G.J.L. v. D.M.L.

J. A24037/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
G.J.L., N/K/A G.J.C. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
D.M.L., : No. 896 MDA 2018
:
Appellant :
Appeal from the Order Entered May 3, 2018,
in the Court of Common Pleas of Lancaster County
Civil Division at No. CI-13-11919
BEFORE: OTT, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 11, 2019
D.L. (“Father”) appeals from the May 3, 2018 custody order entered in
the Court of Common Pleas of Lancaster County which, among other things,
granted shared legal custody of J.L., born in August 2008, and E.L., born in
August 2012 (collectively, “Children”), to Father and G.J.L., n/k/a G.J.C.
(“Mother”); awarded primary physical custody of the Children to Father and
partial physical custody to Mother; and disposed of four contempt petitions
that Father filed against Mother.1 Father also appeals from the March 9, 2018
denial of the oral motion that he made at the parties’ custody hearing
requesting that Mother be ordered to undergo a psychological evaluation and
1 The record reflects that the May 3, 2018 custody order also disposed of a
contempt petition that Mother filed against Father on February 28, 2018, the
denial of which Mother does not appeal.
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that the custody proceedings be stayed pending the results of that evaluation.
Father further appeals from the August 10, 2017 order that denied his request
for the appointment of a guardian ad litem for the Children, as well as his
request that the trial court order Mother and Father to participate in
co-parenting counseling. After careful review, we reverse in part, affirm in
part, and remand.
The trial court set forth the following factual summary:
[Mother and Father] are divorced. Since the parties’
separation in 2013, Father has been the primary
caretaker of the minor Children. From [e]arly 2015
through December 15, 2016, Mother experienced a
period during which she exercised physical custody on
a limited basis. Specifically, Mother only participated
in supervised periods of partial physical custody for a
few months in 2015. Beginning in December 2015,
Mother saw the minor Children on a few occasions
until the Court Order was entered by this court on
December 15, 2016. Since said Order, Mother has
exercised periods of partial physical custody every
other weekend and at times during the week.
Mother resides in a two-bedroom townhouse located
[in Lancaster]. Mother began living in said residence
in April 2016 after returning to Lancaster County
following a short period of residence in Las Vegas,
Nevada. The Children share a bedroom in Mother’s
residence. Mother’s residence is located in the
Manheim Township School District. Mother is
employed as a dental hygienist. Mother’s hours of
employment are variable and flexible inasmuch as she
contracts with various agencies at different times.
Mother has the ability to schedule her available hours,
Monday through Friday, with said agencies.
Father resides in a home located [in Lancaster] with
his fiancée, [B.M.] Father’s marriage to [B.M.] is
scheduled to occur in June 2019. The Children have
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their own bedrooms in Father’s residence. Father’s
residence is also located in the Manheim Township
School District. Father is a medical doctor, who is
currently employed as a pain management specialist
in Lebanon, Pennsylvania. Father generally works
Monday through Friday from 8:00 a.m. until
4:00 p.m.; however, Father’s work schedule is also
flexible.
Trial court opinion, 5/3/18 at 6.
The trial court set forth the following procedural summary:
[Mother] initially filed a Complaint in Custody on
December 20, 2013 against Father with respect to
[the Children]. By order dated January 6, 2014, the
court scheduled a custody conciliation conference for
February 4, 2014. At the conference held on
February 4, 2014, the parties were unable to reach an
agreement. Accordingly, the court approved the
recommendation of the conference officer and entered
an order dated February 27, 2014 granting primary
physical custody of the Children to Father and partial
physical custody to Mother. The court also scheduled
a follow-up conference for May 5, 2014. At said
conference, the parties were, again, unable to reach
an agreement to settle their disagreements.
Accordingly, the court approved the recommendation
of the conference officer and entered an order dated
May 30, 2014 scheduling an evidentiary hearing for
September 9, 2014. The matter proceeded to a
Custody Hearing on September 9, 2014. Following
said hearing, the court issued an Opinion and Order
dated September 24, 2014 granting shared legal
custody to the parties; primary physical custody to
Father during the academic year; partial physical
custody to Mother during the academic year; and,
shared physical custody to the parties during the
summer. In response to an uncontested motion in the
form of a letter sent to chambers, the court entered
an order dated October 20, 2014 clarifying the
counseling provisions of the September 24, 2014
Order.
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On January 29, 2015, Father filed a Counter-Affidavit
in response to Mother’s proposed relocation to
Las Vegas, Nevada with the Children. On January 30,
2015, the court issued an order scheduling a
Relocation Hearing for March 26, 2015 and setting
forth a briefing relative to the necessity of filing a
petition to modify custody. On February 17, 2015,
Mother filed a Petition to Modify Custody. Accordingly,
the matter proceeded to a Custody Modification and
Relocation Hearing on March 26, 2015. The court
entered an order on March 26, 2015, directing that
neither party remove the Children from Pennsylvania
pending a final order.
On March 27, 2015, the court entered an order
directing that Mother receive a psychological
evaluation by Jerome I. Gottlieb, M.D. On April 3,
2015, the court received a copy of Dr. Gottlieb’s report
and scheduled a hearing for June 16, 2015 to address
the issues raised in Dr. Gottlieb’s report regarding
Mother’s mental health issues. The court further
indicated that the purpose of the June 16, 2015
hearing was to consider whether Mother needed
further mental health treatment and whether her
periods of custody needed to continue to be
supervised in nature.
On April 14, 2015, the court issued an order, following
the hearing on March 26, 2015, directing that the
parties were to share legal custody of the Children;
Father was granted primary physical custody; and,
Mother was granted periods of supervised partial
physical custody. Additionally, the matter involving
whether Mother needed further mental health
treatment and whether her periods of custody were to
continue to be supervised would be addressed at a
subsequent hearing on June 16, 2015. By order dated
June 16, 2015, the court directed that the parties
were to share legal custody of the Children; Father
was granted primary physical custody; and, Mother
was granted periods of supervised partial physical
custody. The court further ordered that Mother was
to receive an evaluation and treatment from a
board-certified psychiatrist of her choosing and
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provide proof of treatment before she could resume
periods of unsupervised custody.[Footnote 1.]
[Footnote 1] This case was originally
handled by Judge Leonard G. Brown, III.
As of January 1, 2016, this case was
reassigned to this member of the trial
court to address any subsequent matters.
Mother filed a Petition for Modification of Custody
Order on July 25, 2016. By order entered on July 28,
2016, a custody conciliation conference was
scheduled for September 6, 2016. On August 23,
2016, Father filed a Petition to Schedule Hearing,
which was granted by order dated August 29, 2016
and the custody conciliation conference scheduled for
September 6, 2016 was canceled and a hearing was
scheduled for November 17, 2016. Due to a conflict
in the court’s schedule, the Custody Hearing was
rescheduled from November 17, 2016 to
November 18, 2016. The matter proceeded to a
Custody Hearing on November 18, 2016. Following
said hearing, which included ample testimony
regarding Mother’s evaluation and treatment from a
board-certified psychiatrist as ordered by the court on
June 16, 2015, the court issued an Opinion and Order
dated December 15, 2016 granting shared legal
custody to the parties; primary physical custody to
Father; and, partial physical custody to Mother.
The procedural history relevant to the instant appeal
is as follows: Father filed a Petition for Contempt,
Modification of Custody, and Special Relief on July 7,
2017. By order entered on July 11, 2017, a custody
conciliation conference was scheduled for
September 11, 2017 and a Rule was issued upon
Mother with respect to Father’s Petition for Special
Relief. Upon consideration of Father’s Petition for
Special Relief, and having received no answer from
Mother, the court denied Father’s request to have the
parties participate in co–parenting counseling;
granted Father’s request that [J.L.] participate in
individual counseling; and, denied Father’s request for
the appointment of a Guardian Ad Litem.
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Father filed a Petition for Special Relief on August 4,
2017 to address Mother’s scheduled vacation.
Following a presentation on said petition in Family
Business Court, the court denied Father’s Petition for
Special Relief and ordered that Mother was permitted
to vacation with the Children from August 9, 2017
until August 17, 2017 and, by specific agreement of
the parties, Father was permitted to have telephone
or FaceTime contact with the Children each day of
Mother’s vacation at 7:00 p.m.
Father filed another Petition for Contempt on
September 7, 2017, which was consolidated with
Father’s previously filed Petition for Contempt and
Modification of Custody Order, and scheduled for a
custody conciliation conference on September 11,
2017 by order entered on September 8, 2017. At the
September 11, 2017 conference, the parties were
unable to reach an agreement. Accordingly, the court
approved the recommendation of the conference
officer and entered an order dated September 27,
2017 indicating that the prior order dated
December 15, 2016 was to remain in effect and
scheduled an evidentiary hearing for December 13,
2017.
Father filed another Petition for Contempt on
November 21, 2017, which was consolidated with the
pending petitions and scheduled for an evidentiary
hearing for December 13, 2017.
Father filed a Petition to Disqualify Counsel for Conflict
on December 4, 2017. By order entered on
December 6, 2017, the court granted said petition.
By separate order entered on December 6, 2017, with
the agreement of the parties, the court rescheduled
the evidentiary hearing from December 13, 2017 to
February 2, 2018. Said hearing was rescheduled for
March 9, 2018 due to a court scheduling conflict by
order entered on January 3, 2018.
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Father filed another Petition for Contempt on
January 26, 2018, which was consolidated with the
Custody Hearing scheduled for March 9, 2018.
Mother filed a Petition for Contempt on February 28,
2018. By order entered on March 6, 2018, the court
ordered that a hearing on said petition would be
conducted at the same time as the Custody Hearing
on March 9, 2018.
The Custody Hearing was conducted on March 9, 2018
relative to Father’s Petition for Contempt, Modification
of Custody, and Special Relief filed on July 7, 2017;
Father’s Petition for Contempt filed on September 7,
2017; Father’s Petition for Contempt filed on
November 21, 2017; Father’s Petition for Contempt
filed on January 26, 2018; and, Mother’s Petition for
Contempt filed on February 28, 2018. Following
completion of the evidentiary hearing, the court
issued a comprehensive Opinion and Order dated
May 3, 2018 granting shared legal custody to the
parties; primary physical custody to Father; partial
physical custody to Mother; and, finding Mother to be
in contempt of the prior orders of this court.
On May 30, 2018, Father filed a timely Notice of
Appeal to the Superior Court of Pennsylvania relative
to this court’s Opinion and Order dated May 3, 2018;
as well as, a simultaneous Concise Statement of
Errors Complained of on Appeal Pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a)(2).
As such, this matter is ripe for review.
Trial court opinion, 6/29/18 at 1-6.
Father raises the following issues for our review:
I. Did the [trial] court err when it denied Father’s
request for a psychological examination of
Mother when such evaluation was in the best
interests of the Children?
II. Did the [trial] court err when it denied Father’s
request for the appointment of a guardian
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ad litem as well as Father’s request for
co-parent counseling thereby limiting Father’s
ability to prove contested issues of fact?
III. Did the [trial] court err when it failed to hold
Mother in contempt when she so obviously
violated the court’s orders?
IV. Did the [trial] court err in relying on
misstatements of evidence and testimony to
support its conclusions as to the best interests
of the Children?
Father’s brief at 7 (full capitalization omitted).
In custody cases under the Child Custody Act (“the Act”), 23 Pa.C.S.A.
§§ 5321-5340,
[w]e review the trial court’s custody order for an
abuse of discretion. We defer to the trial court’s
factual findings that are supported by the record and
its credibility determinations. However, we are not
bound by the trial court’s deductions or inferences,
nor are we constrained to adopt a finding that cannot
be sustained with competent evidence. In sum, this
Court will accept the trial court’s conclusion unless it
is tantamount to legal error or unreasonable in light
of the factual findings.
The primary concern in any custody case is the best
interests of the child. The best-interests standard,
decided on a case-by-case basis, considers all factors
which legitimately have an effect upon the child’s
physical, intellectual, moral, and spiritual well-being.
M.G. v. L.D., 155 A.3d 1083, 1091 (Pa.Super. 2017), appeal denied, 169
A.3d 522 (Pa. 2017) (internal citations and quotation marks omitted).
Father first contends that the trial court erred when it denied his request
for a psychological evaluation of Mother.
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Pennsylvania Rule of Civil Procedure 1915.8(a) permits a trial court to
order “any party to submit to and fully participate in an evaluation by an
appropriate expert or experts” upon its own motion, upon the motion of a
party with reasonable notice to the person to be examined, or by the parties’
agreement. Pa.R.Civ.P. 1915.8(a).
Here, the record reflects that at the conclusion of Mother’s
cross-examination at the custody hearing, Father’s counsel orally moved for
a psychological evaluation due to “concerns about possible competency issues
here with [Mother]” and requested a “stay [of] the proceedings pending a
psychological evaluation.” (Notes of testimony, 3/9/18 at 58-59.) The trial
court denied Father’s motion. (Id. at 59.)
In its Rule 1925(a) opinion, the trial court explained its denial of Father’s
motion as follows:
At the time of Father’s oral motion in this regard, no
testimony had been elicited sufficient to warrant an
order directing Mother to undergo a psychological or
psychiatric evaluation. Further, it is noted that the
parties had not reached any agreement on such
request nor had Mother been provided notice that
such request would be made on an ad hoc basis
during the evidentiary hearing. While it was obvious
to the court that Mother and a court clerk had heated
conversations when Mother would attempt to file
petitions in this matter, it was clear to the court that
any such disagreements resulted from Mother’s
misunderstandings of the rules, policies and
procedures of the Prothonotary’s Office at a time when
Mother is representing her own legal interests without
the benefit of legal counsel. Additionally, the court
observed Mother’s demeanor and affect during her
testimony. It was apparent to the court that Mother
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affirmatively desired the court to hear her “story”
from the beginning, which was a predominant and
recurrent theme throughout Mother’s testimony.
Mother would answer questions with a lengthy
forward or explanation in an obvious attempt to
ensure that the court was presented with her account.
Mother’s inclination to interject the circumstances
surrounding the incidents leading up to the parties’
separation and her perceptions of Father’s behaviors
during their separation was reasonable as she was
representing herself at the evidentiary hearing
without the benefit of counsel and given her perceived
need to provide her entire account to the court.
In denying Father’s request for a
psychological/psychiatric evaluation, the court
determined that Father, in large part, was attempting
to re-litigate concerns regarding Mother’s mental
health, which were previously addressed by this court
on multiple occasions. On March 27, 2015, the court
entered an order directing that Mother receive a
psychiatric evaluation by Dr. Jerome I. Gottlieb. On
April 3, 2015, the court received a copy of
Dr. Gottlieb’s report and scheduled a hearing for
June 16, 2015 to address the issues raised in
Dr. Gottlieb’s report regarding Mother’s mental health
issues; consider whether Mother needed further
mental health treatment; and, consider whether
Mother[’s] periods of custody were to continue to be
supervised. While the court issued an order dated
June 16, 2015 granting periods of supervised partial
physical custody to Mother, the court also ordered
Mother to undergo an evaluation and treatment with
a board-certified psychiatrist, which she successfully
completed. Subsequently, Mother filed a Petition for
Modification of Custody Order on July 25, 2016.
Following a lengthy evidentiary hearing on November
18, 2016, during which the court considered ample
evidence regarding Mother’s evaluation and treatment
with a board-certified psychiatrist, the court issued an
Opinion and Order dated December 15, 2016 granting
a schedule of unsupervised partial physical custody to
Mother.
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The primary basis of Father’s claims involves his
subjective concerns regarding the status of Mother’s
mental health. The issues raised by Father [are] his
numerous contempt petitions filed since July 2017
raise the same and/or similar concerns to those which
led the court to proceed in the fashion it did in 2015
with respect to Mother’s mental health treatment. At
the most recent evidentiary hearing, little, if any,
recent evidence was presented regarding Mother’s
purported mental health concerns. Rather, Father has
attempted to buttress his current allegations with
testimony regarding Mother’s prior behaviors. As
such, this court firmly finds that any previously
unconsidered evidence presented failed to warrant an
order for an updated psychological or psychiatric
evaluation of Mother, nor would a stay of the instant
proceedings be appropriate in a matter where such
permanency and consistency is needed for the benefit
of these minor Children.
The court is certainly cognizant of the history of the
litigation in this matter. Throughout all proceedings
in this matter, the court has given much thoughtful
consideration to the issues pertaining to Mother’s
mental health. There can be no doubt that Mother’s
treatment with Dr. Jingduan Yang, a board-certified
psychiatrist, was beneficial for Mother, even though
Father refused to recognize or approve of this
professional’s credentials. The court found Mother’s
testimony that said treatment was discontinued
because of financial issues to be credible and
unfortunate. The Court also found Mother’s testimony
that she continues to employ the treatment
techniques previously implemented by Dr. Yang to be
credible. Inasmuch as this court believed that further
treatment may be of assistance to Mother, the court
encouraged Mother to consider resuming counseling
with Dr. Yang or another psychiatrist who could
provide her insight into coping with the past
relationship difficulties. Although the court believed
that Mother may benefit from continued counseling,
considering the limited nature of any credible recent
testimony regarding such matters and the treatment
that Mother has successfully completed, the court
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affirmatively concluded that Mother was not so
inflicted or impaired to preclude her ability to
effectively parent these minor Children. While
Father’s efforts were, no doubt, grounded in his
natural desire to protect the Children, the court found
that his current allegations have become overly
persistent and are not adequately supported by the
record. Stated another way, upon thoughtful
consideration of the totality of the evidence presented
at all proceedings in this matter, the court
affirmatively disagrees with Father’s repeated
contentions regarding Mother’s mental health status.
Trial court opinion, 6/29/18 at 8-11.
The record reflects that pursuant to the trial court’s March 27, 2015
order, Dr. Jerome I. Gottlieb performed a psychiatric evaluation of Mother. In
his April 3, 2015 report, Dr. Gottlieb opined, within a reasonable degree of
medical certainty, that Mother suffers from delusional disorder, an unspecified
personality disorder, and at the time of the evaluation, was functioning at
60 percent. (Psychiatric report of Dr. Gottlieb, 4/3/15 at 11-12.) Dr. Gottlieb
explained that “[u]nder the DSM-V,[2] a Delusional Disorder is an individual
with a delusion(s) (false belief that does not respond to reasoning or facts).
‘Apart from the impact of the delusion(s) or its ramifications, functioning is
not markedly impaired, and behavior is not obviously bizarre or odd.’” (Id.)
Dr. Gottlieb noted that the medical records from Mother’s involuntary
psychiatric hospitalization in November 2013 “are entirely consistent with this
diagnosis.” (Id. at 12.) Dr. Gottlieb stated that “[u]nfortunately, a Delusional
2 Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition.
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Disorder is difficult to treat. It may or may not respond to antipsychotic
medication. In the current instance, [Mother] will be highly resistant to
treatment because she does not believe she has any psychiatric problems.”
(Id.) With respect to Mother’s unspecified personality disorder, Dr. Gottlieb
noted that “it does not fit into any one category,” but Mother “has developed
a long-standing maladaptive pattern of suppressing her emotions, particularly
anger.” (Id.) Regarding Mother’s treatment, Dr. Gottlieb concluded that “at
the very least, [Mother] needs to be involved in individual therapy over a long-
term basis. In addition, she needs to be followed by a psychiatrist over time.
She does not require in-patient hospitalization at this time. She may benefit
from a low-dose antipsychotic, such as Risperdal (she took this during her
brief hospital stay).” (Id.)
The record further reflects that the trial court scheduled a hearing for
June 16, 2015, “to consider whether Mother is in need of further mental health
treatment and whether her periods of custody shall be supervised.” (Order of
court, 4/14/15 at 1.) We note that the June 16, 2015 hearing transcript is
not in the certified record before us. Following the hearing, however, the trial
court entered an order granting the parties shared legal custody and granting
mother partial physical custody, provided that, among other things, Mother
receive a psychiatric evaluation before she could begin unsupervised custody
and that she undergo psychiatric treatment for “at least 12 months.” (Order
of court, 6/16/15 at 2.) Absent psychiatric treatment, the trial court required
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that Mother’s periods of physical custody be supervised. The record indicates
that Mother received psychiatric treatment for at least 12 months.
Thereafter, following a hearing on Mother’s July 25, 2016 petition to
modify custody, the trial court entered an order that granted Mother partial
physical custody of the Children, but required that Mother “continue to treat
with a board certified psychiatrist and provide Father with a letter from said
physician confirming said attendance at counseling every three (3) months.”
(Trial court opinion and order of court, 12/15/16 at 15, § VI, ¶ A.)
By Mother’s own admission, her last psychiatric treatment was in June
2017. (Notes of testimony, 3/9/18 at 39.) Mother stated that she
discontinued psychiatric treatment for financial reasons. (Id. at 36-37.)
Nothing in the record demonstrates that Mother was given leave of court to
discontinue psychiatric treatment.
In his brief to this court on this issue, Father avers that:
[b]ased on his own observations and the statements
made by Mother, both on social media and in person,
Father has sustained a reasonable belief that Mother
is not seeking appropriate treatment to address her
mental health issues. By Mother’s own testimony at
the custody hearing, she ceased treatment with her
psychiatrist in June 2017. (R. 576a) Additionally,
Mother testified that she believes Father’s fiancée is a
witch (R. 571a); that she has connections to the
government in Clark County, Nevada and in the
Federal Government (R. 574a); that secret agents
have the same car as she does (R. 571a); that she
believes Father and his fiancée do magic (R. 570a);
that angels have spoken to her (R. 577a); and that
she believes there is something magic and scary about
Lebanon, Pennsylvania (R. 578a).
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Immediately after Mother’s testimony, counsel for
Father requested that the Court stay the proceedings
pending a psychological evaluation of Mother. The
request was immediately denied. (R. 581a)
Father’s brief at 18-19.
The trial court opined that “[t]he primary basis of Father’s claims
involves his subjective concerns regarding the status of Mother’s mental
health.” (Trial court opinion, 6/29/18 at 10 (emphasis added).) It then
concluded that “upon thoughtful consideration of the totality of the evidence
presented at all proceedings in this matter, the court affirmatively disagrees
with Father’s repeated contentions.” (Id. at 11.)
The trial court’s conclusion, and its reasons for that conclusion, however,
are not sustained by competent record evidence. Although we recognize that
Father is a party to this litigation, that Father is not a psychiatrist, and that
Father’s beliefs regarding Mother’s mental health are subjective, we also
recognize that the record clearly demonstrates that Mother has a history of
mental-health problems that resulted in an involuntary commitment,
court-ordered supervised partial physical custody of the Children, and
court-ordered psychiatric treatment that she discontinued without leave of
court. Furthermore, in his April 3, 2015 report, Dr. Gottlieb opined that Mother
suffers from delusional disorder, that his review of Mother’s November 2013
involuntary commitment records are “entirely consistent” with delusional
disorder, that Mother suffers from an unspecified personality disorder, and
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that “at the very least,” Mother needs individual therapy “over a long-term
basis” and “needs to be followed by a psychiatrist over time.” (Psychiatric
report of Dr. Gottlieb, 4/3/15 at 11-12 (emphasis added).)
Moreover, when the trial court conducted its best-interests-of-the-child
analysis pursuant to Section 5328(a) of the Act,3 the trial court noted its
3 In custody disputes, trial courts are statutorily required to consider the
16 factors set forth in the best-interests test when determining the child’s best
interests. See 23 Pa.C.S.A. § 5328(a) (“[i]n ordering any form of custody,
the court shall determine the best interests of the child by considering all
relevant factors . . . .”); see also A.V. v. S.T., 87 A.3d 818, 821 (Pa.Super.
2014) (reiterating that “Section 5328 provides an enumerated list of
sixteen factors a trial court must consider in determining the best interests of
the child or children when awarding any form of custody.”).
Section 5328 of the Child Custody Act sets forth the 16-factor
best-interest test, as follows:
§ 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
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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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“lingering concerns that Mother continues to suffer from some degree of undue
fixation upon Father” when analyzing Factor 15 which addresses the mental
and physical conditions of the parties. (Trial court opinion, 5/3/18 at
(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.
42 Pa.C.S.A. § 5328(a).
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15, ¶ 15.) The trial court further stated that there is “no doubt” that Mother’s
court-ordered psychiatric treatment “was beneficial for Mother.” (Id. at
16-17.) The trial court found it unfortunate that financial issues caused
Mother to discontinue treatment. (Id. at 17.) The trial court then concluded
that although it believes “that Mother may benefit from continued counseling,
considering the limited nature of any credible recent testimony regarding such
matters, the court affirmatively concludes that Mother is not so inflicted or
impaired so as to preclude her ability to effectively parent these minor
Children.” (Id.)
The trial court’s analysis misses the mark. The question is not whether
the trial court believes Mother is “not so inflicted or impaired so as to preclude
her ability to effectively parent.” The question is whether a psychiatric
evaluation of Mother would be in the best interests of the Children. Moreover,
it is important to note that the trial court arrived at its conclusion that “Mother
is not so inflicted or impaired so as to preclude her ability to effectively parent
these minor Children” after considering “the limited nature of any credible
recent testimony regarding” her mental health. (Id. (emphasis added).)
Certainly, then, in the best interests of the Children, a current psychiatric
evaluation would aid the trial court in properly evaluating Factor 15 (Mother’s
mental condition) and Factor 16 (any other relevant fact) to ultimately
determine custody of the Children pursuant to the best-interests test. We
further note that although this court is aware that the primary concern in
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custody matters lies not with the past but with the present and future, Brooks
v. Brooks, 466 A.2d 152, 156 (1983), in light of the record before us, and in
the best interests of the Children, Mother’s mental health must be reevaluated
as a relevant consideration in the assessment of her future behavior and its
effect on the Children’s welfare.
We, therefore, find that it is in the best interests of the Children that
Mother undergo a court-ordered psychiatric evaluation.4
Father next contends that the trial court erred when it denied his request
for the appointment of a guardian ad litem for the Children, as well as his
request for co-parent counseling.
Pa.R.Civ.P. 1915.11-2 permits the trial court to appoint a guardian
ad litem to represent the best interests of the child in a custody action.
Pa.R.Civ.P. 1915.11-2(a). The appointment of a guardian lies within the
sound discretion of the trial court. Estate of Haertsch, 649 A.2d 719, 720
(Pa.Super. 1994). “Discretion must be exercised on the foundation of reason.
An abuse of discretion exists when the trial court has rendered a judgment
that is manifestly unreasonable, arbitrary, or capricious, has failed to apply
the law, or was motivated by partiality, prejudice, bias, or ill will.”
In re Duran, 769 A.2d 497, 506 (Pa.Super. 2001), quoting Harman ex rel.
Harman v. Borah, 756 A.2d 1116, 1123 (Pa. 2000).
4We note that Rule 1915.8 permits the trial court to assess the cost of the
examination to any or all of the parties. Pa.R.Civ.P. 1915.8(a)(1); see also
Miller v. Steinbach, 194, 681 A.2d 775, 776 (Pa.Super. 1996).
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In its Rule 1925(a) opinion, the trial court cites to an unpublished
memorandum of this court for the proposition that the appointment of a
guardian ad litem is appropriate in high-conflict custody cases. (Trial court
opinion, 6/29/18 at 13.) We note that the Internal Operating Procedures of
the Pennsylvania Superior Court prohibit a court, as well as a party, from
relying on or citing to an unpublished memorandum decision, except in certain
limited circumstances which are not present here. 210 Pa.Code § 65.37(A).
Nevertheless, the court based its analysis of this issue on that unpublished
memorandum decision to reach its conclusion that denial of Father’s request
for the appointment of a guardian ad litem for the Children was proper
because Father failed to provide the trial court “with a sufficient factual basis
. . . that there was any current extreme conflict between the parties during
the seven months following [its] Order dated December 16, 2016 nor was
[there] any inability to cooperate between the parties presented sufficient to
warrant” such an appointment. (Trial court opinion, 6/29/18 at 13.)
Once again, the trial court’s analysis misses the mark. The question is
not whether there is “any current extreme conflict” between Mother and
Father; the question is whether, under the circumstances presented in this
case, it is in the best interests of the Children to appoint a guardian ad litem
to represent their best interests. In light of the record before us, we conclude
that the appointment of a guardian ad litem is in the best interests of the
Children.
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Within this issue, Father also contends that the trial court erred when it
denied his request to enter an order requiring Mother and Father to attend
co-parenting classes.
The record reflects that Father filed a petition for contempt,
modification, and special relief on July 7, 2017. In that petition, Father
averred, among other things, that he had “requested, through counsel, that
the parties attend co-parenting counseling” and that “Mother will not
participate in such counseling with Father.” (Father’s petition for contempt,
modification, and special relief, 7/7/17 at 12, ¶ 12.) Father then requested
that the trial court enter an order that the parties participate in co-parenting
counseling. (Id. at 12, prayer for relief.) The trial court issued a rule upon
Mother to show cause, within 20 days, as to why Father’s requested relief
should not be granted. (Order of court, 7/10/17.) Mother failed to file a
response. (See order of court, 8/10/17.) Following argument on Father’s
petition,5 the trial court denied Father’s request that it order the parties to
participate in co-parenting counseling. (Id.)
In its Rule 1925(a) opinion on this issue, the trial court concluded that
“based upon the totality of the evidence presented [at the hearing on this
issue], the court affirmatively concluded that additional co-parenting
5 The July 7, 2017 argument was not stenographically recorded. (See trial
court opinion, 6/29/18 at 14.)
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counseling was unlikely to be beneficial to these parties, as disheartening as
such conclusion may be.” (Trial court opinion, 6/29/18 at 14-15.)
Once again, the trial court’s analysis misses the mark. The issue is not
whether the trial court believes that “additional co-parenting counseling [is]
unlikely to be beneficial to” Mother and Father; the issue is whether an order
requiring Mother and Father to participate in co-parenting counseling would
be in the best interests of the Children. The record belies the conclusion that
an order requiring the parties to participate in co-parenting classes would not
be in the best interests of the Children.
At this point, it is important to note that this case commenced
approximately five years ago when Wife filed a complaint in divorce on
December 20, 2013. In its May 3, 2018 opinion, the trial court set forth its
best-interests analysis pursuant to Section 5328(a) of the Act. Factors 2, 3,
4, 5, 6, 7, 10, 11, 12, and 14 weighed in favor of neither party. With respect
to Factor 2, the trial court stated that it “specifically rejects Father’s
contentions that Mother’s residence is not safe for the Children due to Mother’s
current mental state,” but acknowledges that “there may exist some lingering
concern regarding certain actions taken by Mother and the potential impact of
such actions on the emotional state of the Children. (Trial court opinion,
6/29/18 at 9, ¶ 2.)
With respect to Factor 1, the trial court did not determine which parent
is more likely to encourage and permit frequent and continuing contact
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between the Children and the other parent. Instead, the trial court
encouraged the parties to permit the Children to contact the other party, to
recognize the importance of frequent and continuing contact between the
Children and the other parent, to strive to improve their efforts to encourage
the Children to maintain such contact, and to improve their own ability to
communicate. (Id. at 8-9.)
With respect to Factor 8 (attempts of one parent to turn the Children
against the other parent), the trial court determined that Mother has
previously made negative comments about Father to the Children, but that
Mother did not have the “express intent of attempting to turn the Children
against Father.” (Id. at 12, ¶ 8.) The trial court then instructed the parties
of their “need to understand the importance of not making derogatory
comments about the other party in front of the Children, as well as the
importance of not discussing custody matters with the Children.” (Id.) The
trial court then stated that the parties “should focus on promoting a loving
relationship between the Children and the other parent.” (Id.) The trial court
also encouraged “the parties not to allow any lingering hostilities toward each
other from this litigation to affect the Children.” (Id.)
With respect to Factor 9, the trial court found that both Father and
Mother are capable of maintaining a loving, stable, consistent, and nurturing
relationship with the Children, except to the extent that Mother may continue
to make negative comments about Father to the Children. (Id. at 12, ¶ 9.)
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The trial court then “encouraged the parties to consider the need for
counseling so as to create a proper and safe environment for the Children”
should further concerns arise. (Id. at 13.)
With respect to Factor 13, the trial court concluded that there is “an
unfortunate amount of conflict between” Mother and Father. (Id. at 14, ¶ 13.)
The trial court noted that it is “apparent” that Father and Mother “have
established a less than ideal mechanism to facilitate cooperation for the
benefit of the Children” and recognized that Father and Mother “have clearly
chosen to minimize personal conflict with one another so as to avoid conflict.”
(Id.) The trial court then stated it “strongly encourages the parties to engage
in open dialogue with each other pertaining to issues involving the Children
and encourages the parties to improve upon their ability to communicate.”
(Id.)
With respect to Factor 15 (mental and physical condition of a party or
member of party’s household), the trial court stated that it does not have any
current concern with the mental or physical condition of Father or anyone in
his household, but “has lingering concerns that Mother continues to suffer
from some degree of undue fixation upon Father and Father’s purported
actions against her in the past.” (Id. at 15, ¶ 15.)
With respect to Factor 16 (any other relevant factor), the trial court
summarized Mother’s mental health history and then encouraged her to
consider resuming counseling. (Id. at 15-17, ¶ 16.) The trial court then
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expressed its “honest and sincere hope . . . that the parties channel their
efforts toward parenting the Children in a manner that is uplifting and
positive.” (Id. at 17.) The court then expressed its concern “that these
parties may never obtain the ability to effectively co-parent the Children.”
(Id.)
The trial court’s recognition that the parties harbor lingering hostilities
toward each other that may affect the Children; its suggestion that the parties
consider counseling to create a proper and safe environment for the Children;
its recognition that the parties have established a less than ideal mechanism
to facilitate cooperation of each other to benefit the Children; its suggestion
that the parties engage in open dialogue with respect to issues involving the
Children; its suggestion that the parties improve their communication; its
hope that the parties work toward parenting the Children in an uplifting and
positive manner; and its recognition that the parties may never be able to
effectively co-parent the Children demonstrate that it is in the Children’s best
interests that the parties be required to participate in co-parent counseling.
Father next contends that the trial court erred when it failed to hold
Mother in contempt “when she so obviously violated the court’s prior orders.”
(Father’s brief at 24.)
In considering an appeal from a contempt order, we place great reliance
upon the trial court’s discretion. Bold v. Bold, 939 A.2d 892, 894-895
(Pa.Super. 2007) (citation omitted). As such, appellate review of a contempt
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finding is limited to determining whether the trial court abused its discretion.
Id. (citation omitted).
Judicial discretion requires action in conformity with
law on facts and circumstances before the trial court
after hearing and consideration. Consequently, the
court abuses its discretion if, in resolving the issue for
decision, it misapplies the law or exercises its
discretion in a manner lacking reason. Similarly, the
trial court abuses its discretion if it does not follow
legal procedure.
Id. (citations omitted). Therefore, we will reverse an order granting or
denying a civil contempt petition only upon a showing that the trial court
misapplied the law or exercised its discretion in a manner that lacked reason.
MacDougall v. MacDougall, 49 A.3d 890, 892 (Pa.Super. 2012) (citation
omitted).
Generally, in civil contempt proceedings, the complainant bears the
burden of proving that the defendant failed to comply with a court order.
MacDougall, 49 A.3d at 892 (citation omitted). To sustain a finding of civil
contempt, the complainant must prove by a preponderance of the evidence
that (1) the contemnor had notice of the order that she alleges the contemnor
disobeyed; (2) the act constituting the alleged violation was volitional; and
(3) the contemnor acted with wrongful intent. Id. (citation omitted).
Moreover, we defer to the trial court’s credibility determinations with respect
to witnesses who have appeared before it because that court has had the
opportunity to observe their demeanor. Habjan v. Habjan, 73 A.3d 630,
644 (Pa.Super. 2013).
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Here, the record reflects that over the course of the litigation, Father
filed four contempt petitions against Mother. Father summarizes his
allegations as follows:
[First,] Mother failed and refused to continue
treatment with a board certified psychiatrist in direct
violation of the Court’s December 15, 2016 Order;
[second,] Mother failed and refused to allow Father to
have telephone contact with the [C]hildren during her
periods of custody in violation of the Court’s
December 15, 2015 Order and during her vacation
period in violation of the Court’s August 8, 2017
Order; [finally,] Mother made disparaging and
derogatory remarks about Father to the [C]hildren in
violation of the Court’s December 15, 2016 Order.
Father’s brief at 25.
The record further reflects that the trial court adjudicated Mother “in
contempt of [its order] dated December 15, 2016, inasmuch as she has
repeatedly, willfully, and intentionally prevented Father from maintaining
reasonable telephone contact with the minor Children, in violation of
[Section] VI(c) of said [o]rder.” (Trial court order, 5/3/18 at 28, ¶ VII.) The
trial court then imposed sanctions in the amount of $300. (Id.)
With respect to Father’s remaining averments of contempt, the trial
court found that Father failed to prove that Mother made derogatory remarks
to the Children about Father after entry of its December 15, 2016 order, and
even if Mother continued to make inappropriate comments about Father to
the Children after entry of that order, any act constituting an alleged violation
of the order was not volitional. (See trial court opinion, 5/3/18 at 18-24.)
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With respect to Mother’s failure to continue treatment with a board-certified
psychiatrist, the trial court found credible Mother’s testimony that she
discontinued treatment for financial reasons, and therefore, her failure to
continue treatment was not volitional. (Id. at 24.) We have carefully
reviewed the record and conclude that it supports the trial court’s factual
findings. We, therefore, decline Father’s invitation to revisit those factual
findings on appeal and affirm that part of the trial court’s order that denied
Father’s petitions for contempt.
Father finally contends that the trial court erred when it relied on
“misstatements of evidence and testimony to support its conclusions as to the
best interests of the Children.” (Father’s brief at 30 (full capitalization
omitted).) In this issue, Father, for the most part, reiterates the arguments
he advanced regarding the trial court’s determinations with respect to
Mother’s mental health. Our disposition of Father’s first issue on appeal is
dispositive here. Finally, we note that Father expresses his discontent that
the trial court found, as a matter of fact, that Father “previously suffer[ed]
from depression” because he previously took anti-depressants. (Father’s brief
at 34; trial court opinion, 5/3/18 at 15, ¶ 15.) Once again, we decline Father’s
invitation to revisit factual findings on appeal.
We reverse the custody order and remand directing the trial court to
(1) enter an order (i) directing that Mother undergo a psychiatric exam by a
board-certified psychiatrist; (ii) appointing a guardian ad litem for the
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Children; and (iii) requiring Father and Mother to attend co-parenting classes.
On remand, we also direct the trial court to reopen the custody hearing to
receive the testimony of the board-certified psychiatrist who will evaluate
Mother and the guardian ad litem who will represent the Children’s best
interests. Following receipt of that testimony, the trial court is directed to
conduct a best-interests-of-the-child analysis pursuant to Section 5328(a) of
the Act and enter a new custody order. Prior to the entry of the new custody
order, Mother’s periods of partial physical custody must be supervised.
Mother’s psychiatric evaluation, the guardian ad litem’s report, and the
reopened custody hearing should be accomplished as quickly as is practicable
to satisfy the interests of finality and stability in custody arrangements for the
Children. We order that the current custody arrangements be modified only
to the extent that Mother’s periods of partial physical custody be supervised
pending the outcome of the reopened custody hearing. We direct that the
reopened custody hearing take place immediately following Mother’s
psychiatric evaluation and the guardian ad litem’s review of all relevant
records as set forth in Pa.R.Civ.P. 1915.21, as well as the guardian ad litem’s
interviews with the Children, the family, and medical and/or social service
providers connected with the case.
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Order reversed in part and affirmed in part. Case remanded.
Jurisdiction relinquished.
Ott, J. joins this Memorandum.
McLaughlin, J. concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/11/2019
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