Lance J. Nelson, Esquire
Sheila Drewen-Mayer, Paralegal

A parent with primary child custody may move or change
schools as long as quality of life improves and realistic visitation arrangements are ensured

Being divorced and sharing custody of children is difficult. It can become even more complicated if the primary custodian wants to move out of state, or even to an adjacent county.

While the classical analysis of what is in the best interest of the child or children is usually the basis for these decisions, the 2003 appeal ruling in Bednarek v. Velazquez affirmed an additional standard called the Gruber analysis that may be applied in Pennsylvania.

Gruber v. Gruber was a 1990 case in which a primary custodial parent sought to move from Pennsylvania to Illinois with her three minor children. Gruber added three factors for the court's consideration in determining whether a custodial parent may or may not move or change schools. These factors are:

• Advantages to the quality of life for both the custodial parent and minor children as a result of the relocation;
• The integrity of both parents' motives;
• The availability of realistic visitation arrangements that would continue to foster the relationship between the minor children and non-custodial parent.

Historically, Gruber has been applied to both long and short distance moves between states or counties – but had been deemed inapplicable in a case involving a move within the same county.

The Case
In Bednarek v. Velazquez, Miriam Bednarek, the primary custodian of the parties' two minor children, planned to move from Honesdale, Wayne County, where both parents resided, to Peckville in neighboring Lackawanna County. Ex-husband Christopher Velazquez objected. Miriam was granted permission to move by the trial court using the Gruber standard of analysis, and Christopher was granted additional periods of custody to compensate for the added distance between their homes. During the school year, Miriam was to have primary custody with Christopher having partial physical custody one evening a week and every other weekend. During the summer, Christopher had primary custody of the minor children while Miriam had partial physical custody one night a week and on alternating weekends. The plan split holidays and vacations evenly.

Christopher appealed claiming that Miriam had failed to satisfy the standard for relocation set out in Gruber.

The Result
The Superior Court's review of the trial court's record indicates that Miriam's move to Peckville in an adjacent county was permissible and in accordance with the Gruber standards. Miriam's efforts to improve her education and career path also allowed her to pick up the minor children at the close of the school day. Neither child opposed the move. In addition, Christopher, himself, had moved recently. Although the parents' hostility and animosity were noted, the court concluded that where their minor children were concerned their motives were sincere. And, with the new custody plan, Christopher will have little difficulty continuing his relationship with his minor children. In this particular case, the trial court had not abused its discretion in continuing the custody order and permitting Miriam to move.

Also in Bednarek v. Velazquez, the Superior Court granted the trial courts discretion in whether or not to use the Gruber analysis in cases involving intra-state relocations.

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