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Pennsylvania Divorce and Domestic Relations Blog

Two Factors Often Make a Parent’s Relocation Case

By Mark Ashton

In 1990 I recall lecturing to a group of lawyers about current custody law when someone handed me a copy of Gruber v. Gruber, a case decided days before setting forth a standard to allow one parent to relocate with the children far away from the other parent. 583 A.2d 434 (Pa. Super. 1990). It was a first case speaking to this subject rendered at a time when moms got custody and dads got “visits” (today, partial custody).

Over the past 35 years fathers have really stepped up in the custody arena and many divorce interviews with women have them saying: “He’s a good dad, just a lousy husband.” The trend toward shared (50/50) physical custody continues and that evolution has rendered many relocation requests by either parent “dead on arrival.”

When doing an interview with a parent who wants to move away, there are now ten statutory factors which a court needs to apply. 23 Pa. C.S. 5337. They all play in together but the central one that often tips the scale is Number 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.

It comes through loud and clear in Hepburn v. Ochoa, decided on September 29. The child is age 3. How long the parents were together is not in the record. Mom wants to move from Delaware County to Texas where she has family and a job offer. Dad owns a financial management business in Philadelphia. Young case (filed in 2025), young child (not yet in school). These facts almost guarantee denial of a distant relocation. But not here because it seems father and his anger are constant companions. His disparagement of mother, often coupled with threats, knows no bounds. In fact, he doesn’t really deny the words he utters to disparage his wife. His best defense is that the words have been “misconstrued” or “taken out of context.” The opinion by Judge Brandon Newman cheekily notes that the words of husband are tough to consider in any benign context.

This is what we can call “relocation by toxicity.” One or both parents loathe and demean each other in ways that cannot avoid damaging the child-especially pre-teens. Kids exposed to this often adopt similar language when provoked and are recruited to enter the fold of parental estrangement. When judges interview these kids to see what is their preference, that preference is often confined to: “Make them stop fighting.”

For some of these parents, custody is a chessboard game. “You want Saturday to be a dance class? I signed her up for softball.” “I am taking my vacation the week your parents booked to take her to Disney.”

Courts see this and swing toward a relocation they would otherwise deny. In some instances, both parents appear competent and lucid…..until you mention the other parent’s name. Then the paroxysm begins. At times, the root of the problem is a virulent disagreement about how to parent. Often, it is triggered by: “How dare you divorce me. I am the victim, not you.”

The other alarm bell is father’s testimony about his work. Men in particular have a tin ear for the interruptions that young children bring to domestic life. Mr. Hepburn was probably proud to tell the court these facts.

He owns his own business

He customarily works from 9:00-7:30

His work involves meeting with clients as far north as Scranton and west as Harrisburg. Each involves 4 hours of driving and then meeting time.

When cross examining fathers like this, I always made sure to have them repeat those terms. Then I would ask how they would manage a 3 year old on that schedule and watch them commit hari kari by responding: “I make my own schedule.” I have had surgeons and trial lawyers utter these words, as if the patient waits on the table or the judge sits in chambers while Dr. Bigshot waits in car line at day care or the diaper unexpectedly fills when we are packing to leave. If you are headed to Scranton for a breakfast meeting to discuss managing a $10 million 401(K) plan, a child coming down with the flu is tough to work into that schedule. The retort: “I’ll hire someone” is just another nail in the shared custody coffin, suggesting that anyone will do in that role.

If you want to defend against a relocation you need to present the two “As.”

You need to show you can be affable. And available to do the heavy lift of being a parent.  And don’t forget the nanny-cams may be catching all of it. So, smile.