J-S96030-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

R.J.V. IN THE SUPERIOR COURT OF

PENNSYLVANIA

 Appellant

v.

R.E.V.

No. 1227 WDA 2016

Appeal from the Order Entered July 15, 2016

In the Court of Common Pleas of Blair County

Orphans' Court at No(s): 2015 GN 1929

BEFORE: BENDER, P.J.E., BOWES, J., AND SOLANO, J.

MEMORANDUM BY BOWES, J.: FILED JANUARY 30, 2017

R.J.V. (“Mother”) appeals from the July 15, 2016 custody order 

awarding R.E.V. (“Father”) primary physical custody, during the school year, 

of their fourteen-year-old daughter K.V., and granting Mother partial custody 

as dictated by the terms of the court’s order. We affirm. 

Mother and Father married on September 27, 2001, and K.V. was born 

of the marriage on April 3, 2002. Mother and Father separated, and 

subsequently, agreed to a custody arrangement wherein they shared 

custody, rotating physical custody every four days based upon Father’s work 

schedule. That agreement persisted throughout the proceedings. 

On July 2, 2015, Mother filed a complaint for custody requesting 

primary physical custody. At that time, Mother was living in Clearfield, 
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Clearfield County, and traveling often to visit family in Bradford, McKean 

County. Father resided at the marital residence in Altoona, Blair County. An 

evidentiary hearing was held on July 13, 2016, wherein Mother and Father 

testified, and K.V. spoke with the court in camera. The court entered an 

order dated July 15, 2016, directing Mother and Father to share legal and 

physical custody of K.V., and awarding Father primary physical custody 

during the school year, with Mother receiving partial custody on alternating 

weekends, and one weekday evening each week. Mother filed a timely 

appeal and provided a contemporaneous Rule 1925(b) statement of errors 

complained of on appeal. The court filed its Rule 1925(a) opinion. This 

matter is now ready for our review.

Mother presents two questions for our consideration: 

I. Did the trial court abuse its discretion in failing to address 

the relocation factors in its opinion denying the relocation 

request of Mother? 

II. Did the trial court abuse its discretion in finding that the 

custody factors weighed in favor of placing the child in 

Father’s primary custody and was supported by clear and 

convincing evidence? 

Mother’s brief at 8.

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

D.K.D. v. A.L.C., 141 A.3d 566, 571 (Pa.Super. 2016). As such, we defer to 

the trial court’s factual findings that are supported by the record and its 

credibility determinations. Id. Nevertheless, we are not bound by the trial 
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court’s deductions or inferences, nor are we constrained to adopt a finding 

that cannot be sustained with competent evidence. Id. Thus, this court will 

accept the trial court’s conclusions unless it is tantamount to legal error or 

unreasonable in light of the factual findings. Id. at 571-572. 

In a custody case, the primary concern is the best interests of the 

child. Id. at 572. Moreover, “the best-interests standard, decided on a 

case-by-case basis, considers all factors which legitimately have an effect 

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

(citation omitted). 

Mother first asserts that the trial court erred in failing to consider the 

relocation factors set forth in § 5337(h)1of the Child Custody Act in addition 

____________________________________________

1 Section 5337(h) of the Child Custody Act requires the trial court to 

consider the following factors when a party is relocating: 

(1) The nature, quality, extend 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 state, 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. 

(Footnote Continued Next Page)
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to the best-interest factors outlined in § 5328(a), which we address infra. 

Mother maintains that the court must address the ten factors enumerated in 

§ 5337 in any case involving relocation and custody. She concludes that, 

had the court weighed those factors, the outcome would militate in favor of 

granting her primary physical custody of K.V.

 We discern no trial court error. In awarding Father primary physical 

custody of K.V. during the school year, the court considered all sixteen of 

(Footnote Continued) _______________________

(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 relocation, including, but not 

limited to, financial and 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). 
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the best-interest factors pursuant to § 5328(a) of the Child Custody Act. 

Under subsection (a)(16), mandating an examination of any other relevant 

factor, the court explained, “In light of our decision herein to award the 

Father primary physical custody during the school year, we do not believe it 

necessary to specifically address the relocation factors. Further, we believe 

that the elements set forth in such relocation factors have been generally 

addressed above.” Opinion, 7/18/16, at 21.

This Court considered the applicability of the ten relocation factors in 

D.K. v. S.P.K., 102 A.3d 467 (Pa.Super. 2014). In D.K., following a 

separation, the mother moved in with her parents in North Carolina. At that 

time, the father and children resided in Pittsburgh, Pennsylvania. The 

parties entered into a custody agreement permitting the father to maintain 

primary physical custody of the children in Pennsylvania, and providing the 

mother with periods of supervised custody in North Carolina. Approximately 

one year after entering into this agreement, the mother filed a complaint for 

custody seeking primary physical custody. The court subsequently awarded 

primary physical custody to the mother, and the father appealed. 

On appeal, father argued, inter alia, that the mother failed to comply 

with the relocation procedures delineated in § 5337. He contended that 

since the children would be relocated to North Carolina, the mother was 

required to provide him timely notice of her intention to relocate the 

children. As it concerns this matter, we held that § 5337 anticipates that a 
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custodial parent would be relocating and that “where neither parent is 

relocating, and only the custodial rights of the parties are at issue, section 

5337 of the Child Custody Act is not per se triggered.” Id. at 474. Hence, 

we concluded that, where neither party is relocating, the relocation 

provisions under § 5337 do not apply. Id. at 472. Nevertheless, we held 

that, in a case where a child stands to move a significant distance, the trial 

court should still consider the relevant factors of § 5337(h) in its § 5328(a) 

best interest analysis. Id. at 476. 

Herein, Mother resided in Clearfield and Father lived in Altoona when 

Mother filed her complaint for custody. Thus, as in D.K., supra, the trial 

court was not per se required to consider the relocation factors listed in § 

5337(h). However, since K.V. would reside in Clearfield if Mother obtained 

primary physical custody, the court was bound to consider the relevant § 

5337(h) factors in its best interest analysis. 

We find the trial court did not err in failing to address the relocation 

factors specifically, but rather, confirmed that it considered the factors 

relevant to K.V.’s potential relocation as required by D.K., supra. We note 

that there is significant overlap between the best-interest factors and the 

relocation factors. Instantly, the court found that both parties had 

performed, and were capable of performing, all parental duties. In addition, 

remaining in Father’s care would permit K.V. to attend Bishop Guilfoyle High 

School where many of her friends from elementary school would also be 
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attending. On the other hand, if K.V. were required to reside in Clearfield, 

she would be enrolled in an unfamiliar school in an unfamiliar area. The 

court also noted that K.V. had close family relationships in Blair County and 

that she maintained a good relationship with Father’s girlfriend. It reasoned 

that those individuals would be available to provide K.V.’s after school 

supervision. It found that similar relationships did not exist in Clearfield. 

Finally, the court relied upon fourteen year-old K.V.’s well-reasoned 

preference to remain in Father’s custody during the school year. 

When viewed in light of the relevant relocation factors, the trial court 

provided ample reasoning for why it deemed that K.V.’s best interests were 

met through the stable environment and educational opportunities provided 

by remaining in Father’s care rather than moving to Clearfield to live with 

Mother. Hence, no relief is due. 

Next, Mother contends that the trial court improperly weighed several 

of the best-interest factors in favor of Father. The Child Custody Act 

enumerates the following factors the court must consider in determining the 

best interest of a child when awarding any form of custody: 

(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.
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(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 efforts 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. § 5328(a).

Mother’s argument in this regard is multi-faceted. First, Mother 

argues that the court did not properly consider Father’s decision to prevent 

K.V. from relocating to Clearfield when Mother first attempted to move with 

the child. She asserts that the court trivialized Father’s unwillingness to put 

her and K.V.’s needs before his own. Mother also claims that the court did 

not properly consider her status as the primary caretaker. She maintains 

that the court failed to find that she was less fit than Father in tending to 

K.V. 

In addition, Mother alleges that the court gave too much weight to 

K.V.’s expressed preference to stay with Father. She avers that, although 

K.V. prefers Father’s style of discipline, K.V. has engaged in self-harm while 

under his supervision. Lastly, Mother notes that Father’s work schedule 

requires him to secure the aid of third parties to supervise K.V., whereas she 

would be able to nurture the child full-time. Mother concludes that the trial 

court erred in failing to determine that she provided a more stable 

environment for K.V., and thus, that it was in K.V.’s best interests to reside 

with her. We address Mother’s claimed errors jointly. 
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Herein, the trial court found that Mother and Father had demonstrated 

continuing contact with the other party since the inception of the custody 

agreement. The court noted one incident, prior to the custody agreement, 

where Father was prompted to remove K.V. from the marital home when 

Mother informed him that she was moving to Clearfield with the child. The 

court credited Father’s explanation that he feared that Mother was taking the 

child permanently, and that he kept the child only until he had consulted 

with an attorney a few days later. The record reveals no abuse of discretion 

in this regard. Mother discovered K.V.’s location after Father removed her 

from the marital home and the parties entered into a custody arrangement 

shortly thereafter. 

In assessing § 5328(a)(3), the trial court found that both parties were 

capable of performing parental duties. The court recognized Mother’s 

comprehensive contribution to the child’s development. Nevertheless, the 

court observed that Father had also provided care, completed chores outside 

the house, and volunteered for school activities when he was available. As a 

result, it found that both parents had carried out their parental duties and 

were capable of continuing to do so. Although Mother is insistent that her 

role as the primary caregiver should outweigh the factors relied upon by the 

trial court, we discern no abuse of discretion in the court weighing this factor 

equally between the parties. 
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With regards to K.V.’s preferences, the court found K.V. to be an 

“intelligent, thoughtful, mature, and articulate young lady.” Opinion, 

7/18/16, at 12. Essentially, Mother argues that K.V. wants to be with 

Father because he is less of a disciplinarian. The court acknowledged that 

Mother and Father employ differing discipline styles and noted that K.V. 

responded more positively to Father’s methodology. However, the court 

reviewed K.V.’s testimony as a whole, and found numerous reasons as to 

K.V.’s expressed inclination toward remaining with Father. The court stated 

that K.V. and Father enjoy many of the same activities, that Father keeps 

his promises, and that K.V. enjoys a close, trusting relationship with Father’s 

girlfriend. The court emphasized that K.V. desired to remain within the 

Altoona school system where she has friends and enjoys various 

extracurricular activities. Finally, it remarked that K.V. conveyed that she 

wishes to stay Catholic, the faith she shares with Father alone. In this vein, 

she aspires to attend the local Catholic high school. In light of K.V.’s 

numerous and well-articulated reasons for remaining in Father’s care, we 

find the court did not err in weighing this factor in favor of Father. 

Finally, the trial court considered each party’s availability to care for 

the child under § 5328(a)(12). The court determined that due to K.V.’s age, 

this factor had little weight. Nevertheless, it noted that Father had several 

family members in the area who were available to care for K.V. in an 

emergency. On the other hand, although Mother would be available full-
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time, she would be reliant on non-family members in case of an emergency. 

The evidence of record supports the court’s determinations in this regard, 

and therefore, it did not abuse its discretion in finding this factor favors 

Father.

In summary, we conclude that the trial court did not abuse its 

discretion in considering the statutory factors and awarding Father primary 

physical custody of K.V. during the school year and granting Mother partial 

custody as dictated by the terms of the court’s order. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/30/2017