Under Pennsylvania law, "legal custody" is defined as: "The right to make major decisions on behalf of the child, including, but not limited to, medical, religious and educational decisions." "Sole legal custody" is defined as: "The right of one individual to exclusive legal custody of the child." "Shared legal custody" is defined as: "The right of more than one individual to legal custody of the child." In 1993, the state Superior Court decided the case of Hill v. Hill, 619 A.2d 1086 (Pa. Super. 1993). In Hill, the Superior Court found an abuse of discretion by the trial court when it awarded shared legal custody and provided: "In the event of disagreement, the mother’s preference shall prevail." In that case, the father argued that the trial court essentially granted the mother sole legal custody. The Superior Court held that the father was given shared legal custody "in name only and deprived him of a legal remedy because he was already awarded ‘shared legal custody.’" The Superior Court further in Hill stated: "The concept of shared legal custody did not contain the principle of giving one parent final authority in the event of a dispute."

In the recent case of M.P. v. M.P., 54 A.3d 950 (Pa. Super. 2012), the converse issue regarding sole legal custody presented itself. In the M.P. case, the mother desired to take the parties’ child with her to Ecuador to visit her family. The mother was born and grew up in Ecuador and her parents reside there. The mother had sole legal custody of the parties’ child. However, the mother needed the father’s signature on a document to permit international travel with the child. The father refused to sign the document and objected to the mother’s planned trip. Therefore, the mother filed a petition seeking permission to travel with the parties’ daughter to Ecuador.

According to the opinion, the mother was granted primary physical custody of the parties’ child and the father was granted supervised visitation for two hours per week when she obtained a protection-from-abuse order against the father in 2009. However, the father did not exercise any of his supervised visitations for the 18-month period prior to the hearing on the mother’s petition seeking permission to travel to Ecuador with the parties’ child. At the hearing, the mother testified that it would be difficult for her parents to obtain visas and that her mother’s "health issues made flying to the United States very difficult." The mother also testified that she would be staying with her family on their farm in Ecuador, which has a working telephone and was near medical and hospital facilities. The father objected to the mother’s intended trip, according to the opinion, because he claimed that Ecuador is a third-world country and that "’there are different diseases, diseases I don’t know anything about,’ and crime."

After the hearing, the trial court issued an order approximately 10 days thereafter and denied the mother’s request providing that: "The mother shall not remove the child … from the United States to Ecuador."

The mother filed a timely appeal and raised three issues. The first issue pertained to the court denying the mother’s request to travel with the child despite having sole legal custody. The second issue on appeal pertained to the trial court basing its decision on evidence obtained by the court privately outside of the record. The third issue on appeal pertained to the trial court failing to delineate its rationale for its order. On appeal: "The mother contends that the trial court’s decision amounted to a de facto award of shared legal custody that contravened the parties’ agreement [of sole legal custody]." According to the opinion: "When one parent has sole legal custody, that parent has final authority to make decisions, regardless of whether the other parent agrees or disagrees." The Superior Court highlights that the trial court allowed the father to challenge the mother’s decision, "which in essence gave him control, i.e., the power that he would have had if he had shared legal custody." Relying on the Hill decision, the Superior Court concluded that the trial court abused its discretion "by acknowledging that the mother had sole legal custody but then prohibited her [from] traveling with the child to Ecuador."

With regard to the mother’s second issue on appeal, the trial court conducted post-hearing research regarding Ecuador’s compliance with the Hague Convention. The parties did not raise the issue of Ecuador’s compliance with the Hague Convention during the hearing and there was no testimony on the issue. The trial court’s research suggested Ecuador’s noncompliance in Hague Convention cases. According to the opinion, the mother was unaware that the court relied on evidence outside of the record until she filed her appeal. The mother asserted that her due process rights were violated by the trial court when it relied on evidence outside of the record and neglected the most recent information on Ecuador’s compliance with the Hague Convention that the mother found on her own. The Superior Court agreed with the mother’s position and concluded: "The trial court erred as a matter of law and/or abused its discretion when it relied on evidence outside of the record and failed to provide its reasoning until the appeal was taken." The Superior Court also agreed with the mother that the court violated the new custody act by not referencing the reasons for its decision in open court or in its opinion.

This case is important for family law practitioners and the bench for a number of reasons. It provides a reminder that an award of shared legal custody cannot include a provision containing a tiebreaker. Further, it reiterates that sole legal custody provides the sole legal custodian sole decision-making authority. This raises an issue if the decision being made by the sole legal custodian is not in the child’s best interest. Lastly, this case reiterates that a trial court shall not consider and rely on evidence outside of the record. In the M.P. opinion, the Superior Court highlights the Ney v. Ney, 917 A.2d 863 (Pa. Super. 2007), case, where the trial court relied on its own Internet search pertaining to job availability in a support case that the Superior Court held was an abuse of discretion. In child custody cases, it is the trial court’s duty to develop a complete record. It is unclear whether it would have been considered an abuse of discretion in the M.P. case if the trial court presented its research to the litigants in open court and afforded the parties the ability to examine and address the same, which may have satisfied the due process argument. •

Michael E. Bertin is a partner at the law firm of Obermayer Rebmann Maxwell & Hippel. Bertin is co-author of the book Pennsylvania Child Custody Law, Practice, and Procedure. Bertin is the chair of the family law section of the Philadelphia Bar Association, co-chairman of its custody committee, and a past member of council and the executive committee of the family law section of the Pennsylvania Bar Association.