It’s not really an important case.  And it’s not a precedential case.  Yet, I couldn’t resist offering a summary because of the names involved.  The legal community has been struggling with the issue of keeping names of parents and children out of case reports.  As we have written, there is policy reason in favor of it.  However, at minimum, it is profoundly awkward.  The April 13, 2020 decision of the Superior Court presents itself as Exhibit “A.”  It’s the ruling in a relocation case; K.W. v. K.W. 1292 WDA 2019.  You’ll never guess which party prevailed, right?

The good news is that this is a heterosexual parenting dispute so we can resort to terms like father and mother.  But, we live in an age where we could easily have same sex parents and a child who might also share the same initials at the parents.

The case involves a relocation dispute over a child approaching age eight (8).  Mother decided that she wanted to relocate from Fayette County, Pennsylvania to North Dakota.  Father responded with a complaint seeking primary physical custody, which incorporated a request to prevent removal of the child (D.W.).  The trial court held three days of hearing over the course of six months.  Before presenting her case for relocation in response to the primary custody complaint, mother upped the ante by marrying the man she was dating in North Dakota.

During the cross examination of mother, she was confronted with an “ultimate issue” question.  “If relocation should be denied, do you intend to move to North Dakota without the child?”  This question itself produces debate among those of us who try custody cases.  Is it a fair question?  Is it technically a relevant question in a world where the declarant is not bound by that testimony? In this case, mother’s reply was the best a witness can provide.  She did not know what she would do and hoped that she did not confront that dilemma.  Not satisfied with that answer, mother amended to say that she would remain in Pennsylvania.

Father also equivocated.  As often happens, his surprise prompted him to file for primary custody but on cross-examination he acknowledged that if relocation was denied a shared physical custody arrangement would be acceptable.

The testimony concluded on July 30, 2019, and the trial court ruled a few days later, denying relocation and awarding shared legal and physical custody.  Mother appealed noting that while the trial court’s order did provide an analysis of the custody factors, it did not present an analysis of the relocation factors under 23 Pa. C.S. 5328(a).

The trial court opinion, took advantage of mother’s revised testimony.  If relocation was denied, mother said she would stay in Pennsylvania.  Thus, the trial court reasoned, until she moved to North Dakota, her testimony had rendered her claim moot.  In an analysis that might be too clever, the trial court noted that mother’s choice to move to North Dakota would not impair father’s ability to exercise his custodial rights, only mother’s.  That would seem to be a twist of the factors under 23 Pa.C.S. 5337.

Mother properly noted that she had expressly filed to relocate and that the “ultimate issue” question of “What would you do if?” should not be treated as abandonment of that otherwise valid request.  Father followed the trial court’s lead indicating that her testimony of willingness to remain in Pennsylvania was a “waiver” of her right to a relocation analysis.

The Superior Court panel reversed, indicating that the equivocation over the response to an adverse ruling was not a basis to avoid the relocation analysis under Section 5337.  Mother’s presentation about a more lucrative North Dakota job offer and an “intact” family with her new husband and his children merited consideration and analysis.  There was also testimony concerning the abilities of North Dakota schools to address the child’s developmental issues.

As noted at the outset, this decision to reverse and remand comes as no surprise.  Nevertheless, the record in this case demonstrates what a difficult set of decisions every trial court faces.  The parents in this case had a child after one year of marriage and separated after six years of marriage when the child was just over five.  Mother met someone new and sought to relocate to be with that person in North Dakota 11 months after separating from the father.  The record is unclear how much time mother and her boyfriend spent together before they married, but it probably did not include much more than summer vacation.  To add to the confusion for a young child, it appears that mother and father may have been living in the same household for more than a year after separation and while this litigation was progressing.  (Opinion p. 2).  There is the prospect (we are told) of a better job in North Dakota and better school resources.  But, how is a trial judge to evaluate that?  We have a child who has ADHD and Asperger’s whose parents are still living together even though mom has just remarried three weeks before the trial ended.

I don’t question either party’s motivations.  We have a mother who testified that her future and her heart are in North Dakota.  But in my own history of these cases, I have often wondered whether a parent is in a rebound rather than a sustainable relationship.  I have wondered whether the job and the schools 1,300 miles away are as represented.  If I am the judge and hearing the relocation, if I grant the request, I have to engage in a leap of faith that all will turn out substantially as represented.  Certainly, there are those cases where the rancor between parents is such that a need for geographical separation is clear.  But the reason why relocations are less and less favored is because the devil you know seems more manageable than the devil you don’t.

These are challenging questions for the most gifted jurist.  The consequence falls upon a child who today is eight and who has lived in uncertain times for at least a third of his or her life.