HomeMy WebLinkAbout01-06647
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
STATE OF
PENNA.
EDWARD L. RABENSTEIN. II
No.
2001-6647 Civil Term
Plaintiff
VERSUS
MICHELLE R. RABENSTEIN,
Defendant
DECREE IN
DIVORCE
AND NOW,
V\~~
;IIU9;?' IT IS ORDERED AND
DECREED THAT
Edward L. Rabenstein, II
, PLAINTIFF,
AND
Michelle L. Rabenstein
, DEFENDANT,
ARE DIVORCED FROM THE BONDS OF MATRIMONY.
THE COURT RETAINS JURISDICTION OF THE FOLLOWING CLAIMS WHICH HAVE
BEEN RAISED OF REC<1Rp_IN THIS ACTION FOR WHICH A FINAL ORDER HAS NOT
VET BEEN ENTERED; W~
The Marriage Settlement Agreement dated September 24, 2002 and signed bv
the
is hereby incorporated into this
merged.
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Bv THE COURT:
ATTEST:
ROTHONOTARV
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EDWARD L. RABENSTEIN, II,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: CML ACTION - LAW
(tP41
: 2001-~ CML TERM
MICHELLE R. RABENSTEIN,
Defendant
: IN DIVORCE
PRAECIPE TO TRANSMIT RECORD
To the Prothonotary:
Transmit the record, together with the following information, to the court for entry of a
divorce decree:
Code.
1. Ground for Divorce: irretrievable breakdown under Section 3301 (c) of the Divorce..
2. Date and manner of service of complaint: A certified copy of the Complaint in
Divorce was served upon the defendant, Michelle R. Rabenstein on December 1, 2001, by
certified, restricted delivery mail, addressed to her at 46 McDonald Street Northwest, Concord,
North Carolina 28027. An Affidavit of Service was filed with the Prothonotary's Office on
December 13, 2001.
3. Complete either paragraph (a) or (b).
(a) Date of execution of the affidavit of consent required by Section 3301 (c)
of the Divorce Code: by plaintiff: September 23,2002; by defendant: April 3, 2002.
(b)(1) Date of execution ofthe affidavit required by Section 3301(d) of the
Divorce Code:
(b )(2) Date of filing and service of the plaintiff's affidavit upon the defendant:
4. Related claims pending: NONE.
5. Complete either (a) or (b).
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(a) Date and manner of service of the Notice of Intention to file Praecipe to
Transmit Record, a copy of which is attached:
(b) Date plaintiff's Waiver of Notice in Section 3301(c) Divorce was filed
with the Prothonotary: September 24, 2002.
Date defendant's Waiver of Notice in Section 3301(c) Divorce was filed
with the Prothonotary: April 4, 2002.
e , Esquire
or Plaintiff
Date: March 11, 2003
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MARRIAGE SETTLEMENT AGREEMENT
THIS AGREEMENT made thisd.~day Of~ ' 2002, by and between
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MICHELLE R. RABENSTEIN, (hereinafter referred to as "WIFE") and EDWARD L.
RABENSTEIN, II, (hereinafter referred to as "HUSBAND").
WITNESSETH:
WHEREAS, HUSBAND and WIFE were lawfully married on July 2, 1994, and
separated on or about October 29, 2001; and
WHEREAS, diverse, unhappy differences, disputes and difficulties have arisen between
the parties and it is the intention of HUSBAND and WIFE to live separate and apart for the rest
of their natural lives, and the parties hereto are desirous of settling fully and finally their
respective financial and property rights and obligations as between each other, including, but not
limited to the settling of all matters between them relating to the ownership and equitable
distribution of real and personal property, the settling of all claims and possible claims by one
against the other or against their respective estates, and the equitable distribution of property and
alimony for each party.
The parties hereto agree and covenant as follows:
1.
The parties intend to maintain separate and permanent domiciles and to live apart from
each other. It is the intent and purpose of this Agreement to set forth the respective rights and
duties of the parties while they continue to live apart from each other.
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2.
The parties have attempted to divide their matrimonial property in a manner which
conforms to a just and right standard, with due regard to the rights of each party. It is the intent
of the parties that such division shall be [mal and shall forever determine their respective rights.
The division of existing marital property is not intended by the parties to constitute in any way a
sale or exchange of assets.
3.
Further, the parties agree to continue living separately and apart from the other at any
place or places that he or she may select as they have heretofore been doing. Neither party shall
molest, harass, annoy, injure, threaten or interfere with the other party in any matter whatsoever.
Each party may carry on and engage in any employment, profession, business or other activity as
he or she may deem advisable for his or her sole use and benefit. Neither party shall interfere
with the uses, ownership, enjoyment or disposition of any property now owned and not specified
herein or property hereafter acquired by the other.
4.
The consideration for this contract and agreement is the mutual benefit to be obtained by
both of the parties hereto and the covenants and agreements of each of the parties to the other.
The adequacy of the consideration for all agreements herein contained is stipulated, confessed,
and admitted by the parties, and the parties intend to be legally bound hereby.
Each party to the Agreement acknowledges and declares that he or she,
respectively:
2
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a. Is represented by counsel of his or her own choosing, or if not represented by
counsel, understands that he or she has the right to counsel: HUSBAND is
represented by Douglas G. Miller, Esquire of Irwin, McKnight & Hughes; WIFE
is represented by Lucy Johnston-Walsh, Esquire of the Dickinson Family Law
Clinic;
b. Is fully and completely informed of the facts relating to the subject matter of
this Agreement and of the rights and liabilities of the parties;
c. Is entering into this Agreement voluntarily after receiving the advice of
counselor after choosing not to consult an attorney;
d. Has given careful and mature thought to the making of this Agreement;
e. Has carefully read each provision of this Agreement; and
f. Fully and completely understands each provision of this Agreement, both as to
the subject matter and legal effect of each provision.
This Agreement shall become effective immediately as of the date of execution.
5.
It is the purpose and intent of this Agreement to settle forever and completely the interest
and obligations of the parties in all property that they own separately, and all property that would
qualifY as marital property under the Pennsylvania Divorce Code, Title 23, Section 401(e), and
that is referred to in this Agreement as "Marital Property", as between themselves, their heirs and
assigns. The parties have attempted to divide their Marital Property in a manner that conforms to
a just and fair standard, with due regard to the rights of each party. The division of existing
Marital Property is not intended by the parties to constitute in any way a sale or exchange of
assets, and the division is being effected without the introduction of outside funds or other
property not constituting a part of the marital estate.
3
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It is the further purpose of this Agreement to settle forever and completely any obligation
under the Pennsylvania Divorce Code relating to spousal support or alimony.
6.
Each party represents and warrants that he or she has made a full and fair disclosure to
the other of all of his or her property interests of any nature, including any mortgage, pledge,
lien, charge, security interest, encumbrance, or restriction to which any property is subject. Each
party further represents that he or she has made a full and fair disclosure of all debts and
obligations of any nature for which he or she is currently liable or may become liable. Each
further represents and warrants that he or she has not made any gifts or transfers for inadequate
consideration of Marital Property without the prior consent of the other.
Each Party acknowledges that, to the extent desired, he or she has had access to all joint
and separate State and Federal Tax Returns filed by or on behalf of either or both Parties during
marrtage.
7.
REAL ESTATE: HUSBAND and WIFE hereby certify that they currently do not own
any real estate in joint names. WIFE hereby waives all right, title and interest which she may
have in any real property of the HUSBAND. HUSBAND likewise waives any right, title and
interest which he has in the real property of WIFE.
8.
SUPPORT: It is the mutual desire of the parties that HUSBAND will not be required to
pay support to WIFE and that WIFE will not provide any financial support to HUSBAND. The
4
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parties also waive any right they have to receive alimony payments from the other following the
entry of the Divorce Decree in this matter.
9.
PERSONAL PROPERTY: The parties agree that the personal property has been
divided to the parties' mutual satisfaction. WIFE hereby waives all right, title and interest which
she may have in any personal property of the HUSBAND. HUSBAND likewise waives any
right, title and interest which he has in the personal property of WIFE. Henceforth, each of the
parties shall own, have and enjoy independently of any claim or right of the other party, all items
of personal property of every kind, nature and description and wherever situated, which are then
owned or held by or which may hereafter belong to HUSBAND or WIFE with full power to
HUSBAND or WIFE to dispose of the same as fully and effectually, in all respects and for all
purposes as ifhe or she were unmarried.
10.
AUTOMOBILES: HUSBAND hereby waives all right, title and interest in any vehicle
that WIFE currently owns or may own in the future. WIFE shall hold HUSBAND harmless for
any and all liability associated with the use and purchase of any vehicle she may own, and shall
be solely responsible for all insurance and other [mancial responsibility associated with said
vehicle. In particular, WIFE shall assume all liability for and pay for and indemnifY and hold
harmless HUSBAND against the loan in favor of Household Auto Finance, as well as any and all
other loans, fees, or obligations with regard to the 2001 Mitsubishi Mirage which has been
repossessed from WIFE.
WIFE hereby waives all right, title and interest in any vehicle that HUSBAND currently
owns or may own in the future. HUSBAND shall hold WIFE harmless for any and all liability
5
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associated with the use and purchase of any vehicle he may own, and shall be solely responsible
for all insurance and other financial responsibility associated with said vehicle.
II.
MARITAL DEBTS: It is mutually agreed by and between the parties that WIFE shall
assume all liability for and pay and indemnify the HUSBAND against all debts incurred by
WIFE after the date of separation. WIFE represents and warrants to HUSBAND that since the
parties' marital separation she has not contracted or incurred any debt or liability for which
HUSBAND or his estate might be responsible and WIFE further represents and warrants to
HUSBAND that she will not contract or incur any debt or liability after the execution of this
Agreement, for which HUSBAND or his estate might be responsible. WIFE shall indemnify
and hold HUSBAND harmless from any and all claims or demands made against him by reason
of debts or obligations incurred by her.
HUSBAND shall assume all liability for and pay and indemnify WIFE against all debts
incurred by HUSBAND after the date of separation. HUSBAND represents and warrants to
WIFE that since the parties' marital separation he has not contracted or incurred any debt or
liability for which WIFE or her estate might be responsible and HUSBAND further represents
and warrants to WIFE that he will not contract or incur any debt or liability after the execution
of this Agreement, for which WIFE or her estate might be responsible. HUSBAND shall
indemnify and hold WIFE harmless from any and all claims or demands made against her by
reason of debts or obligations incurred by him.
12.
INSURANCE AND EMPLOYEE BENEFITS: The parties agree that any life
insurance policies on the life of HUSBAND or WIFE or any other employee benefits, including
but not limited to retirement, profit sharing or medical benefits of either party, shall be their own.
6
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WIFE waives all right, title and claim to HUSBAND'S employee benefits, and HUSBAND
waives all right, title, and claim to any of WIFE'S employee benefits.
13.
BENEFITS AND BANK ACCOUNTS: WIFE agrees to waive all right, title and
interest which she may have in the savings or checking or any other bank accounts of the
HUSBAND and likewise HUSBAND agrees to waive all right, title and interest which he may
have in the savings or checking or any other bank accounts of WIFE.
14.
DIVORCE: The parties both agree to cooperate with each other in obtaining a final
divorce of the marriage. It is agreed that the parties will execute and file the consents necessary
to obtain the divorce. Any party who fails to cooperate with obtaining the Divorce shall pay all
the costs and legal fees of the party who is seeking the divorce.
15.
BREACH: If either party breaches any provisions of this Agreement, the other party
shall have the right, at his or her election, to sue for damages for such breach or seek such other
remedies or relief as may be available to him or her, and the party breaching this contract shall
be responsible for payment of legal fees and costs incurred by the other in enforcing their rights
under this Agreement.
16.
ADDITIONAL INSTRUMENTS: Each of the parties shaH from time to time, at the
request of the other, execute, acknowledge and deliver to the other party any and all further
7
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instruments that may be reasonably required to give full force and effect to the provisions of this
Agreement.
17.
VOLUNTARY EXECUTION: The provisions of this Agreement and their legal effect
have been fully explained to the parties by their respective counsel, are fully understood by both
parties, and each party acknowledges that the Agreement is fair and equitable, that it is being
entered into voluntarily, and that it is not the result of any duress or undue influence. It is the
parties' intent that this Agreement does not merge with the Divorce Decree, but rather shall
continue to have independent contractual significance. Each party maintains his or her
contractual remedies or any other remedies provided by law or statute. Those remedies shall
include, but not be limited to, damages resulting from breach of this Agreement, specific
enforcement of this Agreement and remedies pertaining to failure to comply with an order of
court or agreement pertaining to equitable distribution, alimony, alimony pendente lite, counsel
fees and costs as set forth in the Pennsylvania Divorce Code or other similar statutes now in
effect and as amended or hereafter enacted.
18.
ENTIRE AGREEMENT: This Agreement contains the entire understanding of the
parties and there are no representations, warranties, covenants or undertakings other than those
expressly set forth herein.
8
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19.
APPLICABLE LAW: This Agreement shall be construed under the Laws of the
Commonwealth of Pennsylvania.
20.
PRIOR AGREEMENTS: It is understood and agreed that any and all property
settlement agreements which mayor have been executed prior to the date and time of this
Agreement are null and void and of no effect.
21.
PAYMENT OF COSTS: Each party shall be responsible for their own attorneys fees
and costs incurred in the settlement of the divorce and economic issues surrounding this divorce.
22.
WAIVER OF CLAIMS AGAINST ESTATES: Except as herein otherwise provided,
each party may dispose of his or her property in any way, and each party hereby waives and
relinquishes any and all rights he or she may now have or hereafter acquire, under the present or
future laws of any jurisdiction, to share in the property or the estate of the other as a result of the
marital relationship, including without limitation, dower, curtesy, statutory allowance, widow's
allowance, right to take in intestacy, right to take against the Will of the other, and right to act as
administrator or executor of the other's estate, and each will, at the request of the other, execute,
acknowledge and deliver any and all instruments which may be necessary or advisable to carry
into effect this mutual waiver and relinquishment of all such interests, rights and claims.
9
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IN WITNESS WHEREOF, the parties hereunto have set their hands and seals the day
and year first above written.
WITNESSES:
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EDWARD L. RABENSTEIN, II
(SEAL)
STATE OF
SS:
COUNTY OF
PERSONALLY APPEARED BEFORE ME, this A day of
1~
2002, a Notary Public, in and for the Commonwealth of Pennsylvania and County of
Cumberland, MICHELLE R. RABENSTEIN, known to me (or satisfactorily proven) to be the
person whose name is subscribed to the within Marriage Settlement Agreement, and
acknowledges that she executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
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COMMONWEALTH OF PENNSYLVANIA
SS:
COUNTY OF CUMBERLAND
PERSONALLY APPEARED BEFORE ME, this ~1fC/i day of~b1€m~B;t7
2002, a Notary Public, in and for the Commonwealth of Pennsylvania and County of
Cumberland, EDWARD L. RABENSTEIN, II, known to me (or satisfactorily proven) to be
the person whose name is subscribed to the within Marriage Settlement Agreement, and
acknowledges that he executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
Notarial Seal
Martha L. Noel, Notary PubliC
Carlisle Bom, Cumn"nanu':ounty
My Commission F>:,plro:~~ \jepl '8. 2003
Member, Penn~V1v"a~;;~~;-;iWof! ot Notaries
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EDWARD L. RABENSTEIN, II
PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
01-6647 CIVIL ACTION LAW
MICHELLE R. RABENSTEIN
DEFENDANT
IN CUSTODY
ORDER OF COURT
AND NOW,
Wednesday, December 05, 2001
, upon consideration of the attached Complaint,
it is hereby directed that parties and theirrespective counsel appear before Jacqneline M. Verney, Esq. , the conciliator,
at 4th Floor, Cumberland County Courthonse, Carlisle on Tuesday, Jannary 08, 2002 at 1:30 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 aU existing Protection from Abuse orders,
Special Relief orders, and Custody orders to the conciliator 48 hours prior to scheduled hearing.
FOR TIlE COURT,
By: Isl
ac ueline M. Verne Es
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 ATIORNEY AT ONCE. IF YOU DO NOT
HA VB AN ATIORNEY OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET
FORTIl BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, Pennsylvania 17013
Telephone (717) 249-3166
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iNOV 3 0 20011.;D
EDWARD L. RABENSTEIN, II,
Plaintiff,
IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
MICHELLE R. RABENSTEIN,
Defendant.
2001 - t..~ "7 CIVIL TERM
IN DIVORCE I CUSTODY
ORDER OF COURT
AND NOW, this day of ,2001, upon consideration of the
attached Complaint, it is hereby directed that the parties and their respective counsel appear
before Esquire, the conciliator, at
, on the_day of ,2001 at .M.
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 defme 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 this conference may provide grounds for entry of a
temporary or permanent order.
FOR THE COURT,
By:
Custody Conciliator
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET
FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, Pennsylvania 17013
(717) 249-3166
1-800-990-9108
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EDWARD L. RABENSTEIN, II,
Plaintiff,
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
CML ACTION - LAW
2001 - t~q? CML TERM
MICHELLE R. RABENSTEIN,
Defendant.
IN DIVORCE I CUSTODY
NOTICE
You have been sued in court. If you wish to defend against the claims set forth in the
following pages, you must take prompt action. You are warned that if you fail to do so, the case
may proceed without you and a decree in divorce or annulment may be entered against you by
the court. A judgment may also be entered against you for any other claim or relief requested in
these papers by the plaintiff. You may lose money or property or other rights important to you,
including custody or visitation of your children.
When the ground for divorce is indignities or irretrievable breakdown of the marriage,
you may request marriage counseling. A list of marriage counselors is available in the Office of
the Prothonotary, Cumberland County Courthouse, Carlisle, Pennsylvania 17013.
IF YOU DO NOT FILE A CLAIM FOR ALIMONY, DMSION OF PROPERTY,
LAWYER'S FEES OR EXPENSES BEFORE A DIVORCE OR ANNULMENT IS
GRANTED, YOU MAY LOSE THE RIGHT TO CLAIM ANY OF THEM.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU
DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE
THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL
HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, Pennsylvania 17013
717-249-3166
1-800-990-9108
AMERICANS WITH DISABILITIES
ACT OF 1990
The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with
Disabilities 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.
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EDWARD L. RABENSTEIN, II,
Plaintiff,
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION -LAW
2001 - (. (. <11 CIVIL TERM
MICHELLE R. RABENSTEIN,
Defendant.
IN DIVORCE I CUSTODY
COMPLAINT IN DIVORCE AND CUSTODY
AND NOW, comes the Plaintiff, Edward L. Rabenstein, II, by and through his attorneys,
Irwin, McKnight & Hughes, and files this Complaint in Divorce and Custody against the Defendant,
Michelle R. Rabenstein, representing as follows:
I. The Plaintiff is Edward L. Rabenstein, II, an adult individual residing at 20
Regency Woods South, Carlisle, Cumberland County, Pennsylvania 17013.
2. The Defendant is Michelle R. Rabenstein, an adult individual currently residing at
46 McDonald Street NW, Concord, North Carolina 28027.
COUNT I - DIVORCE PURSUANT TO SECTIONS 330Hc)
AND 330Hd) OF THE DIVORCE CODE
3. The averments of paragraphs one (1) through two (2) of this Complaint are made
a part hereof and incorporated herein by reference.
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4. The Plaintiff has been a resident of the Commonwealth of Pennsylvania at least
six months prior to the filing of this action in divorce.
5. The Plaintiff and the Defendant were married on July 2, 1994 in Silver Spring
Township, Mechanicsburg, Pennsylvania.
6. There have been no prior actions of divorce or for annulment between the parties.
7. There is one (I) child born to this marriage; namely, Brandon J. Rabenstein, born
August 10,1995, age 6 years.
8. Pursuant to the Divorce Code, Sections 3301(c) and 3301(d), the Plaintiff avers as
the grounds upon which this action is based that the marriage between the parties is irretrievably
broken.
9. The Plaintiff avers that he has been advised of the availability of counseling and
that said party has the right to request that the court require the parties to participate in
counseling. Plaintiff's signed Marriage Counseling Affidavit is attached hereto and incorporated
herein by reference as Exhibit "A."
WHEREFORE, the Plaintiff respectfully requests judgment dissolving the marriage
between the two parties.
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COUNT IT - CUSTODY
10. The averments of paragraphs one (1) through nine (9) ofthis Complaint are made
a part hereof and incorporated herein by reference.
11. Upon information and belief, the parties' minor child is presently in the custody
of Defendant in North Carolina.
12. Prior to October 29, 2001, the parties' minor child resided with Plaintiff at his
home located at 20 Regency Woods South, Carlisle, Cumberland County, Pennsylvania 17013,
even during Defendant's separation from Plaintiff during October 2001.
13. On or about October 26, 2001, Defendant informed Plaintiff that she desired to
reconcile their differences and moved back into the residence with Plaintiff and their minor child.
14. On October 29,2001, Plaintiff returned home and discovered that Defendant had
removed her belongings and the belongings of their minor child from the residence.
15. Defendant had not informed Plaintiff that she was moving, nor that she was taking
the parties minor child, nor the location to which she was intending to relocate.
16. It was only until several days later that Defendant contacted Plaintiff by telephone
and informed him that she and their minor child were living in North Carolina.
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17. Prior to Defendant's unannounced removal of the child to North Carolina on
October 29, 2001, the child attended Silver Spring Elementary School in Cumberland County,
Pennsylvania.
18. Most of the child's extended family also reside in Pennsylvania, and to the best of
Petitioner's information and belief, no member of the extended family resides in North Carolina.
19. The child's friends and playmates also reside ill Cumberland County,
Pennsylvania.
20. Since the child's birth, he has resided primarily with Plaintiff and has a close and
loving bond with Plaintiff.
21. Defendant, by her actions, has prevented any contact by Petitioner with the child
except by telephone since October 29, 2001.
22. Plaintiff desires primary physical custody and sole legal custody of the parties'
minor child.
23. The removal of the child by Defendant to North Carolina is not in the best interest
or welfare of the parties' minor child.
24. Defendant's removal of the minor child to North Carolina has severely disrupted
the day-to-day life of the child, and had irreparably harmed Plaintiff.
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25. The best interests and permanent welfare of the child requires the Court grant the
Plaintiff s request as set forth above.
26. Plaintiff has no information of a custody proceeding concerning the child pending
in a court of this Commonwealth or any other location.
27. Plaintiff does not know of a person not a party to the proceedings who has
physical custody of the child and claims to have custody or visitation rights with respect to the
child.
WHEREFORE, the Plaintiff respectfully requests that an Order of Court be entered
granting him primary physical custody and sole legal custody of the parties' minor child,
Brandon J. Rabenstein.
Respectfully submitted,
IRWIN, McKNIGHT & HUGHES
By:
Doug as
Supreme ourt J.D. No. 83776
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, Pennsylvania 17013-3222
(717) 249-2353
Date: November 27,2001
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VERIFICATION
The foregoing document is based upon information which has been gathered by my
counsel and myself in the preparation of this action. I have read the statements made in this
document and they are true and correct to the best of my knowledge, information and belief. I
understand that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section
4904, relating to unsworn falsification to authorities.
&~//tiJ!:!
EDWARD L. RABENSTEIN, II
Date: November 26 .2001
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EXHIBIT" A"
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EDWARD L. RABENSTEIN, II,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
2001- CIVIL TERM
MICHELLE R. RABENSTEIN,
Defendant IN DIVORCE
PLAINTIFF'S MARRIAGE COUNSELING AFFIDAVIT
The plaintiff, being duly sworn according to law, deposes and says:
1. I have been advised of the availability of marriage counseling and understand that I
may request that the court require that my spouse and I participate in counseling.
2. I understand that the court maintains a list of marriage counselors in the Prothonotary's
Office, which list is available to me upon request.
3. Being so advised, I do not request that the court require that my spouse and I
participate in counseling prior to a divorce decree being handed down.
I verify that the statements made in this affidavit are true and correct. I understand that
false statements herein made are subject to the penalties of 18 Pa. C.S. Section 4904 relating to
unsworn falsification to authorities.
Date: November 26 , 2001
t~~d;gL?lf!5;-
EDWARD L. RABENSTEIN, II
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Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAN)) COUNTY, PENNSYLVANIA
v.
: CIVIL ACTION - LAW
: v.....n
: 2001 --'"66'f1t CIVIL TERM
MICHELLE R. RABENSTEIN,
Defendant
: IN DIVORCE
PLAINTIFF'S AFFIDAVIT OF CONSENT
1. A Complaint in Divorce under Section 3301(c) of the Divorce Code was filed on
November 27,2001.
2. The marriage of plaintiff and defendant is irretrievably broken and ninety days have
elapsed from the date of the filing of the complaint.
3. I consent to the entry of a final decree in divorce.
4. I understand that I may lose rights concerning alimony, division of property, lawyer's
fees or expenses if! do not claim them before a divorce is granted.
I verifY that the statements made in this affidavit are true and correct. I understand that
false statements herein made are subject to the penalties of 18 Pa. C. S. Section 4904 relating to
unsworn falsification to authorities.
Date: 9 - ')(~ -0 )./
~~~
EDWARD L. RABENSTEIN, II
Plaintiff
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Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: CIVIL ACTION - LAW
(.c.'i1
: 2001-1J02t7 CIVIL TERM
MICHELLE R. RABENSTEIN,
Defendant
: IN DIVORCE
WAIVER OF NOTICE OF INTENTION TO REOUEST
ENTRY OF A DIVORCE DECREE UNDER
SECTION 3301(c) OF THE DIVORCE CODE
I. I consent to the entry of a final Decree of Divorce without notice.
2. I understand that I may lose rights concerning alimony, division of property, lawyer's
fees or expenses in do not claim them before a divorce is granted.
3. I understand that I will not be divorced until a divorce decree is entered by the Court
and that a copy ofthe decree will be sent to me immediately after it is filed with the
Prothonotary.
I verify that the statements made in this affidavit are true and correct. I understand that
false statements herein made are subject to the penalties of 18 Pa. C.S. Section 4904 relating to
unsworn falsification to authorities.
Date: C; - J: 3 .-{j d
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EDWARD L. RABENSTEIN, II
Plaintiff
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Plaintiff
:IN THE COURT OF COMMON PLEAS OF
:CUMBERLAND COUNTY, PENNSYLVANIA
v.
:CML ACTION-LAW
:IN DIVORCE
MICHELLE RABENSTEIN,
Defendant
:NO. 01-6647 CIVIL TERM
AFFIDAVIT OF CONSENT
1. A complaint in divorce under ~3301(c) of the Divorce Code was filed on November 27,
2001.
2. The marriage of plaintiff and defendant is irretrievably broken and ninety days have
elapsed from the date of filing and service of the Complaint.
3. I consent to the entry of a final decree of divorce after service of notice of intention to
request entry of the decree.
I verifY that the statements made in this affidavit are true and correct. I understand that
false statements herein are made subject to the penalties of 18 Pa.C.S. ~4904 relating to unsworn
falsification to authorities.
Date: ty- 3- o~
#/IItJli;)
c elle Rabenstein, Defendant
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Plaintiff
:IN THE COURT OF COMMON PLEAS OF
:CUMBERLAND COUNTY, PENNSYLVANIA
v.
: CIVIL ACTION-LAW
:IN DIVORCE
MICHELLE RABENSTEIN,
Defendant
:NO. 01-6647 CIVIL TERM
W AlYER OF NOTICE OF INTENTION TO REOUEST ENTRY
OF A DIVORCE DECREE UNDER 63301(c) AND 63301(d)
OF THE DIVORCE CODE
1. I consent to the entry of a fmal decree of divorce without notice.
2. I understand that I may lose rights concerning alimony, division of property, lawyer's
fees or expenses if! do not claim them before a divorce is granted.
3. I understand that I will not be divorced until a divorce decree is entered by the Court and
that a copy of the decree will be sent to me immediately after it is filed with the prothonotary.
I verify that the statements made in this affidavit are true and correct. lunderstand that
false statements herein are made subject to the penalties of 18 Pa.C.S. 94904 relating to unsworn
falsification to authorities.
Date:~-_~ - 0;;(
IJ/I::J/et\ti;
e Ie Ra enste , Defendant
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EDWARD L. RABENSTEIN, II,
Plaintiff
iDEe 1 8 2001 ~~
IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
MICHELLE R. RABENSTEIN,
Defendant
200Q ctS12 CIVIL TERM
o I-l" lRl.-f'1
IN DIVORCE/CUSTODY
AFFIDAVIT OF SERVICE OF COMPLAINT
PURSUANT TO PA. R.C.P. RULE NO. 192M (a)(1)(i)
COMMONWEALTH OF PENNSYLVANIA
SS:
COUNTY OF CUMBERLAND
NOW, Douglas G. Miller, Esquire, being duly sworn according to law, does depose and
state:
1. That he is a competent adult and attorney for the plaintiff in the captioned action in
divorce.
2. That a certified copy of the Complaint in Divorce and Custody as well as a certified
copy of the Petition for Special Relief were served upon the defendant, Michelle R. Rabenstein,
on December 1, 2001, by certified, restricted delivery mail, addressed to her at 46 McDonald
Street Northwest, Concord, North Carolina 28027, with Return Receipt Number 7099 3400 0018
49972916.
3. That the said receipt for certified mail is signed and attached hereto and made a part
hereof.
I verify that the statements made in this affidavit are true and correct. I understand that
false statements herein made are subject to the penalties of 18 Pa. C. S. Section 4904, relating to
unsworn falsification to authorities.
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D U AS G. MILLER, ESQUIRE
Attorney for Plaintiff
Date: December R, 2001
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EDWARD L. RABENSTEIN, II,
Plaintiff
VS.
MICHELLE R. RABENSTEIN,
Defendant
* IN THE COURT OF COMMON PLEAS
* CUMBERLAND COUNTY,
* PEI'iINSYL VANIA
*
* NO. 2001-6647
*
* CIVIL ACTION - LAW
* IN DIVORCE/CUSTODY
AFFIDAVIT OF SERVICE
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF DAUPHIN
: ss.
AND NOW, this 13th day of December, 2001 personally appeared before me, a Notary
Public in and for the aforesaid Commonwealth and County, Jennifer L. Frechette, Esquire, who
being duly sworn according to law, deposes and says that on December 13, 2001, she hand delivered
a certified copy of Defendant's Response to Plaintiff's Petition for Special Relief to Douglas Miller,
Esquire, Attorney for Edward Rabenstein, II.
I verify that the statements made in this affidavit ar.e true.and correct. I understand that false
falsification to authorities.
statements herein made are subject to the penalties of 18 Pa. C.S. Section 4904, relati
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sworn
Sworn toan~subscribed before me
on this cl- day of V (' 0 .oJ::N:
200!.
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Nota Public \
Notarial Seal
Misty D. Lehman, Notary Public
Harrisburg, Dauphin County
My Commission Expires Aug. 2, 2004
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EDWARD L. RABENSTEIN, II, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYL VANIA
V. : CIVIL ACTION - LAW
MICHELLE R. RABENSTEIN, : NO. 2001-6647 CIVIL TERM
Defendant
: IN CUSTODY
ORDER OF COURT
AND NOW, this ~ dayof J~ , 2002, upon
consideration of the attached Custody ConciliatIOn Repo , It IS ordered and dIrected as
follows:
1. A Hearing is scheduled in court~~o. ;;2 , of the Cumberland
County Court House, on the 3m.. day of - , 2002, at ~: <Is
o'clock,...A.. M., at which time testimony will be taken. For purposes of this Hearing,
the Father shall be deemed to be the moving party and shall proceed initially with
testimony. Counsel for each party shall file with the Court and opposing counsel a
Memorandum setting forth each party's position on custody, a list of witnesses who will
be expected to testify at the Hearing and a summary of the anticipated testimony of each
witness. These Memoranda shall be filed at least ten days prior to the Hearing date.
2. Pending further Order of Court or agreement of the parties, the following
shall remain in effect:
3. The Father, Edward 1. Rabenstein, II, and the Mother, Michelle R.
Rabenstein shall have shared legal custody of Brandon 1. Rabenstein, born August 10,
1995. Each parent shall have an equal right, to be exercised jointly with the other parent,
to make all major non-emergency decisions affecting the child's general well-being
including, but not limited to, all decisions regarding his health, education and religion.
4. Pending a hearing, Mother shall have primary physical custody of the
child.
5. Pending a hearing, Father shall have the following period of partial
physical custody of the child: Saturday, February 16,2002 at or before 4:00 p.m. until
Monday February 18,2002 at 10:00 a.m.
6. Mother shall be responsible for transportation of the child.
7. Father shall have liberal telephone contact with the child.
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8. The parties may modify this Order by mutual agreement. In the absence
of mutual consent, the terms of this Order shall control.
Edgar B. Bayley,
J.
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Jennifer Frechette, Esquire, counsel for Mother > ~ ~ d. o,/.o:z..
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EDWARD L. RABENSTEIN, n, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYL VANIA
V. : CIVIL ACTION - LAW
MICHELLE R. RABENSTEIN, : NO. 2001-6647 CIVIL TERM
Defendant
: IN CUSTODY
PRIOR JUDGE: EDGAR B. BAYLEY
CUSTODY CONCILIATION SUMMARY REPORT
IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL
PROCEDURE 1915.3-8, the undersigned Custody Conciliator submits the following
report:
1. The pertinent information concerning the Child who is the subject ohhis
litigation is as follows:
NAME
CURRENTLY IN CUSTODY OF
DATE OF BIRTH
Brandon 1. Rabenstein
August 10, 1995
Mother
2. A Conciliation Conference was held January 30, 2002 with the following
individuals in attendance: The Father, Edward 1. Rabenstein, with his counsel, Douglas
G. Miller, Esquire; Mother, Michelle R. Rabenstein, was present by telephone; her
counsel, Jennifer Frechette, Esquire was present at the conference.
3. The Honorable Edgar B. Bayley previously entered an Order on December
13, 200 1 granting Father physical custody of the child over the Christmas holiday.
4. Father's position on custody is as follows: Father seeks shared legal and
primary physical custody. Father maintains that Mother moved to North Carolina on
October 29,2001, removing him from his school, without notice to Father with the intent
to deny Father access to the child. He has a close relationship with the child, has been
active in all facets of the child's care and nurturing. He believes Mother moved to North
Carolina to be with her boyfriend. Father denies that he refused to consider medication
for the child's ADHD.
5. Mother's position on custody is as follows: Mother seeks shared legal
custody and primary physical custody. Mother maintains that she moved to North
Carolina for a better job. She is living with her boyfriend, but the location is close to the
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child's school so that she walks him to school everyday. He is in full day kindergarten
presently. Mother suggests that Father was opposed to the child's ADHD medication.
6. The Conciliator recommends an Order in the form as attached scheduling
a Hearing and granting Father physical custody of the child from February 16-18,2002.
It is expected that the Hearing will require one half day.
J- -/-O:J-
Date
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ac eline M. Verney, Esquire
Custody Conciliator
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EDWARD L. RABENSTEIN, II,
Plaintiff/Petitioner,
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
2001 - 6674 CIVIL TERM
MICHELLE R. RABENSTEIN,
Defendant/Respondent.
IN DIVORCE / CUSTODY
PRE-HEARING MEMORANDUM
OF PLAINTIFF EDWARD L. RABENSTEIN. II
AND NOW, comes the Plaintiff, Edward L. Rabenstein, II, by and through his attorneys,
Irwin, McKnight & Hughes, and submits the following Pre-Hearing Memorandum:
I. HISTORY OF THE CASE
The parties in this action were married on July 2, 1994, and most recently separated on or
about October 29, 2001. Prior to that date, the parties were residing together and were both
residents of Cumberland County, Pennsylvania. The parties are the natural parents of the minor
child, Brandon J. Rabenstein, born August 10, 1995, and currently 6 years old. Plaintiff, Edward
L. Rabenstein, II, ("Father"), initiated the action by filing a Complaint in Divorce and Custody
on November 27, 2001. In that Petition, Father sought primary physical custody of the minor
child. Plaintiff also simultaneously filed a Petition for Special Relief on November 27, 2001,
seeking the return of the minor child to the Commonwealth of Pennsylvania as well as primary
physical and sole legal custody. Defendant is Michelle R. Rabenstein ("Mother"), who is
currently residing in North Carolina with the minor child.
A hearing on the Petition for Special Relief was held before the Court on December 13,
2001. At the hearing, an Order of Court was issued granting temporary physical custody of the
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minor child to Mother pending the outcome of a conciliation conference scheduled for January 8,
2002. In accordance with the Order, Father had custody of the minor child from Saturday,
December 22, 2001, until Sunday, December 30, 2001, and Mother was responsible for
transportation.
Following a scheduling delay with the Conciliator, the conciliation conference was held
on January 30, 2002. By agreement of counsel, Mother participated by telephone. The parties,
however, were not able to reach an agreement as to custody. On February 7, 2002, an Order of
Court was issued scheduling a Hearing for April 3, 2002, maintaining physical custody with
Mother, and establishing another period of custody with Father.
II. STATEMENT AS TO CUSTODY
Father is seeking primary physical custody of the minor child. The parties fust separated
for approximately one year from 1999 until 2000, at which time they reconciled and began living
with one another again. During this first period of separation, Father had custody of the minor
child for most periods of time except for when he was working. In the beginning of October
2001, the parties again separated when Mother removed herself from the marital residence.
Mother moved back in with Father on or about Friday, October 26, 2001, at which time Father
believed that the parties had reconciled their differences. Father does not know the exact
location or locations where Mother was living during the several weeks in October 2001. During
that time, however, Father had sole custody of the minor child and Mother's only attempts at
contact with the minor child during that time were a couple telephone calls.
Following what Father thought was the parties' second reconciliation on Friday, October
26,2001, he went hunting on Monday, October 31, 2001. Upon returning to the residence, he
2
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discovered that Mother had removed her belongings and the belongings of the minor child.
Mother had not previously informed Father that she was moving, nor that she was taking the
minor child, nor the location to which she moved. Father subsequently contacted the Silver
Spring Elementary School where the minor child attended school, at which time Father was
notified that a request for a transfer of records had been made from a school in North Carolina.
It was not until several days later that Mother contacted Father by telephone to inform him that
she and the minor child were in North Carolina.
Mother's stated reason for the move is that she is able to receIve proper medical
treatment for the minor child's alleged diagnosis of Attention Deficit Hyperactivity Disorder
("ADHD"). At no time had the minor child been diagnosed with ADHD while residing in
Pennsylvania, nor according to Father had school officials recommended such testing.
Furthermore, appropriate treatment for such a diagnosis is not limited to North Carolina.
No member of either parties' extended family resides in North Carolina. Furthermore, no
friends or playmates of the minor child resided in North Carolina prior to Mother's unilateral
actions in relocating him there. The extreme distance between the parties places a heavy burden
upon Father in maintaining a relationship with the minor child. The current arrangement is also
contrary to Father's history of primary custody of the minor child. The Father has also
maintained steady employment, whereas Mother has a history of moving from job to job.
Moreover, the problems in working out a mutually satisfactory custody arrangement are due to
Mother's unilateral actions in moving herself and the minor child to North Carolina without prior
notification to Father and without prior Court approval.
3
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III. WITNESSES
Plaintiff anticipates calling the following persons as witnesses:
a. Edward 1. Rabenstein, II, to testify about his relationship with his child and
parenting skills;
b. Patrick Rabenstein, Plaintiffs brother, to testify as to the parties' relationship and
interaction with the minor child and their parenting skills;
c. Joann Davis, Plaintiffs aunt to testify as to the parties' relationship and
interaction with the minor child and their parenting skills.
Plaintiff reserves the right to call any witnesses identified by Defendant or to produce
rebuttal witnesses.
IV. CONCLUSION
Father respectfully seeks the entry of an Order of Court granting him primary physical
custody of the minor child and the return ofthe child to Cumberland County, Pennsylvania.
Respectfully Submitted,
IRWIN, McKNIGHT & HUGHES
By:
Date: March 25, 2002
Douglas . Miller, squire
Supreme ourt l.D. No. 83776
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, Pennsylvania 17013
(717) 249-2353
Attorney for Plaintiff,
Edward 1. Rabenstein, II
4
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CERTIFICATE OF SERVICE
I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy
of the foregoing document upon the persons indicated below by first class United States mail,
postage paid in Carlisle, Pennsylvania 17013, on the date set forth below:
Ms. Carol Verish and
Lucy Johnston-Walsh, Esquire
Family Law Clinic
45 North Pitt Street
Carlisle, P A 17013
Date: March 25, 2002
IRWIN, McKNIGHT & HUGHES
Douglas
Supreme urt LD. No. 83776
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, Pennsylvania 17013-3222
(717) 249-2353
Attorney for Plaintiff,
Edward L. Rabenstein, II
5
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EDWARD L RABENSTEIN, II,
Plaintiff
MI1Rd{\ 2002
:IN THE COURT OF COMMON'PLEAS OF
:CUMBERLAND COUNTY, PENNSYLVANIA
v.
: CIVIL ACTION-LAW
:IN CUSTODY
MICHELLE RABENSTEIN,
Defendant
:NO. 01-6647 CNIL TERM
PRE-HEARING CUSTODY MEMORANDUM OF
DEFENDANT MICHELLE RABENSTEIN
Defendant Michelle Rabenstein, by her attorneys, the Family Law Clinic, hereby submits
the following Pre- Hearing Memorandum. This case concerns a custody dispute. The Plaintiff is
Edward L Rabenstein, II ("Father"). The Defendant is Michelle Rabenstein ("Mother"). The
parties are the natural parents of the minor child Brandon 1. Rabenstein, born August 10,1995.
Pursuant to an Order of this Court in response the Father's Petition for special relief,
Mother has had primary physical custody of Brandon since December 13, 2001. Under the Order,
father had partial physical custody of Child from Saturday, December 22,2001 until Sunday,
December 30, 2001. The parties were unable to come to an agreement at a Custody Conciliation
Conference held on January 30, 2002. On February 7, 2002, an Order was entered scheduling a
Hearing and extending Mother's right to primary physical custody of the child. Father was
granted partial physical custody of child from Saturday, February 16,2002 until Monday,
February 18,2002. Hearing is scheduled for April 3, 2002
History of the Case:
The Mother and Father were manied on July 2,1994 and separated in January of 1999.
The parties reconciled at the end of 2000 and lived together until October 2001 when they
separated. Upon separation, Mother went to stay with a friend in Middletown and Brandon
1
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stayed with his father for approximately one week. Thereafter, Father and Mother shared
physical custody of Child. During this time, Mother spoke with a friend in North Carolina
regarding Brandon's difficulties in school and behavioral problems. The friend in North
Carolina, Shannon Moore, works with children who have Attention Deficit Hyperactivity
Disorder ("ADHD") and is a Social Worker at Cabarrus Social Services in Cabarrus County,
North Carolina. Ms. Moore suggested that Mother come to North Carolina and speak with a
physician about Brandon's problems. On a weekend in October 2001, while Brandon was with
Father, Mother went to North Carolina to meet with Ms. Moore. In addition, Mother met with
three physicians at Mount Pleasant Family Physicians about Brandon's problems and visited
schools in the area.
While in North Carolina, Ms. Moore introduced Mother to Minear and Michael Brown.
The Browns have one daughter. An agreement was made, whereby, Mother agreed to care for the
Browns' daughter in exchange for having a room in the Brown's home.
Following the weekend visit to North Carolina in October, Mother returned to
Pennsylvania. While Father was on a hunting trip, Mother took Brandon to North Carolina.
Upon arrival in North Carolina, Mother telephoned Father to explain that she had moved to North
Carolina. Father did not initially oppose Mother's move to North Carolina. He subsequently
sought Special Relief on November 27,2001.
Mother enrolled Brandon in school in Cabarrus County, North Carolina on October 30,
2001. Brandon was diagnosed in mid- November with ADHD by physicians at Mount Pleasant
Family Physicians. He is currently taking Adderall and an anger management medication,
Celaxa. In addition, Brandon is seeing a psychologist once a week.
2
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Brandon is currently repeating kindergarten. His school in North Carolina provides full-
day kindergarten, whereas, his school in Pennsylvania offered only half day kindergarten.
Brandon is out of school from May 29 through August 7. In addition, there is a one- week break
for Thanksgiving, seven days off for Easter, two weeks off for Christmas, and several three and
four day weekends offthroughout the school year. Brandon's T-Ball season ends May 27.
Mother is currently employed as a cafeteria worker at Brandon's school. This enables her
to be available to take Brandon to school in the morning and pick him up at the end of the day.
Father is an Emergency Medical Technician. He works a swing shift type of schedule that
often requires sixteen (16) hour work days. In addition, he is the President of the New Kingston
Firehouse. His job, along with his duties as a volunteer firefighter, requires him to be out of the
home a substantial amount of time.
Issue Currently Before the Court:
Should Brandon be permitted to remain with his Mother in North Carolina, where he has
been living and attending school for the past five months while maintaining contact with his
Father?
Ar!!:ument:
The principles dealing with custody cases in which relocation is a factor are well
established in Pennsylvania. This Court, citing Beers v. Beers, 342 Pa. Superior Ct. 465, 493
A.2d 116, (1985), has stated that "[t]he test is what is in the best interest and welfare of the
child." Roof-Neyhart v. Roof, 43 Curnb. 502 at 508 (1994). In Gruber v. Gruber, 400 Pa.
Superior Ct. 174, 583 A.2d 434 (1990), the Superior Court of Pennsylvania stated that "the best
interests of the child are more closely allied with the interests and quality of life of the custodial
3
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parent and cannot, therefore, be determined without reference to those interests." Id. at 183. In
this case, there is no Custody Order designating a custodial parent. However, the mother has been
the child's primary care giver for the majority of the child's life. The court in Beers emphasized
that it is desirable to maintain the "continued residence of a child with a parent or custodian who
has, 'through daily affection, guidance, companionship, and discipline fulfill[ ed] the child's
psychological and physical needs. ,,, Id. at 471.
In Gruber, the court held that there are three factors to be evaluated in a case that deals
with the relocation of a child: 1) "the court must assess the potential advantages of the proposed
move and the likelihood that the move would substantially improve the quality of life for the
custodial parent and the children and is not the result of a momentary whim on the part of the
custodial parent." Id. at 184. 2) "the court must establish the integrity of the motives of both the
custodial and non-custodial parent in either seeking the move or seeking to prevent it." Id. at 185.
3) "the court must consider the availability of realistic, substitute visitation arrangements which
will adequately foster an ongoing relationship between the child and non-custodial parent." Id. at
185. These three factors have been interpreted by this court in Roof-Neyhart, to require
consideration of the following factors:
(1) the move must be likely to significantly improve the quality of life for the
parent and the child; (2) the move must not be motivated simply by a desire
to frustrate the temporary custodial rights of the non-custodial parent or to
impede the development of a healthy relationship between the child and the
non-custodial parent; and (3) there must be a feasible substitute temporary
physical custody arrangement to insure a continuing meaningful relationship
between the child and the non-custodial parent.
Id. at 509.
4
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A. Significant Improvement in Quality of Life.
In this case, Mother and Brandon have been living in North Carolina for approximately
five (5) months, and their quality of life has improved. Brandon is currently in a full- day
kindergarten. Mother will testify that Brandon is thriving in his new school. While living in
Pennsylvania, Brandon was performing poorly in school and had problems staying focused. In
fact, he was required to repeat the kindergarten. Since moving to North Carolina, Brandon's
Attention Deficit Hyperactivity Disorder has been diagnosed and he is presently under the
treatment of a physician. In addition, he sees a counselor each week. He is now performing
better in school and has developed friendships. His teacher at Weddington Hills Elementary
School in Cabarrus County, North Carolina stated, on a recent report card, that she is pleased with
Brandon's progress, and that she has seen improvement in his behavior and attitude towards
learning. He is currently a member of aT-ball team.
In addition, Mother is working in the cafeteria at Brandon's school. This allows her to be
available to care for Brandon before and after school. Also, she is at the school for a significant
portion of the school day, allowing Brandon access to her if the need arises.
B. Relocation to North Carolina Not Motivated by Desire to Frustrate Custody Rights of
Father.
Mother did not make the decision to move to North Carolina out of a desire to frustrate
the custody rights of the father. Rather, she moved out of a motivation to get medical treatment
for Brandon. Prior to moving to North Carolina, Mother was aware that her son was performing
poorly in school, was hyperactive, and had violent outbursts. Mother wished to have her son
evaluated for a possible medical explanation for his behavior, but Father objected. Father claimed
5
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his son's behavior was simply how boys behave.
Concerned about Brandon, Mother contacted Shannon Moore, a social worker in North
Carolina who told Mother that she would assist in her fmding help for Brandon. Mother, as a
result, decided to visit North Carolina. Mother met with three doctors at Mount Pleasant Family
Physicians concerning Brandon's behavior. In addition, Mother visited schools in the area to find
one suitable for Brandon. Mother then decided to move to North Carolina because she had found
people to help her with Brandon's problems.
In addition, Mother was not motivated to move in order to impede the development of a
healthy relationship between Brandon and Father. Following the move, the Mother, through her
former attorney, proposed a Stipulation For an Agreed Order of Custody pursuant to which Father
would have custody of Brandon for the entire school summer vacation except for the last two
weeks, eight consecutive days over Christmas, five consecutive days during Spring Break, and
any other time determined by mutual agreement. Mother maintains that she is still offering this
arrangement to Father with additional custody over Thanksgiving, Easter, and various three and
four day weekends coinciding with school vacation.
Mother encourages Brandon to call his father. She mails Father report cards, school
progress reports, and school projects. In addition to the two custodial periods allowed under the
Court Orders dated December 13, 2001 and February 7, 2002, Mother has arranged two additional
periods of custody for the Father. On March 14,2002, Mother and Father met in Fairville,
Virginia to exchange Brandon for the weekend. Mother is also arranging for Brandon to be in his
father's custody during Easter break, from March 28, 2002 until April 7, 2002.
6
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C. A Substitute Custody Arrangement Can be Arranged to Insure Meaningful
Relationship with Father.
As noted above, the mother is willing to work out a custody agreement with the father.
She has offered an alternate custody arrangement for Father to have periods of partial physical
custody of Brandon. Mother believes that through generous periods of partial custody, it is
feasible for Father to maintain a meaningful relationship with Brandon.
The best interests of Brandon will be served in allowing him to remain in North Carolina
with Mother. He is under the treatment of a physician and sees a counselor weekly. He is doing
well in his new school. Mother encourages contact between Brandon and his father and believes
that a substitute custody arrangement can be arranged to insure a meaningful relationship with
Father.
Witnesses to be Called at the Rearm!!: and a Summarv of their Anticipated Testimonv:
Michelle Rabenstein, Mother. Mother will testify that she moved to North Carolina to
seek medical treatment for Brandon. Brandon is being treated by a physician in North Carolina
and is currently doing well in school. She will testify that she has encouraged and initiated
contact between Brandon and his father through telephone calls and periods of partial physical
custody. She will testify that she has attempted to come to an agreement with the father regarding
custody.
Position of the Mother, Michelle Rabenstein:
Defendant Michelle Rabenstein contends that it is in Brandon's best interests to allow him
to remain in her care in North Carolina. She has been Brandon's primary care giver throughout
his life. Brandon is receiving treatment and doing well in school in North Carolina. Mother
7
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asserts that it is possible for Brandon to remain in North Carolina and continue to have a healthy
relationship with his father through telephone contact and periods of partial physical custody. For
these reasons, Mr. Rabenst"in's Petition for Special Relief should be denied, and Ms. Rabenstein
should be granted primary physical custody of Brandon.
Respectfully Submitted,
S\LLI02-
Date
~~~JtL
ROBERT E. RAINS
LUCY JOHNSTON-WALSH
Supervising Attorneys
F AMIL Y LAW CLINIC
45 North Pitt Street
Carlisle, P A 17013
717/243- 2968
Counsel for Defendant
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EDWARD L. RABENSTEIN, II,
PLAINTIFF/PETITIONER
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
MICHELLE R. RABENSTEIN,
DEFENDANT/RESPONDENT : 01-6647 CIVIL TERM
ORDER OF COURT
AND NOW, this
L..1-k-
day of December, 2001, a hearing on the
within petition for emergency relief shall be conducted in Courtroom Number 2,
Cumberland County Courthouse, Carlisle, Pennsylvania, at 9:30 a.m., Thursday,
December 13, 2001.
Edgar B. Bayley,
Douglas G. Miller, Esquire t~~oij
For Plaintiff/Petitioner - ,- ~ . X
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Family Law Clinic I.Q.-~-Ol
For Defendant/Respondent
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EDWARD L. RABENSTEIN, II,
Plaintiff/Petitioner,
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
MICHELLE R. RABENSTEIN,
Defendant/Respondent.
2001- GCQ'I'1 CIVIL TERM
IN DIVORCE / CUSTODY
PETITION FOR SPECIAL RELIEF
AND NOW, this B!J!!-day of November, 2001, comes the Petitioner, Edward L.
Rabenstein, II, by and through his attorneys, Irwin, McKnight & Hughes, Esquires, and files this
Petition for Special Relief making the following statements:
1. The Petitioner is Edward L. Rabenstein, II, an adult individual residing at 20
Regency Woods South, Carlisle, Cumberland County, Pennsylvania 17013.
2. The Respondent is Michelle R. Rabenstein, an adult individual currently residing
at 46 McDonald Street NW, Concord, North Carolina 28027.
3. The Petitioner and the Respondent were married on July 2, 1994 in Silver Spring
,,'
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Township, Mechanicsburg, Pennsylvania, and Petitioner has filed a divorce and custody action
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contemporaneous with and under the same docket number as this action with the Court of
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Common Pleas of Curnberland County, Pennsylvania.
4. The parties are the natural parents of one minor child, namely, Brandon J.
Rabenstein, born August 10, 1995, age 6 years.
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5. Upon information and belief, the parties' minor child is presently in the custody
of Respondent in North Carolina.
6. Prior to October 29, 2001, the parties' minor child resided with Petitioner at his
home located at 20 Regency Woods South, Carlisle, Cumberland County, Pennsylvania 17013,
even during Respondent's separation from Petitioner during October 2001.
7. On or about October 26, 2001, Respondent informed Petitioner that she desired to
reconcile their differences and moved back into the residence with Petitioner and their minor
child.
8, On October 29, 2001, Petitioner returned home and discovered that Respondent
had removed her belongings and the belongings of their minor child from the residence.
9, Respondent had not informed Petitioner that she was moving, nor that she was
taking the parties minor child, nor the location to which she was intending to relocate.
10. It was only until several days later that Respondent contacted Petitioner by
telephone and informed him that she and their minor child were living in North Carolina.
11. Prior to Respondent's unannounced removal of the child to North Carolina on
October 29, 2001, the child attended Silver Spring Elementary School in Cumberland County,
Pennsylvania,
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12. Most of the child's extended family also reside in Pennsylvania, and to the best of
Petitioner's information and belief, no member of the extended family resides in North Carolina.
13. The child's friends and playmates also reside in Curnberland County,
Pennsylvania.
14. Since the child's birth, he has resided primarily with Petitioner and has a close
and loving bond with Petitioner.
15. Respondent, by her actions, has prevented any contact by Petitioner with the child
except by telephone since October 29,2001.
16. Petitioner desires primary physical custody and sole legal custody of the parties'
minor child.
17. The removal of the child by Respondent to North Carolina is not in the best
interest or welfare of the parties' minor child.
18. Respondent's removal of the minor child to North Carolina has severely disrupted
the day-to-day life of the child, and had irreparably harmed Petitioner.
19. Petitioner has no information of a custody proceeding concerning the child
pending in a court of this Commonwealth or any other location.
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20. Petitioner does not know of a person not a party to the proceedings who has
physical custody of the child and claims to have cnstody or visitation rights with respect to the
child.
21. The best interests and permanent welfare of the child require that the Court grant
the Petitioner's requests as set forth above.
WHEREFORE, the Petitioner, Edward L. Rabenstein, IT, respectfully requests that this
Honorable Court enter an Order of Court directing Respondent to return the parties' minor child,
Brandon J. Rabenstein, to the Commonwealth of Pennsylvania and further granting Petitioner
primary physical custody and sole legal custody of the parties' minor child pending a custody
conciliation between the parties.
Respectfully submitted,
IRWIN, McKNIGHT & HUGHES
By:
Douglas
Supreme ourt J.D. No. 83776
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, Pennsylvania 17013-3222
(717) 249-2353
Attorney for PlaintifflPetitioner,
Edward L. Rabenstein, II
Date: November 27,2001
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VERIFICATION
The foregoing document is based upon information which has been gathered by my
counsel and myself in the preparation of this action. I have read the statements made in this
document and they are true and correct to the best of my knowledge, information and belief. I
understand that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section
4904, relating to unsworn falsification to authorities.
t~~
EDWARD L. RABENSTEIN, II
Date:
November 26 ,2001
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CERTIFICATE OF SERVICE
I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy
of the foregoing document upon the persons indicated below by Certified Mail, Restricted
Delivery, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below:
Michelle R. Rabenstein
46 McDonald Street NW
Concord,NC 28027
IRWIN, McKNIGHT & HUGHES
By:
Douglas Miller, Esquire
Supreme ourt I.D. No. 83776
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, Pennsylvania 17013-3222
(717) 249-2353
Attorney for Plaintifti'Petitioner,
Edward 1. Rabenstein, II
Date: November 27, 2001
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EDWARD L. RABENSTEIN. II. * IN THE COURT OF COMMON PLEAS
Plaintiff * CUMBERLAND COUNTY.
* PENNSYLVANIA
*
V5. * NO. 2001-6647
*
MICHELLE R. RABENSTEIN. * CIVIL ACTION - LAW
Defendant * IN DIVORCE
ORDER
AND NOW. this
day of
, 2001, upon
consideration of the within Answer to Plaintiff's Petition for Special Relief, it is
ORDERED that Plaintiff's Petition is DENIED pending a Custody Conciliation
Conference between the parties.
BY THE COURT:
J.
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EDWARD L. RABENSTEIN, II,
Plaintiff
* IN THE COURT OF COMMON PLEAS
* CUMBERLAND COUNTY,
* PENNSYLVANIA
*
V5.
* NO. 2001-6647
*
MICHELLE R. RABENSTEIN,
Defendant
* CIVIL ACTION - LAW
* IN DIVORCE
DEFENDANT'S RESPONSE TO PLAINTIFF'S PETITION FOR SPECIAL ~L1Ef. 'i'
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AND NOW, this 12th day of December, 2001, Defendant/~~pon~nt,
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Michelle R. Rabenstein, by and through her attorneys, Edward J. Weigj:€:a.ub .<Ind ."
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Associates, files this Answer to Plaintiff's Petition for Special Relief and iWer:f'as <.C
follows:
1. Admitted upon information and belief.
2. Admitted.
3. Admitted in part and denied in part. It is admitted that Petitioner
and Respondent were married July 2, 1994 in Silver Spring Township, Mechanicsburg,
Pennsylvania. After reasonable investigation, Respondent is without information
sufficient to form a belief as to the truth of the remaining averments of paragraph
three (3) and the averments are therefore denied.
4. Admitted.
5. Admitted.
6. Denied. It is denied that prior to October 29, 2001, the parties'
minor child resided with Petitioner at his home located at 20 Regency Woods South,
Carlisle, Cumberland County, Pennsylvania, and strict proof thereof is demanded at the
time of trial. By way of further response, the minor child lived exclusively with
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Respondent at her home on 3 West Main Street, New Kingston, Pennsylvania, from
1999 through February of 2001. Petitioner, Respondent and their minor child lived
together from February of 2001 through October of 2001 at the 20 Regency Woods
South, Carlisle, Pennsylvania address. It is denied that the parties' minor child resided
with Petitioner during Respondent's separation from Petitioner during October 2001,
and strict proof thereof is demanded at the time of trial.
7. Denied. It is denied that on or about October 26, 2001
Respondent informed Petitioner that she desired to reconcile their differences and that
Respondent moved back into the residence with Petitioner and minor child, and strict
proof thereof is demanded at the trial.
8. Denied. It is denied that on October 29, 2001 Respondent had
moved her belongings and the belongings of the minor child from the residence. By
way of further response, Petitioner and Respondent moved from the 20 Regency
Woods South address on or about October 5, 2001. After reasonable investigation,
Respondent is without sufficient information to form a belief as to the truth of the
remaining averments and the averments are therefore denied.
9. Denied. It is denied that Respondent had not informed Petitioner
that she was moving or that she was taking the parties' minor child with her. It is
further denied that Petitioner was not aware of a location to which Respondent was
moving with the parties' minor child, and strict proof thereof is demanded at the time
trial.
10. Denied. It is denied that only until several days later Respondent
contacted Petitioner by telephone and informed him that she and their minor child were
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living in North Carolina. By way of further response, Respondent attempted several
times to contact Petitioner when she and the parties' minor child had arrived in North
Carolina, however, Petitioner's phone was disconnected. It is believed that Petitioner's
phone has now been reconnected, but that Petitioner does not have any long-distance
service. Moreover, Petitioner only calls Respondent and the parties' child once every
two (2) weeks.
11 . Admitted in part and denied in part. It is admitted that the parties' minor
child attended Silver Spring Elementary School in Cumberland County Pennsylvania.
It is admitted that Respondent's relocation to North Carolina occurred on October 29,
2001, however, it is denied that Respondent's relocation was unannounced.
12. Admitted.
13. Admitted in part and denied in part. It is admitted that the minor child did
have some friends and playmates also that resided in Cumberland County
Pennsylvania, however, it is denied that these are the only friends and playmates of
the minor child. By way of further response, the minor child has developed several
friendships with children his own age in his school in North Carolina.
14. Denied. It is denied that since the child's birth he has resided primarily
with Petitioner. By way of further response, see Respondent's answer to paragraph
six (6) above.
15. Denied. It is denied that Respondent prevented any contact by Petitioner
with the child except of telephone since October 29, 2001. By way of further
response, Respondent made attempts on several occasions to arrange for Petitioner
to see the child, including over the Thanksgiving holiday. Respondent offered to meet
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Petitioner at a half-way point between Pennsylvania and North Carolina, to exchange
custody of the minor child, but Petitioner refused to meet Respondent.
16. Admitted upon information and belief.
17. Denied. The averments of paragraph seventeen (17) require a legal
conclusion to which no response is required and the averments are therefore denied.
18. Denied. It is denied that the child's relocation to North Carolina has
severely disrupted the day-to-day life of the minor child. By way of further response,
since the child has moved to North Carolina, the child has been enrolled in school
there, and has been doing exceedingly well. In addition, Respondent has taken steps
to see that the minor child has been treated for his diagnosed AD/HD, which includes
the administration of medication, and regular therapy sessions with a counselor.
Petitioner refused to allow such therapy sessions or medication while the parties
resided together from February 2001 through October 2001.
19. Admitted.
20. Admitted.
21 . Denied. The averments of paragraph twenty-one (21) require a legal
conclusion to which no response is required and the averments are therefore denied.
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WHEREFORE, Respondent, Michelle R. Rabenstein respectfully requests
that this Honorable Court Deny Petitioner's Request for Special Relief pending a
Custody Conciliation between the parties.
I ,';:
Date: II II I) I
Resp.e..9-fl:.III-Y7Su~mil1.. 'ed, ) I
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By: '.,/ I Lv J j
Jennifer fl. 'Frechette, Esquire
2650 North Third Street
Harrisburg, PA 17110
Attorney Id. #87445
(717) 238-2200
A HORNEY FOR DEFENDANT
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VERIFICATION
I, Michelle R. Rabenstein, hereby swear and affirm that the facts
contained in the foregoing Answer to Plaintiff's Petition for Special Relief are true
and correct and are made subject to the penalties of 18 Pa. C.S. Sec. 4904 relating
to unsworn falsification to authorities.
Date: 11 - (; - () L
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EDWARD L. RABENSTEIN, II, * IN THE COURT OF COMMON PLEAS
Plaintiff * CUMBERLAND COUNTY,
* PENNSYLVANIA
*
vs. * NO. 2001-6647
*
MICHELLE R. RABENSTEIN, * CIVIL ACTION - LAW
Defendant * IN DIVORCE
PRAECIPE TO ENTER APPEARANCE
TO THE PROTHONOTARY:
Kindly enter the appearance of Jennifer L. Frechette, Esquire, on behalf of Defendant.
D","~61_
Je i er . Frechette, Esquire
265 orth Third Street
Harnsburg, P A 17110
(717) 238-2200
ID #87445
ATTORNEY FOR DEFENDANT
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EDWARD l. RABENSTEIN, II, * IN THE COURT OF COMMON PLEAS
Plaintiff * CUMBERLAND COUNTY,
* PENNSYLVANIA
*
vs. * NO. 2001-6647
*
MICHELLE R. RABENSTEIN, * CIVIL ACTION - LAW
Defendant * IN DIVORCE
ORDER
AND NOW, this
day of
, 2001, upon
consideration of the within Answer to Plaintiff's Petition for Special Relief, it is
ORDERED that Plaintiff's Petition is DENIED pending a Custody Conciliation
Conference between the parties.
BY THE COURT:
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EDWARD L. RABENSTEIN, II,
Plaintiff
" IN THE COURT OF COMMON PLEAS
" CUMBERLAND COUNTY,
" PENNSYLVANIA
"
vs.
" NO. 2001-6647
"
MICHELLE R. RABENSTEIN,
Defendant
" CIVIL ACTION - LAW
" IN DIVORCE
DEFENDANT'S RESPONSE TO PLAINTIFF'S PETITION FOR SPECIAL RELIEF
AND NOW, this 12th day of December, 2001, Defendant/Respondent,
Michelle R. Rabenstein, by and through her attorneys, Edward J. Weintraub and
Associates, files this Answer to Plaintiff's Petition for Special Relief and avers as
follows:
1 . Admitted upon information and belief.
2. Admitted.
3. Admitted in part and denied in part. It is admitted that Petitioner
and Respondent were married July 2, 1994 in Silver Spring Township, Mechanicsburg,
Pennsylvania. After reasonable investigation, Respondent is without information
sufficient to form a belief as to the truth of the remaining averments of paragraph
three (3) and the averments are therefore denied.
4. Admitted.
5. Admitted.
6. Denied. It is denied that prior to October 29, 2001, the parties'
minor child resided with Petitioner at his home located at 20 Regency Woods South,
Carlisle, Cumberland County, Pennsylvania, and strict proof thereof is demanded at the
time of trial. By way of further response, the minor child lived exclusively with
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Respondent at her home on 3 West Main Street, New Kingston, Pennsylvania, from
1999 through February of 2001. Petitioner, Respondent and their minor child lived
together from February of 2001 through October of 2001 at the 20 Regency Woods
South, Carlisle, Pennsylvania address. It is denied that the parties' minor child resided
with Petitioner during Respondent's separation from Petitioner during October 2001,
and strict proof thereof is demanded at the time of trial.
7. Denied. It is denied that on or about October 26, 2001
Respondent informed Petitioner that she desired to reconcile their differences and that
Respondent moved back into the residence with Petitioner and minor child, and strict
proof thereof is demanded at the trial.
8. Denied. It is denied that on October 29, 2001 Respondent had
moved her belongings and the belongings of the minor child from the residence. By
way of further response, Petitioner and Respondent moved from the 20 Regency
Woods South address on or about October 5, 2001. After reasonable investigation,
Respondent is without sufficient information to form a belief as to the truth of the
remaining averments and the averments are therefore denied.
9. Denied. It is denied that Respondent had not informed Petitioner
that she was moving or that she was taking the parties' minor child with her. It is
further denied that Petitioner was not aware of a location to which Respondent was
moving with the parties' minor child, and strict proof thereof is demanded at the time
trial.
10. Denied. It is denied that only until several days later Respondent
contacted Petitioner by telephone and informed him that she and their minor child were
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living in North Carolina. By way of further response, Respondent attempted several
times to contact Petitioner when she and the parties' minor child had arrived in North
Carolina, however, Petitioner's phone was disconnected. It is believed that Petitioner's
phone has now been reconnected, but that Petitioner does not have any long-distance
service. Moreover, Petitioner only calls Respondent and the parties' child once every
two (2) weeks.
11. Admitted in part and denied in part. It is admitted that the parties' minor
child attended Silver Spring Elementary School in Cumberland County Pennsylvania.
It is admitted that Respondent's relocation to North Carolina occurred on October 29,
2001, however, it is denied that Respondent's relocation was unannounced.
12. Admitted.
13. Admitted in part and denied in part. It is admitted that the minor child did
have some friends and playmates also that resided in Cumberland County
Pennsylvania, however, it is denied that these are the only friends and playmates of
the minor child. By way of further response, the minor child has developed several
friendships with children his own age in his school in North Carolina.
14. Denied. It is denied that since the child's birth he has resided primarily
with Petitioner. By way of further response, see Respondent's answer to paragraph
six (6) above.
15. Denied. It is denied that Respondent prevented any contact by Petitioner
with the child except of telephone since October 29, 2001. By way of further
response, Respondent made attempts on several occasions to arrange for Petitioner
to see the child, including over the Thanksgiving holiday. Respondent offered to meet
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custody of the minor child, but Petitioner refused to meet Respondent.
16. Admitted upon information and belief.
17. Denied. The averments of paragraph seventeen (17) require a legal
conclusion to which no response is required and the averments are therefore denied.
18. Denied. It is denied that the child's relocation to North Carolina has
severely disrupted the day-to-day life of the minor child. By way of further response,
since the child has moved to North Carolina, the child has been enrolled in school
there, and has been doing exceedingly well. In addition, Respondent has taken steps
to see that the minor child has been treated for his diagnosed AD/HD, which includes
the administration of medication, and regular therapy sessions with a counselor.
Petitioner refused to allow such therapy sessions or medication while the parties
resided together from February 2001 through October 2001.
19. Admitted.
20. Admitted.
21. Denied. The averments of paragraph twenty-one (21) require a legal
conclusion to which no response is required and the averments are therefore denied.
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WHEREFORE, Respondent, Michelle R. Rabenstein respectfully requests
that this Honorable Court Deny Petitioner's Request for Special Relief pending a
Custody Conciliation between the parties.
Dol' ~]
Respec
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By:
Jennifer . Frechette, Esquire
2650 North Third Street
Harrisburg, PA 17110
Attorney Id. #87445
(717) 238-2200
ATTORNEY FOR DEFENDANT
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VERIFICA liON
I, Michelle R. Rabenstein, hereby swear and affirm that the facts
contained in the foregoing Answer to Plaintiff's Petition for Special Relief are true
and correct and are made subject to the penalties of 18 Pa. C.S. Sec. 4904 relating
to unsworn falsification to authorities.
Date: /1 - J:2 - () I_
I .
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ichelle R. Rabenstein, Defendant
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EDWARD L. RABENSTEIN, II,:
Plaintiff/Petitioner
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
CIVIL ACTION - LAW
MICHELLE R. RABENSTEIN,
Defendant/Respondent
NO. 01-6647 CIVIL TERM
ORDER OF COURT
AND NOW, this 13th day of December, 2001, this matter
having come before the court on a petition by Edward L.
Rabenstein, II, father, for special relief, and the mother,
Michelle R. Rabenstein, having appeared, IT IS ORDERED:
1. Temporary physical custody of Brandon J.
Rabenstein, born August 10, 1995, shall be with the mother
pending a further order following a conciliation conference.
2. The mother shall be responsible to have Brandon
delivered to his father on Saturday, December 22, 2001, and for
Brandon's return to North Carolina on Sunday, December 30,
2001.
3. If the parties are unable to reach an agreement
at the conciliation conference now scheduled for January 8,
2002, the conciliator is to expedite a further temporary order
for this Judge to sign, and this Judge will expedite a hearing
on the merits.
Douglas G. Miller, Esquire
For Plaintiff/Petitioner
Jennifer L. Frechette, Esquire
For Defendant/Respondent
Sheriff
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EDWARDL. RABENSTEIN, II,
Plaintiff,
* IN THE COURT OF COMMON PLEAS
* CUMBERLAND COUNTY, P A
*
vs.
* NO. 01-6647
*
MICHELLE R. RABENSTEIN,
Defendant
* CIVILACTION-LAW
* IN DIVORCE & CUSTODY
RULE
AND NOW, this L day of G""'~ 2002, a rule is hereby issued to show
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cause why the within request should not be granted.
RULE RETURNABLE IN ~ DAYS~/1aAJ(c.Jt .
BY THE COURT:
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EDWARD 1. RABENSTEIN, II, * IN THE COURT OF COMMON PLEAS
Plaintiff, * CUMBERLAND COUNTY, PA
*
VS. * NO. 01-6647
*
MICHELLE R. RABENSTEIN, * CIVIL ACTION - LAW
Defendant * IN DIVORCE & CUSTODY
PETITION TO WITHDRAW APPEARANCE
Jennifer L. Frechette, Esquire hereby respectfully petitions this Honorable Court for
Leave to Withdraw her appearance as counsel for Defendant, Michelle R. Rabenstein, and
in support thereof, avers as follows:
1. Petitioner is Jennifer L. Frechette, Esquire.
2. Respondent is Michelle R. Rabenstein, Defendant.
3. Petitioner was retained by Respondent on or about December 5, 2001, to
represent her in a custody and divorce matter.
4. Petitioner has undertaken such representation but is unable to continue for
the following reasons:
a. There has been a serious failure of communication between Petitioner and
Respondent.
b. Petitioner is unable to effectively represent a client who fails to communicate
with her.
c. Respondent by her conduct has rendered it unreasonably difficult for
Petitioner to carry out her employment effectively by failing to communicate with her.
Withdrawal is allowed under Rule 1.16(b)(5) of the Rules of Professional Conduct.
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Respondent has disregarded an agreement with Petitioner as to fees and costs
and withdrawal is allowed pursuant to Rule 1.16(b)(4) of the Rilles of Professional
Conduct.
5. Petitioner has communicated numerous times by telephone and a letter to
Respondent that she intends to withdraw as counsel for Respondent. A true and correct
copy of said letter is attached hereto as Exhibit U A"
WHEREFORE, Petitioner respectfully requests leave to withdraw her
appearance as attorney for Respondent.
Respectfully submitted:
WEINTRAUB & ASSOCIATES
Date: ~\ S) D L--
BY:
Je . er L. Frechette, Esquire/Petitioner
2650 N. Third Street
Harrisburg, PA 17110
(717) 238-2200
IDNo.87445
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LAW OFFICES OF
EDWARDJ. WEINTRAUB & ASSOCIATES
PRACTICE LIMITED TO F AMIL Y LAW
26501<. THIRD'STREET
HARRISBURG, PENNSYLVANIA 17110
(717) 238-2200 FAX - (717) 238-9280 E-MAIL - EWDIVORCE@AOL.cOM
(C\Q)[PY
Edward J. Weintraub
Heather L. Harbaugh
Jennifer L. Frechette'
, also admitted V A Bar
LeQal Assistants
Wendy L. Shive
Misty D. Lehman
February 5,2002
Michelle Rabenstein
46 McDonald Street NW
Concord, NC 28027
Re: Withdrawal of Appearance
Dear Michelle:
This letter is to inform you that I will be filing it Petition to Withdraw
Appearance in order to terminate our attorney-client relationship. The reason for this
is the fact that you have not paid legal fees which total (to date) over $2,000_ I
informed you numerous times that you must pay your bill according to the terms you
agreed to when you signed the retainer agreement.
Furthermore, you have made my representation unduly burdensome and
unreasonably difficult by failing to provide information I repeatedly requested.
Enclosed is your mail that Mr. Rabenstein asked me to deliver to you. You will
receive my Petition to Withdraw Appearance shortly.
Sincerely,
WEINTRAUB &ASSOClATES
/l:h (}t~
~gJer ~rechette, Esquire
Enclosures
EXHIBIT "A"
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EDWARD L. RABENSTEIN, II, . IN THE COURT OF COMMON PLEAS
Plaintiff . CUMBERLAND COUNTY,
. PENNSYLVANIA
.
V5. . NO. 2001-6647
.
MICHELLE R. RABENSTEIN, . CIVIL ACTION - LAW
Defendant . IN DIVORCE/CUSTODY
CERTIFICATE OF SERVICE
I, Wendy L. Shive, Legal Assistant to Jennifer L. Frechette, Esquire, hereby certify that on
February 7, 2002, I served a true and correct copy of the Petition to Withdraw as Counsel and Rule
to Show Cause upon Michelle R. Rabenstein, Defendant, by depositing same, postage pre-paid, via
regular main and Certified Mail, Return Receipt Requested in the Uuited States Mail, Harrisburg,
Pennsylvania, addressed as follows:
Michelle Rabenstein
46 McDonald Street NW
Concord, NC 28027
Date: //7/0 L
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EDWARD L. RABENSTEIN ,II,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION-LAW
IN CUSTODY
MICHELLE R. RABENSTEIN,
Defendant
NO. 01- 6647 CIVIL TERM
PRAECIPE TO WITHDRAW APPEARANCE
.ch
AND NOW, this ~ day of March 2002, Jennifer Frechette, Esquire withdraws her
appearance on behalf of the Defendant, Michelle R. Rabenstein.
March to , 2002
Jen fi Free ette, Esquire
Edward Weintraub & Associates
2650 North 3'd Street
Harrisburg, PA 17110
717/238-2200
PRAECIPE TO ENTER APPEARANCE
.m
AND NOW, this 8 day of March, 2002, the Family Law Clinic, hereby enters its
appearance on behalf of the Defendant, Michelle R. Rabenstein.
March a ,2002
rP ~-W~
ROB~ INS
THOMAS M. PLACE
TERI L. HENNING
Supervising Attorneys
FAMILY LAW CLINIC
45 North Pitt Street
Carlisle, PA 17013
717/243-2968
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RECEIVED MAR - 7 2002
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EDWARD L. RABENSTEIN, II,
Plaintiff
:IN THE COURT OF COMMON PLEAS OF
:CUMBERLAND COUNTY, PENNSYLVANIA
v.
:CNILACTION-LAW
:IN CUSTODY
MICHELLE RABENSTEIN,
Defendant
:NO. 01-6647 CNIL TERM
CERTIFICATE OF SERVICE
I, Carol Verish, hereby certify that I am serving a true and correct copy of
Defendant's Pre-Hearing Custody Memorandurn of Defendant Michelle Rabenstein on the
following person, counsel for Plaintiff, by depositing a copy of the same in the United States
mail, postage prepaid, this 22nd day of March 2002:
Douglas Miller, Esquire
Irwin, McKnight & Hughes
60 West Pomfret Street
Carlisle, PA 17013-3222
UUI
Carol Verish
ertified Legal Intern
FAMILY LAW CLINIC
45 North Pitt Street
Carlisle, PA 17013
717-243-2968
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EDWARD L RABENSTEIN, II,
Plaintiff
MA~ 2002
:IN THE COURT OF COMMON PLEAS OF
:CUMBERLAND COUNTY, PENNSYL VANIA
.j
v.
:CNILACTION-LAW
:IN CUSTODY
MICHELLE RABENSTEIN,
Defendant
NO. 01-6647 CNIL TERM
PRE-HEARING CUSTODY MEMORANDUM OF
DEFENDANT MICHELLE RABENSTEIN
Defendant Michelle Rabenstein, by her attorneys, the Family Law Clinic, hereby submits
the following Pre- Hearing Memorandurn. This case concerns a custody dispute. The Plaintiff is
Edward L Rabenstein, II ("Father"). The Defendant is Michelle Rabenstein ("Mother"). The
parties are the natural parents ofthe minor child Brandon 1. Rabenstein, born August 10, 1995.
Pursuant to an Order of this Court in response the Father's Petition for special relief,
Mother has had primary physical custody of Brandon since December 13, 2001. Under the Order,
father had partial physical custody of Child from Saturday, December 22, 2001 until Sunday,
December 30, 2001. The parties were unable to come to an agreement at a Custody Conciliation
Conference held on January 30, 2002. On February 7, 2002, an Order was entered scheduling a
Hearing and extending Mother's right to primary physical custody of the child. Father was
granted partial physical custody of child from Saturday, February 16,2002 until Monday,
February 18,2002. Hearing is scheduled for April 3, 2002
Historv of t1te Case:
The Mother and Father were married on July 2, 1994 and separated in January of 1999.
The parties reconciled at the end of 2000 and lived together until October 2001 when they
separated. Upon separation, Mother went to stay with a friend in Middletown and Brandon
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stayed with his father for approximately one week. Thereafter, Father and Mother shared
physical custody of Child. During this time, Mother spoke with a friend in North Carolina
regarding Brandon's difficulties in school and behavioral problems. The friend in North
Carolina, Shannon Moore, works with children who have Attention Deficit Hyperactivity
Disorder ("ADHD") and is a Social Worker at Cabarrus Social Services in Cabarrus County,
North Carolina. Ms. Moore suggested that Mother come to North Carolina and speak with a
physician about Brandon's problems. On a weekend in October 2001, while Brandon was with
Father, Mother went to North Carolina to meet with Ms. Moore. In addition, Mother met with
three physicians at Mount Pleasant Family Physicians about Brandon's problems and visited
schools in the area.
While in North Carolina, Ms. Moore introduced Mother to Minear and Michael Brown.
The Browns have one daughter. An agreement was made, whereby, Mother agreed to care for the
Browns' daughter in exchange for having a room in the Brown's home.
Following the weekend visit to North Carolina in October, Mother returned to
Pennsylvania. While Father was on a hunting trip, Mother took Brandon to North Carolina.
Upon arrival in North Carolina, Mother telephoned Father to explain that she had moved to North
Carolina. Father did not initially oppose Mother's move to North Carolina. He subsequently
sought Special Relief on November 27,2001.
Mother enrolled Brandon in school in Cabarrus County, North Carolina on October 30,
2001. Brandon was diagnosed in mid- November with ADHD by physicians at Mount Pleasant
Family Physicians. He is currently taking Adderall and an anger management medication,
Celaxa. In addition, Brandon is seeing a psychologist once a week.
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Brandon is currently repeating kindergarten. His school in North Carolina provides full-
day kindergarten, whereas, his school in Pennsylvania offered only half day kindergarten.
Brandon is out of school from May 29 through August 7. In addition, there is a one- week break
for Thanksgiving, seven days off for Easter, two weeks off for Christmas, and several three and
four day weekends off throughout the school year. Brandon's T-Ball season ends May 27.
Mother is currently employed as a cafeteria worker at Brandon's school. This enables her
to be available to take Brandon to school in the morning and pick him up at the end of the day.
Father is an Emergency Medical Technician. He works a swing shift type of schedule that
often requires sixteen (16) hour work days. In addition, he is the President of the New Kingston
Firehouse. His job, along with his duties as a volunteer firefighter, requires him to be out of the
home a substantial amount of time.
Issue Currendv Before the Court:
Should Brandon be permitted to remain with his Mother in North Carolina, where he has
been living and attending school for the past five months while maintaining contact with his
Father?
Ar!!:ument:
The principles dealing with custody cases in which relocation is a factor are well
established in Pennsylvania. This Court, citing Beers v. Beers, 342 Pa. Superior Ct. 465, 493
A.2d 116, (1985), has stated that "[t]he test is what is in the best interest and welfare of the
child." Roof-Neyhart v. Roof, 43 Curnb. 502 at 508 (1994). In Gruber v. Gruber, 400 Pa.
Superior Ct. 174, 583 A.2d 434 (1990), the Superior Court of Pennsylvania stated that "the best
interests of the child are more closely allied with the interests and quality oflife ofthe custodial
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parent and cannot, therefore, be determined without reference to those interests." Id. at 183. In
this case, there is no Custody Order designating a custodial parent. However, the mother has been
the child's primary care giver for the majority of the child's life. The court in Beers emphasized
that it is desirable to maintain the "continued residence of a child with a parent or custodian who
has, 'through daily affection, guidance, companionship, and discipline fulfill[ ed] the child's
psychological and physical needs. '" Id. at 471.
In Gruber, the court held that there are three factors to be evaluated in a case that deals
with the relocation of a child: 1) "the court must assess the potential advantages of the proposed
move and the likelihood that the move would substantially improve the quality of life for the
custodial parent and the children and is not the result of a momentary whim on the part of the
custodial parent." Id. at 184. 2) "the court must establish the integrity of the motives of both the
custodial and non-custodial parent in either seeking the move or seeking to prevent it." Id. at 185.
3) "the court must consider the availability of realistic, substitute visitation arrangements which
will adequately foster an ongoing relationship between the child and non-custodial parent." Id. at
185. These three factors have been interpreted by this court in Roof-Neyhart, to require
consideration of the following factors:
(1) the move must be likely to significantly improve the quality oflife for the
parent and the child; (2) the move must not be motivated simply by a desire
to frustrate the temporary custodial rights of the non-custodial parent or to
impede the development of a healthy relationship between the child and the
non-custodial parent; and (3) there must be a feasible substitute temporary
physical custody arrangement to insure a continuing meaningful relationship
between the child and the non-custodial parent.
Id. at 509.
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A. Significant Improvement in Quality of Life.
In this case, Mother and Brandon have been living in North Carolina for approximately
five (5) months, and their quality oflife has improved. Brandon is currently in a full- day
kindergarten. Mother will testify that Brandon is thriving in his new school. While living in
Pennsylvania, Brandon was performing poorly in school and had problems staying focused. In
fact, he was required to repeat the kindergarten. Since moving to North Carolina, Brandon's
Attention Deficit Hyperactivity Disorder has been diagnosed and he is presently under the
treatment of a physician. In addition, he sees a counselor each week. He is now performing
better in school and has developed friendships. His teacher at Weddington Hills Elementary
School in Cabarrus County, North Carolina stated, on a recent report card, that she is pleased with
Brandon's progress, and that she has seen improvement in his behavior and attitude towards
learning. He is currently a member of aT-ball team.
In addition, Mother is working in the cafeteria at Brandon's school. This allows her to be
available to care for Brandon before and after school. Also, she is at the school for a significant
portion of the school day, allowing Brandon access to her if the need arises.
B. Relocation to North Carolina Not Motivated by Desire to Frustrate Custody Rights of
Father.
,'i
Mother did not make the decision to move to North Carolina out of a desire to frustrate
the custody rights of the father. Rather, she moved out of a motivation to get medical treatment
for Brandon. Prior to moving to North Carolina, Mother was aware that her son was performing
poorly in school, was hyperactive, and had violent outbursts. Mother wished to have her son
evaluated for a possible medical explanation for his behavior, but Father objected. Father claimed
5
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his son's behavior was simply how boys behave.
Concerned about Brandon, Mother contacted Shannon Moore, a social worker in North
Carolina who told Mother that she would assist in her fmding help for Brandon. Mother, as a
result, decided to visit North Carolina. Mother met with three doctors at Mount Pleasant Family
Physicians concerning Brandon's behavior. In addition, Mother visited schools in the area to find
one suitable for Brandon. Mother then decided to move to North Carolina because she had found
people to help her with Brandon's problems.
In addition, Mother was not motivated to move in order to impede the development of a
healthy relationship between Brandon and Father. Following the move, the Mother, through her
former attorney, proposed a Stipulation For an Agreed Order of Custody pursuant to which Father
would have custody of Brandon for the entire school summer vacation except for the last two
weeks, eight consecutive days over Christmas, five consecutive days during Spring Break, and
any other time determined by mutual agreement. Mother maintains that she is still offering this
arrangement to Father with additional custody over Thanksgiving, Easter, and various three and
four day weekends coinciding with school vacation.
Mother encourages Brandon to call his father. She mails Father report cards, school
progress reports, and school projects. In addition to the two custodial periods allowed under the
Court Orders dated December 13, 2001 and February 7, 2002, Mother has arranged two additional
periods of custody for the Father. On March 14,2002, Mother and Father met in Fairville,
Virginia to exchange Brandon for the weekend. Mother is also arranging for Brandon to be in his
father's custody during Easter break, from March 28, 2002 until April 7, 2002.
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C. A Substitute Custody Arrangement Can be Arranged to Insure Meaningful
Relationship with Father.
As noted above, the mother is willing to work out a custody agreement with the father.
She has offered an alternate custody arrangement for Father to have periods of partial physical
custody of Brandon. Mother believes that through generous periods of partial custody, it is
feasible for Father to maintain a meaningful relationship with Brandon.
The best interests of Brandon will be served in allowing him to remain in North Carolina
with Mother. He is under the treatment of a physician and sees a counselor weekly. He is doing
well in his new school. Mother encourages contact between Brandon and his father and believes
that a substitute custody arrangement can be arranged to insure a meaningful relationship with
Father.
Witnesses to be Called at the Rearin!!: and a Summary of their Anticiuated Testimonv:
Michelle Rabenstein, Mother. Mother will testify that she moved to North Carolina to
seek medical treatment for Brandon. Brandon is being treated by a physician in North Carolina
and is currently doing well in school. She will testify that she has encouraged and initiated
contact between Brandon and his father through telephone calls and periods of partial physical
custody. She will testify that she has attempted to come to an agreement with the father regarding
custody.
Position of the Mother, Michelle Rabenstein:
Defendant Michelle Rabenstein contends that it is in Brandon's best interests to allow him
to remain in her care in North Carolina. She has been Brandon's primary care giver throughout
his life. Brandon is receiving treatment and doing well in school in North Carolina. Mother
7
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asserts that it is possible for Brandon to remain in North Carolina and continue to have a healthy
relationship with his father through telephone contact and periods of partial physical custody. For
these reasons, Mr. Rabenstt;in's Petition for Special Relief should be denied, and Ms. Rabenstein
should be granted primary physical custody of Brandon.
Respectfully Submitted,
S\L"LJ02-
Date
~v\1-( )p/fL
Caro Verish
~~rtJ&:L
THO . PLACE
ROBERT E. RAINS
LUCY JOHNSTON-WALSH
Supervising Attorneys
FAMILY LAW CLINIC
45 North Pitt Street
Carlisle, PA 17013
717/243- 2968
Counsel for Defendant
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MAR {rll!'?On?
EDWARD 1. RABENSTEIN, II,
Plaintiff
:IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: CIVIL ACTION-LAW
:IN CUSTODY
MICHELLE RABENSTEIN,
Defendant
:NO. 01-6647 CIVIL TERM
PRE-HEARING CUSTODY MEMORANDUM OF
DEFENDANT MICHELLE RABENSTEIN
Defendant Michelle Rabenstein, by her attorneys, the Family Law Clinic, hereby submits
the following Pre- Hearing Memorandurn. This case concerns a custody dispute. The Plaintiff is
Edward 1. Rabenstein, II ("Father"). The Defendant is Michelle Rabenstein ("Mother"). The
parties are the natural parents of the minor child Brandon J. Rabenstein, born August 10, 1995.
Pursuant to an Order of this Court in response the Father's Petition for special relief,
Mother has had primary physical custody of Brandon since December 13, 2001. Under the Order,
father had partial physical custody of Child from Saturday, December 22,2001 until Sunday,
December 30, 2001. The parties were unable to come to an agreement at a Custody Conciliation
Conference held on January 30, 2002. On February 7, 2002, an Order was entered scheduling a
Hearing and extending Mother's right to primary physical custody of the child. Father was
granted partial physical custody of child from Saturday, February 16,2002 until Monday,
February 18, 2002. Hearing is scheduled for April 3, 2002
Historv ofthe Case:
The Mother and Father were married on July 2, 1994 and separated in January of 1999.
The parties reconciled at the end of 2000 and lived together until October 2001 when they
separated. Upon separation, Mother went to stay with a friend in Middletown and Brandon
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stayed with his father for approximately one week. Thereafter, Father and Mother shared
physical custody of Child. During this time, Mother spoke with a friend in North Carolina
regarding Brandon's difficulties in school and behavioral problems. The friend in North
Carolina, Shannon Moore, works with children who have Attention Deficit Hyperactivity
Disorder ("ADHD") and is a Social Worker at Cabarrus Social Services in Cabarrus County,
North Carolina. Ms. Moore suggested that Mother come to North Carolina and speak with a
physician about Brandon's problems. On a weekend in October 2001, while Brandon was with
Father, Mother went to North Carolina to meet with Ms. Moore. In addition, Mother met with
three physicians at Mount Pleasant Family Physicians about Brandon's problems and visited
schools in the area.
While in North Carolina, Ms. Mooreintroduced Mother to Minear and Michael Brown.
The Browns have one daughter. An agreement was made, whereby, Mother agreed to care for the
Browns' daughter in exchange for having a room in the Brown's home.
Following the weekend visit to North Carolina in October, Mother returned to
Pennsylvania. While Father was on a hunting trip, Mother took Brandon to North. Carolina.
Upon arrival in North Carolina, Mother telephoned Father to explain that she had moved to North
Carolina. Father did not initially oppose Mother's move to North Carolina. He subsequently
sought Special Relief on November 27,2001.
Mother enrolled Brandon in school in Cabarrus County, North Carolina on October 30,
2001. Brandon was diagnosed in mid- November with ADHD by physicians at Mount Pleasant
Family Physicians. He is currently taking Adderall and an anger management medication,
Celaxa. In addition, Brandon is seeing a psychologist once a week.
2
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Brandon is currently repeating kindergarten. His school in North Carolina provides full-
day kindergarten, whereas, his school in Pennsylvania offered only half day kindergarten.
Brandon is out of school from May 29 through August 7. In addition, there is a one- week break
for Thanksgiving, seven days off for Easter, two weeks off for Christmas, and several three and
four day weekends off throughout the school year. Brandon's T-Ball season ends May 27.
Mother is currently employed as a cafeteria worker at Brandon's school. This enables her
to be available to take Brandon to school in the morning and pick him up at the end of the day.
Father is an Emergency Medical Technician. He works a swing shift type of schedule that
often requires sixteen (16) hour work days. In addition, he is the President of the New Kingston
Firehouse. His job, along with his duties as a volunteer firefighter, requires him to be out of the
home a substantial amount of time.
Issue Currentlv Before the Court:
Should Brandon be permitted to remain with his Mother in North Carolina, where he has
been living and attending school for the past five months while maintaining contact with his
Father?
Ar!!:ument:
The principles dealing with custody cases in which relocation is a factor are well
established in Pennsylvania. This Court, citing Beers v. Beers, 342 Pa. Superior Ct. 465, 493
A.2d 116, (1985), has stated that "[t]he test is what is in the best interest and welfare of the
child." Roof-Neyhart v. Roof, 43 Cumbo 502 at 508 (1994). In Gruber v. Gruber, 400 Pa.
Superior Ct. 174, 583 A.2d 434 (1990), the Superior Court of Pennsylvania stated that "the best
interests of the child are more closely allied with the interests and quality of life of the custodial
3
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parent and cannot, therefore, be determined without reference to those interests." Id. at 183. In
this case, there is no Custody Order designating a custodial parent. However, the mother has been
the child's primary care giver for the majority of the child's life. The court in Beers emphasized
that it is desirable to maintain the "continued residence of a child with a parent or custodian who
has, 'through daily affection, guidance, companionship, and discipline fulfill[ed] the child's
psychological and physical needs. '" Id. at 471.
In Gruber, the court held that there are three factors to be evaluated in a case that deals
with the relocation of a child: 1) "the court must assess the potential advantages of the proposed
move and the likelihood that the move would substantially improve the quality of life for the
custodial parent and the children and is not the result of a momentary whim on the part of the
custodial parent." Id. at 184. 2) "the court must establish the integrity of the motives of both the
custodial and non-custodial parent in either seeking the move or seeking to prevent it." Id. at 185.
3) "the court must consider the availability of realistic, substitute visitation arrangements which
will adequately foster an ongoing relationship between the child and non-custodial parent." Id. at
185. These three factors have been interpreted by this court in Roof-Neyhart, to require
consideration of the following factors:
(1) the move must be likely to significantly improve the quality oflife for the
parent and the child; (2) the move must not be motivated simply by a desire
to frustrate the temporary custodial rights of the non-custodial parent or to
impede the development of a healthy relationship between the child and the
non-custodial parent; and (3) there must be a feasible substitute temporary
physical custody arrangement to insure a continuing meaningful relationship
between the child and the non-custodial parent.
Id. at 509.
4
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A. Significant Improvement in Quality of Life.
In this case, Mother and Brandon have been living in North Carolina for approximately
five (5) months, and their quality oflife has improved. Brandon is currently in a full- day
kindergarten. Mother will testify that Brandon is thriving in his new school. While living in
Pennsylvania, Brandon was performing poorly in school and had problems staying focused. In
fact, he was required to repeat the kindergarten. Since moving to North Carolina, Brandon's
Attention Deficit Hyperactivity Disorder has been diagnosed and he is presently under the
treatment of a physician. In addition, he sees a counselor each week. He is now performing
better in school and has developed friendships. His teacher at Weddington Hills Elementary
School in Cabarrus County, North Carolina stated, on a recent report card, that she is pleased with
Brandon's progress, and that she has seen improvement in his behavior and attitude towards
learning. He is currently a member of aT-ball team.
In addition, Mother is working in the cafeteria at Brandon's school. This allows her to be
available to care for Brandon before and after school. Also, she is at the school for a significant
portion of the school day, allowing Brandon access to her if the need arises.
B. Relocation to North Carolina Not Motivated by Desire to Frustrate Custody Rights of
Father.
Mother did not make the decision to move to North Carolina out of a desire to frustrate
the custody rights of the father. Rather, she moved out of a motivation to get medical treatment
for Brandon. Prior to moving to North Carolina, Mother was aware that her son was performing
poorly in school, was hyperactive, and had violent outbursts. Mother wished to have her son
evaluated for a possible medical explanation for his behavior, but Father objected. Father claimed
5
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his son's behavior was simply how boys behave.
Concerned about Brandon, Mother contacted Shannon Moore, a social worker in North
Carolina who told Mother that she would assist in her fmding help for Brandon. Mother, as a
result, decided to visit North Carolina. Mother met with three doctors at Mount Pleasant Family
Physicians concerning Brandon's behavior. In addition, Mother visited schools in the area to find
one suitable for Brandon. Mother then decided to move to North Carolina because she had found
people to help her with Brandon's problems.
In addition, Mother was not motivated to move in order to impede the development of a
healthy relationship between Brandon and Father. Following the move, the Mother, through her
former attorney, proposed a Stipulation For an Agreed Order of Custody pursuant to which Father
would have custody of Brandon for the entire school summer vacation except for the last two
weeks, eight consecutive days over Christmas, five consecutive days during Spring Break, and
any other time determined by mutual agreement. Mother maintains that she is still offering this
arrangement to Father with additional custody over Thanksgiving, Easter, and various three and
four day weekends coinciding with school vacation.
Mother encourages Brandon to call his father. She mails Father report cards, school
progress reports, and school projects. In addition to the two custodial periods allowed under the
Court Orders dated December 13,2001 and February 7, 2002, Mother has arranged two additional
periods of custody for the Father. On March 14,2002, Mother and Father met in Fairville,
Virginia to exchange Brandon for the weekend. Mother is also arranging for Brandon to be in his
father's custody during Easter break, from March 28,2002 until April 7, 2002.
6
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C. A Substitute Custody Arrangement Can be Arranged to Insure Meaningful
Relationship with Father.
As noted above, the mother is willing to work out a custody agreement with the father.
She has offered an alternate custody arrangement for Father to have periods of partial physical
custody of Brandon. Mother believes that through generous periods of partial custody, it is
feasible for Father to maintain a meaningful relationship with Brandon.
The best interests of Brandon will be served in allowing him to remain in North Carolina
with Mother. He is under the treatment of a physician and sees a counselor weekly. He is doing
well in his new school. Mother encourages contact between Brandon and his father and believes
that a substitute custody arrangement can be arranged to insure a meaningful relationship with
Father.
Witnesses to be Called at the Rearin!!: and a Snmmarv of their Anticiuated Testimonv:
Michelle Rabenstein, Mother. Mother will testify that she moved to North Carolina to
seek medical treatment for Brandon. Brandon is being treated by a physician in North Carolina
and is currently doing well in school. She will testify that she has encouraged and initiated
contact between Brandon and his father through telephone calls and periods of partial physical
custody. She will testify that she has attempted to come to an agreement with the father regarding
custody.
Position of the Mother. Michelle Rabenstein:
Defendant Michelle Rabenstein contends that it is in Brandon's best interests to allow him
to remain in her care in North Carolina. She has been Brandon's primary care giver throughout
his life. Brandon is receiving treatment and doing well in school in North Carolina. Mother
7
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asserts that it is possible for Brandon to remain in North Carolina and continue to have a healthy
relationship with his father through telephone contact and periods of partial physical custody. For
these reasons, Mr. Rabenst~in's Petition for Special Relief should be denied, and Ms. Rabenstein
should be granted primary physical custody of Brandon.
Respectfully Submitted,
S\L?.I02-
Date
~~~&:L
ROBERT E. RAINS
LUCY JOHNSTON-WALSH
Supervising Attorneys
FAMILY LAW CLINIC
45 North Pitt Street
Carlisle, PA 17013
717/243- 2968
Counsel for Defendant
8
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Mt\R fi 2002
EDWARD L. RABENSTEIN, II,
Plaintiff
:IN THE COURT OF COMMON PLEAS OF
:CUMBERLAND COUNTY, PENNSYLVANIA
v.
:CNILACTION-LAW
:IN CUSTODY
MICHELLE RABENSTEIN,
Defendant
:NO. 01-6647 CNIL TERM
PRE-HEARING CUSTODY MEMORANDUM OF
DEFENDANT MICHELLE RABENSTEIN
Defendant Michelle Rabenstein, by her attorneys, the Family Law Clinic, hereby submits
the following Pre- Hearing Memorandum. This case concerns a custody dispute. The Plaintiff is
Edward L. Rabenstein, II ("Father"). The Defendant is Michelle Rabenstein ("Mother"). The
parties are the natural parents of the minor child Brandon 1. Rabenstein, born August 10, 1995.
Pursuant to an Order of this Court in response the Father's Petition for special relief,
Mother has had primary physical custody of Brandon since December 13, 2001. Under the Order,
father had partial physical custody of Child from Saturday, December 22,2001 until Sunday,
December 30, 2001. The parties were unable to come to an agreement at a Custody Conciliation
Conference held on January 30, 2002. On February 7,2002, an Order was entered scheduling a
Hearing and extending Mother's right to primary physical custody of the child. Father was
granted partial physical custody of child from Saturday, February 16,2002 until Monday,
February 18,2002. Hearing is scheduled for April 3, 2002
Historv of the Case:
The Mother and Father were married on July 2,1994 and separated in January of 1999.
The parties reconciled at the end of 2000 and lived together until October 2001 when they
separated. Upon separation, Mother went to stay with a friend in Middletown and Brandon
1
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stayed with his father for approximately one week. Thereafter, Father and Mother shared
physical custody of Child. During this time, Mother spoke with a friend in North Carolina
regarding Brandon's difficulties in school and behavioral problems. The friend in North
Carolina, Shannon Moore, works with children who have Attention Deficit Hyperactivity
Disorder ("ADHD") and is a Social Worker at Cabarrus Social Services in Cabarrus County,
North Carolina. Ms. Moore suggested that Mother come to North Carolina and speak with a
physician about Brandon's problems. On a weekend in October 2001, while Brandon was with
Father, Mother went to North Carolina to meet with Ms. Moore. In addition, Mother met with
three physicians at Mount Pleasant Family Physicians about Brandon's problems and visited
schools in the area.
While in North Carolina, Ms. Moore introduced Mother to Minear and Michael Brown.
The Browns have one daughter. An agreement was made, whereby, Mother agreed to care for the
Browns' daughter in exchange for having a room in the Brown's home.
Following the weekend visit to North Carolina in October, Mother returned to
Pennsylvania. While Father was on a hunting trip, Mother took Brandon to North. Carolina.
Upon arrival in North Carolina, Mother telephoned Father to explain that she had moved to North
Carolina. Father did not initially oppose Mother's move to North Carolina. He subsequently
sought Special Relief on November 27, 200L
Mother enrolled Brandon in school in Cabarrus County, North Carolina on October 30,
2001. Brandon was diagnosed in mid- November with ADHD by physicians at Mount Pleasant
Family Physicians. He is currently taking Adderall and an anger management medication,
Celaxa. In addition, Brandon is seeing a psychologist once a week.
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Brandon is currently repeating kindergarten. His school in North Carolina provides full-
day kindergarten, whereas, his school in Pennsylvania offered only half day kindergarten.
Brandon is out of school from May 29 through August 7. In addition, there is a one- week break
for Thanksgiving, seven days off for Easter, two weeks off for Christmas, and several three and
four day weekends off throughout the school year. Brandon's T-Ball season ends May 27.
Mother is currently employed as a cafeteria worker at Brandon's school. This enables her
to be available to take Brandon to school in the morning and pick him up at the end of the day.
Father is an Emergency Medical Technician. He works a swing shift type of schedule that
often requires sil\.teen (16) hour work days. In addition, he is the President of the New Kingston
Firehouse. His job, along with his duties as a volunteer firefighter, requires him to be out of the
home a substantial amount of time.
Issue Currentlv Before the Court:
Should Brandon be permitted to remain with his Mother in North Carolina, where he has
been living and attending school for the past five months while maintaining contact with his
Father?
Ar!!:ument:
The principles dealing with custody cases in which relocation is a factor are well
established in Pennsylvania. This Court, citing Beers v. Beers, 342 Pa. Superior Ct. 465, 493
A.2d 116, (1985), has stated that "[t]he test is what is in the best interest and welfare of the
child." Roof-Neyhart v. Roof, 43 Cumbo 502 at 508 (1994). In Gruber v. Gruber, 400 Pa.
Superior Ct. 174,583 A.2d 434 (1990), the Superior Court of Pennsylvania stated that "the best
interests of the child are more closely allied with the interests and quality of life of the custodial
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parent and cannot, therefore, be determined without reference to those interests." Id. at 183. In
this case, there is no Custody Order designating a custodial parent. However, the mother has been
the child's primary care giver for the majority of the child's life. The court in Beers emphasized
that it is desirable to maintain the "continued residence of a child with a parent or custodian who
has, 'through daily affection, guidance, companionship, and discipline fulfill[ ed] the child's
psychological and physical needs. ,,, Id. at 471.
In Gruber, the court held that there are three factors to be evaluated in a case that deals
with the relocation of a child: 1) "the court must assess the potential advantages of the proposed
move and the likelihood that the move would substantially improve the quality of life for the
custodial parent and the children and is not the result of a momentary whim on the part of the
custodial parent." Id. at 184. 2) "the court must establish the integrity of the motives of both the
custodial and non-custodial parent in either seeking the move or seeking to prevent it." Id. at 185.
3) "the court must consider the availability of realistic, substitute visitation arrangements which
will adequately foster an ongoing relationship between the child and non-custodial parent." Id. at
185. These three factors have been interpreted by this court in Roof-Neyhart, to require
consideration of the following factors:
(1) the move must be likely to significantly improve the quality oflife for the
parent and the child; (2) the move must not be motivated simply by a desire
to frustrate the temporary custodial rights of the non-custodial parent or to
impede the development of a healthy relationship between the child and the
non-custodial parent; and (3) there must be a feasible substitute temporary
physical custody arrangement to insure a continuing meaningful relationship
between the child and the non-custodial parent.
Id. at 509.
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A. Significant Improvement in Quality of Life.
In this case, Mother and Brandon have been living in North Carolina for approximately
five (5) months, and their quality of life has improved. Brandon is currently in a full- day
kindergarten. Mother will testify that Brandon is thriving in his new school. While living in
Pennsylvania, Brandon was performing poorly in school and had problems staying focused. In
fact, he was required to repeat the kindergarten. Since moving to North Carolina, Brandon's
Attention Deficit Hyperactivity Disorder has been diagnosed and he is presently under the
treatment of a physician. In addition, he sees a counselor each week. He is now performing
better in school and has developed friendships. His teacher at Weddington Hills Elementary
School in Cabarrus County, North Carolina stated, on a recent report card, that she is pleased with
Brandon's progress, and that she has seen improvement in his behavior and attitude towards
learning. He is currently a member of aT-ball team.
In addition, Mother is working in the cafeteria at Brandon's school. This allows her to be
available to care for Brandon before and after school. Also, she is at the school for a significant
portion of the school day, allowing Brandon access to her if the need arises.
B. Relocation to North Carolina Not Motivated by Desire to Frustrate Custody Rights of
Father.
Mother did not make the decision to move to North Carolina out of a desire to frustrate
the custody rights of the father. Rather, she moved out of a motivation to get medical treatment
for Brandon. Prior to moving to North Carolina, Mother was aware that her son was performing
poorly in school, was hyperactive, and had violent outbursts. Mother wished to have her son
evaluated for a possible medical explanation for his behavior, but Father obj ected. Father claimed
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his son's behavior was simply how boys behave.
Concerned about Brandon, Mother contacted Shannon Moore, a social worker in North
Carolina who told Mother that she would assist in her finding help for Brandon. Mother, as a
result, decided to visit North Carolina. Mother met with three doctors at Mount Pleasant Family
Physicians concerning Brandon's behavior. In addition, Mother visited schools in the area to find
one suitable for Brandon. Mother then decided to move to North Carolina because she had found
people to help her with Brandon's problems.
In addition, Mother was not motivated to move in order to impede the development of a
healthy relationship between Brandon and Father. Following the move, the Mother, through her
former attorney, proposed a Stipulation For an Agreed Order of Custody pursuant to which Father
would have custody of Brandon for the entire school summer vacation except for the last two
weeks, eight consecutive days over Christmas, five consecutive days during Spring Break, and
any other time determined by mutual agreement. Mother maintains that she is still offering this
arrangement to Father with additional custody over Thanksgiving, Easter, and various three and
four day weekends coinciding with school vacation.
Mother encourages Brandon to call his father. She mails Father report cards, school
progress reports, and school projects. In addition to the two custodial periods allowed under the
Court Orders dated December 13,2001 and February 7, 2002, Mother has arranged two additional
periods of custody for the Father. On March 14,2002, Mother and Father met in Fairville,
Virginia to exchange Brandon for the weekend. Mother is also arranging for Brandon to be in his
father's custody during Easter break, from March 28, 2002 until April 7, 2002.
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C. A Substitute Custody Arrangement Can be Arranged to Insure Meaningful
Relationship with Father.
As noted above, the mother is willing to work out a custody agreement with the father.
She has offered an alternate custody arrangement for Father to have periods of partial physical
custody of Brandon. Mother believes that through generous periods of partial custody, it is
feasible for Father to maintain a meaningful relationship with Brandon.
The best interests of Brandon will be served in allowing him to remain in North Carolina
with Mother. He is under the treatment of a physician and sees a counselor weekly. He is doing
well in his new school. Mother encourages contact between Brandon and his father and believes
that a substitute custody arrangement can be arranged to insure a meaningful relationship with
Father
Witnesses to be Called at the Rearin!!: and a Summary of their Anticipated Testimonv:
Michelle Rabenstein. Mother. Mother will testify that she moved to North Carolina to
seek medical treatment for Brandon. Brandon is being treated by a physician in North Carolina
and is currently doing well in school. She will testify that she has encouraged and initiated
contact between Brandon and his father through telephone calls and periods of partial physical
custody. She will testify that she has attempted to come to an agreement with the father regarding
custody.
Position of the Mother. Michelle Rabenstein:
Defendant Michelle Rabenstein contends that it is in Brandon's best interests to allow him
to remain in her care in North Carolina. She has been Brandon's primary care giver throughout
his life. Brandon is receiving treatment and doing well in school in North Carolina. Mother
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asserts that it is possible for Brandon to remain in North Carolina and continue to have a healthy
relationship with his father through telephone contact and periods of partial physical custody. For
these reasons, Mr. Rabenstein's Petition for Special Relief should be denied, and Ms. Rabenstein
should be granted primary physical custody of Brandon.
Respectfully Submitted,
3\LLI02-
Date
Caro Verish
ertified Legal Intern
'._}~~&:L
~ .PLACE
ROBERT E. RAINS
LUCY JOHNSTON- WALSH
Supervising Attorneys
FAMILY LAW CLINIC
45 North Pitt Street
Carlisle, PA 17013
717/243- 2968
Counsel for Defendant
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EDWARD L. RABENSTEIN, II,
PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
MICHELLE R. RABENSTEIN,
DEFENDANT
01-6647 CIVIL TERM
ORDER OF COURT
AND NOW, this
:3..e
day of April, 2002, this custody case having
been called for a hearing, and the parties having reached an interim agreement, IT IS
ORDERED:
(1) Edward L. Rabenstein, II, and Michelle R. Rabenstein, shall have joint legal
custody of Brandon J. Rabenstein, born August 10,1995.
(2) Brandon shall complete the current school year in North Carolina where he is
now living with his mother.
(3) The parents shall split Brandon's time between them during each summer
school vacation period.
(4) Starting in the 2002-2003 school year, Brandon shall live with his father in
Pennsylvania. The parents shall arrange for the mother to have periods of temporary
physical custody during each school year.
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Douglas G. Miller, Esquire
For Plaintiff
Carol Verish, Esquire
Family Law Clinic
For Defendant
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EDWARD L. RABENSTEIN, II,
Plaintiff
:IN THE COURT OF COMMON PLEAS OF
:CUMBERLAND COUNTY, PENNSYLVANIA
v.
: CIVIL ACTION-LAW
:IN CUSTODY
MICHELLE RABENSTEIN,
Defendant
:NO. 01-6647 CIVIL TERM
CERTIFICATE OF SERVICE
I, Carol Verish, hereby certify that I am serving a true and correct copy of
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Douglas Miller, Esquire
Irwin, McKnight & Hughes
60 West Pomfret Street
Carlisle, PA 17013-3222
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FAMILY LAW CLINIC
45 North Pitt Street
Carlisle, PA 17013
717-243-2968
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:IN THE COURT OF COMMON PLEAS OF
:CUMBERLAND COUNTY, PENNSYLVANIA
:CNILACTION-LA W
:IN CUSTODY
:NO. 01-6647 CNIL TERM
EDWARD L. RABENSTEIN, II,
Plaintiff
MICHELLE RABENSTEIN,
Defendant
ORDER
And now, this ~ay of ~2002, the custody arrangements of the attached
Custody Agreement are entered as an Order of Court, vacating the Interim Custody Order of
April 3, 2002.
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Plaintiff
:IN THE COURT OF COMMON PLEAS OF
:CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION-LAW
:IN CUSTODY
:NO. 01-6647 CIVIL TERM
CUSTODY AGREEMENT
v.
MICHELLE RABENSTEIN,
Defendant
THIS AGREEMENT, made this
day of
, 2002, between Michelle Rabenstein,
hereinafter mother, and Edward Rabenstein, II, hereinafter father, concerns the custody of their child:
Brandon 1. Rabenstein, born Augnst 10,1995.
Mother and father desire to enter into an agreement as to the custody of the child. Mother
and father agree to the following:
1. The mother and father shall share legal custody of the child.
2. Parents shall share physical custody of the child in the following manner:
a. Mother shall have primary physical custody of the child from the date of this
Agreement until Sunday, June 1,2002.
b. Father shall have primary physical custody from June 2, 2002 through July
7,2002.
,
c. Mother shall have primary physical custody of the child from Saturday, July
7,2002 until Saturday, Augnst 18, 2002.
d. Father shall have primary physical custody of the child during the school
e.
year.
Mother shall have periods of partial physical custody according to the
following school schedule: Mother shall have physical custody of the child
for all scheduled school vacations in which child has at least three
consecutive days of vacation, to include weekends. To alleviate any burdens
on Father, Mother's custody of the child shall be every other three day
weekend holiday. The child will be exchanged on the evening of the child's
R.ECEIVEO SEP 5 2002
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last day of school and the evening before school is scheduled to resurne.
These periods of vacation include, but are not limited to, Columbus Day
Weekend, Veterans Day Weekend, Martin Luther King Day, President's Day
Weekend, Spring or Easter Break, and Thanksgiving Break.
f. Beginning with the summer of 2003, Mother shall have physical custody of
the child beginning the first weekend after the child's school year ends until
the weekend two weeks before the next school year begins. Father may have
physical custody of the child for one week during the summer, with one week
advance notice to Mother.
g. Unless otherwise agreed to by the parties, the child shall not be exchanged for
Labor Day and Memorial Day weekends.
h. Mother shall have custody of the child for Christmas vacation, beginning on
the evening of the child's last day of school through the morning of
December 31. Father shall have primary physical custody of the child from
December 31 through the end of the child's Christmas vacation.
1. Mother and Father shall share custody at other times, as mutually agreed to
by the parties.
5. The Father shall seek medical treatment for the child's medical condition of
Attention Deficit Hyperactivity Disorder, upon the child's return to Pennsylvania, in
order to eontinuethe administration of medication O1i.a consistent basis. Medical
6.
treatment shall also include any therapy needed by the child. Both parents shall
administer the child's medication as prescribed by the child's physician, during his
or her period of custody.
The mother and father shall be entitled to reasonable telephone access with the child
while the child is in the other's custody.
The parties agree to split transportation of the child for custodial exchanges. Unless
otherwise agreed to by both parties, parties will exchange the child in Fairville,
7.
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8 The parties shall keep one another advised of their current address and telephone
nurnber.
9 The father and the mother will notify each other of all medical care the child receives
while in that parent's care. The father and the mother will notify the other
immediately of medical emergencies which arise while the child is in that parent's
care.
10. The mother and father shall keep one another informed of the child's progress in
school through the mailing of progress reports, report cards, and any additional
school materials. The parties shall keep one another informed of the child's social
and extracurricular activities.
11.
Neither parent will do anything which may estrange the child from the other party,
or injure the opinion of the child as to the other parent or which may hamper the free
and natural development of the child's love and respect for the other parent.
The parties intend to be bound by the terms of this agreement and intend for this
Agreement to be made an Order of Court.
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THO WPLACE
ROBER E. RAINS
LUCY JOHNSTON-WALSH
Supervising Attorneys
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Edward Rabenstein
Dou as
Irwin, M .ght & Hughes
60 West Pomfret Street
Carlisle, PA 17013
(717) 249- 2353
F AMIL Y LAW CLINIC
45 North Pitt Street
Carlisle, P A 17013
(717) 243-2968
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:IN THE COURT OF COMMON PLEAS OF
:CUMBERLAND COUNTY, PENNSYLVANIA
:CNILACTION-LAW
:IN CUSTODY
:NO. 01-6647 CNIL TERM
EDWARD L RABENSTEIN, II,
Plaintiff
MICHELLE RABENSTEIN,
Defendant
CERTIFICATE OF SERVICE
I, Megan Malone, Certified Legal Intern, do hereby certify that I served a true and correct
copy of the Custody Agreement on Douglas Miller, Esq of Irwin, McKnight & Hughes located at
60 West Pomfret Street, Carlisle, P A 17013 by depositing a copy of the same in the United States
Mail, first class, postage prepaid, on this 11th day of September, 2002.
Date:jpi" /1, ?oo 2
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Megan alone '
Certlfie Legal Intern
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EDW ARDL. RABENSTEIN, II, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
V.
: NO. 2001-6647 CIVIL TERM
MICHELLE RABENSTEIN,
Defendant
: CIVIL ACTION - LAW
: IN CUSTODY
ORDER OF COURT
AND NOW, this l ~ day of ~\ ,2003, upon
consideration of the attached Custody Conciliation Report, it is ordered and directed as
follows:
1. The prior Order of Court dated September 13,2002 is hereby vacated.
2. The Father, Edward L. Rabenstein, II, and the Mother, Michelle
Rabenstein, shall have shared legal custody of Brandon J. Rabenstein, born August 10,
1995. Each parent shall have an equal right, to be exercised jointly with the other parent,
to make all major non-emergency decisions affecting the Child's general well-being
including, but not limited to, all decisions regarding his health, education and religion.
All decisions affecting the child's growth and development shall be considered major
decisions and shall be made by the parents jointly, after discussion and consultation.
Both parties shall have equal access to all medical and school records. This means that
the Child's school and doctors shall release all records to both parents. Mother is also
permitted to pick up the child from school for her designated custody periods.
3. Father shall have primary physical custody of the Child.
4. Mother shall have periods of partial physical custody as follows:
A. Beginning April 11, 2003 and during the school year, alternating
weekends from Friday at 5:00 p.m. to Sunday at 6:00 p.m. Mother's
weekends shall be extended to Monday at 6:00 p.m. when the child
has a Monday holiday from school.
B. During the school year, every Wednesday from 3:30 p.m. to 7:30 p.m.
Mother may pick up the child at school. Mother shall call Father
every Monday and confirm that she will exercise this period of partial
custody.
C. Every weekend from Friday at 5:00 p.m. to Sunday at 6:00 p.m. when
Father has Guard Duty. However Mother shall provide a makeup
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weekend for Father if his Guard weekend does not coincide with
Mother's regular weekend,
D. Once summer vacation begins for the child, Mother shall have five (5)
consecutive weeks beginning the first Friday after school ends.
During this time, Father shall have alternating weekends at times
agreed by the parties. If times cannot be agreed upon, the times shall
be Friday at 5:00 p.m. to Sunday at 6:00 p.m.
E. For the remainder of the summer, Mother's partial physical custody
shall revert to alternating weekends as aforesaid and every Wednesday
as aforesaid.
F. Such other times as the parties agree.
5.
Holidays:
A. Thanksgiving shall be alternated with Father having the child in odd
numbered years, and Mother having the child in even nurnbered years,
from 9:00 a.m. to 6:00 p.m.
B. Christmas shall be in two Blocks. Block A shall be from December 23
at 9:00 p.m. to December 24 at 9:00 p.m. Block B shall be from
Christmas Eve at 9:00 p.m. to Christmas Day at 9:00 p.m. Mother
shall have Block A in odd numbered years and Block B in even
numbered years, Father shall have Block A in even numbered years
and Block B in odd numbered years.
C. Easter shall be alternated from year to year with Father having odd
numbered years and Mother having even nurnbered years, from 9:00
a.m. to 6:00 p.m. The non-custodial parent shall have the child on the
Saturday before Easter from 9:00 a.m. to 6:00 p.m.
D. Memorial Day, July 4th and Labor Day shall be alternated by the
parties with Mother having Memorial Day, 2003, from 9:00 a.m. to
6:00 p.m.
E. Mother shall have the child on Mother's Day from 9:00 a.m. to 6:00
p.m.; Father shall have the child of Father's Day from 9:00 a.m. to
6:00 p.m.
F. Each party shall have several hours with the child on the child's
birthday.
6. In the event that either party is in need of babysitting services for longer
than four hours during hislher period of custody, the custodial parent shall contact the
other parent within a reasonable time so that the other parent may accept the opportunity
to provide care for the child before arranging for a third party to baby sit.
7. Unless otherwise specified in another provision of this Order or the parties
otherwise agree, custodial exchanges shall take place at Denny's on the Carlisle Pike.
While other parties may be present during exchanges, only Mother, Father and Child
shall get out of the cars.
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8. Both parties shall have liberal telephone contact with the Child..
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9. Neither party will do or permit any third party to do or say anything that
may estrange the Child from the other party, or injure the opinion of the child as to the
parent or which may hamper the free and natural development of the Child's love and
respect for the other parent.
10. Neither party shall remove the Child from Pennsylvania without prior
notice to the other with a location and telephone number where the Child may be reached.
11. This Order is entered pursuant to an agreement of the parties at a Custody
Conciliation Conference. The parties may modify the provisions of this Order by mutual
consent. In the absence of mutual consent, the terms of this Order shall control.
cc;)l€ather Fine, certified legal intern, for Mother
Lucy Johnston-Walsh, Esquire Family Law Clinic
~ouglas Miller, Esquire, for Father
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EDWARD L. RABENSTEIN, II, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYL VANIA
V.
: 2001-6647 CIVIL TERM
MICHELLE RABENSTEIN,
Defendant
: CIVIL ACTION - LAW
: IN CUSTODY
PRIOR JUDGE: Edgar B. Bayley, J.
CUSTODY CONCILIATION SUMMARY REPORT
IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL
PROCEDURE 1915.3-8, the undersigned Custody Conciliator submits the following
report:
1. The pertinent information concerning the Child who is the subject of this
litigation is as follows:
NAME
DATE OF BIRTH CURRENTLY IN CUSTODY OF
Brandon J. Rabenstein
August 10, 1995 Father
2. A Conciliation Conference was held in this matter on April 9, 2003, with
the following individuals in attendance: The Mother, Michelle Rabenstein, with her
counsel, Heather Fine, certified legal intern, and Lucy Johnston Walsh, Esquire ofthe
Family Law Clinic and Father, Edward 1. Rabenstein, II, with his counsel, Douglas
Miller, Esquire.
3. A stipulated Order of Court was entered by the Honorable Edgar B.
Bayley dated September 13,2002 providing for shared legal custody, Father having
primary physical custody and Mother having partial physical custody in the surnrner.
4.
The parties agreed to an Order in the form as attached.
<{- /h'"3
Date
ac eline M. Verney, Esquire
Custody Conciliator
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EDWARD L. RABENSTEIN, II,
Plaintiff
:IN THE COURT OF COMMON PLEAS OF
:CUMBERLAND COUNTY, PENNSYL VANIA
v.
:CIVIL ACTION-LAW
:IN CUSTODY
MICHELLE RABENSTEIN,
Defendant
:NO. 01-6647 CIVIL TERM
PRAECIPE TO PROCEED
IN FORMA PAUPERIS
To the Prothonotary:
Kindly allow Michelle Rabenstein, Defendant, to proceed in forma pauperis.
I, Heather Fine, Certified Legal Intern in the Family Law Clinic, for the party proceeding
in forma pauperis, certify that I believe the party is unable to pay the costs and that I am
providing free legal service to the party.
Date: March 18, 2003
k?~
Heather Fine
Certified Legal Intern
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THOMAS . PLACE
LUCY JOHNSTON-WALSH
Supervising Attorneys
THE F AMIL Y LAW CLINIC
45 North Pitt Street
Carlisle, P A 17013
(717) 243-2968
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EDWARD L. RABENSTEIN, II
PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL V ANlA
V.
01-6647 CIVIL ACTION LAW
MICHELLE RABENSTEIN
DEFENDANT
IN CUSTODY
ORDER OF COURT
AND NOW,
Monday, March 24, 2003
, upon consideration of the attached Complaint,
it is hereby directed that parties and their respective counsel appear before Jacqueline M. Verney, Esq. , the conciliator,
at 4th Floor, Cumherland County Courthouse, Carlisle on Wednesday, April 09, 2003 at 2:30 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 Abnse orders,
Special Relief orders, and Custody orders to the conciliator 48 hours prior to scheduled hearing.
FOR THE COURT,
By: /s/
Tacqueline M. Vern/Ol. Esq. v
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 TillS 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
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EDWARD L. RABENSTEIN, II,
Plaintiff
:IN THE COURT OF COMMON PLEAS OF
:CUMBERLAND COUNTY, PENNSYLVANIA
v,
: CIVIL ACTION-LAW
:IN CUSTODY
MICHELLE RABENSTEIN,
Defendant
:NO. 01-6647 CIVIL TERM
ORDER OF COURT
AND NOW, this day of
, 2003, upon consideration of the attached
complaint, it is hereby directed that the parties and their respective counsel appear before,
, the conciliator, at
, on the
day of
, 2003, at
m., for a Pre-Hearing Custody Conference. At such conference, an effort
will be made to 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.
FOR THE COURT:
By:
Custody Conciliator
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, P A 17013
(717) 249-3166
AMERICANS WITH DISABILITIES ACT OF 1990
The Court of Common Pleas of Cumberland County is required by law to comply with the
Americans with Disabilities 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.
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EDWARD L. RABENSTEIN, II,
Plaintiff
:IN THE COURT OF COMMON PLEAS OF
:CUMBERLAND COUNTY, PENNSYLVANIA
v.
: CIVIL ACTION-LAW
:IN CUSTODY
MICHELLE RABENSTEIN,
Defendant
:NO. 01-6647 CIVIL TERM
PETITION TO MODIFY CUSTODY ORDER
1. The petition of Michelle Rabenstein, by her attorneys, the Family Law Clinic,
respectfully represents that on September 13, 2002, an Order of Court was entered for custody of
Brandon J. Rabenstein, born August 10,1995, a true and correct copy of which is attached as
Exhibit A.
2. This Order should be modified because:
a. Mother no longer resides in North Carolina and currently resides in Middletown,
Pennsylvania.
b. The parties have not followed the September 13, 2002 Order for some time, and
Mother would like to establish an appropriate visitation schedule now that she is living in
Pennsylvania.
c. In the past, Father has withheld custody ofthe child during the Mother's custodial
periods.
d. In the past, Father has denied Mother reasonable telephone contact with the child.
e. Mother would like increased periods of partial custody of her child because she
believes that a stronger bond between mother and child would benefit the child.
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WHEREFORE, Petitioner asks that the Court modifY the existing Order for Custody to
allow Mother additional periods of partial custody, because it will be in the best interest of the
child.
Date: 3 If' 10' 3
~z
Heather Fine
Certified Legal Intern
Robe
Thoma M. Place
Lucy Johnston-Walsh
Supervising Attorneys
F AMIL Y LAW CLINIC
45 North Pitt Street
Carlisle, P A 17013
(717) 243-2968
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VERIFICATION
I verify that the statements made in this petition are true and correct. I understand that
false statements herein are subject to the penalties of 18 Pa. C.S. S 4904 relating to unsworn
falsification to authorities.
Date: 7\ l~ \ 03
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:IN THE COURT OF COMMON PLEAS OF
:CUMBERLAND COUNTY, PENNSYLVANIA
:CNIL ACTION-LAW
:IN CUSTODY
:NO. 01-6647 CNIL TERM
EDWARD L.RABENSTEIN, II,
Plaintiff
MICHELLE RABENSTEIN,
Defendant
ExhIbIt
A
ORDER
And now, this JJ.!!! day o~, 2002, the custody arTangements of the attached
Custody Agreement are entered as an Order of Court, vacating the Interim Custody Order of
April 3, 2002.
J5/~AI 13.-Bh:lr
Edgar B. yley, .
RECEIVED SfP 1 7 2002
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EDWARD L. RABENSTEIN, II,
Plaintiff
:IN THE COURT OF COMMON PLEAS OF
:CUMBERLAND COUNTY, PENNSYLVANIA
v.
:CNIL ACTION-LAW
:IN CUSTODY
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, 2002, between Michelle Rabenstein,
MICHELLE RABENSTEIN,
Defendant
:NO. 01-6647 CIVIL TERM
CUSTODY AGREEMENT
Tms AGREEMENT, made this
day of
hereinafter mother, and Edward Rabenstein, II, hereinafter father, concerns the custody of their child:
Brandon 1. Rabenstein, born August 10, 1995.
Mother and father desire to enter into an agreement as to the custody of the child. Mother
and father agree to the following:
1. The mother and father shall share legal custody of the child.
2. Parents shall share physical custody of the child in the following manner:
a. Mother shall have primary physical custody of the child from the date of this
Agreement until Sunday, June 1,2002.
b. Father shall have primary physical custody from June 2, 2002 through July
7,2002.
,
c. Mother shall have primary physical custody of the child from Saturday, July
7,2002 until Saturday, August 18,2002.
d. Father shall have primary physical custody of the child du.l-ing the school
year.
e. Mother shall have periods of partial physical custody according to the
following school schedule: Mother shall have physical custody of the child
for all scheduled school vacations in which child has at least three
consecutive days of vacation, to include weekends. To alleviate any burdens
on Father, Mother's custody of the child shall be every other three day
weekend holiday. The child will be exchanged on the evening of the child's
RECEIVED SEP 5 2002
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last day of school and the evening before school is scheduled to resurne.
These periods of vacation include, but are not limited to, Colurnbus Day
Weekend, Veterans Day Weekend, Martin Luther King Day, President's Day
Weekend, Spring or Easter Break, and Thanksgiving Break.
f. Beginning with the summer of 2003, Mother shall have physical custody of
the child beginning the flfst weekend after the child's school year ends until
the weekend two weeks before the next school year begins. Father may have
physical custody of the child for one week during the summer, with one week
advance notice to Mother.
g. Unless otherwise agreed to by the parties, the child shall not be exchanged for
Labor Day and Memorial Day weekends.
h. Mother shall have custody of the child for Christmas vacation, beginning on
the evening of the child's last day of school through the morning of
December 31. Father shall have primary physical custody of the child from
December 31 through the end of the child's Christmas vacation.
1. Mother and Father shall share custody at other times, as mutually agreed to
by the parties.
5. The Father shall seek medical treatment for the child's medical condition of
Attention Deficit Hyperactivity Disorder, upon the child's return to Pennsylvania, in
order to continllethe. adminisrration of medication OIl a consistent basi,. ~."redical
treatment shall also include any therapy needed by the child. Both parents shall
administer the child's medication as prescribed by the child's physician, during his
or her period of custody.
6. The mother and father shall be entitled to reasonable telephone access with the child
while the child is in the other's custody.
7 The parties agree to split transportation of the child for custodial exchanges. Unless
otherwise agreed to by both parties, parties will exchange the child in FairviIle,
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8. The parties shall keep one another advised of their current address and telephone
number.
9. The father and the mother will notify each other of all medical care the child receives
while in that parent's care. The father and the mother will notify the other
immediately of medical emergencies which arise while the child is in that parent's
care.
10. The mother and father shall keep one another informed of the child's progress in
school through the mailing of progress reports, report cards, and any additional
school materials. The parties shall keep one another informed of the child's social
and extracurricular activities.
11. Neither parent will do anything which may estrange the child from the other party,
or injure the opinion of the child as to the other parent or which may hamper the free
and natural development of the child's love and respect for the other parent.
12. The parties intend to be bound by the terms of this agreement and intend for this
Agreement to be made an Order of Court.
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Edward Rabenstein
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Irwin, M . ght '* Hughes
60 West Pomfret Street
Carlisle, PA 17013
(717) 249- 2353
.~Mr~
Meg "alone
Certi led Legal Intern
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THO WPLACE
ROBER E. RAINS
LUCY JOHNSTON-WALSH
Supervising Attorneys
FAMILY LAW CL1N1C
45 North Pitt Street
Carlisle,PA 17013
(717) 243-2968
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EDWARD L. RABENSTEIN, II,
Plaintiff
:IN THE COURT OF COMMON PLEAS OF
:CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION-LAW
:IN CUSTODY
:NO. 01-6647 CIVIL TERM
v.
MICHELLE RABENSTEIN,
Defendant
CERTIFICATE OF SERVICE
I, Megan Malone, Certified Legal Intern, do hereby certify that I served a tme and correct
copy of the Custody Agreement on Douglas Miller, Esq of Irwin, McKnight & Hughes located at
60 West Pomfret Street, Carlisle, PA 17013 by depositing a copy of the same in the United States
Mail, first class, postage prepaid, on this 11th day of September, 2002.
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Certifie Legal Intern
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EDWARD L. RABENSTEIN, II,
Plaintiff
:IN THE COURT OF COMMON PLEAS OF
:CUMBERLAND COUNTY, PENNSYLVANIA
v.
: CIVIL ACTION-LAW
:IN CUSTODY
MICHELLE RABENSTEIN,
Defendant
:NO. 01-6647 CIVIL TERM
CERTIFICATE OF SERVICE
I, Heather Fine, Certified Legal Intern, do hereby certify that I am serving a true and
correct copy of a Petition to Modify Custody Order on Douglas Miller, Esq. ofIrwin, McKnight
& Hughes located at 60 West Pomfret Street, Carlisle, P A 17013 by depositing a copy of the
same in the United States Mail, first class, postage prepaid, on this _ day of March, 2003.
Date
3/1% /03
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Heather Fine
Certified Legal Intern
FAMILY LAW CLINIC
45 North Pitt Street
Carlisle, P A 17013
717-243-2968
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