The recent Pennsylvania Superior Court case of Fuehrer v. Fuehrer reminds the family law practitioner of the importance of an expert and a custody evaluation/assessment in relocation cases. In this case, the Superior Court vacated the trial court’s order granting mother’s petition to relocate from Westmoreland County, Pa., to the Netherlands.

Beth A. Fuehrer and Ronald D. Fuehrer were married in 1995 and became the parents of two daughters who at the time of the hearing were ages 6 and 9. In 2003, the parties separated at about the same time that mother met Mr. VanWeert (a citizen of the Netherlands) in an Internet chat room.

After the parties separated, mother was granted primary physical custody of the parties’ daughters with father having partial physical custody on Thursdays and alternating weekends. The parties also had shared legal custody of the children. In October 2004, mother filed a petition to relocate with the children to the Netherlands. Thereafter, father filed a petition for primary physical custody. Both petitions were consolidated and a hearing was held.

At the hearing, the trial court heard testimony from the parties, the daughters, VanWeert, the director of family services for Westmoreland Regional Hospital (appointed by the court to make an evaluation), and an attorney from the Netherlands "who was familiar with family court matters in her country." The trial court, after the hearing, issued an opinion and order granting mother primary physical custody and permitting her to relocate to the Netherlands with the children. Father was granted periods of partial physical custody. The trial court ordered that the parties continue shared legal custody.

Father appealed the trial court’s ruling, "arguing the court improperly applied the test governing relocation requests and incorrectly determined that permitting relocation was in the best interest of the children." The Superior Court held "our extensive review of the record and trial court’s rationale for its decision causes us to agree with appellant’s assessment of the trial court’s ruling."

In its opinion, the Superior Court stated, "the paramount concern in a child custody case is the best interest of the child, based on a case by case ‘consideration of all factors that legitimately affect the child’s physical, intellectual, moral and spiritual well-being.’" The Superior Court further reiterated that in child custody relocation cases the best interest analysis must incorporate the three factors originally outlined the seminal case of Gruber v. Gruber. The three Gruber factors are as follows:

The potential advantages of the proposed move, economic or otherwise, and the likelihood that the move would improve substantially the quality of life for the custodial parent and the children and is not the result of a momentary whim on the part of the custodial parent;

  • The integrity of the motives of both the custodial and noncustodial parent in either seeking to move or seeking to prevent it; and
  • The availability of realistic, substitute visitation arrangements that will foster adequately an ongoing relationship between the child and the noncustodial parent.

The factual background of the case is as follows: When mother was 15 years old she became pregnant and gave birth to a daughter. Thereafter, mother married the child’s father, though the child was given up for adoption to the paternal grandparents. That child is currently an adult. Mother later became pregnant by another man (not appellant-father in the present case), divorced her then-husband, and later gave birth to the first of two daughters she had with him one born in 1983 and another in 1985.

In 1998, mother met father at a Narcotics Anonymous meeting. Both had a history of drug abuse. The parties married after mother became pregnant with the parties’ oldest child in 1995 and that child was born Sept. 22, 1995. In June 1998, the couple’s youngest child was born. The parties lived with their daughters and mother’s two older daughters from the previous relationship. "Although father did not adopt his stepdaughters, he was the means of support for the entire family."

Since the parties’ drug treatment in 1998, they have remained drug-free and obtained higher education.

In 2003, mother met VanWeert in an Internet chat room. VanWeert at the time was married to his wife of 24 years with whom he had two children. In October 2003, VanWeert and mother arranged to meet at an airport in Washington, D.C. On the day that VanWeert left to meet mother, his wife separated from him. During their meeting in Washington, mother and VanWeert "commenced a sexual relationship."

Due to a hotel-booking mix-up, VanWeert took a bus to Pennsylvania and stayed with mother and her daughters at their home for the remainder of VanWeert’s two-week trip. VanWeert also returned to mother’s home in December 2003 for approximately two weeks, staying with mother and the children. It is unclear from the opinion as to whether father was also present at the home when VanWeert was staying with mother. VanWeert again returned in May 2004 to visit mother for a weeklong stay, and then mother traveled with the children to the Netherlands in the summer of 2004 for eight weeks.

The opinion also reflects that VanWeert has a comfortable home in the Netherlands, with extended family living nearby and that VanWeert indicated to mother that "should mother be given permission to live in the Netherlands with her daughters, he would ask her to marry him." Mother also testified that "if she resided in the Netherlands, she would not work outside of the home and depend on VanWeert for support."

The trial court found "the children are more emotionally invested in their mother than they are in father." The trial court also found that "emotionally, mother and VanWeert could provide stronger emotional support to the children than father can at this time." The Superior Court stated, "the [trial] court remarked that this finding was made in view of father’s proposed custody arrangements, which included time with a baby-sitter or nanny in the early morning hours and after school."

However, the trial court acknowledged that "mother has demonstrated a somewhat unstable emotional make up," and that mother’s "approach to the break up of her marriage and the almost instantaneous involvement with a foreign national, shows a lack of good judgment on her part."

The trial court found that despite the lack of good judgment on mother’s part, "significant advantages will accrue to mother if she moved to the Netherlands and these advantages would then flow to the children." The trial court stressed again that the children were more deeply invested in mother than they were with father due to the fact that father worked long hours during the course of the marriage while mother was at home with the children.

In the trial court’s Gruber analysis, the court concluded that the move would be beneficial to mother and that it was not the result of a momentary whim. The court also found that both parents loved their children and neither parent sought to move or to prevent the move out of malice or hatred.

With regard to factor three, the trial court found that mother proposed a realistic substitute visitation schedule to father by indicating that she would maintain contact between the children and father through Web camera setups, telephone contact and visits during school breaks and holidays. "Mother also offered evidence regarding a camping trailer which would be available to father for three continuous weeks in the summer during visits to the Netherlands." Therefore, the trial court found that mother satisfied the three factors of Gruber and that the proposed relocation would be in the children’s best interest.

However, the Superior Court disagreed. Specially, the Superior Court had an issue with factors one and three of Gruber. The Superior Court found that mother’s intention to relocate to the Netherlands with the children was borne from a "whim." Lastly, under factor one, the Superior Court stressed that mother is not married to, nor engaged to VanWeert and is moving based upon his promise to support her. Likewise, the Superior Court was not satisfied that mother fulfilled the requirements under the first factor of Gruber.

With regard to the third factor of Gruber, the Superior Court stated that mother’s proposed alternate visitation scheduled failed to account "for the viability of such contact." "There was no testimony offered to show that phone and Internet contact was viable in view of the time differences which must exist in different parts of the world. In a similar vein, there was no testimony offered that father has the ability to take three weeks of consecutive vacation time to make use of the camper that was offered." Therefore, mother did not satisfy the Gruber requirements.

Interestingly, the children testified and expressed their desire to move to the Netherlands with mother. The Superior Court stated, "We have reviewed the testimony of the children. They spoke about their trip to the Netherlands and the good times they had there visiting various sites and meeting new people. However, it must be recognized that this move does not represent a vacation."

The director of Family Services provided an assessment/evaluation and recommended that the children remain with their mother in their current home where they are thriving, and that they continue to see father on a regular basis as he provides a loving and stable influence in their lives. The director further testified that the results of the assessment caused her "to conclude that the children’s desire to move to the Netherlands was based on the fact that, as children, they want their mother to be happy … but that it would not be in their best interest to move away from father."

The Superior Court found that "the trial court failed to consider the clear option of continuing custody with mother, but denying her petition to relocate." In reversing the trial court’s decision to grant mother’s petition to relocate, the Superior Court held, "We find this decision was erroneously based simply on the fact that mother desires to move to promote her love interests and the corresponding conclusion that it is best for the children to follow mother in promoting her desire because of their bond with her. While the record offers support from the trial court’s conclusion that the children should continue to remain in their mother’s custody, it does not follow that this decision should result in the grant of mother’s request to relocate."

This case is interesting because it involves a situation where mother’s motives for her intended move were pure, and the children testified that they too wanted to relocate with mother. However, in denying her request, the Superior Court gave considerable weight to the assessment/evaluation which discounted the children’s preference and underscored mother’s proposed alternate visitation schedule by finding that the move would hinder the children’s relationship with father and would not be in their best interest.

This case is also important because the Superior Court found mother’s intended move to be whimsical and her relationship to VanWeert as simply a "romance" which could fail.

***

 

Michael E. Bertin is an associate in the Philadelphia law firm of Obermayer Rebmann Maxwell & Hippel LLP. Mr. Bertin is a member of Council of the Family Law Section of the Pennsylvania Bar Association and is Co-Chairman of the Custody Committee of the Family Law Section of the Philadelphia Bar Association.

 

This article is reprinted with permission from the October 10, 2006 issue of The Legal Intelligencer © 2006 NLP IP Company.

 

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.