J-S13014-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 E.B., IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v. C.R. AND J.R., Appellees No. 1609 WDA 2014

Appeal from the Order September 2, 2014 In the Court of Common Pleas of Bedford County Civil Division at No(s): CP-05-CV-936-2009

BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J. MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 17, 2015 E.B., maternal grandmother (“Grandmother”), appeal s from the order, dated September 2, 2014, that awarded C.R. (“Mother ”) legal and primary physical custody of her three minor children, L.R. (born in September of 1999), B.R. (born in June of 2001), and G.R. (born in April of 2006) (collectively the “Children”). 1 We vacate and remand. In a memorandum opinion filed on November 1, 2012, the trial court provided an extensive history of this matter that b egan in August of 2009. The order that accompanied the November 1, 2012 opi nion awarded Grandmother legal and primary physical custody of t he Children with Mother having partial custody one weekend a month and such other times as agreed

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1 Although J.R. (Father) is named in the caption, it does not appear that he has participated in the litigation that resulted in this appeal.J-S13014-15

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upon by the parties. That custody arrangement rema ined in place, until the order presently on appeal was entered. On Septembe r 13, 2013, Mother petitioned for a custody modification. Following a number of continuances, a hearing was held on June 30, 2014, at which time Mo ther testified about her present circumstances. No one else testified and, at the conclusion of the

June 30 th hearing, the court scheduled another hearing for O ctober 24, 2014, to receive additional testimony. Specificall y, the order scheduling the next hearing also provided that: 2. In the interim and pending further Order of Cou rt, the Court’s Order of November 1, 2012 shall continue in full fo rce and effect. 3. Effective September 1, 2014, [Mother] shall hav e primary physical custody of the minor children, ... provided that she obtains a residence with three bedrooms. Order, 6/30/14. In an opinion entered by the court on October 16, 2014, the court explained its reasons for issuing the June 30, 2014 order, stating: The Court[’s] decision was based on the testimony t aken on June 30, 2014, and as a result of the information obtain ed in the Court's previous hearing in this matter[,] which re sulted in an order being entered on November 1, 2012. That orde r left custody of the children with [Grandmother]. In the Memorandum Opinion filed with the [November 1, 2012 ] order, the Court noted [Mother] had a strong bond with her children and had achieved a degree of stability in her life. Further, if this stability continued it would be appropriate to awar d her custody. At the conclusion of the hearing on June 30, 2014[, ] it was clear [Mother] had remained stable and had maintained her bond with the [C]hildren. [Mother] had maintained regular em ployment, had obtained her Associate's Degree in Accounting, [and] continued to reside with the same companion she had in 2012. That companion continued to be employed on a full t ime basis.J-S13014-15

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... Based on this information the Court as noted abo ve entered the June 30, 2014 order. At the October 24, 2014 h earing[,] the Court expected to receive further testimony from th e parties prior to entering another opinion and order in the case. The Court believed it had authority to enter the interi m order pursuant to PRCP 1915.3 relating to special relief and those cases that hold that custody may be modified withou t proof of a substantial change of circumstances where modificat ion is in the child's best interest. McMillen v. McMillen , 602 A.2d 845 (Pa 1992). Of course, the parties’ due process rights must be honored, so the court ordered [an] additional heari ng so that testimony could be presented. Choplosky v. Choplosky , 584 A.2d 340 (Pa Super 1990). As of the June 30, 2014 hearing[,] there was ample evidence to support the Mother's re quest for an interim modification of custody. Th[e] intention w as to transfer physical custody and then take further hearing to d etermine if the Defendant/Mother[’s] retaining primary physical custody was in the [C]hildren's best interest. The current cus tody act permits relocation if approved by the Court. 23 Pa.C.S.A. § 5337(b)(2). Trial Court Memorandum Opinion, 10/16/14, at 1-2. On August 14, 2014, Grandmother filed a “motion fo r determination of finality” with regard to the June 30, 2014 order, a nd the court granted the motion by order dated September 2, 2014. In a sepa rate order also entered on September 2, 2014, the court indicated that Moth er had complied with the June 30, 2014 order and, therefore, she was awa rded legal and primary physical custody of the Children. On September 30, 2014, Grandmother filed a timely notice of appeal and a statement of errors complained of on appeal p ursuant to Pa.R.A.P. 1925(a)(2)(i). She raises the following issues for our review: I. Whether the trial court erred in making a final order of custody which transferred primary physical custody of the minor children without considering the 16 custody factors outlined in 23 Pa.C.S.A. § 5328(a) and making such determinatio n prior to full hearing on the matter?J-S13014-15

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II. Whether the trial court erred in making a fina l order allowing relocation of the children to another state without consideration of the required factors for relocation and making s uch determination prior to full hearing on the matter? Grandmother’s brief at 4. With regard to custody matters, our scope and stan dard of review are

as follows: [O]ur scope is of the broadest type and our standar d is abuse of discretion. This Court must accept findings of the trial court that are supported by competent evidence of record, as o ur role does not include making independent factual determinatio ns. In addition, with regard to issues of credibility and weight of the evidence, this Court must defer to the trial judge who presided over the proceedings and thus viewed the witnesses first hand. However, we are not bound by the trial court’s dedu ctions or inferences from its factual findings. Ultimately, the test is whether the trial court’s conclusions are unreasona ble as shown by the evidence of record. We may reject the concl usions of the trial court only if they involve an error of law, o r are unreasonable in light of the sustainable findings o f the trial court.

E.D. v. M.P. , 33 A.3d 73, 76 (Pa. Super. 2011) (quoting A.D. v. M.A.B. , 989 A.2d 32, 35-36 (Pa. Super. 2010)). The primary concern in any custody

case is the best interests of the child. The best- interests standard, decided on a case-by-case basis, considers all factors that legitimately have an effect upon the child’s physical, intellectual, moral, and spiritual well-being.

Saintz v. Rinker , 902 A.2d 509, 512 (Pa. Super. 2006) (citing Arnold v.

Arnold , 847 A.2d 674, 677 (Pa. Super. 2004)). Grandmother’s first argument centers on the trial c ourt’s failure to conduct a full hearing and then transferring custod y to Mother withoutJ-S13014-15

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considering the custody factors set forth in 23 Pa. C.S. § 5328(a). Section 5328(a) provides: In ordering any form of custody, the court shall de termine the best interest of the child by considering all relev ant factors, giving weighted consideration to those factors whic h affect the safety of the child, including the following: (1) Which party is more likely to encourage and per mit frequent and continuing contact between the child and anothe r 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 wh ich party can better provide adequate physical safeguards and sup ervision of the child. (3) The parental duties performed by each party on behalf of the child. (4) The need for stability and continuity in the ch ild'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, base d on the child's maturity and judgment. (8) The attempts of a parent to turn the child agai nst 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 chil d adequate for the child's emotional needs. (10) Which party is more likely to attend to the da ily physical, emotional, developmental, educational and special n eeds of the child. (11) The proximity of the residences of the parties

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(12) Each party's availability to care for the chil d 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 an other. A party's effort to protect a child from abuse by ano ther party is not evidence of unwillingness or inability to coope rate with that party. (14) The history of drug or alcohol abuse of a part y or member of a party's household. (15) The mental and physical condition of a party o r member of a party's household. (16) Any other relevant factor. 23 Pa.C.S. § 5328(a). “ All of the factors listed in section 5328(a) are required to be considered by the trial court when e ntering a custody order.”

J.R.M. v. J.E.A. , 33 A.2d 647, 652 (Pa. Super. 2011) (emphasis in o riginal). Moreover, “[c]ustody hearings should be comprehensi ve; all witnesses who

can contribute should be heard.” Bednarek v. Velazquez , 830 A.2d 1267, 1270 (Pa. Super. 2003). Because the trial court did not expressly consider the section 5328(a) best interests factors, it committed an error of la w. Likewise, having recognized that additional testimony would be forth coming at the hearing scheduled for October 24, 2014, the court committed an error of law in granting Grandmother’s finality motion. For these reasons, we must vacate the order granting custody to Mother and remand for a hearing to allow for a comprehensive examination of all witnesses involved . Thereafter, the courtJ-S13014-15

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is required to expressly consider all section 5328( a) factors to arrive at its custody decision. Its opinion should contain a dis cussion of the sixteen best interests factors. Additionally, because this case appears to implicate the relocation factors set forth at 23 Pa.C.S. § 5337(h ), in light of the Children’s possible move from Pennsylvania to New Jersey, the court must consider

those factors as well. See D.K. v. S.P.K. , 102 A.3d 467, 474 (Pa. Super, 2014). Upon completion of the hearing and the court ’s decision with accompanying opinion, either party may file a new a ppeal, if necessary.

Order vacated. Case remanded. Jurisdiction relin quished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/17/2015