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We have written on this subject before reporting a Superior Court decision earlier this year that put a new focus on benefit to the children as a condition to successfully secure an order allowing a parent to relocate.  The rule of precedent requires trial court judges to pay attention to and follow Superior Court rulings and three recent decisions in Berks County appear to demonstrate that the trial courts are taking heed.

On August 14 Judge Scott Lash issued a ruling in Miller v. Lee.   In that case a mother’s new husband had been offered employment in Alabama. He had accepted the job and purchased a home there by the time of trial. The parties had been working under a 2009 agreement which gave Mother primary physical.  While the Court appears to have been somewhat critical of Father’s passivity concerning mechanical duties like physician appointments, it also found that Father had a solid bond with the child; that Father could not afford to travel to Alabama and that a proposed schedule that gave the child summers with Father was not an adequate substitute even though the actual time allotment was roughly equivalent.  Although the increase in the pay for the stepfather was substantial, the Court did not see it as worthy of disrupting Father’s regular involvement in all aspects of the child’s life.  It was also noted that this was not a relocation that would produce a termination if not accepted.

Two weeks late Judge Lash ruled in Thompson v. Stoudt.  Here the parties had an informal week on/off arrangement for their two children. Mother asked to move from Berks to Carbon county to live with another man.  Again, the court found Father’s conduct to be less than exemplary finding that Father was prone to snap at the children.  But the Court still found the relationship positive and the parties hereto fore, cooperative.  It being clear that the relocation would disrupt the 50/50 schedule and noting no enhanced benefit to the children in particular the Court denied the relocation.

On September 28, Judge James Bucci issued his ruling in Moore v. Moore.  In this case the parents had adopted a child from West Africa and brought him home to Berks County.  Shortly thereafter the couple separated but they shared the now six year old child on an equal basis.  Mother formed a relationship with a man who resided in Delaware County and filed a request for relocation.  Shortly thereafter she enrolled the child in activities in Delaware County and otherwise presumed that her request would be granted despite Father’s filed opposition.  The Court took umbrage at what it perceived to be a desire on mother’s part to relocate the child before the Court could act on her request.  With Mother having sold her home in anticipation of the relocation, the Court ordered that the child reside primarily with Father until the relocation trial could be held.  Following the trial the court made the temporary placement permanent holding that Mother’s approach to the entire matter was disruptive to a young child who already had endured a move from one continent to another and a fairly immediate divorce by his adoptive parents.  While Mother posed that the school system in Delaware County was superior to that in Berks, the Court found that any advantages the school system might offer were undercut by the potential loss of continuous contact with the Father.

Each of these opinions is extensive: 20-30 pages.  Both litigants and their counsel are encouraged to study how courts are addressing these intensely emotional cases.  The first two cases are PICS Case Nos. 12-2128 and 12-2145.  As we have reported earlier, the moral to the story appears to be that relocation is not going to be easily granted unless there is a well defined plan and a palpable direct benefit to the child.

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Since the new custody statute and relocation provisions came into effect in 2011 we have had only one reported decision analyzing the statute. E..D. v. M.P. 2011 WL 5392990.  That changed on Tuesday with the publication of CMK v. KEM, a case decided by the Superior Court affirming a Mercer County decision denying relocation.

The salient facts are that the child was almost seven at the time the relocation hearing took place.  Both parents lived in Grove City, Mercer County.  They never married.  Mother had primary physical custody following separation in July, 2008.  The schedule was not formalized until July, 2010 when Father secured alternate weekends from Friday at 6:00 pm to Sunday at 8:30 and every Wednesday from 6:00 to 8:30 PM.

Mother served her notice of her intention to relocate on June 2, 2011.  Father filed his objection on June 27.  Mother’s proposal was to move the child 68 miles away from Grove City to Albion in Erie County. The trial court heard testimony and decided that Mother did not meet the burden of “proving that relocation with Child would be in Child’s best interest.”

Although Mother had, by her filings, treated the move as a relocation, she argued on appeal that it was not.  Specifically, she asserted that because she had offered an additional 21 overnights as part of her proposed package, Father was not “losing time”.  This is an interesting approach as the statute defines a relocation as a residential change which “significantly impairs” the custodial rights on the parent who remains behind. 23 Pa. C.S.A. 5322(a).  The trial court did see the change as significant notwithstanding the proposed change in schedule.

The trial court found that the child had a very close relationship with both parents and that Father’s involvement was “regular and continued” including street hockey and baseball.  Father was part of medical appointments and school evaluations of the child. In its decisive utterance the Court found that relocation would “break the continuity and frequency of Father’s involvement with [the] child and therefore threaten significant impairment of Father’s ability to exercise his custodial rights.  Mother’s offer of additional custody time would not ameliorate these adverse effects See 23 Pa. C.S. A. Sec. 5337(h)(3).”

The fact that Mother had spent most of her life in Erie County and that her family was located in that community or that she had job prospects in Erie County was not sufficient nor was the fact that Father had a history that included a Protection from Abuse Order and charges he had violated it.  The Court instead based its analysis upon the assessment that the current custodial arrangement was working and that the evidence of abuse did not relate to the child.  It also noted that mother regularly visited father’s parents with the child and that both parents had used paternal grandparents to provide occasional child care. To allow the move would jeopardize these otherwise stable arrangements.

The trial court had acknowledged that there was some benefit proposed by Mother’s move but the economic benefits were speculative at best.  Rather the child was rooted in the Grove City community. This coupled with the frequent contact between Father and child outweighed the proposed benefits of a move.

CMK v. KEM   1419 WDA 2011 decided by JJ. Bowes, Olson and Platt (Wm H.; frm Lehigh Co judge)

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We have previously noted that there are few cases more vexing than those involving one parent deciding to leave this state with a child and move to another to pursue what he/she perceives as better pastures. Clear case law has developed since 1990 that set a standard for when relocation should be granted and setting forth that once the Commonwealth has jurisdiction over a case a parent wishing to take the children to live out of state needs to file and meet some burdens to sustain their position. Over time this area of judge made law has produced many opinions, not all of which can be seen as consistent. But in a statute passed in November, 2010 and effective on January 26, 2011 the legislature has stepped in and issued some rules and procedures of its own. Ordinarily, the word of the elected legislature is the final one but under a doctrine known as separation of powers, it has been the historic province of the Courts to regulate procedures of law while the General Assembly is delegated the responsibility of deciding the “substance” of Pennsylvania law.

Much of the new statutory law is not different than what has evolved as judicially written law since the 1990 case, Gruber v. Gruber 583 A.2d 483(Pa. Super. 1990).   23 Pa. C.S. 5337 now makes clear that relocation requires either consent of all persons with custodial rights to a child or judicial approval. Those aspiring to get court approval to move with the child to another state are now required to initiate the process by serving a “notice” on other parties with custodial rights stating their intention to relocate not less than 60 days before a proposed move or 10 days after the person learns of a need to relocate (e.g. employer mandated transfer). The ten day notice applies only where the party wishing to move had no reason to know of the transfer and relocation cannot be delayed for the sixty day period required.

The notice must be very specific on some subjects. It must identify the new address where the parent intends to move (and a mailing address if it is not the same) and who else will be residing at this new address including the ages of those individuals. The new phone number must be provided if available. There must be a stated reason for the relocation. The proposed date of the move must be in the notice, as well as the identity of the new school and district. There is to be a proposed order if the existing order needs to be modified as part of the relocation. These are all good things to have adopted. Unfortunately, the statute says they are to be provided “if available” which affords a basis to file a barren notice and claim insufficient time to research these issues. This would however enhance arguments that the move is not thought out and should be rejected for that reason.

The notice does not have to be filed with the court although it certainly would help if it was since that establishes a clear date to measure the sixty days (or ten days) from. It is to be mailed certified with a return receipt. The notice is to contain a “counter-affidavit” which is actually specified in the statute. Unless the non-relocating parent files this counter-affidavit with the court within 30 days of receipt of the notice to relocate, the non-relocating parent shall be “foreclosed” from objecting to the relocation. If the objection is filed on a timely basis, the non-relocating parent is also empowered to ask that the Court enter an order denying the relocation. The objection must be verified as to its truth and requires specification if the objection is to the relocation or any modification sought as part of the relocation (as in where the distance makes the old schedule unrealistic).

If no timely counter-affidavit is filed the party wishing to move must file an affidavit that service was properly made and that the time period allowed has passed without filed objections. The return receipt card is also to be part of the affidavit and there is also to be a petition to confirm the relocation with a proposed modification order where necessary. Where an objection is properly filed to the relocation or the modification of the custody order, a hearing is to be scheduled to consider the request. The hearing is to be expedited and held before relocation is granted unless the court makes a finding that exigent circumstances justify a finding that relocation must precede the hearing.

In deciding a contested relocation case, the factors set forth in Section 5337(h) the factors are essentially the same that have evolved under the case law, such as the nature, quality and duration of the child’s relationship with each of the parents involved. Part of that is also the age and developmental needs of the child or children involved, taking into account the child’s needs. The court is to look at the financial and logistical suitability of alternative custody arrangements and to assess the child’s preference. It is also to examine whether the parents will promote or thwart the child’s continuing relationships with the other. The Court will assess whether relocation enhances the quality of life for (a) the parent proposing it and (b) the children involved. The Court is to examine motivation of the parties and to consider whether there is any history of abuse as that term is defined in the Protection from Abuse law.

The party proposing the relocation has the burden of showing that the move will promote the best interests of the child under subsection (i). Each party has the burden of showing the integrity of their motives in the litigation and failure to provide reasonable notice may be considered as indicia of deceit. This may also result in a finding of contempt and/or an assessment of attorneys fees.

Finally, we now have a definition of “relocation” albeit a subjective one. Under Section 5322 it is a residence change that significantly impairs the ability of the non-relocating party to exercise custodial rights. Whereas the prior jurisdictional standards (i.e. out of county) have been substituted for an analysis relevant to the realities of geography – a move within a county may actually pose a greater impact on custody than a move out of state. Now, any relocation which affects the non-relocating parent’s custodial rights will be subject to this statute.

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We live in a mobile society.  We also live in a society that experiences a high rate of divorce.  These two facts make for some of the most contentious litigation found in the domestic relations world.  It is the fight over whether one parent, usually the one with primary physical custody, can take a child to another state to reside there on a permanent basis.

When we have children we all form the Currier and Ives image of the happy nuclear household.  The children will grow up in an intact family with the love and respect of both of their loving parents.  But when mom and dad split and mom shortly thereafter announces that she wants to move to Texas to re-up with her former boyfriend the term “nuclear family” takes on a whole new meaning.  It was bad enough that father got dumped.  It was worse that she took most of the assets.  Then there was the child support. And now, topping the cake, is the concept that the children should live 2,000 miles away and see their loving father once a month and four weeks in the summer.

Can this happen in 21^st century America?  It does every day.  Part of the reason is that none of the facts recited in the last paragraph really matter a lot.  Custody is not about parental pain.  It is about what is in the childrens’ best interests.  So, how could it be in a child’s best interest to grow up hours away from one parent.  Courts struggle with this issue every day.  And, in so doing, they are not unmindful of how a custody result may be grossly unfair to a parent even though in the child’s best interest.

There is a three prong test employed when one parent proposes to move a significant distance from the other parent taking the children with them.  The test comes out of a 1990 Superior Court case called Gruber. v. Gruber. 583 A.2d 434 (1990).

Prong 1: What is the potential advantage of the move and the likelihood the move will substantially improve the life of the custodial parent and the children? Also is the move the product of a momentary whim on the part of the custodial parent?

Prong 2: Does the motivation for the move have integrity and is the reason for opposing the move have a similarly sound basis? and

Prong 3: Are there available realistic alternative arrangements for substitute partial custody or visitation and will such arrangements adequately foster an ongoing relationship between the child and the non-custodial parent?

The initial burden is upon the party proposing the relocation to show the “advantage” to the parent and child.  Each party has the burden with respect to the second prong addressing integrity for the dispute over relocation.

In these cases, past is usually prologue.  A non-custodial parent intimately involved both physically and emotionally in rearing a child presents a major hurdle to that custodial parent who wishes to relocate.  A parent whose involvement has been limited to routine visits and little more may find him or herself in a disadvantaged position.  Courts also examine whether parental conflict over custody issues may make distance an attractive option.  On the other hand there are also cases where a modest level of conflict drives one parent to ask to relocate because “life will be simpler.”  This does not usually make for a successful case.

The most common and most nettlesome area of conflict is over the question of whether relocation “will substantially improve the life of the custodial parent and the children.” There is language in the Gruber case that seems to imply that benefit to the custodial parent may be enough even without palpable advantage to the children.  In metropolitan areas with competitive schools and rich cultural resources, it is sometime difficult to persuade a court that there is an advantage to the child associated with the move.

In recent years there has been a vast increase in this breed of custody litigation.  There are many issues to consider and many reported cases addressing the issue.  But Gruber stands as the seminal case.  The cases decided in the 1990s tended to focus on the benefit to the parent and permit relocation even though a distinct advantage to the child was not often clear.  But in the past decade, the trend has shifted against relocation with recent cases weighing how the children benefit from the move in ways that differ from the happiness of the custodial parent.  One thing remains clear.  People who have already experienced and angst and heartache of separation and divorce do not respond well to plans intended to permit relocation of their children to distant places.

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