P.M. v. L.B.M.

J-A11026-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
P.M. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
L.B.M.
Appellant No. 3421 EDA 2015
Appeal from the Order Entered November 10, 2015
In the Court of Common Pleas of Delaware County
Domestic Relations at No(s): 2000-014826
BEFORE: SHOGAN, J., MUNDY, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED June 24, 2016
Appellant, L.B.M. (Mother), appeals from the November 10, 20151
order granting the petition for modification of the existing custody order and
the petition for relocation filed by P.M. (Father), with respect to the parties’
son, D.M., born in January 1999. After careful review, we affirm.
The trial court set forth the extensive procedural and factual history of
this case in its November 10, 2015 order, which the testimonial and
documentary evidence supports. As such, we adopt it herein. See Trial
Court Order, 11/10/15, at 1-22.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
The trial court’s order is dated November 9, 2015, but was filed on
November 10, 2015.
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Relevant to this appeal, Father filed the respective petitions on April
14, 2015, in which he requested legal and primary physical custody of D.M.,
then age sixteen, and a sophomore in high school. D.M. resided all of his life
with Mother in Villanova, Delaware County, Pennsylvania. Father resided in
the State of California “on and off since 1999.” N.T., 8/26/15, at 62. At the
time of the subject proceedings, he resided in Bonita, California, a suburb of
San Diego, with his wife and her son.
The existing custody order, dated November 8, 2013, granted the
parties shared legal custody. The order granted Mother primary physical
custody, and Father partial physical custody for ten days following the end of
the school year, and for three consecutive weeks prior to the beginning of
the school year. The order also set forth Father’s periods of partial physical
custody during holidays.2
In his petition, Father alleged that D.M. “[wa]s being suspended and
presumably terminated from the Radnor School District for the balance of his
academic career,” as the result of an incident in February or March of 2015,
when D.M. gained unauthorized access to and harmed the Radnor School
District’s computer network. Petition for Relocation, 4/14/15, at ¶ 11;
Petition for Modification, 4/14/15, at ¶ 6; Trial Court Order, 11/10/15, at 8,
n 7. In addition, Father alleged that D.M. interfered with the Radnor High
____________________________________________
2
The Honorable Barry C. Dozor, who presided over the subject proceedings,
issued the November 8, 2013 custody order following an evidentiary trial.
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School computers in March 2014, resulting in the computers “being
confiscated by the Radnor Police[.]” Petition for Modification, 4/14/15, at ¶
5(b). Father further alleged, “Mother cannot control [D.M.,] and [D.M.] is
potentially very dangerous with his enhanced computer skills and knowledge
in an unsupervised environment[.]” Id. at ¶ 8.
A trial occurred on Father’s petitions on August 26, 2015, and
September 11, 2015, during which Father testified on his own behalf. In
addition, Father presented the testimony of his wife, G.M., and his sons from
his first marriage, Je.M., then age 29, and Ju.M., then age 31.3
Mother testified on her own behalf, and presented the testimony of
Michael Wilson, the Director of Government Relations and Outreach at the
Commonwealth Connections Academy, a cyber school where she enrolled
D.M. in March 2015. Further, Mother presented the testimony of George
Torrey, whom she employed in January 2014 to tutor D.M. in math. In lieu
of testimony, Mother introduced into evidence letters from H.C., the mother
of a friend of D.M., and C.R. and S.G., family friends.
The trial court interviewed D.M. in camera in the presence of counsel.
D.M. testified that he wanted to continue living with Mother. See N.T.,
9/11/15, at 155. Further, the trial court introduced into evidence the
____________________________________________
3
Father has four adult sons from his first marriage. Trial Court Order,
11/10/15, at 6, ¶ 10.
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psychological evaluation of D.M. performed by V. Richard Roeder, Ph.D., in
June 2015.
On November 10, 2015, the trial court granted the parties joint legal
custody,4 Father primary physical custody to begin no later than November
28, 2015, and Mother partial physical custody for seven weeks during the
summer. Further, the trial court ordered D.M. to attend a minimum of five
individual counseling and therapy sessions to assist him in his “relocation to
California, his self-esteem, or other personal issues.” Trial Court Order,
11/10/15, at 44.
On November 12, 2015, Mother timely filed a notice of appeal and a
concise statement of errors complained of on appeal pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i). The trial court filed
a Rule 1925(a) opinion on December 3, 2015.
On appeal, Mother presents the following issues for our review.
1. Whether the [t]rial [c]ourt erred and/or abused
its discretion in failing to consider the possible harm
to [D.M.] in uprooting him from the care pattern he
has known from a young age[?]
____________________________________________
4
We observe that the Child Custody Act (“Act”), 23 Pa.C.S.A. §§ 5321-5340,
does not use the term “joint legal custody.” See generally 23 Pa.C.S.A.
§ 5322(a). Here, we refer to the court’s legal custody award as “shared
legal custody.” Id.
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2. Whether the [t]rial [c]ourt erred and/or abused
its discretion in disregarding [D.M.]’s preference to
remain in [] Pennsylvania with his mother[?]
3. Whether the [t]rial [c]ourt erred and/or abused
its discretion in analyzing the factors enumerated in
[23] Pa.C.S.A. § 5328(a) and § 5337(h)(1)-(10) as
the [trial] court’s analysis, findings of fact and
conclusions of law are not supported by the
record[?]
Mother’s Brief at 9.
Mother argues that the trial court abused its discretion by (1) failing to
weigh the benefits to D.M. of relocating to California against “the possible
harm [he] would suffer by uprooting him from the care pattern he has
known from a young age”; (2) disregarding D.M.’s preference to remain in
Pennsylvania; and (3) failing to weigh the statutory best interest factors, 23
Pa.C.S.A. § 5328(a)(3) and (10), and the statutory relocation factors, 23
Pa.C.S.A. § 5337(h)(1), (2), and (7), in favor of Mother. Id. at 15.
Our scope and standard of review in custody matters 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
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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)
(emphasis added).
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).
Pursuant to the Act, in considering modification of an existing custody
order, “a court may modify a custody order to serve the best interest of the
child.” 23 Pa.C.S.A. § 5328(a). “The best-interests standard, decided on a
case-by-case basis, 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), quoting Arnold v.
Arnold, 847 A.2d 674, 677 (Pa. Super. 2004). Section 5328(a) provides
the following enumerated list of factors a trial court must consider.
§ 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
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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.
(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.
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(10) Which party is more likely to attend to the
daily physical, emotional, developmental,
educational and special needs of the child.
(11) The proximity of the residences of the
parties.
(12) Each party’s availability to care for the
child or ability to make appropriate child-care
arrangements.
(13) The level of conflict between the parties
and the willingness and ability of the parties to
cooperate with one another. A party’s effort to
protect a child from abuse by another party is
not evidence of unwillingness or inability to
cooperate with that party.
(14) The history of drug or alcohol abuse of a
party or member of a party’s household.
(15) The mental and physical condition of a
party or member of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S.A. § 5328(a).
In the instant case, as neither Father nor Mother was seeking to
relocate, but only D.M. would be moving a significant distance if Father’s
petition for modification was granted, this circumstance “does not per se
trigger [S]ection 5337 of the … Act.” D.K. v. S.P.K., 102 A.3d 467, 477
(Pa. Super. 2014). Nevertheless, we have held, “[t]rial courts should still
consider the relevant factors of [S]ection 5337(h) in their [S]ection 5328(a)
best interest analysis.” Id. at 477-478. We have explained, “several of the
relevant factors of [S]ection 5337(h) are encompassed, directly or implicitly,
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by the custody factors listed in [S]ection 5328(a). Any relevant [S]ection
5337(h) factor that is not expressly encompassed in [S]ection 5328(a)
should be considered by the trial court under the catchall provision of
[S]ection 5328(a)(16).” Id. at 478. The Section 5337(h) relocation factors
are as follows.
§ 5337. Relocation
(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.
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(6) Whether the relocation will enhance the
general quality of life for the party seeking the
relocation, including, but not limited to,
financial or emotional benefit or educational
opportunity.
(7) Whether the relocation will enhance the
general quality of life for the child, including,
but not limited to, financial or emotional
benefit or educational opportunity.
(8) The reasons and motivation of each party
for seeking or opposing the relocation.
(9) The present and past abuse committed by
a party or member of the party’s household
and whether there is a continued risk of harm
to the child or an abused party.
(10) Any other factor affecting the best
interest of the child.
23 Pa.C.S.A. § 5337(h).
In its November 10, 2015 order, the trial court recited and reviewed all
of the Section 5328(a) best interest factors and all of the Section 5337(h)
relocation factors. See Trial Court Order, 11/10/15, at 23-39. In its Rule
1925(a) opinion, the trial court addressed Mother’s asserted errors.
With respect to her assertion that the court failed to consider the
possible harm to D.M. by “uprooting him from the care pattern he has
known from a young age,” the court disagreed and explained in part as
follows.
Under this care pattern [D.M.] has repeatedly
engaged in a course of conduct that has led to
multiple disciplinary actions from his schools, and
ultimately led to his removal from Radnor School
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District as well as the filing of criminal charges
against him. This care pattern by Mother also
included the exclusion of Father from all major life
decisions and the alienation of Father and Father’s
family from [D.M.]. Mother has also repeatedly
exercised poor judgment. Mother has consistently
ignored the requirements of [shared] legal custody
by refusing to seek legally required [] approval [from
Father] before making decisions for [D.M.]. Mother
also, by her own admission, provided [D.M.] with
‘every single document’ generated in connection with
this custody case….
The estrangement of [D.M.] from Father, as a direct
result of Mother’s actions, has undoubtedly harmed
[D.M.], Father and [D.M.]’s relationship, and their
ability to communicate.
Trial Court Opinion, 12/3/15, at 30. With respect to the benefits to D.M. in
relocating to live with Father, the trial court found as follows.
These benefits are numerous and significant, and
include Father’s expertise in the field of computer
technology and his ability to mentor [D.M.] about
computer technology, the chance to live and learn in
California which is renowned for its central role in the
world of technology, [D.M.’s] opportunity to attend a
high school that would provide him with social
interaction, with both peers and teachers, as well as
more contact with members of Father’s family[.]
Id. at 29.
The trial court addressed D.M.’s preference to remain in Pennsylvania
with Mother and found, “that while [D.M.] would prefer to remain in
Pennsylvania with Mother[,] it is not in his best interests to do so. [D.M.]’s
best interests are better served by living in California with Father than to
continue living in Pennsylvania with Mother. Th[e trial c]ourt also
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determined that [D.M.]’s pattern of misconduct, and even criminal activity,
illustrated that his maturity, judgment, and decision-making skills are
questionable.” Id. at 24. The trial court concluded that D.M. moving to
California with Father was in D.M.’s best interests.
[T]h[e trial c]ourt determined that Mother was
unable to provide competent guidance in the area of
computers and ethics regarding computer systems
which th[e trial c]ourt determines is necessary. …
Th[e trial c]ourt notes that Mother herself continued
to testify that she was not technologically savvy and
the record is well developed that Father is more than
competent in this area to assist [D.M.]. Father …
due to his background in the field of computer
technology, is both willing and able to provide [D.M.]
with continuing guidance, education, and supervision
about not only computer technology but also the
responsibilities that come along w[ith] using
technology. Father is also uniquely capable of
helping [D.M.] because he has had custody of the
four older boys who have had similar issues,
including an addiction to computers/gaming. All of
the older boys are now flourishing and enjoy a close
relationship with their Father and Father’s family
despite the circumstances that they experienced.
Id. at 26.
Finally, with respect to Mother’s assertion that the trial court failed to
properly weigh the Section 5328(a) best interest factors and the Section
5337(h) relocation factors, the trial court disagreed. Specifically, the trial
court emphasized its thorough consideration of all of the requisite statutory
factors in light of the testimonial and documentary evidence, as well as its
credibility and weight of the evidence findings against Mother, which fall
within the sole province of the trial court. See A.V. v. S.T., 87 A.3d 818,
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820 (Pa. Super. 2014) (citations omitted) (stating, in part, that “on issues of
credibility and weight of the evidence, we defer to the findings of the trial
[court.] … The parties cannot dictate the amount of weight the trial court
places on evidence”).
Upon review, we conclude that the trial court carefully and thoroughly
considered the best interests of D.M. in fashioning its custody award. The
record overwhelmingly supports the trial court’s decision, based in large
part, on finding that D.M. has a “history of misconduct with technology while
attending various schools in Pennsylvania. Th[e trial c]ourt heard testimony
of four (4) separate incidents during which [D.M.] misused school
technology. All of these incidents led to punishment for [D.M.], and
ultimately led to, contributed to, and were cause for his withdrawal from
Radnor School District.” Trial Court Opinion, 12/3/15, at 9. As such, we
discern no abuse of discretion.
Based on the foregoing, we conclude that the entirety of the trial court
opinions comprehensively expound on Mother’s issues. Accordingly, we
adopt and incorporate the trial court’s November 10, 2015 order and
December 3, 2015 opinion with this memorandum in affirming the November
10, 2015 custody order.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/24/2016
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Circulated 06/16/2016 03:02 PM
IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
P,M,
Plaintiff
v. No.: 2000-014826
Defendant
IN CUSTODY
Francis Urso, Esquire for Plaintiff
Jeanne Bakker, Esquire for Defendant
FINAL CUSTODY QRDER
rif
AND NOW, to wit, this 7 day of November 2015, upon consideration of the
Petition to Modify Custody and Petition for Relocation both flied by Father onAprll 14, 2015,
and the Trial held on August 26, 2015 and September 11, 2015, it Is hereby ORDERED and
DECREED as follows:
A. Procedural History
1. Plalntlff/Father, P, M, , hereinafter "Father," has remarried and resides with
his wife and wife's child at Rawhide Court, Bonita, CA, the suburbs of San Diego,
California.
2, Defendant/Mother, L B. M. ., hereinafter "Mother," remains slngle,
resides with the parties' son D. M. , at . Chandler Lane, Vlllanova, PA
19085.
3. The parties' only child is D,,/'fl,. , presently 16 years of age, and was born on
January 12, 1999. D:,N\ ls currently In the 11th grade and Is currently enro'led In the
cyber school, the Commonwealth Connections Academy. ·
4. The parties have had several previous custody orders In this case, all of which have
always provided each party with Joint Legal Custody. Additlonally, this Court notes that
Mother has always had primary custody and Father has always had partial physical
custody which consisted of time during the school year and a significant portion of time
Page 1 of 44
during the summer months as for most of Minor Child's life Father has lived In the State
of California.
5. The first Temporary Custody Order was Issued on December 4, 2002, signed by The
Honorable Judge Fitzpatrick, and provided Mother and Father Joint Legal Custody,
Mother Primary Physical Custody, and Father Partial Physical Custody. Additionally,
Father was given eight (8) weeks of custody of Minor Chlld during the summer and one
(1) week of custody of Minor Child during Spring Break.
6. On September 4, 2012 a Petition to Modify Existing Custody Order was filed.'
7. The parties were before the Master and on December 4, 2012 a Temporary Custody
Order was signed by The Honorable Judge Fitzpatrick. The Temporary Custody Order
provlded Mother and Father Joint Legal Custody, Mother Prlmarv Physical Custody, and
Father Partial Physical Custody. Additionally, the Temporary Custody Order stated that
the December 4, 2002 Temporary Custody Order remained In full force and effect.
8. This Court notes that Mother flied an immediate Motion to Modify this Temporary
Custody Order seel- you know in we started this tl1ing in September - thls game
M
server in like September or November and in January we started
getting - you know, we had to klck people off our game server
because they were just causing problems. They were, you know,
Page 14 of 31
being mean to people I guess. And they got a little disgruntled at
being kicked off so they started basically just taking down our
server with, you know, Internet - they were llke flooding our
internet basically.
So I was trying to make like protection with my computer. I was
trying to block out these attacks so they wouldn't affect me
because I was losing players because, you know, the server would
be down at times.
So I was doing these attacks to myself, so I could, you know,
emulate the same thing and try to make rules in my router to block
them. And the way it basically works Is I had bought a server In the
Cloud that has a much higher bandwlth than what I have at home.
So it will basically send tons of data to my computer at home and
that would - you know, that would be what they were dolng. It's
called load testing.
So I was at school when I was throwing these attacks. I was using
a VPN so the dedicated server In the Cloud would think rm at
home doing these attacks so they were going to my home Instead
of the school. And I couldn't do it after school because there were
people on at that time. You know, I wouldn't want to just kick
people off. During school hours there's barely anyone on them. And
I - there - I think there Is either a misconfiguration what I was
using in the IPad or It was just the app was crashing and it would
hit the school.
So if I was correctly using my VPN my home computer would look
like it was llke telling the server to attack it. And if it was
mlscontlqured, like it was w!th mine, it would look like it was
coming from the school. The school was telling the dedicated
server in the Cloud to attack it. .. From the school I created a path to
my computer.
[N.T., September 11, 2015, pg. 145-149].
Minor Child submitted a statement to the Radnor Township Police Department
regarding the 2015 Incident on March 13, 2015. The statement reads,
At school, I shared Open VPN Software with other students on the
iPads which allowed them to circumvent the filter. However, I
personally used this for "Remote Desktop11 and being able to
remotely manage game servers. I did not attack the school In any
Page 15 of 31
way, shape, or form. All technology used by me was only supposed
to be used for m game servers that I maintain and support outside
of the school. I harbor no malicious Intent for interfering with
Radnor High School.
See Plaintiff's Exhibit, P-9.
Minor Child stated \\They [the school district and the police} took It too seriously,"
when asked about the dlsdpllnarv Incident that led to his removal from Radnor High
School. See Court's Exhibit, C-1, page 4. Additionally Dr. Roeder's evaluation reports
Minor Chlld, "rnlnlmlzed past and present incidents," as well as \'minimized his
culpabillty for the School District Incident this year", See Court's Exhibit, C-1, page 4.
This Court notes that in his testimony Minor Child states that he was tiying to
test his system while in the interviews of Minor Child attached to the Affidavit of
Probable Cause, Minor Child '\continually stated that he did not "intentlonally" cause the
attacks however could not rationally explain how the attacks are taking place. Minor
Child continued stating he didn't do anything wrong and gave a written statement."
Minor Child informed this Court that he simply wanted to test how the hack works vs.
wanting to test It at school vs. wanting to test it on his own systems, Inconsistent all
around. See Plaintiff's Exhibit, PH9. Dr. Roeder stated that overall Minor Child
"rnlnlmlzed past and present Incidents." Additionally the report states that Minor Child,
"Indicated that his behavior In elementary school and middle school were "pranks," and
that his violations of the school computer system this year were "mlstakes," He seemed
to have little remorse, but did express regret that he now could not go on school
property for efterschool activities or any other reason." See Court's Exhibit, Cm 1, pages
Page 16 of 31
Dr. Roeder's report also states that when asked about the 2015 Incident Minor
Child explained that he, "did not realize that he would "get expelled from school" for his
actions." See Court's Exhibit, CM1, page 5. Despite all the evidence and testimony to the
contrary, Mother also stated, regarding Minor Child's multiple dlsclpllnary Incidents and
his use of computers, "I don't think he hacked." [N.T., September 11, 2015, pg. 19].
Father testified that he was not aware of the 2015 incident and the ensuing
punishment until Mother frantically called him to inform Father that Minor Child has
been placed on a ten (10) day suspension from school. Father at this point was
proceeding without l54 A.3d 950, 953 (Pa.Super.2012). In
reviewing a Trial court's Final Custody order the Appellate Court "cannot make
Independent factual determinations, we must accept the findings of the trial court that
are supported by the evidence." Id Therefore, an Appellate Court will "defer to the trial
judge regarding credibility and the weight of the evidence." Id A Trial Court's Final
Order may be rejected by the Appellate Court, "but only if they involve an error of law
or are unreasonable in light of its factual findings." Id See also J.R.M. v• .J.E.A.1 33
A.3d 647 (Pa.Super.2011); Hanson v,, Hanson, 878 A.2d 127, 129 (Pa.Super.2005);
Landis v. Landis, 869 A.2d 1003, 1011 (Pa.Super.2005). The Appellate Courts defer to
a Trial Court on Issues of credibility and weight of the evidence and testimony because
Page 22 of 31
lt ls the Trial Court Judge who has had the opportunltv to observe the proceedings and
demeanor of the witnesses. R,M.G., Jr. v. F.M.G,, 986 A.2d 1234, 1237
(Pa.Super.2009). 'The parties cannot dictate the amount of weight the trial court places
on evidence. Rather, the paramount concern of the trial court Is the best Interest of the
child. Appellate Interference Is unwarranted If the trial court's consideration of the best
interest of the child was careful and thorouph, and we are unable to find any abuse of
discretion. Id. The test Is whether the evidence of record supports the trial court's
conclusions." Ketterer v. Seffertr 902 A.2d 533, 539 (Pa.Super.2006); W.C.F. v.
M.G., 2015 Pa. Super. 102, 115 A.3d 323, 327 (2015).
In Commonwealth v. Widmer, 560 Pa. 308, 322, 744A.2d 745,753 (2000),
the Pennsylvanla Supreme Court defined "abuse of discretion" as follows:
The term 'discretion' Imports the exercise of judgment, wisdom,
and skill so as to reach as dispassionate conclusion, with the
framework of the law, and is not exercised for the purpose of
giving effect to the will of the judge. Discretion must be exercised
on the foundation of reason, as opposed to prejudice, personal
motivations, caprice or arbitrary actions. Discretion is abused when
the course pursued represents not merely an error of judgment,
but where the judgment is manifestly unreasonable or where the
law Is not applied or where the record shows that the action is a
result of partiality, prejudice, blas or Ill will.
Widme9 560 Pa. at 322, 744 A.2d at 753 (quoting Coker v. S.M,, Flinger Co.I' Inc.,
533 Pa. 441, 447, 625 A.2d 1181, 1184-85 (1993}); Custer v.. Cochran, 933 A.2d
1050, 1053-54 (Pa.Super.2007)(en bane); Mescanti v. Mescanti, 2008 Pa. Super. 201,
956 A.2d 10171 1019 (2008).
Page 23 of 31
This Court has clearly, and thoroughly, weighed all of the necessary factors ln
both 23 Pa. C.S.A. Section 5328 and 23 Pa. C.S.A. Section 5337 to determine which
party should have Primary Cust_ody of Minor Child as well as whether Minor Child should
relocate to California. This Court observed the demeanor of the witnesses and weighed
the credibility of their testimony and evidence. There was no abuse of discretion and
the Appellate Court should affirm the Trial Court's Final Custody Order.
II. THE TRIAL COURT DID NOT ERR AND/OR ABUSE ITS DISCRETION
REGARDING THE CHILD'S PREFERENCE TO REMAIN IN
PENNSYLVANIA WITH HIS MOTHER.
Appellant argues that this Court erred by disregarding Minor Child's preference to
remain in Pennsylvania with Mother lnstead of relocating to California to llve with
Father. This Court did not.disregard Minor Chlld's preference to remain with Mother in
Pennsylvania. This Court In fact acknowledged and discussed Minor Child's preference in
lts discussion of both 23 Pa. C.S.A. Section 5328(a)(7) and Section 5337{h)(4). This
Court recognized that while Minor Child would prefer to remain In Pennsylvania with
Mother it is not in his best interests to do so. Minor Child's best Interests are better
served by living In Callfornla with Father than to continue living In Pennsylvania with
Mother, This Court also determined that Minor Child's pattern of misconduct, and even
criminal activity, Illustrated that his maturity, judgment, and decision-making skills are
questionable.
"While the express wishes of a child Jn a custody action are not controlHng, they
constitute an Important factor that must be considered carefully by the trial court when
determining the child's best Interest/I McMi!len v. McMillen, 529 Pa. 198, 602 A.2d
Page 24 of 31
845 (1992); Graham v. Graham, 2002 Pa. Super. 64, ~ 20, 794 A.2d 912, 918 (2002).
In reviewing the preference of a child In a custody case, the child's preference must be
based on good reasons. E.A,l~1 443 Pa.Super. at 590, 662 A.2d at 1117-18. This
preference must also be based on the child's maturity and intelligence. However, the
weight to be given the child's preference can best be determined by the judge before
whom the child appears. Cardamone, 442 Pa.Super. at 278, 659 A.2d at 583; Swope
v. Swope, 455 Pa. Super. 587, 592, 689 A.2d 264, 266 (1997).
If a Court is not persuaded by the chlld's preference because It would not be in
the child's best interests, the child's preference is simply not controlling. Elll11gsen v.
Magsamen, 337 Pa.Super. 14, 486 A.2d 456 (1984), Altus-Baumhor v. Baumhor,
407 Pa. Super. 276., 281, 595 A.2d 11471 1150 (1991).
Minor Child's preference to stay in Pennsylvania with Mother Is not in hls best
Interests for numerous reasons and therefore the Court was not controlled by the
preference of Minor Cl1lld. Minor Child's frequent discipline at school ls of great cause
for concern. Minor Child's repeated disciplinary Incidents culminated ln Minor Child
being removed from Radnor High School and banned from re-enrolllng In the school or
entering the premises for the foreseeable future. Minor Child has obviously not been
able to change hls patterns of behavior and avoid misusing computer equipment while
under Mother's care. Minor Child has also faced criminal charges for hls actions with
school-owned computer equipment while in the care of Mother.
Due to his disciplinary issues Minor Child is unable to attend a physical school In
Pennsylvania and has been attending an onllne school. Minor Child testified that he
Page 25 of 31
misses the ability to Interact with other students and teachers and attend school and
extracurricular functions. Mother testlfied that she acts as a "!earning coach" for Minor
Child's onllne schooling and her duties Include signing off on Minor Childs attendance
and speaking with his teachers. Mother additionally stated that she currently has "total
control" of Minor Child's schooling. [N.T., August 26 2015, p. 309]. Which is disturbing
to this Court as the prior Incidents of computer hacking all occurred under the direct ·
supervision of Mother .
In rendering the issue of custody and relocatlon, this Court determined that
Mother was unable to provide competent guidance In the area of computers and ethics
regarding computers systems which this Court determines Is necessary. This Court
determines that Mother, herself, believed she needed outside help as she hired Minor
Child a "mentor" in the area of computer technology. This Court notes that Mother
herself continued to testify that she was not technologically savvy and the record Is well
developed that Father Is more than competent in this area to assist Minor Child. Father
however, due to his background In the field of computer technoloqy, Is both willing and
able to provide Minor Child with continuing guidance, educatlon, and supervision about
not only computer technology but also the responsibilities that come al.ong w/ using
technology. Father ls also uniquely capable of helping Minor Child because he has had
custody of the four older boys who have had similar tssues, Including an addlctlon to
computers/gaming. All of the older boys are now flourishing and enjoy a close
relationship with their Father and Father's family despite the circumstances that they
experienced.
Page 26 of 3:t
Mother's actions have also been directly contrary to Ml nor Child's best Interests.
Mother testified that she has repeatedly scheduled camps and actlvitles during Father's
scheduled summer visit.ation with Minor Child. Mother has purposefully kept Father from
enjoying the full amount of vlsltatlon with Minor Child provided by past custody orders
for years. Mother has conslstently thwarted the relationship between Father and Minor
Child by not allowing Father to have his full visltatlon with Minor Child, as well as
providing Minor Child with Court Documents that have undoubtedly negatively shaped
and Influenced the way ln which Minor Child views Father. This Court notes that Minor
Child Informed the Court that his views about Father had changed based upon Mother's
egregious actions of providing Minor Child with the Court documents. Minor Child stated
that he was upset by some of the thlngs that he read In the court documents provided
to him by Mother. Whe~ asked what specifically had upset Minor Child he stated, "Well,
It was actually something In the psychological evaluation that Isaw. You know, my dad
describing me in an unflalterlng way to the psychologist." [N.T., September 11, 2015,
pg. 139].
Mother testified that she purposefully scheduled Minor Child's summer activities
during Father's custodial periods and stated that she did so because she felt Father was
unable to care for Minor Child due to his work schedule. This Court notes that while
Mother has repeatedly questioned Father's overall ability to care for Minor Child she has
never filed any petition to remove him from having joint legal custody, nor Is this Court
aware of any ongoing or past Children and Youth Investigations regarding Father and
Minor Child.
Page 27 of 31
Therefore, this Court did not err In determining that Minor Child's preference was
not ln his best Interests.
XII. .THE TRIAL COURT DID NOT ERR AND/OR ABUSE ITS DISCRETION
BY FAILING TO CONSIDER THE POSSIBLE HARM TO THE CHILD IN
UPROOTING HIM FROM THE CARE PAITERN HE HAS KNOWN FROM
A YOUNG AGE.
Appellant's next allegation of error by thls Court is that this Court erred by not
considering the possible harm to Minor Child that could occur as a result of his
relocation to California. This Court notes that analyzing, "the possible harm to the chlld
ln uprooting hlm from the care pattern he has known from a young agen is not one of
the factors that a court must analyze when deciding the relocation of a child or the
prlmary custody of a child under 23 Pa.C.S.A, Section 5337 or 23 Pa.C.S.A.
Section 5328, However this Court did consider the possible harm to Minor Child that
could stem from uprooting him from the care pattern he has known from a young age.
This consideration was paramount in several factors including, but not limited to, this
Court's analysis of whether, "relocation will enhance the general quaHty of life or the
ch/kl, lncluding, but not limited to, financial or emotional benefit or educat1onal
opportunity." Section 5337(h)(7), "the nature, quality, extent of involvement and
duration of the chrld's relationship with the party proposing to relocate and with the
non-relocatlnq party, sibllngs and other significant persons in the child's life." 23
Pa.c.s.A. Section 5337(h)(1), "each party's avallability to care for the child or abillty
to make appropriate chlld-care arrangements." 23 Pa.c.s.A. Section 5328(a) (12),
"which party Is more likely to attend to the physical, emotional, developmental,
Page 28 of 31
educational and special needs of the chlld." 23 Pa.C.S.A. Section 5328(a) (10),
"Which party ls more likely to maintain a loving, stable, consistent and nurturing
relationship with the chHd adequate for the chlld's emotional needs." 23 Pa.c.s.A.
Section 5328(a) (9), "The need for stabilfty and continuity In the child's education,
family life and community life," must be evaluated. 23 Pa.C.S.A, Section 5328(a)
(4), and "the parental duties performed by each party on behalf of the child.'' 23
Pa.C.S.A. § 5328(a) (3). This Court analyzed all of these factors and determined that
they weighed In favor of Father having Primary Physical Custody and Minor Child
relocating to Caltfornta to live with Father.
This Court also considered the benefits that Minor Child will enjoy from his
relocation to California to llve with Father. These benefits are numerous and significant,
and Include Father's expertise in the field of computer technology and his ability to
mentor Minor Chlld about computer technology, the chance to live and learn in
California which is renowned for Its central role In the world of technology, Minor Child's
opportunity to attend a high school that would provide him with social lnteractlon, with
both peers and teachers, as well as more contact with members of Father's family.
Minor Chlld will also be able to continue his ardent, fervent, passionate participation in
both Boy Scouts and Ultimate Frisbee upon hls move to live with Father as both of
these activities have organizations based in Callfornia. Father's steadfastly and credibly
testified that Minor Child would have unfettered access with his only sister. This Court
found that the number of possible benefits overwhelming exceeded any possible
repercussions Minor Child could experience from this move.
Page 29 of 31
Furthermore, this Court considered whether Minor Chlld's bestlnterests would be
served If he were allowed to remain in the same earn pattern he has known from a
young age. Under this care pattern Minor Child has repeatedly engaged In a course of
conduct that has led to multiple disciplinary actions from his schools, and ultimately led
to his removal from Radnor School District as well as the filing of criminal charges
against him. This care pattern by Mother also Included the exclusion of Father from all
major life decisions and the allenatlon of Father and Father's family from Minor Child.
Mother has also repeatedly exercised poor judgment. Mother has consistently Ignored
the requirements of joint legal custody by refusing to seek legally required Father's
approval before making decisions for Minor Child. Mother also, by her own admission,
provided Minor Child with "every slngle document" generated In connection with this
custody case, Including all court documents, pleadings, communications and letters
among the lawyers and courts, all custody orders, and psychological reports prepared
for trial, pre-trial statements, and Father's petitions.
The estrangement of Minor Child from Father, as a direct result of Mother's
actions, has undoubtedly harmed Minor Child, Father and Minor Child's relationship, and
their abllity to communicate.
The record of this case, Including the testimony heard at the Trial held on August
26, 2015 and September 11, 2015, fully supports this Court's analysis, findings of fact,
and conclusions of law for both the factors enumerated In 23 Pa. C.S.A. Section 5328 as
well as the factors enumerated in 23 Pa. C.S.A. Section 5337(h)(1)-(10).
Page 30 of 31
The facts and circumstances provided in this case, and summarized above,
provided this Court with sufficient evidence that Father should have Prlmary Custody of
Minor Child and that Minor Child should relocate to California to live with Father,
CONCLUSIQN:
For all of the foregoing reasons, the Trlal Court's Final Custody Order, which
granted Father Primary Physical Custody, Mother Partial Physical Custody, and both .
parties Joint Legal Custody, dated November 9, 2015, shzuld b ~e ./,
. B HE COU : ·
Page 31 of 31