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HomeMy WebLinkAbout02-0210DOMENIC D'ERRICO and LISA D'ERRICO Plaintiffs PATRICIA O'BRIEN and VINCENT D'ERRICO, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : · No. : : CIVIL ACTION - LAW : IN CUSTODY : COMPLAINT FOR CUSTODY 1. The Plaintiffs are Domenic D'Errico and Lisa D'Errico, residing at 1080 Memory Lane, Mechanicsburg, Cumberland County, Pennsylvania 17050. 2. The Defendant, Vincent D'Erdco, is an adult individual whose last known address was 1080 Memory Lane, Mechanicsburg, Cumberland County, Pennsylvania 17050 where he resided with the Plaintiffs. Defendant D'Errico's current whereabouts are unknown to Plaintiffs, but it is believed he is residing somewhere in Rhode Island· 3. The Defendant, Patricia O'Brien, is an adult individual whose current address is 1080 Memory Lane, Mechanicsburg, Cumberland County, Pennsylvania 17050 where she resides with the Plaintiffs. 4. The Defendants are the natural parents of two minor children, namely Deborah Lynn O'Brien, date of birth April 21, 1995 and Alicia Marie D'Errico, date of birth December 9, 1997. 5. Plaintiff Domenic D'Errico is the natural father of Defendant D'Errico and the paternal grandparent of the subject minor children. Plaintiff, Lisa D'Errico, is the wife of Domenic D'Errico and paternal step-grandparent to the subject minor children. 6. Plaintiffs seek custody of the following children: Name Present Residence DOB Deborah Lynn O'Brien 1080 Memory Lane 4/21/95 Mechanicsburg, PA 17050 Alicia Made D'Erdco 1080 Memory Lane 12/9/97 Mechanicsburg, PA 17050 The children were born out of wedlock. The children are presently in the custody of Plaintiffs and Defendant, Patricia O'Brien, who reside at 1080 Memory Lane, Mechanicsburg, Cumberland County, Pennsylvania 17050. During the past five years, the children have resided with the following persons and at the following addresses: Dominic D'Errico Lisa D'Errico Patricia O'Brien 1080 Memory Lane Mechanicsburg, PA 17050 1/13/02 - Present Domenic D'Errico Lisa D'Errico Patricia O'Brien Vincent D'Erdco 1080 Memory Lane Mechanicsburg, PA 17050 11/25/01 - 1/13/02 Patricia O'Brien Vincent D'Errico 2 Other Adults 4 Other Children Rhode Island, exact address unknown 4/01 - 11/25/01 Any other addresses of the Defendants and their children and persons with whom they were living prior to April, 2001 are unknown to Plaintiffs. The mother of the children is Patricia O'Bden, currently residing at 1080 Memory Lane, Mechanicsburg, PA 17050. She is single. The father of the children is Vincent D'Errico, whose current residence is unknown. He last resided with Plaintiffs at 1080 Memory Lane, Mechanicsburg, PA 17050 from November 25, 2001 through January 13, 2002. He is single. 7. The relationship of Plaintiffs to the children are that of paternal grandparents. The Plaintiffs currently reside with the following persons: Name Patricia O'Brien Deborah L. O'Brien Alicia D'Errico Relationship Mother of their grandchildren Granddaughter Granddaughter 8. The relationship of Defendant, Patricia O'Brien to the children is that of mother. The Defendant currently resides with the following persons: Name Domenic D'Errico Lisa D'Errico Deborah L. O'Brien Alicia D'Errico Relationship Paternal grandparent of her children Paternal step-grandparent of her children Daughter Daughter 9. Plaintiffs have not participated as a party or witness, or in another capacity, in other litigation concerning the custody of the children in this or another court. Plaintiffs have no information of a custody proceeding concerning the children 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 children or claims to have custody or visitation rights with respect to the children. 10. The best interest and permanent welfare of the children will be served by granting the relief requested because: a. The Plaintiffs have a genuine care and concern for their grandchildren; b. The Plaintiffs and their grandchildren have a healthy relationship and formed a bond with each other, which relationship began with the consent of the Defendants; c. The children are doing well in the care of the Plaintiffs and their removal would significantly jeopardize their health and well- being; d. The Plaintiffs can provide clean, safe and stable housing for the children with sufficient room to comfortably meet their physical needs; e. The Defendants have failed to demonstrate that they can offer clean, safe and stable housing for the children; f. The Plaintiffs can offer a more stable physical and emotional environment than Defendants; g. The Plaintiffs have been the sole soume of financial support for the children since November of this year and Defendants have failed to demonstrate that they can adequately support their children; h. Plaintiffs would like to ensure that the children have health insurance and the children could be enrolled under their policies pursuant to an order of custody; i. The children are enrolled in the Plaintiff's school district and should not be withdrawn in the midst of a semester; j. Plaintiff, Lisa D'Errico, has been the primary caregiver of the children since their arrival on or about November 25, 2001; k. The welfare of the children would be endangered if they were placed into the primary care of either of the Defendants; and I. The children would be substantially at risk if they were not placed within the custody of Plaintiffs because of parental neglect. 11. Each parent whose parental rights to the children have not been terminated and the person who has physical custody of the children have been named as parties to this action. 12. Plaintiffs have standing to assert a claim for primary physical custody of their grandchildren pursuant to 23 Pa.C.S.A. §5313(b) and RMv. Baxter, 777 A..2d 446 (Pa. Supreme 2002). them. WHEREFORE, Plaintiff requests the court to grant custody of the children to Respectfully submitted, -Sandra L. Meilton, ~ TUCKER ARENSBERG & SWARTZ 111 North Front Street P.O. Box 889 Harrisburg, PA 17108-0889 (717) 234-4121 ATTORNEYS FOR PLAINTIFFS 46495.1 VERIFICATION I, the undersigned, DOMENIC D'ERRICO, acknowledge that the facts stated in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unswom falsification to authorities. Domenic D'Errico VERIFICATION I, the undersigned, LISA D'ERRICO, acknowledge that the facts stated in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsification to authorities. Dated: Lisa D'Errico DOMENIC D'ERRICO and LISA D'ERRICO Plaintiffs PATRIClA O'BRIEN and VINCENT D'ERRICO, Defendants · IN THE COURT OF COMMON PLEAS · CUMBERLAND COUNTY, PENNSYLVANIA PETITION FOR EMERGENCY RELIEF AND NOW come Plaintiffs, Domenic D'Errico and Lisa D'Errico, by and through their attorneys, TUCKER ARENSBERG & SWARTZ, and hereby aver the following in support of their petition: 1. The Plaintiffs, Domenic D'Errico and Lisa D'Errico, are adult individuals currently residing at 1080 Memory Lane, Mechanicsburg, Cumberland County, Pennsylvania 17050· 2. The Defendant, Vincent D'Errico, is an adult individual whose last known address was 1080 Memory Lane, Mechanicsburg, Cumberland County, Pennsylvania 17050, where he resided with the Plaintiffs. Defendant D'Errico's current whereabouts are unknown to Plaintiffs, but it is believed that he is residing somewhere in Rhode Island. 3. The Defendant, Patricia O'Brien, is an adult individual whose current address is 1080 Memory Lane, Mechanicsburg, Cumberland County, Pennsylvania 17050, where she resides with the Plaintiffs. 4. The Defendants are the natural parents of two minor children, namely Deborah Lynn O'Brien, date of birth April 21, 1995 and Alicia D'Errico, date of birth December 9, 1997. 5. Plaintiff Domenic D'Errico is the natural father of Defendant D'Errico and the paternal grandparent of the subject minor children. Plaintiff, Lisa D'Errico, is the wife of Domenic D'Errico and paternal step-grandparent to the subject minor children. 6. Prior to November 23, 2001, Defendants resided in Rhode Island in a two bedroom house where they lived together with the two subject children, four other children and two other adults. 7. The Defendants contacted Plaintiffs for assistance because they were being evicted from their residence in Rhode Island. 8. The Plaintiffs immediately traveled to Rhode Island and transported the Defendants and the subject minor children back to the Plaintiffs' residence in Cumberland County, Pennsylvania where they arrived on or about November 25, 2001. 9. After their arrival, the Defendants and their children resided with the Plaintiffs and Deborah was enrolled in the Cumberland Valley School District, where she continues to attend. 10. Plaintiff, Lisa D'Errico, found head lice on the children upon their arrival from Rhode Island and immediately took them to a physician for treatment. 11. The children are not covered by policies of health insurance. 12. Since Defendant Patricia O'Brien arrived in Cumberland County, she has been employed at Giant Food Stores, but her attendance at work has been sporadic and unreliable. 13. Defendant Vincent D'Errico vacated the residence of Plaintiffs this past weekend, leaving Defendant Patricia O'Brien and his children. To Plaintiffs' knowledge, Defendant D'Errico has had no contact with Defendant O'Brien or with his children and with the exception of one email to Plaintiff, Domenic D'Errico, has had no further contact With the family. It is believed that Defendant D'Errico has returned to Rhode Island. 14. Defendant Patricia O'Brien has indicated to Plaintiffs that she intends to leave their residence and intends to take the children with her, however, she has neither a safe place to take the children nor does she have the financial ability to provide for the children. 15. Defendants O'Brien and D'Errico's financial situation was so desperate prior to their moving in with Plaintiffs that they were forced to put utility bills in the names of their children since they could not obtain utility services in their own names. 16. Defendant D'Errico's Rhode Island privileges to operate and register a motor vehicle have been suspended due to his failure to properly insure the vehicle. 17. At this point in time, Plaintiffs do not believe that Defendants are emotionally and psychologically capable of caring for the children. 18. Plaintiff, Lisa D'Errico, is employed with the YMCA and manages the after-school childcare program and Plaintiff, Domenic D'Errico, is employed with Ross Stores, East Coast Distribution as the Vice-President. Plaintiffs have been the sole source of financial support for the children since their relocation on or about November 25, 2001. 19. There is no prior order of custody in effect. 20. Plaintiffs have standing to assert a claim for primary physical custody of their grandchildren pursuant to 23 Pa.C.S.A. §5313(b) and pursuant to RMv. Baxter, 777 A.2d ~.~.5 (Pa. Supreme 2001). 21. Plaintiffs request that this Honorable Court grant them primary physical custody of the children or, in the alternative, temporary physical custody until further order of Court rendering a decision with regard to final physical custody. 22. It is in the children's best interest to grant primary physical custody of the children to Plaintiffs for the following reasons: a. The Plaintiffs have a genuine care and concern for their grandchildren; b. The Plaintiffs and their grandchildren have a healthy relationship and formed a bond with each other, which relationship began with the consent of the Defendants; c. The children are doing well in the care of the Plaintiffs and their removal would significantly jeopardize their health and well- being; d. The Plaintiffs can provide clean, safe and stable housing for the children with sufficient reom to comfortably meet their physical needs; e. The Defendants have failed to demonstrate that they can offer clean, safe and stable housing for the children; f. The Plaintiffs can offer a more stable physical and emotional environment than Defendants; g. The Plaintiffs have been the sole source of financial support for the children since November of this year and Defendants have jo failed to demonstrate that they can adequately support their children; Plaintiffs would like to ensure that the children have health insurance and the children could be enrolled under their policies pursuant to an order of custody; The children are enrolled in the Plaintiff's school district and should not be withdrawn in the midst of a semester; Plaintiff, Lisa D'Errico has been the primary caregiver of the children since their arrival on or about November 25, 2001; The welfare of the children would be endangered if they were placed into the primary care of either of the Defendants; and The children would be substantially at risk if they were not placed within the custody of Plaintiffs because of parental neglect. WHEREFORE, Plaintiffs respectfully request that this Court grant them primary physical custody of the children, or in the alternative, temporary primary custody of the children until further Order of Court rendering a decision with regard to final physical custody. Respectfully submitted, TUCKER ARENSBERG & SWARTZ 4~97.1 J -Sandm L. Meilton I.D. No. 32551 111 North Front Street P.O. Box 889 Harrisburg, PA 17108 ATTORNEYS FOR PLAINTIFFS VERIFICATION I, the undersigned, DOMENIC D'ERRICO, acknowledge that the facts stated in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unswom falsification to authorities. Domenic D'Errico VERIFICATION I, the undersigned, LISA D'ERRICO, acknowledge that the facts stated in the foregoing document are true and correct to the best of my knowledge, info..ation and belief. I understand that any false statements herein are made subject to the penalties of 18 Pa. C.S.^. Section 4904 relating to unswom falsification to authorities. Dated: /" / ~'- 0 ~ Lisa D'Erdco DOMENIC D'ERRICO and LISA D'ERRICO, Plaintiffs PATRICIA O'BRIEN and VINCENT D'ERRICO, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-0210 CIVIL TERM CIVIL ACTION - LAW IN CUSTODY TRANSCRIPT OF PROCEEDINGS Proceedings held before the HONORABLE EDWARD E. GUIDO, Cumberland County Courthouse, Carlisle, on Wednesday, January 16, in Courtroom No. 5 Jo Pennsylvania 2002, APPEARANCES: SANDP~A L. MEILTON, Esquire Attorney for Plaintiffs 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: have your emergency petition. Mr. D'Errico? MS. O'BRIEN: Yes. VINCENT D'ERRICO: THE COURT: caseworker back there. MS. MEILTON: Good afternoon. Ms. Meilton, I And you are Ms. O'Brien and Yes. We have a Children and Youth We have the paternal grandparents on this side of the table, Domenic D'Errico and Lisa, and we have the maternal grandfather here, George O'Brien, and we also have an agreement. THE COURT: Good. MS. MEILTON: We would like to read the Is Children and Youth no longer They are not going to be agreement into the record. TME COURT: going to be involved then? MS. MEILTON: involved. THE COURT: Then I know you've got better Thank you. (The Children and Youth Services caseworker things to do. exited the courtroom.) THE COURT: agreement then? Do you want to articulate the MS. MEILTON: Yes, sir. First, I would like 2 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 to thank the 2 this matter resolved. 3 THE COURT: Well, 4 stake, I bend my schedule. 5 MS. MEILTON: upon the enumerate, children, Court for accommodating us so that we could get when children are at Thank you very much. I want to thank all of the parties, too, before I get started, because you really have worked out an arrangement that's for the best interests of the children. The parties have reached an agreement, and it's a two-tier agreement. I will read it into the record now so the Court can enter a record accordingly. We're going to start off with a temporary order which will involve the sharing of legal custody among natural mother, natural father and the paternal grandmother and grandfather. Physical custody will also be shared, but primary custody shall remain with the paternal grandparents. The parties have agreed that, contingent satisfaction of certain conditions which I'll the paternal grandparents shall deliver the Deborah, December 8, 1997, on February 16, 2002. Thereafter, to share legal and physical primary physical custody at mother and father, born April 21, 1995, and Alicia, born to their mother and father in Rhode Island the parties shall continue custody of the children, but that point will go to the natural Patty and Vincent. 3 1 This arrangement shall continue for another 2 six months, after which time the situation shall be reviewed 3 by the parties. If all of the conditions which will be 4 outlined in a minute have been satisfied, then custody shall 5 be as follows: Shared legal custody between mother and 6 father and physical custody also shared by mother and father, 7 Vincent and Patty. 8 THE COURT: Are mother and father separated? 9 MS. MEILTON: They are not married. They 10 are, though, going to start living together with their return 11 to Rhode Island. The conditions for the transfer of custody 12 on February 16th are as follows: 13 Father, Vincent D'Errico, shall have 14 full-time employment and shall be in a financial position to 15 support his children. 16 2. Mother, Patty O'Brien, shall be 17 gainfully employed. 18 3. The parties shall be living in an 19 apartment which is appropriate and safe for the raising of 20 the children. In that regard, Domenic D'Errico, paternal 21 grandfather, is going to give George O'Brien $1,200.00 which 22 shall be used to pay the security deposit on the apartment 23 which Vincent has already identified and pay the last month's 24 rent. The $1,200.00 is a required deposit, and Domenic will 25 pay that money. In addition, Domenic will return to Vincent 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 approximately $600.00 which he's holding on behalf of mom and dad. THE COURT: That will be done today? MS. MEILTON: That will be done at the end of this hearing, before they leave for Rhode Island. Appropriate child care shall be in place for the girls. Deborah, the oldest girl, is currently attending school in the Cumberland Valley School District. Mom and dad are going to make the appropriate arrangements to have her enrolled in school in Rhode Island, the school that she had previously attended, and they will make the arrangements, along with paternal grandma, to get the records transferred to Rhode Island so that Deborah can start school immediately. On February 15th, the apartment rent has to and all of the utility bills have to be paid in be current, full. The apartment shall be clean, appropriately furnished. safe and for the arrange Island. Health insurance coverage shall be in place children. It's my understanding that mother will for that through the Department of Welfare in Rhode Any vehicles which are used to transport the 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 children shall be properly registered and insured in Rhode Island. The children shall be transported only by validly licensed drivers. George O'Brien, who is the maternal grandfather, and Domenic D'Errico shall make the determination as to whether or not the above conditions have been satisfied and as to whether or not that transfer of custody is going to take place on February 16th. THE COURT: Well, they can make that determination, just so these parents understand that the final determination is mine. If you do not agree with their determination, I will make the final determination. MS. MEILTON: I was getting to that, because I figure there may be a disagreement. If the conditions have not been met, whether that's decided by your fathers or whether it's decided by the Court, you guys are agreeing if those conditions have not been met, then the girls will remain with paternal grandma and grandpa until the conditions are satisfied. After the six months of primary custody in mom and dad, maternal and paternal grandpa have again agreed that they will review the situation and make sure that all of those above conditions are still being satisfied. If they are satisfied, plus one more, then the custody will remain 6 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 with mom and dad. 2 The additional requirement is that Deborah 3 must have gone to school on a daily basis and be attending 4 school on a regular basis and current with her schoolwork. 5 Again, it's our hope that maternal grandfather and paternal grandfather will be able to make that determination; but, if not, if at any point in time there's a conflict as to whether or not those conditions are the Cumberland County Court will make the satisfied, decision. Honor. Those are the terms of the agreement, Your We would ask that that be incorporated into an order. THE COURT: Ms. O'Brien, how old are you? MS. O'BRIEN: Twenty-five. THE COURT: Have you heard the agreement as dictated by Ms. Meilton? MS. O'BRIEN: THE COURT: of that agreement? MS. O'BRIEN: THE COURT: a court order? MS. O'BRIEN: sir? Yes. Are you agreeable to the terms Yes. And you want me to enter that as Yes. THE COURT: Mr. D'Errico, how old are you, 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 VINCENT D'ERRICO: Twenty-four. THE COURT: Have you heard the terms of the agreement as dictated by Ms. Meilton? VINCENT D'ERRICO: Yes. THE COURT: Do you want and wish me to enter that as an order of this Court? VINCENT D'ERRICO: Yes. THE COURT: Mr. D'errico, Sr., I don't need to know how old you are. Have you heard the terms of the agreement as dictated by your counsel? DOMENIC D'ERRICO: Yes, and I am in agreement. THE COURT: Ma'am, do you agree with the terms as dictated by your counsel? MS. D'ERRICO: Yes, I do. THE COURT: We'll enter the following Order: "AND NOW, this 16th day of January, 2002, the parties having stipulated to the custodial situation for at least the next six months as contained in the attached transcript, their stipulation is incorporated as an Order of this Court. "This Court shall retain jurisdiction." THE COURT: If on February 16th your parents are telling you that you don't get your kids back and you think you've abided by the terms and conditions, come back to 8 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 me, and I'll take a look at it. Okay. Likewise, I'll retain 2 jurisdiction. So if things change between now and whenever, 3 if there's ever a change in circumstances, what I will always 4 look at is what's in the best interests of these children. 5 So you need to take a look at that if the parties cannot otherwise agree. Good luck to you, and you are all to be commended for reaching that MS. MEILTON: you again for accommodating. THE COURT: agreement. Anything else? That's all, Your Honor. Good luck to you. (Court was adjourned.) Thank 9 CERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause and that this is a correct transcript of same. Susan Rice Stoner Official Stenographer The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. Date Edward E. Guido, J. DOMENIC D'ERRICO and LISA D'ERRICO, Plaintiffs PATRICIA O'BRIEN and VINCENT D'ERRICO, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-0210 CIVIL TERM CIVIL ACTION - LAW IN CUSTODY ORDE__ROF COURT AND NOW, this 16th day of January, 2002, the parties having stipulated to the custodial situation for at least the next six months as contained in the attached transcript, their stipulation is incorporated as an Order of this Court. This Court shall retain jurisdiction. By the Court, Edward E. Guido, J. Sandra Meilton, Esquire Attorney for Plaintiffs srs DOMENIC D'ERRICO and LISA D'ERRICO Plaintiffs PATRICIA O'BRIEN and VINCENT D'ERRICO, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA :NO. : : CIVIL ACTION - LAW : IN CUSTODY : ORDER AND NOW, this 2002, upon consideration of Plaintiffs' Petition for Emergency Relief, it is hereby ORDERED THAT: Plaintiffs are hereby granted primary physical custody of the children, Deborah Lynn O'Brien and Alicia D'Errico until further Order of this Court: TUCKER ARENSBERG & SWARTZ I 11 NORTH FRONT STREET P.O. BOX 889 HARRISBURG, PENNS ~vd.M,-~-ff~ 17108-0889 (717) 234-4121 DOMENIC D'ERRICO and LISA D'ERRICO Plaintiffs : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. : PATRICIA O'BRIEN and VINCENT D'ERRICO, Defendants : CIVIL ACTION - LAW : IN CUSTODY : ORDER OF COURT AND NOW, upon consideration of the attached Complaint, it is hereby directed that the parties and their respective counsel appear before , Custody Conference Officer, on the day of ,2002, at .m. at Cumberland County, Pennsylvania, 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. Children need not be present at the Conference unless their presence is requested by the Custody Conference Officer. Failure to appear at the Conference may provide grounds for the entry of a temporary or permanent Order. FOR THE COURT, Date of Order: By:. Custody Conference Officer PAPER TO YOUR LAWYER AT ONCE. IF LAWYER OR CANNOT AFFORD ONE, GO TO OFFICE SET FORTH BELOW TO FIND OUT LEGALHELP. Bar Association 7) 249-3166 or 800-990-9108