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HomeMy WebLinkAbout2013-4813 (2) D.T., : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : K.S., : DEFENDANT : 13-4813 CIVIL TERM IN RE: RELOCATION OPINION AND ORDER OF COURT Masland, J., April 30, 2014:-- I. BACKGROUND K.G., formerly known as K.S. (Mother) and D.T. (Father) are the natural parents of K.G.T., born in October 2011, who was born out of wedlock. Shortly after the parties separated, Father filed a complaint on August 14, 2013 along with a Petition for Special Relief. A hearing on the Petition for Special Relief was scheduled for August 23, 2013; however, following a conference between the court and counsel, the parties reached an agreement which was entered as an interim order of court on August 29, 2013. At a conciliation conference on September 17, 2013 the parties agreed to the terms of the current order, which was signed by the court on September 25, 2013. Under the terms of that order, the parties share legal custody of the child. Mother has primary physical custody with Father enjoying physical custody rights that include alternating weekends from Friday afternoon through Tuesday at noon and one night a week in the “off” week from Monday afternoon until Tuesday at noon. 13-4813 CIVIL TERM On or about December 20, 2013, Mother sent a Notice of Proposed Relocation to Father expressing her desire to move to Fayetteville, North Carolina because “\[Mother’s\] husband is in the military and stationed in North 1 Carolina.” Mother proposed the following modification of the custody schedule: \[Mother\] is proposing that the parties have a shared physical custody arrangement once she relocates wherein they would share custody of the child on a two-week-on-two-week-off rotation. \[Mother\] proposes that they would meet in Richmond, Virginia on alternating Sundays at noon to facilitate the exchange. Holidays would be arranged as mutually 2 agreed to by the parties. On January 6, 2014 Father filed his counter-affidavit regarding relocation in which he objected to both the relocation and to the modification of the custody order. Shortly thereafter, Mother filed a Petition to Modify Custody Order and for Relocation Pursuant to 23 Pa.C.S. § 5337. A hearing on the petition was held on April 2, 2014, at which the court heard from Mother and her new husband, Lester Ginanni, (Husband) as well as Father and the child’s step-grandfather, Chris Olan, Jr. After a thorough review of the file, our notes from the hearing (in the absence of a transcript) and the case law, we deny Mother’s petition to relocate at this point in time for the reasons stated below. 1 Notice of Proposed Relocation, at ¶7. 2 Id. at ¶8. -2- 13-4813 CIVIL TERM II. FINDINGS AND ANALYSIS A. Introduction Mother told the court that she would not move to North Carolina if her 3 request to relocate was denied. Father responded, in kind, that he only wanted primary physical custody if Mother was permitted to move. Therefore, given this “agreement” that if Mother stays, nothing needs to be modified, we will shorten our discussion by dispensing with a point-by-point analysis of the 16 custody 4 factors. We note, however, that the factors favored Mother generally, and in a cross-town controversy, she would retain primacy. But, the difference between the parents is not overwhelming, and does not serve to tip the relocation scales in a cross-country contest. Therefore, we will address the salient modification factors within the context of the more paramount relocation issue. B. Review of Relocation Factors Section 5337 of the Child Custody Act places upon the party seeking to relocate the burden of establishing that relocation will serve the best interest of the child, considering ten statutory factors. 23 Pa.C.S. § 5337(i)(1); see B.K.M. v. J.A.M., 50 A.3d 168, 175 (Pa. Super. 2012). In determining the best interests of the child, there is no simple formula. Rather, the court must make a case-by- 3 Mother also noted that she would wait until the child’s five-year-old sister, K.G., completed kindergarten in June, a wise decision and a fact that has afforded the court some additional time to review the circumstances of the case. 4 We do not ignore our obligation to consider the 16 factors, which we have done. However, in the context of an expedited determination of the primary issue - relocation, it is sufficient that we directly address the individual relocation factors. We realize that we do this with some peril given decisions wherein our Superior Court has directed us to “consider” all 16 factors and conduct a “thorough” analysis. See J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) and E.D. v. M.P., 33 A.3d 73, 82 (Pa. Super 2011). We submit that our analysis has been thorough and will expand upon the 16 factors in a 1925 Opinion should it be necessary. -3- 13-4813 CIVIL TERM case “consideration of all factors that legitimately affect the child’s physical, intellectual, moral and spiritual well-being.” Wheeler v. Mazur, 793 A.2d 929, 933 (Pa. Super. 2002) (quoting Swope v. Swope, 689 A.2d 264, 265 (Pa. Super 1997)). We address those factors below: 1. The nature, quality, extent of involvement and duration of the child’s relationship with the party proposing to relocate and with the non- relocating party, siblings and other significant persons in the child’s life. The child has a loving, stable relationship with both parents. Moreover, all of the important people in the child’s life reside in Pennsylvania, even Husband’s family. In fact, the only person in or connection with North Carolina is Husband, and of all the people in child’s life, his bond with the child is the most nascent. Conversely, in somewhat begrudgingly acknowledging Father’s bond, Mother noted the child’s bond with Father’s family is “probably stronger.” We find no basis to similarly discount Father’s bond, but the record supports the fact that Father’s family has played an important role in the child’s life, perhaps more so than Mother’s family, about whom little testimony was received. Father and his family have stepped in regularly to care for the child when Mother’s work schedule or other responsibilities call her away. They have had regular contact with child throughout the week, beyond what the black letter of the order provides. As the court found in C.M.K. v. K.E.M., 45 A.3d 417 (Pa. Super. 2012), the mere fact that mother offered father additional periods of partial custody was not enough to offset the fact that father “had regular and continued involvement … beyond his periods of partial physical custody.” Id. at 426. As -4- 13-4813 CIVIL TERM such, when Mother suggests “\[w\]ith the custodial schedule Mother has 5 proposed, none of this would change,” she is missing a persuasive point made by Father; namely, that the quantity of time may increase by a few days per month, but the quality of Father’s regular interaction would suffer. And, it is not merely Father, but also his family (and even Mother’s family) who would not be involved in the child’s day-to-day life and upbringing for two weeks at a time. Finally, Mother suggests that the move will preserve the child’s relationship with his older sibling. This is an important factor in any custody case; however, the current order provides the siblings with more time together than Mother’s proposed split. In sum, two-weeks-on-two-weeks-off is not the best that the parties can do to maintain the relationships that have been developed in the child’s formative years. As such, this factor weighs strongly against relocation. 2. The 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. Although the child is not of school age, we do not concur with Mother’s assessment that, ipso facto, the relocation would have a minimal impact on his development. Nor, do we stop with Father’s assertion that his relationship with child will be negatively impacted. Rather, we find that buckling this toddler into an inordinate amount of travel with, at best, limited electronic communication with the non-custodial party for half of the year, places an 5 Mother’s pre-hearing Memorandum, at page 8. -5- 13-4813 CIVIL TERM 6 unnecessary strain on the child’s relationship with both parents. We suspect that Mother is more focused on the benefits of being with Husband and less cognizant of the impact her proposal would have on her relationship with her son. 3. The feasibility of preserving the relationship between the non- relocating party and the child through suitable custody arrangements, considering the logistics and financial circumstances of the parties. Mother submits that she is increasing Father’s time with the child through the proposed two-week-on-two-week-off schedule, suggesting that, currently, he spends only 10 days a month with the child. Father contests that number, pointing to what he considers many ad hoc periods of custody. Assuming there is a slight increase, and at least no decrease, this might appear to be a non-factor or one that militates in favor of relocation In the end, it is all about logistics. From a purely economic perspective this move will burden both parties with significant travel expenses, a blow that Father is less able to absorb. But more important than the financial expense of these bi-weekly sojourns are the emotional expenses. As such, we find that the relationship of both parties with the child will suffer unnecessarily by this move. Although it is, perhaps, the polestar in many child custody cases, the sheen of the 50-50 arrangement here loses its gloss below the surface. Further, beyond the inordinate amount of time the child will spend on the 6 By our calculation, even with only a few “potty stops,” the trek from Fayetteville to Etters will take closer to 9 hours than 7.5. As such, the child will spend close to ten days a year on the road (26 exchanges x 9 hours = 234 hours or 9.75 days), assuming there are no special trips to and fro. Long hours on the road, even if the siblings do entertain one another as Mother stated, will not benefit the quality of anyone’s life. -6- 13-4813 CIVIL TERM road, is the fact that Husband is not in control of where he will live and how nd long he will be there. As a squad leader in the 82 Airborne, Husband advised the court that he is assured of being in North Carolina until November of this year. After that, he does not know where he will go and, significantly, will not receive notice of his next assignment until approximately four to five months prior to that. Therefore, the disruption of the child’s life with his parents is not only burdensome and unnecessary, but is also premature. 4. The child’s preference, taking into consideration the age and maturity of the child. Obviously, the child’s preference is not a factor in this case. 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. To the parents’ credit, no evidence presented indicated either parent attempted to turn their children against the other parent. 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. We do not doubt that this relocation is in Mother’s best interest. There is nothing whimsical or vindictive regarding her desire to be with her new husband. Surely, a long distance marriage is difficult even if it has the benefit of a solid foundation. A fledgling marriage under these circumstances is stressful emotionally and financially as attested to by Mother and, frankly, as observed by the court. However, we must note that the stress was created by Mother, not foisted upon her. Still, we find that there would be an emotional and financial benefit to Mother. -7- 13-4813 CIVIL TERM 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. We are reminded of the expression “when momma ain’t happy, ain’t nobody happy,” and to the extent that Mother’s stress is relieved by the move, there may be a benefit to the child. Unfortunately for Mother, the expression and its equation do not add up. We find no emotional benefit to the child in the record before us nor is there any clear benefit to the child’s extended family on either side. Instead, the relocation would make difficult any regular contact with the child for two-week stretches of time. Perhaps, an older child might acclimate better to this arrangement, but phone calls and Skyping with a 2½ year old are challenging and do not constitute realistic, substitute arrangements to foster an ongoing relationship between the child and the non-custodial members of his family. We consider the non-economic benefits of the child remaining in Pennsylvania to outweigh any financial benefit to Mother in moving to North Carolina. There are always many gray areas in custody litigation, but based on the evidence presented, the court is able to see this factor in terms of black and white. 8. The reasons and motivation of each party for seeking or opposing the relocation. Mother claims that Father opposes this relocation solely because he is jealous of new husband. While there may be some jealously involved, Father has legitimate concerns regarding the move as noted above. Moreover, what is eminently clear is that the only reason Mother is going to North Carolina is to live with her new husband. While her motives are understandable, that -8- 13-4813 CIVIL TERM does not make them justifiable when it shakes up the child and his relationship with every other significant individual in his life. Without minimizing the depth of Mother’s relationship with her new husband, we must note that they met in July of 2013, were married three months later in October and a mere five months after the relationship began, Mother provided notice of her intent to relocate. Hopefully, Mother truly believes this move will not only benefit her but also be good for the entire family. We cannot agree. At this early juncture in her marriage and with a possible move or deployment for her husband looming in November, this move appears precipitous at best and selfish at worse. This case is similar to S.J.S. v. M.J.S., 76 A.3d 541 (Pa. Super. 2013), wherein mother’s relocation from Erie to southeast Pennsylvania (coincidentally, a 7½ hour drive) was denied because it was motivated primarily by the “premium \[mother and her paramour placed\] on their relationship and their own desires, with ‘only somewhat collateral consideration’ for the girls’ best interest.” Id. at 552. Likewise, we are concerned here with the need for stability and continuity in the child’s relationships in light of the tenuous stability of Mother’s recent marriage and Husband’s future assignment. After an expedited hearing, we cannot plumb the depths of Mother’s motives, and hesitate to deem them questionable, especially when Mother has stated, commendably, that she would not move to North Carolina if the -9- 13-4813 CIVIL TERM relocation with her son was disapproved. In the absence of that fact; however, the consideration of the child’s interest appears to be secondary. 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. Although there was testimony about Husband “flicking” the child in the cheek, the allegations were tenuous at best and cause no real concern. As such, this factor was not applicable. 10. Any other factor affecting the best interest of the child. No other factors have been proposed or considered. III. CONCLUSION Mother has not met her burden of proof by presenting compelling evidence that the relocation will serve the best interests of the child under the factors considered above. We stress that our determination is based on the facts as presented at this time and do not make a sweeping pronouncement that no relocation will ever be approved. We recognize the shifting sands of custody cases and know that the factors at play here could wash those sands away quickly. Nevertheless, we are confident that the best interests of the child will be served by denying the request to relocate to North Carolina. Accordingly, we enter the following order. ORDER OF COURT AND NOW, this day of April, 2014, following a hearing on the -10- 13-4813 CIVIL TERM Petition to Modify Custody Order and for Relocation, the Mother’s request for DENIED. relocation is Unless otherwise agreed upon by the parties the terms of the order of September 25, 2013 shall remain in full force and effect. By the Court, Albert H. Masland, J. Alexis M. Miloszewski, Esquire For Father Margaret M. Simok, Esquire For Mother :sal -11- D.T., : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : K.S., : DEFENDANT : 13-4813 CIVIL TERM IN RE: RELOCATION ORDER OF COURT AND NOW, this day of April, 2014, following a hearing on the Petition to Modify Custody Order and for Relocation, the Mother’s request for DENIED. relocation is Unless otherwise agreed upon by the parties the terms of the order of September 25, 2013 shall remain in full force and effect. By the Court, Albert H. Masland, J. Alexis M. Miloszewski, Esquire For Father Margaret M. Simok, Esquire For Mother :sal