Wednesday, December 07, 2005

custody - contempt - notice of hearing - due process

Everett v. Parker - Pa. Superior Court - December 7, 2005

http://www.courts.state.pa.us/OpPosting/Superior/out/s50045_05.pdf

Father filed contempt petition against mother alleging follow the existing custody order. Father did not serve mother with the petition or order for hearing. Rather, he mailed a copy of the petition and hearing order to a) her attorney in another case, by and b) a CYS worker who had been involved with the family.

The mother did not appear at the hearing. The attorney did not appear at the hearing. The CYS worker was present at the hearing and testified that she had given mother a copy of the petition and hearing notice the day before. The court felt this was "sufficient" service and went ahead with the hearing in mother's absence. The court found mother in contempt and transferred majority custody to father.

The appellate court held that service was improper and invalid under the relevant rules of court, Rule 1915.12(a), and due process principles. The notice to mother was "not meaningful" and violated her right to due process. The lower court's transfer of custody to father, absent proper notice to mother, was an abuse of discretion. The proper course would have been for the lower court to continue the case and direct father to make proper service, in the proper format.

Donald Marritz
MidPenn Legal Services

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