Relocation and its Impact on Existing Custody Orders

The Court’s procedure in relocation of a parent with some custody of a minor child has been codified at 23 Pa.C.S.A. 5337(h):

“(h) Relocation factors. – In determining whether to grant a proposed relocation, the court shall consider the following factors, giving weighted consideration to those factors which affect the safety of the child:”

“(1)      The nature, quality, extent of involvement and duration of the child’s relationship with the party proposing to relocate and with the nonrelocating 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 nonrelocating 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 factors to consider in relocation interplay with the sixteen factors set forth in statute, 23 Pa.C.S.A. 5328(a), effective January 1, 2014, in determining child custody:

(1)        “Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.”

(2)        “The present and past abuse committed by a party or member of the party’s household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.”

(3)        “The parental duties performed by each party on behalf of the child.”

(4)        “The need for stability and continuity in the child’s education, family life and community life.”

(5)        “The availability of extended family.”

(6)        “The child’s sibling relationships.”

(7)        “The well-reasoned preference of the child, based on the child’s maturity and judgment.”

(8)        “The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.”

(9)        “Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.”

(10)      “Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.”

(11)      “The proximity of the residences of the parties.”

(12)      Each party’s availability to care for the child or ability to make appropriate child-care arrangements.”

(13)      “The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another.  A party’s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.”

(14)      “The history of drug or alcohol abuse of a party or member of a party’s household.”

(15)      “The mental and physical condition of a party or member of a party’s household.”

(16)      “Any other relevant factor.”

Recently, in the case of A.V. v. S.T., 1782 MDA 2013 (2014 PA Super 48), President Judge Gantman, writing for the Court outlined the interplay of the two.

The case involved a Luzerne County Court of Common Pleas custody and relocation litigation on appeal.  The parties were an unmarried Mother and Father of three minor children.  While still living together, the parties obtained an agreed upon Court Order for shared legal custody for the children on a week on, week off equal basis.  Before that Order, the Mother petitioned for relocation.  After the entry of a shared physical and legal custody, on a 50/50 basis, the Court granted Mother’s petition for relocation to New Jersey and, as part of that decision, modified the Custody Order so that the Mother was the primary custodian.

Primary physical custody is defined at 23 Pa.C.S.A 5322 as, “the right to assume physical custody of the children for the majority of time.”  Partial physical custody is defined as, “the right to assume physical custody of the child for less than a majority of the time.”  Shared physical custody is defined as, “the right of more than one individual to assume physical custody of the child, each having significant periods of physical custody with the child.”

In the first Order, before the relocation, the periods of physical custody were equal between Mother and Father.  After relocation, and apparently because of the distance between the parties, one of the parties, in this case the Mother, was given primary custody with substantially smaller period of custody to the Father.

Father indicates that in making its decision the Court only considered the factors for relocation as set forth in Section 5337(h), being ten factors, and not the sixteen factors set forth for determining custody at Section 5328(a).  After reviewing the express language of the statute, the Court agreed.

“When deciding a petition to modify custody, a Court must conduct a thorough analysis of the best interests of the child based on the relevant section 5328(a).”

Section 5323(d) provides that a trial court must delineate the reasons for its decision on the record in open court or in a written opinion or order.

In the instant case, the Court seemed to adopt the brief of the Mother in delineating the reasons for its decision.  The Superior Court noted that the Supreme Court has condemned the practice of making wholesale adoptions of a party’s brief in lieu of filing of a considered opinion.  In the instant case, when the Court changed the physical custody award to Father from “shared physical custody” of two weeks per month to “partial physical custody” of two weekends per month, the Court was required to apply all of the factors relevant and failed to do so.

The Court stated:

“In all, the Court’s failure to make the required application of Section 5328(a) while dramatically changing custody as well as the omission of an independent and reasoned application of Section 5337(h) are errors which require us to vacate the September 20, 2013 “relocation” order and remand for further proceedings.”