J-A23045-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.M.N.                                         IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellant

                   v.

S.L.N.

                        Appellee                    No. 338 WDA 2015


                  Appeal from the Order January 27, 2015
            In the Court of Common Pleas of Allegheny County
                 Family Court at No(s): FD-13-007918-002


BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                    FILED OCTOBER 02, 2015

     Appellant, J.M.N. (“Father”) appeals from the order entered in the

Allegheny County Court of Common Pleas, which granted primary custody of

the parties’ children, B.F.N. and S.C.N. (“Children”), to Appellee, S.L.N.

(“Mother”) and granted Mother’s petition for relocation. We affirm.

     Regarding both custody and relocation, the trial court findings present

the relevant facts of the matters in question. Nevertheless, we add a short

summary of the case and procedural history from the certified record for

context.   The parties were married in September 2005 in Pennsylvania,

separated in July 2013, and finalized their divorce in July 2014. The parties

have two minor children of school age; the older child has developmental

challenges with an autism diagnosis. The younger child has also displayed

similar behavior consistent with the same problems.       Mother has taken
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primary   responsibility   for   Children’s   care,   counseling,   therapy,   and

education. In September 2014, Mother was offered a positive, professional

opportunity in West Virginia around the same time she learned that

Children’s Pennsylvania school district was discontinuing B.F.N.’s services.

Given the changed circumstances, Mother filed a petition on September 24,

2014, for relocation to West Virginia. On September 26, 2014, Father filed a

complaint for custody. The parties had previously enjoyed an informal and

cooperative custody arrangement, which deteriorated following the filing of

the relocation petition and custody complaint.         In October 2014, Mother

married S.S. (“Husband”), who works in West Virginia.

     In January 2015, the court held a two-day hearing on custody and

relocation. By order entered January 27, 2015, the court granted Mother’s

petition to relocate and granted Mother primary legal and physical custody of

Children, effective with the commencement of the 2015-2016 school year.

Meanwhile, the court ordered the parties to share legal and physical custody.

     Father timely filed a notice of appeal on February 26, 2015, but he

failed to attach a concise statement of errors complained of on appeal per

Pa.R.A.P. 1925(a)(2)(i). The trial court issued a Rule 1925(a) “statement in

lieu of an opinion” on March 15, 2015, without the benefit of Father’s

statement of issues. On March 25, 2015, this Court ordered Father to file

his Rule 1925 statement, which Father timely filed on April 6, 2015.

     Father raises the following issues for review, which were also included


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in his Rule 1925 statement:

        WHETHER THE [TRIAL] COURT ERRED IN DETERMINING
        THE BEST INTEREST OF THE [CHILDREN].

        WHETHER THE [TRIAL] COURT ERRED IN CONSIDERING
        ALL RELEVANT FACTORS OF 23 PA.C.S.A. SECTION
        5328(A)(1), WHICH PARTY IS MORE LIKELY TO
        ENCOURAGE AND PERMIT FREQUENT AND CONTINUING
        CONTACT BETWEEN THE CHILD AND ANOTHER PARTY,
        AND GIVING APPROPRIATE WEIGHT TO MOTHER’S
        BEHAVIOR.

        WHETHER THE [TRIAL] COURT ERRED WHEN ADDRESSING
        23 PA.C.S.A. SECTION 5328(A)(4), THE NEED FOR
        STABILITY AND CONTINUITY IN CHILD’S EDUCATION,
        FAMILY LIFE AND COMMUNITY LIF[E], IN FINDING THAT
        MOTHER HAS BEEN PRIMARILY RESPONSIBLE FOR
        ENSURING STABILITY AND CONTINUITY IN [B.F.N.]’S
        MEDICAL TREATMENT AND EDUCATION.

        WHETHER THE [TRIAL] COURT ERRED WHEN ADDRESSING
        23 PA.C.S.A. SECTION 5328(A)(10), WHICH PARTY IS
        MORE LIKELY TO ATTEND TO THE DAILY PHYSICAL,
        EMOTIONAL, DEVELOPMENTAL, EDUCATION AND SPECIAL
        NEEDS OF THE CHILD, IN FINDING THAT MOTHER IS BEST
        SUITED TO OVERSEE AND ATTEND TO CHILD’S
        CONTINUING CARE AND TREATMENT.

        WHETHER THE [TRIAL] COURT ERRED WHEN ADDRESSING
        23 PA.C.S.A. SECTION 5328(A)(13), THE LEVEL OF
        CONFLICT BETWEEN THE PARTIES AND THE WILLINGNESS
        AND ABILITY OF THE PARTIES TO COOPERATE WITH ONE
        ANOTHER, IN FAILING TO GIVE APPROPRIATE WEIGHT TO
        MOTHER’S BEHAVIOR AND FINDING THAT CO-PARENTING
        COUNSELING SHOULD ALLEVIATE THE BEHAVIORS OF
        MOTHER.

        WHETHER THE [TRIAL] COURT ERRED WHEN ADDRESSING
        23   PA.C.S.A.   SECTION   5337(H)(2), THE   AGE,
        DEVELOPMENTAL STAGE, NEEDS OF THE CHILD AND THE
        LIKELY IMPACT THE RELOCATION WILL HAVE ON CHILD’S
        PHYSICAL,      EDUCATIONAL      AND    EMOTIONAL
        DEVELOPMENT, TAKING INTO CONSIDERATION ANY

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         SPECIAL NEEDS OF CHILD, IN FINDING THAT MINOR
         CHILD’S NEEDS ARE BEING MET AT HIS CURRENT
         SCHOOL, BUT BELIEVING THAT HIS NEEDS WILL BE MET
         AT HIS PROPOSED SCHOOL.

         WHETHER THE [TRIAL] COURT ERRED WHEN ADDRESSING
         23 PA.C.S.A. SECTION 5337(H)(5), WHETHER THERE IS
         AN ESTABLISHED PATTERN OF CONDUCT OF EITHER
         PARTY TO PROMOTE OR THWART THE RELATIONSHIP OF
         CHILD AND THE OTHER PARTY, IN FAILING TO GIVE
         APPROPRIATE WEIGHT TO MOTHER’S BEHAVIOR.

         WHETHER THE [TRIAL] COURT ERRED WHEN ADDRESSING
         23 PA.C.S.A. SECTION 5337(H)(7), WHETHER THE
         RELOCATION WILL ENHANCE THE GENERAL QUALITY OF
         LIFE FOR CHILD, INCLUDING, BUT NOT LIMITED TO,
         FINANCIAL, OR EMOTIONAL BENEFIT OR EDUCATIONAL
         OPPORTUNITY, IN FINDING THAT THE EDUCATIONAL
         OPPORTUNITIES WILL BE COMPARABLE TO THOSE
         CURRENTLY AVAILABLE AND TO FIND THAT THERE ARE
         MORE SOCIAL, SPORTING AND COMMUNITY RESOURCES
         AVAILABLE FOR CHILDREN IN THE AREA OF RELOCATION.

(Father’s Brief at 10-12).

      In reviewing a child custody order:

         [O]ur scope is of the broadest type and our standard is
         abuse of discretion. This Court 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, this Court must
         defer to the trial judge who presided over the proceedings
         and thus viewed 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.

S.J.S. v. M.J.S., 76 A.3d 541, 547-48 (Pa.Super. 2013) (internal citation

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omitted). Additionally,

        [O]ur Legislature adopted a new Child Custody Act (“Act”),
        effective on January 24, 2011. See 23 Pa.C.S.A. §§ 5321–
        5340. The new Act applies to “disputes relating to child
        custody matters” filed after the effective date of the new
        law. 23 Pa.C.S.A. § 5321. In E.D. v. M.P., 33 A.3d 73,
        76 (Pa.Super. 2011), we held that the Act applied to any
        proceeding, including a petition for relocation, initiated by
        a filing made after the effective date of the Act.

Id. With respect to a custody order, Section 5328(a) provides:

        § 5328. Factors to consider when awarding custody

        (a) Factors.—In ordering any form of custody, the court
        shall determine the best interest of the child by
        considering     all  relevant   factors,  giving    weighted
        consideration to those factors which affect the safety of the
        child, including the following:

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

           (2) The present and past abuse committed by a party
           or member of the party’s household, whether there is a
           continued risk of harm to the child or an abused party
           and which party can better provide adequate physical
           safeguards and supervision of the child.

           (2.1) The information set forth in section 5329.1(a)
           (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.

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

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

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

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

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

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

           (13) The level of conflict between the parties and the
           willingness and ability of the parties to cooperate with
           one another. A party’s effort to protect a child from
           abuse by another party is not evidence of unwillingness
           or inability to cooperate with that party.

           (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 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,


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336 (Pa.Super. 2013), appeal denied, 620 Pa. 710, 68 A.3d 909 (2013). A

court’s explanation of reasons for its decision, which adequately addresses

the relevant custody factors, complies with Section 5323(d). Id.

      The new Act defines “Relocation” as “[a] change in residence of the

child which significantly impairs the ability of a non-relocating party to

exercise custodial rights.”   23 Pa.C.S.A. § 5322(a); C.M.K. v. K.E.M., 45

A.3d 417, 422-25 (Pa.Super. 2012). Section 5337 sets forth the procedures

and factors governing relocation in relevant part as follows:

         § 5337. Relocation

         (a) Applicability.—This section applies to any proposed
         relocation.

         (b)   General rule.—No relocation shall occur unless:

            (1) every individual who has custody rights to the child
            consents to the proposed relocation; or

            (2) the court approves the proposed relocation.

         (c)   Notice.—

            (1) The party proposing the relocation shall notify
            every other individual who has custody rights to the
            child.

            (2) Notice, sent by certified mail, return          receipt
            requested, shall be given no later than:

               (i) the 60th day before the date of the proposed
               relocation; or

               (ii) the tenth day after the date that the individual
               knows of the relocation, if:

                  (A)   the individual did not know and could not

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                    reasonably have known of the relocation in
                    sufficient time to comply with the 60–day notice;
                    and

                    (B) it is not reasonably possible to delay the
                    date of relocation so as to comply with the 60–
                    day notice.

          (3) Except as provided by section 5336 (relating to
          access to records and information), the following
          information, if available, must be included with the
          notice of the proposed relocation:

              (i)    The address of the intended new residence.

              (ii) The mailing address, if not the same as the
              address of the intended new residence.

              (iii) Names and ages of the individuals in the new
              residence, including individuals who intend to live in
              the new residence.

              (iv) The home telephone number of the intended
              new residence, if available.

              (v)    The name of the new school district and school.

              (vi) The date of the proposed relocation.

              (vii) The reasons for the proposed relocation.

              (viii) A proposal for a revised custody schedule.

              (ix) Any other information which the party proposing
              the relocation deems appropriate.

              (x) A counter-affidavit as provided under subsection
              (d)(1) which can be used to object to the proposed
              relocation and the modification of a custody order.

              (xi) A warning to the nonrelocating party that if the
              nonrelocating party does not file with the court an
              objection to the proposed relocation within 30 days
              after receipt of the notice, that party shall be

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              foreclosed from objecting to the relocation.

          (4) If any of the information set forth in paragraph (3)
          is not known when the notice is sent but is later made
          known to the party proposing the relocation, then that
          party shall promptly inform every individual who
          received notice under this subsection.

       (d)    Objection to proposed relocation.—

          (1) A party entitled to receive notice may file with the
          court an objection to the proposed relocation and seek
          a temporary or permanent order to prevent the
          relocation.   The nonrelocating party shall have the
          opportunity to indicate whether he objects to relocation
          or not and whether he objects to modification of the
          custody order or not. If the party objects to either
          relocation or modification of the custody order, a
          hearing shall be held as provided in subsection (g)(1).
          The objection shall be made by completing and
          returning to the court a counter-affidavit, which shall be
          verified subject to penalties under 18 Pa.C.S. § 4904
          (relating to unsworn falsification to authorities), in
          substantially the following form…

                                  *     *   *

       (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 physical, educational and emotional
          development, taking into consideration any special
          needs of the child.


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           (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.A. § 5337(a)–(d) (h). Moreover,

        [T]he party proposing relocation…bears the burden of
        proving relocation will serve the children’s best interests.
        See 23 Pa.C.S.A. § 5337(i). Each party, however, has the
        burden of establishing “the integrity of that party’s motives
        in either seeking the relocation or seeking to prevent the
        relocation.” 23 Pa.C.S.A. 5337(i)(2).

S.J.S., supra at 551. In all of these proceedings:

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

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

R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa.Super. 2009) (internal

citations omitted).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Susan

Evashavik DiLucente, we conclude Father’s issues merit no relief. The trial

court comprehensively discusses and properly disposes of the questions

presented. (See Trial Court Opinion, filed March 30, 2015, incorporating its

Findings of Fact and Order, filed January 27, 2015, at 1-12) (examining each

relevant factor under applicable statutes; concluding custody and relocation

decisions are in Children’s best interests).   Accordingly, we affirm on the

basis of the trial court’s opinion, incorporating its January 27, 2015 Findings

of Fact and Order.

      Order affirmed.



Judgment Entered.




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Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/2/2015




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