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[U] E.A.C. v. J.A.L.

Superior Court of Pennsylvania

February 14, 2014

E.A.C. Appellant
J.A.L. Appellee


Appeal from the Order Entered March 28, 2013 In the Court of Common Pleas of Schuylkill County Family Court at No(s): 269-2013




E.A.C. ("Mother") appeals from the order of the Court of Common Pleas of Schuykill County entered on March 28, 2013, which denied Mother's petitions for relocation and modification of custody, and granted J.A.L. ("Father") primary physical custody and Mother partial physical custody of the parties' female child, M.L., (born in February of 2010) ("Child"). The order also granted both parties shared legal custody. Based on the following, we affirm.

The trial court summarized the facts and procedural history as follows:
Mother and Father were married on May 1, 2009. At the time the parties were married and when [Child] was born, Mother was enlisted in the United States Army and was stationed at Fort Bragg, North Carolina. Father was living in Schuylkill County, Pennsylvania and was working at the Wal-Mart Distribution Center. Father currently lives with his Father . . . in New Ringgold in Schuylkill County, where he has resided except for a short period of time when he lived on his own in Ashland, Pennsylvania.
[Child] lived with Mother and maternal grandmother in North Carolina for the first four months of her life as maternal grandmother stayed in North Carolina to help Mother care for [Child]. During those first four months[, ] Father would travel to North Carolina when he could to visit [Child]. Maternal grandmother returned to Pennsylvania in June 2010 and [Child] came with her. For the rest of 2010 and for most of 2011 [Child] would spend approximately 6 to 8 weeks with Mother in North Carolina and then approximately 4 to 5 weeks with either Father or with the maternal grandparents in Pennsylvania.
Mother and Father were divorced by the General Court of Justice in Cumberland County, North Carolina on or about March 7, 2011. On or about June 30, 2011, the North Carolina court approved a parenting plan. Pursuant to the Court Order, Mother is the primary custodian; however, pursuant to Paragraph D(7) if Mother was deployed or on temporary duty then [Child] was to reside with Father until Mother returns from military duty. On January 19, 2012, Mother was deployed to Korea for one year. Father became the primary physical custodian of the minor child during that period; however, [Child] divided her time between Father and maternal grandparents. In March 2012, Mother received information that she would be permanently stationed in Germany for a three year period and she received her official orders in December 2012.
Mother told Father that she was going to Germany and that it was her intention to take [Child]. Father did not consent to the relocation, but did not officially inform Mother that he opposed it until she returned from Korea. Father stated that he is concerned about the great distance from his home to Germany. Father informed Mother that he would seek primary custody while she is stationed in Germany. Both parties then sought primary custody of the minor child.

Trial Court Opinion, 7/2/2013, at 2-3.

On February 14, 2013[, ] Mother filed a Petition for Special Relief under 23 Pa.C.S. § 5337 relating to relocation. Also on February 14, 2013, Mother filed a Petition for Modification of Custody. By Order of Court dated February 15, 2013 the Honorable William E. Baldwin dismissed the Petition for Special Relief because [Mother] failed to comply with the statutory notice requirements identified in 23 Pa.C.S. § 5337(c) and the Petition failed to identify exigent circumstances sufficient to approve the proposed relocation pending an expedited full hearing.
On February 26, 2013, [Father], filed a counter-affidavit regarding relocation where Father objected to the relocation and requested a hearing. Also on February 26, 2013, Father filed an answer to the modification of the custody Order and an answer to the Mother's Petition for Special Relief and relocation. On February 27, 2013, Mother re-filed her Petition for Special Relief under 23 Pa.C.S. § 5337. The parties also appeared before the custody conciliation officer on the Complaint for Modification of Custody. The matter was assigned to this Court on March 1, 2013 to hold an expedited custody trial in accordance with 23 Pa.C.S. § 5337(g) because Mother was scheduled to be deployed to Germany on Monday, March 10, 2013. The Court held a conference call with the attorneys for both parties on March 4, 2013 and counsel for Mother indicated that her deployment was continued until the parties could hold an expedited custody trial. An expedited custody trial was conducted on March 14th and March 15th 2013.

Trial Court Opinion, 3/28/2013, at 1-2.

On March 28, 2013, the court entered an order and opinion, denying Mother's request to relocate to Germany with Child. Moreover, the court order provided Father is the primary physical custodian of Child and that Mother has four to five months of partial physical custody with Child in Germany and the opportunity to exercise additional periods of time in Pennsylvania. The order also gave joint legal custody to both parties and allowed the maternal grandparents partial custody for two weekends per month. Mother's appeal followed on April 23, 2012.[1]

On appeal, Mother presents the following five issues for our review:

1. Do the mandatory factors relating to custody and relocation in the Child Custody Act violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution as they apply to military personnel who are parents and are required by their military orders to relocate?
2. Do the terms of the Child Custody Act offend public policy as they apply to parents who are military personnel required by their commands to relocate?
3. Did the lower court commit an error of law in failing to obey the express terms of the Child Custody Act as they apply to the prior, mandated, relocation of the child, and by utilizing the one year absence of Mother due to her deployment to Korea as a justification for changing primary custody and denying Mother's request for relocation?
4. Did the lower court abuse its discretion by failing to correctly apply the factors for custody and by ignoring or misconstruing evidence which supported the application of other factors relating to custody?
5. Did the lower court abuse its discretion by failing to correctly apply the factors for relocation and by ignoring or misconstruing evidence which supported the application of other factors relating to relocation?

Mother's Brief at 8.

We reiterate our scope and standard of review of a custody determination 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.
With any child custody case, the paramount concern is the best interests of the child. This standard requires a case-by-case assessment of all the factors that may legitimately affect the physical, intellectual, moral and spiritual well-being of the child.

M.J.M. v. M.L.G., 63 A.3d 331, 334 (Pa.Super. 2013), quoting J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa.Super. 2011).

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).

Our Legislature adopted a new Child Custody Act ("Act"), 23 Pa.C.S. §§ 5321-5340, which became effective on January 24, 2011. Section 5337 applies to relocation requests, and provides as follows, in relevant part:

(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 ...

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