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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.A.S., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
L.A.S.,
Appellant No. 1347 MDA 2015
Appeal from the Order entered July 7, 2015
in the Court of Common Pleas of Dauphin County
Civil Division, at No(s): 2014-CV-5601-CU
BEFORE: PANELLA, J., OTT, J., and JENKINS, J.
MEMORANDUM BY PANELLA, J. FILED FEBRUARY 17, 2016
L.A.S. (“Mother”) appeals the order of the Court of Common Pleas
of Dauphin County, entered July 7, 2015, that denied her permission to
relocate with her two children to the Lehigh Valley, and granted J.A.S.
(“Father”) shared physical custody and shared legal custody of the parties’
minor children, E.S. (born in June 2008) and L.S. (born in February 2010)
(“Children”). We affirm.
Mother and Father married in 2008 and lived in Allentown,
Pennsylvania at the time. Shortly after L.S. was born, the parties relocated
to the Harrisburg area because Father accepted a full-time job with the
Pennsylvania Air National Guard in Middletown, Pennsylvania. Mother was
working part-time as a registered nurse at St. Luke’s Hospital in Bethlehem,
Pennsylvania. Mother continued to work at St. Luke’s Hospital while the
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family resided in the Harrisburg area. The Children continued to spend
significant time in the Lehigh Valley as Mother would often bring the Children
with her when she traveled to work. The Children were cared for by maternal
grandmother and paternal grandmother, both of whom reside in the Lehigh
area.
Mother and Father separated in May 2012 and Father moved from the
marital residence in July 2012. Mother and Father divorced in December
2012. Following the separation and divorce, Mother and the Children
continued to live in the marital residence in Palmyra, Pennsylvania, as per
the pre-nuptial agreement, and Father moved to suburban Harrisburg.
E.S. is currently seven years old and has completed first grade at East
Hanover Elementary School. L.S. is currently five years old and attends
preschool at Grantville Nursery School. Due to the Children’s young ages,
the trial court did not interview them.
On June 11 and 12, 2015, the trial court conducted a custody hearing
in which both parents testified. The following people testified: Arnold
Shienvold, Ph.D., a licensed psychologist with Reigler, Shienvold, and
Associates; K.E., Mother’s friend; P.P., Mother’s boyfriend; D.P., (“Maternal
Grandmother”); C.S., Father’s work supervisor; T.D., a vocational expert;
K.B., Mother’s neighbor; C.P., Father’s girlfriend; and D.S., (“Paternal
Grandmother”).
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Dr. Shienvold performed a custody evaluation of the parties dealing
with the major issue of whether Mother should be permitted to relocate to
the Lehigh Valley area. Dr. Shienvold assessed the family using a number of
factors that have been identified through research and literature on
relocation. Dr. Shienvold recommended that Mother not relocate and that
the Children remain in the Harrisburg area. He found that there is no
indication that the Children’s lives would be significantly improved if Mother
were permitted to relocate to the Lehigh Valley area. In addition, Dr.
Shienvold testified that, if relocation is granted, the distance between the
parties would cause Father’s level of involvement with the Children’s lives to
decrease. Dr. Shienvold opined that the best interest of the Children would
be served by having both parents remain in the Harrisburg area and
involved in the Children’s lives. When asked to make a recommendation for
a custodial arrangement in the event that Mother were permitted to relocate,
Dr. Shienvold opined that the Children should remain in Harrisburg with
Father.
Mother testified that she currently resides in Palmyra and works at St.
Luke’s Hospital in Bethlehem as an operating room nurse. Mother is required
to work nine twelve-hour shifts during a six-week period and testified that
she has the flexibility to set up her own schedule. Mother also testified that
she could pick up extra shifts during the week if they were available. Mother
began working at St. Luke’s Hospital in 2002 and has continued working
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there. Mother requested permission to relocate to the Lehigh Valley area
because of work, family, and her current relationship with P.P. Mother also
testified that jobs in the Harrisburg area are not comparable to her current
job because of her pay, her ability to make her own schedule, her retirement
account, and the availability of family to provide childcare.
Mother also noted that she wished to relocate to the Lehigh Valley
area because a majority of her family, and some of Father’s relatives, reside
there. Mother noted that she takes the Children to the Lehigh Valley during
her custodial weekends and, if she is working, Maternal Grandmother, P.P.
or her sister cares for them. Mother noted that, if she were permitted to
relocate, she would continue to utilize her family for childcare.
Mother also alleged that she wishes to relocate because her current
boyfriend, P.P., lives in Philipsburg, New Jersey. Mother testified that she
and P.P. have been dating for two years and are planning to get married and
purchase a home together. Mother stated that those plans have been put on
hold pending the outcome of the current custody action. P.P. currently
commutes to New York City for work and also has a child of his own who
lives in Phillipsburg. Therefore, P.P. is prevented from moving to the
Harrisburg area.
On Mother’s custodial weekends, she and the Children frequently stay
at P.P.’s home. Mother testified that the Children have made friends in P.P.’s
neighborhood. P.P. testified that he sees the Children every Friday and the
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Children even have their own room in his home. Mother was unable to
specifically identify a school district in which she wishes to relocate. She
testified that she and P.P. have looked at homes in a number of areas, but
have not settled on one area in particular.
Mother requests primary custody with permission to relocate, and
proposes that Father have custodial time from Friday after school until
Sunday for three weekends a month during the school year. During the
summer, Mother proposes a shared physical custody schedule where Father
has custody from Saturday to Tuesday, or Wednesday if Father is off from
work and every other week.
Father testified that he currently resides in the Central Dauphin School
District, and works at the Pennsylvania Air National Guard base in
Middletown. Father’s current work schedule is 6:00 a.m. until 4:00 p.m.
Thursday through Saturday, plus every other Wednesday and Sunday during
drill weekends. In addition, if Father is working as flight chief or in armor, he
must report to work between 5:00 a.m. and 5:30 a.m. Father’s supervisor
testified that Father can only adjust his current schedule under special
circumstances.
Currently, Father’s custodial periods occur when he is not working and
he is able to care for the Children himself. Father’s girlfriend, C.P., helps out
some Sundays when she has her children and Father testified that the
children get along well together. Father also testified that he and C.P.
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became close because they were going through similar issues and have been
dating for a year and a half. C.P. lives in her own home, but Father testified
that they plan on moving their relationship forward once the respective
custody issues have been settled.
Father is actively involved in the Children’s lives and attends their
activities when possible. Father testified that, if the activity occurs while he
is working, he tries his best to accommodate it. Father also testified that he
attends as many medical appointments as his schedule allows. However,
Mother usually attends all of the Children’s medical appointments, as her
schedule allows her to be available during the week.
Father testified that he opposes Mother’s request for relocation
because it would significantly impair his ability to stay involved in the
Children’s lives. Father also noted that he has concerns with Mother’s past
relationship history as it has led to instability and questions her motives for
relocation. Father is requesting that Mother not be permitted to relocate,
and that the parties share physical custody. In the event that Mother is
permitted to relocate, Father is requesting primary physical custody of the
Children. Father testified that, if he were awarded primary physical custody,
the Children would attend Mountainview Elementary School in the Central
Dauphin School District. In addition, Father testified that he would request
that his work schedule be changed to a weekly schedule of four ten-hour day
shifts.
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Father also stipulated that he would utilize childcare on the days that
he works and, if available, would drive the Children to school. In addition,
C.P. would be able to provide childcare for the Children if needed. C.P. works
for the Department of Veterans Affairs from 7:15 a.m. until 3:30 p.m.
Monday through Friday. Paternal Grandmother also testified that she is
thinking about retirement and would be available to assist Father.
The trial court denied Mother’s request for relocation to the Lehigh
Valley and granted Father shared physical custody and legal custody. This
timely appeal followed.
On appeal, Mother raises four issues.
1. Did the trial court commit an abuse of discretion and an error
of law by denying Mother’s request to relocate with Children
from Harrisburg, Pennsylvania, to the Lehigh Valley area,
where denial of Mother’s request to relocate was not in the
best interest of the Children under the factors provided by 23
Pa.C.S. § 5328(a), 23 Pa.C.S. § 5337(h), and Pennsylvania
case law?
A. Whether the trial court committed reversible error when
it implicitly applied a presumption against relocation?
B. Whether the trial court committed reversible error by
failing to apply the “primary caretaker doctrine” when
deciding whether to allow Mother and the Children to
relocate to the Lehigh Valley, and whether to permit
Mother to retain primary physical custody?
C. Whether the trial court committed reversible error of
law and an abuse of discretion by failing to provide
sufficient weight to the Children’s extended family
relationships in the Lehigh Valley area, and denying the
Children’s opportunity to maintain those relationships?
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D. Whether the trial court committed reversible error and
an abuse of discretion as the trial court’s conclusions
regarding the relevant factors of section 5328(a) and
section 5337(h) are unreasonable in light of the record
and the court’s other factual findings?
2. Did the trial court commit an abuse of discretion and an error
of law by reducing Mother’s periods of physical custody, where
the reduction of Mother’s periods of physical custody was not in
the best interest of the Children pursuant to the factors provided
by 23 Pa.C.S. § 5328(a)?
3. Did the trial court abuse its discretion and commit an error of
law by failing to apply 23 Pa.C.S. § 5327(b), the presumption
that custody shall be awarded to a parent over a third party,
when the court awarded periods of physical custody to Father at
times when Father was unavailable to care for the Children,
where the court effectively provided periods of custody to non-
parent third parties, over Mother?
4. Did the trial court commit an abuse of discretion and an error
of law by entering a custody order which established an
exchange time that [M]other was physically unable to meet, as
evidenced by exhibits provided by [M]other at the custody
hearing?
Mother’s Brief at 7-8.
Our scope and standard of review 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 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.
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C.R.F., III v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).
The primary concern in any custody case is the best interests of the
child. “The best-interests standard, decided on a case-by-case basis,
considers all factors that legitimately have an effect upon the child’s
physical, intellectual, moral, and spiritual wellbeing.” Saintz v. Rinker, 902
A.2d 509, 512 (Pa. Super. 2006) (citation omitted).
In its opinion, the trial court presented a complete analysis of all the
relevant factors enumerated at 23 Pa.C.S.A. § 5328(a) and § 5337(h).
Mother first contends that the trial court abused its discretion in
awarding shared physical custody to Mother and Father and by not allowing
Mother to relocate with Children to the Lehigh Valley area when Mother was
unable to properly identify the new school district where they would reside
and where Mother presented no information regarding the new school
district.
The trial court considered all of the relocation factors laid out in 23
Pa.C.S.A. § 5337(h). The trial court found that, if Mother relocated, the
extent of Father’s involvement would be significantly reduced due to Father’s
work hours and the increased distance to the Lehigh Valley area. In addition,
Dr. Shienvold opined that relocation is generally not preferred for younger
children since the transitions tend to be more difficult. At trial, Dr. Shienvold
testified that L.S. would have a more difficult time due to her vulnerable
personality.
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The trial court reasoned that, although the relocation to the Lehigh
Valley area may enhance Mother’s quality of life overall by reducing the
financial strain and the amount of time spent traveling, Mother created the
situation in which she now finds herself. When Mother and Father relocated
to the Harrisburg area during their marriage, Mother continued to work in
the Lehigh Valley area. Mother briefly attempted to look for a job in the
Harrisburg area, but nothing came to fruition. After Mother and Father
separated, Mother continued to travel to work at St. Luke’s Hospital in
Bethlehem, and began dating a man who lived in New Jersey. However, both
Mother and Father created a life for the Children in the Harrisburg area, and
Father intends to remain in the area with the Children.
The trial court determined that relocation would not enhance the
general quality of life for the Children. The trial court found that the Children
have resided in the Harrisburg area for their entire lives, and have friends,
attend school, have medical providers, and are enrolled in activities in the
area. The trial court noted that Mother never provided a specific area to
which she intended to relocate in the Lehigh Valley area. At trial, Mother
stated that she may relocate to the Saucon Valley, Greenwich Township, or
Lopatcong school districts. Mother provided no testimony that any of the
school districts was superior to school district the Children currently attend.
At the hearing, there was no testimony that the medical providers in
the Lehigh Valley were superior to those the Children currently have.
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However, the trial court noted that, since Mother works at St. Luke’s
Hospital, she may have more personal connections with medical providers in
the Lehigh Valley area than in the Harrisburg area. The trial court also took
under consideration Dr. Shienvold’s opinion that relocation would not provide
a significant benefit to the Children. Thus, the trial court ruled that Mother’s
relocation would not provide a significant benefit to the Children, and was
not in the best interest of the Children.
Mother also argues that the trial court committed reversible error by
failing to apply the “primary caretaker” doctrine when deciding whether to
allow Mother and the Children to relocate to the Lehigh Valley area, and
whether to permit Mother to retain primary physical custody.
However, the trial court correctly found that Mother cites to outdated
case law decided prior to the enactment of the Custody Act to bolster her
claim. The trial court acknowledged that Mother had historically been the
parent who attended to the Children’s medical and educational needs when
considering the best interests factors. However, following the enactment of
the Custody Act, the trial court was not required to give weighted
consideration to Mother’s prior role as primary caretaker when considering
the best interest and relocation factors. See, e.g., W.C.F. v. M.G., 115
A.3rd. 323, 330 (Pa. Super. 2015).
Father conceded that, due to Mother’s working part-time after the
Children were born to the present, Mother had been able to schedule and
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attend more medical and dental appointments. In addition, Mother is able,
due to her part-time job schedule, to be involved at the Children’s school
during the day. However, Father has been, and continues to be, in the
Children’s lives. The record shows that Father has always been involved in
the Children’s activities, attends their recitals, attends medical appointments
when he can, and attends school functions. Moreover, the trial court
properly acknowledged the parental duties that the parents perform on
behalf of the Children and the trial court properly recognized that both
parents performed parental duties to the fullest extent possible in light of
their respective employment. Thus, the trial court was not required to
consider the primary caretaker doctrine in awarding shared physical custody
to the parents.
The trial court did properly consider each parent’s involvement in the
Children’s lives and did not err in granting Father and Mother shared
physical custody of the Children.
Mother also argues that the trial court did not consider the Children’s
extended family relationships in the Lehigh Valley. The trial court found that
Mother correctly stated that one factor Pennsylvania courts have considered
in denying a request for relocation is a child’s strong relation with extended
family. However, Mother fails to cite any case law in which a child’s
relationships with extended family was a deciding factor in granting a
request.
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In this case, the Children already see their maternal and paternal
grandmother and their maternal great grandmother regularly. Although the
other relatives reside in the Lehigh Valley area, the trial court found no
evidence that the Children’s contact with them would increase if Mother
relocated. Even when children have extended family in the proposed
relocation area, the court does not automatically permit the requesting
party, Mother in this case, to relocate.
The fact that the Children’s grandmothers reside in Bethlehem is not
alone satisfactory to grant Mother’s relocation request. The Children
currently see Mother’s mother and father on a regular basis while they
reside in Harrisburg. Moreover, not all of Father’s family resides in the
Lehigh Valley area. Father testified that his father and the rest of his
paternal family reside in Pittsburgh. Therefore, Mother’s argument that the
trial court ignored the custody factor regarding extended family is meritless.
With regard to relocation, Mother also argues that the trial court
committed reversible error and abused its discretion regarding the relevant
factors of section 5328(a) and section 5337(h) as unreasonable in light of
the record and the court’s other factual findings. Mother argues that the trial
court’s analysis of the factors was similar to the trial court’s opinion in
J.R.M. v. J.E.A., 33 A.2d 647 (Pa. Super. 2011). This Court noted in J.R.M.
that the trial court based its decision almost exclusively on the fact that the
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child was breastfeeding and on the parties’ communication difficulty and
failed to consider any other factors.
In direct contrast, the trial court in this case specifically considered
each factor under both section 5328(a) and section 5337(h). The trial court
found that, as to custody factor (3), both parties performed parental duties
for the Children. As to custody factor (5), the trial court noted that both
parties had family in the Lehigh Valley, but that Paternal Grandmother
testified that she was willing and available to assist with care for the
Children in the Harrisburg area. As to custody factor (10), Mother was the
parent who attended the Children’s medical and educational appointments in
light of the fact that since the Children were born, she usually worked at
most two or three days a week. However, Father had attended appointments
when he was able in light of his full-time employment. Both parties attend to
the daily needs of the Children. Both the trial court and Dr. Shienvold found
that Father is actively involved in the Children’s lives and attends all
activities on the days he is available. As to custody factor (12), the trial
court was required only to consider the parties’ abilities to care for the
Children or abilities to make appropriate child care arrangements. While
Mother wants to penalize Father because he works a full time job while she
works only two or three days per week, despite both Children being in
school, this Court has held that a party’s “work schedule may not deprive
[him] of custody if suitable arrangements are made for the child’s care in his
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. . . absence.” Johnson v. Lewis, 870 A.2d 368, 374 (Pa. Super. 2005)
(citation omitted).
As to relocation factor (1), the trial court noted that both parties were
significantly involved in the Children’s lives. Although Mother testified that
Father was not significantly involved in the care of the Children until he
commenced the custody action, Dr. Shienvold and the trial court found that
Father is actively involved in the Children’s lives and attends all activities on
the days that he is available. As to relocation factor (2), Mother seems to
completely ignore Dr. Shienvold’s testimony regarding the impact a
relocation would have on the Children. The trial court noted that Dr.
Shienvold testified that transitions are more difficult for younger children.
L.S. would have a harder time with the transition due to her vulnerable
personality.
As to relocation factor (3), Mother underestimates the negative impact
a relocation would have on Father’s relationship and level of contact with the
Children. Both Father and Dr. Shienvold have testified concerning Father’s
high involvement in the lives of the Children. If Mother were to relocate,
there would be no way for Father to maintain the same relationship he
currently has with the Children. Father would not be able to spend the same
quality time that he currently spends with the Children and would not be
able to attend the Children’s various extracurricular activities.
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As to relocation factor (6), there would be some benefits for Mother
should she be permitted to relocate to the Lehigh Valley area. However,
these factors would not have a positive effect on the Children. Mother states
that it is important that she maintain her employment at St. Luke’s Hospital
in Bethlehem, rather than assuming full-time and potentially more lucrative
employment in the Harrisburg area. While Mother argues that she would
spend more time with the Children if she moved to Bethlehem, Father would
get less time. In addition, if Mother would reside with her paramour, P.P.,
they would be sharing living expenses; however, the relationship between
Mother and P.P. is unstable—both Mother and P.P. testified that, if Mother
could not relocate, their relationship would be in jeopardy.
In addition, Mother’s financial issues would not be completely
remedied simply by living with her paramour. While Mother noted that she
could not continue to reside in her current home, she offered no definitive
budgetary evidence supporting her claim. The trial court did not ignore
Mother’s testimony concerning her financial issues and acknowledged that,
should Mother relocate, she would no longer have to make mortgage
payments. The trial court further noted that, while relocation may reduce
Mother’s financial strain and amount of time Mother spent travelling, the
court could not ignore that Mother created her current situation. After the
parties separated, Mother continued to travel to the Lehigh Valley area for
work and began her relationship with P.P. in disregard of the fact that she
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and Father created a life in the Harrisburg area, where Father intends to
remain. In addition, Mother is very active in the Children’s schooling in
Harrisburg and with friends in her neighborhood and in the PTA. The trial
court found Mother’s argument that she has no friends or life in Harrisburg
unpersuasive.
As to factor (7), the trial court properly determined that the relocation
would not significantly enhance the Children’s lives. The court noted that the
multiple school districts in the proposed relocation area are comparable to
the Children’s current school district; that the Children would not have
access to better medical providers; and that the Children have friends in the
Harrisburg area. The Children already spend time with extended family when
Mother is in Bethlehem. Finally, Dr. Shienvold recommended that Mother not
be permitted to relocate with the Children. Dr. Shienvold testified that there
is no significant benefit to the Children in relocating, and that the Children
are thriving in Harrisburg. Thus, the trial court considered all of these factors
when considering the best interests of the Children.
Based on the relevant custody and relocation factors under sections
5328 and 5337 and based on Dr. Shienvold’s recommendation, the trial
court properly determined that an award of shared physical custody and the
denial of Mother’s relocation request was in the Children’s best interests.
Therefore, the trial court did not err or abuse its discretion.
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In Mother’ second issue she contends that the trial court committed an
abuse of discretion and error of law by reducing Mother’s periods of physical
custody, and that the reduction of Mother’s custodial periods was not in the
best interest of the Children pursuant to 23 Pa.C.S.A. § 5328(a).
In this case, the trial court did consider Dr. Shienvold’s testimony and
determined that it is in the best interests of the Children for the parties to
equally share physical custody, especially where Father’s circumstances have
changed since he and Mother entered into the prior custody agreement. The
trial court noted that it believed the custody order essentially effectuates Dr.
Shienvold’s recommendation and serves the best interests of the Children.
Therefore, the trial court properly considered Dr. Shienvold’s
recommendation.
The trial court determined that it is in the best interests of the Children
for Father to exercise custody during his drill weekends in order to maximize
his custodial time with the Children as he works from 6:00 a.m. until 3:00
p.m. While the prior custody schedule delayed the start of Father’s custodial
time period until Sunday evening, Father is permitted to have custody on
drill weekends whereby his significant other, C.P., and Paternal Grandmother
are available to watch the Children, just as Maternal Grandmother and
Mother’s significant other are available to watch the Children on weekends
that Mother works. In addition, Father’s schedule has changed whereby he is
now off from work on alternating Wednesdays and is available to provide
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direct supervision of the Children. Thus, since Father is available to spend
more quality time with the Children, the trial court did not err in awarding
Mother and Father shared physical custody.
In Mother’s third issue, she contends that the trial court awarded
custody to a third party, and thus 23 Pa.C.S.A. § 5327(b) is applicable.
Mother cites Wiseman v. Wall, 718 A.2d 844 (Pa. Super. 1998), in support
of the position that Father should not be awarded custody on the
Saturday overnights during his drill weekend as he has to work on Sunday
for a few hours.
The trial court found that Wiseman can easily be distinguished. In
Wiseman, the Children were spending long periods of time in daycare or
with Father’s girlfriend. In this case, the Children would be spending five or
six hours in the care of Paternal Grandmother or Father’s girlfriend on one
day each month. Thus, the change is in Children’s best interests because the
Children get to spend more quality time with Father. In addition, Father’s
additional time on alternating Wednesdays will be spent with the Children as
Father does not work on alternating Wednesdays.
While Mother argues that the trial court’s order would reduce the
amount of time Mother’s extended family spends with the Children, it would
only reduce Mother’s custodial time three days each month. Therefore, the
trial court did not award custody of the Children to a third party, and section
5327(b) is not applicable.
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And finally, in issue four, Mother argues that the trial court committed
an abuse of discretion and an error of law by entering a custody order which
established an exchange time of 8:00 p.m. Mother states that she is unable
to return to Harrisburg for custody exchanges.
The record shows that the trial court was merely attempting to
mediate the exchange issue on a temporary basis and made it clear that the
issue would be addressed in the final order. Despite Mother’s testimony that
she has the flexibility to make her own schedule, she now argues that she is
unable to meet in Harrisburg for timely custody exchanges at 8:00 p.m.
The issues concerning the exchange time when Mother is unavailable
and the inappropriate holiday schedule are deemed moot based on the trial
court’s order of August 3, 2015, partially granting Mother’s request for
reconsideration.
The order of the Court of Common Pleas of Dauphin County, entered
July 7, 2015, that denied Mother permission to relocate with her two children
to the Lehigh Valley and granted Father shared physical custody and shared
legal custody of the parties’ minor children is affirmed.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/17/2016
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