256 A.3d 449
Pa. Super. Ct.2021Background
- Parents divorced after separation; they shared legal custody, with Mother as primary physical custodian and Father exercising partial physical custody (every other weekend plus two summer weeks).
- Mother filed notice to relocate with the children (ages 6 and 7) from Butler County to Somerset County; Father filed a cross-petition to modify custody to shared physical custody.
- Father subpoenaed the 7‑year‑old (M.R.S.) for an in‑camera interview to ascertain the child’s preference under 23 Pa.C.S. § 5328(a)(7) and § 5337(h)(4); the trial court granted a continuance and struck the subpoena provision requiring the child’s attendance.
- At the consolidated hearing the trial court declined to interview the children, relying on Pa.R.C.P. 1915.11 and the children’s ages, then denied Father’s modification petition and granted Mother’s relocation.
- Father appealed, arguing (inter alia) that the court erred by refusing to interview the children; the Superior Court found the interview issue preserved and held the trial court abused its discretion by refusing interviews based solely on the children’s ages.
- The Superior Court vacated the orders and remanded, instructing the trial court to conduct full § 5328 and § 5337 analyses and to supplement the record by obtaining the children’s preferences (by interview or other admissible means) or, if declining, to make specific trauma-based findings beyond age alone.
Issues
| Issue | Father’s Argument | Mother’s Argument | Held |
|---|---|---|---|
| Whether court erred by refusing to interview the children under Pa.R.C.P. 1915.11 and the Child Custody Act (§5328(a)(7), §5337(h)(4)) | Court must interview M.R.S. (and consider children’s well‑reasoned preferences) because preferences are relevant and could be dispositive | Rule 1915.11 gives the trial court discretion; interviews would be traumatic/confusing for children of their age and therefore unnecessary | Court abused its discretion: declining interviews solely due to age was improper. Remanded for the court to obtain children’s preferences or make record findings why interviews would be traumatic beyond age. |
| Whether Father waived the right to complain about refusal to interview by not objecting at hearing | Preserved: trial court’s pre‑hearing, definitive exclusion (striking subpoena provision during continuance) preserved the issue under Pa.R.E. 103(b) | Waived: Father did not object at end of the hearing | Held preserved: the court’s prior definitive ruling on attendance preserved the claim. |
| Whether the trial court adequately considered statutory custody and relocation factors (§5328 and §5337) | Trial court failed to apply full §5328 analysis when Father sought shared custody and failed to consider children’s preferences | Court considered factors and deemed preferences irrelevant given ages | Vacated: trial court must perform full §5328 and §5337 analyses, including assessing children’s preferences, and supplement the record on remand. |
Key Cases Cited
- T.D. v. E.D., 194 A.3d 1119 (Pa. Super. 2018) (trial court may decline child interview only if it has ample reasons; distinction drawn for narrow/ancillary issues)
- Bovard v. Baker, 775 A.2d 835 (Pa. Super. 2001) (refusal to interview children was abuse where their preferences could tip custody decision)
- McMillen v. McMillen, 602 A.2d 845 (Pa. 1992) (child preference is an important factor in best‑interest analysis)
- In re T.S., 192 A.3d 1080 (Pa. 2018) (declining to impose an age cutoff; a child’s expressed preference can have legal effect)
- In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017) (discussing weight and legal effect of child’s preference in dependency/termination contexts)
- A.V. v. S.T., 87 A.3d 818 (Pa. Super. 2014) (modification requiring full §5328 analysis)
- E.D. v. M.P., 33 A.3d 73 (Pa. Super. 2011) (relocation cases require consideration of overlapping custody and relocation factors)
- D.K. v. S.P.K., 102 A.3d 467 (Pa. Super. 2014) (acknowledging overlap between §5328 and §5337 factors)