J-S64017-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.L.J. IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
S.L.J. N/K/A S.L.M.
Appellant
v.
A.P. & B.P., JR.
No. 1093 MDA 2015
Appeal from the Order Entered May 27, 2015
In the Court of Common Pleas of York County
Civil Division at No.: 2009-FC-000619-03
BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and FITZGERALD, J.*
MEMORANDUM BY WECHT, J.: FILED DECEMBER 07, 2015
S.L.J. (“Mother”) appeals the May 27, 2015 order that disposed of
J.L.J.’s (“Father”) petition for modification of custody and A.P. and B.P., Jr.’s
(“Maternal Grandparents”) complaint for partial custody. After careful
review, we affirm.
Mother and Father are the parents of C.R.J. (“Child”), born in January
2005. Mother and Father separated around Christmas 2006, and divorced
on July 9, 2007. As of April 2007, Mother resided in Montgomery County.
She had primary physical custody of Child and Father had custody every
other weekend plus every Thursday evening. By April 2009, when Father
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*
Former Justice specially assigned to the Superior Court.
J-S64017-15
filed a complaint for custody, Mother had moved to York County,
Pennsylvania, (with Father’s consent) and Father had moved to New Jersey.
In September 2009, the parties reached a custody agreement that was
entered as an order on October 2, 2009. Mother had primary custody.
Father had alternate weekends during the school year with ten additional
overnights to be selected that did not interfere with Child’s school and five
weeks in the summer.
Custody was modified again in May 2012. During the school year,
Father had custody for one extended weekend per month and, if the school
calendar did not have an extended weekend, then Father had two weekends
in that month. For the summer, the parties alternated custody with Father
having three weeks, followed by Mother having two weeks.
On May 30, 2014, Father filed a petition for contempt and for
modification of custody. Father alleged that Mother had violated the 2012
custody order in a variety of ways,1 and he sought to modify the custody
schedule. Also, on June 2, 2014, Maternal Grandparents filed a complaint
for custody, in which they sought partial physical custody and to have their
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1
For example, Father alleged that Mother failed to keep Father informed
of medical appointments and treatment, failed to inform Father of school
meetings, failed to notify Father when Mother was out of town, failed to
notify Father of Child’s out-of-state travel, failed to inform Father of the
names of childcare providers, scheduled activities during Father’s custodial
time, withheld Child from Father during Father’s custodial time, and
interfered with Father’s phone calls with Child.
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complaint consolidated with Father’s custody action. On September 12,
2014, the trial court ruled upon Father’s petition for contempt. Although the
court did not find Mother to be in contempt, the court issued some
clarifications of the custody order to promote communication between Child
and Father.
After Father filed his petition and approximately two weeks before the
trial started, Mother informed the trial court that she intended to move from
York, Pennsylvania to Huntingtown, Maryland because her employer had
offered to relocate her. Mother sought to retain primary custody of Child in
Maryland. However, Mother never provided notice of the relocation as
required by 23 Pa.C.S.A. § 5337.
The trial court heard testimony on March 6, April 24, and May 1, 2015.
Father lives in Toms River, New Jersey. Joint Stipulations, 5/28/2015, at 2.
He lived with M.W.-J. (“Wife”) in a house owned by Wife’s parents, D.A.F.
(“Father-in-Law”) and C.F. Id. at 3. Because the house had been damaged
by Hurricane Sandy, Father, Wife, and her parents had been living about an
hour away with Father’s mother while repairs were made. Notes of
Testimony (“N.T.”), 4/24/2015 (afternoon), at 7. 2 Father testified that he
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2
From the record, it appears that some of Father’s testimony may be
missing. The April 24, 2015 transcript notes that Father’s direct examination
was continued from an earlier time. N.T., 4/24/2015, at 6. However, no
testimony from Father is recorded either in the morning or afternoon
volumes of the March 6, 2015 testimony. No other transcript has been
(Footnote Continued Next Page)
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had communication issues with Mother and that Mother recently withdrew
Child from soccer without talking to Father about it. Id. at 16. Father
stated that, previously, if Child had a Saturday soccer game on Father’s
scheduled weekend, Mother refused to transport Child from soccer to the
scheduled custody exchange point and instead required Father to pick Child
up from soccer. Id. at 14-15. Father had difficulty Skyping with Child
because Mother would not initiate a call or would refuse to take a call,
claiming that there was a schedule conflict or that Father was late. Id. at
35-38. When Father went to pick Child up after the March 6, 2014 court
date, Mother’s husband, J.M. (“Husband”), told Father that he was not
welcome and that he could not enter the house. This conversation occurred
when Child was close enough to overhear. Id. at 39-40. Father learned of
Mother’s proposed move when Child told him about it. Id. at 29. Father
testified that Mother told him that she was required to move for work, even
though it was not true. Id. at 28.
Initially, Father sought more time with Child, but thought that Child
should stay in Mother’s primary care because Child, who suffered from
learning difficulties, had been making so much progress. Id. at 30.
However, when he learned that Child would be moving to Maryland, he
sought primary custody. Id. at 30-31. Father talked with staff at Child’s
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(Footnote Continued)
entered in the certified record and we can find no reference to any other
hearing date in the record.
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potential school in New Jersey and was convinced that the school could
handle Child’s learning needs. Id. at 12-14. Father has been in
communication with Child’s psychologist and kept him informed of Child’s
progress while at Father’s house. Id. at 29. Father also discussed the
possible transition to New Jersey with Child’s psychologist. Id. at 42-43.
Father encouraged Maternal Grandparents’ involvement in Child’s life
because Maternal Grandparents provided a great deal of care for Child when
he was young. Father believed that Maternal Grandparents are important
to Child. Id. at 24-25. To that end, Father has included Maternal
Grandparents in Christmas and other events. Id. at 26-27.
Mother testified that she lives in York, Pennsylvania, with Husband,
Child, and J.A.J. (“Brother”), her three-year-old son with Husband. Id. at
82. Mother stated that Child and Brother get along well, but that there is
competition for attention at times. Id. at 83. Child gets along well with
Husband, too. Id. Mother indicated that Husband is retired and is therefore
able to care for Child and Brother. Id. at 95. Mother works in human
resources and has worked primarily in Harrisburg or Bowie, Maryland;
however, travel to other sites was necessary at times. Id. at 97. Recently,
though, Mother’s company merged with another, and Mother’s region grew.
Id. at 98. Mother’s region is now focused on Chantilly, Virginia, Baltimore,
and Bowie, Maryland, although working in Harrisburg remained an option.
Id. at 99. Mother’s home in York is a two-hour drive to her closest office.
Id. at 100. Mother testified that her move to Huntingtown, Maryland, would
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allow her to be home more and to spend less time travelling and commuting.
Id. at 104-05. The new location would add one half-hour each way to the
distance to Father’s house. Id. at 200. Mother admitted that she did not
inform Father about the move immediately because Mother did not believe
that the move constituted a relocation under the custody statute. Id. at
174. Mother entered into a contract to build her new home in Maryland in
April 2015, after the custody litigation had begun. Id. at 202.
Mother was Child’s primary caretaker, although Child did attend
daycare. For one year, Maternal Grandparents helped with childcare. Id. at
85. Mother contended that Father’s active involvement in Child’s life only
has been recent. Mother noted that Father had not attended soccer games,
school activities, or doctor appointments consistently. Id. at 89-90. Mother
contended that Father was the cause of the communication difficulties
regarding custody. Id. at 168-70. Mother admitted that she cut off contact
between Maternal Grandparents and Child after Maternal Grandparents filed
to intervene in the custody case. Id. at 178.
Child’s first-grade teacher brought Child’s learning difficulties to
Mother’s attention and she had him start seeing his current psychologist.
Id. at 85-86. Mother has worked with Child on exercises to improve his
reading on a daily basis. Id. at 196. In considering relocating, Mother
reviewed schools and found one that offered programs comparable to those
that Child already was receiving. Id. at 109.
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Child testified in camera. Child testified that Husband usually gets him
ready for school and watches him after school because Mother is at work.
N.T., 3/6/2015 (afternoon), at 37-38. Husband also is generally the person
who disciplines Child while he’s in Mother’s custody. Id. at 41. Child
described a sometimes difficult relationship with Husband, but also testified
that Husband helps Child with his homework. Id. at 42-43. Child enjoys his
time with Father. Id. at 46. Father and Wife sometimes attend Child’s
soccer games. Id. at 49. Child did not want to move to Maryland. Id. at
51-52. Child testified to his good relationship with Maternal Grandparents
and expressed the wish that there was an extra weekend in the month so he
could have a weekend with Maternal Grandparents without losing time with
Mother and Father. Id. at 55-56, 62-63.
Maternal Grandmother testified about her close relationship with Child.
N.T., 5/1/2015, at 6. However, when recommended by Child’s psychologist,
Maternal Grandparents stepped back from spending as much time with
Child. Id. at 7. Father has a good relationship with Maternal Grandparents
and supports their time with Child. Id. at 8. Maternal Grandmother
testified that Child is more relaxed and happy at Father’s home and believed
that it was in Child’s best interest to live primarily with Father even though
that would limit Maternal Grandparents’ time with Child. Id. at 10, 14.
Maternal Grandmother reached out to Father because she had concerns
about Husband’s relationship with Child and about Child’s medical condition.
Id. at 39-40.
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Child’s treating psychologist, Dan Ingram, Psy.D., testified. Dr.
Ingram diagnosed Child with situational depression, phonological dyslexia,
dysgraphia, and ADHD. N.T., 3/6/2015 (morning), at 9, 83. Dr. Ingram has
worked significantly with Child’s school to develop a plan that meets Child’s
educational needs. Id. at 82. Dr. Ingram described Child as very
emotional, very manipulative, and very affected by conflict. Id. at 57-58.
Dr. Ingram felt that Child’s view about who he wants to live with is colored
by whom he was with most recently. Id. at 72. Dr. Ingram testified that he
works with Mother and Father and their respective spouses as well as Child
and that he communicates with Father after Child’s sessions to keep Father
informed. Id. at 58-59. Dr. Ingram expressed no concerns about Husband
in regards to his care of Child and found Husband to be knowledgeable about
Child’s problems and needs. Id. at 62-63. Although Mother expressed
concerns about Maternal Grandparents’ stability, Child was very positive
about his time with them. Id. at 64-65. Given Maternal Grandparents
history in Child’s life, Dr. Ingram opined that ongoing access is in Child’s
best interest, but that Maternal Grandmother must keep Child out of the
conflict between her and Mother. Id. at 98. Dr. Ingram recognized that
Mother has more insight and involvement in Child’s school and treatment,
but believed that, if Child were to live with Father, Father would provide
good care and would be as involved. Id. at 74-75. Dr. Ingram cautioned
that any change in school for Child would have to be well-planned given
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Child’s educational needs. N.T., 4/24/2015, at 130. Dr. Ingram also opined
that a change in school would be a difficult transition for Child. Id. at 140.
Peter H. Thomas, Ph.D., a psychologist, provided a custody evaluation
and testified as an expert witness. N.T., 3/6/2015 (morning), at 9. Dr.
Thomas recommended, without knowledge of Mother’s proposed relocation,
that Mother remain primary custodian because Child is strongly attached to
Mother. Id. at 12. However, Dr. Thomas was concerned about Husband
because Child and Husband had conflicts. Id. at 10-11. Dr. Thomas
described Husband as “aggressive . . . with an undercurrent of some anger
and probably some tendency to be involved in conflicts.” Id. at 11. Dr.
Thomas opined that Husband may have made the conflict between Mother
and Maternal Grandparents more difficult because Husband handled issues
with them “in a more angry fashion.” Id. at 33. Dr. Thomas also stressed
that, although Husband is present in the home more than Mother, Mother
must remain the primary disciplinarian. Id. at 12. When informed about
Mother’s move, Dr. Thomas was concerned about separating Child from his
school, environment, and current therapist, and also the increased distance
between Child and Father and Maternal Grandparents. Id. at 15-16. Dr.
Thomas found Maternal Grandmother to be difficult and to have trouble
respecting boundaries. Id. at 33. However, Dr. Thomas found Child’s
relationship with Maternal Grandparents to be an important part of his life.
Id. at 34. Dr. Thomas acknowledged that Father has a more positive
relationship with Maternal Grandparents than Mother does. Id. at 46.
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Wife testified that she had a good relationship with Child. N.T.,
4/24/2015, at 64. Wife confirmed that there are difficulties between Mother
and Father in relation to custody and corroborated Father’s account of his
relationship with Mother. Id. at 65-67.
Husband testified that he is retired and has two adult daughters in
addition to Brother. Id. at 208. Husband is involved in Child’s care and
educational needs on a daily basis. Id. at 211-12. Husband testified that
Maternal Grandmother insisted on going to custody exchanges with Mother,
but that he and Mother began to refuse this because Maternal Grandmother
would upset Child. Id. at 218-20. Husband described Mother as a
committed and dedicated parent. Id. at 224.
B.V.J. (“Paternal Grandmother”) testified that Father and Wife lived
with her for some time after their home was damaged by Hurricane Sandy.
N.T., 3/6/2015 (afternoon), at 8. Father and Wife had moved back to their
home about two months before the first trial date. Id. Paternal
Grandmother lives about forty-five minutes from Father’s house and would
be available to help care for Child if Child was home sick from school or if
Father and Wife were working. Id. at 10. Father facilitates Paternal
Grandmother spending time regularly with Child during Father’s custodial
time. Id. at 16.
Father-in-law testified that Wife and Father live in a separate wing in
the house. N.T., 3/6/2015 (afternoon), at 19. Father-in-law intended to
transfer the deed of the house to Wife with a living trust for him and his
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wife. Id. at 20. Father-in-law and his wife are retired and would be able to
provide after-school and other care for Child as needed if Father and Wife
were unavailable. Id. at 22-23.
On May 27, 2015, the trial court issued an opinion and order. The trial
court denied Mother’s request for relocation. The trial court ordered shared
legal custody between Mother and Father. If Mother moved to Maryland, the
trial court ordered that Father would have primary physical custody and
Mother and Maternal Grandparents would have partial custody. Mother’s
custody during the school year would be alternating weekends and Maternal
Grandparents would have eight hours of custody during one of Father’s
weekends and three hours on alternating Wednesdays. During the summer
vacation, Father would have custody for the first, sixth, and tenth weeks.
Mother would have custody during the second through fourth weeks and
seventh through ninth weeks. Maternal Grandparents would have custody
for the fifth week of summer.
However, if Mother did not move, then Mother would have primary
physical custody of Child. In that scenario, Father would have the same
custody that was afforded to Mother if she moved and Maternal
Grandparents’ custody would remain the same.
On June 25, 2015, Mother filed a notice of appeal. On the same date,
she filed a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(a)(2)(i) and (b). On July 9, 2015, the trial court issued an
opinion pursuant to Pa.R.A.P. 1925(a), in which it referred to its May 27
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opinion and responded to the issues that Mother preserved in her concise
statement.
Mother raises the following issues for our review:
I. Whether the trial court erred as a matter of law and/or
abused its discretion in determining that Mother’s
proposed move qualified as a relocation pursuant to 23
Pa.C.S.A. §§ 5322 and 5337?
II. Whether the trial court erred as a matter of law and/or
abused its discretion in deciding the issue of relocation
before making a custodial decision based upon the best
interests of the children?
III. If it is determined that Mother’s proposed move qualified
as a relocation, did the trial court err as a matter of law
and/or abuse its discretion in denying Mother’s request to
relocate and in not awarding primary custody to Mother in
Maryland?
IV. Whether the trial court erred as a matter of law and/or
abused its discretion in failing to consider the relocation
factors in awarding Father primary physical custody in New
Jersey if Mother is to move to her proposed new residence
in Maryland?
V. Whether the trial court erred as a matter of law and/or
abused its discretion in awarding Maternal Grandparents
rights of partial physical custody without properly
evaluating the factors as set forth in 23 Pa.C.S.A. § 5328?
VI. Whether the trial court erred as a matter of law and/or
abused its discretion in failing to consider and give the
appropriate weight to the well-reasoned preferences of the
child?
Mother’s Brief at 4-5.
Our standard of review in child custody is as follows:
In reviewing a custody order, our scope is of the broadest type
and our standard is abuse of discretion. We must accept
findings of the trial court that are supported by competent
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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, we must defer to
the presiding trial judge who viewed and assessed 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.
D.K. v. S.P.K., 102 A.3d 467, 478 (Pa. Super. 2014) (quoting J.R.M. v.
J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011)).
Mother first asserts that the trial court erred in determining that
Mother’s move to Maryland constituted a relocation. Mother argues that the
move would not impair Father’s custody because Father still would be able to
participate in his weekend and summer custody schedule. Mother contends
that the increase in distance is minimal. Mother also argues that the move
would not interfere with Maternal Grandparents’ partial custody. Mother’s
Brief at 14-17.
The statute defines a relocation as “[a] change in a residence of the
child which significantly impairs the ability of a nonrelocating party to
exercise custodial rights.” 23 Pa. C.S.A. § 5322. We have not often had the
opportunity to confront whether a proposed move constitutes a relocation
under this definition. However, in C.M.K. v. K.E.M., 45 A.3d 417 (Pa.
Super. 2012), we found that a proposed move of sixty-eight miles did
constitute a relocation. In that case, the mother had primary custody and
the father had custody every other weekend and one weeknight for two-and-
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one-half hours. Id. at 419-20. The father was found by the trial court to be
actively involved in the child’s life, including school and extracurricular
activities. Id. at 420. Rejecting the mother’s contention that there was no
substantial impairment in the father’s custody because his custodial time
would increase under the mother’s proposal, the Court determined that the
proposed move would significantly threaten the father’s ability to exercise
custody. Id. at 426. The Court cited attendance at the child’s school,
sports, and medical appointments as evidence of the father’s involvement.
We stated that “[t]he record confirms the trial court’s conclusion that [the
mother’s] proposed relocation would break the continuity and frequency of
[the father’s] involvement with [the child] and therefore threatens
significant impairment of [the father’s] ability to exercise his custodial
rights.” Id.
Here, the trial court made a similar finding. First, the trial court cited
Mother’s exhibit that demonstrated that her move would add approximately
fifty miles each way to the travel between Mother’s and Father’s homes. The
court found that would increase Child’s travel by two hours for every
weekend exchange. Further, the eight-hour round trip would significantly
curtail Father’s ability to attend Child’s sporting or school events. Trial Court
Opinion (“T.C.O.”), 5/27/2015, at 5. The trial court also considered the
impact of the proposed move upon Maternal Grandparents, who attend
Child’s sports practices, games, and school events “on a regular basis.” Id.
at 6. The new location would require an approximately four-hour round trip,
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which would significantly hinder Maternal Grandparents’ ability to exercise
their partial custody rights because “[i]t would be fairly implausible for
Maternal Grandparents to regularly attend [Child’s] soccer games or other
school and extracurricular activities during the week.” Id.
The record supports the trial court’s finding that Mother’s proposed
move would substantially impair custody. Although Father’s custodial time
would not decrease, a lack of reduction of custodial time does not, by itself,
preclude finding a substantial impairment in custody. See C.M.K., supra.
Father has attended Child’s sports and school events, even outside of his
custodial periods. Father has maintained a presence in Child’s medical care
by being in regular and consistent contact with Dr. Ingram. Father has
participated in the extra academic activities that have been designed to aid
with Child’s learning difficulties. The extra distance and a new psychologist
and school threatens impairment of Father’s ability to participate in these
parts of Child’s life. Further, the greatly increased distance for Maternal
Grandparents would impair their ability to participate in Child’s activities at
the level they currently do. Given the support for the trial court’s findings,
the trial court did not abuse its discretion in determining that Mother’s
proposed move would impair the custody rights of the nonrelocating parties
and, therefore, was a relocation.
Mother next argues that the trial court erred in deciding relocation
before engaging in an analysis of Child’s best interest. Mother asserts that
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the trial court should have conducted both analyses in unison, rather than in
sequence. Mother’s Brief at 18-19.
When awarding custody, the trial court must determine the child’s best
interest by considering all relevant factors as outlined in 23 Pa.C.S.A.
§ 5328:
(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.
(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.
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(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 addition, when considering whether to permit a relocation, the trial
court must consider the following factors:
(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.
(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.
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(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(h).
In a similar case, we found no error when a trial court denied
relocation and made custody contingent upon whether or not the mother
moved. S.J.S. v. M.J.S., 76 A.3d 541, 544 (Pa. Super. 2013). There, the
mother complained that the trial court should have engaged in a best
interest analysis and then the relocation analysis. Id. at 549. However,
because the trial court considered all of the factors of both sections and set
forth a detailed and comprehensive discussion, and because “the two
analyses are not entirely separate,” we held that “it as suitable to engage in
a dual analysis and enter one order.” Id. at 549-50.
Here, the trial court considered all of the factors and provided an
analysis that thoroughly discussed those factors and considered Child’s best
interest. T.C.O. at 5-14, 19-25. After engaging in that analysis, the trial
court issued a single order addressing both issues. We can find no
authority, and Mother provides none, to suggest that the trial court must
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engage in a section 5328 analysis first. Hence, the trial court did not err in
addressing relocation first in its order.
Mother next argues that the trial court erred in denying Mother’s
request to relocate. Mother contends that the trial court did not consider
that the move to Maryland would improve her quality of life and, therefore,
improve Child’s life as well. Mother relies upon better career opportunities
and the ability to spend more time at home as evidence of that
improvement. Mother argues that the court did not give sufficient weight to
her testimony that the schools in Maryland would be able to meet Child’s
needs when the court found that a move would have a negative impact on
Child. Mother also maintains that the trial court treated Child’s testimony
inconsistently by discounting it in the relocation analysis and giving it some
weight in the best interest analysis.3 Mother’s Brief at 19-28.
The trial court concluded that, after weighing all the relocation factors,
the move was not in Child’s best interest. T.C.O. at 15. The court cited
Child’s special education needs that are well-met in his current school and by
his current psychologist, as well as the emotional distress that Child would
encounter in leaving his familiar environment. Id. Further, the trial court
found Mother’s testimony to be inconsistent with regard to the benefits of a
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3
Mother makes this same argument in her final issue on appeal. We
address her concerns about the trial court’s weighing of Child’s testimony in
the discussion of her final issue.
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move. The trial court did not believe Mother’s testimony that her
commuting time would be significantly shorter or that her move was
required by her employer. Id. at 12. The record amply supports the trial
court’s findings. Both Dr. Ingram and Dr. Thomas opined that moving would
be a difficult transition for Child. That Child has shown great progress with
Dr. Ingram and his academic interventions are not disputed. To the extent
that Mother invites us to re-weigh the evidence or re-consider the trial
court’s credibility determinations, we are unable to do so. See D.K., supra.
Given the support in the record for its findings, the trial court did not abuse
its discretion.
Mother next argues that the trial court erred in not analyzing the
relocation factors when it awarded primary custody to Father if Mother
moved to Maryland. Mother contends that the move to New Jersey would be
a relocation for Child, and that the trial court only discussed the relocation
factors in connection with Mother’s move to Maryland. Mother’s Brief at 30-
34.
In D.K., supra, the father lived in Pittsburgh while the mother lived in
North Carolina. The father had primary custody of the children. When the
mother filed for primary custody, the father objected that the mother had
not complied with the notice provisions of the relocation statute. D.K., 102
A.3d at 469-70. After conducting a statutory analysis, “we conclude[d] that
where neither parent is relocating, and only the custodial rights of the
parties are at issue, section 5337 of the Child Custody Act is not per se
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triggered.” Id. at 474. However, we also held that, when a child would
move a significant distance, the trial court should consider the relevant
relocation factors in its best interest analysis. Id. at 477-78. Although most
of the relocation factors have a counterpart in the best interest factors,
some do not. Specifically, we cited the following factors that are not already
encompassed by the best interest factors:
the age, developmental stage, needs of the child and the likely
impact the child’s change of residence will have on the child’s
physical, educational and emotional development (23 Pa.C.S.A.
§ 5337(h)(2)), the feasibility of preserving the relationship
between the other parent and the child (23 Pa.C.S.A.
§ 5337(h)(3)), and whether the change in the child’s residence
will enhance the general quality of life for the child (23 Pa.C.S.A.
§ 5337(h)(7)).
Id. at 477.
In the instant case, Mother is relocating, but Father has resided at his
New Jersey residence for years, notwithstanding a forced temporary change
in residence due to storm damage to his home. Applying D.K., section 5337
does not apply to Father’s request for primary custody. However, the trial
court was obligated to consider any relevant relocation factors in considering
Father’s custody request. The trial court analyzed the relocation factors,
focusing upon Mother’s move to Maryland, and the best interest factors,
while also discussing New Jersey, York, and Maryland. Of the three specific
relocation factors that the D.K. Court cited for additional consideration, the
trial court considered Child’s needs and the impact of a change in residence.
The trial court found that any change in residence would have a negative
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impact upon Child because of the change in psychologist and school, and the
diminution of the important role Maternal Grandparents play in Child’s life.
T.C.O. at 8-9. The trial court also found that Father would permit continuing
contact to preserve the relationship between Child and Mother. Id. at 19.
The trial court concluded that any move by Child would not have a positive
impact on his quality of life because of the change to his educational plan,
having to find a new psychologist, additional travel time, and loss of his
friends and significant access to Maternal Grandparents. Id. at 12. The trial
court gave adequate consideration to all the factors that are required by
D.K. The court concluded that it was in Child’s best interest to remain in
York. However, if Mother relocated to Maryland and Child could not stay in
York, the trial court found that it was in Child’s best interest to be with
Father, who will promote Child’s relationship with Mother and Maternal
Grandparents. The record supports the court’s findings and conclusions.
There is no error of law or abuse of discretion.
Mother also argues that the trial court erred in awarding partial
custody to Maternal Grandparents. Mother asserts that, pursuant to section
5328(c), the trial court must consider whether a custody award to a
grandparent interferes with the parent-child relationship and whether the
award is in the best interests of the child. Mother argues that Maternal
Grandparents’ custody interferes with her relationship with Child because
Child does not display his “normal personality and demeanor” when he
returns from his custody with them. Mother asserts that Maternal
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Grandparents have opposed her move for the purpose of interfering with her
relationship with Child. Mother concludes that the custody award was not in
Child’s best interest. Mother’s Brief at 35-39.
In considering whether to award partial custody to grandparents who
have standing because the parents are separated or divorced, the trial court
must consider the following in its best interest analysis:
(i) the amount of personal contact between the child and the
party prior to the filing of the action;
(ii) whether the award interferes with any parent-child
relationship; and
(iii) whether the award is in the best interest of the child.
23 Pa.C.S.A. § 5328(c)(1).
Here, the trial court considered that Maternal Grandparents had
“played a substantial role” in Child’s early years, providing childcare and
support. T.C.O. at 7. The trial court credited Dr. Ingram’s testimony that
Maternal Grandparents’ involvement with Child is important to him. Id. at
10. The trial court recognized that Mother and Maternal Grandparents’
relationship is contentious. Id. at 25. However, considering all this, the
trial court determined that it was in Child’s best interest to continue to have
court-ordered time with Maternal Grandparents to preserve that important
relationship. Id. at 26. The trial court committed no error of law, because it
considered all of the factors as required by statute. Further, the record
provides support for the trial court’s findings. The court did not abuse its
discretion.
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Finally, Mother argues that the trial court erred in not giving weight to
Child’s testimony. Mother again contends that the trial court reached
inconsistent conclusions from Child’s testimony because, in its relocation
analysis, the trial court found that Child was concerned about moving, but
found the factor to be neutral, and, in its best interest analysis, the trial
court found that Child’s testimony leaned in favor of Maternal Grandparents.
Mother also argues that Child’s testimony demonstrated that he wanted to
spend more time with Mother so the trial court should have concluded that
the relocation, which would have cut down Mother’s commuting time, was in
Child’s best interest. Mother’s Brief at 39-41.
We find no inconsistencies in the trial court’s consideration of Child’s
testimony. In both analyses, the trial court cited Child’s apprehension about
moving, but ultimately relied upon Dr. Ingram’s opinion that Child’s thoughts
about where he wants to live are too easily swayed by Child’s most recent
custody experience. There is no error in the trial court’s reliance upon the
opinion of Child’s treating psychologist in this regard. With regard to
relocation, the trial court found that Child expressed reluctance about
moving, which could have weighed against relocation. However, the trial
court credited Dr. Ingram’s testimony that Child was influenced by his most
recent custodial period, and hence did not give much weight to Child’s
testimony. In the best interest analysis, the trial court cited that same
testimony from Dr. Ingram, but also credited Child’s testimony that he
wished for time with Maternal Grandparents. The trial court still did not give
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much weight to that testimony, stating that it “weighs slightly in favor of
Maternal Grandparents,” even given the strength of Child’s testimony.
T.C.O. at 22. In both instances, the trial court did not place much weight
upon Child’s testimony based upon the opinion of Dr. Ingram. The trial
court was entitled to credit Dr. Ingram’s testimony and did not abuse its
discretion in doing so. Further, we may not reweigh the evidence. See
D.K., supra.
Finally, the trial court did not credit Mother’s testimony that the move
to Maryland would reduce her commuting time significantly. T.C.O. at 12.
Therefore, even if the trial court had placed greater weight upon Child’s
testimony that he wanted to spend more time with Mother, it would not have
concluded that the relocation would serve that goal. We may not re-weigh
the evidence. See D.K., supra. The record supports the trial court’s
conclusions. There is no abuse of discretion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/7/2015
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