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HomeMy WebLinkAbout07-6292DORIS MAE HOLT-KENNEDY and LEE E. KENNEDY, Plaintiffs V. SARAH E. FLYNN-TRIPP and JAMES WALSH Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW CUSTODY COMPLAINT FOR CUSTODY 1. The Plaintiffs are Doris Mae Holt-Kennedy and Lee E. Kennedy, presently residing at 515 Big Spring Road, Newville, Cumberland County, Pennsylvania, 17241. 2. Defendant Sarah E. Flynn-Tripp, presently resides at 13861 Victoria Drive, Victorville, California 92395, with mailing address at P.O. Box 635, Victorville, California 92395. 3. Defendant James Walsh, resides at an address unknown to Plaintiffs. To the best knowledge of Plaintiffs, his last known address was Troup, Luzerne County, Pennsylvania and his last known mailing address was Dunmore, Pennsylvania, 18509. 4. Plaintiffs seek custody of the following child: NAME LUKE JAMES FLYNN PRESENT RESIDENCE AGE 515 Big Spring Road, Newville, PA 5 Yrs. (D.O.B. 10-28-01) The child was born outside the bonds of matrimony. The child is presently in the custody of the Plaintiffs, Doris Mae Holt-Kennedy and Lee E. Kennedy, who reside at 515 Big Spring Road, Newville, Cumberland County, Pennsylvania. During the past five years, the child has resided with the following persons and at the following addresses: NAME ADDRESS DATE Doris Mae Holt-Kennedy and 515 Big Spring Road October 10, 2006 Lee Kennedy Newville, PA 17241 to present WEIGLE & ASSOCIATES, P.C. - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA 17257-1397 Doris Mae Holt-Kennedy and 430 Shippensburg Road June 20, 2005 Lee E. Kennedy Newville, PA 17241 October 10, 2006 Sarah E. Flynn-Tripp 22839 Lone Eagle Road June 2004 Apple Valley, CA 92307 to June 19, 2005 Sarah E. Flynn-Tripp 21401 Highway 18 June 2003 And Doris V. Fries Apple Valley, CA 92307 to June 2004 Sarah E. Flynn-Tripp 1511 West Nancy Street December 2002 Barstow, CA 92711 to June 2003 The mother of the child is Sarah E. Flynn-Tripp, currently residing at an undisclosed location, with last known address at 13861 Victoria Drive, Victorville, California 92395 and last known mailing address at P.O. Box 635, Victorville, California, 92395. She is married to Daniel Tripp. The father of the child is James Walsh, with last known address in Troup, Luzeeme County, Pennsylvania and his last known mailing address at Dunmore, Pennsylvania, 18509. His marital status is unknown. 4. The relationship of Plaintiffs to the child is that of maternal grandmother and maternal step-grandfather. 5 The relationship of Defendant, Sarah E. Flynn-Tripp to the child is that of natural mother. The Defendant currently resides with the following persons: NAME RELATIONSHIP Daniel Tripp Husband 6. Plaintiffs have not participated as a party or witness, or in another capacity, in other litigation concerning the custody of the child in this or another court. Plaintiffs have no information of a custody proceeding concerning the child pending in a court of this Commonwealth. Plaintiffs do not. know of a person, not a party to the proceedings, who has physical custody of the child or claims to have custody or visitation rights with respect to the child. 7 The best interest and permanent welfare of the child will be served by granting the relief requested because: A. Defendant Sarah E. Flynn-Tripp relinquished custody to Plaintiff, Doris Mae Holt-Kennedy on or about June 19, 2005. Attached hereto labeled Exhibit A, and incorporated by reference herein is a true copy of an WEIGLE & ASSOCIATES, P.C. - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA 17257-1397 Agreement signed by Defendant, Sarah E. Flynn-Tripp and Plaintiff, Doris Mae Holt-Kennedy; B. Defendant Sarah E. Flynn-Tripp has maintained only limited contact with the child since June 19, 2005 and has not exercised partial custody since that date; C. Plaintiffs have provided a stable structured lifestyle for the child; D. To the best knowledge of Plaintiffs, Defendant James Walsh has had no contact with the child for the previous 5 years; E. Defendant Sarah E. Flynn-Tripp has an unstable lifestyle and has admitted to Plaintiffs that on occasion she resides in vehicles; F. Defendant has admitted to Plaintiffs that she is involved in an abusive relationship with Daniel Tripp, her husband; G. Defendant Sarah E. Flynn-Tripp has threatened to take the child and relocate the child to California or Nevada; H. Plaintiffs are better able to provide for the physical and emotional needs of the child than either Defendant; 1. The child desires to reside with Plaintiffs' and is fearful of being taken by Defendant Sarah E. Flynn-Tripp; J. Defendant Sarah E. Fylnn-Tripp has exhibited violent behavior, including and assault against her 78 year old grandmother which resulted in a complaint to be filed against her; K. Daniel Tripp has served considerable time in jail for various offenses and is currently on parole in the state of California; and L. On October 15, 2007, Daniel Tripp threatened to kill Plaintiffs. As a result, a warrant has been issued by Pennsylvania authorities for his arrest for terroristic threats. 8. Each parent whose parental rights to the child have not been terminated and the person who has physical custody of the child have been named as parties to this action. All other persons, named below, who are known to have or claim a right to custody or visitation of the child will be given notice of the pendency of this action and the right to intervene: NAME ADDRESS BASIS OF CLAIM NONE WEIGLE & ASSOCIATES, P.C. - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA 17257-1397 WHEREFORE, Plaintiffs request the Court to grant both legal and primary residential custody of the minor child to the Plaintiffs. WEIGLE & ASSOCIATES, P.C. Date: /0 t a Sr(0 7 By: Richard L. Webber, Jr., Esquire Attorney for Plaintiff I.D.# 49634 126 East King Street Shippensburg, PA 17257 Telephone 717-532-7388 WEIGLE & ASSOCIATES, P.C. - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA 17257-1397 VERIFICATION I verify that the statements made in the foregoing Complaint for Custody 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. Dated: 1Qe o?S, ad ? Doris Mae Holt-Kennedy VERIFICATION I verify that the statements made in the foregoing Complaint for Custody 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. Dated: Oct 7-S, zoo 7 Lee E. Ke edy WEIGLE & ASSOCIATES, P.C. - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA 17257-1397 CUSTODY AGREEMENT KNOW ALL MEN BY THESE PRESENTS, that I, SARAH E. FLYNN TRIPP, of 22839 Lone Eagle Road, Apple Valley, California, the natural parent of the minor child, LUKE JAMES FLYNN, born October 28, 2001, hereby grant, give and set over custody of said LUKE JAMES FLYNN, to DORIS MAE HOLT-KENNEDY, of 430 Shippensburg Road, Newville, Pennsylvania, to exercise such custody while said child is in her care and control to the same extent and with the same rights, privileges, duties and responsibilities as would otherwise be vested in the above-named natural parent, SARAH E. FLYNN TRIPP, of the said LUKE JAMES FLYNN. Said duties and responsibilities to include but not be limited to provision of proper health and medical care, authorization of medical care including consent and authorization for all necessary, ordinary and extraordinary medical care provided by a physician, hospital, clinic, or other properly trained medical personnel. And further imposing upon DORIS MAE HOLT-KENNEDY all of the responsibilities of proper supervision and care to secure the best interests and welfare of said minor chii!S, IN WITNESS WHEREOF, I have hereunto set my hand and seal this _& day of June, 2005. l SEAL ARAH E. FLYNN RIP EXHIBIT ACKNOWLEDGMENT BE IT KNOWN that I, DORIS MAE HOLT-KENNEDY, of 430 Shippensburg Road, Newville, Pennsylvania, hereby acknowledge and accept custody of the above-named child, LUKE JAMES FLYNN, to exercise the same rights, privileges, duties and responsibilities as would otherwise be vested in the natural parent, SARAH E. FLYNN TRIPP. Witness: /? COUNTY OF & n & Rrld 9 ? IrY) Q SEAL) DORIS MAE HOLT-KEN D: SS ON this, the '(0k day of June, 2005, before me, the undersigned officer, personally appeared Sarah E. Flynn Tripp and Doris Mae Holt-Kennedy, known to me to be the persons whose names are subscribed to the within instrument, and acknowledged that they executed same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. JANICE L. ROSS (SEAL) Commission # 1400952 otary Public ??'*-i-s- Notary public - California rSan Bernardino county My Comm. Expires Feb 16,2007 STATE OF CALIFORNIA ?.a f W c r - . CD ?; G 1 DORIS MAE HOLT-KENNEDY and LEE E. KENNEDY, Plaintiffs/Petitioners V. SARAH E. FLYNN-TRIPP and JAMES WALSH, Defendants/Respondents : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, :PENNSYLVANIA : CIVIL ACTION - LAW :CUSTODY ..r NO. c?7 - G.2 t,,, PETITION FOR SPECIAL RELIEF FOR CUSTODY PENDING THE CONCILIATION CONFERENCE OR FURTHER ORDER Plaintiffs/Petitioners, Doris Mae Holt-Kennedy and Lee E. Kennedy, by their attorneys, Richard L. Webber, Jr., and Weigle & Associates, P.C., files this Petition for Special Relief pursuant to Pa. R.C.P. 1915.13, averring as follows: 1. Plaintiffs/Petitioners are Doris Mae Holt-Kennedy and Lee E. Kennedy, presently residing at 515 Big Spring Road, Newville, Cumberland County, Pennsylvania 17241. 2. Defendant/Respondent Sarah E. Flynn-Tripp presently resides at a location that she has refused to disclose to Plaintiffs/Petitioners, with a last known address of 13861 Victoria Drive, Victorville, California, 92395 and last known mailing address at P.O. Box 635, Victorville, California, 92395. 3. Defendant/Respondent James Walsh presently resides at an address unknown to Plaintiff/Petitioners with last known address in Troup, Luzerne County, Pennsylvania and last known mailing address at Dunmore, Pennsylvania 18509. 4. Plaintiff/Petitioner Doris Mae Holt-Kennedy is the maternal grandmother of Luke James Flynn, the child herein, age 5 (D.O.B. 10/28/01). 5. Plaintiff/Petitioner Lee E. Kennedy is the husband of Doris Mae Holt-Kennedy. WEIGLE & ASSOCIATES, P.C. - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG. PA 17257-1397 6. Defendant/Respondent Sarah E. Flynn-Tripp is the natural mother of the child. 7. Defendant/Respondent James Walsh is the natural father of Luke James Flynn. 8. Plaintiff/Petitioners have filed a Complaint for Custody simultaneously with the filing of this Petition, the averments of which are incorporated by reference herein as though set forth in full. 9. Plaintiffs/Petitioners have exercised sole physical and legal custody of the child since June 19, 2005. 10. The child attends Kindergarten in the Big Spring School District, Cumberland County, Pennsylvania. 11. The child attends church and related activities with Plaintiffs/Petitioners on a regular basis. 12. As set forth more fully below, Defendant/Respondent Sarah E. Flynn-Tripp has threatened to take the child from Plaintiff/Petitioners to an undisclosed location in California or Nevada. 13. On October 15, 2007, Defendant/Respondent Sarah E. Flynn-Tripp came to Plaintiff/Petitioners' residence, without prior warning, and attempted to take the child. 14. As a result of the incident the Pennsylvania State Police were called to Plaintiff/Petitioners' residence. 15. Defendant/Respondent Sarah E. Flynn-Tripp's husband, Daniel Tripp, telephoned Plaintiff/Petitioners during this incident and threatened to kill Plaintiffs/Petitioners. As a WEIGLE & ASSOCIATES, P.C. - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA 17257-1397 result, a warrant has been issued for the arrest of Mr. Tripp for allegedly making terroristic threats. 16. The Pennsylvania State Police convinced Defendant/Respondent Sarah E. Flynn- Tripp to leave the premises without the child, but informed both parties that absent a court order, Mrs. Flynn-Tripp could take the child. 17. On October 23, 2007, Defendant/Respondent Sarah E. Flynn-Tripp telephoned Plaintiff/Petitioners and stated that she planned to take the child in two weeks. 18. Defendant/Respondent Sarah E. Flynn-Tripp further stated that she intended to "home school" the child. 19. As a result of these recent events, Plaintiffs/Petitioners and the child are terrified. 20. Plaintiff/Petitioners aver that it would be in the best interest of the child to remain in the custody of Plaintiffs/Petitioners pending a final custody hearing. 21. A copy of this Petition and proposed Order, as well as the Complaint for Custody have been forwarded to Defendant/Respondent Sarah E. Flynn-Tripp via U.S. First Class Mail. 22. Plaintiff/Petitioners and their undersigned counsel have attempted to contact Defendant/Respondent Sarah E. Flynn-Tripp via her cellular telephone, concerning this Petition, without success. 23. Defendant/Respondent James Walsh, to the best knowledge of Plaintiffs /Petitioners has not had any contact with the child in 5 years. Plaintiffs/Petitioners do not know how to contact him. WEIGLE & ASSOCIATES, P.C. - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA 17257-1397 WHEREFORE, Plaintiff/Petitioners request the Court to grant both temporary legal and primary physical custody of the minor child to the Plaintiff/Petitioners. WEIGLE & ASSOCIATES, P.C. By. Richard L. Webber, Jr., Esquire Attorney for Plaintiffs/Petitioners I.D.# 49634 126 East King Street Shippensburg, PA 17257 Telephone 717-532-7388 WEIGLE & ASSOCIATES, P.C. - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA 17257-1397 VERIFICATION I verify that the statements made in the foregoing Petition for Special Relief 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. Dated: Oct a 5, ,??o 7 DORIS MAE HOLT- VERIFICATION I verify that the statements made in the foregoing Petition for Special Relief 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. Dated: oc- J 'os , Z'00 7 , LEE E. KENNEDY WEIGLE & ASSOCIATES, P.C. - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA 17257-1397 Aj Q 0 b O ?14 t? PU C"..t cm _.., c? r.a Q's U -1,"` :s3 l' OCT 292 DD7 DORIS MAE HOLT-KENNEDY and LEE E. KENNEDY, Plaintiffs/Petitioners V. SARAH E. FLYNN-TRIPP and JAMES WALSH, Defendants/Respondents : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA CIVIL ACTION - LAW :CUSTODY NO. 7- vZ ?? ??L ORDER OF COURT AND NOW, this 0 day of 2007, upon presentation and consideration of the within Petition for Special Relief, a rule is issued upon Defendants/Respondents to show cause why the relief requested should not be granted. RULE RETURNABLE at a hearing set for the C;c day of 2007 in Courtroom No. D- of the Cumberland County Courthouse at 1 Courthouse Square, Carlisle, PA 17013 at q"45 km- Pending the hearing, Plaintiffs/Petitioners shall exercise primary legal and physical custody of the child, namely Luke James Flynn, born October 28, 2001, pending further Order of Court or agreement of the parties. Neither party all remove the children from the Commonwealth until further Order of Court. BY THE Cc. Richard L. Webber, Jr., Esquire Attorney for Plaintiffs/Petitioners /Sarah E. Flynn-Tripp, Defendant/Respondent Pro se J. LL I 1/07 James Walsh, Defendant/Respondent Pro Se WEIGLE & ASSOCIATES, P.C. - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA 17257-1397 U C:D L - , 1 DORIS MAE HOLT-KENNEDY AND LEE E KENNEDY PLAINTIFF V. SARAH E. FLYNN-TRIPP AND JAMES WALSH DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA • 2007-6292 CIVIL ACTION LAW . IN CUSTODY ORDER OF COURT AND NOW, Wednesday, October 31, 2007 , upon consideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear before John J. Mangan, Jr., Esq. , the conciliator, at 4th Floor, Cumberland County Courthouse, Carlisle on Friday, December 07, 2007 at 2:00 PM for a Pre-Hearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute; or if this cannot be accomplished, to define and narrow the issues to be heard by the court, and to enter into a temporary order. All children age five or older may also be present at the conference. Failure to appear at the conference may provide grounds for entry of a temporary or permanent order. The court hereby directs the parties to furnish any and all existing Protection from Abuse orders, Special Relief orders, and Custody orders to the conciliator 48 hours prior to scheduled hearing. FOR THE COURT, By: /s/ zoft j. Mangan, Jr., Esq. ,,,,% Custody Conciliator ?` The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilites Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. YOU SHOULD TAKE THIS PAPER TO YOUR ATTORNEY AT ONCE. IF YOU DO NOT HAVE AN ATTORNEY OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 PIWAW *V --V-- e 0 . / - // O-,Pvr,e 7 0? k/m 1 30 V DORIS MAE HOLT-KENNEDY and LEE E. KENNEDY, Plaintiffs/Petitioners V. : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA CIVIL ACTION - LAW :CUSTODY SARAH E. FLYNN-TRIPP and JAMES WALSH, Defendants/Respondents : NO. 07-6292 Civil AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND SS Brooke L. Naugle, being duly sworn according to law, deposes and says that on November 2, 2007 a true and attested copy of Petition for Special Relief for Custody, and related Order of Court, dated November 1, 2007 was served upon the Defendant, Sarah E. Flynn-Tripp. Manner of service: by mailing the same postage paid, certified mail, addressee only, and return receipt requested, at Shippensburg, Pennsylvania, addressed as follows: Sarah E. Flynn-Tripp P.O. Box 635 Victorville, CA 92395 The return receipt signed by the Defendant is evidence of delivery to her and is attached hereto as "Exhibit A." I . - j - 4 1? ".. - 1?1_ 2teffNug . Sworn to,and subscribed before me WEIGLE & ASSOCIATES, P.C. - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG. PA 17257-1397 Notarial Seal Rhonda R. Wolford, Notary Publo ShWensburg Boro, Cumberland County My Commission Expires Jan. 20, 2009 ?fV DORIS MAE HOLT-KENNEDY and LEE E. KENNEDY, Plaintiffs/Petitioners V. : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA CIVIL ACTION - LAW :CUSTODY SARAH E. FLYNN-TRIPP and JAMES WALSH, Defendants/Respondents : NO. 07-6292 Civil PROOF OF SERVICE ¦ Complete Items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the mailplece, or on the front If space permits. 1. Article Addressed to: Sarah E. Flynn-Tripp PO Box 635 Victorville, CA 92395 ? Agent B. ? by (Ptfnted Name / I C. Date of Delivery D. Is delivery address different from hem 1? ? Yes If YES, enter delivery address below: ? No 3. Sepice Type CtrrdW Mail ? Mail E3 Registered Return Receiptfor M61d1srKfte ? Insured Mail ? C.O.D. 4. Restricted Delivery? (Extra Fee) es 2. Article Number 7003 0500 0000 8493 8214 (nand r ft m ta>wlb I -102596-02-M-1540 l " ru (Domestic Provided) CD For delivery information visit our website at www.uspsxo m o-, CQ Postage $ l O % p Certified Fee C3 Return Redept Fee Postm (Endorsement Required) r `? ! I I 7; 1 ResMcted Delivery Fee C J / / 0 (Endorsement Required) C3 Total Postage & Fees $ E IBIT m O Sent To o Sarah,--E. _ Flynn-Tripp------------------ -- -- -- -- - or PO Box No. MQ__BQ73".__ 35__ I A ff??ictorville, CA 92395 AW - 126 EAST KING STREET - SHIPPENSSURG, PA 17257-1397 ?.? r? S r-wa ---f ?' t -; + ! E--' ? s ? .? +? _,_ ? . ? I ?f ??? ? a? DORIS MAE HOLT-KENNEDY and LEE E. KENNEDY, Plaintiffs V. : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA : CIVIL ACTION - LAW :CUSTODY SARAH E. FLYNN-TRIPP and JAMES WALSH, Defendants : NO. 07-6292 Civil AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND SS Brooke L. Naugle, being duly sworn according to law, deposes and says that on November 2, 2007 a true and attested copy of Complaint for Custody, Notice, and related Order of Court, dated October 31, 2007 was served upon the Defendant, Sarah E. Flynn-Tripp. Manner of service: by mailing the same postage paid, certified mail, addressee only, and return receipt requested, at Shippensburg, Pennsylvania, addressed as follows: Sarah E. Flynn-Tripp P.O. Box 635 Victorville, CA 92395 The return receipt signed by the Defendant is evidence of delivery to her and is attached hereto as "Exhibit A." B o e L. Naug Sworn to and subscribed before me this day of Dec er, 2 N tary Pu lic o ar aT'9'eaT""?"?' Rhonda R. Wolford, Notary Public Sh"nsburg Boro, Cumberland County My Commissioc Expires Jan. 20, 2009 WEIGLE & ASSOCIATES. P.C. - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA 17257-1397 r 1 °' E_Ai DORIS MAE HOLT-KENNEDY and : IN THE COURT OF COMMON PLEAS LEE E. KENNEDY, : OF CUMBERLAND COUNTY, Plaintiffs : PENNSYLVANIA V. : CIVIL ACTION - LAW :CUSTODY SARAH E. FLYNN-TRIPP and JAMES WALSH, Defendants : NO. 07-6292 Civil PROOF OF SERVICE ¦ Complete items 1, 2, and 3. Also complete item 4 R Restricted Delivery is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the mallpiece, or on the front if space permits. 1. Article Addressed to: Sarah E. Flynn-Tripp PO Box 635 Victorville, CA 92395 Agent r- • C3 (t1 s • • rn co postage $ - t CI Certified Fee 102595-024A-1540 C3 P el?/ C3 Return Reciept Fee $ (Endorsement Required) .2, Cl Restdcted Delivery Fee " If •?? V CI (Endorsement Required) /0 7 C3 1 Total Postage & Fees $ M EXHIBIT r Cl La'w rah E. Flynn-Tripp --------------------------------------------------------- pp ------------------------------------------- CTORVILLE, CA 92395 V I WEIGLE & ASSOCIATES, PC, - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA 17257-1397 B. Rjt!i ph by (Printed Name) IF r* Date of Delivery D. Is delivery address different from Itern 1? ? Yes If YES, enter deiK%ry address below. ? No 3. Sayllbe Type Cavr,ed Mail ? Mail 0 Registered LPIR atom Receipt for Merchandise ? Insured Mail ? C.O.D. 4. Restricted DWv*y? P ft F.y es 2' "_''""'"wr_?_.. _ 7003 0500 0000 8493 8207 r'`: 6..„.? ...L.. ?y `7 ?' ? Cl r -? ? _y" 1 f , S,, i ,?? ?? `v ..? ? i `? A DORIS MAE HOLT-KENNEDY and LEE E. KENNEDY, Plaintiffs/Petitioners V. : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA : CIVIL ACTION - LAW :CUSTODY SARAH E. FLYNN-TRIPP and JAMES : DORIS MAE HOLT-KENNEDY and LEE E. KENNEDY, Plaintiffs/Petitioners V. : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, :PENNSYLVANIA CIVIL ACTION - LAW :CUSTODY SARAH E. FLYNN-TRIPP and JAMES WALSH, Defendants/Respondents : NO. 07-6292 Civil AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND SS Brooke L. Naugle, being duly sworn according to law, deposes and says that on October 30, 2007 a true and attested copy of Petition for Special Relief for Custody, and related proposed Order of Court, a true and attested copy of Complaint for Custody and proposed Order of Court was served upon the Defendant, Sarah E. Flynn-Tripp. Manner of service: by mailing the same postage paid, certified mail, addressee only, and return receipt requested, at Shippensburg, Pennsylvania, addressed as follows: Sarah E. Flynn-Tripp P.O. Box 635 Victorville, CA 92395 The return receipt signed by the Defendant is evidence of delivery to her and is attached hereto as "Exhibit A." Br L. Naugl Sworn to and subscribed before me this / day of November„ ?g07. Rhonda R. Wolford, Notary Public Shlppensbur® Boro, Cumberland County My Commission Expires Jan. 20, 2009 WEIGLE & ASSOCIATES. P.C. - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG. PA 17257-1397 iv ?V% ?s 4 r A DORIS MAE HOLT-KENNEDY and : IN THE COURT OF COMMON PLEAS LEE E. KENNEDY, : OF CUMBERLAND COUNTY, Plaintiffs/Petitioners : PENNSYLVANIA V. : CIVIL ACTION - LAW :CUSTODY SARAH E. FLYNN-TRIPP and JAMES WALSH, Defendants/Respondents : NO. 07-6292 Civil PROOF OF SERVICE ¦ Complete Items 1, 2, and 3. Also complete Item 4 If Restricted Delivery is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: A. Siypat M of 13 Agent X ? Addressee C. Date Delivery D. Is delivery address dftld *n Item 1? ? Yes If YES, enter delivery address below: ? No SARAH E. FLYNN-TRIPP PO BOX 635 VICTORVILLE, CA 92395 3. Se9fte Type Certified Mail ? WAS Mall 13 Registered qp* RwWpt for Merchandise ? Insured Mail E3 C.O.D. 4. Restricted Delivery? (Extra Fee) mi< 2- AmUdef*anbar 7003 05130 01300 8493 8245 (fhnalYr Aom ar?Mlr I Ralum Reoelpt 1025915-M401.1540 ru (Domestic CO i b i i it t For delivery informa t on v t our we s s www.usps.com,, e a s - C3 $ / Postage -- -- C3 Certified Fee ry / R i F , C3 ec ept ee Return re (Endorsement Required) r3 Re&I ted Delivery Fee / / " Lr'I (Endorsement Regwired) - r D Total Postage & Fees $ O ?_- M C3 Sent To ° Flynn-Tri Sarah F1Xnn-Tri pp r` Street, c.----------- - -------- ED__Box.-_fi35----- ---------------- "'Y "'"Victorville, CA 92395 FEXHIBIT WEIGLE & ASSOCIATES. P.C. - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA 17257-1397 ?? ?, ?t r m ?-?• ?.' ' _ , t...„ x_ ,--,?. ,.; ? Cam: ? r- ? -,-, ?.?...,? Ali _k:._.. tom. (?f ?9 .r F_ r (_.% ?' ? .?. - e l ?t " ? __ {?. DORIS MAE HOLT-KENNEDY and, LEE E. KENNEDY, Plaintiffs/Respondents V. SARAH E. FLYNN-TRIPP and JAMES WALSH, Defendants/Petitioners IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 2007 - 6292 - CIVIL TERM IN CUSTODY PETITION TO MODIFY CUSTODY AND NOW comes the Defendant/Petitioner, Sarah E. Tripp, by her attorneys, Irwin & McKnight, and presents the following Petition to Modify Custody. 1. The Petitioner is Sarah E. Tripp, an adult individual residing at 13861 Victoria Drive, Victorville, California 92395 and with a mailing address of P. O. Box 635 Victorville, California 92395. 2. The Respondent is Doris Mae Holt-Kennedy and Lee E. Kennedy, adult individuals residing at 515 Big Spring Road, Newville, Cumberland County, Pennsylvania 17241. 3. On October 9, 2007, the Petitioner attempted to obtain custody of the Petitioner's son, Luke James Flynn, from the Respondent. The Respondent failed to give up custody of the minor child to the Petitioner. 4. The Petitioner, Sarah E. Tripp, seeks the return of her son, Luke James Flynn, with primary physical custody and primary legal custody be awarded to Petitioner. 5. The Petitioner, Sarah E. Tripp, requests that said child be permitted to have a period of temporary custody with his maternal grandmother of one month each summer with the costs of air transportation to be paid by the grandmother. 6. The Petitioner desires primary physical custody and primary legal custody of said child. 7. The best interests and permanent welfare of the minor child requires that the Court grant the Petitioner's request as set forth above. WHEREFORE, Petitioner, Sarah E. Tripp, respectfully requests that she retain primary physical custody and primary legal custody of Luke James Flynn, as provided herein, a period of temporary custody with his maternal grandmother of one month each summer with the costs of air transportation to be paid by the grandmother. By: Respectfully submitted, 60 West Pomfret St eef Carlisle, Pennsylvania 17013-3222 (717) 249-2353 Supreme Court I. D. No. 25476 Date: December 6, 2007 IRWIN & McKNIGHT VERIFICATION The foregoing Petition to Modify Custody is based upon information which has been gathered by counsel and myself in the preparation of this action. I have read the statements made in this document and they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsification to authorities. S H E. TRIPP Date: December 6, 2007 O O G -?' ___a ?? i__ --r-: ? ? _ ?" ? ?. ! ',) ? ? ? Ci'Y ?_. , ? , mod) Y. ,? ... 'T 1 f? ?.3 "? ?;, DORIS MAE HOLT-KENNEDY and, LEE E. KENNEDY, Plaintiffs/Respondents V. SARAH E. FLYNN-TRIPP and JAMES WALSH, Defendants/Petitioners IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 2007 - 6292 - CIVIL TERM IN CUSTODY PRAECIPE FOR ENTRY OF APPEARANCE To Curtis R. Long, Prothonotary: Please enter my appearance on behalf of the defendant, SARAH E. TRIPP, in the above captioned case. Respectfully submitted, By: IRWIN & Marcus kmfi M `ght, rfl? Esquire 60 West t Street Carlisle, Penns 013 (717) 249-2353 Attorney for defendant Date: December 6, 2007 DORIS MAE HOLT-KENNEDY and, LEE E. KENNEDY, Plaintiffs/Respondents V. SARAH E. FLYNN-TRIPP and JAMES WALSH, Defendants/Petitioners IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 2007 - 6292 - CIVIL TERM IN CUSTODY CERTIFICATE OF SERVICE I, Marcus A. McKnight, III, Esquire, hereby certify that a copy of attached Praecipe for Entry of Appearance was served upon the following by depositing a true and correct copy of the same in the United States mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and addressed as follows: Richard L. Webber, Jr., Esq. Weigle & Associates, P.C. 126 East King Street Shippensburg, PA 17257-1397 IRWIN & McKNIGHT By: Marcus . McKni,' III, Esquire 60 West Pomfret Street Carlisle, PA 17013 (717) 249-2353 Supreme Court I.D. No. 25476 Date: December 6, 2007 Fri T n DORIS MAE HOLT-KENNEDY AND LEE E KENNEDY PLAINTIFF V. SARAH E. FLYNN-TRIPP AND JAMES WALSH DEFENDANT . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA • 2007-6292 CIVIL ACTION LAW . IN CUSTODY ORDER OF COURT AND NOW, Wednesday, December 12, 2007 , upon consideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear before John J. Mangan, Jr., Esq. , the conciliator, at 4th Floor, Cumberland County Courthouse, Carlisle on Wednesday, January, 16, 2008 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. 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/ jOhn,L Mandan, Jr., Esg. 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 1.7013 Telephone (717) 249-3166 ?l a: ino i N? DEC 112007 DORIS MAE HOLT-KENNEDY and LEE E. KENNEDY : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA V. : No. 07-6292 Civil Term SARAH E. FLYNN-TRIPP and JAMES WALSH : ACTION IN CUSTODY Prior Judge: Edgar B. Bayley, P.J. COURT ORDER AND NOW, this J eday of December, 2007, upon consideration of the attached Custody Conciliation Report, it is ordered and directed that: 1. This Order is entered pursuant to a Custody Concilia ' n Conference. A Custody Hearing is hereby scheduled on the (` f day of 2008 at & q -5 am/pm in Courtroom number 2 in the Cumberland C ty Court of Common Pleas, Carlisle, PA 17013 at which time testimony will be taken. For purposes of this hearing, the Mother shall be deemed to be the moving party and shall proceed initially with testimony. Counsel for each party shall file with the Court and opposing counsel a Memorandum setting forth each party's position on custody, a list of witnesses who will be expected to testify at the hearing and a summary of the anticipated testimony of each witness. These Memoranda shall be filed at least ten days prior to the hearing date. 2. Legal and Physical Custody: Pending the hearing and/or further Order of Court, Plaintiffs Doris M. Holt-Kennedy and Lee E. Kennedy shall exercise primary legal and physical custody of the Child, Luke J. Flynn, born October 28, 2001. 3. The Mother, Sarah E. Flynn-Tripp, shall have visitation with the Child on 12/7/07 from 4:00 pm until 9:00 pm at Plaintiffs' residence and on 12/8/07 from 9:00 am until 2:00 pm at Plaintiffs' residence. It is understood that Plaintiffs shall allow Mother to have quality time with the Child without unduly interfering with said time as long as Mother is interacting appropriately with the Child. 4. No party to this action shall remove Luke J. Flynn from the Commonwealth until further Order of Court. 5. Telephone contact between the Child and the Mother shall be liberal as agreed upon between the parties. 6. Neither party may say or do anything nor permit a third party to do or say anything that may estrange the Child from the other party, or injure the opinion of the Child as to the other party, or may hamper the free and natural development of the Child's love or affection for the other party. a 7. The parties may modify this Order by mutual agreement in writing. In the absence of mutual consent, the terms of this Order shall control. Cc: c d L. Webber, Esquire, McKnight, Esquire Mangan, Esquire A 126 East King Street, Shippensburg, PA 17257 co N ? y DORIS MAE HOLT-KENNEDY and LEE E. KENNEDY V. SARAH E. FLYNN-TRIPP and JAMES WALSH Prior Judge: Edgar B. Bayley, P.J. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : No. 07-6292 Civil Term : ACTION IN CUSTODY CONCILIATION CONFERENCE SUMMARY REPORT IN ACCORDANCE WITH THE CUMBERLAND COUNTY CIVIL RULE OF PROCEDURE 1915.3-8(B), the undersigned Custody Conciliator submits the following report: 1. The pertinent information pertaining to the child who is the subject of this litigation is as follows: Name Date of Birth Currently in the Custody of Luke James Flynn 10/28/ 2001 Maternal grandmother and step-grandfather 2. A Conciliation Conference update was held on December 07, 2007 with the following individuals participating: The maternal grandmother, Doris Mae Holt-Kennedy and step-grandfather, Lee E. Kennedy, with their counsel, Richard L. Webber, Jr., Esquire The Mother, Sarah E. Flynn-Tripp, with her counsel, Marcus McNight, Esquire The Father, James Walsh, did not appear. 3. The Honorable Edgar B. Bayley, P.J. previously entered an Order of Court dated November 1, 2007 whereby "Plaintiffs/Petitioners shall exercise primary legal and physical custody of the child pending further Order of Court or agreement of the parties. Neither party shall remove the children [sic] from the Commonwealth until further Order of Court." 4. The maternal grandmother and step-grandfather's position on custody is as follows: In June of 2005, Mother executed a custody agreement whereby Mother voluntarily granted custody of Luke James Flynn to Doris Holt- Kennedy. The Child has solely been in the custody of Plaintiffs for two and one-half years; as such, Plaintiffs' status of in loco-parentis is not in dispute. The Child allegedly has a very strong bond with his grandparents and Plaintiffs assert that the Child is quite fearful of being removed from Plaintiffs' custody. Plaintiffs assert that the Child is thriving in their care and wish the Child to remain in their custody. In October 2007, Defendant Mother and her husband arrived from California and demanded the Child return to California with them. Plaintiffs refused because it is their belief that the Child remaining with them would be in the Child's best interest. Plaintiffs are apprehensive that should Mother be allowed unsupervised contact with the Child, Mother may return to California with the Child. Mother's position is as follows: Mother requests that the Child return to her custody in California and is willing to allow maternal grandparents time with the Child during the summer. Mother asserts that the transfer of custody via the agreement was intended to be temporary for the summer of 2005 and that maternal grandmother and step-grandfather are hindering Mother's ability to regain custody of the Child. Mother reports that she and her husband are gainfully employed and have the capability to properly raise the Child. Mother asserts that she is willing to have a judicial determination regarding where the Child should reside. 6. The Conciliator recommends an Order in the form as attached scheduling a Hearing and entering an Order of Court granting Plaintiffs primary legal and physical custody of the Child subject to Mother's supervised visitation while in the Commonwealth. It is the Conciliator's belief that this would be in the Child's best interest. It is expected that the Hearing will require one day. 7. The proposed recommended Order may contain a requirement that the parties file a pre-trial memorandum with the Judge to whom the matter has been assigned. Date: December 9, 2007 Jo J angan, Esgw?. C t?y Conciliator l DORIS MAE HOLT-KENNEDY AND IN THE COURT OF COMMON PLEAS OF LEE E. KENNEDY, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. SARAH E. FLYNN-TRIPP AND JAMES WALSH, DEFENDANTS AND NOW, this day of February, 2008, the custody hearing scheduled for February 14, 2008, is cancelled and rescheduled to commence at 9:30 a.m., Thursday, February 28, 2008, in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania. ZRichard L. Webber, Esquire ?Marcus McKnight, Esquire :sal 07-6292 CIVIL TERM ORDER OF COURT they the B z Edgar B. Bay' f(tv ley, J. CC? Es rna t LL a.?71v?3 LLJ cl: u d` LL1 t% J-U LL 3,e [] L- ° Cc7 C:::D N u DORIS MAE HOLT-KENNEDY IN THE COURT OF COMMON PLEAS OF AND LEE E. KENNEDY, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. SARAH E. FLYNN TRIPP AND JAMES WALSH, DEFENDANTS 07-6292 CIVIL TERM IN RE: CUSTODY ORDER OF COURT AND NOW, this ay of March, 2008, the complaint of Doris Mae Holt- Kennedy and Lee E. Kennedy for primary physical custody of Luke James Flynn, born October 28, 2001, IS DENIED. Unless the mother and the grandmother agree to another method of transfer, once this kindergarten year is completed, upon one week prior notice by Sarah Flynn Tripp to Doris Mae Holt-Kennedy, the mother may pick up Luke in Newville and take him to her home in Victorville, California, where she shall have custody. By the Court, Edgar B. Bayley, J. ,Richard L. Webber, Jr., Esquire For Plaintiffs Marcus A. McKnight, III, Esquire 4 For Sarah E. Flynn Tripp :sal co a LU cl- .« r ZV ..:... ?.i1 LtJ Ll- CC) o C"v DORIS MAE HOLT-KENNEDY IN THE COURT OF COMMON PLEAS OF AND LEE E. KENNEDY, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. SARAH E. FLYNN TRIPP AND JAMES WALSH, DEFENDANTS 07-6292 CIVIL TERM IN RE: CUSTODY OPINION AND ORDER OF COURT Bayley, J., March 20, 2008:-- On October 27, 2007, Doris Mae Holt-Kennedy, age 60, and her husband Lee E. Kennedy, age 55, filed a complaint in custody against her daughter Sarah E. Flynn Tripp, age 42, and James Walsh, age 56. Tripp and Walsh are the parents of Luke James Flynn, age 6, born October 28, 2001. A hearing was conducted on February 28, 2008. Luke was born in Scranton, Pennsylvania. His parents, who never married, lived together after his birth.' They separated in August, 2003, when the mother took Luke to live in the home of her maternal grandmother, Doris Fries, in Victorville, California.2 The father never saw Luke again until the hearing on this case on February 28, 2008. Nor has he provided any support for him, or contacted him in any way. ' The mother was married to Patrick Flynn before she lived with James Walsh. Luke is her only child. 2 Doris Kennedy was present when Luke was born. When the mother, Luke and the father lived in Scranton she would see Luke about once a month. 07-6292 CIVIL TERM The mother and Luke lived in her grandmother's home in Victorville until January, 2004, when they moved into an apartment in the area. The mother was involved with Daniel Tripp and he often stayed in her home. In June of 2005, the mother was having significant financial difficulties and about to be evicted from a home she and Luke had moved into after living in the apartment. She called her mother who lives in Newville, Cumberland County. She told her that Luke was aggressive and that she could not handle him. She asked her to come to California and take Luke to Pennsylvania. Luke's grandmother went to California and took the following custody agreement which the mother signed on June 19, 2005. KNOW ALL MEN BY THESE PRESENTS, that I, SARAH E. FLYNN TRIPP, of 22839 Lone Eagle Road, Apple Valley, California, the natural parent of the minor child, LUKE JAMES FLYNN, born October 28, 2001, hereby grant, give and set over custody of said LUKE JAMES FLYNN, to DORIS MAE HOLT-KENNEDY, of 430 Shippensburg Road, Newville, Pennsylvania, to exercise such custody while said child is in her care and control to the same extent and with the same rights, privileges, duties and responsibilities as would otherwise be vested in the above- named natural parent, SARAH E. FLYNN TRIPP, of the said LUKE JAMES FLYNN. Said duties and responsibilities to include but not be limited to provision of proper health and medical care, authorization of medical care including consent and authorization for all necessary, ordinary and extraordinary medical care provided by a physician, hospital, clinic, or other properly trained medical personnel. And further imposing upon DORIS MAE HOLT-KENNEDY all of the responsibilities of proper supervision and care to secure the best interests and welfare of said minor child. The mother testified that it was her intent to have her mother care for Luke until she was able to adequately care for him, which she felt would be by the end of the summer of 2005. The grandmother testified that it was her intent to give Luke back to -2- 07-6292 CIVIL TERM his mother when she got her life together. On June 22, 2005, the grandmother brought Luke into her three bedroom home with her husband Lee Kennedy.3 Luke was very aggressive; he would hit his grandmother; he was afraid; and he often cried. He was not potty trained. He was thin but physically well. The grandmother had Luke evaluated at the Capital Area Intermediate Unit. They accepted him for enrollment for speech and behavioral therapy which began in August, 2005. Luke's aggressiveness quickly dissipated. When he started at the Capital Area Intermediate Unit, he had very limited vocabulary and speech. Luke made good progress there, and he started kindergarten in August, 2007. He is doing alright although it takes him more time to comprehend things. He works hard but has trouble remembering. He has two special speech sessions in kindergarten each week. His kindergarten teacher testified that he was not yet close to not needing additional instruction. The school has an action plan to improve his writing and vocabulary. While it is too early to tell, it may be appropriate for Luke to repeat kindergarten next year.4 The grandmother testified that for the first year Luke was with her the mother would call from California approximately once a month. She would ask if Luke was s She married Kennedy in 1985. He works for Lucent Technology. The grandmother's first husband, who died, adopted Sarah. The grandmother works by providing care each day for two hours in the home of an elderly woman. 4 The grandmother attends Luke's kindergarten class twice a week. She takes him to church each week where he interacts well with children in his Sunday school class. -3- 07-6292 CIVIL TERM happy but never made inquiry into the details of his life. After the first year the mother called more often. The mother never sent any cards or gifts until the second year. She never mentioned regaining custody until just before Luke started kindergarten in the fall of 2007. When the grandmother told the mother that Luke was still having issues, the mother said that she would still like to have Luke, but no date was set. On October 9, 2007, the mother, who had not seen him since July 19, 2005, came to the grandmother's home unannounced and demanded to immediately take Luke to California. The mother had taken a bus from California to Harrisburg, and a taxi to the grandmother's home. The taxi driver was waiting. Luke was scared and crying. The grandmother would not let the mother take him. The police were called. Things finally calmed down when the mother agreed to leave without Luke. The grandmother then allowed her to come into her home where the mother spent some time with Luke. After the mother left, she called her husband, Daniel Tripp, who was in California.' He called the grandmother, was very hostile, and made threats against her. The mother returned to California. She next called Luke on October 27, 2007, which was the day before his sixth birthday. The mother testified that she has always called Luke regularly. She testified that she only signed the custody agreement because the grandmother had to have legal ' She married Tripp on April 28, 2006. -4- 07-6292 CIVIL TERM authority to obtain medical services for him. She testified that at the end of the summer of 2005, the grandmother asked to extend her time with Luke until January, 2006, and she agreed. She testified that what triggered her coming to Pennsylvania on October 9, 2007, was that two days earlier she received paperwork from the grandmother seeking her consent to an adoption. The mother came to Pennsylvania again in December, 2007. On December 7, the grandmother allowed her to spend time in her home with Luke between 4:00 p.m. and 9:00 p.m., during which they had dinner. The mother spent time with Luke at the grandmother's home the next day between 9:00 a.m. and 2:00 p m. The mother was with Luke again when this hearing was conducted at the end of February, 2008. The mother has been calling Luke each Sunday evening. The grandmother testified that Luke knows his mother and loves her. She testified that Luke is now a happy little boy but he still has issues. She feels that he needs more help to get him to appropriate age level. Daniel Tripp, age 48, has a 2003 conviction for assault with a deadly weapon (a vehicle) for which he went to prison. He was paroled in July, 2004, but he went back to prison for six months on a parole violation between October, 2005 and March, 2006. His current parole will end in April, 2008. He has three children, none of whom he sees. The mother testified that Luke got along with him during the period she was seeing him before Luke came to Pennsylvania. The testimony of Daniel Tripp was taken by phone. -5- 07-6292 CIVIL TERM His rambling discourses were to a great extent unintelligible.s Doris Fries, age 78, Luke's feisty great-grandmother, testified that she raised the mother from ages thirteen to twenty-one. The mother contacted her in the summer of 2003 and asked if she and Luke could live with her and start a new life. Fries agreed. After the mother moved out of the Fries' home to an apartment in January, 2004, she struggled. Fries testified that the mother could not handle Luke and ultimately decided to let him live with the grandmother in Pennsylvania so that she could get along with her life. It was Fries impression that, at that time, the mother was more interested in Daniel Tripp then she was in Luke. Fries testified that the mother now comes to her home at least once a week. She often asks to borrow money and asks for food.' The mother is a manager/sales associate for a newspaper where she has worked for the last five years. Tripp works in a warehouse, and has a paper route, for the same paper. She earns approximately $3,800 a month and he earns approximately $1,500 a month. They live in a leased three bedroom home in Apple Valley which is about seven miles from the great-grandmother's home in Victorville. Apple Valley is in ' Luke's father, James Walsh, testified after he heard the testimony of the mother and grandmother. He made the unbelievable statement that if Luke could not live with his mother, he would prefer that he be in foster care rather than with his grandmother. This from a man who has not seen his son for over five years, not contacted him in any way, and not provided any support to the mother or the grandmother for his care. ' In rebuttal, the mother testified that she once asked Fries for $20. She testified that Fries goes to Food Pantries so she has extra food. The mother knows a lot of young girls where she works so when Fries offered, she would take the food, but it was not for her. She testified "I just didn't want to make her feel bad about that, but it was not for me." -6- 07-6292 CIVIL TERM the high desert in southern California. The mother wants to enroll Luke in a private Christian (Baptist) school in Apple Valley that has all grades through 12. The paramount concern in a child custody case is the best interest of the child based on a consideration of all factors that legitimately affect the child's physical, intellectual, moral and spiritual well-being. Swope v. Swope, 689 A.2d 264 (Pa. Super. 1997). In K.B. II v. C.B.F., 833 A.2d 767 (Pa. Super. 2003), the Superior Court of Pennsylvania stated: With regard to a custody challenge by a third party, our Pennsylvania courts have expressed a strong preference for the rights of biological parents. In Charles v. Stehlik, 560 Pa. 334, 744 A.2d 1255 (2000), our Supreme Court articulated this view, stating: It is axiomatic that in custody disputes, "the fundamental issue is the best interest of the child." In a custody contest between two biological parents, "the burden of proof is shared equally by the contestants...." Yet, where the custody dispute is between a biological parent and a third party, the burden of proof is not evenly balanced. In such instances, "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. Thus, even before the proceedings start, the evidentiary scale is tipped, and tipped hard, to the [biological] parents' side." Id. at 339, 744 A.2d at 1258 (2000) (citations and quotations omitted); see also T.B. v. L.R.M., 753 A.2d 873 (Pa.Super.2000) (holding that biological parents have a prima facie right to custody over third persons) afPd, 567 Pa. 222, 786 A.2d 913 (2001). (Emphasis added.) The mother maintains that her life has stabilized and that she now has an appropriate home with the financial means to care for Luke. The grandmother maintains that the mother has not made sufficient progress to adequately care for Luke. There is no doubt that the mother was not able to provide adequate care for Luke -7- 07-6292 CIVIL TERM leading up to the transfer to his grandmother in June, 2005. The grandmother created a stable and organized structure for Luke which quickly resulted in the cessation of his behavioral problems. She immediately obtained the services that were necessary to help him, and he is still in need of special services. Luke was just short of three years eight months old when the mother turned him over to the grandmother. On October 9, 2007, when the mother showed up unannounced at the grandmother's home and demanded to take Luke to California, he was almost six years old and she had not seen him for a little over two years and three months. No matter how frustrated the mother may have been upon learning that the grandmother wanted to keep Luke permanently, which was a change from her position at the time she took Luke, this precipitous action was not well thought out. Likewise, the grandmother should have discussed with the mother her desire to adopt Luke rather than taking the precipitous action of sending her a form to consent. What has changed since Luke came to Pennsylvania on June 22, 2005, is that the mother has married Daniel Tripp and together they now have stabilized their lives with sufficient earnings to maintain an adequate leased home in Apple Valley. The instability that led the mother to ask the grandmother to take Luke for what both considered a temporary period has ended. The issue; therefore, is not whether the grandmother would make a better parent than the mother. Rather, it is whether the mother now has the ability to adequately care for Luke. We believe she can and that she can address his special needs. The mother has not forfeited her prima facie right -8- 07-6292 CIVIL TERM to custody of Luke. There are no convincing reasons that Luke's best interest will be served by awarding custody to the grandmother. Given the circumstances, however, we will not order a transfer to the mother until Luke completes this kindergarten year. For the foregoing reasons, the following order is entered.8 ORDER OF COURT AND NOW, this -701-N day of March, 2008, the complaint of Doris Mae Holt- Kennedy and Lee E. Kennedy for primary physical custody of Luke James Flynn, born October 28, 2001, IS DENIED. Unless the mother and the grandmother agree to another method of transfer, once this kindergarten year is completed, upon one week prior notice by Sarah Flynn Tripp to Doris Mae Holt-Kennedy, the mother may pick up Luke in Newville and take him to her home in Victorville, California, where she shall have custody. The grandmother did not seek partial physical custody in case Luke was returned to the custody of his mother. She had standing to seek partial physical custody. 23 Pa.C.S. § 5313(a). The mother testified that she would agree to the grandmother having some partial physical custody of Luke. That is certainly in Luke's best interest. -9- Edgar B. Bayley, J. 07-6292 CIVIL TERM Richard L. Webber, Jr., Esquire For Plaintiffs Marcus A. McKnight, III, Esquire For Sarah E. Flynn Tripp :sal -10- DORIS MAE HOLT-KENNEDY and LEE E. KENNEDY, Plaintiffs V. SARAH E. FLYNN-TRIPP and JAMES WALSH, Defendants : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA :07-6292 CIVIL TERM NOTICE OF APPEAL Notice is hereby given that Doris Mae Holt-Kennedy and Lee E. Kennedy, Plaintiffs above named, hereby appeal to the Superior Court of Pennsylvania from the Order of Court entered in this matter on the 20th day of March, 2008. This Order has been entered in the docket as evidenced by the attached copy of the docket entry. WEIGLE & ASSOCIATES, P.C. Date: L/ / (ok Richard L. Webber, Jr., squire Attorney ID # 49634 126 East King Street Shippensburg, PA 17257 Telephone: (717)532-7388 WEIGLE & ASSOCIATES, P.C. - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA 17257-1397 PROOF OF SERVICE I hereby certify that I am this day serving the foregoing document upon the persons and in the manner indicated below which service satisfies the requirements of Pa.R.A.P. 121: Service by first class mail addressed as follows: Marcus A. McKnight, III, Esquire (717) 249-2353 60 West Pomfret Street Carlisle, PA 17013-3222 (Counsel for Defendant, Sarah E. Tripp) James Walsh 938 Sanderson Street Throop, PA 18512 Honorable Edgar N. Bayley Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 Court Reporter Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 Dated: (-4 ? () Richard L. Webber, Jr., Esquire Attorney for Plaintiffs I.D. #49634 126 East King Street Shippensburg, PA 17257 Telephone 717-532-7388 WEIGLE & ASSOCIATES, P.C. - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA 17257-1397 PYS511 Cumberland County Prothonotary's Office Page 1 Civil Case Print 2007-06292 HOLT-KENNEDY DORIS MAE ET AL (vs) FLYNN-TRIPP SARAH E ET AL Reference No..: Filed........: 10/26/2007 Case Type.....: COMPLAINT - CUSTODY J d Time.........: 12:04 u gment......: 00 Execution Date 0/00/0000 Judge Assigned: BAYLEY EDGAR B Jury Trial.... Disposed Desc.: ------------ Ca C t Disposed Date. 0/00/0000 se ommen s ------------- Higher Crt 1.: Higher Crt 2.: ******************************************************************************** General Index Attorney Info HOLT-KENNEDY DORIS MAE PLAINTIFF WEBBER RICHARD L JR 515 BIG SPRING ROAD NEWVILLE PA 17241 KENNEDY LEE E PLAINTIFF WEBBER RICHARD L JR 515 BIG SPRING ROAD NEWVILLE PA 17241 FLYNN-TRIPP SARAH E DEFENDANT MCKNIGHT MARCUS A III 13861 VICTORIA DRIVE VICTORVILLE CA 92395 WALSH JAMES DEFENDANT UNKNOWN DUNMORE PA 18509 ******************************************************************************** * Date Entries ******************************************************************************** FIRST ENTRY - - - 10/26/2007 COMPLAINT - CUSTODY FILED BY RICHARD L WEBBER, JR ESQ FOR PLFF ------------------------------------------------------------------- 10/26/2007 PETITION FOR SPECIAL RELIEF FOR CUSTODY PENDING THE CONCILIATION CONFERENCE OR FURTHER ORDER ------------------------------------------------------------------- 11/01/2007 ORDER OF COURT - DATED 11/1/107 - IN RE PETITION FOR SPECIAL RELIEF - RULE IS ISSUED UPON DEFENDANTS/RESPONDENTS TO SHOW CAUSE WHY THE RELIEF REQUESTED SHOULD NOT BE GRANTED - RULE RETURNABLE AT A HEARING 12/69/07 8:45 AM CR 2 - PENDING THE HEARING PLAINTIFFS/PETITIONERS SHALL EXERCISE PRIMARY LEGAL AND PHYSICAL CUSTODY OF THE CHILD PENDING FURTHER ORDER OF COURT OR AGREEMENT OF THE PARTIES - NEITHER PARTY SHALL REMOVE THE CHILDREN FROM THE COMMONWEALTH UNTIL FURTHER ORDER OF COURT - BY EDGAR B BAYLEY J - COPIES MAILED 11/1/07 ------------------------------------------------------------------- 11/01/2007 ORDER OF COURT - DATED 10/31/07 - IN RE COMPLAINT FOR CUSTODY - PREHEARING CUSTODY CONFERENCE 12/7/07 2 PM 4TH FLOOR CUMBERLAND COUNTY COURTHOUSE - BY JOHN J MANGAN JR ESQ CUSTODY CONCILIATOR - COPIES MAILED 11/1/07 ------------------------------------------------------------------- 12/04/2007 AFFIDAVIT OF SERVICE - PETITION FOR SPECIAL RELIEF AND ORDER OF COURT DATED 11/1/07 - BY BROOKE L NAUGLE ------------------------------------------------------------------- 12/04/2007 AFFIDAVIT OF SERVICE - COMPLAINT FOR CUSTODY AND ORDER OF COURT DATED 10/31/07 - BY BROOKE L NAUGLE ------------------------------------------------------------------- 12/04/2007 AFFIDAVIT OF SERVICE - PETITON FOR SPECIAL RELIEF, ORDER OF COURT, COMPLAINT FOR CUSTODY AND ORDER OF COURT - BY BROOKE L NAUGLE ------------------------------------------------------------------- 12/06/2007 PETITION TO MODIFY CUSTODY - BY MARCUS A MCKNIGHT III ATTY FOR PLFF ------------------------------------------------------------------- 12/06/2007 PRAECIPE FOR ENTRY OF APPEARANCE - BY MARCUS A MCKNIGHT III ATTY FOR DEFT ------------------------------------------------------------------- 12/12/2007 ORDER OF COURT - 12/12/07 IN RE: CUSTODY - PREHEARING CUSTODY CONFERENCE 1/16/08 AT 9:00 AM 4TH FLOOR CUMBERLAND COUNTY COURTHOUSE - BY JOUH J MANGAN JR ESQ CUSTODY CONCILIATOR ------------------------------------------------------------------- 12/14/2007 COURT ORDER - 12/14/07 IN RE: CUSTODY CONCILIATION REPORT - TODY ON CONFE AMSCR22 -CBYCEDGARIB BAYYLEYRJN- COPIESNMAILEDD12/D14/074/08 AT 8:45 PYS57.1 Cumberland County Prothonotary's Office Page 2 Civil Case Print 2007-06292 HOLT-KENNEDY DORIS MAE ET AL (vs) FLYNN-TRIPP SARAH E ET AL Reference No... Filed......... 10/26/2007 Case Type.....: COMPLAINT - CUSTODY Time...... ..: 12:04 Judgment......: 00 Execution Date 0/00/0000 Judge Assigned: BAYLEY EDGAR B Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: ------------------------------------------------------------------- 2/07/2008 ORDER OF COURT - 2/7/08 IN RE: CUSTODY - THE CUSTODY HEARING SCHEDULED FOR 2/14/08 IS CANCELLED AND RESCHEDULED TO COMMENCE AT 9:30 AMJ2/2C/08 INMCR2 CU2BER08ND COUNTY COURTHOUSE - BY EDGAR B ------------------------------------------------------------------- 3/20/2008 OPINION AND ORDER OF COURT - 3NNNN20/08 IN RE: CUSTODY COMPLAINT -THE COMPLAINT OF DORIS MAE HOLT-KEEDY AND LEE E KENNEDY FOR PRIMARY PHYSICAL CUSTODY IS DENIED - BY EDGAR B BAYLEY J - COPIES MAILED 3/20/08 - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * Fees & Debits Beq*Bal***P*ymts/Adl End Bal ******************************** **** ****** ******************************* CUSTODY AGMT 135.00 135.00 .00 TAX ON AGMT .50 .50 .00 SETTLEMENT 8.00 8.00 .00 AUTOMATION FEE 5.00 5.00 .00 JCP FEE 10.00 10.00 .00 CUSTODY FEE 5.20 5.20 .00 CUSTODY FEE-CO 1.30 1.30 .00 SPEC RELIEF CUS 70.00 70.00 .00 MODIFICATION CU 70.00 70.00 .00 SUBPOENA 21.00 -------------- 21.00 - .00 326.00 --------- --- 326.00 --------- .00 ******************************************************************************** * End of Case Information ******************************************************************************** THE COPY FROM AtWik in TN"fiywhMW. I ho VA mY 1 0 ind the 00d veld , Fa 44 J T) GIN 4 LA h g n 11 DORIS MAE HOLT-KENNEDY and LEE E. KENNEDY, Plaintiffs V. SARAH E. FLYNN-TRIPP and JAMES WALSH, Defendants : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA :07-6292 CIVIL TERM REQUEST FOR TRANSCRIPT A Notice of Appeal having been filed in this matter, the official court reporter is hereby requested to produce, certify and file the transcript in this matter in conformity with Rule 1922 of the Pennsylvania Rules of Appellate Procedure. WEIGLE & ASSOCIATES, P.C. Date: I Y / l D 5 By: Richard L. Webber, Jr., Esquire Attorney ID # 49634 126 East King Street Shippensburg, PA 17257 Telephone: (717)532-7388 WEIGLE & ASSOCIATES, P.C. - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA 17257-1397 I PROOF OF SERVICE I hereby certify that I am this day serving the foregoing document upon the persons and in the manner indicated below which service satisfies the requirements of Pa.R.A.P. 121: Service by first class mail addressed as follows Marcus A. McKnight, III, Esquire (717) 249-2353 60 West Pomfret Street Carlisle, PA 17013-3222 (Counsel for Defendant, Sarah E. Tripp) James Walsh 938 Sanderson Street Throop, PA 18512 Honorable Edgar N. Bayley Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 Court Reporter Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 Dated: l t , I f '? Richard L. Webber, Jr., Esquire Attorney for Plaintiffs I.D. #49634 126 East King Street Shippensburg, PA 17257 Telephone 717-532-7388 WEIGLE & ASSOCIATES, P.C. - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA 17257-1397 l,vF _, co p-) .1, ;? 9-1 Ctv;l Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 c -------------------------------------------- 3014-10/99 10/1/99 COMMONWEALTH OF PENNSYLVANIA Karen Reid Bramblett, Esq. Prothonotary James D. McCullough, Esq. Deputy Prothonotary ?w e Superior Court of Pennsylvania Middle District April 24, 2008 100 Pine Street. Suite 400 Harrisburg. PA 17101 717-772-1294 www. superior. court statepa us Re: 723 MDA 2008 Doris Mae and Lee E. Kennedy, Appellants V. Sarah E. Flynn-Tripp, and James Walsh Dear : Enclosed please find a copy of the docket for the above appeal that was recently filed in the Superior Court. Kindly review the information on this docket and notify this office in writing if you believe any corrections are required. Appellant's counsel is also being sent a Docketing Statement, pursuant to Pa.R.A.P. 3517, for completion and filing. Please note that Superior Court Dockets are available on the Internet at the Web site address printed at the top of this page. Thank you. Very truly yours, Karen Reid Bramblett, Esq. Prothonotary ALV cc: Marcus A. McKnight, III, Esq. Mr. James Walsh Court Reporter Court Reporter The Honorable Edgar B. Bayley President Judge Mr. Curtis R. Long Prothonotary Carbon Copy Recipient List Addressed To: Richard Lee Webber, Jr., Esq. Weigle & Associates, P.C. 126 E King Street Shippensburg, PA 17257-1397 Carbon Copied: Mr. James Walsh 938 Sanderson Street Throop, PA 18512 Marcus A. McKnight, III, Esq. Irwin & McKnight 60 W Pomfret Street Carlisle, PA 17013-3222 Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Court Reporter Court Reporter Court of Common Pleas of Cumberland County Courthouse, One Courthouse Square Carlisle, PA 17013 The Honorable Edgar B. Bayley President Judge Court of Common Pleas of Cumberland County Cumberland County Courthouse, One Courthouse Sq Carlisle, PA 17013 3014 - 10/99 1011/99 10:48 AA Appeal Docket Sheet Docket Number: 723 MDA 2008 Page 1 of 3 April 24, 2008 Superior Court of Pennsylvania Doris Mae and Lee E. Kennedy, Appellants V. Sarah E. Flynn-Tripp, and James Walsh Initiating Document: Notice of Appeal Case Status: Active Case Processing Status: April 23, 2008 Awaiting Original Record Journal Number: Case Category: Domestic Relations CaseType: CustodyNisitation Consolidated Docket Nos.: Related Docket Nos.: SCHEDULED EVENT Next Event Type: Receive Docketing Statement Next Event Due Date: May 8, 2008 Next Event Type: Original Record Received Next Event Due Date: June 20, 2008 4/24/2008 3023 10:49 A.M. Appeal Docket Sheet Docket Number: Paqe 2 of 3 April 24, 2008 Superior Court of Pennsylvania 723 MDA 2008 COUNSEL INFORMATION Appellant Kennedy, Doris Mae and Lee E. Pro Se: Appoint Counsel Status: IFP Status: No Appellant Attorney Information: Attorney: Webber Jr., Richard Lee Bar No.: 49634 Law Firm: Weigle & Associates, P.C. Address: 126 E King Street Shippensburg, PA 17257-1397 Phone No.: (717)532-7388 Fax No.: (717)532-5289 Receive Mail: Yes E-Mail Address: Receive E-Mail: No Appellee Pro Se: IFP Status: Walsh, James Appoint Counsel Status: Appellee Attorney Information: Attorney: Walsh, James Bar No.: Law Firm: Address: 938 Sanderson Street Throop, PA 18512 Phone No.: Fax No.: Receive Mail: Yes E-Mail Address: Receive E-Mail: No Appellee Flynn-Tripp, Sarah E. Pro Se: Appoint Counsel Status: IFP Status: Appellee Attorney Information: Attorney: McKnight III, Marcus A. Bar No.: 25476 Law Firm: Irwin & McKnight Address: 60 W Pomfret Street Carlisle, PA 17013-3222 Phone No.: (717)249-2353 Fax No.: (717)249-6354 Receive Mail: Yes E-Mail Address: Receive E-Mail: No FEE INFORMATION Paid Fee Date Fee Name Fee Amt Amount Receipt Number 4/21/08 Notice of Appeal 60.00 60.00 2008SPRMD000342 4/24/2008 3023 10:49 A.M. Appeal Docket Sheet Superior Court of Pennsylvania Docket Number: 723 MDA 2008 Paqe3of3 ZV& April 24, 2008 TRIAL COURT/AGENCY INFORMATION Court Below: Cumberland County Court of Common Pleas Division: Civil County: Cumberland Date of Order Appealed From: March 20, 2008 Judicial District: 9 Date Documents Received: April 23, 2008 Date Notice of Appeal Filed: April 21, 2008 Order Type: Order Entered OTN: Judge: Bayley, Edgar B. Lower Court Docket No.: 07-6292 President Judge ORIGINAL RECORD CONTENTS Original Record Item Filed Date Content/Description Date of Remand of Record: BRIEFS DOCKET ENTRIES Filed Date Docket Entry/Document Name Party Type Filed By April 23, 2008 Notice of Appeal Filed Appellant Kennedy, Doris Mae and Lee E. April 24, 2008 Docketing Statement Exited (Civil) Middle District Filing Office 4/24/2008 3023 C? r- - °' . ??::, -- ' n : ?,? ? =? -?- r_ i? _ ?..? ?._ - ?,?; ;; -.- ...-, cw -.:. DORIS MAE HOLT-KENNEDY IN THE COURT OF COMMON PLEAS OF AND LEE E. KENNEDY, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs vs. SARAH E. FLYNN TRIPP AND 07-6292 CIVIL TERM JAMES WALSH, ; Defendants PETITION FOR EMERGENCY RELIEF PURSUANT TO Pa.RC.P.191513 AND NOW, come Petitioners, Doris Mae Holt-Kennedy and Lee E. Kennedy, by and through their counsel, Bradley L. Griffie, Esquire and the law firm of Griffie & Associates, and petitions the Court as follows: 1. Your Petitioners are Doris Mae Holt-Kennedy and Lee E. Kennedy, adult individuals residing at 515 Big Spring Road, Newville, Cumberland County, Pennsylvania. 2. Respondent, Sarah E. Flynn Tripp, is an adult individual who is represented by counsel of record, Marcus A. McKnight, III, Esquire. Respondent's address is unknown. 3. Respondent, James Walsh, is an adult individual whose last known address is 938 Sanderson Street, Throop, Pennsylvania, 18512. 4. Petitioners are the paternal grandparents of the child, Luke James Flynn, born October 28, 2001. 5. Upon the filing of a Complaint for Custody by Petitioners herein, a hearing was held on February 28, 2008 to determine Petitioners' request for primary physical custody of the child. 6. Upon hearing, the Court entered an Order on March 20, 2008, said Order being attached hereto and incorporated herein by reference as Exhibit "A". 7. The Court simultaneously entered an Opinion in the said matter, which is attached hereto and incorporated herein as Exhibit "A", wherein the Court provided the basis and foundation for its determination, denying Petitioners' request for primary physical and legal custody of the child. 8. Upon receipt of the Opinion of the Court, Petitioners made arrangements to secure the services of a private investigator in the State of California for purposes of determining the factual accuracy of the claims made by Respondent, Sarah E. Flynn Tripp, under oath, which testimony formed the basis for the Court's determination in these proceedings. 9. The Court based its determination that it was appropriate to have the child returned to the custody of Respondent, Sarah E. Flynn Tripp, on the following factual claims of Respondent, Sarah E. Flynn Tripp: (A) "The mother is a manager/sales associate for a newspaper where she has worked for the last five years."; (B) "They [Mother and her current husband] live in a leased three bedroom home in Apple Valley"; (C) "mother wants to enroll Luke in a private Christian (Baptist) school in Apple Valley"; (D) Mother had what appeared to be a signed lease evidencing her rental of a three bedroom apartment"; and (E) "The mother has married Daniel Tripp and together they have now have established their lives with sufficient earnings to maintain an adequate leased home in Apple Valley." 10. Based upon information secured by a private investigator in California, it has been determined that: (A) Sarah E. Flynn Tripp and Daniel Tripp were not residing at the residence claimed in their sworn testimony at the time of the hearing in this matter. (B) The named land-lady on the lease presented by Sarah E. Flynn Tripp, Kathy Goss, has denied that she has a signed lease or that there is any signed lease between her and Sarah E. Flynn Tripp or Daniel Tripp. (C) The named land-lady on the lease, which document was presented as a legitimate exhibit by Sarah E. Flynn Tripp, confirmed that Sarah E. Flynn Tripp and Daniel Tripp were evicted from the residence that they claimed to be renting on or about August 8, 2007 for nonpayment of rent. (D) The land-lady, Kathy Goss, has advised the private investigator that the lease that was presented in the Court of Common Pleas of Cumberland County as a legitimate document was a document that the said land-lady had never seen before. (E) The land-lady, Kathy Goss, confirmed that the terms of the written lease that was presented as an exhibit by Respondent, Sarah E. Flynn Tripp, before the Court of Common Pleas of Cumberland County were never terms to which Kathy Goss and Sarah E. Flynn Tripp or Daniel Tripp had agreement. (F) The land-lady, Kathy Goss, confirmed that Sarah E. Flynn Tripp and Daniel Tripp rented a "room" from her in December 2006, at a rental rate of $200.00, but that the rental was solely for the rent of a room and the tenants did not have access to the entire home, but rather were limited to one room which had its own outside entrance. (G) The land-lady, Kathy Goss, confirmed that Sarah E. Flynn Tripp and Daniel Tripp (hereinafter jointly the "Tripps") resided in the one room that they rented for approximately seven months, when Ms. Goss was compelled to evict them from the home for nonpayment of rent, as they were three months behind in their rent. (H) The land-lady, Kathy Goss, indicated that the Tripps departed the residence on or about August 8, 2007 and that she had no further contact with either of the Tripps from that time forward. (I) The land-lady, Kathy Goss, confirmed that she heard arguments and physical altercations between Sarah E. Flynn Tripp and Daniel Tripp and ultimately saw injuries to Sarah E. Flynn Tripp evidencing the physical confrontation that resulted from Daniel Tripp's attacks on Sarah E. Flynn Tripp. (J) The employer with whom Respondent, Sarah E. Flynn Tripp, testified she had been employed for more than five years has indicated to the private investigator that Sarah E. Flynn Tripp has never been an employee for the newspaper, but rather served as an independent contractor simply delivering newspapers. (K) Based upon information received, it is believed and, therefore, averred, that it would be impossible for Respondent, Sarah E. Flynn Tripp, to earn the sum of $3,800.00 per month as claimed in the court proceedings. (L) At the time the private investigator secured information from the Apple Valley Christian School where Respondent claimed the child would be attending for the 2008-2009 school year, the child had not been registered and had not been placed on a waiting list for registration. 11. It is evident from the testimony and information presented by Respondent, Sarah E. Flynn Tripp, that she provided false and misleading information and specifically committed perjury on substantive matters before the Court. 12. It is apparent that Respondent, Sarah E. Flynn Tripp, either provided forged documents or had someone assist her in securing forged documents to present to the Court in substantive matters relevant to the custody proceedings. 13. As Respondent, Sarah E. Flynn Tripp, provided false testimony, which formed the basis of the Court's determination denying Petitioners primary physical custody in this matter, the matter should be re-examined before the Respondent, Sarah E. Flynn Tripp, is permitted to regain custody of the child. 14. The conduct of the Respondent, Sarah E. Flynn Tripp, in perjuring herself before the Court and providing forged documents to the Court, is further evidence of the fact that she is an inappropriate role model and otherwise fails to have the required stability necessary to take custody of the child and raise the child at issue in this case. 15. Petitioners, through counsel, are providing this information relative to Sarah E. Flynn Tripp's perjury to the Cumberland County, Pennsylvania, District Attorney's office for further investigation. 16. A copy of this document is provided by facsimile correspondence to Marcus A. McKnight, III, Esquire, prior to filing, with a specific indication of exactly when the Petition is being filed with the Court so that Attorney McKnight could be present in person or by telephone, or someone representing his office could be available to voice the Respondent's position regarding these matters. WHEREFORE, Petitioner requests your Honorable Court to enter an Order staying the prior Order of March 20, 2008 entered by the Court in this matter pending a review of the claims set forth herein and for the Court to issue a Rule upon the Respondent, Sarah E. Flynn Tripp, and Daniel Tripp to show cause, if any they have, as to why the Court should not vacate its Order of March 20, 2008. Respectfully submitted, P 0 r ie, Esquire t orney for Petitioners 200 North Hanover Street Carlisle, PA 17013 (717) 243-5551 (800) 347-5552 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. Section 4904, relating to unworn falsification to authorities. DATE: S d2?-oirl DORIS MAE HO T-KENNE Y 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. Section 4904, relating to unsworn falsification to authorities. -7e DATE: ,5 a? 9 - O 0 -, - L?Lk L AE E. KENNEDY DORIS MAE HOLT-KENNEDY IN THE COURT OF COMMON PLEAS OF AND LEE E. KENNEDY, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs vs. SARAH E. FLYNN TRIPP AND 07-6292 CIVIL TERM JAMES WALSH, Defendants CERTIFICATE OF SERVICE I, Bradley L. Griffie, Esquire hereby certify that I did, the 29`h day of May, 2008, cause a copy of Defendant's Petition for Emergency Relief Pursuant to Pa.R.C.P. 1915.13 to be served upon the Defendant, Sarah E. Flynn Tripp, by serving her attorney of record by facsimile and first class mail, postage prepaid, at the following addresses: Marcus A. McKnight, III, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013 (Facsimile) 717-249-6354 DATE: _41 g A L. fie, Esquire y or Plaintiffs/Petitioners P: - _ „„ ;.? (? r, (( ,, l? ? ?iJ l' P"? (? ? 1 7 fi ? ?? / i (,' v l ?- _ ? `?( ( ?. II? Laserfiche WebLink http://records.ccpa.net/weblink_public/DocView.aspx?id=173724&d. Laserfidw WebL.lnk Logout Browse oo ?° J?F Page 50 of 74 Go lO® ? ?- -° - - 0[ Cw* 'S 22.46% * Pages 50 to !'" Prothonotary_7 > Civil Dockets > 2007 Dockets > 07- 6201 thru 07- 6300 > 07-6292 DORIS MAE HOLT-KENNEDY IN THE COURT OF COMMON PLEAS OF AND LEE E. KENNEDY, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. SARAH E. FLYNN TRIPP AND JAMES WALSH, DEFENDANTS 07-6282 CIVIL TERM 1N RE•?GUST,C}fly OPINION AND ORDEo OF C rar Bayley, J., March 20, 2008:- On October 27, 2007, Doris Mae Holt-Kennedy, age 6D, and her husband Lee E. Kennedy, age 66, filed a complaint in custody against her daughter Sarah E. Flynn Tripp, age 42, and James Walsh, age 66 Tripp and Walsh are the parents of Luke Jornes Flynn, age 6, born October 28, 2001. A hearing was conducted on February 28, 200®, Luke was tom in Scranton, Pennsylvania, His parents, who never married, lived logaiher after his birth.' They Separated in August. 2003, when the mother took Luke to live In the home of her maternal grandrnother, Darin Fries, in Victorville, California' The father never saw Luke again until the hearing on this case on February 28, 2008. Nor has he provided any support for him, or contacted him in any way. r The mother was married to Petrick Flyrin before she lived with James Walsh- Luke is her only child. Doris Kennedy was present when Luke was born. When the mother, Luke and the father lived in Scranton She would see Luke about once a more. i Exhibit "A" of 3 5/29/2008 12:33 PM L?seTf,che WebUnk http://records.cepa.net/weblink_public/DocView.aspx?id=173724&d. Laserfiehe WebLink Logout Browse + Page 51 of 74 Go s (*' '22.46% ± Pages 51 to jq Prothonotary_7 > Civil Dockets > 2007 Dockets > 07- 6201 thru 07- 6300 > 07-6292 07-6292 CIVIL TERM The mother and Luke lived In her grandmothers home in Victorvike until January, 2004, when they moved into an apartment in the area. The mother was lhvotved with Daniel Tripp and he oaten stayed in her home. In June of 2005, the mother was having significant financial difficulties and about to be evicted from a home she and Luke had moved Into after living in the apartment. She tatted her mother who Was in NewvWie, Cumberland County. She told her that Luke was aggressive and that she could not handle him. She asked her to come to Califomis and take Luke to Pennsylvania. Luke's grandmother went to California and took the following custody agreement which the mother signed on June 19, 2005. KNOW ALL MEN BY THESE PRESENTS, that t, SARAH E. FLYNN TRIPP, of 22839 Lone I:egte Road, Apple Valley. California. the natural parent of the minor chili, LUKE JAMES FLYNN, bom October 28, 2001, hereby grant, give and set over custody of said LUKE JAMES FLYNN, to DORIS MAE HALT-KENNEDY, of 430 Shippensburg Road, Newvllle, Penns"nla, to exercise such custody while said shill is in her care and control to the same extent and with the same rights, poviiages, duties and responsibilities as would otherwise be vested In the above- named natural parent, SARAH E. !FLYNN TRIPP, of the said LUKE JAMES FLYNN. Said dudes and responsibilities to include but not be Milled to provision of proper health and medical care, authorization of medical nazi: including consent and authorization for all necessairy, ordinary and extraordinary medical care provided by a physician, hospital, clinic, or other property trained medical personnel. And further imposing upon DORIS MAE HOLT-KENNEDY all of the responsibilities of proper supervision and care to secure the best interests and welfare of cold minor child. The mother testified that it was her Intent to have her mother care for Luke until she was able to adequately care for him, which she felt would be by the and of the summer of 2005. The grandmother testified that it was her intent to give Luke back to •2- of 3 5/29/2008 12:35 PM Laserfiche WebLink http://records.ccpa.net/weblink_public/DocView.aspx?id=l 73724&d... Laserfiche` WebL1nk Logout Browse Page 52 of 74 Go 1 ;)a 1111 gyp]. .___....._o....... i ..._,..?_?_._.. -J 22.46% ± Pages ?52 to 74 DD _ Prothonotary_7 > Civil Dockets > 2007 Dockets > 07- 6201 thru 07- 6300 > 07-6292 07-6292 CIVIL TERM his mother when she got her life together. On June 22, 2005, the grandmother brought Luke into her three bedroom home with her husband Lee Kennedy.' Luke was very aggressive: he would hit has grandmother: he was afraid; and he often cried He was not potty trained. He was thin but physically well. The grandmother had Luke evaluated at the Capital Area Intermediate Unit They accepted him for enrollment for speech and behavioral therapy which began in August, 2005. Luke's aggressiveness quickly dissipated. When he started at the Capital Area Intermediate Unit, he had very limited vocabulary and speech. Luke made good progress there, and he started kindergarten in August, 2007 He is doing skight although It takes him more time to comprehend things. He works hard but has trouble remembering. He has two special speech sessions in kindergarten each week. His kindergarten teacher testified that he was riot yet close to not needing additional instruction. The school has an action plan to improve his writing and vocabulary While it is too early to tell, it may be appropriate for Luke to repeat kindergarten next year' The grandmother testified that for the first year Luke was with her the mother would call frorn California approximately once a month. She would ask if Luke was 'She married Kennedy in 1985. He works for Lucent Technology. The grandmothers first husband, who died, adopted Sarah. The grandmother works by providing care each day for two hours in the home of an elderly woman. ' The grandmother attends Luke's kindergarten class twice a week. She takes him to church each week where he interacts well with children in his Sunday school class. -2- I of-3 5/29/2008 12:36 PM Laserfiche WebLink http://records.ccpa.net/weblink_public/DocView.aspx?id=173724&d.. Laserfiche' WebLink Logout Browse Page 153 of 74 Go . o ao 9 ® 0 M 4) 0' 22.46% Pages 1'53 to E74 M Prothonotary_7 > Civil Dockets > 2007 Dockets > 07- 6201 thru 07- 6300 > 07-6292 07-6292 CIVIL TERM happy but never made inquiry into the details of his fife. After the first year the mother called more often. The mother never sent any cards or gifts until the second year. She never mentioned regaining custody unto just before Luke started kindergarten in the fall of 2007, Man the grandmother told the mother that Luke was still having issues, the mother said that she would still like to have Luke, but no date was set On October 9, 2007, the mother, who had not seen him since Juiy 1g. 2005, came to the grandmothers home unannounced and demanded to immediately take Luke to California. The mother had taken a bus from California to Harrisburg, and a taxi to the grandmother's home. The taxi driver was waiting. Luke was scared and crying.. The grandmother would not let the mother take him. The police were called. Things finally calmed down when the mother agreed to leave without Luke. The grandmother then allowed her to come into her home where the mother spent some time wilti Luke Aller, . the mother left, she called her husband, Daniel Tripp, who was in California.' He irked the grandmother, was very hoshle, ano made threats against her. The mother returnec to Calilamis She next called Luke an October 27, 2007. which was the day before his sixth birthday. The mother testified that she has always tailed Luke regularly. She testified that she only signed the custody agreement because the grandmother had to have legal 6h amerrded Tripp on April 26. 2006. -4- 1 of 3 5/29/2008 12:36 Ptv Laserfiche WebLink http://records.ccpa.net/weblink_public/DoeView.aspx?id=l 73724&d.. Laserf iche' We b L n k Logout Browse 1 ±? Page 54 of 74 Go j oo R) 0 M, _.i + Pages 54 to i74 :. 22.46% Prothonotary_7 > Civil Dockets > 2007 Dockets > 07- 6201 thru 07- 6300 > 07-6292 076292 CIVIL TERM authority to obtain medical services for him. She testified that at the end of the summer of 2005, the grandmother asked to extend her time with Luke until January, 2006, and she agreed. She testified that what triggered her coming to Pennsylvania on October 9, 2007, was that two days earlier she received paperwork from the grandmother seeking her consent to an adoption. The mother come to Pennsylvania again in December, 2007. On December 7, the grandmother allowed her to spend time in her home with Luke between 4:00 p.m. and 9:00 p.m., during which they had dinner. The mother spent time with Luke at the grandmother's home the next day between 9:00 a.m. and 2:D0 p m. The mother was with Luke again when this hearing was conducted at the end of February, 2008. The mother has been tailing Luke each Sunday evening. The grandmother testified that Luke knows his mother and loves her. She testfied that Luke is now a happy little boy but he still has issues, She feels that he needs more help to get him to appropriate age level Daniel Tripp, age 48, has a 2003 conv+clion for assault with a deadly weapor to vehicle) for which he went to prison. He was paroled in July, 2004, but he wen-, back to prison for six months on a parole violation between October, 2005 and March, 20D6. His current parole will end in April, 2008. He has three children, none of whom he sees. The mother tasllfied that Luke got along with him during the period she was seeing him before Luke came to Pennsylvania. The testimony of Daniel Tripp was taken oy phone. -5- 1 of 3 5/29/2008 12:37 PM Laserfiche WebLink Laserfiche WebLink http://records.ccpa.net/weblink_publ is/DocView.aspx? i d=173 724&d.. Logout Browse Page 155 of 74 Go -•.._. , o°o U t 22.4?_ _ o + Pages- to [74 Prothonotary_7 > Civil Dockets > 2007 Dockets > 07- 6201 thru 07- 6300 > 07-6292 07-6292 CIVIL TERM His rambling discounter, were to a great extent unintelligible.' Doris Fries, age 78, Luke 'a feisty great-grandmothei. testified that she raised the mother from ages thkteen to Iwen"ne. The mother contacW her in the summer of 2003 and asked if she and Luke coup live with her and start a new life. Fries agreed After the mother moved out of the Fries` home to an aparknent in January, 2004, she struggled. Fries testified that the mother could not handle Luke and ultimately decided to let him live with the grandmother in Pennsylvania so that she could get along with her life It was Fries impression that, at that time, the mother was more interested in Daniel Tripp then she was in Luke. Fries testified that the mother now comes to her home at least once a week, She often asks to borrow money and asks for food.' The mother is a managerisales associate for a newspaper where she has worked for the last five years. Tnpp works in a warehouse, and has a paper route for fne same paper. She eams approximately $3.800 a month and he earns approximately $1,500 a month. They live in a leased three bedroom home In Apple Valley which is about seven miles from the great-grandmother's home in Victomfle. Apple Valley is it " Luke's father, James Walsh, testified after rie heard the testimony of the mother and onandmothef. He made the unbelievable statement that if Luke could not live with his mother, he would prefer that he be in foster care rather than with his grandmother. This from a man who has not seen his son for over five years, not contacted him in any way. and not provided any support to the mother or the grandmother for his care. ' In rebuttal, the mother testified that she once asked Fries for 320. She testified that Fries goes to Food Pantries so she has extra flood. The mother knows a lot of young girls where she works so when Fries offered, she would take the food, but it was not for her. She tested °I just didn't went to make her feel bad about that, but it was not for me.- _i6- 1 of 3 5/29/2008 12:37 PIV Lasetfiche WebLinlc http://records.ccpa.net/weblink_public/DocView.aspx?id=173724&d.. Laserf[Che WebLink i_ogout Browse Page ¢56 of 74 Go °0?....__. 22.460/6± Pages X56 to X74 Prothonotary_7 > Civil Dockets > 2007 Dockets > 07- 6201 thru 07- 6300 > 07-6292 07-8292 CIVIL TERM the high desert in southern California. The mother wants to enroll Luke in a private Christian (Baptist) school in Apple Valley that has all grades through 12, The paramount concern in a child custody case is the best interest of the child based on a consideration of all factors that legitimately affect the child's physical intellectual, moral and spiritual well-being. Swope v. Swope, 888 A.2d 284 (Pa. Super. 1997), In K.B. II v. C.B.F., 833 A.2d 767 (Pa. Super. 2003), the Superior Court of Pennsylvania stated. With regard to a custody challenge by a third party, our Pennsylvania courts have expressed a strong preference for the rights of biological parents. In Charles v. Stehl*, 560 Pa, 334, 744 A.2d 1255 (2000), our Supreme Court articulated this view, staling It is axiomatic that in custody disputes, 'the fundamental issue is the beat interest of the child' In a custody contest between two biological parents, "the burden of proof is shared equally by the contestants...." YeL where the custody dispute is between a biological parent and a third parry, the burden of proof is not evenly balanced In such instances, 'the parents have a 'prima facie right to custody,' which wfll be fonfaitad only If 'convincing reasons' appear that the child's best Interest will be served by an award to the third party. Thus, even before the proceedings start, the evidenfiary scale is tipped, and tipped hard, to the [toologicall parents' side." id. at 338, 744 A.2d at 1258 (2000) (citations and quotations omitted); soil also 78. v. L.R.M., 753 A2d 873 (Pa.Super.2000) (holding that biological parents have a prime facie right to custody over third persons) afd, 587 Pa. 222, 786 A.2d 913 (2001) (Emphasis added.) The mother maintains that her life has stabilized and that she now has an appropriate home with the financial means to care for Luke The grandmother maintains that the molfrer has not made sufficient progress to adequalely care for Luke There is no doubt that the mother was not able to provide adequate care for Luke J. i of 3 5/29/2008 12:38 PM Laserfiche WebLink http://records.ccpa.net/weblink_public/DocView.aspx?id=l 73724&d.. Laserfiche' WebLink Logout Browse ±7 Page X57 of 74 Go 22 46,_,__ _ 0 % +' Pages E57 to 74 Prothonotary_7 > Civil Dockets > 2007 Dockets > 07- 6201 thru 07- 6300 > 07-6292 078292 CIVIL TERM leading up to the transfer to his grandmother in June, 2005. The grandmother created a stable and organized structure for Luke which quickly resulted in the cessation of his behavioral problems. She immediately obtained the services that were necessary to help him, and he is still in need of special services. Luke was just short of three years eight months old when the mother turned hire over to the grandmother. On October 9, 2007, when the mother showed up unannounced at the grandmother's home and demanded to take Luke to California, he was almost six years old and she had not seen him for a little over two years and three months. No matter how frustrated the mother may have been, upon learning that the grandmother wanted to keep Luke permaneri which was a change from her position at Cite time she took Luke, this precipitous action was not well thought out. Likewise, the grandmother snoutd have discussed with the mother her desire to adopt Luke rather than taking the precipitous action of sending her a form to consent. What has changed since Luke came to Pennsylvania on June 22, 2005, is that the mother has married Daniel Tripp and together they now have stabilized their lives with sufficient earnings to maintain an adequate leased home it Appie Valley The instability that led the mother to ask the grandmother to take Luke for what both considered a temporary period has ended, The issue: therefore, is not whether the grandmother would make a better parent than the mother Rather, it is whether the mother now has the ability to adequately care for Luxe. we believe she can and that she can address his special needs. The mother her, not forfeited her prima facie right -8- 1 of 3 5/29/2008 12:39 PIV Laserfiche WebLink http://records.ccpa.net/weblink_public/DocView.aspx?id=l 73 724&d.. Laserfiche` WebLink Logout Browse + D" °oo ® 0 M i0 -* - 22.46/o o ±. Pages i58 t074 ...`:: _. _......._........ _ _ _..._ . _._.__ i Prothonotary_7 > Civil Dockets > 2007 Dockets > 07- 6201 thru 07- 6300 > 07-6292 07$292 CIVIL TERM to custody of Luke. There are no convincing reasons that Luke's best interest will be served by awarding custody to the grandmother. Given the circumstances, ho.vever, we will not order a transfer to the mother until Luke completes this kindergarten year For the foregoing reasons, the following order is entered.' ORDER OF COURT AND NOW, this -7511f* day of March, 2008, the complaint of Dons Mae Hoft- Kennedy and Lee E. Kennedy for primary physical custody of Luke James Flynn, bom October 28, 2001, IS DENIED. Unless the mother and the grandmother agree to another method of transfer, once this kindergarten year is completed, upon one week prior notice by Sarah Flynn Tripp to Doris Mae Holt-Kennedy, the mother may pick up Luke in Newvilie and take him to tier home jr, Victorville, California, wnere she shalt have custody. By the GcSurt T Edgar S. Bayley, J. '_The grandmothef did not seek partial physical custody in case Luke was returned to the custody of his mother. She had standing to seek partial physical custody. 23 Pa.C_S. § 5313(a). The mother testified that she would agree to the grandmother having some partial physical custody of Luke. That is certainly in Luke's best interest. -9- I of 3 5/29/2008 12:39 P1V Via) C r-> -c7 DORIS MAE HOLT-KENNEDY IN THE COURT OF COMMON PLEAS OF AND LEE E. KENNEDY, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs vs. SARAH E. FLYNN TRIPP AND 07-6292 CIVIL TERM JAMES WALSH, Defendants AMENDED PETITION FOR EMERGENCY RELIEF PURSUANT TO Pa.RC.P.1915.13 AND NOW, come Petitioners, Doris Mae Holt-Kennedy and Lee E. Kennedy, by and through their counsel, Bradley L. Griffie, Esquire and the law firm of Griffie & Associates, and petitions the Court as follows: 1. Your Petitioners are Doris Mae Holt-Kennedy and Lee E. Kennedy, adult individuals residing at 515 Big Spring Road, Newville, Cumberland County, Pennsylvania. 2. Respondent, Sarah E. Flynn Tripp, is an adult individual who is represented by counsel of record, Marcus A. McKnight, III, Esquire. Respondent's address is unknown. 3. Respondent, James Walsh, is an adult individual whose last known address is 938 Sanderson Street, Throop, Pennsylvania, 18512. 4. Petitioners are the paternal grandparents of the child, Luke James Flynn, born October 28, 2001. 5. Upon the filing of a Complaint for Custody by Petitioners herein, a hearing was held on February 28, 2008 to determine Petitioners' request for primary physical custody of the child. (E) "The mother has married Daniel Tripp and together they have now have established their lives with sufficient earnings to maintain an adequate leased home in Apple Valley." 10. Based upon information secured by a private investigator in California, it has been determined that: (A) Sarah E. Flynn Tripp and Daniel Tripp were not residing at the residence claimed in their sworn testimony at the time of the hearing in this matter. (B) The named land-lady on the lease presented by Sarah E. Flynn Tripp, Kathy Goss, has denied that she has a signed lease or that there it any signed lease between her and Sarah E. Flynn Tripp or Daniel Tripp. (C) The named land-lady on the lease, which document was presented as a legitimate exhibit by Sarah E. Flynn Tripp, confirmed that Sarah E. Flynn Tripp and Daniel Tripp were evicted from the residence that they claimed to be renting on or about August 8, 2007 for nonpayment of rent. (D) The land-lady, Kathy Goss, has advised the private investigator that the lease that was presented in the Court of Common Pleas of Cumberland County as a legitimate document was a document that the said land-lady had never seen before. (E) The land-lady, Kathy Goss, confirmed that the terms of the written lease that was presented as an exhibit by Respondent, Sarah E. Flynn Tripp, before the Court of Common Pleas of Cumberland County were never terms to which Kathy Goss and Sarah E. Flynn Tripp or Daniel Tripp had agreement. (F) The land-lady, Kathy Goss, confirmed that Sarah E. Flynn Tripp and Daniel Tripp rented a "room" from her in December 2006, at a rental rate of $200.00, but that the rental was solely for the rent of a room and the tenants did not have access to the entire home, but rather were limited to one room which had its own outside entrance. (G) The land-lady, Kathy Goss, confirmed that Sarah E. Flynn Tripp and Daniel Tripp (hereinafter jointly the "Tripps") resided in the one room that they rented for approximately seven months, when Ms. Goswwas compelled to evict them from the home for nonpayment of rent, as they were three months behind in their rent. (H) The land-lady, Kathy Goss, indicated that the Tripps departed the residence on or about August 8, 2007 and that she had no further contact with either of the Tripps from that time forward. (I) The land-lady, Kathy Goss, confirmed that she heard arguments and physical altercations between Sarah E. Flynn Tripp and Daniel Tripp and ultimately saw injuries to Sarah E. Flynn Tripp evidencing the physical confrontation that resulted from Daniel Tripp's attacks on Sarah E. Flynn Tripp. (J) The employer with whom Respondent, Sarah E. Flynn Tripp, testified she had been employed for more than five years has indicated to the private investigator that Sarah E. Flynn Tripp has never been an employee for the newspaper, but rather served as an independent contractor simply delivering newspapers. (K) Based upon information received, it is believed and, therefore, averred, that it would be impossible for Respondent, Sarah E. Flynn Tripp, to earn the sum of $3,800.00 per month as claimed in the court proceedings. (L) At the time the private investigator secured information from the Apple Valley Christian School where Respondent claimed the child would be attending for the 2008-2009 school year, the child had not been registered and had not been placed on a waiting list for registration.e 11. It is evident from the testimony and information presented by Respondent, Sarah E. Flynn Tripp, that she provided false and misleading information and specifically committed perjury on substantive matters before the Court. 12. It is apparent that Respondent, Sarah E. Flynn Tripp, either provided forged documents or had someone assist her in securing forged documents to present to the Court in substantive matters relevant to the custody proceedings. 13. As Respondent, Sarah E. Flynn Tripp, provided false testimony, which formed the basis of the Court's determination denying Petitioners primary physical custody in this matter, the matter should be re-examined before the Respondent, Sarah E. Flynn Tripp, is permitted to regain custody of the child. 14. The conduct of the Respondent, Sarah E. Flynn Tripp, in perjuring herself before the Court and providing forged documents to the Court, is further evidence of the fact that she is an inappropriate role model and otherwise fails to have the required stability necessary to take custody of the child and raise the child at issue in this case. 15. Petitioners, through counsel, are providing this information relative to Sarah E. Flynn Tripp's perjury to the Cumberland County, Pennsylvania, District Attorney's office for further investigation, with the request that criminal proceedings be considered. 16. The Court's Order of March 20, 2008 had been appealed by the Petitioners herein to the Pennsylvania Superior Court. 17. By Praecipe dated May 30, 2008, which has been filed with the Superior Court of the Commonwealth of Pennsylvania, Petitioners' appeal of the Court's Order of March 10, 2008 has been withdrawn. 18. Notice of the intention to file the within Amended Petition, along with a specific indication of exactly when the Petition is going to be presented to the Court, has been provided to Respondent, Sarah E. Flynn Tripp's, counsel of record, Marcus A. McKnight, III, Esquire, with the request that Attorney McKnight be present in person or by telephone or that someone representing his office be available in person or by telephone to express the Respondent's position regarding these matters. WHEREFORE, Petitioner requests your Honorable Court to enter an Order staying the Order of Court dated March 20, 2008 entered by the Court in this matter, pending a review of all claims set forth herein, that the Court enter an Order providing Petitioners with primary physical and legal custody of the child pending further Order, and that the Court issue a Rule upon the Respondent, Sarah E. Flynn Tripp, and James ZSSS-LV£ (008) ISSS-£bZ (LIL) £IOLI Vcl `alsiliL'D 199JIS JanouRH glioN OOZ szauotitlad/spluilold io3 sau o annbsg `agpjf) •- `polltuigns Alinpaodsag pligo aql jo Apoisno Iugal puL, ItoisXgd XiLwijd szauoppod Suiluva .yap o uu jo jonv3 ui SOOZ `OZ gojew Jo Japlp sIT aleaEn lou plnogs IznoD aql f,,qm of su `aAEq Aagl Aule p `asnuo molts of gsleM 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. Section 4904, relating to unsworn falsification to authorities. DATE: 6 3 C) ` DORIS MAE HOLT-KENNE 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. Section 4904, relating to unworn falsification to authorities. DATE: (r: J3 ( Os ? ? &!:!,? - L E E. KENNEDY 6-1 Laserfiche WebLink http://records.ccpa.net/weblinkSublic/DocView.aspx?id=l 73724&d. Laser ( fiche' We b Li n k Logout i Page 50 of 74 Go Browse M 40 C, _....> C 60. ® ? 'LJ 22 46°/n (j Pages 5p to 74 Prothonotary_7 > Civil Dockets > 2007 Dockets > 07- 6201 thru 07- 6300 > 07-6292 DORIS MAE HOLT-KENNEDY IN THE COURT OF COMMON PLEAS OF AND LEE E KENNEDY, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS i V. t ' SARAH E. FLYNN TRIPP AND { JAMES WALSH, OEFENDANTS : 07-6292 CIVIL TERM INK; QUerOllY OPINION AND ORDER OF COURT Elaylay, J., March 20, 2088:- On October 27, 2007, Doris Mae Holt-Kennedy, age 80, and her husband Les E. Kennedy, age 65, filed a complaint in custody against her daughter Sarah E. Flynn Tripp, age 4, and James Walsh, age 56 Tripp and Welsh are the parents of Luke James Flynn, age 6, born October 28, 2001. A hearing was co ducted on February 28, 2008, Luke was bom in Scranton, Pennsylvania, His parents, who never married. lived together after his birth' They separated in August. 2003, when the mother took Luke to live in the home of her maternal grandmother, Doris Fries, in Viclorv8iE, California.' The father never saw Luke again uatG the hearing on this case on February 28. 2008, Nor has he provided any support for him, or contacted him in any way. ' The mother was married to Patrick Flynn before she lived with James lrilalsh_ Luke is her only chili. ' Doris Kennedy was present when Luke was born. When the mother, Luke aad the father lived in Scranton she would see Luke about once a month. Exhibit "A" of 3 5/29/2008 12:33 PM Laserfiche WebLink hnp://records.ccpa.net/weblink_public/DocView.aspx?id=173724&d. Laserrfiche• WebLink Logout Browse [ Page 51 of 74 Go i o On .. [] pp?? r' j *. Pages g1 to 174 Q ao 0 ® M 22 46% Prothonotary_7 > Civil Dockets > 2007 Dockets > 07- 6201 thru 07- 6300 > 07-6292 0742912 CIVIL TERM i The moliier and Luke fived in her grandmothers home In VictarviNe until January, 2004, when they moved into an apartment in the area. The mother was Involved with Daniel Tripp and he often stayed In her home. In June of 20D5. the mother was having significant financial dtf(ioulties and about to be evtoted from a hams she and Luke had moved into eftar Going in 04 apartment She c0lad her mother who i lives in Newvils, Cumberland County. She told her that Luke was aggressive and that I arm could not handle him. She asked her to come to California and take Luke to Pennsylvania. Luke's grandmother went to California and took the following custody agreement which the mother signed on June 19, 2005. KNOW ALL MEN BY THESE PRESERTS, that N, SARAH E. FLYNN TRIPP, of 22839 Lane Eagle Road. Apple Valley. Caftmia, the natural parent of the minor chill, LUKE JAMES FLYW, born October 28, 20Di, hereby grant, give and set over custody of said LUKE JAMES FLYNN, to DORIS MAE IIOLT-KEN*150Y, of 480 Shippenaburg Road. Newvlle, PerrnsyNanle, to exercise such custody while said child is in her care and control to the same extent and with the same rights, privileges, duties orW responsibilities as would otherwise be vested In the above- named nattiml parent, SARAH E. FLYNN TRIPP, of the said LUKE JAMES FLYNIN. Said duties and responsitGities to include but not be disked to provision of proper health and medical am. authorization of medical care including consent and authonzalcn for all noooss rry, ordinary and extraordinary medical sure provided by a physician, hospital, dinic, or other property trainer} medical personnel. And further imposing upon DOHS ME HOLT-KENNEDY all of the responsibilities of proper supervision and taro to ensure the beat interests end welfare of said minor child. i The another toettlied that It was tier intent to have her mother care for tuke until i she was able to adequately care for him, which she felt woukf he by the and of the summer of 2005. The gi ndmother teatifred that it was her intent to give Luke back to •2- of 3 5/29/2008 12:35 PM .Lasetfiche WebLink http://records,ccpa.net/weblink_public/DocView.aspx?id=173724&d.., Laserfiche WebLink Logout Browse Page 52of 74 Go 22,46% W ± Pages 52 to 74 .. Prothonotary_7 > Civil Dockets > 2007 Dockets > 07- 6201 thru 07- 6300 > 07-6292 07.6262 CIVIL TERM his mother when she got her life together. On June 22, 2005, the grandmother brought Luke into bar three bedroom home with her husband Lee Kennedy! Luke was very aggressive: he would hit has grandmother, he was afraid: and he often cried. He was not potty trained. He was thin but physically wall. The grandmother had Luke evaluated at the Capital Area Intermediate Unit- They accepted him for enrollment for speech end behavioral therapy which began in August, 2006. Luke's aggressiveness quickly dissipated. Mien he started at Ilia Capital Area Intermediate UniL he had very limited vocabulary and speech. Luke made good progress there, and he started kindergarten in August, 2007. He Is doing alight although it takes him more time to comprehend things. He works hard but has trouble remembering. He has two special speech sessions in kindergarten each week. Hts kindergarten teacher testified that he was not yet dose to not needmg addltronsi instruction. The school has an action plan to Improve his writing and vocabulary. Wniie it is too early to tell. it may be appropriate for Luke to repeat kindergarten next year The grandmother testified that for the Flat year Luke was with her the mother would Call from California approximately once a month. She would ask if Luke was 5 -She married Kennedy in 1885. He works for Lucent Technology. The grandmothers first husband, who died, adopted Sarah. The grandmother works by providing care each day for two hours in the horns of an elderly woman 'The grandmother attends Luke's kindergarten class twice a week. She take's him to church each week where he interacts well with chikiren in his Sunday school class. -3- 1 of ; 5/29/2008 12:36 PM Lagerfiche WebLink http://records. ccpa.net/weblink_public/DoeV iew.aspx? id=173 724&d.. Laserf iehe' WebLink Logout Browse Page !53 of 74 Go ?t do i± Pages 53 to 174 Prothonotary_7 > Civil Dockets > 2007 Dockets > 07- 6201 thru 07- 6300 > 07-6292 -07-6222 CRAL TERM happy but never made inquiry into the details of his life. After the first year the mother 011110ed more often. The mother never sent any cards or gifts until the second year. She never mentioned regaining custody until just before Lets Started kindergansn in the fell of 2007. When the gaandmother told the mother that Luke was still hevirtg Issues, the mother said that she would still like to have Luke, but no date was set On October 9, 2007, the mother, who had not seen him since July f6, 2005, came to the grandmothers home unannounced and demanded to immediately take Luke to Califomla. The mother had taken a bus from California to Harhsburg, and a taxi to the grandmothers home. The taxi driver was waiting. Luke was scared and crying, The grandmother world not let the mother take him. The police were called. Things finally calmed down when the mother agreed to leave without Luke. The grandmother then allowed her to come into her home where the mother spent some time w4b Luke After. the mother left, she called bet husband. Daniel Tripp, who was in California' lie called the grandmother, was very hostile, and made threats against her. The mother retumee to California She next called Luke on October 27, 2007- which was the day before his sixth birthday. The mother testified that she has allays called Luke regutany. She testified that she only signed the custody agreement because the grandmother had to have legal fah amerrred Tripp on April 28, 2006. -4- 1 of 3 5/29/2008 12:36 PTv Lwrfiche WebLink http://records.ccpa.net/weblink_public/DocView.aspx?id=173 724&d.. Laserfiche' WebLink Logout Browse I Page F5C 4 of 74 Go j r-__?-.- tc.i ]c bb 0 0- Ti 22.46% -,4., Pages (54 to ,74 ?_.._." Prothonotary_7 > Civil Dockets > 2007 Dockets > 07- 6201 thru 07- 6300 > 07-6292 07.6292 CIVIL TERM authority to obtain medical services for him. She testified that at the and of the eumnrer of 2006, the grandmother asked to extend her time with Luke until January, 2006, and she agreed. She testified that what "pared her taming to Pennsylvania an October 9, 2007, was that Iwo days earlier sha isceiued paperwork from the grandmother seeking her consent to an adoption. The mother came to Pennsylvania again in December, 2007. On December 7, the grandmother allowed her to spend time in her home with Luke between 4:00 p.m and 9;00 p.m., during which they had dinner. the mother spent time with Luke at the grandmother's home the next day between 9:00 a.m. and 2:D0 p m. The mother was with Luke again whan this hearing was conducted at the end of February, 2008. The mother has been calling Luke each Sunday evening. The grandmother testified that Luke knows his mother and loves her She testified that Luke is now a happy little boy but he still has issues. She fools that he needs more help to get him to appropriate age level Danial Tripp, age 48, has a 2003 conviction for assault with a deadly weapon to vehicle) for which he went to poison. He was paroled in July, 2004, but he veent back to prison for six months on a parole violation between October, 2005 and trlarch, 2006. His current parole will end in April, 20D8. He has three children, none of whom he sees. The mother tast8led that Luke got along with hvn du1`atg the period she was seeing him before Luke came to Pennsylvania. The testimony of Danial Tripp was taken by phone. -5- I of 3 5/29/2008 12:37 PM Laserftche WebLink http://records.ccpa.net/weblirtk_pub lic/DocV iew.aspx? id=173724&d.. Laserfiche° WebLink Logout Browse Page 55 of 74 Go ?. i ?` oc Q ?I ? 7' i 22A6°/r- -- Pages 55 to 's7A Prothonotary_7 > Civil Dockets > 2007 Dockets > 07- 6201 thru 07- 6300 > 07-6292 07-6292 CIVIL TERM His rambling disootxaec were to a grant extent unintelligible.' Doris Fries, age 78, Luke s feisty great-grandmothei, testified that she raised the mother hams apes thirteen to twenty-one. The mother contacted her in the summer of 2008 and asked if she and Luke could Ave with her and start in new We, Fries agreed Aker the mother moved out of the Fries' home to an apartment In January, 2004, she struggled. Fries lestifed that the mother could net handle Luke and ultimately decided to let him five with the grandmother in Pennsylvania to that she could get along whh her life. It was Fries impression that, at that time, the mother was more interested in Daniel Tripp f ri she was in Luke.. Fries testified that the mother now comes to her home at least once a week. She often asks to borrow money and asks for food.' The mother is a managerlseles associate for a newspaper where she has worked for the last five years, Tnpp worts to it warehouse, and has a paper route for the same ,paper. She earns approximately 53:800 a month and he earns approximately $1,500 a month. They live in a leased three bedroom home In Apple Valley which is about seven miles from the great-grandmother's hortte in Viclorwlle_ Apple Valley is in ° Luke's father, James Walsh, testified after he heard the testimony of the mother and grandmother. He made the unbelievable statement that if Luke could not live with his mother, he would prefer that he be in foster ogre rather than with his grandmother. This from a men who has not seen his son for over five years, not contacted him in any way, and not provided any support to the mother or the grandmother for his care. I In iebuttef, the mother testified Mat she once asked Fries for $20, She testified that Fries goes to FQod pantries so she has extra food. The mother knows a lot of young girls wtxere she works so whin Fries offered, she would take the food, but ii ores not for her. She testified 'I just didn't want to make her feel bad about that, but it was not lot me.' -6- I of 3 5/29/2008 12:37 PN Laserfiche VebLink http://records.cepa.net/weblink_public/DocView.aspx?id=173724&d.. Laserfiche WebLink Logout Browse Page B6 of 74 Go rJ' !w `7, o? ©? ' 22.46% Pages C56 to 174 Prothonotary_7 > Civil Dockets > 2007 Dockets > 07- 6201 thru 07- 6300 > 07-6292 07-6292 CIVIL TERM the high desert in southern California. The mother wants to enroll Luke in a private Christian (Osptiat) school in Apple Valley that but aQ grades through 12. The paramount concern in a child custody Casa is the best interest of the child based on a consideration of all factors that "Itimatefy affect this child's physical intellectual, moral and spiritual well-being. Swops v, Swaps, 889 A.2d 264 (Pa. Super. 1997). In K,8. II v. C.S.F., 833 A.2d 787 (Pa. Super. 2003), the Superior Coun of Pennsylvania stated: WO regard to a custody challenge by a third party, our Pennsylvania Courts have expressed a strong preference for the rights of biologioal parents. In Cft das P. Stehffk, 560 Pa, 334, 744 A.2d 1255 (2D00), our Supreme Court articutaled this view, staling It is axiomatic that in custody disputes, 'the fundamental issue is the best interest of the child' In a custody contest bah wen two biological parents, "the burden of proof is shared equally by the contestants._" Yet, where the oustody dispute is between a biological parent and a third perky, the burden of proof is not evenly balanced In such instances, 'the parents have a'prima facie right to r vatody,' which vAl be 4ori sited only If 'convincing reasons' appear that the child's best Interest will be served by an award to the third party. Thus, even before the proceedings stars, the evidentiary scale Is lipped: end tipped hard, to the {biological) parents' side " id. at 339, 744 A2d at 1258 (2000) (citations and quotations omitted). see also T.8. v. L.RM., 753 A.2d 873 (Pa.Super,2000) (holding that biological parents have a prima facie right to Custody over third persons) afrd, 567 Pa. 222, 786 A.2d 913 (2061). (Emphasis added.) The mother maintains that her rife has stabilized and that she now has an appropriate home with the financial means to care for Luke. The grandmother maintains that the mother has riot made sufficient progress to adequately care for Luke There is no doubt that the mother was not able to provide adequaw cane for Luke •7- 1 of 1 5/29/2008 12:38 PN Laserfiche WebLink http://records. ecpa.net/weblink_public/Doc V iew.aspx? id=17.3 724&d.. Laserf iche' WebLink Logout Browse Page j57 of 74 Go L? C! !^]? ? 13! 22.46% ± Pages ?5jto ,74 L_ Prothonotary_7 > Civil Dockets > 2007 Dockets > 07- 6201 thru 07- 6300 > 07-6292 07.6292 CIVIL TERM leading up to the transfer to his grandmother in June, 2005. The grandmother created a stable and organized structure for Luke which quickly resulted in the cessation of his behavioral problems. She Immediately obtained the services that were necessary to It* him, and he is still in need of spatial ttervkws Luke was just short of three years eight months old when the mother turned him over to the grandmother. On October g, 2007, when the mother showed up unannounced at the grandmother's home and demanded to lake Luke to California, he was almost six years old and she had not seen him for a little over two years and three months. No matter how frustrated the mother may have been. upon learning that the grandmother wanted to keep Luke permanently. which was a change from her position at the time she look Luke, this precipitous action was not wall thought out. Likewise, the grandmother should have discussed with the mother her desire to adopt Luke rather than taking the precipitous action of sending nor a form to consent. What has changed since Luke came to Pennsylvania on June 22, 2005, is that the mother has married Daniel Tripp and together they now have stabilized their lives with sufficient earnings to maintain an adequate leased home in Apple. Valley The instability that led the motner to ask the grandmother to take Luke for what both considered a temporary period has ended. The issue. theretore, is not whether the grandmother would make abetter parent than the mother. Rathar, it is whether the mother now has the ability to adequately care for Luke. We believe she can and that she can address his special needs. The mother has not forfeited her prima facie tight -a- I of 3 5/29/2008 12:39 P1v .aserfiche WebLink http://records.ccpa.net/weblink_public/DocView.aspx?id=l 73 724&d.. Laserfiche` Web' ink _.. Logout Tl ±l Page X58 of 74 Go Browse oc t=J El 01 _. 22.46% F pages 1,58 to `74 Prothonotary2 > Civil pockets > 2007 Dockets > 07- 6201 thru 07- 6300 > 07-6292 078202 CIVIL TERM to custody of Luke. There are no convincing reasons that Luke's best imeresi wi11 be served by awarding walody to the grandmother. Given the circumstances, however, we will not order a transfer to the mother until Luke completes this kindergarten year. For the foregoing reasons, the tollowing order is entered.' ORDER OF COURT AND NOW, this ^ day of March, 2008, the complaint of Doris Mae Holt- Kennedy and Lee E. Kennedy for primary physical custody of Luke James Flynn, tom October 28, 2001,18 DENIED. Unless the mother and the grandmother agree to another method of transfer, once this kindergarten year is completed, upon one week prior notice by Sarah Flynn Tripp to Dohs Mae Holl•Kenneay, the mother may pick up Luke in Neunnllia and take him to her home in Vrctorvifle. California, wnare she shall have custody- Ely th?Gdurt. Edgar H. Bayley, J. "The grandmother did not seek partial physical custody in cane Lukrs was returned tc the custody of his mother. She had standing to seek partial physical custody. 23 Pa.C.S. § 6313(a). The mother testified that she would agree to the grandmother having some partial physical custody of Luke. That is certainly In Luke's best interest. -a- 5/29/2008 12:39 Pl s DORIS MAE HOLT-KENNEDY IN THE COURT OF COMMON PLEAS OF AND LEE E. KENNEDY, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs VS. SARAH E. FLYNN TRIPP AND : 07-6292 CIVIL TERM JAMES WALSH, Defendants CERTIFICATE OF SERVICE rd I, Bradley L. Griffie, Esquire hereby certify that I did, the J" day of June, 2008, cause a copy of Plaintiffs/Petitioners' Amended Petition for Emergency Relief Pursuant to Pa.R.C.P. 1915.13 to be served upon the Defendant/Respondent, Sarah E. Flynn Tripp, by serving her attorney of record by facsimile and first class mail, postage prepaid, at the following address: Marcus A. McKnight, III, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013 (Facsimile) 717-249-6354 DATE: ra ffie, Esquire L..4ey for Plaintiffs/Petitioners _? rt _,_ _„ ' -? I- ; . C? , C.. Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 A -------------------------------------------- 1014-09/07 Karen Reid Bramblett, Esq. Prothonotary James D. McCullough, Esq. Deputy Prothonotary ift, Superior Court of Pennsylvania Middle District June 2, 2008 Notice of Discontinuance of Action RE: Holt-Kennedy, D. et al v. Flynn-Tripp, S. et al Appeal of: Doris Mae and Lee E. Kennedy Type of Action: Notice of Appeal No. 723 MDA 2008 Cumberland County Court of Common Pleas Agency Docket Number: 07-6292 100 Pine Street. Suite 400 Harrisburr. PA 17101 717-772-1294 www. superior. court. statepa. us The above-captioned matter has been marked "Discontinued" with this court. Certification is being sent to the lower court. Attorney Name Party Name Party Type Marcus A. McKnight, III, Esq. Sarah E. Flynn-Tripp Appellee James Walsh .lames 1lvalsh Appellee Richard Lee Webber, Jr., Esq. Doris Mae and Lee E. Kennedy Appellant " rn IN THE SUPERIOR COURT OF PENNSYLVANIA SITTING IN HARRISBURG No.723 MDA 2008 Doris Mae Holt-Kennedy and Lee E. Kennedy Appeal from the order entered v. :Court of Common Pleas Sarah E. Flynn-Tripp and James Walsh :for the county of Cumberland :No. 07-6292 6/2/08 - The above appeal is hereby withdrawn and discontinued by order of: } s r-Yt tTr Richard L. Webber, Jr., Esq. Attorney for Appellant June 2, 2008 - DISCONTINUED TRUE COPY FROM RECORD IN TESTIMONY WHEREOF, I have hereunto set my hand and the seal of said Court, at Harrisburg, this 2nd day of June, 2008. C. awal4cx E0 ' uty Prothonot r"I C tr? MM DORIS MAE HOLT-KENNEDY AND LEE E. KENNEDY, PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. SARAH E. FLYNN TRIPP AND JAMES WALSH, DEFENDANTS 07-6292 CIVIL TERM ORDER OF COURT AND NOW, this day of June, 2008, IT IS ORDERED: (1) A Rule is issued upon Sarah Flynn Tripp to show cause why the custody order dated March 20, 2008, should not be vacated and an emergency order entered granting temporary physical custody of Luke James Flynn to Doris Mae Holt-Kennedy. (2) Rule returnable at a hearing to be conducted in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania at 1:30 p.m., Monday, July, 21, 2008. (3) The custody order dated March 20, 2008, providing for the transfer of Luke James Flynn to Sarah E. Flynn Tripp IS STAYED pending said hearing, and pending said hearing, Luke James Flynn shall remain in the custody of Doris Mae Holt-Kennedy, By the Court, Kevin : Hess, J. for dgar B. Bayley, J. Bradley L. Griffie, Esquire - ?t ejzs ? For Plaintiffs P/ f Y g! , Marcus McKnight, Esquire -o n?r ? For Sarah E. Flynn Tripp ?y r :sal zlrloe ? `? Q ? 0^ ? 1 ? t,., Z M f-- "rJ W (? V' DORIS MAE HOLT-KENNEDY IN THE COURT OF COMMON PLEAS OF AND LEE E. KENNEDY, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs VS. : SARAH E. FLYNN TRIPP AND 07-6292 CIVIL TERM JAMES WALSH, Defendants IN CUSTODY PETITION TO ALLOW WITNESSES TO TESTIFY BY TELEPHONE AND NOW, come Petitioner, Bradley L. Griffie, Esquire and the law firm of Griffie & Associates, and petitions the Court as follows: 1. Your Petitioner is Bradley L. Griffie, legal counsel for the above named Plaintiffs, Doris Mae Holt-Kennedy and Lee E. Kennedy. 2. A hearing is scheduled in the above captioned matter for Monday, July 21, 2008 to begin at 1:30 p.m. in Courtroom Number 2 of the Cumberland County Courthouse. 3. A hearing was previously held in this matter on February 28, 2008, at which time Defendant, Sarah E. Flynn-Tripp, provided testimony under oath to the Court. 4. Following the hearing in that matter, the Court entered an Order dated March 20, 2008 providing that custody of the child at issue, Luke James Flynn, will be transferred to Defendant, Sarah E. Flynn-Tripp at the end of the 2007-2008 school year. 5. At that time, Plaintiff secured the services of a private investigator in Victorville, California who assisted Plaintiff in determining that the bulk of the testimony provided by the Defendant, Sarah E. Flynn-Tripp was perjured testimony and the facts she alleged, upon which the Court based its decision, were false. 6. A Petition for Emergency Relief was filed in this matter and immediately thereafter resulted in the Court staying its Order of May 20, 2008 and entering a Rule upon Defendant, Sarah E. Flynn-Tripp to show cause why the Custody Order of May 20, 2008 should not be vacated and why an emergency Order should not be entered for the physical custody of Luke James Flynn to remain with Plaintiffs. 7. In order to present testimony at the hearing in this matter, it is necessary to have the following witnesses testify on behalf of the Plaintiff. (a) Leroy Milton, Jr., 14369 Park Avenue, Suite 100 Victorville, California, (b) Kathy Goss, 19472 Chippawa Road, Apple Valley, California, (c) Cassey Fisher, Apple Valley Christian School, 22434 Nisqually Road, Apple Valley, California, and (d) Louise Kopitch, San Bernadino Sun, 4030 North Georgia Boulevard, San Bernadino, California 8. The testimony to be presented by the named witnesses is absolutely imperative to these proceedings, but the witnesses all reside in the state of California. 9. It would be an unnecessary and unreasonable burden to require the named witnesses, who have been subpoenaed by the Plaintiff, to appear in Cumberland County, Pennsylvania to provide testimony contradicting the perjured testimony previously presented by the Defendant, Sarah E. Flynn-Tripp. 10. By correspondence of July 7, 2008, which was faxed to opposing counsel, Marcus A. McKnight, 111, Esquire, Petitioner requested the consent and concurrence of counsel to Petitioner's request that the above named witnesses be permitted to testify by telephone at the hearing in this matter on July 21, 2008 at 1:30 p.m. 11. A brief explanation of the testimony to be presented by those individuals was provided to Mr. McKnight as well. 12. Petitioner requested of Mr. McKnight to confirm his position on this matter immediately so that a Petition could be prepared in the event he objected to telephonic testimony of these witnesses. 13. No response has been received by Mr. McKnight. WHEREFORE, Petitioner requests your Honorable Court to enter an Order authorizing the above referenced witnesses to testify by telephone at the hearing in this matter on Monday, July 21, 2008 at 1:30 p.m. Respectfully submitted, Ome ffie, Esqu ire laintiffs/Petitioners 200 North Hanover Street Carlisle, PA 17013 (717) 243-5551 (800) 347-5552 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. Section 4904, relating to unsworn falsification to authorities. g DATE: -7 (77 {L. GRIFFIE, ESQUIRE DORIS MAE HOLT-KENNEDY IN THE COURT OF COMMON PLEAS OF AND LEE E. KENNEDY, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs VS. SARAH E. FLYNN TRIPP AND 07-6292 CIVIL TERM JAMES WALSH, Defendants IN CUSTODY CERTIFICATE OF SERVICE TIV I, Bradley L. Griffie, Esquire hereby certify that I did, the Lj? day of July, 2008, cause a copy of Plaintiffs/Petitioners' Petition to Allow Witnesses to Testify by Telephone to be served upon the Defendant/Respondent, Sarah E. Flynn Tripp, by serving her attorney of record by facsimile and first class mail, postage prepaid, at the following address: Marcus A. McKnight, III, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013 (Facsimile) 717-249-6354 DATE: IV 4 (1 Be, Esquire ntiffs/Petitioners ASSOCIATES 200 North Hanover Street Carlisle, PA 17013 (717) 243-5551 (800) 347-5552 N_ G ? s X:W { t DORIS MAE HOLT-KENNEDY and, : IN THE COURT OF COMMON PLEAS OF LEE E. KENNEDY, Plaintiffs/Respondents : CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW 2007 - 6292 - CIVIL TERM SARAH E. FLYNN-TRIPP and JAMES WALSH, . Defendants/Petitioners IN CUSTODY PETITION FOR CONTINUANCE AND NOW comes the Defendant/Petitioner, Sarah E. Tripp, by her attorneys, Irwin & McKnight, and presents the following Petition for Continuance: 1. The Petitioner is Sarah E. Tripp, an adult individual residing at 1633 Ingraham Street, North Las Vegas, Nevada 89030. 2. The Respondents are Doris Mae Holt-Kennedy and Lee E. Kennedy, adult individuals residing at 515 Big Spring Road, Newville, Cumberland County, Pennsylvania 17241. 3. The Petitioner was granted a custody by Order of Court dated March 20, 2008. A custody hearing has been scheduled for Monday, July 21, 2008, before the Honorable Edgar B. Bayley in this case by Order of Court dated June 4, 2008. Copies of said Orders are attached hereto and marked as Exhibit "A". 4. The Petitioner, Sarah E. Tripp, has advised her counsel that she is unable to return to Pennsylvania from Las Vegas due to her work. Due to the nature of the allegations, it is very important that the Petitioner be able to attend the hearing. 5. Counsel for Petitioner, Sarah E. Tripp, requests a rescheduling of this hearing until the Petitioner is able to return to Pennsylvania, or in the alternative, that the Petitioner be permitted to file a new petition seeking custody of her son with the Custody Conciliator. WHEREFORE, Petitioner, Sarah E. Tripp, respectfully requests a continuance of the hearing until Petitioner is able to schedule time off from her work to return to Pennsylvania or in the alternative to permit the Petitioner to file a new Custody Petition with the Custody Conciliator seeking custody of her son. Respectfully submitted, IRWIN & McKNIGHT By: Attorney f laintif?? 60 West P mfret Street Carlisle, ennsylvania 013-3222 (717) 249 353 Supreme Court I. D. No. 25476 Date: July 21, 2008 EXHIBIT "A" DORIS MAE HOLT-KENNEDY AND LEE E. KENNEDY, PLAINTIFFS V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RECEIVED SARAH E. FLYNN TRIPP AND MAR 2 5 2008 JAMES WALSH, DEFENDANTS 07-6292 CIVIL TERM IRWIN & McKNIGHT LAW OFFICES IN RE: CUSTODY ORDER OF COURT AND NOW, this :"ay of March, 2008, the complaint of Doris Mae Holt- Kennedy and Lee E. Kennedy for primary physical custody of Luke James Flynn, born October 28, 2001, IS DENIED. Unless the mother and the grandmother agree to another method of transfer, once this kindergarten year is completed, upon one week prior notice by Sarah Flynn Tripp to Doris Mae Holt-Kennedy, the mother may pick up Luke in Newville and take him to her home in Victorville, California, where she shall have custody. By thj:?-Court, Edgar B. Bayley, J. Richard L. Webber, Jr., Esquire For Plaintiffs Marcus A. McKnight, III, Esquire For Sarah E. Flynn Tripp :sal TRUE C" `Y Q CORD M Ry bYhucof, ! halre unit. set my hand iInof .....? S..LJ ay 0", DORIS MAE HOLT-KENNEDY AND LEE E. KENNEDY, PLAINTIFFS V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SARAH E. FLYNN TRIPP AND JAMES WALSH, : DEFENDANTS 07-6292 CIVIL TERM IN RE: CUSTODY OPINION AND ORDER OF COURT Bayley, J., March 20, 2008:-- On October 27, 2007, Doris Mae Holt-Kennedy, age 60, and her husband Lee E. Kennedy, age 55, filed a complaint in custody against her daughter Sarah E. Flynn Tripp, age 42, and James Walsh, age 56. Tripp and Walsh are the parents of Luke James Flynn, age 6, born October 28, 2001. A hearing was conducted on February 28, 2008. Luke was born in Scranton, Pennsylvania. His parents, who never married, lived together after his birth.' They separated in August, 2003, when the mother took Luke to live in the home of her maternal grandmother, Doris Fries, in Victorville, California! The father never saw Luke again until the hearing on this case on February 28, 2008. Nor has he provided any support for him, or contacted him in any way. ' The mother was married to Patrick Flynn before she lived with James Walsh. Luke is her only child. 2 Doris Kennedy was present when Luke was born. When the mother, Luke and the father lived in Scranton she would see Luke about once a month. 07-6292 CIVIL TERM The mother and Luke lived in her grandmother's home in Victorville until January, 2004, when they moved into an apartment in the area. The mother was involved with Daniel Tripp and he often stayed in her home. In June of 2005, the mother was having significant financial difficulties and about to be evicted from a home she and Luke had moved into after living in the apartment. She called her mother who lives in Newville, Cumberland County. She told her that Luke was aggressive and that she could not handle him. She asked her to come to California and take Luke to Pennsylvania. Luke's grandmother went to California and took the following custody agreement which the mother signed on June 19, 2005. KNOW ALL MEN BY THESE PRESENTS, that I, SARAH E. FLYNN TRIPP, of 22839 Lone Eagle Road, Apple Valley, California, the natural parent of the minor child, LUKE JAMES FLYNN, born October 28, 2001, hereby grant, give and set over custody of said LUKE JAMES FLYNN, to DORIS MAE HOLT-KENNEDY, of 430 Shippensburg Road, Newville, Pennsylvania, to exercise such custody while said child is in her care and control to the same extent and with the same rights, privileges, duties and responsibilities as would otherwise be vested in the above- named natural parent, SARAH E. FLYNN TRIPP, of the said LUKE JAMES FLYNN. Said duties and responsibilities to include but not be limited to provision of proper health and medical care, authorization of medical care including consent and authorization for all necessary, ordinary and extraordinary medical care provided by a physician, hospital, clinic, or other properly trained medical personnel. And further imposing upon DORIS MAE HOLT-KENNEDY all of the responsibilities of proper supervision and care to secure the best interests and welfare of said minor child. The mother testified that it was her intent to have her mother care for Luke until she was able to adequately care for him, which she felt would be by the end of the summer of 2005. The grandmother testified that it was her intent to give Luke back to -2- 07-6292 CIVIL TERM his mother when she got her life together. On June 22, 2005, the grandmother brought Luke into her three bedroom home with her husband Lee Kennedy.' Luke was very aggressive; he would hit his grandmother; he was afraid; and he often cried. He was not potty trained. He was thin but physically well. The grandmother had Luke evaluated at the Capital Area Intermediate Unit. They accepted him for enrollment for speech and behavioral therapy which began in August, 2005. Luke's aggressiveness quickly dissipated. When he started at the Capital Area Intermediate Unit, he had very limited vocabulary and speech. Luke made good progress there, and he started kindergarten in August, 2007. He is doing alright although it takes him more time to comprehend things. He works hard but has trouble remembering. He has two special speech sessions in kindergarten each week. His kindergarten teacher testified that he was not yet close to not needing additional instruction. The school has an action plan to improve his writing and vocabulary. While it is too early to tell, it may be appropriate for Luke to repeat kindergarten next year.` The grandmother testified that for the first year Luke was with her the mother would call from California approximately once a month. She would ask if Luke was ' She married Kennedy in 1985. He works for Lucent Technology. The grandmother's first husband, who died, adopted Sarah. The grandmother works by providing care each day for two hours in the home of an elderly woman. 4 The grandmother attends Luke's kindergarten class twice a week. She takes him to church each week where he interacts well with children in his Sunday school class. -3- 07-6292 CIVIL TERM happy but never made inquiry into the details of his life. After the first year the mother called more often. The mother never sent any cards or gifts until the second year. She never mentioned regaining custody until just before Luke started kindergarten in the fall of 2007. When the grandmother told the mother that Luke was still having issues, the mother said that she would still like to have Luke, but no date was set. On October 9, 2007, the mother, who had not seen him since July 19, 2005, came to the grandmother's home unannounced and demanded to immediately take Luke to California. The mother had taken a bus from California to Harrisburg, and a taxi to the grandmother's home. The taxi driver was waiting. Luke was scared and crying. The grandmother would not let the mother take him. The police were called. Things finally calmed down when the mother agreed to leave without Luke. The grandmother then allowed her to come into her home where the mother spent some time with Luke. After the mother left, she called her husband, Daniel Tripp, who was in California.' He called the grandmother, was very hostile, and made threats against her. The mother returned to California. She next called Luke on October 27, 2007, which was the day before his sixth birthday. The mother testified that she has always called Luke regularly. She testified that she only signed the custody agreement because the grandmother had to have legal 5 She married Tripp on April 28, 2006. -4- 07-6292 CIVIL TERM authority to obtain medical services for him. She testified that at the end of the summer of 2005, the grandmother asked to extend her time with Luke until January, 2006, and she agreed. She testified that what triggered her coming to Pennsylvania on October 9, 2007, was that two days earlier she received paperwork from the grandmother seeking her consent to an adoption. The mother came to Pennsylvania again in December, 2007. On December 7, the grandmother allowed her to spend time in her home with Luke between 4:00 p.m. and 9:00 p.m., during which they had dinner. The mother spent time with Luke at the grandmother's home the next day between 9:00 a.m. and 2:00 p m. The mother was with Luke again when this hearing was conducted at the end of February, 2008. The mother has been calling Luke each Sunday evening. The grandmother testified that Luke knows his mother and loves her. She testified that Luke is now a happy little boy but he still has issues. She feels that he needs more help to get him to appropriate age level. Daniel Tripp, age 48, has a 2003 conviction for assault with a deadly weapon (a vehicle) for which he went to prison. He was paroled in July, 2004, but he went back to prison for six months on a parole violation between October, 2005 and March, 2006. His current parole will end in April, 2008. He has three children, none of whom he sees. The mother testified that Luke got along with him during the period she was seeing him before Luke came to Pennsylvania. The testimony of Daniel Tripp was taken by phone. -5- 07-6292 CIVIL TERM His rambling discourses were to a great extent unintelligible.' Doris Fries, age 78, Luke's feisty great-grandmother, testified that she raised the mother from ages thirteen to twenty-one. The mother contacted her in the summer of 2003 and asked if she and Luke could live with her and start a new life. Fries agreed. After the mother moved out of the Fries' home to an apartment in January, 2004, she struggled. Fries testified that the mother could not handle Luke and ultimately decided to let him live with the grandmother in Pennsylvania so that she could get along with her life. It was Fries impression that, at that time, the mother was more interested in Daniel Tripp then she was in Luke. Fries testified that the mother now comes to her home at least once a week. She often asks to borrow money and asks for food.' The mother is a manager/sales associate for a newspaper where she has worked for the last five years. Tripp works in a warehouse, and has a paper route, for the same paper. She earns approximately $3,800 a month and he earns approximately $1,500 a month. They live in a leased three bedroom home in Apple Valley which is about seven miles from the great-grandmother's home in Victorville. Apple Valley is in 6 Luke's father, James Walsh, testified after he heard the testimony of the mother and grandmother. He made the unbelievable statement that if Luke could not live with his mother, he would prefer that he be in foster care rather than with his grandmother. This from a man who has not seen his son for over five years, not contacted him in any way, and not provided any support to the mother or the grandmother for his care. ' In rebuttal, the mother testified that she once asked Fries for $20. She testified that Fries goes to Food Pantries so she has extra food. The mother knows a lot of young girls where she works so when Fries offered, she would take the food, but it was not for her. She testified "I just didn't want to make her feel bad about that, but it was not for me." -6- 07-6292 CIVIL TERM the high desert in southern California. The mother wants to enroll Luke in a private Christian (Baptist) school in Apple Valley that has all grades through 12. The paramount concern in a child custody case is the best interest of the child based on a consideration of all factors that legitimately affect the child's physical, intellectual, moral and spiritual well-being. Swope v. Swope, 689 A.2d 264 (Pa. Super. 1997). In K.B. II v. C.B.F., 833 A.2d 767 (Pa. Super. 2003), the Superior Court of Pennsylvania stated: With regard to a custody challenge by a third party, our Pennsylvania courts have expressed a strong preference for the rights of biological parents. In Charles v. Stehlik, 560 Pa. 334, 744 A.2d 1255 (2000), our Supreme Court articulated this view, stating: It is axiomatic that in custody disputes, "the fundamental issue is the best interest of the child." In a custody contest between two biological parents, "the burden of proof is shared equally by the contestants...." Yet, where the custody dispute is between a biological parent and a third party, the burden of proof is not evenly balanced. In such instances, "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. Thus, even before the proceedings start, the evidentiary scale is tipped, and tipped hard, to the [biological] parents' side." Id. at 339, 744 A.2d at 1258 (2000) (citations and quotations omitted); see also T.B. v. L.R.M., 753 A.2d 873 (Pa.Super.2000) (holding that biological parents have a prima facie right to custody over third persons) aff'd, 567 Pa. 222, 786 A.2d 913 (2001). (Emphasis added.) The mother maintains that her life has stabilized and that she now has an appropriate home with the financial means to care for Luke. The grandmother maintains that the mother has not made sufficient progress to adequately care for Luke. There is no doubt that the mother was not able to provide adequate care for Luke -7- 07-6292 CIVIL TERM leading up to the transfer to his grandmother in June, 2005. The grandmother created a stable and organized structure for Luke which quickly resulted in the cessation of his behavioral problems. She immediately obtained the services that were necessary to help him, and he is still in need of special services. Luke was just short of three years eight months old when the mother turned him over to the grandmother. On October 9, 2007, when the mother showed up unannounced at the grandmother's home and demanded to take Luke to California, he was almost six years old and she had not seen him for a little over two years and three months. No matter how frustrated the mother may have been upon learning that the grandmother wanted to keep Luke permanently, which was a change from her position at the time she took Luke, this precipitous action was not well thought out. Likewise, the grandmother should have discussed with the mother her desire to adopt Luke rather than taking the precipitous action of sending her a form to consent. What has changed since Luke came to Pennsylvania on June 22, 2005, is that the mother has married Daniel Tripp and together they now have stabilized their lives with sufficient earnings to maintain an adequate leased home in Apple Valley. The instability that led the mother to ask the grandmother to take Luke for what both considered a temporary period has ended. The issue; therefore, is not whether the grandmother would make a better parent than the mother. Rather, it is whether the mother now has the ability to adequately care for Luke. We believe she can and that she can address his special needs. The mother has not forfeited her prima facie right -8- 07-6292 CIVIL TERM to custody of Luke. There are no convincing reasons that Luke's best interest will be served by awarding custody to the grandmother. Given the circumstances, however, we will not order a transfer to the mother until Luke completes this kindergarten year. For the foregoing reasons, the following order is entered! ORDER OF COURT AND NOW, this _04* day of March, 2008, the complaint of Doris Mae Holt- Kennedy and Lee E. Kennedy for primary physical custody of Luke James Flynn, born October 28, 2001, IS DENIED. Unless the mother and the grandmother agree to another method of transfer, once this kindergarten year is completed, upon one week prior notice by Sarah Flynn Tripp to Doris Mae Holt-Kennedy, the mother may pick up Luke in Newville and take him to her home in Victorville, California, where she shall have custody. e The grandmother did not seek partial physical custody in case Luke was returned to the custody of his mother. She had standing to seek partial physical custody. 23 Pa.C.S. § 5313(a). The mother testified that she would agree to the grandmother having some partial physical custody of Luke. That is certainly in Luke's best interest. -9- Edgar B. Bayley, J. 07-6292 CIVIL TERM Richard L. Webber, Jr., Esquire For Plaintiffs Marcus A. McKnight, III, Esquire For Sarah E. Flynn Tripp sal -10- DORIS MAE HOLT-KENNEDY AND IN THE COURT OF COMMON PLEAS OF LEE E. KENNEDY, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. SARAH E. FLYNN TRIPP AND JAMES WALSH, DEFENDANTS AND NOW, this 07-6292 CIVIL TERM ORDER OF COURT y ` day of June, 2008, IT IS ORDERED: (1) A Rule is issued upon Sarah Flynn Tripp to show cause why the custody order dated March 20, 2008, should not be vacated and an emergency order entered granting temporary physical custody of Luke James Flynn to Doris Mae Holt-Kennedy. (2) Rule returnable at a hearing to be conducted in Courtroom Number.2, Cumberland County Courthouse, Carlisle, Pennsylvania at 1:30 p.m., Monday, July, 21, 2008. (3) The custody order dated March 20, 2008, providing for the transfer of Luke James Flynn to Sarah E. Flynn Tripp IS STAYED pending said hearing, and pending said hearing, Luke James Flynn shall remain in the custody of Doris Mae Holt-Kennedy, By the Court, Bradley L. Griffie, Esquire For Plaintiffs Marcus McKnight, Esquire For Sarah E. Flynn Tripp :sal Kevin ! Hess, J. for dgar B. Bayley, J. TRUE COPY FROM RECORIi is Tetlmony whereof, t sere unto set my bans Id rt Caro*. P.. IN IM a i of !'V fW , 00 DORIS MAE HOLT-KENNEDY AND LEE E. KENNEDY, Plaintiffs VS. SARAH E. FLYNN TRIPP AND JAMES WALSH, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 07-6292 CIVIL TERM AMENDED PETITION FOR EMERGENCY RELIEF PURSUANT TO Pa.R.C.P.1915.13 AND NOW, come Petitioners, Doris Mae Holt-Kennedy and Lee E. Kennedy, by and through their counsel, Bradley L. Griffie, Esquire and the law firm of Griffis & Associates, and petitions the Court as follows: 1. Your Petitioners are Doris Mae Holt-Kennedy and Lee E. Kennedy, adult individuals residing at 515 Big Spring Road, Newville, Cumberland County, Pennsylvania. 2. Respondent, Sarah E. Flynn Tripp, is an adult individual who is represented by counsel of record, Marcus A. McKnight, III, Esquire. Respondent's address is unknown. 3. Respondent, James Walsh, is an adult individual whose last known address is 938 Sanderson Street, Throop, Pennsylvania, 18512. 4. Petitioners are the paternal grandparents of the child, Luke James Flynn, born October 28, 2001. 5. Upon the filing of a Complaint for Custody by Petitioners herein, a hearing was held on February 28, 2008 to determine Petitioners' request for primary physical custody of the child. 6. Upon hearing, the Court entered an Order on March 20, 2008, said Order being attached hereto and incorporated herein by reference as Exhibit "A". 7. The Court simultaneously entered an Opinion in the said matter, which is attached hereto and incorporated herein as Exhibit "A", wherein the Court provided the basis and foundation for its determination, denying Petitioners' request for primary physical and legal custody of the child. 8. Upon receipt of the Opinion of the Court, Petitioners made arrangements to secure the services of a private investigator in the State of California for purposes of determining the factual accuracy of the claims made by Respondent, Sarah E. Flynn Tripp, under oath, which testimony formed the basis for the Cwt's determination in these proceedings. 9. The Court based its determination that it was appropriate to have the child returned to the custody of Respondent, Sarah E. Flynn Tripp, on the following factual claims of Respondent, Sarah E. Flynn Tripp: (A) "The mother is a manager/sales associate for a newspaper where she has worked for the last five years."; (B) "They [Mother and her current husband] live in a leased three bedroom home in Apple Valley"; (C) "mother wants to enroll Luke in a private Christian (Baptist) school in Apple Valley"; (D) Mother had what appeared to be a signed lease evidencing her rental of a three bedroom apartment"; and (E) "The mother has married Daniel Tripp and together they have now have established their lives with sufficient earnings to maintain an adequate leased home in Apple Valley." 10. Based upon information secured by a private investigator in California, it has been determined that: (A) Sarah E. Flynn Tripp and Daniel Tripp were not residing at the residence claimed in their sworn testimony at the time of the hearing in this matter. (B) The named land-lady on the lease presented by Sarah E. Flynn Tripp, Kathy Goss, has denied that she has a signed lease or that there *.any signed lease between her and Sarah E. Flynn Tripp or Daniel Tripp. (C) The named land-lady on the lease, which document was presented as a legitimate exhibit by Sarah E. Flynn Tripp, confirmed that Sarah E. Flynn Tripp and Daniel Tripp were evicted from the residence that they claimed to be renting on or about August 8, 2007 for nonpayment of rent. (D) The land-lady, Kathy Goss, has advised the private investigator that the lease that was presented in the Court of Common Pleas of Cumberland County as a legitimate document was a document that the said land-lady had never seen before. (E) The land-lady, Kathy Goss, confirmed that the terms of the written lease that was presented as an exhibit by Respondent, Sarah E. Flynn Tripp, before the Court of Common Pleas of Cumberland County were never terms to which Kathy Goss and Sarah E. Flynn Tripp or Daniel Tripp had agreement. (F) The land-lady, Kathy Goss, confirmed that Sarah E. Flynn Tripp and Daniel Tripp rented a "room" from her in December 2006, at a rental rate of $200.00, but that the rental was solely for the rent of a room and the tenants did not have access to the entire home, but rather were limited to one room which had its own outside entrance. (G) The land-lady, Kathy Goss, confirmed that Sarah E. Flynn Tripp and Daniel Tripp (hereinafter jointly the "Tripps") resided in the one room that they rented for approximately seven months, when Ms. Gosfwas compelled to evict them from the home for nonpayment of rent, as they were three months behind in their rent. (H) The land-lady, Kathy Goss, indicated that the Tripps departed the residence on or about August 8, 2007 and that she had no further contact with either of the Tripps from that time forward. (I) The land-lady, Kathy Goss, confirmed that she heard arguments and physical altercations between Sarah E. Flynn Tripp and Daniel Tripp and ultimately saw injuries to Sarah E. Flynn Tripp evidencing the physical confrontation that resulted from Daniel Tripp's attacks on Sarah E. Flynn Tripp. (J) The employer with whom Respondent, Sarah E. Flynn Tripp, testified she had been employed for more than five years has indicated to the private investigator that Sarah E. Flynn Tripp has never been an employee for the newspaper, but rather served as an independent contractor simply delivering newspapers. (K) Based upon information received, it is believed and, therefore, averred, that it would be impossible for Respondent, Sarah E. Flynn Tripp, to earn the sum of $3,800.00 per month as claimed in the court proceedings. (L) At the time the private investigator secured information from the Apple Valley Christian School where Respondent claimed the child would be attending for the 2008-2009 school year, the child had not been registered and had not been placed on a waiting list for registration k 11. It is evident from the testimony and information presented by Respondent, Sarah E. Flynn Tripp, that she provided false and misleading information and specifically committed perjury on substantive matters before the Court. 12. It is apparent that Respondent, Sarah E. Flynn Tripp, either provided forged documents or had someone assist her in securing forged documents to present to the Court in substantive matters relevant to the custody proceedings. 13. As Respondent, Sarah E. Flynn Tripp, provided false testimony, which formed the basis of the Court's determination denying Petitioners primary physical custody in this matter, the matter should be re-examined before the Respondent, Sarah E. Flynn Tripp, is permitted to regain custody of the child. 14. The conduct of the Respondent, Sarah E. Flynn Tripp, in perjuring herself before the Court and providing forged documents to the Court, is further evidence of the fact that she is an inappropriate role model and otherwise fails to have the required stability necessary to take custody of the child and raise the child at issue in this case. 15. Petitioners, through counsel, are providing this information relative to Sarah E. Flynn Tripp's perjury to the Cumberland County, Pennsylvania, District Attorney's office for further investigation, with the request that criminal proceedings be considered. 16. The Court's Order of March 20, 2008 had been appealed by the Petitioners herein to the Pennsylvania Superior Court. 17. By Praecipe dated May 30, 2008, which has been filed with the Superior Court of the Commonwealth of Pennsylvania, Petitioners' appeal of the Court's Order of March 10, 2008 has been withdrawn. 18. Notice of the intention to file the within Amended Petition, along with a specific indication of exactly when the Petition is going to be presented to the Court, has been provided to Respondent, Sarah E. Flynn Tripp's, counsel of record, Marcus A. McKnight, III, Esquire, with the request that Attorney McKnight be present in person or by telephone or that someone representing his office be available in person or by telephone to express the Respondent's position regarding these matters. WHEREFORE, Petitioner requests your Honorable Court to enter an Order staying the Order of Court dated March 20, 2008 entered by the Court in this matter, pending a review of all claims set forth herein, that the Court enter an Order providing Petitioners with primary physical and legal custody of the child pending further Order, and that the Court issue a Rule upon the Respondent, Sarah E. Flynn Tripp, and James Walsh to show cause, if any they have, as to why the Court should not vacate its Order of March 20, 2008 in favor of an Order granting Petitioners primary physical and legal custody of the child. Respectfully submitted, Griffie, Esquire o ey for Plaintiffs/Petitioners 200 North Hanover Street Carlisle, PA 17013 (717) 243-5551 (800) 347-5552 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. Section 4904, relating to unsworn falsification to authorities. DATE: 6 3 C? :' DORIS MAE HOLT-KENNE 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. Section 4904, relating to unsworn falsification to authorities. DATE: 6 3 Os ??-t/Jvtu L E E. KENNEDY Laserfiche WebLink http:/hecords.cepa.net/weblinkSublic/DocView.espx?id=173724&d. Laser f ache Vile b Li n k Logout 13f'OWSt~ Page 0 of 74 Go _ I U.:? I 'W OD ?. U ( C'+ G 22.46% Pages 50 to ffa Prothonotary_7 > Civil Dockets > 2007 Dockets > 07- 6201 thru 07- 6300 > 07.6292 DORIS MAE MOLT-KENNEDY IN THE COURT OF COMMON PLEAS OF AND LEE E KENNEDY, : CUMSERi.AND COUNTY. PENNSYLVANIA PLAINTIFFS V. 13A RAM E. FLYNN TRIPP AND JWEB WAL13M, MFENDANTS 07.8202 CML TERM 1H.B?? atlstr Y 1 r Daytey, J„ Numb ao, 2008:- On October 27, 2007, Dods Mae Mott-Kennedy, ape 60, and her husband Lee E. Kennedy, age 66, filed a oompiaint In malady against her daughter harsh E Flynn Tripp, W Al, and James Walsh, age 86. Tripp and Walsh are the parents of Luke Jawas Flynn, age 6, bom Oclober 28, 2001. A hearing was conducted on Febfwry 28. 2008, tie was bom in 6aranton, Permaylvants. Hilt parents, who never married, lived together after his birl'b.° They separated in fwguet. 2003, when the nxihor took Luke to live in the home of her maternal grendmolher, Doris Fries, in ArAorvilie, California.' The father newer saw Luke again unW the hearing on this case on February 28, 2008. Nor hoe he pmvhied any support for him. or contacted him In any way. 'The matherwas married to Patrick Flynn bei"ore she lived with Jemss Walsh. Luke is her 0* child. ' Doris Kennedy was present when Luke was bom. when /me mother,,Luke and the father livid M Soranlo» ehe would Sae U *9 about me a month. Exhibit "A" of 3 snonnnu 11.112 UTR ,aserfictie WebLink http://records.ccpa.neVweblink Sublic/DocView.aspx?id=173724&d Lasiar fjij hW We b Li n k Logout Browse Page 51 of 74 Go ,,..._..._.........,..__. _, f1?11 1? L 1_ ' Qo° po I f ' 22.46% _ S! Pages 51 to Prothonotuy_7 > Civil Dockets > 2007 pockets > 07- 6201 thru 07- 6300 > 07.6292 074M OML TERM The mmther end Luke Iived In bar grandmoihers horrm in Violorville uonM January, 2004, When they moved into en apartment In the am. The mother was hnraimed with Denial Tripp end he elan stayed In hot home. In ,Mme of 2006, the mother was having significant fklanoWl Woulbes and about to be amlvtod from a home i she end Luke had moved Into after (wing In the apartment. She caked her mothar who lint in Newv%, Cumberland County. She told her that Luke was vWravaive and that ' she could not handle him. She asked tier to come to Caliiomin and take Luke to Pennsylvania. LuW;t grandmoarer went 1o Calfamle and tac* Ere toilow" ouatody agreement which the mother signed on June 19, 201)5. KNOW ALL MEN BY TAM PIZtAMM, that t, sARAH E FLYW MPP, of 22830 trot Eos Road, fipple Vaft. coNa nk6 the natural parent of the Minor oltld, LUKE JM2* FLYNE+f, bom October 28, 2001, hsraby grant, of" and aM over cuaWdy of eadd LUKE JAMB ! FLYNN. to DORIS MAE 1tt>,i.Y-KONtPEDY, of 43o shippenaburg Road. falewvllle, Pennaybenia, to exercise atrch cualo* while said child i6 in her rate and oDoWol to the same exhrrt and with the Germ rights, p*4i ages, duties and reeporr 6ftes as would otherwise to vested in the above. nwmd natural panrnL &WH E FLMN TRIPP. of the said LUKE JAM FLYAIMI. Said duff and reapemaitraw to include but not be frraihd to provisbn of proper haailh and awdfoal care. an9horhadon of medkxett pro inky consam and auEronroon lot ell nacesaary, ordbtary and extraordinary modiorrl aura provided by a physician, twopbal, clime, or other properly trained medical personnel. And further imposing upon t>OM MAE WLT41ENNEDY aii of the reeponaRNlitles of proper eupewieion and am to secure the beat 1 lnaueata next weUare of OW minor child. The aKAer testified that It was her herd to have bet mouser owe for 'Luke w* i she was able to adegxmlWy ogre for hsn, which she fait would be by the and of the swnmer of 20176. The grdndmether testified that fi was her intent to give Luke back to I •2- i I i i I of3 51?Ql,)nAR ».zr DAA Lasietfiche WebLink bttp://records.rcpa.net/weblink_public/DocView.aspx?id=173724&d.., L.aserf iche WQbLink Logout Browse Page 52 of 7a Qb 6D l Q ?i ?:.? 22.4690 P8985 52 t0 Prothonotery_7 > Civil Dockets > 2007 Dockets > 07.6201 thru 07- 6300 > 07-6292 07-6282 CIVIL TERM his mother when she got her Rte "ther. On June 22, 2006, the grandmother brought Luke Into bar three bedroom homy with her husband Lee Kennedy.' Luke was very apples"; he would hit his grandmother, he was afraid; and he often orisd. He was not potty tnsined. He was thin but phyaio* wall. The grandmother hed Luke evaluated of On Capital Area lntermsdiate Unit They skated him for enroRmem for speech and behavioral fherapy which began in August, 2006. Luke's eiggressiivaneas quickly dissipated. V*w he started at the Capital Area Intermediate Unit he had very limited vocabulary and speach. Luke made good progress there, and he alerted kindergarten in August, .2007. He Is doing aklghl although It takes him more time to comprehend things. He wo*s hard but has trouble remembering. He has two special . speech sessions in ktndergarten each week His kindergarten teacher tesMad that he was not yet dose to not needing addlisonal instruction. The school lies an action plan to improve his wriftng and vocabulary. While It is too early to tell. it may be appropriate for Luke to repeat kindergarten mid year.' The grandmother testified that for the fast year Luke was with her the mother would ad from CaMornie epprownetely once a month. She would ask if Luke vias ' She married Kennedy in 7865. He works for Lucent Toc hmiogy, The grandmothers fiat huabmd, who died. adopted Serah. The grandmother works by providing care each day for two hours in the home of an aiderly worrmn. `The grandmother attends Luke's kindergarten class twice a week She lakes him to church each week where he interacts wall with chpdran in his Sunday school class. -3- 5/29/2008 12:36 PM Lagerficbe WebLink http://rocords.cope-net/woblink_public/DocView.aspx?id=173724&d.. Laserfiche' WebLink Logout 13rtaW&t? + Pape 53 of 74 Co c oo + Pages - to /a 3 .? ?? ?.?? ?c oa 22.469/6 - Prothonotary_7 > Civil Dockets > 2007 Dockets > 07- 6201 thru 07- 6300 > 07-6282 .T ? 07-0292 CIVIL TERM happy but never mode inquiry into the datttk of his Its. After the first year the mother Wed more often. The mother never trenl any cards or gifts until the second year. She never mantloned repslninp custody urd® juat before Luke started kindergarten in the tell of 2007. When the prendmoihw told the mother that Luke was adll It" Issues, the mother said that she would *01 Ike to have Luke, but no date was not On October fl, 2007, the mother, who had not seen hire skloe July 19, 2008, came to Ute grandmothers home unannounced and demanded to immediately take Luke to Callfomfa. The mother had taken a bus from California to Harrie0urg, and a tnd to the grandmother's home. The tern driver was welling. Luke was scared and cryfog. The grandmother wWld rmt tot the mother take him. Ttre poht b were called. Things finely ?valmsd down v/hen the mother agreed to leave without Luke. The grandmother then allowed her to come into her home where the mother spent some time With Luke. After, the mother fak, she called her husband, Danfal Tripp, oRro was in California.' He Called the grandmother, was very hostile, and made threats against her. The mother re?umeo Io Califomie She next called Luke on Odobsr27, 2047. which was the day before his shdh brit-Any The mother tesdfied that she her. always called tyke regularly. She leetified that she oely signed the custody npreemeM because the grandmother had to have regad Shy mama- Tripp on ApN 28.2006. 4- 5/29/2008 12:36 Plv I.Merfiche WebLink http://records.ccpa.net/weblink_public/DocView.aspx?id=173724&d.. LaserflchW WebLink Browse flC GG V, CCU DD g ' Logout 6 Page 54 of 74 Go ® 0 M '1) Cil' =%I r-22,446%% t+' Pages 54 to 1774 Prothonotary_7 > Civil Dockets > 2007 Dockets > 07- 6201 thru 07- 6300 > 07-6292 s 07.6202 GVIL TERM authority to obtain modfcal eei vion for him. She testlhad that at the and of the summer of 2006, the grandmother asked to extend her time with Luke until January, 2006, am she avood. She testified that what triggered her coming to Pennsylvania on October 9. 2007, was that two days earlier she received paperwork from the grandmother sacking hot wrimmt to an adoption, The mother come to Pennsylvania again in December, 2007- On December 7, the grandmother allowed her to spend time to her tome with Luke batween 4:00 p.m. and 8:00 p.m., during which they had dinner. the mother spent time with Luke al the grandmothers home the next day betwoen 9:00 a.m. and 2:00 p m. The mother was with Luke again when this heafarq was wndudled at the end V February, 2008. The . mother has been calling Luke each Sunday evening. The grandmother t"050 that Luke Imows hie mother and loves het. She testified that Luke 4e now a happy little boy but he still has issues. She fools that he needs mac help to get him to appropriate age level. Daniel Tripp, ape 48, has a 2009 conmclion for assault With a deadly wespon (a vehicle) for which he went to prison. He was paroled In July, 2004, but he went back to prison foi six rronft on a parole violation between October, 2005 and March, 2005. His current parole will and in April, 2008. He has three childon, none of whom he ease. The mother teatlflad that Luke got along Will him during the period she was seeing him before Luke came to Pennsylvanla. The testimony of Daniel Tripp was taken by phone. •3- 5/29/2008 12:37 PM Lasertiiche WebLink http://records.ccpa.net/weblink_public./DocView.aspx?id=173724&d.. LaserFiche` WebLink Logout •? Browse Page 55 of 74 Go r 9 °on Q ®0 ?'?' 22.46°% ±! Pages 55 to 74 Prothonotary2 > Civil Dockets > 2007 Dockets > 07- 6201 thru 07- 6300 > 07-6282 07.9262 CIVIL TERM His rambling dboourses were to a greet extent uhintellig(bie ° Doris Fries, age 76, Luke's iaisly gres4 grruhdrrhother, Wmffied then she raised the mother from ages Orisen to twenty-one. The mother eomacted her in the summer of 2DD3 and asked 9 she and Luke could Ave wiRb her and staff a now All. F(+iss agreed. Allier the mother moved out of the Files' home to an apartment in January, 2004, the struggled. Fries tsetfied that the mother could not handle Luke s rW Oftetely decided to let him live w4h the grandmother in Ponns&ante so that she could pet along with her life. it was Fries impression that, at that tme, the mother was more Interested In Daniel Tripp than she was in Luke_ Fries testified thot the mouser now comes to her home at least once a week. She often asks le borrow money and asks for food' The mother is a menagerisales sasociate for a newspaper where she has worked for the last five years. Tripp works in a warehouse, and bas a paper route. for the same paper. She earns appmximoteiy 53.900 a month stud he earns approxaaately $1,5D0 a month. They live in a leased three bedroom home In Apple Valley which is about sevon miles from the great-grandmothers home in Viclorvifle. Apple Valley is ir. ' L.uke's father, James Walsh, testified alrar he heard the testimony of the mother and grandmother. He made the unbelievable statement that if Luke could not live with his mother, he would prefer that he be in fostar care rather than with his grandmother. This from a man who has not seen his son for over five years, not contacted him in any way. and not provided any support to the mother or the grandmother for his rare. I in rebuttal, the mother laWfiied that she once asked Fries for $20. She totalled thud Fries goes to Fred Parrtries to she has extra Good. The moberAnews a lot of young girls %tore she woft vo whin Fries offered, she would take the food, but 9 was not for her. She testified 1 Just didn't want to make her (eel fad about that, but it was na la me! -8- 5/29/2008 12:37 PN Laseffiche•WebLink http://records.ccpa,net/woblink_public/DocView.aspx?id=173724&d.. Lased iche' We b l i n k Logout Page 56 of 74 Go Browse 6-1: Q9 20" ®® a 'r) Or 22.46% *! Pages 56 t0 74 Prothonotary_7 > Civil Dockets > 2007 pockets > 07- 6201 thru 07- 6300 > 07-6292 1774292 CIVIL TERM the high desert in southern California. The mother wants to enroll Luke in a private Christian (9a,ptict) school in Apple Valley that has ail grades through 12, The paramount eorreem in a child ouslody use Is the beat rnleresi of the child bared on a consideration o10 (actors that legitimately affect the child's physical. Intellectual, moral and spiritual well-tioN. Swoos v, Swope" 809 A.2d 254 (Pa. Super. 1897), In KO. If v, C,B.F., 833 A.2d 757 (Pa. Super. 2003), the Supenor Court of Pannsylvonip stated: With regard to a custody challenge by a third party, our Pennsylvania courts have expressed a strong preference for (ire rights of biological parents. In Chsdes v, Srihrfk, 500 Pa., $34, 744 A.2d 1255 (2000j, our Supreme Court articulated this view, eialingr It is eadometic that in custody dispuiea,'ghe fundamental isam is the best )ntareat of the child." In a custody oantest between two, biological parents, "the lowdern of proof is, shared equally by the contestants...." YeL v,4nere die custody dispute is behocen a biological parent and a third potty, the burden of proof is not evenly balanced. In such instances, 'We parontta have a 'prima facia right to custody,' which w Ill be Coif o tad only ff 'convincing masons' appear that ft child's best Isdareat will be served by an award to the third party. Thus, own before the promodinps start, the avlderAW seals is lipped, and upped hard, to the (bioiogical) parents' side." 14. at 336, 744 A.24 at 1268 (2000) (ottabons and quotations omhtted): as@ oleo 7.8. Y. J_R.JN.. 753 A2d 87$ (Pa.SWW.20M) (holdit that biotegical parents have v prima Wo right to custody over third persons) acrd 367 Pa. 222.788 A2d 913 (2001). (Emphasis added.) The mother merrriains that her life has SlatxHxed and that she now has an appropriate home with the frnenrial means to care for LUke. The grandmother maintains that the molhar has not made sufficient progress to adequately care for Luke There is no doubt that the mother was not able to provide adequate care for Luke .7. 5/?9/?OOR 12 ;R Plv Laserfiche WebLink http://records.ccpa.net/weblink_public/DoeView.aspx?id=173724&d.. Laserfiche WebLink Browse Q Logout Page F of 7.4 Coo i L=F ? 4) 0 ' ?' 22.46% ' Pages 57 to 174 Prothonotary_7 > Civil Dockets > 2007 Dockets > 07- 6201 thru 07- 6300 > 07-6292 079292 CIVIL TERM leading up to the treneter to hit, grandmother In June, 2005. The grandmother created a stable and organized structure for Luke which qulcky, resulted in the cessation of No behavioral problems. She immediately obtained the "Man; that were necessary to help him, and he is still in need of spedsl servioes. Luke was lust short nl thme years eight months, old when the mother tamed tam opt to the grandmother. On Od olber 8, 2007, when floe mother showed up unannounced st the grandmother's home and demanded to take talks to California. he was almost six yearn old and stw had not assn him for a M over two years and three momlhs. No matter how frustrated the mother may have been. upon learning that the grandmother wooled to keep Luke permanently. which was s change from her position all the time she took Lake, this precipitous action was not wall thought ouL Likewise, the grandmother should have discussed with the mother her desire to adopt Luke rather than taking the precipitous action of sending her a form to Cons M Whal has changed since Luke cane to Pennsylvania on June 22. 2005, is ttwt the mother has married Daniel Tripp and together they now have stablktsd their lives with sufficient earnings to maintain an adequate leased hone in Apple Valley The instability that led the mother to ask the grandmother to take Luke for what both considered a temporary period has ended, The issue: therefore, is not whetter the grandmother world make is better parent than the rnpthter. Rather. it is whether the mother now has ft ability to adequately woe for Luke. We bekeve she can and that she can address his special needs. The mother has net forfeited hot prime facie right -8- 5/29/2008 12:39 PN -aserfrche WebLiak http://records.ccpa.net/weblink_public/DoeView.aispx?id=173724&d.. LaserFiche' We b l i n k Logout Browse Page F58 of 74 Go % F Pages 58 to 174 ?f Prothonotary>?Civil Dockets > 2007 Dockets > 07- 6201 thru 07- 6300 > 07.6292 ' 074282 CAVIL TERM to ostody of Luke. There are no convincing roaeons that Luke's heat krimaat will be served by awarding custody to the grandmother. Given the airou ns6enoes, howavar, we wilt not cider a imnsfer to the mother until Luke completes this kindergarten year. For the foragoing reasons, the following order is entered.' DUR7 ,,1 ORDER DF 2 AND NOW, this day of March. 2008, the complaint a Darin Mae Hell Kennedy and Lee E. Kennedy for primary physical custody or Luke James F"n, born October 28, 2001,15 OFENIED. Unless the mother and the grandmottar agree to another method of transfer, once this kindergarten year is completed, upon one week prior notice by Sarah Flynn Tripp to Doris Mae Holt-Kennedy, the mother may pick up Luke in Nevsvl0rs and take him to her home in Victwvilie. Caldomia, wnate she shah have custody. By the?Gd ru! ./// Edgar 8.8a0ey, J. The grandmother did not seek partial physical custody in case Luke was resumed b the custody of his mother. She had standing to ask partial physical custody. 23 Pa.C_S. § 6313{a). The mollm tesdfied that she virould agrae io the grandmother having some partial phyaiW custody of Lute. That is 4"inly In.Luke's best interest -a- 5/29/2005 12.39 P1 DORIS MAE HOLT-KENNEDY : IN THE COURT OF COMMON PLEAS OF AND LEE E. KENNEDY, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs VS. SARAH E. FLYNN TRIPP AND : 07-6292 CIVIL TERM JAMES WALSH, Defendants CERTIFICATE OF SERVICE rd I, Bradley L. Griffie, Esquire hereby certify that I did, the T day of June, 2008, cause a copy of Plaintiffs/Petitioners' Amended Petition for Emergency Relief Pursuant to Pa.R.C.P. 1915.13 to be served upon the Defendant/Respondent, Sarah E. Flynn Tripp, by serving her attorney of record by facsimile and first class mail, postage prepaid, at the following address: Marcus A. McKnight, III, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013 (Facsimile) 717-249-6354 DATE: r ie, Esquire ey or Plaintiffs/Petitioners VERIFICATION The foregoing document is based upon information which has been gathered by counsel for the petitioner in the preparation of this document. To the extent that the document is based upon information which has been gathered by counsel, it is true and correct to the best of the counsel's knowledge, information and belief. The undersigned is verifying on behalf of the petitioner according to 42 Pa.C.S.A. § 1024(c)(2). The undersigned understands that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. Date: July 21, 2008 DORIS MAE HOLT-KENNEDY and, LEE E. KENNEDY, Plaintiffs/Respondents V. SARAH E. FLYNN-TRIPP and JAMES WALSH, Defendants/Petitioners IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 2007 - 6292 - CIVIL TERM IN CUSTODY CERTIFICATE OF SERVICE I, Marcus A. McKnight, III, Esquire, hereby certify that a copy of attached document was served upon the following by depositing a true and correct copy of the same in the United States mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and addressed as follows: Bradley L. Griffie, Esq. Griffie & Associates 200 North Hanover St. Carlisle, PA 17013 IRWIN & McKNIGHT By: Marcus . M 'ght, , 60 West et Street Carlisle A 17013 (717) 49-2353 Sunr a CourtI. . o.25476 Date: July 21, 2008 ?? r ? ?, r _.,. ( ,: .,..,.. ., -..,.. ?a .,. .. ;., _1 is ? C J . ., 4.i.J ;.,,? DORIS MAE HOLT-KENNEDY AND IN THE COURT OF COMMON PLEAS OF LEE E. KENNEDY, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. SARAH E. FLYNN TRIPP AND JAMES WALSH, DEFENDANTS 07-6292 CIVIL TERM ORDER OF COURT AND NOW, this !ZtS ?_ day of July, 2008, upon the motion of defendant, Sarah E. Flynn Tripp for a continuance, unopposed by plaintiffs, and on agreement that the case shall be referred back to a conciliator who shall set a conference on the issue of whether the custody order dated March 20, 2008, should not be vacated and replaced with another order, IT IS ORDERED that the case is referred back to John J. Mangan, Esquire, who shall schedule a conference. Luke James Flynn shall be in the primary physical custody of Doris Mae Holt-Kennedy pending further order of this court. ZBradley L. Griffie, Esquire For Plaintiffs -Marcus McKnight, Esquire For Sarah E. Flynn Tripp /John J. Mangan, Esquire Custody Conciliator Court Administrator :sal Co 'e -s rn?lc. Lj? P By the Edgar B. Bayley, J. rs c Vi ? C ? CV r LO C ' ? 3 . - < - -' FF Cry N DORIS MAE HOLT-KENNEDY AND LEE E. IN THE COURT OF COMMON PLEAS OF KENNEDY PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. SARAH E. FLYNN AND JAMES WALSH DEFENDANT 2007-6292 CIVIL ACTION LAW . IN CUSTODY ORDER OF COURT AND NOW, Tuesday, July 22, 2008 , upon consideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear before John J. Mangan, Jr., Esq. , the conciliator, at 4th Floor, Cumberland County Courthouse, Carlisle on Tuesday, September 02, 2008 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/ John j. Mangan, Jr., Esq. Custody Conciliator The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilites Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. YOU SHOULD TAKE THIS PAPER TO YOUR ATTORNEY AT ONCE. IF YOU DO NOT HAVE AN ATTORNEY OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 'v-v, ?y 49) r- I? DORIS MAE HOLT-KENNEDY AND LEE E. KENNEDY, PLAINTIFFS V. SARAH E. FLYNN TRIPP AND JAMES WALSH, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : 07-6292 CIVIL TERM ORDER OF COURT AND NOW, this 2tS ?_ day of July, 2008, upon the motion of defendant, Sarah E. Flynn Tripp for a continuance, unopposed by plaintiffs, and on agreement that the case shall be referred back to a conciliator who shall set a conference on the issue of whether the custody order dated March 20, 2008, should not be vacated and replaced with another order, IT IS ORDERED that the case is referred back to John J. Mangan, Esquire, who shall schedule a conference. Luke James Flynn shall be in the primary physical custody of Doris Mae Holt-Kennedy pending further order of this court. By the C drt, Edgar B. Bayley, J. Bradley L. Griffie, Esquire For Plaintiffs Marcus McKnight, Esquire For Sarah E. Flynn Tripp John J. Mangan, Esquire Custody Conciliator Court Administrator V\ :sal ?a SEP 0 4 200?po DORIS MAE HOLT-KENNEDY and IN THE COURT OF COMMON PLEAS LEE E. KENNEDY CUMBERLAND COUNTY, PENNSYLVANIA V. : No. 07-6292 Civil Term SARAH E. FLYNN-TRIPP and JAMES WALSH : ACTION IN CUSTODY Prior Judge: Edgar B. Bayley, P.J. COURT ORDER AND NOW, this (7 day of September 2008, upon consideration of the attached Custody Conciliation Report, it is ordered and directed that: 1. This Order is entered pursuant to a Custody Conciliation Conference. A Custody Hearing is hereby scheduled on the ? day of _WJW.Jq, 2008 at J'• yS am/pin in Courtroom number 2 in the Cumberland County Court of Common Pleas, Carlisle, PA 17013 at which time testimony will be taken. For purposes of this hearing, the Mother shall be deemed to be the moving party and shall proceed initially with testimony. Counsel for each party shall file with the Court and opposing counsel a Memorandum setting forth each party's position on custody, a list of witnesses who will be expected to testify at the hearing and a summary of the anticipated testimony of each witness. These Memoranda shall be filed at least five days prior to the hearing date. 2. Legal Custody: The Plaintiffs Doris Mae Holt-Kennedy and Lee E. Kennedy shall have primary legal custody of Luke James Flynn, born 10/28/2001. The Plaintiffs shall have the right to make all major non-emergency decisions affecting the Child's general well-being including, but not limited to, all decisions regarding his health, education and religion. Pursuant to the terms of 23 Pa.C.S. §5309, the Mother shall be entitled to all records and information pertaining to the Child including, but not limited to, medical, dental, religious or school records, the residence address of the Child and of the Plaintiffs. To the extent one party has possession of any such records or information, that party shall be required to share the same, or copies thereof, with the other party within such reasonable time as to make the records and information of reasonable use to the other party. Mother specifically has authorization to have information regarding Luke's school and teachers and is authorized to be in contact with the school regarding Luke's progress and reports. 3. Physical Custody: Pending the hearing and/or further Order of Court, Plaintiffs Doris M. Holt-Kennedy and Lee E. Kennedy shall exercise primary legal and physical custody of the Child, Luke J. Flynn, born October 28, 2001. The 1 1. Mother, Sarah E. Flynn-Tripp, shall have visitation with the Child when Mother comes from Las Vegas for the scheduled Court hearing upon ten days' prior notice. Should the parties not be able to come to an agreement about duration and location regarding this visit, counsel shall contact the assigned conciliator to make a determination. 4. No party to this action shall remove Luke J. Flynn from the Commonwealth until further Order of Court. 5. Telephone contact between the Child and the Mother shall be liberal as agreed upon between the parties. In the absence of agreement, Mother may contact the Child every Wednesday and Saturday between 8:00 pm and 8:30 pm. 6. Neither party may say or do anything nor permit a third party to do or say anything that may estrange the Child from the other party, or injure the opinion of the Child as to the other party, or may hamper the free and natural development of the Child's love or affection for the other party. 7. In the event of a medical emergency, the custodial party shall notify the other party as soon as possible after the emergency is handled. 8. The parties may modify this Order by mutual agreement in writing. In the absence of mutual consent, the terms of this Order shall control. re Cc: Atarcus ley Griffie, Esqui McKnight, Esquire -o' John J. Mangan, Esquire 12opOes r'126LL 4/r0/08 tvyl ?? ??? ?- - m?, = .? w ?.-- _? ?:. s? - ? tL ? ? _' 4,, -' ??? C: ? r--? 4 DORIS MAE HOLT-KENNEDY and LEE E. KENNEDY V. SARAH E. FLYNN-TRIPP and JAMES WALSH Prior Judge: Edgar B. Bayley, P.J. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : No. 07-6292 Civil Term : ACTION IN CUSTODY CONCILIATION CONFERENCE SUMMARY REPORT IN ACCORDANCE WITH THE CUMBERLAND COUNTY CIVIL RULE OF PROCEDURE 1915.3-8(B), the undersigned Custody Conciliator submits the following report: The pertinent information pertaining to the child who is the subject of this litigation is as follows: Name Date of Birth Currently in the Custody of Luke James Flynn 10/28/ 2001 Maternal grandmother and step-grandfather 2. A Conciliation Conference update was held on December 07, 2007, an Order issued December 14, 2007, a hearing took place February 28, 2008, an Order was issued March 20, 2008, an emergency petition was filed and an Order was issued July 21, 2008 and then another conciliation conference was held September 2, 2008 with the following individuals participating: The maternal grandmother, Doris Mae Holt-Kennedy and step-grandfather, Lee E. Kennedy, with their counsel, Bradley Griffie, Esquire The Mother, Sarah E. Flynn-Tripp, with her counsel, Marcus McNight, Esquire The Father, James Walsh, did not appear. 3. The Honorable Edgar B. Bayley, P.J. previously entered an Order of Court dated November 1, 2007 whereby "Plaintiffs/Petitioners shall exercise primary legal and physical custody of the child pending further Order of Court or agreement of the parties. Neither party shall remove the children [sic] from the Commonwealth until further Order of Court." 4. The Honorable Edgar B. Bayley, P.J. previously entered an Order of Court dated March 20, 2008 whereby Plaintiffs' petition for primary physical custody was denied and Mother/defendant was awarded custody of the subject Child at the completion of the Child's school year. 5. By Order of Court dated July 21, 2008, the instant matter was referred back to conciliation and the Child was Ordered to remain in the primary physical custody of Plaintiffs/grandmother and step-grandfather pending further Order of Court. 6. The maternal grandmother and step-grandfather's position on custody is as follows: In June of 2005, Mother executed a custody agreement whereby Mother voluntarily granted custody of Luke James Flynn to Doris Holt- Kennedy. The Child has solely been in the custody of Plaintiffs since 2005; as such, Plaintiffs' status of in loco-parentis is not in dispute. The Child allegedly has a very strong bond with his grandparents and Plaintiffs assert that the Child is quite fearful of being removed from Plaintiffs' custody. Plaintiffs assert that the Child is thriving in their care and wish the Child to remain in their custody. In October 2007, Defendant Mother and her husband arrived from California and demanded the Child return to California with them. Plaintiffs refused because it is their belief that the Child remaining with them would be in the Child's best interest. Plaintiffs allege that there were some significant inconsistencies with Defendant's testimony in regard to school enrollment, housing and employment during the court hearing in February 2008. Plaintiffs allege that Defendant Mother still is not able to adequately care for the subject Child and the Child continues to do well in Plaintiffs' care. Plaintiffs request that the Child remain in their primary care and periods of partial custody/visitation be awarded to Mother. 7. Mother's position is as follows: Mother requests that the Child return to her custody in Las Vegas and is willing to allow maternal grandparents time with the Child during the summer. Mother asserts that the transfer of custody via the agreement was intended to be temporary for the summer of 2005 and that maternal grandmother and step-grandfather are hindering Mother's ability to regain custody of the Child. Mother reports that she and her husband are gainfully employed and have the capability to properly raise the Child. Since the last court hearing in February 2008, Mother and her husband have moved to Las Vegas whereby both are gainfully employed and have adequate housing. Allegedly, Mother had been sent to Las Vegas for training for her job in California and took up a second job with a security firm. Allegedly said firm offered her a full time job and Mother decided move to Las Vegas and pursue said employment. Mother requests that the subject Child be transitioned to her primary care and custody at mid-year. Mother requests information and the ability to have input/information from the Child's school district and teachers. Mother also requests adequate liberal telephone access to the Child. 8. The Conciliator recommends an Order in the form as attached scheduling a Hearing and entering an Order of Court granting Plaintiffs primary physical custody of the Child subject to Mother's visitation while in the Commonwealth. It is the Conciliator's belief that this would be in the Child's best interest. It is expected that the Hearing will require one day. 9. The proposed recommended Order may contain a requirement that the parties file a pre-trial memorandum with the Judge to whom the matter has been assigned. Date: Jo n Esquire rto Cd Conciliator DORIS MAE HOLT-KENNEDY AND LEE E. KENNEDY, PLAINTIFFS V. SARAH E. FLYNN TRIPP AND JAMES WALSH, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : 07-6292 CIVIL TERM ORDER OF COURT AND NOW, this -0-7--- day of September, 2008, the time of the hearing currently scheduled for 8:45 a.m. is changed to 1:30 p.m., on November 5, 2008. By the Court, /Bradley L. Griffie, Esquire F 9r Plaintiffs Marcus McKnight, Esquire For Sarah E. Flynn Tripp sal P Edgar B. Ba_ c j `? .. ;1` l '+ 0- t G W+ e DORIS MAE HOLT-KENNEDY AND LEE E. KENNEDY, PLAINTIFFS V. SARAH E. FLYNN TRIPP AND JAMES WALSH, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 07-6292 CIVIL TERM ORDER OF COURT AND NOW, this P day of November, 2008, following a rehearing on the within custody case, IT IS ORDERED: (1) The custody order entered on March 20, 2008, is vacated. (2) A further hearing will be conducted in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania at 8:45 a.m., Thursday, June 18, 2009, for the purposes of taking testimony as to the whether the mother has shown a pattern of stability that warrants the return to her of her son Luke. (3) In the interim, temporary physical custody and temporary legal custody of Luke James Flynn, born October 28, 2001, shall be with his maternal grandmother Doris Mae Holt-Kennedy. (4) In this interim period, if the mother visits this area she shall have a right to take Luke during periods that he is not in school, but not overnight, between the hours of 10:00 a.m. and 7:00 p.m., during which she cannot go beyond Cumberland, Dauphin, Franklin or Adams Counties. cwt ?, It) LU C) CC LI'l '1TM Q CII) Q tv CJ Bradley L. Griffie, Esquire For Plaintiffs jl. /9-Or Marcus McKnight, Esquire For Sarah E. Flynn Tripp sal DORIS MAE HOLT-KENNEDY AND IN THE COURT OF COMMON PLEAS OF LEE E. KENNEDY, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. SARAH E. FLYNN TRIPP AND JAMES WALSH, DEFENDANTS 07-6292 CIVIL TERM ORDER OF COURT AND NOW, this day of June, 2009, upon the motion of Sarah Tripp for a continuance, the motion IS GRANTED. The hearing scheduled for June 18, 2009, IS CANCELLED. Rather than reschedule a hearing at this point, Tripp shall, when she knows she will be able to attend a hearing within a sixty day period, request the setting of another hearing. Byffie-to__urt, ,- Bradley L. Griffie, Esquire For Plaintiffs 'Marcus McKnight, Esquire For Sarah E. Flynn Tripp :sal I yes l l i? 4./fzlo9 Edgar B. Bayley, RLEL-- ; ''CE OF THE i ,:,771 CRY 2604 JUN 12 Ali S: 2 8 ,Y ? r CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: Superior Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: Doris Mae Holt-Kennedy and Lee E. Kennedy vs. Sarah E. Flynn-Tripp and James Walsh 2007-6292 Civil 723 MDA 2008 • The documents comprising the record have been numbered from No.l to 287, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is OS/2~/2008 . Cu is R. ono ary Regina Lebo An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Date Signature & Title RBCSJved~n S~Pedor~ ~i't MAY 2 7 2008 M/pp~E