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Pennsylvania Bar Association QuarterlyOctober, 2005

The 25th Anniversary of the 1980PennsylvaniaDivorce Code: A Symposium-Part II

*153 TWENTY-FIVE YEARS AFTER KRAMER vs. KRAMER: IS PENNSYLVANIA READY FOR CHILD CUSTODY REFORM?

Mark Momjian [FNal]

Philadelphia and Delaware Counties

Member of the Pennsylvania Bar

Copyright © 2005 by Pennsylvania Bar Association Quarterly; Mark Momjian

TABLE OF CONTENTS Page

INTRODUCTION: THE LEGACY OF KRAMER vs. 153KRAMER

COMPETING VIEWS ON CHILD CUSTODY RE- 155FORM: S.B. 74 OR H.B. 888

RELOCATION NATION: THE IMPACT OF GRUBER 157

v. GRUBER

WILL PREFERENCE GET DEFERENCE UNDER 160

THE PROPOSED LAW?

CONCLUSION: THE FUTURE OF 160

PENNSYLVANIA'S CHILD CUSTODY LAW

INTRODUCTION: THE LEGACY OF KRAMER vs. KRAMER

From the moment Columbia Pictures released Kramer vs. Kramer during the final weeks of 1979, family lawyers andfamily court judges were up in arms. Despite its status as a cinematic blockbuster and rave reviews from both critics andmoviegoers, the film's legal deficiencies and omissions were roundly denounced by both bench and bar. Much of the criticism was directed at the dramatic courtroom showdown, toward the end of the film, in which divorced parents (playedby Dustin Hoffman and Meryl Streep) battle for custody of their 6-year-old son. The late Dr. Doris Jonas Freed-thenChair of the American Bar Association's Family Law Section and a national authority on child custody disputes—told a

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reporter just two days after Kramer's debut: "In 1979 it amazed me to hear the lawyer tell the father, 'If you want custody, we must go for the jugular.'" [FN1] Other legal observers castigated Hollywood for its unrealistic and misleadingportrayal of childcustody litigation. [FN2]For example:

• At the time of Kramer's release, although the tender-years doctrine had been abrogated by statute or courtdecision in most states, including New York, the family lawyers (played by Howard Duff and Bill *154 Moor)tried the case as if the doctrine were still in effect. The father went into the custody trial believing he had to provehis ex-wife was seriously unfit. [FN3]

• Over the objection of the father's lawyer, the judge admitted a report from the mother's therapist and deniedany opportunity to cross-examine the therapist.

• Almost no attention was paid to the father's role as the child's primary caretaker for the 18 months before thetrial. There was almost no testimony on what effect a change in physical custody would have on the child's stability and continuity of care.

• No mental health expert was ordered by the judge (or retained jointly by the parties) to conduct an independent custody evaluation. Moreover, sharedcustody was not explored as a viablealternative to sole custody.

• The child had no say in the final adjudication. Child preference played no role in the decision-making process. The judge did not interview the child in camera.

Substantive criticisms aside, family lawyers and judges literally cringed after watching the courtroom scenes inKramer. Director Robert Benton portrayed the judicial system as brutal and uncaring. Ted Kramer's lawyer was a classicpitbull, boring in on the mother with questions like: "How many lovers have you had-permanently? More than three,less than thirty-three-permanently?" Joanna Kramer's lawyer was snide and patronizing, describing the father's new jobas "moving down the ladder of success." Even the trial judge comes off poorly in the film. Played by quintessential character-actor Howland Chamberlain, the judge lost control of the courtroom, failed to admonish the lawyers during theircross-examination, and mechanically applied the wrong legal standard in making his final ruling. [FN4]

Despite its unfair portrayal of family lawyers and judges, Kramer is regarded as a cinematic masterpiece. [FN5] Atthe Academy Awards ceremony in the spring of 1980, Kramer captured the Oscar for Best Picture, with individualawards to Hoffinan (for Best Actor), Streep (for Best Supporting Actress) and Benton (who won two Oscars, one for BestDirector and one for Best Screenplay). [FN6]

What is the legacy of Kramer! The film succeeds to this day in measuring the depths of hostility associated with custody disputes. No other film in the history of American cinema better conveys the emotional toll on parents fighting overcustody of a child. At the same time, Kramer resonates with viewers because the theme of parental sacrifice to ensure achild's happiness is a timeless one.

Child custody practice has changed dramatically since Kramer's release. Case patterns involving the likes of Ted andJoanna Kramer seem almost routine in comparison with the realities of contemporary family law. The significant increase in nonmarital cohabitation over the past generation-together with advances in biotechnology that have profoundlytransformed patterns of reproduction—have fundamentally changed the child custody landscape.

In the 1950s, married couples constituted 80 percent of all households in the United States. By the beginning of the21st century, they were less than 51 percent. Married couples with children represent just 25 percent of all householdstoday. For the first time ever, there are more single-parent households than those with a married couple and children. [FN7]

In states like Pennsylvania, there has been an explosion in third-party custody litigation over the past 25 years. Biolo-


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gical parents no longer are the only parties who battle for child custody. Third parties have joined the fray in significantnumbers, achieving standing because they are in loco parentis (i.e., they assume the rights and responsibilities of parenthood). These third parties include former *155 domestic partners, stepparents, aunts and uncles, and ex-boyfriends andgirlfriends. Sometimes theyare neighbors, friends, andothernonrelatives.

Unlike a generation ago, custody cases involving grandparents and great-grandparents are common in Pennsylvania,which has an enormous older population, one of the largest in the country. One of every five Pennsylvanians is age 60 orolder. Pennsylvania has the third highest percentage of older people in the United States and the sixth largest population.By the year 2020, Pennsylvania's 60-and-older population is expected to represent 25 percent of the total-more thanthree million people. Philadelphia alone is home to the largest percentage of senior citizens among the ten largest metropolitan areas in the country.

Intergenerational relationships play a critical role in many children's lives. Nearly 195,000 grandparents inPennsylvania have minor grandchildren living in their homes, and 75,000 to 80,000 grandparents serve as primary caregivers for children whose birth parents cannot raise their children, permanently or temporarily, because of illness, incarceration, substance abuse, poverty, neglect, or death. [FN8]

The manifold increase in child custody litigation over the past generation is a reality of modern-day practice, hardlyenvisioned at the time of Kramer's release. According to the 2003 Caseload Statistics of the Unified Judicial System ofPennsylvania, close to 42,000 custody cases were filed in the Commonwealth in 2003, over 10,000 of them in Philadelphia County alone. Many of these cases are brought by pro se litigants. In Kramer, the father paid his lawyer $15,000in 1979. In today's legal market, parties can pay tens of thousands of dollars in legal fees for private representation inchild custody litigation. Indeed, it is not unusual today for some custody cases involving complex issues and appeals tocost over $100,000. [FN9]

The harsh economic realities of child custody litigation have forced parties to consider alternative forms of disputeresolution—such as mediation and collaborative law—instead of the courtroom and the financial and emotional hardshipfrequently associated with the traditional, adversarial system.

The reproductive revolution since the filming of Kramer has had a considerable effect on contemporary child custodypractice. Today, a child can potentially have five different parents, namely a sperm donor, an egg donor, a birth mother,and the sociological parents who raise the child.

The demographic and economic realities post-drawer have brought child custody reform advocates to center stage.Although visions of reform can vary substantially, the fact that Pennsylvania is on the verge of overhauling its substantive law on child custody is highly anticipated and long overdue.

COMPETING VIEWS ON CHILD CUSTODY REFORM: S.B. 74 OR H.B. 888

Relevant Factors

Introduced on January 31, 2005, Senate Bill 74 is a proposal to overhaul Pennsylvania's custody statute. In additionto new sections on standing, relocation, and counsel for the child, the bill sets forth factors that a court must consider inevaluating a child's best interest:

(1) Which party is more likely to encourage and permit frequent and continuing contact between the child and


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the other party?(2) Theparental duties performed by eachparty on behalfof the child.(3)The need forstability and continuity inthechild's education, family life, and community life.(4) The availability of extended family.(5) The child's sibling relationships.(6)Thepresent andpastabuse committed by a party or member of theparty's household.(7) The well reasoned preference of the child,basedon the child'smaturityandjudgment.(8) The attempts of a parent to turn the child against the other parent.(9) Which party is more likely to maintain a loving, stable, consistent, and nurturing relationship with the

child adequate for the child's emotional needs?(10) Which party is more likely to attend to the daily physical, emotional, developmental,*156 educational

and special needs of the child?(11) The proximity of the residences of the parties.(12) Each party's availability to carefor the child or ability to make appropriate child carearrangements.(13) The level of conflict between the parties and the willingness and ability of the parties to cooperate with

one another.(14) The historyof drug or alcohol abuseof a partyor member of a party'shousehold.(15) The mental and physical condition of a partyor member of a party'shousehold.(16) Any other relevant factor.

The bill also requires each party to submit a parenting plan for the care and custody of a child in all contested custodyproceedings. Theparenting plan- which would notbeadmissible as evidence bythe otherparty-must include:

(1) The schedule for personal care and control of the child, including parentingtime, holidays, and vacations.(2) The education and religious involvement, if any, of the child.(3) The health care of the child.(4) Childcare arrangements.(5) Transportation arrangements.(6) A procedure by which proposed changes, disputes, and alleged breaches of the custody order may be adju

dicated or otherwise resolved through mediation, arbitration, or other means.(7) Any matter specified by the court.(8) Any other matter that serves the best interest of the child.

The bill is silent on when the parties must submit their parenting plans. Must a party submit a parenting plan shortlyafter the case is filed? Or will the parenting plan be submitted closer to trial? If S.B. 74 becomes law, the PennsylvaniaSupreme Court may have to amend the Rules of Civil Procedure governing custody actions to address the issue of whenparenting plans must be submitted to the court.

Appointment ofGuardian Ad Litem/Counsel

S.B. 74 would codify and expand the court's discretion to appoint a guardian ad litem or counsel for the child. To theextent a guardian ad litem is appointed, he or she is authorized to investigate and report to the court information relevantto the custody or visitation proceeding. The court-appointed counsel would not be subject to examination unless he or shesubmits a report or makes a recommendation to the court. The bill also provides for the appointment of a guardian adlitem or counsel for the child in cases involving substantial allegations of child abuse. Finally, under the proposed legislation, the court may appoint counsel to represent the child if the court determines that the appointment will aid in resolving the issues in the custody or visitation proceeding. Counsel appointed by the court for the child would not be subject


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to examination unless counsel testified in the matter.

Counsel Fees

S.B. 74 delineates the circumstances under which a court may award reasonable interim or final counsel fees, costs,and expenses. The bill would allow the court to weigh all relevant factors including, but not limited to, the good faithconduct of the parties, the relative financial resources of the parties, including the ability of a party to participate in custody litigation, the need of a party to engageexperts, and the best interest of the child.

Rebuttable Presumption ofJoint Custody

House Bill 888 was referred to the House Judiciary Committee on March 14, 2005. Cosponsored by 38 members ofthe House, the bill would create a rebuttable presumption in Pennsylvania that an award of joint legal and physical custody is in the best interest of the child. This presumption would be rebuttable only by clear and convincing evidence ofthe following:

(1) A parent's criminal conduct as set forth in the statute;(2) Abuse of the child by a parent;(3) Neglect of the child by a parent; or(4) A parent'sdemonstrated unwillingness to participate in the upbringing of the child.

In addition, the bill establishes a guideline parenting plan in cases where the parents fail to devise such a plan orwhere the trial court concludes that an agreement between the parties is unreachable. The plan rotates children on aweekly basis, with one parent having the first and third weeks of a month, and the other parent having the second andfourth weeks. Moreover, transportation is to be divided *157 equally between the parents, who must exchange physicalcustody at a neutral meeting point, not at either parent's home. The plan also establishes the sharing of major holidaysand special occasions (such as the children's birthdays), and entitles each parent to two weeks of vacation time with thechildren. Finally, the bill fixes a penalty in the event a parent denies the other parent access to the children for whateverreason. If the parent who is in noncompliance refuses to provide make up time within 30 days of the date of denial of access and the other party is forced to take the denial issue to court for resolution, the denying party will be responsible forall court costs and counsel fees.

If H.B. 888 becomes law, it would represent a major shift in Pennsylvania child custody practice and procedure. Currently, in a custody dispute involving biological parents, there is no presumption that custody should be awarded to a particular parent. Each case is decided on its own set of facts and must be analyzed within the best interest framework. Under the proposed law, joint legal and physical custody would be ordered by the trial court unless it found that the presumption that joint custody was not in the best interest of the child was rebutted by clear and convincing evidence.

RELOCATION NATION: THE IMPACT OF GRUBER v. GRUBER

In civil litigation, there are few judicial tasks that involve the application of greater sensitivity and discretion than theadjudication of child custody disputes. Indeed, family lawyers are fully aware that in contested custody cases the courtcannot make an adjudication that promotes the child's physical, emotional and spiritual well-being without a full andcomplete record that takes intoaccountall factors bearing on the child'sbest interestand permanentwelfare.

Custody cases involving a proposed relocation of a child are among the most challenging for parents, their lawyers


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and the court. [FN 10] S.B. 74 does more than codify existing case law, including Gruber v. Gruber [FN11] (lead relocation case in Pennsylvania establishing three-prong test) and Plowman v. Plowman [FN 12] (requiring relocation hearingto be held either before move or-under exigent circumstances-within a reasonable later time); it would establish procedures for both the party proposing to relocate and the party objecting to the proposed relocation, and it sets forth relevantfactors that a court must consider in evaluating a child's best interest.

S.B. 74 would require the petitioner to provide the respondent with notice of 60 days before the date of the proposedrelocation. If this is impossible because the petitioner could not reasonably have known of the relocation in sufficienttime to comply with the 60-day notice requirement-and it is not reasonably possible to delay the date of the relocation inorder to comply with the 60-day notice requirement-the bill would require notice within 10 days after the petitioner became aware of the proposed relocation.

In addition to giving reasonable notice, the petitioner mustprovide relevant information to the respondent:

(1) The address of the intended new residence.(2) The mailingaddress, if not the same as the addressof the intended new residence.(3) The home telephone number of the intended new residence.(4) The name of the new school district and school.(5) The date of the proposed relocation.(6) The reasons for the proposed relocation.(7) A proposal for a revised custody or visitation schedule.(8) Any other information that the petitioner deems appropriate.(9) A warning to the nonrelocating party that if the nonrelocating party does not file with the court an objec

tion to the proposed relocation within 30 days after receipt of the notice, that party shall be foreclosed from objecting to the relocation.

If a timely objection is filed by the respondent, he or she may seek a temporary or *158 permanent order to preventthe relocation by filing a petition for special relief in the nature of a writ of ne exeat under Rule 1915.13 of thePennsylvania Rules of Civil Procedure. If an objection is not timely filed, it shall be presumed that the respondent hasconsented to the proposed relocation. If the respondent fails to object-but later petitions the court for review of the custodial arrangements—the court shall not accept any testimony challengingthe relocation.

Absent court approval, the pending legislation is clear that no relocation shall occur without the consent of every individual who has custody or visitation rights to the child. If no objection is filed by the respondent, the petitioner mayfile an affidavit stating that he or she provided notice and that no objection was filed. The affidavit may also include apetition to confirm the relocation and for modification of any existing custody or visitation order-as well as a proposedorder containing the information that must be included with the notice of the proposed relocation. At this time, the billmakes the filing of this affidavit discretionary.

Under the proposed law, the party seeking to relocate has the burden of establishing that the relocation will serve thebest interest of the child. Each party has the burden of establishing the integrity of his or her motives in either seeking therelocation or seeking to prevent it. In determining whether to grant a proposed relocation, the court shall consider thesefactors:

(1) The nature, quality, extent of involvement and duration of the child's relationship with the party proposingto relocate and with the nonrelocating party, siblings and other significant persons in the child's life.

(2) The age, developmental stage, needs of the child and the likely impact the relocation will have on the


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child's physical, educational and emotional development, taking into consideration any special needs ofthe child.(3) The feasibility of preserving the relationship between the nonrelocating party and the child through suit

able custody arrangements, considering thelogistics and financial circumstances of theparties.(4)The child's preference, taking into consideration theage and maturity of thechild.(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.(6) Whether the relocation will enhance the general quality of life for the party seeking relocation, including,

but not limited to, financial or emotional benefit or educational opportunity.(7) Whether the relocation will enhance the general quality of life for the child, including, but not limited to,

financial or emotional benefit or educational opportunity.(8) Thereasons and motivation of eachpartyfor seeking or opposing the relocation.(9) Any other factor affectingthe best interestof the child.

Cases Granting Relocation

Billhime v. Billhime [FN 13] (mother granted permission to relocate from Montour County to Florida; returning to anetwork of family and friends, opportunity to increase salary and acquire benefits with flexible job schedule, relevantfactors).

Landis v. Landis [FN 14] (mother granted permission to relocate intrastate from York County to Erie County; domestic violence history, father's conviction for indirect criminal contempt of PFA order, job opportunity, and extensive familyconnections in proposed area of relocation, relevant factors).

Goldfarb v. Goldfarb [FN 15] (mother granted permission to relocate from Montgomery County to Israel; parties' original intention to move to area of proposed relocation, fact that mother was isolated from friends and family, and recommendation of court-appointed custody evaluator, relevant factors).

Geiger v. Yeager [FN 16] (mother granted permission to relocate from Lawrence County to North Carolina; stagnantlocal economy and employee benefits, includingtuition reimbursement, relevant factors).

Arnold v. Arnold [FN17] (mother granted permission to relocate from Wyoming County to Canada; remarriage andgreater economic security relevant factors).

Bednarek v. Velazquez [FN18] (mother granted permission to relocate intrastate from Wayne County to LackawannaCounty; in cases involving intrastate relocation, determination of whether to use Gruber analysis left to trial *159 court'sdiscretion; effort to improve education and career path relevant factor).

B.K. v. J.K. [FN19] (father granted permission to relocate intrastate from Lycoming County to Allegheny County;new job relevant factor).

Bayer v. Schake [FN20] (mother granted permission to relocate from Allegheny County to Virginia; engagement andjob opportunity relevant factors).

Burkholder v. Burkholder [FN21] (mother granted permission to relocate from Monroe County to Florida; domesticviolence history and intention to improve quality of life relevant factors).

Ferdinand v. Ferdinand [FN22] (mother granted permission to relocate from Luzerne County to Michigan; remar-


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riage relevant factor).

Zoccole v. Zoccole [FN23] (mother granted permission to relocate intracounty in Mercer County; remarriage relevantfactor).

Anderson v. McVay [FN24] (mother granted permission to relocate from Allegheny County to North Carolina; newjob relevant factor).

Mealy v. Arnold [FN25] (mother granted permission to relocate from Mercer County to North Carolina; engagementand job transfer relevant factors).

Perrott v. Perrott [FN26] (mother granted permission to relocate intrastate from Allegheny County to DelawareCounty; job promotion relevant factor).

Beers v. Beers [FN27] (mother granted permission to relocate intrastate from Lehigh County to Chester County; separation of half siblings relevant factor).

Zalenko v. White [FN28] (mother granted permission to relocate intrastate from Wayne County to Bedford County;remarriage and job termination relevant factors).

Gancas v. Schultz [FN29] (mother granted permission to relocate from Allegheny County to New Jersey; remarriagerelevant factor).

Vineski v. Vineski [FN30] (mother granted permission to relocate from Bradford County to Tennessee; weak localeconomy and mother's medical problems relevant factors).

Kaneski v. Kaneski [FN31] (mother granted permission to relocate from Beaver County to New York; remarriage andjob termination relevant factors).

Lee v. Fontine [FN32] (mother granted permission to relocate from Wyoming County to Washington State; job opportunity relevant factor).

Cases Denying Relocation

Johns v. Cioci [FN33] (mother denied permission to relocate from Chester County to Virginia; mother failed to meether burden that proposed relocation would substantially improve quality of life for her and child; mother also failed to establish non-economic advantages, particularly in comparing school systems, in case involving academically-gifted child;mother had no ties to proposed area of relocation, and increased distance from father and his extended family would havebeen detrimental to child).

Kirkendall v. Kirkendall [FN34] (mother denied permission to relocate from York County to California; mother wasassigned to FBI office in Sacramento; although 5-year-old child stated his preference to relocate with mother, trial courtgave it little weight due to child's age and immature reasoning; both parents were deemed fit, but child had more extended family in Pennsylvania; father worked construction and argued that he would be unable to exercise custody duringthe summer months due to his work schedule).

Dranko v. Dranko [FN35] (mother denied permission to relocate from Allegheny County to Georgia; mother failed todemonstrate that children's lives would substantially improve; mother was engaged to be married to Georgia resident;


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court-appointed custody evaluator testified thatproposed move was not inbestinterest of children).

Marshall v. Marshall [FN36] (mother denied permission to relocate from Clarion County to South Carolina; motherfailed to demonstrate that children's lives would substantially improve; mother's proposal for virtual visitation via Internet not realistic substitute plan for visitation).

Graham v. Graham [FN37] (mother denied permission to relocate from Venango County to Florida; no proof thatquality of child's life would improve).

Myer-Liedtke v. Liedtke [FN38] (mother denied permission to relocate from Montgomery *160 County to California;alternative visitation plan unacceptable).

Maurer v. Maurer [FN39] (mother denied permission to relocate from Delaware County to Florida; failure to investigatejob-trainingor employment opportunities in Pennsylvania).

Baldwin v. Baldwin [FN40] (mother denied permission to relocate from Indiana County to South Carolina; no effortmade to seek employment in Pennsylvania after job was terminated).

White v. White [FN41] (mother denied permission to relocate from Westmoreland County to California; no proofthatquality of child's life would improve).

WILL PREFERENCE GET DEFERENCE UNDER THE PROPOSED LAW?

Under Section 5303(a)(1) of the Domestic Relations Code-in making an order for custody or partial custody-thecourt shall consider the preference of the child as well as any other factor legitimately impacting the child's physical, intellectual and emotional well-being. [FN42] Although the expressed wishes of a child are not controlling in custodycases, they do constitute an important factor that must be carefully considered in determining a child's best interest. Thechild's preference must be basedon good reasons, and the child'smaturity and intelligence must be considered.

In McMillen v. McMillen, [FN43] the Pennsylvania Supreme Court held that where both households are equally suit-able~and there is no dispute as to the fitness of either parent-the child's preference to live with one parent will tip theevidentiary scale in favor of that parent. In McMillen, an 11-year-old son testified that he had a clear preference to livewith his father. He stated that his stepfather frightened him and that his mother did nothing to prevent it. The trial courtdetermined that the child's preference was supported by good reasons, and on appeal that finding was not disturbed usingan abuse-of-discretion standard.

In Myers v. DiDomenico, [FN44] the Pennsylvania Superior Court used the tip the scale analysis in upholding a custody award to the parent that the children preferred to live with in a case where both households were considered equallysuitable. In Myers, the trial court found that the 12-year-old daughter and 10-year-old son clearly expressed their preferences and reasoning for wanting to live with their father. Both children stated that they had lived with their mother sincetheir parents separated many years earlier, and that they now wanted the opportunity to live with their father. The recordbelow showed that most household factors were equal between the parents, and that both parents had a good relationshipwith the children. Despite this strong evidence, the trial court awarded custody to the mother. In reversing, the Court heldthat McMillen was controlling. Using evidence available from the trial court's decision, the Court ruled that applicationof the tip the scale analysis would have resulted in an award of custody to the father because both households were otherwise equally suitable and the children had expressed a clear preference to live with him. [FN45]


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If child custody reform passes in the General Assembly, will child preference still tip the evidentiary scale in caseswhere both parties are fit and where the child has a clear preference to live with one parent? The answer is unclear. S.B.74 enumerates child preference among the 16 factors a trial court must consider in deciding a custody case; however,there is no indication in the proposed legislation that a court is to assign more weight to child preference than to any other factor.

CONCLUSION: THE FUTURE OF PENNSYLVANIA'S CHILD CUSTODY LAW

In November 1999, the Joint State Government Commission's Task Force and Advisory Committee on Domestic Relations Law issued a comprehensive report recommending sweeping changes in Pennsylvania child custody law. The Advisory Committee was chaired by Judge Emanuel A. Bertin of the Montgomery County Court of Common Pleas. TheTask Force was chaired by Senator Stewart J. Greenleaf. [FN46]

*161 Almost six years later, despite the extraordinary work of the Joint State Government Commission, comprehensive child custody reform has not been passed by the Pennsylvania legislature. There is hope, however, that 2005 may bethe breakthrough year for child custody reform.

Senate Bill 74 is based on recommendations of the Joint State Government Commission. The bill is actively supported by the Pennsylvania Bar Association.

On September 19, 2005, the Pennsylvania Senate Appropriations Committee unanimously reported S.B. 74 to the fullSenate with certain technical amendments. The bill will be on third consideration when the Senate convenes on October17,2005.

Family lawyers in Pennsylvania are closely monitoring S.B. 74. If the bill becomes law, it will mark the second major reform in the Commonwealth's child custody laws in over a generation. [FN47] S.B. 74 not only will vastly improvethe procedures that govern child custody relocation cases, but will give parties, lawyers and judges a new and improvedframework for child custody law. Ultimately, the true beneficiaries of reform will be the minor children who are the subjects of the tens of thousands of custodycases filedeachyear in the Commonwealth.

[FNal]. B.A. 1983 Columbia College; J.D. 1986 Columbia University School of Law. Mr. Momjian is a partner in theFamily Law Department at Schnader Harrison Segal & Lewis LLP. He is co-author with Albert Momjian ofPennsylvania FamilyLawAnnotated (Thomson/West, 3d ed. 2005).

[FN1]. George Dullea, Child Custody: Jurists Weigh Film v. Life, N.Y. TIMES, Dec. 21, 1979, available at http://www.nytimes.com/packages/html/movies/bestpictures/kramer-ar.html.

[FN2]. For an excellent analysis of the legal flaws in Kramer, see Andrew I. Schepard, CHILDREN, COURTS ANDCUSTODY: INTERDISCIPLINARY MODELS FOR DIVORCING FAMILIES (2004). Chapter II of Schepard's book istitled: Kramer vs. Kramer Revisited: The Sole Custody/Adversary System Paradigm. A law professor at Hofstra University, Schepard argues that Kramer may well have had a significant influence on the rapid changes in child custody litigation over the past generation since the film "popularized and promoted the goals of gender equality in custody determinations and the notion that parents should forego legal advantage, put aside their anger, and reach their own agreementsin their child's best interests." Id. at 8. See also David Ray Papke, Peace Between the Sexes: Law and Gender in Kramervs. Kramer, 30 U.S.F.L. REV. 1199 (1996). A law professor at Marquette University, Papke examines Kramer's anti-


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legal sentiment in American popular culture, with special emphasis on how gender affects the legal inaccuracies ofthe film.

[FN3]. Under the tender-years doctrine, custody ofyoung children (below teenage) is awarded to the mother unless she isunfit. This doctrine ofmaternal preference was clearly in retreat atthe time ofKramer's release onDecember 19, 1979.

[FN4]. To review the third revised draft of the film's screenplay, go to: ht-tp://www.godamongdirectors.com/scripts/kramer.shtml.

[FN5]. See Vincent Canby, Kramer vs. Kramer: East Side Story, N.Y. TIMES, December 19, 1979, available at http://www.nytimes.com/packages/html/movies/bestpictures/kramer-re.html.

[FN6]. In total, Kramer has grossed over $100 million at the box office (despite having been produced for a relatively-modest $13 million). Ironically, Hoffman and Streep were not the first choices of the film's producers, who wanted Al Pacinoto play the role of Ted Kramer and Kate Jackson from Charlie's Angels to play the role of Joanna Kramer. Throughoutthe filming of Kramer, a great deal of tension existed between Hoffman and Streep. Hoffman was going through his owndivorce during the shooting of Kramer, and Streep, for her part, had recently undergone a personal tragedy, having losther fiance-the actor John Cazale~who had died from bone cancer.

[FN7]. Stephanie Coontz, MARRIAGE, A HISTORY (2005).

[FN8]. See Brief for Cheryl Hiller as Amici Curiae Supporting Appellee, Hiller v. Fausey, No. 197 MAP 2004 (Pa.2004), 2005 WL 1841248. I am indebted to the legal staff at Philadelphia's SeniorLAW Center for providing me with thestatistical information onolder Pennsylvanians used inthis article. Formore information, go to www.seniorlawcenter.org.

[FN9]. Using the Consumer Price Index inflation calculator on the Website of the National Aeronautics and Space Administration, spending $15,000 in 1979 is the equivalent of spending approximately $39,000 in 2004.

[FN 10]. Frank G. Adams, Comment, Child Custody and Parental Relocations: Loving Your Child From a Distance, 33DUQ. L. REV. 143 (1994); Sanford L. Braver, et al., Relocation of Children After Divorce andChildren's Best Interests:New Evidence and Legal Considerations, 17 J. FAM. PSYCHOL. 206 (2003); Elizabeth M. Ellis and Jonathan Levine,Conducting Psychological Evaluation in Relocation Cases, 15 AM. J. FAM. L. 286 (2001); and Judge Thomas A. James,Jr., Custody Relocation Law in Pennsylvania: Time toRevisit and Revise Gruber v.Gruber, 107 DICK. L. REV. 45 (2002).

[FN11]. 583 A.2d 434 (Pa. Super. 1990).

[FN 12]. 597 A.2d 701 (Pa. Super. 1991).

[FN 13]. 869 A.2d 1031 (Pa. Super. 2005).

[FN 14]. 869 A.2d 1003 (Pa. Super. 2005).

[FN 15]. 861 A.2d 340 (Pa. Super. 2004).

[FN 16]. 846 A.2d 691 (Pa. Super. 2004).

[FN 17]. 847 A.2d 674 (Pa. Super. 2004).


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[FN18]. 830 A.2d 1267 (Pa. Super. 2003).

[FN19]. 823 A.2d 987 (Pa. Super. 2003).

[FN20]. 799 A.2d 124 (Pa. Super. 2002).

[FN21]. 790 A.2d 1053 (Pa. Super. 2002).

[FN22]. 763 A.2d 820 (Pa. Super. 2000).

[FN23]. 751 A.2d 248 (Pa. Super. 2000).

[FN24]. 743 A.2d 472 (Pa. Super. 1999).

[FN25]. 733 A.2d 652 (Pa. Super. 1999).

[FN26]. 713 A.2d 666 (Pa. Super. 1998).

[FN27]. 710 A.2d 1206 (Pa. Super. 1998).

[FN28]. 701 A.2d 227 (Pa. Super. 1997).

[FN29]. 683 A.2d 1207 (Pa. Super. 1996).

[FN30]. 675 A.2d 722 (Pa. Super. 1996).

[FN31]. 604 A.2d 1075 (Pa. Super. 1992).

[FN32]. 594 A.2d 724 (Pa. Super. 1991).

[FN33]. 865 A.2d 931 (Pa. Super. 2004).

[FN34]. 844 A.2d 1261 (Pa. Super. 2004).

[FN35]. 824 A.2d 1215 (Pa. Super. 2003).

[FN36]. 814 A.2d 1226 (Pa. Super. 2002).

[FN37]. 794 A.2d 912 (Pa. Super. 2002).

[FN38]. 762 A.2d 1111 (Pa. Super. 2000).

[FN39]. 758 A.2d 711 (Pa. Super. 2000).

[FN40]. 710 A.2d 610 (Pa. Super. 1998).

[FN41]. 650 A.2d 110 (Pa. Super. 1994).

[FN42]. 23 Pa.C.S. §5303(a)(l).

[FN43]. 602 A.2d 845 (Pa. 1992).

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

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[FN44]. 657 A.2d 956 (Pa. Super. 1995).

[FN45]. See also Johns v. Cioci, 865 A.2d 931 (Pa. Super. 2004) (trial court abused its discretion by failing to give adequate consideration to child's expressed preference to live with mother; child was 12-years-old, academically gifted, andexcelled at school); Wheeler v. Mazur, 793 A.2d 929 (Pa. Super. 2002) (reversing trial court for assigning little weight toclear preferences of pre-teen children, who expressed desire to maintain status quo); Bovard v. Baker, 755 A.2d 835 (Pa.Super. 2001) (trial court abused its discretion by failing to interview or take testimony from children, where custodialpreferencemay tip evidentiary scale).

[FN46]. The November 1999 custody report of the Joint State Government Commission is available at: ht-tp://jsg.legis.state.pa.us/CUSTODY.PDF.

[FN47]. On June 15, 2004, Pennsylvania adopted the Uniform Child Custody Jurisdiction and Enforcement Act, a lawthat standardizes procedures in interstate child custody cases. Effective August 15, 2004, the UCCJEA replaced the Uniform ChildCustody Jurisdiction Act, whichhad beenthe law in Pennsylvania since 1977.76Pa.B.A.Q. 153

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