J-S09030-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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

PENNSYLVANIA

Appellee

v.

L.A.T.,

Appellant No. 1525 WDA 2014

Appeal from the Order Entered August 21, 2014

In the Court of Common Pleas of Fayette County

Civil Division at No(s): 1841 OF 2011 G.D.

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

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

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

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

issue of primary custody/continuation of the temporary approval of 

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

make the required best-interest considerations pursuant to the Child 

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

the custody order and remand for further proceedings. 

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

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

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

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

filed a complaint in divorce five months later. When Father filed the divorce 
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complaint he was on active duty in the United States Air Force and stationed 

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

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

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

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

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

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

mediator. The mediation process was resolved with a temporary consent 

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

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

physical custody between Sunday and Tuesday evenings while he was living 

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

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

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

his daughter.1 

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

entered a modified custody consent order, wherein Mother maintained 

____________________________________________

1

In her brief, Mother claims that she resided in Farmington, Pennsylvania at 

this juncture. While not explicitly expressed in the consent order, it is 

apparent from the location of the child’s daycare facility in Farmington and 

the designated location for the custody exchanges in Uniontown, 

Pennsylvania, that Mother no longer resided with her mother-in-law in 

Brownsville. We observe that the three towns are located relatively close 

together on a northwestern-southeastern axis in Fayette County with 

Uniontown situated roughly equidistant between the other locations. 
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primary physical custody and Father exercised physical custody from 

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

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

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

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

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

the relocation provisions in the Child Custody Act.

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

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

order that awarded shared legal custody and fashioned a custody 

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

between Monday and Wednesday afternoons. Father maintained physical 

custody between Wednesday and Friday afternoons, and the parties 

alternated weekend custody between Friday and Monday afternoons. The 

trial court purposely molded the arrangement so that Mother was granted 

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

custody schedule for major holidays.

____________________________________________

2 The request for a de novo trial was procedurally improper. While the trial 

court chastised Father for the misstep and stressed that the correct course 

to modify an existing custody order was to file a motion for modification and 

for the referral of a mediator, the trial court scheduled the evidentiary 

hearing and entered a custody order. 
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As it relates to the issue that we confront on appeal, paragraph four of 

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

(4) Mother is granted permission to temporarily relocate to 

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

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

option she wishes to exercise. Any other relocation by either 

party, including any permanent relocation to Bruceton 

Mills, West Virginia by Mother, is subject to the provisions of 

Pennsylvania statute, and this Court will retain jurisdiction of 

[A.T.] and this action for that purpose. . . . If both parents act 

cooperatively, they can jointly choose where [A.T.] attends 

school. However, neither party has unilateral control as to the 

best location for [A.T.] to attend school when she becomes of 

age, and if the parties are unable to agree, the Court will make 

the best choice from the options available at that time.

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

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

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

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

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

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

arrangement based upon Mother’s temporary relocation to West Virginia 

would be impractical once school started. 

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

entered the mediator’s recommended custody order granting shared legal 

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

recommended order did not confront the relocation issue expressly, the 

latter provision amounted to a de facto ratification of Mother’s “temporary 
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relocation.” The order provided that it superseded all prior custody orders 

and included the boilerplate language that it fully resolved the issues 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

custody during the 2015 summer break, with Mother receiving overnight 
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custody on alternating weekends. See Interim Court Order, 10/21/14, at 2-

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

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

year.

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

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

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

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

substantive aspects of the relocation provisions outlined in the Child Custody 

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

hearing, 

Mother’s relocation from Brownsville to Farmington to Bruceton 

Mills does not comply with the statutory requirements set forth 

in 23 Pa.C.S. § 5337(h)[3]in that it does not currently allow 

____________________________________________

3 Section 5337(h) of the Child Custody Act enumerates ten factors a court 

must consider in determining whether to grant a proposed relocation:

(h) Relocation factors.--In determining whether to grant a proposed 

relocation, the court shall consider the following factors, giving 

weighted consideration to those factors which affect the safety of the 

child:

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

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

with the nonrelocating party, siblings and other significant 

persons in the child’s life.

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

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

(Footnote Continued Next Page)
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Father, who exercises shared physical and legal custody, a 

reasonable opportunity to preserve his long-term relationship 

with the child. The original temporary approval of relocation was 

based on factors that either did not exist at all, or that 

disappeared shortly after the order was entered. Further the 

relocation currently offers no significant advantages to the child, 

and the advantages to Mother in the relocation do not outweigh 

the contrary interests of the Father and the child[.] 

(Footnote Continued) _______________________

educational and emotional development, taking into 

consideration any special needs of the child.

(3) The feasibility of preserving the relationship between the 

nonrelocating party and the child through suitable custody 

arrangements, considering the logistics and financial 

circumstances of the parties.

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

maturity of the child.

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

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

other party.

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

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

financial or emotional benefit or educational opportunity.

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

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

benefit or educational opportunity.

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

opposing the relocation.

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

member of the party’s household and whether there is a 

continued risk of harm to the child or an abused party.

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

23 Pa.C.S. § 5337(h).
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Trial Court Order, 8/21/14, at 2. In its subsequent Rule 1925 opinion, the 

trial court expounded on its consideration of the relocation factors and 

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

significant contribution to its decision because they were inapplicable, 

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

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

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

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

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

On appeal, Mother levels the following allegations:

I. Whether the trial court erred or abused its discretion by 

considering the issue of relocation, when this case did not 

involve a relocation at all, and the child was not moving a 

significant distances?

II. Whether [the] trial court erred or abused its discretion by 

deciding this case under the relocation statute, when the matter 

before the court was Father’s petition for primary physical 

custody of the minor child, and when Mother did not have notice 

that relocation would be the subject of the August 18, 2014 

hearing. 

III. Whether the trial court erred or abused its discretion by 

making numerous findings of fact and considering additional 

relocation and custody factors in its [R]ule 1925(a) opinion, 

when it failed to make such findings and consider all relevant the 

statutory factors in the August 21, 2014 custody order. 

IV. Whether the trial court’s findings that Mother’s residence 

does not allow Father to preserve his long term relationship with 

the minor child, and that Mother’s residence offered no 

significant advantages to the child, are supported by competent 

evidence. 
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Mother’s brief at 6-7.4

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

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

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

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

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

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

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

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

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

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

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

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

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

Viewing the proceedings sub judice from the standpoint that this case 

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

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

____________________________________________

4 Since we reverse and remand, we do not address Mother’s final argument 

assailing aspects of the trial court’s findings of fact. However, we reiterate 

that due to our deferential review of the trial court’s factual findings and 

determinations of weight and credibility, we must accept those findings and 

determinations that are supported in the certified record by competent 

evidence. See D.K. v. S.P.K., 102 A.3d 467, 478 (Pa.Super. 2015).
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issue without having provided her formal notice that the status of her 

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

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

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

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

heard. 

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

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

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

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

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

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

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

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

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

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

interest factors enumerated in § 5328(a). 

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

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

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

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

paragraph four of the May 2012 order, Mother had actual notice that her 
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temporary relocation would be at issue. Finally, Father asserts that the trial 

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

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

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

inapplicable herein because Mother did not demonstrate prejudice due to the 

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

notice of appeal. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

issue explicitly conditioned the temporary relocation upon A.T.’s age. That 
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order provided unambiguously, “Mother is granted permission to temporarily 

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

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

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

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

party, including any permanent relocation to Bruceton Mills, West 

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

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

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

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

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

temporary permission granted by the court. The current distance between 

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

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

¶ 3. 

Although the language included in both the May 2012 order and 

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

juncture, the mediator overlooked the foregoing provision in issuing a 

recommended custody order that effectively ratified Mother’s relocation by 

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

exacerbated the mediator’s misstep by summarily adopting the 

recommended order and failing to recognize that the order conflicted with 
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the express terms of its May 2012 order relating to Mother’s temporary 

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

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

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

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

Mother’s assertion overlooks the procedural history and conveniently 

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

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

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

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

were which parent would exercise physical custody and concomitantly where 

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

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

best-interest determination completely.

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

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

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

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

custodial rights pursuant an agreement. The father maintained primary 

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

of supervised custody in North Carolina. Approximately one year after 

executing the custody agreement, the mother filed a complaint for primary 
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physical custody. Following a hearing, the trial court awarded the mother 

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

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

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

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

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

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

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

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

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

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

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

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

5337 notice provisions. 

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

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

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

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

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

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

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

that case, i.e., the lack of a relocating party, is absent in the case at bar. 
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Contrary to Mother’s fervent protestations, the record bears out that she is a 

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

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

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

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

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

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

The Child Custody Act enumerates the following factors that a trial 

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

awarding any form of custody:

____________________________________________

5

 Based upon the express terms of the May 2012 order alerting Mother to 

the fact that her temporary relocation would be examined when A.T. became 

school age, Mother can be presumed to have had actual notice that the trial 

court would address her continued relocation when A.T. became school age. 

Nevertheless, the trial court violated Mother’s due process rights by failing to 

give her express notice that the evidentiary hearing would encompass her 

outstanding temporary relocation. The trial court’s scheduling orders and 

hearing notices did not mention relocation expressly. Further, although 

Father’s motion for modification implicitly placed Mother’s temporary 

relocation in dispute, neither the averments therein nor Father’s de novo

appeal from the ensuing order provided specific notice of that issue. 

Moreover, the trial court committed reversible error by confronting the 

relocation issue without the benefit of the parties’ evidence and arguments 

specifically tailored to that issue. As Mother points out, Father’s petition 

sought primary custody and, at the outset of the hearing, the trial court 

advised the parties that the hearing concerned which state A.T. would enroll 

in school. The trial court declined to elicit, and the parties failed to adduce, 

significant evidence that related to the § 5337(h) relocation factors. Indeed, 

it is apparent from the certified record that, when the trial court addressed 

the relocation issue, it did so retroactively by gleaning from the record the 

evidence that it deemed relevant. 
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(1) Which party is more likely to encourage and permit frequent 

and continuing contact between the child and another party.

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

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

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

better provide adequate physical safeguards and supervision of 

the child.

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

(relating to consideration of child abuse and involvement with 

protective services).

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

child.

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

family life and community life.

(5) The availability of extended family.

(6) The child’s sibling relationships.

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

child's maturity and judgment.

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

parent, except in cases of domestic violence where reasonable 

safety measures are necessary to protect the child from harm.

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

consistent and nurturing relationship with the child adequate for 

the child's emotional needs.

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

emotional, developmental, educational and special needs of the 

child.

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

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

make appropriate child-care arrangements.
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(13) The level of conflict between the parties and the willingness 

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

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

not evidence of unwillingness or inability to cooperate with that 

party.

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

of a party’s household.

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

a party’s household.

(16) Any other relevant factor.

23 Pa.C.S. § 5328(a).

We recently reiterated the following relevant principles:

When deciding a petition to modify custody, a court must 

conduct a thorough analysis of the best interests of the child 

based on the relevant Section 5328(a) factors. E.D. v. M.P., 33 

A.3d 73, 80 (Pa.Super. 2011). “All of the factors listed in section 

5328(a) are required to be considered by the trial court when 

entering a custody order.” J.R.M. v. J.E.A., 33 A.3d 647, 652 

(Pa.Super. 2011) (emphasis in original). Section 5337(h) 

requires courts to consider all relocation factors. E.D., supra at 

81. The record must be clear on appeal that the trial court 

considered all the factors. Id.

Section 5323(d) provides that a trial court “shall delineate 

the reasons for its decision on the record in open court or in a 

written opinion or order.” 23 Pa.C.S.A. § 5323(d). Additionally, 

“section 5323(d) requires the trial court to set forth its 

mandatory assessment of the sixteen Section 5328 custody 

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

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

appeal denied, __ Pa. __, 70 A.3d 808 (2013). Section 5323(d) 

applies to cases involving custody and relocation. A.M.S. v. 

M.R.C., 70 A.3d 830, 835 (Pa.Super. 2013).

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

required amount of detail for the trial court's explanation; all 

that is required is that the enumerated factors are considered 

and that the custody decision is based on those considerations.” 
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M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa.Super. 2013), appeal 

denied, __ Pa. __, 68 A.3d 909 (2013). A court's explanation of 

reasons for its decision, which adequately addresses the relevant 

factors, complies with Section 5323(d). Id.

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

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

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

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

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

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

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

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

mandated assessment of the statutory factors consisted of the following 

passage:

The above paragraphs of this Order [(relating to Mother’s 

continued temporary relocation for the upcoming school year, 

A.T.’s enrollment in Brownsville schools for the following school 

year, and the concomitant physical custody arrangements to 

effectuate her enrollment)] are based on the Court's finding that 

Mother's relocation from Brownsville to Farmington to Bruceton 

Mills does not comply with the statutory requirements set forth 

in 23 Pa. C.S. A. §5337(h) in that it does not currently allow the 

Father, who exercises shared physical and legal custody, a 

reasonable opportunity to preserve his long term relationship 

with the child. The original temporary approval of relocation was 

based on factors that either did not exist at all, or that 

disappeared shortly after the order was entered. Further, the 

relocation offers no significant advantages to the child, and the 

advantages to Mother do not outweigh the contrary interests of 

the Father and the child. Further, while Fathers pre-separation 

marital misconduct may have provoked an understandable 

emotional reaction from Mother, as per testimony, it cannot be 
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considered in this custody proceeding as a valid reason for 

relocation of the child.

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

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

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

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

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

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

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

in § 5328(a). 

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

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

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

modified the prior physical custody agreement. After reviewing the relevant 

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

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

____________________________________________

6 Contrary to Father’s understanding of the C.B. Court’s holding, Mother was 

not required to establish prejudice in order to obtain relief. In C.B., supra, 

we announced a new interpretation of §5323(d) and declined to remand the 

matter. We noted the trial court did not have the benefit of our novel 

perspective when it entered the custody order, that it had complied 

substantially with the preexisting law, and that the appealing party did not 

inadvertently forfeit any issues due to the trial court’s delay. Instantly, 

however, the omission is neither justified nor benign. The trial court failed 

to comply with the ensconced statutory paradigm regarding the 

determination of a child’s best interest. 
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concomitantly with relocation. We reasoned, “Crucially, the order directly 

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

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

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

triggered § 5328(a). 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the school that the child would attend. We reasoned, “the court's decision 
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here merely resolved an impasse between the parties who shared the legal 

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

arbitrated a dispute between Mother and Father regarding schooling, instead 

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

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

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

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

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

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

trial court indicated a desire to award approximately equally divided custody 

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

condition is unlikely to occur where Mother and Father reside approximately 

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

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

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

factors in resolving Father’s petition for modification seeking primary 

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

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

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

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

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

Pa.C.S.A. § 5323(a).”). Instantly, the face of the custody order stated that 
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it was addressing physical custody as well as Mother’s temporary relocation. 

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

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

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

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

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

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

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

seventeen enumerated best-interest factors. This attempt to cobble 

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

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

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

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

frame. The trial court failed to satisfy this mandate.

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

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

relinquished. 

Allen, J. joins.

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

Judgment Entered.
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Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/18/2015