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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
J-A23045-15


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


                                       -2-
J-A23045-15


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

                               -3-
J-A23045-15


         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

                                     -4-
J-A23045-15


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.

                                    -5-
J-A23045-15



           (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,


                                    -6-
J-A23045-15


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

                                     -7-
J-A23045-15


                    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

                                      -8-
J-A23045-15


              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.


                                      -9-
J-A23045-15


           (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:

                                    - 10 -
J-A23045-15


         [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.




                                    - 11 -
J-A23045-15




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/2/2015




                          - 12 -
                                                                                    Circulated 09/21/2015 03:41 PM




         IN THE COURT OF COMMON                    PLEAS OF ALLEGHENY COUNTY~ PENNSYLVANIA
                                                    FAMILY DIVISION


      J.N.                                                 No. FD l 3-007918-002
                                      Plaintiff,
                                                           Superior Court# 338 WDA 2015
                    v.                                     CHILDREN'S FAST TRACK

      S.N.                                                 STATEMENT IN LIEU OF OPINION
                                                           PURSUANT TO Pa. R.A.P. 1925(a)

                                      Defendant.
                                                           BY:

                                                           JUDGE SUSAN EV ASHA VIK DI LUCENTE
                                                           704 City County Building
                                                           414 Grant Street
                                                           Pittsburgh, PA 15219


                                                           COPIES TO:

                                                           Counsel for Plaintiff:

                                                           Sandra McPherson, Esquire
                                                           319 Maryland Avenue, Suite D
                                                           Oakmont, PA 15139


                                                           Counsel for Defendant:

                     (f)                                   David M. Charles, Esquire
             t.n
             ~
                     oz:f
                    .1:~c.,
                     o;]i>-                                436 Boulevard of The Allies
             N       1:...:.-i--
                                                           Suite 500
0
w
             x:
             a...    t~~·;r_,                              Pittsburgh, Pa. 15219
                           .~.: ~t-
__J          C)

-LL          M
             0:::
             ~       i'.:-s~
         2C          l ·_Lil
         I.()        f.:.:2:::i
                     5U<t
                                                                   Circulated 09/21/2015 03:41 PM




  IN THE COURT OF COMMON          PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
                                   FAMILY DIVISION

J.N.,
                                               FD-13-007918-002
                     Plaintiff,
              v.                              Superior Court# 338 WDA 2015

S.N.,

                     Defendant.               CHILDREN'S FAST TRACK



           STATEMENT IN LIEU OF OPINION PURSUANT TO Pa. R.A.P. 1925(al

 Evashavik Dilucente, J.                                            March 30, 2015

         Following a custody and relocation trial on January 15 and January 23,

 2015, this Court filed Findings of Fact and an Order of Court dated January 27,

 2015, granting Defendant S.N. ("Mother") 's relocation request and awarding her

 primary custody effective with the 2015-2016 school year. On February 26, 2015,

 Plaintiff J.N. ("Father") filed a Notice of Appeal from that order. While Father's

 appeal is a children's fast track appeal, he neglected to include a statement

 advising the appellate court of the same, pursuant to Pa.R.A.P. 904(f). Father

 also failed to file a Concise Statement of Errors Complained of on Appeal. as

 required by Pa.R.A.P. 1925(a)(2)(i). See also Pa.R.A.P. 905(a)(2) ("If the appeal is

 a children's fast track appeal. the concise statement of errors complained of on

 appeal as described in Rule 1925(a)(2) shall be filed with the notice of appeal ..

 . "}.
                                                                    Circulated 09/21/2015 03:41 PM




                                                                   FD 10-00467 6-002



        Failure to comply with the requirements of Pa.R.A.P. 904(f), 905(a)(2), and

1925(a)(2)(1) is not per se grounds for dismissal or quashal of appeal.    See In re:

K.T.E.L., 983 A.2d 745, 747R48 (Pa. Super. Ct. 2009). Rather, the disposition of

cases wherein the foregoing rules have been ignored is made on a case-by-

case basis. See id. at 747. This Court sees no reason to further comment on

Father's procedural omissions due to the existence of the Court's previously filed

Findings of Fact and Order of Court, which set forth the Court's rationale for

entering the order Father now challenges.

        Accordingly,   pursuant to Pa.R.A.P. 1925(a), the Findings of Fact and Order

of Court dated January 27, 2015, copies of which are attached hereto, shall

serve as this Court's opinion with respect to Father's present appeal.



                                               BY THE COURT:




Dated   :_J 3_0_( _lS_
            ...._l


                                               Susan Evashavik Dilucente




                                           2
                                                             Circulated 09/21/2015 03:41 PM




IN THE COURT OF COMMON      PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
                             FAMILY DIVISION



                                    No. FD 13-007918-002

              Plaintiff,

   v.                               FINDINGS OF FACT
                                    AND ORDER OF COURT


                                    BY:
               Defendant.
                                    JUDGE SUSAN EVASHAVIK DILUCENTE
                                    704 City County Building
                                    414 Grant Street
                                    Pittsburgh, PA 15219


                                    COPIES TO:

                                    Counsel for Plaintiff:

                                    Sandra McPherson, Esquire
                                    319 Maryland Avenue, Suite D
                                    Oakmont, PA 15139


                                    Counsel for Defendant:

                                    David M. Charles, Esquire
                                    436 Boulevard of The Allies
                                    Suite 500
                                    Pittsburgh, Pa. 15219
                                                                       Circulated 09/21/2015 03:41 PM




   IN THE COURT OF COMMON          PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
                                    FAMILY DIVISION



                      Plaintiff,                     No.: FD 13-007918-002
      v


                      Defendant.


                                   FINDINGS OF FACT

      AND NOW, to wit, this    J7t' day of __J1:~.,..-·         , 2015, following
January 15 and 23, 2015 trial in the above captioned matter, this Court being

required to "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" pursuant to 23 Pa. C.S.A. § 5328(a), hereby makes the following

findings:

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

      The Court finds that Father is slightly more likely to encourage and permit

frequent and continuing contact between the children and the other parent.

Prior to the commencement of the subject litigation, the parties amicably and

privately resolved their custody arrangements. Neither party filed an action for

custody or sought legal intervention on any custodial issue. The parties agreed

that generally the weekly custody divisionwas 2 nights at Father's home and 5


                                            1
                                                                       Circulated 09/21/2015 03:41 PM




nights at Mother's home. Father testified that he also saw the children almost

daily, after school or at dinner. Mother denied that this extra contact was

consistent or daily. Regardless of the precise schedule, however, the parties

were obviously satisfied with their custody arrangement.     They cooperated       with

each other and promoted the children's contact with one another. This

arrangement     worked well and both parties maintained strong loving bonds with

the children.

       Once the subject litigation commenced,      the parties' relationship

deteriorated.   Mother did deny Father additional custody time. While the Court

does not condone this behavior, the Court believes that Mother was anxious

about the impending trial and did not wish to change the status quo, as she

defined it. While legal posturing is not in the children's best interests. the Court

believes this behavior will cease with the conclusion of the subject litigation.

       (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.

      This factor is not applicable.

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

      The Court finds that the parties are equally capable of fulfilling their

parental duties.

      (41 The need for stability and continuity in the child's education, family life
      and community life.




                                           2
                                                                      Circulated 09/21/2015 03:41 PM




       Both parents provide stability and continuity in the children's life. Mother,

however, has been primarily responsible for ensuring stability and continuity in

B,f.N:s medical treatment and education.
       (5) The availability of extended family.

      Both parents have extended family available, who have developed close

bonds with the children. Mother's family is in West Virginia, but they see the

children on a regular basis.

       (6) The child's sibling relationships.

      The subject children are closely bonded and have no other siblings.

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

      Not applicable due to the age of the children.

      {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.

      This factor is inapplicable.

      (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.

      The Court believes that both parents will maintain loving, stable,

consistent, and nurturing relationshipswith the children.

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

      Mother has been primarily responsible for attending to the children's

medical, developmental, and educational needs. Fathertestified that the


                                           3
                                                                           Circulated 09/21/2015 03:41 PM




parties worked as a team. He contended that while Mother was the primary

contact for ,S.t.N.';third party providers, he was actively involved in the child's

treatment.        While this situation develops for many married couples, the pertinent

fact remains that Mother has always been primarily responsible for these needs

of the children.

         The testimony clearly and unambiguously revealed that Mother has been

!?>J). !,'1 primary   medical and educational   caretaker.   Mother is the parent who

educated herself in B.f.r'1.'s condition and researched the services available for

him. Mother oversaw and participated            in those services, and aggressively

advocated for the provision of the same. The Family Behavioral Resource

records and other exhibits clearly reflect Mother's primary role in this regard.

        This Court is not finding that Father was apathetic or disinterested in (:f N.'5

care. Rather, he assumed a more passive role. Nevertheless, the reality is that

Mother is better situated to oversee and attend to b.F.t.l.'.scontinuing care and

treatment.        Likewise, Mother testified that .S.C.r,'.has exhibited some concerning

behavior and she is seeking services on his behalf as well. As with        0.f.~.J this Court
believes that Mother will take a more proactive role in serving 5.t..N:~ special

needs, if any, than Father.

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

        The parties currently live close enough to each other that they can easily

exchange custody.           Mother's proposed relocation is discussed below.

        ( 1 2) Each party's availability to care for the child or ability to make
        appropriate child-care arrangements.

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       Overall, both parties' work schedules permit them adequate time to care

for the children.   In addition, both parties have family members to assist them

with child-care.

       ( 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.

       Most custody disputes entail some level of conflict between the parties. It

appears to this Court that the parties cooperated with each other until Mother

remarried.   This is not unusual, and the conflict may have abated over time.

Here, however, the conflict was exacerbated         by Mother's decision to relocate.

While the conflict should lesson upon the conclusion of this litigation, Mother

must repair her relationship with Father.

       Mother and her husband, ·      '5 . 5 ,        have taken the position that

Father is hostile and volatile.    S.S.          refusesto communicate with Father,

and testified that he would only contact him in an emergency. Mother testified

that she is fearful and reluctant to communicate with Father. This position is not

supported by the evidence. The parties had a strong relationship prior to

Mother's remarriage. Father's efforts to meet and discuss parenting, etc. with

Mother's husband were reasonable.

       This Court believes that rather than attempt to encourage a relationship

between her husband and Father, Mother has elected to "choose" her

husband's side in this rift. There is no reasonable basis for this rift, and the Court

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finds that its development    was caused by Mother's husband. If Mother does not

remedy this problem, the children will be adversely affected.     The Court

believes that co-parenting     counseling, which is ordered below, should alleviate

this conflict.

        {14) The history of drug or alcohol abuse of a party or member of a party's
        household.

        The Court finds that this factor is inapplicable.

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

        The Court finds that this factor is inapplicable.

        ( 16) Any other relevant factor.

        The Court finds that this factor is inapplicable.

        ln sum, both parents have strong loving relationships with the children and

are capable of meeting their general needs. Mother, since her remarriage, has

been less cooperative     and communicative      with Father. Mother, however, has

proven herself to be more proactive and involved with the children's medical

and educational      needs. If Mother was not relocating, this Court would order

that the parties share custody.

        Because Mother has filed a relocation petition, this Court has evaluated

the evidence in light of 23 PA.C.S.A. 5337(h), which provides as follows:

               (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:



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        ( 1 l 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.

       The Court finds that both parties have strong and loving

relationships with the children. As stated above, however, Mother has

been primarily responsible for taking care of       Bf r-.!.~special needs. Mother
is the party responsible for getting the child evaluated and diagnosed.

Mother is the party who pursued therapy and obtained appropriate

services for the child. It is Mother who obtained medical assistanceand

attended most of the evaluations and therapy sessions. Mother played

this role both during the marriage and after separation.

      While parents often share caretaking responsibilitiesand operate as

a team, this Court believes that Father's participation has always been

more passive. This Court is not finding that Father has played no role in this

area; he has attended and participated in some evaluations and therapy

sessions. Nevertheless, Mother is the parent who actively pursues and

investigates services. Father participates after Mother has done the

groundwork. Mother is clearly more knowledgeable and versed in the

child's condition and treatment.


       (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.

      B.~J. is currently in first grade, while 5.c..w. is in kindergarten.   Every witness
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 testified thafBf.iJ.mas made tremendous progress in the last 6 months.         He is

 doing extremely well in school, his communication       skills have vastly improved,

 and he has a strong bond with his TSS. In large part, this improvement has

occurred because of Mother's advocacy and persistence in obtaining

necessary services. Mother has made career and financial sacrifices to attend

to,s.r. r-i,'s needs.

        Mother testified that the County to which she proposes to relocate offers

better services forBJJ .., both in the community and in school. Mother's expert

witnesses from West Virginia were related to her and did not have sufficient

expertise to testify as to the proposed school the child would attend. This Court

finds that   13.v'.~.'s needs are being met in Plum School District. The Court also
believes that his needs will be met in the proposed school. However, the Court

does not believe it prudent to change the child's school and servicesmid-year.

The child is flourishing in school and is attached to his TSS, who has provided

therapy to him for 3 years. Therefore, Mother shall not be permitted to relocate

with the children until the conclusion of this school year.

        (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.

        This Court finds that suitable custody arrangements can be made to

preserve Father's relationship with the children. The parties will only be a l 1h

hour drive apart. Although Father will not be able to see the children with the

same frequency as he currently does, he will have regular and frequent contact

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with them.


       (4) The child's preference,    taking into consideration the age and
       maturity of the child.

       The Court did not interview the children.

       ( 5l Whether there is an established pattern of conduct of either
       party to promote or thwart the relationship of the child and the
       other party.

       Father testified that since the litigation started, Mother has refused

to give him extra custody time. As set forth above at Custody Factor #1,

this Court finds merit to his claim. Overall, however, the Court does not

believe that Mother's conduct in this regard rises to the level of a pattern.

       This Court does caution Mother, however, to ensure that this pattern

does not develop. Both parties shall actively encourage and promote the

children's relationship with the other parent. Mother's husband may be a

wonderful support systemfor her, but he is not the children's father. It is

readily apparent to the Court that I     5. S .     : desires to have no

contact with Father. Mother admitted this fact, and she appears to

accept the situation. More troubling is that Mother appears to be

following the same path. She has decreased her communication with

Father and testified that their relationship is businesslike.

       Mother should be putting extra effort into her own relationship with

Father. Mother must promote and facilitate the relationship between her




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 husband and Father. This Court believes that the conclusion of the

subject litigation and co-parent counseling will achieve these goals.

       (6) Whether the relocatjon 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.


       The Court believes the relocation will improve the quality of the

Mother's life. Mother will be making more money and working less hours.

She will have greater resources and more time to spend with the children.

Mother is remarried and desires to live with her husband, who also has a

loving relationship with the children. Finally, Mother will have a greater

support system, as she has many family members in the relocation area.


        (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.

       The relocation will offer some financial benefit to the children as a

result of her Mother's increased income. It will also offer emotional benefit

to the children as Mother will have more time to devote to them. The

children will also benefit from the increased contact and support of

Mother's husband and large extended family in the area.

      The Court finds that the educational opportunities will be

comparable to those currently available. There do appear, however, to

be more social, sporting, and community resources available for the

children in the area of the relocation.   Likewise, if the children obtain all of


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 their therapy in school, they should have more time to devote to these

 other resources.


       (8) The reasons and motivation of each party for seeking or
       opposing the relocation.

       The Court does not believe that Father's motives in opposing Mother's

relocation are improper. Rather, this Court believes that Father is motivated by

love for his children, his desire to maintain stability in their lives, and his desire to

have as much contact with them as possible.

       Similarly,the Court does not believe that Mother's motives are improper.

Mother desires to have the support and assistanceof her family and husband.

Mother's request for relocation is necessaryto fulfill her desire to live with her

husband and give their marriage the best chance to work. Mother also has a

better job and the move will offer the children greater social and community

opportunities.

      (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.

              This factor is inapplicable.

       ( l 0) Any other factor affecting the best interest of the child.

              Not applicable.

      In sum, this Court's consideration of the statutory factors mandates the

conclusion that Mother's Petition for Relocation be granted. The children will

receive numerous benefits from the relocation and tfl j in particular, would


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suffer from the loss of his Mother as his primary medical and educational

caretaker if the relocation is denied. Because the proposed move is only a 1 1/2

hour drive away, Father will have frequent and continuing contact with the

children, and can maintain his relationship with them.




                                      BY THE COURT:


                                             l-    0_,, (\
                                      Susan EvashavikDilucente




                                        12
