J-S54029-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.H. IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

L.H.

Appellant No. 244 WDA 2016

Appeal from the Order January 19, 2016

In the Court of Common Pleas of Fayette County

Civil Division at No(s): No. 2361 of 2014, G.D.

BEFORE: BENDER, P.J.E., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.: FILED AUGUST 26, 2016

L.H. (“Mother”) appeals from the January 19, 2016 custody order that 

denied her petition for relocation and custody modification with respect to 

her son, G.H., born in March of 2002, and her daughter, C.H., born in 

October of 2004. We vacate and remand in accordance with the following 

memorandum.1

____________________________________________

1 On June 7, 2016, Mother filed an application for relief--motion to strike, 

wherein she requests that this Court issue an order striking the appellee 

brief of J.H. (“Father”) for being untimely filed. Mother asserts that Father’s 

counsel indicated in the certificate of service attached to the brief that it was 

served via first class mail on the due date established by this Court’s briefing 

schedule, i.e., April 26, 2016. However, Mother asserts that Father’s 

counsel filed the appellee brief on May 2, 2016, and that she received it on 

May 4, 2016. We discern no prejudice to Mother by Father’s untimely filing 

of his appellee brief. Therefore, we deny Mother’s application for relief.
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Mother and Father, the natural parents of G.H. and C.H., were married 

in 2002. N.T., 9/18/15, at 97. In February of 2014, the family moved from 

New Hampshire to Uniontown, Fayette County, Pennsylvania, where they 

resided with Father’s parents in their home.2 Id. at 99, 165. The parties 

enrolled G.H. and C.H. in the Laurel Highlands School District. Id. at 101. 

In November of 2014, Mother and Father separated. On December 19, 

2014, following a complaint for custody filed by Father, the trial court issued 

an agreed-upon order, granting Mother and Father shared legal and equally 

shared physical custody on an alternating weekly basis.

On June 20, 2015, Mother married J.D.D. (“Stepfather”) and moved to 

Sharpsburg, in Allegheny County. Id. at 96, 131-132. The parties modified 

the custody order at that time, without court intervention, with Father 

exercising primary physical custody, and Mother exercising partial physical 

custody every weekend. 

On August 3, 2015, Mother filed a “petition for relocation and custody 

modification.” In the petition, Mother asserted that she currently lives in the 

Fox Chapel School District in Sharpsburg, which is located “a short distance 

outside of the City of Pittsburgh” and approximately 70 minutes from 

Father’s residence in Uniontown, in Fayette County. Petition, 8/3/15, at ¶¶ 

____________________________________________

2

In the fall of 2002, the parties, along with G.H., who was less than a year 

old, moved from Pennsylvania to Maine and then to New Hampshire. They 

did not return to Pennsylvania until 2014. N.T., 9/18/15, at 75-77.
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1, 19. In addition, Mother asserted that Father has a history of “psychotic 

episodes”, one of which resulted in the court granting a Protection from 

Abuse (“PFA”) order on her behalf and in criminal charges currently pending 

against him. Id. at ¶¶ 12-14. Finally, Mother asserted that Father has 

attempted to interfere with her custodial time. Mother requested primary 

physical custody. 

On August 17, 2015, Father filed a counter-affidavit wherein he 

objected to both relocation and modification of the custody order. A hearing 

occurred on September 18, 2015. Mother testified that she requested 

primary physical custody so that G.H. and C.H. can attend the Fox Chapel 

School District, which she described as “a really top-rated school.” N.T., 

9/18/15, at 102. She acknowledged that C.H. has done well academically in 

the Laurel Highlands School District. Id. at 103. Mother testified that G.H. 

used to do very well academically, and he had been in honors classes in the 

Laurel Highlands School District. Id. at 104. She implied that his academic 

achievements have decreased since living in Pennsylvania. Id. 

 G.H., then age thirteen and in eighth grade, testified in camera that he 

used to be an honors student, but not at present. Id. at 20. He testified as 

follows on inquiry by the trial court:

THE COURT: [I]t seems like you been kind of stuck in the middle 

here with your parents, and that’s a bad place to be. What 

concerns me is that you were an honors student and now you 

seem like you’re a very sensitive young man and sometimes 

your grades fail when you have so much going on emotionally in 

your life. . . .
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. . .

THE WITNESS: I get anxious a lot at my mom’s house. I get, 

like, hyper anxious, like, I can’t think well, and it’s mainly 

because, it’s like, why am I here? I don’t understand any of 

this. That’s my main issue with focusing mostly. 

THE COURT: And you feel that that is carrying over into your 

school [work]? 

THE WITNESS: Yeah.

Id. at 27-28. 

G.H. resided in his paternal grandparents’ home, along with Father and 

C.H. He explained that he wants to continue residing with Father, and that 

he is not “a fan of [Stepfather] and his kids.”3,4 Id. at 12. He expressed the 

desire for Father to have sole physical custody because, in part, “my mom 

usually never has plans that consider me on the weekends.” Id. at 14. G.H. 

explained that Mother did not tell him and his sister that she was getting 

married, and that she did so “without even considering us, I mean, it kind of 

hurts.” Id. at 15.

____________________________________________

3

Father testified that the weekend following the custody hearing he will be 

moving to a new home within a mile of the paternal grandparents’ home and 

also within the Laurel Highlands School District. N.T., 9/18/15, at 58-59.

4 Stepfather testified that he has one son, age seven, and two daughters, 

ages nine and twelve. N.T., 9/18/15, at 43. He has partial physical custody 

of his children on alternating weekends and on alternating Wednesday 

evenings for dinner. Id.
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C.H., then nearly eleven years old and in sixth grade, also testified in 

camera that she does not “really enjoy going [to Mother’s house]. It’s not 

very comfortable. I’m not used to the kids and I don’t like it there.” Id. at 

35. C.H. explained, “I haven’t known those people for very long at all and I 

don’t have my own room, I share one with my brother and, like, I just don’t 

feel comfortable.”5 Id. She explained that she would also like to reside with 

Father because “I love my school and my father always has time to -- he 

goes to work, but when he gets home I enjoy being with him, he’s fun, and I 

don’t feel comfortable in Pittsburgh.” Id. at 38. 

On January 19, 2016, the trial court issued the following order: “the 

Petition to Relocate is DENIED. As the parties have modified by themselves 

the present Custody Order due to the distance now between the parties, the 

Court will upon presentation, sign a new Order reflecting the current custody 

agreement.” Order, 1/19/16 (emphasis in original). 

On February 16, 2016, Mother timely filed a notice of appeal and a 

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

1925(a)(2)(i) and (b). On that same date, Mother filed a motion for 

reconsideration. By opinion and order dated February 23, 2016, the trial 

court, after full consideration of Mother’s claims, denied the motion.

____________________________________________

5 G.H. and C.H. testified that their bedroom is in the basement at Mother’s 

house. N.T., 9/18/15, at 9, 35. Mother testified that she and Stepfather are 

considering moving to a larger house that would also be within the Fox 

Chapel School District. Id. at 110.
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On appeal, Mother presents the following issues for our review:

I. Whether the [t]rial [c]ourt abused its discretion in failing to 

adequately address all custody factors pursuant to 23 Pa.C.S. § 

5328(a)[?]

II. Whether the [t]rial [c]ourt abused its discretion in failing to 

adequately address all custody factors pursuant to 23 Pa.C.S. § 

5337(h)[?]

III. Whether the [t]rial [c]ourt abused its discretion in failing to 

dispose of Mother’s claim for custody modification[?]

IV. Whether the [t]rial [c]ourt erred in its factual findings not 

supported by the record[?]

Mother’s brief at 4.

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.

V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations omitted).

The primary concern in any custody case is the best interests of the 

child. “The best-interests standard, decided on a case-by-case basis, 

considers all factors that legitimately have an effect upon the child’s 

physical, intellectual, moral, and spiritual well[-]being.” Saintz v. Rinker,

902 A.2d 509, 512 (Pa. Super. 2006) (citation omitted).
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Instantly, we begin with Mother’s first and third issues on appeal, 

which are related. She argues that the trial court committed an error of law 

in failing to address the 23 Pa.C.S.A. § 5328(a) factors and her request to 

modify the existing custody order by granting her primary physical custody.

This Court has explained as follows.

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.” 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). 

The relevant statutory provisions are as follows.
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§ 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.

 (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.
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 (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). 

§ 5337. 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, 

educational and emotional development, taking into 

consideration any special needs of the child.
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(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.A. § 5337(h). 

In its opinion accompanying the subject order, the trial court expressly 

considered all of the Section 5337(h) relocation factors, but none of the 

Section 5328(a) custody factors. The court explained in its opinion 

addressing Mother’s petition for reconsideration that, “since this was a 

relocation request interpreted to refer to a modification of custody in the 

event relocation was granted,” it properly did not consider the Section 
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5328(a) factors. Trial Court Opinion, 2/23/16, at 3. We are constrained to 

disagree.

In D.K. v. S.P.K., 102 A.3d 467 (Pa. Super. 2014), the trial court 

issued a custody order granting the mother primary physical custody of the 

parties’ children after considering all of the Section 5328(a) custody factors 

and all of the Section 5337(h) relocation factors. The parties had relocated 

their residences following their separation and divorce. The mother initiated 

the custody action, at which time she resided in North Carolina, and the 

father in Pittsburgh, Pennsylvania. On appeal, the father argued that the 

court erred by failing to dismiss the mother’s custody complaint because she 

did not comply with the relocation procedure in Section 5337(c) by providing 

him with timely notice of her intention to relocate the children. We rejected 

the father’s argument. 

We explained in D.K. that, “section 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.” Id. at 473. We held as follows.

[I]n a case such as this, which involves a custody determination 

where neither [parent] is relocating and only the children stand 

to move to a significantly distant location, the relocation 

provisions of the Child Custody Act, 23 Pa.C.S.A. § 5337, are not 

per se triggered and the notice requirement of section 5337(c) 

does not apply. However, in such cases, the trial court shall 

consider the relevant factors set forth in section 5337(h) insofar 
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as they impact the final determination of the best interests of 

the children. 

Id. at 468. 

In this case, despite Mother pleading relocation, we conclude that her 

request before the court did not “per se trigger” the Section 5337 provisions. 

When Mother filed the subject petition on August 3, 2015, she was already 

living in Sharpsburg. Further, she and Father had modified the existing 

custody order due to her relocation whereby Father exercised primary 

physical custody, and she exercised partial physical custody every weekend. 

As such, Mother’s request was for primary physical custody of G.H. and C.H., 

which would necessitate their change in school districts, and her request 

involved only the relocation of the children. Therefore, we conclude that the 

trial court erred as a matter of law by failing to consider the Section 5328(a) 

custody factors and thereby failing to decide Mother’s custody modification 

request. See D.K. v. S.P.K., supra; see also A.V. v. S.T., 87 A.3d at 822.

We observe that Mother’s request for modification of the custody order 

involved the change of residence of G.H. and C.H. to a distant location, 

which would impact their physical, educational, and/or emotional 

development, who were then thirteen and nearly eleven years old, and who 

implied in their testimony having difficulty adjusting to Mother’s new 

marriage and family dynamic. Therefore, we recognize, pursuant to D.K., 

supra, that the trial court was required to “consider the relevant factors of 

section 5337(h) in [its] section 5328(a) best interest analysis.” D.K. v. 
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S.P.K., 102 A.3d at 477-478. As we explained in D.K., “several of the 

relevant factors of section 5337(h) are encompassed, directly or implicitly, 

by the custody factors listed in section 5328(a). Any relevant section 

5337(h) factor that is not expressly encompassed in section 5328(a) should 

be considered by the trial court under the catchall provision of section 

5328(a)(16).” Id. at 478. We hold in this case only that the trial court 

erred by considering the Section 5337(h) factors to the exclusion of all of the 

Section 5328(a) factors.

Accordingly, we vacate the January 19, 2016 custody order. We 

remand this matter to the trial court to consider Mother’s request for 

primary physical custody. In doing so, the trial court shall consider all of the 

Section 5328(a) custody factors and any relevant Section 5337(h) relocation 

factor and delineate the reasons for its decision pursuant to relevant 

statutory and case law. See A.V. v. S.T., supra; D.K. v. S.P.K., supra; 23 

Pa.C.S.A. § 5323(d). The trial court may receive additional testimony 

presented by the parties, if necessary, in thoroughly considering all of the 

Section 5328(a) custody factors and any relevant Section 5337(h) relocation 

factor.
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Order vacated. Case remanded for further proceedings. Application 

for Relief -- Motion to Strike denied. Jurisdiction relinquished.6

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/26/2016

____________________________________________

6 Based on this disposition, we need not address the remaining issues 

Mother raises in her brief.