Smith v. Confer is a relocation case decided by the Superior Court on May 3. It’s non precedential but it’s a wild one. The parents of the child shared custody from August 2016 until August 2019 when mother decided to relocate to Texas from Mercer County.  Her initial petition requested custody in Texas during school breaks but she later amended to seek primary physical custody in Texas. Father promptly filed an emergency petition to secure custody and was awarded primary custody subject to mother’s filing a proper petition to relocate under 23 Pa.C.S. 5337.  

           In the Smith case, the parties settled in early 2020 on an arrangement which kept the child primarily with father with partial custody in Texas. But in January 2022 Mother again sought primary custody in Texas in a petition to modify. The court appointed a guardian ad litem to help assess the merits of life in two locations 1,200 miles apart. That guardian issued a report indicating that the child was well settled in Pennsylvania and that mother’s request should not be granted as it disrupted a status quo that seemed conducive to the child’s development.

Then things started to change. The child had injured his hand while wrestling in late 2021. The treating physician recommended that the child refrain from wrestling for the balance of the season while the hand healed. In what is unquestionably an exercise of poor judgment, father decided to let his son wrestle despite the physician’s recommendation. To compound this, father and son decided that son’s resumption of wrestling against the physician’s advice should be kept from mother.

            Communication between the parents was through Our Family Wizard, a private website which keeps records of parent messages related to the child. The purpose is to make a lasting record of communications so that there is a means to verify what parents say and when. The Wizard is the place where parents are supposed to discuss things like scheduling and whether a child should wrestle following an injury. The utility of this medium is that you can’t unwrite what you say. Certainly, you can reverse what you said, but the inconsistency remains for the parties and the courts to see. Needless to say, none of us likes to be confronted with our prior inconsistent statements.

            Father acknowledged that he shared with his son communications between the two parents on Our Family Wizard. He also permitted the child to read the Guardian ad Litem’s initial report to the court.  When the Guardian ad litem learned that the wrestling incident was now supplemented by Father’s decision to allow the 14 year old to access parental communications on the Family Wizard, the guardian reversed her recommendation and reported that the relocation to Texas should be approved. The trial court adopted that recommendation despite a tepid preference of the child to live in Pennsylvania and what otherwise appeared to be a stable custodial relationship between father and son. In its May 3 ruling the Superior Court affirmed this change.

            There really isn’t enough in the appellate decision to assess whether the relocation decision was the right one. As noted, the father’s decision to effectively overrule a treating physician’s recommendation without consultation with mother can’t really defended.  But, what is troubling is the weight given to father’s decision to allow access to both the guardian’s reports and the Family Wizard communications.

            The question of what information about custody disputes should and should not be shared with children is a challenging one. Jurists like to opine that “the children should be kept out of the quarrel of the parents.” But while that certainly has merit when young children are involved, this case involves a child presumably in 8th grade. While parents should always exercise discretion about what aspects of a custody dispute are revealed to children, the notion that children over 12 should be shielded from all aspects of their parent’s battles is patently unrealistic.

            In this case mother proposed to move the child from one community to another more than a thousand miles away after the child had lived his entire life in Mercer County. A guardian ad litem had been appointed to investigate and to report to the parties and the court. The first report was published in March 2022. The trial was not begun until July. Under Pennsylvania law a 14 year old child can contract for therapy. 35 Pa.C.S. 10101.1-.2. But the reasoning of the courts in this case suggests while the child is mature enough to secure independent mental health treatment, that same child is too immature to read a report directly related to where and with whom that child will live. And is it realistic to ask a parent to tell a child who asks what happened after being interviewed by a guardian: “Sorry kid, that’s confidential.” Imagine the reaction of a child who finds out after a trial that the guardian first said he should remain in Pennsylvania but later reversed her view and decided Texas was the better choice. Perhaps that was a sound decision but it is both cruel and unnecessary to tell a 14 year old that information about his/her future residence is too onerous for the child to grapple with.

            As for Our Family Wizard, certainly there is no need for children to have regular access to adult discussions related to management of the them. But there are times when parents will lie about their positions to a child leaving the child to wonder who is telling the truth. Take the example of a child who wants to accompany his best friend’s family for a Spring break trip to a Florida resort. Father approves the trip and solicits mother’s approval as joint legal custodian. Whether for sound reasons or not, mother withholds her consent. When the child learns that he/she cannot go to Florida, it is only reasonable to expect that the kid is going to ask why? If mother tells the child she’s not blocking the trip, is it unreasonable, immoral, or capricious for father to show the child the electronic document setting forth mother’s objections? We all know what happens if father can’t: “Kid, your mother is a liar and I can prove it, but I’m not allowed to because you are not allowed to see anything she writes on the Family Wizard.” So, we have all the anger and vituperation, but “discretion” demands that we withhold the facts. The appellate cases tell us that as children mature, we should be more deferential to their well considered views concerning custody. 23 Pa. C. S. 5328(a)(7). But, a child can’t have a well considered view if denied access to the facts.

            Again, Smith v. Confer may have yielded the right result. But when one considers that a child who has been in school for 8+ years in Pennsylvania will be moving to Texas because his father made a stupid decision about wrestling and because the father allowed a 14 year old to read reports and emails directly related to the child’s wants and needs, the reasoning offered presents some challenges. What is needed is a nuanced approach to what information children in custody disputes should have. The current custody statute mandates that judges evaluate conduct by parents intended to alienate children from a parent (Sec. 5328(a)(8)) and how parents manage custodial conflicts (Sec. 5328(a)(13). There are many times when children are provided with this kind of information by parents motivated by promoting alienation and conflict. But it is naïve to think that children can or should be isolated from all information related to their daily lives just because parents are litigating. Part of the skill of parenting is grasping when children need to be made aware of adult issues and ensuring that those communications are handled responsibly. We don’t have the benefit of knowing what was written in either of the guardian ad litem’s two reports. But, certainly the concluding recommendations regarding where the child should reside are something a 14 year old should be permitted to see. And in the case of children age 14 and up, consideration should be given to having the child in the courtroom while the hearings take place so that he or she can see why primary residence will be in Texas or Pennsylvania.

Smith v. Confer