NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
ALAINA MARIE ESTERLY : IN THE SUPERIOR COURT OF : PENNSYLVANIA
:
v. :
:
:
BRIAN PATRICK SANDS :
:
Appellant : No. 89 MDA 2026
Appeal from the Order Entered December 12, 2025 In the Court of Common Pleas of Berks County Civil Division at No(s):
10-5509
BEFORE: KUNSELMAN, J., LANE, J., and FORD ELLIOTT, P.J.E.* MEMORANDUM BY LANE, J.: FILED: SEPTEMBER 9, 2026 Brian Patrick Sands (“Father”) appeals from the custody order which granted shared legal custody to Father and Alaina Marie Esterly (“Mother”) over their minor son, O.Q.S. (“Child”), born in 2009, and sole physical custody of Child to Mother. After careful review, we affirm.
By way of background, we note that Mother and Father, who were never married, had a relationship marked by Father’s violence and abuse. As the trial court explained:
Early in [their] relationship, while they were at a bar[,]
Father announced that it was time to leave. Being under the influence, of alcohol, Father became very angry and began calling Mother names such as “slut” and “whore.” Upon returning to Father’s residence after leaving the bar, Father threw Mother down on a bed and began choking her to the point that she almost passed out. After Mother escaped Father’s residence and began
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* Retired Senior Judge assigned to the Superior Court.
running away, Father caught up to her and forced her back into his residence. During the return, Father told Mother that he knew people and could have her killed. He further said that nobody would find her body.
Several weeks after the incident at the bar and then at Father’s home, Mother and Father were in a car when Father got angry at Mother again. During this incident, Father was yelling at Mother and called her a “bitch” and a “hooker.” Out of fear of Father, Mother climbed over the seat and tried to get out of the back of the car. Father grabbed Mother by the leg and pulled her back into the car.
Another instance of violence occurred in March 2010, when [Child] was approximately three . . . months old[.] Father pushed Mother down a set of stairs while she was holding [Child] in her arms. After Mother fell several steps, she was able to regain her balance and began proceedings back up the stairs. Upon reaching the top of the stairs, Father grabbed [Child] out of Mother’s arms and pushed Mother out of the door to the exterior of the residence.
At the time, it was cold out and snowing and Mother was only wearing shorts and a top. Despite her banging on the door to be allowed back into the residence, Father would not let her back in to the residence. Mother ended up running to the West Reading Police Department, with the police escorting her back to the residence in order to get her belongings.
In October of 2010, a protection from abuse [(“PFA”)] order was petitioned for and ultimately granted in the favor of Erin Hanna [(“Hanna”)] against Father[.] . . . Hanna was another woman [with whom] Father had maintained a relationship. Father became enraged upon being served with a [PFA] order involving a woman other than Mother. At this time, he threw some things at Mother and nearly hit her.
After Mother and Father terminated their relationship, Father would continue to contact Mother. At one time, Father called Mother on the telephone and called her names, including “slut,” “hooker,” “bitch,” and “liar.” He also accused her of ruining his life and taking his baby from him. During this telephone call, Father threatened Mother by saying that he would see that she was “gang banged,” i.e., forcibly raped by multiple men, chop up her body and hang her entrails in trees for all to see. He also threatened to burn down the house with all the people in it,
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including Mother, her parents, and [Child]. Father was arrested and convicted of terroristic threats . . . as a result of this incident.
In addition to the foregoing incidents between Mother and Father, Father has gotten into physical altercations with his current girlfriend, Katie Yousaitis (“Ms. Yousaitis”). On August 4, 2025, a report was made to Berks County Children and Youth Services regarding domestic violence between Father and Ms.
Yousaitis. The . . . Child credibly testified to having seen Father get into physical altercations [with] Ms. Yousaitis. [Child] also credibly testified that on at least two . . . occasions since 2023, Father has gotten angry at [Child] and pushed him.
Trial Court Opinion, 1/27/26, at 6-9 (unnecessary capitalization omitted).
Mother filed a complaint for custody when Child was seven months old.
In the intervening years, the parties have been in and out of court repeatedly due to the filing of petitions to modify custody, petitions for special relief, emergency petitions, petitions for contempt of court, requests for sanctions, and a prior appeal to this Court. In December 2019, the parties agreed to a custody order which the trial court approved and entered. The custody agreement provided that Mother would have primary custody of Child during the school year, with Father having partial physical custody of Child every other weekend and on Thursday evenings. The custody agreement further provided that the parties would share custody of Child on a week on/week off basis over the summer break.
In June 2024, Father filed a petition to modify custody. While the petition was pending, Father filed a petition for a psychological/family systems evaluation. With the consent of the partes, the trial court ordered a comprehensive custody evaluation by Heather K. Green, Ph.D. (“Dr. Green”).
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Dr. Green thereafter prepared a comprehensive report, which she completed after interviewing Father, Mother, and their significant others, conducting psychological testing, and reviewing extensive documentation related to the case.1 The matter then proceeded to a custody trial in November 2025, during which Dr. Green’s report was admitted into evidence as a joint submission by Father and Mother.
On December 12, 2025, the trial court entered a custody order pertaining to Child which awarded shared legal custody to the parties, and sole physical custody to Mother. The order further provided that Child, who was then sixteen years old, had the sole and exclusive discretion to determine when and how he wished to communicate with Father, including through electronic means or in person. Father filed a timely notice of appeal and a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). The trial court thereafter authored an opinion pursuant to Rule 1925(a).
Father raises the following issues for our review:
I. Whether the trial court abused its discretion and erred as a matter of law by over‑emphasizing the custody factor addressing present and past abuse under 23 Pa.C.S.[A.] § 5328(a)(2), relying heavily on remote historical allegations, dismissed or unsubstantiated proceedings, and speculative future harm, while failing to give adequate consideration to
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1 Although the trial court’s opinion is silent on the matter, Dr. Green’s report
indicates that Mother sought and obtained a PFA order against Father, and that Father thereafter violated the PFA order.
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the absence of current abuse findings or present safety concerns regarding the sixteen‑year‑old Child.
II. Whether the trial court abused its discretion by making credibility determinations and factual findings that are unsupported by competent record evidence, including findings that Father poses an ongoing safety risk to the Child, and by treating unsubstantiated reports, pending investigations, and evaluator commentary as established facts, thereby misapplying multiple custody factors under 23 Pa.C.S.[A.] § 5328(a) and violating Father’s due process rights.
III. Whether the trial court abused its discretion and erred as a matter of law by failing to give appropriate weight to the Child’s age, stated preferences, academic performance, and overall adjustment, instead allowing perceived past abuse and parental conflict to dominate the best-interest analysis under 23 Pa.C.S.[A.] § 5328(a), and by conflating coparenting difficulties with parental unfitness so as to improperly restrict Father’s custodial rights.
IV. Whether, even if some restrictions were warranted, the trial court abused its discretion by imposing custodial limitations that were not narrowly tailored to its findings and by failing to consider or explain less restrictive alternatives consistent with the child’s best interests, rendering the modified custody order unreasonable as a whole.
Father’s Brief at 5-6 (some capitalization added).
We review Father’s issues on appeal according to the following standard and scope of review:
Our standard of review over a custody order is for a gross abuse of discretion. Such an abuse of discretion will only be found if the trial court, in reaching its conclusion, overrides or misapplies the law, or exercises judgment which is manifestly unreasonable, or reaches a conclusion that is the result of partiality, prejudice, bias, or ill-will as shown by the evidence of record.
In reviewing a custody order, we must accept findings of the trial court that are supported by competent evidence of record, as
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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 trial court 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.
Rogowski v. Kirven, 291 A.3d 50, 60-61 (Pa. Super. 2023) (cleaned up). It is not our function “to determine whether the trial court reached the ‘right’ decision; rather, we must consider whether, based on the evidence presented, given due deference to the trial court’s weight and credibility determinations, the trial court erred or abused its discretion.” King v. King, 889 A.2d 630, 632 (Pa. Super. 2005) (cleaned up).
Child custody actions are governed by the Child Custody Act (“Act”), 23 Pa.C.S.A. §§ 5321-5340. The paramount concern in a child custody case is the best interests of the child based on consideration of all factors that legitimately affect the child’s physical, intellectual, moral, and spiritual wellbeing. See Landis v. Landis, 869 A.2d 1003, 1011 (Pa. Super. 2005). Section 5323(a) delineates the types of custody that a trial court may award: (1) shared physical custody; (2) primary physical custody; (3) partial physical custody; (4) sole physical custody; (5) supervised physical custody; (6) shared legal custody; and (7) sole legal custody. See 23 Pa.C.S.A. § 5323(a).
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When awarding any form of custody, the trial court is required to consider the child’s best interests pursuant to the following factors set forth in 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 substantial weighted consideration to the factors specified under paragraphs (1), (2), (2.1) and (2.2) which affect the safety of the child, including the following:
(1) Which party is more likely to ensure the safety of the child.
(2) The present and past abuse committed by a party or member of the party’s household, which may include past or current protection from abuse or sexual violence protection orders where there has been a finding of abuse.
(2.1) The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement with protective services).
(2.2) Violent or assaultive behavior committed by a party.
(2.3) The level of cooperation and conflict between the parties, including:
(i) which party is more likely to encourage and permit frequent and continuing contact between the child and the other party or parties if contact is consistent with the safety needs of the child; and
(ii) the attempts by a party to turn the child against the other party, except in cases of abuse where reasonable safety measures are necessary to protect the safety of the child. A party’s good faith and reasonable effort to protect the safety of a child or self shall not be considered evidence of unwillingness or inability to cooperate with the other party. A party’s reasonable concerns for the safety of the child and the party’s reasonable efforts to protect the child shall not be considered attempts to turn the child against the other party. A child’s deficient or
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negative relationship with a party shall not be presumed to be caused by the other party.
(3) A willingness and ability of a party to prioritize the needs of the child by providing appropriate care, stability and continuity for the child, considering the parental duties performed by the party on behalf of the child in the past and whether the party is willing and able to perform the duties in the future, and attend to the daily physical, emotional, developmental, educational and special needs of the child.
(4) The need for stability and continuity in the child’s education, family life and community life, except if changes are necessary to protect the safety of the child or a party.
[repealed by amendment]
(6) The child’s sibling and other familial relationships.
(7) The well-reasoned preference of the child, based on the child’s developmental stage, maturity and judgment.
[repealed by amendment]
[repealed by amendment]
[repealed by amendment]
(11) The proximity of the residences of the parties.
(12) Each party’s employment schedule and availability to care for the child or ability to make appropriate child-care arrangements.
[repealed by amendment]
(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.A. § 5328(a).2 The trial court is required to consider all of the factors listed in section 5328(a) when entering a custody order. See J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011). As the finder of fact, the trial court determines which factors are most salient and critical in each particular case. See E.B. v. D.B., 209 A.3d 451, 468 (Pa. Super. 2019). After the trial court has reached a decision regarding custody, the court shall delineate the reasons for its custody decision either on the record in open court, or in a written opinion or order. See 23 Pa.C.S.A. § 5323(d). However, “there is no required amount of detail for the trial court’s explanation; all that is required is that the enumerated factors are considered and that the custody decision is based on those considerations.” M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013).
In his first issue, Father contends that the trial court abused its discretion by placing “extraordinary emphasis on episodes occurring when the parties were young, in an intimate relationship that ended many years ago, and when the [C]hild was an infant or not yet meaningfully aware of events.” Father’s Brief at 17. While Father concedes that his past abusive “behavior is serious and properly considered under [section] 5328(a)(2),” he nonetheless claims that “past abuse [should not be treated] as a perpetual veto over
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2 Our General Assembly amended section 5328(a) on June 30, 2025, with an
effective date of August 29, 2025. As the subject custody proceedings occurred after the effective date of the amendments, they apply here.
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expanded custody regardless of the child’s age, current relationship with the parent, and lack of recent adjudicated abuse.” Id. According to Father, the trial court’s “safety analysis repeatedly returns to events from 2009-2010 and the older PFA-related history, with comparatively little analysis connecting those events to a concrete, ongoing danger to [C]hild.” Id. at 18. While Father acknowledges that there has been “more recent conflict between Father and his current partner and [he acknowledges C]hild’s testimony about seeing arguments and being pushed on two occasions,” Father nevertheless asserts that “those incidents are layered atop the remote history rather than analyzed distinctly and proportionately.” Id. Father additionally argues that the trial court relied upon unsubstantiated reports to child protective services “as if they were proof of ongoing abuse” without identifying which allegations resulted in founded or indicated findings or whether criminal charges relating to those more recent incidents were sustained. In sum, Father asserts that the trial court failed to consider the totality of the present circumstances and instead rendered the section 5328(a) safety factors as determinative.
The trial court considered Father’s first issue and determined that it lacked merit. The trial court explained that it “examined the totality of the circumstances, did not allow a single factor to be outcome determinative, and gave weighted consideration to factors affecting the safety of . . . Child.” Trial Court Opinion, 1/27/26, at 27. The court explained that “the Child Custody Act requires a court to consider the present and past abuse committed by a
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party,” and noted that “the General Assembly did not place a temporal limitation on the facts to be considered.” Id. at 20-21. The trial court found that “Father has an established history of engaging in violent and abusive behavior that may pose a risk of harm to the . . . Child.” Id. at 21; see also id. at 22-23 (wherein the trial court detailed the violence and abuse that Father inflicted upon Mother throughout their relationship). The court further noted that “[i]n 2010, a [PFA] order was granted in favor of . . . Hanna against Father,” although the court did not give significant weight to that order. Id. The trial court also expressed its concern regarding Father’s alcohol abuse, noting that “some of Father’s violent conduct occurred at times when Father was under the influence of alcohol.” Id. at 23. The trial court additionally considered Father’s criminal conviction for terroristic threats, which is an enumerated offense under section 5329 of the Child Custody Act, and further determined that the conviction was aggravated by evidence of other violent behavior. See id. at 4.
The trial court also found that “[t]he matter is further aggravated by the fact that Father fails to accept responsibility for his actions and contends that his conviction [for terroristic threats] is the result of bad advice from his attorney.” Id. The trial court explained that Father “minimizes his violent conduct and his criminal conviction . . . [and] act[s] as if they were not that bad and it was really someone else’s fault.” Id. The trial court credited the report prepared by Dr. Green wherein she observed that, in her interview with
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Father, he denied violating Mother’s PFA against him, denied making threats to Mother, denied being contacted by police, and denied being sentenced to prison. See id. at 24-25. In sum, the trial court concluded:
[T]he court’s decision in this case was not based upon an overemphasis of a single custody factor relating to past and present abuse. On the contrary, it weighed a significant history of ongoing violent conduct by Father that began with violence against Mother and proceeded to violence against Father’s current girlfriend, and pushing [C]hild within two years prior to trial. The court also gave significant weight to father’s current refusal to accept responsibility for his history of violence
Id. at 25 (emphasis in original, unnecessary capitalization omitted).
Based on our review, we discern no abuse of discretion or error of law by the trial court when considering Father’s prior acts of violence and abuse against Mother and others. As explained above, when entering any form of custody, the trial court is required to consider each of the section 5328(a) custody factors. See J.R.M., 33 A.3d at 652. Moreover, the General Assembly has mandated that trial court shall “giv[e] substantial weighted consideration to the factors specified under paragraphs (1), (2), (2.1) and (2.2) which affect the safety of the child.” 23 Pa.C.S.A. § 5328(a) (emphasis added). Here, in discharging that obligation, the trial court properly and thoroughly considered the totality of the relevant circumstances, as required by section 5328(a), and gave weighted consideration to Father’s past and recent abusive conduct which could affect the safety of the Child. The trial court also considered Father’s attempts to minimize and deny his abusive and violent conduct. Although Father would prefer that the trial court
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ignore his more remote actions of violence and abuse, such actions are entirely relevant to the safety concerns for Child in the instant matter, particularly given that Father’s remote actions of violence and abuse toward Mother did not end at the conclusion of their relationship, but instead thereafter extended to Hanna, Ms. Yousaitis, and most recently to Child himself. Accordingly, as the trial court was required to give substantial weigheted consideration to factors affecting the safety of Child, we conclude that Father’s first issue merits no relief.
In his second issue, Father contends that the trial court abused its discretion by over-relying on Dr. Green’s report. According to Father, the trial court repeatedly cited to Dr. Green’s observations and risk-oriented commentary where it was unfavorable to Father, such as his temper, his conflict with his current partner, and Child’s reported fear of Father, while ignoring Dr. Green’s recognition of parental influence and the mixed nature of some data points. Father asserts that the record reflects that both he and Mother attempted to influence Child’s presentation to Dr. Green. However, according to Father, the trial court treated Dr. Green’s report of Child’s statements and emotional reactions as neutral and unmediated despite her acknowledgement that both Mother and Father sought to shape how Child saw the other parent.
Father additionally argues that although the record includes lay and documentary evidence bearing on his parenting, the impact of his
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involvement, and Child’s functioning, the trial court used these data points to undermine Father’s credibility. For example, Father points to his testimony that Child was “failing’ classes,” and claims that the court seized on the district’s grading scale to label Father’s view as inaccurate. Father’s Brief at 28. Father further contends that when evaluating Child’s testimony regarding his parents and his feelings about safety and loyalty, the court used that testimony to support Dr. Green’s assessment, rather than to inquire whether Child’s reluctance toward Father might be addressed through structured therapeutic contact rather than long-term restriction.
The trial court considered Father’s second issue and determined that it lacked merit. The court reasoned:
A review of the docket reveals that on November 7, 2024, it was Father who filed a petition for psychological/family systems evaluation. On December 11, 2024, by agreement of the parties, the court entered an order directing that a custody evaluation be performed. Thereafter, Dr. Green proceeded to perform her evaluation.
When Dr. Green completed her comprehensive report, the court scheduled the custody trial as soon as practicable. At the custody trial, the parties agreed to submit Dr. Green’s report as a joint exhibit. During the course of the testimony, both parties questioned witnesses about the contents of Dr. Green’s report thereby highlighting portions that they felt were important.
Notably, neither party produced any expert testimony that contradicted Dr. Green's findings.
The court reviewed Dr. Green’s report in its entirety and interspersed portions that the court found to be particularly important in the decision and order. It was the duty of counsel for the parties to address the limitations, context, or countervailing evidence. Upon completion of the evidence, it was within the discretion of the court to weigh the evidence.
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Trial Court Opinion, 1/27/26, at 40 (unnecessary capitalization omitted)
Based on our review, we discern no abuse of discretion or error of law by the trial court in relying on Dr. Green’s report. As noted by the trial court, Father requested the psychological/family systems evaluation and stipulated to the admission of Dr. Green’s report. Had Father wished to challenge any of Dr. Green’s opinions or conclusions, he could have objected to the admission of the report (rather than stipulating to its admission), or retained another expert to provide alternative opinions and conclusions. However, Father did not do so.
In any event, as explained above, this Court 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. See Rogowski, 291 A.3d at 60-61. Further, with regard to issues of credibility and weight of the evidence, we must defer to the trial court. See id. Here, Father has not argued that Dr. Green’s opinions are unfounded or that the trial court’s findings are not supported by the record. Rather, Father merely argues that the trial court relied on portions of the report and other evidence of record that was unfavorable to him, rather than relying upon any potential evidence of record that might have been favorable to him. Importantly, Father has not shown that, by relying on the evidence of record negative to Father, the trial court committed a gross abuse of discretion. As indicated above, a gross abuse of discretion will only be found if the trial court overrides or misapplies
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the law, or exercises judgment which is manifestly unreasonable, or reaches a conclusion that is the result of partiality, prejudice, bias, or ill-will as shown by the evidence of record. See id. As Father has not shown a gross abuse of discretion by the trial court in this matter, we conclude that his second issue merits no relief.
Finally, we note that although Father included four issues in his statement of questions presented, see Father’s Brief at 5-6, in the argument section of his brief he provided a discussion for only his first two issues, see id. at 14-31. We note that in his table of contents, Father only identified two issues for our review, see id. at ii; thus, he may have intended to omit his third and fourth issues. Nonetheless, in the event that Father intended to present his third and fourth issues for our review, his failure to include any discussion regarding those issues precludes appellate review. See Pa.R.A.P. 2119(a) (providing that the appellant shall provide a discussion and citation of pertinent authorities for each issue raised on appeal); see also Umbelina v. Adams, 34 A.3d 151, 161 (Pa. Super. 2011) (holding that where an appellate brief fails to provide any discussion of a claim with citation to relevant authority or fails to develop the issue in any other meaningful fashion capable of review, that claim is waived). Thus, Father has waived his third and fourth issues.
In sum, as we discern no abuse of discretion or error of law by the trial court in relation to its custody order, we affirm the order.
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Order affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 9/9/2026