D.B. v. L.M.F. v. J.F. and B.F.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

D.B. IN THE SUPERIOR COURT OF PENNSYLVANIA

Appellant

v.

L.M.F.

v.

J.F. AND B.F.

No. 983 MDA 2016

Appeal from the Order Entered May 17, 2016 In the Court of Common Pleas of Lancaster County Civil Division at No(s): 10-02282

BEFORE: LAZARUS, J., STABILE, J., and RANSOM, J. MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 30, 2016 D.B. (“Father”) appeals from a final custody order, entered on May 17, 2016, in the Court of Common Pleas of Lancaster County, denying his petition for relocation. The order also modified a prior custody order, awarding J.F. and B.F. (“maternal grandparents”), L.M.F. (“Mother”), and Father shared legal custody of D.G.F.-B. (DOB February 2010) (“Child”), and awarding primary physical custody of Child to Father and shared partial physical custody to maternal grandparents and Mother, provided, however, that Father does not relocate. The order provided that if Father chooses to relocate, maternal grandparents and Mother will share primary physical custody of Child and Father will have partial physical custody of Child. The court also removed a provision from the prior order that required maternal

2

grandparents to supervise Mother’s custody periods.1 After our review, we affirm.

Father filed a complaint for custody in March 2010, approximately one month after Child’s birth. Following a hearing, the court entered an order, dated November 4, 2010, granting Mother and Father shared legal custody of Child, granting Mother primary physical custody of Child, and granting Father partial physical custody of Child. The court also ordered Father to participate in a course of anger management counseling and directed the parties to participate in a review custody conference with a custody conference officer. In lieu of the conference, however, Mother and Father, by counsel, agreed to an order, dated June 9, 2011, that enlarged Father’s periods of partial physical custody and required a review conference in six months.

Thereafter, Father, concerned about Mother’s drug abuse, filed a petition seeking primary custody. Maternal grandparents filed a petition to

____________________________________________

1 The court had entered prior orders restricting Mother’s custody periods to supervised visitation in light of her drug abuse and, thereafter, precluded contact between Mother and Child until Mother successfully completed a drug rehabilitation program. Thereafter, the court allowed supervised visitation, with maternal grandparents as supervisors, provided Mother continued her methadone treatment. Mother was absent from Child’s life for about one year during her drug addiction, from November 2014 until November 2015, but, as of the time of the May 2016 custody/relocation hearing, she had been drug free for fifteen months and continues in a methadone maintenance program. See N.T. Hearing, 5/5/16, at 109, 165- 69, 176, 180.

3

intervene, which was unopposed. The court entered an order on October 25, 2011, granting maternal grandparents’ request to intervene, granting shared legal custody of Child to all parties, and granting primary physical custody of child to maternal grandparents. The court granted Father partial physical custody and ordered that Mother’s periods of supervised custody at the home of maternal grandparents.

On February 15, 2012, at Father’s request, the court held another review hearing. On August 1, 2012, the court entered an order granting shared legal custody of Child to Father and maternal grandparents, primary physical custody to Father, and partial physical custody to maternal grandparents. The court granted supervised partial physical custody to Mother, with maternal grandparents as supervisors.

On June 11, 2014, maternal grandparents filed a petition for modification. The court held a hearing on October 24, 2014. On November 4, 2014, the court issued an order granting shared legal custody of Child to Father and maternal grandparents, primary physical custody of Child to Father, and partial physical custody of Child to maternal grandparents. The court ordered Mother not to have contact with Child until she successfully completed a drug rehabilitation program. One year later, following a hearing, the court determined Mother did not pose a threat of harm to Child and granted her supervised physical custody provided she maintained her daily methadone treatment program.

4

On January 20, 2016, Father filed a notice of proposed relocation.

See 23 Pa.C.S.A. § 5337(c). Following a custody and relocation hearing, the court issued the order, denying Father’s petition for relocation and setting forth the custody awards, stated above, from which Father now appeals. Father raises the following issues for our review:

1. Whether the trial court erred and abused its discretion by awarding Mother and maternal grandparents, who reside in separate homes, shared primary physical custody of Child?

2. Whether the maternal grandparents have standing to be awarded primary physical custody of Child?

3. Whether the court erred and abused its discretion by denying Father’s request to relocate?

4. Whether the court erred and abused its discretion by finding Father’s request to move to be a relocation under section 5337 of the Child Custody Act?

Our standard and scope of review are 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. When a trial court orders a form of custody, the best interest of the child is paramount. The factors to be considered by a court when awarding custody are set forth at 23 Pa.C.S. § 5328(a).

5

E.R. v. J.N.B., 129 A.3d 521, 527 (Pa. Super. 2015) (citations and quotations omitted). Further,

When deciding a petition to modify custody, a court must conduct a thorough analysis of the best interests of the child based on the relevant Section 5328(a) factors. All of the factors listed in section 5328(a) are required to be considered by the trial court when entering a custody order. Section 5337(h)

requires courts to consider all relocation factors. The record must be clear on appeal that the trial court considered all the factors.

A.V. v. S.T., 87 A.3d 818, 822-23 (Pa. Super. 2014) (citations and quotations omitted).

Father argues that the court erred in characterizing his “move” as a relocation. He claims that since he was planning to move from East Earl in Lancaster County to Downingtown, in Chester County, which he states is simply a twenty-six minute drive, without traffic, the move should not be subject to relocation review. Father also claims that his move would not alter Mother’s and maternal grandparents’ custodial time and that he would assist them with transportation.2 The decision regarding whether to apply

the relocation factors is within the court’s discretion. Bednarek v.

____________________________________________

2 The court noted that, with traffic, the commute to and from East Earl to Downingtown increases to an hour. N.T. Custody/Relocation Hearing, 5/5/16, at 16, 194, Findings of Fact, 7/27/16, ¶¶ 14, 15. However, it is not so much the time and distance in this case, but the fact that the court found Father’s motivation to relocate a “sham.” Trial Court Opinion, 7/27/16, at 21. The court concluded Father’s plan to move farther from his primary place of business “a direct response to Mother’s return to the Child’s life and his desire to eliminate, or at least minimize, Mother’s and Maternal Grandparents’ role in the Child’s life.” Id. at 20-21.

6

Vasquez, 830 A.2d 1267 (Pa. Super. 2003). The distance is a consideration of course, but the focus in characterizing a relocation is on how that move will affect the opposing parties’ custodial rights. See 23 Pa.C.S.A. § 5322 (defining “relocation” as a “change in a residence of the child which significantly impairs the ability of a nonrelocating party to exercise custodial rights.”).

As the trial court points out, Child has been in therapy for adjustment disorder since 2014, is currently doing “really well” in Kindergarten at Blue Ball Elementary School, and that a change of schools “would be traumatic for” for him. N.T. Custody/Relocation Hearing, 5/5/16 at 75, 190-91, 228- 29; Findings of Fact, 7/27/16, at ¶¶ 7-8, 45. Father acknowledged how well Child was doing. He stated that Child’s teachers “have actually advanced him to first grade reading level on certain days” and that he had “great report cards.” N.T. Custody/Relocation Hearing, 5/5/16, at 14. Further, Father added that “[a]ccording to the teacher, he’s pretty much a leader of the group.” Id.

Child wishes to remain in the location where maternal grandparents reside, and he wishes to remain in the school he presently attends. Id. at 86-87, 217; Findings of Fact, 7/27/16, at ¶ 48. Additionally, the court noted that: Child enjoys a strong relationship with maternal grandparents; that Child has nightmares that maternal grandparents “will be killed[;]” that Child gets “very scared” when they come to court; that Child fears he will not ever see Mother or maternal grandparents again after court; and, that if

7

Father is permitted to relocate with Child, Child’s emotional issues “would be exacerbated.” N.T. Hearing, 5/5/16, at 75-79; Findings of Facts, 7/27/16, at ¶¶ 44-45, 48.

The court also found that Father, who operates a convenience store in Honeybrook, a short distance from maternal grandparents’ residence, was disingenuous in his reasons for relocating. Father asserted his motivation was to be closer to his father’s convenience store in Norristown, Montgomery County, although Father’s involvement with that store has been negligible. Father also states that Child will benefit from being closer to his paternal grandparents. The court acknowledged that if Father moved he would be closer to his parents, but characterized that as “slightly closer” than he is presently. N.T. Hearing 5/5/16, at 29-31; Findings of Fact, 7/27/16, at ¶ 28.

Furthermore, the court found that the evidence was “overwhelming that Father continues to harbor an animus toward Mother as well as toward the Maternal Grandmother.” Trial Court Opinion, 7/27/16, at 19. Additionally, the court characterized Father’s repeated attempts to “poison” Child’s relationship “with the maternal side of the Child’s family” as “horrifying.” Id.

It is critical to note that the Honorable Jeffrey J. Reich, who has been involved with this family’s custody matters for six years, noted that Mother has “grown tremendously” and that, unfortunately for Child, “Father perceives Mother’s rehabilitation, maturation, and growing sense of

8

responsibility as a threat to his plan to monopolize the Child culturally and spiritually.” Trial Court Opinion, 7/27/16, at 21. Essentially, the court determined that Father’s reasons for relocation were not in Child’s best interests and did not support disruption of Child’s life. As aptly stated by the trial court:

This Court’s persistent approach has been that the Child deserves the benefit of having both elements of his culturally and religiously diverse heritage understood by him and appreciated by him and by those who are significant to him (notably, his parents, his half-brother, and his grandparents on both sides).

Trial Court Opinion, 7/27/16, at 21.

After careful review of the record, the parties’ briefs and the applicable law, and Judge Reich’s well-reasoned opinion, we conclude that Father’s issues merit no relief. The court properly addressed both the relocation factors under section 5337(h) of the Child Custody Act, as well as the best interest factors enumerated in section 5328(a). See 23 Pa.C.S.A. §§ 5337(h), 5328(a); A.V., supra. The court provided a thorough analysis of Child’s best interests based on the relevant factors. We discern no abuse of discretion or error of law. E.R., supra. Accordingly, we affirm based on the trial court’s opinion of July 27, 2016, which incorporates the court’s findings and order of May 17, 2016.

9

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/30/2016

Circulated 12/12/2016 01:40 PM

Circulated 12/12/2016 01:40 PM