Dissenting Judge Would Impose Heavier Burden on Relocating Parents

by Brian Vertz on April 9, 2012

LAM v. CR (2012 PA Super 45, February 27, 2012) – Superior Court affirmed decision to allow Mother to relocate from York County to Boston. No majority opinion was issued, but Judge Donohue published a dissenting opinion. In her opinion, Judge Donohue criticized the majority’s holding that the 2011 Child Custody Act did not apply. Mother filed a complaint for custody on November 3, 2010, with a request to relocate, under the old custody law. The hearings were held in March 2011. Under Judge Donohue’s interpretation, the “proceeding” commenced when the hearings were held, so the new custody law should apply.

Substantively, Judge Donohue also dissented from the decision allowing Mother to relocate. Judge Donohue noted that the majority applied the three-pronged Gruber test instead of the ten relocation criteria set forth in the new statute. In particular, Judge Donohue found that the trial court did not adequately consider factors number five (established pattern of conduct to promote or thwart the relationship of the child and the other parent) and ten (best interests).  Furthermore, Judge Donohue expressed her conviction that the Gruber factors were not supported by the evidentiary record.

While the majority found that Mother’s relocation would further her efforts to complete her post-graduate studies, Judge Donohue noted that Mother had not applied to any graduate studies program in her target city and elected to pursue the more obscure of two programs that she was considering. While most colleges, including those located in the Father’s region, would offer political science programs, Mother elected to concentrate on medieval studies instead.

Judge Donohue also noted that Mother made no efforts to use her existing education to pursue gainful employment as a teacher in Pennsylvania, which might have obviated the need to move. Instead she obtained a teaching certificate in Massachusetts, proving that she had not ruled out the possibility of teaching. Judge Donohue noted that Mother did not have a job or place to live waiting for her in Boston, so her relocation would not substantially improve the lives of Mother and her children. Mother’s extended family in the Boston area had not historically maintained regular contact with Mother and the children.

Judge Donohue also noted that Father was actively involved in the children’s lives, and coaching their baseball, basketball and soccer teams, and instructing them in martial arts. The substitute visitation arrangements proposed by Mother did not, in Judge Donohue’s opinion, provide an adequate alternative for maintaining the children’s relationship with Father. Judge Donohue also felt that the economic impact of relocation would be detrimental to the family, causing Father to incur substantial transportation expenses that he would not otherwise have to pay.

So far, neither party has petitioned for Supreme Court review. I know many lawyers who share the view of Judge Donohue that the standards for relocation should require herculean efforts by both parents to maintain the status quo. Currently, however, the law imposes no heavier burden upon the relocating party; and under an abuse of discretion standard, the trial court’s decision enjoys a presumption of correctness. Perhaps that explains this decision and the vigorous, well-reasoned dissent.

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