M.Y. v. H.Y. ( 2021 )

J-S51037-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
M.Y. : IN THE SUPERIOR COURT OF
Appellant : PENNSYLVANIA
:
v. :
:
H.Y. :
: No. 911 MDA 2020
Appeal from the Order Entered June 12, 2020
In the Court of Common Pleas of Dauphin County Civil Division at No(s):
2017-CV-8550-CU
BEFORE: MURRAY, J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED JANUARY 28, 2021
M.Y. (Father) appeals from the order entered in the Dauphin County
Court of Common Pleas, granting him and H.Y. (Mother) shared legal custody
of their children, L.Y. (born in December 2007), R.Y. (born in April 2009), and
P.Y. (born in January 2012) (collectively, the Children), and Mother primary
physical custody, pursuant to her notice of proposed relocation to Wantagh,
Nassau County, New York and petition for modification. After review, we
affirm the trial court’s order.
The parties married in September 2009, and Father filed for divorce in
August 2017. On December 12, 2017, Father initiated the within matter and
filed a complaint for shared child custody, along with a petition for emergency
custody relief. On February 21, 2018, the parties settled on a 2-2-5-5 shared
physical custody schedule, with Mother having custody Mondays and
Tuesdays, Father having custody Wednesdays and Thursdays, and the parties
alternating weekends. See N.T., 6/8/20, at 9, 78; Order of Court – Parenting
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Plan, 2/21/18, at 2 (unpaginated). At the time of the underlying June 8, 2020,
custody hearing, the parties’ divorce was not finalized. N.T., 6/8/20, at 5, 78.
The trial court summarized the relevant procedural and factual history
as follows:
On February 26, 2020, [Mother] filed a Notice of Relocation
along with a Petition for Modification of the February 21, 2018,
Parenting Plan, as supplemented by orders dated April 18, 2019,
May 10, 2019, and September 11, 2019. [Mother sought primary
physical custody of the children, and sought to relocate with them
to Wantagh, New York.]
* * *
Father and Mother separated in August 2017. Mother stayed
in the former marital home, and Father [vacated the home in
November 2017.1] Mother hoped to keep the family home
through equitable distribution as part of the divorce, but due to
Father’s failure to pay the mortgage and his support obligations in
a timely manner the home was placed in foreclosure and was
scheduled to be sold at a Sheriff’s sale in July 2020. Mother then
sought to relocate to Wantagh, New York, where Father and
Mother are both originally from,[2] feeling it would benefit the
[C]hildren and Mother emotionally and financially. Mother
proposes to purchase a home with her paramour, [T.C.], who is a
New York City firefighter. Since separation, Father and Mother
have shared physical custody of the [C]hildren pursuant to a 2-2-
5-5 schedule[.] The [C]hildren settled into the custody schedule,
which satisfactorily met their needs. In March 2020, Father was
____________________________________________
1 See Father’s Complaint for Shared Child Custody, 12/12/17, at ¶ 6.
2 Father grew up on Long Island, New York near Wantagh. N.T., 6/8/20, at
24. Mother testified she moved to Long Island after high school and lived
there for eight years. Id. at 24.
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arrested during his parenting time[3] prompting Mother to file an
Emergency Petition for Special Relief which the [c]ourt denied.
Opinion in Support of Order Pursuant to Rule 1925(a), 8/17/20, at 1-2
(1925(a) Op.).4
The trial court conducted a hearing on June 8, 2020. Mother and Father,
represented by counsel, each testified on their own behalf. In addition, Mother
presented the testimony of her boyfriend, T.C., and her father, H.H. — the
Children’s maternal grandfather. Father presented the testimony of his
mother, P.Y. — the Children’s paternal grandmother.5 The court further spoke
with the oldest child, L.Y., in camera, on June 11, 2020.6
Thereafter, by order dated and entered June 12, 2020, the trial court
awarded the parties shared legal custody, and Mother primary physical
____________________________________________
3Father was arrested on an outstanding bench warrant related to a business
deal and/or contract in Virginia. N.T., 6/8/20, at 104-09; see also
Defendant’s Exhibit 14.
4 We note the trial court issued two opinions. First, it filed a 14-page
Memorandum Opinion on June 12, 2020, on the same day as the underlying
order. We cite to this opinion, infra, as “Memo. Op.” The court also filed, on
August 17, 2020, a 4-page Opinion in Support of Order Pursuant to Rule
1925(a), which incorporates the June 12th memorandum opinion.
5The proceeding was conducted via video conference due to the COVID-19
pandemic. N.T., 6/8/20, at 1.
6 We observe that no transcript of L.Y.’s interview was included as part of the
certified record. Nonetheless, there does not appear to be any dispute that
L.Y. indicated her desire to retain the status quo.
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custody commencing August 17, 2020, pursuant to her notice of proposed
relocation to Wantagh, New York and petition for modification. The court
granted Father partial physical custody during the school year: two weekends
each month,7 and winter and spring recess. During the summer, the court
further granted Father partial physical custody from seven days after the last
day of the school year until fourteen days prior to the start of the next school
year. The court additionally provided for, inter alia, a holiday schedule; a
custodial exchange location, if unable to be agreed upon; reasonable
telephone, video, and/or email contact; and individual counseling for the
Children, as needed. As stated above, the court issued a contemporaneous
Memorandum Opinion, which addressed both the statutory relocation and
custody factors.
On July 2, 2020, Father filed a timely, counseled 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).
Father raises the following issue for our review:
Whether the Trial Court erred as a matter of law and abused its
discretion by approving Mother’s relocation and failing to properly
apply the necessary factors in determining if the proposed
relocation is in the best interests of the subject minor children.
____________________________________________
7 The court provided, “Father’s weekend custodial periods during the school
year shall include all three-day or extended weekend breaks, which will then
count toward Father’s monthly weekend custodial periods.” Custody Order –
Parenting Plan, 6/12/20, at ¶13.
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Father’s Brief at 4.
We note the relevant standard of review:
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).
This Court consistently has held:
[T]he discretion that a trial court employs in custody matters
should be accorded the utmost respect, given the special nature
of the proceeding and the lasting impact the result will have on
the lives of the parties concerned. Indeed, the knowledge gained
by a trial court in observing witnesses in a custody proceeding
cannot adequately be imparted to an appellate court by a printed
record.
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (citation omitted).
In addition,
[a]lthough 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.
M.A.T. v. G.S.T., 989 A.2d 11, 18-19 (Pa. Super. 2010) (en banc) (citations
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omitted).
The paramount concern in any custody case under the Child Custody
Act8 is the best interests of the child. See 23 Pa.C.S. §§ 5328 (“In ordering
any form of custody, the court shall determine the best interest of the child
by considering all relevant factors . . . .”), 5338 (“Upon petition, a court may
modify a custody order to serve the best interest of the child.”).
Section 5323 of the Act provides for the following types of awards:
(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 is 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(a)(1)-(7).
Section 5328(a) sets forth the best interest factors that the trial court
must consider in awarding custody:
§ 5328. Factors to consider when awarding custody
____________________________________________
8 23 Pa.C.S. §§ 5321-5340.
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(a) Factors.—In ordering any form of custody, the court
shall determine the best interest of the child by considering all
relevant factors, giving weighted consideration to those factors
which affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and
another party.
(2) The present and past abuse committed by a party or
member of the party’s household, whether there is a
continued risk of harm to the child or an abused party and
which party can better provide adequate physical safeguards
and supervision of the child.
(2.1) The information set forth in section 5329.1(a)(1)
and (2) (relating to consideration of child abuse and
involvement with protective services).
(3) The parental duties performed by each party on
behalf of the child.
(4) The need for stability and continuity in the child’s
education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on
the child’s maturity and judgment.
(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.
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(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or
ability to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with one
another. A party’s effort to protect a child from abuse by
another party is not evidence of unwillingness or inability to
cooperate with that party.
(14) The history of drug or alcohol abuse of a party or
member of a party’s household.
(15) The mental and physical condition of a party or
member of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S. § 5328(a)(1)-(16).
Furthermore, where a parent requests relocation of a child, the trial
court must consider the following ten relocation factors set forth in 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.
(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.
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(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)(1)-(10).
Further, with regard to the custody and relocation factors, we have
stated as follows:
“All of the factors listed in [S]ection 5328(a) are required to be
considered by the trial court when entering a custody order.”
Section 5337(h) requires courts to consider all relocation factors.
The record must be clear on appeal that the trial court considered
all the factors. The record must be clear on appeal that the trial
court considered all the factors.
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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.[ ] § 5323(d). Additionally,
“[S]ection 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.” . . .
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.” A court’s
explanation of reasons for its decision, which adequately
addresses the relevant factors, complies with Section 5323(d).
A.V. v. S.T., 87 A.3d 818, 822-23 (Pa. Super. 2014) (some citations omitted).
In its opinion accompanying the underlying order, the trial court
addressed the custody factors pursuant to Section 5328(a) and relocation
factors pursuant to Section 5337(h). The court stated as follows:
Relocation Factors
Relocation Factor 1: The nature, quality, extent of
involvement and duration of the children’s relationships
with the party proposing to relocate and with the
nonrelocating party, siblings and other significant persons
in the children’s lives.
Both parents currently live in the Hummelstown area and
share physical custody of [the Children], since the entry of the
February 21, 2018, custody order. The [C]hildren have an
attachment to Mother, Father, and the Hummelstown community.
Mother and Father live within the same school district, which
allows both parents to remain actively involved in the [C]hildren’s
lives and for [the Children] to remain actively involved in the life
of their community.
The [C]hildren have an equal relationship with both parents
in terms of the parent’s extent of involvement and duration. The
nature and quality of each parent’s relationship with [the Children]
does not favor one parent over the other. The [C]hildren also
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have significant relationships from their school and sports teams
that would be terminated by the proposed relocation.
Relocation Factor 2: The age, developmental stage, and
needs of the children and the likely impact the relocation
will have on the children’s physical, educational and
emotional development, taking into consideration any
special needs of the children.
[L.Y.] (12), [R.Y.] (11), and [P.Y.] (8) are relatively young in
age, with the older two in the early stages of middle school. Their
physical development is well taken care of in the [C]hildren’s
current location, with [L.Y.] and [R.Y.] active in sports. The court
anticipates that similar physical opportunities are available in New
York. The court further believes that availability of extended
family on both sides in the Wantagh area, notably those of the
same age, would emotionally assist the [C]hildren with the
transition.
Educationally, [the Children] have done well. [L.Y.] was on
the honor roll for academics and [R.Y.] and [P.Y.] regularly receive
outstanding as their scores. This might ordinarily argue for
maintaining the status quo educationally. However, the court
finds that the Massapequa School District[9] in New York is well-
rated and is similar if not better than South Hanover Elementary
and Lower Dauphin Middle School. Given [the Children’s]
scholastic achievement and young ages, it is likely they will
continue to be successful in a new school setting.
Relocation Factor 3: The feasibility of preserving the
relationship between the nonrelocating party and the
children through suitable custody arrangements,
considering the logistics and financial circumstances of the
parties.
The proposed relocation, depending on exactly where Mother
would purchase a home, would create a separation of
approximately three hours and fifteen minutes from Father’s
____________________________________________
9 While the court references the Massapequa School District throughout its
Memorandum Opinion and Custody Order, we observe that Mother presented
evidence with regard to the Wantagh Union Free School District. See Mother’s
Exhibits 10 through 13; see also N.T., 6/8/20, at 35-36.
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current residence. This does create a significant inconvenience
and would necessitate a change from the current custody
schedule. The parents do have the financial and scheduling ability
to confront the challenge that distance creates, although the court
recognizes the cost of transportation is not insignificant. Mother
has suggested a custody schedule that would permit Father to
have much time during school breaks and the summer, which
would enable Father to preserve his relationship with the
[C]hildren.
Relocation Factor 4: The children’s preference, taking into
consideration the age and maturity of the children.
The court interviewed [L.Y.] on June 11, 2020. [L.Y.] appears
to be a bright and confident 12-year-old who was able to express
her views. [L.Y.] states that she enjoys spending time with both
parents and is comfortable in both homes. Her preference is for
the status quo and to remain in the Hummelstown area.
Due to their ages, [R.Y.] and [P.Y.] were not interviewed.
Relocation Factor 5: Whether there is an established
pattern of conduct of either party to promote or thwart the
relationship of the children and the other party.
Mother does not appear to thwart [the Children’s] relationship
with Father. While Mother’s proposed relocation would
necessitate a change in the custody schedule, the move does not
appear to be motivated by an attempt to thwart Father’s
relationship with the [C]hildren. As noted above, Mother’s
proposed custody schedule would ameliorate the impact of the
relocation on Father’s time with the [C]hildren.
Father does not directly thwart [the Children’s] relationship
with Mother. The court does have some concerns that Father’s
lack of co-parenting cooperation is a passive-aggressive way to
impact Mother’s relationship with the [C]hildren.
Relocation Factor 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.
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Mother’s home is currently in foreclosure and will be sold
through a sheriff’s sale in July [2020]. The court is well-aware
that the deed to the home and the mortgage is in Father’s name
alone. Father has not cooperated with changing the deed and
mortgage into Mother’s name. At the same time, Father has also
withheld child support payments. As a result, the blame for
Mothers soon to occur eviction falls squarely on Father. Mother
works and intends to return to school to pursue a bachelors’
degree in nursing. The court agrees with Mother that moving to
Wantagh would benefit her in terms of housing, finances, and
childcare. Mother intends to purchase a home with her fiancé[,10]
who is a New York City firefighter. She has taken her nursing
exam (NCLEX) and given the job market for nurses, should quickly
find employment in any location. With the availability of her
parents and other family members in the Wantagh area, she
would also find family to provide childcare while she worked or
attended school. The court would expect Mother’s quality of life
to be enhanced in all areas.
Relocation Factor 7: Whether the relocation will enhance
the general quality of life for the children, including, but
not limited to, financial or emotional benefit or educational
opportunity.
Mother presented testimony and evidence as to the similar or
greater educational opportunity that a move to the Massapequa
School District would afford. As noted above, the court is
convinced this move would provide for [the Children’s]
educational success.
[The Children] have visited family over the last few years in
Wantagh area, as well as their maternal grandfather who lives
near Wantagh. Both Mother and her fiancé have relatives with
children in the same age range. These peer relationships will also
assist them in the transition to a new home and school.
It is also clear that the move would improve the immediate
financial prospects for the [C]hildren. As noted above, Mother will
____________________________________________
10Mother testified that she and her boyfriend, T.C., saw marriage in the future
but noted that “other things need to happen first.” N.T., 6/8/20, at 32. She,
however, did not refer to an engagement nor to T.C. as her fiancé.
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soon be forced out of the home where she resides. Father has not
been reliable in his financial support.
Relocation Factor 8: The reasons and motivation of each
party for seeking or opposing the relocation.
Mother understandably seeks to relocate to live together with
[T.C.], her fiancé. Mother also requests to relocate with the
[C]hildren in order to increase her network of support while she is
working full-time and in school. The court believes the move
would in fact accomplish this goal.
Father opposes the move in order to maintain his custodial
periods and his relationship with the [C]hildren. The court also
believes that Father’s attitude is that it is Mother’s choice to move
and that the consequences of that choice should accrue to her.
Relocation Factor 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 children or an
abused party.
The court does not find any evidence of past or present abuse
committed by Mother or anyone in her household.
There is an allegation of an incident where Father pushed
Mother down the stairs and put his hands around Mother’s neck
while he was on top of her. However, no charges were pressed at
that time and the court found no reported incidents prior or since
this alleged time. The court is concerned with the allegation as
the safety of the children is the primary concern and this factor
carries great weight when making decisions regarding custody.
Relocation Factor 10: Any other factor affecting the best
interest of the children.
There are no other relevant factors.
* * *
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Custody Factors
Having addressed the relocation factors, the court now turns
its attention to the 16 custody factors enumerated in 23 Pa.C.S. §
5328.
Factor 1: Which party is more likely to encourage and
permit frequent and continuing contact between the
children and another party.
Mother and Father currently have shared custody. There is
no report of either parent preventing the children from
communicating with the other. A relocation will impair Father’s
time with the [C]hildren, but Mother is willing to concede
substantial summer and holiday time to help ameliorate the
impact on Father’s custodial time.
Factor 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.
The court does not find any evidence of past or present abuse
committed by Mother, or anyone in her household.
There is an incident where Father is alleged to have pushed
Mother down the stairs and put his hands around Mother’s neck in
a [choking] motion. Mother testified that one of the [C]hildren
was present and begged Father to get off of Mother. Father
testified that Mother fell down the stairs while intoxicated[. The
trial court further noted: “This testimony is not consistent with
Father’s testimony in the divorce proceedings, . . . where Father
denied knowing the cause of Mother’s bruising.” N.T., 11/7/19,
at 185-87.] No criminal charges were lodged, Mother was never
successful in obtaining any protection from abuse orders, and this
event does predate more recent custody orders. However, the
court has concerns given that this factor impacts the safety of the
[C]hildren. The court has no evidence that Father was directly
abusive to the [C]hildren.
Factor 3: The parental duties performed by each party on
behalf of the children.
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Mother has performed parental duties for [the Children] when
they are in her home. This includes providing the basic necessities
such as shelter, clothes, and nutrition, as well as those duties that
enrich a child’s life, such as educational work and taking [the
Children to] activities in the community. Mother has principally
made medical and dental appointments for the [C]hildren.
Father has likewise performed parental duties for [the
Children] when they are in his home. Father appropriately
provides shelter, meals, and care. In addition, Father coached
[R.Y.’s] Lacrosse team, does art with [P.Y.], and watches movies
with [L.Y.] Father also takes the [C]hildren hiking and camping.
Factor 4: The need for stability and continuity in the
children’s education, family life and community life.
During the separation and divorce proceedings [the
Children] have continued at South Hanover Elementary School
and Lower Dauphin Middle School when in Mother’s home and
Father’s home. This has created good stability for the [C]hildren
during this time of change. In the next school year [R.Y.] will be
moving to middle school. [L.Y.] and [R.Y.] are active in sports
and age-appropriate community activities.
Relocating to Wantagh, New York, would disrupt this
continuity. The strongest argument against relocation and a
change in the custodial schedule is that the [C]hildren are doing
well in school and developing in their community activities.
However, it is not possible for things to remain the same as the
home where Mother lives is in foreclosure. While it may be
possible to relocate closer to her current location, the family will
still face changes.
The court also heard testimony that Father is currently
facing a felony criminal charge in Virginia that apparently arose
out of a business transaction. Father is presumed innocent, but
this charge must be resolved and until it is, the potential for any
incarceration poses a risk to the stability that Father can provide
for the [C]hildren.
The court further notes that family from both Mother and
Father’s side is available in New York, educational and community
opportunities are available there, and the court believes these
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children are resilient. Consequently, the court believes that the
[C]hildren will not suffer from a loss of stability or continuity.
Factor 5: The availability of extended family.
Mother has no extended family in Harrisburg but has several
family members around the Wantagh area, including her father
and stepmother, a sister and a stepbrother. Mother’s fiancé,
[T.C.], also has relatives close to Wantagh who have a relationship
with Mother and the [C]hildren, which notably includes nieces in
the same age range of the [C]hildren.
Father’s parents live in the Hummelstown area and provide
frequent childcare for the [C]hildren during Father’s custodial
periods. It is believed that the [C]hildren have a close relationship
with the paternal grandparents. Father also has a sister here,
although the sister has limitations that likely prevent the
development of a close relationship with the [C]hildren. It was
noted that Father has two aunts and a grandmother in the general
area of Wantagh, New York, along with cousins that the family
visits at least once or twice a year. The [C]hildren should have
some familiarity with these extended family members and may
facilitate Father’s custodial periods should he choose to exercise
them in New York.
Factor 6: The children’s sibling relationships.
[The Children] are the only children through Mother. These
children have always been together, and the court would not
entertain separating them.
Father has no other children aside from [the Children].
Father’s paramour, [N.M.], has three children that are in the same
age range as [the Children], and they join together for activities.
If this relationship continues, the court believes that the
relationship between the [C]hildren could also continue during
Father’s custodial periods.
Factor 7: The well-reasoned preference of the children,
based on the children’s maturity and judgment.
As noted above, the court interviewed [L.Y.] on June 11,
2020. The court found [L.Y.] mature enough to state a reasoned
preference. Her stated preference is for the status quo and
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remaining in the Hummelstown area. [L.Y.] appears comfortable
with both parents and enjoys spending time with both. When the
court inquired about each parent’s paramour, [L.Y.] indicated that
she gets along with both [N.M.] and [T.C.]. However, the court
noted more affinity when [L.Y.] discussed her relationship with
[T.C.]
Due to their ages, [R.Y.] and [P.Y.] were not interviewed.
Factor 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.
The court does not find any incidents of Mother turning the
[C]hildren against Father. There was testimony that Mother may
have prematurely told the [C]hildren about the proposed
relocation and suggested to them that Father might move as well.
Mother disputes this.
Similarly, the court does not find any incidents of Father
actively turning the children against Mother. There was testimony
that Father used the [C]hildren to convey certain messages about
custody that Father denies. As noted above, the court is
concerned that Father’s lack of co-parenting cooperation at times
can have the result of turning the [C]hildren against one or both
of the parents.
Factor 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.
Both parents present an open and loving relationship with
[the Children] as evidenced by reporting activities they do
together as a group and individually. Both parents deny having
conversations with the kids which would be considered adult
issues.
Mother reports wanting to do what she can to maintain the
life [the Children] are accustomed to and hopes to do this by
furthering her career. Mother also reports being heavily involved
in school activities and would like to return to doing this once she
has more support.
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Father reports his preferred parenting style to be structured
and predicable. Father reports loving to spend time with [the
Children,] educating them and spending time outdoors.
Factor 10: Which party is more likely to attend to the daily
physical, emotional, developmental, educational and
special needs of the children.
Mother reports, and Father corroborates, she primarily
schedules all medical appointments. Mother and Father both see
to the physical, emotional, developmental, and educational needs;
including attending parent/teacher conferences and teaching
[P.Y.] to ride a bike.
The court recognizes that a relocation would severely hinder
Father’s ability to attend school and sports activities, let alone
volunteer as a coach which he has done.
Factor 11: The proximity of the residences of the parties.
Presently, Father and Mother live within the same school
district. Upon relocating to Wantagh, Mother and Father would be
a little over three hours apart. While this could impact the court’s
decision other factors outweigh the distance and a parenting plan
can be put in place which supports continued relationships with
both parents.
Factor 12: Each party’s availability to care for the children
or ability to make appropriate child-care arrangements.
Mother is working full-time and intends to return to school to
further her nursing education. Mother reported a problem with
childcare during last summer and reported [T.C.] came forward to
support Mother in providing care for the children. Mother has not
reported any other issues with childcare. A move to Wantagh
would give Mother further support in meeting childcare needs
through family.
Father works full-time but has a flexible schedule. When [the
Children] are in his home, Father is able to schedule his workday
so that he is often at home for several hours. At other time[s] he
utilizes paternal grandmother to watch [the Children] when he
needs to leave for meetings in the community.
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Factor 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 the children from abuse
by another party is not evidence of unwillingness or
inability to cooperate with that party.
There appears to be continued conflict between Mother and
Father pursuant to the separation and pending divorce. This is
seen in the parents’ communication problems, accusations of
using [the Children] to convey messages, allegations of
alcoholism, and Father’s lack of candor and timely notice about
the pending foreclosure.
Mother denies using [the Children] to discuss adult issues or
to convey information to Father. Mother reports using a co-
parenting application and text messages to communicate with
Father. Mother testified that Father does not respond
consistently.
Father also denies sharing adult issues with [the Children].
Father acknowledged he does not use the co-parenting application
and only responds to text messages that he deems relevant to the
[C]hildren’s needs. Limiting the communication between Father
and Mother in this way may eliminate some potential conflict,
however, it prevents the opportunity to co-parent in a way that is
in the best interest of the [C]hildren.
Factor 14: The history of drug or alcohol abuse of a party
or member of a party’s household.
Father’s testimony suggested that Mother has an issue with
alcohol. This accusation has been voiced at other times in the
history of this case. However, there is no evidence to substantiate
this allegation.
There is no evidence of drug or alcohol abuse by Father.
Factor 15: The mental and physical condition of a party or
member of a party’s household.
There is no evidence that either Mother or Father has a
mental or physical condition, therefore, this factor does not impact
the court’s decision.
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Factor 16: Any other relevant factor.
There are no other relevant factors.
Memo. Op., 6/12/20, at 2-14.
On appeal, Father challenges the trial court’s determinations as to the
Section 5337(h) relocation factors and award of custody. Father asserts the
court erred as a matter of law and abused its discretion in approving Mother’s
relocation, by failing to properly apply the required factors in determining if
the proposed relocation is in the best interests of the Children. Father’s Brief
at 8. Specifically, Father challenges the court’s analysis as to relocation
factors 1, 3, 4, 6, and 7. Id. at 10. Id. Significantly, Father does not
specifically discuss the custody factors with his challenge.
As to relocation factor 1 (the nature, quality, extent of involvement and
duration of the children’s relationships with the party proposing to relocate
and with the nonrelocating party, siblings and other significant persons)
Father highlights the Children’s relationships with him and his parents and in
the community, which were recognized by the trial court. Father’s Brief at 10-
11. Father argues, “These significant relationships with the grandparents and
friends, as well as the strong relationship with [Father], will all be terminated
once the Children relocate from Hummelstown, Pennsylvania to Wantagh, New
York.” Id. at 11.
As to relocation factor 3 (the feasibility of preserving the relationship
between the nonrelocating party and the children through suitable custody
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arrangements, considering the logistics and financial circumstances of the
parties) Father asserts,
While the [trial] court does address [this] factor, it does so in a
cursory manner, with only four sentences, giving no explanations
or references to the record. The [trial] court notes in its opinion
that depending on where Mother purchased her home, it would
“create a separation of approximately three hours and fifteen
minutes from Father’s current residence.” It acknowledges that
this would create significant inconvenience for [Father] and
drastically change the current 2-2-5-5 custody schedule.
However, the [trial] court fails to address the fact that Mother
does not have a house in Nassau County, New York, which is key
to adequately determine how long the transportation to and from
would be. The “separation” to and from New York can range
anywhere from a three to eight-hour trip depending on the day
and time of departure. Without a home established, there is no
way for the court to adequately gauge the time of separation
between [Father]’s current home and relocating the Children in
New York. This factor includes facts in the case that require
adequate consideration and analysis; the court failed to do so, and
thus abused its discretion in determining that this factor weighed
more in favor of [Mother] without giving it adequate
consideration. The [trial] court notes that Father’s time with
[C]hildren will dramatically decrease from being on a weekly basis
to only two weekends a month. The [trial] court’s conclusion that
Father could maintain a meaningful relationship with the minor
children if they relocated to New York is simply not feasible.
Father’s Brief at 11-12.
As to factor 4 (the children’s preference, taking into consideration the
age and maturity of the children), Father maintains that the court did not give
adequate weight to L.Y.’s preference to maintain the status quo. Father’s Brief
at 12-13. Father avers,
A child’s preference should carry significant weight and be
carefully considered when determining what would be in their best
interests. Greib v. Driban, [458 A.2d 1006, 1007] (Pa. Super.
1983). In addition, the [c]ourts shall provide greater
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consideration to the child’s preference if they are older and portray
a sense of maturity and understanding of the circumstances
surrounding them. [Id.] L.Y. was very clear with the Trial Judge
that she wanted to remain in the Hummelstown area. In its
opinion, the [trial] court noted that L.Y. “appear[ed] to be a bright
and confident 12-year-old who was able to express her views.”
During the interview, the court noted that L.Y. expressed that her
“preference is to remain in the Hummelstown area and maintain
the status quo.”
Id. at 12-13 (record citations omitted).
As to factor 6 (whether the relocation will enhance the general quality
of life for the party seeking the relocation, including, financial or emotional
benefit or educational opportunity), and factor 7 (whether the relocation will
enhance the general quality of life for the children, including financial or
emotional benefit or educational opportunity), Father argues Mother failed to
provide a new home address in New York or the intended school district for
the Children. Father also maintains that Mother admitted she did not have
employment in New York nor was she accepted into a higher education
program in New York. Father’s Brief at 13. He concludes, “Mother did not
have any concrete and established benchmarks for the [c]ourt to adequately
weigh this factor.” Id. After careful review, we decline to disturb the court’s
custody order.
In supporting its determinations, the trial court reasoned:
As stated previously, the [c]ourt reviewed all relocation and
custody factors when determining the best interest of the
[C]hildren to relocate with Mother. The [c]ourt also considered
the impact it may have on a meaningful relationship with Father.
In the [c]ourt’s view it is in the best interest of the [C]hildren to
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permit Mother to relocate with the children to Wantagh, New York
and grant Father ample opportunity for regular contact.
1925(a) Op. at 4.
“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). Although the court is required to give “weighted
consideration to those factors which affect the safety of the child” pursuant to
23 Pa.C.S. § 5328(a) and 23 Pa.C.S. § 5337(h), this Court has stated:
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. See A.D. v. M.A.B., 989 A.2d 32, 35-36
(Pa.Super. 2010) (“In reviewing a custody order ... 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.”). . . .
M.J.M. v. M.L.G., 63 A.3d 331, 339 (Pa. Super. 2013) (emphasis added).
A careful review of Father’s claims, against the trial court’s findings,
reveals a challenge to the court’s findings of fact and determinations regarding
credibility and weight of the evidence. Father, in essence, questions the
court’s conclusions and seeks this Court to re-weigh the evidence. This we
cannot do. As stated above, the trial court’s findings of fact and
determinations regarding credibility and weight of the evidence are not
disturbed absent an abuse of discretion. See C.R.F., 45 A.3d at 443. As we
stated in King v. King, 889 A.2d 630 (Pa. Super. 2005), “It is not this Court’s
function to determine whether the trial court reached the ‘right’ decision;
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rather, we must consider whether, ‘based on the evidence presented, given
[sic] due deference to the trial court’s weight and credibility determinations,’
the trial court erred or abused its discretion. . . .” Id. at 632. After a thorough
review of the record, we find no abuse of discretion. Further, to the extent
Father challenges the weight attributed to any factor by the trial court, we
likewise find no abuse of discretion. As stated above, the amount of weight
that a trial court gives to any one factor is within its discretion. See M.J.M.,
63 A.3d at 339.
In the case sub judice, the trial court analyzed and addressed each of
the custody and relocation factors pursuant to Section 5328(a) and Section
5337(h). After careful review of the record, we determine the court’s
determinations are supported by competent evidence in the record, and we
will not disturb them. See C.R.F., 45 A.3d at 443. For the foregoing reasons,
we affirm the order of the trial court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/28/2021
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