J-A04045-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
R.N., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
R.L.S., :
:
Appellee : No. 1556 WDA 2014
Appeal from the Order Entered August 21, 2014
in the Court of Common Pleas of Allegheny County,
Family Division, at No(s): FD04-004218
BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 10, 2015
R.N. (Father) appeals from the order of August 21, 2014, which
awarded primary physical custody and sole legal custody of Re.N. and Ri.N.
(collectively Children) to R.L.S. (Mother) and permitted them to relocate.
We affirm.
Mother and Father were never married, and are the parents of two
daughters, Re.N. (born in 2001) and Ri.N. (born in 2009). The trial court set
forth the relevant factual and procedural history in its August 26, 2014
memorandum; therefore, we do not recite them herein. See Trial Court
Memorandum, 8/26/2014, at 1-2.
After a trial on August 7, 2014, and after considering all custody and
relocation factors pursuant to 23 Pa.C.S. §§ 5328(a) and 5337(h), the trial
court entered an order that provided the following, in relevant part: Mother
*Retired Senior Judge assigned to the Superior Court.
J-A04045-15
has sole legal custody; Children will attend Baldwin-Whitehall School
District; and, Mother had primary physical custody subject to periods of
partial custody by Father. Trial Court Order, 8/26/2014.
Father timely filed a notice of appeal and a concise statement of
maters complained of on appeal on February 27, 2014, and the trial court
filed its opinion on October 24, 2014.
Father states the following questions for our review.
[1.] Whether the trial court erred and abused its
discretion by ordering a change in custody and allowing for the
relocation of the minor children[.]
[2.] Whether the trial court erred and abused its
discretion in failing to dismiss Mother’s claim for primary physical
custody and relocation and ignoring the statutory requirements
regarding relocation including Mother’s pursuit of relocation for a
second time within a period of only six months after signing a
consent order of court regarding relocation, physical custody,
school district and legal custody in August of 2013.
[3.] Whether the trial court erred and abused its
discretion by not allowing various evidence and witnesses of
Father to be heard at the trial of this case over the request and
objection of Father’s counsel.
[4.] Whether the trial court erred and abused its
discretion in completely ignoring and in making no decision on
Father’ petition for contempt, sanctions and other relief which
was joined in to be heard concurrently with the trial of this case
by court order.
Father’s Brief at 4 (suggested answers and unnecessary capitalization
omitted).
-2-
J-A04045-15
Once a custody order is in place, a court may modify it on petition “to
serve the best interest of the child.” 23 Pa.C.S. § 5338(a). In performing
the best-interests analysis, a trial court is required to consider the factors
set forth at 23 Pa.C.S. § 5328(a). See E.D. v. M.P., 33 A.3d 73, 80 (Pa.
Super. 2011) (“[W]hen a party files a petition for modification of a custody
order, the trial court must perform a ‘best interests of the child’ analysis
considering all of the section 5328(a) factors.”). When a party seeks to
relocate, he or she bears the burden of proving that relocation will serve the
best interests of the child, as determined by consideration of the ten factors
listed at 23 Pa.C.S. § 5337(i)(1). In this case, with both relocation and
modification at issue, consideration of both sets of factors was required.
See, e.g., A.M.S. v. M.R.C., 70 A.3d 830, 836 (Pa. Super. 2013) (“The trial
court must consider all ten relocation factors and all sixteen custody factors
when making a decision on relocation that also involves a custody
decision.”).
Following our review of the certified record, the briefs for the parties,
and the relevant law, we conclude that the order and opinions of the
Honorable Mark V. Tranquilli correctly address and dispose of Father’s issues
and supporting arguments. Accordingly, we adopt the trial court’s order and
opinions of August 26, 2014 and October 24, 2014 as our own, and affirm
the trial court’s disposition of Father’s issues on the bases of those opinions.
-3-
J-A04045-15
The parties shall attach redacted1 copies of the trial court’s opinions to this
memorandum in the event of further proceedings.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/10/2015
1
Superior Court IOP 424 states, in relevant part: “No circulations or orders
of the court, including per curiam decisions, unpublished memoranda,
judgment orders and published opinions, shall include the names, addresses,
birth dates, and other information that would permit the identification of …
minors subject to or involved in … custody … proceedings. If information
pertaining to other individuals, such as the parents or guardians of the
minor, would readily reveal the above-prohibited information, that
information shall be redacted.”
-4-
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
FAMILY DIVISION
R. . N.• NO. F.D. 04-004218
PLAINTIFF,
VS.
Re L.S.
DEFENDANT.
ORDER OF COURT
BACKGROUND
The parties hereto, R. N.. (Father) age forty-one (41) and f4. 1.... $ .
(Mother) age fony-four (44) are the parents of two children born out-of-wedlock, Re .... '·
. di~1f 1 (12) and Ri!i'If ca.", 9 (5). Both children are healthy, well adjusted, intelligent
with no special needs.
Mother and Father's relationship began in 1998 and was erratic through 2001 when their
daughter Re.N. was born. After the birth, the parties resided as an intact family in Oakdale.
A.. Father's extended family, including his mother, paternal
grandmother, (hereinafter referred to as PGM) and his two (2) brothers and their families also
live in Oakdale. Father is employed at N ' s Garage, a family business located witLn miles of
his home. Mother grew up in Baldwin, PA and has family consisting of her father, maternal
grandfather (hereinafter referred to as MGF) and her sister and her family in Baldwin. Between
the years of2003 and 2008, Mother along with Re..... Jent significant time away from the
family home in Oakdale, and lived periodically in Baldwin as Mother helped care for her cancer-
stricken Mother at her parents' home located • &'\ '! Baldwin, PA. Since
the birth ofRi~ fln 2009, the parties and children lived in Oakdale, with Re,.~ attending school
at the West Allegheny School District and Ri~&l-attending a local preschool, Resurrection
Lutheran Preschool.
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After the children were born Father maintained full-time employment at the family
business. Mother is currently employed on part-time basis as a house cleaner.
The parties testified that the relationship between Mother and Father was consistently
plagued with verbal abuse and both parties alleged incidents of physical abuse.
On or about April 6, 20l3, Mother, without providing a Notice to Relocate, moved with
the children into maternal grandfather's home in Baldwin, PA. The oldest child, Re.te.l was
subsequently registered and began attending the Baldwin-Whitehall School District. It is
important to note that, during Mother's periodic residence in Baldwin (2003-2008), Re.. N.
attended preschool and kindergarten in the Baldwin-Whitehall School District.
After failed attempts to communicate with Mother, Father filed a Complaint in Custody
on April 17, 2013 1 seeking primary custody of the children. On May 6, 2013, while parties were
going through the Generations process an interim order was entered giving both parties shared
physical and legal custody, and setting forth that, absent an agreement between the parties,
Rei,j· '. and ki..lffwere to be returned to the schools they had attended in Oakdale. Parties did
not reach an agreement and the children finished the remainder of the 2012-20l3 school year at
.' the West Allegheny School District and the Resurrection Lutheran Preschool. A Consent Order
of Court-Custody was signed by the parties on August 14, 2013 in which they agreed to shared
legal and physical custody, outlining a 5-2-2-5 schedule. It was further agreed that Re.~a.l and
Ri~".would continue at their respective schools through the 2013-2014 school year and that
Mother would be responsible for transportation during her custodial periods.
Since the August 2013 Consent Order of Court-Custody, the parties have demonstrated
an inability to communicate and co-parent, as evidenced by the fact that the Court has been
inundated with upwards of twelve (12) motions to date. 2 On February 7, 2014 Mother filed a
Notice to Relocate and Father promptly filed an objection on February 12,2014. Both parties
desire primary custody and after attempts to conciliate this matter, the case was listed for trial on
August 7, 2014 before this Honorable Court.
1 Mother also filed a Complaint in Custody on April 17, 2013, however Father's was treated as first in time.
2 The Court notes that the majority of filings were on behalf of Fathe",
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Accordingly, the Court will analyze the case under both the physical custody and
relocation factors, beginning with the physical custody factors.
1. Which party is more likely to encourage and permit freguent and continuing
contact between the child and another party?
Mother was more accommodating in providing transportation for custody
exchanges, where Father demonstrated that he was unwilling to do so. Father, through a
narrow and unreasonable interpretation of an earlier Court order regarding the
transportation arrangements for Mother's custodial time, made it an onerous task for
Mother to exercise her custodial periods. Father provided comparatively little
transportation, and if Mother did not drive to Father's, she would not have received her
custodial time. Testimony revealed that Father required Mother, on her weekday
custodial periods, to drive from Baldwin to Oakdale and arrive at noon to pick up Rl,.r-I.
from pre-school and then stay there for several hours until Re .fti· was dropped off by
bus. In addition, based on Father's custody proposal, which places responsibility for all
transportation on Mother, it is clear to the Court that Father intends to persist in his
efforts to frustrate Mother's relationship with her daughters. Despite the animosity that
exists between the parties, Mother proposed a custody arrangement during the trial giving
Father every weekend if she were to be granted primary custody. Additionally, Re.N.
testified that Mother encourages her, despite Re.N. 'l'S unwillingness, to have consistent
telephone contact with Father. This leaves the Court with the impression that Mother is
the parent who is more likely and willing to encourage and support on ongoing
relationship with Father.
This factor favors Mother.
2. The present and past abuse committed by a party or a member of the party's
household, whether there is a continued risk of harm to the child or an abused party
and which party can better provide adequate physical safeguards and supervisjon of
the child.
Both parents alleged minimal physical abuse towards each other and considerable
verbal abuse, but the Court found it to be mutual. Mother and R4.N. alleged that Father
injured Re~ N· luring a period when they resided as an intact family and that this injury
necessitated an emergency room visit. Father insists that child received the injury while
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jumping on a trampoline. Despite hearing testimony from the parties, the Court was
unable to make a determination as to how Re; "'"" became injured and therefore did not
use this incident in formulating the Court's opinion. Moreover, To W.. ,a neighbor
and friend of Father, testified that Mother verbally abused both children and witnessed an
incident of physical abuse towards Re.I'L. RtoN· denied abuse at the hands of her
Mother. Re.~. indicated that Father grabs her by the ear and ann and threatens to
remove their pets, and Mother spanks her and sends her to her room. Although the Court
found testimony as to these events vague but credible, the Court does not feel that the
either party's household presents a continued risk of harm to the children.
As such, this factor favors neither party.
3. The parental duties performed by each party on behalf of the child.
Although Father is capable of adequately caring for the children, it was clear from
the testimony and evidence presented to the Court that much of the day-to-day care has
been performed by PGM and Mother. This was demonstrated by Father's inability to
communicate to the Court specifics about the children's doctor, dentist or his attendance
of appointments. Mother takes the children to both the pediatrician and dentist and
Father appears to be uninvolved in terms of the children's medical care. The Court took
notice that Father stated that since the time of separation, he has not been provided
adequate notice by Mother of doctor's appointments to allow him to attend. That being
said, it became clear to the Court that prior to separation Father did not involve himselfin
this aspect of parenting. Father is to be commended for arranging for a tutor for Re( . W.
to help with her declining grades. However the Court feels that this was more in reaction
to Mother's proactive step of requesting a parent/teacher conference to address Re. .M..'s
grades. It was clear that Mother plays a more dominant role and takes the initiative in
terms of Re. W' ,educational needs. Mother testified to helping Re(. H. one-on-one
with homework, while Father only testified to helping Re .1'1-1 by paying for a tutor.
Both parents expressed to the Court that they support extracurricular activities.
This factor favors Mother.
4. The need for stability and continuity in the child's educaHon, family life and
community life.
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The problems that exist regarding continuity of education for Re. N. \, especially
in tenus of attendance, existed prior to the parties separating and the Court finds that
these problems are attributable to the acrimonious home environment and to the
transportation challenges that were testified to. Furthermore, the Court found that
Re~".,'s testimony about her trouble at her current school from bullying by her peers
played a role in her nerves/anxiety, which contributed to tardiness and absences at school.
Although the Court is aware that a change in school will not prevent this in the future, the
Court feels that Mother is more sensitive to this issue and is better equipped to help
Re.,. .., deal with it. The Court notes that Re,.N. testified to having established
friendships with peers in the Baldwin-Whitehall school district and will be attending
school with her cousin H. !. Since Ri!Mis about to begin kindergarten, relocation at this
point will be less disruptive for her.
The Court acknowledges that Father'S home is more ideal in terms of physical
amenities, i.e. the size of his home, the number of bedrooms, and the availability ofa
pool; but this factor is outweighed by the home environment provided in MGF's home in
which Mother and the children will reside.
Both communities offer equal opportunities for the children. But because of the
issues Re.. tJ. las experienced at school, she has distanced herself from peers and has not
elected to involve herself in extracurricular activities in Oakdale. The Court feels that the
friendships and support network she has in Baldwin will allow Re.N- to avail herself of
more opportunities in that community.
Therefore, the Court finds that this factor favors Mother.
5. The availability of extended family.
At first glance it would appear that this factor does not weigh in favor of either
party, as the children have the advantage of extended family in both places. As noted in
the background of this case, Father's mother lives next to Father, and his brothers also
live in the area, and although this provides the opportunity to be involved in the
children's day-to-day life, the Court did not hear evidence of any significant involvement.
Conversely, MGF and Mother's sister live in the same household in Baldwin and the
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Court heard testimony of day-to-day interaction with these family members and cousins.
Currently. the Aunt and her children temporarily reside at PGF's house and have fonned
a close bond with the girls. The Court finds that this bond will continue even after Aunt,
Uncle and the cousins move into their own home in Baldwin.
This factor slightly favors Mother.
6. The child's sibling relationship.
Both parents agree that the children have a close bond and should remain in the
same household. When children stay with Father, it was clear to the Court that Re .N. is
thrust into the role of caretaker for her younger sibling, due to the physical limitations on
her grandmother. Living with Mother will enable Re.N· to concentrate on herself, and
will allow the two to enjoy a healthier and more conventional sibling relationship.
As such, this factor favors Mother.
7. The well-reasoned preference of the child, based on the child's maturity and
judgment.
By agreement of the parties, Rj,~id not testify. The Court found credible
testimony that Ri~is happy in both households and enjoys an equally close relationship
with both parents. Re.H. I, who did provide testimony to this Court, was unequivocal in
her preference to relocate with Mother. Although Rf.f'id testified that she loves her
Father and that he loves her, she indicated that she is sometimes afraid of him and has a
strained relationship with him. The Court fears that placing Re.;N., in Father's home
will further exacerbate this relationship.
This factor favors Mother.
8. The attempts of a parent to turn the child against the other parent. Exception:
domestic violence where reasonable safety measures are necessary to protect the
child from harm.
The Court finds evidence that both parents have attempted to influence ReN. ,
and to a lesser degree, R.i.". relative to the merits of this matter. With that
acknowledgement, the Court does not deem these attempts to be significant and therefore
it did not impact this Court's opinion.
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This is not a factor in this case.
9. Which party is more likely to maintain a loving, stable, consistent ~mdl nurturing
relationship with the child adequate for the child's emotional needs.
The Court does not doubt Father's love for both of his children. However, as to this
factor, the Court heard testimony that there is a strained relationship between Re.N. and
Father, and therefore Mother is best equipped to satisfy the current emotional needs of
her five-year-old daughter and Re.M. , who is pre-pubescent.
This factor favors Mother.
10. Which party is more likely to attend to the daily physic:n~, emotion:nl, developmental,
educational and special needs of the child.
As discussed above, given the ages and developmental stages of these two female
children, it is the Court's opinion that Mother is better equipped to attend to their
respective needs. Re."'.', for example, will begin dating soon and experiencing the
emotional rigors attendant thereto. Based on the testimony regarding her relationship
with each respective parent, it is apparent to the Court that R.,fJ .is more likely to
approach and confide in Mother than Father.
11. The proximity ofthe residences of the parties.
Although both households are within the same county, the proximity between the
residences has caused stress to the children, and transportation has been an obstacle.
Although the residences are close enough to facilitate continuing contact with the non-
custodial parent, the distance has clearly had a negative impact on both girls' day-to-day
schedules and on Re.H· 's academic perfonnance, such that a shared custody
arrangement is not possible.
For the reasons stated above and below, this factor favors Mother.
12. Each party's availability to care for the child or ability to make appropriate child-
care arrangements.
Mother is employed part-time with a flexible schedule and has the support of her
Father (pGF), who is healthy and actively involved in the life and supervision of the
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children. Father works full-time for the family auto/mechanic business and also has
flexibility. However, when Father is at work, the children are supervised for the most
part by POM, who is eighty-three (83) years old, has considerable health issues and is
confined to a wheelchair. POM lives in a separate home on the same property, and is not
physically able to provide adequate safeguards for the children. No testimony was
provided to the Court that Father has arranged for any type of alternative childcare other
than POM, since the neighbor he previously relied upon has accepted full-time
employment.
As the Court does not feel that Father has adequate or reliable care for the
children, this factor favors Mother.
13. The level of conflict between the parties; the willingness and ability of the parties to
cooperate with one another.
The Court heard considerable testimony of past and current conflicts between the
parties, such that the Court does not feel that custody can be shared in this case. This is
evidenced by the unilateral decisions made by both parties. There is no desire to
cooperate or ability to communicate.
Therefore, this factor favors neither party.
14. The history of drug or alcohol abuse of a party or member of a party's household.
Although brief testimony was offered regarding Father's felony drug conviction
in 2007, the Court did not deem it significant, and therefore this factor favors neither
party.
15. The mental and physical condition of a party or member of a party's household.
With the exception of the parties' respective parents, as discussed above, the
Court was not presented with testimony relative to any mental or physical limitations of
either party. As such, this factor favors neither party.
16. Any other relevant factors.
All relevant factors have been addressed by this Court.
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By virtue of the fact that granting primary custody would require relocation of the
children from Oakdale to Baldwin, the Court must also analyze the case under the factors for
relocation. These factors are discussed below:
1. The nature, quality, extent of involvement and duration of tbe child's relationship
with the party proposing to relocate and with the nonrelocating party, siblings and
other significant persons in the child's life.
Mother is the party proposing relocation in this case. It is evident to the Court
that Ri~ enjoys a positive relationship with her Mother, and has since birth. It is
further evident to this Court that Mother assumes primary responsibility for all
aspects of ruM!' s medical, physical and educational needs. Mother has an equally
positive relationship with Re ...• ". Re#I· t describes Mother as actively involved in
her day-to-day life and gave many examples of Mother's nurturing and emotional
support.
Father is the non-relocating party in this case. It is evident to the Court that R"
enjoys a positive relationship with her Father as well, and has since birth. The Court
does not question Father's love for RiM·, and although he has been involved in Mit's
upbringing, Father has not been involved in her day-to-day care to the extent that
Mother has. In fact, the nature of ReJI· ,'s relationship with Father has steadily
deteriorated in recent years for the following reasons: blatant attempts to bribe her
with pets; threats and mistreatments of the pets as a form of discipline; and his
insensitivity to Re,.N. s preferences relative to choice of school, extracurricular
activities and living arrangements.
At the time of this trial the children are twelve (12) and five (5), and despite the
age difference, it is clear to the Court that the girls enjoy a strong bond. With regards
to the relationship between R~"" rod ~Nwhile in Father's custody, it resembles a
mother-daughter relationship, to the extent that Reanna is often forced into the role of
caregiver. When in Mother's custody, it appears to the Court that ReI. It I is able and
allowed to be a child, and the two engage in a more appropriate sibling relationship.
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As stated previously, the girls have enjoyed a consistently close relationship with
MGF all their lives and will continue to do so. As to PGM, although the girls have
spent a significant quantity of time with her, the quality of that time has been
diminished. This is evidenced by the fact that the role of custodian appears to have
been thrust upon PGM, in spite of her obvious physical limitations. The Court finds
th"at giving Mother primary custody will allow PGM to have more quality time with
the children when they have custodial periods with Father. This will relieve PGM of
the duties of caring for two reportedly energetic children, and will provide the
opportunity for them to enjoy a more conventional relationship,
This factor favors Mother.
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 need of the child.
Unlike the typical relocation case, the children would be relocating to a known
location, PGF's home. This is 'a home that both children have spent significant time in,
and where they are familiar and comfortable.
At the time of this decision Reo. N· is twelve (12) years old and entering seventh
(7 th) grade, and Ri~Nis five (5) years old, entering kindergarten. Relocation now is likely
to be less disruptive to R.i.~ue to her age. Although RiJf·does have friends near
Father's home and conversely has not developed many friendships in Baldwin, the Court
does not feel that relocation at this time will be traumatic. Ri." reportedly has an affable
and energetic personality and is about to begin her schooling, all of which will provide
the opportunity to readily fonn friendships. The Court notes that the relocating school,
Paynter Elementary, is located on the same street as the relocating home and her cousin
E'G ! will also be attending the same school.
Re.N. has expressed her preference to move to Baldwin and is excited at the
prospect of attending the Baldwin-Whitehall School District, where she received
schooling in previous years. The Court finds Re.a& 1 to be an intelligent, articulate young
woman who will excel academically regardless of which school she attends, as evidenced
by the grades and PSSA scores she reportedly received at Baldwin during part of her fifth
(5 ) grade year. That being said, Reg N· ~d Mother testified that Re. U •, grades at
th
-
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West Allegheny suffered because she was preoccupied while at school about Ri.~ who
was in the care ofPGM, a semi-invalid. Re.H·, has attempted to involve herselfin
extracurricular activities in Baldwin, such as softball, and has an existing support
network. Re.M. 1 testified that she has reconnected with friends in Baldwin that she made
while attending pre-school, kindergarten and a portion of fifth (5 th) grade. Furthermore,
both girls have cousins in Baldwin who will attend the same district, and, in fact, the
same schools. Especially in light ofRe.N.I's developmental age, and her closer
emotional bond with Mother, it is especially important that she has the opportunity to
readily and regularly communicate with her.
This factor favors Mother.
3. The feasibility of preserving the relationship between the non-relocating party and
the child through suitable custody arrangements, considering the logistics and.
financial circumstances of the parties.
As noted earlier by the Court, both parties reside in Allegheny County. Although
Baldwin and Oakdale are too far apart to accommodate daily travel, making shared
custody impractical, the distance is close enough to facilitate a meaningful relationship
with the non-custodial parent. Both parties agree that shared custody is an untenable
arrangement, but partial custody, including weekend visits, is certainly a viable
alternative. As discussed previously, Mother has demonstrated that she is the parent who
is better suited to preserve the girls' relationships with Father, while Father has
demonstrated stubborn inflexibility, especially with regard to transportation. Note that
financial considerations are not present in this case.
This factor favors Mother.
4. The childts preference, taking into consideration the age and maturity of the child.
This factor has been previously discussed.
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.
This factor was addressed by the Court earlier. The Court finds that both parties have
been wholly-conswned by litigation for over a year, and in their effDrts tD jockey for
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position, have lost sight of their children's best interests by using them to varying
degrees. The Court is hopeful that this decision will allow both parents to refocus and
concentrate on raising two well adjusted children, who can enjoy positive relationships
with both Mother and Father.
This factor favors neither party.
6. Whether the relocation will enhance tbe general quality of life for tbe party seeking
the relocation, including, but not limited to, financial or emotional benefit or
educational opportunity.
This relocation request is not premised upon any educational or financial
opportunities for Mother. The court notes that awarding primary custody to Mother, and
thereby allowing her to relocate with the children, will enhance the quality of Mother's
life both emotionally and logistically, given her extensive family support network. This
relocation will reduce the burdens of transportation, and the attendant potential for
conflict. Both Mother and Father will have the opportunity to focus on the respective
roles they are to play in their daughters' lives moving forward.
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.
As a supplement to the Court's analysis above, the Court notes that Ri;fts life is
happy at both locations. For Re.M. ,however, it is clear that her relationship with Father
is strained by the current shared custody agreement. The Court finds that R4lf.tt will
receive support from Mother that Father is unable to provide, given the current state of
his relationship with Re .H·.. It is the Court's hope that the custody arrangement
attached hereto will alleviate the father-daughter tension, and allow him to be a positive
force during Re.tA. 's difficult teenage years.
This factor favors Mother.
i' 8. Tbe reasons and motivation of each party for seeking or opposing the relocation.
(Both parties sbare this burden equally in proving tbe integrity of their motives)
~
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As to both Re;.f\l· and RiJf;vfother seeks to eliminate the stress of frequent custody
exchanges and the attendant physical and emotional tolls. Both parties testified that the
girls are perpetually fatigued due to the distance that must be covered to effectuate the
current custody scheme. Although the Court finds that Father sincerely desires to play an
integral role in his daughters' lives, the Court suspects that Father'S opposition to
relocation is grounded more in his desire to punish Mother's abandonment, rather than in
any consideration of his children's best interests. It is noteworthy that although Mother
has entered into a new relationship with a life-long acquaintance, Father does not appear
to have moved on. The Court is hopeful that the finality of this decision will compel
Father to accept the final dissolution of his romance with Mother, and accept this new
relationship as co-parents.
This factor clearly favors Mother, inasmuch as she obviously desires to assume a
more active role in Re.M- Is life as she enters her teenage years.
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 ¢o the child or an abused
party.
The Court addressed this factor previously.
10. Any other factor affecting tbe best interest oftbe cbild.
All relevant factors have been addressed by this Court.
Based upon all of the above, the Court orders that the children will relocate with Mother
to Baldwin and enters the following order.
By the Court,
tIIdf/~dL J.
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IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
FAMlLYDIVISION .
R.N.
NO. F.D. 04·004218
PLAINTIFF, SUPERIOR COURT #1556 WDA 2014
Vs.
OPlNIONBY:
R.L.s.,
DEFENDANT. JUDGE MARK V. TRANQUILLI
COPIES SENT TO:
COUNSEL FOR THE PLAINTIFF:
MAX FELDMAN, ESQ
1322 FIFTH AVENUE
CORAOPOLIS, PA 15108
COUNSEL FOR DEFENDANT:
D. SCOITLAUTNER, ESQ.
68 OLD CLAIRTON ROAD
PIITSBURGH, PA 1523
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IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
FAMILY DIVISION
R.N, NO. F.D. 04·004218
SUPERIOR COURT #1556 WDA 2014
PLAINTIFF,
Vs.
R.L.S.,
DEFENDANT.
OPINION
Mark V. Tranquilli, Judge Date: October 24,2014
Plaintiff, R. ( N. . (Father) appeals from the Order of Court dated August 21, 2014
awarding primary custody to Defendant, R 0 ' L. S. • (Mother).
The parties are the biological parents of two children born out-of-wedlock, Re .N •
• )~__ (12) and Ri!N. .. ~4", (5). Mother and Father's relationship began in 1998 and
was erratic through 2001 when their daughter Re~ N· as born. After her birth, the parties
resided as an intact family in Oakdale at Father's home located in Coraopolis, PA. Between the
years of 2003 and 2008, Mother along with ReM.. ;;nent significant time away from the family
home in Oakdale, as Mother helped care for her cancer-stricken Mother at her parents' home
located in Baldwin, PA. Since the birth ofRi~ee.in 2009, the parties and children lived in
Oakdale. R~· attended school at the West Allegheny School District and Ri,.N.tttended a
local preschool, Resurrection Lutheran Preschool. On or about April 6, 2013 Mother, without
providing Notice to Relocate, moved within Allegheny County with the children into maternal
grandfather's home in Baldwin, PA. The oldest child, ~.'" was subsequently registered and
began attending the Baldwin-Whitehall School District.
Father filed a Complaint in Custody on April 17, 2013' seeking primary custody of the
children. On May 6,2013, while parties were going through the Generations process, an interim
order was entered giving both parties shared physical and legal custody. It was further ordered
I Mother also filed a Complaint in Custody on Aprill?, 2013 however Father's was treated as first in time.
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that R.~"and RiJ4.were to be returned to their respective schools in Oakdale for the
remainder of the 2012-2013 school year, as the parties could not come to an agreement. A
Consent Order of Court-Custody was signed by the parties on August 14,2013, in which they
agreed to share legal and physical custody, outlining a 5-2-2-5 schedule. It was further agreed
that Re.N. and RiII.would continue at their respective schools through the 2013-2014 school
year and that Mother would be responsible for transportation during her custodial periods.
Since the August 2013 Consent Order of Court-Custody the parties demonstrated an
inability to communicate or co-parent, and the Court was inundated with upwards of twelve (12)
motions as of the date of trial. 2 On February 7,2014 Mother filed a Notice to Relocate and
Father promptly filed an objection on February 12,2014. The Court was unable to conciliate this
matter, as both parties desired primary custody, and a trial was held on August 7, 2014 before
this Honorable Court. The parties agreed that the youngest child, rij.N~ would not testify, but
ReeN_!. provided testimony and both counsel were permitted to ask questions of the child.
The Court issued a Parenting Plan and an Order dated August 21, 2014 awarding Mother
sole legal and primary custody and Father partial custody, consisting of every other weekend and
every Wednesday evening from 6:00pm to 8:00pm. The Court provided a detailed Memorandum
setting forth its reasoning through the analysis of the sixteen (16) primary custody factors as
required in Title 23 §5328 and the ten (10) relocation factors pursuant to Title 23 §5337(h).
Father filed a timely appeal pursuant to Pa.R.A.P. Rule 905(2), including a Statement of Matters
Complained of on Appeal, in which he raised twenty-five (25) assignments of error.
Upon reviewing the numerous matters complained of on appeal, the court believes the
most effective and efficient means of addressing them is to break down the issues into three (3)
general categories: credibility; procedural; and evidentiary.
At the outset, this Court is cognizant of the fact that custody cases are highly emotional,
and the parents have strong opinions as to what is in the best interest of their children. As such,
the Court sitting as the trial judge must make credibility decisions on the evidence and testimony
that is presented to it. Not surprisingly, the Court finds that the majority of Father's assignments
of error take issue with the Court's findings on credibility. This would apply to the assignments
~
of error lettered A, C, F, G, H, M, N, 0, P, S, U, W, and X. In general, the Court found Father to
be intransigent in his dealings with Mother in volving custody exchanges. This was most
2 The Court notes that the majority of filings were on behalf of Father, Raymond Nadik.
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glaringly illustrated by Father's narrow and inflexible interpretation of the transportation
requirement of the August 2013 custody order, in which Mother was to be responsible for
transportation during her custodial time. Father took advantage of the vague wording and made
Mother provide all transportation to and from Father's house in order to exercise her custodial
time, despite the fact that physical custody was shared. Prior to this order, the parties had shared
the responsibility of transportation by establishing a half-way point for custody exchanges.
Indeed, after providing all transportation for a few months, Mother retained new counsel in
December 2013 and the parties soon reverted to meeting at the same half-way point to make
custody exchanges. It was unreasonable to expect one parent to provide all transportation, in the
absence of emergencies, none of which arose according to the parties. Father's narrow
interpretation of the August 2013 custody order imposed an undue burden on Mother and
fostered animosity between the parties. Father decided to continue down this path, instead of
demonstrating a cooperative and fair approach more consistent with shared legal custody.
The Court recognizes that both parties in this case made unilateral decisions regarding
their children. The Court analyzed these situations, as well as the respective actions and
motivations of the parties, and it became clear that Father obstinately clung to his position
without consideration of the needs or desires of his children, particularly Re. f4. It was evident
that the relationship between Father and Re~"· is strained, despite Father's rationalization and
protestations to the contrary. Re .... 'i testified that her Father frightens her; that he employs
threats of harm to household pets as a means of discipline; and that he responds to her opinions
authoritatively and inflexibly. Re .. '.J. 'mequivocally testified that she wants to move to Baldwin
to spend more time with Mother at this stage of her development, despite the fact that she and
her sister admittedly had established friendships in Oakdale. The Court found it significant that
when Reo N. «Ommunicated this to Father, his terse response was that she was staying at West
Allegheny, whether she liked it or not; there was no explanation or discussion of his reasoning.
As the trier of fact, the Coun had the benefit of not only hearing the testimony first-hand, but
also observing the demeanor of the witnesses. Using these tools, the Court made a finding that
Mother was more credible in this case and found that most factors favored her, as the parent most
likely to attend to the emotional needs of her daughters.
Inasmuch as letter F relates to a safety concern for the children, this Court will address
this assignment of error individually. Although the parties testified that the relationship between
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Mother and Father was consistently plagued with verbal abuse, and both parties alleged incidents
of physical abuse, the Court did not find any credible testimony that either parent in this case
posed a safety risk to the children. and demonstrated the same by holding that this factor favored
neither party.
The next category of Father's assignments of error were procedural, lettered E and Y.
Assignment of error E alleges that this Court erred in not including a decision, in its order,
regarding Father's contempt petition that had been joined to be heard with the custody trial. 3
Father's Petition for Contempt, Sanctions and other Relief alleged that Mother failed to transport
the children to Father on six (6) dates separate and apart from the finding of contempt on June
10,2014. The Court specifically notes that even after Mr. Scott Lautner was retained by Mother
in December 2013, and the parties reverted to shared transportation, Father continued to file
contempt petitions against Mother for violating the transportation provision of the August 2013
custody order. Additionally, Father sought sanctions against Mother for failure to pay attorney
fees associated with the contempt finding by the hearing officer. 4 Mother filed exceptions on the
finding of contempt and those were pending at the time of trial. 5 Since exceptions were already
pending, this Court did not explicitly rule on the contempt matter, but the Order and Parenting
Plan clearly demonstrated that the transportation responsibilities in this case should have been,
and shall be shared equally moving forward. As such, this holding addressed, albeit not
specifically, Father's contempt petitions regarding Mother'S failure to transport the children on
the specific dates complained of. Most importantly, as set forth above, the Court does not
believe that Mother was violating the transportation provisions of the Order; as a result, no
attorney fees are owing. As to the assignment of error, letter y, Father cites no authority, nor
directs the Court to a provision within the August 14,2013 Custody Consent Order, to support
the proposition that Mother is somehow foreclosed from re-filing a Notice of Relocation after'
having entered into the Consent Order six (6) month earlier. As such, Mother'S request for
relocation was properly before this Court.
The final category of Father's matters complained of on appeal are evidentiary in nature,
including assignments of error lettered B, D, I, J, K, L, Q, R, T, and V. Father complains that the
I'.
3 Petition and Order dated July 18, 2014.
4 No affidavit of services was submitted at the Exceptions hearing or at the Relocation trial. Relocation petition
Hearing Transcript dated August 7, 2014 Pg. 466-467
5 See Tr. pgs. 215,226-228,357,466-467. Mother has since withdrawn her exceptions.
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Court afforded Mother's testimony greater weight than his, and also contends that the Court
ignored Father's evidence regarding, inter alia, the environment of each household, including
schooling, and the quality of life for Mother and the children. As stated above, Mother and
Father's relationship had completely deteriorated, resulting in an unhappy living environment for
all parties, including the children. This relocation was never premised on educational or
financial opportunities. In taking exception to the Court's finding, Father completely discounted
the emotional benefits that will accrue to Mother and the children by living in a house that has
emotional stability and an established, adequate support network. The Court found that the stress
of Jiving in Father's household negatively impacted Re:.". s performance at school and, indeed,
her physical well-being; there waS ample testimony provided on these fads. Although the Court,
by agreement of counsel, did not receive testimony from five (5) year old RiA the Court heard
nothing from either party that would lead the Court to believe that this well-adjusted and playful
child would be unable to thrive in either household. Furthermore, the Court found that the bond
between the siblings is strong and it would be detrimental for the children to reside apart, and
made its decision with that in mind.
The Court will address assignments of error Band D specifically, since they challenge
the Court's rulings on admissi~i1ity. Letter B assigns error to the Court's consideration of
Mother'S amended Pre-Trial Statement. Mother'S counsel did not amend his pre-trial statement
unilaterally, but rather at the direction of this Court, in order to elicit more details about Mother's
custody proposa1. 6 As such, counsel did not violate this Court's order and no error was
committed by allowing its consideration. Lastly, letter D challenges the Court's ruling on the
admissibility of exhibits and witnesses offered by Father. Of the nine (9) witnesses offered by
Father, only two (2) were deemed cumulative. 7 The offer of proof as to witness Mr. Drudy
focused on Father's parenting abilities, which were abundantly covered through multiple
witnesses. The second witness deemed cumulative was a twelve (12) year-old child, 51
WI.,., whom counsel sought to calI as a rebuttal witness to counter Re. N. testimony.
However, the child's adult mother, T.. W." had already testified at length in direct
contradiction to Re.• "., so her minor daughter's testimony was therefore deemed cumulative.
Finally, as to the exhibits offered by Father during the trial, all but one (1) was admitted or
6 See ir. 231-232.
, 7 See Tr. 435, 503.
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stipulated to by counsel. The only exhibit that was not admitted was a printout from the
Allegheny County property website, noting the dimensions of maternal grandfather's home.
This exhibit was withdrawn by counsel. B
The Court is aware that custody decisions typically make one, if not both parties
unhappy. That being said, the Court's role is to make findings that are in the best interests of the
child(ren), not to appease the parents. At the heart of Father's matters complained of on appeal
is his desire for something near the status quo, and his stubborn refusal to believe that the
children could thrive in an environment other than that which they had already experienced with
him. If such a presumption existed, a relocating parent could rarely, if ever, prevail, despite
having satisfied the burden required by Title 23. Mother's parenting style is warm and child-
centered, while Father's is authoritative and inflexible, influenced to some degree by a desire to
punish Mother for leaving him. Simply put, Mother is better suited to meet the needs of the
children in this case, and so the Court vested sole legal custody in her, since Father's
intransigence has proven to be an insunnountable obstacle to any other scheme.
By the Court,
tII@~~
8 See Tr. 168-171,506
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