J-S08014-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.C.                                                IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

K.W.

                            Appellant                   No. 1347 WDA 2016


                Appeal from the Order Entered August 11, 2016
              In the Court of Common Pleas of Washington County
                       Civil Division at No(s): 2013-1130

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and SOLANO, J.

MEMORANDUM BY SOLANO, J.:                              FILED MARCH 27, 2017

        Appellant, K.W. (“Mother”) is the mother of the two children

(“Children”) at issue in this custody proceeding, I.C.1 (born November 2010)

and J.C.2 (born April 2012).          She appeals from the final order resolving

Mother’s motion to modify custody in favor of Appellee, J.C. (“Father”).

Mother contends that the court disregarded record evidence in her favor and

that the children’s best interests are not served by Father having primary

custody. We affirm.

        We state the facts and procedural history as set forth in the trial

court’s opinion.

____________________________________________
1
    The record sometimes refers to I.C. as B.C., a nickname.
2
  Both this child and Father share the initials “J.C.” This memorandum uses
“J.C.” to refer only to the child.
J-S08014-17


          Before the court is a custody dispute involving two (2)
       children, [I].C., age 5, and J.C., age 4. The parties
       dispute primary physical custody of their daughter and
       son. Such dispute has been ongoing since February of
       2013 and has been the subject of several prior interim and
       final orders of custody.

          On February 28, 2013[, Father] filed a complaint for
       shared physical and legal custody. On March 27, 2013[,
       Father] filed a counter-affidavit objecting to a proposed
       relocation by [Mother]. On April 19, 2013[, Mother] filed
       an “Emergency Motion to Relocate.” In this emergency
       motion, she represented that she had lost employment at
       the Meadows Casino and that she had encountered a
       “housing crisis.” [Mother] requested that she be permitted
       to move with her children from Canonsburg, Washington
       County to Irwin, Westmoreland County.

          On April 19, 2013 the Hon. Gary Gilman granted
       [Mother] emergency relief permitting her move to Irwin
       and issued an interim order of custody. Pursuant to the
       interim order, [Father] had physical custody of the children
       starting each Thursday evening until Sunday. [Mother]
       had physical custody of the children at all other times.

          On April 26, 2013, [Mother] filed a formal petition
       seeking relocation of the children to Fort Worth, Texas. On
       June 6, 2013 [Mother] sought a change to Judge Gilman’s
       interim order. [Mother] requested that the children be in
       her custody any night that [Father] was not available to
       have the children reside in his home. Judge Gilman denied
       this requested relief. However, Judge Gilman directed that
       the paternal grandparents should not smoke in the
       presence of the children. On July 26, 2013, [Mother]
       withdrew her petition to relocate to Texas.

          On August 23, 2013 upon the recommendation of a
       custody conference officer, Judge Gilman issued an order
       of custody. Pursuant to this order, the parties shared
       physical and legal custody of the children on a recurring
       two (2) week schedule. In “Week A” [Father] had physical
       custody of the children from Thursday until Sunday. In
       “Week B” [Father] had physical custody from Thursday


                                  -2-
J-S08014-17


       until Monday.   The children resided with [Mother] at all
       other times.

          On October 1, 2013 [Mother] requested a custody trial
       de novo “nunc pro tunc.” Judge Gilman denied the request
       as being untimely.

           On or about April 16, 2014[, Mother] served notice of
       her intention to relocate with the children to Baltimore,
       Maryland.    On May 6, 2014[, Father] filed a counter
       affidavit opposing [Mother]’s intention to relocate from
       Irwin, Pennsylvania to Maryland. This court conducted a
       relocation hearing on July 10, 2014. On July 18, 2014,
       this court issued an opinion and order approving
       [Mother’s] relocation to Baltimore, Maryland. In the same
       order, this court issued an interim order of custody
       providing the parties with shared physical and legal
       custody, with the parties having a two (2) week on and
       two (2) week off schedule. This court scheduled a further
       hearing to consider all evidence relevant to a modified
       order of custody as required by 23 Pa.C.S.A. § 5337(f).

          On August 5, 2014 [Father] filed a written request for
       reconsideration. On September 11, 2014 this court denied
       [Father]’s request for reconsideration and issued a
       modified order of custody. The modified order of custody
       was stipulated to and agreed upon by the parties. The
       modified order of custody incorporated this court’s July 18,
       2014 order for shared custody on a two week on two week
       off schedule and portions of Judge Gilman’s order of
       August 28, 2013.

           Within eight months, on March 17, 2015[, Mother] filed
       a motion seeking to modify the previously agreed upon
       custody order.          On February 18, 2016         upon
       recommendation of the custody conference officer this
       court issued a new order of custody. This new order
       provided for the parties to share legal custody. However,
       primary physical custody during the school year was
       awarded to [Father] and periods of partial custody on the
       first, third and fourth weekend of each month was granted
       to [Mother]. During the summer break from school the
       parties returned to sharing physical custody on a two (2)


                                  -3-
J-S08014-17


           week on and two (2) week off schedule. On March 3,
           2016, [Mother] filed a timely request for a trial de novo.

              Following a pre-trial conference on April 8, 2016[,] this
           court scheduled the trial de novo for June 27 and June 28,
           2016. The parties appeared and offered testimony of
           seven witnesses including both parties. Due to the length
           of testimony [Father]’s testimony could not be completed.
           The parties returned on July 15, 2016[,] to complete the
           presentation of evidence which included testimony from
           [Father], and rebuttal evidence from [Mother].

Trial Ct. Op., 8/12/16, at 1-4.3

        On August 11, 2016, the court issued an eight page final opinion and

order establishing the parties’ custody of the Children. The court awarded

primary physical custody to Father during the school year, with periods of

partial custody granted to Mother during the first and third full weekends of

each month. Trial Ct. Op., 10/7/16, at 24-25.4 During the summer months,

Mother was provided with seven weeks of custody. Id. at 25. Mother timely

appealed and filed a Pa.R.A.P. 1925(a)(2) statement.         The court issued a

responsive opinion that also incorporated by reference its August 12, 2016

opinion. Id.

        Mother raises the following issues:

           1. Did the lower court err by finding that the evidence
           and/or testimony, as shown by the record, favors Father


____________________________________________
3
    This was the date the court served its opinion on the parties.
4
 Mother was also granted custody during the second weekends of the
months of October, January, and March.



                                           -4-
J-S08014-17


         and supports the finding that Father should have primary
         physical custody?

         2. Did the lower court, more particularly, err in finding that
         the custody factors in 23 Pa.C.S.A. § 5328 favor Father by
         determining the following:

            a. [Father] has the better ability to provide stability and
            continuity; . . .

            b. [Father’s] extended family, weighted in [Father’s]
            favor, provides more support; . . .

            c. [Father] will provide the same or similar access to
            the children as [Mother] did.

Mother’s Brief at 11 (citations omitted).

            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.

D.K. v. S.P.K., 102 A.3d 467, 478 (Pa. Super. 2014) (citation omitted).

      We summarize Mother’s arguments for both of her issues, which are

interrelated.   She lists each of the statutory factors that a court must

consider in evaluating custody and identifies evidence for most of the factors




                                      -5-
J-S08014-17


that in her view, favor awarding custody to her.5 We conclude Mother is not

entitled to relief.

       We set forth the statutory factors considered by the court in

determining custody:

          § 5328. Factors to consider when awarding custody

          (a) Factors.—In ordering any form of custody, the court
          shall determine the best interest of the child by
          considering     all  relevant   factors,  giving    weighted
          consideration to those factors which affect the safety of the
          child, including the following:

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

              (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.

              (2.1) The information set forth in section 5329.1(a)
              (relating to consideration of child abuse and
              involvement with protective services).

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

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

              (5) The availability of extended family.

____________________________________________
5
  The parties agree that some factors are not at issue, e.g., 23 Pa.C.S. §
5328(a)(2), which states the court should consider whether there was past
or present child abuse.



                                           -6-
J-S08014-17


           (6) The child’s sibling relationships.

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

           (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.

           (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.

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

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

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

           (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.

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

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

           (16) Any other relevant factor.

23 Pa.C.S. § 5328(a). In addition, “[i]n a custody case where neither parent

is relocating, but the children stand to move a significant distance, trial

courts should still consider the relevant factors of section 5337(h) in their

section 5328(a) best interests analysis.”    D.K., 102 A.3d at 476.   In this

                                     -7-
J-S08014-17


respect, “[t]rial courts should also consider those relevant factors of section

5337(h) that are not otherwise encompassed directly or implicitly by the

section 5328(a) factors pursuant to the catchall provision of section

5328(a)(16).” Id. at 476-77. The non-duplicative Section 5337(h) factors

are:

            (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.

            (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.

                                   *    *    *

            (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.

                                   *    *    *

            (10) Any other factor affecting the best interest of the
            child.

23 Pa.C.S. § 5337(h).

       After careful consideration of the record, which includes almost 700

pages of testimony, the parties’ briefs, and the decisions of the Honorable

Michael J. Lucas, we affirm on the basis of the trial court’s decisions. See

Trial Ct. Op., 10/6/16, at 2-5; Trial Ct. Op., 8/12/16, at 8-23 (holding that

(1) Mother did not credibly establish economic stability, (2) court properly

                                       -8-
J-S08014-17


weighed access to the parties’ extended family; and (3) although Father was

not the party most likely to encourage the children to speak with the other

parent, court tailored its order to assure Mother will have access to the

Children and to information about them).6        We add that the court did not

find that all the custody/relocation factors were overwhelmingly in Father’s

favor.     As Mother acknowledges, the court found three factors favored

Mother, three factors favored Father, and the remaining factors favored

neither party, favored both parties equally, or did not apply. Given the trial

court’s thorough review and our deferential standard of review regarding

credibility and weighing of the above factors, we cannot conclude, based on

this cold record, that the trial court’s findings are unreasonable. See D.K.,

102 A.3d at 478. Accordingly, we affirm the order below. The parties are

instructed to include the attached trial court decisions in any filings

referencing this Court’s decision.

         Order affirmed.




____________________________________________
6
  The trial court cited an unpublished memorandum of this Court as
persuasive authority. See Trial Ct. Op., 8/12/16, at 6 (citing L.E.C. v.
J.A.S., 1598 MDA 2014, 2015 WL 6951152 (Pa. Super., June 29, 2015)).
Our current Internal Operating Procedures do not permit such citation and
we therefore do not adopt the trial court’s reliance on L.E.C. See Reinoso
v. Heritage Warminster SPE LLC, 108 A.3d 80, 83 n.4 (Pa. Super.) (en
banc), appeal denied, 117 A.3d 298 (Pa. 2015).


                                           -9-
J-S08014-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/27/2017




                          - 10 -
                                                                                          Circulated 03/10/2017 03:41 PM



      ,.

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                                                                                                                     ./

               IN THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY, PENNSYLVANIA
                                                  · CIVILDMSION


             J-•c-•,
                             PLAINTIFF,                                                                   M
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                                                                                                        \, O\,•,

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             K ••
                     v.
                          W...
                                                               CP-63-CV-2013-1130
                                                               1347 WDA 2016
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                             DEFENDANT.                                                  ~-   ·.
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                                          Pa.R.A.P. 1925 Memorandum
                                                                  .

                    The Court submits 'its opinion pursuant to Pennsylvania Rule of Appellate.
I
) .          Procedure 1925(b). The Court incorporates its original trial Opinion and Order of ·
I



            August 11, 2016 by reference, The Court has set forth a comprehensive procedural

            history in its August 11, 2016 Opinion, and as such will not reproduce it here.

                                               Standard of Review

                    In reviewing a custody order, the Superior Court' scope of review is of the
                                                                                                        ..........
            broadest type and its standard is abuse of discretion ... Ultimately, the test is

            whether the trial court's conclusions are unreasonable as      shown by. the evidence               of

            record. The SuperiorCourt 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. M.O. v. J.T.R., 85 A.3d 1058 (Pa.Super, 2014), quoting V.B. v.

           J.E.B., 55 A.3d 1193, 1197 (Pa.Super. 2012)
I•



                                 )


             Furthermore, the Superior Court must accept the :findings of thetrial court.

      supported by competent evidence of record. In matters of credibility and weight of

      evidence, the Superior Court must defer to the trial, judge who presided over the

     proceedings and thus viewed the witnesses first hand. C.M.K. v. K.E.M., 45 A.3d .

      417 (Pa. Super. 2012), quoting E.D. v. M.P., 33 A.3d 73, 76 (Pa. Super. 2o'll).

           · Finally, "[tJhe parties cannot dictate the amount of weightthe trial court

     places on evidence. Rather, the paramount concern of the trial court is the best. ·

     interest of the child. Appellate interference is unwarranted if the trial court's

     consideration of the best interest of the child was careful and thorough, and [the

     Appellate Court is] unable to find any abuse of discretion. RM.G., Jr., v. F.M.G.,

     986 A.2d 124, 1237 (Pa. Super. 2009).

      The Appellant's "Errors" Complained of on Appeal are Disagreements with

                    the Court's Credibility and Factual Determinations

           In the majority of Ms. W...      's matters complained of on appeal fall

     soundly within the discretion of the trial court in its role as factfinder, These

     matters can be condensed into three discrete issues:

        1. Ms. W-'s        challenges to the Court's findings on the parties' ability to

           provide stability and continuity in the lives of the children; (Nos. 2, 3, 5, 6,

           7, 8 9, 10, and 11)




                                                 2
                              )

     2. Ms. W-'s        challenges to the Court's findings regardingextended family;

        ~OS.   4, 9, and 12) AND

    3. Ms. w-,'s        claim that Mr. Q        I will deny her the same access to the

        children that she provided him and that the Court failed to properly address

        this issue. (Nos. 13, 14)

 The. Court will" address the matters at they apply to these three issues.

                    · The parties' economic status·and stability

       The majority of Ms. W-~s         matters complained of on appeal center

around the Court's analysis of the economic situations as an element of their

capacity to ensure stability and continuity in the children's lives. The Court

addressed this matter in the sections of its opinion analyzing§ 5328(a)(4) and· (16).

Both Mr.    c-,    and Ms. W...       enjoy different circumstances compared to the

last time they appeared before the Court. However, the evidence on these factors

                      . Ms.   w.-    did not credibly show that her current

circumstances support long term stability and continuity in the lives of the              :....


children.

      Furthermore, the children's need for stability and continuity in their lives is

only a factor in the overall analysis of the best interests of the children. It was the

analysis of all applicable factors that led the Court to fashion its order of custody.




                                            3
                                                              .       )


                               Access to Extended Family

         The Court addressed Ms. W-'s matters in its August 11, 2016 Opinion

  and Order in the section ~alyzing § 5328(a)(5}, (12), and (16). The Court

 appropriately weighed the availability of extended family and the role that these

 family members
           .
                played in the lives of the children. Ms. W..              's . disagreement

 with these findings does not constitute an error of law. .

     Frequent and continuing contact between the child and the other party

       The Court address.ed the substance of Ms. W-'s             matters in the section~

 of its Opinion analyzing § 5328(a)(l) and (8). Ms.·w_.           argues that Mr .. C-

will not permit her the same level of contact with the parties' children that she

permitted him. She further argues
                              .
                                  that the Court erred in finding that her
                                                                  .




relationship with the children could be preserved by requiring Mr. C-                to do

the things she had done for him while the children were in her care.

      The Court found that both parties had demonstrated an ability to encourage

.and permit frequent and continuing contact, but that both had also behaved in a

negative manner towards and regarding each other. Although the Court found the

overall factor analysis to favor Mr. C'-'__ ,, it found this particular factor to favor

Ms.W ....

      In its Order of Custody, the Court requires Mr. C-to                supply Ms.

w..,..   with bi-weekly written updates concerning the children's school progress,

                                           4
         1.J
     .         (1   •



         .,




                          health, and extracurricular activities. The Order also requires the parties to

                          semiannually exchange photographs of the children with the parent so that the

                          children may display pictures of themselves with the other parent in their

                         bedrooms.··

                                No credible evidence was presented to the Court that Mr.         c...    would
                                                .                             .
                         deny Ms. W-           a place in the life of the parties' children. The Court engineered

                         its Order to place Ms. W ...       in regular physical custody of the children and to

                         give her regular contact with them when out of custody. If Mr. 0-is               to do as

                         Ms. W ...        speculates, he would not only expose himself to the penalties of

                         contempt of court for violating this Court's Order, but also provide new and

                         different evidence for anyfuture analysis of the§ 5238 factors should either party

                        · file for a modification.

                                                                  . Conclusion

                                For all   of the above-reasons,    the Court respectfully contends that it did not

                        abuse its discretion in crafting its Order of Custody, as it analyzed the best interests

                        of the parties' children utilizing the factors set forth in 23 Pa.C.S.A. § 5328.

                        Accordingly, the Court requests that its August 11, 2016,0pinion and Order of

                        Custody be affirmed.


                                                                                       BY TIIE COURT


                                                                        5
                                                                                         1uJJ,~                       J.


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      ....   l




                     MICHAELJ. LUCAS




\·.




  \
                 6
                             .,(····)
                              \·.~~··.




                         IN TIIB COURT OF COMM:ON PLEAS OF
                       WASHINGTON COUNTY, PENNSYLVANIA
                                           CIVIL DMSION



·J            c-- PLAINTIFF
     vs.                                                   NO . 2013..:1130

     Kl    •w••:                                                                            r
                                                                                             ~

                                                                                            fTI
                 DEFENDANT                                                                  0

                                         OPINION AND ORDER
           Before the court is a custody dispute involving two (2) children, B.C., age 5,

 and J.C. , age 4. The parties dispute primary physical custody of their daughter .

 and son .. Such ~spute has been ongoing since February of 2013 and has been the

 subject of several" prior interim and final orders of custody.

           On February 28, 2013 Mr.         c-   filed a complaint for shared physical and

 legal custody. On March 27, 2013 Mr. C--filedacounter-affidavit objecting

to a proposed relocation by Ms. w,,,.,,. On April 19, 2013 Ms.           w.-     filed an

"Emergency Motion to Relocate." In this emergency motion, she represented that

she had lost employment at the Meadows Casino and that she had encountered a




                                                                                                  I·
                                   )




  "housing crisis." Ms.     w_.. requested that           she bepermitted to move with her

  children from Canonsburg, Washington County to Irwin, Westmoreland County.

        On April 19, 2013 the Hon. Gary Gilman granted Ms. W-emergency

 relief permitting her move to Irwin and issued an interim order of custody.
            .                  .
 Pursuant to the interim order, Mr. C                had physical custody of the children

 starting each Thursday evening until Sunday. Ms.             w...,    had physical custody of

 the children at all other times.

       On April 2(5, 2013,.¥5.         w,-. filed a formal petition seeking relocation of
 the children to Fort Worth, 'Texas,        On June 6, 2013 Ms.      w,..      sought a change

to Judge Gilman 's interim order. Ms, W~                  requested that the children be in her

custody any night that Mr, C••was              not available to have the children reside in

his home. Judge Gilm~ denied this requested relief. However, Judge Gilman
                        .                                                  .
directed that the paternal grandparents should not smoke in the presence of the

children. On July 26, 2013, Ms.         w.,,,.   withdrew her petition to relocate to Texas.

      On August 23, 2013 upon the recommendation of a custody conference

officer, Judge Gilman issued an order of custody: Pursuant to this order, the

parties shared physical and legal custody of the children on a recurring two (2)




                                                 2    .
                                 )
                                                                          )

   from Thursday until Sunday. In "Week B" Mr. C-                   had physical custody from

   Thursday until Monday.' The children resided with Ms,           w..- at all other times.
          On October I, 2013 Ms."W-         requested a custody trial de novo "nunc pro

  tune," Judge Gilman denied the request        as being untimely.

          Ori or about April 16, 2014 Ms. W_,,, served notice of her intention to

  relocate with the children to Baltimore, Maryland. On May 6, 2014 Mr.             c...,
  filed a counter affidavit opposing Ms. W..,;,,'s intention to relocate fromIrwin,

  Pennsylvania to Maryland. This court conducted a relocation hearing on July I 0,

  2014. On July 18-, 2014, this court issued an opinion and order approving Ms.
     .                                                    .               .   .

  W-'s       relocation to Baltimore, Maryland. In the same order, this court issued

 an interim order of custody providing the parties with shared physical and legal

 custody, .with the parties having a two (2) week on and two (2) week off schedule.

 This court scheduled a further hearing to consider all ..evidence relevant to a
                                                              •



 modified.order of custody as required-by 23 Pa.C.S.A. § 5337 (f).

         On August 5,.2. 0141\.1:r. C-   filed .a written request for reconsideration.

 On September' 11, 201_4 this court denied Mr. C_,s               request for reconsideration

 and issued a modified order of custody. The modified order-of custody was

. stipulated to and agreed upon by the parties. The modified order of custody




                                            3
                               )



   incorporated this court's July 18, 2014 order for shared custody on a two week on·

  · two week off schedule and portions of Judge Gilman's order of August 28, 2013.

         Within eight months, on March 17, 2015 Ms.     w.,,,   filed amotion seeking

   to modify. the previously agreed upon custody order. On February 18, 2016 upon

   recommendation of the custody conference officer this court issued a new order _of

   custody. This new order provided for the parties to share legal custody .. However,

  primary physical custody during the school year was awarded to Mr, c-          and .

  periods ofpartial custody on the first, third and fourth weekend.of eachmonth was

  granted to Ms:   w,_.    During the summer break from school the parties returned

. to sharing physical custody on a two (2) week _on and two (2) week off schedule ..

  On March 3, 2016, Ms. W-filed         a timely request fora trial de novo.

        Following a pre-trial conference on April 8, 2016 this court scheduled the

 trial de novo for June 27 and.June 28, 2016. The partiesappeared and offered

 testimony of seven witnesses including both parties. Due to the length of

 testimony Mr. C-'s       testimony could not be completed. The parties returned

. on July 15, 2016 to complete the presentation of evidence which included

 testimony from Mr. C-,        and rebuttal evidence from Ms. W-.




                                           4
 DISCUSSION

            In ordering any award of custody, the court shall determine the best interests

 of the child by considering all relevant factors. When deciding a petition to modify

 custody, a court must conduct a thorough analysis of the best.interests of the child

 based on the relevant Section 5328(a) factors. E.D. v. M.P., 33 A.3d 73, 80

 (Pa.Super.2011). "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. A.V. v. S.T., 2014 PA

Super 48, 87 A.3d 818, 822-23 (Pa. Super. 2Q14)


        In an action where a relocation and primary custody are in dispute, a court is

required to consider all statutory best interests factors as set forth in 23 Pa.C.S.A. §
                   .                                                                   .      ]
5328(A) and 23 Pa.C.S.A.§5337. E.D. v. M.P., 33 A.3d 73 (Pa. Super. 2011). 23

Pa.C.S.A. § 5322(a) defines a relocation as a change in residence of the child

which significantly impairs the ability of the non-relocating party to exercise

custodial rights. 23 Pa.C.S.A. § 5337 is designed to give notice· to a party with
        I
         See also B.K.M. v. J;A,M. 50 A.3d16S, 172-75 (Pa.Super.2012) which held that
because the best interests of the child are the paramount concern of any custody case, the trial
court must address the sixteen best interest factors of section 5328(a) and the ten relocation
factors of section 5337(h).


                                                 5
     custody rights that the other custodial party intends to change his or her

     geographical· location and a modification of a custody arrangement will be

     necessary to allow the relocating party to continue to exercise custody rights. D.K.

     v. S.P.K., 2014 PA Super 218, 102 A.3d 467~ 473 (Pa. Super. 2014). In later

     decisions, the Superior Court has distinguished D.K. v. S.P.K, 102 A.3d 467, 477,

     478 (Pa.Super.2014), and observed that D.K. v. S.P.K held that the trial court must

     consider section 5337(h) factors only where a parent is relocating with a child. See

     L.E.C. v. J.A.S., 1598 :MDA 2014, 2015 WL 6951152, (Pa. Super. June 29, 2015).2.


           In this matter, Mr, C   z 's request for primary custody to move the

 children back to Pennsylvania arguably does not meet the statutory definition of "a

 relocation." No change in residence will 'occur if either Mr.      c....   or Ms.

 w.,,.receives        primary physical custody. The children have been residing with

 each parent at their respective addresses under a shared custody order.

          However, inD.K. v. S.P.K., 2014 PA Super 218, 102 A.3d 467, 468 (Pa.

 Super. 2014) the. Superior Court held:

          We conclude, inter alia, that in a case such as this, which involves a custody
   determination where neither Mother nor Father is relocating and only the children
   stand to move to a significantly distant location, the relocation provisions of the
   Child Custody Act, 23 Pa.C.S.A. § 533 7, are not per se triggered and the notice
,. requirement of section 5337(c) does not apply. However.In such cases, the trial .

 2A memorandum decision which is not binding authority but which can be considered as
 persuasive.
                                               6
                               )


 court shall consider the· relevant factors set forth in section 5337(.h) insofar as they
 impact the final determination of the best interests of the children.



 Accordingly, pursuant to §5328 (a)(16) the relocation factors are a relevant

 consideration for a trial court where such factors impact the final determination of

 best interests of the children .. In this case, each party thoroughly presented

 evidence that is sufficient for consideration of all factors set forth in both § 53 28

and§ 5337. In reaching this determination, the court addre.sses all§ 5328 factors

and all those relevant factors set forth in§ 5337(h).

       The parties do not dispute their respective standing. However, Ms. W-

does not consent to Mr. C-'s          having primary physical custody of both children

in Pennsylvania. In tum, Mr,        c-.   contests an award of shared physical custody

or primary physical custody to Ms. W-. ·


STATUTTORY FACTOR ANALYSIS

       The court addresses below the §5328 factors and those 5337 factors relevant

to this dispute. Because-of the overlapping nature of these sections, in section (16)

the court separately considers 5337 factors not otherwise covered by factors 1 ~ 15
                       .        .

of§ 5328.




                                            7
                                                                     )


(l}Which party is more likely to encourage and permit frequent and continuing ·
   contact between the child and another party.

           Both parties have demonstrated an ability to encourage and permit frequent

  and continuing contact. However, both have also engaged in behavior that

  undermines such abilities; For instance, Ms.    w.., conceded that she has
  previously disparaged Mr.   C-'s wife,~'              in front of the children. Mr.

  C-        was reluctant to provide the PACE coordinator with    Ms. W..,'s     contact

  information for the June 16 parent/parent session. To Coordinator Naccarelli, Mr.

 c-         acknowledged that Ms.   W ...    "needs t~ be a part .~four chlldren;s

 lives." (See Exhibit J-1) At trial, the manner and substance of Mr. C-'s

 testimony did not indicate that he vigilantly looked for ways to encourage contact

 between the children   and Ms. w..-. Ms. w,..,, however, credibly testified to
 wanting   to have photos of Mr. c-   and the children s_o that she could place

 those photos in each child's bedroom. Additionally, she has offered to share

 important events and holidays with Mr. c-· and his family including birthday

parties and a vacation to Disney. Mr. C-          has declined these offers.
        Taken   as a whole the testimony   credibly established that Ms,   w.-    is

presently more likely to ~ncourage and permit frequent and continuing contact with

Mr. C       I than he is with her. Bvidence on this factor favored Ms.     w.,..



                                             8
 (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. (See also 5337(h)(9))


          No credible     or persuasive   evidence was presented that demonstrated a party

    or a member of his or her respective household has committed an act of abuse.

   Further, the court finds no credible or persuasive evidence that a "continued risk of

   harm" exists with regard to either child. PACE Coordinator Naccarelli indicated

   that both parties are capable of providing adequate physical safeguards and

   supervision for their children. (See Exhibit J-1) Evidence on this factor does not

   favor one party over another,


(3) The parental duties performed by each party on behalf of the child. (See also
    5337 (h)(l))

         Evidence presented established that each parent performs parental duties for

   each child. The evidence showed that Ms.          w...,; being single and having
   limited extended family living in close proximity, performs a greater volume of

  parental duties.for her children than does Mr.       c-.       (See Exhibits 11 and 27)

  Further, historically, on occasion, Mr. C-has              been less attentive in performing

  his parental duties. For instance several years ago, B.C. suffered a severe sun bum

  while: in Mr. C...-'s      care. (See Exhibit 8). More recently, however, Mr. C....

  has demonstrated that he possesses the ability and the commitment to attend to the
                                                 9
                                 ·.   )
                                                                          )


    needs of both children. As an example, the testimony credibly showed that Mr.

    c-       was very involved in and well informed about B.C. 's medical needs

    regarding her physical growth and maturity.

           The evidence on    this factor   slightly favored Ms, w.,.., however, not to a

    degree that is outcome determinative.


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

          The age .and state of development of each child requires the parent having

   primary physical custody to have stable life circumstances. B.C.           i; starting
   elementary school and J.C. will continue to attend pre-school. Both will be well

   served by residing with a parent who can provide the stability that wouldenable

  the children to establish strong ties at school and in their community. Both

  children will benefit from a family life that gives each child a sense of security and

  consistency. The economic stability that either parent maintains will impact his or

· · her ability to provide stability and continuity for B.C -. and J.C.

        . Since the time of the last hearing before this court in 2014, the ability of

  ea~h party to better provide for stability and continuity in matters of education,

 . family life and community life has improved, Mr.       c-is        no longer sharing an

  apartment with a friend and struggling to pay utility bills. Instead, he now lives

  with his wife in a new home in a nice community served by a well-regarded and

                                                 10
                                                  f
                                                                  )



  effective elementary school and school district. Mr.   c...-   has taken a sales

  position with a secondary market auto dealer. Mr. C-'s        new position has

  provided a steadier stream cf regular income and his wife has a well-paying

 position as a financial officer for a large car dealership. The evidence clearly

 demonstrated that Mr.   c-      has significantly improved his personal life

 circumstances and the quality of life that he can offer his children. .

       The improvements in Ms. w._,,'s personal life circumstances were

 credibly demonstrated by the new home she has leased and her activities' expenses

 for the children. She has rented a very well equipped home and has. spared little

 expense in attempting to provide her children fun and educational life experiences.

 (See Exhibits 1-7, and 9)

       However, the evidence_ presented did not c~edibly or persuasively establish

that Ms.   W_.,wm     be able to sustain such a standard of living. Ms. W-           is

no lcinger working at a Baltimore area casino as she was when she relocated in

2014. Instead, she has chosen to become self-employed as a professional poker

player. In this non-traditional employment, she has been "staked" by her personal

coach who has lent her money to begin her playing career. Though she has

reserved both a "bank roll," money for playing poker, and a "life roll," money for

paying life expenses.she offered no documentary evidence-showing her taxable

income. Further, despite offering 27 exhibits, many of which were multi


                                          11
                                                                         )


    document, she did not offer a scintilla of documentary evidence substantiating her

    claimed present income. No bank statements were presented corroborating the

    existence of her "bank roll" and "life roll."      Her testimony indicated that she had

   not begun to calculate the amount of federal, state and local income tax she will be

   paying. No evidence of quarterly returns was offered. · The court is concerned that

   a significant portion of Ms.   w..-'s "bank         and life rolls" will be consumed with

   one of life's two certainties, that being truces.

          Further, despite Ms. W....     's assertions to the contrary, the court was not ·

  convinced that she would continueher endeavor as a professional poker player. _At.

  one point in her testimony, she indicated that she intended to apply for another

  position at a casino. At another point in her testimony, she indicated that if she

  were not awarded primary physical custody she would move back to Western

  Pennsylvania and if necessary find different employment. She testified in some

  detail that the. economic horizons for a poker player in Western Pennsylvania were

 much less than for a player in Baltimore, Mazyland. Taken as. a whole, Ms .

. _W ..    's. testimony indicated that her venture in a field of non-tradi~onal self-

 employment was in its nascent stages and has significant uncertainty.

          Ms.   w..-'s   testimony did not convince the court that her current

.· profession will provide the income, consistency and flexibility necessary to

 provide the stability and continuity that J.C. and B.C. presently need. Ms.        w_. .
                                              12
                                                                          )


    is not too far removed from the instability in housing and employment she and her

    children endured in 2013. A recµrrence of the need to relocate on an emergent

    basis due to a lack of suitable housing could have more deleterious effects upon

    two school aged children than previously were encountered by B.C. and J.C.

    during their infant and toddler years. Staking. each child's
                                                          .
                                                                 stability in home, school

    and community life upon the indefinite and yet to be established s~ccess of Ms.

   W...      's poker playing is not an attractive ante for the court.

           For these reasons, the court finds that evidence on this factor clearly and




(5) The availability of extended family. (See also 5337 (h)(l))

           Both parents have extended family members and "kin" that have developed

  · a relationship and bond with the children. 'Thoughresiding in Ligonier, ·

  Pennsylvania, Ms,    w..,, smother       has consistently visited with the children and

  provided some substitute child care. F•           M-,      a close friend, sees the children

  regularly and participates in many activities with Ms.       w...      and the children.

  The activities include riding on Mr. M-'s           pontoon boat, golng to movies and
       .                                   .


  attending parties. J.C. and B.C. call Mr. M-            "F •. ". He works in the casino

  industry and previously lived with Ms. W-in              2007 and 2009. He andMs.

  W-        are not a "couple" but have maintained a close friendship for the better

  part of the last decade.
                                               13
                                   . ')
                                                                                        )

                                                    .        "          .
             Mr. C..,'s       extendedfamily includes his wife,~'                           his mother, s-..

     M-., and his father, D_.             C-.           Each not only have established

   . relationships with both children but each provides regular child care assistance to

     Mr. C-.          Mrs. M-     has cared for the children throughouttheir lives. On · .

     Tuesdays, she.picks the children up from daycar~ and stays with them until Mr.

     c-       arrives home from work. Sh.e also cares for the children on Saturdays

    when Mr, C.....        and his wife N ..       are working. Paternal Grandfather,                  n.-.
    c-;        serves as Mrs. M-'s         "back-up." He sees the children one time per

    month and lives approximately one (1) hour from Mr,                      c...,'s home.         The

    C-'s       also attend annual beach vacations around the 4th of July holiday with

    extended family organized byMr. C~'s                         uncle, S-      c..,.          The c..,

    extended family includes several children similar in age to J.C. and B.C. (See ·
                              .                                                                        '


    c_.      Exhibit G).

        . Weighing the testimony and exhibits presented by.both parties, the court

  · finds that the evidence on this factor slightly favored Mr.                c....        over Ms.




(6) The child's sibling relationships.          (See also 5337 (h)(l))

           The parties stipulated to this factor. J.C. and B.C. have no siblings other

   than each other. A custody arrangement that keeps them together is being pursued

   by both parties.
                                                        14
(7) The well-reasoned preference of the child, based on the child's maturity and·
    judgment. (See also 5337 (h)(4))                      ·

         Due to the tender age and immaturity of each child neither B.C. nor J.C.

  were interviewed by the court. Neither at the parties' April 8 pre-trial conference

  nor during the three (3) days of trial did either party request to have the children

  interviewed. Both parties indicated that they would make the children available if ·

  the court insisted upon interviewing the children.

        The evidence presented, through other sources, shows both children to be

 happy and secure in the respective custody of each parent. PACE Coordinator

 Naccarelll observed both children interact with each party. Mr. Naccarelli reported

 that both children "had a good rapport' with Mr.       c-        and "viewed him as a

 source of love and security." Mr. Naccarelli made a similar finding with regard to
                                           .                  .
 Ms. W .,...   The numerous photographs offered into evidence further            . .-

 demonstrate the close, comfortable and affectionate relationship each child enjoys

 with each parent. (See Exhibits for c-             G andH, and for   w.-     11 and 24.)

       Evidence on this factor did not weigh in favor of one party over the other but

was favorable to each party. ·




                                               15
                                                                    ·,
                                                                     )




  (8) The attempts of a parent to turn the child against the other parent, except in
      eases of domestic violence where reasonable safety measures are necessary to
      protect the child from harm. (See also 5337 (h)(5)). _

           No credible or persuasive evidence was presented establishing any instance

    of domestic violence between the parties or in their respective households. The

    evidence did not demonstrate the need for any special safety measures in either

    household.



    concerning Ms.   w.., while the children are in h~s presence. Ms. w...,
   acknowledged that she made disparaging comments about step-mother N...            to

   J.C. and B. C. Both the testimony at trial and Coordinator Nacarrelli 's report

   · indicate that since the time of those comments Ms.   w..-   has made sincere

   eff~rts to encourage her children to have a positive relationship with Mr. C...-.

         Evidence on this factor did not favor one party over the other. ·


(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.

         As discussed above with regard to Factor 4, the court- has significant ·

   concerns regarding Ms. W...,'s     ability to provide stability and consistency for

  each child in education, home life and community life. Ms. W..-'s testimony

  demonstrated that to the extent she is capable she would not spare effort or

 · personal expense to provide for her children. However; in earnestly attempting to

                                             16
                                                                           )



     provide. for her children, she has in the past and may in the future have to obtain

     employment that.takes her out of her home during evening hours or overnight. Ms.

     we testified that, in part, she started a career as a professional poker player
     because she. wanted to work when the children were at school or in daycare.

    Unfortunately, the success of that career choice remains uncertain. A real risk

    exists that Ms. W ...         will have to seek new employment. She offered no

    substantial evidence that such new employment would accommodate a schedule
      .                                       - .
    that would enable her to be _ with her children at night,

           Mr. C...,'s      circumstance is not without risk, either. His employment in

    the last ten years has changed yearly and in some
                             .                    .   occasions every few months.

    However, Mr.   c...-         has consistently found work. The regular assistance his

   mother has provided to him and her willingness to continue doing so provides

   significant assurance that      1.c: and B.C. 's emotional   needs will be met while in

   their father's. custody. Mr. c-'s           extended family, including J.C. and B.C.'s

   step-mother, paternal grandparents and step-grandparent, provides more persons

   available to each child to receive love and nurturing.

          On this factor, the evidenceweighed in favor of Mr. Cu••

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

          The evidence presented in this case indicates that each party attends to the

 _ daily physical, emotional, developmental, educational and special needs of J.C. and
                                                    17
                                                                          )



         B.C. More recently, Mr.   c-     has shown a commitment to properly attending to

         the individual medical and extracurricular needs of his children. PACE

         coordinator Naccarelli opined that Ms. W ~        "illustrated a strong likelihood to

      attend to the children's needs." (See ExhibitJ-1) The evidence demonstrated that

      the children while in Ms. w.-'s          care are more likely to be attended to by direct .

     . care from their mother while in her custody than they are to be attended to directly

      by Mr, c-        while in his custody.

              Evidence on this factor favored Ms.      w..,. over Mr. C:..-

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

             The parties donot dispute the location of their respective residences. B.C. is

     now school aged and J.C. will be attending pre-school and day caredaily,

     Continuing the previous shared physical custody order is not in the best interests of

     the children due to'the proximity of the parties' residences. being approximately

    four (4) hours apart.



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

             The evidence demonstrated that both parties are available to provide direct

    parental care for each child and both are vecy capable of making appropriate child

    care arrangements if personally unavailable.

                                                  18
· (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.

          The level of_conflict in this case Is high. Hoth parties are responsible for the

    current state of discord. Mr. C....,'s     wife, Nmll, has also contributed to the

    ongoing restrained but hostile interaction between the parties.

          Coordinator Naccarelli reported that both parties gained "perspective"

   through the P.A.C.E. program. Mr.        c.....-   conceded that he is not forthcoming in

   sharing information with Ms.   w..,..       Ms.    w,,,,.,   conceded that she "opens up

   too much."

         Coordinator Naccarelli observed that the-parties continually argue about Ms.
                                    .                     •     l

   w.,,,.'s decision to move to Maryland and her choice of profession. Coordinator

  Naccarelli opined that if the parties continue to use these two points as their "main

   arguments" they will make little progress in co-parenting.

         Having observed the testimony of the parties and Mr. C

  and based upon the findings of Coordinator Naccarelli, the Court finds that

  'directing the parties to obtain further co-parenting counseling is in the best

  interests of both B.C. and J.C. Such co-parenting may, if deemed appropriate by

  the counselor, include N_...    211111.




                                               19
 .(14)           _The history of drug or alcohol abuse of a party or member of a party's
        household.                                    ·

                 No credible or persuasive evidence was presented establishing that either

        party or any person intheir respective households has a history ofdrug or alcohol

        abuse.



 (~5)        The mental and physical condition of a party or member of a party's
       household;

             The parties stipulated that neither has a physical o~ mental condition that is

   "relative to custody." No credible or persuasive evidence was presentedthat either

   party suffers from condition that would adversely impact his or her parental

       capacity. Further, the evidence presented demonstrated that each party, while

   exercising custody, is active and engaged in a positive and meaningful.manner

   with J.C. and B.C.


(16)        Anyother relevant factor.


            Additionally, in any custody determination where neither parent is moving,

   but the children stand to move to a significantly distant location, the trial court

   should consider the age, developmental stage, needs of the child and the likely

  impact the child's change of residence will have on the child's physical, educational

  and emotional development (23 Pa.C.S.A. § 5337(h)(2)), the feasibility of


                                                 20
                                 ,
                                 \

                                                                      )

 : preserving the relationship between the other parent and the child (23 Pa.c:s.A. §

  5337(h)(3))1 and whether. the change in the child's residence will enhance the

  general quality of'Iife for the child (23 Pa.C.S.A. § 5337(h)(7)).. "Even though

  these three factors are not directly or implicitly encompassed    in section 5328(a),
  they are clearly relevant to the decision of what is in the child's best interest when

  contemplating a move of significant distance to the other parent's home, and are

. therefore necessarily.part of the trial court's analysis pursuant to section

 5328(a)(l6), which requires a trial court to consider any other relevant factor in

 making a custody determination." 23 Pa.C.S.A. § 5-328(a)(16). D.K. v. S.P.K.,

 2014 PA Super 218, 102 A.3d 467, 476-77 (Pa. Super. 2014).

       Each child's physical, educational and emotional development will be best

 served if one parent is awarded primary physical custody: As B.C. is starting

 elementary school and J.C. will be attending daily pre-school or day care, the best-

interests of each child require that they have a primary residence and no longer

move state to state between their parents every two weeks for two weeks at a time.

       Mr. C        's more stable and consistent life circumstances best serve each

child when one considers their respective ages, developmental stages and needs.

Both children need stability and consistency as their school age years commence.

Normal activities for-both children should include the developing-of friendships

and beginning certain activities such as dance, soccer, baseball, etc. The chance to


                                            21
                               )                                     \
                                                                     I




  engage in those activities should not be mechanically interrupted every two (2)

  weeks because of the necessity to change custody.

        JM:r. C-      is employed in a stable position and lives in a home owned by

  his wife, who is also employed and who makes well In excess ~f $ 100,000.00 per

 year. Ms.   w._ i~ self-employed in a non-traditional       occupation that she

 recently started and has provided little in the way of tangible evidence regarding

 her chances for succeeding in that field. The evidence presented indicated that Mr,

 C-      and Ms. Z...     are happy   and their marriage is not in any presentjeopardy,
 Ms. z•'s testimony revealed an emotional attachment with each child. Nllla

 z•    and Mt. C-'s        extended family provide a broader and more available

. support network for J.C. and B.C. than Ms. W..,        can provide to them in

 Maryland. For these reasons, B.C. and J.C.' s lives will be enhanced by awarding

 MI. C-primary          physicalcustody.

       The court acknowledges that, in somerespects, the quality of Ms. W-'s

relationship with her children may be diminished by the award of primary custody

to Mr. C-.         Exhibits 11 and 24 include numerous photographs that

demonstrate thequality of the relationship Ms.     w..,.    enjoys with her children.

Less time with her children will result in fewer opportunities to continue all the

good memories she has made with.her children. In other respects, not beingthe

primary custodial parent rnay provide Ms. W.,..         with the opportunity to gain


                                            22
                                                                             )

   the stability   in her career and home life that will assuage the concerns the· court has
   expressed earlier in this opinion.    Ms. W-'            s primary commitment to her
                                               .                 .
   children is sincere and genuine. Due to that strong commitment, this court finds

   that Ms. W111!!19'srelationship with her children can be preserved. Daily
                                         ...
 · telephone contact with her children while out of her custody, .Mr. C...              's

  placement    of pictures   of Ms.   w.,..    in the rooms of both children, Mr.      c..-'s
  willingness to share important events in the children's lives with Ms. w.,.; Mr.

  C-'s        regular sharing of information with Ms.          w....,, extended    visits on

  school holiday weekends and breaks, and a summer schedule that provides

 ·significant daily custody with Ms.     w..-           could all contribute to successfully

 preserving Ms. w.,..'s relationship with B.C. and J.C.

         Finally, the Court has given consideration to the motivations each party has

 in this 'dispute, The court finds that the integrity of the motives in this litigation of
 each party has been well established Each lovesher or his children dearly. ~ach

 believes that she or he can best care for and raise their children. The order this ·
    .                                                                .
 court issued in the summer of 2014 is no longer practical or effective in achieving

 what is in each child's best.interests,

         Under the present circumstances, the best interests of the children are served

· by one party having primary custody. After a full consideration of.all factors set




                                                   23
                                                                        )

     forth in 23 Pa.C.S.A. § 5328(a) and §5337(h), the best interests of J.C. and B.C.

    are_ served by an award of primary custody to :Mr:~-·

                                            ORDER

    AND NOW this      n- day of August,    2016 for the reasons set forth in the opinion

    above, it is ORDERED, ADJUDGED AND DECREED that:                    ·

 1. The parties shall have joint legal custody of the minor children,   r•••    C-



~. Pen ding commencement of the 20 I 6-2017 school year, the parties shall continue to

   share physical custody of the children until 6;00 p.mon Sunday August 14, when
                                                       .                .
   Mr. c_.       shall have primary physical custody of both children;

3. Commencing at 6:00 p.m. on Sunday August 14, 2016 until the first Sunday after

   the last day of the school year the children shall reside with N.I:r. c-,     who shall

   enjoy primary physical custody; .

4. Commencing the first and third full weekends of September, 2016, from 6~00 p.m.

  on Friday to 6;00 p.m. on Sunday, Ms.      w.-shall enjoy partial physical custody
  of the children. Such partial physical custody may be exercised on the first and

  third full weekends of each month, thereafter, from 6:00 p.m, on Friday to 6:00

  p.m. on Sunday. In the event that school is not in session on a Friday, Ms. W-,

  shall have the option of expanding her custodial time so that it commences on . ·

  Thursday at 6:00 p.m. provided she gives Mr. C-seven              (7) days' notice ofher


                                              24
                                                                          )


    intention to exercise additional time. · Should school not be in session on a Monday

    following Ms. W _.,          s custodial weekend, Ms. W-         shall have the option of

    expanding her custodial time so that it concludes on Monday at 4:00 p.m. provided

   she gives Mr. C      ·   I   seven (7) dayatnotlce of her intention to exercise additional

   time. In the months of October, January and March, Ms. W ..                may elect to

   exercise additional periods of physical custody during the second full weekend of ·

   the month. Such custody shall be exercised within the geographical limits of

   Southwestern, Pennsylvania to include any county sharing a common border with

   Washington County. Ms.          w.,.,,   shall provide Mr. C-thirty        (3 0) days'

   notice of her intention to exercise this additional time. Further, Ms.       w.,,,.      shall

   be permitted to have additional periods of partial .custody as the parties may agree;

5. During the summer sch_ool vacation, Ms.         w,,,,..   shall be provided with seven (7)

  full weeks of custody which may be exercisedany time after the first Sunday

  following the last day of school. However, such periods shall not be exercised

  during the six (6) days prior to the July 4th holiday and the seven (7) days

  following the July 4th holiday and the l~st seven (7) days before the start of the

  school year when the children shall be in Mr. C               's custody. On or before May

  1st of   each year Ms. W,,,,. shall notify Mr. C-             of the seven (7) weeks she

  will-be exercising custody during, the· summer school vacation;




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                                                                        :'° .. )


       .
    6. In even numbered years, Ms.       c-        shall have the children from the beginning

           of their Thanksgiving break until 12 p.m. on the Friday following Thanksgiving

           when the children shall go into the custody of Ms. w..-who              shall have custody

           until the following Monday at 4 p.m. In odd numbered years, this schedule shall

           change with Ms.   w..-   receiving the children following their dismissal from

           schoolto Friday at 12 p.m. and Mr, C-        having custody for the remainder of

       the Thanksgiving break from school;

   7 .. In even numbered years Ms:     w.,,..   shall havecustody from 6 p.m. on the last

       day of school before the· Christmas Break untii 12 p.m. on December 2ih when

      Mr. C-          shall have custody for the remainder of the Christmas break. In odd'

      numbered years, Mr.      c-      shall have custody from dismissal from school for

      Christmas break until 12 p.m. on December 271\ when Ms.          w.-            shall receive

      custody until 12 p.m. on the last day of the Christmas Break;

 · 8. Ms.     w_.     shall have custody of the children each Mother's Day weekend from

     Friday at 6 p.m, to Sunday at 6 p.m.;

... 9 ... Mr. C~.     shall have custody of the children each Father's Day Weekend from

     Friday at 6 p.m. to Sunday at 6 p.m.;

 10. Commencing in 2017 and for each year thereafter, Ms. w..-shall                    always have

     custody of children on Memorial and Labor Day Weekends from 6 p.m. on Friday

     to 6 p.m on Monday;
                 +,




                                                   26
                                                                        )

 11. Thirty (30) days prior. to Easter. break from school Mr. C-            shall notify Ms.

    W-ofthe          dates of the Easter/ Spring break for the children. If such break is

    no longer than a weekend andone day, Mi. C-              shall have custody for the first

    (24) twenty four hours of the break and the last fifteen (15) hours of the break. Ms.

    W-         shall have custody for all remaining time on the break. If the break is

    longer than a weekend and one day, the parties shall equally spli~ the break. If the

   · parties are unable to agree on how to divide the Easter Break, Ms.       w.,..'s
   election shall be controlling in odd years and Mr, C-'         s shall control in even

  · years;

12.The holiday schedule shall supersede the regular custody schedule unless

   otherwise agreed upon by the parties;

13. The parents shall attend arid participate in a joint birthday party for each child. In

   even numberedyears, Ms. W-            shall host I        's joint birthday party   and in
   odd numbered years she shall host .r.-'s        joint birthday party. In even numbered

  years .Mr.   c_.. shall host J..      's joint birthday party and in odd numbered

  years I I I 's joint birthday party. Maternal and Paternal grandparents shall be

  invited to all such parties. Other extended family and friends may be invited at the

  discretion of the host. The scheduling of the parties does not have to coincide the

  precise birth dateof each child but shall occur withinZl days of'the child's




                                              27
                                                                        )


    birthday. The parties shall cooperate on the selection of a d~te that is convenient

    for the parties and the children;

14. The custody schedule shall be modified to permit the children to att.~nd special·
                                                                            I




   family functions to include graduations, weddings, funerals and one family reunion

   per year per party;

15.Unless otherwise agreed    to by the parties, all custody exchanges shall occur in
   Breezewood, Pennsylvania under the terms and conditions set forth in this court's

   order of September 11, 2014;

16. That neither parent shall enroll the children in any extra-curricular, sporting or

  other similar activity without the consent of the other parent. Both parties shall, in ·

  good faith, give serious consideration to the desires and interests of each child.

 · Neither party shall unreasonably withhold consent for such participation. Both

  parties shall be permitted to attend activities of the children. The party in custody

  shall have the duty to exercise reasonable efforts   to timely and effectively   inform

  the party out of custody of any changes in activity schedules. In the event a party
                                                                    I


  forgoes a custodial period to accommodate the activity schedule of a child, the

  parent who surrendered their custodial time shall be permitted to select "make      up
  time" for a date to occur within the next thirty (3 0) days following the event which
                                                                                             ·-
  caused the change in schedule;




                                             28
;
I

                                      _.· ·'

      17. The parent out of custody shall be permitted to contact the children daily via

         phone or other electronic means at reasonable times, but no later than 8:00 p.m,

         The children shall be permitted to contact the parent out of custody at reasonable

        times;

     18. The parties shall participate in :further co-parenting counseling to assist them in

        effective communication regarding their children;

     19. Mr. c-       shall provide to Ms.     w,,._     bi-weekly written updates concerning

      · each child's school progress, health, and activities outside school. Such updates

        shall beprovided to Ms.      w,.,. on or before each Friday exchange of custody;
    20. On or Before the   1st   day of March and the 1 sr day of September of each year the

       parties shall exchange pictures of the children which depict the children with the

       other parent. Each parent shall permit each child to select a reasonable number of

       pictures to display in the child's bedroom. The'parties may exchange pictures on

       more than two occasions if they so agree;

    Zl .While in the presence of the children neither parent shall make remarks or do

       anything which can in any way be construed as derogatory or uncomplimentary to

       the other parent. Each parent shall uphold the other parent as one whom the

       children shall respect and love;

    22. Each parent shall consult with the other on al] matters· of importance relating to

       each child's health, activities, education, and religious training. Each parent shall,


                                                    29
/'

                                                                        ·.·)
      at all times, keep .each other informed of his or her place of residence and

      telephone number and shall promptly notify the other of any change, giving the .

      address of the new place of residence and the new telephone number, If either

      parent has knowledge of any illness or accident or other circumstances seriously

      affecting the health or welfare of the children, they shallpromptly notify the other

      parent of such circumstances: Each parent shall supply the name, address, and

     phone numbers of any persons in whose care that parent places the children for a

     period in excess of forty eight hours. This provision doesnot apply to a parent's

     · spouse or to a grandparent; .

         23. Emergency decisions regarding the children shall be made by the parent

     then having custody. However, in the event of any emergency or serious illness of

     either child at any time, the parent in custody shall prompt]y communicate with the

     other parent by telephone or any other means practical, informing. the other parent

     of the nature of the illness or emergency, so that the other parent can become
     involved in the decision making process as soon as practical. The term "serious

     illness" as used shall mean any injury or illness that requires the child to be taken ·

     to a hospital for treatment;

        24. Neither parent with custody rights shall relocate without notice to the other

     parent and consent or court approval.       See 23 Pa.C.S.A. § 5337 (c) and (d). If

     there is   no consent the parties   shall follow the procedure outlined in the Child


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I
I                                                                  , , I

                                                               :       )



    . Custody Statute. BOTH PARTIES ARE UNDERA CONfINUING I;,EGAL

    OBLIGATION TO ADHERE TO THE REQUIRElvlENTS OF 23 PACSA § 5337

    REGARDING THEIR INTENTION TO RELOCATE WITH THEIR MINOR

    CHILD.

          25. This Order shall constitute a Final Order, and as such supersedes and

    replaces all previous custody orders.'

                                                  BY THE COURT


                                                                                      (   .




                                             31
