Tuesday, June 21, 2011

Child custody when the parents live in different states.

Child custody disputes are often a companion to divorce. Although a divorce in and of itself is a stressful and tiring situation, child custody often can be even more overwhelming. Many factors go into a court’s decision when dealing with matters of custody. The best interests of the child is the primary factor that courts will consider. As part of that consideration, the courts will look to the needs and abilities of each parent. Furthermore, the schedules of the parents should be a consideration when deciding child custody, but the location of each parent should also be considered. 

Recently, in Durning v. Kurdilla, the Superior Court of Pennsylvania discussed the issue of child custody when the parents live in different states. The Court held that although the parents lived in different states, the mother should have primary physical custody and should be able to relocate with the child to North Carolina. 

In this case, the child lived with mother for the majority of the child’s life. Under the child custody agreement, mother and father shared legal custody; however, mother had primary physical custody. Mother also received the right to relocate to Alaska with the child. Because mother lived in Alaska and father lived in Pennsylvania, father was granted partial physical custody for the summer months. 

While in Alaska, mother became ill and asked father to watch the child while she underwent treatment. Father was unable to go to Alaska to care for the child due to economic concerns associated with the cost of travel. Accordingly, the child’s maternal grandmother took the child back to Pennsylvania, and took care of the child while mother was sick. During the child’s stay in Pennsylvania, the maternal grandmother allowed the paternal grandparents to exercise overnight partial custody. Rather than return the child to maternal grandmother after an overnight visit, father decided to keep the child with him. Father then filed a Petition to Modify Custody in order to attempt to obtain primary physical custody of the child. When mother recovered, she traveled to Pennsylvania to pick up the child. Once there, father refused to allow mother to resume custody of the child. 

The trial court entered a final custody order awarding the parents joint legal custody of the child, while awarding shared physical custody of the child on an alternate week schedule. However, by awarding this custody agreement, the trial court overlooked the fact that mother was not a Pennsylvania resident. Rather, mother was still a resident of Alaska, and soon to be a resident of North Carolina. Therefore, the trial court effectively ordered that the child continuously travel. 

On review, the Superior Court of Pennsylvania vacated the holding of the trial court. The Superior Court performed a best interest of the child analysis to assess the custody arrangement. Under this analysis, and in conjunction with other factors, the Court found that it was in the child’s best interest to be with mother. Specifically, the Court held that shared physical custody of a young child by parents who do not live near each other does not create an environment of stability at home or at school. Furthermore, the Court held that custody agreements should only be altered when they are no longer in the best interest of the child. Although the Court looked at several factors, it placed significant emphasis on maintaining the home life that the child knew.

The Court also reviewed mother’s anticipated move to North Carolina from Alaska because of mother’s husband’s military base change. Applying the Gruber factors, the Court held that mother’s move was not on a whim, nor were her motives questionable. (Note: Recently, Pennsylvania overturned Gruber by specifically outlining custody relocation standards in the new custody statute.) Moreover, mother’s move to North Carolina from Alaska made it easier for father to see child if he chose to exercise his visitation options. Therefore, the Court saw no problem with the relocation of mother and child to North Carolina.

Ultimately, there are many considerations for the courts when deciding custody and relocation cases. If you think that a change in custody would be best for your child, or you have a custody order in place and are considering moving, then you should contact an attorney to discuss your best course of action. 

Written by Liz Smith, law clerk at Law Offices of Linda A. Kerns, LLC.  Edited by Elizabeth A. Bokermann, Esquire, associate at Law Offices of Linda A. Kerns, LLC.


Bella Park said...

I don't know what to say. This post is amazing. Thanks for sharing such useful information.

Parent Divorce

Family Attorneys said...

Yes, custody of child become a serious issue when parents live in different states.In these such condition grandparents have legal rights to live with their grandchildren.
Grand Parents Rights