O'Donnell, M. v. Curtis, D. ( 2021 )

J-A05027-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MEGAN CURTIS, N/K/A MEGAN : IN THE SUPERIOR COURT OF
O’DONNELL : PENNSYLVANIA
:
Appellant :
:
:
v. :
:
DANIEL LEE CURTIS : No. 1991 EDA 2020
Appeal from the Order Entered September 21, 2020
In the Court of Common Pleas of Northampton County Civil Division at
No(s): No. C-48-CV-2011-3363
BEFORE: OLSON, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY NICHOLS, J.: FILED JULY 6, 2021
Megan Curtis, n/k/a Megan O’Donnell (Mother), appeals from the order,
that awarded Daniel Lee Curtis (Father) sole legal and physical custody of the
parties’ son, M.C. (Child), born in February of 2009, and granted Father
permission to relocate with Child from Northampton County, Pennsylvania, to
Tennessee.1 The order included provisions for mental health counseling for
Child, and his remote reunification with Mother. We affirm.
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* Former Justice specially assigned to the Superior Court.
1 We use the parties’ names in the caption “as they stood upon the record of
the trial court at the time the appeal was taken” pursuant to Pa.R.A.P. 904(b).
We note that recent changes to our Rules of Appellate Procedure provide that
“[i]n an appeal of a custody action where the trial court has used the full name
of the parties in the caption, upon application of a party and for cause shown,
an appellate court may exercise its discretion to use the initials of the parties
in the caption based upon the sensitive nature of the facts included in the case
record and the best interest of the child.” Pa.R.A.P. 904(b)(2); see also
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The record in this matter reflects that the parties were previously
married and presently are divorced. On April 12, 2011, Mother filed a
complaint for custody of Child. On June 14, 2011, the trial court entered a
June 10, 2011 stipulated agreement of the parties as having the same force
and effect as a custody order of the court. Thereafter, on September 5, 2012,
the trial court entered a stipulation of the parties, dated September 5, 2012,
as the custody order of the court. Subsequently, on September 24, 2012, the
trial court entered the parties’ divorce decree. A number of petitions followed,
including a petition for modification of custody that Father filed on March 14,
2013. On April 8, 2014, the trial court entered a stipulated custody order. On
September 25, 2014, Father filed a petition for contempt and for modification
of the custody order, to which Mother filed an answer and counterclaim. In
an order dated July 21, 2015, and entered on July 22, 2015, the trial court
modified the prior custody order. Under the July 22, 2015 order, Mother had
primary physical custody of Child subject to Father’s partial physical custody
on alternating weekends.
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Pa.R.A.P. 907 (stating that “[w]hen an appeal is filed in a custody action, upon
application of a party and for cause shown the appellate court may make a
determination that using the parties’ initials in the caption is appropriate after
considering the sensitive nature of the facts included in the case record and
the child's best interest”). These changes to our Rules were approved on
October 22, 2020, and became effective January 1, 2021, after the current
appeal was filed. Moreover, no party has applied to this Court for the use of
initials in the caption. We will, however, refer to the minor involved in this
custody dispute as “Child” throughout our decision so as to protect his identity.
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Relevant to the instant appeal, on April 12, 2019, Father, acting pro se,
filed a petition for contempt against Mother. On May 16, 2019, Father’s
counsel, Joanne Kelhart, Esq., filed a praecipe for her appearance on behalf
of Father, and, on May 17, 2019, Father filed a petition for modification of
custody order on behalf of Father.
Following continued litigation, during which the trial court ordered
Father to have sole physical and legal custody and prohibited contact between
Mother and Child pending a psychological evaluation of Mother. Father
provided Mother with notice of his proposed relocation with Child to
Tennessee,2 and on June 15, 2020, Mother filed a counter-affidavit opposing
Father’s relocation. On June 29, 2020, Mother also filed a petition for special
relief, seeking restored contact with the Child. The trial court scheduled a
hearing on Mother’s petition for special relief for July 31, 2020.
On July 31, 2020, Mother left the courthouse before the hearing.
Mother’s counsel, Mark B. Stanziola, Esq., was present at the hearing, and the
trial court heard testimony from a sheriff about Mother’s departure from the
courthouse. On August 3, 2020, the trial court entered an order denying
Mother’s petition for special relief due to her failure to appear, and scheduled
a September 8, 2020 trial date for resolution of Father’s April 12, 2019 petition
for contempt, May 17, 2019 petition for modification, and his proposed
relocation.
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2 The record does not contain a copy of Father’s notice of proposed relocation
or any other filings pursuant to Pa.R.C.P. 1915.17(f).
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On August 13, 2020, the trial court convened a hearing on a motion for
pro se representation filed by Attorney Stanziola. After the hearing, the trial
court entered an order directing Attorney Stanziola to continue to represent
Mother until the court granted him leave to withdraw.
On September 8, 2020, the trial court held the hearing on the several
pending petitions and request for relocation. Father was present with his
counsel. He presented the testimony of Child and testified on his own behalf.
Father’s counsel called Mother as a hostile witness on cross-examination.
Father also presented the testimony of his current wife, B.C. (Stepmother).
Mother was present with her counsel and testified on her own behalf.
Thereafter, on September 21, 2020, the trial court entered the order
awarding Father sole legal and physical custody of Child and granting Father
permission to relocate to Tennessee with Child. The order included provisions
for Father to obtain a new therapist for Child, after which Mother and Child
could communicate by video chat under the supervision of the therapist. The
trial court also required that the therapist provide written reports regarding
the progress of the contact between Mother and Child within six months.
On October 16, 2020, Mother timely filed a notice of appeal. On October
26, 2020, Mother filed a concise statement of errors complained of on appeal.
See Pa.R.A.P. 1925(a)(2)(i) and (b).3
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3 We note the late filing of Mother’s concise statement of errors complained of
on appeal, but decline to find waiver as it does not run contrary to an order of
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On appeal, Mother raises one issue, as follows:
1. Did the Trial Court commit an error of law and abuse its
discretion by concluding that [F]ather be allowed to relocate
out-of-state[,] thereby prejudicing [M]other’s ability to unify
with [C]hild, contrary to the testimony and evidence at [the]
time of trial.
Mother’s Brief at 8.
Mother focuses her argument on the order granting relocation. Mother
acknowledges that the trial court order “does direct remote therapeutic
involvement between Child and Mother.” Id. at 18. However, she maintains
that the order fails to provide any actual reunification mechanism and any
realistic possibility of preserving and fostering of the relationship between
Mother and Child. Id.
Mother further asserts that the trial court’s grant of Father’s request for
relocation, which was contrary to the statutory directives for the court to
preserve and foster the relationship between the non-custodial parent and the
child, resulted in undue prejudice to her. Id. at 18-19. In support, Mother
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this Court or the trial court, and no party had raised any allegation of
prejudice. See In re K.T.E.L., 983 A.2d 745, 747-48 (Pa. Super. 2009)
(finding that the appellant’s failure to simultaneously file a Rule 1925(b)
concise statement did not result in waiver of all issues for appeal where the
appellant later filed the statement, and there was no allegation of prejudice
from the late filing). Cf. J.M.R. v. J.M., 1 A.3d 902, 907 (Pa. Super. 2010)
(holding, prospectively, that an appellant waives issues for appeal by failing
to comply with this Court’s order directing him to file a Rule 1925(b)
Statement within 21 days); J.P. v. S.P., 991 A.2d 904, 908 (Pa. Super. 2010)
(holding that the appellant waived issues for appeal by failing to comply with
the trial court’s order directing her to file a Rule 1925(b) Statement within
twenty-one days).
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relies on Gruber v. Gruber, 583 A.2d 434, 439 (Pa. Super. 1990). According
to Mother, the trial court failed to consider that Father’s proposed move was
motivated by a desire to frustrate her rights as the non-custodial parent and
impede the development of a healthy, loving relationship between her and
Child.4 Mother summarizes her claims as follows:
During the course of the testimony before the [trial court on
September 8, 2020], Father and [Stepmother] revealed that the
motivation behind the relocation request from Pennsylvania to
Tennessee was to distance themselves and . . . Child from . . .
Mother. The [trial court] failed to attribute any weight to this,
contrary to the statutory factors, and granted Father’s request.
By granting Father’s relocation request, the [trial court] has
thwarted any realistic reunification of Mother and [C]hild and has
failed to foster and preserve any future potential development of
[a] relationship between Mother and Child.
Id. at 11. Therefore, Mother requests this Court to reverse and remand the
matter to the trial court as it pertains to Father’s relocation and for the trial
court “to develop and facilitate the reunification process between [C]hild and
Mother.” Id. at 20.
Father responds that the trial court’s conclusion that relocation was in
the best interests of Child was supported by a full consideration of Mother’s
behaviors that were detrimental to Child, Child’s contacts with extended family
in Tennessee, and the reason for the relocation. Father concludes that the
trial court provided a “reasoned and detailed [o]pinon” supporting its findings
____________________________________________
4 We note that this Court decided Gruber before the enactment of statutory
best interests factors in the Child Custody Act, (the Act), 23 Pa.C.S. §§ 5321-
5340.
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that the evidence warranted relocation while providing for measures for
Mother to “rebuild the damaged relationship with [Child.]” Father’s Brief at 4.
In custody cases under the Act, 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. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).
We have stated:
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) (quoting Jackson
v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)).
In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), we stated
the following regarding an abuse of discretion standard:
Although we are given a broad power of review, we are
constrained by an abuse of discretion standard when evaluating
the court’s order. 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
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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.
M.A.T., 989 A.2d at 18-19 (citations omitted).
With any custody case decided under the Act, the paramount concern is
the best interests of the child. See 23 Pa.C.S. §§ 5328, 5338. Section 5323
of the Act provides for the following types of awards:
(a) Types of award.—After considering the factors set forth in
section 5328 (relating to factors to consider when awarding
custody), the court may award any of the following types of
custody if it in the best interest of the child:
(1) Shared physical custody.
(2) Primary physical custody.
(3) Partial physical custody.
(4) Sole physical custody.
(5) Supervised physical custody.
(6) Shared legal custody.
(7) Sole legal custody.
23 Pa.C.S. § 5323.
Section 5328(a) of the Act provides as follows.
§ 5328. Factors to consider when awarding custody
(a) Factors.—In ordering any form of custody, the court shall
determine the best interest of the child by considering all relevant
factors, giving weighted consideration to those factors which
affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit frequent
and continuing contact between the child and another party.
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(2) The present and past abuse committed by a party or
member of the party’s household, whether there is a continued
risk of harm to the child or an abused party and which party
can better provide adequate physical safeguards and
supervision of the child.
(2.1) The information set forth in section 5329.1(a)(1) and (2)
(relating to consideration of child abuse and involvement with
protective services).
(3) The parental duties performed by each party on behalf of
the child.
(4) The need for stability and continuity in the child’s
education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on the
child’s maturity and judgment.
(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
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another party is not evidence of unwillingness or inability to
cooperate with that party.
(14) The history of drug or alcohol abuse of a party or member
of a party’s household.
(15) The mental and physical condition of a party or member
of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S. § 5328.
Section 5337 of the Act sets forth the procedures and standards for
relocation requests. The Act requires the trial court to consider the following
in a relocation proceeding:
(h) Relocation factors.—In determining whether to grant a
proposed relocation, the court shall consider the following factors,
giving weighted consideration to those factors which affect the
safety of the child:
(1) The nature, quality, extent of involvement and duration of
the child’s relationship with the party proposing to relocate and
with the nonrelocating party, siblings and other significant
persons in the child’s life.
(2) The age, developmental stage, needs of the child and the
likely impact the relocation will have on the child’s physical,
educational and emotional development, taking into
consideration any special needs of the child.
(3) The feasibility of preserving the relationship between the
nonrelocating party and the child through suitable custody
arrangements, considering the logistics and financial
circumstances of the parties.
(4) The child’s preference, taking into consideration the age
and maturity of the child.
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(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. § 5337(h).
Moreover, the party proposing relocation has the burden to prove that
relocation will serve the child’s best interest. 23 Pa.C.S. § 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. § 5337(i)(2).
Further, we have explained as follows:
When deciding a petition to modify custody, a court must conduct
a thorough analysis of the best interests of the child based on the
relevant Section 5328(a) factors. E.D. v. M.P., 33 A.3d 73, 80
(Pa. Super. 2011). “All of the factors listed in section 5328(a) 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). Section 5337(h) requires courts to
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consider all relocation factors. E.D., supra at 81. The record must
be clear on appeal that the trial court considered all the factors.
Id.Section 5323(d) provides that a trial court “shall delineate the
reasons for its decision on the record in open court or in a written
opinion or order.” 23 Pa.C.S.A. § 5323(d). Additionally, “section
5323(d) requires the trial court to set forth its mandatory
assessment of the sixteen [Section 5328 custody] factors prior to
the deadline by which a litigant must file a notice of appeal.” C.B.
v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013), appeal denied,
[620 Pa. 727], 70 A.3d 808 (2013). Section 5323(d) applies to
cases involving custody and relocation. A.M.S. v. M.R.C., 70 A.3d
830, 835 (Pa. Super. 2013).
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 factors,
complies with Section 5323(d). Id.A.V. v. S.T., 87 A.3d 818, 822-23 (Pa. Super. 2014).
“When a trial court orders a form of custody, the best interest of the
child is paramount.” S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014)
(citation omitted). In a custody action, it is within the trial court’s discretion
based on the record before it to determine the relevant weight to give each of
the factors in a particular case. M.J.M., 63 A.3d at 339.
Here, the trial court addressed Mother’s issue as follows:
The parties were married in 2004 and separated in 2010. The
current custody order, which was entered on September 27, 2019,
provides that Father has sole legal and physical custody of [C]hild
and that Mother is to have no contact with [C]hild. Prior thereto,
Father was ordered to have partial physical custody every other
weekend. Father is seeking an order granting him continued sole
legal and physical custody of [C]hild, with permission to move to
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. . . Tennessee with [C]hild. Mother opposes relocation, and seeks
to have restored contact with [C]hild. Following our consideration
of the testimony presented at the September 8, 2020 trial of this
matter, we have concluded that the best interests of [C]hild would
be served by continuing Father’s sole legal and physical custody
of [C]hild and permitting Father to relocate to Tennessee with
[C]hild with provisions for remote reunification counseling
between[C]hild and Mother, for the reasons discussed below.
At trial we found the testimony of [C]hild, the testimony of Father,
and the testimony of [Stepmother] to be entirely credible, and the
testimony of Mother not to be credible. We note that [C]hild, who
is 11 years of age, is a mature and thoughtful young man who
exhibited good judgment and insight for his age, and did not
appear to be coached in his testimony. We also found the
psychological report pertaining to Mother, authored by Ronald
Esteve, Ph.D., to be informative and persuasive. Dr. Esteve’s
report was admitted into evidence by a stipulation of the parties.
We have made our decision herein after a thorough consideration
of the relevant factors set forth by [Section 5328 and 5337.]
* * *
[C]hild presently resides with Father in Nazareth, Pennsylvania.
[C]hild has been in Father’s sole physical custody since May 2019,
when Father picked up [C]hild from Mother’s home at the behest
of Mother’s [current] husband, after Mother had left the home for
several days and was out of contact with her [current] husband,
[M.O.] Prior thereto, Mother had primary physical custody of
[C]hild since the parties’ separation, with Father having periods of
partial custody every other weekend. [C]hild is currently 11 years
old.
[C]hild resided primarily with Mother throughout his life until May
2019. Since the parties’ divorce, Mother has remarried to her
current husband, with whom she has two children, [L.O.] and
[Q.O.]. Those children are 4 and 5 years of age. Mother is a
stay[-]at[-]home parent. Her husband is a family physician. She
resides in Skippack, Montgomery County, Pennsylvania. Mother’s
relationship with [her current husband] has been marred over the
years by significant arguments, and she has accused him on at
least one occasion of physically abusing her. On that occasion in
2013, Mother reported that [her current husband] hit her, choked
her, covered her face with a pillow, and caused her to have black
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eyes. He was arrested and pled guilty to a misdemeanor offence
[sic], the precise nature of which was not disclosed to this [c]ourt.
Mother and her [current] husband have not been to counseling
and Mother has left the home for a few days at a time on several
occasions over the years as a result of their discord, including
while [C]hild was at the home. Mother has accused her husband
of cutting her off financially as well. Despite this history, Mother
reported to Dr. Esteve that there is no violence in her home. At
trial she contended that there has been no violence in the home
since 2013, but admitted that [C]hild was present in the home
during that incident.
In contradiction to Mother’s claim, [C]hild testified that while he
was living in Mother’s home, he would regularly go over to the
neighbor’s house to spend time after school and on weekends to
avoid the marital discord in Mother’s home. Based upon these
experiences, [C]hild is fearful of returning to Mother’s home as he
believes this discord would be ongoing. [C]hild reported in his
testimony that he did not feel safe in Mother’s home as a result of
the marital discord, and Mother’s behavior. [Mother’s current
husband] was granted a temporary [Protection From Abuse (PFA)
order] against Mother in 2019, but did not pursue a final PFA
order. Currently there is a PFA in place against Mother with
respect to [Mother’s current husband’s] two children from his prior
marriage. That PFA was obtained by the mother of [Mother’s
current husband’s] older children on their behalf, after Mother
recorded and sent to numerous individuals various cell phone
videos of herself making abusive remarks about [current
husband’s] older daughter. One such video was played for the
[c]ourt at trial. While Mother acknowledged that the voice on the
video sounded like hers and that the video depicted her two
youngest children as well as [current] husband in the background,
she incredibly and inexplicably denied recording the video and
sending it to others, and in fact denied that the events in the video
took place at all. The PFA against Mother with respect to her
stepchildren was entered on June 8, 2020 for a period of three
years. While Mother has not been excluded from her home,
[current husband] is not permitted to spend time with his older
children in Mother’s presence, including in the home that he
shares with Mother. No information was reported to the [c]ourt
regarding the relationship between [C]hild . . . and [current
husband’s] older children, who are reportedly 12 years of age.
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In Father’s home[, C]hild lives with Father and [Stepmother], and
two younger siblings, [J., a male,] and [A., a female]. [J.] is 11
years old and is the child of Stepmother’s previous marriage.
Stepmother has sole legal and physical custody of [J.,] and [J.’s]
biological father is not present in [J.’s] life by choice, having left
the relationship shortly after [J.’s] birth. Stepmother maintains
contact with [J.’s] paternal extended family. [J.] has special
needs, as he has Down syndrome. [A.] is three years old, and is
the adopted child of Father and Stepmother. [A.] was adopted as
an infant. [C]hild has a strong, positive and loving relationship
with these siblings.
Stepmother testified that when [C]hild first moved into their home
in 2019, he was highly anxious and would behave unlike a typical
child, behaving as though trying to “parent” [J.] and [A.] at times.
[C]hild reported to Stepmother that he used to “parent” his
younger siblings in Mother’s home. In response, Father and
[S]tepmother explained to [C]hild that his job was to just be a kid
and that he could leave the parenting to them. Since living in
Father’s home, [C]hild’s anxiety and worry have decreased
significantly and he is behaving like a typical child and he is happy.
Father’s home is stable and there is no violence or marital discord.
[C]hild is currently treating with a therapist. The [c]ourt notes
that there was a marked change in [C]hild’s demeanor from
September [ ] 2019, when the [c]ourt met with him in camera,
until the September 8, 2020 trial. Whereas he previously
appeared anxious, withdrawn and fearful, his present
countenance was outgoing, confident, and relaxed.
Father is a stay[-]at[-]home parent, raising his children and
taking care of the family home, and he also coaches youth
baseball. Stepmother works from home as a project manager for
Covance Research Organization, an entity engaged in oncology
research studies. Her remote work status has been in place for
the last five years, and is unrelated to the current COVID
pandemic. Stepmother travels occasionally for work.
Father and Stepmother wish to relocate to Tennessee to be nearer
to both of their extended families, including their parents and
siblings. Both are originally from that area. If permitted to move
to Tennessee, they will reside in Apison, which is in the
Chattanooga metropolitan area. Father and Stepmother have
looked at several houses in the area and are ready to purchase a
home. While they have not yet listed their Pennsylvania home for
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sale, they are confident that it will sell quickly. In Tennessee[,
C]hild would live within approximately 10 miles of all of Father’s
and Stepmother’s extended family members. [C]hild has several
cousins of similar age living there as well as aunts, uncles, and
grandparents, with whom he has positive relationships.
Stepmother’s work with Covance would continue in Tennessee
with no change from her work in Pennsylvania given its remote
nature. She would travel on occasion to Maryland and
Pennsylvania. Father would continue to be a stay[-]at[-]home
parent and believes that he would also have youth baseball
coaching opportunities in Tennessee.
Father has determined that [C]hild would attend East Hamilton
Middle School in Tennessee and that the school is of a very good
quality, both for [C]hild[’s] and for [J.’s] needs. Father is
confident that [C]hild would easily transition to the school there,
as [C]hild is outgoing and makes friends easily. School is
currently in session in[-]person. While [C]hild previously attended
school in Skippack when living with Mother, he easily transitioned
to school in Nazareth last fall after Father obtained sole physical
custody. At present, [C]hild attends 6th grade at Nazareth Area
Intermediate School which [is] being held in a hybrid program of
virtual and in-person instruction, and[,] while [C]hild has had
some virtual contact with his friends here during the pandemic,
this contact has been limited and his friends are not in his present
school cohort so he sees them infrequently.
[C]hild is excited about the prospect of moving to Tennessee. He
greatly enjoys spending time with his extended family who live
there, and the active lifestyle available there, and believes he
would enjoy the school there, including the available
extracurricular activities. The [c]ourt did not find that [C]hild’s
testimony had been coached by any of the adults in his life. Father
and [S]tepmother believe that a move to Tennessee would be of
further aid in lowering [C]hild’s anxiety, putting greater physical
distance between him and Mother where Mother has repeatedly
failed to abide by [c]ourt orders that direct no contact between
her and [C]hild. Father intends to establish a relationship with a
therapist for [C]hild in Tennessee to continue his counseling.
From the age of four or five until Father obtained sole legal and
physical custody one year ago, [C]hild did not have contact with
his maternal grandparents, at Mother’s insistence, due to her
perception that they did not side with her in custody matters
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between herself and Father. Maternal [G]randparents live nearby
in Pennsylvania. Since Father has had sole legal and physical
custody of the Child, he has fostered a relationship between
[C]hild and [M]aternal [G]randparents, and intends to continue
that relationship via phone calls from Tennessee, as well as
occasional visits in Pennsylvania or Tennessee[,] and would
permit [C]hild to vacation with [M]aternal [G]randparents.
Likewise, Father has attempted over the last year to initiate phone
contact between [C]hild and his half[-]siblings [L.O.] and [Q.O.],
but was not permitted to do so. This conduct on the part of Father
demonstrates his willingness to foster important relationships in
[C]hild’s life with his maternal family members.
Father testified that he believed the best course of action to
support [C]hild’s relationship with Mother at this time would be to
attempt reunification between Mother and Child via teleconference
with a therapist, with the possibility of future visits if Mother gets
treatment for her mental health conditions and such contact is
recommended by a therapist. However, Father and Stepmother
both credibly testified that they would heed any direction from the
court regarding contact between Mother and Child. Prior to the
entry of the current Order providing for no contact between
Mother and Child, Father did arrange for [C]hild to have contact
with Mother over the phone but those calls typically ended poorly
because of Mother’s behavior. As did Father and Stepmother,
[C]hild indicated that[,] despite his misgivings[,] he would abide
by any [c]ourt order directing contact between Mother and
himself. [C]hild also indicated that he would like to have FaceTime
contact with [L.O.] and [Q.O.], without interference by Mother in
the conversations.
While [C]hild does wish to have a relationship with Mother, this
desire is heavily tempered by his fears surrounding Mother’s
behavior. He indicated that on all recent occasions, Mother’s
behavior in his presence—whether in person on the phone, or via
FaceTime—has been troublesome. He indicated that Mother
attempts to make him feel guilty by having emotional outbursts
and asking him when he is going to come “home” to see her and
his half[-]siblings. On September 13, 2019, following a
conference, this [c]ourt initially entered an Order providing for
joint legal custody for both parents, with sole physical custody for
Father and a provision for reunification counseling for Mother and
[C]hild with therapist Terence Brennan. That Order also provided
that Mother was permitted to attend [C]hild’s soccer games.
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Mother failed to appear at the first scheduled session with Mr.
Brennan, having gone to California to seek mental health
treatment. She did not notify Father, causing Father to bring
[C]hild to Mr. Brennan’s office unnecessarily, where [C]hild waited
anxiously for Mother to appear, wondering if she would arrive and
how she would behave if she did arrive. Later that autumn,
Mother began shouting at [C]hild after his soccer game when he
walked over to see her, which made him sad and afraid. Mother’s
contact with [C]hild was thereafter removed via the current Order,
pending a psychological evaluation, which Mother did not appear
for until March 2020. Despite our custody [O]rder directing no
contact, as well as a PFA that was in place for six months, Mother
continued to appear in places where [C]hild was present including
at Father’s home, [C]hild’s sports, and [C]hild’s school. Police
were called to remove Mother from the school property. We also
believe [C]hild’s concerns to be reasonable given our observations
of Mother’s overwrought behavior in the presence of the [c]ourt
on every occasion on which Mother has appeared.
Mother is presently diagnosed with [Attention Deficit Hyperactivity
Disorder (ADHD)] and bipolar disorder. While she stated that she
has had ADHD since the age of seven, she incredibly contends that
she has only had other mental health struggles since 2019. Since
April 2019, Mother has been in inpatient mental health treatment
at least six times—at an unnamed facility in Maryland in April
2019, at the Brook Glen Behavioral Health clinic in November
2019, at the Horsham clinic in December 2019 and again in
January 2020, at the Malvern clinic in December 2019, and at
Montgomery County Hospital in August 2020. She also received
outpatient treatment at a facility in California in September 2019.
Mother currently treats with both a therapist and psychiatrist. She
has weekly therapy sessions. She is currently taking four
medications for her mental health—Gabapentin, Trileptal,
Clonidine, and Vyvanse. This medication was recently adjusted to
address Mother’s panic attacks, which she reports were being
caused by Seroquel that she had been prescribed. Mother reports
that she has noticed improvement since her medications were
adjusted and claims that her mental health is completely under
control now. Despite her past conduct, she believes that she could
conduct herself appropriately with [C]hild on the phone. Because
of Mother’s behaviors, and—as noted by Dr. Esteve in his report—
her paranoid state of mind in which she perceives that everyone
is against her, Mother and Father are not able to productively
communicate with one another regarding [C]hild’s needs.
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Mother clearly lacks sufficient insight into her mental health
condition and, further, into how her behavior has affected her
relationship with [C]hild. Moreover, she seems unable to
acknowledge having engaged in inappropriate behavior towards
[current husband’s] children in spite of clear evidence that she did
so, including video, which causes the court further concern about
her ability to acknowledge her behaviors and conduct herself
appropriately.
Taking all of this information into consideration, in light of the
statutory factors enumerated above, we find that the best
interests of the child would be served by granting Father’s
request to relocate to Tennessee, with provisions for Mother to
attempt to reunify with the Child via remote communication. As
in any custody matter, the best interests of [C]hild are the
paramount concern of this [c]ourt in determining this matter.
Tripathi v. Tripathi, 787 A.2d 436 (Pa. Super. 2001). While the
proposed move to Tennessee will certainly affect Mother’s ability
to have any periods of physical custody in the future, we do not
believe that there is a reasonable probability that we would grant
Mother any periods of physical custody with [C]hild in the near
future, as her conduct and its effect on [C]hild demonstrates that
same would not be in [C]hild’s best interest. In essence, Mother
will have no less contact with [C]hild if he is in Tennessee than
she would have if he were to reside in Pennsylvania. In contrast,
we believe that the proposed move has significant advantages for
[C]hild and Father and his family, as they will be closer to
extended family in Tennessee, and [C]hild will be surrounded by
a large extended family free of conflict, abuse, and anxiety[-
]inducing behaviors in that [C]hild would benefit from a new living
environment in many respects, and that he would have a safe,
stable living environment with a parent who is able to provide well
for all of his physical, emotional, and educational needs.
Moreover, placing [C]hild in Father’s sole custody will provide
[C]hild with greater stability and continuity and will ensure that
his relationship with both of his parents and with his extended
family is fostered to the greatest possible extent, as Father has
demonstrated that he will relationships and provide stability for
[C]hild.
We wish to make clear that our determination of custody in this
matter is not a penalty against Mother for her mental health
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condition, but is solely designed to protect the best interests of
[C]hild, which are paramount.
Trial Ct. Op., 9/21/20, at 1-13.
With regard to Mother’s contention concerning the trial court’s
consideration of Father’s and Stepmother’s motives for relocating, our review
confirms that the trial court did consider each party’s reason for seeking or
opposing the relocation. When viewed in light of the trial court’s findings
regarding the effect of Mother’s behaviors on Child, as well as the other
reasons for relocation set forth by Father, Mother’s argument that Father’s
sole or primary motivation was to impair her rights and frustrate her ability to
reunify with Child lacks merit. This Court will not disturb the weight that the
trial court placed on particular testimonial evidence where there is support by
competent evidence in the record. See C.R.F., 45 A.3d at 443; see also
M.J.M., 63 A.3d at 339. Accordingly, Mother’s challenge to the order granting
Father’s proposed relocation fails.
Further, although Mother refers to the trial court’s failure to provide for
any realistic preservation and fostering of the relationship between Mother
and Child, Mother provides no further argument that the trial court erred in
its consideration of the statutory best interests factors beyond her challenge
to Father’s motives for relocating with Child. Indeed, Mother offers no other
proposals or mechanisms to better foster her reunification with Child. Under
these circumstances, we conclude Mother has not demonstrated any
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reversible error or abuse of discretion in the trial court’s determinations.5 See
C.R.F., 45 A.3d at 443; Ketterer, 902 A.2d at 540.
In sum, the trial court here found that the grant of the relocation to
Tennessee was in Child’s best interests. The court found that Father’s
motivation for the move was reasonable. The court further found that Child
wanted to move and was excited about the move. The court reasoned that
Child had no contact with Mother under the existing custody order, and that
presently contact between Child and Mother caused him anxiety. The trial
court’s decision to permit Father to relocate with Child to Tennessee is
supported by competent evidence in the record, and we must affirm. See
C.R.F., 45 A.3d at 443; Ketterer, 902 A.2d at 540. If, in the future, the
situation with the remote reunification between Child and Mother is
progressing, Mother will be able to seek a modification of the trial court’s
custody order at that time.
Order affirmed.
____________________________________________
5 We acknowledge that the trial court did not expressly provide a separate list
of the factors it considered under Section 5328(a) and 5337(h). However,
given Mother’s failure to assert that the trial court erred in this regard or that
it abused its discretion as to any specific factor other than Section 5337(h)(8),
we decline to raise this issue sua sponte and remand for a supplemental
opinion.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/6/2021
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