Vacillating Parent Loses Custody to Decisive Moveaway Parent

by Brian Vertz on March 21, 2013

Why does a parent agree to a “temporary” or “interim” custody order that allows the other parent to move away with the children, when he or she intends is fighting to win custody from the relocating parent? A wish for marital reconciliation might be one reason, or perhaps an effort to win favor with the court by appearing to be even-tempered and amiable. Maybe the parent left behind hasn’t lined up the resources to handle primary custody yet. Or, the non-relocating parent might hope to minimize legal fees by settling or intimidating the moveaway parent to back down. Whatever the reason, it seems to be a losing stategy, as a recent unpublished decision of the Superior Court illustrates.

In A.P. v. R.P., No. 2341 EDA 2012 (March 15, 2013),  the wife left a note on the day when she moved to her parents’ house in New York State after filing for divorce, taking the parties’ three year old child with her.  Mother did not send the required notice to Father by certified mail, perhaps because she wasn’t aware of the custody law that went into effect on the very day she moved out.  Father worked midnight shift at the federal prison and moonlighted during the daylight hours selling wares on Ebay. He probably couldn’t get an overnight sitter when Mother moved out, so he consented to an “interim” order granting her primary custody on a temporary basis. A three day custody trial began eleven months later. (No one in the case appealed the violation of a law that requires speedy disposition of custody actions, not that it would have made much difference.)

Father’s effort to win custody was not half-hearted. He had the advantage of a favorable recommendation by a psychologist who was appointed as a custody evaluator at his request. The Court held that the evaluator relied too heavily upon statistical data pertaining to the parents’ school districts, which was not highly relevant to a preschool-aged child. Father tried to prove that Mother, a Mexican citizen, was a flight risk who took the child to Florida without his knowledge. The Court noted that she always returned. Father testified that Mother’s family and friends alienate the child from him. The Court criticized Mother’s heartless abandonment of the marital residence, and her family’s role in assisting, but did not find that the child’s affection for Father was diminished.

It is hard to say that the outcome would have been different if Father had objected to Mother’s relocation from the outset. Yet, the Superior Court held that her failure to give proper notice and follow the relocation procedures of the new custody law was excusable, because Father consented.

This decision was a non-precedential decision of the Superior Court of Pennsylvania, which cannot be cited in court for any reason. This summary is provided in the interest of lawyers and judges who might be interested in the logic and strategy involved in such decisions.

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