In BKM v. JAM (2012 PA Super 156, July 31, 2012), the Superior Court reviewed a custody order in which the Montgomery County court had imposed an equally shared custody arrangement if Mother did not relocate to Sweden, or primary custody to Father if Mother did relocate. The trial court’s order was issued after a hearing, in which the court disregarded evidence offered by Mother pertaining to the children’s environment and connections with Sweden.  The Superior Court vacated and remanded.

The mother and father in this case, along with their children, resided for many years in Pennsylvania. In 2009, Mother was diagnosed with ulcerative colitis, which required several surgeries in 2009. Mother planned to have the fourth surgery in Sweden in 2010. With father’s permissions, Mother took the children to Sweden for her fourth surgery, which was delayed. While they were in Sweden, Father informed Mother that he wanted to divorce. Mother returned to the U.S., alone, to discuss reconciliation, but learned that Father was seeing another woman. Mother returned to Sweden and refused to allow the children to visit the U.S.

Father initiated custody proceedings, which resulted in the children having a four week visit with their father in the summer of 2011. During their visit, Father filed an emergency petition to keep the children in the U.S., which was denied. A custody hearing ensued, resulting in an order that would allow Mother to have shared physical custody in Montgomery County or partial custody if she returned to Sweden. The court refused to hear testimony about the children’s schools, housing, family life or environment in Sweden, based upon the court’s reading of Section 5337(l).

Section 5337(l) provides that the relocating parent bears the burden of proof that relocation is in the children’s best interests; and provides that each parent bears the burden of proving good motive for requesting or opposing relocation. The trial court refused to hear testimony about the children’s “new status quo” in Sweden because doing so might give an advantage to Mother who had engaged in self-help by taking the children to Sweden and refusing to return them. The Superior Court disagreed, holding that disallowing such evidence was an “extreme sanction on relocations that occur prior to a full expedited hearing.”  The Superior Court held that the trial court could not conduct a thorough review of the statutory criteria for custody and relocation without considering the children’s environment in Sweden.