S.C. v. J.C.

J-A28045-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
S.C., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
J.C.,
Appellee No. 1427 EDA 2014
Appeal from the Order entered April 2, 2014,
in the Court of Common Pleas of Bucks County,
Domestic Relations, at No(s): A06-07-60959-C
BEFORE: GANTMAN, P.J., WECHT, and JENKINS, JJ.
MEMORANDUM BY JENKINS, J.: FILED MARCH 10, 2015
J.C. (“Mother”) appeals from the order of the trial court entered on
April 2, 2014, granting S.C.’s (“Father”) petition for primary custody of their
three minor children, H.C. (a male born in March of 1998), D.C. (a male
born in February of 2000), and J.C. (a female born in July of 2002)
(collectively, the “Children”). The order awarded Father primary physical
custody commencing after the current school year ends in June of 2014, and
directed that Mother shall have partial physical custody every other
weekend, and five weeks of custody during the summer. We affirm.
This Court previously set forth the following factual background and
procedural history of this case in reviewing a prior appeal, as follows.
. . . [Mother] and Father were married for seven years and
were divorced in 2004. Agreements of the parties concerning
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the divorce and the custody of the children were entered as
court orders in Montgomery County, Pennsylvania.
Following the divorce, Mother moved with the Children to
Warminster, Bucks County, Pennsylvania, and Father purchased
a home in Coatesville, Chester County, Pennsylvania. In April
2008, Father filed a petition for modification of the custody order
in Montgomery County, seeking primary custody of the Children.
Following the transfer of the action to Bucks County, a custody
conference was held on September 17, 2009. The trial court
held hearings on November 10, and December 19, 2009, and on
February 4, March 10, July 1, and August 11, 2010. The trial
court entered an order on August 11, 2010, denying Father’s
petition to modify custody of the Children. Mother retained
primary physical custody of the Children, and Father retained
partial physical custody.
S.J.C. v. J.J.C., 2576 EDA 2010 (filed April 25, 2011) (unpublished
memorandum). Father filed a timely notice of appeal on September 10,
2010. This Court affirmed the trial court’s August 11, 2010 order on April
25, 2011.1
On October 18, 2012, Father filed a petition for modification of
custody, seeking primary physical custody of the Children. On September
11, 2013, November 13, 2013, and April 2, 2014, the trial court conducted
hearings on Father’s petition for modification.
At the hearing on September 11, 2013, Father presented the
testimony of his current wife, A.C., (“Stepmother”), and testified on his own
behalf. On November 13, 2013, Father completed his own testimony.
Mother also testified on her own behalf. Finally, Father presented the
1
The trial court entered its copy of this Court’s Memorandum decision on its
docket on June 24, 2011.
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testimony of Diana Rosenstein, Ph.D., as an expert in psychology who
conducted an evaluation of the family. The trial court admitted Dr.
Rosenstein’s expert report into evidence as Exhibit M-3. N.T., 11/13/13, at
79-80.
At the hearing on April 2, 2014, Mother testified on her own behalf.
Mother also presented the testimony of her father, D.A. Father presented
the testimony of Stepmother, and testified on his own behalf. The trial court
then heard the testimony of the three children, in camera, with counsel for
the parties present and questioning the children.
The trial court set forth its factual findings in the May 19, 2014
opinion, which we incorporate herein. Importantly, the trial court found
that, in August of 2012, H.C. moved to live with Father and Stepmother in
Father’s home in Royersford, Montgomery County, Pennsylvania, pursuant to
an agreement between Mother and Father. Trial Court Opinion, 5/19/14, at
3. Moreover, the trial court found that Mother testified that she voluntarily
transferred physical custody of H.C. to Father in August of 2012 because of
H.C.’s aberrant and bizarre behavior. Id. at 5.
The trial court found that, under the agreement, Father has primary
physical custody of H.C., as Mother voluntarily relinquished custody of H.C.,
and Father and Mother have physical custody of the two younger children,
D.C. and J.C. on alternate weekends, so Father has physical custody of all
three children on alternate weekends. Id. at 4-5. Father testified that,
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although he currently resided in Royersford, he was moving the family into a
larger, four-bedroom home in Coatesville, Chester County, Pennsylvania.
Id. at 4. Father also testified that Mother’s home in Warminster was
approximately fifty-one miles from his home in Coatesville. Id. at 4.
Additionally, Father testified that he has a two-year-old son with A.C., who
lives with Father and A.C. Id. at 5. Moreover, Mother testified that her
entire family, with the exception of one sister, lives near her home in
Warminster. Id.
On April 2, 2014, the trial court entered its order, in court, on a
transcribed record spanning 25 pages. The trial court awarded Father
primary physical custody of the Children commencing after the end of the
school year in June of 2014, and directed that Mother shall have partial
physical custody, in accordance with a schedule that would differ in the
summers of 2014 and 2015.
On April 22, 2014, Mother filed a petition for reconsideration of the
custody order. On April 28, 2014, the trial court denied the petition for
reconsideration. On April 30, 2014, Mother filed a notice of appeal, along
with a concise statement of errors complained of on appeal, pursuant to
Pa.R.A.P. 1925(a)(2)(i) and (b). Mother filed a petition to proceed in forma
pauperis on that same date. The trial court granted the petition on May 6,
2014. The trial court explained that, because of the in forma pauperis
designation, and because the matter was designated as a Children’s Fast
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Track appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i), it filed its opinion on May
19, 2014, without the benefit of the notes of testimony. See Opinion,
5/19/14, at 2.2
On appeal, Mother raises four issues, as follows:
I. Whether the Trial Court committed an error of law and/or
abused its discretion by ignoring the finding and opinions of the
mutually agreed upon expert?
II. Whether the Trial Court committed an error of law and/or
abused its discretion by not more fully probing the impact that
this custody order will have on the two younger children by such
a drastic change in custody?
III. Whether the Trial Court committed an error of law and/or
abused its discretion by failing to characterize this custody order
change as a relocation subject to certain procedural
requirements under Pennsylvania law[?]
IV. Whether the Trial Court committed an error of law and/or
abused its discretion by failing to provide for the usual summer
share of custody for the summer of 2014, particularly given the
testimony of the two older children and their pending
employment[?]
Mother’s Brief, at 4.
Initially, we observe that, as the custody trial in this matter was held
on September 11, 2013, November 13, 2013, and April 2, 2014, the Child
2
We note that this Court recently held, in R.L.P. v. R.F.M., 2015 Pa. Super.
29, 2015 Pa. Super. LEXIS 43 (Pa. Super. 2015), that, to be sufficiently
specific to be enforced, an order of custody must be entered as a separate
written order, or as a separate section of a written opinion. “If [a custody
order] is entered as a separate section of an opinion, it must be designated
as such by the use of the heading entitled ‘Order’. A custody order may not
be entered as a transcript of any trial or hearing.” Although the order is set
forth on a transcript rather than in a separate written order, as the trial
court entered its order and opinion in this matter before this Court entered
the opinion in R.L.P., we will review the appeal.
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Custody Act, (“the Act”), 23 Pa.C.S.A. §§ 5321 to 5340, is applicable.
C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa. Super. 2012) (holding that, if the
custody evidentiary proceeding commences on or after the effective date of
the Act, i.e., January 24, 2011, the provisions of the Act apply).
In custody cases, our standard of review is as follows:
In reviewing a custody order, our scope is of the broadest type
and our standard is abuse of discretion. We must accept
findings of the trial court that are supported by competent
evidence of record, as our role does not include making
independent factual determinations. In addition, with regard to
issues of credibility and weight of the evidence, we must defer to
the presiding trial judge who viewed and assessed the witnesses
first-hand. However, we are not bound by the trial court’s
deductions or inferences from its factual findings. Ultimately,
the test is whether the trial court’s conclusions are unreasonable
as shown by the evidence of record. We may reject the
conclusions of the trial court only if they involve an error of law,
or are unreasonable in light of the sustainable findings of the
trial court.
Id. at 443 (citation omitted).
We have stated:
[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)).
In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), we
stated the following regarding an abuse of discretion standard.
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Although we are given a broad power of review, we are
constrained by an abuse of discretion standard when evaluating
the court’s order. An abuse of discretion is not merely an error
of judgment, but if the court’s judgment is manifestly
unreasonable as shown by the evidence of record, discretion is
abused. An abuse of discretion is also made out where it
appears from a review of the record that there is no evidence to
support the court’s findings or that there is a capricious disbelief
of evidence.
Id. at 18-19 (quotation and citations omitted).
With any custody case decided under the Act, the paramount concern
is the best interests of the child. See 23 Pa.C.S.A. §§ 5328, 5338. Section
5338 of the Act provides that, upon petition, a trial court may modify a
custody order if it serves the best interests of the child. 23 Pa.C.S.A.
§ 5338. Section 5328(a) of the Act, 23 Pa.C.S.A. § 5328(a), sets forth the
best interest factors that the trial court must consider. See E.D. v. M.P., 33
A.3d 73, 80-81, n.2 (Pa. Super. 2011).
Section 5323 of the Act provides for the following types of awards:
(a) Types of award.—After considering the factors set forth in
section 5328 (relating to factors to consider when awarding
custody), the court may award any of the following types of
custody if it in the best interest of the child:
(1) Shared physical custody.
(2) Primary physical custody.
(3) Partial physical custody.
(4) Sole physical custody.
(5) Supervised physical custody.
(6) Shared legal custody.
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(7) Sole legal custody.
23 Pa.C.S.A. § 5323.
Section 5328(a) of the Act provides as follows.
§ 5328. Factors to consider when awarding custody
(a) Factors.—In ordering any form of custody, the court shall
determine the best interest of the child by considering all
relevant factors, giving weighted consideration to those factors
which affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and another
party.
(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
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reasonable safety measures are necessary to protect the child
from harm.
(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child adequate for
the child’s emotional needs.
(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and special
needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability
to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with one
another. A party’s effort to protect a child from abuse by
another party is not evidence of unwillingness or inability to
cooperate with that party.
(14) The history of drug or alcohol abuse of a party or
member of a party’s household.
(15) The mental and physical condition of a party or
member of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S.A. § 5328.3
In A.V. v. S.T., 87 A.3d 818 (Pa. Super. 2014), this Court explained
the following:
3
Effective January 1, 2014, the statute was amended to include an
additional factor at 23 Pa.C.S.A. § 5328(a)(2.1) (providing for consideration
of child abuse and involvement with child protective services). Although
applicable at the time of the custody trial on April 2, 2014, there was no
evidence that would have required the trial court’s consideration of this
factor.
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“All of the factors listed in section 5328(a) are required to be
considered by the trial court when entering a custody order.”
J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis
in original). Section 5337(h) requires courts to consider all
relocation factors. E.D., supra at 81. The record must be clear
on appeal that the trial court considered all the factors. Id.
Section 5323(d) provides that a trial court “shall delineate
the reasons for its decision on the record or in open court or in a
written opinion or order.” 23 Pa.C.S.A. 5323(d). Additionally,
“section 5323(d) requires the trial court to set forth its
mandatory assessment of the sixteen [Section 5328 custody]
factors prior to the deadline by which a litigant must file a notice
of appeal.” C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013),
appeal denied, ___ Pa. ___, 70 A.3d 808 (2013). Section
5323(d) applies to cases involving custody and relocation.
A.M.S. v. M.R.C., 70 A.3d 830, 835 (Pa. Super. 2013).
In expressing the reasons for its decision, “there is no
required amount of detail for the trial court’s explanation; all
that is required is that the enumerated factors are considered
and that the custody decision is based on those considerations.”
M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013), appeal
denied, ___ Pa. ___, 68 A.3d 909 (2013). A court’s explanation
of reasons for its decision, which adequately addresses the
relevant factors, complies with Section 5323(d). Id.
A.V., 87 A.3d at 822-23.
With regard to the section 5328(a) factors, the trial court found the
following.
This is a close case, again. It hasn’t changed at all. I have to do
what’s right for these three children. Now, there are so many
factors involved I could snap my fingers and enter an Order
today, but that doesn’t consider the realities of the present
moment. I will never, absent extraordinary circumstances of
abuse and neglect, take a child out of school in midstream and
send them to live with the other parent. I won’t do it today.
The time is not ripe, but at the end of the school year it will be.
And Ms. Murphy [Father’s counsel] makes a very strong
argument. These kids have been through a lot during this
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dispute. In April of 2014, I don’t want them to move. But in
June, they will.
How could we insure that a change of custody will continue the
relationship with Mother? We insure that by giving, as we did to
Father, the same considerations to her custody time. That is to
liberalize, as much as we can, consistent with their schedules
and that of the children, their time with Mother.
I am required to consider 16 enumerated factors set forth by the
Supreme Court. Most of the factors deal with irrelevancies for
today. For example, is the child being abused? [23 Pa.C.S.A. §
5328(a)(2).] Of course not. There is no abuse. [23 Pa.C.S.A. §
5328(a)(2.1).] Is there a continued risk of harm to the child?
No. We were concerned previously that the child might harm a
parent, but that doesn't seem to be the case now because the
location has changed.
Are Mother and Father capable of providing physical safeguards
for supervision of the children? Absolutely. Mother has been
diligent in that regard. No less so has Father. Are Mother and
Father capable of performing duties on behalf of the children?
[23 Pa.C.S.A. § 5328(a)(3).] Yes.
Is there a need for stability and continuity in the child’s
education, family life, and community life? [23 Pa.C.S.A. §
5328(a)(4).] Well, that is the lynchpin, because by changing
custody that stability that they’ve had for some years and that
continuity will be altered. But we believe on an educational
level, and as a family unit, that the benefits of that change
would certainly outweigh any social burdens they might
encounter.
Mother does have extended family here, more so than Father.
[23 Pa.C.S.A. § 5328(a)(5).] That is a plus on Mother’s side, but
that is outweighed by the fact that there are strong sibling
relationships here. [23 Pa.C.S.A. § 5328(a)(6).] I didn’t ask
[J.C. or D.C.] if they had a preference. [23 Pa.C.S.A. §
5328(a)(7).] Not that they are not capable of intellectualizing a
preference, but I didn’t think it was important. But [H.C.]
certainly has a preference and we believe that it is a mature
decision, based upon his good judgment and what he sees as
happening on the ground now.
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Have the parents tried to turn the children against each other?
Certainly not intentionally, and there is no domestic violence
attendant here. [23 Pa.C.S.A. § 5328(a)(8).]
Are the parties capable of maintaining a loving and stable and
consistent relationship in nurturing their children? [23 Pa.C.S.A.
§ 5328(a)(9).] Absolutely. Both are equally capable. Is Mother
attuned to the physical needs of the children? [23 Pa.C.S.A. §
5328(a)(10).] Yes. Of that[,] there's no question. But it is
Father who we believe, based upon the evidence, is more likely
to attend to the emotional and developmental and educational --
in the case of [H.C.’s] -- special needs of the children.
The proximity of the residences of the parties. [23 Pa.C.S.A. §
5328(a)(11).] I said before that [J.C.] wished you lived around
the corner from each other. That's a wish. It will have to stay a
wish. It’s 51 miles away. But remember it was Mother who
returned to Southampton. I’m not criticizing that decision. It is
what it is.
Is there an ability to care for the child in the absence of a
parent? Child care arrangements which may be necessary? [23
Pa.C.S.A. § 5328(a)(12).] Yes, Father could do it. He has
support from [Stepmother]. Can Mother do it? Yes. She has
support from her family, many of whom live in the area.
Is there conflict between the parties? [23 Pa.C.S.A. §
5328(a)(13).] You betcha. I think it will continue until they
figure out that it gets to be very expensive to fight this war.
There’s no drug or alcohol abuse history by either Mother and
Father, nor is there any debilitating physical or mental condition
attendant to either. [23 Pa.C.S.A. § 5328(a)(14), and (15).]
N.T., 4/2/14, at 19-22.4
4
We note that the trial court did not specifically make its finding on the
record regarding section 5328(a)(1) with regard to any of the Children.
Nevertheless, Mother states in her brief that she is satisfied that the trial
court “carefully considered” the sixteen factors set forth in section 5328(a)
with regard to H.C. See Appellant’s Brief, at 7. It appears that the trial
court did not weigh this factor against either party.
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Mother first argues that the trial court committed an error of law or an
abuse of discretion by ignoring the findings and opinions of the expert that
the parties mutually agreed upon, Diana S. Rosenstein, Ph.D. Mother
asserts that both Dr. Rosenstein and the prior expert conducted custody
evaluations and recommended that Mother should be awarded primary
physical custody. Mother complains that, in its opinion, the trial court did
not address the majority of Dr. Rosenstein’s findings. Mother acknowledges
that the trial court may choose not to follow the expert custody evaluator’s
recommendations, but she asserts that the record must support the trial
court’s decision. Here, Mother alleges, the trial court refers only briefly to
Dr. Rosenstein’s fifty-page report and her testimony in court. Mother urges
that the trial court erred as a matter of law, because it did not consider the
expert report and testimony.
In M.A.T., we stated as follows:
The trial court was under no obligation to delegate its
decision-making authority to [the custody evaluator]. See, e.g.,
K.W.B. v. E.A.B., 698 A.2d 609, 613 (1997). It is an abuse of
discretion, however, for a trial court to dismiss “as unpersuasive,
and to totally discount, uncontradicted expert testimony.
Murphey [v. Hatala], 504 A.2d [917,] 922; see also
Rinehimer v. Rinehimer, 336 Pa. Super. 446, 485 A.2d 1166,
1169 (1984) (while not required to accept their conclusions,
“[t]he lower court was obligated to consider the testimony of the
two experts[.]”); Straub v. Tyahla, 247 Pa. Super. 411, 418
A.2d 472, 476 (1980) (“[W]e conclude that the lower court
abused its discretion in totally discounting as unpersuasive the
expert opinion testimony of appellant’s testifying psychiatrist.”).
Accordingly, while a trial court is not required to accept the
conclusions of an expert witness in a child custody case, it must
consider them, and if the trial court chooses not to follow the
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expert’s recommendations, its independent decision must be
supported by competent evidence of record. See Nomland v.
Nomland, 813 A.2d 850, 854 (Pa. Super. 2002) (“To say that a
court cannot discount uncontradicted evidence, however, is
merely to rephrase the requirement that a child custody court’s
conclusion have competent evidence to support it. So long as
the trial court’s conclusions are founded in the record, the lower
court was not obligated to accept the conclusions of the
experts.”) (citations and quotation marks omitted).
M.A.T., 989 A.2d at 19-20.
The trial court stated the following:
In the case sub judice, Mother first argues that this court
abused its discretion by ignoring the testimony and custody
evaluation completed by Diana S. Rosenstein, Ph.D. Mother
alleges that this court “completely ignored” her conclusion that
Mother should have primary custody of the children.
Initially, it must be noted that this court is not bound by
the opinion of an expert witness. See Nomland v. Nomland,
813 A.2d 850, 854 (Pa. Super. 2002).
With respect to the amount of weight a court is to place
upon expert testimony in custody matters, the Superior Court
has stated the following:
[W]hen [an] expert evaluation is uncontradicted or
unqualified, a child custody court abuses its fact finding
discretion if it totally discounts expert evaluation. To say
a court cannot discount uncontradicted evidence,
however, is merely to rephrase the requirement that a
child custody court’s conclusion have “competent
evidence to support it.” So long as the trial court’s
conclusions are founded in the record, the lower court [is]
not obligated to accept the conclusions of the experts.
Id. (emphasis added).
Contrary to Mother’s assertion, this court did not “ignore”
Dr. Rosenstein’s evaluation and testimony in reaching our
decision. Our Order, cited verbatim above, specifically discusses
Dr. Rosenstein’s report and testimony, including her conclusions
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that the children are “emotionally stirred up” as a result of the
divorce and custody battle, as well as her finding that the
children are “depressed” and suffering “psychologically.”
We credited her testimony that a change in custody would
be difficult for the children[;] however, in our view, we
determined that Dr. Rosenstein’s conclusions were not totally
dispositive. Specifically, we cited the fact that children are
resilient, and we also cited [H.C.’s] testimony, who already
resided with Father, that he has already made friends and
acclimated well to his new home and school.
Further, Dr. Rosenstein’s report and testimony was only
one factor contemplated by this court in reaching our decision to
grant Father primary custody of all three children. We focused
upon the troubled history of the oldest child, [H.C.], while he
lived with Mother in Warminster. [H.C.’s] learning disability and
aberrant behavior were recurring themes throughout the history
of the litigation.
In our Order, we outlined and discussed the reasons for
deviating from the recommendations of Dr. Rosenstein. We
focused our analysis on Mother’s voluntary relinquishment of
custody of [H.C.], and the vast improvement in his behavior and
academics while living with Father in Chester County. We
outlined the positive steps Father and his new wife have taken to
assist [H.C.] in this transition.
We discussed the children’s preference, or lack thereof,
with regard to custody. [H.C.] clearly wants to live with Father.
Both [J.C. and D.C.] were more equivocal. [J.C.] stated that she
would like “50/50” custody if Father lived closer to Mother.
Because the children get along well together, coupled with
[H.C.’s] vast improvement while living with Father, we granted
primary custody to Father. We were also mindful of the strong
policy in our law that in the absence of compelling reasons to the
contrary, siblings should be raised together whenever possible.
See In re Davis, 465 A.2d 614 ([Pa. Super.] 1983). We
certainly highlighted the importance of not separating the
siblings in our prior Opinion of November 23, 2010.
This court did not “ignore” Diana S. Rosenstein’s custody
evaluation report and testimony. Her findings and
recommendations were contemplated by this court in reaching
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our determination that Father should have primary custody of
the children. Thus, it was within our discretion to reject the
conclusions of Diana S. Rosenstein.
Trial Court Opinion, 5/19/14, at 18-20.
We find that the trial court considered Dr. Rosenstein’s expert
recommendation, and that its decision not to follow her expert
recommendation is supported by competent evidence of record. M.A.T.,
989 A.2d at 19-20; Nomland, 813 A.2d at 854. Thus, we find no error of
law or abuse of discretion.
Next, we address Mother’s second issue on appeal. Mother argues
that the trial court committed an error of law and/or abused its discretion by
failing to fully probe the impact that the custody order, in changing primary
physical custody to Father, will have on the two younger children. Mother
states that the trial court carefully considered the sixteen custody factors to
determine the effect of the order on H.C., and concluded that, since the
change would be in H.C.’s best interest, it must also be in the best interest
of D.C. and J.C. Mother asserts that the two younger children are being
forced to have a complete change in their social structure because they did
not want to choose against either parent.
Mother explains that H.C. has exhibited violent and threatening
behavior while living in her home, so she entered a split custody agreement
with Father to have primary physical custody of H.C. Mother states that,
under the split custody arrangement, the Children see each other every
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weekend. Mother suggests that the trial court should continue the split
custody arrangement, because the move to Father’s residence will have a
negative impact on D.C. and J.C., and Father may use his additional custody
time to alienate the Children against Mother. Mother cites L.R.F. v. P.R.F.,
828 A.2d 1148 (Pa. Super. 2003), for the proposition that a split custody
arrangement may be appropriate where compelling reasons exist.
With regard to Mother’s argument, the trial court stated as follows.
Both counsel for Mother and Father were present during
the in camera interviews. See Pa.R.C.P. 1915.11(b). According
to the official court stenographer, the testimony of the children
taken during this session is approximately 30 pages long in the
draft of the Notes of Testimony. Mother’s counsel had the
absolute right under our Rules of Civil Procedure to interrogate
the child during the in camera interviews. See id. Mother’s
counsel was free to ask any questions he deemed appropriate
and relevant to the issue of custody, and at no time did this
court cut off or interrupt Mother’s counsel’s questioning of the
children. Before concluding each interview, this court asked
both counsel if they had any more questions for the children.
At that time, if Mother’s counsel believed that this court
did not receive an accurate representation of the children’s
wishes, he had ample opportunities to question the children
further to flesh out their preference with regard to custody.
Mother’s disagreement with this court’s Order does not
give her the right to inaccurately characterize the proceedings to
support her position. As noted by our Order, we fully considered
the children’s preference regarding custody in conjunction with
the three (3) full days of testimony during this custody
proceeding.
Trial Court Opinion, 5/19/14, at 22-23.
In Johns v. Cioci, 865 A.2d 931, 942 (Pa. Super. 2004), a panel of
this Court reiterated “the policy in Pennsylvania is to permit siblings to be
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raised together, whenever possible,” including half-siblings, and, “[a]bsent
compelling reasons to separate siblings, they should be reared in the same
household to permit the continuity and stability necessary for a young child's
development.” Id. at 14 (citations and quotations omitted). While this
Court has emphasized the policy that siblings should be raised together, this
consideration alone is not determinative of which party should be granted
primary physical custody of a child. See M.J.M. v. M.L.G., 63 A.3d 331,
339 (Pa. Super. 2013) (“It is within the trial court's purview as the finder of
fact to determine which factors are most salient and critical in each
particular case.”) (citation omitted).
Here, the trial court discussed its decision regarding custody and the
weight it placed on the Children’s preferences in relation to its consideration
of section 5328(a)(6) and (7), and Dr. Rosenstein’s expert opinion. See
supra. We find ample, competent evidence in the record to support the trial
court’s decision regarding separation of the siblings in this matter. C.R.F. v.
S.E.F., 45 A.3d at 443. Thus, we find no error of law or abuse of discretion.
In her third issue, Mother argues that the trial court ordered a change
in custody that amounts to a relocation of the Children, since the parties
reside fifty-one miles apart. Mother asserts that the trial court should have
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considered not only the best interest factors under section 5328(a), but also
the relocation factors set forth at section 5337(h).5
In its opinion, the trial court addressed Mother’s argument as follows:
Mother next argues that our Order essentially rises to the
level of a relocation and the procedural requirements necessary
for a relocation in a custody matter have not been met. We
disagree. In this case, no party is seeking to relocate from their
current residence. Both Mother and Father have no intention of
relocating from their current residence. Further, Mother and
Father both relocated from their marital home in Royersford,
Montgomery County to their respective homes in Chester County
and Bucks County.
Mother and Father have been exercising their custodial
rights in their respective locations since September of 2013.
There have been no allegations from either parent that their
custodial rights have been impaired because of the distance
between their homes. See 23 Pa.C.S. § 5322(a) (Relocation is
defined as a change in the child’s residence that significantly
impairs the ability of the non-relocating parent to exercise
custodial rights).
Our Order also does not interfere with Mother’s ability to
attend school or extracurricular activities, as it does not take
effect until after the current school year is completed. See
C.M.K. v. K.E.M., 45 A.3d 417 ([Pa. Super.] 2012) (Significant
impairment includes the inability to attend school activities,
extracurricular activities, and medical appointments).
Thus, our Order does not constitute a relocation. Even
assuming it did, the relocation of Father from Royersford,
5
We observe that Father argues that Mother waived this argument pursuant
to Pa.R.A.P. 302, for Mother’s failure to pursue the relocation issue in the
trial court. Rule 302(a) provides that issues not raised in the trial court are
waived, and may not be raised for the first time on appeal. Mother
contended in her concise statement that the trial court’s order essentially
rises to the level of a relocation. Mother implies that she did not understand
that the trial court would order a relocation until the trial court entered its
order. We, thus, will not find the issue waived.
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Montgomery County to Coatesville, Chester County[,] does not
significantly impair Mother’s custodial rights.
Trial Court Opinion, 5/19/14, at 22-23.
Recently, in D.K. v. S.P.K., 102 A.3d 467, 477-78 (Pa. Super. 2014),
a panel of this Court held that the trial court must consider section 5337(h)
factors only where a parent is relocating with a child. In the instant matter,
the trial court’s reasoning for determining that there was no relocation
involved, and, thus, no need to consider the section 5337(h) factors, is
consistent with this Court’s decision in D.K. Thus, we find no error of law or
abuse of discretion.
In her fourth issue, Mother argues that the trial court failed to provide
for split physical custody for the summer of 2014, as the order provided for
Mother to have physical custody of the Children every other weekend in the
summer, and was to take effect when the school year ended. Mother
asserts that the parties had previously shared custody in the summer. She
contends that the two older children, both H.C. and D.C., testified that they
were looking forward to summer employment in her area.
In its Opinion dated May 19, 2014, the trial court adequately and
accurately addressed this issue, as follows:
In our Order, we addressed Summer, 2014, Summer, 2015, as
well as all major holidays. The Order states as follows:
Effective with the first Sunday after the school year in
June 2014, all three children, [H.C., D.C., and J.C.,] shall
be in the primary custody of Father, [S.C.]. Mother shall
have partial custody of all three children on the first,
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third, and fifth weekends as they occur, usually four per
year, from Friday at six
o'clock p.m. to Sunday at six o'clock p.m.
We are mindful of the fact it’s important for the children
to spend as much quality time with Mother as they can,
so we will also direct that on national holidays, for
example, Martin Luther King Day, Presidents Day, Good
Friday, Memorial Day, Labor Day, Columbus Day,
Veteran’s Day, when those holidays fall on a Monday and
there is no school, the children shall be in the custody of
Mother, from ten o’clock a.m. until six o’clock p.m.
Whatever holiday schedule the parties have in place now
will remain. I assume all holidays are equally important
to the families. If they cannot agree as to important
holidays, we will direct that as to Easter Sunday,
Christmas Day and Thanksgiving that [sic] the parties
shall alternate on an even-year and odd-year basis[,]
with Father starting in the even years and Mother in the
odd-numbered years.
The children may have Spring Break and Fall Break, if
their school provides that and it’s at least a week in
duration. Mother shall have the weekdays of the Spring
and Fall Break and Father shall have the weekends on
Mother’s schedule.
What do we do about the Summertime? Well, while
school is out, Mother is capable of taking custody of the
children during the Summertime and the concerns are not
the same, because they don’t have to get up and go to
school every day. We'll direct that as soon as school
ends in the year 2015, that [sic] Mother shall have the
first five weeks of the summer and Father shall have
Mother’s partial physical custody schedule for the
remaining three or four weeks of that summer vacation.
The Order will revert back [sic] to Father having primary
custody and Mother on a weekend schedule as before.
Trial Court Opinion, 5/19/14, at 23-24. We find ample, competent evidence
in the record to support the trial court’s decision regarding the custody of
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the Children in the summer of 2014, especially in view of our decision to
affirm the trial court’s denial of split physical custody of the two younger
children.6 C.R.F., 45 A.3d at 443. Thus, we find no error of law or abuse of
discretion on the part of the trial court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/10/2015
6
Oral argument on this matter occurred in October 2014. Accordingly, the
parties agreed that the issue regarding the summer of 2014 was moot.
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