D.J. v. A.B.

J-S07044-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

D.J. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
A.B. :
:
Appellant : No. 1652 MDA 2018

Appeal from the Order Entered September 4, 2018
In the Court of Common Pleas of Luzerne County Civil Division at No(s):
5230 of 2016

BEFORE: OLSON, J., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.: FILED MARCH 12, 2019

Appellant, A.B. (Mother), appeals from the order entered of the Court of

Common Pleas of Luzerne County (trial court) denying Mother’s petition for

primary custody and proposed relocation with the child, instead awarding the

parties shared legal custody, D.J. (Father) primary physical custody, and

Mother partial physical custody with respect to the female child, A.S.J. a/k/a

A.J. (Child). Upon careful review, we affirm.

At the time of Child’s birth in June 2013, Mother and Father resided

together in Hudson/Plains, Luzerne County, and had been together for a little

over one year. Both are recovering drug addicts. Mother, Father and Child

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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additionally resided with Father’s daughter, S.J., and granddaughter, M.J. 1, 2

Significantly, S.J. is only one day younger than Child, and M.J. is one year

older than Child and S.J. Evidence was presented that the three girls are

extremely close and consider themselves sisters. N.T., 8/7/18 at 41, 54.

Mother and Father never married and, after an approximate four-year

relationship, separated on April 30, 2016, when Mother moved to Bangor,

Northampton County, where she grew up and where her parents, Maternal

Grandparents, and brother, Maternal Uncle, still resided. At the time, Mother

had been working in Northampton County for one year.3 Upon Mother’s move

to Northampton County, Mother moved in with Maternal Grandparents and

Maternal Uncle and continued to live with Maternal Grandparents at the time

of the hearings.4, 5 As Mother initially took Child with her, Father initiated the

____________________________________________

1Father also had and continued to have custody of another daughter, M.J.,
every other weekend, and two sons in the summer. N.T., 8/7/18, at 11.

2 Father obtained primary custody of M.J. when she was eight or nine months
old and S.J. when she was three months old. N.T., 8/7/18, at 49-50.

3 Mother indicated that she subsequently obtained new employment. N.T.,
8/7/18, at 13.

4Mother testified on August 7, 2018, that her brother, Maternal Uncle, had
moved out of Maternal Grandparents’ residence approximately one year prior
but remained nearby. N.T., 8/7/18, at 9.

5Father continued to reside just down the street from where he resided with
Mother in Hudson/Plains, Luzerne County. N.T., 8/7/18, at 10.

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within custody action in Luzerne County filing a Complaint for Custody and an

Emergency Petition for Special Relief.6 After conciliation conference and by

agreement, the trial court entered an order dated July 6, 2016, and filed July

8, 2016, that the parties were to exercise shared legal custody, with Father

to exercise primary physical custody and Mother partial physical custody every

other weekend from Friday at 6:15 p.m. until Sunday at 6:15 p.m.7, 8 Interim

Order, 7/8/16.

On August 12, 2016, Mother served and filed a Petition and Notice for

Relocation with Child to Bangor, Northampton County, requesting to relocate

with Child as soon as possible and/or within thirty days for “better

opportunities” and a “chance to blossom into herself in a calming

____________________________________________

6 Mother then commenced an action in Northampton County which she
subsequently agreed to withdraw, and the parties thereafter agreed to shared
legal custody with primary physical custody with Father. Interim Order,
5/25/16; see also N.T., 8/7/18, at 7-8.

7 This order remained the controlling custody order at the time of the hearings.
Notably, however, pursuant to subsequent order dated June 28, 2018, and
entered June 29, 2018, Mother’s custodial time was extended for the summer,
“from the last day of school until the start of the 2018-2019 school year,” to
every other Thursday at 6:15 p.m. to Sunday at 6:15 p.m. Interim Order,
6/29/18, at ¶2. Aside from recognizing and directing Father as to his
Coordinated Child Care funding, the order approved a week of vacation for
Mother in July 2018. Id. at ¶¶1, 3.

8Pursuant to order dated December 15, 2016, and filed December 19, 2016,
Mother’s partial physical custody was additionally restricted to Northampton
County, subject to three days’ advance notice to and the agreement of Father.
Order, 12/19/16.

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environment.” Id. at ¶4g; see also N.T., 8/7/18, at 42-43. In response,

Father filed a Counter-Affidavit Regarding Relocation objecting to the

relocation and modification of the custody order on August 24, 2016. Counter-

Affidavit Regarding Relocation, 8/24/16.

On February 10, 2017, Mother, through counsel, filed a Petition for a

Relocation Hearing. Petition for a Relocation Hearing, 2/10/17. As an

alternate schedule of physical custody, Mother proposed Father have partial

physical custody every other Friday at 6:15 p.m. to Sunday at 6:15 p.m. Id.

at ¶9. Further, Mother asserted the relocation to be in the best interests of

the child as Mother “has family support and assistance with childcare as well

as substantially greater employment in the Northampton County area.” Id.

at ¶11.

I.

Before we begin, to better understand what follows, it is worthwhile to

set forth the well-settled law regarding custody disputes. 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, 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).

Child custody actions are governed by the Child Custody Act, 23 Pa.C.S.

§§ 5321-5340. Trial courts are required to consider “[a]ll of the factors listed

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in section 5328(a) . . . when entering a custody order.” J.R.M. v. J.E.A., 33

A.3d 647, 652 (Pa. Super. 2011) (emphasis in original); see also A.V. v.

S.T., 87 A.3d 818, 823 (Pa. Super. 2014) (providing that trial courts shall set

forth the mandatory assessment of the Section 5328(a) best-interest factors

“prior to the deadline by which a litigant must file a notice of appeal”) (citation

omitted). This statutory section provides 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.

(6) The child’s sibling relationships.

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(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). Now to the proceedings before the trial court.

Where a request for relocation of the subject child along with a parent

is involved, the trial court must consider the following ten relocation factors

set forth within Section 5337(h) of the Act:

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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). See E.D. at 81-82 (“Section 5337(h) mandates that

the trial court shall consider all of the factors listed therein, giving weighted

consideration to those factors affecting the safety of the child.”)

II.

The trial court conducted hearings on August 16, 2017, and August 7,

2018. During the hearings, the court heard from Maternal Grandmother, J.B.;

Mother’s friend, A.F.; Paternal Grandmother, E.J.; and Father’s friend, T.C.

Mother and Father, represented by counsel,9 each additionally testified on

their own behalf. In addition, the court then spoke with Child, who was five

years old at the time, in camera, on August 21, 2018.10, 11 At the court’s

____________________________________________

9 We observe that counsel who represented Father on August 16, 2017,
unexpectedly passed away shortly thereafter. See Motion for Continuance,
10/3/17, at ¶2; see also Petition for Special Relief, 12/5/17, at ¶4. This
resulted in several continuances. See Order 2/16/18; see also Order
10/3/17. Father was represented by new counsel on August 7, 2018.
Subsequent to the instant appeal, Father’s new counsel filed a motion to
withdraw as counsel on November 21, 2018, which was granted by this Court
on November 27, 2018. As such, Father filed his brief with this Court pro se.

10 Both counsel for Mother and Father were present and given the opportunity
to ask Child questions. N.T., 8/21/18, at 20-23.

11 Child testified that she wants to spend more time with Mother because she
only gets to spend a little bit of time with her and misses her. N.T., 8/21/18,
at 11, 19.

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direction, Mother filed a petition for primary physical custody on August 22,

2018.12

On September 4, 2018, the trial court denied Mother’s petition for

primary custody and proposed relocation with the Child and awarded the

parties shared legal custody, Father primary physical custody, and Mother

partial physical custody. Specifically, Mother was awarded partial physical

custody every other weekend from Friday at 6:15 p.m. until Sunday at 6:15

p.m. during the school year, and from Thursday at 6:15 p.m. to Sunday at

6:15 p.m. during the summer. The order additionally addressed, among other

things, holidays, vacations, transportation and telephone contact. Aside from

an alternating holiday schedule, each party was afforded two non-consecutive

weeks of vacation with thirty days’ notice to the other party, as well as

____________________________________________

12 The trial court stated:

. . .Obviously, one cannot petition for relocation without having
primary physical custody. So[,] therefore, I am going to require
counsel for [Mother] to remedy this defect and file a petition for
primary physical custody – she obviously seeks it, and the
testimony certainly supports that wish – so that I may act. But,
so everybody realizes, my first decision will be whether [M]other
should have primary physical custody, and if I determine that she
should not, that’s where the inquiry and the decision making ends.
If I determine that she should have primary physical custody, then
I will engage in a decision as to whether relocation is proper.

N.T., 8/7/18, at 131-32.

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reasonable telephone contact. Further, transportation was the responsibility

of Mother.

In its 1925(a) opinion, 13 the trial court addressed the custody factors

pursuant to Section 5328(a) and 23 Pa.C.S. § 5337(h). In examining the

factors set forth, the court found Section 5328(a)(2) and (15) inapplicable.14

The court determined that Section 5328(a)(1), (2), (3), (4), (5), (7), (8), (9),

(10), (11), (12) and (13) favor both parties or were neutral. The trial court

____________________________________________

13 While Mother did not comply with Pa.R.A.P. 1925(a)(2)(i) by failing to file a
concise statement of errors complained of on appeal concurrently with her
notice of appeal, as Mother filed a statement only one week later and there is
no assertion of any prejudice, we do not quash or dismiss her appeal. See In
Re K.T.E.L., 983 A.2d 745, 747 (Pa. Super. 2009) (holding that failure to file
a Rule 1925(b) statement concurrently with a children’s fast track appeal is
considered a defective notice of appeal, to be disposed of on a case-by-case
basis, but did not result in dismissal or quashal where there was no prejudice
to the other parties as a result of the late filing); Cf. Mudge v. Mudge, 6 A.3d
1031 (Pa. Super. 2011) and J.M.R. v. J.M., 1 A.3d 902 (Pa. Super. 2010)
(failure to file a Rule 1925(b) statement, when ordered by the Superior Court,
will result in a waiver of all issues on appeal); J.P. v. S.P., 991 A.2d 904 (Pa.
Super. 2010) (finding that the appellant waived issues for appeal by failing to
comply with the trial court’s order directing her to file a Rule 1925(b)
statement within 21 days).

14Mother and Father are both diagnosed with depression and anxiety for which
they take medication and for which Father receives disability. N.T., 8/7/18,
at 22, 25, 51, 90-91. Additionally, Father suffered a foot injury in 2013 while
working a construction job. Id. at 51-52.

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determined that Section 5328(a)(6), (14) and (16) favored Father and against

Mother.15, 16 Id. at 5-10.

In explaining its decision regarding factor 6, the trial court stated that it

was a significant factor explaining:

Both Mother and Father acknowledge that[,] for the past
two years, Father has had primary physical custody of A.J. Mother
admitted on cross-examination that she left Luzerne County on
April 30, 2016[,] and[,] since that time[,] the minor child has been
primarily residing with her father.

Father testified that he resides [in] Hudson, Pennsylvania.
He further testified that the minor child resides with him, his other
daughter, S.J., and his granddaughter, M.J. All three (3) children
are close in age. Father testified that his granddaughter, M.J., is
six years old; S.J., his daughter, is five years old and his daughter,
A.J.[,] is also five years old. Father further testified that his child,
M.J., who is 10 years old, visits him from Allentown every other
weekend. Father emphasized that he’s had primary physical
custody of his six[-]year[-]old granddaughter M.J., since she was
eight or nine months old. He also has had primary physical
custody of his five[-]year[-]old daughter, S.J.[,] since she was
three months old.

Father testified that the minor child, A.J., his daughter, S.J.,
and his granddaughter, M.J.[,] are very close to each other. The
minor child considers them to be her sisters. Father stated that
A.J. is well aware that M.J. is her niece; however, the girls like to
consider themselves as sisters. Father describes their relationship
as very close. Father testified that the children are involved in
many activities in the camp they attend during the summer. The
children go to different trips throughout the week. Father also
testified that he walks with the children around the neighborhood.
He takes them to the park. He also takes them bike riding as well
____________________________________________

15 The trial court incorrectly refers to Section 5328(a)(14) as Section
5328(a)(15).

16 The court stated similarly in its order of September 4, 2018.

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as having them ride their scooters. Father testified that the
children have a “bubble machine” that they play with in the
backyard. Father stated that he takes the children swimming at
the neighbor’s backyard pool. He also has cookouts with the
children and arranges play dates for the children with their friends.

In considering sibling relationships, the court is well aware
that the [f]ather’s granddaughter is A.J.’s niece even if A.J.
believes that she is her sister. The court also realizes that it is
difficult to explain to a five year old or even for a five year old to
visualize that she is the aunt of a six year old. Of course, as the
children get older, it will be easier for them to understand their
relationship. The child, A.J., however, also has a half-sister, S.J.,
who has been residing with her for two (2) years and who is the
same age. It is obvious from the [f]ather’s testimony that the
girls are very close. The child, [in camera], testified that she has
three (3) sisters. She stated that she resides with two of her
sisters and that she likes playing with them. She stated that they
play with dolls and cars. In this case, the preservation of sibling
relationships is important since Mother resides one and one half
hours from Father’s residence. If Mother was to have primary
physical custody, A.J. would only see her sibling twice per month
in light of the distance between the two residences. The children
have a very close bond as they have been residing together with
the Father in excess of two years.

As to factor 14 weighing in favor of Father and against Mother, the trial

court stated:

This factor also pertains to one of the alleged errors raised
by the Mother, namely that the [c]ourt failed to consider Father’s
drug history. Mother testified that in 2010 (prior to the minor
child’s birth) while Mother was battling drug addiction, she was
involved in a bank robbery with a former boyfriend. She indicated
that she was in an abusive relationship. At the time, Mother was
abusing prescription drugs and also using heroin. With respect to
the bank robbery, [M]other admitted that she was a driver during
that incident and that she worked with the prosecution and was
not criminally charged.

Mother testified that she entered into a thirty (30)[-]day
rehabilitation facility and subsequently stayed in Dallas, PA at a
halfway house for six months. She stated that she does not attend

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AA [“Alcoholics Anonymous”] meetings; however, she has a
counselor that she meets with at her church support group.
Mother did indicate that she has been sober for six years.

Father stated that [M]other was seen drinking
approximately a year ago. Father indicated that one cannot be
drinking and still be in recovery. [Maternal Grandmother]
admitted on cross-examination that her daughter had a previous
drug history. [Maternal Grandmother] further admitted that
between the age of 17 until Mother began residing with Father,
Mother had a drug history. [Maternal Grandmother] admitted that
prior to Mother moving with Father, Mother overdosed and as a
result was in the hospital. [Maternal Grandmother] further
admitted that when Mother moved in with Father, Mother was in
recovery. According to [Maternal Grandmother], Mother does not
go to any AA meetings[,] nor does she have a sponsor. She has
a support group with the church. When asked on cross[-
]examination whether Mother still consumes any alcohol,
[Maternal Grandmother]’s response was that she occasionally
drinks a glass of wine. According to [Maternal Grandmother],
although [M]other has a drug history, Mother did not have an
alcohol problem. The [c]ourt takes into consideration the
testimony of Mother’s friend, [A.F.]. [A.F.] indicated that she has
known Mother during her addiction and also after her recovery.
[A.F.] finds that Mother has conquered her addiction and is
capable of having primary physical custody of the minor child.
[A.F.] further stated that she has never seen Mother consume any
alcohol in her presence.

Father testified that he had a history of substance abuse and
currently he is in recovery for eight (8) years. He stated that he
travels to different facilities and conducts meetings in order to
help people who are still struggling with the disease of addiction.

The [c]ourt finds Father seems to be more involved in his
recovery than Mother. Father still works with people with
addiction and he has been sober longer than Mother. Not only
that, but the maternal [g]randmother admitted that Mother still
occasionally drinks wine. Although Mother had stated that her
addiction involved prescription pills and heroin, this court views
alcohol as a substance from which a person in recovery should
abstain.

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As to factor 16 regarding other relevant factor, the trial court found that

there was no credible evidence presented to change the status quo.

Father has had primary physical custody of A.J. for in excess
of two (2) years. Based upon the testimony given, the child is
very happy and is attached to her half[-]sister, S.J.[,] and the
[f]ather’s granddaughter, M.J., who is only six (6) years old. The
court finds that the status quo should be preserved and that
Father’s primary physical custody should [] not be disrupted. The
child and her sister attend [k]indergarten together. They’re
involved in activities together and love being together.

The court will not significantly disrupt the current schedule
since it would not be in the child’s best interest. . . .

Trial Court Opinion, 11/1/18, at 4-9 (emphasis in original) (citations to record

omitted).

Even though it found that Mother should not be awarded primary

physical custody, the trial court additionally addressed the relocation factors

pursuant to Section 5337(h). Id. at 10-14. The court found Section

5337(h)(9) inapplicable. Id. at 11. The court determined Section 5337(h)(2),

(4), (5), (7) and (8) favored both parties or were neutral. Id. at 10-11.

Conversely, the court determined Section 5337(h)(1), (3) and (6) favored

Father and against Mother.17 Id. at 11-14.

Regarding factor 1 involving the nature, quality, extent of involvement

and duration of the child’s relationship with the party proposing to relocate

____________________________________________

17 The court stated similarly in its order of September 4, 2018.

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and with the nonrelocating party, siblings and other significant persons in the

child’s life, the trial court stated:

Both Mother and Father are attentive with A.J. and are
involved with the child when the child is in his or her custody.
However, the court finds that the child’s relationship with her
[f]ather and her sibling weighs more in favor of the [f]ather. With
respect to the [m]other, [Maternal Grandmother] testified that the
mother is very attentive to her child. When the minor child visits
her mother, [M]other spends the entire period of time with her.
She takes her swimming to the pool. She takes her to the movies
and to the beach. She also has the minor child attending family
events. [Maternal Grandmother] describes the minor child as very
loving and very pleasant.

With respect to the [f]ather, Father testified that he works
three (3) days per week and has two days off from work on Fridays
and Mondays. He, therefore, has a four-day weekend that he’s
able to spend time with the children. Father further testified that
he is on the parent committee of the [c]hild’s day care. He also
stated that he is the state delegate representative for Headstart.
Father emphasizes that he teaches A.J. to be an individual and to
express her creativity, educationally and in other aspects.

This [c]ourt is also considering the length of time that [] A.J.
has been residing with her half-sister[,] which is in excess of two
(2) years. Father testified that the minor child and his daughter,
S.J., as well as his granddaughter, M.J. are very close to each
other. The minor child considers them to be her sisters. Father
stated that A.J. also is well aware that M.J. is her niece; however,
the girls like to consider themselves as sisters. Father describes
their relationship as very close. Father testified that the children
are involved in many activities in the camp they attend during the
summer. The children go to different trips throughout the week.
Father also testified that he walks with the children around the
neighborhood. He takes them to the park. He also takes them
bike riding as well as have them ride their scooters. Father stated
that he also takes the children swimming at the neighbor’s
residence. He has cookouts with the children and has them
involved in play dates with their friends.

The child, A.J.[,] also has her half-sister, S.J., who has been
residing with her for two (2) years and who is the same age.

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Father testified that the girls are very close. The child, in the [in
camera] interview, testified that she has three (3) sisters. She
stated that she resides with two of her sisters and that she likes
playing with them. She stated that they play with dolls and cars.

Id. at 10-14.

As to factor 4 involving that the feasibility of preserving the relationship

between the non-relocating party, the trial court found that:

[I]t is difficult for Mother to preserve the relationship
between Father and the child considering that Father has had
primary physical custody of the child for over two (2) years and
Mother is the one proposing to relocate with the child. Mother’s
custodial period is every other weekend during the school year.
This is not a case where Mother has primary physical custody of
the child and is seeking to relocate with the child and is offering
substituted visits for Father.

As to factor 6 which addresses whether the relocation will enhance the

general quality of life for the party seeking the relocation, the trial court found

that:

This factor is weighed in favor of the Father. Mother in this
matter relocated to Bangor[,] Pennsylvania without the child prior
to filing a Petition for Relocation. Mother did testify that she has
a new employment position. Mother testified that she is [a]
scheduling coordinator [at a hospital cancer institute] and that she
had this position for approximately one year. Mother testified that
prior to her new employment, she worked at a hospital for two
years as a scheduler. The court would have considered whether
Mother’s relocation would enhance her general quality of life
except in this case, Mother relocated prior to filing a Petition to
[R]elocate.
III.

On appeal, Mother raises the following issues for our review:

1. Did the [t]rial [c]ourt commit an error of law and abuse its
discretion by failing to grant [Mother]’s request for primary
custody when the custody factors weighed in her favor?

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2. Did the [t]rial [c]ourt commit[] an error of law and abuse its
discretion by failing to grant [Mother]’s request for relocation
when the relocation factor[s] weighed in her favor?

3. Did the [t]rial [c]ourt commit an error of law and abuse its
discretion in finding custody factor 6 weighed in favor of [Father]?

4. Did the [t]rial [c]ourt commit an error of law and abuse its
discretion by finding custody factor 14 weighed in favor of
[Father]?

Mother’s brief at 3.18

Turning to Mother’s first two issues on appeal, Mother makes a

generalized claim that the trial court erred and/or abused its discretion in

failing to find that the custody and relocation factors pursuant to 23 Pa.C.S. §

5328(a) and 23 Pa.C.S. § 5337(h) weighed in her favor. In her brief, Mother

suggests that Section 5328(a)(1), (4) and (10) were weighed incorrectly and

should have been weighed in her favor. Id. at 11-13. Moreover, as to

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18 Our standard of review in child custody cases 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. We may reject the conclusions of the trial
court only if they involve an error of law, or are unreasonable in
light of the sustainable findings of the trial court.

V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations omitted).

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relocation, Mother suggests that Section 5337(h)(1), (3), (5) and (6) were

weighed incorrectly and should have been weighed in her favor.

As to these issues, we agree with the trial court that those issues were

waived as Mother’s Rule 1925(b) statement was not specific and/or detailed

enough as to the factors Mother claimed the court failed to weigh in Mother’s

favor. The trial court reasoned,

. . .The [c]ourt finds that two of those alleged errors do not
comply with Pa.R.A.P. 1925(b)(4)(ii) which states as follows:

(ii) The Statement shall concisely identify each ruling of error that
the appellant intends to challenge with sufficient detail to
identify all pertinent issues for the judge. (emphasis added).

The two alleged errors that this [c]ourt finds are not in
compliance with Pa.R.A.P. 1925(b)(4)(ii) are as follows:

1. That the trial court abused its discretion and erred as a
matter of law in not granting [Mother]’s [r]equest for primary
physical custody when the custody factors weighed in favor of
[Mother]; and

2. That the trial court abused its discretion and erred as a
matter of law in denying [Mother]’s [r]equest for [r]elocation
when the relocation factors weighed in favor of [Mother] based
upon the evidence presented.

In the [c]ourt’s Order of September 4, 2018, the court
specifically stated which custody factors and relocation factors
favored both of the parties and which factors weighed in favor of
either Mother or Father.

The custody factors outlined in 23 Pa.C.S. §5328(a) total
fifteen (15). The relocation factors outlined in title 23 Pa.C.S.
§5337(h) total nine (9). In the above alleged errors, Mother
needed to specifically identify which factors in custody and
relocation that she alleges the [c]ourt abused its discretion in
weighing against her. Pennsylvania Rule of Appellate Procedure
1925(b)(4)(vii) states that issues not included in the Statement
and/or not raised pursuant to the provisions outlined in

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[subsection](b)(4) are waived. Therefore, due to Mother’s failure
to identify which factors the court failed to hold in Mother’s favor
in the custody and relocation matters, the court finds that these
two arguments are waived.

Trial Court Opinion, 11/1/18, at 1-2.19 See Krebs v. United Refining

Co. of Pennsylvania, 893 A.2d 776, 797 (Pa. Super. 2006) (stating that a

failure to preserve issues by raising them both in the concise statement of

errors complained of on appeal and statement of questions involved portion

of the brief on appeal results in a waiver of those issues). In any event,

Mother, in issues three and four, did raise issues as to specific custody factors

and irrespective of waiver, we would find these claims meritless.

With her third issue that Section 5328(a)(6) regarding the Child’s sibling

relationships, Mother contends that the trial court erred in finding this factor

favored Father as it afforded too much weight to this factor and Child’s

relationships with her siblings through Father. Mother’s brief at 16-17.

Mother argues that the trial court’s determination that Father should have

primary custody of the Child due to her relationship with her siblings is only

one factor and not a controlling factor in the ultimate custody decision, and

was given more weight that the law allows by the trial court and should not

have been applied in Father’s favor.

____________________________________________

19Notably, in the Argument section of her brief, Mother maintains that, as to
the custody factors, Section 5328(a)(1), (4) and (10) should have been
weighed in her favor. Mother’s brief at 11-13. She further indicates that
Sections 5328(a)(6) and (14) were to be discussed separately. Id. at 11.
Moreover, as to the relocation factors, Mother asserts that Section 5337(h)(1),
(3), (5), (6) and (7) should have been weighed in her favor. Id. at 14-16.

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Lastly, with her fourth issue, Mother asserts that the trial court

committed an error in weighing Section 5328(a)(14), the history of drug or

alcohol abuse of a party or member of a party’s household, in Father’s favor.

Mother argues that both parties have a history of drug abuse and that, as

Mother attended a rehabilitation program followed by six months’ residence in

a halfway house and continued to receive the support of her friends and

family, the factor should have been weighed equally. Id.

With regard to the custody and relocation factors, we have stated that

the trial court is required to consider all such factors. J.R.M. v. J.E.A., 33

A.3d 647, 652 (Pa. Super. 2011). Although the court is required to give

“weighted consideration to those factors which affect the safety of the child”

pursuant to 23 Pa.C.S. § 5328(a), we have acknowledged that the amount of

weight a court gives any one factor is almost entirely discretionary. M.J.M.

v. M.L.G., 63 A.3d 331, 339 (Pa. Super. 2013). Critically, as we stated in

M.J.M.:

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. See A.D. v. M.A.B., 989 A.2d 32, 35-36
(Pa. Super. 2010) (“In reviewing a custody order ... 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.”). Our decision here does
not change that.

Id. (emphasis added).

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All of Mother’s challenges, waived an unwaived, go to the trial court’s

conclusions and assessments and asks this Court to re-find facts, re-weigh

evidence and/or re-assess credibility to her view of the evidence. Under the

standard of review applicable in custody matters, we are not permitted to

disturb the trial court’s findings of fact and determinations regarding credibility

and weight of the evidence absent an abuse of discretion. See C.R.F., 45

A.3d at 443; see also E.R., 129 A.3d at 527. As we stated in Ketterer v.

Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (quoting Jackson v. Beck,

858 A.2d 1250, 1254 (Pa. Super. 2004)):

[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.

Moreover, it is not our function to determine whether the trial court reached

the “right” decision but rather “based on the evidence presented, given [sic]

due deference to the trial court’s weight and credibility determinations, the

trial court erred or abused its discretion. . . .” Hanson v. Hanson, 878 A.2d

127, 129 (Pa. Super. 2005).

We find that the trial court did not err or abuse its discretion in its

decision regarding custody or relocation. The trial court cogently analyzed the

custody and relocation factors pursuant to Section 5328(a) and Section

5337(h), and after careful review of the record, we determine that the trial

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court’s findings and determinations are supported by competent evidence in

the record.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/12/2019

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