J-S35030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    C.G.                                       :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
    v.                                         :
                                               :
    K.N.                                       :
                                               :
                       Appellant               :
                                               :
                                               :   No. 215 WDA 2017

                    Appeal from the Order Dated January 3, 2017
                    In the Court of Common Pleas of Erie County
                         Civil Division at No(s): 10901-2016


BEFORE:        LAZARUS, RANSOM, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY RANSOM, J.:                                  FILED JULY 26, 2017

           K.N. (“Mother”) appeals the order dated and entered January 3, 2017,

denying her Complaint for Modification of Custody concerning her two male

children with C.G. (“Father”): A.G., born in October of 2002, and R.G., born

in May of 2005, (collectively, the “Children”), and finding it in the best

interest of the Children to continue in effect the Alaskan Parenting

Agreement signed April 4, 2007, and the Custody Consent Agreement filed

June 7, 2016, as amended in the trial court’s January 3, 2017 order to

provide Mother with additional partial physical custody of the Children at her




____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S35030-17



home in Alaska during their summer vacation, increasing her custodial time

to eight weeks.1 We affirm.
      The trial court set forth the factual background and procedural history

of the appeal as follows.

              On October 18, 2016, [M]other filed a Complaint for
       Modification of Custody Order seeking to relocate the children to
       Alaska.1 This matter was scheduled for a custody trial. At the
       December 13, 2016, de novo hearing, the [c]ourt received
       testimony from [M]other, [F]ather, [M]other’s husband,
       [P]aternal [G]randfather, the [C]hildren’s scoutmaster[, . . .]
       [their] pastor, [F]ather’s paramour, and spoke with the
       [C]hildren in chambers.

                                     DISCUSSION

             Mother seeks an award of relocation. Mother resides in
       Valdez, Alaska with her husband and twenty (20)[-]year[-]old
       daughter.    Mother is employed full-time during the week.
       Maternal [A]unt and [M]other’s husband are available to care for
       [the] [C]hildren when [M]other is working.                Mother’s
       neighborhood is a safe residential community within walking
       distance of downtown Valdez. The [C]hildren have friends in
       [M]other’s neighborhood.         Activities such as wrestling,
       basketball, football, and Boy Scouts are available through the
       school and the community. When in [M]other’s custody, the
       [C]hildren participate in outdoor activities. Mother would ensure
       the [C]hildren attend church. A family clinic is located nearby to
       meet the [C]hildren’s medical needs.

            When in [M]other’s custody[,] the [C]hildren perform
       chores and complete their summer school work. Mother’s school
____________________________________________


1
  Although Mother used the term complaint, her request was actually a
petition for modification of the existing custody order to allow her primary
physical custody of the Children at her home in Alaska during the school
year, which would require the Children to relocate to Alaska. The trial court,
thus, treated the modification petition as also seeking relocation of the
Children without Mother, as she already resides in Alaska.



                                           -2-
J-S35030-17


     district is small and highly[-]rated with many sports and
     academic opportunities. Mother and [the] [C]hildren see each
     other during the summer school vacation, every other winter
     break, and during [M]other’s trips to Erie County, PA. Mother
     pays for the [C]hildren’s transportation to Alaska and proposes
     [F]ather pay for transportation to Erie County if the [C]hildren
     relocate to Alaska. In April 2016, [M]other filed a PFA [Petition
     for Protection From Abuse] on behalf of the [C]hildren against
     [F]ather asserting [F]ather physically disciplined the [C]hildren.
     The final PFA was denied by Judge Robert Sambroak on April 5,
     2016.

           Mother disciplines [the] [C]hildren by putting them in a
     timeout, sending them to their rooms, and taking away their
     electronics. Mother wants [the] [C]hildren to have a relationship
     with [F]ather. The [C]hildren keep [M]other informed about
     their progress in school. Mother and [F]ather have difficulty
     communicating. Mother asserts the [C]hildren have expressed a
     desire to relocate to Alaska, [F]ather has had primary custody
     for nine years, and there is no reason the [C]hildren cannot
     reside primarily with [M]other.

           Father and [the] [C]hildren have resided in Erie County
     since 2007 by consent of the parties. Father is employed full-
     time Monday through Friday. [The] [C]hildren have their own
     bedrooms in [F]ather’s home and are comfortable there.
     Father’s residence is located in a rural area where the [C]hildren
     can ride their bikes. Father has breakfast with the [C]hildren
     before school and the [C]hildren get off the school bus at
     [P]aternal [G]randparents’ residence at 3:00 p.m.         Paternal
     [G]randparents assist with homework. Father also reviews and
     discusses homework with the [C]hildren. Paternal [A]unt and
     Uncle and [G]reat[-][A]unt are also available to assist with
     childcare. Father has some extended family in Alaska.

           The [C]hildren attend the Wattsburg Area School District,
     located approximately two and one-half (2½) miles from
     [F]ather’s residence. Father acknowledges [A.G.] has struggled
     with completing school work while [R.G.] has always done well in
     school. [A.G.] is working on improving his school performance.
     Father is in contact with the [C]hildren’s teachers. Father denies
     any disciplinary concerns regarding the [C]hildren.         Father
     admits [A.G.] has been suspended from school twice, including
     once last year. The [C]hildren have friends at school whom [sic]

                                   -3-
J-S35030-17


     they occasionally see outside of school. [R.G.] participates in
     basketball and [A.G.] participates in wrestling and has signed up
     for track and field. The [C]hildren participate in Boy Scouts
     where they both hold leadership positions. The [C]hildren play
     flag football through the YMCA, go skiing, camping, take road
     trips, and attend church regularly.      Father’s paramour has
     accompanied [F]ather and [the] [C]hildren on road trips. Mother
     and [the] [C]hildren speak regularly but do not use social media.
     Mother consistently sees the [C]hildren approximately ten to
     twelve weeks each year. Father does not prevent children from
     contacting [M]other. Father and [M]other communicate through
     text message and email.

            Father does not believe relocation is in the [C]hildren’s
     best interests. Valdez, Alaska is a small, isolated community.
     Father wants the Children to have a relationship with [M]other
     and to keep the same custody schedule. Father acknowledges
     using physical discipline as a last resort and does utilize other
     forms of punishment. The [C]hildren have chores and take care
     of family pets. Father admits to disparaging [M]other in front of
     the [C]hildren but denies alienating the [C]hildren from
     [M]other.       The [C]hildren’s healthcare provider, dentist,
     orthodontist, and family counselor, whom [F]ather and
     [C]hildren see every three weeks, are located nearby. Father
     acknowledges the [C]hildren are comfortable in Alaska and many
     activities are available there.

           [A.G.] is fourteen (14) years old, attends eighth grade at
     Seneca High School, and expressed a desire to relocate to
     Alaska.    [A.G.] requests to reside primarily with [M]other
     because he has resided with [F]ather for nine (9) years. [A.G.]
     does not always get along with [F]ather but their relationship is
     improving. Father speaks disparagingly about [M]other in front
     of him. Father has not physically punished [A.G.] in the past
     year. Father disciplines [A.G.] by taking away his electronics.
     [A.G.] participates in sports such as wrestling and flag football.
     [A.G.] acknowledges struggling in school but his school
     performance is improving. [A.G.] has friends nearby. [A.G.]
     enjoys science and writing. [A.G.] participates in activities with
     [F]ather such as snowmobiling, camping, hunting, and four-
     wheeling.

          [R.G.] is eleven (11) years old, attends sixth grade at
     Wattsburg Area Middle School, and expressed a desire to reside

                                   -4-
J-S35030-17


     primarily with [M]other. [R.G.] enjoys gym class, has friends at
     school, and earns good grades. [R.G.] participates in basketball
     through school and football through the YMCA. [R.G.] enjoys
     four-wheeling. Father does not physically punish [R.G.]. [R.G.]
     enjoys the time he spends with [M]other. When in [M]other’s
     [c]ustody[,] [R.G.] rides dirt bikes and goes skate boarding and
     camping. [R.G.] gets along well with [M]other although they
     sometimes yell at each other. [R.G.] gets along with [M]other’s
     husband and [with his] twenty (20)[-]year[-]old half-sister.
     Maternal [A]unt and [his] two (2)[-]year[-]old cousin, with
     whom he has a positive relationship, also reside in Valdez,
     Alaska. [R.G.] is not concerned about changing schools or with
     not seeing his friends who reside in Erie County.          [R.G.]
     expressed a preference to spend [the] summer in Erie County.

            The [C]hildren were both well-spoken and presented as
     sufficiently mature for their ages. The [C]hildren have their own
     bedrooms and family pets at each parents’ residence. The
     [C]hildren expressed a preference to reside together and to
     continue participating in outdoor activities. The [C]hildren have
     a positive sibling relationship.

           Mother’s husband is employed full-time, has three adult
     children, and has good relationships with [A.G.] and [R.G.].
     Mother’s husband and the [C]hildren perform farm work together
     and ride motorbikes and four-wheelers.         Mother’s husband
     expects the [C]hildren to be respectful, to perform chores, and
     to clean their rooms. The [C]hildren receive an allowance.
     Mother’s husband acknowledges the [C]hildren have difficulty
     adjusting to the different households. Mother disciplines the
     [C]hildren by discussing their behavior with them and taking
     away privileges. The [C]hildren have requested to relocate to
     Alaska. Mother’s husband states their home is supportive[,] and
     he and [M]other will provide for the [C]hildren’s needs. Paternal
     [G]randfather sees the [C]hildren every day after school and on
     days when the [C]hildren do not have school. Father picks up
     the [C]hildren from [P]aternal [G]randparents' home at 5:45
     p.m. At [P]aternal [G]randparents' home[,] the [C]hildren play,
     eat snacks, do homework, and help around the house. [The]
     Children eat dinner at [P]aternal [G]randparents’ residence on
     Tuesdays before Boy Scouts. [The] Children attend church with
     paternal grandparents and father.       Paternal [G]randparents
     attend the [C]hildren's extracurricular events and take the
     [C]hildren hunting and shopping. Paternal [G]randparents'

                                   -5-
J-S35030-17


      extended family resides nearby and gets along with the
      [C]hildren.

             The [C]hildren’s scoutmaster testified [F]ather is an
      assistant scoutmaster and the [C]hildren both hold leadership
      positions. The [C]hildren are involved in many activities; they
      get along with the other [B]oy [S]couts, and enjoy their
      participation. The [C]hildren’s pastor testified [F]ather and the
      [C]hildren are active in their church and the [C]hildren appear
      happy to attend church with [F]ather.          Father’s paramour
      testified she and [F]ather attend the [C]hildren’s activities and
      go on family trips. Father’s paramour is comfortable around the
      [C]hildren and will not interfere with the [C]hildren’s relationship
      with their mother.
      ___________________________________________________
      1
        Pursuant to the Alaskan Parenting Agreement signed April 4,
      2007, and the Custody Consent Agreement filed June 7, 2016,
      [the] parents share legal custody. Father has primary custody
      and [M]other has periods of partial custody for six (6) weeks in
      the summer and alternating school breaks.

Trial Court Opinion, 1/3/17, at 1-6 (footnote in original).

      On January 3, 2017, the trial court entered the order denying Mother’s

petition, finding it in the best interest of the Children to continue in effect

the Alaskan Parenting Agreement signed April 4, 2007, and the Custody

Consent Agreement filed June 7, 2016, as amended in the trial court’s

January 3, 2017 order to provide Mother with additional partial physical

custody of the Children during their summer vacation. On February 1, 2017,

Mother timely filed a notice of appeal, along with a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

      In her brief on appeal, Mother raises the following issues:




                                     -6-
J-S35030-17


       A. Did the [trial] court err in denying the appellant’s [Mother’s]
       request to relocate the Children in this case to her home in
       Alaska?

       B. Did the [trial] court err in giving insufficient weight to the
       evidence of abuse in this case?

       C. Did the [trial] court err in giving insufficient weight to the
       Children’s well-reasoned preference?

Mother’s Brief, at 3-4 (unpaginated).2

       In custody cases under the Child Custody Act, (“the Act”), 23 Pa.C.S.

§ 5321-5340, our 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.

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

       We have stated:

       [t]he discretion that a trial court employs in custody matters
       should be accorded the utmost respect, given the special nature
       of the proceeding and the lasting impact the result will have on
       the lives of the parties concerned. Indeed, the knowledge
____________________________________________


2
 Mother framed her issues somewhat differently in her concise statement,
but we find that she preserved them for our review.



                                           -7-
J-S35030-17


      gained by a trial court in observing witnesses in a custody
      proceeding cannot adequately be imparted to an appellate court
      by a printed record.

Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (quoting

Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)).

      In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), we

stated the following regarding an abuse of discretion standard.

      Although we are given a broad power of review, we are
      constrained by an abuse of discretion standard when evaluating
      the court’s order. An abuse of discretion is not merely an error
      of judgment, but if the court’s judgment is manifestly
      unreasonable as shown by the evidence of record, discretion is
      abused. An abuse of discretion is also made out where it
      appears from a review of the record that there is no evidence to
      support the court’s findings or that there is a capricious disbelief
      of evidence.

Id. at 18-19 (quotation and citations omitted).

      Regarding the definition of an abuse of discretion, this Court has

stated: “[a]n abuse of discretion is not merely an error of judgment; if, in

reaching a conclusion, the court overrides or misapplies the law, or the

judgment exercised is shown by the record to be either manifestly

unreasonable or the product of partiality, prejudice, bias or ill will, discretion

has been abused.” Bulgarelli v. Bulgarelli, 934 A.2d 107, 111 (Pa. Super.

2007) (quotation omitted).

      With any custody case decided under the Act, the paramount concern

is the best interests of the child.         See 23 Pa.C.S. §§ 5328, 5338.

      Section 5323 of the Act provides for the following types of awards:


                                      -8-
J-S35030-17


      (a) Types of award.—After considering the factors set forth in
      section 5328 (relating to factors to consider when awarding
      custody), the court may award any of the following types of
      custody if it in the best interest of the child:

          (1) Shared physical custody.

          (2) Primary physical custody.

          (3) Partial physical custody.

          (4) Sole physical custody.

          (5) Supervised physical custody.

          (6) Shared legal custody.

          (7) Sole legal custody.

23 Pa.C.S. § 5323.

      Section 5338 of the Act provides that, upon petition, a trial court may

modify a custody order if it serves the best interests of the child. 23 Pa.C.S.

§ 5338.    Section 5328(a) sets forth the best interest factors that the trial

court must consider. See E.D. v. M.P., 33 A.3d 73, 80-81, n.2 (Pa. Super.

2011).

      Section 5328(a) of the Act provides as follows.

      § 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.



                                       -9-
J-S35030-17


       (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 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.



                                   - 10 -
J-S35030-17


         (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.

      In making a decision on whether to modify an existing custody order,

the court must consider all of the section 5328(a) factors. J.R.M. v. J.E.A.,

33 A.3d 647, 652 (Pa. Super. 2011). Our case law is clear that the amount

of weight that a court gives to any one factor is almost entirely within its

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

(citing A.D. v. M.A.B., 989 A.2d 32, 35–36 (Pa. Super. 2010)) (“It is within

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

most salient and critical in each particular case.”). The one exception is that

trial courts must give weighted consideration to those factors which affect

the safety of the child. See 23 Pa.C.S.A. § 5328(a).

      Where a request for relocation of the subject child along with a parent

is involved, the trial court must consider the following ten relocation factors

set forth within section 5337(h) of the Act:

      (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.

                                    - 11 -
J-S35030-17



         (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). See E.D. at 81-82 (“Section 5337(h) mandates that

the trial court shall consider all of the factors listed therein, giving weighted

consideration to those factors affecting the safety of the child.”); see also

D.K. v. S.P.K., 102 A.3d 467, 477-78 (Pa. Super. 2014) (holding that trial

                                     - 12 -
J-S35030-17


court is to consider the section 5337(h) factors only where a parent is

relocating with child).

      The Court stated in D.K., “where neither parent is relocating, and only

the custodial rights of the parties are at issue, section 5337 of the Child

Custody Act is not per se triggered.” D.K., 102 A.3d 474. However, where

“the children stand to move a significant distance, trial courts should still

consider the relevant factors of section 5337(h) in their section 5328(a) best

interests analysis.” Id. at 476.

      Section 5337(i) provides that the “party proposing the relocation has

the burden of establishing that the relocation will serve the best interest of

the child as shown under the factors set forth in subsection (h),” and that

each party “has the burden of establishing the integrity of that party’s

motives in either seeking relocation or seeking to prevent the relocation.”

23 Pa.C.S. § 5337(i).

      Further, we have explained as follows:

      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(a) 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). . . .

      In expressing the reasons for its decision, “there is no required
      amount of detail for the trial court’s explanation; all that is
      required is that the enumerated factors are considered and that
      the custody decision is based on those considerations.” M.J.M.
      v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013), appeal denied,


                                     - 13 -
J-S35030-17


      [620 Pa. 710], 68 A.3d 909 (2013). A court’s explanation of
      reasons for its decision, which adequately addresses the relevant
      factors, complies with Section 5323(d). Id.

A.V. v. S.T., 87 A.3d 818, 822-823 (Pa. Super. 2014).

      Similarly, with regard to relocation, in A.M.S. v. M.R.C., 70 A.3d 830

(Pa. Super. 2013), we stated:

      [W]e conclude here that sections 5323(d) and 5328 require the
      trial court to set forth its ratio decidendi at or near the time it
      issues its decision in a custody proceeding. We have held that,
      because the best interests of the child are the paramount
      concern of any custody case, the trial court must address the
      sixteen best interest factors of section 5328(a) and the ten
      relocation factors of section 5337(h). B.K.M. v. J.A.M., 2012 PA
      Super 156, 50 A.3d 168, 172-75 (Pa. Super. 2012) (finding the
      trial court erred in failing to consider all section 5328(a) and
      section 5337(h) factors). Therefore, by logical necessity, today
      we emphasize that our holding in C.B. (i.e., that section 5323(d)
      requires the trial court to delineate its reasoning at or near the
      time of its decision) extends to cases that involve both custody
      and relocation pursuant to section 5337.

A.M.S., 70 A.3d at 835.

      Additionally, in A.M.S., we held that, with regard to relocation:

      Section 5337(h) mandates that the trial court shall consider all
      of the factors listed therein, giving weighted consideration to
      those factors affecting the safety of the child.

A.M.S., 70 A.3d at 836 (citations omitted) (emphasis in original).

      Moreover, “[w]hen a custody dispute involves a request by a party to

relocate, we have explained ‘there is no black letter formula that easily

resolves relocation disputes; rather, custody disputes are delicate issues that

must be handled on a case-by-case basis.’” C.M.K. v. K.E.M., 45 A.3d 417,




                                    - 14 -
J-S35030-17


421 (Pa. Super. 2012) quoting Baldwin v. Baldwin, 710 A.2d 610, 614

(Pa. Super. 1998)).

      In its Opinion, the trial court stated the following with regard to the

section 5328(a) best interest factors.

             In the instant case, [M]other seeks a modification which
      entails a change to an award of custody. Thus, the [c]ourt will
      address each of the factors as listed at 23 Pa.C.S. § 5328(a) in
      seriatim.

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

             The parties stand on equal footing regarding this factor.
      Both parents testified they want the [C]hildren to have a
      relationship with the other. While in [F]ather’s custody, the
      [C]hildren speak regularly with [M]other via telephone. The
      parties are able to communicate via email and text message.
      Although tension exists between the parties, neither parent
      interferes with the [C]hildren’s communication and contact with
      the other parent.

      (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 children or an abused party
      and which party can better provide adequate physical
      safeguards and supervision of the children.

      Although this factor appears to favor [M]other, under the
      circumstances it is neutral. In April 2016, [M]other filed a PFA
      on behalf of the [C]hildren against [F]ather alleging [F]ather
      physically disciplined the [C]hildren. The final PFA was denied
      by Judge Robert Sambroak on April 5, 2016. Father admits to
      physically disciplining [A.G.] as a last resort. Father utilizes
      other disciplinary means such as taking away electronics. [A.G.]
      informed the [c]ourt that [F]ather has not utilized physical
      discipline against him this year. No evidence of abuse by
      [M]other or a member of [M]other’s household was introduced at
      trial.


                                    - 15 -
J-S35030-17


     (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).

           This factor does not apply. There were no allegations of
     involvement with protective services.

     (3) The parental duties performed by each party on behalf
     of the children.

            This factor favors [F]ather. The [C]hildren have resided
     primarily with [F]ather in Erie County for nine years. The
     [C]hildren attend school in [F]ather’s school district and
     participate in sports such as football, wrestling, and basketball
     through school and the YMCA. The [C]hildren and [F]ather
     participate in Boy Scouts where both [C]hildren hold leadership
     positions.     Father, [P]aternal [G]randparents, and [the]
     [C]hildren regularly attend church together. The [C]hildren's
     healthcare provider, dentist, orthodontist, and family counselor,
     whom [F]ather and [the] [C]hildren see every three weeks, are
     all located in Erie County.      Father is in contact with the
     [C]hildren’s teachers and ensures the [C]hildren complete their
     homework. Father utilizes [P]aternal [G]randparents to care for
     [the] [C]hildren after school and on days when the [C]hildren do
     not have school. [A.G.’s] school performance was slipping but is
     now improving.

           Mother also duly performs parental duties when [the]
     [C]hildren are in her custody. The [C]hildren keep [M]other
     informed of their schooling.     Mother ensures the [C]hildren
     complete their summer school work and are engaged in activities
     such as riding motorbikes, four-wheeling, and helping mother’s
     husband on his farm. Mother’s school district is highly rated and
     offers many sports and academic opportunities. Mother would
     ensure [the] [C]hildren attend church. A family health care
     center is located nearby to meet the [C]hildren’s medical needs.

           Relocation to Alaska would necessitate changing the
     [C]hildren’s school and healthcare providers. Since [F]ather has
     ensured for several years that the [C]hildren complete their
     homework, receive necessary healthcare, including counseling,
     and participate in many activities, the [c]ourt finds it is in the
     [C]hildren’s best interests to reside primarily with [F]ather
     during the school year.

                                   - 16 -
J-S35030-17



     (4) The need for stability and continuity in the children's
     education, family life and community life.

            This factor favors [F]ather. The [C]hildren have resided
     with [F]ather in Erie County for nine years. The [C]hildren get
     off the school bus at [P]aternal [G]randparents’ residence daily
     where they play, complete homework, eat snacks, and help
     around the house. [R.G.] earns good grades, enjoys gym, and
     has friends at school. [A.G.’s] school performance is improving;
     he enjoys science and writing, and has friends nearby. Father
     participates with [the] [C]hildren in Boy Scouts, where both
     [C]hildren hold leadership positions.         Father, [P]aternal
     [G]randparents, and [the] [C]hildren attend church together
     regularly. The [C]hildren participate in sports through school
     and the YMCA. The [C]hildren participate in outdoor activities
     with [F]ather such as snowmobiling, four-wheeling, camping,
     and hunting.      Father takes [the] [C]hildren on road trips.
     Paternal [A]unt, [U]ncle, and [G]reat-[A]unt also reside nearby
     and have positive relationships with [the] [C]hildren.

            When in [M]other’s custody[,] the [C]hildren also
     participate in outdoor activities such as riding dirt bikes,
     camping, four-wheeling, and skateboarding.     The [C]hildren
     perform farm work with [M]other’s husband. If the [C]hildren
     relocate to Alaska, activities such as church and Boy Scouts
     would be available. The [C]hildren get along with their twenty
     (20)[-]year[-]old half-sister, [M]aternal [A]unt and two
     (2)[-]year[-]old cousin. The [C]hildren enjoy the time they
     spend with both parents.

            The [c]ourt finds it is in the [C]hildren’s best interests to
     reside with [F]ather during the school year as the [C]hildren are
     doing well in school and enjoy many activities through their
     school and the YMCA. The [C]hildren enjoy a close positive
     relationship with their paternal grandparents whom they see
     daily. The [c]ourt acknowledges the [C]hildren expressed a
     preference to reside with [M]other in Alaska and have positive
     relationships with [M]other, [M]other’s husband, and extended
     family. However, the [c]ourt finds it will promote stability in the
     [C]hildren’s education, family life, and community life to reside
     primarily with [F]ather during the school year.

     (5) The availability of extended family.

                                    - 17 -
J-S35030-17



            This factor favors [F]ather. Paternal [G]randparents
     provide care for the [C]hildren daily and have close, positive
     relationships with them. The [C]hildren get off the school bus at
     [P]aternal [G]randparents’ residence. The [C]hildren eat snacks,
     complete homework, and help around the house. Father picks
     [C]hildren up from [P]aternal [G]randparents’ residence at 5:45
     p.m. On Tuesdays, the [C]hildren eat dinner at [P]aternal
     [G]randparents’ residence before attending Boy Scouts. Paternal
     [G]randparents attend the [C]hildren’s extracurricular activities.
     [The] Children regularly attend church with [F]ather and
     [P]aternal [G]randparents.     [P]aternal [A]unt, [U]ncle, and
     [G]reat-[A]unt also reside nearby and are available to care for
     the [C]hildren.

            When in [M]other’s custody, [M]aternal [A]unt is available
     to care for [the] [C]hildren. The [C]hildren have close, positive
     relationships with their extended family members.

     (6) The children’s sibling relationships.

           This factor favors [M]other.      The [C]hildren’s twenty
     (20)[-]year[-]old half[-]sister resides with [M]other.      The
     [C]hildren have a close positive relationship with her and with
     each other. Father has no other children.

     (7) The well-reasoned preference of the children, based
     on the children’s maturity and judgment.

            This factor favors [M]other. The [C]hildren expressed a
     strong preference to reside with [M]other. The [C]hildren enjoy
     the time they spend with [M]other in Alaska and have resided
     primarily with [F]ather for nine (9) years. The [C]hildren get
     along well with [M]other, [M]other’s husband, their twenty
     (20)[-]year[-]old half-sister, and [M]aternal [A]unt and two
     (2)[-]year[-]old cousin. The [C]hildren help [M]other’s husband
     on his farm and go hunting, camping, and four-wheeling. The
     [C]hildren were not concerned about attending a new school and
     already have friends in mother’s neighborhood. The [C]hildren’s
     activities in Erie County, such as church and Boy Scouts, are also
     available in Alaska.

          The [c]ourt found the [C]hildren to be well[-]spoken and
     reasonably mature for their ages.     Although the [C]hildren

                                   - 18 -
J-S35030-17


     expressed a strong preference to relocate to Alaska, the [c]ourt
     finds it is in the [C]hildren's best interests to reside primarily
     with [F]ather during the school year to promote consistency in
     their education and family relationships.

     (8) The attempts of a parent to turn the children against
     the other parent, except in cases of domestic violence
     where reasonable safety measures are necessary to
     protect the children from harm.

           This factor is neutral. Although conflict exists between the
     parties, and [F]ather admits to disparaging [M]other in front of
     the [C]hildren, there is no evidence either party attempted to
     turn the [C]hildren against the other.

     (9) Which party is more likely to maintain a loving, stable,
     consistent and nurturing relationship with the children
     adequate for the children’s emotional needs.

            This factor is neutral.  Both parties are dedicated to
     maintaining a loving, stable, consistent, and nurturing
     relationship with the [C]hildren adequate for the [C]hildren's
     needs.

     (10) Which party is more likely to attend to the daily
     physical, emotional, developmental, educational and
     special needs of the children.

           This factor is neutral. Both parents are equally dedicated
     to attending to the [C]hildren’s daily physical, emotional,
     developmental, educational, and special needs.

     (11) The proximity of the residences of the parties.

          This factor favors neither party. Father resides in Erie
     County, Pennsylvania, and [M]other resides in Valdez, Alaska,
     approximately four thousand (4,000) miles apart.

     (12) Each party’s availability to care for the children or
     ability to make appropriate child-care arrangements.

           This factor is neutral. Father is employed full-time and is
     available to care for the [C]hildren when he is not working.
     Father utilizes [P]aternal [G]randparents to care for the

                                   - 19 -
J-S35030-17


      [C]hildren after school and on days they do not have school.
      Paternal [A]unt, [U]ncle, and [G]reat-[A]unt are also available to
      care for the children.

            Mother and her husband are both employed full-time and
      are available to care for the [C]hildren when they are not
      working.    Maternal [A]unt is also available to care for the
      children. The Court notes children are fourteen (14) years old
      and eleven (11) years old and sufficiently mature for their ages.

      (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.

             This factor is neutral. There is a high level of conflict
      between the parties. However, the parties demonstrate equal
      willingness to cooperate.

      (14) The history of drug or alcohol abuse of a party or
      member of a party’s household.

             This factor does not apply. No evidence of alcohol or drug
      abuse by a party or a member of their household was introduced
      at trial.

      (15) The mental and physical condition of a party or
      member of a party’s household.

             This factor does not apply. No evidence that either parent,
      or a member of their household, has a mental or physical
      condition which would interfere with parenting [was introduced
      at trial].

      (16) Any other relevant factor.

            There are no other relevant factors.

Trial Court Opinion, 1/3/17, at 7-11.

      With regard to relocation, the trial court stated the following.




                                     - 20 -
J-S35030-17


           The [c]ourt must also take into consideration the
     relocation factors listed at 23 Pa.C,S. § 5337(h)… The Superior
     Court specifically stated that three factors are not encompassed
     by Section 5328(a) and should be considered separately.

     (1) The first of these is Section 5337(h)(2), which
     concerns the age, developmental stage, needs of the
     children and the likely impact the children’s change of
     residence will have on the children’s physical, educational
     and emotional development.

            This factor favors [F]ather. The [C]hildren are fourteen
     (14) and eleven (11) years old and have resided with [F]ather in
     Erie County for nine years. [R.G.] earns good grades, has
     friends at school, and participates in many sports and outdoor
     activities. [A.G.] has struggled in school but has recently been
     improving. [A.G.] also participates in many sports and outdoor
     activities. The [C]hildren’s activities are available through their
     schools and the YMCA. Paternal [G]randparents and [F]ather
     assist [the] [C]hildren with school work and attend their
     activities. Father is an assistant scoutmaster in the [C]hildren’s
     Boy Scout troop, where both boys hold leadership positions. The
     [C]hildren regularly attend church with [F]ather and [P]aternal
     [G]randparents.      Children’s healthcare providers, including
     dentist, orthodontist, and family counselor, whom [F]ather and
     [C]hildren see every three weeks, are located in Erie County.
     The [c]ourt notes [M]other would also ensure the [C]hildren
     receive a proper education and healthcare if they were to reside
     primarily with her. Primarily to promote consistency in the
     [C]hildren’s physical, educational, and emotional development,
     the [c]ourt finds it is in the children’s best interests to reside
     primarily with [F]ather in Erie County during the school year.

     (2) The second factor is Section 5337(h)(3), which
     concerns the feasibility of preserving the relationship
     between the other parent and the children.

           This factor is neutral. The parties have resided
     approximately four thousand (4,000) miles apart for nine years.
     Mother has consistently exercised periods of partial custody
     during the [C]hildren’s summer school vacations and every other
     winter break. Mother also travels to Erie County to see the
     [C]hildren. The [C]hildren speak to [M]other regularly on the
     telephone. Both parents testified they want the [C]hildren to

                                   - 21 -
J-S35030-17


     have a relationship with the other. Although conflict exists
     between the parties, both parents are equally willing to
     encourage the [C]hildren’s relationship with the other.

     (3) The third factor is Section 5337(h)(7), which concerns
     whether the change in the children's residence will
     enhance the general quality of life for the children.

            This factor is neutral. The [C]hildren have resided in Erie
     County with [F]ather for nine years. The [C]hildren attend the
     Wattsburg Area School District where both [C]hildren have
     friends and enjoy some of their classes.          The [C]hildren
     participate in outdoor activities such as snowmobiling, camping,
     hunting, and four-wheeling. The [C]hildren actively participate
     in Boy Scouts, where they hold leadership roles. Father,
     [P]aternal [G]randparents, and [the] [C]hildren regularly attend
     church together. The [C]hildren’s healthcare providers including
     dentist, orthodontist, and family counselor, whom [the]
     [C]hildren and [F]ather see every three weeks, are all located in
     Erie County.

            The [C]hildren expressed a strong preference to relocate
     to Alaska. The [C]hildren have consistently spent several weeks
     during the summer with [M]other in Alaska and [M]other spends
     time with the children in Erie County during the year. If the
     children relocate to Alaska and reside primarily with [M]other
     they would attend a new school and have different healthcare
     providers.    The [C]hildren enjoy the time they spend in
     [M]other’s custody and have friends in [M]other’s neighborhood.
     If the [C]hildren reside primarily with [M]other they will have
     access to similar sports and academic programs, including
     church and Boy Scouts. In Alaska, the [C]hildren will be able to
     participate in the same outdoor activities they enjoy in Erie
     County, such as snowmobiling, camping, hunting, and four-
     wheeling.

                              CONCLUSION

     The [c]ourt acknowledges both parents love the [C]hildren and
     are dedicated to meeting the [C]hildren’s needs. The [C]hildren
     love their parents and want to spend time with both of them.
     Both parties have established the integrity of their motives
     regarding the relocation. The [c]ourt acknowledges this matter
     was a very close decision. The [c]ourt, however, finds that

                                   - 22 -
J-S35030-17


      [M]other did not meet her burden of establishing that the
      relocation will serve the best interests of the [C]hildren. The
      [c]ourt therefore finds it is in the [C]hildren’s best interests to
      continue residing primarily with [F]ather during the school year.
      The [c]ourt, however, also finds that it is in the [C]hildren’s best
      interests to have more periods of partial custody with mother.
      Thus, [M]other’s partial custody during the summer school break
      shall be increased to eight (8) weeks.

            As set forth by the review of the best interest factors at 23
      Pa.C.S. § 5328(a), as well as the relevant factors listed at 23
      Pa.C.S. § 5337(h), the court finds that [M]other did not meet
      her burden of establishing that the relocation will serve the best
      interests of the [C]hildren and therefore her request is denied.
      Primarily because of the benefits to [A.G.] and [R.G] of
      maintaining stability and continuity in their education,
      community, and family relationships, the [c]ourt finds that it is
      in the [C]hildren’s best interests to continue in effect the Alaskan
      Parenting Agreement signed April 4, 2007, and the Custody
      Consent Agreement filed June 7, 2016, as amended herein.

Trial Court Opinion, 1/3/17, at 11-13 (citation omitted).

      In her brief on appeal, Mother argues that the trial court abused its

discretion in denying her request in her modification petition for primary

physical custody of the Children, which would require them to relocate to her

home in Alaska, asserting that the evidence supported the relocation.

Mother’s Brief, at 5 (unpaginated).     Mother concedes that the trial court

appropriately found that most of the statutory factors were neutral or

inapplicable to the parties. Id. at 6 (unpaginated). Mother contends that

the trial court abused its discretion by ruling that the best interest factor

dealing with abuse, section 5328(a)(2) of the Act, did not favor either party

under the evidence in this case. Id. Mother also urges that the trial court

failed to afford sufficient weight to the well-reasoned preference of the

                                     - 23 -
J-S35030-17


Children under section 5328(a)(7) of the Act.          Id.   Accordingly, Mother

requests this Court to find that the trial court abused its discretion in

denying her modification petition, and remand the matter to the trial court.

Id. at 5-6 (unpaginated).

        Our review of the record supports the trial court’s findings that the

Children are doing well in Father’s primary physical custody, and that they

would benefit from the stability Father provides them during the school year.

Thus, the court did not abuse its discretion when it concluded that Mother’s

unproven allegations that Father had physically abused the Children in the

past as relates to section 5328(a)(2), and the Children’s preference pursuant

to section 5328(a)(7), did not outweigh the other section 5328(a) factors,

particularly section 5328(a)(4), which requires consideration of the need for

stability and continuity in the child’s education, family life, and community

life.

        After review of the record, we determine the trial court’s findings

regarding the custody factors set forth under section 5328(a), including the

relevant factors under section 5337(h), and its determinations regarding the

Children’s best interests are supported by competent evidence in the record,

and we will not disturb them. M.J.M., 63 A.3d at 339; C.R.F., 45 A.3d at

443.    As we stated in King v. King, 889 A.2d 630, 632 (Pa. Super. 2005):

        It is not this Court’s function to determine whether the trial court
        reached the ‘right’ decision; rather, we must consider whether,
        ‘based on the evidence presented, given [sic] due deference to


                                       - 24 -
J-S35030-17


     the trial court’s weight and credibility determinations,’ the trial
     court erred or abused its discretion. . . .

(quoting Hanson v. Hanson, 878 A.2d 127, 129 (Pa. Super. 2005)).

     Accordingly, we affirm the trial court’s January 3, 2017 custody order.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/26/2017




                                   - 25 -
