ANOTHER CUSTODY RELOCATION “CALLED BACK.”
The desire of a parent to relocate to another state and take the children along is one of the most challenging forms of custody case lawyers and clients can face. When this law began to evolve in the 1990s with Gruber v. Gruber, 583 A.2d 434 the Superior Court took the approach that if a move was advantageous for the primary custodial parent, it was probably in the best interest of the children as well. Ironically, that case was issued as the legal community was amidst a sea-change in parenting as a whole. In the 1980s fathers began to advocate for more than just every other weekend. They were becoming fully engaged in not just the fun parts of parenting (e.g. coaching sports) but also demonstrated a willingness to step up for the more mundane tasks like teacher conferences, dental and wellness visits. Many fathers asserted and were awarded equal physical custody. That trend continues today.
Not long after Gruber was published courts began to quietly abandon the standard that case advocated, particularly in cases where the “staying” parents played an active role in the child’s life- an advantage lost when relocation to a faraway place is granted. The 2011 Custody Act passed in Harrisburg substituted a statutory relocation analysis. 23 Pa. C.S. 5337. The case law decided since the new statute has demonstrated that courts now approach relocation requests cautiously and the career opportunity of the parent advocating relocation now takes a back seat to analysis of how, if at all, a relocation benefits the kids.
The latest entrant into this fraught arena is Mahalik v. Mahalik, decided October 9. The parents divorced in August 2022 having brought forth two children, ages 11 and almost 8. Mother re-married and her family now included two other step-children. In their divorce settlement the parties agreed to shared custody and adopted a 2-2-3 schedule where each parent has two days of each week and they alternate three day weekends. During July 2023, Mother informed Father in writing of her plan to relocate to suburban Washington DC, where her new spouse resided. He filed opposition. Because their arrangement was not recorded as a court order, Father filed an action asking that the arrangement be ratified by the court. Instead, a conference officer decided Mother should have primary and Father would have partial. Mother then filed a Petition for Relocation. Father, opposed that petition and asked that the change in custody imposed by the court be vacated as it amounted to a change in custody without any judicial hearing. This was denied and the matter proceeded to trial with both the custody and relocation issue now fully controverted.
The matter was tried over three days in January 2024. The Court heard testimony from the future employers, a nanny and several friends of the parties. All agreed that children, then 10 and 7, really did not have much to opine about in terms of the merits of suburban Washington versus suburban Philadelphia.
In late February, the trial court ruled. It increased father’s time pending relocation in June but otherwise approved the move with Father to get most of Summer and a weekend per month when school was out of session. Father promptly appealed and sought a stay of the new arrangement. The trial court denied his request but the Superior Court later granted it. Mother asked the Supreme Court to reverse the stay. It denied the request, meaning that the children should resume school in Pennsylvania while the appellate process continued.
The first line of argument to the Superior Court was that the trial court should not have altered the agreed 2-2-3 arrangement without a record hearing and a 16 factor statutory analysis per 23 Pa.C.S. 5328(a). The trial court responded, acknowledging that the procedure then in effect in Chester County improperly afforded custody conciliators too much authority but then added that it could not undo what the court may have improperly done before the full de novo trial took place in January 2024. The Superior Court accepted this explanation although it leaves open the question of whether private custody arrangements not reduced to a court order are to be given any weight when one party bring the matter to the court for a judicial resolution. The opinion suggests that the agreed arrangement should have been adopted by the court pending a full hearing but does expressly hold that.
The second argument on appeal challenged the finding that the move benefitted the Mahalik children. Yes, mother had remarried a Maryland resident and secured a better paying job in Virginia than that she had in Pennsylvania. But even the trial court’s opinion acknowledged that the children were well established in Pennsylvania under an agreed 50/50 arrangement that was working well until mother’s remarriage prompted a desire to enjoy her life with a new spouse. The trial court also noted in its opinion that the eldest child was bonded with school classmates in a school that was superior to that proposed in suburban Washington.
Another post-Covid wrinkle in this case is the issue of remote work. The relocation involved a “minimum” drive of 2.5 hours each way. Father argued that mother could work remotely, but her employers testified that they required 3 days per week “on premises” in order to get the benefit of mother’s lucrative compensation package. Future relocation cases are going to inevitably involve the question of why the moving parent cannot arrange to work without physically moving.
We don’t have the trial court opinion but it appears from the trial opinion excerpts that judge who heard the case was conflicted by it. She lauded the fact that there had been no serious custody issue until mother moved to relocate and that the children did not know a “soul” in their prospective new home. What does seem to come through in the trial court analysis is that mother’s job opportunity offered a breath-taking compensation package that would bring many advantages to mother’s household generally. The Superior Court was not similarly impressed. While emphasizing that appellate courts are not tasked to re-assess the facts as heard at trial, the appeals court found that there is little reason to approve relocation in a setting where the children were “thriving” in an existing custody environment. The only advantages to the relocation inured to the mother in the prospect of a second happier marriage and a new employment arrangement. In a world where the statute and case law dictate that “Kids needs come first” these collateral benefits did not justify a relocation grant. The Court reversed and remanded the relocation order.