J-S64017-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.L.J.                                            IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                       v.

S.L.J. N/K/A S.L.M.

                            Appellant

                       v.

A.P. & B.P., JR.
                                                       No. 1093 MDA 2015


                   Appeal from the Order Entered May 27, 2015
                   In the Court of Common Pleas of York County
                     Civil Division at No.: 2009-FC-000619-03


BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and FITZGERALD, J.*

MEMORANDUM BY WECHT, J.:                          FILED DECEMBER 07, 2015

         S.L.J. (“Mother”) appeals the May 27, 2015 order that disposed of

J.L.J.’s (“Father”) petition for modification of custody and A.P. and B.P., Jr.’s

(“Maternal Grandparents”) complaint for partial custody.            After careful

review, we affirm.

         Mother and Father are the parents of C.R.J. (“Child”), born in January

2005. Mother and Father separated around Christmas 2006, and divorced

on July 9, 2007. As of April 2007, Mother resided in Montgomery County.

She had primary physical custody of Child and Father had custody every

other weekend plus every Thursday evening.         By April 2009, when Father
____________________________________________


*
         Former Justice specially assigned to the Superior Court.
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filed a complaint for custody, Mother had moved to York County,

Pennsylvania, (with Father’s consent) and Father had moved to New Jersey.

In September 2009, the parties reached a custody agreement that was

entered as an order on October 2, 2009.          Mother had primary custody.

Father had alternate weekends during the school year with ten additional

overnights to be selected that did not interfere with Child’s school and five

weeks in the summer.

       Custody was modified again in May 2012.        During the school year,

Father had custody for one extended weekend per month and, if the school

calendar did not have an extended weekend, then Father had two weekends

in that month. For the summer, the parties alternated custody with Father

having three weeks, followed by Mother having two weeks.

       On May 30, 2014, Father filed a petition for contempt and for

modification of custody. Father alleged that Mother had violated the 2012

custody order in a variety of ways,1 and he sought to modify the custody

schedule. Also, on June 2, 2014, Maternal Grandparents filed a complaint

for custody, in which they sought partial physical custody and to have their

____________________________________________


1
       For example, Father alleged that Mother failed to keep Father informed
of medical appointments and treatment, failed to inform Father of school
meetings, failed to notify Father when Mother was out of town, failed to
notify Father of Child’s out-of-state travel, failed to inform Father of the
names of childcare providers, scheduled activities during Father’s custodial
time, withheld Child from Father during Father’s custodial time, and
interfered with Father’s phone calls with Child.



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complaint consolidated with Father’s custody action.     On September 12,

2014, the trial court ruled upon Father’s petition for contempt. Although the

court did not find Mother to be in contempt, the court issued some

clarifications of the custody order to promote communication between Child

and Father.

       After Father filed his petition and approximately two weeks before the

trial started, Mother informed the trial court that she intended to move from

York, Pennsylvania to Huntingtown, Maryland because her employer had

offered to relocate her. Mother sought to retain primary custody of Child in

Maryland.     However, Mother never provided notice of the relocation as

required by 23 Pa.C.S.A. § 5337.

       The trial court heard testimony on March 6, April 24, and May 1, 2015.

Father lives in Toms River, New Jersey. Joint Stipulations, 5/28/2015, at 2.

He lived with M.W.-J. (“Wife”) in a house owned by Wife’s parents, D.A.F.

(“Father-in-Law”) and C.F. Id. at 3. Because the house had been damaged

by Hurricane Sandy, Father, Wife, and her parents had been living about an

hour away with Father’s mother while repairs were made.            Notes of

Testimony (“N.T.”), 4/24/2015 (afternoon), at 7. 2   Father testified that he


____________________________________________


2
      From the record, it appears that some of Father’s testimony may be
missing. The April 24, 2015 transcript notes that Father’s direct examination
was continued from an earlier time. N.T., 4/24/2015, at 6. However, no
testimony from Father is recorded either in the morning or afternoon
volumes of the March 6, 2015 testimony. No other transcript has been
(Footnote Continued Next Page)


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had communication issues with Mother and that Mother recently withdrew

Child from soccer without talking to Father about it.           Id. at 16.    Father

stated that, previously, if Child had a Saturday soccer game on Father’s

scheduled weekend, Mother refused to transport Child from soccer to the

scheduled custody exchange point and instead required Father to pick Child

up from soccer.        Id. at 14-15.       Father had difficulty Skyping with Child

because Mother would not initiate a call or would refuse to take a call,

claiming that there was a schedule conflict or that Father was late. Id. at

35-38.   When Father went to pick Child up after the March 6, 2014 court

date, Mother’s husband, J.M. (“Husband”), told Father that he was not

welcome and that he could not enter the house. This conversation occurred

when Child was close enough to overhear. Id. at 39-40. Father learned of

Mother’s proposed move when Child told him about it.             Id. at 29.   Father

testified that Mother told him that she was required to move for work, even

though it was not true. Id. at 28.

      Initially, Father sought more time with Child, but thought that Child

should stay in Mother’s primary care because Child, who suffered from

learning difficulties, had been making so much progress.               Id. at 30.

However, when he learned that Child would be moving to Maryland, he

sought primary custody.          Id. at 30-31. Father talked with staff at Child’s

                       _______________________
(Footnote Continued)

entered in the certified record and we can find no reference to any other
hearing date in the record.



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potential school in New Jersey and was convinced that the school could

handle Child’s learning needs.        Id. at 12-14.      Father has been in

communication with Child’s psychologist and kept him informed of Child’s

progress while at Father’s house.     Id. at 29.     Father also discussed the

possible transition to New Jersey with Child’s psychologist. Id. at 42-43.

      Father encouraged Maternal Grandparents’ involvement in Child’s life

because Maternal Grandparents provided a great deal of care for Child when

he was young.    Father believed that Maternal Grandparents are important

to Child.   Id. at 24-25.     To that end, Father has included Maternal

Grandparents in Christmas and other events. Id. at 26-27.

      Mother testified that she lives in York, Pennsylvania, with Husband,

Child, and J.A.J. (“Brother”), her three-year-old son with Husband.      Id. at

82. Mother stated that Child and Brother get along well, but that there is

competition for attention at times.    Id. at 83.    Child gets along well with

Husband, too. Id. Mother indicated that Husband is retired and is therefore

able to care for Child and Brother.     Id. at 95.    Mother works in human

resources and has worked primarily in Harrisburg or Bowie, Maryland;

however, travel to other sites was necessary at times. Id. at 97. Recently,

though, Mother’s company merged with another, and Mother’s region grew.

Id. at 98. Mother’s region is now focused on Chantilly, Virginia, Baltimore,

and Bowie, Maryland, although working in Harrisburg remained an option.

Id. at 99. Mother’s home in York is a two-hour drive to her closest office.

Id. at 100. Mother testified that her move to Huntingtown, Maryland, would

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allow her to be home more and to spend less time travelling and commuting.

Id. at 104-05. The new location would add one half-hour each way to the

distance to Father’s house. Id. at 200. Mother admitted that she did not

inform Father about the move immediately because Mother did not believe

that the move constituted a relocation under the custody statute.     Id. at

174. Mother entered into a contract to build her new home in Maryland in

April 2015, after the custody litigation had begun. Id. at 202.

      Mother was Child’s primary caretaker, although Child did attend

daycare. For one year, Maternal Grandparents helped with childcare. Id. at

85.   Mother contended that Father’s active involvement in Child’s life only

has been recent. Mother noted that Father had not attended soccer games,

school activities, or doctor appointments consistently. Id. at 89-90. Mother

contended that Father was the cause of the communication difficulties

regarding custody. Id. at 168-70. Mother admitted that she cut off contact

between Maternal Grandparents and Child after Maternal Grandparents filed

to intervene in the custody case. Id. at 178.

      Child’s first-grade teacher brought Child’s learning difficulties to

Mother’s attention and she had him start seeing his current psychologist.

Id. at 85-86.   Mother has worked with Child on exercises to improve his

reading on a daily basis.   Id. at 196.    In considering relocating, Mother

reviewed schools and found one that offered programs comparable to those

that Child already was receiving. Id. at 109.




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      Child testified in camera. Child testified that Husband usually gets him

ready for school and watches him after school because Mother is at work.

N.T., 3/6/2015 (afternoon), at 37-38. Husband also is generally the person

who disciplines Child while he’s in Mother’s custody.      Id. at 41.    Child

described a sometimes difficult relationship with Husband, but also testified

that Husband helps Child with his homework. Id. at 42-43. Child enjoys his

time with Father.   Id. at 46.   Father and Wife sometimes attend Child’s

soccer games. Id. at 49. Child did not want to move to Maryland. Id. at

51-52. Child testified to his good relationship with Maternal Grandparents

and expressed the wish that there was an extra weekend in the month so he

could have a weekend with Maternal Grandparents without losing time with

Mother and Father. Id. at 55-56, 62-63.

      Maternal Grandmother testified about her close relationship with Child.

N.T., 5/1/2015, at 6. However, when recommended by Child’s psychologist,

Maternal Grandparents stepped back from spending as much time with

Child. Id. at 7. Father has a good relationship with Maternal Grandparents

and supports their time with Child.       Id. at 8.   Maternal Grandmother

testified that Child is more relaxed and happy at Father’s home and believed

that it was in Child’s best interest to live primarily with Father even though

that would limit Maternal Grandparents’ time with Child.      Id. at 10, 14.

Maternal Grandmother reached out to Father because she had concerns

about Husband’s relationship with Child and about Child’s medical condition.

Id. at 39-40.

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     Child’s treating psychologist, Dan Ingram, Psy.D., testified.       Dr.

Ingram diagnosed Child with situational depression, phonological dyslexia,

dysgraphia, and ADHD. N.T., 3/6/2015 (morning), at 9, 83. Dr. Ingram has

worked significantly with Child’s school to develop a plan that meets Child’s

educational needs.    Id. at 82.     Dr. Ingram described Child as very

emotional, very manipulative, and very affected by conflict. Id. at 57-58.

Dr. Ingram felt that Child’s view about who he wants to live with is colored

by whom he was with most recently. Id. at 72. Dr. Ingram testified that he

works with Mother and Father and their respective spouses as well as Child

and that he communicates with Father after Child’s sessions to keep Father

informed. Id. at 58-59. Dr. Ingram expressed no concerns about Husband

in regards to his care of Child and found Husband to be knowledgeable about

Child’s problems and needs.     Id. at 62-63.     Although Mother expressed

concerns about Maternal Grandparents’ stability, Child was very positive

about his time with them.     Id. at 64-65.      Given Maternal Grandparents

history in Child’s life, Dr. Ingram opined that ongoing access is in Child’s

best interest, but that Maternal Grandmother must keep Child out of the

conflict between her and Mother.    Id. at 98.    Dr. Ingram recognized that

Mother has more insight and involvement in Child’s school and treatment,

but believed that, if Child were to live with Father, Father would provide

good care and would be as involved. Id. at 74-75. Dr. Ingram cautioned

that any change in school for Child would have to be well-planned given




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Child’s educational needs. N.T., 4/24/2015, at 130. Dr. Ingram also opined

that a change in school would be a difficult transition for Child. Id. at 140.

      Peter H. Thomas, Ph.D., a psychologist, provided a custody evaluation

and testified as an expert witness.     N.T., 3/6/2015 (morning), at 9.     Dr.

Thomas recommended, without knowledge of Mother’s proposed relocation,

that Mother remain primary custodian because Child is strongly attached to

Mother.   Id. at 12.   However, Dr. Thomas was concerned about Husband

because Child and Husband had conflicts.         Id. at 10-11.     Dr. Thomas

described Husband as “aggressive . . . with an undercurrent of some anger

and probably some tendency to be involved in conflicts.”       Id. at 11.   Dr.

Thomas opined that Husband may have made the conflict between Mother

and Maternal Grandparents more difficult because Husband handled issues

with them “in a more angry fashion.” Id. at 33. Dr. Thomas also stressed

that, although Husband is present in the home more than Mother, Mother

must remain the primary disciplinarian.     Id. at 12.   When informed about

Mother’s move, Dr. Thomas was concerned about separating Child from his

school, environment, and current therapist, and also the increased distance

between Child and Father and Maternal Grandparents.         Id. at 15-16.   Dr.

Thomas found Maternal Grandmother to be difficult and to have trouble

respecting boundaries.    Id. at 33.     However, Dr. Thomas found Child’s

relationship with Maternal Grandparents to be an important part of his life.

Id. at 34.    Dr. Thomas acknowledged that Father has a more positive

relationship with Maternal Grandparents than Mother does. Id. at 46.

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     Wife testified that she had a good relationship with Child.          N.T.,

4/24/2015, at 64. Wife confirmed that there are difficulties between Mother

and Father in relation to custody and corroborated Father’s account of his

relationship with Mother. Id. at 65-67.

     Husband testified that he is retired and has two adult daughters in

addition to Brother.   Id. at 208.   Husband is involved in Child’s care and

educational needs on a daily basis. Id. at 211-12. Husband testified that

Maternal Grandmother insisted on going to custody exchanges with Mother,

but that he and Mother began to refuse this because Maternal Grandmother

would upset Child.     Id. at 218-20.         Husband described Mother as a

committed and dedicated parent. Id. at 224.

     B.V.J. (“Paternal Grandmother”) testified that Father and Wife lived

with her for some time after their home was damaged by Hurricane Sandy.

N.T., 3/6/2015 (afternoon), at 8. Father and Wife had moved back to their

home about two months before the first trial date.              Id.   Paternal

Grandmother lives about forty-five minutes from Father’s house and would

be available to help care for Child if Child was home sick from school or if

Father and Wife were working.        Id. at 10.     Father facilitates Paternal

Grandmother spending time regularly with Child during Father’s custodial

time. Id. at 16.

     Father-in-law testified that Wife and Father live in a separate wing in

the house.    N.T., 3/6/2015 (afternoon), at 19.     Father-in-law intended to

transfer the deed of the house to Wife with a living trust for him and his

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wife. Id. at 20. Father-in-law and his wife are retired and would be able to

provide after-school and other care for Child as needed if Father and Wife

were unavailable. Id. at 22-23.

     On May 27, 2015, the trial court issued an opinion and order. The trial

court denied Mother’s request for relocation. The trial court ordered shared

legal custody between Mother and Father. If Mother moved to Maryland, the

trial court ordered that Father would have primary physical custody and

Mother and Maternal Grandparents would have partial custody.             Mother’s

custody during the school year would be alternating weekends and Maternal

Grandparents would have eight hours of custody during one of Father’s

weekends and three hours on alternating Wednesdays. During the summer

vacation, Father would have custody for the first, sixth, and tenth weeks.

Mother would have custody during the second through fourth weeks and

seventh through ninth weeks.      Maternal Grandparents would have custody

for the fifth week of summer.

     However, if Mother did not move, then Mother would have primary

physical custody of Child.   In that scenario, Father would have the same

custody   that   was   afforded   to   Mother   if   she   moved   and   Maternal

Grandparents’ custody would remain the same.

     On June 25, 2015, Mother filed a notice of appeal. On the same date,

she filed a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(a)(2)(i) and (b). On July 9, 2015, the trial court issued an

opinion pursuant to Pa.R.A.P. 1925(a), in which it referred to its May 27

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opinion and responded to the issues that Mother preserved in her concise

statement.

      Mother raises the following issues for our review:

      I.     Whether the trial court erred as a matter of law and/or
             abused its discretion in determining that Mother’s
             proposed move qualified as a relocation pursuant to 23
             Pa.C.S.A. §§ 5322 and 5337?

      II.    Whether the trial court erred as a matter of law and/or
             abused its discretion in deciding the issue of relocation
             before making a custodial decision based upon the best
             interests of the children?

      III.   If it is determined that Mother’s proposed move qualified
             as a relocation, did the trial court err as a matter of law
             and/or abuse its discretion in denying Mother’s request to
             relocate and in not awarding primary custody to Mother in
             Maryland?

      IV.    Whether the trial court erred as a matter of law and/or
             abused its discretion in failing to consider the relocation
             factors in awarding Father primary physical custody in New
             Jersey if Mother is to move to her proposed new residence
             in Maryland?

      V.     Whether the trial court erred as a matter of law and/or
             abused its discretion in awarding Maternal Grandparents
             rights of partial physical custody without properly
             evaluating the factors as set forth in 23 Pa.C.S.A. § 5328?

      VI.    Whether the trial court erred as a matter of law and/or
             abused its discretion in failing to consider and give the
             appropriate weight to the well-reasoned preferences of the
             child?

Mother’s Brief at 4-5.

      Our standard of review in child custody 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

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      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.

D.K. v. S.P.K., 102 A.3d 467, 478 (Pa. Super. 2014) (quoting J.R.M. v.

J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011)).

      Mother first asserts that the trial court erred in determining that

Mother’s move to Maryland constituted a relocation. Mother argues that the

move would not impair Father’s custody because Father still would be able to

participate in his weekend and summer custody schedule. Mother contends

that the increase in distance is minimal. Mother also argues that the move

would not interfere with Maternal Grandparents’ partial custody.       Mother’s

Brief at 14-17.

      The statute defines a relocation as “[a] change in a residence of the

child which significantly impairs the ability of a nonrelocating party to

exercise custodial rights.” 23 Pa. C.S.A. § 5322. We have not often had the

opportunity to confront whether a proposed move constitutes a relocation

under this definition.   However, in C.M.K. v. K.E.M., 45 A.3d 417 (Pa.

Super. 2012), we found that a proposed move of sixty-eight miles did

constitute a relocation. In that case, the mother had primary custody and

the father had custody every other weekend and one weeknight for two-and-

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one-half hours. Id. at 419-20. The father was found by the trial court to be

actively involved in the child’s life, including school and extracurricular

activities. Id. at 420. Rejecting the mother’s contention that there was no

substantial impairment in the father’s custody because his custodial time

would increase under the mother’s proposal, the Court determined that the

proposed move would significantly threaten the father’s ability to exercise

custody.    Id. at 426.    The Court cited attendance at the child’s school,

sports, and medical appointments as evidence of the father’s involvement.

We stated that “[t]he record confirms the trial court’s conclusion that [the

mother’s] proposed relocation would break the continuity and frequency of

[the   father’s]   involvement   with    [the    child]   and   therefore   threatens

significant impairment of [the father’s] ability to exercise his custodial

rights.” Id.

       Here, the trial court made a similar finding. First, the trial court cited

Mother’s exhibit that demonstrated that her move would add approximately

fifty miles each way to the travel between Mother’s and Father’s homes. The

court found that would increase Child’s travel by two hours for every

weekend exchange.       Further, the eight-hour round trip would significantly

curtail Father’s ability to attend Child’s sporting or school events. Trial Court

Opinion (“T.C.O.”), 5/27/2015, at 5.         The trial court also considered the

impact of the proposed move upon Maternal Grandparents, who attend

Child’s sports practices, games, and school events “on a regular basis.” Id.

at 6. The new location would require an approximately four-hour round trip,

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which would significantly hinder Maternal Grandparents’ ability to exercise

their partial custody rights because “[i]t would be fairly implausible for

Maternal Grandparents to regularly attend [Child’s] soccer games or other

school and extracurricular activities during the week.” Id.

      The record supports the trial court’s finding that Mother’s proposed

move would substantially impair custody. Although Father’s custodial time

would not decrease, a lack of reduction of custodial time does not, by itself,

preclude finding a substantial impairment in custody.     See C.M.K., supra.

Father has attended Child’s sports and school events, even outside of his

custodial periods. Father has maintained a presence in Child’s medical care

by being in regular and consistent contact with Dr. Ingram.        Father has

participated in the extra academic activities that have been designed to aid

with Child’s learning difficulties. The extra distance and a new psychologist

and school threatens impairment of Father’s ability to participate in these

parts of Child’s life.   Further, the greatly increased distance for Maternal

Grandparents would impair their ability to participate in Child’s activities at

the level they currently do. Given the support for the trial court’s findings,

the trial court did not abuse its discretion in determining that Mother’s

proposed move would impair the custody rights of the nonrelocating parties

and, therefore, was a relocation.

      Mother next argues that the trial court erred in deciding relocation

before engaging in an analysis of Child’s best interest. Mother asserts that




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the trial court should have conducted both analyses in unison, rather than in

sequence. Mother’s Brief at 18-19.

     When awarding custody, the trial court must determine the child’s best

interest by considering all relevant factors as outlined in 23 Pa.C.S.A.

§ 5328:

     (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) (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.A. § 5328(a).

     In addition, when considering whether to permit a relocation, the trial

court must consider the following factors:

     (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 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.


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      (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.A. § 5337(h).

      In a similar case, we found no error when a trial court denied

relocation and made custody contingent upon whether or not the mother

moved. S.J.S. v. M.J.S., 76 A.3d 541, 544 (Pa. Super. 2013). There, the

mother complained that the trial court should have engaged in a best

interest analysis and then the relocation analysis.     Id. at 549.     However,

because the trial court considered all of the factors of both sections and set

forth a detailed and comprehensive discussion, and because “the two

analyses are not entirely separate,” we held that “it as suitable to engage in

a dual analysis and enter one order.” Id. at 549-50.

      Here, the trial court considered all of the factors and provided an

analysis that thoroughly discussed those factors and considered Child’s best

interest.   T.C.O. at 5-14, 19-25.   After engaging in that analysis, the trial

court issued a single order addressing both issues.           We can find no

authority, and Mother provides none, to suggest that the trial court must

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engage in a section 5328 analysis first. Hence, the trial court did not err in

addressing relocation first in its order.

         Mother next argues that the trial court erred in denying Mother’s

request to relocate.      Mother contends that the trial court did not consider

that the move to Maryland would improve her quality of life and, therefore,

improve Child’s life as well. Mother relies upon better career opportunities

and the ability to spend more time at home as evidence of that

improvement. Mother argues that the court did not give sufficient weight to

her testimony that the schools in Maryland would be able to meet Child’s

needs when the court found that a move would have a negative impact on

Child.    Mother also maintains that the trial court treated Child’s testimony

inconsistently by discounting it in the relocation analysis and giving it some

weight in the best interest analysis.3 Mother’s Brief at 19-28.

         The trial court concluded that, after weighing all the relocation factors,

the move was not in Child’s best interest.         T.C.O. at 15.   The court cited

Child’s special education needs that are well-met in his current school and by

his current psychologist, as well as the emotional distress that Child would

encounter in leaving his familiar environment. Id. Further, the trial court

found Mother’s testimony to be inconsistent with regard to the benefits of a


____________________________________________


3
      Mother makes this same argument in her final issue on appeal. We
address her concerns about the trial court’s weighing of Child’s testimony in
the discussion of her final issue.



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move.     The trial court did not believe Mother’s testimony that her

commuting time would be significantly shorter or that her move was

required by her employer. Id. at 12. The record amply supports the trial

court’s findings. Both Dr. Ingram and Dr. Thomas opined that moving would

be a difficult transition for Child. That Child has shown great progress with

Dr. Ingram and his academic interventions are not disputed. To the extent

that Mother invites us to re-weigh the evidence or re-consider the trial

court’s credibility determinations, we are unable to do so. See D.K., supra.

Given the support in the record for its findings, the trial court did not abuse

its discretion.

      Mother next argues that the trial court erred in not analyzing the

relocation factors when it awarded primary custody to Father if Mother

moved to Maryland. Mother contends that the move to New Jersey would be

a relocation for Child, and that the trial court only discussed the relocation

factors in connection with Mother’s move to Maryland. Mother’s Brief at 30-

34.

      In D.K., supra, the father lived in Pittsburgh while the mother lived in

North Carolina. The father had primary custody of the children. When the

mother filed for primary custody, the father objected that the mother had

not complied with the notice provisions of the relocation statute. D.K., 102

A.3d at 469-70. After conducting a statutory analysis, “we conclude[d] that

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

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triggered.”   Id. at 474.   However, we also held that, when a child would

move a significant distance, the trial court should consider the relevant

relocation factors in its best interest analysis. Id. at 477-78. Although most

of the relocation factors have a counterpart in the best interest factors,

some do not. Specifically, we cited the following factors that are not already

encompassed by the best interest factors:

      the age, developmental stage, needs of the child and the likely
      impact the child’s change of residence will have on the child’s
      physical, educational and emotional development (23 Pa.C.S.A.
      § 5337(h)(2)), the feasibility of preserving the relationship
      between the other parent and the child (23 Pa.C.S.A.
      § 5337(h)(3)), and whether the change in the child’s residence
      will enhance the general quality of life for the child (23 Pa.C.S.A.
      § 5337(h)(7)).

Id. at 477.

      In the instant case, Mother is relocating, but Father has resided at his

New Jersey residence for years, notwithstanding a forced temporary change

in residence due to storm damage to his home. Applying D.K., section 5337

does not apply to Father’s request for primary custody. However, the trial

court was obligated to consider any relevant relocation factors in considering

Father’s custody request.    The trial court analyzed the relocation factors,

focusing upon Mother’s move to Maryland, and the best interest factors,

while also discussing New Jersey, York, and Maryland. Of the three specific

relocation factors that the D.K. Court cited for additional consideration, the

trial court considered Child’s needs and the impact of a change in residence.

The trial court found that any change in residence would have a negative

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impact upon Child because of the change in psychologist and school, and the

diminution of the important role Maternal Grandparents play in Child’s life.

T.C.O. at 8-9. The trial court also found that Father would permit continuing

contact to preserve the relationship between Child and Mother. Id. at 19.

The trial court concluded that any move by Child would not have a positive

impact on his quality of life because of the change to his educational plan,

having to find a new psychologist, additional travel time, and loss of his

friends and significant access to Maternal Grandparents. Id. at 12. The trial

court gave adequate consideration to all the factors that are required by

D.K. The court concluded that it was in Child’s best interest to remain in

York. However, if Mother relocated to Maryland and Child could not stay in

York, the trial court found that it was in Child’s best interest to be with

Father, who will promote Child’s relationship with Mother and Maternal

Grandparents.    The record supports the court’s findings and conclusions.

There is no error of law or abuse of discretion.

      Mother also argues that the trial court erred in awarding partial

custody to Maternal Grandparents. Mother asserts that, pursuant to section

5328(c), the trial court must consider whether a custody award to a

grandparent interferes with the parent-child relationship and whether the

award is in the best interests of the child.       Mother argues that Maternal

Grandparents’ custody interferes with her relationship with Child because

Child does not display his “normal personality and demeanor” when he

returns from his custody with them.           Mother asserts that Maternal

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Grandparents have opposed her move for the purpose of interfering with her

relationship with Child. Mother concludes that the custody award was not in

Child’s best interest. Mother’s Brief at 35-39.

      In considering whether to award partial custody to grandparents who

have standing because the parents are separated or divorced, the trial court

must consider the following in its best interest analysis:

      (i) the amount of personal contact between the child and the
      party prior to the filing of the action;

      (ii) whether the       award   interferes   with   any    parent-child
      relationship; and

      (iii) whether the award is in the best interest of the child.

23 Pa.C.S.A. § 5328(c)(1).

      Here, the trial court considered that Maternal Grandparents had

“played a substantial role” in Child’s early years, providing childcare and

support. T.C.O. at 7. The trial court credited Dr. Ingram’s testimony that

Maternal Grandparents’ involvement with Child is important to him. Id. at

10.   The trial court recognized that Mother and Maternal Grandparents’

relationship is contentious.   Id. at 25.     However, considering all this, the

trial court determined that it was in Child’s best interest to continue to have

court-ordered time with Maternal Grandparents to preserve that important

relationship. Id. at 26. The trial court committed no error of law, because it

considered all of the factors as required by statute.          Further, the record

provides support for the trial court’s findings. The court did not abuse its

discretion.

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      Finally, Mother argues that the trial court erred in not giving weight to

Child’s testimony.    Mother again contends that the trial court reached

inconsistent conclusions from Child’s testimony because, in its relocation

analysis, the trial court found that Child was concerned about moving, but

found the factor to be neutral, and, in its best interest analysis, the trial

court found that Child’s testimony leaned in favor of Maternal Grandparents.

Mother also argues that Child’s testimony demonstrated that he wanted to

spend more time with Mother so the trial court should have concluded that

the relocation, which would have cut down Mother’s commuting time, was in

Child’s best interest. Mother’s Brief at 39-41.

      We find no inconsistencies in the trial court’s consideration of Child’s

testimony. In both analyses, the trial court cited Child’s apprehension about

moving, but ultimately relied upon Dr. Ingram’s opinion that Child’s thoughts

about where he wants to live are too easily swayed by Child’s most recent

custody experience. There is no error in the trial court’s reliance upon the

opinion of Child’s treating psychologist in this regard.      With regard to

relocation, the trial court found that Child expressed reluctance about

moving, which could have weighed against relocation.       However, the trial

court credited Dr. Ingram’s testimony that Child was influenced by his most

recent custodial period, and hence did not give much weight to Child’s

testimony.    In the best interest analysis, the trial court cited that same

testimony from Dr. Ingram, but also credited Child’s testimony that he

wished for time with Maternal Grandparents. The trial court still did not give

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much weight to that testimony, stating that it “weighs slightly in favor of

Maternal Grandparents,” even given the strength of Child’s testimony.

T.C.O. at 22. In both instances, the trial court did not place much weight

upon Child’s testimony based upon the opinion of Dr. Ingram.        The trial

court was entitled to credit Dr. Ingram’s testimony and did not abuse its

discretion in doing so.   Further, we may not reweigh the evidence.     See

D.K., supra.

     Finally, the trial court did not credit Mother’s testimony that the move

to Maryland would reduce her commuting time significantly. T.C.O. at 12.

Therefore, even if the trial court had placed greater weight upon Child’s

testimony that he wanted to spend more time with Mother, it would not have

concluded that the relocation would serve that goal. We may not re-weigh

the evidence.   See D.K., supra.      The record supports the trial court’s

conclusions. There is no abuse of discretion.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/7/2015




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