HomeMy WebLinkAbout97-06919
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'1'111'.: COUI,T:
Mr. ({us"o.
MH, HUSSO: Your 1I0nor, Peter Russo for the
defendant in this matter) Kim Birgensmith. Your Honor, at
this point the defendant would like to make a request to
have Audrey Aarhus testify by telephone. And, obviously,
we have talked with opposing cOllnsel about it. I am sure
he will tell you his feeiings now.
MR. KAYER: Your Honor, although we
recognize under the rules that it is your discretion to
allow telephone testimony, we object to the offer of Ms,
Aarhus as a teiephone witness,
THE COURT: Well, we have heard from this
witness before, and [ think we can assess her credibility.
I am also told that this matter, am I correct, involves the
nature and extent of partial custody? We are not here 011
the underlying order or anything like that?
MR, RUSSO:
THE COURT:
Partial custody, correct --
I hate to call it a minor issue,
because I am sure it is very important to the parties. But
on the scheme of things it simply relates to partial
cllstody?
MR. RUSSO: Yes, sir,
MR. KAYER: That's correct,
THE COURT: Those observations having been
made, we will permit the telephone testimony.
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MH, HU~;SO: You r lIonor, could we do that
here in the courtroom or do we have to go into chambers?
THE COUi''!':
[ haven't the faintest idea yet,
Why don't we take some testimony from your clients so I
know what the issues are in this case, and then we will go
from there.
~1R. RUSSO: Call Kim Birgensmith then.
Whereupon, KIMBERLY BIHGENSMI'!'H, having
been duly sworn, test i f.ied as follows:
DIREC'!' EXAMINATION
BY MR. HlJSSO:
Q Would you state your name?
A Kim Birgensmith,
Q Could you identify with whom you live
presently?
A I live with my husband, Mark Birgensmith, my
two children, Kayleigh and Matthew, and his two children,
Shawnee and Chloe.
Q Are you aware of the existing court order
that was entered by way of agreement on June 5th of 1998?
A Yes, I am,
Q And June 5th was Gregory Cox's first visit,
correct?
A I believe it was his first overnight. It
was probably the first visit after that -- there were
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visits prior to that, but after the ordor was in effect,
yes, that was...
Q How dld those visits go?
A Well, not real good. The children told me
that they had wished they could call me and say good night.
And they came home with bruises, And my daughter Was bit
by a Rottweiler. She had several bites on her. She had an
earache from the cigarette smoke. And they were covered
with di rt.
Q And you are talking about these concerns
came up as Mr, Cox began overnight visits?
A Yes,
Q Were there any other concerns that you had?
A Well, yes. The lack of supervision that
goes on. Every visit they come home with more bruises or
scrapes or blisters. They also tell me that they don't see
him much, that they spend their time with grandma and their
Aunt Michelle and her children. They sometimes are not
able to finish their homework when they come home due to
being late, Or he shows up early sometimes and sits out
there and waits and gets angry, but it is nqt time for them
to go yet,
Q With regard to coming home late, when are
the children supposed to be home?
A At 6:00 p.m. Sunday,
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1 Q And what time do they get home?
2 A Well, sometlmcs It is only five or ten
3 minutes late. But there wcrc timcs whcn hc was an hour and
4 a half late. And that was -- we werc waiting to leave on
5 vacation, It was a (;ummertime visit. And we were waiting
6 to leave on vacation. And we had to postpone it an hour
7 and a half. Our house sitter was already there and trying
8 to get her things together, And we were still there
9 waiting.
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My son came in, and he had a large bruise on
11 his back, which my husband and Greg got into an argument
12 about, I was not preser.t at the argument. I was taking
13 care of the ch i ldren. I don I t know wha t was said.
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Q
Were you ever able to identify how the
15 bruises occurred?
16 A Apparently he wrecked a bicycle when he was
17 at his visit. There was nothing mentioned about why they
18 were so late, My children tell me that they bad mouth us.
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They tell us that we are not allowed to be
they are not
20 allowed to call us mom and dad. They have to call us Mark
21 and Kim.
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Q Have you made any other observations about
your child ren since these overnight visIts have started?
A They don't want to go. They Cl,y and they
cry to me, and they tell me they don't want to go. But I
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tell t.hem that they have to go, and r send them, They are
increasingly more violent toward each other and toward the
other children in our household, They are continualiy late
for church during his visits, Fifteen, twenty minutes, a
half hour late for church,
Q Besides being late for church, are there any
other problems relative to their Sunday school?
A Well, they miss their you know, they miss
the whole mor~ing devotion when they are late. They begin,
YOll knoll".
Q What time does Sunday school start?
A 9:15. And they get there 9:30, 9:35.
Q With regards to the children's school, have
you seen any change in their school work since their
overnight visits?
A Well, my daughter had a couple of episodes
with not listening to the teacher and acting out violently,
which is not like her. My son has learning disabilities.
And he has large amollnts of homework, And he struggles.
On his those weekends his homework cannot be completed.
And it has to go another day.
Q Can you describe what your communication
with the plaintiff has been like with Greg, how you guys
have been able to communicate with one another regarding
the children?
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A l3ilck in the summertime we did speak on
occasion when we were picking up -- when he was picking
them up. Or he would telephone me. Sometimes it got into
an argument, But as of late, the past -- r would say since
summer, he won't even speak to us. He won't acknowledge
that we are there. My daughter has medication from time to
time because of bronchitis or ear infections. And we
attempt to explain the medication. And he just is very
non-cooperative, He doesn't reply. He doesn't even
acknowledge that we spoke to him.
He doesn't even speak nicely to the
children. It is always just get in the car.
Q Have you experienced any problems regarding
any of the holiday visits with the children and their
father?
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A Well, we don't really have a beginning time
for when our holiday starts. His holiday is the only one
listed_ And we have no start time for our Christmas or our
Thanksgiving. So if it falls on his -- we don't have a
time if it would fall on his weekend.
Q Were you able to provide time for Mr. Cox's
visitation with your children during their birthdays?
A He never asked. He never replied. And on
July 4th he never even showed up for his visit on July 4th.
Q This present order has been in effect for
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approximately six months. And you have been able to
experience it for that period. Are there any changes that
you would like to see Ln it?
A I wouLd like to see it reduced to one
overnight so that we don't have the conflict with church,
There was one particular incLdent where it got into a very
large battle outside the church. He was transporting
children unsafely. And we offered to transport them for
him. At which Ume it got very ugly. I took the children,
and I put them in the van so that they didn't have to hear
the argument, And as far as what was said, I cannot
testify to that, because I ',;as not in the argument,
Q Is there anything else about the current
order that you would like to see changed?
A Yes. Since he has shown no interest i~ the
birthday, I think that we should remove that. I need to
have a start time for my Christmas and my Thanksgiving.
And the Memorial Day extra overnight, I am not exactly sure
how that got put in there, but I really don't recall
agreeing to tha t. And the fact that the children are
struggling with their homework and their school work, I
would prefer that that extra overnight be obsolete.
Q
Do you have any concerns about the vacation
schedule that's in the present order?
A Yes. Listening to my chiLdren they have
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1 trouble staying the two nights, They want to come home.
2 And I really don't think that it would be good for them to
3 stay for an entire waek without baing able to call me or
4 without being able to see me,
5 The past summer we had the week visit.
6 However, I picked up the children daily while he worked,
7 And that's what made it acceptable for them, that they were
8 able to see me.
9 0 Is contacting them while they are with Greg
10 a problem for you?
11 A Yes, I do not know where they stay. They
12 tell me they stay with their Aunt Michelle, but I do not
13 have a phone number or an address where they are. I have
14 had to -- I called his father at one point when I needed to
15 reach him. There 'flas a snowsto rm, And he would not gi va
16 me the number. He had to make phone calls. And then he
I" called me back.
18 0 Regarding calls to you, do you do anything
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to avoid Mt'. Cox's ca 11 s?
A No. T do not.
Q Do you have any type of call block on your
phone?
A No. I do not.
0 Do you have an anSINer ing machine at your
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A Yes, I do,
Q And have you received any messages from Mr,
Cox?
A No. I have not,
Q Can you tell me how you and your husband
discipline the children?
A We use the one-two-three magic, which was a
video we got from school about two and a half, three years
ago. And we have been using it ever since.
Q Are you aware of any other disciplinary'
techniques such as placing pepper in the children's mouths?
A When my husband and I first got together, he
disciplined his children that way. And I stressed my
concern. And I said that I didn't think that that was a
good way. At which time we got the video from school. We
called them and asked them about methods of discipline
regarding specifically ADD children, because my son has
ADHD. And his daughter has ADD. And it was a struggle for
us at first, combining the families. And they sent us the
video. And it has worked wonderfully.
Q And when was the last time that your husband
threatened to put pepper in the children's mouths?
A That was three years ago at least,
Q There has been some discussion about the
parties in this matter going to a joint parenting skills
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1 cross-examination, Let me just ask YOll about one thing,
2 because this is something t don't understand. That's all,
3 You said that you had a need for a ~- I think you said a
4 start time for Thanksgiving and Christmas?
5 THE WITNESS: Yes, There is none for us.
6 It is only listed for his.
7 THE COURT: I still don't understand. I
8 think the order presumes that the children would have been
9 at your hOllse on the day before Christmas and Thanksgiving
10 morning.
11 THE WITNESS: Right. But if it:. falls on a
12 weekend, I don't have a start time. Do you know what I
13 mean?
14 THE COURT: No. That's why I am asking you,
15 Thanksgiving never falls on a weekend. So we are talking
16 about Christmas then,
17 THE WITNESS: Okay.
18 THE COURT: Explain to me a scenario, and
19 then maybe I will understand.
20 THE WITNESS: If Christmas were to be on a
21 Saturday or a Sunday, he would have picked them lip Friday,
22 and I would not get my Christmas.
23 THE COURT: So you are talking about
24 Christmases that would coincide with his weekends of
25 visitation. That's when it would be a problem?
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THE WITNESS: Yes,
THE COURT: Okay. Now I understand,
MR, RUSSO: To clarify that as well, I
guess in paragraph 4 (a) (1) of the order we also have some
holidays that I guess could potentially fall in the same
scenario that don't have a beginning time.
THE COURT: Okay.
MR. RUSSO: Thank you.
THE COURT: ~lr. Kayer.
CROSS-EXAMINATION
BY MR. KAYER:
Q In your dIrect testimony you indicated that
one of your concerns is that Kayleigh carne home with dog
bites from a rottweiler?
A Yes.
Q Isn't it true that she has also been bitten
during this period of time by a dog at your home?
A She was scratched. And the dog was removed.
It was a stray that someone thought was ours. And we
attempted to find the owner. And after the scratch on her
back, we took the dog to the Humane Society rather than
find the home.
Q Well, didn't the father express his concern
about the scratch or bite that Kayleigh had, and initially
you refused to get rId of the dog?
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A No, That's not true.
o And ull:.i.mately thl~ reason you decldod to get
rid of the dog was because it bit you?
No.
Okay,
We got rid of the dog the week after that
A
Q
A
happened.
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Did the dog bite you?
It snapped at me, yes. Yes, it did,
Kayleigh has described the incident where
the dog snapped at you was when it saw that you were
dragging Kayleigh down the hallway, Is that true?
A No. It had gotten a small toy in its mouth,
and I tried to get it out.
o Now, you discussed a concern about a lack of
supervision. Are you basing that on what the children ar.e
telling you?
A And on what I see. They are covered with
bruises, and they are filthy when they come home.
o Okay.
A And also that they tell me that he is
usually not with them when they are outside, that no one is
with them,
o Now, there has only been one occasion where
Mr. Cox was significantly late, That's the hour and a half
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1 incident that disrupted the start of your vacation, is that
2 right?
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A
There were other late, fifteen, twenty
4 minutes, half hour,
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Q
Well, you testified earlier it was five or
6 ten minutes?
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A
Some of them. One I have -- it was the snow
8 weekend, and his mom called to say that they were late and
9 they were like thirty-five minutes late.
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Q
Well, you wouldn't want him
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A
They were stuck, They slid off the road and
12 were stuck in the snow is what my children said.
13
Q
You wouldn't want him driving at an unsafe
14 speed when the weather is bad, would you?
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A
No. But he wasn't driving. They 'were
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sitting there at his house
or at his sister's. And they
17 were supposedly waiting for a tow truck, but they managed
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18 to get out without the tow truck.
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Q
Now, the kids go to church every Sunday,
20 even though Sundays they are with their father, i~ that
21 right'!
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A
Every Sunday, yes.
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Q
Okay, And that was an agreement made at the
24 conciliation conference that led to this ,Tune order, is
25 that dght?
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A
I believe so, yes.
Q
That was a request you asked through the
3 father? You didn't want to see their church disrupted?
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6 right?
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A
Right.
Q
And he accommodated that request, is that
A
He also had agreed to that prior to the
8 conciliation because his family goes there. And I would
9 think he would want his children to be of the same religion
10 that his family is,
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Q
So it is not your testimony that he h~s ever
12 kept the kids from going to church, it is just you are
13 not --
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A
He is late for church every time, They miss
15 their prayer, They miss their devotion, And they miss the
16 story at the beginning,
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Q
Now, regarding your children's schooling,
18 you indicated that your daughter has had some episodes at
19 school this year that you are concerned about regarding her
20 behavior?
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Q
Yeah,
23 or her performance in school?
You also expressed concerns about her grades
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A
25 workincl more with her.
Yeah, Well, she is improving now. I am
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o So her grades are going Up?
A They arc just sort of leveling off. She was
doing very poorly the first -- I think it was the first
marking period. And the teacher discussed it with us. And
we are working with her. Some arc going up, some are.
o Now, with regard to Matthew and his learning
difficulties, you had mentioned something about a transfer
of Matthew of schools in your testimony?
A Yeah, He doesn't go to the same school as
my daughter does.
o When did you transfer him to a new school?
A We didn't. The school did,
o When did that transfer take place?
A Last year, It was in the summertime. They
told us that there was a problem at the end of last school
year, And they told U3 that we would know by the beginning
of the next school year where he would be.
o Did you complete the paperwork on that
transfer after this June 5th order was in effect?
A Yes, r did.
o Did you advise the father at anytime that
Matthew had transferred to a different school?
A At that time we weren't speaking.
Q Well, it was after this custody order was in
effect?
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AYes. That's what I am s~ying. He doesn't
speak to us anymore.
Q Did you attempt at anytime to notify the
father --
A I have been sending -- he gets copies of the
reports, The school that Matthew is in advised me not to
send him anything, that they were taking care of it,
Q Okay. Now, I am going to show you a
petition that you filed in this matter, and specificallY
direct your atte'ntion to paragraph 5-D. Could you read
what 5-0 ha~ to say?
A plaintiff has contacted the school
administration where the minor children are in school and
advised them that the defendant is psychOlogically
unstable. He further advised the school personnel that he
would be picking the children up from school. This is in
direct conflict with the terms of the existing order of
court.
Q Now, what basis did you have when you made
that allegation?
A They ci.llled me at work.
Q The school called you at work?
A Yes, they did.
Q v~ho from the school?
l\ Mr, Nasher.
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What's his role at the school?
Q
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lie is a guidance counselor.
A
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And it is your testimony that he told you
Q
4 that he was advised by the father that you were
5 psychologically unstable?
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No. That's not what he said, lie said that
A
7 there was possibly mental problems, and that I may not have
8 filled Matthew's paperwork out correctly, And later that
9 same day I got the exact same phone call from Mrs, Keener,
10 which is Kayleigh's counselor.
11
Q
So this statement here that you made in your
12 petition that you accused Mr. Cox of telling the school
13 that you were psychologically unstable is not a truthful
14 one, is it?
15
A
I don't know. That's what they told me over
16 the phone. Psychologically unstable -- that wasn't my
17 words. They said there was mental problems, that I
18 possibly had mental problems and hadn't filled the
19 paperwork out correctly.
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Q
Okay. Well, your filling the paperwork out
21 correctly has nothing to do with what the father told the
22 school?
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A
No. But that's what their issue was.
24 That's why they ~alled me.
25
Q
Okay, And theso individuals also advised
~o
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you that the father would be picking the children up from
school?
A They -- yeah. They said that there was
possibilities that he would be coming to pick them up. And
I said our order doesn't say that. And they advised me
that I did not have -- which at that time I didn't have a
copy of the newer order. And I told them that I would get
it to them as soon as I could.
Q Has the father ever picked the kids up from
school?
A No.
Q Has the father ever comprollllsed your ability
to work with the school administration?
A No. Other than that incident where they
called me and told me all those things.
Q But you never told him that Matthew
transferred?
A He got the -- he already knew. He gets all
the paperwork from the school. That was the entire
conversation with the guidance counselor. And they told me
to stay out of it and that they would send him all the
paperwork.
Q Now, you testified that you don't have any
call block installed on your phone?
A No. I do not.
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Q Do you have called 10?
A YOB, I do.
o Do you UHe caller [0 to determine the
identity or a person telephoning you before you pick up the
phone?
A Sometime:J, yeah. Most of the time.
o Have you ever chosen not to answer the phone
based on what your caller 10 indicated to you?
A Occasionally.
o Have you ever done that when Mr. Cox has
tried to call you?
A No, I haven't.
o You testified that he never asked for any
time on the children's birthdays?
A No.
o Do you recall receiving telephone calls on
the children's birthdays from Mr. Cox?
A No.
Q You testified that you have got concerns
about Mr. Cox transporting the children unsafely. Could
you be more specific?
A He was buckling them into the same sBat belt
in the front of his pickup.
Q Did Mr. Cox offer an explanation to you that
he had checked with a state trooper to see if this was
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1 acceptable?
2 A Yes. That's what he said. And so did we,
3 and the police told us that each child should be in a
4 separate seat belt.
5 0 Now, this day that there was an argument at
6 church you said Y0U put the kids in the van to keep them
7 away from the argument?
8 A Yes, I did.
9 0 Isn't it actually true that you put them in
10 the van so that the father couldn't take them?
11 A No. We offered to transport them for him.
12 And the argument broke out. And I took them away from the
13 argument, because they did not need to hear that.
14 0 One of the concerns you expressed about why
15 you want these visits reduced is the lack of telephone
16 contact between you and the kids when they are over at the
17 father's house, is that right?
18 A Not necessarily. If they would like to call
19 me and say good night to me, I think they should be allowed
20 to.
21 0 If we included a provi.sion in the order that
22 allowed the children to make those telephone calls, would
23 that address your concern?
24 A That would address some of it, but. there is
25 still the issue of church and the constant conflict and
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they are always late.
o How do you feel personally about the kids
visiting with the father? Do you think it is important?
A T. have some mixed feelings about that
because I had thought that he was going to try to make a
positive influence on them. And all they are learning is
just what I thought I didn't want them to learn. They are
learning violonce and anger.
o Now
A And they don't want to go.
o You and your husband don't talk kindly about
Mr. Cox in the kids' presence, do you?
A No, we don't. We don't talk about him at
all.
o Don't you insult him in front of the kids?
A No. We do not.
Q Do you deny saying to the kids that it makes
no sense to send written instructions to daddy Greg because
he can't read them anyway?
A No.
Q Do you remember saying that to them?
A No. Because I have sent him written
instructions.
o And has he complied with those instructions?
A I don't know. [am not there. As far as I
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know.
Q Now, you tried to terminate Mr. Cox's
paternal rights earlier?
A Yes.
Q Would it be a fair statement that it is your
preference that his rights should still be terminated
today, that you would prefer to see an adoption go through?
A I would like to see that. But I want what's
best for my children. However, [ would prefer to have the
visits be with grandma rather than him.
Q Your children call your husband dad and have
them call him daddy Greg, is that right?
A No. They call him daddy.
Q You have not instructed them to call him
daddy Greg?
A No. That was something they started in
Audrey's office, because they were trying to differentiate
the two. But now that they see him it is daddy and daddy,
daddy herB and daddy there.
MR. KAYER: I have nothing further.
THE COURT: I am trying to get a handle on
this holiday thing. The paragraph on the holiday says that
the visits are from 1: 00 p.m. to 7 :00, so I think it is
understood that if you get custody, it would begin at 1:00
p.m. On Christmas may I assume that it would be your
25
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1 preference to have them from Christmas Eve at 6:00 p.m.
2 until the next day when he picks them up? You haven't told
3 me what time you were going to suggest.
4
THE WITNESS: When we were at the
5 conciliation, I think we attempted to break it up from 8:00
6 to 2:00 Christmas Day, and then alternate years. But he
7 was unhappy wi th tha t. So I don't know. I don't know what
8 the answer is.
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THE COURT: I . will sort it out. What time
,
does church start?
THE WITNESS: 9: 15.
THE COURT: So if the children were there at
five or ten minutes after 9:00, they would be on time?
THE WITNESS: Yes.
THE COURT: All right, thank you. Anything
else?
MR. RUSSO: No, sir. Nothing.
THE COURT:
Thank you. You can step down.
MR. RUSSO:
Mark Birgensmith.
20 Whereupon, MARK BIRGENSMITH, having been
21 duly sworn, testified as follows:
22 DIRECT E:XAMINATION
23 BY MR. RUSSO:
24
Q
Can you state your name and your
25 relationship to the defendant in this matter?
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1 A Mark 8irgensmith. I am her husband.
2 Q I am going to try and limit YOl\r testimony,
3 so let me ask you about any problems that you have
4 encountered regarding the Sunday school visits?
5
A
Whenever we had a concern about them being
6 transported safely, that incident Kim was talking about in
7 church, I walked up to Greg, and [ had asked him, you know,
8 how he was transporting the kids. And he said he was
9 putting them in the same seat belt. And I said that that
10 was unsafe. And if he needed us to transport them to
11 wherever they needed to go, we would be more than happy to
12. do that. And he got upset. And I told him it was a
13 concern of my wife's and, you know, I wanted to try to
14 resolve the problem. And I told him that we would, you
15 know, take the kids wherever they needed to go. And he
16 insisted that we were keeping him from his children.
17 And at that time Kim started to take the
18 kids to the van. And he grabbed Matthew by his arm. And I
19 had told him, I said, Gan you pl"ase let go of his arm, you
20 are hurting him. And he did let go. And then I continued
21 to try to discuss it with him, to talk with him about it.
22 And he was really angry. He threatened to pound me into
23 the ground and scrape up what was left. And at that time
24 our pastor come over, and he tried to help us with the
25 problem.
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Q So it would be safa to say you don't have a
great level of cownunication with Mr. Cox?
A I have no problems talking with him and
discussing things with him, but [ don't think he can talk
to me. You know, I don't knbw if he hates me or doesn't
like me. But I have no problems. I am raising his kids,
and I have no reason to hate him.
Q Can you briefly tell me if you have made any
observations about the children since these overnight
visits have started?
A We have had problems with Kayleigh and her
temper. She is a very loving kid. She is very
temperamental now. She has a lot of problems with her mom
with, you know, listening. And she gets very defensive
with her. She argues a lot with her. And I talk with her.
She sor~ of -- she understands me. She listens to me
better. You know, r can sit down and talk with her and try
to help her through her problems. But she is having a
tough time. She has had a tough time in school, ber temper
in school. She didn't want to learn. She just -- like I
didn't care. She had that I didn't care attitude now. And
before she loved school. She had a great time in
kindergarten. She had a little bit of problems the first
part of the year. But, you know, r had a talk with her.
And she is doing much better now.
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Q Hegarding any type of derogatory comments
towards Mr. Cox in the household, does that occur?
A No. We don't talk bad about him at all. . If
anything, I tell the kids that they need to see their
father. They need to have that bond. I mean, I have been
a single father too for several years, I understand. He
needs some time with his kids. And I would never talk bad
about him to these kids.
Q The final question to you. Do you recall
receiving a telephone call at your home on either of the
children's birthdays?
A No.
MH. HUSSO: Nothing further.
MR. KAYER: I have no quest.ions.
THE COURT: Thank you, sir.
THE WITNESS: Thank you.
MR. RUSSO: Your Honor, briefly, Paster Greg
Beech.
Whereupon, PASTOR GREG BEECH, having been
duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. RUSSO:
Q Can you state your name and .identify your
relationship with the parties here?
A [am Pastor Greg Beech. Pastor at the
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Newville Church of the Brethren whore Mark and Kim go to
church. I had no association with Mr. Cox until the
confrontation outside our church back in September.
Q Were you present in the courtroom when Mr.
Birgensmith and Mrs. 8irgensmith described the events of
that day?
A Yes, I was.
Q And to the best of your knowledge, were they
accurate?
A That was fairly accurate, yes.
Q Is thore anything you want to add about that
event?
A Only that I was trying to attempt to
find a compromise, to get the confrontation down to a point
where there wouldn't be any injuries occur. That included
talking with Kim, talking with Mr. Cox. I even called thr"
State Police at one point to determine about the seat belt
issue. The policeman told me that he would recommend that
each of the children WQuld be placed in a separate seat
belt, and that the female companion was not required to
wear a seat belt. And that that's what he would recommend.
When I went out and suggested that, Mr. Cox still found
that unacceptable. It wasn't until Mrs. Walker, who lives
across the street, suggested that she would transport the
children. And that was acceptable to Mrs. Birgensmith and
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to Mr. Cox at the time.
And so thcn thc children were givcn to him
on that principle, that she wOllld transport them to hi:>
home. And that's basically all I have, except that
eventually after everything cleared out the children and
Mr. Cox and his wife left in the truck.
Q Was anything said to you by Mr. Cox that you
recall?
A One time during the conversation Mark was
saying he wished they could make this exchange without
there being so much tension. And he made the comment that
essentially that he wanted the children to have a
relationship with Mr. Cox, but he wished for them to stay
out of their life, meaning he and his wife's personal
relationship. And Mr. Cox made the statement, well, once
his kids are eighteen I will be out of your life.
MR. RUSSO: Nothing further.
CROSS-EXAMINATICN
BY MR. KAYER:
Q Did you hear any threats between either Mr.
Birgensmith or Mr. Cox?
A I had heard that he was going to beat Mark
into a pulp at one point. And I did hear the comment about
he was going to beat hl~ into the ground. Those are the
only two [heard. Otherwise, [ was shutt ling back and
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TilE (OURT: We call them parishioners. I
don't know what you call them.
THE WITNESS: Right.
THE COURT: So you have had occasion to see
other incidents since then I assume of pick-up?
THE WITNESS: No, I haven't.
THE COURT: You have not?
THE WITNESS: No.
THE COURT: Why is that?
THE WITNESS: I am usually inside the
building. Our doors are such a way that it is kind of
the parking lot is around the corner of the church.
THE COURT: So you don't know whether there
has been any incident or what things have been like since
then?
THE: WITNESS: No. I haven't.
THE COURT: Thank you very much.
MR. RUSSO: Ms. Aarhus.
THE COURT: Why don't we take a brief
recess. And I think we will go ahead and set up in
chambers. r don't believe we have the capability yet for a
conference call here in the courtroom. What we will do is
we will let the parties sit in the back of my office. And
we will have counsel sit up at my desk. And we will have
the stenographer there.
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BY THE COURT:
Q
A
Q
before?
A
Q
1
,--
(Whereupon, a recess was taken.)
M''l'E:R HECESS
(Whereupon, the following proceedings
occur rod in chambers.)
(Whereupon, the testimony of Audrey
Aarhus was taken via telephone.)
You are Audrey Aarhus?
Yes. Hi, Judge Hess.
You have been I guess in my courtroom
I have.
I understand you are prepared to offer some
testimony in the Cox and Birgensmith matter?
A Yes. I had said they could call me if they
needed to talk to me.
Q Are you okay now as we speak? Have I caught
you at an okay time?
A It didn't occur to me to bring my records
with me, but I will do the best as I can from my memory.
Q We will handle it that way. I have counsel
in my office. It is a little easier than doing it in the
courtroom. Their clients are here together with my
stenographer. r will briefly administer the oath.
(Whereupon, the oath was administered.)
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THE COURT: Mr. Russo will address you
first. lie represents Ms. Birgonsmith.
DIRECT EXAMINATION
BY MR. RUSSO:
Q Good morning, Ms. Aarhus.
A Good morning.
Q Have you ever testified as an expert before
in a matter?
A Yes, I have.
Q In what area?
A In the area actually I am a clinical
social worker, which means that I am Board Certified to
counsel in matters of individual, marriage and family.
MR. RUSSO: We would like to offer her as an
expert in those categories.
MR. KAYER: I villl not object to that.
THE COURT: There has been no objection to
your qualification, so we are going to proceed to the heart
of the matter.
BY MR. RUSSO:
Q Ms. Aarhus, you have had several sessions
with the subject children, Kayleigh and Matthew, correct?
A Yes, 1 have.
Q And you last testified at a termination of
parental rights hearing, is that correct?
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A That's correct.
Q Since that time have you had the opportunity
to visit with these children again?
A Yes, I have.
Q
And how frequently? [know you don't have
your notes?
A Well, I have seen the family as a family in
various constellations probably every other week from the
time that I testified the last time. I see the children
alone sometimes if there are issues -- and that means all
four of the children, and see them together. But the last
two sessions that I wrote about in the letter that I sent
for your consideration, one was in December and one was the
beginning let's see, sometime I think the beginning of
February. I had actually talked to the children about how
things were going with dad. We talked about it before but
not the depth that we talked acout it in those two
sessions.
Q At this point have you -- without telling me
what they are, have you made any conclusions or
recommendations about this situa"ion with these children?
A Yes, I have. And I don't know -- did the
judge and the other counsel have a chance to read the
material that I gave you on Tuesday?
Q Counsel and I talked about it and agreed we
36
"1
1 would prefer your testimony.
:.! A Oka y. Bas ica II ywha t the bot tom line here
3 is I have made several n,commendatiorw. The one
4 recomJnendat ion was that the ch Lldren -- the len<Jth of
5 children's visits be looked at. Matthew is very opposed to
6 visiting at all. Kilyleigh is not ilt all opposed to
7 visiting, but she talks more in terJns of visiting with
8 grandmother and the cousins. And one of the things that
9 did come out in the two sessions that they really spend
10 very little time with dad while they are there. And I had
11 recommended that because of Matthew's tremendous resistance
12 and feelings and his unwillingness, and they are both at
13 different places in their feelings, that consideration be
14 given to perhaps having a one day, one night visit with
15 father, really being the center of the visits with the
16 children. I feel that they need that time with him.
17 I think it is wonderful that grandmother and
18 cousins are involved, but I am wondering what real time
19 they are spending with father. I have recommended that..
20 And another recommendati.on that I made was that it is very
21 important for these children to resolve issues that
22 happened either at mother's house or at father's house in
23 the home where they happened. And one of the things that
24 came out was that there were some things that went en that
25 -- one incident particularly it was Kayleigh, that she
37
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1 really was very unhappy with an i.IlLer-dcL ion between herse l f
2 and her father. I said did you tell your dadoy how you
3 feel, and she said no. Sho didn't [eel that she could talk
4 to him. And I saId, well, can you toll your: grandmother
5 how you feel. Alld she said, well, her: daddy wouldn't like
6 her to do that. And 1 feel that it is really important
7 that communication be better between dad and the chIldren
8 around issues of differences they might have.
9 And I even suggested in my recommendation
10 that dad might want to look at a counselor of his own,
11 because I know a lot of times when issues come up in the
12 family in mother's home they are processed in the office.
13 I think that it isn't good for issues to be coming up in
14 either to be dragged into the other home. If that makes
15 any sense. So those are some of the things that I thought
16 might be looked at.
17 The length of the visits and also dad might
18 want to look at getting a counselor or someolle who will sit
19 down with him and the children when the children have
20 issues, so they can build that kind of dialogue and rapport
21 that's important so those issues aren't brought back and
22 told to mother.
23 Q Ono of the things that's been discussed
24 among the parties is the possibility of some type of joint
25 parenting skills counseling. Do you have any feelings
]8
1 regarding that?
2 A I think that that would be a very good idea.
3 And I know that Mr. Cox might not particularly want me to
4 be -- to facilitate that because I kno\~ that he, you know,
5 has feelings about my testifying in the previous trial.
6 But I think that any good counselor sitting down and
7 working through that would be fine.
S Q Do you think it at all important that the
9 judge meet with Matthew at all to discup~ his concerns?
10 A If the judge is willing to do that, I think
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16 can't just say [ am not going to do it. But I do think
17 'that the judge needs to if the judge feels he needs to
18 hear from Matthew, I think that would be good, because
19 Matthew is very verbal about it. And he said that the last
20 time he talked to the judge Matthew thought that this was
21 going to be a one time visit. And said once and it is
22 over. And he is really having a problem with the
23 continuing visits. And I think maybe if he heard the judge
24 say this is the way it is, it would help him understand.
25 ~J[-{. RUSoiO: Thank you. I have no other
that it would be good. One of the things that I have tri,ed
to say to Matthew ilnd have him understand is that both
mother and father are involved in his life. And it is
really important for him to, you know, to work around those
issues with dad. It is hard for him to understand t.hat he
39
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1 questions.
2 THE COURT: Beforo I give you over to
3 counsel, I am looking at a letter. It appears to be a
4 report that you generat'ld on f'ebruary 1.5th, 1999.
5 THE WITNESS: Right.
6 THE COURT: That was the letter that you
7 just had reference to in your testimony a moment ago?
8 THE WITNESS: Right.
9 THf.: COURT: As I g lance through it, it
10 appears to be a helpful summary of your findings. Both
11 counsel have had the opportunity --
12 MR. [{AYER: No. I have not had a chance to
13 see that.
14 MR. RUSSO: We discussed it but did not
15 produce it.
16 THE COURT: The reports are customarily
17 entered as long as there is an opportunity to cross-examine
18 with respect to them. W"ll, okay. I don't know if we can
19 take the time now to do that. If he had had a chance to
20 see it before, I would have given him the chance to
21 cross-examine on it now and admit it into evidence.
22 THE WITNESS: I think basically what I said
23 is what I put in that report at the end on recommendations.
24 THE COURT: Okay.
25 THE: WIna-:SS: ~ly bottom line concern 1s that
40
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1 the children's best interests be served always. We have a
2 chanco to look at this right now because I think that it is
3 helpful to look at what the children need and then to, you
4 know, work with that. And I know that Mr. Cox wants to do
5 that. And r know that the Birgensmiths want to do that.
6 So, you know, I am hopeful that my suggestions and
7 recommendations would be helpful in making things a little
8 smoother for everybody.
9 THE COURT: Go ahead.
10 CROSS-EXAMINATION
11 BY MR. KAYER:
12 Q Can you describe to me to the best of your
13 knowledge what the basis is for Matthew's vocal resistance
14 to visits?
15 A Matthew is a very sensitive child. And I
16 think that this has been very stressful for him, to be
17 introduced to his father, you know, after this period of
18 time. And I think that it is just that he doesn't feel
19 comfortable with dad. And that's understandable because
20 this situation is relatively new. And I feel that he feels
21 he can't talk to dad. And Kayleigh feels she can't talk to
22 dad. Both of thew said they don't feel they know their dad
23 real well. I recommended more time be spent with dad.
24 They indicated much of the visits are spent with
25 grandmother and cousins. Dad i.s there some of the time,
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but he is also not there some of the time. His resistance
is he doesn't feel very comfortable at this time with dad.
Q I am somewhat confused on your
recommendation. I hear YOLl sayinCJ on the one hand that it
is important to emphasize contact between father and
children, and yet your recommendation is to cut down his
time with the children, essentially in half?
A Well, yes, and I understand your point. But
what I was saying there, if you had had a chance to read
it, because of the extreme difference of opinion here with
the children, Matthew saying I don't want to go at all, and
Kayleigh saying I will go and I will play games with my
grandma and my cousins.
I am looking how can we best facilitate
things. I think that it is important for them to spend
most of the time with dad. But I also know that Matthew
finds the couple days too long to be away from home, what
he considers home. And my feeling was that maybe a shorter
time to accommodate Matthew's feelings but also more time
with dad when dad is there. Now, I can't speak to how much
time dad is spending because, you know, children are not a
hundred percent reliable in their reporting. But both of
them independently said Matthew said he doesn't know his
dad. That's not what he said. He knows his dad but his
dad doesn't know him. And Kayleigh said that she doesn't
42
1 spend much time with her dad, that a lot of the time he is
2 gone. So my feelinq was a shorter period of time with a
3 lot marc conccntration with dad mlght accommodate
4 everybody's best int.ercsts.
5 Q Now, do you recall at the termination
6 hearing previously you indicated at that time that Matthew
7 ,craved contact with his father?
8 A I think Matthew did Matthew wanted to
9 know that his father cared about him.
10 Q And at that time you also stressed that if
11 there was going to be a relationship between father and
12 children, that it should be somethi.ng constant so that
13 there wouldn't be, you know, a long period of interruption
14 of contact. Do you recall that?
15 A Absolutely.
16 Q Is there anything that you have heard in
17 your counseling of the children or the family to indicate
18 that Mr. Cox has not regularly been visiting with the
19 children?
20 A Only that they are saying that when they go
21 there he is not there. He apparently is not there a lot of
22 the time. I don't know that, but they both complained that
23 he is not around that much.
24 Q OkdY. Now, you also indicated in YOllr
25 recommendations here that. it. I.s not good for issues from
43
1 Matthew has feelings about that. But how that can best be
2 done, I don't know except to say that if they are going to
3 be there for the two full days they need to have extensive
4 contact with father. Rut I think one of the things that
5 needs to happen here is that there be better communication,
6 because neither child feeiH that when there are some
7 problems that they can go to dad. That's the only way that
8 we are going to be able to be sure that you don't have the
9 cross-over home to home.
10 You are going to have some of that anyway,
11 but it is not good for the children not to feel that there
12 is someone they can go to in each home who can resolve any
13 issues that they might have, either with them or with the
14 other parent. So I don't know that it would be
15 tremendously good to have the two days until some of this
16 is resolved. I would say maybe one day of some counseling
17 and some work on communication to, you know, facilitate
18 communication between dad and children and then go and look
19 at it again to see if two days is more realistic at that
20 point. But I think it is a long time when the children
21 don't feel that they can express what they are feeling and
22 get results at that moment at that time.
23 Q Now, you indicated that you also are
24 counseling the whole family essentially in stages, is that
25 right?
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1 A Yes.
2 Q In your convBrsations with Mrs. Birgensmith
3 have you been able to determine if she has shown any
4 ambivalence about the father exercising his custody rights?
5 A I think that probably there is some
6 ambivalence on everybody's part here. This has been a very
7 difficult time for everyone. And I think it is hard when
8 parents divorce and go on with their lives. And there are
9
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14 you in the presence of the children?
15 A I can't remember of anything specific --
16 that specific in the experience of the children. That's
17 why I see them separately. You know, I might see the
18 parents together. I might see Mark and Kim together. I
19 might see them with or without the children. But usually
20 when we have discussions of concerns the c~ildren arB
21 excluded.
22 Q Okay. Can you determine if any of the
23 ambivalence that mother feels about the custodial situation
24 has somehow been transferred by her to the children?
25 A r. imagine that it has been. And, you know,
feelings. And while we don't like to think that they
affect children, I know that they do. And I think that
probably on both sides there are a lot of feelings that may
creep in that we would wi.sh would not.
Q Has she ever expJ:'essed that ambivalence to
46
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1 I think that we do that sometimes not knowing that we are
2 doing it. I can't say specLfically It has. But I think
3 even a shrug or a tone of voice can transmit messages to
4 ch.lldren about their other parent. I find that in my work
5 with parents this happens a lot, both sides.
6
Q
Do you think that has impacted Kayleigh and
7 Matthew's perceptions of 'their father in what we have
8 reported to you?
9
A
I don't believe that it has. I talked to
10 them specifically, about, you know, how they feel about
11 mom's home, how they feel about dad's home. And, no, I
12 don't believe so. I think Matthew's resistance is
13 Matthew's.
14
15
16 BY THE COURT:
MR. KA YER: Okay. I have nothing further.
MR. RUSSO: I have no redir.ect.
17
Q
Judge Hess again. You say you do foresee,
18 Ms. Aarhus, eventually in this plana restoration of a two
19 day pattern?
20
A
I think that hopefully as the children get
21 to know their father better. They would want to spend more,
22 time with him.
23
Q
On that past point where you said it was
24 Matthew assuming that mom has insisted that there be
25 compliance with the court order, and that's a good thing.
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A I think that if it is laid out well. And if
they are going to have a chance to spend, you know, a lot
of time, I don't mean all the time. They love to spend
time with their grandmother and cousins. If it is a well
laid out period of time. And, you know, if dad is going to
be very involved. I think that that would be great. I
think that it might be nice though prior to that to have
them get some help in thei r commun ications. Some idea how
they are going to handle it when differences come up.
MR. RUSSO: Thank you.
RECROSS EXAMINATION
BY MR. KAYER:
Q This is Mr. Kayer again. Would there be any
merit again crafting an order that would have Matthew be
returned to the mother on Sunday morning when the parties
go to church and have Kayleigh then spend the rest of
Sunday with the father and then be returned at a separate
time"?
A That might work. That would be something
that they can go with. As I said, Kayleigh is much less
adamant about not going there than Matthew is.
Q Would that send any right or wrong messages
to either of these kid3?
A Well, J, don't know that Kayleigh would look
at it as right or wrong. I think Matthew needs to
49
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1 understclrld the reason behind that.
2
THE COURT: He would have to know why __ he
3 should know why it is being done and so forth.
4
THE WITNESS: And I don't think that that
5 would hurt. I think it would give dad a chance to have
6 some time with Kayleigh himself. And that's always nice
7 too when we can spend individual time with the children.
8
,
THE COURT: Thank you. Thank you very much
9 for making yourself available. And have a very good day.
10
THE WITNESS: Thank you.
11
THE COURT: Bye-bye.
THE WITNESS: Bye-bye.
12
13
THE COURT:
Okay. We can reconvene in the
14 courtroom.
15 (Whereupon, the following proceedings
16 OCcurred in open court.)
17
THE COURT: Mr. Kayer.
18
MR. KAYER: We will call Greg Cox to the
19 stand.
20 Whereupon, GREGORY COX, having been duly
21
22 DIRECT EXAMINATION
sworn, testified as follows:
23 BY MR. KAYER:
24
Q
Can you state your name for the record,
25 please?
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A Greg Cox.
Q Where do you live?
A 441 North College Street.
Q And who lives with you?
A My father daDS.
Q Okay. Now, under the current order how much
time are you supposed to be with the children during the
school year?
THE COURT:
I am familiar with the current
order.
MR. KAYER: Okay. Very good.
BY MR. KAYER:
Q How much time are you actually utilizing
under the current order? What's your visitation been like?
A Well, I pick up the children. I usually try
to make sure there is somebody with me. And I take them
over to my sister's place, because that's where my mom is,
because a couple accusations that we weren't bathing the
children. So I make sure now there is always somebody with
me and somebody around me the entire time the children are
around so they can verify or back up anything that does go
on or something that does happen.
Q Okay. Has there ever been a weekend that
was supposed to be yours that you didn't use?
A The one time Cor the 4th of July, I didn't
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Q That was tlw day Ln question that she
complail1ed about them beinq an hour ilnd il half late?
A Oh, yes. And she called the cops on me and
everything else. When [ (jut to my dad's house, there w,~s a
Carlisle police officer sittin(j there waiting for me on my
doorstep wanting to know why [ had the children out past
his time and everythinq e1'lc. And I asked him what the
problem was. He says, well, she called hysterically and
said that apparently that you were tryin(j to run off with
the children. And he wanted to find out what was going on.
And when I showed him my court -- that I was supposed to
have the children extra time, then he went ahead and left.
Q Did you try calling her that day when it
became apparent that you were goinq to be running late?
A Yes, I did. But I got no answer.
Q Now. have you encountered difficulties with
Kim regarding getting the children?
A I get off work at exactly 5:00 on Fridays.
And my employer knows that I have a court order to pick up
the children on every other weekend. So he has no problem
with letting me go on time. And he makes sure that I am
out the door at 5:00.
am on the highway at 5:00 -- I am
on the highway, and I am sitting down the street from her
house. I pull up down the street from her house. There is
a little pull-off. And I sit there exactly until it is
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like five minutes to go. And then at 6:00 I am there in
her driveway. And nine out of ten times I sit and wait an
extra ten minutes for her to send them out the door.
Q Okay. There have been concerns expressed by
the mother about safely transporting the kids?
A I did call the State Police officer. And I
asked him. And his words were straight up. He told me
that if the children were under a hundred pounds, the two
together, and if they fit nicely in the seat belt, and
neither one of them was cramped or pushing on the other
one, then it would be okay in a pickup truck to have four
people in the cab of a pickup truck. And $0 that's what I
did. And, you know, I had no problems with it until the
one day Kim come out of the church. And I was holding the
children's hands, and she come up and took them from me,
you know. And that's when all that started. That's when
the argument and the fighting began on that.
I mean, I was holding Kayleigh and Matt's
hand when she come up and pulled them from me. And Mark
started yelling at me you are hurting them. When I was
already standing there and holding them and she was
dragging them up over the hi ll. So I left go. I was not
going to have a tug of war with my child in the middle of
it.
Q Sure. And once sh~ took the kids from your
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1 hands, did she take the kids into the van then?
2 ^ She started taking them quickly and yelling
3 at them like I was some ax murderer. Quick, run to the
4 van. Quick, run to the van. Ancl that's when she was
5 running the children up to the van. And Mark kept stepping
6 in between me and her and the children. That's when I
7 threatened him. I did tell him straight out that I would
8 pound him into the ground if he did not get out of my way
9 between me and my children. But he kept jumping in between
10 me and the kids.
11 Q Now, what happened next at that point?
12 A Well, that's when my aunt came over and
13 she -- she was standing there. And she was trying to
14 resolve what was going on. There was also another lady
15 there also from inside the church. She was trying to help
16 the problem. Right. And finally the preacher came out,
17 and he talked to both of us and stuff. But my aunt had
18 twice offered to tak~ the children home. And they refused.
19 Q Is that ultimately what happened? It was
20 your aunt who took the kids home that day?
21 A No. I ended up taking them home, because
22 the police officer said it was just fine for them to go
23 ahead and sit in there. And that's what we did -- we did
24 what the second police officer said to do, put them both in
25 separate seat belt5 to resolve the issue, and just let my
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1 fiance sit wherever she pleased.
2
Q
Now, since that incident occurred, are you
3 still driving the pickup truck?
4
A
No. No. I now use my girlfriend's truck.
5
She has a Chevy blazer.
It has got a seat belt for
6 everybody.
7
Q
Okay. Now, have you encountered other
8 difficulties with Kim interfering with your custody rights?
9
A
Well, she a couple times -- well, like she
10
told me she
like the bit with the dog incident. Well, I
11 took the kids over to a friend of mine's house. He has a
12 puppy rottweiler. It was six months old. It is a puppy.
13 It come down the driveway. They have a real long driveway
14 that's off the main road to begin with. And the kids were
15 riding bikes up and down the hill with his children. And
16 the puppy, you know how a puppy is, chases after people and
17 stuff, you know, he was playing with the kids, you know.
18 Kayleigh never once indicated that it hurt her or that it
19 attacked her or anything.
20 Bu t you know how a puppy do"s, it grabs
21 ahold of your clothing and stuff. Well, the one time she
22 yelled about it. I guess she claimed the dog got her, you
23 know. But I went clown and looked and checked. There was
24 no mdrks on my child.
25
Q
Was she playing in your presence at that
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time?
A Yas. I WQS stQnding at the top of the hill.
The hill is approximately five feet tail. And it rolls
down onto a nice long gravel driveway. I would say the
gravel driveway is over two hundred feet to get to the
first main road.
Q Now, at anytJ,me during this incident with
the rottweiler, was there a time that you didn't supervise
Kayleigh?
A No. Anytime that I wasn't there my mother
is there or my sister is there. And I can't think of any
time.
Q Have the children talked to you about
conversations they have with their mother after your
visits?
A Yes. They tell me straiyht out that after
-- when I drop them off for church, that every morning they
have to go quickly and directly into the kitchen. And this
is where they stand and talk to morruny about what they did
with me the entire weekend before she lets them back out.
That's how she also knew that, you know, that they were in
one seat belt only that day.
Q Okay. Have they reported to you that she
criticizes you in their presence?
A
Yes. They tell me little things that I
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with me and not daddy Greg. And I am always -- I consider
it an insult to be called number two.
Q Have they indicated to you why they call
you daddy Greg?
A They said tnat Audrey Aarhus and mommy and
daddy has said that this is how it is to be said. That I
am daddy Greg. And that's what I am to be called.
Q Okay. How did YOll find out that Matthew
changed schools this past year?
A My mother read it in the newspaper, and
started to inquire what happened and why. So she called
the school board -- or not the school board, the school
that Matthew was supposed to have gone to, and they told
her that she should call the other school counselor. They
gave her name and all this stuff. Well, the woman refused
to talk to her without a letter from me, saying, you know.
So mom wrote up the letter. I read the letter, signed the
letter. And then we sent it in. And then the woman went
ahead and sent us some information and stuff back.
Q Is there any reason why you weren't making
those calls, you had your mom do it?
A Because" work between the hours of 8:00 in
the morning until 5:00 at night. And where I work we are
not allowed personal phone calls outwards. So if my mother
makes the phone calls and stuff for me, and I sign whatever
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paperwork has to be signed. But I read over or she reads
to me exactly what is being said.
Q Did Kim tell you at anytime that Matthew had
transferred schools?
F, No. She doesn't tell LIS anything. I didn't
even get my first report card sent to me until the other
day when the school finally sent it to us. And the school
did tell us outright, and Kim claimed twice to them,
expressed to them, that she was taking care of all the
report cards. And that she was to hand it to me. And we
never got anything. I mean, the counselor straight up said
that this is what she was telling them, that she was taking
care of it all.
Q Now, Kim also testified she is concerned
about a lot of bumps, bruises and scrapes that seem to
happen at your place to the kids.
A I have no problem' with the kids playing. If
they want to play, I don't stop them from playing. As far
as riding bikes and stuff, I taught Kayleigh lately how to
ride a two wheel bike, because the grandmother just bought
them bikes. I bought them roller blades. And we have been
taking them every Sunday after church to skating. And as
Ear as bumps and bruises goes and stuff like that, I
believe most of that comes from being a child.
But the one t1me when all this did start was
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I was helping my daughter take a bath. Because she claims
2 she did not know how to. so, you know, I was helping her
3 out. And since then -- sine!.? I was accLlsed, I have not
4
given my children a bath.
r let my mother do it for me,
5
for the simple fact that, you know, I mean
I guess the
6 only thing she can aCCUse her of would be molesting Matthew
7 then I guess. I ha ve no idea.
8 Q What type of activities do you do with the
9 children 7
10
A
Like I said, I taught Kayleigh lately how to
11 ride a two wheel bike. When the snows came, I went out and
12 bought the kids metal sleds and stuff. And we have been
13 Sledding. Every Sunday we take the children out to the
14 skating rink after church. This is pretty much a constant
15 ritual. You know, as far as the Saturdays go, when I __
16 start off, Friday when I pick them up, it is right after I
17 get off work. And the kids are Coming out. Apparently
18 they always just get done eating before I pick them up.
19 And so I take them over to my sister's house from there.
20 That's where the kids normally, nine out of
21 ten times, we break out card games. Or they go in Daniel's
22 room, which is the nephew. And they play video games,
23 which I am not real happy about, but I figure it is a fad,
24 everYbody is doing it. My kids claim they have never done
25 that type of stuff. They don't have that type of stuff.
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But I figure it il; a fad, YOll know, if they want to learn
it, they can learn it. But: 1.t: is P[(;tty much a game.
Then conw Saturday we do just about anything
the kids want to do. You know, we play. Like I said,
there is a big, I mean, it is a huge yard. But the kids
play outside or whatever. Sometimes we sit in there ~nd
watch new movies and stuff. You know, but there is always
at least two or three parents or adults there at the house.
Q Where do the kids spend overnight?
A They spend their overnights now at my
sister's place since I was accused of molesting Kayleigh.
I figure I don't want to be off at anytime where, you know,
it was just one parent.
Q Do they have adequate sleeping facilities
there?
A Yes. My sister's kids, she has two children
of her own, a boy and a girl. And there are just a couple
years difference in the ages. So Kayleigh sleeps with her
daughter in her room. And Matthew sleeps with her son in
his room. Now, they each have their own separate cot type
beds that they sleep on.
Q Do you put the kids to bed at night?
A Yes, I do. I kiss them good night each
night. And I make sure there is somebody in the room also
whenever I do that.
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3 A Th~t's the only thing I don't do, because
4 there is not enough space for us. But I could sleep on the
5 floor if r have to or on the couch.
6 Q Are you the~e in the morning?
7 A I am there in the morning when they get up
8 in the mornings. I make sure that I show ~p on time.
9 Q Okay. What type of medication do either of
10 the kids have to take?
11 A Matthew is on learning disorder medication.
12 And, therefore, for a while she complained that I was not
13 giving the child~en the medicine and stuff. So I made sure
14 every time Matthew shows up I take the medicine out of his
15 bag. I hand it to my mother, and she gives it to him in
16 the morning and in the afternoon just like -- well, like
17 Kim s~ys it is supposed to be done. The doctor claims he
18 is supposed to be given the medication three times a day.
19 Kim only sends medication for two times a day. I give the
20 children exactly what -- we give the children exactly what
21 they are supposed to have.
22 Q Has there ever been a time where you did not
23 comply with the mother's wi,shes about medication?
24 A ~Io. Medication is always given. 8ven
Q
A~e you staying overnight at your sister's
25 though I am not too sure about giving the medication, I
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always did give the medic~~ion. Thero is no timo ever that
the meJication bottle went back full. [t always went back
there. A few timos she claims that we don't send the
medicine bottle back. If we don't send it back, how come
when she sends the next bottle it is still the same bottle
that's marked?
Q Now, on Saturdays, do those visits that take
place at your sister's home, or do the visits take place
anywhere else?
A No. They take place at my sister's house.
Q Are you staying at the house typically on
those Saturdays?
A Yes.
Q Has there ever been occasion when you left
the home and left someone else to watch the kids?
A I left my mother and my sister and her
husband, because my girlfriend's car broke down for like an
hour or two. I had to go back and pick her up. She was
broke down. So I went down and picked her up.
Q That's the only occasion you have ever left
the children behind?
A Pretty much, yes.
Q Okay. Now, Sunday mornings, you have agreed
to get the kids to church on time, is that right?
A Well, [ agreed to church, but I didn't
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that GounsQling might be a good idea?
A [would say separate counseling other than
her. Because when I talked to the school counselor, they
did not think too highly of her. They did not have a good
rapport.
Q If there wer.e arrangements made to have some
type of fam[ly counseling, using someone besides Ms.
Aarhus, would you agree to that?
A I have requested someone else other than
Mrs. Aarhus and was told no. But I would definitely like
counseling with someone else.
Q Who told you no?
A Kim told me that this is her place, and
they were staying. This is her family doctor or whatever.
Q Do you perceive a need to change this
custody order?
A I do not think it should be changed. I
don't want a shorter time. I just want less of the
cons~ant bickering and the calls where my children dre
coming to me and telling me we are not allowed to do this.
Mommy says we are not allowed to do this, or we are not
allowed to talk this way. That's all I ever get. So I
don't know where my limits are. You know, I just don't
know what to be able to say to the children without
Offending them one way or the other, because it offends
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1 their mother.
2 MR. KAYER: I have nothing further.
J CROSS-EXAMINATION
4 BY MR. RUSSO:
5 Q Mr. Cox, regarding these allegations of
6 molestation, isn't it true that the simple question to you
7 or the simple situation to you was to bathe the children
8 separately, and that you were bathing Kayleigh and cleaning
9 her private parts, and she was old enough to do that
10 herself?
11 A No. I actually got paperwork stating that
12 apparently that I was trying to ~olest my daughter.
13 Q Who did you get that from?
14 AIt was either you or her, but I don't
15 remember which. But somebody sent me paperwork claiming
16 that it came through the mail, wanting to know what I was
17 doing with my child. And that's how I took it, you guys
18 were accusing me of molesting her. I gave her a simple
19 bath.
20 Q There have been no other allegations of
21 improper conduct since you let your mother bathe Kayleigh?
22 A It was supposedly sent to Mrs. Aarhus. Mrs.
23 Aarhus sent me the paperwork that allegations were stated,
24 and she had to by law follow through with letting me know
25 that I was being investigated for it. And that she would
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have to give it also to the State, the information.
Q And since that time have there beon any
other allegations that you are talking about?
A No. From then on out, that day forward I
have made sure that I have had two other parents or adult
with me.
Q Were you bathing [\ayleigh?
A Yes. I gave Kayleigh a bath.
Q Would you clean her private parts?
A I washed her with a wash rag and soap.
Q Okay. Regardi~g tell ing your children not
to call Mark daddy, do you recall telling the children if
they called Mark daddy he would be a dead daddy?
A I never said that, never said that.
Q Does your father or any of your other family
smoke around your chitdren?
A No.
Q Do you know how your daughter would have
gotten burned with a cigarette?
A No. She never got burned with a cigarette.
Q When you bring the children --
A Well, they might have got burned with a
cigarette the week she took them down to Florida. Both my
children came back and told me the entire time they were in
Mark's father's hOLlse and he smoked. And mommy told them
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that we cannot tell him where he can smoke and not smoke in
his own house. But yet you tell my father where he can
smoke and not smoke in his own house.
Q When you bring the children to church do you
typically groom their hair?
A Yes.
Q And they are typically always children when
you bring them?
A Yes.
Q Have you ever missed taking your children
back to Kim?
A What -- taking them -- did I never take them
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back?
Q I will withdraw that question. Regarding
counseling, didn't Kim come to you through me and say we
want to engage in that counseling and that we would have to
find somebody who would aCgept the insurance that the
Birgensmiths
A Repeat the question. I am not getting what
you are saying.
Q Isn't it true that the Birgensmiths never
insisted on having Ms. Aarhus do the counseling, rather
have somebody that would take their insurance do the
counseling? Does that sound familiar to you?
1\ I only think it is her doctor, and that's
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1 who the school or who his company goes through or something
2 like that.
3 Q Regarding thc children, whcre do they sleep
4 on Friday and Saturday nights, at your sister's?
5 A Ycs.
6 Q And you said they slept where, in a bed?
7 A They have what they call -- there are -- I
8 don't know the exact name, but there are -- they are like
9 camping type beds. They are beds.
10 Q On the floor?
11 A No. They are camping type beds.
12 Q Cots?
13 A No. It is not a cot that stands up. It is
14 a thick foam pad about so thick. You fold them out, and
15 you take them camping. Her children also have them. It is
16 like a sleepover. Even though they have their own beds,
17 they fold their own out and also sleep on them.
18 MR. RUSSO: Notning further.
19 MR. KAYER: No redirect.
20 THE COURT: Thank you, si r. You can step
21 down.
22 MR. KAYER: At this time we will call Kay
23 Cox.
24 Whereupon, !<AY COX, having been duly sworn,
25 testified as follows:
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THE COURT: Before you start, Mr. Kayar,
there was one question I did want to ask Mr. Cox that has
come to mind. I will just ask him from where he is
sitting.
What is your weekend work schedule?
MR. COX: I am supposed to work every couple
weekends. I am supposed to work as a mechanic also up
there. But since I requested every other weekend
definitely off, they haven't asked me to do any work for
the weekends.
THE COURT: So you are telling me basically
you have Friday night, Saturday and Sunday off on those
weekends you are with your children?
MR. COX: Yes, sir.
THE COURT: I am sorry. Go ahead.
DIRECT EXAMINATION
BY M~. KAYER:
Q Mrs. Cox, can you state your name for the
record, please?
A Kay Cox.
Q Where do you live?
A 441 North College Street.
Q And you are Greg Cox's mother?
A Right.
Q Now, how frequently have you gotten to see
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1 Matthew and Kayleigh since this order went into effect in
2 June?
3 A Every time he has them. In the beginning,
4 the first three or four visits, they were coming to my
5 house, and I was there on Friday nights. Then my
6 daughter's work schedule changed, and I had to be at her
7 house on the weekends. And Greg started bringing them up
8 there.
9 Q Okay. So you have essentially been there
10 each of these visits the whole time?
11 A Yeah. Except when he takes them someplace,
12 like skating. In the beginning he took them to friends'
13 houses. You know, like they would go for the afternoon or
14 something and come back.
15 Q How much time does Greg actually spend with
16 the kids during his visits?
17 A Well, he is with them all the time except
18 sleeping. He leaves at night when he is at my daughter's
19 house.
20 Q What type of activities does he do with
21 Kay1eigh and Matthew?
22 A We play games there and watch tapes on the
23 T.V. Or they go outside and play. They have in the
24 basement like a game room I guess you call it with things
25 for the kids to do down there. They roller skate down
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there. It is very large. They also go to the roller
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skating ring. And they play individual games. And
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sometimes the girls go in the girls' room and play dolls or
4
something. And Greg is out in the living room. He doesn't
5 follow them around. He is not with them constantly, unless
6 they bring a game to him or we do something all together.
7
Q
Are there long perlods of time where he will
8 not bother with the children at ail on his weekends?
9
A
No, not really.
10
Q
Have you seen the children express affection
11 to Greg?
12
A
Yeah, a couple times. I f they get on his
13 lap and sit there and hug him. He kisses them good night
14 when he tucks them into bed. And as far as their not being
15 upset about coming there, they don't usually want to go
16 home. I mean, it is a chore getting them ready, to get
17 their things together and stuff to go, because they want to
18 keep playing. And, you know, they have never voiced in my
19 presence not wanting to be there. They always seem to be
20 having fun.
21
Q
Do they seem to be afraid of their father?
22
A
No.
23
Q
Or intimidated in any way?
24
^
No.
25
Q
How did you first become aware of Matthew's
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1 change in schools?
2 A We read it in the paper. My daughter's
3 children go to Newville schools also. And you have to read
4 there in the beginning of the year where your class and
5 room and teacher are. And we were reading theirs, and we
6 just happened to look up the rest of the kids that we knew.
7 And Matthew's wasn't listed In the area where he is
8 supposed to be. So my sister, she found it under the
9 Plainfield schools.
10 And I called the office to ask them why he
11 was switched. And she referred me to Mrs. Keener, which is
12 a guidance counselor. And she told me, 1 i ke Greg said,
13 that she couldn't really talk to me unless I had a
14 permission slip from either parent. So Greg signed a
15 permission slip that she could talk to me, because he
16 wasn't able to call during work hours. And she explained
17 to me that Matthew was having difficulty in all his
18 subjects. And that the area he was going to was I guess a
19 better help for him and everything. And she was quite
20 concerned then that we were going to cause problems because
21 we knew nothing about it.
22 She told me that she spoke with Kim before
23 the meeting and said about informing the father, and she
24 said she would do J,t. But Greg was never informed as far
25 as we knew. He didn't tell m" ilnything about it. And the
76
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1 meeting took place on June 8th, which when i saw the
2 paperwork, I said this is funny, because tha last court
3 thing we were in here was on the 5th. I said t~at was
4 three days after that. And we didn't find out anything
5 until September of the following year.
6 Q Okay. Did you ever remark to Mrs. Keener or.
7 anyone else at the schcol that the mother. was
8 psychologically unstable?
9 A No.
10 Q Did you ever relate to them that it was
11 Greg's intention to take the kids out of school or pick
12 them up at the end of the school day?
13 A No. We only discussed the fact of getting
14 information on the children's rerort cards, how well they
15 were doing in school, things of that nature, because it
16 said in the court order that she was to let us know these
17 things. And she hadn't to that date. So we were trying to
18 find out things that they do in school. And she said we
19 have to wr.ite a letter to her for Kayleigh and Mr. Mashus
20 for Matthew. They were the guidance counselors. To
21 request report cards and information on them.
22 Q Has Matthew ever talked to you in private
23 about the problems he has with his father?
24
A
Q
No.
Has he ever expressed to you or in your
25
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presence that he doesn't want to spend as much time with
his father as he spends right now?
A No. The only thing he has ever said to me
was just I think the last time he was there. It was not
that he didn't want to be with his father, he didn't want
to be at the house we were at, at Michelle's. He wanted to
go to my house in Carlisle, because he had some toys there
that's a remote control. He wanted to play with them. He
missed them. And Greg hadn't brought them up to Michelle's
house. So he didn't have them with him.
Q Do you think that the kids enjoy the time
that they spend with Greg?
A Well, they seem to.
Q Do you think it is good for them?
A Yeah, I do.
Q Do you think that limiting that time would
be a good or a bad thing for them?
A Well, I never really asked them. I would
want to ask them before I would make the decision. You
know, do you want not to be here. I don't ask them
questions, like Greg said, because, when we did ask them
I would just ask them normal things like I do my other
grandchildren, like how was school or this and that. And
the remarks I get was I don't know. I forget. And several
times Matthew started to teLL us things that happens in his
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life, and Kayleigh will say, Matthew, we are not allowed to
talk about that. So I don't feel comfortable asking them
anything particular other than, you know, like how are you
feeling today or something like that.
Q Have you observed Greg attempting to call
Kim?
A No. Not in my presence.
Q Have you tried to contact her yourself?
A I only ever called her the one time about
the incident they are talking about with the -- my
daughter's driveway is straight up. When we had the bad
storms it was a sheet of ice. And they di~n'tslip off the
road. What they were was off the driveway into a field,
which is an empty field. And because their wheels kept
spinning, and they would back up into the field to get more
traction where there was grass. But we were having
trouble, not just him, everybody all week.
And I called her to tell her he was stuck,
and as soon as he got loose, you know, somebody was coming
to help him, that I would call her back and let them know
they were on their way, which I did. But I don't call,
because from the very beginning of all this stuff I always
felt that since I am Greg's mother anything I do reflects
on him. And I c1idn' t -- I don't realize, like I said, what
we are supposed to be allowed to do or what will be
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'construed a~ harassing or
MR. KAYI.:H:
lu~Jt_ d.1I1'1, t)l)I,lIor l/lloan...
'[ hilVO 11') olll,!t IpIO/lt.lon~l.
CH()~;:J -EXAM 1 NI\'l' ION
BY MR. HUSSO:
Q
Good morning, Mnl. CI);<.
11"IVI~ you OVI::Jr
needed to return the ell 1.1.r.Iren to ~;tlll 1",,':du,Jf] (jro(j cou I.dn' t
do it?
A
y(~S .
I dld (Hlf] t!.lIlo.
Q And on that I. irnn lunt. t",edu~lo you didn I t
know whero Grog was, right.1
A Well, II,! had wI'nt. 011 b'.,c.,u/lo hill truck or
somethinCJ was bruke. And hI! W"llt. ",0 I.., I k to Bomobody about
gettIng it fixod. And h" dldll'l, (I',t, t,.,ck in tlmo.
Q Okay.
MH. HlJ:-i~-iU : I hdvl' nl)thln<j t,urther.
MH. ~:AYI,:H : Nu t'(~d \ roct .
l'HE CotlHT : Th,lIlk you. You can ~tep down.
MH. KAYI':H: Y'"11 lI11nllr, vl(~ rest.
MH. IUJ:i:iU: Y'"lt lIonor, thero is one
question that Camf! lip wi th ','our 'luost !.on to Mr. Cox about
work, and if [ molY...
T!n: (;OIJI<T:
(.if) (,\hUdd.
MP,. IHJ;i;iO:
r~r. Cox, YOlt are now employed
2.1 with a difior,,,nl "lIlpl,.,y"r Uldn t.ho last time we were in
25 court., (:nrrf,!C't ';1
fit)
,""'"
MR. COX: No.
MR. RUSSO: Do you have vacation time
available to YOl; ?
MP.. COX: Yes.
MR. RUSSO: Thank you.
THE COURT: I assume counsel want me to talk
to Matt?
MR. RUSSO: Please.
THE COURT: Is Kayleigh around?
MR. RUSSO: Matthew.
THE COURT: Kayleigh is not?
MR. RUSSO: Kayleigh is not, right.
THE COURT: If she were, I didn't want to
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14 make her think she was unimportant. Okay. We will go do
15 that very expeditiously, and you say you have a 1:30, and I
16 have an appointment as well.
17 MR. KAYER: That's correct,
18 THE COURT: I doubt that we will reconvene
19 in the courtroom.
20 (Whereupon, Matthew was questioned
21 in chambers.)
22 BY THE COURT:
23 Q Hi, Matt. I guess I talked to you a number
24 of months ago. Do you remember that?
25 A Yes.
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Q
A
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can hear you?
A
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Q
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You say YOIl do I) t you <inn' I:?
I do.
I am sony. Coin Y"II 1.01 I.k good and loud so I
Do you t:t)rnornhor t,llkl,n'l to me bEJfore?
Yl~dh .
And W'l t ,il ked oIhout you r dad.
My <idd.
:;(",Inq Y"lIr dold, riqht'?
Yt~::l .
you saw your dad
right?
Mid 01 1'1... r I 1,.1 kml 1.0 you,
for the fir'lt 11.111" 11101 1'>1111, I.on'l time,
A 'I"".
Q And I. I h In k Y011 'J,\W h irn, what, for one day
at a time tor nwhlluJ
^ YO:i.
Q And th"n Y"ll Wllnt over to start to see him
on we(]k'~nd'l, rl'lht'"
A fllll.! onl Y wan trod to see him once.
Ij Coin you t.o ll. me why you. only w,anted to see
him on(:u}
A Wull, the only thing I wanted to see him
<HI\:" I II b..':dll"" of one time he threw a table at my mommy.
And trn Sol id Uldt whenever you are here -- you shouldn't
Cd II H,lrk ddddy hore. You should call him M,ark.
Q When you go to visit your dad, you go to
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your dad's sister's house, right?
A Yes.
Q Is that where you stay overnight and sleep?
A Yes.
Q You also see your grandma on weekends,
right?
A Yes.
Q What sorts of things do you do when you are
visiting with your dad?
A Oh, the first day when I went there he was
nice, but then the next day he wasn't so nice at all.
QWhy was there a problem of some kind?
A (No response.)
Q Was he mad at you because you did something
wrong?
A No. Sometimes when Kayleigh is bad he is
really mad.
Q And you don't like when he gets mad, right?
A No. I didn't like it when my dad got mad.
Q How have things been going lately when you
visit with your dad, okay?
A Yeah.
Q I hear you go skating on Sunday afternoons?
A' Yeah. I got this.
Q From skating?
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1\ Yeah.
Q What, did you fall down?
A Yeah. Every single day I went there I came
back with bruises.
Q How come you keep falling down?
A Well, when I was skating with daddy I fall
down because he goes too fast a little.
Q Have YOll said dad, slow down?
A I try, but he couldn't hear me.
Q Couldn't hear you, well, because of the
noise and the musLc?
A Yeah.
Q Is there music in this skating rink?
A Yeah. We go to the Midway.
Q Midway. That's a lot of fun. Last time I
was there I fell down too. And I haven't been back since.
But that's okay. You go to church every Sunday?
A Yeah.
Q Does your dad get you there?
A Yeah.
Q Do you get there on time?
A Well, sometimes. Somotimes we are late.
One time he kicked my sister in the bottom one time.
Q Why?
A All she wanted to do was go with him, and he
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came and did it to my sister.
Q Do you know that your daddy loves you very
much, and he would like to get to know you even better than
he does, GO you know that?
A Yeah.
Q Have you been with your mom and Mark this
week?
A
Q
Yeah.
And have they talked to you about this
hearing today'i
A
Q
Yeah.
Did they tell you why you were coming to the
courthouse?
A Yeah. Because you wanted to talk to me.
Q Well, your opinion is very Important, that's
for sure. What are your feelings about visiting with your
dad?
A Well, it i,s like someLimBs -- sometimes I
like to go and sometimes I don't. Whenever I am at mommy's
at night when I am going I say I don't want to go.
Q That's what you tell her?
A Yoah.
Q But some vlsIts are good and some are bad,
right?
A Yes.
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spend quite so much time, it would be better, is that kind
of the way you feel?
A Yeah.
Q Okay. Well, I will think very carefully
about that. But your daddy should see you. That's what
the law says. And that's what we -- the judges think are
good for kids, to see both mom and dad in their lifetime.
On the other hand, we don't want to do anything that will
hurt you, okay?
A Yeah.
Q But your daddy doesn't hit you or anything
like that, does he?
A No.
Q And when he roller skates, he roller skates
a little fast sometimes?
A Yes.
Q Okay.
A Him and Danielle say bad words to each
other.
0 Who are they?
A They are my daddy's sister.
Q They say bad words to each other?
A They say words to each other.
Q Swear words and stuff, bad language?
A Yeah.
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Q And that wouldn't make you happy I am sure?
A No.
Q Is there anythln9 else about visiting with
dad that you are not fond of?
A Well, daddy's sister doesn't like snow.
Q Doesn't like what?
A She doesn't like snow.
Q Snow. And do you like snow?
A Yeah.
Q Well, once you start putting those keys in a
car you won't like snow either. How is school going?
A Good. But one time whenever I was going
somewhere, that was the time when I was going to go to gym,
and that was the time when I didn't even get to do nothing,
because Brandt got me in trouble.
Q You are in a new school now, right?
A Yeah. He was talking and I wasn't and put
his foot on me. You can't get me all the time. And Mr.
Seibert thought it was me and Brandt. Me and Brandt was
talking, but it wasn't. I wasn't talking at all.
Q You got blamed for something you didn't do?
A I didn't get to do anything, because I had
to go.
Q That's not good when it happens.
A I had to stay up at the stage.
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".........,
Q Okay. M~ybe these lawyers have something
they want to ask you about. Do they have any questions?
MR. KAYEH: No.
BY MR. RUSSO:
Q Do you like staying at Michelle's? Is it
okay?
A Yeah. Sometimes. But then I don't get to
play with my toys there.
Q Are those my keys yours?
A They are mine. They are daddy's.
Q When you go stay with daddy, do you ever
want to try and talk to mommy and say good night or
anything like that?
A Yeah. But I can't call.
Q Why not?
A Because one time I was allowed, but then the
next day he said you are here. You don't need to say good
night to mommy. You can say good night to me.
Q Remember the last time we were here you told
me that you were scared because you thought the judge had a
gun under his robe, remember? Do you remember telling me
that?
A Yeah.
Q Do you want to make sure and see if he has a
gun anymore'?
89
GREGORY COX,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, I'ENNSYL VANIA
vs.
97-6919 CIVIL
CIVIL ACTION - LAW
KIMBERLY BIRGENSMITH
Dclendant
IN CUSTODY
AND NOW, this
IN RE: MOTION FOR REcm'''1rlr:J1ATION
P{E.h~.- P('dc:c.
, (;
z"t. oJ day of April, I' / A,j .. ,I c_
ORDER
, in this case:
is modified to the extent that the mother may, a\ her op
hs, with
sixty (60) days' notice to the father, defer one of the father's periods or w"",,,,.uv __tody to the
following weekend in order to ac'~ommodate vacation plans. This may not be done, however, if
the effect is to deny the father a period of partial custody on a holiday.
The parties arc strongly encouraged to engage in counseling. The court, h()wever,
questions the v\llue of counseling which is court-ordered and thus the request for same is
DENIED.
The court continues to be satistled that adopting a different schedule of partial custody for
each of the sibling children is neither in their current best interests nor in that of the future.
Accordingly, any further requests for modification are DENIED.
BY THE COURT,
:!St1l;1. f..
,-
/
1 would prefer YOlJr testimony.
1
~
Okay. Basically what the bottom line here
A
3 is I have made several recommendations. The one
4 recommendation was that the children -- the length of
5 children I s visits be looked at. Matthew is very opposed to
6 visiting at all. Kay1eigh is not at all opposed to
7 visiting, but she talks more in terms of visiting \>lith
8 grandmother and the cousins. And one of the things that
9 did come out in the two sessions that they really spend
10 very little time \>lith dad while they are there. And I had
11 recommended that because 0 f Ma t thevl' s t remen::iolJs res l.stance
12 and feelings and his unwillingness, and they are both at
13 different. places i.n their E'2elings, t.hat consideration be
14 given to perhaps having a one day, one night. visit with
15 father, really being the center of t.he visits with the
16
children.
I Eeel that. they need that time with him.
17 I think it is wonderful that grandmother and
18 cousins are involved, but I am wondering what real time
19 they are spending with father. I have recoffi.-:"ended that.
20 And another recommendation that I made '.,as tr.at it is very
21 important for these children t.o resolve issues that
22 happened either at mother's house or at father's house in
23 the home where they happened. And one of the things that
24 came out was that there were some things that went on that
25 -- one incident particularly it was Kayleigh, that she
37
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1 but he is also not there some of the time. His resistance
2 is he doesn't feel very comfortable at this time with dad.
3 Q r am somewhat confused on your
4 recommendation. r hear you saying on the one hand that it
5 is important to emphasize contact between father and
6 children, and yet your recommendation is to cut down his
7 time with the children, essentially in half?
8 A Well, yes, and r understand your point. But
9 what I was saying there, if you had had a chance to read
10 it, because of the extreme difference of oplnion here with
11 the children, Matthew saying I don"t want to go at all, and
12 Kayleigh saying I will go and I will play games with my
13 grandma and my cousins.
14 I am looking how can we best facilitate
15 things. I think that it is important for them to npend
J.6 most of the time with dad. But r also know that Matthew
17 finds the couple days too long to be away from home, what
18 he considers home. And my feeling was that maybe a shorter
19 time to accommodate ~'atthew' s feelings but also more time
20 with dad when dad is there. No'", I can't speak to how much
21 time dad is spending because, you know, children are not a
22 hundred percent reliable in thei r reporting. But both of
23 them independently said Matthell said he doesn't know his
24 dad. That's not what he said. He knolls his dad but his
25 dad doesn't know him. And Kayleigh said that she doesn't
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spend much time with her dad, that a lot of the time he is
gone. So my feeling was a shorter period of time with a
lot more concentration with dad might accommodate
everybody's best interests.
Q Now, do you recall at the termination
hearing previously you indicated at that time that Matthew
craved contact with his father?
A I think Matthew did Matthew wanted to
know that his father cared about him.
Q And at that time you also stressed that if
there was going to be a relationship between father and
children, that it should be something constant so that
there wouldn't be, you know, a long period of interruption
of contact. Do you recall that?
A Absolutely.
Q Is there anything that you have heard in
your counseling of the children or the family to indicate
that Mr. Cox has not regularly been visiting with the
children?
A Only that they are saying that when they go
there he is not there. He apparently is not there a lot of
the time. I don't know that, but they both complained that
he is not around that much.
Q Okay. New, you also indicated in your
recommendations here that it is not good for issues from
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1 understand the reaSQn behind that.
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THS COURT: He would have to know why -- he
should know why it is being done and so forth.
THS WITNSSS: And I don't think that that
would hurt. I think it would give dad a chance to have
some time with Kayleigh himself. And that's always nice
too when we can spend individual time with the children.
THS COURT: Thank you. Thank you veri much
for making yourself available. And have a very good day.
THS ~IITNSSS : Thank you.
THS COURT: Bye-bye.
THE: WITNE:SS: Bye-bye.
THE: COURT: Okay. We can reconvene in the
courtroom.
(Whereupon, the following proceedi.ngs
occurred in open court.)
THS COURT: Mr. Kayer.
MR. KAYER: We will call Greg Cox to the
stand.
Whereupon, GREGORY COX, having been duly
sworn, testified as follows:
DIRECT SXAMINATION
BY MR. KAYER:
Q Can you state your name for the record,
please?
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o
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But I figure it is a fad, you know, if they want to lea~n
it, they can lear.n it. But it is pretty much a game.
Then come Saturday we do just about anything
the kids want to do. You know, we play. Like I said,
there is a big, I mean, it is a huge yard. But the kids
play outside or whatever. Sometimes we sit in there and
watch new movies and stuff. You know, but there is always
at least two or three ~arents or adults there at the house.
Q Where do the kids spend overnight?
A They spend their. overnight. now at my
sister's place since I was accused of molesting Kayleigh.
I figure I don't want to be off at anytime where, you know,
it was just one parent.
Q Do they have adequate sleeping facilities
there?
A Yes. My slster'G kids, she has two children
of her own, a boy and a girl. And the~e a~e just a couple
years difference in the ages. So Kay1eigh sleeps with her
daughter in her ~oom. And Matthew sleeps with her son in
his room. Now, they each have their own separate cot type
beds that they sleep on.
Q Do you put the kids to bed at night?
A Yes, I do. I kiss them good night each
night. And r make su~e the~e is somebody in the room also
wheneve~ I do that.
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Q Are you staying overnight at your sister's
place?
A That's the only thing I don't do, because
there is not enough space for us. But I could sleep on the
floor if I have to or on the couch.
Q Are you there in the mqrning?
A I am there in the morning when they get up
in the mornings. I make sure that I show up on time.
Q Okay. What type of medication de either of
the kids have to take?
A Matthew is on learning disorder medication.
And, therefore, for a while she complained that I was not
giving the children the medicine and stuff. So I made ~ure
every time Matthew shows up I take the medicine out of his
bag. I hand it to my mother, and she gives it to him in
the morning and in the afternoon just like -- well, like
Kim says it is supposed to be done. The doctor claims he
is supposed to be given the medication three times a day.
Kim only sends medication for two times a day. I give the
children exactly what -- we give the children exactly what
they are supposed to have.
Q Has there ever been a,time where you did not
comply with the mother's wishes about medication?
A No. Medication is always given. Ev~n
though I am not too sure about giving the medication, I
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E
A I believe so, yes.
Q That was a request you asked through the
father? You didn't want to see their church disrupted?
A Right.
Q And he accommodated that request, is that
right?
A He also had agreed to that prior to the
conciliation because his family goes there. And r would
think he would want his children to be of the same religion
that his family is.
Q So it is not your testimony t~at he has ever
kept the kids from going to church, it is jus: you are
not --
A ~e is late for church every ti~e. They miss
their prayer. They miss their devotion. And they miss the
story at the beginning.
Q No.", regarding your chi ld!:en' S school ing,
you indicated that your daughter has had some episodes at
school this yea!: that you are concerned abou: regarding her
behavior?
A Yeah.
Q You also expressed concerns atout her grades
or her performance in school?
A Yeah. Well, she is improving now. I am
working more with her.
17
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that counseling might be a good idea?
A I would say separate counseling other than
her. Because when I talked to the school counselor, they
did not think too highly of her. They did not have a good
rapport.
Q If there were arrangements made to have some
type of family counseling, using someone besides Ms.
Aarhus, would you agree to that?
A I have requested someone else other than
Mrs. Aarhus and was told no. But I would definitely like
counseling with someone else.
Q Who told you no?
A Kim told me that this is her place, and
they were staying. This is her family doctor or whatever.
Q Do ycu perceive a need to change this
custody order?
A I do not thinK it should be changed. I
don't want a shorter time. I just want less of the
constant bickering and the calls where my children are
coming to me and telling me we are not allowed to do this.
Mommy says we are not allowed to do this, or we are not
allowed to talk this way. That's all I ever get. So I
don't know where my limits are. You know, I just don't
know what to be able to say to the children without
offending them one way or the other, because it offends
69
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GREGORY COX.
Pluintill'
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY. PENNSYl.V ANIA
v,
NO, '17- 6919 CIVIL TERM
CIVil. ACTION -l.AW
KIMBERLY BlRGENSMITH.
Delcndunt
IN CUSTODY
ANSWER TO I)EIIENIlANT'S MOTION 1I01~ I~ECONsmEnAT!!W.
COMES NOW. Pluintitl: Gregory Cox. by and througb his attorney. James J Kayer.
Esquire hnd who docs respond to Detcndant's Motion for Reconsideration as tl)lIows
I, Dclcndant in her Motion Illl' Reconsideration addresses three (]) specitic issues that
sbe wishes to raise once again before this Honorable Court.
2, The lirst issue pertains to the Court's tailure to address the issue of counseling,
3, Plaintitrin his testimony and in his Pre-Trial Statement indicated to the cour! that hl:
would be willing to participate in counseling designed to promote communication and
cooperation between the parents, This position certainly was not meant to be an endorsement of
the concept of counscling, The Plaintitl' believes tlmt the court aileI' hearing each party's
testimony pertaining to counseling. caretttlly considered the potential benelits lIf sllch cOllnseling
and determined that such cOllnseling was inappropriate,
4, The second issue addressed in Detcndanl's Motion for Reconsideration pertains to the
Defendant's r'l:quest for an uninterrupted vacation time equal to the period of time provided to the
Plaintitf The Plaintill' presumes that the court addressed the merits of that issue in its decision to
endorse the prior Custody Order. Plaintitl'believes that given the tilCt that the mother enjoys
signilicant primary physical custody rights with the children, that the need till' a "block" of
vacation time is unnecessary,
5, The linal issue addressed in the Detcndant's Motion Illr Reconsideration pertains to the
,/
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Docket or File No. 97-6919 Civil Term
COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
GREGORY COX, Plaintiff
KIMBERLY BIRGENSMITH, Defendant
~QTlCE OF APPEAl"
Notice is hereby given that Kimberly Birgensmlth, Defendant above named, hereby
appeals to the Superior Court of Pennsylvania from the order entered in this matter on the
22 day of February, 1999, This order has been entered In the docket as evidenced by the
attached copy of the docket entry.
Defendant respectfully requests this appeal be stayed until such time as the Court of
Common Pleas of Cumberland County determines the outcome of a pending Motion for
Reconsideration in this matter.
~!:r;d
Peter J. Russo
61 West Louther Street
Carlisle, PA 17013
(717) 249-2721
--
Date: March 23, 1999
PYS510
1997-06919
Cumberland County prothonotary's Office
Civil Case Inquiry
COX GREGORY (vs) BIRGENSMITH KIMBERLY
Page
1
~
Reference No..:
Case Type.....: PETITION - CUSTODY
JUdSmeflt '1" .. : .00
Jud e Ass gned: HESS KEVIN A
Dis osed Desc.:
------------ Case Comments -------------
F i 1 ad. . . . . . . . :
Time......... :
Execution Date
Jury Trial....
Disposed Date.
Higher Crt 1.:
Higher Crt 2.:
12/16/1997
2:39
0/00/0000
0/00/0000
.**..**.*.**....**.....~**............*.**...*..*............**...........*.....
General Index Attorney Info
PETITIONER KAYER JAMES J
I
i
I
"
COX GREGORY
441 NORTH COLLEGE STREET
CARLISLE PA 17013
BIRGENSMITH KIMBERLY
416 BLOSERVILLE ROAD
NEWVILLE PA 17241
RESPONDANT
RUSSO PETER J
r."
.....**.........................................................................
. Date Entries ·
.............................................................**..........**n....
12/16/l.997
12/18/1997
1/28/1998
1/28/1998
4/13/1998
6/08/1998
10/02/1998
10/14/1998
12/11/1998
2/23/1999
3/05/1999
3/12/1999
- - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - -
PETITION FOR CUSTODY
-------------------------------------------------------------------
ORDER OF COURT - DATED 12/17/97 - IN RE PETITION FOR CUSTODY -
PREHEARING CUSTODY CONFERENCE 2/5/98 10:30 AM 4TH FLOOR CONFERENCE
ROOM CUMBERLAND COUNTY COURTHOUSE - BY HUBERT X GILROY ESO CUSTODY
CONCILIATOR - NOTICE AND COPIES MAILED 12/18/97
-------------------------------------------------------------------
PRAECIPE FOR WITHDRAWAL OF APPEARANCE FOR DEFENDANT BY MICHAEL A
SCHERER ESO
--------------------------------..----.------------------------------
PRAECIPE FOR ENTRY OF APPEARANCE FOR DEFENDANT BY PETER J RUSSO ESO
-------------------------------------------------------------------
CONCILIATOR CONFERENCE SUMMARY REPORT AND ORDER - DATED 4/9/98 -
HEARING 6/3/98 9:30 AM CR 4 - BY KEVIN A HESS J - COPIES MAILED
4/13/98
-..-----------------------------------------------------------------
ORDER - DATED 6/5/98 - BY KEVIN A HESS J - COPIES MAILED 6/8/98
-----.--------------------------------------------------------------
PETITION FOR EMERGENCY RELIEF
-----------------------------------------------.--------------------
ORDER OF COURT - DATED 10/12/98 - IN RE PETITION FOR EMERGENCY
RELIEF - PREHEARING CUSTODY CONFERENCE 12/3/98 10:30 AM 4TH FLOOR
JURY DELIBERATION ROOM CUMBERLAND COUNTY COURTHOUSE - BY HUBER X
GILROY ESO CUSTODY CONCILIATOR - NOTICE AND COPIES MAILED 10/14/98
--------------------.-----------------------------------------------
CONCILIATOR CONFERENCE SUMMARY REPORT AND ORDER - DATED 12/11/98 -
HEARING 2/18/99 9:30 AM CR 4 - BY KEVIN A HESS J - COPIES MAILED
12/14198
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ORDER - DATED 2/22/99 - IN RE MOTION FOR MODIFICATION - BY KEVIN A
HESS J - NOTICE MAILED 2/23/99
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MOTION FOR RECONSIDERATION
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RULE TO SHOW CAUSE - DATED 3/12/99 .. IN RE MOTION FOR
RECONSIDERATION - RULE IS ISSUED UPON RESPONDENT RETURNABLE WITHIN
20 DAYS OF THIS DATE - HEARING 4/22/99 1:30 PM CR 4 - BY KEVIN A
HESS J - NOTICE MAILED 3/15/99
- - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - -
w......................................................~.**....................*
. Escrow InformatIon ·
. Fees & Debits Bea Ba1 Pvmts/Ad1 End Da1 ·
..............*..........*......4........~*.....,.........................*.....
PETITION
TAX ON PETITION
SET'l'LEMENT
JCP t'EE
CUSTODY FEE
35.08
.5
5.00
!l. 00
4.00
35.00
5:68
5.00
4.00
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~PR 081998
GREGORY COX,
Plaintift'
V
:IN THE COURT OF COMMON PLEAS OF
,CUMBERLAND COUNTY, PENNSYLVANIA
.
.
,CIVIL ACTION - LAW
.
.
KIMBERLY BIRGENSMITH,
Defendant
:NO: 6919
: IN CUSTODY
CIVIL 1997
COUR'l' ORDER
AND NOW, this (I'l/f day of April, 1998, upon consideration of tho
attached Custody Conciliation Report, it is ordered and directed as
follows:
1. A hearing is scheduled .in Court Room No. 4 of the Cumberland
County Courthouse on the , ~I..;u'( day of ()" It (_~ ,
1998, at Ii ".;(, f\, m. at which time testimony wi.l'1 be takenln
this case. At this hearing the Father, Gregory Cox, shall be
the moving party and shall proceed initially with testimony.
Counsel for the parties shall file with the Court a memorandum
setting forth the history of custody in this case, the issues
currently before tho Court, a list of witnesses who will be
called to testify for each party and a summary of the
anticipated testimony of each witness. This memorandum shall
be filed at least ten days prior to the hearing date with a
copy of the memorandum to be afforded to opposing counsel.
2. Pending further Order of this Court, the following temporary
Custody Order is entered:
A. The Mother, Kimberly Birgensmith, shall enjoy legal and
physical custody of Matthew Cox, born August 7, 1990; and
Kayleigh Cox, born January 26, 1992.
B. The Father, Gregory Cox, shall enjoy periods of temporary
physical custody as follows:
1. On Saturday, April 11, for a period of one hour to
be exercised at the Mother's home.
2. On the following two Saturdays, for a period of
three hours when the Father may take the children
from the Mother's home and enjoy unsupervised
visitation with the two minor children.
3. For the following Saturdays, up until the date of
the above mentioned hearing, for a period of six
hours each Saturday when the Father may take the
children from the Mother's home and enjoy
unsupervised visitation.
-ai'
".
KIMBERLY BIRGENSMITH,
Defendant
I IN THE COURT OF COMMON PLEAS OF
ICUMBERLAND COUNTY, PENNSYLVANIA
I
:CIVIL ACTION - LAW
I
INO: 6919 CIVIL 1997
I IN CUSTODY
GREGORY COX,
Plaintiff
V
Prior Judge:
Kevin A. Hess
CONCILIATION cONFERENClIl SUMMARY RmPORT
IN ACCORDANCE WITH THE CUMBERLAND COUNTY CIVIL RULE OF PROCEDURE
1915.3-8(b), the undersigned Custody Conciliator submits the
following report:
1. The pertinent information pertaining to the children who are
the subject of this litigation is as fol,lows:
Matthew Cox, born August 7, 1990; and Kayleigh Cox, born
January 26, 1992.
2. A Conciliation ctlnference was he.ld on April 2, 1998. Present
were the Father, Gregory Cox, with his counsel, James J.
Kayer; and the Mother, Kimberly Birgensmi th, wi th her counsel,
Peter J. Russo, Esquire.
3. The Court had previously held a hearing in this case on a
Petition by the Mother's new husband for adoption in which it
was al.Zeged that the Father had forfei ted his parental rights.
Judge Hess issued an Order denying the termination of the
Father. Tho case was then scheduled for a Custody
Conciliation.
4. The Father has had limited contact with the minor ohildren
over the past two years. The Mother has a number of concerns
with respect to allowing Father custody. Mother suggests the
Father's custody should be in the amount of 30 minutes one day
every two weeks and for this to extend for a number of months.
Father is willing to work on a graduated custody schedule but
feels that there must be some type of more meaningful custody
arrangement entered into in order to allow him to reconnect
with his children.
5. The parties are unable to agree upon an Order in this case and
a tJesring is required. A hearing should take no more than one
day. The Conciliator recommends an interim custody
arrangement as set for in the attached proposed Order.
~1Jl qf_
DA E
4~roY, ...',,,
custo)Y onciliator
From July 1993 ulllil the present, with Mother, Kimberly Birgensmith, Step-Futher, Mark Birgensmith,
Step-sister, Shawnee Birgensmith and Step-sister, Khole Birgensmith lit 416 Bloserville ROUlI, Newville,
PA, 17241.
4. The mother of the children is Kimberly Birgensmith, currently residing lit 416 Bloserville
Road, Newville, PA 17241. She is marricd,
5. TIIC father of thc childrcn is Grcgory Cox, currently residing at 441 North College Strcct,
Carlisle, Pcnnsylvania 17011. He is singlc.
6. The rdationship of Plaintiff to the children is that of fathcr, The Plaintiff currcntly resides
with thc following person(s):
Name
Relationship
Paternal Grandfathcr
Ronald Cox
Kay Cox Paternal Grandmother
7, The relationship of the defendant to the children is that of mother. TIle Defendant currently
resides with childrcn and the following person(s):
Name
Mark Birgcnsmirh
Shawnce Birgensmith
Khloe Birgensmith
Relationship
Husband
Step-Daughter
Step-Daughter
8. Plaintiff has not participated as a party or witl1l~ss, or in another ~apacity, in other litigation
conceming the custody of the children in this or another court. Plaintiff has no information of a custody
proceeding concerning the children pending in a court of this Commonwealth, Plaintiff does not know
of a person not a party to thc proceedings who has physical custody of the children or claims to have
custody or visitation rights with rcspect to the children, Plaintiff is aware of a Petition filed by the
v.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97-6919 CIVIL TERM
CIVIL ACTION. LAW
CUSTODY
JUDGE KEVIN A. HESS
GREGORY COX
Plaintiff
KIM BIRGENSMITH
Dofendant
AND NOW, this \.(} day af QC\Obe I" , 1998, upan
canslderatlan af the attached Camplalnt, it Is hereby directed that the parties and their
respective caunsel appear befare l\.JIcr\\ ^, (:)\ \ (0--..\ 1 t-=_sC\ . ,
the Can~lIIatar, at\\-c: l.\~\'\"f'\(J'\\rI' \\"S",trh'rW Cn (n d\'lv"c an
the ~ _dayaf ~(ef'{\'o(' I" ,1998,at \()',~c) Q..,m,
far a Pre-Hearing Custady Canference. At such Canference, an effart will be made to.
resalve the issues in dispute; ar if this cannat be accampllshed, to. define and narraw the
issues to. be heard by the Caurt, and to. enter Into. a Temparary Order. All children age
five ar alder may at the request af either attorney ar party, be present at the canference,
Failure to. appear at the Canference may pravlde graunds far the entry af a temparary ar
permanent Order.
FOR THE COURT,
By:.JI.uQJul. X:,~lbJ. '
Custady Cancllia~~
The Caurt af Com man Pleas af Cumberland Caunty is required by law to. cemply with the
Americans with Disabilities Act af 1990. Far infarmatian abaut accessible facilities and
reasanable accammadations available to. disabled individuals having business befare the
caurt. please centact aur affice, All arrangements must be made at least 72 heurs prior to.
any hearing or business befare the court. Yau must attend the scheduled conference or
hearing,
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT OtICE. 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 Lawyers Referral Service
Cumberland Caunty Bar Associatian
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
/
a, On two occasions, after being asked not to allow the minor children to be
around dogs, Kaylelgh Cox was Injured twice by dogs while In the custody and
care of the Plaintiff,
b, After being repeatedly asked, Plaintiff has Insisted on smoking while in the
presence of his children, This smoking has led to the development of
Kaylelgh's bronchitis. Even after being presented with a letter from Kaylelgh's
doctor requesting that Plaintiff not smoke in the presence of the children,
Plaintiff responded by saying that he would do whatever he wanted,
c, Plaintiff has instructed the minor children to punch each other and others if they
do something the child does not like.
d, Plaintiff has contacted the school administration where the minor children are in
school and advised them that Defendant was psychologically unstable, He
further advised the school's personnel that he would be picking the children up
from school, This is in direct conflict with the terms of the existing Order of
Court,
e, Plaintiff has made it difficult for the parties to communicate, This escalated in a
confrontation in front of Defendant's church where Plaintiff threatened to kill
Defendant's husband and physically grabbed Matthew by the arm and pulled
Matthew.
f, Plaintiff has been repeatedly late in picking up his children for his visitation as
well as dropping them off at the conclusion of his visits,
g, Plaintiff has chronically directed Insulting comments about the Defendant an,d
her husband to the minor children. For example, Plaintiff has told his minor
children that their mother was a witch, bitch and drunk,
h. Plaintiff transports the children In a pickup truck. At times, Plaintiff Insists on
transporting the children by buckling the two children In the only seat belt,
I, Plaintiff falls to supervise the children during his visits.
7, Defendant views these acts as real and Imminent threat to the children's mental well-
being and possibly the children's physical well-being.
8, The parties have not been able to further discuss their position with each other and
the Court's intervention is required.
9, Counsel for Defendant has advised Counsel for Plaintiff, James Kayer of the herein
petition via telephone and telecopler.
10, Attorney Kayer's concurrence was sought and was not obtained.
11, Accordingly, the best interest and permanent welfare of the minor children will be
served by preventing the ongoing and unfettered abuse provided by the Plaintiff
pending further hearing on this matter.
GREGORY cox
PI.lntl"
v.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97-6919 CIVIL TERM
"
KIM BIRGENSMITH
D.,.,d.nt
CIVIL ACTION - LAW
CUSTODY
r.-
ORDER
AND NOW, this 5t:J. day of June, 1998, upon the Agreement of the parties,
IT IS HEREBY ORDERED AND DECREED THAT:
1 . Kim Blrgensmlth and Gregory Cox shall have shared legal custody of
Matthew L. Cox, bOrrl August 7, 1990 and Kayleigh B. Cox, bom January 26, 1992.
2. KIm Blrgensmith shall have primary physical custody of Matthew L, Cox.
bom August 7, 1990 and Kayleigh B. Cox, bom January 26, 1992.
3. Gregory Cox shall be entItled to periods of physical custody, for purposes
of visitation, which at a minimum shall include:'
a. Friday, June 5, 1998 beginning at 6:00 p.m. until Saturday, June 6,
199B at 6:00 p.m.;
b. Saturday, June 20, 199B beginning at 6:00 p.m. until Sunday, June
21, 1998 at 6:00 p.m.;
c. Beginning Friday, July 24, 1998, Gregory Cox shall be entitled to
altematlng weekends beginning on Fridays at 6:00 p.m. until
Sundays at 6:00 p.m.;
(1) As a part of the visits referenced in this section, Gregory Cox
agrees to take the Children to Sunday services at the
Newville Church of the Brethren and pick the Children up
I
I.
f'
I
I
after the services.
d. Gregory Cox shall have a four (4) hour period on any day agreed
during the weel{ of each child's birthday; and
4. In addition to the preceding visitation schedule, the parties have agreed to
provide visitation during holidays as provided herein:
a. The parties shall alternate Memorial Day, the Fourth of July and
Labor Day. In 1998, Kim Birgensmlth shall have Memorial Day and
Labor Day. In 1999, Gregory Cox shall have Memorial Day and
Labor Day. The parties will alternate this schedule each year.
These visits shall be from 1 :00 p.m. until 7:00 p.m.
(1) In the event any of Gregory Cox's holidays, as set forth In the
preceding paragraph, should fall on a Monday which
immediately follows his regularly scheduled weekend visit,
that weekend's visit shall extend from Friday at 6:00 p.m. until
Monday at 7:00 p.m.
5. TIle remaining holidays'shall be apporttoned as provided herein:
a. Thanksgiving shall be broken into two segments. Kim Blrgensmith
shall have custody of the Children on Thanksgiving Day until 1:00
p.m. Father will have custody of the Children on Thanksgiving Day
from 1 :00 p.m. until 7:00 p.m.
b. Christmas shall be broken Into two segments. Kim Blrgensmlttl shall
have custody of the Children on Christmas Day until 1 :00 p.m.
Father will have custody of the Children on Christmas Day from 1 :00
p.m. until 7:00 p.m.
c. Irrespective to the foregoing, Father's Day shall be with Father, and
Mother's Day shall be with Mother, and this visitation shall be from
1 :00 p.m. until 7:00 p.m. or as otherwise agreed upon by the parties
due to their work schedules.
6. The holiday schedlJle shall take precedence over all other regularly
scheduled visitation.
7. In 1998, Gregory Cox shall be entitled to the following vacation schedule:
a. Gregory Cox shall be entitled to visitation beginning on July 5, 1998
through July 11, 1998.
b. Kim Birgensmith shall deliver the children each day during said
period to Gregory Cox after he completes work.
c. The children shall remain with Gregory Cox until the following
morning when Kim Blrgensmlth shall pick the kids up.
d. This procedure will continue until July 11, 1998.
8. In 1999, Gregory Cox shall be entitled to two non-consecutlve weeks 01
uninterrupted visits during the children's summer vacation.
9. Beginning In 2000 and each year thereafter, Gregory Cox shall be entitled
to three non-consecuttve weeks of uninterrupted visits during the children's summer
vacation.
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B. Mother's counsel is nllorded the opportunity to obtain written verification
Irom the minor children's treating physiciWl relative to the requirement that
the chlldrcn take Ritnlin while they are in the Custody of the Father. Upon
receipt of that inl()mllltlon, counsel for the parties can huve u telephone
cI)I1fcrence with the Conciliator In nn attempt to resolve the Issue of whether
the childrcn must be rcquired to take Ritalin while they ure in the custody of
the Father,
BY THE COURT,
.~./I~
J.
cc: Peter J. Russo. Esquire 'I 'I S'
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James Kayer, Esquire -0- 1 J,."6' ,
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II ISSUES PRESENTED
Of those complaints specified in the mother's petition in Paragraph 5 (a) through (i), the
parties agree that Subparagraph 5 (d) pertaining to the lather's contact with the school is no
longer an issue or concern for the mother, The father has identilied certain issues regarding the
methods that the mother utilizes lor punishing the children, derogatory comments made about the
lillher and his household by the mother and step lather in the presence of the children, a continuing
disruption in communication between father and children and a general disruption of the regularly
scheduled visits that father is to have with the children, as well as a nearly complete break down in
communication between the households. It is the father's perception that the mother has resented
his assertion of his rights as the father of the children and has embarked on a campaign of
intimidation and non-communication in order to attempt to so frustrate the father that he will
voluntarily relinquish his custody rights,
III. WI1'NESSES
A, Gregory Cox, the father will testifY as to his desires for continuing contact with the
children and his experiences in spending time with the children since the institution
of the court's April9il1 and June 6il1 Orders. He will also testify regarding the
difficulties he continues to encounter with the mother with regard to his time with
the children,
B, Kay Cox, the Plaintifr and the paternal grandmother, Mrs. Cox, will testifY as to
her observations of contact between father and children as well as difficulties th&t
she has observed with regard to the mother's intentional sabotage of the custodial
arrangements.
4, On or about February 24, 1999, Defendant received the Honorable Kevin A. Hess'
Order of Court, A true and correct copy of said Order of Court has been attached
hereto as Exhibit B,
5, During the February 18, 1999, hearing both parties agreed that family counseling would
be appropriata and each party consented to engage In such counseling if so ordered,
6. Honorable Kevin A. Hess' Order of Court dated February 22, 1999, does not address
the Issue of counseling,
7, The Plaintiff requested a period of uninterrupted vacation time equal to the period of
time provided to Plaintiff.
8, Honorable Kevin A. Hess' Order of Court dated February 22, 1999, does not address
this issue,
9, The Plaintiff admitted that he does not spend Saturday evenings with his children and
Defendant respectfuliy advances the suggestion that all parties would be benefit from
the following amendment to the present Order of Court:
a, Plaintiff shall return the children to Defendant on Saturday evening at 7:00 p,m,
Plaintiff shall return the children to Defendant after church service on Sunday.
Defendant shali then have custody on Sunday until 5:00 p,m,
11, This will avoid late arrival at church sorviUls and any future confrontations at church,
12, In light of the foliewlng, Defendant respectfuliy requests that this Honorable Court
reconsider its Order of Court dated February 22,1999.
13, Defendant has sought the concurrence of opposing counsel and opposing counsel's
concurrence was not obtained
tJltEt:iOR Y COX,
Plt1lnliff
, .
IN THE COUln OF (llf',IMt)1'\ PLEAS OF
CUMBERI.AND COUNTY, PENNSYL V,\NII\
v~.
Q7.6919 CIVIL
CIVIL ACTION. LA W
KIMDERL Y l3IRGENSMITH
\)efenulInt
IN CIJSTODY
IN RE: MOTION F<)R M()D!FIC A TI<,lli
ORDER
AND NOW. this
Z1-::!. day IlfF~brllary, 1999, the eXislillg ,:llstody .)rd~r In thi$
~ll$e is llIodit1ed to prL1vido.l that:
I. The parcnt who has cu~tod'i Ilf thc dllk\ro.)lI sldl permit rca"inable telephol\e contact
by the children with the parent then \Jut of custml,: lllld
,!. Wnen Clu'isnnas falls on l\ weekend wllidl would otherwise bc scheduled for the
fathcr's custody, the mother shall havc cU$tody of the children commencing at 6:00 p,m, on
Chl'i5trlltlS El'e whcn Christmas falls on II Saturday and at ~:\lO a,l11. on Christrmls D..y when
ChmllllC\' fall:, on a Sunday,
In all other respects the r\efcndant's motion for modifkation 15 DE~IED,
BY TllE COURT,
JUlltes Kayer. [squue
For the PlaintitT
t. 1.1~
Pelcr Russo, Esquire
F or the Defend'Ult
,rIm
(1) As a part of the visits referenced In this section, Gregory Cox
agrees to take the Children to Sunday services at the
Newville Church of the Brethren and pick the Children up
after the services.
d. Gregory Cox shall have a four (4) hour period on any day agreed
during the week of each child's birthday; and
4. In addition to the preceding visitation schedule, the parties have agreed to
provide visitation during holidays as provided herein:
a. The parties shall alternate Memorial Day, the Fourth of July and
Labor Day. In 1998, Kim Blrgensmith shall have Memorial Day and
Labor Day. In 1999, Gregory Cox shall have Memorial Day and
Labor Day. The parties will alternate this schedule each year,
These visits shall be from 1 :00 p.m. until 7:00 p.m.
(1) In the event any of Gregory Cox's holidays. as set forth in the
preceding paragraph, should fall on a Monday which
immediately follows his regUlarly scheduled weekend visit,
that weekend's visit shall extend from Friday at 6:00 p.m. until
Monday at 7:00 p.m.
5. The remaining holidays shall be apportioned as provided herein:
a. Thanksgiving shall be broken Into two segments. KIm Blrgensmith
shall have custody of the Children on Thanksgiving Day until 1 :00
p.m. Fathor will have custody of the Children on Thanksgiving Day
from 1 :00 p.m. until 7:00 p.m.
b. Christmas shall be broken Into two segments. Kim Blrgensmlth shall
have custody of the Children on Christmas Day until 1 :00 p.m.
Father will have custody of the Children on Christmas Day from 1 :00
p.m. until 7:00 p.m.
c. Irrespective to the foregoing, Father's Day shall be with Father, and
Mothers Day shall be with Mother, and this visitation shall be from
1 :00 p.m. until 7:00 p.m. or as otherwise agreed upon by the parties
due to their work schedules.
6. The holiday schedule shall take precedence over all other regularly
scheduled visitation.
7. In 1998, Gregory Cox shall be entitled to the following vacation schedule:
a. Gregory Cox shall be entitled to visitation beginning on July 5, 1998
through July 11, 1998.
b. Kim Blrgensmith shall deliver the children each day during said
period to Gregory Cox after he completes work.
c. The children shall remain with Gregory Cox until the following
morning when Kim Birgensmith shall pick the kids up,
d. This procedure will continue until July 11, 1998.
8. In 1999, Gregory Cox shall be entitled to two non-consecutive weeks of
uninterrupted visits during the children's summer vacation.
9. Beginning in 2000 and each year thereafter, Gregory Cox shall be entitled
to three non-consecutive weeks of uninterrupted visits during the children's summer
vacation.
~_ ,.... t." .
~
IN THE: SUPERIOR COURT
OF PENNSYLVANIA
GREGORY COX,
Appellant
.
, ,
v.
DOCKET NO: 00635MDA99
:it en - lLR l'l
KIMBERLY BIRGENSMITH,
Appellee
PRAECIPE TO WITHDRAW APPEAL
TO THE PROTHONOTARY:
Appellee, Kimberly Blrgensmlth, respectfully requests the above-captioned appeal
be withdrawn.
Date: May 24, 1999
~m'2',
"'j - -c:
Pe . usso
61 West Louther Street
Carlisle, PA 17013
(717) 249-2721
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Plaintiff
: IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
: PENNSYLVANIA
v.
· KIM blLr(~ryJdhDcfcndant
: CIVIL ACTION LAW
:No&9/c.; CIVIL 1971
: CUSTODY VISZTATION
I j
ORDER OF COURT
And now, thi!t~fL( fJr. I{), ~~~ttonsid~rntion of the attached complaint, it is hereby directed
that t~e above pa~~es and their resp'ect~ ,counse fPpear before (
Esqullc, the conCIliator, at ,II/-' {) . '
Pennsylvania, on the day of - , 1999, at /()Jt\ 0'MJP.M.,
for a Pre-hearing Custody Conference, 1\ such conference, an effort will be made to resolve the
issues in dispute; or if thiS cannot be accomplished, to define and narrow the issues to be heard
by the court, and to enter into a temporary order, All children age five or older may be present at
the conference, Failure to appear at the conference may provide grounds for the entry of a
temporary or pennanent order.
FOR THE COURT:
By:
YOU SHOULD TAKE THIS PAPER TO YOUR LA WYER 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.
THE CUMBERLAND COUNTY BAR ASSOCIATION
2 LIBERTY AVENUE
CARLISLE, PA 17013
(717) 249-3166
1-800-990-9108
I;"
PETER J, RUSSO, ESQUIRE
PA Supreme Court ID: 7289'7
61 West Louther Street
Carlisle, PA 17013
(717) 249-2721
GREGORY COX
Plaintiff
Attorney for Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUN1'Y, PENNSYLVANIA
NO. 97-6919 CIVIL TERM
CIVIL ACTION - LAW
CUSTODY .
KEVIN A. HESS, JUDGE
v.
KIM BIRGENSMITH
Defendant
PETITION FOR CONTEMPT
AND NOW, comes the Defendant, KIM BIRGENSMITH, by and through her
attorney, Peter ~, Russo, Esquire, and respectfully submits the fOllowing in support of
Defendant's Petition for Contempt::
1, The Plaintiff is GREGORY COX, residing at 441 College Street, Carlsle, Pennsylvania
17013.
2, The Defendant is KIM BIRGENSMITH, residing at 416 Bloservllle Road, Newville,
Pennsylvania 17241,
3. The parties are the parents of the following children:
Name
Matthew Cox
Kayliegh Cox
Present Residence
QQB
4. Matthew Cox and Kayliegh Cox were not born out of wedlock.
5, While unable to Initially reconcile the partlos' Issues at a custody conciliation
conference, a hearing was scheduled before the Honorable Kevin A. Hess,
6, Prior to the hearing, the parties negotiated an agreement. An Order of Court dated
June 5, 1998, was drafted from the terms of the parties' agreement. A true and corre?t
copy said Order of Court Is attached hereto as Exhibit A.
'7. Defendant filed a petition to modify the parties' custody June 5,1998 order.
8, A custody hearing was held before the Honorable Kevin A. Hess on February 18,
1999,
9. An Order of Court was entered on February 22, 1999, by the Honorable Kevin A.
Hess, A true and correct copy said Order of Court is attached hereto as Exhibit B,
10. Defendant filed a Motion for Reconsideration and said motion was heard by the
Honorable Kevin A. Hess,
11. On or about April 22, 1999, the Honorable Kevin A, Hess entered on Order of Court
in response to Defendant's Motion for Reconsideration, A true and correct copy of
said Order of Court is attached hereto as Exhibit C,
12,In relevant part, the attached Orders of Court require the division of custody as
follows:
13, Plaintiff has custody of the subject minor children on alternating weekends from
Fridays at 6:00 p,m, until Sundays at 6:00 p,m,;
14, Plaintiff shall bring the subject minor children to church in time for services;
15, Plaintiff shall have July 4111 In 1998 from 1 :00 p,m. until 7:00 p,m,;
16. Plaintiff shall have four hours during the subject minor children's birthday;
17, Defend.lIlt shall have Mother's Day from 1 :00 p.m, until 7:00 p.m,
18, Plaintiff has violated the subject Orders of Court on the following days, in the following
manners:
Date Vlol@fum. Time at Issue
05/16/1999 Late for Church Services 15 minutes
03/07/1999 Late for Church Services 5 minutes
02/21/1999 Late for Church Services 5 minutes
02/07/1999 Late for Church Services 15 minutes
01/24/1999 Late for Church Services 10 minutes .,"
01/10/1999 Late for Church Services 17 minutes
01/10/1999 Late Returnin!l Children 23 minutes
01/08/1999 Picked Children UP Late 10 minutes
01/01/1999 Kavlieah's Birthdav - Never Used Allotted Time 240 minutes
12/2'111 998 Late for Church Services 10 minutes
12/13/1998 Late for Church Services 10 minutes
11/01/1998 Late for Church Services 8 minutes
10/04/1998 Late Returning Children 17 minutes
09/20/1998 Late for Church Services 20 minutes
08/09/1998 Late Returning Children 90 minutes
08/01/1998 Matthew's Birthday - Never Used Allotted Time 240 minutes
07/26/1998 Late for Church Services 15 minutes
07/26/1998 Late Ret~rning Children 20 minutes
07/04/1998 4"' of Julv - Never Used Allotted Time 360 minutes
OS/24/1998 Picked Children up l.ate ~Inutes
1. minutes
19, Of special note, Plaintiff failed to return the subject minor children fOf Mother's Dayan
(1) As a p3rt of the visits rEJterenced in this sedon, Gregory Cox
agrees to taJ<e the Children to Sunday s81'Vices at the
Newville Churc:h of the 8rettlren and pld< the Children up
after the services.
d. Gregory Cox shall have a four (4) hour period on any day agreed
dunng the wecaI< at each child's birthday; and
4. In addition to the preceding visitation schedule, the parties have agreed to
provide VISitation dunng holidays as provided herein:
a. The parties shall alternate Memonal Day, the Fourth at July and
Labor Day. In 199B, Kim Blrgensmlth shall have Memonal Day and
Labor Day. In 1999, Gregory Cox shall have Mamonal Day and
Labor Day. The parties WIll alternate this schedule each year.
These VISitS shall be from 1 :00 p.m. until 7:00 p.m.
(1) In the event any of Gregory CoX's holidays. as set forth in the
preceding paragraph. should tall on a Monday which
immediately follows his regularly scheduled weekend ViSit,
that weekend's visit shall extend from Friday at 6:00 p.m. until
Monday at 7:00 p.m.
5. The remwnirlg holidays shall be apportioned as provided herein:
a. Thanksgiving shall be broken into two segments. KIm Blrgensmith
shall have custody of the Children on Thanksgiving Dcy until 1:00
p,m. Father will have ClJStcdy of the Children on Thanksgiving Day
from 1 :00 p.m. until 7:00 p.m.
b. Chnstmas shall bit brokan into two sagm~. Kim 81rgonsmrth shall
have custody of the Children on Christmas Day IJl1tjI 1 :00 p.m.
FattIer will have CU3tCdy at the Chtldren on Christmas Day 1rcm 1 :00
p.m. until 7:00 p,m.
c. Irrespoctlve tu the foregoing, Fathers Day shall be wrth Fattter, and
Mothers Day shall be with Mother, and this visitation shall be fTcm
1 :00 p.m. until 7:00 p.m. or as otherwi!e agreed upon by the partios
due to thetr work schedules.
6. The holiday schedule shall take precedence over all ottler regularly
scheduled vIsitation.
7, In 1998, Gregory Cox shall be entitled to the follOWing vacation sch9dule:
a. Gregory Cox shall be entrtled to visitation beginning on July 5. 1998
through July 11, 1998.
b. Kim 8irgensmlth shall deliver the children each day during said
panod to Gregory Cox atter he completes work.
c. The children shall remain with Gregory Cox until the following
morning when f(jm Birgen:smith shall pic!< the kids up.
d. This procedure will continue until July 11, 1998.
@ In 1999, Gregory Cox shall be entitled to two non-<:onsecutlve weeks of
uninterrupted visits during the children's summer vacatlon.
(f) Beginning in 2000 and each year thereafter, Gregory Cox shall bel entitled
to three non-<:onsea.rtlve weeks at lJl11nt8mJpted visits dUling the children's summ..
vacatlon.
"
..
PYS510
1997-06919
Cumberland County Prothonotary's Office
Civil Case Inquiry
COX GRf.GORY (vs) BIRGENSMITH K~MBERLY
Page
1
Reference 1'/0,.:
Csse Type....,: PETITION - CUSTODY
Judgment.l....: ,00
Judge Ass gned: HESS KEVIN A
Disposed Desc. :
------------ Case Comments -------------
Fl1ad........ :
Time...,..... :
Execution Date
Jury 'rrial. . . .
Disposed Date.
Higher Crt 1.:
Higher Crt 2.:
12"/16/1997
2:39
0/00/0000
0/00/00(11)
.**.......**.........*..**........................................~'.........*.*.
General Index Attorney Info
COX GREGORY PETITIONER KAYER JAMES J
441 NORTH COLLEGE STREET
CARLISI.!;; PA 17013
BIRGENSMITH KIMBERLY RESPONDANT RUSSO PETER J
416 BLOSERVILLE ROAD
NEWVILLE PA 17241
.............................*.....*.*.*...**....~..............................
* Date Entries *
....................*.....**.....***.***.***....**........t....**...............
12/16/1997
12/18/1997
1/28/1998
1/28/1998
4/13/1998
6/08/1998
10/02/1998
10/14/1998
12/11/1998
2/23/1999
3/05/1999
3/12/ 1999
- - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - -
PETITION F'OR CUS'rODY
---------------------.----------------------------------------------
O~DER OF COURT - DATED 12/17/97 - IN RE PETITION FOR CUSTODY -
PREHEARING CUSTODY CONFERENCE 2/5/98 10:30 AM 4TH FLOOR CONFERENCE
ROOM CUMBERLAND COUNTY COURTHOUSE - BY HUBERT X GILROY ESO CUSTODY
CONCILIATOR - NOTICE AND COPIES MAILED 12/18/97
---------------------------------.--------------------------------_.~
PRAECIPE FOR WITHDRAWAl, OF APPEARANCE FOR DE~"ENDANT BY MICHAEL A
SCHERER ESO
-------------------------------------------------------------------
PRAECIPE FOR ENTRY OF APPEARANCE FOR DEFENDANT BY PETER J RUSSO ESO
-------_.~----------------------------------------------------------
CONCILIATOR CONFERENCE SUMMARY REPORT AND ORDER - DATED 4/9/98 -
HEAR~NG 6/3/98 9:30 AM CR 4 - BY KEVIN A HESS J - COPIES MAILED
4/13/98
-------------------------------------------------------------------
ORDER - DATED 6/5/98 - BY KEVIN A HESS J - COPIES MAILED 6/8/98
-------------------------------------------------------------------
PETITION FOR EMERGENCY RELIEF
---------..---------------------------------------------------.------
ORDER OF COURT - DATED 10/12/98 - IN RE PETITION FOR EMERGENCY
RELIEF - PREHEARING CUSTODY CONFERENCE 12/3/98 10:30 AM 4TH FLOOR
JURY DELIBERATION ROOM CUMBERLAND COUNTY COURTHOUSE - BY HUBER X
GILROY ESO CUSTODY CONCILIATOR - NOTICE AND COPIES MAILED 10/14/98
------------------------..------------------------------------------
CONCILIATOR 50NFERENCE SUMMARY REPORT AND ORDER - DATED 12/11/98 -
HEARING 2/18 99 9:30 AM CR 4 - BY KEVIN A HESS J - COPIES MAILED
12/14/98
-------------------------------------------------------------------
ORDER - DATED 2/22/99 - IN RE MOTION FOR MODIFICATION - BY KEVIN A
HESS J - NOTICE MAILED 2/23/99
-------------------------------------------------------------------
MOTION FOR RECONSIDERATION
-------------------------------------------------------------------
RULE TO SIIOW CAUSE - DATED 3/12/99 - IN RE MOTION FOR
RECONSIDERATION - RULE IS ISSUED UPON RESPONDENT RETURNABLE WITHIN
20 DAYS OF THIS DATE - HEARING 4/22/99 1:30 PM CR 4 - BY KEVIN A
HESS J - NOTICE MAILED 3/15/99
- - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - -
...............***.*..**...************....*******.*......*.....................
* Escrow Information *
. Fees & Debits Bea Ba1 Pvmts/Ad1 End Bal *
.....*.*.**~...*...**...........f.*.*...*~...**.,*..***......~................*.
PE'rITION
TAX ON PETITION
SETTLEMENT
JCP FEE
CUSTODY FEE
35.08
.5
5.08
5.0
4.00
35.00
.50
5.00
5.00
4.00
:88
:88
.00
GREGORY COX,
Plaintiff
IN TIlE COURT OF COMMON PLE^S OF
CUMBERLAND COUNTY, PENNSYL V ^NI^
vs.
97-6919 CIVIL
CIVIL ACTION. L^ W
KIMBERL Y BIRGENSMITH
Dtll'clHJunt
IN CUSTODY
IN RE: MOTION FOR MODIFICATION
ORDER
AND NOW, this
ZL~ duy of February, 1999, the existing custody ordcr in this
casc is ll10dilicd to provide that:
I. Thc parent who has custody of the children shall permit rcasonablc tclcphonc contact
by the childrcn with the parcnt thcn out of custody; and
2. When Christmas tails on a weekcnd which would otherwi~e bc sd\cdulcd for the
tathcr's custody, thc mother shall havc custody of the childrcn commcncing at 6:00 p.m. on
Christmas Evc when Christmas tails on a Saturday and at 8:00 a,m, on Christmas Day when
Christmas tails on a Sunday,
In all othcr respccts thc dcfendant's motion for modilication is DENIED,
BY THE COURT.
Ad
James Kayer. Esquire
For the Plaintiff
Peter Russo, Esquire
For the Defendant
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Prothonotary
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-
......
04/09/99
1552
SUPER TOR COURT OF PENNSYLVANIA
OFFICIAL DOCKET
DOCI<ET II 00635MDA99
FULL CAPTION
001E GREGORY COX I
V
002'1' KIMBERLY BIRGENSMITH
COUNSEL
72897 PETER J RUSSO
61 WEST LOUTHER STREET
CARLISLE, PA 17013
50838 .iAMES J KAYER
4 EAST LIBERTY AVENUE
LIBERTY LOFT
CARLISLE, PA 17013
CONSOLIDATED DOCKET NUMBER
,
BACKGROUND DATA
TRIAL COURT RECORDS
CATEGORY: .
COURT NAME:
COUNTY:
JUDICIAL DIS'rRICT:
CASE TYPE/CHARGE:
TRIAL COURT CHARGES:
JUDGE (S) :
DISPOSITION TYPE:
DISPOSITION DATE:
APPEAL FILE DATE:
DISPOSITION ENTERED:
TRIAL CRT DOCKET NO. :
OFFENSE TRACKING NO. :
TITLE
FOR MAIL
002'1' Y
717-249-2721
001E Y
717-243-7922
CV
CIVIL
CUMBERLAND
09
CUSTODY/VISITATION
HESS, K
ORDER ENTERED
02/22/99
03/23/99
02/23/99
97-6919 CIVIL TERM
STATUS INFORMATION
04/23/99 DOCKETING STATEMENT DUE
05/02/99 LOWER COURT RECORD DUE
DOCKE'r ENTRIES
04/09/99 NOTICE OF APPEAL
04/09/99 DOCKBTING STATEMENT EXITED
T=APPELLANT E=APPELLEE
*=COURT APPOINTED
FOR
002'1'
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Pluil',tiff: The Defendant's husbund at that time con/erred with the Dclcndunt und replied to the
Pluintill' over the telephone thut the Defcndant wus cognizulIl of this Ihct und ugreeuble to it.
20. Admitted in purt und denied in pan. It is udmittcd thut the Defcndunt attempted
to COlllact Plaintiff' by telephone when he was not at home on Muy 9, 1999, It is unknown us to
what pluns the mother had for Mother's Day. as she had never communicated those pluns to the
Plaintiff and he therefore denies that Portion of the averment. By way of further answer,
Plulntiff: as is required under the Court \'.Irdcr. turned the children over to the Mother on the
momlng of Muy 9, 1999 so that they could attend church together. When the PluintilT picked thc
children up from church at approximately II :30 on May 9, 1999, neither the Defendant nor hcr
I
husband made any reference to arrangements for the Plaintitl'to return the children for any othcr
portion of the Mother's Day Holiday.
21, Denied, Based upon the parties' oral agreement to trade weekends, the Plaintill's
'Jse of the weekend that ineluded the Mother's Day Holiday was not a violation of the existing
Court Order, PlaintilT is unaware as to whether the Defendant had to cancel her Mother's Day
pluns.
WHEREFORE, the Defendant requests this Honorable Court to find in the Plaintiff's
favor and dismiss the Defcndant's petition for contempt.
COUNTER PETITION FOR SPECIAL RELIEF
22. Paragraphs I - 21 of the Plaintiff's response to petition for contempt arc incorporated
herein as if fully stated.
23. Defendant's husbund, Mark Birgensmith, contacted the PlaintilTby telephone on
April 29, 1999 and advised him that the Defcndant's father had recently passed away.
24. During that telephone conversation, the Defendant's husband requested the PlaintifT
to "trude weekends" with the Defendant. Although she was not a party to the telepholH:
conversation, Defendant's voice was audible to the Plaintiff in the background as he spoke with
Detendant's husband.
25. During the April 29, 1999 telephone conversation, the Plainiiff reminded
the Defendant's husband that trading weekends would involve the Plaintiff receiving the use of
(he Mother's Day Holiday, and PIlIintiff wished to confiml jpecifically whether it WllS the
intention of the Defendunt to volulltllrily waive her right to that holiday.
26. Defendant audibly agreed to these tenns, and Dc!endant's husband specifically
agreed to those terms during the parties' April 29, 1999 telephone conversation.
27, Pursuant to the parties' agreement, the Plaintill'allowed the Defendant to maintaill
physical custody of the children from Friday April 30, 1999 until Sunday May 2, 1999 (his
regularly scheduled weekend), pursuant to the oral agreement reached between the parties on
April 29,1999,
28, In reliance upon the Defendant's husband's representations made on April 29,1999,
Plaintiff arrived to pick up the children on Friday May 7, 1999, The children were turned ovcr
without incident and no mention was made as to specific arrangements for Mother's Day (May 9,
1999).
29. Plaintiff dropped the children off at Church on Sunday morning, May 9, 1999 as he
is required to do so on his normally scheduled weekends. When he picked the children up from
church at II :30 a.m., on May 9, 1999, neither Defendant, nor her husband made any request,
demand or other statement relating to special arrangements for a custody transler relating to the
Mother's Day holiday,
30. Plaintiffreturned the children to the Defendant at his normal and customury time on
Sunday evening. May 9, 1999. This custody transler occurred without incident.
31. On February 22, 1999. this Court issued 1111 Order relating to the Delendant's
Petition lar Emergency Relief and Contempt that had been t1led on October 2. 1998.
32, The October 2, 1998 Petition lor Emergency Relief and Contempt included specific
allegations concerning the Plaintiff's lack of timeliness in returning the children to church
services, and picking the children up late from custody transfers and returning the children late to
custody transfers and not utilizing specified periods of time reserved lor the Plaintiff's on the
children's birthdays and holidays.
33. This Court's February 22, 1999, Order dismissed the Defendant's Petition of October
2, 1999, after a hearing on all issues addressed in that petition.
34. The Defendant in her May 28, 1999 Petition for Contempt includes specific
allegations that were addressed in the Court's February 21,1999 Order, specifically, 18 of the 20
alleged violalions listed by the Defendant predate that order,
35. The Defendant tiled a motion to reconsider the Court's February 22, 1999 Order on
or about March 5, 1999. The Court in its April 22, 1999 Order denied any further requests for
modification of the existing custody order with the exception of establishing a notice provision
regarding the Plaintiffs periods of summer visitation.
36. The Defendant initiated an appeal of the Court's February 22, 1999 Order on or
about April 22, 1999, That appeal was subsequently voluntarily withdrawn,
37. The Defendant is attempting to relitigate issues already presented to this Court in her
prior Petition for Emergency Relief, and already decided by the trial judge.
38, The Court is authorized pursuant to 42 I'a, C.S.A. 2503 to award counsel fees as a
sanction for dilatory. obdurate or vexatious conduct.
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Kayer and Brown
Attorneys At Law
A Professional Oorporatlon
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Liberty Loft
4 E. Liberty Avenue
C~~llel." Penneylvenla 17013
Peter RUSBO
,16 W. Louther Street
Carllslo PA 17013
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K.yer .nd Brown
Attorneys At Law
A Professional Corporation
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KA 'fER ANt> BROWN
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Carlisle, Pennsylyania 17013
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