Moyer v. Moyer, a non-precedential decision issued by the Superior Court on November 20 discusses the challenging question of whether a parent can relocate without notice in a setting where the relocation is triggered by abuse that has been decided as a matter of law.

The parties lived in Berks County and had three children in elementary school. In June 2022 mother took the children to visit family in Somerset County. While there she filed a divorce complaint and one for protection from abuse. The latter case ended in a stipulated abuse order with two years of non-contact. Father moved to have the custody matter returned to Berks County and that request was granted so that the case was heard in Berks.

In the end the Court awarded Mother sole legal and restricted Father to one weekend a month. Father’s appeal reflects his belief that he merited advantage because Mother had done nothing to conform to statutory requirements for relocation. 23 Pa.C.S. 5337.

In a footnote, the Superior Court finds that the issue was waived in two ways. It was not recited in the concise statement under Pa. R.A.P 1925(b) and in the context of the abuse case, Father had agreed to a temporary custody order which allowed the children to remain in Somerset County. That last basis would seem fraught with problems. Had he not raised temporary custody in the abuse case, chances are good he would have left court without any custody arrangement. In a world where abuse courts have little if any time to address support and custody even though invested with such powers, it seems unfair to hold the request for a temporary order or an agreement as a waiver of arguments that relocation violated the statute.

Meanwhile, the real thrust of the case is that sexual abuse of a spouse coupled with violent behavior in the presence of elementary aged kids is going to prevail over any claims of unconsented relocation. The Court does not endorse the relocation. It didn’t need to in a world where Father simply ignored a process to assess whether his one child had an autism spectrum disorder and after threatening to kill the Mother the night before she left for Somerset.

As the opinion suggests, the relocation and custody factors recited in the statute are not an end in themselves, but a path to assess “best interests” of the children. In a setting where there is a stipulated order for abuse arising from allegations of sexual assault and threats to kills the children’s mother, one has to wonder how Father thought he had a path forward even after he successfully contended that Berks Count was the proper venue under “home state” standards.

In a sense, this custody case was lost during the abuse proceedings. The allegations made in that context are horrific. Yes, you can form an agreed order “without prejudice.” But when the no contact is set at two years, this case came back to Berks County with a certain unpleasant scent. If the charges of abuse were false or grossly overstated, Father probably should have taken his chances and demanded a trial on the abuse.

809 MDA 2023 (11/20/23)