J-A08030-18

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.F.D. 

Appellant

v.

M.A.D.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3200 EDA 2017

Appeal from the Order August 31, 2017

In the Court of Common Pleas of Montgomery County Civil Division at 

No(s): 2007-26322

BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.: FILED JUNE 13, 2018

J.F.D. (Father) appeals, pro se, from the order, entered in the Court of 

Common Pleas of Montgomery County, granting M.A.D. (Mother) primary 

physical custody and sole legal custody of the parties’ two minor daughters, 

ages ten and twelve.

1

 We affirm. 

The parties were married in 2005; they separated shortly after and 

Father filed a custody complaint before the birth of their younger child. As 

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1 The order, dated August 31, 2017, provided that: Mother shall have sole 

legal custody of the children; the parties shall not attend any medical 

appointment at the same time; the parties shall not attend any school 

functions at the same time under any circumstance; the parties shall not 

attend extra-curricular activities (i.e. cheerleading, gymnastics, swimming, 

theater, soccer, etc.) at the same time under any circumstance; Mother shall 

have primary physical custody of the two minor children; Father shall enroll 

in an anger management course; and, all prior custody orders entered 

between the parties are vacated. Order, 8/31/17. We note Mother has not 

filed an appellee’s brief. 
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the trial court states, the parties have been extremely litigious over the past 

ten years, the court noting that there have been “no less than ten Protection 

From Abuse [PFA] proceedings involving the parties during the past ten years 

(with Father being the filing party in four of the five most recent ones).” Trial 

Court Opinion, 12/8/17, at 2. 

In August 2011, following custody conciliation, the parties agreed to a 

shared custody schedule with primary custody in Mother, and a limited 

custody schedule for Father. The court entered the parties’ stipulation. 

Father’s custody was eventually expanded to a 50/50 schedule. In April 2012, 

Mother filed a motion to modify custody, seeking to reduce Father’s custody 

time or, alternatively, restructure the schedule so the children would not be 

away from one parent for almost an entire week. Thereafter, in July 2012, 

the parties were ordered to participate in a custody evaluation, and the court 

held a three-day protracted hearing. On November 12, 2013, the final day of 

the hearing, the court entered an order, on the record, affirming the 50/50 

schedule. Thereafter, on December 26, 2013, the court entered an additional 

order, this one pertaining to holiday and vacation custody; the order was 

incorporated into the November 12, 2013 order.

On April 15, 2015, Father filed a contempt petition. The court, following 

a telephone conference, directed the parties to attend co-parenting 

counseling. A hearing was held in May 2016 on Father’s contempt petition. 

During that hearing, the parties entered into an agreed order. Thereafter, the 

parties filed cross-motions for modification, and on January 9, 2017, the court 
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entered an interim order directing the parties to enroll the children in therapy. 

Following several more petitions for contempt and a protracted hearing, which 

included over 20 hours of testimony and in camera interviews of both children, 

the court stated it would keep the record open until it received the children’s 

therapist’s report. 

On August 31, 2017, the court entered a fifteen-page custody order, as 

well as findings of fact and an analysis of the statutory factors pursuant to 23 

Pa.C.S.A. § 5328. Father appealed, and the court ordered him to file a 

Pa.R.A.P. 1925(b) statement of errors complained of on appeal. Father 

complied with the court’s order on October 23, 2017. 

Father raises twelve issues on appeal:

1. Did the trial court abuse its discretion by entering an order 

that failed to consider the reasonable concerns and requests 

of the children?

2. Did the trial court abuse its discretion by entering an order

that failed to consider the hundreds of documented custody 

order violations committed by Mother, for which the court 

established a May 31, 2016 agreement petition for contempt 

against Mother?

3. Did the trial court abuse its discretion by entering an order 

that failed to consider the dozens of documented custody 

order violations by Mother after the May 31, 2016 agreement 

petition for contempt?

4. Did the Trial Court abuse its discretion by entering an order 

which failed to honor and uphold the May 31, 2016 Agreement 

Petition for Contempt? 

5. Did the trial court abuse its discretion by entering an order 

based in part on communications from third-party 

professionals notwithstanding evidence that runs contrary to 

those communications?
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6. Did the trial court abuse its discretion by entering an order 

that failed to allow Father to complete his testimony, crossexamination [and] rebuttal? 

7. Did the trial court abuse its discretion by entering an order 

that failed to conclude that Mother’s continued substance 

abuse issues raised by the children, as well as by the police 

and other third parties, presents a genuine risk to the 

children’s safety?

8. Did the trial court abuse its discretion by entering an order 

that failed to conclude that the evidence presented 

demonstrates Father’s consistent willingness to follow, and 

adherence of, the custody order, including the “CustodyGeneral Rules of Conduct” and “Joint Legal Custody?” 

9. Did the trial court abuse its discretion by entering an order 

that failed to conclude that the evidence presented shows the 

Mother’s consistent refusal to follow the Custody Order, 

including the 'Custody – General Rules of Conduct' and 'Joint 

Legal Custody'?

10. Did the Trial Court abuse its discretion by entering an Order 

which failed to conclude that the evidence presented 

demonstrates Father's ongoing attempts to co-parent and 

Mother's ongoing refusal to co -parent?

11. Did the Trial Court abuse its discretion by entering an Order 

which failed to conclude that the evidence presented shows 

the Mother's actions, not the Father's, amount to systematic 

parent alienation?

12. Did the trial court abuse its discretion by entering an order 

based in part on ex parte communications from and on behalf 

of Mother? 

Appellant’s Brief, at 9-13.

In any custody case decided under the Custody Act, 23 Pa.C.S.A. §§

5321 et seq., the paramount concern is the best interests of the child. See

23 Pa. C.S.A. §§ 5328, 5338. Section 5338 of the Act provides that, upon 

petition, a trial court may modify a custody order if it serves the best interests 
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of the child. 23 Pa.C.S.A. § 5338; see also E.D. v. M.P., 33 A.3d 73, 80–81 

n.2 (Pa. Super. 2011). Section 5328(a) sets forth a list of statutory factors2

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2 § 5328. Factors to consider when awarding custody

(a) Factors.—In ordering any form of custody, the court shall 

determine the best interest of the child by considering all 

relevant factors, giving weighted consideration to those 

factors which affect the safety of the child, including the 

following:

(1) Which party is more likely to encourage and permit 

frequent and continuing contact between the child and 

another party.

(2) The present and past abuse committed by a party or 

member of the party's household, whether there is a 

continued risk of harm to the child or an abused party 

and which party can better provide adequate physical 

safeguards and supervision of the child.

(2.1) The information set forth in section 5329.1(a)(1) 

and (2) (relating to consideration of child abuse and 

involvement with protective services).

(3) The parental duties performed by each party on 

behalf of the child.

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

education, family life and community life.

(5) The availability of extended family.

(6) The child’s sibling relationships. 

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

the child’s maturity and judgment.

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

the other parent, except in cases of domestic violence 

where reasonable safety measures are necessary to 

protect the child from harm.
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that the trial court must consider when making a “best interest of the child” 

analysis under the statute. 

Our scope and 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 

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(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). 
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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.

C.R.F., III v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted). 

See also E.R. v. J.N.B., 129 A.3d 521, 527 (Pa. Super. 2015). This Court 

has held that

the discretion that a trial court employs in custody matters should 

be accorded the utmost respect, given the special nature of the 

proceeding and the lasting impact the result will have on the lives 

of the parties concerned. Indeed, the knowledge gained by a trial 

court in observing witnesses in a custody proceeding cannot 

adequately be imparted to an appellate court by a printed record.

Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (quoting Jackson 

v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)). Further, on issues of 

credibility and weight, we defer to the trial court, which has had the 

opportunity to observe the proceedings and demeanor of the witnesses. 

R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa. Super. 2009). 

The parties cannot dictate the amount of weight the trial court

places on evidence. Rather, the paramount concern of the trial

court is the best interest of the child. Appellate interference is

unwarranted if the trial court’s consideration of the best interest

of the child was careful and thorough, and we are unable to find

any abuse of discretion.

Id. (internal citations omitted). 

At the core of this custody case is the palpable acrimony between the 

parties, the trial court’s serious concerns that Father is attempting to alienate 
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the minor children from Mother and the resulting emotional harm to the 

children. It is clear both parents love their children and provide well for them; 

however, failure to consider how “high conflict” and the inability to co-parent

impacts the children is not only short-sighted, but incomprehensible to this 

Court. As the trial court notes, the fact that the parties cannot maintain a 

minimum level of cooperation weighs against a shared custody arrangement. 

See Findings of Fact, supra at 7 n.5, citing Yates v. Yates, 963 A.2d 535, 

542 (Pa. Super. 2008). The court noted that Paul Bukovec, Director and 

Clinical Supervisor of Menergy, reported that Father had acknowledged being 

“domineering, entitled, argumentative, contemptuous, loud, critical, 

ridiculing, and belittling,” and, the court noted, after 19 co-parenting sessions, 

“[l]ittle has changed[.]” Findings of Fact, supra at 12. Father has been 

described by Dr. Gerald Bellettirie, a psychologist of 36 years who was 

assigned as the co-parenting specialist, as “extremely controlling and 

arrogant,” id. at 16, 19, and exhibiting a serious lack of empathy. Id. at 16. 

Dr. Gerald Cooke, Ph.D., who performed the parties’ custody evaluation, 

provided a detailed clinical observation of “narcissistic behavior and a sense 

of entitlement on the part of Father.” Id. at 20.3 Father belittles Mother, 

attempts to “program” the children’s therapy sessions, and believes he knows 

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3

In his report, Dr. Bellettirie stated that illustrative of Father’s attitude is his 

statement that “Judge Tolliver is an idiot, Dr. Cooke is incompetent, Laurent 

Potts is incompetent and Judge Clifford makes knee-jerk reactions.” Report 

of Dr. Bellettirie, 10/10/16, at 5. Notably, Dr. Bellettirie asked to be relieved 

of this assignment. 
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better than the professionals and judicial officials. With this backdrop, the 

court’s concerns that Father’s pattern of conduct is symptomatic of parental 

alienation is not without basis. 

After our review of Father’s brief on appeal, the record and the relevant 

law, we conclude that Father’s claims are meritless. The Honorable Daniel J. 

Clifford’s opinion and findings of fact provide a careful and detailed 

examination of the evidence and a comprehensive analysis of each of the 

section 5328(a) custody factors and each of Father’s claims on appeal. See

Findings of Fact, 8/31/17, at 1-22, and Trial Court Opinion, 12/8/17, at 8-30. 

We find no abuse of discretion or error in the trial court’s findings of fact and 

custody analysis, and, therefore, we affirm the court’s order based on Judge 

Clifford’s opinion. Ketterer, supra. We direct the parties to attach a copy of 

Judge Clifford’s opinion in the event of further proceedings.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/13/18