As I have said in this space before, I try to keep up with recent appellate decisions in the family law area, and some of the most interesting decisions from the Superior Court of Pennsylvania are those that are referred to as “unreported, non-precedential decisions.” The most recent of these is V.S.K. v. Y.V.K., 1536 MDA 2023; 1583 MDA 2023; 1668 MDA 2023; 1669 MDA 2023 (Pa. Superior, May 7, 2024).
This case comes from Cumberland County in central Pennsylvania and deals with the topic of parental alienation and what a court and, therefore, the legal system, can do about a situation that, unfortunately, comes up in my practice from time to time. The May 7, 2024, opinion is one that addresses four separate appeals filed pro se by the mother in a long and drawn-out custody case.
As the facts are recited by the Superior Court, the parties are the parents of two teenage children and have been in court over custody for almost eight years. The initial underlying custody order gave the parties a week on/week off shared physical custody schedule and shared legal custody. It appears that the father has filed at least five contempt petitions seeking to enforce the order and it also appears that the mother appeals every order entered by the trial court to the Superior Court, whether it is a final appealable order or not. The Superior Court notes 289 entries on the custody docket. The situation had gotten so bad that the Cumberland County Department of Children and Youth Services (CYS) got involved and successfully petitioned to have the children found “dependent.” Of course, the mother appealed that finding as well.
Factually, the situation is the children are not going to the father for his periods of physical custody. The father’s position, which has been adopted by the trial court and affirmed by the Superior Court, is that the mother and her family have conspired to prevent the father from exercising his rights to physical and legal custody of the children. The mother’s position is that the children are acting of their own volition and reacting to the father’s abusive, self-absorbed, and confrontational history with the mother and the two children themselves.
What is fascinating from the legal perspective is how the trial court deals with the situation. Any court wants its orders respected and followed. In this situation, that was not happening. As is noted above, this case has been going on for eight years and the father has filed at least five contempt petitions. The trial court went so far as to find the mother in contempt, fined her $500.00, assessed the father’s counsel fees, and sentenced her to six months incarceration at the county prison; however, the mother could purge herself from the contempt by having her children comply with the custody schedule.
What the mother would do is get the children to comply to the point where they would go to the father’s house for a few nights, the mother would be released from prison, and then the children would leave the father’s residence in the middle of the night. After a modification giving the father sole legal and physical custody and another round of the mother imprisoned for contempt, CYS had the children found dependent and placed them with a third-party caregiver.
While I have abbreviated the facts somewhat, my point is, when is enough, enough? The trial court’s stated purpose is to get this family into counseling to repair the relationship between the father and the children, but what counselor is going to fix this relationship? The mother is willing to sit in jail rather than have her children spend time with their father. The children sneak out of their father’s house in the middle of the night and run away. The court also notes that the children and the mother, knowing the mother is in contempt of the custody order, tried to live off the grid, having the shades and curtains drawn at all times, withdrawing the children from public high school, and enrolling in a cyber charter school. The father keeps paying a lawyer to successfully have the mother found in contempt of court and punished in accordance with the applicable statute.
We family law attorneys are taught that children grow up most well-adjusted when they have a healthy relationship with both parents, but what about those situations that are the extremes? Long ago, a psychologist, who is now semi-retired, told me that sometimes someone just needs to say “enough is enough;” how is it in a child’s best interest to have a mom in jail?
Is the mother in this situation right in acting in complete disregard of a series of court orders? No. Is the father right in enforcing those court orders to the point where the mother is sitting in prison? Maybe. Is the court right in sentencing the mother to prison knowing she will sit there like a martyr? Legally, yes; morally, maybe, but what other option does the judge have?
In closing, there are a few morals to this sad tale. First, no matter how good of a custody lawyer you hire and no matter how sympathetic the court, you still might not get what you want; we are lawyers, not miracle workers. The second point, related to the first, is that some situations are just impossible to resolve. Third point, when involved in any aspect of family law, when you, as a litigant, are confronted with a difficult situation, you need to ask yourself, “when is enough, enough?”
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