M.P. v. M.P.

• Decision Date: 05 October 2012
• Parties: M.P., Appellant v. M.P., Appellee.
• Court: Pennsylvania Superior Court

54 A.3d 950

2012 PA Super 215

M.P., Appellant

v.M.P., Appellee.

Superior Court of Pennsylvania.

Argued Aug. 21, 2012.

Filed Oct. 5, 2012.

Judith C. Lewis, Scranton, for appellant.

David J. Ratchford, Scranton, for appellee.

BEFORE: STEVENS, P.J., BENDER, J., and GANTMAN, J.

OPINION BY BENDER, 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.¹ 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.² 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 testifiedat 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.³

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, 11/5/11.⁴ 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)?

Mother's brief at 4.

In addressing custody issues, we are guided by the following:

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.

Durning v. Balent/Kurdilla, 19 A.3d 1125, 1128 (Pa.Super.2011) (quoting A.D. v. M.A.B., 989 A.2d 32, 35–36 (Pa.Super.2010) (internal quotations and citations omitted)).

Initially, Mother asserts that “she has been the primary caretaker of the minor child since [the child's] birth” and “has always acted in the best interest of the child and made decisions that place priority on the needs and safety of the child.” Mother's brief at 10. Mother particularly notes that Father had not seen the child for eighteen months and had agreed “that Mother would have sole legal custody pertaining to medical, educational, and religious decisions affecting the minor child.” Id. More particularly, Mother contends that the court's decision amounted to a de facto award of shared legal custody that contravened the parties' agreement. We agree.

We first note that “legal custody” is defined as “[t]he right to make major decisions on behalf of the child, including, but not limited to, medical, religious and educational decisions,” and “sole legal custody” is “[t]he right of one individual to exclusive legal custody of the child.” 23 Pa.C.S. § 5322(a). Moreover, to respond to Mother's argument, we rely on Hill v. Hill, 422 Pa.Super. 533, 619 A.2d 1086 (1993). In Hill, the trial court awarded the parents shared legal custody, but directed that “[i]n the event of disagreement, [m]other's preference shall prevail.” Id. at 1088. On appeal to this Court, the father asserted that the trial court's decision essentially granted the mother sole legal custody. This Court recognized that although the trial court sought to grant the parties shared legal custody, it attempted to forestall their return to court. However, we held that the father was given shared legal custody “in name only [but] deprived ... of a legal remedy because he was already awarded ‘shared legal custody.’ ” Id. We further recognized that “[t]here is no provision in the law for the order the court issued.” Id. In other words, “the concept of shared legal custody does not contain the principle of giving one parent final authority in the event of a dispute.” Id. at 1089.

Here, the opposite scenario is presented. When one parent has sole legal custody, that parent has final authority to make decisions, regardless of whether the other parent agrees or disagrees. Instantly, the trial court allowed Father to counter Mother's decision to take the child to Ecuador for three weeks, which in essence gave him the control, i.e., the power that he would have if he had shared legal custody. This decision by the trial court was made despite Father's failure to exercise his supervised visitation for eighteen months, a schedule that was allowed pursuant to the PFA order. He had not seen the child during this entire period and had no input into any decision made by Mother. Moreover, Father's agreement that Mother should have sole legal custody in effect emphasizes that he believes Mother has made proper decisions regarding the child's best interests. Thus, based on the dictates of Hill and our discussion supra, we conclude that the court abused its discretion by acknowledging that Mother had sole legal custody, but then prohibiting her traveling with the child to Ecuador.⁵

Next, we review Mother's second and third arguments, which attack the court's reliance on evidence outside the record and its failure to provide a rationale for its denial of Mother's petition. We conclude that Mother should not have been denied her right to take the child for a three-week trip to Ecuador for the following reasons. Specifically, the court stated that “Mother failed to provide any assurance that a custody order entered by the Court would be afforded comity by an Ecuadorian Court, either by way of a mirror order or through...