Prior to the enactment of the Child Custody Act in 2012, generally if a party was obdurate, angry, dilatory, or bad faith in custody matters, an application for attorney fees was generally made under the Courts Act under 42 Pa.CSA Section 2503. With the passage of the Custody Act made it possible 23 Pa. However, CSA Section 5339 requires the court to award attorney’s fees to a party if the court has found the conduct of another party to be persistent, angry, repetitive, or poor in confidence. The passage of Section 5339 was well received as many believe that repeated litigation is not in the best interests of the child. As a reminder, the best interests of the child is the foundation of the Pennsylvania Custody Act. With the passage of Section 5339, there was now a specific path a practitioner could take to combat a “frequent flyer” who is continually pulling the other party back with files after filing in court.
The first reported appeal dealing with the application of Section 5339 was the Chen v Saidi case, 100 A.3d 587 (Pa. Super. 2014). In the Chen case, the father filed seven petitions over a period of seven years. The court of first instance awarded legal fees in this case because of the father’s repeated filings. However, the Pennsylvania Supreme Court overturned the court, stating that “every petition sought clear relief on a variety of legitimate issues typically encountered in a custody matter.” In Chen, the Superior Court found that each petition could not be determined to be relatively unfounded. In addition, the Superior Court found that there was no evidence that any of the submissions affected the best interests of the child. In the Chen case, one of these petitions was amicably settled and another partially upheld. The courts have followed a similar approach since the Chen case.