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Spotlight Issue: Custody Relocation

by | Mar 21, 2015 | Uncategorized | 0 comments

Pennsylvania has strict rules governing the relocation of a child. A parent or guardian cannot relocate with a child unless all parties with custodial rights have agreed to the move or the court has approved the relocation. Relocation is defined as a change in residence which significantly impairs the ability of a non-relocating party to exercise custodial rights. Pennsylvania law does not require that the move be out of the state to qualify as relocation.

Notice requirement – timing

The party proposing the relocation must notify anyone else with custodial rights at least 60 days before the proposed move. If the relocating party did not know and could not reasonably have known of the move within 60 days, and it is not reasonable to delay the move to comply with the 60 day notice requirement, then the relocating party must notify the non-relocating party within 10 days of learning about the need for the move.

Notice requirement – content

The notice of relocation must contain the following information

– new address (unless the relocating party is a victim of abuse in which case the address can be kept confidential)
– names and ages of all persons planning to live at the residence
– telephone number at the new residence, if available
– name of new school district and school
– date of proposed relocation
– proposal for revised custody schedule

Further, the relocating party is required to notify all non-relocating parties that they have 30 days from their receipt of the notice to file an objection to the relocation and that failure to object within those 30 days means that they will not be able to objection to the relocation in the future.

Failure to give reasonable notice

The court has several options when a relocating party fails to give non-relocating parties proper notice. The court can consider the failure as:

– a factor in determining whether or not to approve relocation
– a factor in determining whether or not to modify custody
– a basis for ordering the return of the child to the non-relocating party
– sufficient cause to order the relocating party to pay reasonable expenses and attorney’s fees paid for by the non-relocating party
– a ground for contempt and the imposition of sanctions against the relocating party

It is considered a mitigating factor if the failure to provide reasonable notice is the result of abuse.

Objection to relocation

If a custodial party objects to the relocation then he must file a counter-affidavit asking for an order to prevent the move. The counter-affidavit must be filed within 30 days of receiving notice of the proposed relocation and must be served on the relocating party. In the counter-affidavit the non-relocating party can object to the relocation and/or the proposed modification of custody. If there has been proper notice of the proposed relocation and no objection has been filed, then the non-relocating party is presumed to be in agreement with the move. If a non-relocating party has been given proper notice and has failed to file a counter-affidavit within 30 days of receiving that notice, then the court cannot accept testimony challenging the relocation. A non-relocating party can also complete a counter-affidavit to approve of relocation.

Confirmation of relocation

If no objection to the proposed relocation is filed, then the relocating party must file the following before relocating:

– an affidavit stating that the relocating party has served every custodial party with notice of the proposed relocation, the time to file an objection has passed and no objection to the proposed relocation has been filed
proof that proper notice was given as shown by a return receipt with the signature of the addressee
– a petition to confirm the relocation and modify any existing custody order
– a proposed order with relocation information and modified custody

Modification of custody order

If a non-relocating party files a counter-affidavit approving of both the relocation and the proposed custody modification, then the court may modify the existing custody order by approving the proposed custody schedule submitted by the relocating party. The court will inform the parties how they can modify the custody order in the future. If a non-relocating party files a counter-affidavit objecting to the proposed relocation or proposed custody modification, then the court must hold a hearing. In general, the court is expected to hold a full hearing before the relocation occurs. However, if the court finds that there are exigent circumstances, it may approve the relocation pending a full hearing. If the court approves of the relocation, then it will modify an existing custody order or establish the terms and conditions of a custody order if one does not already exist. The court will do a best interest of the child analysis in determining a custody schedule following the relocation.

Relocation factors

The court will consider the following factors when determining whether to approve relocation and will give additional weight to those factors which affect the safety of the child:

– the nature, quality, extent of involvement and direction of the child’s relationship with the relocating party and with the non-relocating party, siblings and other significant persons in the child’s life
– the age, developmental stage, needs of the child and likely impact of the relocation on the child’s physical, educational and emotional development, taking into consideration any special needs of the child
– the likelihood that the child will be able to maintain a relationship with the non-relocating parent, taking into consideration the logistics and financial circumstances of the parties
– the child’s preference, considering the age and maturity of the child
– whether the relocation will enhance the general quality of life of the relocating party
– whether the relocation will enhance the general quality of life for the child
– the reasons and motivation of each party for seeking or opposing relocation
– the present and past abuse committed by a party and whether there is a continued risk of harm to the child or abused party
– any other factors affecting the best interest of the child

If there is an existing custody order, then the relocating party has the burden of establishing that the relocation will serve the best interest of the child. Each party has the burden of proving the integrity of their motives for proposing or objecting to the relocation.

Failure to follow the proper procedure when it comes to custody relocation can have serious consequences for you and your child. It is important to have a knowledgeable attorney on your side. Contact our Berks County custody attorneys at 610-372-5128 or submit your case using the “Ask an attorney” link.



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