J.G. v. J.G.

J-A06027-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.G., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant

v.

J.G.,

Appellee No. 2743 EDA 2016

Appeal from the Order July 27, 2016
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2012-18650

BEFORE: PANELLA, SHOGAN, and RANSOM, JJ.

MEMORANDUM BY SHOGAN, J.: FILED MAY 22, 2017

This is an appeal in a custody case by J.G. (“Mother”). She and J.G.

(“Father”) had four children.1 Mother appealed the order denying her

request to relocate with the parties’ youngest child, nine-year-old A.G., to

Boca Raton, Florida. The July 27, 2016 order also denied 1) Mother’s

petition to modify the existing custody order, and 2) her separate petition

for special relief requesting that A.G. be immediately withdrawn from his

present Hebrew school and enrolled in a different one mutually agreed upon

____________________________________________

1
Of the parties’ three oldest children, two daughters were ages thirty-one
and twenty-four years old in 2015; the second-oldest child, who would have
been twenty-nine years old, was tragically killed by a drunk driver when she
was nineteen years old in 2005. N.T., 2/17/16, at 24; Custody Evaluation
by Anthony M. Pisa, Ph.D., 12/29/15, Mother’s Exhibit 1 (“Pisa Report”), at
3, 13–14.
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by the parties. Finally, the order denied Father’s petition to modify the

existing custody order in which he requested equally shared physical

custody; however, the trial court granted Father’s alternative request to

increase his partial physical-custody time. Upon careful review, we affirm.

The record reveals that Mother and Father separated in 2012 after

thirty-three years of marriage. N.T., 2/18/16, at 5. Mother testified that

after the parties’ daughter died in July of 2005, the parties planned to have

“another child to make us feel whole again.” Id. at 7, 11. A.G. was born

seventeen months later in October of 2007. Id. at 5, 10. The parties

separated in April of 2012, and a divorce decree was issued in December of

2014. Id. at 5–6.

The parties stipulated to the existing custody order dated January 13,

2014. It granted them shared legal custody, Mother primary physical

custody, and Father partial physical custody every Wednesday overnight

during the school year. In addition, the order granted Father physical

custody on alternating weekends from “Friday after school through Sunday

at 8:00 p.m. and on the next alternating weekend . . . from Friday after

school through Monday morning return to school, or if there is no school, to

Mother’s home by 9:00 a.m.” Order, 1/13/2014, at ¶ 2(b).

Father resides in the former marital home in Wynnewood,

Pennsylvania, with his girlfriend, Stefanie Cutler. Pisa Report at 3. Mother

resides in an apartment in Bala Cynwyd, Pennsylvania. Id. A.G. attends

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school in the Lower Merion School District, and he has an Individualized

Education Plan (“IEP”) due primarily to reading difficulties. N.T., 6/14/16, at

242–243. In addition, A.G. is diagnosed with Attention Deficit Disorder

(“ADD”) or Attention Deficit Hyperactivity Disorder (“ADHD”). Pisa Report at

9. Father testified that A.G. was recently prescribed Ritalin, which has made

him more calm and focused. N.T., 6/14/16, at 240–241.

On April 23, 2015, Mother filed a notice of proposed relocation with

A.G. to Boca Raton, Florida. Father responded on April 27, 2015, with a

counter-affidavit objecting to the relocation and to modification of the

existing custody order. On July 6, 2015, Mother filed a petition to modify

the existing custody order, wherein she requested modification of Father’s

partial physical custody schedule and permission to relocate with A.G. to

Florida. On July 16, 2015, Father filed a petition to modify the existing

custody order, wherein he requested joint physical custody.2 Finally, on

August 25, 2015, Mother filed a petition for special relief, asking that A.G. be

withdrawn from Hebrew school at Temple Beth Hillel and enrolled in a new

____________________________________________

2
“Joint physical custody” is not a term included in the Child Custody Act
(“Act”), 23 Pa.C.S. §§ 5321–5340, which governs this custody matter.
Rather, the Act includes the term “shared physical custody,” which is defined
as “the right of more than one individual to assume physical custody of the
child, each having significant periods of physical custodial time with the
child.” 23 Pa.C.S. § 5322. During these proceedings, Father requested
equally shared physical custody.

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Hebrew school mutually agreed upon by the parties. Petition for Special

Relief, 8/25/15, at 1–2.

The trial court held a protracted custody hearing over five days, on

February 17–19, and June 14–15, 2016. Mother testified on her own behalf,

and she presented the testimony of Anthony M. Pisa, Ph.D., a clinical

psychologist appointed to perform a custody evaluation upon agreement of

the parties; Robert Tanenbaum, a licensed psychologist; Maria Vetter, an

expert in special education consultations; and Laurie Dubow, Mother’s friend

who owns a real estate company in Florida, who testified via telephone.

Father testified on his own behalf, and he presented the testimony of J.S.G.,

the paternal grandmother; Sharon Grevet, Mother’s sister, via telephone;

and J.E.G. and F.L.G., the parties’ adult daughters, via telephone. On

rebuttal, Mother testified again on her behalf and presented the testimony of

her friend, Farell Borine.

By order dated July 26, 2016, and filed on July 27, 2016, the trial

court denied Mother’s request to relocate with A.G. and her petition to

modify the existing custody order. Further, the court denied Mother’s

petition for special relief, wherein she requested A.G.’s withdrawal from his

current Hebrew school and enrollment in a different one. The court denied

Father’s request for equally shared physical custody but granted him

additional physical custody overnight on the Thursday evenings preceding

Mother’s custodial weekends. The court directed that the “January 13, 2014

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stipulated custody order shall remain in full force and effect to the extent

that it does not conflict with this Order.” Order, 7/26/16, at 4.

Mother timely filed a notice of appeal and a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

The trial court filed its Rule 1925(a) opinion on October 18, 2016, wherein it

addressed each error asserted by Mother in her concise statement. On

appeal, Mother presents the following issues for our review:

1. Whether the [c]ourt erred by failure to individually address
the sixteen (16) custody factors and ten (10) relocation factors
when issuing its Order?

2. Whether the [t]rial [c]ourt erred in concluding that Appellee-
Father should be awarded additional physical custody?

3. Whether the [t]rial [c]ourt erred in fashioning a custody order
based upon an improper conclusion that Appellee-Father spent
“meaningful time together with the child on Wednesday?[”]

4. Whether the [t]rial [c]ourt erred in failing to give the
appropriate weight to the fact that Appellee-Father repeatedly
stated that if he were permitted substantially similar time with
the child he would consent to the relocation to Florida?

5. Whether the [t]rial [c]ourt erred in failing to place appropriate
weight on the fact that Appellee-Father testified that he
considered [Appellant-]Mother’s proposal to stop support
payments if she were able to relocate with the child, and that
the main reason he declined was because he was concerned
about what his other children might think of him?

6. Whether the [t]rial [c]ourt erred in fashioning a custody order
based upon an improper conclusion that the child has a close
relationship with his two adult sisters, as this conclusion is in
direct contradiction to the wealth of evidence and testimony
presented to the contrary?

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7. Whether the [t]rial [c]ourt erred by in [sic] fashioning a
custody order based upon an improper conclusion that the child
had developed a close relationship with Paternal Grandparents,
Aunts, Uncles, and cousins?

8. Whether the [t]rial [c]ourt erred in fashioning a custody order
based upon an improper conclusion that the child would not have
similar family relationships or a similar support system in
Florida?

9. Whether the [t]rial [c]ourt erred in fashioning a custody order
based upon an improper finding that “there was no persuasive
evidence presented at the hearing that the quality of the child’s
education would improve, or remain consistent for that matter, if
the child relocates to Florida,” which is contrary to all the
evidence and testimony presented, specifically the education
expert presented by Appellant-Mother?

10. Whether the [t]rial [c]ourt erred in fashioning a custody
order based upon an improper conclusion that there was “no
persuasive evidence that the relocation would enhance the
general quality of life for the child financially or emotionally?”

11. Whether the [t]rial [c]ourt erred in fashioning a custody
order based upon improperly speculating that Appellant-Mother
may not be willing to promote the child’s relationship with
Appellee-Father if the child were permitted to relocate?

12. Whether the [t]rial [c]ourt erred in applying and adopting
Dr. Anthony Pisa’s conclusion that if the child were to relocate to
Florida, “in his opinion the child’s loss from being separated from
Father and Father’s extended family would outweigh any benefit
gained by Mother in relocating?”

13. Whether the [t]rial [c]ourt erred in failing to consider the
uncontroverted and well-reasoned preference of the child, which
was to be able to relocate with Appellant-Mother?

14. Whether the [t]rial [c]ourt erred in failing to adjudicate the
underlying issues outlined in the Petition for Special Relief?

Mother’s Brief at 3–4.

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In custody cases under the Child Custody Act, (“the Act”), 23 Pa.C.S.

§§ 5321–5340, our 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.

C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (internal citation

omitted). This Court “will accept the trial court’s conclusion unless it is

tantamount to legal error or unreasonable in light of the factual findings.”

M.G. v. L.D., ___ A.3d ___, ___, 2017 PA Super 29, *5 (Pa. Super. 2017)

(citing S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014)).

Further, we have stated the following:

[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)).

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,

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considers all factors that legitimately have an effect upon the child’s

physical, intellectual, moral, and spiritual well-being.” Saintz v. Rinker,

902 A.2d 509, 512 (Pa. Super. 2006), (citing Arnold v. Arnold, 847 A.2d

674, 677 (Pa. Super. 2004)).

Section 5328(a) of the Act sets forth the best interest factors that the

trial court must consider when awarding custody. E.D. v. M.P., 33 A.3d 73,

80–81, n.2 (Pa. Super. 2011). Those factors are as follows:

§ 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)(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.

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(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).

Section 5337(h) of the Act sets forth the following ten relocation

factors that a trial court must consider when ruling on a relocation petition:

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(h) Relocation factors.—In determining whether to grant a
proposed relocation, the court shall consider the following
factors, giving weighted consideration to those factors which
affect the safety of the child:

(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.

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(10) Any other factor affecting the best interest of the
child.

23 Pa.C.S. § 5337(h). “As the custodial parent seeking to relocate . . . ,

Mother had the burden of establishing that relocation is in her son’s best

interest.” See 23 Pa.C.S. § 5337(i) (“Burden of proof.—(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).”). D.K.D. v. A.L.C., 141 A.3d 566, 573 (Pa. Super.

2016), appeal denied, ___ A.3d ___, 2016 WL 6462545 (Pa. filed November

1, 2016). In addition, “[e]ach party has the burden of establishing the

integrity of that party’s motives in either seeking the relocation or seeking to

prevent the relocation.” 23 Pa.C.S. § 5337(i)(2).

Turning to the first issue on appeal, Mother asserts that the trial court

erred by failing to address individually the Section 5328(a) custody factors

and the Section 5337(h) relocation factors when issuing the subject order.

This issue is waived. Mother fails to support her two-sentence contention,

completely lacking in specificity, with any authority. Pa.R.A.P. 2119(b);

Banfield v. Cortes, 110 A.3d 155, 168 n.11 (Pa. 2015) (“Where an

appellate brief fails to provide any discussion of a claim with citation to

relevant authority or fails to develop the issue, . . . that claim is waived. It

is not the obligation of an appellate court to formulate an appellant’s

arguments for him. Wirth v. Commonwealth, 95 A.3d 822, 837 (Pa.

2014).” See also In re W.H., 25 A.3d 330, 339 n.3 (Pa. Super. 2011)

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(stating that issues are waived if appellate brief fails to provide meaningful

discussion with citation to relevant authority).

Even if not waived, we would conclude the claim is without merit. In

its order, the trial court stated that it “considered the custody factors as set

forth in 23 Pa.C.S. § 5328(a)(1) through (a)(16), as well as the relocation

factors as set forth in 23 Pa.C.S. § 5337(h)(1) through (h)(10) and weighed

these factors with the evidence presented. . . .” Order, 7/26/16, at 1.

Thereafter, the court delineated the reasons for its custody and relocation

decisions. Id. at 2-4. As such, we discern no legal error by the trial court.

Similarly, with respect to the fifth issue, we conclude that Mother’s

one-sentence claim is waived for her failure to provide meaningful discussion

with citation to relevant legal authority. Banfield, 110 A.3d at 168 n.11; In

re W.H., 25 A.3d at 339 n.3. Even if not waived, we would discern no

abuse of discretion. The trial court addressed the issue at length, in contrast

to Mother’s brevity. Further, we would adopt as dispositive of Mother’s fifth

issue the trial court’s Rule 1925(a) opinion. Trial Court Opinion, 10/18/16,

at 15–16.

In delineating the reasons for its custody and relocation decisions, the

trial court set forth its factual findings and made determinations regarding

credibility and weight of the evidence. Order, 7/26/16, at 2–4. In addition,

in its Rule 1925(a) opinion, the trial court set forth its factual findings, which

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are supported by the testimonial evidence. Trial Court Opinion, 10/18/16, at

1–4.

Importantly, the trial court found credible the testimony and opinion of

the custody evaluator, Dr. Pisa, who was appointed by agreement of the

parties. The court admitted into evidence Dr. Pisa’s thorough and

comprehensive custody evaluation report. Pisa Report, 12/29/15, at 1–75.

Dr. Pisa opined, “[T]he child’s ‘loss’ from being separated from Father and

Father’s extended family would outweigh any benefit gained by Mother in

relocating.” Order, 7/26/16, at 3. The trial court explained as follows:

Dr. Pisa testified that . . . Mother’s negative behavior
towards . . . Father thwarts the child’s relationship with . . .
Father, and that it could have a very negative psychological
impact on the child. If . . . Mother were permitted to relocate to
Florida, Dr. Pisa supported the contention that . . . Mother will
have even more of an opportunity to thwart . . . Father’s
relationship with the child.

Dr. Pisa’s December 29, 2015 final report . . . states that
[he] does not recommend that the child relocate to Florida. Dr.
Pisa states that “. . . the benefits derived by Mother as a result
of the move would have to be weighed against the losses
incurred by the child by being displaced from Father and Father’s
extended family . . . the child would continue to derive benefit
from being exposed to Father particularly as he grows older . . .
if the child were to stay in Philadelphia, he would have the
benefit of two caring parents. . . .

Trial Court Opinion, 10/18/16, at 3–4 (citations to record omitted); see also

N.T., 2/17/16, at 122 (“[I]t’s my opinion within a reasonable degree of

psychological certainty that [A.G.’s] loss about being separated from

[F]ather in a way that would divorce [Father] from participation in [A.G.’s]

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normal developmental experience and [F]ather’s extended family are losses

that . . . outweigh the benefit to [M]other if she were to move . . . .”).

In this appeal, but for her second and fourteenth issues, Mother

asserts that the trial court erred in denying her proposed relocation, claiming

that the testimonial evidence does not support the trial court’s factual

findings, or the trial court improperly weighed the testimonial evidence. We

have thoroughly reviewed the testimony, and we disagree.

Indeed, with respect to all of the foregoing issues wherein Mother

asserts that the trial court erred in denying her proposed relocation with

A.G. to Boca Raton, Florida, we conclude the testimonial evidence

overwhelmingly supports the court’s factual findings, and its conclusions are

reasonable in light of those findings. Thus, we discern no abuse of

discretion. Further, because this Court must defer to the determinations of

the trial judge with respect to the weight of the evidence, Mother’s issues in

that regard also fail. C.R.F., 45 A.3d at 441. Accordingly, we adopt as

dispositive of Mother’s third, fourth, sixth, seventh, eighth, ninth, tenth,

eleventh, twelfth, and thirteen issues on appeal, the trial court’s Rule

1925(a) opinion. Trial Court Opinion, 10/18/16, at 11–29.3

In Mother’s second issue, she argues that the trial court erred in

granting Father additional physical custody overnight on the Thursdays
____________________________________________

3
The parties are directed to attach a copy of the opinion in the event of
further proceedings in this matter.

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preceding Mother’s custodial weekends. Specifically, Mother contends that

the court “failed to give proper weight to the fact that Father consistently

failed to exercise custodial time provided to him by the” existing custody

order and failed to exercise extra custodial time Mother offered him.

Mother’s brief at 11. In addition, Mother avers, “Father had a history of

passing off his parental duties to [her]. . . .” Id. at 12. We disagree.

The trial court acknowledged that “Father does not always take

advantage of the time when the child is available to him.” Order, 7/26/16,

at 4. Further, in its Rule 1925(a) opinion, the trial court referenced Dr.

Pisa’s statement in his report that he “would not recommend consideration

of an equally shared [physical custody] arrangement until Father

demonstrates over time that he takes advantage of all the time the child is

available to him.” Trial Court Opinion, 10/18/16, at 12 (citation to record

omitted) (emphasis added). In addition, the trial court found that equally

shared physical custody “may be too great a change in the child’s routine

and schedule at this time. . . .” Id. at 12-13. Thus, the trial court denied

Father’s request for equally shared physical custody.

Nevertheless, the trial court concluded that it would be in A.G.’s best

interest to modify Father’s partial physical custody schedule by granting

Father “two additional overnights . . . per month.” Trial Court Opinion,

10/18/16, at 12. The court explained that it granted Father’s alternative

request for overnights on the Thursday evenings preceding Mother’s

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custodial weekends “based on the evidence presented that [Appellee] Father

and the child share a close relationship and that [Appellee] Father is able to

care for the child.” Id. at 13. Upon thorough review of the testimonial

evidence, we discern no abuse of discretion by the trial court in modifying

the existing custody order by granting Father extra overnights on the

Thursdays that precede Mother’s custodial weekends. Therefore, Mother’s

second issue fails.

In her fourteenth and final issue, Mother asserts that the trial court

erred in failing to adjudicate the underlying issues in her petition for special

relief. Specifically, Mother claims the trial court failed to enter an order with

respect to “which Synagogue the child should attend services and Hebrew

School.” Mother’s brief at 22. Mother’s issue is meritless.

Contrary to Mother’s assertion, the trial court stated in its Rule

1925(a) opinion that it adjudicated the underlying issues by denying her

petition for special relief. Trial Court Opinion, 10/18/16, at 17. Indeed, in

her petition, Mother requested that A.G. be immediately withdrawn from

Hebrew school at Temple Beth Hillel and enrolled in a new Hebrew school

mutually agreed upon by the parties. By denying Mother’s petition, the

court declined to order that A.G. be withdrawn from his current Hebrew

school. Upon careful review of the totality of the testimonial evidence in this

case, we discern no abuse of discretion by the court in denying Mother’s

petition. Therefore, we reject Mother’s final issue.

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Upon review, we conclude that the trial court carefully and thoroughly

considered A.G.’s best interests in its custody determinations. Because the

competent evidence of record supports the trial court’s findings, and the trial

court’s conclusions are reasonable in light of those findings, we affirm the

order denying Mother’s request to relocate with A.G. to Boca Raton, Florida,

her petition to modify the existing custody order, and her petition for special

relief. In addition, we affirm the custody order modifying Father’s partial

physical custody schedule granting him additional overnights on the

Thursdays preceding Mother’s custodial weekends.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/22/2017

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 Circulated 05/01/2017 11:30 AM

IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY
CIVIL ACTION - LAW

J._ ~·III NO. 12-18650

vs SUPERIORCOURT DOCKETNO.
2743 EDA 2016

Jiii G---"°
OPINION
COONAHAN, J. OCTOBER 18, 2016

Plaintiff/Appellant••••• (hereinafter "Plaintiff Mother") and

Defendant/Appellee •••••• ("hereinafter "Defendant Father") are the

parents of one unemancipated child, A.G. (date of birth October&

2007)(hereinafter "the child"). On February 17, 18 and 19, 2016, and June 14 and

15, 2016, the court held hearings on Defendant Father's April 27, 2015 Counter-

Affidavit Regarding Relocation, Plaintiff Mother's July 6, 2015 Petition to Modify an

Existing Custody Order, and Plaintiff Mother's August 25, 2015 Petition for Special

Relief. Plaintiff Mother was represented by Maria Testa, Esquire and Richard Bost,

Esquire, and Defendant Father was represented by Cheryl Young, Esquire,

Pursuant to a January 13, 2014 agreed custody order, the parents share legal

custody of the child, Plaintiff Mother has primary physical' custody of the child, and

Defendant Father has partial physical custody of the child every other weekend and

every Wednesday overnight during the school year. The child has lived in the

Philadelphia area since his birth. --·----·- ... - . -- - -·- - ------ - .

1111 ri:11'~~1:l~DIII
2012-18650-0078 \0118120163:36 PM # 11004393
Opinion
1 Rcpt#Z2908132 F~:so.oo
II.far\; U\: -MontCo Prothonotary
 Defendant Father testified at the hearings that he has a close relationship with

the child. Defendant Father testified to the daily routine which he and the child

follow in regard to meals, homework, and bedtime. N.T. June 14, 2016 at 281-283,

287, 289-290. Defendant Father takes the child to Hebrew School and shares other

activities with the child such as basketball, soccer, museums, water parks, and play .

gyms. N.T. June 14, 2016 at 294-295. Defendant Father stated that the child also

has playdates with other children during Defendant Father's custodial weekends.

N.T. June 14, 2016 at 298.

There was testimony presented that the child spends time with his paternal

grandparents, his paternal aunt and uncle, and his cousins, at Hebrew school, and

on the weekends when he is with Defendant Father, and that he has a close

relattonshlp with his extended family. N.T. June 14, 2016 at 283-284, 296, N.T.

June 15, 2016 at 43-44. The child also has a close relationship with Defendant

Father's flancee, Stefanie Cutler. N.T. June 15, 2016 at 80.

Plaintiff Mother testified that she wished to relocate to Florida because she states

she has a support system in Florida, she wanted to live closer to her mother, who

resided in Florida, and that the weather in Florida would be better for an injury she

sustained to her hand. Plaintiff Mother also testified that she would be working as a

part time relator's assistant in Florida. However, since Plaintiff Mother filed her

Notice of Relocation on April 23, 2015, her mother has passed away. Furthermore,

her mother's residence was six hours away from where Plaintiff Mother planned to

relocate in Florida. N.T. June 14, 2016 at 51, 52. There was also testimony that

since her mother moved to Florida in 2012, Plaintiff Mother only visited her four

times until her death in January, 2016. N.T. June 14, 2016 at 159.

2
 Plaintiff Mother stated that her support system in Florida was comprised of her

cousin, Randy Levlne, a friend named Laurie Dubow, and the directors of a summer

camp which her older children attended. However, there was testimony presented

that Plaintiff Mother's relationship with her cousin and Ms. Dubow is not close, and

Plaintiff Mother's contact with the operators of the summer camp, "Isaac and Rose"

was limited to once a year prior to the custody litigation. N.T. February 19, 2016 at

71; N.T. June 14, 2016 at 63, 87, 88, 186, 218, 235.

Plaintiff Mother testified that she intended to work as a real estate agent's

assistant in Florida with the intention of becoming a part-time real estate agent.

However, Plaintiff Mother does not have either a Pennsylvania or Florida real estate

license. N.T. June 14, -2016 at 115. Plaintiff Mother offered no persuasive evidence

that she sought a similar position in Pennsylvania, or that she attempted to find any

job in Pennsylvania for that matter. N.T. June 14, 2016 64-66, 115, 124.

Plaintiff Mother did not present any persuasive evidence to the. court that her

hand injury prohibits her from remaining in Pennsylvania or that Florida would

somehow alleviate her injury. There was testimony presented that despite her

injury, Plaintiff Mother has still been able to enjoy her hobbies such as painting, and

playing the flute on a consistent basis. Plaintiff mother testified that she wants to

move to Florida in order to have a "fresh start" and also to get away from

Defendant Father and his family. N.T. June 14, 2016 at 77.

At the February 17, 2016 hearing, Dr. Anthony Pisa testified that he conducted a

custody evaluationln connection with this case which was completed at the end of

December, 2015. Dr. Pisa testified that Plaintiff Mother's negative behavior towards

Defendant Father thwarts the chlld's relationship with Defendant Father, and that it

3
could have a very negative psychological impact on the child. N.T. February 17,

2016 at 150-152. If Plaintiff Mother were permitted to relocate to Florida, Dr. Pisa

supported the contention that Plaintiff Mother will have even more of an opportunity

to thwart Defendant Father's relationship with the child. N.T. February 17, 2016 at

177.

Dr. Pisa's December 29, 2015 final report, marked and entered as trial exhibit M-

1, states that Dr. Pisa does not recommend that the child relocate to Florida. Dr.

Pisa states that " ... [t]he benefits derived by Mother as a result of the move would

have to be weighed against the losses incurred by [the child] by being displaced

from Father and Father's extended family ... [the child] would continue to derive

benefit from being exposed to Father particularly as he grows older .. .if [the child]

were to stay in Philadelphia, he would have the benefit of two caring parents ... "

December 29, 2015 final report at 74; N.T. February 17, 2016 at 112.
1
On July 26, 2016, the court issued an order as follows:

"AND NOW, this 26th day of July, 2016, upon consideration
of Defendant's April 27, 2015 Counter-Affidavit Regarding
Relocation, Plaintiff's July 6, 2015 Petition to Modify an Existing
Custody Order, Defendant's July 16, 2015 Petition to Modify
Custody, and Plaintiff's August 25, 2015 Petition for Special
Relief, following hearings on February 17, 18 and 19, 2016 and
June 14 and 15, 2016, and upon consideration of Defendant's
July 15, 2016 Proposed Findings of Fact and Conclusions of
Law, and Plaintiff's July 15, 2016 Proposed Findings of Fact and
Conclusions of Law, the Court makes the following findings:

The parties are the parents of one minor child, [A.G.]
(DOBlOl4l'I07). On January 13, 2014, Plaintiff/Mother
(hereinafter "Mother") and Defendant/Father ("Father") entered
into a stipulated custody order which provided for, .l..!iliU alia,
Mother and Father to share legal custody of the child, Mother to
have primary physical custody of the child, and Father to have
partial physical custody of the child every Wednesday
overnight, as well as every other weekend.

I The July 26, 2016 order was docketed with the Montgomery County ProthOnotary on July 27, 2016.

4
The Court has considered the custody factors at set forth in 23
Pa.C.S.A. § 5328(a)(l) through (a)(16), as well as the
relocation factors as set forth in 23 Pa.C.S.A. § 5337(h)(l)
through (h)(lO) and weighed these factors with the evidence
presented at the hearings as follows:

Relocation:
The Court has considered the best Interests of the child by
considering the child's current schedule and the importance of
both parents maintaining an active role in the growth and
development of the child. Based on the evidence presented at
the hearings, the Court finds that a relocation to Florida would
not be in the child's best interests.

The child has lived in Pennsylvania since his birth. The child has
developed relationships with extended family in the Philadelphia
area, which includes his paternal grandparents, aunts, uncles
and cousins. He also has a close relationship with his two adult
sisters. The child does not have similar family relationships or a
similar support system in Florida.

Under the current custody schedule, Father has partial physical
custody of the child every Wednesday overnight. There was
testimony that Father spends meaningful time together with the
child on Wednesday school days. Father helps the child get
ready for school in the morning, takes him to school, and in the
evening Father helps him with his homework and to get ready
for bed. On Wednesday afternoons Father picks the child up
from school and takes him to Hebrew School. The Court found
that a relocation of the child to Florida would be detrimental to
Father's ability to exercise his periods of partial physical
custody since the child would be attending school in Florida,
thereby making Father's overnight custody on Wednesdays
impossible. Mother has proposed that in exchange for Father
losing his weekday custodial time, Father would have longer
periods of time with the child in the summer, and she believes
a schedule could be created which would give Father a
"substantially" similar amount of time with the child as he now
has. The Court does not find that.this is a viable alternative to
the custodial time which the child currently has with Father, nor
would Father be able to spend a "substantially" similar amount
of time with the child if the child relocates to Florida.

Under the current custody order, Father is able to attend the
child's medical appointments, school conferences,
extracurricular activities, and religious events if he so chooses.
If the child relocated to Florida, Father's ability to participate in
these aspects of the child's upbringing would be severely
compromised.

There was no persuasive evidence presented at the hearings
that the quality of the child's education would improve, or
remain consistent for that matter, if the child relocates to

5
Florida. The child has special educational needs which are being
met in Pennsylvania. The child currently attends Lower Merion
School District. Furthermore, Father testified that he has to a
limited extent researched private schools in this area which
could also meet the child's educational needs.

There was also no persuasive evidence that the relocation
would enhance the general quality of life for the child financially
or emotionally.

Based on the testimony presented at the hearings, the Court
also has concerns as to Mother's willingness and ability to
promote the child's relationship with Father if Mother and the
child relocate to Florida.

Mother testified that one of the reasons she wishes to relocate
to Florida is because Father and his family have "shunned" her
from the synagogue, Temple Beth Hillel-Beth El. The Court does
not find that Mother presented persuasive evidence to support
this claim. Furthermore, the court does not find that this is a
valid reason for relocation to another state even if Mother's
allegations are in fact true.

Mother's claim that her employment opportunity in Florida
supports a relocation of the child is not persuasive. The job
Mother would have in Florida is a part time position with a
realtor's office, however, Mother does not have a realtor's
license in either Florida or Pennsylvania. Mother did not present
any persuasive evidence that she has attempted to find
employment in Pennsylvania. Mother did not prove to the Court
that her sole, viable employment opportunity is in Florida and
that, therefore, relocation would be in the child's best interests.

The Court has taken into consideration the testimony of Dr.
Anthony Pisa, who was appointed on July 20, 2015 by
agreement of the parties as the custody evaluator in this
matter. Dr. Pisa testified that if the child were to relocate to
Florida, in his opinion the child's "loss" from being separated
from Father and Father's extended family would outweigh any
benefit g~ined by Mother in relocating.

Custody:

The Court finds that the child has been doing well under the
current custody schedule. The Court finds that the child's need
for stability and continuity would best be met by the current
custody order remaining in effect. Father did not prove by a
preponderance of the evidence that a modification to a shared
physical custody schedule would be in the child's best interests.
Father did not prove that- Mother is unable to care for the child
or is unable to provide for his needs in a manner which would
support reducing Mother's periods of physical custody. In fact,

6
there was testimony presented that Mother is a "very strong
parent".

Mother has provided the majority of the parental duties for the
child. There was testimony that Father sometimes abdicates his
parental responsibilities and duties to Mother. Mother presented
evidence to the Court that, on occasion, Father does not always
take advantage of the time when the child is available to him.

Based on the testimony at the hearing, the Court finds that
neither parent has any current issues with drug or alcohol
abuse which would affect his/her abilfty to care for the child.

There was no persuasive testimony as to any present or past
physical abuse by either parent or a member of either parent's
household towards the child.

Based on the testimony at the hearing, the Court finds that
neither parent nor any member of either parent's household
has a mental or physical condition which would affect his/her
ability to care for the child.

The Court has also considered the testimony of Dr. Pisa, who
stated that in his opinion, Mother should retain primary physical
custody of the child.

The Court hereby ORDERS and DECREES as follows:

Mother's request for relocation Is DENIED.

Father's request for shared physical custody of the child is
DENIED. Father's request to have physical custody of the child
Thursday overnight preceding Mother's custodial weekends is
GRANTED. Father shall have custody of the child every
Thursday preceding Mother's custodial weekend from after
school on Thursday until Friday morning drop off at school, or
9:00 a.m. If school is not in session.

The January 13, 2014 stipulated custody order shall remain in
full force and effect to the extent that it does not conflict with
this Order.

Mother's August 25, 2015 Petition for Special Relief is DENIED.

NOTICE TO THE PARTIES - RELOCATION BY EITHER PARENT
Pursuant to 23 Pa. C.S.A. 5323(c), any custody order shall
Include notice of a party's obligations under 23 Pa.C.S.A. §5337
relating to relocation, These obligations are contained in 23
Pa.C.S.A. §5337(b)(General rule),and (c)(Notice)."

7
 On August 23, 2016, Plaintiff Mother filed a Notice of Appeal to the Superior

Court of Pennsylvania of the July 26, 2016 order, a Notice Pursuant to Pa.R.A.P.

904(f) that the matter is a children's fast track appeal, and her Concise Statement

of Matters Complained of on Appeal which states as follows2:

a. "The Court erred by failing to individually address the sixteen (16) custody
factors and ten (10) relocation factors when issuing its Order. The Court failed to
show that the Court weighed all the custody factors when drawing its conclusion in
this case."
b. "The Court erred ln concluding that Respondent should be awarded additional
physical custody."
c. "The Court erred in fashioning a custody order based upon an improper
conclusion that Respondent spent 'meaningful time together with the child on
Wednesday'."
d. "The Court erred in fashioning the custody order by not giving appropriate
weight to the fact that Respondent repeatedly stated that if he were permitted
substantially similar time with the child he would consent to the relocation to
Florida."
e. "The Court erred by not placing appropriate weight to the fact that
Respondent testified that he considered Petitioner's proposal to stop support
payments if she were able to relocate with the child, and that the main reason he
declined was because he was concerned about what his other children might think of
him."
f. "The Court erred by failing to adjudicate the underlying issues outlined in
the petition for Special Relief"
g. "The Court erred in fashioning a custody order based upon an improper
conclusion that the child has a close relationship with his two adult sisters, as this.
conclusion is in direct contradiction to the wealth of evidence and testimony
presented to the contrary."
h. "The Court erred in fashioning a custody order based upon an improper
conclusion that the child had developed a close relationship with Paternal
Grandparents, Aunts, Uncles and cousins."
i. "The Court erred in fashioning a custody order based· upon an Improper
conclusion that the child.would not have similar family relationships or a similar
support system in Florida"
j. "The Court erred in fashioning a custody order based upon an improper
finding that 'there was no persuasive evidence presented at the hearings that the
quality of the child's education would improve, or remain consistent for that matter,
if the child relocates to Florida' was contrary to all the evidence and testimony
presented, specifically the education expert presented by Petitioner."
k. "The Court erred in fashioning a custody order based upon an improper
conclusion that there was 'no persuasive evidence that the relocation would enhance
the general quality of life for the child financially or emotionally'."

2Plaintiff Mother included argument under each issue listed in her concise statement. Pa.R.C.P.
1925(b)(4)(iv) states in part: "The Statement should not be redundant or provide lengthy
explanations as to any error." Therefore, the court's opinion states only Plaintiff Mother's specific
matters complained of on appeal, and has not restated her arguments herein.

8
 I. The Court erred In fashioning a custody order based upon improperly
speculating that Petitioner may not be willing to promote the child's relatlonship with
Respondent if the child were permitted to relocate."
m. "The Court erred in applying and adopting Dr. Pisa's conclusions that if the
child were to relocate to Florida, 'in his opinion the child's loss from being separated
from Father and Father's extended family would outweigh any benefit gained by
Mother In relocating'."
n. "The Court failed to consider the uncontroverted and well-reasoned
preference of the child, which was to be able to relocate with Petitioner."

This opinion is filed pursuant to and is in compliance with Pa. R.A.P. 1925 (a).

The standard of review of a custody order is very narrow; the appellate court

is limited to determining whether the trial court committed a gross abuse of

discretion. See Yates v. Yates, 963 A.2d 535 (Pa. Super. 2008). When reviewing an

appeal from a custody order, the appellate court should not substitute its judgment

for that of the trial court; the appellate court merely decides if the conclusions of

the trial court involve an error of law or are unreasonable in light of its factual

findings. Hanson v. Hanson, 878 A.2d 127, 129 (Pa. Super. 2005). Only where the

appellate court finds that a child custody order is manifestly unreasonable as shown

by the evidence of record wlll it interfere with the trial court's determination. K.B.

II v. C.B.F., 2003 PA Super 364, 833 A.2d 767 (2003).

23 Pa.C.S.A. § 5337(h) lists the factors which the court shall consider in

determining whether to grant a proposed relocation as follows:

"Relocation factors.--In determining whether to grant a
proposed relocation, the court shall consider the following factors,
giving weighted consideration to those factors which affect the
safety of the child:

(1) The nature, quality, extent of involvement and duration of the
child's relationship with the party proposing to relocate and with the
nonrelocattnq 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.

9
 (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
beri.eflt 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.

In all cases where one parent seeks to relocate and the other parent opposes the

move, the burden is on the relocating parent to establish a significant improvement

in the quality of life for that parent and child. Tripathi v. Tripathi, 2001 PA Super

322, 787 A.2d 436. A "sensitive case-by-case balancing" is required to ensure that

all interests are treated as equitably as possible. Boyer v. Schake, 2002 PA Super

148, 799 A.2d 124 (2002). The trial court should seek to sacrifice the noncustodial

parent's interests as little as possible "in the face of the competing and often

compelling irterest" of a custodial parent who seeks a better life in another

geographical location. Johns v. Cioci, 2004 PA Super 492, 865 A.2d 931 (2004).

The trial court addresses Plaintiff Mother's claims as follows;

10
 a. "The Court erred by failing to individually address the sixteen (16) custody
factors and ten (10) relocation factors when issuing its order. The Court failed to
show that the Court weighed all the custody factors when drawing its conclusion in
this case."

23 Pa.C.S.A. §5328 lists the factors which the court must consider when reaching

a decision for an award of custody. 23 Pa.C.S.A. §5323(d) states as follows:

"Reasonsfor Award - The court shall delineate the
reasons for its decision on the record in open court or in
a written opinion or order."

Nothing in 23 Pa.C.S.A. 5321 fil .s..e.g requires the court to "individually address" the

sixteen custody factors, or the ten relocation factors when fashioning an order on

custody or relocation. The court is simply required to consider the factors along

with the evidence as presented, and to delineate its reasons for a custody

determination in open court on the record or in writing. In this case, the court did

so, stating precisely what its reasons were for not only the custody decision, but

the relocation decision, in the July 26, 2016 order. The Child Custody Act does not

require a specific amount of detail for the trial court's explanation of its decision; 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, 2013 PA

Super 40. Therefore, Plaintiff Mother's claim in paragraph a. of her concise

statement is without merit and contrary to the facts of the case, and should be

dismissed.

b. "The Court erred In concluding that Respondentshould be awarded additional
physical custody,"

Pursuant to a January 13, 2014 agreed custody order, the parents share. legal

custody of the child, Plaintiff Mother has primary physical custody of the child, and

Defendant Father has partial physical custody of the child every other weekend and

11
every Wednesday overnight during the school year. As part of the custody litigation

in this matter, Plaintiff Mother filed a petition to modify the existing custody order.

At the hearings, and in his post trial brief to the court, Defendant Father requested

equally shared physical custody of the child. In his final report, Dr. Pisa states: "the

examiner would not recommend consideration of an equally shared arrangement

until Father demonstrates over time that he takes advantage of all the time [the

child] is available to him." December 29, 2015 final report at 74.

After weighing the evidence presented at the hearings with the custody factors

pursuant to 23 Pa.C.S.A. §5328, the court did not find that an award of shared

50/50 custody would be in the child's best interests at this time. However, the court

did find that it would be in the best interests of the child to award Defendant Father

additional custodial time with the child.

As stated in the court's July 26, 2016 order, Defendant Father did not prove by a

preponderance of the evidence that a modification to a shared physical custody

schedule would be in the child's best interests. There was testimony that the child

is doing well under Plaintiff Mother's primary physical custody, and that Plaintiff

Mother is a "very strong parent". However, Defendant father requested at the

hearings that he have physical custody of the child every Thursday preceding

Plaintiff Mother's custodial weekend from after school until Friday drop off at school.

This modification provides Defendant Father with two additional overnights with the

child per month. The court did find that Defendant Father is able to care for the

child and meet his daily needs, that he has a close, loving relationship with the

child, and he is able to provide adequate child care for the child when necessary;

Therefore, although a modification to a shared physical custody schedule may be

12
too great a change in the child's routine and schedule at this time, awarding

Defendant Father two additional overnight periods of custody per month is not an

abuse of the court's discretion based on the evidence presented that Defendant

Father and the child share a close relationship and that Defendant Father is able to

care for the child.

Therefore, Plaintiff Mother's claim in paragraph b. of her concise statement is

without merit and contrary to the facts of the case, and should be dismissed.

c. "The Court erred in fashioning a custody order based upon an improper
conclusion that Respondent spent 'meaningful time together with the child on
Wednesday'."

The evidence presented at the hearings proved that Defendant Father and the

child follow a routine on Wednesdays that provides the child with meaningful

contact with Defendant Father. On Wednesday afternoons after school, Defendant

Father takes the child to Hebrew School. The child's paternal grandmother is

present at the Hebrew School, and she and the child get to spend time talking and

sharing a snack together. N.T. June 14, 2016 at 284-285. After Hebrew School, the

child returns to Defendant Father's home, where he has dinner with Defendant

Father and Defendant Father's flancee, Ms. Cutler. After dinner, Defendant Father

helps the child with his homework, and they also spend time together playing or

talking before the child goes to bed. N .T. June 14, 2016 at 287-291.

Based on the testimony presented, Plaintiff Mother's allegation that the court

reached an improper conclusion that Defendant Father and the child spend

meaningful time together on Wednesday is therefore contrary to the evidence and

without merit, and should be· dismissed.

d, "The Court erred in fashioning the custody order by not giving appropriate
weight to the ~act that Respondentrepeatedly stated that if he were permitted

13
 substantially similar time with the child he would consent to the relocation to
Florida."

The record from the hearings in this matter does not support Plaintiff Mother's

allegation ttiat Defendant Father "repeatedly stated that if he were permitted

substantially similar time with the child he would consent to the relocation to

Florida". Defendant Father testified at the June 15, 2016 hearing: "I can't imagine

[the child] living anywhere other than very, very, close to me ... " N.T. June 15, 2016 ·

at 85. When asked by his counsel if he would be willing to accept Plaintiff Mother's

custodial plan wherein Defendant Father would receive "the same number of days"

with the child if the child were to relocate to Florida, Defendant Father stated: "I

don't like the plan whatsoever. The same number of days, you can't compare the

quality and consistency of the closeness of having [the child] nearby with being,

with having to hop on an airplane, stay in a hotel room ... it would not be the same."

N.T. June 15, 2016 at 86. Defendant Father testified that he opposed the proposed

relocation to Florida because " .. I love [the child] very, very, much. I can't really

imagine my life without him and without watching him on a weekly basis and being

very much involved in his life ... " N.T. June 15, 2016 at 83.

When asked on cross examination by Plaintiff Mother's counsel if he would be

willing to withdraw his request for 50-50 custody if Plaintiff Mother was to withdraw

her request to relocate, Defendant Father said no. N.T. Ju_ne 15, 2016 at 90. Trial

Exhibit M-12 is a January 19, 2015 email wherein Defendant Father states to

Plaintiff Mother: "Unless you can figure a way for [the child] to be with me

overnight 9/28ths of the time, 32 percent, as he is now, forget it." Trial Exhibit M-

12. When asked by Plaintiff Mother's counsel: "so if Ms. Giii]•• can figure out a

14
way or a proposal for [the child] to be with you 32 percent of the time, are you still

agreeable", Defendant Father replied "no." N.T. June 15, 2016 at 91. At no time

during his direct examination, or his cross examination, did Defendant Father

repeatedly state that he would be willing to accept "substantially similar" time with

the child if the child were to relocate to Florida.

Plaintiff Mother's allegation in paragraph d. of her concise statement that

Defendant Father "repeatedly stated that if he were permitted substantially similar

time with the child he would consent to the relocation to Florida" is contrary to the

evidence presented at the hearings, is without merit, and should be dismissed.

e. "The Court erred by not placing appropriate weight on the fact that
Respondent testified that he considered Petitioner's proposal to stop support
payments if she were able to relocate with the child, and that the main reason he
declined was because he was concerned about what his other children might
think of him . "

As stated previously in this opinion when addressing paragraph d. of Plaintiff

Mother's concise statement, Defendant Father testified that he he opposed the

relocation of the child to Florida because he did not want to lose "the quality and

consistency of the closeness of having [the child] nearby." The weight of the

evidence at the hearings proved by a preponderance of the evidence that

Defendant Father has a close, loving relationship with the child, and he does not

want to be geographically separated from the child at a distance of over nine

hundred miles.

Trial Exhibit F-22 is a January 17, 2016 email from Defendant Father to Plaintiff

Mother wherein Defendant Father states in part: "I reread the attached schedule

and gave some additional thought to your offer ... unfortunately I can't even get very

far into the idea... and I get too emotional about the fact I wouldn't be as much in

15
· [the child's] life." Defendant Father testified that this email related to Plaintiff

Mother's proposal that in exchange for her relocating to Florida with the child,

Defendant Father would no longer have to pay her alimony. N.T. June 15, 2016 at

154. However, when asked by his counsel if he considered this proposal, Defendant

Father testified: " .. .I didn't consider it very long, and it was a clear no." N.T. June

15, 2016 at 154.

Although Plaintiff Mother does not refer to any specific portion of the record to

support her contention that Defendant Father "testified that he considered

Petitioner's proposal to stop support payments if she were able to relocate with the

child, and that the main reason he declined was because he was concerned about

what his other children might think of him", on cross examination, Plaintiff Mother's

counsel stated when referring to trial exhibit F-22: "you considered the relocatlonr>

and you told her what would the girls think of me. That was your issue right?"

Defendant Father simply replied: "It was an issue."

Contrary to Plaintiff Mother's position, in reaching a decision in this matter, the

court did place the appropriate amount of weight on this issue. Defendant Father's

one time consideration of a proposal of Plaintiff Mother's to eliminate support

payments in exchange for relocation, a proposal which Defendant Father testified

he " ... didn't consider it very long, and it was a clear no", does not rise to the level to

which the court could conclude that Defendant Father's motivations for opposing

relocation are disingenuous. Consequently, Plaintiff Mother's allegation in paragraph

e. of her concise statement is without merit, and should be dismissed.

f. "The Court erred by failing to adjudicate the underlying Issuesoutlined in the
petition for Special Relief"

16
 Plaintiff Mother's August 25, 2015 Petition for Special Relief requested that the

court issue an order withdrawing the child from his current Hebrew school, and

enrolling him in a new Hebrew school which would be mutually agreed upon by both·

parents. The court's July 26, 2016 Order states on page 5 that Plaintiff Mother's

August 25, 2015 Petition for Special Relief is denied. Therefore, it is unclear how

the court failed to "adjudicate" the petition for special relief. Consequently, Plaintiff

Mother's allegation in paragraph f. of her concise statement is without merit, and

should be dismissed.

g. "The Court erred in fashioning a custody order based upon an improper
conclusion that the child has a close relationship with his two adult sisters, as this
conclusion is in direct contradiction to the wealth of evidence and testimony
presented to the contrary."

The child in this matter has two living adult sisters, FR•• Gd I & r and

J.,.... c••.... 3
J- G· IC: t testified-that her relationship with the child "has

always been very close". N.T. June 14, 2016 at 176. She stated that she worked for

several summers as his nanny, and after she graduated from college, she.worked

for a year at his preschool, where she saw him every day. N.T. June 14, 2016 at

176. J.-. Gt• I I testified: "My relationship with [the child] is everything to

me, and it is the only reason that I'm [testifying] right now, because this is

extremely distressing to me." N.T. June 14, 2016 at 180. J- cai•••t.1 testified

that if the child were to relocate to Florida, she would not be able to see the child

as often as she does now.

Fa o Gil I I testified that she also has a good relationship with the .child.

She stated that: "I'm his sister, but because I'm much older, I feel like I'm also a

3
The child has a third sister, oa G dli • , who died in an automobile accident in 2005 at the age of
nineteen.

17
guardian of his .. .I was home quite a bit. I go home every five to six weeks. I see

him each time." N.T. June 14, 2016 at 207. She also testified that if the child were

to relocate to Florida, she would be "deflnltelv" worried about her relationship with

him because she was only able to manage seeing her grandmother who lived in

Florida once a year, " ... and I expect that if my brother moves to Florida, it would be

a similar situation." N.T. June 14, 2016 at 217-218. The weight of the evidence

indicates that the court did not reach an "improper conclusion" in finding that the

child's sisters have a close and loving relationship with him.

During cross-examination, Plaintiff Mother's counsel attempted to diminish the

child's relationship with his two sisters by focusing on the amount of time they

spend with the child rather than the quality of the relationships. The court did not

conclude that the amount of time which siblings spend together outweighs the

quality and nature of the relationship as well as the feelings of affection which

siblings may have for one another.

The testimony in this matter clearly indicates that the child's sisters have a great

deal of affection for him, and their relationship with hlrnwould be compromised if

he were to relocate to Florida. Consequently, Plaintiff Mother's allegation in

paraqraph f. of her concise statement is without merit, contrary to the evidence,

and should be dismissed.

h. "The Court erred in fashioning a custody order based upon an improper
conclusion that the child had developed a close relationship with Paternal
Grandparents, Aunts, Uncles and cousins."

The child's paternal grandparents, paternal aunt and uncle, and paternal cousins

all live in the Philadelphia area. The child's paternal grandmother, J•••: ••

Gd :a, testified that she has a "warm and loving" relationship with the child.

18
N.T. June 14, 2016 at 120. She testified that she spends summers at the New

Jersey shore with him, that she sees him every Wednesday at Hebrew school, and

on Sundays the family gets together for a meal. N.T. June 14, 2016 at 125-126.

Defendant Father testified that the child has an "excellent" relationship with his

paternal grandparents, and a "great" relationship with his paternal aunt and uncle,

who "are included in every family dinner." N.T. June 15, 2016 at 44. The child

knows his paternal aunt and uncle "very well", and he has socialized and been on

vacation with them many times. The child also has a "great" relationship with his

cousins, whom he sees "all the time." N.T. June 15, 2016 at 44.

The court's conclusion that the child has a close relationship with his paternal

relatives in the Philadelphia area was not improper. The testimony in this matter

clearly indicates that the child's relationship with his paternal relatives would be

compromised if he were to relocate to Florida since his time with them would be

limited, if not effectively eliminated. Consequently, Plaintiff Mother's allegation in

paragraph g. of her concise statement is without merit, contrary to the evidence,

and should be dismissed.

i. "The Court erred in fashioning a.custody order based upon an Improper
conclusion that the child would not have similar family relationships or a similar
support system in Florida"

Plaintiff Mother testified that despite living in Pennsylvania all her life, she has a

"support system" in Florida. N.T. June 14, 2016 at 88. However, Plaintiff Mother's

family currently living in Florida consists of two people; her sister, whom she

testified she is estranged from ("we always have been"), and a cousin, Randy

Levine. N.T. June 14, 2016 at 89. The parties' daughters testified that they had

never heard of Mr. Levine prior to the custody litigation, and Plaintiff Mother

19
testified that her daughters do not know Randy Levine and that they don't have a

relationship with him. N.T. February 19, 2016 at 71; N.T. June 14, 2016 at 63 186.

Based on the evidence presented at the hearings, the court cannot conclude that :

Plaintiff Mother's family members in Florida would provide "similar family

relationships" for the child comparable to those he has with Defendant Father's

family. Plaintiff Mother herself testified that when it comes to her extended family,

she is "pretty much alone". N.T. June 14, 2016 at 89. Therefore the court did not

err or improperly conclude that the child would not have similar family relationships

in Florida to those which he currently has in Pennsylvania.

Plaintiff Mother's remaining support system in Florida would consist of four

individuals. The first is Mr. Farrell Borine, who testified that he is "best friends,

good friends" with Plaintiff Mother, and that "at times" their five year relationship

was "romantic". At the time of the hearings, Mr. Borine was planning on moving to

Florida in early Auqust, 2016. Laurie Dubow, a friend of Plaintiff Mother's with

whom she had lost touch for twenty five years, is the second individual. The final

individuals are "Isaac and Rose", operators of a summer camp in Florida where the

parties' daughters attendedwhen they were children. The testimony presented at

the hearings does not prove that these individuals would provide a similar support

system for the child in Florida to the one which he has in Pennsylvania. There was

no persuasive evidence to show that any of these individuals, other than Mr.

Borine, has a close relationship with the child, or that they have been active

participants in the child's upbringing.

For the above stated reasons, the court did not err in concluding that the child

would not have similar family relationships or a similar support system in Florida as

20
he has in Pennsylvania. Consequently, Plaintiff Mother's allegation in paragraph h.

of her concise statement is without merit, contrary to the evidence, and should be

dismissed.

j. ·"The Court erred in fashioning a custody order based upon an improper
finding that 'there was no persuasive evidence presented at the hearings that the
quality of the child's education would improve, or remain consistent for that
matter, If the child relocates to Florida' was contrary to all the evidence and
testimony presented, specifically the education expert presented by Petitioner."

There was testimony presented that the child currently attends school in the

Lower Merion School District. There was also testimony that the child is receiving

an individualized educational plan (IEP) through the school district to address his

language based learning differences. N.T. June 14, 2016 at 244-245. Defendant

Father testified that he is happy with the Lower Merion School District, but that he

also feels that the child would do better in a private school setting. N .T. June 14,

2016 at 246. Defendant Father testified that he has researched the possibility of

the child attending private school, specifically Perelman Jewish Day School in

Wynnewood, Pennsylvania, and AIM Academy in Conshohocken, Pennsylvania.

At the February 18, 2016 hearing, Plaintiff Mother called Maria Vetter, an

educational consultant, as a witness. Ms. Vetter testified that in her opinion, Lower

Merion School District was not addressing all of the child's behavioral needs.

However, Ms. Vetter testified that she did not review the child's current IEP from

Lower Merion School District because it was not provided to her, and that her

opinion as to the child's current behavioral issues was based on "communications

[Plaintiff Mother] had sent me." N.T. February 18, 20l6 at 171-172, 184-186. She

also did not meet with any of the child's teachers, nor did she meet with the child.

N.T. February 18, 2016 at 186. When asked by Plaintiff Mother's counsel if it would

21
be detrimental or beneficial to move the child to a different school district, Ms.

Vetter stated that it would "depend on the child". N.T. February 18, 2016 at 184.

Ms. Vetter did not offer an opinion as to whether the school system in Boca

Raton would specifically be able to meet the child's academic and behavioral needs

to a degree which surpasses the Lower Merion School District. In fact, she testified

that she "researched" the Palm Beach School District, and "talked to" the Donna

Klein Jewish Academy in Florida, however she did not provide any testimony as to

whether either that specific school district, or that specific school, would be a good

academic fit for the child, and would better be able to meet his learning and

behavioral issues. N.T. February 18, 2016 at 188. Ms. Vetter also testified that she

is not familiar with Florida schools. N.T. February 18, 2016 at 188. Ms. Vetter

agreed with Defendant Father's counsel that there are appropriate schools for the

child in Pennsylvania, however, she did not research them as part of her

consultant services in this case since she was not asked to do so by Plaintiff

Mother.

Plaintiff Mother's claim is without merit and that all the evidence presented at the

hearings, specifically, the education expert's testimony, proves that the court erred

in finding that "there was no persuasive evidence presented at the hearings that

the quality of the child's education would improve, or remain consistent for that

matter, if the child relocates to Florida" Ms. Vetter's opinion was based on

incomplete data; she did not review the child's current IEP, nor did she interview

the child or the child's teachers. At most, based on the information provided to her

by Plaintiff Mother, she offered the opinion that the Lower Merion School District is

not meeting the child's behavioral needs. She did not, however, testify that any ·

22·
school in Florida would be better for the child, nor did she discount the possibility,

as raised by Defendant Father, that a private school in Pennsylvania would be able

to meet the child's academic and behavioral needs. Consequently, Plaintiff Mother's

allegation in paragraph j. of her concise statement is without merit, contrary to the

evidence, and should be dismissed.

k. "The Court erred in fashioning a custody order based upon an improper
conclusion that there was 'no persuasive evidence that the relocation would
enhance the general quality of life for the child financiaUy or emotionally'."

Plaintiff Mother offered no persuasive evidence or opinion testimony that

relocation to Florida would emotionally benefit the child. Dr. Pisa testified that
•
Plaintiff Mother's negative behavior towards Defendant Father thwarts the child's

relationship with Defendant Father and that it could have a very negative

psychological impact on the child. N.T. February 17, 2016 at 150-152. If Plaintiff

Mother were permitted to relocate to Florida, Dr. Pisa supported the contention that

Plaintiff Mother could have even more of an opportunity to thwart Defendant

Father's relationship with the child. N.T. February 17, 2016 at 177.

Dr. Pisa's December 29, 2015 final report, marked and entered as trial exhibit M-

1, states that Dr. Pisa does not recommend that the child relocate to Florida. Dr.

Pisa states that " ... [t]he benefits derived by Mother as a result of the move would

have to be weighed against the losses incurred by [the child] by being displaced

from Father and Father's extended family ... [the child] would continue to derive

benefit from being exposed to Father particularly as he grows older ... if [the child]

were to stay in Philadelphia, he would have the benefit of two caring parents ... "

December 29, 2015 final report at 74; N.T. February 17, 2016 at 112.

23
 In her July 15, 2016 post trial proposed findings of fact and conclusions of law,

when addressing the emotional benefits for the child if he were to relocate to

Florida, Plaintiff Mother states that the move would "allow [the child] easy access to

the beach and ocean, which is his 'happy place'." Plaintiff Mother also states that

living in Florida would provide the opportunity for the child to play outdoors "the

majority of the year", that there are "many kids" in Plaintiff Mother's proposed

neighborhood for the child to play with, and that relocation "will also preserve the

child's close relationship with Mother" and Mr. Borine. July 15, 2016 Proposed

Findings of Fact and Conclusions of Law, page 15-16.

The court did not find that Plaintiff Mother's reasoning as to the alleged

emotional benefits to the child as stated above override Dr. Pisa's opinion that the

child needs to have the constant benefit and guidance of both parents, which will

not be possible if the child relocates over nine hundred miles away. In fact, Dr. Pisa

testified that Plaintiff Mother's negative behavior towards Defendant Father may

thwart the child's relationship with Defendant Father. If permitted to relocate to

Florida, Plaintiff Mother will have even more of an opportunity to thwart Defendant

Father's relationship with the child, which is not emotionally healthy for the child. It

is telling that Plaintiff Mother feels she must relocate to Florida in order to

"preserve" her relationship with the child. From this statement, it would appear that

Plaintiff Mother's agenda is to diminish Defendant Father's relationship with the

child, and his role in the child's upbringing, while promoting her own role.

Plaintiff Mother's testimony as to any financial benefit to be gained for the child

by relocation was not persuasive. Plaintiff Mother testified that she intended to

work as a real estate agent's assistant in Florida with the intention of becoming a

24
part-time real estate agent. However, Plaintiff Mother does not have either a

Pennsylvania or Florida real estate license. N.T. June 14, 2016 at 115. Furthermore,

Plaintiff Mother offered no persuasive evidence that she sought a similar position in

Pennsylvania or that attempted to find any job in Pennsylvania which may provide a :

similar financial benefit. N.T. June 14, 2016 64-66, 115, 1?-4. In all relocation

cases, the burden is on the relocating parent to establish a significant improvement

in the quality of life for that parent and child. Tripathi, 2001 PA Super 322. In this

case, Plaintiff Mother did not prove there would be any significant improvement

either emotionally or financially for the child in Florida.

For the above stated reasons, Plaintiff Mother's allegation in paragraph k. of her

concise statement is without merit, contrary to the evidence, and should be

dismissed.

I. The Court erred in fashioning a custody order based upon improperly
speculating that Petitioner may not be willing to promote the child's relationship
with Respondent if the child were permitted to relocate."

There was evidence presented at the hearings that Plaintiff Mother engages in

behavior which portrays Defendant Father in a negative manner to the child. Trial

exhibit F-3 is a series of Facebook posts wherein Plaintiff Mother publicly comments

on Defendant Father's alleged negative behavior towards the child. In one, Plaintiff

Mother posts two pictures of the child with a new haircut and states: "Oh no! What

did your father do to the beautiful bleached blonde hair you cultivated all summer?"

The comment and photos are followed by a frowning face. Another Facebook photo

and post states: "The little man was upset that his Dad took his siblings and cousin

to the Eagles game without him, and surprised them with personalized shirts, as

well. So, Mom to the rescue. Results... a happy little man! Hopefully next year he

25
and I will get to a game at Lincoln Field." Yet another Facebook post is a quotation

which reads "Any woman can be a mother, but it takes a Bad-A** Mom to be a dad

too."

Trial exhibit F-4 is a list of negative comments which Defendant Father states

that Plaintiff Mother has made about him to the child. Number 11 on the list is a

comment which the child made to Defendant Father when the child asked

Defendant Father: "Mommy said you don't want to be with me. Is that true?"

Number 16 on the list is a comment made by the child where he said to Defendant

Father: "Mom told me you never want to take me extra time like Mom does." The

list also contains several instances where the child has made comments to

Defendant Father that indicate that Plaintiff Mother has discussed details of the

parties' marriage and divorce with the child to a degree which can be interpreted as

inappropriate.

Dr. Pisa testified that Plaintiff Mother's negative behavior towards Defendant

Father may thwart the child's relationship with Defendant Father and that it could

have a very negative psychological impact on the child. Furthermore, Dr. Pisa

stated on page 71 of his December 29, 2015 final report: "The examiner believes

that there is not a pattern of behavior exhibited by Mother or Father to indicate that

they are not supportive of [the child] maintaining a relationship with both parents.

However, Mother's proposed geographic relocation would clearly alter [the child's]

relationship with his dad."

Based on the evidence presented at the hearlnqs, the court did not "improperly

speculate" that Plaintiff Mother may not be willing to promote the child's

relationship with Defendant Father if the child were permitted to relocate. The court

26
weighed the evidence with each and every custody and relocation factor, and found

that Plaintiff Mother's prior behavior can be interpreted as being detrimental to

encouraging and supporting Defendant Father's parenting role. Dr. Pisa himself

stated in his report that even his belief that there is not a pattern of "behavior

exhibited by Mother or Father to indicate that they are not supportive of [the child]

maintaining a relationship with both parents" needs to be weighed against the fact

that the child's relocation to Florida would "clearly alter [the child's] relationship

with his dad."

For the above stated reasons, the Court.did not err or i m prop

erly speculate that Plaintiff Mother may not be willing to promote the child's

relationship with Defendant Father if the child were permitted to relocate to Florida.

Plaintiff Mother's allegation in paragraph I. of her concise statement is without

merit, contrary to the evidence, and should be dismissed.

m. "The Court erred in applying and adopting Dr. Pisa's conclusions that if the
child were to relocate to Florida, 'in his opinion the child's loss from being
separated from Father and Father's extended family would outweigh any benefit
gained by Mother in relocating."

On Julv 6, 2015, Plaintiff Mother filed a petition for a custody evaluator to be

appointed in this matter. On July 20, 2015, the court issued an order stating that

by agreement of the parties, Dr. Anthony Pisa would perform a custody evaluation,

the costs of which were to be paid by Plaintiff Mother. Dr. Pisa completed his

evaluation, and submitted a final report on December 29, 2015. On the first day of

hearings, February 17, 2016, Plaintiff Mother called Dr. Anthony Pisa as a witness,

Both parties stipulated to Dr. Pisa's qualifications as an expert in child custody

27
evaluation. Dr. Pisa's December 29, 2015 final report was marked as trial exhibit M-

1 and moved into evidence by Plaintiff Mother's counsel.

The court did not accept Dr. Pisa's recommendation as the sole reason to deny

Plaintiff Mother's request for relocation. The court read Dr. Pisa's report and

recommendation, assessed his testimony, and weighed both the report and the

testimony with the evidence presented at the hearings, as well as with the custody

and relocation factors. Neither party presented any persuasive evidence that Dr.

Pisa's evaluation and subsequent report were inherently flawed, biased, or

unreliable. Therefore, the court did not err in considering Dr. Pisa's conclusions that

if the child were to relocate to Florida, "in his opinion the child's loss from being

separated from Father and Father's extended family would outweigh any benefit

gained by Mother in relocating." Plaintiff Mother's allegation in paragraph m. of her

concise statement is without merit and should be dismissed.

n. "The Court failed to consider the uncontroverted and well-reasoned
preference of the child, which was to be able to relocate with Petitioner."

By agreement of the parties, the court did not interview the child as part of the

custody determination in this matter. At the conclusion of testimony on June 15,

2016, Defendant Father's counsel stated: "we're in agreement, Your Honor, that we

don't need [the child] as a witness to testify in this case." N.T. June 15, 2016 at

198.
'
The only instance of the child expressing a prefer.ence as to relocation comes

from the child's interview with Dr. Pisa as part of the custody evaluation. At the

February 17, 2016 hearing, Dr. Pisa agreed with Defendant Father's counsel's

statement that the child told Dr. Pisa he wanted to move to Florida because his

28
mother's hand hurts and she'll be better in Florida. However, when asked by

Defenda~t Father's counsel: "do you think an eight year old can really understand

what moving across the country means?", Dr. Pisa replied: "No". N .T. February 17,
. .
2016 at 159. Counsel asked: "So this coming in and telling you adamantly he

wanted to move to Florida is really his reading his mother in that respect, correct",

to which Dr. Pisa replied: "His internalization of his mother, yes." N.T. February 17,

2016 at 159. Defendant Father's counsel asked: "In fact, he clearly was prepped for:

that meeting, to talk about Florida?", to which Dr. Pisa replied: "He was prepared,

yes." N.T. February 17, 2016 at 159.

The weight to be accorded a child's preference varies with the age, maturity and

intelligence of that child, together with the reasons given for the preference.

Wheeler v. Mazur, 793 A.2d 929, 2002 PA Super 46. Although the court took the

child's stated preference in the custody evaluation into account when reaching a

decision in this matter, based on Dr. Pisa's testimony, the court did not find that

the child's preference was "uncontroverted and well-reasoned". According to Dr.

Pisa, the child had been "prepared" to state his preference in terms of Plaintiff

Mother's needs, not his own. Furthermore, the court also took into consideration

the child's young age (eight years old at the time of the hearings) when reaching a

decision.

For the above stated reasons, the court did not err or fail to consider the

preference of the child when reaching a decision in this matter. Plaintiff Mother's

allegation in paragraph n. of her concise statement is without merit and should

therefore be dismissed.

29
 In the Court's July 26, 2016 Order, the court did not err or abuse its discretion in

denying Plaintiff Mother's· request for relocation, and for granting Defendant Father

two additional overnights of physical custody per month. Plaintiff Mother did not

prove that "a significant improvement in the quality of life for that parent and child"

would occur if she were permitted to move to Florida with the child. Tripathi. PA

Super 322 (2001). For the above reasons, the trial court respectfully requests that

Plaintiff Mother's appeal be dismissed and the court's July 26, 2016 order be

affirmed.

BY THE COURT:

/2~_fl<1J_
PATRICIA E. COONAHAN, J.

Copiespf the above Opinion sent
on 10//F/1~ to the following:
By Firs{-c1ass Mail:
Maria Testa, Esquire
Cheryl L. Young, Esquire

7)1~~
Secretary

30