IS YOUR EX’S NEW FIANCE’S INCOME A DECIDING FACTOR IN A RELOCATION CASE?

IS YOUR EX’S NEW FIANCE’S INCOME A DECIDING FACTOR IN A RELOCATION CASE?

There are several factors a court must consider in deciding whether to permit a party to relocate with the child.  A recent non-precedential Superior Court case, Manning v. Eledge, J-A01049-22, an appeal from The Court of Common Pleas of Perry County, considered whether the calculation of a Mother’s fiancé’s income resulted in an error by the trial court in granting Mother’s petition to relocate.  

The parties are the biological parents of a child born in 2013.  The parties lived together for about a year after the child was born and before their split.  In 2015, there was an award of custody, granting Mother primary physical custody of the child, and Father, partial custody with some supervised and unsupervised custodial time.  After the parents’ split, the child resided with Mother and Mother’s fiancé, and fiancé’s infant son who was born in 2020.  At the time of the relocation hearing, Mother was also pregnant with a second child from her fiancé.  

On June 16, 2021, Mother submitted a notice of proposed relocation to South Carolina.  Mother provided the following explanation:

“Mother and [ fiancé ] have been offered an opportunity to purchase maternal grandparents’ home in Little River, South Carolina.  Said home will be larger for the growing family, in substantially better condition, and significantly cheaper than their current residence.  Fiancé has secured multiple job offers in Little River, which will result in higher, more steady income than he earns at his current seasonal job.”

Father filed a counter-affidavit objecting to relocation or the modification of the custody order.  A hearing was held on August 13, 2021.  The court also conducted an interview with the child and the guardian ad litem (the GAL had been appointed upon the petition of Mother in February of 2020).

The court granted Mother’s request to relocate with the child.  It modified the custody order and provided Father with partial physical custody one weekend each month, from Friday evening until Sunday at noon.  Father would also have six (6) weeks during the summer and certain holidays.  Mother and fiancé also were willing to escort the child from South Carolina to Pennsylvania on a monthly basis.  Father filed a timely notice of appeal. 

Father’s issues for review are as follows:

1. Whether the trial court abused its discretion and/or committed an error of law in considering all relevant factors of 23 Pa.C.S. Section 5337(h) when it entered an order of court which allowed the minor child to relocate to another state.

2. Whether the trial court abused its discretion and/or committed an error of law in improperly calculating the financial benefit to the relocating party and subsequently relying heavily on the financial factor.

3. Whether [Mother] presented evidence sufficient to establish that the relocation was in the best interest of the minor child.

Is negative impact the correct test?  Father asserted that the court erroneously changed the language of the Section 5337(2) which requires the court to consider the age, developmental stage, and needs of the child, as well as the likely impact relocation will have on the child’s development.  Father states that the court focused on whether the relocation “will not negatively impact” the child.  

Fiancé’s income the determining factor?  Father also asserted that the court erred in its evaluation of Section 5337(h)(6), which requires the court to consider whether the relocation will enhance the general quality of life for the party seeking relocation.  Father argues that his calculation of fiancé’s income differed from the court’s calculation and that fiancé’s income would not increase thereby failing to meet the requirement of demonstrating an improvement in the general quality of life of the party relocating.  

Relocation is defined as a “change in residence of the child which significantly impairs the ability of a non-relocating party to exercise their custodial rights.” 23 PaC.S.A. Section 5322(a). There are 10 factors a court must consider when determining relocation:

1. The nature, quality, extent of involvement and duration of the child’s relationship with the party proposing to relocate and with the non-relocating party, siblings and other significant persons in the child’s life.

2. The age, developmental stage, needs of the child and the likely impact the relocation will have on the child’s physical, educational and emotional development, taking into consideration any special needs of the child.

3. The feasibility of preserving the relationship between the non-relocating party and the child through suitable custody arrangements, considering the logistics and financial circumstances of the parties.

4. The child’s preference, taking into consideration the age and maturity of the child.

5. Whether there is an established pattern of conduct of either party to promote or thwart the relationship of the child and the other party.

6. Whether the relocation will enhance the general quality of life for the party seeking the relocation, including but not limited to financial or emotional benefit or educational opportunity.

7. Whether the relocation will enhance the general quality of life for the child, including, but not limited to, financial or emotional benefit or educational opportunity.

8. The reasons and motivation of each party for seeking or opposing the relocation.

9. The present and past abuse committed by a party or member of the party’s household and whether there is a continued risk of harm to the child or an abused party.

10. Any other factor affecting the best interest of child.

The court determined found that the only special needs the child might have would be that she might be deemed gifted and would need some extra support and education.  It did not believe that was necessary at that time, but might be in the future.  The court also found the child to be in a very good developmental stage and that the relocation would “not negatively impact her educationally, emotionally, or physically.”  Father’s argue that the focus on whether there would a negative impact changed the language of the second relocation factor.  However, the  appellate court found that the trial court adequately considered Factor 2 and did not rely upon whether there was a negative impact.  

With regard to the fiancé’s job offers, the trial court considered his current income and the income for that would be earned from one of the job offers in South Carolina.  Mother, was not employed at the time of the hearing and her fiancé worked as a landscaper.  Their current residence was a two bedroom, one bathroom home in the middle of nowhere.  The new home would be near the beach, was four bedrooms and three bathrooms.  The family had saved money for the down payment and they were pre-approved for a mortgage on the property.  She also testified that they paid rent in PA at $975 a month and that the mortgage in South Carolina would be roughly $600 a month.  Fiancé’s new job would provide $40 an hour working 9-5 Monday through Friday.  His current job paid him $25 an hour working Monday through Saturday, sun up to sun down.  The court states that the fiancé’s income would be roughly $80K in South Carolina and $62K in Pennsylvania.   The court used a 50-hour week to determine the income for each job offer. The new job would also offer full benefits.  

Father argued that the court should not have based the income analysis on a 50-hour week for both jobs.  The appellate court dismisses father’s “hyper-technical analysis” of the facts of record.  The new job offered a higher hourly wage, fiancé would be able to work fewer hours, and provide full benefits.  The court found that ultimately, there was not enough evidence to show that the trial court abused is discretion in finding that the relocation would enhance the overall general quality of of life for Mother and the child. 

While Father does not argue in this case that the court erred in focusing on the fiancé’s income changes, it is important to note that the opinion suggests significant and substantial ties.  The opinion notes the facts that the parties are engaged and that Mother, fiancé, and the child had lived together since Mother and Father separated.  It also indicates that the couple is bound by a child they already have another that was on the way at the time of the hearing.  Mother was not employed and relied on the income of the fiancé and that would likely continue upon their move to South Carolina. The couple would also be purchasing her family home.  These facts suggest that court may have considered how strong the ties are between Mother and fiancé and that the likelihood of a separation of Mother and fiancé, unlikely.  

What Must Go Into a Notice to Relocate?

A parent who wants to relocate shall notify each person who has custody rights to the child by certified mail, return receipt requested.  No relocation is to occur without the consent of all parties or unless a court approves it.  Section 5337(c) requires that the notice contain the following: 

1. The address of the intended new residence.
2.  The mailing address, if not the same as the address of the intended new residence.
3. Names and ages of the individuals in the new residence, including individuals who intend to live in the new residence.
4.  The home telephone number of the intended new residence, if available.
5. The name of the new school district and school.
6. The date of the proposed relocation.
7. The reasons for the proposed relocation.
8. A proposal for a revised custody schedule.
9. Any other information which the party proposing the relocation deems appropriate.
10. A counter-affidavit as provided under subsection (d)(1) which can be used to object to the proposed relocation and the modification of a custody order.
11.  A warning to the non-relocating party that if the non-relocating party does not file with the court an objection to the proposed relocation within 30 days after receipt of the notice, that party shall be foreclosed from objecting to the relocation.

If a party does not know all of the information required above at the time of sending the notice, they must promptly inform every person who received noticed.  See PA Section 5337(c)(4).  

Notice is to be given no later than the 60th day before the date of the proposed move or the 10th day after the date that the party proposing to move knows of the relocation, if that person could not have known about the the relocation in time to comply and it is not reasonable to delay the relocation.  The other party will have 30 days to object to the relocation.  

What happens to a custody case if the other party has been charged with a crime?

A trial court must consider each party’s (and their household’s) criminal history.  Criminal convictions are often the focus of this review. However, 23 PA C.S. Section 5330 provides that if a party has pending criminal charges, the court must consider whether that party poses a risk of physical, emotional, or psychological harm to the child.  There are certain crimes, often referred to as “enumerated offenses” because they are specifically enumerated in the statute, that the court will review to determine whether a party poses such a risk.  These offenses, listed fully in Section 5239, include homicide, sexual assault, endangering the welfare of a child, driving under the influence, and more. See the full list of enumerated offenses here.

If a party has been charged with an enumerated offense under Section 5329, the other party may seek a temporary custody order or a modification of an existing order.  This hearing is to be held “expeditiously.” The court must consider whether the charged party poses a risk of physical, emotional, or psychological harm to the child as stated above. The court must consider any proof produced by the parties about the existence of criminal charges or abuse.

Support of Adult Children

Is a parent responsible for the support of their adult children?  Generally, parents are responsible for the support of a child until the child reaches the age of majority (18) or they graduate from high school, whichever event occurs later.  The right to support may actually exist beyond majority where the child is physical or mentally challenged or unable to support themselves. 23 PA.C.S. Section 4321(3). 

The court will look to determine whether the child is able (physically and mentally) to engage in profitable employment and whether that employment is available to that child at a supporting wage.  The burden is on the child to prove that these impairments exist and that they are unable to support themselves.  Often, it is the custodial parent that undertakes this burden.  The burden may be met by providing medical evidence supporting the diagnosis and limitations and/or with reports from vocational rehabilitation services to describe the impact of the child’s mental or physical impairments on his ability to support themselves. 

What is considered income for child support purposes?

What is considered income for child support purposes?

The first step in determining a support obligation is determining the parties' net income.  The court will take monthly gross income and then deduct certain expenses to arrive at each parties’ monthly net income.  The court will also consider other factors discussed below before determining the percentage of each parties’ support obligation.

What is considered income?  The court uses a six-month average of all of the party’s income.  Income includes, but is not limited to:

1. wages, salaries, bonuses, fees and commissions;
2. net income from business or dealings in property;
3. interest, rents, royalties, and dividends;
4. pensions and all forms of retirement;
5. income from an interest in an estate or trust;
6. Social Security disability benefits, Social Security retirement benefits, temporary and permanent disability benefits, workers’ compensation and unemployment compensation;
7. alimony (in some circumstances); and
8. other entitlements to money or lump sum awards, without regard to source, including lottery winnings, income tax refunds, insurance compensation or settlements; awards and verdicts; and any form of payment due to and collectible by an individual regardless of source.

There are certain exceptions or qualifications to be taken into consideration with the above list.  Here are a few:

1. Seasonal Employment. For example, if one person’s job is seasonal, the court will use the year average and not the six month average.  In this situation, it is important to show a year’s worth of earnings to make sure that the gross income is not artificially low or high.  
2. Social Security Disability benefits.  There are two types of Social Security disability benefits: Supplemental Security Income (SSI) andSocial Security Disability Insurance benefits (SSDI).  Supplemental Security Income (and public assistance benefits, for that matter) are not considered income.    
3. Imputed Income.  If an individual voluntary quits their job or refuses to work, the decision maker may compute an earning capacity to that individual.

What is deducted from income?

1. federal, state, and local income taxes;
2. unemployment compensation taxes and local services taxes;
3. Social Security, Medicare and Self Employment taxes (FICA) and non-voluntary retirement payments;
4. mandatory union dues; and
5. alimony paid to the other party.

Once the court has arrived at the parties’ net monthly income as determined in 231 PA 1910.16-2, the court may also allocate other expenses such as childcare, medical insurance premiums, and other unreimbursed medical expenses between the parties.  The court will consider other factors including the amount of custody shared between the parties and each party’s other support obligations to dependent children.  The support guidelines will then be applied to determine each parties’ obligation.  

As noted above, there are several exceptions and qualifications to many of the income resources and deduction rules. Contact us today for a free consultation to discuss the unique facts of your case.  

Resources: PA 1910.16-2