Tag Archive for: relocation procedure

Custody Relocation

Parties should be aware of court requirements prior to moving with minor children. A local move may not require any additional steps to be taken other than just providing the new address to the other parent. If the move is of a significant distance and could impact the existing custody schedule additional steps must be taken prior to moving. 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 nonrelocating party to exercise custodial rights.” Procedurally, the party intending to relocate should give at least 60 days’ notice or notice as soon as possible after they have knowledge of the relocation. A full hearing on the relocation should be held prior to the move if the relocation is contested. In addition to addressing the 16 factors to consider in any custody award, the moving party must also address the 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. Specifically, 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 attorneys’ 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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