B.D. v. M.D. ( 2019 )


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  • J-A05009-19
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    B.D.                                    :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    Appellant            :
    :
    v.                         :
    :
    M.D.                                    :
    :
    Appellee             :       No. 1292 WDA 2018
    Appeal from the Order Dated August 8, 2018
    In the Court of Common Pleas of Allegheny County
    Civil Division at No(s): FD18-007885
    BEFORE: GANTMAN, P.J.E., SHOGAN, J., and MURRAY, J.
    MEMORANDUM BY GANTMAN, P.J.E.:                     FILED MARCH 18, 2019
    Appellant, B.D. (“Father”), appeals from the order entered in the
    Allegheny County Court of Common Pleas, which granted primary physical
    custody of the parties’ three minor children (“Children”), to Appellee, M.D.
    (“Mother”), and granted Mother’s petition for relocation. We affirm.
    The relevant facts and procedural history of this case are as follows.
    Father and Mother married in Florida in 2007, and later they moved to
    Pennsylvania. During their marriage, the parties had three children. Following
    a tumultuous relationship involving alcoholism, anger issues, and abuse by
    Father toward Mother, the parties separated in January 2018.      Since their
    separation, Mother has had sole physical custody of Children; and Father has
    paid no support since April 2018. The parties are in the process of divorce.
    On July 6, 2018, Mother filed a Protection from Abuse (“PFA”) order
    J-A05009-19
    against Father, based on a threatening text message. A few days later, on
    July 10, 2018, Father filed a custody action requesting shared physical
    custody.    On July 13, 2018, Mother filed an answer and counterclaim for
    primary custody and a notice of relocation, as Mother had received a job offer
    in Florida. Father filed a counter affidavit regarding the relocation on July 18,
    2018. The following day, the parties entered into a consent order to resolve
    the pending PFA action against Father. The court also scheduled an expedited
    hearing for August 2, 2018. Following the scheduled hearing, the court issued
    an order and opinion on August 8, 2018, granting Mother’s relocation request
    and establishing the post-relocation custody schedule.             The custody
    arrangement provided for Mother to exercise physical custody of Children in
    Florida during the school year, while Father would exercise custody in
    Allegheny County for summer break, as well as during holidays.                On
    September 7, 2018, Father timely filed a notice of appeal and a
    contemporaneous concise statement of errors complained of on appeal
    pursuant to Pa.R.A.P. 1925.
    Father raises the following issue on appeal:
    WHETHER THE TRIAL COURT ERRED IN GRANTING
    MOTHER’S PETITION FOR RELOCATION FOR SIX RELATED
    REASONS, WHICH FATHER ARGUES AS SUBPARTS IN HIS
    BRIEF ON APPEAL?
    (Father’s Brief at 5-6).
    In reviewing a child custody order:
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    [O]ur scope is of the broadest type and our standard is
    abuse of discretion. This Court 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, this Court must defer
    to the trial judge who presided over the proceedings and
    thus viewed 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.
    S.J.S. v. M.J.S., 
    76 A.3d 541
    , 547-48 (Pa.Super. 2013) (internal citation
    omitted). Additionally,
    [O]ur Legislature adopted a new Child Custody Act (“Act”),
    effective on January 24, 2011. See 23 Pa.C.S.A. §§ 5321–
    5340. The new Act applies to “disputes relating to child
    custody matters” filed after the effective date of the new
    law. 23 Pa.C.S.A. § 5321. In E.D. v. M.P., 
    33 A.3d 73
    , 76
    (Pa.Super. 2011), we held that the Act applied to any
    proceeding, including a petition for relocation, initiated by a
    filing made after the effective date of the Act.
    
    Id.
     With respect to a custody order, Section 5328(a) provides:
    § 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
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    or member of the party’s household, whether there is a
    continued risk of harm to the child or an abused party
    and which party can better provide adequate physical
    safeguards and supervision of the child.
    (2.1) The information set forth in section 5329.1(a)
    (relating to consideration of child abuse and involvement
    with protective services).
    (3) The parental duties performed by each party on
    behalf of the child.
    (4) The need for stability and continuity in the child’s
    education, family life and community life.
    (5)   The availability of extended family.
    (6)   The child’s sibling relationships.
    (7) The well-reasoned preference of the child, based
    on the child’s maturity and judgment.
    (8) The attempts of a parent to turn the child against
    the other parent, except in cases of domestic violence
    where reasonable safety measures are necessary to
    protect the child from harm.
    (9) Which party is more likely to maintain a loving,
    stable, consistent and nurturing relationship with the
    child adequate for the child’s emotional needs.
    (10) Which party is more likely to attend to the daily
    physical, emotional, developmental, educational and
    special needs of the child.
    (11) The proximity of the residences of the parties.
    (12) Each party’s availability to care for the child or
    ability to make appropriate child-care arrangements.
    (13) The level of conflict between the parties and the
    willingness and ability of the parties to cooperate with
    one another. A party’s effort to protect a child from
    abuse by another party is not evidence of unwillingness
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    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.A. § 5328(a). In expressing the reasons for its decision, “there is
    no required amount of detail for the trial court’s explanation; all that is
    required is that the enumerated factors are considered and that the custody
    decision is based on those considerations.” M.J.M. v. M.L.G., 
    63 A.3d 331
    ,
    336 (Pa.Super. 2013), appeal denied, 
    620 Pa. 710
    , 
    68 A.3d 909
     (2013). A
    court’s explanation of reasons for its decision, which adequately addresses the
    relevant custody factors, complies with Section 5323(d). 
    Id.
    The new Act defines “Relocation” as “[a] change in residence of the child
    which significantly impairs the ability of a non-relocating party to exercise
    custodial rights.” 23 Pa.C.S.A. § 5322(a); C.M.K. v. K.E.M., 
    45 A.3d 417
    ,
    422-25 (Pa.Super. 2012). Section 5337 sets forth the procedures and factors
    governing relocation in relevant part as follows:
    § 5337. Relocation
    (a) Applicability.—This section applies to any proposed
    relocation.
    (b)   General rule.—No relocation shall occur unless:
    (1) every individual who has custody rights to the child
    consents to the proposed relocation; or
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    (2) the court approves the proposed relocation.
    (c)    Notice.—
    (1) The party proposing the relocation shall notify every
    other individual who has custody rights to the child.
    (2) Notice, sent by certified mail, return            receipt
    requested, shall be given no later than:
    (i) the 60th day before the date of the proposed
    relocation; or
    (ii) the tenth day after the date that the individual
    knows of the relocation, if:
    (A) the individual did not know and could not
    reasonably have known of the relocation in
    sufficient time to comply with the 60–day notice;
    and
    (B) it is not reasonably possible to delay the date
    of relocation so as to comply with the 60–day
    notice.
    (3) Except as provided by section 5336 (relating to
    access to records and information), the following
    information, if available, must be included with the notice
    of the proposed relocation:
    (i)    The address of the intended new residence.
    (ii) The mailing address, if not the same as the
    address of the intended new residence.
    (iii) Names and ages of the individuals in the new
    residence, including individuals who intend to live in
    the new residence.
    (iv) The home telephone number of the intended new
    residence, if available.
    (v)    The name of the new school district and school.
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    (vi) The date of the proposed relocation.
    (vii) The reasons for the proposed relocation.
    (viii) A proposal for a revised custody schedule.
    (ix) Any other information which the party proposing
    the relocation deems appropriate.
    (x) A counter-affidavit as provided under subsection
    (d)(1) which can be used to object to the proposed
    relocation and the modification of a custody order.
    (xi) A warning to the nonrelocating party that if the
    nonrelocating party does not file with the court an
    objection to the proposed relocation within 30 days
    after receipt of the notice, that party shall be
    foreclosed from objecting to the relocation.
    (4) If any of the information set forth in paragraph (3)
    is not known when the notice is sent but is later made
    known to the party proposing the relocation, then that
    party shall promptly inform every individual who received
    notice under this subsection.
    (d)    Objection to proposed relocation.—
    (1) A party entitled to receive notice may file with the
    court an objection to the proposed relocation and seek a
    temporary or permanent order to prevent the relocation.
    The nonrelocating party shall have the opportunity to
    indicate whether he objects to relocation or not and
    whether he objects to modification of the custody order
    or not. If the party objects to either relocation or
    modification of the custody order, a hearing shall be held
    as provided in subsection (g)(1). The objection shall be
    made by completing and returning to the court a counter-
    affidavit, which shall be verified subject to penalties
    under 18 Pa.C.S. § 4904 (relating to unsworn falsification
    to authorities), in substantially the following form…
    *     *   *
    (h) Relocation factors.—In determining             whether   to
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    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
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    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(a)–(d) (h). Moreover,
    [T]he party proposing relocation…bears the burden of
    proving relocation will serve the children’s best interests.
    See 23 Pa.C.S.A. § 5337(i). Each party, however, has the
    burden of establishing “the integrity of that party’s motives
    in either seeking the relocation or seeking to prevent the
    relocation.” 23 Pa.C.S.A. 5337(i)(2).
    S.J.S., 
    supra at 551
    . In all of these proceedings:
    [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. v. F.M.G., 
    986 A.2d 1234
    , 1237 (Pa.Super. 2009) (internal
    citations omitted).
    After a thorough review of the record, the briefs of the parties, the
    applicable law, and the well-reasoned opinion of the Honorable Cathleen
    Bubash, we conclude Father’s issue merits no relief.            The trial court
    comprehensively discusses and properly disposes of the question presented.
    (See Trial Court Opinion, dated October 15, 2018, at 5-11) (finding: court
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    fully considered custody and relocation statutory factors, which favored
    Mother’s relocation request and post-relocation custody schedule entered;
    evidence supported decision, based on safety and best interests of Children
    and benefits afforded to them through relocation with Mother). The record
    supports the court’s decision; therefore, we see no reason to disturb it.
    Accordingly, we affirm based on the trial court opinion.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 3/18/2019
    - 10 -
    '· '·i.   I   I   •f
    Circulated 03/08/2019 02:49 PM
    IN THECO.URJOF COMMON PL.EAS QF ALLEGHENY COUNTY( PEN'NSY:LVANJA
    FAMl�Y O!VISIO.N
    B, D.,                             OPINION
    Plqihtiff,
    No::   FD-18-007885-008:
    v.                              Sup.Ct. No;: l-292 WDA,20l5·
    M.D.. ,
    Detendont.
    BY:
    Honorable CoJhleen Bubash
    4AO. Ross Street
    SUife 5036
    PJttsourgh PA 15219
    COPIES fC):
    Counsel: :for Pl_c:iihtiff/Appeilant
    RoberfRover, Esq.
    ·Poilock .Begg Komar �.lasser .&. Vertz
    43(Granf    sr, Suite 501
    Pitt�b()tg_h, PA 152l9.
    C.o.unsei for Defendont:
    JohnJ. Romza, Esq.
    Law··offi¢�s of John J.     Romza;
    3380 sobcock Blvd.
    Pittsburgh, PA 1'5237
    iN THE COURT C)F COMMON PLEAS OF AL�E;<:;HENY COUNTY,. PENNSYLVANIA:
    FAMILY DIVISJ.ON
    Plaintiff,                    N·o.: FD-lB-007885
    v,                                            Sup, Covrt- No: 1292 W:DA 2018
    M.D.,
    Defendont.
    .OPINION
    Judge Cathleen Bubosh
    Father B.P:., [hereinotter "Pother"] hos oppeoled :fr.om my August            8; 2018
    Cus.tody Or:der grol'.1ting Mother M .Q.' s :(here1nafter :i:, Mother'°'). request to relocote
    to Iornpc; Florida: With the. Portles' three m_inor- childten. {hereinofter "the
    Chtdren"], My Order, entered after o one day trial, provided that Moth.er would
    exercise phystcol .custodv o.f the Chil.dre.h in Florida; during the· school veer. with
    Fother� exercising
    .       custody in Allegheny
    ., .
    CoiJnty· for the summer break, as we.II os
    ..
    during holidqys. secouse            my 'Order was   supported by the evidence presented
    and is. ln the best interest ofthe Children., it show Id be ·affirmed.
    Bqtkground
    .
    The Porties were rnorried. Jn: Florida: in 2007, ofter which they ·m.oved to
    Pittsburgh (TR. p. 21.). fdther's Mo.ther Jives in Pittsburg\\ they separated on            or
    obout Jonoorv ·20, 2018. The Parties' c�ildr�n were, aged 4, .5,         and 9· at· fhe time
    -�
    of trial) The marric:ige wos a turbulent one with both sides testifying to arguments,
    which often resulted ;in: violent altercations. Ultimqtely, on July $; 2018; Mother
    filed an ·Emergency Protectton from Abuse (11PFA") p�ti:t]o:n ogoinst Father which
    \ .
    was resolved by way of a: no-con ta.ct non..:PFA consent Orcie.r on J\JlY }9; 20 rs (JR.
    p. 27-,28).. 2
    At 'trial, I interviewed the chUdren·.      s·oth Parties testified.    Father introduced
    the testimony of a minister from the· fomily church and Po.te.mal: ·Gtdndmo.fher,
    who bas. been primarilY the caretaker for ·th.e Childre.n du.dng- the marriage and
    during Pother's custody time ..
    Mother is·a registered nurse.who was wor;king              port time at the date of trial
    and Father is ·employed fUJI time as an ecologist Mother was residing in the
    maritqJ home wffh the Children,: Whil.e Fatherwa�.prirn.ori.lY liv.fng:withhis mother in
    Penn Hills, .alt.hough he olso rented on oportment -close· py.; Mother testified :fhat
    :she- could not be· sure of lather'·s address. (TR. p . .- 25). Father•·s testimony, os Well .os
    Pcternol Qrandmotherrs, Was unclear regoroing When he· be{;ian: living wi.th her
    and whether he also spent overhig.hh at the qpqrtrnent ct times. TR. p.-l38-14Q)
    Ihe ParHes' versions. of their marriage· a.nc:l .sepcrctlon dittered, As will be
    discussed further below. Mothet festifi'ed that Father oft$n. eng_aged in heavy
    ddnklng; in obuse. and in ne_gllg�nt ·p.are.nt.ing_.. Mother _fl.,irth�.r" testified that Father
    did not seek to.exercse custody 'Of 'the. -children after separation. Folher testified
    that Mother kept the Children from him,
    1
    The thr.e.e Children q)J have varying tevels of speclol needs, The oldest boy has' ha_d some
    behqviorcil 'issues· bt.it ts -g good student. "The. middle d_qughter :s.uHers from selective mutism, on
    ,mxiefy. reloted disorder. and the· yo1:mger boy has developmental· speech delays; which may or
    rnqy· not be a result of Jrnpoired 'hearing.                                ·
    2
    Mother filed for the. PF.A'afteneceiving a text ·frc::>rn :F.otherwhic h .he da1ms,was mtsconsfrued.
    Fath�_n:j\d not, however, deny previous cctsol vlolencetestlfled to by Mother. includih�} the
    fearing 'Of doors from t!;leir hihg:es::{TR. p .: 40�·43),        ·           .
    Mother'.s 'testirnooy was more: c.r.ed.ib.1.e.: than- Fa.ther's ir.t most respects,
    ·tovnd ·thaf Father hos not demonstrated in.depe'nderit capabtfity. cs a- porer;.t.
    Whe.n he· hes custody of the .children;. he depends .on his :t.8-year-...Qid mother to
    provide them· wifh core. I olso found Mother·� mo·stly "i:.fhreJuted Iestimony
    re.garding some ·of Fat.her'-s actions with the Children ourihg the marriage to be
    alarming,
    I found that Mother's. move           to   Florldo :will b�n.efit her 'fihdhciolly and
    petson.afly ond tho.t ·the· Children will beneflt from the move as: welJ! J ·fowhd that
    the custodyschedule proposed by Mother will serve fo preserve the relotionship
    between father and the Children and that, s·hotJ_ld Father actually spend time
    wlth the Children when they- are in A:ilegbeny County, he is.Jikely to hovec more
    meaning_ful relctlcnshlp with. them than he. has. since the Parties:' seporoflon.
    Accordingly, I" entered my August          '.$, 2018 ()tder, granting Mothe.r'.s Petition to·
    Relocate·.
    In ·deciding-this cose and fo�h.ioriing rnvcustodv order, l.carefl.!!ly weighed
    the evidence presented and evalu.ated thqt evidence in Hght .of the· sixteen
    stctutorv custody factors of :23, Pa.C.S.A. ,§5328          cs well as §533:t-s   reiooation
    foctors. I found that c.ustody tooters 2, .3:, 4, 9·,: ·10;. ·12, end 14 Iovoreo .Mother,
    While the other teeters were mostly eqvally Weighted. Additionally, the sofe.ty of
    the Children was entitled to the grea.test weight' in rnvonolysls and I toundthot
    Fothet wos not competent to ensure the �afety of the Children without the
    csslsronce of his mother,         With regard to the; relocotlon toctors, I found that
    factors 1 2, 3', ·6, 7,
    r-            s. and,9 favored 'Mbfher and that the c;·h,ii:oren-'s: relocation.
    With Mofher. was in thei(besf interest,
    ,Q.n September 7,. 20     re. Father timely filed a Notice ofAppeolond Concise.
    Statement of Matters Comptcined ot ·on. Appeal. Father'"s assigt\ments of errors,
    read as follows:'
    4
    '-'A., The trial court �rted 1n grantingMother'-s. Petition fo(Relo¢otion_pursuont
    to: 23 Pa..C:S ..53$7' py permittihg· Mother to relocate With the Forties three
    !.3} children to Florida despite Mo.the.r foi.Hng· to lntreduce ony evidence,
    ·other than a mere jot:> otter, that the relocotlon was· in the chil.oren:'·s. best
    Jr\terest.
    '
    B. Thetrlof court erredin findirig;thq.t Mother.co.uld not fihct :a·full time nursing
    Job in 'the Plt"f{t:>wrgh oreo. as Mother never testifiec;I to the some, never
    introduced ooournentofion regoroing .her job search, ovt ·did tes.tify thot:
    she .had: been working.! ot flmes, four 14) dovs a w�ek sinc.e: the Parties
    separation.                               ·
    C. The 'trial ¢oi,Jt't erec ·in granting. Mother"s.Petition·for Relocotlon despite
    Mother failing. to have" a plon if her relocotlonwos grar)ted, cs evidenced
    by Mother -t�st1ty"ing to different addresses ot Which sh� wo.vld reside;
    ciifferent.schools tnat theehlldrtmwou!d,qttend, fai!ihg'to stqtethe doctors
    the 'children WH! see, and fdiling to- provide- :a concrete pl,an for the
    c::h,ldren···s core providers.
    D,, The trial court erred. in,gr.aiiting Mother's Petition tor R�l�n:otton despite
    making,a.sp·e¢ific;; fi1:10Jng that Mo.ther ha..s mode disparag,ingremark.s:oo.out
    �¢.ither in. the presence of the Children. ·
    f. The trie::,I court �tred: in granting Motrie.fs' Petition for Relocation despite
    Mother "failing. to    encourage a relotionshlp between Father oho· the
    · Chlidren. such .oslnter alia.,.:making .ci Iin.oing that Moth·er did no] provide
    oppropricte rnedlcc: core to-one the Port.i�.s· chlloren,
    '
    F. The 't[ial court erred in findihg thot· the-: cbildren will have. oh increosed
    quality of lif.e ·iii Tampa, Florida becouse .Mother has family ih· ·o.riondq,
    Which .is one end' a hall to two hour awoy· depending on trofflc a·nc;f with
    whom Mother has ct siroined relationship."
    Discussion
    With· ,any c.hild c.ustody case, [hcluding one in:volvi_n-g relocotlon. the
    porornount concern i's the· best interests of th� child.,          Se.e, Landis. v•.Lanc;tis; :869
    A.2d "1003 (Po,Super,2005). This stendord requires           q· cose-by-cose assessment        of
    oH of the. factors thqt may legJ.timat�ly of.f.ect the: "phvsicot. i_ntellect,uaL moral and
    spirituol well-being" pf the child. -Id. When: o custody dlspute.lnvolves. o request by
    Ci party to relocote. the Superior Court' has explolned. "there :is no- block letter
    formula that eosily resolves relocation disputes; rather, custodv ,aisputes are
    delicate issues that must be· handled              on- .ct   ccse-bv-cose bosis." BqJdwin     ·v�.
    8oldwir1, 7 ro: A.29- 6JO, q 14 (Pa'.Sup:er. 1998); 'C�M�J(. 'i..   K.E�M!I 2012 .PA S�per 76, 4S
    A.3d 4-17, 42J (2012).
    In the instant cose. neither parent presented as ideal, nor as pot�ntly unfi,t.
    Fath'er; however, has demonstrated that to dcte. he has not been a fl,)lly
    committed porent to his: c-hiloren, Jeaving fhetr care prfmorily" to Wife while the
    Portles. were living together end to his_ 'mother since sepcrofon.                    More.over(
    credlble ·tesfimony wos .introduced thof _Father has a history of severe ·.olcbhol
    ·apl)se·, suffersfrom unccntrolled ·anger wh.iG:h hos led to vio"lence which he.,is onlY'
    now oegihhing to.oddress. dhd has enQJaged ln behoviors which ore.donqerous
    to· his chilc;:l�en,
    s
    _2;3 Pa.,C:S-,A .. 5328 requires that; ln ·".ordering ohY form· of.custcdy, the co.urt
    shali oetermloe'the best in.teres,t of the chHd by ,c;:011sidering all relevant· factors,
    (jivin�f weighte.d consideration 'to those factors which aitec: the .sdfetv ot fhe
    thifd';..    23 Pa. CS.A. §: :5337 also requires, fhe court to give ''Wei_ghted
    considerctlon ·to those factors which affect the .s.afety of the c:;hild" When
    determining: whether. lt      j_s   in the best interest   of the   chlkfren to: grant· Dr deny c
    party's petition for reloconon,
    I found, :based oh the..evidence presented thct the Children were safest in
    Mother's custodv and w.e..ighted my onolvsls occordingly.                        TesHmony was
    Jnrroduced.      ano not refuted, thot f.atheflosf the youn9.est:Chil.d oto park in :2016
    When fhe Chilo wos two years old. resulting in the Child <::ros$.[ng :a_ street
    unqtt:ended (TR. p. 31-32}:: . that Father erected o:-danger.ous' condttion.ln .2Q:17 PY
    purpo�efully ldng the front           porch .of; the marital borne, resulting 'in the    Parties'
    6
    doughter lolling ond·striking_.her heod {TR. p. 32-33); and thot he Willfully 1.eft pain.
    re.Hevers where ·the.y could be noeessed by· the children .(TR. p, 3.3-35,).
    Mother t�stified that Father often drankJo the point of vo·rnJting: or:rd w.o.uld
    not clean lrup. '(TRl. p. 46-48'). 'Father. ac;:l_r:n.itted.·to ddnkin.g ·and vomiting end could
    not rerneJnber if he .cteoned it up, (TR. p ..2�7-2,3:s') .. :Mother testified to o          nl:Jmber·
    of incidence.s ot.obuse ot both herself and the children. Father had differen.'t
    expl'anation� for their injuries ond denied abusing the Children, but he dld not
    credibly· deny the lncidents ihvolving Mother.
    Because sofety of the Chilqte.h is entltled to the greatest weight in my
    analysis, fhe conslderctlons rcised bY the testimony qi.one: weigh heavily in
    Mother's         favor. despite faults she hos exhibited)            Noneth.el�ss:,   l   will oddress
    Pother's separate csserncns of errors below,
    A, Children's Besf lnterest
    Father   osserts ·that MQfher introduced -ori[y ·a "mere job ofter" to:
    dernonsfrote thqt .the move wov!d. be: in the ChildrenJs best lnterest To the
    contrary, however; .Mothet olso creqlbly testified, not -,only thot the Job .offer in
    :Pfor.idq ·offer.S her full time Work with higher pcv. benefits qnd the possibiiity of
    odvoncement. but fhat her efforts to obtoln twl! time employment in .Pittsburgh
    were previo1:J$..ly thwarted' by Fqther (TR. p •. 57�,56)., thdt Poternol Gr.andm.oth.er hos
    indicated she. is uncble to conflnue to provide conslsfent ch'Hdcare which w01,.J!.d
    require Mother·to obtoln paid childCO($ here ·(TR •. p. 59.).,. thotshehas friends and
    .   :f                                                             .
    famiiy :in FJorida whom her children know· and W.ho have offered to 'hel'p With·the
    Chlldren ·(TR.p.,5, �Q; 2'1�22,. :ef>Y:-68'}, ·andthat Flor\dcf has rrostcte.lncome tax.(TR.
    p,:55-56). Snectso testified that she hos, no family suppqrt:system in Pittsburgh (TR,
    � I otso found, 'Qased on ttie evi<:IE.}n�·e.,thottne Children w�re·sote,durihg Father's:cu�tooy time.
    since seporetlonbecouse th�y were olso with.1hJ� mother; With whom he cloims, to be living.
    7
    p, 38�3-9,). F.r"om this evidence, l determined the relocotion will :substc;tn.tiolly add ·to
    the qua.Jity of Mothets    iife end. consequentlv. to thotof the Childr�n�·
    B_. Lock of Full Time Work: in Pittsburgh
    Mother did      not lntrcdocedocumentotion o:f o job search in the: Pittsburgh
    orec, She did; however, testify 'that she has been o :registered nurse s'nce 2010
    (TR. p .. 20)· ond'·that when shedid :work: fu·n-t.ime os .c:r nurse ln PJtfsourgh, ·she: had
    to work weekends and evenlnqs. Shetfurther tesflfled that recent efforts to· obtain
    full time work al LJPMC were fruitless «md      thot sh.e: hos:no heaith benefits .available
    to her. Fofher' s assertion; that Mother works: four .days· a: week does not
    dernonsfrote tha.tfull trne wotk· is avalloble- to M.olhe(nor" does.It address how she
    I                                           .
    will .oftord health care after the ·divorce· ls fin·alizec:t
    c. Mot_h�(s: Relocation P.lan
    Pofher next cornololns that it WO$ error tot' me. to, grant M.other''s. peflflon
    when she did not hove o plcn for after relocoflon, Father asserts: this ls evidenced
    by the toct that the propos:ed address ln .Moth$.r' spetitlon differs· from ·the: oddress
    she testified to at fdoi. r finrovide �other-with c.ustody time· with the -ehHdren
    to ho :avail. {TR. p. 26-'27), She testifietl he .did hot spend time with them when
    they :were ostenslblv in his custody, Ihls teslfrnonY. was cortoborored by the
    testimony of both F,:c::1:ther and Paternal Grandmot:her, towhose heme th'3,Chiloren
    wenHor their custody time With Father. Pafernai Granctmoth.er testified that Father
    would .normally not.orrlve home from work. Until              ofter 7 pm when the Children were
    I
    getting,readyfor·bed so he hqq liftle time With_th.ern·.::(TR. p, 142}' .. father. howevet,
    4   M9ther i_nqicated she has been overwhelmed by the stress of the· qivorce·, the .octions ;l�aqing
    to the Parties':' seporcnor, aoq the ·filing of the PFA ,and realizes she failed to cddress.the Child'�s ·
    needs, She nos scheduled on oppolnfment with o specialist in Iornpo torthe yoi..>nQesf Child,
    9
    testifi.ed repeatedly thqf hisschedule was flexible, tnct he was-done with work by
    4:·30 Prfl and Jhaf he rarely worked weekends. :(TR. p 176). H� ;did not. however,
    spend. that time, with the ·Chil.dren ond hfs whereabouts ·after work and on
    .
    weekends'    was   never exploined. (TR. p, '233).     Father   .ctic.J not make   himself
    availaole. for the Chfldren even when he· could. lt Is Father, 'in rriy estimotioh, Who.
    failed to :strengthen hls relatiOJl"ship With. the Chlldren       by   fqilin·g ·to spend
    meaningful time with them and .-1e·avin_g iJ to his mother to provide care for them.
    F.- .Mof.her's Fomily Jn:f=lotida
    . tosrlv. Father claims ltwqs error for me. to find the Child.rent's: lives: Will be
    enhanced pyliving· closer to M'ofher\ fo.mHy ln Florida because ·they Jive two hours
    away from· her new home and have hod a straine.d relotlonship- with Mo·ther.
    Tbe proxi.rnr:tV'
    .         .
    of extended tornilY is but one o'f the factors to be· considered
    in :the weighing cif 'both the custody· dnd retoconon teeters. I :tbund it .er.edible
    thot Mother ·s family would be of osslsfcnce 'to h.er; cs-svtdenced by· the feet that.
    1
    with very lit·tle notice, they come to Pittsburgh to help with the Children .during the·
    trial. Both Poternol Crandmoth�r ond Father attempted to demonstrcfe thaf
    Mother1s parents would nof beo helpto her out I did not find them persuoslve.
    Mothercredlbly testified     that her Mother offE�red to be with the Children until: such
    time· os:Mother soccessfollv found cppropricte.betoteond after school childcare.
    Additionally, even if Mother··s parents: are· not consistently ova.iloble for childccre.
    their relative proximity tothe .Children, :dlong with Mother's ether relotives:'ih the.
    generoi crec. w.i!I be a benefit to the ChHoren wno deserve' to have a. relati.on.shiP
    With all of thefr relotives,
    Whi"le I. did consider the proximity· of ·Mothers. parents in my analysis, it was:
    far frorr» the most lmportcnt teeter .. More important to mv analysis. was the s.af.ety
    10
    of the Children, their need to be cared for by a parent. and the benefits afforded
    to them by relocating.
    Conclusion
    Because my August 8, 2018 Custody Order is supported by the evidence
    and serves the best interests of the Children, it should be affirmed.
    BY THE COURT:
    11
    

Document Info

Docket Number: 1292 WDA 2018

Filed Date: 3/18/2019

Precedential Status: Non-Precedential

Modified Date: 12/13/2024