Custody and Relocation with Children

Relocation with children after divorce and custody considerations

Once a couple has made the decision to separate or divorce, it can be a difficult discussion to sort out moving on or moving away. When children are involved, moving on to a new lifestyle or different opportunities can be a complex but rewarding new adventure. Regardless of what side you may be on, there exist many rules and examples of case law that address the legal rights of both parents in the event of relocation with children.

It should first be noted that relocation may only occur with the consent of all parties or ordered by the court. The other parent is able to object to relocation by filing a counter-affidavit with the court in opposition. Within the past few years, Pennsylvania enacted the Child Custody Act 23 Pa.C.S. § 5321 et seq. Specifically, section 5337 addresses the legal standards that a trial court must consider when ruling on a request to relocate. Prior to this, trial courts considered relocation requests based upon the three-factor test set forth in Gruber v. Gruber, 583 A.2d 434 (Pa.Super. 1990).

Under the new act, trial courts must consider the 10 factors listed in subsection 5337(h). The parent proposing the relocation with children bears the burden of proof to meet the factors which are:

(1) The nature, quality, extent of involvement and duration of the child's relationship with the party proposing to relocate and with the non-relocating party, siblings and other significant persons in the child's life.

(2) The age, developmental stage, needs of the child and the likely impact the relocation will have on the child's physical, educational and emotional development, taking into consideration any special needs of the child.

(3) The feasibility of preserving the relationship between the non-relocating party and the child through suitable custody arrangements, considering the logistics and financial circumstances of the parties.

(4) The child's preference, taking into consideration the age and maturity of the child.

(5) Whether there is an established pattern of conduct of either party to promote or thwart the relationship of the child and the other party.

(6) Whether the relocation will enhance the general quality of life for the party seeking the relocation, including, but not limited to, financial or emotional benefit or educational opportunity.

(7) Whether the relocation will enhance the general quality of life for the child, including, but not limited to, financial or emotional benefit or educational opportunity.

(8) The reasons and motivation of each party for seeking or opposing the relocation.

(9) The present and past abuse committed by a party or member of the party's household and whether there is a continued risk of harm to the child or an abused party.

(10) Any other factor affecting the best interest of the child.

The Gruber test took into account the “potential advantages of the proposed move and the likelihood that the move would substantially improve the quality of life for the custodial parent and the children,” This case, (E.D. v. M.P., 33 A.3d 73 (Pa.Super. 2011), illustrates a revised application of the above factors to a relocation case involving a parent moving the child with him from Pennsylvania to New York. Every case is unique; from the parties involved, to the situation at hand. This particular area of child custody requires great care and experienced counsel to handle your case.

Relocation with children both inside and outside of Pennsylvania can cause major disputes between parents and even extended family. Make sure to have an experienced Bucks County divorce and custody lawyer who can assess your situation, wishes, and plans in accordance with the laws and case law before making any moves. Pursuant to 23 Pa.C.S. § 5337(l), if a party chooses to make the relocation with children prior to a full hearing, the court will not confer any presumption in favor of the move.

If you or your spouse opposes relocation with children, call our office today to schedule a consultation, (215) 942-2100. Feel free to submit an online inquiry form, and a member of our team will contact you shortly.