Tag Archive for: custody relocation

Relocation Realities

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By Leslie Ellen Shear

Parents who are considering moving with their children after separation or divorce, and parents deciding whether to oppose the children’s move have a lot to think about.

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Improper Custody Relocation

23 PA C.S. 5337 is Pennsylvania’s custody relocation statute which requires any party seeking to move with minor children to get court approval or the other parent’s permission prior to the relocation. A relocation is defined as any move that would “significantly impair the ability of the nonrelocating party to exercise custodial rights.” A move that is only a few miles away would not count as a relocation. Procedurally, the party intending to relocate must give at least 60 days’ notice, or notice as soon as possible, of the intended move. The party would include a counter-affidavit with the notice which allows the non-moving party to designate their position. If the move is contested a hearing on whether or not the relocation should be granted should be held prior to the move. In addition to addressing the 16 factors as to what’s in the child’s best interests required in any custody case, the moving party must also address 10 relocation factors. The moving party has the burden of proof to show relocation will serve the best interests of the child(ren) and that there is no improper motive in seeking to move.

Failure to abide by the procedures listed in the statute has consequences. Section 5337(j) discusses the ramifications for failure to provide adequate notice and follow the appropriate channels. The court may consider the lack of notice as a factor when making a final determination on the relocation and whether custody rights should be modified. The court can also view the lack of notice as a basis for ordering the return of the child to the jurisdiction. The court may order the party who improperly relocated to pay attorney’s fees and expenses on behalf of the party who must initiate litigation to indicate their opposition to the relocation. The court can also treat it as a matter of contempt and impose sanctions against the moving party. Finally, 5337(l) explains the court is not permitted to confer any presumption in favor of the relocation where it occurs before the court holds a final hearing.

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Steps for Custody Relocation

Section 5337 of the Domestic Relations statutes sets out the procedures and standards for relocation requests. All parties to a custody action are required to follow the procedures outlined in Section 5337 if they are moving to a distance which would make any existing custody arrangements difficult or impossible to follow. E.D. v. M.P., 2011 PA Super. 238, was one of the first cases to apply the new relocation law. In E.D. v. M.P., Mother appealed after the lower court granted Father’s relocation on the grounds that Father didn’t comply with the provisions of Sec. 5337.

The first error cited was Father’s filing of a petition and Mother’s filing of an answer. Under Sec. 5337 (c) regarding notice of relocation, the initial step procedurally is for the party requesting relocation to send notice to all other interested parties by certified mail, return receipt requested a certain number of days prior to the date set for relocation. Included with the notice should be a counter-affidavit that the opposing party can complete indicating whether or not they agree or disagree with the relocation and/or the modified schedule. If there is any opposition, a hearing will be needed. The counter-affidavit evidencing opposition should be filed with the court and served on the party requesting relocation in the same manner as received; by certified mail, return receipt requested. The next error relates to Sec. 5337 (g) which calls for a hearing to occur before relocation unless exigent circumstance exist. In E.D. v. M.P., the lower court granted Father’s request to relocate immediately without any finding or allegation of exigent circumstances.

Further, Sec. 5337(h) outlines ten (10) factors to be considered before a relocation is granted.

The party proposing relocation has the burden of establishing that the relocation will serve the best interests of the child. Each party has the burden of establishing the integrity of that party’s motives in either seeking the relocation or seeking to prevent it. The Superior Court agreed with Mother that the lower court failed to consider all the factors under Sec. 5337(h) in reaching its decision.

Ultimately, the case was remanded to the lower court for further proceedings applying the applicable laws. The decision indicates that the Superior Court will be diligent in scrutinizing decisions to determine if they have followed the provisions for all relocation matters.

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Changing School Districts?

Custody refers to both physical custody, which is the schedule parties follow, as well as legal custody, which is who makes important decisions for the child(ren). Often times parties will share legal custody meaning they need to communicate, and ideally agree, on major decisions impacting healthcare, religion and education. Which school district a child goes to is an example of an education decision that should be discussed in the context of shared legal custody. If the parties ultimately cannot agree on a school district, the court could intervene to make the final determination.

Moving to a different school district may also arise in the context of a custody relocation. Pennsylvania’s custody relocation statute, 23 PA C.S. 5337, requires the party seeking relocation to get court approval or the other parent’s permission prior to relocation. A relocation is defined as any move that would “significantly impair the ability of the non-relocating party to exercise custodial rights.” Prior to the relocation, the party seeking to move must give notice via certified mail to the other parent and said notice should include the proposed new school district.

Click here to read more about relocation.

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