Defying the trend merchants, the Court of Appeals in Cloutier v. Queen, (5/8/01), issued a 20-page relocation opinion that may seem to stand only for the proposition that in these cases the decisions will continue to be extremely fact-specific, and that the Court of Appeals will nearly always uphold the trial judge. The father and mother had originally agreed on a very specific and careful joint legal custody arrangement (parenting plan) with somewhat more time to the mother, which father apparently concededly gave her "primary physical" custody. The mother filed in court for permission to move the children to Pennsylvania, the father cross-filed for a change of custody, and the trial judge ended up denying both petitions, on the ground that the present two-parents-close-by arrangement was in the best interests of the children.
He stated that the evidence had shown that the move would help the mother somewhat, since she had remarried a Pennsylvania lawyer who could not relocate from there because of the custody arrangements with his own children from a former marriage, but that the benefits to the children from the move had not been established by the evidence. The mother complained on appeal that this was wrong because the court should have adopted a "unity of interests" theory that anything which benefits a custodial mother who wants to relocate necessarily benefits the children and that should be enough to justify the move, but the Court of Appeals specifically refused to do that. Instead, the Court says, "the [trial] court may consider a benefit to the parent from relocation only if the move independently benefits the children." Apparently joint custody does make a difference in these disputes, because the Court takes care to point out that the mother was wrong in constantly referring to herself as the "custodial parent," since there was joint legal custody here. "This is not," the court says in a footnote, "a case involving a custodial parent and a non-custodial parent with visitation rights." The mother also argued that the trial court was "punishing" her because it relied on her testimony that if the move permission was denied she would stay with the children in Virginia, and apparently used that as a reason to deny the father's request to change custody to him – but the Court of Appeals rejects that reasoning. It was also objected that the trial judge changed his custody decision upon reconsideration, having not only decided the case for the mother originally but also denied reconsideration at first. The Court of Appeals finds that this demonstrates extremely conscientious and commendable agonizing by the trial judge and does not violate Rule 1:1, since 21 days did not elapse beyond the entry of an order. The appellate court found that the trial court correctly allocated the burden of proof and found that the father's relationship with the children would be substantially impaired by the move. The law, the Court says, is still that "the party requesting permission to remove the child from the state bears the burden of proof." The essence of the trial court's ruling was that "I am convinced that it is in the best interests of these children to maintain the nature and extent of a relationship with both of their parents [which] can only be achieved through the physical proximity that the parties went to great lengths to establish." Nor did the wife succeed with a Boyd argument that the court improperly granted a remedy that neither party prayed for. That rule doesn't really hold in custody cases, where both parents often move for sole custody and the best result for the children is something else, the Court of Appeals explains. "To limit a chancellor's remedy to only the custody arrangement requested by one of the parents would unduly restrict his or her options… ."