When I was a young lawyer, one of my mentors told me that in Allegheny County, custody cases are won and lost in motions court. I think most family law practitioners would agree with that sentiment – at least until May 2019. Previously, practitioners routinely went into motions court in an attempt to set, or alter, custody arrangements – often times with success. While having a proposed interim custody order signed as drafted is unlikely, presenting a petition for special relief regarding physical custody typically entitled the petitioner to some form of relief. Now, that practice has changed in Allegheny County due to a recent Superior Court of Pennsylvania decision, and the Allegheny County Court of Common Pleas implementing a procedure to schedule interim custody hearings before a Custody Hearing Officer, including requests for shared physical custody.
On May 6, 2019, the Superior Court of Pennsylvania decided E.B. v. D.B., ___ A.3d ____, 2019 PA Super 146 (Pa. Super. 2019). The E.B. case arose from the Allegheny County Court of Common Pleas. While the Superior Court Opinion details a long, tortuous, and litigious history, that created ten (10) issues on appeal, the most important issue for family law practitioners is the first issue addressed by the Superior Court: modification of physical custody without a hearing. Statutorily, courts “may issue an interim award of custody to a party who has standing . . . in the manner prescribed by the Pennsylvania Rules of Civil Procedure governing special relief in custody matters.” In relevant part, the Rule of Civil Procedure governing special relief in custody matters provides that “[a]t any time after commencement of the action, the court may on application or its own motion grant appropriate interim or special relief. The relief may include, but is not limited to, the award of temporary legal or physical custody[.]” Moreover, the official comment to the Rule of Civil Procedure provides that the rule is intended to be a broad provision “empowering the court to provide special relief where appropriate.” (Emphasis added.)
However, the foregoing rules have to be balanced with the litigants’ due process rights. As we all know from law school, due process has no exact definition, but there is a fundamental requirement that the parties have the opportunity to be heard in a meaningful way and at meaningful times. In almost every custody case, where the parties’ recitation of the relevant facts is diametrically opposed, due process includes the right to confront and cross-examine witnesses.
Balancing litigants’ due process rights with a judge’s statutory right to establish interim custody orders requires finesse. Practitioners should rely on existing case law, and erudite arguments to convince our judges when special relief is appropriate. When formulating our arguments in support of special relief, the best reasons (note: this is not an exhaustive list) appear to be: (1) where the parties have no formal custody arrangement; (2) in emergency situations, or for the safety of the child or children; and (3) based on a parent’s conduct after a contempt hearing. In support of the foregoing arguments, the following cases are helpful:
1. M.J.S. v. B.B., 172 A.3d 651 (Pa. Super. 2017) (upholding an interim order of court where the parties had no formal custody arrangement, and the interim order provided a stopgap during litigation).
2. S.W.D. v. S.A.R., 96 A.3d 396 (Pa. Super. 2014) (upholding an interim order of court in emergency situations to protect a child pending a final hearing).
3. J.M. v. K.W., 164 A.3d 1260 (Pa. Super. 2017) (upholding a temporary modification of physical custody after a contempt proceeding based on inappropriate conduct of one of the parents); see also Choplosky v. Choplosky, 584 A.2d 340 (Pa. Super. 1990); and Steele v. Steele, 545 A.2d 376 (Pa. Super. 1988).
Luckily, the Allegheny County Court of Common Pleas recently announced that a second Custody Hearing Officer has been hired, and that interim custody hearings are available. The exact details of the project are still being worked out, but as of now, the hearings are one (1) hour in duration. The scheduling order requires the litigants to provide a proposed order of court at the hearing. No pretrial statement is required by the current scheduling order of court. Most importantly, the hearings happen quickly. I recently obtained an interim custody hearing on the day before drafting this article, and there were approximately five (5) hearing times still available in July. Finally, the hearings are to be scheduled at the Generations Office. Hopefully, the interim custody hearings will help practitioners provide realistic guidance to clients navigating through the custody litigation process, which should, in turn, ease our clients’ minds during this difficult time in their lives.