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Superior Court Rules Custody Is Permanently Modifiable

In the case of In Re S.H., O.H. and N.H., 2013 Pa.Super.165, the decision of the Superior Court of Pennsylvania has potentially far reaching statewide ramifications regarding the relationship between an order of permanent legal custody from Dependency Court and a typical custody order from Family Court (Domestic Relations).

In S.H., the children-at-issue (“Children”) were initially committed to the custody of the Department of Human Services (“DHS”). After three years of hearings, DHS finally petitioned Dependency Court to award the Children to their maternal grandmother who was already serving as a kinship foster parent. DHS’ petition was granted and the maternal grandmother was awarded permanent legal custody. The legislature, through 23 Pa.C.S.A. Sec. 2511, statutorily created the method to terminate parental rights, which involves very specific procedures and legal requirements to do so. A key element to this case is the fact that the parental rights of the Children’s father were never terminated pursuant to 23 Pa.C.S.A. Sec. 2511 at any point in the litigation.

             Not long after the Dependency Court awarded the maternal grandmother permanent legal custody of the Children, the father of the Children pursued primary custody of them through a typical custody action. The procedural history which follows Father’s petition for custody is rather tangled and confusing, but ultimately, when the matter was finally appealed to Pennsylvania Superior Court, the question before it was a fairly simple one: can a parent seek primary custody once the Court enters an order for permanent legal custody in a dependency action?

The Child Advocates sought to quash the father’s petition to secure primary custody as, it argued, the Court had permanently decided custody when it entered an order of permanent legal custody. Further, the Child Advocates also argued that it was their goal to create a stable environment in which children can be reared and allowing continuing litigation after an apparently permanent order for legal custody has been entered, unnecessarily harms children by creating a potentially unstable environment and home life.

The Child Advocates argued, under the strength of 42 Pa.C.S.A. Section 6351(a), that a Court sitting in dependency has the jurisdiction and authority to enter a permanent custody order. Superior Court noted that the aforesaid statute authorizes a dependency court to terminate a dependency action through such a custody order, but it does not, necessarily, have to terminate the custodial rights of the parent(s) in order to do so. Instead, when considering permanent legal custody under the above statute, the Court weighs the options and arguments indicating whether a child’s current living situation warrants state involvement through subsidized permanent legal custody. Although it must determine what serves a child’s best interests, an order for permanent legal custody is appropriate as long as neither reunification with a parent or adoption by a non-parent are viable options at that time.

Over the course of this sort of matter, the Court will conduct periodic reviews into how the child-at-issue is faring. Contrary to the arguments presented by the Child Advocates, the Court ruled that the term “permanent” in the context of a dependency matter simply means discontinuing the supervision and involvement of the state regarding the custody placement for a child. The Court ruled that the statute does not confer or divest any custodial rights from parents, it simply identifies the proper venue for visitation and support matters following an order for permanent legal custody. This is especially true when, per the Court’s decision, the parental rights of the father were never terminated. Indeed, the Court added that absent an explicit order terminating parental rights pursuant to 23 Pa.C.S.A. Sec. 2511, a parent’s right to seek custody simply cannot be permanently deprived. Otherwise, the Court would have effectively used 42 Pa.C.S.A. Section 6351(a) to easily circumnavigate 23 Pa.C.S.A. Sec. 2511, and its procedural requirements, in order to achieve a de facto termination of parental rights, leaving 23 Pa.C.S.A. Sec. 2511 without functional purpose.

23 Pa.C.S.A. Sec. 2511 requires the termination of parental rights to meet the clear and convincing evidence standard, which is the highest civil burden of proof. It sets up procedural and substantive safeguards to protect parental rights, which are considered to be fundamental rights under law. Indeed, any infringement on the right to function as a parent requires strict scrutiny, which must be supported by a compelling, and narrowly tailored, state interest. These safeguards simply do not exist under the standards for awarding permanent legal custody as described above. Further, the Court noted that under both the previous and current custody law, the legislature clearly established a mechanism for a parent to modify custody at any time. In fact, the Court specifically stated that “[p]olicy considerations actually compel the opposite approach from that contended by the Child Advocates [described above]. We find no justification in keeping a child in a court ordered [permanent legal] custodial arrangement, typically subsidized at taxpayer expense, when a parent presents a plan which brings the child back in to the family unit and serves the child’s best interests.”

The Court addressed the Child Advocate’s very legitimate concern that allowing parents to pursue custody at any time could lead to a multiplicity of spurious custody actions. However, the Court went on to say that this concern does not outweigh the right of a parent to have some sort of custody over his child. In fact, the Court suggested that the current procedural hurdles a parent must go already through, including having to prove that a change in primary custody is in a child’s best interests, are sufficient to address this concern.


Therefore, the Court concluded, the intention of the legislature must be that 23 Pa.C.S.A. Sec. 2511 is the only process by which parental rights are terminated and not through a somewhat tortured interpretation of 42 Pa.C.S.A. Sec. 6351(a) which could serve as a virtual end-around 23 Pa.C.S.A. Sec. 2511. As a result, the Court found that neither the Juvenile Act nor the Adoption and Safe Families Act of 1997 prohibit a parent from petitioning the Court to secure custody of a child who is the subject of an award of permanent legal custody.

Originally published in The Legal Intelligencer on March 25, 2014 and can be seen here and reprinted in the Pennsylvania Family Lawyer, Volume 36, Issue No.: 1, April 2014 edition.

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One thought on “Superior Court Rules Custody Is Permanently Modifiable

  1. Pingback: A Collection of Family Law Writings by James W. Cushing, Esquire | judicialsupport

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