J-S47031-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

B.K.,                                           IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                     v.

C.N.K., J.R.C., AND R.B.,

                     v.

D.E.B.,

APPEAL OF: J.R.C.

                                                     No. 141 MDA 2016


               Appeal from the Order Dated December 22, 2015
             In the Court of Common Pleas of Cumberland County
                      Civil Division at No(s): 2011-5951


BEFORE: SHOGAN, LAZARUS, and JENKINS, JJ.

CONCURRING MEMORANDUM BY SHOGAN, J.:               FILED AUGUST 04, 2016

        While I agree with the learned Majority’s decision to affirm the trial

court’s denial of Father’s petition to relocate Child, I am compelled to write

separately regarding my concern that the custody factors outlined in 23

Pa.C.S. § 5328(a) were not addressed by the trial court. As this Court held

in A.M.S v. M.R.C., 70 A.3d 830 (Pa. Super. 2013), “[t]he trial court must

consider all ten relocation factors and all sixteen custody factors when

making a decision on relocation that also involves a custody decision.” Id.

at 836. Additionally, in S.W.D. v. S.A.R., 96 A.3d 396 (Pa. Super. 2014),

we explained that if a ruling affects custody or modifies an award of custody,
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consideration of the factors outlined in 23 Pa.C.S. § 5328(a) is required. Id.

at 402-404.

     In the instant case, I believe the custody arrangement for Child would

be impacted if Father were permitted to relocate.          Although Father’s

proposed relocation would result in what has been characterized as a slight

reduction in custody of Child for Maternal Grandmother and Mother, from 52

overnights to 48 overnights, this is a reduction nonetheless.      While the

Majority concludes that Maternal Grandmother’s partial custody rights would

be “essentially the same,” I believe any reduction in a party’s custody time

with Child would be deemed a modification of the custody award.

     Moreover, in its Memorandum the Majority acknowledges that Maternal

Grandmother and Mother’s custody of Child would be impacted.              The

Majority explains that “[e]ven though Father proposed almost the same

number of ‘overnights,’ those periods of custody would not be on a

consistent week-to-week basis, but rather, interspersed for longer periods

throughout the year,” and as a result, concludes that relocation of Child

would compromise Child’s close bond with Maternal Grandmother and the

developing bond with Mother. Majority Memorandum at 9-10. Additionally,

the Majority asserts that Maternal Grandmother’s current close proximity to

Father makes custody exchanges flexible and frequent, and avails Maternal

Grandmother and Mother the opportunity to attend Child’s school and

sporting events. Id. at 9. Accordingly, one can imagine multiple scenarios


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in which the relocation of Child would impact the custody arrangement

regarding Child.   As a result, I conclude that the trial court abused its

discretion in failing to conduct an analysis of the custody factors outlined in

23 Pa.C.S. § 5328(a) in addition to the relocation factors.




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