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HomeMy WebLinkAbout03-1444NATHAN C. DIEHL, Plaintiff, Vo MELISSA G. BURKETT, Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03 - m~ CML ACTION- LAW CUSTODYMSITATION COMPLAINT FOR CUSTODY Plaintiff is NATHAN C. DIEHL, whose current address is 330 Greason Road, Carlisle, West Pennsboro Township, Cumberland County, Pennsylvania. 2. Defendant is MELISSA G. BURKETT, whose current residential address is 30 Dead End Lane, Newburgh, Cumberland County, Pennsylvania. 3. Plaintiffis the Father, and Defendant is the Mother of the Child who is the subject of this action. 4. Plaintiff seeks shared legal and primary physical custody of: Cody James DieM, Date of Birth: July 18, 2001 Nalne: Present Residence: 330 Greason Road, Carlisle, County, Pennsylvania The child was bom out of wedlock. o West Peunsboro Township, Cumberland The Child presently resides his father, the Plaintiffherein, at 330 Greason Road, Carlisle, West Pennsboro Township, Cumberland County, Pennsylvania. From birth until March 16, 2003, the Child lived at 330 Greason Road, Carlisle, Cumberland County, Pennsylvania, with his mother and father. From March 16, 2003, to present, the Child has lived with his father and paternal grandparents, Gary and Olive Diehl, and paternal uncle, Gary Diehl, Jr., at 77 South High Street, Newville, Cumberland County, Pennsylvania, and with Plaintiff at 330 Greason Road, Carlisle, West Pennsboro Township, Cumberland County, Pennsylvania. 8. Plaintiffhas no information of a custody proceeding concerning the Child pending in a court of this Commonwealth. 9. The best interests and permanent welfare of the Child will be served by the relief requested. 10. Plaintiffhas not participated as a party, wimess or in another capacity or in other litigation concerning the custody of the Child in this or another Court. 11. Plaintiff currently lives with his son, Cody. 12. To the best of Plaintiff s knowledge, Defendant either lives with her grandparents, William and Doris Burkett, at 11575 Stonewall Road, Shippensburg, Cumberland County, Pennsylvania, or her parents, Keith and Deb Fetter, 30 Dead End Lane, Newburgh, Cumberland County, Pennsylvania. WItEREFORE, Plaintiff respectfully requests that the court grant the parties shared legal custody, that Plainfiffbe awarded primary physical custody of his son, Cody, and that Defendant be awarded temporary physical custody to be determined. Respectfully submitted, GOLDBERG, KATZMAN & SHIPMAN, P.C. By: Paul~. E2t~(osito, Esquire 320 Market Street, Post Office Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Plaintiff 93203.1 VERIFICATION I verify that the statements contained in the foregoing COMPLAINT FOR CUSTODY are tree and correct to the best of my knowledge, information and belief. I understand that false statements contained herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. / / NATHAN C. DIEHL NATHAN C. DIEHL PLAINTIFF Vo MELISSA G. BURKETT DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBEP~AND COUNTY, PENNSYLVANIA 03-1444 CIVIL ACTION LAW IN CUSTODY ORDER OF COURT AND NOW, Thursday, April 03, 2003 , upon consideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear before Melissa P. Greevy, Esq. , the conciliator, at 301 Market Street, Lemoyne, PA 17043 on Monday, April 28, 2003 at 9:00 AM for a Pre-Hearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute; or if this cannot be accomplished, to define and narrow the issues to be heard by the court, and to enter into a temporary order. All children age five or older may also be present at the conference. Failure to appear at the conference may provide grounds for entry of a temporary or permanent order. The court hereby directs the parties to furnish any and all existing Protection from Abuse orders, Special Relief orders, and Custody orders to the conciliator 48 hours prior to scheduled hearing. FOR THE COURT. By: /s/ Melissa P. Greevy, Esq. Custody Conciliator The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilites Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. YOU SHOULD TAKE THIS PAPER TO YOUR ATTORNEY AT ONCE. IF YOU DO NOT HAVE AN ATTORNEY OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 ViNVA"IASN[~8 NATHAN C. DIEHL, Plaintiff/Respondent MELISSA G. BURKETT, Defendant/Petitioner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION- LAW NO. 03-1444 IN CUSTODY PETITION FOR EMERGENCY RELIEF 1. Defendant/Petitioner is Melissa G. Burkett, who currently resides at 11575 Stonewall Road, Shippensburg, Cumberland County, Pennsylvania, 17257. 2. Plaintiff/Respondent is Nathan C. Diehl, who c~m'ently resides at 330 Greason Road, Carlisle, Cumberland County, Pennsylvania, 17013. 3. The parties are the parents of one minor child: Cody Diehl (d.o.b. 07/18/2001). 4. On March 16, 2003, Defendant moved out of the residence where they were cohabitating. At that time, Plaintiff removed the minor child and since that time has continued to refuse Defendant access to the minor child. 5. For the past three months, as well as the majority of the minor child's life, Defendant has been the primary caretaker for the minor child. 6. Plaintiff has never shown any interest in the minor child until the separation and does not know how to adequately care for the minor child. child. 8. minor child. Plaintiff continues to refuse to allow Defendant to haw~ contact with the minor Plaintiff's residence is inadequate to provide for 'the nurturing and care of the The residence at 330 Greason Road has no furnitm:e, beds, and may lack power. Document it: 265688.1 9. Defendant is concerned that the minor child will be irreparably harmed if allowed to stay in these conditions. 10. Defendant is concerned that Plaintiff will continue to refuse to allow her access to the minor child. 11. It is in the best interest of the minor child to be recruited with his mother who has been the primary caretaker since birth. WHEREFORE, Defendant/Petitioner respectfully requests thk,; Honorable Court for the following relief: (1) Enter an Emergency Order instructing the Plaintiff/Respondent to return the minor child to the Defendant/Petitioner; (2) Enter a Temporary Order limiting the Plaintiff/Respondent's partial physical custody to visitation; and (3) Any other relief deemed just and appropriate frown the Court. Dated: Respectfully submitted, METZGER, WICKERSHAM, K2qAUSS & ERB, P.C. By Andrew C. Spears, Esquire Attorney I.D. No. 8:7737 P.O. Box 5300 3211 North Front Street Harrisburg, PA 17110-0300 (717) 238-8187 Attorneys for DefendantA~etifioner Document #: 265688.1 -2- VERIFICATION I, Melissa G. Burkett, verify that the statements made in the foregoing Petition for Emergency Relief are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. {}4904, relating to unsworn falsification to authorities. Dated: Melissa G. Burkett Document #: 265688.1 CERTIFICATE OF SERVICE I, Andrew C. Spears, Esquire, of the law f'urn of Metzger, Wickersham, Knauss & Erb, P.C., hereby certify that I served a tree and exact copy of the Petition for Emergency Relief with reference to the foregoing action by first class mail, postage prepaid, this/~ r~day of April, 2003, on the following: Paul J. Esposito, Esquire Goldberg, Katzman & Shipman, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 C. Spears, Document #: 265688.1 NATHAN C. DIEHL, Vo MELISSA G. BURKETT, Plaintiff · Defendant · IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION- LAW NO. 03-1444 IN CUSTODY ANSWER TO COMPLAINT FOR CUSTODY AND NOW, this ~5'~ay of April, 2003, comes the Defendant, Melissa G. Burkett, by and through her attorney, Andrew C. Spears, Esquire, of the law firm of Metzger, Wickersham, Knauss & Erb, P.C., and presents the following: 1. Admitted. 2. Denied. Melissa G. Burkett currently resides at 11575 Stonewall Road, Shippensburg, Cumberland County, Pennsylvania, 17257. 3. Admitted. 4. No response required. 5. Admitted based upon information and belief that Plaintiff currently resides at 330 Greason Road, Carlisle, West Pennsboro Township, Cumberland County, Pennsylvania. As to the remaining averments, Defendant is without knowledge to form answers to the averments of paragraph 5 and they are specifically denied. 8. Admitted based on information and belief. 9. Denied. On the contrary, Defendant, Melissa G. Burkett, has been the primary caretaker for the minor child since birth. In addition, Defendant, Melissa G. Burkett, is in the best position financially and emotionally to provide a stable and responsible environment for the Document #266729 raising of the minor child. access to the minor child. 10. 11. 12. Also, Plaintiff has taken the minor child and has refused Defendant No response required. Admitted based upon information and belief. Denied. Defendant, Melissa G. Burkett, currently resides at 11575 Stonewall Road, Shippensburg, Cumberland County, Pennsylvania. WHEREFORE, Defendant, Melissa G. Burkett, respectfully requests that this Court enter an Order denying Plaintiff's Complaint in Custody and giving Defendant primary physical custody of the minor child with Plaintiff-Father permitted periods of visitation. COUNTERCLAIM FOR CUSTODY 1. The Defendant, Melissa G. Burkett, is an adult individual currently residing at 11575 Stonewall Road, Shippensburg, Cumberland County, Pennsylvania, 17257. 2. The Plaintiff, Nathan C. Diehl, is an adult individual currently residing at 330 Greason Road, Carlisle, Cumberland County, Pennsylvania, 17013. 3. Defendant seeks primary physical custody and shared legal custody of the following minor child: Name Present Address Date of Birth Cody Diehl 330 CJreason Road 07/18/2001 Carlisle, PA 17013 Plaintiff and Defendant are the natural parents of the above mentioned minor child. Document #266729 -2- The minor child was bom out of wedlock. The minor child is presently in the custody of Plaintiff who resides at 330 Greason Road, Carlisle, Cumberland County, Pennsylvania, 17013. Since birth, the minor child has resided with the following persons at the following addresses: Name Melissa G. Burkett Nathan C. Diehl Nathan C. Diehl Address 330 CJreason Road Carlisle, PA 17013 330 Greason Road Carlisle, PA 17013 Date From birth to 03/16/2003 03/16/2003 to present The mother of the minor child is Defendant, Melissa G. Burkett, who currently resides at 11575 Stonewall Road, Shippensburg, Cumberland County, Pennsylvania, 17257. The father of the minor child is Plaintiff, Nathan C. Diehl, who currently resides at 330 Greason Road, Carlisle, Cumberland County, Pennsylvania, 17013. 4. The relationship of Plaintiff to the minor child is that of natural father. The Plaintiff resides with the following persons: Name Relationship Gary Diehl Father Olive Diehl Mother Gary Diehl, Jr. Brother Cody Diehl Son 5. The relationship of Defendant to the minor child is that of natural mother. The Defendant currently resides with the following persons: -3- Document #266729 Name Relationship William and Doris Burkett Maternal Grandparents 6. Defendant has no information of a custody proceeding concerning the minor child pending in a court of law of this Commonwealth. Defendant does not know of a person not a party to the proceedings who has physical custody of the minor child or claims to have custody or visitation with respect to the minor child. 7. The best interest and permanent welfare of the minor child will be served by granting the relief requested because: (a) Defendant, Melissa G. Burkett, is in the best position, both financially and emotionally, to provide a stable and responsible environment for the raising of the minor child; (b) Defendant, Melissa G. Burkett, has been the primary caretaker of the minor child since birth; (c) Plaintiff, Nathan C. Diehl, has taken the minor child and refused Defendant access to the minor child; (d) The residence where Plaintiff is living is unsuitable for the raising and maintenance of the minor child; and (e) The best interest and permanent welfare of the minor child will best be served by maintaining a relationship with his mother. Document #266729 -4- 8. Each parent whose parental rights to the minor child have not been terminated and the person who has physical custody of the minor child have been named as parties to this action. METZGER, WICKERSHAM, KNAUSS & ERB, P.C. Dated: Andrew C. Spears, Esquire Attorney I.D. No. 87737 P.O. Box 5300 3211 North Front Street Harrisburg, PA 17110-0300 (717) 238-8187 Attomeys for Defendant Document #266729 -5- VERIFICATION I, Melissa G. Burkett, verify that the statements made in the foregoing Answer to Complaint for Custody are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unswom falsification to authorities. Dated: Melissa G. Burkett Document #266729 CERTIFICATE OF SERVICE I, Andrew C. Spears, Esquire, of the law firm of Metzger, Wickersham, Knauss & Erb, P.C., hereby certify that I served a tree and exact copy of the Answer to Complaint for Custody with reference to the foregoing action by first class mail, postage prepaid, this Lq'~day of April, 2003, on the following: Paul J. Esposito, Esquire Goldberg, Katzrnan & Shipman, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Andrew C.'S~pears, Esquire Document #266729 NATHAN C. DIEHL, Plaintiff MELISSA G. BURKETT, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-1444 CIVIL TERM ORDER OF COURT AND NOW, this 24th day of April, 2003, upon consideration of Defendant's Petition for Emergency Relief, it is ordered and directed, pending the custody conciliation conference and further order of court, with respect to the parties' child, Cody James Diehl (d.o.b. July 18, 2001), as follows: 1. Legal custody of the child shall be shared by the parties; 2. Physical custody of the child shall be shared by the parties on an alternating weekly basis, from Friday at 6:00 p.m. until the following Friday at 6:00 p.m., with Defendant's first weekly period to commence on Friday, April 25, 2003. 3. Nothing herein is intended to preclude the parties from varying the terms of this arrangement by mutual agreement. ,,~aul J. Esposito, Esq. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Attorney for Plaintiff ~/Andrew C. Spears, Esq. P.O. Box 5300 3211 North Front Street Harrisburg, PA 17110-0300 Attorney for Defendant BY THE COURT, i/ ~esley Ole~,-J~., J. irc GOLDBE~G, KATZ~-AN & SHn'~N, P.C. 320 Market Street, P.O. Box 1268 Hanisburg PA 17108-1268 Attorneys for Plaintiff NATHAN C. DIEHL, Plaintiff, Vo MELISSA G. BURKETT, Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 03-1444 : : CIVIL ACTION - LAW : CUSTODY/VISITATION ACCEPTANCE OF SERVICE I, Andrew C. Spears, Esquire, hereby accept service of the Complaint for Custody filed on March 28, 2003, in behalf of Melissa G. Burkett, Defendant in the above-captioned action, and acknowledge that I am authorized to do so. Date: ~.~ ~.~t~ ,2003 Andrew C. Spears, Esquire APR 2 0 ~003 ~' NATHAN C. DIEHL, Plaintiff MELISSA G. BURKETT, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-1444 CIVIL TERM CIVIL ACTION - LAW IN CUSTODY OLER, J.--- ORDER OF COURT AND NOW, this ~ day of ~¥~, 2003, upon consideration of the attached Custody Conciliation Summary Report, it is hereby ordered and directed as follows: 1. This Court's previous Order of April 24, 2003 is VACATED. 2. Shared Leqal Custody. The parties, Nathan C. Diehl and Melissa G. Burkett, shall have shared legal custody of Cody James Diehl, born July 18, 2001. Each parent shall have an equal right, to be exercised jointly with the other parent, to make all major non-emergency decisions affecting the child's general well-being including, but not limited to, all decisions regarding his health, education and religion. Pursuant to the terms of Pa. C. S. §5309, each parent shall be entitled to all records and information pertaining to the child including, but not limited to, medical, dental, religious or school records, the residence address of the child and of the other parent. To the extent one parent has possession of any such records or information, that parent shall be required to share the same, or copies thereof, with the other parent within such reasonable time as to make the records and information of reasonable use to the other parent. 3. Physical Custody. The parties shall share physical custody on an alternating week basis. Mother's first custodial week begins April 28, 2003 following the conference. Father's first custodial week begins on May 5, 2003. Custodial exchanges shall take place on Sundays or Mondays. In the event that Father is working the 6:00 p.m. to 6:00 a.m. shift, the exchange time shall be at 12:00 noon on Monday of his custodial week. If Father is working the 6:00 a.m. to 6:00 p.m. shift, the exchange time shall be at 6:30 p.m. Sunday of Father's custodial week. 4. Transportation. The party receiving custody shall provide transportation. NO. 03-1444 CIVIL TERM 5. If the parent not having custody has a day off or is available during the day due to the way that their shift is scheduled and the custodial parent is working, the non- custodial parent may have additional custodial time while the custodial parent is working. For instance, if Father is off on a Wednesday and Mother works from 1:00 p.m. to 9:00 p.m. that day, then Father may have additional custodial time during Mother's work hours. The parties may vary from terms of this Agreement by their expressed mutual consent. BY THE COURT: Dist: ~ . , , . . , a Esposito Esquire P O Box 1268 Harrisburg, PA 17108-1268 ,,,~A~rew C. Spears, Esquire, P.O. Box 5300, Harrisburg, PA 17110-0300 NATHAN C. DIEHL, Plaintiff MELISSA G. BURKETT, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-1444 CIVIL TERM CIVIL ACTION - LAW IN CUSTODY CUSTODY CONCILIATION SUMMARY REPORT IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE 1915.3-8, the undersigned Custody Conciliator submits the following report: 1. The pertinent information concerning the child who is the subject of this litigation is as follows: NAME Cody James Diehl DATE OF BIRTH July 18, 2001 CURRENTLY IN THE CUSTODY OF Mother and Father 2. Father filed a Complaint for Custody on March 28, 2003. The Custody Conciliation Conference was scheduled for April 28, 2003. Father filed an Answer to the Complaint for Custody on April 16, 2003 and filed a Petition for Special Relief which was followed by an April 24, 2003 Order of Judge Oler directing shared physical custody on an alternating week basis, commencing April 25, 2003. The Order also directed shared legal custody. Attending the Conciliation Conference were: the Father, Nathan C. Diehl, and his counsel, Paul J. Esposito, Esquire; the Mother, Melissa G. Burkett, and her counsel, Andrew C. Spears, Esquire. 3. The parties reached an agreement in thegn Order as attached. [' D~~te' ''~' '~'{~-'~ ~s~~~/" )is - ' ' Greevy, Esquire Custody Conciliator :212695