J-S05028-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    J.M.                                       :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                  v.                           :
                                               :
                                               :
    J.M.                                       :
                                               :
                        Appellant              :   No. 1341 WDA 2018

                Appeal from the Order Entered August 23, 2018
       In the Court of Common Pleas of Allegheny County Family Court at
                          No(s): FD No. 18-007222


BEFORE:         PANELLA, P.J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.:                                 FILED JUNE 17, 2019

           J.M. (Mother) appeals from the order denying her petition to relocate

and granting the petition for shared physical custody filed by J.M. (Father)

regarding the parties’ two minor daughters, M.G.M., born in July 2009, and

C.B.M., born in October 2012 (collectively, Children). We affirm.

           The trial court summarized the relevant facts of this case as follows:

           The parties married in 2004 and are the parents of two girls, aged
           [six] and [nine]. During the marriage, the parties moved to the
           Pine-Richland school district, based on their mutual desire for
           Children to attend school there. They built a home which, at the
           time of trial, was on the market for over [one] million dollars.
           Father, who works for a financial services firm, has a net income
           of approximately $20,000.00 per month. Mother, who earned
           $50,000.00 to $80,000.00 in the beginning of the marriage,
           became, by mutual decision, a stay-at-home parent after the birth
           of the eldest child in 2009 and has not reentered the workforce.


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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     Mother testified the parties planned for her to return to the
     workforce in some capacity after the Children were in school.

     The parties’ marriage deteriorated over time and Father moved
     out of the marital residence on January 1, 2018. Mother retained
     primary custody of Children after separation with Father
     exercising partial custody every other weekend and a weeknight
     dinner. Father filed a divorce complaint on January 31 and filed
     for shared custody on February 1, 2018. Mother filed a Notice of
     Relocation on February 9, 2018, proposing to move to Mercer
     County with Children. Mother’s stated motivation for relocation
     was to move to a more affordable area with lower taxes and to be
     closer to her parents. Father objected to the relocation, asserting
     the move would negatively impact his relationship with Children
     who would receive no benefit from the move.

     At trial, Mother claimed that Father was not capable of sharing
     custody due to his work and travel schedule. To support this
     position, Mother submitted a calendar, purportedly showing the
     days during the parties’ six months of separation when Father
     requested changes in the limited custody he was exercising. She
     portrayed Father as an absent parent, rarely available for his
     children, stating, “The girls very much view that they live with me
     and they spend time with their dad.”

     After two days of trial, [the trial court] found that Mother’s
     requested relocation was not in the best interest of Children who
     would derive little benefit from it. [The trial court] found that it
     was in their best interest for their parents to share custody as
     equally as possible.

     In making [its] decision, [the trial court] performed an analysis of
     the custody factors of 23 Pa.C.S. § 5328 and the relocation factors
     of § 5337. Because the Children needed to be enrolled and begin
     school before [the court] could prepare a written Order, [the court
     set forth its] factor analysis on the record, touching on those [it]
     found most compelling. [The court] then set forth a shared
     custody schedule in [the] August 22, 2018 Order.

Trial Ct. Op., 11/1/18, at 1-4 (record citations and some capitalization

omitted).




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      On September 19, 2018, Mother filed a timely notice of appeal and a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i) and (b). On November 1, 2018, the trial court issued a Rule

1925(a) opinion. The court concluded that the “custody factors resulted in an

almost neutral balance between the parties, but the relocation [factors]

heavily favored Father due to the lack of feasibility of preserving his

relationship with the Children going forward.” Trial Ct. Op. at 8.

      On appeal, Mother raises eight issues for our review, which we have

reordered as follows:

      1. The trial court erred in failing to consider all sixteen custody
         factors set forth in 23 Pa.C.S. § 5328 and all nine relocation
         factors set forth in 23 Pa.C.S. § 5337 in its opinion.

      2. The trial court contradicted itself during the trial and in its
         findings, stating that Father could not handle shared custody,
         then stating that shared custody did not need to be equal, but
         then eventually ordering a shared custody schedule. The
         totality of the circumstances exemplifies the abuse of discretion
         of the court and the bias against Mother.

      3. The trial court erred in finding that [C]hildren would receive no
         benefit from Mother’s proposed relocation to Mercer County,
         despite the evidence of the superior affordability, the fact that
         Mother and extended family would be available to care for
         [C]hildren on a daily basis rather than placing [C]hildren in a
         commercial facility, and the proximity to and emotional support
         of family.

      4. The trial court erred in finding that the benefit of the relocation
         to Mother would be minimal, despite the evidence of superior
         affordability of Mercer County, the ability to stay at home to
         care for [C]hildren or seek more flexible employment, and the
         emotional and practical support of close family and friends that
         is not available to Mother in Pine Township.



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       5. The trial court erred in that it did not consider the inability of
          Father to follow a shared custody schedule due to his work and
          travel schedule and the impact on [C]hildren of having to
          change their schedule to accommodate Father’s needs.

       6. The trial court erred in that it failed to find that it is in the best
          interest of [C]hildren to remain in Mother’s primary custody
          and for [C]hildren to be in the same school.

       7. The trial court deprived Mother of her constitutional right to
          move, even though the marital residence is for sale and Father
          has no other ties to Pine Township, Father acknowledged that
          he could reside in Mercer County, and Father himself submitted
          evidence that he suggested Mother should purchase a house in
          Butler County.

       8. The trial court erred in showing bias against Mother as a stay-
          at-home parent, with the judge interjecting her opinion
          regarding her own custody issues and parenting choices and
          criticizing Mother for choosing to care for [C]hildren full time
          and not pursuing a career.

Mother’s Brief at 14.

       In her first issue, Mother claims that the trial court abused its discretion

by failing to consider the required relocation and custody factors. Mother’s

Brief at 55. Mother asserts that the court’s on-the-record analysis “did not

always identify which factor, if any, it was addressing.” Id. at 35. Mother

specifically asserts that the trial court failed to mention custody factors one,

three, four, eight, nine, and ten and relocation factors one, five, and eight. 1

See Mother’s Brief at 35-43.



____________________________________________


1 Mother, in support of her first issue, also contends that the trial court’s
consideration of several of the factors was inadequate. We address that
contention below.

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      In custody cases under the Child Custody Act (the Act) 23 Pa.C.S. §§

5321-5340, our standard of review is as follows:

      In reviewing a custody order, our scope is of the broadest type
      and our standard is abuse of discretion. We must accept findings
      of the trial court that are supported by competent evidence of
      record, as our role does not include making independent factual
      determinations. In addition, with regard to issues of credibility
      and weight of the evidence, we must defer to the presiding trial
      judge who viewed and assessed the witnesses first-hand.
      However, we are not bound by the trial court’s deductions or
      inferences from its factual findings. Ultimately, the test is whether
      the trial court’s conclusions are unreasonable as shown by the
      evidence of record. We may reject the conclusions of the trial
      court only if they involve an error of law, or are unreasonable in
      light of the sustainable findings of the trial court.

C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).

      The paramount concern in any custody case decided under the Act is

the best interests of the child. See 23 Pa.C.S. §§ 5328, 5337. When making

a decision on relocation that also involves custody, “the trial court must

consider all ten relocation factors and all sixteen custody factors” outlined in

the Act. A.M.S. v. M.R.C., 70 A.3d 830, 836 (Pa. Super. 2013).

      In awarding custody, the determination of a child’s best interests

requires the examination of the following factors:

         (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.




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       (2.1) The information set forth in section 5329.1(a)(1) and (2)
       (relating to consideration of child abuse and involvement with
       protective services).

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

       (4) The need for stability and continuity in the child’s
       education, family life and community life.

       (5) The availability of extended family.

       (6) The child’s sibling relationships.

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

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

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

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

       (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.


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        (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).

     With respect to relocation, the court must consider the following factors:

        (1) The nature, quality, extent of involvement and duration of
        the child’s relationship with the party proposing to relocate and
        with the nonrelocating party, siblings and other significant
        persons in the child’s life.

        (2) The age, developmental stage, needs of the child and the
        likely impact the relocation will have on the child’s physical,
        educational and emotional development, taking into
        consideration any special needs of the child.

        (3) The feasibility of preserving the relationship between the
        nonrelocating party and the child through suitable custody
        arrangements, considering the logistics and financial
        circumstances of the parties.

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

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

        (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).

     This Court has explained:

     Section 5323(d) provides that a trial court “shall delineate the
     reasons for its decision on the record in open court or in a written
     opinion or order.” 23 Pa.C.S. § 5323(d). Additionally, “section
     5323(d) requires the trial court to set forth its mandatory
     assessment of the sixteen [Section 5328 custody] factors prior to
     the deadline by which a litigant must file a notice of appeal.” C.B.
     v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013) . . . . Section 5323(d)
     applies to cases involving custody and relocation. A.M.S. v.
     M.R.C., 70 A.3d 830, 835 (Pa. Super. 2013).

     In expressing the reasons for its decision, “there is no required
     amount of detail for the trial court’s explanation; all that is
     required is that the enumerated factors are considered and that
     the custody decision is based on those considerations.” M.J.M. v.
     M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013) . . . . A court’s
     explanation of reasons for its decision, which adequately
     addresses the relevant factors, complies with Section 5323(d).
     Id.

A.V. v. S.T., 87 A.3d 818, 822-23 (Pa. Super. 2014).

     As we stated in M.J.M.:

     It is within the trial court’s purview as the finder of fact to
     determine which factors are most salient and critical in each
     particular case. See A.D. v. M.A.B., 989 A.2d 32, 35-36 (Pa.
     Super. 2010) (“In reviewing a custody order . . . our role does not
     include making independent factual determinations. . . . In
     addition, with regard to issues of credibility and weight of the
     evidence, we must defer to the presiding trial judge who viewed
     and assessed the witnesses first-hand.”).

M.J.M., 63 A.3d at 339 (emphasis added).


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       Here, the trial court articulated the reasons for its custody and relocation

decision on the record in open court.2 See N.T. Trial, 8/20/18, at 404-17.

Although the court did not always identify which factor it was evaluating, our

review of the record reveals no merit to Mother’s contention that the court

failed to consider all relevant factors. See N.T. Trial, 8/20/18, at 404-17.

       With regard to custody, for example, the first factor required the trial

court to consider which party is more likely to encourage and permit frequent

and continuing contact between Children and the other party. See 23 Pa.C.S.

§ 5328(a)(1).      The court suggested that this factor was balanced equally

between the parties, and stated “if you guys were to calm down here . . . you

both are smart enough to see what the kids need.” N.T. Trial, 8/20/18, at

411.

       The third custody factor required the trial court to consider the parental

duties performed by each party on behalf of Children.          See 23 Pa.C.S. §

5328(a)(3). The court acknowledged that Mother was a stay-at-home mom

and was “kind of running everything with the kids.” N.T. Trial, 8/20/18, at

412. However, the court stated that “[Mother’s] definition of being a good

parent is a lot different than [Father’s,]” and concluded that the contributions



____________________________________________


2 In its Rule 1925(a) opinion, the court referred to its on-the-record analysis
and explained that “[b]ecause the Children needed to be enrolled and begin
school before I could prepare a written order, I stated my factor analysis on
the record, touching on those I found most compelling.” See Trial Ct. Op. at
4.

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made by Mother and Father were equally important. Id. at 413; see also

Trial Ct. Op. at 12.

      The fourth custody factor is “[t]he need for stability and continuity in

the child’s education, family life, and community life.”         23 Pa.C.S. §

5328(a)(4). The court found that Mother’s and Father’s residences were close

enough for them to maintain shared custody and suggested that maintaining

Children’s “normal interaction with their father” was important.     N.T. Trial,

8/20/18, at 415, 408.

      The eighth custody factor related to the attempts of a parent to turn

Children against the other parent. See 23 Pa.C.S. § 5323(a)(8). The court

found that this factor weighed equally between the parties, indicating that

both Mother and Father claimed that the other “says things to the kids and

blames things on [the other].” N.T. Trial, 8/20/18, at 414. The court noted

that both parties shared responsibility for the ongoing conflict, because they

“created this situation together.” Id. at 415.

      The ninth custody factor required the trial court to consider which party

was more likely to maintain a loving, stable, consistent and nurturing

relationship with [Children] adequate for the child’s emotional needs.”      23

Pa.C.S. § 5328(a)(9). The court found that these factors balanced equally

and explained that “I think both of you are very, very good in a loving, stable,

nurturing relationship . . . I think both of you are able to be very attentive.”

See N.T. Trial, 8/20/18, at 415.


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      The tenth custody factor related to which party was more likely to attend

to the “daily physical, emotional, developmental, educational and special

needs” of Children. 23 Pa.C.S. § 5328(a)(10). The trial court made clear that

both parties were equally capable of caring for Children and addressing their

specific needs. See N.T. Trial, 8/20/18, at 407, 411, 413.

      As to relocation, the first relocation factor related to the nature, quality,

extent of involvement, and duration of Children’s relationship with Mother and

with Father, siblings, and other significant persons in Children’s life. See 23

Pa.C.S. § 5337(h)(1). Here, the trial court noted that Children have two sets

of grandparents and that their paternal grandparents live closer to Children’s

current residence.    See N.T. Trial, 8/20/18, at 408.       However, the court

emphasized that its primary focus was on Children’s relationship with Mother

and Father and not on Children’s relationship with their grandparents. Id.

The court explained that this factor was not determinative of its decision to

deny Mother’s petition to relocate. Id.

      The fifth relocation factor required the trial court to consider whether

there was an established pattern of conduct of either party to promote or

thwart the relationship of Children and other party.          See 23 Pa.C.S. §

5337(h)(5). On this factor, the trial court noted:

      I don’t think there’s been an established pattern. . . . I don’t think
      either one of you has really purposely done stuff. You might have
      been aggravated about the truth of the matter and said something
      smart or offhanded in front of the other person[,] in front of the
      kids. And sometimes it’s easier to do that when you believe you’re
      saying the truth, you know.

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N.T. Trial, 8/20/18, at 409-10.

          Relocation factor eight required the trial court to consider the reasons

and motivation of each party for seeking or opposing the relocation. See 23

Pa.C.S. § 5337(h)(8). Here, the trial court stated:

          I don’t doubt that relocation would help you if you moved on some
          level, but I think it would hurt [Children] really badly. I think it
          would set a standard in their life that they’ve never had. They’ve
          never lived in that place. They’re going to be in school all day. I
          don’t see any financial benefit. I don’t necessarily see the
          emotional benefit or the educational benefit. I don’t think we meet
          the mark on that relocation.

          I don’t think your reason for thinking you want to do that is
          evildoing to hurt [Father]. I don’t believe that. I just think, you
          know, it would be more comfortable for you and that would be a
          good thing for the kids. It’s just the other aspects of it aren’t so
          much there.

N.T. Trial, 8/20/18, at 411.

          Therefore, the record belies Mother’s assertion that the trial court failed

to consider any specific custody or relocation factor. See A.V., 87 A.3d at

822-23; M.J.M., 63 A.3d at 336. Accordingly, Mother’s argument merits no

relief.

          Mother also argues that “[t]he factors that were identified [by the trial

court] were given nothing more than a cursory mention, with no analysis of

the evidence, a discussion of the evidence presented, or the reasoning behind

the court’s decision.”      Mother’s Brief at 35-36. Mother contends that “the

court’s analysis of both sets of factors must make reference to the record;

addressing the factors in a cursory or conclusory manner is not sufficient,”



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and the “court must state both its conclusions and reasoning on the record.”

Id. at 35.

      Mother’s challenge to the thoroughness of the trial court’s discussion of

the relevant factors fails to establish an abuse of discretion. As stated above,

there is no required amount of detail for the trial court’s explanation so long

as the enumerated factors are considered. See M.J.M., 63 A.3d at 336; see

also A.V., 87 A.3d at 822-23. Contrary to Mother’s arguments, our review

reveals that the court properly considered all relevant custody and relocation

factors, its factual findings were supported by the record, and its conclusions

were reasonable. See C.R.F., 45 A.3d at 443. Accordingly, Mother’s first

issue fails.

      In her second issue, Mother argues that the trial court “contradicted

itself” by stating that shared custody did not need to be equal, but then

ordering a shared custody agreement. Mother’s Brief at 50. By way of further

background to this claim, at trial, the court considered the feasibility of

preserving Father’s relationship with Children if Mother’s relocation petition

were granted. See N.T. Trial, 8/20/18, at 408-09 (discussing 23 Pa.C.S. §

5337(h)(3)). The court, in reaching its decision to deny relocation, suggested:

      I do not agree [with Father] that, you know, the sandcastle
      washes away if [Mother relocates]. I think kids, if they’re -- I
      don’t think you [referring to Father] have to have exactly 50/50.
      I don’t think that means they love you as much as they love her.
      In the old days[,] guys would get one weekend a month. Kids
      love their parents.

      They don’t care if they see you every single day. The problem I
      have with maintaining this relationship is as this gets older and

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      they go live with their dad every weekend, what does that
      translate into for them?

      I go to school here. I have no life. I have no friends. You’re
      going to have a 13-year-old girl, and all her friends are doing
      something, and she’s not here ever. It doesn’t work well. It’s a
      bad plan.

      [C]hildren’s preference is that you guys stop fighting and that you
      pay more attention to them. So that wasn’t a part of it.

Id.

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

ordering shared custody:

      I carefully considered all of the testimony and evidence presented
      regarding Father’s schedule. I found credible Father’s testimony
      that the majority of the travel which interfered with his past
      custody time was scheduled prior to separation. I found Father
      credible when he testified he controls his schedule and can make
      his travel arrangements and his appointments so that they do not
      interfere with his custody going forward.

      Mother portrayed Father as unavailable, always working or playing
      golf rather than spending time with Children. I did not find this
      picture of Father accurate. Clearly, Father has a demanding job
      and he travels for work, as do many other quite involved parents.
      This is not a reason to find shared custody impossible. In this
      case, Father credibly testified as to how he would manage his
      schedule going forward to minimize travel or long days when he
      exercises custody.

      Mother’s testimony that Father traveled more since separation
      was belied by the facts. Father introduced evidence that his
      overnight travel of 20 to 40 nights a year had remained relatively
      constant during the marriage and after. The calendar Mother
      proffered to show Father’s inability to exercise custody was not
      probative of how Father would manage his schedule going
      forward.

Trial Ct. Op. at 11.



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      On appeal, Mother emphasizes the trial court’s statements that “I don’t

think you have to have exactly 50/50” and that Children “don’t care if they

see you every day” was inconsistent with its decision to award shared custody.

Mother’s Brief at 37.

      Based on our review of the record, we find no abuse of discretion in the

trial court’s conclusion that both parties were equally capable of shared

custody.   See C.R.F. 45 A.3d at 443.          The court’s factual findings are

supported by the record and its conclusions are reasonable in light of the

evidence presented at the hearing. See id. Further, the record demonstrates

that the trial court did not contradict itself. The court’s statement that shared

custody did not have to be exactly equal was made in the context of discussing

the feasibility of Mother’s relocation petition and not Father’s petition for

shared custody. Therefore, no relief is due on this claim.

      We summarize Mother’s next five issues as follows. Mother contends

that the trial court abused its discretion by finding that Children would receive

no benefit from the proposed relocation.       Mother’s Brief at 44.   She also

asserts that the court erred by failing to consider the benefits of permitting

Mother to live in a more affordable community with her family. Id. at 44-45.

According to Mother, the benefits would include permitting her to spend more

time caring for Children, avoiding the need for commercial day care,

permitting Children to go to the same school, and providing greater continuity

in Children’s lives.    Id.   Mother also asserts that the trial court failed to

consider Father’s long and irregular working hours when awarding shared

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custody and placed Father’s interests over those of Mother and Children. Id.

at 48-49. Mother argues that the trial court erred in failing to find it was in

Children’s best interests to permit her to relocate and have primary custody.

Id. at 50. Mother also asserts that she was deprived of the constitutional

right to move her residence by the court despite the fact that Father previously

suggested that she could move. Id. at 51.

      Mother, in essence, questions the trial court’s conclusions and

assessments and seeks to have this Court re-find facts, re-weigh evidence,

and re-assess credibility to her view of the evidence. This we cannot do. See

C.R.F., 45 A.3d at 443. As we stated in King v. King, 889 A.2d 630 (Pa.

Super. 2005), “[i]t is not this Court’s function to determine whether the trial

court reached the ‘right’ decision; rather, we must consider whether, ‘based

on the evidence presented, given [sic] due deference to the trial court’s weight

and credibility determinations,’ the trial court erred or abused its discretion .

. . .” Id. at 632 (quoting Hanson v. Hanson, 878 A.2d 127, 129 (Pa. Super.

2005)).

      In her eighth issue, Mother argues that the trial court was biased against

her as a stay-at-home parent. Mother’s Brief at 46. According to Mother, the

trial court made several statements that trivialized her work as a stay-at-

home mother. Id. at 47-48. Mother asserts that “[i]n focusing on what the

court believes to be [Mother’s] shortcomings regarding her marriage and

career, the court ignored an analysis of the custody factors and the best

interest of the children.” Id. at 48. Mother claims that “[t]he totality of the

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circumstances exemplifies the abuse of discretion of the court and the bias

against Mother.” Id. at 50.

      As indicated previously, the record demonstrates that the trial court

properly based its decision on the evidence of record, and that the court

considered the evidence in light of the factors set forth in Sections 5328(a)

and 5337. See A.M.S., 70 A.3d at 836; C.R.F., 45 A.3d at 443. There is no

indication that the court’s decision was based on bias against Mother as a

stay-at-home parent. See Arnold v. Arnold, 847 A.2d 674, 681 (Pa. Super.

2004) (stating that adverse rulings alone do not establish bias, especially

where rulings are legally proper). Cf. Wiskoski v. Wiskoski, 629 A.2d 996

(Pa. Super. 1993) (finding pervasive bias against the mother in a custody

dispute where the trial court ignored evidence presented at the hearing and

relied on findings unsupported by the record). Therefore, no relief is due.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/17/2019




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