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HomeMy WebLinkAbout09-3441Paul J. Esposito, Esquire I.D. #25454 GOLDBERG KATZMAN, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161; (717) 234-6808 (facsimile) Counsel for Plaintiff JAMES A. SMITH, IV, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. Civil Term TAMMY HERR, CIVIL ACTION - LAW Defendant IN CUSTODY COMPLAINT FOR CUSTODY 1. Plaintiff is JAMES A. SMITH, IV, who currently resides at 131 E. Locust Street, Mechanicsburg, Cumberland County, Pennsylvania 17055. 2. Defendant is TAMMY HERR, who currently resides at an unknown location in Mechanicsburg, Cumberland County, Pennsylvania 17055. 3. Plaintiff seeks shared legal and equal shared physical custody of: Name: Alanah Raye Smith; DOB: 9/3/2007 Present Residence: Unknown location in Mechanicsburg, Cumberland County, Pennsylvania The child was born out of wedlock. 4. The Child resides with the Defendant herein at an unknown location in Mechanicsburg, Cumberland County, Pennsylvania. 5. Since birth, the Child has resided at the following addresses with the individuals listed: Birth to July 2008 440 S. York Street, Mechanicsburg, Cumberland County, Pennsylvania with Plaintiff, Defendant and stepbrother, James A. Smith, V July 2008 to February 26, 2009 131 E. Locust Street, Mechanicsburg, Cumberland County, Pennsylvania with Plaintiff, Defendant and stepbrother, James A. Smith, V February 26, 2009 to April 2009 41 Beech Cliff Drive, Mechanicsburg, Cumberland County, Pennsylvania with Defendant, maternal grandmother, Linda Herr and maternal grandfather, Frank Herr April 2009 to Present Mechanicsburg, Cumberland County, Pennsylvania with Defendant and her boyfriend 6. The Father of the Child is James A. Smith, IV, Plaintiff herein, who currently resides at 131 E. Locust Street, Mechanicsburg, Cumberland County, Pennsylvania. 7. The Mother of the Child is Tammy Herr, Defendant herein, who currently resides at an unknown location in Mechanicsburg, Cumberland County, Pennsylvania. 8. The relationship of Plaintiff to the Child is that of Father. Plaintiff currently resides with his girlfriend, Taryn Weaver, and his son, James A. Smith V, who resides with Plaintiff one-half of the time pursuant to an Order of Court. 9. The relationship of Defendant to the Child is that of Mother. Defendant currently resides with her boyfriend and the Child. 10. Plaintiff has no information of a custody proceeding concerning the Child pending in a court of this Commonwealth. 2 11. Plaintiff does not know of any person who is not a party to these proceedings who has physical custody of the Child or claims to have custody or visitation rights with respect to the Child. 12. Plaintiff has not participated as a party, witness or in another capacity or in other litigation concerning the custody of the Child in this or another Court. 13. 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 a party to this action. 14. The best interests and permanent welfare of the Child will be served by the relief requested. WHEREFORE, Plaintiff respectfully requests that this Honorable Court grant him shared legal and equal shared physical custody of the parties' Child, ALANAH RAYE SMITH, on a basis so that his two (2) children are together as frequently as possible. Respectfully submitted, GOL ERG TZMAN, P.C. Paul J. vposjg Attorney I.D. #25454 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Date: , 2009 Attorney for Plaintiff VERIFICATION I verify that the statements contained in the foregoing COMPLAINT FOR CUSTODY are true and correct to the best of my knowledge, information and belief. I understand that false statements contained herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. Date: S ?S 6 y S S. SMITH, IV :'T 71i- I ZUB 26 I'll nu $1105,50 4>0 Any Cj, -vgl5388 214as suo!o JAMES A. SMITH IV PLAINTIFF V. TAMMY HERR DEFENDANT . IN THE COURT OF COMMON PLEAS OF . CUMBERLAND COUNTY, PENNSYLVANIA 2009-3441 CIVIL ACTION LAW . IN CUSTODY ORDER OF COURT AND NOW, Tuesday, June 02, 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 Friday, July 10, 2009 at 1:00 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. 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/ ohn . Man n r. Es . Custody Conciliator The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilites Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. YOU SHOULD TAKE THIS PAPER TO YOUR 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 OF T' E r r ' ?tinti4 209 JUN --2 PH I P d ??a •os `71? sro.-?I ? G a 69 ?. .k. ? 7G? Paul J. Esposito, Esquire I.D. #25454 Goldberg Katzman, P.C. 320 Market Street, Strawberry Square Post Office Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161, (717) 234-6808 (facsimile) Attorneys for Plaintiff JAMES A. SMITH, IV, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 09-3441 Civil Term TAMMY HERR, : CIVIL ACTION - LAW Defendant : IN CUSTODY AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA SS: COUNTY OF DAUPHIN Personally appeared before me, a Notary Public, in and for said Commonwealth and County, PAUL J. ESPOSITO, ESQUIRE, who being duly sworn according to law deposes and says that on June 8, 2009, he sent a copy of Complaint for Custody by certified mail, return receipt, to Defendant, Tammy Herr, at 1100 Ridge Drive, Pennsylvania 17055, and the return receipt card signed by Tammy Herr is attached here and ma part hereof. PAUL J. E O O Sworn to and subs ibed before me AvyA. y of 2009. s , Notary Public My Commission Expires: 9/17/2010 COMMONWEALTH OF PENNSYLVANIA Notarial Seal Sally A. Marsh, Notary Public :0DMAIPCD0CSID0CS197938U City Of Harrisburg, Dauphin County My Commission Expires Sept. 17, 2010 Member, Pennsylvania Associa° w c,+ hlotades Ir 0' ml OFFI r%- Postage $ 0' IAL USE /I- r-07 Certified Fee C3 Retum Receipt Fee Postmark C3 (Endorsement Required) Here C3 Restricted Delivery Fee C3 (Endorsement Required) ru rU Total Postage & Fees $ ° al Tammy Herr c; 1100 Ridge Drive Mechanic Wrg, PA 17055 nmli? ¦ Complete Bar. 1, 2, and & Also complete item 4 If Fiestricled 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 mailpiecer or on the front If space permits. 1. Article Addressed to: Tammy Herr 1100 Ridge Drive Mechanicsburg, PA 17055 0 Agent (f,? *W M WW A I C. Date of E*Kwy is delivery addrtlse dHferentfrom Rem 1? O Yee if YEs, enter delivery address below: 0 No 3. Service IWO !Certified mom 0 Ewese Mali /r Registered 101FIetum Receipt for Merdtattdbe 13 insured Mail 0 C.O.D. 4. Restricted Delivery? (Extra Fee) 0 Yes 2. ArticiiN WW 7.007 0220 0002 9763 5996 (ItarreliriMtilrl etrrtndr area PS Form 1. febuery pC04 t7omaeik, pww tlrrrettrt tarzs>?-M 1T lit--?' 1 , ? ? t`4F ^,? .SHE, . -y; t, ?la 'e , ? ,?f::. .. .?I LAP. auc > > zoosG ~ JAMES A. SMITH IV, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA ~• No. 09-3441 CIVIL ACTION LAW TAMMY HERR, 1N CUSTODY Defendant : ORDER OF COURT AND NOW this l L ~ day of August 2009, upon consideration of the attached Custody Conciliation Report, it is Ordered and Directed as follows: 1. Legal Custody: The Father, James Smith IV, and the Mother, Tammy Herr, shall have shared legal custody of Alanah Raye Smith, born 09/03/2007. 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 parent. To the extent one parent has possession of any such records or information, that parent shall be required to share the same, or copies thereof, with the other parent within such reasonable time as to make the records and information of reasonable use to the other parent. 2. Physical Custody: Mother shall have primary physical custody of the Child subject to Father's physical custody on a repeating two week schedule as follows: a. In week one, Father shall have physical custody of Alanah Tuesday evening from 5:00 pm until 8:00 pm, Wednesday from 5:00 pm until Thursday morning 7:00 am, Thursday evening from 5:00 pm unti18:00 pm and Saturday morning from 8:30 am until Sunday 8:00 pm. b. In week two, Father shall have physical custody of Alanah Tuesday 5:00 pm until Wednesday morning 7:00 am, Wednesday evening from 5:00 pm until 8:00 pm and Thursday from 5:00 pm until Friday morning 7:00 am. c. The non-custodial parent shall pick up Alanah at agreed upon locations. d. Father shall have physical custody of the Child at such other times as the parties may mutually agree. Telephone calls: Both parties shall use common sense in scheduling telephone calls to talk to the Child. Both parties are hereby directed to refrain from preventing the parent who maybe calling from talking to the Child or preventing the Child from calling the other parent, provided that the phone calls are not excessively frequent nor too long in duration that they disrupt the Child's schedule. The non-custodial parent shall have liberal telephone contact with the Child on a reasonable basis. 4. Holidays: a. Christmas: 1. In the odd-numbered years, Mother shall have a period of partial physical custody with the Child on 12/24 at 11:00 am until 12/25 at 11:00 am; Father shall have a period of partial physical custody with the Child from 12/25 at 11:00 am until 12/26 at 11:00 am. 2. In the even-numbered years, Mother shall have a period of partial physical custody on 12/24 from 11:00 am until 8:00 pm; Father shall have physical custody of the Child from 12/24 at 8:00 pm until 12/25 at 2:30 pm; Mother shall have physical custody with the Child 12/25 at 2:30 pm until 12/26 at 11:00 am. b. Thanksgiving: 1. In the odd-numbered years, Mother shall have physical custody with the Child from Thanksgiving Day 8:00 am unti12:30 pm; Father shall have physical custody from Thanksgiving Day at 2:30 pm unti18:00 pm. 2. In the even-numbered years, Father shall have physical custody with the Child from Thanksgiving Day 8:00 am unti12:30 pm; Mother shall have physical custody from Thanksgiving Day at 2:30 pm until 8:00 pm. c. Easter: 1. In the odd-numbered years, Mother shall have physical custody with the Child Easter Sunday from 8:00 am unti12:30 pm; Father shall have physical custody with the Child Easter Sunday from 2:30 pm unti18:00 pm. 2. In the even-numbered years, Father shall have physical custody with the Child Easter Sunday from 8:00 am unti12:30 pm; Mother shall have physical custody with the Child Easter Sunday from 2:30 pm unti18:00 pm. d. Mother's Day and Father's Day: Each parent shall have physical custody on their respective Sunday holiday from 9:00 am until 8:00 pm. 5. Vacation: Until Alanah is of school age, each parent shall have two non-consecutive weeks of vacation with the Child per year. When Alanah is of school age, the parents shall have two non-consecutive weeks during the summer break. Summer break is defined as the first Friday evening following the last day of school and if Friday is the last day of school, then the following Friday, to two full weeks prior to the first day of school (unless mutually agreed by the parties, the parents shall refer to the Mechanicsburg Area School District calendar for guidance with respect to this provision).Such periods of vacation shall be exercised to include the custodial parent's weekend period of custody. The requesting parent shall give the other parent 30 days advance notice of the requested time and this vacation week shall supersede the regular physical custody schedule. In the event the parties schedule conflicting vacations, the party first providing written notice shall have the choice of vacation. Prior to departure, the parties will provide each other with information regarding the intended vacation destination and a telephone number at which they can be reached during their vacation. The parties may expand this vacation time by mutual agreement. For 2009, Mother has requested July 27 through August 3. 6. Priority: The holiday schedule shall take priority. The periods of partial physical custody for holidays, vacations, or other special days as forth herein shall be in addition to and take precedence over, but shall not alter the schedule or sequence of regular periods of partial physical custody for that parent as set forth herein. Holidays and other special days for custody shall take precedence over vacations. 7. Right of first refusal: Mother and Father agree that should either parent be unable to exercise a period of partial custody with the Child, that parent shall contact the other parent of such and offer the other parent the first opportunity to exercise that period of partial physical custody with the Child. 8. Transportation: Transportation shall be shared by the parties, with the parent who is to receive custody at the time of the exchange to provide for transportation from the residence of the other parent. At all times, the Child shall be secured in appropriate passenger restraints. No person transporting the Child shall consume alcoholic beverages prior to transporting the Child. No person transporting the Child shall be under the influence of any alcoholic beverages while transporting the Child. The Child shall be transported only by licensed drivers. 9. Late for exchange: In the event that either party is more than twenty minutes late for a scheduled custody visitation and/or custody exchange, in the absence of a telephone call or other communication from the parent picking up the Child, the other party may assume that the parent who is late has chosen not to exercise that period of custody. The period shall be forfeited, and the other party will be free to make other plans with the Child. 10. Extracurricular activities: Each party shall provide to the other at least forty-eight hours advance notice of school or other activities, whenever possible. Both parties shall agree to honor and participate in the activities that the Child wishes to engage in. During the times that the parents have custody of the Child, they will make certain that the Child attends any extracurricular activities. The parties agree that they will be supportive of the activities and will transport the Child to and from such activities and the preparations and practices for the activities that are scheduled, in such time so that the Child is able to participate in those events. Neither parent, however, shall sign up the Child for any activity unless the Child definitely desires to attend that activity. Participation in activities which take place during the school year is contingent upon the Child maintaining passing grades in school. Neither parent shall sign the Child up for activities that fall on the other parent's period of custody, without the consent of the other parent, which consent shall not be unreasonably withheld. If the Child is involved in an activity which occurs during both parents' periods of custody, both parents shall cooperate in providing transportation of the Child to the activity. However, the custodial parent shall not be required to take the Child to that activity if the custodial parent and the Child are out of town during that activity, for a previously scheduled vacation. In the event that the custodial parentis unable to deliver the Child to the particular activity, the parent who has custody of the Child at that time shall notify the non-custodial parent, who shall be entitled to pick up and deliver the Child to the designated activity. The custodial parent shall make certain that the Child is ready for pickup in time sufficient to enable the Child to timely attend the activity. Should the custodial parent elect not to take the Child to a defined activity period for two times, then the non-custodial parent shall have the right to assume that he or she will be responsible for transporting the Child to that activity until appropriate transportation is provided. 11. Financial care of the Child: In the event that a significant matter arises with respect to the medical care, education, or financial care of the Child, such as a change in occupation, health insurance, education expenses, or residence of a party, those matters shall be discussed with the other parent before any change is made by either parent. 12. Mutual consultation: Each party shall confer with the other on all matters of importance relating to the Child's health, maintenance, and education with a view towards obtaining and following a harmonious policy in the Child's education and social adjustments. Each party agrees to keep the other informed of his or her residence and telephone number to facilitate communication concerning the welfare of the Child and visitation. Each party agrees to supply the name, address and phone numbers of any persons in whose care the Child will be for a period in excess of 72 hours, and for each person or entity which may provide daycare for the Child. 13. Illness of Child: Emergency decisions regarding the Child shall be made by the parent then having custody. However, in the event of any emergency or serious illness of the Child at any time, any party then having custody of the Child shall immediately communicate with the other party by telephone or any other means practical, informing the other party of the nature of the illness or emergency, so the other parent can become involved in the decision making process as soon as practical. The term "serious illness" as used herein shall mean any disability which confines the Child to bed for a period in excess of 72 hours and which places the Child under the direction of a licensed physician. 14. Welfare of the Child to be considered: The welfare and convenience of the Child shall be the prime consideration of the parties in any application of the provisions of this Order. Both parents are directed to listen carefully and consider the wishes of the Child in addressing the custodial schedule, any changes to the schedule, and any other parenting issues. 15. Special provisions: a. Mother and Father agree that the childcare provider is Joan Homivich. Moreover, Mother and Father agree that the childcare provider shall continue to be Joan Homivich until the Child is four years of age and ready to attend pre-school. At that time, the parents will review the childcare provider. b. Mother and Father agree that neither party may take the Child out of the continental United States unless mutually agreed in writing by the parties prior to such travel. c. Mother and Father agree that the Child shall not be removed from the state of Pennsylvania without 48 hours notice given to the other party and without the other party's consent. It is mutually agreed by the parties that their respective consents shall not be unreasonably withheld. 16. 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. 17. Smoking/drinking/illegal substances: Neither party shall smoke in a confined area when the Child is present and neither party shall permit another person to smoke in a confined area when the Child is present. Neither party shall consume alcoholic beverages to excess when in the presence of the Child and neither party shall permit another person to consume alcoholic beverages to excess when in the presence of the Child. Further, no party shall consume, possess, or be under the influence of an illegal substance when in the presence of the Child nor permit any other person to consume, possess, or be under the influence of an illegal substance in the Child's presence. 18. This Order is entered pursuant to a Custody Conciliation Conference. The parties may modify the provisions of this Order by mutual consent. In the absence of mutual consent, the terms of this Order shall control. Distribution: ~-leather Reynosa, Esq., 129 East Market Street, York, PA 17401 ,/haul Esposito, Esq., 320 Market Street, P.O. Box 1268, Harrisburg, PA 17108 ,~ohn J. Mangan, Esquire V By the Court, JAMES A. SMITH IV, Plaintiff v. TAMMY HERB, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 09-3441 CIVIL ACTION LAW IN CUSTODY CUSTODY CONCILIATION SUMMARY REPORT IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL 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 Alanah Raye Smith 09/03/2007 Primary Mother 2. A Conciliation Conference was held with regard to this matter on July 10, 2009 with the following individuals in attendance: The Mother, Tammy Herr, with her counsel, Heather Reynosa, Esq. The Father, James Smith, with his counsel, Paul Esposito, Esq. 3. The parties agreed to the entry of an Order in the form as attached. ~l~d l Date John an, squire Custo C nciliator V-;;_~- - ~_J ly -_ 1 Vl, .•_ ;