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)