Gill, C. v. Gill, S. ( 2023 )

J-A27021-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CATHERINE GILL : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SEAN GILL :
:
Appellant : No. 919 MDA 2022
Appeal from the Order Entered June 1, 2022
In the Court of Common Pleas of Cumberland County Civil Division at
No(s): 2021-01203
BEFORE: DUBOW, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED: MARCH 21, 2023
S.G. (“Father”) appeals from the order granting C.G. (“Mother”) primary
custody of their two minor children and permitting Mother to relocate to Texas.
Father argues the court erred in weighing the relocation factors and in granting
Mother primary custody. We affirm.
Father and Mother were married in 2008. Father served in the National
Guard for six years, and, after completing medical school, Mother became a
physician for the United States Army. N.T., 5/26/22, at 10, 58-59, 142. Father
resigned from the National Guard in late 2013. Id. at 63-65, 142, 210. In
2014, while they were living in Virginia, where Mother was stationed, they had
their first child. Id. at 10, 64.
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* Retired Senior Judge assigned to the Superior Court.
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The family then moved to New York, Mother’s next army station.
Between 2015 and 2016, Mother was deployed for nine months. Id. at 64,
67-68, 160. During Mother’s deployment, Father cared for their child. For six
months of the deployment, Father and the child lived with the paternal
grandparents. Id. at 131-32, 173; N.T., 5/27/22, at 9.
When Mother returned, the family moved to Georgia, where the army
had stationed Mother. N.T., 5/26/22, at 64. Father went back to school for
cyber security management. Id. at 65. In 2017, Mother and Father’s second
child was born.
The family moved to Carlisle, Pennsylvania, Mother’s next military post,
in 2018. Both parents had hopes that the location would foster familial
connections, as Carlisle is within a few hours’ drive of both sets of
grandparents. Id. at 16, 36, 121, 143. Mother was away for three to four
months in 2019 for a training session, during which Father cared for the
children while he studied. Id. at 105-07, 160-61. Father earned his master’s
degree in December 2019. Id. at 164. In 2020, during the pandemic
shutdowns, Father watched the younger child and managed the older child’s
homeschooling. Id. at 162-63. Father gained full-time employment in January
2021. Id. at 209.
In early 2021, the parties separated, and Mother filed for custody.
Mother and Father stipulated to a custody agreement in which they shared
equal custody of the children. Their divorce is pending.
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In January 2022, Father filed a petition for modification of the custody
order. He alleged that Mother had accepted a medical fellowship in Fort Hood,
Texas, and that it would not be in the children’s best interest to move with
Mother. The following month, Mother filed a petition for modification, seeking
primary custody of the children during the school year and permission to
relocate with them to Texas in June or July of 2022.
The court held a two-day hearing on May 26 and 27, 2022. Mother
testified that she is the primary parent. Id. at 108. She stated she is more
attentive to the children’s schoolwork, health, and hygiene, and their
doctorand dental appointments. Id. at 17, 117. Mother testified that she is
the parent who communicates with the children’s teachers and coaches and
arranges all the extracurricular activities. Id. at 18, 38.
Regarding the children’s relationships with their grandparents, Mother
testified that she does not believe Father can maintain a relationship with the
maternal grandparents for purposes of visitation with the children during his
custody periods. Id. at 127-28, 130. As for the paternal grandparents, Mother
testified that she took the children to visit their paternal grandparents when
Father stopped talking to them due to their decision to be unvaccinated
against COVID. Id. at 53-55, 102. Mother stated she has also maintained the
children’s relationship with the paternal grandparents through calls and video
chats. Id. at 55-56. Mother testified that she invited the paternal
grandparents to attend the older child’s first communion, which took place a
few weeks before the hearing, after having given Father the opportunity to
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invite them. Id. at 43, 56; see also N.T., 5/27/22, at 28-30 (testifying to her
desire to maintain relationship with paternal grandparents).
Mother testified that she has been in the Army for 11 years and is eligible
for retirement after 20 years of service. N.T., 5/26/22, at 59. She has achieved
the rank of Major. Id. at 10. Mother said that she entered the Army after
considering what would happen if Father was injured while deployed, and her
desire to use her skills to treat injured service members. Id. at 58. Mother
stated that she and Father had discussed her completing the fellowship in the
Army and then transferring to the National Guard or Army Reserves. However,
Mother testified that there would be benefits if she stayed in the Army and
retired from active duty. Id. at 62, 115.
Mother testified that the Army restations her every two or three years,
and that there is always the chance she will be deployed. Id. at 6, 124. Mother
testified that the Army will be diction her soon regardless of whether she
participates in the fellowship, and a custody decision would be required either
way. Id. at 69-71, 78. Mother stated that her current orders were to report
to Fort Hood on July 15, 2022. Id. at 71.
Mother testified that the family medicine obstetrics fellowship offered in
Fort Hood is the only one of its kind, and she has been wanting to do it for her
entire career. Id. at 71-72; see also id. at 78-79 (describing fellowship). She
also testified that several former colleagues and mentors are currently
stationed at Fort Hood and living in the neighborhood where she intends to
move. Id. at 77. Mother testified that the fellowship would make her more
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marketable when she leaves the Army, and that a similar fellowship would not
be available to her as a civilian. Id. at 79-80. At the same time, she
acknowledged that if she left the military without doing the fellowship, she
would not have any trouble finding employment as a physician. Id. at 122.
Mother testified that her work schedule during the fellowship would be
based on rotations, including some night shifts and 12-hour days. Id. at 81.
She said she might work 60 or 80 hours in a week. Id. at 118-19. Mother
testified that the maternal grandmother would move to Texas with her to
provide childcare for at least the first year and has co-signed her lease for a
house. Id. at 36, 74, 84. Mother testified that she enrolled the children in a
Catholic school with a curriculum similar to that of their current Catholic
school. Id. at 87. She said that she will enroll the children in the same types
of activities in which they participate in Pennsylvania. Id. at 97.
Mother contended that technology will allow the children to have
frequent virtual visits with Father and maintain their friendships in
Pennsylvania. Mother also explained that the fellowship will permit her to take
leave to travel, and that she anticipates taking the children on vacations to
visit extended family. Id. at 101-02, 127.
When asked whether moving frequently is hard on the children, she
stated,
I think it’s challenging on all of us, but it’s good to be challenged.
Army families, army kids, are known for being very resilient. You
know, with those moves come new experiences, new people, new
groups of friends, new activities, new cultures. . . . So yes, it’s
challenging, but in a lot of really good, I think, developmental
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ways, and, you know, certainly our oldest is always open to new
experiences and challenges. She flourishes in those situations.
Id. at 66-67. She testified, “My kids are very easy going and very smart and
very social, and I think they will do well with this and any other transitions in
the future.” Id. at 100.1
When counsel asked Mother how the long hours she works impacts the
children, Mother said,
You know, obviously it’s hard. As I said, kids thrive on routine, so
if my schedule’s fluctuating they will notice that, but they also
know what I do for a living. So they are very proud. They know
when mommy’s at the hospital that mommy’s taking care of
people, that mommy’s helping people. They are very proud to tell
people that.
For the longest time Maggie thought anybody in uniform was a
doctor because mommy’s a doctor and mommy wears that
uniform to work everyday so everyone in uniform must be a
doctor. So she is very proud. She likes to talk about what I do.
She knows my time spent away from the kids or the family is
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1 Mother similarly testified as follows:
You know, like I said before, army kids are known for their
resiliency. They, you know, are known for having superior social
skills and emotional intelligence, and part of that comes from the
variety of experiences, living in different places, experiencing
different, you know, types of people, new people, growing their
sort of awareness of the world.
You know, I think it’s important – like I said, it’s challenging but
challenging is good. I think they’ll thrive. The more experiences
we provide them, you know – and this is true for all kids in any
situation. The more experiences you give them, the more they
learn and grow. Eventually they will find their niche, you know,
what they want to do or be, but, you know, you need to open their
world for them and let them experience it.
N.T., 5/26/22, at 100.
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always for the benefit of other people, and she takes as much
pride in that as I do, I think.
So, yeah, I mean, you know, they will always be well cared for
whether I'm there or not, but they know what I do for work.
Id. at 103.
The children’s maternal grandmother testified and confirmed that she
would move to Texas to assist mother with caring for the children. She said
she would relocate or stay after the fellowship, as needed. Id. at 225-26.
Father testified that he has been the parent who more often performs
primary care for the children. Id. at 155. Father testified that he has been the
parent to take the children to and from school or daycare, activities, and
doctor’s appointments. Id. at 155-56, 159. He said that before he and Mother
separated, he spent most of the parental time with the children and has never
gone more than three weeks without seeing them. Id. at 150, 158. He stated
that now that he and Mother have separate periods of custody, he is equally
involved with the children’s hygiene as Mother is. Id. at 200.
Regarding extended family, Father testified that the paternal
grandparents have always been involved in the children’s lives. He recounted
that he and the older child lived with his parents while Mother was deployed
and that the paternal grandfather came to stay with the family for three
months when they lived in Georgia, and again for about a week in January
2021. Id. at 173-74, 182. Father testified that he had a rift with his parents
for several months in 2021 because they would not get vaccinated against
COVID, and he cancelled a trip to visit them. Id. at 174-75. Father said the
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relationship has since been mended. Id. at 175. Father testified that he has
not had a positive relationship with the maternal grandfather since the two of
them got into a physical altercation. Id. at 185-86.
Father testified that before he and Mother separated, they had discussed
Mother’s fellowship, and planned that Father and the children would stay in
Carlisle while Mother spent the year in Texas. Id. at 144-45. Father said they
had also discussed Mother leaving the military following the fellowship, to
avoid moving frequently during the remainder of their children’s childhoods.
Id. at 145-47.
Father testified that he is a security specialist for the United States Army
at the US Army War College at the Carlisle barracks. He works 40 hours a
week, from 8am to 4pm. Id. at 137-38. He does not have to travel for his job,
and there is no risk that he will be transferred to another location. Id. at 138-
40. Father testified that there are opportunities for advancement if he moved
to the Washington, DC area, but that he has prioritized finding a position that
offers him the flexibility to take care of the children. Id. at 183-84. Father
testified that there is no financial need for the relocation. Id. at 196.
Father testified that if Mother relocated to Texas, he would be able to
take the children to visit her every month, structured around when the
children have three-day weekends due to holidays. Id. at 149-52. Father
proposed that after the fellowship, Mother could find an Army posting on the
East Coast, and they would try to return to a 50/50 custody schedule. Id. at
198, 203. He stated if he was granted primary custody and Mother returned
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to the East Coast after her fellowship, he would find an adjacent job near
where Mother would be stationed. Id. at 235.
The children’s paternal grandfather testified that the relationship
between the parental grandparents with Father is “good” and the relationship
with the children is “excellent.” N.T., 5/27/22, at 9, 10. He said that the
paternal grandparents had had a “tiff” with Father in 2021 over vaccinations,
but they had “straightened it out.” Id. at 10, 16. He stated Mother brought
the children to visit the paternal grandparents twice during that period and
kept in touch with paternal grandmother. Id. at 13, 15. However, the paternal
grandfather stated his current relationship with Mother was not positive. Id.
at 14, 15.
The paternal grandfather confirmed that Father had stayed with them
for six months during Mother’s deployment, and that he had stayed with
Father for a period of months and weeks when Father had operations on his
shoulder, wrist, and back. Id. at 9. He stated that during one of his visits,
Mother would work 12-hour days, and Father would care for the children. Id.
at 11. He testified that the most recent visit was earlier in the year, shortly
after he and Father had started speaking again. Id. at 17.
The paternal grandmother also testified and confirmed that her
disagreement with Father had passed. Id. at 19. She also confirmed that
Mother had invited her to the older child’s first communion a few weeks before
the hearing. Id. at 19, 26-27. She stated that Mother brought the children to
visit when they were at odds with Father and sent her messages and pictures
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of the children during that time, but now questions Mother’s motives for doing
so, and says their relationship is “not really good.” Id. at 21-24.2
At the conclusion of the hearing, the court stated its decision on
relocations “are never easy, especially considering from the testimony I heard
you equally love and care for your girls.” Id. at 30.
The court entered an order granting Mother’s request for relocation to
Texas. The court also gave Mother primary physical custody of the children.
It gave Father physical custody of the children for a portion of their summer
break from school, the opportunity to visit the children in Texas one weekend
per month during the school year, and alternating holidays. It gave the parties
shared legal custody.
The order stated that of the 16 custody factors,3 the court found 13
factors were neutral or not applicable, two factors (10 and 11) favored Father,
and one factor (5) favored Mother. Specifically, the court found that custody
factor 10 (“Which party is more likely to attend to the daily physical,
emotional, developmental, educational and special needs of the child”)
favored Father, because Father’s work schedule “is better suited for and
adaptable to the girls’ schedules.” Relocation Custody Order of Court, 5/31/22,
at 18 (unpaginated). It also found custody factor 11 (“The proximity of the
residences of the parties”) favored Father, because Father’s residence is closer
____________________________________________
2 Mother and Father each had a friend of theirs testify, as well.
3 See 23 Pa.C.S.A. § 5328(a).
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to both paternal and maternal grandparents. However, the court noted that
Father’s “inability to maintain relationships with extended family is
concerning.” Id.
The court found that custody factor 5 (“The availability of extended
family”) favored Mother, because, while Father’s residence in Pennsylvania is
a few hours away from both sets of the children’s grandparents and Father’s
brother, Father has not maintained relationships with extended family
members, whereas Mother has fostered those relationships. Id. at 15-16. The
court noted Mother, not Father, had invited paternal grandparents to attend
the older child’s first communion. Id.
Of the 10 relocation factors,4 the court found four factors were neutral
or not applicable, two factors (1 and 10) favored Father, and four factors (3,
6, 7, and 8) favored Mother. The court found that relocation factor 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”) favored Father, because when
Mother has worked long hours or been deployed, Father has taken care of the
children, “and/or at the very least, [been] more consistent in their lives. The
girls have never been removed from their Father, while they have experience
not being with their Mother.” Id. at 12. The court also found relocation factor
10 (“Any other factor affecting the best interest of the child”) favored Father,
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4 See 23 Pa.C.S.A. § 5337(h).
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because Father has been a consistent caretaker for the children, while Mother
“has been away from the home during months of training and deployment.”
Id. at 14.
The court found that relocation factors 3, 6, 7, and 8 favored Mother. In
the court’s view, relocation factor 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”) favored Mother because “[i]t is more feasible that Father’s
relationship with the girls will be more easily preserved if the girls relocate
than it will be for the Mother’s relationship with the girls to be preserved if the
girls do not relocate with her.” Id. at 13. The court considered that Father has
a stable job and testified that his work schedule would allow him to fly to
Texas to visit the children, whereas it would not be in the children’s best
interest to visit Mother in Texas on a monthly basis if they remained in
Pennsylvania. Id. at 12-13.
For relocation factor 6 (“Whether the relocation will enhance the general
quality of life for the party seeking relocation, including, but not limited to,
financial or emotional benefit or educational opportunity), the court found that
both pursuing the fellowship and remaining in the Army for 20 years would
improve financial security for Mother, and that moving in accordance with
Mother’s Army postings “was the family’s plan when the parties were married.”
Id. at 14.
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For relocation factor 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), the court found that relocating to Texas,
“in a neighborhood with other children, in another Catholic school, where
maternal grandmother will be available to help care for the girls” would
enhance the children’s quality of life, and therefore favored Mother. Id. at 15.
The court noted that “[c]hildren are resilient” and stated, “Moving to another
state will enhance their tolerance for those who are different from them, and
it will create new challenges and experiences for them.” Id.
Finally, the court found relocation factor 8 (“The reasons and motivation
of each party for seeking or opposing the relocation”) favored Mother, because
she is moving to better her career. Id. The court noted that Father’s reasons
for opposing the relocation is to keep the children involved in their current
school and activities, and to keep them close to their extended family;
however, the court noted that Father has not maintained his relationship with
his family.
Father appealed. He raises the following issue:
I. Did the trial court abuse its discretion and err as a matter of law
in granting Mother’s petition for relocation, and thus, permitting a
temporary move to Texas, as such decision is inconsistent with
the weight of the evidence that shows it is in the best interest of
the Children to remain with Father in Pennsylvania while Mother
temporarily moves to Texas to pursue a one-year medical
fellowship; the record does not establish it is the Children’s best
interests to be uprooted from their established home and
schooling in central Pennsylvania to follow Mother on a temporary
move, particularly when Mother failed to establish that such a
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temporary relocation would either significantly improve her
circumstances economically or the lives of the Children?
A. Did the trial court abuse its discretion and err as a matter
of law in determining that relocation factor #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 parries,” favored Mother, as the trial
court erred in concluding that Father’s relationship with the
Children will be more easily preserved if Mother is permitted
to relocate temporarily with the Children than Mother’s
relationship with the Children would be preserved if the
Children remained with Father in Pennsylvania?
B. Did the trial court abuse its discretion and err as a matter
of law in determining that relocation factor #7, “Whether
the relocation will enhance the general quality of life for the
child, including but not limited to, financial or emotional
benefit or education opportunity,” favored Mother, as
Mother failed to meet her burden to prove that allowing her
to relocate temporarily with the Children to Texas for a one-
year medical fellowship will enhance the general quality of
life for the Children, as Mother provided no evidence that
the relocation would enhance the Children’s opportunities
financially, emotionally, socially, or educationally; as Mother
provided no evidence that the Children’s current living
arrangements, schooling or friendship networks would
improve by temporarily relocating to Texas where the record
established the Children will be cared for by Maternal
Grandmother while Mother works 60-80 hours per week
during her one year fellowship?
C. Did the trial court abuse its discretion and err as a matter
of law in determining that relocation factor #8, “The reasons
and motivation of each party for seeking or opposing the
relocation,” favored Mother, as Mother’s motivation in
seeking the relocation was solely to benefit Mother, and not
the Children, while Father’s motivation opposing the
relocation that such temporary relocation was not in the
best interest of the Children and did not justify the
Children’s upheaval from their established location?
Father’s Br. at 4-6 (suggested answers omitted).
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Father argues that the court determined the custody factors favor Father
and “clearly [weigh] in Father’s favor as the primary caregiver for the
children.” Id. at 19. Father contends that Mother did not carry her burden to
prove that relocation would serve the best interests of the children, and that
uprooting the children “from their established home, school, and activities to
relocate with Mother to F[ort] Hood, Texas on a temporary basis” is not in the
children’s best interests. Id. at 22. He quotes Speck v. Spadafore, 895 A.2d
606, 613 (Pa.Super. 2006), for the proposition that “[w]here a move . . . takes
a child away from his other parent, and there are no other advantages to the
move, [the Superior Court] simply cannot endorse the decision to grant
relocation.” Id. at 24.
Father more specifically argues the court erred in concluding that
relocation factors 3, 6, 7, and 8 weighed in favor of Mother. Father argues the
court erred in finding that relocation factor 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”) favored Mother, because he has been the children’s primary
caregiver since their births, and ordering the children to relocate will be
destructive to that relationship. He asserts that he assumed all childcare
responsibilities while Mother was deployed or in training, once for nine
months, and once for three months, and that he has never been away from
the children for more than three weeks. He argues that prior to the parties’
separation, he predominantly took the children to their medical appointments
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and activities and attended their PTO conferences, and that he provided care
for the children during the COVID pandemic and while the older child was
distance-learning.
Father further argues that he can continue to provide direct care for the
children more often than Mother, as his job does not require him to travel or
work more than 40 hours per week, and he can work from home at times.
Father points out that, in contrast, Mother testified that she will be working
60-80 hours a week, on a rotating schedule, with occasional night shifts and
12-hour days.
Regarding 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”), Father argues
that Mother did not provide evidence that relocation would improve her quality
of life. Father asserts that Mother testified that her work schedule during her
fellowship would be demanding, and any benefit to Mother would not occur
until after the completion of the fellowship. Father also argues that Mother did
not testify that her Army salary would increase after she completed her
fellowship.
Father argues the court erred in finding relocation factor 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”)
favors Mother, because Mother presented no evidence that the move would
benefit the children. Father asserts that Mother testified the Catholic school in
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Texas where she enrolled the children is like the Catholic school in
Pennsylvania, and that the children’s extracurricular activities would be
similar. Father asserts Mother testified that the children’s “lifestyle will not
change even though the location does.” Id. at 30 (quoting N.T., N.T., 5/26/22,
at 97) According to Father, this testimony supports that the relocation would
be a lateral move for the children, at best.
Father also points to his testimony that there was no financial need for
the relocation. Father compares the facts of this case with Ketterer v.
Seifert, 902 A.2d 533 (Pa.Super. 2006), in which Father claims this Court
affirmed the trial court’s denial of relocation where there was an economic
need for relocation, but the relocating party testified the children’s lives would
only be “marginally better” after the move. Id. at 34-35.
Father further argues that while Mother generally testified that children
benefit from being exposed to different challenges, she provided no examples
specific to the children or Texas. Father argues that the court’s finding that
relocation will enhance the children’s tolerance for other people, cultures and
customs is not supported by the record, and based on extrajudicial evidence.
Father also highlights potential negative effects of the move on the
children’s’ quality of life. First, according to Father, the parties had chosen to
reside in Carlisle due to its proximity to extended family, and the relocation
would create a burden on seeing extended family. Father claims the court
should not have considered the willingness of maternal grandmother to
relocate with the children to be in Mother’s favor, because maternal
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grandmother testified that she would be equally able to assist if Mother
remained in Pennsylvania. Father also testified that the older child has been
engaged with her school, friends, and activities — such as soccer, girl scouts,
dance, and gymnastics — for the past three years, and that a move would be
disruptive. Father also points out that if the Children relocate with Mother,
Mother will not have as much time to care for them due to her work schedule,
and they will likely need to relocate again once the fellowship is over, “with
no guarantee thereafter of where [Mother] will be posted.” Id. at 32.
Regarding factor 8 (“The reasons and motivation of each party for
seeking or opposing the relocation”), Father argues the court erred in
concluding this factor favored Mother because Mother sought relocation for
her own benefit, and not for the children’s benefit. Father asserts that Mother
“provided no testimony regarding how the fellowship could affect her future
income and Mother provided no evidence that the financial aspects of the
betterment of her career would not trickle down to the children unless she
obtained primary custody of them for this interim period.” Id. at 40. Father
asserts that while Mother testified that she desired to finish her 20-year career
in the Army, for which she had nine years remaining, Mother acknowledged
that she could have finished earning for her retirement in the reserve service.
Meanwhile, Father asserts that he opposes the relocation because it is
not in the children’s best interest. He claims, “By granting the relocation, the
trial court removed the children from their established lives, school, activities,
friends, and care providers, and relocated them to live 1500 miles away . . .,
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in a temporary residence, in the primary care of their maternal grandmother,
while Mother works and attends the fellowship.” Id. at 39-40.
Father also argues the court erred in disregarding Father’s opposition to
the move on the basis that the children currently live closer to extended
family. Father argues that the family choose to move to Carlisle three years
ago to be closer to extended family, and that the paternal grandparents have
been involved in Children’s lives from birth. He claims he testified that the
temporary rift with his parents grew out of a concern for the safety of his
children during the COVID pandemic, and that the testimony supports that
the relationship has since been mended.
In reviewing a custody order, “we accept the factual findings of the trial
court that are supported by competent evidence of record[.]” S.S. v. K.F.,
189 A.3d 1093, 1098 (Pa.Super. 2018). “[W]ith 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.” D.K. v. S.P.K., 102 A.3d 467,
478 (Pa.Super. 2014) (quoting J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa.Super.
2011)).
[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.
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Ketterer, 902 A.2d at 540 (citation omitted). We therefore do not substitute
our judgment for that of the trial court, or determine whether it came to the
“right” conclusion. Hanson v. Hanson, 878 A.2d 127, 129, 131 (Pa.Super.
2005). We reject the court’s custody decision only if it “involve[s] an error of
law, or [is] unreasonable in light of the sustainable findings of the trial court,”
see D.K., 102 A.3d at 478 (quoting J.R.M., 33 A.3d at 650), and “thus,
represent[s] 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)).
When a party petitions the court to relocate a child’s residence5 and
amend custody accordingly, the court must consider both the relocation
factors of Section 5337(h) and the custody factors of Section 5328(a). S.S.,
189 A.3d at 1098. Some of these considerations overlap, either expressly or
implicitly. Id. The factors are 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.
____________________________________________
5 “Relocation” as defined by the Domestic Relations Code is “[a] change in
residence of the child which significantly impairs the ability of a nonrelocating
party to exercise custodial rights.” 23 Pa.C.S.A. § 5322 (“Relocation”).
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(2) The present and past abuse committed by a party or
member of the party’s household, whether there is a
continued risk of harm to the child or an abused party and
which party can better provide adequate physical
safeguards and supervision of the child.
(2.1) The information set forth in section 5329.1(a) (relating
to consideration of child abuse and involvement with
protective services).
(3) The parental duties performed by each party on behalf
of the child.
(4) The need for stability and continuity in the child's
education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on the
child’s maturity and judgment.
(8) The attempts of a parent to turn the child against the
other parent, except in cases of domestic violence where
reasonable safety measures are necessary to protect the
child from harm.
(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child
adequate for the child’s emotional needs.
(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and special
needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability
to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with one
another. A party’s effort to protect a child from abuse by
another party is not evidence of unwillingness or inability to
cooperate with that party.
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(14) The history of drug or alcohol abuse of a party or
member of a party’s household.
(15) The mental and physical condition of a party or
member of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S.A. § 5328(a).
§ 5337. Relocation.
...
(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.
(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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(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).
Guided by these factors, the court must not consider the issue of
relocation separate from the issue of custody, but “decide the two issues
together ‘under a single umbrella of best interests of the children.’” S.S., 189
A.3d at 1098 (quoting S.J.S. v. M.J.S., 76 A.3d 541, 550 (Pa.Super. 2013)).6
We will affirm where the court “engaged in the proper analysis using both
relocation and custody factors, with the best interest standard as the guide.”
S.J.S., 76 A.3d at 550.
In its opinion, the trial court acknowledges that it is required to consider
the relocation and custody factors in tandem, and that the best interest of the
child controls. Trial Court Opinion, 7/26/22, at 3. It states that it considered
all factors and found that its decision was most swayed by the following:
• “Mother’s willingness and efforts made to keep maternal and paternal
grandparents actively involved in the Children’s lives”;
____________________________________________
6 See also 23 Pa.C.S.A. § 5328(a) (“In ordering any form of custody, the
court shall determine the best interest of the child”); 23 Pa.C.S.A. § 5337(h)
(stating the party proposing relocation has the burden of establishing that the
relocation will serve the best interest of the child).
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• the family had planned on a military life and had already lived in four
states;
• “this type of travel enhances Children’s tolerance of others and of
new cultures and customs and creates new challenges and
experiences”;
• the children’s school and activities and community will be similar;
• the maternal grandmother would provide additional childcare;
• the fellowship will make Mother more marketable when she leaves
the Army;
• the children’s need for stability in their community was alleviated by
their youth and inherent ability to make friendships; and
• if they continue in their current career paths, Father has greater
ability to travel to visit Mother’s residence, in comparison to Mother’s
ability to travel to Father.
Id. at 4-7. The record supports these conclusions, and in light of them, the
court’s decision to award Mother primary custody is not unreasonable.
Father argues he has spent more hours with the children than Mother
has, and the children need stability. However, both parties had equal custody
for over a year before the hearing, and which parent has historically been the
primary caretaker is but one custody factor, as is the children’s need for
stability. While Father asserts that he provides a higher percentage of direct
care for the children when he exercises custody than Mother does, and would
continue to do so, given the hours Mother will work during the fellowship, this
again, is but one consideration for the court.
While Father characterizes the relocation as “temporary,” because it is
based on Mother’s attending the one-year fellowship, Mother testified that the
army would be restationing her regardless of the fellowship and would
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continue to restation her every two or three years. The court clearly awarded
Mother custody to allow her to continue to fulfill her commitment to the
military for the foreseeable future.7
Father claims the record does not support that relocation will improve
Mother’s quality of life, because the fellowship will involve long-work hours
and there was no testimony supporting an immediate financial benefit.
However, Father ignores the intangibles, such as Mother’s love for, and pride
in, her career, as well as her long-term financial prospects following the
fellowship. Father’s reliance on Speck, 895 A.2d at 613, is thus misplaced. In
that case, we found the relocation was based only on “the mother’s
cohabitation with the man she intended to marry.” 895 A.2d at 613-14.
Although there is no financial need for the move, a party seeking
relocation need not prove the move is financially necessary, or that there are
no other job opportunities in the immediate vicinity. Geiger v. Yeager, 846
A.2d 691, 698 (Pa.Super. 2004). Although Father argues that Mother seeks
the move for her own benefit, he fails to acknowledge that Mother had
____________________________________________
7 We note, however, “all custody awards are temporary insofar as they are
subject to modification by an ensuing court order any time that it promotes
the child’s best interest. Thus, by force of circumstances, no award of child
custody is permanent regardless of whether the order is styled as interim or
final.” J.M. v. K.W., 164 A.3d 1260, 1268 (Pa.Super. 2017); see also Arnold
v. Arnold, 847 A.2d 674, 677 (Pa.Super. 2004) (“Child custody orders are
temporary in nature and always subject to change if new circumstances affect
the welfare of a child. . . . [The court] may always entertain an application for
modification and adjustment of custodial rights”) (quoting Kassam v.
Kassam, 811 A.2d 1023, 1025 (Pa.Super. 2002)).
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committed to military service before they even had children or dispute the
reasonableness of Mother’s motivation for moving to Fort Hood.
Father also argues that relocation was improper because the testimony
indicates it would be only a lateral move for the children, while uprooting them
and impeding their relationship with Father. However, Mother was not
required to prove that the relocation will substantially improve the children’s
lives. Rather, she needed to show only that, in consideration of all factors, it
is in the children’s best interest.
Father’s reliance on Ketterer is therefore also misplaced. While a
substantial improvement to the children’s lives was required under Gruber v.
Gruber, 583 A.2d 434, 439 (Pa.Super. 1990), that decision has been
supplanted by the statutory factors. See Commonwealth v. Childs, 142
A.3d 823, 832 (Pa. 2016). Moreover, the testimony supports the finding that
there will be some benefits to the children, such as exposure to new
experiences and more time with maternal grandmother. And, again, any
immediate benefit to the children’s quality of life was but one of several factors
considered by the court.
To avoid having the children switch schools during the academic year or
miss school days, the court had three options: (1) grant Mother’s request to
relocate and award her primary custody, (2) grant Mother’s request to relocate
but award primary custody to Father, or (3) deny the relocation. Either of the
latter options would force Mother to leave the armed forces to have more than
a minimal amount of custody time with her children. The court found that the
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first option, however, will allow Mother to remain in the military and Father to
exercise custody with some frequency. The court also found that Mother is
more likely to facilitate visits with both sets of grandparents in comparison
with Father, even after she and the children move farther away.
The court acknowledged that its decision to award Mother primary
custody was not an easy one. We agree with that assessment. However, given
the record, the order does not constitute a gross abuse of discretion, and we
therefore affirm.8 See D.K., 102 A.3d at 478.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/21/2023
____________________________________________
8 We do not find an abuse of discretion on the present record, but any further
request for relocation will of course be subject to review based on the record
at that time.
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