N.M. v. R.M.P. ( 2019 )

J-A14036-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
N.M. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
R.M.P., :
:
Appellant : No. 275 WDA 2019
Appeal from the Order Entered January 22, 2019
in the Court of Common Pleas of Blair County
Orphans' Court at No(s): 2010 GN 4608
BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 30, 2019
R.M.P. (“Father”) appeals from the Order granting the Petition filed by
N.M. (“Mother”) to allow her to relocate from Hollidaysburg, Blair County,
Pennsylvania, to Alpharetta, Georgia, with the parties’ son, A.J.P. (“Child”),
born in September 2008. We affirm.
The record in this matter reflects that Mother and Father were never
married. On December 8, 2010, Mother filed a Complaint for custody of Child.
After conducting an intake conference, the trial court entered a Custody Order
on February 18, 2011, directing that the parties would share legal custody of
Child; that Child would reside with Mother, who would have primary physical
custody; and that Father would have partial physical custody in accordance
with a schedule.
Following a procedural history not relevant to this appeal, including
several modifications, Father filed a Petition for Special Relief on October 26,
J-A14036-19
2018, based on Mother’s stated intention to relocate to Georgia with Child. 1
Father requested that Child not be permitted to relocate with Mother to
Georgia, or that Child reside with Father, if Mother was permitted to relocate.
The trial court held a hearing on the Petition on November 5, 2018.2 On
November 8, 2018, the trial court entered an Order providing that the parties
would continue to maintain the status quo, with Child remaining in his school
pending further agreement of the parties or pending further order of court.
The trial court explained the procedure surrounding the Petition for
Relocation as follows:
Mother filed a Petition to Relocate to Alpharetta, Georgia[,]
on October 31, 2018. Father was served with the Proposed
Relocation on November 14, 2018. Father did not file any
Objections earlier than thirty days[,] as mandated by [23
Pa.C.S.A. § 5337(d)(1), (2)].
[On December 17, 2018,] Mother filed a Petition to Confirm
Relocation[,] and a hearing was scheduled for January 7, 2019 ….
Prior to the January 7, 2019 hearing, Father filed a Counter-
Affidavit opposing [r]elocation [on December 20, 2018, with a
Petition for Modification of Custody]. Father’s Counter-Affidavit
was dated December 9, 2018, but was not filed with the [trial
court] until December 20, 2018. Mother objected to an
[e]videntiary [h]earing being held, as Father’s Counter-Affidavit
was not filed within the aforementioned thirty (30) day period[, in
violation of section 5337(d)(4)].
____________________________________________
1 Mother had not yet filed her Petition for Relocation at this time, but had
apparently stated her intention to do so.
2 In his Petition for Special Relief, Father also challenged Mother’s temporary
relocation to Woodbury, Bedford County. Relevantly, Mother continued to
take Child to his school in Blair County.
-2-
J-A14036-19
The [trial court] notes the [] [p]arties have been involved in
countless [c]ourt proceedings, including two [e]videntiary
hearings and many [s]pecial [r]elief hearings. However, [the trial
court] concluded that an [e]videntiary [h]earing should
nonetheless be held, and the same was conducted on January 7,
2019. [] Child’s interview was then conducted on January 9,
2019.
Trial Court Opinion, 3/5/19, at 2-3.3
Based on the evidence presented at the hearing on Mother’s Petition for
Relocation, the trial court found as follows:
The [p]arties have had a tumultuous relationship laden with
conflict. They were never married; however, they did reside
together in March [] 2009. At that time, when [Child] was
approximately six (6) months old, Mother accused Father of
domestic violence, left the residence, and moved in with her
parents. (T.T. 1/7/19, p.p. 6-7).
The [p]arties reunited thereafter, but separated again in
November [] 2010[,] upon additional claims by Mother of
domestic abuse perpetrated by Father. (T.T. 1/7/19, p.p. 8-9).
Father’s threatening conduct against Mother continued until she
____________________________________________
3 In her brief, Mother asserts that we should not address Father’s issues on
appeal, and we should affirm the trial court’s Order due to Father’s failure to
follow proper procedure in addressing Mother’s Petition for Relocation under
section 5337. See Mother’s Brief at 3, 9 (citing 23 Pa.C.S.A. § 5337(d)(4)
(providing that “[i]f a party who has been given proper notice does not file
with the court an objection to the relocation within 30 days after receipt of the
notice [of the proposed relocation] but later petitions the court for review of
the custodial arrangements, the court shall not accept testimony challenging
the relocation.”)). As the trial court conducted the custody relocation
evidentiary hearing and rendered a decision, we decline to do so. The trial
court explained that its departure from the strict enforcement of the statute
was in the interest of resolving the custody issues between the parties. The
court was aware of Father’s objections to Mother’s proposed relocation, since
he had filed his objections in his Petition for Special Relief before Mother had
filed her Petition for Relocation; thus, the trial court deemed Father’s
objections timely filed. See N.T., 1/7/19, at 2-3 (citing Trial Court Order,
11/5/18). We will not disturb the trial court’s decision.
-3-
J-A14036-19
filed for (and after a hearing, was granted) a Protection from
Abuse [(“PFA”)] Order for a period of approximately eighteen
months. (T.T. 1/7/19, p. 11).
Father moved out of the Blair County area, away from
[Child], on two separate occasions for up to six months on each
occasion. (T.T. 1/7/19, p. 12). Mother testified that she kept
records[,] which document Father missing over 500 scheduled
custody visits over the past eight years. [(T.T., 1/7/19, at 13.]
Mother also testified that she was requesting a move to
Alpharetta, Georgia, to reside with her brother and his family.
[(T.T., 1/7/19, p. 18-20)].
Mother testified she had been employed in Blair County for
six years as an aide to [a government official], and then had
opened her own business. (T.T. 1/7/19, p. 21). She was unable
to sustain that business, and it was closed. [(T.T., 1/7/19, at 19-
20)]
Mother presented evidence that her move to Georgia was
motivated to be close to her family and to provide her with an
opportunity to seek an advanced degree[.] (T.T. 1/7/19, p. 21).
While in Blair County, Mother attended each of [Child’s] parent-
teacher conferences, while Father has attended none. (T.T.
1/7/19, p. 15).
Trial Court Opinion, 3/5/19, at 3-4.
At the hearing, on cross-examination, Mother testified that she had
agreed to give Father two overnight visits with Child per month, because she
was concerned about Child sleeping in Father’s home when Father’s former
girlfriend, an alcoholic, was present. N.T., 1/7/19, at 40-41. Mother testified
that she also had given Father, by agreement, two additional, one-week-long
vacation custodial periods with Child during 2018, so that Father could take
Child to Orlando. Id. at 41.
-4-
J-A14036-19
In the January 22, 2019 Order, the trial court granted Mother’s Petition
for Relocation. The Order did not disturb the existing shared legal custody of
Child. Additionally, the Order continued primary physical custody with Mother,
and awarded Mother and Father, equally, shared physical custody during the
summer months, commencing the first week after the end of the school year.
The Order stated that, because of the distance, the parties would have a two-
week on/two-week off period of custody in the summer, and that they would
be equally responsible for transportation. The trial court awarded Father a
one-week period of custody over the Christmas holiday break every year,
beginning in 2019. During even-numbered years, Mother would have Child
for Christmas Eve and Christmas Day, and Father’s week of custody would
begin on December 26th. During odd-numbered years, Father would have
Child for Christmas Eve and Christmas Day, and for the balance of one week.
Mother was required to bring Child to Blair County no less than once per year
for a five-day visit with Father, with Mother responsible for transportation.
Mother was also responsible for the full cost of the Christmas visit between
Child and Father. Mother and Father were to keep each other informed of
their current address and telephone number. They were also required to keep
each other informed of Child’s progress in school, school activities, and general
welfare, and were to consult with one another concerning major decisions
affecting Child.
-5-
J-A14036-19
On February 1, 2019, Father filed a pro se Motion for Reconsideration.
On February 15, 2019, Father a pro se Notice of Appeal, along with a Concise
Statement of errors complained of on appeal, pursuant to Pa.R.A.P.
1925(a)(2)(ii).
On February 20, 2019, Father, acting pro se, filed an Emergency Motion
for Stay pending appeal. Specifically, Father requested a stay of the January
22, 2019 Order to prevent Mother from relocating to Georgia with Child while
the appeal was pending, so that the trial court could consider all of the custody
relocation factors under section 5337(h). On February 25, 2019, the trial
court denied the Motion, and indicated that its opinion was forthcoming. The
trial court stated as follows:
Father was represented by [c]ounsel ([] Kristen Anastasi[,
Esquire (“Attorney Anastasi”),]) at the [e]videntiary [h]earing.
The post-hearing filings have been filed by [Father, pro se]. The
[trial court’s] office contacted Attorney Anastasi regarding this
[h]ybrid [r]epresentation, and was informed Attorney Anastasi is
no longer involved in the case. Attorney Anastasi was instructed
to file a [p]raecipe to [w]ithdraw or some other document so that
the [r]ecord may evidence her [w]ithdrawal.
Trial Court Opinion, 3/5/19, at 1-2. The trial court subsequently entered an
Order providing that the appearance of Attorney Anastasi as counsel for Father
in this matter was withdrawn. On March 5, 2019, the trial court filed its Rule
1925(a) Opinion, which included a discussion of the section 5337(h) factors.
On March 8, 2019, Andrew R. Carson, Esquire (“Attorney Carson”),
entered his appearance on behalf of Father. On March 12, 2019, Attorney
Carson filed an Application to amend Father’s pro se Concise Statement, which
-6-
J-A14036-19
this Court granted. On March 21, 2019, Father, through counsel, filed an
Amended Concise Statement.
Father raises the following issues for our review:
I. Whether the trial court erred in failing to perform an analysis of
the factors enumerated in 23 Pa.C.S.[A.] § 5328(a) in granting []
[M]other’s [P]etition to relocate from Pennsylvania to Georgia[,]
as the relocation necessarily modified custody and interfered with
[] [F]ather’s exercise of custodial rights[?]
II. Whether the trial court erred in granting [] [M]other’s [Petition]
for Relocation from Pennsylvania to Georgia without performing
an analysis of all of the factors enumerated in 23 Pa.C.S.[A.]
§ 5337(h)[?]
Father’s Brief at 6 (issues renumbered).
In custody cases under the Child Custody Act, (“the Act”), 23 Pa.C.S.A.
§§ 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).
The discretion that a trial court employs in custody matters should
be accorded the utmost respect, given the special nature of the
proceeding and the lasting impact the result will have on the lives
of the parties concerned. Indeed, the knowledge gained by a trial
-7-
J-A14036-19
court in observing witnesses in a custody proceeding cannot
adequately be imparted to an appellate court by a printed record.
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (citation omitted).
Further, “[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).
“When a trial court orders a form of custody, the best interest of the
child is paramount.” S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014)
(citation omitted); see also 23 Pa.C.S.A. §§ 5328, 5338. In assessing the
child’s best interest, the trial court must consider the custody factors set forth
in section 5328(a) of the Act, which provides as follows:
§ 5328. Factors to consider when awarding custody
(a) Factors.—In ordering any form of custody, the court shall
determine the best interest of the child by considering all relevant
factors, giving weighted consideration to those factors which
affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and
another party.
(2) The present and past abuse committed by a party or
member of the party’s household, whether there is a
continued risk of harm to the child or an abused party and
which party can better provide adequate physical
safeguards and supervision of the child.
-8-
J-A14036-19
(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.
(14) The history of drug or alcohol abuse of a party or
member of a party’s household.
-9-
J-A14036-19
(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.A. § 5328(a). “All of the factors listed in section 5328(a) are
required to be considered by the trial court when entering a custody order.”
J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis omitted);
see also 23 Pa.C.S.A. § 5323(d) (providing that, when a trial court awards
custody, it must “delineate the reasons for its decision on the record in open
court or in a written opinion or order.”). However, “[i]n 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.”
A.V. v. S.T., 87 A.3d 818, 823 (Pa. Super. 2014) (citation and quotation
marks omitted).
Additionally, section 5337 of the Act sets forth the procedures and
standards for relocation requests. The Act requires the trial court to consider
the following in a relocation proceeding:
(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.
- 10 -
J-A14036-19
(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.A. § 5337(h).
Moreover, the party proposing relocation has the burden to prove that
relocation will serve the child’s best interest. 23 Pa.C.S.A. § 5337(i). Each
party, however, has the burden of establishing “the integrity of that party’s
- 11 -
J-A14036-19
motives in either seeking the relocation or seeking to prevent the relocation.”
23 Pa.C.S.A. § 5337(i)(2).
While Father identifies two issues in his Statement of Questions
Involved, he addresses them simultaneously in the Argument section of his
brief. On review, however, we will address Father’s claims separately.
First, Father argues that the trial court did not consider the custody
factors set forth under section 5328(a). Father’s Brief at 25. Father only
specifically challenges the trial court’s consideration of the factors set forth
under subsections 5328(a)(14) and (15), regarding whether the prospective
household members in Georgia have a history of drug or alcohol abuse, or
other mental or physical health conditions. Id. at 23. Father asserts that the
record is deficient, in that it contained only the names of the family members
with whom Child would be living, and Affidavits from them stating that they
have never been convicted of any of the enumerated offenses (or their
- 12 -
J-A14036-19
analogues) on Pennsylvania’s Criminal Record/Abuse History Verification. Id.4
Father’s argument concerning these subsections, which includes only
two sentences, is not properly developed. See Pa.R.A.P. 2119(a) (stating that
the argument shall include “such discussion and citation of authorities as are
deemed pertinent.”). Father does not cite to any evidence that members of
Mother’s prospective household have problems with drugs or alcohol or any
other mental or physical health issues, nor did he present evidence of such
problems at the evidentiary hearing. See Bombar v. West Am. Ins. Co.,
932 A.2d 78, 93 (Pa. Super. 2007) (stating that “[t]his Court will not act as
counsel and will not develop arguments on behalf of an appellant.”).
Additionally, during the hearing, Father conceded that Mother’s brother, with
____________________________________________
4 Father also claims that the trial court erred by failing to address both the
custody factors and relocation factors simultaneously. Father’s Brief at 20,
23. But see id. at 22 (acknowledging that the factors identified in sections
5328(a) and 5337(h) overlap). Although the trial court did not specifically
address all of the factors in its January 22, 2019 Order, we observe that Father
retained new counsel after the trial court had filed its Rule 1925(a) Opinion,
which explained its consideration of the section 5337(h) relocation factors.
This Court subsequently permitted Attorney Carson to file an Amended
Concise Statement, and allowed him to challenge the trial court’s analysis of
the section 5337(h) relocation factors, as set forth in its Rule 1925(a) Opinion.
The trial court also noted, in its 1925(a) Opinion, that it had intended to “fine-
tune” its January 22, 2019 Order after a subsequent hearing, but Father’s
appeal divested it of jurisdiction. Trial Court Opinion, 3/5/19, at 8. Thus,
Father had the opportunity to address the trial court’s reasoning under section
5337(h), and therefore, under the unique procedural posture of this case, we
will not remand the matter to the trial court for the filing of a separate opinion
restating its analysis.
- 13 -
J-A14036-19
whom Child would be living in Georgia, is a “good guy,” and that “[i]t is not
the issue of is this home appropriate [sic]….” N.T., 1/7/19, at 68. Moreover,
had any such evidence been proffered at the hearing, the custody
considerations addressed by subsections 5328(a)(14) and (15) would have
been part of the consideration of the relocation factor at subsection
5337(h)(10), which directs the court to consider “[a]ny other factor affecting
the best interest of the child.”5 Therefore, Father is not entitled to relief on
his first claim.
Next, Father argues that the trial court’s findings as to the section
5337(h) relocation factors are not supported by the record. Father’s Brief at
25. Specifically, Father raises challenges to subsections 5337(h)(4), (6), and
____________________________________________
5 We additionally note that the award of custody did not change substantially
in the instant case. As in the previous custody Orders, Mother and Father
were directed to share legal custody, and Mother would maintain primary
physical custody while Father would maintain partial physical custody. See
cf. A.V. v. S.T., 87 A.3d 818, 823-25 (Pa. Super. 2014) (vacating order
granting mother’s relocation and remanding for further proceedings, where
granting relocation significantly changed father’s custody from shared physical
custody to partial physical custody, and thus made a new award of custody,
without proper consideration of the section 5328(a) custody factors). Here,
the award of custody remained the same, with only a change in schedule;
Child requested to relocate to Georgia with Mother; and the trial court took
into consideration the relocation factors under 5337(h), which, Father
concedes, overlap with those contained in section 5828(a). Therefore, under
the facts of this case, we are not “deprived of explication and guidance” by
the trial court on these matters, and we conclude there is no need to remand
to the trial court to provide a separate analysis of the section 5328(a) custody
factors. Cf. id. at 823.
- 14 -
J-A14036-19
(7). See id. at 25-27.6 Regarding subsection 5337(h)(4), Father claims that
Child’s interview focused almost entirely on his preference, and encompasses
only seven pages of transcript. Id. at 25. Father also claims that Child’s
statements that it would be “cool” to live in Georgia because he has “family
down there” do not support the trial court’s conclusion that Child unequivocally
supports the relocation. Id. at 25-26.
As to subsection 5337(h)(6), Father contends that Mother had only been
looking for employment for a few weeks prior to the relocation hearing. Id.
at 26. According to Father, Mother does not have a concrete plan concerning
her education and employment in Georgia, and does not know where she and
Child will live after the year they spend at her brother’s house. Id. at 26-27.
Regarding subsection 5337(h)(7), Father argues that Mother’s research
regarding schools for Child on schooldigger.com and U.S. News and World
Report is insufficient to support the trial court’s conclusion that the schools in
Georgia “appear to be very good.” Id. at 27.
In its Rule 1925(a) Opinion, the trial court stated as follows regarding
the relocation factors under 23 Pa.C.S.A. § 5337(h):
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.
____________________________________________
6We note that Father’s arguments concerning these subsections are largely
underdeveloped. See Pa.R.A.P. 2119(a).
- 15 -
J-A14036-19
[Child] has always resided with Mother, and Mother has provided
the vast majority of his care. Previously[,] Father had been
absent for multiple periods of up to six months of [] [C]hild’s life[;]
however[,] recently[,] Father’s contact and relationship have
improved. This factor, after further consideration of Mother’s
motives for the move, greatly favor keeping [] [C]hild with
Mother.
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.
[Child] is ten years of age and appears to be at an appropriate or
even advanced state of emotional and educational development.
He has some medical issues, but Mother has adequately cared for
them and has made arrangements for the care to continue in
Georgia. The [r]elocation will not impair [] [C]hild in any way.
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 [p]arties.
Based on the distance (Pennsylvania to Georgia)[,] this factor is
of special importance. It should be noted that Father previously
held employment that twice took him away from [] [C]hild for
extended periods of time. If the [r]elocation [were] granted, []
[C]hild would spend significant time with Father during the
summer, and major holidays. The [p]arties would equally share
the expense of the visits to return to Blair County to visit Father.
4. The child’s preference, taking into consideration the age
and maturity of the child.
The [c]ourt interviewed [Child] and found him [to be] intelligent,
articulate and very aware of his parent’s [sic] situation. He
unequivocally supported the move to Georgia.
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.
- 16 -
J-A14036-19
The [trial court] finds that recently the [p]arties have cooperated
in allowing [Child] to be with the other parent.
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.
The [r]elocation will absolutely allow Mother to enhance her
quality of life. In Blair County, Mother had made sincere efforts
at gaining employment (six years with [the government official]
and opening her own business)[;] however[,] those efforts,
apparently through no fault of Mother, have not prospered. The
move to Georgia is supported by her family by providing
significantly improved housing for Mother and [Child]. Further,
Mother has researched additional educational opportunities for
herself that will prepare her for better employment. The [trial
court] finds the [r]elocation represents a better opportunity for
Mother, financially and emotionally, than that of her current
situation.
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.
Yes, see Factor #6 above. Additionally, Mother has researched
the educational alternative for [Child in Georgia,] and those
[Georgia] schools appear to be very good.
8. The reasons and motivation of each party for seeking or
opposing the relocation.
Mother wants to [r]elocate for better opportunities for herself and
[Child]. Father opposes because he doesn’t want the distance
between himself and [Child]. The [trial court] finds no fault with
either [p]arty.
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.
Mother testified, and the [trial court] accepted, that she was
emotionally and physically abused by Father in the past[,] which
necessitated seeking a [PFA] Order. That PFA was granted after
- 17 -
J-A14036-19
[a] hearing … and lasted eighteen months[,] until 2015. The [trial
court] finds no recent abuse since then.
10. Any other factor affecting the best interest of the child.
The [trial court’s] basis for allowing the [r]elocation is that none
of the §[]5337(h) [f]actors favor[s] Father[,] and several of the
[f]actors, as detailed above, greatly favor Mother. The entirety of
the [p]arties’ custody history is that Mother has provided the great
majority of emotional and educational support to [Child].
It would not be in [Child’s] best interest to transfer residential
custody from Mother to Father. Therefore, the alternatives are
reduced to allowing Mother to [r]elocate with [Child,] or to deny
[r]elocation altogether, resulting in Mother and [Child] staying in
the Blair County, Pennsylvania locale.
There is no doubt the Mother’s relocation to Georgia represents a
better alternative than remaining in Pennsylvania. Her
educational opportunities appear logical and planned. The move
is supported by her family, who will provide a vastly improved
residential environment for Mother and [Child]. Mother and
[Child] will have substantial family support in all aspects of their
li[ves] (T.T. 1/7/19, p.p. 22, 23). The [trial court] found Mother’s
testimony credible on these issues.
While the [r]elocation certainly represents a move that is in the
best interests of [Child], it unfortunately represents a potential
disadvantage in the relationship between Father and [Child]. The
substantially increased distance creates a challenge to preserve
the [f]ather and [s]on relationship. Being cognizant of the
importance of this, this [c]ourt’s Order will provide [for] weekly
contact via videoconferencing, as well as extended summer and
holiday periods of custody with Father.
Trial Court Opinion, 3/5/19, at 4-8.
Upon review, we conclude that the trial court’s findings and conclusions
are supported by competent evidence, and we discern no error of law or abuse
of discretion by the trial court in granting Mother’s Petition for Relocation. See
C.R.F., supra. Further, we decline Father’s invitation to reconsider the weight
- 18 -
J-A14036-19
to be afforded to Child’s preference, as the trial court’s determination on this
matter is supported by the evidence of record. See Ketterer, 902 A.2d at
540 (stating that “[t]he weight to be attributed to a child’s testimony can best
be determined by the judge before whom the child appears.”); see also
M.J.M. v. M.L.G., 63 A.3d 331, 339 (Pa. Super. 2013) (stating that it is within
the trial court’s discretion based on the record before it to determine the
relevant weight to give each of the factors in a custody action).
Based upon the foregoing, we affirm the trial court’s Order granting
Mother’s Petition for Relocation.
Order affirmed.
Judge Ott joins the memorandum.
Judge Kunselman files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/30/2019
- 19 -