J-A07036-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

M.A.K. 

Appellant

v.

T.A.K.

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:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1704 MDA 2017

Appeal from the Order Entered October 16, 2017

in the Court of Common Pleas of Berks County Civil Division at No(s): 

14-485 Custody

BEFORE: PANELLA, J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED MAY 09, 2018

Appellant, M.A.K. (“Mother”), files this appeal from the order dated

October 13, 2017, and entered October 16, 2017,1in the Berks County Court 

of Common Pleas, awarding her and T.A.K. (“Father”) shared legal custody 

and Father primary physical custody of their minor son B.K., born in 

September 2011 (“Child”). After review, we affirm the trial court’s order.

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 The subject order was dated October 13, 2017. However, the clerk did not 

provide notice pursuant to Pa.R.C.P. 236(b) until October 16, 2017. Our 

appellate rules designate the date of entry of an order as “the day on which 

the clerk makes the notation in the docket that notice of entry of the order 

has been given as required by Pa.R.C.P. 236(b).” Pa.R.A.P. 108(b). Further, 

our Supreme Court has held that “an order is not appealable until it is entered 

on the docket with the required notation that appropriate notice has been 

given.” Frazier v. City of Philadelphia, 735 A.2d 113, 115 (Pa. 1999).
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At the time of Child’s birth, Mother and Father resided together in 

Hamburg, Berks County. Mother and Father never married and separated in 

December 2013. Subsequent to separation, Mother moved to Tamaqua, 

Schuylkill County. Notes of Testimony (“N.T.”), 10/6/17, at 16; N.T., 8/17/17, 

at 36-37, 57, 62. Pursuant to an agreed upon order dated March 24, 2014, 

and entered March 25, 2014, the parties were granted shared legal custody 

of the child. Further, Mother was granted primary physical custody, and 

Father partial physical custody from every Wednesday at 5:00 p.m. to Friday 

at 5:00 p.m. and alternate weekends from Friday at 5:00 p.m. to Monday at 

8:00 a.m.2 Father eventually moved to Bernville, Berks County and Mother 

to Royersford, Montgomery County.3 N.T., 10/6/17, at 17; N.T., 8/17/17, at 

37, 58, 62. The parties continued to follow the custody order entered March 

25, 2014. N.T., 8/17/17, at 6. Each pursued new relationships and is now 

married. Id. at 5, 59-60. Moreover, Mother and her husband are expecting 

a child in May 2018. N.T., 10/6/17, at 51. 

Mother filed a petition for modification on March 7, 2017 based upon the 

fact that the parties resided in different school districts and that Child would 

____________________________________________

2 The parties conceded that this was essentially shared physical custody. N.T., 

8/17/17, at 37, 62.

3 Father moved in approximately December 2014 and Mother in March 2016. 

Both parties served notices of proposed relocation on the other party as a 

result of their moves. N.T., 10/6/17, at 17.
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be entering kindergarten in the 2017-18 school year.4 Petition for Modification 

of Custody, 3/7/17. The court conducted hearings on August 17, 2017 and 

October 6, 2017. Mother and Father, represented by counsel, each testified 

on their own behalf. In addition, Mother presented the testimony of her

husband’s ex-paramour, C.G.; her husband, T.F.; her mother-in-law, L.A.F.; 

and her father-in-law, R.F. Father presented the testimony of his mother, 

J.K.; his older son, W.K.; and his wife, A.K.

At the outset of the hearing on August 17, 2017, given that the start of 

school was rapidly approaching, the parties acknowledged that the court 

would make a decision as to school.

THE COURT: As I understand the main issue in this case is 

school. You’re in two different school districts. So I think that is 

what the focus is going to be really this afternoon. . . .

. . . 

[Counsel for Mother]: My understanding is that we are 

going to proceed -- I am going to have direct examination on 

[Mother] today, and [counsel for Father] can cross-examine her. 

I will not rest. At that point [counsel for Father] can call his client. 

I can cross-examine him. We are not going to rest. That gives 

the [court] the opportunity to make a decision as to what school 

this child is going to go to since we have one week to make that 

decision.

Is that correct?

[Counsel for Father]: That’s correct, Your Honor. And then 

the hope that we would be able to agree on a final custody order 

based on that decision. If not, we can preserve another date in 

the future to finish the trial if need be.

____________________________________________

4 Upon review of the certified record, a prior petition for modification had been 

withdrawn.
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N.T., 8/17/17, at 3-4.

Upon conclusion, on August 17, 2017, after hearing from both Mother 

and Father, the court placed a decision on the record awarding Father primary 

physical custody of the child. Id. at 108. The following day the court entered 

an order memorializing its decision.5 Pursuant to interim order dated and 

entered August 18, 2017, the court maintained shared legal custody. Further, 

the court awarded primary physical custody to Father and the ability to enroll 

Child in Schuylkill Valley School District. The court awarded partial physical 

custody to Mother three weekends per month from Friday at 6:00 p.m. to 

Sunday at 6:00 p.m.

Subsequent to the second day of hearing, pursuant to order dated 

October 13, 2017, and entered October 16, 2017, the court awarded the 

parties shared legal custody and Father primary physical custody of the child. 

The court further awarded Mother partial physical custody during the school 

year, alternating weekends from Friday at 6:00 p.m. to Sunday at 6:00 p.m., 

Wednesday after school or at 4:00 p.m. until 8:00 p.m., Christmas break, and 

spring break. In the summer, the court provided for a shared physical custody 

schedule on a week-on/week-off alternating basis.

____________________________________________

5 The court notes, “Given the immediate issue of where the minor child. . .will 

attend school and the likelihood that the trial would not be completed on 

August 17, 2017, the trial, by agreement of the parties, was handled as a 

petition for special relief. This [c]ourt will cooperate with scheduling this 

matter for a full custody trial later this [f]all, if needed.” Interim Order, 

8/18/17.
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On November 2, 2017, Mother, through her trial counsel, filed a notice 

of appeal, as well as a concise statement of errors complained of on appeal 

pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). The trial court issued a Rule 

1925(a) Opinion dated November 28, 2017, and entered November 30, 2017, 

directing attention to its order dated October 13, 2017, and entered October 

16, 2017. Moreover, while the trial court did not find the matter a relocation 

case, to the extent this Court would require an examination of the relocation 

factors pursuant to 23 Pa.C.S.A. § 5337, the court went on to provide an 

analysis of the relocation factors.

On appeal, Mother raises the following issues for our review:

I. DID THE TRIAL COURT ERR IN AWARDING FATHER PRIMARY 

PHYSICAL CUSTODY?

II. DID THE TRIAL COURT ERR IN DETERMINING THAT THIS IS A 

RELOCATION CASE AND FINDING 23 Pa.C.S.A. § 5328(a)(11) –

“THE PROXIMITY OF THE RESIDENCE OF THE PARTIES” IN FAVOR 

OF FATHER WITHOUT CONSIDERING THE RELOCATION FACTORS 

AS SET FORTH IN 23 Pa.C.S.A. § 5337?

III. DID THE TRIAL COURT ERR IN DETERMINING THAT 23 

Pa.C.S.A. § 5328(a)(1) – “WHICH PARTY IS MORE LIKELY TO 

ENCOURAGE AND PERMIT FREQUENT AND CONTINUING 

CONTACT BETWEEN THE CHILD AND ANOTHER PARTY” FAVORS 

NEITHER PARTY, WHERE IT FAVORS MOTHER?

IV. DID THE TRIAL COURT ERR IN DETERMINING THAT 23 

Pa.C.S.A. § 5328(a)(3) – “THE PARENTAL DUTIES PERFORMED BY 

EACH PARTY ON BEHALF OF THE CHILD” FAVORS NEITHER PARTY, 

WHERE IT FAVORS MOTHER AND FACTOR 23 Pa.C.S.A. § 

5328(a)(10) –“WHICH PARTY IS MORE LIKELY TO ATTEND TO THE 

DAILY PHYSICAL, EMOTIONAL, DEVELOPMENTAL, EDUCATIONAL 

AND SPECIAL NEEDS OF THE CHILD” FAVORS FATHER, WHERE IT 

FAVORS MOTHER?
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V. DID THE TRIAL COURT ERR IN DETERMINING THAT 23 

Pa.C.S.A. § 5328(a)(4) – “THE NEED FOR STABILITY AND 

CONTINUITY IN THE CHILD’S EDUCATION, FAMILY LIFE AND 

COMMUNITY LIFE[,”] AND 23 Pa.C.S.A. § 5328(a)(5) – “THE 

AVAILABILITY OF EXTENDED FAMILY[,”] AND 23 Pa.C.S.A. § 

5328(a)(12) – “EACH PARTY’S ABILITY TO CARE FOR THE CHILD 

OR ABILITY TO MAKE APPROPRIATE CHILD CARE 

ARRANGEMENTS” FAVOR FATHER, WHERE THESE FACTORS 

FAVOR MOTHER?

VI. DID THE TRIAL COURT ERR IN DETERMINING THAT 23 

Pa.C.S.A. § 5328(a)(6) – “THE CHILD’S SIBLING 

RELATIONSHIPS” FAVORS FATHER, WHERE THIS FACTOR EITHER 

FAVORS MOTHER OR FAVORS NEITHER PARTY?

Mother’s Brief at 2-3.

In custody cases under the Child Custody Act, (“the Act”), 23 Pa.C.S.A. 

§§ 5321-5340, our standard of review is as follows:

In reviewing a custody order, our scope is of the broadest type 

and our standard is abuse of discretion. We must accept findings 

of the trial court that are supported by competent evidence of 

record, as our role does not include making independent factual 

determinations. In addition, with regard to issues of credibility 

and weight of the evidence, we must defer to the presiding trial 

judge who viewed and assessed the witnesses first-hand. 

However, we are not bound by the trial court’s deductions or 

inferences from its factual findings. Ultimately, the test is whether 

the trial court’s conclusions are unreasonable as shown by the 

evidence of record. We may reject the conclusions of the trial 

court only if they involve an error of law, or are unreasonable in 

light of the sustainable findings of the trial court.

C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa.Super. 2012) (citation omitted); see 

also E.R. v. J.N.B., 129 A.3d 521, 527 (Pa.Super. 2015).

This Court consistently has held:

[t]he discretion that a trial court employs in custody matters 

should be accorded the utmost respect, given the special nature 

of the proceeding and the lasting impact the result will have on 

the lives of the parties concerned. Indeed, the knowledge gained 
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by a trial court in observing witnesses in a custody proceeding 

cannot adequately be imparted to an appellate court by a printed 

record. 

Ketterer v. Seifert, 902 A.2d 533, 540 (Pa.Super. 2006) (quoting Jackson 

v. Beck, 858 A.2d 1250, 1254 (Pa.Super. 2004)). In addition,

[a]lthough we are given a broad power of review, we are 

constrained by an abuse of discretion standard when evaluating 

the court’s order. An abuse of discretion is not merely an error of 

judgment, but if the court’s judgment is manifestly unreasonable 

as shown by the evidence of record, discretion is abused. An 

abuse of discretion is also made out where it appears from a 

review of the record that there is no evidence to support the 

court’s findings or that there is a capricious disbelief of evidence.

M.A.T. v. G.S.T., 989 A.2d 11, 18-19 (Pa.Super. 2010) (en banc) (citations 

omitted).

The paramount concern in any custody case decided under the Act is 

the best interests of the child. See 23 Pa.C.S.A. §§ 5328, 5338. Section 

5323 of the Act provides for the following types of awards:

(a) Types of award.—After considering the factors set forth in 

section 5328 (relating to factors to consider when awarding 

custody), the court may award any of the following types of 

custody if it 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.
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(7) Sole legal custody.

23 Pa.C.S.A. § 5323(a).

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

must consider in doing so. See E.D. v. M.P., 33 A.3d 73, 79-80 n.2 

(Pa.Super. 2011). Specifically, Section 5328(a) of the Act provides as follows:

§ 5328. Factors to consider when awarding custody

(a) Factors.—In ordering any form of custody, the court shall 

determine the best interest of the child by considering all relevant 

factors, giving weighted consideration to those factors which 

affect the safety of the child, including the following:

(1) Which party is more likely to encourage and permit 

frequent and continuing contact between the child and another 

party. 

(2) The present and past abuse committed by a party or 

member of the party’s household, whether there is a continued 

risk of harm to the child or an abused party and which party can 

better provide adequate physical safeguards and supervision of 

the child. 

(2.1) The information set forth in section 5329.1(a)(1) and 

(2) (relating to consideration of child abuse and involvement with 

protective services). 

(3) The parental duties performed by each party on behalf 

of the child. 

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

education, family life and community life.

(5) The availability of extended family.

(6) The child’s sibling relationships.

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

child’s maturity and judgment.
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(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.A. § 5328(a).

Further, with regard to the custody, we have stated as follows:

. . . “All of the factors listed in [S]ection 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). . . . 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 
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opinion or order.” 23 Pa.C.S.A. § 5323(d). Additionally, 

“[S]ection 5323(d) requires the trial court to set forth its 

mandatory assessment of the sixteen [Section 5328(a) custody] 

factors prior to the deadline by which a litigant must file a notice 

of appeal.” C.B. v. J.B., 65 A.3d 946, 955 (Pa.Super. 2013), 

appeal denied, 70 A.3d 808 (Pa. 2013). . . .

In expressing the reasons for its decision, “there is no required 

amount of detail for the trial court’s explanation; all that is 

required is that the enumerated factors are considered and that 

the custody decision is based on those considerations.” M.J.M. v. 

M.L.G., 63 A.3d 331, 336 (Pa.Super. 2013), appeal denied, 68 

A.3d 909 (Pa. 2013). A court’s explanation of reasons for its 

decision, which adequately addresses the relevant factors, 

complies with Section 5323(d). Id.

A.V. v. S.T., 87 A.3d 818, 822-23 (Pa.Super. 2014).

In its order, the trial court carefully analyzed and addressed each factor 

pursuant to Section 5328(a) and the Child’s best interests as follows:

CUSTODY FACTORS

The [c]ourt incorporates the above Facts Established above in the 

discussion of the following custody factors.

1. Which party is more likely to encourage and permit frequent 

and continuing contact between the child and another party.

The [c]ourt truly believes both parents are good, loving parents 

and both want what’s best for [] Child, they simply dislike each 

other. The problem with this matter is that Mother and Father do 

not communicate well, to the point that they may both be doing 

damage to [] Child. This factor favors neither 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 can better provide 

adequate physical safeguards and supervision of the child.
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There has been no abuse committed by either party. This factor 

favors neither party.6

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

child.

Mother and Father equally perform parental duties on behalf of []

Child while [] Child is in the parties’ respective care. This factor 

favors neither party.

4. The need for stability and continuity in the child’s education, 

family life and community life.

Mother is married and residing with her new husband. Father is 

married, owns his home, has been steadily employed and is selfemployed operating his own business and is able to provide []

Child with a stable home life. [] Child is currently enrolled in the 

Schuylkill Valley School District where [] Child’s step-siblings 

attend. While the [c]ourt was impressed with Mother’s extended 

family, Father has a substantial support system. This factor favors 

Father.

5. The availability of extended family.

Paternal grandmother, and other members of Father’s family and 

step-mother’s family are very involved in [] Child’s life and are 

available to assist with caring for [] Child. Maternal grandfather 

resides in Schuylkill County. Mother relies on Father’s extended 

family to provide care for [] Child when needed. This factor favors 

Father.

6. The child’s sibling relationships.

[] Child is extremely close with his siblings on Father’s side. 

Father has 50/50 custody of his older son, [W.], with whom []

Child is closely bonded. Father’s wife’s children (ages 11 and 15) 

also reside primarily with Father and [] Child is extremely close to 

them as well. This factor favors Father.

____________________________________________

6 The trial court did not separately address Section 5328(a)(2.1). However, 

the evidence established that, while Child is being evaluated through 

counseling, any involvement of CYS did not proceed beyond a telephone call 

to Father. N.T., 8/17/17, at 54-55, 70, 82, 95.
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7. The well-reasoned preference of the child, based on the child’s

maturity and judgment.

[] Child is six (6) years old and therefore too young to provide a 

well-reasoned preference. This factor favors neither party.

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.

The [c]ourt is not convinced that either parent actively attempts 

to alienate the Child from the other parent. Their anger with each 

other is so strong that no doubt the Child picks up on that. This

must stop or the Child will suffer.

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.

Both parents meet this factor equally.

10. Which party is more likely to attend to the daily physical, 

emotional, developmental, educational and special needs of the 

child.

Father is able to provide for all of [] Child’s needs. Father owns 

his home in the Schuylkill Valley School District and he and his 

wife intend to stay where they are for the foreseeable future.

Father has a strong support network to assist Father when 

needed. While Mother meets the requirements of this factor, the 

[c]ourt is of the opinion that overall this factor favors Father.

11. The proximity of the residences of the parties.

Mother resides in Royersford, PA[,] which is approximately 45 

minutes from Father. Mother chose to relocate this distance away 

from Father. This is really the problem. The [c]ourt sees no 

reason for Mother’s choice of residence other than to be with her

new husband. If the parties were closer in residence, the [c]ourt 

would favor a shared custody arrangement. As it is, Mother chose 

to relocate outside of Berks County. This factor favors Father.

12. Each party’s availability to care for the child or ability to make

appropriate child-care arrangements.

Father and Father’s family have always been able to provide care 

for [] Child. Mother relies on Father’s family for care of [] Child 
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when Mother is unavailable. While there was credible testimony 

that Mother’s in[-]laws are planning to retire and thus available to 

assist Mother, they have not done so yet. This factor favors 

Father.

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.

As stated above, the parties do not cooperate with one another on 

much of anything. This must change.

14. The history of drug or alcohol abuse of a party or member of 

a party’s household.

There is no history of drug or alcohol abuse by either party. This 

factor favors neither party.

15. The mental and physical condition of a party or member of a 

party’s household.

There are no mental or physical concerns for either party. This 

factor favors neither party.

16. Any other relevant factor.

None.

Decision and Order, 10/16/17, at 5-10. 

Turning to Mother’s issues raised on appeal, Mother first claims that the 

trial court erred in awarding primary physical custody in the interim order of

August 18, 2017 without consideration of the custody factors. Mother’s Brief 

at 15-22. Distinguishing the matter from S.W.D. v. S.A.R., 96 A.3d 396 

(Pa.Super. 2014), Mother contends that, as the court altered physical custody, 

the court was required to and failed to consider the custody factors. Mother’s 

Brief at 19-22. She states, 

The trial court was obligated to consider the best interest of the 

[m]inor [c]hild when considering which school district the [m]inor 
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[c]hild would attend. The Act requires a court to consider all of 

the 23 Pa.C.S.A. § 5328(a) best interest factors when ordering 

any form of custody. The trial court failed to do this in the case 

at bar. The trial court modified the [c]ustody [o]rder from an 

equally shared custody arrangement to Father having primary 

physical custody without considering the 23 Pa.C.S.A. § 5328(a) 

custody factors.

Id. at 19-20 (citations omitted). 

Moreover, Mother asserts that the court failed to justify its decision with 

any information related to the two school districts in question. Rather, the 

court only referenced Father’s support group, particularly Paternal 

Grandmother, in explaining its decision. Id. at 22-24. Notably, however,

Paternal Grandmother no longer cares for Child. Id. at 25. Further, Mother 

asserts that the court relied on its own personal knowledge of Schuylkill Valley 

School District and ignored evidence with regard to Spring-Ford Area School 

District. Id. at 24-25.

On this topic, the trial court reasoned:

Furthermore, counsel for the parties specifically requested this 

[c]ourt to make an expedited decision on where [] Child would 

attend school and waived any detailed findings on the enumerated 

factors as the beginning of [] Child’s school year was less than a 

week away. Accordingly, this [c]ourt did make an expedited 

decision[,] which resulted in the grant of primary physical custody 

to Father and [] [C]hild beginning school in the Schuylkill Valley 

School District where he was already enrolled with his stepsiblings.

Trial Court Opinion (“T.C.O.”), 11/30/17, at 3.

We have clarified that the factors under Section 5328(a) are required to 

be addressed where an order impacts an award of custody and does not 
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merely deal with a discrete and distinct issue. S.W.D. v. S.A.R., 96 A.3d 396 

(Pa.Super. 2014). 

It is also true that 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 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- like here- 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. 

Further, 

We recognize that, when a trial court makes a ruling concerning 

which school a child will attend, it also may be required to modify 

the parties’ physical custody arrangement. This is particularly so 

when the parties live far apart, making it impractical for one 

parent to transport the child to school. In those cases, because a 

change in physical custody would occur, the § 5328(a) factors 

would all need to be addressed.

Id. at 407 n.6.

In the instant matter, we observe that there was no objection raised by 

Mother after the court’s decision on the record on August 17, 2017. Further, 

there was no motion for reconsideration or other filing after entry of the court’s 

August 18, 2017 interim order memorializing same. Mother did not raise the 

trial court’s award of primary physical custody to Father and failure to address 
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the custody factors until the end of the hearing on October 6, 2017.7 See

N.T., 10/6/17, at 134-35. As such, we find that Mother’s challenge is waived. 

See Pa.R.A.P. 302(a) (providing for waiver of issues not first raised in lower 

court); Fillmore v. Hill, 665 A.2d 514, 515-16 (Pa.Super. 1995) (stating, 

“[I]n order to preserve an issue for appellate review, a party must make a 

timely and specific objection at the appropriate stage of the proceedings 

before the trial court. Failure to timely object to a basic and fundamental 

error, such as an erroneous jury instruction, will result in waiver of that issue. 

On appeal, the Superior Court will not consider a claim which was not called 

to the trial court’s attention at a time when any error committed could have 

been corrected.”) (citations omitted).

Even had this issue not been waived, we would find that Mother’s claim 

fails. The record reveals that the court handled the matter on August 17, 

2017 as a petition for special relief subject to further hearing, resulting in the 

entry of an interim order. Upon presentation of further evidence on October 

____________________________________________

7 Counsel argued in part,

Your Honor, at the end of the first part of this custody trial, which 

took place on August 17th, 2017, the [c]ourt advised counsel and 

it was placed on the record and to the parties that [Child] would 

be attending school in [F]ather’s school district and be living 

primarily with [F]ather, and the [c]ourt stated its primary reason

for doing so was because [F]ather’s mother had acted as a 

babysitter to the minor child. With all due respect to the [c]ourt[,] 

that reason is not sufficient to make a decision as it relates to 

primary custody; moreover, that is contrary to the 16 custody 

factors that guides this [c]ourt in making those decisions. 

N.T., 10/6/17, at 134-35.
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6, 2017, the court then entered a final order based upon full consideration of 

the custody factors pursuant to 23 Pa.C.S.A. § 5328(a). Thus, Mother’s claim 

is without merit.

With her second issue, Mother asserts that the trial court erred in 

determining that the matter was a relocation case and finding that factor 11 

favored Father without consideration of the relocation factors pursuant to 23 

Pa.C.S.A. § 5337. Id. at 27. In maintaining that relocation is not relevant, 

Mother suggests that “23 Pa.C.S.A. § 5337 does not apply in a case where 

both parties have lived in their current location for some time. Additionally, 

Mother argues that this case is not a relocation case as defined under the 

Act[,] 23 Pa.C.S.A. § 5322(a).” Id. Mother, however, acknowledges that the 

trial court did consider the relocation factors in its supplemental opinion. Id.

at 27. 

Specifically, Mother points to the fact that she moved from Tamaqua to 

Royersford one year prior to filing for the current modification. Id. at 28, 32. 

She notes that this reduced the driving distance between Father and her from 

55 minutes to 45 minutes. Id. at 28, 33-34. More importantly, Mother 

indicates that the parties kept the custody order in place. Id. at 32-33. As 

such, it was not her move that caused a need to alter the custody schedule, 

but Child’s start of kindergarten. Id. Mother argues, “Because the trial court 

erroneously determined that Mother had relocated[,] and the trial court 

believes this factor was controlling[,] the trial court awarded Father primary 

physical custody. Therefore, Mother avers that the trial court committed a 
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reversible error in determining that Mother relocated and in finding this factor 

in favor of Father.” Id. at 35. 

Related to Mother’s claim, the trial court stated:

Plaintiff’s Error Complained of on Appeal No. 2 alleges that 

this [c]ourt erred in determining that this is a relocation case and 

finding Factor 11 – “The proximity of the residences of the parties” 

in favor of Defendant without considering the relocation factors as 

set forth in 23 Pa.C.S.[A.] § 5337. Mother provided Father’s 

counsel with a Notice of Proposed Relocation and included a 

proposed custody schedule. The [c]ourt clearly accepted that 

Father did not object to Mother’s relocation. The [c]ourt merely 

mentioned under Factor 11 that distance is an issue regarding 

primary custody. . . .

T.C.O. at 2-3.

Pursuant to 23 Pa.C.S.A. § 5322(a), relocation is defined as “[a] change 

in a residence of the child which significantly impairs the ability of a 

nonrelocating party to exercise custodial rights.” Moreover, in D.K. v. S.P.K., 

102 A.3d 467, 477-78 (Pa.Super. 2014), we held that a trial court is to 

consider the Section 5337(h) relocation factors only where a parent is 

relocating with a child. We stated as follows:

Based on the information that [S]ection 5337(c)(3) requires the 

party proposing relocation to provide to the nonrelocating party, 

it is evident that the legislature did not intend for [S]ection 

5337(c) to apply in a custody case, where both parents have lived 

in their current residences for some time, and neither parent is 

relocating. Rather, [S]ection 5337 is designed to give notice to a 

party with custody rights that the other custodial party intends to 

change his or her geographical location and a modification of a 

custody arrangement will be necessary to allow the relocating 

party to continue to exercise custody rights. Section 5337(c) 

obviously envisions a change in the relocating party’s geographical 

location that will impact custody and arms the nonrelocating party 

with the information necessary to assess the proposed change of 
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circumstances. In a case such as this, where both parents remain 

in their established residences, there are no changed 

circumstances to assess. The challenge is solely to a change in 

the custody arrangement and not a party’s relocation. Moreover, 

in a custody case where both parties continue to live in their 

current residences, the information required under [S]ection 

5337(c) is either known or will be revealed as a matter of course 

in either the complaint for custody or the custody proceedings.

Id. at 473.

In the case at bar, Mother and Father have resided in their current 

locations, Mother in Royersford and Father in Bernville, for at least one year 

prior to the filing of the petition to modify in March 2017. They continued to 

exercise physical custody of Child as provided by the March 25, 2014 order

until entry of the August 18, 2017 interim order. Modification of the physical 

custody schedule was not necessitated by relocation, but rather the Child 

beginning kindergarten. Hence, this matter is not a relocation matter 

requiring consideration of the relocation factors. See D.K., 102 A.3d at 477-

78; 23 Pa.C.S.A. § 5322(a). Further, it is clear that neither the court, nor the 

parties, determined this matter to be a relocation matter. The trial court 

merely indicates that Mother is no longer in Berks County, and addresses 

Mother’s distance from Father. Mother’s second issue is therefore without 

merit.

Next, with her third issue, Mother argues that the trial court erred in 

determining that factor 1 favors neither party, where it favors Mother. 

Mother’s Brief at 35. Mother states, “Mother believes that the trial court erred 

in determining that neither party encourages frequent and continuing contact 

between the Minor Child and the other party, where Mother had placed 
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abundant evidence of record that Mother did permit contact between the Minor 

Child and Father whereas Father did not.” Id. Mother raises issues 

communicating with Child when Child is with Father and Father’s lack of desire 

to use Skype or FaceTime. Id. at 36-37. She likewise notes that Father 

denies her requests for vacation or time with Child when Child is off and 

Mother is available, as well as her effective exclusion from Child’s counseling. 

Id. at 37-39. Conversely, Mother provided time to Paternal Grandmother

during Mother’s Christmas custodial time and invited Father and his family to 

celebrations. Id. at 39.

As to her fourth issue, Mother maintains that the trial court erred in 

determining factor 3 favors neither party and factor 10 favors Father, where 

they favor Mother. Id. at 40. 

Mother believes that the trial court erred in determining that 23 

Pa.C.S.A. § [5328](a)(3) – “The parental duties performed by 

each party on behalf of the Child” was in favor of neither party 

where it clearly favored Mother. Mother presented overwhelming 

evidence that she performed the parental duties on behalf of the 

Minor Child[,] which was undisputed and [F]ather agreed with on 

the record. Mother believes that the trial court erred in 

determining that 23 Pa.C.S.A. § 5328(a)(10) – “Which party is 

more likely to attend to the daily physical, emotional, 

developmental, educational and special needs of the child” favors 

the Father, where once again the facts of record make it clear that 

this factor favored Mother.

Id. Mother recounts evidence of her participation and Father’s lack of 

participation as it relates to Child’s education, medical care, and 

extracurricular activities. Id. at 41-46. She therefore asserts:
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The trial court ignored all of the above evidence and did not 

consider any of it when considering the custody factors. The trial 

court ignored all of the above facts, all of which are undisputed 

and all of which favor Mother, and to not find that 23 Pa.C.S.A. § 

5328(a)(3) and 23 Pa.C.S.A. § 5328(a)(10) favor Mother is 

uncomprehensible [sic] where the trial court has no facts in its 

decision that could outweigh the above.

Id. at 46-47.

With her fifth issue, Mother claims the trial court erred in determining 

that factors 4, 5, and 12 favor Father, where they favor Mother. Id. at 47. 

Mother states, “Mother believes that the trial court erred in determining that 

23 Pa.C.S.A. § 5328(a)(4), 23 Pa.C.S.A. § 5328(a)(5) and 23 Pa.C.S.A. § 

5328(a)(12) favor Father, which is contrary to the evidence, wherein these 

factors favor Mother.” Id. Moreover, as to her reliance on Father’s extended 

family, Paternal Grandmother in particular, for support, Mother suggests that 

she was “forced” to utilize Paternal Grandmother. Id. at 49. Further, she 

highlights that Paternal Grandmother no longer provides regular care for Child. 

Id. at 50. In addition, Mother notes her extended support system, including 

her in-laws. Id. at 50-51.

Lastly, as to her sixth issue, Mother avers that the trial court erred in 

determining factor 6 favors Father, where this factor favors Mother or neither 

party. Id. at 52. Mother argues, “Mother believes the trial court erred in 

determining 23 Pa.C.S.A. § 5328(a)(6) – ‘The child’s sibling relationships’

favors Father where the evidence of record is contrary to the trial court’s 

determination.” Id. Mother continues, “The trial court’s factual findings are 

inconsistent with the facts placed on the record. Moreover, the trial court 
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entirely failed to consider any of the siblings on Mother’s side of the family.” 

Id. Mother points to the fact that Father’s oldest son is now 18 years old and 

emancipated and no longer lives with Father. Id. at 53. Similarly, Father’s 

stepchildren are eleven years old and fifteen years old, and not close in age 

to Child. Id. Furthermore, Mother indicates that the trial court failed to 

recognize Child’s relationship with her stepson, who is three years old, as well 

as the fact that she is expecting a child in May 2018. Id. at 53-55.

With regard to the custody factors, 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 

court is required to give “weighted consideration to those factors which affect 

the safety of the child” pursuant to 23 Pa.C.S.A. § 5328(a), we have 

acknowledged that the amount of weight a court gives any one factor is almost 

entirely discretionary. M.J.M. v. M.L.G., 63 A.3d 331, 339 (Pa.Super. 2013). 

Critically, 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). Further, while a parent’s role in caring for a child may 

be considered in light of the statutory factors, “the primary caretaker doctrine, 
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insofar as it required positive emphasis on the primary caretaker’s status, is 

no longer viable.” Id.

As we construe the remainder of Mother’s claims on appeal, issues three 

through six, we interpret the issues raised at their core as disputes to the trial 

court’s findings of fact and determinations regarding credibility and weight of 

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

assessments and seeks this court to re-find facts, re-weigh evidence, and/or 

re-assess credibility to his view of the evidence. This we cannot do. Under 

the aforementioned standard of review applicable in custody matters, the trial 

court’s findings of fact and determinations regarding credibility and weight of 

the evidence are not disturbed absent an abuse of discretion. See C.R.F., 45 

A.3d at 443; see also E.R., 129 A.3d at 527. As we stated in King v. King, 

889 A.2d 630, 632 (Pa.Super. 2005):

It 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 [sic] due deference to 

the trial court’s weight and credibility determinations,’ the trial 

court erred or abused its discretion. . . .

(quoting Hanson v. Hanson, 878 A.2d 127, 129 (Pa.Super. 2005)). After a 

thorough review of the record, we find no abuse of discretion. Further, to the 

extent Mother challenges the weight attributed to any factor by the trial court, 

we likewise find no abuse of discretion. As stated above, the amount of 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.
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In the case sub judice, the trial court exhaustively and reasonably 

analyzed and addressed each factor under Section 5328(a). See Decision and 

Order, 10/16/17, at 5-10. After careful review of the record, we determine 

that the trial court’s findings and determinations regarding the custody factors 

set forth in Section 5328(a) are supported by competent evidence in the 

record, and we will not disturb them. See C.R.F., 45 A.3d at 443; see also 

E.R., 129 A.3d at 527. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/9/2018