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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
HEATHER SHARPLES

v.

JAMES P. SHARPLES

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2894 EDA 2022 Appeal from the Order Entered October 20, 2022 In the Court of Common Pleas of Chester County Civil Division at No(s): 2018

- 01294

- CU HEATHER SHARPLES

v.

JAMES P. SHARPLES

APPEAL OF: DIANE REESER AND DOUGLAS REESER : : : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 3028 EDA 2022

Appeal from the Order Entered October 20, 2022 In the Court of Common Pleas of Chester County Civil Division at No(s): 2018

- 01294

- CU

BEFORE: OLSON, J., NICHOLS, J., and McLAUGHLIN, J. MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 1, 2023 James P. Sharples (“Father”) and Diane and Douglas Reeser (“Grandparents”) appeal from the modified custody order e ntered on October 20, 2022 , following a three

- day trial

. We affirm in part and reverse in part. Father a n d Heather Sharples (“Mother”) have one daughter (“Child”) , who was born in 200 8 . Mother filed a complaint for custody in 2018 , whichJ

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resulted in a stipulated custody order giving the parents equally shared legal and physical custody of Child. Grandparents , who are Father’s parents , 1 petitioned to intervene . The court granted them standing and, in October 2019, granted them physical cus tody of Child twice a year. The parties entered another stipulated custody agreement in March 2020 , 2 which modified Grandparents ’ custodial time to one week in the summer and one long weekend in the winter , to be exercised during Father’s custodial time. The order provided that if Grandparents chose to exercise their summer week during one of Mother’s custodial week s , Father would have to cede custody to Mother during the preceding week. Father filed an emergency petition for a custody evaluation in February 2021 , citing concerns about both Mother’s and Child’s mental health

. Following an evidentiary hearing , the court ordered a custody evaluation and psychological assessment of all parties by a forensic psychologist , Dr. D awn Sheehan

. Father thereafter filed a n emergency petition for primary custody. After more conciliation conference s , the court entered a September 2021 temporary custody order , followed by a n October 2021 modified custody order. The court granted Father pr imary physical custody and reduc ed Mother ’s award to partial physical custody for three hou rs every Tuesday evening and for the duration of alternating weekends

. The order specified that

_________________ __________ ______ ____ _______ 1 Paternal Grandfather is Father’s stepfather

. See Pa.R.A.P. 1925(a) Opinion (“1925(a) Op.”), 1/9/23, at 2 n.1.

2 The court adopted the stipulation as an order in April 2020.J

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“[d]uring Mother’s overnights, Child shall have her phone and may call someone to assist in leaving the house for the purpose of diffusing the situation when the conflict escalates. Mother shall permit C hild to leave.” Custody Order, 10/28/21, at ¶ 7(d). T he order directed Mother to continue individual therapy and Child to continue therapy with a court

- ordered counselor . It further stated family therapy could begin at the recommendation of Mother’s therapist

. It altered Grandparents’ custody slightly, provi ding that they could choose their week of summer custody . It stated that if th ey chose a long weekend in the winter during Mother’s custody time , Father must provide Mother with makeup time from his schedule within 30 days. Father and Mother both filed pe tition s to modify custody in the spring of 2022

. The court entered an order in May 2 022 stating the October 2021 custody order would remain in effect

. It did modify the order to the extent that the new order allowed Child’s counselor to choose to expand Child’s individual therapy to include one or more family members, rather than allowing for family therapy to commence upon the recommendation of Mother’s therapist. 3 Father demanded a trial , and the court held hearings from September 20 to 22, 202 2. It heard the testimony of Mother, Mother’s fiancé, Father, and Grandmother , and interviewed Child in camera . The court also considered the expert testimony of Dr. Sheehan , the results of the court

- ordered custody

_________________ __________ ______ ____ _______ 3 By separate order, t he court also granted a petition Father had filed to enjoin Mother from making disparaging remarks.J

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evaluation , dated October 2021 , and the testimony of Child’s court

- ordered counselor , Jennifer Krumenacker (“Counselor Krumenacker”)

. The court issued a modified custody order

– the order under appeal

– on October 20 , 2022. 4 It eliminated Mother’s custodial weekends. However, it retained Mother’s custody times on Tuesdays evenings from 5 to 8 p . m ., and stated Child “shall not be permitted to refuse to attend or terminate Mother’s custodial time, nor request early departure or late arrival, without Mother’s express consent.” Final Order for Custody, 10/ 20/22, at ¶ 3(i). 5 The court modified Grandparents ’ custodial time such that , rather than any specific
amount or scheduled time , Grandparents could exercise custody “ [s] olely during Father’s custodial time as may be agreed between Grandparents and Father [.] ” Id. at ¶ 11(a). Grandparents were not permitted to request custody “during any part of Mother’s custodial time.” Id. a t ¶ 11 (b)

. The court ordered Child to continue individual th erapy with Counselor Krumenacker, Mother to continue individual therapy with her own therapist, and Father to begin individual co

- parenting therapy . It also directed Mother and Child to participate together in reunification therapy with a different therapi st. Paragraph 12 of the order prohibited Father and Grandparents from giving or lending Child any motorized vehicles, electronics, jewelry, or more

_________________ __________ ______ ____ _______ 4 The order was filed on October 17, 2022, but notice was sent to the pa rties on October 20, 2022. See Pa.R.C.P. 236

.
5 The court also gave Mother custody for a few hours on most holidays, and for 12 hours on Mother’s Day.J

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than $100 of cash or cash equivalents, without Mother’s express written
consent. It also forbade the parties from disclosing to Child when Mother withheld her consent for a ny gift

. By separate order, the court appointed a Parenting Coordinator for a 12

- month term

. See Pa.R.C.P. 1915.11

- 1(a). Father and Grandparents moved for reconsideration, w hich the court denied. Father and Grandparents each filed a notice of appeal. This C ourt consolidated the appeals. Father presents the following issues:
1

. Did the Trial Court commit an error as a matter of law or abuse its discretion by inappropriately applying the factors pursuant to 23 Pa.C.S. § 5328(a) contrary [to] the weight of the evidence presented at trial, in particular, factors 2, 4, 7, 8, 9, 10, and 15? 2 . Did the Trial Court commit an error as a matter of law or abuse its discretion by disreg arding the opinions of Jenny A. Krumenacker (Minor Child’s court

- ma n dated treating therapist), Dr. Dawn Sheehan (court

- appointed psychologist), and Mother’s own testimony all of whom concluded that it would be in the best interest of [Child] to have a brea k in custody with Mother, particularly after Mother failed to present any contrary expert testimony at trial? 3 . Did the Trial Court commit an error as a matter of law or abuse its discretion by disregarding the opinions of Jenny A. Krumenacker and Dr. Daw n Sheehan that reunification therapy or joint/family counseling was not recommended between Minor Child and Mother until both parties made progress with their individual therapy efforts? 4

. Did the Trial Court commit an error as a matter of law or abuse its discretion by not allowing Minor Child to adequately express her feelings, thoughts, and concerns regarding her relationship with Mother? 5 . Did the Trial Court commit an error as a matter of law or abuse its discretion by removing the provision contained in the October 28, 2021 Order providing [Child] the ability to terminate visitationJ

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with Mother during high

- conflict situations, despite expert and witness testimony supporting a continued need for this provision in Minor Child’s best interest? 6 . Did the Trial Court commit an error as a matter of law or abuse its discretion by assuming facts not of record and, sua sponte , implementing spending restrictions (by both item and price) on Father despite no party asking for such relief and no evidence or testimony at trial to justify the same? 7

. Did the Trial Court commit an error as a matter of law or abuse its discretion by failing to incorporate adequate provisions regarding Father’s ability to vacation or plan extracurricular activities with [Chil d] pursuant to Paragraphs 3(a)(i) & (ii) of the October 17, 2022 Order?
Father’s Br. at 4

- 5 (suggested answers omitted). Grandparents raise the following issues:
1 . Whether the trial court erred as a matter of law and/or abused its discretion by exceeding its adjudicatory authority under Section 5323 of the Pennsylvania Child Custody Act by restricting Grandparents’ ability to make gifts or loans to the Child where: a. The evidence did not support a conclusion that such gifts caused or would cause an ongoing risk of harm to the Child, and the trial court made no finding of ongoing risk of harm or need for safety conditions as required by Section 5323(e) of the Child Custody Act. b. Absent evidence of harm to the Child, the spending restrictions are an extraordinary invasion into the privacy of the Grandparents’ home and relationship with the Child. 2 . Whether the trial court erred as a matter of law, abused its discretion, and/or violated the Grandparents’ right to due process by restricting their r ight to make gifts or loans to the Child where: a. Mother did not request such relief from the Court; Grandparents were given no notice that spending restrictions might be imposed on them; and Grandparents had no warning that they needed to offer evidence about financial matters ordinarily irrelevant in child custody cases.J

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- b. The denial of due process resulted in a factual error that the Child’s Father and Grandparents indulge her more than Mother; and cause the Child to be too focused on material possessi ons. 3 . Whether the trial court erred as a matter of law and/or abused its discretion by modifying paragraph 5 of the order of October 28, 2021 relating to vacations, without delineating its reasons pursuant to Section 5323(d) of the Child Custody Act, den ying the Child the ability to join her Grandparents for an annual seven

- day seashore vacation in a rental property, which has been a family tradition for more than a decade. Grandparents’ Br. at 19

- 21 (answers below omitted). We have reordered the
issues r aised by both parties in our discussion below, for ease of disposition. “In reviewing a custody order, our scope is of the broadest type and our standard is abuse of discretion. ” D.K. v. S.P.K. , 102 A.3d 467, 478 ( Pa.Super. 2014) ( quoting J.R.M. v. J.E.A. , 33 A.3d 647, 650 (Pa.Super. 2011) ). We will

“ accept the factual findings of the trial court that are supported by competent evidence of record[.]” S.S. v. K.F. , 189 A.3d 1093, 1098 (Pa.Super. 2018).

“ [ W]ith regard to issues of credibility and weigh t of the evidence, we must defer to the presiding trial judge who viewed and assessed the witnesses first

hand.” D.K. , 102 A.3d at 478 (quoting J.R.M. , 33 A.3d at 650 ). We may

reverse the court’s custody decision only if it “involve[s] an error of law, or [is] unreasonable in light of the sustainable findings of the trial court

. ” Id. (quoting J.R.M. , 33 A.3d at 650 )

. A trial court must determine custody based on the best interest of the child. T.M. v. H.M. , 210 A.3d 283, 288 (Pa.Super. 2019)

. A non

- exhaustiveJ

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list of 16 factors for the court t o consider when making a custody decision is statutorily prescribed: § 5328. Factors to consider when awarding custody (a) Factors.

-- In ordering any form of custody, the court shall determine the best inte rest 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 betw een 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 safeguar ds 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, cons istent and nurturing relationship with the child adequate for the child’s emotional needs.J

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- (10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child. (11) The proximity of the residences of the parties. (12) Each party’s availability to care for the child or ability to make appropriate child

- care arrangements. (13) The level of conflict between the parties and the willingness and ability of the parties to cooperate with one anot her. 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 phys ical condition of a party or member of a party’s household. (16) Any other relevant factor. 23 Pa.C.S.A. § 5328(a). The court has discretion to determine the relative weight to give each factor. T.M. , 210 A.3d at 289. When determining whether to a ward custody to a g randparent with standing, the court must consider the foregoing factors in conjunction with three additional factors : (i) the amount of personal contact between the child and the party prior to the filing of the action; (ii) whether the award interferes with any parent

- child relationship; and (iii) whether the award is in the best interest of the child. 23 Pa.C.S.A. § 5328(c)(1) . G randparents bear the burden of demonstrat ing that their exercise of custody is in the child’s best interest a nd not to the detriment of the parent

- child relationship. D.R.L. v. K.L.C. , 216 A.3d 276,J

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279 ( Pa.Super. 2019) . There is a presumption that custody will be awarded to a parent over a nonparent, and th at presumption may only be rebutted by clear and convinc ing evidence. 23 Pa.C.S.A . § 5327

. I. Mother’s Partial Custody Father first argues the court a b used its discretion in failing to grant him sole custody after weighing the custody factors , a n d takes issue with t he weight the court assigned to factors 2, 4, 7, 8, 9, 10, and 15 . Father argues
t he court erred in not giving more weight to factor 2 ( present and past abuse by a part y and continued risk of harm ) , and factor 4 ( need for stability and continuity ) . Father asserts that Child does not have safety or stability when in Mother’s care. He claims Child suffers from skin and eyebrow picking , depression, and anxiety due to conflict when in Mother’s custody. He cites a portion of the custody evaluation stating that the Mother

- Child rel ationship is “highly maladaptive and chaotic,” and Counselor Krumenacker ’s testimony that the relationship is “toxic and chaotic.” Father’s Br. at 13 , 15

- 16 (quoting Comprehensive Custody Evaluation (“Evaluation”) , 10/19/21 , at 73 , and N.T., 9/20/22 , at 41 )

. Father further argues that the court abused its discretion when weighing factor 7 , Child’s preference . Father asserts that the court should have weighed the Child’s preference more heavily, pointing out that the previous trial judge, Dr. Sheehan, an d Counselor Krumena c ker all described Child as bright, mature, and respectful. Id. at 19. Father claims that the court ’s findings that Child is self

- centered, undisciplined, entitled, and overindulged are against theJ

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weight of the evidence

. Father relatedl y argues t he court’s question ing of Child
in camera demonstrated bias against Child and that the court did not foster an environment where Child could express her true feelings and concerns. Id. at 37. 6 According to Father, the court also abused its discretion when weighing factor 8 ( one parent’s attempts to turn the child against the other parent )

. Father argues the evidence demonstrated that Father attempted to encourage Child to engage with Mother duri ng her custody periods , whereas Mother made false accusations against him to third parties

. Id. a t 21

- 23. Regarding factor 9 (maintain ing a loving, stable, consistent and nurturing relationship with the child) , Father asserts that the Evaluation shows tha t Mother does not provide a stable, consistent, and nurturing relationship

_________________ __________ ______ ____ _______ 6 Father offers the following as examples of the court’s inappropriate questioning:

• “ You said you don't have any interaction with [Mother] when you are there so how is your relationship stressing you out when you are not interacting with her? ”

• “ But you sit in your room by choice, correct? ”

• “ You do have friends in the neighborhood you could go visit, co rrect? ”

• “ Would you like to fix the relationship with your mom ?”

• “ Did you ever try talking to your mom? ”

• “ Do you report back to your dad about what happens at your mom ’ s house? ” Father’s Br. at 38

- 39 (citations to N.T. , 9/22/22, at 53

- 56 omitted)J

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with Child. Id. at 23. Similarly, regarding factor 10 (meeting daily needs) , Father claims that the record supports a conclusion that Mother cannot currently provide f or Child’s daily needs . He maintains that Dr. Sheehan testified that extended periods of time with Mother produce “adverse childhood experiences” which have long

- term negative consequences. Id. at 25

- 26 (quoting Evaluation at 73)

. As for factor 15 (parent’s mental and physical condition ) , Father asserts that Mother suffers from anxiety, complex PTSD, substance abuse (cocaine, alcohol, marijuana), and is promiscuous. Id. at 26. Father claims Mother testified she does not tak e h er prescribed medications, and that Dr. Sheehan opined that Mother can not regulate her emotions without her medications and requires further individual therapy before she can address her relationship with Child. Id. at 26

- 27. More generally, Father argues that the court abused its discretion in not
gra n ting him sole custody because he claims Dr. Sheehan and Counselor Krumenacker agreed that a complete break in Mother ’s custody was warranted. Id. at 16

- 17 (citing R.882a ( Evaluation at 78 ) and N.T., 9/20/22, at 41). He contends that Mother did not present any evidence to contradict the ir opinion s on these points , and the court abused its discretion in disregarding the uncontradicted testimony

. Id. at 28 , 32

- 33

. Father argues the court erred in d ismissing Counselor Krumenacker’s opinion on the grounds that she is not an expert

. Father argues she has a master’s degree and a license, possesses knowledge beyond the average lay person, and wasJ

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appointed Child’s counselor by the court and ordered to re main involved

. Id. at 29

- 3 1 (citing Pa.R.E. 702)

. Father claims Mother even agreed a break was warranted. Id. at 29 (citing N.T., 9/21/22, at 83

- 84). We find Father is due no relief on this issue

. First, while Mother testified that she agreed with Counselor Krumenacker’s recommendation that some break in custody was warranted, she also stated she believed she and Child were already taking the break during the month preceding trial . Mother stated she did not agree with formally taking away custody indefinitely, which she anticipated would only spur further litigation . N.T., 9/21/22, at 79, 83

- 84 , 142

. The court also considered that, because Child had not seen Mother for the month preceding the hearing , Child had already had a “break” in custody. 1925(a) Op. at 3

- 4, 8. Next, while Father relies heavily on the expert opinion of Dr. Sheehan , t he court explained that it took the Evaluation and Dr. Sheehan’s testimony with a grain of salt, considering that the Evaluation “was produced nearly one year ago and is somewhat stale.” Memorandum in Support of Custody Order (“Trial Ct. Mem.”), 10/20/22, at 2 n.1. The court further found that the Evaluation had “dimin ished value” in helping it assess the current state of the parties and their relationships because Father had allowed Child to read it , which , the court found , altered and exacerbated the conflict between Child and Mother. See id. ; 1925(a) Op. at 6 (citing Father’s Pe t. to Modify, 3/8/22,
at ¶ 7 )

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Nevertheless, w hile it did not wholly accept Dr. Sheehan’s opinions , the
court “agree[d] with Dr. Sheehan’s conclusion that the reports of conflict between Mother and [Child], Mother’s maladaptive tendencies and the degree of [Child]’s emotional distress should bear significant weight.” Trial Ct. Mem. at 12. It acknowledged that “Mot her appears to suffer from anxiety, trauma

related symptoms and maladaptive tendencies that negatively impact her insight, judgment, coping skills and parenting skills.” Id. at 11. At the same time, the court observed that the negative incidents b etween C hild and Mother described in the Eval u ation had not required any intervention by protective services. Id. at 4. It also observed that the Evaluation stated Child’s behavioral issues are not caused solely by her relationship with Mother, but also by stress due to “peer issues,” custody litigation, and Grandparents’ intervention in the custody case. Id. at 11. It further o b served tha t the E val u ation did not actually recommend a b reak in Mother’s custody . Rather, the court noted, it stated tha t a partial custo dy schedule would remain appropriate “so long as Mother engages in appropriate
treatment recommen d ations and Child remains in counseling.” 1925(a) Op. at 8

- 9 (quoting Evalua t ion a t 77). 7 The court noted that Mother is currently participating in individual therapy and was ordered to continue doing so. Id. at 9

. Father’s argument that the court failed to give proper consider ation and weight to Dr. Sheehan’s expert opinion holds no water.

_________________ __________ ______ ____ _______ 7 The page of the Evaluation cited by Father does not address a break in custody. See R.882a ( Evaluation at 78 )

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In contrast, the court did not find Counselor Krumenacker ’s testimony to be credible and that it found her to be biased against Mother

. Trial Ct. Mem.
at 3 ; 1925(a) Op. a t 9 n.6. It recounted two times whe n Counselor Krumenacker testified that Mother had behaved inappropriately, which contradicted or over embellished Child’s testimony. Trial Ct. Mem. at 3

- 4. It also considered that Counselor Krumenacker tells Child Mother “needs more work,” which the court f ound “perpetuate [s] a negative narrati ve about Mother.” Id. at 4 ; s ee also 1925(a) Op. at 6

- 7

. The court also acknowledged that Father did not offer Counselor Krumenacker as an expert witness. 1925(a) Op. at 9 n.6.
We defer to the court’s credi b ility finding regarding Counsellor Krumenacker and the weight it assigned her testimony. We find no merit to Father’s argument that the court committed an error of law when stating that Counselor Krumenacker was not an expert witness , as Father did not offer her

as one. See N.T., 9/20/22, a t 39 (counsel objecting to a question posed to Counselor Krumenacker on grounds that “she’s not here as an expert”). In addition to considering Dr. Sheehan’s opinion , the court found it would not be in Child’s best interests to grant Father sole custody because doing so would place Child “in the echo chamber of Father and Grandparents’ disparaging comments regarding Mother.” Trial Ct. Mem. at 9. The court was “not convinced that Father’s over

- indulgence of [Child], coupled with his undermining of her rela tionship with Mother, is substantially better than the conflict [ed] relationship [Child] has with her Mother.” Id. While the court didJ

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not specifically mention the evidence Father claims proves that he encourages contact with Mother or that Mother has tried to turn Child against him, the court placed great weight on the fact that Father let Child read the Evaluation 8 and Child’s own test imony that Father and Grandparents make negative statements about Mother. Id. at 8. It also found that “Father and Grandparents have increased the level of conflict by empowering [Child] to demand to be picked up when she does not get her way with Mother a nd disparaging Mother.” Id. at 10

. Regarding Child’s preference for custody with Father , the court acknowledged this preference and noted Child’s intelligence. Id. at 6. However, it also found Child was “self

- centered, which is not atypical for a teenager, undisciplined, entitled, and overindulged.” Id. It considered her preference for staying with Father in light of the fact that Child “ generally only needs to ask for something in order to receive it and she is rarely disciplined , ” which it viewed in contr ast with Mother’s home, where she must share a bathroom and common living areas. Id. It also considered Child’s preference for Father in view of Father ’s allow ing her to read the Evaluation , which

_________________ __________ ______ ____ _______ 8 T he Evaluation s t a t ed t ha t “no party should discuss any matters related to the legal or evalua t ive proces s of this case with the child.” 1925(a) Op. a t 5 ( q uoting Eval u a t ion at 78). Dr. Sheehan testified that she was concerned that Father allowed Child to read the E val u a t ion. Id. (quoting N. T ., 9/21/22, at 17

- 18). The court found Father did not testify cred ib l y when he s t ated he had only allowed Child to read a few sentences of the Evaluation from the computer screen while she looked o v er his shoulder. Id. a t 6.J

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“provided a narrative to avoid the more mundane trappings of Mother’s home” and reinforced Father’s negative statements about Mother

. Id. at 7 , 8. The court’s findings have a basis in the record, and we defer to the trial court’s credibility determinations and the weight it assigned to the various fac tors

. T he court considered the evidence on which Father relies

. It simply did not give it the weight that Father would have liked

. Overall , g iven the court’s sustainable findings, we do not conclude that the court’s decision to deny a complete b reak in Mother’s custody and allow Mother to retain three hours of custody a week 9 to be unreasonable or a n abuse of discretion

. In addition , w e find no merit to Father’s argument that the court abused its discreti on when conducting the in camera interview of Child. While any questioning by an authority may be intimidating to a 14

- year old child, t he transcript shows t hat the court asked Child objective, impartial questions

a b out her perceptions of and interactions with both Mother and Father . It also
gave Child multiple opportunities to provide supplemental information

. See
N. T. , 9/22/22, at 3

- 57. Father further argues that the court erred in not including in the custody order any language, such as was included in the October 2021 order, that would give Child the ability to terminate visitation with Mother during high

conflict situations

. Father’s Br. at 40

- 42.

_________________ __________ ______ ____ _______ 9 With additional time on holidays.J

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We find no merit to this argument

. The previous order stated that , “[d]u ring Mother’s overnights, Child shall have her phone and may call someone to assist in leaving the house for the purpose of diffusing the situation when the conflict escalates. Mother shall permit child to leave.” Custody Order, 10/28/21, at ¶ 7(d)

. Howeve r, t his language by its terms applies only to overnight visits, and the instant order does not include any overnights with Mother

. Moreover, while t he instant order states Child “shall not be permitted to refuse to attend or terminate Mother’s custodial ti me, nor request early departure or late arrival, without Mother’s express consent , ” Final Order for Custody, 10/20/22, at ¶ 3(i ) , t his provision does not expressly address emergency situations

. Rather, it serves as a counterbalance to the court’s finding that Child regularly uses her ability to terminate visits as leverage and

was intended to prevent any further conflict between the parties. Se e 1925 (a) Op. a t 12 (“ T he trial court was and remains unwilling to provide Child with a cudgel tha t can b e used whenever it appears tha t Mother may deny her undivided attention, a request, demand, or threaten discipline

. Creating or permitting such a dynamic is no t in the b es t in t erests of Child”). Importantly, the order provides for Child to conta ct the non

- custodial parent , and vice

versa . See Order, 10/20/22, at ¶ 10 (a)

- (c). The order is not unreasonable or

a n abuse of discretion.J

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- II. Reunification Therapy Father contends that the court abused its discretion in ordering Child and Mother to participate in reunification therapy. According to Father, both Counselor Krumenacker and Dr. Sheehan recommended against joint or family therapy until Mother made more progress in her own therapy and reunification therapy was recommend ed by the individual therapists

. Father’s Br. at 33 (citing N.T. , 9/20/22, at 38 ; N.T

. , 9/21/22, at 12 ; Evaluation at 7 8 ). Father cites Counselor Krumenacker’s testimony that reunification therapy will not work until Mother understands why her relationship with Child is not working

. Id. at 34 (citing N.T., 9/20/22, at 45, 62

- 63 ) . He also cites a portion of the Evaluation stating Dr. Sheehan’s belief that “joint/family counseling would be counterproductive for both Mother and Child.” Id. (citing Evaluation
at 73). Father argues that the court erred in disregarding the expert testimony and cherry

- pick ing a portion of the Evaluation to justify its decision, while simultaneously claiming Dr. Sheehan’s opinion in the Evaluation was stale

. Id. at 35. In its Rule 1925(a) opinion, the court explained that it order ed reunification therapy because the Evaluation states that Heather Goldner Kinsey , JD, LMFT, who mediated a session between Mother and Child in August 2021, recommended reunification therapy to Dr. Sheehan

. 1925(a) Op. at 10 & 10 n.7. ; see also Evaluation at 56. The court also observed that while Dr. Sheehan was opposed to joint counseling at the time she authored the Evaluation , Dr. Sheehan did not expressly testify she was opposed toJ

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reunification therapy at the time of t rial . 1925(a) Op. at 10. 10 The court also considered that Child testified in camera that she does not know much about Mother. Id. at 10

- 11 (citing N.T., 9/22/22, at 19). The decision to require reunification therapy does not involve an error of law and is not unreasonable. There is support in the record for the court’s decision to order the therapy , even if does not prove to be immediately effective

. III. Father’s /Grandparents’ Vacation Custody Father argues that by allowing Mother to exercise custody every Tuesday night, the court has interfered with Father’s ability to plan a week

long vacation with Child to take place on a calendar week, and in particular ,
an a nnual shore vacation with Grandparents. Father’s Br. at 51

- 52. Grandparents similarly argue that eliminating their dedicated week of custody time is not in Child’s best interest and that the court failed to delineate its reasons for doing so

. Grandparents ’ Br. at 84

- 93

. They point out that no party petitioned the court to modify the provisions regarding their exercise of custody. They also claim the court committed an error of law in concluding that Section 5328(a) is not applicable to their request for custody. Id. at 89 (quoting 1925(a) Op. at 22).

_________________ __________ ______ ____ _______ 10 Father cites Dr. Sheehan ’s t estimony that at the time she authored the Evaluation, she recommended Mother “needed pretty intensive therapy to address her issues before she could have a healthy relationship with her daughter [.]” N.T., 9/21/22, at 12. Dr. Sheehan testified she had not received any f urther information that could put her in the position to alter her previous recommendation. Id. at 12

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We find Father is due no relief. As t h e trial court pointed out , Father has

cus t ody of Child roughly 98% of t he time, which provi d es him “more than an adequate amount of time t o take a vac ation.” 1925(a) Op. at 4, 14. Indeed, nothing in the custody order prevents Father from taking Child on vacation from Wednesday morning through Tuesday morning. The court did not abuse its discretion. Regarding Grandparents , the court found that their int ervention in the custody matter for purposes of their annual vacation “is a source of stress” for Child. Trial Ct. Mem. a t 5, 12 ; see also 1925(a) Op. a t 24 (citing N. T

. , 9/20/22 , at 174). The court observed that in the past, Grandparents ’ request s to exercise custodial time during Mother’s time ha ve resulted in conflict. Trial
Ct. Me m . at 13. The court recounted that Dr. Sheehan recommended that if Mother’s custody remains limited, Grandparents can negotiate their custody
time with Father ; the cour t also found that Grandparents “have unfettered access to [Child] during Father’s custodial time.” Id. ; 1925(a) Op. at 5 n.5 ( citing Evaluation at 78)

. Given these findings, which are supported by the record, we see no abuse of discretion in the court’s determination that Mother may exercise custody every Tuesday night, at the expense of Grandparents’ ideal weekend

to

- weekend shore vacation

. The court found that Grandparents have unlimited access to Child during the 98% of the time that Fa ther exercises custody, and that scheduling Grandparents’ custody as a separate week was an unnecessary source of conflict. Its decision to remove that source of conflictJ

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was not unreasonable. Grandparents can take Child on a nearly week

- long
vacation , fro m Tuesday night to the following Tuesday afternoon, or can take a vacation during the calendar week if they return Child to Mother for her visit

on Tuesday evening. The court did er r in stating the factors under Section 5328(a) are not relevant when deter mining Grandparents’ custody . Those custody factors are to be considered in conjunction with the factors specific to grandparents under Section 5328(c). See D.R.L. , 216 A.3d at 2 80

. Nonetheless, we do not find the error warrants reversal in this case , as none of the factors of Section 5328(a) would render the court’s decision an abuse of discretion. Grandparents have not carried their burden to prove their calendar

- week

- long exercise of custody is in Child’s best interest and not to the detriment of the pa rent

- child relationship , and we therefore affirm the court’s decision to relegate their custody time to that which Father shares with them.
IV. Spending Restrictions Both Father and Grand parents contest the court’s decision to limit their spending on Child, and the court’s authority to do so. Father asserts that the court’s conclusion that he provides Child with a lavish lifestyle and buys Child’s affection is not supported by the record and disregards the evidence of the actual reasons for the poor re lationship between Child and Mother , which Father asserts are “Mother’s inability to effectively convey . . . love, attention, and affection.” Father’s Br. at 45.J

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Father also argues that the spending restriction is impractical and unworkable. See id. at 4 8

- 50. For example, Father queries whether he can contribute more than $100 per month to Child’s education fund without Mother’s approva l, and what he will tell Child regarding her birthday gifts , for example, as the order prohibits him from disclosing when Mother has withheld consent for a given purchase. He also points out that he would have to involve the court in every purchase to which Mother does not consent, and that Mother does not need to give any reason for withholding consent. Fathe r also stresses that Mother did not request a cap on spending , and that the spending issue was not central to the custody issue. Grandparents argue t he trial court did not have authority to impose a spending restriction because it did not find there was a risk of safety or harm to Child. Grandparents’ Br. at 45

- 46 (citing Section 532 3 (e)). According to Grandparents, the best

- interest standard does not grant the court unlimited
power , and due process prohibits the court from micromanag ing child

- rearing deci sions. Id. at 48

- 49 (cit ing Troxel v. Granville , 530 U.S. 57, 58 (2000)). They further contend the court lacked authority to restrict spending sua sponte , and quote Mother’s testimony that she does not feel the need to compete with Grandparents’ spending. Id. at 55

- 56 (quoting N.T. , 9/21/22,
at 153 ). Grandparents also argue the record does not support the trial court’s decision. They assert Child does not receive excessive gifts, and that she testified that Father and Grandparents occasionally refuse when she asks forJ

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something . They point out Child did not testify as to how frequently she asks for something, or how extravagant her requests are. Grandparents echo Father’s argument that the order is broad and vague , and question whether they can lend Child their car for a trip to the grocery store , and what they would be allowed to tell Child if, for example, Mother did not give consent to buy Child a graphing calculator for school. Id. at 65

- 66. Grandparents also argue the court’s imposition of a spending restriction deprived them of procedural due process. They assert that because no party petitioned the court to intervene on this issue, Grandparents had no notice that it would be decided by the court

. They claim that although their spending is mentioned i n passing in the 78

- page Evaluation, it is not among the “Relevant Findings and Impressions,” the custody factors, or the recommendations. Id. at 69

- 70. They argue that parties’ spending is typically only evaluated in custody cases where there is poverty, relocation, or attempts to influence a child’s testimony

– none of which was present here. They further claim that because they did not know they needed to present evidence on this issue , they had no opportunity to be heard. Grandparents a ssert that had they had proper notice, they would have presented evidence to rebut the factual conclusions the trial court dr ew solely from Child’s in camera testimony , such as the respective sizes of the parties’ homes, the cost of the treehouse, which Grandparents claim Grandfather built himself, or the dress Child wore to court , which Grandparents claim was from a sales rack at Macy’s and purchased by Father

. Id. at 73

- 74. Regarding anyJ

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assertions of overindulgence of the Child on their part, Grandparents assert they would have presented rebuttal evidence of their house rules for Child, including chores and discipline

. The trial court found that Grandparents have no substantive due process rights in relation to custody of Child. 1925(a) Op. at 15

- 16. It found that Grandparents were not deprived of procedural due process because they had notice of the trial and an opportunity to b e heard and call witnesses. Id. at 16. It stated Grandparents had “notice that their spending on Child may be at issue based on the [Evaluation] .” Id. at 17. 11 Factually, t he court found “[Child] is very oriented towards the material” and that Grandparen ts “overindulge [Child] with material benefits , ” based on Child’s in camera statements to the court

. Trial Ct. Mem. at 5 , 6. It recounted, At Father’s house [Child] enjoys her own bedroom, bathroom, a basement set up as an art studio and a “she shed” in a living

quarters over the garage. She generally only needs to ask for something in order to receive it and she is rarely disciplined. The same is true of Grandparent s’ home, which is larger than her Father’s home and includes a treehouse. Grandparents do not discipline [Child], and she generally need only ask for something to receive it. During her interview with the Court, [Child] made a point of informing the Court that her Grandmother bought her the new dress she was wearing the night before, because she “didn’t have anything to wear to court.” Mother does not provide this level of material indulgence to [Child].

_________________ __________ ______ ____ _______ 11 The court also found Grandparents waived their due process claims by failing to make specific allegations to support their due process argument in t heir Rule 1925(b) statement. However, as Grandparents raised th e issue in their motion for reconsideration, and the court addressed its merits in its Rule 1925(a) opinion, we find waiver inappropriate.J

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Id. at 6

- 7. The court similarly recalled Child’s in c amera statement that she need only ask Father for something to receive it. 1925(a) Op. at 13. In addition to Child’s in camera statements, the court made factual findings on this issue , based on the Evaluation and Grandmother’s testimony :

• Friends of Gran dparents inform ed Dr. Sheehan “Child is a bit overindulged at times by her grandparents, but that this is not excessive.”

• Mother told Dr. Sheeha n, “ [A] s long as I was spending money, [Child] was fine. As soon as I said no, she rejects, refuses to participate, or take pictures; then she calls [Grandparents] and they attack me.”

• Grandmother t estified that “maybe, we’re Switzerland. We are the ones that sa y for breakfast if you want a pi e ce of chocolate, that’s fine. It’s that kind of comfort where she just feels safe always , ” and told Dr. Sheehan that Child “likes to have undivided attention at times .”

• Grandfather told Dr. Sheehan that “we decide what to do in life based on [Child]

. ”

• Dr. Sheehan concluded that Grandfather is preoccupied with Child and that Child sees Grandmother as a mother figure

. Id. at 17

- 19. From these findings , the court concluded that imposing a spending
restriction on Father and G randparents would be in Child’s best interest. It relied on the Pennsylvania Supreme Court’s statement in Colonna v. Colonna , 855 A.2d 648, 651 n.5 (Pa. 2004), that “the temptation for the well

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off parent to buy the affection of the children, and the tende ncy of the children to favor the parent who provides them with a more attractive lifestyle are factors that do not serve the best interests of the children.” Id. at 19. We find the trial court abused its discretion in restricting Father ’s and Grandparents ’ spending. The parties had insufficient notice that the court would be entertaining a cap, and the imposition of a cap was unreasonable. 12 Due process requires notice and an opportunity to be heard “at a meaningful time in a meaningful ma nner.” Everett v. Parker , 889 A.2d 578, 580 ( Pa.Super. 2005) (citation omitted). Notice is required to ensure “ that each party is provided adequate opportunity to prepare and thereafter properly advocate its position, ultimately exposing all relevant facto rs from which the finder of fact may make an informed judgment.” Id. (citation omitted). Where facts are at issue, due process almost always “ requires an opportunity to confront and cross

- examine witnesses.” E.B. v. D.B. , 209 A.3d 451, 463 ( Pa.Super. 2019) (citation omitted). “[A] bsent adequate notice or opportunity to prepare, neither [this Court] nor the trial court can assume that the parties have either sufficiently exposed the relevant facts or properly argued their significance .” Id. at 464 (citation omitted).

_________________ __________ ______ ____ _______ 12 Because we reverse on this basis, we need not addre ss whether the court o therwise had authority, in a custody dispute, to impose spending restrictions on the parties where the child’s safety was not at issue

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No one petitioned the court to impose a spending restriction or argued for one at trial

. When asked whether she was bothered by Grandparents ’ expenditures, Mother testified, Maybe in the beginning because I felt like I had to compete, but I’ve ac cepted that

– again, like I said, I can’t control them . I can't control what other people have. You know, I'm just going to provide what I can provide. If [Child] can't accept that, that's something that we can work on. But I'm happy with what I have becau se m oney doesn't buy love or happiness. N.T., 9/21/22, at 153. Nor did any witness recommend a spending restriction , and t he portions of the Evaluation on which the trial court relies were in sufficient to put the parties on notice that the court might impose a spending
restriction. See Everett , 889 A.2d at 580

- 82 (finding Mother was deprived due process when court modified custody even though Mother was not served with meaningful notice of the hearing and Father’s request for custody was on third page o f his contempt petition). Furthermore , there was inadequate support in the record for the
restriction. The only evidence regarding Father’s and Grandparents’ expenditures came from Child’s in camera interview. But even her testimony did not address the amount of money Father or Grandparents spend on her. Child was not subject to cross

- examination. The record does not support a finding that Child is “spoiled.” Moreover, e ven if Child’s testimony was sufficient t o support a conclusion that it would be in Child’s best interest if Father and Grandparents spent less money on her , the resolution imposed by the court was notJ

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reasonable. The record resoundingly supports the conclusion that creating conflict between the parties is not in Child’s best interest. This was even part of the court’s rationale in forbidding Father and Grandparents from attempting to negotiate vacation time with Mother. Yet the court gave Mother exclusive control over Grandparents ’ and Father ’s ability to spend more than $100 on Child . This is not a reasonable directive . The likelihood of ensuing conflict is high , and the preexisting conflict will likely be exacerbated by requiring Father and Grandparents to ask Mother’s permission for expenditur es over $100

. For the foregoing reasons, we vacate this portion of the order. Order vacated as to paragraph 12 . Order affirmed in all other respects.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/1/2023