J-A14030-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 G.R.R.                                     :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
              v.                            :
                                            :
                                            :
 C.L.R.                                     :
                                            :
                     Appellant              :   No. 1844 WDA 2019

              Appeal from the Order Dated November 18, 2019
     In the Court of Common Pleas of Allegheny County Family Court at
                         No(s): FD 18-008000-005


BEFORE: SHOGAN, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY McLAUGHLIN, J.:                         FILED AUGUST 13, 2020

      C.L.R. (“Mother”) appeals from the order entered on November 18,

2019, in the Court of Common Pleas of Allegheny County, denying her request

for relocation and awarding shared physical and legal custody of the parties’

minor child C.R. (“Child”) to Mother and G.R.R. (“Father”). After review, we

affirm.

      Mother and Father were married in 1995 and had one daughter, C.R., in

2005. The parties separated in March 2017. At the time of separation, the

family was residing in the marital home in Bethel Park, Pennsylvania. Mother

thereafter moved to an apartment in Bethel Park and Father moved to Mount

Lebanon, approximately four miles away from Bethel Park. Father filed for

divorce in May 2018. One month later, Father filed a complaint for shared

physical and legal custody of the Child. After a failed reconciliation, the parties

entered into a marital settlement agreement, which provided that the parties
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would share legal custody of the Child but Mother would have primary physical

custody and Father would have liberal partial physical custody every Friday

from 6:00 p.m. to 10:00 p.m. and all other times, including overnights, as the

parties agreed. The divorce was finalized on February 22, 2019.

      Shortly thereafter, Mother filed a notice of proposed relocation seeking

to move with the Child to Epping, New Hampshire. Father filed a counter-

affidavit objecting to the proposed relocation. On June 25, 2019, the trial court

interviewed the Child in camera, with both parties’ counsel present and with

the understanding that the Child’s testimony would later be inserted into the

record of the trial. N.T., 6/25/19, at 2-3. A three-day trial took place on

October 15 and 21, 2019 and November 18, 2019, in which the court heard

testimony from 14 witnesses. On November 18, 2019, the trial court denied

Mother’s request for relocation and awarded the parties 50-50 physical

custody of the Child. Mother thereafter filed the instant appeal raising the

following 18 issues:

         1. Whether the lower court erred in refusing to permit
         additional testimony of 15-year-old honor student Child,
         while denying Mother’s request to appoint a guardian ad
         litem on her behalf where the relocation/custody evaluation
         was performed by a dependency evaluator?

         2. Whether the lower court erred in failing to proceed on the
         day and time scheduled for Mother’s relocation expedited
         hearing but relied on evidence mainly manufactured by
         Father during his delay?

         3. Whether the lower court erred in permitting anti-religion
         evidence after the parties stipulated that the Child would
         make no religious decisions until after she was [18] years of
         age?

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       4. Whether the lower court erred in relying on the
       psychological evaluation done by a dependency evaluator,
       who in [30] years has only ever done this relocation
       evaluation? (see #1 above)

       5. Whether the lower court erred in relying on the testimony
       of Father’s childhood friend who hasn’t see the Child in
       years, over the testimony of the parents of the Child’s best
       friend while limiting Mother’s numerous other supporting
       witnesses who would be “redundant?”

       6. Whether the lower court erred in ignoring Father’s
       pornography “hobby”?

       7. Whether the lower court erred in ruling on Father’s shared
       custody complaint filed in June 2018 which had been
       dismissed prior to the hearing?

                            Relocation Factors

       8. Whether the lower court erred in its analysis of the Child’s
       parental relationships?

       9. Whether the lower court erred in its analysis of the needs
       of the Child and impact of relocation on the Child?

       10. Whether the lower court erred in its analysis of the
       feasibility of preserving the relationship between the non-
       relocating party and the Child through suitable custody
       arrangements?

       11. Whether the lower court erred in its analysis of the age
       and maturity of the Child whose principal testified she was
       a wonderful student?

       12. Whether the lower court erred in its determination of
       the established pattern of conduct of the parties in
       promoting or affording the relationship of the Child with the
       other party?

       13. Whether the lower court erred for sustaining Father’s
       reason/motivation for opposing relocation where Mother
       offered to bear the cost?

                              Custody Factors

       14. Whether the lower court erred in its analysis of the
       Child’s need for stability and continuity in education, family

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            and community life where the parties had moved twice
            before with no ill effects on the Child?

            15. Whether the lower court erred in its analysis regarding
            the availability of extended family when Father seldom
            visited his family, and the Child visited even less?

            16. Whether the lower court erred in its analysis of the
            Child’s sibling relationships where Father was inclined to
            allow the Child to continue her relationship with her sister,
            Kara, when Mother testified that Kara was in an abusive
            relationship and that her 10-year-old son had been abusing
            the Child?

            17. Whether the lower court erred in its analysis of which
            party is more likely to attend to the daily physical,
            emotional, developmental, educational and special needs of
            the Child where it relied on Father’s activities with the Child
            12 years ago?

            18. Whether the lower court erred in its analysis of each
            parties’ availability to care for the Child or to make
            appropriate childcare arrangements by relying on Father’s
            unsubstantiated promises and limiting Mother’s witnesses?

Mother’s Br. at Table of Contents (suggested answers and unnecessary

capitalization omitted).

      We apply the following standard of review when reviewing a custody

decision:

            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

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         trial court only if they involve an error of law, or are
         unreasonable in light of the sustainable findings of the trial
         court.

V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa.Super. 2012) (citations omitted).

      The paramount concern when a trial court orders a form of custody is

the best interests of the child. S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa.Super.

2014). “A determination of the best interests of the child is based on

consideration of all factors which legitimately have an effect upon the child’s

physical, intellectual, moral, and spiritual well-being.” L.F.F. v. P.R.F., 828

A.2d 1148, 1152 (Pa.Super. 2003). Specifically, the factors that a trial court

must consider when awarding custody are set forth at 23 Pa.C.S.A. § 5328(a)

of the Child Custody Act, which provides:

         (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.



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        (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.

        (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).




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       In addition, the factors that trial courts must consider when ruling on a

request to relocate1 are set forth at Section 5337(h):

          (h) Relocation factors.—In determining whether to grant
          a proposed relocation, the court shall consider the following
          factors, giving weighted consideration to those factors which
          affect the safety of the child:

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

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

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

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

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

          (6) Whether the relocation will enhance the general quality
          of life for the party seeking the relocation, including, but not
          limited to, financial or emotional benefit or educational
          opportunity.


____________________________________________


1 Our child custody statute defines “relocation” as “[a] change in a residence
of the child which significantly impairs the ability of a nonrelocating party to
exercise custodial rights.” 23 Pa.C.S.A. § 5322(a).




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         (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(h).

      At the outset, we note that the majority of Mother’s issues are waived

or undeveloped. We will address each of Mother’s 18 issues in turn.

Issue 1:

      In her first issue, Mother purports to claim that the trial court erred

when it failed to interview the Child a second time and did not appoint a

guardian ad litem (“GAL”) for the Child.

      The record reflects that the trial court conducted an on-the-record in

camera interview with the Child on June 25, 2019. Counsel for both parties

were present. The court made it clear that the interview was intended to be

used at the future trial and that the Child would not be called back to testify,

absent compelling circumstances. At the outset of the hearing, the following

exchange occurred:

         THE COURT: And it’s our understanding that this interview,
         absent compelling circumstances indicating otherwise, that
         you both agree that this interview will be used, inserted into
         the record of the trial in this case if indeed this matter goes
         to trial. Is that your understanding?



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J-A14030-20


         [FATHER’S COUNSEL]: Yes, Your Honor. Can my client
         preserve his right to recall the [C]hild at another date and
         time if necessary?

         THE COURT: I would think that we would be looking for a
         compelling reason if something comes up at the trial that
         would require that from the [C]hild. But in the case in chief,
         we wouldn’t expect it absent compelling circumstances. If
         something happens in the course of the trial, I think, of
         course, that would be preserved.

         [FATHER’S COUNSEL]: Just for the record, we were not on
         notice that the [C]hild would be present today. We had no
         time to prepare.

         THE     COURT:     This   is   an   expedited      relocation
         conciliation/hearing. And since the [C]hild was brought to
         court, I decided to meet the 14-year old [C]hild to talk with
         her[,] with you and [M]other’s counsel [] in the courtroom.
         Okay. Understood, [Mother’s counsel]?

         [MOTHER’S COUNSEL]: Yes, Your Honor.

         THE COURT: We aren’t going to use the [C]hild at the trial
         unless we have to. What I extract from her in my discussion
         now will be it unless if compelling circumstances to the
         contrary.

N.T., 6/25/19, at 2-4 (emphasis added).

      The record indicates that Mother’s counsel did not lodge any objection

and in fact, expressly agreed to the procedure. An order was also entered the

same day that stated that the “[p]arties have agreed that [the] in camera

interview of [the Child] conducted today will be incorporated into [the] trial

record, with [the] goal of sparing [C]hild, absent compelling reason, from

having to testify again.” Trial Court Order, 6/25/19. Further, Mother failed to

argue later at trial that compelling circumstances existed that required the

Child to testify a second time. It is well-established that,


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          [i]n order to preserve an issue for appellate review, a party
          must make a timely and specific objection at the appropriate
          stage of the proceedings before the trial court. Failure to
          timely object to a basic and fundamental error will result in
          waiver of that issue. On appeal the Superior Court will not
          consider a claim which was not called to the trial court’s
          attention at a time when any error committed could have
          been corrected. In this jurisdiction…one must object to
          errors, improprieties or irregularities at the earliest possible
          stage of the adjudicatory process to afford the jurist hearing
          the case the first occasion to remedy the wrong and possibly
          avoid an unnecessary appeal to complain of the matter.

Thompson v. Thompson, 963 A.2d 474, 475-76 (Pa.Super. 2008) (quoting

Hong v. Pelagatti, 765 A.2d 1117, 1123 (Pa.Super. 2000)). Mother has

failed to preserve this issue for review and she therefore has waived the issue.

       Mother next argues that because the Child’s psychological evaluation

was performed by a dependency evaluator, she was entitled to the

appointment of a GAL. Mother claims that “the evaluator admitted she did

dependency cases and only maybe [4] custody evaluations in her [30] years”

and that “[i]n dependency cases, the minor child must have adequate

representation of counsel.” Mother’s Br. at 16. Mother’s argument is without

merit.

       “Appointment of a GAL in a custody matter is not mandatory.” M.B.S.

v. W.E., ___ A.3d ___, 2020 PA Super 118, *5, n. 6 (filed May 19, 2020)

(citing Pa.R.C.P. 1915.11-2).2 Further, the record indicates that the evaluator
____________________________________________


2 Pennsylvania Rule of Civil Procedure 1915.11-2 states: “The court may, on
its own motion or the motion of a party, appoint a [GAL] to represent the best
interests of the child in a custody action.” (emphasis added).



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was qualified as an expert in the field of psychology and custody of minors,

not in dependency, and had conducted approximately 18 to 20 custody

evaluations. N.T., 10/15/19, at 6-8. The trial court determined that it was not

necessary to appoint a GAL because it “was presented with an intelligent,

verbal child who had no apparent difficulty communicating with the [c]ourt,

with a thorough psychological evaluation, and with competent counsel

presenting relevant information.” Trial Court Opinion, filed Feb. 18, 2020, at

2. We find no error by the trial court in declining to appoint a GAL.

Issue 2:

      Mother next argues that the trial court erred in failing to proceed on the

day and time scheduled for her relocation expedited hearing. We find that

Mother has waived this issue.

      The record reveals that after Father filed a counter-affidavit objecting to

Mother’s   proposed    relocation,   the   trial   court   scheduled    an   initial

conciliation/hearing on June 25, 2019. Mother states that she and the Child

appeared at the conciliation/hearing on June 25, 2019 ready to proceed but

the trial court indicated that it had motion’s court and was not able to conduct

the hearing that day. Mother’s Br. at 5. The court offered to hear the matter

in the next two days but Father’s counsel was not available. Id. at 21. The

court then offered two days in July, which was the following month, but

Mother’s counsel was available on only one of those days and Father’s counsel

was not available on either proposed day. Id. Mother states that the “docket




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clerk, unfortunately, had no other available dates until October 15…thus

placing Mother and [C]hild in additional stress caused by the delay.” Id.

      Significantly, Mother does not argue that she objected to the delay or

that she requested a more timely trial date, and a review of the record reveals

no such objection or request was made. Accordingly, Mother has failed to

preserve this issue and therefore it is waived. See Thompson, 963 A.2d at

475-76.

Issue 3:

      Mother asserts that “the lower court erred in permitting anti-religion

evidence after the parties stipulated that the Child would make no religious

decisions until after she was [18] years of age.” Mother’s Br. at 24. Mother

seemingly argues that the trial court erred in permitting Father’s expert in the

Jehovah’s Witness religion to testify at trial. However, Mother’s argument

consists of general rambling statements about religion in custody cases and

primarily relies on an article published by the Pennsylvania Family Law

Practice and Procedural Manual, which was not part of the record. Mother has

presented no argument explaining how the court erred and includes no citation

to the record to support her argument. It is not this Court’s obligation to

formulate an appellant’s argument for her “nor shall we scour the record to

find evidence to support an argument.” Commonwealth v. Beshore, 916

A.2d 1128, 1140 (Pa.Super. 2007) (en banc). Mother has thus waived this

claim by failing to present a developed argument. See Commonwealth v.

Johnson, 985 A.2d 915, 924 (Pa. 2009) (stating “where an appellate brief

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fails to provide any discussion of a claim with citation to relevant authority or

fails to develop the issue in any other meaningful fashion capable of review,

that claim is waived”).

         Even if the issue was not waived, the trial court specifically stated in its

Pa.R.A.P. 1925(a) opinion that it did not rely upon this expert’s testimony in

reaching its findings and conclusions. Trial Ct. Op., at 3. Accordingly, Mother’s

claim fails.

Issue 4:

         Mother’s fourth issue is that the lower court erred in relying on the

psychological evaluation done by a “dependency evaluator” who had never

done a relocation case before. Mother’s Br. at 12.

         Mother did not object to the evaluator’s qualifications as an expert

witness at the time of trial nor did she file a motion in limine attempting to

disqualify the evaluator. As previously stated, the failure to timely object to

an alleged error will result in waiver of that issue. See Thompson, 963 A.2d

at 475-76. Thus, this claim is waived.

Issue 5:

         Mother’s fifth issue is that “the lower court erred in relying on the

testimony of Father’s childhood friend who hasn’t see the Child in years, over

the testimony of the parents of the Child’s best friend while limiting Mother’s

numerous other supporting witnesses who would be ‘redundant’.” Mother’s Br.

at 39.




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      Inexplicably, despite its title, the body of Mother’s argument under this

issue does not mention these witnesses at all or how the court allegedly relied

on the testimony. Instead, it contains confusing information about, inter alia,

the family’s counseling sessions, the Child’s attendance at school, and the

schools in New Hampshire. Thus, Mother has again waived this claim by failing

to present a developed argument. See Johnson, 985 A.2d at 924; see also

Pa.R.A.P. 2119(a) (each point treated in an argument must be “followed by

such discussion and citation of authorities as are deemed pertinent”).

Issue 6:

      Mother next argues that the lower court erred in ignoring Father’s

pornography “hobby.” Mother’s Br. at 41.

      At trial, there was testimony that the Child found a pornographic image

in the browser history of Father’s phone on one occasion. The trial court found

that this incident, while clearly unfortunate, did not constitute evidence of a

“hobby” on the part of Father and “did not appear to have any discernable,

relevant impact upon the [C]hild.” Trial Ct. Op., at 4.

      Mother’s argument with respect to this issue does not contain a single

citation to the record or to any legal authority. Rather, her argument consists

of general statements about the impact of pornography on children from an

article by the American College of Pediatricians. Mother’s Br. at 41-42. The

only instance of when Mother mentions the present case is when she

seemingly takes issue with the family counselor’s decision not to address the

pornography incident in therapy, which does not explain how the trial court

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allegedly erred.3 Again, Mother has failed to present a developed argument

and thus is afforded no relief. See Johnson, 985 A.2d at 924.

Issue 7:

       Mother argues that the trial court erroneously ruled on Father’s shared

custody complaint because it had been dismissed prior to the trial. Specifically,

Mother contends that Father’s initial custody complaint that he filed in June

2018 was dismissed in December 2018 after the parties entered into their

marriage settlement agreement. Mother asserts that since Father’s custody

complaint was dismissed, the court was without jurisdiction to modify custody

at the relocation hearing. According to Mother, her request for relocation did

not place custody at issue. However, the record does not support Mother’s

claim.

       The record indicates that although Father’s initial complaint was

dismissed in December 2018, Father filed a counter-complaint seeking a


____________________________________________


3 To illustrate, Mother confusingly states: “Although Father’s casual dismissal
of [the Child’s] finding pornographic material that was uncensored on the cell
phone he gave her, due to embarrassment, and there has been no evidence
presented through the trial that pornography contributed to the divorce, the
fact that the counselor he chose to improve his interaction with the [C]hild,
did not address the issue, was clearly not an experienced pediatric counselor,
[who] made clear to the parties, [the Child] would not be forced to attend.”
Mother’s Br. at 43.




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modification of custody on October 1, 2019, shortly before the relocation

hearing. The court entered an order that same day indicating that Father’s

request for modification of custody would be heard at the same time as the

relocation hearing. Trial Court Order, 10/1/19. Mother filed a motion to strike

the October 1, 2019 order and requested dismissal of Father’s request for

modification of custody. The court denied Mother’s motion to strike on October

15, 2019. Thus, Mother was clearly provided adequate notice that modification

of custody was to be at issue at the hearing. See S.W.D. v. S.A.R., 96 A.3d

396, 405-06 (Pa.Super. 2014) (stating “if notice of the proceeding adequately

advises a party that custody will be at issue, a court may entertain the request

to permanently modify a custody order after hearing in that proceeding”).

Accordingly, Mother’s claim is without merit.

Issues 8-18:

      Mother’s remaining claims take issue with the trial court’s analysis of

the custody and relocation factors under 23 Pa.C.S.A. § 5328(a) and 23

Pa.C.S.A. § 5337(h), respectively. In its Pa.R.A.P. 1925(a) opinion, the trial

court suggested that these issues be deemed waived because Mother’s

Pa.R.A.P. 1925(b) Statement was “too vague to determine the specific error

at issue.” Trial Ct. Op., at 1.

      The Rules of Appellate Procedure provide that a Rule 1925(b) Statement

“shall concisely identify each error that the appellant intends to assert with

sufficient detail to identify the issue to be raised for the judge.” Pa.R.A.P.

1925(b)(4)(ii). “Issues not included in the Statement and/or not raised in

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accordance with the provisions of this [Rule] are waived.” Pa.R.A.P.

1925(b)(4)(vii). When a Rule 1925(b) Statement is “too vague to allow the

court to identify the issues raised on appeal[, it] is the functional equivalent

of no Concise Statement at all” and waiver is proper. In re A.B., 63 A.3d 345,

350 (Pa.Super. 2013) (citation omitted).

      We agree with the trial court that Mother has waived issues eight

through 18 because her 1925(b) Statement as to these issues is too vague.

See Pa.R.A.P. 1925(b)(4). The issues lack specificity such that the trial court

was unable to ascertain the precise nature of Mother’s complaints. As such,

these claims are waived.

      Even if these issues are not waived, Mother’s claims are without merit.

All of Mother’s challenges go to the trial court’s conclusions and assessments

and asks this Court to re-find facts, re-weigh evidence and/or re-assess

credibility to her view of the evidence. This we cannot do. “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.”

J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa.Super. 2011) (quoting Durning v.

Balent/Kurdilla,      19     A.3d    1125,     1128      (Pa.Super.     2011)).

Further, “with regard to issues of credibility and weight of the evidence, we

must defer to the presiding trial judge who viewed and assessed the witnesses

first-hand.” Id.

      Here, the trial court evaluated each custody and relocation factor and

clearly articulated the reasons for its decision in open court. See N.T.,

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11/18/19, at 189-226. We find that the trial court did not err or abuse its

discretion in its decision regarding custody or relocation. The trial court

soundly analyzed the custody and relocation factors pursuant to Section

5328(a) and Section 5337(h), and after review of the record, we determine

that the trial court’s findings and determinations are supported by competent

evidence in the record. Accordingly, Mother is not due any relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/13/2020




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