P.L. v. P.R.

J-S22039-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

P.L. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
P.R. :
:
Appellant : No. 13 MDA 2019

Appeal from the Order Entered November 27, 2018
In the Court of Common Pleas of York County Civil Division at No(s):
2016-FC-001495-03

BEFORE: SHOGAN, J., DUBOW, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.: FILED MAY 29, 2019

P.R. (Father) appeals from the order entered on November 27, 2018,

that granted the petition filed by P.L. (“Mother”) seeking to modify the existing

child custody order entered April 11, 2017, regarding the parties’ son, W.R.

(“Child”), born in April 2015, and seeking permission for Mother to relocate to

Texas with Child. We affirm.

Mother and Father have never married. After Child was born, Mother,

Father and Child resided with Maternal Grandfather. Following the ending of

Mother and Father’s relationship in December 2015, Father moved to Paternal

Grandmother’s home and had an informal shared 50/50 week on/week

off/week schedule, but in December 2015, conflict and neglect issues

immediately arose due to Father’s lack of care during his custody. See R. 50.

____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S22039-19

I.

A.

Mother then filed a complaint for shared legal and primary physical

custody. By order dated April 11, 2017, Mother was granted sole legal custody

and primary physical custody subject to Father’s rights of supervised partial

physical custody. Father was required to identify a responsible adult

supervisor and was granted supervised custody on alternating weekends for

eight hours on Saturday and eight hours on Sunday. He was also granted

time on Christmas day from 12:00 p.m. to 6:00 p.m. and four hours of time

on Child’s birthday each year. In the order, regarding the enumerated

offenses pursuant to 23 Pa.C.S. § 5329, the court indicated in relation to

justifying the supervised custody rights that: “Father has a 2014 conviction

for possession of a controlled substance, and has found to be abusive of

Mother in a 2016 Protection from Abuse Action.” No appeal was taken from

that order.

B.

In the spring of 2018, Mother’s fiancé secured employment in Texas and

she desired to relocate there with Child. To be able to do so, she had to

comply with the provisions of 23 Pa.C.S. § 5337. Under that provision, a party

seeking to relocate does not make an initial filing with the trial court but rather

sends by certified mail to every other party with custody rights a notice of

relocation in accordance with subsection 5337(c). In addition to the other

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information, a subsection 5337(c) notice must contain (1) a proposed revised

custody schedule, and (2) a counter-affidavit in the form set forth in

subsection (d). A party receiving a 5337(c) notice who objects either to the

relocation or to the terms of the proposed revised custody schedule must

complete the counter-affidavit included in the notice and file it with the trial

court within 30 days. When the trial court receives a counter-affidavit

containing an objection either to the relocation or to the proposed revised

custody schedule, pursuant to section 5337(g), it must hold an expedited full

hearing before the relocation occurs unless it finds that exigent circumstances

require approval of the relocation prior to an expedited full hearing.

The trial court then must consider the ten factors listed in subsection

5337(h) setting forth a number of specific factors to insure that all relevant

factors are considered. Because a relocation request normally involves a

change in the custody order, the trial court can modify any existing custody

order if it serves the best interests of the child. 23 Pa.C.S. § 5338. Section

5328(a) in turn sets forth a list of 16 factors that must be considered in a

“best interest of the child” analysis in making any custody determination. 23

Pa.C.S. § 5328(a). When a party files a petition for modification of a custody

order, the trial court must perform a “best interests of the child” analysis

considering all of the section 5328(a) factors.

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C.

As required by 23 Pa. C.S. § 5337, Mother sent Father the Notice of

Relocation on May 31, 2018, but Father did not respond. On September 19,

2018, again pursuant to that provision, Mother filed the Petition for

Modification and Relocation and the trial court scheduled a hearing on

November 20, 2018. Father appeared at that hearing and opposed the

relocation. He contended that he did not receive notice of the proposed

relocation.

At the hearing, the trial court first heard evidence concerning the service

of the relocation letter. Mother presented the testimony of Katharine Marteny,

the paralegal for the law firm representing Mother who prepared the notice of

relocation and mailed it to Father. See R. 7-8. She testified that she sent the

notice via certified and first-class mail on May 31, 2018, to [a certain address,]

York, Pa., given to her by Paternal Grandmother and that she received the

signed certified mail “green card” on June 2, 2018. Also, the first-class mail

was never returned. Paternal Grandmother confirmed at trial that her son

[Father] did, in fact, live at that address at the time in question and that she

had provided Mother with that information. Father later disputed that was his

signature. The trial court elected to go forward with the hearing.

In support of her request, Mother testified that she sought the 2017

custody order because she was concerned with care of Child while he was in

the custody of Father because when he was returned to her, he had matted

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hair, diaper rash and was not clean. She also testified that Father spoke to

her in a threatening manner, and recounted one incident of physical abuse

while they were in Las Vegas when she was pregnant with Child.

She then went on to testify that prior to her request to relocate, Father

had no physical custody rights until he found an approved supervisor and the

supervisor filed an Affidavit of Supervisory Accountability with York County

Court of Common Pleas. See R. 29. From April 2017 until November 20,

2018, Father failed to obtain a supervisor for his custodial time. Father never

sent a card or present to Child and only responded to one of Mother’s emails

regarding the health and welfare of Child. See R. 26. She stated that she

was informed that Father “saw” Child on two occasions during the time of April

2017 until November 2018, but both of those occasions were by “accident”

when Child was in the care of Paternal Grandmother. See R. 75-76. She

testified that Father made no attempt to have contact with Child for the 17

1/2 months following the last custody trial.1 Mother testified that for six to

eight weeks, she wrote weekly email updates, but except for one instance, he

never responded so that she stopped sending them. See R. 41. Mother also

acknowledged that she had not provided Father with any notification of

____________________________________________

1 Paternal Grandmother testified that she was not an approved supervisor for
Father at the time of the accidental visits. In any event, Paternal Grandmother
testified that she was estranged from Father because he was not fulfilling his
obligations to Child but they had somewhat reconciled and she would serve as
a supervisor.

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doctor’s appointments since June 2017 and that she stopped emailing Father

regarding Child at approximately the same time. See R. 41-42.

Mother testified that her fiancé was employed in York County as a car

salesman on commission making approximately $60,000 per year. See R.

38. In his new position in Texas, Mother’s fiancé was employed as a territorial

manager for a tobacco company with a salary of $60,000 per year and with

much better benefits. See R. 39. She indicated that she was not working

while living in York County and was still not working or enrolled in any college

or post-secondary education after moving to Texas. See R. 39. She indicated

that the rent that she and her fiancé were paying in York County was

approximately $1,250 per month, and that the rent at their new residence in

Houston was $1,350 per month. See R. 42.2

Mother stated that she had an informal arrangement with Paternal

Grandmother for her to see Child each week from Thursday afternoons to

Friday afternoons from May 2017 through the hearing in November 2018. See

R. 40-41. She stated that Paternal Grandmother would be an appropriate

supervisor for Father’s visits. See R. 41. She also acknowledged that all of

her family resided in York and that some of her fiancé’s cousins live in Texas.

____________________________________________

2Mother’s fiancé, S.W., Jr., also testified that he took the position in Texas as
a territorial manager for a tobacco company; while at the same salary that he
earned on commission as a car salesman, it had much better benefits - a car,
a phone and tuition aid to pursue a master’s degree as well as a chance for
advancement.

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In opposition, Father testified that he would like to reestablish his

relationship with Child but he would be unable to do so if Child was in Texas

because he does not have the financial resources to pay for round-trip tickets

to Texas on a regular basis throughout the year. He indicated his income in

the last year was approximately $24,000-$30,000. He stated that after the

custody hearing, Mother indicated that she did not want him around her or

Child. As to his inability to secure a supervisor, he stated that he and his

mother were not on speaking terms immediately after the April 2017 order

and his only other viable alternative, his brother, had his own legal issues

which would have precluded him being appointed as a supervisor. See R. 86-

87. Father testified that Mother had no issue with him providing care for Child

when they were living together and for the year after separation when they

shared custody on a 50/50 basis. See R. 92-93. Father submitted to a drug

test shortly prior to the custody trial for amphetamines, cocaine, marijuana,

opiates and PCP which he offered as an exhibit without objection at trial

showing all negative results. See R. 95-96, 154.3 He also stated that the

signature on the “green card was not his signature.” See R. 85.

____________________________________________

3Father presented the testimony of his paramour with whom he resides, M.M.
Id. at 63. M.M. testified that she was an ambulance dispatcher and was
prepared to act as a supervisor on those visits. She also stated that Child
could stay at her one-bedroom apartment.

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It was stipulated that there was no finding of abuse pursuant to the

Protection from Abuse Order, as it was entered by agreement without an

admission of the acts alleged in the petition. See R. 80. Father’s criminal

history was also introduced and showed that he pled guilty to possession of

drug paraphernalia pursuant to 35 P.S. § 780-113(a)(32) on June 16, 2014,

and received probation, all of which predated Child’s birth by ten months. See

R. 81-82, 146-151.

D.

At the conclusion of the hearing, the trial court read its order into the

record, granting the petition for modification and permitting Mother to relocate

with Child to Texas. See R. 106-108. The trial court addressed on the record

its findings in detail as to each of the custody’s best interest factors set forth

in 23 Pa.C.S. § 5328(a)4 and the ten relocation factors set forth in 23 Pa.C.S.

____________________________________________

4Section 5323(d) provides that a trial court “shall address the sixteen [Section
5328(a) custody] factors on the record in open court or in a written opinion
or order before the deadline by which a litigant must file the notice of appeal.”
C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013), appeal denied, 70 A.3d 808
(Pa. 2013). In expressing the reasons for its decision, “there is no required
amount of detail for the trial court’s explanation; all that is required is that
the enumerated factors are considered and that the custody decision is based
on those considerations.” J.M. v. M.L.G., 63 A.3d 331, 336 (Pa. Super.
2013).

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§ 5337(h)5. Id. at 108-118. Its reasoning was later supplemented by an

extensive 1925(a) opinion.

Regarding whether notice had been served on Father as required by 23

Pa.C.S. § 5337(c), the trial court found that Father was not credible in claiming

that he did not receive Mother’s notice of relocation and that Father failed to

timely object to Mother’s relocation with Child within 30 days as required by

23 Pa.C.S. § 5337(d).

Regarding custody, the trial court order was substantially the same as

the April 11, 2017 order except that Paternal Grandmother was approved as

a supervisor as soon as she filed an affidavit of supervisor and that Mother

and Father share the cost of transportation of Child as well as approving

contact by Facetime or the equivalent. See R. 106-108.

On December 21, 2018, Father timely filed his appeal along with a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(ii).6

____________________________________________

5 Section 5337(h) also mandated that the trial court shall consider the ten
relocation factors listed therein, giving weighted consideration to those factors
affecting the safety of the child. Moreover, like section 5323(d), the trial court
should delineate its reasoning at or near the time of its relocation decision.
A.M.S. v. M.R.C., 70 A.3d 830 (Pa. Super. 2013).

6 “In reviewing a custody and relocation 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

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II.

On appeal, while Father lists four issues in his brief, as his brief makes

clear, he is making two basic challenges to the trial court’s decision. His core

challenge is that trial court erred in determining that Mother met her burden

of proof required by 23 Pa.C.S. § 5337 to justify her request for relocation

from Pennsylvania to Texas. He also challenges the trial court’s custody order

by not giving him more extended custody periods rather than alternative

weekends as well as not approving unsupervised time with Child.

A.

Before addressing those issues, we must address Mother’s claim that

the hearing should not have proceeded once the trial court found that Father

was served and he did not timely respond to her notice. 23 Pa. C.S. § 5337

provides in relevant part:

(d) Objection to proposed relocation.—

* * *

(3) If notice of the proposed relocation has been properly
given and no objection to the proposed relocation has been
filed in court, then it shall be presumed that the

____________________________________________

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

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nonrelocating party has consented to the proposed
relocation.

(4) If a party who has been given proper notice does not
file with the court an objection to the relocation within 30
days after receipt of the notice but later petitions the court
for review of the custodial arrangements, the court shall
not accept testimony challenging the relocation.

(e) Confirmation of relocation.—If no objection to the proposed
relocation is filed under subsection (d), the party proposing the
relocation shall file the following with the court prior to the
relocation:

(1) an affidavit stating that the party provided notice to
every individual entitled to notice, the time to file an
objection to the proposed relocation has passed and no
individual entitled to receive notice has filed an objection
to the proposed relocation;

(2) Proof that proper notice was given in the form of a
return receipt with the signature of the addressee and the
full notice that was sent to the addressee.

(3) a petition to confirm the relocation and modify any
existing custody order; and

(4) a proposed order containing the information set forth
in subsection (c)(3).

(g) Hearing.—

(1) Except as set forth in paragraph (3), the court shall
hold an expedited full hearing on the proposed relocation
after a timely objection has been filed and before the
relocation occurs.

(2) Except as set forth in paragraph (3), the court may, on
its own motion, hold an expedited full hearing on the
proposed relocation before the relocation occurs.

Under these provisions, where no timely objection has been filed, the

trial court may approve the proposed relocation and custody order without a

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hearing, but, if it so desires, can order a hearing but should not accept

evidence challenging the proposed relocation. Whether a party who fails to

timely object has standing to appeal a discretionary hearing is an open

question, and because standing is not jurisdictional and no one has raised it

as an issue, we decline to address it here.

Nonetheless, as did the trial court in its Rule 1925(a) opinion, we will

review the issues Father raises on appeal.

B.

Father argues that the trial court erred as a matter of law and abused

its discretion in determining that Mother had met her burden of proof for

relocation with Child to Texas by ignoring the uncontroverted evidence from

the hearing. However, that claim is belied by the extensive findings the trial

court made at the conclusion of the relocation hearing, as well as its Rule

1925(a) opinion, where it extensively and cogently explains the factors and

the reasoning for approving relocation.

In its Rule 1925(a) opinion, the trial court then set forth its analysis of

the relocation factors as follows:

We adopt and incorporate our analysis of the relocation
factors, which we dictated on the record at the conclusion of the
trial, as if fully set forth herein. As to our holding that Mother had
met her burden of proof, there is substantial evidence to support
our conclusion that she had. Further, we were utterly unconvinced
by Father, [sic] that he had any intention whatsoever of building
a loving, stable relationship with the child.

* * *

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With respect to relocation, the [court] must first consider
the nature, quality, extent of involvement and duration of
the child’s relationships with the party proposing to
relocate and with the non-relocating party, siblings, and
other significant persons in the child’s life. It is undisputed
that Father has not seen the child in nearly a year and a
half, except by accident. Again, Mother has a loving,
nurturing, stable relationship with the child. Father has no
relationship with the child. Although Paternal
Grandmother has maintained an important relationship
with the child, this factor weighs heavily in favor of Mother.

Next, the [court] is to consider 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. The child is only three[;] thus[,]
this factor is difficult to weight, other than to say that the
child has known no other parent than Mother, and
heretofore she has been able to meet the child’s needs.
Father presented no evidence why she would be any less
capable in Texas. This weighs toward Mother.

Next, the [c]ourt considers the feasibility of preserving
the relationship between the non-relocating party and the
child through suitable custody arrangements, considering
the logistics and financial circumstances of the parties. The
non-relocating parent has no relationship with the child,
and[,] thus[,] there is no relationship to preserve. This
favors Mother and relocation.

The next relocation factor is the child’s preference. Due
to his being three-years [sic] old, we cannot ask the child
definitively. Thus, it is given no weight.

The [c]ourt must next consider whether there is an
established pattern of conduct by either party to promote
or thwart the relationship of the child and the other party.
Mother has ensured that [P]aternal [G]randmother
continues to play a role in the child’s life, despite her son’s
disinterest, and this factor favors relocation.

Next, the [c]ourt is to consider whether the relocation
will enhance the general quality of life for the party seeking

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the relocation, including, but not limited to, financial or
emotional benefit or educational opportunity. Mother
testified that the desire to relocate was prompted by her
long-time paramour’s more lucrative employment situation
existing in Texas. We found Mother to be credible and
genuine, and[,] thus[,] this factor favors relocation.

Next, the [c]ourt is to consider 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. Mother’s improved financial
situation will spill over into benefits for the child, and this
factor favors relocation.

The reasons and motivation of each party for seeking or
opposing relocation is the [c]ourt’s next consideration. We
found Mother’s testimony that she was seeking a better life
for her family to be completely credible. Father’s
testimony that he wanted to re[-]establish a connection
with his son was completely not credible. Thus[,] this
factor favors relocation.

The next relocation factor is present and past abuse.
While we recognize that abuse was a consideration in the
earlier stages of this custody litigation, as evidenced by the
protection from abuse order, we do not find this to be a
relevant factor, currently.

Factor then allows the court to consider any other
relevant factor; we find that there is no other relevant
factor.

Finally, Father complains that the final order in custody
is confusing and vague. For clarification, Mother has
primary physical custody, subject to Father’s rights of
partial, supervised custody. Father may exercise his
custodial periods on alternating weekends, for eight hours
Saturday and eight hours Sunday. These periods may be
exercised either by Father travelling to Texas, or in the
event that Mother brings the child to Pennsylvania for some
other, unrelated purpose.

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The analysis of the relocation factors that the trial court dictated on the

record at the conclusion of the trial and incorporated into it 1925(a) opinion

included:

The first relocation factor is the nature, extent, involvement,
and duration of the child’s relationship with the mother[,] who is
proposing to relocation and with the father who is remaining in
the York, Pennsylvania area.

This factor is in favor of relocation as [M]other has been
pretty much the sole custodian of this child for at least a year and
a half. We cannot help but notice that [F]ather took this matter
to court and had a full trial on April 11, 2017, then claiming that
he wanted substantial custodial rights of his child, and
immediately thereafter doing nothing to actually pursue and have
any custodial rights with [Child]. It is significant that this father
has seen this child twice since the April 11, 2017 order and both
of those were by accident.

Candidly, one of the reasons why the April 11, 2017 decision
was made was because at that time [F]ather’s testimony was
disingenuous and not credible and the [c]ourt found then that his
efforts to say he wanted to have custodial rights with his son
seemed not genuine and/or poorly motivated. Father’s testimony
today is no improvement on that testimony he gave back then and
we find him equally not credible.

He has all kinds of excuses as to why he did not receive the
relocation notice and counterclaim. While we believe [M]other
properly served that on him, we nevertheless held a full relocation
hearing and are finding the facts in this case based on the
relocation factors.

The second relocation factor is 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. This factor is[,] at the very worst[,] neutral, insofar
as the child is only three years of age. The child knows the mother
and her significant other who is[,] in effect[,] a stepfather to be
his family. He does recognize [P]aternal [G]randmother as a big
part of his life, but she is not a party to this. And [M]other has
made arrangements for this child to see [P]aternal [G]randmother

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substantially. And therefore, there is no detrimental effect on the
child’s physical, educational, and emotional development from this
relocation.

The third factor is the feasibility of preserving the
relationship between the non-relocating party and the child
through suitable custody arrangement. This is a huge factor in
most relocation cases and is also a huge factor in his case. While
[F]ather testified that this relocation will make it difficult for him
to reunify with his son[Child], that is not how this relocation factor
is worded. It is worded the feasibility of preserving the
relationship, implied preserving the existing relationship between
the non-relocating party and the child. There is little or no
relationship between this child and the non-relocating party, his
father.

If [F]ather had done what he was supposed to do back in
[sic] April 11, 2017, and he obtained a supervisor and he saw his
son on alternating weekends, this might be a completely different
case. The bottom line is the feasibility of preserving an almost
non-existent relationship is high. And therefore, this factor favors
relocation. Maybe the fact that this child now lives 1500 miles
away from the father will spur the father onto [sic] actually try to
be a father.

The fourth factor is the child’s preference. The child is four
– I’m sorry, three. Because of his age, we did not interview him.
He’s too young to express a factor [sic]. So that is a non-factor.

The fifth factor is whether there is an established pattern of
conduct of either party in promoting or forging the relationship of
the child and the other party. The father did see this child twice
in the last year and a half by accident through his mother. And
the mother of the child, relocating party in this matter, knew that,
did not bring a contempt proceeding, which she could have since
there was no approved supervisor, and in fact, the mother has
encouraged the paternal grandmother to have a relationship with
this child. And therefore, there is an established pattern of the
mother to actually promote the relationship between the child and
the father. And therefore, this is another factor in favor of
relocation.

Factor Number 6 is whether the relocation will enhance the
general quality of life for the mother. We find that it does. The

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uncontroverted testimony of [M]other and her live-in fiancé is that
his career opportunities are greatly increased by taking this job in
Houston, Texas. And while he makes approximately the same
income, his benefits are significantly better, including a company
car and a company reimbursement for cell phone and other things.
And further, [M]other’s fiancé has greater opportunities for
promotion and more pay increases as a result of the relocation.
Therefore, this is also a factor in favor of relocation.

Factor Number 7 is whether the relocation will enhance the
general quality of life for the child. While that is always a bit
speculative, there is no reason to believe in this case that the
relocation will be anything but enhancing the general quality of
life for the child since his mother and her live-in fiancé are in a
much better place financially and that will, of course, spill over
into being a benefit factor for [Child]. Therefore, we find even this
factor is in favor of relocation.

Factor Number 8, the reasons and motivation of each party
for seeking or opposing the relocation. We find [M]other’s
motivation for seeking the relocation is a very good one. Father
believes she’s just trying to get away from him and/or the York
area. We have heard nothing to support that speculation on
[F]ather’s part. We tend to believe [F]ather’s motivation for
opposing the relocation is either because his mother is actually
the one opposing the relocation and/or the father is just making
life difficult for the mother, which[,] quite frankly[,] he’s got a
history of doing. So this is another factor in favor of relocation.

Factor Number 9 is the present or past abuse committed by
a party or member of [a] party’s household when there is a
continued risk of harm to the child or abused party. While we took
into account[,] back in 2017, the original trial, that [F]ather had
abused [M]other and that there was a PFA order, candidly, we find
at this point there is no real risk of harm to the child or the
mother[,] as that has become fairly old history. Therefore, this is
a non-factor.

Factor 10 is any other factor, and we find no other factor.

See R. 108-113.

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It is obvious from these findings that the trial court analyzed and

weighed each factor in arriving at its decision regarding relocation. Father

claims that the trial court did not consider the cost of travel for him to maintain

contact with Child which we agree would certainly weigh against relocation,7

but, in this case, there was no contact to maintain because Father had

absolutely no involvement with Child in the year-and-a-half since April 2017

preceding the custody hearing in November 2018, with the exception of two

accidental visits at the home of Paternal Grandmother.

Father also contends that the trial court ignored certain evidence when

considering the factors regarding relocation. He asserts that aside from

minimal fringe benefits and increases that Mother’s fiancé would receive from

his new employment in Texas, there was no other readily discernible benefit

to the relocation, and that the trial court failed to consider that the rent in

Texas would be a $100 more per month. However, the trial court found that

Child’s general quality of life will be enhanced by Mother’s fiancé, and, even

though he will make the same income, the benefits are much better and he

has greater opportunities for promotion and more pay increases as a result of

the relocation. The trial court also noted that Mother stated that she would

make efforts to continue the relationship with Paternal Grandmother after the

relocation. In his brief, Father opines that it is also nonsensical and illogical

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7 See S.J.S. v. M.J.S., 76 A.3d 541 (Pa. Super. 2013).

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to allow Mother to sever the tie between Child and Paternal Grandmother

which obviously existed and which could provide a conduit by which Father

could reestablish his relationship with Child. That argument assumes that

Father will continue not to be estranged from his mother—Paternal

Grandmother. In any event, the testimony indicated that Mother made efforts

to continue the relationship with Paternal Grandmother after the relocation.

While Father may complain about the weight the trial court gave to

certain factors than to others, that is a judgment that the trial court has to

make in determining what is in the best interest of Child’s well-being, not what

the Father wants. Accordingly, because there is ample evidence to support

the trial court’s findings, we find that there was not abuse of discretion by the

trial court to enter an order allowing relocation.

C.

While not challenging directly the trial court’s custody findings, Father

contends that the trial court abused its discretion by giving him partial

supervised physical custody only on an alternating weekend basis for eight

hours on a Saturday and eight hours on a Sunday. He contends that given

the distance and cost involved, there should been given longer periods of time

rather than alternative weekends, as well as exercising some unsupervised

rights of contact, or alternatively, to provide for some avenue by which Father

could exercise unsupervised rights of contact in the future. The trial court’s

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reasoning for the custody arrangements and not allowing unsupervised visits

are intertwined.8

At the conclusion of the November 20, 2018 trial, when counsel

questioned whether Father would continue to be required to be supervised in

light of the fact that the court did not find the paraphernalia conviction to be

significant, the court indicated: “He has to have supervision because, number

one, the child may have no idea who he is. Number two, he did not get a

5329 [threat of harm] evaluation. Number three, I don't find him to be

credible. I don't find him to be reliable. As I indicated, he has been found in

contempt once. I just don't think the child is safe until at least there is a 5329

evaluation and/or there is a time where he spends with his child over a period

of time.” See R. 119-120.

In the trial court’s 1925(a) opinion regarding the continuation of

supervision, the court indicated: “Father’s third alleged error attacks the

supervision requirement of the order, as well as the lack of a roadmap for

Father to navigate in order to arrive at unsupervised custody. Simply, there

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8 In his brief, Father cites J.R.M. v. J.E.A., 33 A.3d 647 (Pa. Super. 2011),
for the holding in that case that, in the absence of a determination that the
child would suffer a detrimental impact by having unsupervised visits with the
non-custodial parent, the trial court should have entered an order granting
unsupervised periods of partial custody for the noncustodial parent. Father’s
Brief, at 16. In the present appeal, however, the trial court adequately
explained its determination that Child would suffer a detrimental impact by
having unsupervised custodial time with Father, the noncustodial parent, who
had a history of drug abuse, and with whom Child has virtually no contact.

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is no evidence on the record that awarding Father unsupervised custody is in

the child’s best interest. During the first round of custody proceedings,

Father’s potential drug use was a concern, as was the possibility of abuse.

Thus, a threat of harm evaluation was ordered. To date it has not been

completed.” See 1925(a) Opinion, at 11, Appendix “B”.

Given those findings regarding unsupervised visits, while Father might

desire the order to provide for additional custodial time with Child, the trial

court more than adequately explained its reasons for not doing so and allowing

Mother to relocate with Child. Moreover, the trial court tried to ameliorate

Father’s concerns regarding the reality of partial physical custody when the

parties live 1500 miles apart by allowing Facetime with his Child on a regular

basis as well as see Child in Texas. Also, at the hearing, testimony was

provided that Mother would be in York, Pennsylvania, every three to four

months, and if Father had a supervisor, this would allow Father an opportunity

to see Child as provided in the order. See R. 44-45, 122.

Simply, there is no evidence on the record that awarding Father

unsupervised custody or extended custody is in Child’s best interest and the

trial court more that adequately explained its reasons for so ordering.

Accordingly, because the trial court’s conclusions do not involve an error of

law, and are not unreasonable as shown by the evidence of record, we affirm

the order of the trial court.

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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/29/2019

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