A common issue that faces family court judges and attorneys is whether a trial court can modify a child custody order when a matter before the court is not pursuant to a petition to modify custody. Oftentimes, this issue will present itself when a case is in court on a petition for contempt of a custody order or a petition to enforce a custody order. In the past, instances have arisen where trial courts have modified child custody orders when the issue before the bench was a contempt action. The line of cases that followed held that a trial court could not modify a child custody order if a petition to modify custody was not before it. Therefore, attorneys trained themselves to file both a petition for contempt and a petition to modify custody to be heard simultaneously in the event the relief sought would be to modify the custody order.
23 Pa.CS Section 5338 provides, in part: “Upon petition, a court may modify a custody order to serve the best interest of the child.” The statutory language was the genesis of the theory that a petition to modify was needed to modify a custody order. The roots of same are also based on due process rights. It would be a due process violation for a court to address an issue, such as modifying custody, where a litigant did not have notice that such action could be taken in court.
