B.K.M. v. J.A.M.
50 A.3d 168
| Pa. | 2012Background
- Mother and Father married in Sweden (2002); Mother is Swedish citizen with ulcerative colitis leading to multiple surgeries; the family relocated to Sweden in 2010 for medical reasons; Father filed for divorce in 2010; custody proceedings occurred in October 2011 with a January 2012 order granting shared custody but with different physical custody outcomes based on Mother’s residence, and denying relocation to Sweden.
- The trial court’s January 2012 order provided shared legal custody and shared physical custody if Mother resides in Montgomery County, PA, but awarded Father primary physical custody if Mother resides in Sweden, and denied relocation.
- Mother appealed challenging the court’s application of the new Child Custody Act (23 Pa.C.S. §§ 5321-5340) and specifically its handling of relocation and best interests factors.
- The Act’s relocation provisions (23 Pa.C.S. § 5337) include 10 factors for relocation and a presumption against relocation if the relocation occurs before a full expedited hearing (5337(Z)); burden of proof remains on the relocating party (5337(i)).
- The court ultimately vacated and remanded to reconsider all best interests factors under 5328(a) and 5337(h), including the impact of Sweden residence and the need for stability in education, family life, and community life.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court properly weighed relocation versus non-relocation best interests. | Mother argues court misapplied relocation statutes by disregarding Sweden life. | Father contends court correctly avoided preference favoring relocation under 5337(Z). | Relocation analysis requires full consideration of 5328(a) and 5337(h); no improper presumption. |
| Whether the court properly applied 5337(Z) in pre-hearing relocation. | Mother asserts no presumption against relocation should be inferred from prior relocation. | Court held 5337(Z) prohibits presumptive conclusions but must still analyze best interests. | Court erred by treating relocation evidence as a forbidden presumption; need remand for full factor analysis. |
| Whether the trial court properly considered best interests factors under 5328(a). | Mother contends court failed to weigh Sweden-related stability and parental duties. | Father argues factors support US residence with child safety and stability. | Remand required to assess 5328(a) factors including Sweden life and stability. |
| Whether the move’s effects on J.M.’s language and development were properly weighed. | Mother argues evidence about J.M.’s English, emotional development should support relocation. | Court did not abuse discretion in considering language and developmental factors. | Not dispositive; remand to reconsider credibility and weighting of evidence. |
Key Cases Cited
- In re Adoption of J. A. S., 939 A.2d 403 (Pa. Super. 2007) (standard of review for custody and best interests under Act)
- E.D. v. M.P., 33 A.3d 73 (Pa. Super. 2011) (analysis of 5328(a) factors; relocation considerations)
- Wilson v. Transport Ins. Co., 889 A.2d 563 (Pa. Super. 2005) (statutory interpretation and standard of review for law questions)