Custody Off the Rails: What’s A Court to Do?
We live in an age of rampant incivility and the case of Tsarouhis v. Catrickes demonstrates that the taxpayers are shouldering the burden of parents who can’t distinguish a courtroom from a barroom when it’s time to brawl.
The parties married in 2005; produced a son and triplet daughters by 2009. They separated in 2011 in a setting where husband admitted to criminal assault and agreed to a protection from abuse order. Meanwhile the divorce was not concluded until 2018. From 2012 to 2019 the parties agreed to joint legal custody with mother having primary custody and father partial. In 2020, the mother filed a custody modification in which she requested that their son reside with father. This is a subject which has never been decided; make the other parent take custody. At the same time, the mother suspended the father’s custody of the daughters.
From here, the gloves came off and the court did not decide the brawl until January 2024, a 3 year odyssey in a world where custody cases are supposed to be fast tracked. The procedural history reflects a judge’s interest in trying to take down the temperature of the conflict. But the recurring problem in modern custody cases is that the parents don’t really care.
Aside from father’s physical assault of mother, the conflict included threats by the son to kill his sisters. Father is alleged to have invaded the physical space of his daughters and to respect their reasonable requests to have privacy and not be grabbed.
In an effort to achieve peace, the trial judge appointed evaluators, counselors, and a guardian ad litem. Mother refused to cooperate and actually resisted efforts to re-unify the family. Meanwhile, the court proceeded with eight (8) hearings during the last six months of 2023 as the parties continued to file petitions for contempt and special relief.
The January 26, 2024 final order called for joint legal custody of all four children. Father would have primary custody of son subject to 6 hours of supervised weekly visits with mother. Mother got primary physical of the triplet daughters with father getting the same kind of six hour supervised block weekly. After six months, the children would alternate weekends as a block with all four spending one weekend with father and the next with mother.
Finally, Father was slapped with a $500 counsel fee award for contempt. Mom was rung up for $20,000 for the same kinds of violations. Despite a 40:1 ratio in terms of the counsel fees awarded it was father who appealed. Perhaps father thought that the Superior Court would see the counsel fee awards and think the trial court hadn’t done enough.
The three judge appellate court didn’t take the bait although two of the judges added a footnote style concurring opinion endorsing the trial court’s conclusion that if the January 2024 order didn’t work, perhaps custody of the daughters needed to be vested in father. Of course, that’s an empty threat in a world where any further modification will require a new and full hearing with consideration of all 16 stated custody factors under 23 Pa.C.S. 5328.
Let’s pause a moment to look at Supreme Court rule 1915.4. The relevant section is almost a quarter century old and was intended to demand prompt disposition of cases involving care and custody of children. The rule says, once an action is filed a conference must occur in 45 days. Then, within 180 days (6 months) the court is to enter an order scheduling a trial. Within 90 days of that, the court shall schedule the trial not more than 90 days from the scheduling order. So, 45+180+90 or 315 days from the custody filing or 10.5 months to trial. The rule is not discretionary. But, rare indeed are cases where any of these mandatory deadlines are met.
How did we get here? Some might suggest indolence, but the facts recited in this case seem to show otherwise. The case was filed in July 2020, just after the pandemic shutdown orders were vacated. By December the trial judge appointed a custody evaluator. A year later the court tried the family reunification route with a family counselor. In 2023 it resorted to a guardian ad litem, ironically at the same time the trial commenced. Eight days of hearing took six months. And the final order seems to suggest that the trial judge recognized that his best efforts had failed.
Courts are struggling to solve these cases but the opinion in this case seems to stand as testament to the fact that at least one if not both parents weren’t having any of it. Like any of us, judges go to work each day hoping to make a difference; especially in cases where kids are involved. The challenge they face is that many litigants don’t want to be guided toward resolution. There was a time when judicial officials were respected and often “feared.” You can see from this and many other recent appellate custody cases respect for the courts or the affected children are in short supply these days. Given this four-year odyssey of warfare, the idea that 6 months of visits supervised by a psychologist is going to effect meaningful change is the product of hope rather than expectation. One of the things courts need to do is provide judges with training to grasp and manage the unmanageable cases. One suspects that the custody evaluation initiated in December 2020 signaled that this case was not one ripe for reason.
Here’s the case decided October 30.