K.D. v. E.D – Pa. Superior – reported, precedential decision – November 16 2021
https://www.pacourts.us/assets/opinions/Superior/out/J-A15003-21o%20-%20104957126151766380.pdf?cb=1
In petition to modify in a custody case, neither res judicata nor collateral estoppel barred the trial court from considering current evidence that differed from findings from a hearing and decision from several years prior, especially considering the finding by the trial court that “the facts and circumstances surrounding this matter have changed significantly since the testimony and evidence was closed on Father’s last request for custody.”
Past findings v. current evidence -- Past findings of abuse by father did not preclude the trial court from modifying custody in 2020 based upon contemporary evidence that demonstrated that modification served the bests interests of the children. Hence, we reject Mother’s contention that the doctrine of collateral estoppel barred Father from litigating his petition for modification based upon current evidence. Phrased differently, “Past conditions have relevance in a custody modification proceeding only to the extent that such conditions have a current impact on the child.” 17 West’s Pa. Prac., Family Law § 28:17 (Joanne Ross Wilder, et al., 8th ed.) (footnote omitted) (citing In re Leskovich, 385 A.2d 373 (Pa.Super. 1978)). The certified record is replete with evidence of Mother’s alienation of Father under the pretense of protecting the children from abuse. In addition, the allegations that Father perpetrated sexual abuse were not substantiated in proceedings under the Child Protective Services Law.
+++++++++++
Denial of a right to visitation is rare.
Traditionally, the denial of a right to visitation is rare. Indeed, Pennsylvania Courts applying the former statutory regime routinely held, “A parent will be denied visitation only in those instances where the record shows that the parent is severely mentally or morally deficient so as to constitute a grave threat to the child's welfare.” Rosenberg v. Rosenberg, 504 A.2d 350, 352 (Pa. Super. 1986) (citing Niadna v. Niadna, 494 A.2d 856, 858 (Pa.Super. 1985) and Somers v. Somers, 474 A.2d 630, 631 (Pa.Super. 1984). However, the authority concerning a “grave threat” in relation to child custody precedes the effective date of the Child Custody Act, which does not specifically establish the “grave threat” standard. In M.J.M. v. M.L.G., 63 A.3d 331, 338 (Pa.Super. 2013), we held that judicially-created doctrines cannot be grafted on the best interest factors that the Legislature established in § 5328(a). See also D.R.C. v. J.A.Z., 31 A.3d 677, 688 (Pa. 2011) (Then-Justice, now-Chief Justice Baer, concurring) (observing, following the enactment of the Child Custody Act, “there is no need for any trial court to find a “grave” threat of harm.”).
The trial court engaged in a comprehensive best interest analysis pursuant to § 5328(a)(1)-(a)(16) before granting Father’s modification petition and fashioning a custody arrangement that permits supervised therapeutic visitation. The trial court’s analysis relative to whether Father currently presents a threat of harm to the children is careful, thorough, and reasonable, as shown by the evidence of record, and we discern no abuse of discretion.
