J-A07008-16



                                2016 PA Super 123

D.K.D.,                                               IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                           Appellant

                     v.

A.L.C.,

                           Appellee                         No. 1276 WDA 2015


                     Appeal from the Order July 31, 2015
             In the Court of Common Pleas of Allegheny County
                  Family Court at No(s): FD-09-008227-003


BEFORE: BOWES, MUNDY AND JENKINS, JJ.

OPINION BY BOWES, J.:                                        FILED JUNE 15, 2016

      D.K.D. (“Father”) appeals from the July 31, 2015 custody order that

granted the motion filed by A.L.C. (“Mother”) to relocate to Treasure Island,

Florida and denied his motion to modify an existing custody order.                  We

reverse and remand for further proceedings.

      Mother and Father married on March 29, 2004, separated during 2009,

and divorced in March of 2015. The family moved to the Pittsburgh area two

years into the marriage. The marital home was in Imperial, Pennsylvania.

Following the separation, Father, who currently works for the Federal Bureau

of Investigation (“FBI”) Joint Terrorism Task Force, moved approximately

twelve    miles   from    the   marital   residence    to   his   parents’   home   in

Burgettstown.      Until Mother moved to Florida during early 2015, she
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remained in the marital home with the parties’ son L.D., who was born of

the marriage during February 2008.

       As L.D.’s therapeutic needs weighed heavily on the trial court’s

custody and relocation decisions, we summarize the relevant facts herein.

In June of 2009, L.D.’s pediatrician, Patricia Miller, M.D., identified significant

language and speech delays. Subsequent testing revealed a possible Autism

Spectrum Disorder, and during January 2011, L.D. was diagnosed with

Pervasive    Development Disorder, not otherwise          specified.1     He   was

prescribed thirty hours per week of intense outpatient therapy, most of

which was provided in the marital home.              Stability and routine are

paramount to L.D.’s continued development.

       Meanwhile, following the marital breakdown, on July 1, 2009, Father

filed a petition for divorce that included a count for custody of L.D. The trial

court entered a consent order that granted shared legal custody and

awarded Mother primary physical custody.            Father received periods of

physical custody of L.D. for two hours on Tuesday and Thursday evenings

and for three hours on alternating Saturday afternoons.                 The accord

expressly limited the evening custody to the marital residence. While Father

was authorized to exercise his custodial rights outside of the home during
____________________________________________


1
  Dr. Miller explained that Pervasive Development Disorder is a nonspecific,
descriptive diagnosis within the autism spectrum of developmental delays in
two or more areas. N.T., 2/19/15, at 94.



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Saturday afternoons, in reality, Mother regularly objected to L.D. leaving the

home with Father due to her concern that the disruption would be harmful to

L.D.’s condition.    Father generally acquiesced to Mother’s demands and

exercised weekend custody at the marital residence.

      On September 25, 2014, Father filed a petition to modify the consent

order. He sought larger periods of physical custody, more specific vacation

and holiday schedules, and better enforcement of his custodial rights.

Approximately one month later, Mother countered by issuing notice of her

proposed relocation to Ocklawaha, Florida, so that she and L.D. could reside

with her mother (“Maternal Grandmother”).

      Father opposed the proposed relocation, and the trial court held a two-

day trial on the parties’ respective petitions.        Mother and Maternal

Grandmother testified in support of the proposed relocation. Father testified

on his own behalf and presented Dr. Miller, and his parents (“Paternal

Grandparents”) as witnesses.     Following the testimony and review of the

parties’ proposed findings of fact, on March 20, 2015, the trial court denied

Mother’s proposed relocation. The trial court delineated the reasons for its

decision, and addressed the ten relocation factors under 23 Pa.C.S. §

5337(h), reproduced infra.     It found that the only factor that militated in

favor of relocation concerned the anticipated enhancement to Mother’s

quality of life.    The remaining factors, including consideration of L.D.’s

quality of life, either weighed against relocation, were determined to be

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neutral, or were inapplicable.    In sum, the court reasoned, “While Mother

demonstrated that relocating to Florida would enhance her general quality of

life, she failed to meet her burden that relocation is in [L.D.’s] best interest.”

Findings of Fact, 3/23/05, at 15.

      In addition, the trial court granted Father’s motion to modify the

custody arrangement.        It alleviated Mother’s precondition that Father

exercise custody at the marital home and fashioned a custody schedule that

increased Father’s periods of physical custody gradually over four months.

The expansion culminated with Father exercising overnight custody on

alternating weekends from Friday evening until Sunday evening. The court

also outlined a defined custody schedule for L.D.’s academic breaks,

holidays, and summer vacation.

      On April 8, 2015, Mother filed a motion for reconsideration and a

motion for special relief. The motion for reconsideration noted that the trial

court had not established a custody schedule in the event that Mother

elected to relocate to Florida without her son. The concomitant motion for

special relief informed the court that, while the court’s decision was pending,

Mother, who attained a Juris Doctor degree, had accepted a job in Florida as

a claims assistant at the Department of Veterans Affairs and had devised an

interim plan for Maternal Grandmother to care for L.D. in the marital

residence while she began immediate employment. Mother continued that

she intended to purchase a home in Florida in anticipation of the trial court’s

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reconsideration of its denial of her prior petition for relocation. Specifically,

she averred, “Mother plans to have a home purchased in the geographic

area of her employer in which she and her mother will live, with, if the Court

permits, the child.”    Petition for Special Relief, 4/15/15, at 3.      Mother

asserted that the employment offer was a significant factor that was not of

record during the prior hearing and she contended that “other significant

changes have occurred,” which she failed to identify in the petition. Id. at

2.   Mother requested that the court re-open the record to take additional

evidence relative to her relocation.

      Within the thirty-day period to appeal the March 23, 2015 custody

order, the trial court granted Mother’s motion to reconsider, reopened the

record, and scheduled an evidentiary hearing for June 2015. In light of the

court’s decision to reopen the record, Father submitted a motion to amend

his original petition for modification in order to address Mother’s acceptance

of employment in Florida. The trial court granted Father’s motion to amend.

Thereafter, Mother issued an amended notice of relocation proposing to

relocate with L.D. to Treasure Island, Florida, approximately two hours away

from Maternal Grandmother’s home. Again, Father opposed relocation.

      On July 1, 2015, the trial court convened a third day of trial to address

Father’s amended motion for modification and Mother’s amended relocation

petition.   Mother and Maternal Grandmother again testified in favor of

relocation. Father and his parents testified in opposition to relocation and in

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favor    of   granting   Father   primary   physical   custody   of   the   child   in

Pennsylvania. On August 3, 2015, the trial court issued amended findings of

fact and entered a custody order granting Mother’s request to relocate with

L.D. to Treasure Island, Florida.

        Again, the court delineated its consideration of the § 5337(h)

relocation factors and the relevant best-interest factors outlined in 23

Pa.C.S. § 5338(a). As it relates to Mother’s amended relocation petition, the

trial court determined that factor two, which it had previously determined to

weigh against relocation, was now neutral. More importantly, the trial court

changed its opinion of the seventh factor regarding the enhancement of

L.D.’s quality of life and found that the two factors that supported relocation

to Florida, i.e., the enhancement to Mother and L.D.’s respective quality of

life, prevailed over the three factors that weighed against relocation: the

deleterious effect of relocation on L.D.’s relationship with Father; the

feasibility of preserving that relationship considering logistic and financial

constraints; and Mother’s established pattern of conduct to thwart the

growth of the father-son relationship.

        In denying Father’s petition to modify, the court initially determined

that the one best-interest factor in favor of granting Mother primary physical

custody, i.e., the party more likely to attend to L.D.’s daily needs,




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outweighed the single factor that militated in favor of Father: Mother’s lack

of cooperation and contribution to the level of conflict.2    It found that the

remaining best-interest factors either supported both parents equally or

were inapplicable.

       Father filed a timely appeal and a contemporaneous concise statement

of errors complained of on appeal. He identifies five issues for our review:3

       I.    The trial court committed [an] abuse of discretion in its
       application of 23 Pa.C.S. § 5328.

       II.   The trial court committed [an] abuse of discretion in
       applying the best interest standard in a gender-biased manner.

       III. The trial court erred in finding that the Mother provides
       more stability for the child in a gender-biased manner.

       IV.   The trial court committed [an] abuse of discretion in failing
       to consider the father-child relationship in awarding primary
       physical custody to Mother.

       V.    The trial court abused its discretion in failing to require
       Mother to fully meet her burden in determining that the
       relocation is in the child’s best interest.

____________________________________________


2
   As it relates to both factors, the trial court determined that the single
factor in favor of the respective parent did not weigh significantly against the
other parent. Specifically, the court found that, although Mother was more
likely to attend to L.D.’s daily needs, it was confident that Father would
satisfy L.D.’s needs if given the opportunity. Similarly, the court determined
that, while Mother’s lack of cooperation militated in Father’s favor, it
anticipated that Mother would be more cooperative and accommodating to
Father’s requests in the future.
3
  Father lists six issues in his brief; however, he presents argument for only
five of those claims.



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Father’s brief at ii.   Mother did not file a brief to level any countervailing

arguments.

         We review the trial court’s custody order for an abuse of discretion.

S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa.Super. 2014). We defer to the trial

court’s factual findings that are supported by the record and its credibility

determinations.      Id.   However, we are not bound by the trial court’s

deductions or inferences, nor are we constrained to adopt a finding that

cannot be sustained with competent evidence. A.V. v. S.T., 87 A.3d 818,

820 (Pa.Super. 2014).       In sum, this Court will accept the trial court’s

conclusion unless it is tantamount to legal error or unreasonable in light of

the factual findings. S.W.D., supra at 400.

         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 which legitimately have an effect upon the child’s

physical, intellectual, moral, and spiritual well-being.”   Saintz v. Rinker,

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

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

         First, we address Father’s complaints that the trial court failed to

utilize gender-neutral considerations when addressing the best interest

factors under §§ 5328(a) and 5337(h).          This discussion subsumes the

second and third issues that Father levels in his brief.     For the following

reasons, both assertions fail.

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      Father   baldly   asserts     that    the   trial   court’s   custody/relocation

determination was “a glaring example of the gender bias in custody

decisions that is not permitted under Pennsylvania case law.” Father’s brief

at 12. He highlights that Pennsylvania abolished the tender years doctrine,

which formed a preference in favor of mothers of preschool-aged children,

and he notes that when both parents are determined to be competent,

equally-shared physical custody is favored.

      Father is correct that gender-neutral custody considerations are well

ensconced in Pennsylvania jurisprudence, and the Custody Law does not

countenance presumptions between parents based upon gender or any other

characteristics.   See 23 Pa.C.S. § 5327(a) (“In any action regarding the

custody of the child between the parents of the child, there shall be no

presumption that custody should be awarded to a particular parent.”).

However, Father failed to establish either that the trial court was biased

against him or that the court fashioned a presumption in Mother’s favor.

      Father   complains    that,    even    though       the   court   recognized   his

relationship with L.D. and acknowledged Mother’s persistent intermeddling

with his ability to fully exercise his custody rights, the court nevertheless

failed to consider these dynamics in applying the best interest factors or in

granting Mother’s petition to relocate to Florida. We disagree with Father’s

characterization of the trial court’s analysis. In actuality, the certified record

demonstrates that the trial court weighed both the fact that Mother acted as

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L.D.’s primary caretaker since birth and the reality that Father’s attempts to

become more involved in his son’s life and shoulder more of the parental

burden were frustrated by Mother’s overbearing nature, L.D.’s therapeutic

needs, and Father’s parental shortcomings. The court contemplated each of

these facts, which are all supported by the record, along with the other

statutory determinations and concluded that it would be in L.D.’s best

interest to remain in Mother’s primary physical custody and relocate to

Florida. While the trial court’s custody decision is by no means unassailable,

it clearly was not the product of gender-bias or a presumption in

contravention of § 5327(a). These claims fail.

      As Mother exercised primary physical custody of L.D. from the outset,

the trial court’s denial of Father’s request for primary custody flowed from its

decision to permit Mother to relocate to Florida with L.D.      Thus, we next

address the merits of the trial court’s decision to grant Mother’s petition for

relocation, which Father challenges in the fifth question presented for

review.

   The Child Custody Law enumerates ten factors a court must consider in

determining whether to grant a proposed relocation:

   (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

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      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.

      (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). As the custodial parent seeking to relocate with L.D.,

Mother had the burden of establishing that relocation is in her son’s best

interest.   See 23 Pa.C.S. § 5337(i) (“Burden of proof.- (1) The party



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proposing the relocation has the burden of establishing that the relocation

will serve the best interest of the child as shown under the factors set forth

in subsection (h).”).

      Herein, the trial court initially found that Mother failed to satisfy her

burden of proof. However, based upon Mother’s motion for reconsideration,

the trial court re-opened the record, and revisited the issue in light of

Mother’s additional evidence that she had obtained employment in Florida

earning between $36,000 and $41,000 and that Maternal Grandmother had

committed to purchase Mother a $435,000 home in Treasure Island, Florida.

Following the third evidentiary hearing, the trial court reversed its course

and determined that Mother, in fact, satisfied her burden of proof.

      Father challenges the court’s determination that Mother established

that relocation was in their son’s best interest. He argues that while Mother

demonstrated that moving to Florida would enhance her general quality of

life, she failed to prove that relocation was in L.D.’s best interest under the

ten factors listed in § 5337(h). Although Father discusses each of the ten

relocation factors individually, mindful that the trial court altered its original

perspective of only five factors, we focus on the court’s re-consideration of

those five points.

      Our review concentrates upon the second, third, fifth, sixth, and

seventh relocation factors identified in § 5337(h).      We discuss the factors




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sequentially, and for the reasons expressed infra, we find that the trial

court’s volte-face was not supported by the record.

      First, relating to factor two, which concerns L.D.’s developmental

needs and the likely impact that relocation would have upon his physical,

educational, and emotional development, the trial court initially found that

this factor weighed against relocation. In essence, the trial court accounted

for the various ways that relocation would affect L.D.’s difficulty adjusting to

foreign environments and determined that the factor militated against

relocation. However, upon review of Mother’s new evidence, it relaxed its

concerns, and concluded “[t]his factor did not weigh in favor of or against

relocation.” Findings of Fact, 8/3/15, at 13.

      In the March 2015 order denying Mother’s petition for relocation, the

trial court noted that Mother offered no evidence of L.D.’s proposed health

care options in Florida, and observed that it would be difficult for L.D. to

adjust to a new school, neighborhood, and friends, and it recognized that the

proposed move would disrupt his stability and routine.        Findings of Fact,

3/17/15 at 7-10. However, in contrast to the reasoned determination in its

March order, the trial court subsequently determined that this factor no

longer militated against relocation.     In addition to finding that Mother

supplemented the record regarding pediatricians and health care facilities

near Treasure Island, the Court reasoned that, since Father lived in a

different school district from the marital residence, L.D. would have to adjust

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to a new school regardless of whether he relocated to Florida or remained

with Father in Pennsylvania. The court also noted that, since Pennsylvania

and Florida both utilize the academic curriculum known as Common Core,

L.D. would find continuity in his education.      Thus, upon consideration of

Mother’s new evidence, the trial court changed its perspective of this factor

as supporting relocation.

      The trial court’s rationale is flawed. Contrary to the trial court’s new

perspective, the disruption to L.D.’s routine is not inevitable regardless of

the proposed relocation.    Preliminarily, the trial court discounted Father’s

commitment to move to the West Allegheny School District so as to not

disturb L.D.’s education. Additionally, even to the extent that the trial court

was not persuaded by Father’s intention to move to accommodate his son,

the court failed to acknowledge that, by remaining in Pennsylvania

approximately twelve miles from the former marital home, L.D. would

preserve routines and friendships by participating in activities that are not

specific to the West Allegheny School District, i.e., attending private karate

instruction, visiting friend’s homes, and enjoying programs at the Carnegie

Museum and Carnegie Science Center in Pittsburgh.          Moreover, the court

neglected to acknowledge that, beyond education, remaining in Pennsylvania

would provide L.D. continued access to Dr. Miller and, if needed, the

behavioral therapists. Thus, while the trial court initially accounted for L.D.’s

difficulty adjusting to a foreign environment, upon reflection, it discounted

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those concerns in favor of the new evidence that Mother used to bolster her

otherwise deficient petition to relocate.

      Likewise, the trial court relaxed its position in relation to factor three

concerning the feasibility of preserving L.D.’s relationship with Father. The

trial court initially found that, due to logistics, expenses, and travel time,

relocation was not feasible to preserve Father’s custodial rights.          Upon

reconsideration, however, the court reasoned that it could conceivably

fashion a custody schedule that awarded Father significant periods of

custody during holidays and summer vacation in a way that approximated

the custodial periods he exercised in the March 2015 order. Nevertheless, in

ultimately concluding that this factor weighed against relocation, the court

determined that the prospective relocation would impair the existing father-

son relationship.

      Despite indicating that relocation was unfeasible in addressing this

factor, in reality the trial court not only sustained the feasibility of this type

of arrangement, but it crafted a post-relocation custody schedule that

employed the deficient approach. Father was awarded alternating weekend

custody in Florida, one week of custody during L.D.’s winter and spring

breaks, and a maximum of four consecutive weeks of custody during L.D.’s

summer break. Hence, in facilitating Mother’s relocation to Florida, the court

utilized the identical scheme that it explicitly found “would not be

feasible . . . to preserve [Father’s] existing relationship with L.D.”       See

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Findings of Fact, 8/3/15, at 14.     In doing so, the trial court overlooked

evidence that Father’s position with the FBI Joint Terrorism Task Force

restricted his availability during major holidays. Thus, the trial court cannot

cure the substantial disparity in custody following relocation simply by

amassing the majority of Father’s custodial periods during Christmas, Easter,

and summer vacation.

      Moreover, concerning factor five, in granting Mother’s petition for

relocation in derogation of Father’s custodial rights, the trial court

disregarded its express finding that “Mother historically refused to grant

father’s requests to spend additional time with [L.D.] or permit overnight

physical custody between Father and [L.D.]” and discounted its observation

that “[t]his conduct has had the effect of stalling the development of [L.D.’s]

relationship with his Father.”   Id. at 15.   The court also noted that when

Mother began her employment in Florida, she elected to have Maternal

Grandmother move to Pennsylvania to care for L.D. rather than increase

Father’s parental role.     However, notwithstanding record evidence of

Mother’s ensconced pattern of thwarting Father’s relationship with L.D., the

trial court diminished Mother’s actions, ostensibly in favor of the ambitious,

but unsupported, belief that Mother would be more cooperative now that she

succeeded in relocating to Florida. We disagree with the court’s rationale.

Concisely put, Mother’s proposal that Father visit their son in Florida,

presumably pursuant to her terms and conditions, do not negate the

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cumulative effects of her campaign of interference with Father’s custodial

rights.

       In addition to weakening its opposition to relocation under factors two,

three, and five, the trial court became even more resolute in favor of

relocation under factors six and seven concerning whether relocation would

enhance the respective quality of life of Mother and L.D.             In relation to

Mother, the trial court initially concluded that the then-proposed relocation

to Ocklawaha, Florida, to reside rent-free with Maternal Grandmother would

enhance Mother’s financial and emotional outlook. Recall that Mother, who

had not yet obtained employment in Florida, intended to purchase a home in

Ocklawaha with the proceeds from the sale of the marital residence and

utilize Maternal Grandmother for childcare. The court determined that this

factor in Mother’s favor was insufficient to warrant relocation.

       Upon reconsideration of Mother’s petition to relocate, however, the

trial court shifted its focus to the improvements to Mother’s quality of life

that flowed from her newly acquired employment.              Specifically, the court

highlighted that Mother would earn approximately $36,000-$41,000 per

year, albeit in an entry-level clerical position outside of her professional

training. The court stressed that, “[d]espite significant efforts, Mother has

been      unable   to   obtain   employment     in   Pennsylvania”   and   that   this

opportunity permitted Mother to retain approximately three years of

seniority that she accrued in the federal employment system.               Id. at 16.

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The court revisited the putative significance of Mother’s commitment to sell

the marital residence regardless of relocation and underscored the fact that

Maternal Grandmother purchased Mother a $435,000 home in Treasure

Island, with the promise that Mother would repay some of that debt with the

proceeds from the sale of the marital residence. The trial court surmised,

“Emotionally, Mother will enjoy independence and financial freedom resulting

from finding gainful employment and new housing.”     Id. It concluded that

her access to family and the opportunity for a fresh start would benefit her

emotionally and financially.

      The trial court’s characterization of the benefits that will inure to

Mother as a result of relocation distorts the evidence that Mother presented

during the July 1, 2015 hearing.   As discussed below, 1) Mother failed to

pursue career opportunities in Pennsylvania that were commensurate to her

education and training; 2) while Mother claimed that she could not afford to

remain in the marital home, she acquired a residence in Florida for more

than three times the amount that she owed on the marital property; and 3)

the emotional support that Mother would ostensibly gain from Maternal

Grandmother’s presence is significantly diminished by the fact that Mother’s

new home is in excess of two hours away from Maternal Grandmother’s

residence.

      First, we address Mother’s search for employment.      Stated plainly,

Mother possessed a strong desire to return to Florida and prior to the third

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relocation hearing, she listed the marital home for sale because, having

accepted     employment,       she   had       no   intention   to   continue   living   in

Pennsylvania. N.T., 7/1/15, at 54, 103. She explained, “I listed it for sale

because I need to sell it and have the proceeds financially. I’m not going to

live there anymore. I have taken a job and it’s not in the Pittsburgh area.”

Id. at 54.       Mother’s evidence established that she has been looking

earnestly for employment in Florida since July 2012, approximately two

years before she issued notice of her intention to relocate. Mother initially

sought to relocate with L.D. to that state without any job prospects, and

while Mother included Pennsylvania and Washington, D.C. within the

parameters of her USAJOBS4 employment searches, she was committed to

finding employment in Florida, even if the career opportunity was outside of

her profession and paid substantially less than what she could earn in the

legal field. In fact, Mother acquired the clerical position that forms the basis

of the court’s revised “quality of life” rationale through USAJOBS, having

submitted her application for that position on January 15, 2015.

       Mother defended the scope and nature of her pursuit of employment

by explaining that Pittsburgh does not offer many opportunities for federal

____________________________________________


4
  USAJOBS is a website administered by the United States Office of
Personnel Management. It compiles the federal government's official list of
employment opportunities and permits users to apply to numerous positions
en masse and track the status of those applications.



                                           - 19 -
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employment.         However, in light of the deleterious effect that her

employment preferences had upon the father-son relationship, Mother’s

preoccupation with the benefits flowing from three years seniority in the

federal employment system is patently unwarranted.                Exhibit K, which the

trial court cites for its proposition that Mother performed an exhaustive job

search     in   Pennsylvania,   reveals    that    since   2012   Mother   applied   to

approximately eight hundred federal employment opportunities via the

USAJOBS website, predominately for positions located in Florida.              Despite

Mother’s legal background, she submitted applications for an assortment of

careers ranging from a park guide in Ochopee, Florida (Big Cypress National

Reserve) to a cemetery representative in Arlington, Virginia (Arlington

National Cemetery).         Her less eclectic submissions included, inter alia,

applications for various low-level clerical jobs and non-attorney legal

positions in Washington, D.C. and Pennsylvania, but again, principally in

Florida.    Indeed, in complete contrast to the trial court’s perspective of

Mother’s diligence, Mother neglected to adduce any evidence of a focused

employment search beyond her obvious emphasis on seeking federal career

opportunities in Florida.

      Additionally, although Mother referenced an additional one hundred

applications during her testimony, she did not present evidence of any job

searches beyond the USAJOBS printouts identified as Exhibit K.                   More

importantly, Mother did not testify that any of the other undocumented jobs

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were in Pittsburgh. In fact, the record reveals that Mother did not apply for

any private sector jobs in the Pittsburgh area.      Thus, notwithstanding the

trial court’s reliance upon Exhibit K as evidence of Mother’s inability to

secure gainful employment in Pennsylvania, our review of the certified

record confirms that the vast majority of the job opportunities that Mother

pursued in the two years preceding her motion for relocation were located in

Florida.   If anything, the evidence of record supports the contrary finding

that Mother neglected to make a sincere, unencumbered effort to find

employment in Pennsylvania or, as we discuss infra, maintain the marital

residence to avoid removing L.D. from his stable environment and steady

routine.

      In addition to relying upon faulty evidence regarding Mother’s career

opportunities, the trial court misconstrued evidence concerning her financial

wherewithal.    The court was persuaded by Mother’s apparent struggle to

maintain the marital residence in Imperial.     The record belies the court’s

inference that Mother is in dire economic straits.

      The record establishes that Father pays Mother $1,300 per month

alimony and an equal amount in child support.            While the alimony is

scheduled to terminate during summer 2016, at the time of the third

relocation hearing, Mother anticipated receiving an additional $20,000

pursuant to the marital settlement. In addition to the cash receipts, Mother

has approximately $190,000 equity in the former marital home in Imperial,

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which she listed for $290,000.        In addition, she owns a furnished one-

bedroom condominium in Tampa, Florida. That property will produce rental

income now that Mother purchased a new $435,000 home in Treasure

Island.

      Notwithstanding these assets, Mother insinuated that her financial

situation was so untenable that she and L.D. were on the verge of forfeiting

the marital residence. In reality, however, and in contrast to the trial court’s

supposition regarding her economic distress, Mother adduced scant evidence

of economic hardship. In point of fact, the evidence that Mother introduced

during the relocation hearing established the inverse conclusion that her

finances were sufficiently stable to permit her to focus her employment

search upon random lower-level jobs in Florida rather than career

opportunities that were suited to her advanced education, experience, and

professional training.    Additionally, Mother had sufficient means such that

she agreed to forego the $20,000 payment so long as Father used it to defer

the cost of traveling to Florida several times per year.

      Moreover,   while      Mother   has   certainly    benefited   from     Maternal

Grandmother’s     largess,    if   Mother   truly   desired   to     attain   financial

independence and stability for her and L.D., she would have placed greater

importance on the value of the potential career opportunities and less

emphasis on returning to Florida or utilizing the three years of seniority she

accrued in the federal employment system.               There is no evidence that

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Mother requested that Grandmother redirect the financial resources that she

used to purchase the $435,000 home so that Mother could satisfy the

$100,000 balance on the marital residence or buy a less expensive home in

Pennsylvania. In actuality, Mother was determined to move to Florida and

she purposefully directed all of her available resources toward opportunities

in that state.

      Finally, as it relates to the benefit of emotional support, the record

reveals that no such network exists for Mother and L.D. in Tampa. Maternal

Grandmother, whose presumed assistance was the initial impetus for

relocation to Florida, lives approximately two hours away from Mother.

Moreover, Maternal Grandmother is the primary caretaker for her disabled

brother with whom she lives. Hence, despite Mother’s initial justification for

relocation, Maternal Grandmother cannot provide childcare on a daily basis.

      Likewise, Mother’s attempt to invoke L.D.’s paternal family was

unsubstantiated. The record confirms that Paternal Grandparents maintain a

seasonal home approximately one-hour away from Mother’s new residence,

but they spend the majority of the calendar year in Pennsylvania, about

twelve miles from the family home in Imperial. In sum, the only relatives

that live in the area are the paternal aunt, uncle, and cousins. While Mother

testified that she believed it was important for L.D. to fashion bonds with his

cousins, once again, scant evidence exists to sustain the conclusion that she

would rely upon Father’s brother as a support network if the need were to

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arise.    Recall that Mother previously declined to rely upon Father or his

parents, who lived twelve miles from the marital home, to care for L.D.

when Mother traveled to Florida to begin employment. She did not inform

Father of her travels, and when Father requested additional custody in her

absence, she refused. Instead, she summoned Maternal Grandmother from

Florida to care for L.D. while she was away.           Nothing in the record

substantiates the trial court’s finding that Mother would engage Father or

utilize his family as L.D.’s emotional support network now that she has even

greater control over the child approximately 1053 miles away from

Pennsylvania.

         Notwithstanding the trial court’s misapprehension of the foregoing

facts, the record supports the contrary conclusion that, despite her indicated

dedication to L.D., Mother’s primary commitment has been to return to

Florida regardless of the trial court’s decision.     In contrast to Mother’s

avowed concern for L.D., Mother’s actions confirm that her desire to return

to Florida, rather than realize L.D.’s best interest, is her paramount

consideration.    Mother never indicated that she considered redoubling her

efforts to find employment in Pennsylvania, either to maintain stability for

her son or, if the the trial court denied the petition to relocate, to maintain

primary custody.     Tellingly, she displayed little reluctance to leave L.D. in

Pennsylvania in order to relocate to Florida, and complained that, in denying

her initial petition, the court neglected to fashion a custody schedule in the

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event that she went to Florida without L.D.       Rather than intensifying her

efforts in Pennsylvania after the trial court denied her motion to relocate,

Mother cultivated roots in Florida in derogation of the trial court order. She

accepted a job in Florida, purchased a new home, listed the marital

residence for sale, and then requested the court to reconsider its denial

based on the “new” evidence. Mother’s actions expose her insincerity.

      Finally, we address the evidence that the trial court relied upon in

concluding that the seventh factor, regarding L.D.’s quality of life, militated

in favor of relocation.    Initially, the court determined that, despite the

obvious advantage of outdoor activities available in Florida, Mother failed to

satisfy her burden of proving that relocation would benefit L.D. financially,

emotionally, or educationally.     The court stressed that L.D. attended a

quality school district in Pennsylvania and benefited from the stability and

consistency that he achieved by continuing with Pittsburgh-area activities

and maintaining his then-current relationships.        Hence, the trial court

previously found that this factor did not favor relocation.

      Upon reconsideration, however, the trial determined that the factor

did, in fact, favor relocation. As we noted supra, in our discussion regarding

L.D.’s developmental needs, the court reasoned that, since Mother was

selling the marital residence, L.D. would face disruption and instability in his

education and activities even if it denied the petition to relocate. It further

found that the elementary school in which Mother proposed to enroll L.D.

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was superior to the elementary school he would attend in Burgettstown.

Borrowing from the preceding analysis, the court also determined that the

benefits of Mother’s employment and her purchase of a fashionable home

would inure to his advantage.       However, for the reasons we previously

stated, the trial court abused its discretion in determining that these isolated

considerations warranted its decision to reverse its prior position and to

grant Mother’s petition to relocate.

      In sum, the trial court not only discounted Father’s commitment to

move to the West Allegheny School District, but it also ignored both the ease

of maintaining friendships from Burgettstown and the fact that L.D.

participates in cultural, educational, and athletic activities in the Pittsburgh

area that are specific to neither Imperial nor the West Allegheny School

District. Thus, contrary to the trial court’s assessment, the record bears out

that remaining in the Pittsburgh region would limit the disruptions to L.D.’s

routines, friendships, and existing athletic and cultural activities. Hence, the

trial court erred in concluding that, regardless of location, the disruption of

L.D.’s stability and routine was a fait accompli.

      For all of the foregoing reasons, the record will not sustain the trial

court’s consideration of the § 5337(h) relocation factors.     Specifically, the

trial court erred in (1) finding that Mother would not further thwart Father’s

relationship with L.D. following relocation; (2) ignoring that Mother’s

principal motivation was to return to her native state of Florida and her

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concern for L.D.’s developmental condition was secondary; (3) accepting as

adequate, Mother’s chiefly symbolic search for employment opportunities in

Pennsylvania; and (4) concluding that Mother’s financial condition was so

strained that relocation to Florida was unavoidable.       The foregoing errors

implicate five of the ten factors listed in 23 Pa.C.S. § 5337(h)(2), (3), (5),

(6), and (7).    Collectively, these errors warrant reversing the trial court’s

decision to grant Mother’s petition for relocation.        As the trial court's

conclusions are unreasonable as shown by the evidence of record, we cannot

accept the court’s conclusion that relocation is in L.D.’s best interest.

      Mindful that the trial court’s denial of Father’s request for primary

custody was premised upon L.D.’s relocation to Florida with Mother, we

reverse the July 31, 2015 order that granted Mother’s petition to relocate to

Florida and denied Father’s amended petition to modify custody and award

him primary physical custody.      As our determination disturbs the overall

scheme of the trial court’s custody arrangement, we direct the court to

fashion an appropriate custody order that accounts for L.D.’s return to

Pennsylvania in Father’s primary custody. If Mother seeks to retain primary

custody of her son in Pennsylvania, she must file a petition for modification

pursuant to § 5338(a) and the trial court will render a custody determination

utilizing the § 5328(a) best-interest factors in light of the then-existing

circumstances.




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      Order reversed.     Matter remanded with directions.   Jurisdiction

relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/15/2016




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