J-S23001-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

RICKY LAND 

Appellant

v.

KAYLYNNE DORAN

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 306 EDA 2023

Appeal from the Order Entered October 14, 2022

In the Court of Common Pleas of Pike County 

Civil Division at No(s): 147-2022- Civil

BEFORE: PANELLA, P.J., KUNSELMAN, J., and KING, J.

MEMORANDUM BY PANELLA, P.J.: FILED SEPTEMBER 18, 2023

Ricky Land (“Father”) appeals from the order issued October 14, 2022, 

denying Father’s exceptions, and adopting the custody hearing officer’s report 

and recommendations, thereby giving Kaylynne Doran (“Mother”) sole legal 

and physical custody of the parties minor child (“Child”)1. On appeal, Father 

claims the trial court erred by conducting an ex parte custody hearing with 

Mother without affording Father notice that he could request to be present at 

the hearing, or otherwise have a meaningful opportunity to be heard. Mother 

has not filed a brief on appeal. After careful review, we vacate and remand for 

further proceedings.

____________________________________________

1 Child was one year old at the time Mother filed for custody and is currently 

three years old. 
J-S23001-23

- 2 -

The parties are the natural parents of Child. As Father has been 

incarcerated since October 2020, Child has resided with Mother since that 

time. On February 3, 2022, Mother filed a complaint for custody seeking full 

legal and physical custody of Child. After the parties were unable to reach an 

agreement during a custody conference in March 2022, a custody hearing was 

scheduled for May 23, 2022. Mother appeared and testified at the custody 

hearing. Father failed to appear. After the hearing, the custody hearing officer 

filed a report and recommendation in favor of Mother. 

On August 3, 2022, Father filed an exception to the hearing officer’s 

report and recommendation. Specifically, Father argued the custody hearing 

was held in violation of his due process rights because the hearing was held 

without Father present and without notice to Father of his right to attend. 

After oral argument was held on Father’s exception, the trial court denied 

Father’s exception and adopted the hearing officer’s report and 

recommendation. This timely appeal followed. 

Our scope and standard of review of child custody orders are settled:

In reviewing a custody order, our scope is of the broadest type 

and our standard is abuse of discretion. We must accept findings 

of the trial court that are supported by competent evidence of 

record, as our role does not include making independent factual 

determinations. In addition, with regard to issues of credibility and 

weight of the evidence, we must defer to the presiding trial judge 

who viewed and assessed the witnesses first-hand. However, we 

are not bound by the trial court's deductions or inferences from 

its factual findings. Ultimately, the test is whether the trial court's 

conclusions are unreasonable as shown by the evidence of record. 

We may reject the conclusions of the trial court only if they involve 
J-S23001-23

- 3 -

an error of law, or are unreasonable in light of the sustainable 

findings of the trial court.

S.T. v. R.W., 192 A.3d 1155, 1160 (Pa. Super. 2018) (citation omitted).

However, our review differs when an appellant presents a due process 

challenge:

A question regarding whether a due process violation occurred is 

a question of law for which the standard of review is de novo and 

the scope of review is plenary.

Id. (citations omitted).

Father argues that the trial court erred by holding the custody hearing 

outside his presence and failing to provide him with notice that he had a right 

to request to be present at the hearing, or have the opportunity to be heard. 

The trial court implicitly concedes that it did not provide Father with 

explicit notice of his right to attend the hearing. See Trial Court Opinion, 

2/15/2023, at 5. Nonetheless, the court contends that Father’s reliance on 

S.T. is misplaced because the facts are distinguishable, and that in any event 

Father was aware of his right to participate since he had exercised this right 

in the past. 

After reviewing the record, we disagree with the trial court on both 

counts. We begin by noting that “the fact of a party’s incarceration places an 

obligation on the court to safeguard his due process rights[.]” Vanaman v. 

Cowgill, 526 A.2d 1226, 1227 (Pa. Super. 1987). As such, an imprisoned 

person is due not only notice of a civil hearing, but must also be informed of 

his right to attend. See S.T., 192 A.3d at 1162. Further, this is not just a 
J-S23001-23

- 4 -

question of whether Father waived his rights and interests in these 

proceedings. Courts must be mindful that the paramount concern of custody 

proceedings is the best interests of the child. See M.J.M. v. M.L.G., 63 A.3d 

331, 334 (Pa. Super. 2013). And since “a determination of the child’s best 

interests must have its basis in information[,]” precluding Father from 

presenting evidence on Child’s best interests may violate Child’s rights as well. 

See S.T., 192 A.3d at 1161. 

The trial court contrasts the procedural history of S.T., where the 

incarcerated parent initiated the proceedings, with the present case, where 

Father is the respondent. However, none of the operative language in S.T. 

relies on the distinction between a petitioner and a respondent:

In custody hearings, parents have at stake fundamental rights: 

namely, the right to make decisions concerning the care, custody, 

and control of their child.

Due process must be afforded to parents to safeguard these 

constitutional rights. Formal notice and an opportunity to be 

heard are fundamental components of due process when a person 

may be deprived in a legal proceeding of a liberty interest, such 

as physical freedom, or a parent's custody of her child. It is 

well settled that procedural due process requires, at its core, 

adequate notice, opportunity to be heard, and the chance to 

defend oneself before a fair and impartial tribunal having 

jurisdiction over the case. Due process is flexible and calls for such 

procedural protections as the situation demands.

S.T. v. R.W., 192 A.3d 1155, 1160-61 (Pa. Super. 2018) (citations and 

internal quotation marks omitted) (emphasis in original). Further, Pa.R.Civ.P. 

1930.4(f)(1)(ii) required that Father, as an incarcerated person, be provided 

notice of his right to participate in the proceeding when Mother served him 
J-S23001-23

- 5 -

with original process in this domestic relations case. Father’s status as the 

respondent here is not relevant to the question of whether the trial court was 

required to give him notice of his right to be present for the hearing.

Similarly, Father’s presence at the prior conciliation conference does 

not indicate whether Father was aware of his right to file the necessary 

documents to ensure his presence at the full hearing. We note that it is not 

clear, under S.T. and our existing Rules of Civil Procedure, whether the trial 

court and incarcerated parents must continually re-engage in a notice/request 

cycle for subsequent proceedings. In other words, it is possible that Father’s 

initial request to be present for these proceedings was sufficient to place the 

burden on the trial court of procuring his presence going forward, until such 

time that Father rescinded his request. Alternatively, it may be that the trial 

court is required to provide notice of Father’s rights with every proceeding 

that is scheduled in this matter, and consequently, Father has the burden of 

responding to such notice with a new request to be present on pain of 

forfeiting that right. However, we need not reach that issue here, as it is clear 

that under either legal regime, Father’s due process rights were violated.

It is undisputed that Father successfully requested to be present for the 

conciliation conference. And it is also undisputed that the trial court failed to 

inform Father that he needed to file a new request to be present at the 

subsequent hearing. Put simply, Father communicated his desire to be present 

for these proceedings. If the trial court wished to impose a requirement for 
J-S23001-23

- 6 -

Father to file a new request every time a new event was scheduled, the court 

had the burden of informing Father of that requirement. 

Compounding the issue, the hearing that was held in Father’s absence 

was not held on the record, in violation of Pike County Court of Common Pleas 

Local Rule 1915(F). Our Prothonotary was informed that no record exists of 

the hearing. Accordingly, there is no way of knowing what testimony was 

presented at the hearing, nor if proper procedure was followed. Even if Father 

had been provided with proper notice and nevertheless failed to attend, he 

would have no way to appeal any improprieties from the hearing since it is 

unclear what the hearing entailed. 

Accordingly, we vacate the order adopting the custody hearing officer’s 

report and recommendation, giving Mother sole legal and physical custody, 

and remand for a new custody hearing with proper notice to Father. 

Order vacated. Case remanded for proceedings consistent with this 

memorandum. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/18/2023