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Custody Relocation- A Continuing Look At the Factors on Appeal

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A Court should consider the 10 relocation factors as well as the 16 custody factors when there exists no current order for custody and one parent desires to relocate.

Recently, in S.J.S. v. M.J.S., 2013 PA Super 227, 2013 Pa. Super. LEXIS 1706, 2013 WL 4009151 (Pa. Super. Ct. August 7, 2013), the Superior Court reviewed a case where mother and father shared physical custody by agreement.  Father, had the children on weekends and saw them on Wednesdays.  There was no order establishing this custodial schedule.  Mother decided she wanted to relocate with the children from Erie, PA to Bucks County, PA.  A seven hour driving difference.

The trial court engaged in an analysis under both the child custody relocation factors, 23 Pa.C.S. 5337, as well as the 16 custody factors, 23 Pa.C.S. 5338.  In fact, it issued two separate orders and opinions on the invidividual tests.  It noted in its decision, that the Gruber analysis is still alive, albeit within Section 5337(h)(6)-(8).  (See blog article links to New Relocation Factors Under 2010 Custody Law and Factors Considered in An Award of Custody in PA under New 2010 Statute)

In denying the relocation, the court viewed mother's request as a way of "getting away from the father."  She had no real job opportunity and her reasons for desiring the move were nebulous.  The court re-iterated the long standing test of examining what is in the children's "best interests". 

"Our concern in any custody or relocation matter is the best interest of the child, which considers all factors, on a case-by-case basis, that legitimately affect a child's physical, intellectual, moral, and spiritual well-being."

If you are involved in a custody dispute and one party would like to relocate with the child(ren), there are 10 factors that the courts must weigh heavily.  Further, the court's decision on these factors must be in writing.  If there is no custody order, then the court must also engage in an analysis of the 16 factors for determining primary custody.  Again, this must be in writing.  You need to have competent legal counsel assist you in determining your best options and strategy.  You may contact Shaffer & Engle Law Offices, LLC toll free or email us today.

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