B.D. v. M.D.

Superior Court of Pennsylvania

B.D. v. M.D.

DecidedMarch 18, 2019

Docket1292 WDA 2018

StatusUnpublished

This text of B.D. v. M.D. (B.D. v. M.D.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

B.D. v. M.D., (Pa. Ct. App. 2019).

Pincite

Opinion

J-A05009-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

B.D. : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : v. : : M.D. : : Appellee : No. 1292 WDA 2018

Appeal from the Order Dated August 8, 2018 In the Court of Common Pleas of Allegheny County Civil Division at No(s): FD18-007885

BEFORE: GANTMAN, P.J.E., SHOGAN, J., and MURRAY, J.

MEMORANDUM BY GANTMAN, P.J.E.: FILED MARCH 18, 2019

Appellant, B.D. (“Father”), appeals from the order entered in the

Allegheny County Court of Common Pleas, which granted primary physical

custody of the parties’ three minor children (“Children”), to Appellee, M.D.

(“Mother”), and granted Mother’s petition for relocation. We affirm.

The relevant facts and procedural history of this case are as follows.

Father and Mother married in Florida in 2007, and later they moved to

Pennsylvania. During their marriage, the parties had three children. Following

a tumultuous relationship involving alcoholism, anger issues, and abuse by

Father toward Mother, the parties separated in January 2018. Since their

separation, Mother has had sole physical custody of Children; and Father has

paid no support since April 2018. The parties are in the process of divorce.

On July 6, 2018, Mother filed a Protection from Abuse (“PFA”) order J-A05009-19

against Father, based on a threatening text message. A few days later, on

July 10, 2018, Father filed a custody action requesting shared physical

custody. On July 13, 2018, Mother filed an answer and counterclaim for

primary custody and a notice of relocation, as Mother had received a job offer

in Florida. Father filed a counter affidavit regarding the relocation on July 18,

2018. The following day, the parties entered into a consent order to resolve

the pending PFA action against Father. The court also scheduled an expedited

hearing for August 2, 2018. Following the scheduled hearing, the court issued

an order and opinion on August 8, 2018, granting Mother’s relocation request

and establishing the post-relocation custody schedule. The custody

arrangement provided for Mother to exercise physical custody of Children in

Florida during the school year, while Father would exercise custody in

Allegheny County for summer break, as well as during holidays. On

September 7, 2018, Father timely filed a notice of appeal and a

contemporaneous concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925.

Father raises the following issue on appeal:

WHETHER THE TRIAL COURT ERRED IN GRANTING MOTHER’S PETITION FOR RELOCATION FOR SIX RELATED REASONS, WHICH FATHER ARGUES AS SUBPARTS IN HIS BRIEF ON APPEAL?

(Father’s Brief at 5-6).

In reviewing a child custody order:

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[O]ur scope is of the broadest type and our standard is abuse of discretion. This Court must accept findings of the trial court that are supported by competent evidence of record, as our role does not include making independent factual determinations. In addition, with regard to issues of credibility and weight of the evidence, this Court must defer to the trial judge who presided over the proceedings and thus viewed the witnesses first hand. However, we are not bound by the trial court’s deductions or inferences from its factual findings. Ultimately, the test is whether the trial court’s conclusions are unreasonable as shown by the evidence of record. We may reject the conclusions of the trial court only if they involve an error of law, or are unreasonable in light of the sustainable findings of the trial court.

S.J.S. v. M.J.S., 76 A.3d 541, 547-48 (Pa.Super. 2013) (internal citation

omitted). Additionally,

[O]ur Legislature adopted a new Child Custody Act (“Act”), effective on January 24, 2011. See 23 Pa.C.S.A. §§ 5321– 5340. The new Act applies to “disputes relating to child custody matters” filed after the effective date of the new law. 23 Pa.C.S.A. § 5321. In E.D. v. M.P., 33 A.3d 73, 76 (Pa.Super. 2011), we held that the Act applied to any proceeding, including a petition for relocation, initiated by a filing made after the effective date of the Act.

Id. With respect to a custody order, Section 5328(a) provides:

§ 5328. Factors to consider when awarding custody

(a) Factors.—In ordering any form of custody, the court shall determine the best interest of the child by considering all relevant factors, giving weighted consideration to those factors which affect the safety of the child, including the following:

(1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.

(2) The present and past abuse committed by a party

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or member of the party’s household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.

(2.1) The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement with protective services).

(3) The parental duties performed by each party on behalf of the child.

(4) The need for stability and continuity in the child’s education, family life and community life.

(5) The availability of extended family.

(6) The child’s sibling relationships.

(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

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or inability to cooperate with that party.

(14) The history of drug or alcohol abuse of a party or member of a party’s household.

(15) The mental and physical condition of a party or member of a party’s household.

(16) Any other relevant factor.

23 Pa.C.S.A. § 5328(a). In expressing the reasons for its decision, “there is

no required amount of detail for the trial court’s explanation; all that is

required is that the enumerated factors are considered and that the custody

decision is based on those considerations.” M.J.M. v. M.L.G., 63 A.3d 331,

336 (Pa.Super. 2013), appeal denied, 620 Pa. 710, 68 A.3d 909 (2013). A

court’s explanation of reasons for its decision, which adequately addresses the

relevant custody factors, complies with Section 5323(d). Id.

The new Act defines “Relocation” as “[a] change in residence of the child

which significantly impairs the ability of a non-relocating party to exercise

custodial rights.” 23 Pa.C.S.A. § 5322(a); C.M.K. v. K.E.M.,

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