Family law attorneys: Child custody cases are never clear cut

Posted: Aug. 13, 2018

Kayden Mancuso

Child custody cases are among the longest, most expensive, ugliest and difficult decisions judges face, but rarely do they end as tragically as the murder of a child, according to family law experts.

The death of 7-year-old Kayden Mancuso at the hands of her father, who then killed himself, has released a tidal wave of outrage in Bucks County and beyond. Much of the anger has been focused on Bucks County Common Pleas Court Judge Jeffrey Trauger, who oversaw the contentious custody case between Kayden’s parents, Jeffrey Mancuso, of Philadelphia, and Kathryn Sherlock, of Lower Makefield.

Sherlock and her family contend that Trauger ignored extensive evidence that Mancuso presented a serious danger to Kayden when the judge failed to follow a court psychologist’s recommendation for supervised visits as part of a final custody order handed down in May. An online petition through Change.org that calls for the Pennsylvania State Judicial Conduct Board to remove Trauger from the Bucks County bench had more than 30,000 electronic signatures as of early afternoon.

Family law attorneys interviewed by this news organization said parents have a constitutional right to custody and care of their children, and the courts generally agree children should have a relationship with both parents.

Jeff Mancuso and daughter Kayden

“Parents are presumed to act in their child’s best interest,” said Sarah Katz, an associate clinical professor of law at Temple University’s Beasley School of Law and former supervising attorney in the Family Advocacy Unit at Community Legal Services in Philadelphia. “The law presumes it’s good to have both parents in their life. The question is, at what point do we intervene when there are legitimate best interest concerns.”

Often, though, answers are not easily found, local attorneys said.

With virtually all child custody cases, the starting point is always that both parents will get visitation — or parenting time — with a child. The how and how much time is what gets hashed out based on available facts and what the court believes is best for the child, according to Jack Feinstein, a professor emeritus who ran a legal clinic at Rutgers University Law School in Newark New Jersey.

An online petition through Change.org that calls for the Pennsylvania State Judicial Conduct Board to remove Trauger from the Bucks County bench had more than 30,000 electronic signatures as of early Monday afternoon. The Bucks County Bar Association president, in a letter to members, said “the vitriol towards our judiciary and Judge Trauger is unwarranted” and asked members to help educate the public on the court system.

In Pennsylvania judges can be removed in two ways.

The Judicial Conduct Board investigates complaints filed by individuals or initiated by the board itself. If the board determines probable cause it will file formal charges and present the case to the court of judicial discipline. That court can impose sanctions, including removal.

The state House of Representatives can impeach a judge and the state Senate would need to convict by two-thirds of its members.

Source: National Center for State Courts

“The presumption is the noncustodial parent will get parenting time. That is basically a given in the court’s mind,” Feinstein said, “The court takes everything into consideration. If court thinks there is danger to the child that is credible they’ll want to hold a hearing before the visitation.”

Past violent behavior or criminal past isn’t automatically going to prevent a parent from being allowed contact with their children, if there is no evidence they have abused or threatened them, Feinstein and other attorneys said.

If the court is concerned a parent has serious behavior or mental health problems, it can order a psychiatric evaluation, anger management or parenting classes be completed before deciding visitation, he added. If a parent is accused of abusing a child, the courts can order a child protective services investigation and delay a decision on visitation until a report is issued.

“The court takes allegations seriously. They are not going to look to put a child in jeopardy,” he added. “It always depends on the circumstances of a particular case. Some parents will say anything to interfere with the other parent. The last thing a judge is going to want to do is have to deal with reporters and parents and police asking, ‘How did you allow this visitation?’”

Eight years ago, Pennsylvania underwent dramatic changes in its child custody laws, with new rules designed to hold Common Pleas Court judges more accountable for the reasoning behind custody awards. Among the changes was prohibiting the court from assuming custody should be awarded to a particular parent based on gender.

Kayden (l) and her mom Kathryn Sherlock

Other changes included requiring the court to address 16 custody factors and explain decisions in orders creating a case history for a future judge, and to identify and address any history of abuse, child protection involvement and criminal history before a final award is made.

The revised law also requires safety conditions be created in cases where the court finds an “ongoing risk of harm” to a child or abused parent exists and awards any type of custody to an alleged abuser.

“Good judges would have considered the factors now memorialized in the statute. Too often, busy judges were not articulating the reasoning for an award to the frustrations of parents and lawyers,” said Mary Cushing Doherty, a Doylestown family law attorney who helped get the revamped law passed in 2010. “Then an appellate court or another trial judge on review didn’t necessarily understand the basis for the award. It is important to understand the reasoning if a problem arises later.”

Also important to understand is that a custody case only goes before a family court judge after all other attempts through division programs fail to reach a custody agreement, said Cushing Doherty, an attorney with High Swartz, which has offices in Bucks and Montgomery counties.

Adding to the already tense and emotional situation involving two people who don’t get along, the judge is typically asked to make decisions with limited information about the parents, said Cushing Doherty, who has been in practice four decades.

While past allegations of domestic abuse are among the factors judges must weigh, the court also will scrutinize whether the abuse was against a parent or also the child.

But Katz, the Temple University law school professor, believes the current law doesn’t weight allegations of intimate partner violence as heavily as a minor drug conviction. Studies suggest there is a high prevalence of domestic violence allegations among the estimated 20 percent of child custody cases litigated in family courts, she added.

Sherlock obtained a three-year protection from abuse order against Mancuso last year, according to court records.

“That is one of the difficulties. It seems highly predictable in hindsight, but (judges) are seeing these type of situations and allegations day in and day out with these high conflict cases,” Katz added. “No judge has a crystal ball.”