Act 112: Section 5337 - Relocation (part 2)

Section 5337. Relocation continued;

Part 2. Standards

Once the procedures of 5337 have been followed (see Part 1) and a timely objection has been filed, the court will hold an "expedited" (i.e. fast) hearing. The actual speed of the relocation hearing will depend on the court's calendar and the need (if any) for "discovery".

At the relocation hearing, the court must consider the following factors. It is best to think of these factors as tools in determining the "best interests" of the child. Best interests are always central in custody. Those factors which affect the safety of the child must be given "weighted" consideration towards the child's best interests.

Factor (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".

Essentially, a party seeking relocation is more likely to succeed if the other party has had a limited role in the child's life. A party having shared physical custody of the child is more likely to prevent a relocation than a party having "every other weekend" custody. This is often a vital part of the relocation calculation.

In addition, the court is often reluctant to split up siblings who have a close and consistent relationship.

Factor (2) The impact a relocation would have on the child's development, taking into consideration the child's age and any regular or special needs.

This is a vague factor that tells the court to look into how a relocation would effect the child's growth and development. It could include educational, emotional and physical development.

Factor (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."

This factor looks at whether the parties can (for example) afford plane tickets that would preserve the relationship with the non-relocating party. Also, whether the child is old enough to travel regularly. In addition, this factor is related to Factor (1), because it will be easier to "preserve" an irregular custody relationship than a shared physical custody relationship.

Factor (4) " The child's preference, taking into consideration the age and maturity of the child".

The court will not generally care about the preferences of a 3 year old child, since the child is not old enough to have rational preferences or to combat a parents preferences. Conversely, a 15 year old who wants to move for good reasons will be given weight. However, the decision is NEVER left to the child. The child's best interests always trump their preferences. Instead, the child's rational preferences can be an important part of their best interests.

Factors (5), (8) look at whether the non-relocating party has tried to thwart the other parties' custody relationship in the past or engaged in parental alienation. Also, the court looks at whether a party is seeking the relocation (or to prevent relocation) for good reasons or just to "stick-it" to the other party.

Factors (6), (7) look at whether the relocation will enhance the quality of life of the party seeking relocation or benefit the quality of life of the child. In practice, the quality of life of the parent is only important if the benefits "trickle down" to the child. For example, a parent earning more money who can better support for the child or a parent with more family support who can better care for the child.

Factor (9) looks at past abuse of a child by a parent or household member and the continued risk of abuse to the child.

This factor alone is to be given "weighted" consideration by the court. So, abuse can be the most important factor in relocation. False allegations of abuse could also be important under factors (5) and (8) above.

The problem I see is where the "abuser" maintains some custody of the child. In that case, the abuser could potentially benefit from the abuse. After all, couldn't relocation away from the abuser harm the child by making it more difficult to oversee the abuser's custody periods?

Factor (10) covers "any other factor affecting the best interest of the child.". Relocation is a very case specific area of the law and literally anything that affects the best interests of the child can be relevant.

Every case is different and completely dependent on its own facts. This is not an area of law where the lay person can read the law and predict an outcome. Understanding the judge, "best interests" and the informal hierarchy of factors are all key.

Although any factor can be relevant, smart and experienced counsel will concentrate on the most important factors and on creating a compelling narrative. Important factors often include the existing level of custody, employment situations, siblings, distance and abuse. But the important factors can change on a case-by-case basis.

The party seeking relocation has burden of proving that the relocation will serve the "best interests" of the child, as set forth by the factors.

Failure to provide reasonable notice prior to relocation can be a factor in determining relocation, or lead to contempt or counsel fees or be the basis for the return of the child. But failure to provide notice can be mitigated if it was caused by the abuse of the child.