J-S08014-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 L.W.                                   :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 D.K.                                   :
                                        :
                   Appellant            :   No. 1462 WDA 2019

              Appeal from the Order Entered August 29, 2019
     In the Court of Common Pleas of Allegheny County Family Court at
                       No(s): No. FD-13-000236-008


BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.:                          FILED MARCH 27, 2020

     D.K. (“Father”) appeals from the order entered on August 29, 2019. The

subject order granted L.W. (“Mother”) permission to relocate from Pittsburgh

to North Carolina with the parties’ four-year-old son, L.K. (“Child”), and

modified the parties’ child custody arrangement to accommodate the

relocation. We affirm.

     As the trial court explained:

        The parties were never married. They were involved in an
        on-again off-again relationship beginning in 2010 and were
        living together when Child was born, separating not long
        after. Their relationship was tumultuous and their first
        custody order evolved out of the settlement of a protection
        from abuse through a non-PFA consent agreement.

        Mother has always had primary [physical] custody of Child,
        with Father having approximately 100 overnights per year.
        Father, however, also exercised custody most weekdays
        while Mother was working as the parties agreed this was
        preferable to Child being in daycare.
J-S08014-20



        Mother worked as a dental hygienist and Father is a
        self-employed personal trainer with flexible hours. Mother
        has an [11-year-old] daughter from a former relationship;
        Father has no other children. Both parties have extended
        family in the Pittsburgh area. . . .

        Approximately a year ago, Mother met [S.B.] at a wedding
        and the two began a relationship. [S.B.] lives in North
        Carolina where he is a state trooper. The two became
        engaged to be married and Mother is expecting his child. . .
        .

        [On February 6, 2019,] Mother filed a notice of proposed
        relocation[, where she requested permission to relocate with
        Child from Pittsburgh to North Carolina. Father opposed the
        relocation]. An expedited [two-hour] hearing was held on
        Mother’s petition on June 4, 2019 and [the trial court]
        permitted [Mother] to relocate by [order] dated June 19,
        2019. Mother then moved to North Carolina with Child.
        Father filed a complaint for custody as well as a motion for
        reconsideration and a full trial was scheduled. After a
        [one-and-a-half] day trial and consideration of a post-trial
        memorandum of law submitted by Father, [the trial court]
        entered [an order on August 29, 2019,] again granting
        Mother’s request to relocate and setting forth a
        comprehensive custody schedule for the parties.

Trial Court Opinion, 11/6/19, at 2-3 (footnotes and some capitalization

omitted).

     Father filed a timely notice of appeal.     He numbers 17 issues in his

statement of questions involved:

        1. Did the trial court commit an abuse of discretion and/or
        error of law by failing to give proper weight and consideration
        to [Father’s] role in [Child’s] life in determining that this
        factor favors [Mother]?

        2. Did the trial court abuse its discretion and/or make an error
        of law by failing to take into account the contacts [Child] has
        with his current status, more specifically, the relationships


                                     -2-
J-S08014-20


       with all of his extended family in his current area, as opposed
       to no extended family, except for a sibling, in the proposed
       relocation state?

       3. Did the trial court commit an abuse of discretion and/or
       error of law by concluding that [Mother’s] proposal provides
       to [Father], feasible opportunity to preserve the relationship
       between [Father and Child]?

       4. Did the trial court abuse its discretion and/or make an error
       of law by concluding [Father] has attempted to turn [Child]
       against [Mother’s] fiancé that he is regularly and significantly
       late for exchanges?

       5. Did the trial court abuse its discretion and/or make an error
       of law in determining that [Child’s] life would be enhanced by
       allowing the relocation?

       6. Did the trial court abuse its discretion and/or make an error
       of law by concluding that [Father] has been aggressive in the
       past?

       7. Did the trial court abuse its discretion and/or make an error
       of law concluding under Factor 4 that [Child] is resilient and
       very capable of adjusting and that will create stability and
       continuity in [Child’s] life?

       8. Did the trial court abuse its discretion and/or make an error
       of law by concluding under Factor 5 that [Mother], though
       she has no family in North Carolina, she may be a stay at
       home mom and be with her children?

       9. Did the trial court abuse its discretion and/or make an error
       of law by concluding under Factor 8 that [Father] has
       discouraged [Child] from having a relationship with Mother’s
       fiancé?

       10. Did the trial court abuse its discretion and/or make an
       error of law by determining under Factors 9 and 10 that
       [Father] needs to improve his relationship and behavior
       toward [Mother] when he is frustrated and not taking into
       account [Mother’s] behavior toward [Father] in providing that
       these factors favor [Mother]?


                                    -3-
J-S08014-20


        11. Did the trial court abuse its discretion and/or make an
        error of law in determining that the proximity of the parties,
        under Factor 11, in considering [Mother’s] move to North
        Carolina that the parties will be very far away, without placing
        emphasis that this would favor a non relocation?

        12. Did the trial court abuse its discretion and/or make an
        error of law under Factor 13, determining that [Father] has
        initiated much of the conflict between the parties?

        13. Did the trial court abuse its discretion and/or make an
        error of law by failing to take into account that Mother had
        indicated in her relocation petition that she was seeking
        employment, however, has changed that position, in that,
        she had substantial employment in this area?

        14. Did the trial court abuse its discretion and/or make an
        error of law by failing to take into consideration that Mother
        has had significant relationships over the past several years
        and had only a one-year relationship with her current fiancé,
        that she would see on a biweekly basis?

        15. Did the trial court abuse its discretion and/or make an
        error of law by failing to take into account the upcoming
        educational needs of [Child]?

        16. Did the trial court abuse its discretion and/or make an
        error of law in allowing the relocation prior to the marriage of
        the parties and significant ownership of property in the North
        Carolina area?

        17. Did the trial court abuse its discretion and/or make an
        error of law by failing to impartially [apply] all relevant
        statutory factors to the present case?

Father’s Brief at 10-12 (some capitalization omitted).

      We have explained:

        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

                                     -4-
J-S08014-20


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

A.D. v. M.A.B., 989 A.2d 32, 35-36 (Pa. Super. 2010) (quotations and

citations omitted).

      Section 5338 of the Child Custody Act (“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.A. § 5338. Section 5328(a) sets forth the best interest

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

81 n.2 (Pa. Super. 2011). Trial courts are required to consider “[a]ll of the

factors listed in section 5328(a) . . . when entering a custody order.” J.R.M.

v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis omitted).

      Section 5328(a) of the Act provides as follows.

        § 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

                                      -5-
J-S08014-20


       which party can better provide adequate physical safeguards
       and supervision of the child.

       (2.1) The information set forth in section 5329.1(a)(1) and
       (2) (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.

       (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.


                                     -6-
J-S08014-20


        (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.A. § 5328.

      Where a request for relocation of the subject child along with a parent

is involved, the trial court must consider the following ten relocation factors

set forth within section 5337(h) of the Act:

        (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.

        (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.

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

        (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.

        (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.




                                     -7-
J-S08014-20


        (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.

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

        (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.

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

23 Pa.C.S.A. § 5337(h).

     “The party proposing the relocation has the burden of establishing that

the relocation will serve the best interest of the child as shown under the

factors set forth in [Section 5337(h)].” 23 Pa.C.S.A. § 5337(i)(1).

     Within Father’s brief on appeal, Father challenges the weight the trial

court afforded the evidence and contends that the trial court incorrectly

weighed the evidence in Mother’s favor. Essentially, Father claims that – as

to almost every single custody and relocation factor – the trial court should

have weighed the evidence so that the factor favored him. See Father’s Brief

at 1-62.   However, our role as an appellate court is not to reweigh the

evidence. Indeed, as we have explained, we may only review for an abuse of

discretion. Further, we have observed:

        we consistently have held that the 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.

                                      -8-
J-S08014-20



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

citations, and corrections omitted).

      In this case, after reviewing the briefs of the parties, the relevant law,

the certified record, the notes of testimony and the opinions of the able trial

court judge, the Honorable Cathleen Bubash, we conclude that Father is not

entitled to relief and that Judge Bubash’s opinions, entered on August 29,

2019 and November 6, 2019, meticulously and accurately dispose of Father’s

issues on appeal.    Therefore, we affirm on the basis of Judge Bubash’s

thorough opinions and adopt them as our own. In any future filing with this

or any other court addressing this ruling, the filing party shall attach a copy

of Judge Bubash’s August 29, 2019 and November 6, 2019 opinions.

      Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/27/2020




                                       -9-
J-S08014-20




              - 10 -
                                                                     Circulated 03/18/2020 04:03 PM




                          I

  IN THECOURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYlVANIA
                         FAMILY DIVISION




Leann Weber,
                       Plaintiff,
        v.                                      No.: FD-13:"000236 ..008

 Doniel Kovacs;..
                       Defendant.




                              I                         .

       AND NOW, to    wJti this.28th day of August 2019, after a one and      1/2-day trial
and a review of the Portles' Memoranda of Law, Mother'srequest to relocate with
the Minor child LK. ageq 4, (hereinafteneferred to as "Child"] is Granted
                                    D.lSCUSSION
      The court held art expedlted 2 hour hearing on relocation hearing on June
                              ,.
4, 2019 which resultedin the June· 19,. 201.9 Order permitting Mother to relocate
with the. minor Child. In q1oking its deterrnlnotlcn. the court specifically reviewed
the relocation fcctors.set forth in 23 Pa. C.S.A. 5337 and the custody factors set
forth ih 23 Pa. C.$.. A. 5328. Fqfl.owing is an updated analysis after the full trlol ort

the matter.




                                           2
                                       Relocation Factors


1.    Natur�, qucdity,. textent of involvement and duration of the Childs
      relatio.nship with pc:frty pr9.posing relocotion Qnd the non-relocating party,
                         .I                                                           .   '



      $iblings and other.1significatit person.
      The Child L.K. is v�ry close with both parents. He did, however, spend the
      majority of overni@.hts with Mother.. Child has an older sibling   s�s. who lives
      with Mother and �ith whom the court would like to ensure o reloflonship,
                          I

      This factor favors K,\other.

2.    Ag.e,
       ..
            developmental
                     :    stagei needs. of Child and the likely lmpec] the
      relocation will h9ve on Child's physical, educational and emotional
      developm�nt with consideration for any special needs.

      The child does hot have special needs:' He does well here ih Pittsburgh and
      presumably, Will do well in N.orth Corollno with Mother. He is currently
                       ·1

      preschool age; so       any    move Will not disrupt his educofon, The      most
      important issue is. · that
                              .  he wi
                                    . l.l miss
                                           .   his. Father.
                                                        . . The. court believes
                                                                       .        thot the
      custody provisions of this Order will help reduce this impact.

3.    Feasibility of preserving the relationship between the non�relocating party
      ancf Child through_ suitable custody arrangements.
     . Father has had very regular .dovtrne with the Child in order to keep hlrn out
      of dovccre.wtuch has been.very helpful to the Child. Now that Child will
      be in preschool, this available time will be be curtailed. Father has had
      about 1 oo or so overnights per year. Mother's proposal gives Dad more
      than l 07 ovemights a year and      is, therefore. a feasible way to maintain the
      relationship between Father and Child. The use of Skype or face time will
      assist.
                         ·,

4.    Child's preference
      The child loves both Parents and is too young to voice a credible position,



                                            .3
                   5.   Established patterns of conduct of either party t.o promote or thwart the
                        relationship of. Chi,ldren and the other party.
                        Father hos told th'e Child that Mom's tionce is a 'stronqer'. which scared
                        the Child. Child is afraid to. let Father know thofhe likes Mother's ficnce.
                        Father is reguiarly- and significantly late      tor exchonqes, This factor favors
                                               I
                        Mother!                ;
                   6.   Whether relocation will enhance the general quality of life for the party
                        seeking relocation including but not limited to financidl, emotional              or
                        educcficncl benefits.
                                               '

                        Mother credibly testified that her quality of !ife will     mprove if she moves.
                        Mother's tlonce is.o North Carolina Highway Patrolman, earning in excess
                                               .     .
                        of $80;000. Mathe� and her fionce seem well suited and the Child does well
                        With him. The Covrt was          very favorably impressed with   Mother's flonce's
                        demeanor and professionalism, as well as his relationship with Child. Of
                        note, tie hos often made a point of deescalating wha't he viewed -os
                                               I                                                          .

                                               '
                        father's aggressiv� behavior. Thi� helps both .Mother cnd.chdd,
                   7.   Whether relocation         will enhance the general quality of life for the Children
                        including but not limited to financial, emotional and educational benefits.
                        If the child moves,' his life will be improved to the extent that Mother's is. He
                        will. though, of course. miss Father very much .. The Parties must manage this
                        and help the c.hH¢1 adjust. The reasons and motivations of each .party for
                        seeking or opposif,g relocation.
                                               I


                        Mother is engage.d to Sean Bridges who. lives in North Corollno. There .did
                        not seem to     be onv ill motive for her move. Father's opposition is because
                        · he loves his son a1d will miss him .

                                           .   ,



                                                                 4
.   .,,   ,,_,..
                                    _
                     8.   Past and presentl abuse committed by apart or member of party'i
                          household end w�ether there is a           risk of harm to the Children.
                                               I
                          This factor is. not applicable.




                                                        Custody factors

                Factor I: ''Which patty is more Hkely to enc.ourdge. and permit frequent arid
                                              ·'

                continuing contact b'etween the Child and another porty,"
                                                                           .•
                                              �             .'
                I believe that both Parti�s can encourage a relationship with the other, as they
                                              .                                       .
                did so while in Pittsburgh;.

                Factor .2: 11The present CJ'.nd past abuse committed by a party or member of the
                party's hcusehold, Whether there is a continued risk of hc;mn .to the child or an
                abused party and whlch party cen better provide ndequote physical safegvarcts
                and supervlslon of the child.11

                Father has been aggressive in the past though not to the level of cbuse;
                                          .   ·'

                Factor3 considers the p;arenfol duties performed by ecch party on behalf of the
                child.

                Both Parties do this.

                F.actor 4 directs the ·court to consider the need for stability and continuity in. the.
                C.hlld's.life.

                While a move will change things, it appears that Mother is making a good
                 .                                               .
                decision. The child is resilient and v�ry capable of adjusting.

                Factor S dfr.ee.ts the   Couh·, to consider the availability of extended family.
                                            .'           .         .                  '



                In    Pittsburgh; daycare. '10� not necessary because Mother and Father worked
                together so thot Father hod Child often when Mother wos working. Mother and
                Father both have family here. Mother hos no. family in North Carolina; however,



                                                                     5

-·--·--·-·"-·--· ....... _                                                                     ·---------,. ......_.
                                                                                                                 ,
                   ·•

                                                                                               .
                                                                              .,
                                                                              .{

                                 she may have the opportunity                                      to stay at home With her child. The Court values
                                 the benefits thqt being with extended fomily rnoy have onChild and how those
                                                                               I



                                 relatives may form support systems for Porents. These benefits do not trump the
                                 irnportonce of the Mother and Father to the Child,,

                                 Factor6 regards the child's sibling relat1onships.

                                 L.K •. hos an older sibling at Mother's home. At the time of trial'. Mother was.
                                 pregnant. These sibling �elationships wiil be very helpful to Child •
                                                                                   .
                                 Factor 7 provides that the Court must consider the "well-reasoned preference of
                                                                                   ·,
                                 �he. Child, based on the �hild's maturity and judgment.''

                                The child loves both Parents and 1s too young to voice o credible position

                                 Factor 8 directs the Court to consider the attempts. of either parent. to turn. the child
                                 against the other parent-,

                                 Father has discouraged ¢hild from having a relationship with M'other's flonce. This
                                                                                    I


                                was. lncppropriote.

                                 Factors 9 & 10, address the parties' likelihood of .maintaining a loving, stable, .ond
                                 nurturing i'elation$hip with the Child and which Party is more likely to..attend to the
                                 daily physical, emotional, developmental, educational, and special needs of the
                                                      ·.                               I




                                ·Child.

                                 Both Potties con do this .. Father heeds to improve his relationship .ond behavior
                                 toward .Mother when he ;js frustrated.                                 This factor tovors Mother.

                                 Factor 11 concems the proximity of the parties' residences.
                                                                                        '!
                                 If Mother moves to NorthCcrolinc, os permitted, they                                    wm be veryfdr·away.
                                 Factor.12 requites the Court to consider ecch party's. avc:tilability to core for the
                                                                                                                  .
                                                                                           I



                                 Child or ability to make �pproprlate child-care arrangenif:!nts.

                                 Both Parties con                      do this when the child is in their care.
                                                                                        J
                                                                                           I


                                ,factor 13 regarding conflict be.tween the· Parties and the Pqrties willingness to


                                                                                                          6
.......•..•...•..•........•.....• ·····----·-·············---·----   --·-----·-·-------------·-....-..                           -------··-·-.. ·-·-·--··--·-·o,•o,o•_o,_•_
cooperate.

There hos been far too much conflict between the Parties, often initiated by
  .                        �-
Father. Ihls must stop. This Factor favors Mother

Factor 14regards-.the hi�toryofalcohol and/or·drug abuse betwee.n the portles.

Not applicable
                                  .                                         .
Factor 15 goes to the mrntal end physical condition of a. party or .CJ member of a
party's· household.        ·
Not applicable
                           I
Factor 16 refers to any ·other relevant fo�tor.

None
                           tl •




                      .   .i          .   .   ..   .   ..   .   .   .
                      CU�TODY ORDER FOLLOWS .ON THE NEXT PAGE
                           •




                                                   7

                                                                        ·--·-----·----··---·--·---
     ..


               INTHE COURTOFCOMMON PLEAS OF ALLEGHl:NY COUNTY,PENNSYLVANIA
                                    FAMILY DIVISION

           Leann Weber,

                                  Plaintiff,                      No...: FD-l 3�000236'"008

                  v,

           Daniel Kovacs,

                                  Defendant.




                            FINAL .CUSTODY COURT ORDE'R AMENDED
                                (FACTOR DISCUSSION ON PRIOR PAGES)

                 And Now this 28th�day of August 2019, regarding custody of L.K. {aged 4}; It
                                    I
          is hereby Ordered   os folJows:
          I.     LEGAL CUSTODY

                 The Parties shall continue    to share Joint legal custody in all creos exc.ept as
           stated below of their f'0inor Child LK., aged 4. Joint iegal custody means that
           both parents have the right duty and responsibility to participate in the decision-
           making process on lssuesinvolvinq theChild.
                 Joint legal custody also. means that both parents shall be entitled to equal
                                   r                          .                           .       .
           eceess to the Child's important records, including records of medical and dental
           treatments, school records .ond records of octivities. It is each parent's
           responsibility to request copies of the ChHq's school schedule, special event
           notifications, report cards, standardized test     scores.    meeting notices and other
           similar items directly from the Child's school. Each parent shall notify the other of
           any.appointments that.he or she has made on behalf of the Child with rnediccl.
           dentol, cpticcl, psvcholoqlcol or other healthcare providers, as well as any
           oppolntments. meetin�s Or conferences With any educationql provider Su.eh
                                   !


                                                       8

--·-..··------·--·---           --------------------
     notice must be given sufficiently in advance so that the non-scheduling parent
     may attend if he or she:wishes to do         so. Each parent shall.Provide the other with
    .ot least one ( 1) week cdvonce notice of school or extra-curricular activities
     whenever possible. It is Ordered that 'Our Family Wizard'.be.1.Jsedfor this purpose.
                                '·


          The parent then having physical custody. consistent with the other
     provisions of this Order. shell make ministerial decisions involving the Child's dov-
     to-day living.

    II.    PHYSICAL CUSTODY

           1.    The portles shall share legal custody of the minor child.

           2.    .Mother shall have primary phvslcol custody.

           3..   Father shall hove pqrtial physical           custodv.Jn   Pittsburgh, as follows:

                 a. From thE:lifirst Saturday in June until the third Soturday in August,

                      each year ..

                 b. One. weekend per month in September, October, February,

                      March o,nd May, eai::� year; os agreed upon by the parties.
                                r                        .•           .         '
                 c. From the Wednesday before Thanksgjving                 vntil the Sunday after,
                      eochveor.

                 d. From the fir�t day until· �he second to the last dc:iy of holidoy

                      break stdrtinQ in December and ending in January.

                 e. From Gocpd Friday through the day before spring break ends in
                                 I
                      April.     l

          f.     .At any othenftmes. as the porfles rnov 5'.)greei

          .g .   Mother shall        be responsible for ail travel related to Father's periods


                                                    9

·-----�--·····--------------------·                                                          -------·-
    ...
                           ofpartiai c0stody. including costs Unless Father frovels to N.

                           Carolina to see              the Child;
                                          t




                     h.    If Mother travels to Pitt�burghWith the Child; Father shall be
                                          '
                           provided    wi/h 50% of the overnights available. If Fathe.r is working,
                                          .
                           Mother may have Child in the daytime.

              Ill.   Miscelfaneous
                             :     .      '
                                       . ,f               .     .                 .·

                     i.    Father shall hove Focetlrne calls with the minor child each evening

                           while in Mother�s custody prior to bedtime.
                                          1
                                          ....



                     J.    The: parties sholl consult eoch other with respect to the education
                           and religious troir'iing of the Child; the general welfare of the Child;

                           the medical care of the Child: and other like matters ofirnpcrtcnce

                           affecting th� Child. The education, development, health and well-

                           being of the Child shall be the paramount consideration of the
                           Mother and1the father.

                     k,    Each party �haH, ct all times, keep each other informed of-his or her

                           plate of residence and telephone numberand shall promptly notify
                                              I                                        .   .



                           the other of ·any change, giving the oddress of the new place of

                           residence and the new telephone. number. Each party agrees to

                           keep the. other informed of the whereabouts and activities of the

                           Child While with thot party. They mutvally agree that if either of

                           them has knpwleqge of any illness or occident or other
                                                  I .
                           clrcumstonoas seriouslv affectino the health or welfare of the Child,


                                                                     10

-·-···--·--·····-----·--
     �.




                     the Mother or Fath�r. as the cose may be. shall promptly notify the

                     other of such Circumstances.

               I.    Each party shall have the obligation to have the Child ready for

                     beginning end the end of scheduled perloosot partial custody and

                     to encourage th.em to participate in the successful implementofion

                     of the plan ordered by the· Court While in the presence of the
                                   '

                     Child. neither of the parents nor significant others sha I.I make any

                     remarks or    qo. anything
                                         .
                                                disparaging. which can Jn a11y way be

                     construed as derogatory or uncomplimentary to the other parent

                     ahd it shall 9-e the dl.Jty of each parent to uphold the other parent

                     as one whom the Child should respect and love.
               hi.   The Parties   to use QFW J9 choose specific times for all meetings end
                     to comrnuniccte about important rnotters relating to the Child.

               n.    Child is to be enrolled in a preschool in N. Carolina.
                                       !
                                       I   .    . .                      .     .

               o.    This Order soall remain in full force ond effect until furtherOrc:ler of

                     Court or Wriften agreement of the parents.




                                   ·,i
                                       I
                                                                                    ·the Court:




                                                                                                J.


                                                      ll

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                                                                                                                        Circulated 03/18/2020 04:03 PM
                  ..,..                  ,.




                                                  IN THE COURT OF COMMON Pl�AS OFALLEGHENY COUNTY, PENNSYLVANIA
                                                                          FAMILY DIVISION


                                                DOniel Kovats

                                                                       Plaintiff,                No.: FD-13,.000236
                                                         v.                                      Sup. Court No: 1462 WDA 2019

                                                Leann Weber

                                                                       Defendant.



                                                                                      OPINION
                                               November 6, 2019                                             JtJdg.e Cathleen Bubash


                                                      Father, Dahiel Kovacs (hereinafter "Fother''] has appealed from              my A1Jgust
                                               28�. 2019 Custody Order grontrng Mother, t.eonn Weber1s (11Mother11) request to
                                               relocote to North Carolina with the parties' son.Lk., age4 ( Childi
                                                                                                               11           1).
                                                                                                                                  Becouserny
                                              . Order was. within my discretion and is in Child'.s best interest, it should be affirmed.



                                                                                    Background

                                                     The parties were never rnorrtec. They were involved in an on-again off-
                                              .again relationship beginning, in 20l0 and were living together when Child was
                                                                                           .                        .
                                               born, separating not long after. Their relofionship was tumultuous and their first
                                               custody order evolved out of the settlement of a Protection from Abuse through
                                               o Non-PFA Consent Agreement.

                                                      Mother has olways had primory custody of Child, with Father having
                                               approximately 100 overnights per year. Fcither, however, also exercised custody
                                               most weekdays while Mother was working as the parties agreed this was


                                                                                           2

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          r.            t··




                              prefercble to Child being in dcvcore ..

                                              Mother worked as a dental hygienist and father is a selr-ernployed personal
                              trainer with flexible hours .. M0;ther has an eleven year old daughter from a former
                              relationship; Fqtherhas no other children. Both parties have extended family in
                              the Pittsburgh area; Approximately a year ago, Mother met Sedn Bridges at o
                              wedding and the two began a relationship; Mr. Bridges. lives in North Carolina
                              where he is a state trooper. The two became engaged lo be married1 and
                              Mother is expecting his child. Mother tiled a Notice of             Propose<:! Relocatioh on
                              rebruary 6, 2019 and Father filed a timely counter-cfftdovtt.

                                             An expedited two hour hearing was held on Mother1 s petition on June 4,
                              2019 end I permitted her to relocate by my Order of Court dated June 19, 2019.
                              Mother then moved to North Carolino With Child.i Father filed a Cornplcint for
                              Custody as well as a Motion for Reconsid�ration and a full trial was scheduled.
                              After a one and a half day trial ond consideroflon of a post-trial Memorandum of
                              Law submitted by Father, I entered· my August 28 ..2019 Order. dgqin granting
                              Mother's request to relocate andsetting forth a comprehensive custody schedule
                              for the portles, In mdkihg · my decision, I performed on analysis of th� custcov
                              factors of 23 Pa;C\S.A. §.5328 and the relocation factors of §.5337.

                                              This appeal followed. Father has asserted that I committed seventeen (l7}
                              separate errors. H.e asserts that I erred or abused tny discretion in my analysis              of
                              both the 23 Pa.c.s. §5337relcx;ation foctcrscnd the custody factorsof23 Pa.c.s.
                              §5328, as well as asserting that I. failed to apply those. stotutes impartially and
                              ign.ored evidence ..




                              i Mother testified thcit the couple become engaged over the Christmas holiday. Father csserts it
                              was later, after the request tor relocctlon. I found Mother credible on this issue but the date of
                              their engdgement played a rninrmol role in· my analysis. .              .  .
                              2 Mother moved earlier thoh originolly contemplafeo causing. an unforlunote gop in. Fother's
                              cu�ody                                        ·.

                                                                               3

··-···--··-·""'"""'-···-'""'•"····------..   ·-·-------
          j,




                                                     Discussion
                     While I will address Father's assertions of error generally below, I first note
               that while I found both otthese parents to be competent and committed parents
               who both want the best for Child, my role is to determine whatis in the best interest
               of the Child, not the. parents .. These parties have historically had o very difficult
               time. co-parenting Child due to their inability to properly communicate with each
               other. Fault for this lock of communication Hes with both porfles.

                     I dld, however, find Mother's descriptions of the parties' day to day
               interactions with Child end with each other to be more credible .thon Father1 s. I
               also found Father's testimony regarding his conslstentlcteness in. picking up and
               returning Child   from his periods of custody not to be credible.. With regard to the
               parties' testimony concerning Father's aggressive1endendes toward Mother and
               her flonce. I also found Mother to   be more credible. on· issues of credibjljty and
               weight of the' evidence, the SuperiorCourt defers to "the findings of the trial judge
               who has had the opportunity to observe the. proceedinqs and demeanor of the
               witnesses." Billhime v, Billhime, 869 A.2d 1031, IOJ6 (Po�Super;200.5) (citation
               omitted}. ln this case, I found that Father could see only his §Jood qualities as a
               Father; but also artificially and negatively portrayed Mother and attempted to
               negate herverv r�al role. in the Child's life as her primary cusrodlon.

                     In the first twelve paragraphs
                                                .   of. his l .925{b) Statement, Father olleqes'l failed
               to properly weigh and apply both the statutory custody factors of 23 Pa.            c:s.
               §.532$ dnd therelocorlon teeters of §5337. I ernphosized the.tcctors which I found
               were entitled to the most weight in this case. "lr is within the trial court's purview
               as the finder of fact to determine which enumerated best interest factors are most
               salient and critical in each particular child custodvcese.. llM.J.M. v. M.L.G;, 63 A.3d
               331, (Pa. Super;20J3): opp. den. 68 A.3d 909.




-·-·----·-·-···----··-------"        ·--------------------------
A. Relocation

       . Father asserts that .1 erred by finding that Retocctton Factor I tovored
Mother because I did not give "proper weight and consideration to the Father's
role in the child's life. . " I did, in fact, recoqnize Father's Signifi<.:ar.it tole, but also
found Child has spent a majority of his overnights With Mother, who hos been his
primary custodian tot his entire life, He also        has   an older sibling   who   lives with
Mother and will soon hove on additional sibling who will be living with Mother, so
I found   this factor w.e.ighed in her tovor. Factor I requires that .1 examine            the
"nature, quality, extentot involvement, and duration of the Child's reloflonshlps"
not just with the parents, but wlth siblings end other significant persons; I found
this factor to tcvor Mother.

       Likewise� contrary to Father's assertion that I failed to "toke into occount"
Child's contacts w.ith extenqed family, I did consider that Child has extended
torriily which act cs a support system in the Pittsburgh area and none in North
Carolina. I found Mother credible; however, when she. described the visits her
mother and other relatives hovemode and            will make to NOrth Corofno. Mother's
testimony demonstrated mor she understands thejrnportunce of family and will
preserve. Child's connections to his extended relcttons. She said. of maintaining
those ties: 11So family - we don't lose ties because we moved. Our relationships
are .still intact.''(TR, 8/20 p. 149). Additionally, my Order grants Father extended
periods of custody in Pittsburgh and he has olso indicated he will preserve Child's
relationship with both his and Mother's.extended family, I found; however, Child's
relationships With his siblings to be more important them his relationship with his
cousins and other extended relations when weighing this factor,                         Father
a pp eared to Q ive no importance to Child's reloflonshlp with his sibling due to their
age difference {TR. 8/20 p .. 81-82).


                                               5
                 Father next argues that! erred in mv.onolvsis of Factor 3 by determining that
       Mother's proposal provides Father a feasible opportunity to preserve his
       relationship with Child .. Mother's proposal and my Order provide Fatherwith more
       overnights than he hod before the relocctien, He is provided long periods of
       custody during holldovs.. summer, and long weekend�, regular telephone and
       Facetime contact, and additional periods of custody should he travel to North
       Corolino to visit Child; Father has a flexible schedule as he owns his own business
       and could make orrcncernents to travel to North Carolina.

                 I omcoqnlzontthot-the time Fother hosspentwtth Child,.vv.hich was almost
       daily, wUl be impacted by the relocation; As I noted in rnv Order, however, this
       doily contact would have been curtailed anyway as. Child began attending
       school.     The. custody schedule set out in my Order will provide Pother with a
       feasible way of mdintairiing his meaningful relationship with Child.

                 Next, Father focuses on my analysis of Factor 51 whether either pcrtv's
       conduct has demonstrated an attempt to "thwort the relationship of Children
       ond the other party." I found that two Separate aspects of fdther' s behavior
       resulted in this factor weighing in Mother's favor.        First, Mr� Bridges' credible
       testimony made clear that Father was .ontoconlsfic toward Motheris ficnce on
       numerous occasions       and behaved toward him in an unfriendly fashion in front of
       Child. {TR. 8/20p, 129-131, 13.4... 135). Father also told Child that Mr. Bridges was a
           "stranger" which I found was intended to cause Child to fear and/or mistrust M.r.
       Brid�es. (TR 6/4 p. l l 3; TR. 8/20 p. 100). seeondlv, Father was perpetually and
       significa11tly late for custody exchanges, often more than an hour. This caused
       Mother to be in stressful situations Where she hod to get coverage for Child so she
       could make it to work, or where Child was returned close to bed time, rather than
       at en hour when he and Mother could ehjoy         cm evening together.. This oehovlor
           happened too consistently tobe mere inadvertence . .Father himself testified thot


                                                   6

--·-----
he was often lote becouse h'e was eating dinner with Child. I found that this
behovlor was purposeful ond dernonsfrated that Fother holds Moth.er in disdoin.

       In the fourth parograph ot his Stclement.
                                             .   Father. conflates
                                                          ..       these two
behoviors. I did not find .. nor did. Lstote in     my Order that ·by      be.'ing lote, F9ther
ctternpted to turn Child: against Mother's fionce... I found, instead, that Father
behaved - both by acting aggres:sive'ly "toward Mr:. Bridge$ and ·i.n disrespecting
Mother·' s time ,With Chilo - in.. a rnonner whtch would serve to thwart the
retotlonsblp between ·Child and.,Mother ·OS. well csbelween Child and Mr. ...-e>ridges·.
Conversely, Mr: Bricfges. corrrrnendoblv behoved in a manner designed to de;;. ·
escalate the ·strifa '.Foth.er"s behavior was· .oaus.ing ..

       Father also. claims I erred by finding Child's. life wou lcf be enhanced by the.
move :o.s· contemplated b.y_     Facrcr 7; .As the.portv proposing relocchon .. Mqfh�r
bears the burden ofprovihg relocotlon will;serve:the children's best interests. See
23 P.a.C.;S.A. § 53·37.li}, S.J.S� v, M.J.S"!/ .76 A..39 .S4L 5.51 {Pd: Super...2013.) -, l· found
that Mother met her burden. l found fhat Chiid''s life            wili be enhanced by the
enhoncernent of _Mother's Hfe, .both financially and emotionally. Mother testiffed
that she will be able to stay at home for a time with Child .ond his           new- sibling due
to her ticnces sufficient income, Which Will be helpful for Child's transition. (TR.
B}-20· p .. 159). Addlti.onolly, M.othet ond her flonce seem well suited and
demonstrated o caring and gen'tle attitude toword each other which will be a
g.bod atmosphere for Child-to le·arn obout adult reloflonships -.

       I acknowledged that ChJld will miss his Father and that Father provided
·significant   and beneflclcl things to Child'.s fife. He .will still be cble t.o do so under
the custody terms o.f mvoroer. Child will not have d<iily contoct wlth his. cousins
and. extended     fam.ily with _th.e relocotion, bu.t he will have daily contact- with his
·siblihgs which I, deemed to be more irnportont. He will be able to maintain his
r-e.lationship.s with his couslns duri0g holidays and extended visits to Pittsburg.h


                                                7

          ·----------------------.-- -·-                                                             ..
                                     In all, I found that the relocation factors primarily favored Mother, The terms
                            of    my Order will allow Mother to       have happiness in her new marriage and new
                            baby which will tie beneficial to Child and. his happiness os well, while also
                            allowing Fatherto rnolntoln o significant dncl meaningful relationship with his son.

                            B. custody factors

                                     Father next finds fauit with my analysis under custody factors 2, 4, 5; 8, 9., 1 Q,
                            11, and 13. In essence, all of his cornpldlnts come down to. a disagreement with
                            my determination that the lion's share of the problems betwe.en the parents were
                            caused by Father, who I found to be both passively and actively aggressive in his
                            behavior toward Mother end her fionce. both important people in his son's life.

                                     The parties both testified that they had o difficult time communicating: I did
                            not conclods that all toult fell to Father. I did fihd from the testimony, however,
                            that it was Father who exccerboted the situation by being consistently late, by
                            attempting to thwart the relationship with Mother's ficnce. by acting in an
                            aggressive      manner      at        exchanges,       and   by   interfering   with   Mother's
                            communtcotlon with Child when he was in Fother's custody. {TR. 8/20 P� 144).
                            Moreover, despite being ordered to do so on more than one occasion since April
                            20.l 9, Father refused to communicate with M.oth19r using "Our Family Wizard", only

                            registering for i.t on the day prior to trial in August which could hcveellmtnctec or
                            reduced some of the breakdown in comrnunlcotlon. {TR. 8/20 p. 9.2-93, 14.1-142).

                                     Additionally, I found Father's fear that Chilq will lose his religion, lose his
                            connection with tornily. not receive a good education, and not be properly
                            porented if he relocated With Mothe.r to be exaggerated. His attempts to paint
                            .Mother os mentally imbalanced, 'Unstable, flighty and promiscuous, likewise, were
                            notreolisflc, (TR. 8/20p.
                                                   .
                                                      80.;81, 169-170).
                                                                     .




                                                                               8

....... ......,.   �...._     ,                              ..
                                                             ,
..

              Father complains that I did not findthat Factor 11 regarding distance and
     proximity precluded relocation. Many relocation cases result lrt o pare qt living a
     great dlsto nee from a Child.       But distance is but one of the factors to be
     considered. When weighed against the factors to which r gave. greater weight,
     this   factor was less important.

              lmportaritlyi I found, based on the testimony, that Factor l otthe    custody
     factors was more important and that of either party, Mother was more likely to
     encourage o relationship with Father,. as evidenced by her willingness to provide
     Child'$·trdnsportation tovisitwith Father in Pittsburgh, as well as providing him with
     an adequ.ate substltute for regular     access - induuing exlensive holiday ond
     summer custody, and liberal custody in North Carolina;              In contrast; Father
     proposed to oniy allow Mother to exercise partial custody of Child only in
     Pittsburgh ·it her relocation petition was denied. [TR. 8/20 p. 86). lt·wqs only after
     prodding that he· agreed Child could spend summers and holidays in North
     Carolina with Mother, (TR. 8/20 p. 87:.;88).

              My review of many of the. custody factors resulted in ah almost neutrol
     balance. between the parties, but the relocation factors favored Mother as did
     the factors dealing with attempts to thwort the relationship with the other parent

     C� Father's Remaining Complaints

              In paragraphs 8 through 12 on the third page of his l925(bJ Statement,


     employment in North Corollno        =
     Father complains that I did not properly weigh Mother's decision not to seek
                                             that I failed to consider that she had been
     involved in "significant relotionshlos" over the post several years. He also
     complains that I did not consider Child's upcoming educational needs or that
     Mother was not yet married and that she and herflonce had changed addresses
     since the filing of the Relocation Notice.          Lastly, he ccmplclns that I was not
     irnpartialin my application of the relevant statutory factors .

                                                    .7




                ----- ---------------------·-·------·-·--·-·
                               Mother indicated in her initial Notice of Relocation that she was seeking
                         employment cs-o dental hygienist in North Caronna. Afterwards, Mother decided
                         not to seek employment but to stay home with her children. J dldnotffnd that this
                        indicated she had engaged in deceit or that she could not make up her mind.
                        She and her ficnce ultimately purchased a lot and new home in a new
                        development. I did not find this to be concerning either. (TR. 8/20 p. l.l SJ.

                               I, likewise, did not find the fact that Mother dated two men in the three
                        yeu1s lhe porlies were aµtli'l .10 be �Videric..:e of promiscuily, flightiness or instability,
                        which seemed to be the inferences Father expected me to drow.

                               Lastly, Father questions my impartiality iri the application of the statutory
                        factors. As I stated above, end cs I also stotedln the courtroom ond in my Order,
                        J found both' parties to be competent, loving parents who care deeply for their
                        Child. In this cose. I had to choose which parent would be the primary custodian
                        and where the. Child should. live. On balance, I found that it Was in the Child's
                        best interest to remain With the parent who had always been his primqry
                        custodian and that he should live. with Mother and his siblings in the home she is
                        making   with   her new husband-to-he. That I did not rule in. Pother's favor is not
                        evidence of bias.

                                                                Conclusion

                              Becouse I dndiy:zed this cose in light of the relevant statutory factors and
                        because my August 28, 2019 Custody Order is supported by the evidence end
                        serves the best interests of Child, it should be affirmed�




                                                                     10


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