Appeal from the Order Entered November 15, 2011 In the Court of Common Pleas of Lackawanna County Civil Division at No(s): 2009-FC-40747
The opinion of the court was delivered by: Bender, J.
BEFORE: STEVENS, P.J., BENDER, J., and GANTMAN, J.
M.P. (Mother) appeals from the order entered on November 15, 2011, prohibiting her from traveling with her and M.P.'s (Father) daughter, born in June of 2008, to Ecuador to visit with extended family for three weeks. We reverse.
This present litigation began on July 14, 2011, when Mother filed a custody petition seeking permission to travel with her daughter to Ecuador, where Mother had been born and grew up.*fn1 Father opposed the grant of the petition and a hearing was held on November 4, 2011, at which Mother, Father, and Pastor Patricia Lee testified. The following background information was gleaned from the hearing testimony, the trial court opinion, and other documents of record. The parties were married, but are now separated, and Mother, who has obtained legal residency in the United States, sought a protection from abuse (PFA) order against Father in 2009. By order entered on July 20, 2009, the court granted Mother's PFA petition, and awarded her primary custody of the parties' child with Father allowed supervised visitation for two hours per week.*fn2 However, Father did not take this opportunity to visit with his child during the eighteen month period prior to the November 4, 2011 hearing. He testified that the court had not informed him that Pastor Patricia Lee was approved to supervise the visits. However, Pastor Lee testified at the same hearing, indicating that she had contacted both Mother and Father and met with Mother and child, but that Father later contacted her, stating that "he was unable to do the visits at that time." N.T., 11/4/11, at 55. Additionally, we note that "[o]n October 26, 2011, the Parties agreed to maintain the status quo with regards to the aforementioned custody schedule. On November 4, 2011, the Parties agreed Mother would enjoy sole legal custody of the Minor Child, and Father would exercise supervised partial physical custody with the Minor Child at the Employment Opportunity and Training Center...." Trial Court Opinion (T.C.O.), 1/12/12. at 1.
At the November 4th hearing, Mother testified about her desire to take her daughter to Ecuador to visit her parents (the child's maternal grandparents) and her extended family for three weeks. Mother explained that it would be difficult for the grandparents to obtain visas and that the grandmother's health issues made flying to the United States very difficult. Mother also indicated that her aunt is the only family member who has been able to come to the United States and visit her and the child on a few occasions (in 2009, 2010 and 2011). Mother further explained that she and the child would be staying with the grandparents on their farm, which has a working telephone and is near medical and hospital facilities. She also stated that if something happened to her, her aunt could care for the child, who speaks Spanish and understands English.*fn3
In response, Father testified that, although he has never been to Ecuador or met Mother's family, except for her aunt when she visited, he opposes Mother's trip. Although he did acknowledge that Mother's parents had had difficulty obtaining visas to come to the United States, he claims that Ecuador is a third world country, that "there are different diseases, diseases I don't know anything about[,]" and crime. N.T. at 39. Father also testified that he worried that if the child got sick, her current health insurance would not be accepted, and that if something happened to Mother, he would have difficulty and it would be expensive to get the child returned to the United States.
At the close of testimony, the court took the matter under advisement and then on November 15, 2011, issued its order without any explanation, directing that Mother "shall not remove Child ... from the United States to Ecuador." Order, 11/5/11.*fn4 Mother filed a timely appeal, raising the following three issues:
1. Whether the trial court committed an error of law when it denied Appellant, mother, the right to take her child to visit the child's extended family despite the parties' agreement for Mother to have sole legal custody of the child pertaining to medical, educational, and religious decisions and the fact that Mother has always acted in the best interest of the child?
2. Whether the trial court erred in denying Mother the right to travel to Ecuador with the minor child to visit the child's extended family where its decision was based on evidence obtained dehors the record, was in contravention of the best interest of the child, and was not supported by the competent evidence in the record?
3. Whether the trial court erred as a matter of law when it failed to delineate the rationale for its Order dated November 15, 2011, pursuant to 23 Pa.C.S. § 5323(d)?
In addressing custody issues, we are guided by ...