Tag Archive for: relocation

Application of Custody Relocation Law

Section 5337 of the new custody laws sets out the procedures and standards for relocation requests. E.D. v. M.P., 2011 PA Super. 238, is one of the first cases to apply the new relocation law. In E.D. v. M.P., Mother appealed after the lower court granted Father’s relocation on the grounds that Father didn’t comply with the provisions of Sec. 5337 among other issues.

First, the Superior Court found that the new law did apply in this instance since Father filed his petition for special relief in the form of relocation on January 25, 2011 and the new law came into effect on January 24, 2011. Under the new law, the first error was Father’s filing of a petition and Mother’s filing of an answer. Under Sec. 5337 (c) regarding notice of relocation, the initial step procedurally is for the party requesting relocation to send notice to all other interested parties by certified mail, return receipt requested a certain number of days prior to the date set for relocation. Included with the notice should be a counter-affidavit that the opposing party can complete indicating whether or not they agree or disagree with the relocation and/or the modified schedule. If there is any opposition, a hearing will be needed. The counter-affidavit evidencing opposition should be filed with the court and served on the party requesting relocation in the same manner as received; by certified mail, return receipt requested. The next error relates to Sec. 5337 (g) which calls for a hearing to occur before relocation unless exigent circumstance exist. In E.D. v. M.P., the lower court granted Father’s request to relocate immediately without any finding or allegation of exigent circumstances.

Further, Sec. 5337(h) outlines the factors to be considered before a relocation is granted. Those factors include: (1) Nature, quality, extent of involvement and duration of child’s relationship with party proposing to relocate and with the non-relocating party, siblings and other significant persons in the child’s life; (2) Age, developmental stage, needs of the child and the likely impact the relocation will have on the child’s physical, educational and emotional development, taking into consideration any special needs of the child; (3) Feasibility of preserving the relationship between the nonrelocating party and the child through suitable custody arrangements, considering logistics and financial circumstance of the parties; (4) Child’s preference, taking into consideration the age and maturity of the child; (5) Whether there is an established pattern of conduct of either party to promote or thwart the relationship of the child and the other party; (6) Whether the relocation will enhance the general quality of life for the party seeking relocation, including, but not limited to, financial or emotional benefit or educational opportunity; (7) Whether the relocation will enhance the general quality of life for the child, including, but not limited to, financial or emotional benefit or educational opportunity; (8) The reasons and motivation of each party for seeking or opposing the relocation; (9) The present and past abuse committed by a party or member of the party’s household and whether there is a continued risk of harm to the child or an abused party; and (10) Any other factor affecting the best interest of the child. The party proposing relocation has the burden of establishing that the relocation will serve the best interests of the child. Each party has the burden of establishing the integrity of that party’s motives in either seeking the relocation or seeking to prevent it. The Superior Court agreed with Mother that the lower court failed to consider all the factors under Sec. 5337(h) in reaching its decision.

Ultimately, the case was remanded to the lower court for further proceedings applying the applicable laws. The decision indicates that the Superior Court will be diligent in scrutinizing decisions to determine if they have followed the provisions of the new law. This is true in relocation just as it is in standard custody decisions under Sec. 5328 of the custody laws.

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Evolving Issues in Family Law

Below are summaries of some of the most recent decisions on various family law topics.

Paternity by Estoppel – K.E.M. v. P.C.S.

In this case, Appellant, mother of G.L.M., brought an action for support against Appelle, the alleged father of G.L.M. Appellant was married to H.M.M. at the time G.L.M. was born. Further, H.M.M. had supported the child and acted as a father figure to G.L.M. for most of the child’s life. Appellee filed a motion to dismiss the support action on the basis of a presumption of paternity and paternity by estoppel.

A presumption of paternity arises where a child is born into an intact marriage. In that circumstance, absent clear and convincing evidence to the contrary, the husband will be deemed to be the father. In this case, H.M.M. submitted to a paternity test which ruled him out as the father. Accordingly, the presumption of paternity was defeated.

Paternity by estoppel acts to impose an obligation on the party who holds themselves out as a father to the child and supports the child to continue to support the child. Appellee’s argument that H.M.M. had acted as G.L.M.’s father prompted the lower court and Superior Court to grant his motion to dismiss the support action against him and continue to hold H.M.M. responsible for G.L.M.’s support.

The Supreme Court of Pennsylvania ultimately reversed the decision and remanded back to the lower court for further proceedings. Specifically, the Supreme Court held that the purpose of paternity by estoppel is to keep families intact and protect the best interest of the child by shielding them from claims of illegitimacy and, potentially, a broken family. Accordingly, the court would need to be convinced that it was in the best interests of G.L.M. to continue to recognize Appellant’s husband, H.M.M., as the father. No such evidence was presented at the hearing. In summary, paternity by estoppel is still a viable principle in Pennsylvania, however, it must be supported by an analysis of what’s in the child’s best interests to succeed.

Custody Relocation – L.A.M. v. C.R.

In this case, the appeal challenged the lower court’s decision to grant mother’s petition to relocate to Boston with the children on the basis that the provisions of the new custody law were not applied. The Superior Court upheld the lower court’s decision finding that the provisions of the new custody law did not have to be complied with since mother’s petition to relocate was filed before the new laws came into effect. The Appellant argues, however, that the hearing took place after the new laws came into effect.

The crux of the issue is how to interpret the what constitutes a proceeding under the new law. Any proceeding commenced after the effective date of the law is to be governed by the new law while any proceeding commenced before the effective date of the law is to be governed by the law in effect at the time the proceeding was initiated. The lower court found, and Superior Court affirmed, that mother’s petition was the determinative proceeding and since it was filed before the effective date of the new law, the old law should govern at the hearing.

Judge Donohue disagrees with the majority and posits that the provisions of the new custody laws should have governed over the hearing. Judge Donohue’s interpretation categorizes the hearing as a separate proceeding from the petition. Accordingly, since the hearing occurred after the effective date of the new law, it should be governed by the new law. Judge Donohue argues that this interpretation of the term proceeding allows for the “broadest possible application of the procedures and legal standards in the new Act.”

Second, Judge Donohue believes the trial court erred in allowing the mother to relocate. Under the framework of the new law which arguably should have applied, there were ten factors the trial court should have considered before ruling on the relocation pursuant to 23 Pa C.S. § 5337(h). The trial court failed to consider all the factors under the statute and for that Judge Donohue argues it erred as a matter of law in reaching its decision.

Furthermore, Judge Donohue argues the trial court did not even consider the necessary factors under the old law as outlined in Gruber. Specifically, the trial court concluded the relocation would be in the best interests of the children and substantially improve the quality of life for mother and children without evidence supporting the same. Specifically, mother did not have a job or a place to live lined up in Boston. Further, mother argued the move would also allow her to continue her education but she had not been accepted into any graduate programs in Boston. Finally, Judge Donohue was not convinced that an adequate alternative custody order could be established based on the heavy involvement of father in the children’s lives and mother’s lack of income or other resources to share transportation in the event of a move.

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