When two or more parties are exercising shared physical custody of a child (or multiple children) and the primary custodian wants to move away with the child, there is a specific legal process that must be followed. A party with partial physical custody does not file a petition to relocate without first attempting to modify custody to give them primary custody, and parties with 50/50 custody cannot relocate unless they first petition the court for primary custody.
The court examines:
1. The nature, quality, extent of involvement, and duration of the child's relationship with the party proposing to relocate and with the nonrelocating party, siblings, and other significant persons in the child's life.
2. The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development, taking into consideration any special needs of the child.
3. The feasibility of preserving the relationship between the nonrelocating party and the child through suitable custody arrangements, considering the logistics and financial circumstances of the parties.
4. The child's preference, taking into consideration the age and maturity of the child.
5. Whether there is an established pattern of conduct of either party to promote or thwart the relationship of the child and the other party.
6. Whether the relocation will enhance the general quality of life for the party seeking the relocation, including, but not limited to, financial or emotional benefit or educational opportunity.
7. Whether the relocation will enhance the general quality of life for the child, including, but not limited to, financial or emotional benefit or educational opportunity.
8. The reasons and motivation of each party for seeking or opposing the relocation.
9. The present and past abuse committed by a party or member of the party's household and whether there is a continued risk of harm to the child or an abused party.
10. Any other factor affecting the best interest of the child.
BEST INTEREST OF CHILD
No matter what, the focus of a relocation hearing will be on the impact the move has on the child. The best interest analysis will be performed by the court to see whether the move will help or harm the child. If the evidence is overwhelming that the child's life will significantly improve after moving, the court will grant the relocation. If the evidence shows that the child's life really won't benefit at all, the move will be denied.
If the primary custodian wants to move and take the child with him or her, notice must be given to all other parties with custody rights to the child that the move is being contemplated. If everyone agrees to the move there are no issues, and the court will grant the relocation by Order without a hearing. If there is no agreement, the party seeking to move would have to petition the court and a hearing would take place to make the decision for the parties.
*If neither party has primary custody before the move, the court must make two determinations:
1) which party should have primary custody in the first place; and
2) if the party seeking to move received primary custody, should that party be allowed to move.
A case I appealed to the Superior Court actually set this precedent: my client and his girlfriend separated, were taking the children on an equal basis, but she decided she wanted to move home to New Jersey. She filed a petition to relocate and the court granted her relocation after a hearing. We appealed to the Superior Court and argued that the court should not have presumed mother had primary custody simply because she sought to relocate. The Superior Court ruled that the court must first hold a hearing to determine which party (if any) should have primary custody, and only then could hold a relocation hearing if the person seeking to move was granted primary custody.
SIGNIFICANT IMPAIRMENT TO CUSTODY SCHEDULE
It's important to understand first what a relocation technically is. According to the statute, Pennsylvania law defines relocation as a "change to the residence of a child which significantly impairs the ability of a non-relocating party to exercise custodial rights." In other words, the move must make it difficult or impossible for the non-moving parent to exercise his or her periods of partial custody. In other words, if the parent is only moving 10 miles from their current residence, that does not trigger the requirements under the statute. Even if the non-moving parent will have to drive an extra 5 minutes to pick up the child, this does not significantly impair the ability to exercise custody. On the opposite end, a move from Pennsylvania to Florida will obviously make it impossible for the non-moving parent to have the child every other weekend.
The difficult of the analysis is all the possibilities between those two examples. If a parent's move would add 30 minutes roundtrip to the non-moving party's drive to pick up the child, could this be argued a significant impairment? What about 30 minutes each way? What if the child's school district will change, but the child is only with the primary custodian on school days?
While there is no rule for travel time, an argument can be made that the move will significantly impact the arrangement if 30 minutes or more will be added to travel for the non-moving party, especially if that will take place more than once each week. If the non-moving parent only gets the child every other weekend, adding 30 minutes every two weeks would probably not be a concern to the court. Each case will be unique, and the burden of the move will be examined to see if it really does have an impact.
If both parties transport the child to school, a change of school districts may have an impact on the non-moving party based upon where the new school is located. A 10 minute commute to school may become a 45 minute commute. Again, the impact of the move on that drive time will be considered by the court in deciding whether the move should be granted.
In order for the court to evaluate a proposed move, the relocating party must provide substantial information regarding their new home. Obviously the court needs an explanation as to why the party is moving in the first place. It is not enough to say that you believe your job prospects will be better, or that life will be less stressful by the beach. A mandatory work relocation for the party (or the party's spouse when they are the primary earner), or even a self-sought change within a company at a new location are acceptable starting points. If the move is mandated by work it does not matter if the pay remains the same. If the party has sought a transfer, the court will want to know that the income and benefits of the job will improve with the move.
In addition, the new address, the occupants of the new residence, the new school district, and information with respect to the neighborhood (demographics, cultural resources, crime rates, etc.) are required to provide as much detail as possible about the area where the child will be living. Again, it is insufficient to say that the area is nicer because it's in the mountains and the views are great. And a general area cannot be used, an actual residence must be found. The court wants to know that there is a concrete plan in place, not that there is an idea with no real substance.
Procedurally it is not a relocation when a party living out of the jurisdiction requests primary custody if they have lived in that area for an extended period of time. In other words, if Father has primary custody in Pennsylvania and Mother has lived in New York for two years with partial custody but requests a modification to give her primary custody, that would not be a relocation. Mother isn't asking to move from the jurisdiction; she's already gone. The court must weight the general custody factors and make a best interests determination. But not quite.
The Superior Court has held that even though it's not a technical relocation, if the distance is great enough that it will have the same impact on the local parent as it would in a typical relocation, the court must analyze the relocation factors in addition to the regular custody factors. The court is not to hold a relocation hearing, but must add those factors to its regular analysis. I filed a successful appeal to a court's order awarding Mother primary custody out of state when the court failed to address any of the relocation factors at all.
RELOCATION HIGHLIGHTS OVER THE YEARS
January 2018 - Successfully denied relocation on behalf of a Father where Mother sought to move the child to Philadelphia to live with her fiance.
February 2019 - Successfully denied relocation on behalf of Father for second time where Mother ought to move the child to Philadelphia to live with her husband.
June 2020 - Represented a Mother in a successful relocation from Luzerne to Wyoming County.
June 2020 - Represented a Mother in a successful relocation from Lackawanna to Luzerne County.
June 2022 - Successfully relocated a Father from Luzerne County to Colorado over Mother's objections.