In the last year-and-a-half since the new custody statute became effective, a number of cases have been decided by the Pennsylvania Superior Court analyzing the application of the new act. It is clear, based on the published opinions, that all of the factors pertaining to the trial court making a custody decision as well as the factors pertaining to the court making a child relocation decision must be analyzed by the trial court. The recent case of B.K.M. v. J.A.M., ___ A.3d ___, 2012 PA Super 156 (Pa. Super 2012), is the third case to specifically analyze child relocation. According to the opinion, a trial court cannot ignore the facts and circumstances that exist after a party relocates with a child prior to the full evidentiary hearing when making a decision.

Generally, the facts in the opinion are as follows: J.A.M. (mother) and B.K.M. (father) married in June 2002 in Sweden where the mother was a citizen. Shortly after the parties married, the mother was diagnosed with ulcerative colitis. J.A.M.’s colitis worsened and she required numerous surgeries. Prior to her first surgery, three children were born of the marriage: A.M. (in December 2003), L.M. (in March 2005) and J.M. (in March 2008). In total, the mother underwent four surgeries. The first three surgeries occurred in the United States. The parties agreed that the fourth surgery would occur in Sweden.

According to the opinion, the parties anticipated that the surgery would take place in the summer of 2010. J.A.M. and B.K.M. traveled to Sweden with their children in April 2010. B.K.M. informed J.A.M. that he wanted to end the marriage while they were in Sweden. Thereafter, B.K.M. returned to the United States and the mother and children remained in Sweden. J.A.M.’s scheduled surgery was then pushed back to September 2010. According to the opinion: “Upon learning of the delay, the father agreed that the children could remain in Sweden during that period.” B.K.M. filed for divorce in October 2010. J.A.M. briefly returned to the United States in December 2010, without the children, with the hope that B.K.M. “might change his mind regarding the divorce.” However, J.A.M. learned during her visit to the United States that B.K.M. had a paramour and that the marriage was irretrievably broken.

In March 2011, J.A.M. underwent her fourth and final surgery. At that time, the father requested that he bring the children home from Sweden to take them on a trip to Disney World in Florida, but J.A.M. refused. Shortly thereafter, B.K.M. filed a petition for an expedited custody hearing in Montgomery County, Pa. A conciliation conference was held in June 2011 with the mother participating by telephone. Thereafter, the children returned to the United States for a four-week visit with B.K.M. in Pennsylvania. “During the children’s visit, the father filed an emergency petition seeking to keep the children in the United States, which the trial court denied.” In October 2011, a two-day custody trial was held. In January, the trial court entered an order granting shared legal custody of the children to B.K.M. and J.A.M. and also granted shared physical custody to the parties in the event J.A.M. returned to Montgomery County, but granted the father primary physical custody in the event that J.A.M. remained in Sweden. In entering its decision, the trial court also denied J.A.M.’s petition to relocate.

J.A.M. filed a timely appeal to the trial court’s order. J.A.M. raised five issues on appeal. Of the five issues raised on appeal, the following are addressed in this article:

“II. Did the trial court err by failing to consider and/or apply certain factors required for consideration when conducting a best interest of the child analysis[?]

III. Did the trial court err by failing to properly analyze the factors permitting relocation[?]

IV. Did the trial court err by utilizing the January 2011 Custody Act, and particularly the ‘new’ relocation standards in deciding this matter?”

Because the evidentiary hearing occurred after the effective date of the new Child Custody Act, the Superior Court held that the trial court properly applied the new act to the instant case. According to the opinion, the second and third issues are dispositive of the remainder of the appeal and were addressed together. The crux of the argument focuses on the trial court’s interpretation of Section 5337(l). Section 5337(l) provides: “Effect of relocation prior to hearing. — If a party relocates with the child prior to a full expedited hearing, the court shall not confer any presumption in favor of the relocation.” On appeal, J.A.M. argued that the trial court disregarded evidence concerning the children’s lives in Sweden since April 2010 “pursuant to its interpretation of Section 5337(l).” According to the opinion, “she argues that the disregarding of evidence was the result of a misinterpretation of Section 5337(l), and that an inadequate analysis of both Sections 5328(a) and 5337(h) followed from court’s erroneous interpretation of Subsection (l).”

The issue of the interpretation and application of Section 5337(l) is an issue of first impression before the Superior Court. In its opinion, the Superior Court highlighted the fact that the trial court stated in its opinion “that it disregarded any evidence arising out of the period after the mother and the children moved to Sweden in April 2010, and that it determined it was bound to do so by its interpretation of Section 5337(l).” The Superior Court also quoted portions of the trial court’s opinion regarding the issue. The trial court stated in its opinion, inter alia: “Once again, this [c]ourt is not permitted to confer any presumption in favor of the mother to relocate with the children prior to a full expedited hearing. … The mother attempted … through her pretrial statement, at the hearing, and now through her concise statement, to argue that because the children have been in Sweden their stability warrants their continued presence there[,] this [c]ourt believes it was correct in disregarding all such comments based on the fact that the mother had already relocated.”

Section 5337(l) was meant to protect against a presumption arising that relocation is proper in circumstances where the relocation has occurred prior to the full evidentiary hearing. Pursuant to the relocation section under the new Custody Act, the party seeking to relocate bears the burden of proof. If Section 5337(l) did not exist, the allocation of burdens set out in Section 5337(i), which provides that the relocating parent bears the burden, would not be preserved. However, the Superior Court held that the trial court created a presumption against relocation by disregarding any evidence pertaining to the period of time after the children had relocated prior to the hearing.

Under the case law that has been decided since the enactment of the new custody statute, all factors under Sections 5328(a) and 5337(h) must be considered in determining the best interest of the children when making a custody determination. At the trial, J.A.M. “presented evidence regarding her role as a primary caretaker from April 2010 onward, as well as evidence regarding the emotional, educational, and social roots that the children established in Sweden since that time.” The Superior Court, in its opinion, stated: “The [trial] court omitted consideration of the parental duties performed in Sweden, of any need for stability and continuity established for the children during their time in Sweden, and of the overall best interest of the children, inasmuch as those interests might involve maintaining the status quo established by their life in Sweden over the past two years, which for the most part occurred with the father’s agreement.” Because of this, the Superior Court held that the trial court failed to analyze the necessary factors provided under Sections 5328(a) and 5337(h). The Superior Court remanded the case to the trial court directing that it “shall fully consider the best interest of the children pursuant to Sections 5328(a) and 5337(h), which shall include a weighing of the evidence of the children’s lives in Sweden, and the need for stability and continuity established by the children’s education, family life and community life in Sweden.”

This opinion is very important for family law practitioners and the bench. The new custody statute creates unchartered territory for practitioners and the bench. Prior to the enactment of the new Custody Act, under Plowman v. Plowman, 597 A.2d 701 (Pa. Super. 1991), courts were to consider circumstances that occurred from the time the children relocated prior to the full evidentiary hearing. However, that case was decided long before the enactment of the new custody statute. If a party relocates prior to the full evidentiary hearing, it is understandable that there is a fear that the status quo resulting thereafter would create a presumption that the relocation should be confirmed. However, the best interest of the child is the analysis in all custody cases that consists of analyzing all factors, as the Superior Court has consistently ruled. To excise any facts or evidence would preclude a full analysis of all factors in determining the best interest of the child. Therefore, it is clear by the ruling in this case that all facts, whether they occur prior to or after a relocation that occurs prior to a hearing, must be analyzed by the trial court in making its custody determination. •

Michael E. Bertin is a partner at Obermayer Rebmann Maxwell & Hippel. He is co-author of the book Pennsylvania Child Custody Law, Practice and Procedure. Bertin is chair-elect of the family law section of the Philadelphia Bar Association, co-chairman of its custody committee, and a past member of council and the executive committee of the family law section of the Pennsylvania Bar Association.