely to become perpetrators of violence against
others.

Id. at 413-415, 418 (footnotes and quotations omitted).

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at 27. Wife further testified that Husband is not a physical danger to the

child, but she stated:

I believe mentally it’s not healthy for [the child], because
[Husband] tells [the child] ‘mommy’s going away for a long
time’ and ‘you’re going to get a new mommy,’ and [the
child] repeats ‘I don’t want a new mommy, I love my
mommy’ and yeah, he like tells, just tells her that. So he’s
not, no, he’s not physically abusive to [the child] but he tells
her stuff that you should not tell a four-year-old.

Id., at 30.

The court classified these types of statements as destructive and

concluded that Husband has utilized custody of the parties’ small child “as a

weapon against Wife.” See T.C.O. at 41.

Contrary to Husband’s assertion, the PFA court actually concluded that

temporary custody was in the child’s best interests. Id. at 43. Indeed, some

of the court’s considerations appear to correspond with a formal custody

analysis.6 Nevertheless, when awarding temporary custody out of a PFA

order, the court need only consider the risk the defendant poses to the child

as well as the plaintiff. See 23 Pa.C.S.A. § 6108(a)(4).

We cannot ignore the sheer impracticality of Husband’s suggestion, that

a court conduct a full-blown custody hearing as part of a final PFA hearing.

With an eye toward judicial economy, we observe that the dichotomy between
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6 The Child Custody Act mandates that a court consider both the abuse one
parent suffers at the hands of the other, as well as the attempts of the parent
to turn the child against the other. See 23 Pa.C.S.A. § 5328(a)(2),(8). A court
must also give weighted consideration to those factors affecting the safety of
the child. Id.

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a PFA order’s temporary custody provision and a final custody order is akin to

a jurisdictional challenge under the Uniform Child Custody Jurisdiction and

Enforcement Act, 23 Pa.C.S.A. §§ 5401 et seq. There, a court must first hold

a hearing to determine whether it even has jurisdiction to award custody; the

court leaves for another day entirely the substantive custody considerations.

But even then, a court exercising temporary emergency jurisdiction may

award interim custody relief. “A court of this Commonwealth has temporary

emergency jurisdiction if [inter alia] it is necessary in an emergency to protect

the child because the child or sibling or parent of the child is subjected to

or threatened with mistreatment or abuse.” § 5324(a) (emphasis added). The

risk of abuse to the parent alone is enough to authorize the court to protect

the child.

Similarly, a temporary custody provision in a PFA order is just like any

other interim custody order. Section 5323(b) of the Child Custody Act makes

clear that interim custody orders are not the types of custody awards

necessitating a 16-factor, best interests analysis under Section 5328(a).

Often, it will be reasonable and necessary for the trial court to institute a

temporary arrangement as a stopgap during litigation. See E.B., 2019 PA

Super 146, at *10. It is well-settled that trial court has authority to award

custody on a temporary basis so that it may address emergency situations

and protect a child until a final custody hearing can be held, when a permanent

order can be entered. See S.W.D. v. S.A.R., 96 A.3d 396, 405 (Pa. Super.

2014) (citing Pa.R.C.P. No. 1915.13 (“Special Relief”); see also 23 Pa.C.S.A.

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§ 5323(b) (allowing interim award of custody in the manner prescribed by the

Pennsylvania Rules of Civil Procedure governing special relief).

The object of all statutory interpretation and construction is to ascertain

and effectuate the intention of the General Assembly. See 1 PA.C.S.A. §

1921(a). We must presume that our Legislature did not intend any statutory

language to exist as mere surplusage. See, e.g., C.B. v. J.B., 65 A.3d 946,

951 (Pa. Super. 2013). With those principles in mind, we conclude there is no

conflict between the PFA Act’s relief of temporary custody and the Child

Custody Act’s mandate that a court conduct a best interests analysis when

awarding any form of custody. See 23 Pa.C.S.A. § 6108(a); see also 23

Pa.C.S.A. § 5323(b). The best interests mandate only applies to final custody

awards, not temporary solutions to emergencies.

We recognize the apprehension that some could exploit the PFA Act, i.e.

that dishonest parents might utilize a protection order as a vehicle to bypass

the Child Custody Act and obtain a backdoor custody modification. The

Domestic Relations Code accounts for the potential exploitation by separating

the custody issue into two inquiries: first, a PFA court addresses the exigent

risk of abuse posed to the child as well as the petitioner; thereafter, the

custody court determines the child’s best interests. This procedure safeguards

the rights the both parties in their dual roles as PFA litigants and as parents.7

Still, as we cautioned in E.B., supra, courts should be wary of prolonged
____________________________________________

7In larger counties where the courts have been able to adopt a “one family,
one judge” policy, this process is all the more seamless.

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interim orders as they could violate a non-custodial parent’s constitutional

right to due process. That was not the situation here.

In the case at bar, the PFA court appropriately considered the risk of

abuse posed by Husband to Wife and the child when granting Wife temporary

sole custody pursuant to Section 6108(a)(4). Its decision was not an abuse

of discretion.

Order affirmed.
Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/8/19

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