J-A09019-21
2021 PA Super 111
E.C.S. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
M.C.S. :
:
Appellant : No. 1147 WDA 2020
Appeal from the Order Entered October 2, 2020
In the Court of Common Pleas of Butler County Civil Division at No(s):
F.C. No. 20-90090-C
BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*
OPINION BY KUNSELMAN, J.: FILED: MAY 28, 2021
M.C.S. (Father) appeals the consolidated order from the Butler County
Court of Common Pleas, which denied his request for custody modification,
but granted the request of E.C.-S. (Mother) to relocate to Somerset County
with their 6-year-old daughter, L.E.S., and 7-year-old son, M.R.S. (the
Children). Father claims, inter alia, the trial court erred when it declined to
interview the Children to obtain their preferences, pursuant to Pa.R.C.P.
1915.11 and the Child Custody Act. See 23 Pa.C.S.A. § 5328(a)(7); §
5337(h)(4). After careful review, we agree and vacate the order with
instructions.
The relevant factual and procedural history is as follows. The parties
married in 2003, and the Children were born in 2012 and 2014. During their
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* Retired Senior Judge assigned to the Superior Court.
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marriage, the parties relocated several times as they pursued various
education and employment opportunities. In spring 2017, the family resided
in Montgomery County. Following allegations of Father’s marital misconduct,
the parties separated and eventually divorced. In June 2017, the parties
agreed to a custody arrangement; they shared legal custody, while Mother
received primary physical custody, subject to Father’s partial physical custody,
which he exercised every other weekend and for two non-consecutive weeks
of summer vacation.
Thereafter, Mother and the Children moved across the Commonwealth
to Cranberry Township, Butler County. Father eventually moved to Harrisburg
for employment as a news producer. Although Father lived four hours from
the Children, he exercised his regular custody time. In April 2018, Father took
a job as a news producer in Cleveland, Ohio. The position was out of state,
but Father said he accepted the job because it was substantially closer to the
Children (the driving distance was reduced from four hours to two).
In February 2020, Mother filed a notice of proposed relocation. She
sought to move with the Children from Butler County to Somerset County to
live with her fiancé. Mother proposed keeping the primary/partial custody
arrangement the same, but she offered to do the extra driving so Father would
not be inconvenienced. Meanwhile, with the arrival of the Covid-19 pandemic,
Father’s employer allowed him to work remotely. In April 2020, Father moved
from Cleveland to Cranberry Township. In addition to objecting to Mother’s
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relocation, Father filed a cross-petition for modification, seeking shared
physical custody.
Father maintained he had been trying to live near the Children for years,
as demonstrated by his continued efforts to obtain employment closer to
them, and that his efforts were only impeded by the finite job opportunities
available in local television markets. Father also averred he was under
contract to work in Cleveland until May 2020, but that he did not renew his
contract so he could live in Cranberry permanently.
The trial court scheduled a consolidated hearing on the modification and
relocation petitions for July 2020. Father’s counsel served a subpoena upon
Mother, requesting that she make the 7-year-old, M.R.S., available for an
interview with the court so that the Child could give his preferences. See 23
Pa.C.S.A. § 5328(a)(7); see also 23 Pa.C.S.A. § 5337(h)(4). Prior to the
hearing, Father’s counsel motioned for an emergency continuance due to a
Covid-related matter. Counsel specifically requested the court not to
reschedule the hearing for certain August dates, because Father would be on
vacation with the Children. The court granted the continuance and
rescheduled the consolidated hearing for September 9, 2020, after Father’s
vacation. Although the court did not formally quash the subpoena, it struck
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from the proposed order the provision mandating the attendance of M.R.S.
See Order of Court, 7/27/20.1
Following the consolidated hearing, the court denied Father’s petition
for modification and granted Mother’s petition for relocation. See Order of
Court, 10/3/20. The court delineated its reasons for the decision from the
bench and issued additional findings contemporaneously with its custody
order. See Order of Court, 9/30/20. Notably, the court delineated its reasons
only for the relocation decision under Section 5337(h)(1)-(10) of the Child
Custody Act, and the court did not consider the Children’s preferences due to
their age.
Father timely filed this appeal. He presents the following issues, which
we reorder for ease of disposition:
1. Whether the trial court erred as a matter of law and
abused its discretion by failing to take testimony
relative to the well-reasoned preferences of the
Children, specifically M.R.S.?
2. Whether the trial court erred as a matter of law and
abused its discretion in finding that Mother’s proposed
relocation would not likely affect Father’s relationship
with the Children in light of Father’s petition to modify
custody filed shortly thereafter Mother’s notice of
proposed relocation?
3. Whether the trial court erred as a matter of law and
abused its discretion in finding that Father had ample
opportunity to relocate to Cranberry Township,
Pennsylvania prior to Mother’s proposed relocation
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1 At oral argument before this panel, Mother’s counsel indicated that, during
the presentation of the emergency motion, Mother opposed having the trial
court interview the Children.
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with the record testimony not supporting such a
finding?
Father’s Brief at 8 (capitalization adjusted).2
We begin by observing the relevant law governing this case. The Child
Custody Act contains two sets of factors the courts must consider, depending
on the type of action. See 23 Pa.C.S.A. § 5328(a)(1)-(16); see also 23
Pa.C.S.A. § 5337(h). Section 5328(a) provides: “In ordering any form of
custody, the court shall determine the best interest of the child by considering
all relevant factors, giving weighted consideration to those factors which affect
the safety of the child, including [factors 1 through 16.]” Id. We have held
the court must conduct a Section 5328(a) analysis when a party seeks to
modify the type of custody award. See A.V. v. S.T., 87 A.3d 818, 824 n.4
(Pa. Super. 2014); see also 23 Pa.C.S.A. § 5338 (“Modification of existing
order.”); and see 23 Pa.C.S.A. § 5323(a) (“Award of custody.”). Although,
when a party merely seeks modification of “a discrete custody-related issue”
a comprehensive Section 5328(a) analysis is not always necessary. See M.O.
v. J.T.R.,
85 A.3d 1058, 1063 (Pa. Super. 2014).
Separately, Section 5337(h) enumerates ten factors a court must
consider in determining whether to grant a proposed relocation, again giving
weighted consideration to those factors which affect safety. In cases like the
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2 Father withdrew the of question of “[w]hether the trial court erred as a
matter of law and [abused] its discretion in finding that [Father] agreed for
[Mother] to relocate to Cranberry Township, PA upon the parties’ initial
separation with record testimony not supporting such a finding.” See Father’s
Brief at 16.
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instant matter, where one party proposed relocation while the other sought
custody modification, we have held courts must consider both sets of custody
factors. See E.D. v. M.P., 33 A.3d 73, 82 (Pa. Super. 2011). Similarly, when
a proposed relocation necessarily involves the modification of the parties’
custody, courts must consider both sets of factors. A.V.,
87 A.3d at 824-824;
see also D.K. v. S.P.K.,
102 A.3d 467, 476-477 (Pa. Super. 2014)
(acknowledging several factors directly or implicitly overlap). Section
5328(a)(7) and Section 5337(h)(4) are virtually identical; both require the
court to consider the preference of the child. Finally, a trial court must
delineate the reasons for its decision, either on the record in open court or in
a written opinion or order, pursuant to 23 Pa.C.S.A. § 5323(d).
Here, the trial court necessarily had to consider the Section 5328(a)
factors, because Father sought to change his award from partial to shared
physical custody – as opposed to simply seeking to modify a discrete custody-
related issue. Moreover, the court also had to consider the Section 5337(h)
factors to adjudicate Mother’s request to relocate with the Children. And
finally, the court had to delineate its reasons as to both decisions.
In his first issue, Father notes the court failed to consider all the relevant
Section 5328(a) factors before denying his petition for modification. See
Father’s Brief at 12, 14. But Father narrows his appeal to one specific aspect.
He argues the court erred when it decided not to interview the Children –
especially the nearly-8-year-old M.R.S. – in order to ascertain the Children’s
well-reasoned preference, as mandated by Section 5328(a)(7). See id. at
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15. Father contends that the court’s decision not to conduct interviews of the
Children also rendered the court’s relocation decision erroneous for the same
reason. See id. at 12; see also Section 5337(h)(4). Thus, Father challenges
both decisions: the denial of his modification petition, and the grant of
Mother’s petition to relocate.
But before we reach the merits of this claim, we must determine
whether Father properly preserved the issue for our review. Mother argues
this issue was waived due to Father’s failure to object during the hearing.
Mother directs our attention to the end of the hearing when the court asked
Father if there was anything else, and Father responded that he had no other
witnesses. See Mother’s Brief at 8-9; see also N.T., 9/9/20, at 278.
Father concedes he did not object at the hearing, but he claims the issue
was preserved by virtue of his objection during the presentation of his
emergency motion for a continuance. There, following oral arguments, the
court struck from Father’s proposed continuance order his specific request that
M.R.S. attend the hearing. Father argues the court’s removal of this provision
effectively quashed his subpoena of M.R.S.
Perhaps it would have been prudent of Father to make another formal
objection at the hearing to ensure the issue was preserved; typically, the
failure to do so constitutes waiver. See Pa.R.A.P. 302(a) (“Issues not raised
in the lower court are waived and cannot be raised for the first time on
appeal.”). Here, however, during the presentation of Father’s motion for a
continuance, the court decided to preclude both Children from testifying. That
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is, the court ruled to exclude evidence. In such instances, our Rules of
Evidence provide, “[o]nce the court rules definitively on the record – either
before or at a trial – a party need not renew an objection or offer of proof
to preserve a claim of error for appeal.” Pa.R.E. 103(b) (emphasis added).
We conclude Father preserved the question of whether the court erred when
it declined to interview the Children to obtain their preferences. We turn now
to the merits of that issue.
The trial court defended its decision to forgo interviews, reasoning that
Pennsylvania Rule of Civil Procedure 1915.11 does not mandate courts
interview children in custody matters, and that such decisions are
discretionary. See Trial Court Opinion (T.C.O.), 12/7/20, at 2-3. The court
opined it chose not to conduct interviews, because they would cause the
Children to experience stress and confusion due to their ages. Mother concurs
with this conclusion.
Because Father claims, in part, that the court’s application of Rule
1915.11 constituted a legal error, we identify the appropriate scope and
standard of review:
The interpretation and application of a statute is a question
of law that compels plenary review to determine whether
the trial court committed an error of law. As with all
questions of law, the appellate standard of review is de novo
and the appellate scope of review is plenary.
B.K.M. v. J.A.M., 50 A.3d 168, 172 (Pa. Super. 2012) (citations omitted).
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Rule 1915.11 (“Appointment of Attorney for Child. Interview of Child.
Attendance of Child at Hearing or Conference.”) provides in relevant part:
(b) The court may interview a child, whether or not the child
is the subject of the action, in open court or in chambers.
[…]
(c) Unless otherwise directed by the court, the child who is
the subject of the action shall not be required to attend a
hearing before the court or a conference.
Note: A party may bring a child to a conference or hearing
but, in the absence of an order of court, is not required to
do so.
Pa.R.C.P. 1915.11(b)-(c) (emphasis added).
The Comment to this Rule makes its purpose explicit:
[T]he presence of a child in court is not always necessary or
desirable. The experience may be traumatic and disruptive.
Consequently, the child should not be required to attend a
hearing or conference in every case. When the presence of
a child is required and the custodial party does not
voluntarily bring the child, the court may issue an order for
the child's attendance.
See Domestic Relations Committee Explanatory Comment to Pa.R.C.P.
1915.11 (1991).
Application of this Rule has been the source of increasing litigation in
recent years. In order to fully address the merits of Father’s claim, we must
first clarify the standard by which we review a trial court determination made
pursuant to Rule 1915.11.
The most relevant of our recent decisions is T.D. v. E.D., 194 A.3d 1119
(Pa. Super. 2018). In T.D., the father argued the trial court erred when it did
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not interview his 8-year-old child to obtain the child’s preference under
Section 5328(a)(7). The underlying issue in that case was the logistics of the
parties’ custody exchange – whether the child should be permitted to fly
unaccompanied between the father’s home in Boston and the mother’s home
in Philadelphia. The trial court chose not to interview the child, assuming
instead – based on the parents’ testimony – that child would prefer to fly
unaccompanied. Thereafter, the court assigned this presumed preference
little weight and concluded that the child was not old enough to fly
unaccompanied for safety reasons (e.g., what happens if the plane needed to
be diverted to another airport). T.D., 194 A.3d at 1125-1126. On appeal, the
father’s argument was that, if only the trial court had seen the child and heard
his preference during an interview, the court’s safety concerns would have
been allayed. We concluded the court did not abuse its discretion.
Id. at
1127.
In reaching this conclusion, we observed the trial court’s rationale
underlying its decision to forgo the child interview; the trial court held that
“[t]he plain language of Rule 1915.11 makes interviewing a child in a custody
proceeding optional.” Id. at 1126 (quoting the trial court’s Rule 1925(a)
opinion) (emphasis original). However, this was not our holding, and any
reference to trial court’s rationale must be viewed in the context of our prior
precedent, Bovard v. Baker,
775 A.2d 835, 840 (Pa. Super. 2001).
In Bovard, we concluded that the trial court’s decision not to interview
the children was an abuse of discretion. We first explained, while a child’s
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preference is not controlling, the preference does “constitute an important
factor that must be carefully considered” in determining the child’s best
interests. Id. (citing McMillen v. McMillen,
602 A.3d 845, 847 (Pa. 1992)).
We opined, “[g]iven the trial court’s conclusion in this case that both parents
were equally loving and capable…the custodial preferences of the children may
‘tip the evidentiary scale’ in favor of one parent or the other.” Bovard,
775
A.2d at 841. We ultimately held the “court abused its discretion by concluding
that interviews with or testimony from the children was unnecessary.”
Id.
In deciding T.D., we noted that trial court explicitly distinguished its
facts from those in Bovard:
[T]he issue [in T.D.] was not whether the child preferred to
live with a particular parent, nor did the issue here involve
a ruling that would materially alter the current custody
arrangement. On the contrary, the court here decided a
discrete and narrow issue[,unaccompanied air travel, which
was] ancillary to an otherwise-undisputed custody
arrangement pertaining to a single eight-year-old child.
T.D., 194 A.3d at 1126-1127 (quoting the trial court’s Rule 1925(a) opinion).
We approved of this distinction and agreed that the court’s decision was
not unreasonable “in light of the narrow scope of the issue.” Id. at 1126
(emphasis added). By noting the narrow scope of the issue and the trial
court’s distinction from Bovard, we implicitly acknowledged “[i]t is beyond
the power of a Superior Court panel to overrule a prior decision of the Superior
Court, except in circumstances where intervening authority by our Supreme
Court calls into question a previous decision of this Court.” Commonwealth
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v. Summers, 245 A.3d 696, 700 (Pa. Super. 2021) (citations omitted). Thus,
notwithstanding our reference to the trial court’s use of the term “optional” to
describe the court’s flexibility to conduct interviews, T.D. does not stand for
the proposition that Rule 1915.11 provides a court carte blanche to decide
whether to interview the child. Rather, this Court held the trial court must
have “ample reasons for its decision not to interview the child.” See T.D.,
194
A.3d at 1126 (citation omitted).
Since we decided T.D., there have been other instances where the court
properly declined to interview the child. Although none have binding
authority, all have persuasive value.3 See, e.g., A.M. v. J.L.H., -- A.3d. --,
2021 WL 929954 (Pa. Super. 2021) (non-precedential decision) (holding that
an interview was unnecessary where the purpose of the hearing was to
determine whether the mother’s boyfriend could be present during the
mother’s custody time, where the child had not seen the boyfriend in years,
and where there was no reason to believe that the child would know whether
the boyfriend remained sober or posed a safety risk.); see also K.L.C.S. v.
D.W.S.,
245 A.3d 1071 (Table),
2020 WL 7353815 (Pa. Super. 2020) (non-
precedential decision) (holding that the mother did not submit an offer of proof
of what relevant testimony she expected to elicit from the interview, or how
____________________________________________
3 Pursuant to 210 Pa. Code. § 65.37 (Non-Precedential Decisions (formerly
titled Unpublished Memoranda Decisions), non-precedential decisions filed
after May 1, 2019, may be cited for their persuasive value. See also Pa.R.A.P.
126(b).
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the testimony would be germane to the matters before the court, nor did
either parent ask for a child interview.); and see E.H. v. Y.R., 241 A.3d 430
(Table),
2020 WL 6106650 (Pa. Super. 2020) (non-precedential decision)
(holding that the court did not err when it declined the interview, where
neither party requested the court interview the children to better discern their
preferences.).4
Therefore, we clarify that, while Rule 1915.11 provides the trial court
with the option of whether to interview the child, its decision is still subject to
our review for an abuse of discretion. Although the presence of a child “is not
always necessary” and while “the child should not be required to attend a
hearing…in every case,” see Comment to Rule 1915.11, it follows that there
are some instances where the court’s failure to interview the child constitutes
an abuse of discretion. See also Bovard, supra.
Upon our review of the relevant precedents and persuasive authorities,
it is apparent the court will not abuse its discretion when it forgoes a child
interview, in cases involving only a narrow or discrete, custody-related issue,
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4 The trial court relied on M.D. v. A.D., -- PA. Super. --, 2018 WL 4346821
(Pa. Super. 2018) (non-precedential decision). This case holds neither binding
authority, nor persuasive value. Even if M.D. had value, we would note first
that the child interview issue was waived and the merits were never reached.
To the extent we would contemplate the dicta, we would note further that
M.D. involved domestic violence and alcohol abuse, which made the court to
determine that an interview would cause the child undue stress; and even
then, the court still ascertained the child’s preference via hearsay statements
made to the expert custody evaluator, who testified at the hearing. M.D. at
*5.
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as opposed to a material change in the custody award. See T.D., 194 A.3d
at 1126-1127 (relating to unaccompanied travel); see also
A.M., supra
(relating to the presence of the mother’s boyfriend during her custody time).
After all, when the trial court resolves a “discrete, custody-related issue,” we
have held that a complete Section 5328(a) analysis is not always necessary.
See M.O.,
85 A.3d at 1063. Similarly, we have found discretion is not abused
when neither party seeks an interview. See K.L.C.S., supra; and see E.H.,
supra.
Conversely, when a party explicitly requests the interview, in a case
involving a substantive custody award or a material change from the custody
arrangement, the court runs the risk of abusing its discretion when it declines
to interview the child. See Bovard, supra. But even in such cases, courts
may decline the interview if there are ample reasons why the experience
would be traumatic or disruptive to the child. See Comment to Rule 1915.11;
see also T.D.,
194 A.3d at 1126.
In reaching such a conclusion, we are cognizant of our role as an error-
correcting court and that “[i]t is not the prerogative of an intermediate
appellate court to enunciate new precepts of law or to expand legal doctrines.”
Matter of M.P., 204 A.3d 976, 986 (Pa. Super. 2019). Rather, “we are
obliged to apply the decisional case law as determined by the Supreme Court
of Pennsylvania.”
Id. Absent further guidance from our Supreme Court or an
en banc panel of this Court, we must construe T.D. to be in line with Bovard.
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Having clarified that a court’s decision to decline a child interview, over
objection, is subject to appellate review for abuse of discretion, we may now
decide whether discretion was abused in this case. To do so, we start by
acknowledging the pertinent scope and standard of review:
In reviewing a custody order, our scope is of the broadest
type and our standard is abuse of discretion. We must
accept findings of the trial court that are supported by
competent evidence of record, as our role does not include
making independent factual determinations. In addition,
with regard to issues of credibility and weight of the
evidence, we must defer to the presiding trial judge who
viewed and assessed the witnesses first-hand. However, we
are not bound by the trial court's deductions or inferences
from its factual findings. Ultimately, the test is whether the
trial court's conclusions are unreasonable as shown by the
evidence of record. We may reject the conclusions of the
trial court only if they involve an error of law, or are
unreasonable in light of the sustainable findings of the trial
court.
S.T. V. R.W., 912 A.3d 1155, 1160 (Pa. Super. 2018) (citation omitted).
With the appropriate standard in mind, we note the court’s broad
rationale for rejecting Father’s request that the court interview the Children.
Relying on Pa.R.C.P. 1915.11, the trial court explained:
In this case, the undue stress of the Children would suffer
by being interviewed by the court was not outweighed by
the persuasiveness of their potential testimony. While the
well-reasoned preference of the child is one of the sixteen
custody factors, it is not the only factor. It was an irrelevant
factor in this case due to the Children’s young ages and their
presumed inability to make a well-reasoned preference. The
evidence on the record from the adult witnesses who
testified support the court’s decision. There was no
legitimate evidentiary reason to subject these Children,
ages 6 and 7, to an interview in chambers. Any testimony
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from the Children would have caused undue stress and
confusion due to their young ages and would not have
impacted the decision of this court. Interviewing the
Children in this case was not in their best interest, which is
why the court used its discretion by not interviewing them.
Trial Court Opinion (T.C.O.), 12/7/20, at 3 (capitalization adjusted).
The court’s explanation included several reasons for not interviewing the
Children. The court determined: 1) that the potential testimony would have
been irrelevant; 2) that, due to their age, the Children’s preferences would
not have impacted its decision; 3) that the Children would have been unable
to articulate a preference; and 4) that Children would experience stress and
confusion if they were interviewed. We discuss each reason in turn.
First, the court concluded the Children’s preferences were “irrelevant”
due to their age, and opined “[t]here was no legitimate evidentiary reason to
subject these Children…to an interview in chambers.” See T.C.O., at 3; see
also Findings of Fact and Discussion, 9/30/20, at 13 (“Due to the Children’s
age and maturity, the court did not consider a preference, if any, of the
Children.”). However, the Child Custody Act makes clear such a preference is
per se relevant to the substantive questions of custody and relocation. See
23 Pa.C.S.A. § 5328(a)(7) (“[T]he court shall determine the best interest of
the child by considering all relevant factors, including…[(a)(7)].”)
(emphasis added); see also 23 Pa.C.S.A. § 5337(h)(4) (“In determining
whether to grant a proposed relocation, the court shall consider the following
factors…[(h)(4)]) (emphasis added).
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As we discussed above, there are instances where a child’s testimony is
not relevant, but those cases concern ancillary issues. In T.D., supra, the
child’s potential testimony on preference was largely irrelevant to whether
unaccompanied air travel was safe for an 8-year-old; and the air travel issue
was a discrete, custody-related issue. Likewise, in
A.M., supra the potential
testimony concerned the custody-related issue of mother’s boyfriend. The
proffered testimony of those respective children had little to do with a
preferred, substantive custody award.
By comparison, the instant matter involved two substantive custody
decisions: whether to increase the amount of custody time with Father; and
whether to grant Mother’s request to relocate. Even young children are able
to express their likes, dislikes, apprehensions, and other relevant information
insofar as it relates to custody and relocation; i.e., whether they like their
school and their routines, whether they have friends, or partake in
extracurricular or community activities – or in this case, whether they have
enjoyed having Father live close by for nearly the first time in their memory.
We have recognized, “[p]lacing a child in a position of feeling like he or
she has to choose or opine even a discrete custody matter could aggravate
relationships to the detriment of the child’s best interests.” T.D., 194 A.3d at
1126 (quoting the trial court’s Rule 1925(a) opinion). Yet, the courts should
not discount the ways in which an interview of even a young child might be
beneficial. The interview is an opportunity for the court to learn what, in the
child’s view, is the most important aspect of the custody award. Courts have
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also used their interactions with the child to promote understanding among
the parties, thereby reducing the temperature of the litigation. And, as we
stated above, the child’s preference could “tip the evidentiary scale” of the
entire decision. Bovard, 775 A.2d at 841. Here, Father recognizes the
Children’s preferences might not alter the court’s ultimate modification and
relocation decisions; nevertheless, he believed their preferences could be
dispositive. The court must not reflexively foreclose that possibility.
The trial court’s second reason for declining to interview the Children
was that their potential preferences “would not impact its decision.” See
T.C.O. at 3. The court presumed that, whatever the Children’s preferences,
they would not be persuasive. In effect, the court prejudged the weight of
the evidence, without first ascertaining what the evidence was. To be sure,
even before a child’s preference is considered next to the litany of the other
factors, the preference is first couched by the child’s own level of maturity.
See 23 Pa.C.S.A. § 5328(a)(7) (“The well-reasoned preference of the child,
based on the child’s maturity and judgment.”) (emphasis added); see also
23 Pa.C.S.A. § 5337(h)(4) (“The child’s preference, taking into consideration
the age and maturity of the child.”) (emphasis added). Still, the court must
first ascertain what the preference is, prior to placing the child’s preference
into the context of the child’s age and reasoning.5
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5 Mother argues that we must defer to the trial court on weight issues, in
adherence to our abuse of discretion standard. See Mother’s Brief at 7. While
(Footnote Continued Next Page)
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The third reason the court found the interviews unnecessary was the
Children’s “presumed inability to make a well-reasoned preference.” See
T.C.O. at 3. Indeed, some children, due to their young age or other reason,
might be unable to express themselves or to understand the duty to tell the
truth. In these cases, the children would not be competent witnesses. See
Pa.R.E. 601(b)(2), (4). However, the trial court never inquired whether these
Children would be incompetent.6
The final reason the court advanced was that interviews would cause
the Children to experience undue stress and confusion. See T.C.O. at 3. As
the Explanatory Comment to Rule 1915.11 makes clear, courts should
consider whether an interview might be “traumatic and disruptive” when
determining whether the interview is “necessary or desirable.” For this
reason, the “traditional rules of evidence have also been relaxed to some
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we defer to the trial courts on such issues, we do so when the “trial judge who
viewed and assessed the witnesses first-hand.” S.T. V. R.W., 912 A.3d at
1160. Here, however, the trial court never viewed the Children at all.
6 We also find instructive our Supreme Court’s decisions concerning children’s
preferences in cases involving the termination of parental rights pursuant to
the Adoption Act. See 23 Pa.C.S.A. §§ 2101-2938. That context concerns
whether a conflict exists between the child’s preferred outcome and the child’s
best interests. See In re Adoption of L.B.M., 161 A.3d 172, 180 (Pa. 2017)
(concerning the appointment of counsel under 23 Pa.C.S.A. § 2313(a)). The
High Court declined to impose an age presumption to resolve the question of
how young is too young to have a preferred outcome. Instead, the Court held
that if the child was able to verbalize a preference, that child’s preference had
to be given legal effect. See In re T.S.,
192 A.3d 1080, 1092-1093 (Pa.
2018). That issue is different from the instant question of whether the child
is competent to testify during an interview. Still, it is helpful to recognize that
elsewhere in the law, the preference of even a very young child is considered.
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extent in custody matters […].” Comment to Pa.R.E. 101. (“Scope; Adoption
and Citation.) (discussing the court interrogation of a child under Pa.R.C.P.
1915.11(b)).
Thus, a child’s preference might be elicited another way, e.g., through
stipulated hearsay statements or the parties’ averments. There are still other
mechanisms, both formal and informal, to alleviate the “traumatic and
disruptive” nature of court attendance without having to sacrifice the child’s
preference. The trial judge could conduct the interview without wearing the
judge’s robe or schedule the interview in chambers or at the end of the day,
which ensures the child is out of school and that the courthouse has less
traffic. Rule 1915.11(a) also authorizes the court to appoint sua sponte an
attorney to represent the child’s interests. Rule 1915.11-2 authorizes the
court to appoint sua sponte a guardian ad litem.
We understand the court’s concern for the Children. And we
acknowledge there are situations when a child’s testimony is unnecessary in
relation to the narrowness of the issue or otherwise disfavored due to the
harrowing nature of the case. We will not disturb a court’s decision to forgo
the interview, upon ample reasons supporting that decision. Here, however,
the court conducted no inquiry as to whether or why these Children would face
trauma if they were asked to testify, other than noting the Children’s ages.
Without more, and over the objection of a parent, we conclude the court’s
decision to forgo the interviews, based solely on these Children’s ages,
constituted an abuse of discretion.
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In sum, the trial court’s conclusions were unreasonable as shown by the
dearth of evidence of record. None of the reasons offered by the trial court
justifies its decision to forgo interviewing the Children, over Father’s objection,
in this case. The potential testimony would have been relevant to the court’s
substantive custody decisions. The record does not indicate the Children’s
ages would have rendered them incompetent witnesses. Nor does the record
indicate reasons how or why the Children would have experienced trauma.
Having clarified that we review determinations about whether to conduct a
child interview for an abuse of discretion, we conclude the court did so abuse
its discretion here.
We vacate the order denying modification and granting relocation and
remand for further proceedings. We instruct the trial court to conduct a full
analysis of the Section 5328(a) factors, including the preferences of the
Children under Section 5328(a)(7), before reaching a decision on Father’s
petition for modification. Similarly, we instruct the court to consider the
preferences of the Children under Section 5337(h)(4) before reaching a
decision on Mother’s proposed relocation. The court shall supplement the
record by conducting an evidentiary hearing to ascertain the Children’s
preferences, in some fashion. If the court is still disinclined to interview the
Children in order to obtain their preferences, based upon the belief that an
interview would be traumatic or disruptive, the court shall inquire into the
reasons why these Children would experience trauma, apart from their age
alone, and ensure its findings are made part of the record.
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In light of this disposition, we decline to address Fathers remaining
issues.
Order vacated. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/28/2021
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