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Child Custody- New Statute Affects Older Cases

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The New Child Custody Law became effective on January 24, 2011 and equally applies to cases old and new.

By Attorney Nichole A. Collins, Child Custody Attorney, Harrisburg, PA

The often asked question when a new law passes is "which law applies to my case...the new one or the old one?"  The new child custody law became effective on January 24, 2011 and applies to all custody cases, whether they began prior to its passage.  In ED v. MP, the Superior Court answered this question with regard to the 2010 child custody law.  There the Court stated as follows:

  • Under the alternative interpretation, the provisions of the old Act (repealed under section 2 of the new Act) would continue to apply to all aspects of every custody action filed before January 24, 2011-and would continue to apply in those actions for many years into the future, an absurd and unreasonable result. Because in our view the legislature intended for the provisions of the new Act to apply to all matters relating to child custody after the Act's effective date, the new Act applies to all custody proceedings commenced after January 24, 2011.
  • The Child Custody Act also implements changes to requests to modify existing custody orders. Section 5338 provides that, upon petition, a trial court may modify a custody order if it serves the best interests of the child. 23 Pa.C.S.A. § 5338. Section 5328(a) in turn sets forth a list of sixteen factors that must be considered in a best interests of the child analysis in making any custody determination. 23 Pa.C.S.A. § 5328(a). Accordingly, when a party files a petition for modification of a custody order, the trial court must perform a 'best interests of the child' analysis considering all of the section 5328(a) factors.  2011 WL 5392990 Superior Court of Pennsylvania. E.D., Appellee v. M.P., Appellant. No. 995 MDA 2011. Nov. 9, 2011.

There, a relocation issue arose between the parents.  The order they had in place was issued prior to the new law's effective date.  The Court was to assess whether it would apply the Gruber three factor test (old law) or the new law's 16 factor analysis.  The Court came down on the side of applying the new law to existing cases.  The new procedure would apply as well.

It is important to note that the new procedure for relocation cases is not the old petition-and-answer protocol.  Rather, the new 2010 custody act requires some specific steps:

  • The party seeking to relocate does not make an initial filing with the trial court, but rather sends by certified mail to every other party with custody rights a notice in accordance with subsection 5337(c).
  • In addition to the other information listed therein, a subsection 5337(c) notice must contain (1) a proposed revised custody schedule, and (2) a counter-affidavit in the form set forth in subsection (d).
  • A party receiving a 5337(c) notice who objects either to the relocation or to the terms of the proposed revised custody schedule must complete the counter-affidavit included in the notice and file it with the trial court within thirty days.
  • When the trial court receives a counter-affidavit containing an objection either to the relocation or to the proposed revised custody schedule, pursuant to section 5337(g) it must hold an expedited full hearing before the relocation occurs, unless it finds that exigent circumstances require approval of the relocation prior to an expedited full hearing.

If you are involved in a Child Custody Case and planning to relocate or the other party has sent you a notice that they intend on relocating with the child(ren), you should seek advice of competent counsel immediately.  We have extensive experience with child custody relocation cases and can assist you promptly and effectively.  Contact Shaffer & Engle Law Offices, LLC toll free or email us today.

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