J-S21021-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CARL E. HUTH, II 

Appellant

v.

KRISTY L. POLLOCK

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 343 MDA 2022

Appeal from the Order Entered February 3, 2022,

in the Court of Common Pleas of York County,

Civil Division at No(s): 2021-FC-001196-03.

BEFORE: DUBOW, J., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED AUGUST 22, 2022

Carl E. Huth, II (Father) appeals the order issued by the York County 

Court of Common Pleas, which awarded Kristy L. Pollock (Mother) primary 

custody of their 7-year-old daughter, H.D.H. (the Child). The court treated 

the custody dispute as a relocation matter under 23 Pa.C.S.A. § 5337; the 

order effectively granted Mother’s request to remain in Tennessee with the 

Child. After careful review, we affirm. 

The record discloses the following factual and procedural history: The 

Child was born in December 2014. The parties’ relationship ended in

December 2018. Thereafter, the parties shared custody without a formal 

order. In August 2019, Father moved to York County, Pennsylvania. He 

subsequently married Stepmother and adopted her child. At the beginning of 

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* Retired Senior Judge assigned to the Superior Court.
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the COVID-19 pandemic in 2020, Mother and the Child moved to Tennessee 

to reside with Maternal Grandfather. 

It was the Father’s understanding that Mother and the Child were only 

staying in Tennessee temporarily, to quarantine with Maternal Grandfather, 

as the world waited to see how long the pandemic would last. After about a 

month, the parties began exchanging custody between Pennsylvania and 

Tennessee. Father testified that they shared custody on a two-weeks-on, twoweeks-off basis, but that sometimes Mother had longer periods, especially 

when Stepmother underwent cancer treatments. Eventually, Mother decided 

she wanted to stay in Tennessee permanently

In July 2021, Mother informed Father that she enrolled the Child in the 

local Tennessee school district. Both parents filed for custody in their 

respective jurisdictions, thereby implicating the Uniform Child Custody 

Jurisdiction and Enforcement Act (UCCJEA). See 23 Pa.C.S.A. §§ 5401-5428.

Upon following the UCCJEA protocols, the courts determined that the York 

County Court of Common Pleas (Pennsylvania) would exercise jurisdiction.

The trial court held a custody hearing on January 18, 2022. Evidently, 

the court proceeded under Father’s custody petition, but treated Mother’s 

request as one for relocation under Section 5337. On February 2, 2022, the 

court issued an order and opinion, wherein the court awarded Mother primary 

physical custody of the Child in Tennessee, subject to Father’s partial custody 

in Pennsylvania. Father received partial physical custody during the Child’s 

Fall and Spring breaks, alternating holidays, and for seven weeks during the 
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Summer. Legal custody remained shared. See Court Order and Opinion, 

2/3/22. Father timely-filed this appeal and presents the following issues:

1. Did the trial court commit an error of law or abuse its 

discretion in granting Mother the right to relocate with 

the Child from Pennsylvania to Tennessee?

2. Did the trial court commit an error of law or abuse its 

discretion by not appropriately applying proper weight 

to the factors that affect the best interests of the Child 

in awarding Mother primary physical custody?

Father’s Brief at 4 (cleaned up).

Father’s appellate issues concern the trial court’s application of the 

factors under Sections 5328(a) and 5337(h), respectively. We address these 

issues contemporaneously. To do so, we start by acknowledging the pertinent 

scope and standard of review:

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.

S.T. V. R.W., 912 A.3d 1155, 1160 (Pa. Super. 2018) (citation omitted).

The Child Custody Act contains two sets of factors the courts must 

consider, depending on the type of action. See 23 Pa.C.S.A. § 5328(a)(1)-
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(16); see also 23 Pa.C.S.A. § 5337(h)(1)-(10). Section 5328(a) provides: 

“In ordering any form of custody, the court shall determine the best interest 

of the child by considering all relevant factors, giving weighted consideration 

to those factors which affect the safety of the child, including [factors 1 

through 16.]” Id. We have held the court must conduct a Section 5328(a) 

analysis when a party seeks to modify a type of custody award. See A.V. v. 

S.T., 87 A.3d 818, 824 n.4 (Pa. Super. 2014); see also 23 Pa.C.S.A. § 5338 

(“Modification of existing order.”); and see 23 Pa.C.S.A. § 5323(a) (“Award 

of custody.”). Although, when a party merely seeks modification of “a discrete 

custody-related issue” a comprehensive Section 5328(a) analysis is not 

always necessary. See M.O. v. J.T.R., 85 A.3d 1058, 1063 (Pa. Super. 2014).

Separately, Section 5337(h) enumerates ten factors a court must 

consider in determining whether to grant a proposed relocation, again giving 

weighted consideration to those factors which affect safety. Where one party 

proposed relocation while the other sought custody modification, we have held 

courts must consider both sets of custody factors. See E.D. v. M.P., 33 A.3d 

73, 82 (Pa. Super. 2011). Similarly, when a proposed relocation necessarily 

involves a modification of a type of custody, courts must consider both sets of 

factors. A.V., 87 A.3d at 824-824; see also D.K. v. S.P.K., 102 A.3d 467, 

476-77 (Pa. Super. 2014) (acknowledging several factors directly or implicitly 

overlap).1 Finally, a trial court must delineate its reasons, either on the record 

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1 Here, the trial court considered the relocation factors, presumably because 

Pennsylvania was deemed to be the Child’s home state under the UCCJEA, 

(Footnote Continued Next Page)
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in open court or in a written opinion or order, pursuant to 23 Pa.C.S.A. § 

5323(d). 

With these principles in mind, we turn to the trial court’s findings under 

Sections 5328(a) and 5337(h), respectively. The trial court made the 

following findings under Section 5328(a)

(1) Which party is more likely to encourage and 

permit frequent and continuing contact between the 

child and another party.

The court finds that this factor weighs equally. Both parents 

are supportive of the other having regular and active contact 

and engagement with the Child.

(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 is not applicable. There was no evidence 

presented with regard to alleged abuse by either party.

(3) The parental duties performed by each party on 

behalf of the child.

This factor weighs equally. The court finds that both parties 

are able to perform all parental duties when they have 

custody of the Child.

(4) The need for stability and continuity in the child's 

education, family life and community life.

This factor slightly favors Mother. The court finds that the 

Child appears to be settled at her current residence with 

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and because Father claimed the move to Tennessee was only supposed to be 

temporary. Father does not challenge the court’s consideration of the 

relocation factors, and thus we need not address whether the court had to 

analyze them under these circumstances.
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Mother and Maternal Grandfather, and is doing well at her 

current school.

[In the trial court’s opinion filed pursuant to Pa.R.A.P. 

1925(a), the court made two additional observations under 

this factor:

“First, there was testimony from Mother that, on a least two 

occasions, Father contacted her to make arrangements for 

the Child to return to her custody several days earlier than 

planned because Father and the Child had left the residence 

Father shared with his wife (Child’s Stepmother) and were 

temporarily residing in a motel. Mother further testified that 

Father indicated there were some marital issues going on in 

his home that he did not want the Child to be exposed to. 

On cross-examination, Mother testified that one of these 

incidents directly related to interactions involving the Child 

and Stepmother.

“Second, the Court is also concerned that when describing 

the relationship between the Child and Stepmother, both 

Father and Stepmother referenced there being “boundaries” 

set between the Child and Step-Mother. Given the Child’s 

very young age, along with Mother’s unrefuted testimony 

that on at least one occasion Father and the Child left 

Father’s residence to stay in a motel due to some concerning 

interaction involving the Child and Stepmother, the court 

found Father’s and Step-Mother’s description of StepMother’s relationship with the Child to be of concern and not 

indicative of a healthy bond between the two.”]

(5) The availability of extended family.

The Court finds that this factor favors Mother. The Child has 

positive daily interactions with Maternal Grandfather while 

having only periodic interactions with Paternal and StepPaternal Grandparents when in Father’s Custody.

(6) The child's sibling relationships.

[On Father’s side, t]he Child has a younger half-sister with 

Father who is close in age to the Child and with whom the 

Child has a positive bond. The Child also has two paternal 

older half-brothers who live in Washington state and who 
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the Child rarely sees. The Child also has two paternal adult 

step-siblings, one who she sees periodically and one who 

lives in Oregon.

[On Mother’s side, t]he Child has an older half-sister with 

Mother who lives in Perry County, Pennsylvania who the 

Child sees at holidays and in the summer. The Child also 

has three maternal half-[brothers], with whom she has little 

or no contact.

The Court weighs this factor in favor of Father due to the 

Child’s close relationship with her younger half-sister.

(7) The well-reasoned preference of the child, based 

on the child's maturity and judgment.

This factor weighs slightly in favor [of] Mother. The Child 

has a positive relationship with both Mother and Father and 

enjoys spending time with both, however she expressed no 

desire to change the current custody arrangement.

(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.

This factor is not applicable. Both parents support each 

other’s engagement with the Child.

(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.

The Court finds that this factor weighs equally. Both are 

able to maintain a loving and stable relationship with the 

Child.

(10) Which party is more likely to attend to the daily 

physical, emotional, developmental, educational and 

special needs of the child.

This factor weighs slightly in favor of Mother. The Court 

finds that, based upon Mother’s availability due to 
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[Mother’s] flexible school schedule, Mother has a slightly 

stronger emotional tie with the Child.

(11) The proximity of the residences of the parties.

The extremely long distance between the parties’ residences 

in Pennsylvania and Tennessee, approximately 520 miles, is 

not conducive to a shared physical custody arrangement.

(12) Each party's availability to care for the child or 

ability to make appropriate child-care arrangements.

This factor weighs equally. Both parties are able to care for 

the Child or make appropriate childcare 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.

This factor is not applicable. The court finds little to no 

conflict exists between the parties other than their 

disagreement with regard [to] this custody matter. The 

court commends both parties for being amicable and 

cooperative for the Child’s benefit.

(14) The history of drug or alcohol abuse of a party or 

member of a party's household.

Mother had a history of drug abuse, but the evidence 

established that she has been clean for at least seven years 

now. The court finds that this factor is not applicable.

(15) The mental and physical condition of a party or 

member of a party's household.

This factor is not applicable. There was no testimony with 

regard to any mental or physical condition of a party that 

prevents either from performing their parental duties.
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See Court Order and Opinion, 2/3/22, at 5-9 (citing 23 Pa.C.S.A. § 5328(a)); 

see also Rule 1925(a) Opinion, 3/21/22 at 1-2.

2

Regarding the relocation factors, the trial court made the following 

findings:

(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.

This factor is neutral. Mother and Father both have a strong 

relationship with the Child, and the Child is close to both the 

Maternal Grandfather and a half-sister with Father.

(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.

This factor weighs in favor of relocation and remaining in 

Mother’s primary physical custody in Tennessee. The Child 

is currently in a positive education setting at her school; and 

has a slightly stronger relationship and bond with Mother

and Maternal Grandfather than with Father and Stepmother

(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.

The court finds that this factor weighs in favor of relocation. 

Based upon the school schedule in Tennessee, Father can 

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2 The trial court did not address Section 5328(a)(2.1)(“The 

information set forth in section 5329.1(a) (relating to consideration 

of child abuse and involvement with protective services).”); nor did 

the court address Section 5328(a)(16) (“Any other relevant factor.”).
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have longer periods of partial physical custody with the Child 

during the school year than Mother could have if the Child 

attended school in Father’s school district in Pennsylvania.

(4) The child's preference, taking into consideration 

the age and maturity of the child.

This factor weighs in favor of relocation and the Child 

remaining in Mother’s primary physical custody during the 

school year. As noted above under the custody factors, the 

Child expressed no desire to change the current custody 

arrangement, although she has a positive relationship with 

each parent and enjoys spending time with both.

(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.

The court finds that no evidence was presented indicating a 

pattern of conduct by any party to thwart the relationship of 

the Child with another party. This factor is not applicable.

(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.

The court weighs this factor in favor of relocation and the 

Child residing primarily with Mother. Mother has the 

emotional and financial support of her father, Maternal 

Grandfather, at their home in Tennessee, and she is able to 

pursue career training at school there.

(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.

The court weighs this factor as neutral. It is positive in favor 

of Mother with regard to the Child’s living situation in 

Tennessee with Mother and Maternal Grandfather, where 

the location is in line with the Child’s love of the outdoors 

and outdoor activities. It is negative against Mother and 
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relocation in that the Child will have diminished time with 

Father and her paternal family.

The court also weighs this factor as neutral due to Father 

agreeing to Mother and Child’s initial temporary move to 

Tennessee, and based on a credibility assessment finds that 

Father was at least minimally receptive to Mother and Child 

continuing to reside in Tennessee.

(8) The reasons and motivation of each party for 

seeking or opposing the relocation.

The court finds that all parties are acting in good faith and 

seeking what they believe is in the best interests of the 

Child. This factor weighs equally.

(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.

This factor is not applicable, there was no evidence 

presented with regard to abuse by either party or household 

members.

See Order and Opinion, at 11-15 (citing 23 Pa.C.S.A. § 5337(h).

3

Father’s appeal largely consists of a factor-by-factor argument why the 

trial court should have found for him instead of Mother. For instance, under 

Section 5328(a)(10), the trial court found that Mother’s flexible school 

schedule enables her to tend to the Child’s daily needs. In his Brief, Father 

discredits Mother’s flexible schedule, questioning the sincerity of her decision 

to seek education over gainful employment. He cites his own flexible work 

schedule to argue why this factor should favor him. See Father’s Brief at 22. 

In another example, Father argues that the court should not have found that 

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3 The trial court did not address Section 5337(h)(10) (“Any other factor 

affecting the best interest of the child.”)
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Section 5328(a)(3) (parental duties performed by each parent) favored both 

parents equally; Father argues he had been more involved. Id. at 19. When 

the court found a factor in his favor – e.g., Section 5328(a)(6) (the child’s 

sibling relationships) – Father argues the court should have afforded this 

factor even more weight. Id. at 21. Much of Father’s appeal transpires in a 

similar fashion. 

Father’s rationale is logical; often, the record developed in a custody 

hearing will also support the opposite result. So much of a custody award 

depends upon the weight given to each factor, which in turn, depends upon 

the weight given to evidence and testimony. Ultimately, however, Father 

misunderstands our role as an appellate court. We do not make independent 

factual findings or reweigh the evidence. S.T., 912 A.3d at 1160. “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.” M.J.M. v. M.L.G., 63 A.3d 

331, 339 (Pa. Super. 2013) (citation omitted) (emphasis added). This is 

because the presiding trial judge views and assesses the witnesses first-hand. 

S.T., 912 A.3d at 1160. “The parties cannot dictate the amount of weight 

the trial court places on evidence.” A.V., 87 A.3d at 820. 

For these reasons, we conclude none of Father’s factor-specific 

arguments merits relief. We need not itemize each contention as they all meet 

the same fate for the same reason. Upon our review, we conclude the record 

supports the trial court’s decision to award Mother primary custody in 
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Tennessee; it is irrelevant whether the record may or may not have also 

supported a primary custody award in Father’s favor. 

We do, however, address some of the finer legal points Father raises in 

his appeal. We observe that Father strongly urges us to find the trial court’s 

finding under Section 5328(a)(14) (history of drug use) to be erroneous. See 

Father’s Brief at 23. The trial court said this factor was not applicable. This 

factor is absolutely applicable. See 23 Pa.C.S.A. § 5328(a) (“In ordering any 

form of custody, the court shall...giv[e] weighted consideration to those factors 

which affect the safety of the child.”). But the issue is one of semantics. 

While the court said this factor was not “applicable,” the court meant to 

say was that it did not afford this factor very much weight. In other words, 

the court clearly applied this factor, as demonstrated by its finding that Mother 

had been clean for seven years. We recognize Father’s concern about Mother’s 

history with drugs; Mother was previously addicted to heroin and opiates. 

Although we are not bound by the court’s inferences, we decline to reweigh

this factor in favor of Father. We note Father was aware of Mother’s illicit drug 

use during their relationship, but Mother stopped using around the time she 

discovered she was pregnant. Evidently, Father was not concerned with 

Mother’s substance abuse history when allowed Mother and the Child to stay 

in Tennessee indefinitely. 

More generally, Father also claims the trial court’s findings are cursory 

and that the court did not fully delineate its reasons for the award pursuant 

to Section 5323(d). In expressing the reasons for the custody decision, we 
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have said “there is no required amount of detail for the trial court’s 

explanation; all that is required is that the enumerated factors are considered, 

and that the custody decision is based on those considerations.” M.J.M., 63 

A.3d at 226. A court’s explanation of reasons for its decision, which 

adequately addresses the relevant factors, complies with Section 5323(d). 

See D.Q. v. K.K., 241 A.3d 1112, 1118 (Pa. Super. 2020). “Appellate 

interference is unwarranted if the trial court’s consideration of the best interest 

of the child was careful and thorough, and we are unable to find any abuse of 

discretion.” A.V., 87 A.3d at 820. However, a court violates Section 5323(d) 

when the court’s reasoning is so vague that a party is prevented from taking 

an effective appeal. See C.B. v. J.B., 65 A.3d 946, 954-55 (Pa. Super. 2013).

Here, Father does not allege that the trial court’s delineation prevented 

him from taking an effective appeal, nor does he seek a remand to allow the 

court to fully delineate its reasons (which is the proper relief due when a court 

violates Section 5323(d)). Rather, Father concludes we should reverse and 

instruct the court to grant Father primary physical custody. This we will not 

do; we conclude the court’s delineation of reasons was sufficient.

Finally, Father takes issue with the fact that Mother never gave him 

notice of the proposed relocation under Section 5337(j). The Child Custody 

Act defines “relocation” as “[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.A. § 5322. A party proposing relocation must provide notice 

to any other individual who has custody rights, typically the other parent. 23 
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Pa.C.S.A. § 5337(c). When a party fails to provide reasonable notice, the 

court may make an adverse inference or even order the return of the Child:

(j) Failure to provide reasonable notice.--The court 

may consider a failure to provide reasonable notice of a 

proposed relocation as:

(1) a factor in making a determination regarding the 

relocation;

(2) a factor in determining whether custody rights should 

be modified;

(3) a basis for ordering the return of the child to the 

nonrelocating party if the relocation has occurred without 

reasonable notice;

(4) sufficient cause to order the party proposing the 

relocation to pay reasonable expenses and counsel fees 

incurred by the party objecting to the relocation; and

(5) a ground for contempt and the imposition of 

sanctions against the party proposing the relocation.

23 Pa.C.S.A. § 5337(j) (emphasis added).

Assuming Mother even had an obligation to provide Father with notice 

of her proposed relocation, the trial court had discretion to consider this fact 

and impose relief under Section 5337(j). The court was not required to impose 

any sanction. As such, it did not err when it failed to hold the lack of notice 

against Mother. Indeed, Mother did not abscond to Tennessee in bad faith. 

She went with Father’s knowledge and consent. We understand Father only 

consented to a temporary move, and we do not suggest Father forfeited his 

right to primary custody simply because he agreed the Child would be safer 
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in Tennessee, as a temporary measure, while the world came to grips with the 

COVID-19 pandemic. Again, we merely hold that Section 5337(j) affords the 

trial court discretion to weigh the lack of notice against Mother, and that the 

court did not abuse that discretion when it chose not to consider any of the 

remedial measures provided by Section 5337(j)(1)-(5).

In sum, we do not find that the trial court’s conclusions are unreasonable

in light of the evidence of record. See S.T., 912 A.3d at 1160. We discern no 

abuse of discretion or error of law. The trial court properly applied the relevant 

factors and delineated its reasons for the award. The court acted within its 

discretion when it declined to impose relief under Section 5337(j).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/22/2022