J-A01009-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

R.H. 

 v. 

S.G. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2273 EDA 2019

Appeal from the Order Entered July 9, 2019

In the Court of Common Pleas of Monroe County Civil Division at No(s): 

No. 3047 CV 2014, 

No. 90 DR 2014

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

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

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

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

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

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

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

Children’s current school district. We affirm. 

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

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

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

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

____________________________________________

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

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

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

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

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

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

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

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

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

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

intended to purchase a home. Father objected pro se and filed a counteraffidavit.2

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

____________________________________________

1 Mother and Father were both acting pro se when Mother requested, and

Father opposed, relocation. Additionally, both Mother and Father filed pro se

petitions for contempt following the trial court’s denial of Mother’s petition to 

relocate to Delaware. On May 30, 2018, the trial court entered an interim 

order awarding Mother primary physical custody of Children and Father partial 

physical custody on the first, second, and fourth weekends of every month 

from Friday at 8:00 p.m. to Sunday at 8:00 p.m. See Order, 5/30/18. 

2 Father filed also filed pro se petitions for modification of custody. On March 

21, 2019, the trial court entered an interim order awarding Mother primary 

physical custody of Children and Father partial physical custody on the first, 

second, and fourth weekends of every month from Thursday at 8:00 p.m. to 

Sunday at 8:00 p.m. See Order, 3/21/19. 
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relocation for April 22, 2019. Father obtained counsel before the hearing,3

while Mother remained pro se.

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

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

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

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

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

on leaving Monroe County.” Id. at 2. 

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

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

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

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

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

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

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

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

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

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

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

____________________________________________

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

4 The record does not contain filings associated with Mother’s planned move 

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

at 11. 

The trial court thereafter heard testimony from Father regarding his 

petition for modification of custody and from Mother regarding her possible 

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

believed Pocono Mountain West school district was equivalent to the East 

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

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

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

permitted the parties to submit additional evidence regarding the two school 

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

the trial court with further evidence. 

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

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

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

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

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

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

parties shared physical custody, with Mother retaining primary physical 

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

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

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

6:00 p.m. to Sunday at 6:00 p.m., and every Wednesday from 5:00 p.m. to 
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8:00 p.m. The order directed that if Mother failed to reside in the East 

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

immediately be transferred to Father, with Mother assuming partial custody 

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

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

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

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

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

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

her primary custody of Children. 

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

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

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

considered and determined that it was in [Children’s] best interest 

to remain in their current school district. Both [Children] are 

teenagers and expressed a strong desire to avoid a change in 

school. With that determination, Mother could remain in the same 

school district or, if she wished to relocate, primary physical 

custody would revert to Father who lives in [Children’s] current 

school district. 

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

Mother raises the following issues on appeal:

The [t]rial [c]ourt erred and abused its discretion and failed to 

properly weigh or consider significant evidence of record when it 

awarded primary physical custody of [Children] to Father.

Mother’s Brief at 6. 
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Mother challenges the trial court’s determination that Father would 

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

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

was

largely based on a conclusion that [Children] had expressed a 

strong preference for remaining in their home school district and 

for living with Father, based, at least in significant part, on the 

older child’s desire to participate in sporting activities and upon 

[Father’s] testimony and promise that he would be an appropriate 

caregiver with respect to supervising [Children’s] academic 

performance. 

Id. at 8. 

Mother claims that 

Father has an extremely poor track record and had shown little to 

no real interest in taking any responsibility for [Children’s] 

academic performance. Moreover, [Children’s] expressed 

preference for residing with Father is not well-reasoned and does 

not ultimately serve their best interest. Specifically, the 

[Children] appeared to base their preference on a desire to be 

involved in sporting activities and based on friendships they had 

in their neighborhood. Those preferences, which appear to short 

change academics, when weighed against Mother’s credible and 

compelling reasons for wanting to move to a new neighborhood 

should not have been controlling. In short, [Children’s] long-term 

best interests are best served by insuring that Mother remain the 

primary caregiver, especially where academic performance is 

concerned.

Id. 

Mother argues that the trial court erred in evaluating numerous custody 

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

contends that the trial court erred in concluding that both parties were 
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involved with Children’s care, education, and activities and that both parties 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

omitted). 

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

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

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

ignored evidence of a history of a protection from abuse order against Father 
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“relating to actual physical abuse by him of her in the presence of [Children].” 

Id. at 11. 

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

including academic, favor Mother being awarded primary physical custody 

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

In this particular case[,] the [t]rial [c]ourt interviewed [Children] 

and noted that both expressed a preference for remaining in their 

current school. The [c]ourt advances no argument and makes no 

specific findings as to whether the school in question is better or 

worse than the school Mother would enroll them in if allowed to 

move with them as she requests. Based on the overwhelming 

evidence of record that Mother has been the consistent primary 

caregiver for most of the [C]hildren’s lives and that she is the only 

parent who will, in any meaningful fashion, make the necessary 

and tough decisions regarding the academic performance, it is 

respectfully submitted that the [t]rial [c]ourt over[]emphasized 

continuity in this particular school environment and[,] to the 

extent that the decision to award primary physical custody to 

Father in the event Mother moves out of the school district, that 

decision constitutes over[]emphasis on that particular factor and 

an abuse of discretion.

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

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

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

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

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

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

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

despite their current desires. Id. at 16-18.
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Father responds in his pro se brief that the trial court did not abuse its 

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

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

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

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

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

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

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

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

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

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

Pa.C.S. §§ 5321-5340, our standard of review is as follows:

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

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

of the trial court that are supported by competent evidence of 

record, as our role does not include making independent factual 

determinations. In addition, with regard to issues of credibility 

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

judge who viewed and assessed the witnesses first-hand. 

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

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

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

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

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

light of the sustainable findings of the trial court.

With any child custody case, the paramount concern is the best 

interests of the child. This standard requires a case-by-case 

assessment of all the factors that may legitimately affect the 

physical, intellectual, moral and spiritual well-being of the child.

M.J.M. v. M.L.G., 63 A.3d 331, 334 (Pa. Super. 2013) (citation omitted). 
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Section 5323 of the Act provides for the following types of awards:

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

section 5328 (relating to factors to consider when awarding 

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

custody if it is in the best interest of the child:

(1) Shared physical custody.

(2) Primary physical custody.

(3) Partial physical custody.

(4) Sole physical custody.

(5) Supervised physical custody.

(6) Shared legal custody.

(7) Sole legal custody.

23 Pa.C.S. § 5323(a).

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

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

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

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

and continuing contact between the child and another party.

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

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

to the child or an abused party and which party can better provide 

adequate physical safeguards and supervision of the child.

(2.1) The information set forth in section 5329.1(a)(1) and (2) 

(relating to consideration of child abuse and involvement with

protective services).

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

child.

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

family life and community life.
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(5) The availability of extended family.

(6) The child’s sibling relationships.

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

maturity and judgment.

(8) The attempts of a parent to turn the child against the other 

parent, except in cases of domestic violence where reasonable 

safety measures are necessary to protect the child from harm.

(9) Which party is more likely to maintain a loving, stable, 

consistent and nurturing relationship with the child adequate for 

the child’s emotional needs.

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

emotional, developmental, educational and special needs of the 

child.

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

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

appropriate child-care arrangements.

(13) The level of conflict between the parties and the willingness 

and ability of the parties to cooperate with one another. A party’s 

effort to protect a child from abuse by another party is not 

evidence of unwillingness or inability to cooperate with that party.

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

a party’s household.

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

party’s household

(16) Any other relevant factor.

23 Pa.C.S. § 5328(a).

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

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

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

“weighted consideration to those factors which affect the safety of the child” 
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pursuant to 23 Pa.C.S. § 5328(a), we have acknowledged that the amount of 

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

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

It is within the trial court’s purview as the finder of fact to 

determine which factors are most salient and critical in 

each particular case. See A.D. v. M.A.B., 989 A.2d 32, 35-36 

(Pa. Super. 2010) (“In reviewing a custody order . . . our role does 

not include making independent factual determinations. . . . In 

addition, with regard to issues of credibility and weight of the 

evidence, we must defer to the presiding trial judge who viewed 

and assessed the witnesses first-hand.”). Our decision here does 

not change that.

Id. (emphasis added). 

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

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

____________________________________________

5 Those factors are:

(1) The nature, quality, extent of involvement and duration of the 

child’s relationship with the party proposing to relocate and with 

the nonrelocating party, siblings and other significant persons in 

the child’s life.

(2) The age, developmental stage, needs of the child and the likely 

impact the relocation will have on the child’s physical, educational 

and emotional development, taking into consideration any special 

needs of the child.

(3) The feasibility of preserving the relationship between the 

nonrelocating party and the child through suitable custody 

arrangements, considering the logistics and financial 

circumstances of the parties.

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

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

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

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

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

5337(h). 23 Pa.C.S. § 5337(i)(1). 

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

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

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

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

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

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

____________________________________________

(5) Whether there is an established pattern of conduct of either 

party to promote or thwart the relationship of the child and the 

other party.

(6) Whether the relocation will enhance the general quality of life 

for the party seeking the relocation, including, but not limited to, 

financial or emotional benefit or educational opportunity.

(7) Whether the relocation will enhance the general quality of life 

for the child, including, but not limited to, financial or emotional 

benefit or educational opportunity.

(8) The reasons and motivation of each party for seeking or 

opposing the relocation.

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

of the party’s household and whether there is a continued risk of 

harm to the child or an abused party.

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

23 Pa.C.S. § 5337(h).
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the mother had primary custody of the children. Id. at 543. The mother then 

sought to relocate from Erie to Bucks County. Id.

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

the alternative custody provision granting the father primary custody if mother 

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

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

determination first and then undertaking a relocation analysis rather than 

“combining the considerations and rendering an order that awarded primary 

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

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

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

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

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

this Court affirmed the alternate or contingent custody provision finding that 

the trial court appropriately considered all relevant factors relevant to the 

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

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

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

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

law specifically discussing a custody arrangement that was contingent on a 

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

this point. However, as noted by Mother, there are cases involving the trial 
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court’s determination of the school-related issues that may inform our review 

of the trial court’s alternate custody provision. 

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

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

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

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

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

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

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

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

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

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

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

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

the mother’s choice of school.

7

 Id. at 404. This Court observed:

resolution of an otherwise ancillary matter may affect a form of 

custody and require consideration of the § 5328(a) factors. For 

instance, the choice of a child’s school may factor into a trial 

court’s decision to award a form of custody when the trial court is 

addressing a request to establish or change legal or physical 

____________________________________________

6 A 5-2-2-5 schedule refers to the alternating days of custody between the 

parties over a two-week period. 

7 The S.W.D. Court, however, vacated the portion of the order refusing to 

enforce the informal 5-2-2-5 schedule. We concluded that the trial court 

abused its discretion by failing to consider all of the Section 5328(a) factors

with respect to the father’s claims regarding the appropriate custody schedule. 

S.W.D., 96 A.3d at 406-07.
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custody in connection with the choice of school. One parent in a 

custody dispute may argue that he or she is entitled to primary 

physical custody because his or her residence has much better 

schools. On the other hand, many times . . . these items may 

appear as independent, discrete issues advanced by motion or 

petition that does not require a change in the form of custody. 

Although any decision requires consideration of the child’s best 

interest, only the former situation requires consideration and 

application of the § 5328(a) factors.

Id. at 403.

The S.W.D. Court further noted:

when parties share legal custody of a child, they may reach an 

impasse in making decisions for the child that implicate custody.

When that happens, the parties turn to the trial court to decide 

their impasse. This type of court intervention does not affect the 

form of custody and hence, the 5328(a) best interest factors do 

not all have to be considered.

Id. at 404 (citations omitted).

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

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

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

In making its decision, the trial court noted several factors that 

weighed in favor of attendance at [the mother’s choice of school]. 

[The f]ather conceded that enrollment at [his school of choice] 

was to be temporary. The trial court found attendance there 

would not be in the best interest of [the c]hild, as it would require 

[the c]hild to change schools and not be suited to maintaining 

consistency in his life. The trial court also found that [the father’s] 

chief concern with [the m]other’s school was its distance from his 

home. While the trial court was sympathetic to this concern, on 

balance it did not find this to be weighty enough to warrant 

attendance at [the father’s school of choice]. Finally, the trial 

court found no persuasive evidence that [the c]hild would receive 

a substandard education at [the mother’s school of choice]. On 
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these findings, supported by record evidence, we cannot find an 

abuse of discretion.

Id.

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

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

where she moved following her divorce and the resolution of equitable 

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

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

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

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

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

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

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

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

further noted that the trial court improperly relied on hearsay testimony 

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

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

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

1110-11.

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

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

____________________________________________

8

In Fox, both parents’ residences were in the same county.
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though the mother requested to relocate to a different county and the father 

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

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

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

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

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

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

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

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

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

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

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

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

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

Id. 

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

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

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

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

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

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

required that the parties arrange their residential situations so that the 

children could remain in the Pennsbury school district or pay tuition for the 
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Pennsbury school district in equal shares. Id. The mother and father crossappealed the trial court’s order regarding the children’s school and the 

allocation of tuition. Id. at 1097. 

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

[w]hen parties cannot resolve a dispute about where to educate 

their children, the court may act as arbiter to decide that issue, 

based on the best interests of the children. If the court is 

addressing a request to modify custody in conjunction with the 

choice of school, the court’s choice of school may factor into the 

court’s custody decision. The court’s choice of school may in fact 

require it to modify the parties’ physical custody award, in 

particular “when the parties live far apart, making it impractical 

for one parent to transport the child to school.” Continuity in an 

educational environment is an important, but not controlling, 

factor to be considered by the court in making a school or custody 

decision, and over-emphasis on this factor may constitute an 

abuse of discretion. 

A court may order parents to pay for the cost of school tuition as 

an additional expense to the standard child support award. 

However, the court may order a party to pay the cost of tuition 

only after the court determines that doing so is reasonable in light 

of the parties’ respective incomes and expenses. An order 

directing a party to pay for tuition, like any support order, “must 

be fair, non-confiscatory and attendant to the circumstances of 

the parties.”

* * *

[I]n allowing [the m]other to move to Chester County, but 

ordering the [c]hildren to stay enrolled in Pennsbury School 

District, the court created an additional expense that neither party 

requested or expected. And, because at the time of the hearing, 

the court considered school choice as a custody issue only, it made 

scarce inquiry into the parties’ financial situations. It made no 

finding that the tuition expense was “reasonable,” and on this 

record, we fail to see how it could have done so. The court also 

failed to allocate the tuition cost in accordance with the support 

statute. The court thus abused its discretion.
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[I]t appears that the court was attempting to drive a compromise 

between the parties. However, the parties informed the court that 

they had reached no such compromise. The resultant tuition cost 

thus existed due to the court’s decision alone. The court’s choice 

of school, made without regard to the financial ramifications to the 

parties—and, by extension, to their [c]hildren—ignored the 

realities of the case.

On remand, unless the parties request otherwise, the court must 

choose a school that does not financially burden the parties, and 

it must make its decision by considering both the relocation and 

custody factors. 

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

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

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

trial court fashioned an alternate custody provision contingent on the school 

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

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

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

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

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

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

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

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

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

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

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

proposed move will not significantly impair Father’s custody rights”). 
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In the instant case, the trial court, in its order entered following the 

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

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

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

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

Factor 2—The present and past abuse committed by a party or 

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

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

better provide adequate physical safeguards and supervision of 

the child.

This factor favors neither party. There was no evidence presented 

by either party about present or past abuse and we find this factor 

remains neutral.

Factor 3—The parental duties performed by each party on behalf

of the child.

This factor does not favor either party. [Children] have been well 

cared for by both parents. Although Mother has been the primary 

caregiver for [Children], both of the parties are involved with 

[Children’s] care, education and activities.

Factor 4—The need for stability and continuity in the child’s 

education, family life and community life.

This factor favors neither party. Both parents have been a stable 

and permanent influence in the lives of [Children]; therefore, we 

find that factor 4 favors neither party.

* * *

Factor 6—The child’s sibling relationships.

This factor favors Father. [Children] live with Mother and their 

older siblings live with Father. [M.H.], [Children’s] older sister[,] 

assists Father in child care when they are in Father’s custody. 

Both [Children] indicate that they have good relationships with 

[their siblings. Children] see their older siblings on the first, 
J-A01009-20

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second, and fourth weekends of every month; we consider these 

relationships to be important and, therefore, we believe this factor 

favors Father.

* * *

Factor 10—Which party is more likely to attend to the daily 

physical, emotional, developmental, educational and special 

needs of the child.

This factor favors Mother. Mother has been providing for 

[Children] since they were born. She has taken [Children] to 

medical appointments and provided for their daily needs. While 

Father has provided for their needs when they are in his custody, 

Mother has expressed concern for [Children’s] educational needs. 

Father would like [J.H.] to be involved in sports and Mother stated 

that she would like his education to come first. Mother would not 

like [J.H.] to participate in sports unless his grades were 

adequate. We believe that the relationship both parties are 

providing emotional, developmental and education[ for Children;] 

nevertheless, we believe that this fa[vors] Mother.

Factor 12—Each party’s availability to care for the child or ability 

to make appropriate child-care arrangements.

This factor favors Father. Father testified that his daughter and 

eldest son live with him and help with child care. Father’s 

girlfriend . . . also provides child care for [Children]. Mother has 

not indicated that there is anyone to assist her in child care for 

[Children]. She testified that [Children] are sometimes at home 

alone until she gets home from work. In her Custody 

Questionnaire, entered into evidence as Defendant’s Exhibit #2, 

Mother indicates that she works Monday through Friday from 7:30 

am until 6:00 p.m. and on Saturdays from 7:30 am until 6:00 

p.m. Father testified that he works from 5:00 am until 3:00 or 

3:30 p.m. and has no weekend work. However, Father indicated 

that [Children’s older sister] and his girlfriend . . . assist him with

Children. We believe that this factor favors Father.

Factor 13—The level of conflict between the parties and the 

willingness and ability of the parties to cooperate with one 

another. A party’s effort to protect a child from abuse by another 

party is not evidence of unwillingness or inability to cooperate with 

that party.
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This favors neither party. Father complains that Mother will not 

let [Children] play sports and he wants their daughter or older son 

involved with their lives. Mother is concerned that [Children] will 

do anything to please Father. She believes that Father allows 

[Children] get away with too much; however, Mother recognizes 

that [Children] love and need their Father.

* * *

Factor 16—Any other relevant factor. 

In this case, the parties have shared legal and physical custody of 

[Children. Children] love and want to be with their parents. We 

are concerned that the parties are incapable of meaningful 

communicating with each other. We are convinced that both 

parents love and nurturing towards [Children] and want what is 

best for them. However, Mother has been the primary caregiver 

for the minor children since their birth.[9] Mother wants to move 

to be closer to her employment and she testified that she had 

problems with some of her current neighbors who are using drugs. 

Mother was in subsidized housing but now is able to find other 

housing. Father wishes for [Children] to participate in sports and 

stay in their current school district. While Mother seems to be

concerned about [J.H’s] participation in sports if it conflicts with 

his schooling and grades.

As we have stated above, many of the custody factors are neutral; 

however, we believe that at this time it would be in [Children’s] 

best interest to remain in their current school district. 

Accordingly, if Mother choses to remain in the East Stroudsburg 

[(South)] School District, it would be in [Children’s] best interest 

to live primarily with Mother. However, if Mother wishes to move 

from the East Stroudsburg (South) School District, necessitating 

a change in school districts for [Children], we believe that it would 

be in [Children’s] best interest to live primarily with Father.

____________________________________________

9 We note that the primary caretaker doctrine, under which a trial court was 

to give “positive consideration” to the parent who was the primary caretaker 

when the parents are both fit, is no longer viable. See M.J.M., 63 A.3d at 

339. Nevertheless, a court may still consider a parent’s role as a primary 

caretaker when considering the Section 5328(a) factors. Id.
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After careful consideration of the testimony and evidence in this 

matter, we believe that it is in [Children’s] best interest to have 

the parties continue to share legal and physical and that is it in 

their best interest to remain in the East Stroudsburg (South) 

School District.

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

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

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

protection from abuse order against Father entered when Mother and Father 

ended their relationship,

10 and Father testified that Mother was abusive 

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

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

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

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

and conclusions. 

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

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

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

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

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

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

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

____________________________________________

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

11 Id. at 30, 33-37. 

12 Id. at 130-33, 135, 138, 147-48.
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Stroudsburg (South) school district, (5) her motives for seeking to move from 

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

preferences against her intention to retain primary physical custody of 

Children. 

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

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

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

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

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

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

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

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

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

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

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

5328(a) factors.13 

Order affirmed. 

____________________________________________

13 Although we have concluded that Mother’s specific arguments do not entitle 

her to appellate relief from the alternative custody provision, Mother is not 

precluded from seeking a modification of the custody order based on evidence 

that the modification will be in the best interest of Children. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/8/20