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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.M.N. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
S.L.N.
Appellee No. 338 WDA 2015
Appeal from the Order January 27, 2015
In the Court of Common Pleas of Allegheny County
Family Court at No(s): FD-13-007918-002
BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 02, 2015
Appellant, J.M.N. (“Father”) appeals from the order entered in the
Allegheny County Court of Common Pleas, which granted primary custody of
the parties’ children, B.F.N. and S.C.N. (“Children”), to Appellee, S.L.N.
(“Mother”) and granted Mother’s petition for relocation. We affirm.
Regarding both custody and relocation, the trial court findings present
the relevant facts of the matters in question. Nevertheless, we add a short
summary of the case and procedural history from the certified record for
context. The parties were married in September 2005 in Pennsylvania,
separated in July 2013, and finalized their divorce in July 2014. The parties
have two minor children of school age; the older child has developmental
challenges with an autism diagnosis. The younger child has also displayed
similar behavior consistent with the same problems. Mother has taken
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primary responsibility for Children’s care, counseling, therapy, and
education. In September 2014, Mother was offered a positive, professional
opportunity in West Virginia around the same time she learned that
Children’s Pennsylvania school district was discontinuing B.F.N.’s services.
Given the changed circumstances, Mother filed a petition on September 24,
2014, for relocation to West Virginia. On September 26, 2014, Father filed a
complaint for custody. The parties had previously enjoyed an informal and
cooperative custody arrangement, which deteriorated following the filing of
the relocation petition and custody complaint. In October 2014, Mother
married S.S. (“Husband”), who works in West Virginia.
In January 2015, the court held a two-day hearing on custody and
relocation. By order entered January 27, 2015, the court granted Mother’s
petition to relocate and granted Mother primary legal and physical custody of
Children, effective with the commencement of the 2015-2016 school year.
Meanwhile, the court ordered the parties to share legal and physical custody.
Father timely filed a notice of appeal on February 26, 2015, but he
failed to attach a concise statement of errors complained of on appeal per
Pa.R.A.P. 1925(a)(2)(i). The trial court issued a Rule 1925(a) “statement in
lieu of an opinion” on March 15, 2015, without the benefit of Father’s
statement of issues. On March 25, 2015, this Court ordered Father to file
his Rule 1925 statement, which Father timely filed on April 6, 2015.
Father raises the following issues for review, which were also included
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in his Rule 1925 statement:
WHETHER THE [TRIAL] COURT ERRED IN DETERMINING
THE BEST INTEREST OF THE [CHILDREN].
WHETHER THE [TRIAL] COURT ERRED IN CONSIDERING
ALL RELEVANT FACTORS OF 23 PA.C.S.A. SECTION
5328(A)(1), WHICH PARTY IS MORE LIKELY TO
ENCOURAGE AND PERMIT FREQUENT AND CONTINUING
CONTACT BETWEEN THE CHILD AND ANOTHER PARTY,
AND GIVING APPROPRIATE WEIGHT TO MOTHER’S
BEHAVIOR.
WHETHER THE [TRIAL] COURT ERRED WHEN ADDRESSING
23 PA.C.S.A. SECTION 5328(A)(4), THE NEED FOR
STABILITY AND CONTINUITY IN CHILD’S EDUCATION,
FAMILY LIFE AND COMMUNITY LIF[E], IN FINDING THAT
MOTHER HAS BEEN PRIMARILY RESPONSIBLE FOR
ENSURING STABILITY AND CONTINUITY IN [B.F.N.]’S
MEDICAL TREATMENT AND EDUCATION.
WHETHER THE [TRIAL] COURT ERRED WHEN ADDRESSING
23 PA.C.S.A. SECTION 5328(A)(10), WHICH PARTY IS
MORE LIKELY TO ATTEND TO THE DAILY PHYSICAL,
EMOTIONAL, DEVELOPMENTAL, EDUCATION AND SPECIAL
NEEDS OF THE CHILD, IN FINDING THAT MOTHER IS BEST
SUITED TO OVERSEE AND ATTEND TO CHILD’S
CONTINUING CARE AND TREATMENT.
WHETHER THE [TRIAL] COURT ERRED WHEN ADDRESSING
23 PA.C.S.A. SECTION 5328(A)(13), THE LEVEL OF
CONFLICT BETWEEN THE PARTIES AND THE WILLINGNESS
AND ABILITY OF THE PARTIES TO COOPERATE WITH ONE
ANOTHER, IN FAILING TO GIVE APPROPRIATE WEIGHT TO
MOTHER’S BEHAVIOR AND FINDING THAT CO-PARENTING
COUNSELING SHOULD ALLEVIATE THE BEHAVIORS OF
MOTHER.
WHETHER THE [TRIAL] COURT ERRED WHEN ADDRESSING
23 PA.C.S.A. SECTION 5337(H)(2), THE AGE,
DEVELOPMENTAL STAGE, NEEDS OF THE CHILD AND THE
LIKELY IMPACT THE RELOCATION WILL HAVE ON CHILD’S
PHYSICAL, EDUCATIONAL AND EMOTIONAL
DEVELOPMENT, TAKING INTO CONSIDERATION ANY
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SPECIAL NEEDS OF CHILD, IN FINDING THAT MINOR
CHILD’S NEEDS ARE BEING MET AT HIS CURRENT
SCHOOL, BUT BELIEVING THAT HIS NEEDS WILL BE MET
AT HIS PROPOSED SCHOOL.
WHETHER THE [TRIAL] COURT ERRED WHEN ADDRESSING
23 PA.C.S.A. SECTION 5337(H)(5), WHETHER THERE IS
AN ESTABLISHED PATTERN OF CONDUCT OF EITHER
PARTY TO PROMOTE OR THWART THE RELATIONSHIP OF
CHILD AND THE OTHER PARTY, IN FAILING TO GIVE
APPROPRIATE WEIGHT TO MOTHER’S BEHAVIOR.
WHETHER THE [TRIAL] COURT ERRED WHEN ADDRESSING
23 PA.C.S.A. SECTION 5337(H)(7), WHETHER THE
RELOCATION WILL ENHANCE THE GENERAL QUALITY OF
LIFE FOR CHILD, INCLUDING, BUT NOT LIMITED TO,
FINANCIAL, OR EMOTIONAL BENEFIT OR EDUCATIONAL
OPPORTUNITY, IN FINDING THAT THE EDUCATIONAL
OPPORTUNITIES WILL BE COMPARABLE TO THOSE
CURRENTLY AVAILABLE AND TO FIND THAT THERE ARE
MORE SOCIAL, SPORTING AND COMMUNITY RESOURCES
AVAILABLE FOR CHILDREN IN THE AREA OF RELOCATION.
(Father’s Brief at 10-12).
In reviewing a child custody order:
[O]ur scope is of the broadest type and our standard is
abuse of discretion. This Court must accept findings of the
trial court that are supported by competent evidence of
record, as our role does not include making independent
factual determinations. In addition, with regard to issues
of credibility and weight of the evidence, this Court must
defer to the trial judge who presided over the proceedings
and thus viewed the witnesses first hand. However, we
are not bound by the trial court’s deductions or inferences
from its factual findings. Ultimately, the test is whether
the trial court’s conclusions are unreasonable as shown by
the evidence of record. We may reject the conclusions of
the trial court only if they involve an error of law, or are
unreasonable in light of the sustainable findings of the trial
court.
S.J.S. v. M.J.S., 76 A.3d 541, 547-48 (Pa.Super. 2013) (internal citation
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omitted). Additionally,
[O]ur Legislature adopted a new Child Custody Act (“Act”),
effective on January 24, 2011. See 23 Pa.C.S.A. §§ 5321–
5340. The new Act applies to “disputes relating to child
custody matters” filed after the effective date of the new
law. 23 Pa.C.S.A. § 5321. In E.D. v. M.P., 33 A.3d 73,
76 (Pa.Super. 2011), we held that the Act applied to any
proceeding, including a petition for relocation, initiated by
a filing made after the effective date of the Act.
Id. With respect to a custody order, Section 5328(a) provides:
§ 5328. Factors to consider when awarding custody
(a) Factors.—In ordering any form of custody, the court
shall determine the best interest of the child by
considering all relevant factors, giving weighted
consideration to those factors which affect the safety of the
child, including the following:
(1) Which party is more likely to encourage and
permit frequent and continuing contact between the
child and another party.
(2) The present and past abuse committed by a party
or 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 supervision of the child.
(2.1) The information set forth in section 5329.1(a)
(relating to consideration of child abuse and
involvement with protective services).
(3) The parental duties performed by each party on
behalf of the child.
(4) The need for stability and continuity in the child’s
education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
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(7) The well-reasoned preference of the child, based
on the child’s maturity and judgment.
(8) The attempts of a parent to turn the child against
the other parent, except in cases of domestic violence
where reasonable safety measures are necessary to
protect the child from harm.
(9) Which party is more likely to maintain a loving,
stable, consistent and nurturing relationship with the
child adequate for the child’s emotional needs.
(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and
special needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or
ability to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with
one another. A party’s effort to protect a child from
abuse by another party is not evidence of unwillingness
or inability to cooperate with that party.
(14) The history of drug or alcohol abuse of a party or
member of a party’s household.
(15) The mental and physical condition of a party or
member of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S.A. § 5328(a). In expressing the reasons for its decision, “there is
no required amount of detail for the trial court’s explanation; all that is
required is that the enumerated factors are considered and that the custody
decision is based on those considerations.” M.J.M. v. M.L.G., 63 A.3d 331,
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336 (Pa.Super. 2013), appeal denied, 620 Pa. 710, 68 A.3d 909 (2013). A
court’s explanation of reasons for its decision, which adequately addresses
the relevant custody factors, complies with Section 5323(d). Id.
The new Act defines “Relocation” as “[a] change in residence of the
child which significantly impairs the ability of a non-relocating party to
exercise custodial rights.” 23 Pa.C.S.A. § 5322(a); C.M.K. v. K.E.M., 45
A.3d 417, 422-25 (Pa.Super. 2012). Section 5337 sets forth the procedures
and factors governing relocation in relevant part as follows:
§ 5337. Relocation
(a) Applicability.—This section applies to any proposed
relocation.
(b) General rule.—No relocation shall occur unless:
(1) every individual who has custody rights to the child
consents to the proposed relocation; or
(2) the court approves the proposed relocation.
(c) Notice.—
(1) The party proposing the relocation shall notify
every other individual who has custody rights to the
child.
(2) Notice, sent by certified mail, return receipt
requested, shall be given no later than:
(i) the 60th day before the date of the proposed
relocation; or
(ii) the tenth day after the date that the individual
knows of the relocation, if:
(A) the individual did not know and could not
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reasonably have known of the relocation in
sufficient time to comply with the 60–day notice;
and
(B) it is not reasonably possible to delay the
date of relocation so as to comply with the 60–
day notice.
(3) Except as provided by section 5336 (relating to
access to records and information), the following
information, if available, must be included with the
notice of the proposed relocation:
(i) The address of the intended new residence.
(ii) The mailing address, if not the same as the
address of the intended new residence.
(iii) Names and ages of the individuals in the new
residence, including individuals who intend to live in
the new residence.
(iv) The home telephone number of the intended
new residence, if available.
(v) The name of the new school district and school.
(vi) The date of the proposed relocation.
(vii) The reasons for the proposed relocation.
(viii) A proposal for a revised custody schedule.
(ix) Any other information which the party proposing
the relocation deems appropriate.
(x) A counter-affidavit as provided under subsection
(d)(1) which can be used to object to the proposed
relocation and the modification of a custody order.
(xi) A warning to the nonrelocating party that if the
nonrelocating party does not file with the court an
objection to the proposed relocation within 30 days
after receipt of the notice, that party shall be
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foreclosed from objecting to the relocation.
(4) If any of the information set forth in paragraph (3)
is not known when the notice is sent but is later made
known to the party proposing the relocation, then that
party shall promptly inform every individual who
received notice under this subsection.
(d) Objection to proposed relocation.—
(1) A party entitled to receive notice may file with the
court an objection to the proposed relocation and seek
a temporary or permanent order to prevent the
relocation. The nonrelocating party shall have the
opportunity to indicate whether he objects to relocation
or not and whether he objects to modification of the
custody order or not. If the party objects to either
relocation or modification of the custody order, a
hearing shall be held as provided in subsection (g)(1).
The objection shall be made by completing and
returning to the court a counter-affidavit, which shall be
verified subject to penalties under 18 Pa.C.S. § 4904
(relating to unsworn falsification to authorities), in
substantially the following form…
* * *
(h) Relocation factors.—In determining whether to
grant a proposed relocation, the court shall consider the
following factors, giving weighted consideration to those
factors which affect the safety of the child:
(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.
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(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(a)–(d) (h). Moreover,
[T]he party proposing relocation…bears the burden of
proving relocation will serve the children’s best interests.
See 23 Pa.C.S.A. § 5337(i). Each party, however, has the
burden of establishing “the integrity of that party’s motives
in either seeking the relocation or seeking to prevent the
relocation.” 23 Pa.C.S.A. 5337(i)(2).
S.J.S., supra at 551. In all of these proceedings:
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[O]n issues of credibility and weight of the evidence, we
defer to the findings of the trial [court] who has had the
opportunity to observe the proceedings and demeanor of
the witnesses.
The parties cannot dictate the amount of weight the
trial court places on evidence. Rather, the
paramount concern of the trial court is the best
interest of the child. Appellate interference is
unwarranted if the trial court’s consideration of the
best interest of the child was careful and thorough,
and we are unable to find any abuse of discretion.
R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa.Super. 2009) (internal
citations omitted).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Susan
Evashavik DiLucente, we conclude Father’s issues merit no relief. The trial
court comprehensively discusses and properly disposes of the questions
presented. (See Trial Court Opinion, filed March 30, 2015, incorporating its
Findings of Fact and Order, filed January 27, 2015, at 1-12) (examining each
relevant factor under applicable statutes; concluding custody and relocation
decisions are in Children’s best interests). Accordingly, we affirm on the
basis of the trial court’s opinion, incorporating its January 27, 2015 Findings
of Fact and Order.
Order affirmed.
Judgment Entered.
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Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/2/2015
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