J. S62016/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.A. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
APPELLANT :
:
v. :
:
H.M.V :
:
: No. 634 MDA 2016
Appeal from the Order Entered March 24, 2016
In the Court of Common Pleas of Berks County
Civil Division at No(s): 14-996
BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.
JUDGMENT ORDER BY DUBOW, J.: FILED OCTOBER 19, 2016
J.A. (“Father”) appeals pro se from the March 24, 2016 Order that
dismissed his Petition to Modify Order of Visitation with his seven year old
child, M.A.-V. (“Child”) and granted H.M.V. (“Mother”) sole legal and primary
physical custody.1 Because the trial court failed to hold an evidentiary
hearing before dismissing the Petition, let alone, consider the Petition in light
of the statutorily mandated factors set forth in the Child Custody Act, 23
Pa.C.S. §§ 5321-5340, we vacate the Order and remand for further
proceedings.
This is not the first time that Father appealed from the trial court’s
dismissal of a petition for visitation without holding a hearing. On August 5,
1
Trial court incorrectly dated the Order March 24, 2015 and filed the Order
on March 28, 2016.
J. S62016/16
2014, the trial court entered an Order dismissing Father’s first Petition for
Visitation without holding a hearing.2 Father appealed to this Court.
Because the trial court failed to hold a hearing, we entered a Judgment
Order vacating the trial court’s order dismissing the Petition, and ordered
that “either the trial court, or the Master at the trial court’s direction, must
conduct an evidentiary hearing and make factual findings pursuant to the
Custody Act . . . ” J.A.-R v. H.M.V., No. 1458 MDA 2014 (Pa. Super. filed
February 18, 2015) (judgment order).
On June 15, 2015, after a video status conference and without Mother
present, the trial court entered an Order permitting Child to visit with Father
at the facility where Father is incarcerated, S.C.I Albion. The Order required
the maternal grandparents to transport Child to S.C.I. Albion.
On September 21, 2015, Father filed a Petition to Modify Order of
Visitation (“Petition”). Father claimed that maternal grandparents refused to
transport Child to S.C.I. Albion because Mother threatened the grandparents
that she would not allow them to see Child if they complied with the Order.
Father petitioned the trial court to modify the visitation Order so that it
would be his brother, and not the maternal grandparents, who would
transport Child to S.C.I Albion.
2
Although the trial court referred the Petition to a Master, the Master did not
conduct an evidentiary hearing and prepare a report. The Master made the
unsubstantiated recommendation that the trial court deny the Petition. The
trial court accepted the unsubstantiated recommendation.
-2-
J. S62016/16
Although the Child Custody Act and Pennsylvania Rules of Civil
Procedure require the trial court to hold an evidentiary hearing prior to
entering an order on any form of custody, including visitation, and base its
decision on the sixteen factors set forth in the Child Custody Act, neither the
Master nor the trial court held a hearing on the Petition or analyzed the
statutorily mandated factors. See 23 Pa.C.S. §§ 5321-5340; Pa.R.C.P.
1915.4-2.
Instead, the Master, without holding a hearing or permitting argument,
recommended that the trial court dismiss the Petition. Although the Master
did not base its recommendation on any evidence, the trial court accepted
the recommendation and dismissed the Petition.
We are troubled that the trial court has now dismissed Father’s
petitions twice without holding an evidentiary hearing and evaluating the
merits of each petition in accordance with the statutorily mandated factors
set forth in the Child Custody Act. Therefore, we again vacate the trial
court’s Order and order the trial court to hold an evidentiary hearing on the
Petition within sixty days of this Order. Father may participate by telephone.
We note that the trial court has twice referred Father’s visitation
petitions to the Master and each time, the Master made unsubstantiated
recommendations without holding an evidentiary hearing. This has, among
other things, unreasonably delayed a decision in this matter. Consequently,
-3-
J. S62016/16
we are ordering that it be the trial court, and not the Master, who holds the
evidentiary hearing within sixty days.
Within thirty days of the evidentiary hearing, the trial court is to
provide Father with a written Opinion evaluating the Petition in light of the
sixteen factors set forth in the Child Custody Act, 23 Pa.C.S. § 5328(a), as
well as the special considerations when a parent is convicted and
incarcerated pursuant to 23 Pa.C.S § 5329 and M.G. v. L.D., 2016 PA Super
204, *8 (filed September 9, 2016).
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/19/2016
-4-