J-A26001-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

R.P.Y.,                                        IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                  Appellee

                        v.

S.E.Y.,

                  Appellant                    No. 773 MDA 2014


               Appeal from the Order entered April 14, 2014,
               in the Court of Common Pleas of York County,
                Civil Division, at No(s): 2008-FC-000619-Y03

BEFORE: BOWES, MUNDY, and JENKINS, JJ.

MEMORANDUM BY BOWES, J.:                       FILED DECEMBER 08, 2014

      S.E.Y. (“Mother”) appeals from the custody order denying her request

to relocate with the parties’ son, A.Y., from Dover, Pennsylvania, to

Millersville, Maryland, and setting forth a custody award. We affirm.

      We summarize the relevant factual and procedural history as follows.

A.Y. was born in March of 2003 during the marriage of Mother and R.P.Y.

(“Father”).   Mother and Father separated in 2006, and they divorced in

2008. By stipulated order dated April 9, 2008, the parties agreed that they

would share legal and physical custody, with Father having physical custody

primarily overnight, and Mother having custody during the day when Father

is at work, inter alia. Further, the parties agreed that A.Y. would attend the

Dover Area School District, wherein Mother resided.
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      A.Y. has attended school in the Dover Area School District since

kindergarten. At all times relevant hereto, Mother has lived in Dover, York

County. Father has lived in Lewisberry, York County, which is located in the

West Shore Area School District. The driving distance between the parties’

homes is approximately 30 minutes. N.T., 3/21/14, at 45.

      On October 4, 2013, Mother provided Father with notice of her

proposed relocation with A.Y. to Millersville, Maryland.      On October 30,

2013, Father filed a counter-affidavit wherein he objected to the proposed

relocation and to modification of the custody order. On November 7, 2013,

Mother filed a petition for modification of the custody order and requested a

hearing on relocation.     In her petition, Mother alleges that, since the

stipulated custody order, she has exercised primary physical custody and

Father has exercised partial custody.        Further, Mother assumes that the

proposed relocation would improve the quality of life for her and A.Y.

Mother claims that her fiancé, L.G., would be closer to his place of

employment by relocating to Millersville, Maryland. Mother announces that

she is expecting a child with her fiancé, and that they plan to live as a family

unit in the Millersville, Maryland area.     Mother alleges that she and A.Y.

would be relocating to a bigger home.        Finally, Mother purports that A.Y.

would be able to attend a school district with a better rating than the Dover

Area School District.




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      Following a custody conciliation conference, by interim order dated

January 24, 2014, the court granted the parties shared physical custody on

a two-week basis.    During week one, Father was granted custody from

Saturday at 6:30 p.m. until Wednesday at 8:30 a.m., and Mother from

Wednesday at 8:30 a.m. until Sunday at 5:00 p.m.           During week two,

Father was granted custody from Sunday at 5:00 p.m. until Wednesday at

8:30 a.m., and Mother from Wednesday at 8:30 a.m. until Saturday at

6:30 p.m.

      On March 10, 2014, the trial court interviewed A.Y. in camera, at

which time he was nearly eleven years old and in the fifth grade. The court

held an evidentiary hearing on Mother’s petition on March 21, 2014, and

March 28, 2014, during which the following witnesses testified: Mother; L.G.,

Mother’s fiancé; M.S., Mother’s neighbor; K.B., Mother’s sister; K.L.,

Mother’s friend; Father; K.Y., Father’s wife; and T.L.G., the mother of L.G.,

Mother’s fiancé.

      By order dated April 11, 2014, and entered on April 14, 2014, the trial

court denied Mother’s request for relocation, granted the parties shared legal

custody, and granted the parties physical custody as follows.       If Mother

relocates to Maryland or to another location more than 30 minutes from

Dover, Pennsylvania, the court granted Father primary physical custody and

Mother partial custody three weekends per month during the school year.

During the summer, the court granted Mother partial custody from Tuesday


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evening until Sunday evening in weeks when Father works on Sunday, and

in weeks when Father does not work on Sunday, the court granted Mother

partial custody from Tuesday evening until Saturday evening.         If Mother

continues to reside in the Dover Area School District or resides within 30

minutes of Dover, Pennsylvania, the court granted the parties shared

physical custody as described in the interim order dated January 24, 2014,

set forth above. In addition, the court granted the parties one uninterrupted

nine-day period of partial custody during the summer, and the court set

forth a holiday custody schedule. Mother timely filed a notice of appeal and

a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i) and (b).

     On appeal, Mother presents the following issues for our review:

     I.      Whether the trial court committed an error of law in
             granting the parties shared physical custody if Mother
             stays within thirty (30) [minutes] of Dover, Pennsylvania,
             despite finding that five of the sixteen factors outlined in
             23 Pa.C.S.A. § 5328 favor Mother having primary physical
             custody and all other factors were neutral[?]

     II.     Whether the trial [c]ourt erred in denying [Mother]’s
             Petition for Relocation and Granting [Father] Primary
             Custody if [Mother] moves further than thirty (30)
             [minutes] from Dover, Pennsylvania Based Upon the
             Considerations Listed Below:

           A. Whether the trial court committed an abuse of
              discretion in failing to give proper weight to the fact
              that Father’s work schedule inhibits his ability to care
              for [A.Y.] five - six days of the week, when granting
              Father primary physical custody if Mother relocates[?]



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         B. Whether the trial court committed an abuse of
            discretion in failing to give proper weight to the
            negative impact on [A.Y.]’s emotional, physical and
            educational development by granting Father primary
            custody if Mother relocates?

         C. Whether the trial court committed an abuse of
            discretion in not giving proper weight to [A.Y.]’s
            preference?

         D. Whether the trial court committed an abuse of
            discretion in determining that [A.Y.]’s quality of life
            will be greater served by Father having primary
            custody if Mother relocates, despite the possible
            implications for Father’s financial circumstances and
            his family home if Father moves to [A.Y.]’s current
            school district?

         E. Whether the trial court committed an abuse of
            discretion in failing to consider Father’s financial
            motivation for opposing Mother’s relocation?

Mother’s brief at 18-19.

      The scope and standard of review in custody matters is well-

established:

            [T]he appellate court is not bound by the deductions or
         inferences made by the trial court from its findings of
         fact, nor must the reviewing court accept a finding that
         has no competent evidence to support it. . . . However,
         this broad scope of review does not vest in the reviewing
         court the duty or the privilege of making its own
         independent determination. . . . Thus, an appellate court
         is empowered to determine whether the trial court’s
         incontrovertible factual findings support its factual
         conclusions, but it may not interfere with those
         conclusions unless they are unreasonable in view of the
         trial court’s factual findings; and thus, represent a gross
         abuse of discretion.




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         R.M.G., Jr. v. F.M.G., 2009 PA Super 244, 986 A.2d 1234, 1237
         (Pa.Super. 2009) (quoting Bovard v. Baker, 2001 PA Super
         126, 775 A.2d 835, 838 (Pa.Super. 2001)). Moreover,

              [O]n issues of credibility and weight of the evidence,
            we defer to the findings of the trial [court] who has had
            the opportunity to observe the proceedings and
            demeanor of the witnesses.

               The parties cannot dictate the amount of weight the
            trial court places on evidence. Rather, the paramount
            concern of the trial court is the best interest of the child.
            Appellate interference is unwarranted if the trial court’s
            consideration of the best interest of the child was careful
            and thorough, and we are unable to find any abuse of
            discretion.

         R.M.G., Jr., supra at 1237 (internal citations omitted). The test
         is whether the evidence of record supports the trial court’s
         conclusions. Ketterer v. Seifert, 2006 PA Super 144, 902 A.2d
         533, 539 (Pa.Super. 2006).

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

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

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

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

physical, intellectual, moral, and spiritual well-being.”     Saintz v. Rinker,

902 A.2d 509, 512 (Pa.Super. 2006) (citing Arnold v. Arnold, 847 A.2d

674, 677 (Pa.Super. 2004)).

         Because the hearing in this matter was held in March of 2014, the

Child Custody Act (“Act”), 23 Pa.C.S. §§ 5321-5340, is applicable.           See

C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa.Super. 2012) (holding that, if the

custody evidentiary proceeding commences on or after the effective date of


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the Act, i.e., January 24, 2011, the provisions of the Act apply).     Section

5328(a) of the Act provides an enumerated list of factors a trial court must

consider in determining the best interest of a child when awarding any form

of custody:

     § 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.

            (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

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          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). Separately, § 5337(h) enumerates ten factors a court

must consider in determining whether to grant a proposed relocation:

        (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.


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            (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. § 5337(h).

     This Court has stated, in relevant part,

     When deciding a petition to modify custody, a court must
     conduct a thorough analysis of the best interests of the child
     based on the relevant Section 5328(a) factors. E.D. v. M.P., 33
     A.3d 73, 80 (Pa.Super. 2011). “All of the factors listed in

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      section 5328(a) are required to be considered by the trial court
      when entering a custody order.” J.R.M. v. J.E.A., 33 A.3d 647,
      652 (Pa.Super. 2011) (emphasis in original). Section 5337(h)
      requires courts to consider all relocation factors. E.D., supra at
      81. The record must be clear on appeal that the trial court
      considered all the factors. Id.

      Section 5323(d) provides that a trial court “shall delineate the
      reasons for its decision on the record in open court or in a
      written opinion or order.” 23 Pa.C.S.A. § 5323(d). Additionally,
      “section 5323(d) requires the trial court to set forth its
      mandatory assessment of the sixteen [Section 5328 custody]
      factors prior to the deadline by which a litigant must file a notice
      of appeal.” C.B. v. J.B., 65 A.3d 946, 955 (Pa.Super. 2013),
      appeal denied, 70 A.3d 808 (Pa. 2013). Section 5323(d) applies
      to cases involving custody and relocation. A.M.S. v. M.R.C., 70
      A.3d 830, 835 (Pa.Super. 2013).

A.V., 87 A.3d at 822-823. In this case, the trial court set forth a detailed

and comprehensive analysis of each custody factor of § 5328(a) and each

relocation factor of § 5337(h) in its opinion accompanying the subject order.

See Trial Court Opinion, 4/14/14, at 9-22.

      In her first issue, Mother argues that the court committed an error of

law by not granting her primary physical custody if she continues to reside in

the Dover Area School District or within 30 minutes of Dover, Pennsylvania.

Specifically, Mother avers the court’s decision is unreasonable when it found

that § 5328(a)(3), (4), (7), (10), and (12) weighed in her favor and that the

other custody factors were neutral between the parties. In addition, Mother

states “[t]here are at least two additional [custody] factors under which

[she] should have prevailed . . . resulting in seven factors weighing [in]

favor of Mother having primary physical custody. . . .” Mother’s brief at 27.


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       The relevant testimonial evidence with respect to the custody factors is

as follows. Mother lives with L.G., her fiancé, and their newborn son, D.G.,

in Dover, York County.         N.T., 3/21/14, at 6.    Mother testified that, in

November of 2013, she became a stay-at-home mother by quitting her job

as an administrative assistant and marketing manager for TM Systems. Id.

at 7, 82-83. Mother testified that, if she decides to return to the work force,

she will work for L.G.’s company located in Millersville, Maryland, in a

position that will offer a flexible schedule so that she can be available for

A.Y. and D.G. Id. at 69. L.G. testified that, if Mother decides to return to

the work force, his company would offer her a part-time position as office

administrator for approximately $31,000, and the position “would be very

flexible.” Id. at 126.

       Father   lives   in   Lewisberry,   York   County,   with   his    wife,   K.Y.

(“Stepmother”), and their daughter, O.Y., who is age four.               Id. at 204.

Father testified that, for nearly two years, he has been employed by Chesaco

RV, a company which sells recreational vehicles. Id. at 199, 228. Father is

employed as the company’s business and financing manager in the

Frederick, Maryland office, which is 70 miles from his home, or a driving

distance of approximately one hour and twenty minutes. Id. at 197, 228-

232.

       Father testified that his company is open until 7:00 p.m. from mid-

March through October (“seasonal months”) and until 6:00 p.m. during the


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off-season. N.T., 3/28/14, at 74. Father testified he works on Mondays all

year from 8:30 a.m. until 4:00 p.m. Id. at 73.     He is off on Tuesdays every

month of the year.      Father works from 8:30 a.m. until 7:00 p.m. on

Wednesdays and Thursdays during the seasonal months and until 6:00 p.m.

during the off-season. Id. at 74. On Fridays and Saturdays, Father works

from 8:30 a.m. until 5:00 p.m. every month of the year.            During the

seasonal months, Father works on alternating Sundays from 11:00 a.m.

until 4:00 p.m. Id. Father does not work on any Sundays during the off-

season. N.T., 3/21/14, at 199.

       Father testified that Stepmother has been unemployed since July or

August of 2013. Id. at 219. Stepmother testified she intends to return to

the work force, but she is looking for a job with a traditional Monday through

Friday schedule, from 9:00 a.m. until 5:00 p.m., so that she can assist with

the extracurricular activities of her daughter and A.Y. N.T., 3/28/14, at 12.

Stepmother’s most recent job was in retail, which did not offer a traditional

work schedule. N.T., 3/21/14, at 220, 241.

       Significantly, Father testified that A.Y. lived primarily with him after

the parties’ separation in 2006 and until the stipulated order in 2008. Id. at

191.   Mother testified that, once A.Y. began school, A.Y. stayed overnight

with her more than with Father. Id. at 25-26. Stepmother acknowledged

that, within the last one and one-half to two years, Mother has exercised

more physical custody than Father, including Mondays, Wednesdays,


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Thursdays, and Fridays after school. N.T., 3/28/14, at 23. However, Father

testified that: he has never missed being present for A.Y.’s first day of

school, he has attended most of A.Y.’s parent-teacher conferences, he and

Stepmother assist A.Y. with his homework, if needed, and he takes A.Y. to

the majority of his dental appointments. N.T., 3/21/14, at 211-214.

     Mother implied in her testimony that Father has been consistent with

the custody schedule set forth in the January 2014 interim order because

Stepmother “has been able to help out.”     Id. at 37.   Stepmother testified

she has always assisted in the transportation needs of A.Y. during Father’s

physical custody time, including picking him up from day care, taking him to

the bus stop, and/or transporting him to or from Mother’s home.         N.T.,

3/28/14, at 10-11, 18.

     Father testified that he and Stepmother have listed their home for sale

and they are planning to move to the Dover Area School District so that A.Y.

can remain in the same school, where he is doing “very well.”           N.T.,

3/21/14, at 194, 201.     Father requested that he and Mother continue to

share physical custody if Mother decides not to relocate. Id. at 227.

     In his in camera testimony, A.Y. stated what he liked most about being

at Mother’s house, as follows:

     [THE COURT]: [W]hat do you like most about being at your
     mom’s house?

     [A]: I don’t know.

     [THE COURT]: Anything jump out?

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      [A]: I kind of like hanging out with my friends.

N.T., 3/10/14, at 9.    A.Y. testified he has three friends who live near his

Mother’s house, and he also spends time with his two cousins when he is at

Mother’s house. Id. at 6. A.Y. testified he does not have any friends who

live near Father’s house. Id. at 7. With respect to what he likes most about

being at Father’s house, A.Y. testified, “I guess I like hanging out with my

dad and . . . [O.Y.]”, his younger half-sister. Id. at 9. A.Y. testified that

both Mother and Father telephone him to say “good night” when he is at the

other parent’s house. Id. at 10-11.

      A.Y. testified with respect to his relationship with Stepmother and L.G.,

as follows:

      [THE COURT]: How about anything that you dislike about being
                   at your dad’s house?

      [A]: Kind of feel a little uncomfortable around [Stepmother].

              ....

      [THE COURT]: How about with [L.G.], how do you get along with
                   him?

      [A]: I usually get along with him pretty good.

      [THE COURT]: And you are more comfortable with being around
                   [L.G.] than you described being a little
                   uncomfortable being around [Stepmother]?

      [A]: Yes, a little bit more.

      [THE COURT]: Just a little. A little closer with him than with
                   [Stepmother]?

      [A]: Yes.

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Id. at 10.

      With respect to his custody preference, A.Y. testified he does not like

transitioning from Mother’s house to Father’s house at night during the

school week. A.Y. stated, “I kind of don’t like the nights dad picks me up. It

is kind of like I go to the house and to the next. I don’t really like that. I

just like to stay at the house that day and stay the night there.” Id. at 12.

A.Y.’s testimony continued,

      [THE COURT]: The time when you make that transition at the
                   end of the day is tough?

      [A]: Yes. I don’t really like that.

      [THE COURT]: [W]hen you transition back, when you go to
                   school, . . . like when you are with your dad, he
                   takes you to school in the morning?

      [A]: [Stepmother] usually takes me to school in the morning.

      [THE COURT]: So that transition is kind of easier? It is in the
                   morning, you [go to] school, and then you are
                   back with mom at the end of the day?

      [A]: Yeah.

Id. at 12.1




1
   We observe that the custody schedule in the January 24, 2014 interim
order, which the parties are to continue to follow should Mother decide not
to relocate pursuant to the final order, directs that the custody exchange
during the school week occur on Wednesday mornings, and that the custody
exchange on weekends occur in the evenings. Thus, the shared physical
custody schedule conforms to A.Y.’s preference not to transition from one
house to the other in the evenings during the school week.
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      A.Y. testified that he started to go to Father’s house more regularly, “I

think like when my dad got the papers or whatever, he started to have me a

lot more.” Id. at 31. His testimony continued,

      [THE COURT]: So, when he got the papers relates to the custody
                   trial?

      [A]: Yes. Like, he got me a lot more. . . .

Id. A.Y. expressed his custody preference to the court as follows: “I want to

move with my mom. I want to be with my mom. I still want to see my dad,

but just not the crazy schedule. I just want to be with my mom.” Id. at 42.

      Instantly, the trial court weighed the custody factors and concluded

that, if Mother continues to reside in the Dover Area School District or within

30 minutes of Dover, Pennsylvania, it is in A.Y.’s best interest that the

parties share physical custody.     Upon review, we discern no abuse of

discretion by the court in this regard as it is “within the court’s purview as

the finder of fact to determine which factors are most salient and critical in

each particular case.” M.J.M. v. M.L.J., 63 A.3d 331, 339 (Pa.Super. 2013)

(citation omitted); see also A.V. v. S.T., supra at 820 (stating that, on

issues of credibility and weight of the evidence, we defer to the findings of

the trial court).

      As Mother asserts on appeal, with respect to § 5328(a)(7), i.e., the

well-reasoned preference of the child, the court found that A.Y. “does appear

to currently have a closer relationship with Mother than Father which argues

in support of this factor favoring Mother.” Trial Court Opinion, 4/14/14, at

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20.    However,    the   court    found   “[i]t   was   apparent   from   [A.Y.]’s

responses . . . that a substantial portion of [A.Y.]’s in camera testimony was

reflective of information his Mother had provided him. Additionally, at trial,

it was confirmed that prior to [A.Y.]’s testimony, Mother had prepared and

coached [A.Y.] in preparation for his testimony.”2 Id. at 19-20 As such, the

court explained that it gave A.Y.’s custody preference “significantly less

weight” because of A.Y.’s age and Mother’s “apparent efforts to unduly

influence his testimony.”   Id.

      Likewise, as Mother asserts, the court found that § 5328(a)(3), (4),

(10), and (12) weighed in her favor because she is currently a stay-at-home

parent and is more available to care for A.Y.’s day-to-day needs. Further,

with respect to § 5328(a)(4), i.e., the need for stability and continuity in the

child’s education, family life and community life, and § 5328(a)(10), i.e.,

which party is more likely to attend to the daily physical, emotional,

developmental, educational and special needs of the child, the court

reasoned that A.Y. “feels comfortable with his current schedule with Mother.”

Trial Court Opinion, 4/14/14, at 18. In addition, the court found that Mother




2
   Mother testified on direct examination that she showed A.Y. questions
prepared by Mother’s counsel prior to his in camera testimony so that he
would know “what to expect and [so that he is] not so nervous.” N.T.,
3/21/14, at 54. Mother testified A.Y. “did read them[,] and he did have
comments for me. . . .” Id. Mother testified she reviewed the list of
questions with A.Y., but she did not direct A.Y. how to answer the questions.
Id. at 54, 88.
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“is very emotionally supportive and ensures all of [A.Y.]’s needs are met.”

Id. at 21.

      To the extent Mother alleges the court erred by not additionally

weighing § 5328(a)(11), i.e., the proximity of the parties, in her favor, we

disagree.    The court recognized the current distance of approximately 30

minutes between the parties’ homes in York County, but found that Father’s

home is listed for sale, and that he intends to move to Dover, Pennsylvania,

to ensure A.Y.’s continued enrollment in the same school district. The record

supports the court’s findings. Thus, we discern no abuse of discretion by the

court in not weighing this factor in favor of either party when fashioning a

physical custody order if Mother does not relocate.

      Further, insofar as Mother argues that the court should have given

weighted consideration to Mother’s role as A.Y.’s primary physical caretaker

in recent years, we disagree.       The parties do not dispute that, for

approximately two years prior to the filing of Mother’s petition for

modification of the existing custody order and request for a relocation

hearing, Mother exercised primary physical custody despite the April 9, 2008

stipulated custody order where they agreed to shared physical custody. This

Court has explained that,

      The “primary caretaker doctrine,” as it has come to be known,
      had its genesis in Commonwealth ex rel. Jordan v. Jordan,
      448 A.2d 1113 (Pa. Super. 1982). In that case, this Court held
      that in cases involving an award of primary custody “where two
      natural parents are both fit, and the child is of tender years,
      the trial court must give positive consideration to the parent who

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      has been the primary caretaker.” Id. at 1115 (emphasis added)
      (citations omitted). . . . Thus, this doctrine was intended to be
      an additional consideration that would tip the scales in favor of
      the primary caretaker in a situation where the trial court deemed
      both parents to be fit to act as a primary custodian.

M.J.M. v. M.L.J., supra at 337-338 (footnote omitted).

      We further explained, however, that § 5328(a) “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[.]’”   M.J.M. v. M.L.J., supra at 338; citing 23 Pa.C.S.

§ 5328(a). This Court concluded that, based on the clear language of this

statute, “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.” M.J.M. v. M.L.J., supra at 338 (footnote

omitted). Thus, we concluded “the primary caretaker doctrine, insofar as it

required positive emphasis on the primary caretaker’s status, is no longer

viable.” Id. at 339.

      Nevertheless, this Court recognized that,

      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. §§ 5328(a)(3) (“The parental
      duties performed by each party on behalf of the 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.



                                      -19 -
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Id. As such, we stated that “a trial court will necessarily consider a parent’s

status as a primary caretaker implicitly as it considers the [§] 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

[§] (a)(16).” Id.

       Although the trial court in this case, in its analysis of § 5328(a)(3) and

(4),   recognized   that   Mother   takes   A.Y.   to   school,   to   most   doctor

appointments, and that she communicates with his teachers, we will not

interfere with the court’s determinations regarding the weight of this

evidence.    See A.V. v. S.T., supra at 820 (stating that, on issues of

credibility and weight of the evidence, we defer to the findings of the trial

court); see also M.J.M. v. M.L.J., supra at 339 (stating it is “within the

court’s purview as the finder of fact to determine which factors are most

salient and critical in each particular case”).

       In its opinion pursuant to Pa.R.A.P. 1925(a), the court explained that it

based its decision upon consideration of all of the custody factors, as

follows:

              Ultimately the Court found that, if Mother remained in York
       County, it would be in the best interest of [A.Y.] to spend equal
       time with both Mother and Father. Both parents are fit and
       willing to provide love and care for the child. Both parents
       evidenced a continuing desire for active involvement in the
       child’s life. The child recognized both parents as a source of
       security and love. Additionally, after agreeing to a Stipulated
       Order for Custody adopted on April 9, 2008, the parents have
       been able to work together regarding custody . . . for the past
       six (6) years without court intervention. Said Stipulated Order

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      awarded joint legal custody to Mother and Father and provided
      that custody was to be shared between Mother and Father.

Trial Court Opinion, 6/2/14, at 2. Upon review of the record evidence and

the foregoing case law, we discern no abuse of discretion by the trial court in

its weighted consideration of the custody factors and in concluding that, if

Mother does not relocate, it is in A.Y.’s best interest that the parties share

physical custody. Mother’s first issue on appeal fails.

      In her second issue, Mother claims that the trial court erred by

denying her request for relocation and granting Father primary physical

custody if she relocates to Millersville, Maryland, or more than 30 minutes

from Dover, Pennsylvania.     As the party proposing relocation, Mother has

the burden of proving that relocation will serve A.Y.’s best interest as set

forth under § 5337(h). See 23 Pa.C.S. § 5337(i)(1). In addition, “[e]ach

party has the burden of establishing the integrity of that party’s motives in

either seeking the relocation or seeking to prevent the relocation.”        23

Pa.C.S. § 5337(i)(2).

      Mother testified that she has lived in Dover, Pennsylvania since she

was thirteen years old, and in her present home for approximately five

years.3 N.T., 3/21/14, at 6. Mother’s two siblings, their spouses, and their

children live within five miles of her home in Dover. Id. at 62. In addition,

Mother testified that her parents, who reside in Idaho, plan to move into her

3
    The record reveals that Mother has a monthly mortgage payment in the
amount of $758 per month. The record does not indicate how Mother holds
title to the property, whether in her name only or otherwise.
                                      -21 -
J-A26001-14


home when she relocates to Maryland.4               Mother has another sibling, a

brother, who plans to return to the York County area.             Id. at 72.    Father

testified that most of his extended family lives in the York area. Id. at 216.

He testified that his grandparents, A.Y.’s paternal great-grandparents, are

particularly close to A.Y. Id. at 217-218.

         Mother testified with respect to the reason for her proposed relocation

to Millersville, Maryland, as follows:

         My fiancé has a company down there his family owns, and his
         parents are getting very old and need to retire. . . . They know
         [L.G.] needs to be there to take over. He needs to be closer.

         [L.G.] is involved somewhat now, but he needs to be involved on
         a daily basis. And when we had started to discuss this, I
         had . . . started to investigate the area and spend some time
         down there to see what it was like and then investigating the
         schools.

         . . . I didn’t see any negatives at all, just benefits, . . . for [L.G.]
         but for [A.Y.] and for me as far as being able to be financially
         taken care of because once [L.G.] takes this over, then his
         income will increase.

         There’s no mortgage . . . excellent school system. . . .

Id. at 16-17. Significantly, Mother testified she will relocate with L.G. and

her infant son even if the court denies her request with respect to A.Y. Id.

at 71.

         L.G., Mother’s fiancé, testified that his family owns “a family owned

business.”      Id. at 110.     He testified that he is “technically a marketing


4
  Mother testified that she will not sell the property, but that her parents will
assume her mortgage payment. N.T., 3/21/14, at 13, 61, 71.
                                          -22 -
J-A26001-14


manager [for the family business], but I do other things for them.        And

that’s where my salary comes from.” Id. L.G. testified that he intends to

take over running the company from his father.        Id. at 110-111.    L.G.

testified that his present income is approximately $45,000, and that he will

have a higher income when he takes over managing the family business.

Id. at 125, 131.    L.G. testified that the house he will be moving to in

Millersville, Maryland is presently owned by his mother, and that he will have

no cost associated with living in it.   Id. at 124.    L.G.’s mother, T.L.G.,

testified that she intends to sign over the title of her home in Millersville,

Maryland to L.G. without cost. N.T., 3/28/14, at 59. It is not clear from the

record whether T.L.G. will reside in the house with L.G. and Mother or not.

      Mother testified that the house in Millersville, Maryland is a driving

distance of approximately one and one-half hours from Father’s home. N.T.,

3/21/14, at 66.    Father testified that his employer, located in Frederick,

Maryland, is approximately 55 miles from Mother’s proposed relocation. Id.

at 198. Father testified on direct examination,

      Q. And so the fact that your job is in Maryland doesn’t make
      Millersville any more convenient than being in York County, does
      it?

      A. Well, if I were to leave my job and go [to Millersville] and
      then go home, I would be in the car for approximately two and a
      half hours barring any traffic.

Id. at 198-199.




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J-A26001-14


      With respect to § 5337(h)(3), i.e., the feasibility of preserving the

relationship between the non-relocating party and the child through suitable

custody arrangements, considering the logistics and financial circumstances

of the parties, the trial court found as follows:

      In light of the fact that Father’s days off are Tuesday and
      Sunday, Father has no continuous period available for custody of
      [A.Y.]. If, as Mother proposes, [A.Y.] is relocated to Maryland
      and Father is given weekend custody, Father would only have
      one full day off of work (Sunday) that he would be available to
      spend time with [A.Y.] during the school year. On Tuesday,
      Father’s other day off, [A.Y.] would spend the day in school. If
      Father wished to see [A.Y.] after school, although Mother’s
      proposed custody schedule does not provide for such Tuesday
      visits, Father would need to travel to Mother’s proposed
      residence in Millersville, Maryland, a roundtrip of approximately
      one hundred and eighty (180) miles from Father’s current home
      in Lewisberry, Pennsylvania, to obtain a few hours of custodial
      time with [A.Y.]. . . . The Court finds this proposed arrangement
      unreasonable and not conducive to Father being able to maintain
      a close and substantive relationship with [A.Y.]. . . .        As
      proposed by Mother should the relocation request be approved
      by the Court, [A.Y.]’s number of overnight visits with Father
      during a typical two-week period during the school year would
      decrease from seven (7) overnights to just two (2) overnights.

Trial Court Opinion, 4/14/14, at 11-12.       In its Rule 1925(a) opinion, the

court reasoned:

      With primary physical custody [during the school year], Father is
      able to spend quality time with [A.Y.] in the evenings during the
      week. On the majority of weekends when Father is working
      during the school year, Mother would have custody of [A.Y.].

            During the summer months, which Father testified as
      being his busiest months at work, Mother has custody of [A.Y.]
      for the majority of the week when Father is at work. Father has
      custody of [A.Y.] for shorter custody periods that correlate as
      closely as possible to Father’s work schedule. Overall, the


                                      -24 -
J-A26001-14


      schedule adopted by the Court optimizes the time [A.Y.] is able
      to spend with both parents if Mother relocates.

Trial Court Opinion, 6/2/14, at 3.

      Mother asserts that the court “erred in determining that it was the

proposed relocation that would hinder the relationship, rather than Father’s

chosen work schedule.” Mother’s brief at 31. She argues, “it is Father’s own

choices that hinder his ability to see [A.Y.] regularly, not the proposed

relocation.”   Id. at 35. We disagree. Mother’s testimony establishes that

Father has worked similar hours since she has known him. N.T., 3/21/14, at

24-26.    Moreover, it is Mother’s burden of proof to establish that the

proposed relocation is in A.Y.’s best interest pursuant to § 5337(i)(1). It is

not Father’s burden to prove that he cannot change his work schedule or his

employment to accommodate Mother’s proposed relocation.

      Further, Mother argues that the court abused its discretion by failing to

give proper weight to A.Y.’s preference.     We disagree.     A.Y. testified in

camera that Mother first spoke to him approximately two years ago about

going to a new school in Maryland.      N.T., 3/10/14, at 36.    A.Y. testified

regarding his preference on Mother relocating to Maryland and Father

remaining in Pennsylvania:

      [THE COURT]: Do you have a preference as to what you would
                   rather happen?

      [A]: Kind of both sides. But, I am good with my dad [living]
           here and my mom living there. It might be a little bit
           better in Maryland.


                                     -25 -
J-A26001-14


      [THE COURT]: What might be better in Maryland?

      [A]: Well, I think it would be better with my kind of week. My
           dad would pick me up later. I would get there about 7:00
           and have like an hour, hour and a half to spend there.

      [THE COURT]: So, you are thinking that the schedule between
                   your times with your mom and dad would be
                   better if you are in Maryland?

      [A]: Yes, might be a little bit better.

Id. at 37-38.

      A.Y. testified he wants to move to Maryland with Mother. Id. at 30.

Upon inquiry by the court regarding what he likes about the idea of moving

to Maryland, A.Y. testified, “I am just going to make new friends, I guess.

That might be pretty much it, I guess.”         Id. at 40.   However, A.Y. also

testified he will be sad to leave his friends in Dover. Id. at 36. Further, A.Y.

testified with respect to his extended maternal and paternal relatives in York

County, and that he enjoys seeing his family on both sides. Id. at 29.

      Upon review, A.Y.’s testimony revealed the influence of Mother on his

relocation preference.     Further, A.Y.’s testimony demonstrated that he

remained conflicted about the benefits of relocating. We discern no error by

the court, as discussed above, in placing “significantly less weight” on A.Y.’s

preference due to his age and Mother’s “apparent efforts to unduly influence

his testimony.” N.T., 4/14/14, at 20.

      Mother alleges that the court “erred in failing to give proper weight to

the negative impact on [A.Y.]’s emotional, physical and educational


                                       -26 -
J-A26001-14


development by granting Father primary custody if Mother relocates.”

Mother’s brief at 40. Specifically, Mother asserts that the court erred in its

custody award because A.Y. has a closer relationship with her and L.G. than

with Father and Stepmother.

      The court responded in its Rule 1925(a) opinion that A.Y. would be

best served if Mother remained in York County.             However, if Mother

relocates, the court found that,

      [A.Y.]’s emotional development would be most advanced by
      remaining in York County because many of [A.Y.]’s extended
      family members live in the area. On the other hand, aside from
      his Mother and half-sibling, no biological family members of
      [A.Y.] were identified at trial as living in Maryland. Additionally,
      [A.Y.] is comfortable and successful in his current school and has
      a network of friends both at school as well as in the community.
      Finally, and importantly, remaining in York County would
      preserve [A.Y.]’s ability to maintain an active relationship with
      his Father.

Trial Court Opinion, 6/2/14, at 4. Again, we discern no basis upon which to

disturb the court’s findings. In addition, we reject Mother’s further assertion

that “Father’s credibility regarding his true intention of relocating to [A.Y.]’s

school district is questionable.” Mother’s brief at 43. As stated above, it is

well-established that, on issues of credibility and weight of the evidence, we

defer to the findings of the trial court.5 See A.V. v. S.T., supra.


5
    In addition, Mother asserts that the court “erred in emphasizing the
presence of extended family members in [A.Y.]’s life as a reason to deny
relocation, when the same level of family involvement will be maintained if
[A.Y.] relocates.” Mother’s brief at 47. We reject Mother’s assertion
because there is ample testimonial evidence to support the court’s finding
that Mother’s proposed relocation “will clearly deny [A.Y.] the day-to-day
                                      -27 -
J-A26001-14


      Next, Mother avers that the trial court erred in concluding that

§ 5337(h)(7), concerning whether the relocation will enhance the general

quality of life for A.Y., weighs against the proposed relocation. Specifically,

Mother contends that court erred because it “failed to properly consider the

negative implications for Father’s financial circumstances and his family

home,” due to his intent to move to the Dover Area School District.

Mother’s brief at 51. She argues:

      Due to the likelihood that his home will be “upside down” Father
      testified that, if he must, he will be forced to do a “deed in lieu
      or short sale” to relocate to [A.Y.]’s school district. . . . [Father]
      also speculated that he will have to rent, just so he can live in
      the school district. This will be his only option due to being
      forced to short sell his home. Finally, this move may force
      [Stepmother] to return to work, thus rendering her unable to
      care for [A.Y.] while Father works, as well as their own child,
      [O.Y.]. [A.Y.] will be forced to care for himself or he will have to
      be enrolled in childcare, resulting in even more financial burden
      for Father.

Mother’s brief at 52 (citations to reproduced record omitted).           Mother’s

argument is without merit.

      In its Rule 1925(a) opinion, the trial court stated, “Father indicated

that if he could not sell his home prior to the start of the new school year, he

would rent a home in the Dover Area School District until his sold.            No

testimony was presented as to a negative impact on the child’s quality of life

in this instance.” Trial Court Opinion, 6/2/14, at 6. We agree.




emotional benefit of regular interactions with                extended     family
members . . . .” Trial Court Opinion, 4/14/14, at 10.
                                      -28 -
J-A26001-14


         Mother merely speculates that Father’s house would go to a short

sale.6    In addition, the record does not support Mother’s contention that

Stepmother may have to return to work due to selling the house and moving

to Dover, and, therefore, she would not be able to care for A.Y. while Father

is at work. Stepmother testified she intends to return to work, and she is

currently looking for a job, as described above, with traditional hours so that

she will be available to care for A.Y. and her daughter. N.T., 3/28/14, at 12.

Further, Stepmother’s testimony that she intends to return to work was

unrelated to the sale of their house.       In sum, Mother’s argument is mere

speculation, as the record is devoid of any evidence that the sale of Father’s

house and his move to Dover will have implications that negatively affect

A.Y.

         Indeed, we cannot find that the trial court abused its discretion in

finding that the proposed relocation will not enhance A.Y.’s quality of life.

The court reasoned as follows:



6
    Father testified as follows, in part:

         Q. Is the house upside down?

         A. It probably depends what we get for it.

         Q. So you do not expect to get any cash at the time of the sale?

         A. We’re hoping upon hope to break even.

N.T., 3/21/14, at 202.


                                        -29 -
J-A26001-14


      Aside from [Mother’s] personal opinion, there was no convincing
      evidence presented at trial to indicate that the school district in
      Maryland to which [A.Y.] would be enrolled is better than [A.Y.]’s
      current school district in York County. Certainly, transitioning
      schools in early adolescence is an emotionally stressful
      experience for any child. [A.Y.] will be leaving a school and
      peers with whom he is comfortable and starting over in a
      completely new environment. Additionally, [A.Y.] will be leaving
      his many extended family members that live in York County and
      the surrounding area. Overall, [A.Y.] will be leaving his school,
      friends, and family behind to move to Maryland where he has no
      current friends and, most importantly, no maternal or paternal
      family members other than his [m]other and half-brother.

Trial Court Opinion, 4/14/14, at 14-15.

      Finally, Mother argues that the court abused its discretion in failing to

consider Father’s financial motivation in opposing the proposed relocation,

i.e., not wanting to pay child support. In support of her argument, Mother

references the 2008 custody action between the parties, and her testimony

that Father filed the action in response to Mother filing a petition for child

support. See N.T., 3/21/14, at 15-16. Father testified he filed the custody

action in 2008 because “I felt that I was providing [A.Y.’s] primary care at

the time. . . .”    Id. at 191.    Further, Mother maintains that Father’s

“financial motivations keep him from obtaining a profession that would allow

him more time with [A.Y.]. . . . It is Father’s same concerns with finances[]

that have led him to oppose Mother’s request to relocate.” Mother’s brief at

53.

      We reject Mother’s arguments based upon our careful review of the

testimonial evidence.   The court accurately determined that “Father was


                                     -30 -
J-A26001-14


motivated by love for [A.Y.] and a strong desire to spend more time with the

child as opposed to any financial motivations.” Trial Court Opinion, 6/2/14,

at 6. As the record sustains that finding, we will not disturb it. A.V. v. S.T.,

supra at 820 (stating that, on issues of credibility and weight of the

evidence, we defer to the findings of the trial court).

      In this case, the trial court carefully analyzed each relocation factor,

and the testimonial evidence supports the court’s factual findings. The trial

court properly assessed the weighted consideration of each relocation factor.

The court’s determination that the proposed relocation is contrary to A.Y.’s

best interest is explained in its essence as follows:

      Although Mother’s proposed relocation may enhance her quality
      of life from a financial standpoint, the relocation is not prompted
      by any documented economic hardship suffered by Mother.
      Without economic hardship, the Court will not advance the
      financial well-being of Mother and her fiancé to the detriment of
      the relationship between Father and [A.Y.]. In essence, the
      Court was faced with the choice of Mother sustaining a long-
      distance relationship with her fiancé or [A.Y.] maintaining a
      long-distance relationship with his biological Father. . . . Any
      benefits [A.Y.] may receive as a result of the relocation are
      outweighed significantly by the benefits associated with [A.Y.]
      remaining in Dover.

Trial Court Opinion, 4/14/14, at 16.     As the certified record supports the

court’s rationale, we affirm the custody order that denies Mother’s relocation

request and outlines a custody arrangement that provides Father primary

physical custody of A.Y. if Mother relocates to Maryland, and orders shared

physical   custody   if   Mother   remains    within    thirty   miles   of   Dover,

Pennsylvania.

                                      -31 -
J-A26001-14


     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/8/2014




                          -32 -
