IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

 

CIVIL ACTION-FAMILY DIVISION

 

 

SHANNON SIMS-LEWIS                        :

Plaintiff                                                      :

                                                                   :

          v.                                                       :                            No. 2012-20088

                                                                   :

MICAH LEWIS                                         :

Defendant                                                  :

                                                                   :

 

ORDER

 

AND NOW, this 11th day of April, 2012, after thorough review of the record and careful consideration of the parties’ testimony and exhibits submitted during the hearing held April 5, 2012, Mother’s Petition to Relocate is respectfully DENIED. Father shall secure a residence suitable for overnight visitation with the Child no later than ninety (90) days from the date of this Order. In the event Father fails to secure a suitable residence within the allotted time, Mother shall have the right to petition this Court to revisit the relocation issue.

 

 

BY THE COURT:

                    ____________________________, J.

             CHARLES T. JONES, JR.

 

 

Cc: Robert Keys, Esquire

Caprice Hicks Bunting, Esquire

IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

 

CIVIL ACTION-FAMILY DIVISION

 

 

SHANNON SIMS-LEWIS                        :

Plaintiff                                                      :

                                                                   :

          v.                                                       :                            No. 2012-20088

                                                                   :

MICAH LEWIS                                         :

Defendant                                                  :

                                                                   :

 

APPEARANCES:

 

Robert Keys, Esquire                                                    For Plaintiff/Mother

Keys & Burkett

 

Caprice Hicks Bunting, Esquire                                   For Defendant/Father

 

OPINION BY JONES, JR., J.

Before this Court is Mother’s Petition to Relocate. For the reasons set forth herein, we deny Mother’s Petition.

 

1. I.                  FACTUAL & PROCEDURAL HISTORY

 

Mother and Father are parents of Corra Lewis, seven (7) years of age (hereinafter referred to as “Child”). Mother currently resides in Lebanon and is employed part-time as a web designer by Core Homes, Inc., a home decor company based out of New York City, NY. Mother currently earns approximately $40,000 annually working for Core Homes. Mother’s salary will increase $10,000 if she is able to relocate to New York and work full-time in the New York office. Mother’s boyfriend of two years, Paul Taggert, resides in Brooklyn. Mother seeks to relocate to Brooklyn to live with Paul and work full-time at Core Homes. Mother and Paul testified that they are considering marriage in the future, but they are not engaged at the present time.

Father works full-time as a sous chef at the catering department at Elizabethtown College. Father earns approximately $27,000 annually. Father resides in Mount Joy in an apartment he shares with Mother’s brother. Father has resided in his apartment for approximately two years, but testified that he has been looking for a new place to reside so that he can exercise overnight visitation. Father indicated that he has been accepted to an apartment complex in Mount Joy and can move in as early as April 15, 2012. Father testified that the reason he has not moved already is because of his financial circumstances and that he was waiting on the disposition of Mother’s Petition to Relocate.

The parties have been operating under a custody agreement since August 2009. The custody arrangement provides that Father exercises visitation two (2) nights a week and on alternating weekends. As part of the custody agreement, Father is prohibited from exercising overnight visitation with the Child at his residence since is it located above a bar and Father’s roommate smokes in the apartment. Father exercises the majority of his overnights with the Child, but stays at the Child’s maternal grandmother’s house in Manheim when staying overnight with the Child. The Child attends Cornwall Elementary School and is involved in activities such as soccer and girl scouts. Mother has family in the Lebanon/Lancaster area, including the Child’s maternal grandmother, whom she has a very close relationship with.

On February 1, 2012, Mother filed a Notice of Proposed Relocation, indicating that she intends to move to Brooklyn, New York on or about June 10, 2012. Thereafter, Father filed a Counter-Affidavit Regarding Relocation, indicating that he objected to the Mother’s Proposed Relocation. A hearing was held before this Court on April 5, 2012, on the issue of relocation. Both parties were represented by counsel at the hearing and provided testimony to the Court. The matter is now ripe for disposition.

1. II.               DISCUSSION

 

A relocation can only occur if “every individual who has custody rights to the child consents to the proposed relocation” or the proposed relocation is approved by the court. 23 Pa.C.S.A. §5337. In determining whether to grant a proposed relocation, a court must consider ten (10) factors set forth in Section 5337, giving weighted consideration to those factors which affect the safety of the child. 23 Pa.C.S.A. § 5337(h). Although the burden of establishing that the relocation will serve the best interest of the child is on the party proposing the relocation, each party has the burden of “establishing the integrity of that party’s motives in either seeking relocation or seeking to prevent the relocation.” 23 Pa.C.S.A. § 5337(i)(1)-(2).

The relocation factors are as follows:

(1)  The nature, quality, extent of involvement and duration of the child’s relationship with the party proposing to relocate and with the nonrelocating party, siblings and other significant persons in the child’s life.

 

(2)  The age, developmental stage, needs of the child and the likely impact the relocation will have on the child’s physical, educational and emotional development, taking into consideration any special needs of the child.

 

(3)  The feasibility of preserving the relationship between the nonrelocating party and the child through suitable custody arrangements, considering the logistics and financial circumstances of the parties.

 

(4)  The child’s preference, taking into consideration the age and maturity of the child.

 

(5)  Whether there is an established pattern of conduct of either party to promote or thwart the relationship of the child and the other party.

 

(6)  Whether the relocation will enhance the general quality of life for the party seeking the relocation, including, but not limited to, financial or emotional benefit or educational opportunity.

 

(7)  Whether the relocation will enhance the general quality of life for the child, including, but not limited to, financial or emotional benefit or educational opportunity.

 

(8)  The reasons and motivation of each party for seeking or opposing the relocation.

 

(9)  The present and past abuse committed by a party or member of the party’s household and whether there is a continued risk of harm to the child or an abused party.

 

(10)      Any other factor affecting the best interest of the child.

 

23 Pa.C.S.A. §5337(h).

Based on an analysis of the relocation factors, this Court finds that Mother’s proposed relocation should be denied since Mother failed to establish that the relocation serves the best interest of the Child. Initially, we would like to note that factors four (4), relating to the Child’s preference, and nine (9), relating to abuse, were not weighed because they are irrelevant and/or no relevant testimony was presented. Specifically, the Child is only seven (7) years old and is not mature enough to make a reasoned decision as to her preference. Moreover, this Court did not allow the Child to testify as it could potentially traumatize the Child. There was no testimony that either party or a member of the party’s household committed abuse. Thus, neither factor was given weight in this Court’s analysis.

We find that while the Child has a good relationship with each parent, the nature, quality, extent of involvement and duration of the Child’s relationship with Mother outweighs the same with Father. The testimony presented indicates that Child’s visitation with Father occurs at the Child’s maternal grandmother’s house since the parties agreed that overnight visitation at Father’s residence is prohibited. Father resides with Mother’s brother in an apartment situated above a bar. Father does not exercise all of his visitation with Child, which is largely attributed to his place of residence. The testimony demonstrated that Mother is more informed of the Child’s daily routine and activities. Although it is clear that Father enjoys a good relationship with his daughter, this factor weighs slightly in favor of Mother given the fact that Father must exercise visitation at Child’s maternal grandmother’s house and the fact that he does not exercise the full visitation to which he is entitled. In addition to the Child’s relationships with Mother and Father, we consider the fact that the Child’s relationship with her maternal grandmother is significant since she provided daycare for the Child from birth until the time the Child entered school. Child also has other members of Mother’s family that reside in the area whereas the Child does not have family that resides in New York.

Secondly, we find that Mother failed to establish that the Child’s physical, educational and emotional development will be substantially enhanced by the relocation. While there was evidence produced indicating that the school in Brooklyn is a very good school, there was little to no testimony regarding the Child’s current schooling. However, this Court is familiar with the schooling in the Lebanon area, particularly Cornwall Elementary, where the Child attends. While it is not the job of the Court to produce such testimony, the Court notes that the school district where the Child currently attends is a very good school.

Additionally, we find that the impact on the Child’s physical and emotional development will be severe if Mother is able to relocate. The lifestyle endemic to New York City would be a tremendous change for the Child from her rural upbringings in Lebanon. Child would be living in a small apartment with Mother and boyfriend, and Child’s room does not have a door. While Mother testified that the school in Brooklyn has similar activities to those the Child participates in now, this Court finds that the negative impact of a relocation substantially outweighs the fact that there are similar activities. Mother has no family in New York and only has one friend there, who is the Child’s godmother. Furthermore, Mother testified that the Child was emotionally distraught over the parties’ divorce and that she was nervous about the relocation proceedings. We see no reason to upset the Child’s life any more than what has already been done. Thus, this factor does not weigh in favor of relocation.

Third, the feasibility of preserving the relationship between Child and Father through suitable custody arrangements is very slim. New York City is approximately three (3) hours away, either by train or car. Given the current custody arrangement, Father is prohibited from keeping the Child overnight at his current residence. If Mother relocated, Father would only be able to take the Child for longer periods of time; thus, Father would need to find a suitable residence to keep the Child overnight. While potentially the custody arrangement could be altered to give Father longer periods of visitation to make it logistically possible, the financial circumstances of the parties pose a significant hurdle. The parties testified that they both are suffering financial hardships. Father currently makes approximately $27,000 a year, and Mother makes approximately $40,000 a year. A one-way train ticket from Elizabethtown to New York City is approximately $51.00, and gas prices are nearly at $4.00/gallon. Mother testified that if she relocates, her salary will increase to approximately $50,000 a year as a full-time employee. While Mother’s salary will increase if she relocates, so will her cost of living. Currently, Mother’s parents pay her mortgage and credit card bills. Simply put, the parties cannot afford to pay for the transportation of the Child from New York to Elizabethtown and back on a regular basis. Given the fact that Mother seeks to relocate, we do not believe it would be fair to assess any transportation costs to Father. Moreover, Father testified that he would not be able to financially afford to travel to New York on a regular basis to see the Child. Accordingly, this factor does not weigh in favor of allowing the relocation.

We find that there is no established pattern of conduct of either party to promote or thwart the relationship of the Child and the other party. Neither party presented testimony that the other attempts to thwart the relationship of the Child and the other party. Unfortunately, it does not appear that either party attempts to promote a relationship with the Child and the other parent. What is more troubling is that Father does not appear to be doing anything to promote his own relationship with the Child. We strongly encourage Father to do so. Regardless, this factor does not weigh in favor of or against the relocation.

Next, we find that the relocation will enhance the general quality of life for Mother because Mother will become a full-time employee with Core Homes and will receive a financial benefit when her salary increases to $50,000 a year. We note that in addition to the salary increase, Mother’s employer does not offer insurance benefits and Mother’s cost of living will also increase. For instance, Mother’s boyfriend testified that his rent in Brooklyn for a two bedroom apartment is approximately $1,775/month. Thus, it is unclear whether there will be a financial benefit once cost of living is considered. In addition, Mother did not present testimony as to any jobs she applied for in the Lebanon area and the salaries of those positions. Nonetheless, the relocation will benefit Mother emotionally since she will be residing with her boyfriend and not making a considerable commute to work. We also find that Mother will have more job security if she relocates because Mother’s employer wants her to relocate in order to remain a full-time employee. Alan Bram, President of Core Home, testified that he could not guarantee that she can remain a full-time employee if she does not relocate. Thus, this factor weighs in favor of the relocation.

We cannot say that the Child will receive the same emotional benefit as Mother would if the relocation were approved. Although the Child will be with Mother, the Child will be away from her Father, friends, family and other familiar surroundings. As previously mentioned, it is unclear whether Child’s life will be enhanced based on an educational opportunity. Thus, we do not find that the testimony indicated that the Child’s quality of life will be enhanced if the relocation were permitted.

Lastly, we find that Mother’s primary motivation for seeking the relocation is to reside with her boyfriend. While we believe that Mother’s testimony regarding her career is credible, Mother failed to show that she made an effort to find a job in the central Pennsylvania area. This Court believes that Mother’s employment with a growing company is a fruitful endeavor, but Mother failed to establish that a relocation to New York would serve the best interests of the Child. This Court is not convinced that a relocation would benefit the Child considering her family, friends, school, etc. are located in Lebanon, Pennsylvania. Despite Father’s lack of motivation to financially advance himself, we do not find that Father has any motivation for opposing the relocation other than the fact that he wants to maintain a relationship with the Child. We believe Father plays an integral part in the Child’s life and encourage him to not only maintain a relationship with the Child, but to build on that relationship. As part of building his relationship with the Child, we believe it is crucial that Father finds a suitable residence of his own so that he can exercise overnight visitation and the Child can have her own room in his residence. Should Father fail to do so within three (3) months of this Order, Mother may petition the Court to revisit the issue of relocation. Accordingly, we deny Mother’s Petition to Relocate. An Order will be entered consistent with the foregoing.