J-S75043-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    J.H.                                            :   IN THE SUPERIOR COURT OF
                                                    :        PENNSYLVANIA
                                                    :
                  v.                                :
                                                    :
                                                    :
    J.Y.W.                                          :
                                                    :
                         Appellant                  :   No. 1362 WDA 2019

                 Appeal from the Order Entered August 7, 2019
       In the Court of Common Pleas of Allegheny County Family Court at
                           No(s): FD-09-004150-004


BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                              FILED FEBRUARY 4, 2020

           J.Y.W. (Mother) appeals the order of the Allegheny County Court of

Common Pleas Family Court (trial court) entered on August 7, 2019, granting

J.H. (Father) primary physical custody of J.H. (Child) and permitting Father to

relocate with Child to Lawrence County. We affirm.

                                               I.

           The relevant facts and procedural history of this case are gleaned from

the summary in the trial court’s 1925(a) opinion:

           Father and Mother are the parents of . . . [Child], who is 11 years
           old, having been born in February of 2008. Father and Mother
           were never married to each other. As the docket reflects, a little
           over a year after [Child] was born, the parties separated, and
           support and custody became the subject of litigation.           On
           November 2, 2009, an Order of Court gave Mother and Father
           shared legal and physical custody, with Father having [Child]
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S75043-19


     every weekend from Friday to Sunday.        This arrangement
     essentially remained in effect until June 20, 2019, when by
     consent, Father's custody was expanded to every weekend from
     Thursday to Sunday.

     [Child] has resided primarily with Mother, who is now married to
     B.J.W. (“Mother’s Husband”). As of the hearing, Mother’s three-
     bedroom household consisted of the following eight people:
     Mother, Mother’s Husband, [Child] and four other children of ages
     four, five, eight, nine and ten (one by Mother from another
     paramour and four by her current husband).

     Father subsequently married D.H. (“Father’s Wife”), and, at the
     time of the hearing, the two lived together in the Brookline area
     of Pittsburgh. However, also at the time of the hearing, Father
     and Father’s Wife had purchased a home on a large and more rural
     tract of land in Ellwood City in Lawrence County, which is served
     by the Laurel School District. The distance between the Mother’s
     home and Father’s new house is one hour and fourteen minutes
     by car. The previous driving time was anywhere from a half-hour
     to an hour, depending on traffic, and Father offered to provide all
     transportation from the Ellwood City home to Mother’s home
     although he testified that he hopes Mother will share some of the
     effort.

     In conjunction with this move and on the heels of conflict with
     Mother, Father filed for primary custody on January 4, 2019, and
     gave notice of his intent to relocate on January 14, 2019. Mother
     and Father have a history of conflict, with intermittent
     cooperation, but in the months preceding the filing, there was
     some escalation in their difficulties.

     Father and Father’s Wife called to Mother’s house for Christmas to
     talk to [Child]. Testimony this Court found credible indicated that
     Mother got on the phone and said, “We are not having an f’n
     Christmas here because you don't want to pay for f’n classes or
     f’n child support.” [Child] was privy to some or all of this because,
     at one point, Mother put [Child] on the phone and said, “Here is
     your f’n father,” at which point [Child] was crying.

     Afterward, Father’s own mother made some negative comments
     on Facebook about the Christmas incident although Father and
     Father’s Wife did not participate. Mother was disturbed by the use
     of Facebook to discuss family matters and then made the

                                     -2-
J-S75043-19


     unfortunate decision to read the negative posts to [Child], which
     predictably upset him.

     The difficulties continued into the New Year. During a New Year’s
     dinner with Father and Father’s Wife, [Child] appeared with
     bruises down his left arm.        He explained that Mother had
     instructed him to pour water onto the head of one of his
     stepsiblings while the girl was asleep, and that she had hit him
     with a plastic toy in response. [Child] also told the couple about
     an incident with another child who visited Mother’s home. That
     boy had come over and repeatedly called [Child] “gay.” Mother
     successfully egged [Child] on to engage in a physical altercation
     with the boy.

     Mother herself has engaged in similar verbal behavior and aims it
     at [Child]. [Child] enjoys activities like singing and dancing. On
     one occasion, [Child] asked to have his hair cut in a particular
     fashion, and Mother told him no because he would look like a
     “faggot.” Mother also talked in front of [Child] about how [Child]
     would not be a good candidate for enrollment in football because
     he is “too much of a pussy.”

     Father’s Wife is a nurse practitioner. When Father described some
     of this conduct in a Court filing, Mother told Father that she
     intended to call the Board of Nursing to seek suspension of his
     wife’s nursing license. It seems that Mother’s reasoning was that
     Father’s Wife, as a nurse practitioner, is a mandatory child abuse
     reporter, and therefore Father’s Wife should have her license
     suspended for not reporting Mother’s abusive conduct. Thus, it
     seems that Mother either regards her own conduct as abusive and
     faults Father’s Wife for failing to report it, or Mother simply
     intended to harangue Father and Father’s Wife for disapproving of
     her calling [Child] a “faggot” and a “pussy.”

     On one weekend in January, Father and Father’s Wife drove to
     Mother’s house to pick up [Child]. They waited for about 20
     minutes, knocking on the door and honking but to no avail.
     Ultimately, Mother answered them electronically, and [Child]
     came out crying and said he did not want to go although initially
     he would not say why. Eventually, it came out that [Child] was
     upset about the Facebook incident from Father’s side of the family
     and that Mother had gratuitously shared the content with the boy;
     Father clarified that he and his wife had stayed out of the
     Facebook postings, and [Child] then said he would come along.

                                   -3-
J-S75043-19


     Mother remained focused on the Facebook incident. The next day,
     Mother called to say there was a snowstorm although Father’s
     Wife testified that the roads were clear by Father’s home. Mother
     got on the phone with [Child] and began pressing [Child] on the
     question of whom he wanted to live with and brought up the
     Facebook episode.

     The following weekend went no better. When Father and Father’s
     Wife went to get [Child], Mother was angry about the Court
     proceedings that Father had initiated. She came to the car, with
     [Child] present at various times, and shouted that she “will f’n die
     before” letting Father’s Wife raise her child because Father’s Wife
     is “an f’n B word.” Father’s Wife testified that these types of
     incidents during phone calls with Mother also were not uncommon
     and that Father and Father’s Wife spend considerable time calming
     [Child] during Father’s custody periods.

     Father described the atmosphere at Mother’s home as chaotic and
     loud, testifying that, when he calls, there is always background
     noise that includes screaming and cursing and fighting. Father’s
     observation is that [Child] appears anxious and overstimulated in
     his neighborhood and household with Mother.

     Father and his Wife testified that Father wants [Child] to have an
     opportunity to live in Father’s new home and area where [Child]
     will experience a more relaxed and peaceful environment. Father
     and his Wife hope to have space on their lands for family events,
     and they were in the process of furnishing a room for [Child].
     They planned on building him a tree house that [Child] had
     requested and had begun purchasing play equipment like a soccer
     net. Father’s Wife pointed out that they will live near Moraine
     State Park, which also has a lake, for recreation and that her own
     extended family is nearby, and that [Child] has a relationship with
     them. Father has discussed the move extensively with [Child].
     Moreover, [Child] had visited the new residence.

     Father’s Wife will be closer to her work, and Father, who works as
     a carpenter, will be approximately the same distance from his job.

     Father is not without his faults. Father has had weekend custody
     time for many years and has performed most parental duties
     although he has not been as involved in [Child’s] medical
     appointments and school meetings as he could have been. This
     is significant because [Child] does have a medical condition which

                                    -4-
J-S75043-19


     causes his heart to flutter and change pace rapidly and must
     attend cardiology appointments. However, Father also testified
     that he is sometimes frustrated by Mother in the way Mother goes
     about scheduling appointments or school meetings on short
     notice, making it difficult for him to change his schedule. Mother
     emphasized an incident in which Father forgot to feed [Child] and
     called ahead to ask her to feed him when he got home. Father
     also did tell Mother that part of the reason for his requested
     custody change was her filing to resume support that they had
     temporarily suspended although this Court does not credit the
     idea that this is Father’s primary motivation for seeking to move
     [Child] to his new home as Father was believable in testifying
     about the ways in which the change would benefit [Child].

     Likewise, there have been times when Mother was more
     cooperative with Father and Father’s Wife than set forth above.
     Father himself conceded that Mother loves [Child] and tries to
     involve [Child] in activities that he likes.

     Father had personal troubles that would concern the Court except
     that the Court is persuaded that these difficulties are remote and
     that Father has overcome them. He stipulated that he was
     charged and sentenced to probation in 2011 for possession of a
     firearm while charges relating to possession of drug paraphernalia
     were dropped. Mother testified about Father’s past issues such as
     her allegations that he drank, but she was unable to point to
     anything within recent years, with most of her testimony directed
     to the time when [Child] was an infant. Mother acknowledged
     that Father became more active as a parent as well after marrying
     Father’s Wife. This Court finds that Father has demonstrated his
     fitness as a parent and will be capable of increasing his parental
     involvement in such matters as medical and school meetings when
     he is living with [Child]. This Court credited testimony that Father
     could have been more proactive in [Child’s] medical and school
     progress but also credited the testimony that Mother, to a
     meaningful extent, has interfered with and foiled Father’s
     participation.

     There was great disagreement between Mother and Father about
     the better school district for [Child].    Mother defended the
     McKeesport school in which [Child] was enrolled at the time of the
     hearing. However, [Child] has not been in the McKeesport School
     system during his entire time as a student. In fact, for a time, he
     was enrolled in St. Angela Merici, where he started preschool.

                                    -5-
J-S75043-19


     Then, in second or third grade, Mother put him into the
     McKeesport School of Twin Rivers, partly for financial reasons.

     In the McKeesport Twin Rivers public school, [Child] got bullied,
     and his grades began to suffer. Mother then pulled him out of
     Twin Rivers and enrolled [Child] in a cyber school. She then re-
     enrolled him at McKeesport. At the time of the hearing, [Child]
     was getting ready to enter sixth grade; hence, each of these
     changes occurred between preschool and fifth grade.

     [Child] is in gifted programs, and Father explained that they have
     gifted programs as well at Laurel School District, but that he
     believed that the teacher-to-student ratio was better and would
     help [Child] and that [Child] should have the chance to participate
     in a school program where he can be less distracted by social
     difficulties. Father testified that news reports also list [Child’s]
     home area with Mother as one of the most dangerous areas in the
     country. During that testimony, Mother and her counsel were
     silent, raising no objections. [Child] had told Father and Father’s
     Wife about an incident in which he was riding his bicycle farther
     from Mother’s home when a car pulled out right in front of him,
     causing him to swerve and fall over.

     Father’s Wife stated that her nephew goes to the Laurel School
     District and finds it relaxed and fun. She believed that the area
     and school compared favorably to McKeesport in terms of
     peacefulness and educational quality. Father researched the
     Laurel School and described how it had recently won an award and
     that it was highly rated in science, [Child’s] favorite subject, and
     that it had numerous extracurricular activities to offer. There was
     testimony that [Child] will have friends regardless of which home
     he lives in.

     [Child] testified that he loves both parents, and he expressed a
     desire to remain in his current home and school and to see his
     Father every other weekend. However, when [Child] was asked
     if his Mother is mean or calls him names, he replied: “Not that
     much.” Overall, the Court found [Child] to be smart and pleasant
     but emotionally immature for his age; therefore, this Court could
     not give his preferences significant weight. Mother stressed
     [Child’s] preferences in Court, but in recent writings to Father on
     the issue of where [Child] should live, Mother herself did write that
     [Child] is “an 11 year old boy. He can not make those decisions.”


                                     -6-
J-S75043-19


1925(a) Opinion, 10/7/2019, at 1-8 (citations omitted).

      Following the custody trial held on August 7, 2019, the trial court

entered a final order granting Father primary physical custody and permitting

relocation, with Mother having shared legal custody on all matters except

school choice. The trial court ordered that during the school year, Mother will

receive custody of Child every second weekend, and during the summer,

custody of Child will alternate each weekend.

      Mother timely appealed the final custody order, contending that the trial

court abused its discretion in several respects:

      1. Whether the trial court erred and abused its discretion by
      awarding Father primary physical custody of [Child] by
      misapplying and/or ignoring the factors outlined in 23 Pa.C.S. §
      5328;

      2. Whether the trial court erred and abused its discretion by
      allowing Father to relocate with [Child] and/or whether it applied
      an incorrect standard in deciding that the relocation would provide
      a benefit to [Child];

      3. Whether the trial court erred and abused its discretion in
      primarily basing its decision to allow Father to relocate with [Child]
      upon alleged danger in the McKeesport community where Mother
      resides;

      4. Whether the trial court erred and abused its discretion in finding
      that Father’s proposed move would not significantly impair
      Mother’s ability to exercise her custodial rights;

      5. Whether the trial court erred and abused its discretion by
      substantially reducing Mother’s primary physical custody of
      [Child] to partial physical custody every other weekend, which is
      half that of Father’s prior partial custody every single weekend;
      and




                                      -7-
J-S75043-19


       6. Whether the trial court erred and abused its discretion in failing
       to give weighted consideration to those factors which affect the
       safety of [Child], including but not limited to Father’s criminal
       history, drug history and abuse history.

Id. at 8-9.

       As to all grounds Mother asserts on appeal, an abuse of discretion

standard applies:

       When we review a custody order, we accept the factual findings
       of the trial court that are supported by competent evidence of
       record and we defer to the trial court’s weighing of the evidence.
       D.K. v. S.P.K., 102 A.3d 467, 478 (Pa. Super. 2014). However,
       we are not bound by the trial court’s decision where it is
       “unreasonable in light of the sustainable findings of the trial
       court,” and may reject the trial court’s conclusions that involve an
       error of law or an abuse of discretion. Id. (quoting J.R.M. v.
       J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011)). Our scope of review
       is plenary. Id.

S.S. v. K.F., 189 A.3d 1093, 1098 (Pa. Super. 2018).

       For the reasons below, we find that none of Mother’s appellate claims

have merit.

                                               II.

                                               A.

       Mother’s first two grounds may be reduced to a single issue – whether

the trial court misapplied the law that governs child custody and relocation.

The factors for deciding custody are set forth in 23 Pa.C.S. § 5328(a).1 The


____________________________________________


1 The statute provides that the trial court must consider the following custody
factors, giving weighted consideration to factors that affect a child’s safety:



                                           -8-
J-S75043-19


____________________________________________


       (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.
       (12) Each party’s availability to care for the child or ability to make
       appropriate child-care arrangements.
       (13) The level of conflict between the parties and the willingness
       and ability of the parties to cooperate with one another. A party’s
       effort to protect a child from abuse by another party is not
       evidence of unwillingness or inability to cooperate with that party.
       (14) The history of drug or alcohol abuse of a party or member of
       a party’s household.
       (15) The mental and physical condition of a party or member of a
       party’s household.
       (16) Any other relevant factor.

23 Pa.C.S. § 5328(a).




                                           -9-
J-S75043-19


factors for deciding relocation are set forth in 23 Pa.C.S. § 5337(h).2 When

both custody and relocation are at issue, a court must consider both sets of

factors and thereby determine how the child’s best interests may be served.

See S.J.S. v. M.J.S., 76 A.3d 541, 550 (Pa. Super. 2013) (citing Collins v.


____________________________________________


2A trial court must consider the following relocation factors, giving weighted
consideration to the factors that affect a child’s safety:

       (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.
       (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 § 5328(h).

                                          - 10 -
J-S75043-19


Collins, 897 A.2d 466, 473 (Pa. Super. 2006)) (instructing courts to avoid

“dissociating the issue of primary custody from the issue of relocation,” and

instead decide the issues together “under a single umbrella of best interests

of the children.”).

       In this case, the trial court specifically referenced on the record the

statutory factors guiding custody and relocation. The trial court also carefully

evaluated the relevant statutory factors in light of the established facts. The

trial court found that many factors balanced out evenly between Mother and

Father. See Transcript of Custody Trial, 8/7/2019, at 279-87.

       However, the trial court concluded that several custody factors weighed

heavily in favor of Father, including:

      “[W]hich party is more likely to attend to the daily physical,
       emotional, developmental, education and special needs of the
       child.” 23 Pa.C.S. § 5328(a)(1).

      “[W]hich party is more likely to maintain a loving, stable,
       consistent and nurturing relationship with the child adequate for
       the child’s emotional needs.” 23 Pa.C.S. § 5328(a)(9).

      “[N]eed for stability and continuity in the child’s education, family
       life and community life.” 23 Pa.C.S. § 5328(a)(13).

Trial Court 1925(a) Opinion, at 9-10. As outlined in the trial court’s opinion,

each of those statutory custody factors overlap with the substantially similar

factors set forth in the relocation statute. See 23 Pa.C.S. § 5337(h)(2)-(7).

       In support of its conclusion, the trial court discussed the evidence

adduced at the custody trial as well as the credibility of the parties. The trial

court found that while Mother was not unfit to be a parent, she had “failed to

                                      - 11 -
J-S75043-19


provide a consistently stable and nurturing environment for Child, who also

has particular needs related to his intellectual gifts and his interests and

emotional temperament.” Id. at 10.

      In its opinion and at the conclusion of the custody trial, the trial court

also cited numerous examples of Mother’s failings in this regard, as well as

Child’s sensitivity to the negative environment Mother provides. Id. at 10-

11; see also Transcript of Custody Trial, 8/7/2019, at 279-87. Thus, it is

clear that the trial court properly applied the law, notwithstanding Mother’s

disagreement as to how the trial court exercised its discretion in assessing the

record facts.

                                       B.

      Mother asserts in her third appellate claim that the trial court abused its

discretion by basing its decision on Father’s testimony that Mother resides in

an area with a high crime rate. This claim fails because the applicable custody

and relocation statutes require the trial court to give “weighted consideration

to factors that affect the safety of the child[.]”   23 Pa.C.S. § 5328(a); 23

Pa.C.S. § 5337(h).

      In this case, Father’s testimony about the high crime rate in Mother’s

neighborhood was unrefuted. Accordingly, the trial court did not go beyond

its statutory mandate in crediting that testimony and expressing concern that

the area could be detrimental to Child’s physical well-being.




                                     - 12 -
J-S75043-19


                                       C.

      Mother’s fourth and fifth claims may be condensed into a single

argument that the trial court erred in finding that the custody and relocation

order would not significantly impair her ability to exercise her custodial rights.

The applicable custody and relocation statutes required the trial court to

determine whether its ruling would allow the parties to preserve their

relationship with Child, and proximity to Child is a factor in that assessment.

See 23 Pa.C.S. §§ 5328(a)(1), (8), (11); see also 23 Pa.C.S. § 5337(h)(3).

      Here, the trial court did not abuse its discretion because it duly

considered the ability of Mother to exercise her custodial rights. The trial court

credited Father’s promise to encourage and permit contact between Child and

Mother.    The trial court also noted the distance between Father’s new

residence and Mother’s home. Additionally, there was ample evidence that

relocation would benefit Child emotionally and academically.

      In sum, the record reflects that the trial court considered all relevant

evidence, in light of the pertinent statutory factors, to conclude that its order

was in the best interests of Child. The trial court also relied on the evidence

to determine that Mother retained an opportunity to maintain her relationship

with Child. Thus, Mother has not established that the trial court abused its

discretion in ruling that Mother’s custodial rights would not be impaired.




                                     - 13 -
J-S75043-19


                                       D.

      In her final claim, Mother argues that the trial court failed to afford due

weight to Father's past criminality. However, the trial court did take note that

Father had once been sentenced to probation for the unlawful possession of a

firearm, as well as Father’s past abuse of drugs and alcohol. The trial court

determined that Father is now sober, and that the past behavior is too remote

to pose any danger to Child. See Transcript of Custody Trial, 8/7/2019, at

282-83. This Court finds no basis in law or in fact to call into question the

trial court’s assessment of Father’s credibility or the evidence in general.

Thus, the trial court’s order must stand.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/4/2020




                                     - 14 -
