J-S33016-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    T.L.C.                                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    J.W.K.                                     :
                                               :
                       Appellant               :   No. 585 EDA 2020

                Appeal from the Order Entered January 13, 2020
     In the Court of Common Pleas of Lehigh County Civil Division at No(s):
                              No. 2011-FC-1433


BEFORE:      DUBOW, J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY MURRAY, J.:                              FILED AUGUST 14, 2020

        J.W.K. (Father) appeals from the order granting T.L.C.’s (Mother)

petition to modify the existing custody order, and awarding her sole legal

custody with respect to their daughter, O.K., born in March 2002; son, J.K.,

born in November 2003; daughter, G.K., born in December 2007; and son,

N.K., born in February 2010 (collectively, Children). The order further grants

the parties shared physical custody as they may agree. In the absence of an

agreement, the order grants Mother primary physical custody and Father




____________________________________________


*   Former Justice specially assigned to the Superior Court.
J-S33016-20


partial physical custody on alternating weekends and one evening every

week.1 Upon careful review, we affirm.

       This case commenced in November 2011, when Mother filed a divorce

and custody action against Father. By consent order dated January 6, 2012

(original order), Mother and Father were granted shared legal and equally

shared physical custody of the Children on an alternating weekly basis with

the non-custodial parent having a dinner visit. For approximately five years,

Mother and Father maintained equally shared physical custody of the Children

while modifications were made to the original order in other ways, such as

directing the parties to participate in co-parent counseling. Order, 3/13/14.

       Father, who is a dentist, continued to reside in the former marital home

in Coopersburg, Lehigh County, which is located in the Southern Lehigh School

District.   Trial Court Opinion, 1/13/20, at 3.   The Children, each of whom

began parochial school in kindergarten, continued to attend the same school.

Id.

       In 2015, Mother married F.C. (Stepfather).         Trial Court Opinion,

1/13/20, at 3. The record reveals that Mother and Stepfather rented a home



____________________________________________


1 The trial court states that the order arises from the parties’ cross-petitions
to modify the existing custody order filed in November 2018, as well as their
cross-petitions for contempt filed in July 2018. Order, 1/13/20, at 1.
However, the order on appeal does not dispose of the petitions for contempt.
Indeed, during the relevant proceedings, the parties did not testify regarding
their respective contempt petitions.


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in Allentown, Lehigh County, until 2016, when they purchased a home in the

Parkland School District, due to O.K., the oldest child, desiring to attend

Parkland High School. Id. at 3-4.

      On August 1, 2016, Mother and Father agreed to modify their custody

schedule with respect to O.K. during the school year only. The order granted

custody to Mother every Monday and Tuesday overnight and Father every

Wednesday and Thursday overnight, and the parties alternating weekends of

custody during the school year.

      After attending Parkland High School for one year, O.K. informed Mother

that she wanted to attend Southern Lehigh High School, and that she wanted

to live with Father. Id. at 5-6.    By August 1, 2017, “O.K. went to Father’s

house and has not returned to Mother’s house except for short-term visits.”

Id. at 6.

      On November 9, 2017, following cross-petitions for modification of the

existing custody order with respect to O.K. and by consent of the parties, the

court granted Father primary physical custody of O.K. The court also granted

Mother partial physical custody of O.K., as she and O.K. may agree, during

those alternating weeks when she had physical custody of J.K., G.K., and N.K.

      Thereafter, by consent order dated June 14, 2018, the court directed

“that commencing September 2018, all four children would attend school




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within the Southern Lehigh School District. . . .”2 Trial Court Opinion, 1/13/20,

at 8. As such, in the fall of 2018, Mother and Stepfather sold their house and

purchased a home in Coopersburg in the Southern Lehigh School District. Id.

at 9.

        In October 2018, J.K., who then was attending Southern Lehigh High

School, told Mother that “O.K. was coming to pick him up because he has

something important to discuss with Father. J.K. left Mother’s house without

her consent and has not returned to live there.” Id. at 9-10.

        On November 8, 2018, Mother filed a petition for special relief and

petition for modification, wherein she requested that J.K. be immediately

returned to her, and that she be granted primary physical custody of the

Children.    Mother alleged that Father has a long pattern of attempting to

alienate O.K. and J.K. from her, and that he will attempt and be successful in

doing the same with G.K. and N.K. Id. at 10. On November 9, 2018, Father

filed a petition for modification of the existing custody order wherein he

requested primary physical custody of J.K.3

____________________________________________


2 The order also appointed Dr. Jane Tyler Ward as a family counselor and
directed Father and Mother to contact Dr. Ward within ten days of the entry
of the order. Order, 6/14/18, ¶ 2.

3By interim order dated December 3, 2018, the court directed the parties to
share physical custody of J.K., G.K., and N.K. on an alternating weekly basis.
The interim order granted Father primary physical custody of O.K., and Mother
partial physical custody on those weeks when she had physical custody of the
other children, as she and O.K. may agree. Finally, the interim order directed



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       The hearing on the petitions occurred on November 7, 8, and 15, 2019,

and December 2, 2019. The trial court interviewed the Children in camera

and, upon agreement of the parties, without the presence of counsel. N.T.,

11/7/19, at 256.

       During the hearing, Mother requested sole legal and primary physical

custody of the younger children, G.K. and N.K. N.T., 11/7/19, at 134-35.

Mother requested that Father have supervised physical custody of G.K. and

N.K. on alternating weekends. Id. at 135. In addition, Mother presented the

testimony of Stepfather and Ronald J. Esteve, Ph.D., a clinical psychologist

who was appointed by the court to conduct a psychological and custody

evaluation. Father requested to continue shared legal and physical custody

of G.K. and N.K. on an alternating weekly basis. Id. at 222-23. In addition,

Father presented the testimony of Robert M. Gordon, Ph.D., a psychologist

whom he retained to critique Dr. Esteve’s evaluation.

       On July 13, 2020, the court granted Mother sole legal custody of the

Children.    The court granted Mother and Father physical custody of the

Children as they

       may agree or, in the absence of such agreement, then Mother
       shall exercise primary physical custody of the [C]hildren and
       Father shall exercise partial physical custody of the [C]hildren as
       follows:
____________________________________________


the parties to resume counseling with Dr. Ward, especially with respect to
repairing the relationship between Mother and J.K. Trial Court Opinion,
1/13/20, at 10.


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           a.)     on alternate weekends from Friday after school or,
           if no school, then from 6:00 p.m. until Sunday at 7:00
           p.m., and

           b.)      one evening each week from after school or, if no
           school, from 5:00 p.m. until 8:00 p.m.

Order, 1/13/20, ¶ 2.

       Further, the order set forth a holiday custody schedule and granted each

parent two non-consecutive one-week periods each year for vacation. Id. at

¶ 14. In addition, the order provided:

       13. [A supplemental order completing this paragraph will be
       issued when the court has secured the commitment from the
       appropriate individuals to provide counseling/therapy as
       addressed in the Memorandum Opinion filed concurrently with this
       order.]

Order, 1/13/20, ¶ 13.4 Father timely filed a notice of appeal.5

       Father presents three issues for our review:




____________________________________________


4 In its memorandum opinion, the trial court stated, “The two oldest children
need reunification counseling with Mother. Father needs counseling to help
him understand the consequences of his inappropriate behaviors and to
manage his anger. Mother needs counseling to help with her self-esteem and
potential suicidal ideation.” Trial Court Opinion, 1/13/20, at 22-23. Upon
review, no supplemental order exists in the certified record with respect to ¶
13, supra.

5 Father did not file a concise statement of errors complained of on appeal
concurrently with his notice of appeal in contravention of Pa.R.A.P.
1925(a)(2)(i) and (b). Because Mother does not claim prejudice as a result
of Father’s procedural violation, and we discern none, we will not quash or
dismiss his appeal. See In re K.T.E.L., 983 A.2d 745 (Pa. Super. 2009).


                                           -6-
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      A.    Whether the trial court further erred in accepting the expert
      testimony of Dr. Ronald Esteve and rejecting the testimony of Dr.
      Robert Gordon[?]

      B.    Whether the [trial] court erred in awarding Mother sole legal
      custody of the . . . [C]hildren[?]

      C.    Whether the [trial] court erred in awarding Mother primary
      physical custody of the . . . [C]hildren[?]

Father’s brief at 16 (reordered for ease of discussion).

      We review Father’s issues according to the following scope and standard

of review:

         [T]he appellate court is not bound by the deductions or
         inferences made by the trial court from its findings of fact,
         nor must the reviewing court accept a finding that has no
         competent evidence to support it. . . . However, this broad
         scope of review does not vest in the reviewing court the
         duty or the privilege of making its own independent
         determination. . . . Thus, an appellate court is empowered
         to determine whether the trial court’s incontrovertible
         factual findings support its factual conclusions, but it may
         not interfere with those conclusions unless they are
         unreasonable in view of the trial court’s factual findings;
         and thus, represent a gross abuse of discretion.

      R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa. Super. 2009)
      (quoting Bovard v. Baker, 775 A.2d 835, 838 (Pa. Super.
      2001)). Moreover,

         [O]n issues of credibility and weight of the evidence, we
         defer to the findings of the trial [court] who has had the
         opportunity to observe the proceedings and demeanor of
         the witnesses.

         The parties cannot dictate the amount of weight the trial
         court places on evidence. Rather, the paramount concern
         of the trial court is the best interest of the child. Appellate
         interference is unwarranted if the trial court’s consideration
         of the best interest of the child was careful and thorough,
         and we are unable to find any abuse of discretion.

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J-S33016-20



         R.M.G., Jr., supra at 1237 (internal citations omitted). The test
         is whether the evidence of record supports the trial court’s
         conclusions. Ketterer v. Seifert, 902 A.2d 533, 539 (Pa. Super.
         2006).

A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014). In addition,

         [T]he discretion that a trial court employs in custody matters
         should be accorded the utmost respect, given the special nature
         of the proceeding and the lasting impact the result will have on
         the lives of the parties concerned. Indeed, the knowledge gained
         by a trial court in observing witnesses in a custody proceeding
         cannot adequately be imparted to an appellate court by a printed
         record.

Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (quoting Jackson

v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)).

         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 that legitimately have an effect upon the child’s physical,

intellectual, moral, and spiritual well[-]being.” Saintz v. Rinker, 902 A.2d

509, 512 (Pa. Super. 2006), citing Arnold v. Arnold, 847 A.2d 674, 677 (Pa.

Super. 2004).

         Child custody actions are governed by the Child Custody Act (“Act”), 23

Pa.C.S.A. §§ 5321-5340. The Act provides that, after considering the best

interest factors set forth in Section 5328(a), the trial court “may award” any

of the following seven types of custody that it determines is in the best interest

of the child: primary physical custody, partial physical custody, sole physical




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custody, supervised physical custody, shared legal custody, and sole legal

custody. 23 Pa.C.S.A. § 5323(a).

      Trial courts are required to consider “[a]ll of the factors listed in

[S]ection 5328(a) . . . when entering a custody order.” J.R.M. v. J.E.A., 33

A.3d 647, 652 (Pa. Super. 2011) (emphasis in original); see also A.V., 87

A.3d at 823 (citation omitted) (providing that trial courts shall set forth the

mandatory assessment of the Section 5328(a) best interest factors “prior to

the deadline by which a litigant must file a notice of appeal”). This statutory

Section provides 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
          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)(1) and
          (2) (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.

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            (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.

            (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).




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       Instantly, the trial court set forth its assessment of the Section 5328(a)

best interest factors in its opinion accompanying the subject order. The trial

court weighed the following factors in Mother’s favor: subsections (1), (2),

(4), (8), (9), (10), (12), and (13). The court weighed none of the factors in

Father’s favor. The court weighed subsections (3) and (5) equally between

the parties, and found subsections (2.1), (11) and (14) inapplicable in this

case.6, 7

       The court found determinative subsection (1), which party is more likely

to encourage and permit frequent and continuing contact between the child

and another party, stating “Neither party comes before the court with ‘clean

hands,’ although Mother’s transgressions are comparatively less serious and

less sinister th[a]n Father’s transgressions.” Id. at 17. The court explained

that Father has a

       long history of undermining and denigrating Mother, and
       manipulating the [C]hildren, [which] has only aided, abetted, and
       encouraged the two oldest children from not wanting to spend
____________________________________________


6 With respect to subsection (6), the Children’s sibling relationships, the court
found, “They are very close and get along well with each other. The two
youngest children look up to and miss their two older siblings; the two oldest
children say they miss their two youngest siblings.” Trial Court Opinion,
1/13/20, at 20. With respect to subsection (7), the well-reasoned preferences
of the Children, based on their maturity and judgment, the court found, “While
the [C]hildren’s testimony was insightful and telling, it was not determinative
of any issue. Their testimony merely corroborated other evidence.” Id.

7With respect to subsection (15), the mental and physical condition of a party
or a member of the party’s household, the court found that Mother, Father,
and the Children need counseling, as set forth above. See n. 4, supra.


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     time with Mother even though the [interim] order requires it.
     Father has a problem managing his anger. He yells at the
     [C]hildren and uses inappropriate language in front of them,
     especially when he refers to Mother.

                              *     *        *

     Furthermore, Father stated each child after the age of 15 ½ years
     should be able to decide for himself/herself whether to spend
     more time or less time with either parent[,] and that [the
     C]hildren should go into therapy if they thought they needed it.
     His is a rather cavalier attitude after [he] has poisoned their view
     of Mother, blamed her for his limitations and seduced them with
     a “secret cell phone,” a car[,] and financial assistance for college.

Id. at 17-18; see also N.T., 11/7/19, at 83-85; 120-22.

     The court also found determinative subsection (8), the attempts of the

parent to turn the child against the other parent. The court found, “Father

has effectively turned the two oldest children, O.K. and J.K., against Mother

for no apparent reason other than being vindictive because of the breakup of

the marriage and a resultant obligation to pay child support.”      Trial Court

Opinion, 1/13/20, at 20. For example, the court concluded, “The only purpose

of Father telling N.K. that he urinated on Mother’s house because he was angry

with her could have been to portray Mother in a negative light and disrespect

her. Clearly, it was an attempt to manipulate the child to turn him away from

Mother.” Id. at 21; see also N.T., 11/7/19, at 121-122 (Mother testified,

“[N.K.] came in and was kind of giggling that daddy told him a secret. Later

on in the evening, he mentioned what the secret was. It was that [Father]

had urinated on the side of our house and not to tell mommy. So I looked at

our [security] camera[,] and he did.”).

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      Finally, the court found determinative subsection (13), the level of

conflict between the parties and their willingness and ability to cooperate with

one another. The court stated:

      Mother testified there is . . . chronic conflict between her and
      Father which has not improved over time. She characterized the
      level of conflict between them as high. Father described the level
      of conflict between them as “medium at most.” In fact, the level
      of conflict between the parties is high. Father has fueled the
      conflict by undermining and denigrating Mother and blaming her
      directly to[,] or within the hearing of[,] the [C]hildren for his
      financial troubles. Father professes a willingness to cooperate
      with Mother, but he has little insight as to how insidious his
      behavior has been and how damaging it is to the [C]hildren and
      his credibility with Mother.

Trial Court Opinion, 1/13/20, at 22.

      In his first issue on appeal, Father asserts that the court abused its

discretion in accepting the testimony of the court-appointed expert, Dr. Ronald

J. Esteve, and not his expert, Dr. Robert Gordon. Specifically, Father argues

that Dr. Esteve’s testimony is not credible because “he denies Mother and

Father are in the same ballpark [regarding their personality problems] even

though the[i]r [MMPI-2] test scores were similar.”       Father’s brief at 48.

Further, Father contends that Dr. Esteve testified that he has concerns about

both parties, and that “the trial court’s dismissal of Mother’s issues and focus

upon Father’s issues is misplaced and not supported by the expert testimony.”

Id. at 48-49. In short, Father contends that Dr. Esteve’s report was biased

in favor of Mother. We disagree.




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      The trial court appointed Dr. Esteve in January 2019, to perform a

psychological and custody evaluation.         On August 16, 2019, Dr. Esteve

submitted a seventy-four page report to the court. See N.T., 11/15/19, at

Ex. P10.     In his report, Dr. Esteve explained that Mother and Father

participated in intensive, structured, and follow-up clinical interviews, and

they participated in psychological testing in the form of a “Quick View Social

History,” MMPI-2, and MMPI-2-RF. In addition, Dr. Esteve interviewed the

Children.

      Dr. Esteve testified on direct examination that Mother expressed in the

clinical interviews that she suffers distress regarding her relationship “with all

four of her children and their father.” N.T., 11/15/19, at 16. He explained

that Mother’s distress is due to believing that “all four of her children have

been impacted by the chronic and unresolved conflict between her and

[F]ather.   . . . [And] she believed [F]ather is behaving in ways that have

contributed to or damaged the [C]hildren as well as their relationship with

her.” Id. at 16-17. Dr. Esteve stated that Mother “self-reported a tendency

toward experiencing depressed mood. . . .” N.T., 11/15/19, at Ex. P10, at 29.




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       In his report, Dr. Esteve stated that Mother’s test results indicated that

she has “excessive anxiety and possibly obsessive behavior. . . . In other

circumstances the possibility of a paranoid disorder or paranoid personality

would be evaluated. However, her suspicions are based upon real events and

are not irrational or out of proportion.” Id. at 28-29. Mother tested high

regarding these areas, but Dr. Esteve opined that Mother’s “presentation

appears to be situational rather than characterological.”8, 9 Id. at 28.

       With respect to Father, Dr. Esteve testified Father told him “that he

believed that [Mother] was using the process to harass him or make things

difficult for him.” Id. at 40. Dr. Esteve testified on direct examination:

       Q. Did [Father] indicate to you his attitude towards [Mother]?

       A. Yes. Throughout my contact with [Father], he was very clear
       about his disregard for [Mother]. He volunteered, for example,
       that she lacked the mother gene[,] and I’m not quite sure what
       that means. Also, that he believes that she [is] very unsettled,
       that he believes that she is very unhappy. He also believed that
       she was just simply overreacting to different circumstances that
       might have resulted in conflict between the two of them.

       Q. During your interview with [Father], did he refer to my client
       as an a------?


____________________________________________


8 “By definition, characterological means long-standing, enduring, pervasive,
chronic. Situational means there’s a great deal of variance in the presentation
of whatever the particular signs are that I'm describing.” N.T., 12/2/19, at 5.

9 Dr. Esteve testified that Mother had one prior suicide attempt. N.T.,
11/15/19, at 26-27. On direct examination, he opined that Mother’s suicide
attempt “would play a role [in his evaluation], but it does not determine who
she is. It sounds to me like it was just a terrible dark moment for her.” N.T.,
11/15/19, at 27.

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       A. Yes.

N.T., 11/15/19, at 40.

       Dr. Esteve testified regarding Father’s responses to Mother’s allegations

during his clinical follow-up interview:

       Q. Now in the follow-up interview, would that be the time that you
       presented to [Father] [Mother]’s concerns?

       A. Yes.

       Q. So did [Father] acknowledge texting [O.K.] and ask[ing] her
       to keep the cell phone secret from her mother?

       A. Yes, he did.

                                   *      *        *

       Q. Did [Father] acknowledge talking to the [C]hildren about child
       support and financial issues?

       A. Yes.

       Q. Did he acknowledge talking to [O.K.] about private school
       versus public school and to not tell mom?

       A. I believe so. Yes.

                                   *      *        *

       Q. Did [Father] acknowledge that his ex-girlfriend obtained a
       [Protection from Abuse (PFA)] against him?

       A. Yes.

       Q. Did he acknowledge showing [Mother] a gun?[10]
____________________________________________


10Mother filed a PFA petition against Father in 2011, with respect to him
showing his gun to her. Mother testified that the court granted her a
temporary PFA order. See N.T., 11/7/19, at 114, 156.


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       A. Yes.

                                   *      *        *

       Q. Did he acknowledge telling [G.K.] you are dead meat the next
       time I see you?[11]

       A. Yes.
____________________________________________


11 Mother testified on direct examination that, on the morning of G.K.’s 10th
birthday in December 2018, Father called G.K. on the telephone. Mother
testified:

       I heard the entire conversation, because the house was quiet[,]
       and it was just her and I in the room. [Father] immediately said
       to [G.K.], why haven’t I heard from you in two days[?] No happy
       birthday. She said, well, I called you four times yesterday. I
       called you twice in the morning. When did you call? I called you
       twice in the morning and twice at night. Well, did you call one
       time right after another, or did you space them out? She said, I
       called one right after the other. [Father] said, well, there’s a
       reason I didn’t answer the first time, and he said, I’m just so f---
       --- p----- off right now[,] and I want to know is your mom going
       to let me take you to breakfast for your birthday[?] She said, I
       don't know. Did you text her? He said, I did but she’s not
       answering my f------ question.

       And we had planned that evening . . . to go out to dinner. So
       [Father] said to [G.K.], you better figure this out with your mom,
       because if she doesn’t agree to this, then nobody is going to dinner
       tonight[,] and there’s going to be a f------ war. He said, do you
       think this is how I wanted to talk to you on your birthday[?] I’m
       just so pissed off. [G.K.] started crying. . . . So then when I was
       talking to her, [Father] said, who’s there, and she said, mommy.
       He said, has she been there the entire conversation[?] [G.K.]
       said, yes. He said, you’re dead meat the next time I see you,
       and she started crying hysterically. . . .

N.T., 11/7/19, at 106-09 (emphasis added). During her interview with Dr.
Esteve and her in camera interview with the court, G.K. described this
telephone conversation with Father, which was consistent with Mother’s
testimony. N.T., 11/15/19, at 65; N.T., 11/8/19, at 39-41.

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      Q. Are all of those concerns that [Mother] raised?

      A. Yes. . . .

      Q. So when you said that [Mother]’s concerns were reality based
      is that based on [Father]’s responses to your questions?

      A. There [sic] it is.

N.T., 11/15/19, at 43-45.

      Dr. Esteve testified that Father “has just extreme disregard for Mother,

[and he fails to] recognize what his role is in this conflict[,] and he doesn’t

seem to have any recognition how some of his statements and behaviors to

the [C]hildren would damage the [C]hildren or intimidate the [C]hildren.” Id.

at 47. Dr. Esteve testified that Father’s MMPI test results are “consistent with

someone who is . . . immature and self-indulgent, manipulative, obnoxious,

hostile, aggressive, somebody [who] is against authority, refuse[s] to accept

responsibility for their own problems. . . .” Id. at 48.

      Dr. Esteve explained that Father’s testing profile “is usually viewed as

having a personality disorder, probably a paranoid or passive-aggressive

personality.   Symptoms of a paranoid disorder are prominent in [Father’s]

clinical pattern.     Further, this implies the signs and symptoms are long-

standing, enduring and pervasive.” Id. at 50-51.

      With respect to Dr. Gordon’s critique that he was biased in favor of

Mother, Dr. Esteve refuted it. He explained:

      I went through the same exact process with both of these parties
      and as I stated, there was nothing off the record and . . . there

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      [are] . . . things . . . that I said about [M]other that are critical
      and concerning about her. If I were biased, I would ignore it, I
      would just pay attention to things that confirmed [M]other. . . .

N.T., 11/15/19, at 101-02. On cross-examination, Dr. Esteve further testified,

“I have concerns about both of these parties.      As I said, I certainly didn’t

ignore my concerns about [M]other.” Id. at 113.

      Nevertheless, Dr. Esteve testified that Mother and Father are not in the

“same ballpark” regarding their personality problems even though they both

had elevated MMPI-2 test scores.       Id. at 110.     Dr. Esteve stated, “The

interpretation of the MMPI is difficult. . . . [I]t doesn’t have 100 percent

predictive value. . . .” N.T., 12/2/19, at 45. As such, Dr. Esteve explained

that his conclusions regarding the personality problems of the parties are

based on “a combination of history, which is extraordinarily important in terms

of predictive value.   Recent history is a much higher predictive value than

ancient history. Also, clinical presentation, which I tried to summarize in my

report in the mental status section, and objective psychological testing.” Id.

at 43-44. Importantly, Dr. Esteve stated, “When we talk about personality

concepts, that’s abstraction so people get confused in the process, hence my

caution also about placing so much time and attention on the MMPI. It’s a

useful tool. It’s a very useful tool, but that’s what it is. It’s a tool.” Id. at

44-45.




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      Based on our thorough review of the relevant testimony, we discern no

abuse of discretion by the court in its credibility determination in favor of Dr.

Esteve and against Dr. Gordon. Father’s first issue fails.

      In his second and third issues, Father argues that the trial court abused

its discretion in awarding Mother sole legal and primary physical custody of

the Children.    Father asserts that, since their separation in 2011, he and

Mother have had shared legal custody of the Children. Father asserts that he

is a fit parent and a source of security and love for the Children. Further,

Father asserts that the court abused its discretion in the weight it placed on

the Section 5328(a) best interest factors. We disagree.

      Dr. Esteve made seven recommendations within a reasonable degree of

psychological certainty. See N.T., 11/15/19, at Ex. P10, 73-74. He opined,

“As long as these parents remain in chronic conflict[,] their [C]hildren will be

damaged.” Id. at Ex. P10, 73. He recommended that Mother and Father

participate in parental counseling. In addition, Dr. Esteve recommended that

Mother participate in psychotherapy due to her distress over the custody

situation, and that she participate in therapeutic intervention regarding her

relationship with O.K. and J.K. Id. With respect to Father, Dr. Esteve stated

that he “demonstrates little insight or care in how his behavior has severely

damaged    his   children,   his   relationship   with   his   children   and   other

relationships. . . . That his presentation is so consistent with one who easily

perceives any challenge as a personal attack, he too may benefit from


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psychotherapy.” Id. Dr. Esteve recommended that the Children participate

in individual psychotherapy. Id.

      With respect to physical custody, Dr. Esteve recommended:

      Although [Mother] seemed resigned to the position that she
      cannot regain her proper relationship and authority with the two
      older children, this Clinician is not convinced she is correct. This
      Clinician would strongly recommend that at bare minimum she
      have her initial partial custody time reinstated so that she can
      properly participate in her children’s lives as well as provide proper
      parental supervision. Further, a joint custodial relationship is only
      likely to be successful when both parents communicate and
      coordinate well. In this instance, that is clearly not the case. Per
      the report of all, [Mother] is primarily focused on the [C]hildren’s
      needs. [F]ather is not. . . . Hence, this Clinician would strongly
      recommend that [M]other have primary parental responsibility for
      [the C]hildren. In effect, this potentially limits to some degree
      [F]ather’s manipulation of the [C]hildren and places the [C]hildren
      in a calmer and healthier environment.

N.T., 11/15/19, at Ex. P10, 74.

      Dr. Esteve’s recommendations are based, in part, on his interviews with

the Children. On direct examination, Dr. Esteve testified regarding his clinical

impressions of the Children in connection with Father’s hostility toward

Mother. N.T., 11/15/19, at 52-74. He opined that the Children “are struggling

with conflicting loyalties.” Id. at 69. With respect to O.K., Dr. Esteve stated,

“[O.K.] was aware of her parents[’] open conflict[,] and [F]ather’s hostility and

his clear expectation of their loyalty. . . .” Id. at 72. He testified, “I observed

that the oldest daughter . . . made the choice to allow herself to live with her

father and that appeared to be a choice that she now regretted. And [she] is

trying to find a way to repair her relationship with her mother.” Id.


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     With respect to J.K., Dr. Esteve testified:

     Q. On the bottom of Page 62 [of his report], you note that [J.K.]
     observed his father’s open contempt for his mother?

     A.    Yes.

     Q. Can you describe how you came to that conclusion?

     A. Well, the paragraph above it. He was describing his father’s
     response, I believe, it was from a text message from [M]other.
     And if the [c]ourt will excuse me for swearing, but the father’s
     response was “F--- her.” This is, of course, in front of the child.
     [J.K.] understood that is his father’s open contempt for his
     mother.

     Q. And I am interested in [J.K.’s] explanation [for Father’s
     behavior toward Mother] sta[r]ting on the bottom of Page 62 with
     he explained.

     A. “I understand the differences between men and women.” Or
     assumed he should believe that this is the difference between men
     and women.     . . .     Basically, that [Father] expressed his
     emotions[,] and this is the way a man is supposed to express his
     emotions.

     Q. Is that healthy for fifteen, sixteen-year-old boy?

     A. No, of course, not.

N.T., 11/15/19, at 60-61.

     Dr. Esteve continued:

     A.     [J.K.] questioned rhetorically, “whose fault is it? Mom has
     a different philosophy. She doesn’t want to discuss this or include
     me in this. Dad gets angry and vents.”

     Q. Is that important, Dr. Esteve?

     A. That’s extremely important. [H]ealthy parents protect the
     children[.] [H]ealthy parents recognize the importance of helping
     their children find . . . the best possible scenario. They help the
     child love the other parent. [Mother] certainly isn’t going to be

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J-S33016-20


      openly critical or engage in the criticism against [Father]. [Father]
      is clearly very open and engaged in his contempt for [Mother].

      Q. Did [O.K.] and [J.K.] both express to you that they feel that
      they are in the middle of this conflict?

      A. Yes, of course.

N.T., 11/15/19, at 62.

      Dr. Esteve testified regarding his interview of G.K., the parties’ then

eleven-year-old daughter:

      Q. What did [G.K.] describe about her relationship with her father?

      A. I asked her a question about her love of her parents[.] I asked
      her what [she] loved most about both of her parents, but I also
      asked her[,] if she had magic and could change one thing, but
      only one thing about each of her parents, what would she change?
      Now she volunteered that her father not be so upset and angry.
      And she cried and volunteered [that he] blame[s] a lot of things
      on the mom[.] [Father] doesn’t talk nice about [Mother].

      Q. Is that damaging to an eleven-year-old child, Dr. Esteve?

      A. Yes, she is openly distressed. Of course, it is damaging. Her
      mother is her primary model. [I]f the father is open in his
      contempt and disregard for the mother, the children see that they
      are part [of] both their parents, that means [in G.K.’s mind],
      [Father] has [the] same contempt for part of who they are.

Id. at 63-64. Likewise, Dr. Esteve testified that N.K., the parties’ then nine-

year-old son, told him during his interview that he “wishes that his dad would

stop yelling.” Id. at 67.

      The trial court’s in camera interviews of the Children were consistent

with those of Dr. Esteve. See N.T., 11/8/19, at 1-133. We particularly note




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the testimony of G.K., then eleven years old, regarding Father’s interactions

with her, and how it makes her feel. She testified upon inquiry by the court:

     A.   [S]ometimes it makes me nervous going over to [Father’s]
     house.

     Q. Why is that?

     A. Because sometimes he pulls me aside and asked me questions
     which makes me really nervous.

     Q. What kind of questions does your dad ask that makes you
     nervous?

     A. He asks me . . . if I want to keep living with my mom and, like,
     questions like that, where I want to live.

     Q. What do you tell your dad?

     A. I tell him I don’t know.

     Q. So let me understand this. Sometimes when you go over to
     your dad’s, you feel nervous because your dad asks you some
     questions.

     A. Uh-huh.

     Q. And that makes you feel nervous.

     A. Uh-huh.

     Q. And the questions he asks are: Do you want to live with your
     mom, or do you want to live with your dad. What other questions
     does he ask you?

     A. That’s the main question. I don’t really know what to say to
     him, and then he keeps going on.

     Q. He keeps asking the same question[?]
     A. Yeah, and brings up other things.

     Q. And when you say it makes you nervous, does it make you feel
     anything else?

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J-S33016-20



      A. I don’t really know how to answer him.

N.T., 11/8/19, at 36-37. G.K. subsequently testified, “I just wish that my dad

would stop asking me questions and pulling me aside . . . because he does

that every time I go to his house.” Id. at 49. G.K. testified that it makes her

feel “sad.” Id. at 49. G.K. continued:

      Q. Would you want me to talk to your dad about that? . . .

      A. Maybe.

      Q. Or would you rather I not say anything to your dad?

      A. Probably not say anything.

      Q. Are you sure?

      A. I want him to change, but I’m nervous about telling him that
      because I don’t tell him that.

      Q. Anything else you want to tell me . . .?

      A. Well, I’m nervous to say it, but once when I went to his house,
      he pulled me aside and we were talking outside for like two and a
      half hours.

                              *     *        *

      Q. Anything else you want to tell me about that?

      A. I can say what he said.

      Q. You can tell me.

      A. He told me not to tell anyone because it would get him in
      trouble. So I didn’t[,] and then I told my mom.

      Q. Do you want to tell me what it was?




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     A. Well, he kind of said that -- I was just looking at the ground
     things -- about living at mom’s house not eating sandwiches --

     Q. I missed what you said.

     A. Eating sandwiches, because I’m just looking at the ground,
     things like that, seeing my pets and stuff at mom’s house, but I
     should look at reasons that actually matter. . . .

     Q. Did he give you any examples?

     A. I’m not sure. I have a paper just to remember what he said.

                                 *   *        *

         He said that my mom listens to me on this Echo Dot thing.

     Q. What is Echo Dot?

     A. It’s like Alexa. . . .

                                 *   *        *

     Q. And your dad told you that mom listens on the Echo Dot?

     A. Yeah, but it hasn’t been plugged in for a while so. . . .

     Q. What else did your dad say?

     A. He also said that he can only get me out of some stuff, and
     then . . . if I choose to live at mom’s house, he can’t get me out
     of things, like, switching schools or moving. . . .

     Q. Anything else on your paper you want to tell me about?

     A. Well, I have more about when he talked to me for that long.
     He also said that if [N.K.] and I choose to live at mom’s house, he
     doesn’t want to have the big house anymore, which makes me
     sad because that’s, like, the house that I was born in. He says,
     we’re just going to move into a smaller house, [J.K.] and I,
     because [O.K.] will be going off to college[,] and you guys won’t
     be here. That scares me.

N.T., 11/8/19, at 50-52.

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       Upon thorough review, the trial court’s factual findings set forth above,

and those in its opinion accompanying the subject order, are supported by

competent evidence.          The court’s legal and physical custody award is

reasonable in light of those findings and its careful consideration of the Section

5328(a) best interest factors.12 In sum, the court made credibility findings in

favor of its appointed expert, Dr. Esteve, whose clinical impressions were

consistent with the testimony offered during the subject proceedings by

Mother, Father, and the Children. The court placed weight on Father’s hostility

towards Mother and its damaging effect on the Children, which we may not

disturb. A.V. v. S.T., 87 A.3d at 820 (citation omitted). Because we discern

no abuse of discretion, Father’s second and third issues on appeal fail.

Accordingly, we affirm the custody order.

       Order affirmed.




____________________________________________


12With respect to the court’s sole legal custody award, we also note that
Mother’s and Father’s testimony revealed that Father did not cooperate with
court orders directing that Mother, O.K., and J.K. participate in reunification
counseling with Dr. Ward. Trial Court Opinion, 1/13/20, at 10, 12; N.T.,
11/7/19, at 110, 200-02, 225-26. In addition, Dr. Esteve testified that Father
was slow to cooperate with the evaluation process, and that Father failed to
comply with his instruction to bring O.K. and J.K. to one of the evaluation
meetings. N.T., 11/15/19, at 38-39, 106-07.

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J-S33016-20




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/14/20




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