Early last year, Pennsylvania's new Child Custody Act (23 Pa.C.S.A. §§ 5321 et seq) went into effect. One notable change that the statute made was regarding the issue of relocation, which it generally defines as "a change in a residence of the child which significantly impairs the ability of a nonrelocating party to exercise custodial rights" (23 Pa.C.S.A. § 5322). Under Pennsylvania law, a child can only be relocated with the consent of the nonrelocating parent, or with court approval following a hearing. Prior to the new Child Custody Act, the courts used as guidance precedent from cases such as Gruber v. Gruber, which proscribed a three-prong test for considering relocation. Additionally, the courts seemed to support a "trickle down" theory--approving relocation "if the custodial parent significantly benefits from the move the benefit flows to the child." The new statute clearly does away with this "trickle down" approach, and instead introduces 10 factors to consider, which consider both the benefits to the relocating parent as well as the best interests of the child.
The Superior Court recently faced its first decision regarding the issue of relocation under the new Child Custody Act in E.D. v. M.P. . In this case, a father who had been granted primary custody filed a petition seeking permission to relocate from Pennsylvania to New York because of an opportunity to advance his career. After a trial court granted the relocation, the mother, who had been awarded partial custody and visitation, appealed, claiming that the court should have applied the ten-factor test from the newly enacted Child Custody Act in making its decision.
Although the family's original custody arrangement had been reached in 2009, before the new Act, the Court reasoned that the legislative intent behind the Act was for it to apply to all child custody proceedings commenced after the Act went into effect, including a Petition for Relocation modifying a prior arrangement. Thus, the Court remanded the case back to the trial court, to make the proper analysis under the new Child Custody Act. Under the new statute, the court must consider these ten factors in deciding whether to grant relocation:
(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.
(2) The age, developmental stage, needs of the child and the likely impact the relocation will have on the child's physical, educational and emotional development, taking into consideration any special needs of the child.
(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.
(4) The child's preference, taking into consideration the age and maturity of the child.
(5) Whether there is an established pattern of conduct of either party to promote or thwart the relationship of the child and the other party.
(6) Whether the relocation will enhance the general quality of life for the party seeking the relocation, including, but not limited to, financial or emotional benefit or educational opportunity.
(7) Whether the relocation will enhance the general quality of life for the child, including, but not limited to, financial or emotional benefit or educational opportunity.
(8) The reasons and motivation of each party for seeking or opposing the relocation.
(9) The present and past abuse committed by a party or member of the party's household and whether there is a continued risk of harm to the child or an abused party.
(10) Any other factor affecting the best interest of the child.
(23 Pa.C.S.A. § 5337
Thus, the recent case of E.D. v. M.P. shows that, in preparing for a relocation hearing, these ten factors should now specifically be referenced and considered at trial, even for modifying custody arrangements that predate the new Act.