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The recent Superior Court case of Masser v. Miller is an interesting case because it covers a number of issues, such as the denial of an intrastate relocation petition, the weight to be given to custody evaluations and the court’s power to modify a custody schedule sua sponte. In Pennsylvania, since the seminal case of Gruber v. Gruber, family law practitioners often wonder whether there is a “trend” in child custody relocation cases of courts applying the “ Gruber test” as the genesis for either granting or denying petitions for child relocation or whether the courts are focusing primarily on the child’s best interests. The Superior Court in Gruber set forth three factors to be applied when a parent seeks to relocate with a child: The potential advantages of the proposed move, economic or otherwise, and the likelihood that the move would improve substantially the quality of life for the custodial parent and the children and is not the result of a momentary whim on the part of the custodial parent; The integrity of the motives of both the custodial and noncustodial parent in either seeking the move or seeking to prevent it; and The availability of realistic, substitute visitation arrangements that will foster adequately an ongoing relationship between the child and the noncustodial parent. Since Gruber, there has been a noticeable evolution toward applying the Gruber factors within the best-interest-of-the-child analysis. It is satisfying to know that the courts repeatedly state that “the best interest of the child” is the primary concern in relocation actions. Because a child relocation action is a “custody action” it is logical that the best interest of the child analysis is the primary factor to be applied by the court. Interestingly, when a court is faced with an intrastate relocation action, the rules of the game change slightly. In Masser, the court reiterated that the Gruber analysis is optional when an intrastate relocation petition is before the court. Christine Miller, the mother of Kaytlyn Miller in the Masser case, petitioned the court to relocate from Schuylkill County across county lines to Dauphin County (approximately 45 minutes away). The trial court denied Miller’s petition to relocate and the court affirmed the trial court’s decision. Miller and Derrick Masser (the father) were never married. On April 27, 1995, the parties entered into a stipulation providing that Miller had primary physical custody of Kaytlyn and Masser had partial physical custody. On July 29, 2004, Miller filed a petition to modify custody and requested permission from the court to relocate from Schuylkill County to Dauphin County. On Sept. 29, 2004, the trial court ordered a home and custody evaluation and ordered further conciliation conferences. “Prior to the trial, [Miller] who had and has a home in Hegins Township, Schuylkill County, purchased another home in Hummelstown, Dauphin County, where she desires to move Kaytlyn. [Miller] is employed as a registered nurse for Hershey Medical Center. She stays at home in Hummelstown on occasion, and at other times, she stays in her Hegins home. Apparently, in anticipation of moving Kaytlyn’s primary residence, [Miller] transferred much of Kaytlyn’s personal property to Hummelstown. [Miller]‘s mother and her husband also stay at [Miller]‘s Hegins home, having moved there rather recently, also, apparently in anticipation of [Miller]‘s move of Kaytlyn.” Miller worked on a part-time basis. Masser is employed by Thermal Dynamics in Schuylkill Haven as a welder, where he generally works five days per week, Monday through Friday. Though Miller has primarily cared for Kaytlyn, Masser has exercised additional periods of custody outside of the current custody schedule. “Kaytlyn has become close emotionally to Masser’s wife and her family, the latter of which also provides care for Kaytlyn. Kaytlyn has a particularly close relationship with brother, Devon.” A custody evaluation was conducted and the evaluator “opined that [Miller] should be allowed to move Kaytlyn from Schuylkill County. He concluded that the move would not negatively impact the relationship of Kaytlyn and [Masser], and that there were, in effect, two families – [Miller's] and [Masser's] with Kaytlyn being more a part of [Miller's] family, rather than [Masser's] family.” After the hearing, the trial court denied Miller’s request to relocate and modified the existing custody order increasing Masser’s partial physical custody. Miller appealed and raised the following issues: Did the trial court err in abusing its discretion by denying Miller’s request that she be permitted to relocate her daughter across the county line, and did the trial court properly apply a Gruber analysis in doing so? Did the trial court err and abuse the discretion by totally rejecting the recommendation of the court appointed psychologist in formulating the court’s decision that Miller should not be permitted to relocate across the county line to Dauphin County, by placing a significant emphasis on the child’s preference in denying Miller’s request that she be permitted to relocate? and Did the trial court err in abusing its discretion by not only denying Miller’s request that she be permitted to relocate across county lines, but significantly modifying an existing custody order, and reducing the child’s amount of time with Miller, although father had not filed his own petition to modify, and was it in the best interest of the child to significantly reduce the amount of time she will be spending with her mother in response to [mother]‘s petition to relocate? The Superior Court stated: “Though the Gruber test was originally applied to out-of-state relocations, we have held that the trial court may, in its discretion, apply the Gruber analysis to intrastate moves.” In citing the Superior Court case of B.K. v. J.K., the court stated: “The determination of whether Gruber is appropriate should lie within the discretion of the trial court while being mindful of geographic distance and whether that distance is significant enough to alter the relationship between the noncustodial parent and the children, as well as the relocation entails different educational, cultural and religious facilities, and whether or not the same trial court would retain jurisdiction over the children.” The court found that the trial court exercised its discretion and applied the Gruber test and performed a best interest of the child analysis before denying Miller’s request to relocate. In summarizing the trial court’s findings under the Gruber test, it stated: “[T]he evidence did not indicate that the move would improve substantially, or otherwise, the quality of life for [Miller] or Kaytlyn, nor, in light of the actual circumstances in this case, that realistic substitute custodial arrangements could be arranged to foster the type of relationship between father and Kaytlyn. Simply put, the basis for the move – the decrease in commute time to work for [Miller] by about 40 minutes, which allegedly would allow [Miller] to spend more time with Kaytlyn upon [Miller] changing her work schedule, was found not sufficient to justify the disruption in Kaytlyn’s life, nor the significant negative impact which would result in Father’s custodial rights, nor serve Kaytlyn’s interests.” The court, after reviewing the trial court’s opinion, and order, found that the trial court did not abuse its discretion in its application of Gruber and the best interest analysis in denying Miller’s request to relocate. In addressing Miller’s second issue on appeal, regarding the trial court’s decision not to follow the court appointed custody evaluator’s recommendation, the Superior Court stated: “So long as the trial court’s conclusions are founded in the record, the lower court is not obligated to accept the conclusions of the experts.” The Superior Court further stated: “The significance placed on the preference of the child who is at the center of a custody dispute is similarly within the discretion of the trial judge.” The final issue on appeal is interesting and important for practitioners to remember. This issue pertains to the trial court modifying the custody order increasing Masser’s partial physical custody, even though Masser did not petition the court to modify the custody order. The court held: “The state Supreme Court has recognized that ‘a custody judge may modify any existing custody order to a shared custody order sua sponte, or may decline to enter a custody order as agreed by the parents.’ . . . The custody order entered by this court was based upon all of the evidence received at trial, including the parties’ positions as to proposed custody schedules, the custody terms of the then-existing custody order, and the periods of custody actually being exercised by the parties – with the evidence establishing that father was exercising substantially more physical custody periods with Kaytlyn than provided in the [prior] court order.” Because Masser exercised additional custody time with Kaytlyn outside of the custody order, the new order that the trial court entered was not very different from what the parties were actually exercising. Therefore, the Superior Court found that the trial court did not abuse its discretion when it modified the current custody schedule in the best interest of the child. This author wishes to stress that a sua sponte custody modification such as that in the Masser case is not permissible procedurally when a contempt petition is before the court and a petition to modify custody is not pending before the court as well. The theory behind this reasoning is that the litigants will not be on notice and prepared to litigate modification issues at that time with solely a petition for contempt pending. However, in cases such as Masser, mother’s modification petition was before the court. Therefore, the parties were prepared for the order to be modified in some fashion. It is important for the family law practitioner to remember that whenever he or she is before the court on a custody-modification petition, the trial court may modify the order “upward or downward” because the court’s sole concern is the child’s best interest. It is to be noted that this is the second case in 2006 that came down from the Superior Court that denied an intrastate relocation petition. The other case was Speck v. Spadefore, where the mother in that case desired to move from York County to Butler County. Both Speck and Masser remind the practitioner that a proposed relocation within states lines is not a “slam dunk” – even when the expert is in favor of the move. MICHAEL E. BERTIN is an associate in thePhiladelphia law firm of Obermayer RebmannMaxwell & Hippel. Bertin is a member of council of the family law section of the Pennsylvania Bar Association and is co-chairman of the custody committee and a member of the executive committee of the family law section of the bar association.

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