J.R.S. v. C.M.B. n/k/a C.M.W., J.R.S. v. C.M.B. n/k/a C.M.W. No. 1401 MDA 2016

Background

Parents separated in 2006; Mother (audiologist) moved to Wisconsin with the children in 2010 and later married J.B.; Father (physician) retained summer/visit custody and lived in Pennsylvania.
In 2012 Daughter disclosed to Stepmother that J.B. had sexually assaulted her; J.B. was convicted in 2013 of first-degree sexual assault and sentenced to consecutive terms.
Mother initially disbelieved Daughter, later apologized and engaged in therapy and limited reunification efforts; Mother and Daughter had attended two reunification sessions by the 2016 custody trial.
Mother filed to modify custody to re-establish physical custody; at trial the court interviewed both children in camera; both children preferred to maintain the status quo and Daughter did not want immediate physical contact with Mother.
Trial court awarded Father sole legal custody and primary physical custody, limited Mother to weekly phone calls plus letters/emails, and conditioned any physical contact/reunification on the recommendation and procedures set by court-appointed counselor Dr. Shorb. Mother appealed.

Issues

Issue	Mother's Argument	Father’s Argument	Held
Did the custody order effectively terminate Mother’s parental rights by granting her no legal/physical rights?	The restrictions and lack of custody rights amount to an effective termination of parental rights.	The order is restrictive but leaves open reunification and contact; it does not terminate rights.	Court: Order is not a termination; restrictive terms allowed future reunification and access to records.
Did the court err by failing to provide a discernible path to reconciliation between Mother and Daughter?	The order gives no clear, court-defined path to reunification and effectively forecloses Mother’s rights.	The order supports reunification but appropriately respects Daughter’s wishes and safety concerns.	Court vacated: trial court relied excessively on child preference and deferred too much authority to counselor; remand for a court-crafted order.
Did the trial court improperly delegate custody decisions to the counselor (Dr. Shorb)?	Court improperly abdicated its responsibility by leaving key custody decisions (continuation/termination of reunification and physical contact) to the counselor.	The counselor’s guidance is appropriate to safeguard the child and facilitate therapeutic reunification.	Court: Trial court erred in deferring custody determinations to counselor; delegation improper — vacated and remanded.
Whether child preference justified the custody outcome without fuller court-crafted plan	Mother argued child preference cannot substitute for court’s duty to fashion best-interest custody orders and plans.	Father relied on child’s preference and safety concerns to support continuing limited contact and status quo.	Court: Child preference was important but not dispositive; court still must exercise independent custody authority and craft the order.

Key Cases Cited

C.R.F. v. S.E.F., 45 A.3d 441 (Pa. Super. 2012) (standard of review and scope for custody appeals)
Ketterer v. Seifert, 902 A.2d 533 (Pa. Super. 2006) (child preference is an important factor and trial court observations warrant deference)
Saintz v. Rinker, 902 A.2d 509 (Pa. Super. 2006) (best-interests standard and factors to consider)
Kimock v. Jones, 47 A.3d 850 (Pa. Super. 2012) (restrictive custody orders do not necessarily constitute termination of parental rights)
Lewis v. Lewis, 414 A.2d 375 (Pa. Super. 1979) (trial court has authority and responsibility to attempt to preserve family relationships)
Commonwealth ex rel. Ermel v. Ermel, 393 A.2d 796 (Pa. Super. 1978) (same principle on preserving family ties)
Grieb v. Driban, 458 A.2d 1006 (Pa. Super. 1983) (weight accorded to child’s preference varies with maturity and reasons)