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Judges face a difficult choice when custodial parent wants to move

Sunday, August 03, 2003

By Mackenzie Carpenter, Post-Gazette Staff Writer

She says: I want to move with the kids to Philadelphia for a major job opportunity with a national health care company.

Her ex-husband says: She can't move. I see my kids all the time.

A Pittsburgh judge says: She's already making a lot of money. Relocation request denied.

An appeals court judge says: Her move isn't just about money, it's an important career advancement. Relocation request granted.

Related article:
The struggle to quantify children's well-being


This 1998 Pennsylvania case illustrates a growing dilemma faced by judges in divorce court: When is the economic health of a mother and her child more important than the child's proximity to the father?

As more mothers enter the work force, such relocation cases have increased dramatically.

But in Pennsylvania, many trial court judges regularly deny requests to move even if the mother meets a state legal standard showing that the move will result in dramatically improved economic and social circumstances.

Many judges argue that the state's relocation standards are too permissive, placing too much emphasis on the mother's needs, without considering the child's bond with the father.

"I think the state's current relocation standards do need to be revisited," said Eugene Scanlon, the presiding judge of Allegheny County Common Pleas Court's family division. "A parent is being left behind, and life for those children and their relationship with that parent will never be the same. That's the harsh reality of it."

The state Senate is expected to take up legislation this fall that may make it harder for custodial parents to move away with their children.

In the late 1990s, about one-quarter of all children moved at least once before they turned 4, according to the latest census data. When people divorce, that's especially true; 75 percent of all custodial parents moved within four years of separation or divorce.

Female empowerment isn't always the reason. While many women cite career advancement in wishing to relocate with their children, others simply want to go "back home" for family support or have remarried and the new husband has a job offer elsewhere.

"I find custody relocation cases to be the most difficult to decide because there are so many competing interests and issues," Allegheny Common Pleas Court Judge Kathleen Mulligan said. "Frankly, most of the time, you've got two decent parents who love their children, and no matter what you do, someone is going to end up unhappy. Either the custodial parent isn't going to be allowed to move, or the noncustodial parent is going to be left behind."

Depending on the judge, the decision can go either way.

"The client calls up and says, 'I'm so excited, I'm getting married to a guy who has a wonderful job in Phoenix, and my husband is a real pain.' And I tell her, whoa, whoa, whoa, don't call the moving company yet," said Carol Mills-McCarthy, a Pittsburgh lawyer. "In this state, there is absolutely no way to predict how a judge will rule on a relocation case."

Relocation cases are fraught with gender politics, because, nationally, about 75 percent of all custodial parents are mothers. Over the past decade, relocation issues have increasingly pitted feminists against father's rights groups.

Three-part test questioned

For many years, courts routinely prohibited mothers from leaving the area because of concerns about disrupting the father's visitation rights. But in the 1980s, with the advent of the women's movement and increased female participation in the workplace, that began to change, and relocations were granted routinely, even cavalierly, said Maria Cognetti, a Harrisburg lawyer who helped draft the Senate bill.

Then, in 1990, a Pennsylvania Superior Court decision, Gruber vs. Gruber, set out a three-part test that judges must use in deciding whether a custodial parent is allowed to relocate, most importantly, whether the quality of her life will be dramatically improved, economically and otherwise.

"When relocation is likely to result in a substantially increased quality of life for a custodial parent," wrote the author of the Gruber decision, Superior Court Judge Phyllis Beck, "often the child's best interests will be indirectly but genuinely served."

Some lawyers say that even when that important condition is met, trial court judges are denying relocations.

"We've got judges dodging and weaving and avoiding the issue any way they can," said Joanne Ross Wilder, a prominent Pittsburgh divorce lawyer and author of a family law reference guide that tracks such cases. "It's almost tantamount to jury nullification."

There's a reason for this, said Judge Thomas James, a judge in Columbia and Montour counties. He and other judges simply don't buy social scientists' claims that a child's best interests are inextricably linked with the custodial parent's, and if that parent is happy, the child will benefit, too.

"The bottom line is what's in the best interest of the child, and that should be it, period," said James, who wrote a recent law review article urging that the Gruber test be revised to require consideration of the child's best interests separately from the custodial parent's. That usually means looking at the bond between father and child.

Cognetti, a Harrisburg lawyer who represents many fathers in relocation cases, disagrees with both Wilder and James. With more and more cases involving joint custody, judges have become more careful about freely allowing relocations, she said, and have already found a way to go beyond just looking at the custodial parent's needs and include the child's best interests as well. The Senate bill doesn't scrap Gruber, but merely codifies what is already going on in courtrooms.

"We are trying to present judges and lawyers with a clearer way to try these cases," Cognetti said.

The Senate bill would require courts to consider a range of issues, from the move's impact on the child's physical, educational and emotional development to the quality of involvement with each parent. While the court would be allowed to examine how a custodial parent's life would be improved by the move, it would be one factor among many.

Opponents of the bill, which was introduced two years ago, say that a "best interest" approach to deciding relocation will mean that fewer relocations will be granted. That's because such "best interest" hearings can be lengthy and expensive, involving court-appointed evaluators and expert witnesses. Sometimes, such litigation can go on for years, while job offers or marriage proposals wait, or, sometimes, expire.

Such protracted court hearings are never good for children, Wilder said.

"Any time you place the child at the center of a conflict, you're undermining the child's general well-being," Wilder said. "The goal of custody determinations is to decide them, and not keep deciding them, and keep on dragging people into court over and over again."

But with so much at stake, for the parents and the children, it makes sense for the court to give as much attention to relocation requests as possible, even if it means lengthy hearings over whether a custody agreement needs to be changed or modified, said Harry Gruener, a professor of family law at the University of Pittsburgh Law School.

"You can't decide highly complicated issues by some nice three-prong test. None of that is a substitute for actually digging into the issues involving the kid, and what the kid's needs are."

A test case in California

"These are hard cases," said Carol Bruch, a law professor at the University of California at Davis who has written extensively on relocation issues. "But we do allow divorce in this society. We do allow couples to separate, and for a judge to try to recreate a situation that doesn't exist anymore is impossible. No one says that any of these doctrines substitute for a happy, intact family, but very often judges must pick between the lesser of two evils."

Bruch and other feminists are closely watching a California case that may overturn that state's relocation law, and in turn, influence other state courts.

Unlike Pennsylvania, the custodial parent in California doesn't have to show why a move would be advantageous. Instead, the burden falls on the noncustodial parent, who must prove that the move would be so detrimental to the child that a change in custody is warranted.

But earlier this year, the California Supreme Court agreed to hear a case involving a mother who was repeatedly denied the chance to move with her children, first to attend law school, and later, to join her new husband in another state after he got a better job, even though the father had a tenuous relationship with the children, at best.

Bruch and other legal experts have filed briefs on behalf of the mother, arguing that the judges ignored the law, and urged the court to reaffirm its prior decision. Father's rights groups, on the other hand, argue that the law has resulted in judges virtually rubber-stamping every request to move.

"If a mother wants to move in California, she usually can," said Glenn Saks, a radio talk show host in California who has written and discussed relocation issues extensively. "The only people who can fight it are fathers with money, but most of these guys don't have a lot of money to begin with, are under extreme financial hardship because of their child support obligations, and they simply don't have the financial wherewithal to block it.

"To have a good relationship, you need to be in that child's life," Saks said. "You can't have the same loving bond with that child you see once a month or every three months."

Mackenzie Carpenter can be reached at or 412-263-1949.

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