J-S47031-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
B.K., IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
C.N.K., J.R.C., AND R.B.,
v.
D.E.B.,
APPEAL OF: J.R.C.
No. 141 MDA 2016
Appeal from the Order Dated December 22, 2015
In the Court of Common Pleas of Cumberland County
Civil Division at No(s): 2011-5951
BEFORE: SHOGAN, LAZARUS, and JENKINS, JJ.
CONCURRING MEMORANDUM BY SHOGAN, J.: FILED AUGUST 04, 2016
While I agree with the learned Majority’s decision to affirm the trial
court’s denial of Father’s petition to relocate Child, I am compelled to write
separately regarding my concern that the custody factors outlined in 23
Pa.C.S. § 5328(a) were not addressed by the trial court. As this Court held
in A.M.S v. M.R.C., 70 A.3d 830 (Pa. Super. 2013), “[t]he trial court must
consider all ten relocation factors and all sixteen custody factors when
making a decision on relocation that also involves a custody decision.” Id.
at 836. Additionally, in S.W.D. v. S.A.R., 96 A.3d 396 (Pa. Super. 2014),
we explained that if a ruling affects custody or modifies an award of custody,
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consideration of the factors outlined in 23 Pa.C.S. § 5328(a) is required. Id.
at 402-404.
In the instant case, I believe the custody arrangement for Child would
be impacted if Father were permitted to relocate. Although Father’s
proposed relocation would result in what has been characterized as a slight
reduction in custody of Child for Maternal Grandmother and Mother, from 52
overnights to 48 overnights, this is a reduction nonetheless. While the
Majority concludes that Maternal Grandmother’s partial custody rights would
be “essentially the same,” I believe any reduction in a party’s custody time
with Child would be deemed a modification of the custody award.
Moreover, in its Memorandum the Majority acknowledges that Maternal
Grandmother and Mother’s custody of Child would be impacted. The
Majority explains that “[e]ven though Father proposed almost the same
number of ‘overnights,’ those periods of custody would not be on a
consistent week-to-week basis, but rather, interspersed for longer periods
throughout the year,” and as a result, concludes that relocation of Child
would compromise Child’s close bond with Maternal Grandmother and the
developing bond with Mother. Majority Memorandum at 9-10. Additionally,
the Majority asserts that Maternal Grandmother’s current close proximity to
Father makes custody exchanges flexible and frequent, and avails Maternal
Grandmother and Mother the opportunity to attend Child’s school and
sporting events. Id. at 9. Accordingly, one can imagine multiple scenarios
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in which the relocation of Child would impact the custody arrangement
regarding Child. As a result, I conclude that the trial court abused its
discretion in failing to conduct an analysis of the custody factors outlined in
23 Pa.C.S. § 5328(a) in addition to the relocation factors.
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