J-S35030-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
C.G. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
K.N. :
:
Appellant :
:
: No. 215 WDA 2017
Appeal from the Order Dated January 3, 2017
In the Court of Common Pleas of Erie County
Civil Division at No(s): 10901-2016
BEFORE: LAZARUS, RANSOM, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY RANSOM, J.: FILED JULY 26, 2017
K.N. (“Mother”) appeals the order dated and entered January 3, 2017,
denying her Complaint for Modification of Custody concerning her two male
children with C.G. (“Father”): A.G., born in October of 2002, and R.G., born
in May of 2005, (collectively, the “Children”), and finding it in the best
interest of the Children to continue in effect the Alaskan Parenting
Agreement signed April 4, 2007, and the Custody Consent Agreement filed
June 7, 2016, as amended in the trial court’s January 3, 2017 order to
provide Mother with additional partial physical custody of the Children at her
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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home in Alaska during their summer vacation, increasing her custodial time
to eight weeks.1 We affirm.
The trial court set forth the factual background and procedural history
of the appeal as follows.
On October 18, 2016, [M]other filed a Complaint for
Modification of Custody Order seeking to relocate the children to
Alaska.1 This matter was scheduled for a custody trial. At the
December 13, 2016, de novo hearing, the [c]ourt received
testimony from [M]other, [F]ather, [M]other’s husband,
[P]aternal [G]randfather, the [C]hildren’s scoutmaster[, . . .]
[their] pastor, [F]ather’s paramour, and spoke with the
[C]hildren in chambers.
DISCUSSION
Mother seeks an award of relocation. Mother resides in
Valdez, Alaska with her husband and twenty (20)[-]year[-]old
daughter. Mother is employed full-time during the week.
Maternal [A]unt and [M]other’s husband are available to care for
[the] [C]hildren when [M]other is working. Mother’s
neighborhood is a safe residential community within walking
distance of downtown Valdez. The [C]hildren have friends in
[M]other’s neighborhood. Activities such as wrestling,
basketball, football, and Boy Scouts are available through the
school and the community. When in [M]other’s custody, the
[C]hildren participate in outdoor activities. Mother would ensure
the [C]hildren attend church. A family clinic is located nearby to
meet the [C]hildren’s medical needs.
When in [M]other’s custody[,] the [C]hildren perform
chores and complete their summer school work. Mother’s school
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1
Although Mother used the term complaint, her request was actually a
petition for modification of the existing custody order to allow her primary
physical custody of the Children at her home in Alaska during the school
year, which would require the Children to relocate to Alaska. The trial court,
thus, treated the modification petition as also seeking relocation of the
Children without Mother, as she already resides in Alaska.
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district is small and highly[-]rated with many sports and
academic opportunities. Mother and [the] [C]hildren see each
other during the summer school vacation, every other winter
break, and during [M]other’s trips to Erie County, PA. Mother
pays for the [C]hildren’s transportation to Alaska and proposes
[F]ather pay for transportation to Erie County if the [C]hildren
relocate to Alaska. In April 2016, [M]other filed a PFA [Petition
for Protection From Abuse] on behalf of the [C]hildren against
[F]ather asserting [F]ather physically disciplined the [C]hildren.
The final PFA was denied by Judge Robert Sambroak on April 5,
2016.
Mother disciplines [the] [C]hildren by putting them in a
timeout, sending them to their rooms, and taking away their
electronics. Mother wants [the] [C]hildren to have a relationship
with [F]ather. The [C]hildren keep [M]other informed about
their progress in school. Mother and [F]ather have difficulty
communicating. Mother asserts the [C]hildren have expressed a
desire to relocate to Alaska, [F]ather has had primary custody
for nine years, and there is no reason the [C]hildren cannot
reside primarily with [M]other.
Father and [the] [C]hildren have resided in Erie County
since 2007 by consent of the parties. Father is employed full-
time Monday through Friday. [The] [C]hildren have their own
bedrooms in [F]ather’s home and are comfortable there.
Father’s residence is located in a rural area where the [C]hildren
can ride their bikes. Father has breakfast with the [C]hildren
before school and the [C]hildren get off the school bus at
[P]aternal [G]randparents’ residence at 3:00 p.m. Paternal
[G]randparents assist with homework. Father also reviews and
discusses homework with the [C]hildren. Paternal [A]unt and
Uncle and [G]reat[-][A]unt are also available to assist with
childcare. Father has some extended family in Alaska.
The [C]hildren attend the Wattsburg Area School District,
located approximately two and one-half (2½) miles from
[F]ather’s residence. Father acknowledges [A.G.] has struggled
with completing school work while [R.G.] has always done well in
school. [A.G.] is working on improving his school performance.
Father is in contact with the [C]hildren’s teachers. Father denies
any disciplinary concerns regarding the [C]hildren. Father
admits [A.G.] has been suspended from school twice, including
once last year. The [C]hildren have friends at school whom [sic]
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they occasionally see outside of school. [R.G.] participates in
basketball and [A.G.] participates in wrestling and has signed up
for track and field. The [C]hildren participate in Boy Scouts
where they both hold leadership positions. The [C]hildren play
flag football through the YMCA, go skiing, camping, take road
trips, and attend church regularly. Father’s paramour has
accompanied [F]ather and [the] [C]hildren on road trips. Mother
and [the] [C]hildren speak regularly but do not use social media.
Mother consistently sees the [C]hildren approximately ten to
twelve weeks each year. Father does not prevent children from
contacting [M]other. Father and [M]other communicate through
text message and email.
Father does not believe relocation is in the [C]hildren’s
best interests. Valdez, Alaska is a small, isolated community.
Father wants the Children to have a relationship with [M]other
and to keep the same custody schedule. Father acknowledges
using physical discipline as a last resort and does utilize other
forms of punishment. The [C]hildren have chores and take care
of family pets. Father admits to disparaging [M]other in front of
the [C]hildren but denies alienating the [C]hildren from
[M]other. The [C]hildren’s healthcare provider, dentist,
orthodontist, and family counselor, whom [F]ather and
[C]hildren see every three weeks, are located nearby. Father
acknowledges the [C]hildren are comfortable in Alaska and many
activities are available there.
[A.G.] is fourteen (14) years old, attends eighth grade at
Seneca High School, and expressed a desire to relocate to
Alaska. [A.G.] requests to reside primarily with [M]other
because he has resided with [F]ather for nine (9) years. [A.G.]
does not always get along with [F]ather but their relationship is
improving. Father speaks disparagingly about [M]other in front
of him. Father has not physically punished [A.G.] in the past
year. Father disciplines [A.G.] by taking away his electronics.
[A.G.] participates in sports such as wrestling and flag football.
[A.G.] acknowledges struggling in school but his school
performance is improving. [A.G.] has friends nearby. [A.G.]
enjoys science and writing. [A.G.] participates in activities with
[F]ather such as snowmobiling, camping, hunting, and four-
wheeling.
[R.G.] is eleven (11) years old, attends sixth grade at
Wattsburg Area Middle School, and expressed a desire to reside
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primarily with [M]other. [R.G.] enjoys gym class, has friends at
school, and earns good grades. [R.G.] participates in basketball
through school and football through the YMCA. [R.G.] enjoys
four-wheeling. Father does not physically punish [R.G.]. [R.G.]
enjoys the time he spends with [M]other. When in [M]other’s
[c]ustody[,] [R.G.] rides dirt bikes and goes skate boarding and
camping. [R.G.] gets along well with [M]other although they
sometimes yell at each other. [R.G.] gets along with [M]other’s
husband and [with his] twenty (20)[-]year[-]old half-sister.
Maternal [A]unt and [his] two (2)[-]year[-]old cousin, with
whom he has a positive relationship, also reside in Valdez,
Alaska. [R.G.] is not concerned about changing schools or with
not seeing his friends who reside in Erie County. [R.G.]
expressed a preference to spend [the] summer in Erie County.
The [C]hildren were both well-spoken and presented as
sufficiently mature for their ages. The [C]hildren have their own
bedrooms and family pets at each parents’ residence. The
[C]hildren expressed a preference to reside together and to
continue participating in outdoor activities. The [C]hildren have
a positive sibling relationship.
Mother’s husband is employed full-time, has three adult
children, and has good relationships with [A.G.] and [R.G.].
Mother’s husband and the [C]hildren perform farm work together
and ride motorbikes and four-wheelers. Mother’s husband
expects the [C]hildren to be respectful, to perform chores, and
to clean their rooms. The [C]hildren receive an allowance.
Mother’s husband acknowledges the [C]hildren have difficulty
adjusting to the different households. Mother disciplines the
[C]hildren by discussing their behavior with them and taking
away privileges. The [C]hildren have requested to relocate to
Alaska. Mother’s husband states their home is supportive[,] and
he and [M]other will provide for the [C]hildren’s needs. Paternal
[G]randfather sees the [C]hildren every day after school and on
days when the [C]hildren do not have school. Father picks up
the [C]hildren from [P]aternal [G]randparents' home at 5:45
p.m. At [P]aternal [G]randparents' home[,] the [C]hildren play,
eat snacks, do homework, and help around the house. [The]
Children eat dinner at [P]aternal [G]randparents’ residence on
Tuesdays before Boy Scouts. [The] Children attend church with
paternal grandparents and father. Paternal [G]randparents
attend the [C]hildren's extracurricular events and take the
[C]hildren hunting and shopping. Paternal [G]randparents'
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extended family resides nearby and gets along with the
[C]hildren.
The [C]hildren’s scoutmaster testified [F]ather is an
assistant scoutmaster and the [C]hildren both hold leadership
positions. The [C]hildren are involved in many activities; they
get along with the other [B]oy [S]couts, and enjoy their
participation. The [C]hildren’s pastor testified [F]ather and the
[C]hildren are active in their church and the [C]hildren appear
happy to attend church with [F]ather. Father’s paramour
testified she and [F]ather attend the [C]hildren’s activities and
go on family trips. Father’s paramour is comfortable around the
[C]hildren and will not interfere with the [C]hildren’s relationship
with their mother.
___________________________________________________
1
Pursuant to the Alaskan Parenting Agreement signed April 4,
2007, and the Custody Consent Agreement filed June 7, 2016,
[the] parents share legal custody. Father has primary custody
and [M]other has periods of partial custody for six (6) weeks in
the summer and alternating school breaks.
Trial Court Opinion, 1/3/17, at 1-6 (footnote in original).
On January 3, 2017, the trial court entered the order denying Mother’s
petition, finding it in the best interest of the Children to continue in effect
the Alaskan Parenting Agreement signed April 4, 2007, and the Custody
Consent Agreement filed June 7, 2016, as amended in the trial court’s
January 3, 2017 order to provide Mother with additional partial physical
custody of the Children during their summer vacation. On February 1, 2017,
Mother timely filed a notice of appeal, along with a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
In her brief on appeal, Mother raises the following issues:
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A. Did the [trial] court err in denying the appellant’s [Mother’s]
request to relocate the Children in this case to her home in
Alaska?
B. Did the [trial] court err in giving insufficient weight to the
evidence of abuse in this case?
C. Did the [trial] court err in giving insufficient weight to the
Children’s well-reasoned preference?
Mother’s Brief, at 3-4 (unpaginated).2
In custody 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 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:
[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
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2
Mother framed her issues somewhat differently in her concise statement,
but we find that she preserved them for our review.
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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) (quoting
Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)).
In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), we
stated the following regarding an abuse of discretion standard.
Although we are given a broad power of review, we are
constrained by an abuse of discretion standard when evaluating
the court’s order. An abuse of discretion is not merely an error
of judgment, but if the court’s judgment is manifestly
unreasonable as shown by the evidence of record, discretion is
abused. An abuse of discretion is also made out where it
appears from a review of the record that there is no evidence to
support the court’s findings or that there is a capricious disbelief
of evidence.
Id. at 18-19 (quotation and citations omitted).
Regarding the definition of an abuse of discretion, this Court has
stated: “[a]n 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) (quotation 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, 5338.
Section 5323 of the Act provides for the following types of awards:
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(a) Types of award.—After considering the factors set forth in
section 5328 (relating to factors to consider when awarding
custody), the court may award any of the following types of
custody if it in the best interest of the child:
(1) Shared physical custody.
(2) Primary physical custody.
(3) Partial physical custody.
(4) Sole physical custody.
(5) Supervised physical custody.
(6) Shared legal custody.
(7) Sole legal custody.
23 Pa.C.S. § 5323.
Section 5338 of the Act provides that, upon petition, a trial court may
modify a custody order if it serves the best interests of the child. 23 Pa.C.S.
§ 5338. Section 5328(a) sets forth the best interest factors that the trial
court must consider. See E.D. v. M.P., 33 A.3d 73, 80-81, n.2 (Pa. Super.
2011).
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.
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(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.
(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.
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(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.
In making a decision on whether to modify an existing custody order,
the court must consider all of the section 5328(a) factors. J.R.M. v. J.E.A.,
33 A.3d 647, 652 (Pa. Super. 2011). Our case law is clear that the amount
of weight that a court gives to any one factor is almost entirely within its
discretion. See M.J.M. v. M.L.G., 63 A.3d 331, 339 (Pa. Super. 2013)
(citing A.D. v. M.A.B., 989 A.2d 32, 35–36 (Pa. Super. 2010)) (“It is within
the trial court’s purview as the finder of fact to determine which factors are
most salient and critical in each particular case.”). The one exception is that
trial courts must give weighted consideration to those factors which affect
the safety of the child. See 23 Pa.C.S.A. § 5328(a).
Where a request for relocation of the subject child along with a parent
is involved, the trial court must consider the following ten relocation factors
set forth within section 5337(h) of the Act:
(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.
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(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.
23 Pa.C.S. § 5337(h). See E.D. at 81-82 (“Section 5337(h) mandates that
the trial court shall consider all of the factors listed therein, giving weighted
consideration to those factors affecting the safety of the child.”); see also
D.K. v. S.P.K., 102 A.3d 467, 477-78 (Pa. Super. 2014) (holding that trial
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court is to consider the section 5337(h) factors only where a parent is
relocating with child).
The Court stated in D.K., “where neither parent is relocating, and only
the custodial rights of the parties are at issue, section 5337 of the Child
Custody Act is not per se triggered.” D.K., 102 A.3d 474. However, where
“the children stand to move a significant distance, trial courts should still
consider the relevant factors of section 5337(h) in their section 5328(a) best
interests analysis.” Id. at 476.
Section 5337(i) provides that 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),” and that
each party “has the burden of establishing the integrity of that party’s
motives in either seeking relocation or seeking to prevent the relocation.”
23 Pa.C.S. § 5337(i).
Further, we have explained as follows:
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(a) 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),
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.” M.J.M.
v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013), appeal denied,
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[620 Pa. 710], 68 A.3d 909 (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, 822-823 (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 its ratio decidendi 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., 2012 PA
Super 156, 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) extends to cases that involve both custody
and relocation pursuant to section 5337.
A.M.S., 70 A.3d at 835.
Additionally, in A.M.S., we held that, with regard to relocation:
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.
A.M.S., 70 A.3d at 836 (citations omitted) (emphasis in original).
Moreover, “[w]hen 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,
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421 (Pa. Super. 2012) quoting Baldwin v. Baldwin, 710 A.2d 610, 614
(Pa. Super. 1998)).
In its Opinion, the trial court stated the following with regard to the
section 5328(a) best interest factors.
In the instant case, [M]other seeks a modification which
entails a change to an award of custody. Thus, the [c]ourt will
address each of the factors as listed at 23 Pa.C.S. § 5328(a) in
seriatim.
(1) Which party is more likely to encourage and permit
frequent and continuing contact between the children and
another party.
The parties stand on equal footing regarding this factor.
Both parents testified they want the [C]hildren to have a
relationship with the other. While in [F]ather’s custody, the
[C]hildren speak regularly with [M]other via telephone. The
parties are able to communicate via email and text message.
Although tension exists between the parties, neither parent
interferes with the [C]hildren’s communication and contact with
the other parent.
(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 children or an abused party
and which party can better provide adequate physical
safeguards and supervision of the children.
Although this factor appears to favor [M]other, under the
circumstances it is neutral. In April 2016, [M]other filed a PFA
on behalf of the [C]hildren against [F]ather alleging [F]ather
physically disciplined the [C]hildren. The final PFA was denied
by Judge Robert Sambroak on April 5, 2016. Father admits to
physically disciplining [A.G.] as a last resort. Father utilizes
other disciplinary means such as taking away electronics. [A.G.]
informed the [c]ourt that [F]ather has not utilized physical
discipline against him this year. No evidence of abuse by
[M]other or a member of [M]other’s household was introduced at
trial.
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(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).
This factor does not apply. There were no allegations of
involvement with protective services.
(3) The parental duties performed by each party on behalf
of the children.
This factor favors [F]ather. The [C]hildren have resided
primarily with [F]ather in Erie County for nine years. The
[C]hildren attend school in [F]ather’s school district and
participate in sports such as football, wrestling, and basketball
through school and the YMCA. The [C]hildren and [F]ather
participate in Boy Scouts where both [C]hildren hold leadership
positions. Father, [P]aternal [G]randparents, and [the]
[C]hildren regularly attend church together. The [C]hildren's
healthcare provider, dentist, orthodontist, and family counselor,
whom [F]ather and [the] [C]hildren see every three weeks, are
all located in Erie County. Father is in contact with the
[C]hildren’s teachers and ensures the [C]hildren complete their
homework. Father utilizes [P]aternal [G]randparents to care for
[the] [C]hildren after school and on days when the [C]hildren do
not have school. [A.G.’s] school performance was slipping but is
now improving.
Mother also duly performs parental duties when [the]
[C]hildren are in her custody. The [C]hildren keep [M]other
informed of their schooling. Mother ensures the [C]hildren
complete their summer school work and are engaged in activities
such as riding motorbikes, four-wheeling, and helping mother’s
husband on his farm. Mother’s school district is highly rated and
offers many sports and academic opportunities. Mother would
ensure [the] [C]hildren attend church. A family health care
center is located nearby to meet the [C]hildren’s medical needs.
Relocation to Alaska would necessitate changing the
[C]hildren’s school and healthcare providers. Since [F]ather has
ensured for several years that the [C]hildren complete their
homework, receive necessary healthcare, including counseling,
and participate in many activities, the [c]ourt finds it is in the
[C]hildren’s best interests to reside primarily with [F]ather
during the school year.
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(4) The need for stability and continuity in the children's
education, family life and community life.
This factor favors [F]ather. The [C]hildren have resided
with [F]ather in Erie County for nine years. The [C]hildren get
off the school bus at [P]aternal [G]randparents’ residence daily
where they play, complete homework, eat snacks, and help
around the house. [R.G.] earns good grades, enjoys gym, and
has friends at school. [A.G.’s] school performance is improving;
he enjoys science and writing, and has friends nearby. Father
participates with [the] [C]hildren in Boy Scouts, where both
[C]hildren hold leadership positions. Father, [P]aternal
[G]randparents, and [the] [C]hildren attend church together
regularly. The [C]hildren participate in sports through school
and the YMCA. The [C]hildren participate in outdoor activities
with [F]ather such as snowmobiling, four-wheeling, camping,
and hunting. Father takes [the] [C]hildren on road trips.
Paternal [A]unt, [U]ncle, and [G]reat-[A]unt also reside nearby
and have positive relationships with [the] [C]hildren.
When in [M]other’s custody[,] the [C]hildren also
participate in outdoor activities such as riding dirt bikes,
camping, four-wheeling, and skateboarding. The [C]hildren
perform farm work with [M]other’s husband. If the [C]hildren
relocate to Alaska, activities such as church and Boy Scouts
would be available. The [C]hildren get along with their twenty
(20)[-]year[-]old half-sister, [M]aternal [A]unt and two
(2)[-]year[-]old cousin. The [C]hildren enjoy the time they
spend with both parents.
The [c]ourt finds it is in the [C]hildren’s best interests to
reside with [F]ather during the school year as the [C]hildren are
doing well in school and enjoy many activities through their
school and the YMCA. The [C]hildren enjoy a close positive
relationship with their paternal grandparents whom they see
daily. The [c]ourt acknowledges the [C]hildren expressed a
preference to reside with [M]other in Alaska and have positive
relationships with [M]other, [M]other’s husband, and extended
family. However, the [c]ourt finds it will promote stability in the
[C]hildren’s education, family life, and community life to reside
primarily with [F]ather during the school year.
(5) The availability of extended family.
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This factor favors [F]ather. Paternal [G]randparents
provide care for the [C]hildren daily and have close, positive
relationships with them. The [C]hildren get off the school bus at
[P]aternal [G]randparents’ residence. The [C]hildren eat snacks,
complete homework, and help around the house. Father picks
[C]hildren up from [P]aternal [G]randparents’ residence at 5:45
p.m. On Tuesdays, the [C]hildren eat dinner at [P]aternal
[G]randparents’ residence before attending Boy Scouts. Paternal
[G]randparents attend the [C]hildren’s extracurricular activities.
[The] Children regularly attend church with [F]ather and
[P]aternal [G]randparents. [P]aternal [A]unt, [U]ncle, and
[G]reat-[A]unt also reside nearby and are available to care for
the [C]hildren.
When in [M]other’s custody, [M]aternal [A]unt is available
to care for [the] [C]hildren. The [C]hildren have close, positive
relationships with their extended family members.
(6) The children’s sibling relationships.
This factor favors [M]other. The [C]hildren’s twenty
(20)[-]year[-]old half[-]sister resides with [M]other. The
[C]hildren have a close positive relationship with her and with
each other. Father has no other children.
(7) The well-reasoned preference of the children, based
on the children’s maturity and judgment.
This factor favors [M]other. The [C]hildren expressed a
strong preference to reside with [M]other. The [C]hildren enjoy
the time they spend with [M]other in Alaska and have resided
primarily with [F]ather for nine (9) years. The [C]hildren get
along well with [M]other, [M]other’s husband, their twenty
(20)[-]year[-]old half-sister, and [M]aternal [A]unt and two
(2)[-]year[-]old cousin. The [C]hildren help [M]other’s husband
on his farm and go hunting, camping, and four-wheeling. The
[C]hildren were not concerned about attending a new school and
already have friends in mother’s neighborhood. The [C]hildren’s
activities in Erie County, such as church and Boy Scouts, are also
available in Alaska.
The [c]ourt found the [C]hildren to be well[-]spoken and
reasonably mature for their ages. Although the [C]hildren
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expressed a strong preference to relocate to Alaska, the [c]ourt
finds it is in the [C]hildren's best interests to reside primarily
with [F]ather during the school year to promote consistency in
their education and family relationships.
(8) The attempts of a parent to turn the children against
the other parent, except in cases of domestic violence
where reasonable safety measures are necessary to
protect the children from harm.
This factor is neutral. Although conflict exists between the
parties, and [F]ather admits to disparaging [M]other in front of
the [C]hildren, there is no evidence either party attempted to
turn the [C]hildren against the other.
(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the children
adequate for the children’s emotional needs.
This factor is neutral. Both parties are dedicated to
maintaining a loving, stable, consistent, and nurturing
relationship with the [C]hildren adequate for the [C]hildren's
needs.
(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and
special needs of the children.
This factor is neutral. Both parents are equally dedicated
to attending to the [C]hildren’s daily physical, emotional,
developmental, educational, and special needs.
(11) The proximity of the residences of the parties.
This factor favors neither party. Father resides in Erie
County, Pennsylvania, and [M]other resides in Valdez, Alaska,
approximately four thousand (4,000) miles apart.
(12) Each party’s availability to care for the children or
ability to make appropriate child-care arrangements.
This factor is neutral. Father is employed full-time and is
available to care for the [C]hildren when he is not working.
Father utilizes [P]aternal [G]randparents to care for the
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[C]hildren after school and on days they do not have school.
Paternal [A]unt, [U]ncle, and [G]reat-[A]unt are also available to
care for the children.
Mother and her husband are both employed full-time and
are available to care for the [C]hildren when they are not
working. Maternal [A]unt is also available to care for the
children. The Court notes children are fourteen (14) years old
and eleven (11) years old and sufficiently mature for their ages.
(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.
This factor is neutral. There is a high level of conflict
between the parties. However, the parties demonstrate equal
willingness to cooperate.
(14) The history of drug or alcohol abuse of a party or
member of a party’s household.
This factor does not apply. No evidence of alcohol or drug
abuse by a party or a member of their household was introduced
at trial.
(15) The mental and physical condition of a party or
member of a party’s household.
This factor does not apply. No evidence that either parent,
or a member of their household, has a mental or physical
condition which would interfere with parenting [was introduced
at trial].
(16) Any other relevant factor.
There are no other relevant factors.
Trial Court Opinion, 1/3/17, at 7-11.
With regard to relocation, the trial court stated the following.
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The [c]ourt must also take into consideration the
relocation factors listed at 23 Pa.C,S. § 5337(h)… The Superior
Court specifically stated that three factors are not encompassed
by Section 5328(a) and should be considered separately.
(1) The first of these is Section 5337(h)(2), which
concerns the age, developmental stage, needs of the
children and the likely impact the children’s change of
residence will have on the children’s physical, educational
and emotional development.
This factor favors [F]ather. The [C]hildren are fourteen
(14) and eleven (11) years old and have resided with [F]ather in
Erie County for nine years. [R.G.] earns good grades, has
friends at school, and participates in many sports and outdoor
activities. [A.G.] has struggled in school but has recently been
improving. [A.G.] also participates in many sports and outdoor
activities. The [C]hildren’s activities are available through their
schools and the YMCA. Paternal [G]randparents and [F]ather
assist [the] [C]hildren with school work and attend their
activities. Father is an assistant scoutmaster in the [C]hildren’s
Boy Scout troop, where both boys hold leadership positions. The
[C]hildren regularly attend church with [F]ather and [P]aternal
[G]randparents. Children’s healthcare providers, including
dentist, orthodontist, and family counselor, whom [F]ather and
[C]hildren see every three weeks, are located in Erie County.
The [c]ourt notes [M]other would also ensure the [C]hildren
receive a proper education and healthcare if they were to reside
primarily with her. Primarily to promote consistency in the
[C]hildren’s physical, educational, and emotional development,
the [c]ourt finds it is in the children’s best interests to reside
primarily with [F]ather in Erie County during the school year.
(2) The second factor is Section 5337(h)(3), which
concerns the feasibility of preserving the relationship
between the other parent and the children.
This factor is neutral. The parties have resided
approximately four thousand (4,000) miles apart for nine years.
Mother has consistently exercised periods of partial custody
during the [C]hildren’s summer school vacations and every other
winter break. Mother also travels to Erie County to see the
[C]hildren. The [C]hildren speak to [M]other regularly on the
telephone. Both parents testified they want the [C]hildren to
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have a relationship with the other. Although conflict exists
between the parties, both parents are equally willing to
encourage the [C]hildren’s relationship with the other.
(3) The third factor is Section 5337(h)(7), which concerns
whether the change in the children's residence will
enhance the general quality of life for the children.
This factor is neutral. The [C]hildren have resided in Erie
County with [F]ather for nine years. The [C]hildren attend the
Wattsburg Area School District where both [C]hildren have
friends and enjoy some of their classes. The [C]hildren
participate in outdoor activities such as snowmobiling, camping,
hunting, and four-wheeling. The [C]hildren actively participate
in Boy Scouts, where they hold leadership roles. Father,
[P]aternal [G]randparents, and [the] [C]hildren regularly attend
church together. The [C]hildren’s healthcare providers including
dentist, orthodontist, and family counselor, whom [the]
[C]hildren and [F]ather see every three weeks, are all located in
Erie County.
The [C]hildren expressed a strong preference to relocate
to Alaska. The [C]hildren have consistently spent several weeks
during the summer with [M]other in Alaska and [M]other spends
time with the children in Erie County during the year. If the
children relocate to Alaska and reside primarily with [M]other
they would attend a new school and have different healthcare
providers. The [C]hildren enjoy the time they spend in
[M]other’s custody and have friends in [M]other’s neighborhood.
If the [C]hildren reside primarily with [M]other they will have
access to similar sports and academic programs, including
church and Boy Scouts. In Alaska, the [C]hildren will be able to
participate in the same outdoor activities they enjoy in Erie
County, such as snowmobiling, camping, hunting, and four-
wheeling.
CONCLUSION
The [c]ourt acknowledges both parents love the [C]hildren and
are dedicated to meeting the [C]hildren’s needs. The [C]hildren
love their parents and want to spend time with both of them.
Both parties have established the integrity of their motives
regarding the relocation. The [c]ourt acknowledges this matter
was a very close decision. The [c]ourt, however, finds that
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[M]other did not meet her burden of establishing that the
relocation will serve the best interests of the [C]hildren. The
[c]ourt therefore finds it is in the [C]hildren’s best interests to
continue residing primarily with [F]ather during the school year.
The [c]ourt, however, also finds that it is in the [C]hildren’s best
interests to have more periods of partial custody with mother.
Thus, [M]other’s partial custody during the summer school break
shall be increased to eight (8) weeks.
As set forth by the review of the best interest factors at 23
Pa.C.S. § 5328(a), as well as the relevant factors listed at 23
Pa.C.S. § 5337(h), the court finds that [M]other did not meet
her burden of establishing that the relocation will serve the best
interests of the [C]hildren and therefore her request is denied.
Primarily because of the benefits to [A.G.] and [R.G] of
maintaining stability and continuity in their education,
community, and family relationships, the [c]ourt finds that it is
in the [C]hildren’s best interests to continue in effect the Alaskan
Parenting Agreement signed April 4, 2007, and the Custody
Consent Agreement filed June 7, 2016, as amended herein.
Trial Court Opinion, 1/3/17, at 11-13 (citation omitted).
In her brief on appeal, Mother argues that the trial court abused its
discretion in denying her request in her modification petition for primary
physical custody of the Children, which would require them to relocate to her
home in Alaska, asserting that the evidence supported the relocation.
Mother’s Brief, at 5 (unpaginated). Mother concedes that the trial court
appropriately found that most of the statutory factors were neutral or
inapplicable to the parties. Id. at 6 (unpaginated). Mother contends that
the trial court abused its discretion by ruling that the best interest factor
dealing with abuse, section 5328(a)(2) of the Act, did not favor either party
under the evidence in this case. Id. Mother also urges that the trial court
failed to afford sufficient weight to the well-reasoned preference of the
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Children under section 5328(a)(7) of the Act. Id. Accordingly, Mother
requests this Court to find that the trial court abused its discretion in
denying her modification petition, and remand the matter to the trial court.
Id. at 5-6 (unpaginated).
Our review of the record supports the trial court’s findings that the
Children are doing well in Father’s primary physical custody, and that they
would benefit from the stability Father provides them during the school year.
Thus, the court did not abuse its discretion when it concluded that Mother’s
unproven allegations that Father had physically abused the Children in the
past as relates to section 5328(a)(2), and the Children’s preference pursuant
to section 5328(a)(7), did not outweigh the other section 5328(a) factors,
particularly section 5328(a)(4), which requires consideration of the need for
stability and continuity in the child’s education, family life, and community
life.
After review of the record, we determine the trial court’s findings
regarding the custody factors set forth under section 5328(a), including the
relevant factors under section 5337(h), and its determinations regarding the
Children’s best interests are supported by competent evidence in the record,
and we will not disturb them. M.J.M., 63 A.3d at 339; C.R.F., 45 A.3d at
443. As we stated in King v. King, 889 A.2d 630, 632 (Pa. Super. 2005):
It is not this Court’s function to determine whether the trial court
reached the ‘right’ decision; rather, we must consider whether,
‘based on the evidence presented, given [sic] due deference to
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the trial court’s weight and credibility determinations,’ the trial
court erred or abused its discretion. . . .
(quoting Hanson v. Hanson, 878 A.2d 127, 129 (Pa. Super. 2005)).
Accordingly, we affirm the trial court’s January 3, 2017 custody order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/26/2017
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