Child Custody and Relocation in Pennsylvania

June 15, 2012

In a recent article about the top 10 custody myths in Lancaster County, Julie Miller touched upon one of the most popular myths – that a parent can relocate without the other parent’s permission. In reality, the relocation procedure that was in place for many years in Pennsylvania required any individual who wanted to relocate to meet the legal standard quantified in the case of Gruber v. Gruber. In 2011, the Gruber requirements were superseded by a new statutory provision, 23 Pa. C.S.A. § 5337, which required that no relocation could occur unless every individual who has custody rights to a child consents to the proposed relocation or the court approves the proposed relocation. As a parent, you must take all the proper steps before you may relocate, or conversely, in order to stop a relocation if you disapprove of it.

What do I have to do to relocate?

If you are the moving parent, the statute requires you to give notice to every individual who has custody rights by certified mail, return receipt requested, within 60 days before the proposed moving date. If you do not reasonably know of the relocation in time to comply with the 60-day notice requirement and it is not possible to delay the date, you must provide notice to all parties no later than the tenth day after the date that you know about the relocation. The second scenario would apply in situations such as a short-notice job relocation or an emergency relocation with limited date flexibility.

Whether providing the 60 days’ notice or a shorter period of time as allowed by the statute, you must provide the following information to any individual who has custody rights to the child:

1. The address of your intended new residence, including the mailing address if it is different than the physical address;

2. The names and ages of the individuals who will be living with you;

3. The home telephone number of your new residence;

4. The name of the new school district and specific school your child will be attending;

5. The date of the proposed relocation;

6. The reasons for the proposed relocation; and

7. A revised custody schedule.

Counter-affidavit regarding relocation

In addition to the above information, a counter-affidavit must be provided with the notice allowing the other party to indicate their position with regard to your relocation. The counter-affidavit must include a warning that if the other party does not file an objection with the court objecting to the relocation within 30 days of receiving notice of the proposed relocation, the non-relocating party cannot object to the relocation.

If no objection is made to a relocation, you must file an affidavit stating that you have provided notice to every individual entitled to notice of the relocation, that the time to file an objection to the proposed relocation has passed, and that no one entitled to receive notice of the relocation has filed an objection to the relocation. You must also file proof that proper notice of the relocation was given and then file a petition to confirm the relocation and modify any existing custody order, along with a proposed order containing the information delineated by the relocation statute. The court then has the ability to modify the order based on the non-relocating party’s lack of objection to the relocation.

How do I stop a relocation?

If you are the non-relocating party in a custody situation and wish to stop a relocation, you must file the counter-affidavit within 30 days of receiving it and the notice. A failure to file it in time will preclude you or any other non-relocating party from objecting to the relocation.

The counter-affidavit regarding relocation will include the name, age and current residence of each child which the relocation will affect and an opportunity for you to indicate whether you object to the relocation, the modification of any existing custody order, or the proposed revised custody schedule. In the event that you do object to any or all of the above, you may request a hearing.

When you object to the relocation or the relocation and modification of the custody order, unless exigent circumstances exist, the court will hold an expedited full hearing on the proposed relocation before the relocation occurs. During the hearing, the court must consider factors listed in the relocation statute, and the burden of proof falls on the party proposing to relocate.

Whether you are considering a relocation or responding to notice that a relocation has been proposed, you should contact counsel at your earliest opportunity. Failure to provide reasonable notice of relocation is something the court may consider when determining the relocation, when modifying any current custody order, or when evaluating the basis for ordering a child to be returned to a non-relocating party. Failure to provide reasonable notice could be sufficient cause to order the relocating party to pay counsel fees and expenses incurred by the non-relocating party.

All Orders issued through the Lancaster County Court, whether by agreement of the parties or otherwise, are now required to contain certain language with regard to any future relocation. As such, in order for a custody order to be valid in our County, even if relocation is not an issue at this time, the relocation language must be included. Due to the intricacies of custody law, it is best to consult an attorney if you are considering a proposed relocation or attempting to defeat an unwanted relocation.

Holly Filius is an attorney at Russell, Krafft & Gruber, LLP in Lancaster, Pennsylvania. She received her law degree from Widener University School of Law and practices in a variety of areas, including Family Law.