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HomeMy WebLinkAbout06-5953JOYCE MATTSON & GENE MATTSON, Plaintiffs vs. HEATHER R. MATTSON, Defendant IN THE COURT OF COMMON PLEAS I OF CUMBERLAND COUNtY, PENNSYLVANIA CIVIL ACTION - LAW NO. 0 (,o - E q S" 3 IN CUSTODY PETITION FOR CUSTODY AND NOW come the above-named Plaintiffs, by their attorney, Samuel L. Andes, and petition the court to set a schedule for them to have periods of temporary or partial custody of their granddaughter, based upon the following: 1. The Plaintiffs are Joyce Mattson and Gene Mattson, husband and wife, who reside at 600 Charles Street in Mechanicsburg, Cumberland County, Pennsylvania. 2. The Defendant is Heather R. Mattson an adult individual who resides at 2016 Milltown Road in Camp Hill, Cumberland County, Pennsylvania. 3. Plaintiffs are the parents of Todd G. Mattson, who is the husband of the Plaintiff. Todd Mattson is currently incarcerated by the Pennsylvania DeOartment of Corrections as a result of a criminal prosecution in Cumberland County, Pennsylvania, for solicitation to commit murder of the Defendant, Heather R. Mattson. 4. Todd G. Mattson and the Defendant Heather R. Mattson are the parents of one minor child, Margarette Rae Mattson, also known as Maggie Rae Mattson, now age 5, born 20 October 2000. The Plaintiffs are the paternal grandparents of 1ljlargarette Rae Mattson. 5. Prior to the criminal prosecution of Todd G. Mattson` Plaintiffs saw their granddaughter on a regular basis and developed a close grandpjarent relationship with the child. Now that the child's father is separated from the child's mother and he is not available to spend time with or have periods of custody of the child, Plaintiffs wish to have periods of temporary custody to maintain and foster their relationship with the child. 6. Todd G. Mattson is currently not available to have periods of temporary custody for the child but Plaintiffs believe that the child can visit him in prison during his incarceration. They would like to have the opportunity to take l the child to see her father so as to maintain a reasonable parent-child relationship. 7. The law of Pennsylvania, permits Plaintiffs to have periods of temporary custody, both for purposes of maintaining their relationship with the child when the child's parents are separated and, to permit Plaintiffs to arrange visits between !the child and Todd G. Mattson to maintain their relationship. 8. Since the child's birth, the child has resided at the following addresses with the following persons: October 2002 to October 2005 2016 Milltown Road Heather R. Mattson Camp Hill, PA 17011 & Todd Mattson October 2005 to present 2016 Milltown Road Heather R. Mattson Camp Hill, PA 17011 9. There are no prior actions involving the child with regard to custody, temporary custody, or visitation. Plaintiffs are aware of no persons other than themselves, the Defendant Heather R. Mattson, and their son Todd Mattson, who claim or have any parental or other custodial rights regarding the child. 10. The child currently resides with the Defendant Heather R. Mattson at 2016 Milltown Road in Camp Hill, Pennsylvania. To the knowledge of Plaintiffs, there are no other residents in or occupants of that property. 11. Plaintiffs reside at 600 Charles Street in Mechanicsburg. No other persons reside in their home with them. 12. Plaintiffs seek an award of temporary or partial custody of the child. They believe such an award would be in the best interest of the child for the following reasons: A. The child has always had a close, effectuate, and beneficial relationship with the Plaintiffs and such an award would allow that relationship to continue; and B. Granting the relief requested by the Plaintiffs would allow the child to maintain a close and healthy relationship with the child's father's extended family; and C. Granting the relief requested in this petition would permit Plaintiffs to foster a continuing relationship between the child and his father so that, when Todd Mattson is released from incarceration, the restoration of his custodial rights regarding the child will be accomplished with less disruption and confusion. WHEREFORE, Plaintiffs pray this court to enter an order granting them reasonable periods of temporary custody with the child, including vacations, holidays, alternating weekends, and evenings during the week so they can both maintain a close relationship with the child and arrange for the child to visit her father. Samuel L. Andes Attorney for Plaintiffs Supreme Court ID # 17225 525 North 12t` Street Lemoyne, Pa 17043 (717) 761-5361 i I verify that the statements made in this document are true and correct. I understand that any false statements in this document are subject to the penalties of 18 Pa. C.S. 4904 (unsworn falsification to authorities). Date: Qc? J C ATTSON ' y //l/!Ir4 JOYCE MATTSON & GENE MATTSON IN THE COURT OF COMMON; PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PEI NSYLVANIA V. 06-5953 CIVIL ACTION L W HEATHER R. MATTSON i DEFENDANT IN CUSTODY ORDER OF COURT AND NOW, Friday, October 20, 2006 , upon consideration f the attached Complaint, it is hereby directed that parties and their respective counsel appear before Melissa P. Greevy, Esq. , the conciliator, at MDJ Manlove, 1901 State St., Camp Hill, PA 17011 on Wednesday, Novem er 15, 2006 at 10:30 AM for a Pre-Hearing Custody Conference. At such conference, an effort will be made to esolve the issues in dispute; or if this cannot be accomplished, to define and narrow the issues to be heard by the cour , and to enter into a temporary order. All children age five or older may also be present at the conference. Failure to 'appear at the conference may provide grounds for entry of a temporary or permanent order. The court hereby directs the parties to furnish any and all existing Protection from Abuse orders, Special Relief orders, and Custody orders to the conciliator 48 hours prior to scheduled hearing. FOR THE COURT. By: /s/ Melissa P. Gree 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 re ?sonable accommodations available to disabled individuals having business before the court, please eonta t 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. j YOU SHOULD TAKE THIS PAPER TO YOUR ATTORNEY AT HAVE AN ATTORNEY OR CANNOT AFFORD ONE, GO TO OR TELEPF FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Associatior 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 CE. IF YOU DO NOT lE THE OFFICE SET ,?G? l?`` f 1 ?7+?t? ?? r? `•f ilte -i Ll AO 1 SHERIFF'S RETURN - REGULAR CASE NO: 2006-05953 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MATTSON JOYCE ET AL VS MATTSON HEATHER R DAVID MCKINNEY Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within PETITION - CUSTODY was served upon MaTT.gnm NFaTW7P R the RESPONDANT , at 1910:00 HOURS, on the 25th day of October-, 2006 at 2016 MILLTOWN ROAD CAMP HILL, PA 17011 by handing to HEATHER R MATTSON a true and attested copy of PETITION - CUSTODY together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: So Answers: Docketing Service 18.00 13.20 Postage .39 Surcharge 10.00 R. Thomas Kline .00 41.59 10/26/2006 ( / l /x9101, SAMUEL ANDES Sworn and Subscibed to By: y? 1 before me this day Deputy Sheriff of A. D. Nov 3 0 20M JOYCE MATTSON and IN THE COURT OF COMMON PLEAS OF GENE MATTSON, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs NO. 06-59153 CIVIL TERM V. CIVIL ACTION - LAW HEATHER R. MATTSON, IN CUSTODY Defendant ORDER OF COURT , 2006, upon consideration AND NOW, this 4 day of Lu-jolmAPA,1? of the attached Custody Conciliation Summary Report, it is hereby ordered and directed as follows: 1. A hearing is scheduled in Courtroom Number of the Cumberland County a 200'L_, at P'36 o'clock Courthouse, on the noC day of ! ? 2tit, Z.M., at which time testimony will be taken. For the purposes of the hearing, the paternal grandparents, Joyce Mattson and Gene Mattson, shall be deemed to be the moving party and shall proceed initially with testimony. Counsel for the parties or the parties pro se shall file with the Court and opposing counsel/party a memorandum setting forth each party's position on custody, a list of exhibits, a list of witnesses who are expected to testify at the hearing, and a summary of the anticipated testimony of each witness. These memoranda, lists of exhibits, lists of witnesses and summaries of anticipated testimony of each witness shall be filed at least twenty days prior to the hearing date. BY THE COURT: ?4,4 J. Dist: Samuel L. Andes, Esquire, P. O. Box 168, Lem /yvne, 17043 n , J. Paul Helvy, Esquire, P. O. Box 1166, Harrisburg, PA 17108-1166 /? ,ylu_a x C_. '' 1 .01'" 1-- `-0 ,!U1 JOYCE MATTSON and GENE MATTSON, Plaintiffs V. HEATHER R. MATTSON, Defendant Nov 3 0 200 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-5953 CIVIL TERM : CIVIL ACTION - LAW IN CUSTODY CUSTODY CONCILIATION SUMMARY REPORT IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE 1915.3-8, the undersigned Custody Conciliator submits the following report: 1. The pertinent information concerning the child who is the subject of this litigation is as follows: NAME DATE OF BIRTH Margaretta Rae Mattson October 20, 2000 CURRENTLY It! THE CUSTODY OF Mother 2. The paternal grandparents filed a Petition for Custody on October 11, 2006. A Custody Conciliation Conference was held on November 15, 2006, with the following individuals in attendance: the paternal grandparents, Joyce Mattson and Gene Mattson, and their counsel, Samuel L. Andes, Esquire; the mother, Heather R. Mattson, and her counsel, J. Paul Helvy, Esquire. The biological father did not attend, as he is presently incarcerated in a state correctional facility. 3. The paternal grandparents' position on custody i§ as follows: Paternal grandparents claimed that they had regular contact with the child 'several times per week, and at least one overnight a week, until their son was prosecuted for solicitation of murder. The person that he was convicted of soliciting murder for was the child's mother. The paternal grandparents want the child to maintain a relationship with her father and plan to take the child to Fayette State Correctional Facility to visit her father. This facility is located in Uniontown, Pennsylvania, approximately a three (3) hours drive from Petitioner's home in Mechanicsburg. The paternal grandparents want Father to continue to be able to see the child so that after his period of incarceration is over, resumption of his relationship with the child will be less disruptive to her. In the meantime, they seek partial custody on alternating weekends, evenings during the week, vacation and holidays. The paternal grandparents have had one contact with the child since Father was arrested on October 2, 2005. He was incarcerated locally until September of 2006, when he was sentenced by Judge Hess to four (4) years in a state NO. 06-5953 CIVIL TERM correctional facility. He was first placed in During that time he was not permitted visitors on New Year's Eve, 2005. SCI/Camp Hill for purposes of classification. The paternal grandparents last saw the child 4. Mother's position on custody is as follows: Mother acknowledges that there was one visit on New Year's Eve, 2005, for approximately two hours, during which time the six year old child had an opportunity to visit with her paternal grandparents and cousins at the paternal grandparents' residence. She describes the relationship between the child and the paternal grandparents as a typical grandparent-family context, with some occasional overnights. However, Mother acknowledges that because of her work hours, which were largely in the evening, she may not have been aware of all the contact that the child had with the paternal grandparents. She alleges that Father would sometimes drop the child off with the paternal grandparents when she was at work. Mother does not want the paternal grandparents to have anything to do with her daughter. Mother remains concerned that Father will try to kill her again. She also sees Father as a continuing threat to the parties' child, and therefore will not agree to any contact between the paternal grandparents and the child. Mother relates that the child is aware that Father tried to hire someone to kill her. Therefore, she would see forced contact between the child and Father as a source of great emotional distress. She also relates that the child expressed concern about where Father was when he was incarcerated. She was concerned about how close by he was at the time, and whether he could get out. 5. Because the parties have not reached have no agreement with regard to the paternal relationship between the child and her father, a requests one-half day for this matter. The custody rr to a judge. Father's sentencing judge was Judge He? Date an agreement as to any contact, and grandparents' desire to facilitate the hearing will be necessary. Counsel after has not previously been assigned Melissa Peel Gr vy, Esquire Custody Concil' for 287352 McNEES WALLACE & NURICK LLC By: J. Paul Helvy Attorney ID No. 53148 100 Pine Street Harrisburg, PA 17108-1166 (717) 232-8000 (717) 237-5300 facsimile phelvy cD-mwn.com Attorney for Plaintiff JOYCE MATTSON AND GENE MATTSON, Plaintiffs/Respondents V. HEATHER R. MATTSON, Defendant/Petitioner IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA (N-0 NO. od-5953 IN CUSTODY PETITION FOR APPOINTMENT OF A CUSTODY EVALUATOR AND NOW COMES Petitioner, Heather R. Mattson, by and through her attorneys, McNees Wallace & Nurick LLC, and files this Petition for the appointment of a custody evaluator and, in support thereof, avers as follows: 1. Petitioner, Heather R. Mattson ("Mother"), is an adult individual residing at 2016 Milltown Road, Camp Hill, Cumberland County, Pennsylvania. 2. Respondents, Joyce Mattson and Gene Mattson ("Grandparents"), are adult individuals residing at 600 Charles Street, Mechanicsburg, Cumberland County, Pennsylvania. 3. Respondent Grandparents are the parents of Todd G. Mattson ("Father"), who is currently incarcerated as a result of a criminal prosecution in Cumberland County, Pennsylvania, for the solicitation to commit murder of Mother. s' 4. Mother and Father are the parents of one minor child, Margarette Rae Mattson, also known as Maggie Rae Mattson, born October 20, 2000. 5. On October 11, 2006, Respondent Grandparents filed a Petition for Custody to the above captioned number. 6. Respondent Grandparents' Petition requested that the Court enter an Order granting them reasonable periods of temporary custody with the minor child in order to: A. Maintain a close relationship with the minor child; and B. Arrange for the minor child to visit Father. 7. On November 15, 2006, the parties attended a pre-hearing custody conference in front of Custody Conciliator, Melissa P. Greevy, Esquire. 8. During the conciliation, it was made clear that should Respondent Grandparents receive custody, they plan to take the minor child to visit Father in prison, in addition to having regular visits with the minor child. 9. Petitioner does not believe that having the minor child visit Father in prison is in the best interests of the child. 10. Further, a Protection From Abuse Final Order of Court dated January 9, 2006 precludes Father from having any contact with the minor child until July 5, 2007. 11. Petitioner has serious concerns regarding the impact visitation with Grandparents will have on the child in light of their continued insistence that Father was an innocent victim and their position that the child should be forced to go to prison to see the man who attempted to have her mother killed. Petitioner believes that it is in -2- the child's best interests that a custody evaluation be performed so that the parties and the Court will have the benefit of the recommendation of a psychologist regarding the Grandparents requests. 12. Petitioner suggests that the custody evaluation be performed by either Deborah Salem of Interworks or Dr. Arnold T. Shienvold of Riegler Shienvold & Associates, both of whom have significant experience. 13. As Respondent Grandparents' Petition for Custody has raised significant issues, Petitioner respectfully requests that Respondents be required to pay 100% of the costs associated with the custody evaluation, as the evaluation is necessitated by the position they have taken on this matter. WHEREFORE, Petitioner requests this Honorable Court to enter an Order appointing a custody evaluator and requiring Grandparents to be responsible for the costs associated with said evaluation. Respectfully submitted, McNEES WALLACE & NURICK LLC By J. P u elvy, Esquir 1.0. #53148 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 (717) 237-5300 (fax) Attorneys for Defendant/Petitioner Dated: December 6, 2006 -3- VERIFICATION I verify that the statements made in the foregoing document 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. He ther R. Mattson Dated: (a C? (?,?° CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first-class mail upon the following: Samuel L. Andes, Esquire 525 North 12th Street P.O. Box 168 Lemoyne, PA 17043 Michele Beery, Secre Dated: December 6, 2006 JOYCE MATTSON AND GENE MATTSON IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. HEATHER R. MATTSON DFFFNDANT 06-5953 CIVIL ACTION LAW IN CUSTODY ORDER OF COURT AND NOW, Wednesday, December 13, 2006 upon consideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear before Melissa P. Greevy, Esq. the conciliator, at_ MDJ Manlove, 1901 State St., Camp_Hill, PA 17011 on Friday, January 12, 2007 at 9:00 AM for a Pre-Hearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute; or if this cannot be accomplished, to define and narrow the issues to be heard by the court, and to enter into a temporary order. All children age five or older may also be present at the conference. Failure to appear at the conference may provide grounds for entry of a temporary or permanent order. The court hereby directs the parties to furnish any and all existing Protection from Abuse orders, Special Relief orders, and Custody orders to the conciliator 48 hours prior to scheduled hearing. FOR THE COURT, By: /s/ Melissa P. Gree Es q. Custody Conciliator The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilites Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. YOU SHOULD TAKE THIS PAPER TO YOUR ATTORNEY AT ONCE. IF YOU DO NOT HAVE AN ATTORNEY OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 ?? ?? ? ?? ??? S. .. ? ? ? 3 ... . .... ... .. '? 1 .?,. ... ??` JOYCE MATTSON & GENE MATTSON, Plaintiffs VS. HEATHER R. MATTSON, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 010 -5953 NO. a- 9-IN CUSTODY PLAINTIFF'S ANSWER TO PETITION FOR APPOINTMENT OF CUSTODY EVALUATOR AND NOW come the above-named Plaintiffs by their attorney, Samuel L. Andes, and answer the Defendant's Petition as follows: 1 through 5. Admitted. 6. Admitted in part and denied in part. Plaintiffs' primary goal in filing the petition is to maintain a close family time with their granddaughter, who is the subject of this litigation. They have indicated that they believe it is in the child's best interest to maintain some custodial contact with her father and that, if appropriate, they would like to arrange for her to see her father during his incarceration. The Plaintiffs have indicated, however, that they will not do so without either the consent of the Defendant or authorization from this court. 7. Admitted. 8. Denied. Plaintiffs' position at the conciliation conference was made clear that, although they desired to arrange for the child to see her father, they would do so only if appropriate for the child under the circumstances and only do so with the authority of the court or the consent of the Defendant. 9. Admitted. However, Plaintiffs believe that the mother's attitude here is unrealistic and unfair to the child. The child's father has been sentenced to a finite term of imprisonment and will be released from prison while the child is still a minor. At that time he will have every right to maintain his relationship with the child. Plaintiffs believe it will be in the best interest of the child to have some continuing contact with her father between A now and that time so that the adjustment to reestablishing custodial contact with her father will be as easy on the child as possible. 10. Admitted. However, Plaintiffs have made it clear that they will only arrange contact between the child and her father with the authority and consent of this court or the Defendant. 11. Plaintiffs admit that those are the mother's claims but denies that they are accurate or well-founded. Plaintiffs also agree that the involvement of a psychologist or other professional to advise the court as to the proper disposition of this matter will be beneficial although they do not believe a formal custody evaluation, which is intended to determine which parent should have custody of the child, is appropriate. 12. Plaintiffs admit that that is what mother wants but believes it is in the best interest of the child that the court appoint a psychologist or other professional to advise the court as the best way to resolve this matter, keeping in mind that the issue presently before this court is only the Plaintiffs' desire to have periods of temporary custody with their granddaughter. 13. Denied. The issues in this case are not complicated. Plaintiffs believe that all parties will benefit from the involvement of a psychologist or other expert to advise the court and that, therefore, the parties should share equally in the cost of such expert. WHEREFORE, Plaintiffs pray this court to deny Defendant's Petition, to appoint an independent psychologist or other expert to meet with the parties and the child to be able to advise the court, if necessary, as to whether the Plaintiffs should have periods of temporary custody of their granddaughter, and to direct that the cost of such expert be shared equally by the parties. amuel L. ?Uides Attorney for Plaintiffs Supreme Court ID # 17225 525 North 12th Street Lemoyne, Pa 17043 (717) 761-5361 A I verify that the statements made in this document are true and correct. I understand that any false statements in this document are subject to the penalties of 18 Pa. C.S. 4904 (unsworn falsification to authorities). Date: a J C ATTSON I verify that the statements made in this document are true and correct. I understand that any false statements in this document are subject to the penalties of 18 Pa. C.S. 4904 (unsworn falsification to authorities). Date: t 2 Zo - c?o d GENE MATTSON • CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing document upon counsel for the Defendant by regular mail, postage prepaid, addressed as follows: J. Paul Helvy, Esquire 218 Pine Street P.O. Box 886 Harrisburg, PA 17108-0886 Date: 27 December 2006 Amy M arkins Secretary for Samuel L. Andes JAN 12 2007 JOYCE MATTSON and IN THE COURT OF COMMON PLEAS OF GENE MATTSON, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs NO. 06-5953 CIVIL TERM V. CIVIL ACTION - LAW HEATHER R. MATTSON, IN CUSTODY Defendant Hess, J. - - ORDER OF COURT AND NOW, this 16-4 day of January, 2007, upon consideration of the attached Custody Conciliation Summary Report, it is hereby ordered and directed as follows: 1. A hearing is scheduled in Cou room Number _ of the Cumberland County Courthouse, on the /50 day of , 2007, at 9% 30 o'clock A_.M., at which time testimony will be taken. For the purposes of the hearing, the Mother, Heather Mattson, shall be deemed to be the moving party and shall proceed initially with testimony. Counsel for the parties or the parties pro se shall file with the Court and opposing counsel/party a memorandum setting forth each party's position on the evaluation and its costs, a list of exhibits, a list of witnesses who are expected to testify at the hearing, and a summary of the anticipated testimony of each witness. These memoranda, lists of exhibits, lists of witnesses and summaries of anticipated testimony of each witness shall be filed at least twenty days prior to the hearing date. BY THE COURT: in A. Hess, J. Dist: Samuel L. Andes, Esquire, P. O. Box 168, Ldmoyne, PA 17043 J. Paul Helvy, Esquire, P. O. Box 1166, Harrisburg, PA 17108-1166 `?5 c_ JOYCE MATTSON and GENE MATTSON, Plaintiffs V. HEATHER R. MATTSON, Defendant Hess, J. - - JAN 12 2DD7 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-5953 CIVIL TERM CIVIL ACTION - LAW IN CUSTODY ORDER OF COURT AND NOW, this day of January, 2007, upon consideration of the attached Custody Conciliation Summary Report, it is hereby ordered and directed as follows: 1. It is hereby ordered that is appointed as a custody evaluator. It is further ordered that the parties cooperate therein. Respondent shall bear % of this custody evaluation. Petitioner shall bear % of this custody evaluation. BY THE COURT: Kevin A. Hess, J. Dist: Samuel L. Andes, Esquire, P. O. Box 168, Lemoyne, PA 17043 J. Paul Helvy, Esquire, P. O. Box 1166, Harrisburg, PA 17108-1166 AN .%^ JOYCE MATTSON and GENE MATTSON, Plaintiffs V. HEATHER R. MATTSON, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-5953 CIVIL TERM CIVIL ACTION - LAW IN CUSTODY CUSTODY CONCILIATION SUMMARY REPORT IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE 1915.3-8, the undersigned Custody Conciliator submits the following report: 1. The pertinent information concerning the child who is the subject of this litigation is as follows: NAME DATE OF BIRTH CURRENTLY IN THE CUSTODY OF Margaretta Rae Mattson October 20, 2000 Mother 2. The Defendant/Petitioner filed a Petition for Appointment of a Custody Conciliator on or about December 6, 2006. The Court referred the matter to Custody Conciliation which was scheduled for January 12, 2007. Inasmuch as the parties attended Conciliation on November 15, 2006, and because the Counsel and the Conciliator had discussed the possibility of an evaluation or input from a child specialist at the Conciliation, the Conciliator had a telephone conference with Counsel on December 18, 2006. Participating in the conference were: Counsel for the paternal grandparents, Samuel L. Andes, Esquire; Counsel for the Mother, J. Paul Helvy, Esquire. 3. Counsel agreed that the Conciliator would contact a local custody evaluator and child specialist with regard to the types of services available in the context of this matter. After obtaining the information from both professional resources regarding the types of services that would be needed to answer the referral questions, the Conciliator relayed the information to Counsel, who asked that the matter be scheduled for hearing without further conciliation. The Conciliator concurs in this request. 4. Mother's position with regard to the appointment of a custody evaluator is as follows: Mother believes that it is not in the child's best interest for the paternal grandparents to visit the minor child. She also has serious concerns regarding the impact visitation with ' , K the paternal grandparents have consistently portrayed Father as an innocent victim in his criminal prosecution for solicitation to commit murder of the child's Mother. Mother also objects to the notion that the child should go to prison to visit the man who pled guilty to solicitation of her murder, and believes that a full custody evaluation is appropriate so that the parties and the Court will have the benefit of the recommendation of the psychologist regarding the grandparents' request. Though Counsel, Mother asks that an evaluation be performed by either Deborah Salem of Interworks or Dr. Arnold T. Sheinvold of Riegler Sheinvold and Associates. Mother further asks that because the Respondent grandparents' Petition has raised these issues, that they be required to pay all of the cost of the evaluation. 5. The paternal grandparents' position is as follows: Counsel for the paternal grandparents is concerned about delay and the expense of a full evaluation and does not believe that it is appropriate. Because the paternal grandparents are not seeking primary physical custody, and are not seeking to have the child reside in their home, it is Counsel's position that because the paternal grandparents only want to resume the relationship they had previously with their granddaughter, a full evaluation is unwarranted. However, he acknowledges the need for professional psychological services to make recommendations in this matter, 6. Because the parties do not have an agreement with regard to the scope of the evaluative services in this matter, and no agreement on the cost of any services that may be provided, the parties are in need of hearing. The evaluator would need to make recommendations regarding the child's best interest as it relates to an ongoing relationship with the paternal grandparents, who clearly see their son as far less culpable and threatening as does Mother, and whether it is in the child's best interest to visit her father during his period of incarceration, particularly in light of his having pled guilty to the solicitation for Mother's murder. Both evaluators find that a full evaluation would be necessary in order for them to properly advise the Court on these topics. The Conciliator recommends that a full evaluation be completed and refers the matter for the Court's disposition as to the allocation of cost for such evaluation. The Conciliator expects that this matter can be heard by the Court in tw urs or less. Date Melissa Peel Greevy, Esquire Custody Conciliator :289749 McNEES WALLACE & NURICK LLC By: J. Paul Helvy Attorney ID No. 53148 100 Pine Street Harrisburg, PA 17108-1166 (717) 232-8000 (717) 237-5300 facsimile phelvy@mwn.com Attorney for Defendant JOYCE MATTSON AND GENE MATTSON, Plaintiffs/Respondents IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. HEATHER R. MATTSON, Defendant/Petitioner NO. 06-5953 IN CUSTODY DEFENDANT'S MOTION FOR SPECIAL RELIEF IN THE FORM OF AN ORDER TO DISMISS PLAINTIFFS' PETITION Pursuant to Pa. R. Civ. P. 1915.4(e) and 1915.13 Defendant, Heather Mattson, by and through her counsel, McNees Wallace & Nurick, moves this Court for the Special Relief of an Order dismissing Plaintiffs' Petition for Custody as follows: Plaintiffs commenced this action on October 11, 2006 by filing a Petition for Custody against Defendant, Heather Mattson ("Mother"). 2. In their Petition, Plaintiffs sought an award of temporary or partial custody of Margarette Rae Mattson ("Maggie") to which they claim entitlement because Maggie's parents, Plaintiffs' son and Mother, are separated. 3. In 2005, Mother filed for divorce after the Plaintiffs' son solicited another party to murder her. Plaintiffs' son was convicted and incarcerated for this crime. Divorce proceedings are still pending. 4. Pa. R.C.P. 1915.13 empowers this court to provide Special Relief where appropriate at any time after commencement of a custody proceeding. 5. Plaintiffs' Petition for Custody should be dismissed because Plaintiffs lack standing to petition this court for custody of Mother's child Maggie. 6. Plaintiffs' only ability to bring this action is based on 23 Pa.C.S.A. § 5312 which provides in part: § 5312. When parents' marriage is dissolved or parents are separated. In all proceedings for dissolution, subsequent to the commencement of the proceeding and continuing thereafter or when parents have been separated for six months or more, the court may, upon application of the parent or grandparent of a party, grant reasonable partial custody or visitation rights, or both, to the unmarried child .... 7. 23 Pa.C.S.A. § 5312 violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. See, Schmuehl v. Wegelin, 76 Pa. D. & C. 4th 569, 571 (CCP Berks, 2004). 8. 23 Pa.C.S.A. § 5312 impermissibly treats parents who live apart differently than parents who live together. 9. Plaintiffs' Petition for Custody should be dismissed because 23 Pa. C.S.A. § 5312, which is Plaintiffs' only source for standing, is invalid. WHEREFORE, Defendant Heather Mattson requests that this Court provide Special Relief pursuant to Pa. R.C.P. 1915.4(e) and 1915.13 by ORDER to DISMISS Plaintiffs' Petition because Plaintiffs lack standing to petition this Court for custody of Mother's child. Respectfully submitted, McNEES WALLACE & NURICK LLC By J. Kul He y, E uire 1. 8 100 Pine Stre t P.O. Box 116 Harrisburg, PA 17108- 66 (717) 232-8000 (717) 237-5300 (fax) Attorneys for Defendant/Petitioner Dated: April 11, 2007 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served upon the following: Via facsimile and Regular Mail: Samuel L. Andes, Esquire 525 North 12th Street P.O. Box 168 Lemoyne, PA 17043 Via Certified Mail, Return Receipt Requested: Attorney General Commonwealth of Pennsylvania Thomas Corbett 16th Floor Strawberry Square Harrisburg, PA 17120 *icellermour, ecretary to J. Paul Helvy Dated: Ay U J T- . ..y w McNEES WALLACE & NURICK LLC By: J. Paul Helvy Attorney ID No. 53148 100 Pine Street Harrisburg, PA 17108-1166 (717) 232-8000 (717) 237-5300 facsimile phelvy@mwn.com Attorney for Defendant JOYCE MATTSON AND GENE MATTSON, Plaintiffs/Respondents V. HEATHER R. MATTSON, Defendant/Petitioner IN CUSTODY DEFENDANT'S AMENDMENT TO DEFENDANT'S MOTION FOR SPECIAL RELIEF IN THE FORM OF AN ORDER TO DISMISS PLAINTIFFS' PETITION Defendant, Heather R. Mattson, by and through her counsel, McNees Wallace & Nurick, hereby files this Amendment to Defendant's Motion for Special Relief in the form of an Order to Dismiss Plaintiffs Petition and in support thereof, pursuant to Cumberland County Local Rule 208.3(a), avers as follows: 1. Defendant's Motion for Special Relief in the Form of an Order to Dismiss Plaintiffs Petition is incorporated herein by reference. 2. The Honorable Kevin A. Hess has ruled as follows in this matter: a. Order of Court Scheduling Custody Hearing, dated December 4, 2006 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-5953 and filed on December 5, 2006. b. Order of Court Scheduling Custody Hearing, dated and filed on January 16, 2007. C. Order of Court granting joint motion of counsel to seal the record, dated March 14, 2007. 3. By way of facsimile and mail, dated April 11, 2007, Defendant's counsel disclosed the full text of the Defendant's Motion for Special Relief in the form of an Order to Dismiss Plaintiffs Petition to Plaintiffs counsel. By way of letter dated April 25, 2007, Defendant's counsel also disclosed the full text of this amendment to Defendant's motion to Plaintiffs counsel by way of facsimile and first class mail. To date, Plaintiffs counsel has failed to respond to Defendant's counsel's inquiry regarding concurrence to Defendant's Motion for Special Relief, proposed Order and Defendant's Amendment to said Motion. WHEREFORE, Defendant Heather Mattson requests that this Court provide Special Relief pursuant to Pa. R.C.P. 1915.4(e) and 1915.13 by ORDER to DISMISS Plaintiffs' Petition because Plaintiffs lack standing to petition this Court for custody of Mother's child. Respectfully submitted, McNEES WALLACE & NURICK LLC By J/Paul Helvy, E rt f.D. #53148 100 Pin et P.O. 1166 Harrisburg, PA 17108-1166 (717) 232-8000 (717) 237-5300 (fax) Attorneys for Defendant/Petitioner Dated: April 30, 2007 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served upon the following: Via facsimile and Regular Mail: Samuel L. Andes, Esquire 525 North 12th Street P.O. Box 168 Lemoyne, PA 17043 Via Certified Mail, Return Receipt Requested: Attorney General Commonwealth of Pennsylvania Thomas Corbett 16th Floor Strawberry Square Harrisburg, PA 17120 is elle Armour, ecretary to J. Paul Helvy Dated: April 30, 2007 C) cN-? O -TI -71 M L y\ rn __ ca CD CD --<< JOYCE MATTSON & GENE MATTSON, Plaintiffs vs. HEATHER R. MATTSON, Defendant NOTICE TO DEFENDANT NAMED HEREIN: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 06-5953 IN CUSTODY YOU ARE HEREBY NOTIFIED TO RESPOND TO THE ENCLOSED ANSWER AND NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A DEFAULT JUDGMENT MAY BE ENTERED AGAINST YOU. r??r\A2G.fl 14- L. An s Attorney for Plaintiffs Supreme Court ID 17225 P.O. Box 168 Lemoyne, PA 17043 (717) 761-5361 JOYCE MATTSON & GENE MATTSON, ) Plaintiffs ) VS. ) HEATHER R. MATTSON, ) Defendant ) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 04-5953 IN CUSTODY PLAINTIFFS' ANSWER TO DEFENDANT'S MOTION FOR SPECIAL RELIEF AND NOW come the above-named Plaintiffs, by their attorney, Samuel L. Andes, and make the following Answer to Defendant's Motion for Special Relief: 1. Admitted. 2. Admitted. By way of further answer, however, Plaintiffs state that they claim to be entitled to periods of temporary custody with their granddaughter because of a long-standing and close relationship with her before the prosecution of their son. Plaintiffs incorporate herein by reference those averments in their original complaint. 3. Admitted. 4. Denied as stated. Plaintiffs acknowledge that Pa. R.C.P. 1915.3 empowers the court to grant special relief but Plaintiffs deny that rule controls the process or the situation here. Pa. R.C.P. 1915.13 provides only as follows: At any time after commencement of the action, the court may on application or its own motion grant appropriate interim or special relief. The relief may include but is not limited to the award of temporary custody, partial custody or visitation; -1- the issuance of appropriate process directing that a child or a party or person having physical custody of a child be brought before the court; and a direction that a person post security to appear with the child when directed by the court or to comply with any order of the court. This rule does not control the procedure to be followed when a party challenges another party's capacity to sue or "standing." Objections to standing or a challenge to a party's capacity to sue are controlled by Pa. R.C.P. 1028 which allows a parry to raise, as a preliminary objection to a pleading, lack of capacity to sue. Further, Pa. R.C.P. 1032 provides that a party "waives all defenses and objections which are not presented either by preliminary objection, answer or reply..." with some exceptions which do not apply to this case. Defendant has not filed preliminary objections or any pleading and the time for her to file such matters has long passed. As a result, Defendant has waived her right to raise the issue of capacity to sue now pursuant to the provisions of Pa. R.C.P. 1032. 5. Denied for the reasons set forth in the answer to Paragraph 4 above. 6. Denied as stated. Plaintiffs bring this action on the basis of the statute cited in Defendant's motion and also on the basis of their long-standing and close personal relationship with the child and in the firm belief that a continuation of that relationship is in the best interests of the child. As a result, Plaintiffs have a common law right to seek continued custodial contact with their grandchild. -2- 7. Denied. Plaintiffs deny that the statutory section violates the constitution of the United States. By way of further answer, Plaintiffs state that Defendants have waived her right to raise this issue at the present time for the reason set forth in the answer to Paragraph 4 above. 8. Denied. The purpose of the cited section is to allow a family to maintain close ties with a child when the child's parent is absent. As such it does not improperly or impermissibly treat separated parents differently than parents residing together. 9. Denied for the reasons set forth above and in Plaintiffs' New Matter, the averments of which are incorporated herein by reference. WHEREFORE, Plaintiffs pray this Court to deny Defendant's motion and allow this matter to proceed. NEW MATTER By way of further response to Defendant's Motion for Special Relief, the Plaintiffs aver the following: 10. Plaintiffs' petition in this matter was filed on 11 October 2006. 11. Plaintiffs admit that the Honorable Kevin A. Hess has entered orders previously in this case. Plaintiffs also acknowledge that they do not consent to and, in fact, oppose Defendant's Motion for Special Relief. 12. Plaintiffs' petition was served upon the Defendant, by the Sheriff of Cumberland County, on 25 October 2006, by personal service. -3- 13. Since this matter was initiated, Defendant has actively and repeatedly participated in the matter. Her participation, together with that of her counsel, has included the following: A. She and her attorney attended a conciliation conference. The issue of standing and Defendant's claims about standing were not raised at that conference. B. Defendant filed a pre-hearing memorandum with the court. The present claims regarding standing were not raised in that pre-hearing statement. C. Defendant filed a petition for psychological evaluation. No claim of standing was raised in that petition. D. Defendant's counsel participated in a telephone conference with the trial judge in early March of 2007. At no time during that conference did Defendant's counsel raise his present claims regarding standing. 14. Defendant and her counsel participated in a hearing before the trial court on the Plaintiffs' petition for custody on 14 March 2007. At that hearing, for the first time, Defendant's counsel raised a verbal objection to the constitutionality of the statute under which this matter was then proceeding. 15. At no time in these proceedings did Defendant file preliminary objections to Plaintiffs petition. The time for filing such preliminary objections has now expired. 16. Defendant has not filed any answer, new matter, or other responsive pleading to Plaintiffs' petition for custody. Her time for doing so has now expired. -4- 17. Defendant has failed to raise her challenge to Plaintiffs' standing in accordance with the Rules of Civil Procedure. Accordingly, pursuant to Pa. R.C.P. 1032, she has waived, and forever lost, her right to raise that issue at this time. 18. The Pennsylvania Courts have previously ruled on the constitutionality of the statute which Defendant challenges in her Motion and have found the statute, and the application to grandparents, to be constitutional. Hiller vs. Fausev. 904 A2d 875 (Pa.; 2006). Recently the United States Supreme Court refused to review the decision of the Supreme Court of Pennsylvania upholding the constitutionality of the statute. Thus the claim made by Defendant in her Motion has previously been decided, adversely to Defendant's position, by all courts in a position to rule on such argument. WHEREFORE, Plaintiffs move this Court to dismiss Defendant's Motion for Special Relief and allow this matter to proceed in accordance with the Court's last order. 2 L. Andes Attorney for Plaintiffs Supreme Court ID # 17225 P.O. Box 168 Lemoyne, Pa 17043 (717) 761-5361 -5- CERTIFICATE OF SERVICE I hereby certify that on 30 April 2007 I served a copy of the foregoing document upon counsel of record by U.S. Mail, postage prepaid, addressed as follows: J. Paul Helvy, Esquire P.O. Box 1166 Harrisburg, PA 17108 Office of the Attorney General Commonwealth of Pennsylvania 16' Floor, Strawberry Square Harrisburg, PA 17120 amuel L. Andes Attorney for Plaintiffs Supreme Court ID 17225 P.O. Box 168 Lemoyne, PA 17043 -6- n t.}a Y JOYCE MATTSON AND GENE MATTSON, Plaintiffs vs. HEATHER R. MATTSON, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 06-5953 CIVIL : IN CUSTODY IN RE: APPOINTMENT OF PSYCHOLOGIST ORDER AND NOW, this 14th day of March, 2007, Dr. Stanley Schneider is appointed in this case to advise the court concerning whether or not it is in the child's best interests to reestablish any contact with her paternal grandparents and, if such contact is deemed appropriate, the mechanism by which it might be achieved. The costs associated with this appointment shall be paid by the plaintiffs. Continued hearing in this matter is set for Wednesday, August 1, 2007, at 1:30 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, amuel L. Andes, Esquire For the Plaintiffs /Paul Helvy, Esquire For the Defendant bg r??.?4t '?:;'E r ? I :z 144 c- LOOZ Ni JO McNEES WALLACE & NURICK LLC By: J. Paul Helvy Attorney ID No. 53148 Cheryl B. Krentzman Attorney ID No. 203463 100 Pine Street Harrisburg, PA 17108-1166 (717) 232-8000 (717) 237-5300 facsimile phelvy@mwn.com ckrentzman(aD-mwn.com JOYCE MATTSON and GENE MATTSON, Plaintiffs V. HEATHER R. MATTSON, Defendant Attorneys for Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA : NO. 06-5953 IN CUSTODY PROOF OF SERVICE Pursuant to Pa.R.C.P. No. 235, 1 hereby certify that a true and correct copy of the Motion for Special Relief in the above matter was served on the Attorney General of the Commonwealth of Pennsylvania, by certified mail, return receipt requested, on April 11, 2007. See Exhibit "A" attached. The Motion for Special Relief was received and signed for by the Attorney General of the Commonwealth of Pennsylvania on April 13, 2007. The original of the return receipt is attached hereto as Exhibit "B". McNEES WALLACE & NURICK, LLC By: Atq'1X 4-. Cl I B. Krentzma Dated: May 3, 2007 6;7 ' m CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served upon the following: Via facsimile and Regular Mail: Samuel L. Andes, Esquire 525 North 12th Street P.O. Box 168 Lemoyne, PA 17043 Via Certified Mail, Return Receipt Requested: Attorney General Commonwealth of Pennsylvania Thomas Corbett 16th Floor Strawberry Square Harrisburg, PA 17120 Xicelle Armour, ecretary to J. Paul Helvy Dated: 4?x // o? -;?- 7160 3901 9648 7M2 3797 TO: Attorney General Thomas Corbett Commonwealth of Pennsylvania 16th Floor Strawberry Square Harrisburg, PA 17120 SENDER: J. Paul Helvy REFERENCE: MattsonZ4167-2 RECEIPT SERVICE ified Fee RETURN rmricted age rn Receipt Fee Delivery Postage & F US Postal Service Receipt for Certified Mail No Insurance Coverage Provided Do Not Use for International Mail RC -I r P0 AWIFIDA2007 m Q .?? ?yV ??? 71660 M %4A 73M 37W A Attorney General Thomas Corbett Commonwealth of Pennsylvania 16th Floor Strawberry Square Harrisburg, PA 17120 PS Form 3811, Mattson -4167-2 4"+ McNEES WALLACE & NURICK LLC By: J. Paul Helvy Attorney ID No. 53148 Cheryl B. Krentzman Attorney ID No. 203463 100 Pine Street Harrisburg, PA 17108-1166 (717) 232-8000 (717) 237-5300 facsimile phelvy@mwn.com ckrentzmanCa)_mwn.com JOYCE MATTSON and GENE MATTSON, Plaintiffs V. HEATHER R. MATTSON, Defendant Attorneys for Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 06-5953 IN CUSTODY PROOF OF SERVICE Pursuant to Pa.R.C.P. No. 235, 1 hereby certify that a true and correct copy of the Memorandum of Law filed in the above matter was served on the Attorney General of the Commonwealth of Pennsylvania, by certified mail, return receipt requested, on April 5, 2007. See cover letter and certified mail receipt attached hereto as Exhibit "A." The Memorandum of Law was received and signed for by the Attorney General of the Commonwealth of Pennsylvania on April 9, 2007. The original of the return receipt is attached hereto as Exhibit "B". McNEES WALLACE & NURICK, LLC By: C/t4d ? Che4B. Krentzman Dated: May 10, 2007 71 0 3901 9848 7302 3M TO: Attorney General Commonwealth of Pennsylvania Thomas Corbett 16th Floor Strawberry Square Harrisburg, PA 17120 SENDER: 283 REFERENCE: 24167-0002 Mattson RETURN Postage RECEIPT Certified Fee SERVICE Return Receipt Fee z 42 19 Restricted Delivery Total Postaoe & Fees US Postal Service POs R DATE1 Receipt for , fcc rO°C?? Certified Mail No Insurance Coverage Provided I Do Not Use for International Mall EXHIBIT A N - McNees Wallace & Nurick LLc attorneys at law J. PAUL HELVY DIRECT DIAL: (717) 237-5343 E-MAIL ADDRESS: PHELVY@MWN.COM April 3, 2007 VIA CERTIFIED MAIL RETURN RECEIPT REQUESTED Attorney General Commonwealth of Pennsylvania Thomas Corbett 16th Floor Strawberry Square Harrisburg, PA 17120 RE: Mattson v. Mattson Our File 24167-2 Dear Attorney General Corbett: The purpose of this letter is to comply with Pa. R.C.P. No 235 which requires notice to the Attorney General's office upon challenge to the constitutionality of an Act of Assembly. Enclosed you will find a copy of the memorandum in which the challenge to 23 Pa.C.S.A. §5312 is raised. JPHlsed Enclosure Certified Article Number .e .? -? ,01116 SENDERS RECORD P.O. Box 1166.100 PINE STREET -HARRISBURG, PA 17108-1166 -TEL: 717.232.8000 - FAx: 717.237.5300 - WWW.MWN.COM COLUMBUS, OH • STATE COLLEGE, PA - LANCASTER, PA - HAZLETON, PA - WASHINGTON, DC Very truly yours, 2. Article-Number m?,im1?amnr 71M 3MI PA46 7" 3M a. rtesrriccea ueuveryr (extra tee/ "Yes i 1. Article Addressed to: Attorney General Commonwealth of Pennsylvania Thomas Corbett 16th Floor Strawberry Square Harrisburg, PA 17120 24167-0002 Mattson PS Form 3611, Ady 2001 OWWft RNwn R@c@V i EXHIBIT B r .1? McNEES WALLACE & NURICK LLC By: J. Paul Helvy Attorney I.D. No. 53148 Cheryl B. Krentzman Attorney I.D. No. 203463 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 (717) 260-1701 facsimile phelvyCa-mwn.com Attorney for Defendant JOYCE MATTSON AND GENE MATTSON, Plaintiffs/Respondents V. HEATHER R. MATTSON, Defendant/Petitioner IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-5953 IN CUSTODY DEFENDANT'S ANSWER TO NEW MATTER And now comes Defendant, Heather R. Mattson, by and through her counsel, McNees Wallace & Nurick LLC, and files this Answer to New Matter, and in support thereof, avers as follows: 10. Admitted. 11. Admitted. 12. After reasonable investigation, Defendant is without knowledge to either admit or deny this averment. Defendant believes that she was served with Plaintiffs' Petition in approximately late October 2006. 13. Admitted. By way of further answer, although the issue of standing was not previously raised in the events detailed by Plaintiffs in this paragraph, Defendant and her counsel have asserted from the beginning of this case that it would be improper for Plaintiffs to obtain partial custody or visitation rights. In line with this position, and when the matter was ripe and set for a hearing before the Court, Defendant, through her counsel, raised the claim that 23 Pa. C.S.A. § 5312, the statutory provision upon which Plaintiffs rely in seeking custody, is unconstitutional. This issue was raised in Defendant's Memorandum of Law, which was submitted on March 2, 2007. 14. Admitted in part and Denied in part. Defendant and her counsel participated in a hearing on March 14, 2007. However, Defendant's counsel's verbal claim during this hearing that 23 Pa. C.S.A. § 5312 is unconstitutional was not the first time this argument was made. Defendant's counsel previously argued the unconstitutionality of 23 Pa. C.S.A. § 5312 in Defendant's Memorandum of Law, which was submitted to the Court and opposing counsel on March 2, 2007. 15. Admitted in part. Defendant admits that she did not file Preliminary Objections. Preliminary Objections are appropriate in a custody case only where there are issues of jurisdiction over the person or venue. Pa. R. Civ. P. 1915.5. Neither issue is raised in Defendant's Motion. By way of further answer, while Defendant's Motion for Special Relief in the Form of an Order to Dismiss Plaintiffs' Petition raises the issue of standing in terms of challenging the constitutionality of the statutory provision granting Plaintiffs the ability to seek custody, the crux of Defendant's Motion is the same argument that Defendant's counsel raised in Defendant's Memorandum of Law, namely that 23 Pa. C.S.A. § 5312 is unconstitutional. Defendant recognizes that pursuant to 23 Pa. C.S.A. § 5312 and the Pennsylvania courts' interpretation of this statute, "grandparents of a child whose parents are divorced, involved in dissolution proceedings or have been separated for six months or more may maintain an action for visitation or partial custody." Malone v. Stonerook, 843 A.2d 1278, 1280 (Pa. Super. Ct. 2004). Defendant therefore does not 2 challenge Plaintiffs' standing if it is assumed that the statute is constitutional. However, Defendant's position is that the statute granting Plaintiffs with standing, namely 23 Pa. C.S.A. § 5312, is unconstitutional. Therefore, Plaintiffs lack standing to pursue their custody claims. The Pennsylvania Rules of Civil Procedure do not state that the issue of the constitutionality of a statute must be raised by way of Preliminary Objections. See Pa. R. Civ. P. No. 1028. The rule governing allegations that an Act of Assembly is unconstitutional, Pa. R. Civ. P. No. 235, states that upon such allegation, the party so alleging shall promptly provide the Attorney General with a copy of the pleading or other portion of the record raising the issue. Defendant's counsel has not located any authority setting a deadline for raising the issue of the constitutionality of a statute in a case. After raising the issue of constitutionality, Defendant's counsel notified the Attorney General, and has thus complied with the rules for challenging the constitutionality of a statute. This issue is properly before this Court. 16. Admitted in part and Denied in part. Defendant admits that she did not file an answer, new matter or other responsive pleading to Plaintiffs' petition for custody. Defendant denies that the time for claiming that 23 Pa. C.S.A. § 5312 is unconstitutional has now expired. Pursuant to Pa. R. Civ. P. No. 1915.5, a responsive pleading is not required in a custody action. Defendant is again unaware of any rule or statute restricting the time for claiming that a statute is unconstitutional. The Pennsylvania Supreme Court has found that an oral objection to the constitutionality of a statute made during a hearing was sufficient to raise the issue of constitutionality for the trial court's consideration. Commonwealth v. Stein, 487 Pa. 1, 6-7 (1979). This issue is properly before this Court. Defendant properly filed her Motion for Special Relief pursuant to Pa. R. Civ. P. No. 1915.4(e). 3 17. Denied. Defendant's argument is that 23 Pa. C.S.A. § 5312 is unconstitutional and that without this statute, Plaintiffs lack standing. The constitutionality issue is properly before this Court, and Defendant did not waive or lose her right to raise this issue. 18. Denied. In Hiller v. Fausey, 588 Pa. 342 (Pa. 2006), the Court upheld the constitutionality of 23 Pa. C.S.A. § 5311, but did not address 23 Pa. C.S.A. § 5312, the statutory grounds upon which Plaintiffs rely. Further, in Hiller, the Pennsylvania Supreme Court only considered whether 23 Pa. C.S.A. § 5311 violates substantive Due Process rights under the Fourteenth Amendment to the United States Constitution. Hiller, 588 Pa. at 348. The Hiller court did not address an Equal Protection Clause claim. Id. at 348 n.7. These differences between Hiller and a case similar to the one at bar were noted by a Berks County Court of Common Pleas Judge in Schmehl v. Wegelin, 76 Pa. D & C. 4th 569 (CCP Berks, 2004). A copy of Defendant's Memorandum of Law, in which this issue is discussed in Section lil, is attached hereto as Exhibit "A." A copy of the Schmehl decision is attached hereto as Exhibit "B." This issue has not yet been decided by an appellate court in Pennsylvania and is properly raised before this Court. 4 WHEREFORE, Defendant requests this Honorable Court to grant Defendant's Motion for Special Relief and dismiss Plaintiffs' custody complaint. Respectfully submitted, McNEES WALLACE & NURICK LLC By ?Zt^ ? J. Pau Helvy, Esquire(/ I.D. No. 53148 Cheryl B. Krentzman, Esquire I.D. No. 203463 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 (717) 260-1701 (fax) Dated: May 22, 2007 Attorneys for Defendant/Petitioner 5 McNEES WALLACE & NURICK LLC By: J. Paul Helvy Attorney ID No. 53148 100 Pine Street Harrisburg, PA 17108-1166 (717) 232-8000 (717) 237-5300 facsimile phelyy_(-mwn.com Attorney for Defendant JOYCE MATTSON AND IN THE COURT OF COMMON PLEAS GENE MATTSON, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs/Respondents V. NO. 06-5953 HEATHER R. MATTSON, Defend ant/Petitioner IN CUSTODY MEMORANDUM OF LAW McNEES WALLACE & NURICK LLC J. Paul Helvy, Esquire I.D. #53148 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 (717) 237-5300 (fax) Attorneys for Defendant/Petitioner Dated: March 2, 2007 TABLE OF CONTENTS 1. Plaintiffs Petition For Visitation Or Partial Custody Should Be Dismissed Because Such Visitation Is Not In Child's Best Interest And Visitation With Plaintiffs Would Interfere With The Parent-Child Relationship .........................................................................................1 A. Granting visitation to the Plaintiffs' would not be in the best interest of the child because Plaintiffs' and Defendant's relationship is bitter and Plaintiffs' Continued Denial of their son's criminal conduct will expose the child to ideas which will create conflicting feelings of loyalty between her mother, her father and Plaintiffs . ..................................................................................3 B. Visitation will expose the child to unrealistic assertions regarding her father and cause mental distress to both Mother and the child which will interfere with the parent-child relationship ................................................................................................6 11. Determination Whether To Grant Petitioners' Request For Visitation Requires The Evaluation Of The Parties And The Child By A Psychologist Regarding The Potential Negative Impact Temporary Custody Or Visitation May Have On The Child And The Parent-Child Relationship ...................................................................................................................... 8 III. Section 5312 Violates The Equal Protection Clause Because It Impermissibly Treats Separated Parents Differently Than Parents Who Live Together ........................................................................................................................10 CONCLUSION ...............................................................................................................13 McNEES WALLACE & NURICK LLC By: J. Paul Helvy Attorney ID No. 53148 100 Pine Street Harrisburg, PA 17108-1166 (717) 232-8000 (717) 237-5300 facsimile phelvya-mwn.com Attorney for Defendant JOYCE MATTSON AND IN THE COURT OF COMMON PLEAS GENE MATTSON, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs/Respondents V. NO. 06-5953 HEATHER R. MATTSON, Defend ant/Petitioner IN CUSTODY MEMORANDUM OF LAW I. PLAINTIFF'S PETITION FOR VISITATION OR PARTIAL CUSTODY SHOULD BE DISMISSED BECAUSE SUCH VISITATION IS NOT IN CHILD'S BEST INTEREST AND VISITATION WITH PLAINTIFF'S WOULD INTERFERE WITH THE PARENT-CHILD RELATIONSHIP. In certain circumstances, grandparents have the statutory authority to petition for custody or visitation with their grandchild. When evaluating a grandparent's petition for visitation or custody the court must consider the best interests of the child and whether visitation or custody would interfere with the parent-child relationship. 23 Pa.C.S.A. § 5312 provides as follows: § 5312. When parents' marriage is dissolved or parents are separated. In all proceedings for dissolution, subsequent to the commencement of the proceeding and continuing thereafter or when parents have been separated for six months or more, the court may, upon application of the parent or grandparent of a party, grant reasonable partial custody or visitation rights, or both, to the unmarried child if it finds that visitation rights or partial custody, or both, would be in the best interest of the child and would not interfere with the parent-child relationship. The court shall consider the amount of personal contact between the parents or grandparents of the party and the child prior to application. Emphasis Added. In the case at bar, pursuant to the rights given by §5312 the plaintiff grandparents petitioned for visitation or custody of their grandchild, Maggie, following the separation of their son and the defendant mother, Heather Rae (hereinafter "Mother"). In 2005, Mother filed for divorce after the Plaintiffs' son solicited another party to murder her. Plaintiffs' son was convicted and incarcerated for this crime. Divorce proceedings are still pending. The Pennsylvania Supreme Court requires courts to evaluate the custody requests of a third party, such as a grandparent, against a parent using the standard where the "evidentiary scale is tipped, and tipped hard, to the parents' side." Hiller v. Fausey, 588 Pa. 342, 362, 904 A.2d 875, 887 (2006). This language arises even in a request for partial custody or visitation. Id. at 342. The "parties do not start out even; the parents have a 'prima facie right to custody,' which will be forfeited only if 'convincing reasons' appear that the child's best interest will be served by an award to the third party." Id. at 362-63 (reviewing precedent and maintaining a "presumption in favor of parents that meaningfully tips the balance in the parent's favor."). Application of that standard, the circumstances surrounding this case and the detrimental effect that visitation with the Plaintiffs would have on Maggie as well as the relationship Maggie has with her mother require this court to deny the Plaintiffs' request for visitation. 2 A. Granting visitation to the Plaintiffs' would not be in the best interest of the child because Plaintiffs' and Defendant's relationship is bitter and Plaintiffs' Continued Denial of their son's criminal conduct will expose the child to ideas which will create conflicting feelings of loyalty between her mother, her father and Plaintiffs. "The policy in this Commonwealth has been that grandparent visitation is preferred unless there are overriding factors such as intense animosity between the adults involved." Bishop v. Piller, 399 Pa. Super. 52, 57, 581 A.2d 670, 673 (1990). While grandparents do not have to demonstrate that the denial of visitation would result in harm, Hiller, 588 Pa. at 365, they do bear the burden of overcoming the presumption in favor of special consideration for parents. Id. at 366. In Hughes v. Hughes, 316 Pa. Super. 505, 463 A.2d 478 (1983) the court held that granting visitation rights to the grandmother was not in the best interest of the child. The court upheld the trial court's decision that the "great bitterness" between the mother and the paternal grandmother "would result in a detriment to the child." Id. at 509. In that case, as in the case at bar, the parents had been married, but now divorced. Id. at 506. The mother had been granted sole custody of the child. Id. The child's father broke into his ex-wife's apartment and shot her in the shoulder while she was holding the child. Id. The father was subsequently incarcerated at the Luzerne County Prison. Id. The father and paternal grandparents both petitioned for visitation rights. Id. The court denied visitation rights to the father because it found his conduct toward the mother showed "severe mental or moral deficiency." Id. at 508. This moral deficiency made him "unfit for visitations with the child and that such visitations would be contrary to the child's best interest." Id. 3 The grandmother was also denied visitation rights because great bitterness existed between she and the child's mother and she had had only minimal contact with the child prior. Id. at 509. The court considered the grandmother's claim that the trial court erred by basing its decision on the prior minimal contact. However the court did not consider that claim valid because even if it had considered the prior relationship, it found that "granting her visitation rights would be detrimental to the child due to the bitterness that exists between her and the [child's mother]...." Id. The case at bar is similar to Hughes because Mother's former husband is also in jail due to actions taken against Mother. His conviction for solicitation to commit the murder of Heather Rae shows his obvious severe mental and moral deficiency. His parents, the Plaintiffs, remain largely in denial that their son did anything wrong, but rather maintain their stance that he is just a victim of the court system. This constant denial has led to bitterness between the plaintiff and defendant. Mother feels serious concern that visitation between Maggie and the Plaintiffs would result in the Plaintiffs verbally manipulating the reality of the situation to the child in an attempt to get Maggie on the side of the father. Maggie suffered tremendous mental anguish after her father's incarceration due to feelings of abandonment. However, when the mother explained the reason for the father's departure from her life, Maggie understood and has since accepted the situation. The child is currently doing well in school, both socially and academically. The Plaintiffs have had only one contact with Maggie since October 2005. See Custody Conciliation Summary Report, ¶ 3. Resuming a period of visitation with the Plaintiffs would confuse young Maggie and potentially expose her to pressure to distrust her mother's explanation of the father's incarceration. 4 Like the plaintiff in Hughes, these Plaintiffs may state that their prior relationship with the child should add weight to their argument that visitation would be in Maggie's best interest. However, while the court must consider the amount of contact prior to the application for visitation, the "guiding polestar in deciding all cases involving a child, including whether grandparent visitation rights should be awarded is the best interests of the child." Hughes, 316 Pa. Super at 508-09. In Hughes, the court considered foremost how the parties' feelings toward each other would negatively affect the child. Although the Plaintiffs have had prior and fairly regular contact with Maggie, their current and ongoing denial of their son's criminal activity toward the child's mother has understandably created bitterness between the parties. In Bishop, 399 Pa. Super at 57, the court also considered the relationship between the parties and the child. There the paternal grandmother petitioned for visitation rights because her son, the child's father, was incarcerated. In that case, the child's mother did not want to allow visitation simply because she hoped to remarry again and thought that the child would be singled out and confused about having a different father and grandfather than her future children. Id. Further, the mother was concerned that the father intended to live with his parents after his prison term was over and that the child would be exposed to his violent personality. Id. at 58. In granting the grandmother's petition, the court dismissed the mother's concerns as based on "hypothetical event[s] some time in the future." Id. at 57-58. Like in Hughes, but unlike in Bishop, Heather Rae's unwillingness to allow the Plaintiffs visitation is real and based on a present relationship which has become increasingly strained. Further, unlike in Bishop, Mother has real concerns about the 5 Plaintiffs and their son. The Plaintiffs simply have not shown the capability to grasp the reality of their son's actions. The animosity between the parties is due to the Plaintiffs' denial. The Plaintiffs have previously indicated that they "want the child to maintain a relationship with her father and plan to take the child to the state correctional facility to visit her father." See Custody Conciliation Summary, % 3, attached to Defendant's Pre- Hearing Memorandum. Visitation with the Plaintiffs' son has not been determined to be in Maggie's best interest. In fact, both Mother and child currently have a Protection from Abuse Order against Plaintiffs' son. Permitting visitation will expose Maggie to the Plaintiffs' denial, confuse her and cause her to have conflicting feelings of loyalty between her mother, her father, and the Plaintiffs. This conflicting loyalty is not only detrimental to the Maggie's best interest, but as discussed below, will also interfere with the parent-child relationship. B. Visitation will expose the child to unrealistic assertions regarding her father and cause mental distress to both Mother and the child which will interfere with the parent-child relationship Section § 5312 also requires courts to consider whether the award of partial custody or visitation will be detrimental to the parent-child relationship. In Norris v. Tearney, 422 Pa. Super. 246, 619 A.2d 339 (1993) considered how that defendant mother's feeling about the child's relationship with the plaintiff grandparents affected the parent-child relationship. In Norris the grandparents sought visitation with their grandson, whom their son had abandoned at birth. That child's mother suffered from severe depression both before and after the abandonment. Id. at 248. The grandparents had visited the mother and child in the hospital and even brought the child to their house a few times after his birth. Id. The mother testified that she could not 6 cope with visits between her son and his paternal grandparents "in light of the fact that their son had abandoned her and [the child]." Id. at 250. The court heard extensive testimony from the mother's treating psychologist regarding the mother's condition. Id. The court found that because the mother's depression "worsens upon contact with the [paternal grandparents], the parent-child relationship suffers." While the court sympathized with the paternal grandparents and commended their interest in maintaining a relationship with their grandson, it found "their involvement affects the mother's mental health, which in turn adversely affects [the child]." Id. at 253. In the case at bar, visitation with the Plaintiffs will affect not only the mother's, but also Maggie's, mental health. Mother is justifiably concerned about a relationship between the Plaintiffs and Maggie. The Plaintiffs continue to deny their son's wrongdoing and Mother fears they will attempt to get the child on their or her father's side. Exposure to the Plaintiffs will subject Maggie to conflicting stories regarding her father's conduct toward her mother and the reason for his subsequent incarceration. A five-year-old child will be unable to ascertain whom to trust and will suffer conflicting feelings of loyalty. This will have a detrimental affect on her mental health and specifically with her ability to trust her mother. The breakdown of trust between a parent and child is a serious interference with the relationship. Further, Mother's mental health will be adversely affected as visitation with the Plaintiffs will limit her ability to monitor the information being fed to her child. Mother will not know what Maggie is being told, which will make it impossible to deal with the misinformation that the Plaintiffs may be sharing with Maggie. Maggie may not reveal how she feels to either the grandparents or her mother, because she is getting 7 conflicting stories about her father and doesn't know what to believe. Visitation with the grandparents will therefore place the mother-daughter relationship into one of tiptoeing around each other to avoid stressful dialogue regarding the grandparents or the father. Therefore, because it is not in Maggie's best interest to visit with Plaintiffs and such visits would detrimentally interfere with the currently healthy parent-child relationship, Plaintiffs' petition should be denied. II. DETERMINATION WHETHER TO GRANT PETITIONERS' REQUEST FOR VISITATION REQUIRES THE EVALUATION OF THE PARTIES AND THE CHILD BY A PSYCHOLOGIST REGARDING THE POTENTIAL NEGATIVE IMPACT TEMPORARY CUSTODY OR VISITATION MAY HAVE ON THE CHILD AND THE PARENT-CHILD RELATIONSHIP.. As it is clear from the above, Mother believes it is improper to grant the Plaintiffs' Court ordered visitation privileges. However, even if this court believes that the Plaintiffs might be able to meet their burden to overcome the presumption in favor of parents, the court should rely on expert evaluations by a psychologist before making that determination. In December 2006, the parties agreed that an independent psychologist or other expert should meet with the parties and the child to advise the Court, if necessary, as to whether the Plaintiffs should have periods of temporary custody of Maggie. See Defendant's Petition for Appointment of Custody Evaluator, ¶ 11 and Plaintiffs' Answer, % 11. It is within this court's discretion to order an evaluation. Jordan v. Jackson, 2005 Pa. Super 208, 876 A.2d 443, 455 (Pa. Super. 2005); See also Pa. R.C.P. 1915.8 ("the court upon its own motion may order a party to submit to a[] [physical or mental] evaluation..."). Mother feels that such an evaluation is necessary to the court's determination of partial custody or visitation. The circumstances surrounding this case are disturbing. 8 The child's father is incarcerated for soliciting the murder of the child's mother. Prior to the incarceration of their son, the Plaintiffs maintained a relationship with their grandchild. The mother has a standing Protection From Abuse order against the father. The child has knowledge of the father's incarceration and the reason behind it. The Plaintiffs continue to remain in denial of their son's guilt. Mother is concerned that if visitation is awarded the grandparents' version of the reason behind their son's incarceration will be thrust upon the child and confuse her. The grandparents have not had any contact with the child since January 2005. In spite of the circumstances involving her father, the child has managed to adapt and succeed both socially and academically in her kindergarten year. The Plaintiffs now state that they would not arrange for the child to see her father during his incarceration "without either the consent of Mother or authorization from this court." Plaintiffs' Answer to Petition for Appointment of Custody Evaluator, ¶ 6. However, the Court has no assurances that they will not attempt to persuade the child that the mother is wrong about the father. An experts evaluation of the Plaintiffs' ability to grasp the reality of the situation and the harm unrealistic diatribes or improper visits with the father will have on the child is necessary for this court to determine whether visits with the Plaintiffs would be in the best interest of the child. Further, because the court is required to consider the impact such visits may have on the parent-child relationship, it is necessary that the court rely on the expertise of a psychologist trained in the dynamics of family relationships. Notwithstanding her agreement about the urgent need for a psychologist, defendant contends that Plaintiffs should be ordered responsible for the costs involved 9 with any psychological evaluations of either party, the child, or any required witnesses. Mother did not choose to find herself in this custody battle with a third party. She and the child are the victims of the Plaintiffs' son's gross moral deficiency and criminal behavior. But for his behavior which resulted in incarceration, he could ensure that the child has visits with his parents. Mother is not responsible for his incarceration. Mother is not responsible for the resulting bitterness that has developed due to the Plaintiffs' denial of their son's wrongdoing. Nor is Mother responsible for the fact that the Plaintiffs have initiated this action, thereby potentially jeopardizing the mental health of the minor child. Therefore, Mother should not be responsible for the costs involved in the Plaintiffs' attempt to reduce the amount of control she has over her young child. III. SECTION 5312 VIOLATES THE EQUAL PROTECTION CLAUSE BECAUSE IT IMPERMISSIBLY TREATS SEPARATED PARENTS DIFFERENTLY THAN PARENTS WHO LIVE TOGETHER. 23 Pa.C.S.A. § 5312 violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The Fourteenth Amendment guarantees that "no state shall make or enforce any law which shall deny to any person within its jurisdiction the equal protection of the laws." The Pennsylvania Supreme Court has found that this prohibition does not preclude "legislative classifications.... provided that those classifications are reasonable rather than arbitrary and bear a reasonable relationship to the object of the legislation." Curtis v. Kline, 542 Pa. 249, 255, 666 A.2d 265, 267-68 (1995) (citations omitted). The Pennsylvania Supreme Court has recognized that a parent's right to the "care, custody and control of their children" is a fundamental right. Hiller v. Fausey, 588 Pa. 342, 904 A.2d 875 (2006) (applying Troxel v. Granville, 530 U.S. 57, 67 (2000)). Further, Pennsylvania has affirmatively chosen to 10 apply a strict scrutiny analysis to any infringement of this right. Id. at 358-359 (concluding that strict scrutiny analysis must be used to analyze 23 Pa.C.S.A. § 5311 (statute providing grandparents the right to petition for visitation upon death of grandchild's parent)); Schmehl v. Wegelin, 76 Pa. D & C. 4th 569 (CCP Berks, 2004) (applying strict scrutiny test to 23 Pa.C.S.A. § 5312). Therefore, the infringement must be supported by a compelling state interest and be narrowly tailored to effectuate that interest. Hiller, 558 Pa. at 359. The Pennsylvania Superior Court addressed this issue in respect to § 5311 and found that the statue, which provided grandparents with the right to sue for visitation after the death of the grandchild's parent, did not violate the Equal Protection clause. Fausev v. Hiller, 2004 Pa. Super. 186, 851 A.2d 193 (2004). The court found a "justifiable and reasonable purpose of protecting a child's emotional well-being and accounting for the potentially different needs of a child whose parent has died." Id. at 198 (emphasis added). Because the issue was not raised on appeal, the Pennsylvania Supreme Court declined to address the Equal Protection claim. Hiller, 588 Pa. at 349, fn. 7. Neither court discussed the constitutionality of § 5312. Fausev, 851 A.2d at 195 ("Because § 53,12 is not implicated ... we will not consider it."). Therefore, this issue is one of first impression before this court. However, this Court is not without guidance. The Berks County Court of Common Pleas addressed the equal protection claim in relation to section 5312. That court held that, unlike section 5311, section 5312 does violate the Equal Protection Clause. Schmuehl, 76 Pa. D & C. 4th at 571. The Schmuehl court noted that the need for grandparents to have the ability to petition for visitation when a parent dies is 11 "significantly" different than in the case where parents merely separate or divorce. Id. at 575. It agreed with the Superior Court's determination that in the case of a deceased parent there is a "compelling interest for the child to continue a relationship with both sets of grandparents, because ... without the deceased parent able to provide a connection for their child with their parent, the surviving parent could easily keep the child away from the deceased partner's parent(s)." Id. at 575-76. However, the court found there was no compelling interest for classifying living parents who resided together from parents who lived separately. Id. at 576. "Although the parents are not together, it does not logically follow that they no longer have the right to make the decisions regarding their children and that state intervention is necessary." Id. In the case at bar, both parents are still alive. That the father is presently incarcerated for soliciting the murder of Mother and thus voluntarily reduced his own present ability to visit Maggie is irrelevant to the ultimate determination that § 5312 impermissibly classifies separated and non-separated parents. Death, unlike incarceration due to criminal activity, is a permanent and involuntary removal of the parent's ability to spend time with their child. Incarcerated parents maintain the right and ability to petition the court for visitation with their children. See Etter v. Rose, 454 Pa. Super. 138, 684 A.2d 1092 (1996) (abuse of discretion to refuse visitation to incarcerated father without exploring the merits of the petition). The state's interest in "the continuing contact of the child or children with grandparents when a parent is deceased, divorced or separated," 23 Pa.C.S. § 5301, is not compelling when the child's parents are living because there is not a permanent end to the separated parent's ability to foster a relationship between the child and grandparent. 12 Therefore, there is no compelling interest necessitating state intervention simply because parents do not live together. This court should adopt the reasoning of the Berks County Court of Common Pleas and find that § 5312 violates the Equal Protection Clause. CONCLUSION Wherefore, Mother respectfully requests this Honorable Court to dismiss Plaintiffs' Complaint or, in the alternative, order psychological evaluations to be conducted of the parties and minor child at the Plaintiffs' Expense. Respectfully submitted, McNEES WALLACE & NURICK LLC By J. P AI Helvy, EsOjire #53148 100 Pine Str et P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 (717) 237-5300 (fax) Attorneys for Defendant/Petitioner Dated: March 2, 2007 13 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by facsimile upon the following: Samuel L. Andes, Esquire 525 North 12th Street P.O. Box 168 Lemoyne, PA 17043 c e Armour, Secretary to J. Paul Helvy Dated: March 2, 2007 ?d;d?t 4 Page 2 of 4 76 Pa. D. & C.4th 569 2004 WL 4507415 (Pa.Com.Pl.), 76 Pa. D. & C.4th 569 C Court of Common Pleas of Pennsylvania, Berks County. Schmehl V. Wegelin No. 05-5526. July 21, 2004 West Headnotes Child Custody C=4 76Dk4 Most Cited Cases Constitutional Law X3738 92k3738 Most Cited Cases (Formerly 92k225.1) Section 5312 of the Grandparents Visitation Act, which applies when both of the child's parents are alive, violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. *570 Sharon Gray, for plaintiffs. Gregory Henry, for defendant Wegelin. KELLER, J. STATEMENT OF THE CASE Mother (Ann Wegelin) and Father (Perry Schmehl) were married on January 4, 1992, in Berks County, Pennsylvania. Two children, Sara A. Schmehl (born 11/6/98) and Samuel C. Schmehl (born 3/17/95), were bom of the marriage. By decree dated April 11, 2003, the parties were divorced. On November 13, 2002, the court entered a custody order by which the parties are operating under to this date. *571 On April 29, 2005, the plaintiffs, paternal grandparents, filed a custody action against Mother, as Mother would not allow the children to visit with paternal Grandparents. On May 5, 2005, Mother filed preliminary objections to Grandparents' custody action. On May 11, 2005, paternal Grandparents filed an amended custody action Page 1 naming Father as a defendant and the parties agreed he was a necessary party to the suit. On May 25, 2005, Mother filed a praecipe for argument court, alleging that 23 Pa.C.S. §5312 is unconstitutional, and on the same date filed the required notice to the Attorney General per Pa.R.C.P. 235. On June 27, 2005, the plaintiffs filed their answer and brief in response to Mother's action alleging unconstitutionality of 23 Pa.C.S. § 5312. This court set a hearing date for July 11, 2005, on the constitutional challenge, as well as the date for the defendant's petition for special relief, which was unrelated to the constitutional challenge. After argument heard, and upon review of both plaintiffs' and defendant's briefs, this court entered an order on July 14, 2005, finding that 23 Pa.C.S. § 5312 violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and dismissed the plaintiffs' complaint for custody. CONSTITUTIONALITY OF 23 Pa.C.S. §5312 This court finds that 23 Pa.C.S. §5312 violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The Fourteenth Amendment to the United States Constitution guarantees that "no state shall make or enforce any law which shall deny to any person within its jurisdiction the equal protection *572 of the laws." However, the Pennsylvania Supreme Court has stated "[t]he prohibition against treating people differently under the law does not preclude the Commonwealth from resorting to legislative classifications, provided that those classifications are reasonable rather than arbitrary and bear a reasonable relationship to the object of the legislation." Curtis v. Kline, 542 Pa. 249, 255, 666 A.2d 265, 267-68 (1995). (citations omitted) When that classification burdens a fundamental right, the strict scrutiny test must be applied: the classification must be necessary to a compelling governmental interest. © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://web2.westlaw. comlprintlprintstream. aspx?fn=_top&destination=atp&mt=FamilyLa... 5/22/2007 Page 3 of 4 76 Pa. D. & CAth 569 Page 2 2004 WL 4507415 (Pa.Com.Pl.), 76 Pa. D. & C.4th 569 The statute at issue, deemed the Grandparents Visitation Act, provides three provisions for grandparents' custody and visitation rights: (a) 23 Pa.C.S. §5311: when a parent is deceased; (b) 23 Pa.C.S. §5312: when parents' marriage is dissolved or parents are separated; and (c) 23 Pa.C.S. §5313: when grandparents may petition. The section of the Act specifically at issue in this case is section 5312, which provides: "In the proceedings for dissolution, subsequent to the commencement of the proceedings and continuing thereafter or when parents have been separated for six months or more, the court may, upon application of the parent or grandparent of a party, grant reasonable partial custody or visitation rights, or both, to the unmarried child if it finds that visitation rights or partial custody, or both, would be in the best interest of the child and would not interfere with the parent-child relationship. The court shall consider the amount of personal contact between *573 the parents or grandparents of the party and the child prior to the application." It is clear that section 5312 of the Grandparents Visitation Act has created a classification: namely a parent who is married and resides with her spouse or is unmarried and lives with their child's parent has unfettered discretion in choosing with whom their children are permitted to associate; however, parents that are separated and/or divorced, do not have this unfettered right and the court system may intervene. It is also clear that the right to be protected in this case is a fundamental right: "The United States Supreme Court has stated that the right of parents to make decisions about the upbringing of their children is a fundamental right," Fausey v. Hiller, 851 A.2d 193, 195 (Pa. Super. 2004). "[I]t cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children." Id., citing Troxel v. Granville, 530 U.S. 57, 67, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). In relation to the Grandparents Visitation Statute at issue, the Superior Court discussed this fundamental right and has found that, when parents are married or are not married, but are living together, grandparents do not have standing to file for partial custody or visitation rights. See Herron v. Seizak, 321 Pa. Super. 466, 468 A.2d 803 (1983), and Welsh v. Welsh, 21 Pa. D. & CAth 246 (1993). From the foregoing, then, it becomes clear that the Grandparents Visitation Act creates a classification, and interferes with a parent's fundamental right to determine with whom their children associate. The pertinent question then becomes, is there a compelling governmental *574 interest that justifies this intervention and classification. This court finds that there is not. The Superior Court has not yet determined whether 23 Pa.C.S. §5312 is constitutional under the Equal Protection Clause of the Fourteenth Amendment; however, the Pennsylvania Supreme Court and Superior Court have discussed Equal Protection issues of relative importance to the issue at hand. The Pennsylvania Supreme Court has discussed an Equal Protection issue in terms of whether the legislature had a legitimate interest in treating the children of separated, divorced or unmarried parents differently than children of married parents for purposes of funding their children's college education. See Curtis v. Kline, supra. In that case, the statute was struck down as the legislature did not have a legitimate interest in classifying the children as it did. Unlike our case, where the right to be protected is a fundamental right, the right protected in the Curtis case, the right to a college education, is not a fundamental right. In the Curtis case, the statute would be upheld "if there is any rational basis for the classification" and in the present matter the statute can be upheld if the "statute is strictly construed in light of a compelling governmental purpose." This is significant in that, although the subject matter is different, the classification in the two cases is similar: intact families are treated differently than separated or divorced parents. The statute creating a classification by permitting the © 2007 Thomson/West. No Claim to Orig. U.S, Govt. Works. http : //web2.westlaw. cam/print/printstream. aspx? fn=_top&destination=atp&mt=FamilyLa... 5/22/2007 Page 4 of 4 76 Pa. D. & CAth 569 Page 3 2004 WL 4507415 (Pa.Com.P1.), 76 Pa. D. & CAth 569 court to order separated or divorced parents to provide equitably for educational costs, where parents of intact families did not have to provide for secondary education, did not withstand a rational basis *575 test, therefore, the similar statute classification here, permitting the court to order a divorced or separated parent to permit their child(ren) to visit with their grandparents, while intact families can make the decision without court interference, certainly cannot be said to withstand the strict scrutiny test. The Superior Court has reviewed an Equal Protection issue under the Grandparents Visitation Statute in terms of 23 Pa.C.S. §5311. The Superior Court addressed whether 23 Pa.C.S. §5311 violated the Equal Protection Clause of the Fourteenth Amendment in Fausey v. Hiller, supra. In that case, the Superior Court found that section 5311 did not violate the Due Process or the Equal Protection Clause of the Fourteenth Amendment. In Fausey, the Superior Court determined that, to the extent section 5311 treats children differently who have lost a parent to death than those children who have not, it is for the "justified and reasonable purpose of protecting a child's emotional well-being and accounting for the potentially different needs of a child whose parent has died." Fausey, supra at 198. "The compelling purpose behind section [5311] .. . is to foster the emotional welfare of children... . The statute treats children from intact families differently from children who have experienced the death of a parent. That classification makes perfect sense because it is precisely in those cases where the danger of alienation from a grandparent is greatest." Fausey, supra at 198, citing trial court opinion at 17, living, and therefore they have the fundamental right to make the determination of whom their children will associate with. This court does not see that a compelling government interest exists to treat separated parents, who are still both alive and still fit to make decisions regarding their children, any differently than two parents that are still together. Although the parents are not together, it does not logically follow that they no longer have the right to make the decisions regarding their children and that state intervention is necessary. Both parents remain and, during periods of their visitation with the children, either parent can provide access to their parents. There is no compelling reason that this court can see for the state to require that Mother give up more of her time with the children so that Father's parents can have their own periods of visitation separate from visitations while Father has custody. As a result of the foregoing, this court finds that 23 Pa.C.S. §5312 violates the Equal Protection Clause of the Fourteenth Amendment. It has not been established that there is a compelling governmental interest for classifying married parents or parents residing together differently than separated or divorced parents, when the government is clearly interfering with the parents' fundamental right to care, custody and control of their children. 0 #3 2060 END OF DOCUMENT Our case is significantly different from the case in which a parent dies. This court agrees that, in that situation, there is a compelling governmental interest for the child to continue a relationship with both sets of grandparents, *576 because, as stated above, without the deceased parent able to provide a connection for their child with their parent, the surviving parent could easily keep the child away from the deceased partner's parent(s). A child in that situation needs as much emotional support as possible from their remaining parent, but also from their grandparents. In our case, both parents are © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://web2.westlaw. com/printlprintstream.aspx?fn=_top&destination=atp&mt=FamilyLa... 5/22/2007 VERIFICATION I verify that the statements made in the foregoing document 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. He her R. Mattson Dated: 5' ZZ - 0 1 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served upon the following: Via facsimile and Regular Mail: Samuel L. Andes, Esquire 525 North 12th Street P.O. Box 168 Lemoyne, PA 17043 Via Certified Mail, Return Receipt Requested: Attorney General Commonwealth of Pennsylvania Thomas Corbett 16th Floor Strawberry Square Harrisburg, PA 17120 OLZ . K1141 Cheryl . Krentzman Dated: May 22, 2007 +'? ? ??:; -n c?;: ?? _? *z ,, _._ .. s , . ..- ?? e?-? ? ' ?-..? ;?, t.n :. ,? JOYCE MATTSON AND IN THE COURT OF COMMON PLEAS OF GENE MATTSON, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - LAW VS. NO. 06-5953 CIVIL HEATHER R. MATTSON, Defendant IN CUSTODY ORDER AND NOW, this Z day of July, 2007, hearing in the above matter set for August 1, 2007, is continued to Wednesday, August 8, 2007, at 1:30 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. /amuel Andes, Esquire For the Plaintiffs ,,/Paul Helvy, Esquire For the Defendant J rlm DV -ruL' OnTTD'r AI.Ntrl(r n,ltrHi imno z I : I I Wei cZ Inr Loot Jo A8VIONOHI W"v JOYCE MATTSON AND IN THE COURT OF COMMON PLEAS OF GENE MATTSON, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - LAW VS. NO. 06-5953 CIVIL HEATHER R. MATTSON, Defendant IN CUSTODY ORDER AND NOW, this 1'7" day of September, 2007, after hearing and review of the testimony adduced, the court being unsatisfied that compelled visitation with the petitioners is in the best interest of the child, Margarette Rae Mattson, born October 20, 2000, and concluding that same would interfere with the relationship between parent and child, the petition of the plaintiffs for visitation is DENIED. BY THE COURT, Z Hess, J. ,$6muel L. Andes, Esquire For the Plaintiffs /Y. f'aul Helvy, Esquire For the Defendant :rlm 040 ell z rn.'a't CcrL 41t3/v7 b?NV'AIASNN3d 9 E _£ Wd E 1 AS LODZ A8VIQ W'r-UQtfd alt :10 30LIKY-QM