J-S08014-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

L.W.

v.

D.K. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1462 WDA 2019

Appeal from the Order Entered August 29, 2019

In the Court of Common Pleas of Allegheny County Family Court at 

No(s): No. FD-13-000236-008

BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.: FILED MARCH 27, 2020

D.K. (“Father”) appeals from the order entered on August 29, 2019. The 

subject order granted L.W. (“Mother”) permission to relocate from Pittsburgh 

to North Carolina with the parties’ four-year-old son, L.K. (“Child”), and 

modified the parties’ child custody arrangement to accommodate the 

relocation. We affirm.

As the trial court explained:

The parties were never married. They were involved in an 

on-again off-again relationship beginning in 2010 and were 

living together when Child was born, separating not long 

after. Their relationship was tumultuous and their first 

custody order evolved out of the settlement of a protection 

from abuse through a non-PFA consent agreement.

Mother has always had primary [physical] custody of Child, 

with Father having approximately 100 overnights per year. 

Father, however, also exercised custody most weekdays 

while Mother was working as the parties agreed this was 

preferable to Child being in daycare.
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Mother worked as a dental hygienist and Father is a 

self-employed personal trainer with flexible hours. Mother 

has an [11-year-old] daughter from a former relationship; 

Father has no other children. Both parties have extended 

family in the Pittsburgh area. . . .

Approximately a year ago, Mother met [S.B.] at a wedding 

and the two began a relationship. [S.B.] lives in North 

Carolina where he is a state trooper. The two became 

engaged to be married and Mother is expecting his child. . . 

.

[On February 6, 2019,] Mother filed a notice of proposed 

relocation[, where she requested permission to relocate with 

Child from Pittsburgh to North Carolina. Father opposed the 

relocation]. An expedited [two-hour] hearing was held on 

Mother’s petition on June 4, 2019 and [the trial court] 

permitted [Mother] to relocate by [order] dated June 19, 

2019. Mother then moved to North Carolina with Child. 

Father filed a complaint for custody as well as a motion for 

reconsideration and a full trial was scheduled. After a 

[one-and-a-half] day trial and consideration of a post-trial 

memorandum of law submitted by Father, [the trial court] 

entered [an order on August 29, 2019,] again granting 

Mother’s request to relocate and setting forth a 

comprehensive custody schedule for the parties.

Trial Court Opinion, 11/6/19, at 2-3 (footnotes and some capitalization 

omitted).

Father filed a timely notice of appeal. He numbers 17 issues in his 

statement of questions involved:

1. Did the trial court commit an abuse of discretion and/or 

error of law by failing to give proper weight and consideration 

to [Father’s] role in [Child’s] life in determining that this 

factor favors [Mother]?

2. Did the trial court abuse its discretion and/or make an error 

of law by failing to take into account the contacts [Child] has 

with his current status, more specifically, the relationships 
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with all of his extended family in his current area, as opposed 

to no extended family, except for a sibling, in the proposed 

relocation state?

3. Did the trial court commit an abuse of discretion and/or 

error of law by concluding that [Mother’s] proposal provides 

to [Father], feasible opportunity to preserve the relationship 

between [Father and Child]?

4. Did the trial court abuse its discretion and/or make an error 

of law by concluding [Father] has attempted to turn [Child] 

against [Mother’s] fiancé that he is regularly and significantly 

late for exchanges?

5. Did the trial court abuse its discretion and/or make an error 

of law in determining that [Child’s] life would be enhanced by 

allowing the relocation?

6. Did the trial court abuse its discretion and/or make an error 

of law by concluding that [Father] has been aggressive in the 

past?

7. Did the trial court abuse its discretion and/or make an error 

of law concluding under Factor 4 that [Child] is resilient and 

very capable of adjusting and that will create stability and 

continuity in [Child’s] life?

8. Did the trial court abuse its discretion and/or make an error 

of law by concluding under Factor 5 that [Mother], though 

she has no family in North Carolina, she may be a stay at 

home mom and be with her children?

9. Did the trial court abuse its discretion and/or make an error 

of law by concluding under Factor 8 that [Father] has 

discouraged [Child] from having a relationship with Mother’s 

fiancé?

10. Did the trial court abuse its discretion and/or make an 

error of law by determining under Factors 9 and 10 that 

[Father] needs to improve his relationship and behavior 

toward [Mother] when he is frustrated and not taking into 

account [Mother’s] behavior toward [Father] in providing that 

these factors favor [Mother]?
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11. Did the trial court abuse its discretion and/or make an 

error of law in determining that the proximity of the parties, 

under Factor 11, in considering [Mother’s] move to North 

Carolina that the parties will be very far away, without placing 

emphasis that this would favor a non relocation?

12. Did the trial court abuse its discretion and/or make an 

error of law under Factor 13, determining that [Father] has 

initiated much of the conflict between the parties?

13. Did the trial court abuse its discretion and/or make an 

error of law by failing to take into account that Mother had 

indicated in her relocation petition that she was seeking 

employment, however, has changed that position, in that, 

she had substantial employment in this area?

14. Did the trial court abuse its discretion and/or make an 

error of law by failing to take into consideration that Mother 

has had significant relationships over the past several years 

and had only a one-year relationship with her current fiancé, 

that she would see on a biweekly basis?

15. Did the trial court abuse its discretion and/or make an 

error of law by failing to take into account the upcoming 

educational needs of [Child]?

16. Did the trial court abuse its discretion and/or make an 

error of law in allowing the relocation prior to the marriage of 

the parties and significant ownership of property in the North 

Carolina area?

17. Did the trial court abuse its discretion and/or make an 

error of law by failing to impartially [apply] all relevant 

statutory factors to the present case?

Father’s Brief at 10-12 (some capitalization omitted).

We have explained:

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 
J-S08014-20

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to issues of credibility and weight of the evidence, we must 

defer to the [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.

A.D. v. M.A.B., 989 A.2d 32, 35-36 (Pa. Super. 2010) (quotations and 

citations omitted).

Section 5338 of the Child Custody Act (“the Act”) provides that, upon 

petition, a trial court may modify a custody order if it serves the best interests 

of the child. 23 Pa.C.S.A. § 5338. Section 5328(a) sets forth the best interest 

factors that the trial court must consider. See E.D. v. M.P., 33 A.3d 73, 80-

81 n.2 (Pa. Super. 2011). Trial courts are required to consider “[a]ll of the 

factors listed in section 5328(a) . . . when entering a custody order.” J.R.M. 

v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis omitted).

Section 5328(a) of the Act provides as follows.

§ 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 
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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 

another party is not evidence of unwillingness or inability to 

cooperate with that party.
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(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.A. § 5328.

Where a request for relocation of the subject child along with a parent 

is involved, the trial court must consider the following ten relocation factors 

set forth within section 5337(h) of the Act:

(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.
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(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.A. § 5337(h).

“The party proposing the relocation has the burden of establishing that 

the relocation will serve the best interest of the child as shown under the 

factors set forth in [Section 5337(h)].” 23 Pa.C.S.A. § 5337(i)(1).

Within Father’s brief on appeal, Father challenges the weight the trial 

court afforded the evidence and contends that the trial court incorrectly 

weighed the evidence in Mother’s favor. Essentially, Father claims that – as 

to almost every single custody and relocation factor – the trial court should 

have weighed the evidence so that the factor favored him. See Father’s Brief 

at 1-62. However, our role as an appellate court is not to reweigh the 

evidence. Indeed, as we have explained, we may only review for an abuse of 

discretion. Further, we have observed:

we consistently have held that the 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.
J-S08014-20

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

citations, and corrections omitted).

In this case, after reviewing the briefs of the parties, the relevant law, 

the certified record, the notes of testimony and the opinions of the able trial 

court judge, the Honorable Cathleen Bubash, we conclude that Father is not 

entitled to relief and that Judge Bubash’s opinions, entered on August 29, 

2019 and November 6, 2019, meticulously and accurately dispose of Father’s 

issues on appeal. Therefore, we affirm on the basis of Judge Bubash’s 

thorough opinions and adopt them as our own. In any future filing with this 

or any other court addressing this ruling, the filing party shall attach a copy 

of Judge Bubash’s August 29, 2019 and November 6, 2019 opinions. 

Order affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/27/2020
J-S08014-20

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Circulated 03/18/2020 04:03 PM

I 

IN THECOURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYlVANIA 

FAMILY DIVISION 

Leann Weber, 

v. 

Doniel Kovacs; .. 

Plaintiff, 

Defendant. 

No.: FD-13:"000236 .. 008 

I . 

AND NOW, to wJti this.28th day of August 2019, after a one and 1/2-day trial 

and a review of the Portles' Memoranda of Law, Mother'srequest to relocate with 

the Minor child LK. ageq 4, (hereinafteneferred to as "Child"] is Granted 

D.lSCUSSION 

The court held art expedlted 2 hour hearing on relocation hearing on June 

,. 

4, 2019 which resultedin the June· 19,. 201.9 Order permitting Mother to relocate 

with the. minor Child. In q1oking its deterrnlnotlcn. the court specifically reviewed 

the relocation fcctors.set forth in 23 Pa. C.S.A. 5337 and the custody factors set 

forth ih 23 Pa. C.$ .. A. 5328. Fqfl.owing is an updated analysis after the full trlol ort 

the matter. 

2 
Relocation Factors 

1. Natur�, qucdity,. textent of involvement and duration of the Childs 

relatio.nship with pc:frty pr9.posing relocotion Qnd the non-relocating party, 

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$iblings and other.1significatit person. 

The Child L.K. is v�ry close with both parents. He did, however, spend the 

majority of overni@.hts with Mother.. Child has an older sibling s�s. who lives 

with Mother and �ith whom the court would like to ensure o reloflonship, 

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This factor favors K,\other. 

2. Ag.e, developmental stagei needs. of Child and the likely lmpec] the 

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relocation will h9ve on Child's physical, educational and emotional 

developm�nt with consideration for any special needs. 

The child does hot have special needs:' He does well here ih Pittsburgh and 

presumably, Will do well in N.orth Corollno with Mother. He is currently 

·1 

preschool age; so any move Will not disrupt his educofon, The most 

important issue is · that he will miss his Father. The court believes thot the . . . . . . . . . . 

custody provisions of this Order will help reduce this impact. 

3. Feasibility of preserving the relationship between the non�relocating party 

ancf Child through_ suitable custody arrangements. 

. Father has had very regular .dovtrne with the Child in order to keep hlrn out 

of dovccre.wtuch has been.very helpful to the Child. Now that Child will 

be in preschool, this available time will be be curtailed. Father has had 

about 1 oo or so overnights per year. Mother's proposal gives Dad more 

than l 07 ovemights a year and is, therefore. a feasible way to maintain the 

relationship between Father and Child. The use of Skype or face time will 

assist. 

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4. Child's preference 

The child loves both Parents and is too young to voice a credible position, 

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5. Established patterns of conduct of either party t.o promote or thwart the 

relationship of. Chi,ldren and the other party. 

Father hos told th'e Child that Mom's tionce is a 'stronqer'. which scared 

the Child. Child is afraid to. let Father know thofhe likes Mother's ficnce. 

Father is reguiarly- and significantly late tor exchonqes, This factor favors 

I Mother! ; 

6. Whether relocation will enhance the general quality of life for the party 

seeking relocation including but not limited to financidl, emotional or 

educcficncl benefits. 

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Mother credibly testified that her quality of !if e will mprove if she moves. 

Mother's tlonce is.o North Carolina Highway Patrolman, earning in excess 

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of $80;000. Mathe� and her fionce seem well suited and the Child does well 

With him. The Covrt was very favorably impressed with Mother's flonce's 

demeanor and professionalism, as well as his relationship with Child. Of 

note, tie hos often made a point of deescalating wha't he viewed -os 

I . 

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father's aggressiv� behavior. Thi� helps both .Mother cnd.chdd, 

7. Whether relocation will enhance the general quality of life for the Children 

including but not limited to financial, emotional and educational benefits. 

If the child moves,' his life will be improved to the extent that Mother's is. He 

will. though, of course. miss Father very much .. The Parties must manage this 

and help the c.hH¢1 adjust. The reasons and motivations of each .party for 

seeking or opposif,g relocation. 

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Mother is engage.d to Sean Bridges who. lives in North Corollno. There .did 

not seem to be onv ill motive for her move. Father's opposition is because 

· he loves his son a1d will miss him . 

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8. Past and present abuse committed by apart or member of party'i 

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household end w�ether there is a risk of harm to the Children. 

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This factor is. not applicable. 

Custody factors 

Factor I: ''Which patty is more Hkely to enc.ourdge. and permit frequent arid 

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continuing contact b'etween the Child and another porty," 

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I believe that both Parti�s can encourage a relationship with the other, as they 

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did so while in Pittsburgh;. 

Factor .2: 11The present CJ'.nd past abuse committed by a party or member of the 

party's hcusehold, Whether there is a continued risk of hc;mn .to the child or an 

abused party and whlch party cen better provide ndequote physical safegvarcts 

and supervlslon of the child.

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Father has been aggressive in the past though not to the level of cbuse; 

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Factor3 considers the p;arenfol duties performed by ecch party on behalf of the 

child. 

Both Parties do this. 

F.actor 4 directs the ·court to consider the need for stability and continuity in. the. C.hlld's.life. 

While a move will change things, it appears that Mother is making a good 

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decision. The child is resilient and v�ry capable of adjusting. 

Factor S dfr.ee.ts the Couh to consider the availability of extended family. 

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' In Pittsburgh; daycare. '10� not necessary because Mother and Father worked 

together so thot Father hod Child often when Mother wos working. Mother and 

Father both have family here. Mother hos no. family in North Carolina; however, 

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she may have the opportunity to stay at home With her child. The Court values 

the benefits thqt being with extended fomily rnoy have onChild and how those 

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relatives may form support systems for Porents. These benefits do not trump the 

irnportonce of the Mother and Father to the Child,, 

Factor6 regards the child's sibling relat1onships. 

L.K •. hos an older sibling at Mother's home. At the time of trial'. Mother was. 

pregnant. These sibling �elationships wiil be very helpful to Child • 

. 

Factor 7 provides that the Court must consider the "well-reasoned preference of 

·, �he. Child, based on the �hild's maturity and judgment.'' 

The child loves both Parents and 1s too young to voice o credible position 

Factor 8 directs the Court to consider the attempts. of either parent. to turn. the child 

against the other parent -, 

Father has discouraged ¢hild from having a relationship with M'other's flonce. This 

I 

was. lncppropriote. 

Factors 9 & 10, address the parties' likelihood of .maintaining a loving, stable, .ond 

nurturing i'elation$hip with the Child and which Party is more likely to .. attend to the 

daily physical, emotional, developmental, educational, and special needs of the 

·. I 

·Child. 

Both Potties con do this .. Father heeds to improve his relationship .ond behavior 

toward .Mother when he ;js frustrated. This factor tovors Mother. 

Factor 11 concems the proximity of the parties' residences. 

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If Mother moves to NorthCcrolinc, os permitted, they wm be veryfdr·away. 

Factor.12 requites the Court to consider ecch party's. avc:tilability to core for the 

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Child or ability to make �pproprlate child-care arrangenif:!nts. 

Both Parties con do this when the child is in their care. 

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,factor 13 regarding conflict be.tween the· Parties and the Pqrties willingness to 

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cooperate. 

There hos been far too much conflict between the Parties, often initiated by 

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Father. Ihls must stop. This Factor favors Mother 

Factor 14regards-.the hi�toryofalcohol and/or·drug abuse betwee.n the portles. 

Not applicable 

. . 

Factor 15 goes to the mrntal end physical condition of a. party or .CJ member of a 

party's· household. · 

Not applicable 

I 

Factor 16 refers to any ·other relevant fo�tor. 

None 

t • 

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. .i . . . . . . . . . . CU�TODY ORDER FOLLOWS .ON THE NEXT PAGE 

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.. 

INTHE COURTOFCOMMON PLEAS OF ALLEGHl:NY COUNTY,PENNSYLVANIA 

FAMILY DIVISION 

Leann Weber, 

v, 

Daniel Kovacs, 

Plaintiff, 

Defendant. 

No ... : FD-l 3�000236'"008 

FINAL .CUSTODY COURT ORDE'R AMENDED 

(FACTOR DISCUSSION ON PRIOR PAGES) 

And Now this 28th�day of August 2019, regarding custody of L.K. {aged 4}; It 

I 

is hereby Ordered os folJows: 

I. LEGAL CUSTODY 

The Parties shall continue to share Joint legal custody in all creos exc.ept as 

stated below of their f'0inor Child LK., aged 4. Joint iegal custody means that 

both parents have the right duty and responsibility to participate in the decisionmaking process on lssuesinvolvinq theChild. 

Joint legal custody also. means that both parents shall be entitled to equal 

r . . . 

eceess to the Child's important records, including records of medical and dental 

treatments, school records .ond records of octivities. It is each parent's 

responsibility to request copies of the ChHq's school schedule, special event 

notifications, report cards, standardized test scores. meeting notices and other 

similar items directly from the Child's school. Each parent shall notify the other of 

any.appointments that.he or she has made on behalf of the Child with rnediccl. 

dentol, cpticcl, psvcholoqlcol or other healthcare providers, as well as any 

oppolntments. meetin�s Or conferences With any educationql provider Su.eh 

! 

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notice must be given sufficiently in advance so that the non-scheduling parent 

may attend if he or she:wishes to do so. Each parent shall.Provide the other with 

.ot least one ( 1) week cdvonce notice of school or extra-curricular activities 

whenever possible. It is Ordered that 'Our Family Wizard'.be.1.Jsedfor this purpose. 

'· 

The parent then having physical custody. consistent with the other 

provisions of this Order. shell make ministerial decisions involving the Child's dovto-day living. 

II. PHYSICAL CUSTODY 

1. The portles shall share legal custody of the minor child. 

2. .Mother shall have primary phvslcol custody. 

3.. Father shall hove pqrtial physical custodv.Jn Pittsburgh, as follows: 

a. From thE:lifirst Saturday in June until the third Soturday in August, 

each year .. 

b. One. weekend per month in September, October, February, 

March o,nd May, eai::� year; os agreed upon by the parties. 

r .• . ' 

c. From the Wednesday before Thanksgjving vntil the Sunday after, 

eochveor. 

d. From the fir�t day until· �he second to the last dc:iy of holidoy 

break stdrtinQ in December and ending in January. 

e. From Gocpd Friday through the day before spring break ends in 

I 

A l pril. 

f. .At any othenftmes. as the porfles rnov 5'.)greei 

.g. Mother shall be responsible for ail travel related to Father's periods 

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ofpartiai c0stody. including costs Unless Father frovels to N. 

Carolina to see the Child; 

t 

h. If Mother travels to Pitt�burghWith the Child; Father shall be 

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provided wi/h 50% of the overnights available. If Fathe.r is working, 

. Mother may have Child in the daytime. 

Ill. Miscelfaneous 

i. 

: . . ,f ' . . .· 

Father shall hove Focetlrne calls with the minor child each evening 

while in Mother�s custody prior to bedtime. 

1 

.... 

J. The: parties sholl consult eoch other with respect to the education 

and religious troir'iing of the Child; the general welfare of the Child; 

the medical care of the Child: and other like matters ofirnpcrtcnce 

affecting th� Child. The education, development, health and wellbeing of the Child shall be the paramount consideration of the 

Mother and1the father. 

k, Each party �haH, ct all times, keep each other informed of-his or her 

plate of residence and telephone numberand shall promptly notify 

I . . 

the other of ·any change, giving the oddress of the new place of 

residence and the new telephone. number. Each party agrees to 

keep the. other informed of the whereabouts and activities of the 

Child While with thot party. They mutvally agree that if either of 

them has knpwleqge of any illness or occident or other 

I . 

clrcumstonoas seriouslv affectino the health or welfare of the Child, 

10 

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�. 

the Mother or Fath�r. as the cose may be. shall promptly notify the 

other of such Circumstances. 

I. Each party shall have the obligation to have the Child ready for 

beginning end the end of scheduled perloosot partial custody and 

to encourage th.em to participate in the successful implementofion 

of the plan ordered by the· Court While in the presence of the 

' 

Child. neither of the parents nor significant others sha I.I make any 

remarks or qo anything disparaging. which can Jn a11y way be 

. . 

construed as derogatory or uncomplimentary to the other parent 

ahd it shall 9-e the dl.Jty of each parent to uphold the other parent 

as one whom the Child should respect and love. 

hi. The Parties to use QFW J9 choose specific times for all meetings end 

to comrnuniccte about important rnotters relating to the Child. 

n. Child is to be enrolled in a preschool in N. Carolina. 

! 

I . . . . . 

o. This Order soall remain in full force ond effect until furtherOrc:ler of 

Court or Wriften agreement of the parents. 

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i 

·, 

I 

ll 

·the Court: 

J. 
Circulated 03/18/2020 04:03 PM

..,.. ,. 

IN THE COURT OF COMMON Pl�AS OFALLEGHENY COUNTY, PENNSYLVANIA 

FAMILY DIVISION 

DOniel Kovats 

v. 

Leann Weber 

November 6, 2019 

Plaintiff, 

Defendant. 

OPINION 

No.: FD-13,.000236 

Sup. Court No: 1462 WDA 2019 

JtJdg.e Cathleen Bubash 

Father, Dahiel Kovacs (hereinafter "Fother''] has appealed from my A1Jgust 

28�. 2019 Custody Order grontrng Mother, t.eonn Weber

1

s (

11Mother11) request to 

relocote to North Carolina with the parties' son.Lk., age4 (

11Childi1). Becouserny 

. Order was. within my discretion and is in Child'.s best interest, it should be affirmed. 

Background 

The parties were never rnorrtec. They were involved in an on-again off- 

.again relationship beginning, in 20l0 and were living together when Child was 

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born, separating not long after. Their relofionship was tumultuous and their first 

custody order evolved out of the settlement of a Protection from Abuse through 

o Non-PFA Consent Agreement. 

Mother has olways had primory custody of Child, with Father having 

approximately 100 overnights per year. Fcither, however, also exercised custody 

most weekdays while Mother was working as the parties agreed this was 

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prefercble to Child being in dcvcore .. 

Mother worked as a dental hygienist and father is a selr-ernployed personal 

trainer with flexible hours .. M0;ther has an eleven year old daughter from a former 

relationship; Fqtherhas no other children. Both parties have extended family in 

the Pittsburgh area; Approximately a year ago, Mother met Sedn Bridges at o 

wedding and the two began a relationship; Mr. Bridges. lives in North Carolina 

where he is a state trooper. The two became engaged lo be married

1 and 

Mother is expecting his child. Mother tiled a Notice of Propose<:! Relocatioh on 

rebruary 6, 2019 and Father filed a timely counter-cfftdovtt. 

An expedited two hour hearing was held on Mother

1 s petition on June 4, 

2019 end I permitted her to relocate by my Order of Court dated June 19, 2019. 

Mother then moved to North Carolino With Child.i Father filed a Cornplcint for 

Custody as well as a Motion for Reconsid�ration and a full trial was scheduled. 

After a one and a half day trial ond consideroflon of a post-trial Memorandum of 

Law submitted by Father, I entered· my August 28 .. 2019 Order. dgqin granting 

Mother's request to relocate andsetting forth a comprehensive custody schedule 

for the portles, In mdkihg · my decision, I performed on analysis of th� custcov 

factors of 23 Pa;C\S.A. §.5328 and the relocation factors of §.5337. 

This appeal followed. Father has asserted that I committed seventeen (l7} 

separate errors. H.e asserts that I erred or abused tny discretion in my analysis of 

both the 23 Pa.c.s. §5337relcx;ation foctcrscnd the custody factorsof23 Pa.c.s. 

§5328, as well as asserting that I. failed to apply those. stotutes impartially and 

ign.ored evidence .. 

i Mother testified thcit the couple become engaged over the Christmas holiday. Father csserts it 

was later, after the request tor relocctlon. I found Mother credible on this issue but the date of 

their engdgement played a rninrmol role in· my analysis. . . . 

2 Mother moved earlier thoh originolly contemplafeo causing. an unforlunote gop in. Fother's 

cu�ody ·. 

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Discussion 

While I will address Father's assertions of error generally below, I first note 

that while I found both otthese parents to be competent and committed parents 

who both want the best for Child, my role is to determine whatis in the best interest 

of the Child, not the. parents .. These parties have historically had o very difficult 

time. co-parenting Child due to their inability to properly communicate with each 

other. Fault for this lock of communication Hes with both porfles. 

I dld, however, find Mother's descriptions of the parties' day to day 

interactions with Child end with each other to be more credible .thon Father

1 s. I 

also found Father's testimony regarding his conslstentlcteness in. picking up and 

returning Child from his periods of custody not to be credible .. With regard to the 

parties' testimony concerning Father's aggressive1endendes toward Mother and 

her flonce. I also found Mother to be more credible. on· issues of credibjljty and 

weight of the' evidence, the SuperiorCourt defers to "the findings of the trial judge 

who has had the opportunity to observe the. proceedinqs and demeanor of the 

witnesses." Billhime v, Billhime, 869 A.2d 1031, IOJ6 (Po�Super;200.5) (citation 

omitted}. ln this case, I found that Father could see only his §Jood qualities as a 

Father; but also artificially and negatively portrayed Mother and attempted to 

negate herverv r�al role. in the Child's life as her primary cusrodlon. 

In the first twelve paragraphs of his l 925{b) Statement, Father olleqes'l failed 

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to properly weigh and apply both the statutory custody factors of 23 Pa. c:s. 

§.532$ dnd therelocorlon teeters of §5337. I ernphosized the.tcctors which I found 

were entitled to the most weight in this case. "lr is within the trial court's purview 

as the finder of fact to determine which enumerated best interest factors are most 

salient and critical in each particular child custodvcese .. llM.J.M. v. M.L.G;, 63 A.3d 

331, (Pa. Super;20J3): opp. den. 68 A.3d 909. 

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A. Relocation 

. Father asserts that .1 erred by finding that Retocctton Factor I tovored 

Mother because I did not give "proper weight and consideration to the Father's 

role in the child's life ... " I did, in fact, recoqnize Father's Signifi<.:ar.it tole, but also 

found Child has spent a majority of his overnights With Mother, who hos been his 

primary custodian tot his entire life, He also has an older sibling who lives with 

Mother and will soon hove on additional sibling who will be living with Mother, so 

I found this factor w.e.ighed in her tovor. Factor I requires that .1 examine the 

"nature, quality, extentot involvement, and duration of the Child's reloflonshlps" 

not just with the parents, but wlth siblings end other significant persons; I found 

this factor to tcvor Mother. 

Likewise� contrary to Father's assertion that I failed to "toke into occount" 

Child's contacts w.ith extenqed family, I did consider that Child has extended 

torriily which act cs a support system in the Pittsburgh area and none in North 

Carolina. I found Mother credible; however, when she. described the visits her 

mother and other relatives hovemode and will make to NOrth Corofno. Mother's 

testimony demonstrated mor she understands thejrnportunce of family and will 

preserve. Child's connections to his extended relcttons. She said. of maintaining 

those ties: 11So family - we don't lose ties because we moved. Our relationships 

are .still intact.''(TR, 8/20 p. 149). Additionally, my Order grants Father extended 

periods of custody in Pittsburgh and he has olso indicated he will preserve Child's 

relationship with both his and Mother's.extended family, I found; however, Child's 

relationships With his siblings to be more important them his relationship with his 

cousins and other extended relations when weighing this factor, Father 

a pp eared to Q ive no importance to Child's reloflonshlp with his sibling due to their 

age difference {TR. 8/20 p .. 81-82). 

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Father next argues that! erred in mv.onolvsis of Factor 3 by determining that 

Mother's proposal provides Father a feasible opportunity to preserve his 

relationship with Child .. Mother's proposal and my Order provide Fatherwith more 

overnights than he hod before the relocctien, He is provided long periods of 

custody during holldovs.. summer, and long weekend�, regular telephone and 

Facetime contact, and additional periods of custody should he travel to North 

Corolino to visit Child; Father has a flexible schedule as he owns his own business 

and could make orrcncernents to travel to North Carolina. 

I omcoqnlzontthot-the time Fother hosspentwtth Child,.vv.hich was almost 

daily, wUl be impacted by the relocation; As I noted in rnv Order, however, this 

doily contact would have been curtailed anyway as. Child began attending 

school. The. custody schedule set out in my Order will provide Pother with a 

feasible way of mdintairiing his meaningful relationship with Child. 

Next, Father focuses on my analysis of Factor 51 whether either pcrtv's 

conduct has demonstrated an attempt to "thwort the relationship of Children 

ond the other party." I found that two Separate aspects of fdther' s behavior 

resulted in this factor weighing in Mother's favor. First, Mr� Bridges' credible 

testimony made clear that Father was .ontoconlsfic toward Motheris ficnce on 

numerous occasions and behaved toward him in an unfriendly fashion in front of 

Child. {TR. 8/20p, 129-131, 13.4 ... 135). Father also told Child that Mr. Bridges was a 

"stranger" which I found was intended to cause Child to fear and/or mistrust M.r. 

Brid�es. (TR 6/4 p. l l 3; TR. 8/20 p. 100). seeondlv, Father was perpetually and 

significa11tly late for custody exchanges, often more than an hour. This caused 

Mother to be in stressful situations Where she hod to get coverage for Child so she 

could make it to work, or where Child was returned close to bed time, rather than 

at en hour when he and Mother could ehjoy cm evening together .. This oehovlor 

happened too consistently tobe mere inadvertence . .Father himself testified thot 

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he was often lote becouse h'e was eating dinner with Child. I found that this 

behovlor was purposeful ond dernonsfrated that Fother holds Moth.er in disdoin. 

In the fourth parograph ot his Stclement. Father conflates these two . . . 

behoviors. I did not find .. nor did. Lstote in my Order that ·by be.'ing lote, F9ther 

ctternpted to turn Child: against Mother's fionce ... I found, instead, that Father 

behaved - both by acting aggres:sive'ly "toward Mr:. Bridge$ and ·i.n disrespecting 

Mother·' s time ,With Chilo - in . a rnonner whtch would serve to thwart the 

retotlonsblp between ·Child and.,Mother ·OS. well csbelween Child and Mr. .. .-e>ridges·. 

Conversely, Mr: Bricfges. corrrrnendoblv behoved in a manner designed to de;;. · 

escalate the ·strifa '.Foth.er"s behavior was· .oaus.ing .. 

Father also. claims I erred by finding Child's. life wou lcf be enhanced by the. 

move :o.s· contemplated b.y_ Facrcr 7; .As the.portv proposing relocchon .. Mqfh�r 

bears the burden ofprovihg relocotlon will;serve:the children's best interests. See 

23 P.a.C.;S.A. § 53·37.li}, S.J.S� v, M.J.S"!/ .76 A..39 .S4L 5.51 {Pd: Super ... 2013.) -, l· found 

that Mother met her burden. l found fhat Chiid''s life wili be enhanced by the 

enhoncernent of _Mother's Hfe, .both financially and emotionally. Mother testiffed 

that she will be able to stay at home for a time with Child .ond his new- sibling due 

to her ticnces sufficient income, Which Will be helpful for Child's transition. (TR. 

B}-20· p .. 159). Addlti.onolly, M.othet ond her flonce seem well suited and 

demonstrated o caring and gen'tle attitude toword each other which will be a 

g.bod atmosphere for Child-to le·arn obout adult reloflonships -. 

I acknowledged that ChJld will miss his Father and that Father provided 

·significant and beneflclcl things to Child'.s fife. He .will still be cble t.o do so under 

the custody terms o.f mvoroer. Child will not have d<iily contoct wlth his. cousins 

and. extended fam.ily with _th.e relocotion, bu.t he will have daily contact- with his 

·siblihgs which I, deemed to be more irnportont. He will be able to maintain his 

r-e.lationship.s with his couslns duri0g holidays and extended visits to Pittsburg.h 

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In all, I found that the relocation factors primarily favored Mother, The terms 

of my Order will allow Mother to have happiness in her new marriage and new 

baby which will tie beneficial to Child and. his happiness os well, while also 

allowing Fatherto rnolntoln o significant dncl meaningful relationship with his son. 

B. custody factors 

Father next finds fauit with my analysis under custody factors 2, 4, 5; 8, 9., 1 Q, 

11, and 13. In essence, all of his cornpldlnts come down to. a disagreement with 

my determination that the lion's share of the problems betwe.en the parents were 

caused by Father, who I found to be both passively and actively aggressive in his 

behavior toward Mother end her fionce. both important people in his son's life. 

The parties both testified that they had o difficult time communicating: I did 

not conclods that all toult fell to Father. I did fihd from the testimony, however, 

that it was Father who exccerboted the situation by being consistently late, by 

attempting to thwart the relationship with Mother's ficnce. by acting in an 

aggressive manner at exchanges, and by interfering with Mother's 

communtcotlon with Child when he was in Fother's custody. {TR. 8/20 P� 144). 

Moreover, despite being ordered to do so on more than one occasion since April 

20.l 9, Father refused to communicate with M.oth19r using "Our Family Wizard", only 

registering for i.t on the day prior to trial in August which could hcveellmtnctec or 

reduced some of the breakdown in comrnunlcotlon. {TR. 8/20 p. 9.2-93, 14.1-142). 

Additionally, I found Father's fear that Chilq will lose his religion, lose his 

connection with tornily. not receive a good education, and not be properly 

porented if he relocated With Mothe.r to be exaggerated. His attempts to paint 

.Mother os mentally imbalanced, 'Unstable, flighty and promiscuous, likewise, were 

notreolisflc, (TR. 8/20p. 80.;81, 169-170). 

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Father complains that I did not findthat Factor 11 regarding distance and 

proximity precluded relocation. Many relocation cases result lrt o pare qt living a 

great dlsto nee from a Child. But distance is but one of the factors to be 

considered. When weighed against the factors to which r gave. greater weight, 

this factor was less important. 

lmportaritlyi I found, based on the testimony, that Factor l otthe custody 

factors was more important and that of either party, Mother was more likely to 

encourage o relationship with Father,. as evidenced by her willingness to provide 

Child'$·trdnsportation tovisitwith Father in Pittsburgh, as well as providing him with 

an adequ.ate substltute for regular access - induuing exlensive holiday ond 

summer custody, and liberal custody in North Carolina; In contrast; Father 

proposed to oniy allow Mother to exercise partial custody of Child only in 

Pittsburgh ·it her relocation petition was denied. [TR. 8/20 p. 86). lt·wqs only after 

prodding that he· agreed Child could spend summers and holidays in North 

Carolina with Mother, (TR. 8/20 p. 87:.;88). 

My review of many of the. custody factors resulted in ah almost neutrol 

balance. between the parties, but the relocation factors favored Mother as did 

the factors dealing with attempts to thwort the relationship with the other parent 

C� Father's Remaining Complaints 

In paragraphs 8 through 12 on the third page of his l925(bJ Statement, 

Father complains that I did not properly weigh Mother's decision not to seek 

employment in North Corollno = that I failed to consider that she had been 

involved in "significant relotionshlos" over the post several years. He also 

complains that I did not consider Child's upcoming educational needs or that 

Mother was not yet married and that she and herflonce had changed addresses 

since the filing of the Relocation Notice. Lastly, he ccmplclns that I was not 

irnpartialin my application of the relevant statutory factors . 

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Mother indicated in her initial Notice of Relocation that she was seeking 

employment cs-o dental hygienist in North Caronna. Afterwards, Mother decided 

not to seek employment but to stay home with her children. J dldnotffnd that this 

indicated she had engaged in deceit or that she could not make up her mind. 

She and her ficnce ultimately purchased a lot and new home in a new 

development. I did not find this to be concerning either. (TR. 8/20 p. l.l SJ. 

I, likewise, did not find the fact that Mother dated two men in the three 

yeu1s lhe porlies were aμtli'l .10 be �Videric..:e of promiscuily, flightiness or instability, 

which seemed to be the inferences Father expected me to drow. 

Lastly, Father questions my impartiality iri the application of the statutory 

factors. As I stated above, end cs I also stotedln the courtroom ond in my Order, 

J found both' parties to be competent, loving parents who care deeply for their 

Child. In this cose. I had to choose which parent would be the primary custodian 

and where the. Child should. live. On balance, I found that it Was in the Child's 

best interest to remain With the parent who had always been his primqry 

custodian and that he should live. with Mother and his siblings in the home she is 

making with her new husband-to-he. That I did not rule in. Pother's favor is not 

evidence of bias. 

Conclusion 

Becouse I dndiy:zed this cose in light of the relevant statutory factors and 

because my August 28, 2019 Custody Order is supported by the evidence end 

serves the best interests of Child, it should be affirmed�

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