Goldmeier v. Lepselter

ROSALYN B. BELL, Judge. The legal question presented to us by the parties in this appeal is whether the divorced spouse, who seeks to relocate the children, has the burden of proof to demonstrate that the move is in the best interests of the children. That is not, however, the question we need to address. The real question is, under all the circumstances, what is in the best interests of the children?

Our answer, in short is: the burden is on the trial judge to weigh the relocation and all its ramifications, together with all the other information he or she can garner, to decide this very difficult question. There is, however, a larger social question presented by the facts in this case. How can such a relocation be accomplished without pain to the children and both parents? Our answer is, it cannot.

This answer is the same regardless of whether the children relocate with the primary custodial parent or there is a change in custody. A superficial answer to this larger question might be, “maintain the status quo, don’t relocate,” but the social and economic reality is that people must and do move. According to the latest United States Department of Commerce study of Geographical Mobility, one out of every ³⁰³ six persons moved during the 12-month period from March, 1986 to March, 1987. Relocation is visited with various results on the children of divorced couples, regardless of which natural parent moved or whether the children themselves moved or not.

By and large, moving is not a totally positive experience for children. See P.M. Raines, Joint Custody and the Right to Travel: Legal and Psychological Implications, 24 J.Fam.L. 625 (1985-86). 1 In her arti ³⁰⁴ cle, Raines discusses the diverse ways that courts, legislators, legal commentators and parents have responded to the problem of parent mobility. She notes that there is no one method utilized in solving the problems created by joint custody in a mobile society. Often the arguments are distilled down to a conflict between the parent’s constitutional right to travel versus the best interests of the child.

We might hope that those who are on the brink of divorce will understand that in all probability one or both parents will move during the children’s minority, making the sharing of the daily lives of those children impossible for one of the parents. It has been said there are no winners in a divorce. That can never be more clear than in this case. Edward Goldmeier and Beth Goldmeier (now Lepselter) were divorced by a judgment of the Circuit Court for Baltimore County in 1988.

We know little of their life together prior to the divorce, beyond the fact that two sons were born of the marriage, Joshua, now aged 10, and Daniel, now seven. Incorporated into the divorce judgment was the parties’ marital settlement agreement, which provided in part that the parties “agree to adopt joint custody, and hereby designate wife as primary physical custodian____ The parties also agree to adopt the practices and principles of joint legal custody____ In the event that either party anticipates a move from the immediate Baltimore, Maryland, area then that Party shall notify the other at the earliest practical time and the issue of custody shall be reopened.” The parties lived up to that sharing of responsibility, addressing both the physical and emotional needs of the children in the best sense of the word. Despite the hostility this present action has generated, neither could, nor did, say the other was not a fit and proper person to have custody of the boys. The closest they came was Mr. Goldmeier’s contention that on several occasions Ms. Lepselter was inflexible and screamed at him in front of the children.

Ms. Lepselter claimed that Mr. Goldmeier — although he had the children a minimum of three weekends out of four, every ³⁰⁵ Wednesday evening and substantial vacations in the winter and summer — did not take care of the children’s real needs, but instead concentrated on “fun” activities. In late January, 1990, Mr. Goldmeier was told by Ms. Lepselter that she, Mr. Lepselter, the Lepselters’ baby daughter and Mr. Goldmeier's two sons planned to relocate to Dallas, Texas, where Mr. Lepselter had obtained employment. On February 1, 1990, Mr. Goldmeier filed petitions seeking an ex parte injunction and a change in custody of the boys. An ex parte order was signed on February 2, 1990 and renewed on February 9, 1990.

The orders enjoined Ms. Lepselter from moving the two boys from Baltimore County. An emergency hearing was held on February 22 and 23, 1990. At the conclusion of a two-day evidentiary hearing, the trial judge issued an oral opinion. That opinion, as modified, enjoined Ms. Lepselter from removing the Goldmeier children to Dallas until she received permission from the Circuit Court for Baltimore County, although the children could still reside with her in Baltimore County.

If Ms. Lepselter moved out of Baltimore County, the children would live with Mr. Goldmeier. In addition, the court stated it intended to appoint counsel to represent the children to investigate and recommend the relief that should ultimately be granted, i.e., “whether the children should relocate to Dallas with their mother with reasonable visitation to their father, or whether it is in the best interest of the children that they remain here in the Baltimore County area and not be relocated to Dallas.” The court issued an order on March 6, 1990 which enlarged the scope of the oral opinion of March 2, 1990 by ordering the Support and Custody Division of the Circuit Court for Baltimore County to “investigate the defendant’s plans for her family’s change of residence and furnish this Court with a written report and recommendation on the issue of whether the defendant’s plans are in the best interests of Joshua and [Daniel] Goldmeier____” ³⁰⁶ Ms. Lepselter chose to remain in the Baltimore County home with the children for the remainder of the school year. Mr. Lepselter made the move to Texas because he was committed to do so. After the filing of Johnson v. Domingues, 82 Md.App. 128 , 570 A.2d 369 (1990), which held that relocation did not warrant a change of custody absent evidence that the move would adversely affect the children, Ms. Lepselter moved for a reconsideration.

A hearing was held on May 31, 1991 after the court-ordered reports were received from Philip Dantes, the children’s attorney, and the Support and Custody Division. At the May 31, 1990 hearing, at which argument was heard from counsel for both parties, Mr. Goldmeier’s petition to enjoin the move to Dallas was denied and a visitation schedule was agreed upon for the ensuing year. Mr. Goldmeier then sought a reconsideration which was also denied. On October 22, 1990, the court issued an order denying Mr. Goldmeier’s petition for change of custody and dissolving the injunction granted earlier.

Mr. Goldmeier has appealed, contending, that in this case, the parents of the minor children have joint custody. The agreement incorporated into the divorce decree states: “In the event that either party moves from the immediate Baltimore, Maryland[,] area ... the issue of custody shall be reopened.” He contends that the relocation constitutes a change in circumstances and the relocating parent must demonstrate that the move is in the best interests of the children. THE CHANGES IN CASE LAW A complicating factor in this case is that, while it was pending, the law with respect to custody and relocation was still evolving. When the injunction in the case now before us was first sought, the leading cases in the field were Sartoph v. Sartoph, 31 Md.App. 58 , 354 A.2d 467 , cert. denied, 278 Md. 732 (1976), and Jordan v. Jordan, 50 ³⁰⁷ Md.App. 437, 439 A.2d 26 , cert. denied, 293 Md. 332 (1982).

Sartoph dealt with the effect a change must have before it dictates a change of custody. Jordan dealt with the effect a change of location must have before it dictates a change of custody. In Sartoph, 31 Md.App. at 67 , 354 A.2d 467 , we said: “The custody of children should not be disturbed unless there is some strong reason affecting the welfare of the child. To justify a change in custody, a change in conditions must have occurred which affects the welfare of the child and not of the parents.

The reason for this rule is that the stability provided by the continuation of a successful relationship with a parent who has been in day to day contact with a child generally far outweighs any alleged advantage which might accrue to the child as a result of a custodial change. In short, when all goes well with children, stability, not change, is in their best interests.” The issue of relocation came before this Court in Jordan, where the parent with physical custody sought to relocate to South Africa. Despite vigorous objection from the other parent, we held that the contemplated move was not, in and of itself, a sufficient change in circumstances to require a change in custody. In Jordan, 50 Md.App. at 447 , 439 A.2d 26 , we quoted with approval the case of Hoyt v. Boyer, 5 F.L.R. 2135, 2135-36 (N.Y.Fam.Ct., Sullivan County, 1979), modified, 77 A.D.2d 685 , 429 N.Y.S.2d 792 (1980), where it was stated: “ ‘Relocating as a result of remarriage, employment and the like cannot of itself render a parent to whom custody has been granted unfit and thereby constitute the basis for a modification of custody.' ” (Citation omitted.) After the injunction in the instant case was issued on March 2, 1990, our opinion in Johnson was filed.

In Johnson , the spouse with physical custody sought to relocate, ironically, to Texas. Using the precedent established by Sartoph and Jordan, we again held that the move, by itself, ³⁰⁸ did not warrant a change in custody, absent evidence that the move would have an adverse effect on the children. No additional analysis was needed or warranted. Johnson, 82 Md.App. at 136 , 570 A.2d 369 .

In the instant case, the trial court entered its ruling on May 31, 1990, recognizing that certiorari had been granted in Johnson on April 11, 1990, but without knowing that the Court of Appeals had also granted a stay of our mandate in that case. While the appeal in the case now before us was pending, the Court of Appeals on August 21, 1991 reversed our holding in Johnson. Domingues v. Johnson, 323 Md. 486 , 593 A.2d 1133 (1991). It also decided McCready v. McCready, 323 Md. 476 , 593 A.2d 1128 (1991).

With the reversal of Johnson, and the opinion in the companion McCready case, the focus in relocation cases has now shifted. Prior to Domingues and McCready , the trial court was not required to conduct a full evaluation of the “best interests” of the child, absent a showing that there would be an adverse effect on the child. It was up to the parent seeking a change in custody as a result of relocation to demonstrate the specific harm that would result to the child. Jordan 50 Md.App. at 443 , 439 A.2d 26 .

This is no longer the test. Instead, the Court of Appeals has now held that the relocation itself is a sufficient “change in circumstances" to trigger a trial judge’s full evaluation of the future best interests of the child, weighing in the balance the move and any other relevant circumstances. Thus, the issue is no longer who has the burden of proving the specific harm flowing from the move. Instead, each litigant has the burden of establishing that he or she is a fit and proper person to parent.

Each bears the burden of persuading the trial judge that he or she is best suited to serve as the primary custodian. The trial judge’s role is not so much to ferret out specific harm, but to evaluate the child’s best interests. In McCready , the Court of Appeals stated that the reason for requiring a change of circumstances is to keep a liti ³⁰⁹ gious or disappointed parent from merely bringing up and relitigating an earlier decision in the hopes of finding a court sympathetic to his or her position. McCready, 323 Md. at 481 , 593 A.2d 1128 .

The Court of Appeals said: “[T]he question of