Pennington v. Marcum

Dissenting Opinion by

Justice CUNNINGHAM.

I respectfully dissent from the result of the majority while at the same time applaud much of what Justice Noble says in her opinion. Her narrative history is much needed in bringing to light a growing concern in child custody and visitation issues in our ever increasingly mobile society. I also agree with her analysis of the proper standard of proof in these kinds of cases.

However, I part ways with the majority because of the lack of analysis given by the trial court to the issue of relocating a child who has long had a close relationship with both her mother and her father. This deficiency is in large part caused by our own failure to provide guidance to trial judges in addressing this daunting problem. Therefore, I would vacate and remand for further proceedings consistent with this dissenting opinion.

We can no longer afford the simplistic approach to arbitrarily allow parents to relocate to distant places simply because the child is doing fine in the primary physical custody of that parent. There is a tremendous amount of evidence which connects frequent residential moves of children of separated parents to major problems in child adjustment. The effects upon children being frequently relocated include lower academic performance and higher rates of problems with depression, conduct, and peer relationships. 1 We are not talking about moves by intact families where children usually cope and sometimes even thrive. Relocation by a divorced parent where the child is torn away from the mother or father is uniquely different.

In 1998, the prestigious American Academy of Matrimonial Lawyers took on the difficult problem of parental relocation and proposed a Model Relocation Act. The Act itself lists several factors that the trial court should consider before allowing the relocation of a child. 2 While many states have dealt with the relocation issue through legislation, others have given — as we should do here — guideposts to trial courts through their highest courts. 3

Of course, each jurisdiction is unique, but there are common factors running through all. The following are but a few of these common factors: (1) the age of the child; (2) the purpose of the move; (3) *773 the distance of the move; (4) the worthiness of the move for the child when balanced with any negative effects; (5) the improvement of the child’s standard of living; (6) the physical hardship of travel for the child on visitation with the non-custodial parent; (7) the presence or absence of extended family for the child at the new location versus the existing location; (8) the motivation of the noncustodial parent for objecting to the move (i.e., is it genuine concern for the child or simply a way of punishing the former spouse?); (9) whether the non-custodial parent has turned down career advancement opportunities by not moving away in order to stay close to the child; (10) the possibility and plausibility of the non-custodial parent following the child; and (11) the number of times the custodial parent has moved. 4

I search in vain to find attention given by the trial court to any of these key elements in its custody determination.

It is significant that this is a “joint custody” case and Justice Noble ably describes how that arrangement places more responsibility for child rearing on both parents than in a “sole custody” situation. Here, the non-custodial parent is legally entitled to be involved in all aspects of the child’s life, which is independent of the time actually spent in the child’s presence. The letter and spirit of Chalupa, a landmark case referred to by the majority, hovers over these relocation cases. Indeed, “a divorce from a spouse is not a divorce from their children,” especially in joint custody cases. 5 However, when the custodial parent moves far away with a child, an effectual “divorce” occurs between the child and the non-custodial parent.

The trial court in this case gave no treatment whatsoever to the contributing role of the father in making this child happy and a good student. There was no consideration of what would happen when this dual parenthood was cut asunder. The trial judge stated: “The court is not inclined to end a six year relationship of a child with a parent merely because that parent remarries and moves to a different location.” The essence of the trial court’s findings dealt only with uncontroverted issues; the parties never contested that both were good parents, or that the child had been with the mother for a very long time and was doing well. The trial court dealt solely with the relocation and its effects on the child. Yet the findings totally ignore the issue of the case.

The importance of having both parents engaged in the upbringing of children cannot be overemphasized. Reams of research material are available addressing the negative impact parental relocation has upon children. 6 If we are truly dedicated to placing the child’s best interest as paramount, then we must seriously rethink our current notions of adult freedoms and prerogatives. When a custodial parent decides to move a great distance, the noncustodial parent may no longer be deeply involved in the child’s life. The custodial parent has a choice — the choice not to move. The non custodial parent has no *774 choice and is not only helpless, but essentially stripped of his or her child. The child is also at the mercy of the custodial parent’s choice.

The majority refers to another relocation case that this Court decides today, which works in tandem with this one. Frances v. Frances, 266 S.W.3d 754 (Ky.2008). Not only are these two cases distinguishable, but the distinction between them is instructive. First of all, in Frances this Court affirms the Court of Appeals’ decision which relied heavily upon Brumleve v. Brumleve, 416 S.W.2d 345 (Ky.1967). That case provides the underpinning for this dissent: “[Custodial parents] should be given considerable latitude in choosing where they will live. But when this right is challenged by the former [spouse and parent] of the children, [the custodial parent] should offer some plausible reason for taking minor children out of the jurisdiction of the court to the prejudice of the visitation rights of the [non-custodial parent]. Mere whim is not enough.” Id. at 346 . In Frances , the trial court considered the issue of relocation as critical to its decision-making. The majority declared: “Though the trial court stated the relocation of the Appellant was a substantial factor in the custodial determination ... the record also indicates that the trial court placed significant weight on Haley’s strong relationship with her father, frequent interaction with the father’s extended family, and adjustment within the community.” Id. at 758 .

In my writing here, I do not opine that the trial court necessarily got it wrong in this case. However, I think there was insufficient consideration of the core is sue — the impact of the relocation upon the child. Or at best, there were insufficient findings and lack of a much needed analysis.

I am concerned that our Court passes up a golden opportunity today to lend much needed guidance to our trial judges, who continue to confront the problem before us without assistance from this Court or the legislature.

Therefore, I very respectfully dissent.

VENTERS, J., joins.

. See "Social Science and Children’s Best Interests in Relocation Cases: Burgess Revisited,” by Richard A. Warshak, Ph.D., 34 Fam. L.Q. 96 (2000-2001)

. See "Inertia and Inequality: Reconceptual-izing Disputes Over Parental Relocation,” by Merle H. Weiner, 40 U.C. Davis L.Rev. 1776 (2006-2007).

.Mize v. Mize, 621 So.2d 417 (Fla.1993); In re Marriage of Francis, 919 P.2d 776 (Colo.1996); Pollock v. Pollock, 181 Ariz. 275 , 889 P.2d 633 (Ariz.App. Div. 1, 1995); In re Marriage of Eaton, 269 III.App.3d 507, 207 Ill. Dec. 69 , 646 N.E.2d 635 (1995).

. Here, the custodial parent, Heather, has moved five times since she moved from Ash-land, Kentucky to Charleston, West Virginia in February of 2002, and apparently eight times since the entry of the Agreed Order in 2001.

. See Chalupa v. Chalupa, 830 S.W.2d 391, 393 (Ky.App.1992).

.For a rundown on the statutory or case law treatment of parental relocation divorce cases, see an article entitled, Relocation of the Custodial Parent: A State-By-State Survey, by David M. Cotter, Assistant Editor, Divorce Litigation, Volume 18, Number 6, June 2006.