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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
M.Y., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
B.S., :
:
Appellant : No. 774 WDA 2018
Appeal from the Order April 26, 2018
In the Court of Common Pleas of Butler County Domestic Relations at
No(s): 17-90269-C
BEFORE: BOWES, J., SHOGAN, J., and STABILE, J.
DISSENTING MEMORANDUM BY SHOGAN, J.: FILED APRIL 9, 2019
I respectfully dissent. After careful review, I am constrained to disagree
with the Majority’s conclusion that the trial court’s analysis of the best-interest
factors enumerated in 23 Pa.C.S. § 5328(a) subsumed all of the relevant
relocation factors set forth in 23 Pa.C.S. § 5337(h) in this case. Instead, I
conclude that the trial court’s analysis of the relevant factors was insufficient.
I similarly conclude that the trial court failed to adequately consider
Dr. Chambers’s report and testimony. Accordingly, I would vacate the order
and remand.
The primary concern in a custody case is the best interests of the child.
M.J.N. v. J.K., 169 A.3d 108, 112 (Pa. Super. 2017). The best-interests
standard is decided on a case-by-case basis, and it requires consideration of
all factors that legitimately have an effect upon the child’s physical,
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intellectual, moral, and spiritual well-being. Id. (citation omitted). The
specific factors that a trial court must consider are listed at 23 Pa.C.S.
§5328(a)(1)-(16), as follows:
(a) Factors.--In ordering any form of custody, the court shall
determine the best interest of the child by considering all relevant
factors, giving weighted consideration to those factors which
affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and
another party.
(2) The present and past abuse committed by a party
or member of the party’s household, whether there is
a continued risk of harm to the child or an abused
party and which party can better provide adequate
physical safeguards and supervision of the child.
(2.1) The information set forth in section 5329.1(a)
(relating to consideration of child abuse and
involvement with protective services).
(3) The parental duties performed by each party on
behalf of the child.
(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.
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(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).
Father argues that the trial court erred in failing to consider Dr. Bruce
Chambers’s expert opinion that Child remain with Father in Butler County in
order to maintain stability in Child’s life. Additionally, Father avers that the
trial court erred in ignoring the relocation factors in 23 Pa.C.S. § 5337(h).
Father’s Brief at 7-10.
The relocation factors set forth in 23 Pa.C.S. § 5337(h) provide as
follows:
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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
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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).
It is well settled that the trial court was obligated to consider the
testimony of the expert, although it was not obligated to delegate to the expert
the responsibility of making a decision for the court. Rinehimer v.
Rinehimer, 485 A.2d 1166, 1169 (Pa. Super. 1984) (citations omitted). In
the case at bar, however, there is no evidence that the trial court gave any
consideration to Dr. Chambers’s conclusion that Child should remain with
Father in Butler County to maintain stability in the child’s life.
Furthermore, I recognize that the general provisions regarding
relocation set forth in 23 Pa.C.S. § 53371 do not apply, where, as here, neither
party is relocating. D.K. v. S.P.K., 102 A.3d 467, 472 (Pa. Super. 2014).
However, that does not equate to the conclusion that a trial court cannot or
should not consider the relocation factors of Section 5337(h) in a case where
a request for modification of custody involves the change of residence of a
child to a significantly distant location. Id. at 474. Rather, in a custody case
involving the relocation of a child, “the trial court shall consider the relevant
____________________________________________
1 In addition to the relocation factors relevant to the children’s best interests
in 23 Pa.C.S. § 5337(h), the other subsections of Section 5337 contain strict
requirements such as notice, objections, affidavits, counter affidavits, and a
hearing. 23 Pa.C.S. § 5337(b)-(g).
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factors set forth in section 5337(h) insofar as they impact the final
determination of the best interests of the children.” Id. at 468.
As noted above, Child was in first grade in the Seneca Valley School
District in Cranberry Township, Butler County, when she resided with Father.
Dr. Chambers presented uncontradicted testimony that “continuity with the
school was a stress factor that I felt we had to throw that in the mix. Could
this child adjust, probably so. But again, in situations like this, changes can
be stressful for children.” N.T., 3/1/18, at 13. Furthermore, the trial court
noted that Dr. Chambers concluded “There was not enough evidence in this
evaluation to suggest that uprooting [Child] from her current school would be
advantageous in any way. She has done well academically, is on track
developmentally and has a number of friends.” Trial Court Opinion, 4/26/18,
at unnumbered 2.
Despite the trial court’s recognition of these findings, it does not appear
that the trial court evaluated the school situation and the effect changing
schools would have on Child. Thus, it appears that factors two and seven of
the relocation factors, 23 Pa.C.S. § 5337(h)(2) and (h)(7), were not subsumed
by the best-interest factors in the trial court’s analysis.
I thus conclude that the trial court’s analysis was lacking. There was no
indication that the trial court considered the testimony or report of the expert
witness, Dr. Chambers. Moreover, the trial court failed to consider the
relevant relocation factors set forth in Section 5337(h) or explain why those
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factors were not considered. For these reasons, I would vacate the order
awarding custody to Mother and remand this matter to the trial court to
consider Mother’s complaint for custody in light of the factors in Section
5328(a), Section 5337(h), and the expert’s report and testimony from the
hearing.
Accordingly, I respectfully dissent.
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