Since 2011, we have had a statute setting forth both a procedure and a judicial standard for the determination of requests to relocate with a child. We have previously observed that the appellate decisions coming both before and after enactment of 23 Pa.C.S. 5337 have made relocation a rocky road. However, a panel decision issued on August 17 in J.G. v. K.G clarifies that the professed “duty to mitigate” is one rock too many.
Marriage in Indiana produced two children ages five & seven. The parties moved to Allegheny County in 2016 so that they could live near mother’s family. Three months later the parties separated and reached an agreed custody arrangement that was essentially alternate weeks “plus” with mother having primary physical custody. The case reports father was involved in children’s’ activities.
In February 2019, mother’s employer was sold and she lost her job. She quickly found alternate work, but that offer would necessitate relocation to San Francisco. In March, she issued a notice of intent to relocate and father filed opposition. The case was heard in October and the Court denied the request. Mother appealed citing six (6) alleged errors.
The Superior Court reversed and remanded on the basis that the trial court imposed an improper standard. By statute the standard under Section 5337 (i)(1) is whether the relocation promotes the interests of the children. In so doing, the court is expressly authorized to evaluate the bona fides of the parties in seeking or opposing relocation.
The Trial Court Opinion interpreted the statute as imposing a burden on a relocating parent to demonstrating that she had sought to “prevent relocation” by “exploring every possible avenue for employment even at a lower salary and outside of her specific field.” In a 2-1 decision, the Court held that the law imposed no such duty. In short, the burden did not include a requirement that the proposed relocation be unavoidable.
Regardless of which side you favor on this issue, the precedent (or lack thereof) is a vital matter. In many, if not most relocation cases, this writer has either read or witnessed the availability of “local alternatives” that avoid relocation is often a central issue in the hearing. It is typical for the “remaining parent” to devote lots of cross examination to what jobs the relocating parent has explored locally and the failure to do so is often treated as a demonstration of improper motivation (i.e., escape from the non-custodial parent). Under this ruling, those questions might well become legally irrelevant beyond the simple question: Did you apply for any jobs locally before accepting or pursuing the Californian job? A negative answer, “No, I did not look for anything in Southwestern Pennsylvania,” might go to motivation, but once the witness answers that she did explore local possibilities, it would seem that a remaining parent does not have the right to conduct lengthy questioning or produce independent evidence of local employment alternatives. As this case comes down, the core question is only, “would California be better for the kids?” Of course, pregnant in that question is what effect relocation would have on the children’s relationship with their father once they move 2,500 miles away. But one of the matters that often slows the progress of any relocation case is the exploration of local alternatives.
The case is non-precedential. Nevertheless, it is nonetheless highly important and may affect how relocation cases are tried.
N.B. Not discussed in this case but worthy of mention is the impact of COVID-19 on those cases that are pending. As a society, we are accustomed to packing kids in crowded planes to spend summers with another parent. That is going to be an issue. Moreover, as COVID-19 continues to change the work environment in terms of both overall employment and telecommuting, conventional thinking about those issues is going to change.