J-A34002-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.A.S.,                                           IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                   Appellee

                           v.

L.A.S.,

                   Appellant                      No. 1347 MDA 2015


                  Appeal from the Order entered July 7, 2015
               in the Court of Common Pleas of Dauphin County
                   Civil Division, at No(s): 2014-CV-5601-CU

BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J.                         FILED FEBRUARY 17, 2016

          L.A.S. (“Mother”) appeals the order of the Court of Common Pleas

of Dauphin County, entered July 7, 2015, that denied her permission to

relocate with her two children to the Lehigh Valley, and granted J.A.S.

(“Father”) shared physical custody and shared legal custody of the parties’

minor children, E.S. (born in June 2008) and L.S. (born in February 2010)

(“Children”). We affirm.

      Mother    and   Father    married   in   2008   and   lived   in   Allentown,

Pennsylvania at the time. Shortly after L.S. was born, the parties relocated

to the Harrisburg area because Father accepted a full-time job with the

Pennsylvania Air National Guard in Middletown, Pennsylvania. Mother was

working part-time as a registered nurse at St. Luke’s Hospital in Bethlehem,

Pennsylvania. Mother continued to work at St. Luke’s Hospital while the
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family resided in the Harrisburg area. The Children continued to spend

significant time in the Lehigh Valley as Mother would often bring the Children

with her when she traveled to work. The Children were cared for by maternal

grandmother and paternal grandmother, both of whom reside in the Lehigh

area.

        Mother and Father separated in May 2012 and Father moved from the

marital residence in July 2012. Mother and Father divorced in December

2012. Following the separation and divorce, Mother and the Children

continued to live in the marital residence in Palmyra, Pennsylvania, as per

the pre-nuptial agreement, and Father moved to suburban Harrisburg.

        E.S. is currently seven years old and has completed first grade at East

Hanover Elementary School. L.S. is currently five years old and attends

preschool at Grantville Nursery School. Due to the Children’s young ages,

the trial court did not interview them.

        On June 11 and 12, 2015, the trial court conducted a custody hearing

in which both parents testified. The following people testified: Arnold

Shienvold, Ph.D., a licensed psychologist with Reigler, Shienvold, and

Associates; K.E., Mother’s friend; P.P., Mother’s boyfriend; D.P., (“Maternal

Grandmother”); C.S., Father’s work supervisor; T.D., a vocational expert;

K.B., Mother’s neighbor; C.P., Father’s girlfriend; and D.S., (“Paternal

Grandmother”).




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      Dr. Shienvold performed a custody evaluation of the parties dealing

with the major issue of whether Mother should be permitted to relocate to

the Lehigh Valley area. Dr. Shienvold assessed the family using a number of

factors that have been identified through research and literature on

relocation. Dr. Shienvold recommended that Mother not relocate and that

the Children remain in the Harrisburg area. He found that there is no

indication that the Children’s lives would be significantly improved if Mother

were permitted to relocate to the Lehigh Valley area. In addition, Dr.

Shienvold testified that, if relocation is granted, the distance between the

parties would cause Father’s level of involvement with the Children’s lives to

decrease. Dr. Shienvold opined that the best interest of the Children would

be served by having both parents remain in the Harrisburg area and

involved in the Children’s lives. When asked to make a recommendation for

a custodial arrangement in the event that Mother were permitted to relocate,

Dr. Shienvold opined that the Children should remain in Harrisburg with

Father.

      Mother testified that she currently resides in Palmyra and works at St.

Luke’s Hospital in Bethlehem as an operating room nurse. Mother is required

to work nine twelve-hour shifts during a six-week period and testified that

she has the flexibility to set up her own schedule. Mother also testified that

she could pick up extra shifts during the week if they were available. Mother

began working at St. Luke’s Hospital in 2002 and has continued working


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there. Mother requested permission to relocate to the Lehigh Valley area

because of work, family, and her current relationship with P.P. Mother also

testified that jobs in the Harrisburg area are not comparable to her current

job because of her pay, her ability to make her own schedule, her retirement

account, and the availability of family to provide childcare.

      Mother also noted that she wished to relocate to the Lehigh Valley

area because a majority of her family, and some of Father’s relatives, reside

there. Mother noted that she takes the Children to the Lehigh Valley during

her custodial weekends and, if she is working, Maternal Grandmother, P.P.

or her sister cares for them. Mother noted that, if she were permitted to

relocate, she would continue to utilize her family for childcare.

      Mother also alleged that she wishes to relocate because her current

boyfriend, P.P., lives in Philipsburg, New Jersey. Mother testified that she

and P.P. have been dating for two years and are planning to get married and

purchase a home together. Mother stated that those plans have been put on

hold pending the outcome of the current custody action. P.P. currently

commutes to New York City for work and also has a child of his own who

lives in Phillipsburg. Therefore, P.P. is prevented from moving to the

Harrisburg area.

      On Mother’s custodial weekends, she and the Children frequently stay

at P.P.’s home. Mother testified that the Children have made friends in P.P.’s

neighborhood. P.P. testified that he sees the Children every Friday and the


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Children even have their own room in his home. Mother was unable to

specifically identify a school district in which she wishes to relocate. She

testified that she and P.P. have looked at homes in a number of areas, but

have not settled on one area in particular.

      Mother requests primary custody with permission to relocate, and

proposes that Father have custodial time from Friday after school until

Sunday for three weekends a month during the school year. During the

summer, Mother proposes a shared physical custody schedule where Father

has custody from Saturday to Tuesday, or Wednesday if Father is off from

work and every other week.

      Father testified that he currently resides in the Central Dauphin School

District, and works at the Pennsylvania Air National Guard base in

Middletown. Father’s current work schedule is 6:00 a.m. until 4:00 p.m.

Thursday through Saturday, plus every other Wednesday and Sunday during

drill weekends. In addition, if Father is working as flight chief or in armor, he

must report to work between 5:00 a.m. and 5:30 a.m. Father’s supervisor

testified that Father can only adjust his current schedule under special

circumstances.

      Currently, Father’s custodial periods occur when he is not working and

he is able to care for the Children himself. Father’s girlfriend, C.P., helps out

some Sundays when she has her children and Father testified that the

children get along well together. Father also testified that he and C.P.


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became close because they were going through similar issues and have been

dating for a year and a half. C.P. lives in her own home, but Father testified

that they plan on moving their relationship forward once the respective

custody issues have been settled.

      Father is actively involved in the Children’s lives and attends their

activities when possible. Father testified that, if the activity occurs while he

is working, he tries his best to accommodate it. Father also testified that he

attends as many medical appointments as his schedule allows. However,

Mother usually attends all of the Children’s medical appointments, as her

schedule allows her to be available during the week.

      Father testified that he opposes Mother’s request for relocation

because it would significantly impair his ability to stay involved in the

Children’s lives. Father also noted that he has concerns with Mother’s past

relationship history as it has led to instability and questions her motives for

relocation. Father is requesting that Mother not be permitted to relocate,

and that the parties share physical custody. In the event that Mother is

permitted to relocate, Father is requesting primary physical custody of the

Children. Father testified that, if he were awarded primary physical custody,

the Children would attend Mountainview Elementary School in the Central

Dauphin School District. In addition, Father testified that he would request

that his work schedule be changed to a weekly schedule of four ten-hour day

shifts.


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      Father also stipulated that he would utilize childcare on the days that

he works and, if available, would drive the Children to school. In addition,

C.P. would be able to provide childcare for the Children if needed. C.P. works

for the Department of Veterans Affairs from 7:15 a.m. until 3:30 p.m.

Monday through Friday. Paternal Grandmother also testified that she is

thinking about retirement and would be available to assist Father.

      The trial court denied Mother’s request for relocation to the Lehigh

Valley and granted Father shared physical custody and legal custody. This

timely appeal followed.

      On appeal, Mother raises four issues.

      1. Did the trial court commit an abuse of discretion and an error
         of law by denying Mother’s request to relocate with Children
         from Harrisburg, Pennsylvania, to the Lehigh Valley area,
         where denial of Mother’s request to relocate was not in the
         best interest of the Children under the factors provided by 23
         Pa.C.S. § 5328(a), 23 Pa.C.S. § 5337(h), and Pennsylvania
         case law?

            A. Whether the trial court committed reversible error when
               it implicitly applied a presumption against relocation?

            B. Whether the trial court committed reversible error by
               failing to apply the “primary caretaker doctrine” when
               deciding whether to allow Mother and the Children to
               relocate to the Lehigh Valley, and whether to permit
               Mother to retain primary physical custody?

            C. Whether the trial court committed reversible error of
               law and an abuse of discretion by failing to provide
               sufficient weight to the Children’s extended family
               relationships in the Lehigh Valley area, and denying the
               Children’s opportunity to maintain those relationships?



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            D. Whether the trial court committed reversible error and
               an abuse of discretion as the trial court’s conclusions
               regarding the relevant factors of section 5328(a) and
               section 5337(h) are unreasonable in light of the record
               and the court’s other factual findings?

      2. Did the trial court commit an abuse of discretion and an error
      of law by reducing Mother’s periods of physical custody, where
      the reduction of Mother’s periods of physical custody was not in
      the best interest of the Children pursuant to the factors provided
      by 23 Pa.C.S. § 5328(a)?

      3. Did the trial court abuse its discretion and commit an error of
      law by failing to apply 23 Pa.C.S. § 5327(b), the presumption
      that custody shall be awarded to a parent over a third party,
      when the court awarded periods of physical custody to Father at
      times when Father was unavailable to care for the Children,
      where the court effectively provided periods of custody to non-
      parent third parties, over Mother?

      4. Did the trial court commit an abuse of discretion and an error
      of law by entering a custody order which established an
      exchange time that [M]other was physically unable to meet, as
      evidenced by exhibits provided by [M]other at the custody
      hearing?

Mother’s Brief at 7-8.

      Our scope and standard of review 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.

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C.R.F., III v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).

       The primary concern in any custody case is the best interests of the

child. “The best-interests standard, decided on a case-by-case basis,

considers all factors that legitimately have an effect upon the child’s

physical, intellectual, moral, and spiritual wellbeing.” Saintz v. Rinker, 902

A.2d 509, 512 (Pa. Super. 2006) (citation omitted).

       In its opinion, the trial court presented a complete analysis of all the

relevant factors enumerated at 23 Pa.C.S.A. § 5328(a) and § 5337(h).

       Mother first contends that the trial court abused its discretion in

awarding shared physical custody to Mother and Father and by not allowing

Mother to relocate with Children to the Lehigh Valley area when Mother was

unable to properly identify the new school district where they would reside

and where Mother presented no information regarding the new school

district.

       The trial court considered all of the relocation factors laid out in 23

Pa.C.S.A. § 5337(h). The trial court found that, if Mother relocated, the

extent of Father’s involvement would be significantly reduced due to Father’s

work hours and the increased distance to the Lehigh Valley area. In addition,

Dr. Shienvold opined that relocation is generally not preferred for younger

children since the transitions tend to be more difficult. At trial, Dr. Shienvold

testified that L.S. would have a more difficult time due to her vulnerable

personality.

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      The trial court reasoned that, although the relocation to the Lehigh

Valley area may enhance Mother’s quality of life overall by reducing the

financial strain and the amount of time spent traveling, Mother created the

situation in which she now finds herself. When Mother and Father relocated

to the Harrisburg area during their marriage, Mother continued to work in

the Lehigh Valley area. Mother briefly attempted to look for a job in the

Harrisburg area, but nothing came to fruition. After Mother and Father

separated, Mother continued to travel to work at St. Luke’s Hospital in

Bethlehem, and began dating a man who lived in New Jersey. However, both

Mother and Father created a life for the Children in the Harrisburg area, and

Father intends to remain in the area with the Children.

      The trial court determined that relocation would not enhance the

general quality of life for the Children. The trial court found that the Children

have resided in the Harrisburg area for their entire lives, and have friends,

attend school, have medical providers, and are enrolled in activities in the

area. The trial court noted that Mother never provided a specific area to

which she intended to relocate in the Lehigh Valley area. At trial, Mother

stated that she may relocate to the Saucon Valley, Greenwich Township, or

Lopatcong school districts. Mother provided no testimony that any of the

school districts was superior to school district the Children currently attend.

      At the hearing, there was no testimony that the medical providers in

the Lehigh Valley were superior to those the Children currently have.


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However, the trial court noted that, since Mother works at St. Luke’s

Hospital, she may have more personal connections with medical providers in

the Lehigh Valley area than in the Harrisburg area. The trial court also took

under consideration Dr. Shienvold’s opinion that relocation would not provide

a significant benefit to the Children. Thus, the trial court ruled that Mother’s

relocation would not provide a significant benefit to the Children, and was

not in the best interest of the Children.

      Mother also argues that the trial court committed reversible error by

failing to apply the “primary caretaker” doctrine when deciding whether to

allow Mother and the Children to relocate to the Lehigh Valley area, and

whether to permit Mother to retain primary physical custody.

      However, the trial court correctly found that Mother cites to outdated

case law decided prior to the enactment of the Custody Act to bolster her

claim. The trial court acknowledged that Mother had historically been the

parent who attended to the Children’s medical and educational needs when

considering the best interests factors. However, following the enactment of

the Custody Act, the trial court was not required to give weighted

consideration to Mother’s prior role as primary caretaker when considering

the best interest and relocation factors. See, e.g., W.C.F. v. M.G., 115

A.3rd. 323, 330 (Pa. Super. 2015).

      Father conceded that, due to Mother’s working part-time after the

Children were born to the present, Mother had been able to schedule and


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attend more medical and dental appointments. In addition, Mother is able,

due to her part-time job schedule, to be involved at the Children’s school

during the day. However, Father has been, and continues to be, in the

Children’s lives. The record shows that Father has always been involved in

the Children’s activities, attends their recitals, attends medical appointments

when he can, and attends school functions. Moreover, the trial court

properly acknowledged the parental duties that the parents perform on

behalf of the Children and the trial court properly recognized that both

parents performed parental duties to the fullest extent possible in light of

their respective employment. Thus, the trial court was not required to

consider the primary caretaker doctrine in awarding shared physical custody

to the parents.

      The trial court did properly consider each parent’s involvement in the

Children’s lives and did not err in granting Father and Mother shared

physical custody of the Children.

      Mother also argues that the trial court did not consider the Children’s

extended family relationships in the Lehigh Valley. The trial court found that

Mother correctly stated that one factor Pennsylvania courts have considered

in denying a request for relocation is a child’s strong relation with extended

family. However, Mother fails to cite any case law in which a child’s

relationships with extended family was a deciding factor in granting a

request.


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      In this case, the Children already see their maternal and paternal

grandmother and their maternal great grandmother regularly. Although the

other relatives reside in the Lehigh Valley area, the trial court found no

evidence that the Children’s contact with them would increase if Mother

relocated. Even when children have extended family in the proposed

relocation area, the court does not automatically permit the requesting

party, Mother in this case, to relocate.

      The fact that the Children’s grandmothers reside in Bethlehem is not

alone satisfactory to grant Mother’s relocation request. The Children

currently see Mother’s mother and father on a regular basis while they

reside in Harrisburg. Moreover, not all of Father’s family resides in the

Lehigh Valley area. Father testified that his father and the rest of his

paternal family reside in Pittsburgh. Therefore, Mother’s argument that the

trial court ignored the custody factor regarding extended family is meritless.

      With regard to relocation, Mother also argues that the trial court

committed reversible error and abused its discretion regarding the relevant

factors of section 5328(a) and section 5337(h) as unreasonable in light of

the record and the court’s other factual findings. Mother argues that the trial

court’s analysis of the factors was similar to the trial court’s opinion in

J.R.M. v. J.E.A., 33 A.2d 647 (Pa. Super. 2011). This Court noted in J.R.M.

that the trial court based its decision almost exclusively on the fact that the




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child was breastfeeding and on the parties’ communication difficulty and

failed to consider any other factors.

      In direct contrast, the trial court in this case specifically considered

each factor under both section 5328(a) and section 5337(h). The trial court

found that, as to custody factor (3), both parties performed parental duties

for the Children. As to custody factor (5), the trial court noted that both

parties had family in the Lehigh Valley, but that Paternal Grandmother

testified that she was willing and available to assist with care for the

Children in the Harrisburg area. As to custody factor (10), Mother was the

parent who attended the Children’s medical and educational appointments in

light of the fact that since the Children were born, she usually worked at

most two or three days a week. However, Father had attended appointments

when he was able in light of his full-time employment. Both parties attend to

the daily needs of the Children. Both the trial court and Dr. Shienvold found

that Father is actively involved in the Children’s lives and attends all

activities on the days he is available. As to custody factor (12), the trial

court was required only to consider the parties’ abilities to care for the

Children or abilities to make appropriate child care arrangements. While

Mother wants to penalize Father because he works a full time job while she

works only two or three days per week, despite both Children being in

school, this Court has held that a party’s “work schedule may not deprive

[him] of custody if suitable arrangements are made for the child’s care in his


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. . . absence.”   Johnson v. Lewis, 870 A.2d 368, 374 (Pa. Super. 2005)

(citation omitted).

      As to relocation factor (1), the trial court noted that both parties were

significantly involved in the Children’s lives. Although Mother testified that

Father was not significantly involved in the care of the Children until he

commenced the custody action, Dr. Shienvold and the trial court found that

Father is actively involved in the Children’s lives and attends all activities on

the days that he is available. As to relocation factor (2), Mother seems to

completely ignore Dr. Shienvold’s testimony regarding the impact a

relocation would have on the Children. The trial court noted that Dr.

Shienvold testified that transitions are more difficult for younger children.

L.S. would have a harder time with the transition due to her vulnerable

personality.

      As to relocation factor (3), Mother underestimates the negative impact

a relocation would have on Father’s relationship and level of contact with the

Children. Both Father and Dr. Shienvold have testified concerning Father’s

high involvement in the lives of the Children. If Mother were to relocate,

there would be no way for Father to maintain the same relationship he

currently has with the Children. Father would not be able to spend the same

quality time that he currently spends with the Children and would not be

able to attend the Children’s various extracurricular activities.




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      As to relocation factor (6), there would be some benefits for Mother

should she be permitted to relocate to the Lehigh Valley area. However,

these factors would not have a positive effect on the Children. Mother states

that it is important that she maintain her employment at St. Luke’s Hospital

in Bethlehem, rather than assuming full-time and potentially more lucrative

employment in the Harrisburg area. While Mother argues that she would

spend more time with the Children if she moved to Bethlehem, Father would

get less time. In addition, if Mother would reside with her paramour, P.P.,

they would be sharing living expenses; however, the relationship between

Mother and P.P. is unstable—both Mother and P.P. testified that, if Mother

could not relocate, their relationship would be in jeopardy.

      In addition, Mother’s financial issues would not be completely

remedied simply by living with her paramour. While Mother noted that she

could not continue to reside in her current home, she offered no definitive

budgetary evidence supporting her claim. The trial court did not ignore

Mother’s testimony concerning her financial issues and acknowledged that,

should Mother relocate, she would no longer have to make mortgage

payments. The trial court further noted that, while relocation may reduce

Mother’s financial strain and amount of time Mother spent travelling, the

court could not ignore that Mother created her current situation. After the

parties separated, Mother continued to travel to the Lehigh Valley area for

work and began her relationship with P.P. in disregard of the fact that she


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and Father created a life in the Harrisburg area, where Father intends to

remain. In addition, Mother is very active in the Children’s schooling in

Harrisburg and with friends in her neighborhood and in the PTA. The trial

court found Mother’s argument that she has no friends or life in Harrisburg

unpersuasive.

      As to factor (7), the trial court properly determined that the relocation

would not significantly enhance the Children’s lives. The court noted that the

multiple school districts in the proposed relocation area are comparable to

the Children’s current school district; that the Children would not have

access to better medical providers; and that the Children have friends in the

Harrisburg area. The Children already spend time with extended family when

Mother is in Bethlehem. Finally, Dr. Shienvold recommended that Mother not

be permitted to relocate with the Children. Dr. Shienvold testified that there

is no significant benefit to the Children in relocating, and that the Children

are thriving in Harrisburg. Thus, the trial court considered all of these factors

when considering the best interests of the Children.

      Based on the relevant custody and relocation factors under sections

5328 and 5337 and based on Dr. Shienvold’s recommendation, the trial

court properly determined that an award of shared physical custody and the

denial of Mother’s relocation request was in the Children’s best interests.

Therefore, the trial court did not err or abuse its discretion.




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      In Mother’ second issue she contends that the trial court committed an

abuse of discretion and error of law by reducing Mother’s periods of physical

custody, and that the reduction of Mother’s custodial periods was not in the

best interest of the Children pursuant to 23 Pa.C.S.A. § 5328(a).

      In this case, the trial court did consider Dr. Shienvold’s testimony and

determined that it is in the best interests of the Children for the parties to

equally share physical custody, especially where Father’s circumstances have

changed since he and Mother entered into the prior custody agreement. The

trial court noted that it believed the custody order essentially effectuates Dr.

Shienvold’s recommendation and serves the best interests of the Children.

Therefore,    the   trial   court   properly    considered    Dr.    Shienvold’s

recommendation.

      The trial court determined that it is in the best interests of the Children

for Father to exercise custody during his drill weekends in order to maximize

his custodial time with the Children as he works from 6:00 a.m. until 3:00

p.m. While the prior custody schedule delayed the start of Father’s custodial

time period until Sunday evening, Father is permitted to have custody on

drill weekends whereby his significant other, C.P., and Paternal Grandmother

are available to watch the Children, just as Maternal Grandmother and

Mother’s significant other are available to watch the Children on weekends

that Mother works. In addition, Father’s schedule has changed whereby he is

now off from work on alternating Wednesdays and is available to provide


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direct supervision of the Children. Thus, since Father is available to spend

more quality time with the Children, the trial court did not err in awarding

Mother and Father shared physical custody.

      In Mother’s third issue, she contends that the trial court awarded

custody to a third party, and thus 23 Pa.C.S.A. § 5327(b) is applicable.

Mother cites Wiseman v. Wall, 718 A.2d 844 (Pa. Super. 1998), in support

of the position that Father should not be awarded custody on the

Saturday overnights during his drill weekend as he has to work on Sunday

for a few hours.

      The trial court found that Wiseman can easily be distinguished. In

Wiseman, the Children were spending long periods of time in daycare or

with Father’s girlfriend. In this case, the Children would be spending five or

six hours in the care of Paternal Grandmother or Father’s girlfriend on one

day each month. Thus, the change is in Children’s best interests because the

Children get to spend more quality time with Father. In addition, Father’s

additional time on alternating Wednesdays will be spent with the Children as

Father does not work on alternating Wednesdays.

      While Mother argues that the trial court’s order would reduce the

amount of time Mother’s extended family spends with the Children, it would

only reduce Mother’s custodial time three days each month. Therefore, the

trial court did not award custody of the Children to a third party, and section

5327(b) is not applicable.


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      And finally, in issue four, Mother argues that the trial court committed

an abuse of discretion and an error of law by entering a custody order which

established an exchange time of 8:00 p.m. Mother states that she is unable

to return to Harrisburg for custody exchanges.

      The record shows that the trial court was merely attempting to

mediate the exchange issue on a temporary basis and made it clear that the

issue would be addressed in the final order. Despite Mother’s testimony that

she has the flexibility to make her own schedule, she now argues that she is

unable to meet in Harrisburg for timely custody exchanges at 8:00 p.m.

      The issues concerning the exchange time when Mother is unavailable

and the inappropriate holiday schedule are deemed moot based on the trial

court’s order of August 3, 2015, partially granting Mother’s request for

reconsideration.

        The order of the Court of Common Pleas of Dauphin County, entered

July 7, 2015, that denied Mother permission to relocate with her two children

to the Lehigh Valley and granted Father shared physical custody and shared

legal custody of the parties’ minor children is affirmed.




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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/17/2016




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