The recent case of E.D. v. M.P. , filed on Nov. 9, is very important for family law attorneys as it is the first reported appellate case pertaining to child custody relocation under the new Child Custody Act.
The new Child Custody Act went into effect on Jan. 24. The act revamped child custody law in Pennsylvania by codifying existing case law as well as rewriting other areas. In particular, the new act drastically changed the law pertaining to child custody relocation. Prior to its enactment, child relocation was governed by the Superior Court case of Gruber v. Gruber and its progeny. Gruber set forth a three-pronged test focusing on the potential advantages of the proposed move to the parent and the child, the motives of each party and a substitute custody schedule.
The new statute (§5337) contains 10 factors to be considered in granting or denying a relocation request. Included in the 10 factors is a catch-all provision that some argue directs the analysis to the new 16 factors under Section 5328 to be considered by the court when awarding custody. Further, the new relocation statute provides for mandatory notice requirements and other directives to be followed by the litigants, counsel and the court.
Though the new custody act provides many benefits, it also contains ambiguities. One such ambiguity relates to the applicability of the new act to the cases already pending before the trial courts. The act provides: "A proceeding under the former provisions of 23 Pa.C.S. Ch. 53 which was commenced before the effective date of this action shall be governed by the law in effect at the time the proceeding was initiated."
In the case of E.D. v. M.P. , a custody order was previously entered in 2009. E.D., referred to in the opinion as the father, filed a petition for special relief seeking permission to relocate with the parties' child from Susquehanna County, Pa., to Barton, N.Y. E.D. filed his petition on Jan. 25, the day after the new act took effect. The E.D. case addresses, in part, whether the old law or the new law should be applied, given the fact that the case existed prior to the effective date of the act, but a new petition was filed after its enactment.
The relevant facts of the E.D. case are as follows: E.D. and M.P., referred to in the opinion as the mother, had a child who was born in October 2007. According to the opinion, E.D. had primary physical custody of the child and M.P. had partial custody of the child every week from noon on Wednesday until noon on Friday pursuant to an April 30, 2009, order. As stated above, E.D. filed a petition for special relief on Jan. 25 seeking permission to relocate with the child to Barton, N.Y.
According to the opinion, his motive for moving was based upon his ability to advance in his employment and live with his girlfriend upon relocating. Interestingly, the trial court granted E.D. "leave to relocate immediately to Barton and scheduled an evidentiary hearing for May 2, 2011." A rule to show cause as to why the requested relief should not be granted was also issued. On Feb. 11, M.P. filed an answer to E.D.'s petition, opposing his relocation request and also filed a counterclaim seeking primary custody of the child.
According to the opinion, on May 2, an evidentiary hearing was held where E.D. and M.P. testified as well as E.D.'s mother and M.P.'s father. The trial court granted E.D.'s request to relocate to Barton with the child in an opinion and order dated May 3 (entered on May 6). The trial court also revised the custody schedule providing M.P. with partial physical custody of the child every other weekend from 4:30 p.m. Friday until 6 p.m. Sunday with the option of longer three-day weekends when the child has off from school on Friday or Monday as well as three additional five-day periods during the summer months and on alternate holidays. In the Superior Court opinion, the trial court's findings were cited, which reflect that M.P. no longer was working on weekends, which appeared to be the genesis of the prior order providing her with midweek custody each week and no weekend custody.
M.P. filed a timely notice of appeal and raised six issues. Generally, the issues raised by M.P. on appeal pertained to whether the trial court erred in failing to deny E.D.'s request for relocation because of his failure to comply with the notice requirements under the new act; whether the trial court erred and abused its discretion in applying the incorrect standard in deciding relocation cases; whether the modification of M.P.'s custody time was a realistic alternative custody schedule; whether the trial court abused its discretion and erred in failing to consider all of the factors with respect to M.P.'s counterclaim for primary custody; and whether the trial court erred in finding that the past aggression issues of M.P.'s older son (a half-sibling) was a compelling factor to negate the separation of siblings policy.
Paramount to the Superior Court's analysis in this case is whether the new act applies. The ambiguity contained in the new act regarding same focuses on the word "proceeding." The Superior Court highlighted that the act does not expressly define the term "proceeding" and that the act "appears to use the terms 'action,' 'proceeding' and 'matter' interchangeably." The Superior Court found that the legislature intended to distinguish between an "action" for custody and subsequent "proceedings" in connection therewith.
The Superior Court stated that to do otherwise would create an "absurd and unreasonable result." If the act were only to apply to new cases started after the effective date of the act, the now-repealed law would continue to apply to all petitions and motions filed in custody cases that began prior to the enactment of the new act until the children emancipate. This clearly would create an absurd and unreasonable result. Therefore, the Superior Court held that the new act applied to the E.D. case.
The new relocation statute provides strict notice provisions. Under the new act, if a party intends to relocate, a specific notice is to be sent by certified mail to the nonrelocating parent. The notice shall contain a proposed revised custody schedule along with a counter-affidavit enabling the nonrelocating parent to object to proposed revisions to the custody schedule and to the proposed relocation altogether. In the present case, E.D. did not provide a notice to M.P. Further, M.P. did not file a counter-affidavit.
The Superior Court found that M.P. waived this issue on appeal because she failed to raise it before the trial court. Pursuant to the act, a full expedited hearing is required prior to a relocation occurring unless exigent circumstances exist. In the present case, the father did not allege exigent circumstances and the trial court did not find exigent circumstances existed. However, the trial court granted E.D. permission to relocate on the same day he filed his petition. Because neither objected to any of the procedural failures that occurred, such as E.D.'s failure to provide the proper relocation notice, M.P.'s failure to file a counter-affidavit, and the trial court's granting an interim relocation, the Superior Court treated all issues as waived.
M.P.'s second, third and fourth issues raised on appeal pertained to the trial court's failure to consider "adequately the 10 factors for relocation under Section 5337(h)." In the opinion, the Superior Court agreed with M.P. and stated: "Section 5337(h) mandates that the trial court shall consider all of the factors listed therein, giving weighted consideration to those factors affecting the safety of the child." The Superior Court further stated: "To the extent that the trial court did consider these factors, it did so in a cursory manner without references to the record or explanations for its conclusion." It is to be noted that under §5823(d) in the new act: "The court shall delineate the reasons for its decision on the record in open court or in a written opinion or order."
It is clear from the Superior Court's opinion that the trial court did not satisfy this requirement in making its decision. The following is an example provided by the Superior Court in the opinion: "To the extent that the trial court addressed these factors at all, it appears to have done so in a single sentence, mainly that 'we specifically find that the move would benefit [child] in that he has a good relationship with his father as well as with [girlfriend].'" The Superior Court reiterated: "Effective appellate review requires the trial court to consider each of the factors set forth in Section 5337(h), and to state both its reasoning and conclusions on the record for our review."
With regard to the trial court's modification of the existing custody schedule, the Superior Court indicated that it could not assess the merits of the trial court's conclusion that the new custody schedule would permit M.P. to "maintain a good relationship" with the child as the Superior Court found that "the trial court provides no explanation for its decision that the new schedule, which mother opposes, is better than the previous schedule."
M.P.'s fifth issue on appeal related to the trial court failing to consider the 16 factors when awarding custody under §5328 in addressing M.P.'s counterclaim for primary custody of the child. The Superior Court directed that on remand the trial court should conduct a thorough analysis based upon the factors set forth under §5328(a).
Under M.P.'s final issue on appeal, pertaining to the trial court concluding that prior aggressive acts by her older son toward the child were a compelling factor in deciding not to award custody to her, the Superior Court noted that on remand the trial court must evaluate the nature of the relationship between M.P.'s older son and the child regarding any risk to the child as well as their sibling relationship.
The Superior Court's decision also provides guidance in a number of other areas. For example, it reminds the trial court that it shall consider and analyze all members of the household, which includes any criminal history as well as a history of drug and alcohol abuse and the mental and physical condition of the members. Lastly, the opinion contained a reminder in footnote 3 that E.D. is not entitled to any presumption in his favor as a result of the trial court's decision to permit the relocation prior to the evidentiary hearing.
This case is important for all family law practitioners because it is the first published opinion under the new custody act. It is refreshing that the Superior Court provided clarity to the ambiguity of the act pertaining to the applicability of the act to existing cases where petitions are filed after the effective date of the act. The case also provides an affirmation that the new act has ended the reign of the Gruber analysis and that the trial court must analyze all 10 factors when deciding a relocation action. Finally, pursuant to the E.D. case, the notice requirement and counter-affidavit requirement of the relocation statute can be waived if not properly objected to at the hearing. This case should be added to the family law practitioner's tool belt.
Michael E. Bertin is a partner at the Philadelphia law firm of Obermayer Rebmann Maxwell & Hippel. He is co-author of the book "Pennsylvania Child Custody Law, Practice, and Procedure." He is also co-chairman of the custody committee and chair-elect of the family law section of the Philadelphia Bar Association, and a past member of council and the executive committee of the family law section of the Pennsylvania Bar Association.