Huss, A. v. Weaver, J.
134 A.3d 449, 2016 Pa. Super. 24, 2016 Pa. Super. LEXIS 66 (2016)
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Rule of Law:
A contractual provision requiring one parent to make a monetary payment to the other for seeking judicial modification of a private custody agreement is not per se void as against public policy unless it is shown to be a serious impediment to that parent’s ability to seek court intervention in the best interests of the child.
Facts:
- Amy Huss and James P. Weaver were involved in a romantic relationship.
- In October 2008, the parties entered into a contract ('Agreement') concerning the custody of any future children.
- Weaver, a practicing attorney, drafted the Agreement along with a colleague from his law firm.
- The Agreement stipulated that if the relationship ended, Huss would have primary physical custody of their child.
- The Agreement contained a clause requiring Weaver to pay Huss $10,000 for each complaint, motion, or petition he filed seeking to modify the custody or visitation provisions.
- The Agreement also included a recital that Weaver was an attorney capable of earning a large salary.
- The parties had a son in November 2010.
- After the child's birth, the parties' relationship ended and they became involved in custody litigation.
Procedural Posture:
- In December 2010, Weaver filed a complaint for custody in the trial court.
- On March 7, 2013, Huss sued Weaver in the trial court for breach of contract.
- Weaver filed preliminary objections to Huss's complaint.
- Huss filed an amended complaint, adding causes of action for negligent misrepresentation and fraud.
- Weaver filed preliminary objections in the nature of demurrers to the amended complaint, arguing the modification provision violated public policy.
- The trial court sustained Weaver's preliminary objections and dismissed Huss's amended complaint with prejudice.
- Huss, as appellant, appealed the dismissal to the Superior Court of Pennsylvania, an intermediate appellate court.
- A three-judge panel of the Superior Court initially reversed the trial court's decision.
- Weaver, as appellee, successfully petitioned for reargument before the court en banc, and the panel's decision was withdrawn.
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Issue:
Does a provision in a private custody agreement requiring one parent to pay the other parent a fee of $10,000 for each attempt to judicially modify the agreement's custody or visitation terms violate public policy?
Opinions:
Majority - Bender, P.J.E.
No. A contract provision requiring a parent to pay the other for seeking modification of a custody agreement does not violate public policy where there are no facts of record to support a finding that the payment acts as an impediment to seeking court intervention. The court distinguished custody agreements from child support agreements, noting that the right to child support belongs to the child and cannot be bargained away by parents, whereas custody and visitation rights belong to the parents. While all custody agreements are subject to court modification in the child's best interest, they are not per se unenforceable on public policy grounds. At the preliminary objection stage, the court must accept as true the facts alleged in the complaint, which state that Weaver is a high-earning attorney and that he agreed the terms were fair. Therefore, without evidence that the $10,000 payment constitutes a genuine impediment to Weaver's access to the courts, dismissing the complaint was an error.
Dissenting - Jenkins, J.
Yes. A contractual provision that potentially hinders or chills a party’s ability to ensure a custody arrangement serves the child’s best interest is against public policy and unenforceable. The paramount concern in all custody matters is the best interest of the child, which is a right belonging to the child. Any contractual provision that requires a parent to pay a fee to seek judicial review of custody could deter that parent from acting to protect the child's best interest. Such a provision is void as against public policy on its face, regardless of the parent's financial ability to pay, because the potential chilling effect on litigation to protect a child is intolerable.
Concurring - Bowes, J.
No. The provision is not contrary to public policy per se, and therefore the trial court erred in sustaining the demurrer, but it is premature to determine the provision's ultimate enforceability. The trial court improperly accepted Weaver's characterization of the clause as a 'penalty' at the preliminary stage without any factual basis in the complaint. The case should proceed to discovery to determine the parties' intent. If facts reveal the clause is a penalty or an intractable barrier that chills Weaver's ability to litigate in the child's best interest, it would be unenforceable. However, if it is found to be a reasonable 'defense fund' to protect a financially disadvantaged parent from vexatious litigation, it may be enforceable.
Analysis:
This decision clarifies that financial deterrent clauses in private custody agreements are not automatically void, unlike those related to a child's right to support. The ruling establishes that the party challenging such a clause bears the burden of proving it creates a genuine 'impediment' to court access, shifting the analysis from a facial public policy violation to a fact-specific inquiry into the clause's actual effect. This creates a higher bar for invalidating such provisions and underscores the importance of the procedural posture, as a court cannot strike down such a clause at the demurrer stage without a factual record demonstrating its prohibitive impact. The case signals that courts may enforce such clauses if they are found to be reasonable measures to deter frivolous litigation rather than punitive barriers.
