R.M. v. N.F.

31 Pa. D. & C.5th 464
CourtPennsylvania Court of Common Pleas, Carbon County
DecidedMay 17, 2013
DocketNo 09-2791
StatusPublished

This text of 31 Pa. D. & C.5th 464 (R.M. v. N.F.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Carbon County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
R.M. v. N.F., 31 Pa. D. & C.5th 464 (Pa. Super. Ct. 2013).

Opinion

NANOVIC, P.J,

— The state legislature in sections 5328(a) and 5337(h) of the Child Custody Act, 23 Pa.C.S.A. §§ 5328(a) and 5337(h), set forth sixteen custody and ten relocation factors to be considered by the court in deciding issues of child custody and requests for relocation respectively. Notwithstanding these checklists, the guiding principle in all child custody litigation is the best interests of the child. With this in mind, we review mother’s appeal from our decisions denying her request to relocate and granting, in part, Father’s request to modify the existing custody order.

PROCEDURAL AND FACTUAL BACKGROUND

R.M. (“mother”) and N.F., III (“Father”) are the parents of one child together, Abygail, age six. The parties separated in July of2008, when Abygail was two years old. In the meantime, both have developed new relationships and have married: Mother married her current hiisband, J.M. (“husband”), on January 21, 2011, with whom she has a sixteen-month-old daughter; and father married his current wife, A.F. (“wife”), on October 20, 2012. Father and wife do not have any children together.

[466]*466Following their separation, the parties reached agreement on the terms of a custody order, which agreement was decreed as such on August 12, 2010. Under this order, the parties shared legal custody; mother held primary physical custody; and father was permitted supervised custodial rights every other weekend, on Easter Sunday and such other holidays as the parties could agree upon, and two weeks of uninterrupted vacation time.

At the time of the original custody order, Abygail was four years old. Approximately two years earlier, father had been involved in a motor vehicle accident, and sustained serious head and hip injuries. (N.T., p. 116). It was because of these injuries and AbygaiPs youthful age that father’s visits were agreed to be supervised. (N.T., pp.12, 60-61). The August 12, 2010 order required AbygaiPs paternal grandparents to be present at all times during father’s visitations. Since father’s marriage to wife, wife has also served as supervisor. (N.T., p.12).

This custody arrangement has worked well. Abygail is a healthy child, well cared for, and loved by both of her parents. She is in the first grade and doing well. (N.T., p.37). She has a good relationship with husband, wife, her half-sister, and father’s parents, who live in a separate home from father’s, on the family farm, approximately thirty yards away. (N.T., p.98). Father’s grandmother lives immediately to the rear of father’s home. (N.T., p.98).

Father’s sister lives within approximately a mile and a half from father. Her daughter, AbygaiPs cousin, often plays with Abygail when Abygail is visiting her father. (N.T., pp.47, 101, 124, 164-65). Mother is an only child; [467]*467her mother resides in Hamburg, Pennsylvania. (N.T., P-45).

On March 15, 2013, father filed a petition for modification of the August 12,2010 custody order. Therein, father sought more time with his daughter, “as the present partial custody schedule does not provide father adequate time to participate in the child’s life in a meaningful way.” Four days later, on March 19, 2013, mother gave notice of her intent to relocate to Florida in June, and proposed the custody schedule be modified to allow father to see his daughter twice a year — during the spring break from school and half the summer — and every other Christmas. Mother proposed father maintain his relationship with Abygail during the remainder of the year through phone calls using Skype or other video calling software. (N.T., p.33). Father objected to both the relocation and proposed change in custody schedule.

On April 16, 2013, we held a consolidated custody hearing on both mother’s request for relocation and father’s petition for modification. By order dated April 19, 2013, we denied mother’s relocation request. That same day, we entered a modified order essentially continuing the existing custody order wherein mother retained primary physical custody, but eliminating the requirement that father’s visits with his daughter be supervised, expanding the number of designated holidays throughout the year to be shared, and dividing the summertime equally between the parents. In the event mother nevertheless chose to move to Florida, we also entered an alternate order transferring primary physical custody to father, with mother to have visits every Thanksgiving holiday, for six consecutive [468]*468weeks during the summer months, and over the Christmas holiday for half of the school break.

Mother has appealed from our April 19, 2013 order.1 In her concise statement which accompanied the appeal, mother has identified eleven issues which she intends to raise on appeal. These issues have each been addressed within the body of our discussion below. For the reasons which follow, we believe the best interests of Abygail have been furthered by our decision and would be dramatically adversely affected if mother were permitted to relocate to Florida with Abygail.

DISCUSSION

A. Custody Order, As Modified

To the extent mother questions the modified custody order, contending we have not thoroughly examined each of the sixteen factors set forth in section 5328, we have done so, albeit not explicitly. The April 19, 2013 order denying mother’s request for relocation makes multiple findings of fact which we found to be significant in our determination. Expanding on these factors in the sequence set out by section 5328, we make the following findings and conclusions:

1. Both parents understand the importance of the other in Abygail’s life and both have acted to assure that Abygail has a relationship with the other. Moreover, [469]*469father has agreed to reduce his time with Abygail when this was in her best interests.
At the time the August 12, 2010 custody order was entered, Abygail did not attend school. (N.T., pp.10-11). The order provided father partial custody on alternating weekends from Saturday at 11:00 A.M. until Tuesday at 11:00 A.M. When Abygail began school the following year, father agreed to have his weekend visits end Sunday afternoon, rather than Tuesday morning. (N.T.,pp.l 1,49-50).
The converse has not happened, father’s ability to develop a full relationship with his daughter has been limited by the requirement that father’s visits be supervised. (N.T., pp.105-06).2 While there was reason for this limitation to exist at the time the order was entered, due to the extent and nature of father’s injuries and the age of Abygail, since then father’s mind and body have markedly improved such that there is no need for father’s visits with his daughter to continue to be supervised. (N.T., pp.113-15,117, 125, 128,131-36, 152, 157, 166-69, 181). Though mother has never precluded Father from visiting Abygail, she is unable to accept the improvement in father’s health and is unwilling to allow father to have unsupervised visits. (N.T., p.80).
[470]*4702. There is no evidence that either parent currently or in the past abused the other or a member of their household.
3. Prior to father’s motor vehicle accident in 2008, when Abygail was two years old, mother was AbygaiTs primaiy caretaker. (N.T., pp.8-9).

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Bluebook (online)
31 Pa. D. & C.5th 464, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rm-v-nf-pactcomplcarbon-2013.