J-S18037-20

2020 PA Super 159

C.L.

v.

M.P. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1958 MDA 2019

Appeal from the Order Entered November 15, 2019

In the Court of Common Pleas of Lackawanna County Civil Division at 

No(s): 2019-FC-41210

C.L.

v.

M.P. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1959 MDA 2019

Appeal from the Order Entered October 29, 2019

In the Court of Common Pleas of Lackawanna County Civil Division at 

No(s): 2019-FC-41210

BEFORE: KUNSELMAN, J., KING, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED JULY 08, 2020

Appellant, M.P. (“Mother”), files these consolidated appeals from the 

trial court’s October 29, 2019, order appointing a guardian ad litem (“GAL”) 

pursuant to Pa.R.C.P. 1915.11-2, and including access to mental health 

____________________________________________

* Former Justice specially assigned to the Superior Court.
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records, as well as the trial court’s November 15, 2019,

1 order granting in 

part, and denying in part, Mother’s Petition for Emergency Special Relief 

Seeking Reconsideration, providing the GAL access to mental health records 

from the last three years for both Mother and Appellee, C.L. (“Father”), 

pursuant to 23 Pa.C.S. § 5334, with restrictions as to disclosure and 

dissemination by the GAL, as well as the ability to object to the GAL’s 

testimony and/or report or recommendation. After review, we affirm.

The trial court has set forth the relevant procedural history as follows:

On August 23, 2019, [Father] filed a Petition for Custody 

and a Petition for Emergency Special Relief in Custody pro se. 

[Father] alleged in both petitions that “[t]he mother of our child, 

[Mother] has become increasingly prone to erratic and hostile 

outbursts toward me in front of our child.” [Father] also alleged 

that “[Mother] had an extensive mental health history . . . and has 

refused to seek any further treatment.” Additionally, [Father] 

alleged that [Mother] “refused a suggested consultation . . . for 

post-partum depression/psychosis.” Further, [Mother] “has been 

regularly dissociating to the point of forgetting big stretches at a 

time or where she is. . .” according to [Father]’s averments. 

[Father]’s Petition for Emergency Special Relief in Custody was 

granted ex parte . . . and scheduled for a hearing. Under [the] 

____________________________________________

1 While the docket reflects a filed date of October 29, 2019, and November 

15, 2019, there is no notation on the docket that notice was given and that 

the orders were entered for purposes of Pa.R.C.P. 236(b). See Frazier v. 

City of Philadelphia, 557 Pa. 618, 621, 735 A.2d 113, 115 (1999) (holding 

that “an order is not appealable until it is entered on the docket with the 

required notation that appropriate notice has been given”); Pa.R.A.P. 108(a) 

(entry of an order is designated as “the day on which the clerk makes the 

notation in the docket that notice of entry of the order has been given as 

required by Pa.R.C.P. 236(b)”). Thus, the orders were not entered and the 

appeal period not triggered. Although we consider the matter on the merits, 

we caution the Court of Common Pleas of Lackawanna County as to 

compliance with the rules with regard to the entry of orders.
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Order, [Father] enjoyed temporary sole physical and legal custody 

of [Child].

Through counsel, [Mother] filed a Petition for Emergency 

Special Relief in Custody on August 27, 2019. [Mother] likewise 

alleged serious concerns regarding [Father]’s mental health and 

alleged physical, mental, and emotional abuse. Among [Mother]’s 

allegations of abuse were that: 1) [Father] was emotionally 

controlling and manipulative regarding who could see [Child]; 2) 

[Father] coerced [Mother] into severing ties with her parents; 3) 

[Father] talked to [Mother] in a degrading and manipulative 

manner in front of [Child]; 4) [Father] threatened to leave 

[Mother] and take [Child] as punishment for visiting her family; 

and 5) [Father] locked [Mother] out of the marital home and 

attempted to have her committed.

[Mother] also alleged that [Father] suffered from mental 

health conditions and was playing psychiatrist or gaslighting her. 

For example, [Mother] alleged that [Father] diagnosed [Mother] 

with “dissociative identity disorder” and tried to convince [Mother] 

that she suffered from this condition. Moreover, [Mother] put 

forth allegations that [Father] suffers from schizotypal personality 

disorder and was not taking medication or treating. [Father]’s 

disorder manifested itself in bizarre alleged behavior, including 

telling [Mother] that Maternal Grandfather “pimped [Mother] out 

to his friends while she was unconscious[,]” and that [Father] was 

jealous of the sexual relationship [Mother] enjoyed with Maternal 

Grandfather according to [Mother]’s petition. [Mother] further 

alleged at one point that [Father] threw himself on the ground and 

ripped at his clothing over a dispute as to whether Maternal 

Grandparents could see [Child] and carved the letter M into his 

arm for “no apparent reason” while [Mother] was otherwise caring 

for [Child]. “All of the above behaviors exhibited by [Father,]” 

[Mother] alleged, “call into question his mental health and his 

ability to adequately and safely care for the minor child.”

[The court] denied [Mother]’s Petition for Emergency 

Special Relief in Custody ex parte and the matters were 

consolidated for hearing before the [c]ourt. The parties, however, 

agreed to allow [Mother] periods of partial physical custody with 

no overnight periods pending the hearing on the petitions. The 

parties agreed that [Child] should have no contact with Maternal 

Grandparents.
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Trial Court Opinion (“T.C.O.”), 12/17/19, at 2-3 (citations to the record 

omitted).

Hearings were held on the parties’ cross-petitions on September 10, 

2019,

2 and October 28, 2019. Both Mother and Father were present and 

represented by counsel. Father testified on his own behalf and presented the 

testimony of his sister, as well as that of Mother, as of cross-examination. 

Additionally, Mother testified on her own behalf. 

[Mother]’s testimony was not concluded. After the October 

28, 2019[,] hearing, [the court] appointed Andrew Phillips, Esq.[,] 

as Guardian ad Litem (“GAL”) of [Child] pursuant to 23 Pa.C.S. § 

5334 due to the high conflict in the family and the sensitive nature 

of the allegations against each party and others associated. The 

Order appointing the GAL was a form order pursuant to Rules 

1915.11-2 and 1915.21 and contained language that allowed the 

GAL to access both parties’ psychological or psychiatric charts, 

including evaluations, progress notes, test evaluations, and 

discharge summaries.

[Mother] then filed a Petition for Emergency Special Relief 

Seeking Reconsideration to Entry of the October 29, 2019[,] Order 

Appointing a Guardian ad Litem in the Nature of a Motion for the 

Court to Strike Language from Said Order Pertaining to Mother’s 

Release of Mental Health Records & Mental Health Treatment 

Records to the Guardian ad Litem & Motion to Strike Mother’s 

10/28/2019 Mental Health Testimony from the Record (“Petition 

for Reconsideration”) citing the Mental Health Procedures Act, the 

Psychologist-Patient Privilege, and relevant case law. Following 

____________________________________________

2 We observe that the cover sheet for the Notes of Testimony of this hearing 

indicates a date of August 15, 2019. An amended cover sheet reflecting a 

date of September 10, 2019, is contained in the certified record. We further 

note that Plaintiff’s (Father’s) Exhibit 1 was not included as part of the certified 

record, or the reproduced record. Nevertheless, the exhibit was summarized 

on the record. See Notes of Testimony (“N.T.”), 9/10/19, at 36.
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oral argument on [Mother]’s Petition for Reconsideration,[3] [the 

court] issued two Orders on November 15, 2019[,] granting 

[Mother]’s Petition for Reconsideration in part and sealing this 

docket. Specifically, [the court] limited the Guardian ad Litem’s 

access to three years of both parties’ mental health records and 

ordered non-disclosure of such records, tailoring the Order to the 

testimony in the case. [The court] also directed that [Father] and 

[Mother] submit to mental health evaluations and/or testing 

through one of two different providers pursuant to Pennsylvania 

Rule of Civil Procedure 1915.8. In that Order, no limits were 

placed on the evaluator’s ability to obtain prior mental health 

treatment records of the parties. [The court] later issued Orders 

in compliance with Pa.R.Civ.P. 1915.18, limiting the parties’ 

access to the evaluator’s file without authorization from [the 

court].[4]

T.C.O. at 9-10 (citations to the record omitted) (footnotes added).

Thereafter, Mother, through counsel, filed timely notices of appeal on 

November 25, 2019, along with concise statements of errors complained of 

on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b), with respect to the 

October 29, 2019, order appointing a GAL pursuant to Pa.R.C.P. 1915.11-2 

and allowing access to mental health records, and the November 15, 2019,

order granting in part and denying in part Mother’s Petition for Emergency 

____________________________________________

3 While the notes of testimony from this hearing are not included as part of 

the certified record, they are included as part of the reproduced record. As 

their veracity is not in dispute, we rely on the copy contained within the 

Reproduced Record. See Commonwealth v. Barnett, 121 A.3d 534, 544 

n.3 (Pa.Super. 2015) (“While this Court generally may only consider facts that 

have been duly certified in the record, where the accuracy of a document is 

undisputed and contained in the certified record, we may consider it.”) 

(citations omitted)). 

4 Mother does not challenge the order as it relates to the psychological 

evaluations and/or testing.
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Special Relief Seeking Reconsideration and providing the GAL access to mental 

health records from the last three years for both Mother and Father.5, 6 

Pursuant to order of December 2, 2019, Mother was granted leave to amend 

her concise statement and such amended concise statement was treated as 

timely filed.7, 8 This Court consolidated Mother’s appeals sua sponte on 

January 27, 2020.

On appeal, Mother raises the following issues for our review:

1. Did the trial court err or abuse its discretion in directing 

disclosure to the Guardian ad Litem, over the objection of counsel,

of confidential mental health records, based upon 23 Pa.C.S.[] § 

5334, where the Mental Health Procedures Act [(“MHPA”)], 50 P.S. 

§ 7111(a), controls the disclosure of such records and supersedes 

any other statute to the contrary? 

Mother’s Brief at 2 (suggested answer omitted).9

____________________________________________

5 As indicated, this order additionally imposed restrictions as to disclosure and 

dissemination by the GAL, and the ability to object to the GAL’s testimony 

and/or report or recommendation.

6 We find such orders are appealable as collateral orders pursuant to Pa.R.A.P. 

313. See M.M. v. L.M., 55 A.3d 1167, 1168 (Pa.Super. 2012). 

7 Mother’s Amended Concise Statement made corrections as to citations. See

Amended Concise Statement of Errors Complained of on Appeal Pursuant to 

Pa.R.A.P. 1925, 11/27/19.

 

8 Upon motion of Mother, pursuant to order of December 3, 2019, the orders 

on appeal were stayed by the trial court. See Order, 12/3/19.

9 Mother failed to preserve a claim as to the striking of her testimony from 

October 28, 2019, pertaining to confidential mental health information, as she 

failed to raise such a challenge in the statement of questions involved section 

of her brief or present any argument and/or discussion with regard thereto. 
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Initially, for background purposes, we note that in any custody action 

brought under the Child Custody Act, (“the Act”), 23 Pa.C.S. §§ 5321-5340, 

the paramount concern is the best interests of the child. See 23 Pa.C.S. §§ 

5328, 5338. In fashioning a custody award, the trial court must consider the 

following best interest factors set forth in Section 5328(a), which provides as 

follows:

§ 5328. Factors to consider when awarding custody

(a) Factors.—In ordering any form of custody, the court shall 

determine the best interest of the child by considering all relevant 

factors, giving weighted consideration to those factors which 

affect the safety of the child, including the following:

(1) Which party is more likely to encourage and permit 

frequent and continuing contact between the child and another 

party. 

(2) The present and past abuse committed by a party or 

member of the party’s household, whether there is a continued 

risk of harm to the child or an abused party and which party can 

better provide adequate physical safeguards and supervision of 

the child. 

(2.1) The information set forth in section 5329.1(a)(1) and 

(2) (relating to consideration of child abuse and involvement with 

protective services). 

(3) The parental duties performed by each party on behalf 

of the child. 

____________________________________________

See In re M.Z.T.M.W., 163 A.3d 462, 465-66 (Pa.Super. 2017); Krebs v. 

United Refining Co., 893 A.2d 776, 797 (Pa.Super. 2006) (stating that a 

failure to preserve issues by raising them both in the concise statement of 

errors complained of on appeal and statement of questions involved portion 

of the brief on appeal results in a waiver of those issues). Any such challenge 

is, therefore, waived. Moreover, we note that Mother, while arguing against 

waiver, concedes that she abandoned such a claim. Mother’s Reply Brief at 

1-2.
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(4) The need for stability and continuity in the child’s 

education, family life and community life.

(5) The availability of extended family.

(6) The child’s sibling relationships.

(7) The well-reasoned preference of the child, based on the 

child’s maturity and judgment.

(8) The attempts of a parent to turn the child against the 

other parent, except in cases of domestic violence where 

reasonable safety measures are necessary to protect the child 

from harm.

(9) Which party is more likely to maintain a loving, stable, 

consistent and nurturing relationship with the child adequate for 

the child’s emotional needs.

(10) Which party is more likely to attend to the daily 

physical, emotional, developmental, educational and special 

needs of the child.

(11) The proximity of the residences of the parties.

(12) Each party’s availability to care for the child or ability 

to make appropriate child-care arrangements.

(13) The level of conflict between the parties and the 

willingness and ability of the parties to cooperate with one 

another. A party’s effort to protect a child from abuse by another 

party is not evidence of unwillingness or inability to cooperate with 

that party.

(14) The history of drug or alcohol abuse of a party or 

member of a party’s household.

(15) The mental and physical condition of a party or 

member of a party’s household.

(16) Any other relevant factor.

23 Pa.C.S. § 5328(a). 

Additionally, relevant to Mother’s specific appellate issue, we note that 

“the interpretation and application of a statute is a question of law that 

compels plenary review to determine whether the court committed an error 

of law.” Wilson v. Transport Ins. Co., 889 A.2d 563, 570 (Pa.Super. 2005). 
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“As with all questions of law, the appellate standard of review is de novo and 

the appellate scope of review is plenary.” In re Wilson, 879 A.2d 199, 214 

(Pa.Super. 2005) (en banc). 

We have stated:

[We] are constrained by the rules of statutory interpretation, 

particularly as found in the Statutory Construction Act. 1 

Pa.C.S.[] §§ 1501-1991. The goal in interpreting any statute is 

to ascertain and effectuate the intention of the General Assembly. 

Our Supreme Court has stated that the plain language of a statute 

is in general the best indication of the legislative intent that gave 

rise to the statute. When the language is clear, explicit, and free 

from any ambiguity, we discern intent from the language alone, 

and not from the arguments based on legislative history or “spirit” 

of the statute. We must construe words and phrases in the statute 

according to their common and approved usage. We also must 

construe a statute in such a way as to give effect to all its 

provisions, if possible, thereby avoiding the need to label any 

provision as mere surplusage. 

Cimino v. Valley Family Medicine, 912 A.2d 851, 853 (Pa.Super. 2006) 

(quotation omitted). See 1 Pa.C.S.[] § 1921(b). Under Section 1921(c), the 

court resorts to considerations of “purpose” and “object” of the legislature 

when the words of a statute are not explicit. Sternlicht v. Sternlicht, 583 

Pa. 149, 876 A.2d 904, 909 (2005) (referring to consideration of matters such 

as: (1) occasion and necessity for statute; (2) circumstances under which it 

was enacted; (3) mischief to be remedied; (4) object to be attained; (5) 

former law, if any, including other statutes upon same or similar subjects; (6) 

consequences of particular interpretation; (7) contemporaneous legislative 

history; (8) legislative and administrative interpretations of such statute). 

Moreover,
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[I]t is presumed that the legislature did not intend an absurd 

or unreasonable result. In this regard, we. . .are permitted to

examine the practical consequences of a particular 

interpretation.

Commonwealth v. Diakatos, 708 A.2d 510, 512 (Pa.Super. 1998). 

Likewise, pursuant to 1 Pa.C.S. § 1933:

Whenever a general provision in a statute shall be in conflict with 

a special provision in the same or another statute, the two shall 

be construed, if possible, so that effect may be given to both. If 

the conflict between the two provisions is irreconcilable, the 

special provisions shall prevail and shall be construed as an 

exception to the general provision, unless the general provision 

shall be enacted later and it shall be the manifest intention of the 

General Assembly that such general provision shall prevail.

1 Pa.C.S. § 1933.

 As to the confidentiality of mental health records, 50 Pa.C.S. § 7111

provides:

(a) All documents concerning persons in treatment shall be kept 

confidential and, without the person’s written consent, may not be 

released or their contents disclosed to anyone except:

(1) those engaged in providing treatment for the 

person;

(2) the county administrator, pursuant to section 110;

(3) a court in the course of legal proceedings 

authorized by this act; and

(4) pursuant to Federal rules, statutes and regulations 

governing disclosure of patient information where 

treatment is undertaken in a Federal agency.

In no event, however, shall privileged communications, whether 

written or oral, be disclosed to anyone without such written 

consent. . . . 

50 Pa.C.S. § 7111.
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Moreover, as to the appointment of a GAL in a custody matter, 23 

Pa.C.S. § 5334 states:

(a) Appointment.--The court may on its own motion or the 

motion of a party appoint a guardian ad litem to represent the 

child in the action. The court may access the cost upon the parties 

or any of them or as otherwise provided by law. The guardian ad 

litem must be an attorney at law.

(b) Powers and duties.--The guardian ad litem shall be charged 

with representation of the legal interests and the best interests of 

the child during the proceedings and shall do all of the following:

. . .

(2) On a timely basis, be given access to relevant 

court records, reports of examination of the parents 

or other custodian of the child and medical, 

psychological and school records. 

. . .

(6) Make specific recommendations in a written report 

to the court relating to the best interests of the child, 

including any services necessary to address the child’s 

needs and safety. The court shall make the written 

report part of the record so that it may be reviewed 

by the parties. The parties may file with the court 

written comments regarding the contents of the 

report. The comments filed by the parties shall also 

become part of the record.[10]

23 Pa.C.S. § 5334 (bold in original) (footnote added).

____________________________________________

10 As reflected by the Editors’ Notes:

23 Pa.C.S. § 5334 was suspended insofar as it (1) requires that a 

guardian ad litem be an attorney, (2) permits the guardian ad 

litem to represent both the best interests and legal interests of 

the child, (3) provides the guardian ad litem the right to examine, 

cross-examine, present witnesses and present evidence on behalf 

of the child, and (4) prohibits the guardian ad litem from 

testifying, pursuant to Pa.R.C.P. No. 1915.25.

Editors’ Notes 23 Pa.C.S. § 5334.
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In addition, Pa.R.C.P. 1915.11-2 states:

(a) The court may, on its own motion or the motion of a party, 

appoint a guardian ad litem to represent the best interests of the 

child in a custody action. The guardian ad litem shall be a licensed 

attorney or licensed mental health professional. The guardian ad 

litem shall not act as the child’s counsel or represent the child’s 

legal interests. Prior to appointing a guardian ad litem, the court 

shall make a finding that the appointment is necessary to assist 

the court in determining the best interests of the child.

Pa.R.C.P. 1915.11-2.

Lastly, Pa.R.C.P. 1915.21 provides that the order appointing a guardian 

ad litem shall provide, in part:

The child’s guardian ad litem shall represent the best interests of 

the child. The guardian ad litem shall not act as the child’s 

attorney or represent the child’s legal interests.

It is ordered and decreed that all relevant schools, police 

departments, hospitals and social service agencies including home 

and school agencies, who have records, reports and/or 

information pertaining to the child relevant to the custody of the 

the child, shall allow the guardian ad litem access to all files and 

records in its possession, custody or control and shall cooperate 

in responding to all relevant inquiries. These files/records may 

include but are not limited to medical, psychological or psychiatric 

charts including evaluations and progress notes and records, Xrays, photographs, tests, test evaluations, intake and discharge 

summaries, police records, and school records including report 

cards, educational assessments and educational plans, relevant to 

this custody dispute and/or relevant to any special needs or 

requirements of the child. The guardian ad litem shall have the 

right to copy any part of the files and records maintained in

connection with the child.

It is further ordered and decreed that the guardian ad litem shall 

be permitted to see and speak with the child, and family, medical 

and/or social service providers connected with this case, and take 

all steps appropriate to and consonant with this order.

The guardian ad litem shall provide copies of any reports prepared 

by the guardian ad litem to each party, or to their counsel, and to 
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the court not later than 20 days prior to trial. The guardian ad 

litem shall attend all proceedings and be prepared to testify. The 

guardian ad litem shall be subject to cross-examination if called 

to testify by either party or the court.

Pa.R.C.P. 1915.21.

In M.M. v. L.M., 55 A.3d 1167 (Pa.Super. 2012), the trial court ordered 

the father, over objection, to disclose to the mother mental health records

relating to his in-patient hospitalization and post-hospitalization treatment. In 

reversing in part and remanding, this Court held that the MHPA “is equally 

applicable in a custody dispute as it is in a civil matter. We hold so especially 

where, as here, less intrusive alternatives exist to determine the effect of a 

party’s mental health upon the child’s best interest.” Id. at 1173. Important 

to this Court was the “expectation of confidentiality.” Id. at 1174. This Court 

stated, “[T]he importance of confidentiality cannot be overemphasized [and] 

[t]he purpose of the [MHPA] . . . would be severely crippled if a patient’s 

records could be the subject of discovery in a panoply of possible legal 

proceedings.” Id. Instead, noting the “chilling effect” of disclosure of 

statutorily privileged mental health records, the Court expressed its 

preference for and existence of a less intrusive means, an updated 

psychological evaluation. “As the court-ordered psychological evaluation is 

the least intrusive means to determine how a parent’s mental health condition 

will affect a child’s best interest, it is the preferred method of evaluation.” Id.

at 1175 (citation omitted).
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Moreover, in Octave ex rel Octave v. Walker, 628 Pa. 128, 103 A.3d 

1255 (2014), our Supreme Court addressed waiver. The Court recognized the 

importance of the privilege and protection provided by Section 7111 and held:

The MHPA, 50 P.S. § 7101 et seq., establishes the rights and 

procedures for inpatient psychiatric treatment and involuntary 

outpatient care with the purpose of assuring availability of 

adequate treatment to mentally ill persons. The confidentiality 

protections for mental health records afforded by § 7111 exist to 

enable effective treatment “by encouraging patients to offer 

information about themselves freely and without suffering from 

fear of disclosure of one’s most intimate expressions to others and 

the mistrust that the possibility of disclosure would engender.” To

this end, 7111(a) requires a patient’s “written consent” before his 

mental health records are released or disclosed, except under 

certain limited circumstances inapplicable here. The Superior 

Court has held this statutory provision can be “waived,” however, 

if the patient places his mental health at issue in a case.

Octave ex rel Octave, supra, 103 A.3d at 1259. Nonetheless, the Court 

found the existence of waiver and held:

We cannot believe that the Pennsylvania General Assembly 

intended to allow a plaintiff to file a lawsuit and then deny a 

defendant relevant evidence, at plaintiff’s ready disposal, which 

mitigates defendant’s liability. Rather[,] the General Assembly 

must have intended the privileges to yield before the state’s 

compelling interest in seeing that truth is ascertained in legal 

proceedings and fairness in the adversary process. . . .

. . .

It must be emphasized that evidentiary privileges have been 

viewed by this Court to be in derogation of the search for truth, 

and are generally disfavored for this reason. The effect of that 

concern is obvious. Accordingly, we hold a patient waives his 

confidentiality protections under the MHPA where, judged by an 

objective standard, he knew or reasonably should have known his 

mental health would be placed directly at issue by filing the 

lawsuit.

Id. at 1260-61.
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In the case sub judice, in appointing the GAL and allowing access to the 

parties’ mental health records for the previous three years, the trial court 

reasoned as follows:

The confidentiality protections of the Mental Health 

Procedures Act can be waived where, “judged by an objective 

standard, [a party] knew or reasonably should have known [their] 

mental health would be placed directly at issue by filing the 

lawsuit.” This [c]ourt notes that in filing his Petition for 

Emergency Special Relief, [Father] raised [Mother]’s mental 

health conditions and [Mother] raised [Father]’s mental health 

conditions in her responsive Petition for Emergency Special Relief. 

By filing custody petitions, both parties in this case knew or 

reasonably should have known that their own mental health would 

be placed directly at issue at a custody trial. A strong argument 

can be made that both parties placed their mental health directly 

at issue and waived confidentiality protections. However, the 

Supreme Court has urged that this form of implicit waiver of 

Section 7111 be applied with great caution.

. . .

Understanding this irreconcilable conflict, this [c]ourt chose 

to apply the Guardian ad Litem statute Section 5334 of the Child 

Custody Act, to the instant dispute, but in a manner that respects 

both parents have concerns about the disclosure of their mental 

health history. On one hand, the Guardian ad Litem needs access 

to records to represent [Child]’s best interests and to make a 

statutorily-mandated report and recommendations to this [c]ourt. 

On the other hand, there appears to be over a decade of mental 

health treatment potentially available here, most of which does 

not necessarily encompass the present issues.

Upon consideration of the incomplete testimony of the 

parties and [Mother]’s Petition for Reconsideration, this [c]ourt 

determined that access to the parties’ records by the Guardian ad 

Litem should be limited to three years given [Mother]’s specific 

testimony that she began abusing alcohol at the end of 2016 and 

spent ten months in inpatient treatment for both alcohol abuse 

and an eating disorder in 2017. Moreover, during that inpatient 

treatment, [Mother] admitted that she overdosed on prescription 

medication. Given that drug and alcohol abuse and mental health 

conditions must be fully considered under 23 Pa.C.S. 
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5328(a)(14)-(15), disclosure of records is warranted in this case 

despite the broadness of Section 7111 of the [MHPA].

Although disclosure of records was ordered, this [c]ourt did 

not permit the Guardian ad Litem full, unfettered access to the 

parties’ mental health records in consideration of Section 7111. 

This [c]ourt also specifically limited the Guardian ad Litem’s ability 

to disseminate the records or the information contained therein 

and stated that the parties retained their ability to object to the 

Guardian ad Litem’s report or his testimony during the custody 

hearing. Furthermore, the Guardian ad Litem was precluded from 

sharing those records obtained with any party or with counsel.

Additionally, this [c]ourt took an additional, extraordinary 

step to seal the trial court record sua sponte without objection 

from either party.

. . .

“Whenever the provisions of two or more statutes enacted 

finally by different General Assemblies are irreconcilable, the 

statute latest in date of final enactment shall prevail.” “The 

Legislature has made clear [. . .] that tension between statutes 

enacted on different dates is generally to be resolved in favor of 

giving the greatest effect to [the] later-enacted provision.”

Section 7111 of the [MHPA] was enacted on July 9, 1976[,]

and made effective sixty days later. In 1996, Section 7111 was 

amended by P.L. 481, No. 77 and has remained effective as 

drafted since July 2, 1996. Section 5334 of the Child Custody Act 

was enacted on November 23, 2010[,] and made effective on 

January 24, 2011. Clearly, Section 5334 was enacted later in time 

and is to be given the greatest effect. . . .

T.C.O. at 12, 24-25, 31 (citations omitted).

Mother, however, argues that her mental health records are privileged 

and protected by the MHPA, which supersedes the Custody Act and any 

corresponding rules of civil procedure. Mother’s Brief at 7-8. Mother contends 

that Section 7111 supersedes Section 5334 because Section 7111 is specific 

in its provisions, while Section 5334, as well as the related Pennsylvania Rules 
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of Civil Procedure, are general. Id. at 12. She further highlights that, 

although Section 5334 is the later enacted statute, there is no intent revealed 

for Section 5334 to “trump” Section 7111. Id. at 8-9, 13. Section 7111, 

when amended, was not amended or even suspended to the extent of any 

conflict with Section 5334. Id. 10, 13. Mother argues:

Under statutory interpretation, where conflict exists, a 

specific provision governs over a general provision. First, review 

of § 5334 reveals that its language, providing the powers and 

duties to a Guardian ad Litem, is general. . . . The generality of § 

5334 is expanded by the rules of civil procedure, not by specific 

language in a statute itself. Even in the rules of civil procedure, 

Pa.R.C.P. 1915.11-2(a) is no more specific, and even with 

reference to the language to be contained in the order granting 

powers to the Guardian ad Litem by reference to Pa.R.C.P. 

1915.21 is just general. Thus, the language of § 5334 speaks in 

broad and general terms. Neither § 5334 nor the rules of civil 

procedure identify any limit on the dissemination of content of the 

mental health information acquired or to whom that information, 

through the Guardian ad Litem, whether in court or otherwise, 

may be disseminated.

In contrast, the MHPA is specific. The MHPA specifies that 

it applies to mental health records generated and concerning “all 

involuntary treatment. . . ., whether inpatient or outpatient, and 

for all voluntary inpatient treatment.” The MHPA specifically 

delineates to whom the mental health records may be disclosed 

and under what circumstances. The MHPA becomes even more 

specific through the definition of its terms. Because the MHPA is 

the more specific of the two provisions, it governs over § 5334 of 

the Child Custody Act.

Next, while the MHPA predates § 5334, which would seem 

to lean in favor of § 5334, a specific statute takes precedent over 

a general statute. However, this is not the sole factor for the older 

statute to take precedent over the newer statute. When reviewing 

the two (2) statutes, there must appear to be a “manifest intent” 

that the more recent statute trumps the elder statute.

Comparing both § 7111 and § 5334 reveals that the 

legislature has made no amendments which would weaken its 

strength, despite the enactment of 5334. However, modifications 
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have been made to § 7111. . . . Though § 7111 could have been 

amended, or even suspended, after the effective date of § 5334, 

to the extent that it was inconsistent with § 5334, it was not. 

Thus, it is submitted that the lack of suspension or amendments 

to § 7111 demonstrates that a “manifest intent” for § 5334 to take 

precedent over § 7111 is not present and the more specific

statute, § 7111, takes precedent over § 5334 and is the controlling 

statute under the circumstances.

Such a conclusion dove-tails and is consistent with 

Pennsylvania jurisprudence in the field of custody, where lesser 

intrusive means for the disclosure of records falling within the 

MHPA are available and would not lead to offending or causing 

conflict within the MHPA.

Mother’s Brief at 12-13. 

Discussing M.M. v. L.M., supra, and Gormley v. Edgar, 995 A.2d 1197 

(Pa.Super. 2010), Mother further maintains that the trial court erred in 

directing such disclosure to the GAL as there is a less intrusive means to 

evaluate the status of her mental health and any possible impact with respect 

to the custody and best interest of Child. Mother’s Brief at 13-17. 

Moreover, differentiating the instant case from Octave ex rel Octave,

supra, Mother asserts that she did not waive the protection of the MHPA as 

she did not commence the within proceedings. Mother’s Brief at 16-19. She 

contends:

Procedurally, . . . [Mother] did not commence the present action, 

rather [Father] did. Because [Mother] did not commence the 

custody action, she could not have reasonably known that her 

mental health would be called into question before the action had 

begun. Also, . . ., this case possesses a less intrusive means to 

evaluate [Mother]’s mental health and its possible impact on the 

best interest of the minor child. Therefore, this Court should 

reject the assertion that [Mother] waived the protection or 

privilege of the MHPA.
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Id. at 18.

For the reasons stated by the trial court above and in its thorough and 

exhaustive opinion, we do not disturb the trial court’s determinations.11 Unlike 

in M.M., where the records in question were being disseminated to the other 

party, instantly, they are being disseminated to the GAL. 

Moreover, and importantly, here, “less intrusive alternatives exist to 

determine the effect of a party’s mental health upon the child’s best interest.” 

M.M., 55 A.3d at 1173. The trial court fashioned less intrusive alternatives 

by restricting the GAL’s access to records from the last three years, restricting 

the GAL’s disclosure of the records, allowing objections to the GAL’s testimony 

and/or report or recommendation, and sealing the record. 

We further observe that the court additionally ordered mental health 

examination and/or testing of the parties. Accordingly, we affirm.

Orders affirmed.

Judge King joins the Opinion.

Judge Kunselman files a Dissenting Opinion.

____________________________________________

11 We do not rely on Octave ex rel Octave, supra, to conclude that Mother 

waived her claim of confidentiality by putting her own mental health records 

at issue. Rather, we rely on the trial court’s analysis that the court did not 

violate Mother’s rights under the MHPA where the trial court properly 

appointed a GAL under the Custody Act and utilized the least intrusive means. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 07/08/2020