J-S72045-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

C.E.S. IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

A.C.F.

APPEAL OF: A.C.F. NOW A.F.M. No. 1284 WDA 2014

Appeal from the Order entered July 7, 2014, 

in the Court of Common Pleas of Blair County, 

Civil Division, at No(s): 2009 GN 242

BEFORE: BENDER, P.J.E., SHOGAN, and STRASSBURGER*, JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 02, 2015

A.F.M. (Mother) appeals from the order entered July 7, 2014, in the 

Blair County Court of Common Pleas, which readopted the trial court’s prior 

order of April 29, 2013, following remand from this Court. The April 29, 

2013 order awarded shared physical custody of Mother’s minor son, G.S. 

(Child), to his biological father, C.E.S. (Father) during the school year, with 

Mother having shared physical custody during the summer, certain holidays, 

and whenever Mother visits Blair County. The order also awarded the 

parties shared legal custody. We affirm.

A prior panel of this Court summarized the relevant facts and 

procedural history of this matter as follows.

Mother and [Father] were never married. Child was born in 

September of 2007. The parties separated in January of 2009. 

 

* Retired Senior Judge specially assigned to the Superior Court.
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Following a hearing on October 16, 2009, an order was entered 

on October 22, 2009, directing the parties to share physical 

custody. At the time, the parties lived in close proximity to each 

other in Altoona.

On March 17, 2011, Mother filed a petition for modification 

of the October 22, 2009 order due to her relocation to another 

state. On May 6, 2011, Mother filed a petition for special relief 

seeking a temporary custody order until the custody evidentiary 

hearing could be held due to an emergency which required her 

to relocate to Louisiana immediately. Mother also filed a notice 

of proposed relocation. At a hearing on May 16, 2011, Mother’s 

petition for special relief was denied, and Father served a 

counter-affidavit regarding relocation on Mother.

On September 15, 2011, a custody hearing was held 

regarding Mother’s relocation to Louisiana. An order was 

entered on September 30, 2011, which alternated the custody of 

Child in three-month intervals. The order also provided for 

“Court review the year the child is scheduled to begin first grade 

and not before then.” As Child approached first grade and the

parties were unable to agree on where Child should reside and 

attend school, Father filed a petition for custody review on June 

7, 2013. A hearing was held on August 29, 2013, and an order 

was entered on that date awarding Father primary physical 

custody of Child during the school year and awarding Mother 

periods of partial physical custody during the summer months, 

holidays, and whenever she is visiting Altoona. Mother’s petition 

for reconsideration was denied without further hearing. Mother 

filed a timely notice of appeal along with a concise statement of 

errors complained of on appeal. The trial court issued an opinion 

in support of its decision on October 28, 2013.

C.E.S. v. A.C.F., 1570 WDA 2013 (Pa. Super. 2014) (unpublished 

memorandum at 1-2).

On June 10, 2014, a panel of this Court vacated the trial court’s 

August 29, 2013 order. The panel concluded that a number of the court’s 

statements lacked support in the record. Specifically, the panel rejected the 

court’s finding that Child had a relationship with his maternal grandparents 
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while living with Father. Id. at 6. The panel “further question[ed]” the 

court’s view that Child could maintain his close relationship with his halfbrother (Half-Brother), Mother’s son from another relationship, who was only 

one year older than Child, when the trial court’s custody order would result 

in Child only seeing Half-Brother for approximately one month during the 

summer. Id. at 7. The panel rejected the finding that “the father of [HalfBrother] has any interest or intention of getting together with Father and 

Child during the periods that both children are in Altoona.” Id. Finally, the 

panel concluded that the court had considered erroneously the custody 

relocation factors laid out at 23 Pa.C.S. § 5337(h), rather than the best 

interest factors found at 23 Pa.C.S. § 5328(a). Id. at 7-8. Accordingly, the 

panel remanded the case for the court to “reconsider the testimony, analyze 

this matter in light of the Section 5328(a) custody factors, and write a new 

opinion supporting its decision.” Id. at 8 (footnote omitted).

The trial court complied with this Court’s memorandum by issuing an 

opinion and order dated July 7, 2014. Therein, the trial court indicated that 

it had considered the Section 5328(a) custody factors, and readopted its 

August 29, 2013 order.1 On August 6, 2014, Mother filed a notice of appeal, 

 

1

In her brief, Mother states that the trial court failed to enter a new order to 

replace the vacated August 29, 2013 order. Mother’s Brief at 10. We 

conclude that the trial court’s July 7, 2014 opinion and order function as an 

appealable order, and that Mother’s appeal is properly before us. While the 

trial court’s opinion and order did not include a separate “order” section, the 

court did include a “conclusion” section in which it stated that the best 

interests of Child would be served by the provisions of its August 29, 2013 

order.
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as well as a concise statement of errors complained of on appeal pursuant to 

Pa.R.A.P. 1925(a)(2)(i) and (b). The trial court filed another opinion on 

August 12, 2014.

Mother now raises the following issues for our review.

I. Whether the trial court erred in failing to render a decision on 

remand which was consistent with this Court’s findings, 

conclusions and directives in its remand order.

II. Whether the trial court erred and/or abused its discretion, 

under the law and the facts and circumstances of this case, by 

entering a custody order which separated siblings for virtually 

the entire year.

III. Whether the trial court erred and/or abused its discretion in 

granting primary physical custody of the subject child to the 

Plaintiff/Father under the law and the facts of this case.

Mother’s Brief at 4 (trial court answers omitted).

We address Mother’s claims mindful of our well-settled standard of 

review.

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).
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“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 (Pa. Super. 2014) 

(citation omitted). The factors to be considered by a court when awarding 

custody are set forth at 23 Pa.C.S. § 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. 

(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).2

Instantly, the trial court concluded that the majority of the Section 

5328(a) factors either did not apply to the present case, or did not weigh in 

favor of either party. Trial Court Opinion, 7/7/2014, at 11-12. Notably, the 

trial court observed that Section 5328(a)(5) weighed in favor of Father, as 

Child’s extended family resides in Pennsylvania. Id. at 11-12. The court 

also observed that Section 5328(a)(6) weighed in favor of Mother, as a 

 

2 Section 5328 has been amended to include an additional factor at 23 

Pa.C.S. § 5328(a)(2.1) (relating to consideration of child abuse and 

involvement of protective services). Because Father’s petition for custody 

review was filed prior to January 1, 2014, the effective date of Section 

5328(a)(2.1), that factor does not apply to the instant case. See § 6 of 

2013, Dec. 18, P.L. 1167, No. 107, effective 1/1/14. Moreover, that factor 

is not relevant to this case.
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result of Child’s relationship with Half-Brother. Id. However, the court 

concluded that Sections 5328(a)(5) and (6) “cancel each other out in this 

case, as based on the testimony about the [C]hild, the [c]ourt cannot assign 

a greater importance to one than the other.” Id. at 11. Ultimately, the 

court reasoned that “the deciding factor” in this case was that Father was 

more likely to maintain a loving, stable, consistent and nurturing relationship 

with Child adequate for Child's emotional needs, pursuant to Section 

5328(a)(9). Id. at 12. The court explained that “Father put the [C]hild’s 

needs and concerns first” in that he, inter alia, was involved in Child’s 

schooling, communicated with Mother about Child’s schooling, was willing to 

facilitate a relationship between Child and Mother’s relatives, listened to 

Child’s fears, and expressed concern with respect to the supervision of Child 

while he stayed in Mother’s home. Id. at 13. The court also noted that 

Father’s home was “[C]hild’s known physical environment since birth.” Id.

In contrast, the court found that “Mother painted an idyllic picture of 

the [C]hild’s life in Louisiana, but her testimony was less than credible.” Id. 

The court expressed concerns about Mother’s parenting style with respect to 

Child, but also found that Mother and Father were equally capable of caring 

for Child. Id. at 12. 

Mother’s first issue on appeal is that “the trial court erred in failing to 

render a decision on remand which was consistent with this Court’s findings, 

conclusions and directives in its remand order.” Mother’s Brief at 10 

(capitalization omitted). Mother argues that, contrary to the instruction of 
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this Court, the trial court did not reconsider its prior order of August 29, 

2013, but rather “simply reviewed the custody factors and drafted an 

opinion in support of its prior decision.” Id. Mother also complains that the 

court “failed to acknowledge and address the prior conclusions which this 

Court found not to be supported by the record in this case.” Id. at 12. 

Mother claims that the court “attempted to support its prior decisions by 

essentially characterizing Father’s testimony as ‘credible’ and Mother’s 

testimony as ‘not credible’ in a great many respects.” Id. at 11. Mother 

contends that this was inconsistent with the court’s prior opinions, including 

the court’s opinion in support of its order of April 29, 2013, which 

characterized Mother as credible, and which were concerned primarily with 

the distance between the parties. Id. at 11-12. 

We find no merit in Mother’s claim. In our June 10, 2014 

memorandum, we ordered the trial court to “reconsider the testimony, 

analyze this matter in light of the Section 5328(a) custody factors, and write 

a new opinion supporting its decision.” C.E.S., unpublished memorandum at 

8 (footnote omitted). The trial court did exactly as instructed. The fact that 

the court did not reach a different decision following remand does not 

contradict this Court’s order, and does not support Mother’s contention that 

the court abused its discretion. 

Moreover, the credibility findings in the trial court’s July 7, 2014 

opinion and order were not inconsistent with the trial court’s prior opinion in 
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support of its order of April 29, 2013.3 In its opinion in support of the April 

29, 2013 order, the trial court found that Mother credible in two relevant 

respects. Specifically, the court found that Mother “testified credibly that 

both parents perform parental duties adequately,” and that Mother “testified 

credibly that they both encourage telephone contact between the absent 

parent and the child.” Trial Court Opinion, 10/29/2013, at 4. The court 

reiterated both of these findings in its July 7, 2014 opinion and order. See

Trial Court Opinion, 7/7/2014, at 11 (“The parties agree, and Mother 

testified, that each [parent] is willing to encourage and permit frequent and 

continuing contact between the [C]hild and the other party. (Factor 1). 

They agree, and Mother testified, that they can both perform parental 

duties. (Factor 3).”). In contrast, the trial court stated that Mother had 

testified incredibly with respect to several issues that were not addressed 

explicitly in the opinion in support of the April 29, 2013 order. That is, the 

trial court found as incredible Mother’s claims that she did not know about 

Father’s difficulty obtaining Child’s school records from Louisiana, that Father 

kept Child from seeing her relatives, that she had suffered abuse by Father, 

and that Child enjoyed an idyllic life in Louisiana. Id. at 3, 4, 11 n.4, 13. 

 

3

In her brief, Mother argues that the July 7, 2014 opinion and order also 

contradicted the court’s October 7, 2011 opinion, issued after the September 

15, 2011 hearing, as well as a 2009 order issued by a different judge. 

Mother’s Brief at 11-12, 17, 19. We note that simply because the court 

found Mother credible during a past hearing does not mean that the court 

was required to find Mother credible at all subsequent hearings, and this 

does not suggest that the court abused its discretion.
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The court also reiterated its prior finding that “[t]he major problem in this 

case is ... the [lack of] proximity of the residences of the parties.” Id. at 

12.4 Even if the court’s opinions were inconsistent, Mother cites no authority 

for the proposition that the court was not permitted to reach inconsistent 

findings after having been ordered by this Court to “reconsider the 

testimony” in light of a different set of statutory factors. We discern no 

basis on which to conclude that the trial court abused its discretion. 

Mother next claims that “the trial court erred and/or abused its 

discretion, under the law and the facts and circumstances of this case, by 

entering a custody order which separated siblings for virtually the entire 

year.” Mother’s Brief at 13 (capitalization omitted). Mother explains that, 

under the trial court’s current custody scheme, Child will only be able to see 

Half-Brother “for a few weeks in August each year and perhaps a short time 

at Christmas,” as Half-Brother is in the custody of his father during summer 

vacation. Id. She argues that separating them in this way was “an error of 

law and manifestly unreasonable.” Id. at 13-14. Mother directs our 

attention to Johns v. Cioci, 865 A.2d 931, 942 (Pa. Super. 2004) (citation 

and quotation marks omitted), in which a panel of this Court reiterated that 

“the policy in Pennsylvania is to permit siblings to be raised together, 

whenever possible,” including half-siblings, and that, “[a]bsent compelling 

reasons to separate siblings, they should be reared in the same household to 

 

4 The trial court echoed these sentiments in a third opinion, dated August 

12, 2014. Trial Court Opinion, 8/12/2014, at 4-5, 10 n.4, 11-13.
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permit the continuity and stability necessary for a young child's 

development.” Id. at 14. Mother emphasizes the statement of this Court in 

its prior memorandum opinion, in which the panel questioned “‘how sharing 

one month together during the summer is sufficient for the half-brothers to 

maintain the close relationship they already share.’” Id. (quoting C.E.S.,

unpublished memorandum at 7). Mother contends that the trial court erred 

in concluding that Child’s relationship with Half-Brother and his relationship 

with his extended family were of equal importance, and that “there is no 

legal authority supporting the conclusion that close relationships with 

extended family ‘cancel out’ a close relationship with a sibling, and the court 

below cited none.” Id. at 15. Mother suggests that Child could maintain a 

relationship with his extended family if Father were given custody of Child 

during the summer. Id.

We again discern no abuse of discretion. While this Court has 

emphasized the policy that siblings should be raised together, this 

consideration alone is not determinative of which party should be granted 

primary physical custody of a child. See Johns, 865 A.2d at 942 (“[T]his 

Court has made clear that the policy against separation of siblings is only 

one factor-and not a controlling factor-in the ultimate custody decision.”) 

(citations omitted); see also M.J.M. v. M.L.G., 63 A.3d 331, 339 (Pa. 

Super. 2013), appeal denied, 68 A.3d 909 (Pa. 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.”) (citation omitted). Here, Father 
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testified that Child is very close with Father’s extended family in 

Pennsylvania. N.T., 8/29/2013, at 5 (“He’s very close with my mom that he 

calls nana and my sister and he has his cousins, [D.] and [A.] ....”). The trial 

court was free to conclude that Child’s relationship with Half-Brother was no 

more important than his relationship with his extended family under the 

facts of the instant case, and that this factor was outweighed by the court’s 

finding that Father is more concerned than Mother with regard to Child’s 

best interests. No relief is due.

Mother’s third claim is that “the trial court erred and/or abused its 

discretion in granting primary physical custody of the Child to Father under 

the law and the facts of this case.” Mother’s Brief at 16 (capitalization 

omitted). Mother observes that the trial court has “stressed how 

comparable the parties’ respective parenting abilities are, how the parties 

have been successful in preserving the relationship between the [C]hild and 

the other parent, and how the [C]hild is resilient and has thrived when in the 

custody of either parent.” Id. at 17. However, Mother contends that the 

“several factors in this case which clearly support the conclusion that the 

trial court should have granted primary physical custody to Mother.” Id. 

Mother states that she has “clearly improved the circumstances for herself 

and the [C]hild in moving to Louisiana,” and emphasizes, inter alia, that she 

is married, has a good job, is involved with Child’s education, involves Child 

in a church, and can provide Child with stability while maintaining a 

relationship with her extended family in Pennsylvania. Id. at 18. Mother 
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argues that granting her custody during the school year and granting Father 

custody during the summer months and during school vacations would be 

the “most reasonable and least disruptive modification of the prior custody 

schedule.” Id.

Mother also repeats her claim that the trial court’s opinions are 

inconsistent with one another, and complains that “the court below for the 

first time made findings regarding isolated incidents allegedly occurring at 

Mother’s house and appeared to give them exaggerated significance,” 

without explaining what these incidents were or arguing how their 

significance was exaggerated. Id. at 19. Mother claims that the trial court 

“also for the first time, and clearly contradictory to its prior findings, 

questioned Mother’s parenting abilities and priorities, and even characterized 

Mother as ‘self-centered’ and showing ‘a concern for her own interests, and 

not her child’s.’” Id. Finally, Mother suggests that “an underlying theme in 

this case has been the lower court’s criticism of Mother’s decision to relocate 

to Louisiana,” and that “Mother’s decision in 2011 to relocate to Louisiana 

should have no impact whatsoever on the present issue of primary physical 

custody[.]” Id. at 19-20. 

Mother has failed to establish that she is entitled to relief. While 

Mother contends that she has a good job in Louisiana, and can provide for 

Child, Mother makes no effort to explain how Father is any less able to raise 

Child than she is. The trial court found that both parents were capable of 

raising Child, but concluded that Father should have custody of Child during 
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the school year because Father’s “home is [Child’s] known physical 

environment since birth.” Trial Court Opinion, 8/12/2014, at 13. This finding 

was within the court’s discretion. The reality is that in this case, as the trial 

court pointed out, “this case is made difficult because of the great distance 

between the parties.” Id. at 17. Both parents knew from early on that 

Child’s primary residence during the school year would be determined as he 

approached first grade. 

Further, as discussed supra, the court’s July 7, 2014 opinion and order 

do not contradict the court’s previous opinion. Even if it did, Mother does 

not direct us to any authority stating that the court could not reach a 

contradictory credibility finding after being ordered by this Court to 

“reconsider the testimony” in light of a different set of statutory factors. 

We also reject Mother’s contention that her relocation to Louisiana 

should have no impact on the court’s decision to award custody. Again, 

Mother cites no authority for the proposition that Mother’s decision to 

relocate could not be considered by the trial court. 

Accordingly, because we conclude that none of Mother’s claims entitles 

her to relief, we affirm the order of the trial court.

Order affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/2/2015