D.J.G. v. T.G. ( 2014 )

J-A27045-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
D.J.G., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
T.G.,
Appellee No. 698 WDA 2014
Appeal from the Order entered March 31, 2014,
in the Court of Common Pleas of Westmoreland County,
Civil Division, at No(s): 552 of 2009-D
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 24, 2014
D.L.G. (“Father”) appeals from the Custody Order continuing the
parties’ shared legal custody of their son, M.G. (“Child”) (born in October
2006), awarding T.G. (“Mother”) primary physical custody of Child, awarding
Father partial physical custody of Child, and granting Mother’s Petition to
Relocate with Child to Alabama, under the Child Custody Act (“the Act”), 23
Pa.C.S.A. §§ 5321-5340.1 We affirm.
Mother lives with Child and her nineteen-year-old daughter, C., in
Mount Pleasant, Westmoreland County, Pennsylvania. N.T., 3/17/14, at 41-
42. Father lives in Moon Township, Allegheny County, with his mother and
1
As the custody trial in this matter was held in March 2014, 23 Pa.C.S.A. §§
5321 to 5340, is applicable. C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa. Super.
2012) (holding that, if the custody evidentiary proceeding commences on or
after the effective date of the Act, i.e., January 24, 2011, the provisions of
the Act apply).
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stepfather. Id. at 187; N.T., 3/19/14, at 18. Father signed an
acknowledgement of paternity for Child, and has been adjudicated Child’s
legal father in prior legal proceedings. N.T., 3/17/14, at 43-47.
Mother and Father were never married. Id. at 48. Father resided with
Mother and C., and later with Child, between the summer of 2006 and
January 2009. Id. at 48-49. At that time, Father moved to his present
home. Id. at 49.
On March 26, 2009, Father filed a Complaint for Custody of Child. On
June 26, 2009, the trial court entered a Custody Order awarding the parties
shared legal custody, Mother primary physical custody, and Father partial
physical custody. Subsequently, the trial court scheduled a full custody trial
for February 2010.
On February 23, 2010, the trial court entered an Order modifying the
Custody Order with regard to Father’s partial physical custody rights. After
several modifications, on November 16, 2010, the trial court entered a
Custody Order, with the consent of the parties, awarding the parties shared
legal custody, and awarding Mother primary physical custody and Father
partial physical custody.
After other procedural matters not relevant to this appeal, including a
modification entered on November 27, 2012, Mother filed a Petition for
Modification of a Partial Custody or Visitation Order and Request for
Relocation (“Petition to Relocate”) on June 25, 2013. Mother sought
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permission to move to Alabama with Child, because of employment for her
fiancé, P.R. After an expedited hearing, the trial court entered an Order
denying Mother’s request for temporary relocation, and scheduling a full
relocation trial. Trial Court Order, 9/19/13. The trial court further appointed
a guardian ad litem (“GAL”) to represent Child’s interest. Id. Finally, the
trial court directed that the November 16, 2010 Custody Order, as modified
by the November 27, 2012 Order, would remain in effect.
At the full relocation trial, Child testified in camera, and was
questioned by Mother’s counsel, Father’s counsel, and the GAL. Mother
testified on her own behalf, and presented the testimony of P.R. Father also
testified on his own behalf.
Child testified that Mother had advised Child that it would be better if
Child moved with her to Alabama. N.T., 3/17/14, at 12. Child testified that
it would be “okay” if he stayed in Pennsylvania. Id. at 13. According to
Child, when he visited Alabama, it rained on two of the days, and Mother
almost flooded her car. Id. at 14. Child acknowledged that P.R. was nice to
him. Id. at 14-15.
Child testified regarding Father’s statement that Child would never see
Father again if relocation took place. Id. at 11. Child indicated that Father
had ceased making such statements at the request of the GAL. Id. at 11-
12. Child testified, however, that Father’s statement had scared Child. Id.
at 16. Child stated that he loves Father, and testified that if Child moved to
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Alabama and did not see Father for a few months, Child would run “all the
way from Alabama” to Moon Township. Id. at 20, 26. Child stated that he
did not want to move to Alabama because he did not like it there. Id. at 32.
He acknowledged that he had shared with the GAL his fear of not seeing
Father again. Id. at 32-34. Child acknowledged that he had told the GAL
that he wanted to stay with Father as his first choice, even if Mother did not
relocate to Alabama. Id. at 35-36.
Mother testified that she began dating P.R. in January 2011. Id. at
49-50. At that time, P.R. had a separate residence in Canonsburg,
Washington County, Pennsylvania. Id. at 50. In July 2013, P.R. relocated
to Decatur, Alabama, for purposes of his employment. Id. at 51. Mother
testified that P.R. contributes financially to the support of Mother’s
household. Id. at 51-52.
Mother testified regarding her employment as a training technician at
the 911th Air Lift Wing, at the Air Force base in Pittsburgh. Id. at 52.
Mother has a civilian/military job, where she is rated a GS-7 as a civilian,
and a tech sergeant E6 in the military. Id. Mother’s workday begins at
6:30 a.m., and ends at 3:00 p.m. Id. For her job, Mother travels fifty-six
miles to and from work, driving one hour and ten minutes each direction.
Id. at 53. Father’s home is approximately five minutes from the Air Force
base in Coraopolis, Moon Township. Id. at 60. Mother’s gross income is
$39,000. Id.
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Mother testified that she is on active duty status with the military. Id.
at 54. In July 2013, Mother was medically disqualified from worldwide duty
because of insulin dependence. Id. Mother applied for a waiver to allow her
to remain in her civilian portion of her duty at a desk job in Pittsburgh, but,
at the time of the custody trial, she had not received a final decision. Id. at
54-57. Upon relocation to Alabama, and if Mother is permitted to remain in
the military, Mother would continue to return to Pittsburgh for her reserve
weekends once per month, and her annual fifteen-day tour. Id. at 57-58.
Mother testified that Decatur, Alabama, is 676 miles from Mount Pleasant,
Pennsylvania, with a one-way travel time, by car, of eleven hours and
nineteen minutes. Id. at 59. Mother stated that she has traveled to
Decatur twice. Id. Mother drove both times, but P.R. has both driven and
flown to Decatur. Id.
Mother testified that she has completed all necessary courses for a
master’s degree in secondary education, with the exception of her student
teaching, and plans to pursue a career in education. Id. Mother did not
complete her student teaching because she could not afford to give up her
employment for nine weeks. Id. at 54.
Mother stated that she had been offered, via telephone, a job as a
director of the space camp at the Redstone Arsenal, an Army base located
fifteen minutes from Decatur in Madison, Alabama, at a salary of $60,000,
but declined the position because of the start date. Id. at 60-61. Mother
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testified that she also had been offered a job at Redstone Arsenal, in the
child development center, at her current rate of pay, and an Information
Technology (“IT”) position through Man Tech, which she declined because of
the start date. Id. at 61-62.
Mother has applied for assistance in locating a teaching position,
through a program called Troops to Teachers. Id. at 62. Mother explained
that, in living with P.R. in Alabama, she would be able to complete her
student teaching, with the assistance of a $5,000 grant from the Veterans
Administration and the Troops to Teachers program. Id. According to
Mother, she is not financially able to student teach in Pennsylvania, as she is
the head of her household and has expenses in excess of the $5,000 grant.
Id.
Mother testified that because she plans to live with P.R. in Alabama, it
is not critical for her to secure immediate employment, as P.R. has sufficient
income to support her and her two children. Id. at 62-63. Mother testified
that she could earn the same amount of money, if not more, in Alabama.
Id. at 63. Mother stated that the distance between her and P.R., and the
maintenance of two households, has placed a strain on their relationship.
Id. After P.R. moved to Alabama, Mother saw P.R. once a month, while he
was on military duty in Pennsylvania. Id. at 64. Since P.R. retired from the
military in February 2014, he no longer strains their finances by traveling to
Pittsburgh each month. Id.
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Mother testified that moving to Alabama will improve her life and the
life of her family. Id. Mother stated that she and Child are a family unit
with P.R., and that P.R. is close with Child. Id.
At the time of the custody trial, Child was attending first grade at
Rumbaugh Elementary School in Mount Pleasant, Pennsylvania. Id. at 65.
Mother looked into a school in the Madison/Huntsville area in Alabama,
which is rural, and looked into a school in Decatur, which is more urban and
similar to Penn Hills or Greensburg. Id. Mother stated that both school
districts are very good. Id. Mother testified that Child is developmentally
on target, and that he does not have any type of individualized education
program, nor does he need any type of medication, therapy or counseling.
Id. at 65-66. She stated that Child does not have any diagnosed behavioral
problems. Id. at 66.
Mother explained that Child has only visited Alabama once, in July
2013. Id. During the four days that Mother and Child spent in Alabama,
the temperature was 75 degrees, and the weather was rainy to the point of
flooding. Id. at 66-67. Mother has spoken to Child about moving to
Alabama, specifically the change in schools, the weather, and the availability
of swim teams, since Child swims. Id. at 67. Mother stated that Child is
active with a swimming team, and that Father has attended between four
and six swim meets over the past two years. Id. at 69. The swim team is
active year-round, but Child was taking the summer off. Id. at 69-70.
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Mother testified that, at first, Child wanted to move, but after speaking
with Father, Child believed that he would never see Father and therefore has
changed his mind. Id. at 68. Mother stated that, as a seven-year-old, Child
does not understand the situation, and does not wish to hurt the feelings of
either parent. Id. at 68-69. Father pays Mother $95 per month for child
support, and Mother pays for Child’s medical insurance. Id. at 70. Mother
stated that she would not relocate with Child until after the school year in
Pennsylvania has ended. Id. at 70-71.
Mother plans to move with Child into a three-bedroom house in
Decatur, which P.R. was renting, until they decide on a house to purchase.
Id. at 71. Mother explained that, under the Custody Order then in place,
during the school year, Father has partial physical custody of Child on
alternating weekends from after school until 7 p.m. on Sunday. Id. During
the summer, on his alternating weekends, Father has partial physical
custody from Friday at 6:30 a.m. until Monday at 3:00 p.m. Id. Father is
not employed. Id. at 72.
Mother testified that communication between her and Father is
terrible, and that he refused to pay expenses for Child’s school clothes in the
fall of 2013. Id. Mother explained that she and Father have communicated
through text messages for the past five years. Id. at 72-73. Mother stated
that Father had attempted to send her romantic cards when they were
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ordered to attend co-parent counseling, but stopped communicating with
Mother when he found out she was seeing someone else. Id. at 73.
Mother testified that, under the Custody Order then in place, as
modified, Father may call Child on Wednesday evenings, but has made little
contact by telephone, and only began contacting Child when he knew that
the parties were going to court. Id. at 73-74. Mother stated that the calls
last between two and five minutes, and that the call is on speakerphone,
because Child continues to play the Minecraft video game during the call.
Id. at 74. Mother testified that Father has not participated in Child’s parent-
teacher conferences or open houses at school, although she notified Father
about them. Id. According to Mother, Father takes Child at holidays so that
he can show off Child to his family. Id. Mother explained that Father has
two other children, but Child has not seen them since Father lost custody of
the other children three or four years ago. Id. at 74-75.
Child stayed with his maternal grandmother in Virginia for two weeks
in 2007, during Mother’s duty with the Air Force in Germany, and for two
weeks again in 2011, during Mother’s duty in Puerto Rico. Id. at 75. Father
declined to take physical custody of Child during those time periods. Id. In
2013, Mother stated, Father decided “he could be a stellar father” and
exercised physical custody of Child during her six-week military assignment
in Mississippi. Id.
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Mother proposed a custody schedule with Father having four to six
weeks with Child in the summer, and Child returning to Alabama
approximately two weeks before school starts. Id. at 75-76. Mother also
proposed that, if she stays in the military, she could bring Child to
Pennsylvania during her long weekends on duty. Id. at 76. Mother also
stated that Father may come to Alabama to see Child at any time. Id.
Mother states that she has offered to alternate Christmas and Easter
vacations with Father, and to allow Father to keep his $95 to allow him to
pay for air travel and gas so that he can make trips to Alabama. Id. at 76-
77.
Mother testified that, according to Child, Father speaks ill of her to
Child on custodial weekends, but Child’s statements are sometimes far-
fetched. Id. at 77-78. Mother believes that Child loves Father, but that his
love is based on a lie. Id. at 78. Mother opined that, although there will be
trauma for Child related to the move, Child is resilient enough to handle a
relocation to Alabama because he makes friends and adjusts to things
quickly. Id. at 78-79. Mother acknowledged that that she was reported to
the Children’s Bureau of Westmoreland County and investigated, but the
report was determined to be unfounded. Id. at 79-80.
Mother testified as to her concern that Father allows Child to play with
a BB gun, and to ride a quad vehicle at his home. Id. at 80. She also is
concerned that Child is hungry when she picks him up from Father’s home.
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Id. at 83. According to Mother, Father now sends Child back from visits
with a snack, such as soured grapes, which she considers to be a “feeble
attempt” to feed Child. Id. Mother testified that she never receives a
phone call from Child when he is at Father’s home. Id. at 162.
P.R. has lived in Decatur, Alabama since July 2013. Id. at 166-67.
P.R. explained that his property in Canonsburg was a marital asset in his
divorce proceedings, which are not yet completed. Id. at 167-68. P.R.
testified that he has been separated from his wife since March 2010. Id. at
168. P.R. retired on February 2, 2014, after twenty-six years of service in
the Air Force. Id. at 169-71. P.R. moved to Decatur, Alabama for a position
with a Defense Contract Management Agency (“DCMA”), as an inspector with
space crafts. Id. at 171. P.R. has searched for similar employment in the
Pittsburgh area for approximately two years. Id. at 174-75.
P.R. testified that he is renting a home in Decatur, and hopes to
purchase a home in the area. Id. at 175. P.R. explained that the cost of
living is lower in Alabama with regard to housing, utilities and gasoline. Id.
at 175-76. According to P.R., he drives twelve hours to Pennsylvania, once
per month. Id. at 177. P.R. stated that he calls Mother every day, and
occasionally speaks with Child. Id. P.R. likes Child, and plays Nerf guns
with him. Id. at 177-78. After his relationship became serious with Mother,
P.R. spent the majority of his time in her home and with her children. Id. at
178.
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P.R. assists Mother with her bills, and intends to continue if relocation
is approved. Id. at 179. P.R. is paid $75,000 a year at his current
employment. Id. P.R. testified that he would facilitate a relationship
between Child and Father. Id. at 180. P.R. has three daughters, ages 30,
23, and 22. Id. at 180-81. He indicated that, although not divorced, he has
proposed to Mother, and that his divorce was taking longer than expected.
Id. at 181. P.R. would prefer to live in Decatur, Alabama, where he would
have more money, a great job, and there would be more opportunities for
Mother. Id. at 182-83. P.R. indicated that, as a backup plan, he could
relocate back to Pennsylvania. Id. at 182.
Father testified that in 2009, he moved in with his mother and
stepfather, when Child was approximately three years old, and that he has
remained in their home. Id. at 187. During the school year, Mother picks
up Child from Father’s house on Sunday every other week, and she
sometimes picks up Child at 3:00 p.m. or 3:30 p.m. on her reserve duty
weekends, as the base is near Father’s home. Id. at 188. The then-existing
Custody Order, as modified, provided Father with one week of vacation time
with Child, alternating every other year. Id. at 188-89.
Father was honorably discharged from the United States Marine Corps
with a service-connected lower spine injury. Id. at 189. While Father was
dating Mother, he was considered to be 100% unemployable, and received
$3,200 per month. Id. at 190. At the time of the custody trial, Father was
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considered to be partially disabled, and received $1,124 per month as his
only source of income. Id.
Father testified that he has an excellent relationship with Child. Id. at
191. He rides sleds with Child in the snow, and plays Nerf guns with Child.
Id. Father also testified that he attended all of Child’s swim meets, and has
switched custodial weekends with Mother so that Child may compete in a
swim meet with both parents present. Id. at 190-91. Father explained that
he takes Child swimming at his local YMCA, and that he plays Minecraft on
Xbox with Child. Id. at 192-93. Additionally, Father testified that he plays
board games with Child, takes Child on camping trips, and shoots BB guns
with Child. Id. at 193. Father approves of Child’s use of the BB gun with
protective eyewear and proper supervision. Id. Father once allowed Child
to ride a quad, and provided Child with protective gear. Id. at 194.
Moreover, Father plays soccer, football, and baseball with Child, and takes
Child fishing. Id. at 194-95.
Father testified that Mother has refused to bring Child to his home
when it is not Father’s custodial time. Id. at 195. Father has difficulty
communicating with Child on the telephone because the calls are placed on a
speakerphone, and Child is distracted by playing Minecraft or being
questioned by someone in the background. Id. at 196. When Father leaves
a message at a time other than the appointed time for phone calls, his
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messages are not returned, or Mother refuses to allow him to speak with
Child. Id. at 197-202.
Father testified that he has attended Child’s swim meets, even in
Somerset, Pennsylvania, and has some of Child’s swimming ribbons from the
competitions. N.T., 3/19/14, at 4-9, 12-14. He stated that Mother has
refused to bring Child to his home when school was cancelled because of the
weather. Id. at 10-12. In June 2013, Father received a Father’s Day card
from Child, signed by Child, which he interpreted to mean that his
interaction with Mother was improving. Id. at 14-16.
Father took custody of Child for two months, during Mother’s active
duty time in Mississippi, and he had enrolled Child in school in the Moon
School District until her return. Id. at 33-34. Father stated that he did not
object when Mother went to Germany for active duty, and Child went to the
home of his maternal grandmother in Virginia for two weeks, as the custody
Order provided that Child was to spend one week a year with his maternal
Grandmother. Id. at 35-36. Father presented two receipts for clothing that
he had purchased for Child: a winter coat in October 2013, and children’s
clothing for Christmas 2013. Id. at 37-39. Father testified that it is not in
Child’s best interests to move to Alabama, because Child has been a part of
Father’s family in Pennsylvania. Id. at 42-43.
During cross-examination by Mother’s counsel, and upon questioning
by the trial court concerning his disability income, Father stated that, when
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he was receiving a full monthly benefit, his income totaled $3,124 per
month. Id. at 56. However, during a fraud investigation, Father’s 100%
unemployable status was changed to partially disabled. Id. at 54-57. The
investigation resulted in a determination that Father had not committed
fraud. Id. at 56-58. Father testified that the amount of his back pay was
being calculated, and he had not yet received it, and he did not want Mother
requesting more child support for Child. Id. at 58. Father also explained
that Child would be covered under Father’s health insurance when Father’s
income reinstatement occurred. Id. at 60.
Father testified that had not seen his two other children, males ages 15
and 13, for two or three years prior to the custody trial, but he was
uncertain as to the length of time. Id. at 66-68. Father explained that his
partial custody of his other two children was ordered to be supervised as an
outcome of family counseling. Id. at 86. He stated that he had not
exercised this custody for the last three years because he spent an
incredible amount of money on the litigation. Id. at 87. Father testified
that he was giving his two older sons a “dose of tough love,” and waiting for
them to pick up the phone and want to resume their relationship with him.
Id.
Father testified that he did not recall Mother asking him for money to
buy school supplies for Child. Id. at 76. When confronted with the
September 2012 text messages between Father and Mother, Father
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conceded that he told Mother to use her child support money for school
supplies, explaining that he was “just rattling her chains by saying use the
child support money.” Id. at 83. Father claimed that he was unable to
provide financial assistance for Child’s school supplies in the fall of 2013,
except for the jacket he bought for Child. Id.
Father stated that he takes seventeen prescription pills each day, and
could only name twelve of those prescriptions. Id. at 77-82. When
confronted, Father acknowledged that during a weather-related school
cancellation, Mother texted him that she would not bring Child to visit
because of the time of day and the weather. Id. at 84-85.
Father testified that he has discussed with Child the proposed
relocation, and indicated that to Child that he did not want relocation
because he loves Child. Id. Father testified that he did not believe Child
understood the travelling time, and that the matter was not being presented
in a way that Child could understand it. Id. Father told Child that there
would be times that they would not see each other. Id. at 88. He denied
leading Child to believe that he would never see Father again. Id.
Father testified that he was seeking primary physical custody of Child,
regardless of whether Mother remained in Pennsylvania or relocated to
Alabama. Id. at 88-89. Father stated that he, his parents, and extended
family would provide the environment that would be in Child’s best interests.
Id. at 89-90.
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On March 31, 2014, the trial court entered a Custody Order granting
the parties shared legal custody of Child, awarding primary physical custody
to Mother, and granting Mother’s Petition to Relocate with Child to Alabama.
On April 4, 2014, the trial court filed an Explanation of Decision.2
Father timely filed a Notice of Appeal and a Concise Statement of
errors complained of on appeal. See Pa.R.A.P. 1925(a)(2)(i) and (b).3 On
June 5, 2014, the trial court filed a Letter, which we accept as a Statement
in Lieu of a Rule 1925(a) Opinion, addressing the issues raised in Father’s
Concise Statement.
In his brief on appeal, Father raises one issue:
Whether the trial court’s conclusion that the best interests of
[Child] would be served by granting [Mother’s] [P]etition [to]
[R]elocat[e] to the State of Alabama is manifestly unreasonable
in light of the sustainable findings of record[?]
2
This Court has stated that
[i]n expressing the reasons for its decision, “there is no required
amount of detail for the trial court’s explanation; all that is
required is that the enumerated factors are considered and that
the custody decision is based on those considerations.” M.J.M.
v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013), appeal denied,
___ Pa. ___, 68 A.3d 909 (2013). A court’s explanation of
reasons for its decision, which adequately addresses the relevant
factors, complies with Section 5323(d). Id.A.V. v. S.T., 87 A.3d 818, 822-23 (Pa. Super. 2014).
3
We note that the trial court’s docket page has a clerical error, erroneously
listing the filing date as April 3, 2014, whereas the date stamp on the Notice
of Appeal and Concise Statement reflects April 30, 2014.
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Father’s Brief at 8.4
In custody cases, our standard of review is as follows:
In reviewing a custody order, our scope is of the broadest type
and our standard is abuse of discretion. We must accept
findings of the trial court that are supported by competent
evidence of record, as our role does not include making
independent factual determinations. In addition, with regard to
issues of credibility and weight of the evidence, we must defer to
the presiding trial judge who viewed and assessed the witnesses
first-hand. However, we are not bound by the trial court’s
deductions or inferences from its factual findings. Ultimately,
the test is whether the trial court’s conclusions are unreasonable
as shown by the evidence of record. We may reject the
conclusions of the trial court only if they involve an error of law,
or are unreasonable in light of the sustainable findings of the
trial court.
C.R.F., 45 A.3d at 443 (citation omitted).
The discretion that a trial court employs in custody matters
should be accorded the utmost respect, given the special nature
of the proceeding and the lasting impact the result will have on
the lives of the parties concerned. Indeed, the knowledge
gained by a trial 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).
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.
4
Father states his issue on appeal in his brief somewhat differently from the
issues stated in his Concise Statement. We, nevertheless, find it preserved
for this Court’s review.
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M.A.T. v. G.S.T., 989 A.2d 11, 18-19 (Pa. Super. 2010) (en banc)
(quotation and citations omitted).
Section 5338 of the Act provides that, upon petition, a trial court may
modify a custody order if it serves the best interests of the child. 23
Pa.C.S.A. § 5338. Where a request for relocation of the subject child along
with a parent is involved, the trial court must consider the following ten
relocation factors set forth within 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 non[-]relocating 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 non[-]relocating 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,
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including, but not limited to, financial or emotional benefit
or educational opportunity.
(7) Whether the relocation will enhance the general
quality of life for the child, including, but not limited to,
financial or emotional benefit or educational opportunity.
(8) The reasons and motivation of each party for seeking
or opposing the relocation.
(9) The present and past abuse committed by a party or
member of the party’s household and whether there is a
continued risk of harm to the child or an abused party.
(10) Any other factor affecting the best interest of the
child.
23 Pa.C.S.A. § 5337(h); see also D.K. v. S.P.K., 2014 PA Super 218, *6
(stating that the trial court is to consider section 5337(h) factors only when
a parent is relocating with the child). “All of the factors listed in section
5328(a) [(the best interests factors)] are required to be considered by the
trial court when entering a custody order.” J.R.M. v. J.E.A., 33 A.3d 647,
652 (Pa. Super. 2011) (emphasis in original).
In his brief, Father summarized his argument as follows:
The Trial Court erred in granting [Mother’s] Petition to
Relocate with [C]hild to the [S]tate of Alabama.
[Mother] changed her “story” about her plan for relocating
with [C]hild on multiple occasions, but the undisputed facts of
record showed that [Mother] was seeking to relocate with [C]hild
to the State of Alabama without having done a single search into
homes in that area. The facts of record also show that [Mother]
had done no research into which school [C]hild would attend,
that she was unable to even name the school district where he
would attend, that she was unable to identify the county where
[C]hild would live, and that she had no job lined up for her
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future employment. [Mother] offered no evidence showing that
the quality of life of [Child] would be improved with a move to
Alabama but rather, was clearly just interested in following
[P.R.] (a married man) to Alabama since his employment took
him there. The evidence clearly indicated that she desired to
alienate [Child] from [F]ather and replace him with [P.R.]
because he had more money than [Father].
In short, the Trial Court had facts before it which very
clearly required a denial of [Mother’s] request to relocate to the
State of Alabama since [Mother] failed to carry her burden of
proof under 23 Pa.C.S.A. Section 5337.
Father’s Brief at 20.
Father concedes that the trial court’s Explanation of Decision
addressed each of the section 5337(h) relocation factors, but complains that
the court’s analysis lacks substance. See id. at 23. In his Statement of
Questions Involved and Summary of Argument, Father does not challenge
the trial court’s consideration of the section 5328(a) best interests factors.
He simply argues that Mother failed to satisfy her burden of proof with
regard to section 5337(h). Id. at 20. Thus, Father has waived any
challenge to the section 5328(a) best interest factors. See Krebs v. United
Ref. Co. of Pennsylvania, 893 A.2d 776, 797 (Pa. Super. 2006) (stating
that any issue not set forth in or suggested by a Concise Statement of Errors
Complained of on Appeal and the Statement of Questions Involved section in
the appellate brief is deemed waived); see also Pa.R.A.P. 2116.
In addition to the above-stated issue, Father’s brief sets forth a string
of challenges to the trial court’s consideration with regard to factors
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5337(h)(1),5 (3), (4), (5), (6), (7), and (8) without providing any supporting
case law for each factor he challenges, and without providing any citations to
the record for his arguments. Moreover, Father does not divide his brief into
as many parts as there are separate questions to be argued, as he raises
numerous questions throughout his brief.
Pursuant to Pennsylvania Rule of Appellate Procedure 2119(a), “[t]he
argument shall be divided into as many parts as there are questions to be
argued . . . followed by such discussion and citation of authorities as are
deemed pertinent.” Pa.R.A.P. 2119(a). In addition, Rule 2119(b) provides
that “[c]itations of authorities must set forth the principle for which they are
cited.” Pa.R.A.P. 2119(b). “Appellate arguments which fail to adhere to
these rules may be considered waived, and arguments which are not
appropriately developed are waived. Arguments not appropriately
developed include those where the party has failed to cite any authority in
support of a contention.” Lackner v. Glosser, 892 A.2d 21, 29-30 (Pa.
Super. 2006) (citations omitted); see also In re W.H., 25 A.3d 330, 339
n.3 (Pa. Super. 2011) (stating, “where an appellate brief fails to provide any
discussion of a claim with citation to relevant authority or fails to develop the
issue in any other meaningful fashion capable of review, that claim is
waived.”).
5
Although Father states that his argument is with regard to the second
relocation factor, it appears to be with regard to the first factor.
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Accordingly, Father has waived the numerous arguments that are
interspersed in the Argument portion of his brief. See Lackner, supra; In
re W.H., supra; Pa.R.A.P. 2119(a), (b). Nevertheless, even if we did not
deem his arguments waived, we would conclude that they lack merit, based
on the explanations provided by the trial court in its April 4, 2014
Explanation of Decision.
Here, the trial court took into account the many factors which shaped
Child’s stated preference to remain in Pennsylvania, and found that Father’s
statements had influenced Child; Child’s preference was not well-reasoned;
and Child’s preference was based on his fear of never seeing Father again.6
See Explanation of Decision, 4/4/14, at 5. After a careful review of the
record in this matter, including the notes of testimony from the hearing on
September 17, 2013, and the custody trial on March 17, 2014, and March
19, 2014, we conclude that the trial court’s decision is not unreasonable,
based on the evidence before the trial court. The trial court’s findings as to
credibility and its weight determinations with regard to the evidence related
to section 5337(h) are sustainable. We therefore affirm on the basis of the
Trial Court’s April 4, 2014 Explanation of Decision. See Trial Court
Explanation of Decision, 4/4/14, at 1-19.
6
Regarding a child’s preference, this Court has long stated that the child’s
preference must be based on good reasons, and his intelligence must be
considered. McMillen v. McMillen, 602 A.2d 845, 847 (Pa. 1992). “The
weight to be given a child’s testimony as to his preference can best be
determined by the judge before whom the child appears.” Id.-23 -
J-A27045-14
With regard to Father’s argument that the trial court’s decision was
contrary to the recommendation of the GAL, Father failed to raise this claim
in his Concise Statement and Statement of Questions Involved; accordingly,
it is waived.7 See Krebs, supra. As the trial court’s findings and
conclusions are supported in the record, there was no abuse of discretion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/24/2014
7
Had Father preserved the issue, we would conclude that the trial court was
not bound to accept the recommendation of the GAL appointed in this case.
See M.A.T., 989 A.2d at 19-20 (recognizing that while a trial court must
consider the testimony of a custody evaluator, it is under no duty to follow
the expert’s recommendations, so long as its independent decision is
supported in the record).
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the minor child in Mt. Pleasant, Pennsylvania. It appears that the minor child has a good
relationship with his older half-sister. The minor child has two paternal half-brothers but they have
not seen Father since February of2011 2 and have no real relationship with the minor child. The
minor child testified that he has not seen his half-brothers since he was four (4) years old. The child
appears to have a close relationship with both parents and at least one of his half siblings.
Second, the Court must consider 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.
The minor child is seven (7) years old and is in the first grade at Rumbaugh Elementary
School in the Mt. Pleasant School District. Mother testified that if she were permitted to relocate,
she and the minor child would not move until the end of the school year so that the minor child's
education would not be disrupted mid-school year. The Court received no evidence that the minor
child currently has any special needs. While the Court acknowledges that any move can be hard for
a child, the Court finds that moving a child at this young age and during the summer is less
traumatic than moving an older child or moving a child during the school year. Mother testified
that there will be a period of adjustment for the minor child but that she feels that he makes friends
easily and that he will adjust pretty quickly once he has a chance to settle in.
Third, the Court must consider 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.
2The Court took Judicial Notice of Father's custody Order addressing Father's other two sons. The Order is dated
December 1,2011, and awards Father supervised periods of partial custody, at the children's request, pending Father's
completion of the custody evaluation. The Order further provides that once Father completes the psychological
evaluation, the matter was to be set up for an automatic review before the Court.
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In the instant case, the Court has entered an Order which provides Father with partial
custody time throughout the school year and with an extended period of time in the summer.
During the school year, Father is awarded partial physical custody of the minor child for Labor Day
weekend from Friday until Monday. Mother is to pay to fly the minor child to Pennsylvania and
home from this period of partial physical custody. In even-numbered years, Father shall have minor
child from the Wednesday before Thanksgiving until the Sunday after Thanksgiving, and again
from December 27 until the next to the last day of winter break. In odd-numbered years Father is
awarded partial physical custody of the minor child from the second day of winter break until
January 2. The Order of Court also awards Father partial physical custody for the President's Day
weekend from Friday until Monday. Mother is to provide airline transportation for the minor child
for the President's Day period of partial custody. Father is also awarded partial physical custody
with the minor child every spring break/Easter holiday. During the summer, Father is awarded four
(4) weeks of partial physical custody of the minor child from the last week in June through the third
week in July. The above schedule is based on the school calendar for the Decatur City Schools. 3
Father may also make arrangements with Mother to visit the minor child in Alabama provided
adequate notice is given under the Order.
Due to the distance and the costs of travel, the Court has ordered certain times that Mother
must fly the child to Pennsylvania so as to maximize Father's custodial time. The Court is very
aware of the rising costs of travel and it is the opinion of the Court that if Mother wishes to relocate,
she must bear the burden of the majority of the minor child's travel costs.
3 The first day of school for the 2014-2015 school year is August 7, 2014.
3
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In accordance with the Order of Court, Father will have partial physical custody time with
the minor child in the months of June, July, September, November (in even-numbered years),
December, January, February, and April. This is not including anytime that Father wishes to visit
with the minor child in Alabama.
Based on the above, the Court finds that the relationship between the Father and the minor
child can be preserved despite permitting the relocation of the minor child.
Fourth, the Court must consider the child's preference, taking into consideration the age and
maturity of the child.
The Court heard the testimony of the minor child in camera and in the presence of counsel
for both Mother and Father and the Guardian ad Litem. Due to the child's age and maturity level,
his preference was not given much weight by the Court.
The minor child testified that he does not want to move to Alabama and wants to live with
his Father. However, the minor child was told by his Father that ifhe was permitted to move to
Alabama, Father would never see him again. It is the opinion of the Court that the minor child
believes that he will not see his Father again if he moves despite being reassured by Mother and the
Guardian ad Litem. The minor child admitted that Father's statement scared him and that he was
afraid that he would never see his Father again. The Court also found that the minor child's first
Alabama experience was not a favorable one in that it was extremely bad weather and he observed
flooding for the first time. Mother testified and the Court agrees that the minor child thinks
Alabama is always going to have bad weather and flooding. Additionally, the minor child testified
that Father discusses the custody case with him a lot and that Mother told him that the move would
4
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make things better. The minor child further stated that he likes Pete Rose, Mother's fiance, and
that is who they would be living with in Alabama if the COUli permits the relocation.
In addition to the child's age and level of maturity, the Court found the minor child's
preference to be based on a fear of never seeing his Father again. The influence of Father's
statement on the minor child is very apparent to the Court and the Court does not feel that the minor
child's preference is well-reasoned.
Fifth, the Court must consider whether there is an established pattern of conduct of either
party to promote or thwart the relationship of the child and the other party.
The Court heard testimony from both parties that the other is attempting to interfere with
their relationship with the minor child. The Court finds that both parties are guilty of some level of
interference. However, the Court also notes that when push comes to shove, the parties seem to be
able to work out the majority of their differences without outside intervention.
Next, the Court must consider whether the relocation will enhance the general quality of life
for the party seeking the relocation, including, but not limited to, financial or emotion benefit or
educational opportunity.
The Court finds that Mother's general quality of life will be enhanced by relocating to
Alabama and moving in with her fiance. Mother testified that her current financial situation is
tenuous and she is facing the real possibility of losing her military/civilian position for health
reasons. She further testified that she is currently in the process of appealing the decision of the
military to medically disqualify her due to her insulin dependence. Mother's current civilian
employment is directly tied to her military position. While the Court finds that it is not immediately
necessary for Mother to locate new employment, it will become necessary if the military denies her
5
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appeal. Additionally, Mother's military obligation will terminate in one year. Unless the military
grants her appeal and Mother agrees to re-enlist in the military, it will become necessary for Mother
to locate new employment within the next year or so. Mother testified that there are a lot more
employment opportunities for her in Alabama and that she has already been offered a couple of jobs
in Alabama. Both Mother and her fiance testified that the cost of living is lower in Alabama and by
combining their households; they can reduce some of their expenses.
With regard to the emotional benefit of Mother's relocation, the Court finds that Mother has
been in a relationship with Mr. Rose since January of 20 11. They are engaged but have been
waiting to set a wedding date because Mr. Rose's divorce has not been finalized 4 and they were
waiting for the outcome of this court case. The parties have been in a relationship for several years
and appear to be quite close. The Court finds that Mother relocating to Alabama will provide
Mother with a large emotional benefit.
The Court must also consider whether the relocation will enhance the general quality of life
for the minor child, including, but not limited to, financial or emotional benefit or education
opportunity. The Court finds that the relocation will enhance the minor child's quality oflife. As
previously stated, the financial situation of Mother's household is tenuous at best. Mother is facing
the possibility of losing her employment within in the next year either because of her medical
condition or because her military obligation will come to an end. Mother further testified that she
has had to ask Mr. Rose to help her pay some of her bills when she is short on money. Due to
Father's current situation, he is unable to provide extra money for support of the minor child.
Father reluctantly testified that he is in the process of reestablishing his 100% unemployable status
4 Mr. Rose testified that his divorce case has been pending for approximately four (4) years.
6
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and will receive an increase in his benefits as well as back pay.s The relocation of Mother and the
child to Alabama to reside with Mr. Rose will reduce some of the expenses that Mother is paying
and should in tum provide Mother with more available money for things that the minor child may
need.
With regard to the emotional benefit, the Court finds that the minor child has never lived
with anyone except his Mother. The Court notes that there were three (3) brief periods oftime
when Mother was serving her military obligation and the minor child resided twice with the
maternal grandmother and once with the Father. Father testified that the two (2) times the maternal
grandmother had the minor child while Mother was completing her military time; the minor child
did not do well emotionally. Father had the minor child for six (6) weeks in 2013 while Mother was
in Mississippi completing a military obligation. Father testified that he had no issues with the minor
child. Father is seeking to stop the relocation of the minor child and is requesting primary physical
custody. If this Court granted Father's request, the minor child would be moving to a new county
and a new school near Father's residence. 6 The Court finds that any move can be tough on a minor
child but moving coupled with a complete change in primary physical custody is particularly hard
for a minor child. The Court finds that the minor child will benefit emotionally from making this
transition with Mother and maintaining the consistency and stability that he is used to. After
hearing the testimony of the minor child, the Court does not believe that it has even occurred to the
5 Father had been receiving full monthly benefits of$3124.00 until someone turned him in for fraud. While
investigating the fraud allegation, Father was moved from the status of 100% unemployable to 60% disabled which
drastically lowered his monthly benefits. The fraud allegation was investigated and it was determined that Father
committed no fraud and is now awaiting his final hearing to have his full benefits reinstated with back pay. Father
testified at trial that he was hoping this information did not come out because he did not want Mother seeking more
child support.
6 The Court acknowledges that in 2013, while Father had the minor child for six weeks, the minor child was enrolled
temporarily in a new school near Father's residence. The Court was not provided any information regarding whether or
not this is the school the Father would be enrolling the minor child in ifhe was awarded primary physical custody.
7
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discussions about the relocation is unacceptable but to then tell the child that he will not see his
Father again is reprehensible.
The Court further questions Father's motives for opposing the relocation and seeking
primary physical custody. The Court heard testimony regarding Father's relationship with his other
children. The Court took Judicial Notice of Father's most recent custody order in his other custody
case. 7 The Order is dated December 1, 2011, and provides that pending the completion of the
custody/psychological evaluation; Father has supervised partial physical custody with his other
minor children so long as they request time with their Father. The Order further provides that once
Father pays his 38% share of the evaluation costs and the evaluations are complete, the matter will
be set for an automatic review before the Judge. Father testified that he has not seen his other minor
children since early in February of 20 11, and that he is still hoping that the children decide to have a
relationship with him.
The Court has concerns about Father's motives because he has not taken any steps in his
other custody case to secure a relationship with his other children since 2011. It concerns the Court
that Father is seeking to replace his broken relationship with his other minor children with this
relationship. The Court applauds Father for being involved but it is concerning because it appears
that his regular involvement started once he realized that this child may be permitted to relocate.
The Court notes that Father always exercises his periods of partial custody but his involvement in
the child's activities and schooling seems to have come about within the last year.
It is for the above reasons that Court has found that Mother met her burden of proof in
accordance with 23 Pa. C.S.A.§5337(i)(1).
7The Court notes that it is also the Court for Father's other custody case. See Westmoreland County docket number
2209 of2002-D. The Court was involved in the case until20ll when all activity in the matter ceased.
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Custody
First, the Court must look at which party is more likely to encourage and permit frequent
and continuing contact with the other parent. In the instant case, the Court found that Mother was
more likely to encourage and permit frequent and continuing contact with Father. While it does not
appear that Mother is as willing to give "extra" time as she could be, the Court found that she was
more than willing to devise a proposed custody arrangement that provided time for Father to spend
with the minor child. Additionally, Father complains that Mother does not permit him to have
regular phone contact with the minor child. However, the Court recognizes that the minor child is
seven (7) years old and probably does not wish to speak on the phone for any great length of time
with anyone. Mother testified that there have been times that the minor child will speak with his
Father while he is playing video games or is otherwise distracted. The Court understands that this is
frustrating to Father but it is the nature of a young child. The Court does note that the minor child
rarely calls Mother when he is in his Father's custody.
Next, the Court looked at present and past abuse committed by a party or a member of the
party's household. The Court specifically asked the parties about prior abuse and Protection from
Abuse Orders (hereinafter "PFA"). It appears that Father's first wife had a PFA Order against him
back in 2003 and that Mother had two (2) PFAs against Father in 2009. Father also filed a PFA
against Mother. One of the PFAs between Mother and Father was cross-filed and both resulted in
one (1) year protection orders. There have been no recent PF A filings or allegations of abuse in this
matter.
In accordance with the recent amendment to 23 Pa. C.S.A. §5328, the Court will also
address any information regarding child abuse. The Court received no evidence from any of the
10
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parties that the minor child has been the subject of an indicated or founded report of child abuse.
Further, there was no evidence provided that Mother or Father or any member of their households
has been found or indicated as a perpetrator of child abuse. There are current Westmoreland
County Children's Bureau filings. Mother testified that the Westmoreland County Children's
Bureau did investigate an allegation against her but the allegation was unfounded and closed.
The Court acknowledges that Mother and Father lived together as an intact family until the
minor child was approximately two (2) years of age. Since that time, Mother has been the primary
caretaker for the minor child. The minor child has consistently lived with the Mother and Mother
has provided for the minor child's daily needs. The Court notes that only recently did Father
become involved in the minor child's activities and schooling. Father exercised his periods of
partial custody but was not overly involved with the child's activities such as swimming or school.
With regard to the need for stability and continuity in the child's education, community, and
family life, the Court found that both Mother and Father are providing the minor child with a stable
and loving home when he is in their custody. With regard to education, the Court notes that Mother
testified that Father never attended a parent-teacher conference or school open house. Father
presented no evidence to the contrary. With regard to continuity of family life, the minor child has
always resided with his Mother and his sister. The minor child would spend periods of partial
custody with Father but his school, community, and activities are all centered around Mother's
home. The Court acknowledges that the minor child is close to his Father's family but the Court
believes the custody order will provide plenty of opportunity for the minor child to spend time with
Father's extended family.
11
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Obviously, with any relocation, the minor child's community and education will be
temporarily disrupted until the minor child has had a chance to adjust to a new community and
school. However, Mother testified that she has already looked into the possibility of swim teams
for the minor child in the area of Decatur, Alabama. Mother testified that she would not be
relocating the minor child until after the school year ended. The timing of the relocation should
provide the minor child the opportunity to adjust to his new surroundings before he begins his
partial custody summer schedule with his Father.
Father requested primary physical custody of the minor child but provided the Court with no
testimony as to what school the minor child would attend, how he would handle childcare
arrangements, and what his proposed order would be if Mother was permitted to move or if Mother
elected not to move.
With regard to availability of extended family, the minor child appears to be close the
maternal grandmother and to the paternal grandmother and paternal step-grandfather. The minor
child has been to visit his maternal uncle in Kentucky but due to the distance, does not appear to be
overly close to him. Father testified about the minor child having a relationship with various
members of his extended family including cousins, uncles, and aunts. The Court finds that the
custody order will provide the minor child plenty of opportunity to spend time with Father's
extended family during the summer and over the holidays.
The Court also examined the minor child's sibling relationships. Mother has one other
child, a nineteen (19) year old daughter. She currently resides with Mother and the minor child.
The minor child seems to be close to her and was able to tell the Court all about her current
employment and the status of her college education. Father has two minor sons to his ex-wife. As
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previously stated, Father has not had a relationship with his minor sons since February of 20 11.
The minor child in this case testified that he has not seen his half-brothers since he was
approximately four (4) years old.
The Court previously discussed the well-reasoned preference of the child earlier in this
Explanation of Decision.
The Court also examined attempts of the parents to turn the minor child against the other
parent. As previously discussed, Father told the minor child that he would never see him again if he
moved to Alabama with his Mother. Father admitted to speaking with the minor child about the
relocation because he did not feel that Mother was being honest about the distance and time
involved if the child were permitted to move. The minor child admitted to the Court that his
Father's statements about the relocation scared him. Father's discussions with the minor child
deeply concerned this Court as Father clearly did not take the child's emotional well-being into
consideration prior to making the statement. Father put the child in fear unnecessarily and for his
own selfish gain. Father clearly put the minor child in the middle ofthis case. The Court did not
find that Mother has made any attempts to alienate the child from Father. The minor child told the
Court that his Mother told him that the move would be better.
The Court found that both Mother and Father are likely to maintain loving, stable
relationships with the minor child. The Court found that currently the minor child is close to both
parents. Despite Father's attempts to make Mother's relationship (and the minor child's
relationship) with Mr. Rose appear to be unstable, the Court finds that the relationship appears to be
solid and that Mr. Rose is a good influence on both Mother and the minor child. The Court had the
benefit of hearing Mr. Rose testify as to his current divorce situation. He also testified that it is very
13
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important for the minor child to spend quality time with Father and that he is committed to ensuring
that the minor child maintains a good relationship with Father. The Court found Mr. Rose to be
reasonable and caring about Mother and the minor child. Mr. Rose did not come across as someone
looking to replace Father or undermine his role as a parent. The Court further found that the minor
child likes Mr. Rose. The Court notes that Mr. Rose testified that if the relocation was denied, he
would attempt to locate employment in the local area. While the Court appreciates Mr. Rose's
dedication to his relationship with Mother and the minor child, there is no guarantee that he would
find suitable employment in the local area. Additionally, ifhe did manage to find suitable
employment in the local area, there is no guarantee as to the pay and benefits that would be
available to him and ultimately Mother and the minor child. Mr. Rose currently has a good job in
Decatur, Alabama and is more than able to establish a home for Mother and the minor child.
The Court found that Mother is likely to attend the daily physical, emotional,
developmental, educational, and special needs of the minor children. Mother has been the primary
caretaker of the minor child since the parties separated when the minor child was two (2) years old.
Mother has handled his education and been regularly involved in his school and activities. As
previously noted, Father has not attended any of the minor child's parent-teacher conferences or
open houses. Mother is the parent responsible for involving the minor child with his swim team.
While Father has recently started attending swim meets, Father credits Mother for helping make the
minor child an excellent swimmer. The child does not currently have any special needs and on
track to move onto the second grade next year.
With regard to proximity of residences, the Court will address this factor with regard to
Mother's relocation to Decatur, Alabama. Mother submitted an exhibit which indicates that the
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residences are approximately 676 miles with a drive time of a little over eleven (11) hours. Due to
the distance, the Court has ordered that Mother send the minor child to Pennsylvania via airplane
(for certain periods of partial custody) at her expense so as to maximize the child's time with
Father. The Court does not find it reasonable for the minor child to be in the car for that length of
time for every period of partial physical custody with Father. Additionally, the Court has ordered
that Father be given partial physical custody periods if he makes the trip to Alabama to see the
minor child.
The Court also examined each party's availability to care for the child and make childcare
arrangements. Father is currently unemployed and is usually available to the care for the minor
child. Father did not testify as who would provide childcare in his absence but the Court surmises
that he would use the paternal grandmother if she was available as Father currently lives with her.
With regard to Mother, it appears that the minor child is in school while Mother is at work or is in
daycare during the summer. Mother testified that she has used both maternal grandmother and
Father for childcare in the past. The Court also believes that the minor child's older half-sister
would also be able to provide childcare for Mother if necessary.
Mother and Father currently have a high level of conflict. The Court believes that this high
level of conflict is largely due to the current custody proceedings and Mother's desire to relocate.
Mother testified that the parties' ability to communicate is poor. Both Father and Mother submitted
text messages exchanged by the parties and it appears that they both need to make a better effort to
communicate with regard to their son. The Court also believes that the level of conflict has been
heightened because of Mother's unhappiness with her current situation. Mother is facing the
possibility of the ajob loss, her fiance has moved to Alabama for employment, her financial
15
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situation is tenuous and she does not feel that Father is doing his part to help financially with the
minor child. The Court feels that once Mother and the minor child relocate, Mother will be in a
much better situation and the situation between Mother and Father will improve. Ironically, Father
testified about receiving a Father's Day card from the minor child and how touched he was to
receive the card. The Court is confident that Mother helped the minor child purchase the card for
the Father. Father testified that the child is an incredible swimmer and he attributes that completely
to Mother and her work with the child. The above statements are proof that the parties are able to
see the good in the other and are able to find the value in the other parent.
With regard to a history of drug and alcohol abuse of the parties and/or members of their
households, the Court found that neither Mother nor Father has a history of drug or alcohol abuse.
There was no evidence presented at trial that any adult in this case suffered from a current or past
issue with drugs or alcohol.
The Court also examined the mental and physical conditions of the parties and their
household members. Mother testified that she is an insulin dependent diabetic. Father testified that
he has been declared 100% unemployable due to his various physical conditions. He suffers from
back issues, has had a major heart attack, had stents implanted, suffers from a blood disorder, had
ankle reconstructed, has bad knees, and has had his nose reconstructed. Father further testified that
he is currently on seventeen (17) different prescribed medications including Hydrocodone and
Vicodin for pain, a muscle relaxer, and Valium. The Court notes that Father was unable to name all
of the medications he is currently prescribed. Father testified that he does not believe his various
physical conditions will impair his ability to adequately parent the minor child.
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Opinion of the Guardian ad Litem
The Guardian ad Litem filed a report in this case prior to trial and then provided the Court
with a supplemental report at the conclusion of the trial. It is the opinion of the Guardian ad Litem
that Mother'S relocation with the minor child should be denied because of the uncertainties of what
is waiting for them in Alabama. The Guardian ad Litem feels that consistency and stability are
crucial for someone so young and to move the minor child to another state without certainty in the
details is not preferable. Further, the Guardian ad Litem believes the Court should give much
weight to the preference of the minor child. While acknowledging that a child of seven (7) years of
age should not be responsible for making such a life-altering decision, the Guardian feels his
position should be greatly considered given the totality of the circumstances in this case. With
regard to Father's request for primary physical custody, the Guardian ad Litem finds no merit in
switching primary custodians in this case. The Guardian believes that the minor child should have
consistency and stability in his life and changing the primary custodian would only serve to disrupt
those things. However, the Guardian is in favor of expanding Father's partial physical custody in
the summer.
The Court feels that it is important to note that while it has the utmost respect for the
Guardian ad Litem it sees this case very differently. The Court agrees that consistency, stability,
and certainty are all very important qualities and are necessary to properly raise a child. However,
the Court found that while there are some uncertainties associated with the relocation to Alabama,
there are plenty of uncertainties present in the child's life in Pennsylvania. Currently, Mother is
facing the loss of her job whether she is disqualified by the military or her military obligation ends.
Mother is currently the primary financial support for the minor child. The Court is in no way
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deciding this case purely on finances but the reality is that children are expensive and constantly
need clothing, food, and shelter. Mother has been consistently providing the essentials for the
minor child since his birth. The Court does not fault Father for his situation however, if Father was
a single father of the minor child, he would be required to get money in some fashion, whether it is
working or borrowing from friends and family, to provide the essentials for the minor child. A lack
of financial resources, regardless of which parent is struggling, creates all kinds of uncertainties for
a child. Mother is currently in a situation which is not one of her own making. She is facing a job
loss due to a medical condition. She has absolutely no control over the decision of the military.
Mother is currently struggling financially and she is working full time. If she loses her
employment, life for the minor child will change almost instantly. All of the consistency, stability
and certainty that the minor child appears to have will be lost. The Court finds that Mother is doing
the best she can with the situation she has been dealt.
The Court found that while the child's relocation has some uncertainties, the minor child's
current life has many uncertainties. The Court found the benefits of the relocation outweigh the
benefits of the minor child staying in Pennsylvania.
Additionally, the Court notes that Mother is currently working at the 911 th Airlift Wing in
Coraopolis, Pennsylvania. The 911 th Airlift Wing has been the subject of many recent news reports
due to a potential closure. The fate of the 9111h Airlift Wing is very much up in the air and many of
the local politicians have been fighting to keep it open. There is no guarantee as to how long it will
remain open and operational.
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After a complete trial on the matter, the Court is granting Mother's Petition for Relocation
and finds the custody arrangement, as set forth in the previously issued Custody Order, is in the best
interest of the minor children.
BY THE COURT:
Date: April 1, 2014
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Mich~le G. Bononi, Judge
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cc: Diane Murphy, Esq. for Mother
Heidi Norton, Esq, for Father
Patricia Elliott, Esq., Guardian ad Litem
file
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