“Proceeding” to Relocate Under the New Custody Law
The recent Pennsylvania Superior Court matter ofE.D. v. M.P., 33 A.3d 73 (Pa. Super. 2011) stands as the first reported case in Pennsylvania interpreting the relocation provision under the new Pennsylvania custody statute. In E.D., the party known as E.D., who was the child’s primary custodian, requested to relocate with the child to another state while M.P. argued against such a move.
In the E.D. case, E.D. attempted to relocate the child to another state simply by filing a Petition for Special Relief (“Petition”) requesting the same. Such a tactic would not be out of place under the old custody statute, and the previously controlling case of Gruber v. Gruber, 400 Pa. Super. 174 (1990). In response, M.P. filed an answer to the Petition and a Counterclaim seeking a modification of custody, and also made claims regarding the interaction between her older son and the child-at-issue.
Under the new custody statute (23 Pa.C.S.A. Section 5337), if one seeks to relocate a child under a custody order, certain notice procedures must be followed, including ensuring specific service requirements are fulfilled and providing specific documents to the other party(ies). E.D. failed to follow the requirements of Section 5337. Despite this failure, the trial court granted the Petition and allowed the relocation. M.P. filed an appeal of the trial court’s ruling that was heard by the Superior Court which entered the E.D. v. M. P. Opinion.
Perhaps the single most important aspect of E.D. is its ruling on the applicability of the above-mentioned relocation portion of the new custody statute. The new statute requires that any custody “proceeding” commenced before the effective date of the new statute would be governed by the prior custody statute. It appears that E.D. conducted his affairs as if the prior custody statute was still in effect while M.P. argued that the requirements of the new custody statute ought to apply. The underlying matter had been initiated and litigated under the prior custody statute; however, when E.D. attempted to secure relocation of the child, the new custody statute was then in effect. After hearing arguments, the Pennsylvania Superior Court rejected the interpretation that the new custody statute ought only to apply to custody actions initiated after its passage. It ruled that the new custody statute applies to any motion or petition filed in any custody action of any age provided it was filed after the passage of the new custody statute. Otherwise there could be the absurd result of the old custody statute still applying, perhaps nearly eighteen (18) years from now, while concurrent matters are controlled by the new custody statute.
Unfortunately for M.P., despite the procedural blunder of E.D. in failing to adhere to the requirements of the new custody statute, M.P., in turn, failed to raise E.D.’s procedural non-compliance with Section 5337 as an issue when she opposed the Petition. As a result, the Superior Court ruled that she waived her right to raise the argument that E.D. violated Section 5337 in his bid for relocation.
Regardless of the above setback, the Court did positively respond to M.P.’s additional arguments regarding other provisions of the new custody statute. When reviewing the trial court’s decision, the Superior Court found that the trial court dispensed with the matter with a single sentence despite that Section 5337 requires the strict analysis of ten (10) different factors for relocation by the trial court before rendering a decision and Section 5823 requires the trial court to provide a delineation of all of the reasons for its decision on the record in open court or in a written decision with regard to the aforesaid ten (10) factors. Therefore, in the face of Section 5823 of the new custody statute, it was clear to the Superior Court that the trial court’s single sentence did not fulfill Section 5823’s requirements for a detailed decision. As a result, the Superior Court was unable to adequately review the trial court’s decision.
Similar to Section 5337’s requirements for a relocation matter, Section 5328 of the new custody statute requires a trial court to analyze sixteen (16) different factors when rendering a decision regarding a complaint/petition for, and/or to modify, custody. Also as above, Section 5323 requires the trial court to provide a delineation of all of the reasons for its decision on the record in open court or in a written decision with regard to the aforesaid sixteen (16) factors. Needless to say, if the ten (10) factors for relocation were not considered in the trial court’s single-sentence-order, neither were sixteen (16) factors dealt with for M.P’s counterclaim for custody modification. Clearly then, when ruling upon M.P.’s counterclaim for custody modification, the trial court again fell far short of Section 5823’s requirements for a detailed decision. Indeed, the trial court’s decision made no mention of M.P.’s claims regarding the interaction between her son and the child-at-issue.
Ultimately, the Superior Court remanded the case back to the trial court, directing it to comply with the requirements of the new custody statute and issue an opinion with considered analysis of the twenty-six (26) different factors mentioned above. Furthermore, the Superior Court specifically directed the trial court to address the relationship between M.P.’s child and the child-at-issue. Finally, the Superior Court, noting additional non-compliance with the new custody statute by the trial court in the first hearing, also directed the trial court to comply withall of the provisions of the new custody statute, requiring the trial court to address all members of the parents’ households, review all criminal and substance abuse histories for each, as well as their health records.
In sum, the Superior Court has made it clear that there must be full compliance with the requirements of the new custody statute, that the new custody statute applies to all motions and petitions filed after its passage regardless of the age of the underlying case, and that theGruber case is no longer in effect for Pennsylvania’s custody relocation cases.
Originally published on March 13, 2012 as the featured story in “Upon Further Review” and can be found here and reprinted in Volume 34 Issue No. 2 (June 2012) of Pennsylvania Family Lawyer.