J-S75002-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

M.P.B. IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

K.J.

No. 1764 EDA 2016

Appeal from the Order Entered May 10, 2016

In the Court of Common Pleas of Montgomery County

Civil Division at No(s): 2009-02505

BEFORE: BOWES, MOULTON AND MUSMANNO JJ.

MEMORANDUM BY BOWES, J.: FILED NOVEMBER 28, 2016

M.P.B. (“Father”) appeals from the custody order awarding K.J. 

(“Mother”) primary physical custody of their minor son, D.B., and granting 

him periods of partial physical custody. We affirm.

Mother and Father never married. D.B. was born during May 2007 as 

a consequence of the parties’ brief dalliance. Five months into the 

pregnancy, Mother informed Father that she was pregnant. Father attended 

D.B.’s birth, but he did not maintain contact with his infant son. 

During 2008, Mother surreptitiously moved with D.B. to New 

Hampshire in order to marry R.J. (“Stepfather”). After Father discovered 

Mother’s location, he filed a custody complaint in Pennsylvania. On April 15, 

2009, the parties fashioned a custody arrangement in which they shared 
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legal custody, Mother maintained primary physical custody in New 

Hampshire, and Father exercised monthly periods of partial physical custody. 

While living in New Hampshire, Mother became concerned that 

Stepfather might be abusing D.B. sexually because the child started 

speaking and behaving inappropriately. Mother reported her fears to child 

protective services, left Stepfather, and returned with D.B. to Pennsylvania. 

She reunited with Stepfather in New Hampshire after an investigation 

deemed the report unfounded. During June 2012, Stepfather pled guilty in 

New Hampshire to child pornography charges that did not involve D.B. 

Mother initiated that investigation after alerting authorities that she had 

discovered suspected child pornography on her husband’s computer. 

Thereafter, Mother initiated divorce proceedings against Stepfather and 

relocated with her son to Pennsylvania permanently. She and D.B. began to 

reside in an apartment that Father secured for them.1 During this period, 

Father exercised weekly periods of physical custody and enjoyed liberal 

visitation. 

Allegations of abuse were not limited to Stepfather. In total, five 

allegations of physical abuse were leveled against Father by either Mother or 

____________________________________________

1 As a first grader, D.B. was diagnosed with Attention Deficit/Hyperactivity 

Disorder (“ADHD”) and was prescribed between 5 mg and 10 mg of Ritalin 

per day. He also has diagnoses of Autism Spectrum Disorder, and 

unspecified Disruptive Impulse-control and Conduct Disorder.
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D.B.’s pediatrician based upon unexplained injuries and bruises that 

occurred while in Father’s care. All of those allegations were deemed 

unfounded. 

In March 2015, Mother was committed to a mental health facility for 

two weeks following the sudden death of her younger brother. Mother, who 

was victimized repeatedly as a child, has an extensive history of mental 

illness with multiple hospitalizations dating back to 1988. She has been on 

total psychiatric disability since 1993 and she has residual cognitive defects 

from a traumatic brain injury that she sustained in 1999. Prior to the 2015 

hospitalization, Mother’s most recent inpatient treatment occurred in 2006. 

Based upon the latest hospitalization, Father filed a petition for emergency 

custody, which the court granted, awarding him sole legal custody and 

primary physical custody of D.B. The order did not carve any specific 

periods of partial custody for Mother, but it permitted her to visit D.B. upon 

her release from the facility, so long as Father agreed. 

At the conclusion of Mother’s two-week hospitalization, Father limited 

Mother’s access to D.B. As a result, she petitioned the trial court for 

modification of the emergency custody order. The trial court ordered Mother 

to undergo a mental health evaluation, and upon review of the evaluator’s 

findings, it reinstated the April 2009 custody arrangement with a 

modification that enlarged Father’s periods of alternating weekend custody. 

Father sought reconsideration, which led to a series of countervailing 
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petitions that ultimately culminated in the two-day custody trial that is the 

genesis of this appeal. 

During the trial, Mother testified and presented her long-term 

psychotherapist, Melisa Hubsher, Psy.D., to introduce evidence regarding her 

mental health. Father testified on his own behalf, and the court-ordered 

custody evaluator, Gerald F. Bellettirie, Ph.D., discussed his thorough, 

seventy-page custody evaluation and recommendation. Dr. Bellettirie first 

provided an extensive historical review and summarized his evaluations of 

D.B. individually and with each parent in his and her respective homes. 

Next, he outlined the best-interest factors set forth in 23 Pa.C.S. § 5328(a), 

and recommended that Mother and Father share equal physical custody of 

D.B., provided that the trial court ensure that Mother continue mental health 

treatment. Referencing the child’s aversion to change, Dr. Bellettirie 

stressed the importance that D.B. remain in his current school in the district 

where Mother resides. See Custody Evaluation, 11/22/15, at 70 (“Change is 

a very difficult adjustment for a child with [D.B.]’s developmental 

disorders.”). He added that “[D.B.] should not be separated from his 

mother for any unnecessary extended period of time. [He] has already been 

traumatized from being separated from mother for an extended period of 

time in the past.” Id. at 68-69. 

At the close of the trial, the trial court presented its on-the-record 

analysis of the best-interest factors and outlined the terms of the ensuing 
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custody award. Five days later, on May 10, 2016, the trial court entered a 

final custody order awarding Mother primary physical custody of D.B. and 

granting Father partial physical custody Wednesday overnight and 

alternating weekends. The custody order incorporated Dr. Bellettirie’s 

recommended safeguards relating to the trial court’s monitoring of Mother's 

continued mental health treatments. This timely appeal followed.

Father complied with Pa.R.A.P. 1925(a)(2)(i) by filing a concise 

statement of errors complained of on appeal concurrent with his notice of 

appeal. The trial court entered a Rule 1925(a) opinion addressing the merits 

of Father’s claims. The matter is ready for our review. 

Father frames his assertions in four prolix questions, which we 

condense into two succinct issues: (1) whether the trial court’s best-interest 

analysis is contrary to the statutory directive to give weighted consideration 

to factors that affect the safety of the child; and (2) whether the trial court 

erred in weighing the second, seventh, fifteenth, and sixteenth custody 

factors pursuant to 23 Pa.C.S. § 5328(a). Father’s brief at 7-8. 2

In M.J.M. v. M.L.G., 63 A.3d 331 (Pa.Super. 2013), we reiterated the 

applicable scope and standard of review as follows:

In reviewing a custody order, our scope is of the 

broadest type and our standard is abuse of discretion. We 

____________________________________________

2 The first issue implicates the question Father listed as IV in his brief. The 

second issue combines the questions Father presented in I-III. 
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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.

J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa.Super. 2011) (citation 

omitted). 

M.J.M., supra at 334. 

Pursuant to 23 Pa.C.S. § 5328(a), the determination of a child’s best 

interest requires the examination of the following factors:

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

child. 

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

family life and community life. 

(5) The availability of extended family. 

(6) The child's sibling relationships. 

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

child's maturity and judgment. 

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

parent, except in cases of domestic violence where reasonable 

safety measures are necessary to protect the child from harm. 

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

consistent and nurturing relationship with the child adequate for 

the child's emotional needs. 

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

emotional, developmental, educational and special needs of the 

child. 

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

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

make appropriate child-care arrangements. 

(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. 
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23 Pa.C.S. § 5328. 

Herein, the trial court weighed the applicable factors in awarding 

Mother primary physical custody of D.B. and granting Father periods of 

partial physical custody. The trial court found that factors one, three, four, 

nine, ten and sixteen militated to varying degrees in favor of Mother. 

Factors two, five, six, seven, eight, eleven, twelve, thirteen, fourteen, and 

fifteen were either inapplicable or did not inure to either parent’s advantage. 

None of the factors entirely favored Father.

The first issue challenges the weight of the evidence adduced at trial. 

Essentially, Father maintains that the trial court either ignored certain 

evidence or failed to view the evidence through the prism of the “weighted 

consideration” of his son’s safety. Father’s brief at 19, 34-36. He asserts, 

“At the very least, proper consideration of the [f]actors weighs in favor of an 

award to Father of substantially more custody time than the Order . . . 

awarded him.” Id. at 34. Thereafter, he concludes, “Had the court given 

the appropriate weighted consideration to Factors 2 and 15 . . . it would 

have properly concluded that an award of primary custody of [D.B.] to 

Father was warranted.” Id. at 36. These positions fail for at least two 

reasons. First, Father misinterprets our standard of review and ignores our 

deference for the trial court’s role as fact finder. Father cannot dictate the 

weight the trial court attributes to any single factor. Indeed, as we 
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highlighted in M.J.M., supra at 339, “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.” 

Furthermore, the trial court did, in fact, engage in the appropriate 

review. Stated plainly, the trial court examined factors two and fifteen 

through the prism of D.B.’s safety and, as the ultimate arbiter of fact, it 

concluded that both factors were neutral. Father’s present contention 

effectively demands that we re-examine the evidence presented during the 

two-day hearing in a more favorable light to him in order to attain a different 

conclusion. We decline to revisit the trial court’s factual findings which are 

supported by the certified record in order to reassess the weight of the 

evidence. J.R.M., supra at 650 (“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”). Thus, this claim fails. 

In his remaining assertions, Father argues that the trial court’s 

rationale was tantamount to an abuse of discretion or unreasonable as 

shown by the evidence of record. Father’s arguments contest the trial 

court’s deliberation as to four of the best-interest considerations: two, 

seven, fifteen and sixteen. Of those factors, sixteen is the only one that the 

court found to lean in Mother’s favor. The trial court deemed the second, 

seventh, and fifteenth factors to be neutral. 
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Concerning factor two, consideration of present and past abuses, 

Father asserts that the trial court disregarded Mother’s inappropriate 

responses to the allegation that Stepfather abused D.B and Stepfather’s 

child pornography convictions. Specifically, he assails Mother’s judgment in 

returning to New Hampshire to reunite with Stepfather after the 

investigation deemed the abuse allegations unfounded. Father contends 

that, in light of the statutory requirement that the trial court give weighted 

considerations of the factors that affect the child’s safety, the court erred in 

discounting Mother’s poor judgment as it relates to whether she can provide 

adequate safeguards and supervision of her son. Father’s brief at 22-26. 

He asserts that the second factor should have weighed heavily in his favor. 

In rejecting Father’s claim regarding Mother’s momentary 

reconciliation with Stepfather prior to her 2012 discovery of child 

pornography on his computer, the trial court observed that Mother returned 

to New Hampshire after the allegations regarding D.B. had been deemed 

unfounded and left again when she discovered Stepfather’s predilection for 

child pornography. Moreover, as the trial court pointed out, Mother 

terminated contact with Stepfather and has not interacted with him for more 

than three years. In sum, the court concluded that Stepfather does not 

present a risk of harm to D.B. and Father’s concerns regarding those 

allegations do not implicate any current members of Mother’s household. 
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Father also challenges the trial court’s consideration of the unfounded 

allegations of abuse that were leveled against him in addressing this issue. 

He argues that the court inappropriately equated those unfounded 

allegations with Stepfather’s confirmed behavior. He is mistaken. While the 

trial court referenced the allegations of physical abuse against Father and 

noted the difficulty in proving how the injuries were sustained, it did not find 

that Father was the perpetrator of abuse, deem Father unsafe, or assess the 

factor against him due to the unfounded allegations. Moreover, the trial 

court did not equate the unproven allegations of physical abuse with 

Stepfather’s perversions. In reality, in reference to Mother’s brief return to 

New Hampshire, it noted that, like the unfounded accusations against 

Father, the allegation that Stepfather had abused D.B. was equally difficult 

to prove. Thus, to the extent the court compared the allegations of abuse 

leveled in this case, the comparison was limited to the respective unfounded 

accusations against Father and Stepfather. Father’s complaint that the court 

equated Stepfather’s child pornography conviction with the investigation into 

the unexplained bruises on D.B.’s legs distorts the trial court’s analysis. 

Finally, as it relates to Mother’s judgment, we further observe that 

Mother initiated the abuse investigation against Stepfather based upon 

D.B.’s comments and, while she briefly reunited with Stepfather after the 

initial allegations were deemed unfounded, upon discovering the suspected 

child pornography on Stepfather’s computer, she severed the relationship 
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permanently and reported Stepfather to law enforcement authorities. 

Contrary to Father’s contentions, Mother’s decisions under these 

circumstances does not evince poor judgment. Mother removed D.B. from 

danger, returned when the perceived threat was deemed unfounded, and 

ultimately reported her husband to authorities when she discovered that 

unrelated crime. The trial court’s determination that this factor did not 

weigh in favor of either parent is reasonable as shown by the forgoing 

evidence of record. Hence, we discern no abuse of discretion. 

While Father frames his next issue as a challenge to factor seven, the 

well-reasoned preferences of the child, in reality he contests the trial court’s 

catchall consideration under sixteen. The crux of this complaint is that, 

having determined under factor seven that D.B.’s preference to live with 

Mother was not well reasoned in light of the child’s maturity, the trial court 

erred in relying upon the child’s preference in considering factor sixteen. 

Significantly, in addressing factor sixteen, the trial court noted D.B.’s 

preference of Mother over Father and observed that the child will have 

difficulty managing drastic changes to his surroundings. The portion of Dr. 

Bellettirie’s report that referenced the seventh custody factor, i.e., the child’s 

preference, influenced these findings. Succinctly, the report identified D.B.’s 

strong preference for Mother but indicated that the preference was mitigated 

by the child’s age. Father submits that if the preference was inadequate 

under factor seven, it was improper to consider it in addressing factor 
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sixteen. Reduced to its core, Father’s argument is that if the child’s 

preference for Mother over Father is not well reasoned, it is innately 

unreliable. Again, no relief is due. 

In addressing this issue, the trial court explained that, while it declined 

to give weight to D.B.’s preference under factor seven, the child’s 

commitment to Mother was nevertheless relevant to the child’s best interest 

determination generally, and it was specifically germane to assessing D.B.’s 

ability to manage changes to his environment and his reaction to being 

separated from Mother for extended periods. First, it is obvious that both 

the court-appointed expert and the trial court found that D.B.’s preference 

toward Mother was, in fact, grounded in reason, albeit the reasoning of an 

eight-year-old child. During the custody evaluation, D.B. indicated that, for 

two years, he had hated Father. See Custody Evaluation, 11/22/15, at 52. 

D.B. perceived Father as the reason that he was separated from Mother, and 

Dr. Bellettirie reported that D.B. stated that “when he was with [F]ather for 

135 days[,] . . . he missed . . . [M]other and wanted to try to escape.” Id. 

at 70. Indeed, D.B.’ feelings were so fervent that he instructed Dr. 

Bellettirie to inform the trial court about everything that he had said about 

Father during the sessions, and, at the end of the evaluation, D.B. rebuffed 

Father’s interaction and, as relayed by Dr. Bellettirie, “[D.B.] told [F]ather 

that he said a lot of bad things about him [during the evaluation].” Id. 

Thus, contrary to Father’s characterization of the D.B.’s partiality as 
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intrinsically unreliable, Dr. Bellettirie did not merely reject D.B.’s preference 

as unreasoned. Instead, the custody evaluator discounted the child’s 

preference under factor seven because it was formed through the 

perspective of an eight-year-old child as compared to an older child. See

B.C.S. v. J.A.S., 994 A.2d 600, 604 (Pa.Super. 2010) (as children grow 

older, more weight must be given to preference).

Moreover, as the trial court pointed out, Dr. Bellettirie testified that 

change is difficult for D.B. and that, in light of D.B.’s strong attachment to 

Mother, “[Dr. Bellettrie] did not think it would be a good idea for this child to 

be away from his mother for prolonged periods of time[.]” N.T., 5/5/15, at 

34-35. Mindful of D.B.’s statements to Dr. Bellettirie regarding his 

perspective of Father, it was reasonable for the trial court to reference D.B.’s 

overwhelming fondness for Mother in considering what changes the child 

could manage and the potential impact of granting Father primary custody. 

Thus, even though the trial court declined to weigh the child’s preference 

independently under factor seven, to the extent that the trial court 

referenced D.B.’s preference in weighing the child’s rigidity and aversion to 

change under factor sixteen, the trial court did not abuse its discretion. 

Finally, concerning factor fifteen, a parent’s physical and mental 

condition, Father contends that the trial court disregarded the significance of 

Mother’s chronic mental illness in concluding that this factor does not 

militate in his favor. The crux of Father’s assertion is that “the issues that 
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Mother continues to experience are serious and continue to manifest 

themselves in her life.” Father’s brief at 32. The record belies Father’s 

contention.

In rejecting this claim in its Rule 1925(a) opinion, the trial court first 

noted Mother’s extensive struggles with mental illnesses in the form of bipolar disorder, eating disorder, major depressive disorder, post-traumatic 

stress disorder, and borderline personality disorder. The court also recalled 

that Mother has had various commitments and suicide attempts and has 

used psychotropic medication and electroconvulsive therapy, formerly known 

as electroshock therapy. In addition, Mother has engaged in therapy with a 

psychologist for the last fifteen years. However, unlike Father, who argues 

that Mother’s mental health problems present a current risk of harm to D.B., 

the trial court highlighted that Mother is addressing her illnesses 

appropriately. She was committed only once since D.B.’s birth, the 2015 

hospitalization that led to Father receiving emergency custody, and she is 

diligently monitoring her mental health and managing her disorders. The 

court continued that, despite the brief setback associated with the tragic 

death of her younger sibling, Mother maintained primary custody of D.B. for 

the majority of his life without incident. In addition, she has avoided any 

other obstacles to her mental health, and she regularly attends her 

appointments with her mental health professionals. 
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The certified record supports the trial court’s conclusion that Mother’s 

history of chronic mental health problems does not preclude her from 

maintaining primary physical custody of D.B. In addition to the foregoing 

evidence supporting the trial court’s position that Mother has been 

consistent with treatment, we observe that Dr. Bellettirie concluded that 

Mother’s mental health was not fatal to her ability to parent. He testified, 

“certainly just the presence of a mental health diagnosis does not mean you 

can't function to take care of your child.” N.T., 5/5/16, at 41. Indeed, as 

we noted, supra, Dr. Bellettirie recommended that Mother and Father share 

physical custody of D.B. equally, and he recommended specific safeguards to 

ensure that the trial court monitor Mother’s mental health. The trial court 

adopted Dr. Bellettirie’s positon that Mother’s various diagnoses were not 

impediments to caring for D.B., and it implemented the safeguards in 

fashioning the custody order granting Mother primary physical custody of 

her son. N.T. Excerpted Findings of Fact, 5/5/16, at 17-18. The increase 

from shared custody to primary custody, which the court attributed to 

Mother’s demonstrated progress during the six months since Dr. Bellettirie 

issued his recommendations and D.B.’s aversion to change, does not negate 

the custody evaluator’s endorsement of her parenting ability. Since the 

certified record belies Father’s assertion that Mother’s mental illness poses a 

risk to D.B. when he is in her primary physical custody, no relief is due. 
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As the trial court’s custody determination is reasonable in light of the 

evidence of record, we will not disturb it. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/28/2016