Ramirez, R. v. Rivera, J. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RAUL ARNOLD NAZARIO RAMIREZ : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JESSICA ALAMO RIVERA : No. 1233 MDA 2021
Appeal from the Order Entered August 23, 2021
In the Court of Common Pleas of Northumberland County Civil Division at
No(s): CV-2018-01863
BEFORE: BOWES, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY BOWES, J.: FILED APRIL 27, 2022
Raul Arnold Nazario Ramirez (“Father”) appeals from the August 23,
2021 custody order granting the request of Jessica Alamo Rivera (“Mother”)
to exercise primary custody of their daughter, J.N.A., and to relocate with
J.N.A. from Northumberland County, Pennsylvania, to Puerto Rico. We affirm.
We begin with a summary of the relevant background. Mother and
Father began their relationship in Puerto Rico where they both were attending
college.1 N.T., 7/29/21, at 7-8, 158. They never married. Id. at 8.
Approximately one and one-half years into their relationship, Father moved to
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1Mother was born in New York, but moved to Puerto Rico when she was eleven
years old. N.T., 7/29/21, at 8. Her mother and other family members still
reside in Puerto Rico. Father obtained his college education in Puerto Rico and
was working as a police officer there when he met Mother. Id. at 139-40. His
parents live in New Jersey, but they also own a home in Puerto Rico, and
Father has other family there. Id. at 41, 159.
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Pennsylvania to work as a correctional officer at a federal prison. Id. at 9,
146. Mother joined Father in Pennsylvania in 2015, bringing along her
daughter from a previous relationship. Id. at 9. J.N.A. was born in September
2016. Id. at 9, 11. After J.N.A.’s birth, she resided with Mother, Father, and
her half-sister in a house Father owned in Northumberland County,
Pennsylvania. Id. at 10, 108.
Mother and Father separated in October 2018.2 Id. at 10-11, 120.
Following their separation, Father filed a custody complaint in the
Northumberland County Court of Common Pleas on October 18, 2018, wherein
he requested that the court award him primary physical custody and shared
legal custody of J.N.A.3 Mother filed a cross-complaint, seeking primary
physical custody and shared legal custody of J.N.A. She averred that she was
J.N.A.’s primary caregiver and she recently had obtained a temporary order
under the Protection from Abuse (“PFA”) Act against Father.
On November 17, 2018, the parties agreed to resolve the PFA matter
by a one-year civil no-contact order. N.T., 7/29/21, at 13. Around the same
time, they resolved their custody dispute through conciliation. By consent
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2Ultimately, Mother moved into a home two blocks away from Father’s home.
Id. at 109-10.
3 Father also requested emergency relief, alleging that Mother planned to take
J.N.A. to Puerto Rico. The court granted Father’s emergency relief by entering
an order prohibiting Mother from taking J.N.A. outside the continental United
States without Father’s consent.
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order entered on January 2, 2019, and later by another consent order entered
on November 18, 2019, Mother and Father agreed to shared legal custody,
primary physical custody with Mother, and partial physical custody with
Father. Father’s custodial periods shifted periodically, but he most recently
exercised physical custody every weekend.
The parties were operating under this custody arrangement when
Mother filed a petition to modify custody on July 31, 2020, seeking a more
specific holiday schedule based upon Father’s alleged refusals to share holiday
time with her. Mother then filed the August 7, 2020 notice of proposed
relocation that is at issue in this appeal. Mother indicated that she wished to
relocate with J.N.A. to Florida, Puerto Rico. Father filed a counter-affidavit
objecting to the proposed relocation and any modification of the existing
custody order.
Following a custody conference, the trial court entered an order on
October 14, 2020, prohibiting Mother from relocating with J.N.A. pending
further order of Court. The October 14, 2020 order also scheduled a hearing
on Mother’s relocation request, and set forth a specific holiday schedule and
directed the parties to follow it.
After a series of continuances, the court conducted a relocation hearing
on July 29, 2021.4 Mother testified that she wished to relocate because she
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4 J.N.A. was almost five years old at the time of the hearing. Neither party
requested that she testify.
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has an extensive support system in Puerto Rico. N.T., 7/29/21, at 35. She
emphasized that she moved to Pennsylvania because Father obtained
employment here, but she lacks support now that they are not together. Id.
at 35, 50, 61, 63. Mother planned to bring J.N.A. and her half-sister to live
with her mother (“Maternal Grandmother”) in Puerto Rico. Id. at 25-27, 35.
In addition to Maternal Grandmother, Mother’s cousins, aunts, uncles, and
friends live in Puerto Rico. Id. at 25. Mother has visited Puerto Rico four to
five times since moving to Pennsylvania, including once with Father and J.N.A,
and two other times with J.N.A. Id. at 25-26. Each time they have stayed
with Maternal Grandmother. Id. at 26. She also noted that Father has
cousins, aunts, and uncles in Puerto Rico. Id. at 41.
Mother asserted that she has been the primary caretaker for J.N.A. since
she was born. Id. at 14. She provides full time care to J.N.A. and J.N.A.’s
half-sister, age thirteen. Id. at 17-23. Mother stressed that her ability to
support herself in Pennsylvania without relying on Father was limited. Id. at
61-63. She described difficulties securing childcare for J.N.A. without a job
and an inability to get a job without childcare. Id. at 49. She noted she had
no family here to assist her or provide backup care. Id. at 61.
Mother did not want to rely on Father because she considered him to be
her abuser. Id. at 61, 63. According to Mother, she separated from Father
because she “felt afraid.” Id. at 11. She also felt like Father engaged in
“economic abuse;” he had “control over everything economically” and would
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not give Mother “a say on anything.” Id. He isolated her from people and
she could not talk to the neighbors or have friends. Id. She briefly worked
as a logistic assistant at a demolition company in 2018. Id. at 14, 48. Father
took care of J.N.A. while Mother was at work, but he often complained that
Mother should be caring for J.N.A. instead of working because she was J.N.A.’s
mother and he provided for the family economically. Id. at 15-16. Eventually,
she had to resign because Father refused to continue taking care of J.N.A. Id.
at 14.
During her testimony, Mother indicated she planned for the next chapter
of their lives in Puerto Rico. She researched schools in Puerto Rico to provide
J.N.A. with a similar experience to her education in Pennsylvania, including
assistance with speech therapy like she receives now. Id. at 30. Mother lined
up a job selling life insurance. Id. at 36-37. To support her case, Mother
presented the testimony of her prospective employer, the principal of the
private school to which she wished to send J.N.A., and Maternal Grandmother.
Regarding Father’s relationship with J.N.A., Mother suggested that
Father could have custody during summers and any other time J.N.A. is off
from school. Id. at 38. According to Mother, there are abundant direct flights
to Puerto Rico out of airports within driving distance, and when she and J.N.A.
flew there in May 2021, it cost $180 per person for a round-trip ticket. Id. at
39-41.
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In Mother’s view, it is J.N.A.’s best interest to move with her to Puerto
Rico because J.N.A. has lived with Mother and her half-sister since she was
born, and Mother has been her primary caretaker and her source of comfort.
Id. at 42. Mother maintained her need for support was such that she planned
to move to Puerto Rico without J.N.A. if the court did not permit J.N.A. to
relocate. Id. at 63.
For his part, Father presented the testimony of his mother (“Paternal
Grandmother”), who testified about her visits with J.N.A. in New Jersey, her
visits to Father’s home, and her plan to stay regularly with Father to assist in
the care of J.N.A.
Father also testified in opposition to Mother’s relocation request,
stressing that the home he owns in Lewisburg was the same home J.N.A. has
lived in since she was born. Id. at 109. The home is a three-minute walk
away from Mother’s house. Id. at 110. According to Father, he and Mother
moved to Pennsylvania because they had dreams of “a better life, a better
future for our kids, a quiet life.” Id. at 123. They wished to escape the “out
of control” crime in Puerto Rico and go somewhere where the job prospects
were better. Id. at 123, 128. Father also appreciated that they were in
driving distance from Paternal Grandmother and his father (“Paternal
Grandfather”), brother, uncles, and cousins, all of whom lived in New Jersey
or New York. Id. at 124. According to Father, his family visited J.N.A. at least
once a month. Id. at 125-26.
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Father testified he was in regular contact with J.N.A.’s teacher at the
Head Start program she attends. Id. at 111-12. Father testified about the
progress J.N.A. has made in the program, and the excellent education he
expected her to receive at the local public school when she started
kindergarten in the fall as compared to the schools in Puerto Rico. Id. at 115.
Father downplayed any notion that he abused Mother or that she was
afraid of him, asserting that while the civil no-contact order was in effect,
Mother spent time at his house daily and even went on multiple overnight
family getaways at hotels with him. Id. at 115-19. He contended the reason
she did not work was simply because his job required long hours; she took
care of J.N.A. and he took care of the bills. Id. at 161.
In addition to the custody relocation dispute, the trial court was tasked
with deciding a petition for contempt Mother filed just weeks before the
hearing. The dispute concerned who would exercise custody over the
Independence Day holiday. According to Mother, she reminded Father that
the governing custody order provided that she would have custody of J.N.A.
during the Independence Day holiday, even though it was a weekend and
normally Father’s custodial period. Id. at 33. However, Father refused to
return J.N.A. so the Mother could exercise custody. In fact, he did not drop
J.N.A. off until 8 p.m. on Monday, July 5, 2021. Id. at 31-34. When asked
by Mother’s attorney why he kept J.N.A. for Independence Day, Father
responded, “Because I believed that it was my time to have [J.N.A.].” Id. at
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138. He acknowledged the prevailing custody order, but maintained that he
had the right to keep J.N.A. in contravention of the agreement because Mother
“used to hold too, for the holidays.” Id.
On August 23, 2021, the trial court filed an order granting Mother’s
relocation request, modifying the custody arrangement to accommodate the
distance between the parties, and granting Mother’s petition for contempt.
Specifically, during the school year, the court awarded Mother primary
physical custody and Father partial physical custody as agreed upon by the
parties. The court provided Father with eight consecutive weeks of custody
during the summer and alternated the custodial time around Christmas
vacation between the parties. It also directed the parties to afford regular
reasonable contact through electronic means.
Father timely filed a notice of appeal and a concise statement of errors
complained of an appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). The
trial court complied with Rule 1925(a), filing its opinion on October 27, 2021.
Father presents the following issues for review:
I. Whether the trial court erred in failing to set forth, within
the time required for taking an appeal, its analysis [of] the
16 custody factors set forth in 23 Pa.C.S.A. § 5323(d) and
the 10 relocation factors set forth in 23 Pa.C.S.A. § 5337(h).
II. Whether the trial court erred in permitting Mother to
relocate to Puerto Rico with [J.N.A.] and in granting primary
physical custody to Mother.
Father’s brief at 5 (unnecessary capitalization omitted).
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Upon review of Father’s issues, we bear in mind the following standard
and scope of review.
[T]he appellate court is not bound by the deductions or
inferences made by the trial court from its findings of fact,
nor must the reviewing court accept a finding that has no
competent evidence to support it. . . . However, this broad
scope of review does not vest in the reviewing court the
duty or the privilege of making its own independent
determination. . . . Thus, an appellate court is empowered
to determine whether the trial court’s incontrovertible
factual findings support its factual conclusions, but it may
not interfere with those conclusions unless they are
unreasonable in view of the trial court’s factual findings;
and thus, represent a gross abuse of discretion.
R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa. Super. 2009)
(quoting Bovard v. Baker, 775 A.2d 835, 838 (Pa. Super.
2001)). Moreover,
[O]n issues of credibility and weight of the evidence, we
defer to the findings of the trial [court] who has had the
opportunity to observe the proceedings and demeanor of
the witnesses.
The parties cannot dictate the amount of weight the trial
court places on evidence. Rather, the paramount concern
of the trial court is the best interest of the child. Appellate
interference is unwarranted if the trial court’s consideration
of the best interest of the child was careful and thorough,
and we are unable to find any abuse of discretion.
R.M.G., Jr., supra at 1237 (internal citations omitted). The test
is whether the evidence of record supports the trial court’s
conclusions. Ketterer v. Seifert, 902 A.2d 533, 539 (Pa. Super.
2006).
A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014).
“[I]t is not this Court’s function to determine whether the trial court
reached the ‘right’ decision; rather, we must consider whether, based on the
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evidence presented, given due deference to the trial court’s weight and
credibility determinations, the trial court erred or abused its discretion in
awarding custody to the prevailing party.” E.B. v. D.B., 209 A.3d 451, 468
(Pa.Super. 2019) (citation and some quotation marks omitted). We have
explained,
[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.
D.Q. v. K.K., 241 A.3d 1112, 1117 (Pa.Super. 2020) (quoting Ketterer v.
Seifert, 902 A.2d 533, 540 (Pa.Super. 2006)).
Child custody actions are governed by the Child Custody Act, 23 Pa.C.S.
§§ 5321-5340. The primary concern in any custody case is the best interests
of the child. The Custody Act sets forth ten relocation factors and sixteen
custody factors that the trial court must consider when addressing whether a
proposed relocation and modification of custody serves the best interests of a
child. See A.M.S. v. M.R.C., 70 A.3d 830, 836 (Pa. Super. 2013) (“The trial
court must consider all ten relocation factors and all sixteen custody factors
when making a decision on relocation that also involves a custody decision.”).
As the party proposing relocation, Mother had the burden of proving that
relocation will serve J.N.A.’s best interest as set forth under § 5337(h), which
provides as follows.
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(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.
(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.
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(10) Any other factor affecting the best interest of the
child.
23 Pa.C.S. § 5337(h).
Additionally, because the relocation decision necessarily impacted the
parties’ existing custody award, the Custody Act required the trial court to
address the following sixteen custody factors.
5328. Factors to consider when awarding custody.
(a) Factors. – In ordering any form of custody, the court
shall determine the best interest of the child by considering all
relevant factors, giving weighted consideration to those factors
which affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and
another party.
(2) The present and past abuse committed by a party or
member of the party’s household, whether there is a
continued risk of harm to the child or an abused party and
which party can better provide adequate physical safeguards
and supervision of the child.
(2.1) The information set forth in section 5329.1(a)(1) and
(2) (relating to consideration of child abuse and involvement
with protective services).
(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.
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(8) The attempts of a parent to turn the child against the
other parent, except in cases of domestic violence where
reasonable safety measures are necessary to protect the
child from harm.
(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child adequate
for the child’s emotional needs.
(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and special
needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability
to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with one
another. A party’s effort to protect a child from abuse by
another party is not evidence of unwillingness or inability to
cooperate with that party.
(14) The history of drug or alcohol abuse of a party or
member of a party’s household.
(15) The mental and physical condition of a party or
member of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S. § 5328(a).
In his first issue, Father argues that the trial court’s one paragraph
analysis explaining its decision in its August 23, 2021 order was insufficient to
comply with the Custody Act’s requirement that the court delineate its
reasoning under the statutory factors prior to the time for appeal. Father’s
Brief at 14-16 (citing 23 Pa.C.S. § 5323(d)). Father claims the analysis fell
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short because the court did not relate its observations about the parties’
situation to the custody or relocation factors or indicate in whose favor any
particular factor weighed. Id. He also emphasizes that the analysis did not
mention abuse, yet the trial court made and relied upon findings of abuse
against Father in its subsequent Rule 1925(a) opinion. Id.
Father is correct insofar as the Child Custody Act requires the trial court
to “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). This Court has interpreted
§ 5323(d) as requiring a trial court to explain its analysis of the custody and
relocation factors “at or near the time it issues its decision in a custody
proceeding” and in advance of the appeal deadline. A.M.S., supra at 835.
However, “there is no required amount of detail for the trial court’s
explanation; all that is required is that the enumerated factors are considered
and that the custody decision is based on those considerations.” M.J.M. v.
M.L.G., 63 A.3d 331, 336 (Pa.Super. 2013).
Although the trial court’s Rule 1925(a) opinion explained the court’s
rationale and offered an analysis of each statutory factor regarding relocation
and custody, the court’s earlier order, entered on August 23, provided a more
condensed analysis of the factors. That rationale provided as follows.
After this [c]ourt’s consideration of the custody and
relocation factors attached, it is in the best interest of the child to
remain in the primary custody of Mother and for Mother to be able
to relocate with the child. Mother has always been the primary
caretaker of the child. Both parties have ties to/in Puerto Rico.
The parties met in Puerto Rico and lived there for a time before
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moving to Pennsylvania for Father’s employment. Mother is not
requesting to move in order to keep the child from Father.
Relocation will enhance Mother’s quality of life emotionally and
financially. As Mother is and has been the primary caretaker of
the child, said benefits will also benefit the child. Father’s
relationship with the child will be preserved through regular
electronic contact and periods of partial physical custody on
breaks from school and over the summer.
Trial Court Order, 8/19/21, unnumbered at 2. The trial court attached to the
order the enumerated custody and relocation factors and expressly stated that
it considered the attached factors in its analysis. Id. unnumbered at 2, 3-4.
While this abbreviated analysis did not cite the specific statutory
sections, it highlighted the assessment of the factors that most impacted its
decision to permit Mother to move to Puerto Rico and to modify the parties’
custody arrangement. Father laments the brevity of the court’s analysis, but
he fails to convince us that a remand is warranted or that he forfeited any
issue on appeal based upon the asserted error by the court. Thus, his first
issue fails. Accord M.J.M., supra, at 337 (determining the trial court
“adequately addressed” the statutory factors in its initial analysis and “merely
expanded upon its findings” in its Pa.R.A.P. 1925(a) opinion).
Father’s second issue broadly addresses whether the trial court erred in
permitting Mother to relocate with J.N.A. to Puerto Rico and disrupting their
current custody arrangement. Father dissects the trial court’s analysis factor-
by-factor, arguing, in essence, that Mother’s proposed move is a selfish and
ill-advised endeavor to take a job with speculative income in a crime-ridden
area with inferior education and to live in a smaller house, all in an unfair
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attempt to keep J.N.A. away from him and her paternal family. See Father’s
brief at 16-33. However, this argument did not sway the trial court, and is
contrary to the court’s factual findings, which are grounded in the record.
As this Court has commented, “[a] court should avoid dissociating the
issue of primary custody from the issue of relocation, and should instead
decide the two issues together under a single umbrella of best interests of the
children.” S.S. v. K.F., 189 A.3d 1093, 1098 (Pa.Super. 2018) (citations and
quotation marks omitted). This is particularly apt in this case, as Mother
testified she was “going to have to” move to Puerto Rico without J.N.A. if the
court did not grant her relocation petition. N.T., 7/29/21, at 63. Therefore,
the trial court was in the difficult position of having to decide whether to
separate J.N.A. from one parent for long durations and confront the potential
effects of changing her environment.
With respect to the relocation factors, the court found that § 5337(h)(6)
and (8) favored relocation, and the remaining factors were either neutral or
inapplicable. With respect to the custody factors, the court weighed
§ 5328(a)(1), (2), (3), (4), (6), (9), (13), and (16) in Mother’s favor. The
remaining factors were either neutral or inapplicable. That the court weighed
most of the custody factors in Mother’s favor and found most of the relocation
factors to be neutral suggests that after reviewing all of the factors, the trial
court determined that upsetting J.N.A.’s status quo in terms of location is less
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disruptive than disturbing the status quo in terms of maintaining Mother as
the primary caregiver.
Father rejects the trial court’s rationale and repeatedly tries to paint
Mother as a selfish parent.5 However, it is apparent from the court’s best-
interests analysis that it found Mother’s explanation for wanting to move back
to Puerto Rico to be sincere. See Trial Court Opinion, 10/27/21, at 1, 6-8
Moreover, the court was persuaded that the relocation would enhance
Mother’s quality of life. Id. As Mother testified during the hearing, she moved
to Pennsylvania so that Father could pursue better employment opportunities
than he had in Puerto Rico, and Mother hoped that she and her daughters
could thrive here. In her words, “it didn’t happen that way.” N.T., 7/29/21,
at 48. Instead, according to her testimony, Mother found herself a plane ride
away from her family, financially dependent on Father, and isolated from the
community. Id. at 11, 14.
Unsurprisingly, Father denied subjecting Mother to abuse, but even he
admitted he wanted to prioritize his work and did not support Mother’s
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5 For example, in attempting to undermine the trial court’s conclusion
regarding custody factor nine, that Mother is the parent most equipped to
maintain a loving, stable, consistent and nurturing relationship adequate for
J.N.A.’s emotional needs, Father insinuates that Mother could not possibly care
about J.N.A. because she “was more than willing to relocate to Puerto Rico
without her daughter.” Father’s brief at 24. Father’s exaggeration of Mother’s
testimony and his repeated attempts to paint Mother as an uncaring parent
did not sway the trial court and it certainly does not convince us that the trial
court abused its discretion.
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employment. Id. at 161. The certified record bears out that Mother obtained
a temporary PFA order against Father. Furthermore, Mother indicated that,
even if she can find childcare in Pennsylvania, something that she described
as challenging, she has no one to rely on in an emergency. In Puerto Rico,
however, she has housing, support of her family, childcare, and employment.
As the certified record supports that trial court’s factual findings and
assessment of credibility relating to the sincerity of Mother’s motives and the
potential enhancements to her life, we defer to the court’s determinations.
A.V., supra at 820.
Father quibbles with the trial court’s assessment of the first custody
factor, i.e., Mother is more likely to encourage frequent and continuing
contact, as well as the court’s determination in favor of Mother concerning
factor thirteen, i.e., that Mother was more likely to cooperate. Father’s brief
at 18, 25. However, there is no doubt that the court’s findings are supported
by the certified record. Perhaps most illustrative of this point is the fact that
just three weeks before the hearing, Father knowingly refused a court-ordered
custody transfer simply because he felt he was owed the day for some past
unspecified transgression. N.T., 7/29/21, at 138.
Similarly, although Father admittedly discouraged Mother from working
and relied upon Mother for childcare before and after their separation, Father
insists custody factor three, the performance of parental duties, should be
equal. Father’s brief at 22-23. Once again, the record supports the trial
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court’s finding. Mother testified at length to the care she has provided for
J.N.A. since birth, including feeding her, dressing her, taking her to
appointments, church, and her early childhood educational program, and
assisting her with virtual school during the pandemic. N.T., 7/29/21, at 17,
20, 23. Mother attends to all of J.N.A.’s medical and dental appointments,
compared to Father’s infrequent attendance. Id. at 17 (“[m]aybe once or
twice”). When J.N.A. was one year old, Mother noticed that she was not
“speaking as she should.” Id. at 21. Mother researched options, located a
speech therapy program for J.N.A., and ensured that J.N.A. participated. Id.
at 21-22.
Father, on the other hand, seemed to bolster his participation in caring
for J.N.A. For example, he insisted he always attended J.N.A.’s speech
therapy when he was not working, but on cross-examination he admitted that
when the therapist came to the home, he left the room during the therapy
and was in the “man cave that [he] designed.” Id. at 112-13, 150. Thus,
while it is true that Mother will have to balance caring for J.N.A. and working
in Puerto Rico, we discern no abuse of discretion in the trial court’s
determination that Mother has performed most of the parenting of J.N.A. to
date and is equipped to continue to do so. See M.J.M., supra, at 339(observing that custody factors three and four address implicitly address the
consideration of “which parent spent more time providing day-to-day care for
a young child”).
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Regarding custody factors two and sixteen, Father argues that the trial
court erred and abused its discretion in finding that he abused Mother.
Father’s brief at 19-22. Father argues even if Mother’s allegations were true,
the evidence of record is insufficient to constitute abuse as defined by the
Child Custody Act. Id. (citing 23 Pa.C.S. § 5322(a) (incorporating definition
of abuse set forth in the Protection from Abuse Act, 23 Pa.C.S. § 6102)).6
____________________________________________
6 The relevant portion of the Protection from Abuse Act provides as follows.
“Abuse.” The occurrence of one or more of the following acts
between family or household members, sexual or intimate
partners or persons who share biological parenthood:
(1) Attempting to cause or intentionally, knowingly or
recklessly causing bodily injury, serious bodily injury, rape,
involuntary deviate sexual intercourse, sexual assault,
statutory sexual assault, aggravated indecent assault,
indecent assault or incest with or without a deadly weapon.
(2) Placing another in reasonable fear of imminent serious
bodily injury.
(3) The infliction of false imprisonment pursuant to 18
Pa.C.S. § 2903 (relating to false imprisonment).
(4) Physically or sexually abusing minor children, including
such terms as defined in Chapter 63 (relating to child
protective services).
(5) Knowingly engaging in a course of conduct or repeatedly
committing acts toward another person, including following
the person, without proper authority, under circumstances
which place the person in reasonable fear of bodily injury.
The definition of this paragraph applies only to proceedings
commenced under this title and is inapplicable to any
(Footnote Continued Next Page)
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The trial court’s specific finding under factor two was that “Mother
testified she is fearful of Father and that Father subjected her to economic
abuse, control, and isolation. The [c]ourt finds Mother credible. [J.N.A.] is
not in danger.” Trial Court Opinion, 10/27/21, at 2. The court referenced
similar findings again in its discussion of the catch-all custody factor sixteen,
referencing Mother’s testimony that Father controlled the money and isolated
her from other people, as well as Mother’s testimony that she was a victim of
abuse by Father. Id. at 5. The court also recognized that Mother spent time
with Father, J.N.A., and her other daughter as a family while the no-contact
order was in effect. Id.
Mother did not testify to the specific incidents that prompted her to
obtain the temporary PFA order, nor did she elaborate upon the specifics of
the abuse that caused her to fear Father.7 Her testimony focused on financial
and psychological control and isolation. See N.T., 7/29/21, at 11, 14, 61-63.
While this dynamic certainly can be abusive, the noted conduct does not fall
____________________________________________
criminal prosecutions commenced under Title 18 (relating to
crimes and offenses).
23 Pa.C.S. § 6102.
7 Mother’s original cross-filed custody complaint averred that she obtained the
temporary PFA order due to an incident where Father pushed her while he was
holding J.N.A. See Mother’s Complaint for Custody, 10/22/18, at ¶ 7. Mother
did not offer testimony regarding this alleged incident at trial, and the PFA
court did not make any findings regarding this allegation because the parties
resolved Mother’s petition through a civil no-contact order without any
admissions of abuse.
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within the statutory definition of abuse, which we outlined in footnote six of
this memorandum.
Nevertheless, particularly given that factor sixteen, “[a]ny other
relevant factor,” gives the court wide latitude as part of its quest to “determine
the best interest of the child by considering all relevant factors,” 23 Pa.C.S.
§ 5328, Father’s argument fails to convince us that the trial court erred or
abused its discretion by mentioning Mother’s concerns as part of its analysis.
Overall, the court did not weigh Mother’s testimony as significant in terms of
the custodial arrangement, as the court did not mention it in the summary of
its rationale in its August 23, 2021 order or the core analysis in its Pa.R.A.P.
1925(a) opinion. See Order, 8/23/21, at 1; Trial Court Opinion, 10/27/21, at
1. Furthermore, the trial court explicitly found J.N.A.’s safety was not in
danger. Trial Court Opinion, 10/27/21, at 2.
Mother’s testimony is mostly relevant to Mother’s motive for relocating,
insomuch as it highlighted her lack of support system here in Pennsylvania.
The dynamics of Mother and Father’s relationship, even if not abusive within
the meaning of the Child Custody Act, have bearing on their ability to co-
parent. Thus, we discern no error or abuse of discretion in the trial court’s
consideration of Mother’s testimony and decline to vacate the order as Father
requests.
Father’s last set of arguments are geared towards critiquing the move
itself. See Father’s brief at 26-33. He again focuses on Mother’s alleged
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selfishness, highlighting his view that the move benefits only Mother. He
laments that J.N.A. will have to share a bedroom with Mother instead of having
her own bedroom at his house. Then, he sets forth rampant speculation that
Mother’s employment will be unsuccessful because it involves selling on
commission. Likewise, despite J.N.A.’s ability to receive speech therapy at
the private school proposed by Mother, Father posits that the school could
deny therapy to J.N.A., leaving the family without due process rights to
protest. Finally, he stresses that the move will disrupt his close relationship
with J.N.A., as well as end her frequent contact with paternal family members
who visit regularly from a neighboring state.
These arguments ignore that in many cases, the detriment to J.N.A. had
a corresponding benefit. For example, leaving Pennsylvania put J.N.A. further
away from her paternal family, but enabled her to be closer to her maternal
family. Father’s most compelling argument is distance; obviously, that
contact will require an airplane ride is not ideal and a significant change from
seeing Father every weekend. Nevertheless, the trial court considered the
distance and provided Father with a long continuous stretch of physical
custody each summer as well as school breaks. Recognizing that the current
arrangement is no longer an option, and that the alternative would require
separating J.N.A. from Mother and her half-sister for most of the year, the
trial court chose to prioritize the child’s relationships with Mother and her half-
sister. We discern no abuse of discretion in this choice.
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Essentially, Father’s arguments ask this Court to disrupt the trial court’s
careful balancing of the factors. This we cannot do. See M.J.M., supra at
339 (“It is within the trial court’s purview as the finder of fact to determine
which factors are the most salient and critical in each particular case.”). Given
that the trial court’s findings have ample support in the record, we will not
interfere with the court’s careful consideration of J.N.A.’s best interests and
balancing of all of the custody and relocation factors as a whole. Thus, we
affirm the trial court’s order granting Mother the ability to relocate with J.N.A.
to Puerto Rico and to exercise primary custody of J.N.A.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/27/2022
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