S.J.S. v. M.J.S.

76 A.3d 541, 2013 Pa. Super. 227, 2013 WL 4009151, 2013 Pa. Super. LEXIS 1706
CourtSuperior Court of Pennsylvania
DecidedAugust 7, 2013
StatusPublished
Cited by71 cases

This text of 76 A.3d 541 (S.J.S. v. M.J.S.) 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
S.J.S. v. M.J.S., 76 A.3d 541, 2013 Pa. Super. 227, 2013 WL 4009151, 2013 Pa. Super. LEXIS 1706 (Pa. Ct. App. 2013).

Opinion

OPINION BY

LAZARUS, J.

S.J.S. (Mother) appeals from the order of the Court of Common Pleas of Erie County denying her petition for primary custody of her two minor daughters, C.S. (born March 2002), and E.S. (born November 2004), and denying her request to relocate with them from Erie, Pennsylvania, to Buckingham, in Bucks County, Pennsylvania. After our review, we affirm.

Mother and M.J.S. (Father) were married in 2002. They separated in 2008 when the girls were ages 6 and 3. Throughout the marriage, Father worked from 6:00 a.m. to 2:30 p.m. during the week, and Mother worked from 3:00 p.m. to 9:00 p.m. During that time, Father was the primary caregiver. After the parties separated, the parties agreed to a custody arrangement. Mother’s work schedule changed to four days a week, and for three years after separation, Father watched the girls two days a week and Mother’s stepmother watched them two days a week. Mother and Father worked out alternating weekends and holidays, and Father enjoyed open telephone communication with the children.

On May 17, 2012, Mother mailed a notice of relocation to Father.1 Father filed a complaint for shared custody on May 16, 2012, as well as an objection to the proposed relocation notice on May 29, 2012.

In June 2012, after a hearing before a custody conciliator, Mother and Father entered into a consent order for shared legal and physical custody of their children. Mother had primary physical custody, and Father had partial physical custody every other weekend, from Friday at 6:00 p.m. to Sunday at 6:00 p.m., and on Wednesdays from 3:00 p.m. until 8:00 p.m. Based on the parties’ agreement, the Honorable John J. Trucilla issued an order dated June 13, 2012, which was entered on the docket on June 19, 2102. See Order of Court, 6/13/2012. Judge Trucilla deferred Mother’s relocation request for trial.

[544]*544Following trial, Judge Trucilla denied Mother’s request for relocation and issued a final custody order providing that Mother would retain primary custody if she remained in Erie, but that if Mother chose to relocate, Father would be awarded primary custody and the parties by mutual agreement would arrange for Mother’s partial custody periods. Mother appealed and filed a timely Statement of Errors Complained of on Appeal pursuant to Pa. R.A.P. 1925(b). The court issued its Pa. R.A.P. 1925(a) opinion on October 18, 2012. Mother raises fourteen issues for our review:

1. Whether the trial court erred in failing to give proper weight to the role of Mother as primary caretaker of the children, in determining that Mother should have primary custody of the children unless she relocates to Buckingham, Pennsylvania, but then failing to award Mother primary custody of the children in Buckingham, Pennsylvania?
2. Whether the trial court erred in emphasizing the stability of the children’s relationships and lives in Erie, Pennsylvania as a main factor in denying Mother’s request to relocate with the children, where the children will be experiencing a change in their school (1) if they live with Mother in Erie due to the fact that their prior school has closed, and (2) if they live with Father in Erie, as he is in a different school district than Mother?
3. Whether the trial court erred in disregarding the developmental needs of the children which are served primarily by Mother and the impact on the children’s physical, educational and emotional development which would result from a transfer of primary custody to the Father, where the Father has no involvement with the children’s schooling, school activities, friends, little to no involvement with their extracurricular activities, and no history of providing any extended care of the children over the past four years?
4. Whether the trial court erred in placing weight on the lack of “necessity” of the move to Buckingham, where the statutes and case law do not require the custodial parent to show that a move is necessary before relocation is granted?
5. Whether the trial court erred in determining that there are not adequate substitute partial custody arrangements that would preserve the relationship between Father and the children, where the children would have the opportunity to spend long weekends at , least every other month, plus extended holidays and extended time in the summer with Father?
6. Whether the trial court erred in finding that factor five of 23 Pa.C.S. § 5337(h) and factor one of 23 Pa. C.S. § 5328(a) are neutral as to their application to either Mother or Father, where there is a clear pattern established that Mother acted to promote the relationship between Father and the children since the parties’ separation, and where there is no allegation or evidence that Father has taken any steps to promote the relationship between Mother and the children?
7. Whether the trial court erred in emphasizing the emotional toll a relocation would have on the children if regular and consistent contact with Father is taken away and in failing to consider the emotional toll it would take on the children to be [545]*545removed from the primary care of Mother and the day-to-day contact and care provided by Mother if the children are not permitted to reside primarily with her?
8. Whether the trial court erred in determining that Mother’s motives for the move to Buckingham were not based upon what is in the children’s best interests, where Mother testified that she wanted the children to have better financial and educational opportunities and to have the opportunity to move out of the inner city into a suburban and family-oriented setting?
9. Whether the trial court erred in determining that factor ten of 23 Pa. C.S. § 5328(a) is neutral rather than heavily in favor of Mother, where Father has failed to attend or even participate in any area of the children’s lives other than to provide brief periods of supervision, and where Mother has been solely responsible for the children’s daily needs, medical needs and educational needs for four years since the parties separated?
10. Whether the trial court erred in failing to analyze both custodial options on equal ground, where there was no prior custody determination made by the court?
11. Whether the trial court erred in concluding that the best interests of the children would be served by awarding Mother primary custody on the condition that Mother remain in Erie, rather than analyzing both the residence of Mother in Buckingham and of Father in Erie on equal footing in an initial custody determination?
12. Whether the trial court erred in failing to conclude that it is in the children’s best interests to reside with Mother in Buckingham, Pennsylvania?
13. To the extent the relocation factors apply to this case, whether the trial court failed to give proper weight to the facts that: Mother has no opportunity for advancement in employment at her current position; Mother testified that the house selected for the first year in Buckingham was selected where there would be opportunities to purchase a residence within the children’s school district; and Mother is in a four-year relationship with her paramour with significant time spent together?
14.

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Cite This Page — Counsel Stack

Bluebook (online)
76 A.3d 541, 2013 Pa. Super. 227, 2013 WL 4009151, 2013 Pa. Super. LEXIS 1706, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sjs-v-mjs-pasuperct-2013.