J-S13014-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

E.B.,                                          IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellant

                       v.

C.R. AND J.R.,

                            Appellees              No. 1609 WDA 2014


                    Appeal from the Order September 2, 2014
                In the Court of Common Pleas of Bedford County
                   Civil Division at No(s): CP-05-CV-936-2009


BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J.

MEMORANDUM BY BENDER, P.J.E.:                      FILED MARCH 17, 2015

        E.B., maternal grandmother (“Grandmother”), appeals from the order,

dated September 2, 2014, that awarded C.R. (“Mother”) legal and primary

physical custody of her three minor children, L.R. (born in September of

1999), B.R. (born in June of 2001), and G.R. (born in April of 2006)

(collectively the “Children”).1 We vacate and remand.

        In a memorandum opinion filed on November 1, 2012, the trial court

provided an extensive history of this matter that began in August of 2009.

The order that accompanied the November 1, 2012 opinion awarded

Grandmother legal and primary physical custody of the Children with Mother

having partial custody one weekend a month and such other times as agreed
____________________________________________


1
 Although J.R. (Father) is named in the caption, it does not appear that he
has participated in the litigation that resulted in this appeal.
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upon by the parties. That custody arrangement remained in place, until the

order presently on appeal was entered.      On September 13, 2013, Mother

petitioned for a custody modification. Following a number of continuances, a

hearing was held on June 30, 2014, at which time Mother testified about her

present circumstances. No one else testified and, at the conclusion of the

June 30th hearing, the court scheduled another hearing for October 24,

2014, to receive additional testimony. Specifically, the order scheduling the

next hearing also provided that:

      2. In the interim and pending further Order of Court, the Court’s
      Order of November 1, 2012 shall continue in full force and effect.

      3. Effective September 1, 2014, [Mother] shall have primary
      physical custody of the minor children, … provided that she
      obtains a residence with three bedrooms.

Order, 6/30/14.

      In an opinion entered by the court on October 16, 2014, the court

explained its reasons for issuing the June 30, 2014 order, stating:

      The Court[’s] decision was based on the testimony taken on June
      30, 2014, and as a result of the information obtained in the
      Court's previous hearing in this matter[,] which resulted in an
      order being entered on November 1, 2012. That order left
      custody of the children with [Grandmother].               In the
      Memorandum Opinion filed with the [November 1, 2012] order,
      the Court noted [Mother] had a strong bond with her children
      and had achieved a degree of stability in her life. Further, if this
      stability continued it would be appropriate to award her custody.
      At the conclusion of the hearing on June 30, 2014[,] it was clear
      [Mother] had remained stable and had maintained her bond with
      the [C]hildren. [Mother] had maintained regular employment,
      had obtained her Associate's Degree in Accounting, [and]
      continued to reside with the same companion she had in 2012.
      That companion continued to be employed on a full time basis.

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      … Based on this information the Court as noted above entered
      the June 30, 2014 order. At the October 24, 2014 hearing[,] the
      Court expected to receive further testimony from the parties
      prior to entering another opinion and order in the case. The
      Court believed it had authority to enter the interim order
      pursuant to PRCP 1915.3 relating to special relief and those
      cases that hold that custody may be modified without proof of a
      substantial change of circumstances where modification is in the
      child's best interest. McMillen v. McMillen, 602 A.2d 845 (Pa
      1992). Of course, the parties’ due process rights must be
      honored, so the court ordered [an] additional hearing so that
      testimony could be presented. Choplosky v. Choplosky, 584
      A.2d 340 (Pa Super 1990). As of the June 30, 2014 hearing[,]
      there was ample evidence to support the Mother's request for an
      interim modification of custody. Th[e] intention was to transfer
      physical custody and then take further hearing to determine if
      the Defendant/Mother[’s] retaining primary physical custody was
      in the [C]hildren's best interest. The current custody act permits
      relocation if approved by the Court. 23 Pa.C.S.A. § 5337(b)(2).

Trial Court Memorandum Opinion, 10/16/14, at 1-2.

      On August 14, 2014, Grandmother filed a “motion for determination of

finality” with regard to the June 30, 2014 order, and the court granted the

motion by order dated September 2, 2014. In a separate order also entered

on September 2, 2014, the court indicated that Mother had complied with

the June 30, 2014 order and, therefore, she was awarded legal and primary

physical custody of the Children.

      On September 30, 2014, Grandmother filed a timely notice of appeal

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

1925(a)(2)(i). She raises the following issues for our review:

      I. Whether the trial court erred in making a final order of
      custody which transferred primary physical custody of the minor
      children without considering the 16 custody factors outlined in
      23 Pa.C.S.A. § 5328(a) and making such determination prior to
      full hearing on the matter?

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      II. Whether the trial court erred in making a final order allowing
      relocation of the children to another state without consideration
      of the required factors for relocation and making such
      determination prior to full hearing on the matter?

Grandmother’s brief at 4.

      With regard to custody matters, our scope and standard of review are

as follows:

      [O]ur 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.           In
      addition, with regard to issues of credibility and weight of the
      evidence, this Court must defer to the trial judge who presided
      over the proceedings and thus viewed 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.

E.D. v. M.P., 33 A.3d 73, 76 (Pa. Super. 2011) (quoting A.D. v. M.A.B.,

989 A.2d 32, 35-36 (Pa. Super. 2010)). The primary concern in any custody

case is the best interests of the child. The best-interests standard, decided

on a case-by-case basis, considers all factors that legitimately have an effect

upon the child’s physical, intellectual, moral, and spiritual well-being.

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

Arnold, 847 A.2d 674, 677 (Pa. Super. 2004)).

      Grandmother’s first argument centers on the trial court’s failure to

conduct a full hearing and then transferring custody to Mother without


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considering the custody factors set forth in 23 Pa.C.S. § 5328(a). Section

5328(a) provides:

     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.

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

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     (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).     “All of the factors listed in section 5328(a) are

required to be considered by the trial court when entering a custody order.”

J.R.M. v. J.E.A., 33 A.2d 647, 652 (Pa. Super. 2011) (emphasis in original).

Moreover, “[c]ustody hearings should be comprehensive; all witnesses who

can contribute should be heard.” Bednarek v. Velazquez, 830 A.2d 1267,

1270 (Pa. Super. 2003).

     Because the trial court did not expressly consider the section 5328(a)

best interests factors, it committed an error of law.      Likewise, having

recognized that additional testimony would be forthcoming at the hearing

scheduled for October 24, 2014, the court committed an error of law in

granting Grandmother’s finality motion. For these reasons, we must vacate

the order granting custody to Mother and remand for a hearing to allow for a

comprehensive examination of all witnesses involved. Thereafter, the court


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is required to expressly consider all section 5328(a) factors to arrive at its

custody decision. Its opinion should contain a discussion of the sixteen best

interests factors.   Additionally, because this case appears to implicate the

relocation factors set forth at 23 Pa.C.S. § 5337(h), in light of the Children’s

possible move from Pennsylvania to New Jersey, the court must consider

those factors as well. See D.K. v. S.P.K., 102 A.3d 467, 474 (Pa. Super,

2014). Upon completion of the hearing and the court’s decision with

accompanying opinion, either party may file a new appeal, if necessary.

      Order vacated. Case remanded. Jurisdiction relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/17/2015




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