J-A01009-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    R.H.                                       :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    S.G.                                       :
                                               :
                       Appellant               :   No. 2273 EDA 2019

                   Appeal from the Order Entered July 9, 2019
     In the Court of Common Pleas of Monroe County Civil Division at No(s):
                              No. 3047 CV 2014,
                                No. 90 DR 2014


BEFORE:      NICHOLS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY NICHOLS, J.:                                FILED JUNE 08, 2020

        S.G. (Mother) appeals the order denying her petition for relocation to

Philadelphia as moot and awarding Mother and R.H. (Father) shared physical

and legal custody of their minor sons, J.H., born in May 2004, and E.H., born

in August 2007 (collectively, Children). The order also directed that Father

would have primary physical custody of Children if Mother moved out of

Children’s current school district. We affirm.

        By way of background, Mother and Father were married and had four

children: M.H. and R.H., Jr., who were both over eighteen years old and not

the subjects of the instant custody order, and Children. Mother and Father

separated in 2014, and their divorce became final in 2018. Mother and Father

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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have shared legal custody of Children, and Mother has had primary physical

custody of Children with Father having partial physical custody. Mother and

Father currently live in the East Stroudsburg (South) school district.

       In June 2017, Mother filed a notice of a proposed relocation to Delaware.

Father objected and filed a counter-affidavit. Father also filed petitions for

contempt, which the trial court denied, as well as a petition to modify custody.

Following a hearing, the trial court denied Mother’s request for relocation and

Father’s petition for modification.1 See Order, 12/6/17.

       On January 16, 2019, Mother filed a pro se notice of proposed relocation

to Philadelphia, indicating that she was getting married in August 2019, and

intended to purchase a home. Father objected pro se and filed a counter-

affidavit.2   The trial court scheduled a hearing on Mother’s request for




____________________________________________


1 Mother and Father were both acting pro se when Mother requested, and
Father opposed, relocation. Additionally, both Mother and Father filed pro se
petitions for contempt following the trial court’s denial of Mother’s petition to
relocate to Delaware. On May 30, 2018, the trial court entered an interim
order awarding Mother primary physical custody of Children and Father partial
physical custody on the first, second, and fourth weekends of every month
from Friday at 8:00 p.m. to Sunday at 8:00 p.m. See Order, 5/30/18.

2Father filed also filed pro se petitions for modification of custody. On March
21, 2019, the trial court entered an interim order awarding Mother primary
physical custody of Children and Father partial physical custody on the first,
second, and fourth weekends of every month from Thursday at 8:00 p.m. to
Sunday at 8:00 p.m. See Order, 3/21/19.




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relocation for April 22, 2019. Father obtained counsel before the hearing,3

while Mother remained pro se.

        On April 22, 2019, the day of the hearing, Father’s counsel filed a

petition for modification seeking primary custody of Children. Pet. to Modify

Custody, 4/22/19, at 1 (unpaginated). In his petition, Father asserted that

Mother intended to relocate to Philadelphia, and that Father was “gainfully

employed and . . . prepared to take full custody of [Children] if Mother is intent

on leaving Monroe County.” Id. at 2.

        The trial court commenced the April 22, 2019 hearing at which Father

appeared with counsel and Mother appeared pro se. Mother stated that there

was “change in the relocation,” and she no longer wanted to move to

Philadelphia, and that she was instead planning to “move within Monroe

County.” N.T., 4/22/19, at 4. Mother asserted that she filed papers with the

court the week before the hearing and submitted them to the judge’s

chambers.4 When the trial court asked whether she intended to move out of

the East Stroudsburg (South) school district, Mother responded, “It might not

be. I might be looking potentially towards Pocono Mountain West or so.” Id.

at 10.     Mother explained that she had some information regarding her

intended move, but she wanted to “first make sure all was set” with respect


____________________________________________


3   Father’s counsel stated that Father retained her one week before the hearing.

4The record does not contain filings associated with Mother’s planned move
within Monroe County.

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to custody before she “started putting down a lease and things like that.” Id.

at 11.

         The trial court thereafter heard testimony from Father regarding his

petition for modification of custody and from Mother regarding her possible

move to the Pocono Mountain West school district. Mother testified that she

believed Pocono Mountain West school district was equivalent to the East

Stroudsburg (South) school district. The trial court also examined Children

individually.   Children both expressed a preference to live with Father and

remain in the East Stroudsburg (South) school district.         The trial court

permitted the parties to submit additional evidence regarding the two school

districts, but the record contains no indication that Mother or Father presented

the trial court with further evidence.

         By an opinion and order dated July 8, 2019, and entered July 9, 2019,

the trial court concluded that Mother’s relocation request was moot because

she stated she no longer intended to move to Philadelphia and only wished to

move within Monroe County.       The trial court reviewed the sixteen custody

factors under 23 Pa.C.S. § 5328 and maintained shared legal custody of

Children between Mother and Father.        The trial court further awarded the

parties shared physical custody, with Mother retaining primary physical

custody of Children “provided she resides in the East Stroudsburg (South)

School District.” Op. & Order, 7/9/19, at 13. Father’s partial custody schedule

included the first, second, and fourth weekends of the month from Friday at

6:00 p.m. to Sunday at 6:00 p.m., and every Wednesday from 5:00 p.m. to

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8:00 p.m.    The order directed that if Mother failed to reside in the East

Stroudsburg (South) school district, then primary physical custody would

immediately be transferred to Father, with Mother assuming partial custody

under the schedule set for Father’s partial custody. Id.

      Mother timely filed a counseled notice of appeal on August 7, 2019, and

a statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i) and (b).    Although the trial court awarded Mother primary

custody in the event she remained in East Stroudsburg (South) school district,

Mother raised nine issues claiming that the trial court erred in failing to award

her primary custody of Children.

      The trial court filed a Rule 1925(a) opinion noting in relevant part that

it did not grant Father’s petition to modify custody seeking primary custody.

Trial Ct. Op., 8/23/19, at 1-2. The trial court emphasized that it

      considered and determined that it was in [Children’s] best interest
      to remain in their current school district. Both [Children] are
      teenagers and expressed a strong desire to avoid a change in
      school. With that determination, Mother could remain in the same
      school district or, if she wished to relocate, primary physical
      custody would revert to Father who lives in [Children’s] current
      school district.

Trial Ct. Op., 8/23/19, at 2.

      Mother raises the following issues on appeal:

      The [t]rial [c]ourt erred and abused its discretion and failed to
      properly weigh or consider significant evidence of record when it
      awarded primary physical custody of [Children] to Father.

Mother’s Brief at 6.


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      Mother challenges the trial court’s determination that Father would

assume primary physical custody if she moved out of the East Stroudsburg

(South) school district. Mother asserts that this alternative custody provision

was

      largely based on a conclusion that [Children] had expressed a
      strong preference for remaining in their home school district and
      for living with Father, based, at least in significant part, on the
      older child’s desire to participate in sporting activities and upon
      [Father’s] testimony and promise that he would be an appropriate
      caregiver with respect to supervising [Children’s] academic
      performance.

Id. at 8.

      Mother claims that

      Father has an extremely poor track record and had shown little to
      no real interest in taking any responsibility for [Children’s]
      academic performance.          Moreover, [Children’s] expressed
      preference for residing with Father is not well-reasoned and does
      not ultimately serve their best interest.         Specifically, the
      [Children] appeared to base their preference on a desire to be
      involved in sporting activities and based on friendships they had
      in their neighborhood. Those preferences, which appear to short
      change academics, when weighed against Mother’s credible and
      compelling reasons for wanting to move to a new neighborhood
      should not have been controlling. In short, [Children’s] long-term
      best interests are best served by insuring that Mother remain the
      primary caregiver, especially where academic performance is
      concerned.

Id.

      Mother argues that the trial court erred in evaluating numerous custody

factors.    Referring to Section 5323(a)(3) and (4), respectively, Mother

contends that the trial court erred in concluding that both parties were


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involved with Children’s care, education, and activities and that both parties

could provide for stability and continuity in their education, family life, and

community life. Mother asserts that the record instead demonstrated that she

was primarily involved in attending to Children’s daily needs and has

“historically been the only parent who has been involved in any meaningful

capacity with [Children’s] school and academic performance.”            Id. at 9.

According to Mother, “Father does not attend parent/teacher conferences and

has never communicated with [Children’s] teachers regarding their grades or

academic performance.” Id. at 9-10 (record citations omitted).

      Discussing Section 5323(a)(12), Mother contends that the trial court

erred in its consideration of the parties’ availability to care for Children or

make appropriate child care arrangements. Mother argues that the trial court

erred in concluding that this factor favored Father when Father testified that

he relied on a sibling to care for and transport Children. Mother testified that

the sibling “is not reliable, drives in an unsafe fashion with Children . . . , and

should not be depended upon to provide the nature and extent of child care

for which [the sibling] is utilized by [Father].”    Id. at 10 (record citations

omitted).

      Moreover, Mother asserts that the trial court erred in finding that Section

5323(a)(13), which is related to the level of conflict between the parties, was

equally balanced between the parties.        Mother claims that the trial court

ignored evidence of a history of a protection from abuse order against Father




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“relating to actual physical abuse by him of her in the presence of [Children].”

Id. at 11.

      Mother further contends that Children’s long-term best interests,

including academic, favor Mother being awarded primary physical custody

outside the East Stroudsburg (South) school district. Id. at 7-8. She argues:

      In this particular case[,] the [t]rial [c]ourt interviewed [Children]
      and noted that both expressed a preference for remaining in their
      current school. The [c]ourt advances no argument and makes no
      specific findings as to whether the school in question is better or
      worse than the school Mother would enroll them in if allowed to
      move with them as she requests. Based on the overwhelming
      evidence of record that Mother has been the consistent primary
      caregiver for most of the [C]hildren’s lives and that she is the only
      parent who will, in any meaningful fashion, make the necessary
      and tough decisions regarding the academic performance, it is
      respectfully submitted that the [t]rial [c]ourt over[]emphasized
      continuity in this particular school environment and[,] to the
      extent that the decision to award primary physical custody to
      Father in the event Mother moves out of the school district, that
      decision constitutes over[]emphasis on that particular factor and
      an abuse of discretion.

Id. at 12-14. Mother points to her role as the parent more concerned with

school performance and willing to make tough, unpopular decisions, and she

suggests this is more important than school selection. Id. at 14, 18. Mother

further questions the Children’s motives for their preferences, given their

desire to participate in sports.   Id. at 15-16.    Lastly, Mother asserts her

rationale for moving was to secure a larger home in an environment away

from drug dealers, which she argues is in the Children’s future best interests,

despite their current desires. Id. at 16-18.



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        Father responds in his pro se brief that the trial court did not abuse its

discretion when imposing an alternative custody provision. See Father’s Brief

at 8.    Father notes that he has been an active caregiver to Children and

attended Children’s school and extracurricular events. Id. at 4-5. He asserts

that he has attempted to work with Mother to improve Children’s academics.

Id. at 5. He states there is no record of abuse from 1996 to 2014. Id. at 5-

6. Father asserts that Mother physically and verbally abused three of the four

children. Id. at 6. He emphasizes that Children expressed a preference to

reside with him and that he can provide Children a safe residence while

maintaining continuity in Children’s preferred school district. Id. at 7.

        Initially, we note that in cases under the Child Custody Act (the Act), 23

Pa.C.S. §§ 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.

        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) (citation omitted).

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     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 is   in the best interest of the child:

        (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.

23 Pa.C.S. § 5323(a).

     Section 5328(a) sets forth the best-interest factors that the trial court

must consider in making a custody award. See E.D. v. M.P., 33 A.3d 73, 79-

80 & 79 n.2 (Pa. Super. 2011). Those factors include:

     (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.


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      (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).

      We have stated that the trial court is required to consider all of the

Section 5328(a) factors in entering a custody order. J.R.M. v. J.E.A., 33 A.3d

647, 652 (Pa. Super. 2011).       Although the trial court is required to give

“weighted consideration to those factors which affect the safety of the child”



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pursuant to 23 Pa.C.S. § 5328(a), we have acknowledged that the amount of

weight a court gives any one factor is almost entirely discretionary. M.J.M.,

63 A.3d at 339. As we stated in M.J.M.:

        It is within the trial court’s purview as the finder of fact to
        determine which factors are most salient and critical in
        each particular case. See A.D. v. M.A.B., 989 A.2d 32, 35-36
        (Pa. Super. 2010) (“In reviewing a custody order . . . 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.”). Our decision here does
        not change that.

Id. (emphasis added).

        When a relocation is at issue in a case, the court must also consider

additional factors.5 23 Pa.C.S. § 5337(h). Section 5322 defines relocation as
____________________________________________


5   Those factors are:

        (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.



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“[a] change in a residence of the child which significantly impairs the ability

of a nonrelocating party to exercise custodial rights.” 23 Pa.C.S. § 5322. If

a relocation is at issue, the party seeking relocation bears the burden of

establishing that the relocation is in a child’s best interests under Section

5337(h). 23 Pa.C.S. § 5337(i)(1).

       In S.J.S. v. M.J.S., 76 A.3d 541 (Pa. Super. 2013), for example, the

trial court denied a mother’s request to relocate and “issued a final custody

order providing that [the m]other would retain primary custody if she

remained in Erie, [Pennsylvania,] but that if [the m]other chose to relocate,

[the f]ather would be awarded primary custody.” S.J.S., 76 A.3d at 544. In

that case, the mother and father agreed to a custody schedule under which

____________________________________________


       (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).

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the mother had primary custody of the children. Id. at 543. The mother then

sought to relocate from Erie to Bucks County. Id.

      After the trial court denied the mother’s request to relocate and entered

the alternative custody provision granting the father primary custody if mother

relocated to Bucks County, the mother appealed. Id. at 544. The mother

argued in part that the trial court erred in failing to make a custody

determination first and then undertaking a relocation analysis rather than

“combining the considerations and rendering an order that awarded primary

custody contingent on [her] ultimate decision on where she would reside.”

Id. at 549. This Court found no error in the trial court’s decision or merit to

the mother’s argument, noting that the trial court appropriately addressed the

relocation factors “because it recognized that the custody arrangement was in

dispute only in the event Mother chose to relocate.” Id. at 550. Ultimately,

this Court affirmed the alternate or contingent custody provision finding that

the trial court appropriately considered all relevant factors relevant to the

children’s best interest. Id. at 549, 554.

      We acknowledge that the S.J.S. Court affirmed an alternative custody

provision in light of a proposed relocation by a parent. Moreover, we note

that the trial court and the parties in the present case have not cited any case

law specifically discussing a custody arrangement that was contingent on a

child’s school district. Our own research has not found any cases directly on

this point. However, as noted by Mother, there are cases involving the trial




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court’s determination of the school-related issues that may inform our review

of the trial court’s alternate custody provision.

       In S.W.D. v. S.A.R., 96 A.3d 396 (Pa. Super. 2014), the mother and

father shared legal custody and the mother had primary physical custody, with

the father having partial custody.             The parties subsequently agreed to an

informal modification of the physical custody arranged to a more equal sharing

of custodial times under a “5-2-2-5 schedule.”6             Id. at 398.   Following a

disagreement over the child’s school, the mother unilaterally enrolled the child

in the school of her choice, and the father filed a complaint for special relief,

which contested the child’s kindergarten and the change from the informal

custody arrangement. Id. The trial court determined that the child would

remain at the mother’s school of choice, but in so doing did not consider all

factors under Section 5328(a). Id. at 403.

       On appeal, the S.W.D. Court affirmed the trial court’s order regarding

the mother’s choice of school.7 Id. at 404. This Court observed:

       resolution of an otherwise ancillary matter may affect a form of
       custody and require consideration of the § 5328(a) factors. For
       instance, the choice of a child’s school may factor into a trial
       court’s decision to award a form of custody when the trial court is
       addressing a request to establish or change legal or physical
____________________________________________


6A 5-2-2-5 schedule refers to the alternating days of custody between the
parties over a two-week period.

7 The S.W.D. Court, however, vacated the portion of the order refusing to
enforce the informal 5-2-2-5 schedule. We concluded that the trial court
abused its discretion by failing to consider all of the Section 5328(a) factors
with respect to the father’s claims regarding the appropriate custody schedule.
S.W.D., 96 A.3d at 406-07.

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      custody in connection with the choice of school. One parent in a
      custody dispute may argue that he or she is entitled to primary
      physical custody because his or her residence has much better
      schools. On the other hand, many times . . . these items may
      appear as independent, discrete issues advanced by motion or
      petition that does not require a change in the form of custody.
      Although any decision requires consideration of the child’s best
      interest, only the former situation requires consideration and
      application of the § 5328(a) factors.

Id. at 403.

      The S.W.D. Court further noted:

      when parties share legal custody of a child, they may reach an
      impasse in making decisions for the child that implicate custody.
      When that happens, the parties turn to the trial court to decide
      their impasse. This type of court intervention does not affect the
      form of custody and hence, the 5328(a) best interest factors do
      not all have to be considered.

Id. at 404 (citations omitted).

      In affirming the trial court’s ruling regarding the choice of school, the

S.W.D. Court emphasized that the trial court was not required to address all

of the Section 5328(a) best interest factors. Id. We further stated:

      In making its decision, the trial court noted several factors that
      weighed in favor of attendance at [the mother’s choice of school].
      [The f]ather conceded that enrollment at [his school of choice]
      was to be temporary. The trial court found attendance there
      would not be in the best interest of [the c]hild, as it would require
      [the c]hild to change schools and not be suited to maintaining
      consistency in his life. The trial court also found that [the father’s]
      chief concern with [the m]other’s school was its distance from his
      home. While the trial court was sympathetic to this concern, on
      balance it did not find this to be weighty enough to warrant
      attendance at [the father’s school of choice]. Finally, the trial
      court found no persuasive evidence that [the c]hild would receive
      a substandard education at [the mother’s school of choice]. On



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        these findings, supported by record evidence, we cannot find an
        abuse of discretion.

Id.

        In Fox v. Garzilli, 875 A.2d 1104 (Pa. Super. 2005), the mother filed

a petition to modify custody to have the children attend the school district

where she moved following her divorce and the resolution of equitable

distribution issues.8 Fox, 875 A.2d at 1106. The mother appealed the trial

court’s denial of her motion, and this Court agreed with her that the trial court

abused its discretion. Id. at 1107-08. The Fox Court concluded that the trial

court abused its discretion in relying on the parties’ previous agreement that

the children would temporarily attend school in the father’s school district. Id.

at 1108. The Court further concluded that the record did not support the trial

court’s finding that the mother would not be burdened by having the children

attend school in the father’s school district.     Id. at 1110.   The Fox Court

further noted that the trial court improperly relied on hearsay testimony

regarding the children’s preference to remain in their current school and

emphasized that while the continuity of the children’s school was important,

it was not a controlling factor under the circumstances of that case. Id. at

1110-11.

        In S.S. v. K.F., 189 A.3d 1093 (Pa. Super. 2018), this Court vacated a

trial court’s decision to maintain the children’s current school district even


____________________________________________


8   In Fox, both parents’ residences were in the same county.


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though the mother requested to relocate to a different county and the father

did not live in the children’s current school district. S.S., 189 A.3d at 1094.

Specifically, in that case, the mother resided in the Pennsbury school district

in Bucks County, where the older children were enrolled. Id. at 1094-95.

However, the mother asserted that she lost her job and did not renew her

lease on her residence in Bucks County. Id. at 1095. Moreover, the mother

requested that she intended to move from Bucks County to Chester County,

and have the children attend school in Chester County. Id. at 1094-95. The

father, who lived in the Bensalem school district in Bucks County, opposed the

mother’s relocation.   Id.   The father requested that the court award him

primary physical custody and permit him to enroll the children in the Bensalem

school district. Id. Additionally, in the event the court found the Bensalem

school district to be inappropriate for the children, the father asserted that he

would sell his current residence and move to the Pennsbury school district.

Id.

      The trial court in S.S. denied the mother’s request to relocate under

Section 5337, and following a discussion of the custody factors under Section

5328(a), awarded the parties equal physical custody. Id. at 1095-96. As to

the children’s school, the court directed that the children remain in Pennsbury

school district, concluding that educational stability was in the children’s best

interests. Id. at 1096. In support of that directive, the trial court ultimately

required that the parties arrange their residential situations so that the

children could remain in the Pennsbury school district or pay tuition for the

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Pennsbury school district in equal shares. Id. The mother and father cross-

appealed the trial court’s order regarding the children’s school and the

allocation of tuition. Id. at 1097.

      The S.S. Court vacated the trial court’s order. The Court reiterated that

      [w]hen parties cannot resolve a dispute about where to educate
      their children, the court may act as arbiter to decide that issue,
      based on the best interests of the children. If the court is
      addressing a request to modify custody in conjunction with the
      choice of school, the court’s choice of school may factor into the
      court’s custody decision. The court’s choice of school may in fact
      require it to modify the parties’ physical custody award, in
      particular “when the parties live far apart, making it impractical
      for one parent to transport the child to school.” Continuity in an
      educational environment is an important, but not controlling,
      factor to be considered by the court in making a school or custody
      decision, and over-emphasis on this factor may constitute an
      abuse of discretion.

      A court may order parents to pay for the cost of school tuition as
      an additional expense to the standard child support award.
      However, the court may order a party to pay the cost of tuition
      only after the court determines that doing so is reasonable in light
      of the parties’ respective incomes and expenses. An order
      directing a party to pay for tuition, like any support order, “must
      be fair, non-confiscatory and attendant to the circumstances of
      the parties.”

                                  *     *      *

      [I]n allowing [the m]other to move to Chester County, but
      ordering the [c]hildren to stay enrolled in Pennsbury School
      District, the court created an additional expense that neither party
      requested or expected. And, because at the time of the hearing,
      the court considered school choice as a custody issue only, it made
      scarce inquiry into the parties’ financial situations. It made no
      finding that the tuition expense was “reasonable,” and on this
      record, we fail to see how it could have done so. The court also
      failed to allocate the tuition cost in accordance with the support
      statute. The court thus abused its discretion.



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      [I]t appears that the court was attempting to drive a compromise
      between the parties. However, the parties informed the court that
      they had reached no such compromise. The resultant tuition cost
      thus existed due to the court’s decision alone. The court’s choice
      of school, made without regard to the financial ramifications to the
      parties—and, by extension, to their [c]hildren—ignored the
      realities of the case.

      On remand, unless the parties request otherwise, the court must
      choose a school that does not financially burden the parties, and
      it must make its decision by considering both the relocation and
      custody factors.

Id. at 1098-00 (citations and footnotes omitted).

      The instant matter is closer to S.J.S. and unlike S.W.D. and Fox.

Although the principal dispute in this appeal involves a choice of school, the

trial court fashioned an alternate custody provision contingent on the school

district. That portion of the order impacted the form of Mother’s custody as

Mother would lose of primary custody if she moved out of Children’s school

district. See 23 Pa.C.S. § 5323(a). Compare S.J.S., 76 A.3d at 549, 554,

with S.W.D., 96 A.3d at 404, and Fox, 875 A.2d at 1109-10. Therefore, the

trial court’s decision must be supported by a consideration of the statutory

factors under Section 5328(a). See S.J.S., 76 A.3d at 549, 554; see also

S.S., 189 A.3d at 1099-00.     However, because there is no indication that

Mother’s proposed move constituted a relocation within the meaning of the

Section 5322, there was no requirement for the trial court to consider the

factors in Section 5337. Cf. S.J.S., 76 A.3d at 549, 554; cf. also S.S., 189

A.3d at 1099-00; Trial Ct. Op. & Order, 4/24/19, at 7 (noting that “Mother’s

proposed move will not significantly impair Father’s custody rights”).



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J-A01009-20



     In the instant case, the trial court, in its order entered following the

hearing, discussed the Section 5328(a) custody factors and found that Section

5328(a)(6) and (a)(12) favored Father, and that Section 5328 (a)(10) favored

Mother. The trial court then found the remaining factors were equal, including

Sections 5328(a)(2), (3), (4), and (13). The trial court noted:

     Factor 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.

     This factor favors neither party. There was no evidence presented
     by either party about present or past abuse and we find this factor
     remains neutral.

     Factor 3—The parental duties performed by each party on behalf
     of the child.

     This factor does not favor either party. [Children] have been well
     cared for by both parents. Although Mother has been the primary
     caregiver for [Children], both of the parties are involved with
     [Children’s] care, education and activities.

     Factor 4—The need for stability and continuity in the child’s
     education, family life and community life.

     This factor favors neither party. Both parents have been a stable
     and permanent influence in the lives of [Children]; therefore, we
     find that factor 4 favors neither party.

                                 *     *      *

     Factor 6—The child’s sibling relationships.

     This factor favors Father. [Children] live with Mother and their
     older siblings live with Father. [M.H.], [Children’s] older sister[,]
     assists Father in child care when they are in Father’s custody.
     Both [Children] indicate that they have good relationships with
     [their siblings. Children] see their older siblings on the first,

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J-A01009-20


     second, and fourth weekends of every month; we consider these
     relationships to be important and, therefore, we believe this factor
     favors Father.

                                  *     *      *

     Factor 10—Which party is more likely to attend to the daily
     physical, emotional, developmental, educational and special
     needs of the child.

     This factor favors Mother.       Mother has been providing for
     [Children] since they were born. She has taken [Children] to
     medical appointments and provided for their daily needs. While
     Father has provided for their needs when they are in his custody,
     Mother has expressed concern for [Children’s] educational needs.
     Father would like [J.H.] to be involved in sports and Mother stated
     that she would like his education to come first. Mother would not
     like [J.H.] to participate in sports unless his grades were
     adequate. We believe that the relationship both parties are
     providing emotional, developmental and education[ for Children;]
     nevertheless, we believe that this fa[vors] Mother.

     Factor 12—Each party’s availability to care for the child or ability
     to make appropriate child-care arrangements.

     This factor favors Father. Father testified that his daughter and
     eldest son live with him and help with child care. Father’s
     girlfriend . . . also provides child care for [Children]. Mother has
     not indicated that there is anyone to assist her in child care for
     [Children]. She testified that [Children] are sometimes at home
     alone until she gets home from work.                 In her Custody
     Questionnaire, entered into evidence as Defendant’s Exhibit #2,
     Mother indicates that she works Monday through Friday from 7:30
     am until 6:00 p.m. and on Saturdays from 7:30 am until 6:00
     p.m. Father testified that he works from 5:00 am until 3:00 or
     3:30 p.m. and has no weekend work. However, Father indicated
     that [Children’s older sister] and his girlfriend . . . assist him with
     Children. We believe that this factor favors Father.

     Factor 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.

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J-A01009-20



       This favors neither party. Father complains that Mother will not
       let [Children] play sports and he wants their daughter or older son
       involved with their lives. Mother is concerned that [Children] will
       do anything to please Father. She believes that Father allows
       [Children] get away with too much; however, Mother recognizes
       that [Children] love and need their Father.

                                       *       *    *

       Factor 16—Any other relevant factor.

       In this case, the parties have shared legal and physical custody of
       [Children. Children] love and want to be with their parents. We
       are concerned that the parties are incapable of meaningful
       communicating with each other. We are convinced that both
       parents love and nurturing towards [Children] and want what is
       best for them. However, Mother has been the primary caregiver
       for the minor children since their birth.[9] Mother wants to move
       to be closer to her employment and she testified that she had
       problems with some of her current neighbors who are using drugs.
       Mother was in subsidized housing but now is able to find other
       housing. Father wishes for [Children] to participate in sports and
       stay in their current school district. While Mother seems to be
       concerned about [J.H’s] participation in sports if it conflicts with
       his schooling and grades.

       As we have stated above, many of the custody factors are neutral;
       however, we believe that at this time it would be in [Children’s]
       best interest to remain in their current school district.
       Accordingly, if Mother choses to remain in the East Stroudsburg
       [(South)] School District, it would be in [Children’s] best interest
       to live primarily with Mother. However, if Mother wishes to move
       from the East Stroudsburg (South) School District, necessitating
       a change in school districts for [Children], we believe that it would
       be in [Children’s] best interest to live primarily with Father.


____________________________________________


9 We note that the primary caretaker doctrine, under which a trial court was
to give “positive consideration” to the parent who was the primary caretaker
when the parents are both fit, is no longer viable. See M.J.M., 63 A.3d at
339. Nevertheless, a court may still consider a parent’s role as a primary
caretaker when considering the Section 5328(a) factors. Id.

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J-A01009-20


        After careful consideration of the testimony and evidence in this
        matter, we believe that it is in [Children’s] best interest to have
        the parties continue to share legal and physical and that is it in
        their best interest to remain in the East Stroudsburg (South)
        School District.

Trial Ct. Op. & Order, 4/24/19, at 4-8.

        We note there are some discrepancies between the trial court’s opinion

and order and the record.           For example, there was evidence of a prior

protection from abuse order against Father entered when Mother and Father

ended their relationship,10 and Father testified that Mother was abusive

towards Children and their siblings.11 Children testified that they preferred to

live with Father.12 Father also did not testify that his girlfriend assisted with

the care of Children. Nevertheless, in considering these discrepancies, our

review establishes that the record as a whole supports the trial court’s findings

and conclusions.

        As detailed above, Mother argues that none of the statutory factors

discussed by the trial court favored Father. Mother essentially questions the

trial court’s findings and asks this Court reweigh the evidence regarding (1)

which parent was more interested in and could better promote Children’s

academic performance, (2) the reliability of Children’s siblings as appropriate

child care providers, (3) the entry of a protection from abuse order against

Father in 1996, (4) Children’s motive for their preference to remain in the East
____________________________________________


10   N.T., 4/22/19, at 40.

11   Id. at 30, 33-37.

12   Id. at 130-33, 135, 138, 147-48.

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J-A01009-20



Stroudsburg (South) school district, (5) her motives for seeking to move from

the East Stroudsburg (South) school district, and (6) the balance of Children’s

preferences against her intention to retain primary physical custody of

Children.

       As we stated in King v. King, 889 A.2d 630 (Pa. Super. 2005), “[i]t is

not this Court’s function to determine whether the trial court reached the

‘right’ decision; rather, we must consider whether, ‘based on the evidence

presented, given due deference to the trial court’s weight and credibility

determinations,’ the trial court erred or abused its discretion.” King, 889 A.2d

at 632 (citation omitted). Moreover, the weight that a trial court gives to any

one factor is almost entirely within its discretion. See M.J.M., 63 A.3d at 339.

Here, Mother, in essence, questions the trial court’s conclusions and

assessments and asks this Court to reweigh the evidence. This we cannot do.

See King, 889 A.2d at 632. Accordingly, we conclude that Mother failed to

establish that the trial court abused its discretion when reviewing the Section

5328(a) factors.13

       Order affirmed.




____________________________________________


13Although we have concluded that Mother’s specific arguments do not entitle
her to appellate relief from the alternative custody provision, Mother is not
precluded from seeking a modification of the custody order based on evidence
that the modification will be in the best interest of Children.

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J-A01009-20




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/8/20




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