J-A09018-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
ALEXANDER CHADA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : HEATHER SNOW GAAL : No. 1065 WDA 2023
Appeal from the Order Entered August 16, 2023 In the Court of Common Pleas of Allegheny County Family Court at No(s): FD 19-007530-005
BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM BY KUNSELMAN, J.: FILED: MAY 9, 2024
Alexander Chada (Father) appeals the decision of the Allegheny County
Court of Common Pleas, which granted the request of Heather Snow Gaal1
(Mother), and ordered that the parties’ seven-year-old son (the Child) move
back to Pennsylvania after living with Father in California for the previous two
years. On appeal, Father argues that the trial court lacked authority under
the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) to hear
Mother’s modification petition. See 23 Pa.C.S.A. § 5422(a)(1). Alternatively,
Father argues that the trial court misapplied the Child Custody Act. See 23
Pa.C.S.A. §§ 5328(a); 5337(i), (h). After careful review, we affirm.
The record discloses the following factual and procedural history.
Mother and Father met in 2015 while receiving in-patient treatment at a drug
____________________________________________
1 The trial court indicated that Mother’s surname is now “Gray.” J-A09018-24
and alcohol rehabilitation facility. After a brief relationship, their Child was
born in April 2016.
Father had limited contact with the Child, but he assumed custody
shortly after Mother began a term of incarceration stemming from drug
charges in October 2016. At the time, the Child was placed in the custody of
the Paternal Grandparents, in Allegheny County. A week later, Father was
released from rehab and returned to Paternal Grandparents’ home. Mother
remained incarcerated from October 2016 through May 2017. During Mother’s
incarceration, Father obtained an order from the Westmoreland County Court
of Common Pleas granting him sole legal and physical custody of the Child.
Following her release, Mother was granted supervised custody, twice
per week, in a public setting. This was the extent of Mother’s custody for the
next two years, until May 2019, when the case was transferred to the
Allegheny County Court of Common Pleas.
Father then sought to relocate with the Child to California. The trial
court held a hearing on Father’s proposed relocation in the summer of 2020.
At the time of the hearing, Mother said she had been clean and sober for five
years, whereas Father’s self-reported clean date was January 2020. However,
Father had a more significant relationship with the Child. Critically, Father
testified that a high paying job awaited him in California, that he planned to
live with his sister at no-cost, and, perhaps most importantly, Father testified
that Paternal Grandparents (who had cared for the Child with Father since
infancy) were also moving to California. The court granted Father’s request
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to relocate. The Child then lived with Father in California during the school
year but spent summers with Mother in Pennsylvania.
In June 2022, Mother petitioned the court to modify the custody
arrangement, requesting that the Child move back to Pennsylvania. In
response, Father argued that Pennsylvania no longer had exclusive,
continuing jurisdiction under the UCCJEA. The trial court held a hearing on
the question of jurisdiction on September 28, 2022, and the court concluded
it retained jurisdiction. See Findings of Fact and Conclusions, 10/13/22, at 3-
4.
The trial court then held the custody modification hearing on July 7 and
August 8, 2023. The court heard from Mother, Father, and a behavioral
therapist at the Child’s school; it also conducted an in camera interview with
the Child. Thereafter, the court granted Mother’s petition and issued its
“Findings, Conclusions, and Order” on August 11, 2023.
Therein, the trial court analyzed the custody factors enumerated in
Sections 5328(a) and 5337(h), and delineated extensive findings. See
Findings, Conclusions, and Order at 1-17. In sum, the court determined that
the beneficial life that Father said the Child would have in California did not
come to pass. Father did not obtain the job he said awaited him, he eventually
moved out of his sister’s guest home, and the Paternal Grandparents did not
move to California. Meanwhile, the Child’s relationship with Mother began to
flourish during his trips to Pennsylvania. After weighing the factors, the court
determined that it was in the Child’s best interests to move back to
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Pennsylvania, and the court awarded Mother primary physical custody. Father
timely filed this appeal.
Father presents the following five issues for our review:
1. Whether the trial court abused its discretion and/or erred as a matter of law in granting Mother’s request for relocation when the trial court lack jurisdiction to hear the matter.
2. Whether the trial court abused its discretion and/or erred as a matter of law when it granted Mother’s request for relocation where Mother, as the relocating party, failed to meet her burden of proof and establish that relocation was in the best interest of the child pursuant to 23 Pa.C.S.A. § 5337(i) and the relocation factors set forth in 23 Pa.C.S.A. § 5337(h).
3. Whether the trial court abused its discretion and/or erred as a matter of law in its application of the relocation factors set forth in 23 Pa.C.S.A. § 5337(h) and the custody factors set forth in 23 Pa.C.S.A. § 5328.
4. Whether the trial court abused its discretion and/or erred as a matter of law when it failed to consider or give appropriate weight to the current status and instead focused on issues previously adjudicated, effectively rendering a reconsideration of the 2020 relocation trial.
5. Whether the trial court abused its discretion and/or erred as a matter of law when it failed to give appropriate weight to the Child’s testimony that he did not wish to relocate to Pennsylvania, that he wished to continue living with Father, and whether the trial court found that the Child is “developmentally on track for his age, if not more so,” and where the trial court found him to be credible, responsive, and truthful.
Father’s Brief at 34 (style adjusted).
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I.
In his first issue, Father challenges the trial court’s determination that
it retained exclusive, continuing jurisdiction to resolve Mother’s custody
petition. To resolve this challenge, we are mindful of the following standard
of review. A trial court’s decision that it retains or relinquishes exclusive,
continuing jurisdiction over a custody determination pursuant to Section 5422
of the UCCJEA implicates the court’s subject matter jurisdiction and is purely
a question of law. Boback v. Pershing, -- A.3d --, 2024 PA Super 30, 2024
WL 697159 (Pa. Super. 2024) (citation omitted). Accordingly, this Court’s
standard of review is de novo and our scope of review is plenary. Id.
“The purpose of the UCCJEA is to avoid jurisdictional competition,
promote cooperation between the courts, deter the abduction of children,
avoid relitigating custody decisions of other states, and facilitate the
enforcement of custody orders of other states.” A.L.-S. v. B.S., 117 A.3d
352, 356 (Pa. Super. 2015). The UCCJEA was also enacted to conform state
law with the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. § 1738A,
which is a federal law requiring “that states give full faith and credit to another
jurisdiction’s child custody determination made in compliance with the
provisions of the PKPA.” R.M. v. J.S., 20 A.3d 496, 502-03 (Pa. Super. 2011);
see also U.S. Const. Art. IV, § 1.
Section 5422 of the UCCJEA provides, the court which has made the
initial child custody determination – in this case, the Pennsylvania court – will
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continue to have exclusive, continuing jurisdiction over the custody matter
until:
(1) a court of this Commonwealth determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this Commonwealth and that substantial evidence is no longer available in this Commonwealth concerning the child's care, protection, training and personal relationships;
23 Pa.C.S.A. § 5422(a)(1).2
On appeal, Father maintains that the Child no longer has significant
connection to Pennsylvania, because the Child has a more significant
connection to California. See generally Father’s Brief at 49-50. Father’s
argument misunderstands the law.
The Uniform Law Comment to Subsection 5422(a)(1) provides
guidance:
2 Section 5422 provides a second situation when the court would lose
exclusive continuing jurisdiction – namely, when:
(2) a court of this Commonwealth or a court of another state determines that the child, the child's parents and any person acting as a parent do not presently reside in this Commonwealth.
23 Pa.C.S.A. § 5422(a)(2).
Subsection 5422(a)(2) does not apply, because Mother is still a resident of Pennsylvania. We have explained, “Section 5422 is written in the disjunctive, and, therefore, the trial court is required only to determine whether the child fails one of the jurisdictional tests set forth in Section 5422(a).” Boback, at *2 (emphasis original) (citing T.D. v. M.H., 219 A.3d 1190, 1195 (Pa. Super. 2019)). This matter turns on Subsection 5422(a)(1).
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If a parent or a person acting as a parent remains in the original decree state, continuing jurisdiction is lost when neither the child, the child and a parent, nor the child and a person acting as a parent continue to have a significant connection with the original decree state and there is no longer substantial evidence concerning the child’s care, protection, training and personal relations in that state.
In other words, even if the child has acquired a new home state, the original decree state retains exclusive, continuing jurisdiction, so long as the general requisites of the “substantial connection” jurisdiction provision of [Section 5421) are met. If the relationship between the child and the person remaining in the state with exclusive, continuing jurisdiction becomes so attenuated that the court could no longer find significant connections and substantial evidence, jurisdiction would no longer exist.
23 Pa.C.S.A. § 5422 – Uniform Law Comment (emphasis added) (style
adjusted).
This Court has further explained how the phrase “significant connection”
should be understood:
We note that the phrase “significant connection” is not defined in the UCCJEA. “Significant” is defined as “having meaning” or “important.” MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 1091 (10th ed. 1997). “Connection” is defined as “the state of being connected,” or “a relation of personal intimacy.” Id. at 245. Therefore, pursuant to the plain and ordinary meaning of the phrase “significant connection,” exclusive, continuing jurisdiction is retained under section 5422(a)(1) as long as the child and at least one parent have an important or meaningful relationship to the Commonwealth. Accordingly, we must look at the nature and quality of the child's contacts with the parent living in the Commonwealth.
Rennie v. Rosenthol, 995 A.2d 1217, 1221-22 (Pa. Super. 2010) (footnotes
omitted).
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We note that “[t]he use of the term ‘and’ requires that exclusive
jurisdiction continues in Pennsylvania until both a significant connection to
Pennsylvania and the requisite substantial evidence are lacking.” Rennie,
995 A.2d at 1221. Moreoever, it does not matter if California became the
Child’s home state, so long as the Child still had a “significant connection” to
Pennsylvania. Section 5422(a)(1) does not ask which state has a better
connection, nor which parent has primary custody. See id at 1222 (“The
statute does not specify that courts must determine that the parent with
primary custody of a child has a significant connection with the state to retain
jurisdiction.”). The question is whether, following the relocation to California,
the Child and Mother maintained a meaningful relationship to Pennsylvania.
As long as a significant connection with Pennsylvania exists or substantial
evidence is present, Pennsylvania will retain jurisdiction. See id.
In its Findings of Fact and Conclusions, dated October 13, 2022, the trial
court explained why it determined that the Child still had a significant
connection to Mother in Pennsylvania:
Mother testified that she has exercised parenting time in Pennsylvania consistent with that granted in the Relocation Order summarized above. Specifically, since the relocation occurred, the Child has been in Pennsylvania with Mother for at least six weeks each summer. At the midpoint of Mother’s summer custody, as set forth in paragraph 4(e) of the Relocation Order, Father has exercised a week of custody in 2021 and 2022; in both years, Father elected to exercise his week with the Child at Paternal Grandparents' house in Pennsylvania. In addition, the Relocation Order gives Mother custody of the Child each year for either Easter or Thanksgiving; she testified that in 2022 the Child was
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“home with me for a week in Easter.” Mother also receives a “floating” additional three days of custody in Pennsylvania and half of the Child’s Christmas/New Year/Winter Holiday break. In 2021, the parties extended Mother's time at the Christmas break by tacking on her “floating” three days of custody so as “to avoid another contempt petition.”
To summarize, in each of the last two years the Child was in Pennsylvania for seven weeks each summer. Additionally, the Child spent time in the Commonwealth for holidays and for Mother's “floating” three days of custody. Based on the credible testimony at the hearing, and consistent with the Relocation Order, the Court finds that the Child has been in Pennsylvania for at least two months each year since relocation was granted.
[* * *]
The court must also consider the quality of the Child’s contacts with the parent and extended family living in the Commonwealth. When the Child moved to California in February 2021, he was spending three nights a week in Mother’s custody. Since then, Mother has maintained a close bond with the Child and has exercised the partial custody granted her in the Relocation Order. Last year Mother married [] Shawn Gray, who is now the Child’s stepfather. He and the Child have a good relationship; they recently built a treehouse together in the backyard. The Child has relationships with his maternal aunt in New Kensington and the aunt’s three children, the Child’s maternal cousins, who are ages 3, 6, and 9. Through his stepfather, the Child has three adult step-siblings. […] [3]
Since infancy, the Child has maintained a close bond with his Paternal Grandparents, who reside in Natrona Heights. Father and the Child stayed at Paternal Grandparents’ home for a full week during each of the past two summers. They have also stayed with Paternal Grandparents for certain holidays, including Christmas.
3 The trial court noted that the Child also had an adult, maternal half-sister
who also lives in Pennsylvania. However, the trial court did not consider this relationship to be a factor in its decision, due to a prior allegation of abuse (albeit one that that was later deemed unfounded).
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Based upon the foregoing, the court concludes that Child and Mother have a significant connection to Pennsylvania.
Findings of Fact and Conclusions, 10/13/22, at 3-4.
After review, we discern no error. For the first four years of his life, the
Child lived in Pennsylvania. Since his relocation to California, Mother regularly
exercised periods of partial custody in Pennsylvania, including extensive
custody of the Child in the summer. The trial court determined Mother and
the Child have a close bond and the Child has a good relationship with his
Stepfather and extended family. Even though Mother’s earlier relationship
with the Child was affected by her addiction, she did not allow the Child’s
relocation to California harm their developing bond. For these reasons, we
conclude that the trial court did not err when it determined that the Child still
had a significant connection to Pennsylvania. Thus, the court did not err when
it determined it had exclusive, continuing jurisdiction under Section
5422(a)(1) to resolve the parties’ custody dispute. Father’s first issue is
without merit.
II.
In his second appellate issue, Father claims the trial court misapplied
Section 5337(i) (relating to burdens of proof). See Father’s Brief at 51. The
interpretation and application of a statute is a question of law; thus, our scope
of review remains plenary and our standard of review de novo. See, e.g.,
E.C.S. v. M.C.S., 256 A.3d 449, 454 (Pa. Super. 2021).
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As an initial matter, we note that Father mischaracterizes the law.
Technically speaking, this matter is not a “relocation” case. When the
Legislature enacted 23 Pa.C.S.A. § 5337 to address relocation, it anticipated
there would be a “relocating party” and a “non-relocating party.” See White
v. Malecki, 296 A.3d 1210, 1214 (Pa. Super. 2023) (citing D.K. v. S.P.K.,
102 A.3d 467, 472 (Pa. Super. 2014)). Not all the relocation provisions set
forth in Section 5337 apply when “both parents have lived in their current
residences for some time, and neither parent is moving." White, 296 A.3d at
1214 (citing D.K., 102 A.3d at 473).
To be sure, in a situation like the one before us – where neither parent
is seeking to relocate, and only the child would be moving to a significantly
distant location – trial courts “should still consider the relevant factors of
Section 5337(h) in their Section 5328(a) best interest analysis.” Id. (citing
D.K., 102 A.3d at 477-78).4 Here, the trial court properly considered both
sets of factors, and we address the propriety of those analyses infra. The
question presented by Father’s second issue concerns the applicability of
5337(i) (relating to the burden of proof in a relocation matter).5
4 We previously held that Section 5328(a)(16) (“any other relevant factor”)
ropes in the Section 5337(h) factors; the Section 5337(h) factors are per se relevant to the Section 5328(a) best interest analysis. White, 296 A.3d at 1214. 5 Section 5337(i) provides:
(Footnote Continued Next Page)
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Father maintains that Mother had the burden of proving that the Child’s
move back to Pennsylvania would be in his best interests. On this point, he
is correct. Where neither parent is relocating, and only the child stands to
move a significant distance, we have held that the burden each parent
shoulders is substantially similar to that of Section 5337(i). See White, 296
A.3d at 1215-16. Here, Mother requested primary custody so that the Child
could move from California back to Pennsylvania; thus, Mother had the burden
to prove that the Child’s move would be in his best interests.
However, Father suggests he had no burden of his own. See Father’s
Brief at 51-52. This is incorrect. We have held that “each parent shares the
burden of proving, by a preponderance of the evidence, that an award of
custody to him or her would serve the best interests of the Child.” White, 296
A.3d at 1215 (quoting Graves v. Graves, 265 A.3d 688, 698 (Pa. Super.
2021)).
With the burden clarified, we turn to Father’s substantive argument on
this point. He maintains that the entire case was Mother’s to prove, and as ____________________________________________
(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).
(2) Each 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.A. § 5337(i).
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such, the trial court should not have weighed certain facts against him.
According to Father, the trial court misapplied the law when it focused too
attentively on his shortcomings.
For instance, in its analysis of Section 5337(h)(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”), the
trial court noted that neither party conducted a particularly thorough
investigation of the comparative educational opportunities available in
California versus Pennsylvania. See Findings, Conclusions, and Order at 9.
Father asserted that the opportunities available in California could not be
found in Pennsylvania, but the court said that Father made no effort to
ascertain the veracity of that assertion. Id. Similarly, the trial court took
issue with Mother’s efforts, finding that she merely made a phone call to the
local school district to inquire about the availability of special education
programs. Id. at 9-10. The court concluded: “Since neither party presented
adequate evidence of the educational opportunities in Pennsylvania [as
compared to California], the court is unable to determine which location would
provide the Child with better support for his educational and special needs.”
Id. at 10. In Father’s view, the trial court should have determined that Section
5337(h)(7) favors him, because it was not his burden to prove Pennsylvania
lacked the opportunities offered by California. See Father’s Brief at 52-53.
After review, we discern no error in the trial court’s application of Section
5337(h)(7). Under this subsection, Mother had the burden of proving that the
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Child’s move to Pennsylvania would have an educational benefit. The court
determined that Mother did not prove the same. However, the educational
aspect of Section 5337(h)(7) was just one component of one factor in the
court’s multi-factored analysis. Ultimately, the court did not weigh this factor
very heavily, in part because Father did not prove that the Child would miss
out on superior educational opportunities in California if the Child were to
move back to Pennsylvania. In this sense, Father’s burden claim is largely a
weight claim. As we discuss below, parties may not dictate the amount of
weight the trial court places on the evidence. See R.L.P. v. R.F.M., 110 A.3d
201, 208 (Pa. Super. 2015). Father’s second issue merits no relief.
III.
Father’s third appellate issue also concerns the application of the Child
Custody Act. He maintains that the trial court erred by failing to give him
added credit for being the Child’s primary caretaker. See Father’s Brief at 54-
55 (citing Johns v. Cioci, 865 A.2d 931 (Pa. Super. 2004)). Johns provides:
When both parents are otherwise fit, one parent’s role as the primary caretaker may be given weight as the determining factor in a custody determination. The court must give attention to the benefits of continuity and stability in custody arrangements and to the possibility of harm arising from disruption of long-standing patterns of care.
Father’s Brief at 55 (quoting Johns, 865 A.2d at 937).
Father’s reliance on Johns is misplaced. We have repeatedly held that
the primary caretaker doctrine, “insofar as it required positive emphasis on
the primary caretaker’s status” was no longer viable after Section 5328(a)
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was enacted in 2011. See M.J.M. v. M.L.G., 63 A.3d 331, 339 (Pa. Super.
2013); see also P.J.P. v. M.M., 185 A.3d 412 (Pa. Super. 2018); and see
Carrero v. Lopez, 300 A.3d 494, 499 (Pa. Super. 2023). “The considerations
embraced by the primary caretaker doctrine have been woven into the
statutory factors, such that they have become part and parcel of the
mandatory inquiry.” M.J.M., 63 A.3d at 339. Under Section 5328(a), the
need for continuity and stability is but one of many factors that the trial court
must consider as part of its overall analysis. The trial court has discretion to
weigh the factors as it sees fit, so long as the court gives weighted
consideration to those factors affecting the child’s safety. See, e.g.,
Raymond v. Raymond, 279 A.3d 620, 631 (Pa. Super. 2022). Courts must
look to the custody factors, not threshold criteria such as the primary
caretaker doctrine, to make a custody determination. See Carrero, 300 A.3d
at 499 (discussing Wiseman v. Wall, 718 A.2d 844, 851 (Pa. Super. 1998)).6
6 Father’s quotation of Johns did not include a pin cite, but he noted the omission of certain internal quotations contained in the Johns excerpt. One of the internal quotations was from Wiseman, a case which has been flagged for being superseded by the 2011 revisions to the Child Custody Act. See Carrero, 300 A.3d at 499. Arguably, Father should have been on notice that reliance on Johns would be misplaced. But we note that Johns itself is not flagged; neither are a great many other cases that rely on an outdated version of the Child Custody Act. We have recognized that pre-2011 custody cases may retain their value, but we cautioned that the plain language of the current statute must always come first. See Carrero, 300 A.2d at 500; n.4. As new amendments to the Child Custody Act are imminent, we instruct practitioners to be mindful, not only of the “Shepardizing” indicators, but also of the date of the citations, including internal citations, in order to determine whether a case remains viable.
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The instant case illustrates how a child’s need for “continuity and
stability” does not necessarily mean that the child should remain with the
primary caretaker. The trial court explained that the last several years, spent
in Father’s primary care, have been unstable for the Child and that a move to
Pennsylvania would actually provide the Child with more stability:
Father has failed to deliver on a number of the promises he made at the August 2020 relocation custody trial. Father is not working directly for his sister [C.] in a $120,000 a year job. The Child's beloved paternal grandparents — and most significantly [Paternal Grandfather] — did not relocate to Southern California to continue their hands-on care of the Child. And three years on, the Child's residential situation remains in flux: Father moved from his sister's guest house about the time Mother filed this Modification into a one- bedroom apartment a little over a mile away. The building is rent subsidized for families earning under $90,000 a year. Father hopes to move next spring to a two-bedroom apartment. But there is a risk of his losing his eligibility for rent-subsidized housing should he achieve the income he assured the Court in 2020 that he would be making when his relocation was approved.
Mother and her husband have lived in the same house in Butler for a number of years. She is a certified recovery specialist and assists people in recovery in finding housing. She has a flexible schedule that will allow her to meet any childcare needs.
Findings, Conclusions, and Order, 8/11/23, at 12-13.
In its Pa.R.A.P. 1925(a) opinion, the trial court further explained:
While [23 Pa.C.S.A. § 5328(a)(4) (relating to stability and continuity)] on its face would seem to be in opposition to a proposed relocation, the court notes that both Father’s residence and his income have been unsteady since his move to California. Father’s income from May of 2021 to August of 2022 was just $18,000 which made Father eligible
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for a universal basic income program. Father had also moved out of the guest house on his sister’s property just five months before the trial in this matter. Conversely, Mother testified that she has resided at her current residence for four years and owns a rental management company. Unlike at the 2020 trial, the court now finds that this factor weights in Mother’s favor.
Trial Court Opinion, dated 10/20/23 (T.C.O.), at 9.
After review, we conclude the trial court did not err when it failed to give
weighted consideration to Father’s status as the primary caretaker. Moreover,
the trial court did not abuse its discretion when it determined that Mother
would provide the Child with more stability under Section 5328(a)(4). Father’s
third issue is meritless.
IV.
In his fourth appellate issue, Father challenges the trial court’s weighing
of the custody factors. To resolve this claim, we observe the change in our
standard of review:
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.
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White, 296 A.3d at 1213 (quoting D.K. v. S.P.K., 102 A.3d 467, 478 (Pa.
Super. 2014)).
Father argues, without citation to any relevant legal authorities, that the
trial court abused its discretion by giving inappropriate weight to all that
transpired since the 2020 relocation trial. According to Father, the court did
not review Mother’s petition independently, but used the 2023 trial as a
referendum on whether Father’s 2020 relocation to California was a success.
See Father’s Brief at 64. More specifically, Father takes issue with the court’s
observation that Father did not obtain the six-figure salaried job he said
awaited him 2020, that he moved out of his sister’s California guest home,
and most importantly, that Paternal Grandparents did not end up moving to
California to be with him and the Child. Id. at 65.
In its Rule 1925(a) opinion, the trial court opined that Father’s position
lacked “logic and merit.”
Father is essentially arguing that the court should be barred from considering the statements that he and his witnesses made during the previous trial in this matter. However, both parties admitted the findings of the 2020 trial into the record of the most recent trial as Joint Exhibit 1. N.T., 7/7/23, at 218. Those findings contain the court's analysis of Father's assertions regarding the proposed relocation and there was no objection to their entry as an exhibit. There also was no limit placed on the court's use of them at the time that they were admitted. And so, with the findings properly before us, this court considered the progress made by Father and weighed his testimony regarding plans for the future accordingly.
T.C.O. at 10-12.
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We agree that Father’s position is illogical. To determine whether a
custody modification is in a child’s best interests, the trial court must be
permitted to consider the lineal picture, including the history of the case and
anything that transpired since the initial custody award – especially when the
historical evidence was admitted at the modification hearing.
Still, we understand Father’s point; he argues that by focusing on the
promises that did not come to fruition – the job, the housing, and the Paternal
Grandparents’ move – the trial court penalized him. Father maintains that his
overall situation was not affected by the promises that did not materialize.
Although he moved out of his sister’s guest house, he since found employment
and an apartment in the same area so that the Child did not have to switch
schools. Additionally, although Paternal Grandfather became too ill to move
to California, the Child was not negatively impacted by the change of plans.
In essence, Father concludes that the trial court should not have drawn
negative inferences from certain facts. See Father’s Brief at 64, 65. What
Father must understand is that such inferences are within the trial court’s
purview. The court has discretion to weigh the testimony and evidence, and
to assess the witnesses’ credibility. See White, supra.
Although we are not bound by the trial court’s inferences and
deductions, our standard of review permits us to modify the trial court’s
decision only if the court abused its discretion. “Appellate interference is
unwarranted if the trial court’s consideration of the best interest of the child
was careful and thorough, and we are unable to find any abuse of discretion.”
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R.L.P. v. R.F.M., 110 A.3d 201, 208 (Pa. Super. 2015) (citation omitted).
“An abuse of discretion is not merely an error of judgment, but rather a
misapplication of the law or an unreasonable exercise of judgment.” Johnson
v. Johnson, 222 A.3d 787, 789 (Pa. Super. 2019). In mounting an abuse-
of-discretion challenge, an appellant must demonstrate how the trial court’s
ruling “overrode the law, was manifestly unreasonable, or the product of bias,
prejudice, ill-will or partiality.” Commonwealth v. Rogers, 259 A.3d 539,
541 (Pa. Super. 2021).
Father does not explain how the trial court abused its discretion;
instead, Father invites us to substitute our judgment for that of the trial court.
But it is not the role of the Superior Court to re-find facts, re-weigh evidence,
and re-assess credibility. See, e.g., D.R.L. v. K.L.C., 216 A.3d 276, 285-86
(Pa. Super. 2019). Even if we disagreed with the trial court’s judgment, we
have long held that “an abuse of discretion is not merely an error of
judgment.” Johnson, 222 A.3d at 789. Because Father has not persuaded us
that an abuse of discretion occurred, we conclude that his fourth issue is
V.
In his final issue, Father claims the trial court abused its discretion when
it failed to give appropriate weight to the Child’s testimony. See Father’s Brief
at 74. During the in camera interview, the seven-year-old Child said it was
his preference to remain in California. See Findings, Conclusions, and Order,
8/11/23, at 8-9; 13-14. The trial court factored the Child’s preference into its
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analysis but decided to grant Mother’s request that he move back to
Pennsylvania.
On appeal, Father argues that the court should have afforded the Child’s
preference “some amount of weight, if not a substantial amount.” See
Father’s Brief at 75. Father concludes: “Therefore, the trial court abused its
discretion in failing to afford [the preference] any weight.” Id. What Father
seems to mean is the trial court should have afforded the Child’s preference
dispositive weight. Father’s argument, again presented without citation to
legal authorities, fails for the same reasons mentioned in the previous issue.
The trial court’s weighing of testimony and evidence was within its purview.
The parties cannot dictate the amount of weight the trial court places on the
evidence, which includes witness testimony. See R.L.P., 110 A.3d at 208.
Father’s fifth issue merits no relief.
In sum, we conclude the trial court did not err when it determined it had
exclusive, continuing jurisdiction under the UCCJEA. See 23 Pa.C.S.A. §
5422(a)(1). We further conclude that the trial court did not misapply the law
regarding burdens of proof when it observed that Father failed to present
convincing evidence that California would provide more educational benefits
for the Child. Likewise, the trial court did not misapply the law when it did
not give added weight to the fact that Father was the primary caretaker; the
primary caretaker doctrine has been superseded by the 2011 revisions to the
Child Custody Act. Furthermore, we discern no abuse of discretion when the
trial court made negative inferences regarding that change in Father’s
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circumstances between the 2020 and 2023 trial, nor do we find an abuse of
discretion when the trial court chose not to afford the Child’s preference
dispositive weight.
Order affirmed.
FILED: 5/9/2024
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