New Custody Statute

Signed into law on November 23, 2010, taking effect on January 24, 2011, is a major new custody statute which in some respects codifies some existing law, but also has very significant changes in certain areas, including relocation. An overview of this law is such that it defined the different types of custody so that custody is now categorized as primary physical custody, partial physical custody, shared physical custody, sole physical custody, supervised physical custody and under legal custody, shared legal custody or sole legal custody. There is no such legal terminology as visitation any longer. Legal custody is then explained. It covers medical, dental, religious and school records. The issue of standing as to who can file for custody is also addressed. It talks about the parent of any child, a person standing in loco parentis and a grandparent, not in loco parentis having standing under certain circumstances, and also it goes into detail as to great grandparents as well having standing. It gets into factors that the court should consider in a custody matter and 16 factors are delineated. It also factors in a great deal of concern regarding past criminal convictions or violence against any of the children. It also talks about that a parenting plan that should be prepared deals with and about schedules, child care, and transportation and preparation of such a plan. This will help in the thinking out of the case.

The major changes in the statute deal with relocation issues. A party proposing relocation shall notify every individual by certified mail no later than the 60th day before the date of the proposed move or the 10th day after the date the parties knows of the move, so long as the party did not know or could not have possibly complied with the 60 day notice, and it is not reasonably possible to delay the date of the move to comply with the 60 day notice rule. Notice must contain the address of the new residence, mailing address, names and ages of people at the new residence, telephone number of the new residence, name of the school district and the school, date of proposed relocation, reasons for relocation, a proposal of a revised custody schedule and any other information deemed appropriate, and a counter-affidavit. If the non-relocating party fails to object within 30 days of receipt of notice, the party shall be foreclosed from objecting to relocation. The non-relocating party may file objections, seek permanent or temporary order to prevent relocation. The relocating party has a duty to update information as it becomes available. If no counter-affidavit is filed, it is the presumption that the non-relocating party has consented to the relocation. If proper notice is given, and no counteraffidavit is filed, and later the non-relocating party petitions the court for review of custodial arrangements, the court shall not accept testimony challenging relocation. If no objection is filed, then the party proposing relocation shall file an affidavit stating that notice was provided, the time for objection has past, and no one has filed for objections. They have to file proof that proper notice was given, and a petition to confirm relocation and a proposed order.

There are several factors for the court to consider regarding relocation and the party trying to relocate has the burden of proof.

There are many other facets to this Act and a link to this Act is located at, also known as HB1639 (Printer No. 4468).  It is also available on the Montgomery County website

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