Child Custody and Relocation

January 6, 2010

One of the most hotly-contested issues facing Judges in custody cases is whether to allow a custodial parent to relocate to another state with the children. This has become quite common, particularly as people have made and developed relationships through the internet. Relocation cases are difficult for all parties involved: the non-custodial parent is shocked and horrified at the prospect of losing regular contact with his or her children and the prospect of not being able to move to a perceived better opportunity is equally difficult for the custodial parent. Often, these cases are not able to be resolved through the custody conciliation process and they end up at a hearing before a Judge.

My practice is to remind clients involved in all custody litigation, including relocation cases, that the Judge deciding the case is a stranger making decisions about what is in the best interest of your family. He or she has no prior knowledge of your family, you and your ex-partner’s history, your children’s behaviors, likes and dislikes. Depending on your case, it can be helpful or can add to your burden.

Regardless, when considering whether to permit a custodial parent to relocate with the children, Judges’ must adhere to the test set forth in Gruber v. Gruber. The Court, in considering what is in the best interest of the children, must consider the following three-prong Gruber test:

1.         The benefit of the move and the likelihood that the move will substantially improve the life of the custodial parent. The Court must consider whether the move is merely a momentary whim of the custodial parent.

2.         The integrity of the motives of both parents, the one asking to move and the one opposing the move.

3.         The availability of a realistic, substitute visitation schedule that will foster the relationship between the children and the non-custodial parent.

Initially, the parent proposing to move has the burden of demonstrating the advantage to the parent and children.

The Gruber test has been interpreted by Pennsylvania appellate and trial courts both to permit and deny relocation requests. This makes relocation cases nearly impossible to predict for clients, as they are fact sensitive and the results are often fact-driven. However, it is my experience that the more involved a non-custodial parent is in the day-to-day activities and education of their children, the more difficult it is for the custodial parent to persuade the Court that a relocation is in the children’s best interests.

Any parent involved in a custody relocation situation should consider the issues above and have a candid conversation with his or her legal counsel before making decisions regarding relocation.