BKM v. JAM 2012 PA Super 156

Trial court denied Mother’s petition for relocation to Sweden and awarded the parties shared physical child custody of the minor children if Mother resides in Montgomery County, Pennsylvania; however, if Mother resides in Sweden, the court ordered that Father was to have primary physical custody of the children. The children lived primarily with Mother in Sweden since 2010 while Father remained in the United States with his paramour.

The Superior Court’s analysis of and interpretation of section 5337(l) of the new Custody Act was a case of first impression. The Superior Court ruled that the trial court misinterpreted section 5337(l) when it refused to consider any evidence arising out of the time period from April 2010 forward, when Mother resided in Sweden with the children. The Superior Court stated that section 5337(l) prohibits the court from conferring a presumption in favor of relocation if the relocation occurs prior to the hearing; however, section 5337(l) still requires that the court consider all custody factors enumerated in section 5328 of the new Custody Act, focusing on the best interests of the children, even if the relocation occurred prior to the hearing. Therefore, the trial court erred in its interpretation of section 5337(l) as a matter of law when it refused to consider evidence relating to the custody factors during the time period Mother and the children resided in Sweden. The Superior Court vacated the trial court’s order and remanded with instructions to the trial court to consider the best interests of the children pursuant to sections 5328(a) and 5337(h), which shall include a weighing of the evidence of the children’s lives in Sweden, and the need for stability and continuity established by the children’s education, family life and community life in Sweden.