Every so often the appellate courts issue an opinion that is chocked full of issues and makes for interesting reading, at least for us family lawyers. One such opinion is Rogowski v. Kirven, 2023 Pa. Super. Lexis 75 (March 1, 2023). My law partner, Carolyn Mirabile, has already written a blog post on how this opinion addresses shared legal custody and religion. You can read that by clicking here. In this post I will address another issue in the opinion, what I call “frustration contempt”.
Over the years I have had a number of clients get into trouble with the courts for doing what they think is right. Honestly, I almost always agree with them. The situation starts like this, the parent with primary physical custody of a child knows that the child needs a certain service, be that service medical, psychological or educational. The service either is or is close to essential. For example, the child is a teenager and experiencing mental health issues. Either the child’s pediatrician or school are recommending a certain type of counseling. The other parent concedes that some form of intervention is necessary but will not agree to a specific counselor or program for the child. By definition, the parent with primary physical custody is spending the majority of the time with the child and is watching the child decompensate before his or her eyes. The parties, however, have shared legal custody.
When the primary custodial parent contacts the other parent, the second parent either does not respond or gives a non-committal answer, further frustrating the child’s situation because of the delay. So, what does the parent with primary custody do?
In my experience the parent with primary custody makes a few more attempts at getting an agreement from the other side and then, out of frustration, does what he or she believes is in the child’s best interest. By that I mean, the parent picks a counselor, service, or program on his or her own and proceeds without the other side’s agreement. Technically this is a violation of the second parent’s rights to shared legal custody and exposes the parent to a contempt petition and assessment of counsel fees, court costs and fines.
Carrying my example to the next step, as soon as the second parent does file a petition for contempt, what does the court do with that petition? While there is a legal standard for contempt of a custody order, the act constituting the alleged contempt needs to be knowing and willful. While some courts will allow some leeway and defer to the best interest of the child, technically the parent with primary physical custody is in contempt of the second parent’s rights to shared legal custody.
The Rogowski opinion addresses this issue. That opinion states that when there is an impasse, the party seeking to move forward needs to seek the court’s intervention on the issue. What that means is that the parent seeking the counselor, program or service needs to file for a modification of the existing custody order receive at least limited sole legal custody or obtain a specific order on the issue through Special Relief.
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