J-A22016-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.B.W.,                                    :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                         Appellant         :
                                           :
            v.                             :
                                           :
J.R.W.,                                    :
                                           :
                         Appellee          :     No. 415 MDA 2014


                 Appeal from the Order Dated February 4, 2014,
                  In the Court of Common Pleas of York County,
                      Civil Division, at No. 2011-FC-1259-03.


BEFORE: PANELLA, SHOGAN and FITZGERALD*, JJ.

MEMORANDUM BY SHOGAN, J.:                          FILED OCTOBER 20, 2014

      J.B.W. (“Mother”) appeals from the order entered on February 4,

2014, awarding shared legal custody of the parties’ son, P.W. (“Child”), born

in September of 2008, to Mother and her former husband, J.R.W. (“Father”),

and awarding primary physical custody to Father and partial physical

custody to Mother in accordance with a schedule.            On appeal, Mother

challenges, inter alia, the trial court’s failure to apply the custody relocation

factors contained in 23 Pa.C.S. § 5337(h). For the reasons that follow, we

affirm.

      The parties were divorced in October of 2011.         Joint Stipulation of

Facts, 1/27/14, at 1 ¶ 3. Father resides in Alabama with his current wife,

H.W. (“Stepmother”). Id. at 1 ¶ 6. Mother resides in York, Pennsylvania,

__________________
*Former Justice specially assigned to the Superior Court.
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with Child and her mother, A.S.-C. (“Maternal Grandmother”).               N.T.,

1/24/14, at 8. Mother and Maternal Grandmother testified that Mother’s two

younger sisters, B. and M., along with Mother’s younger brother, D., also

reside in the home. Id. at 8, 99-100.

        Mother and Father shared legal custody of Child pursuant to a

stipulation for custody contained in a marital settlement agreement entered

on October 17, 2011, which was incorporated into, but not merged with, the

parties’ divorce decree. Joint Stipulation of Facts, 1/27/14, at 1-2 ¶¶ 9-10.

Under the October 17, 2011 custody order, Mother had primary physical

custody of Child in Pennsylvania, and Father had partial physical custody of

Child in Alabama.     N.T., 1/24/14, at 15-16.   Father had physical custody

from approximately June 1 of every year until the beginning of the third

week in August. Joint Stipulation of Facts, 1/27/14, at 1-2. Father also had

rights of custody for three-week periods over each of three holidays per

year.    Id. at 1 ¶ 9.   At the time of the custody agreement, Father was

working overseas. Id. at 2 ¶ 10.

        On October 3, 2013, Mother filed a petition to modify custody pursuant

to the Child Custody Act (“the Act”)1 and for contempt, alleging that Father

was in contempt for failing to share his home address with Mother, and for

failing to arrange to return Child to Mother on time.        Joint Stipulation of




1
    Child Custody Act (“Act”), 23 Pa.C.S. §§ 5321 to 5340.
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Facts, 1/27/14, at 2. Mother requested the trial court to enter an order for

custody consistent with her petition.

      On October 11, 2013, Father filed a notice of relocation pursuant to 23

Pa.C.S. § 5337. On October 15, 2013, Father filed an answer and counter-

petition, requesting the denial of Mother’s request for relief. Father sought

to hold Mother in contempt for willfully failing to comply with the trial court’s

custody order regarding his holiday custody time.             Moreover, Father

requested primary physical custody of Child during the school year and the

imposition of the transportation costs for Child on the party receiving

custody.   On October 16, 2013, Father filed an amended answer and

counter-petition.

      On October 22, 2013, Mother filed a counter-affidavit regarding

relocation pursuant to section 5337 of the Act, objecting to the relocation

and modification of the custody order in favor of Father, and requesting a

hearing on both matters. On October 28, 2013, the parties appeared for a

pretrial conciliation conference regarding Mother’s petition for contempt and

request for modification and Father’s answer and counter-petition.         In an

interim order for custody, pending trial, dated October 28, 2013, and

entered on October 29, 2013, the trial court temporarily awarded shared

legal custody, primary physical custody to Mother, and partial physical

custody to Father.




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      In a separate order entered on October 29, 2013, the trial court

scheduled a pretrial custody conference for December 12, 2013, and

directed both of the parties to file pretrial memoranda and to submit

parenting plans, pursuant to section 5331 of the Act. Mother complied on

December 4, 2013. Father complied on December 11, 2013, objecting that

Mother had failed to serve her counter-affidavit on him and his counsel,

although Mother had filed it with the trial court.

      On December 19, 2013, the trial court entered an order scheduling the

custody trial for January 24, 2014. In the scheduling order, the trial court

directed     the   parties   to   submit    a   joint   stipulation   of   facts   at   the

commencement of the custody trial and to include a consideration of each of

the enumerated factors outlined in 23 Pa.C.S. § 5328.                 Order Scheduling

Custody Trial, 12/19/13, at 3.             Moreover, the trial court provided the

following:

      Additional Matters: The parties stipulate and agree that the
      [C]hild is not competent to testify and his preference is not at
      issue. Furthermore, the parties agree that relocation factors do
      not apply to this case and shall be excused from presenting
      evidence on the relocation factors outlined in 23 Pa.C.S.A.
      § 5337. The parties shall make the [C]hild available for face
      time as frequently as arrangements can be made.

Id. at 5.

      On January 24, 2014, the parties filed the Joint Stipulation of Facts,

stipulating to the best-interest-factors listed under section 5328(a) of the




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Act as the factors for consideration. On that same date, the trial court held

the custody trial.

      At trial, Mother testified on her own behalf and presented the

testimony of Maternal Grandmother and S.G., Mother’s maternal aunt

(“Maternal Great-Aunt”).      N.T., 1/24/14, at 99, 108, 116, 124.      Father

testified on his own behalf. Id. at 129. Stepmother also testified. Id. at

212. The trial court judge did not question Child.

      On February 4, 2014, the trial court entered its custody opinion and

order, awarding shared legal custody, primary physical custody to Father in

Alabama, and partial physical custody to Mother in Pennsylvania, in

accordance with a schedule. Order, 2/4/14, at 2-3. The order provided the

following custody schedule:

      Prior to the commencement of the 2014-2015 school year, the
      custody of Child shall be as follows:

             Child shall be in the custody of Mother from the date of
          this Order until April 1, 2014. Mother shall provide Child
          with his own bed to sleep in and shall show Father Child’s
          bed via FaceTime.

             Child shall then be in the custody of Father from April
          1, 2014 until May 31, [2014].

            Child shall then be in the custody of Mother from May
          31, 2014 until the Monday of the week prior to the first
          day of school, at which time Child shall be in the primary
          physical custody of Father, subject to Mother’s rights as
          outlined further herein.

            All other provisions of this Order shall be in effect
          beginning the date of this Order.


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            SUMMER:

               Beginning in 2015 and continuing every year
            thereafter, Mother shall have custody of Child for the
            period defined herein. Summer shall be defined as the
            first Monday following the last day of school until the
            Monday of the week prior to the commencement of the
            school year.

Trial Court Order, 2/4/14, at 3. The order also provided that beginning in

2014 and continuing every year thereafter, Mother shall have custody of

Child for the Thanksgiving break, Christmas holiday break, and spring break.

Id. at 4.

      The order provided the following with regard to transportation:

            Due to the distance between the parties and the various
      options each parent may choose to secure custody, the parents
      shall communicate at least seven (7) days prior to the pick-up
      regarding the itinerary of the exchange, including exact times
      the parent will appear on the day of the exchange. Upon notice
      of the time of the exchange, the custodial parent shall ensure
      that Child is ready to be received, with all of his necessary
      personal belongings at the appointed time.

            The responsibilities of scheduling and paying for the
      transportation of Child shall be shared by the parties, with the
      parent who is to receive custody at the time of exchange to
      provide for transportation from the residence of the other
      parent. Additionally, due to Child’s age, the party obtaining
      custody must appear in person, or send a fit and willing relative
      on the parent’s behalf, to receive custody of Child. The parent
      receiving custody is also responsible for the cost of his or her
      own travel.    Child may not travel unaccompanied until the
      parties mutually agree Child is of an appropriate age to do so.

            Any individual transporting Child in an automobile shall
      have a valid driver’s license. At all times, Child shall be secured
      in appropriate passenger restraints. No person transporting
      Child shall consume alcoholic beverages or illegal substances or


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      be under the influence of medications which impair one’s ability
      to operate a motor vehicle prior to transporting the Child.

Trial Court Order, 2/4/14, at 4-5. Further, the trial court order addressed,

inter alia, the sleeping arrangements, stating that Mother shall provide Child

with his own bed in her residence, as should Father in his residence. Id. at

5.2

      On March 4, 2014, Mother 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). The trial court entered its Rule 1925(a) opinion on

March 11, 2014.3 On appeal, Mother raises the following issues:

      I. Whether the trial court committed an abuse of discretion in
      rendering a decision to grant Father primary physical custody of
      the parties’ minor [C]hild, P.W., which decision was against the
      weight of the evidence presented at trial, and is contrary to the
      best interests of the [C]hild?

         a. Whether the trial court abused its discretion and erred
         by determining that Father was more likely than Mother
         to encourage and permit the [C]hild to have frequent and
         continuing contact with the other parent, pursuant to 23
         Pa.C.S.A. § 5328(a)(1)?

         b. Whether the trial court abused its discretion and erred
         by determining that Father was more likely than Mother
         to provide stability and continuity in the [C]hild’s
         education, family life, an [sic] community life, pursuant to
         23 Pa.C.S.A. § 5328(a)(4)?


2
  We note that in its custody opinion, the trial court analyzed each of the
best interest factors under section 5328(a) of the Act and discussed the
types of custody set forth in section 5323.
3
 The trial court gave notice to the parties’ counsel, pursuant to Pa.R.C.P.
236, on March 11, 2014.
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         c. Whether the trial court abused its discretion and erred
         by determining 23 Pa.C.S.A. § 5328(a)(5) was neutral
         between the parties, as the evidence presented at the
         trial supports a finding that the [C]hild has greater ties
         and bonds with maternal family members rather than
         paternal family members?

         d. Whether the trial court abused its discretion and erred
         by determining that Father was more likely than Mother
         to maintain a loving, stable, consistent and nurturing
         relationship with the [C]hild, adequate for his emotional
         needs, pursuant to 23 Pa.C.S.A. § 5328(a)(9)?

         e. Whether the trial court abused its discretion and erred
         by determining that Father was more likely than Mother
         to attend to the daily physical, emotional, developmental,
         educational, and special needs of the [C]hild, pursuant to
         23 Pa.C.S.A. § 5328(a)(10)?

      II. Whether the trial court committed an error of law by failing to
      consider and/or apply the custody relocation factors contained in
      23 Pa.C.S.A. § 5337(h)?

      III. Whether the trial court abused its discretion and erred in
      entering a custody schedule that does not adequately preserve
      the relationship between [C]hild and Mother through suitable
      custody arrangements, considering the logistics and financial
      circumstances of the parties, pursuant to 23 Pa.C.S.A. §
      5337(h)(3)?

Mother’s Brief at 14-15.

      Initially, we observe that, as the hearing in this matter was held in

January of 2014, the Act is applicable. 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 the Act, i.e., January 24, 2011,

the provisions of the Act apply). In custody cases, our standard of review is

as follows:


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      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.

Id. at 443 (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
      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.

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Id. at 18-19 (quotation and citations 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 (23 Pa.C.S.

§ 5328(a) sets forth the best interest factors that the trial court must

consider; E.D. v. M.P., 33 A.3d 73, 80 n.2 (Pa. Super. 2011)) (23 Pa.C.S.

§ 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).

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

      (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 is 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(a).

      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

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     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 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.


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            (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. § 5328.4

      Ordinarily, where a request for relocation of the subject child 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.

         (2) The age, developmental stage, needs of the child and
         the likely impact the relocation will have on the child’s


4
  Effective January 1, 2014, the statute was amended to include an
additional factor at 23 Pa.C.S. § 5328(a)(2.1) (providing for consideration of
child abuse and involvement with child protective services).
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          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 also E.D., 33 A.3d at 81 (“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.”) (emphasis in original).



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      In A.V. v. S.T., 87 A.3d 818 (Pa. Super. 2014), this Court explained

the following:

      “All of the factors listed in 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 or 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, ___ Pa. ___, 70 A.3d 808 (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).

            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, ___ Pa. ___, 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., 87 A.3d at 822-823.

      First, we address Mother’s challenge to the trial court’s weighing of the

evidence with regard to the factors under section 5328(a), in particular,

(a)(1), (4), (5), (9), and (10). With regard to section 5328(a)(1), Mother

contends that the trial court abused its discretion in finding that Father was

more likely than Mother to permit Child to have frequent and continuing

contact with the non-custodial parent.        Mother’s Brief at 23-24.   Mother

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asserts that the trial court ignored or overlooked her cooperation with Father

and Father’s lack of cooperation with her. Id. at 24. Mother argues that the

trial court placed undue weight on FaceTime communication between Child

and Father while     Child is in Mother’s custody and overlooked the

uncontroverted evidence that Mother had supported and permitted regular

FaceTime communication between Child and Father.           Id.   Additionally,

Mother maintains that the trial court unfairly drew a negative inference that

she was seeking to restrict Father’s contact with Child because she filed the

petition to modify custody, although Father also sought a modification of the

existing custody schedule through his counter-petition. Id. at 26-27.

      In its Rule 1925(a) opinion, the trial court explained its determination

with regard to section 5328(a)(1) as follows:

            Despite the distance between the homes, Child has been
      able to maintain close relationships with both parents through
      frequent exchanges and contact via FaceTime11 or the telephone.
      The [trial court] assessed Father as the party more likely to
      promote the relationship between [Mother] and Child, pursuant
      to 23 Pa.C.S.A. § 5328(a)(1), because [Mother] continuously
      delayed setting up the FaceTime account so that Child may
      speak to Father more frequently face-to-face while Child is in
      [Mother’s] custody. At the time of trial, although the [trial
      court] had discussed its desire for [Mother] to establish the
      account prior to that date, it still had not been done.
      Furthermore, [Mother] testified she believed Father should only
      have the ability to FaceTime Child two or three times per week,
      although he could speak to Child once, twice a day maximum, on
      the telephone. With the FaceTime account requested, Child
      could frequently interact with the parties; it is obvious from
      [Mother’s] testimony she would prefer to limit the more
      substantial contact that FaceTime allows.       There was also
      credible testimony that Child is “coached” during conversations
      with Father. There was no credible evidence that Father had

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      engaged in such behavior. This evidence also would have been
      applied to 23 Pa.C.S.A. § 5337(h)(5).
            11
               FaceTime allows individuals with Apple products
            (iPad, iPhone, Mac computer, etc.) to make video
            calls so that individuals are able to see one another
            during the conversation.

Trial Court Opinion, 3/11/14, at 5-6 (some footnotes omitted).

      The trial court’s analysis pursuant to section 5328(a)(1) demonstrates

that the court did not find Mother’s testimony regarding her willingness to

provide Father with FaceTime with Child to be credible, and found credible

evidence that Mother had engaged in coaching Child. At the same time, the

trial court determined that there was no evidence that Father had coached

Child. There is no evidence that the trial court penalized Mother for filing

her petition to modify custody. Instead, the record reflects the trial court’s

evaluation of the evidence in determining which parent was more likely to

encourage and permit frequent and continuing contact between Child and

the other parent.

      After a careful review of the record, we find that there was sufficient

evidence to support the trial court’s credibility and weight determinations.

C.R.F., 45 A.3d at 443. The trial court’s conclusions are not unreasonable

as shown by the evidence of record. Moreover, the trial court’s conclusions

do not involve an error of law nor are they unreasonable in light of the

sustainable findings of the trial court. Id. Thus, we will not disturb the trial

court’s determinations.


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      Next, Mother argues that the trial court abused its discretion in

relation to its consideration of section 5328(a)(4). Mother argues that the

trial court inappropriately weighed section 5328(a)(4) against her because

she had enrolled Child in daycare. Mother’s Brief at 28. Despite weighing

Child’s enrollment in daycare against Mother, Mother asserts that the trial

court abused its discretion when it did not place any negative weight on

Father’s stated intention to enroll Child in daycare in Alabama if awarded

primary physical custody.    Id. at 29.   Mother also contends that the trial

court failed to consider:   the fact that Mother has been Child’s primary

caretaker since his birth; the stability of Mother’s life and housing situation

compared to Father’s instability; and, the stability of Child’s life in York

County. Id. at 28-29. Furthermore, citing M.J.M. v. M.L.G., 63 A.3d 331,

338 (Pa. Super. 2013), Mother urges that the considerations which were

part of the primary caretaker doctrine are now part of the statutory factors

at section 5328(a)(3) and (4). Mother’s Brief at 30. Mother contends that

the trial court erred in disregarding Mother’s role as Child’s primary

caretaker.    Id.   Mother contends that the trial court’s weighing of the

evidence was inequitable and unreasonable and constituted an abuse of

discretion. Id.

      The trial court explained its finding with regard to section 5328(a)(4)

as follows:

           The next factor for consideration is the need for stability
      and continuity in the child’s education, family life and community

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      life. Since Child was young, he has been with both parents for
      extended periods of time. He has extended family in the area
      surrounding either home. Because he has not yet begun a
      formal education, placement with either parent will not disrupt
      Child’s education. Additionally, it is noted that Mother recently
      unilaterally enrolled Child into daycare.      This factor favors
      Father.

Trial Court Opinion, 2/4/14, at 8.

      To the extent that Mother’s argument bears upon childcare, the trial

court provided the following explanation in its Rule 1925(a) Opinion:

            The facts on the record do indicate that [Mother] and
      Father are both capable of either caring for Child themselves or
      arranging for appropriate childcare. It is inaccurate to suggest
      otherwise. Father only works four days per week from 4:45
      a.m. until the early afternoon and attends school for two hours
      per night twice per week on Monday and Wednesday. When
      Father is unavailable to watch Child, Father’s wife, who works
      from home, is available to provide care. [Mother] has a varying
      work schedule, but relies upon her mother or her aunt to care
      for Child several times per week and Child also attends daycare.

Trial Court Opinion, 3/11/14, at 7-8 (internal footnotes omitted). The trial

court also found relevant the fact that Mother had unilaterally made the

decision to enroll Child in daycare. Trial Court Opinion, 2/4/14, at 8.

      In addressing Mother’s claim based on M.J.M., we find it helpful to

clarify that holding. In M.J.M., this Court stated:

      We simply cannot graft the judicially-created primary caretaker
      doctrine on to the inquiry that the Legislature has established
      [consideration of the factors outlined in 23 Pa.C.S. § 5328(a)],
      and so we conclude that the primary caretaker doctrine, insofar
      as it required positive emphasis on the primary caretaker’s
      status, is no longer viable.

            We hasten to add that this conclusion does not mean that
      a trial court cannot consider a parent’s role as the primary

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      caretaker when engaging in the statutorily-guided inquiry. As
      discussed above, a trial court will necessarily consider a parent’s
      status as a primary caretaker implicitly as it considers the
      section 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 subsection (a)(16).

M.J.M., 63 A.3d at 339. Thus, we cannot agree with Mother’s claim that the

trial court erred in failing to make a determination under Section 5328(a)(4)

based on the primary caretaker doctrine.

      Additionally, Mother argues that Father has acted erratically in the

past, alleging incidents involving threats against her and threats of his own

suicide. Mother’s Brief at 32. With regard to these incidents, the trial court

found the following:

             Furthermore, [the trial court] did consider the allegations
      regarding Father’s mental health, but found that Father does not
      pose a threat to Child’s safety and therefore did not address the
      issue in its Opinion.     Child has been in Father’s care for
      significant periods of time since the alleged incidents occurred
      and no evidence presented indicated that Child had witnessed
      any of these alleged incidents or that Father suffered from a
      mental health condition that would somehow render him unable
      to properly parent Child. According to testimony, [Mother] told
      Father’s wife that she was not concerned about Child’s safety, as
      she “trust[s] [Father] and know[s] that he never put [Child] in
      [h]arms [sic] way.”

Trial Court Opinion, 3/11/14, at 8 (footnote omitted). As we find that there

was sufficient evidence to support the trial court’s credibility and weight

determinations, we will not disturb them. C.R.F., 45 A.3d at 443.

      In a related argument, Mother next claims that the trial court abused

its discretion in determining that the availability of extended family


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members, pursuant to section 5328(a)(5), was neutral between the parties.

Mother’s Brief at 33.   Mother asserts that Child has resided primarily with

her since he was five months old, and that they have resided with Maternal

Grandmother, as well as Child’s maternal aunts, B. (age thirteen), and M.

(age eleven), and Child’s maternal uncle, D. (age ten). Id. at 33. Mother

states that, because of their ages, her family members are more like siblings

to Child than aunts and an uncle. Id. In comparison, Mother argues, there

was no evidence regarding Child’s relationship with extended paternal family

members other than Father’s testimony that Child plays with Step-Mother’s

seven-year-old nephew. Id. at 34.

      The trial court found as follows in addressing this factor:

            Both parents have extended family in the area surrounding
      their own residences.          Mother lives with [M]aternal
      [G]randmother and three of Mother’s young siblings, ages 10,
      11, and 13. A maternal aunt also lives nearby and frequents the
      home. Father lives within an hour of approximately twenty of
      his own relatives, including two brothers, the children of those
      brothers, and aunts and uncles. Whichever parent has primary
      custody of Child has extended family available. This factor is
      therefore neutral.

Trial Court Opinion, 2/4/14, at 8.

      The evidence of record reflects that with either parent, extended

family is in place. As we find that there was sufficient evidence to support

the trial court’s credibility and weight determinations, we will not disturb

them. C.R.F., 45 A.3d at 443. Thus, we cannot agree that the trial court




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abused its discretion in determining that this factor was neutral between the

parties.

      Next, Mother contends that the trial court abused its discretion in

determining that Father was more likely than Mother to maintain a loving,

stable, consistent, and nurturing relationship with Child, adequate for Child’s

emotional needs, pursuant to section 5328(a)(9).         Mother’s Brief at 35.

Mother asserts that the trial court’s focus on the reference between Child

and her as “best friends” was an abuse of the trial court’s discretion.     Id.

Mother claims that there was no evidence “that a parent and child

affectionately referring to one another as best friends is harmful to the child

or otherwise not in the child’s best interests.”   Id. Further, Mother states

that, as the trial court did not interview Child, there was no indication or

evidence of any negative effect on him. Id.

      The trial court provided the following analysis as to this factor:

             Both parents unquestionably love Child and, according to
      the testimony presented, he loves them as well. The [trial
      court] is concerned, however, that Mother and Child refer to
      each other as “best friends.” There is some instability in such a
      relationship, especially due to Child’s age, as it causes Mother to
      sometimes ignore appropriate boundaries. Mother’s conduct
      requires [the trial court] to find this factor leans in favor of
      Father.

Trial Court Opinion, 2/4/14, at 9-10.

      In stating its concern that Mother lacks the ability to impose proper

boundaries for Child, it is clear that the trial court considered instances

where Mother had exhibited lapses in judgment, such as allowing Child to sit

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on her lap while driving, video recording the experience, and sharing it with

others. Trial Court Opinion, 2/4/14, at 10. The trial court also considered

the sleeping arrangements in Mother’s home, where Child sleeps in Mother’s

bedroom, despite each of Mother’s female siblings having her own room.5

Id.      As such, we conclude that there was evidence before the court to

suggest that Mother’s friendly relationship with Child caused an erosion of

the parent-child boundaries. Because we conclude that there was sufficient

evidence to support the trial court’s credibility and weight determinations,

we will not disturb them. C.R.F., 45 A.3d at 443.

         Mother next challenges the trial court’s determination regarding

section 5328(a)(10), which parent is more likely to attend to the daily

physical, emotional, developmental, educational, and special needs of the

child.    Mother’s Brief at 36.   Mother asserts that Father never expressed

concerns about Child’s sleeping arrangements at Mother’s home during the

custody trial. Id. 36. She states that there was no evidence presented that

Child’s sharing a bedroom with Mother would impair his emotional and

developmental needs. Id. Mother also claims that although Father testified

that he was concerned about Child when he saw a video of Mother driving

with Child in her lap, he waited a few days before calling police, thereby

suggesting a disingenuous motive.        Id.   Mother states that the driving


5
  While the trial court stated that Mother shared a bed with Child, Mother
testified that she shared a bedroom, not her bed, with Child. N.T., 1/24/14,
at 9.
                                      - 22 -
J-A22016-14


incident was isolated, on her quiet street, and coupled with Father’s

disingenuous concern, does not support the trial court’s finding that this

factor is weighed in favor of Father. Id.

      To the contrary, Mother asserts, the trial court did not consider

evidence that Father is not serving the developmental needs of Child.

Mother’s Brief at 36-37. Mother argues that the trial court failed to consider

the fact that, when in Father’s care, Father pushes Child to lose weight,

against the recommendation of the pediatrician.       Id. at 37.     Additionally,

Mother asserts that the trial court failed to consider that she had been

Child’s primary caregiver since Child was five months old and provides for

Child’s day-to-day needs. Id. at 37. When in Mother’s custody, she gets

Child ready for school and takes him to daycare. Id. Conversely, Mother

states, when Child resides with Father, Stepmother provides for fifty percent

of Child’s day-to-day needs. Id.

      In addressing this factor, the trial court found as follows:

             This factor favors Father. Once again, the nature of the
      relationship between Mother and Child causes Mother to[,] at
      times[,] act inappropriately or contrary to Child’s safety. She
      not only encourages potentially dangerous behavior, such as
      allowing Child to drive the car while he is sitting upon her lap,
      but she records and shares it electronically. Additionally, she
      does not always put Child’s best interests above her own. The
      evidence shows that while Mother resides in a four-bedroom
      house, Child is forced to share a bed with Mother and his ten-
      year[-]old uncle shares a room with the maternal grandmother.
      Interestingly, however, each of his aunts – ages 11 and 13 –
      have their own bedrooms. Father is the parent who assumes an
      appropriate role in Child’s life and provides for Child’s needs


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J-A22016-14


      accordingly.   The [trial court]         will   address   the   sleeping
      arrangements in the Order.

Trial Court Opinion, 2/4/14, at 10.

      It is apparent that the trial court was concerned for Child’s safety

based on the driving incident and Mother’s lack of judgment in determining

the sleeping arrangements in her home with Maternal Grandmother. Mother

asks this Court to overlook matters that the trial court found significant to

Child’s emotional and developmental needs.            We cannot do so.      After a

careful review of the record, we find that there was sufficient evidence to

support the trial court’s credibility and weight determinations.         C.R.F., 45

A.3d at 443. The trial court’s conclusions are not unreasonable based on the

evidence of record. Moreover, the trial court’s conclusions do not involve an

error of law, and are not unreasonable in light of the sustainable findings of

the trial court. Id. Thus, we will not disturb the trial court’s determinations.

      In her second issue, Mother argues that the trial court committed an

error of law in failing to consider section 5337(h) relocation factors in its

opinion and order entered on February 4, 2014. Mother’s Brief at 37. While

Mother acknowledges that the parties entered into the joint stipulation of

facts and agreed that relocation would not be placed at issue at the custody

trial, she now contends that the parties may not waive the relocation factors

by stipulation. Id. at 38. Accordingly, Mother asserts, the trial court should

have considered the relocation factors at the time of issuing its February 4,

2014 order. Id. at 40.

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      We first note this Court’s recent ruling in D.K. v. S.P.K.,    A.3d     ,

2014 WL 4923111, 2014 Pa. Super. 218 (Pa. Super. filed October 02, 2014),

in which this Court was confronted with the same factual scenario presented

herein: where neither party was relocating but the children were moving a

significant distance due to custody being shifted from one parent to another.

The Court was presented with the question of whether such custody

modification was a “relocation,” and thus, whether the provisions in section

5337 regarding relocation were triggered. Id. at *3. The Court concluded

that the shift of primary physical custody in this situation does not, per se,

trigger section 5337 of the Child Custody Act. Id. at *10. “Thus, the notice

requirement of section 5337(c) does not apply in such cases.”       Id.     The

Court, however, stated the following with regard to the relocation factors

under section 5337(h):


      Trial courts should still consider the relevant factors of section
      5337(h) in their section 5328(a) best interest analysis. As we
      have explained, several of the relevant factors of section
      5337(h) are encompassed, directly or implicitly, by the custody
      factors listed in section 5328(a). Any relevant section 5337(h)
      factor that is not expressly encompassed in section 5328(a)
      should be considered by the trial court under the catchall
      provision of section 5328(a)(16).

Id.

      Thus, given the facts of the case sub judice, we conclude that the shift

of primary physical custody from Mother’s residence to Father’s, does not,

per se, trigger 23 Pa.C.S. § 5337. Based on D.K., however, the trial court is


                                    - 25 -
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compelled to consider the relevant relocation factors outlined in section

5337(h) in conducting its analysis pursuant to section 5328(a). As noted,

several of the section 5337(h) factors are encompassed directly or implicitly

by the custody factors listed in section 5328(a).

      Here, we note that the trial court expressly considered each of the

section 5337(h) factors in its Pa.R.A.P. 1925(a) opinion, dated March 11,

2014.6   The trial court’s discussions regarding the encompassed section

5337(h) factors were repetitive of the trial court’s analysis of those related

factors conducted pursuant to section 5328(a).          Trial Court Opinion,

3/11/14, at 3-9.    It is clear that the trial court took into consideration,

throughout its analysis, the impact of shifting primary physical custody to

Father, and the related change in primary physical residence for Child.

      Furthermore, the Court in D.K. identified factors 5337(h)(2), (h)(3)

and (h)(7) as factors that are not directly or implicitly encompassed in

section 5328(a), but are relevant to a determination of custody that is in the

child’s best interest and thus should be considered under the catchall

6
  We find A.M.S., 70 A.3d at 835, distinguishable from the instant situation
in that the trial court omitted its application of the section 5337(h) factors
from its February 4, 2014 opinion and order because of the parties’
stipulation to not have the court address those factors. Despite that
stipulation, it is obvious that the trial court considered relevant section
5337(h) factors when it conducted its best interest of the child analysis
under section 5328(a). Additionally, the trial court had conducted its review
prior to the holding in D.K. Thus, we reject Mother’s suggestion that the
trial court’s consideration of the relocation factors in its Pa.R.A.P. 1925(a)
opinion, dated March 11, 2014, does not comply with the mandate of the
Act.


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provision of section 5328(a)(16). D.K., 2014 Pa. Super. 218 at *10. With

regard to factor 5337(h)(2), the trial court explained that Father had been

living in Alabama since Child was one year old, and Child had spent

significant periods of time with Father in Alabama.              The trial court

determined that when with Father in Alabama, Child’s needs are met. Trial

Court Opinion, 3/11/14, at 4; Trial Court Opinion, 2/4/14, at 10.                In

addressing 5337(h)(3), the trial court attempted to craft a custody schedule,

given the Child’s attendance at compulsory schooling and the distance

between the parties, that would preserve the relationship with both parents.

Trial Court Opinion, 3/11/14, at 4. Trial Court Opinion, 2/4/14, at 10. As to

factor 5337(h)(7), the trial court explained that Father could provide Child

with housing more appropriate than that provided by Mother.              Trial Court

Opinion, 3/11/14 at 6; Trial Court Opinion, 2/4/14, at 10.             Although the

court in D.K. opined that these factors were not directly or implicitly covered

by Section 5328(a), it is clear from the trial court’s February 4, 2013

opinion, that in this case, the trial court also considered these factors in

conducting    its   best-interest-of-the-child   analysis   pursuant    to   section

5328(a). As such, we cannot agree with Mother’s claim that the trial court

committed an error of law by failing to consider or apply the custody

relocation factors in 23 Pa.C.S. § 5337(h).

      In particular, Mother challenges the trial court’s findings with regard to

section 5337(h)(3), as identified in her third issue presented on appeal.


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Mother’s Brief at 40.    Mother asserts that the February 4, 2014 custody

order does not set forth a schedule that would adequately preserve Child’s

relationship with her, as she has been Child’s primary caretaker for five

years. Id. at 41. She complains that the time between her custodial breaks

is long, and that she is not permitted to exercise custody, so that Child will

go for months without seeing Mother and his maternal family members. Id.

Mother also requests that she have the first option to exercise custody

during a long weekend off from school. Id.

      In addressing this claim, the trial court stated as follows:

      Unfortunately, because of the long-established distance between
      the parties and Child’s imminent enrollment in compulsory
      schooling, the schedule involves one parent having primary
      physical custody of Child and the other partial physical custody,
      or a “more traditional school schedule,” as [Mother] referred to
      it. That said, [the trial court] crafted a custodial schedule that
      maximizes Child’s time with both parents.         Although travel
      arrangements may be logistically or financially burdensome,
      these arrangements have been necessary for years.             The
      financial burden of the travel arrangements primarily fell upon
      Father.

Trial Court Opinion, 3/11/14, at 4 (footnotes omitted).

      The trial court adequately explained its decision to follow a “more

traditional school schedule” in its partial custody award to Mother, especially

in light of the distance between the parties. Thus, we conclude that there

was sufficient evidence to support the trial court’s credibility and weight




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determinations with regard to section 5337(h)(3), and do not disturb its

order. C.R.F., 45 A.3d at 443.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/20/2014




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