Rogowski, S. v. Kirven, D.
291 A.3d 50
Pa. Super. Ct.2023Background
- Parents (Mother Summer Rogowski; Father David Kirven) share a child born 2013; originally had a week-on/week-off shared custody schedule, modified by an August 17, 2020 order granting shared legal custody (Mother had sole educational decision authority).
- Mother had the Child baptized (Catholic) without Father’s knowledge or consent, despite knowing Father opposed baptism; Mother consulted counsel beforehand and informed Father a month later.
- Father sought modification; at a March 14, 2022 custody trial the court found Mother had acted to diminish Father’s role, held Mother in contempt for the unilateral baptism, and ordered co-parent counseling as a purge condition and other co-parenting remedies.
- Mother filed motions for reconsideration and appeals; the trial court later held a May 20, 2022 hearing and on May 23, 2022 granted Father limited sole legal custody to decide whether the Child would receive the COVID-19 vaccine and boosters.
- The Superior Court affirmed the contempt finding, vacated the counseling-as-purge sanction and the restriction forbidding the Child from calling anyone other than the biological parents “Mom/Dad,” and left other co-parent counseling directives intact; case remanded.
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| Contempt for unilateral baptism | Mother: Court may not curtail a parent’s religious upbringing absent showing of present or future physical/emotional harm | Father: Baptism was a major religious decision; shared legal custody required joint decision or court intervention; Mother knowingly violated the order | Affirmed: Mother knowingly violated shared legal custody by unilaterally baptizing the Child; contempt finding upheld |
| Requiring co-parent counseling as purge for contempt | Mother: Statutory contempt sanctions (23 Pa.C.S. §5323(g)) do not authorize counseling as a punishment | Father: Court may order counseling under custody authority (23 Pa.C.S. §5333) to serve the Child’s best interests | Vacated as purge condition: Counseling may be required as part of a custody order but cannot be imposed as a contempt sanction under §5323(g); remand for any sanction consistent with statute |
| Restriction preventing Child calling stepparent "Mom/Dad" | Mother: Order violates First Amendment and is a content-based restriction; no finding that the speech caused or will cause harm | Father: Restriction protects against parental alienation and preserves Child’s relationship with Father; serves Child’s best interest | Vacated: Restriction is content-based, subject to strict scrutiny, and court made no finding that such speech causes harm; not narrowly tailored |
| Limited sole legal custody for COVID-19 vaccination | Mother: (challenged trial court allocation in appeals) | Father: Should have decision-making authority for Child’s COVID-19 vaccination | Affirmed in part: The May 23, 2022 order granting Father limited sole legal custody on COVID-19 vaccination was part of the final order and was not disturbed by this opinion (overall order affirmed in part and vacated in part) |
Key Cases Cited
- J.M. v. K.W., 164 A.3d 1260 (Pa. Super. 2017) (elements required to prove contempt in custody cases)
- P.H.D. v. R.R.D., 56 A.3d 702 (Pa. Super. 2012) (standard of review for contempt findings)
- B.S.G. v. D.M.C., 255 A.3d 528 (Pa. Super. 2021) (shared legal custody does not grant unilateral final authority to one parent)
- Hicks v. Hicks, 686 A.2d 1245 (Pa. Super. 1996) (limits on judicial curtailment of parental religious instruction require showing of harm)
- Fatemi v. Fatemi, 489 A.2d 798 (Pa. Super. 1985) (parent-child relationship terms should not be weaponized by courts absent necessity)
- S.B. v. S.S., 243 A.3d 90 (Pa. 2020) (First Amendment scrutiny applies to custody orders affecting speech)
- Shepp v. Shepp, 906 A.2d 1165 (Pa. 2006) (state’s interest in protecting child’s physical and mental health)