J-S46006-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

S.A.R.                                         IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

D.C.R.

                        Appellant                   No. 415 MDA 2017


              Appeal from the Order Entered February 9, 2017
              In the Court of Common Pleas of Franklin County
                      Civil Division at No(s): 2011-2240


BEFORE: BOWES, J., OLSON, J., AND STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.:                     FILED SEPTEMBER 15, 2017

     D.C.R. (“Father”) appeals from the February 9, 2017 custody order

that granted the motion filed by S.A.R. (“Mother”) to relocate with their

daughter, Z.A.R., from Pennsylvania to Aurora, Colorado. We affirm.

     Z.A.R. was born during September 2010 of Mother and Father’s

marriage.   The family resided in Waynesboro, Pennsylvania, in a home

owned by the paternal grandmother. The parties separated during late 2010

or early 2011, but Mother and Z.A.R. remained in the marital home. Mother

exercised primary physical custody pursuant to a June 2, 2011 custody

order. Father was awarded three hours of supervised custody per week.

     Father has not contacted his daughter since August 2011.         During

summer 2011, Father absconded from authorities in relation to theft and


* Former Justice specially assigned to the Superior Court.
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forgery charges involving Mother’s grandmother.           He was apprehended in

Texas during October 2012, and he remained incarcerated until April 2016.

       Mother and Z.A.R. continued to reside in Waynesboro until September

19, 2016, when she and Z.A.R. relocated to Aurora, Colorado, without

providing notice pursuant to 23 Pa.C.S. § 5377.1                 Mother attended

elementary and secondary school in Aurora, Colorado and lived there for

sixteen years between 1983 and 1999. She and her fiancé, M.S., are former

high school friends who reacquainted over the internet. Mother and Z.A.R.

reside in a five-bedroom home with M.S., and his four children, whose ages

range between six and sixteen.           Then-six-year-old Z.A.R. explained to the

trial court that M.S. was “kind of like [her] dad” and she refers to his

children as her brothers and sisters.          N.T., 1/30/17, at 223-224.   Z.A.R.

shares a bedroom with M.S.’s daughter, and as of the date of the evidentiary

hearing, she was thriving as a first grader at Jewell Elementary School,

which she attends with with M.S.’s youngest child, D.S. As it relates to her

preferences, Z.A.R. testified that she is “kind of happy [in] Colorado and [in

Pennsylvania].” Id. at 231.

       On November 14, 2016, Father filed a petition for civil contempt,

which he amended two weeks later. Mother responded to Father’s petitions,
____________________________________________


1
  Unlike most contemporary custody orders, the June 2011 custody order did
not include the rote directive requiring the custodial parent to provide notice
of a proposed relocation pursuant to § 5377.



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and, on January 6, 2017, she filed a formal petition for relocation. During

the ensuing evidentiary hearing, Mother presented evidence regarding the

benefits of relocation. On February 9, 2017, the trial court granted Mother’s

petition to relocate from Waynesboro to Aurora, Colorado. As recompense

for Mother’s failure to comply with § 5337(h), the court awarded Father

counsel fees and expenses pursuant to § 5337(j)(4).

      This timely appeal followed. Father filed a concise statement of errors

complained of appeal pursuant to Pa.R.A.P. 1925(b). He raised four issues,

which he condensed on appeal into the following two questions:

      I.    Did the trial court err in granting Mother’s proposed
      relocation to Colorado when the evidence and the trial court’s
      own factual conclusion overwhelmingly support denying the
      relocation?

      II.   Did the trial court err by considering Mother’s improper
      and premature move to Colorado prior to hearing as the basis to
      grant the relocation because denying the relocation would cause
      another change in residence for the child, thereby allowing
      Mother to benefit from her wrongdoing?

Father’s brief at 6.

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

S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa.Super. 2014). We defer to the trial

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

determinations. Id. This Court will accept the trial court’s conclusion unless

it is tantamount to legal error or unreasonable in light of the factual findings.

Id.



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     In relation to relocation, the Child Custody Law provides:

     (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.

       (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.




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          (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).

        In granting Mother’s petition to relocate Z.A.R. from Pennsylvania, to

Aurora, Colorado, the trial court considered the ten relocation factors

enumerated in § 5337(h) and the best interest factors outlined in §

5328(a).2 See N.T., 2/9/17, at 3-12, 14-20. Significantly, the court viewed

____________________________________________


2
    § 5328. Factors to consider when awarding custody.

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

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

          (2) The present and past abuse committed by a party or
          member of the party’s household, whether there is a
          continued risk of harm to the child or an abused party and
          which party can better provide adequate physical safeguards
          and supervision of the child.

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

(Footnote Continued Next Page)


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                       _______________________
(Footnote Continued)

         (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.

         (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.

(Footnote Continued Next Page)


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the statutory factors through the combined lenses of Mother’s decision to

return to Colorado despite only modest improvements to her quality of life

and Father’s demonstrated failure to maintain a relationship with Z.A.R. The

trial court found that §§ 5337(h)(1) and (h)(3), concerning a child’s

relationship with the non-relocating party and the feasibility of preserving

that relationship, favored relocation and that §§ (h)(6) and (h)(7), relating

to the prospective improvements to the quality of life of Mother and Z.A.R.,

militated in favor of Father.        The remaining relocation factors were either

neutral or inapplicable.

      The trial court also considered whether Mother’s failure to provide the

required notice of relocation warranted measures pursuant to § 5337(j)(1)-

(5), which permit the court to consider the misstep as, inter alia, a factor

regarding relocation, a basis to modify primary custody or return the child to

the non-relocating parent, or grounds to impose expenses and attorney fees.

Ultimately, the trial court determined that Mother’s behavior did not warrant

a denial of the petition to relocate or modification of primary custody.

Instead, as noted supra, the court awarded Father counsel fees and

expenses pursuant to § 5337(j)(4).

                       _______________________
(Footnote Continued)

         (16) Any other relevant factor.

23 Pa.C.S. § 5328(a).




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       Father’s first issue raises two distinct complaints. First, he assails the

trial court’s factual findings. Next, he challenges the trial court’s decision to

grant the petition for relocation despite its finding that several of the

relocation factors weighed against it.          We address the components

separately.

       In challenging the trial court’s role as fact-finder, Father contends that

it discounted Mother’s attempts to thwart his relationship with Z.A.R. and

ignored his evidence concerning his post-incarceration progress toward

“recovery and establishing a stable, healthy environment” for his daughter.

Father’s brief at 13.    In addition, he contends that the trial court did not

adequately consider that Z.A.R. lived in Waynesboro for the majority of her

life   and   developed   “extensive,   important   and   positive   contacts   and

relationships” in that location, including a close relationship with paternal

grandparents.     Id. at 13-14.        Comparing those relationships with his

perspective of Z.A.R.’s personal interactions in Colorado, Father opines,

“granting this relocation allows Mother . . . to cut down [his daughter’s]

family tree.” Id. at 14. Notwithstanding the hyperbolic imagery, Father’s

assertions are not persuasive.

       It is beyond peradventure that a party cannot dictate the weight that

the trial court attributes to the evidence or its consideration of any single

factor. A.V. v. S.T., 87 A.3d 818, 820 (Pa.Super. 2014) (citation omitted)

(“Rather, the paramount concern of the trial court is the best interest of the

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child.”).   It is within the fact-finder’s purview to decide which of the

enumerated factors are the most salient to the facts of a particular case.

M.J.M. v. M.L.J., 63 A.3d 331, 339 (Pa.Super. 2013).              Furthermore,

consistent with our standard of review, we will not interfere with the trial

court’s consideration of a child’s best interest absent an abuse of discretion.

Id. Stated plainly, “The test is whether the evidence of record supports the

trial court’s conclusions.” Id. (quoting Ketterer v. Seifert, 902 A.2d 533,

539 (Pa.Super. 2006)). Thus, insofar as Father’s argument challenges the

trial court’s determinations regarding the weight and saliency of the various

statutory factors, no relief is due. The trial court was the ultimate arbiter of

fact, and we will not disturb its findings that are supported by the certified

record.

      The second aspect of Father’s first issue overlaps with the second

question he presented on appeal.        Accordingly, we address those two

arguments together.    The crux of that collective assertion is that the trial

court altered the statutory burden of proof and based its decision to permit

Mother’s relocation to Colorado on the improper grounds that denying

relocation at this juncture would require extracting Z.A.R. from her now-

comfortable environment in Colorado and returning her to Pennsylvania.

Again, Father complains that the trial court’s ultimate decision to grant

Mother’s petition for reargument runs contrary to its finding that several of

the relocation factors weighed against it. He highlights that the trial court

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“took a dim view of [M]other’s choices” and motivations for the relocation,

which the court characterized as immature and “somewhat selfish.” Id. at

15, 16 (quoting N.T. 2/9/17, at 11, 16). Similarly, Father stresses that the

trial court determined that the financial benefit of the proposed relocation

was practically nonexistent and that the relocation was not certain to inure

to Z.A.R.’s emotional benefit or the physical, educational, or financial benefit

of Mother or Z.A.R.

      Against       this   framework   of   complaints   concerning   the   court’s

assessment of the relevant factors, Father asserts that the trial court

violated 23 Pa.C.S. § 5337(l) in considering evidence of Z.A.R.’s acclimation

to Colorado prior to the date Mother filed the petition to relocate. This latter

position has several facets, including the reiteration of Father’s prior

contention that the trial court shifted the burden of proof and improperly

based its decision to permit relocation upon the premise that denying

Mother’s motion would require Z.A.R. to endure another move. In addition,

he asserts that the court failed to consider the facts as they stood at the

time of relocation. In sum, Father surmises that, by considering evidence of

Z.A.R.’s assimilation to her household and school in Colorado, it required

Father to disprove that relocation was improper.         For the following reasons,

no relief is due.

      Notwithstanding Father’s protestations to the contrary, § 5337(l) does

not prohibit custody courts from considering relevant evidence of a child’s

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best interests or require the court to view evidence with distrust. In reality,

§ 5337(l) merely states, “If a party relocates with the child prior to a full

expedited hearing, the court shall not confer any presumption in favor of the

relocation.”   23 Pa.C.S. § 5337(l).   Presently, the trial court conferred no

such presumption.      In reality, the court considered relevant evidence

concerning Z.A.R.’s life with Mother in Aurora, Colorado.

      In B.K.M. v. J.A.M., 50 A.3d 168 (Pa.Super. 2012), we addressed

whether a trial court erred in disregarding a mother’s evidence regarding her

children’s activities in Sweden because the mother relocated with the

children prior to the evidentiary hearing. In reversing the trial court, we first

found that the unambiguous language of the statute simply prohibits a trial

court from adopting a prima facie inference in favor of the relocating party

and protects against requiring “the party opposing relocation to bear the

burden of rebutting such an inference.”        Id. at 175.     Additionally, we

reasoned,

      The trial court, in making its ultimate determination, stated that
      it was bound to disregard this evidence, in order to avoid
      conferring a presumption in favor of relocation.               This
      interpretation of section 5337(l), however, evinces a
      misunderstanding of the meaning of the word “presumption,”
      and acts to convert a statutory provision on the allocation of
      burdens into what amounts to an extreme sanction on
      relocations that occur prior to a full expedited hearing.
      Moreover, by disregarding any evidence arising during the
      relocation, the trial court, in essence, conferred a presumption
      against relocation.     The plain meaning of section 5337(l)
      supports neither the sanction enforced by the trial court by its
      refusal to consider a substantial portion of the record, nor the de

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      facto presumption against relocation. We conclude that the trial
      court's interpretation of section 5337(l) is, thus, an error of law.

             Additionally, our review reveals that the trial court's
      interpretation of section 5337(l) resulted in a failure to properly
      consider all factors of section 5328(a) and 5337(h). The court
      omitted consideration of the parental duties performed in
      Sweden, of any need for stability and continuity established for
      the Children during their time in Sweden, and of the overall best
      interests of the Children, inasmuch as those interests might
      involve maintaining the status quo established by their life in
      Sweden over the past two years, which for the most part
      occurred with Father's agreement. As a result, the trial court
      failed to apply the necessary factors provided by section 5328(a)
      and 5337(h). See E.D. [v. M.P., 33 A.3d 73, 79-80 (Pa.Super.
      2011)].

Id. Accordingly, we vacated the custody order and remanded the case so

that the trial court could consider evidence of the children’s lives in Sweden,

including their need for stability and continuity there.

      Thus, contrary to Father’s interpretation of § 5337(l), the trial court

properly considered relevant testimony regarding Z.A.R.’s family, education,

and activities in Colorado prior to the date Mother filed for relocation, and

the court’s consideration of that evidence did not confer a presumption in

Mother’s favor or relieve her of the burden of proof under § 5337. Thus, no

relief is due.

      Moreover, the certified record belies Father’s contention that the trial

court’s primary reason for granting Mother’s petition for relocation was that

the disruption associated with requiring Z.A.R. to return to Pennsylvania

would be detrimental to the child’s best interest. Preliminarily, we observe



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that Father’s position completely ignores the trial court’s finding that Father

did not have any role in Z.A.R.’s life and that he has not contacted her since

2011. As noted, supra, the trial court determined that the relocation factors

relating to the quality and duration of a child's relationship with the non-

relocating party, and the feasibility of preserving the relationship between

the non-relocating party and the child, weighed heavily in Mother’s favor.

      Specifically, as to the consequence of Father’s apathy, the trial court

reasoned,

      The trial court did not find Father's explanations as to why he did
      not exercise custody to be very meaningful or credible. It was
      apparent to the court that Father's efforts to secure custody
      seemed as much motivated by the actions of his mother, the
      paternal grandmother, as it was Father's own interests. Overall
      the court cannot see how Mother’s decision to remove the child
      with her to Colorado would impact Father’s custodial rights given
      his relative lack of interest in pursuing his custody rights prior to
      Mother’s move to Colorado.

            ....

      It is not as if Father could regularly exercise custody of the child
      on a daily basis if Mother and child returned to Mother's prior
      residence. Sadly, when his daughter was only a few hours drive
      away, Father didn't take advantage of the opportunity to
      exercise custody with any regularity.

Trial Court Opinion, 3/15/17, at 3-4 (non-paginated).

      Thus, faced with the Hobson’s choice of choosing between Mother’s

self-centeredness and Father’s demonstrated lack of interest, the trial court

weighed the relevant best-interest factors outlined in §§ 5337(h) and

5328(a), and determined that Z.A.R.’s best interest demanded emphasizing

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Mother’s role in raising their daughter in Father’s absence. In sum, the court

concluded, Father’s “lack of meaningful participation as a parent greatly

undermine[d] his claims that the child’s relocation interfere[d] with his

custodial rights.” Id. at 6.

      Based on the foregoing, we affirm the custody order that granted

Mother’s belated request to relocate with Z.A.R. to Aurora, Colorado and

crafted a new custody order that awarded Father periods of physical custody

at paternal grandmother’s home in Pennsylvania during summer vacation,

and select holidays throughout the year.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/15/2017




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