Fuehrer v. Fuehrer

906 A.2d 1198, 2006 Pa. Super. 205, 2006 Pa. Super. LEXIS 1729, 2006 WL 2146923
CourtSuperior Court of Pennsylvania
DecidedAugust 2, 2006
DocketNo. 2117 WDA 2005
StatusPublished
Cited by4 cases

This text of 906 A.2d 1198 (Fuehrer v. Fuehrer) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fuehrer v. Fuehrer, 906 A.2d 1198, 2006 Pa. Super. 205, 2006 Pa. Super. LEXIS 1729, 2006 WL 2146923 (Pa. Ct. App. 2006).

Opinion

OPINION BY

DEL SOLE, P.J.E.:

¶ 1 This is an appeal from a trial court order which granted Appellee-Mother’s petition for relocation to the Netherlands and denied Appellant-Father’s petition which sought primary physical custody of the parties’ two children.

¶ 2 The parties were married in 1995 and became the parents of two daughters, who at the time of the relevant hearing were ages 6 and 9. The parties separated in 2003, about the time Mother met Mr. VanWeert, a citizen of the Netherlands, on the Internet in a chat room. By court order, Mother was granted primary physical custody of the girls with Father having partial periods of physical custody on Thursdays and on alternating weekends. The parties shared legal custody of the children. In October of 2004, Mother filed a petition for relocation in which she sought court approval to relocate with the children to the Netherlands on a permanent basis. Father then filed a petition for primary physical custody. The trial court ordered the petitions consolidated and a hearing was held in which testimony was received from the parties, their daughters, Mr. VanWeert, the director of Family Services for Westmoreland Regional Hospital, who was appointed by the court to make an evaluation, and an attorney from the Netherlands who was familiar with family court matters in her country. Thereafter the trial court issued an opinion and order granting Mother primary physical custody and permitting her to relocate to the Netherlands with the children. Father was granted certain periods of partial physical custody. Legal custody remained shared with both parents.

¶ 3 In this appeal Father challenges the trial court’s ruling, arguing that the court improperly applied the test governing relocation requests and incorrectly determined that permitting relocation was in the best interest of the children. Our extensive review of the record and the trial court’s rationale for its decision causes us to agree [1200]*1200with Appellant’s assessment of the trial court’s ruling.

¶ 4 In reviewing a trial court’s determination in a matter of custody we remain mindful that:

[0]ur scope is of the broadest type and our standard is abuse of discretion. This Court must accept findings of the trial court that are supported by competent evidence of record, as our role does not include making independent factual determinations. In addition, with regard to issues of credibility and weight of the evidence, this Court must defer to the trial judge who presided over the proceedings and thus viewed the witnesses first hand. However, we are not bound by the trial court’s deductions or inferences from its factual findings. Ultimately, the test is ‘whether the trial court’s conclusions are unreasonable as shown by the evidence of record.’

Johns v. Cioci, 865 A.2d 931, 936 (Pa.Super.2004) (citations omitted). 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.” Speck v. Spadafore, 895 A.2d 606, 609 (Pa.Super.2006) (citing Swope v. Swope, 455 Pa.Super. 587, 689 A.2d 264 (1997)). When a court is asked to review a request by one of the parents to relocate with the child the best interest analysis must incorporate the three factors originally outlined in Gruber v. Gruber, 400 Pa.Super. 174, 583 A.2d 434 (1990):

1. The court must assess the potential advantages of the proposed move and the likelihood that the move would substantially improve the quality of life for the custodial parent and the children and is not a momentary whim on the part of the custodial parent.
2. Next, the court must establish the integrity of the motives of both the custodial and the non-custodial parent in either seeking the move or seeking to prevent it.
3.Finally, the court must consider the availability of realistic, substitute visitation arrangements which will adequately foster an ongoing relationship between the child and the non-custodial parent.

Billhime v. Billhime, 869 A.2d 1031, 1037 (Pa.Super.2005).

¶ 5 In the instant case, the trial court recognized its duty of analysis under Gru-ber. In a detailed opinion the trial court sought to apply the necessary considerations to the facts presented before it. However, the trial court erred in not examining the entire factual background of the case and in focusing its ultimate decision on the fact that the children have a closer bond with Mother than with Father. The trial court failed to consider whether it would be in the children’s best interest to protect that bond, and yet deny Mother’s request to locate.

¶ 6 The following facts were established during the hearing. When Mother was 15 she became pregnant and gave birth to a daughter. Although she married the child’s father, the child was given up for adoption to the paternal grandparents. That child is currently an adult and serving in the armed forces in Belgium. Mother later became pregnant by another man, 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 1988, Mother met Father at a Narcotics Anonymous meeting. Both parties had sought help from the organization after years of drug abuse. After Mother became pregnant with the couple’s oldest child, the parties married in 1995. Their first daughter was born on September 22, 1995. The couple lived as a family with Mother’s two older daughters, who were at the time ages 10 and 12. Although Father [1201]*1201did not adopt his step-daughters he was the means of support for the entire family. In June of 1998, the couple’s youngest child was born.

¶ 7 Since the time of the parties’ treatment in 1988, both have remained drug free. Father went to college, obtained an engineering degree and at the time of the hearing he was employed as a project manager earning $112,000 per year. Mother earned a college degree in accounting, but was not employed outside the home as she was responsible for most of the day-to-day care of the home and the children.

¶ 8 In the summer of 2003, Mother began communicating with Mr. VanWeert through a chat room or message board on the Internet. They progressed to exchange e-mails and instant messages. They arranged to meet in October of 2003 at an airport in Washington, D.C. Mr. VanWeert testified that he traveled to the United States from the Netherlands to visit and meet with Mother. The day he left for his trip his wife of 24 years was packing to leave their marital home. He traveled first to Amsterdam, and when he received confirmation of his wife’s actions, he departed on his flight to Washington.

¶ 9 Mr. VanWeert was met by Mother in Washington and they commenced a sexual relationship. Mother left after the weekend to return home. Upon receiving additional confirmation of his wife’s departure from the marital home and a hotel booking mix-up, Mr. VanWeert phoned Mother and made arrangements to take a bus to Pennsylvania.

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Cite This Page — Counsel Stack

Bluebook (online)
906 A.2d 1198, 2006 Pa. Super. 205, 2006 Pa. Super. LEXIS 1729, 2006 WL 2146923, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fuehrer-v-fuehrer-pasuperct-2006.