Thursday, January 03, 2013
The Pennsylvania Superior Court, on October 5, 2012, allowed a mother to travel overseas with the her young daughter over the father’s objection. M.P. v. M.P., 2012 WL 4748210 (2012). In July 2011, Wife filed a custody petition seeking permission of the court to travel to Ecuador with her three year old daughter to visit extended family for three weeks.
Wife had obtained primary custody of the child following a July 2009 Protection from Abuse proceeding. Although the court awarded Husband supervised visitation for two hours per week, he did not take advantage of his visitation rights for the next year and a half.
At a November 2011 hearing, Wife testified about her desire to travel with her daughter to Ecuador to visit her parents and extended family. She told the court that it would be difficult for her parents to obtain visas and her mother’s health issues made it difficult for her to travel to the United States. Wife also testified that she would be at a home with a telephone and near medical and hospital facilities. Husband testified that he opposed Wife’s trip, even though he had never been to Ecuador or met Wife’s family. Husband testified that Ecuador is a third-world country and in the event of a medical issue, his daughter’s health insurance would not be accepted. Furthermore, Husband testified that if some type of harm befell Wife, working to return his daughter back to the United States would involve financial and legal complications.
The trial court sided with Husband and denied Wife’s petition to travel overseas. Wife appealed and noted that Husband, by his choice, had not seen the child for a year and a half. Wife also pointed out that Husband had previously agreed that Wife would have sole legal custody pertaining to medical, educational, and religious decisions affecting their daughter. Wife further argued that the trial court’s decision amounted to an award, in Husband’s favor, of shared legal custody.
In Pennsylvania, “legal custody” is defined as “the right to make major decisions on behalf of the child, including, but not limited to, medical, religious and educational decisions,” and “sole legal custody” is “the right of one individual to exclusive legal custody of the child.” 23 Pa.C.S. §5322(a). When one parent has sole legal custody, that parent has the final authority to make decisions, even if the other parent disagrees with that decision.
Here, by not allowing Wife exclusive control over the decision to take the daughter to Ecuador, the trial court effectively gave Husband shared legal custody. The Superior Court concluded that the trial court was wrong, because Wife had sole legal custody of the child; therefore, Husband was not allowed to prevent her from traveling with the child. If the parents in this case had shared legal custody and Husband expressed the same reservation regarding overseas travel, then it would have been more likely that Husband could have prevailed.
If you have questions about your custody arrangement and whether or not you are the sole decision maker for your child, you should contact an attorney.
Written by Allyson Lutley, law clerk at the Law Offices of Linda A. Kerns, LLC. Edited by Elizabeth A. Bokermann, Esquire, associate attorney.