Last week Newsweek published its annual rankings of America’s Top High Schools.  This is a much awaited publication for those with children of that age and it is undoubtedly well circulated in the admissions offices of our colleges and universities.

These compilations also commonly hit the family lawyer’s desk whenever there is a hot dispute over primary custody or relocation. In reading the recent history of relocation cases, the decided focus of Superior Court cases is on the matter of how the relocation benefits the child and in many instances we are given these rating compilations by custody litigants who want to show that a new school would be “better” for the child or the present placement is “fine.”

Many judges and hearing officers deciding these cases will admit these magazines “for what their worth.” Technically, there are myriad evidentiary problems with any “ranking.”  The content of the magazine is itself hearsay.  The person making the statement that “Quaker Valley is the 271st best high school in the nation.” is not a named person at all.  It is a magazine.  So we don’t know the identity of the person who decided that Quaker Valley was No. 271 while Penncrest was No. 276.  We also don’t know the specifics of how this was decided.  The article will tell you about general parameters employed such as college matriculation and graduation rates and average SAT scores.  But the typical editors who do the ranking don’t tell us how these metrics are weighted or whether a planetarium is a plus while a ceramics kiln is neutral.  Lawyers who stand up and object to the admission of these rankings have excellent reasons why the objection should be sustained and most law school professors would harshly grade any student of Evidence who would admit “speculative hearsay compiled without ascertainable scientific foundation.”  Of course you could subpoena the editors of Newsweek to explain all of this but, alas, they rarely come to court.

What really happens? Most judges this author has seen will admit the document over objection noting that the actual “value” of this as evidence is not easily ascertained.  I suspect they then lug the magazine back into chambers and scan it first to see whether their high school got in.  Then they will glance at the schools the litigants want to compare and spend a couple of minutes seeing what data there is that they can assess (e.g., grad rates and SAT scores).  Because, even they realize that Newsweek and other magazines of its ilk don’t really spend the other 51 weeks of the year studying America’s 18,000+ high schools. Americans love rankings of all stripes and a magazine’s job is to amuse its audience.

The other thing that happens in chambers after the dust of a school enrollment fight settles is lamentation. I suspect that what most judges would privately tell the litigants is that if they truly wanted a positive outcome, the best thing two parents could do would be to agree on a school placement and support the child together in that placement.  For most children a custody war is a diversion from life and education over which they have no control.  In many instances it is clear that No. 36 ranked Conestoga High School is a superior school to No. 168 Fox Chapel.  But outstanding kids from Fox Chapel go to Harvard too and in the vast majority of custody disputes, Harvard is not really on the horizon.  There are always special cases where a child has really unique gifts (not as much as their parents think) or special educational challenges where a special educational “fit” is called for.  But, most judges grade on the “curve.”  They are not trying to raise young venture capitalists or nuclear physicists.  They want children who will not commit crimes and pay taxes when they grow up.  Judges get to see plenty of adults who are very bright but never mastered the “no crimes” or “pay taxes” thresholds of adult life.  So often they are put off by parents who think that a child custody trial is a sound means of securing maximum educational achievement.  Parents are often disappointed to discover that “The judge doesn’t seem to care.”  Ironically, judges do care, but from their elevated view on the bench they often see quite clearly that moving a child from No. 284 Haverford High to No. 126 Kiski will not vastly improves the chances for post grad studies in math at Stanford.

The ratings wars will go on because we love quick answers to complex questions. And if you have a custody case where you want to enroll Eloise in No. 113 Upper St. Clair while the useless father wants to keep her at a school that doesn’t even have a ranking, be certain to get the August 11 edition of Newsweek and bring it to Court so the judge can see that you are a concerned parent.  But don’t bet the down payment on a house in western Pennsylvania on the belief that the magazine is your ticket to a new life in a new town.  It’s not how the cookie crumbles.

An interesting and, yes, published relocation case was decided by the Superior Court on June 15. D.K.D. v. A.L.C. 2016 Pa. Super 123 involved custody of a child, age 8, who suffers from Pervasive Personality Disorder. The parents separated shortly after the birth of L.D.  They were not divorced until 2015.

L.D. showed signs of language and speech delays at 18 months and the formal diagnosis of an autism spectrum disorder was made at age 3. After separation the parents lived in close proximity to each other but father’s custody was limited to four hours during the week and alternate Saturdays for an additional three hours.  Whether rightly or not, mother appears to have insisted that visits be confined to her home because L.D. did not respond well to changes in location.

In February, 2014, father filed for larger blocks of custody and a holiday and vacation schedule. Mother responded with a request to relocate with L.D. to Florida where her mother resided. In March, 2015 with the trial of the conflicting claims concluded the relocation request was denied, the court noting that it saw the only change to be a possible improvement in mother’s life by living with her mother.  The Allegheny County court’s order also expanded father’s custody over time and instructed mother that L.D. could and should be taken from mother’s home during father’s visits.

The Order of March 23, 2015 prompted mother to file for reconsideration and special relief. One of the ostensible issues was the failure of the order to address custody for mother if she relocated to Florida without L.D.  Mother also sought a new order premised upon her securing a job in Florida with the US Dept. of Veterans Affairs.  Further upping the ante, mother expressed her intention to purchase a home in Florida for mother and L.D. to reside in.  The trial court took the bait, granting reconsideration and re-opening the record to take additional evidence in June, 2015.

The second hearing was the charm and an August 2015 order granted the relocation. This time the trial court found that not only would mother’s life be enhanced but L.D.’s as well.  The factors which previously weighed against relocation: stability for a child with learning/emotional problems, father’s inability to preserve a relationship following a 1,000 mile move and mother’s unjustified need to control father’s visits faded into the mists.  The remaining factors were adjudged neutral, which is to say favoring neither party.  Curiously, the trial court found that mother did a better job of providing for L.D.’s needs but also expressed confidence that father could step up to do more if mother would only permit that.  But the court found that, despite its prior findings, mother would probably be more cooperative if permitted to relocate away from father.

Father appealed and came out swinging with the canard that the trial court had resorted to the long reviled “tender years doctrine”, holding that young children belong with their mothers. The Superior Court axed that argument finding that the record showed no such prejudice.

But, the appellate court was troubled by the sudden shift in mother’s “circumstances” after losing the initial round of the case. Suddenly a $36-41,000 job appeared in Florida and equally suddenly maternal grandmother committed to acquire a $435,000 home for her daughter and L.D. to reside in.  From the opinion, these appear to be the only new facts underlying reconsideration.  Terming the new order of August 2015 a juridical volte face, the Superior Court found that the record did not support the new conclusions of life enhancement for the child.

In denying relocation during Trial 1, the Allegheny County court found that relocation would disrupt stability of school, neighborhood and friends for a child afflicted with a condition that made any adjustments extraordinarily difficult. The trial court also used mother’s professed willingness to leave the child with father in Pennsylvania if relocation were not granted as a tool to rule against father in Trial 2.  Thus, if mother moved and left the child behind, the child would inevitably have to move to father’s neighborhood and enroll in father’s school district.  Father’s offer to move into the child’s existing district if mother relocated without L.D., was not given any weight.  The trial court also found to have ignored the detriment of losing the existing health and behavioral supports in Pennsylvania that L.D. relied upon in addition to his parents.  In addition the Superior Court noted the inconsistency in finding that L.D. needed to preserve his relationship with his father in denying relocation during Trial 1 but finding that alternate weekend visits in Florida by father was an adequate substitute during Trial 2. In a telling observation, Superior Court Judge Bowes writes that aggregating blocks of visits around school breaks and summer is not a viable substitute for the regular twice weekly contact and alternate Saturday visits that L.D. had been accustomed to have with his father.

Mother’s conduct in relocating to Florida without L.D. while the litigation was still underway and sending L.D.’s grandmother back to Pennsylvania to assume primary custody also did not win her any favor. The appellate court saw this choice of not permitting father to have more time while mother was working at her new job in Florida as emblematic of mother’s insistence upon control.  Other inconsistencies also emerged.  Mother moved the Florida professing that she could find no work in Pennsylvania despite her law license.  She also professed that she could not afford to live in her current $290,000 home.  But with the help of her own mother she was able to secure a $435,000 home in Florida with only a $40,000 job and roughly $30,000 in support and alimony from father.  The Superior Court’s review of mother’s job search in the two years prior to her relocation revealed that it was almost exclusively in pursuit of employment in the Sunshine state.  The home acquired with grandmother’s support is two hours away from grandmother’s own home so that the wholesome image of a tri-generational family in one place proved to be illusory.

Finding that mother’s actions “expose her insincerity” the Superior Court reversed the order granting relocation and directed the trial court to hold a hearing to determine how L.D. could be transitioned to live with his father. If mother abandons Florida to resume residence in Pennsylvania the panel suggested she file a petition to modify the now “corrected” custody order.

This case is disturbing in many aspects. Experienced practitioners are used to seeing parents play that “You want more time, I’ll move away” card.  It would appear that even after a year to prepare a relocation case Trial 1 was an abysmal failure for mother; with little evidence of any real benefit to relocation.  But having burned both time and money failing with Trial 1, mother was instantly permitted to “double down” and change the entire theory of her case with new facts.  Reconsideration of a court ruling is supposed to be limited to correcting the evidence or understandings that were of record.  It should never be an invitation to “re-try” a different case employing different facts or theories.  In a world where custody cases are always fluid with ever changing facts, courts need to insist that absent truly compelling circumstances, litigants get one trial at a time.  A child who, by all accounts, fears change and needs stability has endured 2 years of litigation and will now experience two relocations and a change of primary custody because mother decided not to line up a credible case until after she had lost the first trial.  Both the bench and the bar need to realize that the quest for complete records and best interests can often produce enormous backlogs, huge legal bills and instability for the very children we are all tasked to protect.  The Superior Court appears to have done the right thing in reversing this chain of errors.

In a year when there have been relatively few published opinions and few of those offering much precedential value, the year ends with an important ruling by the Pennsylvania Supreme Court.

The question in A.S. v. I.S. (8 MAP 2015) revolved around the matter of when a step-parent can owe child support.  In this case, a mother gave birth to children in Serbia in 1998 and later married the Defendant. Together they brought the children to America and the Serbian father of the children lost contact by 2006.  In 2009 Mother and step-father separated.  In July 2012 Mother expressed an intention to move to California.  Step-father filed to prevent that asserting that he was in loco parentis (in the place of a parent) and as such had custody rights under the statute governing standing.  Standing was sustained and the custody case concluded with the parents being awarded shared legal and physical custody of the children.  No doubt chastened by having her plans to relocate foiled, Mother filed an action for support to which step-father objected stating that his position in loco parentis did not imply a financial duty to the children.

Father’s position was sustained by both the trial and Superior Courts. Mother petitioned the Supreme Court to hear the matter and review was granted.

The 3-1-1 decision issued on December 29, 2015 does not establish a bright line test. Fundamentally, it sustains the view found in Com. ex rel McNutt. v. McNutt that step-parents are not generally liable to support children who are neither their progeny nor their adopted children. 496 A.2d 816,817 (Pa. Super. 1985).  See also DeNomme v. DeNomme, 544 A.2d 63,65 (Pa. Super. 1988)   It also approves the holding in Drawbaugh v. Drawbaugh, holding that assertion of “minimal” continuing contact with a step-child does not trigger a duty of support. 647 A, 240,242-3 (Pa. Super. 1994).

But here, step-father’s action to prevent mother’s relocation and his pursuit of shared legal and physical custody was enough to upset the general rule.

Noting that this case was analogous to L.S.K. v. H.A.N., 813 A.2d  872 and Fish v. Behers, 741 A.2d 721 (Pa. 1999) which dealt with facts giving rise to a form of equitable estoppel, Justice Baer writes that where a party assertively hold himself out as a child’s parent, that party may be held to the correlative duties of a parent.  He notes that step-father in this case assumed and vigorously pursued parental duties in trying to halt the relocation and in pursuing shared custody.

As noted, this is not a bright line test. One can read the majority language in page 13 of the opinion as holding that a step-parent may cross the “support” line by invoking judicial remedies of any kind.  Such an interpretation appears to be inconsistent with Drawbaugh. So finding the line where support may be due from a step-parent may not be easy but it seems clear from this case that stopping relocation and then securing shared custody is “enough.”

The opinion does also present a conundrum of sorts. The parties separated in 2009.  Step-father filed for divorce in 2010.  His complaint for custody was not filed until 2012.  All we are offered about the period between the 2009 separation date and the 2012 filing date is that the parties “informally shared custody of the children.”  We don’t know what that three year “sharing” involved in a physical sense and that prompts the question of how soon after a separation must a step-parent act to assert in loco parentis before he or she loses that status. Alternatively, what kind of sharing effectively “tolls” any temporal limitation?  In an age when serial live in relationships without benefits of marriage are increasingly the “norm”, can Boyfriend 1 sue for custodial rights when mother and child now reside with Boyfriend 3.

We have written on this subject before reporting a Superior Court decision earlier this year that put a new focus on benefit to the children as a condition to successfully secure an order allowing a parent to relocate.  The rule of precedent requires trial court judges to pay attention to and follow Superior Court rulings and three recent decisions in Berks County appear to demonstrate that the trial courts are taking heed.

On August 14 Judge Scott Lash issued a ruling in Miller v. Lee.   In that case a mother’s new husband had been offered employment in Alabama. He had accepted the job and purchased a home there by the time of trial. The parties had been working under a 2009 agreement which gave Mother primary physical.  While the Court appears to have been somewhat critical of Father’s passivity concerning mechanical duties like physician appointments, it also found that Father had a solid bond with the child; that Father could not afford to travel to Alabama and that a proposed schedule that gave the child summers with Father was not an adequate substitute even though the actual time allotment was roughly equivalent.  Although the increase in the pay for the stepfather was substantial, the Court did not see it as worthy of disrupting Father’s regular involvement in all aspects of the child’s life.  It was also noted that this was not a relocation that would produce a termination if not accepted.


Two weeks late Judge Lash ruled in Thompson v. Stoudt.  Here the parties had an informal week on/off arrangement for their two children. Mother asked to move from Berks to Carbon county to live with another man.  Again, the court found Father’s conduct to be less than exemplary finding that Father was prone to snap at the children.  But the Court still found the relationship positive and the parties hereto fore, cooperative.  It being clear that the relocation would disrupt the 50/50 schedule and noting no enhanced benefit to the children in particular the Court denied the relocation.


On September 28, Judge James Bucci issued his ruling in Moore v. Moore.  In this case the parents had adopted a child from West Africa and brought him home to Berks County.  Shortly thereafter the couple separated but they shared the now six year old child on an equal basis.  Mother formed a relationship with a man who resided in Delaware County and filed a request for relocation.  Shortly thereafter she enrolled the child in activities in Delaware County and otherwise presumed that her request would be granted despite Father’s filed opposition.  The Court took umbrage at what it perceived to be a desire on mother’s part to relocate the child before the Court could act on her request.  With Mother having sold her home in anticipation of the relocation, the Court ordered that the child reside primarily with Father until the relocation trial could be held.  Following the trial the court made the temporary placement permanent holding that Mother’s approach to the entire matter was disruptive to a young child who already had endured a move from one continent to another and a fairly immediate divorce by his adoptive parents.  While Mother posed that the school system in Delaware County was superior to that in Berks, the Court found that any advantages the school system might offer were undercut by the potential loss of continuous contact with the Father.


Each of these opinions is extensive: 20-30 pages.  Both litigants and their counsel are encouraged to study how courts are addressing these intensely emotional cases.  The first two cases are PICS Case Nos. 12-2128 and 12-2145.  As we have reported earlier, the moral to the story appears to be that relocation is not going to be easily granted unless there is a well defined plan and a palpable direct benefit to the child.

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.


We have previously noted that there are few cases more vexing than those involving one parent deciding to leave this state with a child and move to another to pursue what he/she perceives as better pastures. Clear case law has developed since 1990 that set a standard for when relocation should be granted and setting forth that once the Commonwealth has jurisdiction over a case a parent wishing to take the children to live out of state needs to file and meet some burdens to sustain their position. Over time this area of judge made law has produced many opinions, not all of which can be seen as consistent. But in a statute passed in November, 2010 and effective on January 26, 2011 the legislature has stepped in and issued some rules and procedures of its own. Ordinarily, the word of the elected legislature is the final one but under a doctrine known as separation of powers, it has been the historic province of the Courts to regulate procedures of law while the General Assembly is delegated the responsibility of deciding the “substance” of Pennsylvania law.

Much of the new statutory law is not different than what has evolved as judicially written law since the 1990 case, Gruber v. Gruber 583 A.2d 483(Pa. Super. 1990).   23 Pa. C.S. 5337 now makes clear that relocation requires either consent of all persons with custodial rights to a child or judicial approval. Those aspiring to get court approval to move with the child to another state are now required to initiate the process by serving a “notice” on other parties with custodial rights stating their intention to relocate not less than 60 days before a proposed move or 10 days after the person learns of a need to relocate (e.g. employer mandated transfer). The ten day notice applies only where the party wishing to move had no reason to know of the transfer and relocation cannot be delayed for the sixty day period required.

The notice must be very specific on some subjects. It must identify the new address where the parent intends to move (and a mailing address if it is not the same) and who else will be residing at this new address including the ages of those individuals. The new phone number must be provided if available. There must be a stated reason for the relocation. The proposed date of the move must be in the notice, as well as the identity of the new school and district. There is to be a proposed order if the existing order needs to be modified as part of the relocation. These are all good things to have adopted. Unfortunately, the statute says they are to be provided “if available” which affords a basis to file a barren notice and claim insufficient time to research these issues. This would however enhance arguments that the move is not thought out and should be rejected for that reason.

The notice does not have to be filed with the court although it certainly would help if it was since that establishes a clear date to measure the sixty days (or ten days) from. It is to be mailed certified with a return receipt. The notice is to contain a “counter-affidavit” which is actually specified in the statute. Unless the non-relocating parent files this counter-affidavit with the court within 30 days of receipt of the notice to relocate, the non-relocating parent shall be “foreclosed” from objecting to the relocation. If the objection is filed on a timely basis, the non-relocating parent is also empowered to ask that the Court enter an order denying the relocation. The objection must be verified as to its truth and requires specification if the objection is to the relocation or any modification sought as part of the relocation (as in where the distance makes the old schedule unrealistic).

If no timely counter-affidavit is filed the party wishing to move must file an affidavit that service was properly made and that the time period allowed has passed without filed objections. The return receipt card is also to be part of the affidavit and there is also to be a petition to confirm the relocation with a proposed modification order where necessary. Where an objection is properly filed to the relocation or the modification of the custody order, a hearing is to be scheduled to consider the request. The hearing is to be expedited and held before relocation is granted unless the court makes a finding that exigent circumstances justify a finding that relocation must precede the hearing.

In deciding a contested relocation case, the factors set forth in Section 5337(h) the factors are essentially the same that have evolved under the case law, such as the nature, quality and duration of the child’s relationship with each of the parents involved. Part of that is also the age and developmental needs of the child or children involved, taking into account the child’s needs. The court is to look at the financial and logistical suitability of alternative custody arrangements and to assess the child’s preference. It is also to examine whether the parents will promote or thwart the child’s continuing relationships with the other. The Court will assess whether relocation enhances the quality of life for (a) the parent proposing it and (b) the children involved. The Court is to examine motivation of the parties and to consider whether there is any history of abuse as that term is defined in the Protection from Abuse law.

The party proposing the relocation has the burden of showing that the move will promote the best interests of the child under subsection (i). Each party has the burden of showing the integrity of their motives in the litigation and failure to provide reasonable notice may be considered as indicia of deceit. This may also result in a finding of contempt and/or an assessment of attorneys fees.

Finally, we now have a definition of “relocation” albeit a subjective one. Under Section 5322 it is a residence change that significantly impairs the ability of the non-relocating party to exercise custodial rights. Whereas the prior jurisdictional standards (i.e. out of county) have been substituted for an analysis relevant to the realities of geography – a move within a county may actually pose a greater impact on custody than a move out of state. Now, any relocation which affects the non-relocating parent’s custodial rights will be subject to this statute.

We live in a mobile society.  We also live in a society that experiences a high rate of divorce.  These two facts make for some of the most contentious litigation found in the domestic relations world.  It is the fight over whether one parent, usually the one with primary physical custody, can take a child to another state to reside there on a permanent basis.

When we have children we all form the Currier and Ives image of the happy nuclear household.  The children will grow up in an intact family with the love and respect of both of their loving parents.  But when mom and dad split and mom shortly thereafter announces that she wants to move to Texas to re-up with her former boyfriend the term “nuclear family” takes on a whole new meaning.  It was bad enough that father got dumped.  It was worse that she took most of the assets.  Then there was the child support. And now, topping the cake, is the concept that the children should live 2,000 miles away and see their loving father once a month and four weeks in the summer.


Can this happen in 21st century America?  It does every day.  Part of the reason is that none of the facts recited in the last paragraph really matter a lot.  Custody is not about parental pain.  It is about what is in the childrens’ best interests.  So, how could it be in a child’s best interest to grow up hours away from one parent.  Courts struggle with this issue every day.  And, in so doing, they are not unmindful of how a custody result may be grossly unfair to a parent even though in the child’s best interest.


There is a three prong test employed when one parent proposes to move a significant distance from the other parent taking the children with them.  The test comes out of a 1990 Superior Court case called Gruber. v. Gruber. 583 A.2d 434 (1990).


Prong 1: What is the potential advantage of the move and the likelihood the move will substantially improve the life of the custodial parent and the children? Also is the move the product of a momentary whim on the part of the custodial parent?


Prong 2: Does the motivation for the move have integrity and is the reason for opposing the move have a similarly sound basis? and


Prong 3: Are there available realistic alternative arrangements for substitute partial custody or visitation and will such arrangements adequately foster an ongoing relationship between the child and the non-custodial parent?


The initial burden is upon the party proposing the relocation to show the “advantage” to the parent and child.  Each party has the burden with respect to the second prong addressing integrity for the dispute over relocation.


In these cases, past is usually prologue.  A non-custodial parent intimately involved both physically and emotionally in rearing a child presents a major hurdle to that custodial parent who wishes to relocate.  A parent whose involvement has been limited to routine visits and little more may find him or herself in a disadvantaged position.  Courts also examine whether parental conflict over custody issues may make distance an attractive option.  On the other hand there are also cases where a modest level of conflict drives one parent to ask to relocate because “life will be simpler.”  This does not usually make for a successful case.


The most common and most nettlesome area of conflict is over the question of whether relocation “will substantially improve the life of the custodial parent and the children.” There is language in the Gruber case that seems to imply that benefit to the custodial parent may be enough even without palpable advantage to the children.  In metropolitan areas with competitive schools and rich cultural resources, it is sometime difficult to persuade a court that there is an advantage to the child associated with the move.


In recent years there has been a vast increase in this breed of custody litigation.  There are many issues to consider and many reported cases addressing the issue.  But Gruber stands as the seminal case.  The cases decided in the 1990s tended to focus on the benefit to the parent and permit relocation even though a distinct advantage to the child was not often clear.  But in the past decade, the trend has shifted against relocation with recent cases weighing how the children benefit from the move in ways that differ from the happiness of the custodial parent.  One thing remains clear.  People who have already experienced and angst and heartache of separation and divorce do not respond well to plans intended to permit relocation of their children to distant places.