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2011 PA Super 238
IN THE SUPERIOR COURT OF
No. 995 MDA 2011
Appeal from the Order entered May 6, 2011,
Court of Common Pleas, Susquehanna County,
Civil Division at No. 2009-00315
BEFORE: DONOHUE, LAZARUS and FITZGERALD*, JJ.
OPINION BY DONOHUE, J.:
Filed: November 9, 2011
Appellant, M.P. (“Mother”), appeals from the order entered on May 6,
2011 granting permission for Appellee, E.D. (“Father”), to move from
Susquehanna County, Pennsylvania, to Barton, New York, with the parties’
male child, D.C.D., (“Child”), and entering a revised custody schedule. This
appeal requires consideration of the procedures and legal standards set forth
in the newly enacted Child Custody Act, 23 Pa.C.S.A. §§ 5321 et seq.
(sometimes referred to as the “Act”). For the reasons that follow, we vacate
the trial court’s order and remand this case to the trial court for further
proceedings consistent with this decision.
Child was born in October 2007. After the separation of Mother and
Father, by order entered April 30, 2009, the trial court awarded primary
physical custody of Child to Father, and partial custody and visitation to
*Former Justice specially assigned to the Superior Court.
Mother from noon each Wednesday until noon each Friday. On January 25,
2011, Father filed a Petition for Special Relief seeking permission to relocate
with Child to Barton, New York to move in with his girlfriend, Meaggen
According to his Petition, Father desires to move to
Barton to obtain an advancement in his employment with Caliber Casings, a
company in the gas exploration business.
On the same day (January 25,
2011), the trial court issued an order that included, inter alia, a rule to show
cause on Mother why the requested relief should not be granted.
addition, the trial court’s order granted Father leave to relocate immediately
to Barton and scheduled an evidentiary hearing for May 2, 2011.
February 11, 2011, Mother filed an answer to Father’s petition, in which she
opposed the relocation.
Mother also filed a counterclaim seeking primary
physical custody of Child.
At the evidentiary hearing on May 2, 2011, Father and Mother each
Father also presented the testimony of his mother and Mother
presented the testimony of her father. By an Opinion and Order dated May
3, 2011 and entered on May 6, 2011, the trial court granted permission for
Father to relocate to Barton with Child. The trial court set forth a revised
custody schedule, pursuant to which Mother would have partial physical
custody of Child every other weekend from Friday at 4:30 p.m. until Sunday
at 6:00 p.m., and a longer three-day period on weekends when Child has a
day off from school on a Friday or a Monday. Mother also received partial
physical custody for three additional five-day periods during the summer
months and on alternate holidays.
In support of these decisions, the trial court found as follows:
The father now wishes to relocate to the area of Barton,
New York in order to obtain an advancement of his employment
with Caliber Casings, a company involved in the gas exploration
and development field.
He has been employed with the
company for approximately six (6) months and if he obtains a
promotion his hourly rate will increase by about $3.00. He is
currently involved with [Kenyon] who also is employed primarily
during the daytime hours. He desires to remove himself and the
child, [Child], to the home of [Kenyon], a three (3) bedroom
home located in Barton, New York. Currently, he resides with
his brother and sister-in-law here in Susquehanna County. He
has had primary physical custody of [Child] since the filing of the
[trial court’s] Order of April 30, 2009.
On the other hand, [Mother] continues to reside in the
area of Susquehanna County and subsequent to the Order of
April 30th, 2009 she has obtained different employment and no
longer is locked into working on weekends as she had been prior
to the time of the Order of April 30, 2009. She generally works
at a bar/establishment in Montrose, Pennsylvania.
opposed to the relocation in that it would be further [sic] away
and it might affect her ability to have partial custody and
visitation with her son on a weekly basis.
We must consider whether or not the proposed relocation
would be in the best interest of [Child]. We specifically find that
the move would benefit [Child] in that he has a good relationship
with his father as well as with [Kenyon]. The move to Barton,
New York[,] would mean an increase in pay for [Father] and as
such could provide an enhanced lifestyle for [Child].
Secondly, partial custody and visitation of the child with
[Mother] could be easily facilitated and enhanced with the
schedule to be better than the two (2) days per week which has
been enjoyed by herself, in other words[,] alternative partial
custody and visitation would allow her to maintain a good
continued relationship with her son, [Child].
Neither party is exhibiting any ill motive for desiring the
move to Barton, New York on behalf of the father and opposing
the move by the mother, each having exhibited to the [c]ourt
good cogent reasons for their opinions.
Inasmuch as the child has continually resided with [Father]
for the last two (2) years[,] we find that he has been the
primary care giver of the subject child and that primary physical
custody should remain with him.
Lastly, we are not totally convinced that the other son of
[Mother], [“Q.”], is wholly without aggression issues, despite
some evaluation and counseling which has been ongoing. It
would be better if the boys enjoy some quality time together
than be engaged in aggressive behavior initiated by [Q.] upon
Trial Court Opinion and Order, 5/6/11, at 1-3.
On June 6, 2011, Mother filed a timely notice of appeal in which she
raises six issues for our consideration and review:
Whether the trial court erred and abused its discretion in
failing to deny Father’s Petition for Relocation for failure to
comply with the mandatory provisions of 23 Pa.C.S.A. §
Whether the trial court erred and abused its discretion in
allowing Father to relocate with the minor child and
whether it applied the incorrect standard in deciding that
the relocation would provide a benefit to the minor child?
Whether the trial court erred in modifying Mother’s custody
time as a realistic alternative custody schedule?
Whether the trial court erred in failing to appropriately
investigate [Kenyon], who was not present nor testified
[sic] at the relocation/custody proceeding?
Whether the trial court erred and abused its discretion in
failing to consider all factors set forth in 23 Pa.C.S.A. §
53281 with respect to Mother’s counterclaim request for
Whether the trial court erred in finding that the past
aggression issues of Mother’s older son (the instant minor
child’s half-sibling) is a compelling factor to negate the
policy of this Commonwealth that siblings should be raised
The statute was inadvertently referred to in the Concise
Statement of Issues Complained of on Appeal as § 5528 instead
of the correct section, 5328.
Mother’s Brief, at 5 (footnote in original).
Our scope and standard of review regarding child custody matters is as
[O]ur scope is of the broadest type and our standard is abuse of
discretion. This Court 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.
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 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
A.D. v. M.A.B., 989 A.2d 32, 35-36 (Pa. Super. 2010) (citations and
quotation marks omitted).
Before addressing the issues Mother raises on appeal, we must first
determine what statutory law to apply in this case. On November 23, 2010,
the Pennsylvania legislature enacted the Child Custody Act, Act No. 112 of
The text of the session law provides that the new law “shall take
effect in 60 days,” i.e., on January 24, 2011, and further states in its section
4 that “a proceeding under the former provisions of 23 Pa.C.S. Ch. 53 which
was commenced before the effective date of this section shall be governed
by the law in effect at the time the proceeding was initiated.”
Legis. Serv. Act 2010-112, §§ 4-5 (H.B. 1639) (Purdon’s).
This latter directive is susceptible to at least two interpretations,
depending upon the meaning assigned to the term “proceeding.”
“proceeding” refers to the entirety of a custody action, i.e., from the initial
filing of a request for custody and including all subsequently decided issues
(e.g., requests for relocation, modification, and enforcement), then the
directive would require the application of the provisions of the former Child
Custody Act [23 Pa.C.S.A. §§5301-5315, repealed] for any custody case
filed prior to January 24, 2011.
If, on the other hand, a “proceeding” is
distinguished from a custody “action,” such that various “proceedings” (e.g.,
for relocation, modification, and enforcement) take place within the context
of a custody “action,” then all such proceedings initiated after January 24,
2011 would be governed by the new Act – even if the original custody action
was filed prior to its January 24, 2011 effective date. We note that the new
Act does not expressly define the term “proceeding.”
To the contrary, it
See, e.g., 23 Pa.C.S.A. § 5323 (“an action under this
chapter”); § 5327 (“any action regarding the custody of the child”); § 5331
(“a contested custody proceeding”); § 5335 (“the custody proceedings”); §
5321 (“any child custody matter”); § 5340 (“a child custody matter”).
The object of statutory interpretation is to ascertain and effectuate the
intent of the legislature.
1 Pa.C.S.A § 1921.
We must assume that the
legislature did not intend an absurd or unreasonable result, and in this
regard we may consider the practical consequences of a particular
interpretation. Id. at § 1922; Commonwealth v. Daikatos, 708 A.2d 510,
512 (Pa. Super. 1998).
With these principles in mind, in our view the
legislature intended to distinguish between an “action” for custody and
subsequent “proceedings” in connection therewith.
provides for the broadest possible application of the procedures and legal
standards in the new Act.
Under the alternative interpretation, the
provisions of the old Act (repealed under section 2 of the new Act) would
continue to apply to all aspects of every custody action filed before January
24, 2011 – and would continue to apply in those actions for many years into
the future, an absurd and unreasonable result.
Because in our view the
legislature intended for the provisions of the new Act to apply to all matters
relating to child custody after the Act’s effective date, the new Act applies to
all custody proceedings commenced after January 24, 2011.
Because Father initiated his relocation request after the effective date
of the new Act and Mother’s request for modification of the custody order
followed, the provisions of the new Child Custody Act apply here. As such,
our analysis of the issues presented here begins with section 53371 of the
Section 5337 provides in relevant part as follows:
§ 5337. Relocation
(1) The party proposing the relocation shall notify every
other individual who has custody rights to the child.
(2) Notice, sent by certified mail, return receipt requested,
shall be given no later than:
(i) the 60th day before the date of the proposed relocation
(ii) the tenth day after the date that the individual knows
of the relocation if:
(A) the individual did not know and could not
reasonably have known of the relocation in sufficient
time to comply with the 60-day notice and
(B) it is not reasonably possible to delay the date of
relocation so as to comply with the 60-day notice.
(3) Except as provided by section 5336 (relating to access to
records and information), the following information, if
available, must be included with the notice of the proposed
(i) The address of the intended new residence.
(ii) The mailing address, if not the same as the address of
the intended new residence.
(iii) Names and ages of the individuals in the new
residence, including individuals who intend to live in the
(iv) The home telephone number of the intended new
residence, if available.
(v) The name of the new school district and school.
(vi) The date of the proposed relocation.
(vii) The reasons for the proposed relocation.
(viii) A proposal for a revised custody schedule.
(ix) Any other information which the party proposing the
relocation deems appropriate.
(x) A counter-affidavit as provided under subsection
(d)(1) which can be used to object to the proposed
relocation and the modification of a custody order.
(xi) A warning to the nonrelocating party that if the
nonrelocating party does not file with the court an
objection to the proposed relocation within 30 days after
receipt of the notice, that party shall be foreclosed from
objecting to the relocation.
(4) If any of the information set forth in paragraph (3) is not
known when the notice is sent but is later made known to
the party proposing the relocation, then that party shall
promptly inform every individual who received notice under
(d) Objection to proposed relocation.—
(1) A party entitled to receive notice may file with the court
an objection to the proposed relocation and seek a temporary
or permanent order to prevent the relocation.
nonrelocating party shall have the opportunity to indicate
whether he objects to relocation or not and whether he
objects to modification of the custody order or not. If the
party objects to either relocation or modification of the
custody order, a hearing shall be held as provided in
The objection shall be made by
completing and returning to the court a counter-affidavit,
which shall be verified subject to penalties under 18 Pa.C.S.
§ 4904 (relating to unsworn falsification to authorities), in
substantially the following form:
(2) An objection made under this subsection shall be filed
with the court within 30 days of receipt of the proposed
relocation notice and served on the other party by certified
mail, return receipt requested.
(3) If notice of the proposed relocation has been properly
given and no objection to the proposed relocation has been
filed in court, then it shall be presumed that the
nonrelocating party has consented to the proposed
(4) If a party who has been given proper notice does not file
with the court an objection to the relocation within 30 days
after receipt of the notice but later petitions the court for
review of the custodial arrangements, the court shall not
accept testimony challenging the relocation.
(f) Modification of custody order.— If a counter-affidavit
regarding relocation is filed with the court which indicates the
nonrelocating party both has no objection to the proposed
relocation and no objection to the modification of the custody
order consistent with the proposal for revised custody schedule,
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the court may modify the existing custody order by approving
the proposal for revised custody schedule submitted under
subsection (c)(3)(viii), and shall specify the method by which its
future modification can be made if desired by either party. If a
counter-affidavit regarding relocation is filed with the court
which indicates that the nonrelocating party objects either to the
proposed relocation or to the modification of the custody order
consistent with the proposal for revised custody schedule, the
court shall modify the existing custody order only after holding a
hearing to establish the terms and conditions of the order
pursuant to the relocation indicating the rights, if any, of the
(1) Except as set forth in paragraph (3), the court shall hold
an expedited full hearing on the proposed relocation after a
timely objection has been filed and before the relocation
(2) Except as set forth in paragraph (3), the court may, on
its own motion, hold an expedited full hearing on the
proposed relocation before the relocation occurs.
(3) Notwithstanding paragraphs (1) and (2), if the court finds
that exigent circumstances exist, the court may approve the
relocation pending an expedited full hearing.
(4) If the court approves the proposed relocation, it shall:
(i) modify any existing custody order; or
(ii) establish the terms and conditions of a custody
(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
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and with the nonrelocating party,
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
(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.
(i) Burden of proof.—
(1) The party proposing the relocation has the burden of
establishing that the relocation will serve the best interest of
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new Act, which sets forth the procedures and standards for relocation
requests. With respect to procedural changes, section 5337 eliminates the
petition-and-answer protocol utilized in prior practice. The party seeking to
relocate does not make an initial filing with the trial court, but rather sends
by certified mail to every other party with custody rights a notice in
accordance with subsection 5337(c).
In addition to the other information
listed therein, a subsection 5337(c) notice must contain (1) a proposed
revised custody schedule, and (2) a counter-affidavit in the form set forth in
subsection (d). A party receiving a 5337(c) notice who objects either to the
relocation or to the terms of the proposed revised custody schedule must
complete the counter-affidavit included in the notice and file it with the trial
court within thirty days.
When the trial court receives a counter-affidavit
containing an objection either to the relocation or to the proposed revised
custody schedule, pursuant to section 5337(g) it must hold an expedited full
the child as shown under the factors set forth in subsection
(2) Each party has the burden of establishing the integrity of
that party’s motives in either seeking the relocation or
seeking to prevent the relocation.
(l) Effect of relocation prior to hearing.--If a party relocates
with the child prior to a full expedited hearing, the court shall not
confer any presumption in favor of the relocation.
23 Pa.C.S.A. § 5337.
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circumstances require approval of the relocation prior to an expedited full
Section 5337 also alters the legal standards that a trial court must
consider when ruling on a request to relocate.
Under prior practice, trial
courts considered relocation requests based upon the three-factor test set
forth in Gruber v. Gruber, 583 A.2d 434, 439 (Pa. Super. 1990). Under
the Child Custody Act, however, trial courts must consider the ten factors
listed in subsection 5337(h). In particular, while the Gruber test required
consideration generally of the “potential advantages of the proposed move
and the likelihood that the move would substantially improve the quality of
life for the custodial parent and the children,” Gruber, 583 A.2d at 439,
subsection 5337(h) sets forth a number of specific factors intended to isolate
and focus this important inquiry.
The Child Custody Act also implements changes to requests to modify
existing custody orders.
Section 5338 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.A. § 5338.
Section 5328(a)2 in turn sets forth a list of sixteen
§ 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:
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(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and
(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.
(3) The parental duties performed by each party on behalf
of the child.
(4) The need for stability and continuity in the child's
education, family life and community life.
(5) The availability of extended family.
(6) The child's sibling relationships.
(7) The well-reasoned preference of the child, based on the
child's maturity and judgment.
(8) The attempts of a parent to turn the child against the
other parent, except in cases of domestic violence where
reasonable safety measures are necessary to protect the
child from harm.
(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child adequate
for the child's emotional needs.
(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and special
needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party's availability to care for the child or ability
to make appropriate child-care arrangements.
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factors that must be considered in a best interests of the child analysis in
making any custody determination. 23 Pa.C.S.A. § 5328(a).
when a party files a petition for modification of a custody order, the trial
court must perform a ‘best interests of the child’ analysis considering all of
the section 5328(a) factors.
We now turn to the specific issues Mother raises in this appeal. For
her first issue on appeal, Mother contends that Father failed to provide her
with a notice in accordance with subsection 5337(c).
While it is true that
Father did not provide Mother with a subsection 5337(c) notice, Mother
waived this issue on appeal because she failed to raise it before the trial
court. See Pa.R.A.P. 302. In this regard, we note that neither the parties
nor the trial court complied with any of the procedural requirements of
section 5337 during the pendency of this case below.
Father failed to
(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.A. § 5328(a).
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commence his relocation action by sending a subsection 5337(c) notice to
Mother failed to file a counter-affidavit in accordance with
subsection 5337(d). And the trial court granted Father’s request to relocate
before conducting a full expedited hearing as required by section 5337(g),
circumstances and the trial court found none. 3
Because neither party
objected to any of these procedural failures, however, we must treat all of
them as waived.
For her second, third, and fourth issues raised on appeal, Mother
argues that the trial court failed to consider adequately the ten factors for
relocation in section 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. 23 Pa.C.S.A.
§ 5337(h). In this case, it cannot be ascertained from the record on appeal
This error, namely the trial court’s grant of Father’s request to relocate on
the same day it was filed despite the absence of any finding of exigent
circumstances, also violated the procedural requirements in place prior to
enactment of the Child Custody Act. See Plowman v. Plowman, 597 A.2d
701, 706 (Pa. Super. 1991) (“We therefore hold that where either parent
files a petition which raises the issue of whether it is in the best interest of
the child to move with the custodial parent outside of the jurisdiction, a
hearing must be held either before the move, or under exigent
circumstances, within a reasonable time thereafter.”).
On remand, we remind the trial court that subsection 5337(l) provides that
Father is not entitled to any presumption in his favor as a result of the trial
court’s erroneous decision to permit relocation prior to an evidentiary
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whether the trial court considered all of the section 5337(h) factors in
reaching its decision. To the extent that the trial court did consider these
factors, it did so in a cursory manner without references to the record or
explanations for its conclusions.
For example, factor (1) required the trial court to consider the “nature,
quality, extent of involvement and duration of [Child’s] relationship” with
Kenyon, a significant new person in Child’s life.4 Id. at § 5337(h)(1). And
factor (2) required the trial court to determine the “likely impact the
relocation will have on [Child’s] physical, educational and emotional
development,” taking into account Child’s age, developmental stage, and
needs. Id. at § 5337(h)(2).
To the extent that the trial court addressed
these factors at all,5 it appears to have done so in a single sentence, namely
that “[w]e specifically find that the move would benefit [Child] in that he has
a good relationship with his father as well as with [Kenyon].”
Opinion, 5/6/11, at 3. Based upon our review of the record, we are aware
that there is some evidence therein to support the trial court’s observations
In addition, because the request for relocation and modification of the
custody schedule added a new member to Child’s household (Kenyon), the
trial court was required (but failed) to ascertain whether she has ever been
convicted of or plead guilty or no contest to any of the offenses listed in
section 5329(a) of the new Child Custody Act.
In this regard, we note that the trial court separately addressed the
potential financial benefits of the move for Child and Father. Trial Court
Opinion, 5/6/11, at 2-3. Factors (1) and (2) do not involve considerations of
financial benefits – which are addressed instead in factors (6) and (7).
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regarding Child’s relationships with Father and Kenyon.
But it is not this
Court’s proper function to scour the record in attempts to intuit the reasons
supporting the trial court’s findings. Effective appellate review requires the
trial court to consider each of the factors set forth in section 5337(h), and to
state both its reasoning and conclusions on the record for our review.
Similarly, factor (3) requires the trial court to consider the “feasibility
of preserving the relationship between the nonrelocating party and [Child]
through suitable custody arrangements.” 23 Pa.C.S.A. § 5337(h)(3). The
trial court addressed this factor as follows:
Secondly, partial custody and visitation of the child
with [Mother] could be easily facilitated and
enhanced with the schedule to be better than the
two (2) days per week which has been enjoyed by
herself, in other words[,] alternative partial custody
and visitation would allow her to maintain a good
continued relationship with her son, [Child].
Trial Court Opinion, 5/6/11, at 3.
We note that the trial court made
significant modifications to the existing custody schedule, including reducing
Mother’s regular contact with Child from two days every week to two days
every other week, but adding more time in the summer and alternate
Unfortunately, the trial court provides no explanation for its
decision that this new schedule, which Mother opposes, is better than the
previous schedule. As such, we cannot assess the merits of the trial court’s
conclusion that the new custody schedule permits Mother to “maintain a
good relationship” with Child.
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For her fifth issue on appeal, Mother contends that the trial court failed
to consider the factors set forth in section 5328 of the new Child Custody Act
when considering Mother’s counterclaim for custody of Child. 6 Subsection
5328(a) lists sixteen factors that a trial court must consider when
performing a best interests of the child analysis when ordering any form of
custody. 23 Pa.C.S.A. § 5328(a). In this case, the trial court disposed of
Mother’s counterclaim for custody by stating that “[i]nasmuch as [Child] has
continually resided with [Father] for the last two (2) years we find that he
has been the primary care giver of [Child] and that primary physical custody
should remain with him.” Trial Court Opinion, 5/6/11, at 3. On remand, the
trial court should conduct a thorough analysis based upon the factors set
forth in subsection 5328(a).
For her sixth and final issue on appeal, Mother contends that the trial
court erred in concluding that prior aggressive acts by Mother’s older son
Given the parties’ failure to follow the procedural rules set forth in section
5337, we must treat Mother’s counterclaim for custody as a request by
petition for modification of the original custody order (dated April 30, 2009)
pursuant to 23 Pa.C.S.A. 5338(a) (“Upon petition, a court may modify a
custody order to serve the best interests of the child.”).
In accordance with proper practice under section 5337, where the
nonrelocating party merely objects to modification of the existing custody
order in his/her section 5337(d) counter-affidavit (i.e., in response to the
proposed revised custody schedule in the section 5337(c) notice, see
subsection 5337(c)(viii)), the trial court will not perform a best interests of
the child analysis pursuant to the section 5328(a) factors, but will instead
decide whether the existing custody order should be modified pursuant to
the section 5337(h) factors.
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towards Child was a compelling factor in the decision not to award custody
of Child to Mother. In this regard, we first note that, on remand, the trial
court must evaluate the nature of the relationship between Mother’s older
son and Child in its analysis pursuant to subsection 5328(a), including both
factors (2) (continued risk of harm to the Child) and (6) (sibling
relationships). Also, contrary to Mother’s request that we do so here, we will
not second guess the trial court’s decisions regarding the weight of the
evidence and/or its credibility assessments of the witnesses with respect to
the potential continuing threat that Mother’s older child may pose to Child.
King v. King, 889 A.2d 630, 632 (Pa. Super. 2005) (“It is not this Court’s
function to determine whether the trial court reached the ‘right’ decision;
rather, we must consider whether, ‘based on the evidence presented, given
[sic] due deference to the trial court’s weight and credibility determinations,’
the trial court erred or abused its discretion in awarding custody to the
prevailing party.”) (quoting Hanson v. Hanson, 878 A.2d 127, 129 (Pa.
For these reasons, we vacate the trial court’s order and remand for
further proceedings consistent with this decision. Jurisdiction relinquished.
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