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sln,:e the lust eustmly urdcr. Firsl, Ihe 1'lulntll1' Mother movcd huck Inlothe murltul reNldcnee.
ThiN iN purHuunlto lhclr Properly Scttlcmenl Agrecmcnt. Sccond, Hhe HUYS Ihutthe Futhcr
ehungcd Jobs In June und ugrccd Illr u period of upproxhllulcly tWOllllJlllhH or so lhutthc children
should bc wilh her overnight evcry cvcnlng. Inolhcr words, during lhc limcs thUI Futhcr hud
CUHlody of lhc childrcn, hc would Mum the childrcn to Muther. She wunted to confirmthut
urrungcmcnt. The Mothcr's work schedulc Is from 5:30 u.m. until 1:30 p.m.. Monduy lhrough
Frldny.
6. The Delimdunt's position on custody is us Illllows: Futher bellevcs that the pl1rtleH
should malmuin a shured arrallgement us wus ugl'eed upon und followed Ihr HOI11C time in this
cusc. He acknowlcdges that there wus u period of approximutely two months whcnthe children
were being returned to the Mother. lIe stutes thut his reusonlor this was thut he did not have an
approprillle duy cure provider thr the children inthc mornings prior to him going to work. He
hus obtuined the approprillle dt'.y care providcr, his niece who is 22 years old, who will ensure
that the children get un the bUH Ihr Hchoo!. The Father's work schedule is froln 7:30 a.m. until
4:30 p.l11.. Monday through Friday.
7. Need Ihr separute counsclto represent child(ren): Neither party requested.
8. Need Ihr independent psychological evaluation or counseling: None requested and the
Conciliator does not believe any is neeessury.
9. A hearing in this l11aller will take one-half day.
I n. Other molters ur comments: The parties were unuble lu rcach an overall ogreemepl.
on lhis case. Therc was u change in circumstances li'om the previolls Order because of the
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I IN 'I'm: ('ULlln ()Ii ('01\11\101'\ 1'1 ,/-:AS (}/o'
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I CUl\IlIl-:lt/.ANI) ('miNTY, l'I':!'iNS\'I.VANI,\
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ANI) NOW, Ihls....:'; m duy III' .::"t:~\UU\..i:(, 1'/'/7, UpllU ellusiderntillnof the uttuehed
petlllon. It is h~l'ehy dliwtcd thul Ihe purtles uud Iheil' I'espeelhe e<llJl1sel uppeur h,:lllre
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Jll\i.W._.' !'squire, !he e'lIldliuillr, ul "':,c..'). :'.\ ,,:'...J.c,L L1Uf-L\.LlL.., lln the
..s:"L:J. day of .-'.,).\,....\.'.::.L,~C' 19'/7, UI 'L \..)J 1\, M. lill' u Pl'e.llcurlng ('ustlllly ('<lIIlcrenee, At
sueh conlcrence, un el'i'llrt will h~ Illude 1'1 l'es"lvc Ihe iSMles iu dlspule; llr If this cuunot he
aeeolllpllshed, I,) deliue uud 1H1IT,)W Ihe issues to he heurd hy the ("lIU1 und III eu!..!' inlo u lelllpoml")'
order, All childr~n uge lhe or ,)Idel' muy UlNll he presenl ul Ihe ellulCl'eUee, Fullure 10 IIppeur ut this
cOlllcrence Illuy provide grOlJuds IiII' ~nlI'Y ,)fu telllp,}rury ,)1' penuuueu! order.
Ily Ih~ Court,
IlY:_UU.;.::l~IO.L(~{.J~_j)LlJ..vg.Q..4t) .
Cus!<ldy Clludliul'll' I He. ~ '
YOU SHOULD TAl\Jo: TillS l'Al'lm TO YOUlt LA WYElt AT ONCE, IF YOU DO NOT
llAV.: A I.AWnnOR CANNOT A"H)JtJ) ON 10:, GO TO ()It Tl':I.EI'HONE TilE OFFICE SET
FORT" In:I,OW TO ....Nll OUT wm:Ju: VOl' CAN GET I.EGAL HELP,
Cuurt Admillislml,'1'
Cumberlaud CllUllly t '<)urtbllUse
I Cuurthouse S'luare, 41b Floor
Curl isle, Peullsylvania 1701.1
(7 J7) 240.62iJiJ
MH:IUCANS WITIIIlISAJIII.ITlES
ACT OF 1990
The Court ofCommolll'leas ufCumherllllld Coumy is required hy lall' 10 comply witb the Anlerieans with
Disabilities Act of 1990, For iutimnulioll aholllll.:.:.:>>ihle lileiliues IIlld reasollable aceummodations available to
disabled Individuals having huslness belilre Ihe ':,)UI1, plc,,'e ':<1111"':1 our onke, All arrangemenl' must be made at
lenst 72 hours prior 10 auy bearillg or busille", heli"e Ihe clIurt. Y<llI Illust allend Ihe scbeduled conference or
hearing, "
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tiN TilE COllin OF ('01\1 /\JON I'U:,\S ()jo'
t ('LI 1\\11 1m I.A N I) ('OllNn', I'ENNS\'I.V ANIA
t
t NO. '17-4772
IU:lmCCA s, "'AIINESTOC~.
1'1 ,AI 1'1'1'1 I"'"
I':AIU. s. FAHNESTOCK. ,II'..
In:n:NnANT
t CIVIl. ACTION - LAW
t ('LISTon\'
PIU;'IIEARIN(j I\IE!UOI~~I)lJ1\I
AND NOW. climes thc pluintlll', Reheecu R, Fuhnestoek, hy und through hcr ullllmcYH,
Iiwin McKnight & Hughes, Esquil'cs, lll1d lilcs this l)rc-Hearlng MClllllrundulll lIluking thc
tllllowlng stutclllcnl:
I, PLAINTIFF'S POSITION
Thc p1ll1ics 10 this uction wcrc murried on April II, 19117, und separilted on Junc 2,1997,
The purtics arc thc natural parcnls of lwo (2) children, numely Tabutha A, Fuhne~toek, born April
21. 1911S, und Duslin W, Fahnestock, horn August 19. I 99(), At thc timc of sepuration, thc
plaintifl'movcd out of the l11urilal residencc, and thc partics shurcd physical custody llf the minor
children, Upon settling the equitahle distribution portion of the divorc.::. thc pluinlill' moved buck
into the l11aritul residcnce, and th.:: dcfcndant 1110ved into a sepurute rcsidcncc, Thc parties
continued to sharc physical custody ofthc minor childrcn. hmvcvcr, the plaintiff felt strongly that
thc minllr children should slcep at the pluintifl's house during the wcekdays, Pluintill' hos
received l11ueh tccdhack frlllll the ehildrcn cxprcssing lhcir dcsirc to live with thc plaintitf and
not slecp ut the dcfcndant's homc lln lhc weckdays, Additionully, thc plaintiff has severol
conecrns regarding thc usc of violence und thrcuts hy the defcndant against the cbildren,
Thercl'lre. the pluintiff belicvcs that it is within thc bcst interests of thc minor ehildrcll that they
resiuc primarily with the plaintiff.
other things, as to the children's slable home cnvirunmenl when In Defendant's
custody, their obscrvatlonH oflhe children, the qlJtlllty ofhomc life ofthc children at
Defendant's reHldence, und incidents of Pltlinlitl's hchavior towurds Ihe children
3, Kim Wetl!')', Defendant's niecc, willtcslil'y, anlllllg olhcr things, rcgarding how Hhe is
available to transport the children to their IJsual bus Sll'P during wcekday Illornlngs
when Defendant had overnight custody lhc nigbl bcllJi'c She will also dcscribc how
Dcfcndtlnt providcs li.lr and takcs care ol'lhe childrcn when they are in cUHtody,
4, Rich and Kay Murton: fricnds ofthc Dcfcndant, willtcstily, among other things,
regarding issues thc childrcn have which thcy have confided to Mr. & Mrs. Murtotf.
5, Laura Myers, Ii'iend llfthe Delcndant, willtcstity, al110ng olher lhings, regarding how
the children have cxpresscd reluctance to go to Plaintitl's hOlllc following Defendant's
custodial periods
6, Ralph Fahnestock, brother of Defendant, will testify, among other things, about
Defendant's struggles as a single parcnt
7. Gloria Burgett, friend and former co-worker of Defendant, willtestil)r, among other
things, about Defcndant's dcmcanor and attitude lowards his children,
8. Phyllis Barrick, sisler of Defcndant, will testily, among other things, as 10 how lhe
children reactlowards PlaintifTand somc bchaviors thc PlaintifThas exhibited towards
the children.
EXi>.ERJ WIINESSES
At the time of the hearing, allorney for Defendant does not intend to call any
expert witnesses, However, she would prefer to reserve her rlghlto presenllhe le.tlmony
of an expert witness al a IRler date In the event a custody evaluation Is scheduled and/or
the parties or their children rcccive counseling.
S.IJMMAgY_.QJ'-J~Q,'jIIlQ1i
Defendant essentially belicves tlullthc currcnt order Is appropriate, Is in
furtherance of the best intcrests of the children, and should bc made permanent. The
current order allows thc childrcn to spend thc most possiblc timc with each parent in light
of their work schedulcs Plaintill'und Defendant livc in close proximity and the children
do not seem to have a problem spending cqual timc betwccn the two rcsidences. In
addition, Defendant bclievcs that Plaintifr and hcr boyfricnd tend 10 neglectlhe children
when they are in Plaintiffs custody and that it would be detrimental for them to spend
more nights there than currently scheduled
WHEREFORE, the Defendant respectfully rcquests this Honorable Court to make permanent
the current custody order.
"
DATED:
{O (co If I
Respeclfully SUbmit~ BY:.
;1 ft:~
Jean B Wigbels, Esquire
AT ORNEY FOR DEFENDANT
1400 N. Second Street
Harrisburg, P A 17102
(717) 221-0900
Supreme Cl. ID No. 68735
REBECCA S, FAHNESTOCK,
PLAINTIFF
V,
EARL S, FAHNESTOCK, JR,
DEFENDANT
IN THE COURT OF COMMON PLEAS OF
CIJMBERLAND COUNTY, PENNSYLVANIA
97-4772 CIVIL TERM
IN RE: CUSTODY
ORDER OF COURT
AND NOW, this J, ~day of November, 199B, IT IS ORDERED:
(1) All prior custody orders are vacated and replaced with this order,
(2) Rebecca S, Fahnestock and Earl S, Fahnestock, Jr, shall have shared legal
custody of Tabatha Fahnestock, born April 21, 1988, and Dustin Fahnestock, born
August 19, 1990,
(3) The parents shall have shared physical custody of Tabatha and Dustin on
alternating weeks with a changeover each week at 5:00 p,m, Sunday,
(4) During the summer school vacation period, each parent shall select a two-
week continuous period to be with both children, Each parent shall notify the other
parent of these weeks before the end of each school year,
(5) The holidays of Thanksgiving, Easter, Memorial Day, Fourth of July and
Labor Day shall be alternated, The mother shall have Thanksgiving In 1998,
(6) The Christmas holiday shall be broken Into two segments, Part A shall be
from Christmas Eve at 12:00 noon until Christmas Day at 12:00 noon, Part B shall be
from Christmas Day at 12:00 noon until December 26th at 12:00 noon, The mother
shall have Part A In 1998, and in all even-numbered years thereafter, and Part B In
1999. and In all odd-numbered years thereafter, The father shall have Part A In 1999.
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REBECCA S. FAHNESTOCK,
PLAINTIFF
V,
EARL S, FAHNESTOCK, JR,
DEFENDANT
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
97-4772 CIVIL TERM
IN RE: CUSTODY
QPINION AND ORDER OF COURl:
BAYLEY, J" November 6, 199B:--
Rebecca S, Fahnestock and EarlS, Fahnestock, Jr" are the parents of Tabatha
Fahnestook, age 10, born April 21,1988, and Dustin Fahnestock, age 8. born August
19,1990, The parents were married on April 11, 1987, On June 2,1997, the mother,
maintaining she was abused by the father, moved from the marital home In Carlisle
Into the home of her boyfriend, Kim Taylor, whom she had been seeing since
February, 1997, The mother testified that she did not take the children with her
because she did not want them to have to change schools or move Into a strange
environment with a person they did not know until she was settled,
The mother saw Tabatha and Dustin on a regular basis, The parents entered
Into an agreement that resulted In the mother moving back into the marital home on
June 15,1997,' Kim Taylor moved In with her, Taylor, who Is twice divorced, has
four children ages 19, 17, 12 and 10, His two youngest children are girls who are
with him every other weekend, The father moved to a home In Carlisle a little over a
mile from the mother's home, Both homes are In the Carlisle School District.
Tabatha and Dustin go to the Crestview Elementary School where she Is In the fifth
1, The maternal grandparents live next door to the marital home.
97-4772 CIVIL TERM
grade and he is In the third grade,
011 October 30, 1997, the parents entered Into a consent custody order with
shared legal custody and shared physical custody on the fOllowing schedule:
A, During the weeks when Father 15 working either the 3:00 p,m,
to 9:00 p,m, shllt or the 9:00 a,m, to 9:00 p,m, shllt, Mother shall have
the children alter school or alter work until 9:00 p,m, at which time she
will return the children to the Father's residence,
B, During the weeks when Father 15 working until 3:00 p,m, or 15
off Irom work, Fathor shall have tile children In his custodial care,
C, On the weekends that Father 15 olf lrom work, he shall have
the children In his custodial care,
D. On the weol~ends that Father Is working, Mother shall have the
children In her custodial care, This period of custodial time with Mother
shall commence and end In accordance with the Father's work
schedule, and 65 agreed upon by the parties,
A schedule was set lor holidays and each parent shall have two uninterrupted weeks
of vacation with the children during the summer,
On September 4, 1997, the mother liled a petition seeking primary physical
custody of Tabatha and DJstln, The case went to conciliation, While unable to
resolve the custody Issue, the parents entered Into a stipulation to modify the existing
custody order without prejudice to their pursuing their claims at a hearing that was
conducted on November 4, 1998, The modification entered on October 1, 1998,
provides:
A, The parties shall [sic] physical cllstody of their minor children
on a week-on, week-off basis, At the end of Father's week, he shall
return the children to Mother's residence by Sunday at 8:00 p,m, Father
then shall commence the beginning of his week by picking up the
children alter school on Monday, When the children are In school, the
children shall get off the bus at Mother's residence and shall be with her
after school until 5:15 p,m, at which time Father shall pick the children
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97.4772 CIVIL TERM
up and resume his custodial periods with the children, Father also
agrees that during these weeks that he has custody of the children, he
shall ensure that the children gel picked up from school at the bus stop
used by Mother,
The mother works at Wels Markets weekdays from 5:00 a,m, untIl 1 :30 p,m,
The father obtained a new job In August, 1998, as warehouse manager for Lee Com
Associates, He leaves for work weekdays at 6:45 a,m. and gets home at
approximately 5: 15 p,m. The father's niece, Kimberly Weary, age 21, who lives In
Carlisle, goes to the father's home during tile alternate weeks that he now has the
children, Kimberly gels the children ready for school and lakes them to the mother's
home where they take a school hus at a nearby stop, Tile children return to the
mother's home at approximately 3:40 p,m. and stay there until the father picks them
up when he comes home from work, During the alternate weeks that the mother has
the children, Kim Taylor gets them ready for school In the morning,
The mother testified that the children tell her that they want to live with her,
The father testified that the children tell him that they like the current shared custody
arrangement. The mother believes IIlat the father Is abusive to tile children, The
father acknowledged that he has a temper. He denied any physical abuse of the
children, He believes that he has made major strides in controlling his temper, There
is no credible evidence that the children are not doing adequatf;ly In school. We
talked to the children Individually In chambers, They are courteous, age appropriate
kids, Neither of them expressed any concerns about either parent. It Is obvious that
they love both parents and seek love from both, They both have more friends In the
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97-4772 CIVIL TERM
mother's neighborhood than In the new neighborhood of the father, Neither had a
strong opinion as to the current custody arrangement. We believe that the children
tell each parent what they bellove that parent wants to hear regarding their custody,
The mother seeks primary physical custody and the father seeks shared
physical custody on an alternate week basis, The legal principles applicable to a
custody case are well established, The testis what Is In the best interest and welfare
of the child, McMillen v, McMillen, 529 Pa. 196 (1992), Positive wfilght should be
given to the primary care provider, Gonzalez v. Gonzalez, 337 Pa Super, 1 (1964),
In In re Wesley J,K" 299 Pa, SupE1r. 504 (1962), the Superior Court of Pennsylvania
stated:
The philosophic premise of shared custody Is the awarding to both
parents of responsibility for decisions and care of the child, In the past
non-custodial, conscientious parents have been frustrated by the
second-class status to which the law has assigned them, It was difficult
to develop healthy relationships to a child w~lere their role may have
been limited to a weekend parent whose counsel was not sought In
decisions affecting tile child, Shared custody allows both parents [slG]
Input Into major decisions In the child's life, (Footnote omitted,)
In Wesley, the Court suggested guidelines for determining when shared custody 15
appropriate, Both parent3 must be fit and capable of making mature child-rearing
decisions, and must be willing to provide care and love for their child, Both must
express a desire for continued active Involvement In the child's life, The child must
recognize both parents as sources of love and security, A minimal degree of
cooperation between the parents Is necessary, although this feature does not
translate into a requirement that the parents have an amicable relationship,
.4-