International Custody Fight – Contempt of Agreement Bolsters Statutory Factors in Father’s Win

The appeals in R.M. v. S.B., No. 2879 EDA 2012 (July 25, 2013) arose from an international custody dispute, in which the father resided in France and Mother resided in Montgomery County, Pennsylvania. At an earlier stage of the child’s life, the child lived in France with the father for several months in 2010. Subsequently, Mother and Father reached an agreement, which was ratified by a New Jersey court, in which the child would live with mother for most of the year and spend school breaks with Father in France. The agreement specifically provided that if mother should violate the agreement, custody of the child would revert to Father. This agreement was incorporated into a New Jersey custody order, which was registered in Pennsylvania, with New Jersey relinquishing its jurisdiction.

In March 2012, Father filed a petition for contempt, alleging that Mother would not renew the child’s passport in an effort to thwart his custody. She also refused to accept his emails and refused Father’s request to spend a week’s vacation with the child in the U.S., which was also required in the custody agreement. Mother claimed that communicating with Father was so distressing to her that she required therapeutic counseling but did her best to comply with the order. The trial court disagreed, awarding primary physical and shared legal custody to Father in France. Mother appealed, arguing that the trial court failed to consider the 16 statutory custody factors and placed too much weight on the factors relating to contempt.

The Superior Court affirmed the decision, finding that the trial court’s Section 1925 opinion was replete with evidence to support its findings. The Court focused particularly on the mother’s inability to support the child’s relationship with the father over a long  period of time. The Superior Court held that the change of custody was not granted solely to punish Mother’s contempt, which would abrogate the principle enunciated in Rosenberg v. Rosenberg, 504 A.2d 350, 353 (Pa. Super. 1986). Rather, the Court held that the change in custody served the best interests of the child under the statutory factors. The Court held that the relocation factors were irrelevant because the case was not commenced as a relocation case.