E.D. v. M.P.
33 A.3d 73
| Pa. Super. Ct. | 2011Background
- Child born Oct. 2007; Father had primary physical custody since 2009 order; Mother had partial custody/visitation.
- January 25, 2011: Father sought relocation to Barton, NY to live with Kenyon; court allowed immediate relocation pending hearing.
- May 2, 2011 evidentiary hearing; May 6, 2011 order granted relocation and revised custody schedule reducing Mother’s weekly time.
- Court held relocation deemed in Child’s best interest due to Father’s increased pay and relationship with Kenyon; suggested enhanced contact with Mother.
- Mother appealed, raising six issues; Pennsylvania’s new Child Custody Act (2010) governs the appeal; issues include procedural compliance, relocation factors, custody modification, and consideration of 5328 factors.
- Court vacated trial court’s order and remanded for further proceedings consistent with decision; jurisdiction relinquished.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Notice and procedure under 5337(c) | Mother argues notice and procedure were not properly followed | Father contends procedural issues are waived | Waived due to lack of preservation in trial court |
| Relocation factors under 5337(h) | Court failed to address all relocation factors with record support | Court’s conclusions insufficiently explained but should rely on factors | Remanded for explicit consideration and explanation of all factors |
| Modification of custody schedule | New schedule better preserves Mother-child relationship | Schedule changes supported by relocation context | Remanded for best interests analysis under 5328(a) and detailed reasoning |
| Investigation of Kenyon (new household member) | Court failed to assess Kenyon’s background as required | Kenyon’s background not adequately proven material to relocation | Remanded to assess compliance with 5329(a) and related safeguards |
| Counterclaim for custody and §5328(a) factors | Court did not conduct full best interests analysis | Modification framed under 5337(h) factors | Remanded to perform thorough 5328(a) analysis on custody counterclaim and weight of evidence. |
Key Cases Cited
- Gruber v. Gruber, 400 Pa. Super. 174, 583 A.2d 434 (Pa. Super. 1990) (three-factor relocation standard replaced by 5337(h) factors)
- A.D. v. M.A.B., 989 A.2d 32 (Pa. Super. 2010) (explains standard of appellate review in custody matters)
- King v. King, 889 A.2d 630 (Pa. Super. 2005) (reaffirming deference to trial court weight/credibility findings)
- Plowman v. Plowman, 409 Pa. Super. 143, 597 A.2d 701 (Pa. Super. 1991) (requires hearing before relocation absent exigent circumstances)