HomeMy WebLinkAbout96-1043 CivilCAROL L. CINGRANELLI,
Plaintiff
V.
JONATHAN D. BRANDOW,
· IN THE COURT OF COMMON PLEAS OF
· CUMBERLAND COUNTY, PENNSYLVANIA
· CIVIL ACTION--LAW
Defendant · No. 96-1043 CIVIL TERM
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., May 24, 2000.
In this difficult child custody relocation case, Plaintiff has appealed to the
Superior Court from a denial of her petition to relocate the parties' two children
from Cumberland County to Philadelphia. The bases for Plaintiff's appeal have
been expressed in a statement of matters complained of on appeal as follows:
1. The trial court erred in denying Plaintiff's Petition to
Relocate when the evidence submitted at trial established that it
was in the children's best interest to remain in Plaintiff's
majority physical custody rather than to be transferred to
Defendant's majority physical custody in the event of
Plaintiff's relocation to Philadelphia, Pennsylvania.
2. The trial court erred in denying Plaintiff's request to
relocate when it found that the move would significantly
improve the quality of life for Plaintiff, since said benefit to
Plaintiff as custodial parent will flow through to the children
and significantly improve the quality of their lives as well.
3. The trial court erred in denying Plaintiff's request to
relocate based upon its finding that the children's removal to
Philadelphia would not accommodate a relationship between
the children and the non-custodial parent which would be
comparable to that which presently exist since such is not the
legal standard under the applicable case law.
4. The trial court erred in denying Plaintiff's request to
relocate based upon its finding that said relocation would not
be in the best interest of the children, When the evidence
submitted showed that it would be in the best interest of the
children to remain in Plaintiff's physical custody and that
Plaintiff's motives in moving were not to frustrate the
visitation rights of the non-custodial parent and that the
relocation would significantly improve Plaintiff's quality of
life.
5. The trial court erred in its application of the Gruber
factors to this case.l
This opinion in support of the court's denial of Plaintiff's petition to
relocate the children is written pursuant to Pennsylvania Rule of Appellate
Procedure 1925(a).
STATEMENT OF FACTS
Plaintiff is Carol L. Cingranelli, Esq.; her date of birth is August 17, 1959;
she resides at 236 Green Lane Drive, Camp Hill, Cumberland County,
Pennsylvania.2 Defendant is Jonathan D. Brandow; his date of birth is March 21,
1951; he resides at 810 Conodoguinet Drive, Camp Hill, Cumberland County,
Pennsylvania.3
Plaintiff is a graduate of the University of Rochester (1981) and Boston
College Law School (1984).4 She has been admitted to practice in Massachusetts
and Pennsylvania.5 Defendant operates a company which engages in economic
and demographic research and strategic analysis for clients in the field of
business.6
i Plaintiff's Concise Statement of Matters Complained of on Appeal, filed April 3,
2000.
2 N.T. 4, Hearing, February 14, 2000 (Start of Hearing through Testimony of
Arnold T. Shienvold).
3 N.T. 4, Hearing, February 14, 2000 (Start of Hearing through Testimony of
Arnold T. Shienvold).
4 N.T. 3, Hearing, February 14, 2000 (Testimony of Carol L. Cingranelli through
Conclusion of Volume I).
5 N.T. 3, Hearing, February 14, 2000 (Testimony of Carol L. Cingranelli through
Conclusion of Volume I).
6 N.T. 102, Hearing, February 25, 2000.
2
The parties were married on July 18, 1987.7 Two children were born of the
marriage: Sarah Brandow, whose date of birth is May 23, 1990, and Emily
Brandow, whose date of birth is October 5, 1991.8 The parties separated in
August of 1996.9 A divorce action, filed in 1995,~° remains pending.~
In November of 1987, Plaintiff was employed as deputy chief counsel to
the state's Department of Labor and Industry.~2 In that capacity, she exercised
supervisory powers with respect to fiduciary matters, preparation of regulations,
and attorneys dealing with workers' compensation, and appeared before the
Commonwealth Court. ~3
Plaintiff and a co-worker engaged in a consensual relationship which
eventually "[went] bad," and Plaintiff subsequently reported to the General
Counsel's Office that she was being harassed at the workplace by the former
friend.TM For reasons not clear in the record, she was then asked by her employer
? N.T. 3-4, Hearing, February 14, 2000 (Testimony of Carol L. Cingranelli through
Conclusion of Volume I).
8 N.T. 4, Hearing, February 14, 2000 (Start of Hearing through Testimony of
Arnold T. Shienvold).
9 N.T. 4, Hearing, February 14, 2000 (Testimony of Carol L. Cingranelli through
Conclusion of Volume I).
J0 N.T. 16, Hearing, February 14, 2000 (Testimony of Carol L. Cingranelli through
Conclusion of Volume I).
~ N.T. 67, Hearing, February 25, 2000.
~2 N.T. 16, Hearing, February 14, 2000 (Testimony of Carol L. Cingranelli through
Conclusion of Volume I).
~3 N.T. 16-17, Hearing, February 14, 2000 (Testimony of Carol L. Cingranelli
through Conclusion of Volume I).
~4 N.T. 12-13, Hearing, February 14, 2000 (Testimony of Carol L. Cingranelli
through Conclusion of Volume I).
3
to resign, and she either did so~5 or was dismissed.~6 She is presently suing the
Commonwealth in the Federal District Court for the Eastern District of
Pennsylvania in connection with her past employment.~7
The parties' daughter Sarah is extremely fragile emotionally,x8 She is being
treated by a psychologist in Harrisburg,~9 and her medication (Zoloft) has been
increased from an initial dosage of 25 milligrams per day to 50 milligrams per
day.2° This medicine is intended to "help her deal with feelings of depression,
anxiety and obsessive thinking.''2x In addition, she displays "many of the
symptoms" of Attention Deficit Hyperactivity Disorder?
A custody evaluator has described Sarah as follows:
Sarah is an emotionally vulnerable little girl. She has been
identified by her parents as being an excessive worrier. Sarah
does not want to hurt anyone's feelings so she continuously frets
over her own behavior. The result of these concerns is to
experience increased feelings of anxiety and nervousness. She
also will become quite sad, and depressed. Sarah lacks self-
confidence and is quite insecure. These are all issues that are
being dealt with in her therapy. Additionally, Sarah shows some
~s N.T. 12-13, Hearing, February 14, 2000 (Testimony of Carol L. Cingranelli
through Conclusion of Volume I).
~6 N.T. 39-40, Hearing, February 25, 2000.
~? N.T. 13, Hearing, February 14, 2000 (Testimony of Carol L. Cingranelli through
Conclusion of Volume I).
~8 Court Exhibit 2, Hearing, February 14, 2000 (Custody Evaluation Report of Dr.
Arnold T. Shienvold, January 4, 2000), at 4-5.
~9 N.T. 12, Hearing, February 25, 2000.
20 N.T. 16, Hearing, February 25, 2000.
2~ Court Exhibit 2, Hearing, February 14, 2000 (Custody Evaluation Report of Dr.
Arnold T. Shienvold, January 4, 2000), at 4.
22 N.T. 18, Hearing, February 25, 2000.
4
signs of Attention Deficit Disorder. She has a difficult time
organizing herself, which has caused her problems in school. As
mentioned above, Sarah takes Zoloft and has been consistently
involved in counseling for the last several years.23
Plaintiff herself has been receiving therapy from a psychologist in
Cumberland County since July of 1994.24 She takes medication in the form of
Prozac for depression.25 In addition, she and the parties' other child have been
receiving family therapy from the Harrisburg psychologist treating Sarah.26
Under a long-standing custody arrangement, the parties share legal custody
of the children? Plaintiff has primary physical custody, and Defendant has partial
or temporary physical custody, approximately 42 percent of the time.28 During the
school year, Defendant's periods of partial or temporary custody include from
Wednesday at 3:30 p.m. until Sunday at 7:00 p.m. on alternating weeks and from
Thursday at 3:30 p.m. until Friday morning on alternating weeks, during the
school year.29
Under the present arrangement, Defendant has succeeded in maintaining a
very close relationship with his children through his proximity to them.3° He has
23 Court Exhibit 2, Hearing, February 14, 2000 (Custody Evaluation Report of Dr.
Arnold T. Shienvold, January 4, 2000), at 5.
24 N.T. 5, Hearing, February 25, 2000.
25 N.T. 9, Hearing, February 25, 2000.
26 N.T. 12, Hearing, February 25, 2000.
27 Order of Court, April 16, 1996.
28 N.T. 69, Hearing, February 25, 2000.
29 N.T. 68, Hearing, February 25, 2000.
30 N.T. 70-75, Hearing, February 25, 2000.
5
become highly involved in their educational and religious training.3~ Neither child
wishes to move away to Philadelphia.32
In March of 1998 Plaintiff was offered employment with the Harrisburg
law firm of Cipriani & Werner, at a salary of $50,000.00 per year; her duties were
to consist of representation of workers' compensation insurance companies.33 She
did not immediately accept the position, and subsequently failed to allay concerns
of the firm that she might initiate a personal lawsuit against the Department of
Labor and Industry.34 The offer of employment was withdrawn.3s
In November of 1998, Plaintiff secured part-time employment with the
Harrisburg law firm of Shollenberger and Januzzi.36 Plaintiff's hours of work,
however, decreased due to the illness of her parents.37 Prospects of full-time
employment with the firm eventually disappeared?
While under consideration for employment at a law firm in Mechanicsburg,
Cumberland County, Pennsylvania, named Latsha, Davis & Yohe,39 Plaintiff
31 N.T. 70-75, Hearing, February 25, 2000.
32 Court Exhibit 2, Hearing, February 14, 2000 (Custody Evaluation Report of Dr.
Arnold T. Shienvold, January 4, 2000), at 6.
33 N.T. 39, Hearing, February 25, 2000.
34 N.T. 39-40, Hearing, February 25, 2000.
35 N.T. 40, Hearing, February 25, 2000.
36 N.T. 20, Hearing, February 14, 2000 (Testimony of Carol L Cingranelli through
Conclusion of Volume I).
37 N.T. 20, Hearing, February 14, 2000 (Testimony of Carol L. Cingranelli through
Conclusion of Volume I).
38 N.T. 23, Hearing, February 14, 2000 (Testimony of Carol L. Cingranelli through
Conclusion of Volume I).
39 N.T. 37-40, Hearing, February 25, 2000.
6
accepted an offer of employment as an associate in a Philadelphia law firm.4° The
Philadelphia offer was conditioned upon her relocation to Philadelphia,4~ and
anticipated her generation of 2,200 billable hours annually.42
The offer was accepted on October 12, 1999,43 without prior consultation
with the child therapist44 and without prior notice to the children45 or their father.46
Plaintiff rented an apartment in Philadelphia for herself and the children47 and
entered into an agreement of sale for disposition of her house.48
On October 28, 1999, Plaintiff filed the Petition for Permission To Relocate
sub judice. A custody conciliation conference was held before Cumberland
County Custody Conciliator Michael L. Bangs, Esq., on December 16, 1999. The
conciliation conference was not successful in terms of resolving the issue of
relocation, but it did result in an agreement for an independent custody evaluation,
as indicated in the conciliator's report:
40 N.T. 38, Hearing, February 25, 2000.
4~ N.T. 26-27, Hearing, February 14, 2000 (Testimony of Carol L. Cingranelli
through Conclusion of Volume I).
42 N.T. 29, Hearing, February 14, 2000 (Testimony of Carol L. Cingranelli through
Conclusion of Volume I). The annual salary for the position was $70,000.00.
N.T. 26-27, Hearing, February 14, 2000 (Testimony of Carol L. Cingranelli
43 N.T. 38,
44 N.T. 16,
45 N.T. 17,
46 N.T. 69,
through Conclusion of Volume I).
Hearing, February 25, 2000.
24, Hearing, February
Hearing, February 25,
Hearing, February 25,
47 N.T. 34, Hearing, February 14,
Conclusion of Volume I).
48 N.T. 32, Hearing, February 25, 2000.
25,2000.
2000.
2000;seeN.T. 24, Hearing, February25,2000.
2000 (Testimony ofCarol L. Cingranellithrough
The parties were involved in the past with [Dr.] Arnold
[T.] Shienvold, who may have completed an evaluation several
years ago for them. The parties agree that Arnold Shienvold
will get involved in this matter again and provide some
recommendation to the Court. This should be insightful,
especially as it relates to the therapy involving the youngest
child and the potential effects upon the youngest child if a
move to Philadelphia is ordered.49
A hearing on Plaintiff's Petition for Permission To Relocate was held by
the court on February 14, 2000, and February 25, 2000. Evidence at the hearing
included a strong recommendation from Dr. Shienvold, an experienced
psychologist and custody evaluator, against granting the petition.
The following excerpts from Dr. Shienvold's testimony indicate the basis
for this opinion, which the court found persuasive:
Q. What was the primary reason for your
recommendation that the mother not relocate to Philadelphia
with these children?
A. Well, there were several reasons, coming from
various directions. I really felt that it would be impossible to
put together an equivalent schedule of contact with their father
if the children were relocated to Philadelphia, and I felt that
that contact was very, very important. The relationship with
their father has been extremely strong, very strong, and could
not be maintained to the same level if the children were in
Philadelphia. Additionally, I felt that for these particular
children the conditions of the move were such that I did not
feel that they could be given the type of support that I feel
would be necessary to make this type of move.
Ms. Cingranelli reported to me that she had taken a job
with a law firm in center city Philadelphia. From indications
of what she had said, the job would be fairly time intensive.
She would be a new associate with this firm. So she would be
relocating with the children to an apartment in center city
Philadelphia, taking a job which would be, at least, hours that
brought her to 6 or 6:30 in the evening, and might more likely
on certain evenings bring her to 7 or 8 in the evening ....
49 Custody Conciliation Report, December 15, 1999.
8
The children would need child care from after school until
she got home from work. She had talked about the possibility
of putting them in a latchkey program. They had been in a
latchkey program before. But then even after that, they may
need care. What she had hoped to do was identify a college
student or someone in the area who could watch the children. I
felt that that would be entirely new environments in the middle
of the move that would, again, be difficult for the children to
adjust to, because there were no other relatives or supportive
individuals within that environment with whom they could
gain that support, as opposed to here in Harrisburg, where they
did have their dad present to provide complementary support to
mom, depending upon what her job requirements were.
Another component is that Sarah, the oldest daughter, is a
fairly vulnerable child to begin with. Sarah has been in
counseling here in the Harrisburg area with Dr. Jose Delerme,
and she has been placed on an antidepressant medication,
Zoloft, because of some depressive symptoms, but also some
problems with organizational skills and she is obsessive. She
worries a lot.
Although Dr. Delerme had indicated that the children
could probably adjust to the change of school at this point in
time given how they've progressed in therapy, I think that that
recommendation was made--or that opinion was made based
on--looking at a very isolated number of factors of simply
changing schools and perhaps locality. He knew that the
change would occur with a change of locality, but really
believed there might be a larger supportive network for Sarah.
The way I view this is that Sarah is particularly vulnerable
because there isn't a large supportive network in this new
environment. The supportive network would really be her
mom, who I think will be less available to her.
The children have noticed for apparently the last several
months, perhaps the last three months--[Ms. Cingranelli] has
been commuting to Philadelphia to do this job approximately
three days a week--the children noted to me in their interviews
that they've seen that their mom is less available to them.
Now, it's understood that part of that reason is transportational
and the stresses of trying to do a job in a different location; but
I think part, also, is because Carol has work that she's bringing
home, and the children feel that she is less available to them to
play games or be supportive of them. I think she may
9
experience the same levels of stress in Philadelphia, whether
she's there or here, and I think that will have an impact on the
children.
Again, it's not that she shouldn't work and that she can't
bring home the stress, but by moving locations she is
undercutting some of the supportive environment. The
children will not have their same old friends. They will be
expected to make new friends. They won't have the same
teachers. Again, especially for Sarah, but also for Emily,
there's a closeness of their friends and teachers that provide
support. Their neighborhoods will be different. They won't
have the neighborhood support. And their father won't be
immediately available, so they don't have the familiar support.
You essentially eliminated all of the supportive mechanism at a
time when, in fact, their mom may be under increased stress.
Although the children now look to their mom for more of their
emotional support, that emotional support is going to be more
limited given this type of move.
So, based on those factors and there may be others if I
look through the report specifically--I did not see it as being in
the best interests of the children to relocate, given this whole
set of factors and the context in which the move occurs?
... My evaluation and my observation is that it's not in the
best interests of the children. I think that the factors involved
for [Ms. Cingranelli] in this are too unpredictable. I think [Ms.
Cingranelli's] uncertain of what the stressors and factors will
actually be in Philadelphia. She recognizes that there is a
significant expectation for hours in terms of the law firm. She
also understands that the law firm may not be--she's not
sure--may not be particularly supportive of a single mother.
She's found out in general that that's been problematic. I think
it is difficult even if her therapist is saying Carol may try to
be time conscious, I still think that the stresses are going to be
50 N.T. 9-12, Hearing, February 14, 2000 (Start of Hearing through Testimony of
Arnold T. Shienvold).
10
great, and my interest and my opinion was based around what I
thought the impact would be on the children.5~
[T]he stressors on the children ... [include the
circumstance of their] relocating to a new city. They're
moving into an apartment from a house. They're going to live
in a city neighborhood as opposed to having a backyard or a
side yard or whatever to play in. They will not have friends
nearby. They will be in a new school with new teachers ....
Their mother will be working full time at what sounds to
me like a high-intensity law firm, which she indicated to me
there's a requirement of close to 2,200 work hours that she
would need to produce. She is not certain how much evening
time, after-work-hours time that may entail. But, certainly, she
is going to be gone, she believes, until 6 or 6:30 each night and
conceivably later. The girls will have to get used to the care
providers, latchkey providers and after-latchkey providers, who
will be new people that still need to be located.
At the same time, .the girls will have to get used to the
schedule with their father where he is not as available to them
as he was in the past. Assuming that there are stressors to the
girls, they may have to find a new therapist, as opposed to
having the comfortable relationship that they have with Dr.
Delerme at this point. They would have to locate new
therapists, and, for that matter, Sarah would have to find a new
doctor to prescribe her medication .... 52
My sense [from independent custody evaluations
performed in 1997 and 2000] is that there was a routine
component to dad's interactions with his children. As I
mentioned earlier, in all these different parts, he was involved
in their schoolwork on a routine basis, he was involved in their
activities on a routine basis. He has involved them. They have
now kind of integrated religious and spiritual aspects to his
5~ N.T. 15, Hearing, February 14, 2000 (Start of Hearing through Testimony of
Arnold T. Shienvold).
52 N.T. 24-25, Hearing, February 14, 2000 (Start of Hearing through Testimony of
Arnold T. Shienvold).
11
involvement by going to Jewish services Friday night, by going
to Sunday school, those types of things. I think that there has
become this pattern of involvement that may have been its
early beginnings when I saw them in the winter of '97.53
Q In recommending that the children not relocate,
does [the father's] role that he plays in Sarah's schooling,
Sarah's academics, and in this attention problem and
organizational problem, do you feel--do you have concerns
that if he's not there to perform his function and play this role
that it will make here adjustment that much more difficult?
A Actually, I think it's broader than that. I think
that--well, part of the answer is yes. I think that at least part
of the time there are school nights and issues around school
that dad provides that structure for. So, without that, I know
that that piece is missing. My concern goes further, that if
Sarah is under stress during times of the move and her
depression increases or whatever that her need for that would
be greater. Again, it brings up in the air [Ms. Cingranelli's]
ability to do that. Plus it's not the strongest point of [Ms.
Cingranelli's] parenting. I'm not saying [Ms. Cingranelli] is an
awful parent, but it's not her strongest point in parenting .... 54
I don't think that [Ms. Cingranelli] went far enough on her
thinking as to the impacts of the move on the kids. I was
disappointed, when I had questions about the school and what
the school schedule would be like and what she anticipates in
terms of school makeup and some of the plans revolving
around the school, that she was unaware of that at the time I
interviewed her .... 55
53 N.T. 29, Hearing, February 14, 2000 (Start of Hearing through Testimony of
Arnold T. Shienvold).
54 N.T. 31-32, Hearing, February 14, 2000 (Start of Hearing through Testimony of
Amold T. Shienvold).
55 N.T. 32-33, Hearing, February 14, 2000 (Start of Hearing through Testimony of
Arnold T. Shienvold).
12
Q From your standpoint, is there any [improper
motivation] ... in Mr. Brandow's attempt to stop the relocation,
[any indication] that he is being vindictive in any way toward
mother?
A I don't think so. I think he wants to have the
children nearby. I think he loves his children and feels that his
relationship with them will be significantly harmed if he is not
able to have the proximity that he has.56
Q The reasonable alternatives available to replace Mr.
Brandow's contact with the children now, the cases also speak
in terms of it doesn't have to be identical, but it has to be a
reasonable alternative. Do you see a reasonable alternative
available here given this set of circumstances, given his level
of involvement now versus what ~vill happen in Philadelphia?
A I really don't. I think Mr. Brandow would lose, in a
two-week period of time, three overnights. Realistically, he'll
lose Wednesday night and Thursday night as overnights and
he'll lose the other Thursday night on an alternating week.
You put an alternating week schedule into effect, he'll have
late Friday night, given traffic or other concerns, until
sometime Sunday night ....
It's not as if we have simply an alternative weekend
schedule here that is not significantly affected by being in
Philadelphia versus being closer to one another. If you went--
if you have basically a Friday to Monday morning schedule or
a Friday to Sunday night schedule, I can certainly say that
there's not a significant change in moving down to Philly, But
when you're talking about an extended schedule of Wednesday
to Sunday, you're talking about a significant amount of time,
with another overnight in the midweek in between. I don't see
how you can make that comparable. You can make up the
time, meaning that he could get eight weeks of the summer or
nine weeks of the summer and two thirds of all the holidays or
something like that, so that at the end of 365 days you could
have a similar amount of time, but you're not going to have the
56 N.T. 34, Hearing, February 14, 2000 (Start of Hearing through Testimony of
Arnold T. Shienvold).
13
same quality in terms of the contact over the week, that they
have at this time?
At the conclusion of the hearing on Plaintiff's Petition for Permission To
Relocate on February 25, 2000, the court took the matter under advisement? On
February 28, 2000, the court issued the following order, declining to grant the
petition to relocate:
AND NOW, this 28th day of February, 2000, upon
consideration of Plaintiff's Petition for Permission to Relocate,
and following a hearing held on February 14, 2000, and
February 25, 2000, and the court finding (1) that Plaintiff's
move to Philadelphia is not motivated simply by a desire to
frustrate the visitation rights of the non-custodial parent or to
impede the development of a healthy relationship between the
children and the non-custodial parent, (2) that the children's
removal to Philadelphia would not accommodate a relationship
between the children and the non-custodial parent which would
be comparable to that which presently exists, (3) that the move
is likely to significantly improve the quality of life for Plaintiff,
(4) that the move is not likely to significantly improve the
quality of life for the children, and (5) that on balance, the
relocation would not be in the best interests of the children at
this time, Plaintiff's Petition for Permission To Relocate is
denied.
Plaintiff's appeal from this order was filed on March 17, 2000.
Statement of law. "[T]he guiding polestar in a custody matter is what is in
the best interests of the child." Frank & Gale, Pennsylvania Family Practice
Manual §9.02(B), at 328 (1990). This principle applies to child custody relocation
57 N.T. 37-38, Hearing, February 14, 2000 (Start of Hearing through Testimony of
Arnold T. Shienvold).
Plaintiff indicated to Dr. Shienvold that if the court disapproved her
relocation request she would remain in the Cumberland County area with the
children. N.T. 27, February 14, 2000 (Start of Hearing through Testimony of
Arnold T. Shienvold).
58 Order of Court, February 28, 2000.
14
cases. See Thomas v. Thomas, 739 A.2d 206 (Pa. Superior Ct. 1999); Baldwin v.
Baldwin, 710 A.2d 610 (Pa. Superior Ct. 1998); Lee v. Fontine, 406 Pa. Super.
487, 594 A.2d 724 (1996); White v. White, 437 Pa. Super. 446, 450, 650 A.2d 110,
112-13.(1994).
"Relocation" cases present special difficulties for the courts. See Gruber v.
Gruber, 400 Pa. Super. 174, 583 A.2d 434 (1990). "[I]n every relocation dispute
the following interests must be accommodated as nearly as possible: the custodial
parent's desire to exercise autonomy over basic decisions that will directly affect
his or her life and that of the children; a child's strong interest in maintaining and
developing a meaningful relationship with the non-custodial parent; the interest of
the non-custodial parent in sharing in the love and rearing of his or her children;
and, finally, the state's interest in protecting the best interests of the children." Id.
at 184, 583 A.2d at 438-39.
The Pennsylvania Superior Court has stated the resultant rule in relocation
cases as follows:
[I]n order to justify a relocation of the children by the
custodial parent, the custodial parent must demonstrate (1) that
the move is likely to significantly improve the quality of life
for the parent and the children; (2) that the move is not
motivated simply by a desire to frustrate the visitation rights of
the non-custodial parent or to impede the development of a
healthy relationship between the child and the non-custodial
parent; and (3) the feasibility of creating substitute visitation
arrangements to ensure a continuing, meaningful relationship
between the children and the non-custodial parent.
Kaneski v. Kaneski, 413 Pa. Super. 173,179, 604 A.2d 1075, 1078 (1992).
In assessing a custodial parent's motivation for relocating, a court must be
careful "not to equate a former spouse's desire to escape from unpleasant
confrontations with the non-custodial parent or from the turmoil which may result
froTM a failed marriage with a desire to defeat visitation rights." Gruber v. Gruber,
400 Pa. Super. 174, 185 n.9, 583 A.2d 434, 439 n.9 (1990). Furthermore, "when
relocation is likely to result in a substantially enhanced quality of life for a
15
custodial parent, often the child's best interests will be indirectly but genuinely
served." Id. at 183, 583 A.2d at 438 (1990); a proponent of relocation need not
show an independent advantage flowing to the child which is distinct from the
benefits found to inure to the petitioning parent. Zalenko v. White, 701 A.2d 227,
229 (Pa. Superior Ct. 1997). Finally, a "court should not insist that the advantages
of [a relocation] be sacrificed and the opportunity for a better and more
comfortable life style for the [custodial] parent and [the child] be forfeited solely
to maintain weekly visitation by the [noncustodial parent] where reasonable
alternative visitation is available and where the advantages of the move are
substantial." Gruber v. Gruber, 400 Pa. Super. 174, 186, 583 A.2d 434, 439-40
(1990).
On the other hand, there are some cases where a relocation of a child by the
custodial parent will not be in the best interest of the child. See, e.g., Baldwin v.
Baldwin, 710 A.2d 610 (Pa. Superior Ct. 1998); White v. White, 437 Pa. Super.
446, 650 A.2d 110 (1994). In this regard, the opinion of an experienced and
qualified psychologist acting in the capacity of an independent custody evaluator
can be highly informative to the court. White v. White, 437 Pa. Super. 446, 650
A.2d 110 (1994). The evaluator's opinion may properly include an observation
that the custodial parent failed to give sufficient thought to the disruptive effect of
a relocation upon a child before adopting a plan for his or her own benefit. Id. Of
importance, as well, is the motivation of the noncustodial parent in opposing the
relocation. Id.
Application of law to facts. Although this court has not hesitated to grant a
petition of a custodial parent to relocate a child where the Gruber criteria appeared
reasonably satisfied,59 several factors in the present case led the court to deny
Plaintiff's Petition for Permission To Relocate at this time. These included (a) the
59 See Krusen v. Krusen, 44 Cumberland L.J. 314 (1995) (petition of
mother/lawyer to relocate to North Dakota granted over objection of father).
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strong opinion of the independent custody evaluator that a relocation would be
detrimental, (b) the persuasive rationale for this opinion as set forth in excerpts
from his testimony above, (c) the advantage to Plaintiff of a move to Philadelphia
was somewhat self-induced by her own conduct and choices, (d) Plaintiff's failure
to consider the disruption to the children's lives before acting to accept the
aforesaid obligations, including local residency, in Philadelphia, (e) the particular
susceptibility of Sarah to further psychological harm from a loss of the close
contact with her father which she presently benefits from, (f) the inability of the
court to approximate the routine nature of personal contact between the father and
children at this time should the children move away, (g) the presence of Sarah's
treating psychologist in the Cumberland County area, (h) the children's
preferences, and (i) the absence of any improper motivation on the part of the
father in opposing the relocation.
Based upon these considerations, the court denied Plaintiff's Petition for
Permission To Relocate.
Donald T. Kissinger, Esq.
130 Walnut Street
P.O. Box 810
Harrisburg, PA 17108
Attorney for Plaintiff
John J. Connelly, Jr., Esq.
134 Sipe Avenue
Hummelstown, PA 17036
Attorney for Defendant
BY THE COURT,
esley 01'~,~r.,'. ~/' '
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