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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
R.J.V. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
R.E.V.
No. 1227 WDA 2016
Appeal from the Order Entered July 15, 2016
In the Court of Common Pleas of Blair County
Orphans' Court at No(s): 2015 GN 1929
BEFORE: BENDER, P.J.E., BOWES, J., AND SOLANO, J.
MEMORANDUM BY BOWES, J.: FILED JANUARY 30, 2017
R.J.V. (“Mother”) appeals from the July 15, 2016 custody order
awarding R.E.V. (“Father”) primary physical custody, during the school year,
of their fourteen-year-old daughter K.V., and granting Mother partial custody
as dictated by the terms of the court’s order. We affirm.
Mother and Father married on September 27, 2001, and K.V. was born
of the marriage on April 3, 2002. Mother and Father separated, and
subsequently, agreed to a custody arrangement wherein they shared
custody, rotating physical custody every four days based upon Father’s work
schedule. That agreement persisted throughout the proceedings.
On July 2, 2015, Mother filed a complaint for custody requesting
primary physical custody. At that time, Mother was living in Clearfield,
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Clearfield County, and traveling often to visit family in Bradford, McKean
County. Father resided at the marital residence in Altoona, Blair County. An
evidentiary hearing was held on July 13, 2016, wherein Mother and Father
testified, and K.V. spoke with the court in camera. The court entered an
order dated July 15, 2016, directing Mother and Father to share legal and
physical custody of K.V., and awarding Father primary physical custody
during the school year, with Mother receiving partial custody on alternating
weekends, and one weekday evening each week. Mother filed a timely
appeal and provided a contemporaneous Rule 1925(b) statement of errors
complained of on appeal. The court filed its Rule 1925(a) opinion. This
matter is now ready for our review.
Mother presents two questions for our consideration:
I. Did the trial court abuse its discretion in failing to address
the relocation factors in its opinion denying the relocation
request of Mother?
II. Did the trial court abuse its discretion in finding that the
custody factors weighed in favor of placing the child in
Father’s primary custody and was supported by clear and
convincing evidence?
Mother’s brief at 8.
We review a trial court’s custody order for an abuse of discretion.
D.K.D. v. A.L.C., 141 A.3d 566, 571 (Pa.Super. 2016). As such, we defer to
the trial court’s factual findings that are supported by the record and its
credibility determinations. Id. Nevertheless, we are not bound by the trial
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court’s deductions or inferences, nor are we constrained to adopt a finding
that cannot be sustained with competent evidence. Id. Thus, this court will
accept the trial court’s conclusions unless it is tantamount to legal error or
unreasonable in light of the factual findings. Id. at 571-572.
In a custody case, the primary concern is the best interests of the
child. Id. at 572. Moreover, “the best-interests standard, decided on a
case-by-case basis, considers all factors which legitimately have an effect
upon the child’s physical, intellectual, moral, and spiritual well-being.” Id.
(citation omitted).
Mother first asserts that the trial court erred in failing to consider the
relocation factors set forth in § 5337(h)1 of the Child Custody Act in addition
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1
Section 5337(h) of the Child Custody Act requires the trial court to
consider the following factors when a party is relocating:
(1) The nature, quality, extend 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 state, 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.
(Footnote Continued Next Page)
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to the best-interest factors outlined in § 5328(a), which we address infra.
Mother maintains that the court must address the ten factors enumerated in
§ 5337 in any case involving relocation and custody. She concludes that,
had the court weighed those factors, the outcome would militate in favor of
granting her primary physical custody of K.V.
We discern no trial court error. In awarding Father primary physical
custody of K.V. during the school year, the court considered all sixteen of
_______________________
(Footnote Continued)
(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 relocation, including, but not
limited to, financial and 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).
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the best-interest factors pursuant to § 5328(a) of the Child Custody Act.
Under subsection (a)(16), mandating an examination of any other relevant
factor, the court explained, “In light of our decision herein to award the
Father primary physical custody during the school year, we do not believe it
necessary to specifically address the relocation factors. Further, we believe
that the elements set forth in such relocation factors have been generally
addressed above.” Opinion, 7/18/16, at 21.
This Court considered the applicability of the ten relocation factors in
D.K. v. S.P.K., 102 A.3d 467 (Pa.Super. 2014). In D.K., following a
separation, the mother moved in with her parents in North Carolina. At that
time, the father and children resided in Pittsburgh, Pennsylvania. The
parties entered into a custody agreement permitting the father to maintain
primary physical custody of the children in Pennsylvania, and providing the
mother with periods of supervised custody in North Carolina. Approximately
one year after entering into this agreement, the mother filed a complaint for
custody seeking primary physical custody. The court subsequently awarded
primary physical custody to the mother, and the father appealed.
On appeal, father argued, inter alia, that the mother failed to comply
with the relocation procedures delineated in § 5337. He contended that
since the children would be relocated to North Carolina, the mother was
required to provide him timely notice of her intention to relocate the
children. As it concerns this matter, we held that § 5337 anticipates that a
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custodial parent would be relocating and that “where neither parent is
relocating, and only the custodial rights of the parties are at issue, section
5337 of the Child Custody Act is not per se triggered.” Id. at 474. Hence,
we concluded that, where neither party is relocating, the relocation
provisions under § 5337 do not apply. Id. at 472. Nevertheless, we held
that, in a case where a child stands to move a significant distance, the trial
court should still consider the relevant factors of § 5337(h) in its § 5328(a)
best interest analysis. Id. at 476.
Herein, Mother resided in Clearfield and Father lived in Altoona when
Mother filed her complaint for custody. Thus, as in D.K., supra, the trial
court was not per se required to consider the relocation factors listed in §
5337(h). However, since K.V. would reside in Clearfield if Mother obtained
primary physical custody, the court was bound to consider the relevant §
5337(h) factors in its best interest analysis.
We find the trial court did not err in failing to address the relocation
factors specifically, but rather, confirmed that it considered the factors
relevant to K.V.’s potential relocation as required by D.K., supra. We note
that there is significant overlap between the best-interest factors and the
relocation factors. Instantly, the court found that both parties had
performed, and were capable of performing, all parental duties. In addition,
remaining in Father’s care would permit K.V. to attend Bishop Guilfoyle High
School where many of her friends from elementary school would also be
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attending. On the other hand, if K.V. were required to reside in Clearfield,
she would be enrolled in an unfamiliar school in an unfamiliar area. The
court also noted that K.V. had close family relationships in Blair County and
that she maintained a good relationship with Father’s girlfriend. It reasoned
that those individuals would be available to provide K.V.’s after school
supervision. It found that similar relationships did not exist in Clearfield.
Finally, the court relied upon fourteen year-old K.V.’s well-reasoned
preference to remain in Father’s custody during the school year.
When viewed in light of the relevant relocation factors, the trial court
provided ample reasoning for why it deemed that K.V.’s best interests were
met through the stable environment and educational opportunities provided
by remaining in Father’s care rather than moving to Clearfield to live with
Mother. Hence, no relief is due.
Next, Mother contends that the trial court improperly weighed several
of the best-interest factors in favor of Father. The Child Custody Act
enumerates the following factors the court must consider in determining the
best interest of a child when awarding any form of custody:
(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.
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(2.1) The information set forth in section 5329.1(a)(1) and (2)
(relating to consideration of child abuse and involvement
with protective services).
(3) The parental duties performed by each party on behalf of
the child.
(4) The need for stability and continuity in the child’s
education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on the
child’s maturity and judgment.
(8) The attempts of a parent to turn the child against the other
parent, except in cases of domestic violence where
reasonable safety measures are necessary to protect the
child from harm.
(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child
adequate for the child’s emotional needs.
(10) Which party is more likely to attend to the daily physical,
emotional, developmental, educational and special needs
of the child.
(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 efforts to protect a child from abuse by
another party is not evidence of unwillingness or inability
to cooperate with that party.
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(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).
Mother’s argument in this regard is multi-faceted. First, Mother
argues that the court did not properly consider Father’s decision to prevent
K.V. from relocating to Clearfield when Mother first attempted to move with
the child. She asserts that the court trivialized Father’s unwillingness to put
her and K.V.’s needs before his own. Mother also claims that the court did
not properly consider her status as the primary caretaker. She maintains
that the court failed to find that she was less fit than Father in tending to
K.V.
In addition, Mother alleges that the court gave too much weight to
K.V.’s expressed preference to stay with Father. She avers that, although
K.V. prefers Father’s style of discipline, K.V. has engaged in self-harm while
under his supervision. Lastly, Mother notes that Father’s work schedule
requires him to secure the aid of third parties to supervise K.V., whereas she
would be able to nurture the child full-time. Mother concludes that the trial
court erred in failing to determine that she provided a more stable
environment for K.V., and thus, that it was in K.V.’s best interests to reside
with her. We address Mother’s claimed errors jointly.
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Herein, the trial court found that Mother and Father had demonstrated
continuing contact with the other party since the inception of the custody
agreement. The court noted one incident, prior to the custody agreement,
where Father was prompted to remove K.V. from the marital home when
Mother informed him that she was moving to Clearfield with the child. The
court credited Father’s explanation that he feared that Mother was taking the
child permanently, and that he kept the child only until he had consulted
with an attorney a few days later. The record reveals no abuse of discretion
in this regard. Mother discovered K.V.’s location after Father removed her
from the marital home and the parties entered into a custody arrangement
shortly thereafter.
In assessing § 5328(a)(3), the trial court found that both parties were
capable of performing parental duties. The court recognized Mother’s
comprehensive contribution to the child’s development. Nevertheless, the
court observed that Father had also provided care, completed chores outside
the house, and volunteered for school activities when he was available. As a
result, it found that both parents had carried out their parental duties and
were capable of continuing to do so. Although Mother is insistent that her
role as the primary caregiver should outweigh the factors relied upon by the
trial court, we discern no abuse of discretion in the court weighing this factor
equally between the parties.
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With regards to K.V.’s preferences, the court found K.V. to be an
“intelligent, thoughtful, mature, and articulate young lady.” Opinion,
7/18/16, at 12. Essentially, Mother argues that K.V. wants to be with
Father because he is less of a disciplinarian. The court acknowledged that
Mother and Father employ differing discipline styles and noted that K.V.
responded more positively to Father’s methodology. However, the court
reviewed K.V.’s testimony as a whole, and found numerous reasons as to
K.V.’s expressed inclination toward remaining with Father. The court stated
that K.V. and Father enjoy many of the same activities, that Father keeps
his promises, and that K.V. enjoys a close, trusting relationship with Father’s
girlfriend. The court emphasized that K.V. desired to remain within the
Altoona school system where she has friends and enjoys various
extracurricular activities. Finally, it remarked that K.V. conveyed that she
wishes to stay Catholic, the faith she shares with Father alone. In this vein,
she aspires to attend the local Catholic high school. In light of K.V.’s
numerous and well-articulated reasons for remaining in Father’s care, we
find the court did not err in weighing this factor in favor of Father.
Finally, the trial court considered each party’s availability to care for
the child under § 5328(a)(12). The court determined that due to K.V.’s age,
this factor had little weight. Nevertheless, it noted that Father had several
family members in the area who were available to care for K.V. in an
emergency. On the other hand, although Mother would be available full-
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time, she would be reliant on non-family members in case of an emergency.
The evidence of record supports the court’s determinations in this regard,
and therefore, it did not abuse its discretion in finding this factor favors
Father.
In summary, we conclude that the trial court did not abuse its
discretion in considering the statutory factors and awarding Father primary
physical custody of K.V. during the school year and granting Mother partial
custody as dictated by the terms of the court’s order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/30/2017
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