Custody Relocation Notice is Not Tacit Admission, says Superior Court
March 31, 2012 | Child Custody, Divorce, Legal Perspective
In CMK v. KEM (March 27, 2012), the Superior Court took up the case of a mother who followed the notice procedures for custody relocation under the 2011 custody statute. She sent a notice to her child’s father, advising him that she intended to move from Grove City, Mercer County, to Albion, Erie County, a distance of 68 miles. Father objected to the relocation, and the trial court held a hearing, ruling against relocation.
In her appeal, Mother argued that this case was not truly a “relocation” case because the proposed move would not significant impair Father’s ability to exercise his custody rights. In fact, she contended, the move would increase Father’s partial custody by substituting an addtional one weekend per month in place of his Wednesday night dinner periods. Father and the trial court disagreed, noting that Mother’s act of sending a relocation notice under the statute was a tacit admission that her proposed move was a relocation.
On appeal, the Superior Court affirmed the overall result, finding that the trial court did not err in denying relocation. In its opinion, the Superior Court dispelled the notion that Mother’s procedural compliance was a tacit admission of a relocation. The Court held that a party is not foreclosed from litigating any issue, including the issue of whether the proposed move is a “relocation,” when the relocation procedures are properly followed. The Court also held that the potential threat to Father’s custodial rights, and the impact on his ability to participate in the children’s activities during his noncustodial time, were sufficient to establish a relocation.