J-A04007-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

K.C., IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

A.B.,

Appellant No. 3115 EDA 2016

Appeal from the Order Entered August 1, 2016

In the Court of Common Pleas of Monroe County

Civil Division at No(s): 1186 CV 2016, 193 DR 2016

BEFORE: SHOGAN, SOLANO, and PLATT,*JJ.

MEMORANDUM BY SHOGAN, J.: FILED APRIL 05, 2017

A.B. (“Father”) appeals the order entered August 1, 2016, permitting

K.C. (“Mother”) to relocate with the parties’ minor sons, A.C.B., born in 

January of 2012, and R.M.B., born in May of 2013 (collectively, the 

“Children”), from Brodheadsville, Monroe County, Pennsylvania, to Seaford, 

Sussex County, Delaware. The order also awarded shared legal custody of 

the Children to the parties and primary physical custody to Mother with 

periods of physical custody to Father.1 We affirm. 

____________________________________________

*

 Retired Senior Judge assigned to the Superior Court.

1

 The trial court referred to this as shared physical custody. Order, 8/1/16, 

at 18, ¶2.
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On February 19, 2016, Mother filed a complaint for primary physical 

custody of the Children and a request to relocate with the Children to 

Seaford, Delaware.2 On February 23, 2016, Father filed a counter-affidavit 

objecting to the proposed relocation. Mother filed a notice of proposed 

relocation on February 24, 2016. On March 23, 2016, Father filed an answer 

and new matter containing a modification request seeking primary physical 

custody of the Children if Mother pursued relocation.3, 4 

The court conducted a custody/relocation hearing on June 1, 2016. 

Mother and Father, who were both represented by counsel, each testified on 

their own behalf. In addition, the court heard from: Maternal Grandmother, 

A.C.; Mother’s friend, Amanda Lloyd; Father’s employer and friend, Kevin 

Conkle; Father’s employer, Frank Malpere; Paternal Grandmother, K.B.; and 

Father’s cousin, B.R.5 At the time of the hearing, Mother and Father, who 

____________________________________________

2

 Mother grew up in the Seaford, Delaware area and her extended family, 

including her mother, father, step-mother, sister, and brother, continue to 

reside there. N.T., 6/1/16, at 7, 60. In addition, Mother and Father 

previously resided in this area from August 2012 to August 2013. Id. at 15.

3

 At the time of the hearing, Father requested primary physical custody if 

Mother relocated to Delaware. In the event Mother chose not to relocate, 

Father, however, requested shared physical custody. Id. at 225-226.

4

 Upon review of the record, prior to the entry of the August 1, 2016 order, 

the parties were not subject to a court order with regard to legal and 

physical custody of the Children.

5 The trial court incorrectly refers to B.R. as Father’s sister. Opinion, 

8/1/16, at 5.
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were separated and had a “strained” relationship, continued to reside 

together in the same residence in Brodheadsville. N.T., 6/1/16, at 5, 13. At 

the conclusion of the hearing, the court denied Mother’s oral request to 

temporarily grant the relocation pending the court’s decision, and declined to 

require Father to vacate the parties’ residence. Id. at 285-289.

By order dated and entered August 1, 2016, the court granted 

Mother’s request to relocate to Seaford, Delaware. The court further 

awarded shared legal custody to the parties, and primary physical custody to 

Mother with physical custody to Father on alternating weekends from Friday 

at 6:00 p.m. until Sunday at 5:00 p.m., at any time there is a break in the 

school calendar of five consecutive days and as the parties agree.6 Also on 

August 1, 2016, the court issued an opinion analyzing the required custody 

and relocation factors. Thereafter, on August 26, 2016, Father timely filed a 

notice of appeal and a concise statement of errors complained of on appeal 

pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). On September 6, 2016, the 

court filed a formal opinion pursuant to Pa.R.A.P. 1925(a) incorporating, in 

part, its opinion of August 1, 2016.7

In his brief on appeal, Father raises the following issues:

____________________________________________

6

 The court further directed the parties to maintain the current shared 

physical custody schedule until relocation occurs. Order, 8/1/16, at 18, ¶2A.

7

 While the court’s opinion pursuant to Pa.R.A.P. 1925(a) was filed and 

docketed on September 6, 2016, we note it was not forwarded until 

September 7, 2016.
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A. Did the court err in its application of the relevant relocation 

factors and ultimate finding that [M]other carried her burden 

of showing the relocation and change in primary custody was 

in the [C]hildren’s best interest?

B. Was it error for the court to consider evidence not of record, 

which was not subjected to cross examination, including a 

letter referencing a drug report and testimony which was 

heard in a PFA matter on essentially the same facts by 

another judge of concurrent jurisdiction?

Father’s Brief at 10 (emphasis omitted).

In custody cases under the Child Custody Act, (“the Act”), 23 Pa.C.S. 

§§ 5321-5340, our standard of review is as follows:

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) (internal citation 

omitted). 

We have stated:

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 
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proceeding cannot adequately be imparted to an appellate court 

by a printed record. 

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

Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)).

In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), we 

stated the following regarding an abuse of discretion standard:

Although 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.

Id. at 18-19 (quotation and citations omitted).

With any custody case decided under the Act, the paramount concern 

is the best interests of the child. See 23 Pa.C.S. §§ 5328, 5338. 

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.
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(7) Sole legal custody.

23 Pa.C.S. § 5323(a).

Section 5338 of 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. 

§ 5338. Section 5328(a) sets forth the best interest factors that the trial 

court must consider. E.D. v. M.P., 33 A.3d 73, 80-81, n.2 (Pa. Super. 

2011). 

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 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.
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(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.

(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).

Further, Section 5337(h) sets forth the relocation factors that a trial 

court must consider when ruling on a relocation petition. E.D., 33 A.3d at 
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79. Where a request for relocation of the subject child is involved, the trial 

court must consider the following ten relocation factors set forth within 

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.

(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.
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(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). See E.D., 33 A.3d at 81 (“Section 5337(h) mandates 

that the trial court shall consider all of the factors listed therein, giving 

weighted consideration to those factors affecting the safety of the child.”) 

(emphasis in original). 

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.” 

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

in original). Section 5337(h) requires courts to consider all 

relocation factors. E.D., supra at 81. The record must be clear 

on appeal that the trial court considered all the factors. Id.

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.A. § 5323(d). Additionally, 

“section 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.” C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013), 

appeal denied, [620 Pa. 727], 70 A.3d 808 (2013). Section 

5323(d) applies to cases involving custody and relocation. 

A.M.S. v. M.R.C., 70 A.3d 830, 835 (Pa.Super. 2013). A.V. v. 

S.T., 87 A.3d 818, 823 (Pa. Super. 2014).

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.” M.J.M. 

v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013), appeal denied, 

[620 Pa. 710], 68 A.3d 909 (2013). A court’s explanation of 
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reasons for its decision, which adequately addresses the relevant 

factors, complies with Section 5323(d). Id.

A.V. v. S.T., 87 A.3d 818, 822-823 (Pa. Super. 2014) (emphasis in 

original). Moreover, “When a custody dispute involves a request by a party 

to relocate, we have explained ‘there is no black letter formula that easily 

resolves relocation disputes; rather, custody disputes are delicate issues that 

must be handled on a case-by-case basis.’” C.M.K. v. K.E.M., 45 A.3d 417, 

421 (Pa. Super. 2012) (quoting Baldwin v. Baldwin, 710 A.2d 610, 614 

(Pa. Super. 1998)).

Turning to Father’s first issue, he asserts that the trial court misapplied 

the relevant relocation factors and erred in finding Mother established that 

primary physical custody and relocation was in the Children’s best interest. 

Father’s Brief at 14. Father argues that, as he was involved with the 

Children on a daily basis, his “full-time role . . . was not adequately 

addressed, the order was inappropriate under the law, and not in the 

children’s best interest.” Id. Referencing a lack of career advancement, 

poor educational performance, the necessity for daycare and impact on daily 

routine, and severance of family bonds, he proffers that Mother presented 

“no compelling reason” for relocation and “[a]bsent[] the alleged conflict 

between the parties, relocation is clearly not warranted.” Id. Father avers 

relocation affords “no great improvement” to the quality of life for Mother or 

the Children. Id. at 16-17. Likewise, given his and his family’s extensive 

involvement with the Children, coupled with Mother’s desire to relocate three 
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and one-half hours away, Father argues there is no adequate substitute 

custody arrangement. Id. at 17. Lastly, Father questions the trial court’s 

finding of no educational advantage weighing towards the Children’s quality 

of life and long-term well-being in light of the evidence of Seaford School 

District’s poor performance. Id. at 18. Noting the statistical evidence 

presented as to the two school districts in question, Father states, “Despite 

these facts, the trial court found, that ‘neither School has an educational 

advantage over the other,’ which is clearly against the facts as presented.” 

Id. (internal citation omitted).

As we construe this issue, Father questions the trial court’s findings of 

fact and determinations regarding credibility and weight of the evidence. 

Under the aforementioned standard of review applicable in custody matters, 

these are not disturbed absent an abuse of discretion. See C.R.F., 45 A.3d 

at 443. Upon review, we find no abuse of discretion.

In the case at bar, as required by law, the trial court carefully analyzed 

and addressed the factors under Section 5328(a) and Section 5337(h) in 

considering the Children’s best interests and relocation. Opinion, 8/1/16, at 

5-13. Significant to the trial court were Father’s anger and threatening 

behavior and the resulting conflict between the parties, as well as Father’s 

drug use. Id. at 6-10, 13-14. 

Mother described the home environment as “toxic” and “hostile” 

noting, “[Father] is very angry. He does not communicate well, so it tends 

to lead to arguments, lots of yelling, lots of screaming. . . .” N.T. 6/1/16, at 
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31. She confirmed that this led to destructive behavior, such as Father 

breaking things and putting holes in walls. Id. at 32-33. 

Moreover, evidence was also presented of Father’s threatening 

behavior. Most recently, approximately one week prior to the 

custody/relocation hearing and the morning of the pre-hearing, Mother 

indicated that she called the police after Father became angered that she 

gave child A.C.B. milk in bed, and he threatened Mother. N.T., 6/1/16, at 

38. Mother testified, “He was very angry. He had threatened against [sic] 

me he was going to harm me. And then when he left in his fit of anger, he 

took his handgun with him and left the house very abruptly.” Id. at 38-39. 

Specifically, as reported by Mother, Father stated “he was going to knock 

[me] out and he should have done it a long time ago.” Id. at 38, 115. 

Similarly, Mother recounted another incident where Father became angered 

and flipped the mattress after A.C.B. had an accident and wet the bed. Id.

at 33-34. Discussing this incident, Father admitted he was “not a great role 

model” for his children. Id. at 265. 

In yet another incident, Mother described Father becoming angered 

with and confronting another driver with a gun while the Children were in 

the car. N.T., 6/1/16, at 40-41. In addition, altercations between Father 

and his brother-in-law, as well as Father and his uncle, were related. Id. at 

19-20, 43. Further, Mother testified that Father smoked marijuana “daily,” 

including while the Children were in his care. Id. at 42. While Father 

indicated his intent not to smoke in the future, he acknowledged that he last 
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smoked two and one-half to three weeks prior to the custody/relocation 

hearing. Id. at 235, 262. 

In summarizing its analysis, the trial court stated as follows:

In conclusion, we find that the factors weigh more heavily 

in favor of the Children relocating to Seaford, Delaware. We 

make this determination after careful review of the record and 

evidence. While no one factor alone outweighs any other factor, 

we must consider all the factors together to determine what is 

best for the Children. Father has had repeated outbursts, the 

last one which resulted in the issuance of a PFA. In addition, 

after Father indic[a]ted that he does not want to use drugs, he 

recently tested positive for a controlled substance. We are

concerned about the level of hostility between the parties and 

Father’s apparent inability to control his anger. We will require 

Father to continue with anger management counseling and drug 

and alcohol treatment. In weighing all if [sic] these factors; we 

believe that it would be in the best interests of the Children to 

relocate with Mother. Accordingly, we will grant Mother’s 

request to relocates [sic] and her request for primary physical 

custody of the Children.

Nevertheless, we recognize that Father has been involved 

in the Children’s lives. As such, we will grant Father extended 

periods of visitation over school holidays and during summer 

school vacation. We believe, however, that Mother will be better 

able to continue to provide the care and support for the Children 

and that the relocation will be in the best interests of the 

Children. . . .

Trial Court Opinion, 8/1/16, at 13-14. 

After review of the record, we determine that the trial court’s findings 

regarding the custody factors set forth in Section 5328(a) and relocation 

factors set forth in Section 5337(h) and determinations regarding the 

Children’s best interests and relocation are supported by competent 

evidence in the record. See C.R.F., 45 A.3d at 443. As we find that the 
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trial court has not abused its discretion, and its conclusions are not 

unreasonable in light of the sustainable findings of the trial court, we will not 

disturb them. Id.

In his second issue, Father maintains the trial court committed 

reversible error by considering extra-judicial evidence not subject to crossexamination in violation of his right to due process.8

 Father’s Brief at 19. 

Specifically, Father points to a letter forwarded post-hearing that referenced 

drug test results from Catholic Social Services, as well as a Protection from 

Abuse (“PFA”) order entered against Father post-hearing.9 Id. Father 

suggests the trial court’s consideration of this evidence “had a prejudicial 

effect” on the court’s analysis and determination of the relevant factors. Id. 

Moreover, Father argues the court’s consideration of this evidence was in 

violation of his right to due process and the “in court presentation of 

evidence.” Id. at 19-20. Father further maintains that the court’s 

consideration of this evidence as it relates to the PFA order was in violation 

of the coordinate jurisdiction rule. Id. at 20. Father posits that, with the 

PFA, Mother was attempting to exclude Father from the joint home based 

upon the same evidence presented at the June 1, 2016 custody/relocation 

hearing, where she was unsuccessful. Id. at 22. 

____________________________________________

8

 We observe Father proceeded to provide extra-judicial evidence of his own 

with his submissions to this Court.

9

 A final PFA order was entered against Father on July 25, 2016.
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In assessing this challenge, the trial court found a lack of prejudice to 

Father with regard to its ultimate determination regarding custody and 

relocation. The trial court stated:

[Father] complains that we erred in considering evidence 

which is not of record, a Protection from Abuse (“PFA”) Order. 

The PFA Order was entered after our hearing but before our 

Opinion was filed. We took judicial notice of the PFA Order 

which was issued by another judge of this Court. Nevertheless, 

we found [Mother] credible in her testimony concerning 

[Father’s] anger and outbursts. The issuance of the PFA did not 

have a prejudicial effect on our consideration of the factors for 

custody or granting of [Mother’s] request to relocate.

In his next point of error, [Father] complains that we 

committed an error in admitting evidence related to an alleged 

positive test by [Father] for controlled substances. First, we did 

not admit the letter into evidence which references the positive 

test by [Father] for controlled substances. However, we agree 

that we should not have addressed the positive test by [Father] 

in our Opinion. Nevertheless, it does not change our decision 

about what is in the Children’s best interest and permitting the 

relocation to Seaford, Delaware. We find no error in this issue. 

Statement Pursuant to Pa.R.A.P. 1925(a), 9/6/16, at 1-2 (unpaginated). 

With this, we agree.

An error will be deemed harmless if:

(1) the error did not prejudice the defendant or the prejudice 

was de minimus; or (2) the erroneously admitted evidence was 

merely cumulative of other untainted evidence which was 

substantially similar to the erroneously admitted evidence; or (3) 

the properly admitted and uncontradicted evidence . . . was so 

overwhelming and the prejudicial effect of the error was so 

insignificant by comparison that the error could not have 

contributed to the verdict.

Commonwealth v. Markman, 916 A.2d 586, 603 (Pa. 2007). See 

Foflygen v. Allegheny General Hospital, 723 A.2d 705, 708 (Pa. Super. 
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1999) (“[Evidentiary] rulings must be shown to have been not only 

erroneous but also harmful to the complaining part[y].”).

Instantly, as indicated above, evidence was presented that Father 

smoked marijuana on a daily basis, including while the Children were in his 

care. N.T., 6/1/16, at 42. Father himself admitted to having smoked 

marijuana within two and one-half to three weeks of the custody/relocation 

hearing. Id. at 235, 262. Moreover, Father had not completed a drug and 

alcohol evaluation as court-ordered.10 Id. at 234-235, 260-262.

As to Father’s anger and abusive behavior, evidence was presented 

regarding incidents involving Father’s outbursts and threatening behavior, 

including those directed to and in the presence of the Children and involving 

firearms. Id. at 33-34, 38-41. In addition, Father had not completed anger 

management, as court-ordered.11 Id. at 233-234, 257-259. As such, there 

was sufficient evidence with regard to Father’s drug use and anger that the 

post-hearing evidence regarding drug test results and a PFA was merely 

____________________________________________

10

 By order dated March 15, 2016, and entered March 18, 2016, 

incorporating the recommendations of the custody conciliation conference, 

Father was directed to submit himself to Catholic Social Services for a drug 

and alcohol evaluation and follow all recommendations for treatment. Order, 

3/18/16, Recommendation, ¶2.

11

 Also by order entered March 18, 2016, Father was instructed to attend 

family counseling focusing on anger management at Catholic Social Services 

for consecutive weeks. Order, 3/18/16, Recommendation, ¶1.
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cumulative and was not prejudicial, thereby rendering any error harmless. 

Thus, Father’s claim fails.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/5/2017