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HomeMy WebLinkAbout03-2385 Btam? &GRoss, LLC. AITORIVE~ AND COUNSELLOR~ AT .LAW 29 EAST PHILADELPHIA SrRE£T YORK, PA 17401 717.848.3078 F/,X 717.848.2777 WWW. BLAKEGROSSLA W. COM IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNT.Y, PENNSYLVANIA ROSALIE E. WALTERS : No. 2003- ,,~ Plaintiff · vs. : CIVIL ACTION - LA~ STEVEN A. SMITH and : MELISSA A. SMITH : IN CUSTODY qL. Defendants : ky CUSTODY COMPLAINT ~.':~:' E~i.Walters, AND NOW, this i,(~'~i, ay of May, 2003, comes the Plaintiff, RosCOe by and through her attomey, Ronald I. Gross, Esquire, of Blake & Gross, LLC., and files this CUSTODY COMPLAINT; to wit: 1. Plaintiff, hereinafter "Grandmother," is an adult individual residing at41 Smith Road, Gardners, Pennsylvania, Cumberland County, 17324. Defendant Steven A. Smith, hereinafter "Father," is an adult individual presently incarcerated at SCI Camp Hill, P.O. Box 200, Camp Hill, PA 17001. 3. Defendant Melissa A. Smith, hereinafter "Mother," is an adult individual residing at 604 N. Baltimore Avenue, Apartment I, Mt. Holly Springs, Pennsylvania, Cumberland County, 17065. Mother and Father are the natural parents of the minor child, Alisha Destiny Smith, Date of Birth November 25, 2001. Grandmother seeks visitation of the following child: Name Age Current Residence Alisha Destiny Smith 18 months Mother The child was bom out of wedlock. The child is presently in the custody of Mother, address of 604 N. Baltimore Avenue, Apartment I, Mt. Holly Springs, Pennsylvania, Cumberland County, 17065.- BL4KE & Gaoss, L.L.C. ATTORNEYS AND COUNSELLORS AT LAW ?9 EAST PHILADELPHIA STREET YOlk, PA 174O1 717.848.3078 Fax 717.848.2777 WVF~. BLAKEGROSSLAW. COM During the past five (5) years, the child has resided with the following persons and at the following addresses: Persons Addresses Dates. Mother Carlisle Springs 11/01-1/02 Mother, Grandmother and her husband - John Walters 41 Smith Rd. Gardners, PA 17324 1/02-3/02 Mother present address 3/02-present from Father. Mother. The Mother of the child is Melissa A. Smith; She is married but separated The Father of the child is Robert A. Smith; He is married but separated from e The relationship of Plaintiff to the child is that of Paternal Grandmother. The Plaintiff currently resides with her husband JOHN WALTERS. The relationship of Defendant Mother to the child is that of natural Mother. The Defendant Mother resides alone. The relationship of Defendant Father to the child is that of natural Father. The Defendant Father is presently incarcerated in Camp Hill and will be released in June 2003. o Grandmother has not participated as a party or witness, or in another capacity in other litigation concerning the custody of the child in this or another Court. Plaintiff has no information of a custody proceeding concerning the child pending in a Court of this Commonwealth. Plaintiff does not know of a person not a party to the proceedings who has physical custody of the child or claims to have custody or visitation rights with respect to the child. o The best interest and permanent welfare of the child will be served by granting the relief requested because: (a) Grandmother has been involved with raising the child since the child's Bt. aKE & GROSS, L.L.C ATTORNEYS AND COUNSELLORS AT LAW EAST PHIIMDELPHIA STREET YORK,, PA 17401 717. 848. 3078 Fax 717.848.2777 ~q)~T~. BLAKEGROSSI~4 W, COM birth as her son, Father, has been incarcerated since October 2001. Grandmother has resided with the child and has had ongoing and frequent contact with the child since the child's birth; and Grandmother is seriously concerned that the Defendant Mother will leave Pennsylvania for Indiana because she has no family in the area and her grandmother, Dorothy Levenberg resides at 8315 Parkview Avenue, Munster, IN 46321. This allegation is supported by the fact that Mother has cleared her apartment and given multiple items of property back to Plaintiff's mother thereby creating the belief that she is ready, willing and able to leave at any moment. Further, Defendant Mother has threatened to keep the child from Plaintiff and that Plaintiff will not see the child. Each parent whose parental rights to the child have not been terminated, and the person who has physical custody of the child have been named as parties to this action. All other persons, named below, who are known to have or claim a right to custody or visitation of the child will be given notice of the pendency of this action and the right to intervene: N/A WHEREFORE, Plaintiff respectfully requests This Honorable Court grant her Visitation of the minor child and specifically ORDER THAT DEFENDANT MOTHER SHALL NOT LEAVE PENNSYLVANIA UNTIL A HEARING ON THE MERITS OF THE PETITION IS HEARD. RESPECTFULLY SUBMITTED: Attorr~ey]D NO. 80594 Attornk~ for Plaintiff BLAKE & GROSS, LLC 29 E. Philadelphia Street York, PA 17401 (717) 848-3078 AFFIDAVIT ~j~ '~ '~"~ _ %erify. that the statements made in this are true and correct. I undergta~d that false statements herein are made subject to the penalties of 18 PA C.S., Section 4904, relating to unsworn falsification to authorities. ~ATE/ / ~ DATE ROSALIE E. WALTERS PLAINTIFF STEVEN A. SMITH AND MELISSA A. SMITH DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 03-2385 CIVIL ACTION LAW IN CUSTODY ORDER OF CO[JRT AND NOW, Friday, May 23, 2003 , upon consideration, of the attached Complaint, it is hereby directed that parties and their respective counsel appear before Hubert X. Gilroy, Esq. , the conciliator, at 4th Floor, Cumberland County Courthouse, Carlisle on Thursday, June 19, 2003 at 2:00 PM 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/ Hubert X. Gilroy, 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 ltELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (71. 7) 249-3166 ROSALIE E. WALTERS, Plaintiff STEVEN A. SMITH and MELISSA A. SMITH Defendant · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, 'PENNSYLVANIA · CIVIL ACTION - LAW 'CUSTODY · NO. 03- 2385 CIVIL TERM CERTIFICATE OF SERVICE I, Erin L. Benson, Certified Legal Intern, Family Law Clinic, hereby certify that I am serving a true and correct copy of Praecipe to Enter Appearance on Ronald J. Gross, Esquire, at 29 East Philadelphia Street, York, Pennsylvania, 17401, by depositing a copy of the same in the United States mail, First Class, postage prepaid, this 29 ~ day of May, ,,003. Erin L. Benson Certified Legal Intern THE FAMII.y LAW CLINIC 45 North Pitt Street Carlisle, PA 17013 (717) 243-2968 ROSALIE E. WALTERS, Plaintiff Vo STEVEN A. SMITH and MELISSA A. SMITH Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, :PENNSYLVANIA : CIVIL ACTION - LAW :CUSTODY : NO. 03- 2385 C, IVIL TERM PRAECIPE TO ENTER APPEARANCE To the Prothonotary: Please enter the appearance of the Family Law Clinic on behalf of Melissa A. Smith, the Defendant in the above captioned matter. Date: May 29, 2003 Erin L. Benson Certified Legal Intern ROBEI~ E. ~MNS THOMAS M. PLACE Supervising Attorney LUCY JOHNSON-WALSH Staff Attorney FAMILY LAW CLINIC 45 North Pitt Street Carlisle, PA 17013 717/243-2968 717/243-3639 ROSALIE E. WALTERS, Plaintiff STEVEN A. SMITH and, MELISSA A. SMITH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, : PENNSYLVANIA : CIVIL ACTION - LAW : CUSTODY : NO. 03- 2385 CIVIL TERM PRELIMINARY OBJECTIONS OF DEFENDANT M~,I,ISSA A. SMITH TO THE CUSTODY COMPLAINT PURSUANT TO PaR. CP.§ §1028(5) AND 1915.15 AND NOW, this 12th day of June, 2003, comes the Defendant, Melissa A. Smith, in the above-captioned case, pursuant to Pa.R.C.P. § §1028(5) AND 1915.15, and files these preliminary objections to the Custody Complaint based on lack of capacity of Plaintiffto bring this action, and avers in support as follows: 1. The instant matter before the Court is a custody action. 2. Plaintiff(hereinafter "Grandmother") is the paternal grandmother of the subject child, Alisha Destiny Smith, (hereinafter "the Child"). 3. Defendant Steven A. Smith (hereinafter "Father") is the father of the Child. 4. Defendant Melissa A. Smith (hereinafter "Mother") is the mother of the Child. 5. Grandmother does not have standing to pursue the above-captioned matter pursuant to 23 Pa.C.S. §5311-§5313. 6. According to 23 Pa.C.S. §5313(a), grandparents may petition for visitation when the child has resided with his or her grandparents for 12 months or more and is subsequently removed from the home by his/her parents. Not even Grandmother's Custody Complaint avers that the child resided with her for 12 months, but rather only from January 2002 to March 2002 during a period when Mother temporarily resided with her. Complaint, paragraph 3. 7. A parent with legal custody of her child has the basic and fundamental right to raise her child as she sees fit, without unwarranted government intrusion or interference from third parties. Ken R v. Arthur Z., 546 Pa. 49, 682 A.2d 1267 (1996). 8. In Troxel v. Granvill~e, 120 S. Ct. 2054 (2000), the Supreme Court affirmed the Washington State Supreme Court by declaring Washington's non-parental visitation statute unconstitutional as applied to a claim by grandparents seeking to visit their deceased son's children. 9. The plurality in Troxel noted that the state should not be able to interfere with the private realm of the family when the parent is fit and acts in the best interest of the child. Id__: at 2079 The plurality explained that "the Due Process Clause does not permit a state to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a 'better'decision could be made" Id_~ at 2082. 10. The Supreme Court of Pennsylvania decided in R.M.v. Baxte~r, 565 Pa. 619 (2001) that 23 Pa. C.S. §5313 confers automatic standing upon a grandparent to seek physical and legal custody of a grandchild. However, the Baxter case did not address any state or federal constitutional rights of parents to raise their children free from unwarranted interference. 11. If the Grandparents' Visitation Act, 23 Pa.C.S. §§5311-5313 is interpreted to give standing to Plaintiffto bring this action, then on its face and as applied, the Act 13. violates the Constitutions of Pennsylvania and the United States by compromising the fundamental right ora parent to raise his or her child without unwarranted interference from the government or third parties. Defendant Melissa A. Smith i~ giving notice of this pleading on the Attorney General of Pennsylvania in accordance with Pa. R.C.P. 235 by serving it and a copy of the complaint upon him by registered mall. WHEREFORE, Defendant Melissa A. Smith respectfully requests this Court: 1) Rule that Plaintiff does not have standing pursuant to the Grandparents' Visitation Act, 23 Pa.C.S.§§5311-5313, or 2) Rule that if the Grandparents' Visitation Act does confer standing on Plaintiff, then on its face, or as applied, it violates the Pennsylvania Constitution, or Rule that if the Grandparents' Visitation Act does confer standing on Plaintiff, then on its face, or as applied, it violates the United States Constitution, and 3) 4) Dismiss this action with prejudice. Date: Respectfully submitted, Erin L. Benson Certified Legal Intern LUCY(JqH2X~ TON-WALSH ROBERT E. RAINS THOMAS M. PLACE Supervising Attorneys FAMILY LAW CLINIC 45 North Pitt Street Carlisle, PA 17013 (717) 2434-2968 Counsel for Defendant Melissa A. Smith ROSALIE E. WALTERS, Plaintiff : 1N THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, : PENNSYLVANIA STEVEN A. SMITH and, MELISSA A. SMITH : CIVIL ACTION - LAW · CUSTODY : NO. 03- 2385 CIVIL TERM CERTIFICATE OF SERVICE I, Erin L. Benson, hereby certify that on this 13th day of June, 2003, I am serving a tree and correct copy of the Preliminary Objections Of Defendant Melissa A. Smith To The Custody Complaint Pursuant to Pa. KC.P. §§ 1028(5) And 1915.5 on the following people at the following addresses, by first class U.S. mail: Ronald J. Gross, Esq. Blake & Gross, LLC 29 East Philadelphia St. York, PA 17401 Steven A. Smith State Correctional Institution At Camp Hill P.O. Box 200 Camp Hill, PA 17001 I also certify that I am serving the same by U.S. registered mail on: PA Attorney General Michael Fisher 16th Floor Strawberry Square Harrisburg, PA 17120 Date: June 13, 2003 Erin L. Benson Certified Legal Intern FAMILY LAW CLINIC 45 N. Pitt St. Carlisle, PA 17013 717-243-2968 ROSALIE E. WALTERS, · IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA STEVEN A. SMITH AND MELISSA A. SMITH, DEFENDANTS : 03-2385 CIVIL TERM ORDER OF COURT .day of June, 2003, defendant, Melissa A. Ronald J. Gross, Esquire For Plaintiff Family Law Clinic For Melissa A. Smith Steven A. Smith Hubert Gilroy, Esquire Custody Conciliator :sal the challenge to standing. Edgar B. Ba'yll~ AND NOW, this Smith, having filed a preliminary objection to the complaint in custody of plaintiff, Rosalie E. Walters, challenging plaintiff's standing, and a conciliation conference currently being scheduled for June 19, 2003, IT IS ORDERED that the case shall proceed to conciliation. If there is no resolution the case shall be forwarded by the conciliator to the court for disposition, and the court will schedule a hearing to include JUL 0 9 2003 ROSALIE E. WALTERS, Plaintiff V STEVEN A. SMITH and MELISSA A. SMITH, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW : : NO. 2003 - 2385 CIVIL : : IN CUSTODY CO~TO~ER ANDNOW, this t~ dayof ~x~,~,,^ ,2003, upon consideration of the attached Custody Conciliation RepOt; i~ i~)ordered and directed as follows: 1. The Mother, Melissa A. Smith, shall enjoy legal and physical custody of Alisha Destiny Smith, born November 25, 2001. Pending further order of this court, the Paternal Grandmother, Rosalie E. Walters, shall enjoy periods of temporary visitation with the minor child as follows: A. On June 28, 2003 from 10:00 a.m. until 5:00 p.m. Also, on July 19, 2003 from 10:00 a.m. until 5:00 p.m. and alternating Saturdays thereafter during the same timeframe. The parties may modify this time if they agree between themselves. Absent an agreement between the parties, the time shall be in accordance with this order. Mother shall provide all transportation for exchange of custody by delivering the minor child to the Paternal Grandmother's home. A hearing is scheduled in Courtroom ~o. 2 of the Cumberland County Courthouse, on the ~/(:/Niay of _.~L/~ ,2..?}3 at ~9 ,( .M. At this hcaring,~he I~ternal Grandmother, Rosalie E. Walters, shall be the moving party and shall proceed initially with testimony. Counsel for the parties shall file with the court and opposing counsel a memorandum setting forth the history of custody in this case, the issues currently before the court, each parties position on the issues, a list of witnesses who will be called to testify at the hearing and a summary of the cc: anticipated testimony of each witness. Additionally, this memorandum shall address legal arguments with respect to Paternal Grandmother's standing to seek visitation in this case and with respect to the criteria this court should apply in determining whether a grandparent is entitled to visitation. This memorandum shall be filed with the court at least five (5) days prior to the mentioned hearing date The Preliminary objections filed by the Defendant Mother shall be addressed at the hearing scheduled above. The fact that the hearing is scheduled does not suggest that the preliminary objections are dismissed or otherwise disposed of. This order may be filed also at Docket Number 03 - 2389, and the proceedings at that Docket Number shall be incorporated with the proceedings at Docket Number 03 - 2385 above. / B THE CO T/ Edgar B. Bayley Ronaid J. Gross, Esquire Erin L. Benson Dickinson School of Law Family Law Clinic StevenA. Smith ROSALIE E. WALTERS, Plaintiff V STEVEN A. SMITH and MELISSA A. SMITH, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW : : NO. 2003 - 2385 CIVIL : : IN CUSTODY Prior Judge: Edgar B. Bayley CONCILIATION CONFERENCE SUMMARY REPORT IN ACCORDANCE WITH THE CUMBERLAND COUNTY CIVIL RULE OF PROCEDURE 1915.3-8C0), the undersigned Custody Conciliator submits the following report: The pertinent information pertaining to the child who is the subject of this litigation is as follows: Aiisha Destiny Smith, born November 25, 2001. A Conciliation Conference was held on June 19, 2003, with the following individuals in attendance: The Paternal Grandmother, Rosalie W. Walters, with her counsel, Ronald J. Gross, Esquire; and the Mother, Melissa A. Smith, with her counsel, Erin L. Benson, of the Dickinson School of Law Family Law Clinic. Robert Rains, Esquire also attended on behalf of the Law Clinic. The Father was not in attendance. He is incarcerated and has been out of the child's life essentially since the day the child was born. This is a paternal grandmother seeking visitation. The Mother has filed preliminary objections. The conciliator determined that the Paternal Grandmother has had some contact previously with the minor child including periods where she babysat the child and other times. The conciliator consulted with Judge Bayley and determined that a hearing was necessary in this case. The conciliator suggested that the Paternal Grandmother should experience limited visitation with the minor child pending the hearing, pursuant to a schedule as set forth in the attached proposed order. DATE The conciliator recommends the entry of an order in the for. ga as attached. ROSALIE E. WALTERS, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, : PENNSYLVANIA : CIVIL ACTION - LAW : CUSTODY STEVEN A. SMITH and IVIELISSA A. SMITH Defendants : NO. 03- 2385 CIVIL TERM o~0COURT AND NOW, this [~ day 3, upon the request for continuance by counsel for the Defendant, Melissa A. Smith, and with concurrence of Plaintiff's counsel, Ronald Gross, Esq., the hearing previously scheduled for July 24, 2003 at 9:30 a.m. is continued. It is hereby directed that the parties and their respective counsel appear for a hearing scheduled in Courtroom 2 of the Cumberland County Courthouse .~' on the 14t~ of August, 2003 Edgar B. Bayley cc: Ronald J. Gross, Esq. Erin L. Benson Dickinson School of Law Family Law Clinic Steven A. Smith ROSALIE E. WALTERS, Plaimiff STEVEN A. SMITH and MELISSA A. SMITH Defendant : 1N THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, : PENNSYLVANIA : CIVIL ACTION - LAW : CUSTODY : NO. 03- 2385 CIVIL TERM CERTIFICATE OF SERVICE I, Erin L. Benson, Certified Legal Intern, Family Law Clinic, hereby certify that I am serving a tree and correct copy of the Order of Court dated July 16, 2003 on Defendant Steven A. Smith at SCI Greene, 175 Progress Drive, Waynesburg, PA 15370, and to Ronald J. Gross, Esq., counsel for the Plaintiff, at 29 East Philadelphia Street, York, Pennsylvania, 17401 by depositing a copy of the same in the United States mail, First Class, postage prepaid on July 18, 2003~ Date: Erin L. l~enson Certified Legal Intern FAMILY LAW CL1NIC 45 North Pitt Street Carlisle, PA 17013 (717) 243-2968 ROSALIE E. WALTERS, Plaintiff STEVEN A. SMITH and MELISSA A. SMITH Defendants : IN THE COUW[' OF COMMON PLEAS OF : CUMBERLAND COUNTY, : PENNSYLVANIA CIVIL ACTION - LAW CUSTODY : NO. 03- 2385 CIVIL TERM CUSTODY AGREEMENT THIS AGREEMENT, made this XD-'~a'Xlay of ~ ~5~C, 2003, between Rosalie E. Walters, hereinafter "Grandmother" and Melissa A. Smith, hereinafter, "Mother", concerns the custody of Alisha Destiny Smith, hereinafter, "the child", born November 25, 2001. Melissa A. Smith and Steven A. Smith, hereinafter, "Father", are the natural parents of the child. Mother and Grandmother desire to enter into an agreement as to the custody of the child as follows: 1. Mother shall have sole legal custody of the child and primary physical custody of the child. Grandmother shall have periods of visitation with the child which may occur at Grandmother's home or other place of mutual convenience, every other Saturday from 9:00 a..m to 6:00 p.m. The day and times of the visitation may be modified by mutual consent of Mother and Grandmother. Mother shall provide all transportation for Grandmother's visitation by delivering the minor child to Grandmother's home or other mutually agreed location. If Mother decides to change her and the child's residence from Cumberland County, Pennsylvania, she shall give Grandmother as much advance notice as possible. Neither Mother nor Grandmother shall speak ill, or allow others to speak ill, of each other in the child's presence. Father is not a party to this agreement, and this agreement does not purport to set forth any rights or responsibilities of Father vis-a-vis the child. Mother and Grandmother acknowledge that they have read and understand the provisions of this Custody Agreement. Mother and Grandmother desire that this Custody Agreement be entered as an Order of the Court of Common Pleas of Cumberland County. Mehssa X. Smith Rosalie E. Walters Erin L. Benson Certified Legal Intern OBERT E. RA1NS THOMAS M. PLACE Supervising Attorneys LUCY JOHNSTON-WALSH Staff Attorney FAMILY LAW CLINIC 45 North Pitt Street Carlisle, PA 17012 (717) 243-2968 Counsel for Melissa A. Smith Blal~ & Gross, LLC 29 East Philadelphia St. York, PA 17401 (717)848-3078 Counsel tbr Rosalie E. Walters BLA~ & GROSS, L.L.C. COUNSELLORS Ar L~W EAST PHILADELPHIA STREET Yo, el~ PA 17401 7125848.3078 Fax 71Z848.2777 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ROSALIE E. WALTERS Plaintiff VS. STEVEN A. SMITH and : MELISSA A. SMITH : Defendants : No. 03-2385 CIVIL ACTION - LAW IN CUSTODY ORDER AND NOW, this ~, day of ~ 2003, upon consideration of the attached Custody Agreement that has been signed and acknowledged by the respective parties, it is HEREBY ORDERED that the terms and conditions contained in the attached Custody Agreement in the above captioned matter is entered as an Order of Court. ROSALIE E. WALTERS, Plaintiff STEVEN A. SMITH and MELISSA A. SMITH Defendants : 1N THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, : PENNSYLVANIA : : CIVIL ACTION - LAW : CUSTODY : : NO. 03- 2385 CIVIL TERM pRAECIPE TO WITHDRAW APPEARANCE AND NOW, this ~4~'day of A/~o03' the Family Law Clinic withdraws its appearance on behalf of the Defendant, Melissa Smith. Date: Respectfully submitted, Erin L. Benson Certified Legal Intern · RAiNS ~ THOMAS M. PLACE ANNE MACDONALD-FOX Supervising Attorneys FAMILY LAW CLiNIC 45 North Pitt Street Carlisle, PA 17013 (717) 243 - 2968 _PRAECIPE TO ENTER APPEARANCE AND NOW, this o~6~ day of~(x/w,~c.¥2003, Timothy Colgan, hereby enters his appearance on behalf of the Defendant, Melissa Smith. Respectfully submitted, Date: Timothy Cd~m_..J ~ 130 West Church Street, Suite 100 Dillsburg, PA 17019 BLAK~ & GROSS, L.L.C. ATTORNRYSAND COUNSELLORS AT LAW 29 EAST PHIIMDELPH[A STREET YORK,, PA 17401 71Z848.3078 FAX 71Z848.2777 WWW. BLAKEGROSSL411ZCOM IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ROSALIE E. WALTERS Petitioner VS. STEVEN A. SMITH and MELISSA A. SMITH Respondents No. 03-2385 CIVIL ACTION - LAW IN CUSTODY PETITION FOR SPECIAL RELIEF AND NOW, this ~l~'day of December, 2003, comes the Petitioner, Rosalie E. Walters, by and through her attorney, Ronald J. Gross, Esquire, of Blake & Gross, LLC., and files this Petition for Special Relief; to wit: 1. Petitioner, hereinafter "Grandmother," is an adult individual residing at41 Smith Road, Gardners, Pennsylvmxia, Cumberland County, 17324. 2. Respondent Father, Steven A. Smith, hereinafter "Father," is an adult individual presently incarcerated at SCI Greene, 175 Progress Drive, Waynesburg, PA 15370. Respondent Mother, Melissa A. Smith, hereinafter "Mother," is an adult individual with the last known .address of 604 N. Baltimore Avenue, Apartment I, Mt. Holly Springs, Pennsylvania, Cumberland County, 17065. The parties entered into a Custody Agreement dated August 15, 2003 whereby Plaintiff was entitled to custody of the child every other Saturday from 9:00 a.m. until 6:00 p.m. A copy of said agreement is attached hereto as Exhibit "A.' Said agreement was entered as an Order of Court on November ,2003. Mother was to provide transportation of said child to and from the visitation periods with Grandmother. Mother has failed to provide the child to Grandmother on three consecutive BLaK~ & GROSS, L.L.C. ATTORNEYS AJVD COUNSELLORS Al' LAW 29 EAST PHILADELPHIA STREFT Yom~, I~A 17401 71Z848.3078 Fax 71Z 848.2777 WWW, BLA~EGROSSLAW, COM visits on September 27, October 11 and October 25, 2003. 8. In addition, the undersigned counsel has received notice from Mother's counsel on December 2, 2003 that she will be relocating to Indiana in the near future as she is fearful of the Father once he is released from prison. A copy of said letter is attached hereto as Exhibit "B.' 9. In addition, counsel has received faxes dated December 3rd and 5m regarding Mother's approval to transfer probation to Indiana and that it may benefit her. Copies of said letters are attached hereto as Exhibits "C' & "D.' 10. Mother's alleged fear of Father does not have an impact upon the time spent with Grandmother, Petitioner herein. 11. Pursuant to the Agreement, Paragraph 4, Mother has provided notice of relocating from Cumberland County, Pennsylvania. 12. The understanding of the parties when entering into the Agreement in August 2003 was that Grandmother would not be "cut-off" from the child. 13. The actions of Mother are designed to alienate Grandmother and her family from the child, her granddaughter. WHEREFORE, Petitioner prays this court to take the following action: A. Order the Mother to remain in Cumberland County pending a hearing; B. Schedule a hearing of the merits of the herein Petition is necessary; C. Order make up time to the Grandmother; and D. Order such additional relief as the Court deems necessary. BLAKE & GROSS, L.L.C. By:~ iR. oD.hades, Esquire 29 East Philadelphia Street York, Pennsylvania 17401 (717) 848-3078 Attorney for Petitioner, Grandmother ROSALIE E. WALTERS, Plaintiff STEVEN A. SMITH and MELISSA A. SMITH Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLANI) COUNTY, : PENNSYLVANIA : CIVIL ACTION - LAW : CUSTODY : NO. 03- 2385 CIVIL TERM CUSTODY AGREEMENT AGREEMENT, made this [~'day of ~t, 2003, between Rosalie E. Walters, THIS hereinafter "Grandmother" and Melissa A. Smith, hereinafter, "Mother", concerns the custody of Alisha Destiny Smith, hereinat~er, "the child", born November 25, 2001. Melissa A. Smith and Steven A. Smith, hereinafter, "Father", are the natural parents of the child. Mother and Grandmother desire to enter into an agreement as to the custody of the child as follows: 1. Mother shall have sole legal custody of the child and primary physical custody of the child. 2. Grandmother shall have periods of visitation with the child which may occur at Grandmother's home or other place of mutual convenience, every other Saturday from 9:00 a..m. to 6:00 p.m. The day and times of the visitation may be modified by mutual consent of Mother and Grandmother. 3. Mother shall provide all transportation for Grandmother's visitation by delivering the minor child to Grandmother's home or other mutually agreed location. 4. If Mother decides to change her and the child's :residence from Cumberland County, Pennsylvania, she shall give Grandmother as much advance notice as possible. Neither Mother nor Grandmother shall speak ill, or allow others to speak ill, of each other in the child's presence. Father is not a party to this agreement, and this agreement does not purport to set forth any rights or responsibilities of Father vis-a-vis the child. Mother and Grandmother acknowledge that they have read and understand the provisions of this Custody Agreement. Mother and Grandmother desire that this Custody Agreement be entered as an Order of the Court of Common Pleas of Cumberland County. Mehssi 2. Smith Rosalie E. Walters Erin L. Benson Certified Legal Intern THOMAS M. PLACE Supervising Attorneys LUCY JOHNSTON-WALSH Staff Attorney FAM1LY LAW CLINIC 45 North Pitt Street Carlisle, PA 17012 (717) 243-2968 Counsel for Melissa A. Smith York, PA 17401 (717)848-3078 Counsel for Rosalie E. Walters 12/02/2003 04:58 FAX 7174320426 . The Wiley Group ~001/001 Dawd - ,~ ~ Wiiov [.oi'lox. ~ol~t;tl/ ~ MFII?'Z,tCCO. ZC December 2. 2003 facsimile transmission ltl'7~ 848-2777 Ronald J. lb'ess. Faqmre Blake & Gross. LL( 29 East Philadelphia Sired York, PA 1741) 1 Rosahe !-.. ~ nlte~s xs. Slexd~ A. Sn th aid Me] ss; A. Smith No. 03-2385 ('ix il I'errn Deal' Roll Plcasc be advised thai I nave r)ccn returned Io rcpresenl Mclissa A, Smith with regard h) ;lie Custody Agrcemenl bchveeu her and Rosalie F. Walters. As you may know Ms. Srnilh is on probalion fi'om clnames that arose while she was still in a rclalionship with your client's son Slevon gmilk Mr. 5milh has been incarceraled at gel Green since (}clohor 25~ 200t. Il is my cite ~/'s belief Ibal he is liD 1}}t' parole again lilts month Mr. Smith x~ ns iucredJbl> abusive to my client anm a}}er much consultation whh her lhmiIy, it is her imcm ~o relocate I~ack 1o Indiana ~o move on wid] her lilb m order re provide a more slable and loving environment Ibr Alish~ To that end. she has received permission Ii'nm her Adams County probation officer. Bob Bennett. to rclocale m mc slate of Indiana. Mr_ Benne/t will contintlc 1,, supervise her on a lllail.- m basis through mc cxpu'alion of her ira)ballon hl Jill5 al2004. Ms. Smiff} has arrived at Ibis decision aJier consultation wid~ the Vtct m Advocale Program. Ibc York (oum) Assistant District Auorney. and her probation officers ['he Agrcemem Ilia/Ma. Smith mid Ms. WMters signed earlier/his year reqoucs that Ms. Smith provide as much ndice lo Ms Walters as possible regarding any change ill residence. As a condition of her rO}OCaI/OD to hldianfl al)d coitlilluod supervmlol% her probalJon oJ'licm has indicated dmt mc relocali m nmsl h~kc pmcc as ouickly as posqihte Please consider tiffs letter linc notlce requu'ed under tile ]grccmenl of the paints. 1 It) V~ [hun--.btrl-,c Suil(, Il " DIINI)nr , t~t) (it/? 42bl)- vax: 17 412.0426 Otfk es 12/02/2003 05:07 FAX 7174320426 ,The Wiley Croup ~001 Ro~ald J. 6ross~ Esquire Re: Rosalie k'. Wailers w ,qtcvell A. Smith and Melissa A. Smilln l)cccmber 2. 2003 Pag. e 2 Should you need further informalion, please do nol hesilate It) contact Very tru/5 yours ¥~,ILI',Y. 1.EN()X. £( 1~( AN & M,SI>.Z21A( (O P.C by 'l'imofl~y J. ('otgan TJ(;/sam cc: Melissa A. Smith 12/03/2003 05:51 FAX 7174320426 The Wiley Group I FI L ~9(/I I.LY (, R()I TP Wiley Lenox, ('olgan & Marzzacco. P,C, ~ 001 Decen/b ~r _L 2003 ~ t 7) ~4~--2777 Ronald J. (]ross Esquire Blake ~ ( nx~ss, lAX 29 Easl Philadeh>hia S~rcc~ York. PA 17401 Re: Rosalie IL. ¢ alice- vs. ~,lever~ A, h;m;lh and Mci ssa A. Smith No. 03-2385 Civil !cr,r Dca Ron Enclosed nlcas;c 1'md a capy ofa te!ler 1 lecei'vcd from I]}is S7~ hi who is a Legal Advoc ne with the Vid im AqslslaDco ('ODIuF Fe~lr([Jll~ tile above-ct~ pllollod II'ltlllOl' ally qttcSiIOll5 rcgardn~g thc oncJosed~ please do not hesitate to COll[acl lilt, Very Iruly vours. WII,EY Lt_~NOX, COl GAN ~: MAP.~,Z&( ( O. P.C, If you have 'l'J('/sam cc: Melissa A. Smilh 12/03/2003 05:52 FAX 7t74320426 The WJi!ey Group [~002 De~ 03 03 O~:~lp V~cti~ ~$~stancCenter ?]784~'~3~l ictim ssistance enter t)ecember 3, 2003 To wl~ om it may col cern As a l,egal Advocate with lhe V' ' ' ' - ~cl~m Ass slm~ce (,enter, I've been working with Melissa Smith. A~er discussing Melissa's situalitm with the York County's [)islricl Attorney's ( fl'~ce ~1 s been determined it would be best fbr Mclissa Io leave the York County area fbr her safety and the sa~*ty of her ch/Idret~ Sincerely, P.O. IIOX 30, ¥Ol1|(, PA 17405 · (717) 854-3131 o Fax (717) 846~6321 · 14',(10-422d204 (2,1 IIOIII1S) ~, 12/05/2003 01:42 FAX 7174320426 .The WJley Group ~ 001 T]~II~ WII.,I~Y (~,R()1 J P Wi pv. Lenox. Co]~an & Marzzac{o. P,C. De,z~:ml cr _. 2003 1717~,48~2, Ronald J, Gross, l.,sq au'c Blake & Gross lAX 29 East Philadelphia gtrecl York PA 17401 Re: Rosalie E. Wailers vs Sleven A. Smiflq and Metissa A. Smith N ( ) l 03-2385 Civil Term Dear Ron: Enclosed please find a cop3 of a leltcr I received ii'om ('had Sprarfl(le, ]rltens~ve buperwsmn Ollicer with/l~c l)eDnrlmcnl of A Jalt Probation and Parole in Adams (.ounty, with regard to my client, Melissa A. Smffh. ll'you have any questions regarding the enclosed, please do Ilol hesitate to COlqtao/: Vcu~ mdy yours, WII,EY~ I,EN()X_ ('OI,GAN & MARZZA('('( L P.C. l'.lC/sam cc: Mci issa A. Smith b5, 'Fimolhy ,1, Col~2an 12/05/2003 0i:43 FAX 7174320426 The Wiley Group o,:18 RDU~T PROBATION , 17+33Z1+16~3 Department of Adult Probation and Parole Adams County Courthouse Suite 302 111-117 Baltimore Street GetWsburg, PA 17325 ~ OO2 P, 02 December~ 5, 2003 Mi'. Timothy J. Colgan, Esq. Wiley Gronp 130 West Ckm.ch St. Suite 100 Dillsburg, PA 17019 RE: Mi~LISSA ANN SMITH Dear Mr. Colgan: Melissa Ami Smith meets the requirements to be ehgible for transfer to another State, The State transfer packet was completed on December 1~ 2003 by the Adan~s County Probation Departrnent. Malissa Ama Sm/th has been issued a provisional travel pass allowing her to reside in a other state while the trax~sfer is being reviewed by the accepting ~tate. The provisional tra~:el pass is effective December 5~ 2003. Sincerely, Chad Sprankle Intensive Sapm~ision O/:~&cer ROSALIE E. WALTERS, PLAINTIFF STEVEN A. SMITH AND MELISSA A. SMITH, DEFENDANTS : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : 03-2385 CIVIL TERM ORDER OF COURT AND NOW, this ~(::) day of December, 2003, the petition of Rosalie E. Walters for special relief, IS DENIED WITHOUT A HEARING.1 vR'/onald J. Gross, Esquire For Plaintiff ,/'Timothy J. Colgan, Esquire For Melissa A. Smith :sal Edgar B. Bay~.~ ~ The petition does not set forth any facts which would enable the paternal grandmother to prevent relocation by the mother with her daughter Alisha Smith, born November 25, 2001, who is in her physical custody pursuant to an order of November 21, 2003. If the mother relocates and the current order of visitation is impractical, the grandmother may petition under 23 Pa.C.S. Section 5313(a) to seek another order of partial custody/visitation as may then be warranted and Practical. ROSALIE E. WALTERS, Plaintiff STEVEN A. SMITH AND MELISSA A. SMITH, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, COMMONWEALTH OF PENNSYLVANIA 03-2385 CIVIL TERM CUSTODY PETITION FOR EMERGENCY RELIEF PURSUANT TO Pa. R.C.P. 1915.4(e) and PETITION FOR CUSTODY MODIFICATION UNDER 23 PaC.S. ~5313(a) PURSUANT TO ORDER OF THIS COURT DATED DECEMBER 30, 2003 and PETITION FOR CONTEMPT PRELIMINARY STATEMENT 1. The child who is the subject of this custody action is Alisha Destiny Smith, D.O.B. November 25, 2001, a two (2) year-old child, almost three (3) year-old child (Child). 2. Plaintiff is Rosalie E. Waiters (Plaintiff), who resides at 41 Smith Road, Gardeners, Pennsylvania, 17324. 3. Plaintiffis the Paternal grandmother of the child who is the subject of this custody action. 4. Named Defendants are Steven A. Smith, Father of the Child (Defendant Father), and Melissa A. Smith, Mother of the Child (Defendant Mother). 5. For the purposes of this Petition and further proceedings in this custody matter, Defendant Father sides with Plaintiff's cause. 6. Defendant Father currently resides with Plaintiff at 41 Smith Road, Gardeners, Pennsylvania, 17324. 7. Defendant Mother is believed to reside at 8315 Parkview Avenue, Munster, Indiana, 46321, County of Lake, Indiana. 8. It is known that Defendant Mother and Child are currently staying in Munster, Lake County, Indiana. 9. As will be further explained, Plaintiff and Defendant Father contend that the State of Indiana is not the Home State of Child. PROCEDURAL HISTORY 10. On or about May 18, 2003, this custody action was initialed in Cumberland County, Commonwealth of Pennsylvania, with Plaintiff's Custody Complaint. 11. Defendant Mother filed Preliminary Objections on or about June 12, 2003, challenging Plaintiff's standing as a Grandparent, to initiate a custody action. 12. This Court's June 17, 2003, Order ushered the case to Conciliation on July 3, 2003. 13. The July 3, 2003, Conciliation Conference Summary Report explains that "It]he conciliator consulted Judge Bayley and determined that a hearing was necessary in this case. The conciliator suggested that [Plaintiff] should experience limited visitation with [Child] pending hearing, pursuant to a schedule as set forth in the attached proposed order." (Exhibit A at Report ¶ 3.) 14. Plaintiff was granted periods of temporary visitation with the Child as a result of this Court's Order that was based upon the Conciliator's Report. (Exhibit A at Order ¶ 2.) 15. On August 15, 2003, Plaintiff and Defendant Mother entered into a Custody Agreement. (Exhibit B at Agreement.) 2 16. On November 21, 2003, the Custody Agreement was made a Custody Order (Visitation Order) by this Court. (Exhibit B at Order.) 17. On, or about, November 23, 2003, Defendant Mother relqased to obey this Court's Custody Order, and denied Plaintiff her periods of visitation. 18. On or about December 9, 2003, Plaintiff filed a Petition For Special Relief, warning this Court that Defendant Mother had failed to abide by the August 15, 2003, Custody Agreement. (Exhibit C at Petition ¶ 7.) 19. In addition, Plaintiff warned this Court that Defendant Mother had made preparations to flee this Court's jurisdiction with Child. (Exhibit C at Petition ¶ 8.) 20. In response to Plaintiff's Petition For Special Relief, this Court recognized that an Order for visitation was in effect, and that "[if Defendant Mother] relocates and the current order of visitation is impractical, [Plaintiff could] petition under 23 Pa. C.S. Section 5313(a) to seek another order of partial custody/visitation as may then be warranted and practical." (Exhibit C, Order Of Court at Fn 1 .) 21. Plaintiff's fears have been realized as she recently learned that Defendant Mother has left the Commonwealth of Pennsylvania with the Child. 22. It is known that Defendant Mother and Child now are present in the State of Indiana, and it is believed that they can be served at 8315 Parkview Avenue, Munster, Indiana, 46321. 23. On or about, September, 2004, Defendant Mother filed a Verified Petition To Domesticate Foreign Judgment And Transfer Jurisdiction And Petition For Custody Order in the Lake Superior Court Sitting at Gary Indiana. (Attached as Exhibit D.) FACTS 24. The Child was bom on November 25,2001, in Cumberland County, Pennsylvania. 25. At that time, Defendant Mother was a resident of Cumberland County, Pennsylvania. 26. Plaintiff, was involved in Child's life on a daily basis from Child's birth until May 2003, as is more thoroughly evidenced by: a) Plaintiff was present when the Child was born; b) Plaintiff and her husband provided a home for Child and Defendant Mother from December 2001 through April 2002; c) Plaintiffparticipated in Child's daily care from December 2001 through April 2002; d) Child was cared for by Plaintiffevery day Defendant Mother was at work during the period from April 2002 to May 2003; e) Plaintiff took Child to Child's Doctor's appointments during the period from Child's birth until May 2003; f) Plaintiff helped to buy groceries for Child during the period from Child's birth until May 2003; g) Plaintiff supplied Child with other financial support during the period from Child's birth until May 2003; h) Plaintiffhas nurtured Child at all times while Child was in her presence. 27. Throughout the period from Child's birth to May 2003, Defendant Mother regularly took Child to visit Defendant Father at Defendant Father's place of incarceration.~ These regular visits extended over a year and one-half, and were as frequent as the penal institution's rules 4 28. In May, 2003, Defendant Mother cut-offall communications with Plaintiff and Defendant Father. 29. It was at this time that Plaintiff initiated the pursuit of periods of visitation in this Court. 30. In July, 2003, prior to Defendant Mother and Plaintiff entering into a visitation agreement, Plalntiffagain began to be involved in Child's life, albeit on an almost- every-other Saturday basis. 31. After Defendant Mother and Plaintiffentered into the August 2003, Visitation Agreement, Plaintiff continued to be involved in Child's life, albeit on an almost- every-other Saturday basis. 32. The Visitation Agreement Defendant Mother and Plaintiff entered into explicitly provides that Defendant Mother and Plaintiff"desire that this Custody Agreement be entered as an Order of the Court of Common Pleas of Cmnbefland County." (Exhibit Bat¶SO 33. This Court made that Visitation Agreement a Visitation Order, which Order was entered November 21, 2003. (Exhibit B at Order.) 34. That Order has never been modified, and therefore is the current Visitation Order in force. 35. That Order grants Defendant Mother sole legal custody an~d primary physical custody of the Child. (Exhibit B at Agreement ¶ !.) 36. Plaintiff is granted every other Saturday visitation periods from 9:00 a.m. to 6:00 p.m. (Exhibit B at Agreement ¶ 2.) 37. Under the Order, Defendant Mother is to provide all transportation for Grandmother's visitation. (Exhibit B at Agreement ¶ 3.) 38. Defendant Father was not an active party to that agreement because he was incarcerated at the time? 39. After this Court made the visitation Agreement an Order of this Court, Plaintiff and Child enjoyed only one period of visitation -- the day after the Order was entered. 40. Since that time, Defendant Mother has purposefully defied this Court's Visitation Order. 41. Defendant Mother, on or about November 23, 2003, begum to avoid communication with Plaintiff and when they did communicate, Defendant Mother refused to allow Plaintiff and Child to enjoy visits. 42. On December 2, 2003, Defendant Mother, through a letter from her Legal Counsel, I informed Plaintiff that Defendant Mother and Child would be relocating to Indiana. (Exhibit E.) 43. Neither Defendant Mother, nor her Legal Counsel, sought for modification of the Custody Order in place, nor did they asked this Court's permission to ignore that Order's mandate, granting Plaintiff every-other-Saturday visitation periods from 9:00 a.m. to 6:00 p.m. 44. On or about, September, 2004, Defendant Mother filed a Verified Petition To Domesticate Foreign Judgment And Transfer Jurisdiction And Petition For Custody Order in the Lake Superior Court Sitting at Gary Indiana. (Exhibit D.) 2 Defendant Father was incarcerated from October 25,2001 through Augu st 29, 2004. Defendant Father is now not incarcerated and in addition to Plaintiff, seeks to be involved in Child's life vis-a-vis periods of partial custody. 6 45. However, Defendant Mother did not inform the Lake Superior Court Sitting at Gary Indiana, in her Petition, that this Court had previously entered a Visitation Order. (Exhibit D.) 46. Defendant Mother refers only to the August 3003 Custody Agreement between Defendant Mother and Plaintiff. (Exhibit B at 4 and 12(A.)). 47. It is believed, and therefore averred, that Defendant Mot]her and Child have resided in Indiana for less than six months. 48. Plaintiff avers that the best interests of Child will be se~ed by this Court maintaining jurisdiction over this Custody Matter. 49. This is tree because Plaintiff, Defendant Father, and the Child have significant connections with this Commonwealth and there is available in this Commonwealth substantial evidence concerning the Child's present and t~ture care, protection, training, and personal relationships. 50. Child can be reared in this Commonwealth in a household that includes the presence of a loving Father, paternal-Grandmother, and paternal-step-Grandfather, as well as frequent visits from the paternal Great-grandmother. ARGUMENT COUNT ONE Petition For Emergency Relief Pursuant To Pa. R.C.P. 1915.4(e) 51. Paragraphs 1 through 50 are incorporated herein by reference as though set forth at length 52. "Nothing in [Pennsylvania Rule of Civil Procedure 1915.4(e) precludes] a party from seeking, nor a court from ordering, emergency or interim special relief at any time after the commencement of the action." Pa. R.C.P. 1915.4(e). 53. Defendant Mother has fled this Court's jurisdiction and has improperly invoked the jurisdiction of The Lake Superior Court, Room Number Three, Sitting At Gary, Indiana. 54. Defendant Mother misled the The Lake Superior Court, Room Number Three, Sitting At Gary, Indiana, by not informing that Court that this Court had previously exercised, and still has, jurisdiction over this matter. 55. Defendant Mother thereby attempts to deprive this Court of Jurisdiction over its November 2003 Visitation Order. 56. A hearing in this Court must be held immediately to determine not only if jurisdiction still lies with this Court, but also to address the other issues raised in this Petition. WHERFORE Plaintiff requests this Court to hold a heating ixnmediately to decide the question of jurisdiction and to address the other issues raised in this Petition. COUNT TWO A) Petition For Custody Order Modification Under 23 Pa. C.S. Section 5313(a) Pursuant To Order Of This Court Dated December 30, 2003 57. Paragraphs 1 through 56 are incorporated herein by reference as though set forth at length 58. Plaintiff hereby "petition[s this Court] under 23 Pa. C.S. Section 5313(a) to seek another order of partial custody/visitation as may be warranted and practical." (Exhibit B, Order Of Court at Fn 1 .) 59. The current visitation order entered by this Court on November 21, 2003, is impractical and a new visitation order is warranted. 60. The distance between Plaintiffand Child is such that visits on Saturday from 9:00 a.m. until 6:00 p. m. are no longer in the best interests of the Child. 61. The estimated distance Defendant Mother unilaterally moved Child from Plainfiffis 637.38 miles, and will take approximately ten hours and three minutes to travel. (See Mapquest printout attached as Exhibit F.) 62. Accordingly, Child will spend approximately twenty hours traveling for a nine hour visit. 63. Moreover, Defendant Mother, Plaintiff, and this Court found in the past that the best interests of Child would be served by allowing Child and Plaintiff to enjoy periods of visitation. 64. The best interests of Child will still be served by allowing Child and Plaintiff to enjoy periods of visitation. WHEREFORE, Plaintiff requests this Court to modify the current Visitation Order in a manner that is warranted, practical, and most of all, in the best interest of the Child. B) Invocation of Interstate Application 65. Paragraphs 1 through 64 are incorporated herein by reference as though set forth at length 66. Under the Uniform Child Custody Jurisdiction Act, which both Pennsylvania and Indiana have adopted in substantially the same language, a court which is competent to decide child custody matters has jurisdiction to make child custody order modifications if it is the home state of the Child. 23 Pa. C.S. §5344(a)(1)(i), A.I.C. 31-17-3-3. (Exhibit G, Exhibit H.) 67. Home state is defined as [t]he state in which the child immediately preceding the time involved lived with his parents, a parent or a person acting as parent, or in an institution, for at ][east [six] consecutive months, and, in the case of a child less than [six] months old, the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the [six-month] or other period. 23 Pa. C.S. §5343, A.I.C. 31-17-3-2(5). 68. Another alternative to such a court's exercise of jurisdiction to modify a custody order is if it is in the best interest of the child that a court of this Commonwealth assume jurisdiction because: (i) the child.., and at least one contestant, have a significant connection with this Commonwealth; and (ii) there is available in this Commonwealth substantial evidence concerning the present or future care, protection, training and personal relationships of the child[ .... 23 Pa. C.S. §5344(a)(2)(i) -(ii). A.I.C. 31-17-3-3(2)(providing the same language except for using State where Pennsylvania's law uses Commonwealth, and with different sub- section references, and punctuation). 69. And yet another alternative to such a court's exercise of jurisdiction to modify a custody order is if (i) it appears that no other state would have juriscliction under prerequisites substantially in accordance with paragraph (1), (2) or (3), or another state has declined to exercise jurisdiction on the ground that this Commonwealth is the more appropriate forum to, determine 10 custody of the child; and (ii) it is in the best interest of the child that the court assume jurisdiction .... 23 Pa. C.S. §5344(a)(4)(i)-(ii). A.I.C. 31-17-3-3(4)(providing the same language except for using State where Pennsylvania's law uses Commonwealth, and with different sub-section references, and punctuation). 70. This Court should exemise jurisdiction over this matter because the Child and Defendant Mother have not resided in Indiana for six munths and therefore Indiana is not the home state of the Child. 71. Child, Plaintiff, and Defendant Father have a significant connection with the Commonwealth of Pennsylvania, and them is available in this Commonwealth substantial evidence concerning the present or future care, protection, training and personal relationships of the child. 72. Child was born in Cumberland County, Pennsylvania. 73. Child was raised in Cumberland County, Pennsylvania up until a few months ago. 74. Plaintiff's relationship with Child has included, for extended times, daily care and financial support. 75. Plaintiffhas made continual efforts to be involved in the Child's life. 76. Defendant Father has had visits with the Child as often as his penal institution's rules have allowed. 77. Child has three generations of family in this Jurisdiction, a family that is ready, willing, and able to love, care, and nurture Child. 78. Moreover, this Court's jurisdiction lies within its November 2003 Visitation Order, 11 which Order is based upon Defendant Mother's implicit desire that the Court of Common Pleas of Cumberland County, Pennsylvania, exercise jurisdiction over this custody matter. WHEREFORE, Plaintiff requests this Court to maintain Jtm[sdiction over this Visitation proceeding. C) Invocation of Inconvenient Forum 79. Paragraphs 1 through 78 are incorporated herein by reference as though set forth at length 80. "Before determining whether to decline or retain jurisdiction, the Court may communicate with a Court of another state and exchange information pertinent to the assumption of jurisdiction by either Court with a view to assuring that jurisdiction will be exercised by the more appropriate Court and that forum will be available to the parties". 23 Pa. C.S. §5348(d) 81. This Court should communicate with The Lake Superior Court, Room Number Three, Sitting At Gary Indiana ((219)-755-3681, or (219)-755-3456). 82. Because Defendant Father files a Motion for Modification of the November 2003 Visitation Order in conjunction with this Petition, and because Defendant Father is unable to travel to Indiana~ to attend a Jurisdictional or o~her heating, any proceeding in Indiana would be Inconvenient. WHEREFORE, Plaintiff requests this Court to maintain Jurisdiction over this Visitation Proceeding. Plaintiff Father has been placed on house arrest as part of his probation restrictions. 12 COUNT THREE Petition for Contempt 83. Paragraphs 1 through 82 are incorporated herein by reference as though set forth at length 84. "Courts possess the inherent power to enforce their orders and decrees by imposing sanctions for failure to comply with said orders." Goodman v. Goodman, 383 Pa. Super. 383,394, 556 A.2d 1379 (1989). 85. Courts enforce their orders with a sanction for contempt, which is both a constitutionally and statutorily derived power. Id. at 394 86. "In the context of contempt proceedings for the violation of a custody decree, [the Superior Court has] distinguished between enforcement and modification jurisdiction." Id. 87. There is a great difference between modification jurisdiction which involves holding an evidentiary hearing on the best interests of the child in order to determine custody, and enforcement jurisdiction, which is limited to determining whether the prior custody order can be enforced, i.e., whether the decree was valid when entered and never modified. Id. at 394-95. 88. An unmodified custody order is always enforceable by the original forum. Id. at 395. 89. Even when there are fears for the Children's safety, the Custodial Parent cannot be permitted to ignore a Custody Order and unilaterally institute measures that the parent feels are appropriate. Luminella v. Marcocci, 2002 Pa. Super 410, 814 A. 2d 711,719 (2002). 13 90. Reliance on fears for a Child's safety is a factor that does not excuse compliance with a Custody Order. Luminella, 814 A.2d 711,719. 91. Such a factor should be argued during the development or modification of the Custody Order. Id. at 719. 92. This Court's November 2003 Order, has not been modified. 93. Most importantly, the Visitation Agreement Defendant Mother and Plaintiff entered into explicitly provides that Defendant Mother and Plaintiff"desire that this Custody Agreement be entered as an Order of the Court of Common Pleas of Cumberland County." (Exhibit B at ¶ 8.) 94. Defendant Mother asked for this Court's November 2003 Order, and then voluntarily disobeyed that Order less than two weeks after the Order was entered. 95. Defendant Mother has thumbed her nose at this Court for over ten months while she has intentionally denied Child and Plaintiff the relationship Defendant Mother, this Court, and Plaintiff decided were in the best interest of Child. 96. While Plaintiff asks this Court to modify the existing Visitation Order (Custody Order), this Court should still find Defendant Mother in contempt of this Court's November 2003 Order. 97. While represented by Counsel, Defendant Mother found the time to inform Plaintiff that Defendant Mother and Child were planning to flee the State. 98. While represented by Counsel, Defendant Mother did not find the time to request a modification of this Court's November 2003, Visitation Order. 99. While represented by Counsel, Defendant Mother did not abide by the Order, so soon as two weeks after the Order was entered. 14 100. Instead, Defendant Mother, for ten months, has ignored her promise and this Court's Order by denying Child and Plaintiff a relationship that this Court, Defendant Mother, and Plaintiff agreed were in the best interest of Child. 101. And it is after this months-long period that Defendant Mother, by filing Custody papers in Indiana, now attempts to deprive this Court o1~ its Jurisdiction to modify its own Order. 102. In addition to violating this Court's November 2003 Order, Defendant Mother through her own intentional, and guided-by-Counsel, behavior has forced Plaintiff to incur Attorney's fees that otherwise would not have be¢~n necessary. 103. This Court has jurisdiction to enforce its unmodified November 2003 Order, and should do so. WHEREFORE, Plaintiff requests this Court to award her Attorney's fees made necessary by Defendant Mother's contemptuous behavior and to modify the current Visitation Order in a manner that is warranted, practical, and :most of all, in the best interest of the Child. CoI sel for the Plaintiff Jol~ C. Porter, Esq. Pa. Sup. Ct. ID #90152 Stephanie E. Chertok, R.N., Esq. Pa Sup. Ct. ID# 52651 61 West Louther Street Carlisle, Pennsylvania 17013 15 EXHIBIT A ROSALIE E. WALTERS, Plaintiff V STEVEN A. SMITH and MELISSA A. SMITH, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW : NO. 2003- 2385 CIVIL : : IN CUSTODY CO~TO~ER AND NOW, this [~J~,..day of ~L,~!, ~> ,2003, upon consideration of the attached Custody Concihation Repo~t~ ii 'i~)ordered and directed as follows: The Mother, Melissa A. Smith, shall enjoy legal and physical custody of Alisha Destiny Smith, born November 25, 2001. Pending further order of this court, the Paternal Grandmother, Rosalie E. Walters, shall enjoy periods of temporary visitation with the minor child as follows: Ao On June 28, 2003 from 10:00 a.m. until 5:00 p.m. Also, on July 19, 2003 from 10:00 a.m. until 5:00 p.m. and alternating Saturdays thereafter urmg the same ti:meframe. The parties may modify this time if they agree between themselves. Absent an agreement between the parties, the time shall be in accordance with this order. Mother shall provide all transportation for exchange of custody by delivering the minor child to the Paternal Grandmother's home. o A hearing is schedu~, in Courtroom To. 2 of the Cumberland County Courthouse on the ~f"~> A .M. At this hearing,~/th~ P~ternal Grandmother, Rosalie E. Walters, shall be the moving party and shall proceed initially with testimony. Counsel for the parties shall file with the court and opposing counsel a memorandum setting forth the history of cn~tody in this case, the issues currently before the court, each parties position on the issues, a list of witnesses who will be called to testify at the hearing and a summary of the CC: anticipated testimony of each witness. Additionally, this memorandum shall address legal arguments with respect to Paternal Grandmother's standing to seek visitation in this ease and with respect to the criteria this court should apply in determining whether a grandparent is entitled to visitation. This memorandum shall be filed with the court at least five (5) days prior to the mentioned hearing date The Preliminary objections fried by the Defendant Mother shall be addressed at the hearing scheduled above. The fact that the hearing is scheduled does not suggest that the preliminary objections are dismissed or otherwise disposed of. + This order may be filed also at Docket Number 03 - 2389, and the proceedings at that Docket Number shall be incorporated with the proceedings at Docket Number 03 - 2385 above. B?'T COtaT, Edgar B. Bayley ~ Ronald J. Gross, Esquire Erin L. Benson Dickinson School of Law Family Law Clinic Steven A. Smith ROSALIE E. WALTERS, Plaintiff V STEVEN A. SMITH and MELISSA A. SMITH, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW : : NO. 2003 - 23135 CIVIL : : IN CUSTODY Prior Judge: Edgar B. Bayley CONCILIATION CONFERENCE SUMMARY REPORT IN ACCORDANCE WITH THE CUMBERLAND COUNTY CIVIL RULE OF PROCEDURE 1915.3-8Co), the undersigned Custody Conciliator submits the following report: The pertinent information pertaining to the child who is the subject of this litigation is as follows: Alisha Destiny Smith, born November 25, 2001. A Conciliation Conference was held on June 19, 200.3, with the following individuals in attendance: The Paternal Grandmother, Rosalie W. Walters, wilh her counsel, Ronald J. Gross, Esquire; and the Mother, Melissa A. Smith, with her counsel, Erin L. Benson, of the Dickinson School of Law Family Law Clinic. Robert Rains, Esquire also attended on behalf of the Law Clinic. The Father was not in attendance. He is incarcerated and has been out of the child's life essentially since the day the child was born. This is a paternal grandmother seeking visitation. T]he Mother has filed preliminary objections. The conciliator determined that the Paternal Grandmother has had some contact previously with the minor child including periods where she babysat the child and other times. The conciliator consulted with Judge Bayley and determined that a hearing was necessary in this case. The conciliator suggested that the Paternal Grandmother should experience limited visitation with the minor child pending the hearing, pursuant to a schedule as set forth in the attached proposed order. w DATE The conciliator recommends the entry of an order in the forum as attached. Hubert X. Gil.r..oy, Esqu~e Custody Concthator ( EXHIBIT B ~B~acv. fir G~oss, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ROSALIE E. WALTERS Plaintiff VS. No. 03-2385 CIVIL ACTION - LAW STEVEN A. SMITH and MELISSA A. SMITH Defendants IN CUSTODY ORDER AND NOW, this ~'2~ day of ~ ~ 2003, upon consideration of the attached Custody Agreement that has been signed and acknowledged by the respective paffies, it is I-I~REB¥ ORDERED that the terms and conditions contained in the attached Custody Agreement in the above captioned matter is entered as an Order of Court. ]3Y THE COURT ROSALIE E. WALTERS, Plaintiff STEVEN A. SMITH and MELISSA A. SMITH Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, : PENNSYLVANIA CIVIL ACTION - LAW CUSTODY NO. 03- 2385 CIVIL TERM CUSTODY AGREEMENT TillS AGREEMENT, made this ¥~4*ktay of ~'j ~5~, 2003, between Rosalie E. Walters, hereinafter "Grandmother" and Melissa A. Smith, hereinafter, "Mother", concerns the custody of Alisha Destiny Smith, hereinafter, "the child", born November 25, 2001. Melissa A. Smith and Steven A. Smith, hereinafter, "Father", are the natural parents c,fthe ckild. Mother and Grandmother desire to enter into an agreement as to the custody of the child as follows: 1. Mother shall have sole legal custody of the child and primary physical custody of the child. 2. Grandmother shall have periods of visitation with the child which may occur at Grandmother's home or other place of mutual converfience, every other Saturday from 9:00 a..m. to 6:00 p.m. The day and times of the visitation may be modified by mutual consent of Mother and Grandmother. 3. Mother shall provide all transportation for Grandmother's visitation by delivering the m/nor child to Grandmother's home or other mutually agreed location. If Mother decides to change her and the child's residence from Cumberland County, Pennsylvania, she shall give Grandmother as much advance notice as possible. Neither Mother nor Grandmother shall speak ill, or allow others to speak iii, of each other in the child's presence. Father is not a party to this agreement, and this agreement does not purport to set forth any rights or responsibilities of Father vis-a-vis the child. Mother and Grandmother acknowledge that they have read and understand the provisions of this Custody Agreement. Mother and Grandmother deske that this Custody Agreement be entered as an Order of the Court of Common Pleas of Cumberland County. Melis~'~a')~. Smith Rosalie E. Walters Erin L. Benson Certified Legal Intern THOMAS M. PLACE Supervising Attorneys LUCY JOHNSTON-WALSH Staff Attorney FAMILY LAW CLINIC 45 North Pitt Street Carhsle, PA 17012 (717) 243-2968 Counsel for Melissa A. Smith Blak~ & Gross, LLC 29 East Philadelphia St. York, PA 17401 (717) 848-.'-t078 Counsel for Rosalie E. Walters EXHIBIT C ROSALIE E. WALTERS, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERI_AND COUNTY, PENNSYLVANIA V. STEVEN A. SMITH AND MELISSA A. SMITH, DEFENDANTS : 03-2385 CIVIL TERM AND NOW, this ORDER OF COURT day of December, 2003, the petition of Rosalie E. Walters for special relief, IS DENIED WITHOUT A HEARING? By vR/onald J. Gross, Esquire For Plaintiff ,,/Timothy J. Colgan, Esquire For Melissa A. Smith :sal Ed~a'r B. ¢~ The petition does not set forth any facts which would anable the paternal grandmother to prevent relocation by the mother with her daughter Alisha Smith, born November 25, 2001, who is in her physical custody pursuant to an order of November 21,2003. If the mother relocates and the current order of visitation is impractical, the grandmother may petition under 23 Pa.C.S. Section 5313(a) to seek another order of partial custody/visitation as may then be warranted and practical. BLAKE & GROSS, £.L.C. ~TTO~VEYS AMD COUNSELLORS AT ~W 71Z848.3078 £ax 71Z 848.2777 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ROSALIE E. WALTERS : Petitioner : VS. : No. 03-2385 CML ACTION - LAW STEVEN A. SMITH and MELISSA A. SMITH Respondents IN CUSTODY PETITION FOR SPECIAL RELIEF AND NOW, this q~"day of December, 2003, comes the Petitioner, Rosalie E. Walters, by and through her attorney, Ronald J. Gross, Esquire, of Blake & Gross, LLC., and files this Petition for Special Relief; to wit: 1. Petitioner, hereinafter "Grandmother," is an adult individual residing at41 Smith Road, Gardners, Pennsylvania, Cumberland County, 17324. 2. Respondent Father, Steven A. Smith, hereinafter "Father," is an adult individual presently incarcerated at SCI Greene, 175 Progress Drive, Waynesburg, PA 15370. 3. Respondent Mother, Melissa A. Smith, hereinafter "Mother," is an adult individual with the last known address of 604 N. Baltimore Avenue, Apartment I, Mt. Holly Springs, Peimsylvania, Cumberland County, 17065. 4. The parties entered into a Custody Agreement dated August 15, 2003 whereby Plaintiff was entitled to custody of the child every other Saturday from 9:00 a.m. until 6:00 p.m. A copy of said agreement is attached hereto as Exhibit "A.' 5. Said agreement was entered as an Order of Court on November ,2003. 6. Mother was to provide transportation of said child to and from the visitation periods with Grandmother. 7. Mother has failed to provide the child to Grandmother on three consecutive Bz.~z & GROSS, £.L G visits on September 27, October 11 and October 25, 2003. 8. In addition, the undersigned counsel has received notice from Mother's counsel on December 2, 2003 thai: she will be relocating to Indiana in the near/uture as she is fearful of the Father once he is released from prison. A copy of said letter is attached hereto as Exhibit "B.' 9. In addition, counsel has received faxes dated December 3'~ and 5m regarding Mother's approval to ~rande~ probation to Indiana and that it may benefit her. Copies of said letters are attached hereto as Exhibits "C' & "D.' 10. Mother's alleged fear of Father does not have an impact upon the time spent with Grandmother, Petitioner herein. 11. Pursuant to the Agreement, Paragraph 4, Mother has provided notice of relocating from Cumberland County, Pennsylvania. 12. The understanding of the parties when entering into the Agreement in August 2003 was that Grandmother would not be "cut-off" from the child. 13. The actions of Mother are designed to alienate Grandmother and her family from the child, her granddaughter. WHEREFORE, Petitioner prays this court to 'Lake ~he following action: A. Order the Mother to remain in Cumberland County pending a hearing; B. Schedule a hearing of the merits of the herein Petition is necessary; C. Order make up time to the Grandmother; and D. Order such additional relief as the Court deems necessary. BLAKE & GROSS, L.L.C. BYn~ Ro uire I.D. No .~go-sed4 29 East Philadelphia Street York, Pennsylvania 17401 (717) 848-3078 Attorney for Petitioner, Grandmother ROSALIE E. WALTERS, Plaintiff STEVEN A. SMITH and MELISSA A. SMITH Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, : PENNSYLVANIA : CIVIL ACTION[ - LAW : CUSTODY : NO. 03- 2385 CIVIL TERM CUSTODY AGREEMENT TH/S AGREEMENT, made this ~V'day of ~,).~, 2003, between Rosalie E. Walters, hereinafter "Grandmother" and Melissa A. Smith, hereinafter, ":Mother", concerns the custody of Alisha Destiny Smith, hereinafrer, "the child", born November :25, 2001. Melissa A. Smith and Steven A. Smith, hereinafter, "Father", are the natural parents of the child. Mother and Grandmother desire to enter into an agreement as to the custody of the child as follows: 1. Mother shall have sole legal custody of the chikt and primary physical custody of the ch/Id. 2. Grandmother shall have periods ofvisilation with the child which may occur at Grandmother's home or other place of mutual convenience, every other Saturday from 9:00 a..m. to 6:00 p.m. The day and times of the visitation may be modified by mutual consent of Mother and Grandmother. 3. Mother shall provide all transportation for Grandmother's visitation by delivering the minor child to Grandmother's home or other mutually agreed location. 4. If Mother decides to change her and the child's residence from Cumberland County, Pennsylvania, she shall give Grandmother as much advance notice as possible. Neither Mother nor Grandmother shall speak ill, or allow others to speak ill, of each other in the child's presence. Father is not a party to this agreement, and this agreement does not purport to set forth any fights or responsibilities of Father vis-a.-vis the child. Mother and Grandmother acknowledge that they have read and understand the provisions of this Custody Agreement. Mother and Grandmother deske that this Custody Agreement be entered as an Order of the Court of Common Pleas of Cumberland County. Meliss~ ~_.'-S mith Rosalie E. Walters Erin L. Benson Certified Legal Intern KOBERT E. THOMAS M. PLACE Supervising Attorneys LUCY JOHNSTON-WALSH Staff Attorney FAMILY LAW CLINIC 45 North Pitt Street Carlisle, PA 17012 (717) 243-2968 Counsel for Melissa A. Smith York, PA 17401 (717)848-3078 Counsel fix Rosalie E. Walters ~2/72/2003 04:58 FAX 7174320426 The %vil~' Group ~001/001 Wile Lenox Co!_,m ~, Marzz~tc(:o P.C Ronald J. (iross. Fsqture Blake & Gross, LLC 20 East Phi]adeipbJa Streel York. PA 7401 Re; Rosalie E. Walters vs. SteYen A. Smith and MeI'ssa fi,. Smitb, No. 03--2385 Cixi] ']k)rrn Dem Rea Please be advised dmll hm,e been returned lo represent Md/ssa A. Staid with regard tl~e Cttstody Agreemem oc~x~een lam- m~d Rosalie E W:: ~ers. As you ma~ know, Ms, SmJlJn pronanon fi'om chmjcs that mx)se while M~e was still ia a relalicnship wifl~ yc~ur clicllt's Sleven Smifll Mr. SmJfll has beei~ ir,:arccrated m S(!Green since Oclobm' 25. 2001 Iris '1 clienl's b~'lieflba~ ne is up lbr parole again lids montl~ M -. S 'mb ss. as mcred~.'fly almsNe to my client and. after much col~fioh:ation with her ~2smily, il ]fi t~er llllenI to ~:etoc~te b ilk I(.~ 11~ move on with her ]i lb in order to prmdde a moi'e S able alld ]cwing CllYIroltH1CtlI [k)l' Alisha. To d~al end she has received pem~lsslon li'(,m her Adams Corral y pr(>badon of Scer. Bob tlelilqelt. 1o relncale m thc state ~flndiana. Mr. Bennett Mit cortlintio io snpcrvlse.ner oI~ a maib basis through the e~ qrat:ion dec/sion after ctmsultation whh tile V~cdm Ad,,ocate Program [11c }/ork L OUll!y Assistan District Allomcy. and her 9robafion ['he. Agreemem [hal Ms ,qmJ1!l and Ms. Wa]terssim~ed xn'lier Inns yea rut~tures that Ms. Smith ~rov~de as much notice to Ms Wakers as possibleregarding any cum ge i'n residence. As I2ollce required under the agrecmcnl oft[lc Dames. Offk e~ 12/02/2003 05:07 F)J~ 7174320428 The ~'iley Group ~001 Ronald ]. Gross. Esqtfire Re: Rosalie ~. Wailers v. Stcvcn A. Smith and Me!issa A. December 2. Pa~e 2 Shouid you need I'~lrther h~ fbrmalion, please do Doi hesitate It) contact Very truly yours. WILEY, LENOX, COLGAN & MARZZACCO, P.C by Timoilly ,t. Colgan TJC./sam cc: Melissa A. Smith 12/03/2003 05:51 FAX 7Z74320426 The Wiley Group THE WILEY (iR()l IP ~ J ] (l~ V ' Lei]OX CO cain & Marzzacco. Pi(' ~]001 (7t 7~ ~zts ~2 .... Rolmld J Gross. Blake & ~ Jross 29 East Philadelphi.:4 >n'ect York. PA 1740] Re: Rosalie E. Wakcr~ vs. S{e~ en A S]milh and Mdissa A. Smith Ne. 03-2285 Civil Term Dear Ron Enclosed please 15nd · ~tq~y of*~ tede~ ~ ~e..'en,('d tS'om B Jig S/Ma. who is a Legal any qL~estions ~egardmg !he enclosed, please do n,.)i hesitate to Very h'ut5 yours. WIEEY !&NOX, COl,GAN ~ M kRZZ4CCO. ILk 'J ~,... Mchssa A.. m~lh b) Timofl'~y J. Uolgan ( )Ifhe 12/08/2003 05:$2 FAX 1174820426 The Vile:; Group ~002 ictim ssistance enter f)ecen' >er ~, 2(}03 To whom il may collcel-l'l, As a l ,egal Advocate 'with the Vi¢lim Assislance Center, I've been working with Md/ssa Smith. After discussing Melis~'s sit. etlon with the York Caunty's Dislricl Attorney's Office it's been determined it would be best fbr Melissa Io leave the York County area £br her safety and the sa£e4'y of her children Sincerely, Blis Szala (') P.O. BOX 30, YORI(, PA 17405 , (717) 854-3!31 - Fax (717) 846-6321 - 1-~NHt-422-320~ (24 l:1Of~'l'~S) ~ 12/05/2003 01:42 F.LX 7274320426 The ~iley Group ~001 Wile' Lenox: Cotgan & Marzzaccc December 5. 2003 ¥ia .l"&OSi~111 ~e Lrai'ls111' q~icm ¢~17 q4X..?777 P, onald .l. Gross. Ese ulre Blake & Gross. I,LC 29 Eas~ Philadelp ~ a Sweet York. PA 17401 Rosalie i:,. Walters vs Sleven A Smids xnd Mel ssa A, Smnh No. 03-2385 CMl 1-erin Dear Ron: EncMscd please find a copy ora lerle' ecc ~ e(] fi-om ( had ~pm ~kJe~ hlleBs ~e Su Derv~ s ion Of'fi ce r w i th th c 1 )eparlmm~l of A dnl t Pro bal'km and P arol e m Adam s ('outcry, w~th regard to my client, Melissa A. Smith. H' you have any qucsmms regarding the enclused please do not hesitate to OOI1T~l 1]1EL Vet) iruJy ~otu's, WI I,EY..F',N()X. 1'OLGAN & MARZZACC(. I'.(:. I'JC/sam cc: Melissa A. Sm/th by Fhnolhy J. (_otgan 12/05/2003 01:43 FAX 7174320426 The l%iley Group ;,,18 711 RDULT FRODR ~u~, 717+334+!613 Department of Adult Probation and iParofe Adams County Courthouse Suite 302 111-1!7 Baltimore Street Getq'sburg, PA 17325; ~002 ?, 02 December, 5, 2003 Ma-. Timmhy J. Colgan, Esq. Wiley Group 130 West Chin-ch St. Suite 100 Diltsbm.g, PA 17019 RE. MELISSA ANN SMITH Dear Mr. Colgau: Mehssa Ami re,th meets the requu'ements to be eligible for tra:asfer to maother State. The State lzansfer packet was conipleted on December I~ 2003 by the Adams County Probation Department. Melissa Ann Smith has been issued a provisional travel pass allewing her to reside in ar other slate wh~le the transfer -is being reviewed by the accepting state. The provisionM 12'a~/el pass is effective Decembe: 5, 2003. Sincerely, Chad Sprankle Inte~isive Supervision O~cer EXHIBIT D STATE OF INDIANA COUNTY OF LAKE ) IN THE LAKE SUPERIOR COURT )SS: ROOM NUMBER THREE ) SITTING AT GARY, INDIANA IN RE THE MARRIAGE OF: MELISSA SMITH, Petitioner, And STEVEN A. SMITH, Respondent. CAUSE NO: VERIFIED PETITION TO DOMESTICATE FOREIGN JUDGMENT AND TRANSFIER JURISDICTION AND PETITION FOR CUSTOr)Y ORDER The Petitioner, Melissa A. Smith ("Melissa"), upon her oath, under penalties for perjury, states as follows: 1. Melissa now resides in Munster, Lake County, Indiana, with Alisha Destiny Smith, her minor child. 2. Melissa the Mother of Alisha Destiny Smith, bom November 25, 2001, age two (2) years, and said child has continuously resided with the Petitioner in Munster, Lake County, Indiana for more than eight (8) months. 3. Melissa was granted a Decree in Divorce in the Court of Common Pleas of Cumberland County, State of Pennsylvania, on April 2, 2004. A certified copy of said Decree in Divorce is attached hereto as Exhibit "A" and is incorporated by reference herein. 4. Pursuant to a Custody Agreement entered into on August 15, 2003 entitled "Rosalie E. Walters, Plaintiff v. Steven A. Smith and Melissa A. Smith, Defendants", Melissa was granted sole legal custody and primary physical custody of her daughter, Alisha Destiny Smith. A copy of said Custody Agreement is attached hereto as Exhibit "B" and is incorporated by reference herein. 5. The Father of said minor child is Steven A. Smith who is currently incamerated in a State prison located in Pennsylvania, and is serving time for the offenses of domestic assault, reckless endangerment, resisting arrest, deviate sexual assault, making terrorist threats, and escape. 6. The Father has applied for parole and he has been granted parole and early release from prison within the next two months. 7. Indiana is the home state of Melissa and the parties' minor child at the time of commencement of this proceeding. Melissa and said minor child have a significant connection with the State of Indiana by virtue of their residency and intent to remain in Lake County, Indiana. There is available in Indiana substantial evidence conceming the minor child's present and future care, protection, training, and personal relationships. It is in the best interests of the minor child that a court of Indiana assume jurisdiction over said minor child, Alisha Destiny Smith. 8. This Court should assume jurisdiction over the divorce and custody proceedings previously litigated and determined in Pennsylvania pursuant to Indiana Code Section 31-17-3-3(a)(1)(A) and 31-17-3-3(a)(2)(A) and (B). 9. Melissa requests that this Court assume jurisdiction of her dissolution proceedings and confirm that she has sole legal custody and primary physical custody of the parties' minor child. 10. The Petitioner further requests that the Court restrict and prevent any visitation or parenting time by the Respondent/Father or by the patemal grandmother due to previous threats, upon the Petitioner and Alisha Destiny Smith as unborn minor child, violence, and fear that the Respondent/Father and/or the patemal grandmother will take the child out of the jurisdiction of Lake County, Indiana with the intent to return the child to the State of Pennsylvania or elsewhere. 11. There is no Child Support Order currently in effect for said minor child and the Petitioner is not requesting a Child Support Order upon the Father at this time. 12. The Petitioner is financially able to support said minor child. WHEREFORE, the Petitioner prays for the following relief: A. This Court domesticate and adopt the Decree in Divome and Custody Agreement from the Court of Common Pleas of Cumberland County, Commonwealth of F'ennsylvania. B. This Court transfer jurisdiction of the Dissolution of Marriage and Custody proceedings to Indiana. C. This Court enter an immediate temporary order granting Petitioner sole legal custody and primary physical custody of the parties' child, Alisha Destiny Smith, pending further proceedings. D. This Court enter an Order providing that the Respondent/Father and the paternal grandmother be restricted and preventing from exemising any visitation or parenting time with the minor child of the parties until further Order of Court. 3 E. And for all other just and proper relief in the premises. EUG~xE MyEIN~OLD (#6801-45) STi:~E~N P. KE/E~ N~5150.45) Law Offices of Eugene M. Feingold 625 Ridge Road, Suite A Munster, IN 46321 (219) 836-8800 MELISSA A. SMITH, Petitioner CERT F CATE OF SERVICE I certify that on the ( ~ ~-day of ~'~ ~'. 2Q~ [ I , service of a true and complete copy of the above and foregoing pleading or paper was made upon each party or attorney of record herein by depositing the same in the United States Mail in envelopes properly addressed to each of them and with sufficient first-class postage affixed. LAW OFFICF_~ OF EUGENE M. FEINGOLD 4 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY STATE OF ~~~ PeNNA. MELISSA A SMITH PLAINTIFF N O. 03-2389 CIVIL TERM VERSUS STEVEN A SMITH DEFENDANT DECREE IN DIVORCE APRIL 2 AND NOW, DECREED THAT MELISSAA SMITH STEVEN A SMITH AND 2004 03:55 PM , IT IS ORDERED AND , PLAI NTI FF~ , DEFENDANT, ARE DIVORCED FROM ThE BONDS OF MATRIMONY. THE COURT RETAINS JURISDICTION OF THE fOLLOWING CLAIMS WhiCh hAVE BEEN RAISED OF RECORD IN THIS ACTION FOR WHICh A FINAL ORDER hAS NOT YET BEEN ENTERED; ALL RELATED CLAIMS WERE WITHDRAWN EXHIBIT A BY THE COURT: George E. Hoff~r Certified C(~p/~-s's~.' Ju;e 14, 2064 PROTI-~N~ ARY ROSALIE E. WALTERS, Plaintiff STEVEN A. SMITH and MELIS SA A~ SMYrH Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, : PENNSYLVANIA CIVIL ACTION - LAW CUSTODY : NO. 03- 2385 CIVIL TERM CUSTODY AGREEMENT .................. ~SI ~~ ra~d~thi~' ~-~-~ay bT ~-~2~t'~:2-00-3~ ~tween P(6salie El Wal~S~ hereina~er "Grandmother" and Melissa A. Smith, hereinafter, "Mother", concerns the custody of Alisha Destiny Smith, hereinafter, "the clEd", bom November 25, 2001. Melissa A. Smith and Steven A. Smith, hereinaqer, "Father", are the natural parents of the child. Mother and Grandmother desire'to enter into an agree;merit as to the custody of the child as follows: -4. Mother shall have sole legal custody of the child and primary physical custody of the child. Grandmother shall have periods 0fvisitation ~Sth the child which may occur at Grandmother's home or other place of mutual convenience, every other Saturday from 9:00 a..m to 6:00 p.m. The day and times of the visitation may be modified by mutual consent of Mother and Grandmother. Mother shall provide all transportation for Grandmother's visitation by delivering the minor child to Grandmother's home or other mutually agreed locatior. If Mother decides to change her and the child's residence from Cumberland County, Pennsylvania, she shall give Grandmother as much advance notice as possible. 5. Neither Mother nor Grandmother shall speak ill, or allow others to speak ill, of each other in the child's presence. 6. Father is not a party to this agreement, and this agreement does not purport to set forth any fights or responsibilities of Father xqs-a-vis the child. 7. Mother and Grandmother acknowledge that (hey have read and understand the provisions of this Custody Agreement. ............ --Sr'-----Ivlother'and'Gti~iidii/b-t~r/lesk~ t~t }h{~ ~ii~t~y )i,~eei~it b~ ~ntered Order of the Court of Common Pleas of Cumberland County. Me~sss~ .Z.."Smith Rosalie E. Walters Erin L. Benson Certified Legal Intern ROBERT E. RAINS ' THOMAS M. PLACE Supervising Attorneys LUCY JOHNSTON-WALSH Staff Attorney FAMILY LAW CLINIC 45 North Pitt Street Carlisle, PA 17012 (717) 243-296S Counsel for Melissa A. Smith - n fC-ross Blak~ & Gross, LLC 29 East ]Philadelphia St. York, PA 17401 (717) 8411-3078 Counsel for Rosalie E. Walters EXHIBIT E Ronald .l. Gross. Esqun-¢ Blake &Oross LLC 2'; i~ast Plfilade]nnm St~:ec~ York. PA 17401 Re: Rosalie E. Walters ',,s. $1eYen A. Smith and Mehs~a A. Smifl~ 03-2385 (]~,i! 'l"erna Deal- Ron: Please be advised d:al I have becn relmned to represent Mdissa A~ Sm?{h wifla regard to tt~e Cns!od2 Agn-eemem between heu' ant~ Rosalie E. Walters. As ynu ma~ know, Ms. Smith ts pnmat~on from clnarges flint ai-ose while sbu wasstill b a relatimlship Wkh you]: client's son. Ste~en Smith Mr. Smith has been incareermed at SCl. Green since Octohm' 25. 2001 I[ ls:m5 chepl's be!ie[lhal ne ~s up lbr parole itg{tii) 1]iiS morilh. Mi-. Smith was Jncrechbly ubusive [o my client and. a~er nmch constfltalion w~th her tkmi.[¥, it is her imcnt to ~Tlocate back 4o India]aa m move (m with her Iitb in )rder ro provide a more stable and hn, ing cnYmmment fiw A lisha. To Lbal end. she has received permbsibt~ Ii'om her Adams County probation of~Scer. Bob [3enn~It:. m relocate ~o ihs slale of Indiana. Mr. Bennett will c, onnnue m supra'vise her on a mail. Jn 1-2tsis through tixe exnn-afion ot'hc~ pml)ali~m in .htiy/)F2O04. MR Strli h has z~rrivcd at/his decision after consultation c/th th~ Victim ~I ,ocate ProgranL thc ~ ork Cuunt} Assistant DistncI Attorney. mid hc~ orobation officers. ['he ATreemenl thai Ms. Sm~lh and Ms. Wakers si~,ned carh~:'.r lln~ )em' requires ~hat Ms. P LAIN~.~IFF'SExHiBiT.~ I ,dale Ronald J. Gross, Esquire I)cccmber 2, zO(b P~ge 2 Should 5ou need {k~rthcr infk>~'mation, p ~ aso do not hesi[a[c Verb tru]], ?ours, WILEY, LENOX, (!,()LGAN & M/\ RZZ,exCCO, P.C. by 'l m'mlh),t. (7oigan TJC/sam cc: Melissa A. Smith EXHIBIT F Driving Directions from 8315 Parkview Ave, Munster, IN to 41 Smith Rd, Gardners, PA Page 1 of 2 Expedia: Discount Hotels Hot Deals at Over 10,000 Hotels Save up to 50% on hotels at Expedia www. Expedia.com Home I Help I Settinos t M~cbil~e I Toolbar ORBITZ Discount Hotels Find IVlore Options & Special Deals. Book Hotel Rooms with ORBIT;Z! www,ORBITZ.com Directions 8315 Parkview Ave, Munster, IN 4632:[-2027 US - Hotel Offers - Flieht Deals 41 Smith Rd, Gardners, PA 17324-9000 US - Hotel Offers - Flioht Deals Print I E-Hail I Download to PDA I Reverse I New Directions I Revise 0.6 miles 1.2 miles 367.8 miles 250.3 miles 0.1 miles Maneuvers Distance Maps 1: Start out going South on PARKVIEW AVE toward ALTA 0.3 miles Map VISTA AVE. 2: Turn LEFT onto RIDGE RD. HaP 3: Turn LEFT onto INDIANAPOLIS BLVD/US-41 N. Map 4: Merge onto 1-80 E toward DETROIT (Portions toll). MaD 5:1-80 E becomes 1-76 E (Portions toll). Map 6: Take the 1-81/US-11 exit- exit number 226- toward Map CARLISLE/HARRISBURG. 7: Merge onto US-I:[/HARRISBURG PIKE. 1.8 miles Map 8: Merge onto 1-81 S toward CHAMBERSBURG. 5.1 miles Map 9: Merge onto PA-34 S via exit number 47A. ,5.3 miles Map 10: Stay straight to go onto PA-94/S BALTIMORE AVE. 3.1 miles HaP Continue to follow PA-94. 1~.: Turn LEFT onto SMITH RD. 0.3 miles Map 12: End at 41 SMITH RD GARDNERS PA Map Total Est. Time: 10 hours, 3 minutes Total Est. Distance: 637.38 miles Need a place to stay? Expedia: Discount Hotels Hot Deals at Over 10,000 Hotels Sea Ai~ Bu~s Cheap Hotels Compare Prices, View Photos Low Rates Guaranteed -Boo www.hotels.com Gardners Offers: [~tets Expedia: Disco Hot Deals at Over 10 Save up to 50% on h www. Expedia.com Discount Hotel Guaranteed Lowest R OrbitzSaver Hotels, www. 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User assumes all risk of use. IqapQuest and its suppliers assume no responsibility for any loss or delay resulting from such use. Site Index I About I Partners I Advertise I Privacv Policy & Leqal Notices © 2004 IViapQuest.com, Inc. All rights EXHIBIT G PENNSYLVANIA CONSOLIDATED STATUTES TITLE 23. DOMESTIC RELATIONS PART VI. CHILDREN AND MINORS CHAPTER 53. CUSTODY SUBCHAPTER B. CHILD CUSTODY JURISDICTION 23 Pa.C.S. § 5344 (2004) § 5344. Jurisdiction (a) GENERAL RULE.-- A court of this Commonwealth which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if: (1) this Commonwealth: (i) is the home state of the child at the time of commencement of the proceeding; or (ii) had been the home state of the child within six months before commencement of the proceeding and the child is absent from this Commonwealth because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this Commonwealth; (2) it is in the best interest of the child that a court of this Commonwealth assume jurisdiction because: (i) the child and his parents, or the child and at least one contestant, have a significant connection with this Commonwealth; and (ii) there is available in this Commonwealth substantial ,evidence concerning the present or future care, protection, training and personal relationships of the child; (3) the child is physically present in this Commonwealth, and: (i) the child has been abandoned; or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; (4) (i) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraph (1), (2) or (3), or another state has declined to exercise jurisdiction on the ground that this Commonwealth is the more appropriate fi>rum to determine the custody of the child; and (ii) it is in the best interest of the child that the court assume jurisdiction; or (5) the child welfare agencies of the counties wherein the contestants for the child live, have made an investigation of the home of the person to whom custody is awarded and have found it to be satisfactory for the welfare of the child. (b) PHYSICAL PRESENCE INSUFFICIENT.-- Except under subsection (a)(3) and (4), physical presence in this Commonwealth of the child, o.r of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this Commonwealth to make a child custody determination. (c) PHYSICAL PRESENCE UNNECESSARY.-- Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody. EXHIBIT iH 355 UNIFORM CHILD C.'USTODY JURISDICTION LAW 31-17-3-3 Rome State. rCont'd~ Illinois, Indiana was not the "home state" of the children and Indiana courts did not have jurisdiction In re Mayes. 523 N E.2d 249 --Temporary Absence. Where Indiana was child's home state ~ hen i~tix-r filed a petition for dissolution and castodv mother's abduction of child did not chai ~[' the child's home state because tbe tnvot~mtarv removal of a child a ould neces- Ortman ~ O~tman. 870 N.E.2d 1317 lind App. 1998J Where mother did not speci(v a date certain for resunnng plxysical custody of daughter. but both father and mother understood the child's stay with father in Indiana would last approximately four to six weeks, where at the end of that time mother expressed her desire to reassume custody, but was frustrated in her attempts to do so over a period of approx- imately six weeks by practical, logistical dif- ficult/es, and where father then filed a disso- lution action at a time such that it effectively blocked mother's plan to regain physical cus- tody of her daughter, the child's stay in Indi- ana was a "temporary absence" withm the meaning of this section Stewart v. Stewart, 708 N.E.2d 903 lind. App. 1999~. International Custody Dispute. The superior court propeliy concluded t did not have jurisdiction to decide the custody of Italian-born, Italian-reared and Italian-lesid- ing children, given that Italy becama the children's "home state" by virtue of former lC 31-1-11 6-23's domestic incorporation of the Unifmm Child Custody Jurisdiction Act [La~q. and no showing could be made that Italy did not haxe jurisdiction to determine child custody under ~rs own laws or that parent would be denied due process if lbrced to litigate custody m a~x Italian forum. Rappen v. Rappen. 614 N.E.2d 577 I Ind. App. 1993~. Joint Legal Custody. The use of the term "joint custody" on one page of the signed custody a=m-eement, along with an indication that the wife was to be the "custodial" parent, was consistent with an agreement of joint legal custody. Reno v. Haler, 743 N.E2d I139 lind. App. 2001t State. Neither the Pine Ridge Indian reserx ation nor the Oglala Sioux tribal court is with:n the ambit of the definition of "state." JQ. v, DRL.. 525 N.E.2d 298 lind. 19881. cezt, de- nied. 490 US 1069, 109 S. Ct 2072. 104 L. Ed. 2d 636 t1989~. Collateral References. What types of proceedings or determinations are governed by the Uniform Child Custody Jurisdiction Act IUCCJA~ or the Parental gJdnappmg Prevention Act IPI~Ai. 78 A.L R.4th 1028. Home state jurisdiction of court under § 3!all 1! of the Umform Child Custody Juris- diction Act (UCCJAI or the Parental Bhdnap- ping Prevention Act (PI/--PAl, 28 USCS § 1738AIc~I2XA). 8 A.L.R.hth 1 Pending proceeding in anotixer state as ga-ound for declining3urisdiction under § fi!al of the Uniform Child Custody Jurisdiction Act !UCCJA~ or the Parental K/dnapping Preven- tion Act IPK-JPAk 28 USCS § 1738A~g). 20 A.L I~ 5th 700. Substantial conformity not found where other jurisdiction has not adopted UCCJA. 20 A L R.hth 821. 31-17-3-3. Jurisdiction. -- (a) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if: (1) this state IAI is the home state of the child at the time of commencement of the proceeding, or !B) had been the child's home :state within six (6) months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; {2) it is in the best interest of the child that a court of this state assume jurisdiction because IAI the child and his parents, or the child and at least one (1) contestant, have a significant connection with this state, and (BI there is available in this state substantial evidence concerning 31-17-3-3 FAMILY LAW CUSTOD5 A~qD VISITATION RIGHT~ 356 the :hfld's present or fhture care. protectmn, tramma, and personal relationships; 13/ the child is physically present in this state and the. child has beeu abandoned; or /41 IA) it appears that no other state would have jur:sdict2on under prerequisites substantially in aceordance with paragraphs ,1 b /2/, or 13h 02' another state has declined to exercise jurisdiction on d2e ground that this state is the more appropriate forum to determine the custody of the child, and (BI it is in the best interest of the child that ~his court assume jurisdiction. {bi Except under paragraphs (3l and /4) of subsection ~a) physical presence in this state of the child, or of the child and one Il) of the contestants, is not alone sufftcient to confer jurisdiction on a court of this state to make a child custody determination. (el Physical presence of the child, while desirable, is not prerequisite for jurisdiction to determine his custody. [RL.1-1997, § 9.] Res Gestae. Family law case update, 45 nit>' petition places custody in is.~ue, 46 (No. 31 Res Gestae 31 {2001/. 7) Res Gestae 34 1fl003;. Family Case Law Update: Filing of pater- NOTES TO DECISIONS ANALYSIS In general. Action pending in another state. ApplicabiliDx Best interests of child. --In general. --Evidence. --Evidence of present and future care. --Evidence of present and future care. Construction. --Similarity to uniform act. Contempt proceedings. --Applicable law. --Interference with custodial rights. Custody proceedings. Emergency jurisdiction. Evidence of present and future care Exclusive jurisdiction. Failure ~o determine jurisdiction, Home state of child. --In general. --Abduction of child. --Failure to decline jurisdiction. Inconvenient forum. --Abuse of discretion. International custody dispute. Jurisdiction of court, --Improper forum. --Waiver. Modification of foreign order. Modification of own order. More appropriate forum Personal jurisdiction. Putative father. Sigauificant connection with state. Visitation rights. In General. The "home state" concept confors subject matter jurisdiction over the person of the chihl without the necessity of physical pres- ence Clark v. Clark. 76 Ind Dec. 1. 404 N.E.2d 23 lind, App. 1980). Statutory scheme requires that Indiana re- frain from modifying a child custody decree ente:red in another state which: I i ) Had juns- dictim2 at the time the decree was entered, !2 has continuing jurisdiction at the time the action to modify is filed in Indiana, and provides fay the right to modification. Cox v Lewis, 536 N.E.2d ~20 (Ind. App. 1989~. D~ termining the "home state" of the child is merely the first step in determining jurisdic- tion. A trial court must first determme whe':her it has jurisdiction under the "home state" test. If that test is met, the court must then determine if it may exercise that ~uris- diction. If there is a custody proceeding pend- ing or a decree in another state which pres* ently has jurisdiction, the court of the second state may only exercise jurisdiction if 1~ it appears to the court of the second state that the court which rendered the decree does not new have jurisdiction under the Uniform Child Custody Jurisdiction Act {Law], and 2J the court of the second state has jurisdiction VERIFICATION I verify that the statements made in this complaint are true nad correct. I understand that false statements made herein are subject to the penalties under 18 Pa. C. S. § 4904 relating to unsworn falsification to authorities. VERIFICATION I verify that the statements made in this complaint are true and correct. I understand that false statements made herein are subject to the penalties under 18 Pa. C. S. § 4904 relating to unsworn falsification to authorities. Defendant Father, Steven A. Smith ROSALIE WALTERS PLAINTIFF STEVEN A. SMITH AND MELISSA A. SMITH: DEFENDANT : : IN THE COURT OF COMMON PLEAs OF : CUMBERLAND OUNI'y, PENNSYLVANIA 03-2385 CIVIL ACTION LAW IN CUSTODY O__RDER OF COURT AND NOW, Tuesda , October 05, 2004 ~--------__~, upon consideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear belbre Hubert X. Gilro , Es . , the conciliator. fo~' ,,,ou~e, ~:arlisle Thursday, Novemb ..... g ~-.ustouy ~--onference. At such confer~ ~', aovemuer 11, 2004 at 8:30 AM ,..ce, an e~tort will be made to res,-~--- -,- · ~ ,,Jvc me 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 a~e five or older may also be vresent at the conference. Failure to avpear at the conference may provide grounds for entry ufa 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: /si Custody Conciliator The Court of Common Pleas of Cum - . Americans with Disabilites Act or ~ ont~ ,- . b.erland. County ~s required b law .. - * · ~u. *"or mtormatlon about ace,~o;~-~- ~ .,..to Comply wlth the .... o~mc .[aCllltles 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 pr/or to any hearing or business before the court. You must attend the scheduled conference or hear/ng. 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 ROSALIE E. WALTERS, PLAINTIFF · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA STEVEN A. SMITH and MELISSA A. SMITH, DEFENDANTS · 03-2385 CIVIL TERM ORDER OF COURT AND NOW, this 30th day of September, 2004, the petition for emergency relief, IS DENIED WITHOUT A HEARING. The issues on the merits are refe,~l to conciliation. Edgar B. Bay~ey, J. John C. Porter, Esquire For Plaintiff ' G~d~.~ ,,j_~ Melissa Smith - ~ 8315 ParkviewAven[~6' ~ /~'.& Munster, IN 46321 Court Administrator :sal ROSALIE E. WALTERS, Plaintiff V. STEVEN A. SMITH AND MELISSA A. SMITH, Defendants IN THE COURT OF COMMON PLEAS OF CERTIFICATE OF SER~VIC..C~E I, John C. Porter, counsel for Rosalie E. Walters, hereby certify that a true and correct copy of PETITION FOR EMERGENCY RELIEF PURSUANT TO Pa. R.C.P. 1915.4 e and PETITION '.OR CUSTODY MODIFICATION UNDER 23 PaC'~~~~~L~t~ COURT DATED DECEMBER 30 2003 and PETITION FOR CONTEMP~T, was served on the 28th day of September, 2004, by Certified Mail, Return Receiipt Requested, Restricted Delivery and by First Class Mail, upon those listed below: Ms. Melissa A. Smith 8315 Parkview Avenue, Munster, 1N 46321 Said Service was completed on October 4, 2004, as is reflected on the Return Receipt, a copy of which is attached. Co-Counsel for Plaintiff PA Sup. Ct. ID# 90152 61 W. Louther St. Carlisle, PA 17013 717-249-1177 [] No 2. A~o~e Number , ~r,~.~?r~ 7003 3'~1~ -- - .... u uuu~ 5771 ~PS~rm3811,F~nn~ - .... uu~ ~//~ 7~ ROSALIE E. WALTERS, Plaintiff V. STEVEN A. SMITH AND MELISSA A. SMITH, Defendants I IN THE COURT OF COMMON PLEAS OF f~U_M?ERLAND COUNTY, COMMONWEALTH OF PENNSYLVANIA 03-2385 CIVIL TERM CUSTODY C_~ERTIFICATE OF SERVICE I, John C. Porter, counsel for Rosa/ie E. Walters, hereby certify that the true and correct copy's of the Court Order dated S_el~tember 30, 20(}4 and October 5 2004 were served on the 13th day &October, 2004, by First Class Mail, upon those listed below: Ms. Melissa A. Smith 8315 Parkview Avenue, Munster, IN 46321 ~Jo~'C. ~orter, Esq. Co-Counsel for Plaintiff PA Sup. Ct. ID# 90152 61 W. Louther St. Carlisle, FA 17013 717-249_1177 ROSALIE E. WALTERS PLAINTIFF STEVEN A. SMITH AND MELISSA A. SMITH DEFENDANT IN THE COURT O]? COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 03-2385 CIV1L ACTION LAW IN CUSTODY ORDER OF COURT AND NOW, Wednesda_~ October 20, 2004 ___, upon cons~ideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear before Hubert X. Gilroy, Esq. , the conciliator, at 4th Floor, Cumberland County Courthouse, Carlisle ouThursday, November 18~ 2004 · at 10:3~0 _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 aec 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 Rellef orders, and Custody orders to the conciliator 48 hours I~rior to scheduled hearinu. FOR THE COURT. By: /s/ Hubert X.~,s_q_~. . rnhc 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 ROSALIE E. WALTERS, VS. STEVEN A. SMITH and MELISSA A. SMITH, Plaintiff Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 03-2385 crVIL TERM CUSTODY DEFENDANT'S PRELIMINARY OBJECTION OR IN TI:IF, ALTERNATIV]E_. AND NOW, comes Defendant, Melissa A. Smith, by and through her attorney, Timothy J. Colgan, Esquire, of WILEY, LENOX, COLGAN & MARZZACCO, P.C., and states the following in support of her objections to the jurisdiction of this Court and to the propriety of venue: 1. The child that is the subject of the Petitions is Alisha Destiny Smith. Alisha Destiny Smith was born on November 25, 2001. 2. Melissa A. Smith is the mother of the child. 3. Steven A. Smith is the father of the child. 4. Rosalie E. Walters is the paternal grandmother of the child. 5. Pursuant to a Custody Agreement entered into on August 15, 2003, Melissa Smith was granted sole legal custody and primary physical custody of the minor child. A copy of said Custody Agreement is attached hereto as Exhibit "A". 6. On or about September l, 2004, Melissa Smith filed a Petition to Domesticate Foreign Judgment and Transfer Jurisdiction,, and Petition for Custody Order with the Lake Superior Court Room Number 3, sitting at Gary, Indiana. A copy of said Petition is attached hereto as Exhibit "B". 7. On or about September 27, 2004, Plaintiff, Rosalie E. Walters, filed a Petition for Emergency Relief, Petition for a Custody Modification, and Petition for Contempt. 8. On or about October 13, 2004, Defendant, Steven A. Smith, filed a Petition for Custody Modification and a Motion pursuant to 23 Pa.C.S.A. § 5308. 9. In the present Petition, Melissa Smith objects to Plaintiff, Rosalie E. Walters' Petition, and Defendant, Steven A. Smith's Petition, as the Cumberland County Court of Common Pleas is not the proper jurisdiction which to bring said Custody Motions. 10. Pursuant to 23 Pa.C.S. 5421 (a) a court of this Co,mmonwealth has jurisdiction to make an initial child custody determination only if: (1) this Commonwealth is the home state of the child on the date of the commencement of the proceeding or was the home state of the child within six months before the commencement of the proceeding and the child is absent fi.om this Commonwealth but a parent or person acting as a parent continues to live in this Commonwealth. 11. Pennsylvania is not the minor ghild's home state. Melissa Smith and the minor child have lived in Munster, Lake County, Indiana, since December 5, 2003. 12. Pursuant to 23 Pa.C.S. 5421(a)(2), Pennsylvania courts may also exercise jurisdiction if it is in the best interests of the child, but only if the child has a significant connection with the Commonwealth and substantial evidence cc~ncemmg the presem or future care, protection, training and personal relationships of the child is available in the Commonwealth. 13. Pennsylvania. 14. In the case at hand, the minor child does not have a significant connection with Most of the minor child's care givers are located in Indiana, as are most potential witnesses. The minor child is currently in pre-school in Indiana. 15. Substantial evidence concerning the present or future care, protection, training and personal relationships of the child, are more readily available irt Indiana. 16. If it is determined that the Commonwealth has jurisdiction, next the court must determine if the Commonwealth is the most convenient forum to hear the custody matter. 17. Pursuant to 23 Pa.C.S. 5427(a) a court of this Commonwealth which has jurisdiction under this chapter to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. Before determining whether it is an inconvenient forum, a court of this Commonwealth shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors. 18. The following are factors relevant to this case: (1) whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child; (2) the length of time the child has resided outside this Commonwealth; (3) the distance between the court in this Commonwealth and the court in the state that would assume jurisdiction; (4) the relative financial circumstances of the parties; (5) the naturo and location of the evidence required to resolve the pending litigation, Smith. 19. including testimony of the child; Melissa Smith has been a victim of domestic violence at the hands of Steven 20. At the time of the initial Custody Agreement, Steven Smith was incarcerated in a state prison for several charges, at least one of which involved an assault on Melissa Smith. 21. Mr. Smith is currently under house arrest in Pem~sylvania for these same set of charges for which Melissa Smith was a victim. 22. While there is a good distance between Pennsylvania and Indiana, the Pennsylvania Department of Probation and Parole will grant Mx'. Smith permission to travel to Indiana for court dates, if necessary. See Exhibit "C". 23. Moreover, because of the comparative financial positions of the parties (father is not ordered to pay child support), it is more equitable for this custody matter to be determined in Indiana. WHEREFORE, the Defendant, Melissa A. Smith, respectfully requests the Court to make a finding that it lacks jurisdiction to hear this custody matter and to enter an Order dismissing the proceeding. In the alternative, Defendant, Melissa A. Smith, requests the Court to fred this forum to be mconvenient and to either dismiss the proceeding or to transfer the matter to an appropriate venue in or about Munster, Lake County, Indiana. Dated: By: Respectfu][ly submitted, WILEY, LENOX, COLGAN & MARZZ,~.CC0, P.C. Timothy J.~s~ire I.D. #77944 130 West Church Street Dillsburg, PA 17019 (717) 432-9666 Attorney fi~r Melissa A. Smith EXHIBIT "A" A. OSALIB t~. WALTERS, Pla/ntiff S TEVEN A. SMITH and MELISSA A. SM/TH Defendants : IN TH~ COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, : PENNSYLVANIA CIVIL ACTION'- LAW CUSTODY : NO. 03- 2385 ,CIVIL TERM CUSTODY AGREEMENT ............... .... ................ hereinafter "~o~ef' ~d Me, sa ~ S~ h~rc~er, "Mo~ef', ~nce~ ~e ~stody of ~a D~y S~ herSn~er, '~e c~d', bom Nov~er 25, 2001. M~sa ~ S~ ~d St~ ~ S~ h~ein~_ffer, '~a~', ~e ~e ~ p~en~ cf~e c~d. MO~ ~ ~o~er dele'to ~ ~t0 ~ a~eement ~ to ~e ~ody of~e c~d ~ fo~ows: Mother shall have sole legal custody~of the child ~md' pHrn~y physical custody of the child. Grandmother shall have ~efiods 6fvisitation with the child which may occur at Grazidmother's home or other place of mntual convenienca, every other Saturday from 9:00 a..m to 6:00 p.m. The day and times of the visitation may be mod/fled by mutual consent of Mother and Grandmother. Mother shall provide all transpor[ation for Grandmother's visitation by delive~n~ the minor child to Grandmother's home or other mntually agreed locatio~. IfMothex decides to change her and the child's residence from Cumberlan(j County, Pennsylvania, she shall give Grandmother as much advance notice as 'possible. Neither Mother nor Grandmother shall speak ill, or allow others to speak ill, of each other in the ch/ld's presence. 6. Father is not a party to this agreement, and this agreement does not purport to set fOrth any rights or responsibilities of Father vis-a-vis the child. 7. 'Mother and Grandmother acknowledge that they have read and understand the provisiom of this Custody Agreement. 8.. ............... ....... Order of the Court of Common Pjeas of Cumberland County. Mel~a X. Smith Kosalie E. Walters :-~in L. Bemon Certified Legal Intern BLURT E. RAINS THOMAS Irt PLACE Supervising Attorneys LUCY JOHNSTON. WALSH Staff Attoraey FAMILY LAW CLINIC 45 North Pitt Street Carlisle, PA 17012 (717) 243-2968 Counsel for Melissa A. Sm/th oss, LLC 2~ Rast Philadelphia St. Yorlq PA 17401 (717)848-3078 Cou~el for Rosalie E. Walters EXHIBIT "B" STATE QF INDIANA COUNTY OF LAKE ) IN THE LAKE SUPERIOR COURT )SS: ROOM NUMBER THREE ) SI'I-FING AT GARY, INDIANA IN RE THE MARRIAGE OF: ) MELISSA SMITH, ) ) And Petitioner, STEVEN A. SMITH, Respondent. CAUSE NO: VERIFIED PETITION TO DOMI=STICATE FOREIGN JUDGMENT AND TRANSFE"R JURISDICTION AND PETITION FOR CUSTODY ORDER The Petitioner, Melissa A. Smith ("Melissa"), upon her oath, under penalties for perjury, states as follows: 1. Melissa now resides in Munster, Lake County, Indiana, with Alisha Destiny Smith, her minor child. 2. Melissa the Mother of Alisha Destiny Smith, bom November 25, 2001, age two (2) years, and said child has continuously resided with the Petitioner in Munster, Lake County, Indiana for more than eight (8) months. 3. Melissa was granted a Decree in Divorce in the Court of Common Pleas of Cumberland County, State of Pennsylvania, on April 2, :2004. A certified copy of said Decree in Divorce is attached hereto as Exhibit "A" and is incorporated by reference herein. 4. Pursuant to a Custody Agreement entered into on August 15, 2003 entitled "Rosalie E. Walters, Plaintiff v. Steven A. Smith and Melissa A. Smith, Defendants", Melissa was granted sole legal custody and primary physical custody of her daughter, Alisha Destiny Smith. A copy of said Custody Agreement is attached hereto as Exhibit "B" and is incorporated by reference herein. 5. The Father of said minor child is Steven A. Smith who is currently incamerated in a State prison located in Pennsylvania, ;~nd is serving time. for the offenses of domestic assault, reckless endangerment, resisting arrest, deviate sexual assault, making terrorist threats, and escape. 6. The Father has applied for parole and he has been granted parole and eady release from pdson within the next two months. 7. Indiana is the home state of Melissa and the parties' minor child at the time Of commencement of this proceeding. Melissa and said minor child have a significant connection with the State of Indiana by virtue of their residency and intent to remain in Lake County, Indiana. There is available in Indiana substantial evidence concerning the minor child's present and future care, protection, training, and personal relationships. It is in the best interests of the minor child that a court of Indiana assume jurisdiction over said minor child, Alisha Destiny Smith. 8. This Court should assume jurisdiction over the divome and custody proceedings previously litigated and determined in Pennsylvania pursuant to Indiana Code Section 31-17-3-3(a)(1)(A) and 31-17-3-3(a)(2)(A) and (B). 9. Melissa requests that this Court assume jurisdiction of her dissolution proceedings and confirm that she has' sole .legal custody and pdmary physical custody of the parties' minor child. 2 · 10. The Petitioner further requests that the Court restrict and prevent any visitation or parenting time by the Respondent/Father or by the patemal grandmother due to previous threats, upon the Petitioner and Alisha [~)estiny Smith as unborn minor child, violence, and fear that the Respondent/Father anchor the paternal grandmother will take the child out of the jurisdiction of Lake County, Ilndiana with the intent to return the child to the State of Pennsylvania or elsewhere. 11. There is no Child Support Order currently in effect for said minor child and the Petitioner is not requesting a Child Support Order upon the Father at this time. 12. The Petitioner is financially able to support said minor child. WHEREFORE, the Petitioner prays for'the following relief: A. This Court domesticate and adopt the Decree in Divome and Custody Agreement from the Court of Common Pleas of Cumberland County, Commonwealth of Pennsylvania. B. This Court transfer jurisdiction of the Dissollution of Marriage and Custody proceedings to Indiana. C. This Court enter an immediate temporary order granting Petitioner sole legal custody and pdmary physical custody of the parties' child, Alisha Destiny Smith, pending further proceedings. D. This Court enter an Order providing that the Respondent/Father and the paternal grandmother be restricted and preventing from exemising any visitation or parenting time with the minor child of the parties until further Order of Court. 3 And for all other just and proper relief in the premises. MELISSA A. SMITH, Petitioner EUG~ M~='EIN~OLD (#6801-45) t/:_: ' " ~/EN P. KENNEDY (#5150-45) Law Offices of Eugene M. Feingold 625 Ridge Road, Suite A Munster, IN 46321 (219) 836-8800 .CERTIFICATE OF SERVICF I certify that on the,, ( ~' ~' day of ~P ~, 2~ L I , service of a true and complete copy of the above and foregoing pleading or paper ~ made upon each party or attorney of record heroin by depositing the same in the United States Mail in envelopes pmparly addressed to each of them and with suffiCient first-class postage affixed. LAW OFF77~F IEUG~NE M. FEINGOLD / v 4 EXHIBIT "C" dON 04=29 PM ~DULT PROB~TION Department of Adult Pra bation and ]Parole Adams County Courthouse Suite 302 l 11-117 Baltimore Street Gettysburg, PA 17325 1 717 334 3786 P, 02 TO: Attorney Timothy Colgan FROM: Officer Bryan W. Thoman 111-117 Baltimore Street Gettysburg, PA. ! 7331 717-337-9801 Ext 125 DATE: RE; Steven Allen Smith Mr. Steven Smith is currently on House Arrest (Phase H) in Adams County. If he is required to go to court in Indiana, Mr. Sm/th could get a Phase IH furlough and apass from the Adams County Probation Office (~o travel to Indiana for that purpose. Mr. Smith will be compluted with House Arrest Phase II on January 10, 2005 as long aa there am no violations. It'fitrther clarification is needed please contact me. Adams County pWbation Office ROSALIE E. WALTERS, VS. STEVEN A. SMITH and MELISSA A. SMITH, Plaintiff Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLt~ND COUNTY, PENNSYLVANIA No. 03-2385 CIVIL TERM CUSTODY CERTIFICATE OF SERVICE I, Timothy J. Colgan, Esquire hereby certify that on the 25th day of October, 2004, I served a copy of the Defendant's Preliminary Objection to Jurisdiction or in the Alternative Venue upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States mail, first-class, postage prepaid, as follows: John C. Porter, Esquire Stephanie E. Chertok, R.N., Esquire 61 West Louther Street Carlisle, PA 17013 Date: /'~'? ~'-~'~ Timothy J. Co~,'Es~n'e Attomey for Melissa A. Smith, Defendant WILEY, LENOX, COLOAN & MARZZACCO, P.C. 130 West Church Sla-~et, Suite 100 Dillsburg, PA 17019 (717) 432-9666 I.D. #77944 ROSALIE E. WALTERS, Plaintiff STEVEN A. SMITH AND MELISSA A. SMITH, Defendant NOV 3 0 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-2385 IN CUSTODY COURT ORDER AND NOW, this [~ day of Ni,,cmucr, 2004 upon consideration of the attached Stipulation, which has been agreed to by the parties in this case and their attorneys, it is directed that legal counsel for this parties file a brief with this Court in Chambers on or before December 3rd, 2004. The Brief shall address jurisdictional issues and the preliminary objections filed in this case. Upon receipt of the Brief and in the event that Court determines a hearing is necessary at that point, the Court will schedule a hearing. Additionally, the Court retains the right to communicate with the Indiana Court on the issue of jurisdiction. The Brief ~ed by the parties shall address the existing statutes that deal with the issues this Court must consider in determining a jurisdictional dispute in a Custody Case. Pending further order of this Court, this Court retains jurisdiction in the matter specifically for purposes of enforcing the existing Order of Court. Along these lines, legal counsel for the parties shall consult with mother's attorney in Indiana in an effort to work out a mutually agreeable arrangement whereby the father and paternal grandmother may travel to Indiana and exercise, at a minimum, some supervised visitation arrangement with the minor child. After said communications with the conciliator, the conciliator shall file with this Court a Supplemental Report specifying the temporary custody arrangements that will be implemented. In the event any party desires to obtain any psychological or psychiatric evaluations of the other parent in connection with the custody case and the party requesting the evaluation is prepared to incur the expenses for the evaluation, the other parent shall cooperate in connection with those matters. BY THE COURT, Judg~~ Cc~mothy J Colgan, Esquire The Wiley Group 130 West Church Street Suite 100 Dillsburg, PA 17019 t~ephanie E. Chertok, R.N., Esquire 61 West Louther Street Carlisle, PA 17013 ROSALIE E. WALTERS, Plaintiff STEVEN A. SMITH AND MELISSA A. SMITH, v : CIVIL ACTION - LAW : NO. 03-2385 Defendant : IN CUSTODY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CONCILIATION CONFERENCE SUMMARY REPORT At the Conciliation Conference, the parties agreed to the following stipulated facts for purposes of disposition of preliminary objections on jurisdictional issues in this case: 1. The minor child is Alisha Destiny Smith, born November 25, 2001. 2. The mother is Melissa A. Smith, currently residing in Munster, Indiana. Mother is 24 years old. 3. Father is Steven A Smith currently residing in Gardners, Pa. Father is 21 years old. 4. The other party is the paternal grandmother, Rosalie E. Walters, who resides in Gardners, Pa. 5. Father and paternal grandmother live together. 6. Father was incarcerated at the time of the child's birth. 7. Father was incarcerated either in Maryland or in Pennsylvania from October 2001 to August 2004. 8. While father was incarcerated at least through May of 2003, mother would take the minor child to prison to visit the father. e Father has never exercised any physical custody of the minor child and father's contact with the minor child since the child's birth has been only visits at prison. Father has not seen the child since his release from prison in August of 2004. 10. Paternal grandmother filed an action for partial custody of the minor child at the above Docket No. After a Conciliation Conference in June of 2003, the conciliator recommended that a hearing be scheduled. In conjunction with the order scheduling a hearing, the mother was awarded legal and physical custody of the minor child and the paternal grandmother was awarded periods of temporary custody on alternating Saturdays from 10 a.m. until 5 p.m. 11. In August of 2003, the paternal grandmother and the mother reached an agreement on the custody arrangement dated August 15, 2003, whereby the mother would continue to have legal and physical custody of the minor child and the paternal grandmother would have visitation on alternating Saturdays from 9 a.m. until 6 p.m. This stipulated agreement was entered as a Court Order on November 21,2003. 12. Since the child's birth, mother resided in Cumberland County until December of 2003 when mother moved to Indiana. Paternal grandmother suggests that her information indicates mother relocated in Indiana perhaps in January of 2004. 13. Since mother has moved to Indiana, mother has never returned to Pennsylvania. 14. Paternal grandmother has not seen the minor child since November 23, 2003. 15. In December of 2003, the paternal grandmother filed a Petition for Special Relief with this Court whereby she requested that the mother be directed to remain in Cumberland County and the court to schedule a hearing on the petition and order the mother to be given make-up time. By order of December 30, 2003, this Court dismissed the petition without a hearing with a footnote in the Order indicating that if the mother has relocated and the current order of visitation is impractical the grandmother could petition the Court seeking another order of partial custody/visitation that would be warranted and practical. 16. In September of 2004, mother filed an action in Indiana asking the Indiana courts to assume jurisdiction on the custody case. The hearing on that case is scheduled for February 2005. 17. After the filing of the petition in Indiana, father and paternal grandmother initiated a petition in Cumberland County Pennsylvania requesting this Court to continue with jurisdiction of the case and to direct the mother to allow father and paternal grandmother to have periods of custody with the minor child. 18. This Court also issued an Order September 30, 2004 denying the petition for special relief f'ded by the father and paternal grandmother. 19. Mother filed preliminary objections in Cumberland County suggesting that the Indiana Court is the appropriate location to litigate the custody issues in this matter. 20. The Cumberland County Custody Conciliator has conducted a conference with the parties and their attorneys. The mother cleared the conference via telephone. The conciliator obtained various information to gather the stipulated facts as set forth in this Conciliation Report and also to address a recommended Order for purposes of resolving the immediate custody issues. The conciliator's recommendation on that matter is incorporated the attached Court Order. Date ROSALIE E. WALTERS, VS. STEVEN A. SMITH and MELISSA A. SMITH, : IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLt~,ID cOLrNTY, : PENNSYLVANIA : : No. 03-2385 CIVIL TERM Defendant : CUSTODY CERTIFICATE OF SERVICE I, Thomas M. Clark, Esquire hereby certify that on the '5th day of December, 2004, I served a copy of the Defendant's Brief Regarding Jurisdiction or in the Alternative Venue upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States mail, fn'st-class, postage Prepaid, as follows: Date: Andrew H. Shaw, Esquire 61 West Louther Street Carlisle, PA 17013-2936 Attorney for Defend~t, S~l~ven Smith Thomas M. Clark, EsqUire Attorney for Mel. issa A. Smith, Defendant WILEY, LENOX, COLGAN & MARZZACCO, P.C. 130 West Church Street, Suite 100 Dillsburg, PA 17019 (717) 432-9666 I.D. #85211 ROSALIE E. WALTERS, PLAINTIFF V. STEVEN A. SMITH and MELISSA A. SMITH, DEFENDANTS IN RE: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 03-2385 CIVIL TERM PETITION OF MELISSA A. SMITH CHALLENGING JURISDICTION OPINION AND ORDER OF COURT Bayley, J., December 8, 2004:-- On May 12, 2003, Rosalie E. Walters filed a complaint against her son, Steven A. Smith, and Melissa A. Smith, the father and mother of Alisha Destiny Smith, born November 25, 2001. The paternal grandmother sought visitation with her granddaughter. She lived in Gardners, Pennsylvania, the mother lived with Alisha in Mount Holly Springs, Pennsylvania, and the father was incarcerated in SCI Camp Hill, Pennsylvania. On August 15, 2003, the grandmother and the mother entered into an agreement which was made an order of court on November 21, 2003. The order provided the mother with "sole legal custody and primary physical custody" of ^lisha. It provided the grandmother visitation with ^lisha every other Saturday from 9:00 a.m. to 6:00 p.m. The father was not a party to the agreement, and no order has ever been entered with regard to his custody rights to ^lisha. On December 13, 2003, the grandmother filed a petition for special relief. She alleged that the mother intended to move with ^lisha to Indiana, and sought an order to prevent moving ^lisha to Indiana. An order entered on December 30, 2003, denied the petition. The court commented: 03-2385 CIVIL TERM The petition does not set forth any facts which would enable the paternal grandmother to prevent relocation by the mother with her daughter Alisha Smith, born November 25, 2001, who is in her physical custody pursuant to an order of November 21,2003. If the mother relocates .and the current order of visitation is impractical, the grandmother may petition under 23 Pa.C.S. Section 5313(a) to seek another order of partial custody/visitatio~n as may then be warranted and practical. In late December, 2003, the mother with Alisha moved to Munster, Indiana. On September '1, 2004, the mother filed a petition for custody of Alisha in the Lake Superior Court, Gary, Indiana. A hearing is scheduled in February, 2005. On September 27, 2004, approximately nine months after the mother and Alisha moved to Indiana, the paternal grandmother filed a petition in this court to modify the order of November 21,2003. She seeks new periods of visitation. On October '13, 2004, the, father, who now lives with his mother in Gardners, filed a petition for modify the order of November 21,2003.~ He seeks an order "granting Defendant Mother and Defendant Father shared legal custody of the child and by substantially altering the physical custody arrangements." The mother challenges jurisdiction of the petitions of both the paternal grandmother and the father. Pennsylvania enacted the new Uniform Child Custody Jurisdiction and Enforcement Act, 23 Pa.C.S. Section 5401 et seq., effective August 16, 2004. There has never been a custody order entered in this court regarding the rights of the father to Alisha. Therefore, Section 5421 of the Act titled "Initial child custody jurisdiction," is applicable. It provides: (a) General rule.mExcept as otherwise provided in section 5424 (relating to temporary emergency jurisdiction), a court of this Commonwealth has jurisdiction to make an initial child custody determination only if: (1) this Commonwealth is the home state of the child on the ~ He had been in prison from October, 2001 to August, 2004. -2- 03-2385 CIVIL TERM date of the commencement of the proceeding or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this Commonwealth but a parent or person acting as a parent continues to live in this Commonwealth; (2) a court of another state does not have jurisdiction under paragraph (1) or a court of the homE; state of the child has declined to exercise jurisdiction on the ground that this Commonwealth is the more appropriate forum under section 5427 (relating to inconvenient forum) or 5428 (relating to jurisdiction declined by reason of conduct) and: (i) the child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this Commonwealth other than mere physical presence; and (ii) substantial evidence is available in this Commonwealth concerning the child's care, protection, training and personal relationships; (3) all courts having jurisdiction under paragraph (1) or (2) have declined to exercise jurisdiction on the ground that a court of this Commonwealth is the more appropriate forum to determine the custody of the child under section 5427 or 5428; ,or (4) no court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2)or (3). (b) Exclusive jurisdictional basis.---Subsection (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this Commonwealth. (c) Physical presence and personall jurisdiction unnecessary.-- Physical presence of or personal jurisdiction over a party or a child is not necessary or sufficient to make a child custody determination. (Emphasis added.) Alisha has lived continuously in Indiana since the latter part of December, 2003. Indiana is Alisha's home state under Section 5421(a)(1). ,A court in Indiana has jurisdiction under Section 5421(a)(2), and has not declined to exercise that jurisdiction. Accordingly, Indiana is the jurisdiction to hear any custody complaint between the mother and father regarding Alisha. The father's petition will be dismissed. There is an existing custody order regarding Alisha in this court dated November 21, -3- 03-2385 CIVIL TERM 2003, between the paternal grandmother and the mother. Section 5422 of the UCCJA, titled Exclusive, continuing jurisdiction, provides: (a) General rule.--Except as otherwise provided in section 5424 (relating to temporary emergency jurisdiction), a court of this Commonwealth which has made a child custody determination consistent with section 5421 (relating to initial child custody jurisdiction) or 5423 (relating to jurisdiction to modify determination) has exclusive, continuing jurisdiction over the determination until: (1) a court of this Commonwealth determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this Commonwealth and that substantial evidence is no longer available in this Commonwealth concerning the child's care, protection, training and personal relationships; or (2) a court of this Commonwealth or a court of another state determines that the child, the child's parents and any person acting as a parent do not presently reside in this Commonwealth. (b) Modification where court does not have exclusive, continuing jurisdiction.--A court of this Commonwealth which has made a child custody determination and does not have exclusive, continuing jurisdiction under this section may modify that deterrnination only if it has jurisdiction to make an initial determination under section 5421. 2004, June 15, P.L. 236, No. 39, § 3, effective Aug. 16, 2004. (Emphasis added.) The paternal grandmother continues to live in Pennsylvania. Thus, she has a significant connection with this Commonwealth. Alisha has been living with her mother in Indiana for almost a year. The grandmother has not seen her since November 23, 2003. The order of November 21, 2003, granted the grandmother limited periods of visitation, not partial physical custody. She was not then in Ioco parentis with Alisha. She is a grandparent, and was not acting as a parent. Substantial evidence is no longer available in this Commonwealth concerning Alisha's care, protection, training and personal relationships. Accordingly, this court no longer has exclusive, contin.uing jurisdiction. Since there is no original jurisdiction -4- 03-2385 CIVIL TERM under Section 5421 of the UCCJA, the petition of the grandmother must be dismissed. ORDER OF COURT ~-~ day of December, 2004, IT IS ORDERED: AND NOW, this (1) The petition of Rosalie E. Walters to modify the court order of November 21,2003, IS DISMISSED FOR LACK OF JURISDICTION. (2) The petition of Steven A. Smith to modify the court order of November 21, 2003, IS DISMISSED FOR LACK OF JURISDICTION. Timothy J. Colgan, Esquire For Melissa A. Smith Andrew H. Shaw, Esquire For Rosalie E. Walters and Steven A. Smith By C, Edgar B. Bayley, J. :sal -5- ROSALIE E. WALTERS, PLAINTIFF V. STEVEN A. SMITH and MELISSA A. SMITH, DEFENDANTS 03-2385 CIVIL TERM IN RE: PETITION OF MELISSA A. SMITH CHALLENGING JURISDICTION IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA AND NOW, this ORDER OF COURT ~ day of December, 2004, IT IS ORDERED: (1) The petition of Rosalie E. Walters to modify the court order of November 21, 2003, IS DISMISSED FOR LACK OF JURISDICTION. ~imothy J. Colgan, Esquire For Melissa A. Smith (2) The petition of Steven A. Smith to modify the court order of November 21, 2003, IS DISMISSED FOR LACK OF JURISDICTION. By~e Court, Edgar B. Bayley, J. ~drew H. Shaw, Esquire For Rosalie E. Walters and Steven A. Smith :sal