Durning v. Balent/Kurdilla
19 A.3d 1125
| Pa. Super. Ct. | 2011Background
- Child born Sept. 2005; lived with Mother from birth until Jan. 2010.
- May 19, 2008 custody order: joint legal custody; Mother primary physical custody and relocation to Alaska allowed; Father partial summer custody.
- Mother became ill Jan. 2010; Maternal Grandmother moved Child to Pennsylvania with Medical Power of Attorney.
- March 12, 2010 Father’s parents were temporarily granted partial custody; Father kept Child beyond weekend plan.
- March 18, 2010 Father petitioned to modify seeking primary physical custody; Mother returned to PA to resume custody but was refused by Father.
- May 3, 2010 interim order: joint legal custody, Father primary physical custody, partial schedule for Mother; Oct.–Nov. 2010 hearings led to Oct. 21, 2010 final order granting joint legal custody and shared physical custody; Mother appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether shared custody was in Child’s best interests given school age and long distance | Balent/Kurdilla: shared custody impractical; geographic distance undermines continuity | Durning: joint custody adequate and in child’s best interests | Abused discretion; not in child’s best interests; vacate for primary custody to Mother and relocation |
| Whether Mother should have primary custody | Balent/Kurdilla: history as primary caregiver supports primary custody | Durning: relocation and equal custody appropriate | Abused discretion; Mother entitled to primary physical custody due to long-time caregiving and disruption risk |
| Whether Gruber factors supported relocation to North Carolina | Move supported by spouse’s reassignment; improves family stability | Court should weigh Gruber factors against relocation | Abused discretion; relocation to North Carolina appropriate and in child’s best interests |
Key Cases Cited
- A.D. v. M.A.B., 989 A.2d 32 (Pa. Super. 2010) (best-interests framework for custody decisions)
- Collins v. Collins, 897 A.2d 466 (Pa. Super. 2006) (positive consideration to the primary caregiver)
- Wiseman v. Wall, 718 A.2d 844 (Pa. Super. 1998) (custody decisions defer to established caregiving patterns)
- Johns v. Cioci, 865 A.2d 931 (Pa. Super. 2004) (reluctance to disturb satisfactory custody arrangements)
- Billhime v. Billhime, 869 A.2d 1031 (Pa. Super. 2005) (consider factors contributing to well-being in relocation)
- Gruber v. Gruber, 400 Pa. Super. 174, 583 A.2d 434 (Pa. Super. 1990) (Gruber factors for relocation analysis)
- J.P. v. S.P., 991 A.2d 904 (Pa. Super. 2010) (Gruber-related guidance on relocation analysis)