PA Superior Court Confusingly Applies Relocation Factors and Relocation Burden in a Case Not Involving Relocation

The Pennsylvania Superior Court has issued a confusing opinion regarding child custody relocation. In this case, neither parent wished to relocate. The mother resided with the child in Pennsylvania. Father resided in Germany. Father filed a petition for primary custody and a notice of proposed relocation in which he requested primary custody of the child. In short, Father requested that the child’s primary residence be transferred from Pennsylvania to Germany. The trial court considered both the custody factors and the relocation factors. The trial court entered judgment in favor of Father for relocation and awarded him primary physical custody. Mother appealed.

The PA Superior Court repeated existing law, citing prior Superior Court decisions, which is that the relocation provisions do not apply when both parents have lived in their current residences for some time, and neither parent is moving. It states the Legislature anticipated there would be a relocating party and a non-relocating party (a child is not a party) for the relocation provisions to apply. So, the Court determined that Father was not required to comply with the relocation procedures (i.e. providing 60-days advance written notice of intent to relocate with blank counter-affidavit to the non-relocating party) because neither party was or intended to relocate. Thus, this was not a relocation case.

However, the PA Superior Court also held that the relocation factors should be considered because the relocation factors are per se relevant to the custody factors where “the child would be moving to a significantly distant location.” White v. Malecki, 2023 Pa. Super. LEXIS 252, *6. Interestingly and more confusingly, “significant distance” is not the standard for relocation. The standard for relocation is “a change in a residence of the child which significantly impairs the ability of a nonrelocating party to exercise custodial rights.” (However, one may reasonably conclude that a parent moving a “significant distance” meets that definition). So, in short, even though this case was not a relocation case because neither party was relocating, because the child would be moving a “significant distance,” under the Father’s proposed relocation the PA Superior Court announced the trial court was correct to consider the relocation factors in addition to the custody factors.

What’s the burden of proof? In a relocation case the party proposing the relocation has the burden of proof. In a custody case not involving relocation each party shares the burden of proof. In this case, the PA Superior Court ruled:

However, in the type of case at issue here — where only the child stands to move a significant distance — the burden each parent shoulders is substantially similar to that of Section 5337(i) [that’s the relocation burden]. Put another way, Father requested primary custody so the Child could move from Mother's home in the United States to his home in Germany; thus, Father had the burden to prove that the move would be in the Child's best interest. Mother, by contrast, had the burden of proving that an award in her favor — not Father's — was in the Child's interest.

White v. Malecki, 2023 Pa. Super. LEXIS 252, *10

The court declares that it has “clarified the burden.” I’m not so sure. In essence, it states that in a non-relocation case involving a child moving a “significant distance,” the burden each parent shoulders is substantially similar to that of Section 5337(i) (i.e. the relocation burden). However, if each parent shares the burden, then that is NOT the burden under Section 5337(i) which is the burden for relocation cases. In a relocation case, only the relocating party has the burden. What the Superior Court held, it seems to me, is that the burden in this case was the same as a non-relocating custody case, which is that each parent has the burden to prove that what they are asking for is in the best interest of the child.

Another interesting point is that the PA Superior Court cited existing law that holds the relocation provisions do not apply when the parents are not changing residences. However, the definition of relocation, again, is “a change in the residence of the child which significantly impairs the ability of a nonrelocating party to exercise custodial rights.” So, the definition of relocation requires a change in the child’s residence, but the courts hold that relocation does not apply unless a parent is changing his or her residence. Go figure.

If you have questions or concerns about relocation or custody, do not hesitate to contact Scaringi Law at 717-657-777.