J-A05044-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    A.C.S.                                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    L.A.W.                                     :   No. 1507 WDA 2019

                 Appeal from the Order Entered October 3, 2019
     In the Court of Common Pleas of Westmoreland County Civil Division at
                              No(s): 2013-2018-D


BEFORE:      BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*

MEMORANDUM BY BOWES, J.:                                  FILED JULY 23, 2020

        A.C.S. (“Father”) appeals the October 3, 2019 order granting L.A.W.

(“Mother”) primary physical custody of their now three-year-old son, J.S., and

endorsing Mother’s relocation to Florida. We vacate the order and remand for

further proceedings.

        Mother and Father never married. J.S. was born in April 2017, and the

family continued to reside together for approximately one and one-half years.

On November 6, 2018, Father filed a complaint for primary physical custody

of J.S. The following day, hours after she was served with Father’s complaint,

Mother filed a petition for Protection From Abuse (“PFA”) alleging that she, but

not J.S., was a victim of abuse. N.T., 7/11/19, at 23; N.T., 8/5/19, at 27-28.


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*   Retired Senior Judge assigned to the Superior Court.
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The PFA court dismissed the PFA complaint, and nine weeks later it entered a

temporary order granting Mother physical custody of J.S in Pennsylvania. In

the interim, approximately six days before the court awarded Mother

temporary custody, Mother filed notice of her proposed relocation to Napels,

Florida. Following several days of trial, on October 3, 2019, the trial court

entered the above-referenced order awarding Mother primary physical

custody of J.S. and granting her petition to relocate to Florida. Notably, the

trial court did not make any custody determinations on the record. Instead,

having informed Father that it would consider an award of primary custody in

a separate proceeding, the court entered a custody order awarding Mother

primary custody of J.S. in Florida without discussing any of the custody or

relocation factors outlined in the Child Custody Law in § 5328(a) and §

5337(h), respectively.1

       Father’s timely appeal followed.          Father complied with Pa.R.A.P.

1925(a)(2)(i) by filing a Rule 1925(b) concise statement simultaneous with

the appeal, but due to the trial court’s delay in issuing its reasons for the




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1 Section 5328(d) of Child Custody Law directs, “The court shall delineate the
reasons for its decision on the record in open court or in a written opinion or
order.” Similarly, the Child Custody Law requires a trial court to consider all
of the § 5328(a) best interests factors when “ordering any form of custody.”
23 Pa.C.S. § 5328(a) (1)-(16). As we do not confront the trial court’s best-
interest analysis based on the incomplete evidence adduced during the
relocation hearings, we do not enumerate the statutory factors herein.

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custody decision, he filed the statement without the benefit of the trial court’s

explanation of the reasons for its decision.

      Father presents six issues for our review, which we reordered for ease

of disposition:

      1.    Whether the trial court committed an error of law and
      abused its discretion by concluding that it would be in the best
      interest of the child to relocate to Florida with Mother when the
      custody and relocation factors were not met[.]

      2.     Whether the trial court erred and abused its discretion by
      failing to schedule and obtain custodial evaluations when the trial
      court stated that it would do so and when the verified allegations,
      uncontroverted testimony[,] and evidence admitted the same[.]

      3.   Whether the trial court erred by failing to file an opinion
      which sets forth its rationale in a timely manner[.]

      4.    Whether the trial court erred and abused its discretion by
      granting custody and permitting relocation to a party who had a
      history of failing to comply with statutory rules, court orders[,]
      and had established a pattern of conduct to thwart the relationship
      of the child and Father . . . [.]

      5.    Whether the trial court exhibited prejudice towards Father
      throughout the proceedings, bias favoring women[,] and thereby
      abused its discretion[.]

      6.     Whether the court abused its discretion by making factual
      findings and conclusions of law without any support of record or
      in direct contradiction to testimony and evidence of record.

Father’s brief at 7-9.

      We review the child custody order according to the following scope and

standard of review:

      This Court reviews a custody determination for an abuse of
      discretion. In re K.D., 144 A.3d 145, 151 (Pa. Super. 2016). We
      will not find an abuse of discretion “merely because a reviewing

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      court would have reached a different conclusion.” Id. (citation
      omitted). Rather, “[a]ppellate courts will find a trial court abuses
      its discretion if, in reaching a conclusion, it overrides or misapplies
      the law, or the record shows that the trial court’s judgment was
      either manifestly unreasonable or the product of partiality,
      prejudice, bias or ill will.” Id.

R.L. v. M.A., 209 A.3d 391, 395 (Pa.Super.2019).

      As Father’s first two issues are dispositive, we address them at the

outset.   First, we review Father’s assertion that the trial court erred in

awarding primary physical custody to Mother after it advised Father that the

instant proceedings did not implicate his complaint for primary physical

custody. See Father’s brief at 46-47, 57-58. For the reasons that we explain

infra, the trial court erred in failing to address the competing petitions for

primary physical custody and relocation collectively before entering a final

custody order. See S.J.S. v. M.J.S., 76 A.3d 541, 549-50 (Pa.Super. 2013)

(concluding that trial court properly engaged in “dual analysis” of the custody

and relocation factors where there was no final custody order in place).

      As outlined in the foregoing procedural primer, Father initiated this

custody litigation on November 6, 2018, by filing a custody complaint. Having

assumed temporary physical custody of J.S., Mother eventually filed a

competing petition to relocate. The trial court scheduled several hearings to

address Mother’s petition. Throughout the proceedings, Father beseeched the

trial court to address his custody complaint in conjunction with, or prior to,

Mother’s petition to relocate to Florida. While the trial court acknowledged

that the matters were intertwined, over the course of the hearings, it denied

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Father’s requests, wavered about the precise nature of the proceedings, and

eventually ruled that it would confront the custody complaint separately. See

e.g., N.T., 7/11/19 at 169 (“I want to finish the relocation portion of this.

Then, we will in the appropriate way get into the custody matter.”).

      The following exchange between Father’s counsel and the trial court is

telling. It occurred after Mother argued that the court “could grant a relocation

at this point and still have further proceedings under the rules[.]” Id. at 167.

      [Father’s Counsel]: . . . Your Honor, I truly need to know . . . -
      Your Honor, stated on the record from day one [that] this is a
      relocation hearing. Is this now a relocation hearing still?

      The Court: Well, let me be as clear as I can. Yes, it is a relocation
      hearing and I want to complete all of the [relocation] factors, all
      of your testimony, and I think we are on Factor 6, anyway.

            ....

      The Court: All of the factors on the relocation. Then, I am willing
      to bifurcate the matter. You can file motions, petitions pretrial
      statements, et cetera, so I can accommodate you. Because I don’t
      want to surprise you in any way here. I honestly thought that
      these issues were so intertwined that it made common sense and
      it was logical to try to get all of this testimony in and decide the
      case. I thought that was in fairness to the clients and to both the
      mother and father.

      [Father’s Counsel]: We’re deciding a relocation hearing[?]

      The Court: To decide both issues to how –what’s the custody
      order. It is pretty hard to even -you really couldn’t, you can’t do
      a custody order until you decide where people are living so . . .
      But I am willing to say let’s stay on script. Finish the relocation
      proceeding. I am going to try to accommodate the mother’s side
      by not having this continued for the 60 days and I am going to try
      to accommodate you by getting this relocation proceeding
      completed before we start anything on the final custody order.


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              ....

       THE COURT: So I am going back. I want to accommodate
       [Mother] by finishing [her] relocation proceeding, and I want to
       accommodate [Father] by not scrambling you into a [custody2]
       proceeding if you are not ready for it.

Id. at 169-71. Thereafter, the trial court scheduled a conference with counsel

to coordinate the anticipated custody hearing. Id. at 172. Then, the court

transitioned back to the matter at hand, “Now, on the relocation proceeding,

can you estimate the amount of time we will need.” Id.

       The trial court’s initial statement that it would consider Father’s custody

complaint during the hearings and its post hoc analysis of the custody and

relocation factors in its overdue opinion are insufficient to overcome Father’s

claim of trial court error. While the trial court accurately stated that the issues

of primary custody and relocation were so intertwined that it was only logical

to try the cases jointly, it specifically advised Father that it would consider his

custody petition separately and in due course. Id. at 169-72.

       The prejudice to Father is palpable.      As Father was not litigating a

custody petition in light of the court’s ruling to defer it, he did not adduce

evidence specifically relevant to the best interest factors outlined § 5328(a).

He simply tailored an opposition to Mother’s petition to relocate, wherein she


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2The trial court misspoke by referencing a relocation proceeding rather than
a custody trial. Father’s counsel immediately corrected the misstatement,
which we corrected in the quotation.



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carried the sole burden of proof.3 Thus, the trial court’s belated consideration

of the § 5328(a) factors cannot cure the fact that the court denied Father the

opportunity to present evidence relevant to the specific issue of primary

custody.4    Phrased differently, by denying the parties the opportunity to

litigate their respective cases concerning primary physical custody, the court

failed to elicit evidence that related specifically to the § 5328(a) best-interest

factors. Indeed, it is apparent from the certified record that, when the trial

court finally addressed those factors in relation to Father’s custody complaint,

it did so retroactively by gleaning facts from whatever evidence happened to

be in the record.5


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3 The Child Custody Law defines relocation as “A change in a residence of the
child which significantly impairs the ability of a nonrelocating party to exercise
custodial rights.” 23 Pa.C.S. § 5322(a); see also C.M.K. v. K.E.M., 45 A.3d
417, 422 (Pa.Super. 2012). As the party proposing relocation, Mother would
typically bear the burden of proving relocation will serve the children’s best
interests. See 23 Pa.C.S. § 5337(i). However, in cases involving the
determination of primary physical custody, the parents stand on equal footing.
See 23 Pa.C.S. § 5327(a).

4 Significantly, because Father relied upon the court’s assertion that it would
not consider his custody complaint, it is of no moment that Father does not
assert that the trial court prohibited him from presenting specific evidence
relevant to that issue. The trial court decided a matter that, by its own
assertion, was not before it.

5 By entering a final order granting Mother primary physical custody of J.S.,
the court confronted the precise relief that Father requested in the complaint
and denied it. Thus, if we permitted the trial court’s order to stand, which we
do not, Father’s recourse would be to file a petition for modification of that
custody order pursuant to 23 Pa.C.S. § 5338.



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       Consistent with S.J.S., supra, the trial court erred in refusing to permit

Father the opportunity to present relevant evidence to address both the

relocation factors under § 5337(h), as well as the best interest factors

enumerated in § 5328(a). Accordingly, for all of the forgoing reasons, we

vacate the trial court order, reinstate Father’s custody complaint, and remand

the matter for a comprehensive custody trial, where both parties may present

evidence to determine the best interest of J.S. pursuant to § 5328(a).6 Mindful

that Mother exercised temporary physical custody of J.S. in Pennsylvania prior

to the entry of the trial court’s October 3, 2019 final order, which we vacate

herein, we direct the trial court to hold a hearing within fifteen days of this

memorandum to determine the feasibility of the immediate return to the

status quo in Pennsylvania pending the completion of the custody proceedings

in light of the COVID-19 pandemic. Specifically, the court should consider

the earliest anticipated date for completing the custody trial, Mother’s financial

wherewithal, and her housing needs and employment opportunities in

Pennsylvania.




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6 We have explained, “where neither Mother nor Father is relocating and only
the children stand to move to a significantly distant location, the relocation
provisions . . . are not per se triggered[.]” D.K. v. S.P.K., 102 A.3d 467, 468
(Pa. Super. 2014). However, “in such cases, the trial court shall consider the
relevant factors set forth in [S]ection 5337(h) insofar as they impact the final
determination of the best interests of the child.” Id.


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      Next, we address Father’s contention that the trial court failed to order

an anticipated custody evaluation pursuant to Pa.R.C.P. 1915.8(a), which

provides that “[t]he court may order the child(ren) and/or any party to submit

to and fully participate in an evaluation by an appropriate expert or experts.”

In rejecting Father’s assertion, the trial court recounted its discussion of this

issue during the hearing and concluded that Farther neglected to request a

custody evaluation. The court stated in its Rule 1925(a) opinion,

      There was no abuse of discretion in failing to order custody
      evaluations, as no motion was made for such evaluations. They
      were suggested by the court, but no motion was made by either
      party.

      Father’s counsel made an oral argument that Mother (only) have
      a “psychiatric” evaluation. This request was denied, as there was
      no basis for one. (There were no suggestions that Mother had any
      mental health issues, other than what may have been interpreted
      as fatigue or a postpartum issue following childbirth; and Father
      offered no factual basis for a court-ordered psychiatric
      evaluation). Even later, after exhaustive testimony by Father as
      to the faults and deficiencies of Mother, there appeared no reason
      to believe there was any basis for such an evaluation.

      The parties were actually advised that a custody evaluation would
      be helpful to the court, but neither party pursued custody
      evaluations.

Trial Court Opinion, 11/13/19, at 2.

      The certified record belies the trial court’s hindsight. Indeed, in utter

contrast to the trial court’s recitation, the trial court stated on the record that

it would order a custody evaluation, which it was authorized to order sua

sponte pursuant to Rule 1915.8. N.T., 4/26/19, at 23. Specifically, the trial

court advised, “So I’m going to make an order and I’m going to order that we

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have custody evaluations.” Id. Furthermore, the insinuation that the trial

court’s remarks were simply suggestions or the court’s reflection on a potential

course of action is misleading. We highlight that, after making the foregoing

ruling in open court, the trial court subsequently confirmed, “I’ll make a ruling

on how it is paid for.” Id. at 24. Thus, the trial court did not simply invite

the parties to file a request for the custody evaluation. Nor did it condition

the custody evaluation upon receiving a subsequent request from either party.

Since the trial court announced in open court its intent to order the custody

evaluation, as authorized by Rule 1915.8, the court’s rejection of Father’s

appellate argument because he did not reiterate a request for an evaluation

is erroneous, particularly when the court subsequently advised the parties that

it was deferring its decision on primary custody until a subsequent

proceeding.7 See e.g., N.T., 7/11/19 at 169-72. For these reasons, the trial

court erred, and upon remand, the trial court shall order the promised custody

evaluation and admit the resultant report into evidence during the

comprehensive custody trial.

       Accordingly, for all of these reasons, we vacate the custody order and

remand for further proceedings consistent with this writing, including (1) an


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7 In light of the trial court’s indication that it would order custody evaluations,
and its express deferral of the issue relating to primary physical custody to a
later proceeding, we reject the insinuation that Father was at fault for
neglecting to revisit the request for custody evaluations during the presumed
relocation proceedings.


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expedited hearing to address the impact of the COVID-19 pandemic on J.S.’s

immediate return to Pennsylvania; and (2) a comprehensive custody hearing,

wherein both parties can adduce evidence relevant to an award of primary

physical custody, either with Father in Pennsylvania or Mother in Florida.

      Order vacated. Case remanded. Jurisdiction relinquished.

      President Judge Emeritus Bender joins the memorandum.

      Judge Pellegrini files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/23/2020




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