J-A03028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    T.H.                                     :   IN THE SUPERIOR COURT OF
                                             :        PENNSYLVANIA
                                             :
                                             :
                     v.                      :
                                             :
    T.H. N/K/A T.D.                          :
                                             :
                          Appellant          :   No. 2620 EDA 2017


                  Appeal from the Order Entered July 14, 2017
     In the Court of Common Pleas of Lehigh County Civil Division at No(s):
                                2015-FC-0976

BEFORE:         GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.

MEMORANDUM BY McLAUGHLIN, J.:                            FILED APRIL 10, 2018

           In this custody case, T.H. n/k/a T.D. (“Mother”) appeals from the order

awarding primary physical custody of the parties’ minor daughter, A.H.

(“Child”), to T.H. (“Father”); partial physical custody to Mother; and shared

legal custody to Father and Mother. Mother raises ten issues on appeal that,

in general terms, challenge the sufficiency of the evidence and the weight the

trial court accorded various aspects of the evidence. We affirm.

           The parties are the biological parents of Child, born in Bethlehem,

Pennsylvania in December 2011. Mother and Father were married but

eventually separated, and later divorced. Mother has two other daughters,

ages 17 and 11. While the family was on vacation in Florida in 2013, Mother

decided to remain there with Child and her daughters. Father returned home

to his job and his other daughter in Pennsylvania. Four months later, Mother

returned to Pennsylvania for a while, and then in February 2015 moved to
____________________________________
*    Retired Senior Judge assigned to the Superior Court.
J-A03028-18



Georgia with Child and her daughters, where X.D. (“Stepfather”) was

stationed in the Army. However, two months later, in April 2015, Child and

Mother's other two children returned to Pennsylvania; Mother remained in

Georgia. Stepfather then received orders to relocate to El Paso, Texas.

      In anticipation of Mother’s relocation to El Paso, in July 2015, Father

initiated the instant custody action. Following a court conference, the parties

agreed to share legal custody of Child, but to alternate physical custody by

exchanging Child every three months. Typically, the parties would each drive

to a central meeting point in Arkansas, where they would make the exchange.

      In December 2015, Father filed a contempt petition against Mother,

asserting, among other things, that she had violated the custody arrangement

by failing to return Child on time in December 2015. Following a conference,

Father agreed to withdraw the petition in exchange for “make-up” custody

time. The court ordered the parties to submit Child and themselves to a

counseling program in Allentown “for purposes of addressing the minor child’s

separation issues.” Order, 12/23/15, at ¶ 8.

      Mother and Father then operated under the shared custody agreement

until October 2016, when Mother filed a petition to modify custody in

anticipation of Child starting kindergarten in mid-2017 (according to Mother,

the academic year in Texas starts at the end of July). The court held a hearing

on Mother’s petition on July 13, 2017, at which the parties presented evidence

of the following.




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      Mother lives in Texas with Stepfather, whom she married in February

2017, and her two other daughters, ages 17 and 11, who have known Child

since her birth. Mother is a certified nurse’s assistant and is currently in a 20-

month program to become an occupational therapy assistant. Stepfather

retired from the Army in 2017 and receives retirement and disability pay.

Stepfather has custody of his two biological children, approximately 7 and 9

years old, during all summer vacations and some winter vacations. Other than

her children, Mother has no close relatives near El Paso. Mother has been

married four times. Child has positive bonds with Stepfather and her half-

siblings in Texas.

      Mother testified that if she was given primary physical custody, Child

would attend a nearby kindergarten from 7:30 a.m. until 2:30 p.m., and would

not need daycare because Stepfather would be home to care for her while

Mother is at school and work. Stepfather, however, testified that he intended

to enroll in a 24-month information technology program and would be

attending classes from 8 a.m. until 12 p.m., Monday through Thursday, with

online courses only on Fridays.

      Father lives in Pennsylvania and works Sunday through Wednesday as

a forklift operator. Father has been married only once (to Mother), and has

one other biological child, who is approximately 9 years old. He has custody

of his other child Thursday through Sunday. Father has been dating his

girlfriend, K.R., since Spring 2016. K.R. has her own home, but stays almost




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every night at Father’s home. She has a 3-year-old son, works from home

full-time as a medical coder, and is working towards a master’s degree.

      Father testified that, if given primary custody, Child would attend a

nearby full-day kindergarten at the same elementary school as Father’s older

child. Paternal grandparents testified that they have assisted Father with

childcare and will continue to do so. Father also has a brother and uncle who

live nearby. When Child is in Father’s custody and Father is at work, Child is

usually in daycare.

      Child has allergies and asthma and Mother contended that Child

breathes better in Texas than in Pennsylvania. Mother testified that in April

2017, Child’s allergies caused her tonsils to become enlarged. Mother stated

that although the situation was not an emergency, she did not trust Father to

take care of the issue while Child was in Pennsylvania. She said that she

attempted to inform Father that Child was to undergo a tonsillectomy, but

Father did not respond. She stated that his failure to reply delayed the removal

of Child’s tonsils, which in turn delayed medical clearance for Child to travel

to Pennsylvania, and ultimately resulted in Child’s returning late to Father.

Mother argued the exchange was further pushed back by Father’s delay in

providing Mother with the name of the allergist who would be administering

Child’s allergy shots in Pennsylvania. Mother corroborated her account with

evidence of her attempts to communicate with Father about this issue, as well

as her attorney’s communication with Father’s attorney when she received no

response.

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      Father, however, testified that Mother did not tell him about Child’s

tonsillectomy until the night after the surgery. As for the allergist, Father said

that he had difficulty scheduling an appointment because it took a week for

the Texas allergist to fax Child’s records, and the Pennsylvania allergist did

not believe Child needed the treatment. Father said that he did not remember

receiving the text messages or e-mails from Mother requesting the parties

speak about Child’s medical condition. Father presented his response to

Mother in which he provided the name of the allergist in Pennsylvania and

confirmed that he had scheduled an appointment.

      Mother testified that Child attends weekly counseling while she is in

Mother’s care. Mother claimed that “[Child’s] physician in Texas felt that since

she goes between Pennsylvania and Texas every three months, that is a lot

of adjustment for a child, so he wanted her to have an outlet that was outside

all of us.” N.T., 7/13/17, at 35. Mother said that Father did not enroll Child in

counseling until a year after the court ordered him to do so.

      Mother explained the circumstances surrounding Father’s 2015 petition

for contempt as follows. Mother said she did not return Child in December

2015, so that Child could participate in a school holiday recital, and by

agreement of the parties, Father received make-up custody time. Mother

acknowledged that the same issue arose in 2016, but claimed Father again

agreed to the late exchange so Child could participate in a recital.

      Mother and Father presented the trial court with competing custody

arrangements. Mother proposed that Child would reside with her during the

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school year, and fly to Pennsylvania to reside with Father for two weeks every

nine weeks, as well as during school breaks, including Thanksgiving break,

winter break, and summer vacations. According to Mother, because the Texas

school has longer breaks than the school in Pennsylvania, her arrangement

would afford Father custody for 109 days during the calendar year. Mother

contended that in contrast, if Child resided with Father in Pennsylvania during

the school year, Mother would only have custody of Child for 67 days of each

calendar year. Father proposed that he have primary custody of Child during

the school year, and that Child visit Mother during the summer, winter,

Thanksgiving, and spring breaks, and whenever Mother is in the Allentown

area.

        At the conclusion of the hearing, the court awarded Father primary

physical custody of Child, gave Mother partial physical custody during Child’s

summer and spring breaks, and half of each winter vacation, and awarded

shared legal custody. In its Pa.R.A.P. 1925(a) opinion, the court explained

that it found that Father is more likely to encourage contact between Mother

and Child, and that Mother has violated the custody schedule on several

occasions. The court found Mother’s credibility to be suspect, in part because

Stepfather had contradicted Mother’s testimony that he would be at home to

care for Child. The Court also noted that Mother admitted that the frequent

custody exchanges had spurred the need for Child’s therapy. The court also

found that Father offered Child a more stable life than Mother:




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      Father is established in the Allentown/Bethlehem area with a
      steady job, another daughter [of] whom he has partial custody,
      extended family and a girlfriend with an established job and child.
      Mother is not established in El Paso. Her husband, [Stepfather], is
      not employed; he receives disability. He plans to attend college,
      but there is no basis to believe he cannot do so elsewhere and
      have the same educational and occupational opportunities
      available to him as in El Paso. Mother is changing her job and
      profession. She, too, attends school in El Paso, but there is no
      basis to believe she cannot do so elsewhere and have the same
      educational and occupational opportunities available to her as in
      El Paso. Neither Mother nor [Stepfather] have any extended family
      in El Paso.

Trial Ct. Op. at 15. Based on its findings, the trial court concluded that it was

in the best interest of Child to reside primarily with Father.

      Mother filed this timely appeal and raises the following issues:

      I.     Did the [t]rial [c]ourt err in granting primary physical
             custody of [C]hild to [Father] premised on the assumption
             that it would not be in the best interest of [C]hild for a
             custodial exchange to occur every [n]ine (9) weeks vi[s]-a-
             vis flight when, in fact, the parties have been exchanging
             custody every [n]inety (90) days by automobile travel with
             no adverse effects whatsoever to [C]hild?

      II.    Did the [t]rial [c]ourt, in deciding primary custody as it did,
             improperly reward [Father] for his continued failure to
             respond to the timely, repeated efforts by [Mother] to
             discuss the absolute need of the [C]hild for injection therapy
             which caused such therapy to be delayed and for the [C]hild
             to remain at risk of becoming seriously ill?

      III.   That in rendering the decision in this case, did the [t]rial
             [c]ourt fail to give proper consideration and weight to the
             fact that [C]hild has [t]wo (2) half-sisters in Texas [] whom
             she has known since birth and with [whom] she interacts
             every single day while there and with whom [C]hild has a
             significant bond?

      IV.    That in arriving at the conclusion that [Father] should be
             awarded primary physical custody, did the [t]rial [c]ourt fail
             to consider and/or give sufficient weight to the fact that

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J-A03028-18


            although both parties were previously ordered to do so, it
            was the [M]other who enrolled the minor child in counseling
            and [F]ather delayed in doing so?

     V.     That in deciding that [F]ather should have primary physical
            custody, did the [t]rial [c]ourt fail to consider and/or assign
            sufficient weight to the fact that [C]hild had already
            commenced her education in the State of Texas and that
            [Mother] was very much familiar with her instructors and
            the school itself while the [Father] did nothing in such
            regard?

     VI.    Did the [t]rial [c]ourt err in failing to properly consider
            and/or give sufficient weight to the fact that the entire
            medical care team of [C]hild has been, and remains, in
            Texas, that [M]other was instrumental in establishing same
            and was quite familiar with all of the providers and that the
            [M]other was likewise in contact with and familiar with the
            very few medical providers in Pennsylvania who have seen
            [C]hild to date?

     VII.   That in granting [F]ather primary physical custody of the
            subject child, did the [t]rial [c]ourt act contrary to its
            theretofore stated policy of maximizing the amount of time
            [C]hild should spend with each parent, an arrangement
            which could have easily been effectuated through the
            proposal advanced by [M]other?

     VIII. Did the [t]rial [c]ourt err by failing to recognize that it was
           the failure to timely respond on the part of the [F]ather to
           the repeated requests by [Mother] to discuss medical issues
           pertaining to [C]hild which led to the delay in [C]hild being
           returned to Pennsylvania this Summer, which, in turn,
           compromised [M]other who, on one hand, was obligated to
           follow the [o]rder of [t]rial [c]ourt but, on the other hand,
           had legitimate concerns over the ability of the [F]ather to
           follow-through with necessary medical care needed by the
           [C]hild?

     IX.    Did the [t]rial [c]ourt place undue weight upon the fact that
            prior contempt proceedings were initiated by the [F]ather
            while failing to recognize that no actual finding of contempt
            was ever made against [M]other and that such prior
            proceedings were resolved via agreement between the
            parties?

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J-A03028-18


      X.    Did the [t]rial [c]ourt err by failing to place proper weight
            on the false testimony by [F]ather that he never agreed to
            [M]other and [C]hild relocating to the [s]tate [o]f Florida
            when, in fact, he executed a document evidencing his
            agreement in such regard?


Mother’s Br. at 5-8 (suggested answers omitted; emphasis in original).

      In reviewing a custody order, our scope of review is plenary and our

standard is abuse of discretion. V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa.Super.

2012). We accept the trial court’s factual findings so long as competent

evidence of record supports them; we do not make independent factual

determinations. Id. 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. Id. 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. Id. 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. We may reverse only if, giving due deference to

the trial court’s weight and credibility determinations, we conclude that the

trial court committed an error of law or an abuse of discretion. Hanson v.

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

      Mother first asserts that the trial court erred in concluding that frequent

custody exchanges would not be in Child’s best interests. She asserts that the

court incorrectly assumed that the parties could not afford for Child to fly back

and forth, when she testified that she would pay Child’s airfare and presented

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J-A03028-18



testimony regarding Stepfather’s income. Mother claims the trial court

erroneously assumed that Child was in counseling solely due to difficulty in

adjusting to the frequent custody exchanges. Rather, according to Mother’s

testimony, Child was in counseling so she would have “someone to discuss

things that she does not wish to discuss with her parents and . . . to assist her

in ways that her parents simply cannot.” Mother’s Br. at 20. Mother states

that custody exchanges had been taking place primarily by automobile every

three months, and Child has not found adjusting to the time difference to be

difficult.

       Mother next argues that the trial court erred in awarding Father primary

physical custody because he does not cooperate with Mother regarding Child’s

medical care, resulting in delays. Mother asserts that the trial court did not

consider Father’s failures in this regard, despite Mother’s introduction into

evidence of supporting correspondence, and Father’s testimony that he did

not know why he did not respond. Mother also argues that Father did not

contradict her testimony that Child did not have any dental care while she was

in Father’s custody, resulting in seven cavities.

       Third, Mother asserts that the trial court failed to give adequate weight

to Child’s relationships with her two half-siblings who reside with Mother.

Mother notes that the trial testimony that Child has known her two half-

siblings since birth and has contact with them on a daily basis while in Mother’s

care. Mother states that, conversely, there was no testimony regarding Child’s




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relationship with Father’s other child, who is in Father’s custody only four days

a week.

      Fourth, Mother argues that the court did not give sufficient weight to

the fact Father delayed enrolling Child in counseling in Pennsylvania, even

though the court ordered both parties to do so. Father testified at trial that he

called the office in an attempt to schedule therapy, but never received a

response. In addition, Mother testified that she proactively enrolled Child in

counseling in Texas.

      Next, Mother argues that the trial court failed to give proper

consideration that Child has attended pre-school and pre-kindergarten in

Texas, and Mother is familiar with the instructors and school Child would

attend if Mother had primary custody. She asserts that the trial court failed to

recognize that “[Mother] is the one who has been fully invested in the

schooling of [C]hild.”

      In her sixth issue, similar to her second and fourth, Mother argues that

court did not give due consideration to the fact that she has been more

responsible for Child’s physical and mental health needs.

      In her seventh issue, Mother argues that the trial court erred in

awarding primary physical custody to Father because it was contrary to the

trial court’s previously expressed policy of maximizing the amount of time

Child would spend with each parent. According to Mother, placing Child with

her would maximize the time Child would spend with her parents, as Child

would visit Father for a two week period every nine weeks during the school

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year, in addition to holidays and summer vacation, whereas Mother will

receive less custody time if Child resides in Pennsylvania during the school

year. Mother does not argue that maximizing time with both parents is a

statutory factor that the court must consider when deciding custody matters,

but that the court was obligated to discuss the possible effect of any proposed

transfer of custody, and that the trial court erred by failing to engage in such

a discussion.

      In her eighth issue, Mother argues that the trial court erred when it

blamed Mother for failing to exchange physical custody of Child, when she did

so out of concerns for Child’s health needs and Father’s failure to discuss them.

Mother repeats her references to Father’s lack of response regarding Child’s

tonsil removal and immunotherapy injections, which resulted in Mother’s

scheduling the tonsil removal on a date after a custody exchange should have

occurred.

      Similarly, in her ninth issue, Mother argues that the trial court placed

undue weight on the fact that Father had initiated contempt proceedings

against Mother. According to Mother, the court gave too great of weight to the

contempt petition, when she had returned Child to Father late so that Child

could participate in a school Christmas recital, which, according to Mother,

was mandatory; Father withdraw the petition and the court made no finding

of contempt; and Father received “make-up” custody time by agreement.

      Finally, Mother contends that the trial court erred in crediting Father’s

testimony that Mother had relocated to Florida with Child without Father’s

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agreement, when Mother presented evidence that Father had agreed to the

relocation.

      Mother is due no relief. The primary concern in any custody case is the

best interests of the child. “The best-interests standard, decided on a case-

by-case basis, considers all factors that legitimately have an effect upon the

child’s physical, intellectual, moral, and spiritual wellbeing.” Saintz v. Rinker,

902 A.2d 509, 512 (Pa.Super. 2006) (quoting Arnold v. Arnold, 847 A.2d

674, 677 (Pa.Super. 2004)).

      In awarding custody, a court must determine the best interest of the

child after considering all relevant factors, including certain statutory factors:

      (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.


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            (5) The availability of extended family.

            (6) The child’s sibling relationships.

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

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

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

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

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

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

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

            (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(a).

      In a custody case where neither parent is relocating, but the children

stand to move a significant distance, trial courts should consider the relevant

relocation factors of 23 Pa.C.S. § 5337(h) in their Section 5328(a) best

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interests analysis. D.K. v. S.P.K., 102 A.3d 467, 476 (Pa.Super. 2014).

Section 5337(h) provides:

     (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.

         (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.



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          (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).

      Mother’s issues in this appeal are interrelated and we will therefore

address them together. Her arguments generally amount to an attack on the

trial court’s assessment of the custody factors. For example, she argues that

the court did not sufficiently consider her complaints about Father’s failure to

cooperate and communicate regarding Child’s medical care. However, the

court had the authority to resolve the conflicting testimony on this point in

Father’s favor. Mother’s also asserts that the court failed to consider Child’s

relationship with Mother’s two other children. To the contrary, the court did

consider these relationships (as well as Child’s relationship with her other half-

sibling), but simply did not give this factor as much weight as Mother would

have preferred.

      Mother’s arguments at bottom invite us to find different facts, re-weigh

evidence, and re-assess credibility. This we cannot do. Here, the trial court

listed in its Pa.R.A.P. 1925(a) opinion all of the Section 5328(a) custody

factors, as well as the Section 5337(h) relocation factors, and analyzed all of

those factors based on the evidence of record. As the trial court’s findings and

determinations regarding the custody and relocation factors set forth in

Sections 5328(a) and 5337(h) are supported by competent evidence in the

record, we will not disturb them.

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      Last, we address Mother’s complaint that the trial court’s award was

error as it did not maximize the amount of time Child could spend with each

parent while maintaining a single educational environment. Mother argues the

court failed to discuss the possible effects of the custody arrangement, and in

support cites E.A.L. v. L.J.W., 662 A. 2d 1109, 1117 (Pa. Super. 1995).

However, we decided E.A.L. before the enactment of the Section 5328(a)

custody factors, and therefore our decision there is of limited value here.

Further, while E.A.L. instructs that courts should “fully discuss” the effects

that transferring custody may have on a child, this Court has more recently

explained that no particular amount of detail is required when discussing the

section 5328(a) factors. See A.V. v. S.T., 87 A.3d 818, 823 (Pa.Super. 2014).

      Regardless, even applying E.A.L. to the instant matter, the trial court’s

discussion of the effect a change in custody might have on Child was more

than sufficient. The trial court carefully examined the evidence before it and

considered the impact that the parties’ proposed custody schedules would

have on Child before entering the final custody order. The court emphasized

that it had designed its custody order, in part, to reduce the amount of travel

that Child would face, and to provide primary custody to Father, as it found

these to be in Child’s best interest. Mother in fact acknowledges the court was

not required to maximize Child’s time with each parent, but to arrange custody

in a manner that was in Child’s best interests. E.A.L. affords no basis on which

to disturb the custody order.

      Order affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/10/18




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