J-S39017-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

  F.F.                                         :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
  R.A.L.                                       :
                                               :
                       Appellant               :   No. 961 EDA 2019

                Appeal from the Order Entered February 27, 2019
                 In the Court of Common Pleas of Monroe County
                        Civil Division at No: 139 DR 2015,
                                    9167 CV 2017

BEFORE:      GANTMAN, P.J.E., STABILE, J., and STEVENS*, P.J.E.

MEMORANDUM BY STABILE, J.:                           FILED NOVEMBER 1, 2019

         R.A.L. (“Mother”) appeals from the order entered February 27, 2019,

which denied her request for relocation in this child custody dispute. The order

awarded shared legal custody of L.F. (“Child”) to Mother and F.F. (“Father”),

and awarded primary physical custody to Mother if she returned to Monroe

County from Montgomery County by September 1, 2019. If Mother did not

return to Monroe County by September 1, 2019, the order awarded Father

primary physical custody of Child. The order also denied Father’s petition for

contempt. After careful review, we affirm.




____________________________________________


* Former Justice specially assigned to the Superior Court.
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       The record reveals that Mother and Father met in approximately 20141

and began dating sometime thereafter. N.T., 10/26/18, at 53. From the start,

drinking and domestic violence appear to have marred their relationship. See

id. at 25-26. Mother obtained a Protection From Abuse order against Father

by agreement and without admission in February 2015, which lasted only sixty

days. N.T., 9/26/18, at 55-56; Defendant’s Exhibit 9 (Final Protection From

Abuse Order). Mother and Father rekindled their relationship, and Child was

born in February 2016. The parties married in January 2017, but separated

only four months later, in April 2017, after two further incidents of domestic

violence.2 See Plaintiff’s Exhibit 8 (wedding photographs); N.T., 9/26/18, at

43-44, 58-59, 63. Mother then moved in with Child’s maternal grandparents,

while Father remained in the parties’ apartment. N.T., 9/26/18, at 44; N.T.,

10/26/18, at 90.

       On December 8, 2017, Father filed a complaint in custody, in which he

requested shared legal and physical custody of Child. However, the trial court

dismissed Father’s complaint without prejudice on December 13, 2017, due to

his failure to include a blank criminal record/abuse history verification form.

See Pa.R.C.P. 1915.3-2(a) (“The party must attach a blank verification form

to a complaint, counterclaim or petition served upon the other party.”). Father
____________________________________________


1 Father stated initially that he met Mother “six years ago.” N.T., 10/26/18,
at 25. He then stated that he had “known [Mother] for five years. No. Four
and a half years.” Id. at 53.

2Mother and Father were in the process of a divorce at the time of the custody
proceedings. N.T., 9/26/18, at 47.

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filed a second complaint on June 13, 2018, this time requesting sole legal and

primary physical custody. The record indicates that he again failed to include

a blank criminal record/abuse history verification form. While he attempted

to supplement his complaint by filing a blank form on June 18, 2018, the court

once again dismissed his complaint without prejudice on June 20, 2018.

Father filed a third and final complaint on June 26, 2018, requesting sole legal

and primary physical custody of Child, which complied with Rule 1915.3-2(a).

      On July 11, 2018, Mother filed a notice of custody relocation, averring

that she intended to leave Monroe County, where both she and Father resided,

and move to Montgomery County to live with her boyfriend, B.V., and his two

children. Mother indicated in her notice that she would like to retain primary

physical custody of Child. Father filed a counter-affidavit opposing Mother’s

relocation on July 31, 2018.

      On August 9, 2018, the trial court adopted the recommendation of the

conciliator and entered an interim order of court. The order awarded shared

legal custody and awarded Mother primary physical custody. The order further

awarded Father partial physical custody each weekend. Specifically, on the

first and third weekend of every month, the order awarded Father custody

from Saturday at 9:00 a.m. until Sunday at 5:30 p.m. On the second and

fourth weekend of every month, the order awarded Father custody from Friday

at 6:00 p.m. until Sunday 6:00 p.m. Of particular relevance to this appeal,

the order included a provision stating that neither party could relocate without

complying with Section 5337 of the child custody statute, 23 Pa.C.S.A. § 5337.

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      Thereafter, on August 30, 2018, Father filed an emergency motion for

custody hearing, averring that Mother intended to relocate to Montgomery

County without the trial court’s permission. The court entered an order that

same day scheduling a hearing and prohibiting Mother from relocating prior

to the hearing. Father filed a petition for contempt on September 5, 2018, in

which he averred that Mother had relocated to Montgomery County during the

previous weekend, in violation of the court’s directive.

      The trial court held a hearing on September 26, 2018, and October 26,

2018. In relevant part, Mother presented testimony attempting to extol the

benefits of her move to Montgomery County. Mother’s explanation of what

motivated her move was somewhat conflicting. When asked why she decided

to leave Monroe County, Mother first stated that she had been residing with

Child’s maternal grandparents, but that the “household . . . was becoming a

bit toxic for my daughter,” because she and Child’s maternal grandmother had

a poor relationship. N.T., 9/26/18, at 18-19. Mother also agreed with her

counsel that she left because she believed she could improve her employment

situation in Montgomery County. Id. at 22. However, she admitted that she

moved to Montgomery County before she secured a job there. Id. at 23-25.

In fact, Mother acknowledged that she did not accept a job in Montgomery

County until the first day of the hearing, on September 26, 2018. Id. at 25.

On cross-examination, she admitted that “the primary reason” she moved was

that B.V. had secured a job in Montgomery County, “[a]mong many other

reasons.” Id. at 106.

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      Mother acknowledged that she moved to Montgomery County without

the trial court’s permission, but attempted to justify her actions by insisting

that she signed the lease for her new home in Montgomery County on August

19, 2018, prior to the entry of the August 30, 2018 order that prohibited her

from moving. Id. at 9-10. Mother further maintained that her move did not

impair Father’s ability to exercise his custodial rights to Child significantly. Id.

at 44, 79. Mother’s testimony focused on the fact that Father is an illegal

immigrant from Ireland and lacks a driver’s license. Id. at 45-47. She stated

that Father receives transportation assistance from his family and that he is

capable of meeting her halfway between Monroe County and Montgomery

County in order to exchange custody of Child. Id. at 49-51.

      Mother also endeavored during her testimony to characterize Father as

violent and abusive. Most notably, Mother described incidents of domestic

violence that occurred on February 9, 2015, and on April 6, 2017. She blamed

Father for both of the incidents and described the injuries she sustained as a

result. Regarding the incident on February 9, 2015, Mother reported that she

suffered “[c]uts on my hands, [and] cuts on my arms.” Id. at 60. Regarding

the incident on April 6, 2017, Mother recounted that she left Father, but that

“my mother forced me back into the house only for him to do it again.” Id.

at 58-59. She reported that she suffered “[c]uts and bruises, bruising from

being thrown and pushed and whatnot. . . . I bled because I got cut with the

glass door.” Id. at 59.




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       However, Mother’s admissions on cross-examination contradicted her

version of events. With respect to the incident on February 9, 2015, Mother

admitted that violence erupted between her and Father after she “broke into

[Father’s] apartment by kicking in the door[.]” Id. at 88. Father’s counsel

presented Mother with the police incident report from the night in question,

which stated that Mother “‘was clearly in the wrong here and none of this

would have happened if she left [Father] alone.’” Id. at 89; see also Plaintiff’s

Exhibit 1 (Incident Report). Similarly, Mother admitted that the incident on

April 6, 2017, occurred after she broke into the parties’ shared apartment “by

smashing a glass door with a hammer[.]” N.T., 9/26/18, at 91. She insisted

that she was trying to retrieve her clothes and other belongings from the

apartment, but was unable to do so because “the keys were removed from

my presence.” Id. Mother conceded that she later lied about the incident

when she went to the hospital, saying that she cut her left arm on the glass

“in self-defense, even though the actual reason . . . was smashing the window

with a hammer[.]” Id. at 92-93. She also acknowledged that any injuries

she suffered were “self-sustained.”3 Id. at 94.
____________________________________________


3 In addition, Mother described a third incident of domestic violence, which
took place on April 27, 2017, and resulted in the parties’ final separation.
According to Mother, she picked up Father from work at 7:00 p.m. and
discovered that he was drunk. N.T., 9/26/18, at 95. When Mother and Father
arrived home, Mother attempted to put Child to bed. Id. However, Father
“proceeded to get mad because the closet door was open in her bedroom.”
Id. Father then threw Mother into a table, Child’s crib, a closet, and a wall.
Id. Father presented a different version of these events, testifying that Child



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       Father also presented testimony, during which he challenged Mother’s

request to relocate by contending that she is hostile to his relationship with

Child. For example, Father testified that he previously enjoyed daily FaceTime

calls with Child, but that Mother ended the calls abruptly on the same weekend

that she moved to Montgomery County. N.T., 10/26/18, at 44-45. Further,

he reported that Mother offered to help him obtain a green card if he gave up

custody of Child. Id. at 64. Father explained that he and Mother planned to

use their marriage as a means for him to obtain a green card. Id. at 63-64.

However, they “stopped the paperwork,” because of their separation. Id. at

64, 91-92. After the separation, Father explained, Mother “said that she would

give me a green card if I signed custody of my daughter over to her, full legal

custody.” Id. at 64.

       Regarding his lack of transportation, Father testified that he works in

New York City designing and building construction projects. Id. at 5, 11-14.

Due to his lack of a driver’s license, Father explained that a coworker drives

him to New York City, or that he uses public transportation. Id. at 58, 81-82.

He also stated that he receives transportation assistance from his aunt, who

lives nearby in Monroe County. Id. at 5, 49. Father explained that he works
____________________________________________


became excited and did not want to go to bed “because Daddy was home.”
N.T., 10/26/18, at 31. Father removed Child from her crib, after which Mother
“started screaming at me saying . . . Put [Child] down. You don’t know what
you’re doing. . . . And she went to kick me, but she kicked my daughter. And
I pushed her into a table.” Id. Following this incident, both parties received
harassment charges. N.T., 9/26/18, at 96. Father pled guilty to his charge,
while Mother’s charge was withdrawn, apparently at Father’s request. Id. at
95; N.T., 10/26/18, at 33-34.

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for his uncle and stated that he would be able to work locally “from the shop”

if he obtained primary physical custody of Child. Id. at 11-12.

      Ultimately, Father contended that it would be in Child’s best interest to

remain in Monroe County because her extended family lives there, because it

would allow her to maintain a social life as she grows older, and because it

would be difficult for him to reach her in Montgomery County in the event of

an emergency. Id. at 11. He explained:

            I think [Child] should be in Monroe County. Her family is
      here, her [maternal] grandfather, her [maternal] grandmother,
      my aunt, my uncle, me. Like I work in New York City, I commute
      to New York City every day and I come back every evening. When
      we split up, I was going to move to Jersey because it was a shorter
      commute, and I didn’t. I chose to stay here and do the commute
      from here because my daughter was here.

                                      ***

              [Child’s] family is all up here. Her [maternal] grandparents,
      her cousins, everybody is up here. Like if [Child] -- so [Child] is
      going to make friends and then friends are going to have parties
      and then parties are going to be on the weekends. And if that’s -
      - if it stays the way it is and I get my daughter on the weekends,
      [Child] is not going to be having parties with her friends. She’s
      going to be with me.

           [Child] is -- everyone is here. Everyone is in Monroe
      County. No one is moving. There is no need for her to move. If
      something happens to [Child], how do I get to Montgomery
      County? You know what I mean?

Id. at 11, 48. Father reported that he plans to build a house for himself and

Child in Monroe County on a lot that his aunt owns, which is adjacent to her

home. Id. at 17.




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       Following the hearing, on February 27, 2019, the trial court entered an

order denying Mother’s request to relocate and Father’s petition for contempt.

The order awarded shared legal custody to both parties and awarded primary

physical custody to Mother, provided that she returned to Monroe County by

September 1, 2019. If Mother returned to Monroe County, the order directed

that Father would exercise partial physical custody on the first, second, and

fourth weekend of every month from Friday at 6:00 p.m. until Sunday at 6:00

p.m., and each Wednesday from 5:00 p.m. until 8:00 p.m. If Mother did not

return to Monroe County, the order directed that Father would receive primary

physical custody and that Mother would exercise partial physical custody on

the first, second, and fourth weekend of every month from Friday at 6:00 p.m.

until Sunday at 6:00 p.m.

       In addition, the trial court issued an opinion setting forth its analysis of

the Section 5328(a) custody best interest factors, enumerated at 23 Pa.C.S.A.

§ 5328(a),4 and the Section 5337(h) custody relocation factors, enumerated

at 23 Pa.C.S.A. § 5337(h). In analyzing the factors, the court found that both

parties are capable of caring for Child. However, the court expressed concern

that Mother relocated to Montgomery County in violation of its August 30,

2018, order and that the relocation would impair Father’s custodial rights. The

court observed that Child’s entire family resides in Monroe County and that

____________________________________________


4The trial court did not conduct a separate analysis of Section 5328(a)(2.1).
The only evidence relevant to this factor was that an unfounded report of child
abuse was filed against Mother in 2017. N.T., 9/26/18, at 57-58, 76-77.

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she has no connection to Montgomery County. The court’s analysis of Section

5337(h)(10) is illustrative of its reasoning:

             We recognize both Mother and Father are concerned with
       what is in the best interests of [Child]. In fact, many of the
       witnesses for the parties have indicated that each are good
       parents. We are nevertheless concerned that Mother violated the
       Court’s Order by unilaterally moving to Montgomery County when
       she was aware that custody proceeding[s] were pending. In
       addition, she stopped daily Face[T]ime between [Child] and
       Father.

             We also consider the support system and family members
       who reside in Monroe County and that there is not such support
       in Montgomery County. Mother has the burden to establish that
       the relocation will best serve [Child’s] interests; and we find that
       she has failed to establish this. In conducting our analysis based
       upon the above factors, we conclude that Mother’s request to
       relocate should be denied. After careful consideration of the
       testimony and evidence in this matter, we believe that it is in
       [Child’s] best interest to have the parties continue to share legal
       and physical custody of [Child].[5] Should Mother decide to remain
       in Montgomery County, we believe that the best interests of
       [Child] will be served by awarding Father primary physical
       custody.

Trial Court Opinion, 2/27/19, at 17.

       Mother timely filed a notice of appeal on March 26, 2019, along with a

concise statement of errors complained of on appeal.6 She raises the following

claims for our review:


____________________________________________


5As noted above, despite its conclusion that Mother and Father should “share”
physical custody of Child, the trial court’s order contains two possible primary
physical custody awards.

6 This Court entered an order per curiam granting Mother’s petition to stay the
trial court’s order pending disposition of this appeal on August 26, 2019.

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     1. Did the Trial Court err in determining that Mother’s move
     significantly impairs Father’s ability to exercise his custodial
     rights?

     2. Did the Trial Court err when considering the best interest of the
     child by not giving the appropriate weight to Father’s immigration
     status and inability to obtain a driver’s license?

     3. Did the Trial Court err in determining that Mother’s move had
     altered the feasibility of preserving the relationship between
     Father and [C]hild?

     4. Did the Trial Court err in determining that Mother failed to meet
     her burden to establish that the move will best serve the minor
     child’s interests?

Mother’s brief at 8-9 (suggested answers omitted).

     Our standard of review in child custody cases is as follows:

     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.

V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations omitted).

     “When a trial court orders a form of custody, the best interest of the

child is paramount.” S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014)

(citation omitted). The factors that trial courts must analyze when awarding

custody are set forth at 23 Pa.C.S.A. § 5328(a):


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     (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.

           (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.



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              (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.A. § 5328(a).

       In addition, the factors that trial courts must analyze when considering

a request to relocate7 are set forth at 23 Pa.C.S.A. § 5337(h):

       (h) Relocation factors.--In determining whether to grant a
       proposed relocation, the court shall consider the following factors,
       giving weighted consideration to those factors which affect the
       safety of the child:

              (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.


____________________________________________


7Our child custody statute defines “relocation” as “[a] change in a residence
of the child which significantly impairs the ability of a nonrelocating party to
exercise custodial rights.” 23 Pa.C.S.A. § 5322(a).


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            (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) 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).

      In her first claim, Mother argues that her move to Montgomery County

was not a “relocation” under our child custody statute because it did not impair

Father’s ability to exercise custodial rights significantly. Mother’s brief at 16-

18. Mother argues that she transports Child to custody exchanges in Monroe

County and that her move has not prevented Father from exercising the same

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custodial rights that he had before. Id. Further, Mother maintains that the

trial court relied improperly on Father’s lack of a driver’s license when reaching

its decision. Id. at 17-18. She stresses that Father commutes to New York

City for work each day, which is seventy-eight miles from his home, but that

he would need to travel only half of the seventy-mile distance to her home in

order to reach her proposed custody exchange location. Id. at 17.

        Our review of the record confirms that Mother’s claim is meritless. At

the time Mother moved to Montgomery County in September 2018, the August

9, 2018 order provided that Mother and Father “shall share transportation

equally as they can agree.”8 Order and Recommendation, 8/9/18, at 7. In

the event the parties were unable to agree, the order directed that it would

“be the responsibility of the party who will be obtaining physical custody, or a

designee, to pick up the child at the residence of the other party.” Id. Thus,

barring an agreement to the contrary, Mother’s move imposed an obligation

on Father to travel from Monroe County to Montgomery County in order to

obtain custody of Child. Given the substantial distance involved, and Father’s

inability to transport himself to exchanges, it is apparent that this obligation

impaired Father’s ability to exercise custodial rights significantly.




____________________________________________


8   The August 30, 2018 order did not address transportation.




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       It appears from the record that Mother was traveling to Monroe County

to facilitate custody exchanges by the time the hearing began on September

26, 2018.9 See, e.g., N.T., 9/26/18, at 169-70 (the trial court instructing,

“I've indicated to the lawyers that that transportation is going to be what

you’ve been doing the last few weeks. And that’s going to require [Mother]

to do the exchanges here in Monroe County.”). However, this fact does not

change our analysis. Mother requested during the hearing that Father share

transportation duties with her equally and that custody exchanges take place

“somewhere in the middle” between Monroe County and Montgomery County.

Id. at 51. Therefore, even accepting for the sake of argument that Mother’s

move had not impaired Father’s ability to exercise custodial rights thus far,

she was requesting that the court impair Father’s ability to exercise custodial

rights going forward by imposing a significant transportation obligation on him

in its forthcoming order. Mother was still requesting a “relocation” as our child

custody statute defines that term.

       Finally, Mother’s contentions regarding Father’s commute to New York

City are equally unavailing. Mother is correct that Father travels to New York

City for work despite lacking a driver’s license. However, Mother’s argument

ignores the methods that Father uses to make this commute possible. Father


____________________________________________


9On October 30, 2018, the trial court entered an interim order confirming this
arrangement. See Order, 10/30/18 (“Pending further Order of Court . . .
[Mother] shall provide all transportation with the exchange of custody
occur[r]ing in Monroe County unless the parties agree otherwise.”).

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explained that a coworker drives him to New York City and that he sometimes

relies on public transportation. N.T., 10/26/18, at 58, 81-82. There is no

indication in the record that Father would have the same opportunities for

transportation to and from Mother’s proposed exchange location.10 Therefore,

Mother’s first claims does not entitle her to relief.

         Mother’s second claim is that the trial court erred by placing insufficient

weight on Father’s immigration status. Mother’s brief at 18-21. She maintains

that Father’s status as an illegal immigrant “provides a poor example” for Child

and “promotes illegal activity and in-action [sic] on life’s problems” in that he

has done nothing for six years to obtain legal status. Id. at 19-20. She notes

that Father’s status prevents him from obtaining financing in order to build a

home as he testified he intended to do during the hearing. Id. at 20. As part

of this claim, Mother also argues that she has been the primary caretaker for

Child since her birth, and challenges the court’s finding that her relocation was

a violation of its August 30, 2018 order. Id. at 20-21. She argues that she

signed the lease for her new residence in Montgomery County on August 19,

2018, “several weeks before the Honorable Trial Court issued its Order.” Id.

at 21.


____________________________________________


10We note that Father testified his aunt, T.H., would be willing to transport
him to Mother’s proposed custody exchange location. N.T., 10/26/18, at 82-
83. Importantly, the fact that Father would be willing or able to overcome the
impairment Mother created by relocating to Montgomery County, in order to
exercise custody of Child, does not make that impairment any less significant.


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      We discern no error of law by the trial court. Child was less than three

years old at the time of the hearing and it is unlikely she understands Father’s

immigration status. Even assuming that Child learns of Father’s status as she

grows older, it would be highly speculative to conclude that knowing Father is

an illegal immigrant will encourage Child to engage in illegal conduct. Notably,

the record belies Mother’s claim that Father has taken no action to address

his immigration status for six years. As explained above, Father testified that

he was in the process of obtaining a green card after marrying Mother in 2017,

but that the parties’ separation halted his efforts. N.T., 10/26/18, at 64, 91-

92. Mother admitted that she had refused to assist Father in obtaining a green

card since their separation, and that she had been using his illegal status as

leverage in their custody dispute. N.T., 9/26/18, at 47-48, 102. Specifically,

she stated that she offered to help Father become a citizen if he “let me have

primary custody[.]” Id. at 102.

      While Mother also argues that the trial court should have placed more

weight on her status as Child’s primary caretaker, and that she did not violate

the August 30, 2018 order because she signed her lease on August 19, 2018,

she waived both of those claims by failing to include them in her statement of

questions involved and concise statement. See In re M.Z.T.M.W., 163 A.3d

462, 466 (Pa. Super. 2017) (“[I]ssues not included in an appellant’s statement

of questions involved and concise statement of errors complained of on appeal

are waived.”). Even if not waived, Mother’s claims would be meritless.


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      First, Mother’s status as Child’s primary caretaker is not entitled to any

particular amount of weight under our law. Prior to the implementation of the

current custody statute in 2011, our courts adhered to the so-called “primary

caretaker doctrine.” The doctrine instructed, “in cases involving an award of

primary physical custody ‘where two natural parents are both fit, and the child

is of tender years, [that] the trial court must give positive consideration to the

parent who has been the primary caretaker.’” M.J.M. v. M.L.G., 63 A.3d 331,

337 (Pa. Super. 2013), appeal denied, 68 A.3d 909 (Pa. 2013) (quoting

Commonwealth ex rel. Jordan v. Jordan, 448 A.2d 1113, 1115 (Pa. Super.

1982)) (emphasis omitted). However, courts are no longer obligated to give

positive consideration to a parent’s status as a primary caretaker. As we have

explained:


             The language of this statute is clear. It explicitly provides
      that all relevant factors shall be considered by the trial court, and
      the only factors that should be given “weighted consideration” are
      factors that “affect the safety of the child[.]” [23 Pa.C.S.A. §
      5328(a).] When the words of a statute are clear and free from all
      ambiguity, the letter of it is not to be disregarded under the
      pretext of pursuing its spirit. If the Pennsylvania Legislature
      intended for extra consideration be given to one parent because
      of his or her role as the primary caretaker, it would have included
      language to that effect. Stated another way, the absence of such
      language indicates that our Legislature has rejected the notion
      that in analyzing both parents, additional consideration should be
      given to one because he or she has been the primary caretaker.

             Furthermore, the consideration the primary caretaker
      doctrine sought to address (which parent spent more time
      providing day-to-day care for a young child) is addressed implicitly
      in the enumerated factors. See, e.g., 23 Pa.C.S.A. §§ 5328(a)(3)
      (“The parental duties performed by each party on behalf of the

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J-S39017-19


      child.”); (a)(4) (“The need for stability and continuity in the child's
      education, family life and community life.”). The considerations
      embraced by the primary caretaker doctrine have been woven into
      the statutory factors, such that they have become part and parcel
      of the mandatory inquiry.

                                         ***

             We hasten to add that this conclusion does not mean that a
      trial court cannot consider a parent’s role as the primary caretaker
      when engaging in the statutorily-guided inquiry. As discussed
      above, a trial court will necessarily consider a parent’s status as a
      primary caretaker implicitly as it considers the section 5328(a)
      factors, and to the extent the trial court finds it necessary to
      explicitly consider one parent’s role as the primary caretaker, it is
      free to do so under subsection (a)(16). It is within the trial court’s
      purview as the finder of fact to determine which factors are most
      salient and critical in each particular case. Our decision here does
      not change that.

Id. at 338-39 (some internal quotation marks and citations omitted; footnote

omitted). No relief is due in the instant matter, as it is clear that the trial

court considered Mother’s role as Child’s primary caretaker when conducting

its analysis of the Section 5328(a) and 5337(h) factors, in compliance with

M.J.M. See, e.g., Trial Court Opinion, 2/27/19, at 5 (“Although Mother has

been the primary caregiver for [Child], both of the parties are involved with

[Child’s] education and activities.”).

      Second, Mother’s decision to sign a lease for a residence in Montgomery

County prematurely, before securing the trial court’s permission to relocate,

does not excuse her violation of the August 30, 2018 order. The suggestion

that Mother did not realize she could not relocate until after she had already

done so in September 2018 strains credulity, given that she filed a notice of


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J-S39017-19


custody relocation in July 2018, and given that Father filed a counter-affidavit

opposing her relocation later that same month. Moreover, Mother’s argument

ignores the fact that the court entered a prior order on August 9, 2018, well

before Mother signed her lease on August 19, 2018, which also prohibited her

relocation. The order included the following provision:


       8. NOTICE: CHANGE OF RESIDENCE OR RELOCATION

              Before a party may relocate the child or change the
       residence of the child in a manner which significantly impairs the
       ability of other individuals with custody rights to the child to
       exercise those rights, the party must comply with the
       requirements and obligations of Pennsylvania’s Custody Law set
       forth in 23 Pa. C.S.A. [§] 5337.[11]

Order and Recommendation, 8/9/18, at 9 (underlining omitted). Accordingly,

even if Mother signed her lease prior to the trial court’s entry of the August

30, 2018 order, it was within the court’s discretion to weigh her improper

relocation against her.

       Mother argues in her third claim that the trial court erred by finding that

her relocation would alter the feasibility of preserving the relationship between

____________________________________________


11Section 5337(b) prohibited Mother from relocating without Father’s consent
or the trial court’s approval:

       (b) General rule.--No relocation shall occur unless:

              (1) every individual who has custody rights to the
              child consents to the proposed relocation; or

              (2) the court approves the proposed relocation.

23 Pa.C.S.A. § 5337(b).


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J-S39017-19


Father and Child. Mother’s brief at 21-23. Mother contends that Father would

maintain the same amount of custodial time and the same telephone access

to Child that he had before the relocation. Id. at 22. She concedes that she

discontinued allowing Father to use FaceTime with Child, but insists that her

decision was justifiable because Father used FaceTime “to question . . . Child

as to Mother’s whereabouts and generally pry into Mother’s life.” Id. Mother

characterizes Father as disinterested and uninvolved in Child’s life, and she

repeats her previous argument that he is able to commute seventy-eight miles

to work each day. Id. at 22-23.

       The record supports the trial court’s determination that allowing Mother

to relocate to Montgomery County would impair Father’s ability to exercise his

custodial rights significantly. It was within the court’s discretion, however, to

reject Mother’s explanation.        V.B., 55 A.3d at 1197.   Mother’s third claim

fails.12

       Finally, Mother’s fourth claim is that the trial court erred by finding that

she failed to prove her relocation would be in Child’s best interest. Mother’s



____________________________________________


12 It is important to note that credibility determinations are for the trial court
and that the trial court did not find Mother credible. As detailed earlier, Mother
spent a significant portion of her direct examination accusing Father of
domestic violence and declining to accept any blame herself, only to admit on
cross-examination that she instigated two of the incidents by kicking down the
door to Father’s apartment and by smashing through a glass door with a
hammer. N.T., 9/26/18, at 88, 91. Mother even admitted that she lied about
the source of her injuries to medical staff at the hospital, saying that Father
injured her, when in reality her injuries were self-sustained. Id. at 92-94.

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J-S39017-19


brief at 23-26. Mother stresses that she secured employment in Montgomery

County with a substantial pay increase. Id. at 23-25. She also contends that

leaving Monroe County will allow her to escape “the emotionally draining and

toxic environment of Mother’s former home . . . . where she was constantly

put down and where her actions were continually questioned by her own

mother.” Id. at 24-25. She repeats her prior argument that she signed the

lease for her new residence in Montgomery County before the Court issued its

August 30, 2018 order forbidding her from leaving Monroe County. Id. at 25.

      We conclude once again that Mother is not entitled to relief. As we have

stated throughout this memorandum, it is within the discretion of the trial

court to make credibility determinations and to weigh the evidence before it.

V.B., 55 A.3d at 1197. In this case, the record confirms that Mother’s new

job appears to have played little if any role in motivating her to leave Monroe

County. When asked why she decided to relocate, Mother did not initially

mention her new job at all. N.T., 9/26/18, at 18-19. Mother testified that she

did not obtain her new job until well after the relocation. Id. at 23-25. In

fact, she did not even accept the job until the first day of the hearing, on

September 26, 2018. Id. at 25. Concerning Mother’s claim that her relocation

will allow her to escape the allegedly “toxic” environment of living with her

parents, it is not clear why Mother could not simply find a new place to live in

Monroe County. Mother did not testify that she made any effort to find a new

job or to obtain her own residence anywhere local.


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J-S39017-19


      Ultimately, it appears clear from the record that the primary reason for

Mother’s relocation to Montgomery County was that she wanted to live with

B.V., who had obtained a job in that area. At the time of the hearing, Mother

and B.V. had been in a relationship for only six months. Id. at 136. Therefore,

it was far from certain that their relationship would last or that allowing Mother

to relocate to Montgomery County in order to facilitate that relationship would

be in Child’s best interests. It was reasonable for the trial court to conclude

that whatever benefit Child might receive from moving to Montgomery County

would pale in comparison to the costs, namely the strain that such a relocation

would place on Child’s relationship with Father and with her extended family,

all of whom reside in Monroe County.

      Based on the foregoing, we conclude that the trial court did not abuse

its discretion by denying Mother’s request to relocate to Montgomery County,

awarding both parties shared legal custody, awarding Mother primary physical

custody contingent upon her return to Monroe County, and denying Father’s

petition for contempt. Thus, we affirm the trial court’s February 27, 2019

order in all respects subject to the following. Mother shall have 60 days from

the filed date of this memorandum to return to Monroe County in order to

retain primary custody of Child. Additionally, the stay entered by this Court

on August 26, 2019, is hereby vacated. The trial court and parties shall

proceed consistent with the foregoing memorandum.

      Order affirmed.


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J-S39017-19


     President Judge Emeritus Gantman joins the memorandum.

     President Judge Emeritus Stevens files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/1/19




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