J-A14028-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
D.P.L. IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
V.I.R.
Appellant No. 207 EDA 2017
Appeal from the Order Entered December 21, 2016
In the Court of Common Pleas of Northampton County
Civil Division at No(s): C-48-CV-2016-05812
BEFORE: BENDER, P.J.E., BOWES AND SHOGAN, JJ.
MEMORANDUM BY BOWES, J.: FILED AUGUST 17, 2017
V.I.R. (“Mother”) appeals from the December 21, 2016 custody order
denying her motion to relocate with her two children, T.B.L. and S.B.L, from
Bethlehem, Pennsylvania to Smyrna, Delaware. We affirm.
T.B.L and S.B.L were born during June 2003 and March 2005,
respectively, of Mother’s relationship with D.P.L. (“Father”). Mother and
Father never married. Between 2003 and 2010, the family resided together
in New York, New York, and then, in Bushkill, Pennsylvania. Father worked
full-time in New York City, commuting from Bushkill when necessary.
Mother occasionally worked part-time. Mostly, she remained home to care
for the children.
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Mother and Father’s relationship was tumultuous, and on several
occasions, Mother left the family home with T.B.L. and S.B.L without notice
to Father. During 2010, Mother and the girls relocated to Bethlehem,
approximately one hour south of Bushkill. For the next year, Father
exercised physical custody every weekend. However, he eventually stopped
appearing for the custody exchanges and ultimately ceased contact with the
children for approximately five months. Father blamed his inactivity upon a
combination of his frustration with Mother’s noncompliance with the custody
arrangement and his contraction of pneumonia. Nevertheless, the extended
absence caused T.B.L. and S.B.L to become estranged from Father, a
impediment which continues to plague their interactions with him.
During 2012, Father filed a petition for custody, and following court-
ordered reunification therapy and a period of supervised visitation, Father
was awarded physical custody on alternating weekends. Mother remained
the children's primary custodian. Although Father’s relationship with his
daughters did not improve, the court-ordered custody arrangement
remained unchanged.
Mother currently resides in Bethlehem, Pennsylvania. She is a
production technician for Bimbo Bakeries. During April 2015, Mother
married K.B., who is on active duty with the United States Air Force. K.B.,
currently serving a four-year enlistment, is stationed in Dover, Delaware.
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She intends to remain on active duty status for a total of twenty years, when
her military retirement becomes available.
Father resides with his wife, M.L., and his five-year old stepdaughter in
the former family home in Bushkill, Pennsylvania. He continues to commute
to his employment as a building superintendent at a commercial building in
Manhattan, a position that he has maintained for twenty years.
On July 8, 2016, Mother filed a petition for relocation seeking to
relocate with the children to Smyrna, Delaware, to reside in the home owned
by K.B. The trip from Bethlehem to Smyrna takes approximately two-and
one-half hours by automobile. Father responded with a counter-affidavit
lodging his objection to the proposed relocation pursuant to § 5337(h).
During the ensuing two-day non-jury trial, Mother testified, inter alia,
regarding the benefits of the proposed relocation to Smyrna. She does not
have employment prospects in Delaware. Instead, Mother intends to pursue
her education while K.B. supports the family financially. She posited that
the relocation would allow her to spend more time with T.B.L and S.B.L and
be more involved in their education, social life, and physical activities. She
testified that the school system is comparable to the school district that the
children currently attend. Ultimately, Mother desired to move to Delaware
so that she and the children can be closer to K.B., who presented additional
testimony about her home, the surrounding community, and her relationship
with T.B.L and S.B.L.
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As it relates to Father, Mother proposed that he exercise physical
custody one weekend per month during the academic year and extended
periods over the summer vacations. She recommended that the custody
exchanges occur at an approximate half-way point between Bushkill and
Smyrna.1
The trial court interviewed T.B.L and S.B.L. separately in chambers.
Both girls stated their preference to relocate to Delaware and acknowledged
their extreme animosity toward Father, whom they address by his first
name. Although the older daughter, T.B.L., was able to identify the source
of her acrimony, i.e., feelings of abandonment associated with Father’s
extended absence and annoyance with what she perceives as his attempts to
tear her from Mother, eleven-year-old S.B.L. has difficulty articulating her
feelings. She simply stated that she does not feel comfortable around
Father, who makes her feel like a “random stranger.” N.T., 10/12/16, at 61.
In addition, the trial court considered the opinions and
recommendations of two court-appointed experts, Ronald J. Esteve, Ph.D.
and Anthony Cuttitta, a licensed clinical social worker. Both experts
confirmed the girls’ severe hostility toward Father and recommended, inter
alia, that Father have frequent, consistent, and extended interactions with
his daughters in order to improve the anemic father-daughter relationships.
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The most direct route between the communities by automobile is an
estimated three-and-one-half hour trip.
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While neither expert advocated against relocation, both recognized that the
additional distance could cause further harm to the strained parent-child
relationship. Specifically, Dr. Esteve opined that the distance could make it
difficult to implement his recommendation to increase the frequency and
duration of Father’s contacts with T.B.L. and S.B.L. N.T., 8/31/16, at 17,
20, 23-24. Similarly, when asked about the proposed relocation’s impact
upon the continuing reunification process, Mr. Cuttitta explained,
In terms of attachment issues, the girls attaching to him
emotionally and psychologically, I don’t think it would help . . . if
he saw them, you know, very intermittently or [for a] couple
weeks in the summer here and there. I think that kind of
diminishes his significance in their lives, and I think it would
continue to alienate him from their lives as a significant object.
So no, I don’t think that would help.
Id. at 42.
Following the close of evidence and review of the parties’ legal
memoranda, the trial court entered the above-referenced order denying
Mother’s petition to relocate to Delaware. Mother filed a timely notice of
appeal and complied with the trial court order directing her to file a concise
statement of errors complained of appeal pursuant to Pa.R.A.P. 1925(b).
She raises one question for our review: “Did the Court err in not granting
Mother’s [p]etition for [r]elocation?” Mother’s brief at 23.
We review the trial court’s custody order for an abuse of discretion.
S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa.Super. 2014). We defer to the trial
court’s factual findings that are supported by the record and its credibility
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determinations. Id. This Court will accept the trial court’s conclusion unless
it is tantamount to legal error or unreasonable in light of the factual findings.
Id.
In relation to relocation, the Child Custody Law provides:
(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.
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(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).
In denying Mother’s petition to relocate the children from Bethlehem,
Pennsylvania, to Smyrna, Delaware, the trial court considered the ten
relocation factors enumerated in § 5337(h). Specifically, the court found
that §§ 5337(h)(1), (2), (3), and (5) favored Father to varying degrees and
that, while §§ (h)(4), (6), and (7) militated in favor of Mother, those
considerations were insufficient to warrant relocation. As part of its
consideration of § h(10), the catchall factor, the trial court reviewed the best
interest factors outlined in § 5328(a)2, particularly §§ (a)(11) and (13),
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§ 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
(Footnote Continued Next Page)
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(Footnote Continued)
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.
(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
(Footnote Continued Next Page)
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relating respectively to the proximity of the residences and the levels of
conflict and cooperation between the parties. The remaining relocation
factors were either neutral or inapplicable.
The crux of Mother’s argument is that the trial court erred in
considering the statutory relocation factors through the lens of T.B.L.’s and
S.B.L.’s acrimony for Father and the impact of the proposed relocation upon
the ongoing efforts to rehabilitate those relationships.3 Mother essentially
asserts that the trial court was required to examine the relevant statutory
factors free of any hue cast by the critical need to repair the vitriolic father-
daughter relationships. She specifically identifies the trial court’s
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(Footnote Continued)
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).
3
To the extent Mother asserts that the trial court’s concern for the father-
daughter relationships was not warranted because Father created the
situation by abandoning T.B.L and S.B.L. for five months during 2011, the
certified record belies the factual assertion that Father was solely responsible
for the absence. Specifically, the trial court found that Father had explained
the hiatus as being triggered by a severe illness and his frustration with
Mother’s noncompliance with the custody order. See Trial Court Order and
Opinion, 12/19/16, at 7. As the record sustains this factual finding, we will
not disturb it. See N.T., 10/12/16, at 84-85.
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considerations of factors one, two, four, six, seven and eight as evidence of
the court’s preoccupation with the effect that the relocation would have upon
the parent-child relationships. Essentially, she complains that the trial court
assessed greater weight to factor three regarding the preservation of the
girls’ relationships with Father, than all of the remaining considerations
combined. In sum, she asserts that the court predetermined that the
proposed relocation would impact the parent-child relationship adversely and
concluded that this reality “wipes out all other considerations and outweighs
each individual factor.” Mother’s brief at 28. We disagree.
Mother’s arguments fail for several reasons. First, the underpinnings
of her assertions regarding the court’s consideration of specific factors are
faulty. Mother’s objections to the court’s analysis under factor one fails
because, contrary to her protestations, the status of the father-daughter
relationships is particularly salient to the court’s consideration of “The
nature, quality, extent of involvement and duration of the child[ren]’s
relationship with . . . the nonrelocating party.” 23 Pa.C.S. § 5337(h)(1).
Likewise, the extreme animosity and parental alienation that is present in
this case is significant to the court’s proper contemplation of “the likely
impact the relocation will have on the child's physical, educational and
emotional development.” Id. at § 5337(h)(2). Similarly, the trial court could
not effectually weigh the stated preferences of T.B.L and S.B.L. in favor of
relocation pursuant to § 5337(h)(4) without also accounting for their disdain
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for Father, ambivalence toward his hardship, and the aggravating effects
that the proposed relocation would have upon the already-strained rapport.
As the foregoing statutory factors implicate T.B.L.’s and S.B.L.’s
relationships with Father, we reject Mother’s contention that the court erred
in examining those considerations through the lens of Father’s ongoing
efforts to rectify the turbulent dynamic among him and his daughters.
In relation to the sixth and seventh factors, which Mother complains
were improperly weighed, the trial court found that both components
militated in favor of relocation but that they were insufficient to overcome
the harmful effect that the relocation would have on the children’s
relationship with Father. It is beyond argument that the mandate to assess
the statutory factors and to balance those collective assessments rests with
the trial court as the ultimate arbiter of fact. As we explained in M.J.M. v.
M.L.G., 63 A.3d 331, 339 (Pa.Super. 2013), “it is within the trial court's
purview as the finder of fact to determine which factors are most salient and
critical in each particular case.”
Mother’s contention that the trial court misapplied the eighth factor,
relating motives, fares no better. The assertion is simply incorrect. The trial
court found that the motives of both parties were sincere and did not weigh
the factor in favor of Father. Instead, the court recognized that Mother’s
decision to relocate three-and-one-half hours away from Father’s home
placed her desire to be with K.B. above Father’s interest in realizing a
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constructive relationship with his daughters. As this is an accurate
observation of the circumstances, Mother’s attempts to assail it as an
improper consideration fails.
Moreover, the oversight that Mother requests this Court to exercise
over the trial court’s consideration of the statutory factors is contrary to our
jurisprudence. A party cannot dictate the weight that the trial court
attributed to the evidence or its consideration of any single factor. A.V. v.
S.T., 87 A.3d 818, 820 (Pa.Super. 2014) (citation omitted) (“Rather, the
paramount concern of the trial court is the best interest of the child.”).
Recall that it is the fact-finder’s purview to decide which of the enumerated
factors are the most salient to the facts of a particular case. M.J.M., supra,
at 339. Furthermore, consistent with our standard of review, we will not
interfere with the trial court’s consideration of the children’s best interest
absent an abuse of discretion. Id. Stated plainly, “The test is whether the
evidence of record supports the trial court’s conclusions.” Id. quoting
Ketterer v. Seifert, 2006 PA Super 144, 902 A.2d 533, 539 (Pa.Super.
2006). Thus, insofar as Mother’s argument challenges the trial court’s
determinations regarding the weight and saliency of the various statutory
factors, no relief is due.
Finally, to the extent that Mother complains that certain aspects of the
trial court’s consideration of the father-daughter relationships were contrary
to the evidence, this argument also fails. During the evidentiary hearing,
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the trial court considered the expert opinions of two court-appointed
evaluators, Dr. Esteve and Mr. Cuttitta. In addition to acknowledging the
children’s extreme animosity toward Father, Dr. Esteve found a lack of
ambivalence that suggests long-term parental alienation. N.T., 8/31/16, at
17. He noted that, while both girls demonstrated dramatic behavior, their
animosity toward Father can be improved with intensive counseling so long
as the parties support the process. Id. at 21. Dr. Esteve endorsed Father
engaging in interactions with the girls more frequently and for longer
durations. Specifically, he recommended frequent counseling sessions with
each daughter separately, an improved level of communications among the
family, and less interference by Mother. Id. at 17.
While Dr. Esteve declined to proffer a specific opinion as to relocation
per se, he stated unequivocally that he would discourage the relocation to
the extent that it impinged upon his recommendations for increased
interaction. Id. at 20. He expounded, “So if the relocation still permits all
of those recommendations that I just described to occur . . . then maybe
there can be an argument for [it]. However, if [relocation] further makes it
difficult to do all of what I just described, then of course I would discourage
it.” Id. at 20.
Mr. Cuttitta’s testimony paralleled Dr. Esteve’s assessment, however,
Mr. Cuttitta’s references related to his interactions with T.B.L. and S.B.L.
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during the 2014 reunification therapy.4 Importantly, Mr. Cuttitta identified
in the children significant reluctance to associate with Father and a
resistance to any reunification efforts. Id. at 39. He noted substantial
hostility on the girls’ part and an unwillingness to allow themselves to accept
Father’s attempts to re-engage. Id. at 39-40.
Mr. Cuttitta opined that Father needs to maintain consistent
interactions with T.B.L. and S.B.L. over extended periods in order to repair
the damaged relationships. Id. at 41. He recommended weekly, or at least
bi-weekly, overnight visitation. Id. As noted, supra, Mr. Cuttitta would not
support any proposed relocation scheme that impeded Father’s ability to
interact with his daughters regularly. He summarized his opinion with the
following query, “[H]ow do you attach with your daughters if you’re
spending most of your time traveling back and forth? It’s ridiculous.” Id. at
43.
In light of the court-appointed experts’ shared perspective of the
parent-child relationships and the joint recommendation that Father
maintain more frequent contact with T.B.L. and S.B.L. in order to repair the
damaged relationships, we find no basis to conclude that the trial court erred
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4
Although Mother does not assert that Mr. Cuttitta’s testimony is stale
considering the fact that he discontinued his contact with the family during
2014 or 2015, we observe that his expert assessment is founded upon the
girls’ static disdain for Father which has continued to plague Father’s
reunification efforts since the family last utilized therapy.
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in highlighting the girls’ enmity in its consideration of the relocation factors
pursuant to § 5337(h).
Having found that the certified record sustains the trial court's decision
to deny Mother’s petition to relocate T.B.L. and S.B.L from Bethlehem,
Pennsylvania, to Smyrna, Delaware, we affirm it.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/17/2017
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