A lot of times when parents file petitions with the court regarding enforcing a custody order or contempt, they also want the court to adjust the custody order. Some think that the court can only change the custody order if a petition to modify custody is filed. That is not the case.
As long as the petition filed with the court (regardless of whether it is titled a “Petition to Modify Custody”) is clear that the parent wants to also adjust custody, a court may modify custody at the hearing on the petition. The reason behind this is whether the other parent was put on notice that the person filing the petition wants the court to potentially adjust the custody order. If the petition does not mention the filing party’s desire to have the court potentially change the custody order, the court should not adjust it. Why? Because all litigants should have notice regarding what the filing party is seeking the court to address (this is commonly referred to as due process).
The recent Pennsylvania Superior Court case of CAJ v. DSM, ___ A.3d ___, 2016 PA. Super. 40 (February 18, 2016) reiterated this issue.
Child custody and divorce attorney, Michael E. Bertin is a partner at the law firm of Obermayer Rebmann Maxwell & Hippel LLP. Mr. Bertin is co-author of the book Pennsylvania Child Custody Law, Practice, and Procedure. Mr. Bertin was selected by Best Lawyers in America and is a Fellow of the American Academy of Matrimonial Lawyers, a former Chair of the Family Law Section of the Philadelphia Bar Association, the current Co-Chair of its Custody Committee, and holds the officer position of Secretary of the Family Law Section of the Pennsylvania Bar Association. Mr. Bertin works out of Obermayer’s Philadelphia and Conshohocken, PA offices and he can be reached at 215-665-3280 or at email@example.com.