Child Custody, Visitation & Relocation

Child Relocation: Mother’s Petition To Relocate With Minor Child Is Denied

In the child custody/child relocation, family law case of Malinchak vs. Peterson, PICS Case No. 15-1035 (C.P. Lawrence, May 12, 2015) the Honorable John W. Hodge concluded that any benefit to mother’s relocating would be outweighed by the detriment to the child’s relationship with her father, and that equal custody was not advisable given father’s extensive commitment to his college education.  The court denied mother’s petition to relocate and father’s motion to modify custody.

Plaintiff Jordan F. Malincak and defendant Courtney Peterson are the natural parents of a minor child, Kira, born in 2012. Mother was initially given primary care of Kira and father was given partial custody on Monday and Wednesday evenings and overnights every Friday. In 2013, father was also given overnight visitation every Wednesday evening and every weekend and extensive summer and holiday visitation.

In 2014, father requested primary physical custody. Mother subsequently filed a petition to relocate with the child to Texas. The matters were consolidated.

Father, 23 years old, was a full-time college student living with his parents on whom he is financially dependent. He and mother dated for three years in high school before she became pregnant. They maintained a cordial relationship but their efforts were strained by mother’s marriage to Jeremy Mao.

The court said that in any custody proceeding, the paramount concern is the child’s best interests. It noted that a psychologist conducted a custody and psychological evaluation of the parties and opined that Kira’s best interests would be served by a 50-50 division of physical custody between parents. (READ MORE)

Regarding mother’s request to relocate, the court addressed the factors in 23 Pa.C.S.A.§5337(h). It found that Kira had a very strong relationship with both parties, who had been actively involved in parenting her and she would be aware of the drastic changes involved in relocating to Texas. The court expressed concern about the emotional impact she could face because of her very strong relationship with father and father’s family. It said summer and holiday visitation could not adequately preserve father’s present relationship with her.

The court found that Mao’s income was not sufficient to meet the family’s needs and the proposed relocation would enable him to work at his family’s restaurant with a corresponding substantial increase in wages.

The court found that mother’s desire to relocate was sincere, but other than improved financial stability, her life would not drastically change upon relocation. She would remain primary caretaker, completely dependent on Mao for support. Further, her desire to attend college could be realized locally. Father’s objections were also deemed sincere.

The court found that under 23 Pa.C.S.A.§5328(a), both parties encouraged and permitted contact between the other party and Kira, both were willing and able to care for her, both provided a stable and loving environment, and they lived very close to each other which facilitated custody transfer. Father had strong family support; mother’s support was her grandmother and Mao. Kira had a half-sibling and any custody arrangement had to foster that relationship. Both parties testified to poor communications between them but they had attended co-parenting counseling that helped for a short period of time. Father had one DUI but had attended the ARD program without further incident. Mother had no involvement with drugs or alcohol abuse. Both were in good physical and mental health.

Based on the statutory factors and C.M.K. v. K.E.M., the court concluded that mother’s request to relocate had to be denied, given Kira’s very well-established relationship with both parents. It said any benefit bestowed by the relocation would be outweighed by the detrimental impact suffered by limiting father’s relationship with Kira to summer/holiday visitation. The court was not satisfied that mother had exhausted reasonable alternatives to providing more financial stability for her family and that many of the additional benefits she referenced could be achieved locally.

Reference: Digest of Recent Opinions, Pennsylvania Law Weekly, 38 PLW 632 (July 7, 2015)

Filed Under: Child Custody, Child Relocation

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