In January 2011 the Pennsylvania legislature passed a new custody statute, 23 Pa.C.S.A., Section 5337, which included reforming the procedures regarding custody relocation. Unfortunately for practitioners and litigants, although the new statute is long on specifics on the factors to consider when pursuing relocation, it is short on what is considered a “significant impairment” of custody due to the relocation and whether filing for relocation is a tacit admission that one’s matter is, in fact, a relocation matter. Fortunately, the recent case of C.M.K. v. K.E.M., 45 A.3d 417 (Pa.Super.2012) helps clarify these gray areas in the new custody statute.
Under the new custody statute, a parent must petition the court for permission to relocate before doing so, or suffer the risk of being sanctioned and being recalled from his/her new location if maintaining custody in the new location is denied by the court. What precisely defines “relocation” is unclear from the language of the statute. The statute vaguely defines “relocation” as something which “significantly impairs the ability of the non-relocating party to exercise custodial rights”; but what exactly is a significant impairment? Is a move 30 miles away a significant impairment? What if the 30 miles takes an hour to drive? What if the moving parent does not believe his/her move is a relocation? If s/he moves presuming his/her situation is not a relocation, but is wrong in that presumption,s/he may be sanctioned for making the move. Yet, if the parent’s presumption is correct, that his/her situation is not a relocation, but plays it safe and petitions to relocate anyway, is filing for the relocation a tacit concession that his/her attempt to move is a relocation?
In C.M.K., the Child was six (6) years old and in the second grade. He enjoyed his school, had many friends, and was involved in multiple sports. In fact, the Child was potentially a candidate for the gifted program at his school. The Child’s Father enjoyed a thriving relationship with his son, having partial custody of him every other weekend and every Wednesday night. In addition, Father would attend many of the Child’s sporting events, school activities, teacher/school meetings, and medical appointments. Furthermore, Father’s family, especially his parents, also had regular contact with the Child. Father’s parents would have dinner with the Child each week during Father’s Wednesday custodial time. Interestingly, the Child’s Mother also had dinner with the Child and Father’s parents every Monday night, as well as having used them for her baby sitting needs.
In petitioning for relocation, Mother argued that her proposed new residence was only sixty-eight (68) miles away, a distance not prohibitively far to drive. She further argued that the Child’s new school was smaller, with potentially more individual focus, than his present school. Mother was also moving closer to her own family which she believed would benefit the Child. Mother selected a three (3) bedroom mobile home on 2.5 acres of land to move to. Finally, as a way to help mitigate Father’s inconvenience, she offered him an approximately additional twenty (20) hours of custody time with the Child which would enable Father not to lose any total custody hours due to her relocation.
In deciding this case, the Court made two significant rulings. The first was simply to clarify whether there is a procedural vulnerability for someone who elects to “play it safe” and petition for relocation, even if the petitioner did not believe his/her case to be a relocation matter. The Court made it abundantly clear that someone who files for relocation does not tacitly concede that the case is, in fact, a relocation case.
The Court also clarified how it determines whether a party’s custody is “significantly impaired” in order to warrant identifying a case as a relocation matter. If a move does not “significantly impair” a party’s custody, then the matter is not a relocation matter and proceeds like a typical custody matter. Further, the Court also provided insight into specifically how the ten (10) relocation factors from Section 5337(h) apply to a custody case once it is determined to be a relocation matter in order to justify and/or permit the relocation to go forward. The Court made it clear that simply the number of hours of custody is not the only element to the analysis. The Court looks at the quality of custody as well.
In C.M.K. the Court ruled that Father had a very integrated and involved parenting relationship with the Child and Mother. Mother moving away such a distance would prevent Father from, as was his established practice, attending the Child’s sporting events and school functions, and so on; it would also prevent Father’s parents, as was their long- established practice, from spending their customary time with the Child. To put it simply, the Court believed that Mother’s proposed relocation would significantly impair Father’s established custody practices. Therefore, as the Court ruled that what Mother was proposing was a “significant impairment” of Father’s custody, the Court established Mother’s case to indeed be a relocation case.
Now established as a relocation matter, Mother had the burden to demonstrate that the relocation justified the “significant impairment” of Father’s custody per the ten (10) relocation factors from Section 5337(h). The Court simply did not believe that what Mother presented as her advantages in moving were sufficient to justify imposing a “significant impairment” on Father’s involvement with the Child. The Court believed that causing the Child to move away from, not just his Father’s involvement, but also the Child’s sports teams, involved grandparents, friends, and potential gifted program, would be detrimental to the Child and not outweighed by the alleged benefits of the move claimed by Mother. Indeed, the Court noted that Mother’s parents were not quite as integral to the Child’s life as Father’s parents and Mother’s economic benefits for moving were speculative at best.
Therefore, in sum, this case has two lessons. First, filing for relocation is not a tacit concession that one’s move is in fact a relocation. Second, the Court looks at all aspects of a Child’s custody and lifestyle when determining whether a relocation is beneficial for the Child and is a “significant impairment” of the other party’s custody.
Originally published on December 17, 2012 in Upon Further Review and can be seen here and reprinted in The Pennsylvania Family Lawyer in Volume 35 Issue No. 1 (March 2013).