T.D. v. E.D.

194 A.3d 1119
Superior Court of Pennsylvania·Decided August 28, 2018·No. No. 515 EDA 2018·Published·Cited by 11 cases

Opinion

OPINION BY STEVENS, P.J.E.:

Appellant, T.D. ("Father"), appeals from the order entered on January 25, 2018, in the Philadelphia County Court of Common Pleas, denying Father's Petition to Modify Custody, in which he requested that the child, A.D. ("Child"), born in February 2009, be permitted to travel on an airplane between Philadelphia and Boston as an unaccompanied minor. Pursuant to a motion filed on June 14, 2018, Father further moves to suppress Mother's brief filed on June 8, 2018. After a careful review, we affirm the trial court's order and deny Father's motion to suppress Mother's brief.

The trial court summarized the relevant procedural and factual history as follows:

I. Procedural History (See Docket )
Father currently resides in Boston. E.D. ("Mother") and A.D. live in Philadelphia. Father and Mother entered into a final custody Order by agreement on September 19, 2016, granting them shared legal custody of A.D. Pursuant to the Order, Mother has primary physical custody, and Father has partial physical custody every other weekend. The Order also outlines custodial rights for holidays, summertime vacations, travel costs, etc. The clause at issue states: "If child is flying/traveling, he must be accompanied by parent and/or agreed upon third party (designee, au pair, babysitter) at that parent's expense." (Order dated September 19, 2016.) The Order *1121goes on to state: "At ten years old, child may fly as an unaccompanied minor unless either parent files a timely petition to modify."
On April 17, 2017, Father filed a Petition to Modify Custody requesting that the court allow A.D. to fly to and from Boston and Philadelphia as an unaccompanied minor. No other issues were presented in the Petition. The court held a full hearing on January 25, 2018,[1 ] and denied Father's Petition. Father filed the instant notice of appeal and Pa.R.A.P. 1925(b) statement on February 14, 2018.[2 ]
II. Facts
The parties began their relationship in Boston. Father has resided in Boston since July 2009 and has lived in the Boston area since 1999. Mother moved to Philadelphia toward the end of 2008.
The flight time between Boston and Philadelphia is approximately one hour. When visiting A.D. every other weekend over the past eight years, Father would fly from Boston on Friday and arrive in Philadelphia at approximately 7:00 - 8:00 p.m. He would then go to Mother's house, pick up A.D., and spend the weekend with A.D. at a hotel. The weekends in Philadelphia are often filled with extracurricular and other activities, with a portion of the time spent watching movies in the hotel room. On Sunday evening, Father drops off A.D. at Mother's house and flies back to Boston. Father testified that, in the time he has been flying to and from Philadelphia, only one flight has been diverted, and no flight has been cancelled. Occasionally, flights have been delayed, but by no more than thirty minutes.
Father believes it would be unfeasible for him to fly to Philadelphia and accompany A.D. on a flight back to Boston on Friday evening, only to turn around and accompany A.D. back to Philadelphia on Sunday evening and return to Boston the same night.
The parties agree that A.D. has been on numerous flights, both nationally and internationally. Both parties would be agreeable to a babysitter or designated third party accompanying A.D. on an airplane to and from Boston, but Father testified that the third party would have to be "vetted."
Father and Mother have concerns about A.D. flying as an unaccompanied minor. But Mother is opposed to the child flying as an unaccompanied minor at age eight, and Father believes the child can fly as an unaccompanied minor at age eight. Father reached this conclusion after reviewing airline procedures, talking to people who are responsible for operating those programs, and talking to other parents who have allowed their children to fly as an unaccompanied minor. Father maintains his belief that A.D. is mature enough to fly as an unaccompanied minor because of A.D.'s well-mannered demeanor around adults, his behavior on airplanes, and his lack of fear of flying.
Mother is opposed to A.D. flying as an unaccompanied minor because she is *1122concerned for A.D.'s safety and does not believe he is sufficiently mature. Mother is concerned about A.D. talking to strangers due to his sociable and trusting disposition. In addition, she testified about a turbulent flight she and A.D. took that made A.D. feel scared and nervous; Mother said A.D. did not share this anecdote with Father. In the many times A.D. has flown with Father, Mother has never received any communications from Father about A.D. having any issues. Mother stated that A.D. enjoys spending time with Father but does not want to travel alone because he is scared.

Trial Court Opinion ("T.C.O."), 3/16/18, at 1-4 (citations to record omitted) (footnotes omitted).

On appeal, Father raises the following issues for our review:

1. Did the trial court abuse its discretion and err as a matter of law by determining that the child need not be interviewed by the [c]ourt at the January 25, 2018, hearing?
2. Did the trial court abuse its discretion and err as a matter of law and fact by precluding testimony about the unaccompanied minor protocols set forth by various airlines as contained in the exhibits and admitted into evidence at the hearing?
3. Did the trial court abuse its discretion and err as a matter of law and fact by failing to consider testimony and evidence regarding security measures for unaccompanied minors such as seat assignments, flight attendant assignments, call button protocols, protocols for flight changes, cancellations, scheduling irregularities, identification requirements, and phone call availability while in flight?[3 ]
4. Did the trial court abuse its discretion and err as a matter of law and fact when it considered evidence that was not part of the record and not necessarily accurate, such as protocols for an in-flight disaster and that the child would be sitting with strangers (possibly a registered sex offender)?
5. Did the trial court abuse its discretion and err as a matter of law and fact when it made findings that were not supported by record evidence and reached conclusions that were unreasonable based upon the evidence presented?[4 ]

Father's Brief at 4 (footnotes omitted).

In custody cases under the Child Custody Act, ("the Act"), 23 Pa.C.S.A. §§ 5321 - 5340, our standard of review is as follows:

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T.D. v. E.D., 194 A.3d 1119 (Pa. Ct. App. 2018).

194 A.3d 1119 (T.D. v. E.D.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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