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HomeMy WebLinkAbout97-06578 ~ - t V) c: W ~ a. ~ ~ J \ ~ ! " ", "" r Co ~ " -J - ';:) ~ I ~ I ~ I ~I . r- cr Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW AMY L. STOVER, v. MARK A. BIRGENSMITH, Defendant : No. 97 -6578 CIVIL TERM : CUSTODY CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Memorandum was served on the following persons at the following addresses by U.S. Mall or personal service. Peter J. Russo, Esquire 61 West Louther Street Carlisle, PA 17013 Attorney for Defendant Carol J. Lindsay, Esquire 11 East High Street Carlisl9, PA 17013 Attorney for Maternal Grandmother Date: October 4, 1999 r L (jsay Dare Baird, Esquire 37 South Hanover Street Carlisle, PA 17013 (717) 243-5732 Attorney for Plaintiff AMY L. STOVER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW v. MARK A. BIRGENSMITH, Defendant No. 97 -6578 CIVIL TERM CUSTODY PRETRIAL MEMORANDUM I, STATEMENT OF FACTS Shaunae J. Blrgensmith, born 5/19/90, and Khloe M. Birgensmith, born 2/19/92 are the children named in Ihis custody dispute. Amy L. Stover, natural molher, and Mark A. Blrgensmilh, natural father, were married and ultimately divorced. Until February of 1993, both children lived with their parents. After February of 1993, the children lived with Mark Blrgensmith. He was then remarried to Kim Birgensmith. Ms. Birgensmilh and her two children began residing with Mr. Blrgensmilh and his daughters in February of 1996. Amy Stover was remarried 10 Scott R. Stover and moved 10 Alaska wllh him due to his military career. Because of the considerable dislance from Pennsylvania, she was unable to have extensive time wilh her children. Whenever possible, Ms. Slover would travel to Pennsylvania and be with the children with her mOlher, Gail Stull (the children's maternal grandmother). Ms. Stover and her husband are now living in Illinois at Scott Air Force Base. A cuslody order from December 29,1997, gave Ms. Stull certain custodial rights. She was granted extensive periods of lemporary custody. This order was between Mr. Birgensmilh and Ms. Stull; Ms. Slover was nol a named party. In an order dated February 29, 1999, Ms. Stover was given shared legal custody of the children along with Mr. Birgensmith. Mr. Birgensmith was given physical custody except for the times noled in the prior agreement with Ms. Stull and Ihe times noled for the mother which were as follows: July 1, 1999 10 July 31, 1999; one weekend per monlh together with Ms. Stull; and regular phone contact with Ihe children (minimum one time per week, scheduled). In an order dated July 5, 1999, Ms. Stull was given cuslody of Ihe children from July 28, 1999 until August 4, 1999 following Ms. Stover's summer custody, with Ms. Slull returning the children 10 Mr. Birgensmith on August 4, 1999. Mr. Birgensmith was then given uninterupted custody until the end of August. Ms. Slull was not granted any periods of temporary custody during this time. Ms, Stover is requesting an extension of her summer custody of the children. She would like Ihem to be In her custody from two weeks following Ihe end of their school year in June until two weeks bt!fore school begins In August each year. Ms. Stover Is willing to share custody periods with Ms. Stull. II, PRINCIPLE ISSUE Maya non-resident mother extend her period of partial custody during her children's summer vacation period against the wishes of the father who shares physical custody? Suggested Answer: Yes "'" , III, LEGAL AUTHORITY 23 Pa.C.S. 95301 Declaration of polley The General Assembly declares that It Is the public policy of this Commonwealth, when in the best Interest of the child, to assure a reasonable and continuing contact of the child wilh both parents after a separation or dissolution of the marriage and the showing of the rights and responslbilllies of child rearing by both parents and continuing conlact of the child or children with grandparents when a parent Is deceased, divorced or separated. F I I i I i I ! ; Pamela J.K. v. Roaer D.J.. 419 A.2d 1301,277 Pa.Super. 579 (1980), examined a non-resident mother's right to primary physical custody and partial physical custody of her daughter. The mother reluctantly gave up custody of her young daughter upon entering the United States Navy. She would not have been allowed to keep her during the first six to eight months of enlislment. The mother asked the father to take temporary cuslody of the child for that time period, but he would only agree If he could have "permanent" custody. Having no other option, the mother agreed. The father remarried and, along with his daughter, began residing with his new wife and her child from a previous marriage. The mother also remarried to a rnan In the Army, which required frequent moves and often a great distance from her daughter. This caused the mother to have limited contact with Ihe girl. Appellant (father) and Appellee (mother) were bolh delermined by the Superior Court to be good parents. The dispute was not over the fitness of either parent, rather,"that appellant [was] not serving [the child's] best interests because he ha[d] unreasonably interfered with [hm] right to visit and spend time with her [mother]." Id. at 1304. There were occasions when the father and his wife denied the mother visits or opposed them with legal disputes, requiring court intervention 10 protect appellee's visitation rights. In this case. the mother eventually filed a petition for primary physical custody of her daughter due 10 the Interferences. She was granted custody, but primary custody was relurned to the father on this appeal. The appellate court decided that the interferences were not severe or frequent enough to justify separation of the father and daughter. However, In order to prevent further Inlerferences and to guarantee that the mother would get to see her daughter more often and, "develop a strong and happy relationship." Id. at 1311, the Superior Court entered a special order for vlsilatlon. It was decided that the child's, "best interests [would) be served by visitation agreements that [would) give [her) the greatest possible amount of time wilh the appellee, consistent wllh the preservation of her present relationship wllh appellanl and the other members of his family." Id. at 1311. The schedule that Ihe Superior Court felt was reasonable is as follows: summer cuslody beginning the 11 th day after school ends In June until the 11th day before school begins In August, as long as mother Is residing oulside of Ihe United States due to her husband's career, and visitation scheduled wilh at least two weeks notice when she returns to the Unlled Stale as long as it doesn't Interfere wllh school. The Superior Court's decision In this matter shows that a good, capable mother shall be permitted to have visils and summer custody of her child for more than just one month while she Is not a resident of Ihe slate. This was determined to be a reasonable amount of time to allow the mother and child a chance 10 develop a stronger relationship. In Lee v. Fontlne, 594 A.2d 724,406 Pa.Super. 487 (1991), where the mother i1ved In Washington state and the father in Pennsylvania, Ihe Superior court held that it was reasonable to grant the father, "partial physical custody of the minor children for the purpose of visitation each summer commencing one week following the close of school and ending one week prior to the reopening of schooL." Id. at 725. i ~ ~ Where, "both parents were fit and loving and constituted sources of great comfort and guidance to their young child," Ihe court ordered that, "a joint custody order, whereby the mother was awarded custody of the child Ihroughout the school year and the fathter recleved custody during the summer months." Smilh v. SrnItb, 486 A.2d 453, 454-55, 337 Pa.Super. 9 (1984). The father was also granted liberal visitation in addilion to the summer vacation period. "To insure frequent and continuing conlact with both parents, the lrial judge established a program of shared physical custody with liberal visilatlon for non-custodial parent." EllinQson v. MaQsamen, 486 A.2d 456, 459,337 Pa.Super. 579 (1980). In this case, the mother relained physical custody during the school year with custody t.ransferrlng to the father during the summer months. In Fisher v. Fisher. 535 A.2d 1163,370 Pa.Super. 87 (1988), the Superior Court held that, "[I) he mother, who is also a loving and fit parent, should be allowed partial physical cuslody of [the child) for the maximum amount of non-school days feasible." Id. at 1166. IV, ANTICIPATED WITNESSES 1. Amy L. Stover , mother 2. Scott R. Stover . rnottler's husband 3. Gail Slull . malernal grandmother Dale: //...13.9? Respectfully Submitted, ;11 IV~ L;' dsay Dare Baird, Esquire Attorney 10 # 72083 37 S. Hanover SI. Carlisle, PA 17013 Attorney for Plaintiff . ~ ~ \0 ~ W z il "'Clf! (.";) 9?S:1 ...-: ~S; N c.J ~b "'0 ;;;0 :x ~~J N ~ .. N ~ r.n AUG 2 7 1999 tP AMY L. STOVER, Plaintiff IN THE COURT Of' COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION. LAW NO. 97.6578 CIVIL ~ IN CUSTODY v MARK A. BIRGENSMITH, Defendant COURT ORDER AND NOW. this ~ day of August, 1999, upon consideration of the attached Custody Conciliation Report, it is ordered and directed as follows: I. A hearing is scheduled in Courtroom No. I of the Cumberland County Courthouse on the .;q;lf day of .Jcr ~ ,1999, at WA.M. at which time testimony will be taken in the above case. At this hearing. the Mother. Amy L. Stov::r, shall be the moving party and shall proceed initially with testimony. Counsel for the parties shall file with the court and opposing counsel a memorandum setting forth the history of custody in this case, the issues currently before this court, a list of witnesses who will testify on behalf of that party and a summary of the anticipated testimony of each witness. This memorandum shall be filed at least 10 days prior to the mentioned hearing date. 2. Pending further order of this court, the existing order of February 29, 1999 and December 19, 1997. (as it relates to the custodial rights of the maternal Grandmother Gayle M. Stull), shall remain in effect. In the event a final order is not issued prior to the upcoming holidays, Father shall enjoy custody of the children on Thanksgiving Day. For the Christmas holiday, f'ather shall have the minor children from when they are released from school until noon on December 26lh. Mother shall have the children from noon on December 26lh until noon on the day before the children return to school. BY THE COURT, cc: Lindsay D. Baird. Esq. Peter J, Russo, Esq. Carol J. Lindsay, Esq. J, c .1\4.....i~.'- ~ "'I \., . """ ,..,; ~. J" " .'.'." .., .., . " )-tl''''~'''. .'.""'"\ ,..'.; ..' l.. ,1,_.... ~ ~ff ~ . 1 I '. "t. ~ . 0'1::: . - ~-,) ..:J i:~'.I~. .".) ", ,. AMY L. STOVER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v CIVIL ACTION. LAW NO. 97-6578 CIVIL IN CUSTODY MARK A. BIROENSMITH, Defendant Prior Judge: J. Wesley Oler, Jr. CONCILIATION CONFERENCE SUMMARY REPORT IN ACCORDANCE WITH THE CUMBERLAND COUNTY CIVIL RULE OF PROCEDURE 191 5.3-8(b), the undersigned Custody Conciliator submits the following report: I. The pertinent infonnation pertaining to the children who are the subject of this litigation is as follows: ShaWUlt J. Birgensmith, born May 19, 1990; Khloc M. Birgensmith, born February 19, 1992. 2. A Conciliation Conference was held on August 27, 1999, with the following individuals in attendance: The Father, Mark A. Birgensmith, with his counsel, Peter J. Russo, Esquire, the matemal Grandmother, Gayle Stull, Wld her counsel, Carol J. Lindsay, Esquire Wld Attomey Lindsay D. Baird, who appeared on behalf of the Mother, Amy L. Stover. 3. This is a situation where the Mother resides in lI1inois. The Father has primary custody. The matemal Grandmother has various custody rights pursuant to prior agreements of the parties Wld a court order. There are a number of issues the parties cannot agree upon, Wld a hearing is required. Pending a hearing Wld final order, the Conciliator recommends Wl order in the fonn as attached which incorporates the existing status quo in this particular case, J(:rj q'1 DATE / ':t, i<- k:. C ~ ~ C" ~ ,...... .,.:,' r-- ^~ f\ ~ n 0 ~ ("'\ ~ -0 ...J ~ 'l Q I , '1'- " c- , " III " Cj\ ~o 1 r-... ~ 5. '< n "" AMY L. STOVER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION - LAW v, MARK A. BIRGENSMITH, Defendant NO. 97-6578 CIVIL TERM ORDER OF COURT AND NOW, thiS6.d day of September, 1999, upon consideration of the attached letter from Peter J. Russo, Esq., attorney for Defendant, the hearing previously scheduled for October 29, 1999, is rescheduled for Friday, December 3, 1999, at 1:30 p.m" in Courtroom No. I, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, /' " Lindsay D. Baird, Esq, 37 S. Hanover Street Carlisle, P A 17013 Attorney for Plaintiff n '.,.' , , , , ; ,. '. -. 1 , , .\ -, J I '. , . .. " ....., .!I . , I ..f, C , ....,. ~'.' Jill --. :.,t :J ::J _.. :u , (w -- Peter J, Russo, Esq. 61 West Louther Street Carlisle, P A 17013 Attorney f-:>r Defendant Carol J. Lindsay, Esq, II East High Street Carlisle, PAl 7013 Allorney for Maternal Grandmother :rc <~ '7J~ q-3-'f'I~ f'.'"'...., ,...~ '11 'I {~q " -y-- A.l. flJehn $. ~ A nORNEV A'I' LA W 6t WCSI Laulher Slreol Curlisle, PA t70t3-2936 PHONE: (7t7) 249.2121 FAX: (717) 249.4'14 Offices in Hurrtsburg, PA Thursday, September 2,1999 The Honorable J, Wesley Oler, Jr, 1 Courthouse Square Carlisle, PA 17013 RE: STOVER v, BIRGENSMITH Dear Honorable Judge Oler: This letter is in regard to the above-captioned case. We would like to request a continuance for the hearing scheduled for Friday, October 29, 1999 at 9:30 a.m. Please be advised that I will be out of town on that date and would not be Able to attend. We will wait for your decision regarding a continuance and wait for a new date if granted. Should you have any questions or concerns, please feel free to contact me. Yours very truly, (/d.M o. ~h<KAt/'o Peter J. Ru~ ;VI.. PJRlcld rofJ ... 'a '&~~ t'.\wv-'I\alull\rUlludY,fIlOl IIIe ,~..rN..IJ1..UI 'Il"Cmhlt:f 211.1'1'0 '11'; ~ " 19Jtt? Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA GAIL M, STULL, va, NO, 97 - t:.S'1f CIVIL TERM MARK A, BIRGENSMITH, Defendant IN CUSTODY For the Court, AND now, this riS' dayof" \.-,.jf'\{\~r ,1997, upon consideration of the allached Motion, it is herehy direcled that the parties and their respective counsel ap ear hefo e (':n", 1\'\ :;". ~~~ ' E:::c"Q , the conciliator, at \. J \..nl"'rr"l'( '--" .-~ ,0 the '\ \ day of tv'( f'rf\bf' I , 1997, at \ \ o'c c'k~. m. for a pre-hearing custody conference, - At such conference, an effort will be made to resolve the issues in dispute; or if this cannol he accomplished, to define and narrow the issues to be heard hy the court, and to eOler into a temporary order. Failure to appear at the conference may provide grounds for entry of a temporary or permanent order. By: d~O\t~~.,AH\\~' Custody Cunciliator . YOU SHOULD TAKE THIS PAPER TO YOUR lAWYER AT ONCE, IF YOU DO NOT HAVE A lAWYER OR CANNOT AFFORD ONE, GO TO OR TELEI'HONE THE OFFICE SET FORTH BEWW TO FIND OUT WHERE YOU CAN GET LEGAL HELP, Office of lhe Court Administrulor Courthouse, 41h Floor Cmlisle, Pennsylvania 17013 (717) 240-6200 , I [. L [ (- '. ['i _ ;-,', I' . I: ,....~: r~: ~': ' ~- r. ( 9./ "0" ';' . . ... t" ,- . I', .. -,; ,;1,,' .,:,: CU'. . . I '1'., _. I , r-:" '. /1''))'</ '1 {}~. 'lPJ7 'tiel\-- rt,-,4 7f, a~~> /1';))'9) ,~~ .~~ :& ~.r;#' )1- a~'~ ('7!! /Hacki/ i <Zif ~ "4> , I( .\ \ . \ \\ \,\ C:\wp5I\lIUIl\cU'h"")'~'lIm rilc #5~7".'11-1I1 :\'l"clllhcr 111,1'111 AMERICANS WITH DISAHILlTIES ACT OF 1990 The Court of Common Pleas of Cumberland County, Pennsylvania, is required by law to comply with the Americans with Disabilities Act of 19l)(). For information about accessible facilities and reasonable accommodations available III 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. By the Court, Date: J. ;/ c:\wp5I\llulI\cUllwy.rom file '~7'J.fJ7.HI Ncwcmher 211,I')lJ7 GAIL M, STULL, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 97 -t.,S7 f CIVIL TERM Plaintiff VI. MARK A. BIRGENSMITH, Defendant IN CUSTODY 1. The Plaintiff is GAIL M. STULL, residing at 1949 Spring Road, Carlisle, Cumberland County, Pennsylvania. 2. The Defendant is MARK A. BIRGENSMITH, residing at 4016 Bloserville Road, Newville, Cumberland County, Pennsylvnaia. 3. The Plaintiff seeks partial custody of the following children: Shaunae Birgensmith, born May 19, 1990, age 7 years; and Khloe Birgensmith, born February 19, 1992, age 5 years. The children were not born out of wedlock. The children are presently in the custody of MARK A. BIRGENSMITH, who resides at 4016 Bloserville Road, Newville, Cumberland County, Pennsylvania. During the past live years, the children have has resided with the following persons and at the following addresses: Mark A. Birgensmith and Kim R. Moore, at 4016 Bloserville Road, Newville, Pennsylvania, from 1995 to the present; and wilh Mark A. Birgensmith, Marilyn Drive, Carlisle, Pennsylvania, from March 1993 to 1995; and with Mark A. Birgensmith and Amy Birgensmith, from 1992 to March 1993, at Marilyn Drive, Carlisle, Pennsylvania. The mother of the children is Amy Stover, currently residing at 5418 C Gray Plaza, Scott AIr Force Base, Illinois 62225. She is married. -,- .~,_.__.-..- c:\wpSl\atull\L'\Utudy,wm rile 1:\41lJ.'J1.1I1 :r\u\lt:mht:r !'~.(l}lJ1 , ~ The father of the children is Mark A. Blrgensmith, currently residing at 4016 Bloserville Road, Newville, Pennsylvania. He is married. 4. The relationship of the Plaintiff to the children is that of grandmother, The Plaintiff currently resides with the following person: James M. Stull, husband. 5. The relationship of the Defendant to the children Is that of father. The Defendant currently resides with Kim Moore, wife, and her two children. 6, Plaintiff has not participated as a party or witness, or In any other capacity In other litigation concerning the custody of the children in this or another jurisdiction. 7. The Plaintiff has no information of a custody proceeding concerning the children pending in a court of the Commonwealth. 8. The Plaintiff knows of a person not a party to the proceedings who has physical custody of the children or claims to have custody or visitation rights with respect to the children. The name and address of that person is Amy Stover, mother of the children, who resides at 5418 C Gray Plaza, Scott Air Force Base, Illinois 62225. 9. The best interest and permanent welfare of the children will be served by granting Ihe relief requested because: a) Since their birth and continuing until September, 1997, Plaintiff had an extensive and warm relationship with her grandchildren, having provided substantial parts of their child care from birth until approximately September, 1996, including most weekends and several nights a week. b) Plaintiff's daughter, the mother of the children, is stationed with her husband in Illinois, and has been unable to provide Plaintiff 2 C:\wpSl\IIUll\CWotooy,cum hie ~~.r7l:J.IJ1-01 :",,~&:mh&:r 20,1''''7 access to the children through her own partial custody schedule. c) Without partial custody with Plaintiff, the children are deprived of contact with the maternal extended family, including great- grandparents, great-aunts and great-uncles, cousins, aunls and uncles. d) Plaintiff can provide the children the unique experience of a warm and supportive relationst,ip with a grandparent. WHEREFORE, the Plaintiff requests this Court to grant primary physical custody of the children to the Plaintiff. Respectfully submitted, FLOWER. MORGENTHAL FLOWER & LINDSAY, P.C. Attorneys for Plaintiff By: 0"., X1'Ui'HI Carol J, Indsay, Esquire ID # 446 3 11 East High Street Carlisle, PA 17013 (717) 243-5513 J I ~ i 1 , I l : ..:(t c:\wp5I\'tulI\cUlhl\Jy.t'om file 4'J.fl'PJ1.HI :'\o~cmhc:r 2lt.JlJ'J7 ~ I, the undersigned, herehy verify lhat the statements made herein arc true and correct. 1 understand that false statements herein are made suhject to the perlUlties of 18 Pa. C,S. 0 4904, relating to unsworn falsification to authorities. ~ 1Y}. s i-uJL Gail M. Stull Date: 1/ /;0 / Q'1 , ! i 1 r f! I' {'- 7 .,. " n ,l' (*) C ~I 1, ,~ "1 -.~, . ~'~ I! ~TJ f!~q" - ~ ; '.:J ~J (oO'-. -)) -, 'n :dl :r.. ' :J . III :.> :..] 1_.' .. .::! ., "oJ :-~ .s:" =.... GAIL M. STULL, IN THE COURT OF <:nolMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff . . vs. : NO. 97-6578 CIVIL TERM MARK A.BIRGENSMITH, Defendant . . CIVIL ACTION - LAW IN CUsroDY ClUlI!R CF CWRT AND toi, this ~ day of upon consideration of the attached CUstody ordered and directed as follows: 't>t' c l'.... LeJ , 1997, Conciliation Report, it is l. The maternal Grandmother, Gail M. Stull, shall have partial physical custody of Shaunae Birgensmith, born May 19, 1990, and Khloe Birgensmith, born February 19, 1992, who are currently in the custody of the Father, Mark A. Birgensmith, in accordance with the following schedule: A. Beginning on the second Friday of each month from Friday at 5:30 p.m. until Sunday at 5:30 p.m. B. 01 the fourth Friday of each month from 4:30 p.m. until 8:00 p.m. e. From Friday, December 26, 1998, at 12:00 noon until the following Sunday at 12:00 noon. D. Every year on Christmas Day from 12:00 noon until 3:00 p.m. E. Every year on Thanksgiving Day from 10:00 a.m. until 3:00 p.m. and, when the Friday following Thanksgiving falls on the Grandmother I s regular period of custody, the Grandmother shall have custody from the Friday after Thanksgiving at 10:00 a.m. until the end of the regular period of Friday or weekend custody. F. 01 the day before or the day after the Children's birthdays for a reasonable period of tirre as arranged by agreement between the pdrties. G. For one week during each SUJTmer school break which shall be scheduled to begin or end on the Grandmother's regular period of custody, which shall be included in the vacation period of custody. 2. The Father shall have physical custody of the Children at all tirres not otherwise specified for Grandmother in this Order. F;lJf)-o~FCE or- 1) '.r". r~,,--,~,,,,"\!')r/;;'( CJ1Cf.C 30 P;I I: 05 CU' .,,- ,. ,. '.IJ""" \'tIU.:i'I,.J,.~'-i LU j"ll Fa,;t\s,(~v,\!'!\:\ . ~ 3. The Grandmother shall be entitled to have reasonable telephone contact with the Children without monitoring. 4. This order is entered pursuant to an agreement of the parties at a CUstody Conciliation Conference. The parties may modify the pCClvisions of this order by nutual agreement. In the absence of mutual agreement, the terms of this order shall control. . , ~ BY THE OJURT, -I. tI4_g of, L J. , ~ , cc: Carol J. Lindsay, Esquire - Counsel for maternal Grandmother Michael A. Scherer, Esquire c.d>..,..... ;;....,..J.~ 1~/36/'f? ..J . f', I i~ d Plaintiff IN THE COURT OF CCJto1MCtl FLEAS (Xl' CUMBERLAND COUNTY, PENNSYLVANIA GAIL M. STULL, vs. NO. 97-6578 CIVIL TERM MARK A. BIRGENSMITH, Defendant CIVIL ACTION - LAW IN CUSTODY ammY ~ILIATICN stMIARY RBPCRl' IN ACaIlOANCB WITI:I cnmmLAND cx:orrY RIlLE Of' CIVIL PR(lo"'~ 1915.3-8, the undersigned Custody Conciliator submits the following report: 1. The pertinent information concerning the Children who are the subjects of this litigation is as follows: NAMB DATE OF BIRl'H cnmmrLY IN amooy Of' Shaunae Birgensmith Khloe Birgensmith May 19, 1990 February 19, 1992 .'ather Father 2. A Conciliation Conference was held on Decerrber 23, 1997, with the following individuals in attendance: the maternal Grandmother, Gail M. Stull, with her counsel, Carol J. Lindsay, Esquire, and the Father, Mark A. Birgensmith, with his counsel, Michael A. Scherer, Esquire. 3. The parties agreed to entry of an Order in tt,e form as attached. ~~ L4-'~ S. Sunday, Esqu re cu,tody Conciliator ~....&./I d~ /997 Date . ~ .. ., " 1\ i! I: j:- 'I I i ,I II I ... GAIL M. STULL, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 97-6578 CIVIL TERM IN CUSTODY v. MARK A. BIRGENSMITH, Defendant PRAECIPE FOR WITHDRAWAL OF COUNSEL ['.ND APPEARANCE OF COUNSEL TO THE PROTHONOTARY: Please note my withdrawal as counsel for Mark A. Birgensmith, Defendant in the above matter. Dated: IIZ1./~~ ~fHt- Michael A. Scherer, Esquire O'BRIEN, BARIC & SCHERER 17 West South Slreet Carlisle, Pennsylvania 17013 (717) 249-6873 BY: Kindly enter our appearance on behalf of Mark A. Birgensmith, Defendant in the abova matter. Dated: ~~-, Peter J. Russo, Esquire 61 West Louther Street Carlisle, Pennsylvania 17013 (717) 249-2721 BY: AMY L. STOVER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v, CIVIL ACTION - LAW MARK A. BIRGENSMITH, Defendant 97-6578 CIVIL TERM ORDER OF COURT AND NOW, this 3rd day of December, 1999, upon consideration of the matter of custody with respect to the children of Amy L, Stover and Mark A, Birgensmith and granddaughters of Gail M, Stull, and an agreement having been reached in open court between the parties and counsel for the mother in the person of Lindsay Dare Baird, Esquire, and counsel for the father in the person of Peter Russo, Esquire (the grandmother's counsel, Carol J. Lindsay, Esquire, having been unavailable at this time), the terms of which agreement were outlined generally on the record and which agreement will be formalized into a proposed order for the Court to sign by counsel, the record is declared closed at this time, and the matter is taken under advisement, The Court has indicated that it will sign the order submitted to it by counsel at such time as it is presented. Pursuant to an agreement of counsel, a copy of the Order of Court dated February 29, 1999, signed by the Honorable Kevin A. Hess, which, for some reason, does not appear among the docket entries and does not appear in its original form in the file, will be placed in the file, and the prothonotary is directed to docket the same, By the Court, Lindsay Dare Baird, Esquire For the Plaintiff Peter J. Russo, Esquire For the Defendant Carol J. Lindsay, Esquire For Gail Stull wcy .. ^MY L. STOVEI{. Plaintiff FEn 2 : i:'r,'Jt/J IN THE COURT OF COMMON PLEAS OF' CUMBERLAND COUNTY, PENNSYI. VANIA CIVil ACTION. lA W NO. 97 - 6518 CIVil IN CUSTODY v MARK A. IlIROENSMITH, Defendant COUR.T OR.DE~ AND NOW, this .J...9.4A day of , 1999, upon considerAtion of the Attached Custody Conciliation Report, it is ordered an directcd as follows: I. This order is incorporated with the Custody Order previously entcred in thc CDSC at Dockcl No. 91.6578 which involved the maternal Grandmother oblaining cllslody rights for the mentioned minor children. Said Order al Docket No. 97-6578 which is dated December 29, 1991 shall remain in effect subject 10 any modifications 8S set fUl1h below. 2. The Father, Mark A. Birgensmith, and Ihe Mother, Amy L. Slover. shall cnjoy shared legal custody of ShalUlae J Birgensmilh, born May 19, 1990 Wld Khloc M. Birgcnsmith, bom February 19,1992. 3. Physical cllstody of the minor children shall be handled with the Fathcr having physical custody except for such times when the MOlher has physical custody set forth below or the maternal Grandmother has physical custody AS sct fonh in the above menlioned Order. Mother's periods of temporary physical custody shall be as follow~: A. During tile summer months, for the month of July to include July I, 1999 through July 31. 1999. Either party may request a modification of this swruner schedule for fulure SW'lllners. D. ". lO " r: t'. ~: t' ,.. , .' ..~ " , , '[I , , .. , l. , , , , (,' ,. () Mother shall also exercise custody with the minor children for thc one weekend per month lhat matemal Grandmother excrciscs custody. In the event Mother is unablc to be in the Carlisle arca during that time and Mothcr advises father at least 7 days in advance, the one weekend pcr month custody timc for Grandmotller may be modified to accommodate Mother's scheduled so that Mother Illld Grandmother shall erUoy custody with the minor childrcn 8tthe same time. Father shall cooperate in this rescheduling subject to any prior significant commitment Ihftt Falher has made in connection wilh lhe minor children. te~d .1~t::o+6.Z+.LIL . AMY L. STOVER, Plaintiff IN THE COURT OF COMMON PI.EAS Of CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION. LA W NO. 97. 6578 CIVIL IN CUSTODY v MARK A BIROENSMITH, Defendant I'II0r Jlldgc: 1. Wesle)' Oler, Jr CONCILIATION CONFERENCE SUMMARY REPORT IN ACCOROANCE WITH THE CUMBERLAND COUNTY CIVIL RULE OF PROCEDUaE 1915.1.8(b), the undersigned Cuslody Conciliator submits the following report: '1 he pertinent infornlalion pertaining to the children who are the subject (If this Ii ligation is as follows: Shaunac J. Birgensmith, born May 19. 1990: Khloe M. Birgensmilh, born February 19, 1992. 2 ^ Conciliation Conference \Vas held un February 24, 1999, with the following individuals ill allcndllJlce: 1 he Molher, Amy t. Slover, with her counsel, Lindsay D. Baird, esquire; and the father, Mark A. Oirgensmith, with his cOWlscl, Peler Russo, Esquire. J. 1 he parries agree to the entry of an order in the fonl! as anached. -.--_.2lJ>{ f'f DAlE aA~,.~ Custody Conciliator ;", _"._~_____h"_" AMY L. STOVER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW MARK A. BIRGENSMITH, Defendant No, 97-6578 CIVIL TERM IN RE: CUSTODY PROCEEDING Proceedings held before the Honorable J, WESLEY OLER, JR., Judge, Cumberland County Courthouse, Carlisle, Pennsylvania, on December 3, 1999, commencing at 2:16 p,m, in Courtroom No.1, APPEARANCES: Lindsay Dare Baird, Esquire For the Plaintiff Peter J. Russo, Esquire For the Defendant i December 3, 1999 2 Courtroom No, 1 3 2:16 p.m. 4 THE COURT: This is the time and place for a 5 custody proceeding in the case of Stover v. Birqensmith at 6 No, 97-6578 CIVIL TERM, We will let the record indicate 7 that the mother's counsel, Lindsay Dare Baird, Esquire, is 8 present in court, as is the father's counsel, Peter Russo, 9 Esquire. Carol J. Lindsay, Esquire, who represents the 10 maternal grandmother, is not present, but I believe the 11 maternal grandmother has appeared and is satisfied to abide 12 by any agreement that the parents arrive at, am I correct? 13 MS. STULL: Yes, 14 THE COURT: Okay, And just for the record, 15 maybe you could say your name? 16 MS. STULL: Gail Stull, 17 THE COURT: Okay. Thank you. Mr. Russo. 18 MR, RUSSO: Your Honor, the parties have 19 agreed, for the purposes of visitation through the months 20 of June, July, and August, Amy Stover would begin her 21 custody on June 19th at 8 a.m.; children will remain in her 22 custody until 6 p.m, on August 6th. During that time 23 period, and throughout all of their custody time, the 24 parties have agreed to allow their children to have liberal 25 visitation-- I'm sorry, liberal phone visitation as well as 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 wrltten correspondence. Mrs. Stover has agreed to provide any medication to the children that Mr, Birgensmith provides, And in terms of any additional provisions, we will provide you with an order that will hopefully encompass all of the prior orders, so you may vacate any prior order and use this as the standing order for Mr. Birgensmith's rights, Ms. Stover's rights, and Ms. Stull's rights, THE COURT: MR. RUSSO: All right. Ms. Baird, have I missed anything? MS. BAIRD: I would only request an amendment to that to state that, Mrs. Stover is agreeable to administer prescribed medications to the children, MR. RUSSO: Acceptable. THE COURT: And did the parties want me, notwithstanding the agrdement, to speak with one of the children? MR, RUSSO: Yes, Your Honor, we'd ask you to speak with Shaunae, the older daughter. THE COURT: Okay, We'll recess and reconvene in chambers, and I'll speak with that child. MS, BAIRD: Thank you, Your Honor. MR, RUSSO: Thank you, Your Honor. T9E COURT: I assume counsel wish to be 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 written correspondence. Mrs. Stover has agreed to provide any medication to the children that Mr. Birgensmith provides. And in terms of any additional provisions, we will provide you with an order that will hopefully encompass all of the prior orders, so you may vacate any priur order and use this as the standing order for Mr. Birgensmith's rights, Ms. Stover's rights, and Ms. Stull's rights. THE COURT: MR. RUSSO: All right. Ms. Baird, have I missed anything? MS. BAIRD: I would only request an amendment to that to state that, Mrs. Stover is agreeable to administer prescribed medications to the children. MR. RUSSO: Acceptable. THE COURT: And did the parties want me, notwithstanding the agreement, to speak with one of the children? MR. RUSSO: Yes, Your Honor, we'd ask you to spea:t wi th Shaunae, the older daughter. THE COURT: Okay. We'll recess and reconvene in chambers, and I'll speak with ~hat child. MS. BAIRD: Thank you, Your Honor. MR. RUSSO: Thank you, Your Honor. THE COURT: I assume counsel wish to be 3 1 present? 2 MS. BAIRD: Yes, Your Honor. 3 MR. RUSSO: Yes. 4 (Whereupon, a recess was taken at 2:19 p.m. 5 , and proceedings reconvened in chambers at 6 2 :21 p.m.) 7 THE COURT: Shaunae, would you raise your 8 right hand, please? 9 Whereupon, 10 SHAUNAE BIRGENSMITH 11 having been duly sworn, testified as follows: 12 THE COURT: All right. Shaunae, my name is 13 We91ey Oler, and I am the judge in this case where both of 14 your parents would like to spend more time with you. And, 15 unfortunately, there's only one of you, so we have to try 16 to resolve that so that everybody is happy. And I think 17 your parents have pretty much resolved it agreeably, but I 18 know that you might have wanted to say some things about 19 where you'd like to spend most of your time. So go ahead. 20 THE WITNESS: When-- I forget what I was 21 going to say. 22 THE COURT: Well, where do you feel you'd 23 like to spend most of your time? 24 THE WITNESS: Well, I feel like it should be 25 even. I forget how many months there are. 4 10 1 THE COURT: Well, you don't have to say 2 anything. Maybe you don't really want to express a 3 preference. And if you don't, that's perfectly okay. 4 THE WITNESS: I think there should be even 5 months. MS. BAIRD: That's a wise young lady. THE COURT: Okay. Well, that's fine. MR. RUSSO: Is there anything you want to tell the judge about your journal? 6 7 8 9 THE WITNESS: I've been keeping some stuff 11 down as I went to my mom's, and as I came back, and when I 12 went to my grandma's. 13 14 15 16 17 18 19 20 21 22 THE COURT: Every day, you keep a record? THE WITNESS: Not every day. Sometimes I do it every other day. THE COURT: I see. MS. BAIRD: Did you have fun when you were at your mom's? THE WITNESS: Yeah. MS. BAIRD: Good. Do you get along with ! l [~ I. ,,-' Tyler? THE WITNESS: (Witness nodded head 23 affirmatively.) Except it feels like I'm the tallest in ~4 the room, because I sleep on the top bunk. 25 MS. BAIRD: Tyler is Amy's husband's son. 5 1 THE COURT: Oh, I see. How old is Tyler? 2 THE WITNESS: Seven. 3 THE COURT: I see. 4 MS. BAIRD: Is he a nice little boy? I 5 haven't had a chance to meet him. 6 THE WITNESS: l<hloe is seven, too. 7 MS. BAIRD: I know. You guys are all 8 getting too big. 9 MR. RUSSO: The girls have the bunk bed, and 10 Tyler has the regular bed. 11 MS. BAIRD: Do you like being up on top like 12 that? 13 THE WITNESS: When I stand up, I can 14 actually stand on my flat feet. 15 MS. BAIRD: And still not hit the ceiling? 16 THE WITNESS: Yeah. 17 MS. BAIRD: My golly. 18 THE WITNESS: The ceiling is a little bit 19 bigger than our ceiling at home. 20 THE COURT: Well, Shaunae, it's really nice 21 to meet you. And you're a really cute little girl. 22 MS. BAIRD: How did you bump your face? 23 THE WITNESS: I was trying to do a hand 24 stand, and instead I brush-burned my face. 25 MS. BAIRD: You sure did. You did a face 6 1 stand. 2 MR. RUSSO: We agreed that you were going to 3 be able to talk to mommy or daddy whether you're here in 4 Pennsylvania or out in Illinois any time you want. Is that 3 okay? 6 THE WITNESS: Yeah. 7 MR. RUSSO: All right. ~ , , 8 MS. BAIRD: And you can write letters to 9 your mommy, and you can write letters to your daddy when 10 you're with your mommy. Doesn't that sound as it should 11 be? 12 THE WITNESS: (Witness nodded head 13 affirmatively.) ... , 14 MS. BAIRD: Yeah. I bet, because I know 15 that-- what do you call Scott, Amy's husband? 16 THE WITNESS: I sometimes call him daddy, 17 when it's okay with him. But sometimes when I don't feel 18 like calling him daddy, I call him Scott. 19 MS. BAIRD: Okay. So if I call him Scott, 20 you know who I'm talking about? 21 THE WITNESS: Yeah. 22 MS. BAIRD: So I think I know at work he has 23 what's called a fax machine, and you could write a letter 24 to your daddy and Kim, and he could fax it, and they would 25 get it the same day. That would be nice, wouldn't it? 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 guys. (Whereupon, a recess was taken at 2:25 p.m. and proceedings reconvened in Courtroom No. 1 at 2:27 p.m.) THE COURT: We will let the record indicate that the Court has reconvened in the courtroom after speaking with Shaunae J. Birgensmith. And she's a very cute little girl, and obviously loves both parents. We'll enter this order. (Whereupon, the following Order of Court was entered. ) ORDER OF COURT AND NOW, this 3rd day of December, 1999, upon consideration of the matter of custody with respect to the children of Amy L. Stover and Mark A. Birgensmith and granddaughters of Gail M. Stull, and pursuant to an agreement reached in open court between the parties and counsel for the mother in the person of Lindsay Dare Baird, Esquire, and counsel for the father in the person of Peter Russo, Esquire (the grandmother's counsel, Carol J. Lindsay, Esquire, having been unavailable at this time), the terms of which agreement were outlined generally on the record and which agreement will be formalized into a proposed order for the Court to sign by counsel, the record is declared closed at this time, and the matter is taken ,.:/' 9 18 19 20 21 1 under advisement. The Court has indicated that it will 2 sign the order submitted to it by counsel at such time as I , ! 1 , i I , ~:/' I I , I I I 3 it is presented. 4 Pursuant to an agreement of counsel, the 5 Order of Court dated February 29, 1999, signed by the 6 Honorable Kevin A. Hess, which, for some reason, does not 7 appear among the docket entries and does not appear in its 8 original form in the file, will be placed in the file, and I' 9 the prothonotary is directed to docket the same. , i I r I~ I 10 By the Court, 11 Isl J. Wesley Oler. Jr. J. 12 13 THE COURT: Is that order satisfactory, Ms. - '- 14 Baird? MS. BAIRD: Yes, Your Honor. THE COURT: And Mr. Russo? MR. RUSSO: Yes, Your Honor. THE COURT: And Ms. Stull ? MS. STULL: Yes. THE COURT: As soon as you have that prepared, I'll be glad to sign it. MS. BAIRD: Thank you, Your Honor. MR. RUSSO: Thank you, Your Honor. THE COURT: Court is adjourned. (Whereupon, the proceedings adjourned at 2:31 p.m.) 15 16 17 22 23 24 25 10 I f C E R T I F I CAT ION I hereby certify that the proceedings are i " contained fully and accurately in the notes taken by me on the above cause and that this is a correct transcript of same. ------------------------------- The foregoing record of the proceedings OJ~e ~ W. :bo :fJ ;Q hearing of the within matter is hereby approved and ~ -- . C.J1 o 18 ; ~ ~ directed to be filed. ~ ..=r!~ " 'r' '0 o :~ ;J:i:l C5~ ""' J!J7.>rLI'i 2olr> Date I 11 I AMY L. STOVER Plaintiff v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 97-6578 CIVil TERM .; CIVil ACTION. LAW IN CUSTODY i I ~ MARK A. BIRGENSMITH Defendant and ~ \ GAil M. STULL Plaintiff v. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA . . : NO. 97-6578 CIVIL TERM : CIVil ACTION. LAW : IN CUSTODY : JUDGE J. WESLEY OlER, JR. . . MARK A. BIRGENSMITH Defendant AND NOW, this . (,1t ORDER day of June, 2000, upon consideration h of the attached Petition for An Emergency Hearing, a hearing Is scheduled on the J;3~ /S~ day of June, 2000, at(a.mo@o in Courtroom _I-- of the Cumberland County Courthouse to address Defendant's Pelition. ,j Distribution: (") a r:: Q lY. -01; , ffi'-" c~ :rJ ,oJ -.: '"':x .- j;'l--:!J ;J~ I ,,,F.; ~4-. C7\ e",? ~o .." 90 ~ ~: L" ~8 :~ ,'~ t~ W ';M ?J " 0 ::) -~ (1'1 ~ Lindsay Dare Baird, Esquire - Counsel for Amy L. Stover Carol Jo Lindsay, Esquire - Counsel for Gail Mo Stull Peter J. Russo, Esquire - Counsel for Mark A. Birgensmith ~~~~ +---. --,='_~,'-'-".'<<=",""",'-"'~"^ .-- '- n i I PETER J. RUSSO, ESQUIRE PA Supreme Court 10: 72897 61 West Louther Street Carlisle. PA 17013 717-249-2721 AMY L. STOVER Plaintiff Attomey for Defendant i r I i , , " Y. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA . . : NO. 97-6578 CIVIL TERM : CIVIL ACTION. LAW : IN CUSTODY MARK A. BIRGENSMITH Defendant and Y. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA . . : NO. 97-6578 CIVIL TERM : CIVIL ACTION. LAW : IN CUSTODY : JUDGE J. WESLEY OLER, JR. GAIL M. STULL Plaintiff MARK A. BIRGENSMITH Defendant PETITION FOR AN EMERGENCY HEARING AND NOW, COMES, the Defendant, Mark A. Birgensmith. by and through his counsel, Peter J. Russo, Esquire and FJVers the following in support of his Petition for an Emergency Petition: 1. On December 3, 1999, a custody hearing was scheduled in the above-captioned matter. A copy of the transcript which was created on Decembar 3. 1999 is attached hereto as Exhibit A. 2. Present at the December 3. 1999, hearing was the natural mother, Amy L. Stover, represented by Lindsay Dare Baird, the natural father, Mark A. Birgensmith, represented by Peter J. Russo and the maternal grandmother, Gail M. Stull. 3. Testimony was not required as the parties had reached a basic agreement as to the parties' respective visitation schedules. 4. A rough visitation schedule for the months of June, July and August was set forth on the record. See transcript page 2, line 18 - page 3, line 8. 5. The maternal grandmother offered her willingness to abide by any agreement entered into by the parents of the subject minor children. See transcript page 2, lines 9- 13. 6. The parties were to draft an Order for the Honorable J. Wesley Oler, Jr.'s signature which detailed the agreement of the parties. 7. The parties and counsel have worked to draft such an Order but it appears the parties are beyond further negotiations and are faced with a stalemate. 8. It is believed, therefore averred that there are no outstanding issues between natural mother and natural father. 9. The only remaining issue which cannot be agreed upon is whether the maternal grandmother, Gail M. Stull, is entitled to weekend visits in June and August. 10. Of notable importance, the remaining provisions of the Order, if agreed to by the parties and signed by the Honorable J. Wesley Oler, Jr., would require natural father to provide natural mother with summer visitation commencing on June 19, 2000. 11. An integral part of natural father's assent to the summer visitation schedule and the basis of his agreement thereto was the concept that, with the exception of June 19, 2000 at 8:00 a.m. through August 6, 2000, the balance of June and August would be time Mr. Birgensmith would be able to share with his children. WHEREFORE, Defendant respectfully requests this Honorable Court to schedule a hearing to address the outstanding issues and enter an Order at the time as to the visitation rights of Gail M. Stull for the months of June, July and August. ~y, Peter J. Russo Counsel for Defendant ; f I Date: Friday, June 02, 2000 r " r . " .' \\ EXHIBIT A 1 December 3, 1999 2 Courtroom No. 1 3 2:16 p.m. 4 THE COURT: This is the time and place for a 5 custody proceeding in the case of Stover v. Birqensmith at 6 No. 97-6578 CIVIL TERM. We will let the record indicate 7 that the mother's counsel, Lindsay Dare Baird, Esquire, is 8 present in court, as is the father's counsel, Peter Russo, 9 Esquire. Carol J. Lindsay, Esquire, who represents the 10 maternal grandmother, is not present, but I believe the 11 maternal grandmother has appeared and is satisfied to abide 12 by any agreement that the parents an'ive at, am I correct? 13 MS. STULL: Yes. 14 THE COURT: Okay. And just for the record, 15 maybe you could say your name? 16 MS, STULL: Gail Stull. 17 THE COURT: Okay. Thank you. Mr. Russo. 18 MR. RUSSO: Your Honor, the parties have 19 agreed, for the purposes of visitation through the months 20 of June, July, and August, Amy Stover would begin her 21 custody on June 19th at 8 a.m.; children will remain in her 22 custody until 6 p.m. on August 6th, During that time 23 period, and throughout all of their custody time, the 24 parties have agreed to allow their children to have liberal 25 visitation-- I'm sorry, liberal phone visitation as well as 2 1 written correspondence. 2 Mrs. Stover has agreed to provide any 3 medication to the children that Mr. Birgensmith provides. 4 And in terms of any additional provisions, we will provide 5 you with an order that will hopefully encompass all of the 6 prior orders, so you may vacate any prior order and use 7 this as the standing order for Mr. Birgensmith's rights, 8 Ms. Stover's rights, and Ms. Stull's rights. 9 THE COURT: All right. , ~ 12 MS. BAIRD: I would only request an 10 MR. RUSSO: Ms. Baird, have I missed 11 anything? 15 MR. RUSSO: Acceptable. i , I 1- I~ I ! I I I 13 amendment to that to state that, Mrs. Stover is agreeable 14 to administer prescribed medications to the children. 16 THE COURT: And did the parties want me, 17 notwithstanding the agreement, to speak with one of the 18 children? 19 MR. RUSSO: Yes, Your Honor, we'd ask you to 20 speak with Shaunae, the older daughter. , , 21 THE COURT: Okay, We'll recess and 22 reconvene in chambers, and I'll speak with that child. 23 MS. BAIRD: Thank you, Your Honor. 24 MR. RUSSO: Thank you, Your Honor, 3 25 THE COURT: I assume counsel wish to be t~ F:-, t" 1 present? 2 MS. BAIRD: Yes, Your Honor. 3 MR. RUSSO: Yes. 5 and proceedings reconvened in chambers at , i ~ 4 (Whereupon, a recess was taken at 2:19 p.m. 6 2:21 p.m.) I ~ 7 THE COURT: Shaunae, would you raise your 8 right hand, please? 11 having been duly sworn, testified as follows: 9 Whereupon, 10 SHAUNAE BIRGENSMITH 12 THE COURT: All right, Shaunae, my name is I r r i , 1 13 Wesley Oler, and I am the judge in this case where both of 14 your parents would like to spend more time with you. And, 15 unfortunately, there's only one of you, so we have to try 16 to resolve that so that everybody is happy. And I think 17 your parents have pretty much resolved it agreeably, but I 18 know that you might have wanted to say some things about 19 where you'd like to spend most of your time. So go ahead. 20 THE WITNESS: When-- I forget what I was 21 going to say. 22 THE COURT: Well, where do you feel you'd 23 like to spend most of your time? 24 THE WITNESS: Well, I feel like it should be 25 even. I forget how many months there are. 4 1 THE COURT: Well, you don't have to say 2 anything, Maybe you don't really want to express a 3 preference. And if you don't, that's perfectly okay. 4 THE WITNESS: I think there should be even 5 months. 6 MS. BAIRD: That's a wise young lady. 7 THE COURT: Okay, Well, that's fine. 8 MR. RUSSO: Is there anything you want to 9 tell the judge about your journal? 10 THE WITNESS: I've been keeping some stuff 11 down as I went to my mom's, and as I came back, and when I 12 went to my grandma'S, 13 THE COURT: Every day, you keep a record? 14 THE WITNESS: Not every day. Sometimes I do 15 it every other day. 16 THE COURT: I see. 17 MS. BAIRD: Did you have fun when you were 18 at your mom's? 19 THE WITNESS: Yeah. , , L 20 MS. BAIRD: Good. Do you get along with 21 Tyler? 22 THE WITNESS: (Witness nodded head 23 affirmatively,) Except it feels like I'm the tallest in 24 the room, because I sleep on the top bunk. 25 MS. BAIRD: Tyler is Amy's husband's son. 5 1 THE COURT: Oh, I see. How old is Tyler? 2 THE WITNESS: Seven. 3 THE COURT: I see. I . ~ ! ' ! ' I ~ , I I ! I 4 MS. BAIRD: Is he a nice little boy? I 5 haven't had a chance to meet him. 6 THE WITNESS: Khloe is seven, too. 7 MS. BAIRD: I know. You guys are all 8 getting too big. 9 MR. RUSSO: The girls have the bunk bed, and 10 Tyler has the regular bed. 11 MS. BAIRD: Do you like being up on top like i , ,. I~ I I 12 that? 13 THE WITNESS: When I stand up, I can 14 actually stand on my flat feet. 15 MS. BAIRD: And still not hit the ceiling? 16 THE WITNESS: Yeah. 17 MS. BAIRD: My golly. 18 THE WITNESS: The ceiling is a little bit 19 bigger than our ceiling at home. 20 THE COURT: Well, Shaunae, it's really nice 21 to meet you. And you're a really cute little gi~l. 22 MS. BAIRD: How did you bump your face? 1 , , I I I \ , "r 23 THE WITNESS: I was trying to do a hand 24 stand, and instead I brush-burned my face, 25 MS. BAIRD: You sure did. You did a face :1. ~. I~ ,,! . , , ,. ,!" 6 1 stand. 2 MR, RUSSO: We agreed that you were going to 3 be able to talk to mommy or daddy whether you're here in 4 Pennsylvania or out in Illinois any time you want. Is that 5 okay? 6 7 8 THE WITNESS: Yeah. MR. RUSSO: All right. MS. BAIRD: And you can write letters to 9 your mommy, and you can write letters to your daddy when 10 you're with your mommy, Doesn't that sound as it should 11 be? 12 THE WITNESS: (Witness nodded head 13 affirmatively.) 14 MS. BAIRD: Yeah. I bet, because I know 15 that-- what do you call Scott, Amy's husband? 16 THE WITNESS: I sometimes call him daddy, 17 when it's okay with him. But sometimes when I don't feel 18 like calling him daddy, I call him Scott. 19 MS. BAIRD: Okay, So if I call him Scott, 20 you know who I'm talking about? 21 22 THE WITNESS: Yeah. MS. BAIRD: So I think I know at work he has 23 what's called a fax ~achine, and you could write a letter 24 to your daddy and Kim, and he could fax it, and they would 25 get it the same day. That would be nice, wouldn't it? :.> ~c~ 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Maybe you can talk to them about that. THE WITNESS: We have a fax machine at our house. MR. RUSSO: MS. BAIRD: You can get it eVp.n easier. You can fax your mom, and it can get there that day, too. THE WITNESS: Except, we don't know the Air Force Base, MS. BAIRD: THE COURT: I bet ya they'd tell you. Peter, is there anything else you wanted to ask Shaunae? MR. RUSSO: Shaunae, any other things you want to tell the judge? THE WITNESS: MR. RUSSO: Not really. No other problems, no other concerns? THE WITNESS: No. MR. RUSSO: Okay. THE COURT: Lindsay, did you have anything you else you wanted to ask? MS. BAIRD: No, I don't. THE COURT: Okay. It's very nice to meet you. Thanks for coming in. MS. BAIRD: You did a real good job. You're very brave. It's kind of a little bit scary with us big 8 1 guys. 2 (Whereupon, a recess was taken at 2:25 p.m. 3 and proceedings reconvened in Courtroom No. 4 1 at 2:27 p.m.) 5 THE COURT: We will let the record indicate 6 that the Court has reconvened in the courtroom after 7 speaking with Shaunae J. Birgensmith. And she's a very 8 cute little girl, and obviously loves both parents. We'll 9 enter this order. 10 (Whereupon, the following Order of Court was 11 entered.) 12 ORDER OF COURT . 13 AND NOW, this 3rd day of December, 1999, ~ 14 upon consideration of the matter of custody with respect to 15 the children of Amy L. Stover and Mark A. Birgensmith and 16 granddaughters of Gail M, Stull, and pursuant to an 17 agreement reached in open court between the parties and 18 counsel for the mother in the person of Lindsay Dare Baird, 19 Esquire, and counsel for the father in the person of Peter 20 Russo, Esquire (the grandmother's counsel, Carol J. 21 Lindsay, Esquire, having been unavailable at this time), 22 the terms of which agreement were outlined generally on the 23 record and which agreement will be formalized into a 24 proposed order for the Court to sign by counsel, the record 25 is declared closed at this time, and the matter is taken 9 1 under advisement. The Court has indicated that it will 2 sign the order submitted to it by counsel at such time as 3 it is presented. 4 Pursuant to an agreement of counsel, the 5 Order of Court dated February 29, 1999, signed by the 6 Honorable Kevin A. Hess, which, for some reason, does not 7 appear among the docket entries and does not appear in its 8 original form in the file, will be placed in the file, and 9 the prothonotary is directed to docket the same. 10 By the Court, 11 Isl J. Weslev Oler. Jr. J. 12 13 THE COURT: Is that order satisfactory, Ms, 14 Baird? 15 MS. BAIRD: Yes, Your Honor. THE COURT: And Mr, Russo? MR. RUSSO: Yes, Your Honor. THE COURT: And Ms. Stull ? MS. STULL: Yes. THE COURT: As soon as you have that prepared, I'll be glad co sign it. MS. BAIRD: Thank you, Your Honor. MR. RUSSO: Thank you, Your Honor. THE COURT: Court is adjourned. (Whereupon, the proceedings adjourned at 2:31 p.m.) 16 17 18 19 20 21 22 23 24 25 10 C E R T I FIe A T ION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause and that this is a correct transcript of same, ------------------------------- The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. ~ 7J1 L I 'i lo()-~ Date I 11 i'; (') 0 0 c;: c::> "1'\ ... <- ,., ~C:.~ r: T :"l) ('i;:l . 7, .... ." .'. t. , I .,.-f' . ' ";,..;1 (~I ,.., ~:~r J :":.-:-1 :1";(1 'n ;l;;t ~~J r- urn ,. -~ ~ .'.) ~p 0,., 'J :<; (I,:' . AMY L. STOVER II GAIL M. STULL PLAINTIFF IN TIlE COURT OF COMMON PI.EAS OF CUMBERI.AND COUNTY, PENNSYL VANIA V. 98-60171/ CIVil. ACTION LAW 0197-6578 MARK A. BIRGENSMl1lI DEFENDANT IN CUSTODY ORnER OF CC)(1RT AND NOW, Tbund.y, July 03,2003 . upon consideration of the attached Complaint, it is hereby directed that parties and their respeclive cOllnscl appear belore _ D....n S. Sund.y, E.q. . the conciliator, at 39 Wut M.ln Streel, Mech.ntc.bura, PA 170SS on ___ Tuesd.y, AURU.119, 2003 at 10:00 AM for a Pre,Hearing Custody Conference. At sllch conference, an eff(Jrl will be made to resolve Ihe issues in dispute; or if this cannot be accomplished. to dcline and narrow the issucs to be heard by the court, and to enter into a lemporary order. All children alle live or older may also be present at the contcrence. Failure 10 appear althe conference may provide grounds for entry of a temporary or pt'ffilanent order. Tbe court bereby dlrecls Ibe parties 10 furnlsb any and all exlsllng Prolccllon from Abuse orders, Special ReUef orders, and CUSlody orders to tbe conclllator 48 bours prior to scheduled bearlnll. 1 r FOR THE COURT, By: Is! Dawn S. SlInd4JI. EJq. Custody Conciliator " The Court of Common Pleas of Cumberland Counly is required by law to comply with the Americans with Disabilites Act of 1990. For infonnation about accessible lacilities and reasonahle accommodations available to disabled individuals having business he lore the court. please contact our ollice. All arrangements must be made at least 72 hours prior to any hearing or business hetore the court. You mUSI attend the scheduled conference or hearing. YOU SHOULD TAKE THIS PAPER TO YOUR ATfORNEY AT ONCE. IF YOU DO NOT HA VE AN A TfORNEY 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 Associalion 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249.3166 ',;./ UJ ..I~ i'. - " . , .. .i. ~5 ClJIvU....i _", hJ .~.'., \...:j'~TY PENNSYl~'AN1A (j,,( C~';"d ~.tJ.,/ l1 ~/1 &~~ a~~<1 .M-I:A/ ;& ,,4 ~t...~ q' R~ t~ ~ -;a/f~ AMY L. STOVER. Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JUl 0 2 2003 v. CIVIL ACTION. LAW c$~' . fl.? ' ~ NO. 9..aS IN CUSTODY , ~,,(/,') CIVIL TERM MARK A. BIRGENSMITH, Defendant and GAIL M. STULL, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBl'RLAND COUNTY. PENNSYLVANIA CIVIL ACTION. LAW I ~ v. MARK A. BIRGENSMITH. Defendant NO. 97-8578 IN CUSTODY CIVIL TERM v ORDER OF COURT AND NOW. thll _ day of June, 2003. upon consideration of the attached petition, It II hereby directed that the partlee and their respective counsel appear before , the conciliator. at on the _day of ,2003, at m., for a Pre,Hearlng Custody Conference. At such conference, an effort will be made to relolve the Illuesln dispute; or if this cannot be accomplished, to dsfine and narrow tha Issues to be heard by the court, and to enter Into a temporary order. All children aga 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. I t. b , I I FOR THE COURT. By: Custody Conciliator The Court of Common Pleas of CumbElrland County Is required by law to comply with the Amerlcanl with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodation I available to disabled Individuals having business before the court, please contact our office. All arrangemfnts 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 LAWYER AT ONCE. IF YOU 00 NOT HAVE A LAWYER OR CANNOT AFFORD ONE. GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FINO OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PENNSYLVANIA 17013 TELEPHONE: (717) 249,3166 cc: Lindsay Dara Baird. Esq. Peter J. RUllO. Esq. Carol J. Lindsay. Esq Conciliator 1 I AMY L. STOVER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW , c;s- "dJr; ,(.(O~ NO. '97-6378 CIVIL TERM IN CUSTODY v. MARK A. BIRGENSMITH, Defendant and GAIL M. STULL, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW MARK A. BIRGENSMITH, Defendant NO. 97-6578 IN CUSTODY CIVIL TERM PETITION FOR MODIFICATION OF CUSTODY NOW comes the petitioner, Amy L. Stover, by her attorney, Lindsay Dare Baird, Esquire, and presents the following petition for modification of custody and avers as follows: 1. Petitioner is Amy L. Stover, an adult individual residing at 507 Wilder Court, Fayetteville, Cumberland County, North Carolina 28314. 2. Respondent III Mark A. Blrgensmlth, an adult Individual residing at 416 Bloservllle Road, Newville, Cumberland County, Pennsylvania. (') c:> t; (..'\ 0 3. The parties are the natural parents of two minor children, ShaunM:4. ;-:; -; Blrgensmlth, age 13, born May 19,1990, and Khloe M. Blrgensmlth, age;;l,1, born, ' T: February 19, 1992. ~?: .':1;; ~-- I , ~ .I.. >' "Tl 'U 4. On August 23,2000, this honorable Court entered a custody or(erreg8hllngJ~~ the children. A true and correct copy of the Order Is Incorporated herein a~ att~h~'" hereto as Exhibit "An, :< ;: ~. 5. Pursuant to the Order, the parties enjoy shared legal custody of the children, respondent has primary physical custody and petitioner has certain specified periods of partial physical custody. 6. Petitioner believes and therefore avers that circumstances since the entry of the aforesaid Order have changed requiring a review and revision of the current custody provisions for the parties' minor children. 7. The petitioner believes the respondent and his spouse are having a significant detrimental effect on the children, and is seeking primary physical custody of both minor children, Shaunae and Khloe. The petitioner, on behalf of the children, requests that they remain in the custody of the petitioner until a custody ruling is made. 8. The petitioner requests that the respondent be restricted from acquiring and administering medication to the children except in the case of minor ailments such as colds, headaches, or allergies, etc. where medication has been prescribed by an emergency room physician or provided by the petitioner. The petitioner knows that the respondent is currently administering mind and attitude altering medications to the children for conditions of which they have not been medically diagnosed. i ~ 9. Petitioner requests that she be notified by the respondent Immediately when the children are taken to the emergency room or hospitalized while In his care. 10. Petitioner requests that neither the respondent, nor his spouse, prevent or discourage communication between petitioner and the children while the children are In his care. 11. Petitioner requests that the respondent have the children for summer visitation beginning the Monday following Father's Day, in June. The respondent will provide three days' notice of the specific time he will be arriving to pick up the children. The respondent will take the children to the home of Gail Stull, the matemal grandmother, on July 25, 2003, at noon, for her week of visitation with the children. 12. Petitioner requests, on beh~Jf of the children, that the respondent have visitation with them on the 4th Friday, Saturday, and Sunday of each month except July. He will pick them up at 4:30 pm on Friday, and return them to the petitioner by 4:30 pm on Sunday. In July, the respondent will already have had the children for the majority of the month. In this case, he will waive the fourth weekend In this month, Modification of the weekend visitations can be requested by the respondent with at least seven days' notice to the petitioner. Petitioner will not unreasonably withhold her consent. 13. Petitioner requests that the holidays of Christmas and New Year will alternate every year. The respondent will have the children Christmas, 2003. The number of days that the children have off from school between the holidays will be split equally between respondent and petitioner. The petitioner Is requested to give three days' notice regarding his pick up time to the petitioner. Drop off time is noon. 14. The petitioner requests, on behalf of the children, that they be permitted to bring the personal belongings of their choosing (with the exception of furniture> to her home. 15. The petitioner requests, on behalf of the children, that they be pennitted to refuse visitation with the respondent if it is emotionally or physically too difficult for them. 16. The petitioner requests, on Shaunae's behalf, that she be able to return home during a visitation if she so requests. 17. The petitioner knows of no other party interested in this proceeding which has not been named in the petition and received notice thereof. WHEREFORE, petitioner respectfully requests that the Court grant her primary physical custody of the children and responde:1t periods of partial custody as suggested in the foregoing petition. I I ! ~ Ie ! . , --, I ~ 1 , July / . 2003 ,.., i ; . ~ ~ ! , i. ., Ii'( , L.lndssy Dare 8,lr ,Esquire ,/ Attorney for Petitioner 37 South Hanover Street Cartisle, Pennsylvania 17013 (717) 243-5732 Supreme Court 1.0. No. 72083 I verify that to the belt of my knowledge and belief, the statements in the foregoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 PaCS 54904 relating to unswom falsification to euthoritles. i Cdu~&:,,\t=, / indsay Dare,Sa ,Esquire (/' For the Petitioner /Illl; i~ I ,'11110) i . '>1 AMY L. STOVER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION -LAW IJe . t:.ca 7 MARK A. BIRGENSMITH, No. 91'.8678 CIVIL h Defendant IN CUSTODY and 0# GAIL M. STULL, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. No. 97 - 6578 CIVIL TERM .~ CIVIL ACTION - LAW MARK A. BIRGENSMITH, Defendant IN CUSTODY /I ') ra ,- AND NOW, this ^'") day of ( , 2000, all prior custody orders are vacated and a new custody agreem is set forth as follows: . .... .- .. 1, Father, Mark A. Birgensmith and Mother, Amy L. Stover, shall enjoy shared legal custody of their minor children, Shaunae J. Birgensmith, born May 19, 1990 and Khloe M. Birgensmith, born February 19, 1992. 2. Father shall have physical custody of the children at all times not otherwise specified for Grandmother, Gail Stull, and Mother. 3. Mother's periods of physical custody are as follows: A. During the summer months from June 19, 2000, at 8:00 am until August 6, 2000, at 6:00 pm. a. During the summer vacation period, Mother shall give the children all prescription medications. C. Mother shall also exercise custody with the minor children for one weekend per month that Grandmother exercises custody. In the event that the mother is unable to be in the Carlisle area during that time and Mother advises father at least seven days In advance, the weekend custody time for Grandmother may be modifled to accommodate Mother's schedule so that Mother and Grandmother shall enjoy EXHIBIT "A" custody with the minor children at the same lime. Father shall cooperate In this rescheduling subject to any prior significant commitment that Father has made in connection with the minor children. 4. The Grandmother shall have partial physical custody of the children in accordance with the following schedule: A. Beginning the second Friday of each month from Friday at 5:30 pm until Sunday at 5:30 pm. Should this weekend In June fall before Mother's summer custody cCJmmences, Grandmother's weekend will begin Friday at 6:00 pm and end Saturday at 3:00 pm. Grandmother waives this period during the month of August. B. On the fourth Friday of each rolonth from 4:30 pm until 8:00 pm. Grandmother waives this period during the months of June, July and August, unless the fourth weekend in August occurs after school commences. C. On the Friday after Thanksgiving day from 10:00 am until 8:00 pm. D. On the day before or the day after the children's birthdays for a reasonable period of time as arranged by agreement between the parties. E. For one week each summer school break which shall be scheduled with Mother during Mother's summer custody. Except as stated In Paragraph A., supra, Grandmother's regular periods of partial custody shall recommence when the children return to school. 5. Both parents and Grandmother shall enjoy liberal phone and mailing contact with the children. The minimum amount of phone contact is one call per week. 6. None of the parties shall malign any other party to the children. 7. All school districts where the children attend are hereby authorized to release to the above mentioned Mother and Father all school records pertaining to the mentioned minor children. The schools are authorized to release the Information to both parents without further order of court or without further written authorization from either parent. 8. All medical facilities and physicians who are treating the minor children are hereby authorized to release medical records to both parents without further order of this court or without further written authorization from either parent. Furthermore, the custodial parent shall always notify the other parent as to any anticipated medical expenses that will be incurred for the children. 9. Father shall have custody of the children from the release of school for the Chrlatmas holiday until noon on December 26. Mother shall have custody from 12:00 pm on December 26 until 12:00 pm on the day before the children are to return to school. \ , , . . I i. , , . I I cc: Lindsay Dare Baird, Esq. Peter J. RUBSO, Esq. Carol J. lindsay, Esq. i l CORRECTION / Previous Image Refilmed to Correct j Possible Error . AMY l. STOVER /I GAIL M. S11JLL PLAINTIFF IN TilE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, pENNSYL VANIA V. 98-6017/1 CIVIL ACTION LAW 197-6578 MARK A. BIRGENSMlTII DEFENDANT IN CUSTODY ORnF.R OF COIIRT AND NOW, Thunday, July 03,2003 , upon consideration of the attached Complaint, it is hereby directed thai parties and lheir respective counsel appear bclol'e Dawn S. Sunday, E.q. . the conciliator, at 39 We'l Main Streel, Mechanlcsburg, PA 17055 on Tue,dav, AUlU.li9, 2003 a110:00 AM for a Pre.Hearing Custody Conference. AI such confcrence. an effort will be made to resolve the issues in dispute; or iflhis cannot be accomplished. to define and narrow the issues 10 be heard by the court, and to enter into a tcmporary order. All children alle five or older may also he prescnl althe conlerenee. Failore to appear althe conference may provide grounds for entry of a temporary or permanent order. Tbe court bereby dIrects the parties to Curnlsh any aud all existing Protection from Abuse orders, Special RelleC orders, and Custody orders to the conciliator 48 hours prior to scheduled hearlnK. FOR THE COURT, By: '" Dawn S. Sunday, Esq. Custody Conciliator [,.. The Court of Common Pleas ofCumberJand County is required by law to comply wilh the Americans with Disabilites Act of 1990. For infonnation about accessible facilities and reasonable accommodations available to disabled individuals having business before the court. please conlact our ollice. All arrangements must be made at leasl 72 hours prior to any bearing or business before the court. You must attend the schcduled conference or hearing. YOU SHOULD TAKE TillS PAPER TO YOUR AHORNFY AT ONCE. IF YOU DO NOT IIA VE AN A HORNEY OR CANNOT AFfORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTII BELOW TO FIND OUT WHERE YOU CAN GET LEGAL IIELp. Cumberland Counly Bar Association 32 South Bedlord Street Carlisle. pennsylvania 17013 Telephone (717) 249,3166 ~',. , ',.J( llj ,Nil, ') 1;, ,I: .15 CUM!.!:..c,....; v,;JNTY P5'IJNSYLV.AJ'-J1A , ~d ~';"d ~.~ ~ 4:1 &~~ a~-t~<1 IW.:A~ ~ ('14 ~~ 9" ~~ t~ ~ ~a/1~"? ,j . . AMY L. STOYER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JUL 0 2 2003 v. CIVIL ACTION. LAW c$:f" . IfM'~ NO. 9 -6516 IN CUSTODY , ~,,(I'> CIVIL TERM MARK A. BIRGENSMITH, Defendant and GAIL M. STULL, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION. LAW v. MARK A. BIRGENSMITH, Defendant NO. 97-8578 IN CUSTODY CIVIL TERM V' ORDER OF COURt AND NOW, this _ day of June, 2003, upon consldaratlon of the attached petit/on, It Is hereby directed that the parties and their respective counsel appear before , the conciliator, at on the _day of ,2003, at m., for a Pre-Hearing Custody Conference. At such conference, an effort will be made to relolve 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 oge 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. FOR THE COURT, By: Custody Conciliator The Court of Common Pleas of Cumberland County Is required by law to comply with the Americans with Disabilities Act of 1990. For Information aboutsccesslble facilities and reasonable accommodations available to disabled Individuals having business before the court, please contact our offlca. All arrangements must be mada at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conferenca or hearing. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER 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 32 SOUTH BEDFORD STREET CARLISLE, PENNSYLVANIA 17013 TELEPHONE: (717) 249,3166 CC: L1ndssy Dare Baird, Esq. Peter J. RUllO. Esq. Carol J. L1ndaay, Esq. ConcUlator AMY L. STOVER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW I tjf" uhl'~ b(/~ NO. '&r-6518 CIVIL TERM IN CUSTODY v. MARK A. BIRGENSMITH, Defendant and GAIL M. STULL, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW v, MARK A. BIRGENSMITH, Defendant NO. 97-6578 IN CUSTODY CIVIL TERM PETITION FOR MODIFICATION OF CUSTODY NOW comes the petitioner, Amy L. Stover, by her attorney, Lindsay Dare Baird, Esquire, and presents the following petition for modification of custody and avers as follows: 1. Petitioner is Amy L. Stover, an adult Individual residing at 507 Wilder Court, Fayetteville, Cumberland County, North Carolina 28314. 2. Respondent is Mark A. Birgensmith, an adult individual residing at 416 Bloservllle Road, Newville, Cumberland County, Pennsylvania. r ~ 0 3. The parties are the natural parents of two minor children, Shaun~I,"J. ;:= ; Blrgensmlth, age 13, born May 19,1990, and Khloe M. Birgensmlth, age;li1, borri':-r; February 19, 1992. !:~: I --::'] {:.:oII.I ;i.~., " . :':r~ 4. On August 23,2000, this honorable Court entered a custody or~CltregSfi:flngJt the children. A true and correct copy of the Order Is Incorporated herein aM att~he.d) I a hereto as Exhibit "A", "" 0&:- :'!J ' 5. Pursuant to the Order, the parties enjoy shared legal custody of the children, respondent has primary physical custody and petitioner has certain specified periods of partial physical custody. 6. Petitioner believes and therefore avers that circumstances since the entry of the aforesaid Order have changed requiring a review and revision of the current custody provisions for the parties' minor children. 7. The petitioner believes the respondent and his spouse are having a significant detrimental effect on the children, and Is seeking primary physical custody of both minor children, Shaunae and Khloe. The petitioner, on behalf of the children, requests that they remain In the custody of the petitioner until a custody ruling Is made. 8. The petitioner requests that the respondent be restricted from acquiring and administering medication to the children except In the case of minor ailments such as colds, headaches, or allergies, etc. where medication has been prescribed by an emergency rOOM physician or pruvided by the petitioner. The petitioner knows that the respondent Is currently administering mind and attitude altering medications to the children for conditions of which they have not been medically diagnosed. 9, Petitioner requests that she be notified by the respondent Immediately when the children are taken to the emergency room or hospitalized while In his care. 10, Petitioner requests that neither the respondent, nor his spouse, prevent or discourage communication between petitioner and the children while the children are In his care, 11. Petitioner requests that the respondent have the children for summer visitation beginning the Monday following Father's Day, In June. The respondent will provide three days' notice of the specific time he will be arriving to pick up the children. The respondent will take the children to the home of Gail Stull, the maternal grandmother, on July 25, 2003, at noon, for her week of visitation with the children. 12. Petitioner requests, on behalf of the children, that the respondent have visitation with them on the 4th Friday, Saturday, and Sunday of each month except July. He will pick them up at 4:30 pm on Friday, and return them to the petitioner by 4:30 pm on Sunday. In July, the respondent will already have had the children for the majority of the month. In this case, he will waive the fourth weekend in this month, Modification of the weekend visitations can be requested by the respondent with at least seven days' notice to the petitioner. Petitioner will not unreasonably withhold her consent. 13. Petitioner requests that the holidays of Christmas and New Year will alternate every year. The respondent will have the children Christmas, 2003. The number of days that the children have off from school between the holidays will be split equally between respondent and petitioner. The petitioner Is requested to give three days' notice regarding his pick up time to the petitioner. Drop off time Is noon. 14. The petitioner requests, on behalf of the children, that they be permitted to bring the personal belongings of their choosing (with the exception of furniture) to her home. 15. The petitioner requests, on behalf of the children, that they be permitted to refuse visitation with the respondent if it is emotionally or physically too difficult for them. custody with the minor children at the same time. Father shall cooperate In this rescheduling sUbject to any prior significant commitment that Father has made In connection with the minor children. , i i I I I " I 4. The Grandmother shall have partial physical custody of the children In accordance with the fOllowing schedule: A. Beginning the second Friday of each month from Friday at 5:30 pm until Sunday at 5:30 pm. Should this weekend In June fall before Mother's summer custody commences, Grandmother's weekend will begin Friday at 6:00 pm and end Saturday at 3:00 pm. Grandmother waives this period during the month of August. B. On the fourth Friday or each month from 4:30 pm until 8:00 pm. Grandmother waives this period during the months of June, July and August, unless the fourth weekend In August occurs after school commences. C. On the Friday after Thanksgiving day from 10:00 am until 8:00 pm. D. On the day before or the day after the children's birthdays for a reasonable period of time as arranged by agreement between the parties. E. For one week each summer school break which shall be scheduled with Mother during Mother's summer custody. Except as stated In Paragraph A., supra, Grandmother's regular periods of partial custody shall recommence when the children return to school. 5. Both parents and Grandmother shall enjoy liberal phone and mailing contact with the children. The minimum amount of phone contact is one call per week, 6. None of the parties shall malign any other party to the children. 7. All school districts where the children attend are hereby authorized to release to the above mentioned Mother and Father all school records pertaining to the mentioned minor children. The schools are authorized to release the Information to both parents without further order of court or without further written authorization from either parent. . 8. All medical facilities and physicians who are treating the minor children are hereby authorized to release medical records to both parents without further order of this court or without further written authorization from either parent. Furthermore, the custodial parent shall always notify the other parent 8S to any anticipated medical expenses that will be incurred for the children. 9. Father shall have custody of the children from the release of school for the Christmas holiday until noon on December 26. Mother shall have custody from 12:00 pm on December 26 until 12:00 pm on the day before the children are to return to school. ! I ~ ~ cc: Lindsay Dare Baird, Esq. Peter J. Russo. Esq. Carol J. L1ndlay. Esq. I I i I , I Tr.~ II! (:", {,,, In T. i)tlJlll'l' ';1-. ' ;;::~~li j ~i t.!"".t ',I r~."\ .I;h I 'It" "Jold , . --J", ;,J" .'J. ui!/llJ!.\" ~/ >rolhunOlijJy '-r{ .