Relocation and Custody

What you should know

Child custody cases are difficult to navigate and can be emotionally taxing for everyone involved. Coordinating visitations and exchanges may certainly feel like monumental tasks, especially if the case is contentious. Since co-parenting relies on a delicate balance of routine and cooperation, it is not surprising that an amicable case can become litigious when one parent expresses the desire to relocate. Regardless of motivations for moving, the other parent may feel that the move will threaten their custodial time, and can object to the relocation. If the parties cannot reach an agreement, the Court will need to consider specific factors to determine an appropriate solution. Gaining an understanding of the how the Court handles relocation cases will help you to not only comply with the law, but to also better manage your expectations.

What is considered a “relocation”?

Many parents assume relocation laws only apply when a party plans to move out of state, however, Pennsylvania’s relocation laws do not explicitly address applicability. Under 23 Pa.C.S.A. §5322(a), Pennsylvania’s Child Custody Act defines relocation as “a change in residence of the child which significantly impairs the ability of a non-relocating party to exercise custodial rights”.

Defining relocation in broad and subjective terms makes navigating the custody process quite difficult, especially without an attorney. As complex as it may seem, the ambiguous nature of this definition provides an opportunity for the Court to determine a solution that is in the best interest of the Child. Rather than relying purely on jurisdiction, such as county or state lines, the Court can consider the facts of the situation and gain a greater understanding of how the move may impact the non-relocating parent’s custodial rights.

What is the procedure for filing for a relocation?

Pennsylvania’s Child Custody Act under 23 Pa.C.S.A. § 5337, clearly requires all parties with custodial rights to consent to the relocation. Absent consent, the relocating parent must obtain judicial approval prior to moving. If a parent intends to relocate, they must first serve a Notice of Proposed Relocation to all parties with custodial rights at least 60 day prior to your intended moving date. The relocating parent must also provide a number of key details, such as:

  • The proposed relocation date and the reason(s) for the move;
  • The new address (and mailing address if different) and basic contact information;
  • The names of all individuals who will be living at the new location;
  • The name of the new school and school district;
  • A proposed custody plan; and
  • All other information relevant to the proposed relocation.

In addition to this information, they must also provide a “counter-affidavit”, which the receiving party can use to object to the proposed relocation or modification to the custody order, and 23 Pa.C.S.A. §5337(c)(3) requires the relocating party to specify that they have 30 days to respond with the objection. If they fail to respond to the notice, they may waive the right to object to the relocation. If

they do file an objection, the Court will schedule a trial date. The trial will examine the specifics of the case and the information gathered will help the Court to decide a solution that is in the best interest of the child. The party who proposed the relocation has the burden of showing that their proposal advances the child’s best interest, though all parties yield the burden of demonstrating that their motives for litigating are honorable.

There may be additional steps to the procedure, as the above was intended to act as an overview rather than a guide, but if the procedure is not properly followed, or if the moving party decides to skip the process altogether, it is entirely possible that the Court can require the Child to return to the non- moving parent. Such actions could negatively impact future custody modifications and negotiations, so it is always advised to consult an attorney and follow the relocation statutes.

How do I know if I should file a relocation?

Generally, it is advised to consult an attorney if you are moving and are unsure of whether the move would constitute a relocation. There are situations in which the relocation statute holds less weight on a case, such as cases that lack custody orders, or cases where the non-moving party will agree to the relocation. Cases with primary/partial custody agreements are often easy to process as the Court can simply modify the existing custody order. The most difficult situations occur with existing shared custody orders, particularly if one parent is planning to move a great distance from the other.

You may still be wondering how to determine if you even need to file a notice of proposed relocation, given that the definition of relocation under the Child Custody Act is somewhat vague. You may be worried that filing a Notice of Proposed Relocation risks the other party objecting the move, and may not be inclined to file, especially if you are not sure if your move even qualifies as a relocation.

In the Pennsylvania Superior Court case, C.M.K. v. K.E.M. (2012), a mother with primary custody preemptively filed a Notice of Proposed Relocation in an effort to comply with the Child Custody Act. During the trial, she argued that she filed the Notice as a cautionary measure, despite her argument that her move should not be considered a relocation. The trial court determined that her filing of the Notice was proof that she conceded a relocation, however, the Superior Court reversed this decision, holding that the act of filing a Notice is not the same as a concession. In other words, a party who wishes to move can still provide formal notice, even if they are not sure whether the move is substantial enough to be considered a relocation.

What factors do Judges consider during a relocation trial?

The C.M.K. v. K.E.M. (2012) case is also helpful in identifying ways in which a Court would determine if a move constitutes a relocation. The Court examined the specific impacts the move would have on the non-relocating parent’s custodial time, also analyzing other factors, such as child care arrangements, activity involvement, and whether the move would ultimately affect the Child’s relationship with the non-moving parent in a negative way. Providing a framework for analyzing the facts of subsequent cases, C.M.K. v. K.E.M. illustrates some of the factors the Court will consider to arrive at an appropriate solution.

As you can imagine, the Court will scrutinize your motives for relocating, so it is best to understand and anticipate the types of questions a Judge or opposing counsel may pose during trial. The list of relevant factors that the Court considers has evolved over the years, stemming from three distinctive factors: (1) potential advantages of the relocation and the ways in which the move will impact the lives of all parties; (2) the integrity of the parent’s motives, both supporting and objecting to the relocation; and (3) whether there are visitation or custodial arrangements that can promote an ongoing relationship between the Child and the non-moving parent. Gruber v. Gruber 582 A.2d 483 (Pa. Super. 1990).

Since the Court’s primary concern in all custody cases is the best interest of the Child, “the best-interests standard, decided on a case-by-case basis, considers all factors which legitimately have an effect upon the child’s physical, intellectual, moral, and spiritual well-being.” Saintz v. Rinker, 902 A.2d 509, 512 (Pa. Super. 2006)(citing Arnold v. Arnold, 847 A.2d 674, 677 (Pa. Super. 2004)). In the spirit of determining the best interest of the Child, the Child Custody Act expanded the factors established in Gruber v. Gruber to include ten factors for the Court to examine when determining relocation:

  • The nature, quality, and extent of involvement of the child with both parties and also other people who are significant in the child’s life;
  • The age, developmental stage, and needs of the child that could impact the child’s physical, educational, and emotional development;
  • The ease of preserving the relationship between the child and non-relocating party in terms of logistics and finances;
  • The child’s preference, depending on the child’s age;
  • If the parties have a pattern of conduct that promotes or harms the relationship with the child and parties;
  • If relocation will enhance the quality of life for the relocating party (including financial, educational, or emotional benefits);
  • If relocation will enhance the quality of life for the child (including financial, educational, or emotional benefits);
  • Motivations of each party in terms of the relocation;
  • Past or present abuse; and
  • Other factors affecting the best interest of the child.

As you can see from this list, the analysis during a trial is thorough and while structured, still flexible enough to approach each case subjectively. Establishing a standard for examining relocation helps the Court to achieve consistent, yet customized solutions for each case.

How do I maximize my chances of “winning” a relocation trial?

Since the laws pertaining to relocation in Pennsylvania are vague yet complex, consulting an attorney will be very advantageous, especially from the day one, because an attorney who understands Pennsylvania’s laws pertaining to relocation can ensure that you are compliant with all of the relocations rules and procedures. The Court relies very heavily on facts during a relocation trial, so other than preparing yourself for the types of questions you will be asked, like all other litigious events, there are no secrets or tricks to obtaining the result you want. Managing your expectations and aligning yourself with the Court’s goal of determining a solution that is in the best interest of the Child will help you to accept the results, even if you do not find them favorable.

This article was written by writer and content strategist, K. Gleason.