J-A18031-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

  D.W.G.,                                  : IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                    Appellant              :
                                           :
               v.                          :
                                           :
  L.F.,                                    :
                    Appellee               : No. 4084 EDA 2017


             Appeal from the Order Entered November 14, 2017
            in the Court of Common Pleas of Philadelphia County
                     Family Court at No(s): 0C1601574

BEFORE:     STABILE, J., STEVENS, P.J.E.* and STRASSBURGER, J.**

MEMORANDUM BY STRASSBURGER, J.:                  FILED OCTOBER 31, 2018

      D.W.G. (Father) appeals from the order entered November 14, 2017,

which awarded shared legal and physical custody of Father’s minor son, N.G.

(Child), born in December 2015, to Father and Child’s biological mother, L.F.

(Mother), and denied Mother’s relocation. After review, we affirm.

             The parties, who have never been married, lived together in
      an apartment located in the Northeast section of Philadelphia for
      approximately one month before Mother gave birth to [Child] in
      December of 2015. They continued to live together until mid-
      December of 2016, at which time Father moved out of the parties’
      shared residence and began to live with his parents who have a
      residence nearby in Philadelphia.1 On December 19, 2016, Mother
      left the parties’ Philadelphia apartment with [Child] and moved to
      her parents’ home in Greencastle, Franklin County, an
      approximate three-hour drive from Philadelphia.2 Mother testified
      that she left Philadelphia in December of 2016 due to arguments
      and fighting between the parties. She moved to Greencastle
      where she grew up and where her parents, sister and brother-in-
      law live. Other than [Child], Mother has no familial ties to


*Former Justice specially assigned to the Superior Court.

**Retired Senior Judge assigned to the Superior Court.
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     Philadelphia. Mother currently works full-time as an insurance
     agent in Hagerstown, Maryland.
           __________
           1 Father testified that he stopped living at the parties’

           apartment on December 13, 2016, due to an incident
           between them which resulted in police intervention.

          2  Because Mother left Philadelphia with [Child] on
          December 19, 2016, Father spent neither [Child’s]
          first birthday nor Christmas with [Child].

            On December 21, 2016, Father filed a complaint for shared
     legal custody and primary physical custody of [Child].         On
     December 27, 2016, Father filed a petition for expedited relief.3
     On February 3, 2017, the [family court] held a hearing on the
     petition for expedited relief and entered a temporary custody
     order providing for shared legal custody and shared physical
     custody. Pursuant to the temporary custody order, physical
     custody was on a week[-]to[-]week basis with exchanges to take
     place at noon on Sundays at a designated police district in
     Philadelphia. If Mother remained in Philadelphia, the custody
     exchanges were to occur every two days and on alternate
     weekends. The non-custodial parent was entitled to have daily
     “facetime” contact with [Child] at 6:00 p.m. for ten minutes. The
     matter was directed to be rescheduled for a relocation hearing,
     along with Father’s complaint.4 (Father had already filed a
     counter-affidavit to Mother’s relocation on February 2, 2017.)
            _________
            3 On December 29, 2016, Mother sought and obtained

            a temporary protection from abuse order against
            Father. That order was vacated after a hearing on
            January 13, 2017.

          4 Mother filed a pro se petition to modify on May 8,
          2017, which petition was heard by a Master in August
          of 2017, and scheduled for trial in April 2018. That
          trial was cancelled after the entry of the instant order
          on appeal, which addressed all then-pending custody
          pleadings.

           Both   parties appeared before the [family court] with their
     respective    counsel for the custody/relocation hearing on
     November     14, 2017. At that time, Father was thirty-one (31)
     years old.   He has a bachelor’s of science degree in science and

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     psychology and he testified that he works for an agency providing
     services to adults with intellectual disabilities. His typical work
     schedule is Sunday, Monday, Friday, and Saturday, from 4:00
     p.m. to 12:00 a.m. When Father is working, [Child] is with
     Father’s parents, and they all continue to reside in the same
     residence. Father has two sisters, and they and their families live
     near Father and his parents.

           During the summer of 2017, Father spent his days off,
     Tuesday, Wednesday, and Thursday, with [Child] and his
     extended family at their shore home in North Wildwood, New
     Jersey. The drive from Philadelphia to North Wildwood takes
     approximately one and a half hours. Father also took vacation
     time to spend with [Child] and his family at the New Jersey shore.

           Regarding medical care for [Child], Father testified that
     [Child] is treated by physicians at Tri-County Pediatrics in
     Philadelphia. In May of 2017, Mother advised Father that she was
     switching [Child’s] care to a pediatrician located in Waynesboro,
     Pennsylvania, approximately three hours from Philadelphia.
     Father objected to changing doctors because he alleged that a
     change would not be beneficial for [Child], and because Mother
     never gave Father information about the Waynesboro pediatrician.
     Father prefers for [Child] to be treated at an urgent care facility
     when [Child] is in Mother’s care in Greencastle. Mother testified
     that she would like [Child] to have a pediatrician in both
     Philadelphia and Greencastle/Waynesboro.

            Father testified that [Child] has no medical problems.
     However, Father testified that [Child] has had two ear infections
     over the past three to four months and hives in January 2017. In
     January of 2017, Mother took [Child] to St. Christopher’s Hospital
     in Philadelphia without prior notice to Father in order to obtain a
     second opinion regarding the origin of the hives. Father stated
     that while [Child] has not yet begun to speak, he was advised by
     the [Child’s] pediatrician that there was no cause for concern
     about speech until [Child] reached the age of three. Mother
     testified that she is concerned with the development of [Child’s]
     speech.

           Father testified that he planned for [Child] to start attending
     pre-school in September of 2018, on a part-time basis, on
     Mondays, Wednesdays, and Fridays. Two of the pre-schools
     Father had contacted advised him that [Child] would not be

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      eligible to attend either one in September 2018 since he would
      not yet be three years old. Father visited two other pre-school
      programs and he formed a preference for “Over the Rainbow”
      [school] for [Child] starting in September 2018 on a part-time
      basis, Mondays, Wednesdays, and Fridays.           Father has not
      discussed the prospect of [Child’s] going to pre-school with
      Mother. Mother testified that she did not think that [Child] had to
      go to pre-school and that she and Father had not yet discussed
      the matter. Mother does not consider it impossible for [Child] to
      attend either daycare or pre-school while he is in her custody and
      to attend [] pre-school while in Father’s custody.

            In anticipation of sending [Child] to kindergarten in
      Philadelphia, Father identified two schools, a charter school and
      the elementary school that [Father] and his siblings attended.
      Father and Mother have never discussed with each other where
      [Child] would go to school. Mother testified that she would want
      [Child] to go to an elementary school in Greencastle.

            Father’s preferred custodial arrangement would be for him
      to have primary physical custody with Mother having partial
      physical custody every other weekend. Father testified that the
      prospect of [Child] living primarily with Mother in Greencastle
      causes him to be afraid because he does not know what Mother
      would tell [Child] about him. Father stated, “It scares me a lot,
      as he gets older, what they’re going to say about me, who I am,
      as a person and as a dad.”

            Mother’s suggested custodial schedule would be for Father
      to have partial physical custody every Tuesday, Wednesday, [and]
      Thursday in Philadelphia. Mother would pick up [Child] on Friday
      and do all the driving for both drop off and pick up. The custody
      exchange would take place at a location approximately half way
      between Greencastle and Philadelphia, near exit 266 of the
      Pennsylvania Turnpike.

Trial Court Opinion (TCO), 4/19/2018, at 1-5 (citations to the record omitted).

      Following the custody and relocation hearing, the family court issued an

order awarding Father and Mother shared legal and physical custody of Child,

and finding that “Mother ha[d] not met her burden in establishing that the


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proposed relocation of [] Child from Philadelphia, PA to Greencastle, PA is in

the best interest of [] Child.” Order, 11/14/2017, at 1-2. The court ordered

each parent to have shared physical custody of Child on an alternating weekly

basis, with exchanges taking place on Tuesdays at 5:00 p.m. at a midpoint

between the parties’ locations. Id. at 1. The family court permitted Mother

to exercise her physical custody in Greencastle, permitted the parents to use

different pediatricians for Child in their respective locations, and set a holiday

schedule. Id. at 2.

      On December 14, 2017, Father filed a notice of appeal, as well as a

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

1925(a)(2)(i) and (b). The family court issued its Rule 1925(a) opinion on

April 19, 2018.

      Father raises the following issues for our review.

      1. Whether the [family] court erred as a matter of law by
         concluding that “Mother has not met her burden in establishing
         that the proposed relocation of [Child] from Philadelphia, PA to
         Greencastle, PA is in the best interest of [Child]” yet avoiding
         making a decision on the very claim at issue, relocation, by
         specifically stating, “I’m not doing it today, but eventually,
         either the living arrangements are going to change – the
         location, you’re going to have another custody trial or you’re
         going to make a resolution.”

      2. Whether the [family] court erred as a matter of law by
         concluding that “Mother has not met her burden in establishing
         that the proposed relocation of [Child] from Philadelphia, PA to
         Greencastle, PA is in the best interest of [Child]” yet specifically
         allowing each parent to utilize [his or her] own selected
         pediatrician during [his or her] weeks of physical custody such
         that the result is that [Child’s] primary pediatrician will be
         located in Greencastle, PA during Mother’s every other custody

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          weeks despite the [family court’s] express disapproval of
          relocation.

     3. Whether the [family] court erred as a matter of law by
        concluding that “Mother has not met her burden in establishing
        that the proposed relocation of [Child] from Philadelphia, PA to
        Greencastle, PA is in the best interest of [Child]” which
        conclusion clearly disapproved the proposed relocation yet
        allowed said relocation to occur as the [family] court
        established [Child] as a half[-]time resident of the disapproved
        geographical area by ordering that Mother could exercise her
        shared physical custody in Greencastle, PA and ordering that
        Father, the non-relocating party, be responsible for half of the
        transportation time of [Child] to Greencastle, PA.

Father’s Brief at 12-13 (reordered and unnecessary capitalization omitted).

     We address Father’s claims mindful of our well-settled standard of

review.

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

P.J.P. v. M.M., 185 A.3d 413, 417 (Pa. Super. 2018) (citations and internal

quotation marks omitted).

     “When a trial court orders a form of custody, the best interest of the

child is paramount.” Id., quoting S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa.




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Super. 2014). The factors to be considered by a court when awarding custody

are set forth at 23 Pa.C.S. § 5328(a).

     (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.

           (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.

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

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

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

            (14) The history of drug or alcohol abuse of a party or
            member of a party’s household.

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

            (16) Any other relevant factor.

23 Pa.C.S. § 5328(a).

      When a party seeks to relocate, he or she bears the burden of proving

that relocation will serve the best interests of the child, as determined by a

consideration of the following factors. 23 Pa.C.S. § 5337(h), (i)(1).

      (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.


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            (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).

      In this case, with both relocation and custody at issue, consideration of

both sets of factors was required. A.M.S. v. M.R.C., 70 A.3d 830, 836 (Pa.

Super. 2013) (“The trial court must consider all ten relocation factors and all

sixteen custody factors when making a decision on relocation that also


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involves a custody decision.”). “[O]n issues of credibility and weight of the

evidence, we defer to the findings of the trial [court, which] has had the

opportunity to observe the proceedings and demeanor of the witnesses. A.V.

v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014) (citation and quotation marks

omitted).

      After considering the custody and relocation factors, the family court

determined it was in Child’s best interest to award Mother and Father shared

legal custody, and to award them shared physical custody on an alternating

weekly basis. TCO, 4/19/2018, at 6-11. The court further concluded that

Mother had not met her burden to establish that the proposed relocation of

Child from Philadelphia to Greencastle was in Child’s best interest. Id. With

respect to shared physical custody, the court set forth the day, time, and

location of exchanges, and permitted Mother to exercise her physical custody

of Child in Greencastle. Id. at 11.

      On appeal, the crux of Father’s arguments is that the family court’s

award of shared physical custody, which allows Mother to exercise her physical

custody in Greencastle, amounts essentially to a de facto relocation by Mother

to Greencastle. Father’s Brief at 26-27. Specifically, Father claims the family

court abused its discretion when it ordered a custody schedule that will need

to be revisited when Child is of school age, permitted the parents to use

different pediatricians for Child in their respective locations, and required




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J-A18031-18


Father to be responsible for half of the transportation for custody exchanges.

Id. at 19-32.

      We address these claims together as they all relate to Father’s

contention that the family court allowed a de facto relocation to occur. With

respect to the school issue, the family court addressed Father’s claims as

follows.

      Father fails to identify how the maintenance of continued shared
      physical custody does not serve the best interests of [Child].
      Father’s objections articulated at the hearing to shared physical
      custody are for the most part anticipatory of the time that [Child]
      would begin either pre-school or kindergarten, or both.

            As stated by Father in response to Mother’s counsel’s
      question regarding his objection to shared physical custody:

            Well, I think the sooner we – I think, with preschool
            soon to come up, and then eventually, in a couple of
            years, it’ll be kindergarten, I think the sooner we can
            establish him – some grounds for stability for our son
            [] and get him transitioned into the new routine, it
            might benefit him more than back and forth to
            Greencastle on the weekends.

      N.T.[, 11/14/2017,] at 91.

            Responding to his own counsel’s question regarding his
      objection to shared physical custody if Mother remains in
      Greencastle, Father stated:

            Because for [Child], when pre[-]school, kindergarten
            and elementary school come along, it just wouldn’t be
            – there’s no way that he could attend school for a
            week down here in Philadelphia, as well as a week up
            in Greencastle.

            So once he is enrolled here – when he’s enrolled here,
            it just provides more stability and more routine and
            it’s just to his benefit because, obviously, you can’t –

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           you can’t be in school in two different places, so, an
           adjustment would have to be made for that.

     N.T.[, 11/14/2017,] at 105-06.

            The [family court] rejected Father’s preference primarily
     because it was based upon concerns about the future and not
     based upon current circumstances. Certainly, as [Child] goes
     from being a toddler to an older child, the arrangements regarding
     physical custody may require modification of the [family court]
     order to accommodate [Child’]s educational needs. That in no
     way demonstrates that [the family court’s] order is not currently
     in the best interest of [Child] during a time in his young life that
     he is not even eligible to attend preschool. Rather, for a child just
     over the age of two, [Child’s] best interests are served by
     sustained weekly contact with each of his loving parents. Father’s
     focus upon inevitable changes that will occur in the future is
     misplaced as the [family court] is bound to look at the situation
     as it currently exists.

            Father’s emphasis upon pre-school [] fails to take into
     account Mother’s role in the decision as to whether [Child] should
     attend pre-school. Father testified that he had not discussed the
     prospect of [Child’s] going to pre-school with Mother, and she
     testified that she had not come to any conclusion [Child] would go
     to pre-school and that the issue had not been discussed between
     the parties. Additionally, Father’s proposed part-time pre-school
     schedule is accommodated by the order during the weeks that
     Father has custody.      Since Father has physical custody on
     Wednesdays, Fridays, and Mondays every other week, [Child]
     would be able to attend pre-school on the precise days that Father
     anticipates sending [Child] to pre-school. There is no evidence
     that [Child] would be barred from attending a pre-school where
     his attendance would be on an every other week basis rather than
     every week.

TCO, 4/19/2018, at 13-15 (emphasis in original).

     In addressing Father’s next claim relating to pediatricians, the family

court concluded that

     Father’s contention that [Child] should not have a pediatrician in
     both Philadelphia and Greencastle [] does not serve [Child’s] best

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      interests. The [family court] discerns no principled basis upon
      which Father bases his preference for [Child’s] going to the
      pediatric practice of Father’s choice in Philadelphia and visits to an
      urgent care facility in Greencastle. [Child’s] best interest is served
      by having an established relationship with a health care provider
      in each of the locations in which [Child] will be spending half of
      his time.

Id. at 15.

      And finally, the family court addressed Father’s last claim relating to

transportation by stating

      Father’s objection [] to his sharing the transportation of [Child] to
      a mid-way exchange location between Greencastle and
      Philadelphia is based upon Father’s own convenience. He does
      not explain how [Child’s] interests would be better served riding
      the entire three-hour trip between Greencastle and Philadelphia
      with Mother rather than splitting the trip by riding an hour and a
      half with each parent. The [family court] determined that Father
      would not bear an undue burden in driving once a week on one of
      his three days off for the hour and a half each way to the Manheim,
      Pennsylvania exchange point.           Father routinely drove an
      equivalent distance from his home in Philadelphia to North
      Wildwood, New Jersey to spend time at the shore with [Child] and
      his family during the summer months.

Id. at 15.

      Considering our standard of review and the great deference it affords to

the family court, we find no error in the court’s conclusions. Our review of the

record reveals the court adequately considered the statutory factors and

Father’s claims, and set forth its reasoning, supported by the record, for

awarding shared legal and physical custody.         While recognizing that the

custody order will likely need to be modified when Child is of school-age, the

family court analyzed correctly Child’s best interest at the time of the hearing.


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That the parties may need to modify the custody order in the future does not

amount to an abuse of discretion by the family court. Once a custody order

is in place, a court may modify it on petition “to serve the best interest of the

child.” 23 Pa.C.S. § 5338(a). Further, we find no error in the family court’s

determination relating to Child’s pediatricians. Because Child’s time is split

equally between the two locations and it provides continuity of care, it was

within the family court’s discretion to determine that establishing a

relationship with a pediatrician in each place serves Child’s best interest. We

likewise find no abuse of discretion in the family court’s order that the parents

meet at a midpoint between their locations for custody exchanges. Father has

not shown that such an arrangement is unduly burdensome for him, and in

fact, at the time of the hearing, the parties had already been doing just that

for several months.

      Despite Father’s protestations concerning Mother exercising her physical

custody in Greencastle, the family court, presiding over the trial and reviewing

all the testimony and evidence, found “for a child just over the age of two,

[Child’s] best interests are served by sustained weekly contact with each of

his loving parents.” Id. at 14. The family court determined that both parents

are capable of handling parental duties and maintaining a relationship with

Child to support his emotional needs; both parents offer stability and

continuity, are engaged in activities with Child, and have families available to

care for Child while they are working. Id. at 6-9. It found Child is well-taken


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care of by both parents. Id. at 7. The family court was clearly aware that

both parents are loving, have supportive families, and maintain beneficial

relationships between Child and their extended families, and thus, determined

it is in Child’s best interests to spend equal amounts of time with each parent.

Recognizing how difficult these custodial decisions are for family courts when

dealing with two loving and caring parents, we find that the court did not

abuse its discretion in allowing Mother to exercise her shared physical custody

in Greencastle.

      For the foregoing reasons, we conclude that the family court did not

abuse its discretion when it analyzed the factors set forth at 23 Pa.C.S.

§§ 5328 and 5337 to deny Mother’s proposed relocation and to award the

parties shared legal and physical custody of Child to serve Child’s best

interests. Because we find no abuse of discretion and conclude that none of

Father’s claims entitles him to relief, we affirm the order of the family court.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/31/18




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