Under Pennsylvania law, before a parent with custody of a child may make a move that seriously affects the custodial rights of another party with custody, that parent must follow certain specified procedures.
Only certain types of moves, known as “relocations,” are restricted under Pennsylvania law. A “relocation” is defined as any change in the child’s residence that could significantly impair the ability of any non-relocating party to exercise his or her custodial rights over the same child.
In other words, only a move that has this effect on another parent’s custody is subject to the law’s requirements, as discussed below. Thus, the distance of a move is not the only consideration. A move that does not cross state or even county lines may be deemed a relocation if the move significantly interferes with the custody arrangements of any other individual with custody.*
To begin with, only an individual with custody of a child (a “custodial parent”) may petition to relocate with that child. Pennsylvania law provides for several different types of Child Custody.
Physical Custody is divided into the categories noted below.
Legal Custody is divided into the following two categories:
1. Notice Requirement
A parent who wishes to relocate with a child must notify every other individual who has custody rights to the child of his or her intent to relocate. The notice must be given in writing and sent by certified mail, with return receipt requested, and must generally be sent no later than 60 days before the date of the proposed relocation.
The notice must contain the following elements, if available:
2. Consequences of Non-compliance with the Notice Requirement
The notice requirements set forth above are strictly enforced by the courts. If a custodial parent does not provide the required reasonable notice of a proposed relocation, the court could consider that non-compliance as a
The effect of a party’s failure to notify the non-relocating party of a proposed relocation will be lessened or eliminated, however, if the court determines that the failure to notify was caused, in whole or in part, by abuse of the non-custodial parent.
As seen from the preceding paragraph, failure to file notice of a move that is ultimately deemed a relocation can have serious and unwanted consequences for the parent proposing the move. Knowing this, parents who have intended to make a move of any sort have often filed notices of relocation, simply out of an abundance of caution, to avoid these potential consequences. The danger in doing so, however, was that the court might deem the notice an admission that the move was indeed a relocation, and thus, subject to the hearing requirements described below.
A Recent Superior Court Case: This very issue was addressed in a recent case by the Superior Court of Pennsylvania. The mother wished to move 68 miles from the father’s current residence and take their minor child with her. While the mother did not believe a move of such a short distance constituted a relocation under Pennsylvania law, she filed a notice of relocation in case a court later determined the move to be a relocation for which she had failed to file the proper notice.
The trial court held that her filing of the notice was a concession that the move was a relocation, but the Superior Court disagreed. The Superior Court found that the filing of a notice of relocation, in and of itself, does not equal an admission that the contemplated move is a relocation, as that term is defined in the law. Thus, a parent who wishes to move with a minor child may file a notice of relocation and still argue at a subsequent hearing that the proposed move does not constitute a relocation.
The relocation proposed by the custodial parent may not occur unless 1) every other individual with custody rights to the child consents to the relocation, or 2) the court approves of the relocation.
If a non-relocating party does not consent to a proposed relocation, that party may file an objection with the court and request a temporary or permanent order to prevent the relocation. As stated in the notice requirements set forth above, the objection must be filed within 30 days of the party’s receipt of the notice of proposed relocation and must comply with a form set out in the statute.
The non-relocating party may also state any objections he or she may have to a modification of the custody order. If such an objection or objections are filed, a hearing will be held and the court will rule on whether to allow the proposed relocation and resultant modification of custody.
When a non-relocating parent files an objection to a proposed relocation, a hearing will be held to give each parent the opportunity to present evidence in favor of his or her position. In determining whether to grant or deny a particular proposed relocation, the court must consider all of the following factors and must give weighted, or extra, consideration to any factors that affect a child’s safety:
If the non-relocating parent does not file an objection, the parent proposing the relocation must still seek confirmation of the relocation from the court. The relocating parent must do so by filing an affidavit stating that all notice requirements were complied with and that the time to file an objection has passed without any objection having been filed.
Child custody matters are among the issues of most importance to divorcing couples. When one parent proposes to move away with a minor child, the matter complicates any final custody arrangement even further. A move made without expert advice can be ill-conceived and have unforeseen results.
In a New York court case, a mother, who had recently graduated from law school, wished to move four and a half hours away from her ex-husband’s current residence in order to obtain suitable employment. At the time of the proposed relocation, the parents had joint custody of their minor child.
The mother testified at hearing that she had been unable to find a position in her current location. The father testified, however, that the mother had made no attempt to find employment in her current location.
The court found that the mother’s proposed relocation was, in fact, an attempt on her part to interfere with and frustrate the father’s visitation rights with regard to the child. As a result, the court not only denied the mother’s request to relocate with the child, but awarded full custody to the father.
As demonstrated by the untoward results of this particular case, obtaining the assistance of an attorney prior to as well as during any attempt to relocate is the wisest and safest course of action for any parent of minor children.
* For purposes of this article, individuals with custody rights to a child will generally be referred to as parents. For a more in-depth discussion of individuals who may petition for and obtain custody of a child, see Child Custody in Pennsylvania: Your FAQs Are Answered.