J-S51037-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

M.Y.

Appellant

v.

H.Y.

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 911 MDA 2020

Appeal from the Order Entered June 12, 2020

In the Court of Common Pleas of Dauphin County Civil Division at No(s): 

2017-CV-8550-CU

BEFORE: MURRAY, J., McLAUGHLIN, J., and McCAFFERY, J.

MEMORANDUM BY McCAFFERY, J.: FILED JANUARY 28, 2021

M.Y. (Father) appeals from the order entered in the Dauphin County 

Court of Common Pleas, granting him and H.Y. (Mother) shared legal custody 

of their children, L.Y. (born in December 2007), R.Y. (born in April 2009), and 

P.Y. (born in January 2012) (collectively, the Children), and Mother primary 

physical custody, pursuant to her notice of proposed relocation to Wantagh, 

Nassau County, New York and petition for modification. After review, we 

affirm the trial court’s order.

The parties married in September 2009, and Father filed for divorce in 

August 2017. On December 12, 2017, Father initiated the within matter and 

filed a complaint for shared child custody, along with a petition for emergency 

custody relief. On February 21, 2018, the parties settled on a 2-2-5-5 shared 

physical custody schedule, with Mother having custody Mondays and 

Tuesdays, Father having custody Wednesdays and Thursdays, and the parties 

alternating weekends. See N.T., 6/8/20, at 9, 78; Order of Court – Parenting 
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Plan, 2/21/18, at 2 (unpaginated). At the time of the underlying June 8, 2020, 

custody hearing, the parties’ divorce was not finalized. N.T., 6/8/20, at 5, 78. 

The trial court summarized the relevant procedural and factual history 

as follows:

On February 26, 2020, [Mother] filed a Notice of Relocation 

along with a Petition for Modification of the February 21, 2018, 

Parenting Plan, as supplemented by orders dated April 18, 2019, 

May 10, 2019, and September 11, 2019. [Mother sought primary 

physical custody of the children, and sought to relocate with them

to Wantagh, New York.]

* * *

Father and Mother separated in August 2017. Mother stayed 

in the former marital home, and Father [vacated the home in 

November 2017.1] Mother hoped to keep the family home 

through equitable distribution as part of the divorce, but due to 

Father’s failure to pay the mortgage and his support obligations in 

a timely manner the home was placed in foreclosure and was 

scheduled to be sold at a Sheriff’s sale in July 2020. Mother then 

sought to relocate to Wantagh, New York, where Father and 

Mother are both originally from,[2]feeling it would benefit the 

[C]hildren and Mother emotionally and financially. Mother 

proposes to purchase a home with her paramour, [T.C.], who is a 

New York City firefighter. Since separation, Father and Mother 

have shared physical custody of the [C]hildren pursuant to a 2-2-

5-5 schedule[.] The [C]hildren settled into the custody schedule, 

which satisfactorily met their needs. In March 2020, Father was 

____________________________________________

1 See Father’s Complaint for Shared Child Custody, 12/12/17, at ¶ 6.

2 Father grew up on Long Island, New York near Wantagh. N.T., 6/8/20, at 

24. Mother testified she moved to Long Island after high school and lived 

there for eight years. Id. at 24.
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arrested during his parenting time[3] prompting Mother to file an 

Emergency Petition for Special Relief which the [c]ourt denied.

Opinion in Support of Order Pursuant to Rule 1925(a), 8/17/20, at 1-2 

(1925(a) Op.).4

The trial court conducted a hearing on June 8, 2020. Mother and Father, 

represented by counsel, each testified on their own behalf. In addition, Mother 

presented the testimony of her boyfriend, T.C., and her father, H.H. — the 

Children’s maternal grandfather. Father presented the testimony of his 

mother, P.Y. — the Children’s paternal grandmother.

5

 The court further spoke 

with the oldest child, L.Y., in camera, on June 11, 2020.6

Thereafter, by order dated and entered June 12, 2020, the trial court 

awarded the parties shared legal custody, and Mother primary physical 

____________________________________________

3 Father was arrested on an outstanding bench warrant related to a business 

deal and/or contract in Virginia. N.T., 6/8/20, at 104-09; see also

Defendant’s Exhibit 14.

4 We note the trial court issued two opinions. First, it filed a 14-page 

Memorandum Opinion on June 12, 2020, on the same day as the underlying 

order. We cite to this opinion, infra, as “Memo. Op.” The court also filed, on 

August 17, 2020, a 4-page Opinion in Support of Order Pursuant to Rule 

1925(a), which incorporates the June 12th memorandum opinion.

5 The proceeding was conducted via video conference due to the COVID-19 

pandemic. N.T., 6/8/20, at 1.

6 We observe that no transcript of L.Y.’s interview was included as part of the 

certified record. Nonetheless, there does not appear to be any dispute that 

L.Y. indicated her desire to retain the status quo.
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custody commencing August 17, 2020, pursuant to her notice of proposed 

relocation to Wantagh, New York and petition for modification. The court 

granted Father partial physical custody during the school year: two weekends 

each month,7 and winter and spring recess. During the summer, the court 

further granted Father partial physical custody from seven days after the last 

day of the school year until fourteen days prior to the start of the next school

year. The court additionally provided for, inter alia, a holiday schedule; a 

custodial exchange location, if unable to be agreed upon; reasonable 

telephone, video, and/or email contact; and individual counseling for the 

Children, as needed. As stated above, the court issued a contemporaneous 

Memorandum Opinion, which addressed both the statutory relocation and 

custody factors.

On July 2, 2020, Father filed a timely, counseled notice of appeal, along 

with a concise statement of errors complained of on appeal pursuant to 

Pa.R.A.P. 1925(a)(2)(i) and (b).

Father raises the following issue for our review:

Whether the Trial Court erred as a matter of law and abused its 

discretion by approving Mother’s relocation and failing to properly 

apply the necessary factors in determining if the proposed 

relocation is in the best interests of the subject minor children.

____________________________________________

7 The court provided, “Father’s weekend custodial periods during the school 

year shall include all three-day or extended weekend breaks, which will then 

count toward Father’s monthly weekend custodial periods.” Custody Order –

Parenting Plan, 6/12/20, at ¶13.
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Father’s Brief at 4.

We note the relevant standard of review:

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.

C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).

This Court consistently has held:

[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). 

In addition,

[a]lthough we are given a broad power of review, we are 

constrained by an abuse of discretion standard when evaluating 

the court’s order. An abuse of discretion is not merely an error of 

judgment, but if the court’s judgment is manifestly unreasonable 

as shown by the evidence of record, discretion is abused. An 

abuse of discretion is also made out where it appears from a 

review of the record that there is no evidence to support the 

court’s findings or that there is a capricious disbelief of evidence.

M.A.T. v. G.S.T., 989 A.2d 11, 18-19 (Pa. Super. 2010) (en banc) (citations 
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omitted).

The paramount concern in any custody case under the Child Custody

Act8is the best interests of the child. See 23 Pa.C.S. §§ 5328 (“In ordering 

any form of custody, the court shall determine the best interest of the child 

by considering all relevant factors . . . .”), 5338 (“Upon petition, a court may 

modify a custody order to serve the best interest of the child.”).

Section 5323 of the Act provides for the following types of awards:

(a) Types of award.—After considering the factors set forth 

in section 5328 (relating to factors to consider when awarding 

custody), the court may award any of the following types of 

custody if it is in the best interest of the child:

(1) Shared physical custody.

(2) Primary physical custody.

(3) Partial physical custody.

(4) Sole physical custody.

(5) Supervised physical custody.

(6) Shared legal custody.

(7) Sole legal custody.

23 Pa.C.S. § 5323(a)(1)-(7).

Section 5328(a) sets forth the best interest factors that the trial court 

must consider in awarding custody:

§ 5328. Factors to consider when awarding custody

____________________________________________

8 23 Pa.C.S. §§ 5321-5340.
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(a) Factors.—In ordering any form of custody, the court 

shall determine the best interest of the child by considering all 

relevant factors, giving weighted consideration to those factors 

which affect the safety of the child, including the following:

(1) Which party is more likely to encourage and permit 

frequent and continuing contact between the child and 

another party. 

(2) The present and past abuse committed by a party or 

member of the party’s household, whether there is a 

continued risk of harm to the child or an abused party and 

which party can better provide adequate physical safeguards 

and supervision of the child. 

(2.1) The information set forth in section 5329.1(a)(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.
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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)(1)-(16).

Furthermore, where a parent requests relocation of a child, the trial 

court must consider the following ten relocation factors set forth in Section 

5337(h) of the Act:

(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)(1)-(10).

Further, with regard to the custody and relocation factors, we have 

stated as follows:

“All of the factors listed in [S]ection 5328(a) are required to be 

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

Section 5337(h) requires courts to consider all relocation factors. 

The record must be clear on appeal that the trial court considered 

all the factors. The record must be clear on appeal that the trial 

court considered all the factors.
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Section 5323(d) provides that a trial court “shall delineate the 

reasons for its decision on the record in open court or in a written 

opinion or order.” 23 Pa.C.S.[ ] § 5323(d). Additionally, 

“[S]ection 5323(d) requires the trial court to set forth its 

mandatory assessment of the sixteen [Section 5328(a) custody] 

factors prior to the deadline by which a litigant must file a notice 

of appeal.” . . .

In expressing the reasons for its decision, “there is no 

required amount of detail for the trial court’s explanation; all that 

is required is that the enumerated factors are considered and that 

the custody decision is based on those considerations.” A court’s 

explanation of reasons for its decision, which adequately 

addresses the relevant factors, complies with Section 5323(d).

A.V. v. S.T., 87 A.3d 818, 822-23 (Pa. Super. 2014) (some citations omitted).

In its opinion accompanying the underlying order, the trial court 

addressed the custody factors pursuant to Section 5328(a) and relocation 

factors pursuant to Section 5337(h). The court stated as follows: 

Relocation Factors

Relocation Factor 1: The nature, quality, extent of 

involvement and duration of the children’s relationships 

with the party proposing to relocate and with the 

nonrelocating party, siblings and other significant persons 

in the children’s lives.

Both parents currently live in the Hummelstown area and 

share physical custody of [the Children], since the entry of the 

February 21, 2018, custody order. The [C]hildren have an 

attachment to Mother, Father, and the Hummelstown community. 

Mother and Father live within the same school district, which 

allows both parents to remain actively involved in the [C]hildren’s 

lives and for [the Children] to remain actively involved in the life 

of their community.

The [C]hildren have an equal relationship with both parents 

in terms of the parent’s extent of involvement and duration. The 

nature and quality of each parent’s relationship with [the Children]

does not favor one parent over the other. The [C]hildren also 
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have significant relationships from their school and sports teams 

that would be terminated by the proposed relocation.

Relocation Factor 2: The age, developmental stage, and 

needs of the children and the likely impact the relocation 

will have on the children’s physical, educational and 

emotional development, taking into consideration any 

special needs of the children.

[L.Y.] (12), [R.Y.] (11), and [P.Y.] (8) are relatively young in 

age, with the older two in the early stages of middle school. Their 

physical development is well taken care of in the [C]hildren’s 

current location, with [L.Y.] and [R.Y.] active in sports. The court 

anticipates that similar physical opportunities are available in New 

York. The court further believes that availability of extended 

family on both sides in the Wantagh area, notably those of the 

same age, would emotionally assist the [C]hildren with the 

transition.

Educationally, [the Children] have done well. [L.Y.] was on 

the honor roll for academics and [R.Y.] and [P.Y.] regularly receive 

outstanding as their scores. This might ordinarily argue for 

maintaining the status quo educationally. However, the court 

finds that the Massapequa School District[9]in New York is wellrated and is similar if not better than South Hanover Elementary 

and Lower Dauphin Middle School. Given [the Children’s]

scholastic achievement and young ages, it is likely they will 

continue to be successful in a new school setting.

Relocation Factor 3: The feasibility of preserving the 

relationship between the nonrelocating party and the 

children through suitable custody arrangements, 

considering the logistics and financial circumstances of the 

parties.

The proposed relocation, depending on exactly where Mother 

would purchase a home, would create a separation of 

approximately three hours and fifteen minutes from Father’s 

____________________________________________

9 While the court references the Massapequa School District throughout its 

Memorandum Opinion and Custody Order, we observe that Mother presented

evidence with regard to the Wantagh Union Free School District. See Mother’s

Exhibits 10 through 13; see also N.T., 6/8/20, at 35-36.
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current residence. This does create a significant inconvenience 

and would necessitate a change from the current custody 

schedule. The parents do have the financial and scheduling ability 

to confront the challenge that distance creates, although the court 

recognizes the cost of transportation is not insignificant. Mother 

has suggested a custody schedule that would permit Father to 

have much time during school breaks and the summer, which 

would enable Father to preserve his relationship with the 

[C]hildren.

Relocation Factor 4: The children’s preference, taking into 

consideration the age and maturity of the children.

The court interviewed [L.Y.] on June 11, 2020. [L.Y.] appears 

to be a bright and confident 12-year-old who was able to express 

her views. [L.Y.] states that she enjoys spending time with both 

parents and is comfortable in both homes. Her preference is for 

the status quo and to remain in the Hummelstown area.

Due to their ages, [R.Y.] and [P.Y.] were not interviewed.

Relocation Factor 5: Whether there is an established 

pattern of conduct of either party to promote or thwart the 

relationship of the children and the other party.

Mother does not appear to thwart [the Children’s] relationship 

with Father. While Mother’s proposed relocation would 

necessitate a change in the custody schedule, the move does not 

appear to be motivated by an attempt to thwart Father’s 

relationship with the [C]hildren. As noted above, Mother’s 

proposed custody schedule would ameliorate the impact of the 

relocation on Father’s time with the [C]hildren.

Father does not directly thwart [the Children’s] relationship 

with Mother. The court does have some concerns that Father’s 

lack of co-parenting cooperation is a passive-aggressive way to 

impact Mother’s relationship with the [C]hildren.

Relocation Factor 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.
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Mother’s home is currently in foreclosure and will be sold 

through a sheriff’s sale in July [2020]. The court is well-aware 

that the deed to the home and the mortgage is in Father’s name 

alone. Father has not cooperated with changing the deed and 

mortgage into Mother’s name. At the same time, Father has also 

withheld child support payments. As a result, the blame for 

Mothers soon to occur eviction falls squarely on Father. Mother 

works and intends to return to school to pursue a bachelors’

degree in nursing. The court agrees with Mother that moving to 

Wantagh would benefit her in terms of housing, finances, and 

childcare. Mother intends to purchase a home with her fiancé[,10]

who is a New York City firefighter. She has taken her nursing 

exam (NCLEX) and given the job market for nurses, should quickly 

find employment in any location. With the availability of her 

parents and other family members in the Wantagh area, she 

would also find family to provide childcare while she worked or 

attended school. The court would expect Mother’s quality of life 

to be enhanced in all areas.

Relocation Factor 7: Whether the relocation will enhance 

the general quality of life for the children, including, but 

not limited to, financial or emotional benefit or educational 

opportunity.

Mother presented testimony and evidence as to the similar or 

greater educational opportunity that a move to the Massapequa 

School District would afford. As noted above, the court is 

convinced this move would provide for [the Children’s]

educational success.

[The Children] have visited family over the last few years in 

Wantagh area, as well as their maternal grandfather who lives 

near Wantagh. Both Mother and her fiancé have relatives with 

children in the same age range. These peer relationships will also 

assist them in the transition to a new home and school.

It is also clear that the move would improve the immediate 

financial prospects for the [C]hildren. As noted above, Mother will 

____________________________________________

10 Mother testified that she and her boyfriend, T.C., saw marriage in the future 

but noted that “other things need to happen first.” N.T., 6/8/20, at 32. She, 

however, did not refer to an engagement nor to T.C. as her fiancé.
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soon be forced out of the home where she resides. Father has not 

been reliable in his financial support.

Relocation Factor 8: The reasons and motivation of each 

party for seeking or opposing the relocation.

Mother understandably seeks to relocate to live together with 

[T.C.], her fiancé. Mother also requests to relocate with the 

[C]hildren in order to increase her network of support while she is 

working full-time and in school. The court believes the move 

would in fact accomplish this goal.

Father opposes the move in order to maintain his custodial 

periods and his relationship with the [C]hildren. The court also 

believes that Father’s attitude is that it is Mother’s choice to move 

and that the consequences of that choice should accrue to her.

Relocation Factor 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 children or an 

abused party.

The court does not find any evidence of past or present abuse 

committed by Mother or anyone in her household. 

There is an allegation of an incident where Father pushed 

Mother down the stairs and put his hands around Mother’s neck 

while he was on top of her. However, no charges were pressed at 

that time and the court found no reported incidents prior or since 

this alleged time. The court is concerned with the allegation as 

the safety of the children is the primary concern and this factor 

carries great weight when making decisions regarding custody.

Relocation Factor 10: Any other factor affecting the best 

interest of the children.

There are no other relevant factors.

* * *
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Custody Factors

Having addressed the relocation factors, the court now turns 

its attention to the 16 custody factors enumerated in 23 Pa.C.S. § 

5328.

Factor 1: Which party is more likely to encourage and 

permit frequent and continuing contact between the 

children and another party.

Mother and Father currently have shared custody. There is 

no report of either parent preventing the children from 

communicating with the other. A relocation will impair Father’s 

time with the [C]hildren, but Mother is willing to concede 

substantial summer and holiday time to help ameliorate the 

impact on Father’s custodial time.

Factor 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 children or an abused party 

and which party can better provide adequate physical 

safeguards and supervision of the children.

The court does not find any evidence of past or present abuse 

committed by Mother, or anyone in her household.

There is an incident where Father is alleged to have pushed 

Mother down the stairs and put his hands around Mother’s neck in 

a [choking] motion. Mother testified that one of the [C]hildren 

was present and begged Father to get off of Mother. Father 

testified that Mother fell down the stairs while intoxicated[. The 

trial court further noted: “This testimony is not consistent with 

Father’s testimony in the divorce proceedings, . . . where Father 

denied knowing the cause of Mother’s bruising.” N.T., 11/7/19, 

at 185-87.] No criminal charges were lodged, Mother was never 

successful in obtaining any protection from abuse orders, and this 

event does predate more recent custody orders. However, the 

court has concerns given that this factor impacts the safety of the 

[C]hildren. The court has no evidence that Father was directly 

abusive to the [C]hildren.

Factor 3: The parental duties performed by each party on 

behalf of the children.
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Mother has performed parental duties for [the Children] when 

they are in her home. This includes providing the basic necessities 

such as shelter, clothes, and nutrition, as well as those duties that 

enrich a child’s life, such as educational work and taking [the 

Children to] activities in the community. Mother has principally 

made medical and dental appointments for the [C]hildren.

Father has likewise performed parental duties for [the 

Children] when they are in his home. Father appropriately 

provides shelter, meals, and care. In addition, Father coached 

[R.Y.’s] Lacrosse team, does art with [P.Y.], and watches movies 

with [L.Y.] Father also takes the [C]hildren hiking and camping.

Factor 4: The need for stability and continuity in the 

children’s education, family life and community life.

During the separation and divorce proceedings [the 

Children] have continued at South Hanover Elementary School 

and Lower Dauphin Middle School when in Mother’s home and 

Father’s home. This has created good stability for the [C]hildren 

during this time of change. In the next school year [R.Y.] will be 

moving to middle school. [L.Y.] and [R.Y.] are active in sports 

and age-appropriate community activities.

Relocating to Wantagh, New York, would disrupt this 

continuity. The strongest argument against relocation and a 

change in the custodial schedule is that the [C]hildren are doing 

well in school and developing in their community activities. 

However, it is not possible for things to remain the same as the 

home where Mother lives is in foreclosure. While it may be 

possible to relocate closer to her current location, the family will 

still face changes.

The court also heard testimony that Father is currently 

facing a felony criminal charge in Virginia that apparently arose 

out of a business transaction. Father is presumed innocent, but 

this charge must be resolved and until it is, the potential for any 

incarceration poses a risk to the stability that Father can provide 

for the [C]hildren.

The court further notes that family from both Mother and 

Father’s side is available in New York, educational and community 

opportunities are available there, and the court believes these 
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children are resilient. Consequently, the court believes that the 

[C]hildren will not suffer from a loss of stability or continuity.

Factor 5: The availability of extended family.

Mother has no extended family in Harrisburg but has several 

family members around the Wantagh area, including her father 

and stepmother, a sister and a stepbrother. Mother’s fiancé, 

[T.C.], also has relatives close to Wantagh who have a relationship 

with Mother and the [C]hildren, which notably includes nieces in 

the same age range of the [C]hildren.

Father’s parents live in the Hummelstown area and provide 

frequent childcare for the [C]hildren during Father’s custodial 

periods. It is believed that the [C]hildren have a close relationship 

with the paternal grandparents. Father also has a sister here, 

although the sister has limitations that likely prevent the 

development of a close relationship with the [C]hildren. It was 

noted that Father has two aunts and a grandmother in the general 

area of Wantagh, New York, along with cousins that the family 

visits at least once or twice a year. The [C]hildren should have 

some familiarity with these extended family members and may 

facilitate Father’s custodial periods should he choose to exercise 

them in New York.

Factor 6: The children’s sibling relationships.

[The Children] are the only children through Mother. These 

children have always been together, and the court would not 

entertain separating them.

Father has no other children aside from [the Children]. 

Father’s paramour, [N.M.], has three children that are in the same 

age range as [the Children], and they join together for activities. 

If this relationship continues, the court believes that the 

relationship between the [C]hildren could also continue during 

Father’s custodial periods.

Factor 7: The well-reasoned preference of the children, 

based on the children’s maturity and judgment.

As noted above, the court interviewed [L.Y.] on June 11, 

2020. The court found [L.Y.] mature enough to state a reasoned 

preference. Her stated preference is for the status quo and 
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remaining in the Hummelstown area. [L.Y.] appears comfortable 

with both parents and enjoys spending time with both. When the 

court inquired about each parent’s paramour, [L.Y.] indicated that 

she gets along with both [N.M.] and [T.C.]. However, the court 

noted more affinity when [L.Y.] discussed her relationship with 

[T.C.]

Due to their ages, [R.Y.] and [P.Y.] were not interviewed.

Factor 8: The attempts of a parent to turn the children 

against the other parent, except in cases of domestic 

violence where reasonable safety measures are necessary 

to protect the children from harm.

The court does not find any incidents of Mother turning the 

[C]hildren against Father. There was testimony that Mother may 

have prematurely told the [C]hildren about the proposed 

relocation and suggested to them that Father might move as well. 

Mother disputes this.

Similarly, the court does not find any incidents of Father 

actively turning the children against Mother. There was testimony 

that Father used the [C]hildren to convey certain messages about 

custody that Father denies. As noted above, the court is 

concerned that Father’s lack of co-parenting cooperation at times 

can have the result of turning the [C]hildren against one or both 

of the parents.

Factor 9: Which party is more likely to maintain a loving, 

stable, consistent and nurturing relationship with the 

children adequate for the children’s emotional needs.

Both parents present an open and loving relationship with 

[the Children] as evidenced by reporting activities they do 

together as a group and individually. Both parents deny having 

conversations with the kids which would be considered adult 

issues.

Mother reports wanting to do what she can to maintain the 

life [the Children] are accustomed to and hopes to do this by 

furthering her career. Mother also reports being heavily involved 

in school activities and would like to return to doing this once she 

has more support.
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Father reports his preferred parenting style to be structured 

and predicable. Father reports loving to spend time with [the 

Children,] educating them and spending time outdoors.

Factor 10: Which party is more likely to attend to the daily 

physical, emotional, developmental, educational and 

special needs of the children.

Mother reports, and Father corroborates, she primarily 

schedules all medical appointments. Mother and Father both see 

to the physical, emotional, developmental, and educational needs; 

including attending parent/teacher conferences and teaching 

[P.Y.] to ride a bike.

The court recognizes that a relocation would severely hinder 

Father’s ability to attend school and sports activities, let alone 

volunteer as a coach which he has done.

Factor 11: The proximity of the residences of the parties.

Presently, Father and Mother live within the same school 

district. Upon relocating to Wantagh, Mother and Father would be 

a little over three hours apart. While this could impact the court’s 

decision other factors outweigh the distance and a parenting plan 

can be put in place which supports continued relationships with 

both parents.

Factor 12: Each party’s availability to care for the children 

or ability to make appropriate child-care arrangements.

Mother is working full-time and intends to return to school to 

further her nursing education. Mother reported a problem with 

childcare during last summer and reported [T.C.] came forward to 

support Mother in providing care for the children. Mother has not 

reported any other issues with childcare. A move to Wantagh 

would give Mother further support in meeting childcare needs 

through family.

Father works full-time but has a flexible schedule. When [the 

Children] are in his home, Father is able to schedule his workday 

so that he is often at home for several hours. At other time[s] he 

utilizes paternal grandmother to watch [the Children] when he 

needs to leave for meetings in the community.
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Factor 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 the children from abuse 

by another party is not evidence of unwillingness or 

inability to cooperate with that party.

There appears to be continued conflict between Mother and 

Father pursuant to the separation and pending divorce. This is 

seen in the parents’ communication problems, accusations of 

using [the Children] to convey messages, allegations of 

alcoholism, and Father’s lack of candor and timely notice about 

the pending foreclosure.

Mother denies using [the Children] to discuss adult issues or 

to convey information to Father. Mother reports using a coparenting application and text messages to communicate with 

Father. Mother testified that Father does not respond 

consistently.

Father also denies sharing adult issues with [the Children].

Father acknowledged he does not use the co-parenting application 

and only responds to text messages that he deems relevant to the 

[C]hildren’s needs. Limiting the communication between Father 

and Mother in this way may eliminate some potential conflict, 

however, it prevents the opportunity to co-parent in a way that is 

in the best interest of the [C]hildren.

Factor 14: The history of drug or alcohol abuse of a party 

or member of a party’s household.

Father’s testimony suggested that Mother has an issue with 

alcohol. This accusation has been voiced at other times in the 

history of this case. However, there is no evidence to substantiate 

this allegation.

There is no evidence of drug or alcohol abuse by Father.

Factor 15: The mental and physical condition of a party or 

member of a party’s household.

There is no evidence that either Mother or Father has a 

mental or physical condition, therefore, this factor does not impact 

the court’s decision.
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Factor 16: Any other relevant factor.

There are no other relevant factors.

Memo. Op., 6/12/20, at 2-14.

On appeal, Father challenges the trial court’s determinations as to the 

Section 5337(h) relocation factors and award of custody. Father asserts the

court erred as a matter of law and abused its discretion in approving Mother’s 

relocation, by failing to properly apply the required factors in determining if 

the proposed relocation is in the best interests of the Children. Father’s Brief 

at 8. Specifically, Father challenges the court’s analysis as to relocation 

factors 1, 3, 4, 6, and 7. Id. at 10. Id. Significantly, Father does not 

specifically discuss the custody factors with his challenge.

As to relocation factor 1 (the nature, quality, extent of involvement and 

duration of the children’s relationships with the party proposing to relocate 

and with the nonrelocating party, siblings and other significant persons)

Father highlights the Children’s relationships with him and his parents and in 

the community, which were recognized by the trial court. Father’s Brief at 10-

11. Father argues, “These significant relationships with the grandparents and 

friends, as well as the strong relationship with [Father], will all be terminated 

once the Children relocate from Hummelstown, Pennsylvania to Wantagh, New 

York.” Id. at 11.

As to relocation factor 3 (the feasibility of preserving the relationship 

between the nonrelocating party and the children through suitable custody 
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arrangements, considering the logistics and financial circumstances of the 

parties) Father asserts, 

While the [trial] court does address [this] factor, it does so in a 

cursory manner, with only four sentences, giving no explanations 

or references to the record. The [trial] court notes in its opinion 

that depending on where Mother purchased her home, it would 

“create a separation of approximately three hours and fifteen 

minutes from Father’s current residence.” It acknowledges that 

this would create significant inconvenience for [Father] and 

drastically change the current 2-2-5-5 custody schedule. 

However, the [trial] court fails to address the fact that Mother 

does not have a house in Nassau County, New York, which is key 

to adequately determine how long the transportation to and from 

would be. The “separation” to and from New York can range 

anywhere from a three to eight-hour trip depending on the day 

and time of departure. Without a home established, there is no 

way for the court to adequately gauge the time of separation 

between [Father]’s current home and relocating the Children in 

New York. This factor includes facts in the case that require 

adequate consideration and analysis; the court failed to do so, and 

thus abused its discretion in determining that this factor weighed 

more in favor of [Mother] without giving it adequate 

consideration. The [trial] court notes that Father’s time with 

[C]hildren will dramatically decrease from being on a weekly basis 

to only two weekends a month. The [trial] court’s conclusion that 

Father could maintain a meaningful relationship with the minor 

children if they relocated to New York is simply not feasible.

Father’s Brief at 11-12.

As to factor 4 (the children’s preference, taking into consideration the 

age and maturity of the children), Father maintains that the court did not give 

adequate weight to L.Y.’s preference to maintain the status quo. Father’s Brief

at 12-13. Father avers,

A child’s preference should carry significant weight and be 

carefully considered when determining what would be in their best 

interests. Greib v. Driban, [458 A.2d 1006, 1007] (Pa. Super. 

1983). In addition, the [c]ourts shall provide greater 
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consideration to the child’s preference if they are older and portray 

a sense of maturity and understanding of the circumstances 

surrounding them. [Id.] L.Y. was very clear with the Trial Judge 

that she wanted to remain in the Hummelstown area. In its 

opinion, the [trial] court noted that L.Y. “appear[ed] to be a bright 

and confident 12-year-old who was able to express her views.”

During the interview, the court noted that L.Y. expressed that her 

“preference is to remain in the Hummelstown area and maintain 

the status quo.”

Id. at 12-13 (record citations omitted).

As to factor 6 (whether the relocation will enhance the general quality 

of life for the party seeking the relocation, including, financial or emotional 

benefit or educational opportunity), and factor 7 (whether the relocation will 

enhance the general quality of life for the children, including financial or 

emotional benefit or educational opportunity), Father argues Mother failed to

provide a new home address in New York or the intended school district for 

the Children. Father also maintains that Mother admitted she did not have 

employment in New York nor was she accepted into a higher education 

program in New York. Father’s Brief at 13. He concludes, “Mother did not 

have any concrete and established benchmarks for the [c]ourt to adequately 

weigh this factor.” Id. After careful review, we decline to disturb the court’s 

custody order.

In supporting its determinations, the trial court reasoned:

As stated previously, the [c]ourt reviewed all relocation and 

custody factors when determining the best interest of the 

[C]hildren to relocate with Mother. The [c]ourt also considered 

the impact it may have on a meaningful relationship with Father. 

In the [c]ourt’s view it is in the best interest of the [C]hildren to 
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permit Mother to relocate with the children to Wantagh, New York 

and grant Father ample opportunity for regular contact.

1925(a) Op. at 4.

“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.3d 

647, 652 (Pa. Super. 2011). Although the court is required to give “weighted 

consideration to those factors which affect the safety of the child” pursuant to 

23 Pa.C.S. § 5328(a) and 23 Pa.C.S. § 5337(h), this Court has stated:

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. See A.D. v. M.A.B., 989 A.2d 32, 35-36 

(Pa.Super. 2010) (“In reviewing a custody order ... 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.”). . . .

M.J.M. v. M.L.G., 63 A.3d 331, 339 (Pa. Super. 2013) (emphasis added). 

A careful review of Father’s claims, against the trial court’s findings, 

reveals a challenge to the court’s findings of fact and determinations regarding 

credibility and weight of the evidence. Father, in essence, questions the 

court’s conclusions and seeks this Court to re-weigh the evidence. This we 

cannot do. As stated above, the trial court’s findings of fact and 

determinations regarding credibility and weight of the evidence are not 

disturbed absent an abuse of discretion. See C.R.F., 45 A.3d at 443. As we 

stated in King v. King, 889 A.2d 630 (Pa. Super. 2005), “It is not this Court’s 

function to determine whether the trial court reached the ‘right’ decision; 
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rather, we must consider whether, ‘based on the evidence presented, given 

[sic] due deference to the trial court’s weight and credibility determinations,’

the trial court erred or abused its discretion. . . .” Id. at 632. After a thorough 

review of the record, we find no abuse of discretion. Further, to the extent 

Father challenges the weight attributed to any factor by the trial court, we 

likewise find no abuse of discretion. As stated above, the amount of weight 

that a trial court gives to any one factor is within its discretion. See M.J.M., 

63 A.3d at 339.

In the case sub judice, the trial court analyzed and addressed each of 

the custody and relocation factors pursuant to Section 5328(a) and Section 

5337(h). After careful review of the record, we determine the court’s 

determinations are supported by competent evidence in the record, and we 

will not disturb them. See C.R.F., 45 A.3d at 443. For the foregoing reasons, 

we affirm the order of the trial court.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 01/28/2021