J. A10041/17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

M.J., :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

 Appellant :

:

v. : No. 3177 EDA 2016

:

S.G.B. :

Appeal from the Order, September 9, 2016,

in the Court of Common Pleas of Monroe County

Civil Division at Nos. 1832 CV 2014, 260 DR 2014

BEFORE: DUBOW, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 14, 2017

M.J. (“Father”) appeals from the September 9, 2016 order entered in 

the Court of Common Pleas of Monroe County permitting S.G.B. (“Mother”) 

to relocate with the parties’ minor son, A.G.J. (“Child”), from Monroe 

County, Pennsylvania, to Havertown Township, Delaware County, 

Pennsylvania. The order also awarded shared legal custody to the parties, 

primary physical custody during the school year to Mother, and primary 

physical custody during the summer to Father. After careful review, we

affirm.

The record reflects that Child was born to the parties out of wedlock in 

March 2009. At the time of Child’s birth, Mother and Father lived together, 

but then separated in 2010. Since their separation, Mother and Father have 

equally shared physical custody of Child, having initially “created a 50-50 on 
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paper.” (Notes of testimony, 8/26/16 at 8.) Thereafter, on June 18, 2014, 

Mother and Father entered into a custody stipulation for shared legal and 

physical custody of Child. The trial court approved the parties’ custody 

stipulation by order of the same date. (Order of court, 6/18/14.) 

The trial court set forth the subsequent procedural history as follows:

On May 2, 2016, Mother filed an Affidavit for 

Relocation (“Relocation”) seeking primary physical

custody of [Child]. After Mother filed her Relocation, 

Father filed a Counter-Affidavit opposing the 

relocation and requesting Modification. We held an 

evidentiary hearing on August 26, 2016. On 

August 29, 2016, we issued an Order and a 

subsequent Opinion on September 9, 20[1]6, 

granting Mother’s request to relocate to Havertown 

Twp. Father filed a Notice of Appeal on 

September 27, 2016. Father filed his Appeal as a 

Children’s Fast Track Appeal and included his Concise 

Statement of Errors Complained of on Appeal –

Pa.R.A.P. 1925(a)(2).

Trial court opinion, 10/7/16 at 1. The record further reflects that the trial 

court filed its Rule 1925(a) opinion on October 7, 2016.

On appeal, Father raises the following issues:

[1.] Did the trial court commit an error of law 

and/or abuse its discretion when denying 

Father’s petition for primary physical custody?

[2.] Did the trial court commit an error of law 

and/or abuse its discretion when it granted 

Mother’s relocation to Havertown?

[3.] Did the trial court commit an error of law 

and/or abuse its discretion when it failed to 

consider evidence contrary to relocation?

Father’s brief at 13 (capitalization omitted).
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Under the Child Custody Act (“the Act”), 23 Pa.C.S.A. §§ 5321-5340, 

our standard of review in custody cases 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) (citation omitted).

Moreover, we reiterate that

[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 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) (citation omitted).

With respect to an abuse of discretion, it is well settled that 

[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.
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Bulgarelli v. Bulgarelli, 934 A.2d 107, 111 (Pa.Super. 2007) (quotation 

marks omitted).

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

is the best interests of the child. 23 Pa.C.S.A. §§ 5328, 5338. Section 5323 

of the Act provides for the following types of custody awards:

(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(a)(1)-(7).

Section 5338 of the Act provides that, upon petition, a trial court may 

modify a custody order when it serves the best interests of the child. 

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

that the trial court must consider when determining custody and 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 
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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.

(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.
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(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.
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23 Pa.C.S.A. § 5328(a)(1-16). Trial courts are required to consider “[a]ll of 

the factors listed in section 5328(a) . . . when entering a custody order.” 

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

Where a request for relocation of a child along with a parent is 

involved, the Act requires the trial court to consider the following ten 

relocation factors:

(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.
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(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.

(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). “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.” E.D. v. M.P., 33 A.3d 73, 

81-82 (Pa.Super. 2011). Additionally, “[w]hen a custody dispute involves a 
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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) (citation omitted).

We have further explained that:

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., 2013 PA Super 92, 65 A.3d 946, 955 

(Pa.Super. 2013), appeal denied, 620 Pa. 727, 70 

A.3d 808 (Pa. 2013). . . .

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., 2013 PA Super 40, 63 A.3d 331, 

336 (Pa.Super. 2013), appeal denied, [620 Pa. 

710], 68 A.3d 909 (2013). A court’s explanation of 

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) (brackets in original).

Similarly, with regard to relocation, we have concluded that:

sections 5323(d) and 5328 require the trial court to 

set forth its ratio decidendi at or near the time it 

issues its decision in a custody proceeding. We have 

held that, because the best interests of the child are 

the paramount concern of any custody case, the trial 

court must address the sixteen best interest factors 
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of section 5328(a) and the ten relocation factors of 

section 5337(h). B.K.M. v. J.A.M., 50 A.3d 168, 

172-75 (Pa.Super. 2012) (finding the trial court 

erred in failing to consider all section 5328(a) and 

section 5337(h) factors). Therefore, by logical 

necessity, today we emphasize that our holding in 

C.B. (i.e., that section 5323(d) requires the trial 

court to delineate its reasoning at or near the time of 

its decision) extends to cases that involve both 

custody and relocation pursuant to section 5337.

A.M.S., 70 A.3d at 835.

Additionally, with regard to relocation, we have held that 

“[s]ection 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.” A.M.S., 70 A.3d at 836 (citations omitted; 

emphasis in original).

Here, with respect to the Section 5328 factors, the trial court 

determined that factors 1, 3, 4, 5, 9, 10, and 12 were neutral and favored 

both Mother and Father equally. (Trial court opinion, 9/9/16 at 5.) The 

court further determined that factors 2, 6, 7, 8, 13, 14, 15, and 16 were not 

applicable. (Id.) With respect to factor 11, which considers the proximity of 

the residences of the parties, the trial court determined that this factor 

favored Father only because Mother decided to relocate. (Id.)

The trial court then proceeded to consider the relocation factors under 

Section 5337(h) and found as follows:

First, we consider the nature, quality, involvement 

and duration of the relationship [Child] has with 

Father. At [the] hearing, Father testified that he has 
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a close relationship with [Child]. In the mornings he 

gets [Child] off to school after breakfast. Although 

Father is not Catholic, he regularly attends mass 

with [Child]. Father stated that Mother is the “lead 

dog” and sometimes she forgets that he is there. 

Nonetheless, Father expressed that Mother is a 

wonderful mom, however, he worries that she takes 

on too much.

Mother testified that she has an excellent 

relationship with [Child]. Mother has established a 

routine for [Child] including chores and rules. She 

has set aside a night for family games and she is 

involved with [Child’s] education and homework. 

Mother cooks and bathes [Child] and she includes 

[Child] in the daily responsibilities around the house. 

Mother has become recently engaged to [M.K.], 

however, she is careful not to confuse the role [M.K.] 

plays with that of [Child’s] Father. [M.K.] lives near 

Havertown Twp., and Mother and [M.K.] have 

purchased a home but the title is in [M.K.’s name] 

alone. They plan to marry in 2017. We are 

concerned that Mother and [M.K.] are not yet 

married and that Mother’s name is not on the deed. 

Mother is currently enrolled at Drexel to complete a 

Masters in Art Therapy. Mother indicated that she 

has exhausted all online courses and now her 

educational goals require her to attend classes in 

person. In Monroe County, Mother cared for her sick 

mother, who died in February 2015. Mother also 

cares for her now adult brother and father, both of 

whom have Asperger’s. Mother’s father is a 

registered sex offender and cannot be alone with 

[Child], so he is not a resource for Mother or [Child]. 

Mother indicated that her father will be moving into 

an apartment in the Havertown Twp. area in the 

near future. Mother believes that Father should be 

involved in [Child’s] education as much as she is and 

she stated that Father is a good dad to [Child].

In addition, there was testimony from [M.K.], 

[R.J.] and [B.J.], Father’s mother and father[, 

respectively,] about the support they will give in 

caring for [Child]. [M.K.] has a good relationship 
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with [Child] and he indicated that his job will allow 

him to work from home. He is pursuing a master’s 

degree in software engineering and his schedule will 

not conflict with Mother’s schedule at Drexel. [R.J.] 

testified that he is an avid hunter and he does 

outdoor things with [Child]. He stated that he 

normally sees [Child] twice a week when he is in 

Father’s custody. [B.J.] also testified. She has a 

flexible work schedule which will allow her to assist 

in child care for [Child]. She is concerned that she 

will see [Child] less if he relocates to Havertown 

Twp.

In weighing the factors set forth in § 5337(h), 

we believe that both parents have exhibited excellent 

involvement in [Child’s] life. We are confident that 

both Mother and Father will remain excellent role 

models and positive influences.

We next consider [Child’s] age, developmental 

stage, needs and likely impact the relocation will 

have on his physical, educational and [emotional] 

development. [Child] appeared before this Court 

and he exhibits the enthusiasm and energy of a 

healthy 7 year old boy. We find no issues about 

[Child’s] physical or emotional development which 

will have an impact by the proposed relocation.

Next, we must consider the feasibility of 

preserving the relationship between [Child] and 

Father after relocation. The distance between

Havertown Twp. and Monroe County is not 

significant. As such, we do not believe that this 

distance will cause logistical problems for 

maintaining a consistent physical custody 

arrangement. Although the periods of partial 

physical custody will be curtailed during the school 

year, both Mother and Father have agreed to flip the 

physical custody schedule during the off school 

months which will permit Father to have a significant 

period of partial physical custody. Nevertheless, 

technology makes it possible for Father and [Child] 

to see and speak to each other every day.
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Since [Child] is 7 years old, we will not 

consider his preference in living primarily with 

Mother or Father. There is no pattern of conduct by 

either parent to thwart the relationship of the other. 

Father and Mother have impressed this Court with 

their willingness to work with each other to maintain 

their relationship with [Child] and each other. 

Mother and Father are the epitome of good 

parenting.

We find that the relocation will improve 

Mother’s life and especially her desire to continue her 

educational goals. Mother indicated that [Child] will 

be starting a new school regardless of which parent 

is awarded primary physical custody. We believe 

that [Child] will gain great educational opportunities 

in the Havertown area. The location is close to 

Philadelphia and the broad scope of activities, 

including many historic and cultural opportunities.

Father also presented evidence about the 

school district which [Child] would attend if the 

relocation was not granted. The educational 

opportunities are equivalent; however the historic 

and cultural advantages are significant in Havertown.

Mother’s motivation to relocate is based in 

large part on her desire to continue her education 

and her future marriage to [M.K.]. We trust her 

motives are genuine and that she believes she will 

be providing [Child] with the advantages found in 

the Havertown area. Moreover, we believe that 

Father’s opposition to the relocation is also genuine. 

He is concerned with [Child’s] well-being and the 

general quality of his life. We are astounded by the 

parenting skills and maturity of each parent and 

have no doubt they will continue to cooperate and 

continue to make [Child] their priority even after 

relocation. We have thoroughly examined the 

evidence and we believe that the factors weigh more 

heavily in favor of [Child] relocating to Havertown 

Twp. While no one factor alone outweighs any other 

factor, we must consider all the factors together to 

determine what is best for [Child].
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Id. at 5-9 (underscoring omitted).

Here, Father first contends that because 15 of the 16 Section 5328(a) 

factors were either neutral or inapplicable and because the trial court found 

that the remaining factor, which is factor 11 that considers the proximity of 

the residences of the parties, weighed in Father’s favor, that the trial court 

erred in not awarding Father primary physical custody. Father’s argument is 

flawed for two reasons. First, it compels the illogical conclusion that where a 

mother and a father are equally fit to act as their child’s primary custodian 

based upon consideration of the Section 5328 factors, the parent who seeks 

to relocate would never be awarded primary custody solely because that 

parent sought such relocation. Second, Father’s argument ignores the 

mandate under the Act that requires the trial court to consider the 

ten additional factors set forth in Section 5337(h) when determining a 

request for relocation. Therefore, Father’s first claim lacks merit.

Father next contends that Mother failed to satisfy her burden of 

proving that relocation will serve Child’s best interests. In this section of his 

brief, Father claims that the trial court abused its discretion with respect to 

its weighing of factor 7 under Section 5337(h), which required it to consider 

whether relocation will enhance Child’s general quality of life. With respect 

to that factor, the trial court concluded that Mother’s relocation to 

Havertown “is close to Philadelphia and the broad scope of activities, 

including many historic and cultural opportunities.” (Trial court opinion, 
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9/9/16 at 8.) Father claims that because no evidence was offered with 

respect to the historic and cultural opportunities offered in Philadelphia or 

those offered in Monroe County, the trial court abused its discretion by 

considering evidence outside of the record in making its decision. See 

M.P. v. M.P., 54 A.3d 950, 954 (Pa.Super. 2012) (reiterating that a trial 

court may not consider evidence outside of the record in making its 

decision). (Father’s brief at 29-30.) A review of Father’s Pa.R.A.P. 1925(b) 

statement, however, reveals that Father failed to preserve this particular 

challenge. Therefore, Father waives this claim on appeal. See In the 

Interest of B.S., 831 A.2d 151, 155 (Pa.Super. 2003) (failing to include 

claims in Rule 1925(b) statement results in waiver of those claims on 

appeal).

The remainder of Father’s argument with respect to his second issue 

on appeal requests that we reweigh the Section 5337(h) factors. We have 

carefully reviewed the record in this case. Additionally, we are quite 

cognizant of our standard of review. Accordingly, because competent record 

evidence supports the trial court’s reasonable findings and those findings 

were not the result of an error of law, we must accept the trial court’s 

findings and decline Father’s invitation to reweigh the evidence. See C.R.F., 

45 A.3d at 443 (reiterating that where a trial court’s conclusions are 

reasonable as shown by record evidence and those conclusions are not the 

result of an error of law, the appellate court is bound by those conclusions).
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In his final issue on appeal, Father contends that “the trial court 

committed an error of law and/or abused its discretion in failing to consider 

evidence contrary to relocation.” (Father’s brief at 36.) In his brief, Father 

then sets forth selected testimony, followed by the conclusions that Father 

believes that the trial court should have reached with respect to that 

testimony. Once again, Father invites us to reweigh the evidence and reach 

a different result. And once again, we must decline Father’s invitation to do 

so because we are bound by the trial court’s conclusions where, as here, 

those conclusions are reasonable and supported by record evidence. See 

id.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/14/2017