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MOVING WITH CHILDREN? BETTER CALL A LAWYER: PART 1 – “Significant Impairment to the other Party”

On Behalf of | May 16, 2016 | Child Custody, Divorce, Family Law

By Jay M. Kurtz, Esq.

If you are a divorced or separated parent, the first phone call you should make when thinking about moving to a new house or apartment is not to a realtor or a moving company…  it should be to an attorney.  Most everyone knows Pennsylvania has laws addressing child custody and the procedures of what to do when parents separate.  When mom and dad cannot agree on how to share custody of their children, they can turn to the courts to have a judge decide with whom junior will be living Monday through Friday.  What mom and dad often do not know is that same judge can be telling them if they are permitted to move.

Pennsylvania’s relocation statute (23 Pa CS Sec. 5337) requires that “no relocation shall occur unless: (1) every individual who has custody rights to the child consents to the proposed relocation; or (2) the court approves the proposed relocation.”  What’s important to know is that “relocation” is defined under the law as “a change in the residence of the child which significantly impairs the ability of the non-relocating party to exercise custodial rights.”

To put that in plain language, the more likely mom’s intended move will affect dad’s visits with their child, the more likely that relocation needs to be proposed and undertaken according to requirements under the law.  And, to be quite frank, this process is not necessarily the most intuitive of court procedures (which is saying something when most court procedures are not intuitive at all to begin with).

The first question you may have is what constitutes significant impairment to the non-moving party’s custody rights?  If you live in an apartment building, moving from the first floor to the second probably would
not be a relocation issue.  On the other end of the spectrum, moving from London to New York while your ex-husband remains behind would obviously be a huge change in custodial convenience.

That being said, most of us are not Madonna and Guy Ritchie.  So where is the line drawn for significant and insignificant?  Because it is not spelled out in black and white in the statute, there is ambiguity in the law (which is not necessarily a bad thing).  What this means to you is that ultimately a judge will be deciding what is significant.  And if you just made a “significant move” without following the rules, you could find yourself losing custody of your child.

Because the stakes are so high, it’s vital that when you are thinking of moving you contact an attorney familiar with relocation law.  You may have the best reasons in the world for relocating with your child… there’s a new job with a huge pay raise and the local school district places 4 out of 5 kids in Ivy League schools.  But the relocation restrictions are not solely about what is best for your child, it directs the court to consider the impact on the non-moving parent.

I’ll cover the procedure for relocation and potential penalties for doing it incorrectly in a future blog post.  For now, let’s consider when you should be concerned that a proposed move will trigger the relocation statute (SPOILER ALERT: almost all the time).

Example One:  Mother and father both live in the same city.  Mother has primary custody with father having the kids one evening per week and every other weekend.  She wants to move about 15 miles outside of town to a more rural area.  Mother currently lives nearby public transportation, but no buses run to the place she wants to move to.  Father has a medical condition that prevents him from driving.

Example Two:  Mother and father have 50/50 shared custody of their daughter.  Father wants to move about 60 miles away for a new job.  The current custody order requires father to be responsible for all transportation when exchanging custody.

Example Three:  Father has primary custody of two children with mother having two hours of court-ordered supervised visitation every other Saturday.  Mother has only shown up for the supervised visits twice in the last six months.  Father wants to move to New Jersey.

Example Four:  Mother and father have shared 50/50 custody of their 17-year-old daughter.  Currently they both live in the same county, but different school districts.  Mother plans on relocating to Australia in a month right after their daughter graduates from high school.

Which of these examples do you think would trigger the need to go through statutorily mandated relocation procedures?  Which of these examples do you think would not require the procedures?  Which of these examples should trigger a phone call to an attorney to get advice on how to proceed?

Each of the examples has the potential to significantly impact the custodial rights of the non-moving parent (some obviously more than others).  What is important to note here is that just because a move may significantly impact the other parent, it does not mean that parent can prevent the other from moving.  In example one, what if mom takes over all transportation after the move?  Does that alleviate the impact on father?

When proposing relocation, the statute calls for the moving party to include proposed changes to the custody agreement.  These changes are a way to acknowledge and alleviate inconveniences the non-moving party may suffer as a result of the relocation.  We will delve into that and some of the other procedural aspects of the relocation statute in Pennsylvania in the second part of this series.

For now, just know that barring an emergency situation you need to give at least 60-days’ notice to the non-relocating party before the proposed move (and as an attorney I would suggest more time if you expect them to fight you on it).  Oh, and that notice needs to be presented in a format substantially similar to that provided under the rules of civil procedure or it might not count…

The preceding blog article was written for entertainment purposes only. No information contained in this blog shall be considered legal advice and most importantly shall not be relied on by any individual. The views expressed here are the views of Jay M. Kurtz, Esq., only and not necessarily the views of Rick Linn, LLC or any other entity. If you are looking to talk about a custody relocation or any other legal matter, please contact attorney Kurtz at 610-850-9036 ext. 2 to schedule a free consultation today.