Sharples, H. v. Sharples, J.

J-A12038-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
HEATHER SHARPLES : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES P. SHARPLES :
:
Appellant : No. 2894 EDA 2022
Appeal from the Order Entered October 20, 2022
In the Court of Common Pleas of Chester County Civil Division at No(s):
2018-01294-CU
HEATHER SHARPLES : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES P. SHARPLES :
:
: No. 3028 EDA 2022
APPEAL OF: DIANE REESER AND :
DOUGLAS REESER :
Appeal from the Order Entered October 20, 2022
In the Court of Common Pleas of Chester County Civil Division at No(s):
2018-01294-CU
BEFORE: OLSON, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 1, 2023
James P. Sharples (“Father”) and Diane and Douglas Reeser
(“Grandparents”) appeal from the modified custody order entered on October
20, 2022, following a three-day trial. We affirm in part and reverse in part.
Father and Heather Sharples (“Mother”) have one daughter (“Child”),
who was born in 2008. Mother filed a complaint for custody in 2018, which
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resulted in a stipulated custody order giving the parents equally shared legal
and physical custody of Child. Grandparents, who are Father’s parents,1
petitioned to intervene. The court granted them standing and, in October
2019, granted them physical custody of Child twice a year. The parties entered
another stipulated custody agreement in March 2020,2 which modified
Grandparents’ custodial time to one week in the summer and one long
weekend in the winter, to be exercised during Father’s custodial time. The
order provided that if Grandparents chose to exercise their summer week
during one of Mother’s custodial weeks, Father would have to cede custody to
Mother during the preceding week.
Father filed an emergency petition for a custody evaluation in February
2021, citing concerns about both Mother’s and Child’s mental health. Following
an evidentiary hearing, the court ordered a custody evaluation and
psychological assessment of all parties by a forensic psychologist, Dr. Dawn
Sheehan. Father thereafter filed an emergency petition for primary custody.
After more conciliation conferences, the court entered a September 2021
temporary custody order, followed by an October 2021 modified custody
order. The court granted Father primary physical custody and reduced
Mother’s award to partial physical custody for three hours every Tuesday
evening and for the duration of alternating weekends. The order specified that
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1 Paternal Grandfather is Father’s stepfather. See Pa.R.A.P. 1925(a) Opinion
(“1925(a) Op.”), 1/9/23, at 2 n.1.
2 The court adopted the stipulation as an order in April 2020.
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“[d]uring Mother’s overnights, Child shall have her phone and may call
someone to assist in leaving the house for the purpose of diffusing the
situation when the conflict escalates. Mother shall permit Child to leave.”
Custody Order, 10/28/21, at ¶ 7(d). The order directed Mother to continue
individual therapy and Child to continue therapy with a court-ordered
counselor. It further stated family therapy could begin at the recommendation
of Mother’s therapist. It altered Grandparents’ custody slightly, providing that
they could choose their week of summer custody. It stated that if they chose
a long weekend in the winter during Mother’s custody time, Father must
provide Mother with makeup time from his schedule within 30 days.
Father and Mother both filed petitions to modify custody in the spring of
2022. The court entered an order in May 2022 stating the October 2021
custody order would remain in effect. It did modify the order to the extent
that the new order allowed Child’s counselor to choose to expand Child’s
individual therapy to include one or more family members, rather than
allowing for family therapy to commence upon the recommendation of
Mother’s therapist.3
Father demanded a trial, and the court held hearings from September
20 to 22, 2022. It heard the testimony of Mother, Mother’s fiancé, Father, and
Grandmother, and interviewed Child in camera. The court also considered the
expert testimony of Dr. Sheehan, the results of the court-ordered custody
____________________________________________
3 By separate order, the court also granted a petition Father had filed to enjoin
Mother from making disparaging remarks.
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evaluation, dated October 2021, and the testimony of Child’s court-ordered
counselor, Jennifer Krumenacker (“Counselor Krumenacker”).
The court issued a modified custody order – the order under appeal –
on October 20, 2022.4 It eliminated Mother’s custodial weekends. However, it
retained Mother’s custody times on Tuesdays evenings from 5 to 8 p.m., and
stated Child “shall not be permitted to refuse to attend or terminate Mother’s
custodial time, nor request early departure or late arrival, without Mother’s
express consent.” Final Order for Custody, 10/20/22, at ¶ 3(i).5 The court
modified Grandparents’ custodial time such that, rather than any specific
amount or scheduled time, Grandparents could exercise custody “[s]olely
during Father’s custodial time as may be agreed between Grandparents and
Father[.]” Id. at ¶ 11(a). Grandparents were not permitted to request custody
“during any part of Mother’s custodial time.” Id. at ¶ 11(b).
The court ordered Child to continue individual therapy with Counselor
Krumenacker, Mother to continue individual therapy with her own therapist,
and Father to begin individual co-parenting therapy. It also directed Mother
and Child to participate together in reunification therapy with a different
therapist. Paragraph 12 of the order prohibited Father and Grandparents from
giving or lending Child any motorized vehicles, electronics, jewelry, or more
____________________________________________
4 The order was filed on October 17, 2022, but notice was sent to the parties
on October 20, 2022. See Pa.R.C.P. 236.
5 The court also gave Mother custody for a few hours on most holidays, and
for 12 hours on Mother’s Day.
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than $100 of cash or cash equivalents, without Mother’s express written
consent. It also forbade the parties from disclosing to Child when Mother
withheld her consent for any gift. By separate order, the court appointed a
Parenting Coordinator for a 12-month term. See Pa.R.C.P. 1915.11-1(a).
Father and Grandparents moved for reconsideration, which the court
denied. Father and Grandparents each filed a notice of appeal. This Court
consolidated the appeals.
Father presents the following issues:
1. Did the Trial Court commit an error as a matter of law or abuse
its discretion by inappropriately applying the factors pursuant to
23 Pa.C.S. § 5328(a) contrary [to] the weight of the evidence
presented at trial, in particular, factors 2, 4, 7, 8, 9, 10, and 15?
2. Did the Trial Court commit an error as a matter of law or abuse
its discretion by disregarding the opinions of Jenny A.
Krumenacker (Minor Child’s court-mandated treating therapist),
Dr. Dawn Sheehan (court-appointed psychologist), and Mother’s
own testimony all of whom concluded that it would be in the best
interest of [Child] to have a break in custody with Mother,
particularly after Mother failed to present any contrary expert
testimony at trial?
3. Did the Trial Court commit an error as a matter of law or abuse
its discretion by disregarding the opinions of Jenny A.
Krumenacker and Dr. Dawn Sheehan that reunification therapy or
joint/family counseling was not recommended between Minor
Child and Mother until both parties made progress with their
individual therapy efforts?
4. Did the Trial Court commit an error as a matter of law or abuse
its discretion by not allowing Minor Child to adequately express
her feelings, thoughts, and concerns regarding her relationship
with Mother?
5. Did the Trial Court commit an error as a matter of law or abuse
its discretion by removing the provision contained in the October
28, 2021 Order providing [Child] the ability to terminate visitation
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with Mother during high-conflict situations, despite expert and
witness testimony supporting a continued need for this provision
in Minor Child’s best interest?
6. Did the Trial Court commit an error as a matter of law or abuse
its discretion by assuming facts not of record and, sua sponte,
implementing spending restrictions (by both item and price) on
Father despite no party asking for such relief and no evidence or
testimony at trial to justify the same?
7. Did the Trial Court commit an error as a matter of law or abuse
its discretion by failing to incorporate adequate provisions
regarding Father’s ability to vacation or plan extracurricular
activities with [Child] pursuant to Paragraphs 3(a)(i) & (ii) of the
October 17, 2022 Order?
Father’s Br. at 4-5 (suggested answers omitted). Grandparents raise the
following issues:
1. Whether the trial court erred as a matter of law and/or abused
its discretion by exceeding its adjudicatory authority under
Section 5323 of the Pennsylvania Child Custody Act by restricting
Grandparents’ ability to make gifts or loans to the Child where:
a. The evidence did not support a conclusion that such gifts
caused or would cause an ongoing risk of harm to the Child,
and the trial court made no finding of ongoing risk of harm
or need for safety conditions as required by Section 5323(e)
of the Child Custody Act.
b. Absent evidence of harm to the Child, the spending
restrictions are an extraordinary invasion into the privacy of
the Grandparents’ home and relationship with the Child.
2. Whether the trial court erred as a matter of law, abused its
discretion, and/or violated the Grandparents’ right to due process
by restricting their right to make gifts or loans to the Child where:
a. Mother did not request such relief from the Court;
Grandparents were given no notice that spending
restrictions might be imposed on them; and Grandparents
had no warning that they needed to offer evidence about
financial matters ordinarily irrelevant in child custody cases.
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b. The denial of due process resulted in a factual error that
the Child’s Father and Grandparents indulge her more than
Mother; and cause the Child to be too focused on material
possessions.
3. Whether the trial court erred as a matter of law and/or abused
its discretion by modifying paragraph 5 of the order of October 28,
2021 relating to vacations, without delineating its reasons
pursuant to Section 5323(d) of the Child Custody Act, denying the
Child the ability to join her Grandparents for an annual seven-day
seashore vacation in a rental property, which has been a family
tradition for more than a decade.
Grandparents’ Br. at 19-21 (answers below omitted). We have reordered the
issues raised by both parties in our discussion below, for ease of disposition.
“In reviewing a custody order, our scope is of the broadest type and our
standard is abuse of discretion.” D.K. v. S.P.K., 102 A.3d 467, 478 (Pa.Super.
2014) (quoting J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa.Super. 2011)). We will
“accept the factual findings of the trial court that are supported by competent
evidence of record[.]” S.S. v. K.F., 189 A.3d 1093, 1098 (Pa.Super. 2018).
“[W]ith 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.” D.K., 102 A.3d at 478 (quoting J.R.M., 33 A.3d at 650). We may
reverse the court’s custody decision only if it “involve[s] an error of law, or
[is] unreasonable in light of the sustainable findings of the trial court.” Id.(quoting J.R.M., 33 A.3d at 650).
A trial court must determine custody based on the best interest of the
child. T.M. v. H.M., 210 A.3d 283, 288 (Pa.Super. 2019). A non-exhaustive
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list of 16 factors for the court to consider when making a custody decision is
statutorily prescribed:
§ 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) (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.
(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child
adequate for the child’s emotional needs.
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(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and special
needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability
to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with one
another. A party’s effort to protect a child from abuse by
another party is not evidence of unwillingness or inability to
cooperate with that party.
(14) The history of drug or alcohol abuse of a party or
member of a party’s household.
(15) The mental and physical condition of a party or
member of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S.A. § 5328(a). The court has discretion to determine the relative
weight to give each factor. T.M., 210 A.3d at 289.
When determining whether to award custody to a grandparent with
standing, the court must consider the foregoing factors in conjunction with
three additional factors:
(i) the amount of personal contact between the child and the party
prior to the filing of the action;
(ii) whether the award interferes with any parent-child
relationship; and
(iii) whether the award is in the best interest of the child.
23 Pa.C.S.A. § 5328(c)(1). Grandparents bear the burden of demonstrating
that their exercise of custody is in the child’s best interest and not to the
detriment of the parent-child relationship. D.R.L. v. K.L.C., 216 A.3d 276,
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279 (Pa.Super. 2019). There is a presumption that custody will be awarded to
a parent over a nonparent, and that presumption may only be rebutted by
clear and convincing evidence. 23 Pa.C.S.A. § 5327.
I. Mother’s Partial Custody
Father first argues the court abused its discretion in failing to grant him
sole custody after weighing the custody factors, and takes issue with the
weight the court assigned to factors 2, 4, 7, 8, 9, 10, and 15. Father argues
the court erred in not giving more weight to factor 2 (present and past abuse
by a party and continued risk of harm), and factor 4 (need for stability and
continuity). Father asserts that Child does not have safety or stability when in
Mother’s care. He claims Child suffers from skin and eyebrow picking,
depression, and anxiety due to conflict when in Mother’s custody. He cites a
portion of the custody evaluation stating that the Mother-Child relationship is
“highly maladaptive and chaotic,” and Counselor Krumenacker’s testimony
that the relationship is “toxic and chaotic.” Father’s Br. at 13, 15-16 (quoting
Comprehensive Custody Evaluation (“Evaluation”), 10/19/21, at 73, and N.T.,
9/20/22, at 41).
Father further argues that the court abused its discretion when weighing
factor 7, Child’s preference. Father asserts that the court should have weighed
the Child’s preference more heavily, pointing out that the previous trial judge,
Dr. Sheehan, and Counselor Krumenacker all described Child as bright,
mature, and respectful. Id. at 19. Father claims that the court’s findings that
Child is self-centered, undisciplined, entitled, and overindulged are against the
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weight of the evidence. Father relatedly argues the court’s questioning of Child
in camera demonstrated bias against Child and that the court did not foster
an environment where Child could express her true feelings and concerns. Id.
at 37.6
According to Father, the court also abused its discretion when weighing
factor 8 (one parent’s attempts to turn the child against the other parent).
Father argues the evidence demonstrated that Father attempted to encourage
Child to engage with Mother during her custody periods, whereas Mother made
false accusations against him to third parties. Id. at 21-23.
Regarding factor 9 (maintaining a loving, stable, consistent and
nurturing relationship with the child), Father asserts that the Evaluation shows
that Mother does not provide a stable, consistent, and nurturing relationship
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6 Father offers the following as examples of the court’s inappropriate
questioning:
• “You said you don't have any interaction with [Mother] when
you are there so how is your relationship stressing you out
when you are not interacting with her?”
• “But you sit in your room by choice, correct?”
• “You do have friends in the neighborhood you could go visit,
correct?”
• “Would you like to fix the relationship with your mom?”
• “Did you ever try talking to your mom?”
• “Do you report back to your dad about what happens at your
mom’s house?”
Father’s Br. at 38-39 (citations to N.T., 9/22/22, at 53-56 omitted)
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with Child. Id. at 23. Similarly, regarding factor 10 (meeting daily needs),
Father claims that the record supports a conclusion that Mother cannot
currently provide for Child’s daily needs. He maintains that Dr. Sheehan
testified that extended periods of time with Mother produce “adverse
childhood experiences” which have long-term negative consequences. Id. at
25-26 (quoting Evaluation at 73).
As for factor 15 (parent’s mental and physical condition), Father asserts
that Mother suffers from anxiety, complex PTSD, substance abuse (cocaine,
alcohol, marijuana), and is promiscuous. Id. at 26. Father claims Mother
testified she does not take her prescribed medications, and that Dr. Sheehan
opined that Mother cannot regulate her emotions without her medications and
requires further individual therapy before she can address her relationship
with Child. Id. at 26-27.
More generally, Father argues that the court abused its discretion in not
granting him sole custody because he claims Dr. Sheehan and Counselor
Krumenacker agreed that a complete break in Mother’s custody was
warranted. Id. at 16-17 (citing R.882a (Evaluation at 78) and N.T., 9/20/22,
at 41). He contends that Mother did not present any evidence to contradict
their opinions on these points, and the court abused its discretion in
disregarding the uncontradicted testimony. Id. at 28, 32-33. Father argues
the court erred in dismissing Counselor Krumenacker’s opinion on the grounds
that she is not an expert. Father argues she has a master’s degree and a
license, possesses knowledge beyond the average lay person, and was
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appointed Child’s counselor by the court and ordered to remain involved. Id.
at 29-31 (citing Pa.R.E. 702). Father claims Mother even agreed a break was
warranted. Id. at 29 (citing N.T., 9/21/22, at 83-84).
We find Father is due no relief on this issue. First, while Mother testified
that she agreed with Counselor Krumenacker’s recommendation that some
break in custody was warranted, she also stated she believed she and Child
were already taking the break during the month preceding trial. Mother stated
she did not agree with formally taking away custody indefinitely, which she
anticipated would only spur further litigation. N.T., 9/21/22, at 79, 83-84,
142. The court also considered that, because Child had not seen Mother for
the month preceding the hearing, Child had already had a “break” in custody.
1925(a) Op. at 3-4, 8.
Next, while Father relies heavily on the expert opinion of Dr. Sheehan,
the court explained that it took the Evaluation and Dr. Sheehan’s testimony
with a grain of salt, considering that the Evaluation “was produced nearly one
year ago and is somewhat stale.” Memorandum in Support of Custody Order
(“Trial Ct. Mem.”), 10/20/22, at 2 n.1. The court further found that the
Evaluation had “diminished value” in helping it assess the current state of the
parties and their relationships because Father had allowed Child to read it,
which, the court found, altered and exacerbated the conflict between Child
and Mother. See id.; 1925(a) Op. at 6 (citing Father’s Pet. to Modify, 3/8/22,
at ¶ 7).
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Nevertheless, while it did not wholly accept Dr. Sheehan’s opinions, the
court “agree[d] with Dr. Sheehan’s conclusion that the reports of conflict
between Mother and [Child], Mother’s maladaptive tendencies and the degree
of [Child]’s emotional distress should bear significant weight.” Trial Ct. Mem.
at 12. It acknowledged that “Mother appears to suffer from anxiety, trauma-
related symptoms and maladaptive tendencies that negatively impact her
insight, judgment, coping skills and parenting skills.” Id. at 11.
At the same time, the court observed that the negative incidents
between Child and Mother described in the Evaluation had not required any
intervention by protective services. Id. at 4. It also observed that the
Evaluation stated Child’s behavioral issues are not caused solely by her
relationship with Mother, but also by stress due to “peer issues,” custody
litigation, and Grandparents’ intervention in the custody case. Id. at 11. It
further observed that the Evaluation did not actually recommend a break in
Mother’s custody. Rather, the court noted, it stated that a partial custody
schedule would remain appropriate “so long as Mother engages in appropriate
treatment recommendations and Child remains in counseling.” 1925(a) Op. at
8-9 (quoting Evaluation at 77).7 The court noted that Mother is currently
participating in individual therapy and was ordered to continue doing so. Id.
at 9. Father’s argument that the court failed to give proper consideration and
weight to Dr. Sheehan’s expert opinion holds no water.
____________________________________________
7 The page of the Evaluation cited by Father does not address a break in
custody. See R.882a (Evaluation at 78).
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In contrast, the court did not find Counselor Krumenacker’s testimony
to be credible and that it found her to be biased against Mother. Trial Ct. Mem.
at 3; 1925(a) Op. at 9 n.6. It recounted two times when Counselor
Krumenacker testified that Mother had behaved inappropriately, which
contradicted or over embellished Child’s testimony. Trial Ct. Mem. at 3-4. It
also considered that Counselor Krumenacker tells Child Mother “needs more
work,” which the court found “perpetuate[s] a negative narrative about
Mother.” Id. at 4; see also 1925(a) Op. at 6-7. The court also acknowledged
that Father did not offer Counselor Krumenacker as an expert witness.
1925(a) Op. at 9 n.6.
We defer to the court’s credibility finding regarding Counsellor
Krumenacker and the weight it assigned her testimony. We find no merit to
Father’s argument that the court committed an error of law when stating that
Counselor Krumenacker was not an expert witness, as Father did not offer her
as one. See N.T., 9/20/22, at 39 (counsel objecting to a question posed to
Counselor Krumenacker on grounds that “she’s not here as an expert”).
In addition to considering Dr. Sheehan’s opinion, the court found it
would not be in Child’s best interests to grant Father sole custody because
doing so would place Child “in the echo chamber of Father and Grandparents’
disparaging comments regarding Mother.” Trial Ct. Mem. at 9. The court was
“not convinced that Father’s over-indulgence of [Child], coupled with his
undermining of her relationship with Mother, is substantially better than the
conflict[ed] relationship [Child] has with her Mother.” Id. While the court did
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not specifically mention the evidence Father claims proves that he encourages
contact with Mother or that Mother has tried to turn Child against him, the
court placed great weight on the fact that Father let Child read the Evaluation8
and Child’s own testimony that Father and Grandparents make negative
statements about Mother. Id. at 8. It also found that “Father and
Grandparents have increased the level of conflict by empowering [Child] to
demand to be picked up when she does not get her way with Mother and
disparaging Mother.” Id. at 10.
Regarding Child’s preference for custody with Father, the court
acknowledged this preference and noted Child’s intelligence. Id. at 6.
However, it also found Child was “self-centered, which is not atypical for a
teenager, undisciplined, entitled, and overindulged.” Id. It considered her
preference for staying with Father in light of the fact that Child “generally only
needs to ask for something in order to receive it and she is rarely disciplined,”
which it viewed in contrast with Mother’s home, where she must share a
bathroom and common living areas. Id. It also considered Child’s preference
for Father in view of Father’s allowing her to read the Evaluation, which
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8 The Evaluation stated that “no party should discuss any matters related to
the legal or evaluative process of this case with the child.” 1925(a) Op. at 5
(quoting Evaluation at 78). Dr. Sheehan testified that she was concerned that
Father allowed Child to read the Evaluation. Id. (quoting N.T., 9/21/22, at 17-
18). The court found Father did not testify credibly when he stated he had
only allowed Child to read a few sentences of the Evaluation from the
computer screen while she looked over his shoulder. Id. at 6.
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“provided a narrative to avoid the more mundane trappings of Mother’s home”
and reinforced Father’s negative statements about Mother. Id. at 7, 8.
The court’s findings have a basis in the record, and we defer to the trial
court’s credibility determinations and the weight it assigned to the various
factors. The court considered the evidence on which Father relies. It simply
did not give it the weight that Father would have liked. Overall, given the
court’s sustainable findings, we do not conclude that the court’s decision to
deny a complete break in Mother’s custody and allow Mother to retain three
hours of custody a week9 to be unreasonable or an abuse of discretion.
In addition, we find no merit to Father’s argument that the court abused
its discretion when conducting the in camera interview of Child. While any
questioning by an authority may be intimidating to a 14-year old child, the
transcript shows that the court asked Child objective, impartial questions
about her perceptions of and interactions with both Mother and Father. It also
gave Child multiple opportunities to provide supplemental information. See
N.T., 9/22/22, at 3-57.
Father further argues that the court erred in not including in the custody
order any language, such as was included in the October 2021 order, that
would give Child the ability to terminate visitation with Mother during high-
conflict situations. Father’s Br. at 40-42.
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9 With additional time on holidays.
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We find no merit to this argument. The previous order stated that,
“[d]uring Mother’s overnights, Child shall have her phone and may call
someone to assist in leaving the house for the purpose of diffusing the
situation when the conflict escalates. Mother shall permit child to leave.”
Custody Order, 10/28/21, at ¶ 7(d). However, this language by its terms
applies only to overnight visits, and the instant order does not include any
overnights with Mother.
Moreover, while the instant order states Child “shall not be permitted to
refuse to attend or terminate Mother’s custodial time, nor request early
departure or late arrival, without Mother’s express consent,” Final Order for
Custody, 10/20/22, at ¶ 3(i), this provision does not expressly address
emergency situations. Rather, it serves as a counterbalance to the court’s
finding that Child regularly uses her ability to terminate visits as leverage and
was intended to prevent any further conflict between the parties. See 1925(a)
Op. at 12 (“The trial court was and remains unwilling to provide Child with a
cudgel that can be used whenever it appears that Mother may deny her
undivided attention, a request, demand, or threaten discipline. Creating or
permitting such a dynamic is not in the best interests of Child”). Importantly,
the order provides for Child to contact the non-custodial parent, and vice-
versa. See Order, 10/20/22, at ¶ 10(a)-(c). The order is not unreasonable or
an abuse of discretion.
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II. Reunification Therapy
Father contends that the court abused its discretion in ordering Child
and Mother to participate in reunification therapy. According to Father, both
Counselor Krumenacker and Dr. Sheehan recommended against joint or
family therapy until Mother made more progress in her own therapy and
reunification therapy was recommended by the individual therapists. Father’s
Br. at 33 (citing N.T., 9/20/22, at 38; N.T., 9/21/22, at 12; Evaluation at 78).
Father cites Counselor Krumenacker’s testimony that reunification therapy will
not work until Mother understands why her relationship with Child is not
working. Id. at 34 (citing N.T., 9/20/22, at 45, 62-63). He also cites a portion
of the Evaluation stating Dr. Sheehan’s belief that “joint/family counseling
would be counterproductive for both Mother and Child.” Id. (citing Evaluation
at 73). Father argues that the court erred in disregarding the expert testimony
and cherry-picking a portion of the Evaluation to justify its decision, while
simultaneously claiming Dr. Sheehan’s opinion in the Evaluation was stale. Id.
at 35.
In its Rule 1925(a) opinion, the court explained that it ordered
reunification therapy because the Evaluation states that Heather Goldner
Kinsey, JD, LMFT, who mediated a session between Mother and Child in August
2021, recommended reunification therapy to Dr. Sheehan. 1925(a) Op. at 10
& 10 n.7.; see also Evaluation at 56. The court also observed that while Dr.
Sheehan was opposed to joint counseling at the time she authored the
Evaluation, Dr. Sheehan did not expressly testify she was opposed to
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reunification therapy at the time of trial. 1925(a) Op. at 10.10 The court also
considered that Child testified in camera that she does not know much about
Mother. Id. at 10-11 (citing N.T., 9/22/22, at 19).
The decision to require reunification therapy does not involve an error
of law and is not unreasonable. There is support in the record for the court’s
decision to order the therapy, even if does not prove to be immediately
effective.
III. Father’s/Grandparents’ Vacation Custody
Father argues that by allowing Mother to exercise custody every
Tuesday night, the court has interfered with Father’s ability to plan a week-
long vacation with Child to take place on a calendar week, and in particular,
an annual shore vacation with Grandparents. Father’s Br. at 51-52.
Grandparents similarly argue that eliminating their dedicated week of
custody time is not in Child’s best interest and that the court failed to delineate
its reasons for doing so. Grandparents’ Br. at 84-93. They point out that no
party petitioned the court to modify the provisions regarding their exercise of
custody. They also claim the court committed an error of law in concluding
that Section 5328(a) is not applicable to their request for custody. Id. at 89
(quoting 1925(a) Op. at 22).
____________________________________________
10 Father cites Dr. Sheehan’s testimony that at the time she authored the
Evaluation, she recommended Mother “needed pretty intensive therapy to
address her issues before she could have a healthy relationship with her
daughter[.]” N.T., 9/21/22, at 12. Dr. Sheehan testified she had not received
any further information that could put her in the position to alter her previous
recommendation. Id. at 12-13.
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We find Father is due no relief. As the trial court pointed out, Father has
custody of Child roughly 98% of the time, which provides him “more than an
adequate amount of time to take a vacation.” 1925(a) Op. at 4, 14. Indeed,
nothing in the custody order prevents Father from taking Child on vacation
from Wednesday morning through Tuesday morning. The court did not abuse
its discretion.
Regarding Grandparents, the court found that their intervention in the
custody matter for purposes of their annual vacation “is a source of stress” for
Child. Trial Ct. Mem. at 5, 12; see also 1925(a) Op. at 24 (citing N.T.,
9/20/22, at 174). The court observed that in the past, Grandparents’ requests
to exercise custodial time during Mother’s time have resulted in conflict. Trial
Ct. Mem. at 13. The court recounted that Dr. Sheehan recommended that if
Mother’s custody remains limited, Grandparents can negotiate their custody
time with Father; the court also found that Grandparents “have unfettered
access to [Child] during Father’s custodial time.” Id.; 1925(a) Op. at 5 n.5
(citing Evaluation at 78).
Given these findings, which are supported by the record, we see no
abuse of discretion in the court’s determination that Mother may exercise
custody every Tuesday night, at the expense of Grandparents’ ideal weekend-
to-weekend shore vacation. The court found that Grandparents have unlimited
access to Child during the 98% of the time that Father exercises custody, and
that scheduling Grandparents’ custody as a separate week was an
unnecessary source of conflict. Its decision to remove that source of conflict
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was not unreasonable. Grandparents can take Child on a nearly week-long
vacation, from Tuesday night to the following Tuesday afternoon, or can take
a vacation during the calendar week if they return Child to Mother for her visit
on Tuesday evening.
The court did err in stating the factors under Section 5328(a) are not
relevant when determining Grandparents’ custody. Those custody factors are
to be considered in conjunction with the factors specific to grandparents under
Section 5328(c). See D.R.L., 216 A.3d at 280.
Nonetheless, we do not find the error warrants reversal in this case, as
none of the factors of Section 5328(a) would render the court’s decision an
abuse of discretion. Grandparents have not carried their burden to prove their
calendar-week-long exercise of custody is in Child’s best interest and not to
the detriment of the parent-child relationship, and we therefore affirm the
court’s decision to relegate their custody time to that which Father shares with
them.
IV. Spending Restrictions
Both Father and Grandparents contest the court’s decision to limit their
spending on Child, and the court’s authority to do so. Father asserts that the
court’s conclusion that he provides Child with a lavish lifestyle and buys Child’s
affection is not supported by the record and disregards the evidence of the
actual reasons for the poor relationship between Child and Mother, which
Father asserts are “Mother’s inability to effectively convey . . . love, attention,
and affection.” Father’s Br. at 45.
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Father also argues that the spending restriction is impractical and
unworkable. See id. at 48-50. For example, Father queries whether he can
contribute more than $100 per month to Child’s education fund without
Mother’s approval, and what he will tell Child regarding her birthday gifts, for
example, as the order prohibits him from disclosing when Mother has withheld
consent for a given purchase. He also points out that he would have to involve
the court in every purchase to which Mother does not consent, and that Mother
does not need to give any reason for withholding consent. Father also stresses
that Mother did not request a cap on spending, and that the spending issue
was not central to the custody issue.
Grandparents argue the trial court did not have authority to impose a
spending restriction because it did not find there was a risk of safety or harm
to Child. Grandparents’ Br. at 45-46 (citing Section 5323(e)). According to
Grandparents, the best-interest standard does not grant the court unlimited
power, and due process prohibits the court from micromanaging child-rearing
decisions. Id. at 48-49 (citing Troxel v. Granville, 530 U.S. 57, 58 (2000)).
They further contend the court lacked authority to restrict spending sua
sponte, and quote Mother’s testimony that she does not feel the need to
compete with Grandparents’ spending. Id. at 55-56 (quoting N.T., 9/21/22,
at 153).
Grandparents also argue the record does not support the trial court’s
decision. They assert Child does not receive excessive gifts, and that she
testified that Father and Grandparents occasionally refuse when she asks for
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something. They point out Child did not testify as to how frequently she asks
for something, or how extravagant her requests are. Grandparents echo
Father’s argument that the order is broad and vague, and question whether
they can lend Child their car for a trip to the grocery store, and what they
would be allowed to tell Child if, for example, Mother did not give consent to
buy Child a graphing calculator for school. Id. at 65-66.
Grandparents also argue the court’s imposition of a spending restriction
deprived them of procedural due process. They assert that because no party
petitioned the court to intervene on this issue, Grandparents had no notice
that it would be decided by the court. They claim that although their spending
is mentioned in passing in the 78-page Evaluation, it is not among the
“Relevant Findings and Impressions,” the custody factors, or the
recommendations. Id. at 69-70. They argue that parties’ spending is typically
only evaluated in custody cases where there is poverty, relocation, or
attempts to influence a child’s testimony – none of which was present here.
They further claim that because they did not know they needed to
present evidence on this issue, they had no opportunity to be heard.
Grandparents assert that had they had proper notice, they would have
presented evidence to rebut the factual conclusions the trial court drew solely
from Child’s in camera testimony, such as the respective sizes of the parties’
homes, the cost of the treehouse, which Grandparents claim Grandfather built
himself, or the dress Child wore to court, which Grandparents claim was from
a sales rack at Macy’s and purchased by Father. Id. at 73-74. Regarding any
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assertions of overindulgence of the Child on their part, Grandparents assert
they would have presented rebuttal evidence of their house rules for Child,
including chores and discipline.
The trial court found that Grandparents have no substantive due process
rights in relation to custody of Child. 1925(a) Op. at 15-16. It found that
Grandparents were not deprived of procedural due process because they had
notice of the trial and an opportunity to be heard and call witnesses. Id. at
16. It stated Grandparents had “notice that their spending on Child may be at
issue based on the [Evaluation].” Id. at 17.11
Factually, the court found “[Child] is very oriented towards the material”
and that Grandparents “overindulge [Child] with material benefits,” based on
Child’s in camera statements to the court. Trial Ct. Mem. at 5, 6. It recounted,
At Father’s house [Child] enjoys her own bedroom, bathroom, a
basement set up as an art studio and a “she shed” in a living-
quarters over the garage. She generally only needs to ask for
something in order to receive it and she is rarely disciplined. The
same is true of Grandparents’ home, which is larger than her
Father’s home and includes a treehouse. Grandparents do not
discipline [Child], and she generally need only ask for something
to receive it. During her interview with the Court, [Child] made a
point of informing the Court that her Grandmother bought her the
new dress she was wearing the night before, because she “didn’t
have anything to wear to court.” Mother does not provide this level
of material indulgence to [Child].
____________________________________________
11 The court also found Grandparents waived their due process claims by
failing to make specific allegations to support their due process argument in
their Rule 1925(b) statement. However, as Grandparents raised the issue in
their motion for reconsideration, and the court addressed its merits in its Rule
1925(a) opinion, we find waiver inappropriate.
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Id. at 6-7. The court similarly recalled Child’s in camera statement that she
need only ask Father for something to receive it. 1925(a) Op. at 13.
In addition to Child’s in camera statements, the court made factual
findings on this issue, based on the Evaluation and Grandmother’s testimony:
• Friends of Grandparents informed Dr. Sheehan “Child is a bit
overindulged at times by her grandparents, but that this is not
excessive.”
• Mother told Dr. Sheehan, “[A]s long as I was spending money, [Child]
was fine. As soon as I said no, she rejects, refuses to participate, or take
pictures; then she calls [Grandparents] and they attack me.”
• Grandmother testified that “maybe, we’re Switzerland. We are the ones
that say for breakfast if you want a piece of chocolate, that’s fine. It’s
that kind of comfort where she just feels safe always,” and told Dr.
Sheehan that Child “likes to have undivided attention at times.”
• Grandfather told Dr. Sheehan that “we decide what to do in life based
on [Child].”
• Dr. Sheehan concluded that Grandfather is preoccupied with Child and
that Child sees Grandmother as a mother figure.
Id. at 17-19.
From these findings, the court concluded that imposing a spending
restriction on Father and Grandparents would be in Child’s best interest. It
relied on the Pennsylvania Supreme Court’s statement in Colonna v.
Colonna, 855 A.2d 648, 651 n.5 (Pa. 2004), that “the temptation for the well-
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off parent to buy the affection of the children, and the tendency of the children
to favor the parent who provides them with a more attractive lifestyle are
factors that do not serve the best interests of the children.” Id. at 19.
We find the trial court abused its discretion in restricting Father’s and
Grandparents’ spending. The parties had insufficient notice that the court
would be entertaining a cap, and the imposition of a cap was unreasonable.12
Due process requires notice and an opportunity to be heard “at a
meaningful time in a meaningful manner.” Everett v. Parker, 889 A.2d 578,
580 (Pa.Super. 2005) (citation omitted). Notice is required to ensure “that
each party is provided adequate opportunity to prepare and thereafter
properly advocate its position, ultimately exposing all relevant factors from
which the finder of fact may make an informed judgment.” Id. (citation
omitted). Where facts are at issue, due process almost always “requires an
opportunity to confront and cross-examine witnesses.” E.B. v. D.B., 209 A.3d
451, 463 (Pa.Super. 2019) (citation omitted). “[A]bsent adequate notice or
opportunity to prepare, neither [this Court] nor the trial court can assume that
the parties have either sufficiently exposed the relevant facts or properly
argued their significance.” Id. at 464 (citation omitted).
____________________________________________
12 Because we reverse on this basis, we need not address whether the court
otherwise had authority, in a custody dispute, to impose spending restrictions
on the parties where the child’s safety was not at issue.
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No one petitioned the court to impose a spending restriction or argued
for one at trial. When asked whether she was bothered by Grandparents’
expenditures, Mother testified,
Maybe in the beginning because I felt like I had to compete, but
I’ve accepted that – again, like I said, I can’t control them. I can't
control what other people have. You know, I'm just going to
provide what I can provide. If [Child] can't accept that, that's
something that we can work on. But I'm happy with what I have
because money doesn't buy love or happiness.
N.T., 9/21/22, at 153. Nor did any witness recommend a spending restriction,
and the portions of the Evaluation on which the trial court relies were
insufficient to put the parties on notice that the court might impose a spending
restriction. See Everett, 889 A.2d at 580-82 (finding Mother was deprived
due process when court modified custody even though Mother was not served
with meaningful notice of the hearing and Father’s request for custody was on
third page of his contempt petition).
Furthermore, there was inadequate support in the record for the
restriction. The only evidence regarding Father’s and Grandparents’
expenditures came from Child’s in camera interview. But even her testimony
did not address the amount of money Father or Grandparents spend on her.
Child was not subject to cross-examination. The record does not support a
finding that Child is “spoiled.”
Moreover, even if Child’s testimony was sufficient to support a
conclusion that it would be in Child’s best interest if Father and Grandparents
spent less money on her, the resolution imposed by the court was not
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reasonable. The record resoundingly supports the conclusion that creating
conflict between the parties is not in Child’s best interest. This was even part
of the court’s rationale in forbidding Father and Grandparents from attempting
to negotiate vacation time with Mother. Yet the court gave Mother exclusive
control over Grandparents’ and Father’s ability to spend more than $100 on
Child. This is not a reasonable directive. The likelihood of ensuing conflict is
high, and the preexisting conflict will likely be exacerbated by requiring Father
and Grandparents to ask Mother’s permission for expenditures over $100. For
the foregoing reasons, we vacate this portion of the order.
Order vacated as to paragraph 12. Order affirmed in all other respects.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/1/2023
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