Relocation in the Age of On-Line Relationships.
One of the least pleasant tasks to lawyers who do custody work is advising the client that a planned relocation to support a new intimate relationship may not get off the proverbial runway. Yesterday’s decision in Leytrick v. Leytrick shows the pitfalls of any distant relocation arising out of a new and growing intimate relationship.
The Leytricks married in 2010 and their union produced children ages 7 and 9. The parties separated in 2022 although they don’t seem to agree on just when that event occurred. Mother has had primary custody. She works 20 hours a week as a nurse. Father has had custody on an odd schedule but it comes down to 2 days a week
Father struggles. Unemployed at the time of the hearing, he has had an affinity for beer that at times reached 12 cans a day. Recognizing that his world was falling apart he completed a two-week in-patient sobriety program. Six months later he was the subject of a Protection from Abuse Order. The trial court noted that Father struggles with anxiety and depression; a fact unearthed during his treatment in March 2022. Father has been involved in the lives of his kids but it seems his problems with alcohol and mental health issues have occupied the front seat while his kids have sat in the back.
On these facts, most lawyers would suggest that a relocation away from some of this madness might be a benefit to the kids. The Court denied the relocation but did so noting concerns about whether Father was going to move past his mental health problems.
From reading the opinion it seems to come clear that three factors sank what looked like a fairly strong case going in. The first is the fact that both parties and their children are deeply involved with large and supportive families in Western Pennsylvania where the case was based. Mother’s goal was to relocate the children with her to Kansas City, Missouri. The attraction of that locale arises from a relationship that mother formed with Kansas City resident Jason Atkinson. The trial opinion doesn’t lean heavily on the fact that Mom identified Atkinson on-line and went to visit him just as Father was leaving rehab in March 2022. The testimony was that unless Father went to rehab Mother threatened to leave with the kids for their safety. When an impaired parent complies with treatment requests, it does not play well in court that the other parent starts searching for a new relationship while treatment is in progress.
Then we have the court’s interview with the children. These kids were not specific but they seemed quite clear that Kansas City is a kind of 21st century Oz where everyone is happy and you can do things there that cannot be done anywhere else. Missouri has things either built or in progress that Pennsylvania lacks; things like roller coasters and pickleball. The kids were quite down on their Father, because of the way he treated their Mother yet they did not seem to profess any fear of him, despite some of his conduct while inebriated.
Mother’s testimony is probably what torpedoed her claim. Realize that the trial overflowed with family members on both sides all of whom lived in physical proximity to the children’s Mercer County home. But despite that, Mother offered that she did not see a move 850 miles southwest would significantly affect Father’s relationship with these elementary school children. After all, they could speak and visit electronically. If Mother thought her Protection from Abuse order was a factor, the facts show it was based on a shoving incident and yielded a six month order that did not include the children as protected individuals.
If there was a bright star in Mom’s case it was her Missouri fiancé. The Court found him persuasive and sincere. But this trial came only a year after the long distance relationship began and while the couple reports that their visits had been great, the fact is that families on holiday do blend more easily than what occurs when the two families (fiancé’s and Mother’s) actually start occupying the same house on a daily basis.
One of the problems inherent in almost any relocation case like this is the number of variables. In some cases, a parent wants to leave another and resume living with friends and family at the ancestral home. But Leytrick presents problems that involve having to advocate a move to a place unfamiliar to the relocation parent. Mom is offering testimony about a hypothetical job, a hypothetical home in a hypothetical school district supported by hypothetical day care. She has never lived there, and all of her prognostications are built on a relationship that may show promise but is based on electronic communication and a few happy visits. The inevitable question that comes from the opposing counsel or the Court is: “So you move 950 miles away and you enroll in a program to get a Missouri license as a nurse and you and the children move in with Jason Atkinson and his family. What is your plan if the relationship fails?” All too often the answer from the witness is an unsatisfying: “I will make it work.” Buried deep in the judicial brain is another question: “In 2010 when you married Mr. Leytrick, did you foresee that your relationship with him would end as it did in 2022 with him in rehab and your kids in the danger you have portrayed?” The only answer that works is that you have learned a lot in the 12 years that elapsed between your marriage and separation. Unfortunately, when that answer is evaluated in a setting where the kids are professing that life in a place they don’t know is infinitely better than life where they are, the relocating parent looks as if he/she has an agenda built on hope rather than facts. We have also seen courts zero in on the fact that there is only an engagement and not a marriage. Another challenging question is what consideration did the fiancé give to moving to Pennsylvania with his children.
These can be wrenching cases for the lawyer advocating the move. Your client seems emotionally smart and fully capable of navigating relocation and establishing children in a new environment. The fiancé is a solid citizen. In preparing the case you like them both and you like your case. Yet, you know that it is likely the court will pointedly ask you whether what you are selling is a series of hunches; about remote relationships; schools, housing, employment, day and medical care. Then, while you are noting that Missouri is a sophisticated place and full of resources, the judge is looking at a courtroom filled with local family members who are in court because they love these children. They share the same concerns as the judge. Will it work? Will it be better for the kids to be 1,000 miles away from these family members and their father?
This is what makes relocation cases; even well planned cases, so difficult. Another factor in this case is Father’s concession of the error of his ways and pursuit of therapy. Courts spend enormous energy trying to get parties of all kinds; civil, criminal and juvenile to see the error of their ways and fix their lives. In this case, the court has a Father who might be actually on the mend. That is not to excuse any of his aberrant behavior. But courts can and should pause to ask: “What becomes of the parent left behind?” Lest the reader think that I have fallen for Father’s case, I should add that but for all of the collateral family members in the courtroom, I suspect that this relocation may have been granted despite the “hunches” inherently part of almost every relocation case. Relocation was not only going to take the children away from father and his family but maternal family members living locally as well.
Clients seeking relocation to pursue a new relationship are often motivated a bit by guilt. In this case Mother may well feel guilty that she stayed in a marriage and subjected her kids to some clearly destructive behavior on the part of her husband. She sees redemption for herself and a new path for her kids in Jason Atkinson and Missouri. Judges are attuned to these concerns. But there is no dividing the “babies” in relocation cases. They either stay or go. And in this case they stay with the approval of the Superior Court.
The appellate decision has appended to it an admirable trial court opinion by Mercer County Judge Ronald Amrhein, Jr. It’s 45 pages but for the client seeking a consult related to making an out of state move, it is also a lesson in what courts struggle with in a relocation case that proposes to move children far away.
Leytrick v. Leytrick,
