Sample Custody Opinion

*SAMPLE OPINION

Judge Cathleen Bubash February 23, 2009

Father appeals of one provision of this Court’s
November 6, 2008 Order which arose out of a
conciliation and which attempted to clarify the
pick-up and drop-off of the parties’ children.
After reading the Order in question, Father’s
Concise Statement of Matters Complained of on
Appeal, and recalling the intention of the Court at
the time, it appears that the parties are
misunderstanding the Order or that the Order is
ambiguous. This Court’s Order of November 6,
2008 should be remanded to this Court for an
evidentiary hearing and/or entry of an amended
order consistent with the Court’s Intentions,
The existing Custody order requires Mother to
transport the two minor children to Father for his
periods of Partial Custody on Friday evenings
(See, Order of September 25, 2007). The
parties meet in Monroeville at 6:30 PM. During
one exchange, Father, who sometimes works in
Cranberry, was actually driving in front of Mother
from the Cranberry exit to the Monroeville exit, a
distance of 34 miles (or 68 miles roundtrip for
Mother). After a conciliation in which this issue
was raised, this Court issued the Order in
question docketed November 12, 2008 adding #
4 in an attempt convince the parties to
cooperate more effectively. The exact language
was that the exchanges of the children were “to
occur at the closest median point re: time and
location and other childcare arrangements”.

Father filed two separate Motions for
Reconsideration, one of which requested the
Court vacate the provision of Paragraph 4 of the
November 6, 2008 Order. That Motion was
denied. (See Order of Court dated December 4,
2008) Father appeals the provision of the Order
concerning the exchange of custody of the
children. It is Father’s contention that this Court
abused its discretion by modifying an existing
custody Order without the filing of a complaint
for modification or a motion for special relief.
This Court disagrees with Father’s contention,
as Mother raised the issue by oral motion in
chambers.

Father also contends that the Court abused its
discretion in making a final change in the
Custody Order without holding an evidentiary
proceeding. This Court did not substantively
modify the existing Order, but instead provided a
mechanism by which the parties could effectuate
the exchange of the children in a reasonable
fashion which would neither effect their custody
time nor cause either party an undue burden.

Ordinarily, the appropriate manner to bring about
a change in a custody order is by petition for
modification or special relief. This does not
prevent a trial court, under appropriate
circumstances, from altering a custody order
when it is in the best interest of the children to do
so. Steele v Steele, 545 A.2d 376 (Pa.Super
1988). The Court was attempting to clarify the
exchange of the children.

The language of 23 Pa.C.S. 5310 is clear and
unambiguous. The statute allows for modification
of an existing custody order if the best interest of
the children requires such modification. Karis v
Karis, 544 A.2d 1328 (Pa.1988). It is the trial
court’s responsibility to make a determination of
the children’s best interest based on the
pertinent facts and circumstances of the case.
Masser v Miller, 913 A.2d 912 (Pa.Super. 2006).
The best interest of the children is the trial court’s
paramount concern. McMillen v McMillen, 602
A.2d 845 (Pa.1992). This Court, therefore,
modified the Order only insofar as the exchange
provision, as it found it to be in the best interest
of these children to do so.

Additionally, the provision of Paragraph 4 of the
November 6, 2008 Order did not substantively
modify the existing custody order. It merely
clarified the Order.

The existing September 2007 Custody Order
did not provide for an exchange location, it only
provided that Mother was responsible for
transportation of the children. This was not
modified, as Mother was still required to bring
the children to Father.

The Court made it clear that the exchange
should occur at what would be the most
reasonable point for all involved. The Court’s
intention, clearly expressed to counsel, was that
the parties reasonably cooperate and
communicate with each other regarding the
custody exchange in a manner, which would be
in the best interests of the children. It was the
Court’s directive that the parties exchange
the children at a point which would not interfere
with Father’s other custody arrangements with
his child from a former marriage, at a point which
would make sense with regard to where Father
was working on the days and time of exchange,
and which would spare Mother unnecessary
driving.

Father has indicated that Mother has chosen to
interpret the November 6th Order in a manner,
which was not intended. Essentially, according
to Father, Mother has demanded that the
exchanges take place closer to her home,
regardless of where Father is working and has
gone so far as to demand that Father
drive farther north to Grove City to receive the
children, thereby placing the burden on Father to
provide the transportation, contrary to the
existing Order.

The November 6, 2008 Order was entered
based on the information presented to this Court
that Father and Mother drove the turnpike within
sight of each other for over 34 miles for no good
reason, causing unnecessary strife in what
is already a very contentious parental
relationship.

This Court’s November Order was intended to
protect the best interests of the children by
reducing the level of strife between the parties by
fashioning a reasonable way to effectuate the
custody exchange.

It appears, however, based on the averments of
Father’s 1925(b) Statement, that the opposite
has occurred. Although the Court was clear in its
intentions, it appears that since the written Order
is subject to interpretation, these parties will
interpret it however they can so as to vex each
other rather than in a way which will help their
children.

For these reasons, this Court believes the matter
should be remanded to allow for the scheduling
of a hearing on Mother’s oral motion for a
modification of the transportation provisions of
the existing custody order.

BY THE COURT:

____________________________ J.