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  A recent non-precedential Superior Court case, Manning v. Eledge, J-A01049-22, an appeal from The Court of Common Pleas of Perry County, considered whether the calculation of a Mother’s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.  

Parent Granted Relocation- Review of a Recent Relocation Case.

Mom Can Move

 In a recent order issued in the Court of Common Pleas of Monroe County in the case of Song v. Valderrama, Judge Stephen Higgins discussed the standards and factors that must be applied in a case where mother was looking to relocate with her 5-year-old child from Pennsylvania to Florida. In this case, the relocation was granted.   Both the relocation and the custody factors along with a review of the findings of each of the factors is provided below.

In a relocation case, the party wishing to relocate has the burden of proving that the relocation is in the best interest of the child.  In addition, “each party has the burden of establishing the integrity of that party’s motives in either seeking the relocation or seeking to prevent the relocation.” 

23 Pa.C.S.A. 5337(h) provides the 10 relocation factors that a court must consider in a relocation case:

1).The nature, quality, extent of involvement and duration of he child’s relationship with the party proposing to relocate and with the nonrelocating party, siblings and other significant persons in the child’s life.   The court weighed this factor slightly in favor of Mother.  The child has no siblings.  Mother has been the primary caregiver for the child since he was born. She proposed a schedule where Father could enjoy holidays and summer vacations, as well as unlimited time with him in Florida.  She also testified that she co-parents with Father very well.  Father raised concerns over Mother’s abuse of cocaine and that she would have less support in Florida.  According to the court, Father would not be in a position to enjoy primary physical custody of the child. 

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.  This factor was found to be neutral. 

3). The feasibility of preserving the relationship between the nonrelocating party and the child through suitable custody arrangements, considering the logistics and financial circumstances of the parties. This factor was weighted in favor of Father.  The relocation would be difficult.  Mother testified that Father saw the child only once in a six week period but hat Father has alternating weekends with the child.  The relocation would cause a financial hardship for Father and he would not be able to maintain the current custody agreement.  

4).The child’s preference, taking into consideration the age and maturity of the child.  The court did not interview the child and thus found that this factor did not favor either party. 

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.This factor did not favor either party because the court found that there was no evidence suggesting that either party has attempted to thwart the relationship of the child with either party. 

6).Whether the relocation will enhance the general quality of life for the party seeking the relocation, including, but no limited to, financial or emotional benefit for educational opportunity.  The factor was found in favor of mother in that it would generally enhance Mother’s financial opportunities and quality of life.  She testified to a financial benefit by obtaining a property management position in Orlando.  Her brother and his wife lived there and could assist in child care.  She also testified to other ties (a cousin and friend) who lived nearby including Father’s grandmother and step-father.  

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.  This factor was found to be in favor of Mother. She presented a letter from the doctor that indicates that he has to stay indoors in the winter due to acute asthma attacks. In Florida, he would be allowed to play outdoors. Mother found a school that would be a good fit for him. Although she did not offer any additional information, the court found that the child’s general quality fo life would improve.

8).  The reasons and motivation of each party for seeking or opposing the relocation.The court believed that Mother’s reasons for seeking to relocate where genuine and that Father’s reasons for opposing the relocation were sincere.  

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. Under this factor, the court considered Father’s concerns over Mother’s past abuse of cocaine.  She said she is no longer using though she has struggled with addiction. The court notes that Father did not seek to modify the custody for the child’s well-being and no was there evidence of present abuse by Mother or any risk of harm to the child. This factor was found in favor of Father. 

10).  Any other factor affecting the best interest of the child.  The court believes that both parents are good parents.  The decision notes that Mother has been financially providing for the child and that is Father has not been providing child support and is in contempt of his financial obligations. Mother also provided that the relocation would help with the child’s asthma and health issues.  The support system and family members who reside near the proposed relocation would benefit mom. After considering these factors, the court found that Mother met her burden and then turned to the custody factors. 

In addition to the relocation factors, the court also considered the 16 Custody Factors:

1).Which parent is more likely to encourage and permit frequent and continuing contact for the child with the other parent?In this case, the Court favored the Mother. The Mother presented evidence that Father only saw the child one time in six months. The Mother indicated that the child needed his Father. Court felt that the Mother would be more likely to encourage contact.  

2).  Was there present or past abuse or a continued risk of harm to the child? In this case, there was no evidence of abuse making this factor irrelevant. 

3).  Parental duties performed by each party on behalf of the child. In this case, the Mother had provided the majority of the child’s care since birth.

4).  Need for stability and continuity of child’s education, family life and community life. Again, this factor was favored to the Mother. The Father in this case had not contributed to the child’s support. 

5).  Availability of extended family. This factor was awarded to the Father in this case. Most of the extended family for both Mother and Father were in Pennsylvania. However, Mother did have family in Florida. 

6).  Child’s sibling relationships.In this case, there were no siblings, making this factor irrelevant. 

7).  Well-reasoned preference of child, based upon child’s maturity and judgment. In this case, the child was 5 years old and not interviewed by the Court, making this factor irrelevant. 

8).  Attempts of parents to turn child against each other, except in cases of domestic violence where reasonable safety measures are necessary.The Court was neutral in this case as it did not appear that either parent had attempted to turn the child on the other parent. 

9).  Which parent is more likely to maintain a loving, stable, consistent, and nurturing relationship with the child adequate for child’s emotional needs?The Court again favored the Mother. The Father’s time with child was inconsistent; including a six month period of time that he only saw child one time. 

10).Which parent is more likely to attend to daily physical, emotional, developmental, educational and special needs?The Court believed that both parents would attend to the needs of the child in this case. Therefore the Court was neutral on this factor. 

11).  Proximity of residences of parties.The Court favored the Father in this factor as all of the extended family lived within Monroe County. The Mother was asking to move with the child to Florida. 

12).Availability to care for child or make child care arrangements. The Court was neutral on this factor as both parties have family close in Pennsylvania and Mother stated that she has family in Florida close to where she wanted to move to. 

13).Level of conflict and willingness of parties to cooperate with one another.The Court was neutral on this factor as it appeared that the parents had good communications.

14).History of drug or alcohol abuse.The Court was neutral on this factor. The Father suggested that the Mother had a previous drug habit, but she claimed that was no longer an issue. The Court noted that Father did not present any evidence to the contrary. Furthermore, the Father did not seek sole custody based on the Mother's alleged drug issues.

15).Mental and physical condition of part or other members of household.The Court was neutral on this factor.

16).Other relevant factors. The Mother was the primary care giver. Both parents co-parent very well. Both parents love and nurture child. 

The most important factor to consider is what is in the best interest of the child. In this situation, the Court held that the parents would continue with shared legal custody and shared physical custody, with the Mother being the primary custodial parent. The Father would have physical custody that worked with the child’s school calendar. The Mother had been the child’s primary parent since his birth. She was the parent who took him to his healthcare appointments. The Father had not been paying any child support, so the Mother had been solely providing for the child’s financial support. 

The Court further held that since the Mother wanted to make the move that she had to pay for travel arrangements for time for the Father to see the child for Christmas Break 2019 and Spring Break 2020. Beginning in summer vacation 2020, the parents would share transportation expenses equally. Furthermore, the Court ordered that the parents would have telephone access to the child that was reasonable. 

What does this mean for you?  

If you find yourself in the situation where a parent is considering a move, you will need assistance in presenting evidence to satisfy the factors as outlined by the Court. Call Kinchloe Law at 215-564-1580 so that we can assist you in the assessment of your current situation and to discuss your options.

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.