Hetrick, C. v. McClintock, N. ( 2023 )

J-A29020-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CHEYENNE A. HETRICK : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
NATHAN J. MCCLINTOCK : No. 721 WDA 2022
Appeal from the Order Entered May 23, 2022
In the Court of Common Pleas of Clarion County Civil Division at No(s):
No. 1021 CD 2021
BEFORE: BENDER, P.J.E., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY OLSON, J.: FILED: FEBRUARY 3, 2023
Appellant, Cheyenne A. Hetrick (“Mother”), appeals from the order
dated May 20, 2022, and entered May 23, 2022, in the Clarion County Court
of Common Pleas, awarding Nathan J. McClintock (“Father”) primary physical
custody of his daughter, J.A.S. (“Child”), born in October 2016. Upon careful
review, we affirm.
The relevant facts and procedural history are as follows. In May 2015,
Mother married R.H. (“Stepfather”), and they separated that same year. N.T.,
5/10/22, at 143, 152-153, 182. In late 2015 and early 2016, Mother began
dating Father (collectively, “Parents”). Id. at 13, 143, 182. Parents’ romantic
relationship lasted four months, during which time Mother conceived Child.
Id. at 13, 16.
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In May 2016, Mother moved from Pennsylvania to Florida, where she
gave birth to Child in October 2016, and Father remained in Pennsylvania. Id.
at 16-18, 144. Mother filed for full custody of Child in Florida, and Father’s
paternity of Child was established during the pendency of the custody matter.
Id. at 18-19. The custody case was subsequently dismissed when Mother
expressed her intent to return to Pennsylvania. Id. at 19.
In October 2017, Mother and Child traveled to Pennsylvania, and Father
had one overnight visit with Child. Id. at 20. The following month, Mother
reconciled with Stepfather. As best we can discern, Mother and Child began
residing with Stepfather in Marienville, Forest County, Pennsylvania at that
time. Id. at 20-21, 182-183. Between November 2017 and June 2018, Father
had one additional weekend visit with Child. Id. at 21. In 2018, Father moved
into his parents’ (“Paternal Grandparents”) home in Rouseville, Venango
County, Pennsylvania, where he continued to reside through the time of the
subject proceeding. Id. at 3-4, 18, 54.
In June 2018, Parents entered an informal custody arrangement,
wherein Father could visit Child every weekend. Id. at 21-23. At the time,
Mother attended classes at Clarion University during part of the week. Id. at
23-25. Upon agreement, Father registered Child for daycare. Id. at 24-25.
When Mother attended classes, Father picked Child up from daycare twice a
week, and those weekday custodial times typically lasted a “couple hours.”
Id. at 23-24.
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In January 2019, Mother commenced a custody action in the Court of
Common Pleas of Forest County. Id. at 25. By order dated February 25,
2019, and entered March 6, 2019, the trial court awarded Parents shared legal
custody and shared physical custody as determined by mutual agreement of
the parties. Around Easter weekend of 2019, Parents had a disagreement
about the time that Father was to return Child to Mother at the conclusion of
Father’s weekend visit. Id. at 25. Father returned Child to Mother past the
agreed upon drop-off time. Id. at 26.
In April and May 2019, respectively, Parents filed cross-petitions for
modification of the custody order.1 By consent order entered on July 26, 2019
(“existing custody order”), the trial court awarded Parents shared legal
custody, Mother primary physical custody, and Father partial physical custody
three out of four weekends per month and at other times based on mutual
agreement. Order, 7/26/19, at 2. In addition, the court awarded Parents
physical custody for two nonconsecutive weeks each year and holidays based
on their agreement. The court further directed Parents to have reasonable
contact with Child while she is in the physical custody of the other parent, and
such contact may include telephone, email, text, or social media. Id. at 9.
____________________________________________
1 Mother also filed a petition for civil contempt on April 29, 2019. Mother
subsequently filed a motion to withdraw the petition, and the trial court
granted the motion to withdraw.
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In March 2020, Mother filed a petition for emergency custody, seeking
to retain “emergency primary custody until [the] pandemic is under control.”
Mother’s Petition for Emergency Custody, 3/25/20. At this time, Mother
remained married to Stepfather and had bore him a son, who was then
approximately seven months old. Following a hearing in April 2020, the trial
court denied Mother’s petition. In June 2020, Mother filed a protection from
abuse (“PFA”) petition against Father, alleging Father had abused Child. N.T.,
5/10/22, at 29. However, the county children and youth services agency
investigated the allegations and determined that they were unfounded. Id.
at 29-30. No criminal charges were brought against Father, and the PFA was
dismissed in October 2020. Id. at 30. During the pendency of the PFA
petition, Father had supervised visits with Child two days a week, for one hour.
Id. Once the PFA was dismissed, Father resumed his weekend custodial time.
Id. at 31-32.
In August 2020, Mother separated from Stepfather, and she relocated
with Child to the home of her mother (“Maternal Grandmother”) in Clarion
County, where they remained until approximately December 2020. Id. at
137, 161, 185, 212. In 2020, Mother made a Facebook post, stating in part,
the following:2
And sometimes, maybe I did act crazy.
____________________________________________
2As best we can discern, soon after her separation from Stepfather, Mother
made the Facebook post about her relationship with Stepfather. N.T.,
5/10/22, at 185-186.
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I was emotionally and mentally abused for [six] years.
I moved 1600 miles to do this all over again.
...
I once went [fourteen] days without being spoken to.
...
I had PPD and was having suicidal thoughts, he sent me to my
moms and broke up with me.
...
He threw things, broke things, sent me into panic attacks
regularly.
...
He called me an addict for taking my prescribed medications.
He threatened to kill me more times than I can count, in front of
nearly everyone I know. . . . I was spit on. Then had a wallet
thrown at my face. I was charged at while 6 months pregnant.
Then I was grabbed up, with my life threatened. In front of his
mother. And no one helped. The only thing they cared about was
the coffee cup I smashed afterwards.
Then, a knife was pulled, and I was bruised and thrown down a
hallway with my life being threatened. In front of my family.
Then, I was blamed.
Told I did it to myself.
By everyone who swore I was their family too. His mother
included, who claims to be a victim of abuse herself.
He ran off [three] hours away after stealing every dime of food
money, credit cards, and my child support. And never saw his
kids or tried to work something out.
Father’s Exhibit C; N.T., 5/10/22, at 41-43. According to Mother, Mother had
“harmed” herself around November 2020. N.T., 5/10/22, at 197.
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From December 2020 through October 2021, Mother and Child resided
in a public housing apartment in Rimersburg, Clarion County. Id. at 137-138.
The driving distance between Mother’s Clarion County home and Father’s
home in Venango County was approximately one hour. Id. at 170. In 2021,
upon the parties’ agreement, Father exercised custody four weekends every
month. Id. at 40. In approximately August 2021, Child was enrolled in
pre-kindergarten. Id. at 204; Father’s Exhibit F, at 5. Father picked Child up
from preschool once a week, and those visits lasted a couple hours each. N.T.,
5/10/22, at 40-41. In October 2021, Father stopped picking Child up due to
a change in his work schedule. Id. at 10, 49-50, 123.
In October 2021, Mother was evicted from her Rimersburg apartment.3
Id. at 44. Mother notified Father that she had been evicted and was
considering a move to Indiana County. Id. at 44, 46-47. Father indicated he
was not in agreement with Child moving to Indiana County and requested that
Mother and Child remain in Clarion County. Id. at 47. According to Mother,
later that month, Mother moved into Stepfather’s home in Mansfield, in Tioga
County, “to discuss options while waiting on housing.” Id. at 194-195. Child
____________________________________________
3 According to Father, Mother was residing in Rimersburg with a boyfriend.
N.T., 5/10/22, at 31-33. Father introduced into evidence newspaper articles
showing Mother and her boyfriend were charged with disorderly conduct, and
Mother’s boyfriend was charged with harassment on a separate occasion. Id.
at 44-45; Father’s Exhibit D. The record does not indicate the status of those
charges.
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was also withdrawn from preschool in late October 2021. Id. at 57, 204;
Father’s Exhibit F, at 5. In November 2021, Mother reconciled with
Stepfather, and she and Child remained with him in Tioga County. N.T.,
5/10/22, at 138-139, 153.
On October 29, 2021, Father filed a petition for emergency custody in
the Forest County Court of Common Pleas and a petition to modify the existing
custody order, requesting shared legal and primary physical custody. Father
contemporaneously filed a petition to transfer the action to the Clarion County
Court of Common Pleas, which was granted on November 24, 2021.
The evidentiary hearing on Father’s petition for emergency custody
occurred in the Clarion County Court of Common Pleas on January 18, 2022.
By order dated January 18, 2022, and entered January 25, 2022, the trial
court ordered an expedited hearing on: (1) whether a relocation has occurred;
(2) whether relocation should be granted; and (3) whether Father’s petition
for modification should be granted.
The court held the subject hearing on May 10, 2022. Both Parents
testified on their own behalf. The parties stipulated to the testimony of Child’s
paternal grandmother (“Paternal Grandmother”). N.T., 5/10/22, at 135. The
parties also stipulated that Maternal Grandmother, who resides in Clarion
County, would have testified, in part, that: Maternal Grandmother sees
Mother and Child “a few times a month, on a regular basis,” and that Mother
and Child have visited Maternal Grandmother’s house. Id. at 212-213.
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Father testified he has been living with Paternal Grandparents in
Venango County, and he does not plan to move out of their home due to his
financial circumstances. Id. at 3-4, 54, 60, 107. When asked about the
proximity between his home and Mother’s residence in Tioga County, Father
testified, “Three and a half hours. I can’t remember the [mileage], one
hundred and eighty-some miles, I think.” Id. at 62.
Father testified that Mother never informed him about moving to Tioga
County, and he found out only after Mother had moved. Id. at 53. Father
testified that in November 2021, he had a FaceTime call with Child, and he
saw Mother and Stepfather together on the couch. Id. He testified that at
that point, he suspected Mother had not been truthful to him about resuming
her relationship with Stepfather. Id.
Father testified he is presently self-employed, managing a tree service
company that provides trimming, tree removal, and landscaping services, and
he noted he has “variable” work hours. Id. at 9, 50. Father testified that
during the winter of 2021, he worked at a welding shop in Warren, Ohio. Id.
at 10, 49-50. Father testified he previously worked for six years at the
maintenance department for the Department of Conservation and Natural
Resources at Presque Isle State Park in Erie, Pennsylvania. Id. at 11.
Mother testified that she currently resides in a three-bedroom home in
Tioga County with Child, Stepfather, and her two-year-old son with
Stepfather. Id. at 137-140. She testified that Stepfather’s twelve-year-old
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daughter visits their home a couple times per month. Id. at 138-139. Mother
testified that Child’s maternal grandparents reside in Clarion County. Id. at
161. She testified that Child has contact with her maternal grandparents “at
least weekly” but “sometimes more.” Id. at 162.
Mother testified that she was prescribed Adderall, Gabapentin, Effexor,
Premarin, and Buspar to treat her depression, anxiety, attention deficit
hyperactivity disorder (“ADHD”), and neuropathy. Id. at 155-156. She
stopped taking her medications in October or November of 2021. Id. at 156.
Mother testified that Child has a sensory processing disorder and is on
the autism spectrum. Id. at 173. Mother testified she attends to Child’s needs
by learning about autism and helping Child calm down when she is
over-stimulated. Id. Mother testified that Child receives Individualized
Education Plan (“IEP”) services on Mondays, for about one hour. Id. at 159.
Mother testified that the recommendation from Child’s IEP is for Child to
receive therapy. Id.
By opinion and order dated May 20, 2022, and entered May 23, 2022,
the court found Mother had relocated and that the relocation was not in Child’s
best interests. Further, the court granted primary physical custody of Child
to Father and awarded partial physical custody to Mother.
On June 20, 2022, Mother timely filed a notice of appeal and a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P.
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1925(a)(2)(i) and (b). The trial court filed a statement pursuant to Pa.R.A.P.
1925(a), wherein it refers this Court to the May 23, 2022 opinion.
On appeal, Mother raises four issues, which we have reordered for ease
of disposition:
1. Whether the trial court committed an error of law and/or
abused its discretion by finding that Mother’s move
constituted a relocation as defined by 23 Pa.C.S.A. § 5322?
2. Whether the trial court committed an error of law and/or
abused its discretion in failing to find factors, 23 Pa.C.S.A.
[§] 5328(a)(1), [(3), (4), (9), (10), (12), and (13)] favored
Mother, where the evidence clearly showed that said factors
favored Mother?
3. Whether the trial court committed an error of law and/or
abused its discretion in failing to give proper weight to all
things that affect the “best interest” of the child?
4. Whether the trial court committed an error of law and/or
abused its discretion in finding that Mother’s move would
not serve the “best interests” pursuant to the 23 Pa.C.S.A.
§ 5337(h) factors?
Mother’s Brief at 3-4 (suggested answers omitted).
We review Mother’s issues according to the following scope and standard
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
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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 which] 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).
We have explained, “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, giv[ing] due deference to the trial court’s
weight and credibility determinations,’ the trial court erred or abused its
discretion. . . .” King v. King, 889 A.2d 630, 632 (Pa. Super. 2005) (quoting
Hanson v. Hanson, 878 A.2d 127, 129 (Pa. Super. 2005)). This Court has
recognized that “the knowledge gained by a trial court in observing witnesses
in a custody proceeding cannot adequately be imparted to an appellate court
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by a printed record.” Ketterer, 902 A.2d at 540 (quoting Jackson v. Beck,
858 A.2d 1250, 1254 (Pa. Super. 2004)).
With respect to custody cases, the primary concern is the best interests
of the child. “The best-interests standard, decided on a case-by-case basis,
considers all factors that legitimately have an effect upon the child’s physical,
intellectual, moral, and spiritual wellbeing.” Saintz v. Rinker, 902 A.2d 509,
512 (Pa. Super. 2006) (quoting Arnold v. Arnold, 847 A.2d 674, 677 (Pa.
Super. 2004)).
Child custody actions are governed by the Child Custody Act (“Act”), 23
Pa.C.S.A. §§ 5321-5340. Section 5328 of the Act provides the following list
of factors that a trial court is required to consider in determining the best
interests of the child when awarding any form of custody:
§ 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).
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(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.
(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.
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(16) Any other relevant factor.
23 Pa.C.S.A. § 5328(a). “In any action regarding the custody of the child
between the parents of the child, there shall be no presumption that custody
should be awarded to a particular parent.” 23 Pa.C.S.A. § 5327(a).
Additionally, when a custody action involves a relocation, “[t]he 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),” which provides as follows:
(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.
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(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.A. § 5337(h).
In matters involving both a custody determination and relocation
decision, this Court has explained that the trial court is required to consider
all of the factors listed in Sections 5328(a) and 5337(h) when entering a
custody order. A.V., 87 A.3d at 822 (citation omitted); see also A.M.S. v.
M.R.C., 70 A.3d 830, 836 (Pa. Super. 2013) (stating that, when making a
decision on relocation that also involves a custody decision, “the trial court
must consider all ten relocation factors and all sixteen custody factors”
outlined in the Act). Moreover, “[i]n a custody action, it is within the trial
court’s discretion based on the record before it to determine the relevant
weight to give each of the Section 5328(a) factors in a particular case.” T.M.
v. H.M., 210 A.3d 283, 289 (Pa. Super. 2019) (citing M.J.M. v. M.L.G., 63
A.3d 331, 339 (Pa. Super. 2013)).
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Instantly, in its opinion accompanying the subject order, the trial court
found that Mother relocated, as defined by 23 Pa.C.S.A. § 5322, when she
moved from Clarion County to Tioga County, which is 180 miles away from
Father’s home in Venango County. Trial Court Opinion, 5/23/22, at 3-4. The
court considered the sixteen best interest factors and the ten relocation factors
and provided the reasons for its decision. Id. at 4-12. With respect to the
best interest factors, the court found Section 5328(a)(2), (15), and (16) in
favor of Father, while finding Section 5328(a)(6) in favor of Mother. Id. at
9-10, 12. The court found Section 5328(a)(2.1), (7), and (8) inapplicable.
Id. at 9-11. The court found the remaining factors neutral in that Section
5328(a)(1), (3), (4), (5), (9), (10), (12), and (14) favored both Parents, and
(11) and (13) did not favor either parent. Id. at 9-12.
With respect to the relocation factors, the trial court found
Section 5337(h)(2) and (3) favored Father, while Section 5337(h)(6) slightly
favored relocation. Id. at 5-7. The court found Section 5337(h)(1), (5), (7),
and (8) neutral and Section 5337(h)(4) and (9) inapplicable. Id. at 5-7.
Under Section 5337(h)(10), the court considered Mother’s failure to provide
reasonable notice of her proposed relocation. Id. at 8. The court concluded
that Mother’s relocation would not serve the best interests of Child. Id. at 9.
The court awarded primary physical custody to Father and partial physical
custody to Mother.
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Turning to the merits of the appeal, in her first issue, Mother claims the
trial court erred in finding that Mother relocated to Tioga County because
Mother’s move did not impact Father’s involvement with Child. Mother’s Brief
at 18-22. Specifically, Mother notes that prior to moving, she and Father lived
one hour apart and never lived in the same school district or county. Id. at
22. She further asserts Father had daily phone calls with Child after he filed
his petition to modify in October 2021, and he continued to see Child during
his periods of partial custody. Id. at 20-21. We are not persuaded by
Mother’s argument.
As an initial matter, in cases involving statutory interpretation, this
Court has held:
[T]he interpretation and application of a statute is a question of
law that compels plenary review to determine whether the court
committed an error of law. As with all questions of law, the
appellate standard of review is de novo and the appellate scope
of review is plenary.
C.B. v. J.B., 65 A.3d 946, 951 (Pa. Super. 2013) (quoting In re Adoption of
J.A.S., 939 A.2d 403, 405 (Pa. Super. 2007)).
The Act defines a relocation as, “[a] change in a residence of the child
which significantly impairs the ability of a nonrelocating party to exercise
custodial rights.” 23 Pa.C.S.A. § 5322(a). The Act provides that no relocation
shall occur without the consent of every individual who has custody rights to
the child to the proposed relocation or court approval of the proposed
relocation. 23 Pa.C.S.A. § 5337(b). Further, the party proposing the
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relocation is required to notify every other individual who has custody rights
to the child. 23 Pa.C.S.A. § 5337(c).
The trial court found:
In the present case, Mother moved to Mansfield, Tioga County,
Pennsylvania, late last year, approximately 180 miles and a
three[-]and[-]one[-]half[-]hour drive from Father’s residence in
Rouseville, Venango County, Pennsylvania. Prior to that time,
Father was actively involved in the Child’s life. Beginning in June
2018, he saw her on a regular basis. There was no court [o]rder.
He saw her every weekend. Mother started to attend college
classes and Father saw the Child more than on just weekends; he
saw her two times per week during the weekdays for a couple of
hours. Father registered the Child for daycare at the Child
Development Center because of Mother’s work schedule and to
help her out. Father often picked her up at daycare.
The parties began having difficulty communicating and they
engaged in various court proceedings which resulted in several
court Orders for custody. In early 2021, communications and co-
parenting improved, and Father got additional time. He had
custody on most weekends, and he picked the Child up at daycare
and had her for a couple of hours at least once per week.
Father has participated with the Child in many family activities and
in outdoor activities, including hiking, snowboarding and rock wall
climbing, as depicted in the photos in Defendant’s Exhibit I.
This evidence shows that Father has had regular and continued
involvement co-parenting in different aspects of the Child’s life
that go beyond his periods of partial physical custody as
prescribed by court [o]rders. With a distance between residences
of about 180 miles and one-way travel time of about three and
one[-]half hours, the consistency and frequency of Father’s
involvement would be broken, threatening significant impairment
of Father’s ability to exercise his custodial rights. Therefore, the
move by Mother is a “relocation.”
Trial Court Opinion, 5/23/22, at 3-4 (cleaned up).
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The record supports the trial court’s finding of a relocation. Mother
testified that her prior residence in Clarion County was one hour from Father’s
residence. N.T., 5/10/22, at 170. Father testified that Mother’s new residence
in Tioga County is three and one-half hours or 180 miles from his residence.
Id. at 62. Father testified that when Mother attended college and Parents
agreed on an informal custody arrangement in 2018, Father registered Child
for daycare and picked Child up from daycare twice a week during Mother’s
class times. Id. at 21-24. Father testified that these weekday visits lasted a
couple hours. Id.
The existing custody order granted Father overnight weekend custodial
time for three weekends per month, as well as any additional time that is
mutually agreed upon by the parties. Order, 7/26/19. Upon agreement of
the parties, Father had overnight weekend custody four weekends out of the
month. N.T., 5/10/22, at 40. After Child’s enrollment in preschool in August
2021, Father testified that he picked Child up from preschool once a week for
“a couple hours,” taking her out to eat and driving her back to Mother’s home
in Clarion County. Id. at 40-42; Father’s Exhibit F, at 5. On
cross-examination, Mother agreed that Father has been actively involved with
Child since June 2018. N.T., 5/10/22, at 209.
Father acknowledged that he stopped picking Child up from preschool
in October 2021 due to a change in his work schedule at his previous welding
job. Id. at 10, 49-50, 123. However, Father is now self-employed operating
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a tree service business, which affords a flexible work schedule. Id. at 9, 50.
Further, the record demonstrates that Mother withdrew Child from preschool
in late October 2021 when she and Child moved to Tioga County. Id. at 57,
204; Father’s Exhibit F, at 5.
Mother claims that Father had greater contact with the Child after
Mother’s move to Tioga County because he participated in daily phone calls or
video calls with Child, each lasting approximately fifty minutes to one hour.
Mother’s Brief at 20-21. Mother’s claim is not persuasive. Although Father’s
ability to have reasonable contact with Child pursuant to the existing custody
order was not impacted by the relocation, the record supports the court’s
finding that “the consistency and frequency of Father’s involvement would be
broken, threatening significant impairment of Father’s ability to exercise his
custodial rights.” Trial Court Opinion, 5/23/22, at 4. Therefore, the trial court
properly concluded that Mother had relocated.
In support of its decision, the trial court cites C.M.K. v. K.E.M., 45 A.3d
417 (Pa. Super. 2012). Trial Court Opinion, 5/23/22, at 2-3. To the extent
that Mother contends that C.M.K. is inapplicable here, Mother’s contention
fails. In C.M.K., the mother proposed to move to a location approximately
sixty-eight miles from the father’s residence. 45 A.3d at 420. This Court in
C.M.K. affirmed the trial court’s finding that mother’s proposed move
constituted a relocation because it significantly impaired the father’s ability to
exercise his custodial rights. Id. at 426. The trial court found that the father
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had regular and continued involvement in co-parenting the child that went
beyond his periods of partial physical custody. Id. Specifically, the father
was involved in the child’s school activities, medical appointments, and sports
events, and had a desire to coach the child. Id.The record here provides greater support for the trial court’s finding that
Mother’s move to Tioga County meets the statutory definition of a relocation.
Compared to the sixty-eight miles in C.M.K., Mother’s move to Tioga County
resulted in a distance of 180 miles from Father’s residence, equivalent to a
one-way drive time of three and a half hours. Additionally, Father here was
actively involved in Child’s life since June 2018, having overnight weekend
custody and exercising custodial time after Child’s daycare and preschool
activities concluded.
Mother’s reliance on G.R.S. v. M.L.S., 236 A.3d 1089 (Pa. Super. 2020)
(unpublished memorandum) to challenge the trial court’s finding is misplaced,
as that case is distinguishable.4 This Court in G.R.S. found that a mother’s
move to a location thirty minutes away from the father’s home was not a
relocation because it did not significantly impair the father’s ability to exercise
custody of the child. 236 A.3d 1089, at *6. Unlike G.R.S., Mother’s new
residence in Tioga County is three and one-half hours from Father’s residence.
____________________________________________
4 In accordance with this Court’s Operating Procedure § 65.37, a non-
precedential decision of this Court filed after May 1, 2019, may be cited for its
persuasive value, pursuant to Pa.R.A.P. 126(b). 210 Pa. Code § 65.37(A).
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N.T., 5/10/22, at 62. The distance between the parties’ residences in G.R.S.
is not comparable to the distance in the present case.
Citing D.K. v. S.P.K, 102 A.3d 467 (Pa. Super. 2014), Mother contends
that a change in the custody order is not necessary for the parties to maintain
their respective rights and Mother had not requested any changes in the
schedule. Mother’s Brief at 27. However, the facts in D.K. are distinguishable
from the instant case. The D.K. court specifically held that in a custody case
“where neither [m]other nor [f]ather is relocating and only the children stand
to move to a significantly distant location, the relocation provisions of the Child
Custody Act, 23 Pa.C.S.A. § 5337, are not per se triggered and the notice
requirement of section 5337(c) does not apply.” D.K. 102 A.3d at 468. The
court further stated, “In a case such as this, where both parents remain in
their established residences, there are no changed circumstances to assess.”
Id. at 473. Unlike the parties in D.K., Mother in the instant matter changed
her geographic location when she relocated 180 miles away from Father’s
home. Contrary to Mother’s contention, the record supports the trial court’s
finding that Mother’s move to Tioga County meets the statutory definition of
a relocation. We discern no error or abuse of discretion by the trial court.
In her second issue, Mother contends the trial court erred or abused its
discretion in finding neutral the following factors: Section 5328(a)(1), (3),
(4), (9), (10), (12), and (13). Mother’s Brief at 37-39. Here, the trial court
set forth its consideration of Section 5328(a)(1), (3), (4), (9), (10), (12), and
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(13) and found these factors neutral as to both Parents. The court found both
Parents are likely to permit frequent and continuing contact with Child under
Section 5328(a)(1). Trial Court Opinion, 5/23/22, at 9. The court found both
Parents adequately performed parental duties, and both can meet the need
for stability and continuity in the Child’s education, family, and community
life, pursuant to Sections 5328(a)(3) and (4). Regarding Section 5328(a)(9),
the court determined both parents are equally likely to maintain a loving,
stable, consistent, and nurturing relationship with Child. The court found both
Parents can attend to Child’s needs and are available to care for Child and
make appropriate childcare arrangements, with respect to Section
5328(a)(10) and (12). Id. at 11. With regards to Section 5328(a)(13), the
court found “[t]here is a level of conflict between the parties which prevents
effective communication,” but the court did not find this factor in favor of or
against either parent. Id. at 12.
Mother emphasizes that she is a stay-at-home mother who would be
able to attend to Child’s needs. Mother’s Brief at 38-39. This is particularly
relevant to Sections 5328(a)(10) and (12), which, respectively, pertain to
which party is more likely to attend to the child’s daily needs and a party’s
availability to care for the child or to make appropriate childcare
arrangements. 23 Pa.C.S.A. § 5328(a)(10), (12). Father testified that he
believed both he and Mother can attend to Child’s physical, developmental,
and educational needs, though he believed he is more likely to attend to
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Child’s emotional needs. N.T., 5/10/22, at 95. Father testified that when he
is working, he would rely on Paternal Grandparents to provide childcare. Id.
at 63. While Mother argues she would be a stay-at-home mother, the record
reflects, from Mother’s own testimony, that she relies on a baby-sitter when
needed. Id. at 162, 201. Mother also testified that she believed Father is a
“good dad” and that both she and Father can provide for Child’s daily physical
needs. Id. at 147, 202-203. In turn, the trial court was well within its
discretion when it found these factors neutral.
Additionally, we find that Mother’s argument that the court did not
properly consider the remaining Section 5328(a) factors to be without merit.
Mother fails to put forth any argument with citation to the record showing that
the court’s conclusions with respect to the remaining best interest factors at
issue are unreasonable or unsupported by the record. Essentially, Mother is
asking this Court to reweigh the evidence and credibility determinations made
by the trial court. This we cannot do. The trial court cited each custody factor,
determined whether the factor was neutral, inapplicable, or weighed in favor
of Mother or Father, and provided its reasoning. Trial Court Opinion, 5/23/22,
at 9-12. The trial court’s findings of fact and determinations regarding
credibility and weight of the evidence are not to be disturbed absent an abuse
of discretion. E.R. v. J.N.B., 129 A.3d 521, 527 (Pa. Super. 2015); C.R.F. v.
S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012); King, 889 A.2d at 632. We
discern no error or abuse of discretion by the trial court.
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In her third issue, Mother argues that the Section 5328 best interest
factors overall favored Mother. Mother’s Brief at 34-36. Specifically, she
claims that the trial court improperly considered Mother’s failure to provide
notice of her relocation when it analyzed Section 5328(a)(16), and that no
other factors favored Father. Id. at 34. Mother claims that the court imposed
a sanction against Mother rather than conducting a best interest analysis. Id.
at 37. We do not find Mother’s argument persuasive.
Contrary to Mother’s assertion, in addition to Section 5328(a)(16), the
trial court found that Section 5328(a)(2) and (15) weighed against Mother.
Under Section 5328(a)(2), the trial court is required to consider “the present
and past abuse” committed by a party or a party’s household member,
“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.” 23 Pa.C.S.A. § 5328(a)(2).
Here, the trial court noted that “Mother previously stated that Stepfather
had abused her, but she partially recanted her statements at trial.” Trial Court
Opinion, 5/23/22, at 9. The court explained it was “concerned about the
current stability” of Mother and Stepfather’s relationship given its unstable
history. Id. The trial court’s stated concern regarding the stability of Mother’s
current relationship reveals that it found this best interest factor against
Mother.
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The record supports the trial court’s finding with respect to Section
5328(a)(2). After her separation from Stepfather in 2020, Mother made a
Facebook post about her relationship with Stepfather. N.T., 5/10/22, at 41;
Father’s Exhibit C. In the post, Mother stated that Stepfather “threw things,
broke things” and sent her into “panic attacks regularly.” Father’s Exhibit C.
She further stated that Stepfather called her “an addict” for taking her
prescribed medications, threatened to kill her, spat on her, threw a wallet at
her face, and charged at her while she was six months pregnant. Id.
At the subject proceeding, Mother testified that what she had written in
the Facebook post is partly true and that she made statements on social media
when she was depressed. N.T., 5/10/22, at 156, 186, 189. Mother testified
that she had suicidal thoughts after separating from Stepfather. Id. at
187-188. Mother agreed that she “did act crazy,” but she did not agree that
she was emotionally and mentally abused. Id. at 186. Mother testified that
Stepfather “threw things,” “probably” broke things, and called her an addict
for taking prescribed medications. Id. at 188-189. Mother testified that she
and Stepfather were in a “bad fight” when she was pregnant, but she did not
believe a knife was pulled on her. Id. at 190-191. Mother acknowledged
that this is the third time that she and Stepfather formed a romantic
relationship. Id. at 199. We find that the record supports the trial court’s
concern about the current stability of Mother and Stepfather’s relationship.
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We discern no abuse of discretion in the trial court’s consideration of this factor
against Mother.
In Section 5328(a)(15), the trial court considers the mental and physical
condition of a party or a party’s household member. 23 Pa.C.S.A.
§ 5328(a)(15). Here, the trial court stated that, in light of Mother’s social
media communications, it is concerned about Mother’s mental health. Trial
Court Opinion, 5/23/22, at 12. The trial court’s concern regarding Mother’s
mental health demonstrates it found this factor against Mother.
The record supports the court’s assessment of Section 5328(a)(15).
Father testified that Stepfather contacted him with concerns “during their
break-up” regarding Mother’s mental health, self-harm, and drug use. N.T.,
5/10/22, at 33. Father testified regarding a series of text messages that
Mother sent to Stepfather, which included a picture of someone’s arm bleeding
from cutting. Id. at 36; Father’s Exhibit A. The text message also contained
the following communication that Mother wrote to Stepfather:
Actually I lied. I am not doing okay at all honestly. Worse than
before.
....
Like[,] bad[,] bad. And I’m only showing you this because idk
[sic]. Someone should know[,] I guess[,] before it gets too bad.
Just in case. I’m still fighting every day. But idk [sic]. I don’t
wanna [sic] be me anymore. I’m so tired. My soul is tired. I’m
a burden to literally everyone. . . .
And no[,] I don’t want you to be there for me right now. But if
something happens[,] I just want you to know that I love you.
And I’m trying. Hard. But idk [sic] if I can do it much longer. So
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if someday I give up, just know that I’m fighting with literally
every breath I have.
N.T., 5/10/22, at 37; Father’s Exhibit A.
On cross-examination, Mother testified that she had suicidal thoughts
when she separated from Stepfather, and that she had “harmed” herself in
November 2020. N.T., 5/10/22, at 188, 197. Mother testified that she had
been prescribed medications for depression, anxiety, and ADHD, but she
stopped taking those medications in October or November 2021. Id. at
155-156. Thus, the record evidence supports the trial court’s stated concern
regarding Mother’s mental health. We find no abuse of discretion by the trial
court in finding this factor against Mother.
With respect to Section 5328(a)(16), the trial court is to consider any
other relevant factor. 23 Pa.C.S.A. § 5328(a)(16). Pursuant to 23 Pa.C.S.A.
§ 5337(j), the court may consider a failure of a party to provide reasonable
notice of relocation as:
(1) a factor in making a determination regarding the relocation;
(2) a factor in determining whether custody rights should be
modified;
(3) a basis for ordering the return of the child to the nonrelocating
party if the relocation has occurred without reasonable notice;
23 Pa.C.S.A. § 5337(j).
Here, we discern no abuse of discretion by the trial court in considering
Mother’s failure to provide notice of relocation under Section 5328(a)(16).
There is no dispute that Mother did not provide Father with reasonable notice
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of relocation in violation of 23 Pa.C.S.A. § 5337(c) when she relocated to Tioga
County, 180 miles from Father’s residence. In this case, the record amply
supports the trial court’s analysis of the best interest factors of Section 5328,
and the court appropriately found Section 5328(a)(2), (15), and (16) did not
favor Mother.
In her fourth issue, Mother argues that the trial court did not adequately
analyze the relocation factors, specifically Section 5337(h)(1), (2), (3), and
(7). Mother’s Brief at 29. We address each of these factors in turn.
With respect to Section 5337(h)(1), pertaining to the nature, quality,
extent of involvement and duration of the child’s relationship with the party
proposing to relocate and the nonrelocating party, Mother contends that the
trial court erred when it did not weigh this factor in favor of relocation. Id. at
31. Specifically, Mother asserts the court discounted the evidence showing
that she has been Child’s primary caretaker since birth, and Child has a close
relationship with her younger brother, who also lives in Mother’s home. Id.
The trial court here found that Section 5337(h)(1) did not favor either
parent, and the record supports its finding. Trial Court Opinion, 5/23/22, at
5. The court explained, “The Child has very close relationships with both
parents, with her sibling, and with the family members and friends of both
parents.” Id. Contrary to Mother’s claim, the court expressly recognized that
Child has a very close relationship with her sibling and Mother. Id. The record
also supports the court’s finding that Child has a very close relationship with
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Father and his family members. Father testified that he has a very good
relationship with Child, and that Child is generally well-behaved. N.T.,
5/10/22, at 72-73. Father testified Child gets along with her extended family
and has a good relationship with Paternal Grandparents. Id. 73. Father
introduced into evidence photographs of Child with Father, her Paternal
Grandparents, and her cousins. Id. at 74. Father testified that he has been
involved in Child’s life since June 2018, participates in overnight weekend
visits with Child, and maintains daily phone contact with the Child. Id. at 79.
Mother testified that Child’s phone calls with Father last between one hour and
one hour and thirty minutes. Id. at 151. Mother also testified that she
believed Father is a “good dad” and that he has been actively involved in
Child’s life. Id. at 147, 209. The record supports the trial court’s assessment
that this factor does not favor either parent given Child’s close relationships
with both Parents, as well as extended family members.
With respect to Section 5337(h)(2), which considers the child’s age,
developmental stage, and needs, and the likely impact of relocation on the
child’s development, Mother claims that the court did not adequately consider
the impact on Child’s development. Mother’s Brief at 30. We disagree. The
trial court weighed this factor in favor of Father, noting that while Mother was
Child’s primary caregiver, Father assisted with childcare responsibilities when
he was not working. Trial Court Opinion, 5/23/22, at 5. The court found that
Child will depend on both Parents for her basic daily needs. Id. The court
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determined that relocation would have a negative impact on Child’s physical,
educational, and emotional development in that the consistency and
frequency of Father’s involvement will be broken. Id.
The record supports the trial court’s finding. Prior to Mother’s move to
Tioga County, Father participated in overnight weekend visits with Child, and
spent time with Child one or two times per week when he picked her up from
daycare and preschool. N.T., 5/10/22, at 24, 39-40. Father testified that he
has a very good relationship with Child. Id. at 72-73. Significantly, Mother
testified she believed Father is a “good dad” and that he is “loving and
nurturing,” though she did not believe him to be stable or consistent. Id. at
147, 166. While Father participated in daily phone contact with Child since
Mother’s relocation, there is no evidence that Father would be able to maintain
the frequency and consistency of in-person custodial time with Child given
Mother’s relocation 180 miles from his home. Thus, we find no abuse of
discretion regarding this factor.
With respect to Section 5337(h)(3), which pertains to the feasibility of
preserving the relationship between the nonrelocating party and the child
through suitable custody arrangements, Mother argues that the parties would
be able to maintain custody in their consent order. Mother’s Brief at 30. Here,
the trial court stated that “[f]or reasons previously stated, this factor weighs
against relocation.” Trial Court Opinion, 5/23/22, at 6. Earlier in its opinion,
the trial court stated:
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With a distance between residences of about 180 miles and
one-way travel time of about three and one half hours, the
consistency and frequency of Father’s involvement would be
broken, threatening significant impairment of Father’s ability to
exercise his custodial rights.
Id. at 4. We discern no abuse of discretion.
Regarding Section 5337(h)(7), Mother claims the trial court did not
specify whether this factor is neutral or weighed against relocation. Mother’s
Brief at 30. Mother asserts that the court did not address the evidence that
Child moved from a public housing apartment to a three-bedroom home and
that the improvement of Mother’s financial situation would enhance the Child’s
quality of life. Id.
Section 5337(h)(7) requires the trial court to consider whether the
relocation will enhance the general quality of life for the child, including, but
not limited to, financial or emotional benefit or educational opportunity. 23
Pa.C.S.A. § 5337(h)(7). Here, the trial court provided the following
reasoning:
The Child will not benefit financially because both parents can now
provide financial support. The Child will benefit emotionally if
Mother is happier, however, the move will also be detrimental to
her emotional wellbeing because Father will lose access to share
in her educational and other activities. There is no convincing
evidence that the school system in Mansfield is better than that in
the Rouseville area.
Trial Court Opinion, 5/23/22, at 7. While the court did not expressly state its
conclusion, it is evident from the court’s analysis that it determined this factor
to be neutral.
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The record supports the trial court’s consideration of Section
5337(h)(7). Mother testified that she has an extremely close bond with Child,
and she believes her current home in Tioga County is “substantially better”
than the public housing in Clarion County. N.T., 5/10/22, at 166-168. Mother
also testified that she assists Stepfather with a car detailing business from
their home, and she is working on obtaining a notary license. Id. at 158-159.
Additionally, Father testified that he and Child have a very good
relationship. Id. at 73. Father testified that he is self-employed as he
operates a tree service company and previously worked at a welding shop.
Id. at 9. Father testified that he has “four jobs lined up” and has “estimates
scheduled in the coming weeks.” Id. at 129. Mother acknowledged that
Father was actively involved in Child’s life since June 2018, outside of the
pendency of the PFA. Id. at 209. Mother testified that Father is loving and
nurturing, though she does not believe he is stable or consistent. Id. at 166,
173. The record demonstrates that both Parents have a source of income,
which supports the trial court’s finding that Child will not benefit financially as
both Parents can provide financial support. The record further demonstrates
that both Parents have a close relationship with the Child. Thus, the trial court
appropriately found this factor neutral.
Accordingly, we discern no error or abuse of discretion by the trial court
in finding that Mother’s relocation would not be in Child’s best interest and in
awarding primary physical custody to Father.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/3/2023
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