Relocation of a child is a tricky situation at best and is a move that is fraught with pitfalls. The bottom line is that one of the common issues in divorce is the establishment and growth of a new relationship with a paramour from either the man or woman. The parent desires to co-habitate with the new paramour and makes the decision that he or she wants to move to a different county or venue in the Commonwealth of Pennsylvania or some other location out of state. This is not an unfair desire and frankly can arise from a truly wonderful relationship with the paramour not only being a fantastic boyfriend or girlfriend, husband or wife, but also a good and loving influence on the children. There is no judgement here on the reasoning of the parent to move but the reality is that if the other spouse decides that the move is not in the child’s interests, you are almost invariably in Court arguing the need and effect of the move on the children.
The factors that a Court must use in determination as to the allowance of a relocation are as follows pursuant to statute23 Pa.C.S. § 5337 :
- (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.
- (i) Burden of proof.
- (1) The party proposing the relocation has the burden of establishing that the relocation will serve the best interest of the child as shown under the factors set forth in subsection (h).
- (2) Each party has the burden of establishing the integrity of that party’s motives in either seeking the relocation or seeking to prevent the relocation.
Interestingly in B.A.Z. v. M.A.B., 2013 Pa. Super. Unpub. LEXIS 2020, the father, three days after the Court had issued a custody order making the father the primary parent, with partial custody residing in the mother, relocated the child without notification to a new school district. Although this appeared on its face to be a violation of the statue, the Court ruled that since the move did not have an appreciable effect on the amount of time the mother could spend with the child, that it did not seem to “count” in the Court’s eyes as a relocation. What this seems to indicate is that relocation can be defined as a movement far enough away from the other parent to affect the parent’s time with the child. The trial Court noted that the father had not provided adequate notice but also noted that the Court had also held an emergency hearing at which time objections to the relocation were made and the mother’s rights to procedural due process were addressed. So, the Court felt that although the letter of the law was violated the general spirit was observed.