Child Custody: Do I Really Need His Permission to Move?

Here is a common scenario: mother and father are married with three children.  Unfortunately, their marriage is on the rocks and the mother is considering separation.  Mother, a stay-at-home mom, wants to bring the children with her when she leaves.  The difficulty with separating, however, is that while father’s family is local, her family lives two hours away. Nevertheless, after a particularly bad fight, mother leaves with the children and returns home to her support network, intending to make reasonable arrangements with the father at a later time so that he can see the children on the weekends. A few days later, however, she is served with legal documents, filed by husband’s attorney, which claim that she violated the requirements of the Custody Law — specifically, 23 Pa.C.S. § 5337. The court orders the mother to appear before a judge who will determine whether she improperly “relocated” with the children. If the mother improperly relocated with the children, they may be returned to the father who may now gain an upper hand in any future custody and support proceedings.

The new custody law, with its relocation provisions, went into effect in early 2011. An understanding of this law’s requirements is vital for any parent with a family dynamic that includes two parents who do not reside in the same home. According to the Relocation Statute, if a parent wants to relocate with a child or children, then that parent must take specific steps to notify the other parent and provide an opportunity to approve or reject the move. Yes! You read that sentence correctly. Pursuant to this law, you cannot relocate without the permission of either the other parent or the court. 

This should raise several questions for you: (1) When is a move a relocation? (2) What steps do I need to take to comply with the law? (3) If the other parent rejects the move, how do I secure the court’s approval?

RELOCATION. The first question is not easily answered. The law defines a relocation as “a change in a residence of the child which significantly impairs the ability of the non-relocating party to exercise custodial rights.” To date, the courts have not provided a clear test for determining when custodial rights are significantly impaired. We know, however, that the court will take into consideration how the move will impact travel time, the ability of the non-relocating parent to attend events like baseball games and dance recitals, the ability to participate in parent-teacher conferences, and whether the move will force a reduction in the parent’s custodial time with the child. Some courts may view a change of county or school district, even if the move is only a short distance away, as a relocation.

As a result, even a short move may qualify as a relocation if the move places limitations on the other parent’s ability to continue parenting at the present level. For example, in a case where the parent moved about 20 minutes from the marital residence, the court treated the move as a relocation because the children crossed county lines and would be forced to change school districts. Therefore, to be safe, any parent considering a move with a child should consult with an experienced custody attorney who can review the specific facts of your case and help you determine whether you need to comply with the notice requirements discussed below. The failure to take this precaution could be costly, especially if the parent signed a lease or purchased a new home prior to securing the other parent’s or the court’s approval.

NOTICE. To review on your own the law’s notice requirements in total, search for 23 Pa.C.S. §5337(c). In summary, unless there are exigent circumstances, at least 60 days before the proposed move, via certified mail return receipt requested, the party proposing to move must notify any and all persons with custodial rights of the move. In certain cases, this may include people other than the other parent. For example, you will need to notify someone who is in loco parentis to the children, such as a grandparent or aunt and uncle. The notice must include specific information, including the address of the new residence, the names and ages of every person living in the household, the school the child will be attending, the reasons for the move, and a proposed custody schedule. You must also provide the other parent with the documentation needed to object to the move, which, if filed, triggers a hearing with the court. The non-relocating parent will have 30 days to object to the move and/or your proposed custody schedule.  A failure to properly object is deemed an approval of the relocation.

That said, please note that the law provides an exception to these requirements if there is evidence of domestic violence.

HEARING. If the other parent files an objection (counter-affidavit) with the court, the court will promptly schedule a relocation hearing to determine whether you will be permitted to move with the children. At this hearing, you will have the burden of proof.  This means that it is your responsibility to convince the judge that the relocation, despite any negative impact on the other parent’s custodial rights, is in the child’s best interests. Proving the best interests of the child is more of an art than a science. Section 5337(h) provides a list of ten factors the court must consider in evaluating whether to approve a relocation.

Consideration of these broad factors helps to guide the judge’s understanding of the best interests of the child or children. For example, the judge is required to consider “the likely impact of the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.” The judge will also review the “nature, quality, extent of involvement, and duration” of the relationship between the child and the non-relocating parent. If the child is old enough, the judge must also consider his or her preferences regarding the move. Additionally, the judge will try to evaluate whether the move “will enhance the quality of life for the party seeking the relocation, including, but not limited to, financial or emotional benefit or educational opportunity.” Custody trials are time-consuming, but are life-altering for the whole family. Therefore, it is important that a relocation hearing be taken seriously and approached with thorough preparation.

If you are planning on moving with your children the move will be scrutinized under requirements of the Relocation Statute. You should contact an experienced custody attorney for a consultation. It is important to have an attorney review the unique facts of your case and ensure strict compliance with the notice requirements. It is also never too early to begin to prepare for a relocation hearing.