Posted by: Dec 31, 2013By MJSJSDC

How to Handle Moving and Child Custody Issues

child custody and relocation

If you share custody you cannot simply move. There are important considerations you need to understand.

Thinking of moving?  If you live in Pennsylvania and have a custody arrangement for your child(ren) with another party, think again.

For any proposed relocation, which is defined as a change in residence of a child which significantly impairs the ability of a non-relocating party to exercise custody rights, either every person having custody rights must consent to the relocation or the court must approve the relocation.

Notice

Section 5337 of the Child Custody Act requires that the party proposing relocation provide notice to every individual having custody rights to the child.  Notice must be sent by certified mail, return receipt requested no later than either:

(i)         60 days before the proposed relocation; or

(ii)        the 10th day after the date that the individual knows of the relocation if:

(a)  the relocating party did not know and could not reasonably have known of the relocation in sufficient time to comply with the 60-day notice; and

(b)  it is not reasonably possible to delay the date of relocation so as to comply with the 60-day notice.

The notice must include the following information, if available:

(i)         The address of the intended new residence.

(ii)        The mailing address, if not the same as the address of the intended new residence.

(iii)       Names and ages of the individuals in the new residence, including the individuals who intend to live in the new residence.

(iv)       The home telephone number of the intended new residence, if available.

(v)        The name of the new school district and school.

(vi)       The date of the proposed relocation.

(vii)      The reasons for the proposed relocation.

(viii)     A proposal for a revised custody schedule.

(ix)       Any other information which the party proposing relocation deems appropriate

(x)        A counter-affidavit which can be used to object to the proposed relocation and the modification of a custody order.

(xi)       A warning to the non-relocating party that if the non-relocating party does not file  with the court an objection to the proposed relocation within 30 days after receipt of the notice, that party shall be foreclosed from objecting to the relocation.

Failure to provide reasonable notice as set forth above could negatively impact your custody rights.  The court may consider a failure to provide reasonable notice of a proposed relocation as:

(i)         A factor in making a determination regarding relocation;

(ii)        A factor in determining whether custody rights should be modified;

(iii)       A basis for ordering the return of a child to the non-relocating party if the relocation has occurred without reasonable notice;

(iv)       Sufficient cause to order the party proposing the relocation to pay reasonable expenses and counsel fees incurred by the party objecting to the relocation; and

(v)        A ground for contempt and the imposition of sanctions against the party proposing relocation.

Objection

If you receive a notice of proposed relocation and object to the relocation, you must act promptly.  The non-relocating party objecting to relocation must file a Counter-Affidavit Regarding Relocation within 30 days after receipt of the notice and serve the party proposing relocation by certified mail, return receipt requested.  Thereafter, a hearing will be held.

Failure to file the Counter-Affidavit Regarding Relocation as described herein will prevent the non-relocating party from objecting to the relocation in the future and shall prevent the court from accepting any testimony challenging the relocation.

Hearing

After a timely objection to the proposed relocation has been filed, the court must hold an expedited full hearing on the proposed relocation.  At the hearing, the party proposing the relocation has the burden of establishing that the relocation will serve the best interests of the child.

In determining whether to grant a proposed relocation, the court shall consider the following factors, giving weighted consideration to those factors which affect the safety of the child:

(1)        The nature, quality, extent of involvement and duration of the child’s relationship with the party proposing to relocate and with the non-relocating 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 non-relocating 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.

If you or someone you know is thinking about relocating, contact Attorney Alexis Miloszewski or Attorney Jessica Smith at 717.520.4400 or familylaw@jsdc.com to discuss your options and the unique facts of your case.