M.W. v. A.R.

J-A19022-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

M.W. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
A.R. :
:
Appellant : No. 22 MDA 2018

Appeal from the Order Entered December 4, 2017
In the Court of Common Pleas of Susquehanna County Civil Division at
No(s): 2017-979

BEFORE: GANTMAN, P.J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY NICHOLS, J.: FILED: NOVEMBER 9, 2018

A.R. (Mother), appeals from the final custody order, which denied

Mother’s petition to relocate, granted M.W. (Father) primary physical custody,

granted Mother partial physical custody, and awarded shared legal custody of

the parties’ minor daughters, V.W., born in July of 2011, and S.W., born in

June of 2015 (collectively, Children). We affirm.

Mother, Father, and Children resided in Thompson, Pennsylvania in a

home owned by Mother until August of 2017.1 In early August of 2017, Mother

applied for a position teaching kindergarten at a private school in Florida and

began to make plans to move to Florida. Mother believed that Father and

Children would follow her to Florida, but that she and Father would live

separately once in Florida.

____________________________________________

1 Mother and Father were not married.
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Mother started her new job and obtained an apartment in Florida in the

middle of August. When she returned to Pennsylvania to retrieve Children,

Father asserted he had no intention of moving to Florida and insisted Children

remain with him in Pennsylvania. Disputes arose as Mother attempted to take

Children back to Florida. The Pennsylvania State Police arrived and told

Mother and Father to work out an agreement. The next day, Mother again

attempted to leave with Children and the police again responded. Mother

testified she and Father got into a physical altercation where Father got in

Mother’s face, Mother pushed Father, and Father grabbed Mother by the throat

before attempting to run into the house with Children. Mother then grabbed

Father and scratched him. Mother and Father were both charged with

harassment as a result of the incident. Mother and Father ultimately agreed

to a trooper’s recommendation that Mother return to Florida with S.W. and

Father remain in Pennsylvania with V.W.

On August 25, 2017, Father filed a complaint for custody, which Mother

answered. On September 1, 2017, Mother issued a notice of proposed

relocation. Father filed a counter-affidavit objecting to relocation on

September 29, 2017. Mother filed a petition for relocation on October 23,

2017, which Father answered.

On November 27, 2017, the trial court held a custody and relocation

hearing at which Father and Mother testified. Mother called a friend, B.D., as

well as a representative of her employer in Florida to testify on her behalf.

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Father called his co-worker, from whom he was renting two rooms at the time

of the hearing.2

On December 4, 2017, the trial court entered findings of fact and an

order denying Mother’s petition to relocate, granting Father primary physical

custody of Children, granting Mother partial physical custody of Children if

Mother remained in Florida,3 and awarding shared legal custody of Children.

Order, 12/4/17, at 1-2.

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

complained of on appeal. This appeal followed.

Mother raises the following questions for our review:

1. Did the [trial] court err by abusing its discretion by failing to
recognize the overwhelming amount of evidence presented in this
case which clearly established that [Father]’s behavior toward
[Mother] during the planning and the preparing to relocate[] to
Florida was deliberately intended to lull [Mother] into a false sense
of [Father]’s acceptance of the move of Children to Florida, clearly
demonstrating his intent to thwart [Mother]’s relationship with
Children by objecting to the relocation only after [Father] fully
committed to the move in question, and shifting the weight of the
evidence in [Mother]’s favor for granting relocation to Florida?

____________________________________________

2 Mother’s home in Pennsylvania went into foreclosure before the hearing.

3 The order provided Mother partial physical custody of Children from the first
Monday after the end of the school year until the final full week prior to the
next school year beginning. Order 12/4/17, at 1-2. Further, the order stated
“Mother shall have additional periods of partial custody on holidays and/or
extended school breaks . . . as the parties may arrange based upon their
financial abilities to pay the transportation costs to and from Florida.” Id. If
Mother resided in Pennsylvania in Children’s school district, however, the order
provided the parties with week on/week off shared physical custody. Id. at
2.

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2. Did the [trial] court err by abusing its discretion by failing to
recognize [Mother] as the primary [caretaker] and, for all intents
and purposes, the exclusive caregiver of both children which
shifted the weight of the evidence in [Mother]’s favor and fully
supported relocation as in Children’s best interest?

3. Did the [trial] court err by abusing its discretion by failing to
recognize that both parties, as custodian of one child at the time
of the hearing, had the burden of proving the appropriateness of
each parent’s relocation of the child not in his or her custody at
that time, which [Father] completely failed to do?

4. Did the [trial] court err by abusing its discretion by failing to
recognize the shift in the burden of proof from [Mother] to
[Father] on the issue of relocation for the minor child V.W. who
was in his custody at the time of the hearing in question?

5. Did the [trial] court err as a matter of law by relying on
information outside of the record, i.e. the alleged status of
[Mother]’s teaching certificate, when neither party presented
evidence that could have been construed as it was by the [c]ourt?

6. Did the [trial] court err by abusing its discretion by failing to
recognize that the weight of the evidence favors retention of
primary physical custody of [C]hildren by [Mother]?

7. Did the [trial] court err by abusing its discretion by failing to
recognize that the weight of the evidence favors relocation of
[C]hildren with [Mother]?

Mother’s Brief at 3-4.

In cases under the Child Custody Act (the Act), 23 Pa.C.S. §§ 5321-

5340, our standard of review 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

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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).

We have stated:

the 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.

Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (citation omitted).

“Although we are given a broad power of review, we are constrained by

an abuse of discretion standard when evaluating the court’s order.” M.A.T.

v. G.S.T., 989 A.2d 11, 18 (Pa. Super. 2010) (en banc) (citations omitted).

“An abuse of discretion is not merely an error of judgment; if, in reaching a

conclusion, the court overrides or misapplies the law, or the judgment

exercised is shown by the record to be either manifestly unreasonable or the

product of partiality, prejudice, bias or ill will, discretion has been abused.”

Bulgarelli v. Bulgarelli, 934 A.2d 107, 111 (Pa. Super. 2007) (citation

omitted).

With any custody case decided under the Act, the paramount concern is

the best interests of the child. See 23 Pa.C.S. § 5328. Section 5328(a) sets

forth the best interest factors that the trial court must consider. See E.D. v.

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M.P., 33 A.3d 73, 80-81, n.2 (Pa. Super. 2011). Trial courts are required to

consider “[a]ll of the factors listed 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).

Section 5328(a) of the Act 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.

(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).

Where a request for relocation of the subject children along with a

parent is involved, the trial court must consider all of the following ten

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

(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:

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(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.

(10) Any other factor affecting the best interest of the child.

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23 Pa.C.S. § 5337(h); see E.D., 33 A.3d 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”

(emphasis in original)).

Further, we have explained:

Section 5323(d) provides that a trial court “shall delineate the
reasons for its decision on the record in open court or in a written
opinion or order.” 23 Pa.C.S.A. § 5323(d). Additionally, “section
5323(d) requires the trial court to set forth its mandatory
assessment of the sixteen [Section 5328 custody] factors prior to
the deadline by which a litigant must file a notice of appeal.” C.B.
v. J.B., 65 A.3d 946, 955 (Pa. Super. 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.” M.J.M. v.
M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013). . . . A court’s
explanation of reasons for its decision, which adequately
addresses the relevant factors, complies with Section 5323(d).
Id.

A.V. v. S.T., 87 A.3d 818, 822-23 (Pa. Super. 2014).

Similarly, with regard to relocation, in A.M.S. v. M.R.C., 70 A.3d 830

(Pa. Super. 2013), we stated:

[W]e conclude here that sections 5323(d) and 5328 require the
trial court to set forth [the reasons for its decision] at or near the
time it issues its decision in a custody proceeding. We have held
that, because the best interests of the child are the paramount
concern of any custody case, the trial court must address the
sixteen best interest factors of section 5328(a) and the ten
relocation factors of section 5337(h). B.K.M. v. J.A.M., 50 A.3d
168, 172-75 (Pa. Super. 2012) (finding the trial court erred in
failing to consider all section 5328(a) and section 5337(h)
factors). Therefore, by logical necessity, today we emphasize that
our holding in C.B. (i.e., that section 5323(d) requires the trial
court to delineate its reasoning at or near the time of its decision)

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extends to cases that involve both custody and relocation
pursuant to section 5337.

A.M.S., 70 A.3d at 835.

“When a custody dispute involves a request by a party to relocate, we

have explained ‘there is no black letter formula that easily resolves relocation

disputes; rather, custody disputes are delicate issues that must be handled

on a case-by-case basis.’” C.M.K. v. K.E.M., 45 A.3d 417, 421 (Pa. Super.

2012) (citation omitted).

Mother first contends the trial court erred in its evaluation of the fifth

relocation factor, that is “[w]hether there is an established pattern of conduct

of either party to promote or thwart the relationship of the child and the other

party.” See 23 Pa.C.S. § 5337(h)(5). Mother asserts that Father, through

“deception and trickery,” led her to believe that Father and Children would

move to Florida after she relocated there. Mother’s Brief at 10-13. Mother

claims that because this conduct occurred “over a period of months,” there

was a pattern of conduct designed to thwart the relationship between Mother

and Children by having Mother move to Florida without them. Id. at 11.

Mother concludes “[i]t is against public policy and the spirit of the relocation

statute to think that one party could trick or deceive the other into thinking

that party consented to the relocation when in fact he did not consent.” Id.

at 12.

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A review of the record reveals the following.4 Mother applied for her job

in Florida on August 3, 2017 and began work August 21, 2017. N.T.,

11/27/17, at 83. Mother testified that Father never told her that he did not

want Mother or Children to move to Florida. Id. at 137. Mother claimed

Father informed her before she left that he would fly to Florida. Id. at 138.

Mother testified that Father only informed her that he would not move to

Florida after she had secured employment as well as an apartment. Id. at

139-40.

Father, on the other hand, testified that Mother came to him in early

August of 2017 and informed him she was moving to Florida. Id. at 17. He

questioned why she would want to move and Mother replied that there were

no jobs and it is too cold in Pennsylvania. Id. Father testified that he

repeatedly told Mother he did not want to move to Florida and did not want

his children to move to Florida, but that Mother’s attitude was that her move

was not negotiable. Id. at 17, 43-44.

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4 We note that the certified record does not contain a transcript of the
November 27, 2017 hearing. However, the transcript of the hearing is
contained in the reproduced record and is cited by both parties. “It is well-
established in this Commonwealth that it is ‘the appellant’s responsibility to
order the transcript required and ascertain its presence in the record prior to
certification for appeal.’” Commonwealth v. O’Black, 897 A.2d 1234, 1238
(Pa. Super. 2006). Nevertheless, because the transcript is contained in the
reproduced record and the accuracy of the transcript has not been disputed,
we will consider it. See Commonwealth v. Brown, 52 A.3d 1139, 1145 n.4
(Pa. 2012).

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According to Father, Mother rented a truck, loaded it, and left, informing

Father she would leave Children with Father for two weeks so Children could

see Father’s parents. Id. at 18. Father testified that he assisted Mother

loading the truck because he did not want a “physical brawl.” Id. at 19. When

Mother left, she did not tell Father her future address or even to what city she

planned to move. Id. Mother then contacted Father for Father to take

Children to Florida. Id. at 21-22. Father refused. Id. at 22.

The trial court concluded that the fifth relocation factor did not weigh in

favor of relocation to Florida. See Trial Ct. Op., 12/4/17, at 12. The court

observed that Mother

contends that Father intentionally deceived her as to his intentions
concerning relocation and that he did so in order to thwart
Mother’s relationship with Children. Conversely, the court noted
that Father asserted that he never affirmatively agreed to any
relocation and that Mother simply assumed that Father supported
the proposed relocation.

Id. at 11.

The trial court recognized some of Father’s conduct could have led

Mother to believe he supported relocation. For example, Father assisted her

in packing up her belongings prior to the move and after Mother settled in

Florida and engaged in ongoing discussions regarding airline tickets. Id.

However, the court noted the testimony also indicated Father generally took

a passive approach to Mother’s relocation to avoid confrontation. Id. at 11-

12. Additionally, the court observed that Father encouraged V.W.’s

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relationship with Mother by having V.W. “Facetime” with Mother almost every

day. Id. at 12.

Although Mother argues Father intentionally deceived her into moving

to Florida, the trial court rejected Mother’s contention based on credibility

determinations. Those determinations are supported by the record.

Accordingly, we are bound to the trial court’s findings. See C.R.F., 45 A.3d

at 443. Furthermore, having reviewed the record as a whole, we cannot

conclude the trial court’s conclusion as to the fifth relocation factor constituted

an abuse of discretion or error of law. See M.A.T. 989 A.2d at 18; Bulgarelli,

934 A.2d at 111. Therefore, Mother’s first issue does not warrant relief.

In Mother’s second issue, she argues the trial court erred by failing to

correctly apply the primary caretaker doctrine, which she asserts requires the

trial court to give positive weight to her role as the primary caregiver of

Children. Mother’s Brief at 13-14. Further, Mother asserts the trial court erred

by concluding that neither the first relocation factor,5 nor the tenth custody

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5 “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.” 23 Pa.C.S.
§ 5337(h)(1).

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factor,6 weigh in her favor as a result of the primary caretaker doctrine. Id.

at 13-14.

Contrary to Mother’s argument based on the primary caretaker doctrine,

however, the law no longer requires the trial court to give emphasis to a

parent’s status as the primary caregiver. See M.J.M., 63 A.3d at 339. In

M.J.M., this Court specifically held that “the primary caretaker doctrine,

insofar as it required positive emphasis on the primary caretaker’s status, is

no longer viable.” Id. This Court reasoned that Section 5328(a) of the Child

Custody Act expressly states that “all relevant factors shall be considered by

the trial court, and the only factors that should be given ‘weighted

consideration’ are factors that ‘affect the safety of the child.’” Id. at 338

(citing 23 Pa.C.S. § 5328(a)). Therefore, we concluded the legislature did not

intend the trial court to give additional consideration to a parent’s role as the

primary caretaker. Id.

The trial court here concluded that custody factor three7 weighed in

Mother’s favor due to her status as the primary caretaker. Trial Ct. Op. at 20.

Moreover, with respect to the first relocation factor, the court determined the

factor did not weigh in favor of relocation. The court reasoned that Mother

____________________________________________

6 “Which party is more likely to attend to the daily physical, emotional,
developmental, educational and special needs of the child.” 23 Pa.C.S.
§ 5328(a)(10).

7“The parental duties performed by each party on behalf of the child.” 23
Pa.C.S. § 5328(a)(3).

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was the primary caretaker of Children, particularly with regard to activities,

medical appointments and daily care. Id. at 6. However, the court noted

Father also shared in the childcare responsibilities, including dropping Children

off for daycare, as well as assisting in the daily care of Children. Id. at 6-7.

The court found that both Mother and Father were active in Children’s lives

and that Mother conceded Father was close with Children and was a good

caregiver. Id. at 7.

Nevertheless, the trial court observed that a relocation to Florida would

limit the time Children spent with their paternal grandparents, who live three

hours away from Father. Id. Ultimately, the court concluded that relocation

would impose a substantial burden on Children’s relationship with Father and

the paternal grandparents under the first relocation factor. Id. at 8.

With regard to the tenth custody factor, the trial court similarly

concluded that both parties were equally able to care for Children’s needs,

observing that Father cared for V.W.’s needs without incident following

Mother’s move to Florida. Id. at 23-24. The court noted Mother likewise

provided adequate care for S.W. Id. at 24. Accordingly, the court concluded

custody factor ten did not favor either party. Id.

Our review reveals adequate support for the trial court’s findings with

respect to the first relocation factor and the tenth custody factor. Father

testified that his role in taking care of V.W. and S.W. included cooking,

changing diapers, helping with homework, and getting Children ready for bed.

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N.T., 11/27/17, at 10-11. Mother testified that she registered Children for

school and took them to activities and medical appointments, helped Children

with homework, and attended school functions and trips. Id. at 120-24.

Mother also testified it was important for Children to maintain a relationship

with their paternal grandparents who live in New York. Id. at 137.

Accordingly, while Mother faults the trial court for failing to determine

that the first relocation factor and the tenth custody factor favored her, the

trial court appropriately determined the amount of weight to give to Mother’s

status as the primary caretaker. The trial court’s findings that neither factor

favors Mother are supported by the record. Therefore, Mother’s second claim

warrants no relief.

We next address Mother’s third and fourth issues together, as both

relate to the burden of proof applicable to this matter. In Mother’s third issue,

she contends the trial court erred in failing to recognize that because S.W.

resided in Florida with Mother, and V.W. resided in Pennsylvania with Father,

each parent had the burden of establishing the appropriateness of relocation

for the child not in their custody. Mother’s Brief at 15. Mother quotes Klos

v. Klos, 934 A.2d 724, 728-29 (Pa. Super. 2007), for the proposition that

“where the trial court is to formulate a primary physical custody order as well

as to decide a petition for relocation, both parents stand on equal footing,

sharing the burden of production and persuasion to demonstrate that the

living situation that they will provide to Children serves Children’s best

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interests.” Id. Accordingly, she argues Mother and Father bore the same

burden of proof. Id.

In Mother’s fourth issue, she contends, without citation to authority, that

the burden of proof should have shifted to Father with respect to V.W., who

was in his custody at the time of the hearing. Mother asserts that “[s]ince

[Mother] moved to Florida, presumably with both children, ordering that V.W.

would live in Pennsylvania without considering the relocation factors and

holding [Father] to his burden of proof was an error of law and an abuse of

discretion.” Id. at 16.

Pursuant to Section 5337(i), the burden of proof when a party seeks to

relocate is as follows:

(i) Burden of proof.—

(1) The party proposing the relocation has the burden of
establishing that the relocation will serve the best interest of
the child as shown under the factors set forth in subsection (h).

(2) Each party has the burden of establishing the integrity of
that party’s motives in either seeking the relocation or seeking
to prevent the relocation.

23 Pa.C.S. § 5337(i).

Further, pursuant to Section 5337(l), a party’s relocation prior to a

hearing does not shift the burden of proof:

(l) Effect of relocation prior to hearing.—If a party relocates with
the child prior to a full expedited hearing, the court shall not confer
any presumption in favor of the relocation.

23 Pa.C.S. § 5337(l).

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This Court has explained Sections 5337(i) and 5337(l) as follows:

Section 5337(l), by its unambiguous language, prohibits a court
from conferring a presumption in favor of a relocation that
occurred prior to a full expedited hearing. Thus, in that situation,
a trial court may not adopt a prima facie inference that the
relocation is necessarily in the child’s best interest, and it may not
as a result, require the party opposing relocation to bear the
burden of rebutting such an inference.

This plain reading of section 5337(l) is supported by 23 Pa.C.S. §
5337(i), a neighboring subsection concerning burden of proof.
Section 5337(i) establishes that the party proposing relocation
shall bear the burden of establishing that the relocation will serve
the best interest of the child or children. Given that context, we
read section 5337(l) as preserving the allocation of burdens set
forth in section 5337(i), even in the presence of an existing
relocation.

In sum, the trial court must apply the same consideration of the
best interests of the child, and impose the same allocation of
burdens, even where a relocation occurs prior to a full expedited
hearing.

B.K.M., 50 A.3d at 175.

Here, V.W. and S.W. resided with Mother and Father in Mother’s home

in Pennsylvania from the time of their births until August of 2017. N.T.,

11/27/2017, at 4-5. Mother moved to Florida in August of 2017. Father

informed Mother that he and Children would not move to Florida sometime

between August 21, 2017 and August 28, 2017. Id. at 173-74. Thereafter,

Mother returned to Pennsylvania to retrieve Children and a fight ensued

between Mother and Father, at which time the police were called. Id. at 151-

52. The responding Pennsylvania State Troopers told Mother and Father that

they had to compromise, and the only compromise Mother and Father could

come up with was for Mother to take S.W. to Florida with her. Id. at 152-53.

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Within two weeks of Mother’s move to Florida, Father filed his complaint for

custody, and Mother issued her notice of proposed relocation.

With respect to relocation, the trial court determined that because

“Mother is seeking the proposed relocation, Mother bears the burden of

demonstrating by a preponderance of the evidence that the proposed

relocation to Florida is in the best interests of Children.” Trial Ct. Op. at 5-6.

Pursuant to Sections 5337(i) and 5337(l), the trial court correctly determined

Mother, as the party seeking to relocate, bore the burden of establishing the

relocation would serve the best interests of both children. See B.K.M., 50

A.3d at 175. Accordingly, because the trial court did not err in its

determination, Mother’s third and fourth issues fail.

In her fifth issue, Mother contends that the trial court improperly

conducted its own internet research regarding her employment in Florida.

Mother’s Brief at 16. Mother claims that the court compounded this error by

looking at the wrong website. Id. at 17. Mother asserts the independent

investigation was “improper and may have caused the lower court to

unjustifiably question [Mother’s] veracity, which could have affected the lower

court’s exercise of discretion in the case or led to a bias against [Mother] that

was not warranted.” Id.

This Court has held “[a] trial court may not consider evidence outside of

the record in making its determination. Nor may this [C]ourt uphold a trial

court’s order on the basis of off-the-record facts.” Ney v. Ney, 917 A.2d 863,

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866 (Pa. Super. 2007) (citations and quotation marks omitted); see also M.P.

v. M.P., 54 A.3d 950, 954 (Pa. Super. 2012) (reiterating that a trial court may

not consider evidence outside the record in making its decision). This

prohibition stems from due process concerns. “The right of a litigant to in-

court presentation of evidence is essential to due process: ‘In almost every

setting where important decisions turn on questions of fact, due process

requires an opportunity to confront and cross-examine adverse witnesses.’”

Wood v. Tucker, 332 A.2d 191, 192 (Pa. 1974) (citing Goldberg v. Kelly,

397 U.S. 254, 269 (1970)).

Here, Mother testified that she obtained a required certificate to teach

kindergarten in Florida. The trial court, however, in ruling on this case

accessed a website for Mother’s school in Florida and a website for the Florida

Department of Education. Trial Ct. Op. at 2. Based on this independent

internet research, the court noted that it did not appear that any certification

was necessary for Mother’s job and that the Florida Department of Education

had no record of Mother obtaining a teaching certification. Id.

Additionally, the trial court referenced Mother’s purported lack of

certification in the context of its analysis of the sixth relocation factor.8 Id. at

13, n. 9. The court, however, also concluded that the economic benefits of

____________________________________________

8“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.” 23 Pa.C.S. § 5337(h)(6).

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moving to Florida were limited or non-existent based on a myriad of

appropriate factors. Id. at 12-14.

For example, the trial court observed Mother’s prior job in Pennsylvania

at the Blue Ridge School District paid her $10.00 an hour and allowed her to

participate in a pension plan before she obtained her bachelor’s degree. Id.

at 13 & n.2. However, the court emphasized that Mother made no effort to

seek employment in Pennsylvania after obtaining her bachelor’s degree. Id.

at 13-14. The court also recognized that Mother increased her wages by $2.00

an hour and obtained benefits at her new position in Florida. Id. The court

also noted that Mother lived in a one-bedroom apartment in Florida for

essentially the same monthly cost as Mother’s entire home in Pennsylvania.

Id. at 14.

Accordingly, we agree that the trial court’s independent research was

improper. See Wood, 332 A.2d at 192. However, in light of the trial court’s

analysis of the sixth relocation factor, we conclude that this error was

harmless. See Moorman v. Tingle, 467 A.2d 359, 363 (Pa. Super. 1983)

(finding that error in the introduction and use a letter from two out-of-state

social workers was reversible error where the conclusion reached by the trial

court was “supportable even without resort to the correspondence”). We

further discern no basis in the record to conclude that the court’s independent

research tainted the remainder of its findings of fact or credibility

determination under the circumstances of this case. Therefore, we decline to

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conclude that the trial court’s independent research constituted reversible

error. See id.

Mother’s sixth and seventh issues raise a challenge to the weight of the

evidence with regard to the trial court’s analysis of the custody and relocation

factors. With respect to both the relocation and custody factors, Mother’s brief

analyzes each factor and argues why Mother agrees or disagrees with the trial

court’s analysis of each factor. Because Mother’s arguments regarding both

issues are similar, we address them together.

With regard to the custody factors, Mother agrees with the trial court’s

conclusion that fifth, seventh, fourteenth, and fifteenth factors either do not

apply or do not weigh in favor of either party. Mother’s Brief, at 23-24, 27.

Mother further agrees with the trial court’s conclusion that factors three,

twelve, and thirteen weigh in her favor. Id. at 22, 27. Mother, however,

contends the trial court should have concluded factors one, two, four, six,

eight, nine, ten, eleven, and sixteen favored her. Id. at 19-28.

With respect to the relocation factors, Mother claims “it is obvious that

the factors for relocation fall heavily in favor of [Mother].” Id. at 28-29.

Mother contends the trial court erred by concluding relocation factors one,

two, three, five, six, seven,9 nine, and ten did not weigh in favor of relocation.

Id. at 29-37. Mother further claims the trial court failed to consider factor

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9 The trial court determined this factor slightly favored Mother.

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eight and mis-numbered factors nine and ten. Id. at 34. Mother generally

contends that the trial court should have weighed the custody and relocation

factors in her favor for five reasons: (1) Father’s “trickery and deceit”

regarding Mother’s move to Florida; (2) Mother’s status as the primary

caretaker; (3) communication issues involving Mother, Father, and Children;

(4) the benefits of Mother’s move to Florida; and (5) allegations of domestic

violence. Id. at 19-37.

Here, the trial court thoroughly reviewed all of the applicable custody

and relocation factors in its comprehensive opinion.10 See Trial Ct. Op., at 6-

26. With respect to relocation, the trial court concluded:

Mother has failed to meet her burden of proof to demonstrate that
the proposed relocation promotes the best interest of Children. As
to the [ten] statutory factors, Mother failed to demonstrate that
[nine] of those factors weighed in favor of relocation. As to the
single factor upon which Mother sustained her burden of proof, it
only weighed slightly in favor of relocation. For these reasons,
Mother has overwhelmingly failed to meet her burden of proof of
demonstrating that the proposed relocation would be in the best
interests of Children.

Id. at 17.

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10 The trial court addressed relocation factor eight, “The reasons and
motivation of each party for seeking or opposing the relocation,” 23 Pa.C.S. §
5337(h)(8), in a footnote, finding each party acted in good faith as to their
respective positions. Trial Ct. Op. at 17. However, in making this
determination, the trial court referenced 23 Pa.C.S. § 5337(i)(2) (“Each party
has the burden of establishing the integrity of that party’s motives in either
seeking the relocation or seeking to prevent the relocation”).

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Similarly, with regard to the custody factors, the court concluded “they

weigh slightly in favor of Father in that [four] of those factors weighed in favor

of Father while only [three] weighed in favor of Mother. Nine of the factors

were either neutral between the parties or had no applicability to this case.”

Id. at 26.

As noted above, the trial court rejected Mother’s argument that Father

“tricked” her into moving to Florida, observed that while Mother was the

primary caretaker Father appropriately cared for Children, and noted that

Father made V.W. available for “Facetime” regularly. Additionally, the trial

court determined the alleged incident of domestic violence, in which both

Mother and Father were charged with harassment, could not form a basis for

a finding of abuse by either party. Id. at 6-8, 11-12, 19. Further, the court

noted that the economic benefits of Mother’s move were minimal, but credited

Mother’s testimony that Children would be able to interact with individuals

with similar racial backgrounds, and that Florida would allow Children more

cultural and educational opportunities. Id. at 10-16.

Contrary to Mother’s arguments, the trial court’s findings and

conclusions are supported by the record. As discussed in greater detail above,

the trial court’s conclusion that Father did not trick or deceive Mother into

moving to Florida is supported by the evidence. Further, the trial court

appropriately weighed Mother’s and Father’s care of Children. Additionally,

while Mother claims Father does not promote her relationship with Children,

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Mother acknowledged that she spoke with V.W. almost every day while V.W.

was in Father’s custody. N.T., 11/27/17, at 142.

With regard to Mother’s allegations of domestic violence, the record

reveals that the alleged incident of domestic violence occurred in late August

of 2017, during the instant dispute over the custody and relocation of Children.

Specifically, when Mother attempted to take Children to Florida, Mother

testified she and Father got into a physical altercation. According to Mother,

Father got in Mother’s face, Mother pushed Father, and Father grabbed Mother

by the throat before attempting to run into the house with Children. Id. at

151. Mother then grabbed Father and scratched him. Id. Mother and Father

were both charged with harassment as a result of the incident. Id. at 152.

With respect to the benefits of Mother’s move, prior to moving to Florida,

Mother testified Mother worked as a paraprofessional in the Blue Ridge School

District in Pennsylvania. The position was only for the school year. Id. at

115. Mother earned $10.00 an hour with no benefits, although she did

participate in the school district’s pension plan. Id. at 116, 164-165. Mother

could have returned to her prior position at the start of the new school year

and would have earned $10.50 per hour. Id. at 159-160. Mother’s new

position as a kindergarten co-teacher at a private school in Florida pays

$12.00 per hour and includes benefits, as well as free tuition for her children.

Id. at 132.

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Therefore, to the extent Mother challenges the weight attributed to any

factor by the trial court, we find no abuse of discretion. The weight that a trial

court gives to any one factor is within its discretion. See M.J.M., 63 A.3d at

339. In the present case, the trial court analyzed and addressed each factor

under Section 5328(a) and Section 5337(h). Moreover, our review of Mother’s

arguments, the trial court’s rulings, and the record as a whole, reveals that

the trial court’s findings and determinations on the appropriate balance of the

custody factors set forth in Section 5328(a) and the relocation factors set forth

in Section 5337(h) are supported by competent evidence in the record.

Therefore, we will not disturb them. See C.R.F., 45 A.3d at 443; see also

E.R., 129 A.3d at 527.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/9/2018

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