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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

S.A.M.                                   :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                   v.                    :
                                         :
S.C.C.,                                  :
                                         :
                        Appellant        :
                                         :
                   v.                    :         No. 1422 MDA 2015
                                         :
H.R.                                     :


                   Appeal from the Order Dated July 20, 2015,
               in the Court of Common Pleas of Columbia County
                    Civil Division at No. 2010-CV-0001570-CU


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J. AND STEVENS, P.J.E.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED FEBRUARY 16, 2016

       S.C.C. (“Mother”) appeals from the order dated and entered on

July 20, 2015, in the Columbia County Court of Common Pleas, Civil

Division, granting S.A.M. (“Father”) the right to relocate E.M. (“Child”), born

in May of 2008, from Reading, Pennsylvania, to Sweeny, Texas, pursuant to

§ 5337(h) of the Child Custody Act (“the Act”), 23 Pa.C.S.A. § 5337(h). We

affirm.1



* Former Justice specially assigned to the Superior Court.
1
  H.R. is the Maternal Grandmother and was granted leave to intervene in
October 2014 by the trial court. She did not file a separate notice of appeal
but has filed a brief as appellee, to which Father was granted permission to
respond.
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      The relevant facts and procedural history of this case are as follows.

Mother and Father are the biological parents of Child. They never married

and separated within a week or two after Child’s birth in May 2008. (Trial

court opinion, 8/21/15 at 3.) Father resides in a two-bedroom apartment in

Reading, Berks County, Pennsylvania.        (Id. at 2.)   He is employed by

Aramark and makes a modest income. (Id. at 3.) Mother resides with her

boyfriend of two years in a residential area in Berwick, Columbia County,

Pennsylvania. (Id.) During the week, she works eight to ten hours for a

private cleaning service, and on Saturday or Sunday, she works a 12-hour

shift at Wise Foods. (Id.)

      Mother has two other minor children, M.G. and M.C. (together,

“Half-Siblings”).   (Id.)   M.G.’s father is incarcerated in Maryland.   (Id.)

M.C.’s father lives in Berwick but has never had any contact with M.C. (Id.)

Neither father pays child support. (Id.) Half-Siblings reside with Maternal

Grandmother, who lives approximately two blocks away from Mother. (Id.)

      This custody matter began on August 26, 2010, when Father filed a

complaint for custody, seeking primary physical custody of Child.           On

November 15, 2010, the trial court issued an order, awarding primary

physical and legal custody of Child to Mother and partial physical custody of

Child to Father. On April 7, 2011, the trial court modified the existing order,

awarding primary physical custody of Child to Mother, splitting legal custody

between the parents, and granting Father periods of partial physical custody



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to take place every other weekend, on designated holidays, and each

summer for one week.       On June 3, 2011, Father filed exceptions to the

custody arrangement.    On February 2, 2012, the trial court modified the

existing order, increasing Father’s partial physical custody of Child during

the summer to a period of four weeks.

      In August 2013, Mother began experiencing “emotional” problems,

which she and Maternal Grandmother characterized as depression. (Id. at

4.)   Consequently, thereafter Child began living primarily at Maternal

Grandmother’s residence.    (Id.)   In light of these events, on August 21,

2013, Father filed a petition for special relief, seeking primary physical

custody of Child. On September 17, 2013, the trial court issued an order,

effectively reversing the existing custody arrangement such that Father

obtained primary physical custody of Child while Mother was given partial

physical custody to take place every other weekend, on designated holidays,

and each summer for a period of four weeks. Further, the order specifically

granted Maternal Grandmother the right to exercise Mother’s custody rights

if Mother could or would not do so. (Id.) Subsequently, Child began living

with Father in Reading. (Id.)

      On September 16, 2014, Maternal Grandmother filed a petition to

intervene pursuant to Pa.R.C.P. 2327, and on October 16, 2014, the trial

court granted Maternal Grandmother leave to intervene.      On October 21,

2014, Maternal Grandmother filed a petition to modify custody, seeking



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partial physical custody of Child.     In her petition, Maternal Grandmother

argued that she stood in loco parentis to Child, averring that, at the time

the September 17, 2013 order was entered, Child had been residing at her

residence for a period in excess of three months and that she had assumed

and was fulfilling the role of Child’s parent. (Maternal grandmother’s petition

for modification, 10/21/14 at 2 (unpaginated).) On February 20, 2015, the

trial court issued an order, effectively entitling Maternal Grandmother to

Mother’s custody rights. (Trial court opinion, 8/21/15 at 4.) On March 13,

2015, Father filed exceptions to the trial court’s ruling.

      On May 13, 2015, Father filed a notice of proposed relocation, seeking

the right to relocate Child from Reading to Sweeny, Texas, his hometown.

Father stated that the reason for the proposed relocation was so that he and

Child could be near his family, which encompasses his parents, a brother

and   two   sisters,   multiple   nieces    and   nephews,   grandparents,   and

great-grandparents, almost all of whom live within a 30-mile radius of

Sweeny.     (Id. at 5.)    On May 15, 2015, Maternal Grandmother filed a

counter-affidavit to the proposed relocation. On May 20, 2015, Mother filed

a notice of intention to reassert custody/visitation rights, and then, on

May 29, 2015, she, too, filed a counter-affidavit to the proposed relocation.

      On July 15, 2015, the trial court held a hearing on Father’s exceptions

and notice of proposed relocation, and Mother’s notice of intention to

reassert custody/visitation rights.        At the hearing, Mother, Father, and



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Maternal Grandmother each testified on his or her own behalf.             R.M.

(“Paternal Grandfather”) also testified in support of Father.     On July 20,

2015, the trial court issued the underlying order, awarding primary physical

and legal custody of Child to Father and granting Father the right to relocate

Child to Sweeny. The trial court’s order also awarded Maternal Grandmother

shared legal custody of Child during her periods of partial physical custody in

the summer, on Christmas, and during spring break, and granted Mother

partial physical custody, as to be agreed upon between her and Maternal

Grandmother. On August 10, 2015, Mother filed a timely notice of appeal

but failed to simultaneously file a concise statement of errors complained of

on appeal, in contravention of Pa.R.A.P. 1925(a)(2)(i) and (b). Thereafter,

on August 20, 2015, Mother filed a concise statement of errors complained

of on appeal.2

      On appeal, Mother raises six issues for our review:

            1.    Did the trial court commit an error of law in
                  failing to take into consideration the bond
                  between [Child] and [Half-Siblings]?

            2.    Did the trial court commit an error of law in
                  failing to consider the bond between the
                  maternal family and [Child], which will be
                  broken due to the granting of the relocation
                  petition allowing [Child] to move to Texas?


2
  Although Mother failed to comply with Pa.R.A.P. 1925(a)(2)(i) and (b),
relating to children’s fast track appeals, we decline to dismiss or quash her
appeal. See In re K.T.E.L., 983 A.2d 745, 747 (Pa.Super. 2009). Here,
Mother filed her Rule 1925(b) statement 19 days after filing the notice of
appeal.


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              3.   Did the trial court commit an error of law in
                   failing to consider the fact that [Father] was
                   not involved in [Child’s] life during the early
                   portion of [Child’s] life?

              4.   Did the trial court commit an error of law in
                   failing to consider the abuse of [Father]
                   towards one of [Half-Siblings]?

              5.   Did the trial court commit an error of law in
                   failing to take into consideration the safety of
                   [Child] while relocating to Texas?

              6.   Did the trial court commit an error of law and
                   abuse of discretion in determining that it would
                   be in the best interest of [Child] to move to
                   Texas with [Father] to be closer to [Father’s]
                   family when the testimony indicated that
                   [Father’s] family[,] while centralized in
                   Texas[,] had not lived there in the last 18
                   months?

Mother’s brief at 4.

      Intervenor, H.R., has filed a brief raising the issues that Father has not

met his burden as to relocation and the trial court failed to properly weigh

the factors enumerated in 23 Pa.C.S.A. § 5337.

      Initially, we observe that, as the custody relocation hearing in this

matter was held on July 15, 2015, the Act, 23 Pa.C.S.A. §§ 5321-5340, is

applicable.   C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa.Super 2012) (holding

that, if the custody evidentiary proceeding commences on or after the

effective date of the Act, i.e., January 24, 2011, the provisions of the Act

apply).

      In custody cases, our scope and standard of review is as follows:




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

Id. at 443 (citation omitted).

      We have stated:

                  [t]he discretion that a trial court employs in
                  custody matters should be accorded the
                  utmost respect, given the special nature of the
                  proceeding and the lasting impact the result
                  will have on the lives of the parties concerned.
                  Indeed, the knowledge gained by a trial court
                  in observing witnesses in a custody proceeding
                  cannot adequately be imparted to an appellate
                  court by a printed record.

Ketterer v. Seifert, 902 A.2d 533, 540 (Pa.Super. 2006) (citation omitted).

Further, with any custody case decided under the Act, the paramount

concern is the best interests of the child. See 23 Pa.C.S.A. §§ 5328, 5338.

“This standard requires a case-by-case assessment of all the factors that

may legitimately affect the physical, intellectual, moral and spiritual



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well-being of the child.”      M.J.M. v. M.L.G., 63 A.3d 331, 334 (Pa.Super.

2013) (citation omitted).

         A modification of an existing custody may take place if relocation is at

issue.

               If a counter-affidavit regarding relocation is filed with
               the court which indicates the nonrelocating party
               objects either to the proposed relocation or to the
               modification of the custody order consistent with the
               proposal for revised custody schedule, the court shall
               modify the existing custody order only after holding
               a hearing to establish the terms and conditions of
               the order pursuant to the relocation indicating the
               rights, if any, of the nonrelocating parties.

23 Pa.C.S.A. § 5337(f).

         Following the hearing, if relocation is permitted, the court shall modify

any existing custody order or set forth terms and conditions of any new

order. 23 Pa.C.S.A. § 5337(g).

         Section 5337(h) of the Act, 23 Pa.C.S.A. § 5337(h), sets forth the ten

relocation factors that a trial court must consider when ruling on a relocation

petition:

               (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



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                     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.




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                  (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).    Additionally, “as the party proposing relocation,

[Father] bears the burden of proving relocation will serve [Child’s] best

interests.”   S.J.S. v. M.J.S., 76 A.3d 541, 551 (Pa.Super. 2013), citing

23 Pa.C.S.A. 5337(i).

      In her brief on appeal, Mother argues that the trial court abused its

discretion in finding that Father satisfied his burden of proof that Child’s

relocation from Reading to Sweeny would serve Child’s best interest under

§ 5337(h). As to § 5337(h)(1), Mother contends that the trial court failed to

accord sufficient weight to the bond between Child and Half-Siblings and to

the detrimental impact that severing said bond will have on Child, which,

Mother asserts, would be the unavoidable consequence of Child’s relocation.

(Mother’s brief at 13-14.) Regarding § 5337(h)(7), Mother disputes the trial

court’s apparent supposition that Father’s reuniting with his family in Texas

will enhance Child’s general quality of life.    Rather, she suggests that

Paternal Grandfather’s testimony that he works nationwide as an electrician



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and has not been back to Texas in the last 18 months is indicative of what

little family support there will be available for Father and Child in Sweeny.

(Id. at 14.) Finally, with respect to § 5337(h)(9), Mother alleges that Father

bit M.G.’s face in a fit of rage and argues that the trial court did not give

adequate consideration to the continuing risk of harm which Father presents

to Child. (Id. at 15.) We disagree.3

      Here, the trial court found the following with regard to the relocation

factors:

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

            This weighs in favor of Father. He has had primary
            custody of [Child] for the last two years and has
            been the caring and nurturing parent. Prior to that
            time, he traveled almost two hours each way every
            other weekend, regularly and faithfully, to exercise
            his custody rights. When Father is not working he is
            with [Child] all the time. His bond with [Child] is
            seemingly strong.       Mother has had minimal
            involvement for the last two years. It is hard to say
            how strong the bond is since for the last two years
            she has seen [Child] on some weekends. [Maternal
            Grandmother] has been very involved with [Child]

3
  We note that Mother did not challenge the lack of a discussion of the
16 custody/best interests factors under § 5328(a) in the trial court’s opinion.
She has, therefore, waived that challenge. See Krebs v. United Refining
Company of Pennsylvania, 893 A.2d 776, 797 (Pa.Super. 2006) (holding
that an appellant waives issues that are not raised in both his or her concise
statement of errors complained of on appeal and the statement of questions
involved in his or her brief on appeal). We additionally note that Father has
had primary custody of Child since September 2013. He retains primary
custody in his relocation to Texas.


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          over the years, as a helper and surrogate for Mother
          and as a grandmother. During the last two years,
          she has been with [Child] every other weekend,
          some holidays, and time in the summer. [Child] has
          a bond with and has been in regular contact with
          [Half-Siblings].   They appear to get along well.
          [M.G.] is three grades (fifth grade) ahead of him and
          [M.C.] is two grades (kindergarten) behind him.
          During the last two (2) years, their contact with
          [Child] has been only during Mother’s custody
          periods of every other weekend, etc.

          “(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.”

          [Child] is seven years old and entering second grade.
          Father clearly is the proper party to have primary
          physical custody. Father’s family is in Texas. That
          family appears to be solid, well[-]educated,
          hardworking, and family[-]oriented. If Father stays
          in Reading, he likely will not have the opportunities
          and support systems that he will clearly have in
          Texas. Those support systems will be there for
          [Child] as well. At his age, [Child] needs stability
          and support from many people. That stability is
          simply not available in Berwick with Mother and
          [Maternal Grandmother].

          “(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.”

                Mother has had very irregular contact with
          [Child] for two years. She sees him in conjunction
          with [Maternal Grandmother’s] custodial periods.
          She texts [Child] and has regular phone contact, as
          does [Maternal Grandmother]. Relocation will not
          affect Mother’s relationship with [Child] with an
          appropriate schedule.    [Maternal Grandmother’s]


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          relationship is secondary to Father’s rights and
          relationship.

               Presumption in cases concerning primary
               physical custody.

               (a)   Between parents.—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.

               (b)   Between a parent and third
                     party.—In any action regarding the
                     custody of the child between a
                     parent of the child and a
                     nonparent, there shall be a
                     presumption that custody shall be
                     awarded to the parent.        The
                     presumption in favor of the parent
                     may be rebutted by clear and
                     convincing evidence.

               (c)   Between third parties.—In any
                     action regarding the custody of the
                     child between a nonparent and
                     another nonparent, there shall be
                     no    presumption    that  custody
                     should be awarded to a particular
                     party.

          23 Pa.C.S.[A]. § 5327.

                Although it is acknowledged that she may have
          rights of partial custody, we must recognize the
          parent’s rights to raise the child.        Presently,
          [Maternal Grandmother] (and Mother to a lesser
          degree) see [Child] every other weekend, some
          holidays, and four weeks in the summer.          The
          master was inclined to reduce this time. [The trial
          court] agrees. A schedule including most of the
          summer, Christmas vacation, spring break if
          possible, and fact time twice each week and phone


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          calls regularly will maintain consistent and frequent
          contact allowing for continuing the relationship
          [Child] has with [Maternal Grandmother] and
          Mother, which is limited. The distance and cost is of
          some concern. However, [the trial court] would
          envision cost being minimized by meeting halfway
          driving for summer exchanges and the same or a
          plane at Christmas and in the spring. Mother and
          [Maternal Grandmother] can afford to help with costs
          with a part-time job. Father should be able to earn
          more, particularly if he moves.

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

                [Child] is too young to express a reasoned
          preference.

          “(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.”

                 None of the parties exhibit a significant pattern
          of conduct promoting or thwarting the relationship of
          the parties with [Child]. However, Father has been
          relatively cooperative. He has been regular with his
          partial custody and, now, full custody. It does not
          appear that he wants to thwart the relationship of
          [Child]     with    [Mother]      and/or      [Maternal
          Grandmother]. Mother does not appear to want to
          thwart the relationship of [Child] with Father.
          [Maternal Grandmother] has been cool toward Father
          and does not promote [Child’s] relationship with
          Father. However, [Maternal Grandmother] has just
          become less encouraging of the relationship of
          Father with [Child], although this may be because of
          this scheduled hearing and Father’s intent to
          relocate.

          “(6) Whether the relocation will enhance the
          general quality of life for the party seeking the
          relocation, including, but not limited to,



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          financial or emotional benefit or educational
          opportunity.”

                The relocation will indeed enhance Father’s
          quality of life. He will be home with a strong,
          hardworking extended family. He will have at least
          the same job opportunity and likely better
          opportunities. He may be able to transfer within his
          own company to Texas and/or secure a better paying
          job. He will have family to help day-to-day with
          [Child]. It is extraordinarily understandable why he
          desires to move back to his family and his roots.

          “(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.”

                 This is the most important point. Father is
          intending to take this opportunity to move back to
          his [hometown] where he has family support.
          Importantly, that support will be there for [Child]
          also.      The [trial court] saw the [Paternal
          Grandfather] testify. He is a hardworking solid man.
          He has led a hard life providing for himself and his
          family. He has a large house with plenty of room for
          [Child]. The school is nearby. He has nieces and
          nephews of a similar age nearby. Father is clearly
          the parent who can raise [Child] now. The relocation
          clearly enhances Father’s chance for a better life,
          and thus, affords more opportunities for [Child].
          Father has [Child] enrolled in Cub Scouts and a
          YMCA camp in Pennsylvania. Those opportunities or
          similar one[s] will exist in Texas, although within the
          warmth of an extended family.

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

                Father is moving to his hometown to be near
          his family.    He has no family in Pennsylvania,
          besides [Child]. He is not moving to spite Mother or
          [Maternal Grandmother]. That is clear. Mother and
          [Maternal Grandmother] are opposing relocation


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          because they love [Child] and want to see him every
          other weekend during the school year. Once again,
          [the trial court] concurs with the master that
          [Maternal Grandmother’s] custody schedule should
          be reduced in deference to Father[‘s] preferred right
          and obligation to be the nurturing party. Mother has
          not credibly reasserted her rights. She intends to
          see [Child] more frequently in the future or to get
          custody. But her plans are ephemeral and wishful.

          “(9) The present and past abuse committed by
          a party or member of the party’s household and
          whether there is a continued risk of harm to
          the child or an abused party.”

                 This was a murky area in the testimony.
          Mother alleged abuse of her and [M.G.] over five
          years ago. There was no documentary evidence.
          These facts were not a factor prohibiting custody or
          limiting custody at the hearing in September 2013,
          or at the hearing of February 2015.             These
          allegations were not raised before the master either
          time. Mother and [Maternal Grandmother] are still
          not saying that Father’s custody should be limited or
          supervised because of alleged past abuse. These is
          no evidence of a continued risk of harm to [Child].

          “(10) Any other factor           affecting   the   best
          interest of the child.”

                 [The trial court] has heard from the family that
          [Child] would be living with in Texas, i.e., Father and
          [Paternal Grandfather]. The [trial court] does not
          know the people he would be around in Berwick,
          except for [Half-Siblings]. Although there is strong
          consideration given to keeping siblings together, or
          in this case half-siblings, this factor is one of many.
          Moreover, he is now with [Half-Siblings] every other
          weekend, not all the time.         With this relocation
          order, he will be with [Half-Siblings] more in the
          summer and more at Christmas. He will be having
          face time online with them weekly. In addition,
          although [Half-Siblings] are of a similar age, [Child]




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            also has cousins in Texas of a similar age with whom
            he can bond.

Trial court opinion, 8/21/15 at 9-16.

      After a careful review of the certified record, the trial court’s opinion,

the briefs on appeal, and the relevant law, we conclude that the trial court’s

findings are supported by clear and convincing, competent, and sufficient

evidence. As such, we discern no abuse of discretion or error of law in its

reasoning or decision, and find that it was appropriate for the trial court to

determine that Father met his burden of proving that Child’s relocation from

Reading, Pennsylvania, to Sweeny, Texas, would serve Child’s best interest

under 23 Pa.C.S.A. § 5337(h).

      Accordingly, for the reasons state above, we affirm the trial court’s

order,   granting   Father   the   right   to   relocate   Child   from   Reading,

Pennsylvania, to Sweeny, Texas, pursuant to 23 Pa.C.S.A. § 5337(h).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/16/2016




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