ELISE M. (CRAWFORD) WELLIVER

	Plaintiff
vs

JAMES E. CRAWFORD
		Defendant

IN THE COURT OF COMMON PLEAS FOR THE 26TH JUDICIAL DISTRICT, COLUMBIA COUNTY BRANCH, PENNSYLVANIA

CIVIL ACTION - CUSTODY

CASE NO:  435 OF 1990

APPEARANCES:
FRANKLIN E. KEPNER, JR., ESQUIRE, Attorney for the Plaintiff
THOMAS LEIPOLD, ESQUIRE, Attorney for the Defendant

February 21, 2001.  JAMES, J.

FINDINGS OF FACT, DISCUSSION, AND OPINION

FINDINGS OF FACT

1.	Plaintiff and defendant were married on July 2, 1977; separated in 1990; and were divorced by court order dated January 7, 1991.

2.	The parties are the parents of two children, to-wit: Justin J. Crawford, born February 26, 1979, and Jessie M. Crawford, born September 21, 1987.  Jessie is the minor child who is the subject of this case.

3.	By stipulated court order dated October 23, 1991, as amended by stipulated order dated April 20, 1993, plaintiff was granted primary physical custody of the children.  Defendant was granted partial custody of the children on alternating weekends, one evening each week, four weeks in the summer, and certain holidays.  The parties have had shared legal custody.

4.	In regard to Jessie, from the time of the order’s inception in 1991 until December 4, 2000, the custody arrangement proceeded smoothly and uneventfully.  The parties cooperated in the implementation of the order.  Defendant exercised partial custody of Jessie faithfully and regularly, in accordance with the order.  Although defendant did not exercise his full four weeks in the summer, he clearly spent a great deal of time with the child, and plaintiff cooperated to that end.  Defendant and his wife have regularly and consistently attended Jessie’s extracurricular activities over the years.

5.	By letter to defendant dated December 14, 2000, plaintiff informed defendant that she, her husband, and Jessie were relocating to Alabama.

6.	On December 19, 2000, defendant filed a “Petition for Emergency Relief and Modification of Custody”, which sought to prevent Jessie’s relocation and/or to place custody with defendant in the event plaintiff relocates.

7.	A hearing on defendant’s motion was held on February 14, 2001.  Plaintiff and defendant testified on behalf of themselves.  Jessie had testified earlier on January 19, 2001. The parties’ present spouses testified, as did Anthony Jost, president and CEO of the corporation which employs plaintiff and her spouse.  Mr. Jost had been an employee at Kawneer and knew the Wellivers in that context.

8.	Plaintiff is 42 years old and has been employed as a customer service representative for Summit Manufacturing since December 17, 2000.  Prior to that time she had a similar position at Kawneer in Bloomsburg for 20 years.  At Kawneer she made $45,000.00 and worked first shift.  At Summit she must relocate to Besemer, Alabama, with her husband (as set forth below).  She will work first shift and make about the same income as she did at Kawneer.   

9.	Plaintiff’s husband is Charles Walter Welliver, Jr., 41 years old.  They were married on August 2, 1991.  Mr. Welliver worked at Kawneer for 19 years on first shift as a manager.  In mid-2000 he voluntarily resigned from Kawneer after they eliminated his position.  Although Kawneer retained him, his chances for advancement were eliminated and his salary of $52,000.00 would be essentially frozen for three or four years.  Mr. Welliver secured employment immediately at Summit as a manager in its Hazelton facility.  His salary was $43,500.00 and he worked second shift, 3 p.m. to 11 p.m. plus some weekends.  In late 2000, Summit offered Mr. Welliver the plant manager’s job in Besemer, Alabama, at a salary of $62,000 plus incentives and a first shift position.

10.	Mr. Welliver’s move to Alabama was voluntary, not mandatory. Mr. Welliver’s new job represents an improvement in his income and chances for advancement.  He actually started the job on November 27, 2000.

11.	Plaintiff lives in the Foxtail development in the Bloomsburg School district, where Jessie has gone to school since the fall of 1999 when she entered sixth grade.  She is now in seventh grade.  She attended the Millville schools through fifth grade.  If she moves and lives with her father, she will attend the Central Columbia schools.  If she moves to Alabama, she will attend a larger middle school.

12.	Defendant is 45 years old and lives with his wife, Mary Ellen, to whom he has been married almost 6 years.  They live in rural Bloomsburg in the Central Columbia School District.

13.	Defendant is a car salesman.  His wife is a caseworker supervisor with CMSU.

14.	Although plaintiff and defendant communicate poorly or not at all, and although they unfortunately send messages to each other though Jessie, the custody of Jessie has worked well over the years.  Both plaintiff and defendant have been excellent parents to Jessie.  They have both been wonderfully active in her life

15.	Both Ms. Crawford and Mr. Welliver have been excellent stepparents to Jessie.  They have both treated her as a daughter, without trying to undermine the natural parents.  Jessie calls them Mom and Dad, respectively.  This is no reflection on her natural parents whom she also calls Mom and Dad.  She clearly loves her parents and her stepparents.

16.	Plaintiff and her husband have purchased a home in Alabama in a residential area similar to their present Bloomsburg neighborhood, only larger and more populous.  It is in the suburbs of Birmingmham, Alabama.

17.	Jessie’s proposed new school in Alabama is at least on par with the Bloomsburg schools.  

18.	Jessie is a delightful 13-year-old.  She does well academically in school and is active in many extracurricular activities.  She is bright, personable, and articulate.  She has visited Alabama and has expressed her wish to move to Alabama with her mother.  However, she had considered moving in with her father, but eventually settled upon making the move to Alabama.  She is torn since she clearly expressed equal love and affection toward both of the parties.

19.	The parties, in conjunction with their spouses, have done a wonderful job of raising Jessie.

20.	Jessie has no relatives in Alabama and has numerous family connections in the Bloomsburg area on both sides of the family.

21.	Plaintiff’s reasons for moving are legitimate.  Her husband has a better opportunity for mid-life employment and advancement.

22.	Defendant’s reasons for opposing the move are legitimate.  He wants to see his daughter on a regular basis as he has for ten years.

23.	Plaintiff proposes substitute partial custody for defendant as follows: seven (7) weeks during the summers, one (1) week at Christmas vacation, and five (5) days at Easter vacation.  Plaintiff agreed to pay transportation costs.   

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 February 14, 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.1

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, 714 (Pa.Super. 2000)(citing Gruber, 583 A.2d at 439-439).
The only benefit to mother and child that plaintiff has even partially proven is the economic benefit to plaintiff and her husband.  Moreover, the benefit is somewhat questionable since the parties voluntarily left good paying jobs at Kawneer to make this move.  Although the future economic benefits may be better, plaintiff has not proven that the economic benefits alone and/or in conjunction with other factors are significant enough to substantially improve the lives of mother and child.  In fact, several factors mitigate against relocation, including the network of friends and relatives that exists in Pennsylvania (there are none in Alabama); a major change of schools and friends for Jessie; the costs of transportation which will diminish the economic benefits; and the disruption of a custody arrangement with both parents and both stepparents that has so well served Jessie over the years.  Like all teenagers, she will continue to need regular support from all four of these adults.
Factually, this case is very much like the recent case of Maurer v. Maurer, supra.2  The Maurer court noted “[O]ur review of the record in this case leads us to conclude that the only improvement Mother established was an economic one.  Admittedly, many benefits flow from an increase in economic status.  However, that factor alone is insufficient to justify the relocation of the children in this case.” Id.  
Moreover, and very importantly, the substitute partial custody schedule proposed by plaintiff does not provide a plan that will sustain and foster a bond that has been created between Jessie and her father.  Summer visits and two short periods of time during the school year will create a totally different relationship between Jessie and her father, who has been regularly and consistently active in Jessie’s life.  This is of great concern for a young teenager who has obviously benefited to this point by the active participation of both parents in her life. “While the duty to fashion a substitute visitation plan ultimately lies with the trial court, the petitioning party must offer concrete evidence of the manner in which he or she will work to sustain and foster the bond between the child and the non-custodial parent.  The trial court cannot be expected to shape such a plan without sufficient evidence from the petitioner."  Id.  
Plaintiff has not proved that the relocation will substantially benefit both mother and child.  She has also not proved the availability of realistic, substitute visitation arrangements to foster an ongoing relationship between Jessie and her father.  Relocation must be denied.

ELISE M. (CRAWFORD) WELLIVER

	Plaintiff
vs

JAMES E. CRAWFORD
		Defendant

IN THE COURT OF COMMON PLEAS FOR THE 26TH JUDICIAL DISTRICT, COLUMBIA COUNTY BRANCH, PENNSYLVANIA

CIVIL ACTION - CUSTODY

CASE NO:  435 OF 1990

ORDER

	AND NOW, this 21st day of February 200, plaintiff is enjoined from removing the minor child Jessie Crawford from residing in Columbia County.  If plaintiff 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 partial custody schedule.
		BY THE COURT:

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