Opinion
J-A02030-18 No. 1262 WDA 2017
06-26-2018
C.B.J. Appellant v. A.L.S.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered August 22, 2017
In the Court of Common Pleas of Blair County Civil Division at No(s): No. 2016- GN 3494 BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J. MEMORANDUM BY OLSON, J.:
C.B.J. ("Father") appeals from the order dated August 18, 2017, and entered August 22, 2017, permitting A.L.S. ("Mother") to relocate with the parties' minor children, R.J. (a female born in November 2003), and C.J. (a male born in February 2007) (collectively, "the Children"), from Tyrone, Pennsylvania to Arlington, Texas. The order also awarded shared legal custody to the parties, primary physical custody to Mother, and partial physical custody to Father. After careful review, we are constrained to vacate and remand.
The trial court set forth the factual background and procedural history of the appeal as follows.
[On February 9, 2017,] Mother filed a Petition for Relocation of [the Children] to Arlington, Texas. This Petition was objected to by Father. [A] custody relocation hearing was held in this matter on April 19, 2017, in which the court
interviewed the minor children and on August 18, 2017, when the court heard from [Mother] and [Father], received a stipulation as to the testimony of Mother's husband[,] and discussed the issue of Father's girlfriend having been issued a subpoena but having failed to appear.Trial Court Opinion, 9/1/17, at 1 (some internal capitalization omitted).
On August 22, 2017, the trial court entered the order permitting Mother to relocate with the Children from Tyrone, Pennsylvania to Arlington, Texas, and awarded shared legal custody, primary physical custody to Mother, and partial physical custody to Father.
We note that both parties filed cross-petitions for contempt, Mother on March 7, 2017, and Father on March 17, 2107. The trial court did not grant either contempt petition.
On September 1, 2017, Father filed a timely notice of appeal, along with a concise statement of errors complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i) and (b).
In his brief on appeal, Father raises the following issues:
[1.] Whether the trial court erred and/or abused its discretion in granting [Mother's] request to relocate with the parties' two minor children to Texas under the law and the facts and circumstances of this case[?]Father's Brief at 8.
[2.] Whether the trial court erred and/or abused its discretion in granting primary physical custody of the subject children to the [Mother] under the law and the facts and circumstances of this case[?]
We will consider Father's issues together, as they are interrelated. Father contends that the trial court erred and/or abused its discretion by granting Mother's request to relocate with the Children to Texas. Father's Brief at 15. Father states that the Children have done exceedingly well in Pennsylvania under the shared physical custody arrangement since the parties' separation, and that Mother failed to meet her burden of establishing that the Children's best interests would be served by the relocation. Id. Father asserts that a proper consideration and application of the relocation and custody factors to the circumstances of this case should have resulted in the denial of Mother's relocation request and the granting of primary physical custody to Father. Father claims that the Children's best interests would be better served "by their continuing to reside with Father in Pennsylvania where they have always lived, have thrived, and have been well cared for." Id. at 16.
In custody cases under the Child Custody Act, ("the Act"), 23 Pa.C.S.A. § 5321-5340, our standard of review is 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.C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).
We have stated:
[t]he discretion that a trial court employs in custody matters should be accorded the utmost respect, given the special nature of the proceeding and the lasting impact the result will have on the lives of the parties concerned. Indeed, the knowledge gained by a trial court in observing witnesses in a custody proceeding cannot adequately be imparted to an appellate court by a printed record.Ketterer v. Seifert , 902 A.2d 533, 540 (Pa. Super. 2006) quoting Jackson v . Beck , 858 A.2d 1250, 1254 (Pa. Super. 2004).
In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), we stated the following regarding an abuse of discretion standard:
Although we are given a broad power of review, we are constrained by an abuse of discretion standard when evaluating the court's order. An abuse of discretion is not merely an error of judgment, but if the court's judgment is manifestly unreasonable as shown by the evidence of record, discretion is abused. An abuse of discretion is also made out where it appears from a review of the record that there is no evidence to support the court's findings or that there is a capricious disbelief of evidence.Id. at 18-19 (internal quotations and citations omitted).
Regarding the definition of an abuse of discretion, this Court has stated: "[a]n abuse of discretion is not merely an error of judgment; if, in reaching a conclusion, the court overrides or misapplies the law, or the judgment exercised is shown by the record to be either manifestly unreasonable or the product of partiality, prejudice, bias or ill will, discretion has been abused." Bulgarelli v. Bulgarelli , 934 A.2d 107, 111 (Pa. Super. 2007) (quotation omitted).
With any custody case decided under the Act, the paramount concern is the best interests of the child. See 23 Pa.C.S.A. §§ 5328 and 5338.
Section 5323 of the Act provides for the following types of awards:
(a) Types of award.—After considering the factors set forth in section 5328 (relating to factors to consider when awarding custody), the court may award any of the following types of custody if it in the best interest of the child:
23 Pa.C.S.A. § 5323.(1) Shared physical custody.
(2) Primary physical custody.
(3) Partial physical custody.
(4) Sole physical custody.
(5) Supervised physical custody.
(6) Shared legal custody.
(7) Sole legal custody.
Section 5338 of the Act 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) sets forth the best interest factors that the trial court must consider. See E.D. v. M.P., 33 A.3d 73, 80-81 n.2 (Pa. Super. 2011). Trial courts are required to consider "[a]ll of the factors listed in section 5328(a) . . . when entering a custody order." J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis omitted).
Section 5328(a) of the Act provides 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.
(2.1) The information set forth in section 5329.1(a)(1) and (2) (relating to consideration of child abuse and involvement with protective services).
(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.
23 Pa.C.S.A. § 5328.(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.
Where a request for relocation of the subject child along with a parent is involved, the trial court must consider the following ten relocation factors set forth within section 5337(h) of the Act:
(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
23 Pa.C.S.A. § 5337(h). See E.D., 33 A.3d at 81-82 ("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") (emphasis in original); see also D.K. v. S.P.K., 102 A.3d 467, 477-78 (Pa. Super. 2014) (holding that trial court is to consider the section 5337(h) factors only where a parent is relocating with child).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.
Further, we have explained:
Section 5323(d) provides that a trial court "shall delineate the reasons for its decision on the record in open court or in a written opinion or order." 23 Pa.C.S.A. § 5323(d). Additionally, "section 5323(d) requires the trial court to set forth its mandatory assessment of the sixteen [Section 5328(a) custody] factors prior to the deadline by which a litigant must file a notice of appeal." C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013), appeal denied, 70 A.3d 808 (Pa. 2013). . . .A.V. v. S.T., 87 A.3d 818, 822-823 (Pa. Super. 2014).
In expressing the reasons for its decision, "there is no required amount of detail for the trial court's explanation; all that is required is that the enumerated factors are considered and that the custody decision is based on those considerations." M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013), appeal denied, 68 A.3d 909 (Pa. 2013). A court's explanation of reasons for its decision, which adequately addresses the relevant factors, complies with Section 5323(d). Id.
Similarly, with regard to relocation, in A.M.S. v. M.R.C., 70 A.3d 830 (Pa. Super. 2013), we stated:
we conclude here that sections 5323(d) and 5328 require the trial court to set forth its ratio decidendi at or near the time it issues its decision in a custody proceeding. We have held that, because the best interests of the child are the paramount concern of any custody case, the trial court must address the sixteen best interest factors of section 5328(a) and the ten relocation factors of section 5337(h). B.K.M. v. J.A.M., 50 A.3d 168, 172-75 (Pa. Super. 2012) (finding the trial court erred in failing to consider all section 5328(a) and section 5337(h) factors). Therefore, by logical necessity,
today we emphasize that our holding in C.B. (i.e., that section 5323(d) requires the trial court to delineate its reasoning at or near the time of its decision) extends to cases that involve both custody and relocation pursuant to section 5337.A.M.S., 70 A.3d at 835.
Moreover, "[w]hen a custody dispute involves a request by a party to relocate, we have explained 'there is no black letter formula that easily resolves relocation disputes; rather, custody disputes are delicate issues that must be handled on a case-by-case basis.'" C.M.K. v. K.E.M., 45 A.3d 417, 421 (Pa. Super. 2012), quoting Baldwin v . Baldwin , 710 A.2d 610, 614 (Pa. Super. 1998).
In its opinion, the trial court set forth its analysis regarding its decision to permit Mother to relocate to Texas with the Children. As will be seen, although the trial court considered almost all of the custody and relocation factors, it missed one key factor required by 23 Pa.C.S.A. § 5337(h); i.e., "[w]hether there is an established pattern of conduct of either party to promote or thwart the relationship of the child and the other party." 23 Pa.C.S.A. § 5337(h)(5). The trial court's analysis was as follows:
In a petition for relocation in custody, the [trial court] must consider and in this case has considered all relevant case law in regards to the custody relocation factors and also specific factors set out by statute. The [trial court] will proceed to address these factors in order.
1.
The nature, quality, extent of involvement and duration of the child's relationship with the party proposing to relocate
and with the non-relocating party, siblings and other significant persons in the child's life.
The testimony in this case reveals that [M]other has been the primary caregiver of these children. The testimony also revealed that Father was also extremely involved with the [C]hildren's lives and can provide excellent care to them as a caregiver. However, the court finds from testimony that although the parents have had a 50/50 custody schedule of these children, in reality they have been primarily with Mother. This is because during Father's periods of custody of the [C]hildren when he is working, the parents made the wise and adult decision that it would be preferable to have Mother watch the [C]hildren on Father's time rather than substitute a non-parent caregiver. The testimony was that [M]other feeds the [C]hildren, clothes the [C]hildren, does homework with the [C]hildren, takes care of all of their needs and is involved in their schooling. Specifically, she attends all school functions during and after school. She has been with the [C]hildren the first day of school each year. She gets the [C]hildren on and off the school bus. She takes the [C]hildren to medical appointments. She cares for them when they are sick. She picks up any needed prescriptions. She has taken them on vacations to Disney World.
The credible testimony of Mother[,] as bolstered by the child in the child interview with the court[,] is that Mother is very close to the minor child R.J., who is a girl age 13. R.J. says that she has a specific medical condition, PCOS [(Polycystic Ovarian Syndrome)]. She is not comfortable talking about this medical condition with [F]ather. This testimony is reflected in the interview of [R.J.] held April 19, 2017. . . . [R.J.] is very interested in art, and [she testified] that both of her parents are supportive of her doing art. . . .
In regards to Mother's relationship with C.J., the minor boy, she testified credibly that he is a mama's boy and that she is very close to him. She testified that [C.J.] and his friends spend a lot of time at her house. . . .
The credible testimony of Father was that he is also very involved in the [C]hildren's lives. He makes them meals. He takes them to doctor appointments. He testified credibly that he is fully able to take care of the [C]hildren. However, the
court finds from the totality of the credible testimony that the [C]hildren at this age are closer to Mother and desire to be with her.
2.
The age, developmental stage, needs of the child and the likely impact the relocation will have on the child's physical, emotional and educational development.
These children are ages 13 and 10. The [C]hildren are in the developmental stage that they are very dependent on both parents. The court finds from the totality of the credible testimony that they are more dependent on [M]other. The needs of the [Children] will be best met during the structure of the school year by [M]other[,] who will be a stay-at-home parent and can attend to their needs during the day easily. The relocation is desired by the [C]hildren and will provide them with educational opportunity equal to the educational opportunities in Pennsylvania. The court made specific inquiry as to the emotional impact on the daughter, who is an introverted child, but by the child's own testimony she is emotionally prepared for this move and desires this move and the [c]ourt can find nothing in the totality of the testimony that indicates that the move would be emotionally detrimental to either child.
3.
The feasibility of preserving the relationship between the non-relocating party and the children through suitable custody arrangements considering the logistics and financial circumstances of the parties.
The logistics in this case are that there are approximately 2,000 miles between Arlington, Texas, and Tyrone, Pennsylvania. The court's custody scheme of having the [C]hildren with [M]other during the school year and providing the [C]hildren to [F]ather during the totality of any school break over the duration of three days, and for the vast majority of the summer will preserve the relationship between the [C]hildren and the non-relocating party. The court specifically finds that both parents are financially capable of contributing to the transportation of the [C]hildren
to maintain the relationship with the other parties. Further, the court finds from the testimony that [the Children] are experienced at using electronic forms of communication and may communicate with [F]ather through Skype or cell phones which Mother testified would be provided to the [C]hildren. The court would be enforcing this promise in the context of the Custody Order.
4.
The [C]hildren's preference taking into consideration the age and maturity of the [Children].
The daughter, R.J., in this matter is 13 years of age. She is a very intelligent child. She does very well in school. In the court's interview with the child, she expressed preference to live with [M]other and stepfather in Texas. . . . One reason she expressed [for preferring] to live in Texas with [M]other is that there is an art academy that you have to enroll in. [R.J.] testified that she has been making art her whole life and wants to be successful in art and believes the art academy will help her a lot. The court asked her if she would still want to move to Texas with [M]other and stepfather if for some reason that art academy was not a possibility[,] and [R.J.] responded in the affirmative. . . . [R.J.] also cited as reasons she wanted to move to Texas[:] . . . she has grown close to a new step[-]cousin, [S.], who is close in age to her[;] . . . she had been to Arlington, Texas, and likes the physical aspects of Arlington, Texas[; and,] . . . when they went to Texas for two weeks, [M]other's husband, [L.,] her step[-]cousin, [S.,] and her [stepbrother, M.], all got along pretty well. . . . [R.J.] also indicated that those people had visited in Pennsylvania this past winter for one week. The court inquired if they are all living together in the same house for a longer period of time like a year, if she could see any tension that could arise between any of the members of the household. [R.J.] responded, "No. Well, maybe over small things like who ate somebody else's pie". . . . The child has a good opinion of her stepfather and believes that he treats her with "respect and like a person." By that she means that he listens to her and allows her to state her opinion and doesn't treat her like she is a child. [R.J.'s] testimony was
credible and maturely expressed for her age. The court believes that it can take her preference into account. . . .
The minor child, C.J., at age 10[,] also expressed preference to move to Texas saying he would be okay with moving to Texas because he has his stepbrother and stepdad there. . . . The court notes this preference but cannot take this child's preference into account when making a decision in the case because of his age and lack of maturity.
5.
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.
In this case the mother is seeking the relocation. She seeks the relocation for the purpose of living with her husband of one year. Thus, the relocation would accrue to Mother's emotional benefit by letting her live with her husband and would accrue to Mother's financial benefit. Currently Mother is struggling financially. She has a house provided by her father which he can no longer afford to provide her, and she works for him in his store. If she relocates to Arlington, Texas, her husband works for the Lockheed Martin Corporation as an engineer and has an annual income that would allow her to be a stay-at-home mother.
6.
Whether the relocation will enhance the general quality of life for the [C]hildren, including but not limited to, financial or emotional benefit or educational opportunity.
The court finds in this case that the [C]hildren would benefit emotionally by the relocation. This is because they are very close to [Mother,] who has been their primary caretaker, and because they have both expressed a desire to relocate and an optimism that the relocation will be a good opportunity for them. The court finds that the educational opportunities for the minor child, C.J., are equal in Pennsylvania; however, the court does find that the educational opportunities for the child, R.J., would be superior in Texas if she is able to obtain
admission to the art academy. Financially, the [C]hildren will benefit by [Mother] having better finances.
7.
The reasons and motivation of each party for seeking or opposing the relocation.
The court finds that both parties have good reasons. In [Mother's] case[, her reason] for seeking the relocation [is] to be united with her husband, and perhaps to provide her daughter an opportunity to go to an art academy as well as the opportunity to be financially better off. [Father's] reasons for opposing the relocation are also good reasons in that he feels that his bond with the minor children will suffer if the relocation occurs.
8.
The present and past abuse committed by a party or a member of the party's household and whether there is a continued risk of harm to the child or an abused party.
The record reveals that Mother obtained a Protection from Abuse [("PFA")] Order with Father as the named defendant in 2009. In the petition she alleged that [] Father hit her and abused her. The parties split up after that [PFA] Order was entered. For a time[, Father] had supervised visits with the [C]hildren. That was ended by agreement of [Mother]. A no-contact order was entered at that time[,] and the PFA was dismissed. These events occurred in 2009. [Mother] has alleged no abuse of her by [Father] since 2009. [Mother] has never alleged that [Father] has abused the [C]hildren. There is no credible evidence of record that Father would be abusive to the [C]hildren. Testimony that tangentially bears on the issue of whether [Father] would be abusive to the [C]hildren was testimony of Father having verbal domestic fights with his current girlfriend. The court finds that there were verbal fights between [Father] and the girlfriend. The court finds beyond [Mother's] drawing the [C]hildren's attention to these fights, there was no effect on the [C]hildren from the fights. In the child interview with R.J., she stated that she feels afraid or uncomfortable when [Father] talks to her about court. . . . However, the court finds that this testimony was
in the context of the child being angry at [Father] from snooping on her social media posts. The court specifically finds that the record of child interview . . . reveals that [Mother] has spoken to the minor child about [Father's] personal life in a way that is not appropriate.
9.
Any other factor affecting the best interest of the child.
The health of all of these parties is good. No party has special needs. There are no extreme drug or alcohol issues alleged by either party, although Mother[,] in testimony[,] questioned the extent of Father's alcohol use. There is no credible testimony of record that use of alcohol by Father would endanger the [C]hildren in any way. The court finds that the [C]hildren have extended family of Father's with whom they interact. The court finds that this family bond can be maintained during the summertime when Father has the custody of the [C]hildren. The court further finds that the [C]hildren confide in Mother and are very close to her. Although they do love [Father], their bond with [Mother] is stronger at this age.
For the foregoing reasons the court entered its Order in Custody Relocation.
Although the narrow issue before the court is relocation, the court feels that it is always appropriate to further address the sixteen custody factors set out in the statute as follows:
1.
Which party is more likely to encourage and permit frequent and continuing contact with the other party?
The court finds that [Father] is more likely to encourage and permit contact between the [C]hildren and [Mother].
2.
The present and past abusive conduct by a party or a member of a party's household and which party is likely to provide adequate physical safeguards.
This factor was discussed in the court's Custody Relocation Order. The court finds no credible testimony that any party will be abusive to the [C]hildren. The court notes that it did not have the benefit of interviewing Father's girlfriend since she did not respond to her subpoena in this matter. This would hamper the court's ability in the future to do a custody order that would place the [C]hildren in a household that was a permanent household with Father and girlfriend unless further record about her safety around the [C]hildren was established.
3.
The parental duties performed by each party on behalf of the child.
The parties are equally capable of performing parental duties.
4.
The need for stability and continuity in the child's education, family life and community life.
The court believes that the [C]hildren can achieve stability in their home after relocation as described in its opinion about relocation.
5.
The availability of an extended family.
The court has addressed the [C]hildren's ability to see Father's extended family during his periods of partial custody[,] which include each holiday and the extended periods of time in the summer.
6.
The child's relationships with siblings.
Under the court's order, these two siblings will be together whether they are with [Mother] or with [Father]; they have a stepbrother in Texas whose relationship with them will be preserved during the school year.
7.
The well-reasoned preference of the child based upon the child's maturity and judgment.
As stated in the court's relocation order, the court did take into account the mature and well-reasoned preference of R.J. to be relocated to Texas. The court found that the child, C.J., was not of sufficient maturity and judgment for the court to consider his preference.
8.
Except in cases of domestic violence, the attempts of one parent to turn the child against the other parent.
In this case the [c]ourt finds that [M]other has used bad judgment in sharing custody matters and personal matters of [F]ather's with the older child, R.J.
9.
Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child?
The court finds that at this age with the caretaking history of both [M]other and [F]ather, Mother is better able to do this right now.
10.
Which party is more likely to attend to the daily, physical, emotional, developmental, educational and special needs of the child?
The court finds that [Mother] is best able to do this at this time in the [C]hildren's lives.
11.
The proximity of the residence of the parties.
They are approximately 2,000 miles apart.Trial Court Opinion, 9/1/17, at 2-16 (internal citations and some internal capitalization omitted).
12.
Each party's ability to care for the child or ability to make childcare arrangements.
Each party is equally able to care for the [C]hildren or make childcare arrangements for them.
13.
The level of conflict between the parties.
These parties had a very good relationship until July of 2016 when Mother got remarried. Since then their communication has been strained. They are still capable of the minimal communication needed to have a shared custody order.
14.
The history of a party's drug or alcohol abuse.
This is not a factor in this case.
15.
The mental and physical condition of a party.
This is not a factor in this case.
16.
Any other factor deemed relevant by the court.
The court's decision in this matter was based primarily on the relocation factors as that was the issue presented to the court.
A review of the above reveals that the trial court failed to consider the factor listed in Section 5337(h)(5): "[w]hether there is an established pattern of conduct of either party to promote or thwart the relationship of [the Children] and the other party." 23 Pa.C.S.A. § 5337(h)(5). Moreover, there is evidence that Mother has, in fact, acted to thwart the relationship between Father and the Children. See , e.g., N.T. Hearing, 8/18/17, at 128-143. (Mother was evasive as to when Children would return when in Mother's custody; Mother left information up on computer about custody and relocation for R.J. to see; Mother would not provide Father with the name of the doctor who was treating R.J.; Father repeatedly asked for Children to come over for dinner and Mother refused requests; Mother would not permit Father to do homework with C.J.; Mother told R.J. that Father abused women causing R.J. to fear that Father would abuse her.) As we held in E.D., "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." E.D., 33 A.3d at 81 (emphasis in original). Further, where "it cannot be ascertained from the record on appeal whether the trial court considered all of the section 5337(h) factors in reaching its decision," we are required to vacate that trial court's order and remand for further proceedings. Id. at 81-82.
In the case at bar, "it cannot be ascertained from the record on appeal whether the trial court considered . . . [the factor of w]hether there is an established pattern of conduct of either party to promote or thwart the relationship of [the Children] and the other party." See id. Therefore, we must vacate and remand for further proceedings.,
We decline Mother's request in her brief for us to dismiss Father's appeal for failure to comply with the provisions of Pa.R.A.P. 2154 (regarding the designation of the content of reproduced records). See Mother's Brief at 10.
As this case involves the lives of two children and the custody rights of their parents, we would encourage the trial court to conduct the review as quickly as possible. --------
Order vacated. Case remanded. Jurisdiction relinquished.
Judge Kunselman joins this Memorandum.
Judge Bowes files a Dissenting Memorandum. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 6/26/2018