J-A14028-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

D.P.L. IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

V.I.R.

Appellant No. 207 EDA 2017

Appeal from the Order Entered December 21, 2016

In the Court of Common Pleas of Northampton County

Civil Division at No(s): C-48-CV-2016-05812

BEFORE: BENDER, P.J.E., BOWES AND SHOGAN, JJ.

MEMORANDUM BY BOWES, J.: FILED AUGUST 17, 2017

V.I.R. (“Mother”) appeals from the December 21, 2016 custody order 

denying her motion to relocate with her two children, T.B.L. and S.B.L, from 

Bethlehem, Pennsylvania to Smyrna, Delaware. We affirm.

T.B.L and S.B.L were born during June 2003 and March 2005, 

respectively, of Mother’s relationship with D.P.L. (“Father”). Mother and 

Father never married. Between 2003 and 2010, the family resided together 

in New York, New York, and then, in Bushkill, Pennsylvania. Father worked 

full-time in New York City, commuting from Bushkill when necessary. 

Mother occasionally worked part-time. Mostly, she remained home to care 

for the children. 
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Mother and Father’s relationship was tumultuous, and on several 

occasions, Mother left the family home with T.B.L. and S.B.L without notice 

to Father. During 2010, Mother and the girls relocated to Bethlehem, 

approximately one hour south of Bushkill. For the next year, Father 

exercised physical custody every weekend. However, he eventually stopped 

appearing for the custody exchanges and ultimately ceased contact with the 

children for approximately five months. Father blamed his inactivity upon a 

combination of his frustration with Mother’s noncompliance with the custody 

arrangement and his contraction of pneumonia. Nevertheless, the extended 

absence caused T.B.L. and S.B.L to become estranged from Father, a 

impediment which continues to plague their interactions with him. 

During 2012, Father filed a petition for custody, and following courtordered reunification therapy and a period of supervised visitation, Father 

was awarded physical custody on alternating weekends. Mother remained 

the children's primary custodian. Although Father’s relationship with his 

daughters did not improve, the court-ordered custody arrangement 

remained unchanged. 

Mother currently resides in Bethlehem, Pennsylvania. She is a 

production technician for Bimbo Bakeries. During April 2015, Mother 

married K.B., who is on active duty with the United States Air Force. K.B., 

currently serving a four-year enlistment, is stationed in Dover, Delaware. 
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She intends to remain on active duty status for a total of twenty years, when 

her military retirement becomes available. 

Father resides with his wife, M.L., and his five-year old stepdaughter in 

the former family home in Bushkill, Pennsylvania. He continues to commute 

to his employment as a building superintendent at a commercial building in 

Manhattan, a position that he has maintained for twenty years. 

On July 8, 2016, Mother filed a petition for relocation seeking to 

relocate with the children to Smyrna, Delaware, to reside in the home owned 

by K.B. The trip from Bethlehem to Smyrna takes approximately two-and 

one-half hours by automobile. Father responded with a counter-affidavit 

lodging his objection to the proposed relocation pursuant to § 5337(h). 

During the ensuing two-day non-jury trial, Mother testified, inter alia, 

regarding the benefits of the proposed relocation to Smyrna. She does not 

have employment prospects in Delaware. Instead, Mother intends to pursue 

her education while K.B. supports the family financially. She posited that 

the relocation would allow her to spend more time with T.B.L and S.B.L and 

be more involved in their education, social life, and physical activities. She 

testified that the school system is comparable to the school district that the 

children currently attend. Ultimately, Mother desired to move to Delaware 

so that she and the children can be closer to K.B., who presented additional 

testimony about her home, the surrounding community, and her relationship 

with T.B.L and S.B.L. 
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As it relates to Father, Mother proposed that he exercise physical 

custody one weekend per month during the academic year and extended 

periods over the summer vacations. She recommended that the custody 

exchanges occur at an approximate half-way point between Bushkill and 

Smyrna.1

The trial court interviewed T.B.L and S.B.L. separately in chambers. 

Both girls stated their preference to relocate to Delaware and acknowledged 

their extreme animosity toward Father, whom they address by his first 

name. Although the older daughter, T.B.L., was able to identify the source 

of her acrimony, i.e., feelings of abandonment associated with Father’s 

extended absence and annoyance with what she perceives as his attempts to 

tear her from Mother, eleven-year-old S.B.L. has difficulty articulating her 

feelings. She simply stated that she does not feel comfortable around 

Father, who makes her feel like a “random stranger.” N.T., 10/12/16, at 61.

In addition, the trial court considered the opinions and 

recommendations of two court-appointed experts, Ronald J. Esteve, Ph.D. 

and Anthony Cuttitta, a licensed clinical social worker. Both experts 

confirmed the girls’ severe hostility toward Father and recommended, inter 

alia, that Father have frequent, consistent, and extended interactions with 

his daughters in order to improve the anemic father-daughter relationships. 

____________________________________________

1 The most direct route between the communities by automobile is an 

estimated three-and-one-half hour trip.
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While neither expert advocated against relocation, both recognized that the 

additional distance could cause further harm to the strained parent-child 

relationship. Specifically, Dr. Esteve opined that the distance could make it 

difficult to implement his recommendation to increase the frequency and 

duration of Father’s contacts with T.B.L. and S.B.L. N.T., 8/31/16, at 17, 

20, 23-24. Similarly, when asked about the proposed relocation’s impact 

upon the continuing reunification process, Mr. Cuttitta explained, 

In terms of attachment issues, the girls attaching to him 

emotionally and psychologically, I don’t think it would help . . . if 

he saw them, you know, very intermittently or [for a] couple 

weeks in the summer here and there. I think that kind of 

diminishes his significance in their lives, and I think it would 

continue to alienate him from their lives as a significant object. 

So no, I don’t think that would help. 

Id. at 42. 

Following the close of evidence and review of the parties’ legal 

memoranda, the trial court entered the above-referenced order denying 

Mother’s petition to relocate to Delaware. Mother filed a timely notice of 

appeal and complied with the trial court order directing her to file a concise 

statement of errors complained of appeal pursuant to Pa.R.A.P. 1925(b). 

She raises one question for our review: “Did the Court err in not granting 

Mother’s [p]etition for [r]elocation?” Mother’s brief at 23. 

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

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

court’s factual findings that are supported by the record and its credibility 
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determinations. Id. This Court will accept the trial court’s conclusion unless 

it is tantamount to legal error or unreasonable in light of the factual findings. 

Id. 

In relation to relocation, the Child Custody Law provides: 

(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.

(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. § 5337(h).

In denying Mother’s petition to relocate the children from Bethlehem, 

Pennsylvania, to Smyrna, Delaware, the trial court considered the ten 

relocation factors enumerated in § 5337(h). Specifically, the court found 

that §§ 5337(h)(1), (2), (3), and (5) favored Father to varying degrees and 

that, while §§ (h)(4), (6), and (7) militated in favor of Mother, those 

considerations were insufficient to warrant relocation. As part of its 

consideration of § h(10), the catchall factor, the trial court reviewed the best 

interest factors outlined in § 5328(a)2, particularly §§ (a)(11) and (13), 

____________________________________________

2 § 5328. Factors to consider when awarding custody.

(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 

(Footnote Continued Next Page)
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(Footnote Continued) _______________________

which party can better provide adequate physical safeguards 

and supervision of the child.

(2.1) The information set forth in section 5329.1(a)(1) and (2) 

(relating to consideration of child abuse and involvement with 

protective services).

(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.

(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 

(Footnote Continued Next Page)
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relating respectively to the proximity of the residences and the levels of 

conflict and cooperation between the parties. The remaining relocation 

factors were either neutral or inapplicable. 

The crux of Mother’s argument is that the trial court erred in 

considering the statutory relocation factors through the lens of T.B.L.’s and 

S.B.L.’s acrimony for Father and the impact of the proposed relocation upon 

the ongoing efforts to rehabilitate those relationships.3 Mother essentially 

asserts that the trial court was required to examine the relevant statutory 

factors free of any hue cast by the critical need to repair the vitriolic fatherdaughter relationships. She specifically identifies the trial court’s 

(Footnote Continued) _______________________

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). 

3

 To the extent Mother asserts that the trial court’s concern for the fatherdaughter relationships was not warranted because Father created the 

situation by abandoning T.B.L and S.B.L. for five months during 2011, the 

certified record belies the factual assertion that Father was solely responsible 

for the absence. Specifically, the trial court found that Father had explained 

the hiatus as being triggered by a severe illness and his frustration with 

Mother’s noncompliance with the custody order. See Trial Court Order and 

Opinion, 12/19/16, at 7. As the record sustains this factual finding, we will 

not disturb it. See N.T., 10/12/16, at 84-85. 
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considerations of factors one, two, four, six, seven and eight as evidence of 

the court’s preoccupation with the effect that the relocation would have upon 

the parent-child relationships. Essentially, she complains that the trial court 

assessed greater weight to factor three regarding the preservation of the 

girls’ relationships with Father, than all of the remaining considerations 

combined. In sum, she asserts that the court predetermined that the 

proposed relocation would impact the parent-child relationship adversely and 

concluded that this reality “wipes out all other considerations and outweighs 

each individual factor.” Mother’s brief at 28. We disagree. 

Mother’s arguments fail for several reasons. First, the underpinnings 

of her assertions regarding the court’s consideration of specific factors are 

faulty. Mother’s objections to the court’s analysis under factor one fails 

because, contrary to her protestations, the status of the father-daughter 

relationships is particularly salient to the court’s consideration of “The 

nature, quality, extent of involvement and duration of the child[ren]’s 

relationship with . . . the nonrelocating party.” 23 Pa.C.S. § 5337(h)(1). 

Likewise, the extreme animosity and parental alienation that is present in 

this case is significant to the court’s proper contemplation of “the likely 

impact the relocation will have on the child's physical, educational and 

emotional development.” Id. at § 5337(h)(2). Similarly, the trial court could 

not effectually weigh the stated preferences of T.B.L and S.B.L. in favor of 

relocation pursuant to § 5337(h)(4) without also accounting for their disdain 
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for Father, ambivalence toward his hardship, and the aggravating effects 

that the proposed relocation would have upon the already-strained rapport. 

As the foregoing statutory factors implicate T.B.L.’s and S.B.L.’s 

relationships with Father, we reject Mother’s contention that the court erred 

in examining those considerations through the lens of Father’s ongoing 

efforts to rectify the turbulent dynamic among him and his daughters. 

In relation to the sixth and seventh factors, which Mother complains 

were improperly weighed, the trial court found that both components 

militated in favor of relocation but that they were insufficient to overcome 

the harmful effect that the relocation would have on the children’s 

relationship with Father. It is beyond argument that the mandate to assess 

the statutory factors and to balance those collective assessments rests with 

the trial court as the ultimate arbiter of fact. As we explained in M.J.M. v. 

M.L.G., 63 A.3d 331, 339 (Pa.Super. 2013), “it is within the trial court's 

purview as the finder of fact to determine which factors are most salient and 

critical in each particular case.”

Mother’s contention that the trial court misapplied the eighth factor, 

relating motives, fares no better. The assertion is simply incorrect. The trial 

court found that the motives of both parties were sincere and did not weigh 

the factor in favor of Father. Instead, the court recognized that Mother’s 

decision to relocate three-and-one-half hours away from Father’s home 

placed her desire to be with K.B. above Father’s interest in realizing a 
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constructive relationship with his daughters. As this is an accurate 

observation of the circumstances, Mother’s attempts to assail it as an 

improper consideration fails. 

Moreover, the oversight that Mother requests this Court to exercise 

over the trial court’s consideration of the statutory factors is contrary to our 

jurisprudence. A party cannot dictate the weight that the trial court 

attributed to the evidence or its consideration of any single factor. A.V. v. 

S.T., 87 A.3d 818, 820 (Pa.Super. 2014) (citation omitted) (“Rather, the 

paramount concern of the trial court is the best interest of the child.”). 

Recall that it is the fact-finder’s purview to decide which of the enumerated 

factors are the most salient to the facts of a particular case. M.J.M., supra, 

at 339. Furthermore, consistent with our standard of review, we will not 

interfere with the trial court’s consideration of the children’s best interest 

absent an abuse of discretion. Id. Stated plainly, “The test is whether the 

evidence of record supports the trial court’s conclusions.” Id. quoting 

Ketterer v. Seifert, 2006 PA Super 144, 902 A.2d 533, 539 (Pa.Super. 

2006). Thus, insofar as Mother’s argument challenges the trial court’s 

determinations regarding the weight and saliency of the various statutory 

factors, no relief is due.

Finally, to the extent that Mother complains that certain aspects of the 

trial court’s consideration of the father-daughter relationships were contrary 

to the evidence, this argument also fails. During the evidentiary hearing, 
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the trial court considered the expert opinions of two court-appointed 

evaluators, Dr. Esteve and Mr. Cuttitta. In addition to acknowledging the 

children’s extreme animosity toward Father, Dr. Esteve found a lack of 

ambivalence that suggests long-term parental alienation. N.T., 8/31/16, at 

17. He noted that, while both girls demonstrated dramatic behavior, their 

animosity toward Father can be improved with intensive counseling so long 

as the parties support the process. Id. at 21. Dr. Esteve endorsed Father 

engaging in interactions with the girls more frequently and for longer 

durations. Specifically, he recommended frequent counseling sessions with 

each daughter separately, an improved level of communications among the 

family, and less interference by Mother. Id. at 17. 

While Dr. Esteve declined to proffer a specific opinion as to relocation 

per se, he stated unequivocally that he would discourage the relocation to 

the extent that it impinged upon his recommendations for increased 

interaction. Id. at 20. He expounded, “So if the relocation still permits all 

of those recommendations that I just described to occur . . . then maybe 

there can be an argument for [it]. However, if [relocation] further makes it 

difficult to do all of what I just described, then of course I would discourage 

it.” Id. at 20. 

Mr. Cuttitta’s testimony paralleled Dr. Esteve’s assessment, however, 

Mr. Cuttitta’s references related to his interactions with T.B.L. and S.B.L. 
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during the 2014 reunification therapy.4 Importantly, Mr. Cuttitta identified 

in the children significant reluctance to associate with Father and a 

resistance to any reunification efforts. Id. at 39. He noted substantial 

hostility on the girls’ part and an unwillingness to allow themselves to accept 

Father’s attempts to re-engage. Id. at 39-40. 

Mr. Cuttitta opined that Father needs to maintain consistent 

interactions with T.B.L. and S.B.L. over extended periods in order to repair 

the damaged relationships. Id. at 41. He recommended weekly, or at least 

bi-weekly, overnight visitation. Id. As noted, supra, Mr. Cuttitta would not 

support any proposed relocation scheme that impeded Father’s ability to 

interact with his daughters regularly. He summarized his opinion with the 

following query, “[H]ow do you attach with your daughters if you’re 

spending most of your time traveling back and forth? It’s ridiculous.” Id. at 

43. 

In light of the court-appointed experts’ shared perspective of the 

parent-child relationships and the joint recommendation that Father 

maintain more frequent contact with T.B.L. and S.B.L. in order to repair the 

damaged relationships, we find no basis to conclude that the trial court erred 

____________________________________________

4 Although Mother does not assert that Mr. Cuttitta’s testimony is stale 

considering the fact that he discontinued his contact with the family during 

2014 or 2015, we observe that his expert assessment is founded upon the 

girls’ static disdain for Father which has continued to plague Father’s 

reunification efforts since the family last utilized therapy. 
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in highlighting the girls’ enmity in its consideration of the relocation factors 

pursuant to § 5337(h). 

Having found that the certified record sustains the trial court's decision 

to deny Mother’s petition to relocate T.B.L. and S.B.L from Bethlehem, 

Pennsylvania, to Smyrna, Delaware, we affirm it.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/17/2017