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Application of Custody Relocation Law

Section 5337 of the new custody laws sets out the procedures and standards for relocation requests. E.D. v. M.P., 2011 PA Super. 238, is one of the first cases to apply the new relocation law. In E.D. v. M.P., Mother appealed after the lower court granted Father's relocation on the grounds that Father didn't comply with the provisions of Sec. 5337 among other issues.

First, the Superior Court found that the new law did apply in this instance since Father filed his petition for special relief in the form of relocation on January 25, 2011 and the new law came into effect on January 24, 2011. Under the new law, the first error was Father's filing of a petition and Mother's filing of an answer. Under Sec. 5337 (c) regarding notice of relocation, the initial step procedurally is for the party requesting relocation to send notice to all other interested parties by certified mail, return receipt requested a certain number of days prior to the date set for relocation. Included with the notice should be a counter-affidavit that the opposing party can complete indicating whether or not they agree or disagree with the relocation and/or the modified schedule. If there is any opposition, a hearing will be needed. The counter-affidavit evidencing opposition should be filed with the court and served on the party requesting relocation in the same manner as received; by certified mail, return receipt requested. The next error relates to Sec. 5337 (g) which calls for a hearing to occur before relocation unless exigent circumstance exist. In E.D. v. M.P., the lower court granted Father's request to relocate immediately without any finding or allegation of exigent circumstances.

Further, Sec. 5337(h) outlines the factors to be considered before a relocation is granted. Those factors include: (1) Nature, quality, extent of involvement and duration of child's relationship with party proposing to relocate and with the non-relocating party, siblings and other significant persons in the child's life; (2) 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) Feasibility of preserving the relationship between the nonrelocating party and the child through suitable custody arrangements, considering logistics and financial circumstance of the parties; (4) 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 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; and (10) Any other factor affecting the best interest of the child. The party proposing relocation has the burden of establishing that the relocation will serve the best interests of the child. Each party has the burden of establishing the integrity of that party's motives in either seeking the relocation or seeking to prevent it. The Superior Court agreed with Mother that the lower court failed to consider all the factors under Sec. 5337(h) in reaching its decision.

Ultimately, the case was remanded to the lower court for further proceedings applying the applicable laws. The decision indicates that the Superior Court will be diligent in scrutinizing decisions to determine if they have followed the provisions of the new law. This is true in relocation just as it is in standard custody decisions under Sec. 5328 of the custody laws.

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