Families' circumstances often change over the course of a child's life. One such circumstance that can change is where parents reside. A parent may find it necessary to relocate because of work, family obligations, or simply because a change of scenery is desired. Sharing custody of a child can be complicated in and of itself, depending on a family's circumstances, and when parents are separated or divorced and relocation is being considered, sharing custody can become that much more complicated. When relocation is being considered, the issue of how the parent's relocation will affect child custody must also be considered, and must also be properly addressed. In that regard, an important caveat must be acknowledged: failure to take the necessary steps regarding an intended parental relocation can seriously jeopardize the chances of the relocating parent's success.
Pennsylvania Family Law, unlike in some other states, does not specify what Family Court will consider what is regarded as the "relocation" of a parent. Although it is generally understood that a parent who intends to move to another state, New Jersey for example, will be considered to be relocating with the child, the law is not as clear when different scenarios arise. For example, if a parent who lives in Philadelphia wants to move to Montgomery County, will Family Court consider such a move to be a relocation? A parent's move from Philadelphia to Montgomery County can be a move of five miles away, or more than 50 miles depending on circumstances. Although five miles would be unlikely to be considered a relocation under Pennsylvania custody law, could the argument be made that a move that puts one custodial parent 50 miles away from the other custodial parent should be regarded as parental relocation?
In Pennsylvania, the law defines parental relocation "a change in a residence of the child which significantly impairs the ability of a non-relocating party to exercise custodial rights."* A Pennsylvania custody attorney should be consulted to advise whether a parent who: 1) shares custody with another; and 2) intends to move to another location, should do so only after taking the proper steps regarding parental relocation.
* 23 Pa.C.S.A. §5322(a)
For purposes of this blog, the term "parent" will also include any party who has custodial rights (physical and/or legal) of a child.
Necessary Steps Regarding Pennsylvania Parental Relocation
Pennsylvania Family Law requires that all parties who have custody rights of a child (physical and/or legal) must consent to the parent's intended move, or a judge approves of the parent's move after the proposed move is brought to the attention of Family Court.* Parents who share custody of a child and intend to move elsewhere may not realize that there are requirements regarding how others who have custody rights must be notified.
A parent who intends to move must send notice to any and all others who have custody rights by certified mail, return receipt requested, and notice has to be given no later than:
- The 60th day before the date of the proposed relocation; or
- The 10th day after you know about the relocation but only if:
- You did not know and could not reasonably have known of the relocation in enough time to give the 60-day required notice; and
- It is not reasonably possible to delay the date of relocation to meet the 60-day notice requirement.**
In addition to the above, Pennsylvania Family Law requires that the following information, if available, be included with the notice of proposed relocation:
- The address of the intended new residence and the mailing address (if different);
- The names and ages of the people who currently live, or intend to live, in the new residence;
- The home telephone number of the intended new residence, if available;
- The name of the new school district and school;
- The date of the proposed relocation;
- The reasons for the proposed relocation;
- A proposal for a revised custody schedule;
- Any other information which the parent intending to relocate believes is appropriate to include;
- A "counter-affidavit" which can be used by those who receive the notice to object to the proposed relocation and the modification of a custody order; and,
- A warning to the non-relocating party that if s/he does not file an objection with the court to the proposed relocation within 30 days after receipt of the notice, that s/he can no longer object to the relocation.****
To protect their safety and well-being, victims of domestic abuse and/or domestic violence whose address was kept confidential by the Family Court where the Petition to Relocate was filed (Philadelphia, Montgomery, Delaware, Bucks, or Chester County for example) may be able to exclude certain information from the notice of proposed relocation. A Pennsylvania custody attorney can advise what will be acceptable to the applicable Family Court based upon the relocating parent's particular circumstances.
* 23 Pa.C.S.A. § 5337(b)
** 23 Pa.C.S.A. § 5337(c)(1),(2)
Failure to Give Proper Notice of Intended Parental Relocation
If the parent who intends to relocate does not give proper notice of their intended relocation, Family Court will consider the parent's failure to do so when ruling on the petition to relocate. A Family Court judge can use the parent's failure to do so in the following manner:
- As a factor in making a decision regarding the parent's intended relocation;
- As a factor in determining whether custody rights should be modified;
- As a reason for ordering the return of the child to the non-relocating party if the parent already relocated without reasonable notice;
- As a basis for ordering the relocating parent to pay reasonable expenses and counsel fees of the non-relocating party's objection to the relocation; and/or,
- As a basis for contempt and sanctions (penalties imposed by Family Court) against the relocating parent.*
In Pennsylvania, victims of domestic abuse may be given consideration by the Family Court judge presiding over the case if the relocating parent's failure to provide reasonable notice to the other party/parties was due to domestic abuse and/or domestic violence. If a parent who is a victim domestic abuse and/or domestic violence fails to provide proper notice per Pennsylvania parental relocation law, the Family Court judge can disregard some or all of the five above-referenced factors.**
* 23 Pa.C.S.A. § 5337(j)
** 23 Pa.C.S.A. § 5337(k)
What Happens if the Non-Relocating Parent Objects to the Relocating Parent's Move?
If the other parent (or party) with custody rights objects, s/he must file an objection with Family Court within 30 days of receiving the relocating parent's/party's proposed relocation notice. Once filed, the objecting parent/party has to serve a copy of the objection to the relocating parent by certified mail, return receipt requested. A hearing will be scheduled thereafter and a Family Court judge will decide if the parent who intends to relocate will be allowed to relocate.* (It is important to note that even if no objection is filed by the parent/party who is not relocating, the relocating parent/party has to file certain documents with Family Court before relocating with the child.**
In most instances, the Family Court judge presiding over the proposed relocation will hold the parental relocation hearing after receiving the objecting parent's/party's objection. In some instances, however, the Family Court judge can decide that a parental relocation hearing will be necessary prior to receiving the other parent's/party's objection. Emergency circumstances yet may allow the Family Court judge to temporarily approve the proposed relocation, and thereafter hold the parental relocation hearing to make a final decision on the matter.*** A temporary approval does not necessarily indicate that the proposed relocation be granted when a final decision is made at the subsequent parental relocation hearing.****
If the Family Court judge grants the relocating parent's petition to relocate, the judge will: 1) modify an existing child custody order with the "best interest of the child" in mind; or 2) establish the terms and conditions of a custody order, again, with the "best interests of the child" as the foremost standard.******
* 23 Pa.C.S.A. § 5337(d)(2)
** 23 Pa.C.S.A. § 5337(e)
*** 23 Pa.C.S.A. § 5337(g)(1)-(3)
**** 23 Pa.C.S.A. § 5337(l)
****** 23 Pa.C.S.A. § 5337(g)(4)
Prior to the Pennsylvania Parental Relocation Hearing
In Family Court throughout Pennsylvania, be it in Philadelphia, Montgomery, Delaware, Bucks, Chester County, or elsewhere, each Family Court has specific practices and procedures at to what will be required by both the relocating parent/party and the objecting party/parent prior to the the parental relocation hearing itself. In addition, individual Family Court judges often have their own specific requirements as to what is expected in their courtroom both prior to, and at the parental relocation hearing.
In Philadelphia County for example, a pre-trial conference is often held before the parental relocation hearing. At the pre-trial conference, the attorneys for the relocating parent/party, the objecting parent/party, and any other parties who may have a stake in the matter will appear before the presiding Family Court judge to address preliminary matters prior to the parental relocation hearing. Even prior to a scheduled pre-trial conference, the attorneys will often be required to meet or confer by telephone to:
- Exhibit all photographs and other documents to be used at trial;
- Disclose the identity of all witnesses to be called at trial;
- Agree by way of stipulation, when possible, to all documents and facts with a view towards narrowing issues and conserving trial time;
- Reveal any issues of law known to any attorney which may not be apparent from the pleading and/or case history; and,
- Engage in good faith efforts to resolve the case.
Also, prior to the pre-trial conference, the attorneys will be required to serve a "pre-trial memorandum" upon Family Court, the other attorney(s), and/or other parent/party/parties. The pre-trial memorandum should include, but may not be limited to, the following:
- A brief narrative statement of the case;
- Unusual legal problems, if any;
- Stipulations of the parties, if any;
- An analysis of the 16 custody factors enumerated under 23 Pa.C.S.A. § 5328(a), and an analysis of the 10 relocation factors enumerated under 23 Pa.C.S.A. § 5337(H);
- A list of all names and addressed of all persons who may be called as witnesses at the parental relocation hearing by the party filing the statement; and,
- A list of all exhibits which a party intends to use at trial.
Failure to Comply With Parental Relocation Pre-Trial Requirements
Failure to comply with the above-referenced pre-trial requirements regardless of which Pennsylvania Family Court the matter is pending can cause severe consequences. For example, failure to comply may result in the exclusion of evidence from the parental relocation hearing which was not disclosed during pre-trial proceedings and/or the imposition of attorney's fees and costs to the non-compliant parent/party/parties.
If, for example, because of a lack of bad faith on the part of the non-compliant parent/party/parties, the Family Court judge can deems such consequences as unnecessary, and instead continue the pre-trial conference to allow the non-compliant parent/party/parties to comply. In the alternative, if the Family Court judge deems it appropriate, non-compliance with pre-trial requirements can result in the dismissal of the non-compliant parent's/party's/parties' pleadings and/or position.
What Factors Will a Family Court Judge Consider When Deciding If a Parent Can Relocate With a Child?
The "best interest of the child" is always the foremost consideration when Family Court is determining child custody, but Family Court will also consider specific additional factors in addressing a proposed parental relocation. When deciding whether or not to grant a parent's/party's proposed relocation, the Family Court judge presiding over the matter should consider the following factors:
- The nature, quality, and amount of involvement, and the length of the child's relationship with the relocating parent/party and with the non-relocating parent/party, siblings, and other significant people in the child's life.
- The age, developmental stage, needs of the child and the likely impact the proposed relocation will have on the child's physical, educational and emotional development, taking into consideration any special needs of the child.
- The possibility of preserving the relationship between the non-relocating parent/party and the child through appropriate custody arrangements, considering the location and financial circumstances of the parties.
- The child's preference, taking into consideration the age and maturity of the child.
- Whether there is an established pattern of conduct of either parent/party to help or harm the relationship of the child and the other parent/party.
- Whether the relocation will improve the general quality of life financially, emotionally, educationally, etc., for the relocating parent/party and child.
- The reasons and motivation why the relocating parent/party is seeking the relocation and of the other parent/party for opposing the relocation.
- The present and past domestic abuse committed by a parent/party or member of the party's household and whether there is a continued risk of harm to the child or the relocating parent/party (if the victim of domestic abuse/domestic violence).
- Any other factor affecting the best interest of the child.*
Ultimately, the parent/party seeking the relocation has the burden to prove to the Family Court judge that the proposed relocation will serve the "best interest of the child" based on the above-referenced factors and that the relocating parent's/party's motivation for the relocation is in good faith. In contrast, the non-relocating parent/party has the burden to prove that they are objecting to the relocation in good faith.**
* 23 Pa.C.S.A. § 5337(h)
** 23 Pa.C.S.A. § 5337(i)
Pennsylvania law regarding a parent's relocation with a child can be complicated; having many technicalities and also having many specific requirements that must be addressed. No parent, whether the party intending to relocate or the party objecting to the relocation, should go it alone with such so much at stake regarding not only their own future, but that of their child. Whether in Philadelphia, Montgomery, Delaware, Bucks, or Chester County, parents seeking to relocate with a child and parents trying to prevent a child from relocating should have a highly-experienced and highly-dedicated Pennsylvania parental relocation attorney in their corner to maximize the likelihood of success.
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