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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
L.M., MOTHER IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
R.S., FATHER
Appellant No. 2072 EDA 2016
Appeal from the Order Entered June 22, 2016
In the Court of Common Pleas of Chester County
Civil Division at No(s): 2014-06080
BEFORE: OTT, J., SOLANO, J. AND JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED DECEMBER 16, 2016
R.S. (“Father”) appeals from the custody order entered in the Chester
County Court of Common Pleas, which granted a relocation petition in favor
of L.M. (“Mother”). After careful review, we affirm.
The trial court set forth the relevant facts and procedural history of
this appeal as follows:
[Mother] and [Father] were married in 2005. They are the
parents of three minor children: [N.S] (d.o.b. 1/…/09),
[A.S] (d.o.b. 10/…/10), and [Ni.S.] (d.o.b. 12/…/12). The
parties separated in 2014. On June 30, 2014, Mother filed
a [c]omplaint for [c]ustody of the minor children. After a
conciliation conference, a custody [o]rder was entered on
December 10, 2014, granting the parties shared legal
custody, primary physical custody to Mother, and partial
physical custody to Father.
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On October 8, 2015, Father filed a [p]etition to [m]odify
[c]ustody, and on October 14, 2015, Father filed an
[a]mended [p]etition to [m]odify [c]ustody.[1] On
December 22, 2015, Mother served Father with a notice of
proposed relocation. On January 13, 2016, Father filed a
[c]ounter-[a]ffidavit regarding relocation. On February 5,
2016, Mother filed a [p]etition for [r]elocation.
The parties had a trial before [the trial court] on June 7
and June 8, 2016, at the conclusion of which I reviewed
the factors set for[th] at 23 [Pa.C.S.] § 5337(h), and
ultimately granted Mother’s request to relocate with the
children to Poolesville, Maryland.
Trial Court 1925(a) Opinion, filed August 26, 2016, at 1-2.
On June 17, 2016, the trial court granted Mother’s petition for
relocation.2 On June 29, 2016, Father filed a notice of appeal and a concise
statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925.
Father raises the following issues for our review:
1. Did the trial court err in failing to find that the proposed
move would significantly impair the ability of the non-
relocating party (“Father”) to exercise his custody rights?
2. Did the trial court abuse its discretion and err in its
conclusion when it failed to consider the impact the
distance between Father and children would have on
Father’s future interaction with his children and the
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1
The petition to modify custody and the amended petition to modify custody
requested the court to add a provision requiring Mother to instruct their au
pair agency or future agencies to place Father on the contact list for any
notifications regarding the children. The parties entered into a stipulation
for agreed order of custody on December 21, 2015 to resolve this matter in
Father’s favor.
2
This order was docketed on June 22, 2016.
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feasibility of preserving or developing the relationship
between Father and the children at this young age[?]
3. Did the trial court err in failing to find that the evidence
of the benefits to be gained by the move were adequate to
meet the burden of showing the relocation would serve the
best interests of the children?
4. Did the trial court abuse its discretion and err in its
conclusion that Mother carried her burden of production on
the issue of her ability to work remotely [where] Mother
failed to produce any support for her position that the
opportunity to work remotely with her current employer
was limited to a move to Maryland; and not available to
her at her current residence in Pennsylvania[?]
5. Did the trial court abuse its discretion and err in its
conclusion that Mother’s ability to work remotely from
home in Maryland, five (5) days a week versus her current
two (2) day a week arrangement at home in Pennsylvania,
enhanced, significantly or otherwise, Mother’s quality of
life such that it warranted a fundamental change to
Father’s relationship with his three children[?]
6. Did the trial court abuse its discretion and err in not
considering the difference in the educational opportunities
afforded to the children in their current location in
Pennsylvania versus the educational opportunities in
Maryland[?]
7. Did the trial court abuse its discretion and err in its
conclusion that the relocation would enhance Mother’s
general quality of life financially [where] Mother’s move
provides no greater employment opportunity and her
argument that housing was more affordable was
speculative[?]
8. Did the trial court abuse its discretion and err in
permitting the move without requiring notice to Father of
any specifics regarding her move; including but not limited
to her specific housing arrangements[?]
9. Did the trial court abuse its discretion and err in
concluding that the move provided Mother and children
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with an emotional benefit and enhanced their quality of life
[where a]ny emotional benefit to Mother of children from
the move to Maryland is equally available to the children in
Pennsylvania and does not warrant a fundamental change
to the Father’s relationship with his children[?]
Father’s Brief at 13-15.
In his combined issues, Father argues the trial court erred in
determining that Mother established that the relocation would serve the best
interest of the children pursuant to 23 Pa.C.S. § 5337(h). In his first three
issues, he claims the court erred in determining the move would not impair
his ability to exercise his custodial rights. Father’s Brief at 20. In his
remaining issues, Father contends the trial court improperly concluded that
Mother’s move to Maryland would improve Mother and the children’s
financial quality of life. Father’s Brief at 24-25. Father concludes the trial
court’s ruling that granted Mother’s relocation petition exceeded its
discretionary power. We disagree.
Our scope and standard of review of a custody order are as follows:
[T]he appellate court is not bound by the deductions or
inferences made by the trial court from its findings of fact,
nor must the reviewing court accept a finding that has no
competent evidence to support it…. However, this broad
scope of review does not vest in the reviewing court the
duty or the privilege of making its own independent
determination.... Thus, an appellate court is empowered
to determine whether the trial court’s incontrovertible
factual findings support its factual conclusions, but it may
not interfere with those conclusions unless they are
unreasonable in view of the trial court’s factual findings;
and thus, represent a gross abuse of discretion.
* * *
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[O]n issues of credibility and weight of the evidence, we
defer to the findings of the trial [court] who has had the
opportunity to observe the proceedings and demeanor of
the witnesses. The parties cannot dictate the amount of
weight the trial court places on evidence. Rather, the
paramount concern of the trial court is the best interest of
the child. Appellate interference is unwarranted if the trial
court’s consideration of the best interest of the child was
careful and thorough, and we are unable to find any abuse
of discretion.
A.V. v. S.T., 87 A.3 d 818, 820 (Pa.Super.2014) (quoting R.M.G., Jr. v.
F.M.G., 986 A.2d 1234, 1237 (Pa.Super.2009)).
Section 5328 provides an enumerated list of sixteen factors a trial
court must consider in determining the best interests of a child when
awarding any form of custody:
§ 5328. Factors to consider when awarding custody
(a) Factors.—In ordering any form of custody, the
court shall determine the best interest of the child by
considering all relevant factors, giving weighted
consideration to those factors which affect the safety of the
child, including the following:
(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and
another party.
(2) The present and past abuse committed by a party
or member of the party’s household, whether there is a
continued risk of harm to the child or an abused party and
which party can better provide adequate physical
safeguards and supervision of the child.
(2.1) The information set forth in section 5329.1(a)
(relating to consideration of child abuse and involvement
with protective services).
(3) The parental duties performed by each party on
behalf of the child.
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(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.
(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. § 5328(a).
Before granting a petition for relocation, the court additionally must
consider the following relocation factors:
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(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.
(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. § 5337(h).
Additionally,
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(1) The party proposing the relocation has the burden of
establishing that the relocation will serve the best interest
of the child as shown under the factors set forth in
subsection (h).
23 Pa.C.S. § 5337(i).
Further, the court must delineate the reasons for its decision to modify
an existing custody order either in open court or in a written opinion or
order. A.V. v. S.T., 87 A.3d 818, 822 (Pa.Super.2014).
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. A court’s explanation of reasons for its
decision, which adequately addresses the relevant factors,
complies with Section 5323(d).
A.V., 87 A.3d at 822-23 (internal citations and quotation marks omitted).
Here, the record reflects that the court conducted a two day trial to
address Mother’s proposed relocation. After hearing testimony from seven
witnesses, including Mother and Father, the court analyzed, in open court,
the best interest of the child factors and the relocation factors enumerated in
the Child Custody Act. See N.T., 6/8/16, at 487-489 (discussing best
interest of the Child factors listed in 23 Pa.C.S. § 5328(a)(1)-(16)), 490-
504 (discussing relocation factors listed in 23 Pa.C.S. § 5337(h)). The court
then stated:
[The] factors do militate in favor of granting the relocation.
It is extremely difficult for me, but I believe that what I
have heard is that it will be in the children’s best interest
to grant this relocation, that it will not significantly or even
barely impair the amount of custodial time that [F]ather
has with his children. That it is very possible that, if the
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parties will work together, he will enjoy greater time with
his children than he has up to this point.
N.T., 6/8/16, at 505.
The court further reasoned, in relevant part:
Mother intends to move to Poolesville, Maryland, a two-
and-a-half hour drive from Father’s residence in Newtown
Square, Pennsylvania. The distance is approximately 150
miles. Mother proposed that the parties meet at a half-way
point. Mother testified that if she is permitted to move with
the children to Maryland, she will be flexible with the
custody schedule if Father requests additional time or a
change in the schedule….
Mother’s willingness to drive the children half way to
Father’s residence and willingness to adjust the custodial
periods to accommodate Father’s schedule will lessen the
inconvenience to Father of driving 150 miles during his
custodial periods….
In determining whether the move to Maryland would
significantly impact Father’s ability to exercise his custodial
rights, I considered the nature, quality, extent of
involvement and duration of the children's relationship with
each party. Mother testified that while the parties were
together, she got the children up in the morning, gave
them breakfast, drove [N.S.] to school, did all of the
cooking and cleaning, attended all of the children’s
extracurricular activities, attended the children’s medical
and dental appointments and took the children to events
during the holidays. She stated that Father “was more
hands off” and “more passive.”…
[Father] admitted that after the first custody conciliation
conference he requested a reduction in his custodial time,
eliminating the provision in the August 14, 2014
[t]emporary [o]rder that Father have physical custody of
the children every other Wednesday from 8 a.m. to 8
p.m.…
Father testified that he wants to increase his time with the
children because he now has a more flexible work
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schedule. He does not have written confirmation from his
employer agreeing to the flexible work schedule.…
Since the parties separated, the older children… attend
tennis and swimming lessons at the YMCA on Saturday
mornings. Mother stated that she takes the children … to
the YMCA, stays for the lessons, and drives them home.…
Mother stated that Father has never attended any of the
children’s Saturday activities at the YMCA….
Mother testified that she takes the children to all of their
doctor and dentist appointments. Since 2014, Father has
attended only one doctor appointment for the children.
Mother stated that Father attended one school activity per
year (Donuts for Dad) and attended two graduation
[c]eremonies….
Mother testified that Father has taken one vacation day
with the children since August of 2014. She wants both
parties to have increased vacation time with the children….
I found Mother’s testimony credible regarding the extent of
Father’s interaction with the children and involvement in
their daily routine….
I understand that due to his work schedule, Father could
not attend school activities and take the children to doctor
and dentist appointments. However, he does not work on
Saturdays and has failed to attend even one of the
children’s Saturday activities. If he truly wanted to
participate in the children’s sports activities, he would have
gone to the YMCA on Saturdays and worked it out so that
there was no confrontation with Mother. … Additionally, in
the last two years, he could have taken a short vacation
with the children if spending time with them was extremely
important to him.
I found that the proposed move would not significantly
impair Father’s ability to exercise his custodial rights as he
had many opportunities in the past to exercise his
custodial rights and declined to take advantage of those
opportunities….
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Mother testified that she presently works three days per
week at the King of Prussia office, and she works two days
per week from home in Devon. She asked to work full time
from her home, but was denied. Mother stated that if she
moves to Maryland, she can work from home five days per
week. It would be a lateral move; her rate of pay would
remain the same. Mother stated that she will have more
time to participate in afternoon activities with the children
if she relocates and works from home five days per week….
Both parties failed to produce documentation from their
employers regarding their proposed new work schedules
and arrangements. Thus, I considered the testimony and
made credibility determinations accordingly….
I considered the evidence and found that any appreciable
difference between the school districts is not material….
Thus, while one district may be ranked higher than
another, I considered the ages, developmental stages,
needs of the children and likely impact the relocation will
have on the children’s physical, educational and emotional
development, and found that relocating to Maryland would
not have a detrimental impact on the children’s physical,
educational and emotional development….
Mother currently rents a three bedroom apartment for
$1926 per month. She stated that if she moves to
Maryland, she can buy a four bedroom townhouse with two
-and-a-half bathrooms. "We would be able to save almost
$600 a month every month buying a home in Poolesville
instead of renting in Devon. From that alone I would be
able to save up for their college.” (N.T. 6/7/16 at 93-94).
Mother testified that her monthly mortgage would be
$1248 plus utilities.
It was clear that Mother had thoroughly analyzed the
respective housing costs and her financial capabilities…. l
credited the concept that the ability to purchase a home
(as opposed to rent) creates stability for her and for the
children….
Mother has family and friends living in Maryland. She
testified that if she moves to Maryland, she will reside
nineteen miles from her parents and fourteen miles from
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her brother and his fiancée. Mother stated [that] the
children have a close relationship with her parents. She
stated that her brother, Lij, is her children’s best friend….
In addition to her parents and brother, Mother has cousins
and family friends in Maryland.
Father testified that the children have a close relationship
with his parents in Pennsylvania. The children have had
birthday parties at Father’s parents’ house.
The emotional benefit to the children of being in close
physical proximity to both sets of grandparents cannot be
overstated. Father’s parents will have the opportunity to
see the children during his weekend custodial periods, as
they do now. Mother stated that if she and the children
moved to Maryland, Father’s time with the children during
the school year will increase because he will have them all
weekend from Friday evening to Sunday evening….
I considered all of the factors in Subsection 5337(h),
including (5) the established pattern of conduct of either
party to promote or thwart the relationship of the child and
the other party. This category weighed heavily against
Father.
Mother testified that [N.S.] told her that Father told the
children that if they moved to Maryland they would never
see him again. Father denied that he made that statement
to the children. Mother testified that Father does not allow
the children to refer to her as “Mommy” in his presence.
They must call her “the other person.” Father denied this
allegation. Mother stated that Father, in front of the
children, has called her short, fat and ugly.… Father denied
that he commented on Mother’s appearance or made any
derogatory remarks about Mother in front of the children….
Mother stated that during Father’s custodial times from
2014 until May 2016, Father did not permit the children to
speak to her by phone….
Father denied that he prevented Mother from speaking to
the children by phone during his custodial times….
Both parties claim harassment from the other party….
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The friction between the parties was not the overriding
factor in my decision to grant relocation. Mother’s ability to
work from home five days per week while the children are
young will enhance the quality of life for Mother and the
children. At the same time, relocation to Maryland will not
significantly impair Father’s relationship with the children
because he will have added custodial time with the
children, including full weekends, assuming he takes
advantage of those opportunities. Father’s relationship
with the children will not be endangered in any way shape
or form by the relocation to Maryland; they will continue to
receive nurturing from him and life instruction from him.
I considered all of the evidence and testimony and
determined that Mother met her burden of proving that
relocation to Maryland would serve the best interests of
the children. See Anderson v. McVay, 743 A.2d 472
(Pa.Super.1999) (trial court did not err in allowing mother
and children to relocate to North Carolina where relocation
would substantially improve the quality of life for mother
and the children, mother would be flexible in making
visitation arrangements, and the visitation arrangement
would allow Father more total time with the children than
he had before mother’s relocation).
Trial Court Pa.R.A.P. 1925(a) Opinion, filed August 26, 2016, at 4-18 (most
citations to the record omitted).
The trial court’s factual findings are supported by the record and
support its factual conclusions. The trial court’s consideration of the best
interest of the children was careful and thorough, and we see no abuse of
discretion.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2016
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