J-A35028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.F.M.,                                          IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

C.P.,

                            Appellant                 No. 910 WDA 2015


                      Appeal from the Order May 12, 2015
               In the Court of Common Pleas of Lawrence County
                   Civil Division at No(s): 10709 of 2012, C.A.


BEFORE: BENDER, P.J.E., SHOGAN, and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                        FILED FEBRUARY 05, 2016

        C.P. (“Mother”) appeals from the order entered on May 12, 2015, in

the Lawrence County Court of Common Pleas, denying her petition to

relocate to Austin, Texas, with her daughter, K.N.M. (“Child”), born in April

of 2012.    The order also denied the petition filed by Child’s father, J.F.M.

(“Father”), seeking to modify the existing custody order.1 We affirm.

        The trial court set forth the factual background and procedural history

of this appeal as follows:

              The Plaintiff, [Father] and the Defendant, [Mother] are the
        natural parents of the minor child. . . . Father initiated the
        instant custody action on June 12, 2012 by filing a Complaint in
        Custody.    Following a Custody Conciliation Conference, an
____________________________________________


1
  Father has not challenged the denial of his petition for modification of
custody.
J-A35028-15


      agreed upon Custody Order was entered whereby Mother
      enjoyed primary custody of [Child], subject to Father’s partial
      custody on Monday and Wednesday evenings and overnights
      every Friday. On April 22, 2013, Father petitioned to modify the
      existing Custody Order to increase his periods of partial custody.
      Following another Custody Conference, Father’s partial custody
      increased to overnight visitation every Wednesday evening and
      every weekend from Saturday at 10:00 a.m. until Sunday at
      8:00 p.m., in addition to extensive summer and holiday
      visitation. Father filed a second Petition for Modification on
      August 4, 2014, wherein Father requested primary physical
      custody of [Child]. On October 27, 2014, Mother filed a Petition
      to Relocate with the minor child to Austin, Texas.          Father
      opposed Mother’s relocation, and the [trial court] consolidated
      Mother’s request to relocate and Father’s request for primary
      physical custody for trial.

Trial Court Opinion, 5/12/15, at 1-2.

      The trial court held the custody trial over five days in March and April

of 2015.    During the trial, on March 18, 2015, Father presented the

testimony of Kirk Lunnen, Ph.D., who conducted a custody and psychological

evaluation of the parties. On March 18, 2015 and March 19, 2015, Father

presented the testimony of Child’s paternal grandmother, R.M., who had

notified Lawrence County Children and Youth Services (“CYS”) about alleged

potential health and safety concerns for Child at Mother’s home. On March

18, 2015, Father presented the testimony of Gary Zarilla, who was the CYS

Youth caseworker assigned to Child’s case. On March 19, 2015 and March

27, 2015, Father testified on his own behalf.     On April 16, 2015, Mother




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testified on her own behalf.          On April 23, 2015, Mother presented the

testimony of her husband, J.M.2

       The trial court summarized the testimony from the custody trial as

follows:

       Doctor Kirk Lunnen, a psychologist employed by People In Need,
       conducted a custody and psychological evaluation of the parties.
       Dr. Lunnen’s evaluation consisted of multiple interviews with the
       parties, Mother’s current husband, the paternal grandparents,
       and a home visit of Mother’s residence and Father’s residence.
       Dr. Lunnen ultimately opined that the best interests of the minor
       child would be served by implementing a fifty-fifty division of
       physical custody between the parties. Dr. Lunnen stated that he
       reached his conclusion after considering each party’s
       psychological evaluations, the parents’ relationship with the
       [Child], the close proximity of the parties’ residences, the ability
       of both Mother and Father to parent, and the parties’ available
       support systems. Dr. Lunnen further opined that the minor child
       is developing appropriately and, so far, appears unaffected by
       the custody dispute between the parties.

             Father is currently twenty-three years old. Father resides
       with his parents, [R.M. and F.T.]. Father attends college at
       Youngstown State University full time, and he does not work.
       Father is completely reliant upon his parents for all of his
       financial support, including his monthly child support obligation
       of $100. Father is pursuing a degree in criminal justice. Father
       aspires to become a police officer. Father attends class every
       weekday at 10:000 [sic] a.m., and typically finishes his courses
       in the afternoon.

             Father and Mother met in high school. They dated for
       approximately three years prior to Mother becoming pregnant.
       Mother and Father remained close, but they did not maintain an
       exclusive relationship. Father was present for [Child’s] birth,
       and he tried to assist Mother in caring for [Child] following her
____________________________________________


2
  Although both Father and Mother presented other witnesses, these were
the witnesses whose testimony the trial court found significant.



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     birth. Father stated that he helped assemble [Child’s] crib,
     purchased clothing and baby items for [Child] and tried to assist
     Mother in feeding, clothing and comforting their child.

            Although Father and Mother tried to maintain a cordial
     relationship, their efforts were strained by the presence of
     Mother’s current husband, [J.M.]. When Father’s relationship
     with Mother began to deteriorate, Father filed a custody
     complaint in an effort to secure a steady visitation schedule
     between himself and [Child].

           Mother notified Father of her desire to move to Austin,
     Texas in the Fall of 2013. Father stated that Mother was vague
     about her intentions, and she seemed to only be considering the
     idea. Father stated that the petition to modify custody, most
     recently filed, was not initiated by his fear that Mother would
     move, but rather, because Father was concerned that [Child]
     was arriving at his residence with scratches, bug bites and lice
     on her body. Father stated that he felt Mother was not keeping
     her home clean, and that the animals in Mother’s residence were
     causing [Child’s] ailments.

           [Child’s] paternal grandmother, [R.M.], testified that
     [Child] has her own room at her residence. Father is the
     primary caregiver for [Child] when she is with Father, but [R.M.]
     enjoys assisting Father when [Child] is with him. [R.M.] stated
     that she has serious concerns about Mother’s household because
     [Child] frequently came to her house with lice, bug bites, and
     severe rashes on her private parts. [R.M.] contacted Children
     and Youth Services of Lawrence County regarding her concerns
     and they proceeded to conduct an evaluation.

             Gary Zarilla was the Children and Youth caseworker
     assigned to [Child’s] case. Mr. Zarilla stated that when he
     initially visited Mother’s residence, there was a lot of garbage
     and clutter. There were dishes piled up in the sink and several
     pets living in the house. Mr. Zarilla generally described Mother’s
     house as “overwhelming”, but he did not observe any definitive
     safety concerns. Mr. Zarilla asked Mother to try and improve the
     overall appearance and cleanliness of her house.            Mother
     complied with Mr. Zarilla’s request, and the conditions were
     drastically remedied upon Mr. Zarilla’s follow-up visit. Mr. Zarilla
     did not initiate any dependency proceedings on [Child’s] behalf.


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             Mother testified that she has been the primary care giver
      [sic] for [Child] since [Child’s] birth. Following [Child’s] birth,
      Mother returned to her mother’s residence and lived with
      maternal grandmother until Mother obtained a residence with
      [J.M.]. Mother and [J.M.] subsequently married on August 28,
      2014 and had a child together on November 28, 2014. Mother
      stated that her desire to relocate is primarily based upon a job
      opportunity provided to her husband by her mother-in-law.
      Mother stated that she does not perceive Father as being a good
      provider for [Child], considering the fact that Father is
      completely dependent upon his parents for his financial needs.
      Mother believes that she and her husband could better provide
      for [Child] if they relocated to Austin, Texas because her
      husband would be working for his family’s business and earning
      in excess of $3,000.00 per month.

            Mother wishes to further her education and believes this
      could be more easily accomplished if she was permitted to
      relocate with [Child] to Austin, Texas. Mother stated that she is
      amicable [sic] to the idea of living with her in-laws, and Mother
      believes that [J.M.] and his family could provide an adequate
      support system for her children subsequent to moving.

             [J.M.], Mother’s husband, also testified on Mother’s behalf.
      [J.M.] is twenty-three years old. In addition to Mother and
      [J.M.’s] child, [J.M.] stated that he loves and cares for [Child].
      However, [J.M.] is also conscientious of his role as her step-
      father. [J.M.] does not intend to replace Father as a male figure
      in [Child’s] life.

            [J.M.] would like to move with his family to Austin, Texas
      so that he could work for his mother in her family restaurant.
      [J.M.] proposed that he and Mother could move into his mother’s
      residence during their transition, and that they could save
      money to buy their own home. [J.M.] believes that his family
      could provide an adequate support system for Mother and her
      children.

Trial Court Opinion, 5/12/15, at 2-6.

      In the order entered on May 12, 2015, the trial court denied Father’s

petition to modify the existing custody order and denied Mother’s petition to


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J-A35028-15


relocate to Austin, Texas, with Child.      On June 10, 2015, Mother filed a

notice of appeal along with a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

      In her brief on appeal, Mother raises five issues:

      Issue I. Whether the trial court erred in finding that the Mother
      failed to meet her burden of establishing that the relocation to
      Austin, Texas, would be in the child’s best interests and enhance
      the quality of life for the mother and the minor child[?]

      Issue II: Whether the trial court erred as a matter of law in
      failing to take into consideration all of the relocation factors as
      set forth in 23 Pa.C.S.A. § 5337(h) in finding that “any benefit
      bestowed by relocation to Austin, Texas, could not outweigh the
      detrimental impact suffered by limiting Father’s relationship with
      [Child] to summer and holiday visitations[?]”

      Issue III. Whether the trial court erred in finding that the Mother
      failed or was required to exhaust all alternatives in Lawrence
      County to attempt to provide a financially stable lifestyle for her
      family before attempting to relocate to Austin, Texas[?]

      Issue IV: Whether the trial court erred in failing to take into
      consideration as part of the mother’s request for relocation that
      the father currently provides very minimal, if any, financial
      support for the minor child[?]

      Issue V: Whether the trial court erred in finding that the
      father/daughter relationship could not be preserved if the
      mother relocated to Austin, Texas[?]

Mother’s Brief at 4 (full capitalization omitted).

      Initially, we observe that, as the custody trial in this matter was held

in March of 2015, the Child Custody Act, 23 Pa.C.S. § 5321 et seq. (the

“Act”), is applicable. C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa. Super. 2012)

(holding that if the custody evidentiary proceeding commences on or after


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the effective date of the Act, i.e., January 24, 2011, the provisions of the Act

apply).

      Our scope and standard of review is set forth below:

      In reviewing a custody order, our scope is of the broadest type
      and our standard is abuse of discretion.          We 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, we must defer to
      the presiding trial judge who viewed and assessed 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.

C.R.F., 45 A.3d at 443 (citation omitted).

      We have also stated:

      [t]he discretion that a trial court employs in custody matters
      should be accorded the utmost respect, given the special nature
      of the proceeding and the lasting impact the result will have on
      the lives of the parties concerned. Indeed, the knowledge
      gained by a trial court in observing witnesses in a custody
      proceeding cannot adequately be imparted to an appellate court
      by a printed record.

Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (quoting

Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)).

      In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), we

observed the following regarding an abuse of discretion standard:

            Although we are given a broad power of review, we are
      constrained by an abuse of discretion standard when evaluating
      the court’s order. An abuse of discretion is not merely an error

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J-A35028-15


      of judgment, but if the court’s judgment is manifestly
      unreasonable as shown by the evidence of record, discretion is
      abused. An abuse of discretion is also made out where it
      appears from a review of the record that there is no evidence to
      support the court’s findings or that there is a capricious disbelief
      of evidence.

Id. at 18-19 (quotation and citations omitted).

      With any custody case decided under the Act, the paramount concern

is the best interests of the child. See 23 Pa.C.S. §§ 5328, 5338. Section

5338 of the Act provides that, upon petition, a trial court may modify a

custody order if it serves the best interests of the child. 23 Pa.C.S. § 5338.

      Section 5323 of the Act provides for the following types of custody

awards:

      (a) Types of       award.—After considering the factors set forth in
      section 5328        (relating to factors to consider when awarding
      custody), the       court may award any of the following types of
      custody if it is   in the best interest of the child:

          (1) Shared physical custody.

          (2) Primary physical custody.

          (3) Partial physical custody.

          (4) Sole physical custody.

          (5) Supervised physical custody.

          (6) Shared legal custody.

          (7) Sole legal custody.

23 Pa.C.S. § 5323.




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      In A.V. v. S.T., 87 A.3d 818 (Pa. Super. 2014), this Court explained

the trial court’s duty to explain its custody decision. We opined:

      “All of the factors listed in section 5328(a) are required to be
      considered by the trial court when entering a custody order.”
      J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis
      in original). Section 5337(h) requires courts to consider all
      relocation factors. E.D., supra at 81. The record must be clear
      on appeal that the trial court considered all the factors. Id.

            Section 5323(d) provides that a trial court “shall delineate
      the reasons for its decision on the record or in open court or in a
      written opinion or order.” 23 Pa.C.S.A. 5323(d). Additionally,
      “section 5323(d) requires the trial court to set forth its
      mandatory assessment of the sixteen [Section 5328 custody]
      factors prior to the deadline by which a litigant must file a notice
      of appeal.” C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013),
      appeal denied, 70 A.3d 808 (Pa. 2013). Section 5323(d) applies
      to cases involving custody and relocation. A.M.S. v. M.R.C., 70
      A.3d 830, 835 (Pa. Super. 2013).

            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 decision is based on those considerations.”
      M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013), appeal
      denied, 68 A.3d 909 (Pa. 2013).        A court’s explanation of
      reasons for its decision, which adequately addresses the relevant
      factors, complies with Section 5323(d). Id.

A.V., 87 A.3d at 822-823.

      Moreover, “[w]hen a custody dispute involves a request by a party to

relocate, we have explained ‘there is no black letter formula that easily

resolves relocation disputes; rather, custody disputes are delicate issues that

must be handled on a case-by-case basis.’” C.M.K. v. K.E.M., 45 A.3d 417,

421 (Pa. Super. 2012), (quoting Baldwin v. Baldwin, 710 A.2d 610, 614

(Pa. Super. 1998)). As the party proposing the relocation, Mother had the

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burden of establishing that the relocation will best serve the interests of the

children as shown under the factors set forth in section 5337(h). C.M.K., 45

A.3d at 427 n.1; 23 Pa.C.S. § 5337(i)(1).      Each party had the burden of

establishing the integrity of his or her motives in either seeking or opposing

relocation. C.M.K., 45 A.3d at 427 n.1; 23 Pa.C.S. § 5337(i)(2).

      In J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011), our Court

explained that in any child custody case, the primary concern is the best

interests of the Child. Section 5328(a) of the Act sets forth the best interest

factors that the trial court must consider. E.D. v. M.P., 33 A.3d 73, 80-81,

n.2 (Pa. Super. 2011). Further, with regard to relocation, “Section 5337(h)

mandates that the trial court shall consider all of the factors listed therein,

giving weighted consideration to those factors affecting the safety of the

child.” E.D., 33 A.3d at 81 (emphasis in original). Here, because Mother is

seeking to relocate with Child, the trial court was required to consider both

the section 5328(a) custody/best interest factors and the section 5337(h)

relocation factors.

      The trial court addressed the custody/best interest factors under

section 5328(a), and found:

      (1) Which party is more likely to encourage and permit frequent
      and continuing contact between the child and another party.

            Father and Mother both encourage and permit contact
      between the other party and the minor child. Father and Mother
      have testified to times when they were able to modify the
      [c]ourt[-]ordered custody arrangements without incident, but


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     Father does become frustrated that Mother is not willing to
     comply with Father’s requests.

     (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.

          There has not been sufficient evidence to warrant a finding
     of abuse committed by either party toward each other or the
     minor child.

     (3) The parental duties performed by each party on behalf of the
     child.

           Both Mother and Father perform all the necessary tasks
     associated with raising the minor child when they are exercising
     custody. Mother and Father both play a strong role in caring for
     the minor child since the minor child’s birth. Mother and Father
     both demonstrate a present willingness and capability to care for
     [Child].

     (4) The need for stability and continuity in the child’s education,
     family life and community life.

           The minor child has always lived primarily with Mother, but
     Father enjoys a liberal partial custody schedule. The parties
     currently live very close to each other, and this provides for
     easier transitions during custody exchanges. [Child] is less than
     three years old, so the [c]ourt’s consideration of [Child’s] need
     for stability and continuity is limited to [Child’s] home life at
     Mother’s residence and Father’s residence.

     (5) The availability of extended family.

           Father has a very strong support system in the Lawrence
     County area.      Father lives with his parents, who play a
     substantial role in [Child’s] upbringing. Mother’s family support
     in Lawrence County is limited to maternal grandmother and
     Mother’s current husband, [J.M.].

     (6) The child’s sibling relationships.


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           [Child] is the only child born between the parties.
     Mother’s second child, [L.M., a son born in November of 2014] to
     her current husband is [Child’s] half-sibling. Although L.M. is
     very young, the testimony established that [Child] enjoys being
     around her half-brother. Any custody arrangement entered
     must foster this relationship.

     (7) The well-reasoned preference of the child, based on the
     child’s maturity and judgment.

           Based on the child’s age, this factor shall not be
     considered by the [c]ourt in reaching a determination.

     (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.

            The testimony presented did not include sufficient evidence
     to support a finding regarding a party’s attempt to turn the child
     against the other parent. The [c]ourt will not consider this factor
     in its determination.

     (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.

            Both Mother and Father are able to provide the minor child
     with a loving and stable environment. Furthermore, the [c]ourt
     is satisfied that both Mother and Father care for the minor child’s
     emotional needs while she is in their custody.

     (10) Which party is more likely to attend to the daily physical,
     emotional, developmental, educational and special needs of the
     child.

            Similar to the [c]ourt’s determination under subsection
     nine, both Mother and Father are able to attend to the minor
     child’s daily needs.    The [c]ourt recognizes that Father is
     extremely dependent upon his parents for his own physical,
     educational and financial needs, and thus, the minor child is also
     when she is in Father’s custody. Alternatively, however, Mother
     is dependent upon her husband because [J.M.] is the only source
     of income in Mother’s residence. The parties are extremely


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     young and their dependence upon others is indicative of their
     youth.

     (11) The proximity of the residences of the parties.

           The parties currently reside within two city blocks from one
     another. Father and Mother can easily walk to the other’s
     residence. This fact promotes a very liberal custody schedule
     even when [Child] becomes of school age because the parties
     reside in the same school district.

     (12) Each party’s availability to care for the child or ability to
     make appropriate child-care arrangements.

           The [c]ourt is satisfied that both parties are able to care
     for the minor child while she is in their custody. Father’s
     testimony establishes that Father has a stronger support system
     because of his parents and extended family. Mother, however,
     can rely upon [J.M.] for assistance, and after observing [J.M.]
     during his testimony, the [c]ourt finds [J.M.] to be very sincere
     and dependable in this regard.

     (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.

           Each party testified that there can be high levels of conflict
     and poor communication between them. Mother has displayed
     poor temperament when communicating with Father, which in
     turn causes Father to be despondent. Mother and Father have
     attended communication/co-parenting counseling, which helped
     them for a short period of time.

     (14) The history of drug or alcohol abuse of a party or member
     of a party’s household.

           Father previously had one Driving While Under the
     Influence charge in 2013. Father completed the ARD program
     without further incident. Mother has no involvement with drug
     abuse or improper alcohol use.




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       (15) The mental and physical condition of a party or member of
       a party’s household.

             Mother and Father are both in good physical and mental
       health.

Trial Court Opinion, 5/12/15, at 13-18 (emphasis in original).3     Moreover,

the trial court addressed the relocation factors set forth in section 5337(h),

finding as follows:

       (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.

             [Child] has a very strong relationship with Mother and
       Father. Mother has served as the primary caregiver since [Child]
       was born, but Father has been actively involved in parenting
       [Child] following her birth. The evaluation submitted by Dr.
       Lunnen establishes that [Child’s] relationship with each parent is
       healthy and well-established.

       (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.

             [Child] is presently three years old. She is developing
       normally and appropriately; and, therefore, has no special
       needs. The [c]ourt does believe[,] however, that [Child] is old
       enough to be cognitive of the drastic changes relocating to
       Austin, Texas would create. Mother’s proposed relocation will
       permit Mother to continue serving as [Child’s] primary caregiver,
____________________________________________


3
   Effective January 1, 2014, the statute was amended to include an
additional factor at 23 Pa.C.S. § 5328(a)(2.1) (providing for consideration of
child abuse and involvement with child protective services).         Although
applicable at the time of the custody hearings in this matter, there was no
evidence that would have required the trial court’s consideration of this
factor.



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     and [Child] is not old enough to experience a change in school
     system as a result of the move. The [c]ourt is concerned about
     the emotional impacts that [Child] could face because [Child]
     has a very strong relationship with Father and Father’s family.
     This relationship would be negatively impacted by relocating
     because of the distance between New Castle, Pennsylvania and
     Austin, Texas.

     (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.

            This factor creates significant concerns for the [c]ourt in
     evaluating Mother’s request to relocate. Father currently enjoys
     custody of [Child] every Wednesday evening and every
     weekend.      The parties could never maintain such a liberal
     visitation schedule if Mother moves with the minor child because
     of the distance and limited financial resources available to the
     parties.    Although Mother proposes that Father could have
     extensive summer and holiday visitation, Mother could not
     articulate a viable plan to pay for the child’s airfare or alternative
     transportation expenses. Even if the custody changes were
     effectuated, summer and holiday visitation could not adequately
     perverse [sic] Father’s relationship with [Child] considering the
     fact that Father typically sees [Child] three to four days a week.

     (4) The child’s preference, taking into consideration the age and
     maturity of the child.

          Given the child’s young age, the parties did not offer the
     minor child’s testimony in support of their respective positions.
     Therefore, this factor is not before the [c]ourt for consideration.

     (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.

            There was insufficient evidence presented during these
     proceedings to warrant a finding that either party has tried to
     inhibit the minor child’s relationship with the opposing party. In
     fact the [c]ourt received testimony that both Father and Mother
     place value on the other party in their parental role. The [c]ourt
     reaches this conclusion despite Father’s contention that Mother

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     has been verbally aggressive and oppressive during several
     custody exchanges. The [c]ourt believes the disagreements
     sustained by the parties are not untypical of young parents who
     have opposing beliefs regarding the custody of a mutual child.

     (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.

            Mother’s proposed relocation is premised upon her
     husband’s desire to obtain employment at his family’s
     restaurant.     [J.M.] testified that his mother offered him a
     position as head chief [sic]/manager of her restaurant, which
     would be a substantial increase in wages for [J.M.]. [J.M.]
     testified as to his efforts to obtain comparable employment in
     the Lawrence County and surrounding areas. [J.M.] stated that
     he was only able to secure a job at Wal-[M]art making $9.20 per
     hour.     [J.M.] typically works thirty-three hours per week.
     [J.M.’s] current income is inadequate to financially support all of
     his family’s needs, and [J.M.] and Mother rely on medical
     assistance and food stamps.

            Mother believes that if she could move her family to
     Austin, Texas, [J.M.’s] increase in income could promote her
     family’s financial security. Mother even speculates that she
     might be able to attend college after they move and become
     stabilized.

           In considering the benefits proposed by Mother, the
     [c]ourt believes that, other than the possibility of improved
     financial security, Mother’s quality of life would not drastically
     change. Mother is currently a full-time caregiver for her two
     children and homemaker. This would not change if Mother
     relocated. Mother’s support system is primarily based in the
     local areas, and she would be completely dependent on [J.M.’s]
     extended family if they moved. If Mother and [J.M.] moved,
     they would be living with [J.M.’s] parents until they secured
     enough savings to purchase their own home.

           Additionally, the [c]ourt believes that Mother’s desire to
     attend college is not dependent upon moving, and that Mother
     could fulfill her desire to further her education locally.




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      (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.

            The [c]ourt’s analysis under this factor is very similar to its
      preceding discussion under factor six. [Child] clearly has the
      opportunity to enjoy increased financial stability through her
      family, but it comes at the cost of leaving a well[-]established
      support system and relationship with Father. Although Mother
      did present testimony as to her proposed household and
      surrounding school district, the [c]ourt cannot conclusively infer
      that either would be better than Mother’s current household and
      the schooling currently available to [Child].

      (8) The reasons and motivation of each party for seeking or
      opposing the relocation.

             Mother’s desire to relocate is sincere; Mother believes that
      if her husband can obtain better employment, Mother and [J.M.]
      could create a better lifestyle for their children.

             Alternatively, Father’s objections to Mother’s relocation are
      sincere. Father believes that if Mother moves to Austin, Texas
      with [Child] he will not play a strong parental role in [Child’s]
      daily life.

      (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.

            There has been no evidence regarding abuse committed by
      either party or that the minor child is at risk of harm in either
      household.

Trial Court Opinion, 5/12/15, at 8-13 (emphasis in original).

      Mother argues that the trial court erred in failing to grant her request

to relocate with Child to Austin, Texas, because the relocation was in Child’s

best interest, as it would enhance the quality of life for both her and Child.

Mother claims that the most significant benefits of relocating would be that


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Mother’s husband, J.M., could work for his family’s restaurant, thereby

increasing the family income from approximately $900 per month to $3,000

per month. She asserts J.M. would have permanent employment as a chef

at his family’s restaurant, Mother could be a stay-at-home mother for Child

and her other child, and Mother would have the potential to continue her

education in a Texas college. Mother’s Brief at 8-16.

      The trial court considered each of these matters, and determined that

they were not due any additional weight.        As we explained above, with

regard to issues of credibility and weight of the evidence, we must defer to

the presiding trial judge who viewed and assessed the witnesses first-hand.

C.R.F., 45 A.3d at 443. We conclude that the trial court’s conclusions are

not unreasonable under the circumstances presented here.            As 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, we will

not do so here. Id.

      In her second issue, Mother contends that the trial court erred in

finding that any benefit bestowed by relocation did not outweigh the

potential detrimental impact suffered by limiting Father’s relationship with

Child to summer and holidays. Mother’s Brief at 16-17. Mother claims that

this finding gives greater weight to one specific factor and fails to consider

all of the relocation factors equally. Id.




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      We find no merit to this contention.    After review of the trial court’s

opinion, it is readily apparent that the trial court did not improperly give

weight to one factor or fail to consider the other relocation factors. It was

within the trial court’s province to weigh the relocation factors and assess

Child’s best interest. C.R.F., 45 A.3d at 443.

      In her third issue, Mother asserts that the trial court erred in requiring

Mother to exhaust all alternatives in Lawrence County, Pennsylvania, prior to

attempting to relocate, as this is not a requirement prior to a party

requesting relocation, and puts an unfair restriction or condition on the

party. Mother’s Brief at 17-19. Again, we find no merit to this contention.

The trial court did not place any requirement on Mother in addition to the

statutory relocation factors, but rather, found that the evidence related to

those factors weighed against Mother. C.R.F., 45 A.3d at 443.

     In her fourth issue, Mother argues that the trial court erred in failing to

take into consideration, as one of the relocation factors, that Father

currently provides only minimal financial support for Child, in the amount of

$100 a month.     Mother’s Brief at 19-20.       In assessing factor ten of the

custody/best interest factors under section 5328(a), the trial court stated:

      The [c]ourt recognizes that Father is extremely dependent upon
      his parents for his own physical, educational and financial needs,
      and thus, the minor child is also when she is in Father’s custody.
      Alternatively, however, Mother is dependent upon her husband
      because [J.M.] is the only source of income in Mother’s
      residence.     The parties are extremely young and their
      dependence upon others is indicative of their youth.


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Trial Court Opinion, 5/12/15, at 16.

      In its opinion that accompanied the order denying Mother’s petition to

relocate, the trial court explained, “The [c]ourt believes that if Father

finishes college, he will be in a better position to achieving independence.”

Trial Court Opinion, 5/12/15, at 20. We find no merit to Mother’s contention

that the trial court failed to consider the amount of financial support that she

receives from Father for Child.          The trial court properly weighed this

evidence as one of the custody/best interest factors in relation to other

considerations under 23 Pa.C.S. § 5337(h)(10). As repeatedly stated, it was

within the trial court’s province to weigh the relocation factors and assess

Child’s best interest. C.R.F., 45 A.3d at 443.

      In her fifth issue, Mother contends that the trial court erred in finding

that the father-daughter relationship could not be preserved if Mother

relocated to Austin, Texas, because there was nothing in the testimony to

indicate that this relationship could not be preserved with the alternative

partial custody offered by Mother. Mother’s Brief at 20-21. In addressing

this issue, the trial court concluded:

            After reviewing all of the statutory factors pertaining to
      Mother’s request to relocate, in addition to the statutory factors
      pertaining to Father’s request for modification, the [c]ourt
      determines that Mother’s request to relocate must be denied.
      The [c]ourt bases its determination on the fact that [Child] has a
      very well-established relationship with both Father and Mother.
      [Child] enjoys regular and frequent contact with Father and his
      extended family, and the [c]ourt believes that any benefit
      bestowed by a relocation to Austin, Texas could not outweigh the
      detrimental impact suffered by limiting Father’s relationship with

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J-A35028-15


     [Child] to summer and holiday visitation.        In reaching this
     determination, the [c]ourt further considered the case of C.M.K.
     v. K.E.M., 45 A.3d 417 (Pa. Super. 2012). In C.M.K., the
     Superior Court of Pennsylvania affirmed the trial court’s ruling
     that petitioner’s/mother’s request to relocate was not in the
     minor child’s best interest because the relocation would
     substantially impair the respondent’s/father’s ability to preserve
     his strong parental relationship with the minor child. Id. at 427.
     The [c]ourt considered the fact that respondent/father was
     extremely involved in the minor child’s life and participated in
     many of the child’s daily activities.               Id. Although
     petitioner/mother[’s] request to relocate was from Grove City,
     Pennsylvania to Erie, Pennsylvania, a distance of only 68 miles,
     the trial court held, and the Superior Court agreed, that such a
     move presented de minimis improvements to the minor child’s
     overall quality of life. Id.

           Furthermore, the [c]ourt finds that Mother’s request is
     primarily premised upon [J.M.’s] desire to pursue a career
     opportunity with his family’s restaurant.         While Mother’s
     objectives are sincere, the [c]ourt is not satisfied that Mother
     has exhausted reasonable alternatives to providing a more
     financially stable lifestyle for her family. Many of the additional
     benefits referenced by Mother could be achieved locally and are
     not subjective to relocation entirely.

            Additionally, in evaluating Father’s request to modify the
     current Custody Order, the [c]ourt believes that a modification is
     not appropriate at this time. Father wishes to implement a 50-
     50 custody schedule; however, Father has extensive
     commitments to his college education. Father attends classes
     daily, and the [c]ourt cannot realistically implement an equal
     custody schedule knowing that Father will not be available to
     care for [Child] for substantial periods of time. The [c]ourt
     believes that if Father finishes college, he will be in a better
     position to achieving independence.

            The [c]ourt accredits Mother with being [Child’s] primary
     caregiver, and the [c]ourt believes that in order to secure a
     consistent schedule, this arrangement should continue for a
     period of time. The [c]ourt believes that the issues raised by
     each party during these proceedings should cause the parties to
     strongly re-evaluate some of their parenting choices, and hopes
     that, following the entry of this Opinion, the parties could agree

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J-A35028-15


       to begin a fresh start to their co-parenting and communication
       methods.

Trial Court Opinion, 5/12/15, at 18-20.

       We conclude that Mother’s argument lacks merit.            The trial court

properly considered all of the custody/best interest and relocation factors

and determined that Mother failed to sustain her burden of establishing that

the third relocation factor, 23 Pa.C.S. § 5337(h)(3), should be weighted in

Mother’s favor. The trial court held:

       Although Mother proposes that Father could have extensive
       summer and holiday visitation, Mother could not articulate a
       viable plan to pay for the child’s airfare or alternative
       transportation expenses. Even if the custody changes were
       effectuated, summer and holiday visitation could not adequately
       perverse [sic] Father’s relationship with [Child] considering the
       fact that Father typically sees [Child] three to four days a week.

Trial Court Opinion, 5/12/15, at 9.

       The trial court properly weighed this evidence as part of its

assessment of the first, second, and third relocation factors. 23 Pa.C.S. §

5337(h)(1), (2), and (3). It was within the trial court’s province to weigh

the relocation factors and assess Child’s best interest.      C.R.F., 45 A.3d at

443.

       In her brief, Mother sets forth the ten relocation factors, casting the

facts in a light most favorable to herself. Mother asserts:

             When evaluating all of the factors associated with the
       relocation and in viewing those as to what is in the best interests
       of the minor child, . . . it clearly establishes that the Trial Court
       erred in finding that the mother failed to meet her burden of


                                      - 22 -
J-A35028-15


      establishing that the relocation to Austin, Texas, was in the
      minor child’s best interests.

Mother’s Brief at 15.

      Mother argues that the trial court improperly considered the C.M.K.

case as precedent, and she argues that C.M.K. is inapplicable to the instant

appeal.   We do not agree.     Although Mother desires that the relocation

factors are weighted in her favor, the trial court must consider all of the

factors on a case-by-case basis and make a decision that is in the best

interest of the child, taking into account the child’s physical, intellectual,

moral, and spiritual well-being.   S.J.S. v. M.J.S., 76 A.3d 541, 554 (Pa.

Super. 2013) (citation omitted) (emphasis added). In S.J.S., a panel of this

Court affirmed the denial of a mother’s petition to relocate with her two

minor daughters from Erie County, Pennsylvania, to Buckingham, Bucks

County, Pennsylvania. The panel stated:

            No doubt, the cost and logistics of [the father] maintaining
      contact with his daughters from across the state would weigh
      against relocation unless other factors militated strongly in favor
      [of relocation]. We agree with the trial court that there is little
      to favor relocation here. The children are doing well in school
      and their activities, they have a strong bond with their [f]ather
      and their extended families in Erie, [the mother’s] employment
      prospects in Buckingham are nebulous at best, and [the
      mother’s] motives for moving do not appear to be driven by her
      children’s best interests.

S.J.S., 76 A.3d at 554.

      After a careful review of the record in this matter, including the

testimony and documentary evidence, the parties’ briefs, and the relevant


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law, we find no error or abuse of discretion on the part of the trial court in

finding that Mother failed to sustain her burden in the present appeal. As in

S.J.S., Mother failed to present sufficient evidence to convince the trial court

that her relocation with Child to Austin, Texas, was driven by Child’s best

interest, as opposed to her own. Accordingly, we affirm the order of the trial

court denying Mother’s petition for relocation.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/5/2016




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