J-E03001-15

2016 PA Super 24

AMY HUSS IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

JAMES P. WEAVER

Appellee No. 1703 WDA 2013

Appeal from the Order Entered September 25, 2013

In the Court of Common Pleas of Washington County

Civil Division at No(s): 2013-1209

BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J., 

SHOGAN, J., LAZARUS, J., OTT, J., STABILE, J., and JENKINS, J.

DISSENTING OPINION BY JENKINS, J.: FILED FEBRUARY 05, 2016

I respectfully dissent. I would affirm the trial court’s order sustaining 

James P. Weaver’s preliminary objections and dismissing Amy Huss’s 

complaint seeking enforcement of the parties’ agreement. Although rights 

involving child custody and visitation belong to the parents, these rights are 

limited to those which serve the best interest of the child. A child has a right 

to a custody arrangement that meets his or her best interests. In my view, 

a contractual provision that potentially hinders or chills an interested party’s 

ability to ensure a custody arrangement that is in the child’s best interest is 

against public policy and unenforceable. 

In October 2008, Huss and Weaver entered into a contract 

(“Agreement”) which outlined the custody and visitation rights of their 

potential future children. The Agreement provided that if Weaver sought to 
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modify the contract terms, he would be required to “pay Huss $10,000.00 

for each modification or amendment sought.” Amended Complaint, 4/19/13, 

at ¶ 3 (Exhibit A).

In November of 2010, the parties’ son was born. In December 2010, 

Weaver filed a complaint for custody. In March 2013, Huss filed a complaint 

alleging Weaver breached the 2008 contract. Weaver filed preliminary 

objections. Huss filed an amended complaint and Weaver filed preliminary 

objections to the amended complaint arguing, inter alia, that the provision 

requiring Weaver to pay Huss $10,000.00 for each modification or 

amendment of custody sought violated public policy. The trial court granted 

Weaver’s preliminary objections and dismissed Huss’s complaint. The 

majority reverses this determination.

In Knorr v. Knorr, the Pennsylvania Supreme Court held:

Parties to a divorce action may bargain between 

themselves and structure their agreement as best serves 

their interests, [Brown v. Hall, 435 A.2d 859 (Pa.1981)]. 

They have no power, however, to bargain away the rights 

of their children, [Sonder v. Sonder, 549 A.2d 155 

(Pa.Super.1988)]. Their right to bargain for themselves is 

their own business. They cannot in that process set a 

standard that will leave their children short. Their bargain 

may be eminently fair, give all that the children might 

require and be enforceable because it is fair. When it 

gives less than required or less than can be given to 

provide for the best interest of the children, it falls under 

the jurisdiction of the court’s wide and necessary powers 

to provide for that best interest. Id. It is at best advisory 

to the court and swings on the tides of the necessity that 

the children be provided. To which the inter se rights of 

the parties must yield as the occasion requires. 
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588 A.2d 503, 505 (Pa.1991) (footnotes omitted). In Knorr, the Court 

found it was not bound by the parties’ agreement regarding child support 

payments. Id. at 505.

Equally as important to a child as monetary support, if not more so, is 

a custody arrangement that meets his or her best interests. Parents are 

free to enter into agreements regarding custody and visitation.1 Miller v. 

Miller, 620 A.2d 1161, 1165-66 (Pa.Super.1993). However, a court is not 

bound by, and may set aside, such agreements. Id. In child custody 

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1 This Court has described the usefulness of private custody arrangements 

as follows:

First, most parents genuinely love their children, and it is 

reasonable to assume that the children’s welfare is a vital 

consideration in the parents’ decision to resolve their 

dispute by agreement. One major reason that parents 

agree on custody is to spare their children the trauma 

inherent in an adversarial hearing. Second, parents have 

a better informational base upon which to make a decision 

about custody. The adversarial process is an inadequate 

means to assemble sufficient ‘facts’ to resolve custodial 

disputes satisfactorily. Third, it is difficult to protect a 

child from the painful pull of divided loyalties when his 

parents fail to agree. Parental agreements help to 

preserve an atmosphere of at least superficial peace 

between parents and thereby facilitate a much easier and 

more meaningful future relationship between the child and 

the non-custodial parent. 

Miller, 620 A.2d at 1164 (quoting Witmayer v. Witmayer, 467 A.2d 371, 

374-75 (Pa.Super.1983)). Accordingly, the policy reasons that courts 

promote private agreements regarding custody include that the parents are 

likely to act in the best interests of the child and that it is in the best 

interests of the child to have an amicable resolution.
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proceedings, courts are charged with the task of designing a custody 

arrangement that is in the child’s best interest. 23 Pa.C.S. § 5328(a) (“[i]n 

ordering any form of custody, the court shall determine the best interests of 

the child by considering all relevant factors, giving weighted consideration to 

those factors which affect the safety of the child”). The focus is on the child, 

not the parent. See id. Further, it is axiomatic that in child custody and 

visitation matters, “the paramount concern is the best interests of the child.” 

J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa.Super.2011) (quoting Durning v. 

Balent/Kurdilla, 19 A.3d 1125, 1128 (Pa.Super.2011)); see also Dorsey 

v. Freeman, 652 A.2d 352, 353 (Pa.Super.1994) (determination of “what 

will serve the best interests of the child . . . may never be subordinated to 

other considerations such as ‘fundamental rights and fair play.’”); 

Nonnenman v. Elshimy, 615 A.2d 799, 801 (Pa.Super.1992) (“in matters 

of custody and visitation, the ultimate consideration for the court is a 

determination of what is in the best interest of the child, and all other 

considerations are deemed subordinate to the child’s physical, intellectual, 

moral, and spiritual well-being”); Mumma v. Mumma, 550 A.2d 1341, 

1343 (Pa.Super.1988) (“although entitled to be considered, [private custody 

agreements] must always give way where the best interests of the child 

suggest an alternate custody arrangement”); Com. ex rel. Doberstein v. 

Doberstein, 192 A.2d 154, 156 (Pa.Super.1963) (“It is basic and 

fundamental that the paramount consideration is the welfare of the children 

and that all other considerations, including the rights of parents, are 
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subordinate to the children’s physical, intellectual, moral, spiritual and 

emotional well[-]being.”).2

Both the courts and the Commonwealth have a duty to ensure a child’s 

best interests are met by any custody agreement. We have found that it is 

a court’s “responsibility to look to the best interest of the child” and the 

court’s “duty to protect the rights and interests of children” when called 

upon to determine a custody issue. Miller, 620 A.2d at 1164, 1165. 

Further, the Commonwealth “is charged with the duty of protecting the 

rights and interests of the children.”3 Miller, 620 A.2d at 1165 (quoting In 

re Williams L., 383 A.2d 1228 (Pa.1978)). 

A contractual provision that impedes the trial court’s ability to review a 

custody or visitation arrangement is against public policy and unenforceable. 

____________________________________________

2 A parent has a fundamental right to make “decisions concerning the care, 

custody, and control of [his or her] children.” In re S.H., 71 A.3d 973, 980 

(Pa.Super.2013). This does not mean, however, that only a parent has a 

right to custody and visitation. A parent can lose his or her right if it would 

not be in the best interest of the child, i.e., the child’s right to live in an 

environment that provides for his or her best interests can outweigh a 

parent’s custody rights. See id. (“fundamental right of parents to the care 

and custody of their children when that care and custody serves the 

best interests of the children” (emphasis provided)).

3

“The source of the state’s authority to intervene in family matters to 

protect minor children has been said to be the doctrine of parens patriae, 

the concept that the sovereign is the father of his country.” In re Williams 

L., 383 A.2d at 1235-36. This authority would not apply to a typical 

custody arrangement, but it supports the strong public policy of 

Pennsylvania to promote custody arrangements that are in a child’s best 

interests.
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Cf. Kraisinger v. Kraisinger, 928 A.2d 333, 345 (Pa.Super.2007) (contract 

provision invalid where it “penalizes mother for, and therefore would act to 

discourage her from, seeking a court’s review of the parties’ agreement as to 

child support”); see also Ferguson v. McKiernan, 940 A.2d 1236, 1245 

n.16 (Pa.2007) (a contract is against public policy where the policy “is so 

obviously for or against the public health, safety, morals or welfare that 

there is a virtual unanimity of opinion in regard to it, that a court may 

constitute itself the voice of the community in so declaring [that the contract 

is against public policy].”)

The majority attempts to distinguish Knorr. It reasons that Knorr

addressed a child’s right to adequate child support payments and, unlike 

child support payments, any right to custody and visitation belong to a 

parent, not a child. Majority, at 9-10. However, as stated above, the right 

of parents to craft a custody arrangement is always subject to the child’s 

right to a custody plan that serves the child’s best interests. There is no 

reason to treat custody actions differently than child support actions, as the 

goal of both is to ensure that a child’s best interests are met. Miller, 620 

A.2d at 1166 (finding the Supreme Court of Pennsylvania’s determination of 

“court’s role in enforcing [child support] agreements equally applicable to 

custody matters”); see also Knorr, 588 A.2d at 508 (noting that when a 

child support agreement “gives less than required or less than can be given 

to provide for the best interest of the children, it falls under the jurisdiction 

of the court’s wide and necessary powers to provide for that best interest”).
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The majority asserts the “issue of whether a provision in a 

custody/visitation contract that places a serious impediment on either 

party’s ability to seek court modification in the best interest of the child is 

not presently before this Court.” Majority Opinion at 12. It reasons the 

contract does not provide that the provision is intended to discourage 

Weaver from seeking intervention or that the payment would act as an 

impediment to his ability to do so. Id. The majority claims whether it would 

be an impediment would depend on Weaver’s ability to pay the $10,000.00 

fee. Id. The majority notes the contract states Weaver is “an attorney 

capable of earning a large salary,” Weaver recognized the Agreement’s 

terms were “fair, just, and reasonable,” and he agreed that he voluntarily 

executed the agreement. Id. The majority further notes that it is unclear 

whether the parties intended to provide Huss with a defense fund.4 Id. at 

13.

The circumstances surrounding the drafting of the provision requiring a 

$10,000.00 payment are irrelevant to the analysis. Rather, any provision 

that requires payment to the other party for filing actions or motions to 

ensure that a child’s best interests are met, is unenforceable. Regardless of 

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4 A statutory right to counsel fees exists where “[a]ny participant . . . is 

awarded counsel fees as a sanction against another participant for dilatory, 

obdurate or vexatious conduct during the pendency of a matter.” 42 Pa.C.S. 

§ 2503(7).
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Weaver’s income or his ability to make a “large salary,” a provision that 

would potentially prevent him from filing, or make him question his ability to 

file, an action to ensure a child’s best interests, is against public policy.5

I believe the child’s right to a custody arrangement that provides for 

his or her best interests is paramount, and therefore the contract provision 

requiring payment of $10,000.00 for any “modification or amendment” to 

custody or visitation sought is against public policy and unenforceable.

I would find that the trial court did not err and would affirm its order 

overruling the preliminary objections and dismissing the complaint.

____________________________________________

5 That this case is at the preliminary objection stage does not affect my 

analysis. I believe we must grant prospective relief from a contract 

provision requiring payment for seeking custody modification. That a party 

may, at some future date, receive relief from the contractual fee provision, 

does not alter that the fee provision could deter a person from seeking a 

custody arrangement that meets a child’s best interests. Under the 

majority’s rationale, if Weaver did not have the $10,000.00, he would be 

faced with a choice: (1) file a petition, knowing he could not abide by the 

contract terms, and then be forced to expend additional funds in a breach of 

contract action to establish that enforcement of the provision acted as an 

impediment to seeking custody modification in the best interests of the 

child; or (2) not file a petition to modify custody or visitation because he did 

not have the funds to pay the fee knowing that the custody arrangement 

was falling short of meeting the child’s best interest. Therefore, such a 

provision could prevent court review of custody arrangements and allow a 

child to remain in a custody arrangement that does not meet his or her best 

interests.