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Home My WebLink About09-1601Jeffrey 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- )W l CIVIL TERM COMPLAINT FOR CUSTODY The plaintiffs, Jeffrey Spencer and Brittani McDade, by their attorneys, the Family Law Clinic, set forth the following cause of action in custody. 1. The plaintiffs are Jeffrey Spencer and Brittani McDade, residing together at 109 Andrew Court, Carlisle, Cumberland County, Pennsylvania 17015. 2. The defendant is Kristy Smyser, residing at 309 South York Street, Mechanicsburg, Cumberland County, Pennsylvania 17055. 3. Plaintiffs seek full physical and legal custody of. Name Present Residence Age Corina Lynn Spencer 309 South York Street 4 Mos Mechanicsburg, PA 17055 DOB: 10/24/08 The child was born out of wedlock. The child is presently in the custody of Kristy Smyser, who resides at 309 South York Street, Mechanicsburg PA 17055 because she refuses to return the child to Plaintiffs. During the past five years the child has resided with the following persons at the following addresses: Persons Address Dates Jeffrey Spencer and Brittani McDade 109 Andrew Court Carlisle PA 17015 10/24/08 -1/09/09 Sally and Christopher Ritter 109 Andrew Court Carlisle, PA 17015 10/24/08 -1/09/09 Kristy Smyser 309 S. York Street 1/09/09 - Present Mechanicsburg PA 17055 The mother of the child is Brittani McDade. She is single. The father of the child is Jeffrey Spencer. He is single. 4. The relationship of Plaintiffs to the child is that of mother and father. The Plaintiffs currently reside with the following person: Name Sally Ritter Relationship Aunt of Plaintiff Jeffrey Spencer 5. The relationship of Defendant to the child is that of maternal grandmother. The defendant currently resides with the following persons: Name David Stewart Chelsea Carrey Dillon Brown Olivia Carrey Jane Stewart Angel (Unknown Surname) Relationship Boyfriend Daughter of Boyfriend (David) Minor Son of Boyfriend's Daughter (Chelsea) Minor Daughter of Boyfriend's Daughter (Chelsea) Mother of Boyfriend (David) Boyfriend of Mother of Boyfriend (Jane) 6. Defendant has no legal right to custody of the child. 7. Plaintiffs are filing a Petition for Special Relief Seeking Emergency Custody contemporaneously with this Complaint for Custody. Plaintiffs have no information of a custody proceeding concerning the child pending in a court of this Commonwealth, or any other state. 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. 8. The best interest and permanent welfare of the child will be served by granting the relief requested because: a. Plaintiffs have been the child's primary caretaker for most of the child's life; b. Plaintiffs provide the child with a stable home and environment with adequate moral, emotional, and physical surroundings as required to meet the child's needs; Plaintiffs are willing to accept custody of the child. 9. Defendant has refused to return the child to her parents, thereby disrupting the parent- child relationships necessary for the child's successful emotional and physical development 10. Each parent whose parental rights to the child have not been terminated and the person who has physical custody to the child have been named as parties to this action. WHEREFORE, Plaintiffs requests the court to grant them legal custody and physical custody of the child. Respectfully submitted, Date:` icc? Krystal MacIntyre Certified Legal Inte C - ANNE DONALD-FO Supervising Attorneys THE FAMILY LAW CLINIC 45 North Pitt Street Carlisle, PA 17013 (717) 243-2968 Fax: (717) 243-3639 I verify that the statements made in this Complaint 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. &ea? NS Je y Spencer ri n w? Fr, w to „S. 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- CIVIL TERM PRAECIPE TO PROCEED IN FORMA PAUPERIS To the Prothonotary: Kindly allow Jeffery Spencer and Brittani McDade, Plaintiffs, to proceed in forma pauperis. The Family Law Clinic, attorneys for the parties proceeding in forma pauperis, certifies that we believe the parties are unable to pay the costs and that we are providing free legal service to the parties. Respectfully submitted, Date Karen Fernandez Certified Legal Intern ANNE MAFDONALD- Supervisin Attorneys FAMILY LAW CLINIC 45 North Pitt Street Carlisle, PA 17013 717-243-2968 717-243-3639 ,? C w ?n '' ? ? ??i _ C 'rj .. ?1 ?_:.._ ;c._t . .. ,_.? - ,., _ . ?: w' ? µ• "? ? "C Jeffrey Spencer , Brittani McDade, Plaintiffs/Petitioners V. Kristy Smyser, Defendant/ Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW IN CUSTODY No. 09- 6 CIVIL TERM PETITION FOR SPECIAL RELIEF SEEKING EMERGENCY CUSTODY PURSUANT TO PA R.C.P. 1915.13 AND NOW, this Q ? day of 2009, pursuant to Rule 1915.13 of the Pennsylvania Rules of Civil Procedure, come the petitioners, Jeffrey Spencer and Brittani McDade, by their attorneys, the Family Law Clinic, seeking emergency custody of their minor child, Corina Lynn Spencer, born October 24, 2008. In support of their Petition for Emergency Relief, Petitioners aver the following: 1. The petitioners are adult individuals who reside together at 109 Andrew Court Carlisle, PA 17015. 2. The respondent is Kristy Smyser, an adult individual who resides at 309 South York Street Mechanicsburg, PA 17055 . 3. Petitioner Jeffrey Spencer, is the biological father (hereinafter "Father") of the four-month-old minor child, Corina Lynn Spencer, born October 24, 2008 (hereinafter "Child") 4. Petitioner Brittani McDade is the biological mother (hereinafter "Mother") of. Child. 5. The respondent is the maternal grandmother of the child (hereinafter "Grandmother"). 6. The child was born out of wedlock. 7. Child has resided with Grandmother at 309 South York Street Mechanicsburg, PA 17055 since January 9, 2009 because Grandmother refuses to return Child to Mother and Father. 8. Child resided with Mother and Father at 109 Andrew Court Carlisle PA 17015 from birth until January 9, 2009. 9. Mother and Father were the primary caretakers of Child following her birth. 10. On Friday, January 9, 2009, Mother placed Child in the temporary care of Grandmother. 11. On Friday, January 9, 2009, Grandmother requested that Mother sign a document authorizing her to care for Child, and Mother did so. 12. Mother believes and therefore avers that the document she signed authorized Grandmother to obtain necessary medical care for Child while Child was in Grandmother's care, but Grandmother did not give Mother a copy of the document, so Mother is unsure of the precise language contained therein. 13. On or about January 16, 2009 and on several subsequent occasions, Mother and Father requested that Grandmother return the Child to them, and Grandmother refused to do so. 14. Grandmother has on multiple occasions requested that Mother come to Grandmother's residence to care for Child, but has refused to allow Child to leave the residence with Mother. 15. Grandmother has refused to allow Father to see Child at all. 16. On Monday, March 9, 2009, Grandmother refused to relinquish Child upon request by Mother, whereupon Mother called the police. The Mechanicsburg Borough Police Department responded but, absent a court order, refused to direct Grandmother to return Child to Mother and Father. 17. Grandmother lacks standing to obtain custody of Child, and has no legal right to keep Child from Mother and Father. 18. Mother and Father are filing a Complaint for Custody contemporaneously with this Petition for Special Relief. 19. Mother and Father believe and therefore aver that it is in the best interests of the minor child that Mother and Father be granted full legal and physical custodyof their child. WHEREFORE, the petitioners, Jeffrey Spencer and Brittani McDade, respectfully request that this Honorable Court enter an Order: 1) granting Petitioners full legal and physical custody of their child, Corina Lynn Spencer, (2) directing Respondent to return the Child immediately to Petitioners, (3) directing the Cumberland County Sheriff's Office to provide any necessary assistance to ensure the immediate return of the child to Petitioners, and 4) scheduling this matter for hearing or conciliation if the Court so deems necessary. Respectfully submitted, Dat Krystal MacIntyre Certified Legal Inte E ONALD-FOX ROBERT E. RAINS THOMAS M. PLACE MEGAN RIESMEYER Supervising Attorneys FAMILY LAW CLINIC 45 North Pitt Street Carlisle, PA 17013-2899 (717) 243-2968 Fax: (717) 243-3639 VERIFICATION I verify that the statements made in the foregoing Petition for Special Relief are true and correct, to the best of my knowledge, information and belief. I understand making any false statement would subject me to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. Date: 3 - l3 - d? 2W°j 4J :It ,QmLaAl Jeeff?rey Spencer, Petitioner cDad , Petitioner C'? ? ?? ry t ? ? --n e --?' , f ? y `;. •y, "r3 `mo r'v w ,? ? G:3 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- 1601 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' day of March, 2009. Date: Megan Riesmeyer Supervising Clinic Attorney cn '., JEFFREY SPENCER, IN THE COURT OF COMMON PLEAS OF BRITTANI McDADE, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. CIVIL ACTION - LAW KRISTY SMYSER, Defendant NO. 09-1601 CIVIL TERM IN RE: PETITION FOR SPECIAL RELIEF SEEKING EMERGENCY CUSTODY PURSUANT TO PA. R.C.P. 1915.13 ORDER OF COURT AND NOW, this 16`h day of March, 2009, upon consideration of the above- captioned petition, a hearing is scheduled for Thursday, April 2, 2009, at 11:00 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, Krystal MacIntyre Certified Legal Intern Anne MacDonald-Fox, Esq. Robert E. Rains, Esq. Thomas M. Place, Esq. Megan Riesmeyer, Esq. Supervising Attorneys Family Law Clinic 45 North Pitt Street Carlisle, PA 17013-2899 Attorneys for Plaintiffs Jeanne B. Costopoulos, Esq. 5000 Ritter Road Suite 202 Mechanicsburg, PA 17055 Attorney for Defendant J. ..Wesley Ol i-.C- 1,;.0 ? E S rn ? c L?? 3?l-lZ?v? rc V4 SC?Nad C 0 --ZI WJ L i 8VN 6902 JEFFREY SPENCER, BRITTANI MCDADE IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. 2009-1601 CIVIL ACTION LAW KRISTY SMYSER IN CUSTODY DEFENDANT ORDER OF COURT AND NOW, Tuesday, March 17, 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. Mangan, r., 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 Cl31 b JEANA B. COSTOPOULOS, ESQUIRE Attorney I.D. No. 68735 5000 Ritter Road, Suite 202 Mechanicsburg, PA 17055 Telephone No. (717) 221-0900 ATTORNEY FOR DEFENDANT JEFFREY SPENCER, BRITTANI McDADE, Plaintiff V. KRISTY SMYSER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA NO. 09-1601 CIVIL ACTION - LAW CUSTODY DEFENDANT'S ANSWER TO PLAINTIFFS' PETITION FOR SPECIAL RELIEF AND NEW MATTER Defendant, Kristy Smyser, by and through her attorney, Jeann6 B. Costopoulos, Esquire, provides the following Answer to Plaintiffs' Petition for Special Relief: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted in part; denied in part. It is admitted the child has been residing with Grandmother at 309 South York Street, Mechanicsburg, PA, 17055, since January 9, 2009. It is also admitted that Grandmother refuses to return Child to Mother and Father. It is denied that the child has resided with Grandmother because she refused to return Child. By way of further answer, Mother called Grandmother on January 9, 2009 and asked her to take and keep Child because she "couldn't handle it anymore." She said the baby doesn't sleep and it's all too much for her and that no one helps her in the house with the baby. Grandmother went to Mother's house after work at around 5:30 p.m. and all of the Child's belongings were packed and ready at the front door. Grandmother loaded everything into her SUV. Mother handwrote a document giving guardianship to Grandmother. Said document is attached as Exhibit A. 8. Admitted. By way of further answer, Grandmother had the child most weekends and for a week between last Christmas and New Year's. 9. Grandmother is without sufficient knowledge to admit or deny the averments of paragraph 9. By way of further answer, Mother and Father were and continue to reside with Father's maternal aunt (Aunt hereinafter) and her husband in their townhome. It was Grandmother's understanding that Aunt often provided care for the child. In addition, Grandmother had the child most weekends. 10. Admitted in part; denied in part. It is admitted that Mother placed Child in Grandmother's care on January 9, 2009. It is denied that Mother intended the care to be short-term. By way of further answer, Mother told Grandmother she and Father needed to finish high school and then find jobs before they would ever be in a position to try to resume custody of Child. 11. Admitted. By way of further answer, Mother handwrote the document. She did not seek a copy of it until after Grandmother filed a support action against Mother and Father. 12. Grandmother is without sufficient information to comment on what Mother believes. However, Mother specifically wrote in the document "I, Brittani K. Mcdade give Kristy L. Smyser gardianship (sic) over my daughter Corina Lynn Spencer. effective of 1/9/09." Said document is attached as Exhibit A. 13. Denied. The first time Mother and Father ever requested Grandmother to return the child to them was March 2, 2009, the day she received notice that Grandmother had filed a support action against Mother and Father on February 25, 2009. 14. Denied. By way of further answer, on one occasion only, when the child was sick and unable to attend daycare, Grandmother on February 24, 2009 requested Mother to watch the baby the next day. Mother refused, stating that she "had things to do" (even though she had quit high school and was unemployed). By way of further answer, Child spent the January 17-19 at Aunt's with Mother. Child was ill from February 22, 2009 through March 1, 2009 with a stomach virus. Between January 20, 2009 and the time Child became ill, neither Mother nor Father requested to have the child or inquired as to her well-being. 1.5. Denied. Father has never once contacted Grandmother requesting to see Child or inquire as to her well-being. By way of further answer, Father's position throughout Mother's pregnancy and thereafter was that the baby should be "given up for adoption" but not to anyone in the family because it would create conflict. 16. Admitted. 17. Denied. By way of further answer, Grandmother has standing pursuant to 23 Pa.C.S.A. §5313(b). 18. Admitted. 19. No answer required. By way of further answer, Grandmother believes that it is in the best interests of the child to remain in her custody due to the child being at substantial risk with Mother and Father due to parental abuse, neglect, drug or alcohol abuse or mental illness. DEFENDANT'S NEW MATTER - PETITION FOR PHYSICAL AND LEGAL CUSTODY PURSUANT TO 23.P.A.C.S.A. _ 5313(b)(3) 20. Paragraphs 1 though 19 above are incorporated herein as though fully set forth. 21. Paragraphs 1 through 15 of Grandmother's Complaint in Custody filed on March 5, 2009 at docket no. 09-1390 in the Cumberland County Court of Common Pleas are incorporated herein as though fully set forth. 22. A custody conference is scheduled before John Mangan, the conciliator, on April 16, 2009, at 8:30 a.m. as a result of Grandmother's Complaint in Custody referenced in paragraph 21 above. 23. Pursuant to 23 Pa.C.S.A. §5313(b)(3), Grandmother has standing and is seeking physical and legal custody of child for the following reasons: (a) Grandmother is the natural maternal grandmother of the child; (b) It is not in the best interest of the child to be in the custody of either parent; (c) It is in the best interest of the child to be the custody of Grandmother who has demonstrated that she is capable of caring for her physical and emotional needs; (d) Grandmother has a genuine care and concern for the child; (e) Grandmother's relationship with the child began with the consent of Mother, who requested that she assume guardianship of the child and signed a document confirming same; (f) Grandmother assumed custody and deemed it necessary to assume responsibility for the child because the child was substantially at risk due to parental abuse, neglect, drug or alcohol abuse or mental illness. (g) Mother and Father have neglected the physical needs of the child, they both have a drug history, and both suffer from varying degrees of mental illness. WHEREFORE, Kristy Smyswer respectfully requests this Honorable Court to grant her primary physical and legal custody of her granddaughter, Corina Lynn Spencer. Respectfully Submitted: By. JE E B. COSTOPOULO , SQUIRE Attorney I.D. No. 68735 5000 Ritter Road, Suite 202 Mechanicsburg, PA 17055 Telephone No. (717) 221-0900 Attorney for Defendant 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 unsworn falsification to authorities. Date: 9 Signature CERTIFICATE OF SERVICE I, Jeanne B. Costopoulos, Esquire, hereby certify that this day I personally served a copy of the foregoing document upon the person, and in the manner, indicated below, which service satisfies the requirements of the PA Rules of Civil Procedure, by depositing a copy of the same with the United States Post Office at Mechanicsburg, Pennsylvania, through first class mail, prepaid, and addressed as follows: Date: Family Law Clinic Dickinson School of Law 45 N. Pitt Street Carlisle, PA 17013 By: JEANt B. COSTOPOUL , ESQUIRE Attorney I.D. No. 68735 5000 Ritter Road, Suite 202 Mechanicsburg, PA 17055 Telephone No. (717) 221-0900 ATTORNEY FOR DEFENDANT EXHIBIT A 11 . r' I?j fill f ? rci W _, J J f ?1N U ? I r? CJ ±: }G 7? V KRYSTY L. SMYSER, Plaintiff v IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA 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, 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, ? Jeanne B. Costopoulos, Esquire 5000 Ritter Road Suite 202 Mechanicsburg, PA 17055 For Kristy Smyser V 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 n _ ?-o ,e s ? la L iS?cl? FlFF'CE OF THE PFr-TH(M ARY 2009 APR --8 AM t J . Q8 PENNSYLVANIA 2 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 CI 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 t t 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 exchanger 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 CIO I CS' » t lC :mae By the Court, a t-- ,. p ?. ? ?.° ? ? ,' .y N ±:`? ? T y?.??..++ LL?? ? Q L, ?.._ / t i...? ?? !Y * Cl'? V