J-A25008-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
G.R.S. : IN THE SUPERIOR COURT
: OF PENNSYLVANIA
:
v. :
:
:
M.L.S. :
:
Appellant : No. 547 MDA 2019
Appeal from the Order Entered March 15, 2019
In the Court of Common Pleas of Lancaster County
Civil Division at No: CI-15-07898
BEFORE: STABILE, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY STABILE, J.: FILED: APRIL 13 ,2020
M.L.S. (“Mother”) appeals from the order entered March 15, 2019, which
awarded her and G.R.S. (“Father”) shared legal and physical custody of their
daughter, A.K.S. (“Child”), born in September 2012. The order also purported
to deny Mother’s request for relocation and directed that Child would attend
public school in the school district where Father lives in the event the parties
end her enrollment in private school. After review, we affirm in part, vacate
in part, and remand for further proceedings.
We summarize the relevant factual and procedural history of this matter
as follows. Mother and Father married in 2010 but separated in 2012 prior to
Child’s birth. They divorced in 2014. Father began attending medical school
before the parties separated and continued his medical training after Child
was born. Because Father’s training required him to live a significant distance
away from Mother, including completing a year of rotations a few hours away
J-A25008-19
and completing his residency in a different state, he had limited involvement
with Child for the first five years of her life. After Father finished his training
in 2017, he purchased a home about two miles away from Mother in Manheim,
Lancaster County, and obtained a job as a physician at a local hospital. Father
lives with his girlfriend, A.C., and has no other children. Meanwhile, Mother
married J.K. (“Stepfather”) in 2017. Mother and Stepfather have one child
together, C.K., a female born in September 2018.
Prior to the start of these proceedings, the parties exercised custody of
Child pursuant to an agreed-upon order entered July 12, 2016, which awarded
primary physical custody to Mother and awarded shared legal custody to both
parties. The order awarded Father partial physical custody on certain dates,
but did not specify a regular schedule. After Father finished his training and
moved to Manheim in 2017, the parties exercised custody of Child informally,
eventually agreeing that Father would exercise partial physical custody “every
other Thursday through Sunday[.]” N.T., 3/13/19, at 70. On October 12,
2018, Mother filed a petition to modify custody, requesting that the trial court
enter a new order that would be more consistent with the parties’ current
circumstances. The court entered an interim order on December 20, 2018,
pending a hearing on Mother’s petition. The interim order awarded the parties
shared legal custody, awarded Mother primary physical custody, and awarded
Father partial physical custody on alternating weekends, in accordance with
the parties’ informal agreement, from after school on Thursday until 7:00 p.m.
on Sunday.
-2-
J-A25008-19
On February 4, 2019, Father filed a petition for special relief. Therein,
Father averred that he received a letter from Mother, stating that she would
be moving from Manheim to Stevens, Lancaster County, which was thirty
minutes away and in a different school district. Mother also stated that Child
would no longer be attending the private school where the parties had enrolled
her after the current school year but would instead attend public school in
Mother’s new school district. In his petition, Father contended that Mother’s
move would be a “relocation” pursuant to Pennsylvania’s child custody statute
and objected to Mother’s relocation. He requested that the trial court enter
an order directing Mother to comply with the statute’s relocation requirements
and prohibiting her from relocating pending the parties’ custody hearing. The
court entered an order on February 4, 2019, directing that Mother comply with
the custody statute’s relocation notice requirements.
The trial court conducted a hearing on March 13, 2019. Relevant to this
appeal, the parties presented testimony focusing on Mother’s motivations for
moving to Stevens and on Father’s concerns. The parties also testified as to
Father’s lack of involvement with Child during the first five years of her life,
with Mother arguing that Father should have been more involved and Father
insisting that his medical training made greater involvement impossible.
Regarding the motivations for her proposed move to Stevens, Mother
testified that she and Stepfather currently reside in a small home on a 0.07-
acre lot. N.T., 3/13/19, at 58. She expressed concern that the home is
located on an “alleyway that connects . . . two streets” and that a car recently
-3-
J-A25008-19
struck one of Child’s friends while the child was riding her bicycle in the
alleyway. Id. at 61. In contrast, Mother testified that her family’s new home
would be larger and sit on a 2.25-acre lot, which would provide Child with
plenty of space to play. Id. at 63, 79, 82. She acknowledged that her new
home would be thirty minutes away from her current home but maintained
that she and Stepfather had been unable to locate a desirable property closer
to Father. Id. at 77-78, 103-06. While Mother also acknowledged that the
move would require Child to change school districts, she noted that Child had
been attending a private school and that Child would need to change schools
regardless of whether she resided in a new district or not, assuming that the
parties stopped sending her to the private school. Id. at 64, 82.
Mother also testified in support of maintaining primary physical custody
of Child during the school year, emphasizing that she served as Child’s primary
caretaker during the first five years of her life. Id. at 65-74. Mother blamed
Father for his lack of involvement with Child, contending that he could have
been involved more consistently but simply chose not to do so. Specifically,
Mother testified that she brought Child to the home of Father’s parents for
about the first two and a half years of her life, and that she “didn’t see [Father]
much during that time[.]” Id. at 65. Father later filed a custody action and
Child began spending one or two weeks with him each month. Id. at 67-68,
95. Mother recalled that she and Father experimented with several informal
custody arrangements after he moved to Manheim in 2017, including sharing
-4-
J-A25008-19
physical custody of Child equally. Id. at 68-70. According to Mother, this
shared physical custody arrangement failed after “a month or two” because
Father “sent me a bunch of dates that weren’t going to work for him because
of his work schedule. And my concern was with [Child] starting Kindergarten,
I wanted something consistent. So I said, well, let’s come up with something
else.” Id. at 68-69. Mother stressed Father’s lack of consistency, contending
that Father, “has shown nothing but inconsistencies since he has been here.
We tried the 50/50, that wasn’t consistent. . . . He’s put a lot of priorities in
front of her upon his move up here. I found out at a child[]support hearing
that he’d gotten a second job upon his move up here. So rather than really
push for 50/50 he choose [sic] to work at his second job.” Id. at 72-74. She
contended that Father quit his second job only days before their child support
hearing. Id. at 87.
As for Father’s testimony, he objected stating that Mother’s move would
make it “more strenuous” for him to exercise custody, because it would be a
longer distance for him to travel, and because it would make it more difficult
for his extended family to spend time with Child. Id. at 149. He explained
that Child would not only be moving a half hour or more1 away from him, but
____________________________________________
1 The evidence presented during the hearing differed as to the exact length of
time that it takes to travel from Manheim to Stevens, with Mother testifying
that the drive is thirty minutes and Father testifying that the drive is thirty to
thirty-five minutes. N.T., 3/13/19, at 106, 132-33. The trial court found that
the trip takes thirty-five minutes in its opinions. Trial Court Opinion, 3/21/19,
at 6; Trial Court Opinion, 5/2/19, at 6.
-5-
J-A25008-19
that she would be moving an hour away from his parents, his cousin, and his
aunt and uncle as well. Id. at 143-44, 149.
Father also requested shared physical custody of Child and endeavored
to rebut Mother’s claim that he could have been involved in Child’s life more
consistently during his medical training. Father testified that he completed
his first year of rotations a few hours away from Mother and Child, and that
he was “very busy. Monday through Friday, I did office rotation. . . . [T]here
were other ones . . . that required weekends and overnights, and things like
that.” Id. at 122-23. He stated that he was only able to visit Child once per
month during that time. Id. at 124-25. Father explained that he completed
an additional year of rotations at hospitals closer to Mother and Child, which
allowed him to visit more regularly. Id. at 123-26, 169. After finishing his
rotations, Father began a residency in a different state. Id. at 126-27. He
characterized his schedule as “[v]ery intense” and maintained that there was
no way he could have exercised shared physical custody. Id. at 147. Father
testified that he completed his residency and moved to Manheim in July of
2017, so that he could “be a part” of Child’s life. Id. at 128. He conceded
that he took a second job at a different hospital for approximately a year after
moving to Manheim but insisted that he did so in order to pay off the credit
card debt that he amassed during his residency. Id. at 147, 159-60.
Following the hearing, on March 15, 2019, the trial court entered an
order awarding the parties shared legal custody and shared physical custody
-6-
J-A25008-19
of Child on an alternating weekly basis, with exchanges occurring each Sunday
at 7:00 p.m. The order also purported to deny Mother’s requested relocation
and directed that Child would attend school in Father’s school district if and
when she stopped attending her private school. The order stated, “Mother’s
request to relocate with the Child is DENIED. While Mother is free to move to
Stevens, Pennsylvania, and exercise her periods of custody there, the Child
shall be enrolled in [Father’s school district] should the parties decided [sic]
to discontinue private education.” Order, 3/15/19, at 1.
Regarding the reasons for its decision, the trial court filed an opinion on
March 21, 2019, in which it conducted an analysis of the custody best interest
factors listed at 23 Pa.C.S.A. § 5328(a), in addition to the custody relocation
factors listed at 23 Pa.C.S.A. § 5337(h).2 The court explained that it believed
both Mother and Father were capable parents for Child and that it would be in
Child’s best interest to spend an equal amount of time with both parties. Trial
Court Opinion, 3/21/19, at 9-12. The court also explained its decision to deny
Mother’s relocation. While the court concluded that Mother’s move would not
impair Father’s custody rights, “if those rights were limited to Father’s blocks
of custody[,]” it found that the move would still constitute a relocation because
it would impair Father’s ability to participate in Child’s “medical care, education
. . . and other activities. . . . and for him to be a part of her life beyond simply
____________________________________________
2 The trial court issued an additional opinion in response to Mother’s concise
statement on May 2, 2019.
-7-
J-A25008-19
his dedicated custody time.” Id. at 6. Finally, the court acknowledged that
Mother’s plan to move to a larger and safer property would benefit Child but
expressed disbelief that Mother could not have found a suitable property closer
to Father. Id. at 5-12. Mother timely filed a notice of appeal from the March
15, 2019 order, along with a concise statement of errors complained of on
appeal, on April 5, 2019.
Mother now raises the following claims for our review:
I. Whether the [trial] court erred as a matter of law and/or abused
its discretion by finding Mother’s move to be a relocation under
Section 5337 of the Child Custody Act[?]
II. Whether the [trial] court erred as a matter of law and/or
abused its discretion by denying Mother’s request to relocate, if
determined to be a relocation in the first place[?]
III. Whether the [trial] court erred as a matter of law and/or
abused its discretion in ordering that the Child attend [Father’s]
[s]chool [d]istrict instead of [Mother’s] [s]chool [d]istrict where
Mother has moved[?]
IV. Whether the [trial] court erred as a matter of law and/or
abused its discretion in ordering shared physical custody during
the school year where the factors under [Section] 5328 weigh
more heavily toward Mother by the [c]ourt’s own analysis[?]
Mother’s Brief at 7.
This Court adheres to the following standard of review in child custody
appeals:
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
-8-
J-A25008-19
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).
“When a trial court orders a form of custody, the best interest of the
child is paramount.” S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014)
(citation omitted). The factors that trial courts must consider when awarding
custody are set forth at Section 5328(a):
(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)
(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.
-9-
J-A25008-19
(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.A. § 5328(a).
In addition, the factors that trial courts must consider when ruling on a
request to relocate3 are set forth at Section 5337(h):
____________________________________________
3 Our child custody statute defines “relocation” as “[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.A. § 5322(a).
- 10 -
J-A25008-19
(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.
(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
- 11 -
J-A25008-19
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).
Mother’s first two claims on appeal relate to the trial court’s decision to
deny her desired relocation from Manheim to Stevens. Initially, Mother argues
that her move did not constitute a “relocation” pursuant to our child custody
statute, because it did not impair Father’s ability to exercise his custody rights
significantly. Mother’s Brief at 13, 16-17. She emphasizes that she moved
only thirty minutes away from Father, and that there was no evidence that
Child would begin seeing new medical providers such that the move would
make it more difficult for Father to attend her medical appointments. Id. at
13, 17. In any event, Mother continues, she has been the parent responsible
for Child’s medical care, education, and extracurricular activities, and Father
has stated that he does not involve himself in Child’s life outside of his own
custody time. Id. at 16-17.
In the alternative, assuming that her move did constitute a “relocation,”
Mother argues that the trial court erred by denying her request to relocate.
Mother maintains that the court’s decision is unsustainable in light of its factual
findings, which favored her. Id. at 19-25. She contends that she served as
Child’s primary caretaker for the first five years of her life, that Child is thriving
in her care, and that permitting relocation would provide Child with a larger,
- 12 -
J-A25008-19
safer, home with more space to play. Id. Mother also challenges the court’s
finding that she was not credible in her assertion that she was unable to locate
a desirable home closer to Father. Id. at 25. Mother characterizes the court’s
determination as arbitrary and unsupported by the record, suggesting that the
court must have been “contriving a new rule that any custodial parent who
plans to relocate must first recite a due diligence list of alternative relocation
sites[.]” Id.
After careful review of both the law and the certified record, we agree
with Mother and conclude that her move from Manheim to Stevens was not a
“relocation” as Section 5322 defines that term. As the trial court found in its
opinion, the relatively minor inconvenience of a thirty-five minute drive does
not “significantly impair” Father’s ability to exercise custody of Child. While
the court found that Mother’s move was a “relocation” nonetheless, because
it would “make it difficult for Father to transport [] Child to school” and to
attend her medical appointments, school events, and other activities, “beyond
simply his dedicated custody time,” the record demonstrates that the court’s
concerns were largely speculative. See Trial Court Opinion, 3/21/19, at 6.
Significantly, Father testified that he does not attempt to involve himself in
Child’s life “beyond simply his dedicated custody time” as the court suggests.
Father stated that he has never called Child on the phone while she was in
Mother’s care because “I just didn’t want to go through that drama by doing
that. I just figured her time is her time, my time is my time.” N.T., 3/13/19,
- 13 -
J-A25008-19
at 151; see also id. at 168 (“Like I said, her time is her time, my time is my
time.”). In addition, Father stated that he has taken Child to a gymnastics
practice only once, because the practices are on Mondays and he has had
custody of Child only once on a Monday. Id. at 137-38. His sole explanation
for why he did not attend practices during Mother’s custody time was that he
wanted to avoid “the awkwardness of [Mother] being there with her affiliate,
husband, or whoever[.]” Id. at 171.
Even assuming that Father’s attitude changes and that he attempts to
become more involved with Child outside of his dedicated custody time in the
future, there is little if any evidence in the record that Mother’s move would
impair his ability to do so. As Mother points out, there was no testimony that
she planned to change Child’s medical providers, such that it would be harder
for Father to attend her appointments. In addition, the record indicates that
Father has an unusual work schedule, which would likely impair his ability to
attend Child’s appointments, events, and activities, regardless of where they
occur. Father typically works twelve days per month, at least five of which he
spends on a night shift, from 5:00 p.m. to 5:00 a.m. See Plaintiff’s Exhibit 6
(Father’s work schedule). Father also works a variety of day shifts, with one
such shift lasting from 11:00 a.m. until 9:00 p.m. Id. On the days Father is
working, it is doubtful that he would be able to attend Child’s appointments,
events, and activities, even if they occurred in Manheim. On the days Father
is not working, he testified that he has no obligations at all. N.T. 3/13/19, at
- 14 -
J-A25008-19
119-20. Accordingly, he would be entirely free to attend Child’s appointments,
events, and activities, and Mother’s move would not impair his custody rights
in any way. For all of these reasons, the record does not support the court’s
finding that Mother’s move to Stevens “significantly impairs” Father’s custody
rights. We conclude that Mother’s move was not a “relocation” pursuant to
our child custody statute and that the court abused its discretion by concluding
otherwise.4
Nonetheless, because the trial court’s denial of Mother’s “relocation” has
not prejudiced her, we conclude that the court’s mistake was harmless, and
that we need not disturb that portion of the March 15, 2019 order. See In re
M.T., 607 A.2d 271, 281 (Pa. Super. 1992) (observing that not all trial court
errors require reversal and that the complaining party must first demonstrate
that the error was actually harmful in some way). While the court stated that
it was denying Mother’s “relocation,” it permitted her to move to Stevens and
exercise custody of Child there. Therefore, Mother is in the same position that
she would have been in had the court made the correct decision and reversing
the court’s order would have no practical effect.
We next consider Mother’s fourth claim for ease of disposition. Mother
contends that the trial court erred and/or abused its discretion by awarding
the parties shared physical custody during the school year. Specifically, she
____________________________________________
4 In light of this conclusion, we do not address Mother’s alternative argument
that the trial court should have granted her relocation.
- 15 -
J-A25008-19
contends that the court’s award was contrary to its own factual findings.
Mother’s Brief at 29-30. Among other things, Mother emphasizes the court’s
findings that she had almost sole physical custody of Child during the first five
years of her life; that she continued to take the lead on matters of medical
care, education, and activities, even after Father moved to Manheim; and that
Child was doing well under the previous custody order. Id. at 31-50. Mother
surmises that the court must have employed an improper presumption in favor
of shared physical custody when reaching its decision. Id. at 33-37, 43, 50.
We conclude that this claim does not entitle Mother to relief. In essence,
Mother’s claim amounts to an assertion that she must always have primary
physical custody of Child because she has had primary physical custody in the
past and Child has been doing well in her care. This assertion finds no support
in our law. Our child custody statute directs that trial courts consider the
parental duties that the parties perform on behalf of the child when awarding
custody, as well as the need for stability and continuity. See 23 Pa.C.S.A. §
5328(a)(3), (4), (9). The weight that a court assigns to any one Section
5328(a) factor is almost entirely discretionary.5 See M.J.M. v. M.L.G., 63
A.3d 331, 339 (Pa. Super. 2013) (“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.”).
____________________________________________
5 The critical exception is that trial courts must give weighted consideration to
those factors that affect the safety of the child. See 23 Pa.C.S.A. § 5328(a).
- 16 -
J-A25008-19
In this case, our review of the record supports the trial court’s finding
that Father is an appropriate parent for Child and that he is capable of caring
for her fifty percent of the time. While Father was relatively uninvolved during
the first five years of Child’s life, he testified that his lack of involvement
resulted from his demanding medical training. N.T., 3/13/19, at 122-27, 147,
169. He testified that he purchased a home close to Child after completing
his training, so that he could become more involved in her life. Id. at 128.
The court found this testimony credible. See Trial Court Opinion, 3/21/19, at
12 (“Although Mother was the Child’s primary caregiver for the first five years
of the Child’s life, this was due primarily due [sic] to Father’s medical training
schedule – not due to any lack of interest in Child on Father’s part.”). Thus,
it was within the court’s discretion to conclude that Child would benefit from
spending more time with Father and that a shared physical custody award
would be in her best interest. We see no reason to disturb this determination
and we affirm the court’s custody award.
Finally, we consider Mother’s third claim, in which she argues that the
trial court erred and/or abused its discretion by ordering that Child attend
school in the school district where Father lives, rather than the school district
where Mother has moved, in the event she no longer attends private school.
Mother contends that the court based its decision not on Child’s best interests,
but on its belief that Mother could have located a new home closer to Father
- 17 -
J-A25008-19
but chose not to do so, and on its belief that sending Child to Mother’s school
district would be inconvenient for Father. Mother’s Brief at 26-28.
It is difficult to discern the basis for the trial court’s decision that Child
should attend Father’s school district rather than Mother’s school district. The
only relevant evidence presented during the hearing was Mother’s testimony
that she reviewed the website “schooldigger.com,” which ranked her district
higher than Father’s district and indicated that the students in her district had
higher test scores. N.T., 3/13/19, at 79-80. Moreover, the court awarded the
parties shared physical custody of Child on an alternating weekly basis. Child
would be spending an equal amount of time in both districts such that neither
district would appear to be easier or more convenient for Child to attend. The
court even acknowledged that Child would need to change schools regardless
of which district she lived in, because she had been attending a private school
previously. See Trial Court Opinion, 3/21/19, at 5. Upon review, the court’s
clearest explanation of its rationale consisted of the following statement:
Mother argues that the court erred when it ordered that the
Child should attend the school district in which Father resides
rather than the school district into which Mother intended to move.
This is the crux of Mother’s disagreement with the court’s decision.
Although the court denied her request to relocate the Child, it did
not prohibit Mother from moving to Stevens or from exercising her
periods of custody there. The court also entered a shared custody
schedule, giving Mother and Father equal custody time. But the
court directed that the Child should be enrolled in Father’s school
district (if and when the parties choose to enroll her in public
school). Should Mother choose to move to Stevens, she will bear
the burden of transporting the Child to and from school, as well
as the burden of greater travel time to involve herself in the Child’s
education and extracurricular activities. In making this direction,
- 18 -
J-A25008-19
the court did not commit an error of law or an abuse of discretion.
Instead, the direction that the Child attend school in Father’s
school district is consistent with the court’s denial of Mother's
request to relocate the Child. In making that ruling, the court
analyzed the ten relocation factors under 23 Pa.C.S.A. § 5337(h)
and determined Mother had failed to carry her burden that the
move to Stevens was in the Child’s best interest.
Trial Court Opinion, 4/5/19, at 8-9 (citations omitted).
Given our conclusion that the trial court abused its discretion by finding
that Mother’s move from Manheim to Stevens was a “relocation” pursuant to
our child custody statute, we must also conclude that the court committed an
error of law by ordering that Child attend Father’s school district based on its
analysis of the Section 5337(h) custody relocation factors. Determining which
school Child should attend was purely a matter of Child’s best interest and no
analysis of the Section 5337(h) factors was necessary. See S.S. v. K.F., 189
A.3d 1093, 1098 (Pa. Super. 2018) (“When 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.”).
However, unlike our decision regarding the trial court’s mistaken denial
of Mother’s “relocation” to Stevens, we cannot conclude that the court’s school
choice decision was harmless. It appears that the court believed its school
choice and relocation decisions were the same, and that it decided that Child
would attend Father’s school district based not on an assessment of which
district would be best for Child, but on its conclusion that Mother failed to meet
her burden of proof in the relocation proceeding. It is not clear what decision
- 19 -
J-A25008-19
the court would have made had it applied the correct legal standard and may
well have ordered that Child attend Mother’s district based on its allegedly
superior academic credentials.
Based on the foregoing analysis, we conclude that we must vacate the
portion of the March 15, 2019 order directing that Child attend Father’s school
district in the event she no longer attends private school and remand this case
for the trial court to make a new school choice decision in accordance with
Child’s best interests. For the sake of clarity, the school choice provision in
the March 15, 2019 order should remain in force until the court enters its new
order. If the court believes that further evidence would be helpful in making
this decision, it may conduct an additional hearing. Because we conclude that
the court’s mistaken finding that Mother’s move to Stevens was a “relocation”
was harmless, and because we discern no abuse of discretion or error of law
in the court’s decision to award the parties shared legal and physical custody,
we affirm the March 15, 2019 order in all other respects.
Order affirmed in part and vacated in part. Case remanded for further
proceedings consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/13/2020
- 20 -