Emery v. Emery

81 Pa. D. & C.4th 99
CourtPennsylvania Court of Common Pleas, Lawrence County
DecidedAugust 23, 2006
Docketno. 11392 of 2004, C.A.
StatusPublished

This text of 81 Pa. D. & C.4th 99 (Emery v. Emery) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lawrence County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Emery v. Emery, 81 Pa. D. & C.4th 99 (Pa. Super. Ct. 2006).

Opinion

PICCIONE, J.,

Before the court for disposition is Kimberly Carol Emery’s (Mother) petition to relocate. Mother is requesting permission to relocate with the Minor Children, [ ] bom June 6, 1991 and [ ] bom June 24,1993 to Mercer County, Pennsylvania. The court will not be utilizing any notes of testimony from the hearings to supplement the record, as the court wishes to implement this custody order in an expedited manner in order to best facilitate any transitions for the parties and the Minor Children before the commencement of the school year.

The existing custody order dated January 11, 2005 awards, by agreement of the parties, primary physical custody of the Minor Children to Mother, subject to the partial custody rights of Bruce W. Emery (Father). Father currently enjoys partial custody of the Minor Children on each Monday after school to 8 o’clock p.m. and on every other Friday after school until Saturday at 2 p.m. and every other Sunday on the weekends that Father does not have the minor children on Sunday at 2 p.m. until 7 p.m. Mother and Father share legal custody of the Minor Children.

Mother seeks to relocate the minor children to 1355 Cochranton Road, Mercer County, Pennsylvania. This is approximately a 50-minute drive from Mother’s prior residence. Mother was employed by the Wilmington School District as a teacher’s aid and has applied to the Cochranton School District for employment, but, to the court’s knowledge, has not interviewed as of this time. The proposed relocation address is a two-story, five-bedroom home with two and one-half acres of land. Mother intends to reside at that location with her boyfriend of one year, Brian Smith. [101]*101Brian Smith is employed as a truck driver and currently has a good relationship with the Minor Children. If relocation is granted, the Minor Children would attend the Cochranton School District.

Father has not been exercising his periods of custody with the Minor Children for some time. Furthermore, Mother is unable to determine where Father currently resides, or what phone number he may be reached at. Mother has averred that she believes she can relay information to the Minor Children’s paternal grandmother, who Mother purports is able to contact Father.

The court finds the standards enumerated in Gruber v. Gruber, 400 Pa. Super. 174, 186, 583 A.2d 434, 439 (1990), apply to this case in disposing of the relocation issue presented by Mother. The Gruber court set forth three factors a trial court must consider in determining whether a custodial parent may relocate a distance from the noncustodial parent.

“(1) [T]he potential advantages of the proposed move[, economic and otherwise,] and the likelihood... the move would substantially improve 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....

“(2) [T]he integrity of the motives of both the custodial and noncustodial parent in either seeking the move or seeking to prevent it....

“(3) The availability of a realistic substitute visitation arrangement, which will adequately foster an ongoing relationship between the children] and the non-custodial parent. Gruber, 400 Pa. Super at 186, 583 A.2d at 439; Burkholder v. Burkholder, 790 A.2d 1053 (Pa. Super. 2002).

[102]*102These three factors must be included in the ultimate consideration of the court, which is the children’s best interest. Thomas v. Thomas, 739 A.2d 206 (Pa. Super. 1999). Due to the fact that a custody order currently exists, the burden of proof is on the custodial parent requesting relocation. Dranko v. Dranko, 824 A.2d 1215 (Pa. Super. 2003); Tripathiv. Tripathi, 787 A.2d 436 (Pa. Super. 2001).

A determination of the children’s best interest must be premised upon all factors that legitimately affect the children’s physical, intellectual, moral and spiritual well-being. McAlister v. McAlister, 747 A.2d 390 (Pa. Super. 2000).

The first inquiry is whether the proposed relocation will improve the minor children’s quality of life. The court finds that Mother is seeking to establish a new family unit with Mr. Smith and the Minor Children. Although the court will not consider Mr. Smith’s income, as he is not married to Mother, this court notes that Mother has testified that she will be able to obtain similar employment in Mercer County. Furthermore, the court has heard testimony that Mother’s current residence (co-owned with Father) is currently under mortgage foreclosure. As Father has not appeared, nor responded to these proceedings, this court is constrained to accept that the proposed relocation will improve the quality of the Minor Children’s lives. Therefore, this court finds that the first prong of the Gruber analysis has been satisfied.

The next Gruber factor calls for the court to inquire into the integrity of the parties’ motives. Gruber, 400 Pa. Super, at 186, 583 A.2d at 439. The court finds that Mother’s desire to relocate is premised on her desire to further her relationship with Mr. Smith and attempt to establish a better situation, socially and economically, for [103]*103herself and the Minor Children. Father has not appeared in these proceedings; accordingly, it is impossible for this court to assess his motives. Accordingly, the court finds that the motives of the parties are pure, which satisfies the second Gruber prong.

The final prong of the Gruber analysis examines the availability of a realistic substitute visitation arrangement, which will foster adequately an ongoing relationship between the children and the noncustodial parent. Id. Father is purportedly failing to exercise his current periods of custody with the minor children. Nevertheless, due to the fact that the proposed relocation is approximately 50 minutes away from Father’s last known residence address, this court finds that a realistic substitute custody arrangement would be easily accomplished if Father attempts to reestablish contact with the minor children. Specifically, this court notes that Father could exercise the same aggregate period of custody with the minor children under the modified custody order.

Accordingly, the court finds that the third prong of the Gruber analysis is satisfied.

Considering all relevant factors and the Minor Children’s best interest, the court concludes Mother has now satisfied the standard set forth in Gruber; specifically, the court finds that the Minor Children will benefit from the proposed relocation, in that they will be in a developing family unit that is able to provide for their social, physical and economic needs. For these reasons, Mother’s petition to relocate is granted.

ORDER

And now, August 23, 2006, this court having held a hearing on My 31, 2006 on plaintiff’s petition to relo[104]*104cate, with Jean K.

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

Related

Dranko v. Dranko
824 A.2d 1215 (Superior Court of Pennsylvania, 2003)
McAlister v. McAlister
747 A.2d 390 (Superior Court of Pennsylvania, 2000)
Gruber v. Gruber
583 A.2d 434 (Supreme Court of Pennsylvania, 1990)
Thomas v. Thomas
739 A.2d 206 (Superior Court of Pennsylvania, 1999)
Burkholder v. Burkholder
790 A.2d 1053 (Superior Court of Pennsylvania, 2002)
Tripathi v. Tripathi
787 A.2d 436 (Superior Court of Pennsylvania, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
81 Pa. D. & C.4th 99, Counsel Stack Legal Research, https://law.counselstack.com/opinion/emery-v-emery-pactcompllawren-2006.