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Home My WebLink About09-1390JEANNE B. COSTOPOULOS, ESQUIRE Attorney I.D. No. 68735 5000 Ritter Road, Suite 202 Mechanicsburg, PA 17055 Telephone No. (717) 221-0900 ATTORNEY FOR PLAINTIFF KRISTY L. SMYSER, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY PENNSYLVANIA V. BRITTANI K. McDADE and JEFFREY I. SPENCER, Defendants NO. 0 9 - /3 94 CIVIL ACTION -LAW CUSTODY COMPLAINT IN CUSTODY AND NOW, comes Plaintiff, Kristy L. Smyser, by and through her attorney, Jeanne B. Costopoulos, Esquire, and aver the following in support of this Complaint in Custody: 1. Plaintiff, Kristy L. Smyser, is an adult individual currently residing at 309 South York Street, Mechanicsburg, Cumberland County, Pennsylvania, 17055. 2. Defendant, Brittani K. McDade, is an adult individual currently residing at 109 Andrew Court, Carlisle, Cumberland County, Pennsylvania, 17013. 3. Defendant, Jeffrey I. Spencer, is an adult individual currently residing at 109 Andrew Court, Carlisle, Cumberland County, Pennsylvania, 17013. 4. There is one dependent child from the relationship of Defendants Brittani K. McDade and Jeffrey I. Spencer, namely Corina L. Spencer, born October 24, 2008, hereinafter referred to as the child. 5. Defendants are not married and the child was born out of wedlock. 6. The child is presently in the custody of Plaintiff, Kristy L. Smyser, who resides at 309 South York Street, Mechanicsburg, Cumberland County, Pennsylvania, 17055. 7. Since birth, the child has resided with the following individuals at the following addresses: Individuals Address Dates Defendants 109 Andrew Ct., Carlisle, PA birth to Sally Ritter (Jeffrey's maternal aunt) 1/9/09 Chris Ritter (Sally's husband) Plaintiff 309 S. York St., Mechanicsburg, PA 1/9/09 to David Stewart (Plaintiff's boyfriend) present Jayne Stewart (David's mother) Angel DeLacerna (David's mother's boyfriend) Dylan Brown (David's grandson - age 2) Olivia Carey (David's granddaughter - age 10 mos.) 8. The relationship of Kristy L. Smyser to the child is that of natural maternal grandmother. Plaintiff currently resides with her boyfriend and his parents and grandchildren as named above. The subject child also resides with Plaintiff. 9. The relationship of Defendant, Brittani K. McDade, to the child is that of natural mother. Britanni currently resides with Defendant Jeffrey I. Spencer and Jeffrey's aunt and uncle as named above. 10. The relationship of Defendant, Jeffrey I. Spencer, to the child is that of natural father. Jeffrey currently resides in his aunt and uncle's home with Defendant Brittani K. McDade. 11. Plaintiff has not participated as a party or a witness, or in any other capacity in other litigation concerning the custody of the child in this or any other Court. 12. Plaintiff has no information of a custody proceeding concerning the child pending in a court of this Commonwealth. 13. Plaintiff does not know of a person not a party to the proceedings who has physical custody of the child or claims to have custody or visitation rights with respect to the child. 14. The best interest and permanent welfare of the child will be served by granting Plaintiff primary physical and shared legal custody of the child for the following reasons: (a) Plaintiff has acted in loco parentis to the child since Defendant Brittani K. McDade signed guardianship to her on January 9, 2009. (b) Defendants are incapable of taking care of their own needs and are in no position to properly care for the needs of the child. (c) Defendants do not possess basic parenting skills and have most often ended their brief periods of visitation with the child by contacting Plaintiff to retrieve the child because they no longer had the patience or desire to deal with her. (d) Defendants neglected to inquire about the well-being of the child until Plaintiff filed an action for child support. Thereafter, Defendants announced that they wanted custody of the child. (e) Plaintiff is concerned about the physical and emotional well-being of the child while in the custody of Defendants. The child has often returned from visits from Defendants with respiratory problems and an odor of cat urine. The child is not properly bathed and the child and her belongings are literally covered with lint and cat hair. 15. Each parent whose parental rights to the child have not been terminated and the persons who have physical custody of the child have been named as parties to this action. WHEREFORE, Plaintiff, Kristy L. Smyser, respectfully requests this Honorable Court to grant her primary physical and shared legal custody of her granddaughter. Respectfully Submitted: By: JE NE B. COSTOPOULOS, E DIRE Attorney I.D. No. 68735 5000 Ritter Road, Suite 202 Mechanicsburg, PA 17055 Telephone No. (717) 221-0900 Attorneys for Plaintiff VERIFICATION I, Kristy L. Smyser, hereby verify that the statements made in the foregoing document are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unworn falsification to authorities. Date: - ? - Signatun 4 c il ? V ?. ' z 3 ( _ y KRISTY L. SMYSER • IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. 2009-1390 CIVIL ACTION LAW BRITTANI K. MCDADE AND JEFFREY I. SPENCER IN CUSTODY DEFENDANT ORDER OF COURT AND NOW, Tuesday, March 10, 2009 , 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 Thursday, April 16, 2009 at 8:30 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 j. Man an n Es q. Custody Conciliator The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilites Act of 1990. .For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. YOU SHOULD TAKE THIS PAPER TO YOUR ATTORNEY AT ONCE. IF YOU DO NOT HAVE AN ATTORNEY OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 kNncr, 90 .C W8 01 8VW 6001 Ya a/ r ja-o/c ?Q avp Jeffrey Spencer, : IN THE COURT OF COMMON PLEAS OF Brittani McDade, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. : CIVIL ACTION - LAW IN CUSTODY Kristy Smyser, Defendant : NO. 09- 1390 CIVIL TERM AFFIDAVIT OF SERVICE I, Megan Riesmeyer, hereby certify that I served a true and correct copy of the Petition for Special Relief and Custody Complaint, on Jeanne Costopoulos, Esquire, attorney for Kristy Smyser at 5000 Ritter Road, Suite 202, Mechanicsburg, PA 17055 on this 16'h day of March, 2009. Date: 1? G 4L? Megan Riesmeyer Supervising Clinic Attorney r- cs "" 1 _y ;i77 n Jeffrey Spencer, Brittani McDade, Plaintiffs V. Kristy Smyser, Defendant To The Prothonotary: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW IN CUSTODY : NO. 09- 1390 CIVIL TERM PRAECIPE TO WITHDRAW AFFIDAVIT Please withdraw the Affidavit of Service filed this day in the above captioned matter. Megan Riesmeyer Supervising Attorney Date: March 16, 2009 ?/ '•A '1„ '??{ ?7 i i ? t ry `? °L1 -'?-? 3 ,? ? ? _' ? .! .. ` ? e ? t ?ti. KRYSTY L. SMYSER, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v NO. 09-1390 CIVIL TERM ? BRITTANI K. McDADE and JEFFREY I. SPENCER, Defendants ******************************** JEFFREY SPENCER, IN THE COURT OF COMMON PLEAS OF BRITTANI McDADE, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v CIVIL ACTION - LAW KRISTY SMYSER, NO. 09-1601 CIVIL TERM Defendant IN CUSTODY IN RE: TEMPORARY ORDER ORDER OF COURT AND NOW, this 2nd day of April, 2009, upon consideration of the Petition for Special Relief Seeking Emergency Custody Pursuant to Pa. R.C.P. 1915.13 filed by Jeffrey Spencer and Brittani McDade at No. 09-1601 Civil Term with respect to their child, Corina Lynn Spencer (d.o.b. October 24, 2008), and following a hearing held on April 2, 2009, it is ordered and directed as follows, pending the custody conciliation conference scheduled for April 16, 2009, with Custody Conciliator John Mangan, and further order of Court: 1. Legal custody of the child shall be shared by the parties, the child's parents, Jeffrey Spencer and Brittani McDade being regarded as one party and the child's grandmother, Kristy Smyser, being regarded as the Aftm other party; 2. Physical custody of the child shall be shared by the parties for consecutive 2-day periods, with the exchanges taking place at the residence of Jeffrey Spencer and Brittani McDade, the exchanges occurring at 7:00 p.m., and Kristy Smyser being responsible for transportation; 3. The first period of physical custody of Jeffrey Spencer and Brittani McDade shall be on Friday, April 3, 2009, at 7:00 p.m.; 4. Jeffrey Spencer and Brittani McDade shall immediately enroll in parenting classes; and 5. Nothing herein is intended to preclude the parties from deviating from the terms of this order by mutual agreement in writing. /Jeanne B. Costopoulos, Esquire 5000 Ritter Road Suite 202 Mechanicsburg, PA 17055 For Kristy Smyser ? Krystal MacIntyre, Certified Legal Intern Ann MacDonald-Fox, Esquire Family Law Clinic 45 North Pitt Street Carlisle, PA 17013-2899 For Jeffrey Spencer and Brittani McDade O-Or Qs a/01 ?/=n :mae By the Court, ta. Cmr ,? ? j ,r, r. 3 r t ?- CL N U KRYSTY L. SMYSER, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v NO. 09-1390 CIVIL TERM BRITTANI K. McDADE and JEFFREY I. SPENCER, Defendants ******************************** JEFFREY SPENCER, IN THE COURT OF COMMON PLEAS OF BRITTANI McDADE, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v CIVIL ACTION - LAW KRYSTY SMYSER, NO. 09-1601 CIVIL TERM Defendant IN CUSTODY IN RE: CASES CONSOLIDATED ORDER OF COURT AND NOW, this 2nd day of April, 2009, pursuant to an agreement of counsel in open court, the cases at No. 09-1601 Civil Term and 09-1590 Civil Term are hereby consolidated under the first docket number, 09-1390 Civil Term, and the custody complaint at No. 09-1601 Civil Term is hereby referred to the custody conciliation process for a conference already scheduled at No. 09-1390 Civil Term on April 16, 2009, before Custody Conciliator John Mangan, Esquire. Counsel are requested to contact Conciliator Mangan to advise of this consolidation. By the Court, f ?Jeanne B. Costopoulos, Esquire 5000 Ritter Road Suite 202 Mechanicsburg, PA 17055 For Kristy Smyser - Krystal MacIntyre, Certified Legal Intern Ann MacDonald-Fox, Esquire Family Law Clinic 45 North Pitt Street Carlisle, PA 17013-2899 For Jeffrey Spencer and Brittani McDade :mae No? `r0l) R ED-IM9M OF THE PPMONOW 2009 APR -8 AM 10. 08 APR 21200 O v? KRISTY L. SMYSER : IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. No. 09-1390 Civil Term BRITTANI K. McDADE and JEFFREY I. SPENCER Defendants : ACTION IN CUSTODY JEFFREY SPENCER AND : IN THE COURT OF COMMON PLEAS BRITTANI McDADE : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. No. 09-1601 Civil Term KRISTY SMYSER Defendant : ACTION IN CUSTODY Prior Judge: J. Wesley Oler, Jr COURT ORDER AND NOW, this ? day of April 2009, 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 b-&, day of 009 at / 3D Qsro in Courtroom number _ / in the Cumbe and County Court of Common Pleas, Carlisle, PA 17013 at which time testimony will be taken in regard to the physical custody for the subject Children. For purposes of this hearing, the Mother/Father shall be deemed to be the moving party and shall proceed initially with testimony. Counsel for each party shall file with the Court and opposing counsel a Memorandum setting forth each party's position on custody, a list of witnesses who will be expected to testify at the hearing and a summary of the anticipated testimony of each witness. These Memoranda shall be filed at least five days prior to the hearing date. 2. Legal custody: The Mother, Brittani McDade, and the Father, Jeffrey Spencer, being regarded as one party, and the Maternal grandmother Kristy Smyser, being regarded as the other party shall have shared legal custody of Corina Lynn Spencer, born 10/24/2008. The parties shall have an equal right to make all major non-emergency decisions affecting the Child's general well-being including, but not limited to, all decisions regarding her health, education and religion. Pursuant to the terms of 23 Pa.C.S. §5309, each parent shall be entitled to all records and information pertaining to the Child including, but not limited to, medical, dental, religious or school records, the residence address of the Child and of the other party. To the extent one party has possession of any such records or information, that parent shall be required to share the same, or copies thereof, with the other cAJ .:. ? - ^ - : r Ll- 0 rn m' Ga parent within such reasonable time as to make the records and information of reasonable use to the other parry. 3. Physical Custody: The Mother/Father shall share physical custody of the Child with Maternal Grandmother as follows: a. Commencing 04/20/09, Maternal Grandmother shall have physical custody of the Child Monday at 6:00 pm until Wednesday 6:00 pm. Mother and Father shall then have custody from Wednesday 6:00 pm until Friday 6:00 pm. Maternal Grandmother shall then have physical custody from Friday 6:00 pm until Monday 6:00 pm. b. In week two, Mother and Father shall have physical custody Monday 6:00pm until Wednesday 6:00 pm. Maternal Grandmother shall then have custody from Wednesday 6:00 pm until Friday 6:00 pm. Mother and Father shall then have custody from Friday 6:00 pm until Monday 6:00 pm. C. This schedule shall continue on pursuant to a two week repeating basis until further Order of Court. d. Maternal Grandmother has agreed, and shall, provide the transportation for the exchanges, with the understanding that paternal great aunt has agreed to assist whenever possible 4. Parentin classes: Mother and Father are directed to participate and successfully complete parenting classes to better understand how to raise an infant. 5. Holidays: The parties shall arrange a holiday schedule as mutually agreed upon. 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. To the extent possible, both parties shall not allow third parties to disparage the other parent in the presence of the Child. 7. In the event of a medical emergency, the custodial party shall notify the other parties as soon as possible after the emergency is handled. 8. During any periods of custody or visitation, the parties shall not possess or use controlled substances or consume/be under the influence of alcoholic beverages to the point of intoxication. The parties shall likewise assure, to the extent possible, that other household members and/or house guests comply with this provision. 9. In the event that both parties determine that the scheduled Court hearing is not necessary or warranted and that a conciliation conference is more beneficial, the parties' counsel may contact directly the assigned conciliator to schedule a status conference and cancel the scheduled hearing. 10. The parties may modify this Order by mutual agreement in writing. In the absence of mutual consent, the terms of this Order shall control. BY THE COURT, gistibution: Ee 6 Costopolous, Esq. amil y Law Clinic, Krystal MacIntyre, Ann MacDonald-Fox, Esq. J. Mangan, Esq. y?av,09 KRISTY L. SMYSER Plaintiff V. BRITTANI K. McDADE and JEFFREY I. SPENCER Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : No. 09-1390 Civil Term : ACTION IN CUSTODY JEFFREY SPENCER AND BRITTANI McDADE IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. KRISTY SMYSER Defendant Prior Judge: J. Wesley Oler, Jr., J. : No. 09-1601 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 Corina L. Spencer 10/24/2008 Shared Maternal Grandmother and Mother/Father 2. A Conciliation Conference was held on April 16, 2009 with the following individuals participating: The Mother and Father, Jeffrey Spencer and Brittani McDade, with their counsel, The Family Law Clinic, Anne MacDonald-Fox, Esq. The Maternal Grandmother, Kristy Smyser, with her counsel, Jeanne Costopolous, Esq. 3. The two custody docket numbers have been consolidated under docket number 09-1390 pursuant to Order of Court dated April 2, 2009. Also on April 02, 2009, a hearing was held before the Honorable Judge Oler prompted by a Petition for Special Relief and this Court Ordered a shared physical custody arrangement on a two days off and two days on between maternal grandmother and Mother/Father. 4. Maternal Grandmother's position on custody is as follows: Mother and Father are currently eighteen (18) years old. Both Mother and Father did not graduate from high school and do not have their GEDS. Mother and Father are not currently employed and rely on family and friends for assistance to make their way day to day. On January 09, 2009, Mother and Father signed some sort of custody arrangement whereby maternal grandmother took custody of the Child. Neither Mother not Father have a driving license. Maternal grandmother indicates that Father and Mother have gone extended periods of time without seeing the subject Child. Maternal grandmother appears to have a relatively good relationship with the Mother. However, it is very apparent that Maternal Grandmother and Father have a very distant/strained relationship. Maternal grandmother is concerned about Father and Mother's ability to care for the Child. Maternal Grandmother has concerns about Father's/Mother's immature attitude towards caring for an infant. Maternal grandmother also has concerns regarding Father's temper and anger issues. Maternal grandmother is fine with engaging with some sort of "therapeutic family counseling" but Father adamantly refuses to do so. Maternal grandmother asserts that Corina's best interests would be served by having primary/shared physical custody with her. 5. Mother's/Father's position on custody is as follows: Mother and Father seek primary custody of Corina. They assert that they are the parents of the Child and that they do have adequate resources to care for the Child. Mother and Father acknowledge that Corina is well cared for with Maternal grandmother but desire to have primary physical custody of Corina with the understanding that Maternal grandmother would have "liberal custodial time" with the Child on an informal basis. Father indicates that he is in the process of getting a driving license and also his GED as well as looking for employment. Mother and Father were not necessarily opposed to a shared physical custodial arrangement until their counsel intervened and advised them that this shared arrangement is not in their best interests, as opposed to what is in the Child's best interest. The undersigned attempted to have an agreement whereby a shared physical custody arrangement was put into place, Mother and Father engaged in parenting classes, Mother/Father pursued their GEDs and employment and to re-convene in three months. However, Mother and Father's counsel disagreed to this situation. Mother and Father's counsel demanded a hearing in regard to this matter. 6. The Conciliator recommends an Order in the form as attached scheduling a Hearing and entering an Order of Court regarding custody as outlined. 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 half 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: V r,167 Jo J. g , Esquire Cu tody Conciliator `~ KRISTY L. SMYSER, Plaintiff/Respondent v. JEFFREY SPENCER BRITTANI MCDADE Defendant/Petitioners JEFFREY SPENCER, BRITTANI MCDADE Plaintiffs/Petitioners v. KRISTY SMYSER, Defendant/Respondent AUG 052009G / IN THE COURT OF COMMON PLEAS OF , CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW IN CUSTODY NO. 09-1390 CIVIL TERM IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW IN CUSTODY NO. 09- 1601 CIVIL TERM ORDER OF COURT AND NOW, this day of , 2009, upon the Petition to Vacate Order and Dismiss Action, it is hereby ordered and directed as follows: 1. Petitioners' Complaint in Custody filed March 13, 2009 is dismissed without prejudice. 2. The Order of Court entered Apri124, 2009, is hereby vacated. -~ J. By the Court, n~ ,o rl"1> l.~''~: '!d, t :~'!4~ ., . '~^t _ ire 81?~Gg ~ ~ ~S ,~~ t ~~ ~~ ~~ ~ . ~ ~1 ~~<< ~~ Y