March 13, 2014
Appeal from the Order Entered May 15, 2013, in the Court of Common Pleas of Lebanon County Civil Division at No. 2006-20469
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND PLATT, [*] JJ.
FORD ELLIOTT, P.J.E.
B.A.B. ("Mother") appeals the order dated and entered on May 15, 2013, that awarded Mother and J.J.B. ("Father") shared legal custody and retained primary physical custody of the parties' male children, Z.B. (age thirteen), C.B. (1) (age eleven), and C.B. (2) (age nine) (collectively, the "Children"), in Mother, with several special provisions.
In its 81-page opinion dated May 15, 2013, the trial court set forth the factual background and procedural history of this appeal. We relate only those facts and procedural findings as are relevant to our decision herein.
The parties have been engaged in a custody dispute since 2006. Mother has a history of abusing prescription drugs. The trial court found that Mother had obtained the services of Dr. Steven Laucks as her primary care physician to manage her health problems, and that all of her medications were prescribed by Dr. Laucks in an effort to combat her addiction. (Trial court opinion, 5/15/13 at 1-6, 34-35.) Father has a history of anger outbursts and domineering behavior toward Mother. (Id. at 1-6.)
In an opinion and order, entered on October 6, 2006, the trial court granted the parties shared legal custody of the Children, and Mother primary physical custody, with Father to have three weekends per month plus one evening of physical custody each week. (See id. at 8.) The October 6, 2006 order included an automatic reduction to alternating weekends if or when Mother obtained full-time employment. (Id. at n.1.) The 2006 custody order also directed a review of the custody dispute to occur in 2007, and provided Father the opportunity to obtain medical records so that he could monitor Mother's use of prescription drugs. (Id. at 8.)
The review of the 2006 custody order occurred in August of 2007, as directed. The trial court explained the subsequent procedural history of the case, and its reasons for its modifications to the 2006 custody order, as follows.
On August 13, 2007, [the trial court] conducted a review hearing. As of the 2007 review hearing, MOTHER was abiding by the medication plan developed by Dr. Lauks [sic] in 2006. She was still taking methadone, but she had avoided continued intake of oxycodone, hydrocodone or other similar prescription opiates. Following the 2007 review hearing, [the trial court] tweaked the 2006 Custody Order to address legitimate concerns of the parties. [The trial court] then affirmed the 2006 Court Order as the final Custody Order of [the trial court].
Trial court opinion, 5/15/13 at 5, 8.
On August 16, 2007, the trial court entered an order dated August 13, 2007, that affirmed and incorporated its October 6, 2006 order and decision, with two exceptions as to paragraph 3. Paragraph 3(1) was altered to reflect that the drop-off time for the Children was to be 6 p.m. instead of 8 p.m. Paragraph 3(2) was altered to reflect that, during the Children's summer vacation months, Mother was given the unilateral right to cancel Father's Wednesday night partial custody period on no more than two occasions.
The trial court explained the subsequent procedural history of the case, which included PFA petitions filed by Mother against Father and contempt petitions filed by Father against Mother, as follows.
Since 2007, the parties were before [the trial court] for two contempt petitions. In [March] of 2009, FATHER filed a contempt action, claiming that MOTHER systematically withheld one of the three weekends of physical custody per month to which he was entitled. In [the trial court's] October 6, 2006 Court Order, [the trial court] stated that if or when MOTHER obtained full-time employment, the weekend custody schedule could be modified to an alternating weekend arrangement. MOTHER notified FATHER in November of 2008 that she was working full time. Between November of 2008 and April of 2009, MOTHER implemented an alternating weekend custody schedule. At a contempt hearing that took place on May 29, 2009, [the trial court] determined that MOTHER was not in fact working on a full-time basis between November of 2008 and April of 2009[, ] and that she had wrongfully withheld partial custody from FATHER. As a result, [the trial court] found MOTHER in contempt.
In November of , another contempt action was filed [by Father]. Once again, MOTHER was accused of withholding physical custody from FATHER to which he was entitled under the Court Order. This time, MOTHER claimed that FATHER's behavior necessitated a cessation of physical custody, especially with the parties' oldest son, [Z.B.]. After listening to testimony, [the trial court] acknowledged that problems existed between [Z.B.] and FATHER[, ] and that FATHER was probably not completely blameless with respect to the etiology of these problems. Nevertheless, [the trial court] concluded that MOTHER had established a culture that promoted estrangement between [Z.B.] and his father. [The trial court] therefore found MOTHER in contempt for a second time. In addition, [the trial court] appointed C. Katherine DeStefano "to provide counseling services to the [B.] family with the goal of reuniting [Z.B.] with his father. . . [.]"
In addition to the above, MOTHER and FATHER have vigorously contested a multitude of other proceedings in Lebanon County that were for the most part ancillary to the issue of custody. Similarly, MOTHER pursued multiple Protection from Abuse (PFA) Petitions against FATHER.
Trial court opinion, 5/15/13 at 8-9.
On December 12, 2012, Father filed a petition for modification of the August 13, 2007 custody order, requesting primary physical custody of the Children. The trial court held evidentiary hearings on the modification petition on March 14, 2013, March 15, 2013, and April 26, 2013. At the hearing on March 14, 2013, Mother and Father testified on their own behalf. Following the hearing on March 14, 2013, the trial court appointed David O'Connell, Ph.D., to perform an independent drug and alcohol evaluation on Mother. (Trial court opinion, 5/15/13 at 39.)
At the hearing on March 15, 2013, Mother's counsel, Attorney Melissa Montgomery, questioned Mother on re-direct examination, and Father's counsel conducted re-cross examination. Mother's counsel then questioned C. Katherine DeStefano, the court-appointed outpatient therapist, as a stipulated expert in child psychology. (Notes of testimony, 3/15/13 at 78-79.) Next, Mother's counsel questioned Timothy Riley, M.D., who began as the primary care physician for Z.B. in August of 2011 and currently is his primary care physician. (Id. at 211-21.) Dr. Riley previously was the primary care physician for C.B. (1) and C.B. (2), between November of 2011 and July of 2012. (Id. at 211.) Mother's counsel then questioned Cheryl Fleming-Hirner, a witness to an incident that involved the family on February 25, 2012, described as the "Manheim incident." (Id. at 248-249.) Next, Mother's counsel questioned A.Y., a friend of Mother. (Id. at 259-260.)
Also on March 15, 2013, Father's counsel questioned Gary Friedman, Ph.D., a stipulated expert in clinical psychology, with expertise in anger management who was referred by Ms. DeStefano to work with Father, and who had been working with Father. (Id. at 180-195.) Father's counsel also questioned L.P., a friend of Father who had known him from Alcoholics Anonymous for almost 20 years. (Id. at 237-238.)
On April 26, 2013, Mother's counsel questioned Dr. David O'Connell, the court-appointed clinical and forensic psychologist who testified as a stipulated expert in addiction. (Notes of testimony, 4/26/13 at 5-6.) Father's counsel then questioned Drew Eisenhauer as a stipulated expert in addiction recovery, who has spent 35 years in continuous addiction recovery. (Id. at 74.) Father's counsel questioned Jeffrey Yocum, D.O., as a stipulated expert witness in addiction medicine. (Id. at 110-111.) He is a diplomat of the American Board of Addiction Medicine, as well as a family practice physician and the physician at White Deer Run detox rehab center, and the medical director at the Methadone Treatment Center both in Lebanon. (Id.)
Mother's counsel then questioned Dr. Laucks, Mother's treating physician. (Id. at 129-130.) Dr. Laucks has a background in anesthesia, addiction medicine, and occupational medicine, and currently focuses on chronic pain problems. (Id. at 129.) He began treating Mother in relation to her pain and pain medications in 2006. (Id. at 129-130.) Also on April 26, 2013, the trial court heard the testimony of the Children, in camera, questioned first by the guardian ad litem, Attorney Wiley Parker, then by Mother's counsel, and finally, by Father's counsel.
On May 15, 2013, the trial court rendered its decision on the record in open court, in a separate transcript, and entered its opinion and order on its docket.
The trial court's May 15, 2013 order included the following provisions:
1. Legal custody of the parties' sons, [Z.B., C.B. (1), and C.B. (2)], is awarded jointly to . . . [FATHER] and . . . [MOTHER]. MOTHER and FATHER must consult with one another regarding all decisions of importance in their children's lives, including but not limited to issues of importance relating to education, spiritual development, health, litigation, counseling and any other matters that transcend routine day-to-day importance. If and only if the parties cannot reach an agreement after consultation regarding an important issue, FATHER shall be granted the ability to render a final and binding decision.
2. Primary physical custody of the parties' children is awarded to MOTHER. FATHER shall enjoy physical custody with the [C]hildren as the parties may agree.
3. Should the parties not be able to reach an agreement regarding physical custody, at a minimum, FATHER shall be entitled to the following rights of physical custody: [schedule and rights omitted]
7. Counselor C. Katherine DeStefano is reappointed to serve as therapist for the [C]hildren. In addition, Ms. DeStefano shall select a counselor for MOTHER in accordance with the recommendation of Dr. David O'Connell and shall advise [the trial court] within thirty days of the name of the individual selected.
11. MOTHER shall obtain all of her prescription medications at the Medicine Shoppe located in Columbia, PA. On a quarterly basis, MOTHER is to obtain and provide to FATHER a computer printout showing all of her prescriptions. MOTHER shall continue to keep Dr. Lauks [sic] advised of all of her prescription medications.
Trial court order, 5/15/13 at 1-6.
The trial court explained its decision to award the parties shared legal custody, with the tie-breaking provision in favor of Father, and primary physical custody to Mother, as follows. 
Never before have we divided primary physical custody and legal custody. However, never before have we encountered a custody dispute remotely like the one at hand. As a general rule, legal custody should either be shared by the parents or awarded to the parent who is trusted with primary physical custody. However, every general rule has its exceptions. We conclude that this case represents such an exception.
We will be awarding primary physical custody of the children to MOTHER. As a primary custodian, MOTHER will continue to enjoy the ability to make routine day-to-day decisions involving the children's care. However, we will be modifying the existing joint legal custody order. We will still classify legal custody as "joint" in that both parties will be required to communicate with one another regarding all issues of importance in the children's lives. However, if after consultation the parties cannot agree upon an important decision involving the children, we will appoint FATHER as the tiebreaker. In other words, if an important issue arises and if MOTHER and FATHER cannot agree with respect to it, FATHER gets to make the call.
Trial court opinion, 5/15/13 at 78.
The trial court explained its decision to award shared legal custody, and to make Father the tie-breaker in matters of legal custody, as follows.
Up to this point, MOTHER has essentially made all decisions for the children and has done next to nothing to involve FATHER in the process. Effective today, that changes. We have every confidence that FATHER will communicate with MOTHER. As we stated earlier in this Opinion, our expectation is that FATHER will do so politely, civilly and without anger. As for MOTHER, she will no longer be able to ignore FATHER because we have now appointed him as the final decision-maker. Ultimately, the parties will have no choice but to communicate with one another.
Id. at 78-79.
On June 3, 2013, Mother timely filed a notice of appeal and concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). On appeal, Mother raises four issues as follows:
1. Whether [the] trial court erred when it in essence granted Father primary legal custody by stating that "if the parties cannot reach an agreement after consultation regarding an important issue, Father shall be granted the ability to render a final and binding decision?"
2. Whether [the] trial court erred when it granted Father an aggressive physical custody schedule, failing to properly take into account the factors for child custody as outlined in 23 Pa.C.S.A. [§] 5328 and going against the advice of the court-appointed therapist?
3. Whether [the] trial court erred when it ordered Mother to "obtain all of her prescription medications at the Medicine Shoppe located in Columbia, PA" and to provide Father on a quarterly basis a computer printout showing all of her prescriptions?
4. Whether [the trial court] erred when it ordered Mother to see a counselor as appointed by the said minor children's counselor when Mother already testified that she is currently seeing a counselor with whom she already has a relationship?
Mother's brief at 5.
Initially, we observe that, as the custody trial in this matter was held in March and April of 2013, the Child Custody Act ("Act"), 23 Pa.C.S.A. §§ 5321 to 5340, is applicable. C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa.Super. 2012) (holding that, if the custody evidentiary proceeding commences on or after the effective date of the Act, i.e., January 24, 2011, the provisions of the Act apply).
In custody cases, our standard of review is as follows:
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.
Id. at 443 (citation omitted).
We have stated:
[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).
With any custody case decided under the Act, the paramount concern is the best interests of the child. See 23 Pa.C.S.A. §§ 5328, 5338. Section 5338 of the Act provides that, upon petition, a trial court may modify a custody order if it serves the best interests of the child. 23 Pa.C.S.A. § 5338. Before we begin to address the issues raised by Mother, we note the trial court's herculean effort to explain in its comprehensive 81-page opinion the history of this matter along with the decisions it made and the reasoning for those decisions. It is clear to us, the trial court has done everything in its power to advance the Children's best interests.
In her first argument, Mother contends the trial court improperly granted Father primary legal custody, while describing its award as shared legal custody, by stating, "if the parties cannot reach an agreement after consultation regarding an important issue, FATHER shall be granted the ability to render a final and binding decision." (Mother's brief at 10.)
In Hill v. Hill, 619 A.2d 1086 (Pa.Super. 1993), this court was presented with a similar situation. In Hill, the trial court granted the parties "shared legal custody with the provision that in the event of conflict, the mother's decision shall prevail." Id. at 1087. Father asserted on appeal that the trial court's order "effectively granted mother sole legal custody." Id. at 1088. This court agreed, stating as follows:
The language in the order giving rise to appellant's objections is "In the event of disagreement, Mother's preference shall prevail." We conclude the court's order is a hybrid, not recognized by statute or decisional law, and effectively deprives father of shared legal custody. . . .
[T]he judge sought dual objectives in his order, to grant the parties shared legal custody and at the same time to forestall the parties from returning to court in the event of a disagreement. In so doing, however, the court gave the father authority in name only and deprived him of a legal remedy because he was already awarded "shared legal custody." There is no provision in the law for the order the court issued.
This Court is neither unaware of nor unconcerned with the fact that granting shared custody involves an inherent risk that couples may reappear on the courthouse steps for further resolution of their conflicts. . . . While theoretically this may be, we trust this will happen only rarely. . . .
It is abundantly clear . . . that the concept of shared legal custody does not contain the principle of giving one parent final authority in the event of a dispute. Id. at 1088-1089 (citations omitted).
Based on Hill, we agree with Mother that the trial court erred by describing its award as shared legal custody, but designating Father as the tie-breaker in any failure of the parties to agree with regard to issues encompassed by legal custody. In so doing, the trial court effectively awarded Father sole legal custody.
We, however, believe this case calls for one of the parents to be awarded sole legal custody. This court, in Wiseman v. Wall, 718 A.2d 844 (Pa.Super. 1998), identified those factors a trial court must evaluate when considering a request for shared custody:
Among the factors which must be considered in awarding shared custody are the following: (1) both parents must be fit, capable of making reasonable child rearing decisions and willing and able to provide love and care for their children; (2) both parents must evidence a continuing desire for active involvement in the child's life; (3) both parents must be recognized by the child as a source of security and love; (4) a minimal degree of cooperation between the parents must be possible.
Id. at 848.
The fourth factor of Wiseman cannot be met by the parties herein. Regarding the fourth factor, this court has previously explained what comprises "a minimal degree of cooperation" between the parents who seek shared custody:
This feature does not translate into a requirement that the parents have an amicable relationship. Although such a positive relationship is preferable, a successful joint custody arrangement requires only that the parents be able to isolate their personal conflicts from their roles as parents and that the children be spared whatever resentments and rancor the parents may harbor.
In re Wesley, J.K., 445 A.2d 1243, 1249 (Pa.Super. 1982) (emphasis supplied, citation omitted). Here, the trial court specifically concluded that the level of conflict between Mother and Father is extreme, and expressed little realistic hope that things would improve to any great extent. (Trial court opinion, 5/15/13 at 61.)
We, therefore, strike the tie-breaking provision from the trial court's order. Upon remand, we direct the trial court to consider whether, absent its imposition of the improper tie-breaking provision, Father should have sole legal custody since the trial court was essentially granting that status to him in its May 15, 2013 order.
In her second issue, Mother argues the trial court abused its discretion when it granted Father an aggressive physical custody schedule; when it failed to properly take into account child custody factor 5328(a)(2), and when it went against the advice of the court-appointed therapist, Ms. DeStefano. (Mother's brief at 13, 23.)
We begin by addressing Mother's claim that the trial court did not properly take into account Section 5328(a)(2) of the Act. That particular 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:
. . . (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.
23 Pa.C.S.A. § 5328(a)(2).
Initially, in its opinion entered on May 15, 2013, the trial court discussed factor 5328(a)(2) under the heading of "A. Abuse, " with its discussion spanning 10 pages of its 81-page opinion. The trial court re-visited the PFA petitions Mother filed against Father in 2009, 2011, and July of 2012, and the contempt petitions Father filed against Mother during the history of the case. (Id. at 12-22.) The trial court found that there was "very little that would justify MOTHER's campaign to utilize domestic violence laws as a means to completely estrange FATHER from his children." (Id. at 12.) In relation to this 5328(a)(2) "abuse" factor, the trial court related several incidents concerning Father and the Children, including the "Manheim incident" and the "shower incident."
The "Manheim incident" occurred on February 25, 2012, during a custodial exchange in Manheim, Lancaster County. Father compelled Z.B. to get into his car, and witnesses called the police. Father was charged with simple assault, and agreed to enter the Accelerated Rehabilitative Disposition ("ARD") program as part of a plea agreement. (See notes of testimony, 3/14/13 at 65, 128-130; trial court opinion, 5/15/13 at 14-19.) Cheryl Fleming-Hirner was a witness to the Manheim incident who testified at trial. (See notes of testimony, 3/15/13 at 250-256.) Father was not permitted to see Z.B. for almost a year after the Manheim incident. (Trial court opinion, 5/15/13 at 14.) Dr. Timothy D. Riley, the Children's primary care physician, testified regarding the injuries to Z.B. during the Manheim incident. (Notes of testimony, 3/15/13 at 214-216.)
In 2012, C.B. (2) alleged that Father banged C.B. (2)'s head into a wall in the kitchen of Father's home after the child allegedly used the "f" word. (Notes of testimony, 3/14/13 at 72-74. See trial court opinion, 5/15/13 at 21.) Father denied banging C.B. (2)'s head into the wall. (Notes of testimony, 3/14/13 at 74.)
The "shower incident" occurred in July of 2012, when Father allegedly shoved C.B. (2) in a corner into a wall in the shower. (Notes of testimony, 3/14/13 at 137; 3/15/13 at 216. See trial court opinion, 5/15/13 at 13, 19, 21.) During the same shower incident, Father picked C.B. (1) off the ground by his hair. (Id.) Father denied the allegations concerning both boys. (Id.) Additionally, Dr. Riley testified that C.B. (2) had also stated to him that Father had shoved a banana into his mouth when the child would not eat it. (Notes of testimony, 3/15/13 at 216.)
Mother obtained a PFA order against Father by agreement, without an admission of culpability by Father, on July 30, 2012, that prevented Father from seeing the Children for six months, expiring on January 30, 2013.(Notes of testimony, 3/14/13 at 128, 137, 226; trial court opinion, 5/15/13 at 19.) By order of the trial court in York County, Mother was awarded sole physical custody, and the parties retained shared legal custody. As a result, Father had no contact with the Children between July of 2012 and February of 2013.
The trial court found that Mother's "campaign to use allegations of abuse in order to keep FATHER from seeing his children finally found success in 2012" in the Manheim incident, for which Father was convicted, and entered ARD. (Trial court opinion, 5/15/13 at 14.) The trial court found that Z.B.'s behavior caused the Manheim incident. (Id. at 17.) The trial court found that Father's "allegedly assaultive conduct" in the Manheim incident was never tested in court, because Father stated that he could not afford to contest the charges. (Id. at 14 at n.1.) Further, the trial court found that both parents should have handled the situation in a better manner, and completely rejected Mother's allegation that the Manheim incident proves that Father is a child abuser. (Id. at 14-15, 19.)
With regard to the shower incident, the trial court found that, when the judge questioned C.B. (1) in chambers, the child did not list the shower incident among Father's bad behavior toward him. (Id. at 20.) The trial court found that C.B. (1) explained that he had forgotten to put shampoo on his head, and that Father had become angry and had physically placed shampoo on C.B. (1)'s head, then vigorously rubbed it into C.B. (1)'s hair. (Id.)
Moreover, the trial court found that Father admitted that a confrontation occurred that involved Father, C.B. (1), and C.B. (2), but that Father denied that he slammed C.B. (2)'s head against the wall. (Id. at 21.) The trial court stated:
Rather, FATHER testified that he simply disciplined [C.B. (2)] for using the "f-word" in an inappropriate manner. FATHER pointed out that [Lebanon County] Children and Youth Services conducted an investigation of the shower incident and declared that abuse was "unfounded." Based upon everything we heard in two days of testimony, we conclude that the allegations of MOTHER's July 17, 2012 PFA were exaggerated at best and fabricated at worst.
Clearly, the trial court thoroughly examined Mother's claims that Father was a "child abuser, " and rejected them. The trial court refused to weigh the abuse factor, Section 5328(a)(2), against Father. (Id. at 21, 73.) We find no abuse of discretion here.
Next, we address Mother's argument that the trial court erred when it went against the advice of Ms. DeStefano regarding the physical custody schedule awarded to Father and instead awarded Father an aggressive custody schedule.
The trial court explained that it had appointed Ms. DeStefano with the goal of reuniting Father and Z.B. (Id. at 62.) The trial court found that Ms. DeStefano supervised 90 counseling sessions with the parties and/or their children between 2011 and the custody hearing in May of 2013. (Id. at 62.) Moreover, the trial court found that Ms. DeStefano handled 97 telephone calls to and from the parties, and 28 calls to or from the parties' attorneys. Id. The trial court found that Ms. DeStefano did not believe Mother had engaged in parental alienation. (Id. at 65.)
The trial court also found that, after her testimony on March 14, 2013, Ms. DeStefano wrote a supplemental report indicating that Father's visits with the Children were more normal and less uncomfortable for the Children. (Id.) Ms. DeStefano recommended Father should undergo anger management counseling with Dr. Friedman which he did. (Id.) The trial court found that Ms. DeStefano and Dr. Friedman subsequently disagreed over whether Dr. Friedman should discharge Father from anger management counseling, with Ms. DeStefano believing that Father continued to need the counseling. (Id.) In December of 2012, based on an in camera meeting with counsel for both parties, the trial court removed Ms. DeStefano as the reunification counselor, and appointed her as the therapist for the Children. (Id. at 66 n.17.)
While the trial court accepted some parts of Ms. DeStefano's testimony, it rejected other parts of her testimony. (Id. at 67.) The trial court agreed with Ms. DeStefano that Father can be aggressive and overbearing. (Id.) The trial court did not identify the basis for its rejection of Ms. DeStefano's assessment on any particular evidence in the record. Further, based on Ms. DeStefano's testimony, the court concluded that the Children's fear of Father is genuine and legitimate. (Id.) The trial court accepted Ms. DeStefano's recommendation that family counseling should continue, and appointed her to continue in the role as family counselor. (Id. at 68.) The trial court also found that Ms. DeStefano implicitly testified and opined that Mother should retain primary physical custody. (Id. at 68.) The trial court stated that it gave significant weight to the remainder of Ms. DeStefano's testimony aside from her conclusion as to parental alienation. (Id. at 66-67.)
The trial court's May 15, 2013 custody order provided Father with alternating weekends of physical custody during the school year. Also during the school year, Father was granted one evening per week for a period of three hours. During the summer months, Father was awarded a total of five weeks of physical custody at his home in Lebanon. See Order, 5/15/13 at paragraphs 3(a), (b), (c)(ii).
According to Ms. DeStefano, she believed the Children should meet their father in a public place with someone else present. (Notes of testimony, 3/15/13 at 142). When asked if Father could start having overnight visits eventually, Ms. DeStefano replied:
I am not going to really comment to that because I would say the pattern that we have had, it hasn't been very hopeful for that. I can't say it's impossible, but at this point if [Father] keeps making comments that like whether it's an action or it's a comment that draws them away from him then. It's going to be very difficult to get to [that] kind [or] any kind of [sic] relationship like that.
Id. at 142-143. According to Mother, Ms. DeStefano believes the Children should remain with Mother the majority of the time because their father frightens and terrifies them. (Mother's brief at 23.)
We disagree with Mother's characterization of this custody schedule as aggressive. Clearly, Mother would prefer the Children not see Father at all because she does not believe it is in their best interest. The trial court, however, found that Father recognized his faults, has apologized and has successfully completed anger management counseling. Six years have elapsed from the original custody order. To keep Father away from his children by devising a lesser partial physical custody schedule, i.e., gradual reunification, will only serve to completely alienate the Children from him. The schedule contained in the May 15th order was not aggressive but was carefully thought out by the trial court. We find no abuse of discretion in this regard.
In her third issue, Mother argues the trial court erred when it ordered her to "obtain all of her prescription medications at the Medicine Shoppe located in Columbia, PA" and to provide Father a computer printout on a quarterly basis showing all of her prescriptions. We believe this issue is waived. The original custody order of October 6, 2006 provided the following:
(1) MOTHER will be required to sign any release forms necessary to enable FATHER to receive and access health insurance billing records. She will also be required to turn over to FATHER quarterly a list of her prescriptions and dosages. We believe that this provision will make it very difficult MOTHER to manipulate multiple medical providers to obtain more than a legitimate dosage of medication; (emphasis added)
At the time of the original order, the trial court provided for a one-year review period, and on August 13, 2007, the court affirmed the earlier order with two adjustments. Neither of the adjustments had anything to do with the quarterly printout of medications taken by Mother and turned over to Father. Mother cannot be heard to complain now. See Cagnoli v. Bonnell, 531 Pa. 199, 201-202, 611 A.2d 1194, 1195-1196 (Pa. 1992) (issues not raised before the trial court in the first instance may not be raised in later challenges to that court's ruling or on appeal).
Last, we address Mother's fourth issue on appeal, i.e., that the trial court erred when it ordered her to see a counselor appointed by Ms. DeStefano. Mother complains that she is already seeing a "counselor" with whom she has a relationship. (Mother's brief at 28-29.) In her brief, Mother fails to identify the particular counselor she is seeing. Mother testified, however, that she is seen by Dr. Laucks as her primary care physician for her usage of medication for pain management. (Notes of testimony, 3/15/13 at 13.)
The trial court's May 15, 2013 order provided as follows:
(2) Every single expert who testified agreed that MOTHER needs counseling for herself and that these sessions should include what was described as "addictions counseling." We will implement this suggestion. We do so by asking C. Katherine DeStefano to identify and appoint a counselor for MOTHER.[footnote]
[footnote] We ask DeSTEFANO to accomplish this appointment because she has ties to the York County counseling community and because we do not trust MOTHER to select a counselor who will hold her feet to the fire. We also request that DeSTEFANO provide a copy of this Opinion to whoever is selected as MOTHER'S counselor. (emphasis in original)
Trial court opinion, 5/15/13 at 79-80.
Mother's argument to this court is one paragraph in which she claims because she has a rapport with her unnamed therapist and believes the arrangement has been working for her, the appointment of another therapist will be detrimental to her. (Mother's brief at 29.) Mother ignores the fact that "every single expert who testified agreed that Mother needs counseling for herself" and these sessions should include "addictions counseling." (Trial court opinion, 5/15/13 at 79) We remind Mother that this court has consistently held that the discretion 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. Jackson, 858 A.2d at 1254. Indeed, the knowledge gained by a trial court who observes witnesses in a custody proceeding cannot adequately be imparted to an appellate court by a printed record. Id.
Instantly, the trial court has presided over this case for approximately seven years and there is no one more familiar with the parties and the accompanying circumstances. We have absolutely no basis to interfere with the trial court's decision that Mother engage in additional counseling. Hence, this argument is without any merit.
Accordingly, we remand for the trial court to modify its award of shared legal custody consistent with our discussion of same, and affirm as to all other claims presented.