J.G. v. J.G.

J-A06027-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.G., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
J.G.,
Appellee No. 2743 EDA 2016
Appeal from the Order July 27, 2016
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2012-18650
BEFORE: PANELLA, SHOGAN, and RANSOM, JJ.
MEMORANDUM BY SHOGAN, J.: FILED MAY 22, 2017
This is an appeal in a custody case by J.G. (“Mother”). She and J.G.
(“Father”) had four children.1 Mother appealed the order denying her
request to relocate with the parties’ youngest child, nine-year-old A.G., to
Boca Raton, Florida. The July 27, 2016 order also denied 1) Mother’s
petition to modify the existing custody order, and 2) her separate petition
for special relief requesting that A.G. be immediately withdrawn from his
present Hebrew school and enrolled in a different one mutually agreed upon
____________________________________________
1
Of the parties’ three oldest children, two daughters were ages thirty-one
and twenty-four years old in 2015; the second-oldest child, who would have
been twenty-nine years old, was tragically killed by a drunk driver when she
was nineteen years old in 2005. N.T., 2/17/16, at 24; Custody Evaluation
by Anthony M. Pisa, Ph.D., 12/29/15, Mother’s Exhibit 1 (“Pisa Report”), at
3, 13–14.
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by the parties. Finally, the order denied Father’s petition to modify the
existing custody order in which he requested equally shared physical
custody; however, the trial court granted Father’s alternative request to
increase his partial physical-custody time. Upon careful review, we affirm.
The record reveals that Mother and Father separated in 2012 after
thirty-three years of marriage. N.T., 2/18/16, at 5. Mother testified that
after the parties’ daughter died in July of 2005, the parties planned to have
“another child to make us feel whole again.” Id. at 7, 11. A.G. was born
seventeen months later in October of 2007. Id. at 5, 10. The parties
separated in April of 2012, and a divorce decree was issued in December of
2014. Id. at 5–6.
The parties stipulated to the existing custody order dated January 13,
2014. It granted them shared legal custody, Mother primary physical
custody, and Father partial physical custody every Wednesday overnight
during the school year. In addition, the order granted Father physical
custody on alternating weekends from “Friday after school through Sunday
at 8:00 p.m. and on the next alternating weekend . . . from Friday after
school through Monday morning return to school, or if there is no school, to
Mother’s home by 9:00 a.m.” Order, 1/13/2014, at ¶ 2(b).
Father resides in the former marital home in Wynnewood,
Pennsylvania, with his girlfriend, Stefanie Cutler. Pisa Report at 3. Mother
resides in an apartment in Bala Cynwyd, Pennsylvania. Id. A.G. attends
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school in the Lower Merion School District, and he has an Individualized
Education Plan (“IEP”) due primarily to reading difficulties. N.T., 6/14/16, at
242–243. In addition, A.G. is diagnosed with Attention Deficit Disorder
(“ADD”) or Attention Deficit Hyperactivity Disorder (“ADHD”). Pisa Report at
9. Father testified that A.G. was recently prescribed Ritalin, which has made
him more calm and focused. N.T., 6/14/16, at 240–241.
On April 23, 2015, Mother filed a notice of proposed relocation with
A.G. to Boca Raton, Florida. Father responded on April 27, 2015, with a
counter-affidavit objecting to the relocation and to modification of the
existing custody order. On July 6, 2015, Mother filed a petition to modify
the existing custody order, wherein she requested modification of Father’s
partial physical custody schedule and permission to relocate with A.G. to
Florida. On July 16, 2015, Father filed a petition to modify the existing
custody order, wherein he requested joint physical custody.2 Finally, on
August 25, 2015, Mother filed a petition for special relief, asking that A.G. be
withdrawn from Hebrew school at Temple Beth Hillel and enrolled in a new
____________________________________________
2
“Joint physical custody” is not a term included in the Child Custody Act
(“Act”), 23 Pa.C.S. §§ 5321–5340, which governs this custody matter.
Rather, the Act includes the term “shared physical custody,” which is defined
as “the right of more than one individual to assume physical custody of the
child, each having significant periods of physical custodial time with the
child.” 23 Pa.C.S. § 5322. During these proceedings, Father requested
equally shared physical custody.
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Hebrew school mutually agreed upon by the parties. Petition for Special
Relief, 8/25/15, at 1–2.
The trial court held a protracted custody hearing over five days, on
February 17–19, and June 14–15, 2016. Mother testified on her own behalf,
and she presented the testimony of Anthony M. Pisa, Ph.D., a clinical
psychologist appointed to perform a custody evaluation upon agreement of
the parties; Robert Tanenbaum, a licensed psychologist; Maria Vetter, an
expert in special education consultations; and Laurie Dubow, Mother’s friend
who owns a real estate company in Florida, who testified via telephone.
Father testified on his own behalf, and he presented the testimony of J.S.G.,
the paternal grandmother; Sharon Grevet, Mother’s sister, via telephone;
and J.E.G. and F.L.G., the parties’ adult daughters, via telephone. On
rebuttal, Mother testified again on her behalf and presented the testimony of
her friend, Farell Borine.
By order dated July 26, 2016, and filed on July 27, 2016, the trial
court denied Mother’s request to relocate with A.G. and her petition to
modify the existing custody order. Further, the court denied Mother’s
petition for special relief, wherein she requested A.G.’s withdrawal from his
current Hebrew school and enrollment in a different one. The court denied
Father’s request for equally shared physical custody but granted him
additional physical custody overnight on the Thursday evenings preceding
Mother’s custodial weekends. The court directed that the “January 13, 2014
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stipulated custody order shall remain in full force and effect to the extent
that it does not conflict with this Order.” Order, 7/26/16, at 4.
Mother timely filed a notice of appeal and a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
The trial court filed its Rule 1925(a) opinion on October 18, 2016, wherein it
addressed each error asserted by Mother in her concise statement. On
appeal, Mother presents the following issues for our review:
1. Whether the [c]ourt erred by failure to individually address
the sixteen (16) custody factors and ten (10) relocation factors
when issuing its Order?
2. Whether the [t]rial [c]ourt erred in concluding that Appellee-
Father should be awarded additional physical custody?
3. Whether the [t]rial [c]ourt erred in fashioning a custody order
based upon an improper conclusion that Appellee-Father spent
“meaningful time together with the child on Wednesday?[”]
4. Whether the [t]rial [c]ourt erred in failing to give the
appropriate weight to the fact that Appellee-Father repeatedly
stated that if he were permitted substantially similar time with
the child he would consent to the relocation to Florida?
5. Whether the [t]rial [c]ourt erred in failing to place appropriate
weight on the fact that Appellee-Father testified that he
considered [Appellant-]Mother’s proposal to stop support
payments if she were able to relocate with the child, and that
the main reason he declined was because he was concerned
about what his other children might think of him?
6. Whether the [t]rial [c]ourt erred in fashioning a custody order
based upon an improper conclusion that the child has a close
relationship with his two adult sisters, as this conclusion is in
direct contradiction to the wealth of evidence and testimony
presented to the contrary?
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7. Whether the [t]rial [c]ourt erred by in [sic] fashioning a
custody order based upon an improper conclusion that the child
had developed a close relationship with Paternal Grandparents,
Aunts, Uncles, and cousins?
8. Whether the [t]rial [c]ourt erred in fashioning a custody order
based upon an improper conclusion that the child would not have
similar family relationships or a similar support system in
Florida?
9. Whether the [t]rial [c]ourt erred in fashioning a custody order
based upon an improper finding that “there was no persuasive
evidence presented at the hearing that the quality of the child’s
education would improve, or remain consistent for that matter, if
the child relocates to Florida,” which is contrary to all the
evidence and testimony presented, specifically the education
expert presented by Appellant-Mother?
10. Whether the [t]rial [c]ourt erred in fashioning a custody
order based upon an improper conclusion that there was “no
persuasive evidence that the relocation would enhance the
general quality of life for the child financially or emotionally?”
11. Whether the [t]rial [c]ourt erred in fashioning a custody
order based upon improperly speculating that Appellant-Mother
may not be willing to promote the child’s relationship with
Appellee-Father if the child were permitted to relocate?
12. Whether the [t]rial [c]ourt erred in applying and adopting
Dr. Anthony Pisa’s conclusion that if the child were to relocate to
Florida, “in his opinion the child’s loss from being separated from
Father and Father’s extended family would outweigh any benefit
gained by Mother in relocating?”
13. Whether the [t]rial [c]ourt erred in failing to consider the
uncontroverted and well-reasoned preference of the child, which
was to be able to relocate with Appellant-Mother?
14. Whether the [t]rial [c]ourt erred in failing to adjudicate the
underlying issues outlined in the Petition for Special Relief?
Mother’s Brief at 3–4.
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In custody cases under the Child Custody Act, (“the Act”), 23 Pa.C.S.
§§ 5321–5340, 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.
C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (internal citation
omitted). This Court “will accept the trial court’s conclusion unless it is
tantamount to legal error or unreasonable in light of the factual findings.”
M.G. v. L.D., ___ A.3d ___, ___, 2017 PA Super 29, *5 (Pa. Super. 2017)
(citing S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014)).
Further, we have stated the following:
[T]he discretion that a trial court employs in custody matters
should be accorded the utmost respect, given the special nature
of the proceeding and the lasting impact the result will have on
the lives of the parties concerned. Indeed, the knowledge
gained by a trial court in observing witnesses in a custody
proceeding cannot adequately be imparted to an appellate court
by a printed record.
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (quoting
Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)).
The primary concern in any custody case is the best interests of the
child. “The best-interests standard, decided on a case-by-case basis,
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considers all factors that legitimately have an effect upon the child’s
physical, intellectual, moral, and spiritual well-being.” Saintz v. Rinker,
902 A.2d 509, 512 (Pa. Super. 2006), (citing Arnold v. Arnold, 847 A.2d
674, 677 (Pa. Super. 2004)).
Section 5328(a) of the Act sets forth the best interest factors that the
trial court must consider when awarding custody. E.D. v. M.P., 33 A.3d 73,
80–81, n.2 (Pa. Super. 2011). Those factors are 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.
(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.
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(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 or inability
to cooperate with that party.
(14) The history of drug or alcohol abuse of a party or
member of a party’s household.
(15) The mental and physical condition of a party or
member of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S. § 5328(a).
Section 5337(h) of the Act sets forth the following ten relocation
factors that a trial court must consider when ruling on a relocation petition:
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(h) Relocation factors.—In determining whether to grant a
proposed relocation, the court shall consider the following
factors, giving weighted consideration to those factors which
affect the safety of the child:
(1) The nature, quality, extent of involvement and
duration of the child’s relationship with the party
proposing to relocate and with the nonrelocating party,
siblings and other significant persons in the child’s life.
(2) The age, developmental stage, needs of the child and
the likely impact the relocation will have on the child’s
physical, educational and emotional development, taking
into consideration any special needs of the child.
(3) The feasibility of preserving the relationship between
the nonrelocating party and the child through suitable
custody arrangements, considering the logistics and
financial circumstances of the parties.
(4) The child’s preference, taking into consideration the
age and maturity of the child.
(5) Whether there is an established pattern of conduct of
either party to promote or thwart the relationship of the
child and the other party.
(6) Whether the relocation will enhance the general
quality of life for the party seeking the relocation,
including, but not limited to, financial or emotional benefit
or educational opportunity.
(7) Whether the relocation will enhance the general
quality of life for the child, including, but not limited to,
financial or emotional benefit or educational opportunity.
(8) The reasons and motivation of each party for seeking
or opposing the relocation.
(9) The present and past abuse committed by a party or
member of the party’s household and whether there is a
continued risk of harm to the child or an abused party.
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(10) Any other factor affecting the best interest of the
child.
23 Pa.C.S. § 5337(h). “As the custodial parent seeking to relocate . . . ,
Mother had the burden of establishing that relocation is in her son’s best
interest.” See 23 Pa.C.S. § 5337(i) (“Burden of proof.—(1) The party
proposing the relocation has the burden of establishing that the relocation
will serve the best interest of the child as shown under the factors set forth
in subsection (h).”). D.K.D. v. A.L.C., 141 A.3d 566, 573 (Pa. Super.
2016), appeal denied, ___ A.3d ___, 2016 WL 6462545 (Pa. filed November
1, 2016). In addition, “[e]ach party 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).
Turning to the first issue on appeal, Mother asserts that the trial court
erred by failing to address individually the Section 5328(a) custody factors
and the Section 5337(h) relocation factors when issuing the subject order.
This issue is waived. Mother fails to support her two-sentence contention,
completely lacking in specificity, with any authority. Pa.R.A.P. 2119(b);
Banfield v. Cortes, 110 A.3d 155, 168 n.11 (Pa. 2015) (“Where an
appellate brief fails to provide any discussion of a claim with citation to
relevant authority or fails to develop the issue, . . . that claim is waived. It
is not the obligation of an appellate court to formulate an appellant’s
arguments for him. Wirth v. Commonwealth, 95 A.3d 822, 837 (Pa.
2014).” See also In re W.H., 25 A.3d 330, 339 n.3 (Pa. Super. 2011)
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(stating that issues are waived if appellate brief fails to provide meaningful
discussion with citation to relevant authority).
Even if not waived, we would conclude the claim is without merit. In
its order, the trial court stated that it “considered the custody factors as set
forth in 23 Pa.C.S. § 5328(a)(1) through (a)(16), as well as the relocation
factors as set forth in 23 Pa.C.S. § 5337(h)(1) through (h)(10) and weighed
these factors with the evidence presented. . . .” Order, 7/26/16, at 1.
Thereafter, the court delineated the reasons for its custody and relocation
decisions. Id. at 2-4. As such, we discern no legal error by the trial court.
Similarly, with respect to the fifth issue, we conclude that Mother’s
one-sentence claim is waived for her failure to provide meaningful discussion
with citation to relevant legal authority. Banfield, 110 A.3d at 168 n.11; In
re W.H., 25 A.3d at 339 n.3. Even if not waived, we would discern no
abuse of discretion. The trial court addressed the issue at length, in contrast
to Mother’s brevity. Further, we would adopt as dispositive of Mother’s fifth
issue the trial court’s Rule 1925(a) opinion. Trial Court Opinion, 10/18/16,
at 15–16.
In delineating the reasons for its custody and relocation decisions, the
trial court set forth its factual findings and made determinations regarding
credibility and weight of the evidence. Order, 7/26/16, at 2–4. In addition,
in its Rule 1925(a) opinion, the trial court set forth its factual findings, which
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are supported by the testimonial evidence. Trial Court Opinion, 10/18/16, at
1–4.
Importantly, the trial court found credible the testimony and opinion of
the custody evaluator, Dr. Pisa, who was appointed by agreement of the
parties. The court admitted into evidence Dr. Pisa’s thorough and
comprehensive custody evaluation report. Pisa Report, 12/29/15, at 1–75.
Dr. Pisa opined, “[T]he child’s ‘loss’ from being separated from Father and
Father’s extended family would outweigh any benefit gained by Mother in
relocating.” Order, 7/26/16, at 3. The trial court explained as follows:
Dr. Pisa testified that . . . Mother’s negative behavior
towards . . . Father thwarts the child’s relationship with . . .
Father, and that it could have a very negative psychological
impact on the child. If . . . Mother were permitted to relocate to
Florida, Dr. Pisa supported the contention that . . . Mother will
have even more of an opportunity to thwart . . . Father’s
relationship with the child.
Dr. Pisa’s December 29, 2015 final report . . . states that
[he] does not recommend that the child relocate to Florida. Dr.
Pisa states that “. . . the benefits derived by Mother as a result
of the move would have to be weighed against the losses
incurred by the child by being displaced from Father and Father’s
extended family . . . the child would continue to derive benefit
from being exposed to Father particularly as he grows older . . .
if the child were to stay in Philadelphia, he would have the
benefit of two caring parents. . . .
Trial Court Opinion, 10/18/16, at 3–4 (citations to record omitted); see also
N.T., 2/17/16, at 122 (“[I]t’s my opinion within a reasonable degree of
psychological certainty that [A.G.’s] loss about being separated from
[F]ather in a way that would divorce [Father] from participation in [A.G.’s]
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normal developmental experience and [F]ather’s extended family are losses
that . . . outweigh the benefit to [M]other if she were to move . . . .”).
In this appeal, but for her second and fourteenth issues, Mother
asserts that the trial court erred in denying her proposed relocation, claiming
that the testimonial evidence does not support the trial court’s factual
findings, or the trial court improperly weighed the testimonial evidence. We
have thoroughly reviewed the testimony, and we disagree.
Indeed, with respect to all of the foregoing issues wherein Mother
asserts that the trial court erred in denying her proposed relocation with
A.G. to Boca Raton, Florida, we conclude the testimonial evidence
overwhelmingly supports the court’s factual findings, and its conclusions are
reasonable in light of those findings. Thus, we discern no abuse of
discretion. Further, because this Court must defer to the determinations of
the trial judge with respect to the weight of the evidence, Mother’s issues in
that regard also fail. C.R.F., 45 A.3d at 441. Accordingly, we adopt as
dispositive of Mother’s third, fourth, sixth, seventh, eighth, ninth, tenth,
eleventh, twelfth, and thirteen issues on appeal, the trial court’s Rule
1925(a) opinion. Trial Court Opinion, 10/18/16, at 11–29.3
In Mother’s second issue, she argues that the trial court erred in
granting Father additional physical custody overnight on the Thursdays
____________________________________________
3
The parties are directed to attach a copy of the opinion in the event of
further proceedings in this matter.
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preceding Mother’s custodial weekends. Specifically, Mother contends that
the court “failed to give proper weight to the fact that Father consistently
failed to exercise custodial time provided to him by the” existing custody
order and failed to exercise extra custodial time Mother offered him.
Mother’s brief at 11. In addition, Mother avers, “Father had a history of
passing off his parental duties to [her]. . . .” Id. at 12. We disagree.
The trial court acknowledged that “Father does not always take
advantage of the time when the child is available to him.” Order, 7/26/16,
at 4. Further, in its Rule 1925(a) opinion, the trial court referenced Dr.
Pisa’s statement in his report that he “would not recommend consideration
of an equally shared [physical custody] arrangement until Father
demonstrates over time that he takes advantage of all the time the child is
available to him.” Trial Court Opinion, 10/18/16, at 12 (citation to record
omitted) (emphasis added). In addition, the trial court found that equally
shared physical custody “may be too great a change in the child’s routine
and schedule at this time. . . .” Id. at 12-13. Thus, the trial court denied
Father’s request for equally shared physical custody.
Nevertheless, the trial court concluded that it would be in A.G.’s best
interest to modify Father’s partial physical custody schedule by granting
Father “two additional overnights . . . per month.” Trial Court Opinion,
10/18/16, at 12. The court explained that it granted Father’s alternative
request for overnights on the Thursday evenings preceding Mother’s
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custodial weekends “based on the evidence presented that [Appellee] Father
and the child share a close relationship and that [Appellee] Father is able to
care for the child.” Id. at 13. Upon thorough review of the testimonial
evidence, we discern no abuse of discretion by the trial court in modifying
the existing custody order by granting Father extra overnights on the
Thursdays that precede Mother’s custodial weekends. Therefore, Mother’s
second issue fails.
In her fourteenth and final issue, Mother asserts that the trial court
erred in failing to adjudicate the underlying issues in her petition for special
relief. Specifically, Mother claims the trial court failed to enter an order with
respect to “which Synagogue the child should attend services and Hebrew
School.” Mother’s brief at 22. Mother’s issue is meritless.
Contrary to Mother’s assertion, the trial court stated in its Rule
1925(a) opinion that it adjudicated the underlying issues by denying her
petition for special relief. Trial Court Opinion, 10/18/16, at 17. Indeed, in
her petition, Mother requested that A.G. be immediately withdrawn from
Hebrew school at Temple Beth Hillel and enrolled in a new Hebrew school
mutually agreed upon by the parties. By denying Mother’s petition, the
court declined to order that A.G. be withdrawn from his current Hebrew
school. Upon careful review of the totality of the testimonial evidence in this
case, we discern no abuse of discretion by the court in denying Mother’s
petition. Therefore, we reject Mother’s final issue.
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Upon review, we conclude that the trial court carefully and thoroughly
considered A.G.’s best interests in its custody determinations. Because the
competent evidence of record supports the trial court’s findings, and the trial
court’s conclusions are reasonable in light of those findings, we affirm the
order denying Mother’s request to relocate with A.G. to Boca Raton, Florida,
her petition to modify the existing custody order, and her petition for special
relief. In addition, we affirm the custody order modifying Father’s partial
physical custody schedule granting him additional overnights on the
Thursdays preceding Mother’s custodial weekends.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/22/2017
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Circulated 05/01/2017 11:30 AM
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY
CIVIL ACTION - LAW
J._ ~·III NO. 12-18650
vs SUPERIORCOURT DOCKETNO.
2743 EDA 2016
Jiii G---"°
OPINION
COONAHAN, J. OCTOBER 18, 2016
Plaintiff/Appellant••••• (hereinafter "Plaintiff Mother") and
Defendant/Appellee •••••• ("hereinafter "Defendant Father") are the
parents of one unemancipated child, A.G. (date of birth October&
2007)(hereinafter "the child"). On February 17, 18 and 19, 2016, and June 14 and
15, 2016, the court held hearings on Defendant Father's April 27, 2015 Counter-
Affidavit Regarding Relocation, Plaintiff Mother's July 6, 2015 Petition to Modify an
Existing Custody Order, and Plaintiff Mother's August 25, 2015 Petition for Special
Relief. Plaintiff Mother was represented by Maria Testa, Esquire and Richard Bost,
Esquire, and Defendant Father was represented by Cheryl Young, Esquire,
Pursuant to a January 13, 2014 agreed custody order, the parents share legal
custody of the child, Plaintiff Mother has primary physical' custody of the child, and
Defendant Father has partial physical custody of the child every other weekend and
every Wednesday overnight during the school year. The child has lived in the
Philadelphia area since his birth. --·----·- ... - . -- - -·- - ------ - .
1111 ri:11'~~1:l~DIII
2012-18650-0078 \0118120163:36 PM # 11004393
Opinion
1 Rcpt#Z2908132 F~:so.oo
II.far\; U\: -MontCo Prothonotary
Defendant Father testified at the hearings that he has a close relationship with
the child. Defendant Father testified to the daily routine which he and the child
follow in regard to meals, homework, and bedtime. N.T. June 14, 2016 at 281-283,
287, 289-290. Defendant Father takes the child to Hebrew School and shares other
activities with the child such as basketball, soccer, museums, water parks, and play .
gyms. N.T. June 14, 2016 at 294-295. Defendant Father stated that the child also
has playdates with other children during Defendant Father's custodial weekends.
N.T. June 14, 2016 at 298.
There was testimony presented that the child spends time with his paternal
grandparents, his paternal aunt and uncle, and his cousins, at Hebrew school, and
on the weekends when he is with Defendant Father, and that he has a close
relattonshlp with his extended family. N.T. June 14, 2016 at 283-284, 296, N.T.
June 15, 2016 at 43-44. The child also has a close relationship with Defendant
Father's flancee, Stefanie Cutler. N.T. June 15, 2016 at 80.
Plaintiff Mother testified that she wished to relocate to Florida because she states
she has a support system in Florida, she wanted to live closer to her mother, who
resided in Florida, and that the weather in Florida would be better for an injury she
sustained to her hand. Plaintiff Mother also testified that she would be working as a
part time relator's assistant in Florida. However, since Plaintiff Mother filed her
Notice of Relocation on April 23, 2015, her mother has passed away. Furthermore,
her mother's residence was six hours away from where Plaintiff Mother planned to
relocate in Florida. N.T. June 14, 2016 at 51, 52. There was also testimony that
since her mother moved to Florida in 2012, Plaintiff Mother only visited her four
times until her death in January, 2016. N.T. June 14, 2016 at 159.
2
Plaintiff Mother stated that her support system in Florida was comprised of her
cousin, Randy Levlne, a friend named Laurie Dubow, and the directors of a summer
camp which her older children attended. However, there was testimony presented
that Plaintiff Mother's relationship with her cousin and Ms. Dubow is not close, and
Plaintiff Mother's contact with the operators of the summer camp, "Isaac and Rose"
was limited to once a year prior to the custody litigation. N.T. February 19, 2016 at
71; N.T. June 14, 2016 at 63, 87, 88, 186, 218, 235.
Plaintiff Mother testified that she intended to work as a real estate agent's
assistant in Florida with the intention of becoming a part-time real estate agent.
However, Plaintiff Mother does not have either a Pennsylvania or Florida real estate
license. N.T. June 14, -2016 at 115. Plaintiff Mother offered no persuasive evidence
that she sought a similar position in Pennsylvania, or that she attempted to find any
job in Pennsylvania for that matter. N.T. June 14, 2016 64-66, 115, 124.
Plaintiff Mother did not present any persuasive evidence to the. court that her
hand injury prohibits her from remaining in Pennsylvania or that Florida would
somehow alleviate her injury. There was testimony presented that despite her
injury, Plaintiff Mother has still been able to enjoy her hobbies such as painting, and
playing the flute on a consistent basis. Plaintiff mother testified that she wants to
move to Florida in order to have a "fresh start" and also to get away from
Defendant Father and his family. N.T. June 14, 2016 at 77.
At the February 17, 2016 hearing, Dr. Anthony Pisa testified that he conducted a
custody evaluationln connection with this case which was completed at the end of
December, 2015. Dr. Pisa testified that Plaintiff Mother's negative behavior towards
Defendant Father thwarts the chlld's relationship with Defendant Father, and that it
3
could have a very negative psychological impact on the child. N.T. February 17,
2016 at 150-152. If Plaintiff Mother were permitted to relocate to Florida, Dr. Pisa
supported the contention that Plaintiff Mother will have even more of an opportunity
to thwart Defendant Father's relationship with the child. N.T. February 17, 2016 at
177.
Dr. Pisa's December 29, 2015 final report, marked and entered as trial exhibit M-
1, states that Dr. Pisa does not recommend that the child relocate to Florida. Dr.
Pisa states that " ... [t]he benefits derived by Mother as a result of the move would
have to be weighed against the losses incurred by [the child] by being displaced
from Father and Father's extended family ... [the child] would continue to derive
benefit from being exposed to Father particularly as he grows older .. .if [the child]
were to stay in Philadelphia, he would have the benefit of two caring parents ... "
December 29, 2015 final report at 74; N.T. February 17, 2016 at 112.
1
On July 26, 2016, the court issued an order as follows:
"AND NOW, this 26th day of July, 2016, upon consideration
of Defendant's April 27, 2015 Counter-Affidavit Regarding
Relocation, Plaintiff's July 6, 2015 Petition to Modify an Existing
Custody Order, Defendant's July 16, 2015 Petition to Modify
Custody, and Plaintiff's August 25, 2015 Petition for Special
Relief, following hearings on February 17, 18 and 19, 2016 and
June 14 and 15, 2016, and upon consideration of Defendant's
July 15, 2016 Proposed Findings of Fact and Conclusions of
Law, and Plaintiff's July 15, 2016 Proposed Findings of Fact and
Conclusions of Law, the Court makes the following findings:
The parties are the parents of one minor child, [A.G.]
(DOBlOl4l'I07). On January 13, 2014, Plaintiff/Mother
(hereinafter "Mother") and Defendant/Father ("Father") entered
into a stipulated custody order which provided for, .l..!iliU alia,
Mother and Father to share legal custody of the child, Mother to
have primary physical custody of the child, and Father to have
partial physical custody of the child every Wednesday
overnight, as well as every other weekend.
I The July 26, 2016 order was docketed with the Montgomery County ProthOnotary on July 27, 2016.
4
The Court has considered the custody factors at set forth in 23
Pa.C.S.A. § 5328(a)(l) through (a)(16), as well as the
relocation factors as set forth in 23 Pa.C.S.A. § 5337(h)(l)
through (h)(lO) and weighed these factors with the evidence
presented at the hearings as follows:
Relocation:
The Court has considered the best Interests of the child by
considering the child's current schedule and the importance of
both parents maintaining an active role in the growth and
development of the child. Based on the evidence presented at
the hearings, the Court finds that a relocation to Florida would
not be in the child's best interests.
The child has lived in Pennsylvania since his birth. The child has
developed relationships with extended family in the Philadelphia
area, which includes his paternal grandparents, aunts, uncles
and cousins. He also has a close relationship with his two adult
sisters. The child does not have similar family relationships or a
similar support system in Florida.
Under the current custody schedule, Father has partial physical
custody of the child every Wednesday overnight. There was
testimony that Father spends meaningful time together with the
child on Wednesday school days. Father helps the child get
ready for school in the morning, takes him to school, and in the
evening Father helps him with his homework and to get ready
for bed. On Wednesday afternoons Father picks the child up
from school and takes him to Hebrew School. The Court found
that a relocation of the child to Florida would be detrimental to
Father's ability to exercise his periods of partial physical
custody since the child would be attending school in Florida,
thereby making Father's overnight custody on Wednesdays
impossible. Mother has proposed that in exchange for Father
losing his weekday custodial time, Father would have longer
periods of time with the child in the summer, and she believes
a schedule could be created which would give Father a
"substantially" similar amount of time with the child as he now
has. The Court does not find that.this is a viable alternative to
the custodial time which the child currently has with Father, nor
would Father be able to spend a "substantially" similar amount
of time with the child if the child relocates to Florida.
Under the current custody order, Father is able to attend the
child's medical appointments, school conferences,
extracurricular activities, and religious events if he so chooses.
If the child relocated to Florida, Father's ability to participate in
these aspects of the child's upbringing would be severely
compromised.
There was no persuasive evidence presented at the hearings
that the quality of the child's education would improve, or
remain consistent for that matter, if the child relocates to
5
Florida. The child has special educational needs which are being
met in Pennsylvania. The child currently attends Lower Merion
School District. Furthermore, Father testified that he has to a
limited extent researched private schools in this area which
could also meet the child's educational needs.
There was also no persuasive evidence that the relocation
would enhance the general quality of life for the child financially
or emotionally.
Based on the testimony presented at the hearings, the Court
also has concerns as to Mother's willingness and ability to
promote the child's relationship with Father if Mother and the
child relocate to Florida.
Mother testified that one of the reasons she wishes to relocate
to Florida is because Father and his family have "shunned" her
from the synagogue, Temple Beth Hillel-Beth El. The Court does
not find that Mother presented persuasive evidence to support
this claim. Furthermore, the court does not find that this is a
valid reason for relocation to another state even if Mother's
allegations are in fact true.
Mother's claim that her employment opportunity in Florida
supports a relocation of the child is not persuasive. The job
Mother would have in Florida is a part time position with a
realtor's office, however, Mother does not have a realtor's
license in either Florida or Pennsylvania. Mother did not present
any persuasive evidence that she has attempted to find
employment in Pennsylvania. Mother did not prove to the Court
that her sole, viable employment opportunity is in Florida and
that, therefore, relocation would be in the child's best interests.
The Court has taken into consideration the testimony of Dr.
Anthony Pisa, who was appointed on July 20, 2015 by
agreement of the parties as the custody evaluator in this
matter. Dr. Pisa testified that if the child were to relocate to
Florida, in his opinion the child's "loss" from being separated
from Father and Father's extended family would outweigh any
benefit g~ined by Mother in relocating.
Custody:
The Court finds that the child has been doing well under the
current custody schedule. The Court finds that the child's need
for stability and continuity would best be met by the current
custody order remaining in effect. Father did not prove by a
preponderance of the evidence that a modification to a shared
physical custody schedule would be in the child's best interests.
Father did not prove that- Mother is unable to care for the child
or is unable to provide for his needs in a manner which would
support reducing Mother's periods of physical custody. In fact,
6
there was testimony presented that Mother is a "very strong
parent".
Mother has provided the majority of the parental duties for the
child. There was testimony that Father sometimes abdicates his
parental responsibilities and duties to Mother. Mother presented
evidence to the Court that, on occasion, Father does not always
take advantage of the time when the child is available to him.
Based on the testimony at the hearing, the Court finds that
neither parent has any current issues with drug or alcohol
abuse which would affect his/her abilfty to care for the child.
There was no persuasive testimony as to any present or past
physical abuse by either parent or a member of either parent's
household towards the child.
Based on the testimony at the hearing, the Court finds that
neither parent nor any member of either parent's household
has a mental or physical condition which would affect his/her
ability to care for the child.
The Court has also considered the testimony of Dr. Pisa, who
stated that in his opinion, Mother should retain primary physical
custody of the child.
The Court hereby ORDERS and DECREES as follows:
Mother's request for relocation Is DENIED.
Father's request for shared physical custody of the child is
DENIED. Father's request to have physical custody of the child
Thursday overnight preceding Mother's custodial weekends is
GRANTED. Father shall have custody of the child every
Thursday preceding Mother's custodial weekend from after
school on Thursday until Friday morning drop off at school, or
9:00 a.m. If school is not in session.
The January 13, 2014 stipulated custody order shall remain in
full force and effect to the extent that it does not conflict with
this Order.
Mother's August 25, 2015 Petition for Special Relief is DENIED.
NOTICE TO THE PARTIES - RELOCATION BY EITHER PARENT
Pursuant to 23 Pa. C.S.A. 5323(c), any custody order shall
Include notice of a party's obligations under 23 Pa.C.S.A. §5337
relating to relocation, These obligations are contained in 23
Pa.C.S.A. §5337(b)(General rule),and (c)(Notice)."
7
On August 23, 2016, Plaintiff Mother filed a Notice of Appeal to the Superior
Court of Pennsylvania of the July 26, 2016 order, a Notice Pursuant to Pa.R.A.P.
904(f) that the matter is a children's fast track appeal, and her Concise Statement
of Matters Complained of on Appeal which states as follows2:
a. "The Court erred by failing to individually address the sixteen (16) custody
factors and ten (10) relocation factors when issuing its Order. The Court failed to
show that the Court weighed all the custody factors when drawing its conclusion in
this case."
b. "The Court erred ln concluding that Respondent should be awarded additional
physical custody."
c. "The Court erred in fashioning a custody order based upon an improper
conclusion that Respondent spent 'meaningful time together with the child on
Wednesday'."
d. "The Court erred in fashioning the custody order by not giving appropriate
weight to the fact that Respondent repeatedly stated that if he were permitted
substantially similar time with the child he would consent to the relocation to
Florida."
e. "The Court erred by not placing appropriate weight to the fact that
Respondent testified that he considered Petitioner's proposal to stop support
payments if she were able to relocate with the child, and that the main reason he
declined was because he was concerned about what his other children might think of
him."
f. "The Court erred by failing to adjudicate the underlying issues outlined in
the petition for Special Relief"
g. "The Court erred in fashioning a custody order based upon an improper
conclusion that the child has a close relationship with his two adult sisters, as this.
conclusion is in direct contradiction to the wealth of evidence and testimony
presented to the contrary."
h. "The Court erred in fashioning a custody order based upon an improper
conclusion that the child had developed a close relationship with Paternal
Grandparents, Aunts, Uncles and cousins."
i. "The Court erred in fashioning a custody order based· upon an Improper
conclusion that the child.would not have similar family relationships or a similar
support system in Florida"
j. "The Court erred in fashioning a custody order based upon an improper
finding that 'there was no persuasive evidence presented at the hearings that the
quality of the child's education would improve, or remain consistent for that matter,
if the child relocates to Florida' was contrary to all the evidence and testimony
presented, specifically the education expert presented by Petitioner."
k. "The Court erred in fashioning a custody order based upon an improper
conclusion that there was 'no persuasive evidence that the relocation would enhance
the general quality of life for the child financially or emotionally'."
2Plaintiff Mother included argument under each issue listed in her concise statement. Pa.R.C.P.
1925(b)(4)(iv) states in part: "The Statement should not be redundant or provide lengthy
explanations as to any error." Therefore, the court's opinion states only Plaintiff Mother's specific
matters complained of on appeal, and has not restated her arguments herein.
8
I. The Court erred In fashioning a custody order based upon improperly
speculating that Petitioner may not be willing to promote the child's relatlonship with
Respondent if the child were permitted to relocate."
m. "The Court erred in applying and adopting Dr. Pisa's conclusions that if the
child were to relocate to Florida, 'in his opinion the child's loss from being separated
from Father and Father's extended family would outweigh any benefit gained by
Mother In relocating'."
n. "The Court failed to consider the uncontroverted and well-reasoned
preference of the child, which was to be able to relocate with Petitioner."
This opinion is filed pursuant to and is in compliance with Pa. R.A.P. 1925 (a).
The standard of review of a custody order is very narrow; the appellate court
is limited to determining whether the trial court committed a gross abuse of
discretion. See Yates v. Yates, 963 A.2d 535 (Pa. Super. 2008). When reviewing an
appeal from a custody order, the appellate court should not substitute its judgment
for that of the trial court; the appellate court merely decides if the conclusions of
the trial court involve an error of law or are unreasonable in light of its factual
findings. Hanson v. Hanson, 878 A.2d 127, 129 (Pa. Super. 2005). Only where the
appellate court finds that a child custody order is manifestly unreasonable as shown
by the evidence of record wlll it interfere with the trial court's determination. K.B.
II v. C.B.F., 2003 PA Super 364, 833 A.2d 767 (2003).
23 Pa.C.S.A. § 5337(h) lists the factors which the court shall consider in
determining whether to grant a proposed relocation as follows:
"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
nonrelocattnq 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.
9
(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
beri.eflt 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.
In all cases where one parent seeks to relocate and the other parent opposes the
move, the burden is on the relocating parent to establish a significant improvement
in the quality of life for that parent and child. Tripathi v. Tripathi, 2001 PA Super
322, 787 A.2d 436. A "sensitive case-by-case balancing" is required to ensure that
all interests are treated as equitably as possible. Boyer v. Schake, 2002 PA Super
148, 799 A.2d 124 (2002). The trial court should seek to sacrifice the noncustodial
parent's interests as little as possible "in the face of the competing and often
compelling irterest" of a custodial parent who seeks a better life in another
geographical location. Johns v. Cioci, 2004 PA Super 492, 865 A.2d 931 (2004).
The trial court addresses Plaintiff Mother's claims as follows;
10
a. "The Court erred by failing to individually address the sixteen (16) custody
factors and ten (10) relocation factors when issuing its order. The Court failed to
show that the Court weighed all the custody factors when drawing its conclusion in
this case."
23 Pa.C.S.A. §5328 lists the factors which the court must consider when reaching
a decision for an award of custody. 23 Pa.C.S.A. §5323(d) states as follows:
"Reasonsfor Award - The court shall delineate the
reasons for its decision on the record in open court or in
a written opinion or order."
Nothing in 23 Pa.C.S.A. 5321 fil .s..e.g requires the court to "individually address" the
sixteen custody factors, or the ten relocation factors when fashioning an order on
custody or relocation. The court is simply required to consider the factors along
with the evidence as presented, and to delineate its reasons for a custody
determination in open court on the record or in writing. In this case, the court did
so, stating precisely what its reasons were for not only the custody decision, but
the relocation decision, in the July 26, 2016 order. The Child Custody Act does not
require a specific amount of detail for the trial court's explanation of its decision; 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, 2013 PA
Super 40. Therefore, Plaintiff Mother's claim in paragraph a. of her concise
statement is without merit and contrary to the facts of the case, and should be
dismissed.
b. "The Court erred In concluding that Respondentshould be awarded additional
physical custody,"
Pursuant to a January 13, 2014 agreed custody order, the parents share. legal
custody of the child, Plaintiff Mother has primary physical custody of the child, and
Defendant Father has partial physical custody of the child every other weekend and
11
every Wednesday overnight during the school year. As part of the custody litigation
in this matter, Plaintiff Mother filed a petition to modify the existing custody order.
At the hearings, and in his post trial brief to the court, Defendant Father requested
equally shared physical custody of the child. In his final report, Dr. Pisa states: "the
examiner would not recommend consideration of an equally shared arrangement
until Father demonstrates over time that he takes advantage of all the time [the
child] is available to him." December 29, 2015 final report at 74.
After weighing the evidence presented at the hearings with the custody factors
pursuant to 23 Pa.C.S.A. §5328, the court did not find that an award of shared
50/50 custody would be in the child's best interests at this time. However, the court
did find that it would be in the best interests of the child to award Defendant Father
additional custodial time with the child.
As stated in the court's July 26, 2016 order, Defendant Father did not prove by a
preponderance of the evidence that a modification to a shared physical custody
schedule would be in the child's best interests. There was testimony that the child
is doing well under Plaintiff Mother's primary physical custody, and that Plaintiff
Mother is a "very strong parent". However, Defendant father requested at the
hearings that he have physical custody of the child every Thursday preceding
Plaintiff Mother's custodial weekend from after school until Friday drop off at school.
This modification provides Defendant Father with two additional overnights with the
child per month. The court did find that Defendant Father is able to care for the
child and meet his daily needs, that he has a close, loving relationship with the
child, and he is able to provide adequate child care for the child when necessary;
Therefore, although a modification to a shared physical custody schedule may be
12
too great a change in the child's routine and schedule at this time, awarding
Defendant Father two additional overnight periods of custody per month is not an
abuse of the court's discretion based on the evidence presented that Defendant
Father and the child share a close relationship and that Defendant Father is able to
care for the child.
Therefore, Plaintiff Mother's claim in paragraph b. of her concise statement is
without merit and contrary to the facts of the case, and should be dismissed.
c. "The Court erred in fashioning a custody order based upon an improper
conclusion that Respondent spent 'meaningful time together with the child on
Wednesday'."
The evidence presented at the hearings proved that Defendant Father and the
child follow a routine on Wednesdays that provides the child with meaningful
contact with Defendant Father. On Wednesday afternoons after school, Defendant
Father takes the child to Hebrew School. The child's paternal grandmother is
present at the Hebrew School, and she and the child get to spend time talking and
sharing a snack together. N.T. June 14, 2016 at 284-285. After Hebrew School, the
child returns to Defendant Father's home, where he has dinner with Defendant
Father and Defendant Father's flancee, Ms. Cutler. After dinner, Defendant Father
helps the child with his homework, and they also spend time together playing or
talking before the child goes to bed. N .T. June 14, 2016 at 287-291.
Based on the testimony presented, Plaintiff Mother's allegation that the court
reached an improper conclusion that Defendant Father and the child spend
meaningful time together on Wednesday is therefore contrary to the evidence and
without merit, and should be· dismissed.
d, "The Court erred in fashioning the custody order by not giving appropriate
weight to the ~act that Respondentrepeatedly stated that if he were permitted
13
substantially similar time with the child he would consent to the relocation to
Florida."
The record from the hearings in this matter does not support Plaintiff Mother's
allegation ttiat Defendant Father "repeatedly stated that if he were permitted
substantially similar time with the child he would consent to the relocation to
Florida". Defendant Father testified at the June 15, 2016 hearing: "I can't imagine
[the child] living anywhere other than very, very, close to me ... " N.T. June 15, 2016 ·
at 85. When asked by his counsel if he would be willing to accept Plaintiff Mother's
custodial plan wherein Defendant Father would receive "the same number of days"
with the child if the child were to relocate to Florida, Defendant Father stated: "I
don't like the plan whatsoever. The same number of days, you can't compare the
quality and consistency of the closeness of having [the child] nearby with being,
with having to hop on an airplane, stay in a hotel room ... it would not be the same."
N.T. June 15, 2016 at 86. Defendant Father testified that he opposed the proposed
relocation to Florida because " .. I love [the child] very, very, much. I can't really
imagine my life without him and without watching him on a weekly basis and being
very much involved in his life ... " N.T. June 15, 2016 at 83.
When asked on cross examination by Plaintiff Mother's counsel if he would be
willing to withdraw his request for 50-50 custody if Plaintiff Mother was to withdraw
her request to relocate, Defendant Father said no. N.T. Ju_ne 15, 2016 at 90. Trial
Exhibit M-12 is a January 19, 2015 email wherein Defendant Father states to
Plaintiff Mother: "Unless you can figure a way for [the child] to be with me
overnight 9/28ths of the time, 32 percent, as he is now, forget it." Trial Exhibit M-
12. When asked by Plaintiff Mother's counsel: "so if Ms. Giii]•• can figure out a
14
way or a proposal for [the child] to be with you 32 percent of the time, are you still
agreeable", Defendant Father replied "no." N.T. June 15, 2016 at 91. At no time
during his direct examination, or his cross examination, did Defendant Father
repeatedly state that he would be willing to accept "substantially similar" time with
the child if the child were to relocate to Florida.
Plaintiff Mother's allegation in paragraph d. of her concise statement that
Defendant Father "repeatedly stated that if he were permitted substantially similar
time with the child he would consent to the relocation to Florida" is contrary to the
evidence presented at the hearings, is without merit, and should be dismissed.
e. "The Court erred by not placing appropriate weight on the fact that
Respondent testified that he considered Petitioner's proposal to stop support
payments if she were able to relocate with the child, and that the main reason he
declined was because he was concerned about what his other children might
think of him . "
As stated previously in this opinion when addressing paragraph d. of Plaintiff
Mother's concise statement, Defendant Father testified that he he opposed the
relocation of the child to Florida because he did not want to lose "the quality and
consistency of the closeness of having [the child] nearby." The weight of the
evidence at the hearings proved by a preponderance of the evidence that
Defendant Father has a close, loving relationship with the child, and he does not
want to be geographically separated from the child at a distance of over nine
hundred miles.
Trial Exhibit F-22 is a January 17, 2016 email from Defendant Father to Plaintiff
Mother wherein Defendant Father states in part: "I reread the attached schedule
and gave some additional thought to your offer ... unfortunately I can't even get very
far into the idea... and I get too emotional about the fact I wouldn't be as much in
15
· [the child's] life." Defendant Father testified that this email related to Plaintiff
Mother's proposal that in exchange for her relocating to Florida with the child,
Defendant Father would no longer have to pay her alimony. N.T. June 15, 2016 at
154. However, when asked by his counsel if he considered this proposal, Defendant
Father testified: " .. .I didn't consider it very long, and it was a clear no." N.T. June
15, 2016 at 154.
Although Plaintiff Mother does not refer to any specific portion of the record to
support her contention that Defendant Father "testified that he considered
Petitioner's proposal to stop support payments if she were able to relocate with the
child, and that the main reason he declined was because he was concerned about
what his other children might think of him", on cross examination, Plaintiff Mother's
counsel stated when referring to trial exhibit F-22: "you considered the relocatlonr>
and you told her what would the girls think of me. That was your issue right?"
Defendant Father simply replied: "It was an issue."
Contrary to Plaintiff Mother's position, in reaching a decision in this matter, the
court did place the appropriate amount of weight on this issue. Defendant Father's
one time consideration of a proposal of Plaintiff Mother's to eliminate support
payments in exchange for relocation, a proposal which Defendant Father testified
he " ... didn't consider it very long, and it was a clear no", does not rise to the level to
which the court could conclude that Defendant Father's motivations for opposing
relocation are disingenuous. Consequently, Plaintiff Mother's allegation in paragraph
e. of her concise statement is without merit, and should be dismissed.
f. "The Court erred by failing to adjudicate the underlying Issuesoutlined in the
petition for Special Relief"
16
Plaintiff Mother's August 25, 2015 Petition for Special Relief requested that the
court issue an order withdrawing the child from his current Hebrew school, and
enrolling him in a new Hebrew school which would be mutually agreed upon by both·
parents. The court's July 26, 2016 Order states on page 5 that Plaintiff Mother's
August 25, 2015 Petition for Special Relief is denied. Therefore, it is unclear how
the court failed to "adjudicate" the petition for special relief. Consequently, Plaintiff
Mother's allegation in paragraph f. of her concise statement is without merit, and
should be dismissed.
g. "The Court erred in fashioning a custody order based upon an improper
conclusion that the child has a close relationship with his two adult sisters, as this
conclusion is in direct contradiction to the wealth of evidence and testimony
presented to the contrary."
The child in this matter has two living adult sisters, FR•• Gd I & r and
J.,.... c••.... 3
J- G· IC: t testified-that her relationship with the child "has
always been very close". N.T. June 14, 2016 at 176. She stated that she worked for
several summers as his nanny, and after she graduated from college, she.worked
for a year at his preschool, where she saw him every day. N.T. June 14, 2016 at
176. J.-. Gt• I I testified: "My relationship with [the child] is everything to
me, and it is the only reason that I'm [testifying] right now, because this is
extremely distressing to me." N.T. June 14, 2016 at 180. J- cai•••t.1 testified
that if the child were to relocate to Florida, she would not be able to see the child
as often as she does now.
Fa o Gil I I testified that she also has a good relationship with the .child.
She stated that: "I'm his sister, but because I'm much older, I feel like I'm also a
3
The child has a third sister, oa G dli • , who died in an automobile accident in 2005 at the age of
nineteen.
17
guardian of his .. .I was home quite a bit. I go home every five to six weeks. I see
him each time." N.T. June 14, 2016 at 207. She also testified that if the child were
to relocate to Florida, she would be "deflnltelv" worried about her relationship with
him because she was only able to manage seeing her grandmother who lived in
Florida once a year, " ... and I expect that if my brother moves to Florida, it would be
a similar situation." N.T. June 14, 2016 at 217-218. The weight of the evidence
indicates that the court did not reach an "improper conclusion" in finding that the
child's sisters have a close and loving relationship with him.
During cross-examination, Plaintiff Mother's counsel attempted to diminish the
child's relationship with his two sisters by focusing on the amount of time they
spend with the child rather than the quality of the relationships. The court did not
conclude that the amount of time which siblings spend together outweighs the
quality and nature of the relationship as well as the feelings of affection which
siblings may have for one another.
The testimony in this matter clearly indicates that the child's sisters have a great
deal of affection for him, and their relationship with hlrnwould be compromised if
he were to relocate to Florida. Consequently, Plaintiff Mother's allegation in
paraqraph f. of her concise statement is without merit, contrary to the evidence,
and should be dismissed.
h. "The Court erred in fashioning a custody order based upon an improper
conclusion that the child had developed a close relationship with Paternal
Grandparents, Aunts, Uncles and cousins."
The child's paternal grandparents, paternal aunt and uncle, and paternal cousins
all live in the Philadelphia area. The child's paternal grandmother, J•••: ••
Gd :a, testified that she has a "warm and loving" relationship with the child.
18
N.T. June 14, 2016 at 120. She testified that she spends summers at the New
Jersey shore with him, that she sees him every Wednesday at Hebrew school, and
on Sundays the family gets together for a meal. N.T. June 14, 2016 at 125-126.
Defendant Father testified that the child has an "excellent" relationship with his
paternal grandparents, and a "great" relationship with his paternal aunt and uncle,
who "are included in every family dinner." N.T. June 15, 2016 at 44. The child
knows his paternal aunt and uncle "very well", and he has socialized and been on
vacation with them many times. The child also has a "great" relationship with his
cousins, whom he sees "all the time." N.T. June 15, 2016 at 44.
The court's conclusion that the child has a close relationship with his paternal
relatives in the Philadelphia area was not improper. The testimony in this matter
clearly indicates that the child's relationship with his paternal relatives would be
compromised if he were to relocate to Florida since his time with them would be
limited, if not effectively eliminated. Consequently, Plaintiff Mother's allegation in
paragraph g. of her concise statement is without merit, contrary to the evidence,
and should be dismissed.
i. "The Court erred in fashioning a.custody order based upon an Improper
conclusion that the child would not have similar family relationships or a similar
support system in Florida"
Plaintiff Mother testified that despite living in Pennsylvania all her life, she has a
"support system" in Florida. N.T. June 14, 2016 at 88. However, Plaintiff Mother's
family currently living in Florida consists of two people; her sister, whom she
testified she is estranged from ("we always have been"), and a cousin, Randy
Levine. N.T. June 14, 2016 at 89. The parties' daughters testified that they had
never heard of Mr. Levine prior to the custody litigation, and Plaintiff Mother
19
testified that her daughters do not know Randy Levine and that they don't have a
relationship with him. N.T. February 19, 2016 at 71; N.T. June 14, 2016 at 63 186.
Based on the evidence presented at the hearings, the court cannot conclude that :
Plaintiff Mother's family members in Florida would provide "similar family
relationships" for the child comparable to those he has with Defendant Father's
family. Plaintiff Mother herself testified that when it comes to her extended family,
she is "pretty much alone". N.T. June 14, 2016 at 89. Therefore the court did not
err or improperly conclude that the child would not have similar family relationships
in Florida to those which he currently has in Pennsylvania.
Plaintiff Mother's remaining support system in Florida would consist of four
individuals. The first is Mr. Farrell Borine, who testified that he is "best friends,
good friends" with Plaintiff Mother, and that "at times" their five year relationship
was "romantic". At the time of the hearings, Mr. Borine was planning on moving to
Florida in early Auqust, 2016. Laurie Dubow, a friend of Plaintiff Mother's with
whom she had lost touch for twenty five years, is the second individual. The final
individuals are "Isaac and Rose", operators of a summer camp in Florida where the
parties' daughters attendedwhen they were children. The testimony presented at
the hearings does not prove that these individuals would provide a similar support
system for the child in Florida to the one which he has in Pennsylvania. There was
no persuasive evidence to show that any of these individuals, other than Mr.
Borine, has a close relationship with the child, or that they have been active
participants in the child's upbringing.
For the above stated reasons, the court did not err in concluding that the child
would not have similar family relationships or a similar support system in Florida as
20
he has in Pennsylvania. Consequently, Plaintiff Mother's allegation in paragraph h.
of her concise statement is without merit, contrary to the evidence, and should be
dismissed.
j. ·"The Court erred in fashioning a custody order based upon an improper
finding that 'there was no persuasive evidence presented at the hearings that the
quality of the child's education would improve, or remain consistent for that
matter, If the child relocates to Florida' was contrary to all the evidence and
testimony presented, specifically the education expert presented by Petitioner."
There was testimony presented that the child currently attends school in the
Lower Merion School District. There was also testimony that the child is receiving
an individualized educational plan (IEP) through the school district to address his
language based learning differences. N.T. June 14, 2016 at 244-245. Defendant
Father testified that he is happy with the Lower Merion School District, but that he
also feels that the child would do better in a private school setting. N .T. June 14,
2016 at 246. Defendant Father testified that he has researched the possibility of
the child attending private school, specifically Perelman Jewish Day School in
Wynnewood, Pennsylvania, and AIM Academy in Conshohocken, Pennsylvania.
At the February 18, 2016 hearing, Plaintiff Mother called Maria Vetter, an
educational consultant, as a witness. Ms. Vetter testified that in her opinion, Lower
Merion School District was not addressing all of the child's behavioral needs.
However, Ms. Vetter testified that she did not review the child's current IEP from
Lower Merion School District because it was not provided to her, and that her
opinion as to the child's current behavioral issues was based on "communications
[Plaintiff Mother] had sent me." N.T. February 18, 20l6 at 171-172, 184-186. She
also did not meet with any of the child's teachers, nor did she meet with the child.
N.T. February 18, 2016 at 186. When asked by Plaintiff Mother's counsel if it would
21
be detrimental or beneficial to move the child to a different school district, Ms.
Vetter stated that it would "depend on the child". N.T. February 18, 2016 at 184.
Ms. Vetter did not offer an opinion as to whether the school system in Boca
Raton would specifically be able to meet the child's academic and behavioral needs
to a degree which surpasses the Lower Merion School District. In fact, she testified
that she "researched" the Palm Beach School District, and "talked to" the Donna
Klein Jewish Academy in Florida, however she did not provide any testimony as to
whether either that specific school district, or that specific school, would be a good
academic fit for the child, and would better be able to meet his learning and
behavioral issues. N.T. February 18, 2016 at 188. Ms. Vetter also testified that she
is not familiar with Florida schools. N.T. February 18, 2016 at 188. Ms. Vetter
agreed with Defendant Father's counsel that there are appropriate schools for the
child in Pennsylvania, however, she did not research them as part of her
consultant services in this case since she was not asked to do so by Plaintiff
Mother.
Plaintiff Mother's claim is without merit and that all the evidence presented at the
hearings, specifically, the education expert's testimony, proves that the court erred
in finding that "there was no persuasive evidence presented at the hearings that
the quality of the child's education would improve, or remain consistent for that
matter, if the child relocates to Florida" Ms. Vetter's opinion was based on
incomplete data; she did not review the child's current IEP, nor did she interview
the child or the child's teachers. At most, based on the information provided to her
by Plaintiff Mother, she offered the opinion that the Lower Merion School District is
not meeting the child's behavioral needs. She did not, however, testify that any ·
22·
school in Florida would be better for the child, nor did she discount the possibility,
as raised by Defendant Father, that a private school in Pennsylvania would be able
to meet the child's academic and behavioral needs. Consequently, Plaintiff Mother's
allegation in paragraph j. of her concise statement is without merit, contrary to the
evidence, and should be dismissed.
k. "The Court erred in fashioning a custody order based upon an improper
conclusion that there was 'no persuasive evidence that the relocation would
enhance the general quality of life for the child financiaUy or emotionally'."
Plaintiff Mother offered no persuasive evidence or opinion testimony that
relocation to Florida would emotionally benefit the child. Dr. Pisa testified that
•
Plaintiff Mother's negative behavior towards Defendant Father thwarts the child's
relationship with Defendant Father and that it could have a very negative
psychological impact on the child. N.T. February 17, 2016 at 150-152. If Plaintiff
Mother were permitted to relocate to Florida, Dr. Pisa supported the contention that
Plaintiff Mother could have even more of an opportunity to thwart Defendant
Father's relationship with the child. N.T. February 17, 2016 at 177.
Dr. Pisa's December 29, 2015 final report, marked and entered as trial exhibit M-
1, states that Dr. Pisa does not recommend that the child relocate to Florida. Dr.
Pisa states that " ... [t]he benefits derived by Mother as a result of the move would
have to be weighed against the losses incurred by [the child] by being displaced
from Father and Father's extended family ... [the child] would continue to derive
benefit from being exposed to Father particularly as he grows older ... if [the child]
were to stay in Philadelphia, he would have the benefit of two caring parents ... "
December 29, 2015 final report at 74; N.T. February 17, 2016 at 112.
23
In her July 15, 2016 post trial proposed findings of fact and conclusions of law,
when addressing the emotional benefits for the child if he were to relocate to
Florida, Plaintiff Mother states that the move would "allow [the child] easy access to
the beach and ocean, which is his 'happy place'." Plaintiff Mother also states that
living in Florida would provide the opportunity for the child to play outdoors "the
majority of the year", that there are "many kids" in Plaintiff Mother's proposed
neighborhood for the child to play with, and that relocation "will also preserve the
child's close relationship with Mother" and Mr. Borine. July 15, 2016 Proposed
Findings of Fact and Conclusions of Law, page 15-16.
The court did not find that Plaintiff Mother's reasoning as to the alleged
emotional benefits to the child as stated above override Dr. Pisa's opinion that the
child needs to have the constant benefit and guidance of both parents, which will
not be possible if the child relocates over nine hundred miles away. In fact, Dr. Pisa
testified that Plaintiff Mother's negative behavior towards Defendant Father may
thwart the child's relationship with Defendant Father. If permitted to relocate to
Florida, Plaintiff Mother will have even more of an opportunity to thwart Defendant
Father's relationship with the child, which is not emotionally healthy for the child. It
is telling that Plaintiff Mother feels she must relocate to Florida in order to
"preserve" her relationship with the child. From this statement, it would appear that
Plaintiff Mother's agenda is to diminish Defendant Father's relationship with the
child, and his role in the child's upbringing, while promoting her own role.
Plaintiff Mother's testimony as to any financial benefit to be gained for the child
by relocation was not persuasive. Plaintiff Mother testified that she intended to
work as a real estate agent's assistant in Florida with the intention of becoming a
24
part-time real estate agent. However, Plaintiff Mother does not have either a
Pennsylvania or Florida real estate license. N.T. June 14, 2016 at 115. Furthermore,
Plaintiff Mother offered no persuasive evidence that she sought a similar position in
Pennsylvania or that attempted to find any job in Pennsylvania which may provide a :
similar financial benefit. N.T. June 14, 2016 64-66, 115, 1?-4. In all relocation
cases, the burden is on the relocating parent to establish a significant improvement
in the quality of life for that parent and child. Tripathi, 2001 PA Super 322. In this
case, Plaintiff Mother did not prove there would be any significant improvement
either emotionally or financially for the child in Florida.
For the above stated reasons, Plaintiff Mother's allegation in paragraph k. of her
concise statement is without merit, contrary to the evidence, and should be
dismissed.
I. The Court erred in fashioning a custody order based upon improperly
speculating that Petitioner may not be willing to promote the child's relationship
with Respondent if the child were permitted to relocate."
There was evidence presented at the hearings that Plaintiff Mother engages in
behavior which portrays Defendant Father in a negative manner to the child. Trial
exhibit F-3 is a series of Facebook posts wherein Plaintiff Mother publicly comments
on Defendant Father's alleged negative behavior towards the child. In one, Plaintiff
Mother posts two pictures of the child with a new haircut and states: "Oh no! What
did your father do to the beautiful bleached blonde hair you cultivated all summer?"
The comment and photos are followed by a frowning face. Another Facebook photo
and post states: "The little man was upset that his Dad took his siblings and cousin
to the Eagles game without him, and surprised them with personalized shirts, as
well. So, Mom to the rescue. Results... a happy little man! Hopefully next year he
25
and I will get to a game at Lincoln Field." Yet another Facebook post is a quotation
which reads "Any woman can be a mother, but it takes a Bad-A** Mom to be a dad
too."
Trial exhibit F-4 is a list of negative comments which Defendant Father states
that Plaintiff Mother has made about him to the child. Number 11 on the list is a
comment which the child made to Defendant Father when the child asked
Defendant Father: "Mommy said you don't want to be with me. Is that true?"
Number 16 on the list is a comment made by the child where he said to Defendant
Father: "Mom told me you never want to take me extra time like Mom does." The
list also contains several instances where the child has made comments to
Defendant Father that indicate that Plaintiff Mother has discussed details of the
parties' marriage and divorce with the child to a degree which can be interpreted as
inappropriate.
Dr. Pisa testified that Plaintiff Mother's negative behavior towards Defendant
Father may thwart the child's relationship with Defendant Father and that it could
have a very negative psychological impact on the child. Furthermore, Dr. Pisa
stated on page 71 of his December 29, 2015 final report: "The examiner believes
that there is not a pattern of behavior exhibited by Mother or Father to indicate that
they are not supportive of [the child] maintaining a relationship with both parents.
However, Mother's proposed geographic relocation would clearly alter [the child's]
relationship with his dad."
Based on the evidence presented at the hearlnqs, the court did not "improperly
speculate" that Plaintiff Mother may not be willing to promote the child's
relationship with Defendant Father if the child were permitted to relocate. The court
26
weighed the evidence with each and every custody and relocation factor, and found
that Plaintiff Mother's prior behavior can be interpreted as being detrimental to
encouraging and supporting Defendant Father's parenting role. Dr. Pisa himself
stated in his report that even his belief that there is not a pattern of "behavior
exhibited by Mother or Father to indicate that they are not supportive of [the child]
maintaining a relationship with both parents" needs to be weighed against the fact
that the child's relocation to Florida would "clearly alter [the child's] relationship
with his dad."
For the above stated reasons, the Court.did not err or i m prop
erly speculate that Plaintiff Mother may not be willing to promote the child's
relationship with Defendant Father if the child were permitted to relocate to Florida.
Plaintiff Mother's allegation in paragraph I. of her concise statement is without
merit, contrary to the evidence, and should be dismissed.
m. "The Court erred in applying and adopting Dr. Pisa's conclusions that if the
child were to relocate to Florida, 'in his opinion the child's loss from being
separated from Father and Father's extended family would outweigh any benefit
gained by Mother in relocating."
On Julv 6, 2015, Plaintiff Mother filed a petition for a custody evaluator to be
appointed in this matter. On July 20, 2015, the court issued an order stating that
by agreement of the parties, Dr. Anthony Pisa would perform a custody evaluation,
the costs of which were to be paid by Plaintiff Mother. Dr. Pisa completed his
evaluation, and submitted a final report on December 29, 2015. On the first day of
hearings, February 17, 2016, Plaintiff Mother called Dr. Anthony Pisa as a witness,
Both parties stipulated to Dr. Pisa's qualifications as an expert in child custody
27
evaluation. Dr. Pisa's December 29, 2015 final report was marked as trial exhibit M-
1 and moved into evidence by Plaintiff Mother's counsel.
The court did not accept Dr. Pisa's recommendation as the sole reason to deny
Plaintiff Mother's request for relocation. The court read Dr. Pisa's report and
recommendation, assessed his testimony, and weighed both the report and the
testimony with the evidence presented at the hearings, as well as with the custody
and relocation factors. Neither party presented any persuasive evidence that Dr.
Pisa's evaluation and subsequent report were inherently flawed, biased, or
unreliable. Therefore, the court did not err in considering Dr. Pisa's conclusions that
if the child were to relocate to Florida, "in his opinion the child's loss from being
separated from Father and Father's extended family would outweigh any benefit
gained by Mother in relocating." Plaintiff Mother's allegation in paragraph m. of her
concise statement is without merit and should be dismissed.
n. "The Court failed to consider the uncontroverted and well-reasoned
preference of the child, which was to be able to relocate with Petitioner."
By agreement of the parties, the court did not interview the child as part of the
custody determination in this matter. At the conclusion of testimony on June 15,
2016, Defendant Father's counsel stated: "we're in agreement, Your Honor, that we
don't need [the child] as a witness to testify in this case." N.T. June 15, 2016 at
198.
'
The only instance of the child expressing a prefer.ence as to relocation comes
from the child's interview with Dr. Pisa as part of the custody evaluation. At the
February 17, 2016 hearing, Dr. Pisa agreed with Defendant Father's counsel's
statement that the child told Dr. Pisa he wanted to move to Florida because his
28
mother's hand hurts and she'll be better in Florida. However, when asked by
Defenda~t Father's counsel: "do you think an eight year old can really understand
what moving across the country means?", Dr. Pisa replied: "No". N .T. February 17,
. .
2016 at 159. Counsel asked: "So this coming in and telling you adamantly he
wanted to move to Florida is really his reading his mother in that respect, correct",
to which Dr. Pisa replied: "His internalization of his mother, yes." N.T. February 17,
2016 at 159. Defendant Father's counsel asked: "In fact, he clearly was prepped for:
that meeting, to talk about Florida?", to which Dr. Pisa replied: "He was prepared,
yes." N.T. February 17, 2016 at 159.
The weight to be accorded a child's preference varies with the age, maturity and
intelligence of that child, together with the reasons given for the preference.
Wheeler v. Mazur, 793 A.2d 929, 2002 PA Super 46. Although the court took the
child's stated preference in the custody evaluation into account when reaching a
decision in this matter, based on Dr. Pisa's testimony, the court did not find that
the child's preference was "uncontroverted and well-reasoned". According to Dr.
Pisa, the child had been "prepared" to state his preference in terms of Plaintiff
Mother's needs, not his own. Furthermore, the court also took into consideration
the child's young age (eight years old at the time of the hearings) when reaching a
decision.
For the above stated reasons, the court did not err or fail to consider the
preference of the child when reaching a decision in this matter. Plaintiff Mother's
allegation in paragraph n. of her concise statement is without merit and should
therefore be dismissed.
29
In the Court's July 26, 2016 Order, the court did not err or abuse its discretion in
denying Plaintiff Mother's· request for relocation, and for granting Defendant Father
two additional overnights of physical custody per month. Plaintiff Mother did not
prove that "a significant improvement in the quality of life for that parent and child"
would occur if she were permitted to move to Florida with the child. Tripathi. PA
Super 322 (2001). For the above reasons, the trial court respectfully requests that
Plaintiff Mother's appeal be dismissed and the court's July 26, 2016 order be
affirmed.
BY THE COURT:
/2~_fl<1J_
PATRICIA E. COONAHAN, J.
Copiespf the above Opinion sent
on 10//F/1~ to the following:
By Firs{-c1ass Mail:
Maria Testa, Esquire
Cheryl L. Young, Esquire
7)1~~
Secretary
30