J-A25011-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 E.W.L.                                   :   IN THE SUPERIOR COURT
                                          :        OF PENNSYLVANIA
                                          :
               v.                         :
                                          :
                                          :
 L.V.D.G.-L.                              :
                                          :
                    Appellant             :   No. 584 MDA 2019

                Appeal from the Order Entered March 15, 2019
               In the Court of Common Pleas of Dauphin County
                    Civil Division at No: 2014-CV-7323-CU

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

MEMORANDUM BY STABILE, J.:                             FILED JUNE 03, 2020

      L.V.D.G.-L. (“Mother”) appeals from the order entered March 15, 2019,

which awarded E.W.L. (“Father”) primary physical custody of their children,

L.L., a female born in May 2006, A.L., a female born in May 2008, and E.L., a

male born in September 2010 (collectively, “the Children”), during the school

year. The order awarded both parties shared legal custody, with the exception

that Father would have sole legal custody to make major decisions regarding

the Children’s education, and regarding any medication necessary to treat

attention deficit hyperactivity disorder (“ADHD”) or other related diagnoses.

After careful review, we affirm in part and vacate in part.

      The record reveals that Mother and Father married in 2003, separated

in 2011, and divorced in 2016. Prior to the instant proceedings, the parties

exercised custody of the Children pursuant to an agreed-upon order entered

April 20, 2018. The order awarded Mother primary physical custody of the
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Children, and awarded Father partial physical custody on the first, second,

fourth, and fifth week of each month, from Thursday at 7:00 p.m. until Monday

at 9:00 a.m., and on the third week of every month, from Thursday at 5:00

p.m. until Friday at 9:00 a.m. The order awarded shared legal custody to

both parties.

      On September 13, 2018, Father filed a petition for contempt, as well as

a petition for modification of custody. Among other things, Father requested

that the trial court enter an order directing that the Children attend public

school, rather than continuing to receive homeschooling from Mother. Father

based this request on his assertion that Mother was hostile toward him and

impaired his relationship with the Children, and on his assertion that E.L. was

struggling academically and in need of support that would be unavailable in a

homeschool environment. Subsequently, Father filed a petition for expedited

relief on October 5, 2018, in which he requested that the Children attend

public school immediately, due to E.L.’s educational difficulties and Mother’s

alleged inability to address the Children’s academic needs. The court entered

an agreed-upon order on November 1, 2018, which modified the prior custody

award slightly, pending a hearing on Father’s petitions for contempt and

modification. Notably, the order directed that the parties consider obtaining

a tutor for E.L.

      The trial court conducted a hearing on Father’s petitions on March 14,

2019. At the hearing, each party’s counsel presented their witnesses’ direct




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examination testimony as an offer of proof. Opposing counsel then engaged

in cross-examination.

      Father presented his case-in-chief first. Father’s testimony focused on

his concern that Mother was too “enmeshed” in the Children’s lives and failed

to encourage his relationship with the Children due to her hostility toward him.

He also testified regarding E.L.’s educational struggles and the extent to which

public schooling may be more beneficial for him and the other Children than

homeschooling by Mother.

      Specifically, Father testified that Mother is the Children’s homeschool

teacher, Sunday school teacher, and soccer coach, and that she is involved in

a scouting program for L.L. and A.L. Id. at 26-27. He complained that Mother

often schedules activities during his custody time, most notably soccer events.

Id. at 23-24, 41-43. In contrast, Father’s testimony suggested that Mother

is hostile to his attempts to schedule activities for the Children. His testimony

included an incident during which the Children attended a party at his house

and “what the kids were telling [F]ather was, do not tell mom we are having

this party because . . . they were afraid they were going to get in trouble if

mom found out that they were having fun at dad’s house[.]” Id. at 26.

      Father also testified that Mother is routinely late to custody exchanges

and sometimes fails to bring the Children to exchanges at all. Id. at 12. He

asserted that Mother had been late to forty-nine of eighty possible exchanges

since April 2018 and that she simply failed to appear at another six exchanges.

Id. Father added that, of Mother’s forty-nine late exchanges, she was forty-

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five minutes late fifteen times, and between one and two hours late eleven

times. Id. He recalled an incident during which he had custody of the Children

and Mother was late to an exchange. Id. at 13. After waiting for over fifteen

minutes, Father left the exchange location and sent Mother a text message

saying she could pick up the Children at his home. Id. Mother then called

Father on the phone “and started yelling at him and dropping eff [sic] bombs,

which she knew well the kids are in the car.”1 Id. at 13-14. In addition,

Father recalled an incident during which Mother was late to an exchange and

he sent a text message reminding her of the custody conciliator’s admonition

that she should arrive to exchanges on time. Id. at 15. Mother responded,

“Who cares what [the conciliator] said. She is a fat loser. You’re just like her;

fat and stupid; fat, fat, fat.” Id.

       Regarding the Children’s education, Father testified that E.L. struggles

with reading and suffers from ADHD. Id. at 17-18. He reported that Mother

was resistant to obtaining an evaluation for E.L. and that she took advantage

of the evaluation as an opportunity to damage the Children’s relationship with

him. Id. at 17-19. Specifically, Father described an incident during which

Mother informed him that she was “making sure the kids know that you think

they’re stupid which is why they need the testing.” Id. at 19. He challenged

Mother’s ability to be an appropriate homeschooler, expressing concern that



____________________________________________


1 Mother admitted during cross-examination that she was on speakerphone,
such that the Children were able to hear her. N.T., 3/14/19, at 78-79.

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the Children lack a routine and that they sometimes “brag about sleeping in

to lunch[.]” Id. at 21.

       Similarly, Father presented the testimony of Mother’s brother, D.V.D.G.,

who expressed concern regarding the quality of education that the Children

receive in Mother’s care. D.V.D.G. echoed Father’s concerns regarding the

Children’s lack of routine while homeschooling with Mother. He explained as

follows on cross-examination:

             One time I was in [Mother’s] house. This was a time when
       [Mother] was unresponsive, and so my mother had called me
       seeking help; and because we couldn’t find my sister, we called
       the police. And so when we come [sic] to the house, the door was
       actually open and we looked inside, and my wife and I, we weren’t
       able to quickly determine if the house was ransacked or just left
       open.

             So that was the last time I seen [sic] the house. It turns
       out that my sister had forgotten to charge her phone and was
       sleeping in the middle of the afternoon with three kids.

              That’s my last reference, and I have received no evidence,
       I have heard no evidence, that anything has changed with her
       ability to schedule and plan and structure homeschooling well.

Id. at 53.2

       As for Mother’s case-in-chief, she focused her testimony on attempting

to refute Father’s evidence. Mother testified that Father is uncooperative and


____________________________________________


2 D.V.D.G. also expressed concern that Mother exhibits “somewhat racially-
motivated views,” recalling that he previously shared a very close relationship
with Mother, but that their relationship soured after he married a Filipino
woman. N.T., 3/14/19, at 49-50, 53. He explained that Mother refused to
allow L.L. and A.L. to refer to his wife as “tiya,” the Filipino word for “aunt,”
and that Mother “took the kids away from her.” Id. at 49-50.

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refuses to take the Children to their extracurricular activities, which upsets

them, and that he is equally to blame for the parties’ co-parenting difficulties.

She also presented testimony that the Children are thriving in homeschooling.

      During her testimony, Mother challenged Father’s insistence that she is

too “enmeshed” in the Children’s lives, asserting that adults other than herself

supervise and schedule the majority of the Children’s activities. Id. at 68.

She maintained that she does not take advantage of the Children’s activities

to interfere with Father’s custody time, asserting that the Children receive

notice of their activities and then ask both parents individually whether they

may attend. Id. at 77, 92. Mother stated that the Children want to participate

in these activities and that Father upsets them by preventing them from doing

so. Id. at 68. She also insisted that Father violates the parties’ prior court

order by failing to take the Children even to activities that she and Father have

agreed to. Id. at 92-93.

      While Mother admitted making disparaging statements toward Father,

she maintained that many of her statements were the product of “mutual

errors in co-parenting that have come both ways,” and that the situation was

“not as one-sided as [F]ather would have us believe.” Id. at 70. She insisted

that she does not making disparaging remarks about Father in the presence

of the Children, and did so by accident on only one occasion when she did not

realize she was on speakerphone. Id. at 78-79. Mother asserted that Father

has engaged in spiteful behavior of his own, such as by cancelling medical




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appointments scheduled for the Children during her custody time. Id. at 72,

90.

         Regarding the Children’s education, Mother presented the testimony of

Linda Blocker, an individual with “extensive experience with homeschooling

. . . for roughly [twenty-five] years,”3 who administered testing to measure

the Children’s educational progress. Id. at 57-58. Ms. Blocker reported that

L.L. and A.L. are doing very well, and that E.L., while he previously “lagged

behind as many young boys do,” is now succeeding with the help of private

tutoring. Id. at 57. Mother also presented E.L.’s tutor, Janna Match, who

testified that the child has made “exceptional” progress and is “among the

most quickly progressive students she ever had in this capacity.” Id. at 60.

Nonetheless, Ms. Match conceded on cross-examination that E.L. continues to

read at an “[e]arly first” grade level, despite being in the second grade. Id.

at 62.

         At the conclusion of the hearing, the trial court conducted an on-the-

record analysis of the custody best interest factors set forth at 23 Pa.C.S.A. §

5328(a), and announced that it would award primary physical custody of the

Children to Father during the school year. The court memorialized its decision

by order entered March 15, 2019. The court awarded partial physical custody

to Mother on the first, third, and fifth weekend of every month, from Friday at

____________________________________________


3Mother’s pre-trial statement indicates that Ms. Blocker possesses a master
of education degree and is the Children’s homeschool evaluator.


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4:00 p.m. until Sunday at 7:30 p.m., and on each Wednesday evening from

after school until 8:00 p.m. During the summer, the court awarded Mother

physical custody for three non-consecutive two-week periods. The court also

awarded the parties shared legal custody of the Children, with the exception

that Father would have sole legal custody to make major decisions regarding

their education, and regarding any medication necessary to treat ADHD or

other related diagnoses.4 Mother timely filed a notice of appeal on April 11,

2019, along with a concise statement of errors complained of on appeal.5

____________________________________________


4 The record does not indicate that the trial court entered an order resolving
Father’s petition for contempt. However, we observe that Father’s counsel
essentially abandoned the petition for contempt at the hearing, suggesting
that the court need not impose any sanction on Mother, other than “[m]aybe
a scolding so she understands a court order actually means something.” N.T.,
3/14/19, at 119.

5 The record reveals that Father filed a combined petition for expedited relief,
contempt, and modification on April 17, 2019. The trial court then entered an
agreed-upon order on May 28, 2019, which directed that Mother pay Father
$1,000 in attorney’s fees and modified the prior order of March 15, 2019,
indicating that the parties had “settled” the matter “without prejudice.” Order,
5/28/19, at 1 (unnumbered pages).

      To the extent the trial court possessed jurisdiction to modify the order
of March 15, 2019, despite Mother’s pending appeal, it is important to note
that the modification did not render this appeal moot. See Pa.R.A.P. 1701(a)
(“Except as otherwise prescribed by these rules, after an appeal is taken or
review of a quasijudicial order is sought, the trial court or other government
unit may no longer proceed further in the matter.”); In re D.A., 801 A.2d
614, 616 (Pa. Super. 2002) (“An issue before a court is moot if in ruling upon
the issue the court cannot enter an order that has any legal force or effect.”).
The court did not modify any aspect of the order that Mother challenges on
appeal, but instead addressed several ancillary issues, such as directing that
Mother attend therapy. Thus, the claims underlying Mother’s appeal remain
unresolved and we proceed to consider them on the merits.

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     Mother now raises the following claims for our review:


     A. Whether the trial court abused its discretion and committed an
     error of law by awarding [Father] primary physical custody of the
     [] Children?

     B. Whether the trial court abused its discretion and committed an
     error of law in awarding Father sole legal custody for educational
     and pharmacological purposes and for finding that the Children
     should be enrolled in public school instead of continuing their
     homeschool education?

Mother’s Brief at 32 (unnecessary capitalization omitted) (suggested answers

omitted).

     This Court adheres to the following standard of review in child custody

appeals:

     In reviewing a custody order, our scope is of the broadest type
     and our standard is abuse of discretion. We must accept findings
     of the trial court that are supported by competent evidence of
     record, as our role does not include making independent factual
     determinations. In addition, with regard to issues of credibility
     and weight of the evidence, we must defer to the presiding trial
     judge who viewed and assessed the witnesses first-hand.
     However, we are not bound by the trial court’s deductions or
     inferences from its factual findings. Ultimately, the test is whether
     the trial court’s conclusions are unreasonable as shown by the
     evidence of record. We may reject the conclusions of the trial
     court only if they involve an error of law, or are unreasonable in
     light of the sustainable findings of the trial court.

V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations omitted).

     “When a trial court orders a form of custody, the best interest of the

child is paramount.” S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014)

(citation omitted). The factors that trial courts must consider when awarding

custody are set forth at 23 Pa.C.S.A. § 5328(a), as follows:


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     (a) Factors.--In ordering any form of custody, the court shall
     determine the best interest of the child by considering all relevant
     factors, giving weighted consideration to those factors which
     affect the safety of the child, including the following:

           (1) Which party is more likely to encourage and permit
           frequent and continuing contact between the child and
           another party.

           (2) The present and past abuse committed by a party
           or member of the party’s household, whether there is
           a continued risk of harm to the child or an abused
           party and which party can better provide adequate
           physical safeguards and supervision of the child.

           (2.1) The information set forth in section 5329.1(a)
           (relating to consideration of child abuse and
           involvement with protective services).

           (3) The parental duties performed by each party on
           behalf of the child.

           (4) The need for stability and continuity in the child’s
           education, family life and community life.

           (5) The availability of extended family.

           (6) The child’s sibling relationships.

           (7) The well-reasoned preference of the child, based
           on the child’s maturity and judgment.

           (8) The attempts of a parent to turn the child against
           the other parent, except in cases of domestic violence
           where reasonable safety measures are necessary to
           protect the child from harm.

           (9) Which party is more likely to maintain a loving,
           stable, consistent and nurturing relationship with the
           child adequate for the child's emotional needs.

           (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.



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            (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).

      In the instant matter, the trial court included its on-the-record analysis

of the Section 5328(a) factors in its opinion. Trial Court Opinion, 5/15/19, at

14-16. The court also elaborated on this analysis, explaining that it reached

its custody determination due primarily to E.L.’s academic struggles, and due

to its belief that Mother was too “deeply enmeshed with” the Children, to the

degree that she excluded Father from the Children’s lives. Id. at 16-17. The

court added that it believed Mother was primarily responsible for the parties’

high level of conflict. Id. at 17. The court concluded as follows:


            It is uncontroverted that the two older children are excelling
      academically in the homeschool environment, however, as I
      stated on the record, the children should not be split up and should
      also attend the same school. There was no evidence presented
      that the two older children’s educational needs will not be met in
      [Father’s school district], including access to computer resources,
      science and technology courses, as well as providing them a
      regular routine.      The overall circumstances of this case,
      summarized above, reveal that the children need their Mother to
      be less enmeshed in their lives including most notably with their

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       schooling. This disentanglement from Mother in the educational
       setting is necessary and will be in their best interests . . . .

Id. at 18.6

       In her first claim on appeal, Mother argues that the trial court misapplied

the Section 5328(a) factors and overlooked the Children’s best interests when

it awarded primary physical custody to Father. Mother’s Brief at 43, 46-55.

She discusses each of the factors in the argument section of her brief, other

than Section 5328(a)(16), contending that they either weighed in favor of her,

were neutral, or were inapplicable. Id. Mother places particular emphasis on

her argument that she has served as the Children’s primary caretaker for most

of their lives and that she is more capable of providing for their needs. Id. at

47-52.

       In relation to this argument, Mother acknowledges that this Court must

defer to the trial court’s weight and credibility determinations when the record

supports them. Id. at 45. However, she insists that the weight and credibility

determinations in this case are “due less deference than normal” because the

witnesses did not present their direct testimony in question-and-answer form

and instead employed offers of proof. Id. at 45, 54. Mother argues that this


____________________________________________


6 Further, the trial court explained that it awarded Father sole legal custody
over medication for ADHD or related diagnoses because Mother had “delayed”
in obtaining medication for E.L. See Trial Court Opinion, 5/15/19, at 18 (“I
granted Father sole authority to make decisions concerning ADHD medication
and medication for related diagnoses because Mother has delayed, without
adequate excuse, pursuing this potential proven treatment to assist children
with ADHD.”).

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arrangement denied the court the usual opportunity to observe the witnesses

as they testified and impaired its ability to assess their credibility. Id. at 45.

She also suggests that Father’s evidence was misleading to the court, because

he presented as exhibits “selective emails . . . some going back several years,”

which he used to villainize her. Id. at 45, 53-54.

      After careful review of the certified record, we discern no error of law or

abuse of discretion. As discussed above, Father’s evidence during the hearing

established that Mother has been overtly hostile to his relationship with the

Children. Mother has disparaged Father, even in the Children’s presence, and

has failed repeatedly to comply with the parties’ prior custody order, by either

appearing late to custody exchanges, or by failing to bring the Children to the

exchanges entirely. The record also indicates that Mother has endeavored to

impair Father’s relationship with the Children by encouraging the Children to

participate in an excessive number of extracurricular activities during Father’s

custodial time. Notably, it was Mother’s own testimony that most strongly

supported the existence of this problem. She testified regarding one incident,

for example, during which Father refused to take the Children to six different

activities during a single weekend, including “a youth cookie party . . . youth

pancake breakfast, indoor soccer, Bible study, some additional soccer event,

and . . . drum lessons[.]” N.T., 3/14/19, at 75, 110.

      While Mother contends that the trial court should have rejected Father’s

evidence and weighed the Section 5328(a) factors in her favor, this argument


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is clearly specious. Mother claims that this Court should not defer to the trial

court’s credibility and weight determinations because the witnesses presented

their direct testimony via offers of proof, and the court did not have the usual

benefit of observing the witnesses testify during direct examination. However,

Mother waived this claim by failing to object to the offer of proof procedure

during the hearing. See State Farm Mut. Auto. Ins. Co. v. Dill, 108 A.3d

882, 885 (Pa. Super. 2015) (quoting Lockley v. CSX Transp. Inc., 66 A.3d

322, 325 (Pa. Super. 2013)) (“‘[T]o preserve an issue for appellate review, a

party must make a timely and specific objection at the appropriate stage of

the proceedings before the trial court. Failure to timely object to a basic and

fundamental error will result in waiver of that issue.’”); see also Pa.R.A.P.

302(a) (“Issues not raised in the lower court are waived and cannot be raised

for the first time on appeal.”). What Mother also fails to acknowledge is that

the court did have the opportunity to observe the witnesses as they testified,

as counsel for both parties conducted their cross-examination in the traditional

question-and-answer form. Thus, Mother’s claim is meritless.

      Mother’s suggestion that we should disregard the trial court’s credibility

and weight determinations because Father’s exhibits were too old is equally

unavailing. The certified record on appeal does not contain any of the exhibits

admitted during the hearing.    However, Father included the exhibits in his

supplemental reproduced record.      Because Mother does not challenge the

authenticity of these exhibits, we may consider them. See Commonwealth


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v. Barnett, 121 A.3d 534, 545 n.3 (Pa. Super. 2015), appeal denied, 128

A.3d 1204 (Pa. 2015), cert. denied, 136 S.Ct. 2391 (2016) (“While this Court

generally may only consider facts that have been duly certified in the record,

where the accuracy of a document is undisputed and contained in the

reproduced record, we may consider it.”) (citation omitted).

       Upon review, many of Father’s exhibits do not have dates. Of those that

do, Father’s oldest exhibit is Plaintiff’s Exhibit 4, which consists of two emails

dated March 22, 2015. This exhibit is not particularly damaging to Mother, as

it consists of a civil discussion regarding what type of schooling the Children

should receive. The next oldest exhibit, Plaintiff’s Exhibit 39, is an email dated

January 30, 2018, just over a year prior to the hearing on March 14, 2019.

This belies Mother’s assertion that Father misled the court by using emails

“going back several years” to villainize her. We see no basis to disturb the

trial court’s credibility or weight determinations, and we affirm the portion of

the court’s order awarding primary physical custody of the Children to Father.7




____________________________________________


7 As part of this claim, Mother also contends that the trial court should have
interviewed the Children, maintaining that they were sufficiently mature to
have a well-reasoned preference. Mother’s Brief at 43, 50. Mother waived
this contention as well, as she did not request that the court interview the
Children during the hearing, nor did she include a claim that the court erred
by failing to interview the Children in her statement of questions involved and
concise statement. See Pa.R.A.P. 302(a); see also In re M.Z.T.M.W., 163
A.3d 462, 466 (Pa. Super. 2017) (“[I]t is well-settled that issues not included
in an appellant’s statement of questions involved and concise statement of
errors complained of on appeal are waived.”).

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      In Mother’s second claim, she argues that the trial court violated Staub

v. Staub, 960 A.2d 848 (Pa. Super. 2008), by ordering that the Children

attend public school, and assails the court’s decision to award Father sole legal

custody over educational decisions.     Mother’s Brief at 43, 56-58, 62. She

maintains that the Children are thriving with their homeschool education and

that there is no evidence to support the court’s conclusion that public school

will be better suited to meet their needs. Id. at 43-44, 48-49, 56-62. Even

assuming that the record supports the court’s decision that E.L. should attend

public school, Mother continues, that decision does not require that L.L. and

A.L. attend public school as well. Id. at 50, 56, 61. Mother also challenges

the portion of the court’s order awarding Father sole legal custody over

decisions regarding whether to provide the Children with ADHD medication.

Id. at 47, 56. Mother directs our attention to her testimony that she would

abide by the recommendation of E.L.’s pediatrician regarding medication for

ADHD, and characterizes the court’s award as “an extreme response to the

evidence of record[.]” Id. at 48, 56.

      Mother appears to misunderstand this Court’s holding in Staub. In that

case, the appellant appealed from the trial court’s order denying his petition

for special relief, in which he requested that the court prevent the appellee

from continuing to homeschool the parties’ children. Staub, 960 A.2d at 849.

On appeal, the appellant requested that this Court “to adopt a clear but narrow

rule that requires children to attend public schools when parents who share


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legal custody cannot agree on home schooling versus public schooling.” Id.

This Court declined the appellant’s request, holding instead that trial courts

must decide between public schooling and homeschooling using the same best

interest standard that applies to other child custody decisions. Id.

        Contrary to Mother’s contentions, nothing about the trial court’s decision

in this matter violated Staub. The court’s opinion confirms that it reached its

decision that the Children should attend public school by considering their best

interests, as Staub required. See Trial Court Opinion, 5/15/19, at 19 (“[M]y

decision to grant Father sole authority to decide education issues and end

homeschooling as of 2019-2020, was made upon careful consideration of all

factors relevant to the [C]hildren’s best interests, as fully set forth above.”).

Moreover, the record supports the court’s decision. As we discussed in relation

to Mother’s first claim, the record indicates that Mother has used her position

of influence in the Children’s lives as their primary custodian and homeschool

teacher to impair their relationship with Father. Mother failed to comply with

the parties’ prior custody order and spoke disparagingly about Father, even in

the Children’s presence. Further, Mother attempted to involve the Children in

an excessive number of extracurricular activities during Father’s custodial

time.

        The record also belies Mother’s assertion that she is capable of providing

an appropriate homeschooling environment for the Children. Both Father and

Mother’s brother, D.V.D.G., testified regarding the apparent lack of routine


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and structure in Mother’s home. N.T., 3/14/19, at 21, 53. In addition, when

Mother proved ineffective in addressing E.L.’s academic struggles, she resisted

obtaining the help that he needed to improve. Mother failed to acknowledge,

and may have even concealed, E.L.’s struggles by resisting Father’s request

that the child receive an evaluation. Mother then used Father’s concern for

E.L., which proved to be entirely valid given the child’s eventual diagnosis of

ADHD, as yet another way to undermine his relationship with the Children. As

Father testified during his direct examination, Mother informed the Children

that Father believed “they’re stupid which is why they need the testing.” Id.

at 19. Given this evidence, it was within the trial court’s discretion to conclude

that public schooling would be in the Children’s best interests and that Father

should exercise sole legal custody over the Children’s educational decisions.

      However, we reach a different conclusion with respect to the trial court’s

decision to award Father sole legal custody regarding medication for ADHD

and related diagnoses. As noted above, the court explained that it awarded

Father sole legal custody in this area because Mother “delayed” in obtaining

ADHD medication for E.L. The record does not support this finding. During

the hearing, the court heard minimal testimony on the issue of medication.

None of this testimony suggested that Mother had delayed pursuing

medication for E.L., nor did it indicate that E.L. was even in need of medication

in the first place. During direct examination, Father testified regarding E.L.’s

evaluation, noting that the child received a diagnosis of ADHD, and “that one


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of the ways to deal with ADHD is to give medication, which as Your Honor is

aware, had been discussed in the pretrial.”8 N.T., 3/14/19, at 18. Mother

testified during cross-examination that E.L. had an appointment with his

pediatrician following a pretrial conference and that the pediatrician “decided

he didn’t have enough information[.]”9 Id. at 111. She further testified that,

if E.L.’s pediatrician “would recommend medication, then that’s what we will

go with. He had not at this time.” Id. Thus, at best, the record indicates

that the parties discussed the possibility of obtaining medication for E.L. at

their pretrial conference, that Mother brought the idea to the attention of E.L.’s

pediatrician, and that the pediatrician did not recommend medication. The

record does not suggest that Mother delayed in obtaining recommended or

necessary medication for E.L. such that an award of sole legal custody to

Father would be in the Children’s best interests. We conclude that the court

abused its discretion and we vacate that portion of the March 15, 2019 order.



____________________________________________


8 We observe that E.L.’s evaluation does not recommend that the child receive
ADHD medication. The evaluation, which is eight pages long, addresses ADHD
medication for all of two sentences. It states, “Problems with attention are
sometimes treated with medication. . . . Obviously, any indications, risks or
benefits of medication should be reviewed with and initiated by a physician.”
Plaintiff’s Exhibit 20 (E.L.’s evaluation) at 8. This exhibit, like the others, does
not appear in the certified record but does appear in Father’s supplemental
reproduced record. See Barnett, 121 A.3d 534, 545 n.3.

9 In its opinion, the trial court states that Mother admitted failing to provide
the information that the pediatrician requested. Trial Court Opinion, 5/15/19,
at 9 (citing N.T., 3/14/19, at 111). Upon review, the relevant transcript page
does not contain the statement by Mother that the court describes.

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In its place, the parties will continue to share legal custody of the Children

with regard to medication in accordance with their prior custody order, subject

to their ability to request modification of legal custody in the future.

      In summation, we discern no abuse of discretion or error of law by the

trial court in awarding Father primary physical custody of the Children, and in

awarding Father sole legal custody over the Children’s educational decisions.

However, because the record does not support the court’s finding that Mother

delayed in obtaining ADHD medication for E.L., we conclude that the court

abused its discretion by awarding Father sole legal custody over medication

for ADHD and related diagnoses. We must therefore vacate that portion of

the March 15, 2019 order. The parties will continue to share legal custody

regarding medication in accordance with their prior custody order, subject to

their ability to request modification of legal custody in the future. We affirm

the order in all other respects.

      Order affirmed in part and vacated in part. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/03/2020




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