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HomeMy WebLinkAbout02-5942THOMAS WILSON, WILLIAM PICCIRILLi AND ANNE PICCIRILLI, Plaintiffs CHRISTINE PICCIRILLI WILSON, : IN THE COURT OF COMON PLEAS : CUMBERLAND COUNTY PENNSYLVANIA : : CIVIL ACTION- LAW : : CUSTODY ./~, IS ITATI_O, N v NO. Oa- EDWARD F. McNAMARA AND ROBERT G. EYER, Defendants COMPLAINT IN CUSTODY AND NOW, comes Christine Piccirilli Wilson, Thomas Wilson, William Piccirilli and Anne Piccifilli, by and through their attorney Stanley H. Mitchell, Esquire, who files the within Complaint In Custody against Defendants Edward F. McNamara and Robert G. Eyer, to wit: 1 Plaintiffs are Christine Piccirilli Wilson and Thomas Wilson, "Aunt" and "Uncle", respectively, who currently reside at 11309 Water Point Circle, Reston Virginia 20194, and William Piccirilli and Anne Piccirilli, "Grandfather" and "Grandmother", who currently reside at 424 N. 21 st Street, Camp Hill, Pennsylvania 17011. 2 Defendants are Edward F. McNamara, "Father", who currently resides at 536 Walnut Street, # l 0, LeMoyne, Pennsylvania 17043 and Robert G. Eyer, "Stepfather", who currently resides at 90 Southcrest Rd., York Haven Pennsylvania 17370. 3 Plaintiffs seek shared physical custody of the following child: NAME PRESENT ADDRESSES AGE Debra Elaine McNamara 424 N. 21 st St. 6 yrs. Camp Hill, PA 17011 11309 Water Point Circle Reston, Virginia 20194 The child was bom out of wedlock. The child is currently in the custody of Plaintiffs, who currently reside at 424 N. 21st Street, Camp Hill, Pennsylvania 17011 and 11309 Water Point Circle, Reston, Virginia 20194. During the past five years, the child resided with the following person and at the following addresses: PERSONS William Piccirilli and Anne Piccirilli Barbara Piccirilli Eyer, Robert G. Eyer Barbara Piccirilli Barbara Piccirilli Edward F. McNamara William Piccirilli and Anne Piccirilli Barbara Piccirilli ADDRESSES 424 N. 21st St. Camp Hill, PA 90 Southcrest Rd. York Haven, PA 1219 Briggs St. #A New Cumberland, PA 1219 Briggs St. # B New Cumberland, PA 424 N. 21st St. Camp Hill, PA DATES Nov. 21, 2002 to Present July 22, 2002 to Nov. 21, 2002. June 2, 2001 to July 6, 2002 May 7, 1999 to June 2, 2001 February 8, 2000 to June 2, 2001 The mother of the child is Barbara Piccirilli, who passed this life November 26, 2002. She was married to Robert G. Eyer. The father of the child is Edward F. McNamara, who currently resides at 536 Walnut Street, LeMoyne, Pennsylvania. He is single. The stepfather of the child is Robert G. Eyer, who currently resides at 90 Southcrest Road, York Haven, Pennsylvania. He is a widower. 4 The relationship of Plaintiffs to the child is Aunt, Uncle, and Grandparent, respectively. Plaintiffs currently reside with the following persons: NAMES RELATIONSHIP Debra McNamara Granddaughter 5 The relationship of Defendants to the child is that of natural father and stepfather, respectively. Defendants currently reside with the following persons: NAMES RELATIONSHIP Unknown (Edward F. McNamara) Unknown (Robert G. Eyer) 6 Plaintiffs have not participated as a party or witness or in another capacity in other litigation concerning the custody of the child in this or another Court. The Court, term and number and its relationship to this action is Plaintiffs have no information of a custody proceeding concerning the child in a Court of this Commonwealth. The Court, term and number and its relationship to this action is Plaintiffs do not know of a person not a party to the proceedings who has physical custody of the child or claims to have custody or visitation rights with respect to the child. The name and address of such person is 7 The best interests and permanent welfare of the child will be served by granting the relief requested because the minor child needs stability in her life. The natural mother passed away November 26, 2002 after battling cancer for several years. She had only recently married Defendant Robert G. Eyer in July 2002; the minor child had lived with her mother and the stepfather from July 22, 2002 until November 21, 2002, a period of approximately seventeen weeks. During said period, the minor child was cared for by Plaintiffs during the natural mother's frequent hospitalizations and during frequent visits to the home - as well as vacations and special events prior to the Decedent's illness. The minor child spent one full month with the Plaintiffs during the above stated seventeen week period. Defendant Robert G. Eyer was absent from the home three nights a week for bible study and had previously indicated to Plaintiffs that he "could not handle" the minor child. Indeed, the minor child is physically afraid to be in the presence of Defendant Robert G. Eyer. The Plaintiffs have additional salient reasons for denying both full and partial legal and or physical custody of the minor child to Defendant Robert G. Eyer that, in the event of a hearing, shall be fully set forth. Defendant Edward F. McNamara has never been a substantive part of the minor child's life. Indeed, he has not seen the child in over three years. The Plaintiffs have additional salient reasons for denying both full and partial legal and or physical custody of the minor child to Defendant Edward F. McNamara that, in the event of a hearing, shall be fully se[ forth. 8 Each parent whose parental rights to the child have not been terminated and the person who has physical custody of the child have been named as parties to this action. All other persons, named below, who are known to have or claim a right to custody or visitation of the child will be given notice of the pendency of this action and the right to intervene: NAME ADDRESSES BASIS OF CLAIM WHEREFORE, Plaintiffs respectfully requests that this Honorable Court enter an Order granting shared physical custody of the child to the Plaintiffs. Respectfully submitted: ~l,~squ~re P.O. Box 425 Harrisburg, Pennsylvania 17108 (717) 233-3339 PA. Bar I.D. No. 32093 Attorney for Plaintiffs Date: December 10, 2002 VERIFICATION We, Christine Piccirilli Wilson, Thomas Wilson, William Piccirilli and Anne Piccirilli hereby verify that the statements made in the attached document are true and correct. We understand that false statements herein are made subject to the penalties of 18 PA.C.S. 4904 relating to unsworn falsification to authorities. Christine Piccirilli Wilson Thomas Wils~ William Piccirilli Anne Piccirilli Date: December 10, 2002 CHRISTINE PICCIRILLI WILSON, THOMAS WILSON, WILLIAM PICCIRILLI AND ANNE PICCIRILLI, Plaintiffs V EDWARD F. McNAMARA AND ROBERT G. EYER, Defendants · IN THE COURT O17 COMON PLEAS · CUMBERLAND COUNTY PENNSYLVANIA · CIVIL ACTION- LAW · CUSTODY/VISITATION · NO. 5942-2002 CERTIFICATE OF SERVICE I hereby certify that on the 16th day of December 2002 1 served a copy of the foregoing Complaint in Custody upon the following by first class mail, postage prepaid: Edward F. McNamara 536 Walnut St., # 10 LeMoyne, PA 17043 Attomey for Robert G. Eyer Nathan Wolff, Esquire 35 E. High St. Carlisle, PA 17013 Stanley H. Mitchell, Esquire P.O. Box 425 Hanisburg, Pennsylvania 17108 (717) 233-3339 Attorney for Plaintiffs CHRISTINE PICCIRILLI WILSON, THOMAS WILSON, WILLIAM PICCIRILLI AND ANNE PICCIRILLI PLAINTIFF EDWARD F. MCNAMARA AND ROBERT G. EYER DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-5942 CIVIL ACTION LAW IN CUSTODY ORDER OF COURT AND NOW, Friday, December 20, 2002 , upon consideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear before Dawn S. Sunday, Esq. , the conciliator, at 39 West Main Street, Mechanicsburg, PA 17055 on Thursday, January 16, 2003 at 8:30 AM for a Pre-Hearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute; or if this cannot be accomplished, to define and narrow the issues to be heard by the court, and to enter into a temporary order. All children age five or older may also be present at the conference. Failure to appear at the conference may provide grounds for entry of a temporary or permanent order. The court hereby directs the parties to furnish any and all existing Protection from Abuse orders, Special Relief orders, and Custody orders to the conciliator 48 hours prior to scheduled hearing. FOR THE COURT, By: /s/ Dawn S. Sunday. Esa. Custody Conciliator The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilites Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before 'the court. You must attend the scheduled conference or hearing. YOU SHOULD TAKE THIS PAPER TO YOUR ATrORN. EY AT ONCE. IF YOU DO NOT HAVE AN ATI'ORNEY OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 Telephone (717) 249-31166 NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 35 EAST HIGH STREET CARLISLE PA 17013 (717) 243-6090 ATTORNEY FOR DEFENDANT EYER CHRISTINE PICCIRILLI WILSON, : IN THE COURT OF COMMON PLEAS OF THOMAS WILSON, WILLIAM PICCIRILLI: CUMBERLAND COUNTY, PENNSYLVANIA AND ANNE PICCIRILLI : Plaintiffs : CIVIL ACTION - LAW V, -' _, EDWARD F. MCNAMARA AND ROBERT,: NO. 02 -5942 CIVIL TERM G. EYER : Defendants : IN CUSTODY PETITION FOR SPECIAL RELIEF AND NOW comes the defendant, Robert G. Eyer, by his attorney, Nathan C. Wolf, Esquire, and files this petition for special relief, representing as follows: 1. The defendant, Robert G. Eyer, (hereinafter "Stepfather") is an adult individual residing at 90 Southcrest Drive, York Haven, Newberry Township, York County, Pennsylvania. 2. The plaintiffs, William and Anne E. Piccirilli, (hereinafter "Grandparents") are adult individuals residing at 424 North 21st Street, Camp Hill, Cumberland County, Pennsylvania. 3. The plaintiffs, Christine Piccirilli Wilson and Thomas Wilson (hereinafter "Aunt" and "Uncle") are adult individuals residing at 11309 Water Point Circle, Reston, Virginia. 4. The defendant, Edward McNamara, (hereinafter "natural father"), is an adult individual residing at 536 Walnut Street, #10, Lemoyne, Cumberland County, Pennsylvania. 5. The natural mother of the child, Barbara Anne Eyer, died on November 26, 2002, at the Holy Spirit Hospital in East Pennsboro, Cumberland County, Pennsylvania after a long battle with cancer. 6. The minor child who is the subject of this custody action is Debra Elaine McNamara (born May 13, 1996, age 6 years). 7. The child resided with the mother and natural father from birth until June of 2001, and with the mother and stepfather from July 6, 2002, when mother and stepfather were married, until the mother's death in November 26, 2002. The child was in the care of the Grandparents between November 26, 2002 until December 3, 2002 with the permission of the Stepfather, due to furnace repairs occurring at the family residence. Since that time however, Grandparents have, without knowledge or permission of the Stepfather, arranged for the child to reside with Aunt and Uncle in Reston, Virginia. 8. Stepfather is a party to adoption proceedings that were commenced by the filing of a petition in this Court on or about September 6, 2002, which proceedings mother initiated and desired to be carried out. Counsel for mother and stepfather sent a consent form for termination of parental rights to the natural father, Edward McNamara and no response was ever received. Stepfather has no other information regarding any other custody proceeding concerning the child pending in a court of this Commonwealth. 9. Stepfather was designated, by the terms of the mother's last will and testament, executed on July 22, 2002 as the guardian of the child, in the event mother predeceased Stepfather. Moreover, Stepfather's daughter, Sherri Lynn Eyer, was identified as the temporary substitute guardian in the event both Mother and Stepfather passed away. A true and correct copy is attached hereto and incorporated herein as Exhibit "A". 10. Mother identified Stepfather as the child's guardian and emergency contact to the school where the child attended, prior to being left in the care of Grandparents. 11. Mother's clear wishes, expressed to multiple individuals prior to her death, appointed neither Grandparents, nor Aunt and Uncle as guardians of the child in the event of her death. Stepfather intends to present testimony of witnesses at trial along with written documentation detailing Mother's intentions as to guardianship of the child. 12. Stepfather believes and therefore avers that it is imperative that the child be returned to his custody pending the Court's ultimate resolution in this matter because the child has not been in school since her mother's death and has not seen her stepfather in nearly one month. Since the child was left in the care of Grandparents, neither they, nor Aunt and Uncle have permitted Stepfather to have any contact with the child either in person or by telephone. 13. Stepfather believes and therefore avers that the instant custody action and the actions preceding the filing of Plaintiffs' complaint in custody were designed to alienate and isolate the child from Stepfather and that such actions have been predicated on divergent religious beliefs held by Plaintiffs and the child's Mother and Stepfather. 14. Stepfather believes that the actions of the Plaintiffs show complete disregard for the child's ability to handle the emotional trauma she suffered with the loss of her mother, and that, when combined with the sudden change in the child's environment caused by the move to Virginia, Plaintiffs have acted in a manner that is wholly contrary to the child's best interests. 15. Stepfather, based upon information provided to him by Mother prior to her death, believes that the natural father poses a risk to the welfare of the child due to previous allegations of abuse which were followed by an extended period of non- involvement with the child's life, extending over two years prior to the instant action. 16. Stepfather, both personally and subsequently through counsel, attempted to resolve this matter with Grandparents without resorting to litigation and with the hope that the child's maternal relatives could be involved in the child's upbringing, and despite the good faith attempts to do so, Stepfather has been denied any and all contact with the child since December 3, 2002, and was threatened that if he tried to contact the child at the Grandparents' home or if he came to the Grandparents' home, that Grandparents would contact the police and have him charged with harassment. 17. Stepfather believes and therefore avers that the best interests and welfare of the child require that be awarded legal custody of the child, that Stepfather be awarded physical custody of the child pending the Custody Conciliation Conference so that she may be permitted to attend her school and return to the home she lived in prior to her mother's death, and that the other parties have only telephone contact with the child pending the conciliation conference. WHEREFORE, the Defendant, Robert G. Eyer, respectfully requests that this Honorable Court enter an order granting him physical custody of the child pending the Custody Conciliation Conference scheduled for January 16, 2003, and that the Court require the child to be returned to Defendant Eyer's custody immediately, and that the remaining parties be limited to telephone contact only pending the Conciliation Conference. December?/_., 2002 Att Plaintiff QU RE .......... 35 East High Street, Suites 2011202 Carlisle, Pennsylvania 17013-3052 (717) 243-6090 Supreme Court I.D. No. 87380 EXHIBIT A LAST WILL AND TESTAMENT OF Robert Georqe Eyer and Barbara Anne Eyer we, Robert G. Eyer and Barbara Anne Eyer, residents of 90 Southcrest Drive, York Haven, County of York, in the State of Pennsylvania, both being of sound mind, do make and declare this to be our Last will and Testament expressly revoking all our prior wills and codicils at any time made. I. PERSONAL REPRESENTATIVE: In the event of the demise of either spouse, the surviving spouse is named as Personal Representative of this Last will and Testament. However, if both husband and wife are deceased then we appoint sherri Lynn Eyer of 440 S. Orange St., Media, PA as alternate Personal Representative. Our Personal Representative shall be authorized to carry out all provisions of this will and pay all of our just debts, obligations and funeral expenses. I further provide our Personal Representative shall not be required to post surety bond in this or any other jurisdiction, and direct that no expert appraisal be made of our estate unless required by law. II. GUARDIAN: In the event both husband and wife are deceased, we appoint Sherri Lynn Eyer of 440 S. Orange St., Media, PA as temporary Guardian of said minor child. Monies placed in trust for Debra Elaine McNamara are to be held in irrevocable trust until her twenty-first birthday, and are not subject to distribution under this instrument. III. BEQUESTS: On the death of Robert G. Eyer, Michael Christopher Eyer is to receive the property at 120 White Dogwood Drive as detailed by the inforce rental/sales agreement entered into during November of 2001. The sales price of the property at any time is exactly equal to the principal balance of the mortgage. On the death of either spouse, all property not previously listed, passes to the surviving spouse. In the event that both ~pouses are deceased, the estate, excluding any property previously listed, is to be shared equally between our four children, Michael Christopher Eyer, Lisa Michelle worley, Sherri Lynn Eyer, and Debra Elaine McNamara. IN WITNESS WHEREOF, We have hereunto set our hands this 22nd day of ]uly, 2002. Signature ~__~1 ./- Signature -~ IV. WITNESSED: The testators have signed this will at the end and on each other separate page, and have declared or signified in our presence that it is their last will and testatment, and in the presence of the testators and each other we have hereunto subscribed our names this 22nd day of ]uly 1902. witness signature witness signature Address Address witness signature Address state of Pennsylvania County of York we, Robert G. Eyer, Barbara Elaine Eyer, ?/~~)~ ~-~ , and , the testators and the witnesses, respectively, whose names are signed to the attached and foregoing instrument, were sworn and declared to the undersigned that the testators signed the instrument as their Last will and that each of the witnesses, in the presence of the testator and each other, signed the will as a witness. Testator: witness witness VERIFICATION I do hereby verify ~:hat the acts set forth in this petition are true and correct. understand that false sta~.ements herein are made subject to the penalties of 18 Pa.C.S.A. Section 4904, reiating to unsworn falsification to authorities. Date: Robert G. E~.~ (SEAL) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CHRISTINE PICCIRILLI WILSON, THOMAS WILSON, WILLIAM PICCIRILLI & ANNE PICCIRILLI, Plaintiffs Vo EDWARD F. MCNAMARA, and ROBERT G. EYER, Defendants NO. 02-5942 CIVIL ACTION - LAW CUSTODY/VISITATION PRAECIPE FOR WITHDRAWAL OF APPEARANCE TO THE OFFICE OF PROTHONOTARY: Kindly withdraw the appearance of Stanley H. Mitchell, Esquire as counsel for Plaintiffs in the above-captioned action. Date: Respectfully submitted, ~1, Esquire P.O. Box 425 Harrisburg, PA 17109 Telephone: (717) 233-3339 PRAECIPE FOR ENTRY OF APPEARANCE TO THE OFFICE OF PROTHONOTARY: Kindly emer the appearance ofHowett, Kissinger & Conley, P.C., as counsel for Plaintiffs in the above-captioned action. Date: Respectfully submitted, ~arren J. ~olsi, Esquire HOWETT, KISSINGER & CONLEY, P.C. 130 Walnut Street/P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 35 EAST HIGH STREET CARLISLE PA '170'13 (7t 7) 243-~000 ATTORNEY FOR DEFENDANT EYER CHRISTINE PICCIRILLI WILSON, THOMAS WILSON, WILLIAM PICCIRILLI AND ANNE PICCIRILLI Plaintiffs v. EDWARD F. MCNAMARA AND ROBERT, G. EYER Defendants IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02 -5942 CIVIL TERM IN CUSTODY PETITION FOR SPECIAL AND NOW comes the defendant, Robert G. Eyer, Iby his attorney, Nathan C. Wolf, Esquire, and files this petition for special relief, representing as follows: 1. The defendant, Robert G. Eyer, (hereinafter "Stepfather") is an adult individual residing at 90 Southcrest Drive, York Haven, Newberry Township, York County, Pennsylvania. 2. The plaintiffs, William and Anne E. Piccirilli, (hereinafter "Grandparents") are adult individuals residing at 424 North 21st Street, Camp Hill, Cumberland County, Pennsylvania. 3. The plaintiffs, Christine Piccirilli Wilson and Thomas Wilson (hereinafter "Aunt" and "Uncle") are adult individuals residing at 11309 Water Point Circle, Reston, Virginia. 4. The defendant, Edward McNamara, (hereinafter "natural father"), is an adult individual residing at 536 Walnut Street, #10, Lemoyne, Cumberland County, Pennsylvania. 5. The natural mother of the child, Barbara Anne Eyer, died on November 26, 2002, at the Holy Spirit Hospital in East Pennsboro, Cumberland County, Pennsylvania after a long baffle with cancer. 6. The minor child who is the subject of this custody action is Debra Elaine McNamara (born May 13, 1996, age 6 years). 7. The child resided with the mother and natural father from birth until June of 2001, and with the mother and stepfather from July 6, ;.)002, when mother and stepfather were married, until the mother's death in November 26, 2002. The child was in the care of the Grandparents between November 26, 2002 until December 3, 2002 with the permission of the Stepfather, due to furnace repairs occurring at the family residence. Since that time however, Grandparents have, without knowledge or permission of the Stepfather, arranged for the child to reside with Aunt and Uncle in Reston, Virginia. 8. Stepfather is a party to adoption proceedings that were commenced by the filing of a petition in this Court on or about September 6, 2002, which proceedings mother initiated and desired to be carded out. Counsel for mother and stepfather sent a consent form for termination of parental rights to the natural father, Edward McNamara and no response was ever received. Stepfather has no other information regarding any other custody proceeding concerning the child pending in a court of this Commonwealth. 9. Stepfather was designated, by the terms of the mother's last will and testament, executed on July 22, 2002 as the guardian of the child, in the event mother predeceased Stepfather. Moreover, Stepfather's daughter, Sherri Lynn Eyer, was identified as the temporary substitute guardian in the event both Mother and Stepfather passed away. A true and correct copy is attached hereto and incorporated herein as Exhibit "A". 10. Mother identified Stepfather as the child's guardian and emergency contact to the school where the child attended, prior to being left in the care of Grandparents. 11. Mother's clear wishes, expressed to multiple individuals prior to her death, appointed neither Grandparents, nor Aunt and Uncle as guardians of the child in the event of her death. Stepfather intends to present testimony of witnesses at trial along with written documentation detailing Mother's intentions as to guardianship of the child. 12. Stepfather believes and therefore avers that it is imperative that the child be returned to his custody pending the Court's ultimate resolution in this matter because the child has not been in school since her mother's death and has not seen her stepfather in neady one month. Since the child was left in the care of Grandparents, neither they, nor Aunt and Uncle have permitted Stepfather to have any contact with the child either in person or by telephone. 13. Stepfather believes and therefore avers that the instant custody action and the actions preceding the filing of Plaintiffs' complaint in custody were designed to alienate and isolate the child from Stepfather and that such actions have been predicated on divergent religious beliefs held by Plaintiffs and the child's Mother and Stepfather. 14. Stepfather believes that the actions of the Plaintiffs show complete disregard for the child's ability to handle the emotional trauma she suffered with the loss of her mother, and that, when combined with the sudden ,change in the child's environment caused by the move to Virginia, Plaintiffs have acted in a manner that is wholly contrary to the child's best interests. 15. Stepfather, based upon information provided to him by Mother prior to her death, believes that the natural father poses a risk to the welfare of the child due to previous allegations of abuse which were followed by an extended period of non- involvement with the child's life, extending over two years prior to the instant action. 16. Stepfather, both personally and subsequently through counsel, attempted to resolve this matter with Grandparents without resorting to litigation and with the hope that the child's maternal relatives could be involved in the child's upbringing, and despite the good faith attempts to do so, Stepfather has been denied any and all contact with the child since December 3, 2002, and was threatened that if he tried to contact the child at the Grandparents' home or if he came to the Grandparents' home, that Grandparents would contact the police and have him cha~rged with harassment. 17. Stepfather believes and therefore avers that the best interests and welfare of the child require that be awarded legal custody of the child, that Stepfather be awarded physical custody of the child pending the Custody Conciliation Conference so that she may be permitted to attend her school and return to the home she lived in pdor to her mother's death, and that the other parties have only telephone contact with the child pending the conciliation conference. WHEREFORE, the Defendant, Robert G. Eyer, respectfully requests that this Honorable Court enter an order granting him physical custody of the child pending the Custody Conciliation Conference scheduled for January 16, 2003, and that the Court require the child to be returned to Defendant Eyer's custody immediately, and that the remaining parties be limited to telephone contact only pending the Conciliation Conference. December3_~., 2002 NAT~WOLF, ESQUIRE Attorney fer Plaintiff 35 East High Street, Suites 201/202 Carlisle, Pennsylvania 17013-3052 (717) 243-6090 Supreme Court I.D. No. 87380 EXHIBIT A LAST WILL AND TESTAMENT OF Robert George Eyer and Barbara Anne Eyer we, Robert G. Eyer and Barbara Anne Eyer, residents of 90 Southcrest Drive, York Haven, County of York, in the State of Pennsylvania, both being of sound mind, do make and declare this to be our Last will and Testament expressly revoking all our prior wills and codicils at any time made. I. PERSONAL REPRESENTATIVE: In the event of the demise of either spouse, the surviving spouse is named as Personal Representative of this Last will and Testament. However, if both husband and wife are deceased then we appoint Sherri Lynn Eyer of 440 S. Orange St., Media, PA as alternate Personal Representative. Our Personal Representative shall be authorized to carry out all provisions of this will and pay all of our just debts, obligations and funeral expenses. I further provide our Personal Representative shall not be required to post surety bond in this or any other jurisdiction, and direct that no expert appraisal be made of our estate unless required by 1 aw. II. GUARDIAN: In the event both husband and wife are deceased, we appoint Sherri Lynn Eyer of 440 S. Orange St., Media, PA as temporary Guardian of said minor child. Monies placed in trust for Debra Elaine McNamara are to be held in irrevocable trust until her twenty-first birthday, and are not subject to distribution under this instrument. III. BEQUESTS: On the death of Robert G. Eyer, ~lichael Christopher Eyer is to receive the property at 120 white Dogwood Drive as detailed by the inforce rental/sales agreement entered into during November of 2001. The sales price of the property at any time is exactly equal to the principal balance of the mortgage. on the death of either spouse, all property not previously listed, passes to the surviving spouse. In the event that both ,spouses are deceased, the estate, excluding any property previously listed, 'is to be shared equally between our four children, Michael Christopher Eyer, Lisa f4i chel I e worley, Sherri Lynn Eyer, and Debra Elaine f4cNamara. IN WITNESS WHEREOF, we have hereunto '.set our hands this 22nd day of 3uly, 2002. Signature /'~ ~ ./ Signature-'~ IV. WITNESSED: The testators have signed this will at the end and on each other separate page, and have declared or signified in our presence that it is their last will and testatment, and in the presence of the testators and each other we have hereunto subscribed our names this 22nd day of 3uly 1902. witness Signature witness Signature Address Address witness Signature Address state of Pennsylvania County of York we, Robert G. Eyer, Barbara Elaine Eyer, , and , the testators and the witnesses, respectively, whose names are signed to the attached and foregoing instrument, were sworn and declared to the undersigned that the testators signed the instrument as their Last Will and that each of the witnesses, in the presence of the testator and each other, signed the will as a witness. Testator' ! witness witness VERIFICATION I do hereby verify that the acts set forth in this petition are true and correct. understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unswom falsification to authorities. Date: (SEAL) CHRISTINE PICCIRILLI WILSON, THOMAS WILSON, WILLIAM PlCClRILLI AND ANNE PlCClRILLI, PLAINTIFFS EDWARD F. MCNAMARA AND ROBERT G. EYER, DEFENDANTS AND NOW, this IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-5942 CIVIL TERM ORDER OF COURT '"~~ day of December, 2002, the petition seeking an order of special relief prior to the conciliation conference now scheduled for January 16, 2003, IS DENIED. Max J. Smith, Jr., Esquire Darren J. Hoist, Esquire Nathan C. Wolf, Esquire :sal Edgar B:B~'yle-y, ~1~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND' COUNTY, PENNSYLVANIA CHRISTINE PICCIRILLI WILSON, THOMAS WILSON, WILLIAM PICCIRILLI AND ANNE PICCIRILLI, Plaintiffs Vo EDWARD F. MCNAMARA AND ROBERT G. EYER, Defendants NO. 02-5942 CIVIL TERM CIVIL ACTION - LAW CUSTODY/VISITATION PLAINTIFFS' RESPONSE TO DEFENDANT EYER'S PETITION FOR SPECIAL RELIEF AND NOW, come Plaintiffs, Christine Piccirilli Wilson, Thomas Wilson, William Piccirilli and Anne Piccirilli (hereafter referred to collectively as "Plaintiffs"), by and through their counsel, Howett, Kissinger & Conley, P.C., who hereby file the instant Response to Defendant Eyer's Petition for Special Relief and in support thereof respond as follows: 1. Admitted. Hereinafter, Defendant Eyer is referred to as "Stepfather." By way of further response, Stepfather, who is in his late fifties, has a criminal record and whose children are adults, has known the minor child less than one (1) year. As a stepparent who has never stood in loco parentis, Stepfather has no standing to seek custody in this case. 2. Admitted. Hereinafter, William and Anne Piccirilli are referred to as "Grandparents." 3. Admitted. Hereinafter, Christine and Thomas Wilson, the natural aunt and uncle, are referred to as "the Wilsons." 4. Admitted. Hereinafter, Defendant McNamara is referred to as "Father." 5. Admitted. By way of further response, the entire time the natural mother of the child, Barbara Anne Eyer ("Mother"), was married to Stepfather, she was terminally ill with cancer. Moreover, Mother only met Stepfatlher in April of 2002 (three months before their marriage on July 6, 2002) and was only married to Stepfather for four (4) months before her pre-mature death. Thus, Mother knew Stepfather less than one (1) year, and the amount of time Stepfather has known the minor child is marginal at best. 6. Admitted. By way of further response, the minor child has had no involvement with Father in over three (3) years, and has established no relationship with him, and has known Stepfather for a total of only seven (7) months, during which time she established no relationship with him. In fact, for the entire period of time that Stepfather has known the child, the child has been cared for either by Mother or, when Mother was too ill to care for the child, Grandparents. The child has never spent one (1) night alone with Stepfather nor does the child desire to live with Stepfather. 7. Admitted in part; denied in part. It is admitted that the minor child resided with the Mother and Father from the child's birth until the child was approximately three (3) years old. It is denied that the child resided with Father until June 2001. Since that time, however, Father has had no involvement with the minor child, save for paying monthly court ordered child support. As to Stepfather, it is admitted that Mother resided with him from July 6, 2002, the date of marriage, until her death on November 26, 2002, or a total of only four (4) months. It is denied, however, that the child resided with Stepfather throughout that time. The child only began to reside with Mother and Stepfather on July 22, 2002 and was at the residence only when Mother was well enough to take care of the child and was not hospitalized. For the periods of time that Mother was hospitalized, which were frequent in the months leading up to her death, the child resided with Grandparents and they cared for the child.. There was little time between July 22, 2002 and November 26, 2002 when the child actually resided together with the natural Mother and Stepfather. It is denied that Stepfather ever cared for the child or that stepfather has ever shown care or affection towards the child. Moreover, it is expressly denied that Grandparents cared for the child subsequent to November 26, 2002 because of"fumace repairs occurring at the: family residence" as averred by Stepfather. Rather, Grandparents cared for the child with the expressed acquiescence of Mother (when she was hospitalized) and later Stepfather, as he wanted to have no involvement with the minor child following Mother's death. When Mother was last hospitalized on November 21, 2002, Stepfather dropped the child off with Grandparents, with the child infected with lice, and told Grandparents to take care of the child and her lice infestation. Grandparents cared for the child exclusively fi.om November 21st until December 3, 2002, when the child went to live with the Wilson, who have been close to the child throughout the child's life and who have forged parent-child bonds with the child. The child has been in the exclusive care and custody of the Wilsons since December 3fa. 8. Admitted in part; denied in part. It is achnitted solely that an adoption proceeding was commenced on or about September 6, 2002. It is expressly denied, however, that Mother truly desired the adoption. Rather, Mother felt pressured by Stepfather to have him adopt the child after the two married. It is further denied that the adoption was ever finalized, as Father never voluntarily relinquished his parental rights, nor did the court involuntarily terminate his rights. By way of further response, it is denied that Stepfather sought the adoption for moral or familial reasons. At no time throughout the course of the adoption proceedings did Stepfather ever exhibit any joy or emotion about the prospect of adopting the child nor did he even take the time to meet with counsel during the adoption process. 9. Denied. It is expressly denied that Stepfather is designated a testamentary guardian pursuant to the Mother's Last Will and Testament. Said Last Will and Testament, which is attached to Stepfather's Petition as Exhibit "A," is a writing and therefore speaks for itself. Said writing is unambiguous and nowhere in s. aid writing does it specifically state that Stepfather is to be guardian upon Mother's death. Moreover, it is denied that such a guardianship designation would be legally enforceable as, pursuant to 20 Pa.C.S.A. §2519, Stepfather could not have been appointed a testamentary guardian inasmuch as Mother was not the last surviving biological parent. 10. Denied. It is denied that Stepfather, and not Grandparents or the Wilsons, was named as guardian and emergency contact person. Moreover, any such designation is irrelevant to both the legal determination as to whether Stepfather was in fact appointed a testamentary guardian and the determination of what custodial arrangement is in the minor child's best interest. 11. Neither admitted nor denied as Plaintiffs are without knowledge as to what Mother said to anyone other than themselves and close friends. To the extent as an answer is required, it is denied that Mother intended Stepfather to be the guardian of the child or that Mother never expressed her desire to have the child raised by her family. In fact, Mother previously spoke to the Wilsons about caring for the child upon Mother's death. Moreover, it is denied that such a designation, if in fact true, is legally enforceable under Pennsylvania law. 12. Denied. It is denied that it is either imperative or in the best interest of the child to be returned to Stepfather, who has known the child for less than one (1) year, and has never cared for the child. Moreover, it is denied that the child has not been in school since her Mother's death as the child is currently enrolled in Buzz Aldrin Elementary School in the Fairfax County School District in Virginia and has been enrolled therein since about December 16, 2002. It is admitted that neither the Grandparents nor the Wilsons initiated contact between Stepfather and the child, either personally or by telephone, as it is their corttention that Stepfather has no standing to assert custody in this action and, given Stepfather's criminal background, which includes a Federal conviction for drug trafficking and weapons, it is clearly not in the best interest of the child. Moreover, Stepfather never attempted to make contact subsequent to the filing of the instant action. Also, several professionals have advised Plaintiffs that it would be traumatic for the child to return to Stepfather. 13. Denied. It is denied that Plaintiffs filed the instant action to "alienate and isolate" the child from Stepfather. Furthermore, inasmuch as Stepfather has no legal claim to custody, it is impossible for alienation of affection to occur. Rather, said action was filed because custody must be resolved in light of Mother's death. Moreover, it is denied that any action in this case is predicated upon divergent religious beliefs. 14. Denied. It is denied that any action in this case up to this point has contravened the child's best interest. Rather, the child currently is thriving in a loving and nurturing environment, with careful attention to her medical and social needs; the child is enrolled in an excellent school district; and the child is receiving appropriate care to handle the emotional trauma of losing her mother. A custodial arrangement other than the current arrangement is believed by Plaintiffs to be contrary to the child's best interest. Returning the child to Stepfather would cause irreparable harm to the child. 15. Admitted. Both Grandparents and the Wilsons believe that Father poses a severe risk to the welfare of the child in light of previous allegations of abuse and given his extensive non-involvement with the child throughout the child's life. 16. Denied. Subsequent to the filing of this action, Stepfather never attempted to initiate contact with the child. In fact, Stepfather conceded that he was not suited to care for the child. It is further denied that Plaintiffs ever threatened Stepfather; rather, it is Stepfather who threatened Plaintiffs and who contacted the police. 17. Neither admitted nor denied inasmuch as said paragraph constitutes a conclusion of law to which no response is required. To the extent a response is required, it is denied that it is the child's best interest for Stepfather to be awarded legal custody of the child and primary physical of the child either pending the conciliation conference or after full heating. Rather, it is in the best interest of the child to maintain the status quo both pending the conciliation and after heating. WHEREFORE, Plaintiffs, Christine Piccirilli Wilson, Thomas Wilson, William and Anne Piccirilli, respectfully request that this Honorable Court maintain the status quo pending the conciliation and thereafter. Date: )~~~ Respectfully submitted, -~Dan'en J.~Iols~, ..squire HOWETT, KISSINGER & CONLEY, P.C. 130 Walnut Street P.O. Box 810 Harrisburg, PA 1'7108 Telephone: (717) 234-2616 Counsel for Plaintiffs Christine Piccirilli Wilson, Thomas Wilson, William and Anne Piccirilli IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CHRISTINE PICCIRILLI WILSON, THOMAS WILSON, WILLIAM PICCIRILLI AND ANNE PICCIRILLI, Plaintiffs Vo EDWARD F. MCNAMARA AND ROBERT G. EYER, Defendants ) ) ) ) ) ) ) ) ) ) NO. 02-5942 CIVIL TERM CIVIL ACTION - LAW CUSTODY/VISITATION CERTIFICATE OF SERVICE I, Darren J. Holst, Esquire, counsel for Christine Piccirilli Wilson, Thomas Wilson, William and Anne Piccirilli, Plaintiffs in the above-captioned action, hereby certify that a true and correct copy of the foregoing Response to Defendant Eyer's Petition for Special Relief was served upon Nathan C. Wolf, Esquire, counsel for Robert G. Eyer, Defendant, and Max J. Smith, Esquire, counsel for Defendant, Edward F. McNamara by facsi:mile and by depositing same in the United States mail, first class, on January 14, 2003, addressed as follows: Nathan C. Wolf, Esquire 35 East High Street, Suites 201/1202 Carlisle, PA 17013-3052 Date: Max J. Smith, Jr., Esquire JAMES, SMITH, DURKIN & CONNELLY, LLP. 134 Sipe Avenue Hummelstown, PA 17036 ~en J. Holstr~,squi~e HOWETT, KISS1NGER & CONLEY, P.C. 130 Walnut Street / P.O. Box 810 Harrisburg, PA 17108 Telephone: 717-234-2616 Counsel for Plaintiffs Christine Piccirilli Wilson, Thomas Wilson, William and Anne Piccirilli VERIFICATION I, William & Anne Piccirilli, hereby swear and affirm that the facts contained in the foregoing Plaintiffs' Response to Defendant Eyer'$ PetitScm fnr . ~qr~qal _~9!i~f are tree and correct to the best of my knowledge, information and belief and are made subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsification to authorities. Willihin P~cirilli ~' Date: 1/14/03 VERIFICATION I, Darren J. Hoist, Esquire, hereby swear and affirm that the facts contained in the foregoing Response to Defendant Eyer's Petition for Special Relief are true and correct to the best of my knowledge, information, and belief based upon information provided by Plaintiffs Christine and Thomas Wilson and from my own first-hand knovqedge and that said facts are made subject to the penalties of 18 Pa. C.S. §4904 relating to tmswom falsification to authorities. Plaintiffs Christine and Thomas Wilson are outside the jurisdiction of this Court such that their verification cannot be timely obtained. Date: /, t 7 ~D'~en J. H, dlst, Esq ' CHRISTINE PICCIRILLI WILSON, THOMAS WILSON, WILLIAM PICCIRILLI AND ANNE PICCIRILLI, Plaintiffs V. EDWARD F. MCNAMARA and ROBERT G. EYER, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-5942 CIVIL ACTION - LAW IN CUSTODY PETITION TO DETERMINE STA3NDING AND NOW, comes the Defendant, Edward F. McNamara, by and through his attomeys, James, Smith, Durkin & Connelly, LLP, and petitions this Honor.able Court to determine the standing of Plaintiffs, Christine Piccirilli Wils,on, Thomas Wilson, William Piccirilli, and Anne Piccirilli, and Defendant, Robert G. Eyer, to pursue custody of the subject minor child, Debra Elaine McNamara, in the above-captioned custody action. In opposition to the standing of said Plaintiffs, Defendant avers as follows: The Defendant, Edward F. McNamara (herein,after "Natural Father"), currently residing in Lemoyne, Cumberland C. ounty, Pennsylvania, is the natural parent of Debra Elaine McNamara, date of birth May 13, 1996 (hereinafter the "minor child"). The minor child's natural mother, Barbara Arme Eyer (hereinafter "Mother"), died on November 26, 2002 in Cmnbefland County, Pennsylvania, having been ill with cancer. The Plaintiffs, William and Anne E. Piccirilli (hereinatter "Grandparents"), currently residing in Camp Hill, Cumberland County, Pennsylvania, are the maternal grandparents of the minor child. The Plaintiffs, Christine Piccirilli Wilson and Thomas Wilson (hereinafter "Aunt" and "Uncle" respectively), currently residing in Reston, Virginia, are the maternal aunt and uncle of the minor child. Defendant, Robert G. Eyer (hereinafter "Stepfather"), currently reSiding in York Haven, York County, Pennsylvania, is the stepfather of the minor child, having been married to Mother from Jtdy 6, 2002 until the time of her death. For the first three (3) years of her life, the minor child resided with Mother and Father. In 1999, Mother and Father's relationship deteriorated, culminating with Mother instituting unfounded sexual abuse allegations against Father pertaining to the minor child. The allegations by Mother against Father precluded Father from seeing his daughter for many months, despite the fact that the charges were determined to be unfounded. No criminal charges were ever filed against Father with respect to said allegations. Despite the falsity of the allegations against Father, Mother's family developed deep personal resentment towards/lather and served as a constant impediment to Father's partial custody with the minor child, 10. 11. 12. 13. 14. 15. 16. 17. Despite his repeated requests to visit with his daughter, Father did not see his child from November 1999 until early 2000. Since such time, Father has had little to no contact with his daughter, due to the lingering effects of the salacious and unfounded allegations lodged against him by Mother prior to her death. It is believed and therefore averred that the minor child resided with Mother from the time of her separation from Father until approximately July 6, 2002. From July 6, 2002 until Mother's death on November 26, 2002, the minor child resided with Mother and Stepfather. It is believed and therefore averred that the minor child was in the care of the Grandparents between November 26, 2002 until December 3, 2002. During such time, without notice to Father or Stepfather, and without the permission of Father or Stepfather, Grandparents unilaterally coordinated and facilitated the child's relocation to Reston, Virginia for purposes of Aunt and Uncle assuming custody of the child. The minor child has been in the custody of Aunt and Uncle since December 3, 2002. It is believed and therefore averred that prior to December 3, 2002, Aunt and Uncle had never taken custody of the minor child. Father respectfully submits that Aunt and Uncle are "third parties" to the custody dispute concerning the minor child. 18. 19. 20. 21. 22. 23. As third parties, Aunt and Uncle cannot demonstrate a prima facie right to custody of the minor child. Aunt and Uncle have not stood in loco paremis to the child as such term is def'med by Pennsylvania law. Accordingly, Aunt and Uncle lack standing to pursue custody. Father respectfully submits that Grandparents are also "third parties" to the custody dispute concerning the child. Grandparents do not qualify for standing to pursue custody of the minor child pursuant to the provisions of Section 5313 of the Pennsylvania Domestic Relations Code, 23 Pa.C.S.A. §5313(b). Grandparents have failed to assume the role and responsibilities of the child's parent for a period of twelve (12) months as required by Section 5313(b)(3). Accordingly, Aunt and Uncle lack standing to pursue custody. Stepfather, having a serious criminal record mad having known the child for less than one (1) year, has never stood in locoparentis, and therefore lacks standing to pursue custody. WHEREFORE, Defendant, Edward F. McNamara, respectfully requests that this Honorable Court determine that Plaintiffs, Christine Piccirilli Wilson, Thomas Wilson, William Piccirilli, and Anne Piccirilli, and Defendant, Robert G. Eyer, lack standing to pursue custody of the minor child, Debra Elaine McNamara. Date: January 24, 2003 Respectfully submitted, JAMES, SMITH, DURKIN & CONNELLY LLP MAX J. SMITH, JR., ESQUIRE I.D. No. 32114 JARAD W. HANDELMAN, ESQUIRE I.D. No. 82629 P.O. Box 650 Hershey, PA 170313 (717) 533-3280 Attorneys for Defendant, Edward F. McNamara CHRISTINE PICCIRILLI WILSON, THOMAS WILSON, WILLIAM PICCIRILLI AND ANNE PICCIRILLI, Plaintiffs V. EDWARD F. MCNAMARA and ROBERT G. EYER, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-5942 CIVIL ACTION - LAW IN CUSTODY CERTIFICATE OF SERVICE AND NOW, this ~) q day of January, 2003, I, MAX J. SMITH, JR., Esquire, Attorney for Petitioner, hereby certify that I have this day sent a copy of Petition to Determine Standing by depositing a certified copy of the same in the United States mail. postage prepaid, at Hershey, Pennsylvania, addressed to: Howett, Kissinger & Miles, P.C. Attn: Darren J. Holst, Esquire 130 Walnut Street P.O. Box 810 Harrisburg, PA 17108 Nathan C. Wolf, Esquire Hitner House Suites 201 & 202 35 East High Street Carlisle, PA 17013 MAX J. SMITH, JR, Esquire I.D. No. 32114 JARAD W. HANDELMAN, Esquire I.D. No. 82629 James, Smith, DurkJin & Connelly Li~P P.O. Box 650 Hershey, PA 17033 (717) 533-3280 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CHRISTINE PICCIRILLI WILSON, THOMAS WILSON, WILLIAM PICCIRILLI AND ANNE PICCIRILLI, Plaintiffs EDWARD F. MCNAMARA AND ROBERT G. EYER, Defendants NO. 02-5942 CIVIL TERM CIVIL ACTION - LAW CUSTODY/VISITATION AMENDED COMPLAINT IN CUSTODY AND NOW, comes Plaintiffs, Christine Piccirilli Wilson, Thomas Wilson, William and Anne Piccirilli, by and through their counsel, Howett, Kissinger & Conley, P.C., who upon directive of the Court files the instant Amended Complaint in Custody and avers as follows: 1. In accordance with Rule 1019(g) of the Rules of Civil Procedure, Plaintiffs hereby incorporate herein by reference in its entirety, save for the wherefore clause, the Complaint in Custody filed on December 16, 2002. WHEREFORE, Plaintiffs respectfully request this Honorable Court enter an order awarding either Plaintiffs Christine and Thomas Wilson or Plaintiffs William and Anne Piccirilli, or both parties collectively, primary physical custody of the minor child. Respectfully submitted, -45~arren J. Ho3~, Esquir/ "e ' HOWETT, ~SS~GER & CO~EY, P.C. 130 Walnut Street P.O. Box 810 H~sburg, PA 17108 Telephone: (717) 234-2616 Counsel for Plaintiffs, C~istine Wilson Piccifilli Thomas Wilson, Willim & ~e Piccifilli IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CHRISTINE PICCIRILLI WILSON, THOMAS WILSON, WILLIAM PICCIRILLI AND ANNE PICCIRILLI, Plaintiffs EDWARD F. MCNAMARA AND ROBERT G. EYER, Defendants NO. 02-5942 CIVIL TERM CIVIL ACTION - LAW CUSTODY/VISITATION CERTIFICATE OF SERVICE I, Darren J. Hoist, Esquire, counsel for Christine Wilson Piccirilli, Thomas Wilson, William and Anne Piccirilli, Plaintiffs in the above-captioned action, hereby certify that a true and correct copy of the foregoing Amended Complaint for Custody was served upon Nathan C. Wolf, Esquire, counsel for Defendant Robert G. Eyer, and Max J. Smith, Jr., Esquire, counsel for Defendant, Edward F. McNamara, by depositing same in the United States mail, first class, on January 17, 2003, addressed as follows: Nathan C. Wolf, Esquire Hitner House Suites 201 & 202 35 East High Street Carlisle, PA 17013 Date: Max J. Smith, Jr., Esquire JAMES, SMITH, DURKIN & CONNELLY, LLP. 134 Sipe Avenue Hummelstown, PA 17036 ~ ~en J. Holst,~sqmrl e HOWETT, KISSINGER & CONLEY, P.C. 130 Walnut Street / P.O. Box 810 Harrisburg, PA 17108 Telephone: 717-234-2616 Counsel for Plaintiffs, Christine Piccirilli Wilson, Thomas Wilson, William and Anne Piccirilli IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CHRISTINE PICCIRILLI WILSON, THOMAS WILSON, WILLIAM PICCIRILLI AND ANNE PICCIRILLI, Plaintiffs Vo EDWARD F. MCNAMARA AND ROBERT G. EYER, Defendants NO.. 02-5942 CIVIL TERM CIVIL ACTION - LAW CUSTODY/VISITATION PLAINTIFFS' PETITION TO DETERMINE STANDING AND NOW, come Plaintiffs, Christine Piccirilli Wilson and Thomas Wilson, by and through their counsel, Howett, Kissinger & Conley, P.C., who hereby file the instant Petition to Determine Standing and in support thereof aver as follows: 1. Petitioners are Christine Piccirilli Wilson and Thomas Wilson (hereinafter the "Wilsons"), maternal aunt and uncle, Plaintiffs in the above-captioned custody action. 2. Respondents are William and Anne Piccirilli (hereinafter "Grandparents"), Edward F. McNamara (hereinafter "Father"), and Robert G. Eyer (hereinafter "Stepfather"), Plaintiffs and Defendants in the above-captioned custody action. 3. The subject minor child is Debra Elaine McNamara, age six (6), born out of wedlock on May 13, 1996. The natural mother of the child, Barbara Anne Piccirilli-Eyer, passed away on November 26, 2002 from breast cancer. 4. During a custody conciliation before Dawn Sunday, Esquire, counsel for the respective parties made separate challenges to the standing of Stepfather and the Wilsons to seek custody in this matter. 5. During the conciliation, the conciliator contacted the Honorable Edgar B. Bayley of the Court of Common Pleas of Cumberland County to relay the matter to the court. Judge Bayley ordered counsel to file petitions to determine standing and prepare memoranda of law in support of their respective positions. 6. Pursuant to the recent Pennsylvania Supreme Court case R. M. v. Baxter, 777 A.2d 446 (Pa. 2001), Grandparents have automatic standing under the Grandparent Custody and Visitation Statute, 23 Pa.C.S.A. §5313, to maintain a claim for custody. 7. For the Wilsons to have standing as mate:real aunt and uncle, they must demonstrate that they stand or have stood in loco parentis to the child. For the following reasons, the Wilsons have in loco parentis status: (a) The Wilsons were placed in the situation of assuming obligations incident to the parental relationship such that they have assumed and discharged necessary parental duties on behalf of the child; (b) As a result of Mother's protracted illness with breast cancer, the Wilsons cared for both Mother and the child during significant periods of time and, as such, developed strong psychological bonds with the child, and the Wilsons have provided nurture and affection to the child throughout the child's lifetime; (c) Given Mother's protracted illness, and the need for the Wilsons to care for the child, the Wilsons assumed, in the child's eye, the role and mother and father. The Wilsons assumed parental rules and discharged their parental duties upon the express wish of Mother who, at the time, was sole custodian of the child; (d) As a result of Mother's free-spirited lifestyle, the Wilsons acted as custodian for periods of time throughout the child's life, providing emotional, physical and financial stability. (e) In addition to caring for the child during periods of time throughout the child's life with Mother, the Wilsons provided exclusive care and guardianship to the child for the period December 3, 2002 until the present when Judge Bayley ordered the child to be returned to Grandparents on a temporary basis pending a custody evaluation and heating. 8. The only way Stepfather has standing in this case is if it is demonstrated he has stood in loco parentis. For the following reasons, Stepfather does not stand, nor has he ever stood, in loco parentis to the child; (a) Stepfather and Mother were married for only four (4) months; as such, Stepfather never established a psychological bond with the child, and the child does not desire to spend time with him; (b) Throughout Mother's and Stepfather's brief four (4) month marriage, Mother was terminally ill with breast cancer and, therefore, was in and out of the hospital. During such hospitalizations, the child was cared for exclusively by Grandparents and the Wilsons. (c) Mother, Stepfather and the child only lived as a familial unit for approximately four (4) weeks out of the four (4) month marriage, during which time Stepfather provided no care or affection towards the child. During said four (4) week period, Stepfather assumed no parental obligations and, in fact, discharged no parental duties. 9. Petitioners believe, and therefore aver, that the facts of this case demonstrate that, while the Wilsons do stand in loco parentis, Stepfather does not, and has never, stood in loco parentis; therefore, Stepfather lacks standing to seek custody in this case. WHEREFORE, Petitioners respectfully request the Court order and decree as follows: (a) Plaintiffs, Christine and Thomas Wilson, the maternal aunt and uncle, have stood in loco parentis and, accordingly, have standing to seek primary physical custody of the minor child; and (b) Defendant, Robert G. Eyer, stepfather, does not stand in loco parentis and, accordingly, has no standing to seek custody of the minor child. Date: Respectfully submi.tted,~, ~t~arren J. H9gst, Esquire HOWETT, KISSINGER & CONLEY, P.C. 130 Walnut Street P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Plaintiffs, Christine Wilson Piccirilli and Thomas Wilson VERIFICATION I, Christine & Thomas Wilson, hereby swear and affirm that the facts contained in the foregoing Plaintiffs' Petition to Determine St2mding are true and correct to the best of my knowledge, information mad belief and are made subject to the penalties of 18 Pa.C.S. {}4904 relating to unsworn falsification to authorities. Date: 1/24/03 Christine WilaO~ -- Date: 1/24/03 Thomas Wilson ' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CHRISTINE PICCIRILLI WILSON, THOMAS WILSON, WILLIAM PICCIRILLI AND ANNE PICCIRILLI, Plaintiffs Vo EDWARD F. MCNAMARA AND ROBERT G. EYER, Defendants NO. ) ) ) ) ) ) ) 02-:5942 CIVIL TERM CIVIL ACTION - LAW CUSTODY/VISITATION CERTIFICATE OF SERVICE I, Darren J. Holst, Esquire, counsel for Christine Piccirilli Wilson and Thomas Wilson, Plaintiffs in the above-captioned action, hereby certify that a tree and correct copy of the foregoing Petition to Determine Standing was served upon Nathan C. Wolf, Esquire, counsel for Defendant, Robert G. Eyer, Max J. Smith, Jr., Esquire, counsel for Defendant, Edward F. McNarnara, Samuel L. Andes, Esquire, counsel for William and Anne Piccirilli, by facsimile and by depositing same in the United States mail, first class, on January 24, 2003, addressed as follows: Nathan C. Wolf, Esquire 35 East High Street, Suite 201/202. Carlisle, PA 17013-3052 Max J. Smith, Jr., Esquire JAMES, SMITH, DURKIN & CONNELLY, LLP. 134 Sipe Avenue Hummelstown, PA 17036 Date: Samuel L. Andes, Esquire 525 North Twelfth Street Lemoyne, PA 17043 rren J. Hol~, Esq~re ~ r HOWETT, I4,ISSINGER & CONLEY, P.C. 130 Walnut Street/P.O. Box 810 Harrisburg, PA 17108 Telephone: 717-234-2616 Counsel for Plaintiffs, Christine Piccirilli Wilson, Thomas Wilson CHRISTINE PICCIRILLI WILSON, THOMAS WILSON, WILLIAM PICCIRILLI AND ANNE PICCIRILLI, Plaintiffs Vo EDWARD F. MCNAMARAAND ROBERT EYER, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-5942 CIVIL TERM ORDER OF COURT AND NOW, this 31st day of January, 2003, upon consideration of the attached custody conciliation report, and following a chambers conference with counsel for all parties this date, IT IS ORDERED: 1. Pending further order of court, the maternal aunt, Christine Wilson, and Thomas Wilson shall have temporary legal and physical custody of Debra Elaine McNamara, born May 13, 1996. This temporary order shall have no effect on the legal issue of whether Christine Wilson and Thomas Wilson have standing to seek legal and physical custody of Debra. 2. Christine Wilson and Thomas Wilson, with Debra, the maternal grandparents, William Piccirilli and Anne Piccirilli; the natural father, Edward F. McNamara; and the stepfather, Robert Eyer, shall participate in a custody evaluation conducted by Arnold Shienvold, Ph.D. 3. A hearing on the outstanding challenges to the standing of various parties to seek legal and physical custody of Debra shall be conducted in Courtroom No. 2, Cumberland County Courthouse, Carlisle, Pennsylvania, at 8:45 a.m., Friday, February 28, 2003. 4. It is anticipated, that in conjunction with the custody evaluation, arrangements will be made between the parties for them to have contact with Debra pending further order of court. Should any party challenge those arrangements on a petition for special relief, an expedited hearing will be conducted. Darren J. Holst, Esquire Max J. Smith, Esquire Nathan C. Wolf, Esquire Samuel L. Andes, Equire prs BYEd~gar B. Bayley, J% CHRISTINE PICC1RILLI WILSON, THOMAS WILSON, WILLIAM PICCIRILLI AND ANNE PICCIRILLI Plaintiff VS. EDWARD F. MCNAMARA AND ROBERT EYER, Defendant PRIOR JUDGE: Edgar B. Bayley IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-5942 CIVIL TERM CIVIL ACTION - LAW IN CUSTODY CUSTODY CONCILIATION SUMMARY REPORT IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE 1915.3-8, the undersigned Custody Conciliator submits the following report: 1. The pertinent information conceming the Child who is the subject of this litigation is as follows: NAME Debra Elaine McNamara DATE OF BIRTH May 13, 1996 CURRENTLY IN CUSTODY OF Christine and Thomas Wilson 2. A Conciliation Conference was held on January 16, 2003, with the following individuals in attendance: the plaintiffs, Christine and Thomas Wilson (Maternal Aunt and Uncle), and William and Anne Piccirilli ( Maternal Grandparents), with their counsel, Darren J. Holst, Esquire, the defendant biological Father, Edward McNamara, with his counsel, Max J. Smith Jr, Esquire, and defendant Stepfather, Robert Eyer, with his counsel, Nathan Wolf, Esquire. 3. This matter involves a complex factual situation. There are no existing custody Orders, other than the Order signed by this Court on December 31, 2002 denying the Stepfather's Petition for Special Relief. The Mother, Barbara Eyer died on November 26, 2002, having been married to Robert Eyer, (Stepfather) since July 2002. The biological Father, Edward McNamara, has had no contact with the Child since 2000. The Maternal grandparents provided care for the Child for extended periods during the Mother's terminal illness. After the Mother's death, the Child's maternal Aunt and her husband, Christine and Thomas Wilson, took the Child to Reston,Virginia where the Child has resided since December 3, 2002. Upon learning that the Child was in Virginia, the Stepfather filed a Petition for Special Relief seeking return of the Child to Pennsylvania, which petition was denied by the Court in light of the upcoming Conciliation Conference scheduled for January 16, 2003. 4. In this petition, the Maternal Grandparents, support the request of the maternal aunt and her husband for primary custody of the Child. Plaintiffs' counsel intends to amend the complaint to clarify that the Maternal Grandparents are seeking primary custody as an alternative to custody with the maternal aunt and her husband. 5. It is expected that petitions will be filed by Plaintiffs' counsel challenging the standing of the Stepfather, by Father's counsel challenging the standing of the maternal aunt and her husband and the Stepfather, and by Stepfather's counsel challenging the standing of the maternal aunt and her husband. Pending resolution of these standing issues, counsel agreed to initiate a custody evaluation to expedite recommendations on interim contact between the Child and the Father and between the Child and the Stepfather. Presumably, contact with the maternal aunt and her husband will be agreed upon between the plaintiffs. 6. The conciliator submits an Order in the form as attached based upon the agreement of the parties as to a custody evaluation and interim recommendations and upon the direction of the Court with regard to interim primary custody. Date Dawn S. Sunday, Esquire Custody Conciliator CHRISTINE PICCIRILLI WILSON, THOMAS WILSON, WILLIAM PICCIRILLI and ANNE PICCIRILLI, Plaintiffs Vo EDWARD F. MCNAMARA and ROBERT G. EYER, Defendants IN THE COURT OF COM~ON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-5942 CIVIL TERM ORDER OF COURT AND NOW, this 28th day of February, 2003, pursuant to an agreement of the parties, IT IS ORDERED: 1. All parties withdraw any challenges to the standing of the other parties, and waive any objections to the standing of other parties in this action. 2. Legal custody of Debra McNamara, born May 13, 1996, is awarded to her maternal aunt and her husband, Christine Wilson and Thomas Wilson, but they shall share information regarding critical matters and changes in Debra's life, and where possible share that information in advance, with the father, Edward F. McNamara, the stepfather, Robert G. Eyer, and the maternal grandparents, William and Anne Piccirilli. 3. Christine and Thomas Wilson shall have primary physical custody of Debra. They shall arrange for Edward F. McNamara and Robert G. Eyer to have periods of visitation with Debra for several hours at a time at least once each month. It is the expectation that the Wilsons or the Piccirillis will have Debra in Cumberland County for the better part of one weekend a month, and that the father and stepfather will have the opportunity to be with her on those occasions. Such contact with the stepfather and father shall be supervised by the Wilsons. The first three visitational contacts with Debra by the stepfather shall take place on a Sunday morning, with the Wilsons, while attending services at the Church of Nazarene. 4. Future arrangements for the father and the stepfather to see Debra, either here or elsewhere, shall be arranged by the agreement of the Wilsons, the father and the stepfather. Arnold Shienvold, Ph.D., shall be available to consult with, to recommend, and to mediate any issues relating to contact between Debra and her father and stepfather. If there is no agreement with the benefit of Dr. Shienvold's advice, the respective parties may petition this Court for relief. 5. All the parties shall have reasonable contact by telephone with Debra while she is with any other party. 6. In the event that father or stepfather are going to be in the area of Reston, Virginia, they may see Debra upon prior satisfactory arrangements with the Wilsons. Until the parties agree otherwise or until further order of this Court, those contacts will be under the supervision of the Wilsons. 7. In the event that the parties are able to reach agreement to modify this order with regard to the terms of supervision, or the terms of the schedule for being with Debra, they may do so without actively involving Dr. Shienvold. 8. In the event that Dr. Shienvold's services are employed in the future, the cost shall be shared equally by the Wilsons, the father and the stepfather, each paying one-third. Edgar B. Bayley,%_J-~ Darren J. Holst, Esquire For Christine and Thomas Wilson Samuel L. Andes, Esquire For William and Anne Piccirilli Max J. Smith, Esquire For Edward McNamara Nathan C. Wolf, Esquire For Robert Eyer Sheriff prs