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

STEPHEN T. ARCHER

v.

JULIE P. KAUER

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

PENNSYLVANIA

No. 24 WDA 2023 Appeal from the Order Entered December 2, 2022 In the Court of Common Pleas of Clearfield County Civil Division at No: No. 2021

- 1549

- CD

BEFORE: BENDER, P.J.E., STABILE, J., and PELLEGRINI, J. * MEMORANDUM BY STABILE, J.: FILED: JULY 17, 2023
Julie P. Kauer (“Mother”) appeals from the December 2, 2022 order that

awarded Stephen T. Archer (“Father”) (collectively, “Parents”) primary
physical custody of Parents’ son, W.A. (“Child”), born in July 2012. After
careful review, we vacate and remand

. We glean the factual and procedural history of this matter from the

certified record. Parents resided together in Father ’s residence in Ramey,
Pennsylvania , during the first year of Child’s life. See N.T., 8/17/2022, at 19

- 20, 106. However, in November 2013, Mother entered a rehabilitation facility
due to her addiction to opiates. 1 Id. at 31

- 32, 101. Child continued to live

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.

1 Parents were married in September 2013. N.T., 8/17/2022, at 101. It is unclear from the record when Parents divorced.J

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with Father while Mother participated in rehabilitation services for
approximately three months

. Id. at 101. Thereafte r , Mother moved to
Pittsburgh to continue her treatment

. Prior to the custody action commencing , Child continued to live with Father during the school year and visited Mother
on weekends, during the summer, and Parents split holidays. Id. at 7, 100

-
101.

Mother currently resides in Bethel Park, P ennsylvania , with her husband,

Adam Kauer. Id. at 5

- 6. Mother and Mr. Kauer have been in a relationship

since 2014 and married in 2019. They are self

- employed owner s of a cleaning
services company. Id. at 6.

At the time of the se proceedings , Father still lived in Ramey,
Pennsylvania with Child, his paramour , Becky Lavarchik , and occasionally Ms.

Lavarchik’s son , Z.M

. Id. at 95

- 96. However, Father and Ms. Lavarchik

te stified that they recently purchased a new house in Houtzdale, Pennsylvania , and were in the process of moving. Id. 95

- 96, 1 59. Father has been
employed as a corrections officer for 17 years with the Pennsylvania
Department of Corrections and currently works at State Correction Institution
(“SCI”) Houtzdale. Id. at 97. Ms. Lavarchik also works at SCI Houtzdale as

a registered nurse. Id. at 119. Due to Father’s work schedule, he has utiliz ed
paternal grandparents, maternal grandparents, and, more recently, his

paramour, for childcare

. Id. at 16

- 17 , 107

- 108. Father testified that he is
currently working a temporary shift , overseeing construction at the prison ,J

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from 7:00 a.m. to 5:00 p.m. , but he will return to working 6:00 a.m. to 2:00

p.m. once the construction concludes. Id. at 98

- 99.

Parents’ extra

- judicial custody arrangement was largely successful for
eight years

. Id. at 7

- 9. Accordingly, Child has always attended school in th e Moshannon Valley School District. Id. at 99. However, o n November 4, 2021,
after a parent teacher conference, Mother approached Father to discuss Child
moving to Bethel Park and attending school there. Id. at 9

- 10. Mother

testified that Father did no t like the idea, but he agreed to have a conversation
about it during the next custody exchange

. Id. at 10. Mother believed that
Father verbally agreed to allow Child to live with her. Id. at 34. Father

test ified that he never agreed to Mother’s plan . Father initiated the custody
action on November 22, 2021 , seeking primary physical custody and shared
legal custody

. Id. at 102.
Thereafter, Parents attended a custody conference on January 11 , 2022,
and participated in a custody mediation on February 22, 2022 . On March 23,
2022, Mother filed a n answer and counter

- complaint , in which she also
requested primary physical custody of Child and requested a custody hearing

. The custody hearing occurred on August 17, 2022

. Therein, Mother

testi fied and presented the testimony of Mr. Kauer and maternal grandmother,

Janet Caldwell. Father similarly testified and also adduced the testimony of

his father , Stephen Archer, Senior (“Paternal Grandfather”) , and Ms.J

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Lavarchik

. The court conducted an in camera interview of Child , then ten
years old, in the presence of counsel.
By order and opinion entered December 2, 2022 , the trial court awarded
Father primary physical custody, and Mother partial physical custody every
weekend but one per month from Friday at 3:00 p.m. until Sunday at 5:00

p.m. ; during the summer, on a two

- week alternating basis ; and during
holidays, when Parents split their time with Child. The trial court also awarded
Parents shared legal custody of Child

.
On December 30, 2022, Mother timely filed a notice of appeal and
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2 )(i) and (b). On January 9, 2023, the trial court submitted a letter
pursuant to Rule 1925(a) stating that it would be relying up on the reasoning
provided in its opinion accompanying the December 2, 2022 order , and
requested its decision to remain undistu rbed.
Mother presents the following issues for review:

1. Whether the trial court erred and abused its discretion by failing to complete an independent consideration and assessment of all relevant factors set for th in 23 Pa.C.S.A. § 5328[?]

2. Whether the trial court erred and abused its discretion in failing to award Mother primary physical custody in light of the factors set forth in 23 Pa.C.S.A. § 5328 [?]

3. Whether the trial court erred and abused its discretion in failing to consider [Child’s ] preference[?]

Mother’s Brief at 4 (unnecessary capitalization omitted)

.J

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Our standard and scope of review in this context is well

- established:
Our standard of review over a custody order is for a gross abuse of discretion. Such an abuse of discretion wi ll only be found if the trial court, in reaching its conclusion, overrides or misapplies the law, or exercises judgment which is manifestly unreasonable, or reaches a conclusion that is the result of partiality, prejudice, bias, or ill

- will as shown by the evidence of record.
In reviewing a custody order, we must accept findings of the trial court that are supported by competent evidence of record, as our role does not include making independent factual determinations. In addition, with regard to issues o f credibility and weight of the evidence, we must defer to the trial court who viewed and assessed the witnesses first

- hand. However, we are not bound by the trial court’s deductions or inferences from its factual findings. Ultimately, the test is whethe r the trial court’s conclusions are unreasonable as shown by the evidence of record. We may reject the conclusions of the trial court only if they involve an error of law, or are unreasonable in light of the sustainable findings of the trial court.
Rogow ski v. Kirven , 291 A.3d 50, 60

- 61 (Pa. Super. 2023) ( internal
citations and quotations omitted).
As with all custody

- related matters, this Court’s “paramount concern is

the best interest of the child involved.” Id . at 61 (internal citation and
quotation omitted). Indeed, Pennsylvania law provides that the trial court is
only empowered to change an existing custody order if the modification will
“serve the best interest of the child.” 23 Pa.C.S.A. § 5338(a). To that end,
the Child Custody Act sets fort h sixteen factors at 23 Pa.C.S.A. § 5328(a) that
a court must consider prior to modifying an existing custody order. See E.B.

v. D.B. , 209 A.3d 451, 460 (Pa. Super. 2019). While a court’s consideration
of these factors is mandatory, “it is within the tri al court’s purview as theJ

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finder of fact to determine which factors are most salient and critical in each
particular case.” Id . (internal citation omitted). Furthermore, t rial courts are
required to consider “ [a]ll of the factors listed in section 5328(a ) . . . when
entering a custody order.” J.R.M. v. J.E.A. , 33 A.3d 647, 652 (Pa. Super.
2011) (emphasis in original).
These factors provide as follows:
(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 chi ld 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 sup ervision 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 sta bility 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.J

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- ( 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, consis tent 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 resi dences 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 an d physical condition of a party or member of a party's household.
(16) Any other relevant factor.
23 Pa.C.S.A. § 5328(a). In order to evidence its consideration of these
required elements, trial courts must set forth a discussion of these best

interest factors “prior to the deadline by which a litigant must file a notice of
appeal.” A.V. v. S.T. , 87 A.3d 818, 820 (Pa. Super. 2014).
We begin our review with Mother’s third issue, which is dispositive.

Mother asserts that the trial court failed to proper ly consider SectionJ

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5328(a)(7), the well

- reasoned preference of the child based on the child's
maturity and judgment. Mother’s Brief at 44. Specifically, Mother contends
that the court erred in finding that “Child did not expressly state his desire .”

Mo ther’s Brief at 44; see also Trial Court Opinion, 12/2/2022, at 2

- 3
(unpaginated). Rather, Mother argues that, during his in camera interview,
Child testified that he preferred to reside with her and attend the Bethel Park

School District. Mother’s Brief at 32 , 44. We agree.
In pertinent part, Child testified as follows on inquiry by the court

. Q: So, [Child], as I understand it, pretty much for all your life, you’ve been living with [Father] during the school year

--
A: Uh

- huh.
Q:

-- and going to [Mother’s] on the weekends. And then in the summers, you went to [Mother’s] during the week and [Father’s] on the weekend?

A: Yes.
Q: Okay. How has that been going?
A: On my [Father’s] for the weekends?
Q: For the way the sched ule was, did it go pretty good?

A: Yeah.
Q: So I heard today that you told [Mother] or told someone that you wanted to go to the Bethel Park school?

A: Yes.
Q: How did that come about? Who gave you the idea of going to Bethel Park?J

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A: So when I’ m with [Mother] every time, I

-- so we drive past a lot of schools. I said I wanted to be there and I just want to be with [Mother]. I don’t want to live with [Father].
Q: Okay. So what happened that you said that you want to live with [Mother] and no t [Father]?
A: So, I told [Mother] and she said, okay, and she told [Father]; next thing you know, all this, we’re all here.
Q: So did they tell you why you’re here?

A: Yes.
Q: Who told you?

A: Wait.
Q: Who told you why we’re here today, [Mother] or [Father]?
A: Nobody.
Q: Nobody. So you didn’t ask questions: why am I going to Clearfield Courthouse? Did you ever ask anyone that?

A: No.
Q: So they just got you up this morning, you put on a nice pair of pants and bowtie?

A: No. Mediation, like the day before, my [Father] told me.
Q: I’m talking about today, who told you?
A: Because when we left, [Father] told me that we were going to mediation

-- or, not mediation.
Q: For today?
A: Yeah, for today.
Q: And [Mother] never told you that?

A: No.J

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N.T., 8/17/2022, at 8

- 9. Additionally, on cross

- examination, Child indicated

that Mother did not tell him that Bethel Park School District is better than
Moshannon Valley.
Q: When you said to the judge, you told [Mother] and then [Mother] told [Father]; do you remember saying that?

A: Yes.
Q: And then you said, and then all of this. So what did you mean by that?

A: We’re here in the room for court.
Q: Okay. And you blame [Father] for that?

A: Yes.
Q: Okay. Did [ Mother] talk to you at all about what [Father] did?

A: No.
Q: Okay. Did she ever talk to you about Bethel Park being better than Mo Valley?

A: No.

Id. at 9

- 10.
Based on the foregoing testimony, it is clear that Child evinced a
preference for residing with Mother and attending the Bethel Park School

District

. As such , the trial court erred by finding that Child had not stated a relevant preference. B ecause the custody order is not supported by
competent evidence with respect to Section 5328(a)(7) , we conclude that the

court abused its discretion. See Rogowski , 291 A.3d at 60.J

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Accordingly, we vacate the order and remand the case to the trial court
for consideration of Child’s stated preference pursuant to Section 5328(a)(7) , along with all of the other custody factors, and to issue a new custody order.
Upon remand, we place no restrictions on whatever actions the trial court
wishes to take with respect to Child’s preference based on his maturity and
judgment , including supplemental fact finding.
Based on this disposition , we need not consider Mother’s remaining

issue s

. Order vacated

. Case remanded. Jurisdiction relinquished.
Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/17/2023