Improper Custody Relocation

Pennsylvania’s custody relocation statute, 23 PA C.S. 5337, requires the party seeking relocation to get court approval or the other parent’s permission prior to relocation. A relocation is defined as any move that would “significantly impair the ability of the nonrelocating party to exercise custodial rights.” Procedurally, the party intending to relocate should give at least 60 days notice or notice as soon as possible after they have knowledge of the relocation. A full hearing on the relocation should be held prior to the move if the relocation is contested. In addition to addressing the 16 factors to consider in any custody award, the moving party must also address the 10 relocation factors. The moving party has the burden of proof to show relocation will serve the best interests of the child(ren) and that there is no improper motive in seeking to move.

Failure to abide by the procedures listed in the statute has consequences. Specifically Section 5337(j) discusses the ramifications for failure to provide adequate notice and follow the appropriate channels. The court may consider the lack of notice as a factor when making a final determination on the relocation and whether custody rights should be modified. The court can also view the lack of notice as a basis for ordering the return of the child to the jurisdiction. The court may order the party who improperly relocated to pay attorneys fees and expenses on behalf of the party who must initiate litigation to indicate their opposition to the relocation. The court can also treat it as a matter of contempt and impose sanctions against the moving party. Finally, 5337(l) explains the court is not permitted to confer any presumption in favor of the relocation where it occurs before the court holds a final hearing.

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Increase/Decrease in Asset Value

Property acquired prior to the marriage or in exchange for said property is not marital however the increase in value of that property during the marriage is up for distribution. Pursuant to 23 Pa. C.S. §3501(a)(1), any increase in value for non-marital or separate property should be measured from the date of marriage or date of acquisition through the date of separation or date close to the equitable distribution hearing, whichever date results in a lesser increase. This provision is intended to protect the party with the interest in the non-marital property in situations where there may be a lengthy time period between when the parties separate and when they get to the point of dividing the property.

Section 3501(a)(1) also discusses the potential for offsets in any increase in non-marital property by a decrease in non-marital property. Accordingly, if Wife had an increase in non-marital property as well as a decrease in non-marital property of the same amount, the two occurrences would cancel each other out. However, if the increase is greater than the decrease, the increase would be reduced by the extent of the decrease for a net value. This rule applies to the non-marital property of each spouse. In other words, Wife’s increased value in non-marital property can only be offset by her decreased value in non-marital property, not Husband’s, and vice versa.

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Guardian Ad Litem

A guardian ad litem (GAL) is an attorney the court appoints to represent the best interests, and often times the legal interests, of a child in a court proceeding. Once appointed, the GAL should participate in all future proceedings as necessary to continue to ensure the child’s interest. By law, the GAL is mandated to meet with the child as soon as possible following appointment. Additionally, the GAL should review all the relevant records related to the case and conduct further investigation as deemed necessary. Further investigation may include speaking with the child’s parents and/or guardians as well as interviewing other potential witnesses.

The GAL’s ultimate responsibility to the court is to make specific recommendations for an order that will address the child’s safety and provide for his or her best interests. The GAL’s responsibility as it relates to the child is to explain the proceedings to the child in a manner that they can understand. Additionally, the GAL is to explain the child’s position to the court along with any evidence in support of their position. A GAL must be appointed in any case where it is alleged that the child is a dependent. A GAL may be appointed in other instances such as custody cases or Protection from Abuse cases involving the child. It is possible that a child can be appointed a GAL to protect their best interests and a separate attorney to protect their legal interests.

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Non-Marital Property

Section 3501 of the Divorce Code defines what will be considered marital property versus what will be considered non-marital property. Specifically, marital property will include all property acquired by either party from the date of marriage through the date of separation. There is a presumption all property acquired during the marriage is marital regardless of how title is held (e.g. individually vs. jointly). It will also include the increase of value of any non-marital property during the course of the marriage. 23 Pa C.S. 3501 goes on to list what property will not be considered marital under the statute. Property acquired prior to the marriage or in exchange for said property is not marital as well as property expressly excluded by valid written agreement of the parties at any time.

Property received as a gift from any person other than the other spouse is not marital along with any property acquired after final separation but potentially prior to the entry of a divorce decree as long as marital property was not used in its acquisition. Any inheritance received is treated as a gift and will also be deemed non-marital so long as it is not subsequently commingled with marital funds. The court will also not look at property that was disposed of in good faith while the marriage was intact. An example would be property sold to a family member for its fair market value. Veterans’ benefits cannot be attached, levied or seized except in the case where a portion of the veteran’s retirement pay was waived in exchange for the benefits. Finally, any payment from a cause of action or lawsuit where the underlying claim occurred before the marriage or after separation.

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