J-E03001-15


                               2016 PA Super 24

AMY HUSS                                         IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellant

                     v.

JAMES P. WEAVER

                          Appellee                    No. 1703 WDA 2013


            Appeal from the Order Entered September 25, 2013
            In the Court of Common Pleas of Washington County
                     Civil Division at No(s): 2013-1209


BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J.,
        SHOGAN, J., LAZARUS, J., OTT, J., STABILE, J., and JENKINS, J.

DISSENTING OPINION BY JENKINS, J.:               FILED FEBRUARY 05, 2016

      I respectfully dissent. I would affirm the trial court’s order sustaining

James P. Weaver’s preliminary objections and dismissing Amy Huss’s

complaint seeking enforcement of the parties’ agreement. Although rights

involving child custody and visitation belong to the parents, these rights are

limited to those which serve the best interest of the child. A child has a right

to a custody arrangement that meets his or her best interests. In my view,

a contractual provision that potentially hinders or chills an interested party’s

ability to ensure a custody arrangement that is in the child’s best interest is

against public policy and unenforceable.

      In   October   2008,    Huss    and   Weaver   entered   into   a   contract

(“Agreement”) which outlined the custody and visitation rights of their

potential future children. The Agreement provided that if Weaver sought to
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modify the contract terms, he would be required to “pay Huss $10,000.00

for each modification or amendment sought.” Amended Complaint, 4/19/13,

at ¶ 3 (Exhibit A).

      In November of 2010, the parties’ son was born. In December 2010,

Weaver filed a complaint for custody. In March 2013, Huss filed a complaint

alleging Weaver breached the 2008 contract.         Weaver filed preliminary

objections. Huss filed an amended complaint and Weaver filed preliminary

objections to the amended complaint arguing, inter alia, that the provision

requiring Weaver to pay Huss $10,000.00 for each modification or

amendment of custody sought violated public policy. The trial court granted

Weaver’s preliminary objections and dismissed Huss’s complaint.          The

majority reverses this determination.

      In Knorr v. Knorr, the Pennsylvania Supreme Court held:

         Parties to a divorce action may bargain between
         themselves and structure their agreement as best serves
         their interests, [Brown v. Hall, 435 A.2d 859 (Pa.1981)].
         They have no power, however, to bargain away the rights
         of their children, [Sonder v. Sonder, 549 A.2d 155
         (Pa.Super.1988)]. Their right to bargain for themselves is
         their own business. They cannot in that process set a
         standard that will leave their children short. Their bargain
         may be eminently fair, give all that the children might
         require and be enforceable because it is fair. When it
         gives less than required or less than can be given to
         provide for the best interest of the children, it falls under
         the jurisdiction of the court’s wide and necessary powers
         to provide for that best interest. Id. It is at best advisory
         to the court and swings on the tides of the necessity that
         the children be provided. To which the inter se rights of
         the parties must yield as the occasion requires.



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588 A.2d 503, 505 (Pa.1991) (footnotes omitted).         In Knorr, the Court

found it was not bound by the parties’ agreement regarding child support

payments. Id. at 505.

       Equally as important to a child as monetary support, if not more so, is

a custody arrangement that meets his or her best interests.        Parents are

free to enter into agreements regarding custody and visitation. 1    Miller v.

Miller, 620 A.2d 1161, 1165-66 (Pa.Super.1993). However, a court is not

bound by, and may set aside, such agreements.           Id.   In child custody

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1
  This Court has described the usefulness of private custody arrangements
as follows:

          First, most parents genuinely love their children, and it is
          reasonable to assume that the children’s welfare is a vital
          consideration in the parents’ decision to resolve their
          dispute by agreement. One major reason that parents
          agree on custody is to spare their children the trauma
          inherent in an adversarial hearing. Second, parents have
          a better informational base upon which to make a decision
          about custody. The adversarial process is an inadequate
          means to assemble sufficient ‘facts’ to resolve custodial
          disputes satisfactorily. Third, it is difficult to protect a
          child from the painful pull of divided loyalties when his
          parents fail to agree.      Parental agreements help to
          preserve an atmosphere of at least superficial peace
          between parents and thereby facilitate a much easier and
          more meaningful future relationship between the child and
          the non-custodial parent.

Miller, 620 A.2d at 1164 (quoting Witmayer v. Witmayer, 467 A.2d 371,
374-75 (Pa.Super.1983)).        Accordingly, the policy reasons that courts
promote private agreements regarding custody include that the parents are
likely to act in the best interests of the child and that it is in the best
interests of the child to have an amicable resolution.



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proceedings, courts are charged with the task of designing a custody

arrangement that is in the child’s best interest. 23 Pa.C.S. § 5328(a) (“[i]n

ordering any form of custody, the court shall determine the best interests of

the child by considering all relevant factors, giving weighted consideration to

those factors which affect the safety of the child”). The focus is on the child,

not the parent. See id. Further, it is axiomatic that in child custody and

visitation matters, “the paramount concern is the best interests of the child.”

J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa.Super.2011) (quoting Durning v.

Balent/Kurdilla, 19 A.3d 1125, 1128 (Pa.Super.2011)); see also Dorsey

v. Freeman, 652 A.2d 352, 353 (Pa.Super.1994) (determination of “what

will serve the best interests of the child . . . may never be subordinated to

other   considerations   such   as   ‘fundamental   rights   and   fair   play.’”);

Nonnenman v. Elshimy, 615 A.2d 799, 801 (Pa.Super.1992) (“in matters

of custody and visitation, the ultimate consideration for the court is a

determination of what is in the best interest of the child, and all other

considerations are deemed subordinate to the child’s physical, intellectual,

moral, and spiritual well-being”); Mumma v. Mumma, 550 A.2d 1341,

1343 (Pa.Super.1988) (“although entitled to be considered, [private custody

agreements] must always give way where the best interests of the child

suggest an alternate custody arrangement”); Com. ex rel. Doberstein v.

Doberstein, 192 A.2d 154, 156 (Pa.Super.1963) (“It is basic and

fundamental that the paramount consideration is the welfare of the children

and that all other considerations, including the rights of parents, are

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subordinate to the children’s physical, intellectual, moral, spiritual and

emotional well[-]being.”).2

       Both the courts and the Commonwealth have a duty to ensure a child’s

best interests are met by any custody agreement. We have found that it is

a court’s “responsibility to look to the best interest of the child” and the

court’s “duty to protect the rights and interests of children” when called

upon to determine a custody issue.               Miller, 620 A.2d at 1164, 1165.

Further, the Commonwealth “is charged with the duty of protecting the

rights and interests of the children.”3 Miller, 620 A.2d at 1165 (quoting In

re Williams L., 383 A.2d 1228 (Pa.1978)).

       A contractual provision that impedes the trial court’s ability to review a

custody or visitation arrangement is against public policy and unenforceable.

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2
  A parent has a fundamental right to make “decisions concerning the care,
custody, and control of [his or her] children.” In re S.H., 71 A.3d 973, 980
(Pa.Super.2013). This does not mean, however, that only a parent has a
right to custody and visitation. A parent can lose his or her right if it would
not be in the best interest of the child, i.e., the child’s right to live in an
environment that provides for his or her best interests can outweigh a
parent’s custody rights. See id. (“fundamental right of parents to the care
and custody of their children when that care and custody serves the
best interests of the children” (emphasis provided)).
3
  “The source of the state’s authority to intervene in family matters to
protect minor children has been said to be the doctrine of parens patriae,
the concept that the sovereign is the father of his country.” In re Williams
L., 383 A.2d at 1235-36.      This authority would not apply to a typical
custody arrangement, but it supports the strong public policy of
Pennsylvania to promote custody arrangements that are in a child’s best
interests.



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Cf. Kraisinger v. Kraisinger, 928 A.2d 333, 345 (Pa.Super.2007) (contract

provision invalid where it “penalizes mother for, and therefore would act to

discourage her from, seeking a court’s review of the parties’ agreement as to

child support”); see also Ferguson v. McKiernan, 940 A.2d 1236, 1245

n.16 (Pa.2007) (a contract is against public policy where the policy “is so

obviously for or against the public health, safety, morals or welfare that

there is a virtual unanimity of opinion in regard to it, that a court may

constitute itself the voice of the community in so declaring [that the contract

is against public policy].”)

      The majority attempts to distinguish Knorr.        It reasons that Knorr

addressed a child’s right to adequate child support payments and, unlike

child support payments, any right to custody and visitation belong to a

parent, not a child. Majority, at 9-10. However, as stated above, the right

of parents to craft a custody arrangement is always subject to the child’s

right to a custody plan that serves the child’s best interests.     There is no

reason to treat custody actions differently than child support actions, as the

goal of both is to ensure that a child’s best interests are met. Miller, 620

A.2d at 1166 (finding the Supreme Court of Pennsylvania’s determination of

“court’s role in enforcing [child support] agreements equally applicable to

custody matters”); see also Knorr, 588 A.2d at 508 (noting that when a

child support agreement “gives less than required or less than can be given

to provide for the best interest of the children, it falls under the jurisdiction

of the court’s wide and necessary powers to provide for that best interest”).

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       The   majority asserts the          “issue   of whether   a provision   in a

custody/visitation contract that places a serious impediment on either

party’s ability to seek court modification in the best interest of the child is

not presently before this Court.”         Majority Opinion at 12.   It reasons the

contract does not provide that the provision is intended to discourage

Weaver from seeking intervention or that the payment would act as an

impediment to his ability to do so. Id. The majority claims whether it would

be an impediment would depend on Weaver’s ability to pay the $10,000.00

fee.   Id.   The majority notes the contract states Weaver is “an attorney

capable of earning a large salary,” Weaver recognized the Agreement’s

terms were “fair, just, and reasonable,” and he agreed that he voluntarily

executed the agreement. Id. The majority further notes that it is unclear

whether the parties intended to provide Huss with a defense fund. 4 Id. at

13.

       The circumstances surrounding the drafting of the provision requiring a

$10,000.00 payment are irrelevant to the analysis.           Rather, any provision

that requires payment to the other party for filing actions or motions to

ensure that a child’s best interests are met, is unenforceable. Regardless of


____________________________________________


4
  A statutory right to counsel fees exists where “[a]ny participant . . . is
awarded counsel fees as a sanction against another participant for dilatory,
obdurate or vexatious conduct during the pendency of a matter.” 42 Pa.C.S.
§ 2503(7).




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Weaver’s income or his ability to make a “large salary,” a provision that

would potentially prevent him from filing, or make him question his ability to

file, an action to ensure a child’s best interests, is against public policy.5

       I believe the child’s right to a custody arrangement that provides for

his or her best interests is paramount, and therefore the contract provision

requiring payment of $10,000.00 for any “modification or amendment” to

custody or visitation sought is against public policy and unenforceable.

       I would find that the trial court did not err and would affirm its order

overruling the preliminary objections and dismissing the complaint.




____________________________________________


5
  That this case is at the preliminary objection stage does not affect my
analysis.    I believe we must grant prospective relief from a contract
provision requiring payment for seeking custody modification. That a party
may, at some future date, receive relief from the contractual fee provision,
does not alter that the fee provision could deter a person from seeking a
custody arrangement that meets a child’s best interests.              Under the
majority’s rationale, if Weaver did not have the $10,000.00, he would be
faced with a choice: (1) file a petition, knowing he could not abide by the
contract terms, and then be forced to expend additional funds in a breach of
contract action to establish that enforcement of the provision acted as an
impediment to seeking custody modification in the best interests of the
child; or (2) not file a petition to modify custody or visitation because he did
not have the funds to pay the fee knowing that the custody arrangement
was falling short of meeting the child’s best interest. Therefore, such a
provision could prevent court review of custody arrangements and allow a
child to remain in a custody arrangement that does not meet his or her best
interests.



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