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What if One Parent Wants to Move Under the New PA Child Custody Law?

  
  
  
  

When Pennsylvania child custody is split between parents, conflicts almost inevitably arise.  One issue that I am often asked about is what happens when one parent wishes to relocate with the child.  The Superior Court of Pennsylvania recently analyzed this issue under the new PA Child Custody Law (23 Pa.C.S.A. § § 5321 et seq.). 

In this case (E.D. v. M.P., 2011 PA Super 238 (Pa. Super. 2011)), primary physical custody of the child had been awarded to Father and partial custody and visitation to Mother back in 2009.  Father filed a Petition for Special Relief on January 25, 2011 to seek permission to relocate to New York with the child as a result of an opportunity for advancement in Father’s employment.  The trial court issued a rule to show cause why such relief should not be granted on Mother.  After a hearing, the trial court granted permission for Father to move to New York with the child.  Mother appealed.     

relocation under the pa child custody lawThe Superior Court based its analysis on PA’s new Child Custody Act, which went into effect on January 24, 2011.  The Court reasoned that the legislative intent behind the Act was for it to apply to all PA child custody proceedings commenced after January 24, 2011, including a Petition for Relocation, even if the original custody action was filed prior to the effective date. 

PA’s new Child Custody Act sets forth both the procedure and standards for a relocation request.  Under the Act, the party seeking to relocate does not make an initial filing with the court; instead, he or she must send a notice as specified in the law to every other party with custody rights.  The notice must contain a proposed revised custody schedule and a counter-affidavit.  A party receiving such a notice who objects to the terms of the relocation or the revised custody schedule must complete the counter-affidavit and file it with the proper court within 30 days.  The trial court must then “hold an expedited full hearing before the relocation occurs, unless it finds that exigent circumstances require approval of the relocation prior to an expedited full hearing.”  Id

The Act also changes the legal standards that a PA court must consider when ruling on a request to relocate.  Trial courts must consider the ten factors listed in Subsection 5337(h):

  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 with 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 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.

The Superior Court remanded the case back to the trial court to make the proper analysis under the new child custody law. 

Any parent involved in a PA child custody action should consult an experienced child custody attorney who is familiar with PA’s new Child Custody Law.  Schedule a free consultation with a Montgomery County, PA child custody attorney.
The experienced divorce attorneys at The Martin Law Firm represent individuals in Southeastern Pennsylvania for family law matters including divorce, child custody, child support, alimony, and equitable distribution.  Contact The Martin Law Firm at 215-646-3980 or by email to contact an experienced PA divorce attorney.

Comments

This is such a great article! Very timely for me, and helpful re: new custody law procedures, etc. 
Thanks!
Posted @ Friday, February 03, 2012 9:45 AM by CLBM
Great article, but what happens when the parents truly share custody 50/50 and one parent wants to relocate? In our case the only reason for relocation would be one parent doesn't have a job, is anticipating the end of alimony and would want to sponge of parents.
Posted @ Friday, March 02, 2012 12:31 PM by Michele Gabriel
Michele, 
 
Thank you for your comment. Pennsylvania’s child custody law states that “no relocation shall occur unless (1) every individual who has custody rights to the child consents to the proposed relocation; or (2) the court approves the proposed relocation.” 23 Pa.C.S.A. § 5337(b)(1)-(2). The statute also defines the procedure required for relocation. The party seeking to relocate must send a notice to every party with custody rights. The notice must include a proposed revised custody schedule and a counter-affidavit. If you object to the terms of the relocation and/or the revised custody schedule, you must complete and file the counter-affidavit with the court within 30 days. The court will then hold a hearing, and it will base its analysis on the ten factors listed above to determine whether the relocation would be in the best interest of the child. Child custody matters have extremely significant consequences to all parties involved, and I always recommend that anyone involved in a child custody matter seek professional legal counsel authorized to practice law in your jurisdiction.  
 
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Nothing in this blog is intended to be a solicitation of, or the provision of, legal advice, nor to create an attorney-client relationship with me or any law firm. You may not form an attorney-client relationship with me or any law firm with which I am associated by the use of this blog, leaving comments to any post, or sending me email. You should seek professional legal counsel authorized to practice law in your jurisdiction before acting on any information contained on this blog.
Posted @ Thursday, March 08, 2012 2:22 PM by Jason Martin, Esq.
I have primary physical custody of my 2 daughters. my current husband and i wish to move 5 miles from our current home, putting my daughters in a different school district.I share legal custody with my ex. he has moved 10 times in the last 6 years, and has never lived in there current school district. He has not been able to see our daughters on his court ordered visitation days for years due to his work schedule. I currently have been allowing him to see them on one of my days to maintain contact. He has been evicted 2 times during his 10 moves and does not pay me child support. Our new home is close to public transportation to help him continue to see girls and i am willing to be flexible to help him. Can he stop our move?
Posted @ Saturday, May 05, 2012 7:37 AM by melissa
Melissa, 
 
Pennsylvania’s Child Custody Act sets forth both the procedure for a relocation request. Under the Act, if you are seeking to relocate with your daughters, you must send a notice as specified within the law to their father and every other party with custody rights. The notice must contain a proposed revised custody schedule and a counter-affidavit. If he objects to the terms of the relocation or the revised custody schedule, he must complete the counter-affidavit and file it with the proper court within 30 days. The court must then hold a hearing before the relocation occurs. It may be easier to get his consent prior to the move and amend the custody order accordingly. As with any child custody matter, the stakes are high, so I would recommend consulting an experienced child custody lawyer licensed to practice in your jurisdiction. 
 
**********  
Nothing in this blog is intended to be a solicitation of, or the provision of, legal advice, nor to create an attorney-client relationship with me or any law firm. You may not form an attorney-client relationship with me or any law firm with which I am associated by the use of this blog, leaving comments to any post, or sending me email. You should seek professional legal counsel authorized to practice law in your jurisdiction before acting on any information contained on this blog.
Posted @ Wednesday, May 16, 2012 10:37 AM by Jason Martin, Esq.
What does this law mean for us. My wife and I are married and have custody of our son. My in-laws have grandparent visitation to the minor child. How will the court decide if we can move with our son / what will they consider in possibly forcing us to live here so he can have visitation with his grandparents?
Posted @ Wednesday, May 30, 2012 8:22 PM by Everson Berringer
Everson, 
 
The relocation provisions under the PA child custody law are inapplicable to your situation. As parents with full custody of your child, you and your wife have the right to relocate with your son. No court action is necessary if you wish to move. 
 
***********************  
Nothing in this blog is intended to be a solicitation of, or the provision of, legal advice, nor to create an attorney-client relationship with me or any law firm. You may not form an attorney-client relationship with me or any law firm with which I am associated by the use of this blog, leaving comments to any post, or sending me email. You should seek professional legal counsel authorized to practice law in your jurisdiction before acting on any information contained on this blog.
Posted @ Tuesday, June 05, 2012 10:23 AM by Jason B. Martin, Esquire
I have primary physical custody of my two in half your old boy. His father has partial. However, our son doesn't have his fathers last name or he wasn't put on the birth certificate because we weren't together. We reside outside of Harrisburg,Pa. I would like to go back to my home state which is in Alabama. I have chronic fibromyolgia. My doctor said warmer climate would ease the pain. My sons father, pays child support. Sees him 3x's a week. I asked him first if I could move, he said yes as long as you drop child support, and we will figure out visitation details afterwards. I dropped his child support, and he changed his mind. He demands 50/50 custody, part of income tax and our sons last name changed to his...I already sold my house and every few days he changes his mind. We finally agreed to every 4 weeks alternating months ... but now he keeps adding a little every few days. How can I leave Pa if the father isn't giving me an answer.
Posted @ Tuesday, June 19, 2012 8:56 PM by Ashley
Ashley, 
 
Your situation is a great example of why parents should have signed child custody agreement in place that is recorded with the appropriate Pennsylvania court. Child custody agreements should be drafted only by an experienced child custody attorney. If you have a signed legally binding document in place, your ex cannot just change it on a whim.  
 
Additionally, there are statutory requirements and legal procedures that you must follow under the PA child custody law if you wish to relocate out-of-state with your child. You should retain an experienced child custody lawyer as soon as possible to resolve these issues. 
 
**********  
Nothing in this blog is intended to be a solicitation of, or the provision of, legal advice, nor to create an attorney-client relationship with me or any law firm. You may not form an attorney-client relationship with me or any law firm with which I am associated by the use of this blog, leaving comments to any post, or sending me email. You should seek professional legal counsel authorized to practice law in your jurisdiction before acting on any information contained on this blog.
Posted @ Monday, June 25, 2012 8:01 AM by Jason B. Martin, Esquire
Question: I live in CT with my boyfriends son and he lives in DC. I am moving out to CA for graduate school and he wants to come. However, he has a 10 year old daughter who lives in PA with her mother. He has joint custody and regular visitation. Is he allowed to move that far away because it may impact his daughter's best interest? Right now he is three hours from her and drives to see her every month or she comes to stay with him. Being in CA would be a lot further away, what is he allowed to do?
Posted @ Friday, June 29, 2012 9:12 AM by Sarah
Sarah, 
 
Your boyfriend should abide by the procedures and requirements outlined in the relocation provision of the Pennsylvania child custody law. Your boyfriend should consult an experienced child custody lawyer in Pennsylvania to review the applicable statute. With an attorney’s guidance, you and your boyfriend can together decide how you would like to proceed.  
 
**********  
Nothing in this blog is intended to be a solicitation of, or the provision of, legal advice, nor to create an attorney-client relationship with me or any law firm. You may not form an attorney-client relationship with me or any law firm with which I am associated by the use of this blog, leaving comments to any post, or sending me email. You should seek professional legal counsel authorized to practice law in your jurisdiction before acting on any information contained on this blog.
Posted @ Thursday, July 05, 2012 8:05 AM by Jason Martin, Esq.
My question is in regards to my son who is 17 years old. He has a child who is 18 months and has visitation. We recently had to move back to Alaska due to my own custody battle with my x husband who is not my sons father. We are planning to ask the court for 50/50 custody 1 so the babies mother can move back to Colorado to live with her grandmother and 2 because my son wants to spend time with his son. How will the courts handle something like this since a visitation arrangement is in place? We did not ask to move prior to leaving but he does not have physical custody of the baby and the baby is not in Alaska but still in PA.
Posted @ Thursday, July 12, 2012 6:34 PM by Bethany
Bethany, 
 
Your question is a bit unclear, and it is difficult to provide any meaningful response without knowing the history of the case. You should retain an experienced child custody lawyer to discuss the specifics of your situation. 
 
**********  
Nothing in this blog is intended to be a solicitation of, or the provision of, legal advice, nor to create an attorney-client relationship with me or any law firm. You may not form an attorney-client relationship with me or any law firm with which I am associated by the use of this blog, leaving comments to any post, or sending me email. You should seek professional legal counsel authorized to practice law in your jurisdiction before acting on any information contained on this blog.
Posted @ Wednesday, July 25, 2012 10:39 AM by Jason Martin, Esq.
Thank you for the article. It is exactly the information I was hoping to find.  
 
My son and I would like to relocate out of state. We are currently in PA and I am considering accepting a job approximately 8 hours away with a former employer. The benefits for me would be tremendous and my son would be close to the college he talks about attending. My son will be 16 (sophomore) this fall.  
 
I have been divorced from his father for 3 years and while I have primary physical custody, he shares joint legal custody and is involved with my son every Wednesday and every other weekend, holidays, etc...My son does not particularly enjoy these times and has expressed that to his father on multiple occasions.  
 
Due to my son's age and the educational opportunities (50% off college) and my employment opportunities, is it feasible the court would grant permission? I know this is not official legal counsel, but in your experience, does a 16 year old's wishes to live with one parent over the other carry any weight?  
 
Also, how likely is the court to follow through with a 'parental abduction' type filing if we should choose to move before the 30 day ruling is handed down?  
 
Thank you for any information you can provide based on your experience in these matters.
Posted @ Wednesday, August 01, 2012 10:25 AM by Jo
Jo, 
 
Pennsylvania's new child custody law defines the standards a court must consider for a relocation request. One consideration is the age, developmental stage and impact of the relocation upon the child at issue. It is impossible to advise you as to how a court would make a determination without formally entering into an attorney-client relationship and learning the specific circumstances of your case.  
 
The law also covers the required procedure for a relocation request. It is advisable to consult an experienced child custody attorney licensed to practice in your jurisdiction before going forward with your relocation. 
 
**********  
Nothing in this blog is intended to be a solicitation of, or the provision of, legal advice, nor to create an attorney-client relationship with me or any law firm. You may not form an attorney-client relationship with me or any law firm with which I am associated by the use of this blog, leaving comments to any post, or sending me email. You should seek professional legal counsel authorized to practice law in your jurisdiction before acting on any information contained on this blog.
Posted @ Friday, August 03, 2012 3:16 PM by Jason B. Martin, Esquire
I am in PA and I moved out here to be with my now ex fiance'. We share our daughter however nothing has been done legally. Can I move?
Posted @ Monday, August 06, 2012 3:12 PM by Lucia
We cannot give legal advice without entering into an attorney-client relationship. If you would like us to represent you, we would be happy to help. Please contact The Martin Law Firm at 215-646-3980 or by email at jbmartin@jbmartinlaw.com.
Posted @ Monday, August 06, 2012 3:20 PM by Jason Martin, Esq.
Great blog, as always Mr. Martin. In general terms, does the law appear to apply in cases where custody has not yet been established, but where an action has been commenced? Or only when there is an actual order in place?
Posted @ Tuesday, August 28, 2012 2:16 PM by Frank
I have a very complicated situation. I have 2 daughters, a 4 year and an 8 year. I am currently living in pa where both of their father live. I recently got engaged to someone who is in the Army and is stationed in NC. I want to relocate down there for more that reason. Of course I want to be with my husband but my mother also lives 3 hours from where I would be relocating to. My mother has alot of health issue and it's getting worst. I need to be closer to her to help her. My daughter's father are not going to agree to this. 
 
To give you a background... 
 
My 8 year old's father never pays child support, is currently homeless and jobless. He takes her for some of his court ordered visitation time but stays with his mother or a friend. He can never keep a job or a home. He has also been involved with drugs in the past. Our custody order is he get s her every other weekend & one day a week.( he never takes her during the week) 
 
My 4 year old's father owns his home & has a decent fulltime job. Yet he does nothing to support his daughter either. We currently do not have a court order for child support because I was trying to work things out with him out of court to have less stress. We also do not have a custody order. Her father also has a big anger problem. He scares me. He has made a number of threats. He has tried to control me & when I dont allow him to he acts crazy and will harrass me. While we were together he was mentally abusive & there were a few times he got phsycial. 
 
 
 
Now my questions is... Is relocating going to be something I have a chance at winning?
Posted @ Saturday, September 08, 2012 12:55 PM by Colleen
Colleen, 
 
It is impossible to advise you without knowing the details of your particular situation. You should consult an experienced child custody lawyer for guidance. We cannot provide legal advice without entering into an attorney-client relationship. If you would like us to represent you, we would be happy to help. Please contact The Martin Law Firm at 215-646-3980 or by email at jbmartin@jbmartinlaw.com.
Posted @ Monday, September 10, 2012 2:50 PM by Jason Martin, Esq.
Frank, 
 
The law applies whenever it affects an individual who has custody rights.
Posted @ Tuesday, September 18, 2012 8:28 AM by Jason Martin, Esq.
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