In M.O. v. F.W. (2012 PA Super 49, February 28, 2012), the Superior Court considered a case in which custody litigation began even before the child was born. Initially, the child’s mother exercised primary physical custody, and the father had partial custody for six overnights every two weeks (nearly an equal shared custody arrangement). When the child was two or three years old, Father accused Mother and her boyfriend of physically, emotionally, psychologically and sexually abusing the child. He petitioned for a modification of custody and filed a protection from abuse (PFA) action against the mother and her boyfriend on behalf of the child. In response, Mother filed a petition for contempt against Father for violating the joint legal custody provisions of the order by having the child medically examined and evaluated without mother’s knowledge or consent.
The case resulted in seven days of hearings. At the conclusion, the trial court awarded sole legal and physical custody to Mother, with supervised visitation to Father for two hours twice per week. Father’s visitation was supervised to avoid any further medical examinations or evaluations with Mother’s consent. The order was made final after Father filed motions to recuse the judge and for a mistrial. Father appealed.
On appeal, the Superior Court not only affirmed the custody order, but also applauded the trial judge for refusing to “allow such a blatant attempt of forum shopping to occur during a hotly contested custody battle” by denying the motion to recuse. “The record supports the conclusion,” the Court wrote, “that Father attempted to have the trial judge recuse herself after several days of testimony and his belief that the trial was not going his way. This manipulation of the court system cannot be allowed or encouraged.”
The Superior Court also affirmed the trial court’s consideration of a custody evaluation that was prepared at an earlier stage of the litigation, even though the author did not testify because the case settled before going to trial. The report was attached to a motion for fees, and referenced by several of the witnesses during the hearings that led to the appealed order. While the report of an expert who did not testify is generally not admissible into evidence, the Court held, Father waived his objection by calling witnesses to rebut the report. In fact, Father’s witnesses were the first witnesses to testify about the report. Judge Strassberger wrote a concurring opinion, expressing the belief that the report was not offered for the truth of its findings or opinions, but to make sense of testimony given by other witnesses. He also found that the error, if any, was harmless as the trial court did not rely on the expert report in its decision.
The result of this decision is striking and illustrative. A father who cried “Wolf!” was reduced to supervised visitation after having nearly equal shared custody for most of the child’s life.