J-A35028-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.F.M., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
C.P.,
Appellant No. 910 WDA 2015
Appeal from the Order May 12, 2015
In the Court of Common Pleas of Lawrence County
Civil Division at No(s): 10709 of 2012, C.A.
BEFORE: BENDER, P.J.E., SHOGAN, and MUSMANNO, JJ.
MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 05, 2016
C.P. (“Mother”) appeals from the order entered on May 12, 2015, in
the Lawrence County Court of Common Pleas, denying her petition to
relocate to Austin, Texas, with her daughter, K.N.M. (“Child”), born in April
of 2012. The order also denied the petition filed by Child’s father, J.F.M.
(“Father”), seeking to modify the existing custody order.1 We affirm.
The trial court set forth the factual background and procedural history
of this appeal as follows:
The Plaintiff, [Father] and the Defendant, [Mother] are the
natural parents of the minor child. . . . Father initiated the
instant custody action on June 12, 2012 by filing a Complaint in
Custody. Following a Custody Conciliation Conference, an
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1
Father has not challenged the denial of his petition for modification of
custody.
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agreed upon Custody Order was entered whereby Mother
enjoyed primary custody of [Child], subject to Father’s partial
custody on Monday and Wednesday evenings and overnights
every Friday. On April 22, 2013, Father petitioned to modify the
existing Custody Order to increase his periods of partial custody.
Following another Custody Conference, Father’s partial custody
increased to overnight visitation every Wednesday evening and
every weekend from Saturday at 10:00 a.m. until Sunday at
8:00 p.m., in addition to extensive summer and holiday
visitation. Father filed a second Petition for Modification on
August 4, 2014, wherein Father requested primary physical
custody of [Child]. On October 27, 2014, Mother filed a Petition
to Relocate with the minor child to Austin, Texas. Father
opposed Mother’s relocation, and the [trial court] consolidated
Mother’s request to relocate and Father’s request for primary
physical custody for trial.
Trial Court Opinion, 5/12/15, at 1-2.
The trial court held the custody trial over five days in March and April
of 2015. During the trial, on March 18, 2015, Father presented the
testimony of Kirk Lunnen, Ph.D., who conducted a custody and psychological
evaluation of the parties. On March 18, 2015 and March 19, 2015, Father
presented the testimony of Child’s paternal grandmother, R.M., who had
notified Lawrence County Children and Youth Services (“CYS”) about alleged
potential health and safety concerns for Child at Mother’s home. On March
18, 2015, Father presented the testimony of Gary Zarilla, who was the CYS
Youth caseworker assigned to Child’s case. On March 19, 2015 and March
27, 2015, Father testified on his own behalf. On April 16, 2015, Mother
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testified on her own behalf. On April 23, 2015, Mother presented the
testimony of her husband, J.M.2
The trial court summarized the testimony from the custody trial as
follows:
Doctor Kirk Lunnen, a psychologist employed by People In Need,
conducted a custody and psychological evaluation of the parties.
Dr. Lunnen’s evaluation consisted of multiple interviews with the
parties, Mother’s current husband, the paternal grandparents,
and a home visit of Mother’s residence and Father’s residence.
Dr. Lunnen ultimately opined that the best interests of the minor
child would be served by implementing a fifty-fifty division of
physical custody between the parties. Dr. Lunnen stated that he
reached his conclusion after considering each party’s
psychological evaluations, the parents’ relationship with the
[Child], the close proximity of the parties’ residences, the ability
of both Mother and Father to parent, and the parties’ available
support systems. Dr. Lunnen further opined that the minor child
is developing appropriately and, so far, appears unaffected by
the custody dispute between the parties.
Father is currently twenty-three years old. Father resides
with his parents, [R.M. and F.T.]. Father attends college at
Youngstown State University full time, and he does not work.
Father is completely reliant upon his parents for all of his
financial support, including his monthly child support obligation
of $100. Father is pursuing a degree in criminal justice. Father
aspires to become a police officer. Father attends class every
weekday at 10:000 [sic] a.m., and typically finishes his courses
in the afternoon.
Father and Mother met in high school. They dated for
approximately three years prior to Mother becoming pregnant.
Mother and Father remained close, but they did not maintain an
exclusive relationship. Father was present for [Child’s] birth,
and he tried to assist Mother in caring for [Child] following her
____________________________________________
2
Although both Father and Mother presented other witnesses, these were
the witnesses whose testimony the trial court found significant.
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birth. Father stated that he helped assemble [Child’s] crib,
purchased clothing and baby items for [Child] and tried to assist
Mother in feeding, clothing and comforting their child.
Although Father and Mother tried to maintain a cordial
relationship, their efforts were strained by the presence of
Mother’s current husband, [J.M.]. When Father’s relationship
with Mother began to deteriorate, Father filed a custody
complaint in an effort to secure a steady visitation schedule
between himself and [Child].
Mother notified Father of her desire to move to Austin,
Texas in the Fall of 2013. Father stated that Mother was vague
about her intentions, and she seemed to only be considering the
idea. Father stated that the petition to modify custody, most
recently filed, was not initiated by his fear that Mother would
move, but rather, because Father was concerned that [Child]
was arriving at his residence with scratches, bug bites and lice
on her body. Father stated that he felt Mother was not keeping
her home clean, and that the animals in Mother’s residence were
causing [Child’s] ailments.
[Child’s] paternal grandmother, [R.M.], testified that
[Child] has her own room at her residence. Father is the
primary caregiver for [Child] when she is with Father, but [R.M.]
enjoys assisting Father when [Child] is with him. [R.M.] stated
that she has serious concerns about Mother’s household because
[Child] frequently came to her house with lice, bug bites, and
severe rashes on her private parts. [R.M.] contacted Children
and Youth Services of Lawrence County regarding her concerns
and they proceeded to conduct an evaluation.
Gary Zarilla was the Children and Youth caseworker
assigned to [Child’s] case. Mr. Zarilla stated that when he
initially visited Mother’s residence, there was a lot of garbage
and clutter. There were dishes piled up in the sink and several
pets living in the house. Mr. Zarilla generally described Mother’s
house as “overwhelming”, but he did not observe any definitive
safety concerns. Mr. Zarilla asked Mother to try and improve the
overall appearance and cleanliness of her house. Mother
complied with Mr. Zarilla’s request, and the conditions were
drastically remedied upon Mr. Zarilla’s follow-up visit. Mr. Zarilla
did not initiate any dependency proceedings on [Child’s] behalf.
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Mother testified that she has been the primary care giver
[sic] for [Child] since [Child’s] birth. Following [Child’s] birth,
Mother returned to her mother’s residence and lived with
maternal grandmother until Mother obtained a residence with
[J.M.]. Mother and [J.M.] subsequently married on August 28,
2014 and had a child together on November 28, 2014. Mother
stated that her desire to relocate is primarily based upon a job
opportunity provided to her husband by her mother-in-law.
Mother stated that she does not perceive Father as being a good
provider for [Child], considering the fact that Father is
completely dependent upon his parents for his financial needs.
Mother believes that she and her husband could better provide
for [Child] if they relocated to Austin, Texas because her
husband would be working for his family’s business and earning
in excess of $3,000.00 per month.
Mother wishes to further her education and believes this
could be more easily accomplished if she was permitted to
relocate with [Child] to Austin, Texas. Mother stated that she is
amicable [sic] to the idea of living with her in-laws, and Mother
believes that [J.M.] and his family could provide an adequate
support system for her children subsequent to moving.
[J.M.], Mother’s husband, also testified on Mother’s behalf.
[J.M.] is twenty-three years old. In addition to Mother and
[J.M.’s] child, [J.M.] stated that he loves and cares for [Child].
However, [J.M.] is also conscientious of his role as her step-
father. [J.M.] does not intend to replace Father as a male figure
in [Child’s] life.
[J.M.] would like to move with his family to Austin, Texas
so that he could work for his mother in her family restaurant.
[J.M.] proposed that he and Mother could move into his mother’s
residence during their transition, and that they could save
money to buy their own home. [J.M.] believes that his family
could provide an adequate support system for Mother and her
children.
Trial Court Opinion, 5/12/15, at 2-6.
In the order entered on May 12, 2015, the trial court denied Father’s
petition to modify the existing custody order and denied Mother’s petition to
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relocate to Austin, Texas, with Child. On June 10, 2015, Mother filed a
notice of appeal along with a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
In her brief on appeal, Mother raises five issues:
Issue I. Whether the trial court erred in finding that the Mother
failed to meet her burden of establishing that the relocation to
Austin, Texas, would be in the child’s best interests and enhance
the quality of life for the mother and the minor child[?]
Issue II: Whether the trial court erred as a matter of law in
failing to take into consideration all of the relocation factors as
set forth in 23 Pa.C.S.A. § 5337(h) in finding that “any benefit
bestowed by relocation to Austin, Texas, could not outweigh the
detrimental impact suffered by limiting Father’s relationship with
[Child] to summer and holiday visitations[?]”
Issue III. Whether the trial court erred in finding that the Mother
failed or was required to exhaust all alternatives in Lawrence
County to attempt to provide a financially stable lifestyle for her
family before attempting to relocate to Austin, Texas[?]
Issue IV: Whether the trial court erred in failing to take into
consideration as part of the mother’s request for relocation that
the father currently provides very minimal, if any, financial
support for the minor child[?]
Issue V: Whether the trial court erred in finding that the
father/daughter relationship could not be preserved if the
mother relocated to Austin, Texas[?]
Mother’s Brief at 4 (full capitalization omitted).
Initially, we observe that, as the custody trial in this matter was held
in March of 2015, the Child Custody Act, 23 Pa.C.S. § 5321 et seq. (the
“Act”), is applicable. C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa. Super. 2012)
(holding that if the custody evidentiary proceeding commences on or after
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the effective date of the Act, i.e., January 24, 2011, the provisions of the Act
apply).
Our scope and standard of review is set forth below:
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
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.
C.R.F., 45 A.3d at 443 (citation omitted).
We have also stated:
[t]he discretion that a trial court employs in custody matters
should be accorded the utmost respect, given the special nature
of the proceeding and the lasting impact the result will have on
the lives of the parties concerned. Indeed, the knowledge
gained by a trial court in observing witnesses in a custody
proceeding cannot adequately be imparted to an appellate court
by a printed record.
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (quoting
Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)).
In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), we
observed the following regarding an abuse of discretion standard:
Although we are given a broad power of review, we are
constrained by an abuse of discretion standard when evaluating
the court’s order. An abuse of discretion is not merely an error
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of judgment, but if the court’s judgment is manifestly
unreasonable as shown by the evidence of record, discretion is
abused. An abuse of discretion is also made out where it
appears from a review of the record that there is no evidence to
support the court’s findings or that there is a capricious disbelief
of evidence.
Id. at 18-19 (quotation and citations omitted).
With any custody case decided under the Act, the paramount concern
is the best interests of the child. See 23 Pa.C.S. §§ 5328, 5338. Section
5338 of the Act provides that, upon petition, a trial court may modify a
custody order if it serves the best interests of the child. 23 Pa.C.S. § 5338.
Section 5323 of the Act provides for the following types of custody
awards:
(a) Types of award.—After considering the factors set forth in
section 5328 (relating to factors to consider when awarding
custody), the court may award any of the following types of
custody if it is in the best interest of the child:
(1) Shared physical custody.
(2) Primary physical custody.
(3) Partial physical custody.
(4) Sole physical custody.
(5) Supervised physical custody.
(6) Shared legal custody.
(7) Sole legal custody.
23 Pa.C.S. § 5323.
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In A.V. v. S.T., 87 A.3d 818 (Pa. Super. 2014), this Court explained
the trial court’s duty to explain its custody decision. We opined:
“All of the factors listed in section 5328(a) are required to be
considered by the trial court when entering a custody order.”
J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis
in original). Section 5337(h) requires courts to consider all
relocation factors. E.D., supra at 81. The record must be clear
on appeal that the trial court considered all the factors. Id.
Section 5323(d) provides that a trial court “shall delineate
the reasons for its decision on the record or in open court or in a
written opinion or order.” 23 Pa.C.S.A. 5323(d). Additionally,
“section 5323(d) requires the trial court to set forth its
mandatory assessment of the sixteen [Section 5328 custody]
factors prior to the deadline by which a litigant must file a notice
of appeal.” C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013),
appeal denied, 70 A.3d 808 (Pa. 2013). Section 5323(d) applies
to cases involving custody and relocation. A.M.S. v. M.R.C., 70
A.3d 830, 835 (Pa. Super. 2013).
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, 336 (Pa. Super. 2013), appeal
denied, 68 A.3d 909 (Pa. 2013). A court’s explanation of
reasons for its decision, which adequately addresses the relevant
factors, complies with Section 5323(d). Id.
A.V., 87 A.3d at 822-823.
Moreover, “[w]hen a custody dispute involves a request by a party to
relocate, we have explained ‘there is no black letter formula that easily
resolves relocation disputes; rather, custody disputes are delicate issues that
must be handled on a case-by-case basis.’” C.M.K. v. K.E.M., 45 A.3d 417,
421 (Pa. Super. 2012), (quoting Baldwin v. Baldwin, 710 A.2d 610, 614
(Pa. Super. 1998)). As the party proposing the relocation, Mother had the
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burden of establishing that the relocation will best serve the interests of the
children as shown under the factors set forth in section 5337(h). C.M.K., 45
A.3d at 427 n.1; 23 Pa.C.S. § 5337(i)(1). Each party had the burden of
establishing the integrity of his or her motives in either seeking or opposing
relocation. C.M.K., 45 A.3d at 427 n.1; 23 Pa.C.S. § 5337(i)(2).
In J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011), our Court
explained that in any child custody case, the primary concern is the best
interests of the Child. Section 5328(a) of the Act sets forth the best interest
factors that the trial court must consider. E.D. v. M.P., 33 A.3d 73, 80-81,
n.2 (Pa. Super. 2011). Further, with regard to relocation, “Section 5337(h)
mandates that the trial court shall consider all of the factors listed therein,
giving weighted consideration to those factors affecting the safety of the
child.” E.D., 33 A.3d at 81 (emphasis in original). Here, because Mother is
seeking to relocate with Child, the trial court was required to consider both
the section 5328(a) custody/best interest factors and the section 5337(h)
relocation factors.
The trial court addressed the custody/best interest factors under
section 5328(a), and found:
(1) Which party is more likely to encourage and permit frequent
and continuing contact between the child and another party.
Father and Mother both encourage and permit contact
between the other party and the minor child. Father and Mother
have testified to times when they were able to modify the
[c]ourt[-]ordered custody arrangements without incident, but
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Father does become frustrated that Mother is not willing to
comply with Father’s requests.
(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.
There has not been sufficient evidence to warrant a finding
of abuse committed by either party toward each other or the
minor child.
(3) The parental duties performed by each party on behalf of the
child.
Both Mother and Father perform all the necessary tasks
associated with raising the minor child when they are exercising
custody. Mother and Father both play a strong role in caring for
the minor child since the minor child’s birth. Mother and Father
both demonstrate a present willingness and capability to care for
[Child].
(4) The need for stability and continuity in the child’s education,
family life and community life.
The minor child has always lived primarily with Mother, but
Father enjoys a liberal partial custody schedule. The parties
currently live very close to each other, and this provides for
easier transitions during custody exchanges. [Child] is less than
three years old, so the [c]ourt’s consideration of [Child’s] need
for stability and continuity is limited to [Child’s] home life at
Mother’s residence and Father’s residence.
(5) The availability of extended family.
Father has a very strong support system in the Lawrence
County area. Father lives with his parents, who play a
substantial role in [Child’s] upbringing. Mother’s family support
in Lawrence County is limited to maternal grandmother and
Mother’s current husband, [J.M.].
(6) The child’s sibling relationships.
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[Child] is the only child born between the parties.
Mother’s second child, [L.M., a son born in November of 2014] to
her current husband is [Child’s] half-sibling. Although L.M. is
very young, the testimony established that [Child] enjoys being
around her half-brother. Any custody arrangement entered
must foster this relationship.
(7) The well-reasoned preference of the child, based on the
child’s maturity and judgment.
Based on the child’s age, this factor shall not be
considered by the [c]ourt in reaching a determination.
(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.
The testimony presented did not include sufficient evidence
to support a finding regarding a party’s attempt to turn the child
against the other parent. The [c]ourt will not consider this factor
in its determination.
(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.
Both Mother and Father are able to provide the minor child
with a loving and stable environment. Furthermore, the [c]ourt
is satisfied that both Mother and Father care for the minor child’s
emotional needs while she is in their custody.
(10) Which party is more likely to attend to the daily physical,
emotional, developmental, educational and special needs of the
child.
Similar to the [c]ourt’s determination under subsection
nine, both Mother and Father are able to attend to the minor
child’s daily needs. The [c]ourt recognizes that Father is
extremely dependent upon his parents for his own physical,
educational and financial needs, and thus, the minor child is also
when she is in Father’s custody. Alternatively, however, Mother
is dependent upon her husband because [J.M.] is the only source
of income in Mother’s residence. The parties are extremely
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young and their dependence upon others is indicative of their
youth.
(11) The proximity of the residences of the parties.
The parties currently reside within two city blocks from one
another. Father and Mother can easily walk to the other’s
residence. This fact promotes a very liberal custody schedule
even when [Child] becomes of school age because the parties
reside in the same school district.
(12) Each party’s availability to care for the child or ability to
make appropriate child-care arrangements.
The [c]ourt is satisfied that both parties are able to care
for the minor child while she is in their custody. Father’s
testimony establishes that Father has a stronger support system
because of his parents and extended family. Mother, however,
can rely upon [J.M.] for assistance, and after observing [J.M.]
during his testimony, the [c]ourt finds [J.M.] to be very sincere
and dependable in this regard.
(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.
Each party testified that there can be high levels of conflict
and poor communication between them. Mother has displayed
poor temperament when communicating with Father, which in
turn causes Father to be despondent. Mother and Father have
attended communication/co-parenting counseling, which helped
them for a short period of time.
(14) The history of drug or alcohol abuse of a party or member
of a party’s household.
Father previously had one Driving While Under the
Influence charge in 2013. Father completed the ARD program
without further incident. Mother has no involvement with drug
abuse or improper alcohol use.
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(15) The mental and physical condition of a party or member of
a party’s household.
Mother and Father are both in good physical and mental
health.
Trial Court Opinion, 5/12/15, at 13-18 (emphasis in original).3 Moreover,
the trial court addressed the relocation factors set forth in section 5337(h),
finding as follows:
(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.
[Child] has a very strong relationship with Mother and
Father. Mother has served as the primary caregiver since [Child]
was born, but Father has been actively involved in parenting
[Child] following her birth. The evaluation submitted by Dr.
Lunnen establishes that [Child’s] relationship with each parent is
healthy and well-established.
(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.
[Child] is presently three years old. She is developing
normally and appropriately; and, therefore, has no special
needs. The [c]ourt does believe[,] however, that [Child] is old
enough to be cognitive of the drastic changes relocating to
Austin, Texas would create. Mother’s proposed relocation will
permit Mother to continue serving as [Child’s] primary caregiver,
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3
Effective January 1, 2014, the statute was amended to include an
additional factor at 23 Pa.C.S. § 5328(a)(2.1) (providing for consideration of
child abuse and involvement with child protective services). Although
applicable at the time of the custody hearings in this matter, there was no
evidence that would have required the trial court’s consideration of this
factor.
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and [Child] is not old enough to experience a change in school
system as a result of the move. The [c]ourt is concerned about
the emotional impacts that [Child] could face because [Child]
has a very strong relationship with Father and Father’s family.
This relationship would be negatively impacted by relocating
because of the distance between New Castle, Pennsylvania and
Austin, Texas.
(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.
This factor creates significant concerns for the [c]ourt in
evaluating Mother’s request to relocate. Father currently enjoys
custody of [Child] every Wednesday evening and every
weekend. The parties could never maintain such a liberal
visitation schedule if Mother moves with the minor child because
of the distance and limited financial resources available to the
parties. Although Mother proposes that Father could have
extensive summer and holiday visitation, Mother could not
articulate a viable plan to pay for the child’s airfare or alternative
transportation expenses. Even if the custody changes were
effectuated, summer and holiday visitation could not adequately
perverse [sic] Father’s relationship with [Child] considering the
fact that Father typically sees [Child] three to four days a week.
(4) The child’s preference, taking into consideration the age and
maturity of the child.
Given the child’s young age, the parties did not offer the
minor child’s testimony in support of their respective positions.
Therefore, this factor is not before the [c]ourt for consideration.
(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.
There was insufficient evidence presented during these
proceedings to warrant a finding that either party has tried to
inhibit the minor child’s relationship with the opposing party. In
fact the [c]ourt received testimony that both Father and Mother
place value on the other party in their parental role. The [c]ourt
reaches this conclusion despite Father’s contention that Mother
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has been verbally aggressive and oppressive during several
custody exchanges. The [c]ourt believes the disagreements
sustained by the parties are not untypical of young parents who
have opposing beliefs regarding the custody of a mutual child.
(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.
Mother’s proposed relocation is premised upon her
husband’s desire to obtain employment at his family’s
restaurant. [J.M.] testified that his mother offered him a
position as head chief [sic]/manager of her restaurant, which
would be a substantial increase in wages for [J.M.]. [J.M.]
testified as to his efforts to obtain comparable employment in
the Lawrence County and surrounding areas. [J.M.] stated that
he was only able to secure a job at Wal-[M]art making $9.20 per
hour. [J.M.] typically works thirty-three hours per week.
[J.M.’s] current income is inadequate to financially support all of
his family’s needs, and [J.M.] and Mother rely on medical
assistance and food stamps.
Mother believes that if she could move her family to
Austin, Texas, [J.M.’s] increase in income could promote her
family’s financial security. Mother even speculates that she
might be able to attend college after they move and become
stabilized.
In considering the benefits proposed by Mother, the
[c]ourt believes that, other than the possibility of improved
financial security, Mother’s quality of life would not drastically
change. Mother is currently a full-time caregiver for her two
children and homemaker. This would not change if Mother
relocated. Mother’s support system is primarily based in the
local areas, and she would be completely dependent on [J.M.’s]
extended family if they moved. If Mother and [J.M.] moved,
they would be living with [J.M.’s] parents until they secured
enough savings to purchase their own home.
Additionally, the [c]ourt believes that Mother’s desire to
attend college is not dependent upon moving, and that Mother
could fulfill her desire to further her education locally.
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(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.
The [c]ourt’s analysis under this factor is very similar to its
preceding discussion under factor six. [Child] clearly has the
opportunity to enjoy increased financial stability through her
family, but it comes at the cost of leaving a well[-]established
support system and relationship with Father. Although Mother
did present testimony as to her proposed household and
surrounding school district, the [c]ourt cannot conclusively infer
that either would be better than Mother’s current household and
the schooling currently available to [Child].
(8) The reasons and motivation of each party for seeking or
opposing the relocation.
Mother’s desire to relocate is sincere; Mother believes that
if her husband can obtain better employment, Mother and [J.M.]
could create a better lifestyle for their children.
Alternatively, Father’s objections to Mother’s relocation are
sincere. Father believes that if Mother moves to Austin, Texas
with [Child] he will not play a strong parental role in [Child’s]
daily life.
(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.
There has been no evidence regarding abuse committed by
either party or that the minor child is at risk of harm in either
household.
Trial Court Opinion, 5/12/15, at 8-13 (emphasis in original).
Mother argues that the trial court erred in failing to grant her request
to relocate with Child to Austin, Texas, because the relocation was in Child’s
best interest, as it would enhance the quality of life for both her and Child.
Mother claims that the most significant benefits of relocating would be that
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Mother’s husband, J.M., could work for his family’s restaurant, thereby
increasing the family income from approximately $900 per month to $3,000
per month. She asserts J.M. would have permanent employment as a chef
at his family’s restaurant, Mother could be a stay-at-home mother for Child
and her other child, and Mother would have the potential to continue her
education in a Texas college. Mother’s Brief at 8-16.
The trial court considered each of these matters, and determined that
they were not due any additional weight. As we explained above, 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.
C.R.F., 45 A.3d at 443. We conclude that the trial court’s conclusions are
not unreasonable under the circumstances presented here. As 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, we will
not do so here. Id.
In her second issue, Mother contends that the trial court erred in
finding that any benefit bestowed by relocation did not outweigh the
potential detrimental impact suffered by limiting Father’s relationship with
Child to summer and holidays. Mother’s Brief at 16-17. Mother claims that
this finding gives greater weight to one specific factor and fails to consider
all of the relocation factors equally. Id.
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We find no merit to this contention. After review of the trial court’s
opinion, it is readily apparent that the trial court did not improperly give
weight to one factor or fail to consider the other relocation factors. It was
within the trial court’s province to weigh the relocation factors and assess
Child’s best interest. C.R.F., 45 A.3d at 443.
In her third issue, Mother asserts that the trial court erred in requiring
Mother to exhaust all alternatives in Lawrence County, Pennsylvania, prior to
attempting to relocate, as this is not a requirement prior to a party
requesting relocation, and puts an unfair restriction or condition on the
party. Mother’s Brief at 17-19. Again, we find no merit to this contention.
The trial court did not place any requirement on Mother in addition to the
statutory relocation factors, but rather, found that the evidence related to
those factors weighed against Mother. C.R.F., 45 A.3d at 443.
In her fourth issue, Mother argues that the trial court erred in failing to
take into consideration, as one of the relocation factors, that Father
currently provides only minimal financial support for Child, in the amount of
$100 a month. Mother’s Brief at 19-20. In assessing factor ten of the
custody/best interest factors under section 5328(a), the trial court stated:
The [c]ourt recognizes that Father is extremely dependent upon
his parents for his own physical, educational and financial needs,
and thus, the minor child is also when she is in Father’s custody.
Alternatively, however, Mother is dependent upon her husband
because [J.M.] is the only source of income in Mother’s
residence. The parties are extremely young and their
dependence upon others is indicative of their youth.
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Trial Court Opinion, 5/12/15, at 16.
In its opinion that accompanied the order denying Mother’s petition to
relocate, the trial court explained, “The [c]ourt believes that if Father
finishes college, he will be in a better position to achieving independence.”
Trial Court Opinion, 5/12/15, at 20. We find no merit to Mother’s contention
that the trial court failed to consider the amount of financial support that she
receives from Father for Child. The trial court properly weighed this
evidence as one of the custody/best interest factors in relation to other
considerations under 23 Pa.C.S. § 5337(h)(10). As repeatedly stated, it was
within the trial court’s province to weigh the relocation factors and assess
Child’s best interest. C.R.F., 45 A.3d at 443.
In her fifth issue, Mother contends that the trial court erred in finding
that the father-daughter relationship could not be preserved if Mother
relocated to Austin, Texas, because there was nothing in the testimony to
indicate that this relationship could not be preserved with the alternative
partial custody offered by Mother. Mother’s Brief at 20-21. In addressing
this issue, the trial court concluded:
After reviewing all of the statutory factors pertaining to
Mother’s request to relocate, in addition to the statutory factors
pertaining to Father’s request for modification, the [c]ourt
determines that Mother’s request to relocate must be denied.
The [c]ourt bases its determination on the fact that [Child] has a
very well-established relationship with both Father and Mother.
[Child] enjoys regular and frequent contact with Father and his
extended family, and the [c]ourt believes that any benefit
bestowed by a relocation to Austin, Texas could not outweigh the
detrimental impact suffered by limiting Father’s relationship with
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[Child] to summer and holiday visitation. In reaching this
determination, the [c]ourt further considered the case of C.M.K.
v. K.E.M., 45 A.3d 417 (Pa. Super. 2012). In C.M.K., the
Superior Court of Pennsylvania affirmed the trial court’s ruling
that petitioner’s/mother’s request to relocate was not in the
minor child’s best interest because the relocation would
substantially impair the respondent’s/father’s ability to preserve
his strong parental relationship with the minor child. Id. at 427.
The [c]ourt considered the fact that respondent/father was
extremely involved in the minor child’s life and participated in
many of the child’s daily activities. Id. Although
petitioner/mother[’s] request to relocate was from Grove City,
Pennsylvania to Erie, Pennsylvania, a distance of only 68 miles,
the trial court held, and the Superior Court agreed, that such a
move presented de minimis improvements to the minor child’s
overall quality of life. Id.
Furthermore, the [c]ourt finds that Mother’s request is
primarily premised upon [J.M.’s] desire to pursue a career
opportunity with his family’s restaurant. While Mother’s
objectives are sincere, the [c]ourt is not satisfied that Mother
has exhausted reasonable alternatives to providing a more
financially stable lifestyle for her family. Many of the additional
benefits referenced by Mother could be achieved locally and are
not subjective to relocation entirely.
Additionally, in evaluating Father’s request to modify the
current Custody Order, the [c]ourt believes that a modification is
not appropriate at this time. Father wishes to implement a 50-
50 custody schedule; however, Father has extensive
commitments to his college education. Father attends classes
daily, and the [c]ourt cannot realistically implement an equal
custody schedule knowing that Father will not be available to
care for [Child] for substantial periods of time. The [c]ourt
believes that if Father finishes college, he will be in a better
position to achieving independence.
The [c]ourt accredits Mother with being [Child’s] primary
caregiver, and the [c]ourt believes that in order to secure a
consistent schedule, this arrangement should continue for a
period of time. The [c]ourt believes that the issues raised by
each party during these proceedings should cause the parties to
strongly re-evaluate some of their parenting choices, and hopes
that, following the entry of this Opinion, the parties could agree
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to begin a fresh start to their co-parenting and communication
methods.
Trial Court Opinion, 5/12/15, at 18-20.
We conclude that Mother’s argument lacks merit. The trial court
properly considered all of the custody/best interest and relocation factors
and determined that Mother failed to sustain her burden of establishing that
the third relocation factor, 23 Pa.C.S. § 5337(h)(3), should be weighted in
Mother’s favor. The trial court held:
Although Mother proposes that Father could have extensive
summer and holiday visitation, Mother could not articulate a
viable plan to pay for the child’s airfare or alternative
transportation expenses. Even if the custody changes were
effectuated, summer and holiday visitation could not adequately
perverse [sic] Father’s relationship with [Child] considering the
fact that Father typically sees [Child] three to four days a week.
Trial Court Opinion, 5/12/15, at 9.
The trial court properly weighed this evidence as part of its
assessment of the first, second, and third relocation factors. 23 Pa.C.S. §
5337(h)(1), (2), and (3). It was within the trial court’s province to weigh
the relocation factors and assess Child’s best interest. C.R.F., 45 A.3d at
443.
In her brief, Mother sets forth the ten relocation factors, casting the
facts in a light most favorable to herself. Mother asserts:
When evaluating all of the factors associated with the
relocation and in viewing those as to what is in the best interests
of the minor child, . . . it clearly establishes that the Trial Court
erred in finding that the mother failed to meet her burden of
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establishing that the relocation to Austin, Texas, was in the
minor child’s best interests.
Mother’s Brief at 15.
Mother argues that the trial court improperly considered the C.M.K.
case as precedent, and she argues that C.M.K. is inapplicable to the instant
appeal. We do not agree. Although Mother desires that the relocation
factors are weighted in her favor, the trial court must consider all of the
factors on a case-by-case basis and make a decision that is in the best
interest of the child, taking into account the child’s physical, intellectual,
moral, and spiritual well-being. S.J.S. v. M.J.S., 76 A.3d 541, 554 (Pa.
Super. 2013) (citation omitted) (emphasis added). In S.J.S., a panel of this
Court affirmed the denial of a mother’s petition to relocate with her two
minor daughters from Erie County, Pennsylvania, to Buckingham, Bucks
County, Pennsylvania. The panel stated:
No doubt, the cost and logistics of [the father] maintaining
contact with his daughters from across the state would weigh
against relocation unless other factors militated strongly in favor
[of relocation]. We agree with the trial court that there is little
to favor relocation here. The children are doing well in school
and their activities, they have a strong bond with their [f]ather
and their extended families in Erie, [the mother’s] employment
prospects in Buckingham are nebulous at best, and [the
mother’s] motives for moving do not appear to be driven by her
children’s best interests.
S.J.S., 76 A.3d at 554.
After a careful review of the record in this matter, including the
testimony and documentary evidence, the parties’ briefs, and the relevant
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law, we find no error or abuse of discretion on the part of the trial court in
finding that Mother failed to sustain her burden in the present appeal. As in
S.J.S., Mother failed to present sufficient evidence to convince the trial court
that her relocation with Child to Austin, Texas, was driven by Child’s best
interest, as opposed to her own. Accordingly, we affirm the order of the trial
court denying Mother’s petition for relocation.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/5/2016
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