D.K.D. v. A. L.C.

141 A.3d 566, 2016 Pa. Super. 123
CourtSuperior Court of Pennsylvania
DecidedJune 15, 2016
DocketNo. 1276 WDA 2015
StatusPublished

This text of 141 A.3d 566 (D.K.D. v. A. L.C.) 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
D.K.D. v. A. L.C., 141 A.3d 566, 2016 Pa. Super. 123 (Pa. Ct. App. 2016).

Opinion

*569OPINION BY BOWES, J.:

D.K.D. ("Father") appeals from the July 31, 2015 custody order that granted the motion filed by A.L.C. ("Mother") to relocate to Treasure Island, Florida and denied his motion to modify an existing custody order. We reverse and remand for further proceedings.

Mother and Father married on March 29, 2004, separated during 2009, and divorced in March of 2015. The family moved to the Pittsburgh area two years into the marriage. The marital home was in Imperial, Pennsylvania. Following the separation, Father, who currently works for the Federal Bureau of Investigation ("FBI") Joint Terrorism Task Force, moved approximately twelve miles from the marital residence to his parents' home in Burgettstown. Until Mother moved to Florida during early 2015, she remained in the marital home with the parties' son L.D., who was born of the marriage during February 2008.

As L.D.'s therapeutic needs weighed heavily on the trial court's custody and relocation decisions, we summarize the relevant facts herein. In June of 2009, L.D.'s pediatrician, Patricia Miller, M.D., identified significant language and speech delays. Subsequent testing revealed a possible Autism Spectrum Disorder, and during January 2011, L.D. was diagnosed with Pervasive Development Disorder, not otherwise specified.1 He was prescribed thirty hours per week of intense outpatient therapy, most of which was provided in the marital home. Stability and routine are paramount to L.D.'s continued development.

Meanwhile, following the marital breakdown, on July 1, 2009, Father filed a petition for divorce that included a count for custody of L.D. The trial court entered a consent order that granted shared legal custody and awarded Mother primary physical custody. Father received periods of physical custody of L.D. for two hours on Tuesday and Thursday evenings and for three hours on alternating Saturday afternoons. The accord expressly limited the evening custody to the marital residence. While Father was authorized to exercise his custodial rights outside of the home during Saturday afternoons, in reality, Mother regularly objected to L.D. leaving the home with Father due to her concern that the disruption would be harmful to L.D.'s condition. Father generally acquiesced to Mother's demands and exercised weekend custody at the marital residence.

On September 25, 2014, Father filed a petition to modify the consent order. He sought larger periods of physical custody, more specific vacation and holiday schedules, and better enforcement of his custodial rights. Approximately one month later, Mother countered by issuing notice of her proposed relocation to Ocklawaha, Florida, so that she and L.D. could reside with her mother ("Maternal Grandmother").

Father opposed the proposed relocation, and the trial court held a two-day trial on the parties' respective petitions. Mother and Maternal Grandmother testified in support of the proposed relocation. Father testified on his own behalf and presented Dr. Miller, and his parents ("Paternal Grandparents") as witnesses. Following the testimony and review of the parties' proposed findings of fact, on March 20, 2015, the trial court denied Mother's proposed relocation. The trial court delineated *570the reasons for its decision, and addressed the ten relocation factors under 23 Pa.C.S. § 5337(h), reproduced infra. It found that the only factor that militated in favor of relocation concerned the anticipated enhancement to Mother's quality of life. The remaining factors, including consideration of L.D.'s quality of life, either weighed against relocation, were determined to be neutral, or were inapplicable. In sum, the court reasoned, "While Mother demonstrated that relocating to Florida would enhance her general quality of life, she failed to meet her burden that relocation is in [L.D.'s] best interest." Findings of Fact, 3/23/05, at 15.

In addition, the trial court granted Father's motion to modify the custody arrangement. It alleviated Mother's precondition that Father exercise custody at the marital home and fashioned a custody schedule that increased Father's periods of physical custody gradually over four months. The expansion culminated with Father exercising overnight custody on alternating weekends from Friday evening until Sunday evening. The court also outlined a defined custody schedule for L.D.'s academic breaks, holidays, and summer vacation.

On April 8, 2015, Mother filed a motion for reconsideration and a motion for special relief. The motion for reconsideration noted that the trial court had not established a custody schedule in the event that Mother elected to relocate to Florida without her son. The concomitant motion for special relief informed the court that, while the court's decision was pending, Mother, who attained a Juris Doctor degree, had accepted a job in Florida as a claims assistant at the Department of Veterans Affairs and had devised an interim plan for Maternal Grandmother to care for L.D. in the marital residence while she began immediate employment. Mother continued that she intended to purchase a home in Florida in anticipation of the trial court's reconsideration of its denial of her prior petition for relocation. Specifically, she averred, "Mother plans to have a home purchased in the geographic area of her employer in which she and her mother will live, with, if the Court permits, the child." Petition for Special Relief, 4/15/15, at 3. Mother asserted that the employment offer was a significant factor that was not of record during the prior hearing and she contended that "other significant changes have occurred," which she failed to identify in the petition. Id. at 2. Mother requested that the court re-open the record to take additional evidence relative to her relocation.

Within the thirty-day period to appeal the March 23, 2015 custody order, the trial court granted Mother's motion to reconsider, reopened the record, and scheduled an evidentiary hearing for June 2015. In light of the court's decision to reopen the record, Father submitted a motion to amend his original petition for modification in order to address Mother's acceptance of employment in Florida. The trial court granted Father's motion to amend. Thereafter, Mother issued an amended notice of relocation proposing to relocate with L.D. to Treasure Island, Florida, approximately two hours away from Maternal Grandmother's home. Again, Father opposed relocation.

On July 1, 2015, the trial court convened a third day of trial to address Father's amended motion for modification and Mother's amended relocation petition. Mother and Maternal Grandmother again testified in favor of relocation. Father and his parents testified in opposition to relocation and in favor of granting Father primary physical custody of the child in Pennsylvania. On August 3, 2015, the trial court issued amended findings of fact and entered a custody order granting Mother's *571request to relocate with L.D. to Treasure Island, Florida.

Again, the court delineated its consideration of the § 5337(h) relocation factors and the relevant best-interest factors outlined in 23 Pa.C.S. § 5338(a). As it relates to Mother's amended relocation petition, the trial court determined that factor two, which it had previously determined to weigh against relocation, was now neutral.

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Bluebook (online)
141 A.3d 566, 2016 Pa. Super. 123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dkd-v-a-lc-pasuperct-2016.