This article was originally published on The Legal Intelligencer by John Zurzola on March 22, 2016
Child custody relocation, once an area of the law dictated primarily by case law, has been codified in 23 Pa. C.S. Section 5337 since 2011 and sets forth the comprehensive procedures and substantive standards for parties and courts to follow when involved in child custody cases dealing with relocation of children. Relocation is defined in the law as “a change in a residence of the child which significantly impairs the ability of a non-relocating party to exercise custodial rights.” The relocation statute naturally differentiates between the respective procedural duties and evidentiary burdens of the “party proposing relocation” and the “non-relocating party.”
All child custody cases must be decided by courts after a presentation, consideration and a written decision based upon a set of 16 factors that seek to determine what is in the best interest of the child. These factors, which are set forth in 23 Pa.C.S. Section 5328(a), address a host of concerns that examine, among other things, past abuse, the parties’ relationships with the child and each other and the need for stability. In relocation cases, that analysis is expanded by another set of factors as set forth in 23 Pa.C.S. Section 5337(h)(2). The relocation factors touch upon many of the themes found in the 16 factors in Section 5328(a) that address a child’s best interest but expand the analysis to examine, most significantly, the impact that a relocation may make on a child’s educational and emotional development, and the impact that the relocation may have on the child’s quality of life. In a relocation case, both sets of factors must be addressed and set forth in the court order.
Before that, a parent seeking to relocate with a child must serve notice to the nonrelocating party with a host of information about the new residence as well as prepare and serve a counter affidavit for the nonrelocating party to use to object. If the nonrelocating party doesn’t object and it can be shown that they were properly served, the parent seeking relocation can file a petition and proposed order confirming the relocation. If the nonrelocating party objects, the case will go to a hearing on relocation.
The statute, however, while comprehensive, does not specifically address situations where the parents aren’t actually relocating to a new residence and the dispute involves parties disagreeing about a child going to live with the other parent in a different jurisdiction or geographic area. This very situation was addressed in the 2014 case, D.K. v. S.P.K., 102 A.3d 467, 468, 2014 PA Super 218 (Pa. Super. Ct. 2014). The Pennsylvania Superior Court found that “a custody case where neither parent is seeking to relocate … does not per se trigger 23 Pa.C.S. Section 5337 of the Child Custody Act, 23 Pa.C.S. Section 5321 et seq. Thus, the notice requirement of Section 5337(c) does not apply in such cases.”
This case is important because this particular fact pattern may be commonly confused by attorneys with the type of relocation circumstances that require the notice and procedural requirements of the statute, which aren’t necessary when the parents are not moving and there is no active custody litigation before a request by a party to transfer custody of a child. However, while the comprehensive notice and filing requirements aren’t applicable in this situation, that doesn’t mean that the statute is totally inapplicable.
The court went on to state in D.K. that “in any custody determination where neither parent is moving, but the children stand to move to a significantly distant location, the trial court would still need to consider the age, developmental stage, needs of the child and the likely impact the child’s change of residence will have on the child’s physical, educational and emotional development (Section 5337(h)(2)), the feasibility of preserving the relationship between the other parent and the child (Section 5337(h)(3)), and whether the change in the child’s residence will enhance the general quality of life for the child (Section 5337(h)(7)). Even though these three factors are not directly or implicitly encompassed in Section 5328(a), they are clearly relevant to the decision of what is in the child’s best interest when contemplating a move of significant distance to the other parent’s home.”
Child custody attorney, Pat Kelley, has extensive experience in dealing with many different types of child custody cases: from the simplest custody agreement to complex litigation before a trial court.