R.H. v. S.G. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
R.H. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
S.G. :
:
Appellant : 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
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* 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 counter-
affidavit.2 The trial court scheduled a hearing on Mother’s request for
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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.
2Father 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
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3 Father’s counsel stated that Father retained her one week before the hearing.
4The 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
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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
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(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
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6A 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
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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 cross-
appealed 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,
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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.
____________________________________________
13Although 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
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