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HomeMy WebLinkAbout04-3826JOHN DILLER Plaintiff V. WILMALEA EARNEST Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 04- 31'Z6 CIVIL TERM CIVIL ACTION - CUSTODY COMPLAINT FOR CUSTODY 1. Plaintiff is John Diller, an adult individual whose residence is at 339 High Mountain Road, Shippensburg, Cumberland County, Pennsylvania. 2. Defendant is Wilmalea Earnest, an adult individual whose residence is at 367 Old State Road, Gardners, Cumberland County, Pennsylvania. 3. Plaintiff seeks custody of his child April Ann Diller, born April 2, 1993, currently residing at 339 High Mountain Road, Shippensburg, Cumberland County, Pennsylvania. 4. The child is presently in the custody of Defendant. 5. Since the child's birth, the child has resided at the following addresses: Name Address Dates John Diller 339 High Mountain Rd., Shippensburg, PA Aug. 2001- Present Wilmalea Earnest 367 Old State Rd., Gardners, PA Jan 2001- Aug. 2001 John Diller & 339 High Mountain Rd., Shippensburg, PA Apr. 1993- Jan 2001 Wilmalea Earnest 6. The relationship of the Plaintiff to the child is that of natural father. 7. The relationship of the Defendant to the child is that of natural mother. 8. The Plaintiff has not participated as a party or in any other capacity, in other litigation concerning the custody of the child in this or any other Court. 9. Plaintiff has no information of a custody proceeding concerning the child pending in a Court of this Commonwealth. 10. The best interest and permanent welfare of the child will be served by granting the relief requested because: a. The Plaintiff is the primary care giver with respect to the child. b. The Defendant gives substandard care to the child due to Defendant'. mental health problems. c. On several occasions, Mother and Stepfather have taken the child to bars in Mount Holly Springs at or about 11:00 PM for extended periods of time in order to imbibe alcohol. d. Daughter has been diagnosed with allergies and asthma and Mother seems to ignore the physical illness of daughter. e. Mother and Stepfather smoke in residence and presence of daughter known to them to have respiratory problems. Mother has both physically and mentally abused the child by ridiculing the child for a frequent bed wetting problem and by grabbing the child in a physically inappropriate manner such as lifting her from the ground by her neck. Since birth Father has been primary caretaker of the daughter, caregiver of the daughter; in addition Mother exclusively provided daughter to Father in August of 2001 and Father as been the primary caregiver since that time. f. Father advised Mother of his intention to relocate to a Morrisville, PA address: As a result, when father attempted to secure the return of his daughter from a weekend visit on Sunday, August 1, 2004 at approximately 6:00 PM, the natural Mother refused to allow the daughter to return with Father and a situation arose requiring the intervention of the local police. g. The childs emotional, physical/health and educational needs would be better met by the child placed in the primary physical custody of Father and were the child permitted to relocate with Father to Morrisville, PA where she would attend the Pennsbury School, Falls Township. 11. Each parent whose parental rights to the child have not been terminated and the person who has physical custody of the child have been named as parties to this action. No other persons are known to have or claim to have any right to custody or visitation of the child other than the parties to this action. WHEREFORE, Plaintiff requests your Honorable Court provide sole legal custody to Father and primary physical custody to Father; in addition, we request that the Father be granted permission to relocate with his daughter to Morrisville, PA. Respectfully Submitted TURO LAW OFFICES DgW ALEN R. 28 South Pitt StfW Carlisle, PA 17013 (717) 245-9688 Attorney for Plantiff VERIFICATION I verify that the statements made in the foregoing Custody Complaint are true and correct. I understand that false statements made herein are subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. Date J n Diller CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the Complaint an Custody upon Wilmalea Earnest by depositing same in the United States Mail, firs class, postage pre-paid on the 4th day of August, 2004, from Carlisle, Pennsylvania addressed as follows: Wilmalea Earnest 367 Old State Road Gardner. PA 17324 TURO LAW OFFICES Galen R. Waltz, Es ' e 28 South Pitt Str Carlisle, PA 17013 (717) 245-9688; FAX 717.245.2165 n ? ? ?? ?, +? ^; ? ?' ` hJ ?\ ? ?? \? ?, ?? ? ?' r ? ?? ?? ,?, _, ;:::, JOHN DILLER : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. :NO. 04- 3Fa& CIVIL TERM : CIVIL ACTION - CUSTODY WILMALEA EARNEST Defendant MERGENCY APPLICATION FOR SPECIAL RELIEF IN CUS7 PURSUANT TO 42 Pa.C,S.A. 191g?13 AND NOW, this 4TH day of August, 2004, comes the Petitioner John Diller, by his attorney Galen R. Waltz, Esquire, who seeks emergency special relief under 1915.13 and avers the following: 1. The Plaintiff is John Diller who resides at 339 High Mountain Road, Shippensburg, PA 17257, Cumberland County. 2. The Defendant is Wilmalea Earnest who resides at 367 Old State Road, Gardners, PA 17324, Cumberland County. 3. The Plaintiff is the natural father of April Ann Diller, Daughter, whose date of birth is April 2, 1993. 4. The Defendant, Wilmalea Earnest is the natural mother of the daughter. 5. Neither Plaintiff or Defendant were ever married to each other; therefore, the child was born out of wedlock. 6. Since August 2001 the child has lived exclusively with the father and he has been throughout the child's life the primary caregiver. 7. The father has permitted the mother to have liberal visitations without order of court. 8. During the return exchange of child to father on Sunday, August 1, 2004 the mother refused to allow the daughter to return to the home of the father and local police were summoned but powerless to intervene without order of court. 9. The father fears for the physical and mental well being of the daughter based upon the following historical acts: a. Mother has historical mental health diagnosis and treatment and prior mental health commitment. b. The child has several physical diagnosed problems, asthma and other allergies, to which mother ignores and fails to or otherwise refuses to treat. C. Daughter also suffers from "bed wetting" which is met by the mother with outward ridicule and disdain in the presence of the child. d. Although mother is aware of the childs asthmatic condition, the mother and stepfather continue to smoke in their residence and in the presence of the child. e. Several months after the birth of the child the mother indicated to the father that she may "kill" the child or words to that effect. f. Mother verbally abuses the child. g. On or about August 2000 mother picked up the child by the throat where the feet of the child did not touch the floor. h. Mother instructed the stepfather to "spank" the child and it is believed that the stepfather complied. 10. It is feared that the child is in danger of both physical and mental abuse based upon historical statements and actions of both the defendant mother and the stepfather. 11. It is fathers intention to marry and relocate in the Morrisville, Pennsylvania area where the daughter would attend Pennsbury School located in Falls Township during the 2004/2005 school year. 12. The daughter was home schooled for two years by father and was scheduled to attend the Big Spring Middle School District for the first time in 2004/2005; therefore, initiating change to a new school district in Morrisville would not be disruptive to the Childs educational process. 13. For the forgoing reasons it is in the best interest of the child that this court intervene for the Childs health, welfare and safety. WHEREFORE, The father respectfully requests this honorable court order that the child immediately be placed in the primary physical of the father pending the resolution of the custody complaint filed in Cumberland County on August 4, 2004; furthermore, father requests that mothers visitations if granted by this court, be supervised and finally, father requests this honorable court allow father to relocate to Morrisville and enroll the child in the Pennsbury School, Falls Township School District for the ensuing 2004/2005 school year. Respectfully Submitted TURO LAW OFFICES D EN R WAL re 28 South Pitt Stree Carlisle, PA 17013 (717) 245-5688 Attorney for Plantiff VERIFICATION I verify that the statements made in the foregoing Emergency Application For Special Relief In Custody Case Pursuant To 42 Pa.C.S.A. § 1915.13 are true and correct. I understand that false statements made herein are subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. ti Dat Zn-!iller CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the Complaint and Custody upon Wilmalea Earnest by depositing same in the United States Mail, first class, postage pre-paid on the 95-4 day of Z?-I .vSjf- , 2004, from Carlisle, Pennsylvania, addressed as follows: Wilmalea Earnest 367 Old State Road Gardner, PA 17324 TURO LAW OFFICES Galen R. Waltz, Esquir 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688; FAX 717.245.2165 17 N S:? O f ? .T Lo W < © CL JOHN DILLER : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 04- 3YO14P CIVIL TERM CIVIL ACTION - CUSTODY WILMALEA EARNEST Defendant EMERGENCY APPLICATION FOR SPECIAL RELIEF IN CUSTODY CASE PURSUANT TO 42 Pa.C..S.A. 41915.13 AND NOW, this 4TH day of August, 2004, comes the Petitioner John Diller, by his attorney Galen R. Waltz, Esquire, who seeks emergency special relief under 1915.13 and avers the following: 1. The Plaintiff is John Diller who resides at 339 High Mountain Road, Shippensburg, PA 17257, Cumberland County. 2. The Defendant is Wilmalea Earnest who resides at 367 Old State Road, Gardners, PA 17324, Cumberland County. 3. The Plaintiff is the natural father of April Ann :Diller, Daughter, whose date of birth is April 2, 1993. 4. The Defendant, Wilmalea Earnest is the natural mother of the daughter. 5. Neither Plaintiff or Defendant were ever married to each other; therefore, the child was born out of wedlock. 6. Since August 2001 the child has lived exclusively with the father and he has been throughout the child's life the primary caregiver. 7. The father has permitted the mother to have liberal visitations without order of court. 8. During the return exchange of child to father on Sunday, August 1, 2004 the mother refused to allow the daughter to return to the home of the father and local police were summoned but powerless to intervene without order of court. 9. The father fears for the physical and mental well being of the daughter based upon the following historical acts: a. Mother has historical mental health diagnosis and treatment and prior mental health commitment. b. The child has several physical diagnosed problems, asthma and other allergies, to which mother ignores and fails to or otherwise refuses to treat. c. Daughter also suffers from "bed wetting"' which is met by the mother with outward ridicule and disdain in the presence of the child. d. Although mother is aware of the childs asthmatic condition, the mother and stepfather continue to smoke in their residence and in the presence of the child. e. Several months after the birth of the child the mother indicated to the father that she may "kill" the child or words to that effect. f Mother verbally abuses the child. g. On or about August 2000 mother picked up the child by the throat where the feet of the child did not touch the floor. h. Mother instructed the stepfather to "spank" the child and it is believed that the stepfather complied. 10. It is feared that the child is in danger of both physical and mental abuse based upon historical statements and actions of both the dei:endant mother and the stepfather. 11. It is fathers intention to marry and relocate in the Morrisville, Pennsylvania area where the daughter would attend Pennsbury School located in Falls Township during the 2004/2005 school year. 12. The daughter was home schooled for two years by father and was scheduled to attend the Big Spring Middle School District for the first time in 2004/2005; therefore, initiating change to a new school district in Morrisville would not be disruptive to the childs educational process. 13. For the forgoing reasons it is in the best interest of the child that this court intervene for the childs health, welfare and safety. WHEREFORE, The father respectfully requests this honorable court order that the child immediately be placed in the primary physical of the father pending the resolution of the custody complaint filed in Cumberland County on August 4, 2004; furthermore, father requests that mothers visitations if granted by this court, be supervised and finally, father requests this honorable court allow father to relocate to Morrisville and enroll the child in the Pennsbury School, Falls Township School District for the ensuing 2004/2005 school year. Respectfully Submitted TURO LAW OFFICES ` DA r ALEN R. WALTZf. re 28 South :Pitt Stree Carlisle, PA 17013 (717) 245-9688 Attorney for Plantiff VERIFICATION I verify that the statements made in the foregoing Emergency Application For Special Relief In Custody Case Pursuant To 42 Pa.C.S.A. § 1915.13 are true and correct. I understand that false statements made herein are subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. bate(/ I An Diller CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the Complaint and Custody upon Wilmalea Earnest by depositing same in the United States Mail, first class, postage pre-paid on the 0.44 day of Ct - wS l , 2004, from Carlisle, Pennsylvania, addressed as follows: Wilmalea Earnest 367 Old State Road Gardner, PA 17324 TURO LAW OFFICES Galen R. Waltz, Esquir 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688; FAX 717.245.2165 W ? O ICI O \O Q? l.? N tC'O [r`7 C . T' r.? c? "ft ?- T - ^S 1 l=? -.{in JOHN DILLER : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 04- 3 8461 CIVIL TERM WILMALEA EARNEST Defendant CIVIL ACTION - CUSTODY ORDER AND now this U? day of %3 1k 2004, after reviewing the emergency application for special relief, a hearing on this matter shall be held on '7 a day of 2004 in courtroom number at 2-11 M and the current custodian of the child shall present the child at the hearing in this matter. BY THE COUR - J. Cc: Oil alea Earnest j2ya'len R. Waltz, Esq. 4 ?S os ov o? J'^" '?? ?. ?. r ,_y ?'V e?:? lr`? ?-"IchU(?d IN THE COURT OF COMMON PLEAS OP JOHN DILLER CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF V. 04-3826 CIVIL ACTION LAW WILMALEA EARNEST IN CUSTODY DEFENDANT ORDER OF COURT Wednesday, August 11, 2004 upon consideration of the attached Complaint, AND NOW, r P M Verney, Esq. , the conciliator, it is hereby directed that parties and their respective counsel appear be Thursday, fore ac September 02, 2004 at 10:30 AM at 4th Floor, Cumberland Coun Courthouse, Carlisle on the issues in a Pre-Hearing Custody Conference. At such conference, an effort will be made to resolve n dispute; or if this cannot be accomplished, to define and narrow the issues to be heard by the court, and to enter into a temporary order. All children age five or older may or sob be present at the conference. Failure to appear at the conference may provide grounds for entry of a temporary permanent 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', mhc By: ism t!e11nv M Vernvv, Fs - Custody Conciliator The Court of Common Pleas of Cumberland County is required by law to comply with the s Act of 1990. For information about accessible facilities and reasonable Americans with Disabilite are contact our office. please accommodations available to disabled individuals having business before the court, 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 u Cumberland County Bar Association 32 South Bedford Slxeet Carlisle, Pennsylvania 1.7013 Telephone (717) 249-3166 J6?v SEP n 3 2004 V JOHN DILLER, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2004-3826 CIVIL TERM WILMALEA EARNEST, : CIVIL ACTION - LAW Defendant : IN CUSTODY ORDER OF COURT AND NOW, this day of 2004 u on consideration of the attached Custody Conciliation Re ort, it is ordered and directed as follows: 1. Father's Application for Emergency Relief is hereby withdrawn and the hearing scheduled for October 7, 2004 at 9:30 a.m. on said Application is hereby cancelled. 2. The Father, John Diller and the Mother, Wilmalea Earnest, shall have shared legal custody of April Ann Diller, born April 2, 1993. Each party shall have an equal right, to be exercised jointly with the other party, 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. This means that both parents shall be entitled to all information from school and medical professionals. 3. Mother shall have primary physical custody of the Child. This means that the child must reside in Mother's home. 4. Father shall have periods of partial physical custody of the Child as follows: A. Every third weekend of the month from Friday at 6:30 p.m. to Sunday at 7:00 p.m., except when Father is in the Carlisle area, these times shall be Friday at 8:00 p.m. and Sunday at 5:00 p.m. (This time change also applies to the holiday schedule.) For purposes of this Order, a weekend shall be considered a weekend if the first day of the month falls on a Friday or Saturday, but not a Sunday. B. Two weeks in the summer, either consecutive or non-consecutive, at Father's option, provided he give Mother 30 days prior notice of the exercise of this paragraph. C. Such other times as the parties agree. -tic rA N 5. The parties shall share the Thanksgiving holiday such that Father shall always have physical custody of the child from 6:30 p.m. Wednesday to Friday at a time agreed by the parties and Mother shall always have physical custody from Friday to Monday. 6. The Christmas holiday shall be divided into two Blocks. Block A shall be from after school when Christmas recess begins to December 28 at 6:30 p.m. Block B shall be from December 28 at 6:30 p.m. to January 1 at 7:00 p.m. Mother shall have Block A in even numbered years and Block B in odd numbered years. Father shall have Block A in odd numbered years and Block B in even numbered years. 7. The parents shall alternate the following holidays: Labor Day, Columbus Day, Veterans Day, Martin Luther King, Jr. Day, Presidents Day, Easter, Memorial Day, Flag Day and July 4th. When a holiday falls on a Monday, Father has the option of exercising the entire weekend from Friday at 6:30 p.m. to Monday at 7:00 p.m. instead of his third weekend each month or in addition to his third weekend. 8. Transportation shall be shared such that the parties shall meet at the Morgantown Interchange of the Pennsylvania Turnpike, except when Father is in the Carlisle, area, the exchange location shall be the Walmart in Carlisle. The child shall not be transported by her half sisters. 9. The parties shall cooperate with counseling for the child. In this regard Father approves the counselor Mother has already selected for the child. Father reserves the right to select a counselor of his choice. Both parties shall cooperate with the child's counselors, signing the necessary consents and releases for the counselors to communicate with each parent and with each other. 10. No smoking is permitted in either parent's home. 11. Each parent shall provide a current telephone number and address to the other parent. 12. The parties shall enjoy liberal telephone contact with the child. 13. Neither party shall do anything nor permit a third party to do 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. 14. This Order is entered pursuant to an agreement of the parties at 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. BY THE COURT, J. rsley Oler, Jr., J. ca-Z#an R. Waltz, Esquire, Counsel for Father vaean Shultz, Esquire, Counsel for Mother oq' ld -o T JOHN DILLER, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. :2004-3826 CIVIL TERM WILMALEA EARNEST, : CIVIL ACTION - LAW Defendant IN CUSTODY PRIOR JUDGE: J. Wesley Oler, Jr., J. CUSTODY CONCILIATION SUMMARY REPORT IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE 1915.3-8, the undersigned Custody Conciliator submits the following report: 1. The pertinent information concerning the Child who is the subject of this litigation is as follows: NAME DATE OF BIRTH CURRENTLY IN CUSTODY OF April Ann Diller April 2, 1993 Mother 2. A Conciliation Conference was held in this matter on September 2, 2004, with the following individuals in attendance: Father, John Diller, with his counsel, Galen R. Waltz, Esquire and Wilmalea Earnest, with her counsel, Sean Shultz, Esquire. 3. Pending before the Honorable J. Wesley Oler, Jr. is Father's Application for Emergency Relief. By Order dated August 8, 2004, a hearing on that matter is scheduled for October 7, 2004 at 9:30 a.m. Because the parties have agreed to an Order of Court at the Conciliation Conference, said Emergency Application is withdrawn and the hearing for October 7, 2004 is cancelled. 4. The parties agreed to the entry of an Order in the form as attached. -? ?. ?L" 9-3 Date acq ine M. Verney, Esquire Custody Conciliator