J-A04030-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

A.D.W., IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

L.A.K.,

Appellee No. 1232 WDA 2014

Appeal from the Order entered July 14, 2014, 

in the Court of Common Pleas of Jefferson County, 

Civil Division, at No(s): 560-2013 C.D.

A.D.W., IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

L.A.K.,

Appellee No. 1464 WDA 2014

Appeal from the Order entered August 28, 2014, 

in the Court of Common Pleas of Jefferson County, 

Civil Division, at No(s): 560-2013 C.D.

BEFORE: BOWES, OLSON, and STRASSBURGER*, JJ.

MEMORANDUM BY OLSON, J.: FILED APRIL 10, 2015

A.D.W. (“Mother”) appeals from the order entered July 14, 2014 

(“relocation order”), which denied Mother’s petition to relocate with J.T.W. 

(“Child”) (born in July of 2013), to Oahu, Hawaii, and granted, in part, and 

 

* Retired Senior Judge specially assigned to the Superior Court.
J-A04030-15

- 2 -

denied, in part, Mother’s petition to modify L.A.K.’s (“Father”) schedule of 

partial custody, directing the parties to submit a proposed stipulation, or 

their proposals for partial custody, under the Child Custody Act, (“the Act”), 

23 Pa.C.S.A. §§ 5321-5340.1 Mother also appeals from the order entered 

August 28, 2014 (“custody order”), which awarded shared legal custody of 

Child to Mother, and awarded primary physical custody to Mother, with 

partial physical custody for Father, in Pennsylvania, in accordance with a 

schedule set forth in the order.2 We affirm the orders on appeal.

In its opinion entered on July 14, 2014, the trial court ably set forth 

the factual and procedural background of this appeal, which we incorporate 

herein. Mother and Father were never married. Mother resides with her 

mother, K.W., (“Maternal Grandmother”), and Child in Maternal 

Grandmother’s home in Falls Creek, Jefferson County, Pennsylvania. Father 

resides in a bed and breakfast (“B & B”) that he purchased in his own name, 

with Mother indebted on the note instrument, in Akron, Lancaster County, 

Pennsylvania. The driving distance between the parties’ homes in 

Pennsylvania is three and one-half hours. Mother previously was employed 

by Chanel, and wishes to relocate to Hawaii with Child so that she may take 

another employment position with Chanel. Mother wishes to live in a 

 

1

 Mother’s appeal of the relocation order was docketed at 1232 WDA 2014.

2

 Mother’s appeal of the custody order was docketed at 1464 WDA 2014. 

On October 3, 2014, this Court, acting sua sponte, consolidated both 

actions. 
J-A04030-15

- 3 -

residential area, Kailua, on the island of Oahu. Father is employed 

managing his B & B.

On July 9, 2013, Mother filed a complaint for custody. On that same 

date, the trial court entered an order, ex parte, as part of a scheduling 

order, awarding Mother sole legal and physical custody, subject to Father’s 

supervised partial custody/visitation in Jefferson County, at Mother’s 

discretion, pending further order of court. Moreover, on July 9, 2013, the

trial court scheduled a conciliation conference to occur on September 4, 

2013. On September 4, 2013, the parties filed a stipulation, and the trial 

court entered an interim order that provided for shared legal custody, with 

primary physical custody in Mother, and specified partial custody/visitation 

in Father.

On September 5, 2013, the trial court entered an order scheduling a 

mediation conference to occur on December 27, 2013, and, on September 

11, 2013, re-scheduled the mediation conference to occur on December 12, 

2013.

On January 8, 2014, the trial court scheduled the custody trial to 

commence on April 17, 2014. On January 30, 2014, Father filed a counteraffidavit to Mother’s proposed relocation with Child. Mother filed a notice of 

proposed relocation, affidavit of service, and counter-affidavit regarding 

relocation on January 31, 2014. On February 10, 2014, Father filed a 

petition for contempt and special relief, alleging Mother was in contempt of 
J-A04030-15

- 4 -

the September 4, 2013 order, and a certificate of service of counter-affidavit 

regarding relocation. On February 19, 2014, the trial court entered an order 

providing that the court would hear all matters regarding the petition for 

contempt and special relief at the scheduled custody trial. On April 3, 2014, 

the trial court amended the February 19, 2014 order to reflect the proper 

date of the scheduled custody trial. 

On April 4, 2014, Father filed a petition for contempt, seeking to have 

Mother held in contempt of the February 19, 2014 order. On April 8, 2014, 

the trial court entered an order directing that the court would entertain the 

contempt petition at the scheduled custody trial on April 17, 2014.

On April 15, 2014, Mother filed a petition to permit relocation and 

modify Father’s schedule of partial custody/visitation. Father filed an answer 

to Mother’s complaint for custody on April 17, 2014, along with an answer to 

the petition to permit relocation and modify Father’s scheduled partial 

custody/visitation. 

On April 17, 2014, the trial court held the custody trial. At the trial, 

Mother testified on her own behalf. Next, she presented the testimony of 

H.B., her cousin. N.T., 4/17/2014, at 123-124. Mother also presented the 

testimony of T.G., a friend of her family, and C.J.J., her uncle. Id. at 139, 

148. Finally, Mother presented the testimony of Maternal Grandmother. Id.

at 152. Mother and Father had the court admit a number of documentary 

exhibits.
J-A04030-15

- 5 -

After the custody trial on April 17, 2014, the trial court ordered that 

the custody trial would continue on May 27, 2014, and entered a temporary 

order to remain in effect until continuation of the custody trial on May 27, 

2014.

On May 23, 2014, Father filed a petition for contempt, seeking to hold 

Mother in contempt of the April 17, 2014 order. On May 27, 2014, the trial 

court entered an order providing that it would entertain the petition at the 

custody trial on that same date.

At the custody trial on May 27, 2014, Father presented, via telephone, 

the testimony of his mother, N.H. (“Paternal Grandmother”). N.T., 

5/27/2014, at 6. Next, Father presented the testimony of his stepfather, 

E.H.; his half-brother, J.H.; and his brother, W.K. Id. at 37-38, 45-46, 63-

64. Mother and Father had the court admit a number of documentary 

exhibits.

At the close of the record at the May 27, 2014 custody trial, Father 

agreed to withdraw the petition for contempt filed on May 23, 2014. N.T., 

5/27/2014, at 189, 196. With regard to the motion for contempt filed on 

February 10, 2014, the trial court declined to find Mother in contempt and 

impose sanctions. Id. at 196-199. With regard to the motion for contempt 

filed on April 4, 2014, the trial court ruled that Mother was in contempt of 

the February 19, 2014 order for failing to provide a copy of her work 

schedule to Father, but did not impose any sanctions on her. Id. at 199. 
J-A04030-15

- 6 -

On May 28, 2014, the trial court entered an order, directing the parties 

to file briefs with the court by June 10, 2014, and further providing Father 

shall have partial custody of Child, and Mother may return with Child to 

Hawaii, subject to further orders of the court.

On July 8, 2014, Father filed a petition to hold Mother in contempt of 

the May 28, 2014 order. On July 9, 2014, the trial court entered an order 

scheduling a hearing on the petition for August 28, 2014.

On July 14, 2014, the trial court entered an order denying Mother’s 

petition for relocation. In the relocation order, the trial court also granted 

Mother’s motion to modify Father’s visitation schedule in part, and denied it 

in part. The relocation order provided as follows:

(a) [Mother’s] Petition to Permit Relocation is DENIED.

(b) [Mother’s] Petition to Modify [Father’s] Schedule of Visitation 

is granted in part and denied in part.

(1) Said Petition is DENIED as to any modification of 

custody and partial custody status. The parties shall continue to 

have shared legal custody of the minor child, [Child] . . ., with 

Mother . . . having primary physical custody and Father . . . 

having partial physical custody of said minor child.

(2) The parties shall submit to the [c]ourt a proposed 

stipulation or their proposals for a schedule of partial custody 

away from the home of [] Mother on a regular basis and with 

sufficient frequency and duration as to foster a bond and a 

comfort level between Father and [C]hild. Said proposals shall 

be submitted to the [c]ourt by July 25, 2014 and the [c]ourt 

shall enter an [o]rder setting said schedule and conditions. In 

the event that neither a stipulation nor proposals are received, 

the [c]ourt shall enter an appropriate [o]rder by August 1, 2014. 

Trial Court Order, 7/14/2014.
J-A04030-15

- 7 -

In the trial court’s July 14, 2014 opinion, the trial court found that 

Mother has substantial debts because she did not have insurance to cover 

Child’s birth, and that employment will be important to help her pay off the 

debt. The trial court also found that Mother is unable to obtain a bank loan 

because she signed onto a mortgage with Father on the B & B with a balance 

due of over $300,000 (although Mother’s name is not on the deed). 

Moreover, Father cannot re-mortgage the B & B to clear the debt from 

Mother’s name. The trial court also found that Father is behind on his 

payments on the mortgage secured by the B & B. The court concluded that, 

if Child is permitted to relocate to Hawaii, Father would be financially unable 

to travel to Hawaii on a frequent basis sufficient to maintain a bond with 

Child. Trial Court Opinion, 7/14/2014, at 3-4.

On July 25, 2014, Mother filed a notice of appeal and a concise 

statement of errors complained of on appeal, pursuant to Pa.R.A.P. 

1925(a)(2)(ii) from the relocation order entered on July 14, 2014. See

1232 WDA 2014. On August 13, 2014, Father filed a petition in this Court 

seeking to quash the appeal. On September 12, 2014, this Court denied 

Father’s petition without prejudice.

In the meantime, on August 26, 2014, Father filed a petition for 

special relief in the trial court, seeking, inter alia, the immediate return of 

Child to Pennsylvania, extended periods of partial custody, and attorney’s 
J-A04030-15

- 8 -

fees. On August 27, 2014, Father filed a praecipe to withdraw the petition 

for contempt filed on July 8, 2014.

On August 28, 2014, the trial court filed an order providing that 

Mother and Father shall have shared legal custody of Child; Mother shall 

have primary physical custody; and Father shall have periods of partial 

physical custody in accordance with a schedule set forth in the order. The 

order provided that it supplemented the order entered on July 9, 2014.

On September 5, 2014, Mother filed a notice of appeal and a concise 

statement of errors complained of on appeal from the custody order entered 

on August 28, 2014. See 1464 WDA 2014.

On September 10, 2014, Father filed a petition for contempt, seeking 

to hold Mother in contempt of the August 28, 2014 order. On September 

11, 2014, the trial court entered an order scheduling a hearing on the 

petition to occur on September 18, 2014.

On September 12, 2014, the trial court entered an opinion pursuant to 

Pa.R.A.P. 1925(a) with regard to the appeal from the relocation order 

entered on July 14, 2014.

On September 17, 2014, Mother filed preliminary objections to 

Father’s petition for contempt. After the contempt hearing, on September 

18, 2014, the trial court entered an opinion and order on the petition for 

contempt, finding Mother in contempt of the July 14, 2014 order. On 
J-A04030-15

- 9 -

September 18, 2014, the trial court entered an opinion Pa.R.A.P. 1925(a) 

with regard to the appeal from the August 28, 2014 custody order.3

On September 18, 2014, the trial court entered an opinion pursuant to 

Pa.R.A.P. 1925(a).

On appeal, Mother raises two issues for our review:

I. Whether the trial court erred in concluding that the child’s best 

interests would not be served by allowing a relocation to Hawaii 

that would significantly enhance Mother’s ability to financially 

provide for her child due solely on the geographical distance 

from Father that it would present?

II. Whether the trial court had jurisdiction under the provisions 

of Pa.R.A.P. 1701 to impose an order establishing a partial 

custody schedule for Father after the order denying Mother’s 

request for relocation had been appealed?

Appellant’s Brief, at 8.

In his brief, Father raises the issue of whether this Court should quash 

Mother’s appeal from the order of the trial court entered on July 14, 2014. 

See Father’s Brief, at 13. He argues that Pa.R.A.P. 341, regarding appeals 

from final orders, controls the appeals, and that Mother’s appeal from the 

order entered on July 14, 2014, was not an appeal from a final order. 

 

3 On October 17, 2014, Mother filed a notice of appeal and a concise 

statement of errors complained of on appeal, with regard to the September 

18, 2014 contempt order. See 1701 WDA 2014. On October 29, 2014, this 

Court denied Mother’s motion to consolidate that appeal with the present 

appeals, the appeals from the relocation and custody orders. On January 

28, 2015, the panel of this Court heard oral argument on the present 

appeals. Subsequently, on February 6, 2015, Mother withdrew the appeal at 

1701 WDA 2014.
J-A04030-15

- 10 -

Mother argues in the second issue presented in her brief that she 

properly appealed the order entered on July 14, 2014, and that the trial 

court lacked jurisdiction to enter the August 28, 2014 order under Pa.R.A.P. 

1701, which generally prohibits the trial court from proceeding further in a 

matter that is on appeal. She asserts that the trial court’s imposition of a 

schedule of partial custody to be exercised in Pennsylvania, with which she 

could not comply while residing in Hawaii, did not preserve her rights on 

appeal, as required by Pa.R.A.P. 1701(c). Mother argues that, as a result of 

her appeal from the July 14, 2014 order, the trial court had no jurisdiction to 

enter the August 28, 2014 order, and erred in entering the order. Mother’s 

Brief at 16. In support of her argument, Mother relies on In re Deed of 

Trust of McCargo, 652 A.2d 1330, 1337 (Pa. Super. 1994), citing Pa.R.A.P. 

1701(a) (holding that a trial court order was improper because, inter alia, it 

was entered after two appeals had been filed from the original order). 

Mother’s Brief, at 23. 

Father responds that the trial court entered the August 28, 2014 order 

as its final order, so the matter is governed by Pa.R.A.P. 341. He asserts 

that Rule 1701 is inapplicable. Father’s Brief, at 13.

The trial court explained its decisions in the August 28, 2014 order as 

follows:

1. In this [c]ourt’s [o]rder of July 14, 2014, the [c]ourt 

stated that it was intending to enter a further [o]rder “setting 

said schedule and conditions” and that if the parties did not 

enter either a stipulation or proposal as to partial custody, the 
J-A04030-15

- 11 -

[c]ourt would enter its [o]rder by August 1, 2014. [Father] filed 

a proposed partial custody schedule. [Mother] did not file a 

proposed partial custody schedule but instead filed an appeal to 

the Superior Court on July 25, 2014. [Father] thereafter filed a 

[m]otion to [q]uash [a]ppeal based upon this [c]ourt’s [o]rder of 

July 14, 2014 not having been a final order of [c]ourt[,] and said 

[m]otion to [q]uash was denied without prejudice by the 

Superior Court on September 12, 2014. Because of the 

[a]ppeal, this [c]ourt did not enter a final order, [sic] on the 

anticipated dated of August 1, 2014. [Father] thereafter filed a 

[p]etition for [c]ontempt and a [p]etition for [s]pecial [r]elief[,] 

and[,] although said [p]etitions were later withdrawn, this 

[c]ourt, realizing that confusion had been created by its July 14, 

2014 Order[,] which had been intended to be an interim order 

awaiting proposals for partial custody, filed its August 28, 2014 

[o]rder which contains detailed conditions as to custody and 

partial custody, in accordance with Pa.R.A.P. 341(b)(1).

2. As stated in Paragraph 1 above, the [o]rder of August 

28, 2014 was filed as a final order of this [c]ourt, the previous 

[o]rder of July [14], 2014 having been an interim order which 

left the parties confused and without direction as to how to 

comply with the partial physical custody awarded to the 

[Father]. The order of [July 14], 2014 not being a final order of 

[c]ourt, Pa.R.A.P. 1701 is not applicable. In the event that said 

Rule is deemed to be applicable, the action that this [c]ourt took 

would have been permitted under § 1701(b)(1) in attempting to 

preserve the status quo and under § 1701(b)(2) in providing the 

detail necessary for enforcement of this [c]ourt’s [o]rder of July 

14, 2014.

Trial Court Opinion, 9/18/2014, at 1-2.

We accept the trial court’s explanation of its intention to enter the July 

14, 2014 order as an interim order, pending a final order on the partial 

custody schedule for Father, which the trial court entered as its final order 

on August 28, 2014. Thus, we agree with the trial court, and Father, that 

Pa.R.A.P. 1701 is not applicable to the trial court’s August 28, 2014 order. 

We find Mother’s appeal from the August 28, 2014 order was filed from a 
J-A04030-15

- 12 -

final order pursuant to Pa.R.A.P. 341 and Pa.R.A.P. 905(a). See G.B. v. 

M.M.B., 670 A.2d 714, 720 (Pa. Super. 1996) (holding that a custody order 

will be considered final and appealable only if it is both entered after the 

court has completed its hearings on the merits, and intended by the court to

constitute a complete resolution of the custody claims pending between the 

parties). Pursuant to Pa.R.A.P. 905(5), “[a] notice of appeal filed after the 

announcement of a determination but before the entry of an appealable 

order shall be treated as filed after such entry and on the day thereof.” 

Pa.R.A.P. 905(5). Here, Mother filed her notice of appeal from the relocation 

order prematurely, because the trial court ordered additional actions to 

transpire before ruling on the custody matter. However, under Rule 905, 

the appeal was perfected upon entry of the custody order on August 28, 

2014. As such, the consolidated appeal is properly before us. 

Thus, we address the merits of Mother’s appeal. Mother contends that 

the trial court erred in concluding that Child’s best interests would not be 

served by allowing Mother to relocate with Child to Hawaii, solely on the 

geographical distance of Hawaii from Father’s home in Pennsylvania. Mother 

claims the relocation would significantly enhance her ability to provide 

financially for Child. Mother argues that she succeeded in carrying her 

burden of proving that she could provide an improved environment for Child 

in Hawaii that would be in Child’s best interest. She asserts that the trial 

court erred in denying her relocation petition based on a concern that Father 
J-A04030-15

- 13 -

would not be able to establish a bond with Child. Mother contends that the 

trial court over-emphasized the logistical problems created by the distance 

over the financial and emotional benefits that would inure to both her and 

Child.

Initially, we observe that, as the custody trial in this matter was held 

in April and May of 2014, the Act, 23 Pa.C.S.A. §§ 5321 to 5340, is 

applicable. C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa. Super. 2012) (holding 

that, if the custody evidentiary proceeding commences on or after the 

effective date of the Act, i.e., January 24, 2011, the provisions of the Act 

apply).

In custody cases, 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.

Id. at 443 (citation omitted).

We have stated: 

[t]he discretion that a trial court employs in custody matters 

should be accorded the utmost respect, given the special nature 

of the proceeding and the lasting impact the result will have on 
J-A04030-15

- 14 -

the lives of the parties concerned. Indeed, the knowledge 

gained by a trial court in observing witnesses in a custody 

proceeding cannot adequately be imparted to an appellate court 

by a printed record. 

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

Regarding the definition of an abuse of discretion, this Court has 

stated: “[a]n abuse of discretion is not merely an error of judgment; if, in 

reaching a conclusion, the court overrides or misapplies the law, or the 

judgment exercised is shown by the record to be either manifestly 

unreasonable or the product of partiality, prejudice, bias or ill will, discretion 

has been abused.” Bulgarelli v. Bulgarelli, 934 A.2d 107, 111 (Pa. Super. 

2007) (quotation omitted).

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

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

5338 of the Act provides that, upon petition, a trial court may modify a 
J-A04030-15

- 15 -

custody order if it serves the best interests of the child. 23 Pa.C.S.A. 

§ 5338. Section 5328(a) of the Act, 23 Pa.C.S.A. § 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).4 Section 5337(h) sets forth the 

relocation factors that a trial court must consider when ruling on a relocation 

petition.

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 in the best interest of the child:

(1) Shared physical custody.

(2) Primary physical custody.

(3) Partial physical custody.

(4) Sole physical custody.

(5) Supervised physical custody.

(6) Shared legal custody.

(7) Sole legal custody.

23 Pa.C.S.A. § 5323.

 

4 The trial court considered the best interest factors in its opinion filed on 

July 14, 2014. See Trial Court Opinion, 7/14/2014, at 5-7. Effective 

January 1, 2014, the statute was amended to include an additional factor at 

23 Pa.C.S.A. § 5328(a)(2.1) (providing for consideration of child abuse and 

involvement with child protective services). Although applicable at the time 

of trial in the present matter, there was no evidence presented that would 

have required the trial court’s consideration of this factor. 
J-A04030-15

- 16 -

Where a parent requests to relocate with a child, the trial court must 

consider the following ten 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.
J-A04030-15

- 17 -

(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); see E.D., 33 A.3d at 81-82 (“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.”); see also D.K. v. S.P.K., 102 A.3d 467, 477-78 (Pa. Super. 2014) 

(holding that trial court is to consider Section 5337(h) factors only where 

parent is relocating with child). 

Moreover, “[w]hen 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).

Here, the trial court found the following with regard to the relocation 

factors:

(1) Child has had an almost exclusive relationship with Mother 

and her family since the birth of [C]hild [in] July [] 2013. 

Mother is nurturing, loving and responsive to all of [C]hild’s 

routine needs and [C]hild is bonded with her. [C]hild has a 

similar relationship with the maternal grandmother.

(2) [C]hild is only one year old and is normal in development 

and is a baby in need of the care a baby must be given. As of 

the date of the hearing he was still being breast fed as well as 
J-A04030-15

- 18 -

being given solid foods. [C]hild being an infant, there is no 

indication of what impact relocation would have on him other 

than to deprive him of the relationship with Father and with 

extended family of both Mother and Father. For the next four 

years his educational needs could be met at Falls Creek, Akron 

or Kailua. The [c]ourt has no evidence of the quality of schools, 

only their availability, from kindergarten on into the future.

(3) Considering the logistics of transporting a one-year old child 

between Hawaii and Lancaster County on a twelve hour flight at 

a cost of well over a thousand dollars, it would be a formidable 

task for the parties to preserve the relationship between Father 

and [C]hild, or, if custody were to be awarded to Father, 

between Mother and [C]hild. This is especially true when Father 

has serious financial problems, is late on mortgage payments 

and may have to close the business he owns and earn his 

income from new ventures with which he is experimenting. 

Although Mother’s financial situation would improve in Hawaii, 

she is at present a creditor [sic] on a large debt out of Father’s 

B&B and could not afford frequent trips.

(4) [C]hild is unable to express a preference.

(5) There is an established pattern of conduct on the part of 

Mother to thwart the relationship of [C]hild with Father[.]

(6) The relocation will enhance the general quality of life for 

Mother financially and in her career as well as emotionally in 

having a satisfying, challenging position and being in a 

stimulating, progressive environment.

(7) At this stage of his development the relocation would not 

have an effect on [C]hild’s general quality of life. Emotionally, 

he is dependent on his family and caregivers, not on the outside 

environment. Financially, at an unpredictable time in the future 

if Mother is successful in her career, he could benefit from 

enhanced opportunities derived from her income.

Educationally, it would be a matter of years before this could be 

determined and this [c]ourt does not have evidence as to what 

his educational situation may be when he reaches the age for 

attendance at grade school or even pre-school.

(8) Mother’s motivation and reasons for wishing to relocate are 

genuine in her desire to better her situation and enhance her 
J-A04030-15

- 19 -

career. It is also evident that she has a keen desire, evidenced 

by her and her family’s conduct to date, to prevent Father from 

exercising his rights to parent [C]hild.

(9) There is no risk of harm to [C]hild of any abuse from either 

party.

(10) Another relevant factor is that in Hawaii Mother is obligated 

to travel extensively in her work and setting a schedule for 

partial custody would be difficult. In addition, she proposes that 

[Maternal Grandmother] would be making frequent trips and 

could bring [C]hild to Pennsylvania for partial custody periods 

with Father. [Maternal Grandmother’s] hostile conduct with 

Father makes it impossible for her to be the facilitator of 

transfers of [C]hild between the parents.

Trial Court Opinion, 7/14/2014, at 7-8.

The trial court offered the following reasons for denying Mother 

permission to relocate with Child:

As to the award of custody, itself, the [c]ourt is aware that the 

factors weigh heavily in favor of Mother partially because of her 

being successful in preventing Father from fulfilling his paternal 

role. The negative conduct of Mother in the analysis of the 

factors is significant but the positive factors outweigh the 

negative when the decision of the [c]ourt has to be whether to 

remove [C]hild from Mother’s care and place him in the care of 

[F]ather whom he scarcely knows and who has had no 

experience caring for him. To hold Mother accountable for her 

behavior would be at the expense of a baby whom the [c]ourt 

cannot in good conscience snatch away from the only parent 

with whom he feels secure, comfortable and with whom he has a 

strong bond. Mother’s obstinacy and defiance should not be 

rewarded but the baby cannot be made the victim. Mother 

should not feel a sense of empowerment over having been 

awarded custody but she must, instead, realize that she will not 

be permitted in the future to treat Father as an interloper nor 

shall she stand by to let her family rebuff his legitimate efforts to 

be a father to his child.

As to relocation, an analysis of the factors reveal[s] that Mother 

has a valuable opportunity to better herself in moving to Hawaii, 

as discussed above. In her testimony she revealed her plan for 
J-A04030-15

- 20 -

providing Father with frequent and meaningful periods of partial 

custody if the [c]ourt would grant relocation. The crux of her 

plan was that [Maternal Grandmother] would be travelling back 

and forth frequently between Pennsylvania and Hawaii and could 

bring [C]hild to spend time with Father. Unfortunately, 

testimony from a number of witnesses established that 

[M]aternal [G]randmother is incapable of taking on that task 

because of her unwarranted treatment of Father and her 

determination to limit visitations and to make Father

uncomfortable at visits. Mother abetted such behavior on the 

part of [Maternal Grandmother] and, also, made it clear that 

she, herself, hoped to exclude Father as much as possible from 

[C]hild’s life. From the moment that she refused to name Father 

on[C]hild’s birth certificate, an action normally taken only when 

a father is unknown, to the times when she refused to 

communicate in any way, and refused to even see the father on 

his visits even though she was surrounded by friends and family 

who could prevent any misbehavior by Father, she has made it 

clear that being as far away from Father as possible would be an 

ideal situation for her. Despite the factors which show the 

benefits to Mother of relocation, those factors are outweighed by 

[f]actors (3), (5) and (10). The [c]ourt cannot permit a 

relocation which would deprive [C]hild of a relationship with 

[F]ather. At the age of one, [C]hild would have to see [F]ather 

frequently enough that [F]ather would not be a stranger. 

Otherwise, it would cause fear and be traumatic for [C]hild to be 

dropped off at distant intervals to be with a stranger, his father. 

The [c]ourt could have worked out partial custody in this case 

and could have permitted relocation if Mother had shown her 

willingness to let Father be a father and could be capable of 

paying the costs of monthly visits of Father to Hawaii in months 

when she could not transport [C]hild to Pennsylvania. That not 

being the case, the court finds that relocation would end any 

genuine paternal relationship between Father and [Child].

Trial Court Opinion, 7/14/2014, at 7-9.

Mother concedes that there is no evidence in the record that she could 

afford to pay Father’s costs to travel to Hawaii to see Child. Mother states 

that, in fact, the trial court, on September 18, 2014, entered an order on 

Father’s contempt petition, which imposed a sanction on her for violating the 
J-A04030-15

- 21 -

order entered on July 14, 2014. Mother’s Brief, at 21. In the contempt 

order, the trial court directed Mother to pay the costs of transporting Father 

to Hawaii every six weeks, and to pay for his lodging for five days during his 

stay while the matter is on appeal.5 Id. Mother suggests that the trial 

court’s sanction confirms that a schedule of partial custody could be worked 

out which would allow her to relocate with Child to Hawaii, and that there 

should be shared transportation costs. Id. Mother contends that the trial 

court’s failure to envision a schedule of partial custody that required Father 

to travel to Child in Hawaii ignored the real benefits provided to Mother and 

Child from the proposed move to Hawaii, and that the move is in Child’s best 

 

5 Specifically, in its Memorandum Opinion of September 18, 2014, the trial 

court found as follows:

Mother has not followed the [trial court’s partial custody o]rder 

[of July 14, 2014] because she has not provided any partial 

custody whatsoever. ... Mother is clearly in violation of this ... 

[o]rder to provide [F]ather with partial custody. At the custody 

hearing, [M]other testified that she or [Maternal Grandmother] 

would return to Pennsylvania [from Hawaii] on a frequent basis 

and would bring [C]hild to visit [F]ather. In the four months 

since the custody hearing, [M]other has not followed through 

with her proposal for providing a remedy to the partial custody 

dilemma caused by her relocation.

Trial Court Memorandum Opinion, 9/18/14, at 1-2. Thus, the trial 

court ordered that “[a]s a sanction, [Mother] shall pay the reasonable 

travel and lodging expense[s] for [Father] to be able to visit [Child] in 

Hawaii at least once every six weeks until a decision is rendered by the 

Superior Court [in this appeal].” Order, 9/18/14. At oral argument, 

counsel for the parties advised this Court that, as of the date of the 

argument, Mother was still living in Hawaii with Child. Nothing in the 

certified record indicates whether or not Mother has complied with the 

trial court’s September 18, 2014 order by paying Father’s expenses to 

visit Child in Hawaii.
J-A04030-15

- 22 -

interest. Id. at 21-22. In support of her argument, Mother cites cases that 

pre-date the enactment of the relocation factors. In her reply brief, Mother 

argues that the trial court’s conclusions regarding factors (3), (5), and (10), 

as set forth at Section 5337(h), were not supported by the evidence of 

record, and that it was unreasonable for the trial court to speculate, in 

reviewing factor (8), that she had some ulterior motive in wanting to take 

the position in Hawaii.

After a careful review of the record, we find that the trial court’s 

conclusion, regarding factor (8) of Section 5337(h), that “[i]t is also evident 

that Mother has a keen desire, evidenced by her and her family’s conduct to 

date, to prevent Father from exercising his rights to parent the child[,]” is 

supported by the evidence in the record. There was ample, competent 

evidence in the record upon which the trial court could have properly 

supported its conclusion that Mother and her family were behaving to 

obstruct Father’s partial custody time with Child. We find no basis upon 

which to disturb the trial court’s denial of relocation in this matter, and its 

order of partial physical custody for Father in Pennsylvania. C.R.F. v. 

S.E.F., 45 A.3d at 443.

To the extent that Mother refers to the trial court’s September 18, 

2014 order finding her in contempt, we remind Mother that the order 

imposed a sanction on Mother to provide for Father to exercise his partial 

physical custody rights in Hawaii “until a decision is rendered by the Superior 
J-A04030-15

- 23 -

Court.” Trial Court Order, 9/18/14.6 As we are affirming the trial court’s 

orders denying relocation and providing for Father to exercise partial custody 

in Pennsylvania, we emphasize that Mother must abide by the orders of the 

trial court, as “[e]ach court is the exclusive judge of contempts against its 

process.” See Garr v. Peters, 773 A.2d 183, 189 (Pa. Super. 2001).

Orders affirmed. 

Judge Bowes joins this memorandum.

Judge Strassburger files a Concurring and Dissenting Memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/10/2015

 

6 The September 18, 2014 order sanctioning Mother is in the certified record 

before this Court, as it was entered the same day as the trial court’s Rule 

1925(a) opinion. As noted, supra, Mother has withdrawn her separate 

appeal from the September 18, 2014 contempt order, so the order is not 

before this Court for a ruling. However, this Court will not permit Mother to 

both withdraw her appeal and use the order to bolster her argument. Thus, 

we have reviewed the September 18, 2014 contempt order as part of our 

review of the certified record, and we clarify for Mother that she must now 

comply with the July 14, 2014 relocation order and August 28, 2014 custody 

order, as we have affirmed them.