We have previously noted that there are few cases more vexing than those involving one parent deciding to leave this state with a child and move to another to pursue what he/she perceives as better pastures. Clear case law has developed since 1990 that set a standard for when relocation should be granted and setting forth that once the Commonwealth has jurisdiction over a case a parent wishing to take the children to live out of state needs to file and meet some burdens to sustain their position. Over time this area of judge made law has produced many opinions, not all of which can be seen as consistent. But in a statute passed in November, 2010 and effective on January 26, 2011 the legislature has stepped in and issued some rules and procedures of its own. Ordinarily, the word of the elected legislature is the final one but under a doctrine known as separation of powers, it has been the historic province of the Courts to regulate procedures of law while the General Assembly is delegated the responsibility of deciding the “substance” of Pennsylvania law.
Much of the new statutory law is not different than what has evolved as judicially written law since the 1990 case, Gruber v. Gruber 583 A.2d 483(Pa. Super. 1990). 23 Pa. C.S. 5337 now makes clear that relocation requires either consent of all persons with custodial rights to a child or judicial approval. Those aspiring to get court approval to move with the child to another state are now required to initiate the process by serving a “notice” on other parties with custodial rights stating their intention to relocate not less than 60 days before a proposed move or 10 days after the person learns of a need to relocate (e.g. employer mandated transfer). The ten day notice applies only where the party wishing to move had no reason to know of the transfer and relocation cannot be delayed for the sixty day period required.
The notice must be very specific on some subjects. It must identify the new address where the parent intends to move (and a mailing address if it is not the same) and who else will be residing at this new address including the ages of those individuals. The new phone number must be provided if available. There must be a stated reason for the relocation. The proposed date of the move must be in the notice, as well as the identity of the new school and district. There is to be a proposed order if the existing order needs to be modified as part of the relocation. These are all good things to have adopted. Unfortunately, the statute says they are to be provided “if available” which affords a basis to file a barren notice and claim insufficient time to research these issues. This would however enhance arguments that the move is not thought out and should be rejected for that reason.
The notice does not have to be filed with the court although it certainly would help if it was since that establishes a clear date to measure the sixty days (or ten days) from. It is to be mailed certified with a return receipt. The notice is to contain a “counter-affidavit” which is actually specified in the statute. Unless the non-relocating parent files this counter-affidavit with the court within 30 days of receipt of the notice to relocate, the non-relocating parent shall be “foreclosed” from objecting to the relocation. If the objection is filed on a timely basis, the non-relocating parent is also empowered to ask that the Court enter an order denying the relocation. The objection must be verified as to its truth and requires specification if the objection is to the relocation or any modification sought as part of the relocation (as in where the distance makes the old schedule unrealistic).
If no timely counter-affidavit is filed the party wishing to move must file an affidavit that service was properly made and that the time period allowed has passed without filed objections. The return receipt card is also to be part of the affidavit and there is also to be a petition to confirm the relocation with a proposed modification order where necessary. Where an objection is properly filed to the relocation or the modification of the custody order, a hearing is to be scheduled to consider the request. The hearing is to be expedited and held before relocation is granted unless the court makes a finding that exigent circumstances justify a finding that relocation must precede the hearing.
In deciding a contested relocation case, the factors set forth in Section 5337(h) the factors are essentially the same that have evolved under the case law, such as the nature, quality and duration of the child’s relationship with each of the parents involved. Part of that is also the age and developmental needs of the child or children involved, taking into account the child’s needs. The court is to look at the financial and logistical suitability of alternative custody arrangements and to assess the child’s preference. It is also to examine whether the parents will promote or thwart the child’s continuing relationships with the other. The Court will assess whether relocation enhances the quality of life for (a) the parent proposing it and (b) the children involved. The Court is to examine motivation of the parties and to consider whether there is any history of abuse as that term is defined in the Protection from Abuse law.
The party proposing the relocation has the burden of showing that the move will promote the best interests of the child under subsection (i). Each party has the burden of showing the integrity of their motives in the litigation and failure to provide reasonable notice may be considered as indicia of deceit. This may also result in a finding of contempt and/or an assessment of attorneys fees.
Finally, we now have a definition of “relocation” albeit a subjective one. Under Section 5322 it is a residence change that significantly impairs the ability of the non-relocating party to exercise custodial rights. Whereas the prior jurisdictional standards (i.e. out of county) have been substituted for an analysis relevant to the realities of geography – a move within a county may actually pose a greater impact on custody than a move out of state. Now, any relocation which affects the non-relocating parent’s custodial rights will be subject to this statute.