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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.
J. A24037/18

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


                                    -2-
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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.



                                    -3-
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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


                                   -4-
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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.


                                   -5-
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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.




                                    -6-
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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


                                       -7-
J. A24037/18


                   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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J. A24037/18

     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


                                         -9-
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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.



                                   - 10 -
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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


                                  - 11 -
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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.


                                       - 12 -
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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.



                                  - 17 -
J. A24037/18

“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).


                                   - 18 -
J. A24037/18

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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J. A24037/18

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).


                                    - 20 -
J. A24037/18

      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.



                                     - 21 -
J. A24037/18

      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.)


                                     - 22 -
J. A24037/18

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



                                     - 23 -
J. A24037/18

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.)



                                     - 24 -
J. A24037/18

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



                                     - 25 -
J. A24037/18

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



                                       - 26 -
J. A24037/18

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).


                                     - 27 -
J. A24037/18

      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.)



                                     - 28 -
J. A24037/18

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



                                      - 29 -
J. A24037/18

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.




                                     - 30 -
J. A24037/18

      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




                                    - 31 -
