J-A07016-26
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
TAYLOR NICHOLLE FABIO : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KRISTOFFER HEXTER : : Appellant : No. 1522 MDA 2025 : : : : v. : : : WAYNE D. CARTER JR. : : : v. : : : BRUCE HEXTER :
Appeal from the Order Entered October 7, 2025 In the Court of Common Pleas of Lebanon County Civil Division at No(s): 2020-2-0074
BEFORE: BOWES, J., DUBOW, J., and NEUMAN, J.
MEMORANDUM BY DUBOW, J.: FILED: JUNE 12, 2026
Appellant, Kristoffer Hexter (“Father”), appeals pro se from the October
7, 2025 order entered in the Lebanon County Court of Common Pleas following
Father’s petition for modification for custody of A.R.H. (“Child”) in which the
court denied Father’s request to terminate the custody rights of Mother’s
fiancé and granted Bruce Hexter (“Paternal Grandfather”) visitation rights. J-A07016-26
After careful review, we are constrained to vacate and remand for further
proceedings.
The relevant facts and procedural history are as follows. Father and
Taylor Nicholle Fabio (“Mother”) are the biological parents of Child. Child
resides with Mother and Mother’s fiancé. Father has been incarcerated since
2021, serving a sentence of 54 months to 10 years for sex-related crimes
involving a 14-year-old victim. Father will be eligible for parole in 2026.
On May 26, 2023, pursuant to an agreement reached by the parties in
custody conciliation, the court entered an order granting Mother, Father, and
Mother’s fiancé shared legal custody of Child and Mother primary physical
custody of Child. The court also granted Father and Mother’s fiancé physical
custody “as the parties may agree.” Order, 5/26/23.
On October 2, 2023, Father filed a petition for modification of custody,
requesting that the court limit shared legal custody to only Father and Mother,
while leaving the physical custody arrangement unchanged. Father also
requested additional contact and communication with Child. On July 21, 2025,
Paternal Grandfather filed a petition to intervene in this action, which the court
granted.
On July 28, 2025, the court held a custody hearing on the matter.
Father clarified that he sought to remove Mother’s fiancé’s legal custody of
Child on the basis that Mother’s fiancé was not the biological father and should
not have legal rights to make decisions on Child’s behalf. Father also clarified
that Father was seeking “at a minimum one phone call per week with [Child]
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and one video visitation per month.” N.T. Hr’g, 7/28/25, at 13. Father
testified that he had not spoken to his daughter in over a year but had
communicated with her by mail several times by sending cards to Paternal
Grandfather’s address so that Paternal Grandfather could deliver the mail to
Child.
Paternal Grandfather testified that he had last seen Child in 2023 and
would like to have physical visits and phone calls with Child at least once a
month. Paternal Grandfather testified that he had not delivered Father’s mail
to Child because Mother had told Paternal Grandfather not to communicate
with Child.
Mother testified that Father had never participated in any legal custody
matters or parental responsibilities and that she believes it is not safe for Child
to communicate with Father because of the nature of Father’s convictions and
the lack of relationship between Father and Child. Mother testified that she
would be willing to facilitate communication and visits between Child and
Paternal Grandfather. Mother admitted that, on at least one occasion, there
had been police involvement due to an argument between her and her fiancé
but that they were now engaged.1 Mother also informed the court that she,
her fiancé, and Child had moved to Cheswick, Pennsylvania in November
____________________________________________
1 Following the hearing, Father informed the court of the existence of a petition
for protection from abuse (“PFA”) filed by Mother against her fiancé in Allegheny County.
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2024. She stated that she had informed her attorney of the relocation but
was not sure if Father had been notified.
On October 7, 2025, the court granted Paternal Grandfather visitation
rights as the parties may agree and denied Father’s petition in all other
respects. The court specified in its order that Father could write letters and
send mail to Child but could not have telephone or video conversations with
On October 27, 2025, Father pro se filed a “Petition for Injunctive Relief”
requesting an “emergency injunction recalling [Mother] back to the
jurisdiction of the [c]ourt,” asserting that the relocation was contrary to Child’s
best interests. Petition, 10/27/25. On October 29, 2025, the court denied
Father’s petition.
This appeal followed. On December 4, 2025, Father filed late a Pa.R.A.P.
1925(b) Statement of Matters Complained of on Appeal.2 The trial court
complied with Rule 1925(a).
Father raises the following issues for our review:
2 A Rule 1925(b) statement must be filed concomitantly with the notice of appeal for children’s fast track cases pursuant to Rule 1925(a)(2)(i). Here, on November 4, 2025, the trial court directed Father to file his Concise Statement, and, by order filed November 24, 2025, granted an extension to December 9, 2025. Father filed his Concise Statement on December 4, 2025. Accordingly, we decline to quash this appeal. See In re K.T.E.L., 983 A.2d 745, 747-48 (Pa. Super. 2009) (holding that failure to file a Rule 1925(b) statement concurrently with a children’s fast track appeal is considered a defective notice of appeal, to be disposed of on a case-by-case basis, but did not result in dismissal or quashal where there was no prejudice to the other parties as a result of the late filing).
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1. Did the trial court commit an error of law or abuse of discretion by failing to articulate legal basis for restriction of parental communication?
2. Did the trial court commit an error of law or abuse of discretion by failing to consider mandatory best interest factors?
3. Did the trial court fail to discuss relocation factors under 23 Pa.C.S. § 5337 and [err] by allowing parties to move without notification to the court and to all parties involved?
4. Did the trial court fail to articulate order and opinion of October 7, 2025 in contrast to the May 24, 2023 order?
5. Did the trial court err and abuse its discretion by failing to consider evidence of past domestic incidents involving police contact in a custody proceeding where the child’s safety is paramount?
6. Did the trial court err and abuse its discretion by granting custody rights to [Mother’s fiancé] and failing to conduct a risk of harm hearing regarding [Mother’s fiancé], particularly after being informed of an active [PFA] order against him [] and by failing to adequately consider the best interests of the child in light of this new information?
7. Did the trial court commit an error of the Pennsylvania Rules of Civil Procedure 1915.4(d) regarding expedited nature and prompt entry of orders?
8. Did the trial court commit a procedural error of the Pennsylvania Rules of Appellate Procedure 4007 and [] 1911 by failing to respond to multiple requests for transcripts?3
Father’s Br. at 5-6 (unnecessary capitalization omitted).4
***
3 Notwithstanding Father’s protestations that the trial court failed to act on his
request for the court reporter to transcribe the notes of testimony of the July 28, 2025 custody hearing, both volumes of the transcripts are included in the certified record. Thus, we do not need address this claim of error. 4 Appellees did not file a brief on appeal.
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We first consider Father’s first and second issues together. Father
asserts that the court failed to consider the best interest factors as required
by the Child Custody Act when it entered its October 7, 2025 order. Id. at
12-14. Father also asserts that the court did not articulate any legal basis for
restricting his contact with Child by prohibiting phone and video
communication. Id. at 10-12.
This Court reviews a custody determination for an abuse of discretion.
In re K.D., 144 A.3d 145, 151 (Pa. Super. 2016). We will not find an abuse
of discretion “merely because a reviewing court would have reached a different
conclusion.” Id. Rather, “[a]ppellate courts will find a trial court abuses its
discretion if, in reaching a conclusion, it overrides or misapplies the law, or
the record shows that the trial court’s judgment was either manifestly
unreasonable or the product of partiality, prejudice, bias or ill will.” Id.
Further, when this Court reviews a trial court's “best interests” analysis
in custody matters, our scope of review is broad but we are “bound by findings
supported in the record, and may reject conclusions drawn by the trial court
only if they involve an error of law, or are unreasonable in light of the
sustainable findings of the trial court.” Saintz v. Rinker, 902 A.2d 509, 512
(Pa. Super. 2006) (citation omitted). Importantly, “on the issues of credibility
and weight of the evidence, we defer to the findings [of] the trial judge.” Id.
(citation omitted). We can only interfere where the “custody order is
manifestly unreasonable as shown by the evidence of record.” Id. (citation
omitted).
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The Child Custody Act, 23 Pa.C.S. §§ 5321-5340, requires a trial court
to consider all of the Section 5328(a) best interest factors when “ordering any
form of custody.” 23 Pa.C.S. § 5328(a). When deciding a petition to modify
custody, a court must conduct a thorough analysis of the best interests of the
child based on the relevant Section 5328(a) factors. E.D. v. M.P., 33 A.3d
73, 79-80 (Pa. Super. 2011). “All of the factors listed in section 5328(a) are
required to be considered by the trial court when entering a custody order.”
J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis in original).
The record must be clear on appeal that the trial court considered all the
factors. Id.
Further, this Court has clarified that “incarcerated parents seeking
contact with their children are seeking ‘a form of custody,’ i.e., supervised
physical custody via either an original complaint or a modification petition[.]”
S.T. v. R.W., 192 A.3d 1155, 1166 (Pa. Super. 2018). Accordingly, “the
custody court must consider the custody factors under [Section] 5328(a)
when deciding these prison cases.” Id.
When reviewing child custody matters and the trial court’s consideration
of the Section 5328(a) factors, our paramount concern is the best interests of
the child. See Saintz, 902 A.2d at 512. “The best interests standard, decided
on a case-by-case basis, considers all factors which legitimately have an effect
upon the child’s physical, intellectual, moral and spiritual well-being.” Id.
(citation omitted).
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Here, the trial court stated that it did “not see a review of the custody
factors as being relevant to this appeal” because Father is currently
incarcerated and, thus, “cannot exercise custody rights.” Trial Ct. Op.,
12/12/25, at 3 (quoting Order and Op., 10/7/25, at 6-7). The court also
asserted that it did not need to analyze the factors because:
[T]here was no information available to the [c]ourt with regard to Father’s circumstances with the exception of his lengthy incarceration and the fact that he has never had any meaningful participation in [Child’s] life. The absence of any additional information rendered it impossible for us to embark on an analysis of these factors. Had there been any evidence of a pre-existing relationship between Father and [Child], the custody factors may have been relevant in formulating a decision on [Child]’s best interest for the maintenance of that relationship. However, we do not find them to be relevant at the present time since the parent- child relationship is yet to be created.
Id. at 3-4.
We conclude that the trial court erred in denying Father’s petition for
modification without examining the Section 5328(a) best interest factors. In
his modification petition, Father specifically requested additional phone and
video contact with Child and sought to remove Mother’s fiancé as Child’s legal
guardian. The court is required to consider whether these proposed
modifications are in Child’s best interests under the Section 5328(a) factors.
The mere fact that Father is currently incarcerated does not obviate the court’s
responsibility to do so. See S.T., 192 A.3d at 1166 (finding incarcerated
parent’s request for contact with child must be assessed under 5328(a)
factors). Thus, we vacate the trial court’s order and remand for the court to
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issue a new order and accompanying opinion that considers the required
factors within 45 days.
In his third issue, Father asserts that Mother failed to comply with the
relocation procedure outlined in 23 Pa.C.S. § 5337(a) when she relocated to
Allegheny County in November 2024. Father’s Br. at 14. He asserts that the
trial court erred in failing to address the relocation factors during the custody
hearing and erred in denying his petition for injunctive relief without any
discussion of the relocation factors. Id. at 13-14.
This issue pertains to the order that the trial court issued on October
29, 2025 denying Father’s “Petition for Injunctive Relief” which is not before
us on appeal. While we cannot, therefore, review the procedural aspects of
Mother’s disregard for the relocation statute in this case, we must
nevertheless address the applicability of the relocation factors to the trial
court’s consideration of the child’s best-interest.
Typically, the trial court should hold an expedited full hearing before
relocation occurs, with the relocating party bearing the burden of establishing
that the relocation will serve the child’s best interests based upon the ten
factors listed in Section 5337(h). See 23 Pa.C.S. § 5337(g), (h), (i)(1).
Although Section 5337(l) precludes a trial court from conferring a presumption
in favor of a party who relocates without permission, the trial court must still
consider the evidence as it exists in the new location in determining the best
interests of the child. See id. at 5337(l); B.K.M. v. J.A.M., 50 A.3d 168, 175
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(Pa. Super. 2012). Here, it is beyond cavil that Mother moved with Child, her
fiancé, and their younger daughter from Lebanon County to Allegheny County
without Father’s consent or court approval.
However, as noted by the foregoing legal principles, that move does not
trigger the relocation provisions unless it impairs the custodial rights of a non-
relocating party. While it is doubtful that the move impaired Father’s custodial
rights, considering his incarceration in a state facility, it is undisputed that the
move impaired Paternal Grandfather’s newly-revived custody rights—a fact
that Mother and the court both acknowledge insofar as the relocation
increased Paternal Grandfather’s travel time by approximately five hours. See
e.g., N.T. Hr’g, 7/8/25, at 33-24, 37.
Thus, to the extent that the trial court awarded Paternal Grandfather
some form of physical custody, consideration of the relocation factors is
warranted as a component of the best-interest determination. Accordingly, in
addition to directing the trial court to consider the best-interest factors listed
in Section 5328(a), the court should also apply the relevant relocation factors
in Section 5337(h) prior to fashioning a new custody order.
In his fourth issue, Father argues that the trial court erred in
incorporating the prior custody order entered on May 24, 2023 into the
October 7, 2025 order that is the basis of this appeal because the orders
include contradictory terms regarding his ability to maintain contact with
Child. Father’s Br. at 15. He contends, “one order, [dated] May 24, 2023,
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clearly outlines allowing communication between Child and Father, while the
other order, [dated] October 7, 2025, is restricting Father to only postal mail
communication.” Id. (some capitalization altered). This issue is moot insofar
as we are now vacating the October 7, 2025 order that includes the
purportedly contradictory terms. We, nevertheless, caution the trial court to
be alert to potential conflicts if, upon remand, it again elects to incorporate
portions of the May 2023 order into the new order and opinion.
In his fifth and sixth issues, Father argues that the trial court erred in
“failing to conduct a risk of harm hearing regarding [Mother’s fiancé]” in
relation to a PFA petition that Mother filed against her fiancé after the couple
moved to Allegheny County. Id. at 16. Invoking 23 Pa.C.S. §§ 5329(a)
(Consideration of criminal conviction) and 5330 (Consideration of criminal
charge), Father asserts, inter alia, “the court must consider the criminal
conduct and determine that the party does not pose a threat of harm before
making any order for custody to that party.” Id. at 17. We disagree. The
filing of a PFA petition is not the same as a criminal charge or conviction and
thus, the trial court did not err in declining Father’s request for a risk of harm
hearing.
Pursuant to Section 5329(a), a trial court is required to consider whether
a member of Mother’s household has been convicted of, or pled guilty or no
contest to, a list of enumerated criminal offenses. See 23 Pa.C.S § 5329(a).
When applicable, the trial court must “consider such conduct and determine
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that the party does not pose a threat of harm to the child before making any
order of custody to that party[.]” Id. Similarly, in accordance with Section
5330, upon learning of a criminal charge relating to one of the offenses
enumerated in Section 5329(a), the trial court is directed to hold a risk of
harm hearing to determine “whether the party who is or has been charged
with the offense set forth in [Section] 5329(a) poses a risk of physical,
emotional, or psychological harm to the child.” Id. at § 5330(b).
Plainly, Sections 5329 and 5330 relate to criminal convictions and
criminal charges, respectively. Here, Mother’s fiancé was neither charged nor
convicted of a criminal offense, much less an offense enumerated in Section
5329. Indeed, while the conduct that forms the basis of a PFA petition may
constitute a criminal offense in some cases, merely being a named respondent
in a PFA petition is not in itself criminal and PFA proceedings lack the character
and qualities of a criminal action. Commonwealth v. Bartic, 303 A.3d 124,
131 (Pa. Super. 2023) (“[A] PFA proceeding is civil in nature. In the simplest
of terms, the primary objective of the PFA[ Act] is to prevent abuse and
provide a means by which a victim of abuse can seek redress and
protection.”).
Additionally, the trial court properly considered that Mother filed a PFA
petition against her fiancé and concluded that no further action was
warranted. Thus, the trial court did not commit legal error or abuse its
discretion in rejecting Father’s request for a “risk of harm” hearing based on
Mother filing a PFA petition against her fiancé.
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We, however, highlight that while Father’s assertion of trial court error
for not ordering a risk of harm hearing is meritless, the facts underlying
Mother’s PFA petition are likely pertinent to the trial court’s assessment of the
relevant best-interest factor outlined in Section 5328(a)(2), which expressly
implicates PFA orders, and should be considered upon remand. See 23 Pa.C.S
§ 5328(a)(2).
In sum, we remand this matter for the trial court’s consideration of all
of the Section 5328 best-interest factors, including the second factor
concerning the past and present abuse of a party or household member, as
well as the relevant relocation factors listed in Section 5337(h).5
Order vacated. Case remanded for the trial court to issue a new order
and opinion within 45 days of the issuance of this memorandum opinion. The
prothonotary is directed to immediately remand the record to the trial court.
5 We also note with displeasure that the trial court violated the Pennsylvania
Rule of Civil Procedure 1915.4(d) by entering its order 71 days after the custody hearing. See Pa.R.Civ.P. 1915(d) (requiring court to promptly enter decision within 15 days of trial’s conclusion). We emphasize to the trial court the high priority it must place on addressing issues involving children.
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Jurisdiction relinquished.
Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 06/12/2026
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