J-A27035-18

                                   2019 PA Super 126


    T.M.                                       :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    H.M.                                       :
                                               :
                       Appellant               :   No. 1081 EDA 2018

                 Appeal from the Order Entered March 15, 2018
     In the Court of Common Pleas of Lehigh County Civil Division at No(s):
                                 2015-FC-462


BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.

DISSENTING OPINION BY BOWES, J.:                         FILED APRIL 24, 2019

        I believe the trial court abused its discretion by refusing to order a

comprehensive custody evaluation as recommended by the court-appointed

expert, Ronald J. Esteve, Ph.D. Accordingly, I respectfully dissent from the

learned majority’s decision to affirm the order awarding T.M. (“Mother”)

primary physical custody of the minor child, J.M., who was born of Mother’s

marriage to H.M. (“Father”).

        Pursuant to Pa.R.C.P. 1915.8(a), a custody court “may order the

child(ren) and/or any party to submit to and fully participate in an evaluation

by an appropriate expert or experts.”1 Whether to order a custody evaluation

____________________________________________


1   Pa.R.C.P. 1915.8(a) provides as follows:

        Rule 1915.8. Physical and Mental Examination of Persons
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is a matter within the purview of the custody court. Jordan v. Jackson, 876

A.2d 443, 455 (Pa. Super. 2005) (“It is clearly within the court’s discretion

whether to order an evaluation.”). An abuse of discretion occurs where a trial

court “overrides or misapplies the law or exercises judgment which is

manifestly unreasonable, or reaches a conclusion that is the result of

partiality, prejudice, bias or ill will as shown by the evidence of record[.]”

Ottolini v. Barrett, 954 A.2d 610, 612 (Pa.Super. 2008).

       The majority provides three bases to affirm the court’s decision to

discount Dr. Esteves’s recommendation and forego ordering a complete child

custody evaluation: (1) custody evaluations are not mandatory; (2) this case

is distinguishable from precedent where we concluded that an evaluation was

warranted; and (3) “a full custody evaluation might result in increasing the

already rampant animosity between the parties.” Majority Opinion at 9. As I

explain in detail infra, none of these grounds defeats Father’s claim that the

court abused its discretion in ignoring the obvious need for a comprehensive

custody evaluation and by rejecting his several entreaties for the court to

order it.



____________________________________________


       (a)    The court may order the child or a party to submit to an
              evaluation by an appropriate expert or experts. The order
              may be made upon the courts own motion or on motion of
              a party with reasonable notice to the person to be
              examined, and shall specify the place, manner, conditions
              and scope of the examination and the person or persons by
              whom it is to be made.

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      I frame    my perspective      of the    majority’s   position   with   three

countervailing points, which I outline at the outset and develop seriatim infra.

First, while custody evaluations are not mandatory, they are invaluable, and

it is beyond peradventure that it serves a child’s best interests to perform a

comprehensive review of all of the relevant circumstances prior to rendering

a custody decision. Next, notwithstanding the majority’s protestations to the

contrary, this appeal aligns with the facts of Johns v. Cioci, 865 A.2d 931

(Pa.Super. 2004), wherein we vacated a custody order and remanded the case

with directions for the trial court to order a full custody evaluation. Finally, to

the extent that the trial court invoked the parental conflict as a reason to

forego the custody evaluation, the record bears out that the enmity between

Mother and Father is so severe that it will continue to permeate these

proceedings regardless of the court’s protective measure. Stated plainly, the

animosity between Mother and Father could not help but filter down to J.M.

In my view, attempting to shield J.M. from the all-consuming discord between

Mother and Father is futile. It is clear that J.M.’s interests would be better

served if the court confronted the obstructive parental conflict, utilized a

comprehensive custody evaluation to expose the source of the dissonance,

and eradicated it.

      Although Rule 1915.8(a) does not mandate a custody evaluation in

every case, the rule’s explanatory comment recognizes that custody

evaluations are among the class of evidence that “have served as a means to

provide the court with a full and complete record[.]”           Pa.R.C.P. 1915.8

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Explanatory Cmt.—2007. The polestar of child custody law is to serve the

best interests of the child. C.G. v. J.H., 193 A.3d 891, 909 (Pa. 2018) (“The

paramount concern in child custody cases is the best interests of the child.”).

The   esteemed Joanne     Ross Wilder      articulated   the   importance   of   a

comprehensive review in this situation as follows, “Custody determinations

are so important that the trial court is expected to play an active role in

creating a thorough and complete record.” Wilder, Pa. Family Law Prac. and

Proc. (5th ed.), § 28-5 (footnote omitted). Indeed, “[o]f all cases presented

to the courts, none is considered more important than the determination of

the custody of children.”       Ashford v. Ashford, 576 A.2d 1076, 1079

(Pa.Super. 1990). Thus, custody hearings must be “full and comprehensive

and all witnesses be heard who can contribute to that understanding[.]” Id.

at 1080. In this vein, I highlight Attorney Wilder’s valued sentiments, “the

purpose of a psychological evaluation in a custody case is to assess the best

psychological interest of the child, focusing upon parenting capacity, the

psychological and developmental needs of the child, and the resulting fit.”

Wilder, supra at § 28-5 (footnote omitted). Stated another way, a custody

evaluation exposes truths that are essential to the creation of a full and

complete record.    Accordingly, while the majority’s statement of law is

accurate insofar as a custody evaluation is not mandatory under Rule

1915.8(a), the fact that the evaluation was not compulsory does not negate

the reality that it was necessary for the court to be fully informed on the

nuanced aspects of this case.

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     We addressed a similar situation in Johns, supra, and after finding that

the certified record did not support the court’s award of primary physical

custody to Father, this Court vacated the award and remanded the case for a

comprehensive custody evaluation prior to the new custody hearing. Johns

involved a custody dispute concerning a twelve-year-old child of divorced

parents whose “relationship has been characterized by poor communication,

frequent disagreements, and numerous court appearances.” Id. at 934. As

part of the ongoing, contentious litigation, the father requested a custody

evaluation, but the trial court ruled that a thorough custody evaluation was

unnecessary.   Instead, the court-appointed expert performed a limited

psychological evaluation on the mother and father. Although the trial court

communicated with the expert, neither party presented the expert to testify

during the ensuing custody hearing. The custody court awarded the father

primary custody, and the mother appealed. Id. at 935.

     On appeal, this Court remanded the matter and directed the parties to

undergo a comprehensive custody evaluation. In ordering the evaluation, we

stated:

     Both parties love their daughter, have the ability and desire to
     provide for her well-being, and give high priority to her welfare.
     While we recognize that the child has flourished with Mother as
     primary caretaker, we are nonetheless concerned about the many
     examples of Mother’s manipulative behavior and her failure to
     encourage the loving relationship that the child has with Father.

Id. at 945.




                                   -5-
J-A27035-18



     As explained, below, I believe that the Johns Court’s rationale compels

that we remand this appeal for a thorough custody evaluation. I begin with a

brief primer on this close case between combative parents with an enduring

mistrust of one another. Neither parent’s behavior is beyond reproach, and

the certified record is replete with examples of their pugnacity.   Mother is

adverse to any form of cooperative parenting, and complains that Father is

innately chauvinistic due to his foreign culture, unable to provide adequate

care or supervision, and litigious, having initiated the current custody

modification proceeding months after the trial court entered a final custody

order.   Father counters that Mother intentionally interferes with his

relationship with J.M. and purposely distracted J.M. during his interactions

with Father on the telephone, Skype, and FaceTime. Meanwhile, eight-year

old J.M. is suffering from the discord.    Indeed, based upon his limited

psychological evaluation of J.M., Dr. Esteve determined that, while J.M.

appears healthy, the child has shouldered a degree of responsibility for the

parental dissonance and assumed some responsibility for correcting it.

     Father initiated the latest chapter of the custody dispute in December

2016, when he filed a petition to modify the existing custody order. Father

argued that the court-ordered custody arrangement allotting him biweekly

physical custody between Wednesday afternoon and Sunday evening created

a ten-day lapse in any physical contact with his son.      Furthermore, he

complained that Mother refused to facilitate the court-ordered telephone

contact with J.M. during his noncustodial periods. Father requested that the

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J-A27035-18



trial court order specific dates and times for his telephone contact, or

alternatively, permit dinner visits during the noncustodial week.       Mother

responded with a petition for modification that sought to further reduce

Father’s biweekly period of overnight custody from the five days (Wednesday-

Sunday) to two (Friday-Sunday).

      Following a custody conference, the trial court entered an interim order

directing the parties to consult with J.M.’s therapist, Deb Stoner, to address

J.M.’s apparent reluctance to speak with Father on the telephone while the

child was in Mother’s physical custody.     Specifically, the order read, “Ms.

Stoner is requested to assist the parties in resolving their differences

regarding telephone and/or FaceTime/Skype contact between the minor child

and Father.” Trial Court Opinion, 1/23/17, at 2. However, on March 29, 2017,

the custody court entered an interim order that changed J.M.’s counselor from

Deb Stoner to Andrea Nation, “the counselor identified by Mother as having

insurance   coverage,”   and   directed   that   the   counselor   address   the

“telephone/FaceTime/Skype” issue and oversee telephone communication

during at least one session per week. Trial Court Opinion, 3/29/17, at 1-3.

The interim order allowed Father to verify Ms. Nation’s qualifications, confirm

insurance coverage, and determine whether he would agree to utilize Ms.

Nation’s services in lieu of one of the counselors recommended by Ms. Stoner.

      Meanwhile, in anticipation of the custody hearing, Father requested a

comprehensive custody evaluation. Following argument on Father’s petition,

the trial court declined Father’s request for a custody evaluation but permitted

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J-A27035-18



Father to obtain a psychological evaluation of J.M., which Dr. Esteve

completed on January 6, 2018.

      During trial, Dr. Esteve testified that he was appointed to perform a

psychological evaluation of J.M., which he described as “an assessment of the

nature of his relationship with both parents.”    N.T., 2/12/18, at 48.    He

presumed that the court’s purpose for the evaluation “was to determine if, at

all, there is any consequence to the [parental] conflict, and obviously,

litigation between these parents on the development of this child.” Id. at 55.

Stated plainly, Dr. Esteve, was “interested in how the child functions”

emotionally. Id. at 56.

      In performing the evaluation, Dr. Esteve interviewed both parents,

administered a parenting stress index, which measured the parental

perceptions of Mother and Father, and conducted interactional evaluations of

J.M. with each parent. Notably, J.M. “is exquisitely aware” of the parental

conflict, which neither parent has taken responsibility for escalating. Id. at

66, 76. Indeed, Dr. Esteve observed that the then-seven-year-old child was

the only member of the family that has made any accommodations. Id. at

67. He advised the court that where, as here, the enmity between parents is

obvious, a significant component of the interactional evaluation is to observe

“how comfortable the child is to discuss the other parent and in that parent’s

presence.” Id. at 57.




                                    -8-
J-A27035-18


      In this vein, Dr. Esteve testified that J.M. was more reserved during his

interactional with Mother than his meeting with Father. Id. at 59. Specifically,

during his interactional with Father, J.M. was extremely sociable, open,

affectionate, and freely spoke of Mother. Id. at 56-57. Dr. Esteve perceived

a loving interaction between Father and J.M., and noted that the two share “a

very strong bond.” Id. at 64. Tellingly, Dr. Estevez testified that his actual

observations of Father with J.M. belied Mother’s characterization of Father as

historically unaffectionate toward their son. Id. at 64.

      In contrast, J.M. was “substantially different” during the subsequent

interactional with Mother. Id. at 58. The child initially refused to interact with

Dr. Esteve. Id. at 59. Thereafter, he was defiant with Mother, snubbed her

attempts to redirect his attention to the card game that they had started, and

engaged in negative attention seeking-behavior. Id. at 59-60. In addition,

unlike the openness he displayed toward the absent parent during the

interview with Father, J.M. neglected to mention Father in Mother’s presence.

Id. at 60.

      As I previously indicated, Mother opposes cooperative parenting.

Instead, she endorses parallel parenting, an absolutist approach that shuns

communication and coordination between parents.          Dr. Esteve stated that

parallel parenting, where each parent makes decisions for the child

independently, is incompatible with the fundamental principle that parental

harmony and cooperation are essential to ensuring a child’s mental health.


                                      -9-
J-A27035-18


He explained, “the most potentially damaging or traumatic experience for a

child is unresolved chronic conflict between his parents.” Id. at 67. Dr. Esteve

continued, “it is profoundly important to know that both . . . parents are

communicating with each other[.]” Id. at 68. Unfortunately, seemingly blind

to the crisis’s effect on J.M., Mother believes that any expectation of co-

parenting “disrespect[s]” the reality that Mother and Father have a damaged

relationship that is beyond repair. Id. at 66.

      Ultimately, Dr. Esteve rendered three recommendations: (1) counseling

to help J.M. understand that he is neither the cause of the parental strife nor

responsible for resolving it; (2) parental counseling, despite Mother’s overt

aversion to participation, to reduce the risk of harm that the conflict poses to

J.M.; and (3) a thorough custody evaluation.       As it relates to the custody

evaluation, Dr. Esteve explained,

      I know that they went through an evaluation already but
      conducting a full evaluation [is recommended.] And the reason I
      say that is the possibility . . . that [it] . . . might add more
      information [for] the Court. I wasn’t asking the parents to criticize
      the other parent. I wasn’t asking them for a lot of detail about
      the other parent nor was I asking them for a lot of detail about
      themselves.

             Hence, I can’t make custody recommendations, but they
      both clearly were highly motivated to tell me what their express
      concerns are, valid or not, about the other parent. That’s what it
      becomes then. It’s about the other parent or their problems in
      their relationship with the other parent. The only way I can opine
      about that is to . . . spend the time with both of them and go
      through the procedures that I would need to go through with both
      of them. Otherwise, I can’t express a direct opinion about that.
      That’s why th[e] recommendation [for a custody evaluation] is
      there.

                                     - 10 -
J-A27035-18



Id. at 69-70.

       In   order    to   provide     the      court   with   a   meaningful    custody

recommendation, Dr. Esteve needed to perform a detailed examination of the

parental conflict, the nature of the countervailing assertions, and their effect

on J.M. This aspect of Dr. Esteve’s recommendation echoes the bedrock tenet

of breadth of record that Attorney Wilder articulated in her treatise, and that

resonated with this Court in Ashford, supra, wherein we remanded a custody

appeal for further proceedings “because of the requirement that all custody

hearings be full and comprehensive and all witnesses be heard who can

contribute to th[e] understanding [of a child’s best interest].”               Ashford,

supra at 1080, 1081 (“We are not prepared to reverse the Order of the trial

court but are not of the opinion that the record is adequate to support the trial

court’s decision[.]”).

       As noted supra, the court rejected this component of Dr. Esteve’s

recommendation, awarded Mother primary physical custody of J.M., and

effectively reduced Father’s custodial period by one day.2 In explaining its

basis for declining to order a comprehensive custody evaluation, the trial court

invoked the seven-year-old’s desire to maintain the status quo, and the court’s

____________________________________________


2 While the prior custody order awarded Father partial physical custody on
alternating weeks between Wednesday afternoon and Sunday evening, the
current order provides the biweekly custody between Thursday afternoon and
Monday morning during the school year. Thus, unless the Monday falls on a
day when school is not scheduled and the day is not one of Mother’s
predetermined holidays, Father’s time with J.M. is effectively reduced by one
day per custodial period.

                                            - 11 -
J-A27035-18



wish to avoid aggravating the parental conflict. While my learned colleagues

adopt the court’s positions, I respectfully disagree.

         As highlighted by Dr. Esteve’s foregoing testimony, the stress

associated with the intense hostility between Mother and Father is a threat to

J.M.’s emotional well-being. In light of this persistent dissension, which, at

Mother’s directive, the parents have neglected to resolve through counseling,

I believe that the trial court erred in failing to order a comprehensive custody

evaluation that would have provided all of the information necessary to

evaluate the entanglement of issues involved in this case.

         Instantly, the custody court conducted a rote application of the custody

factors outlined in 23 Pa.C.S. § 5328(a) and fashioned an award in Mother’s

favor.     In rejecting Father’s claims on appeal, the majority engages in an

equally limited analysis, at least as it relates to Father’s complaints regarding

the trial court’s failure to order a comprehensive custody evaluation.

         This Court has stated that, “All of the factors listed in section 5328(a)

are required to be considered by the trial court when entering a custody

order.” J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa.Super. 2011) (cleaned up).

Instantly, the trial court determined that one-half of the factors, i.e., two, five,

six, eight, nine, thirteen, fourteen, and fifteen, were either neutral or

inapplicable to the facts of this case. Of the remaining factors, all but two

militated “slightly in favor of [Mother]” Trial Court Order, 3/15/18, at 1-5.

Specifically, the court found that factors eleven and twelve, relating to the


                                       - 12 -
J-A27035-18


proximity of the residences and the availability of child care, respectively,

weighed in Mother’s favor without qualification. Id. at 6.          From my

perspective, in electing to forego a comprehensive custody evaluation, the

trial court eschewed the essential resource that would have aided it in

considering the statutory factors that the court determined where nearly equal

but favored Mother ever so slightly.          Without the assistance of a

comprehensive custody evaluation, the court was required to employ

mechanical decision making, when the facts demanded a contextual

examination of the entire case.

      One example where a custody evaluation would have been beneficial to

the court relates to its review of Father’s interactions with Ms. Nation.    A

significant component of the trial court’s custody analysis centers on the fact

that Father temporarily stopped taking J.M. to counseling with Ms. Nation

between September and November 2017. I start by recalling two important

points of reference.    First, Father consistently transported J.M. to the

counseling sessions between April 2017 and immediately before Ms. Nation’s

September communiqué advising him of her unilateral decision to terminate

the court-ordered focus of the counseling. Second, Father reinitiated J.M.’s

treatment with Ms. Nation during December 2017, when it became evident

that Mother had weaponized his reaction to the reworked counseling sessions

and sought to use it against him during the custody proceedings. Mother’s

maneuver proved fruitful, and Father’s interactions with Ms. Nation during this


                                    - 13 -
J-A27035-18


period framed the trial court’s custody determination to the degree that it

referenced Father’s behavior throughout its order and opinion and invoked it

specifically in analyzing two of the factors that militated in Mother’s favor.

      However, I believe that a review of this situation through the prism of a

comprehensive custody evaluation would demonstrate that the court’s overt

disapproval of Father’s conduct is misplaced. In point of fact, Father’s motives

were valid insofar as the presumably neutral counselor, Ms. Nation, was

hesitant to meet Father in person and she unilaterally decided to ignore the

court-ordered focus of the counseling sessions, i.e., J.M.’s reluctance to

engage Father on the telephone while in Mother’s custody.           Moreover, the

record bears out that Father maintained contact with the counselor during the

three-month hiatus, and most importantly, that Ms. Nation did not view

Father’s lull as problematic.

      A comprehensive custody evaluation would have flushed out the fact

that this seemingly hotly-contested issue between Mother and Father that

contributed the court’s custody analysis was, in reality, trivial in its relation to

J.M.’s best interest.     However, without the assistance of the custody

evaluation, the trial court neglected the foregoing circumstances and

considered Father’s hesitation to continue with the then-unsanctioned focus

of counseling as evidence that Mother not only was the parent more likely to

encourage contact with the other party, but also was the person who

performed the parental duties.


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J-A27035-18


      Furthermore, notwithstanding the majority’s protestations to the

contrary, the case at bar is strikingly similar to the facts underlying Johns.

There is an extended history of litigation, Father’s concerns about Mother’s

interference with his telephone contact with J.M. have persisted throughout

the custody dispute, and although Father twice requested a comprehensive

custody evaluation to address this component of the case, the trial court only

permitted Dr. Esteve to perform a psychological evaluation of the child. When

Father renewed his request for a comprehensive evaluation, the court deferred

its ruling until further testimony was received at trial, and subsequently denied

the entreaty outright.

      Both Johns and the case at bar involve unduly combative parents whose

intense hostility placed their child at risk. While the twelve-year old child in

Johns vented her emotions overtly, and J.M.’s expressions are internal, in

both instances, the trial court recognized the need for counseling to assist the

children in dealing with the mutual enmity between their respective parents.

Moreover, while the majority attempts to distinguish the Johns decision based

upon the fact that the mother had filed a petition to relocate, that fact was

irrelevant to our determination concerning the need for a thorough custody

evaluation. Indeed, this Court specifically affirmed the custody court order

that denied the mother’s petition for relocation. See Johns, supra at 939

(“In light of all of the above factors, we affirm the trial court’s conclusion that

Mother did not meet her burden of proof with regard to the first prong of [the


                                      - 15 -
J-A27035-18


relocation considerations].”).   Nevertheless, in reaching the separate issue

concerning the effect of an award of primary physical custody on a child who

is at risk emotionally, the issue which aligns precisely with the case at bar, we

reasoned “the trial judge found the problems sufficiently severe to agree that

immediate counseling for the child was needed. Given the instability that this

child has experienced and her apparently difficult adjustment, we believe a

full custody evaluation is necessary.”    Id. at 945.   In light of our express

concern with the child’s stability and difficulty adjusting, issues that

reverberate in this case with J.M., I am not persuaded by the majority’s

attempt to fashion a ground to avoid the application of the Johns Court’s

rationale herein.

      Similarly, the trial court’s preoccupation with potentially increasing the

animosity is misplaced. I recognize that J.M. noted a desire to maintain the

status quo and informed the court that he did not want to talk to Father on

the telephone while in Mother’s physical custody. While the trial court, and

by extension the majority, accept the child’s statements at face value, I

believe that a thorough custody evaluation is necessary to penetrate the

child’s response and reveal his true motivations. Mindful of Father’s assertion

that Mother commonly interferes with the father-son relationship, it is

possible, if not probable, that J.M.’s reluctance to speak with Father in this

circumstance is a product of Mother’s control rather than J.M.’s independent

aversion to increased contact.    Indeed, even in rejecting a comprehensive


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J-A27035-18


custody evaluation, the trial court recognized, “something deeper is going on

with the child that he did not want to spend more time with his father and did

not want to call him during his mother’s custody periods.” Trial Court Opinion,

6/29/18, at 11. However, instead of confronting this situation directly and

permitting Dr. Esteve to perform a custody evaluation to investigate the

“deeper” issue that the court clearly identified, the court simply rejected

Father’s assertions of parental interference and relied upon the child’s stated

preference as a basis to decline further inquiry. Id. at 11-12. In my view,

this was reversible error.3

       Finally, the trial court cites the parental discord as a basis to maintain

the status quo and forego the custody evaluation. However, attempting to

shield J.M. from parental conflict by limiting his physical and telephone contact

with Father is a defective prophylactic because it not only impedes the

development of the beneficial bond between J.M., but also rewards Mother for

her obstinate refusal to engage in counseling and does an end run around the


____________________________________________


3 Ironically, while the trial court noted that J.M. would have to “address certain
issues related to his father in therapy,” the court not only endorsed Mother’s
selection of Ms. Nation, a therapist who expressly refused to address this
precise issue, but it also criticized Father for challenging Ms. Nation’s decision
to circumvent the court-ordered focus of therapy and then faulted Father for
protesting that decision, as if Father’s post-hoc protest was the reason that
Ms. Nation altered the therapy in the first place. Trial Court Opinion, 6/29/18,
at 11-12; see also Trial Court Order, 4/15/18, at 2 (“[J.M.’s] adamant refusal
to speak to [Father] over the telephone . . . was to be the subject of counseling
with Andrea Nation, LCSW, but [Father] stopped taking the child for
approximately four months.”). The temporal fallacy of the court’s rational is
obvious.

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fundamental issue in the custody dispute, i.e., how the conflict inhibits the

child’s best interest. Unlike the trial court, and by extension the majority, I

believe that the court’s hesitation to confront the essential issue because it is

unpleasant resulted in a disservice to the child. Rather than simply yielding

to the animosity raging between the parents as an encumbrance to achieving

J.M.’s best interest, the court could, but consistently declines to, order the

parties to engage in parental counseling, a remedy that Mother continues to

oppose.

      Thus, despite acknowledging the benefits of a comprehensive custody

evaluation, the trial court declined to order it. As the court did not have the

necessary information to evaluate all of the issues in this case, I believe the

court abused its discretion in refusing to order the recommended custody

evaluation.   Accordingly, I would vacate the trial court’s March 15, 2018

custody order awarding Mother primary physical custody, and consistent with

Johns, supra, remand this matter to the trial court for the preparation of a

comprehensive     custody   evaluation   that   comports    with   Dr.   Esteve’s

recommendation.




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