There may come a time when you may need to relocate because of a job a change in love life, a move nearer to a support system or some other reason. Under Section 5337 (23 Pa.C.S. § 5337) of the Pennsylvania Child Custody Law a party wishing to relocate must provide notice prior to moving, to which any party entitled to receive notice may file objections. As a practical matter this means that the other parent in custody can file objections to the relocation and obtain a hearing before the Court
However, before a Court may approve a proposed relocation several things must occur. First, the party proposing relocation shall notify every other individual who has custody of the child, and inform them of the particulars of the proposed move. § 5337(c) (1)-(4). Next, if a non-relocating party files an objection to the proposed relocation, the trial court is required to hold the aforementioned hearing in which the party proposing relocation has the burden of proving that the move would serve the child’s best interest considering the factors set forth in § 5337(h) (1)-(10). § 5337(d), (g), (h) and (i). Absent exigent circumstances that warrant relocation prior to the evidentiary hearing, the trial court will not approve the move until a full consideration of all the relevant statutory factors addressed during the hearing. § 5337(g). The bottom line here is that it is a mistake to just move without obtaining Court approval first.
In J.M. v. K.W., 2017 Pa. Super. LEXIS 390, *1-2, 2017 WL 2351519 (Pa. Super. Ct. May 31, 2017) the children’s mother at issue, filed a counterclaim to the custody complaint and issued notice of her proposed relocation with the children from her residence in Pottsville, Schuylkill County, to Lancaster, Lancaster County, approximately one-and-one-half hours away. Father filed a counter-affidavit objecting to Mother’s proposed relocation. However, (and here is the important part) prior to obtaining the trial court’s authorization under § 5337, Mother relocated with the children to Lancaster during May 2015, and she purchased property in that county two months later.
Father responded to the move by filing a petition for special relief and contempt. During the contempt hearing, Father established that Mother had relocated to Lancaster without prior court approval and enrolled one of the children in a Lancaster-area preschool without Father’s knowledge or consent. The trial court entered the above-referenced order that found Mother in contempt, and, as a sanction, reduced her custodial rights from primary physical custody of the children to shared custody. The order was to remain in effect until the underlying custody dispute was resolved. The trial court also awarded Father attorney fees.
The mother appealed and the Court upheld the finding of contempt but it did not uphold the change in custody awarded by the Court.
The take away here is that the mother essentially got lucky here not having the Court take custody from her. Please note that the Court can permissibly change custody – but made the custody award a change as punishment for contempt other than based upon a motion for special relief – which would have allowed the change. As a sanction however, a custody change is impermissible.