OPINION BY McLAUGHLIN, J.:
H.M. (Father) appeals from the March 15, 2018 order awarding primary physical custody of his son J.M. (Child) to T.M. (Mother); partial physical custody to Father; and shared legal custody to both parents. We conclude that the trial court did not abuse its discretion by awarding Mother primary physical custody and denying Fathers petition to obtain increased physical custody. Therefore, we affirm.
Mother and Father were married in October 2009 and Child was born in December 2010. By April 2015, Mother filed for divorce. Following a custody conference in May 2015, the parties entered into an agreed interim order which stipulated that they would share legal custody of Child but Mother would have primary physical custody with partial physical custody on the weekends and scheduled dinner visits for Father. In July 2015, the parties agreed to enter a final custody order to this effect. However, thereafter the parties grew unsatisfied with the custody schedule and each filed cross-petitions for modification. After a three-day custody trial in August 2016, the trial court entered a final order on September 15, 2016, which increased Fathers overnight custody to Wednesday to Sunday on alternative weeks. The court fashioned Fathers periods of physical custody to coincide with his bi-weekly work schedule as a doctor at a local hospital.
Father filed yet another petition to modify custody less than two months later in December 2016. Father contended that he had reduced his work schedule in hopes of obtaining more physical custody of Child. Father specifically pointed to the ten-day gap in custody he and Child experienced as detrimental to their relationship. Father also requested telephone contact and dinner visits during his non-custodial weeks. Mother filed an answer, counterclaim, and petition for contempt seeking to reduce Fathers physical custody. Meanwhile, Father filed another petition, on April 13, 2017, seeking a full custody evaluation. After considering Fathers request at a May 9, 2017 pretrial conference, the trial court ordered a psychological evaluation but declined to require a full custody evaluation.
After multiple continuances, the trial court conducted yet another multi-day custody trial in February 2018. During trial, Dr. Ronald J. Esteve testified regarding the psychological evaluation he completed regarding Child. Dr. Esteve testified about the positive relationship Child enjoys with both his parents but noted that Child had a difficult time talking about his respective parents in the presence of the other parent. He also acknowledged the considerable acrimony between the parties. Although Dr. Esteve opined that a full custody evaluation might provide additional information to the court, he also indicated that a custody evaluation could likely contribute to the tension between the parties. Ultimately, the court decided not to order a full custody evaluation.
Also testifying at trial was Andrea Nation, Childs counselor. Ms. Nation reported that she did not feel focusing on requiring Child to call Father while with Mother was worthwhile because Child had demonstrated a clear aversion to making calls to the noncustodial parent. She explained that while both parties had been generally cooperative, there had been a two month period during which Father did not bring Child to counseling:
[Mothers counsel]: You said father was cooperative. Did he ever stop bringing [Child] to counseling sessions?
[Ms. Nation]: He wouldnt stop bringing [Child]. I just did not get consistent, as consistent requests from him for an appointment as I did from the mom, but I also - since I was only - I didnt see a need for him necessarily to be in here every single week. So, you know, when she had him, she would reach out to me, and when she didnt, he would reach out to me via e-mail, you know, and just, you know, say, how is [Child]? How is he doing? How is counseling? So, theres some exchange for him to call and set up an appointment. That started happening more recently, I would say, in the past couple of months.
[Mothers counsel]: Yeah, didnt he stop bringing [Child] though to counseling in September of 2017?
[Ms. Nation]: There was a break in counseling. There was not a request -- I had sent out an email to both parents because I was making it clear what my role, what role I felt comfortable having going forward would be, and that I did not think that the focus should be on [Child] making these phone calls because he didnt really have that interest nor did I see myself able to, at that particular time, work through what was very contested between the two of them. Their relationship lacks trust on both ends, so I didnt see how I could work, facilitate co-parenting strategies with them since they didnt even speak to each other. So I didnt want to get involved with that. So I told them that I was focused on [Childs] expressions, you know, having a place for him where, you know, he felt safe and where he could share and learn how to share his emotions.
N.T., 2/13/18 at 71-72.
Further, in an effort to prove that Father was reluctant to take Child to counseling with Ms. Nation, Mother submitted a letter into evidence, written by Fathers counsel, which indicated that Father had concerns about Ms. Nations supposed faith-based counseling techniques and her alleged reluctance to meet with men one-on-one. The trial court also conducted an interview of Child, in camera , during which Child indicated that he wished to maintain the status quo in terms of physical custody and specifically stated that he did not want any additional overnight visits with Father.
After the trial, the trial court issued an order, dated March 15, 2018, which discussed the statutory factors set forth under 23 Pa.C.S. § 5328(a). Germane to this appeal, the court determined that Mother was slightly more likely to attend to the daily needs of Child due to her flexible work schedule. To this end, the court specifically found that Father likely worked more hours then he indicated. Likewise, the court noted that Mother could depend on her mother, Childs grandmother, for child care assistance, while Father could rely upon his girlfriend. The court also weighed the factor of which party was most encouraging of Childs relationship with the other parent slightly in favor of Mother. The court explained that Mother was more likely than Father to ensure that Child would attend counseling to facilitate his parental relationships. The court deemed counseling particularly important due to the parents acrimonious relationship.
However, the court did note that both parties were equally capable of maintaining a loving, stable, and nurturing relationship with Child. Further, the court weighed Childs stated preference to have the custodial schedule remain the same only slightly in favor of Mother due to Childs young age and attendant lack of maturity. Ultimately, the trial court altered the parties custody schedule only slightly by ordering partial physical custody for Father on alternative weeks from Thursday until Monday morning.
On April 11, 2018, Father filed the instant timely appeal, along with a Concise Statement of Errors Complained of on Appeal.
Father now raises the following issues for our review:
A. Did the trial court err in failing to order a comprehensive custody evaluation, as requested by [Father], and as recommended by Dr. Ronald Esteve, the court ordered psychologist?
B. Did the trial court err and abuse its discretion in failing to award [Father] additional time with [Child] based upon the statutory facts as enumerated in 23 Pa.C.S.A. § 5328(a) when [Father] works a week on/ week off schedule, and the effect of the courts order dated March 15, 2018, is that the minor child continues to go approximately ten (10) days with no contact with [Father]?
C. Did the trial court err in finding that 23 Pa.C.S.A. § 5328 factor # 1 - which party is more likely to encourage and permit frequent and continuing contact between the child and another party - is weighed in favor of [Mother], and that factor # 9 - which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the childs emotional needs - was a neutral factor, despite the evidence of record, including testimony from the court ordered psychologist and [Mothers] own sister?
D. Did the trial court err in finding that factor # 7 - the well - reasoned preference of the child, based on the childs maturity and judgment - weighed in favor of [Mother] given the courts own recognition of the difficulties in measuring the maturity and reasoning of a seven-year-old child, as well as the fact that the court ordered psychologist opined that [Child] should not testify?
E. Did the trial court err in overemphasizing [Mothers] role as primary caretaker, despite the fact that [Father] has consistently requested additional time with [Child], has altered his work schedule to accommodate [Child], and tends to [Childs] educational, medical and emotional needs when [Child] is in his care?
F. Did the trial court err in its conclusion that [Father] stopped taking [Child] to therapy and that [Father] was not supportive [Childs] counseling, based upon the evidence of record?
Fathers Br. at 16-17.
When reviewing a custody order, our scope of review is broad and our standard of review is an abuse of discretion. P.J.P. v. M.M. , 185 A.3d 413, 417 (Pa.Super. 2018) (citation omitted). While this Court must accept the factual findings and credibility determinations of the trial court which are supported by competent evidence, we are not bound by the trial courts deductions or inferences from that evidence. Id. We will only reverse a trial courts custody order, if after giving due deference to a trial courts credibility determinations, we conclude that the court committed an error of law or an abuse of discretion. Hanson v. Hanson , 878 A.2d 127, 129 (Pa.Super. 2005).
When a trial court orders a form of custody, the best interest of the child is paramount. P.J.P. , 185 A.3d at 417 (citation omitted). A non-exclusive list of factors a court should consider when awarding custody are set forth at 23 Pa.C.S. § 5328(a) :
(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 partys 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 childs education, family life and community life.
(5) The availability of extended family.
(6) The childs sibling relationships.
(7) The well-reasoned preference of the child, based on the childs 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 childs 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 partys 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 partys 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 partys household.
(15) The mental and physical condition of a party or member of a partys household.
(16) Any other relevant factor.
23 Pa.C.S. § 5328(a).
In a custody action, it is within the trial courts discretion based on the record before it to determine the relevant weight to give each of the Section 5328(a) factors in a particular case. M.J.M. v. M.L.G. , 63 A.3d 331, 339 (Pa.Super. 2013). Further, while a childs custody preferences must be considered in a custody action, [t]he weight to be afforded to the childs preferences varies with the age, maturity and intelligence of the child, together with the reasons given for the preference. Gianvito v. Gianvito , 975 A.2d 1164, 1170 (Pa.Super. 2009).
In his first issue, Father contends that the trial court erred by declining to order a full custody evaluation. Father argues that the evidence adduced at trial demonstrated both Mothers bias against him and her manipulative behavior towards his relationship with Child. Thus, Father avers that a full custody evaluation would assist the court in recognizing Mothers malfeasance and the need for Father to gain more physical custody of Child. To this end, Father cites Johns v. Cioci , 865 A.2d 931 (Pa.Super. 2004), as an example of a similar case in which this Court required a full custody evaluation.
However, as noted by the trial court, pursuant to the Pennsylvania Rules of Civil Procedure a court is not mandated to order a full custody evaluation but may do so at its discretion. Pa.R.C.P. 1915.8(a) ; see N.H.M. v. P.O.T. , 947 A.2d 1268, 1276-77 (Pa.Super. 2008). Further, Johns , cited by Father, is inapposite because in that case the factual background was vastly different, including a desired relocation of the child there at issue. In this case, the trial court aptly determined that a full custody evaluation was not necessary in light of all the information elicited at the full custody trial. Further, the court emphasized that Dr. Esteve indicated that a full custody evaluation might result in increasing the already rampant animosity between the parties. Therefore, we conclude that the trial court did not abuse its discretion by declining to order a full custody evaluation and Fathers first issue lacks merit.
In his next three issues, Father finds fault with the trial courts findings pursuant to Section 5328(a). Father begins by generally arguing that the court erred by determining that increased time with Father would not serve Childs best interests. Father points to his increased availability for Child due to his reduced work schedule. He also contends that the trial court wrongly weighed Section 5328(a)(1), regarding which parent would more likely encourage contact between Child and the other party, against him. To this end, he emphasizes that he has allegedly offered Mother more custodial time with Child while Mother does not offer him the same but instead turns to Childs grandmother for childcare assistance.
Father also avers that that the trial court incorrectly found that Section 5328(a)(9), regarding which party is more likely to maintain a loving, stable and nurturing relationship with Child, was a neutral factor between the parties. Father points to testimony from Dr. Esteve that he contends indicates that Father has a closer bond with Child than Mother. Lastly, Father argues that the trial court erred by placing any weight whatsoever on Childs custody preference. Father argues that Childs stated desire to maintain the custody status quo was made as the result of immaturity and was not supported by any specific reasoning.
The trial court addressed Fathers contentions by considering the Section 5328(a) factors on the record as required. See M.J.M. , 63 A.3d at 339. In its Pa.R.A.P. 1925(a) opinion, the court finds that Mothers schedule has proven to be more flexible over time and that Father was likely working more hours than he avers. Plus, the court noted that Mother could rely on Childs grandmother. Thus, the court found that Mother was more likely to be able to attend to the daily needs of Child. The trial court was well within its purview when deciding which Section 5328(a) factors to accord the most weight. M.J.M. , 63 A.3d at 339. In essence, Father asks this Court to re-weigh the evidence and re-assess the trial courts credibility determinations. This we cannot do. See P.J.P. , 185 A.3d at 417. Accordingly, Fathers second and third issues challenging the trial courts application of the Section 5328(a) factors do not warrant relief.
Moreover, we hold that the trial court did not abuse its discretion by according weight to Childs preference to maintain the custody status quo. As mandated, the trial court considered Childs maturity and acknowledged Childs likely propensity to feel caught in the middle of his parents. See Gianvito , 975 A.2d at 1170. Thus, the trial court properly noted that Childs preference should be weighed only slightly in favor of Mother. We decline to conclude that the trial courts decision to accord weight, if only slightly, to Childs custody preference constitutes an abuse of discretion. Therefore, Fathers fourth issue on appeal also must fail.
Turning to his fifth issue, Father claims that the trial court placed undue weight on the notion that Mother has served as Childs primary caretaker. Father points out that this Courts decision in M.J.M. clarifies that the caretaking responsibilities are but one factor to be considered under Section 5328(a)(3). See M.J.M. , 63 A.3d at 338. Here, Father argues that Mothers increased caretaking is only a function of the current custody schedule and contends that the trial court did not sufficiently take into account his reduced work schedule.
We cannot agree. The trial court specifically indicated that it did not attribute substantial weight to the caretaking factor and weighed it only slightly in favor of Mother. Moreover, the trial court aptly noted that, generally speaking, Mothers schedule is more flexible and that Mother has tailored her schedule around Childs needs. Accordingly, the evidentiary record supports the trial courts findings and Fathers fifth issue also lacks merit.
In his sixth and final issue, Father asserts that the trial court erred by determining that he had failed to take Child to therapy when the evidence of record did not support that conclusion. Father points to Ms. Nations testimony at trial where she stated that both parents had brought Child to counseling sessions and that scheduling issues of her own had impeded therapy. Further, Father points to Ms. Nations testimony that Father has maintained consistent contact with her regarding Child.
Conversely, the trial court cites Ms. Nations testimony in which she admits that a break in counseling did occur and that Mother more consistently requested appointments for therapy. The court noted that Father admitted that he did not take Child to therapy in October or November. Further, the court points to Fathers counsels letter to Mother, noting his objections to Ms. Nation as a counselor for Child. The trial court had ample evidence of record to support its factual findings and credibility determinations regarding Fathers reluctance to facilitate counseling with Ms. Nation. Therefore, we are bound by those factual determinations and conclude that Fathers sixth issue also does not merit relief. See P.J.P. , 185 A.3d at 417.
Based on the foregoing, we conclude that the trial court did not abuse its discretion by awarding Mother primary physical custody and denying Fathers petition to obtain increased physical custody. Therefore, we affirm the courts March 15, 2018 order.
Order affirmed.
Judge Stabile joins the Opinion.
Judge Bowes files a Dissenting Opinion.
DISSENTING OPINION BY BOWES, J.:
I believe the trial court abused its discretion by refusing to order a comprehensive custody evaluation as recommended by the court-appointed expert, Ronald J. Esteve, Ph.D. Accordingly, I respectfully dissent from the learned majoritys decision to affirm the order awarding T.M. (Mother) primary physical custody of the minor child, J.M., who was born of Mothers marriage to H.M. (Father).
Pursuant to Pa.R.C.P. 1915.8(a), a custody court may order the child(ren) and/or any party to submit to and fully participate in an evaluation by an appropriate expert or experts. Whether to order a custody evaluation is a matter within the purview of the custody court. Jordan v. Jackson , 876 A.2d 443, 455 (Pa. Super. 2005) (It is clearly within the courts discretion whether to order an evaluation.). An abuse of discretion occurs where a trial court overrides or misapplies the law or exercises judgment which is manifestly unreasonable, or reaches a conclusion that is the result of partiality, prejudice, bias or ill will as shown by the evidence of record[.] Ottolini v. Barrett , 954 A.2d 610, 612 (Pa.Super. 2008).
The majority provides three bases to affirm the courts decision to discount Dr. Estevess recommendation and forego ordering a complete child custody evaluation: (1) custody evaluations are not mandatory; (2) this case is distinguishable from precedent where we concluded that an evaluation was warranted; and (3) a full custody evaluation might result in increasing the already rampant animosity between the parties. Majority Opinion at 290. As I explain in detail infra , none of these grounds defeats Fathers claim that the court abused its discretion in ignoring the obvious need for a comprehensive custody evaluation and by rejecting his several entreaties for the court to order it.
I frame my perspective of the majoritys position with three countervailing points, which I outline at the outset and develop seriatim infra . First, while custody evaluations are not mandatory, they are invaluable, and it is beyond peradventure that it serves a childs best interests to perform a comprehensive review of all of the relevant circumstances prior to rendering a custody decision. Next, notwithstanding the majoritys protestations to the contrary, this appeal aligns with the facts of Johns v. Cioci , 865 A.2d 931 (Pa.Super. 2004), wherein we vacated a custody order and remanded the case with directions for the trial court to order a full custody evaluation. Finally, to the extent that the trial court invoked the parental conflict as a reason to forego the custody evaluation, the record bears out that the enmity between Mother and Father is so severe that it will continue to permeate these proceedings regardless of the courts protective measure. Stated plainly, the animosity between Mother and Father could not help but filter down to J.M. In my view, attempting to shield J.M. from the all-consuming discord between Mother and Father is futile. It is clear that J.M.s interests would be better served if the court confronted the obstructive parental conflict, utilized a comprehensive custody evaluation to expose the source of the dissonance, and eradicated it.
Although Rule 1915.8(a) does not mandate a custody evaluation in every case, the rules explanatory comment recognizes that custody evaluations are among the class of evidence that have served as a means to provide the court with a full and complete record[.] Pa.R.C.P. 1915.8 Explanatory Cmt.-2007. The polestar of child custody law is to serve the best interests of the child. C.G. v. J.H. , --- Pa. ----, 193 A.3d 891, 909 (2018) (The paramount concern in child custody cases is the best interests of the child.). The esteemed Joanne Ross Wilder articulated the importance of a comprehensive review in this situation as follows, Custody determinations are so important that the trial court is expected to play an active role in creating a thorough and complete record. Wilder, Pa. Family Law Prac. and Proc. (5th ed.), § 28-5 (footnote omitted). Indeed, [o]f all cases presented to the courts, none is considered more important than the determination of the custody of children. Ashford v. Ashford , 395 Pa.Super. 125, 576 A.2d 1076, 1079 (1990). Thus, custody hearings must be full and comprehensive and all witnesses be heard who can contribute to that understanding[.] Id. at 1080. In this vein, I highlight Attorney Wilders valued sentiments, the purpose of a psychological evaluation in a custody case is to assess the best psychological interest of the child, focusing upon parenting capacity, the psychological and developmental needs of the child, and the resulting fit. Wilder, supra at § 28-5 (footnote omitted). Stated another way, a custody evaluation exposes truths that are essential to the creation of a full and complete record. Accordingly, while the majoritys statement of law is accurate insofar as a custody evaluation is not mandatory under Rule 1915.8(a), the fact that the evaluation was not compulsory does not negate the reality that it was necessary for the court to be fully informed on the nuanced aspects of this case.
We addressed a similar situation in Johns , supra , and after finding that the certified record did not support the courts award of primary physical custody to Father, this Court vacated the award and remanded the case for a comprehensive custody evaluation prior to the new custody hearing. Johns involved a custody dispute concerning a twelve-year-old child of divorced parents whose relationship has been characterized by poor communication, frequent disagreements, and numerous court appearances. Id. at 934. As part of the ongoing, contentious litigation, the father requested a custody evaluation, but the trial court ruled that a thorough custody evaluation was unnecessary. Instead, the court-appointed expert performed a limited psychological evaluation on the mother and father. Although the trial court communicated with the expert, neither party presented the expert to testify during the ensuing custody hearing. The custody court awarded the father primary custody, and the mother appealed. Id. at 935.
On appeal, this Court remanded the matter and directed the parties to undergo a comprehensive custody evaluation. In ordering the evaluation, we stated:
Both parties love their daughter, have the ability and desire to provide for her well-being, and give high priority to her welfare. While we recognize that the child has flourished with Mother as primary caretaker, we are nonetheless concerned about the many examples of Mothers manipulative behavior and her failure to encourage the loving relationship that the child has with Father.
Id. at 945.
As explained, below, I believe that the Johns Courts rationale compels that we remand this appeal for a thorough custody evaluation. I begin with a brief primer on this close case between combative parents with an enduring mistrust of one another. Neither parents behavior is beyond reproach, and the certified record is replete with examples of their pugnacity. Mother is adverse to any form of cooperative parenting, and complains that Father is innately chauvinistic due to his foreign culture, unable to provide adequate care or supervision, and litigious, having initiated the current custody modification proceeding months after the trial court entered a final custody order. Father counters that Mother intentionally interferes with his relationship with J.M. and purposely distracted J.M. during his interactions with Father on the telephone, Skype, and FaceTime. Meanwhile, eight-year old J.M. is suffering from the discord. Indeed, based upon his limited psychological evaluation of J.M., Dr. Esteve determined that, while J.M. appears healthy, the child has shouldered a degree of responsibility for the parental dissonance and assumed some responsibility for correcting it.
Father initiated the latest chapter of the custody dispute in December 2016, when he filed a petition to modify the existing custody order. Father argued that the court-ordered custody arrangement allotting him biweekly physical custody between Wednesday afternoon and Sunday evening created a ten-day lapse in any physical contact with his son. Furthermore, he complained that Mother refused to facilitate the court-ordered telephone contact with J.M. during his noncustodial periods. Father requested that the trial court order specific dates and times for his telephone contact, or alternatively, permit dinner visits during the noncustodial week. Mother responded with a petition for modification that sought to further reduce Fathers biweekly period of overnight custody from the five days (Wednesday-Sunday) to two (Friday-Sunday).
Following a custody conference, the trial court entered an interim order directing the parties to consult with J.M.s therapist, Deb Stoner, to address J.M.s apparent reluctance to speak with Father on the telephone while the child was in Mothers physical custody. Specifically, the order read, Ms. Stoner is requested to assist the parties in resolving their differences regarding telephone and/or FaceTime/Skype contact between the minor child and Father. Trial Court Opinion, 1/23/17, at 2. However, on March 29, 2017, the custody court entered an interim order that changed J.M.s counselor from Deb Stoner to Andrea Nation, the counselor identified by Mother as having insurance coverage, and directed that the counselor address the telephone/FaceTime/Skype issue and oversee telephone communication during at least one session per week. Trial Court Opinion, 3/29/17, at 1-3. The interim order allowed Father to verify Ms. Nations qualifications, confirm insurance coverage, and determine whether he would agree to utilize Ms. Nations services in lieu of one of the counselors recommended by Ms. Stoner.
Meanwhile, in anticipation of the custody hearing, Father requested a comprehensive custody evaluation. Following argument on Fathers petition, the trial court declined Fathers request for a custody evaluation but permitted Father to obtain a psychological evaluation of J.M., which Dr. Esteve completed on January 6, 2018.
During trial, Dr. Esteve testified that he was appointed to perform a psychological evaluation of J.M., which he described as an assessment of the nature of his relationship with both parents. N.T., 2/12/18, at 48. He presumed that the courts purpose for the evaluation was to determine if, at all, there is any consequence to the [parental] conflict, and obviously, litigation between these parents on the development of this child. Id. at 55. Stated plainly, Dr. Esteve, was interested in how the child functions emotionally. Id. at 56.
In performing the evaluation, Dr. Esteve interviewed both parents, administered a parenting stress index, which measured the parental perceptions of Mother and Father, and conducted interactional evaluations of J.M. with each parent. Notably, J.M. is exquisitely aware of the parental conflict, which neither parent has taken responsibility for escalating. Id. at 66, 76. Indeed, Dr. Esteve observed that the then-seven-year-old child was the only member of the family that has made any accommodations. Id. at 67. He advised the court that where, as here, the enmity between parents is obvious, a significant component of the interactional evaluation is to observe how comfortable the child is to discuss the other parent and in that parents presence. Id. at 57.
In this vein, Dr. Esteve testified that J.M. was more reserved during his interactional with Mother than his meeting with Father. Id. at 59. Specifically, during his interactional with Father, J.M. was extremely sociable, open, affectionate, and freely spoke of Mother. Id. at 56-57. Dr. Esteve perceived a loving interaction between Father and J.M., and noted that the two share a very strong bond. Id. at 64. Tellingly, Dr. Estevez testified that his actual observations of Father with J.M. belied Mothers characterization of Father as historically unaffectionate toward their son. Id. at 64.
In contrast, J.M. was substantially different during the subsequent interactional with Mother. Id. at 58. The child initially refused to interact with Dr. Esteve. Id. at 59. Thereafter, he was defiant with Mother, snubbed her attempts to redirect his attention to the card game that they had started, and engaged in negative attention seeking-behavior. Id. at 59-60. In addition, unlike the openness he displayed toward the absent parent during the interview with Father, J.M. neglected to mention Father in Mothers presence. Id. at 60.
As I previously indicated, Mother opposes cooperative parenting. Instead, she endorses parallel parenting, an absolutist approach that shuns communication and coordination between parents. Dr. Esteve stated that parallel parenting, where each parent makes decisions for the child independently, is incompatible with the fundamental principle that parental harmony and cooperation are essential to ensuring a childs mental health. He explained, the most potentially damaging or traumatic experience for a child is unresolved chronic conflict between his parents. Id. at 67. Dr. Esteve continued, it is profoundly important to know that both ... parents are communicating with each other[.] Id. at 68. Unfortunately, seemingly blind to the crisiss effect on J.M., Mother believes that any expectation of co-parenting disrespect[s] the reality that Mother and Father have a damaged relationship that is beyond repair. Id. at 66.
Ultimately, Dr. Esteve rendered three recommendations: (1) counseling to help J.M. understand that he is neither the cause of the parental strife nor responsible for resolving it; (2) parental counseling, despite Mothers overt aversion to participation, to reduce the risk of harm that the conflict poses to J.M.; and (3) a thorough custody evaluation. As it relates to the custody evaluation, Dr. Esteve explained,
I know that they went through an evaluation already but conducting a full evaluation [is recommended.] And the reason I say that is the possibility ... that [it] ... might add more information [for] the Court. I wasnt asking the parents to criticize the other parent. I wasnt asking them for a lot of detail about the other parent nor was I asking them for a lot of detail about themselves.
Hence, I cant make custody recommendations, but they both clearly were highly motivated to tell me what their express concerns are, valid or not, about the other parent. Thats what it becomes then. Its about the other parent or their problems in their relationship with the other parent. The only way I can opine about that is to ... spend the time with both of them and go through the procedures that I would need to go through with both of them. Otherwise, I cant express a direct opinion about that. Thats why th[e] recommendation [for a custody evaluation] is there.
Id. at 69-70.
In order to provide the court with a meaningful custody recommendation, Dr. Esteve needed to perform a detailed examination of the parental conflict, the nature of the countervailing assertions, and their effect on J.M. This aspect of Dr. Esteves recommendation echoes the bedrock tenet of breadth of record that Attorney Wilder articulated in her treatise, and that resonated with this Court in Ashford, supra , wherein we remanded a custody appeal for further proceedings because of the requirement that all custody hearings be full and comprehensive and all witnesses be heard who can contribute to th[e] understanding [of a childs best interest]. Ashford , supra at 1080, 1081 (We are not prepared to reverse the Order of the trial court but are not of the opinion that the record is adequate to support the trial courts decision[.]).
As noted supra , the court rejected this component of Dr. Esteves recommendation, awarded Mother primary physical custody of J.M., and effectively reduced Fathers custodial period by one day. In explaining its basis for declining to order a comprehensive custody evaluation, the trial court invoked the seven-year-olds desire to maintain the status quo, and the courts wish to avoid aggravating the parental conflict. While my learned colleagues adopt the courts positions, I respectfully disagree.
As highlighted by Dr. Esteves foregoing testimony, the stress associated with the intense hostility between Mother and Father is a threat to J.M.s emotional well-being. In light of this persistent dissension, which, at Mothers directive, the parents have neglected to resolve through counseling, I believe that the trial court erred in failing to order a comprehensive custody evaluation that would have provided all of the information necessary to evaluate the entanglement of issues involved in this case.
Instantly, the custody court conducted a rote application of the custody factors outlined in 23 Pa.C.S. § 5328(a) and fashioned an award in Mothers favor. In rejecting Fathers claims on appeal, the majority engages in an equally limited analysis, at least as it relates to Fathers complaints regarding the trial courts failure to order a comprehensive custody evaluation.
This Court has stated that, All of the factors listed in section 5328(a) are required to be considered by the trial court when entering a custody order. J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa.Super. 2011) (cleaned up). Instantly, the trial court determined that one-half of the factors, i.e. , two, five, six, eight, nine, thirteen, fourteen, and fifteen, were either neutral or inapplicable to the facts of this case. Of the remaining factors, all but two militated slightly in favor of [Mother] Trial Court Order, 3/15/18, at 1-5. Specifically, the court found that factors eleven and twelve, relating to the proximity of the residences and the availability of child care, respectively, weighed in Mothers favor without qualification. Id. at 6. From my perspective, in electing to forego a comprehensive custody evaluation, the trial court eschewed the essential resource that would have aided it in considering the statutory factors that the court determined where nearly equal but favored Mother ever so slightly. Without the assistance of a comprehensive custody evaluation, the court was required to employ mechanical decision making, when the facts demanded a contextual examination of the entire case.
One example where a custody evaluation would have been beneficial to the court relates to its review of Fathers interactions with Ms. Nation. A significant component of the trial courts custody analysis centers on the fact that Father temporarily stopped taking J.M. to counseling with Ms. Nation between September and November 2017. I start by recalling two important points of reference. First, Father consistently transported J.M. to the counseling sessions between April 2017 and immediately before Ms. Nations September communiqué advising him of her unilateral decision to terminate the court-ordered focus of the counseling. Second, Father reinitiated J.M.s treatment with Ms. Nation during December 2017, when it became evident that Mother had weaponized his reaction to the reworked counseling sessions and sought to use it against him during the custody proceedings. Mothers maneuver proved fruitful, and Fathers interactions with Ms. Nation during this period framed the trial courts custody determination to the degree that it referenced Fathers behavior throughout its order and opinion and invoked it specifically in analyzing two of the factors that militated in Mothers favor.
However, I believe that a review of this situation through the prism of a comprehensive custody evaluation would demonstrate that the courts overt disapproval of Fathers conduct is misplaced. In point of fact, Fathers motives were valid insofar as the presumably neutral counselor, Ms. Nation, was hesitant to meet Father in person and she unilaterally decided to ignore the court-ordered focus of the counseling sessions, i.e. , J.M.s reluctance to engage Father on the telephone while in Mothers custody. Moreover, the record bears out that Father maintained contact with the counselor during the three-month hiatus, and most importantly, that Ms. Nation did not view Fathers lull as problematic.
A comprehensive custody evaluation would have flushed out the fact that this seemingly hotly-contested issue between Mother and Father that contributed the courts custody analysis was, in reality, trivial in its relation to J.M.s best interest. However, without the assistance of the custody evaluation, the trial court neglected the foregoing circumstances and considered Fathers hesitation to continue with the then-unsanctioned focus of counseling as evidence that Mother not only was the parent more likely to encourage contact with the other party, but also was the person who performed the parental duties.
Furthermore, notwithstanding the majoritys protestations to the contrary, the case at bar is strikingly similar to the facts underlying Johns . There is an extended history of litigation, Fathers concerns about Mothers interference with his telephone contact with J.M. have persisted throughout the custody dispute, and although Father twice requested a comprehensive custody evaluation to address this component of the case, the trial court only permitted Dr. Esteve to perform a psychological evaluation of the child. When Father renewed his request for a comprehensive evaluation, the court deferred its ruling until further testimony was received at trial, and subsequently denied the entreaty outright.
Both Johns and the case at bar involve unduly combative parents whose intense hostility placed their child at risk. While the twelve-year old child in Johns vented her emotions overtly, and J.M.s expressions are internal, in both instances, the trial court recognized the need for counseling to assist the children in dealing with the mutual enmity between their respective parents. Moreover, while the majority attempts to distinguish the Johns decision based upon the fact that the mother had filed a petition to relocate, that fact was irrelevant to our determination concerning the need for a thorough custody evaluation. Indeed, this Court specifically affirmed the custody court order that denied the mothers petition for relocation. See Johns , supra at 939 (In light of all of the above factors, we affirm the trial courts conclusion that Mother did not meet her burden of proof with regard to the first prong of [the relocation considerations].). Nevertheless, in reaching the separate issue concerning the effect of an award of primary physical custody on a child who is at risk emotionally, the issue which aligns precisely with the case at bar, we reasoned the trial judge found the problems sufficiently severe to agree that immediate counseling for the child was needed. Given the instability that this child has experienced and her apparently difficult adjustment, we believe a full custody evaluation is necessary. Id. at 945. In light of our express concern with the childs stability and difficulty adjusting, issues that reverberate in this case with J.M., I am not persuaded by the majoritys attempt to fashion a ground to avoid the application of the Johns Courts rationale herein.
Similarly, the trial courts preoccupation with potentially increasing the animosity is misplaced. I recognize that J.M. noted a desire to maintain the status quo and informed the court that he did not want to talk to Father on the telephone while in Mothers physical custody. While the trial court, and by extension the majority, accept the childs statements at face value, I believe that a thorough custody evaluation is necessary to penetrate the childs response and reveal his true motivations. Mindful of Fathers assertion that Mother commonly interferes with the father-son relationship, it is possible, if not probable, that J.M.s reluctance to speak with Father in this circumstance is a product of Mothers control rather than J.M.s independent aversion to increased contact. Indeed, even in rejecting a comprehensive custody evaluation, the trial court recognized, something deeper is going on with the child that he did not want to spend more time with his father and did not want to call him during his mothers custody periods. Trial Court Opinion, 6/29/18, at 11. However, instead of confronting this situation directly and permitting Dr. Esteve to perform a custody evaluation to investigate the deeper issue that the court clearly identified, the court simply rejected Fathers assertions of parental interference and relied upon the childs stated preference as a basis to decline further inquiry. Id. at 11-12. In my view, this was reversible error.
Finally, the trial court cites the parental discord as a basis to maintain the status quo and forego the custody evaluation. However, attempting to shield J.M. from parental conflict by limiting his physical and telephone contact with Father is a defective prophylactic because it not only impedes the development of the beneficial bond between J.M., but also rewards Mother for her obstinate refusal to engage in counseling and does an end run around the fundamental issue in the custody dispute, i.e. , how the conflict inhibits the childs best interest. Unlike the trial court, and by extension the majority, I believe that the courts hesitation to confront the essential issue because it is unpleasant resulted in a disservice to the child. Rather than simply yielding to the animosity raging between the parents as an encumbrance to achieving J.M.s best interest, the court could, but consistently declines to, order the parties to engage in parental counseling, a remedy that Mother continues to oppose.
Thus, despite acknowledging the benefits of a comprehensive custody evaluation, the trial court declined to order it. As the court did not have the necessary information to evaluate all of the issues in this case, I believe the court abused its discretion in refusing to order the recommended custody evaluation. Accordingly, I would vacate the trial courts March 15, 2018 custody order awarding Mother primary physical custody, and consistent with Johns , supra , remand this matter to the trial court for the preparation of a comprehensive custody evaluation that comports with Dr. Esteves recommendation.
Pa.R.C.P. 1915.8(a) provides as follows:
Rule 1915.8. Physical and Mental Examination of Persons
(a) The court may order the child or a party to submit to an evaluation by an appropriate expert or experts. The order may be made upon the courts own motion or on motion of a party with reasonable notice to the person to be examined, and shall specify the place, manner, conditions and scope of the examination and the person or persons by whom it is to be made.
While the prior custody order awarded Father partial physical custody on alternating weeks between Wednesday afternoon and Sunday evening, the current order provides the biweekly custody between Thursday afternoon and Monday morning during the school year. Thus, unless the Monday falls on a day when school is not scheduled and the day is not one of Mothers predetermined holidays, Fathers time with J.M. is effectively reduced by one day per custodial period.
Ironically, while the trial court noted that J.M. would have to address certain issues related to his father in therapy, the court not only endorsed Mothers selection of Ms. Nation, a therapist who expressly refused to address this precise issue, but it also criticized Father for challenging Ms. Nations decision to circumvent the court-ordered focus of therapy and then faulted Father for protesting that decision, as if Fathers post-hoc protest was the reason that Ms. Nation altered the therapy in the first place. Trial Court Opinion, 6/29/18, at 11-12; see also Trial Court Order, 4/15/18, at 2 ([J.M.s] adamant refusal to speak to [Father] over the telephone ... was to be the subject of counseling with Andrea Nation, LCSW, but [Father] stopped taking the child for approximately four months.). The temporal fallacy of the courts rational is obvious.