The recent Pennsylvania Superior Court case of Speck v. Spadafore reiterates that in a child-custody relocation case the best interest of the child is paramount. The Superior Court vacated the trial court's order granting the mother's petition to relocate from York County, near Harrisburg, to Butler County, near Pittsburgh.

In Speck, the parties, Christina Speck and Michael Spadafore, who were never married, had a child, Michael Spadafore Jr., on April 12, 1996. After the parties' relationship ended, they agreed to a custody arrangement that was memorialized in a court order. The order provided that the parties have shared legal custody of Michael Jr., with Speck having primary physical custody and the father having partial physical custody on every Monday, Wednesday and Friday from 2:30 to 7:30 p.m. and every other Friday from 2:30 p.m. until Saturday at 7 p.m.

On April 6, 2005, Speck filed a petition to modify custody to allow her to relocate with Michael Jr. to Butler County to live with her fiancé. Spadafore opposed the relocation.

The matter was heard by the trial court on June 27, 2005 and July 1, 2005. Testimony was taken from both parties, Speck's fiancé, Spadafore's live-in girlfriend of six years, Nancy, and Spadafore's two sisters. The trial court also interviewed Michael Jr. in the presence of counsel for the parties.

At the conclusion of the trial, the trial court entered an order continuing shared legal custody and granted Speck primary physical custody and permission to relocate to Butler County with Michael Jr. Spadafore was granted partial physical custody of Michael Jr. in the summer months until two weeks before the start of Michael Jr.'s school. The order also provided that the parties were to alternate holiday weekends, Thanksgiving, Christmas and spring breaks from school. Spadafore appealed the trial court's order.

The Superior Court has previously set out a three-prong test to be applied in child relocation cases in the case of Gruber v. Gruber. The three prongs are as follows:

  • The potential advantages of the proposed move, economic or otherwise, and the likelihood 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 the 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. In the cases that have occurred subsequent to Gruber, the Superior Court has reiterated that the Gruber test should be applied in the context of the best interest of the child, which is the primary concern in all child custody cases.

Father's appeal raised the following issues:

  • Whether the trial court erred in determining that the proposed relocation would substantially improve the quality of life for Speck and Michael Jr.;
  • Whether the trial court erred in determining the integrity of Speck's motives in seeking to relocate;
  • Whether the trial court erred in finding the existence of a realistic substitute visitation schedule that would foster the ongoing relationship between Spadafore and Michael Jr.; and
  • Alternatively and assuming that Speck's relocation petition should be granted, whether the trial court erred by failing to provide Spadafore with additional custodial periods during the school year.

The Superior Court did not address Spadafore's second, third and fourth issues since it disposed of the case under Spadafore's first issue.

The important facts of this case are as follows: Spadafore has lived with his girlfriend, Nancy, for six years, and he has two children with her, ages 3 and 4. Nancy also has a 12-year-old child from a previous relationship. Spadafore owns a local pizza and sub shop.

Speck is a payroll supervisor, has previously been married and has no other children. The record reflects that Michael Jr. and his father have a very close relationship. For the past four years, Spadafore has been Michael Jr.'s baseball coach and Michael Jr. has for the first time been selected to the all-star team. Further, Michael Jr.'s extended family (grandparents, cousins, half-siblings and friends) live in York County.

The Superior Court focused on prong one of Gruber and conducted an in-depth analysis of whether the move would substantially improve Speck and Michael Jr.'s quality of life. In arguing that it did not, Spadafore asserted that "The trial court improperly emphasized economic advantages of the move and . . . any alleged benefit of relocation . . . is outweighed by the advantages of remaining in the Harrisburg area, such as his nearly daily contact with his son, the support of extended family and the continued vitality of the child's relationships with father's other two children. . . . [and father] will be unable to participate in the child's educational activities."

The Superior Court stated: "It is clear that in the instant case . . . the trial court focused on mother's personal happiness to the virtual exclusion of the other relevant facts." The Superior Court stressed: "the trial court herein observed that the current custodial schedule in York County 'appeared to be working well for Michael Jr. Michael Jr. has frequent contact with his father. . . . Father has been Michael Jr.'s baseball coach for four years and . . . all extended family reside in the Harrisburg area, most within 10 minutes of the parties' homes. . . . Michael Jr. appeared to enjoy warm, cordial relations with his extended family on both sides."

It is clear that the Superior Court's primary focus was on Michael Jr. The Superior Court, in analyzing the record, concluded that the only benefit of the proposed relocation to Speck would be her ability to live with her fiancé. The Superior Court emphasized that the record reflected that in comparing the proposed living environment to the existing one, the detriments outweighed the benefits. Specifically, the schools, houses and financial situations in both environments were comparable, and Michael Jr. was doing well in his current school.

Further, there would be no financial advantage in moving, since Speck planned not to work when she moved, and the distance between the parental homes would increase transportation costs. Additionally, the Superior Court found that it was important not to separate Michael Jr. from his brother and sister, especially since Michael Jr. emphasized his enjoyment of interacting with his brother, sister and his stepbrother in his interview with the judge before even expressing his desire to spend time with his parents.

This case boils down to the advantages to Speck not outweighing the disadvantages to the child. The best interest of the child was the overriding concern of the Superior Court, and it appears that the in-camera interview of the child factored heavily into the Superior Court's decision.

The Superior Court stated, "We can identify no significant benefits of relocation to the child in the instant case. The reality is that Michael Jr. enjoyed a good quality of life, surrounded by loving parents, siblings, extended family, a sound school, a circle of friends, and extracurricular activities. This case was not about a parent seeking a new or better job, obtaining better educational opportunities for the parent or child, improving living conditions or standard of living, gaining the support of relatives or increasing those contacts, or fleeing an unbearable or unhealthy relationship. Rather, this relocation had one goal, mother's cohabitation with the man she intended to marry. That mother seeks such love and companionship is understandable. However, that one fact, alone, is simply not enough to require a 10-year-old child to relinquish his parental and familial supports, the very relationships that will enrich and sustain him as he grows to adulthood."

This case is an interesting case, because on its face, one would think that the relocation would be granted because the proposed relocation was intrastate and Speck's motive was pure, as it is understandable that Speck would want to move to live with her soon-to-be-husband. However, it is refreshing that the Superior Court steered away from the trickle-down theory of "what's good for the parent is good for the children," and focused on the child.

Because there were no other major benefits to Speck, the Superior Court found that the child should not be ripped from his foundation for the sole purpose of Speck being with her soon-to-be-husband. This case reminds family law practitioners that intrastate proposed relocations and pure motives of the parent seeking relocation are not guarantees that a proposed relocation will be granted.

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 May 5, 2006 issue of The Legal Intelligencer © 2006 NLP IP Company.