RALPH P. HART,

	Plaintiff

vs

REGINA J. HART,

	Defendant

IN THE COURT OF COMMON PLEAS FOR THE 26TH JUDICIAL DISTRICT, MONTOUR COUNTY BRANCH, PENNSYLVANIA
CIVIL ACTION - LAW

CASE NO: 62 0f 2001  

APPEARANCES:
SUSAN M. HILL, ESQUIRE, Attorney for Plaintiff	
JANICE RAMIN YAW, ESQUIRE, Attorney for Defendant

FINDINGS OF FACT, DISCUSSION, AND OPINION

FINDINGS OF FACT

1.	Plaintiff and defendant were married on November 26, 1993, and separated on September 24, 1999.  Plaintiff had instituted a divorce action just prior to the parties’ separation.  The divorce is not final.

2.	The parties are the parents of one minor child, Kaylee Hart, born June 14, 1995.

3.	When the parties separated, defendant left the marital home with the minor child.  Defendant has had primary custody of the child since separation.  Plaintiff has had regular temporary custody of the child.  Through August of 2000, the parties were contemplating reconciling.  That attempt ended in August 2000.  Since then, plaintiff has had regular, consistent temporary custody every other weekend and usually two evenings each week.  

4.	In February 2001, defendant informed plaintiff of her plans to relocate with the child to Tennessee effective in late May 2001.  Plaintiff filed a formal custody action.  The special master granted defendant primary custody of the child. Defendant was granted partial physical custody on alternating weekends, two evenings each week, and certain other times in the summer and on holidays.  The master was aware of the relocation plans and verbally requested the court to set a prompt hearing regarding relocation.  No exceptions were taken to the court’s order dated April 21, 2001, which adopted the master’s recommendations. The master indicated that “the recommendations herein are without prejudice for either party to seek primary physical custody of the child.”  Defendant filed a separate “Motion to Relocate/Petition for Plowman Hearing” on May 21, 2001, and a hearing was held on June 13, 2001.

5.	From the time of the separation until the present, the custody arrangement has proceeded uneventfully.  Plaintiff and defendant have cooperated in their informal custody arrangement and in the implementation of the order.  Plaintiff has exercised partial custody of the child faithfully and regularly in accordance with the informal arrangement and the order.

6.	At the June 13, 2001, hearing, plaintiff and defendant testified on behalf of themselves.  Kendall Jaeger (defendant’s fiancé) and Theresa Wark (defendant’s sister) testified for defendant.  Nancy Hart, plaintiff’s mother, testified on plaintiff’s behalf.  Defendant’s exhibits consisted of photographs of the child and other children from Tennessee and of her proposed residence in Tennessee and literature about the child’s proposed schools.  Plaintiff’s exhibits included photographs of the minor child and family members.

7.	Defendant is forty (40) years of age and is educated as a nurse.  She had been working at Head Start in Montour County but recently resigned from that job in anticipation of moving to Tennessee.   

8.	Defendant met her fiancé at a conference in Maryland in August 2000.  He is a police officer in Nashville, Tennessee.  Since August 2000, defendant and her fiancé have seen each other approximately two weekends each month and for ten (10) days in February 2001, when they decided to marry.  Defendant has been to Tennessee three times.  Mr. Jaeger first met Kaylee in October 2000 and then in April 2001.

9.	Mr. Jaeger purchased a home in a residential neighborhood in Tennessee on April 20, 2001.  Defendant and the minor child plan to reside there with Mr. Jaeger.  Defendant and Mr. Jaeger plan to marry on October 27, 2001.  The proposed home and neighborhood is appropriate.  Kaylee’s proposed school is a new elementary school that will open in the fall of 2001.  The new home, neighborhood, and school are not superior to the home, school, and neighborhood in Pennsylvania.

10.	After the separation, defendant moved to a home in the Danville area.  Recently she moved to Berwick near her sister, in anticipation of moving to Tennessee.

11.	Defendant’s fiancé, age 33, has worked as a Nashville police officer for several years.  He has steady employment and takes regular training in specialty law enforcement skills, such as ballistics.  He earns $45,000.00 per year with regular raises.  He has inquired, although not extensively, about employment in Pennsylvania and has found nothing to his satisfaction.  He is from Tennessee where he still has family.    

12.	Defendant wants to work part-time in order to be with Kaylee, although Kaylee starts school this year.  Defendant has not inquired about significant employment in Pennsylvania, particularly in her profession as a nurse. She has found a part-time job as a medical billing clerk in Tennessee, where she can work out of her home.  She is in training for that job. 

13.	Defendant has three children from a previous marriage.  Andy, age 20, attends Penn State University.  Becky, age 19, attends Lock Haven University.  Tim, age 16, is a high school student residing primarily with his father.  Tim sees defendant often and regularly.  

14.	Defendant has no family or close friends in Tennessee.    

15.	Plaintiff has continued to live in the former marital residence.  He resides there with his daughter Joanne, age 18, who just graduated from high school.  His other daughter Beth, age 20, is attending college at Carnegie Mellon University.  Joanne and Beth are children from plaintiff’s first marriage.  He had primary physical custody of these children since they were 10 and 8.

16.	Plaintiff works for a masonry company where he is a bricklayer superintendent.  His normal working hours are 7:00 a.m. to 3:30 p.m. 

17.	Kaylee will attend Liberty Valley Elementary School if she remains in Pennsylvania. 

18.	Almost all of plaintiff’s and defendant’s families and relatives are located in the Columbia County and Montour County vicinity.  Kaylee’s relatives (grandparents, aunts and uncles, and numerous cousins) live nearby.  She sees both maternal and paternal relatives often and regularly. 

19.	Defendant proposes that Kaylee will attend school in Tennessee.

20.	Although defendant is sincerely interested in the best interests of the child, defendant’s primary reason for relocating is to remarry after her divorce is finalized.  There are no other reasons.  

21.	Kaylee is too young to express a considered opinion about the proposed relocation.

22.	Defendant proposes that Kaylee visit her father (plaintiff) during most of the summer, during the Christmas vacation, and during the fall and spring school vacations.  The cost of transportation by plane is $162.00 roundtrip, which defendant says she can afford.

23.	There is no advantage for Kaylee to attend the Tennessee schools rather than the Danville schools.

24.	Defendant does not propose to move to a significantly improved environment.

25.	Defendant’s reasons for wanting to move are legitimate, tempered by concerns that her relationship with her fiancé basically developed through weekend contacts over six months prior to wedding plans.  She wants to remarry.  Her fiancé is steadily employed in a good job in Tennessee.

26.	Plaintiff’s reasons for opposing the move are legitimate.  He wants to be part of his daughter’s life on a regular basis as he has been, rather than on a disjointed basis as proposed by defendant.

27.	Defendant’s proposed substitute visitation arrangement will not adequately foster an ongoing relationship between the child and her father. 

28.	Although the proposed marriage and relocation may enhance defendant’s personal happiness, there is considerable question as to whether the relocation will benefit her and the child in any other way, including economically.  Balancing all factors, except for a proposed marriage, there is no significant improvement in the quality of life for the defendant and the child.

29.	The relocation is not in the best interest of the child. 

DISCUSSION

“[W]here either parent files a petition which raises the issue of whether it is in the best interest of the child to move with the custodial parent outside of the jurisdiction, a hearing must be held either before the move, or under exigent circumstances, within a reasonable time thereafter.”  Plowman v. Plowman, 597 A.2d 701, 706 (Pa.Super.1991).  Our hearing of June 13, 2001, was in accordance with Plowman.
In every relocation dispute the court must consider “the custodial parent’s desire to exercise autonomy over basic decisions that will directly affect his or her life and that of the children; a child’s strong interest in maintaining and developing a meaningful relationship with the non-custodial parent; the interest of the non-custodial parent in sharing in the love and rearing of his or her children; and finally, the state’s interest in protecting the best interests of the children.” Gruber v. Gruber, 583 A.2d 434, 438-39 (Pa.Super. 1990).
There is a three-prong test under Gruber to determine whether a custodial parent and child may relocate. The three Gruber considerations are:

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 the result of a momentary whim on the part of the custodial parent.

2.	The court must establish the integrity of the motives of both the custodial and non-custodial parent in either seeking the move or seeking to prevent it.

3.	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. Gruber v. Gruber, 583 A.2d at 439.

“These considerations must then be factored into the ultimate consideration of the court, which is to determine what is in the best interests of the child.”  Mealy v. Arnold, 733 A.2d 652, 655 (Pa.Super. 1999)(quoting Plowman, 597 A.2d at 707).  “The review must be based on the best interests of the child at the time of the hearing.”  Paradis v. Paradis, 748 A.2d 1260 (Pa.Super. 1999)(unpublished opinion regarding Columbia County case)(citing Plowman, 597 A.2d at 707).  
“In all instances where a custodial parent seeks to relocate and the non-custodial parent opposes the move, the burden is on the custodial parent to establish a significant improvement in the quality of life for that parent and child.  Further, with respect to the first Gruber prong, the potential advantages of the move, the trial court is not permitted to rely solely on ‘enhanced economic opportunities … but must also assess other possible benefits of relocation’ such as a ‘return to a network of family or friends, … educational opportunities, or … an improved physical environment.’”  Maurer v. Maurer, 758 A.2d 711 (Pa.Super. 2000)(citing Gruber, 583 A.2d at 439-439).
A Gruber analysis of this case indicates that relocation is not in the best interests of the minor child.  Although defendant’s decision to move is not based on a momentary whim, she has not carried her burden of proving that relocation would substantially improve the quality of life for both her and the child.  Certainly, the non-economic benefits of defendant’s new relationship are important and should be considered.  See Mealy v. Arnold, 733 A.2d 652, 658 (Pa.Super. 1999).  Although defendant’s fiancée appears to be a solid citizen and decent, hard working person, this court questions the stability of the relationship that developed over long distances, twice a month, for six months prior to engagement.  
This court also questions the efforts of defendant and her fiancé to secure a job for him in Pennsylvania where substitute visitation could adequately foster an ongoing relationship with both parents.  Economically, Mr. Jaeger is obviously concerned about transferring to a new job in a new area.  Yet, defendant has not proved that her fiancé has made good faith attempts to secure appropriate employment in Pennsylvania.  He appears to be a competent individual who could secure employment in his chosen field in Pennsylvania.  He may be concerned about pay cuts if he relocates.   However, even if Mr. Jaeger has a cut in pay, defendant could surely secure employment as a trained nurse to supplement their income.  While commendable, her desire to stay home with the child is compromised by her choices and by the fact that Kaylee starts school this year.
Defendant has not carried her burden of proving that she and Mr. Jaeger have made good faith efforts to locate in Pennsylvania in a situation that would be economically viable and would give Kaylee constant and regular contact with both parents.  Nor has she proved that the potential advantages of the proposed move will likely substantially improve the quality of the child’s life and defendant’s life.  In fact, several other factors mitigate against relocation, including removing the child from her numerous involved relatives; the cost of transportation which will diminish any purported economic benefits; and the disruption of a custody arrangement with both parents that has worked well toward fostering a good relationship with both parents.
The second prong of Gruber is an examination of the integrity of the motives of the parties for and against relocation.  There was no evidence to question the motives of defendant in wanting to relocate or of plaintiff in seeking to prevent relocation.  
The third Gruber prong is the availability of “realistic, substitute visitation arrangements, which will adequately foster an ongoing relationship between the child and the non-custodial parent.”  Defendant proposes that Kaylee spend summers, the Christmas vacation, and the long school vacations in the spring and the fall with plaintiff.  Surely, this arrangement will not adequately foster an ongoing parental relationship.  On its face it may seem as good and realistic as can be achieved under the circumstances.  But it is not the ongoing relationship that this child should expect and to which the parents committed when they married and when the child was born.  They made a commitment for Kaylee’s entire childhood.  Defendant has now chosen to relocate and renege on that commitment to have two interested parents in her life constantly and consistently.  Defendant should have reviewed the entire situation before precipitously making plans.  Her life should have been planned around the child’s life.  With more effort and creativity, she could have structured a situation where her desire to remarry and the need to provide for adequate visitation could co-exist.  
Under the present circumstances, the proposed move will not adequately foster an ongoing relationship between Kaylee and plaintiff.  Defendant proposes that plaintiff have custody in the summer.  Although there was minimal testimony on this point, plaintiff is a bricklayer.  In this area of the country, bricklayers’ busy season is normally in the summer, and Kaylee’s time with her father may be more limited.  Certainly, if there is relocation, any custody arrangement with Kaylee should be with plaintiff in the winter months and with plaintiff in the summer months and vacation periods.  If defendant works at home and/or works part-time, there is no reason why she cannot travel to Pennsylvania once each month in the winter for long weekend visits with Kaylee, in addition to the long holidays. This would allow for more constant contact with Kaylee and both parents.  Defendant has places to stay if she visits Pennsylvania frequently.  Plaintiff has no such place in Tennessee. The proposed arrangement is not adequate and realistic under the circumstances.
Defendant has not proved that the relocation will substantially benefit both mother and child, nor has she proven the availability of realistic, substitute visitation arrangement to foster an ongoing relationship between Kaylee and her father.  Defendant has not proved that the proposed relocation is in the best interest of Kaylee.  Relocation must be denied.

RALPH P. HART,

	Plaintiff

vs

REGINA J. HART,

	Defendant

IN THE COURT OF COMMON PLEAS FOR THE 26TH JUDICIAL DISTRICT, MONTOUR COUNTY BRANCH, PENNSYLVANIA
CIVIL ACTION - LAW

CASE NO: 62 0f 2001  

ORDER

	AND NOW, this 19th day of June 2001, defendant’s Motion to Relocate is DENIED.  If defendant continues to plan to relocate outside of this jurisdiction, prior to doing so she shall request a timely hearing before the court to establish an appropriate custody arrangement and schedule.

		BY THE COURT

		_________________________________ 
		HONORABLE THOMAS A. JAMES, JR., J.