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

Superior Court of Pennsylvania

February 14, 2014

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

NON-PRECEDENTIAL DECISION

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

BEFORE: DONOHUE, J., OTT, J., and PLATT, J. [*]

MEMORANDUM

OTT, J.

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 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 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. § 5337(h).

In addition, the trial court in this case was required to consider the best interest factors set forth in section 5328, 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 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.
(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.
(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. § 5328(a).

As the party proposing relocation, Mother has the burden of proving that relocation will serve Child's best interest as set forth under Section 5337(h). See 23 Pa.C.S. § 5337(i)(1). Furthermore, "[e]ach party has the burden of establishing the integrity of that party's motives in either seeking the relocation or seeking to prevent the relocation." 23 Pa.C.S. § 5337(i)(2).

With respect to Mother's first two claims, that the Child Custody Act violates the Equal Protection Clause of the Fourteenth Amendment and offends public policy as it applies to parents who are military personnel required by their commands to relocate, we observe that these issues are waived as they were not preserved with the trial court. See Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal"). As the trial court noted:

In Exception 4, the Mother raises the following issue with regard to the Equal Protection Clause, which was not yet addressed by this Court.
The Trial Court violated the terms of the Equal Protection Clause of the United States Constitution by failing to accord to [Mother], an enlisted person subject to military obligations which effect custody, the same considerations, safeguards and presumptions under the custody law as are available to civilians.
This Court does not believe that the Equal Protection Clause is relevant in that this Court applied the relevant statutory factors and rendered a custody decision in accordance therewith. Mother did not raise the Equal Protection Clause before this Court nor has she provided us with any basis under which we can analyze this issue. For example, she has not stated that she is a member of a suspect class or that a fundamental right is at issue. Nor has she pointed to any facial discrimination against members of the military. We, therefore, believe that this issue is waived.

In Exception 5, the Mother asserts that she was afforded unequal protection in that the Child Custody Act (23 Pa.C.S. §§ 5321-5340) requires consideration of factors which an armed service-member who is ordered to a new military assignment or permanent change of station cannot know or provide. Mother is, thus, challenging the constitutionality of the statute. In Hill v. Divecchio, 425 Pa.Super. 355, 325 A.2d 642 (1993), the court stated:

An appellate court will not consider a challenge to the constitutionality of a statute if the issue has not been raised in the court below or if no notice has been given to the Attorney General. The proper method to attack the constitutionality of a statute in a civil case is to plead the issue and give notice to the Attorney General as required by Pa.R.Civ.P. 235.

Id. (citation omitted). This issue was not raised before the trial court, nor does this Court believe that the Attorney General was notified. Therefore, it is not properly raised on appeal.

Trial Court Opinion, 7/2/2013, at 6-8 (emphasis in original; footnote omitted). We agree with the court's well-reasoned analysis and find that Mother did not preserve her equal protection and public policy arguments for our review.[2] Accordingly, we need not address these issues further.

In Mother's third issue, she contends the court erred in disregarding the prohibitions of 23 Pa.C.S. § 5337(l) by conferring a presumption in favor of Child's prior relocation from North Carolina to Pennsylvania. Mother notes that during 2012, she was deployed to Korea and Child was relocated to Pennsylvania with Father. She states the trial court "distinguished this case from the only other case interpreting that section of the Act, [B.K.M. v. J.A.M., 50 A.3d 168 (Pa.Super. 2012), ] by pointing out that Mother in this case had not returned to North Carolina at the end of her tour of Korea, and concluded, therefore, that the prohibitions [of Section] 5337(l) do not apply." Mother's Brief at 32. Mother states by refusing to apply the terms of Section 5337(l), the court found "the temporary situation of [Child] in Pennsylvania to be 'more stable' and therefore more persuasive, more attractive, than her prior life with her Mother, in North Carolina." Mother's Brief at 33. Moreover, Mother argues that 51 Pa.C.S. § 4109, regarding the exclusion of military service from a child's best interest determination, was created to "as a shield to protect military parents from losing custody of their child based on their absence from their child's life while they are serving our country." Mother's Brief at 34 (quotation and internal quotation marks omitted). Mother complains there was nothing in the North Carolina custody agreement and order that "provided that Mother would not be allowed to resume custody if she did not live in North Carolina." Mother's Brief at 35. Lastly, she concludes the court "erred by allowing Mother's absence and the circumstances of [Child]'s temporary custody, to skew the decision process both with respect to the relocation factors of [Section] 5337 and the custody factors of [Section] 5328." Id. at 36.

Pertinent to the analysis of this issue, we note that pursuant to Subsection 5337(l), "[i]f 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. § 5337(l).

Additionally Section 5338, which deals with modification of an existing order, states, in relevant part:

(b) Applicability. -- Except as provided in 51 Pa.C.S. § 4109 (relating to child custody proceedings during military deployment), this section shall apply to any custody order entered by a court of this Commonwealth or any other state subject to the jurisdictional requirements set forth in Chapter 54 (relating to uniform child custody jurisdiction and enforcement).

Pa.C.S. § 5338(b). Section 4109 provides, in pertinent part:

(c) Exclusion of military service from determination of child's best interest. -- If a petition for the change of custody of the child of an eligible servicemember who was deployed in support of a contingency operation is filed after the end of the deployment, no court may consider the absence of the eligible servicemember by reason of that deployment in determining the best interest of the child.

51 Pa.C.S. § 4109(c).

Here, the trial court stated in its opinion that it did not believe that Section 5337(l) was applicable to this case, explaining:

The only matter before this Court is the Mother's request to relocate with the minor child to Germany and the Mother did not relocate to Germany with the minor child prior to the hearing. The child did relocate to Pennsylvania when Mother was deployed to Korea in accordance with the North Carolina custody order. However, Mother did not return to the status quo under which she would have primary physical custody following deployment. If Mother had returned to North Carolina, then the custody order would remain in effect and this Court would understand the applicability of [Section] 5337(l) had Father sought to amend the custody order such that he would retain primary physical custody in Pennsylvania. This case is different in that the Mother is asking to relocate, based upon her change of orders, with the minor child to a foreign country, which was not addressed in the North Carolina custody order. Therefore, this Court does not believe that [Section] 5337(l) is applicable to the child's relocation to Pennsylvania following Mother's deployment.
Furthermore, the only requirement of [Section] 5337(l) is that this Court must not confer a presumption in favor of a relocation if the party relocates with the child before the hearing. In B.K.M. v. J.A.M., 50 A.3d 168, 2012 PA.Super. 156, the Pennsylvania Superior Court considered the meaning of this section as a matter of first impression. In that case, the mother moved to Sweden with the children before the expedited relocation hearing. The trial court excluded all evidence from the period of time after the mother moved to [Sweden]. The Superior Court stated "the trial court must apply the same consideration of the best interests of the child, and impose the same allocation of burdens, even where a relocation occurs prior to a full expedited hearing." The Superior Court concluded that the trial court in that case erred in discounting any evidence after the Mother's relocation with the children, concluding that the trial court could not effectively consider the relocation and best interests factors without considering the evidence of what occurred during that period of time.
Thus, even if [Section] 5337(l) applies to the period of time that [Child] resided in Pennsylvania with Father as the primary physical custodian while Mother was deployed to Korea, this court was required to consider evidence from that period of time. This Court did not convey a presumption in favor of the Father because the child had resided in Pennsylvania during Mother's deployment, but rather, based its decision upon all relevant statutory factors. Furthermore, while this Court denied Mother's request to relocate with the minor child, the modified custody order provides for the Mother to exercise significant periods of time of up to five months per year with the minor child in Germany. This case presented the difficult situation in which both parents have a loving bond with their child and the geographic distances require one parent to be a significant distance from their child at almost all times.

Trial Court Opinion, 7/2/2013, at 4-6 (emphasis removed).

We agree with the trial court. The facts in this case do not warrant the application of Section 5337(l). During Mother's 2012 deployment to Korea, Child resided with Father pursuant to the parties' North Carolina parenting agreement.[3] However, Mother did not return to North Carolina following return from this deployment because she was informed that she would be permanently stationed in Germany for a three-year period. As the court properly pointed out, if Mother had returned to North Carolina, instead of moving to Germany, it would have been bound by Section 5337(l) and would not have been permitted to confer any presumption on Child's relocation to Pennsylvania when making custody and relocation determinations. See 23 Pa.C.S. § 5337(l); B.K.M., 50 A.3d at 175 ("Section 5337(l), by its unambiguous language, prohibits a court from conferring a presumption in favor of a relocation that occurred prior to a full expedited hearing. Thus, in that situation, a trial court may not adopt a prima facie inference that the relocation is necessarily in the child's best interest, and it may not as a result, require the party opposing relocation to bear the burden of rebutting such an inference.").

Nevertheless, in accordance with B.K.M., the trial court was permitted to consider, and did so as discussed below, evidence from the period during Child's relocation to Pennsylvania when it applied and analyzed the necessary factors provided by Sections 5328(a) and 5337(h) with regard to custody and relocation matters. Id. at 175. Furthermore, with respect to Section 4109(c), we find Mother's argument is specious as there is no evidence that the trial court considered Mother's absence, by reason of deployment, in determining the best interests of Child. See Trial Court Opinion, 3/28/2013, at 16-20. Accordingly, we conclude that Mother's third argument fails.

In her fourth claim, Mother contends the court erred in failing to consider or properly apply certain factors required for consideration in conducting a best interest of the child analysis. Mother's Brief at 37. Specifically, Mother argues the trial court erred in finding that factor one of Section 5328(a) is neutral as to its application to either Mother or Father because Mother complains the weight of the evidence does not support a finding that Father is more likely to encourage and permit frequent contact between Child and Mother. Id. at 39. She points to the following to support her contention: (1) Father failed to communicate with Mother the entire time Mother was in Korea; (2) during the summer of 2012, Father would not allow Mother's parents to have custody of Child for a two-month period, which prevented Child from seeing Mother via Skype during that time; (3) Father admitted to not taking Child to the doctor during the first two years of Child's life and placed the blame on the maternal grandmother for making medical appointments that were inconvenient for Father to keep; (4) Father was uncommunicative with Mother or maternal grandmother with respect to Child. Id. at 39-41. Moreover, Mother contends the trial court erred in finding, with regard to factor four of Section 5328, that placing custody with Father would provide more stability and continuity for Child as this finding was not supported by the evidence. She points to the following evidence: (1) Father has moved four times since Child's birth; (2) Father intended to place Child in daycare, thereby eliminating maternal grandmother from Child's daily life; (3) Mother was the party more likely to promote a relationship with Father. Additionally, Mother asserts the court abused its discretion with regard to factor ten of Section 5328 in finding that Father would be more likely to attend to the daily physical, emotional, developmental, and educational needs of Child because the record does not support that finding where maternal grandmother cared for Child more than 50% of the time that Child was in Pennsylvania. Lastly, Mother argues the court abused its discretion with regard to factor 13 of Section 5328 in finding that Father was more willing to cooperate with Mother because such a finding was not supported by the record.

The trial court set forth its rationale for awarding custody to Father in applying the factors enumerated in Section 5328 as follows:

The Court finds that both parties are likely to encourage and permit frequent and continuing contact between the child and the other party. The Father was always willing to let the maternal grandparents take [Child] on vacations and he allowed them to help in the daily care of [Child] when Mother was stationed in Korea. When Mother got a three week leave from her military duty in August 2012 Father let Mother be with [Child]. Likewise, when Mother was stationed in North Carolina she worked with Father in making sure that [Child] would come to Pennsylvania to spend time with Father and maternal grandparents.
The Court has previously held that there is no past or present abuse committed by either party against the child. Both parents have performed significant parental duties on behalf of the child. When the child lived with Mother in North Carolina she performed parental duties although there was testimony that she had a nanny help her perform the parental duties for [Child]. Father performed the parental duties when he had custody of the child in Pennsylvania during the first two years of her life and also during this past year when Mother was stationed in Korea. There was also testimony that maternal grandparents would perform a great deal of the parental duties on behalf of Father.
The Court finds that both parents have performed significant parental duties on behalf of [Child] and both parents have always been very active parents in [Child]'s life growing up. It is very important for a single parent to have family available to assist a parent in caring for a young child. Both parents are willing to perform the parental duties necessary to raise [Child] but it is a huge advantage for Father that when [Child] is in Pennsylvania that he has not only his family but maternal grandparents who are able to take care of all of [Child]'s needs.
The Court finds that the need for stability and continuity in a child's education, family life and community and the availability of extended family favor [Child] to continue to live in Pennsylvania. Father intends to enroll [Child] in day care and use his sister and [the paternal grandfather] as a resource to help raise [Child]. [Child] will also be able to spend significant time with maternal grandparents and the rest of Mother's extended family. We believe that [Child] staying in Pennsylvania where both Father and maternal grandparents reside in close proximity provides the most stability for [Child].
When the child is in Pennsylvania [she] can spend significant time with Father and Father's family. Also, when Mother was in Korea and the child resided in Pennsylvania with Father she was able to spend significant time with her maternal grandparents and form a close bond with her maternal grandparents. Although there was testimony that the child would sometimes be reluctant to go with Father between visits Father has always expressed an interest to be actively involved in the child's life and the child is at too young of an age to make a judgment as to where she wants to reside. The child has no sibling relations to be considered but her cousins, grandparents and aunt are in Pennsylvania.
The Court finds that there have been no attempts by either parent to turn the child against the other parent, although both parents need to do a better job of communicating with each other. It appears that both Father and Mother are reluctant to communicate with each other and they must do so for the best interest of [Child]. Father testified that he now has a computer and is willing to allow [Child] to Skype with Mother while she is in Germany. Likewise, it is important that when Mother has [Child] in Germany she allow Father the opportunity to Skype with [Child].
The Court finds both parents are likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the emotional needs of the child and both parties are likely to attend to the daily physical, emotional development, educational and special needs of the child. We find that with [Child] being in Pennsylvania with Father, maternal grandparents and extended family she will continue to thrive.
The Father's residence in New Ringgold, Schuylkill County, Pennsylvania and Mother's army base in Wiesbaden, Germany is several thousand miles away and is the reason the Court must consider whether it is in the best interest of [Child] to relocate to Germany with her Mother. Although Mother and Father live in two separate countries it is very important that Mother's family and in particular the maternal grandparents who have been instrumental in [Child]'s life since birth live in Kempton, Berks County, which is in close proximity to Father's residence.
The Court finds that both parties are able to care for the child if they have primary custody and both parties are able to make appropriate child care arrangements. Father testified that his direct family and the maternal grandparents would be used to help him to care for [Child]. Mother's testimony was that the Army base in Germany would provide her with whatever services are necessary to take care of [Child]. We believe that Father with his family and maternal grandparents in Pennsylvania would be able to provide the best care for [Child].
We find that [Child] has done well this past year in her current living arrangement with Father and maternal grandparents taking care of her. We believe that the current living arrangement that [Child] has in Pennsylvania with Father, Father's family and with the maternal grandparents is in [Child]'s best interest and should continue.
The primary factor in making this decision is that in Pennsylvania there is family from both sides that would be available to assist Father and also would be there for [Child]. However, the Court also finds that it is important to [Child]'s development that she also gets to spend significant amounts of time with Mother in Germany.

Trial Court Opinion, 3/28/2013, at 16-20.

Keeping our standard of review in mind, we must defer to the trial court's credibility and weight determinations. See M.J.M., 63 A.3d at 334. Despite Mother's contentions, the court found that both parties needed to work on their communication skills and that Father does provide stability to Child based largely on his close proximity to maternal grandparents. Moreover, the court found that Father was an involved parent and actively promoted Child's relationship with Mother and the maternal grandparents. Most importantly, the court's rationale focused on the fact that it was in the best interest of Child to reside in Pennsylvania because of the strong familial support system that Father would have with respect to his family and the maternal grandparents. We conclude that in light of the circumstances, including the age of the Child, it was not unreasonable for the court to impart primary physical custody with Father. Accordingly, we discern no abuse of discretion on the part of the trial court and conclude Mother's fourth argument fails.

In Mother's final argument, she asserts the trial court erred by failing to properly analyze the factors concerning relocation pursuant to Section 5337(h). Mother's Brief at 44. With respect to relocation factors one, two, three, and five, Mother reiterates her arguments stated above with respect to the corresponding Section 5328 custody factors. Id. She also argues that with regard to relocation factor seven, the court failed to consider whether relocation of Child would enhance the general quality of life for Child, including the emotional benefit of having her mother in her life. Id. at 45.

We are constrained to disagree. Based on our analysis above, we need not address Mother's contentions regarding relocation factors one, two, three, and five. As a result, we will focus on relocation factor seven. We note that, in light of the comprehensive opinion provided in support of its determination, the trial court recognized the emotional benefit of Child spending time with Mother in Germany, stating it believed it is in Child's best interest "that she spends as much time with both parents as possible[.]" Trial Court Opinion, 3/28/2013, at 12. Consequently, the court granted Mother the opportunity to exercise up to five months of physical custody of Child. However, the court determined that this factor did not outweigh other factors in the relocation analysis, in particular the Child's relationship with Father and her maternal grandparents. Therefore, Mother's final argument fails as well.

Lastly, based on the difficult nature of this case, we would like to emphasize the following: "Child custody orders are temporary in nature and always subject to change if new circumstances affect the welfare of a child. The Commonwealth has a duty of paramount importance, to protect the child's best interests and welfare." Holler v. Smith, 928 A.2d 330, 331-32 (Pa.Super. 2007), citing Kassam v. Kassam, 811 A.2d 1023, 1025 (Pa.Super. 2002), appeal denied, 573 Pa. 704, 827 A.2d 430 (2003).

Accordingly, we affirm the trial court's order, which denied Mother's petitions for relocation and modification of custody, and granted Father primary physical custody and Mother partial physical custody of Child.

Order affirmed.

Judgment Entered.


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