Is my case a relocation?
A relocation for purposes of a custody case is “a change in a residence of the child which significantly impairs the ability of a nonrelocating party to exercise custodial rights.” 23 Pa.C.S. 5322. Typically in a relocation, one parent seeks to move with the child. If that move would “significantly impair” the nonrelocating parent’s custody, then it qualifies as a relocation. If the move would not substantially impair the other party’s custody, it is not a relocation.
Why is this distinction important? The relocation statute is very specific as to the notice required when initiating a relocation case. If you are seeking relocation, you must provide the other party with notice that includes the prospective address, school district, and other important information. Your case is also expedited and heard before a judge. If the move is not a relocation, but would necessitate a change in the schedule or to the child’s school, then you can file a petition to modify or custody complaint. An initial listing on a petition to modify or a custody complaint is heard before a master, not a judge. In a petition to modify or petition for custody, the court will consider the sixteen custody factors and determine the best interest of the child. If the move is a relocation, the ten relocation factors are analyzed in addition to the sixteen custody factors.
What happens when neither party is moving, but one parent is seeking to move the child to their existing residence and change custody? The Superior Court addressed this question in the case of D.P. v. S.P.K., 102 A.3d 467 (Pa. Super. 2014).
In D.P., the Father lived in Pittsburgh and the mother lived in North Carolina. Mother struggled with alcoholism and Father had primary custody of the parties’ minor children. Once Mother was able to maintain her sobriety, she sought leave of court for the children to come live with her. The Superior Court concluded that “in a case such as this, which involves a custody determination where neither Mother nor Father is relocating and only the children stand to move to a significantly distant location, the relocation provisions of the Child Custody Act, 23 Pa.C.S.A. § 5337, are not per se triggered and the notice requirement of section 5337(c) does not apply. However, in such cases, the trial court shall consider the relevant factors set forth in section 5337(h) insofar as they impact the final determination of the best interests of the children.” Some of the relocation factors take into account the benefit the move will have on the relocating parent. However, in cases where the parent does not move not all of the factors will apply. While stating that the trial court is not required to address the relocation factors when one party is not moving, the Court still encouraged an analysis of both the custody and relevant relocation factors to determine the best interest of the child.
If you are considering a relocation or changing custody so that your child can live with you, please contact our experienced family law attorney at LaMonaca Law. Click or call 610-892-3877.
