J.M.N. v. S.L.N. ( 2015 )

J-A23045-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.M.N. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
S.L.N.
Appellee No. 338 WDA 2015
Appeal from the Order January 27, 2015
In the Court of Common Pleas of Allegheny County
Family Court at No(s): FD-13-007918-002
BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 02, 2015
Appellant, J.M.N. (“Father”) appeals from the order entered in the
Allegheny County Court of Common Pleas, which granted primary custody of
the parties’ children, B.F.N. and S.C.N. (“Children”), to Appellee, S.L.N.
(“Mother”) and granted Mother’s petition for relocation. We affirm.
Regarding both custody and relocation, the trial court findings present
the relevant facts of the matters in question. Nevertheless, we add a short
summary of the case and procedural history from the certified record for
context. The parties were married in September 2005 in Pennsylvania,
separated in July 2013, and finalized their divorce in July 2014. The parties
have two minor children of school age; the older child has developmental
challenges with an autism diagnosis. The younger child has also displayed
similar behavior consistent with the same problems. Mother has taken
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primary responsibility for Children’s care, counseling, therapy, and
education. In September 2014, Mother was offered a positive, professional
opportunity in West Virginia around the same time she learned that
Children’s Pennsylvania school district was discontinuing B.F.N.’s services.
Given the changed circumstances, Mother filed a petition on September 24,
2014, for relocation to West Virginia. On September 26, 2014, Father filed a
complaint for custody. The parties had previously enjoyed an informal and
cooperative custody arrangement, which deteriorated following the filing of
the relocation petition and custody complaint. In October 2014, Mother
married S.S. (“Husband”), who works in West Virginia.
In January 2015, the court held a two-day hearing on custody and
relocation. By order entered January 27, 2015, the court granted Mother’s
petition to relocate and granted Mother primary legal and physical custody of
Children, effective with the commencement of the 2015-2016 school year.
Meanwhile, the court ordered the parties to share legal and physical custody.
Father timely filed a notice of appeal on February 26, 2015, but he
failed to attach a concise statement of errors complained of on appeal per
Pa.R.A.P. 1925(a)(2)(i). The trial court issued a Rule 1925(a) “statement in
lieu of an opinion” on March 15, 2015, without the benefit of Father’s
statement of issues. On March 25, 2015, this Court ordered Father to file
his Rule 1925 statement, which Father timely filed on April 6, 2015.
Father raises the following issues for review, which were also included
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in his Rule 1925 statement:
WHETHER THE [TRIAL] COURT ERRED IN DETERMINING
THE BEST INTEREST OF THE [CHILDREN].
WHETHER THE [TRIAL] COURT ERRED IN CONSIDERING
ALL RELEVANT FACTORS OF 23 PA.C.S.A. SECTION
5328(A)(1), WHICH PARTY IS MORE LIKELY TO
ENCOURAGE AND PERMIT FREQUENT AND CONTINUING
CONTACT BETWEEN THE CHILD AND ANOTHER PARTY,
AND GIVING APPROPRIATE WEIGHT TO MOTHER’S
BEHAVIOR.
WHETHER THE [TRIAL] COURT ERRED WHEN ADDRESSING
23 PA.C.S.A. SECTION 5328(A)(4), THE NEED FOR
STABILITY AND CONTINUITY IN CHILD’S EDUCATION,
FAMILY LIFE AND COMMUNITY LIF[E], IN FINDING THAT
MOTHER HAS BEEN PRIMARILY RESPONSIBLE FOR
ENSURING STABILITY AND CONTINUITY IN [B.F.N.]’S
MEDICAL TREATMENT AND EDUCATION.
WHETHER THE [TRIAL] COURT ERRED WHEN ADDRESSING
23 PA.C.S.A. SECTION 5328(A)(10), WHICH PARTY IS
MORE LIKELY TO ATTEND TO THE DAILY PHYSICAL,
EMOTIONAL, DEVELOPMENTAL, EDUCATION AND SPECIAL
NEEDS OF THE CHILD, IN FINDING THAT MOTHER IS BEST
SUITED TO OVERSEE AND ATTEND TO CHILD’S
CONTINUING CARE AND TREATMENT.
WHETHER THE [TRIAL] COURT ERRED WHEN ADDRESSING
23 PA.C.S.A. SECTION 5328(A)(13), THE LEVEL OF
CONFLICT BETWEEN THE PARTIES AND THE WILLINGNESS
AND ABILITY OF THE PARTIES TO COOPERATE WITH ONE
ANOTHER, IN FAILING TO GIVE APPROPRIATE WEIGHT TO
MOTHER’S BEHAVIOR AND FINDING THAT CO-PARENTING
COUNSELING SHOULD ALLEVIATE THE BEHAVIORS OF
MOTHER.
WHETHER THE [TRIAL] COURT ERRED WHEN ADDRESSING
23 PA.C.S.A. SECTION 5337(H)(2), THE AGE,
DEVELOPMENTAL STAGE, NEEDS OF THE CHILD AND THE
LIKELY IMPACT THE RELOCATION WILL HAVE ON CHILD’S
PHYSICAL, EDUCATIONAL AND EMOTIONAL
DEVELOPMENT, TAKING INTO CONSIDERATION ANY
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SPECIAL NEEDS OF CHILD, IN FINDING THAT MINOR
CHILD’S NEEDS ARE BEING MET AT HIS CURRENT
SCHOOL, BUT BELIEVING THAT HIS NEEDS WILL BE MET
AT HIS PROPOSED SCHOOL.
WHETHER THE [TRIAL] COURT ERRED WHEN ADDRESSING
23 PA.C.S.A. SECTION 5337(H)(5), WHETHER THERE IS
AN ESTABLISHED PATTERN OF CONDUCT OF EITHER
PARTY TO PROMOTE OR THWART THE RELATIONSHIP OF
CHILD AND THE OTHER PARTY, IN FAILING TO GIVE
APPROPRIATE WEIGHT TO MOTHER’S BEHAVIOR.
WHETHER THE [TRIAL] COURT ERRED WHEN ADDRESSING
23 PA.C.S.A. SECTION 5337(H)(7), WHETHER THE
RELOCATION WILL ENHANCE THE GENERAL QUALITY OF
LIFE FOR CHILD, INCLUDING, BUT NOT LIMITED TO,
FINANCIAL, OR EMOTIONAL BENEFIT OR EDUCATIONAL
OPPORTUNITY, IN FINDING THAT THE EDUCATIONAL
OPPORTUNITIES WILL BE COMPARABLE TO THOSE
CURRENTLY AVAILABLE AND TO FIND THAT THERE ARE
MORE SOCIAL, SPORTING AND COMMUNITY RESOURCES
AVAILABLE FOR CHILDREN IN THE AREA OF RELOCATION.
(Father’s Brief at 10-12).
In reviewing a child custody order:
[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
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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
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.
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(7) The well-reasoned preference of the child, based
on the child’s maturity and judgment.
(8) The attempts of a parent to turn the child against
the other parent, except in cases of domestic violence
where reasonable safety measures are necessary to
protect the child from harm.
(9) Which party is more likely to maintain a loving,
stable, consistent and nurturing relationship with the
child adequate for the child’s emotional needs.
(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and
special needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or
ability to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with
one another. A party’s effort to protect a child from
abuse by another party is not evidence of unwillingness
or inability to cooperate with that party.
(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,
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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
(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
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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.
(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
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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
grant a proposed relocation, the court shall consider the
following factors, giving weighted consideration to those
factors which affect the safety of the child:
(1) The nature, quality, extent of involvement and
duration of the child’s relationship with the party
proposing to relocate and with the nonrelocating
party, siblings and other significant persons in the
child’s life.
(2) The age, developmental stage, needs of the
child and the likely impact the relocation will have on
the child’s physical, educational and emotional
development, taking into consideration any special
needs of the child.
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(3) The feasibility of preserving the relationship
between the nonrelocating party and the child
through suitable custody arrangements, considering
the logistics and financial circumstances of the
parties.
(4) The child’s preference, taking into consideration
the age and maturity of the child.
(5) Whether there is an established pattern of
conduct of either party to promote or thwart the
relationship of the child and the other party.
(6) Whether the relocation will enhance the general
quality of life for the party seeking the relocation,
including, but not limited to, financial or emotional
benefit or educational opportunity.
(7) Whether the relocation will enhance the general
quality of life for the child, including, but not limited
to, financial or emotional benefit or educational
opportunity.
(8) The reasons and motivation of each party for
seeking or opposing the relocation.
(9) The present and past abuse committed by a
party or member of the party’s household and
whether there is a continued risk of harm to the child
or an abused party.
(10) Any other factor affecting the best interest of
the child.
23 Pa.C.S.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:
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[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 Susan
Evashavik DiLucente, we conclude Father’s issues merit no relief. The trial
court comprehensively discusses and properly disposes of the questions
presented. (See Trial Court Opinion, filed March 30, 2015, incorporating its
Findings of Fact and Order, filed January 27, 2015, at 1-12) (examining each
relevant factor under applicable statutes; concluding custody and relocation
decisions are in Children’s best interests). Accordingly, we affirm on the
basis of the trial court’s opinion, incorporating its January 27, 2015 Findings
of Fact and Order.
Order affirmed.
Judgment Entered.
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Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/2/2015
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IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY~ PENNSYLVANIA
FAMILY DIVISION
J.N. No. FD l 3-007918-002
Plaintiff,
Superior Court# 338 WDA 2015
v. CHILDREN'S FAST TRACK
S.N. STATEMENT IN LIEU OF OPINION
PURSUANT TO Pa. R.A.P. 1925(a)
Defendant.
BY:
JUDGE SUSAN EV ASHA VIK DI LUCENTE
704 City County Building
414 Grant Street
Pittsburgh, PA 15219
COPIES TO:
Counsel for Plaintiff:
Sandra McPherson, Esquire
319 Maryland Avenue, Suite D
Oakmont, PA 15139
Counsel for Defendant:
(f) David M. Charles, Esquire
t.n
~
oz:f
.1:~c.,
o;]i>- 436 Boulevard of The Allies
N 1:...:.-i--
Suite 500
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a... t``·;r_, Pittsburgh, Pa. 15219
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5U983 A.2d 745, 747R48 (Pa. Super. Ct. 2009). Rather, the disposition of
cases wherein the foregoing rules have been ignored is made on a case-by-
case basis. See id. at 747. This Court sees no reason to further comment on
Father's procedural omissions due to the existence of the Court's previously filed
Findings of Fact and Order of Court, which set forth the Court's rationale for
entering the order Father now challenges.
Accordingly, pursuant to Pa.R.A.P. 1925(a), the Findings of Fact and Order
of Court dated January 27, 2015, copies of which are attached hereto, shall
serve as this Court's opinion with respect to Father's present appeal.
BY THE COURT:
Dated :_J 3_0_( _lS_
...._l
Susan Evashavik Dilucente
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IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
FAMILY DIVISION
No. FD 13-007918-002
Plaintiff,
v. FINDINGS OF FACT
AND ORDER OF COURT
BY:
Defendant.
JUDGE SUSAN EVASHAVIK DILUCENTE
704 City County Building
414 Grant Street
Pittsburgh, PA 15219
COPIES TO:
Counsel for Plaintiff:
Sandra McPherson, Esquire
319 Maryland Avenue, Suite D
Oakmont, PA 15139
Counsel for Defendant:
David M. Charles, Esquire
436 Boulevard of The Allies
Suite 500
Pittsburgh, Pa. 15219
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IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
FAMILY DIVISION
Plaintiff, No.: FD 13-007918-002
v
Defendant.
FINDINGS OF FACT
AND NOW, to wit, this J7t' day of __J1:~.,..-· , 2015, following
January 15 and 23, 2015 trial in the above captioned matter, this Court being
required to "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" pursuant to 23 Pa. C.S.A. § 5328(a), hereby makes the following
findings:
( l ) Which party is more likely to encourage and permit frequent and
continuing contact between the child and another party.
The Court finds that Father is slightly more likely to encourage and permit
frequent and continuing contact between the children and the other parent.
Prior to the commencement of the subject litigation, the parties amicably and
privately resolved their custody arrangements. Neither party filed an action for
custody or sought legal intervention on any custodial issue. The parties agreed
that generally the weekly custody divisionwas 2 nights at Father's home and 5
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nights at Mother's home. Father testified that he also saw the children almost
daily, after school or at dinner. Mother denied that this extra contact was
consistent or daily. Regardless of the precise schedule, however, the parties
were obviously satisfied with their custody arrangement. They cooperated with
each other and promoted the children's contact with one another. This
arrangement worked well and both parties maintained strong loving bonds with
the children.
Once the subject litigation commenced, the parties' relationship
deteriorated. Mother did deny Father additional custody time. While the Court
does not condone this behavior, the Court believes that Mother was anxious
about the impending trial and did not wish to change the status quo, as she
defined it. While legal posturing is not in the children's best interests. the Court
believes this behavior will cease with the conclusion of the subject litigation.
(2) The present and past abuse committed by a party or member of the
party's household, whether there is a continued risk of harm to the child or
an abused party and which party can better provide adequate physical
safeguards and supervision of the child.
This factor is not applicable.
(3) The parental duties performed by each party on behalf of the child.
The Court finds that the parties are equally capable of fulfilling their
parental duties.
(41 The need for stability and continuity in the child's education, family life
and community life.
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Both parents provide stability and continuity in the children's life. Mother,
however, has been primarily responsible for ensuring stability and continuity in
B,f.N:s medical treatment and education.
(5) The availability of extended family.
Both parents have extended family available, who have developed close
bonds with the children. Mother's family is in West Virginia, but they see the
children on a regular basis.
(6) The child's sibling relationships.
The subject children are closely bonded and have no other siblings.
(7) The well-reasoned preference of the child, based on the child's
maturity and judgment.
Not applicable due to the age of the children.
{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.
This factor is inapplicable.
(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.
The Court believes that both parents will maintain loving, stable,
consistent, and nurturing relationshipswith the children.
( 10) Which party is more likely to attend to the daily physical, emotional,
developmental. educational and special needs of the child.
Mother has been primarily responsible for attending to the children's
medical, developmental, and educational needs. Fathertestified that the
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parties worked as a team. He contended that while Mother was the primary
contact for ,S.t.N.';third party providers, he was actively involved in the child's
treatment. While this situation develops for many married couples, the pertinent
fact remains that Mother has always been primarily responsible for these needs
of the children.
The testimony clearly and unambiguously revealed that Mother has been
!?>J). !,'1 primary medical and educational caretaker. Mother is the parent who
educated herself in B.f.r'1.'s condition and researched the services available for
him. Mother oversaw and participated in those services, and aggressively
advocated for the provision of the same. The Family Behavioral Resource
records and other exhibits clearly reflect Mother's primary role in this regard.
This Court is not finding that Father was apathetic or disinterested in (:f N.'5
care. Rather, he assumed a more passive role. Nevertheless, the reality is that
Mother is better situated to oversee and attend to b.F.t.l.'.scontinuing care and
treatment. Likewise, Mother testified that .S.C.r,'.has exhibited some concerning
behavior and she is seeking services on his behalf as well. As with 0.f.~.J this Court
believes that Mother will take a more proactive role in serving 5.t..N:~ special
needs, if any, than Father.
( 11 ) The proximity of the residences of the parties.
The parties currently live close enough to each other that they can easily
exchange custody. Mother's proposed relocation is discussed below.
( 1 2) Each party's availability to care for the child or ability to make
appropriate child-care arrangements.
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Overall, both parties' work schedules permit them adequate time to care
for the children. In addition, both parties have family members to assist them
with child-care.
( 13) The level of conflict between the parties and the willingness and
ability of the parties to cooperate with one another. A party's effort to
protect a child from abuse by another party is not evidence of
unwillingness or inability to cooperate with that party.
Most custody disputes entail some level of conflict between the parties. It
appears to this Court that the parties cooperated with each other until Mother
remarried. This is not unusual, and the conflict may have abated over time.
Here, however, the conflict was exacerbated by Mother's decision to relocate.
While the conflict should lesson upon the conclusion of this litigation, Mother
must repair her relationship with Father.
Mother and her husband, · '5 . 5 , have taken the position that
Father is hostile and volatile. S.S. refusesto communicate with Father,
and testified that he would only contact him in an emergency. Mother testified
that she is fearful and reluctant to communicate with Father. This position is not
supported by the evidence. The parties had a strong relationship prior to
Mother's remarriage. Father's efforts to meet and discuss parenting, etc. with
Mother's husband were reasonable.
This Court believes that rather than attempt to encourage a relationship
between her husband and Father, Mother has elected to "choose" her
husband's side in this rift. There is no reasonable basis for this rift, and the Court
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finds that its development was caused by Mother's husband. If Mother does not
remedy this problem, the children will be adversely affected. The Court
believes that co-parenting counseling, which is ordered below, should alleviate
this conflict.
{14) The history of drug or alcohol abuse of a party or member of a party's
household.
The Court finds that this factor is inapplicable.
(15) The mental and physical condition of a party or member of a party's
household.
The Court finds that this factor is inapplicable.
( 16) Any other relevant factor.
The Court finds that this factor is inapplicable.
ln sum, both parents have strong loving relationships with the children and
are capable of meeting their general needs. Mother, since her remarriage, has
been less cooperative and communicative with Father. Mother, however, has
proven herself to be more proactive and involved with the children's medical
and educational needs. If Mother was not relocating, this Court would order
that the parties share custody.
Because Mother has filed a relocation petition, this Court has evaluated
the evidence in light of 23 PA.C.S.A. 5337(h), which provides as follows:
(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:
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( 1 l 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.
The Court finds that both parties have strong and loving
relationships with the children. As stated above, however, Mother has
been primarily responsible for taking care of Bf r-.!.~special needs. Mother
is the party responsible for getting the child evaluated and diagnosed.
Mother is the party who pursued therapy and obtained appropriate
services for the child. It is Mother who obtained medical assistanceand
attended most of the evaluations and therapy sessions. Mother played
this role both during the marriage and after separation.
While parents often share caretaking responsibilitiesand operate as
a team, this Court believes that Father's participation has always been
more passive. This Court is not finding that Father has played no role in this
area; he has attended and participated in some evaluations and therapy
sessions. Nevertheless, Mother is the parent who actively pursues and
investigates services. Father participates after Mother has done the
groundwork. Mother is clearly more knowledgeable and versed in the
child's condition and treatment.
(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.
B.~J. is currently in first grade, while 5.c..w. is in kindergarten. Every witness
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testified thafBf.iJ.mas made tremendous progress in the last 6 months. He is
doing extremely well in school, his communication skills have vastly improved,
and he has a strong bond with his TSS. In large part, this improvement has
occurred because of Mother's advocacy and persistence in obtaining
necessary services. Mother has made career and financial sacrifices to attend
to,s.r. r-i,'s needs.
Mother testified that the County to which she proposes to relocate offers
better services forBJJ .., both in the community and in school. Mother's expert
witnesses from West Virginia were related to her and did not have sufficient
expertise to testify as to the proposed school the child would attend. This Court
finds that 13.v'.~.'s needs are being met in Plum School District. The Court also
believes that his needs will be met in the proposed school. However, the Court
does not believe it prudent to change the child's school and servicesmid-year.
The child is flourishing in school and is attached to his TSS, who has provided
therapy to him for 3 years. Therefore, Mother shall not be permitted to relocate
with the children until the conclusion of this school year.
(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.
This Court finds that suitable custody arrangements can be made to
preserve Father's relationship with the children. The parties will only be a l 1h
hour drive apart. Although Father will not be able to see the children with the
same frequency as he currently does, he will have regular and frequent contact
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with them.
(4) The child's preference, taking into consideration the age and
maturity of the child.
The Court did not interview the children.
( 5l Whether there is an established pattern of conduct of either
party to promote or thwart the relationship of the child and the
other party.
Father testified that since the litigation started, Mother has refused
to give him extra custody time. As set forth above at Custody Factor #1,
this Court finds merit to his claim. Overall, however, the Court does not
believe that Mother's conduct in this regard rises to the level of a pattern.
This Court does caution Mother, however, to ensure that this pattern
does not develop. Both parties shall actively encourage and promote the
children's relationship with the other parent. Mother's husband may be a
wonderful support systemfor her, but he is not the children's father. It is
readily apparent to the Court that I 5. S . : desires to have no
contact with Father. Mother admitted this fact, and she appears to
accept the situation. More troubling is that Mother appears to be
following the same path. She has decreased her communication with
Father and testified that their relationship is businesslike.
Mother should be putting extra effort into her own relationship with
Father. Mother must promote and facilitate the relationship between her
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husband and Father. This Court believes that the conclusion of the
subject litigation and co-parent counseling will achieve these goals.
(6) Whether the relocatjon 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.
The Court believes the relocation will improve the quality of the
Mother's life. Mother will be making more money and working less hours.
She will have greater resources and more time to spend with the children.
Mother is remarried and desires to live with her husband, who also has a
loving relationship with the children. Finally, Mother will have a greater
support system, as she has many family members in the relocation area.
(7) Whether the relocation will enhance the general quality of life
for the child. including, but not limited to, financial, or emotional
benefit or educational opportunity.
The relocation will offer some financial benefit to the children as a
result of her Mother's increased income. It will also offer emotional benefit
to the children as Mother will have more time to devote to them. The
children will also benefit from the increased contact and support of
Mother's husband and large extended family in the area.
The Court finds that the educational opportunities will be
comparable to those currently available. There do appear, however, to
be more social, sporting, and community resources available for the
children in the area of the relocation. Likewise, if the children obtain all of
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their therapy in school, they should have more time to devote to these
other resources.
(8) The reasons and motivation of each party for seeking or
opposing the relocation.
The Court does not believe that Father's motives in opposing Mother's
relocation are improper. Rather, this Court believes that Father is motivated by
love for his children, his desire to maintain stability in their lives, and his desire to
have as much contact with them as possible.
Similarly,the Court does not believe that Mother's motives are improper.
Mother desires to have the support and assistanceof her family and husband.
Mother's request for relocation is necessaryto fulfill her desire to live with her
husband and give their marriage the best chance to work. Mother also has a
better job and the move will offer the children greater social and community
opportunities.
(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.
This factor is inapplicable.
( l 0) Any other factor affecting the best interest of the child.
Not applicable.
In sum, this Court's consideration of the statutory factors mandates the
conclusion that Mother's Petition for Relocation be granted. The children will
receive numerous benefits from the relocation and tfl j in particular, would
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suffer from the loss of his Mother as his primary medical and educational
caretaker if the relocation is denied. Because the proposed move is only a 1 1/2
hour drive away, Father will have frequent and continuing contact with the
children, and can maintain his relationship with them.
BY THE COURT:
l- 0_,, (\
Susan EvashavikDilucente
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