Appeal from the Order dated June 16, 2011, Court of Common Pleas, Washington County, Civil Division at No. 2008-8458
The opinion of the court was delivered by: Donohue, J.:
BEFORE: DONOHUE, LAZARUS and OTT, JJ.
C.R.F., III ("Father") appeals from the order of court granting S.E.F. ("Mother") primary physical custody of their two children and permitting Mother to relocate with the children to Somerset County. Mother's Petition to Modify Custody and for Relocation was filed on July 6, 2010, before the effective date of the new Child Custody Act, 23 Pa.C.S.A. § 5321 et seq. ("the Act"). However, the hearing on Mother's request commenced on April 7, 2011, after the effective date. We conclude that where the evidentiary proceeding commences on or after the effective date of the Act, the provisions of the Act apply even if the request or petition was filed prior to the effective date. Because the trial court failed to apply the appropriate law, we vacate the order and remand.
The trial court succinctly summarized the relevant history of this case as follows:
The parties are parents of two minor children [N.F] (d.o.b. 4/10/06) and [C.F.], (d.o.b. 4/16/10). [N.F.] was born prior to the parties [sic] marriage, but is the biological child of both parties. The parties were married on June 16, 2007 in Washington,
Pennsylvania. On or about September 18, 2008,  Father filed a [d]ivorce [c]omplaint. Upon receiving notice of the divorce complaint, on September 26, 2008, [Mother] ... moved out of the marital residence with [N.F.] and lived in Myersdale, [Somerset
County,] Pennsylvania with her immediate family. A [c]ustody [c]onsent order was entered on October 16, 2008 giving the parties joint legal custody and 50-50 physical custody of [N.F.]. [No further custody proceedings occurred.]
The parties reconciled in November of 2008, but  Father never withdrew his [d]ivorce [c]omplaint. On April 16, 2010, their second child [C.F.] was born, but by July 7, 2010[,] Father amended his divorce [c]omplaint to include [C.F.] in the custody count. The marriage has deteriorated further and now apparently is no longer salvageable. On July 6, 2010, Mother filed a [p]etition to [m]odify [c]ustody and for [r]elocation. Another [i]nterim [c]onsent [o]rder was entered on September 28, 2010, giving Mother partial physical custody and scheduling a relocation hearing. Ultimately, after the hearing [on April 7, 2011] an [o]rder was entered ... on June 16, 2011 granting Mother's petition for relocation and awarding primary custody. Mother's request for permission to relocate commenced prior to the effective date of 23 Pa.C.S.A. § 5337, which essentially codified the relocation factors outlined in the case of Gruber v. Gruber, 400 Pa. Super. 174, 5834 A.2d 434 (Pa. Super. 1990), and its progeny.
Trial Court Opinion, 9/13/11, at 1-2 (emphasis in the original).
This appeal followed, in which Father raises the following two questions for our review:
1. Did the [l]ower [c]court err by granting [Mother] permission to relocate to Myersdale, Somerset County, Pennsylvania, when a consideration of the evidence and relocation factors did not support such a decision?
2. Did the [l]ower [c]court err in granting Mother primary physical custody of the minor children when the evidence and custody ...