You must make your best good faith attempt to follow all Court Orders regarding custody. However, note that if you are found in contempt of an Order, simply being in contempt of Court is not enough alone to change custody. An adjudication of contempt is not a proper basis to modify an existing custody arrangement. A parent’s violation of a custody order may be an appropriate foundation for a finding of contempt, but it cannot be the basis for an award of custody. A trial court’s ability to alter custody as a contempt sanction is restricted to circumstances where the responding party is given express notice that custody will be at issue during the contempt proceeding and the modification is based upon the determination of the child’s best interest. J.M. v. K.W., 2017 Pa. Super. LEXIS 390, *1, 2017 WL 2351519 (Pa. Super. Ct. May 31, 2017)
A trial court may transfer physical custody after a contempt hearing only when the modification suits the child’s best interest considering the statutory factors and the respondent has been given particular notice of that objective. The reason for the notice requirements is more than a procedural formality. Indeed, without particularized notice that custody would also be at issue at the contempt hearing, a respondent would not be prepared to litigate the custody dispute during the contempt proceedings and the trial court would be denied the benefit of both parties’ relevant evidence concerning the children’s well-being. Consequently, the trial court would lack the required information to make the quintessentially crucial judgment as to the children’s best interests. J.M. v. K.W., 2017 Pa. Super. LEXIS 390, *1, 2017 WL 2351519 (Pa. Super. Ct. May 31, 2017) The issue here is that there must be an award of special relief by the Court.
Absent an award of special relief under Pa.R.C.P. No. 1915.13, it is an abuse of discretion for the trial court to transfer custody from one party to the other as a contempt sanction; custody can be modified only where the parties receive advance notice that custody is to be an issue at the contempt hearing and modification is based upon the determination of the child’s best interest. J.M. v. K.W., 2017 Pa. Super. LEXIS 390, *1, 2017 WL 2351519 (Pa. Super. Ct. May 31, 2017)
There are two takeaways here. First, it is always bad to violate a custody order. No good things come from that decision. The second important take away is that a Court can not simply order a custody change based upon a violation. However, note that a Court does have the power on its own to change custody upon a hearing. The Court will have to provide notice if this is to occur which may give you time to comprise a strategy based upon the best interests of the child to fight any proposed custody change.