J-S09030-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

R.L.T.,                                         IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                           Appellee

                      v.

L.A.T.,

                           Appellant                 No. 1525 WDA 2014


                 Appeal from the Order Entered August 21, 2014
                 In the Court of Common Pleas of Fayette County
                    Civil Division at No(s): 1841 OF 2011 G.D.


BEFORE: FORD ELLIOTT, P.J.E., BOWES, and ALLEN, JJ.

MEMORANDUM BY BOWES, J.:                             FILED MARCH 18, 2015

      L.A.T. (“Mother”) appeals from the August 21, 2014 order entered

following a de novo custody hearing. The order endeavored to address “the

issue of primary custody/continuation of the temporary approval of

relocation[.]”    See Trial Court Order, 8/21/14.   As the trial court failed to

make the required best-interest considerations pursuant to the Child

Custody Act, 23 Pa.C.S. § 5328(a), in awarding physical custody, we reverse

the custody order and remand for further proceedings.

      As the procedural posture of this matter shapes our disposition, a

thorough recitation of the custody dispute is warranted. Mother and R.L.T.

(“Father”) married on April 27, 2006, and a daughter, A.T., was born of the

marriage during 2009.       The parties separated on March 17, 2011.     Father

filed a complaint in divorce five months later. When Father filed the divorce
J-S09030-15



complaint he was on active duty in the United States Air Force and stationed

in Virginia. As confirmed by Mother’s admission in her answer to the

complaint, Mother resided at 556 Pearl Street, Brownsville, Fayette County,

Pennsylvania.      That residence belonged to Father’s mother, who allowed

Mother and A.T. to live there following the parities’ separation.

       As Father’s divorce complaint included a count for joint custody of

A.T., the trial court referred that aspect of the litigation to a custody

mediator.     The mediation process was resolved with a temporary consent

order, which had the stated purpose of stabilizing the custody arrangement.

Mother was awarded primary physical custody of A.T., and Father received

physical custody between Sunday and Tuesday evenings while he was living

in Fayette County on leave from the Air Force.             The consent order

contemplated that, following Father’s expected discharge from active duty

during January 2012, Father would seek equally shared physical custody of

his daughter.1

       Following a subsequent mediation, on January 31, 2012, the trial court

entered a modified custody consent order, wherein Mother maintained
____________________________________________


1
  In her brief, Mother claims that she resided in Farmington, Pennsylvania at
this juncture. While not explicitly expressed in the consent order, it is
apparent from the location of the child’s daycare facility in Farmington and
the designated location for the custody exchanges in Uniontown,
Pennsylvania, that Mother no longer resided with her mother-in-law in
Brownsville. We observe that the three towns are located relatively close
together on a northwestern-southeastern axis in Fayette County with
Uniontown situated roughly equidistant between the other locations.



                                           -2-
J-S09030-15



primary physical custody and Father exercised physical custody from

Thursday afternoon to Sunday morning. Significantly, there is no indication

in the consent order that either party had moved since the prior temporary

order was entered.         Additionally, the order stated that it was the final

resolution of the issues referred to the mediator, that no further action

would be required of the mediator, and that the parties would comply with

the relocation provisions in the Child Custody Act.

        Less than one month later, Father filed a petition for de novo review.2

Following an evidentiary hearing, the trial court entered a thorough custody

order    that   awarded     shared    legal    custody   and   fashioned   a   custody

arrangement granting Mother physical custody of then-three-year-old A.T.

between Monday and Wednesday afternoons.                 Father maintained physical

custody between Wednesday and Friday afternoons, and the parties

alternated weekend custody between Friday and Monday afternoons.                  The

trial court purposely molded the arrangement so that Mother was granted

four additional weekends per year. Additionally, the trial court set forth the

custody schedule for major holidays.




____________________________________________


2
  The request for a de novo trial was procedurally improper. While the trial
court chastised Father for the misstep and stressed that the correct course
to modify an existing custody order was to file a motion for modification and
for the referral of a mediator, the trial court scheduled the evidentiary
hearing and entered a custody order.



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     As it relates to the issue that we confront on appeal, paragraph four of

the May 2012 custody order provided, in pertinent part, as follows:

     (4) Mother is granted permission to temporarily relocate to
     Bruceton Mills, West Virginia in her discretion (at least until
     [A.T.] becomes old enough for public school) if that becomes an
     option she wishes to exercise. Any other relocation by either
     party, including any permanent relocation to Bruceton
     Mills, West Virginia by Mother, is subject to the provisions of
     Pennsylvania statute, and this Court will retain jurisdiction of
     [A.T.] and this action for that purpose. . . . If both parents act
     cooperatively, they can jointly choose where [A.T.] attends
     school. However, neither party has unilateral control as to the
     best location for [A.T.] to attend school when she becomes of
     age, and if the parties are unable to agree, the Court will make
     the best choice from the options available at that time.

Trial Court Order, 5/17/12, at 4-5 (emphasis added).

     For the next twenty months, the May 2012 custody order endured the

parties’ sundry motions for modification, contempt, and special relief.     On

January 30, 2014, Father filed a petition to modify the May 2012 custody

order and a concomitant motion to refer the matter to a custody mediator.

Father noted that A.T. was approaching school age and that the custody

arrangement based upon Mother’s temporary relocation to West Virginia

would be impractical once school started.

     Following a mediation conference, on June 10, 2014, the trial court

entered the mediator’s recommended custody order granting shared legal

custody and permitting Mother to enroll A.T. in West Virginia.        While the

recommended order did not confront the relocation issue expressly, the

latter provision amounted to a de facto ratification of Mother’s “temporary



                                    -4-
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relocation.” The order provided that it superseded all prior custody orders

and included the boilerplate language that it fully resolved the issues

referred to the child custody mediator and that no further proceedings would

be scheduled before the mediator except by order of the trial court.

     Father exercised his right to appeal the order adopting the mediator’s

recommendation and to demand a de novo hearing before the trial court.

During the ensuing evidentiary hearing, Father testified on his own behalf

and presented Scott Tracy, PhD, who was qualified as an expert in the field

of child counseling. Mother relied upon her own testimony and exhibits. The

trial court did not issue its ruling at the close of the de novo hearing.

Instead, the court took the matter under advisement and on August 21,

2014, the trial court entered the custody order that is the genesis of this

timely appeal.   The August 21, 2014 order directed that A.T. will attend

school in West Virginia during the 2014-2015 school year and awarded

“approximately equally divided” physical custody. In subsequent years, the

child was ordered to attend school in Pennsylvania. The order did not set

forth the current or future custody arrangements. See Trial Court Order,

8/21/14, at 1.   Instead, after accepting the parties’ respective proposed

custody schedules, on October 21, 2014, the trial court issued an interim

order that provided Mother primary custody of A.T. during the current

academic year and granted Father physical custody of his daughter on all

but one weekend per month.       Additionally, Father was awarded primary

custody during the 2015 summer break, with Mother receiving overnight

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custody on alternating weekends. See Interim Court Order, 10/21/14, at 2-

3. The order did not address the prospective arrangement when the child

would attend school in Pennsylvania beginning with the 2015-2016 school

year.

        Essentially, the trial court determined that the June 2014 order,

wherein it adopted the mediator’s de facto ratification of Mother’s relocation

without reference to paragraph four of the May 17, 2012 custody order,

frustrated its intention to have the parties comply with the procedural and

substantive aspects of the relocation provisions outlined in the Child Custody

Act.    The court continued that, based upon the evidence adduced at the

hearing,

        Mother’s relocation from Brownsville to Farmington to Bruceton
        Mills does not comply with the statutory requirements set forth
        in 23 Pa.C.S. § 5337(h)[3] in that it does not currently allow

____________________________________________


3
 Section 5337(h) of the Child Custody Act enumerates ten factors a court
must consider in determining whether to grant a proposed relocation:

    (h) Relocation factors.--In determining whether to grant a proposed
    relocation, the court shall consider the following factors, giving
    weighted consideration to those factors which affect the safety of the
    child:

        (1) The nature, quality, extent of involvement and duration of
        the child’s relationship with the party proposing to relocate and
        with the nonrelocating party, siblings and other significant
        persons in the child’s life.

        (2) The age, developmental stage, needs of the child and the
        likely impact the relocation will have on the child’s physical,
(Footnote Continued Next Page)


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      Father, who exercises shared physical and legal custody, a
      reasonable opportunity to preserve his long-term relationship
      with the child. The original temporary approval of relocation was
      based on factors that either did not exist at all, or that
      disappeared shortly after the order was entered. Further the
      relocation currently offers no significant advantages to the child,
      and the advantages to Mother in the relocation do not outweigh
      the contrary interests of the Father and the child[.]

                       _______________________
(Footnote Continued)

      educational    and   emotional     development,       taking      into
      consideration any special needs of the child.

      (3) The feasibility of preserving the relationship between the
      nonrelocating party and the child through suitable custody
      arrangements,     considering   the   logistics  and   financial
      circumstances of the parties.

      (4) The child’s preference, taking into consideration the age and
      maturity of the child.

      (5) Whether there is an established pattern of conduct of either
      party to promote or thwart the relationship of the child and the
      other party.

      (6) Whether the relocation will enhance the general quality of life
      for the party seeking the relocation, including, but not limited to,
      financial or emotional benefit or educational opportunity.

      (7) Whether the relocation will enhance the general quality of life
      for the child, including, but not limited to, financial or emotional
      benefit or educational opportunity.
      (8) The reasons and motivation of each party for seeking or
      opposing the relocation.

      (9) The present and past abuse committed by a party or
      member of the party’s household and whether there is a
      continued risk of harm to the child or an abused party.

      (10) Any other factor affecting the best interest of the child.

23 Pa.C.S. § 5337(h).



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Trial Court Order, 8/21/14, at 2. In its subsequent Rule 1925 opinion, the

trial court expounded on its consideration of the relocation factors and

stated that the factors that it did not confront explicitly did not make a

significant contribution to its decision because they were inapplicable,

neutral, or substantially less weighty than the remaining factors that it did

address. Noticeably absent from the notes of testimony, trial court order, or

the Rule 1925(a) opinion, however, is any indication that, prior to making its

award of physical custody, the trial court considered any of the best-interest

factors delineated in § 5328(a), which we set forth infra.

      On appeal, Mother levels the following allegations:

      I.     Whether the trial court erred or abused its discretion by
      considering the issue of relocation, when this case did not
      involve a relocation at all, and the child was not moving a
      significant distances?

      II.   Whether [the] trial court erred or abused its discretion by
      deciding this case under the relocation statute, when the matter
      before the court was Father’s petition for primary physical
      custody of the minor child, and when Mother did not have notice
      that relocation would be the subject of the August 18, 2014
      hearing.

      III. Whether the trial court erred or abused its discretion by
      making numerous findings of fact and considering additional
      relocation and custody factors in its [R]ule 1925(a) opinion,
      when it failed to make such findings and consider all relevant the
      statutory factors in the August 21, 2014 custody order.

      IV.    Whether the trial court’s findings that Mother’s residence
      does not allow Father to preserve his long term relationship with
      the minor child, and that Mother’s residence offered no
      significant advantages to the child, are supported by competent
      evidence.


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Mother’s brief at 6-7.4

       Initially, Mother asserts that the trial court erred in framing this case

as a custody relocation action rather than a typical dispute concerning the

right to exercise primary physical custody. To support this position, Mother

invokes our recent holding in D.K. v. S.P.K., 102 A.3d 467, 474 (Pa.Super

2015), wherein we held, inter alia, that “where neither parent is relocating,

and only the custodial rights of the parties are at issue, section 5337 of the

Child Custody Act is not per se triggered[,]” and therefore the out-of-town

parent seeking primary custody of her child was not required to adhere to

the relocation notice procedures outlined in § 5337(c). From this holding,

Mother extrapolates that, since she resided in West Virginia for two years

prior to the August 2014 custody hearing, she was not seeking to relocate

pursuant to the Child Custody Act, and the trial court erred in applying the §

5337(h) relocation factors to determine A.T.’s best interest.

       Viewing the proceedings sub judice from the standpoint that this case

did not implicate any relocation issues whatsoever, Mother continues, in her

second argument, that the trial court erred by addressing the relocation

____________________________________________


4
  Since we reverse and remand, we do not address Mother’s final argument
assailing aspects of the trial court’s findings of fact. However, we reiterate
that due to our deferential review of the trial court’s factual findings and
determinations of weight and credibility, we must accept those findings and
determinations that are supported in the certified record by competent
evidence. See D.K. v. S.P.K., 102 A.3d 467, 478 (Pa.Super. 2015).




                                           -9-
J-S09030-15


issue without having provided her formal notice that the status of her

relocation would be the subject of the custody hearing. In essence, Mother

complains that the trial court’s failure to advise her, either prior to or during

the evidentiary hearing, that relocation would be at issue, was tantamount

to a violation of her due process right to notice and the opportunity to be

heard.

      Mother’s third complaint highlights the trial court’s failure to address

the custody factors enumerated in § 5328(a) relating to the award of any

form of custody.    She points out that pursuant to prevailing Pennsylvania

jurisprudence, the trial court was required to consider the § 5328(a) factors,

which it did not, and delineate its assessment of the factors “prior to the

deadline by which a litigant must file a notice of appeal.” See C.B. v. J.B.,

65 A.3d 946, 955 (Pa.Super. 2013). In sum, Mother asserts that, assuming

arguendo, Father’s petition to modify physical custody subsumed the issues

concerning her relocation to West Virginia, the trial court was required to

address both the relocation factors under § 5337(h) as well as the best

interest factors enumerated in § 5328(a).

      Father counters that, since A.T. was school age and his petition

concerned her custody during the academic year, the trial court properly

confronted the relocation issue pursuant to the terms of the May 2012 order.

As it relates to Mother’s due process claim, Father posits that, in light of

paragraph four of the May 2012 order, Mother had actual notice that her


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temporary relocation would be at issue. Finally, Father asserts that the trial

court did, in fact, consider all of the relevant statutory best interest factors

and delineated its determination in its Rule 1925(a) opinion. He adds that,

contrary   to    Mother’s   protestations,   our   holding   in   C.B.,   supra,   is

inapplicable herein because Mother did not demonstrate prejudice due to the

trial court’s failure to state its reasoning prior to the date that she filed the

notice of appeal.

      Upon review of the parties’ arguments, pertinent legal authority, and

the certified record, we conclude that the trial court’s failure to conduct a

thorough analysis of A.T.’s best interests based on the relevant § 5328(a)

factors and set forth its assessment pursuant to our holding in C.B. is

dispositive.    Accordingly, for the reasons explained below, we reverse the

August 21, 2014 custody order and remand the matter for the trial court to

conduct a thorough analysis of the best interests factors, form a custody

decision based on those considerations, and explain the reasons for its

decision pursuant to the C.B. Court’s interpretation § 5323(d).

      In order to clarify the posture of this case for the parties on remand,

as a preliminary matter, we observe that, contrary to Mother’s arguments,

Father’s January 30, 2014 petition to modify the May 2012 custody order

clearly implicated Mother’s temporary relocation to West Virginia.             Most

tellingly, the May 2012 order that Father’s petition specifically placed at

issue explicitly conditioned the temporary relocation upon A.T.’s age. That


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order provided unambiguously, “Mother is granted permission to temporarily

relocate to Bruceton Mills, West Virginia in her discretion (at least until

[A.T.] becomes old enough for public school) if that becomes an option

she wishes to exercise.”    Trial Court Order, 5/17/12, at ¶4 (emphasis

added). Additionally, the order underscored, “Any other relocation by either

party, including any permanent relocation to Bruceton Mills, West

Virginia by Mother, is subject to the provisions of Pennsylvania statute,

and this Court will retain jurisdiction of [A.T.] and this action for that

purpose.” Id. (emphasis added). Furthermore, Father’s petition specifically

averred, “The minor child will begin primary school on or about August,

2014. [Mother] currently resides in Bruceton Mills, West Virginia as per the

temporary permission granted by the court. The current distance between

the parties’ residence will render the current custody impractical once the

child begins primary school.” Petition to Modify Custody Order, 1/30/14, at

¶ 3.

       Although the language included in both the May 2012 order and

Father’s petition for modification were clear and unambiguous at that

juncture, the mediator overlooked the foregoing provision in issuing a

recommended custody order that effectively ratified Mother’s relocation by

directing that A.T. would attend school in West Virginia.    The trial court

exacerbated   the   mediator’s   misstep    by   summarily   adopting   the

recommended order and failing to recognize that the order conflicted with


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the express terms of its May 2012 order relating to Mother’s temporary

relocation.   However, upon consideration of Father’s de novo appeal from

the implementation of the recommended order, the trial court identified the

mistake and endeavored to resolve the issue.         Thus, we outright reject

Mother’s primary argument that this case did not involve relocation.

      Mother’s assertion overlooks the procedural history and conveniently

ignores that, by its terms, the portion of the May 2012 order permitting her

to relocate temporarily to West Virginia would be revisited when A.T. was old

enough to enroll in public school. Indeed, from Mother’s narrow perspective,

the only considerations before the trial court at the August 2014 hearing

were which parent would exercise physical custody and concomitantly where

A.T. would enroll in kindergarten. Thus, ignoring the reality of the May 2012

order, Mother disconnects her temporary relocation to West Virginia from the

best-interest determination completely.

      Likewise, Mother’s reliance upon our holding in D.K., supra, for the

principle that the relocation provisions were not triggered herein is inapt.

Unlike the case at bar, the parties residences in D.K. were separated by

significant distances prior to the custody litigation, and the parties exercised

custodial rights pursuant an agreement.       The father maintained primary

physical custody of the children in Pennsylvania, and the mother had periods

of supervised custody in North Carolina.       Approximately one year after

executing the custody agreement, the mother filed a complaint for primary


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physical custody.   Following a hearing, the trial court awarded the mother

primary custody. On appeal, the father asserted, inter alia, that the mother

failed to comply with the relocation procedures outlined in § 5337 of the

Child Custody Act. He contended that since the children would be displaced

to North Carolina if the mother’s complaint was successful, she was required

to provide him timely notice of her intention to relocate the children to North

Carolina.   As it relates to the case at bar, we held that the statute

anticipates that one of the parties would be relocating and that “where

neither parent is relocating, and only the custodial rights of the parties are

at issue, section 5337 of the Child Custody Act is not per se triggered.” D.K.

supra at 474. We continued that, since the mother was not relocating, but

only the children would be moving a significant distance based on the

custody determination, the mother was not required to comply with the §

5337 notice provisions.

      The difference between D.K. and the present case is manifest. Herein,

Mother did not live in West Virginia when Father initiated the custody

dispute. If that were the case, Mother’s reliance upon D.K. would be sound.

In reality, however, Mother lived in Pennsylvania at the outset of this

custody litigation and moved to West Virginia under the authority of the trial

court’s temporary endorsement, which was explicitly conditioned on A.T.’s

age. Indeed, the precise element that the D.K. Court deemed controlling in

that case, i.e., the lack of a relocating party, is absent in the case at bar.


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Contrary to Mother’s fervent protestations, the record bears out that she is a

relocating party. Accordingly, Mother’s attempt to invoke D.K. as a means

to challenge the applicability of § 5337 in this case is unpersuasive. 5

       The next aspect of Mother’s argument is dispositive. The crux of this

contention is that the trial court erred in failing to address the statutory

factors under § 5328(a) and delineate its rationale prior to the date of her

notice of appeal. For the following reasons, we agree.

       The Child Custody Act enumerates the following factors that a trial

court must consider in determining the best interests of a child when

awarding any form of custody:
____________________________________________


5
   Based upon the express terms of the May 2012 order alerting Mother to
the fact that her temporary relocation would be examined when A.T. became
school age, Mother can be presumed to have had actual notice that the trial
court would address her continued relocation when A.T. became school age.
Nevertheless, the trial court violated Mother’s due process rights by failing to
give her express notice that the evidentiary hearing would encompass her
outstanding temporary relocation. The trial court’s scheduling orders and
hearing notices did not mention relocation expressly. Further, although
Father’s motion for modification implicitly placed Mother’s temporary
relocation in dispute, neither the averments therein nor Father’s de novo
appeal from the ensuing order provided specific notice of that issue.

       Moreover, the trial court committed reversible error by confronting the
relocation issue without the benefit of the parties’ evidence and arguments
specifically tailored to that issue. As Mother points out, Father’s petition
sought primary custody and, at the outset of the hearing, the trial court
advised the parties that the hearing concerned which state A.T. would enroll
in school. The trial court declined to elicit, and the parties failed to adduce,
significant evidence that related to the § 5337(h) relocation factors. Indeed,
it is apparent from the certified record that, when the trial court addressed
the relocation issue, it did so retroactively by gleaning from the record the
evidence that it deemed relevant.



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     (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.

     (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.




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     (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 recently reiterated the following relevant principles:

           When deciding a petition to modify custody, a court must
     conduct a thorough analysis of the best interests of the child
     based on the relevant Section 5328(a) factors. E.D. v. M.P., 33
     A.3d 73, 80 (Pa.Super. 2011). “All of the factors listed in section
     5328(a) are required to be considered by the trial court when
     entering a custody order.” J.R.M. v. J.E.A., 33 A.3d 647, 652
     (Pa.Super. 2011) (emphasis in original). Section 5337(h)
     requires courts to consider all relocation factors. E.D., supra at
     81. The record must be clear on appeal that the trial court
     considered all the factors. Id.

           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 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, __ Pa. __, 70 A.3d 808 (2013). Section 5323(d)
     applies to cases involving custody and relocation. A.M.S. v.
     M.R.C., 70 A.3d 830, 835 (Pa.Super. 2013).

           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.”

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      M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa.Super. 2013), appeal
      denied, __ Pa. __, 68 A.3d 909 (2013). A court's explanation of
      reasons for its decision, which adequately addresses the relevant
      factors, complies with Section 5323(d). Id.

A.V. v. S.T., 87 A.3d 818, 822-823 (Pa.Super. 2014).

      Pursuant to the foregoing legal authority, the trial court was required

consider all of the relevant statutory factors and delineate its assessment of

the factors on the record in open court or in a written opinion or order to be

entered prior to the time that Mother had to take her appeal.       Instantly,

however, the trial court did not make any determinations on the record and

entered a custody order which only referred to the § 5337(h) relocation

factors cursorily and utterly ignored § 5328.    Indeed, the sum of court’s

mandated assessment of the statutory factors consisted of the following

passage:

      The above paragraphs of this Order [(relating to Mother’s
      continued temporary relocation for the upcoming school year,
      A.T.’s enrollment in Brownsville schools for the following school
      year, and the concomitant physical custody arrangements to
      effectuate her enrollment)] are based on the Court's finding that
      Mother's relocation from Brownsville to Farmington to Bruceton
      Mills does not comply with the statutory requirements set forth
      in 23 Pa. C.S. A. §5337(h) in that it does not currently allow the
      Father, who exercises shared physical and legal custody, a
      reasonable opportunity to preserve his long term relationship
      with the child. The original temporary approval of relocation was
      based on factors that either did not exist at all, or that
      disappeared shortly after the order was entered. Further, the
      relocation offers no significant advantages to the child, and the
      advantages to Mother do not outweigh the contrary interests of
      the Father and the child. Further, while Fathers pre-separation
      marital misconduct may have provoked an understandable
      emotional reaction from Mother, as per testimony, it cannot be


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       considered in this custody proceeding as a valid reason for
       relocation of the child.

Trial Court Order, 8/21/14, at 2.          While the trial court’s subsequent Rule

1925(a) opinion expounded upon the relocation factors to some degree, that

discussion violated the timing mechanism that we fashioned in C.B., supra

at 955.6     Moreover, the trial court’s Rule 1925(a) opinion still failed to

address the best-interest factors delineated in § 5328.            Although some

overlap exists between the two sets of statutory considerations, only six of

the ten relocation factors identified in § 5337(h) have a corresponding factor

in § 5328(a).

       In A.V., supra, this Court addressed whether the trial court was

required to consider the § 5328(a) best-interest factors as well as the

relocation factors enumerated in §5337(h) in entering a relocation order that

modified the prior physical custody agreement. After reviewing the relevant

principles that we iterated supra, we held that the trial court erred by failing

to apply the § 5328(a) custody factors when making a new award of custody

____________________________________________


6
  Contrary to Father’s understanding of the C.B. Court’s holding, Mother was
not required to establish prejudice in order to obtain relief. In C.B., supra,
we announced a new interpretation of §5323(d) and declined to remand the
matter. We noted the trial court did not have the benefit of our novel
perspective when it entered the custody order, that it had complied
substantially with the preexisting law, and that the appealing party did not
inadvertently forfeit any issues due to the trial court’s delay. Instantly,
however, the omission is neither justified nor benign. The trial court failed
to comply with the ensconced statutory paradigm regarding the
determination of a child’s best interest.



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concomitantly with relocation.   We reasoned, “Crucially, the order directly

changed Father's physical custody award from ‘shared physical custody’ to

‘partial physical custody.’” Id. at 823-824. Likewise, herein, we conclude

that, since the court addressed the parties custody rights, the custody order

triggered § 5328(a).

      This case is dissimilar from the facts we encountered in S.W.D. v.

S.A.R., 96 A.3d 396, 400 (Pa.Super. 2014), where we addressed a custody

order that, inter alia, denied a father’s request for special relief seeking to

change the location of his child’s kindergarten. Specifically, the father asked

the trial court to approve his choice of school. Following a hearing, the trial

court denied the petition for special relief and directed that the child attend

the school that the mother preferred.        As it relates to the issue that is

relevant herein, we determined in S.W.D. that since the trial court simply

decided the school that the child should attend, the court was not required

to consider the factors enumerated in § 5328(a) to determine the child’s

best interest. We explained, “when read as a whole, it is apparent that the

§ 5328(a) factors were designed to guide the best interest analysis when a

trial court is ordering which party has the right to a form of custody.” Id.

at 403 (emphasis in original). However, we concluded that remand was not

warranted in that case because the trial court did not alter either parent’s

form of legal custody. Instead, the court acted as an arbiter and selected

the school that the child would attend. We reasoned, “the court's decision


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here merely resolved an impasse between the parties who shared the legal

right to make this decision.    Stated another way, the trial court merely

arbitrated a dispute between Mother and Father regarding schooling, instead

of granting one of them the right to make that decision.” Id. at 403.

      This case differs from S.W.D. in two material ways. First, while the

trial court selected the school district that A.T. would attend in the upcoming

school years, unlike the factual scenario in S.W.D., where the parties lived

relatively close, the court’s school selection in the case at bar directly

impacted the parties’ physical custody arrangement. Indeed, although the

trial court indicated a desire to award approximately equally divided custody

if the parents are able to provide the necessary transportation, that

condition is unlikely to occur where Mother and Father reside approximately

forty minutes away from each other.          Second, and more importantly,

regardless of the nature of the court’s decision regarding the school

selection, the trial court was required to address the § 5328(a) best-interest

factors in resolving Father’s petition for modification seeking primary

physical custody of his daughter.     See S.W.D., supra at 406-407 (“By

asking the court to ratify the informal change [in the custody order], Father

was requesting a modification of physical custody. This compelled the trial

court to decide which physical custody arrangement was in Child's best

interest, squarely implicating an award of a form of custody under 23

Pa.C.S.A. § 5323(a).”). Instantly, the face of the custody order stated that


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it was addressing physical custody as well as Mother’s temporary relocation.

Accordingly, the trial court was required to comply with § 5328(a) and the

litany of cases interpreting that statutory provisions. Cf., M.O. v. J.T.R., 85

A.3d 1058 (Pa.Super. 2014) (where trial court merely modified single

discrete and narrow ancillary issue, Child Custody Act did not require court's

thorough consideration of custody factors or delineation of its rationale).

      Finally, we observe that Father’s brief highlights random references in

the trial court’s opinion and pairs those statements with seven of the

seventeen enumerated best-interest factors.          This attempt to cobble

together an implicit § 5328(a) analysis on the trial court’s behalf is

unavailing.     It is beyond argument that the trial court was statutorily

mandated to conduct a thorough analysis of all of the factors listed in §

5328(a) and deliver its assessment of those factors within the stated time

frame. The trial court failed to satisfy this mandate.

      Order reversed. Case remanded for the trial court to perform a best

interests analysis considering all of the § 5328(a) factors.        Jurisdiction

relinquished.

      Allen, J. joins.

      Ford Elliott, P.J.E. concurs in the result.



Judgment Entered.




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Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/18/2015




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