B.K.M. v. J.A.M.

50 A.3d 168, 2012 Pa. Super. 156, 2012 WL 3089346, 2012 Pa. Super. LEXIS 1599
CourtSupreme Court of Pennsylvania
DecidedJuly 31, 2012
StatusPublished
Cited by33 cases

This text of 50 A.3d 168 (B.K.M. v. J.A.M.) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
B.K.M. v. J.A.M., 50 A.3d 168, 2012 Pa. Super. 156, 2012 WL 3089346, 2012 Pa. Super. LEXIS 1599 (Pa. 2012).

Opinion

OPINION BY

BENDER, J.:

J.A.M. (“Mother”) appeals from the order dated January 4, 2012, and entered January 5, 2012, awarding Mother and B.K.M. (“Father”) shared legal custody of A.M. (born December of 2003), L.M. (born March of 2005), and J.M. (born March of 2008) (collectively, “the Children”), awarding Mother and Father shared physical custody of the Children, in the event that Mother elects to reside in Montgomery County, Pennsylvania, in accordance with a schedule, and, alternatively, awarding Father primary physical custody of the Children, in the event that Mother elects to- reside in Sweden, also in accordance with a schedule. The trial court order additionally denied Mother’s petition for relocation with the Children to the country of Sweden. We vacate and remand.

Mother and Father met in New Jersey in 1997. N.T., 10/27/11, at 18-19. Mother is a citizen of Sweden. Id. at 226. The parties were married in Sweden in June of 2002. Id. at 26. Shortly thereafter, Mother was diagnosed with ulcerative colitis. N.T., 10/28/11, at 168. Mother’s condition progressed, eventually requiring a series of surgeries, the first of which occurred in June of 2009. Id. at 171-74. Mother underwent three surgeries in the United States, which took place in June of 2009, September of 2009, and December of 2009. I'd'.

Mother required a fourth and final surgery, which Mother and Father agreed she should seek in Sweden, rather than in the United States. N.T., 10/27/11, at 106-07; N.T., 10/28/11, at 68-70. The parties anticipated that the surgery would take place in the summer of 2010. On April 29, 2010, Mother, Father, and the Children traveled to Sweden. N.T., 10/27/11, at 118. While in Sweden, Father informed Mother that he wanted to end their marriage. Id. at 127-28. On May 5, 2010, Father returned to the United States, while Mother and the Children remained in Sweden. Id. at 129. Mother and the Children were initially scheduled to stay in Sweden for the summer, and return on a flight scheduled in August of 2010. Id. at 107-08.

Subsequently, medical necessity delayed Mother’s surgery date, initially until September of 2010. Id. at 133. Upon learning of the delay, Father agreed that the Children could remain in Sweden during that period. N.T., 10/27/11, at 133-34; N.T., 10/28/11, at 78-79.

On October 26, 2010, Father filed for divorce. In December of 2010, Mother returned briefly to the United States, alone, with hopes that Father might change his mind regarding the divorce. N.T., 10/28/11, at 84, 87. Mother had hopes that Father would agree to seek counseling and preserve the marriage, but learned during the visit that Father had a paramour. Id. at 86-87.

In March of 2011, Mother was finally able to undergo the fourth and final surgery. Id. at 181-82. That same month, Father informed Mother that he wanted to bring the Children from Sweden to Disney World in Florida, but Mother refused. N.T., 10/27/11, at 143.

In May of 2011, Father filed a petition for an expedited custody hearing. In June of 2011, Father and Mother attended a custody conciliation, with Mother participating via telephone. Mother, still recovering from her surgery, represented that [171]*171she and the Children would not return to the United States until her health improved. Id. at 155, 148-52. Shortly thereafter, the Children returned to the United States for a four-week visit with Father, from July 11, 2011 to August 11, 2011, at Father’s home in King of Prussia, Pennsylvania. Id. at 174. During the Children’s visit, Father filed an emergency petition seeking to keep the Children in the United States, which the trial court denied by an order entered August 9, 2011.

On October 27 and 28, 2011, the trial court held a custody hearing at which Mother, Father, and several family members testified. On January 5, 2012, the trial court entered its order, granting shared legal custody of the Children to Mother and Father. The trial court order also granted shared physical custody to Mother and Father, in accordance with a schedule, in the event that Mother returns to Montgomery County, and, alternatively, granted primary physical custody to Father, in accordance with a schedule, in the event that Mother remained in Sweden. The trial court order also denied Mother’s petition for relocation.1

On January 20, 2012, Mother timely filed her notice of appeal and simultaneously filed the concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)© and (b).

On appeal, Mother raises five questions for our review:

I.Did the Trial Court err when it issued an Order which awarded primary physical custody to Mother if she resides in the United States while awarding primary physical custody to Father if Mother resides in Sweden[?]
II. Did the Trial Court err by failing to consider and/or apply certain factors required for consideration when conducting a best interest of the child analysis^]
III. Did the Trial Court err by failing to properly analyze the factors permitting relocation[?]
IV. Did the Trial Court err by utilizing, the January 2011 Custody Act, and particularly the “new” relocation standards in deciding this matter?
V. Did the Trial Court err by affording undue weight to facts either not placed in the record or, alternatively, facts not established through expert testimony!?]

Mother’s Brief at 8.

As a preliminary matter, we must determine the law that applies in this case. Mother addresses this as her fourth issue on appeal. Mother’s Brief at 45-48. The recently enacted Child Custody Act (“Act”), codified at 23 Pa.C.S. §§ 5321-5340, governs all “proceedings” commenced after January 24, 2011. See 23 Pa.C.S. § 5321. Recently we held, “if the evidentiary proceeding commences on or after the effective date of the Act, the provisions of the Act apply even if the request or petition for relief was filed prior to the effective date.” C.R.F., III v. S.R.F., 2012 WL 1893510, at *4 (Pa.Super. May 25, 2012). Instantly, the evidentiary proceeding commenced on October 27, 2011, after the effective date of the Act. Accordingly, the Act is the applicable law, and the trial court did not err in finding it applicable.

[172]*172In addressing the remainder of Mother’s issues, we note that Mother’s second and third issues are dispositive. Additionally, these issues turn on similar arguments, and so we address them together. Mother argues that the trial court erred by failing to consider and apply certain factors required when conducting a best interest of the child analysis under 23 Pa.C.S. § 5828(a), and failing to properly analyze the factors permitting relocation under 23 Pa.C.S. § 5337(h).2 Mother’s Brief at 28, 38.

Central to her argument on both of these issues, Mother argues that the trial court erred in its interpretation of 23 Pa. C.S. § 5837(0. Mother’s Brief at 33, 42. Mother faults the trial court for disregarding evidence concerning the Children’s lives in Sweden since April 2010, pursuant to its interpretation of section 5337(Z).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

OMalley, K. v. Isquierdo, D.
2025 Pa. Super. 203 (Superior Court of Pennsylvania, 2025)
Trust of John S. Middleton, Appeal of: Riley, P.
2024 Pa. Super. 53 (Superior Court of Pennsylvania, 2024)
In Re: Dille Family Trust, Appeal of: Williams, L.
Superior Court of Pennsylvania, 2023
Bolds, R. v. Bowe, H.
Superior Court of Pennsylvania, 2022
Adoption of: J.D.A.P., Appeal of: O.P.
Superior Court of Pennsylvania, 2022
E.C.-S. v. M.C.S.
2021 Pa. Super. 111 (Superior Court of Pennsylvania, 2021)
E.A.-D. v. I.S.C.
Superior Court of Pennsylvania, 2020
K.W. v. K.W.
Superior Court of Pennsylvania, 2020
A.M.A. v. O.H.F.
Superior Court of Pennsylvania, 2019
E.B. v. D.B.
209 A.3d 451 (Superior Court of Pennsylvania, 2019)
M.W. v. A.R.
Superior Court of Pennsylvania, 2018
In Re: Adoption of K.M.L., Appeal of: R.J.D. etc.
Superior Court of Pennsylvania, 2018
S.D.H. v. A.H.
Superior Court of Pennsylvania, 2018
S.A.R. v. D.C.R.
Superior Court of Pennsylvania, 2017
C.G. v. K.N.
Superior Court of Pennsylvania, 2017
M.J. v. S.G.B.
Superior Court of Pennsylvania, 2017
L.J.L. v. E.N.C.
Superior Court of Pennsylvania, 2017
A.F. v. J.F.
Superior Court of Pennsylvania, 2016
In Re: Adoption of D.S.
Superior Court of Pennsylvania, 2016
C.B. v. L.B.
Superior Court of Pennsylvania, 2016

Cite This Page — Counsel Stack

Bluebook (online)
50 A.3d 168, 2012 Pa. Super. 156, 2012 WL 3089346, 2012 Pa. Super. LEXIS 1599, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bkm-v-jam-pa-2012.