Can We Find a “Fix” for the Useless Offense of Custody Contempt?
One of the great frustrations of family law is finding a remedy for a wrong which will have the effect of fixing the problem. Custody contempt, a request to the court to stop behavior that violates the terms of a child custody order, is a place where courts devote thousands of hours of hearing time each year for almost no useful purpose. Eakin v. Gentile 719 WDA 2024, decided December 30, 2024 demonstrates in 16 pages that more often than not, this litigation is feckless.
The facts illustrate the new face of custody litigation in the 21st century. Mother and father have never married but have a 10 year old child. It seems from the opinion that mother has six other kids. In 2017 she files for custody of the then 3 year old and dad doesn’t come to the hearing. So, custody to mom. A year later, Dad appears and walks away from the hearing with every weekend. In 2019, there is a fight over which school the child should attend but the court never rules on the case (?).
In February 2024 father files an emergency petition professing that mom has substance abuse issues and does not have reliable housing. The opinion doesn’t analyze the specifics of that, but the Mercer County court holds a hearing in two weeks and awards dad primary custody. Mom is to have video visits three times a week. Seven weeks later mom files for live visits. Two weeks after her petition there is another hearing (kudos to the court for some amazingly prompt scheduling) and orders supervised visits in a park where mom’s boyfriend is supervisor but dad is allowed to “watch” from a distance. Advance one week and dad files for contempt claiming the visit was unsupervised. A hearing is held on that on May 30. Pause to note that in three months the court has held three live hearings.
The May 30 contempt hearing for failure to have supervision for her visit is classic; he said, she said. Dad was watching the visit and saw no signs of boyfriend. Mom says he was there but, in his car, because he was recovering from surgery. The judge hearing the case decided dad was credible and finds mother in contempt. The sanction is loss of one supervised visit in early June 2024.
Now things get weird. Mom lost her visit in early June and we are told that a custody conciliation on June 4 went nowhere. But, on June 14, the mother who lost one visit and is alleged to be borderline homeless files an appeal to the Superior Court of Pennsylvania stating that the court ruled incorrectly and that the remedy imposed (loss of a visit) was not one conferred by law. She files in forma pauperis and submits her own appellate brief. Father did not respond to any of this.
The central legal staff at the Superior Court catches the fact that the sanction has already been imposed and challenges the appeal on the basis that the matter is legally moot. Mom seems to fire back and say: “Hey the remedy was illegal and that is likely to continue unless the appellate court does something to stop it.”
Whatever her housing and whatever her relationship with addictive substances, mom is right on the law. The statute allowing courts to impose contempt findings limits the remedies to:
- Jail
- $500 fine
- Loss of driver’s license
- Counsel fees and costs
23 Pa. C.S. 5323(g)
So, as we have seen again and again, courts technically have no authority to “change a custody order” as a contempt remedy. See Rogowski v. Kirven, 291 A.3d 50,57 (Pa. Super, 2023). Meanwhile, the trial judge sagely notes that none of the statutory remedies are effective. He did what judges do almost every day; he made up an effective remedy (somewhat) of cancelling a visit or offering make-up time.
The result is pre-ordained. The contempt occurred but the remedy was reversed because it had no statutory basis. The case is remanded but it’s not clear what the trial court is supposed to do. Should he re-instate a make up visit? Is he supposed to jail mom, fine her when she appears to be struggling to find housing for her kids, take a driver’s license when her home may be her car? He can’t award counsel fees because dad was pro se.
Parents loved to file contempt petitions. Lawyers commonly tell them that the only thing certain is the legal expense of the filing and the hearing. But when lawyers aren’t involved, the courts end up conducting useless hearings to consider the imposition of useless and often counterproductive remedies. If nothing else, the statute needs to add something like public service as a remedy. Make the contemnors pick up some trash or paint a fireplug. Otherwise, the only victims are the judges who hear these matters and the taxpayers who support the insanity. Bear in mind that many judges won’t schedule custody proceedings while a case like this is on appeal. So, the grassroots problems such as housing and addiction can be left hanging without meaningful judicial oversight.