Prior to the enactment of the Child Custody Act in 2012, if a party in child custody matter acted in a manner that was obdurate, vexatious, dilatory, or in bad faith, a request for counsel fees was generally sought under the Judicial Code at 42 Pa.C.S.A. Section 2503. However, with the enactment of the Custody Act, 23 Pa. C.S.A. Section 5339 enabled the court to award counsel fees to a party if the court found the conduct of another party was obdurate, vexatious, repetitive or in bad faith. The enactment of Section 5339 was well received, as it is the belief of many that repetitive litigation is not in the best interest of the child. As a reminder, the best interest of the child is the foundation of child custody law in Pennsylvania. With the enactment of Section 5339, there was now a specific avenue that a practitioner could take to combat a "frequent flyer" who constantly drags the other party back to court with filing after filing.

The first reported appellate case addressing the application of Section 5339 was the case of Chen v. Saidi, 100 A.3d 587 (Pa. Super. 2014). In the Chen case, the father filed seven petitions over seven years. The trial court, in that case, awarded counsel fees because of the father's repetitive filings. However, the Pennsylvania Superior Court reversed the trial court because it found that "each petition sought distinct relief pertaining to a variety of legitimate issues that typically arise in a custody matter." In Chen, the Superior Court held that it could not be found that each petition was without relative merit. Additionally, the Superior Court stated that there was no indication that any of the filings affected the child's best interest. Of those petitions, in the Chen case, one was resolved by agreement and another was granted in part. Since the Chen case, the courts have taken a similar approach.