J-S96030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

R.J.V.                                          IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellant

                     v.

R.E.V.

                                                    No. 1227 WDA 2016


                 Appeal from the Order Entered July 15, 2016
                 In the Court of Common Pleas of Blair County
                    Orphans' Court at No(s): 2015 GN 1929



BEFORE: BENDER, P.J.E., BOWES, J., AND SOLANO, J.

MEMORANDUM BY BOWES, J.:                         FILED JANUARY 30, 2017

         R.J.V. (“Mother”) appeals from the July 15, 2016 custody order

awarding R.E.V. (“Father”) primary physical custody, during the school year,

of their fourteen-year-old daughter K.V., and granting Mother partial custody

as dictated by the terms of the court’s order. We affirm.

         Mother and Father married on September 27, 2001, and K.V. was born

of the marriage on April 3, 2002.        Mother and Father separated, and

subsequently, agreed to a custody arrangement wherein they shared

custody, rotating physical custody every four days based upon Father’s work

schedule. That agreement persisted throughout the proceedings.

         On July 2, 2015, Mother filed a complaint for custody requesting

primary physical custody.      At that time, Mother was living in Clearfield,
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Clearfield County, and traveling often to visit family in Bradford, McKean

County. Father resided at the marital residence in Altoona, Blair County. An

evidentiary hearing was held on July 13, 2016, wherein Mother and Father

testified, and K.V. spoke with the court in camera.      The court entered an

order dated July 15, 2016, directing Mother and Father to share legal and

physical custody of K.V., and awarding Father primary physical custody

during the school year, with Mother receiving partial custody on alternating

weekends, and one weekday evening each week.            Mother filed a timely

appeal and provided a contemporaneous Rule 1925(b) statement of errors

complained of on appeal.     The court filed its Rule 1925(a) opinion.       This

matter is now ready for our review.

      Mother presents two questions for our consideration:

       I.   Did the trial court abuse its discretion in failing to address
            the relocation factors in its opinion denying the relocation
            request of Mother?

      II.   Did the trial court abuse its discretion in finding that the
            custody factors weighed in favor of placing the child in
            Father’s primary custody and was supported by clear and
            convincing evidence?

Mother’s brief at 8.

      We review a trial court’s custody order for an abuse of discretion.

D.K.D. v. A.L.C., 141 A.3d 566, 571 (Pa.Super. 2016). As such, we defer to

the trial court’s factual findings that are supported by the record and its

credibility determinations. Id. Nevertheless, we are not bound by the trial



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court’s deductions or inferences, nor are we constrained to adopt a finding

that cannot be sustained with competent evidence. Id. Thus, this court will

accept the trial court’s conclusions unless it is tantamount to legal error or

unreasonable in light of the factual findings. Id. at 571-572.

         In a custody case, the primary concern is the best interests of the

child.    Id. at 572.    Moreover, “the best-interests standard, decided on a

case-by-case basis, considers all factors which legitimately have an effect

upon the child’s physical, intellectual, moral, and spiritual well-being.” Id.

(citation omitted).

         Mother first asserts that the trial court erred in failing to consider the

relocation factors set forth in § 5337(h)1 of the Child Custody Act in addition

____________________________________________


1
    Section 5337(h) of the Child Custody Act requires the trial court to

consider the following factors when a party is relocating:

         (1)   The nature, quality, extend 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 state, 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.
(Footnote Continued Next Page)


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to the best-interest factors outlined in § 5328(a), which we address infra.

Mother maintains that the court must address the ten factors enumerated in

§ 5337 in any case involving relocation and custody.        She concludes that,

had the court weighed those factors, the outcome would militate in favor of

granting her primary physical custody of K.V.

        We discern no trial court error. In awarding Father primary physical

custody of K.V. during the school year, the court considered all sixteen of
                       _______________________
(Footnote Continued)


      (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 relocation, including, but not
             limited to, financial and emotional benefit or educational
             opportunity.

      (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. § 5337(h).



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the best-interest factors pursuant to § 5328(a) of the Child Custody Act.

Under subsection (a)(16), mandating an examination of any other relevant

factor, the court explained, “In light of our decision herein to award the

Father primary physical custody during the school year, we do not believe it

necessary to specifically address the relocation factors. Further, we believe

that the elements set forth in such relocation factors have been generally

addressed above.” Opinion, 7/18/16, at 21.

     This Court considered the applicability of the ten relocation factors in

D.K. v. S.P.K., 102 A.3d 467 (Pa.Super. 2014).         In D.K., following a

separation, the mother moved in with her parents in North Carolina. At that

time, the father and children resided in Pittsburgh, Pennsylvania.       The

parties entered into a custody agreement permitting the father to maintain

primary physical custody of the children in Pennsylvania, and providing the

mother with periods of supervised custody in North Carolina. Approximately

one year after entering into this agreement, the mother filed a complaint for

custody seeking primary physical custody. The court subsequently awarded

primary physical custody to the mother, and the father appealed.

     On appeal, father argued, inter alia, that the mother failed to comply

with the relocation procedures delineated in § 5337.     He contended that

since the children would be relocated to North Carolina, the mother was

required to provide him timely notice of her intention to relocate the

children. As it concerns this matter, we held that § 5337 anticipates that a

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custodial parent would be relocating and that “where neither parent is

relocating, and only the custodial rights of the parties are at issue, section

5337 of the Child Custody Act is not per se triggered.” Id. at 474. Hence,

we concluded that, where neither party is relocating, the relocation

provisions under § 5337 do not apply. Id. at 472. Nevertheless, we held

that, in a case where a child stands to move a significant distance, the trial

court should still consider the relevant factors of § 5337(h) in its § 5328(a)

best interest analysis. Id. at 476.

      Herein, Mother resided in Clearfield and Father lived in Altoona when

Mother filed her complaint for custody.     Thus, as in D.K., supra, the trial

court was not per se required to consider the relocation factors listed in §

5337(h). However, since K.V. would reside in Clearfield if Mother obtained

primary physical custody, the court was bound to consider the relevant §

5337(h) factors in its best interest analysis.

      We find the trial court did not err in failing to address the relocation

factors specifically, but rather, confirmed that it considered the factors

relevant to K.V.’s potential relocation as required by D.K., supra. We note

that there is significant overlap between the best-interest factors and the

relocation factors.    Instantly, the court found that both parties had

performed, and were capable of performing, all parental duties. In addition,

remaining in Father’s care would permit K.V. to attend Bishop Guilfoyle High

School where many of her friends from elementary school would also be

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attending. On the other hand, if K.V. were required to reside in Clearfield,

she would be enrolled in an unfamiliar school in an unfamiliar area.     The

court also noted that K.V. had close family relationships in Blair County and

that she maintained a good relationship with Father’s girlfriend. It reasoned

that those individuals would be available to provide K.V.’s after school

supervision. It found that similar relationships did not exist in Clearfield.

Finally, the court relied upon fourteen year-old K.V.’s well-reasoned

preference to remain in Father’s custody during the school year.

     When viewed in light of the relevant relocation factors, the trial court

provided ample reasoning for why it deemed that K.V.’s best interests were

met through the stable environment and educational opportunities provided

by remaining in Father’s care rather than moving to Clearfield to live with

Mother. Hence, no relief is due.

     Next, Mother contends that the trial court improperly weighed several

of the best-interest factors in favor of Father.     The Child Custody Act

enumerates the following factors the court must consider in determining the

best interest of a child when awarding any form of custody:

     (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.

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     (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 efforts to protect a child from abuse by
          another party is not evidence of unwillingness or inability
          to cooperate with that party.




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       (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).

       Mother’s argument in this regard is multi-faceted.        First, Mother

argues that the court did not properly consider Father’s decision to prevent

K.V. from relocating to Clearfield when Mother first attempted to move with

the child. She asserts that the court trivialized Father’s unwillingness to put

her and K.V.’s needs before his own. Mother also claims that the court did

not properly consider her status as the primary caretaker.      She maintains

that the court failed to find that she was less fit than Father in tending to

K.V.

       In addition, Mother alleges that the court gave too much weight to

K.V.’s expressed preference to stay with Father. She avers that, although

K.V. prefers Father’s style of discipline, K.V. has engaged in self-harm while

under his supervision.    Lastly, Mother notes that Father’s work schedule

requires him to secure the aid of third parties to supervise K.V., whereas she

would be able to nurture the child full-time. Mother concludes that the trial

court erred in failing to determine that she provided a more stable

environment for K.V., and thus, that it was in K.V.’s best interests to reside

with her. We address Mother’s claimed errors jointly.

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      Herein, the trial court found that Mother and Father had demonstrated

continuing contact with the other party since the inception of the custody

agreement. The court noted one incident, prior to the custody agreement,

where Father was prompted to remove K.V. from the marital home when

Mother informed him that she was moving to Clearfield with the child. The

court credited Father’s explanation that he feared that Mother was taking the

child permanently, and that he kept the child only until he had consulted

with an attorney a few days later. The record reveals no abuse of discretion

in this regard. Mother discovered K.V.’s location after Father removed her

from the marital home and the parties entered into a custody arrangement

shortly thereafter.

      In assessing § 5328(a)(3), the trial court found that both parties were

capable of performing parental duties.        The court recognized Mother’s

comprehensive contribution to the child’s development.       Nevertheless, the

court observed that Father had also provided care, completed chores outside

the house, and volunteered for school activities when he was available. As a

result, it found that both parents had carried out their parental duties and

were capable of continuing to do so. Although Mother is insistent that her

role as the primary caregiver should outweigh the factors relied upon by the

trial court, we discern no abuse of discretion in the court weighing this factor

equally between the parties.




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      With regards to K.V.’s preferences, the court found K.V. to be an

“intelligent, thoughtful, mature, and articulate young lady.”              Opinion,

7/18/16, at 12.       Essentially, Mother argues that K.V. wants to be with

Father because he is less of a disciplinarian. The court acknowledged that

Mother and Father employ differing discipline styles and noted that K.V.

responded more positively to Father’s methodology.           However, the court

reviewed K.V.’s testimony as a whole, and found numerous reasons as to

K.V.’s expressed inclination toward remaining with Father. The court stated

that K.V. and Father enjoy many of the same activities, that Father keeps

his promises, and that K.V. enjoys a close, trusting relationship with Father’s

girlfriend.   The court emphasized that K.V. desired to remain within the

Altoona   school   system     where   she   has   friends   and   enjoys    various

extracurricular activities.   Finally, it remarked that K.V. conveyed that she

wishes to stay Catholic, the faith she shares with Father alone. In this vein,

she aspires to attend the local Catholic high school.         In light of K.V.’s

numerous and well-articulated reasons for remaining in Father’s care, we

find the court did not err in weighing this factor in favor of Father.

      Finally, the trial court considered each party’s availability to care for

the child under § 5328(a)(12). The court determined that due to K.V.’s age,

this factor had little weight. Nevertheless, it noted that Father had several

family members in the area who were available to care for K.V. in an

emergency.     On the other hand, although Mother would be available full-

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time, she would be reliant on non-family members in case of an emergency.

The evidence of record supports the court’s determinations in this regard,

and therefore, it did not abuse its discretion in finding this factor favors

Father.

      In summary, we conclude that the trial court did not abuse its

discretion in considering the statutory factors and awarding Father primary

physical custody of K.V. during the school year and granting Mother partial

custody as dictated by the terms of the court’s order.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/30/2017




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