R.J.W. v. F.J.W.
This text of R.J.W. v. F.J.W. (R.J.W. v. F.J.W.) 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.
Opinion
J-A28004-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
R.J.W., FATHER IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant
v.
F.J.W., MOTHER
Appellee No. 1513 EDA 2015
Appeal from the Order Entered April 24, 2015 In the Court of Common Pleas of Northampton County Civil Division at No(s): C-48-CV-2013-9535
BEFORE: GANTMAN, P.J., PANELLA, J., and SHOGAN, J.
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 26, 2015
Appellant, R.J.W. (“Father”), appeals from the order entered in the
Northampton County Court of Common Pleas, which granted primary
physical custody of M.W. (“Child”) to Appellee, F.J.W. (“Mother”), and
granted Mothers’ petition for relocation. We affirm.
In its opinion, the trial court fully and correctly sets forth the relevant
facts and procedural history of this case.1 Therefore, we have no reason to
restate them.2
____________________________________________
1 We add that on September 19, 2014, the court denied Mother’s petition for emergency custody relief. 2 On March 24, 2014, the court granted Mother’s relocation petition and awarded her primary physical custody of Child. The court also gave Father partial physical custody every other weekend during the school year. Father (Footnote Continued Next Page) J-A28004-15
Father raises the following issue for our review:
THE TRIAL COURT’S FINDINGS OF FACT ARE NOT SUPPORTED BY THE EVIDENCE, [THE COURT] ABUSED ITS DISCRETION AND/OR COMMITTED ERRORS OF LAW BY FAILING TO PROPERLY CONSIDER THE FACTORS IN AWARDING CUSTODY (23 PA.C.S.A. SECTION 5328) AND THE RELOCATION FACTORS (23 PA.C.S.A. SECTION 5337) AND UNREASONABLY CONCLUDED THAT PHYSICAL CUSTODY SHOULD BE CHANGED.
(Father’s Brief at 4).
In reviewing a child custody order:
[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. _______________________ (Footnote Continued)
timely filed a motion for reconsideration on March 27, 2015. The court conducted a hearing on April 20, 2015, and immediately vacated the March 24, 2015 custody order and deemed it temporary pending reconsideration. This action satisfied the requisites of Rule 1701(b)(3), which states that, following a timely motion for reconsideration plus a timely order granting reconsideration, the time for filing a notice of appeal or petition for review begins to run anew. Pa.R.A.P. 1701(b)(3). The court subsequently filed an amended custody order on April 24, 2015, which increased Father’s partial physical custody to three weekends every month during the school year. On May 20, 2015, Father timely filed a notice of appeal and Rule 1925(a)(2)(i) concise statement.
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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 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.
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(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 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
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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., 45
A.3d 417, 422-25 (Pa.Super. 2012). Section 5337 sets forth the procedures
and factors governing relocation in relevant part as follows:
§ 5337. Relocation
(a) Applicability.—This section applies to any proposed relocation.
(b) General rule.—No relocation shall occur unless:
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J-A28004-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
R.J.W., FATHER IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant
v.
F.J.W., MOTHER
Appellee No. 1513 EDA 2015
Appeal from the Order Entered April 24, 2015 In the Court of Common Pleas of Northampton County Civil Division at No(s): C-48-CV-2013-9535
BEFORE: GANTMAN, P.J., PANELLA, J., and SHOGAN, J.
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 26, 2015
Appellant, R.J.W. (“Father”), appeals from the order entered in the
Northampton County Court of Common Pleas, which granted primary
physical custody of M.W. (“Child”) to Appellee, F.J.W. (“Mother”), and
granted Mothers’ petition for relocation. We affirm.
In its opinion, the trial court fully and correctly sets forth the relevant
facts and procedural history of this case.1 Therefore, we have no reason to
restate them.2
____________________________________________
1 We add that on September 19, 2014, the court denied Mother’s petition for emergency custody relief. 2 On March 24, 2014, the court granted Mother’s relocation petition and awarded her primary physical custody of Child. The court also gave Father partial physical custody every other weekend during the school year. Father (Footnote Continued Next Page) J-A28004-15
Father raises the following issue for our review:
THE TRIAL COURT’S FINDINGS OF FACT ARE NOT SUPPORTED BY THE EVIDENCE, [THE COURT] ABUSED ITS DISCRETION AND/OR COMMITTED ERRORS OF LAW BY FAILING TO PROPERLY CONSIDER THE FACTORS IN AWARDING CUSTODY (23 PA.C.S.A. SECTION 5328) AND THE RELOCATION FACTORS (23 PA.C.S.A. SECTION 5337) AND UNREASONABLY CONCLUDED THAT PHYSICAL CUSTODY SHOULD BE CHANGED.
(Father’s Brief at 4).
In reviewing a child custody order:
[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. _______________________ (Footnote Continued)
timely filed a motion for reconsideration on March 27, 2015. The court conducted a hearing on April 20, 2015, and immediately vacated the March 24, 2015 custody order and deemed it temporary pending reconsideration. This action satisfied the requisites of Rule 1701(b)(3), which states that, following a timely motion for reconsideration plus a timely order granting reconsideration, the time for filing a notice of appeal or petition for review begins to run anew. Pa.R.A.P. 1701(b)(3). The court subsequently filed an amended custody order on April 24, 2015, which increased Father’s partial physical custody to three weekends every month during the school year. On May 20, 2015, Father timely filed a notice of appeal and Rule 1925(a)(2)(i) concise statement.
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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 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.
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(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 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
-4- J-A28004-15
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., 45
A.3d 417, 422-25 (Pa.Super. 2012). Section 5337 sets forth the procedures
and factors governing relocation in relevant part as follows:
§ 5337. Relocation
(a) Applicability.—This section applies to any proposed relocation.
(b) General rule.—No relocation shall occur unless:
(1) every individual who has custody rights to the child consents to the proposed relocation; or
(2) the court approves the proposed relocation.
(c) Notice.—
(1) The party proposing the relocation shall notify every other individual who has custody rights to the child.
(2) Notice, sent by certified mail, return receipt requested, shall be given no later than:
(i) the 60th day before the date of the proposed relocation; or
(ii) the tenth day after the date that the individual knows of the relocation, if:
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(A) the individual did not know and could not reasonably have known of the relocation in sufficient time to comply with the 60–day notice; and
(B) it is not reasonably possible to delay the date of relocation so as to comply with the 60– day notice.
(3) Except as provided by section 5336 (relating to access to records and information), the following information, if available, must be included with the notice of the proposed relocation:
(i) The address of the intended new residence.
(ii) The mailing address, if not the same as the address of the intended new residence.
(iii) Names and ages of the individuals in the new residence, including individuals who intend to live in the new residence.
(iv) The home telephone number of the intended new residence, if available.
(v) The name of the new school district and school.
(vi) The date of the proposed relocation.
(vii) The reasons for the proposed relocation.
(viii) A proposal for a revised custody schedule.
(ix) Any other information which the party proposing the relocation deems appropriate.
(x) A counter-affidavit as provided under subsection (d)(1) which can be used to object to the proposed relocation and the modification of a custody order.
(xi) A warning to the nonrelocating party that if the nonrelocating party does not file with the court an
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objection to the proposed relocation within 30 days after receipt of the notice, that party shall be foreclosed from objecting to the relocation.
(4) If any of the information set forth in paragraph (3) is not known when the notice is sent but is later made known to the party proposing the relocation, then that party shall promptly inform every individual who received notice under this subsection.
(d) Objection to proposed relocation.—
(1) A party entitled to receive notice may file with the court an objection to the proposed relocation and seek a temporary or permanent order to prevent the relocation. The nonrelocating party shall have the opportunity to indicate whether he objects to relocation or not and whether he objects to modification of the custody order or not. If the party objects to either relocation or modification of the custody order, a hearing shall be held as provided in subsection (g)(1). The objection shall be made by completing and returning to the court a counter-affidavit, which shall be verified subject to penalties under 18 Pa.C.S. § 4904 (relating to unsworn falsification to authorities), in substantially the following form…
* * *
(h) Relocation factors.—In determining whether to grant a proposed relocation, the court shall consider the following factors, giving weighted consideration to those factors which affect the safety of the child:
(1) The nature, quality, extent of involvement and duration of the child’s relationship with the party proposing to relocate and with the nonrelocating party, siblings and other significant persons in the child’s life.
(2) The age, developmental stage, needs of the child and the likely impact the relocation will have on the child’s physical, educational and emotional development, taking into consideration any special
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needs of the child.
(3) The feasibility of preserving the relationship between the nonrelocating party and the child through suitable custody arrangements, considering the logistics and financial circumstances of the parties.
(4) The child’s preference, taking into consideration the age and maturity of the child.
(5) Whether there is an established pattern of conduct of either party to promote or thwart the relationship of the child and the other party.
(6) Whether the relocation will enhance the general quality of life for the party seeking the relocation, including, but not limited to, financial or emotional benefit or educational opportunity.
(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.
(8) The reasons and motivation of each party for seeking or opposing the relocation.
(9) The present and past abuse committed by a party or member of the party’s household and whether there is a continued risk of harm to the child or an abused party.
(10) Any other factor affecting the best interest of the child.
23 Pa.C.S.A. § 5337(a)–(d) (h). Moreover,
[T]he party proposing relocation…bears the burden of proving relocation will serve the children’s best interests. See 23 Pa.C.S.A. § 5337(i). Each party, however, 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)(2).
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S.J.S., supra at 551. In all of these proceedings:
[O]n issues of credibility and weight of the evidence, we defer to the findings of the trial [court] who has had the opportunity to observe the proceedings and demeanor of the witnesses.
The parties cannot dictate the amount of weight the trial court places on evidence. Rather, the paramount concern of the trial court is the best interest of the child. 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.
R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa.Super. 2009) (internal
citations omitted).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Emil
Giordano, we conclude Father’s issue merits no relief. The trial court
comprehensively discusses and properly disposes of the question presented.
(See Trial Court Opinion, filed March 24, 2015, at 7-22) (examining each
relevant factor under applicable statutes; concluding custody and relocation
decisions are in Child’s best interest). The record supports the court’s
decision; therefore, we see no reason to disturb it. Accordingly, we affirm
on the basis of the trial court’s opinion.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 10/26/2015
- 10 - Circulated 10/09/2015 03:08 PM
IN TH.E COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY COMMONWEALTH OF PENNSYLVANIA CIVIL DIVISION·
Plaintiff
vs. NO. C-48-CV-2013-9535
Defendant
OPINION
The instant matter commenced on September 24, 2013, when ~ ~vJ • ("Father")
filed a complaint and a petition for special relief against ("Mother"} regarding
custody of their minor child ' or "Child"). A hearing was held on
October 3, 2013, and an Order of Court was entered on October 15, 20~~, wh:ereby.Jheparties S:i i'~ ~ agreed that Father and Mother would share legal custody of c;l,w,! ', ~~t<:6a1f~er WQuld . ~:: ::: . ) ~ =vu exercise primary physical custody. ;.'.~ i-·~ ~{ ~ ;:::.: . ~-·_:-_~ :s (,~ ...~....:_.-,-_~ -u ~fj'-"':l~:.s~1 :, u On September 11, 2014 Mother filed a Petition for Emergency~~l~~f .~~ekl.rlg cu~~y of - :.'j'"-··::, N
the Child based on Mother's alleged recent discovery of Father's crimirijl hi{t~ryieomprised of a )> c» co conviction for voluntary manslaughter in 1982. Subsequently, on September 19, 2014, this
Court appointed Ellen Kinglsey,Esquire, as Guardian Ad Litem ("GAL") for Chi IJ ... On October 27, 2014 Mother filed a Notice of Relocation seekingto move with the Child to Mechanicsburg,
Pennsylvaniato live with her fiance ~. M6 : l. Father objected to the
relocation in a counter-affidavit filed on November 4, 2014.
1 Circulated 10/09/2015 03:08 PM
Mother's Petition for Emergency Relief and her Notice of Relocation came before the
undersigned on Monday, December 15, 2014 via the Non-Jury list, wherein a hearing was held.
Due to the nature of the issues,the matter was continued to the February 9, 2015 Non-Jury list
in order for the depositions of Phillip J. Kinney, PhD., Faust Ruggiero,M.S., C.A.C and Ashley
Milspaw, Psy.D to be completed and added to the record. Upon review of the testimony,
arguments, briefs, depositions, and reports, the instant matter is now ready for disposition.
FINDINGS OF FACT
1. Mother and Father are the parents of a minor daughter, 111\"\. Luo ., who was born : ·1 on March ; .2010. N.T. at 127:14.
a. Mother is currently thirty (30) years old. N.T. at 204:15-21. _
b. Father is currently fifty-eight {58) years old. N.T. at 120:6.
2. Mother is a native of the Philippines and Father is a native of the United States.
3. After Father divorced his previous wife, he joined SinglesMinistry in Indiana,
Pennsylvania,an online matchmaking service, through which he was first introduced to
Mother. N.T. at 123:18-124:12.
a. Father first made contact with Mother in 2002, when she was living in the
Philippines. N.T. at 20:23-21:5; 125:14-17.
4. Father and Mother first met in person in 2003. N.T. at 125:19.
5. Father and Mother married in December 2004. N.T. at 126:1.
6. Mother and Father first separated in 2009. N.T. at 25:3; 126:8.
2 Circulated 10/09/2015 03:08 PM
a. Prior to their separation, Mother and Father did not have any children together.
N.T. at 126:12-15.
7. Father learned Mother was pregnant during the time when the parties were living
separate, but attempting to reconcile their marriage. N.T. at 127:7-11.
8. After. Ou\~:~ · birth in 2010, the parties resumed living together until their final
separation on August 12, 2013. N.T. at 127:24-128:11.
9. Mother lived with her friend · {V\. and her family after the parties' final separation in
August 2013. N.T. at 128:12-129:16. • 10. In September 2013, Mother moved in with lM,
Mechanicsburg, Pennsylvania . N.T. at 99:25~100:1; 105:17-19.
a. fl.,f\. 'has lived at that address for about fifteen (15) years. N.T. at 100:9-11.
11. Mother and ~./J\. have one child together, an eight (8) month old baby girl. N.T. at
103:14-17.
a. ~.M· , is currently sixty {60) years old. N.T. at 204:22-23. I .
12. Father currently lives· )./Vv · Bangor,Pennsylvania18013. N.T. at
119:22-24.
13. Father is employed part-time · , N.T. at 120:19-21.
a. Father has worked for said company for almost seven (7) years performing tasks
such as driving, running for parts, cleaning bathrooms and other miscellaneous
tasks. N.T. at 120:20-121:7.
b. Father works 8:30 am to 1:30 pm or 8:30 am to 2:30 pm about four (4) to five (5)
days a week. N.T. at 161:24-162:3.
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14. Father earns approximately One Thousand Fifty dollars ($1,050) per month.
N.T. at 122:19-25.
a. Father also receives monthly social security disability and private disability
payments. N.T. at 122:12-18.
15. The parties are operating under a custody order entered October 15, 2013 which
dictated that:
a. The parties have shared legal custody;
b. Father has primary physical custody;
c. Mother has partial physical custody;
d. Mother has custody of· ~ from 12:00 pm on Friday until 6:00 pm on
Sunday on three (3) consecutive weekends.
e. Father has custody the weekend after Mother's three (3) weekends.
16. The custody exchanges between Mother and Father were originally held at Cabela's, but
had to be changed to Hamburg State Police Barracks in Hamburg, Pennsylvania, via a
Court Order on April 26, 2014. N.T. at 111:19-22.
17. I~ . attends ·. Pre-School in Bangor, Pa. N.T. at 132:21-24.
a. ~ attends school five (5) days a week from 8 am to 4 pm. N.T. at 132:25-
133:5.
18. Ellen Kinglsey, Esquire, is the Court appointed Guardian Ad litem ("GAL") for' dvJA , 19. ~ attends behavioral therapy sessions with Ashley Milspaw Psy.D. ("Milspaw") of
Beacon Psychological Services of Pennsylvania, LLC.
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a. CWi.tl 1 has attended therapy sessionswith Milspaw on seven (7) occasionsas
of the date of Milspaw's deposition on January 28, 2015.
STANDARD OF LAW
Custody Factors in 23 Pa. C.S.A. § 5328(a)
When deciding a petition to modify custody, a court must conduct a thorough analysis
ofthe best interests of the child based on the relevant section 5328{a}factors. A.V. v. S.T .• 87
A.3d 818~ 822 (Pa. Super. Ct. 2014) (citing E.D. v. M.P., 33 A.3d 73, 80 (Pa. Super. Ct. 2011)). All
factors listed in section 5328(a) must be considered by the trial court when entering a custody
order. S.T.1 87 A.3d at 822 (citing J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. Ct. 2011)). Upon
review of a petition to modify custody, a court may modify a custody order to serve the best
interest of the child. 23 Pa. C.S.A. § 5328(a).
Nevertheless, in ordering any form of custody, the court shalt 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. !fL. After considering all factors, the Court may make
an award of shared, primary, partial, sole, qr supervised physical custody, as well as shared or
sole legal custody, provided such award is in the best interest of the child. Id. at § 5323. In
evaluating the best-interest standard, the Court must examine the following factors:
(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 safeguardsand supervision of the child.
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(2.1) The information set forth in section 5329.l(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.
(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.
(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.
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12:. at § 5328(a).
DISCUSSION
First, this Court must consider which party is more likely to encourage. and permit
frequent and continuing contact between the child and another party. 23 Pa. C.S.A. §
5328(a}(l). In this case, Mother testified that there were times when Father did not answer her
phone calls when she called CNlA ·, and there were other times when Father only allowed ~ to talk to Mother for a very brief period of time. N.T. at 195:18-24. Father testified
that although he monitors the phone calls between Mother and Child, he does not, and will
not, prohibit the Child from talking to her Mother. 12:. at 138:9-16; 166:16-167:1; 167:18-23. ·I
Father also testified that he once took the Child to the custody exchangeand Motherwas not
present, but he nevertheless drove the Child to Mechanicsburg becausethe Child wanted to
see her Mother. 12:. at 150:12-151:2. The testimony in this case. demonstrates that the parties have trouble communicating
with each other and often use custody of the Child to harassor initiate confrontation with the
other party. However, neither of them consistently discouragesthe Child from speakingto the
other parent. Thus, this factor will not be weighed in favor of either party.
The second factor requires the Court to consider the present and past abusecommitted
by a party or by a member of the party's household. 23 Pa. C.S.A. § 5328(a)(2).The Court must
also determine based on that finding whether there is a continued risk of harm to the child or
an abused party. 12:. Finally, the court must consider which party can better provide adequate
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physical safeguards and supervision of the child. !fl 1 Despite the witnesses who testified on
behalf of Father attesting to his good demeanor and his ability to control his anger issues,the
fact remains that Father was convicted of voluntary manslaughter in 1982. N.T. at 15:13-18;
16:23-17:20; 52:17-25 59:5-10; 96:1-10; 151:21-153:4. Additionally, the Court observed the
demeanor of Father who appeared to anger quickly and unexpectedly. This, coupled with the
fact that there was no testimony of any abusive behavior exhibited by Mother, requires the
Court to weigh this factor In favor of Mother.
A subsection of the second factor sets forth that the Court must consider the
information in section 5329.l(a) (relating to consideration of child abuse and involvement with
protective services). 23 Pa. C.S.A. § 5328(a)(2.1). Section 5329.l(a) sets forth:
"in accordance with section 6340(a)(S.1) {relating to release of information in confidential reports), where a party seeks any form of custody subject to the examination of the parties, the court shall determine:
{1) With respect to child abuse under Chapter 63 (relating to child protective services) or a child who is a victim of a crime under 18 Pa.C.S. {relating to crimes and offenses) which would constitute abuse under Chapter 63:
(i) Whether the child is the subject of an indicated or founded . report of child abuse.
(ii) Whether a party or a member of the party's household has been identified as the perpetrator in an indicated or founded report of child abuse.
(iii) The date and circumstances'of the child abuse.
1 As used in this section, "abuse" has the same definition used in Section 6102(a} of the Protection From Abuse Act, 23 Pa. C.S.A.§ 6102(a}. 23 Pa. C.S.A.§S322(a}.
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(iv) The jurisdiction where the child abuse investigation took place."
23 Pa. C.S.A. § 5329.l(a).
In the instant matter, there were allegations by the Childthat she was subject to
inappropriate touching in both parents' households. N.T. at 197:18. However, upon
investigation by Children and Youth, those allegations were deemed unfounded. As such, this
factor has been considered in the Court's decision.
The third factor requires the Court to consider the parental duties performed by each
party on behalf of the child. 23 Pa. C.S.A. § 5328(a)(3). Father has exercised primary physical
custody of the Child since October 2013. N.T. at 17:21-18:1. However, throughout the Child's
life, both parties have performed the parental duties expected of parents raising a young child,
and the record demonstrates that neither parent has been deficient in performing those duties.
Father testified that he assiststhe Child with her everyday routine from the time she
wakes up for school until the time she goes to bed, and he ensuresthat the she is fed, gets
adequate sleep, and is bathed. He also provides her with ample love and support. !.c1 at 136:5-
18; 136:19-137:4; 137:5-11; 161:13-18. Father further testified that some ofthe activities and
programs the Child participates include preschool, ballet, gymnastics,and swimming lessons. ·
.Is!:. at 133:9-134:10. Father explained that he placed the Child in preschool becausehe
believes that education is second most important thing in d/c.Jd..l.,v'}ife besidesher safety. Id.
at 131:20-132:3.
The record also reflects that Mother was able to perform the parental duties necessary
to ensure the healthy upbringing of a young child, both prior to, and after, the parties' final
separation. !.c1 at 160:6-11; 162:12-15; 163:7-10; 173:17-25; 174:3-4; 175:4-176:6. Further,
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when Mother exercises her custodial time with Child, Mother has,~ on a routine
wherein she ensures ~ is receiving proper care and all of Mother's love and support. & at 191:20-193:3. As such, this Court weighs this factor in favor of neither party.
The fourth factor requires the Court to consider the need for stability and continuity in
the child's education, family life and community life. 23 Pa. C.S.A. § 5328(a)(4). In custody
decisions,the court must consider the importance of continuity in the child's life and the
desirability to develop a stable relationship with established parental figures arid with the
known physical environment. Wiseman v. Wall. 718 A.2d 844, 850 (Pa. Super. Ct. 1998).
"Parental figures" may include individuals living in the households of a child's parents. & Throughout the time that Father has exercised primary physical custody of the Child, he
enrolled her in preschool and established a daily routine with her. Fathertestified that his
income is minimal, but he can pay his bills and living expensesand still have enough money left
to meet! ctv..M '.s needs. N.T. at 123:1-11. During the Child's time with Father, she has been
able to develop and grow as an individual and learned to assimilate herself within Father's
community. Moreover, Father~s home is situated such that, cJtM can safely play outside. !fl
at 133:1. Although Father does not have family living close to him, Child's Godmother,' J;, \/, ;(''Godmother'') is involved Inthe Child's life and she has young children with whom the
Child interacts. !fl at 134:24; 135:1-7.
~. ('!\, testified that his home is in a community where the Child can safely play
outside and socializewith other children. & at 106:4-15.. f!... /VI. 'further testified that he is
able to financially and emotionally support Mother and the Child, and that his relationship with
~ l is very good and he enjoys interacting and spending time with her. & at 105:23-
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106:15. Further, Child's eight (8) month old half-sister lives in, "',fl\,~~ home and the Child
has developed a fond relationship with her while simultaneously learning to live and adapt to
Mother's schedule and routine during her visits to Mechanicsburg.
Since the Child has developed a routine with both Father and Mother, and due to the
fact that she has been exposed to the different aspects of both parties' communities and has
sufficiently adapted to living in both parents' homes,the Court will weigh this factor in favor of
neither party.
The fifth factor requires the Court to consider the availability of extended family. 23 Pa.
C.S.A. § 5328(a)(S). In this case, Father has a sister and a foster brother, neither of whom live
close to Father's home. N.T. at 66:25; 68:15-2; 73:8-11; 74:16. Although Father's sister has two
(2) grandchildren who are around the Child's age, the Child has limited interactions with them.
ilk at 74:21-23; 74:24- 75:4; 109:13-22. Mother likewise has no family living closeto her home
in Mechanicsburg with whom the Child could interact, other than her eight (8) month old baby.
ilk at 205:21-24. Although. R,;V\. r has parents with whom the Child interacts, the Child
rarely sees: ~./I\.' 7, other relatives. ilk at 106:8'.'10;109:23-110:4. Due to the fact that
neither Father nor Mother has the ability to conveniently utilize their extended families in
raising the Child, this factor will be weighed in favor of neither party.
The sixth factor requires the Court to consider the child's sibling relationships. 23 Pa.
C.S.A. § 5328(a)(6). Pursuant to Pennsylvania'sdoctrine of "family unity," courts should,
whenever possible, permit siblings to be raised together. Johns v. Cioci, 865 A.2d 931, 942 (Pa.
Super. Ct. 2004). In the case at bar, there are no siblings in Father's family with whom the Child
has developed a close relationship. N.T. at 109:13-22. However, during Mother's custodial time,
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the Child ·spends a significant amount of time with her eight (8) month old half-sister, allowing
her to develop a loving and close relationship with her sibling . .!!!:_ at 103:17. Accordingly, this
factor weighs in favor of Mother.
The seventh factor requires the Court to consider the well-reasoned preference of the
child, based his or her maturity and judgment. 23 Pa. C.S.A. § 5328(a)(7). Although the child's
preference is not controlling in a custody case, it does represent "an important factor which
must be carefully considered in determining the child's best interest." Com. ex. rel. Piercev.
. Pierce, 426 A.2d 555, 559 (Pa. 1981). However, the weight to be accorded the child's
preference varies with the age, maturity and intelligence of the child and the reasons given for
. the preference. Id. In this case, given the young age of the Child, she did not testify to her
preferred custody arrangement. Thus, this factor was not relevant to the Court's decision.
The eighth factor requires the Court to consider the attempts of a parent to turn the
child against the other parent. 23 Pa. C.S.A. § 5328(a)(8). Here, there was testimony that both
parents have disparaged the other party in front of, or within earshot of, the Child. N.T. at 10:8-
11; 93:18-22; 137:21-138:8; 139:4-15; 141:16-19; 158:18-159:18; 196:24-197:8. Therefore,
this factor will be weighed in favor of neither party.
The ninth factor requires the Court to consider which party is more likely to maintain a
loving, stable, consistent and nurturing relationship·with the child adequate to meet her
emotional needs. 23 Pa. C.S.A. § 5328(a)(9). During the Child's life both Father and Mother
developed a loving and nurturing relationship with her. Although both parents disagree as to
the best interests of the Child, each performs their parental duties in a loving, nurturing and
caring way. As a result, the Court will weigh this factor in favor of neither party.
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The tenth factor requires the Court to consider which party is more likely to attend to
the daily physical, emotional, developmental, educational and special needs of the child. 23 Pa.
C.S.A. § 5328(a)(10). In the instant matter, there was testimonythat Father's life revolves
around his Child and he does not engage in any personal activities outside of caring for, and
providing for, his daughter. N.T. at 45:2-46:1; 142:9~20. In addition, Father testified that he is
attendant to the daily needs of the Child and he is there to comfort her when needed. k!:. at
133:9-134:10; 136:5-18; 136:19-137:4; 137:5-11.
Likewise, Mother testified that the Child is integrated to the routine and daily life at
~ ,Al\. '? . house. Mother mentioned that the Child helps set the table for dinner and helps
clean up after meals; they watch movies and read books together; they play with Child's half-
sister; they engage in household chores together; they eat mealstogether; they play games
together; and they go to church as a family. !fL. at 191:20-193:3.
Given the nature and degree of involvement of both parties in the Child's life and the
testimony attesting to both parents' ability to satisfy the physical, emotional, developmental,
and educational needs of the Child, this factor weighs equally between the parties.
The eleventh factor requires the Court to consider the proximity of the residencesof the . vvv parties. 23 Pa. C.S.A. § 5328(a)(ll). Mother is living .,
Mechanicsburg, Pennsylvania and Father lives ; Bangor,
Pennsylvania . N.T. at 99:25-100:1; 119:22-24. The distance between the parties'
residences is approximately one hundred and sixteen (116) miles. !fL. at 206:16-19. As such, this
factor has been considered in fashioning this Court's Order.
The twelfth factor requires the Court to consider each party's availability to care for the
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child or ability to make appropriate child-care arrangements. 23 Pa. C.S.A. § 5328(a)(12). The
Court notes that a parent's work schedule may not deprive that parent of custody if suitable
arrangements are made for the child's care in his or her absence. Gerber v. Gerber. 487 A.2d
413, 416 (Pa. Super. Ct. 1985). In the instant matter," I testified
that for a period of three (3) years when the parties were still together, she babysat the Child
about six (6) days a week at her home. She further testified that this continued for a period
after the parties separated. !f!.:. at 87:21...;....88:6; 89:9-19. After the parties' final separation,
Father utilized Godmother to care for dvld- when needed. N.T. at 164:23-165:2. Father
also testified that cJuiJ.. 'loves being around her Godmother's children and Father takes her
there for that purpose, and never for the purpose of "dump[ingJ the Child off or [to] get rid of
her." !f!.:. at 135:1-7. Godmother corroborated that fact when she testified that although she
does not babysit d,t;;A after school, Father leaves a~ with her when needed and
Godmother does, on occasion, feed ~ dinner. !f!.:. at 39:12-40:4; 40:20-22.
In the instant matter, both parties confirmed their ability to care for the Child and
attend to her daily needs. Each party has assumed the role of primary caretaker throughout the
Child's life and the above testimony demonstrates that when the parties are not able to provide
care for the Child, they are able to make appropriate arrangements to place the Child in a safe
environment. Therefore, this factor will not be weighed in favor of either party.
The thirteenth factor requires the Court to consider the level of conflict between the
parties and the willingness and ability of the parties to cooperate with one another. 23 Pa.
C.S.A. § 5328(a)(13). 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. !fl It is abundantly clear to
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· the Court that there is considerable hostility between the parties, and that this hostility
hampers their ability to communicate with one another. Specifically, the testimony in this case
revealed that Father unilaterally enrolled the child in preschool and that he failed to advise
Mother of parent-teacher conferences. N.T. at 189:23-190:3; 191:5-8; 221:6-8. Additionally,
there was testimony that both parties have withheld custody of the minor Child from one
another. !fh at 199:4-200:5; 215:22-216:17. Notwithstanding their mutual mistrust and a history of communication problems, the Court believes that the difficulties between the parties
do not preclude a shared custody arrangement. Giventhe mutuality of their difficulties, this
factor will be weighed in favor of neither party.
The fourteenth factor requires the court to consider the history of drug or alcohol abuse
of a party or member of a party's household. 23 Pa. C.S.A. § 5328(a)(14). In the case at bar, the
testimony demonstrated that neither parent, nor anyone in their households, has a history of
drug or alcohol abuse. N.T. at 189:5-14; Deposition of Ashley Milspaw, Psy.D. at 80:19-23,
January 28, 2015. Therefore, this factor is not relevant to the Court's decision.
The fifteenth factor requires the Court to consider the mental and physical condition of
the parties or member of their households. 23 Pa. C.S.A. § 5328(a)(15). In the present case,
Father has diabetes, sciatica, and had a heart attack in 2005. N.T. at 121:12-15; 155:21,
December 15, 2014. This, coupled with the lack of testimony regarding Mother or ~,/J\, having any health conditions like those of Father, weighs this factor in favor of Mother, !fh at 121:23-122:11.
Finally, in evaluating the best-interest standard, the Court may consider any other
relevant factor. 23 Pa. C.S.A. § 5328(a)(16). The depositions ordered to be performed for the
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February 9, 2015 hearing, as well as the December 3, 2014 GAL report have been taken into
consideration by the Court in fashioning its Order.
Relocation Factors In 23 Pa. C.S.A. § 5337(h)
It is well-established that, "[w]ith any child custody case, the paramount concern isthe
best interest of the child. This standard requires a case-by-caseassessmentof all the factors
that may legitimately affect the physical, intellectual, moral, and spiritual well-being of the
child." J.R.M. v. J.E.A.. 33 A.3d 647, 650 (Pa. Super. Ct. 2011) (quoting Durning v.
Balent/Kurdilla. 19 A.3d 1125, 1128 (Pa. Super. Ct. 2011)). In determining whether to grant a
proposed relocation, the court shall consider the following ten (10) factors. giving weighted
consideration to those factors which affect the safety of the child:
(1) The nature, quality, extent of involvement and duration ofthe child's relationship with the party proposing to relocate and with the nonrelocating party, siblings and other significant persons in the child's life.
(2) The age, developmental stage, needs of the child and the likely impact the relocation will have on the child's physical,educational and emotional development, taking into consideration any special needs of the child.
{3) The feasibility of preserving the relationship between · the nonrelocating party and the child through suitable custody arrangements, considering the logistics and financial circumstances of the parties.
{4) The child's preference, taking into consideration the age and maturity of the child.
{5) Whether there is an established pattern of conduct of either party to promote or thwart the relationship of the child and the other party.
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(6) Whether the relocation will enhance the general quality of life for the party seeking the relocation, including, but not limited to, financial or emotional benefit or educational opportunity.
(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.
(8) The reasons and motivation of each party for seeking or opposing the relocation.
(9) The present and past abuse committed by a party or member of the party's household and whether there is a continued risk of harm to the child or an abused party.
(10) Any other factor affecting the best interest of the child.
23 Pa. C.S.A. § 5337(h).
First, the Court must consider "[t]he nature, quality; extent of involvement and duration
of the child's relationship with the party proposing to relocate and with the non relocating
party, siblings and other significant persons in the child's life." 23 Pa. C.S.A. § 5337(h)(1). As
previously noted, Father has exercised primary physical custody of the Child for the last year
and a half. N.T. at 17:21-18:1. During that time, Father has performed his parental duties and
acted in accordance with what he believed to be in the best interests of the Child. Id. at 18:5-
24; 38:1-21. Besidesadvancingthe Child's academic life, Father is also involved with her ballet,
gymnastics, and swimming lessons.ll;l at 133:9-134:10. Father also ensures that the Child is
dean, that she gets adequate rest, and he is very attentive to her safety. Id. at 131:20-132:3;
136:5-137:4.
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During the time the parties were living together, Father worked eighty (80) to-ninety
(90) hours a week, during which time Mother was the primary caregiver to Child. lfL.160:6-11;
163:7-10. After Father received primary physical custody, Mother continued to exercise the
same parental duties she performed during her time as the Child's primary caregiver, and the
record demonstrates that Mother performed her parental duties admirably. !fl at 191:20- 193:3. Presently, Mother does not work outside of the home, but she provides care for her
eight (8) month old daughter. Thus, during her custodial time, Mother will be at home with
both children, permitting the Child's relationship with her half-sister to grow on a daily basis.
The Court finds this to be in the Child's best interests and preferable to the current custody
schedule which only permits the Child to see her half-sister about six (6) days a month.
Although both parties have developed a relationship with the Child, due to the fact that
the Child hasthe opportunity to grow up with her half-sister, who is her only sibling, and with
whom she is closely bonded, weighs this factor in favor of relocation.
The second factor requires the Court to consider "[t]he age, developmental stage, needs
of the child and the likely impact the relocation will have on the child's physical, educational
and emotional development, taking into consideration any special needsof the child." 23 Pa.
C.S.A. § 5337(h)(2). Here, Child is almost five (5) years old and currently attends preschool five
(5) days a week. N.T. at 132:5-16. Since the Child will start kindergarten in the Fall, her
educational life would be undisturbed if Mother were permitted to relocate with the Child.
Also, whether Father or Mother exercises primary custody, the Child will live in a home where
she will be cared for and have the opportunity to develop as a young woman.
Finally, as the Court has previously noted, Mother lives with her fiance and the Child's
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eight (8) month old half-sister, and Father lives alone. Given the Child's ability to be raised in a
· family environment where she has both a male and. female involved in her daily life, as well as a
younger half-sister, this factor weighs in favor of relocation.
The third factor requires the Court to consider "[t]he feasibility of preserving the
relationship between the nonrelocating party and the child through suitable custody
arrangements, considering the logistics and financial circumstances of the parties." 23 Pa. C.S.A.
§ 5337(h)(3). In custodv decisions, the court must consider the importance of continuity in the
child's life and the desirability to develop a stable relationship with established parental figures
and with a known physical environment. Wall. 718 A.2d at 850. "Parental figures" may include
individuals llvlng in the households of a child's parents . .!sL. In this case, the feasibility of preserving the Child's relationship with the non-relocating
party is evidenced, as Mother already resides in Mechanicsburg, and the Child has close and
loving relationships with both parties. Thus, there is no reason for the Court to conclude that
the Child's relationship with Father would not be well-preserved by a grant of the requested
relocation. Further, the shared custody between the parties has already been proven logistically
workable and within the parties financial means. Due to the above, this factor will be weighed
in favor of relocation.
The fourth factor requires the Court to consider "[t]he child's preference, taking into
consideration the age and maturity ofthe child." 23 Pa. C.S.A. § 5337(h)(4). Due to the Child's
age, she did not testify as to her preferred custody arrangement. Thus, this factor was not
relevant to the Court's decision.
The fifth factor requires the Court to consider "[w]hether there is an established pattern
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of conduct of either party to promote or thwart the relationship of the child and the other
party." 23 Pa. C.S.A. § 5337(h)(5). As previously discussedsupra, there was testimony that
both parties have disparagedthe other parent in front of or within earshot of, the Child. N.T. at
93:18-22; 137:21-138:8; 139:4-15; 141:16-19; 158:18-159:18; 196:24-197:8. This was
corroborated by the GAL, supporting the notion that both parties hold a great deal of animosity
toward one another. Js1 at 10:8-11. Thus, the level of conflict between both parties, as
discussedsupra. evidences that both parties have attempted to thwart the other's relationship
with the Child. As such, this factor will be weighed in favor of neither party.
The sixth factor requires the Court to consider "[w]hether the relocation will enhance
the general quality of life·for the party seeking the relocation, including, but not limited to,
financial or emotional benefit or educational opportunity." 23 Pa. C.S.A. § 5337(h)(6). As noted,
Mother does not work, and is relying on !{.Iv\. for financial support. N.T. at 112:24-113:4;
205:11-20. The Court finds that ().. .pA. , is able to· financially support both Mother and Child
because he worked in auto detail restoration for about thirty-seven (37) years and he also
utilizes rental properties, in addition to his business, which supplements his income. Js1 at
102:23-103:4; 103:5-9. Given the dearth of resources available to Mother in Mechanicsburg,
the Court finds that her life would be improved by the relocation particularly becauseshe has
established a new family, and ~. /,/\ . is able to financially support the family unit.
The Court is also of the view that Mother would derive a significant emotional benefit
from the relocation. Mother already resides in Mechanicsburg, having left the LehighValley
after the failure of her marriage to Father. The testimony demonstrates that the parties'
marriage was not a happy one, and that Father would sometimes degrade Mother. Js1 at
20 I I • "'
Circulated 10/09/2015 03:08 PM
158:18-159:18. By contrast, Mother testified that her relationship with R.,J.A • !s positive
and supportive. As a result of the support Mother has in Mechanicsburgcompared to her lack
of support elsewhere, this factor will be weighed in favor of the relocation.
The seventh factor requires the Court to consider, "[w]hether the relocation will
enhance the general quality of life for the child, including, but not limited to, financial or
emotional benefit or educational opportunity." 23 Pa. C.S.A. § 5337(h)(7). Notably, the Child's
standard of living and her educational opportunities would be substantially the same whether
she lives primarily with Father or with Mother. However, the relocation would afford the Child
the opportunity to grow up in a household with her Mother, her half-sister, and Mother's
flance, which is an opportunity the Child does not have with Father. N.T. at 103:17; 142:15-20.
Thus, the Court finds that the Child's emotional welfare will be best served by the relocation. As
a result of the above analysis,this factor will be weighed in favor of the relocation.
The eighth factor requires the Court to consider "[t]he reasonsand motivation bf each
party for seeking or opposing the relocation." 23 Pa. C.S.A. § 5337(h)(8).Mother testified that
she wants to relocate becauseher living condition would improve and she would have more
privacy. N.T; at 104:23-105:5; 184:4-11. Further, the fact that Mother and'. {<. ,fe\, are
starting a family together, favor Mother's desire to relocate.
Father opposes the relocation because Mother and A.M/~ ; relationship developed quickly, thus Father questions the safety and stability of placing the Child with Mother and her
flance, lfh at 153:17-25. However, Mother testified that before she moved in with R,/V\. I she met with his family and he met with the Child, signifying Mother ensured that living with
/(., /)/. · was not going to present an issueto the Child's safety or well-being. l.fh at 183:20-
21 • J ' ' I I I l
184:3. Also, there was no indication in the record that: 'R. M. house is not a suitable or
safe environment in which to raise the Child. As a result, this factor favors relocation.
The ninth factor requires the Court to consider "[t]he present and past abuse committed
by a party or member of the party's household and whether there is a continued risk of harm to
the child or an abused party." 23 Pa. C.S.A. § 5337(h)(9).2 Despitethe witnesses who testified
on behalf of Father verifying his good demeanor and his ability to control his anger issues,the
fact remains that Father was convicted of voluntary manslaughter in 1982, and Father's
demeanor during the trial demonstrated that he angers quickly and unexpectedly. N.T. at
15:13-18; 16:23-17:20; 52:17-25 59:5-10; 96:1-10; 151:21-153:4. This, coupled with the fact
that neither Mother nor "R .M. , have histories exhibiting abusivebehavior, tips the balance
of this factor in favor of the relocation.
Finally, the tenth factor requires the Court to consider "[a]ny other factor affecting the
best interest of the child." 23 Pa. C.S.A. § 5337(h)(10). The depositions performed for the
February 9, 2015 hearing, as well as the GAL's report, have been taken into consideration by
this Court in fashioning the Order.
WHEREFORE, having considered all relevant factors, this Court enters the following Order:
2 As used in this section, "abuse" has the same definition used in Section 6102(a} of the Protection From Abuse Act, 23 Pa. C.S.A. § 6102(a}. 23 Pa. C.S.A. §5322(a}.
22 ' . . . Circulated 10/09/2015 03:08 PM
IN THE COURTOF COMMON PLEAS OF NORTHAMPTONCOUNTY COMMONWEALTHOF PENNSYLVANIA CIVIL DIVISION ------------------- ,
vs. NO. C-48,.(V-2013-9535
r-.T.W, Defendant
'• ORDER ::?".: (.~ c, c::, :3 '') :::n c.:: u-,
AND NOW, this ii day of March 2015, this Court hereby ORD~-~~~~~D~EES,.~e I I F?" ,.. ~ l,--=a8
following: ;;,:;; :~_:)~: :?~·= ~~=;· :·.: -u r-:, .';:; __c ~- rn --, 0 1. RELOCATION.Mother shall be permitted to relocate to CJ') Mechanicsburg, Pennsylvania17055,
2. LEGAL CUSTODY.The parties shall share legal custody of ~ Each parent shall
have the right to receive directly from ~ :s school copies of her report cards,
notices, parent/teacher conferences, and any other information that is releasedto the
custodial parent. Each parent shall further have the right to receive any medical, dental
or daycare records or reports released to a custodial parent. In the event the school
sends information and/or documentation home with ~ 1, it is the responsibility of
the custodial parent to make a copy of the information and/or document and deliver it
to the non-custodial parent within forty-eight {48) hours of receipt.
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3. PHYSICALCUSTODY.Mother shall have primary physical custody of: 0,i Id , Father
shall have partial physical custody of O,i Id .i every other weekend beginning from
12:00 pm (noon) on Fridays until 6 pm Sundays.Father's custodial time shall commence
on the first weekend following issuanceof this Court Order. Neither party, nor anyone in
their respective households, shall consume alcoholic beveragesduring their periods of
custody. Neither party, nor anyone in their respective households, shall smoke in the
house while exercising custody over. CJ,; Jd .
4. · CUSTODY EXCHANGES.The custody exchangesshall remain at the Hamburg State Police
Barracks.Transportation necessaryto effectuate the custodial exchangesshall be in
accordance with the parties' current practice.
5. COMMUNICATION. Both parties shall cooperate and consult with each other regarding
matters that will affect Chi Jd•s; life, including but not limited to education, religion, medical, recreational, and related matters. The parties shall promptly advise each other
via text or email regarding scheduling any appointments for d,i f d I including, but not
limited to medical, dental, optical and related appointments. This advanced notice shall
serve as an opportunity for the other parent to attend the appointment. The custodial
parent shall promptly advise the non-custodial parent of any illness or injury sustained
by O,,' Jd I during his or her custodial period.
6. SUMMERTIME. During the summertime, beginning with the first full week in June 2015
and ending the week before Chi Id starts school in August 2015, the custody schedule
of the parties shall be on a week-on/week-off basiswith the exchangesoccurring at the
Hamburg State Police Barrackson Sundaysat 6 pm. Father shall have custody of
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Ul j Jd i to begin the summer schedule. Each party shall be entitled to two (2) non-
consecutive weeks of vacation with Chi/ d , which shall be exercised on their custodial
week, and shall not be exercised on the other party's week of custody. Each parent shall
provide the other parent with thirty (30) days' notice in writing (via text or email) of the
dates that-he or she intends to take vacation with. Cnild . In the event the parties
have conflicting dates regarding vacation, the parent who first requested the vacation
dates in writing shall be granted the requested vacation time. The parties shall provide
each other with a written itinerary of all vacation plans no later than ten (10) days prior
to the commencement of the vacation. The written itinerary shall include the
destination, address, telephone number, travel times and flights (if applicable). Both
parties shall share the use of Chi j d ·~ passport when either has arranged for Ch j Id to travel to a location where a passport is required. As of 2016, the summertime
schedule shall commence the first full week after the end of the school year and end the
week before the start of the new school year.
7. HOLIDAYS. The parties shall adhere to the following holiday schedule:
a. In ODD years Mother shall have custody of: Ghi Id l· on Easter Sunday, Thanksgiving Day, and Christmas Eve, and Father shall have custody of CJ,j Id
on Easter Eve holiday, Thanksgiving Eve, and Christmas Day;
b. In EVEN years Father shall have custody of Chd d Easter Sunday,
Thanksgiving Day, and Christmas Eve, and Mother shall have custody of. Cn it d on Easter Eve, Thanksgiving Eve, and Christmas Day;
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i. Thanksgiving Eve begins at 4 pm on the Wednesday immediately before
Thanksgiving Day and ends on Thanksgiving Day at 2_ pm; Thanksgiving
Day begins at 2 pm and ends on 4 pm the Friday immediately after
Thanksgiving;
ii. Christmas Eve begins at 4 pm on December 24 and ends on Christmas
Day December 25 at 12 pm; Christmas Day begins at 12 pm on December
25 and ends at 12 pm on December 26;
iii. Easter Eve begins at 4 pm the Saturday immediately before Easter Sunday
and ends on Easter Sunday at 12 pm; Easter Sunday begins at 12 pm and
ends on 12 pm Easter Monday
The parties shall alternate New Year's Day, Memorial Day, the Fourth of July, Labor Day, as well
as .any other school holiday. The Holiday Schedule shall begin with Father having custody of
~ on Memorial Day.
8. FATHER'S DAY & MOTHER'S DAY. Father shall have custody of~ on Father's Day
and Mother shall have custody of du1A a,n Mother's Day. Mother's Day and Father's
Day shall begin at 10 am and end at 7 pm.
9. Ci~ 1 S BIRTHDAY.;~·~ s birthday shall be shared with the non-custodial
parent. The non-custodial parent shall have custody of~ , on her birthday from 3
pm to 6 pm.
10. NON-INTERFERENCE. Both parents shall refrain from using any critical, condemning,
derogatory or hostile language in reference to the other parent or a member of that
26 1 t ' I
parent's family/household. Neither party, nor anyone in their respective households,
shall attempt or condone, whether directly or indirectly, any conduct which would
estrange :{jJ,~ 1 from the other parent, or injure or impair the mutual love and
affection.~ . has with the other parent. At all times each parent shall encourage
and foster in ~ · a sincere respect and affection for the other parent and shall not
hamper the natural development of ~ "s love and respect for the other parent.
Each party shall keep the other advised of a current addressand telephone number for
~ • . The parties shall not discuss custodial or personal matters in front of, or within
earshot of·~" ~, shall not be prompted to refer to Mother's fiance as
"Dad" "Father" "1 'f..11 or any other related name.
11. TELEPHONE ACCESS. The non-custodial parent shall have reasonable ongoing telephone
accessto, cJi..Jj._ , and the custodial parent shall not preclude ~ from contacting
the non-custodial parent at reasonable times. Should ~ 1 be unavailable to receive
the telephone call from the non-custodial parent, the custodial parent shall be
responsible for having ~ veturn the telephone call.
12. ACTIVITIES.Neither party shall enroll ~ in any activities without the consent of
the other party. Both parties have the right to attend these activities and events and
participate in them to the extent allowed by the organization. Each parent shall be
responsible for ~ '.5 attendance at the activities and events during his or her
custodial time. At the time of ~' ~ enrollment in a new activity, both parents
contact information shall be provided. eOi..i.U... shall not be kept from speaking to, or
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having contact with, either parent at an event or any other related extra-curricular
activity.
13. CO-PARENTING CLASSES. The parties shall engage in co-parenting counseling with a
provider to be selected by mutual agreement or with the assistance of the parties'
counsel. The parties shall participate in co-parenting counseling for the purpose of
facilitating cooperative parenting consistency between the households in keeping with -
~ 'S best interests. The cost of the counseling shall be split 50-50 between the
parties. If ~ 1 is requested to be present for any counseling sessions; the custodial
parent shall make arrangements to ensure her attendance.
14. ~ •s .:OUNSELING. C~ shall continue counseling with Ashley Milspaw,
Psy.D of Beacon Psychological Services of Pennsylvania, LLC, until such time as the
counselor determines that said counseling is no longer necessary. The parties shall split
50-50 the costs of the counseling sessions. If the counselor requests the participation of
either parent in any counseling session, the parties shall ensure their attendance and
meaningful participation.
BY THE COURT:
EMIL GIORDANO, J.
Related
Cite This Page — Counsel Stack
R.J.W. v. F.J.W., Counsel Stack Legal Research, https://law.counselstack.com/opinion/rjw-v-fjw-pasuperct-2015.