Ramirez, R. v. Rivera, J.

J-S08007-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

RAUL ARNOLD NAZARIO RAMIREZ : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JESSICA ALAMO RIVERA : No. 1233 MDA 2021

Appeal from the Order Entered August 23, 2021
In the Court of Common Pleas of Northumberland County Civil Division at
No(s): CV-2018-01863

BEFORE: BOWES, J., NICHOLS, J., and McCAFFERY, J.

MEMORANDUM BY BOWES, J.: FILED APRIL 27, 2022

Raul Arnold Nazario Ramirez (“Father”) appeals from the August 23,

2021 custody order granting the request of Jessica Alamo Rivera (“Mother”)

to exercise primary custody of their daughter, J.N.A., and to relocate with

J.N.A. from Northumberland County, Pennsylvania, to Puerto Rico. We affirm.

We begin with a summary of the relevant background. Mother and

Father began their relationship in Puerto Rico where they both were attending

college.1 N.T., 7/29/21, at 7-8, 158. They never married. Id. at 8.

Approximately one and one-half years into their relationship, Father moved to

____________________________________________

1Mother was born in New York, but moved to Puerto Rico when she was eleven
years old. N.T., 7/29/21, at 8. Her mother and other family members still
reside in Puerto Rico. Father obtained his college education in Puerto Rico and
was working as a police officer there when he met Mother. Id. at 139-40. His
parents live in New Jersey, but they also own a home in Puerto Rico, and
Father has other family there. Id. at 41, 159.
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Pennsylvania to work as a correctional officer at a federal prison. Id. at 9,

146. Mother joined Father in Pennsylvania in 2015, bringing along her

daughter from a previous relationship. Id. at 9. J.N.A. was born in September

2016. Id. at 9, 11. After J.N.A.’s birth, she resided with Mother, Father, and

her half-sister in a house Father owned in Northumberland County,

Pennsylvania. Id. at 10, 108.

Mother and Father separated in October 2018.2 Id. at 10-11, 120.

Following their separation, Father filed a custody complaint in the

Northumberland County Court of Common Pleas on October 18, 2018, wherein

he requested that the court award him primary physical custody and shared

legal custody of J.N.A.3 Mother filed a cross-complaint, seeking primary

physical custody and shared legal custody of J.N.A. She averred that she was

J.N.A.’s primary caregiver and she recently had obtained a temporary order

under the Protection from Abuse (“PFA”) Act against Father.

On November 17, 2018, the parties agreed to resolve the PFA matter

by a one-year civil no-contact order. N.T., 7/29/21, at 13. Around the same

time, they resolved their custody dispute through conciliation. By consent

____________________________________________

2Ultimately, Mother moved into a home two blocks away from Father’s home.
Id. at 109-10.

3 Father also requested emergency relief, alleging that Mother planned to take
J.N.A. to Puerto Rico. The court granted Father’s emergency relief by entering
an order prohibiting Mother from taking J.N.A. outside the continental United
States without Father’s consent.

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order entered on January 2, 2019, and later by another consent order entered

on November 18, 2019, Mother and Father agreed to shared legal custody,

primary physical custody with Mother, and partial physical custody with

Father. Father’s custodial periods shifted periodically, but he most recently

exercised physical custody every weekend.

The parties were operating under this custody arrangement when

Mother filed a petition to modify custody on July 31, 2020, seeking a more

specific holiday schedule based upon Father’s alleged refusals to share holiday

time with her. Mother then filed the August 7, 2020 notice of proposed

relocation that is at issue in this appeal. Mother indicated that she wished to

relocate with J.N.A. to Florida, Puerto Rico. Father filed a counter-affidavit

objecting to the proposed relocation and any modification of the existing

custody order.

Following a custody conference, the trial court entered an order on

October 14, 2020, prohibiting Mother from relocating with J.N.A. pending

further order of Court. The October 14, 2020 order also scheduled a hearing

on Mother’s relocation request, and set forth a specific holiday schedule and

directed the parties to follow it.

After a series of continuances, the court conducted a relocation hearing

on July 29, 2021.4 Mother testified that she wished to relocate because she

____________________________________________

4 J.N.A. was almost five years old at the time of the hearing. Neither party
requested that she testify.

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has an extensive support system in Puerto Rico. N.T., 7/29/21, at 35. She

emphasized that she moved to Pennsylvania because Father obtained

employment here, but she lacks support now that they are not together. Id.

at 35, 50, 61, 63. Mother planned to bring J.N.A. and her half-sister to live

with her mother (“Maternal Grandmother”) in Puerto Rico. Id. at 25-27, 35.

In addition to Maternal Grandmother, Mother’s cousins, aunts, uncles, and

friends live in Puerto Rico. Id. at 25. Mother has visited Puerto Rico four to

five times since moving to Pennsylvania, including once with Father and J.N.A,

and two other times with J.N.A. Id. at 25-26. Each time they have stayed

with Maternal Grandmother. Id. at 26. She also noted that Father has

cousins, aunts, and uncles in Puerto Rico. Id. at 41.

Mother asserted that she has been the primary caretaker for J.N.A. since

she was born. Id. at 14. She provides full time care to J.N.A. and J.N.A.’s

half-sister, age thirteen. Id. at 17-23. Mother stressed that her ability to

support herself in Pennsylvania without relying on Father was limited. Id. at

61-63. She described difficulties securing childcare for J.N.A. without a job

and an inability to get a job without childcare. Id. at 49. She noted she had

no family here to assist her or provide backup care. Id. at 61.

Mother did not want to rely on Father because she considered him to be

her abuser. Id. at 61, 63. According to Mother, she separated from Father

because she “felt afraid.” Id. at 11. She also felt like Father engaged in

“economic abuse;” he had “control over everything economically” and would

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not give Mother “a say on anything.” Id. He isolated her from people and

she could not talk to the neighbors or have friends. Id. She briefly worked

as a logistic assistant at a demolition company in 2018. Id. at 14, 48. Father

took care of J.N.A. while Mother was at work, but he often complained that

Mother should be caring for J.N.A. instead of working because she was J.N.A.’s

mother and he provided for the family economically. Id. at 15-16. Eventually,

she had to resign because Father refused to continue taking care of J.N.A. Id.

at 14.

During her testimony, Mother indicated she planned for the next chapter

of their lives in Puerto Rico. She researched schools in Puerto Rico to provide

J.N.A. with a similar experience to her education in Pennsylvania, including

assistance with speech therapy like she receives now. Id. at 30. Mother lined

up a job selling life insurance. Id. at 36-37. To support her case, Mother

presented the testimony of her prospective employer, the principal of the

private school to which she wished to send J.N.A., and Maternal Grandmother.

Regarding Father’s relationship with J.N.A., Mother suggested that

Father could have custody during summers and any other time J.N.A. is off

from school. Id. at 38. According to Mother, there are abundant direct flights

to Puerto Rico out of airports within driving distance, and when she and J.N.A.

flew there in May 2021, it cost $180 per person for a round-trip ticket. Id. at

39-41.

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In Mother’s view, it is J.N.A.’s best interest to move with her to Puerto

Rico because J.N.A. has lived with Mother and her half-sister since she was

born, and Mother has been her primary caretaker and her source of comfort.

Id. at 42. Mother maintained her need for support was such that she planned

to move to Puerto Rico without J.N.A. if the court did not permit J.N.A. to

relocate. Id. at 63.

For his part, Father presented the testimony of his mother (“Paternal

Grandmother”), who testified about her visits with J.N.A. in New Jersey, her

visits to Father’s home, and her plan to stay regularly with Father to assist in

the care of J.N.A.

Father also testified in opposition to Mother’s relocation request,

stressing that the home he owns in Lewisburg was the same home J.N.A. has

lived in since she was born. Id. at 109. The home is a three-minute walk

away from Mother’s house. Id. at 110. According to Father, he and Mother

moved to Pennsylvania because they had dreams of “a better life, a better

future for our kids, a quiet life.” Id. at 123. They wished to escape the “out

of control” crime in Puerto Rico and go somewhere where the job prospects

were better. Id. at 123, 128. Father also appreciated that they were in

driving distance from Paternal Grandmother and his father (“Paternal

Grandfather”), brother, uncles, and cousins, all of whom lived in New Jersey

or New York. Id. at 124. According to Father, his family visited J.N.A. at least

once a month. Id. at 125-26.

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Father testified he was in regular contact with J.N.A.’s teacher at the

Head Start program she attends. Id. at 111-12. Father testified about the

progress J.N.A. has made in the program, and the excellent education he

expected her to receive at the local public school when she started

kindergarten in the fall as compared to the schools in Puerto Rico. Id. at 115.

Father downplayed any notion that he abused Mother or that she was

afraid of him, asserting that while the civil no-contact order was in effect,

Mother spent time at his house daily and even went on multiple overnight

family getaways at hotels with him. Id. at 115-19. He contended the reason

she did not work was simply because his job required long hours; she took

care of J.N.A. and he took care of the bills. Id. at 161.

In addition to the custody relocation dispute, the trial court was tasked

with deciding a petition for contempt Mother filed just weeks before the

hearing. The dispute concerned who would exercise custody over the

Independence Day holiday. According to Mother, she reminded Father that

the governing custody order provided that she would have custody of J.N.A.

during the Independence Day holiday, even though it was a weekend and

normally Father’s custodial period. Id. at 33. However, Father refused to

return J.N.A. so the Mother could exercise custody. In fact, he did not drop

J.N.A. off until 8 p.m. on Monday, July 5, 2021. Id. at 31-34. When asked

by Mother’s attorney why he kept J.N.A. for Independence Day, Father

responded, “Because I believed that it was my time to have [J.N.A.].” Id. at

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138. He acknowledged the prevailing custody order, but maintained that he

had the right to keep J.N.A. in contravention of the agreement because Mother

“used to hold too, for the holidays.” Id.

On August 23, 2021, the trial court filed an order granting Mother’s

relocation request, modifying the custody arrangement to accommodate the

distance between the parties, and granting Mother’s petition for contempt.

Specifically, during the school year, the court awarded Mother primary

physical custody and Father partial physical custody as agreed upon by the

parties. The court provided Father with eight consecutive weeks of custody

during the summer and alternated the custodial time around Christmas

vacation between the parties. It also directed the parties to afford regular

reasonable contact through electronic means.

Father timely filed a notice of appeal and a concise statement of errors

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

trial court complied with Rule 1925(a), filing its opinion on October 27, 2021.

Father presents the following issues for review:

I. Whether the trial court erred in failing to set forth, within
the time required for taking an appeal, its analysis [of] the
16 custody factors set forth in 23 Pa.C.S.A. § 5323(d) and
the 10 relocation factors set forth in 23 Pa.C.S.A. § 5337(h).

II. Whether the trial court erred in permitting Mother to
relocate to Puerto Rico with [J.N.A.] and in granting primary
physical custody to Mother.

Father’s brief at 5 (unnecessary capitalization omitted).

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Upon review of Father’s issues, we bear in mind the following standard

and scope of review.

[T]he appellate court is not bound by the deductions or
inferences made by the trial court from its findings of fact,
nor must the reviewing court accept a finding that has no
competent evidence to support it. . . . However, this broad
scope of review does not vest in the reviewing court the
duty or the privilege of making its own independent
determination. . . . Thus, an appellate court is empowered
to determine whether the trial court’s incontrovertible
factual findings support its factual conclusions, but it may
not interfere with those conclusions unless they are
unreasonable in view of the trial court’s factual findings;
and thus, represent a gross abuse of discretion.

R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa. Super. 2009)
(quoting Bovard v. Baker, 775 A.2d 835, 838 (Pa. Super.
2001)). Moreover,

[O]n issues of credibility and weight of the evidence, we
defer to the findings of the trial [court] who has had the
opportunity to observe the proceedings and demeanor of
the witnesses.

The parties cannot dictate the amount of weight the trial
court places on evidence. Rather, the paramount concern
of the trial court is the best interest of the child. Appellate
interference is unwarranted if the trial court’s consideration
of the best interest of the child was careful and thorough,
and we are unable to find any abuse of discretion.

R.M.G., Jr., supra at 1237 (internal citations omitted). The test
is whether the evidence of record supports the trial court’s
conclusions. Ketterer v. Seifert, 902 A.2d 533, 539 (Pa. Super.
2006).

A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014).

“[I]t is not this Court’s function to determine whether the trial court

reached the ‘right’ decision; rather, we must consider whether, based on the

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evidence presented, given due deference to the trial court’s weight and

credibility determinations, the trial court erred or abused its discretion in

awarding custody to the prevailing party.” E.B. v. D.B., 209 A.3d 451, 468

(Pa.Super. 2019) (citation and some quotation marks omitted). We have

explained,

[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.

D.Q. v. K.K., 241 A.3d 1112, 1117 (Pa.Super. 2020) (quoting Ketterer v.

Seifert, 902 A.2d 533, 540 (Pa.Super. 2006)).

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

§§ 5321-5340. The primary concern in any custody case is the best interests

of the child. The Custody Act sets forth ten relocation factors and sixteen

custody factors that the trial court must consider when addressing whether a

proposed relocation and modification of custody serves the best interests of a

child. See A.M.S. v. M.R.C., 70 A.3d 830, 836 (Pa. Super. 2013) (“The trial

court must consider all ten relocation factors and all sixteen custody factors

when making a decision on relocation that also involves a custody decision.”).

As the party proposing relocation, Mother had the burden of proving that

relocation will serve J.N.A.’s best interest as set forth under § 5337(h), which

provides 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 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).

Additionally, because the relocation decision necessarily impacted the

parties’ existing custody award, the Custody Act required the trial court to

address the following sixteen custody factors.

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.

(7) The well-reasoned preference of the child, based on the
child’s maturity and judgment.

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(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).

In his first issue, Father argues that the trial court’s one paragraph

analysis explaining its decision in its August 23, 2021 order was insufficient to

comply with the Custody Act’s requirement that the court delineate its

reasoning under the statutory factors prior to the time for appeal. Father’s

Brief at 14-16 (citing 23 Pa.C.S. § 5323(d)). Father claims the analysis fell

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short because the court did not relate its observations about the parties’

situation to the custody or relocation factors or indicate in whose favor any

particular factor weighed. Id. He also emphasizes that the analysis did not

mention abuse, yet the trial court made and relied upon findings of abuse

against Father in its subsequent Rule 1925(a) opinion. Id.

Father is correct insofar as the Child Custody Act requires the trial court

to “delineate the reasons for its decision on the record in open court or in a

written opinion or order.” 23 Pa.C.S. § 5323(d). This Court has interpreted

§ 5323(d) as requiring a trial court to explain its analysis of the custody and

relocation factors “at or near the time it issues its decision in a custody

proceeding” and in advance of the appeal deadline. A.M.S., supra at 835.

However, “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.” M.J.M. v.

M.L.G., 63 A.3d 331, 336 (Pa.Super. 2013).

Although the trial court’s Rule 1925(a) opinion explained the court’s

rationale and offered an analysis of each statutory factor regarding relocation

and custody, the court’s earlier order, entered on August 23, provided a more

condensed analysis of the factors. That rationale provided as follows.

After this [c]ourt’s consideration of the custody and
relocation factors attached, it is in the best interest of the child to
remain in the primary custody of Mother and for Mother to be able
to relocate with the child. Mother has always been the primary
caretaker of the child. Both parties have ties to/in Puerto Rico.
The parties met in Puerto Rico and lived there for a time before

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moving to Pennsylvania for Father’s employment. Mother is not
requesting to move in order to keep the child from Father.
Relocation will enhance Mother’s quality of life emotionally and
financially. As Mother is and has been the primary caretaker of
the child, said benefits will also benefit the child. Father’s
relationship with the child will be preserved through regular
electronic contact and periods of partial physical custody on
breaks from school and over the summer.

Trial Court Order, 8/19/21, unnumbered at 2. The trial court attached to the

order the enumerated custody and relocation factors and expressly stated that

it considered the attached factors in its analysis. Id. unnumbered at 2, 3-4.

While this abbreviated analysis did not cite the specific statutory

sections, it highlighted the assessment of the factors that most impacted its

decision to permit Mother to move to Puerto Rico and to modify the parties’

custody arrangement. Father laments the brevity of the court’s analysis, but

he fails to convince us that a remand is warranted or that he forfeited any

issue on appeal based upon the asserted error by the court. Thus, his first

issue fails. Accord M.J.M., supra, at 337 (determining the trial court

“adequately addressed” the statutory factors in its initial analysis and “merely

expanded upon its findings” in its Pa.R.A.P. 1925(a) opinion).

Father’s second issue broadly addresses whether the trial court erred in

permitting Mother to relocate with J.N.A. to Puerto Rico and disrupting their

current custody arrangement. Father dissects the trial court’s analysis factor-

by-factor, arguing, in essence, that Mother’s proposed move is a selfish and

ill-advised endeavor to take a job with speculative income in a crime-ridden

area with inferior education and to live in a smaller house, all in an unfair

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attempt to keep J.N.A. away from him and her paternal family. See Father’s

brief at 16-33. However, this argument did not sway the trial court, and is

contrary to the court’s factual findings, which are grounded in the record.

As this Court has commented, “[a] court should avoid dissociating the

issue of primary custody from the issue of relocation, and should instead

decide the two issues together under a single umbrella of best interests of the

children.” S.S. v. K.F., 189 A.3d 1093, 1098 (Pa.Super. 2018) (citations and

quotation marks omitted). This is particularly apt in this case, as Mother

testified she was “going to have to” move to Puerto Rico without J.N.A. if the

court did not grant her relocation petition. N.T., 7/29/21, at 63. Therefore,

the trial court was in the difficult position of having to decide whether to

separate J.N.A. from one parent for long durations and confront the potential

effects of changing her environment.

With respect to the relocation factors, the court found that § 5337(h)(6)

and (8) favored relocation, and the remaining factors were either neutral or

inapplicable. With respect to the custody factors, the court weighed

§ 5328(a)(1), (2), (3), (4), (6), (9), (13), and (16) in Mother’s favor. The

remaining factors were either neutral or inapplicable. That the court weighed

most of the custody factors in Mother’s favor and found most of the relocation

factors to be neutral suggests that after reviewing all of the factors, the trial

court determined that upsetting J.N.A.’s status quo in terms of location is less

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disruptive than disturbing the status quo in terms of maintaining Mother as

the primary caregiver.

Father rejects the trial court’s rationale and repeatedly tries to paint

Mother as a selfish parent.5 However, it is apparent from the court’s best-

interests analysis that it found Mother’s explanation for wanting to move back

to Puerto Rico to be sincere. See Trial Court Opinion, 10/27/21, at 1, 6-8

Moreover, the court was persuaded that the relocation would enhance

Mother’s quality of life. Id. As Mother testified during the hearing, she moved

to Pennsylvania so that Father could pursue better employment opportunities

than he had in Puerto Rico, and Mother hoped that she and her daughters

could thrive here. In her words, “it didn’t happen that way.” N.T., 7/29/21,

at 48. Instead, according to her testimony, Mother found herself a plane ride

away from her family, financially dependent on Father, and isolated from the

community. Id. at 11, 14.

Unsurprisingly, Father denied subjecting Mother to abuse, but even he

admitted he wanted to prioritize his work and did not support Mother’s

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5 For example, in attempting to undermine the trial court’s conclusion
regarding custody factor nine, that Mother is the parent most equipped to
maintain a loving, stable, consistent and nurturing relationship adequate for
J.N.A.’s emotional needs, Father insinuates that Mother could not possibly care
about J.N.A. because she “was more than willing to relocate to Puerto Rico
without her daughter.” Father’s brief at 24. Father’s exaggeration of Mother’s
testimony and his repeated attempts to paint Mother as an uncaring parent
did not sway the trial court and it certainly does not convince us that the trial
court abused its discretion.

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employment. Id. at 161. The certified record bears out that Mother obtained

a temporary PFA order against Father. Furthermore, Mother indicated that,

even if she can find childcare in Pennsylvania, something that she described

as challenging, she has no one to rely on in an emergency. In Puerto Rico,

however, she has housing, support of her family, childcare, and employment.

As the certified record supports that trial court’s factual findings and

assessment of credibility relating to the sincerity of Mother’s motives and the

potential enhancements to her life, we defer to the court’s determinations.

A.V., supra at 820.

Father quibbles with the trial court’s assessment of the first custody

factor, i.e., Mother is more likely to encourage frequent and continuing

contact, as well as the court’s determination in favor of Mother concerning

factor thirteen, i.e., that Mother was more likely to cooperate. Father’s brief

at 18, 25. However, there is no doubt that the court’s findings are supported

by the certified record. Perhaps most illustrative of this point is the fact that

just three weeks before the hearing, Father knowingly refused a court-ordered

custody transfer simply because he felt he was owed the day for some past

unspecified transgression. N.T., 7/29/21, at 138.

Similarly, although Father admittedly discouraged Mother from working

and relied upon Mother for childcare before and after their separation, Father

insists custody factor three, the performance of parental duties, should be

equal. Father’s brief at 22-23. Once again, the record supports the trial

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court’s finding. Mother testified at length to the care she has provided for

J.N.A. since birth, including feeding her, dressing her, taking her to

appointments, church, and her early childhood educational program, and

assisting her with virtual school during the pandemic. N.T., 7/29/21, at 17,

20, 23. Mother attends to all of J.N.A.’s medical and dental appointments,

compared to Father’s infrequent attendance. Id. at 17 (“[m]aybe once or

twice”). When J.N.A. was one year old, Mother noticed that she was not

“speaking as she should.” Id. at 21. Mother researched options, located a

speech therapy program for J.N.A., and ensured that J.N.A. participated. Id.

at 21-22.

Father, on the other hand, seemed to bolster his participation in caring

for J.N.A. For example, he insisted he always attended J.N.A.’s speech

therapy when he was not working, but on cross-examination he admitted that

when the therapist came to the home, he left the room during the therapy

and was in the “man cave that [he] designed.” Id. at 112-13, 150. Thus,

while it is true that Mother will have to balance caring for J.N.A. and working

in Puerto Rico, we discern no abuse of discretion in the trial court’s

determination that Mother has performed most of the parenting of J.N.A. to

date and is equipped to continue to do so. See M.J.M., supra, at 339

(observing that custody factors three and four address implicitly address the

consideration of “which parent spent more time providing day-to-day care for

a young child”).

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Regarding custody factors two and sixteen, Father argues that the trial

court erred and abused its discretion in finding that he abused Mother.

Father’s brief at 19-22. Father argues even if Mother’s allegations were true,

the evidence of record is insufficient to constitute abuse as defined by the

Child Custody Act. Id. (citing 23 Pa.C.S. § 5322(a) (incorporating definition

of abuse set forth in the Protection from Abuse Act, 23 Pa.C.S. § 6102)).6

____________________________________________

6 The relevant portion of the Protection from Abuse Act provides as follows.

“Abuse.” The occurrence of one or more of the following acts
between family or household members, sexual or intimate
partners or persons who share biological parenthood:

(1) Attempting to cause or intentionally, knowingly or
recklessly causing bodily injury, serious bodily injury, rape,
involuntary deviate sexual intercourse, sexual assault,
statutory sexual assault, aggravated indecent assault,
indecent assault or incest with or without a deadly weapon.

(2) Placing another in reasonable fear of imminent serious
bodily injury.

(3) The infliction of false imprisonment pursuant to 18
Pa.C.S. § 2903 (relating to false imprisonment).

(4) Physically or sexually abusing minor children, including
such terms as defined in Chapter 63 (relating to child
protective services).

(5) Knowingly engaging in a course of conduct or repeatedly
committing acts toward another person, including following
the person, without proper authority, under circumstances
which place the person in reasonable fear of bodily injury.
The definition of this paragraph applies only to proceedings
commenced under this title and is inapplicable to any
(Footnote Continued Next Page)

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The trial court’s specific finding under factor two was that “Mother

testified she is fearful of Father and that Father subjected her to economic

abuse, control, and isolation. The [c]ourt finds Mother credible. [J.N.A.] is

not in danger.” Trial Court Opinion, 10/27/21, at 2. The court referenced

similar findings again in its discussion of the catch-all custody factor sixteen,

referencing Mother’s testimony that Father controlled the money and isolated

her from other people, as well as Mother’s testimony that she was a victim of

abuse by Father. Id. at 5. The court also recognized that Mother spent time

with Father, J.N.A., and her other daughter as a family while the no-contact

order was in effect. Id.

Mother did not testify to the specific incidents that prompted her to

obtain the temporary PFA order, nor did she elaborate upon the specifics of

the abuse that caused her to fear Father.7 Her testimony focused on financial

and psychological control and isolation. See N.T., 7/29/21, at 11, 14, 61-63.

While this dynamic certainly can be abusive, the noted conduct does not fall

____________________________________________

criminal prosecutions commenced under Title 18 (relating to
crimes and offenses).

23 Pa.C.S. § 6102.

7 Mother’s original cross-filed custody complaint averred that she obtained the
temporary PFA order due to an incident where Father pushed her while he was
holding J.N.A. See Mother’s Complaint for Custody, 10/22/18, at ¶ 7. Mother
did not offer testimony regarding this alleged incident at trial, and the PFA
court did not make any findings regarding this allegation because the parties
resolved Mother’s petition through a civil no-contact order without any
admissions of abuse.

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within the statutory definition of abuse, which we outlined in footnote six of

this memorandum.

Nevertheless, particularly given that factor sixteen, “[a]ny other

relevant factor,” gives the court wide latitude as part of its quest to “determine

the best interest of the child by considering all relevant factors,” 23 Pa.C.S.

§ 5328, Father’s argument fails to convince us that the trial court erred or

abused its discretion by mentioning Mother’s concerns as part of its analysis.

Overall, the court did not weigh Mother’s testimony as significant in terms of

the custodial arrangement, as the court did not mention it in the summary of

its rationale in its August 23, 2021 order or the core analysis in its Pa.R.A.P.

1925(a) opinion. See Order, 8/23/21, at 1; Trial Court Opinion, 10/27/21, at

1. Furthermore, the trial court explicitly found J.N.A.’s safety was not in

danger. Trial Court Opinion, 10/27/21, at 2.

Mother’s testimony is mostly relevant to Mother’s motive for relocating,

insomuch as it highlighted her lack of support system here in Pennsylvania.

The dynamics of Mother and Father’s relationship, even if not abusive within

the meaning of the Child Custody Act, have bearing on their ability to co-

parent. Thus, we discern no error or abuse of discretion in the trial court’s

consideration of Mother’s testimony and decline to vacate the order as Father

requests.

Father’s last set of arguments are geared towards critiquing the move

itself. See Father’s brief at 26-33. He again focuses on Mother’s alleged

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selfishness, highlighting his view that the move benefits only Mother. He

laments that J.N.A. will have to share a bedroom with Mother instead of having

her own bedroom at his house. Then, he sets forth rampant speculation that

Mother’s employment will be unsuccessful because it involves selling on

commission. Likewise, despite J.N.A.’s ability to receive speech therapy at

the private school proposed by Mother, Father posits that the school could

deny therapy to J.N.A., leaving the family without due process rights to

protest. Finally, he stresses that the move will disrupt his close relationship

with J.N.A., as well as end her frequent contact with paternal family members

who visit regularly from a neighboring state.

These arguments ignore that in many cases, the detriment to J.N.A. had

a corresponding benefit. For example, leaving Pennsylvania put J.N.A. further

away from her paternal family, but enabled her to be closer to her maternal

family. Father’s most compelling argument is distance; obviously, that

contact will require an airplane ride is not ideal and a significant change from

seeing Father every weekend. Nevertheless, the trial court considered the

distance and provided Father with a long continuous stretch of physical

custody each summer as well as school breaks. Recognizing that the current

arrangement is no longer an option, and that the alternative would require

separating J.N.A. from Mother and her half-sister for most of the year, the

trial court chose to prioritize the child’s relationships with Mother and her half-

sister. We discern no abuse of discretion in this choice.

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Essentially, Father’s arguments ask this Court to disrupt the trial court’s

careful balancing of the factors. This we cannot do. See M.J.M., supra at

339 (“It is within the trial court’s purview as the finder of fact to determine

which factors are the most salient and critical in each particular case.”). Given

that the trial court’s findings have ample support in the record, we will not

interfere with the court’s careful consideration of J.N.A.’s best interests and

balancing of all of the custody and relocation factors as a whole. Thus, we

affirm the trial court’s order granting Mother the ability to relocate with J.N.A.

to Puerto Rico and to exercise primary custody of J.N.A.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/27/2022

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