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HomeMy WebLinkAbout05-0152 v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. ()S" - IS-~ i?oL'-r02...1 CIVIL ACTION - CUSTODY R. KIRK and BETSY FIRESTONE, (Paternal Grandparents) Plaintiffs DAVID and LAINA FIRESTONE, (Natural Parents) Defendants COMPLAINT BY PATERNAL GRANDPARENTS FOR VISITATION/PERIODS OF ALTERNATING PHYSICAL CUSTODY AND NOW, comes the Plaintiffs, R. Kirk and Betsy Firestone, by and through their attorney, Gary L. Kelley, and file this custody complaint, and in support thereof, respectfully aver as follows: 1. Plaintiffs are R. Kirk and Betsy Firestone who reside at 729 Hilltop Drive, New Cumberland, Pennsylvania 17070. 2. Defendants are David and Laina Firestone who reside at 540 Coolidge Street, New Cumberland, Pennsylvania 17070. 3, Plaintiffs seek visitation/periods of alternating physical custody of the following children: Name Present residence Age David K. Firestone, Jr. Kahley Firestone 540 Coolidge Street New Cumberland DOB 5/7/93 DOB 11/5/96 The children were born of the marriage. The children are presently in the custody of Defendants. 4. During the past two years, the children have resided with the following persons and at the following addresses: Persons Addresses Dates Defendants 540 Coolidge Street Since birth New Cumberland 5. The mother of the children is a listed Defendant She is married to the father of the children, the other listed Defendant 6. The relationship of Plaintiffs to the child is that of paternal grandmother and grandfather. Plaintiffs currently reside with the following persons: Name Relationship N/A 7, The relationship of Defendants to the children is that of father and mother. Defendants currently resides with the following persons: Name Relationship David Firestone Kahley Firestone Son Daughter 8. 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 who claims to have custody or visitation rights with respect to the children. 9. The best interest and permanent welfare of the children will be served by granting the relief requested because: Plaintiffs are fit granparentsparents. The children see Plaintiffs as a source of love and affection. Granting reasonable periods of visitaion/alternating physical custody to the Plaintiffs is in the best intersts of the minor children. Each parent whose parental rights to the child which has not been terminated and the person who has physical custody of the child have been named as parties to this action. WHEREFORE, Plaintiffs respectfully request that this Honorable Court grant reasonable periods of visitation/alternating physical custody to Plaintiffs. Respectfully submitted, ~~4Jju.' G L. Kelley ! ID . 6801 1119 North Front Street Harrisburg, P A 17102 (717) 238-1484 Attorney for Plaintiffs VERIFICATION 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. Section 4904, relating to unsworn falsification to authorities. ~,Q-8~ VERIFICATION 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. Section 4904, relating to unsworn falsification to authorities. 1{~L ~ 0 ~ () l"--> c.:;) 0 - = ~ ~ - -~~ CJl -n -' :~!~ 1,-: - , (.... ~ ~ :l,"":ti.. ~t: rn .>" : -.,n1 0) ~ __c. 0 :ucJ 01 "-.J ~o ;p. - r--- ...0 ~ ~- ~ oj) !4 ;-~ .~:~ 7C> V ~ olTl ~',.~ ~;! ~.. .r F ...( ~)..J N .< ~ "-l:- f' R. KIRK AND BETSY FIRESTONE PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. 05-152 CIVIL ACTION LAW DAVID AND LAINA FIRESTONE DEFENDANT IN CUSTODY ORDER OF COURT AND NOW, Tuesday, January 18, 2005 , upon cons ,deration of the attached Complaint, it is hereby directed that parties and their respective counsel appear before Dawn S. Sunday, Esq. at 39 West Main Street, Mecbanicsburg, PA 17055 on Wednesday, February 09, 2005 , the conciliator, 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. All children age five or older may also be present at the conference. Failure to appear at the conference may provide grounds for entry of a temporary or penn anent 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: Isl Dawn S. Sundav., 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 infonnation 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 Assodation 32 South Bedford Strecl Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 i1:1 st , t\-. ~- 1r" ""- 'j ~ '" is ""- ~7 1-~' 4n.4J) 9111 / ','~' r.~ 1 ' \ 1,"" ~ ' -' ,,~ ' .\ () \ ~<.':r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA R. KIRK AND BETSY FIRESTONE, NO. 05-152 CIVIL TERM Plaintiff VS. DAVID AND LAINA FIRESTONE, CIVIL ACTION - LAW Defendant IN CUSTODY PETITION FOR SPECIAL RELIEF. OR IN THE ALTERNATIVE. FOR LEAVE OF COURT TO TAKE DEPOSITION OF PLAINTIFFS Defendants, David Firestone and Laina Firestone, by their Attorney file this Petition and represent that: 1. Your Petitioners are David Firestone and Laina Firestone, the Defendants in the above captioned custody action. Your Petitioners are hereafter referred to as "Parents" . 2. Your Respondents are R. Kirk Firestone and Betsy Firestone, the Plaintiff in the above captioned custody action. Your Respondents are hereafter referred to as "Grandparents" . 3. Parents are the natural parents of two (2) minor children who are the subject of the within custody action, to wit: David K. Firestone, Jr., born 5/7 /93 and Kahley Firestone, born 11/5/96. David and Kahley are hereinafter referred to as "Children" . 4. The Complaint filed by Grandparents is attached hereto, marked Exhibit" A" and made a part hereof. 5. Grandparents are the parents of David Firestone, one of the Parents, and the grandparents of the Children. 6. The Parents of the Children are the Defendants and both are living. 7. The Parents are married to each other, and are not separated nor divorced. 8. The Children never lived with Grandparents for any period of time including the 12 or more month period provided in 23 Pa.C.S.A. 5313(a). 9. It is not in the best interest of the Children not to be in the custody of either Parent and instead to be in the custody of the Grandparents. 10. The Grandparents never assumed the role and responsibilities of the Children's parent(s), nor provided for the physical, emotional and social needs of the Children for any period of time including the 12 or more month period provided in 23 Pa.C.S.A. 5313(b). 11. None of the Children was ever declared to be dependent and the Grandparents never assumed the responsibility for a child who has been determined to be a dependent child pursuant to 42 Pa.c.S. Camp Hill. 63 (relating to juvenile matters). 12. The Children are not substantially at risk due to parental abuse, neglect, drug or alcohol abuse or mental illness and the Grandparents have not assumed nor deemed it necessary to assume responsibility for a child who is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or mental illness 13. Parents and Grandparents have no relationship with each other. 14. Grandparents have had no contact with the Children for at least five (5) years. Prior to five (5) years ago, Grandparents only saw the Children occasionally and then only in the presence of one of the Parents. Grandparents have no relationship with the Children. 15. The right to visitation, partial custody or custody for Grandparents is governed by statute, to wit, 23 Pa.C.S.A. Sections 5311 though 5313 which provide: 5311. When parent deceased. If a parent of an unmarried child is deceased, the parents or grandparents of the deceased parent may be granted reasonable partial custody or visitation rights, or both, to the unmarried child by the Court upon a finding that partial custody or visitation rights, or both, would be in the best interest of the child and would not interfere with the parent-child relationship. The Court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application. 5312. When parents' marriage is dissolved or parents are separated. In all proceedings for dissolution, subsequent to the commencement of the proceeding and continuing thereafter or when parents have been separated for six months or more, the Court may, upon application of the parent or grandparent of a party, grant reasonable partial custody or visitation rights, or both, to the unmarried child if it finds that visitation rights or partial custody, or both, would be in the best interest of the child and would not interfere with the parent-child relationship. The Court shall consider the amount of personal contact between the parents or grandparents of the party and the child prior to the application. ~ 5313. When grandparents may petition (a) Partial custody and visitation.--If an unmarried child has resided with his grandparents or great-grandparents for a period of 12 months or more and is subsequently removed from the home by his parents, the grandparents or great-grandparents may petition the Court for an order granting them reasonable partial custody or visitation rights, or both, to the child. The Court shall grant the petition if it finds that visitation rights would be in the best interest of the child and would not interfere with the parent-child relationship. (b) Physical and legal custody.--A grandparent has standing to bring a petition for physical and legal custody of a grandchild. If it is in the best interest of the child not to be in the custody of either parent and if it is in the best interest of the child to be in the custody of the grandparent, the Court may award physical and legal custody to the grandparent. This subsection applies to a grandparent: (1) who has genuine care and concern for the child; (2) whose relationship with the child began with the consent of a parent of the child or pursuant to an order of Court; and (3) who for 12 months has assumed the role and responsibilities of the child's parent, providing for the physical, emotional and social needs of the child, or who assumes the responsibility for a child who has been determined to be a dependent child pursuant to 42 Pa. C. S. CH. 63 (relating to juvenile matters) or who assumes or deems it necessary to assume responsibility for a child who is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or mental illness. The Court may issue a temporary order pursuant to this section. 16. Parents oppose the Grandparents' claim of rights of custody and/or visitation on the basis that the Grandparents cannot prove the right to such visitation and/or custody rights under 23 Pa.C.S.A. Sections 5311 through 5313. 17. Even if Grandparents have standing to bring a custody action, they still must be able to prove their claim on the merits. 18. Grandparents cannot prove their claim on the merits unless they can establish their claim for custody rights falls within one of the provisions of 23 Pa.C.S.A. Sections 5311-5313 19. Parents believe that if Grandparents are questioned they will acknowledge and admit the following, NONE OF WHICH IS DENIED IN THEIR CUSTODY COMPLAINT: a. The Parents of the Children are the Defendants and both are living. b. The Parents are married to each other, and are not separated nor divorced. c. The Children never lived with Grandparents. d. It is not in the best interest of the Children to be in the Custody of the Grandparents and not to be in the custody of the Parents. e. The Grandparents never assumed the role and responsibilities of the Children's parent(s), nor provided for the physical, emotional and social needs of the Children for any period of time. f. None of the Children was ever declared to be dependent and the Grandparents never assumed the responsibility for a child who has been determined to be a dependent child pursuant to 42 Pa.c.S. A. 63 (relating to juvenile matters). g. The Children are not substantially at risk due to parental abuse, neglect, drug or alcohol abuse or mental illness and the Grandparents have not assumed nor deemed it necessary to assume responsibility for a child who is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or mental illness. 20. If the Grandparents acknowledge and admit the facts set forth in paragraph19 above no genuine issue of fact can be found to exist as Grandparents will not qualify for the entry of an award of custody or visitation rights under 23 Pa.C.S.A. Sections 5311-5313 and this case should be dismissed. This admission can be obtained either through a Court hearing or on a Motion for Summary Judgment which Parents intend to file, if necessary. 21. The only way to establish that no genuine issue of fact exists is to permit Parents the right to question the Grandparents either in a hearing on the request for special relief of by way of deposition. 22. Knowing that Grandparents cannot establish that they have a right to custody under 23 PA.C.S.a. Sections 2311-5313, Parents asked Grandparents to withdraw their complaint, which request was denied by Grandparents, not on the basis that they have custody rights under these sections, but rather that they wanted their day in Court. 23. Parents and the Children should not be put to the burden of a full trial of this case if no genuine issue of fact exists. 24. The Children and the Parents will be unnecessarily traumatized if forced to go through a full custody hearing when the Grandparents have no legitimate hope or chance of being successful. 25. A copy of this Petition was served upon Grandparents' Attorney of record on February 2, 2005. That Attorney has not agreed to the relief requested herein. 26. No judge was previously assigned to this case. Wherefore, Defendants move this Honorable Court to enter an order: A. Entering a Rule upon grandparents to show cause why their case should not be dismissed since they cannot prove a right to an award of visitation or custody under 23 Pa.C.S.A. Sections 5311-5313, returnable at a hearing to be scheduled and after such hearing dismissing grandparents action. B. Granting Parents leave to depose the Grandparents as a preliminary step to the filing of a Motion for Summary Judgement so that the parents can establish that no genuine issue of fact exists and can seek the dismissal of the grandparents' custody action without the burden of suffering through a full hearing and exposing the children to the trauma of that proceeding. Respectfully submitted, I \ . VERIFICATION We verify that the statements made in the foregoing document are true and correct. We understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. $~ David Firestone Date: zit-leG dry~ :{;di;];u. Laina Firestone Date: d-;;20S CERTIFICATE OF SERVICE I, DIANE G. RADCLIFF, ESQUIRE, hereby certify that on February J., 2005, I served a true and correct copy of the foregoing Petition upon Plaintiff's Attorney by mailing same by first class mail, postage prepaid, addressed as follows: Gary L. Kelley, Esquire 1119 North Front Street Harrisburg, PA 17102 i EXHIBIT "A" Plaintiffs' Custody Complaint B1/27/2085 13:09 71 72485573 PROTHONOTARY C LONG PAGE 01/03 R. KIRK and BETSY FIRESTONE, (Paternal Gmndparents) Plaintiffs v. IN THE COURT 0.1<' COMMON PLEAS CUMBERLAND COUNTY, pENNSYLV ANTA NO. O~- IS';)... Co~L~0Ll CIVIL ACTION - CUSTODY DA VJD alld LAlNA FIRESTONE, (Natural Parents) Defendants COMPLAINT BY PATERNAL GRANDPARENTS FOR VISITATION/PERIODS OF ALTERNATING PHYSICAL CUSTODY AND NOW, comes the Plaintiffs, R. Kirk and Betsy Firestone, by and through their attorney. Gary L. Kelley, and file this custody complaint, and in support thereof, respectfully aver as follows: ,. Plaintiffs are R. Kirk and Betsy Firestone who reside at 729 Hilltop Drive, New Cumberland, Pennsylvania 17070. 2. Defendants are David and Laina Firestone who reside at 540 Coolidge Street, New Cumberland, Pennsylvania 17070. 3. Plaintiffs seek visitation/periods of altemating physical custody of the following children: Name P rescn t resi d ell ce Age David K. Firestone, Jr. Kahley Firestone 540 Coolidge Street New Cumberland DOB 517/93 DOB 11/5196 The children were born of the marriage. The children are presently in the custody of Defendants 4. During the past two years, the children have resided with the following persons and at the following addresses: 01/27/2005 13:09 71 72405573 PROTHONOTARY C LONG PAGE 02/03 Persons Addresses Dates Defendants 540 Coolidge Street Since birth New Cumberland 5. The mother of the children is a listed Defendant She is married to the father of the children, the other listed Defendarlt 6. The relationsbip of Plaintiffs to the child is that of paternal grandmother and grandfather. Plaintiffs currently reside with the following persons: Name Relationship NfA 7. The rclationship of Defendants to the children IS that of father and mother. Defendants currently resides with the following persons: Name Relationship David Firestone Kabley Firestone Son Daughter 8. Plaintiffs have not participated as a party or witness, or in another capacity, in other litigation concerning the custody of the children in thi.s or another court Plaintiffs have no irlformation of a custody proceeding concerning the children pending in a court of tbis Commonwealth Plaintiffs do not know of a person not a party to the proceedings who has physical custody of the children or who claims to have custody or visitation nghts with respect to the children. 9. The best interest and permanent welfare of tile children will be served by granting the rehef requested because; Plaintiffs are fit granparentsparents. 01/27/2005 13:09 71 72405573 PROTHONOTARY C LOI-.JG PAGE 03/03 The children see Plaintiffs as a source of love and affection. Granting reasonable periods of visitaion/altematmg physical custody to the Plaintiffs is In the best intersts of the minor children Each parent whose parental rights to the child which bas !lot been terminated and the person who has physical custody of the child have been named as parties to this action. WHEREFORE, Plaintiffs respectful1y request that this Honorable Court grant reasonable periods of visitation/alternating physical custody to Plaintiffs. Respectfully submitted, ....' (~~? ,:: ~:~:) c....1. ~; 1'''''\") t:-~-:1 , (..) o -n en p..) ~ () 1: p ~ .......... '" ~ ~ 0 C' ~ ,.' () \ ~. ~ '" (;_"? 0 ~:'~';:; ~n ~, :-1 r~.t -r C') j ~,:I ~\] I Co) :::1" - ,." -~:;P:J , ; I i'...} !* ':::j () ;,11'1 .\ (j'1 t,) 01/27/2005 13:B9 71 724B5573 PROTHONOTARY C LONG PAGE B3/03 The children see Plaintiffs as a source of love and affection. Granting reasonable periods of visitaion/altemating physical custody to the Plaintiffs is 10 the best intersts of the minor children. Each parent whose parental nghts to the child which has not been terminated and the person who has physical custody of the child have been named as parties to this action. WHEREFORE, Plaintiffs respectfully request that this Honorable Court grant reasonable periods of visitation/alternating physical custody to Plaintiffs. Respectfully submitted, R. KIRK and BETSY FIRESTONE, (Paternal Grandparents) PENNSYLVANIA Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, v. NO. 05-152 CIVIL TERM DAVID and LAINA FIRESTONE, (Natural Parents) Defendants CIVIL ACTION - CUSTODY MOTION TO VACATE RULE RETURNABLE AND NOW, come the Plaintiffs, R. Kirk and Betsy Firestone, by and through their attorney, Gary L. Kelley, and respectfully Petition this Honorable Court as follows: I. On or about January 10,2005, Plaintiffs filed a complaint for visitation/periods of alternating physical custody of their grandchildren. 2, In response to the Complaint, a conciliation conference was scheduled for February 9,2005 at 8:30 AM before Dawn Sunday, Esq. 3. Subsequently, the undersigned was notified that Diane G. Radcliff, Esq. had entered her appearance on behalf of the Defendants. 4. On or about February I, 2005, counsel learned that Attorney Radcliff intended to file a Petition For Special Relief wherein she intended to raise the issue of standing and failure to plead with specificity. 5. In response, counsel sent a letter to counsel informing her that pursuant to precedent that the Plaintiffs, the paternal grandparents, had automatic standing to file a complaint for custody and, that the issues which she intended to raise under Section 5313(b) subsections 1, 2, and 3, were questions of fact to be determined by a court. A true and correct copy of this letter is attached hereto as Exhibit" A." 6. Counsel further noted that the issues which Attorney Radcliff intended to raise were improperly raised by a Petition For Special Relief and should be raised by preliminary objection. 7. By a letter dated February 1, 2005 and in response to the undersigned's letter, opposing counsel acknowledged that she would be filing preliminary objections. A true and correct copy of Attorney Radcliff's letter is attached hereto as Exhibit "B." 8. On February 3, 2005, counsel learned that Attorney Radcliff had filed a Petition For Special Relief, Or In The Alternative, For Leave Of Court To Take Depositions Of Plaintiffs with a Rule Returnable for a hearing scheduled for February 11,2005 at 9:30 AM. 9. In her Petition, it would appear that Attorney Radcliff is raising the issues of standing, insufficient specificity or insufficient legal specificity as bases for her Petition. 10. Pennsylvania Rule Of Civil Procedure 1028 addresses preliminary objections. 11. Rule 1028(a) provides, inter ali!!, that standing and insufficient specificity or insufficient legal specificity of pleading shall be raised by preliminary objection. See Rule 1028(a)(2), (4), and (5). 12. Rule 1032(a) of the Pennsylvania Rules Of Civil Procedure provides in relevant part that "A party waives all defenses and objections which are not presented either by preliminary objection, answer, or reply.. " 13. Said objections should be raised by preliminary objection or they will be deemed waived. ]4. The Pennsylvania Rules Of Civil Procedure do not provide for raising the issues which Attorney Radcliff raised in her Petition through the filing of a Petition For Emergency Relief 15. Attorney Radcliff further argues in her Petition that the Plaintiffs, the paternal grandparents, are unable to establish certain facts, indeed, the requisites set forth at 23 Pa.C.S. Section 5313(b)(1), (2), and (3). 16. Counsel has indicated to Attorney Radcliff that such requisites are facts to be determined by a trial court See Exhibit "A." 17. The Cumberland County Local Rules provide for the orderly progression of a custody complaint 18. The Rules provide, inter alia, that a custody action shall be commenced by the filing of a custody complaint and further provide that the initial step in a custody action shall be a conciliation conference held before a conciliator of the local bar. 19. Such Rules have been established to aid in the orderly progression of custody complaints and to aid in the Commonwealth's interest in resolving such matters prior to trial 20. Absent such rules and requirements, the courts would be backlogged with custody actions given the tremendous number of filings. 21. Hence, disagreements of fact are to be determined after a conciliation and during the course of a trial. 22. Merely because opposing counsel alleges that Plaintiffs are unable to establish certain facts, opposing counsel should not be able to, in effect, direct file with this Honorable Court and circumvent the intent of the Local Rules and the Commonwealth's interest in the orderly resolution of custody complaints. 23. As was previously set forth, opposing counsel may file preliminary objections should she believe that Plaintiffs' Complaint is legally defective. 24. Opposing counsel has further requested, in the alternative, that she be permitted to take the depositions of the Plaintiffs prior to a conciliation conference. 25. The Cumberland County Local Rules provide for the orderly progression of a custody complaint as previously set forth. 26. The Rules provide, inter alia, that a custody action shall be commenced by the filing of a custody complaint and further provide that the initial step in a custody action shall be a conciliation conference held before a conciliator of the local bar. 27. Such Rules have been established to aid in the orderly progression of custody complaints and to aid in the Commonwealth's interest in resolving such matters prior to trial 28. Neither the Cumberland County Local Rules nor the Pennsylvania Rules Of Civil Procedure provide for the taking of depositions prior to a conciliation conference. 29. Counsel's request undermines the integrity of the Local Rules. 30. Aside from apparently alleging "inconvenience," opposing counsel has not set forth any emergency basis for this Honorable Court to deviate from standard practice as set forth by the Pennsylvania Rules Of Civil Procedure and the Cumberland County Local Rules. 31. All litigation by its very nature is inconvenient to one or both parties in an action and, it is arguable whether depositions are less inconvenient or less expensive than a simple conciliation conference in which children are not required to attend. 32. Counsel has failed to follow the Pennsylvania Rules of Civil Procedure regarding the raising of certain issues by preliminary objection. 33. By failing to appropriately raise the issues of standing, insufficient specificity or insufficient legal specificity of pleading by preliminary objection, opposing counsel has waived any objections to these issues in this matter. 34. Assuming arguendo that opposing counsel has appropriately raised these issues, which is specifically denied, Rule 1028 subsections c, d, and e of 23 Pa.C.S. provide a remedy for the Plaintiffs to cure a defective pleading. 35. Opposing counsel's Petition is not in conformance with the Cumberland County Local Rules in that counsel is attempting to "direct file" a custody action with this Honorable Court and avoid the conciliation process. 36. It is in the best interests of justice that Defendants' Petition be denied and that this Honorable Court's Rule dated February 3,2005 be vacated. WHEREFORE, based upon all of the foregoing, the Plaintiffs respectfully request that this Honorable Court's Order dated February 3, 2005 be vacated and the conciliation conference scheduled for February 9, 2005 at 8:30 AM continue as scheduled. Respectfully submitted, 1 R. KIRK and BETSY FIRESTONE, (Paternal Grandparents) Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENN. v. NO. 05-152 CIVIL TERM DAVID and LAINA FIRESTONE, (Natural Parents) Defendants CIVIL ACTION - CUSTODY CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of Plaintiff Motion To Vacate Rule Returnable on February 4, 2005 by US Mail, postage prepaid, upon counsel for Defendants addresses as follows: Diane G. Radcliff, Esq. 3448 Trindle Road Camp Hill, PA 17011 ~ . eley II> o. 46 01 1119 North Front Street Harrisburg, PA 17102 (717) 238-1484 Attorney For Defendant Law Offices of Gary L. Kelley 1119 North Front Street Harrisburg, Pennsylvania 17102 (717) 238-1484 Fax (717) 238-1761 February 1, 2005 Diane G. Radcliff, Esq. 3448 Trindle 'Road Camp Hill, PA 17011 VIA FACSIMILE TRANSMISSION TO 975-0697 Re: Firestone v. Firestone Dear Diane: I just received your packet this morning after I sent my earlier letter. The proper format for attacking the complaint is by preliminary obj ection: I informed you earlier that the grandparents have automatic standing and that the requisites set forth at 5313(b)l, 2, and 3 are facts to be determined a trial court. If you file your Petition, I will seek counsel fees for delay, for the fact that I placed you on notice regarding standing and the requisites, and for filing a petition rather than preliminary objections in accordance with the Rules of Civil Procedure and the Cumberland County local rules. Thank you for your attention to this matter. cc: Kirk and Betsy Firestone '-. - ... F~B-01-2005 12:23 D I AI.IE RADell FF 717 975 0697 P.02/02 DIANE G. RADCLIFF, ESQUIRE '" 3448 Trindle Road, Camp Hill, PA 17011 Phone: 717-737-0100 Fax: 717.975-0697 E-mail: dianeradcliff@comcast.net February 1, 2005 Gary L. Kelley, Esquire 1119 North Front Street Harrisburg, PA 17102 Re: R. Kirk and Betsy Firestone vs. David and Laina Firestone Cumberland County Custody Action # 05-15Z Dear Gary: I am in receipt of your last letter. I already changed my petition to Preliminary Objections. Let us assume for the sake of argument, that I do not file anything and let this case proceed to trial. Please advise me of the facts under which your clients are entitled to custody or visitation under 23 Pa.C.S.A. Sections 5311.5313 or any other prOVision of the law. The RM v. Baxter case you cited still provides that the legislature's conferraL of automatic standing does not effect the evidentiary burden of proving the claim on the merits. To me that means these grandparents must be able to prove facts that brings them within the provisions of23 Pa.C.S.A. Sections 5311-5313. If they cannot do so they are Just wasting everyone's time and money. if you can provide those facts to me, I might be willing to change my position. Very truly yours, \ ~( DGRrdr co: David and Laina Firestone rile TRANSMITTED BY FAX ONLY r:-',,\ ro',) c..:.'" c.~) ~..rl -q r'~"\ CD I ,,- "0 J'': C,) ,""J' ({) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA R. KIRK AND BETSY FIRESTONE, NO. 05-152 CIVIL TERM Plaintiff VS. DAVID AND LAINA FIRESTONE, CIVIL ACTION - LAW Defendant IN CUSTODY PRAECIPE FOR ENTRY OF APPEARANCE To the Prothonotary: Enter my appearance on behalf of David and Laina Firestone. Papers may be served at the address set forth below: Date: January 27, 2005 Diane G. Radcliff, Esquire I.D. No. 32112 3448 Trindle Road Camp Hill, PA 17011 (717) 737-0100 Fax: (717) 975-0697 '~ '--' c::J C) '2j:~ ::"i"l c_ ~1;;' ':.l.; 1'.' CJ C,J c.:? 0" IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA R. KIRK AND BETSY FIRESTONE, NO. 05-152 CIVIL TERM Plaintiff VS. DAVID AND LAINA FIRESTONE, CIVIL ACTION - LAW Defendant IN CUSTODY NOTICE TO PLEAC~ TO: R. Kirk Firestone and Betsy Firestone, Plaintiffs/Grandparents Gary L. Kelley, Esquire 1119 North Front Street Harrisburg, PA 17102 Attorney for Plaintiffs/Grandparents You are hereby notified to file a written response to the endorsed New Matter within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully submitted, \ F, ESQUIRE ( - 1 - IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA R. KIRK AND BETSY FIRESTONE, NO. 05.152 CIVIL TERM Plaintiff VS. DAVID AND LAINA FIRESTONE, CIVIL ACTION - LAW Defendant IN CUSTODY ANSWER WITH NEW MATTER Defendants, David and Laina Firestone, by their attorney, Diane G. Radcliff, Esquire, and file this Answer with New Matter to Plaintiffs' Complaint for Visitation as follows: ANSWER 1. Admitted. It is admitted that the Plaintiffs/Grandparents, R. Kirk and Betsy Firestone, reside at 729 Hilltop Drive, New Cumberland, Pennsylvania 17070. 2. Admitted. It is admitted that the Defendants/Parents, David and Laina Firestone, reside at 540 Coolidge Street, New Cumberland, Pennsylvania 17070. 3. Admitted. It is admitted that Plaintiffs/Grandparents are seeking visitation/periods of alternating physical custody of the following children: David K. Firestone, Jr., DOB 5/7/93 and Kahley Firestone, DOB 11/5/96 4. Admitted. It is admitted that during the past two (2) years, and since birth, the Children have resided with the Defendants/Parents at 540 Coolidge Street, New Cumberland, Pennsylvania. 5. Admitted. It is admitted that the mother of the Children is a listed Defendant and that she is married to the father of the Children, the other listed Defendant. 6. Admitted. It is admitted that the relationship of Plaintiffs/Grandparents to the Children is that of paternal grandmother and grandfather, and that no other persons - 2 - reside with Plaintiffs/Grandparents. 7. Admitted. It is admitted that the relationship of Defendants/Parents to the children is that of father and mother and that Defendants/Parents reside with the children, David and Kahley Firestone. 8. Admitted. It is admitted that the parties have not participated as a party or witness, or in another capacity, in other litigation concerning custody of the children in this or another court. It is further admitted that Plaintiffs/Grandparents have no information of a custody proceeding concerning the children pending in a court of this Commonwealth. It is further admitted that Plaintiffs/Grandparents do not know of a person not a party to the proceedings who have physical custody of the Children or who claim to have custody or visitation rights with respect to the Children. 9. Admitted in Part and Denied in Part. It is specifically denied that the best interest and permanent welfare of the Children will be served by granting the relief requested because: . It is specifically denied that the Plaintiffs/Grandparents are fit grandparents. . It is specifically denied that the Children see Plaintiffs/Grandparents as a source of love and affection. ON THE CONTRARY AND BY WAY OF FURTHER ANSWER, it is averred that the Children do not see Plaintiffs/Grandparents as a source of love and affection since the Children have not seen the Plaintiffs/Grandparents for a period of at least five(5) years and have not had, and currently do not have, any relationship with Plaintiffs/ Grandparents. . It is specifically denied that granting reasonable periods of visitation/alternating physical custody to the Plaintiffs/Grandparents is in the best interests of the minor children. ON THE CONTRARY AND BY WAY OF FURTHER ANSWER, it is averred that: A. Plaintiffs/Grandparents are not entitled to any custody or visitation rights because they cannot prove the merits of any such claim under 23 Pa.C.S.A. Sections 5311-5313. Custody and visitation rights for grandparents are a creation of statute, and since Plaintiffs/Grandparents cannot prove their right to such rights under the foregoing statute, their claim to custody and/or - 3 - visitation must be denied. B. It is not in the Children's best interest to have any relationship with Plaintiffs/Grandparents or to grant them custody or visitation rights based on the fact that it is a fundamental parental right to decide who should have a relationship, visitation or custody of the Children and the Defendants/Parents have decided that such relationship, visitation or custody with the Children is not in their best interests. C. It is not in the Children's best interest to have any relationship with Plaintiffs/Grandparents or to grant them custody or visitation rights based on the lack of relationship between the Children and Plaintiffs/ Grandparents. D. It is not in the Children's best interest to have any relationship with Plaintiffs/Grandparents or to grant them custody or visitation rights based on the animosity between Defendants/Parents and Pla intiffs/ Grandparents. E. It is not in the Children's best interest to have any relationship with Plaintiffs/Grandparents or to grant them custody or visitation rights based on their negative and inappropriate actions towards the Children and the Defendants/Parents. It is admitted that each parent whose parental rights to the Children has not been terminated and the person who has physical custody of the Children has been named as parties to this action. WHEREFORE, Defendants/Parents respectfully request this Honorable Court to deny Plaintiffs/Grandparents request for custody or visitation rights and to award Defendants/Parents reasonable counsel fees and costs. NEW MATTER 10. The Answers set forth in Paragraphs 1 through 9 herein are incorporated by reference hereto, the same as though fully set forth at length. 11. Plaintiffs/Grandparents are the parents of David Firestone, one of the - 4 - Defendants/Parents, and the grandparents of the Children. 12. The right to visitation, partial custody or custody for Grandparents is governed by statute, to wit, 23 Pa.C.S.A. Sections 5311 though 5313 which provide: 5311. When parent deceased. If a parent of an unmarried child is deceased, the parents or grandparents of the deceased parent may be granted reasonable partial custody or visitation rights, or both, to the unmarried child by the Court upon a finding that partial custody or visitation rights, or both, would be in the best interest of the child and would not interfere with the parent-child relationship. The Court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application. 5312. When parents' marriage is dissolved or parents are separated. In all proceedings for dissolution, subsequent to the commencement of the proceeding and continuing thereafter or when parents have been separated for six months or more, the Court may, upon application of the parent or grandparent of a party, grant reasonable partial custody or visitation rights, or both, to the unmarried child if it finds that visitation rights or partial custody, or both, would be in the best interest of the child and would not interfere with the parent-child relationship. The Court shall consider the amount of personal contact between the parents or grandparents of the party and the child prior to the application. S 5313. When grandparents may petition (a) Partial custody and visitation.--If an unmarried child has resided with his grandparents or great-grandparents for a period of 12 months or more and is subsequently removed from the home by his parents, the grandparents or great- grandparents may petition the Court for an order granting them reasonable partial custody or visitation rights, or both, to the child. The Court shall grant the petition if it finds that visitation rights would be in the best interest of the child and would not interfere with the parent-child relationship. (b) Physical and legal custody.--A grandparent has standing to bring a petition for physical and legal custody of a grandchild. If it is in the best interest of the child not to be in the custody of either parent and if it is in the best interest of the child to be in the custody of the grandparent, the Court may award physical and legal custody to the grandparent. This subsection applies to a grandparent: - 5 - (1) who has genuine care and concern for the child; (2) whose relationship with the child began with the consent of a parent of the child or pursuant to an order of Court; and (3) who for 12 months has assumed the role and responsibilities of the child's parent, providing for the physical, emotional and social needs of the child, or who assumes the responsibility for a child who has been determined to be a dependent child pursuant to 42 Pa.C.S. CH. 63 (relating to juvenile matters) or who assumes or deems it necessary to assume responsibility for a child who is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or mental Wness. The Court may issue a temporary order pursuant to this section. 13. The parents of the Children are the Defendants/ Parents and both are living. 14. The Defendants/Parents are married to each other, and are not separated nor divorced. 15. The Children never lived with Plaintiffs/Grandparents for any period of time including, but not limited to, the required twelve (12) or more month period of time set forth in 23 Pa.C.S.A. 5313(a). 16. It is not in the best interest of the Children not to be in the custody of either Parent and instead to be in the custody of the Plaintiffs/Grandparents. 17. Plaintiffs/Grandparents never assumed the role and responsibilities of the Children's parentis), nor provided for the physical, emotional and social needs of the Children for any period of time including, but not limited to, the required twelve (12) or more month period of time set forth in 23 Pa.C.S.A. 5313(b). 18. None of the Children was ever declared to be dependent child pursuant to 42 Pa.c.S. CH. 63 (relating to juvenile matters), and Plaintiffs/C,randparents never assumed the responsibility for a child who has been determined to be a dependent child pursuant to 42 Pa.C.S. CH. 63 (relating to juvenile matters). 19. The Children are not substantially at risk due to parental abuse, neglect, drug or alcohol abuse or mental illness and Plaintiffs/ Grandparents never assumed nor deemed - 6 - it necessary to assume responsibility for a child who is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or mental illness 20. Defendants/Parents and Plaintiffs/Grandparents have no relationship with each other. 21. Plaintiffs/Grandparents have had no contact with the Children for at least the last five (5) years. Prior to five (5) years ago, Plaintiffs/Grandparents only saw the Children occasionally, and then only in the presence of one of the Defendants/Parents. 22. Plaintiffs/Grandparents have had no relationship with the Children for the last five (5) years. 23. This is a frivolous lawsuit undertaken and maintained by Plaintiffs/Grandparents with full knowledge of the provisions of 23 Pa.C.S.A. 5311 though 5313 and full knowledge that they did not meet the statutory criteria to claim custody or visitation rights. 24. Defendants/Parents asked Plaintiffs/Grandparents to withdraw this action voluntarily so as to avoid the burden of the unnecessary time and expense of defending this action, and Plaintiffs/Grandparents refused to consent to the same. 25. Defendants/Parents have incurred and will hereafter incur substantial attorneys fees in defending this custody action and claim is made therefor. WHEREFORE, Defendants/Parents respectfully request this Honorable Court to deny Plaintiffs/Grandparents request for custody or visitation rights and to award Defendants/Parents reasonable counsel fees and costs. Respectfully submitted, ~~QUIJ ( 12 3448 Trindle Road Camp Hill, PA 17011 (717) 737-0100 Attorney for Defendants/Parents - 7 - VERI FICA TION We verify that the statements made in the foregoing document are true and correct. We understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. ~~ David Firestone Date: z-;'~~~ ~ t; ( !" -.1 Cj"\~".'U~ Lain Flrestone Date: c?- ;;'.. -() ~)~ - 8 - CERTIFICATE OF SERVICE I, Diane G. Radcliff, Esquire, hereby certify that on February d. , 2005, I served a true and correct copy of the Answer and New Matter upon Gary Kelley, Attorney for the Plaintiffs, by mailing same by first class mail, postage prepaid, addressed as follows: Gary L. Kelley, Esquire 1119 North Front Street Harrisburg, PA 17102 Respectfully submitted, - 9 - / C') .''\"! 'v-' 1 CJ , , ()'l "" FES 0 3 200~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA R. KIRK AND BETSY FIRESTONE, NO. 05-152 CIVIL TERM Plaintiff VS. DAVID AND LAINA FIRESTONE, CIVIL ACTION - LAW Defendant IN CUSTODY RULE AND NOW this ,-3~ day of 6lJL/}/{/lA~ within Petition, it is hereby ordered that: , 200~1, upon consideration of the A Rule is issued upon the Respondents, R. Kirk Firestone and Betsy Firestone, to show cause why the Petitioners, David Firestone and Laina Firestone, is not entitled to the relief requested in the within Petition. Rule Returna?le at a hearing to be held on the l/rI day of ~--1 /J// /l ..1 ~ ' 2005, at q. 30 o'clock ~m. in Courtroom if of the Cum rland County Courthouse, Carlisle, PA . Pending the hearing or decision by this Court all action or proceedings in this matter shall be stayed. BY THE COURT: J. Distribution to: Attorney for Plaintiffs: Gary L. Kelley, Esquire, 1119 N. Front Street, Harrisburg, PA 17102 .-?1 ",,, t ~/=>- Attorney for Defendants: Diane G. Radcliff, Esquire, 3448 Trindle Road, Camp Hill, PA 17011 ~Co-fr~ ~~ 02/3/g->' 'n :,:;:! (.A ~ '" R. KIRK and BETSY FIRESTONE, (Paternal Grandparents) Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA v. NO. 05-152 CIVIL TERM DAVID and LAINA FIRESTONE, (Natural Parents) Defendants CIVIL ACTION - CUSTODY ORDER AND NOW, this Y day of February. 2005, upon consideration of Plaintiffs' Motion To Vacate Rule Returnable, is hereby ORDERED and DECREED that Plaintiffs' Motion is GR/"l.~ITCD and tl~" Geelel j.!lJ~ed Feerliaf)' 3) 2,0(15 A1TPt"tlng that 3 Rldp. Rptnrnasle at a Rearitlg ssher.hd~d fVl Fc-b1uary Ii, 10(')3 at 9.36 AlYJ. IS VALf\ll:~JJ. "]),e AI, If ]). BY THE COURT: . Ad I I /'1, 9; r c- R. KIRK FIRESTONE and BETSY FIRESTONE, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW 05-]52 CIVIL DAVID FIRESTONE and LAINA FIRESTONE, Defendants IN CUSTODY ORDER AND NOW, this /1' day of February, 2005, following conference with counsel in Chambers, leave is granted to plaintiffs to amend their complaint seeking primary physical and legal custody of their grandchildren. Pending same, hearing herein is continued generally. Both parties are authorized to engage in discovery with the understanding that a conciliation conference shall not be scheduled less than sixty (60) days following the filing of any amended petition. In the event that the petition of the grandparents for custody is withdrawn prior to engaging in discovery, the court will give no consideration to an award of counsel fees. BY THE COURT, ~y Kelley, Esquire For the Plaintiffs ~ane G. Radcliff, Esquire For the Defendants ~~4~ K7(. Hess, J. > ~ 02-11-05 :rlm ,"~ ."~ \. / . \ vV .! , I : P"::.~ R. KIRK and BETSY FIRESTONE, (Paternal Grandparents) PENNSYLVANIA Plaintiffs v. DAVID and LAINA FIRESTONE, (Natural Parents) Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, NO. 05-152 CIVIL TERM CIVIL ACTION - CUSTODY PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: Please discontinue the above-captioned matter. eley 680l 1119 rth Front Street Harrisburg, PA 17102 (717) 238-1484 Attorney for Plaintiffs t9 ~~ ~Q ~. ~~ >z, 6" '""" ~ "iJl ...., -; <!? ~ - MAR 11 2005 pi" R. KIRK AND BETSY FIRESTONE Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. 05-152 CIVIL ACTION LAW DA VII> AND LAINA FIRESTONE Defendant IN CUSTODY ORDER AND NOW, this 10th day of March,2005 , the conciliator, being advised by counsel that the Custody Complaint has been withdrawn in this matter, hereby relinquishes jurisdiction. FOR THE COURT, Dawn S. Sunday, Esquire Custody Conciliator