What Happens If One Custodial Parent Seeks to Relocate ?
In Gruber v. Gruber, 400 Pa. Super. 174, 583 A.2d 434 (Pa.Super. 1990), the Court set forth the burden of production applicable when one custodial parent seeks to relocate:
When a custodial parent seeks to relocate at a geographical distance and the non-custodial parent challenges the move, the custodial parent has the initial burden of showing that the move is likely to significantly improve the quality of life for that parent and the children.
In addition, each parent has the burden of establishing the integrity of his or her motives in either desiring to move or seeking to prevent it.
The custodial parent must convince the court that the move is not sought for whimsical or vindictive reasons. Likewise, the non-custodial parent must show that the resistance to the move stems from concern for the children and his or her relationship to them.
The court must then consider the third factor discussed above, namely the feasibility of creating substitute visitation arrangements to ensure a continuing, meaningful relationship between the children and the non-custodial parent. Gruber, 583 A.2d at 440.
While Gruber was designed to assist trial courts in their evidentiary inquiry, Gruber did not disturb the burden of persuasion that fell upon both parties and ultimately rested upon the traditional concept of the best interest of the child. See Gruber, 583 A.2d at 437 ("Unless more direction is provided, the trial court is left without adequate guidance and of necessity may decide these cases on impressionistic and intuitive grounds.").
The burden of production enunciated in Gruber is unwieldy in the context of a scenario where no prior custodial order exists.
Neither parent should have a specific legal advantage when a trial court devises an initial custodial order.
One parent's intent to relocate is a factor a trial court should consider in rendering a decision but it certainly does not create a burden favoring the parent who does not intend to move.
Indeed, our Court has consistently held that prior to the formation of a custodial order, the parents stand on equal footing and the only burden carried by either of them is to establish what is in the best interest of the child. See Wiseman v. Wall, 718 A.2d 844, 846 (Pa.Super. 1998); Fisher v. Fisher, 370 Pa. Super. 87, 535 A.2d 1163, 1165 (Pa.Super. 1988).
Accordingly, prior to an initial custodial order, both parties share the burden of production and persuasion.