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HomeMy WebLinkAbout05-0947 STEVEN P. KISHBAUGH, SR., Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA v. ; No. Of; - q'-t7 CL~1 <--r~ GLENDA A. KISHBAUGH-POLLILO, Defendant : CIVIL ACTION-LAW : IN CUSTODY COMPLAINT IN CUSTODY AND NOW, the Plaintiff, Kenneth L. Kreitzer, by and through his attorney, Jeanne B. costopoulos, Esquire, makes the following Complaint in Custody: 1. The Plaintiff, Steven P. Kishbaugh, Sr., is an adult individual who currently resides at 7005 Salem Park Circle, Mechanicsburg, Cumberland County, Pennsylvania, 17050. 2. The Defendant, Glenda A. Kishbaugh-Pollilo, is an adult individual who currently resides at 223 East Main Street, Shiremanstown, Cumberland County, Pennsylvania, 17011. 3. There is one dependant child from the previous marriage of Plaintiff and Defendant, namely, Steven P. Kishbaugh, II, born March 18,1996. 4. The Plaintiff seeks primary physical custody of the following child: Name Present Residence Age Steven P. Kishbaugh, II 7005 Salem Park Circle Mechanicsburg, P A 8 'l2 years DOB 3/18/1996 and* 223 East Main Street Shiremanstown, P A *The parties share week on/week off custody of the child. 5. The child, Steven P. Kishbaugh, II, born March 18, 1996, is presently in the custody of both of his parents who share physical custody on a week-onlweek-offbasis pursuant to an agreed upon Order of Court dated August 14, 2003, entered at docket no. 5327 CV 2001 in the Court of Common Pleas of Dauphin County, attached hereto as Exhibit A. 6. Since birth, the child has resided with at the following addresses with the people stated: Name Address Dates Father and Mother Susquehanna Tsp. birth until Dauphin County, PA October 1998 Father and Mother 2975 Wilson Parkway October 1998 Harrisburg, P A February 2000 Mother 2975 Wilson Parkway February 2000 Harrisburg, P A October 2001 Mother S. Market Street October 2001 Jonathan Pollilo Mechanicsburg, P A August 2002 Davon Williams Mother Louisa Lane August 2002 Jonathan Pollilo Mechanicsburg, P A August 2003 Mother* * * 16 E. Front Street August 2003 Jonathan Pollilo Shiremanstown, P A June 2004 223 E. Main Street June 2004 Shiremanstown, P A to present F ather* * * 518 Boston Court August 2003 Amber Kishbaugh Mechanicsburg, P A May 2004 7005 Salem Park Circle May 2004 Mechanicsburg, P A to present * * * The parties alternated custody weekly beginning August of 2003 7. The natural mother of the child is Glenda Kishbaugh-Polillo, Defendant, currently residing at 223 East Main Street, Shiremanstown, Cumber/and County, Pennsylvania, 17011. Defendant resides with her husband, Jonathan Pollilo. 8. The natural father of the child is Steven P. Kishbaugh, Sr., Plaintiff, currently residing at 7005 Salem Park Circle, Mechanicsburg, Cumberland County, Pennsylvania, 17050. Plaintiff resides with his wife Amber Kishbaugh. 9. Plaintiff and Defendant are divorced from each other and the child was bom out of wedlock. 10. Plaintiff previously filed a custody action against Defendant in the Dauphin County Court of Common Pleas at docket number 5327 CV 2001. A true and correct copy of the most recent Order of Court dated August 14,2003, has been attached as Exhibit A. The parties have not previously been before a judge regarding custody of the subject child as they agreed upon all prior orders. Father has resided in Cumber/and since May of 2004. Mother has resided in Cumber/and County since November of 2001. Father has resided in Cumber/and County since May of2002. 11. Other than the Dauphin County case referenced in paragraph 13 above, Plaintiff has not participated as a party or witness, or in another capacity, in other litigation concerning the custody of the child in this or another court. 12. Plaintiff does not know of a person not a party to the proceedings who has physical custody of any of the child or claims to have physical custody or visitation rights with respect to the child. 13. The best interests and peIlllanent welfare of the child will be served by granting the relief requested because: (a) Father is able to provide for the child's current emotional and psychological needs. (b) The child suffers from substantial emotional problems when in the custody of Mother. (c) The child has behavioral issues when in Mother's custody but not when in Father's custody. Most recently, the child purposely scratched himself on the forehead causing bleeding cuts while in Mother's custody. Father reports no behavioral issues when in his custody and the school reports no behavioral issues when the child is at school. (d) Mother has a history of dishonesty with the child's medical care providers which is ongoing and detrimental to the child's well-being. (e) Mother has a history of instability and the child has trouble maintaining friendships while in Mother's custody because she moves too often for him to make lasting friendships with anyone. (f) The child has attended school in Father's school district for the past two years and perfoIllls better in school during the weeks Father has custody. During the weeks Mother has custody, the child does not complete homework assignments, is often late for school, and falls asleep in class. 14. Each parent whose parental rights to the child have not been teIlllinated 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 a right to custody or visitation of the child to be given notice of the pendency of this action and the right to intervene. WHEREFORE, Plaintiff respectfully requests that he be granted primary physical custody of his son, subject to periods of partial custody with Defendant. Respectfully submitted, BY: ::? .... '. /' --"'" Jeanne B. costopoulos, Esquire ATTORNEY FOR PLAINTWF 5000 Ritter Road, Suite 202 Mechanicsburg, P A 17055 Phone: (717) 790-9546 PA Supreme ct. ID No. 68735 DATED: '[ /1 (CS STEVEN P. KISHBAUGH, SR., Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. : No. GLENDA A. KISHBAUGH-POLLILO, Defendant CIVIL ACTION-LAW IN CUSTODY VERIFICATION I, Steven P. Kishbaugh, Sr., hereby verifY and state that the statements made in the foregoing Complaint in Custody are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of I8 Pa. C.S. ~4904, relating to unsworn falsification to authorities. Date: D- It /~ ~/ Signature: - I' .!l/~ (J; 'Jl,JLf/ Steven P. Kishbaugh, Sr. '. ';' ,. o . , STEVEN P. KISHBAUGH, SR., Plaintiff v. : IN THE COURT OF COMMON PLEAS : DAUPHIN COUNTY, PENNSYL VANIA . ~ . 0 ~ : No. 5327 CV 2001 Y ,.. c.: c '''0 c;-> ""'C::c. ~ l""':j~ .;:- %- -;%.0 'PC,,:. (... -;;? .-\ --:: GLENDA A. KISHBAUGH, Defendant : CIVIL ACTION.. LAW : CUSTODY ...., $ s:- .. ::'~"')'."j :::, ::'i;\ ~:,.,::, ~.",. -1 \ ( J ~'..:;....... ,-,', (~ CJ.- :,:::,,..'nb< C.J' _ r:; __H..) .-) 'J.>"..qL.. ;0 -<. ORORR OF COTTRT / -. - '" AND NOW, this JJ- day of 2003, upon consideration of the within Petition to Enter Stipulation as an Order 0 ourt, the Petition is hereby granted. ~~E&)0r~lllam [8 BY THE COURT: '. J. Ill"if'!> ~ hua .!L dl ~N I hereby certify that the foregoing is a true and correct'']' 'ho 'riglnal tIled. ~1uJ~. ~ Prothonotary STEVEN P. KISHBAUGH, SR., Plaintiff ,...' : IN THE COURT OF COMMON PLR:A.S 6 : DAUPHIN COUNTY, PENNSYL V ~IA ~ . .." en "'O::x: _ fTlO;:; :;1:..... &:" :Z;C'l )7g :z: -I -< 0 U' v. No. 5327 CV 2001 GLENDA A. KISHBAUGH, Defendant CIVIL ACTION - LAW CUSTODY ~ - - .' PF.TITTON TO FNTRR STTPlTLA nON AS ORnF,R OF COlTRT AND NOW, come the parties, Steven P. Kishbaugh, Sr., and Glenda A. Kishbaugh, and respectfully request the following Stipulation to be entered as an order of court: WHEREAS the parties, Steven P. Kishbaugh, Sr. (the Father hereinafter) and Glenda A. Kishbaugh (the Mother hereinafter), have born to them one child, namely Steven P. Kishbaugh, II, born March 18,1996 (the Child hereinafter); and .' WHEREAS, the parties wish to enter into an agreement relative to custody, partial custody, and visitation of the child; and, WHEREAS, both parties have been provided an opportunity to review the Agreement with the counsel of their choice prior to signing. THEREFORE, in consideration of the mutual covenants, promises, and agreements as hereinafter set forth, and intending to be legally bound, the parties agree as follows: --0 ;0 00";0 -I.....f"'\ ::X:"'\C'l 0-- fT\ :;:e"-- orn..~ -IO~ ',:P'-n...... ;0 -< 1. Legal Custody: The parties will share joint legal custody of the child. The parties agree that major decisions concerning their child, including, but not necessarily limited to, the child's health, welfare, education, religious training and upbringing shall be made by them jointly, after discussion and consultation with each other, with a view toward obtaining and following a harmonious policy in the child's best interests. Each party agrees not to impair the other party's rights to shared legal custody of the child. Each party agrees not to attempt to alienate the affections of the child from the other party. Each party shall notifY the other of any activity or circumstance concerning their child that could reasonably be expected to be of concern to the other. Day to day decisions shall be the responsibility of the parent then having physical custody. With regard to any emergency decisions, which must be made, the parent having physical custody of the child at the time of the emergency shall be permitted to make any immediate decisions necessitated thereby. However, that parent shall inform the other of the emergency and consult with him or her as soon as possible. In accordance with 23 Pa.C.S.A. ~5309, each party shall be entitled to complete and full information from any doctor, dentist, teacher, professional or authority and to have copies of any reports given to either party as a parent as authorized by statute. Both parents shall be listed as primary physical custodians of the child with all schools and doctors and shall have equal access to all of the child's school and medical information, The parties also specifically agree to the following with respect to shared legal custody of the child: (a) The child will attend Sporting Hill Elementary School and the school's YMCA after school program. (b) The child will attend school in the Cumberland Valley School District. Father shall not move from the Cumberland Valley School District until tbe child graduates from high schooL (c) Both parties as well as the child's stepparents are welcome and encouraged to attend the child's sports activities and parent/teacher conferences. (d) The parties agree that the child will no longer see his current primary , doctor; instead, the parties will jointly select a pediatrician. (e) The parties agree that the child will no longer see either his current psychologist or his current psychiatrist; instead, the parties will jointly select a new psychologist and a new psychiatrist to evaluate the child to determine if it is in the best interest of the child to be prescribed medication. Both parties shall be provided an opportunity to give his or her input prior to said doctor placing the child on any treatment plan that includes prescribed medication. (f) Neither party shall schedule a doctor appointment for the child without the prior knowledge and consent of the other party. (g) Both parties shall attend all doctor appointments for the child. Stepparents are also welcome and encouraged to attend such appointments. (h) All doctors and teachers will be provided a copy of the custody order. If any doctor refuses to cooperate with the terms set forth herein, including but not limited to giving both parties equal access to all medical records relating to the child, the parties shall jointly select an new doctor who will cooperate. (i) Both parties agree that family counseling should continue until as directed by the counselor and step-parents are strongly encouraged to attend any and all family counseling if deemed appropriate by the counselor. 2. Physical custody of the child shall be shared on an alternating weekly basis from Friday at 5:00 p.m. until the following Friday at 5:00 p.m. beginning with Father having custody of the child the first Friday following the execution of this Agreement. Therefore, the child shall have two primary residences: currently those residences are 'as follows: with Mother at 16 East Front Street, Apartment A, Shiremanstown, PA 17011 and with Father's at 518 Boston Court, Mechanicsburg, P A 17050. During the first eight (8) weeks of this Order only, the following provision shall also apply: a. Each party shall 'be entitled to one (l) weeknight of partial custody with the child during the other party's period of week long custody. This period of partial custody shall be from 5 :00 p.m. until 8:00 p.m. The parties shall discuss and agree upon the particular weeknight. If the parties cannot agree, the weeknight shall be on Wednesday evenings. 3. Mother shall claim the child as a dependant for tax purposes in odd-numbered years and Father shall claim the child as a dependant for tax purposes in even- numbered years. The parties agree to sign any necessary forms to effectuate the terms of this paragraph. 4. The parent with physical custody during any given period shall communicate in a prompt fashion with the other parent concerning the well being of their child, and shall appropriately notifY the other parent of any changes in health or educational progress. Each parent shall execute any and all legal authorizations so that the other parent may obtain information from the child's schools, physicians, psychologists, or other individuals concerning their progress and welfare. 5. Holidays: a. Thanksgiving, in odd-numbered years Father will have child from the day before Thanksgiving at 12:00 p.m. until Thanksgiving Day at 2:00 p.m. and Mother will have the child from Thanksgiving Day at 2:00 p.m. until the day after Thanksgiving at 2:00 p.m, In even numbered years, Mother will have the child from the day before Thanksgiving at 12:00 p.m. until Thanksgiving Day at 2:00 p.m. and Father will have the child from Thanksgiving Day at 2:00 p.m. until the day after Thanksgiving at 2:00 p.m. b. Christmas, in odd-numbered years, Father shall have the child for Segment A of the Christmas Holiday (Christmas Eve at 12:00 p.m. until Christmas Day at 2:00 p.m.) and Mother shall have the child for Segment B of the Christmas Holiday (Christmas Day at 2:00 p.m. until December 26th at 2:00 p.m.). In even-numbered years, Mother shall have the child for Segment A of the Christmas Holiday (Christmas Eve at 12:00 p.m. until Christmas Day at 2:00 p.m.) and Father shall have the child for Segment B ofthe Christmas Holiday (Christmas Day at 2:00 p.m, until December 26th at 2:00 p,m.). The , remainder of the christmaslNew Year's school break (December 26th at 2:00 p.m. until the day before school resumes at 6:00 p.m.) shall be equally divided between the parties with Father having the child for the first half of the break in odd years and the last half of the break in even years and Mother having the child for the last half of the break in odd years and the first half of the break in even years. c. Mother will have physical custody of the child on Mother's Day weekend. d. Father will have physical cllstody of the child on Father's Day weekend. e. Mother will have cllstody on even-numbered years and Father will have custody on odd-numbered years for the following holidays: Memorial Day holiday and weekend; Labor Day holiday and weekend. f. Father will have custody on even-numbered years and Mother will have custody on odd-numbered years for the following holidays: President's Day (from 9:00 a.m. until 6:00 p.m.); and ./uly 4th (from 9:00 a.m. until 10:30 p.m.). g. Easter, in even numbered years, Father will have custody on Easter from 12:00 p,m. the day before Easter until 2:00 p.m, on Easter Day and Mother will have custody from Easter Day at 2:00 p.m. until 2:00 p.m. the day after Easter. In odd numbered years, Mother will have custody on Easter from 12:00 p.m. the day before Easter until 2:00 p.m. on Easter Day and Father will have custody from Easter Day at 2:00 p,m. until 2:00 p.m. the day after Easter. h. The holiday schedule shall take precedence over the regular custody schedule. 6. The party obtaining custody shall provide the transportation from the other party's residence. 7. The parents shall organize ways for their child to maintain his friendships, extracurricular activities, and 'other special interests, regardless of which household he may be in. It is also suggested that toys, clothes, etc. not become matters of contention. Major gifts should be discussed and coordinated between the parents. 8, The parents shall permit and support the child's access to all family relationships. Special family events such as weddings, family reunions, family gatherings, funerals, graduations, etc. shall be accommodated by both parties with routine visitations resuming immediately thereafter. Each parent shall have the option of proposing time of date variations to the other parent when special recreational options or other unexpected opportunities arise. Each parent must confer with the other parent before arranging regularly occurring extracurricular activities for the child, which might interfere with regular visitation. 9. Each parent will exercise care in screening babysitting/child care providers. Each parent should have the right of veto over child care providers. The telephone numbers of these providers will be provided to both parents, Parents should provide one another with a phone number and address where the child may be contacted at all times whenever reasonably possible. 10. During any period of custody or visitation the parties to this Order shall not possess or use any controlled substance, nor shall they consume alcoholic beverages to the point of intoxication, nor smoke cigarettes inside the residence or vehicle. The parties shall likewise assure, to the extent possible, that other household members and/or houseguests comply with this prohibition. 11. Telephone Contact: Each parent shall be entitled to initiate one telephone call with the child per day while the child is with the other parent. The child may call either parent whenever he wishes without being impeded or listened to by the other parent. Each parent should be promptly and politely responsive to the other parent's telephone calls regarding the child. 12. Neither parent shall permanently relocate if the relocation would necessitate a change in the visitation schedule or if the relocation would result in a change of school for the child or exceed a fifty (50) mile radius without a minimum notice of ninety (90) days to the other parent. The ninety (90) day notice is designed to afford the parents an opportunity to renegotiate the custodial arrangements or to have the matter listed for a Court hearing. For the child's welfare, neither parent should consider moving very far from the other until the . child has reached adulthood, 13. No Conflict Zone: Each parent agrees not to attempt to alienate the affections of the child from the other and will make a special conscious effort not to do so. Both parents shall establish a no-conflict zone for the child and refrain from making derogatory comments about the other parent in the presence of the child and, to the extent possible, shall not permit third parties from making such comments in the presence of the child whether the child is sleeping or awake. Each parent shall speak respectfully of the other whether it is believed the other reciprocates or not. Each parental figure shall refer to the other by the appropriate role name such as Mom, Dad, your grandmother, etc. Each parent should agree to refrain from encouraging the child to provide reports about the other parent. Communication should always take place directly between parents, without using the child as an intermediary. 14, This Stipulation shall supersede all prior Court Orders, Stipulations, or Agreements. Any of the provisions of this Agreement may be modified or deleted upon mutual consent/agreement of both parties or upon Petition to the Court for Modification. WHEREFORE, the parties, intending to be legally bound, and with the desire that this Agreement be entered as an order of court, hereby set their hands and seals and the date of their acknowledgment. ?JA5~ f: ILJJ~.<-;j Steven p, Kishbaugh .dY-: . Je~e B. costopoulos, Esquire ~ /7 j,,) Date 7'/'8/03 Date )Jjp/J1~ J(~hb,1j~l- ~ Glenda 1. Kishbaugh . ~ " I { , /./. ~.. </,/~ / / ~ fi:~/ // ~ . 'B an Walk, Esquire '? / /;1 !D ~ Date &/;/07 Date TJG?~ t tt ~ _ ~ 00, ~ \) ~ ..c \Y If- ~ ~ -+- -L.. " " r n \...' ~ -'i' ~ -4 STEVEN P. KISHBAUGH, SR, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY . PENNSYLVANIA V. 05-947 CIVIL ACTION LAW GLENDA A. KISHBAUGH-POLLlLO DEFENDANT IN CUSTODY ORDER Of COURT AND NOW. Monday, February 28, 2005 , upon consideration 01' the attached Complaint, it is hereby directed that parties and their respective counsel appear before Dawn S. Sunday, Esq. . the conciliator, at 39 West Main Street, Mechanic~_urg, P~_}?05~_ on Wednesday, March lh~005 ___ at .1.0:30 AM for a Pre-Hearing Custody Conference. At such conference, an effort witl be made to resolve the issues. in dispute; or if this cannot be accomplished, to deline and narrow the issues to be heard by the court. and to enter into a temporary order. All children agc five or older may also be present at the conference. Failure to appear at the conference mav provide grounds for entry of a temporary or pennanent order. The court hereby directs the parties to furnish any ,md 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. Sunday. Esq. Custody Conciliator -f! The Court o["Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilites Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our omce. 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. YOL: SHOULD TAKE THIS PAPER TO YOUR ATTORNEY AT ONCE. IF YOU DO NOT HA VE AN ATTORNEY OR CANNOT AFFORD ONE. GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET l.EGAL HELP. Cumberland County Bar Assoeimion 31 South 13edford Street Carlisle, Pennsylvania J 7013 Telephone (717)249-3166 ~ ~ 7 ~/fty 41&7 )0 -8(" c . ~ ~ ;n~ .~<<, ~'Cle8ec ~p.~~~~s?sce v"'i'J l! ;Z Wd '07,. 9J:! )OO"l " -, ./ d MAR 2 9 2005 ,r-" t STEVEN P. KISHBAUGH, SR. Plaintiff IN THE COURT OF CqMMON PLEAS OF CUMBERLAND COUNT]Y, PENNSYLVANIA vs. 05-947 CNIL AC ION LAW GLENDA A. KISHBAUGH-POLLILO Defendant IN CUSTODY ORDER OF COURT AND NOW, this L(~ day of , 2005, consideration of the attached Custody Conciliation Report, it is ordered and di ected as follows: upon 1. The provisions of the custody stipulation signed by the Father on Au ust 7, 2003 and the Mother on August 11, 2003 and incorporated as an Order by the Dauphin Cou ty Court of Common Pleas on August 14, 2003 is hereby entered as an Order of this Court, as modi ed by the other provisions of this Order, pending completion of the custody evaluation and fi her Order of Court or agreement of the parties. 2. The parties shall submit themselves, their minor Child and any othe individuals deemed necessary by the evaluator to a custody evaluation to be performed by Debora Salem, LPC or other professional selected by agreement between the parties. The purpose of the e aluation shall be to obtain independent professional recommendations concerning ongoing custod arrangements which will best serve the needs and interests of the Child. All costs of the evaluation shall be equally shared between the parties. The parties shall contact the selected evaluator within 30 days of the date of this Order to schedule their initial sessions. The parties shall sign all authorizatio deemed necessary by the evaluator in order to obtain additional information pertaining to the Child. 3. Each party shall ensure that all telephone calls from the other parent shall be returned by the Child within one hour or within a reasonable time period under the circumst ces. 4. Paragraph I(i) and the specification of the parties' residences in Pro ision 2 of the stipulation are vacated. 5. Counsel for either party may contact the conciliator within 60 days freceipt of the evaluator's written custody recommendations to schedule an additional custo y conciliation conference, if necessary, -:,::;?~n~} B I :7, Hd 1- ~Jd~ SOUZ .. .r 6, This Order is entered pursuant to an agreement ofthe parties at a cU$ody conciliation conference, The parties may modify the provisions of this Order by mutual cobsent. In the absence of mutual consent, the terms of this Order shall control. cc: Jeanne B, Costopoulos, Esquire - Counsel for Sean M. Shultz, Esquire - Counsel for Mother ather ~c{6~ ], , II ... . STEVEN P. KISHBAUGH, SR. Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUN1Y, PENNSYLVANIA vs. 05-947 CIVIL AC ION LAW GLENDA A. KlSHBAUGH-POLLILO Defendant IN CUSTODY CUSTODY CONCILIATION SUMMARY REPOR r IN ACCORDANCE WITH CUMBERLAND COUNT RULE OF CIVIL PROCEDURE 1915.3-8, the undersigned Custody Conciliator submits the fo owing report: I. The pertinent information concerning the Child who is the subje t of this litigation is as follows: NAME CURRENTLY H CUSTODY OF DATE OF BIRTH Steven P. Kishbaugh, 11 March 18, 1996 Mother/Fat er 2, A conciliation conference was held on March 23, 2005, with the ollowing individuals in attendance: The Father, Steven P. Kishbaugh, Sr., with his counsel, Jeanne . Costopoulos, Esquire, and the Mother, Glenda A. Kishbaugh-Pollilo, with her counsel, Sean M. Shul z, Esquire. 3. The parties agreed to entry of an Order in the form as attached. I~ Ch (')- 'II ,CJrn "'i Date fl~~ jln Dawn S. Sunday, EsquireO Custody Conciliator STEVEN P. KISHBAUGH, SR Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 05-947 GLENDA A. KISHBAUGH-POLlLLO : Defendant CIVIL ACTION-LAW IN CUSTODY PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter my appearance on behalf of Defendant, Glenda A. Kishbau9h-Polillo, in the above matter. Papers may be served at the address set forth below. McNEES WALLACE & NURICK LLC /,- Dated: IIIIGIOS' PRAECIPE FOR WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: the above matter. Please withdraw my appearance on behalf of Defendant, Glenda A. Kishbaugh-Polillo, in BY~ l..- Sean M. Shultz, Esquire LD. No. 'lfJ'I'-/(" 19 Brookwood Avenue Suite 106 Carlisle, PA 17013 (717) 249-5373 Dated: I" l 0\ OS ~, '.~ ;:':';:1 ,.." ~;1-~ .-1 :>~ ;- ~ , D r:'? r',: , , STEVEN P. KISHBAUGH, SR. Plaintiff NO\! 2 1 2005 : ',' fY1/ IN THE COURT OF COMMON_,PLEASOFm CUMBERLAND COUNTY, PENNSYL VANIA vs. 05-947 CNIL ACTION LAW GLENDA A. KISHBAUGH-POLLILO Defendant IN CUSTODY ORDER OF COURT AND NOW, this ).. ~~ day of ,u ~ , 2005, consideration of the attached Custody Conciliation Report, it is ordered and directed as follows: upon .~. A Hearing"is schedulet!. in Court ~oom No.5 ofthe Cumberland County Courthouse on the JO'" day of ~, 20~ at e'~o'c1ock A. m" at which time testimony will be taken. For purposes ofthe hearing, the Father, Steven P. Kishbaugh, Sr., shall be deemed to be the moving party and shall proceed initially with testimony. Counsel for the parties shall file with the Court and opposing counsel a memorandum setting forth each party's position on custody, a list of witnesses who are expected to testify at the hearing, and a summary of the anticipated testirnony of each witness. These memoranda shall be filed at least ten days prior to the hearing date. 2. The custodial parent shall initiate, or ensure that the Child initiates, a telephone call to the non-custodial parent every Sunday, Tuesday and Thursday between 8:30 p.m. and 9:00 p.m. 3. The parties shall consult with each other prior to enrolling the Child in activities which take place during the other party's periods of custody. 4, All firearms at either party's household shall be appropriately stored and safeguarded to prevent access by the Child. 5. Neither party's spouse shall attend the Child's school conferences pending further Order of Court or agreement of the parties. Edward E. Guido J. cc: Jeanne B. Costopoulos, Esquire - Counsel for Father Paul J. Helvy, Esquire - Counsel for Mother ~ .,~ /J~J3o{ 0-. ,',':,1 , U" I,)j ZZ :Z 1'1 [7 ,I ",,) 2:1'J,,7 ,,<J \'-..'1 ~..IU ... STEVEN P. KISHBAUGH, SR. Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA vs. 05-947 CIVIL ACTION LAW GLENDA A. KISHBAUGH-POLLILO Defendant IN CUSTODY Prior Judge: Edward E. Guido CUSTODY CONCILIATION SUMMARY REPORT IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE 1915.3-8, the undersigned Custody Conciliator submits the following report: L The pertinent information concerning the Child who is the subject of this litigation is as follows: NAME DATE OF BIRTH CURRENTLY IN CUSTODY OF Steven (Stevie) P. Kishbaugh, II March 18,1996 MotherlFather 2, A custody conciliation conference was held on November 11, 2005, with the following individuals in attendance: The Father, Steven P. Kishbaugh, Sr., with his counsel, Jeanne B. Costopoulos, Esquire, and the Mother, Glenda Kishbaugh-Pollilo, with her counsel, Paul J, Helvy, Esquire. 3. This Court previously entered an Order in this matter on April 4, 2005 under which the provisions of the parties' custody stipulation (entered as an Order of the Dauphin County Court of Common Pleas on August 14, 2003) was incorporated into an Order of this Court. The parties were to obtain a custody evaluation, which they agreed would be performed by Deborah Salem. The Father's counsel requested a follow-up custody conciliation conference after the evaluation was complete, In her report, the custody evaluator recommended, among other things, counseling for the Mother, co- parenting counseling for both parties and a reassessment in June 2006. 4. The parties were unable to reach an agreement at the conference and the Father requested that a hearing be scheduled at this time. 5. The Father's position on custody is as follows: The Father believes that the current shared alternating weekly custody schedule should be modified so that he has primary physical custody of the Child. The Father believes that the evaluation process and results support his concern that the Mother has psychological problems which cause her to fabricate issues concerning the Child and relay information regarding the Child inaccurately to the Father and other professionals working with the Child. The Father identifies this problem as the source of conflict for the Child which interferes with the Child's relationship with the Father. The Father does not believe that co-parenting counseling would be effective as he feels the Mother is unwilling or unable to foster a relationship between the Child and the Father. The Father believes that any further delay in transferring primary custody to him would be detrimental to the Child. 6, The Mother's position on custody is as follows: The Mother indicated her willingness to obtain the counseling recommended in the evaluation and to continue the shared physical custody arrangement currently in effect. The Mother believes the shared arrangement is the best way to promote relationships with both parents for the Child. The Mother raised several concerns, mostly relating to the Child's safety, for discussion at the conference. Most of the Mother's concerns were satisfied simply by obtaining information from the Father. One of the concerns related to participation of the Father's wife at school conferences which the Mother perceives to be a major source of conflict. The Mother requests that the shared custody arrangement remain in place with the reassessment to be conducted in June 2006 as recommended by the evaluator. 7, The conciliator recommends an Order in the form as attached scheduling a hearing, establishing a schedule for telephone communications between the parents and the Child and precluding either stepparent from attending school conferences pending the hearing. It is anticipated that the hearing will require at least one-half to one full day as there may be substantial expert testimony. 8, Pending the hearing and further Order of Court or agreement of the parties, it is strongly recommended that the parties participate in the co-parenting counseling recommended by the evaluator. ;()1JVe~ Date I {,. ~o5 , D~ Custody Conciliator ~ STEVEN P. KISHBAUGH, SR., Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v, : No. 05-947 GLENDA A. KISHBAUGH-POLLILO, Defendant : CIVIL ACTION-LAW : IN CUSTODY PLAINTIFF'S MOTION FOR CONTINUANCE AND NOW COMES the Plaintiff, Steven P. Kishbaugh, Sr., by and through his attorney, Jeanne B. Costopoulos, Esquire, and files the following Motion for Continuance, respectfully representing as follows: I. A custody hearing is scheduled to take place on December 30, 2005 at 8:30 a.m. 2. Deb Salem performed an extensive custody evaluation and she is a material expert witness in this case. However, she will be in Nashville, Tennessee on December 30, 2005 and cannot provide testimony on that date. Ms. Salem assured undersigned counsel that if a new hearing date is obtained scheduled she will make sure she is available at that time to provide testimony. 3. Defendant's attorney, 1. Paul Helvy, Esquire, does not object to this request for continuance. WHEREFORE, Plaintiff respectfully requests this Honorable Court to continue the December 30, 2005 hearing until a date certain after January 3, 2006. RESPECTFULLY SUBMITTED: BY:'~ ...-----:> -- Jeanne B. Costopoulos, ~ ATTORNEY FOR PUJNTIFF ~ 3803 Gettysburg Road Camp Hill, PA 17011 Phone: (717) 920-2500 PA Supreme Ct. ID No. 68735 DATE: /Z;(Yi&s- J STEVEN P. KISHBAUGH, SR., Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : No. 05-947 GLENDA A. KISHBAUGH-POLLILO, Defendant : CIVIL ACTION-LAW : IN CUSTODY CERTIFICATE OF SERVICE I hereby certifY that I am this day serving a copy of the for,~going Motion upon the person and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of the same in the United States Mail, at Camp Hill, Pennsylvania, through first class certified mail, prepaid and addressed as follows: J. Paul Helvy, Esquire McNees, Wallace & Nurick, LLC 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 DATE: !z/lvlos- ~ ~ -- Jeanne B. Costopoulos., Esquire ATTORNEY FOR PLAINTIFF 3803 Gettysburg Road Camp Hill, PA 17011 Phone: (717) 920-2500 P A Supreme Ct. ID No. 68735 - - ._.1, (.: '.-.-) ..-,,--- - .'..." . ../ DEe, ::I ,1005 /y?~ STEVEN P. KISHBAUGH, SR., Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. : No. 05-947 GLENDA A. KISHBAUGH-POLLILO, Defendant CIVIL ACTION-LAW IN CUSTODY AND NOW, this ORDER OF COURT 9./i1 ~~ day of ,2005, upon consideration ofPlaintitT's Motion for Continuance, it is hereby ORDERED that said Motion is GRANTED. The hearing scheduled on December 30, 2005 at 8:30 a.m. is continued until the 7~ -~/ ~'3{)A J day of r ~ 1,2006, at . .m. in Courtroom No.5 of the Cumber/and County Courthouse, For purposes of the hearing, St,even P. Kishbaugh, Sr., Plaintiff, shall be deemed to be the moving party and shall proceed initially with testimony. Counsel for the parties shall file with the Court and opposing counsel a memorandum setting forth each party's position on custody, a list of witnesses who are expected to testifY at the hearing, and a summary of the anticipated testimony of each witness. These memoranda shall be filed at least ten days prior to the hearing date. ~U ~, Edward E. Guido, J. ?- \(9 \~~ ,lI'"'' .....,.,...,',.,,.., ;,.J.ll.:;>.'c ' - .'1,': '1\ I\J CO :01 W\J I Z ::130 SOUZ ^. >l'i! lr" \.; ,t., '.; ='-IJ.' j't: w . ...-1 ,v. '~_"'},J--.. ..JI V 3ClHJ,CrlJ3l\~ STEVEN P. KISHBAUGH, SR. Plaintiff v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-947 GLENDA A KISHBAUGH-POLlLLO Defendant CIVIL ACTION-LAW IN CUSTODY DEFENDANT'S MOTION IN LIMINE AND NOW COMES Defendant, Glenda A Kishbaugh-Polillo, by and through her attorneys, McNees Wallace & Nurick LLC, and J. Paul Helvy, Esquire, and files this Motion in Limine for the reasons set forth below. 1. This matter is scheduled for a hearing on February 17, 2006. 2. Plaintiff in his Pre-Hearing Memorandum has identified Deborah L. Salem, LPC, Custody Evaluator, as one of his witnesses. According to Plaintiff's Pre-Hearing Memorandum, Ms. Salem "will provide expert testimony in person regarding the custody evaluation she performed on the parties, including her current conclusions and recommendations." 3. Ms. Salem conducted a custody evaluation and issued a report dated October 6, 2005. The report, among other things, recommended shared physical custody of Steven on a week on/week off schedule. 4. Since issuing the report dated October 6, 2005, Deborah L. Salem has not conducted any further child custody evaluation. She has not met with Defendant or, to Defendant's knowledge, with Steven, since the issuance of her report on October 6, 2005. 5. The child custody evaluation performed by Deborah L. Salem, LPC, was undertaken pursuant to the Order of Court dated April 4, 2005 which directed the parties and their minor child to submit to the custody evaluation. "The purpose of the evaluation shall be to obtain independent professional recommendations concerning on- going custody arrangements which will best serve the needs and interests of the child." 6. Under Rule 1915.8 of the Pennsylvania Rules of Civil Procedure provides in part: (b) Where the expert is appointed upon the Court's motion, the expert shall deliver to the Court and to the attorneys of record or to the parties if there are no attorneys of record, a detailed written report setting out the findings, results of all tests made, diagnosis and conclusions within the time provided in subdivision (d) of this Rule. (i) Any report which is prepared at the request of a party, with or without a Court order, and upon which a party intends to rely at trial, must be served upon the Court and the opposing party thirty (30) days before trial. 7. Generally, expert witnesses are precluded from testifying on direct examination in any manner that is inconsistent with or that goes beyond the fair scope of his or her report. See, Pa. R.C.P, 4003.5(c). 8. Defendant requests the Court to order and direct that Plaintiff may not, on his direct examination, attempt to obtain any facts, opinions or recommendations from Deborah L. Salem other than those that are contained within the fair scope of her report dated October 6, 2005. 9. As set forth above, Ms. Salem's recommendation of a week on/week off shared physical arrangement was based on information available to her as of October -2- 6, 2005 and gathered in the course of her child custody evaluation conducted in accordance with the American Psychological Association Standards and Guidelines. To Defendant's knowledge, Ms. Salem has no additional information, To the extent she has been provided with any new information by Plaintiff, Plaintiff's counselor others since October 6, 2005, any such information has been provided in a one-sided manner without any opportunity for input from Defendant Any such new information cannot be part of her custody evaluation, A proper custody evaluation cannot properly be based on information supplied outside of recognized procedures for such an evaluation. See, Grossman v. State Board of Psvcholoqists, 825 A.2d 748 , 755-58 (Pa. Cmwlth. 2003) (affirming State Board of Psychology's reprimand of a psychologist for violation of the Code of Ethics in connection with a custody evaluation). A copy of Grossman is attached as Exhibit "A". WHEREFORE, Defendant requests the Court to grant her Motion in Limine and preclude Plaintiff from attempt to solicit any opinions or recommendations or factual background from Deborah L. Salem, LPC, that is beyond the fair scope of with her report dated October 6, 2005. Respectfully submitted, ~} Ilv/Olp McNEES WALLACE & NURICK LLC el 148 Pin tr P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendant By -3- f ,,:~\k>:t .4 , LexisNexis(TM) Basic Case Law & Statutes I Search - 1 Result - 825 A.2d 748 Page I of 15 Service: Get by Citation Terms: 825 A.2d 748 825 A.2d 748, *; 2003 Pa. Commw. LEXIS 379, ** Jan C. Grossman, Petitioner v. State Board of Psychology, Respondent No. 3023 C.D. 2001 COMMONWEALTH COURT OF PENNSYLVANIA 825 A.2d 748; 2003 Pa. Commw. LEXIS 379 January 17, 2003, Submitted on Briefs June 2, 2003, Decided June 2, 2003, Filed SUBSEQUENT HISTORY: Appeal denied by 9IQ~sman v.S@~~_Bd,_oLPsychoIOgYL_20Jt3Pa. LE)(IS_2139 (Pa.,_Nov._14, 2003) PRIOR HISTORY: [**1] Appealed From No. 0093-63-00. State Agency, State Board of Psychology. DISPOSITION: Affirmed in part and reversed in part. COUNSEL: Jan C. Grossman, petitioner, Pro se. Judith Pachter Schulder, Harrisburg, for respondent. Susan M. Shanaman, Harrisburg, for amicus curiae, The Pennsylvania Psychological. JUDGES: BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE JAMES R. KELLEY, Senior Judge. OPINION BY JUDGE McGINLEY. OPINION BY: BERNARD L. McGINLEY OPINION: [*750] OPINION BY JUDGE McGINLEY Jan C. Grossman, Ph.D. (Dr. Grossman) petitions for review of the order of the State Board of Psychology (Board) that reprimanded Dr. Grossman and assessed a $ 1,000.00 civil pena Ity. The "M" family is composed of B.P., mother, D.M., father, and L.M., a daughter. B.P. and D.M. separated and ultirnately divorced in 1994. At the time of the separation, B.P. and D.M. shared legal custody of L.M. who was approximately four years old. The Court of Common Pleas of Montgomery County (common pleas court) appointed Margaret Cook, Ph.D. (Dr. Cook), to perform a custody evaluation of the M family[**2] and to make a recommendation with respect to L.M.'s custody. Dr. Cook recommended that joint legal custody continue. B.P's attorney, Lori Shemtob (Attorney Shemtob), hired Dr. Grossman to review Dr. Cook's report. Dr. Grossman asked Attorney Shemtob to obtain D.M.'s consent before Dr. Grossman evaluated L.M. in July 1996. Attorney Shemtob attempted to obtain D.M.'s consent through correspondence with his attorney. Because D.M.'s attorney was in the process of ending their attorney-client relationship, D.M. did not receive the letters for some time. http://www3.1exisnexis.comlbcls/auth?cacheKey= 13802001 &srv=ols _ GetADocRetrieve&... 2/16/2006 . LexisNexis(TM) Basic Case Law & Statutes I Search - 1 Result - 825 A.2d 748 Page 2 of 15 During the first week of July, Dr. Grossman met with B.P. and her then husband, Michael (M.P.), for approximately one hour. On July 9, 1996, Dr. Grossman met with L.M., B.P. and M.P. After a brief introduction, Dr. Grossman met with L.M. alone for approximately one hour. Dr. Grossman's initial meeting with L.M. was to determine whether L.M. could verbally assess her needs, communicate realistically, describe her two home environments and to ultimately evaluate Dr. Cook's determination that L.M. was not a reliable witness. B.P. expressed her concern to Dr. Grossman that D.M. was not bathing L.M. when she stayed with him. B.P. arranged[**3] with Dr. Grossman to meet in a restaurant after B.P. picked up L.M. on July 14, 1996. Though Dr, Grossman had requested Attorney Shemtob to obtain D.M.'s consent before he met with L.M., he did not confirm with Attorney Shemtob whether D.M. consented. He also did not contact D.M. prior to the July 9, 1996, meeting. On July 10, 1996, D.M. learned from his [*751] daughter of her meeting with Dr. Grossman the previous day. On July 12, 1996, D.M. telephoned Dr. Grossman and told him not to meet with L.M. again. D.M. sent a letter by fax and by certified mail to Dr. Grossman and reiterated his objection to Dr. Grossman. During the telephone conversation, Dr. Grossman failed to inform D.M. that he was scheduled to meet with L.M. on July 14, 1996. Dr. Grossman did not receive the fax until Monday, July 15, 1996, when he returned to his office. On July 14, 1996, Dr. Grossman met L.M., B.P., and M.P. at a restaurant. After first meeting together, B.P. and M.P. moved to another table as far away from Dr. Grossman and L.M. as possible. To determine whether D.M. had cared for L.M. properly, Dr. Grossman picked up some of L.M.'s hair and also lifted her arms to smell L.M.'s hair and armpits. After[**4] the common pleas court became aware that Dr. Grossman met with L.M. without D.M.'s consent, the common pleas court ordered that neither parent could take L.M. to another professional unless the other parent consented. Dr. Grossman did not prepare a formal report but provided "feedback" to Attorney Shemtob. Dr. Grossman testified at the custody trial. Dr. Grossman testified that he asked Attorney Shemtob to obtain the cooperation of all parties. Notes of Testimony, January 28, 1997, (N.T. 1/28/97) at 451. n1 Dr. Grossman also testified that in his telephone conversation with D.M., D.M. "did not forbid or, in any way, stop me from seeing his daughter." N.T. 1/28/97 at 468-469. Dr. Grossman described L.M.'s condition when he met her at the restaurant as having matted hair with a slight smell about her. N.T. 1/28/97 at 470. Dr. Grossman criticized Dr. Cooke's evaluation because there was no meeting with the parents together and no interview of L.M. N.T. 1/28/97 at 478-481. Dr. Grossman stated that the fact that D.M. sold insurance could present a child care problem because he might have to contact customers at night. N.T. 1/29/97 at 505-506; Reproduced Record (R.R.) at 372a-373a. Dr. [**5] Grossman concluded that Dr. Cook did not collect sufficient data to draw the conclusions in her report. N.T. 1/29/97 at 515. On cross-examination, Dr. Grossman admitted that while meeting with B.P. and M.P., he made a note that D.M. consumed 750 milligrams per day of caffeine. N.T. 1/29/97 at 550; R.R. at 386a. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - nl The Reproduced Record does not contain the complete notes of testimony. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - On or about February 14, 2000, the Commonwealth of Pennsylvania Bureau of Professional and Occupational Affairs (Commonwealth) filed a Notice and Order to Show Cause why the State Board of Psychology (Board) should not suspend, revoke or otherwise restrict Dr. http://www3.1exisnexis.comlbcls/auth?cacheKey= 13 80200 1 &srv=ols _ GetADocRetrieve&... 2/16/2006 , LexisNexis(TM) Basic Case Law & Statutes I Search - 1 Result - 825 A.2d 748 Page 3 of 15 Grossman's license, certificate, registration or permit, or impose a civil penalty. Count One of the Order to Show Cause alleged: 9. On or about July 9, 1996, Respondent [Dr. Grossman] met with L.M., then approximately 5 1/2 years old, for approximately one hour in his office at the request of L.M.'s mother, B.P. and without the knowledge or consent of D.M. 10. By letter[**6] dated July 12, 1996, D.M. demanded that Respondent [Dr, Grossman] discontinue any meetings or evaluations with his daughter without his consent and advised Respondent [Dr. Grossman] that he did not have consent to evaluate his daughter, L.M. 11. On or about July 14, 1996, which was a Sunday evening, Respondent [Dr. Grossman] again met with L.M. in a Chinese restaurant at the request of [*752] B.P. without the knowledge or consent of D.M. 12. At the time B.P. requested that Respondent [Dr. Grossman] see her daughter, she was in the midst of a custody battle with L.M.'s father, D.M. 13. During the course of the meetings on July 9 and 14, 1996, Respondent [Dr. Grossman] not only spoke to L.M. but also viewed her physical appearance by holding her hands and smelling her because B.P. had alleged that D.M. failed to bathe L.M. andlor engage in appropriate hygiene care with respect to L.M. 14. On July 16, 1996 in the Court of Common Pleas of Montgomery County, Respondent [Dr. Grossman] provided expert testimony on behalf of B.P. in the custody matter of L.M. 15. Respondent [Dr. Grossman], who is also a licensed practicing attorney, never consulted with D.M. or his attorney with[**7] respect to consent to meet with, treat and/or evaluate L.M. 16. Based upon the foregoing Factual Allegations, the Board is authorized to suspend or revoke, or otherwise restrict Respondent's [Dr. Grossman] license, or impose a civil penalty under EiJ__p._S~g 120M~ n2 as well as the Board's Regulations at 49 Pa.Codeg_4LEiL Ethical Principle 3(e), n3 because Respondent [Dr. Grossman] has deviated from the American Psychological Association standards and guidelines when he conducted a psychological evaluation and/or met with L.M. without the knowledge or consent of her father, D.M. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - n2 Section 8(a)(9) of the Professional Psychologists Practice Act (Act), Act of March 23, 1972, P.L. 136, as amended, 63 P.S,gJ2JlaCCl)J9J, provides: (a) The board may refuse to issue a license or may suspend, revoke, limit or restrict a licensee or reprimand a licensee for any of the following reasons: (9) Violating a lawful regulation promulgated by the board, including, but not limited to, ethical regulations, or violating a lawful order of the board previously entered in a disciplinary proceeding. [* *8] n3 Principle 3(e) of the Board's Code of Ethics (Principle 3(e)), <I'2pgJ:::odeg 41.61(3)(e), provides: As practitioners and researchers, psychologists act in accord with American Psychological Association standards and guidelines related to practice and to the conduct of research with http://www3Jexisnexis.com/bcls/auth?cacheKey= 1380200 1 &srv=ols GetADocRetrieve&,.. 2/16/2006 , LexisNexis(TM) Basic Case Law & Statutes I Search - I Result - 825 A.2d 748 Page 4 of 15 human beings and animals. In the ordinary course of events, psychologists adhere to relevant governmental laws and institutional regulations. Whenever the laws, regulations or standards are in conflict, psychologists make known their commitment to a resolution of the conflict. Both practitioners and researchers are concerned with the development of laws and regulations which best serve the public interest. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - Notice and Order to Show Cause, February 14, 2000, Paragraphs 9-16 at 2-3; R,R. at 3a-4a. In Count II, the Commonwealth alleged that Dr. Grossman violated Section 8(a)(11) of the Act, 631'.5. & 1208(il)i11l, n4 because his psychological evaluation and/or meeting with L.M. with respect to a custody proceeding without the knowledge or consent of D.M., constituted[**9] unprofessional conduct. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - n4 Section 8(a)(11) of the Act, 63 P,Sc9t~OJKq)Lll), provides: (a) The board may refuse to issue a license or may suspend, revoke, limit or restrict a licensee or reprimand a licensee for any of the following reasons: (11) Committing immoral or unprofessional conduct. Unprofessional conduct shall include any departure from, or failure to conform to, the standards of acceptable and prevailing psychological practice. Actual injury to a client need not be established. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - On March 17, 2000, Dr. Grossman moved to dismiss the order to show cause because the order failed to set forth the material facts andlor statute upon which [*753] the cause of action was based, failed to set forth with specificity the grounds on which it is alleged that Dr. Grossman violated the Act and Principle 3(e). The Pennsylvania Psychological Association (PPA) filed a brief for amicus curiae in support of Dr. Grossman's motion to dismiss. On July 25, 2000, the Board denied the motion to[**10] dismiss. On October 6, 2000, the Commonwealth presented a motion in limine in the nature of a motion to limit expert testimony because Dr. Grossman indicated in his prehearing statement that he planned to call three expert witnesses: Alvin I. Gerstein, Ph,D. (Dr. Gerstein), Sam Knapp, Ed.D. (Dr. Knapp), and Barry Bricklin, Ph.D. (Dr. Bricklin) and that the experts were scheduled to testify with respect to the same issues. The Commonwealth requested that the Board prohibit Dr. Grossman from calling all three expert witnesses. On October 19,2000, the Board granted the motion in part and excluded the testimony of Dr. Gerstein. On October 23, 2000, the Board conducted a formal hearing. D.M. testified that he spoke to Dr. Grossman on July 12, 1996, after Dr. Grossman met with L.M. on July 9, 1996. D.M. testified that he read a letter to Dr. Grossman over the telephone that advised him not to see L.M. again. Notes of Testimony, October 23, 2000, (N.T. 10/23/00) at 28, 34-35; R.R. at 75a. D.M. further testified that he was never asked to participate in a custody evaluation of L.M. with Dr. Grossman. N.T. 10/23/00 at 36; R.R. at 76a. The Commonwealth called Dr. Grossman as a witness. [**11] Dr. Grossman admitted that he never obtained the written or verbal consent of D.M. to become involved in the custody case. N.T. 10/23/00 at 116; R.R. at 79a. Dr. Grossman testified that he never accused D.M. http://www3.lexisnexis.comlbcls/auth?cacheKey= 13 80200 1 &srv=ols GetADocRetrieve&... 2/16/2006 . LexisNexis(TM) Basic Case Law & Statutes I Search - 1 Result - 825 A.2d 748 Page 5 of 15 of having a caffeine addiction but that Dr. Cook had an obligation to investigate this issue because B.P. raised it and it was not included in Dr. Cook's report. N.T. 10/23/00 at 139; R.R. at 101a. Dr. Grossman explained that he did not perform a comprehensive custody evaluation of L.M. but instead performed a limited review of Dr. Cook's procedures. N.T. 10/23/00 at 147; R.R. at 109a. Dr. Grossman explained that he informed Attorney Shemtob "the only way I'll undertake this case is if you tell the other side what I'm doing and she agreed to do it. As it turns out from later correspondence, it turns out she didn't." N.T. 10/23/00 at 151; R.R. at U2a. On cross-examination, Dr. Grossman denied that D.M. read anything to him over the telephone or that he was told not to see L.M. N.T. 10/23/00 at 164; R.R. at USa. Kirk Heilbrun, Ph.D. (Dr. Heilbrun), a professor of psychology and chair of the Department of Clinical and Health Psychology at MCP Hahnemann University, testified as[**12] the Commonwealth's expert. Dr. Heilbrun reviewed the records and documents in the case. Dr. Heilbrun testified that Dr. Grossman played the role of evaluator in that he did more than just critique Dr. Cook's evaluations. Dr. Heilbrun reported: When he moved to evaluating LM, meeting with LM herself, then he moved from evaluating existing data to creating to his own data. And in my mind, that was what made the difference between his critiquing the evaluation of another mental health professional, and performing a version of his own evaluation. N.T. 10/23/00 at 220; R.R. at 141a. Dr. Heilbrun determined that Dr. Grossman functioned as an evaluator because he saw L.M. twice and developed some of his own data and because he testified about custodial aspects of the father-child relationship. N.T. 10/23/00 at 231. Dr. Heilbrun testified that the standard of conduct in [*754] July 1996 and January 1997 for a custody evaluator required the permission and consent of both parents. N.T. 10/23/00 at 238; R.R. at 148a. Dr. Heilbrun also testified that it is not appropriate for a psychologist to delegate the responsibility of obtaining consent to attorneys. N.T. 10/23/00 at 241. After the Commonwealth[**13] rested, Dr. Grossman's attorney moved to dismiss as the Commonwealth admitted that the Board had no written policy regarding consent in a custody evaluation. The Board denied the motion. Dr. Bricklin, a clinical psychologist and a professor at the Institute for Graduate Clinical Psychology at Widener University and an expert in custody, testified that there is no standard with respect to obtaining consent from both parents where there is shared legal custody. N.T. 10/23/00 at 365; R.R. at 180a. Dr. Bricklin testified that there was nothing in the Guidelines for Child Custody Evaluations in Divorce Proceedings (Guidelines) that would prevent a psychologist from critiquing the assessment methodology of someone else or conducting a limited evaluation of a child alone. N.T. 10/23/00 at 374; R.R. at 189a. Dr. Grossman explained his conduct with respect to L.M.: And I thought, up until I got my Prosecution letter, that as a psychologist based on the guidelines and the APA ethical principles, I had discretion. The discretion I used in this case was I felt it was very important, given what I had read in Dr. Cooke's report, for the Court to be informed that this child either did or did not[**14] have the ability to contribute to her own evaluation and express her own needs. And because I felt that it was important, because I made that clinical decision, I went forward notifying the father in the way that I felt was the best and most efficient way. Notes of Testimony, October 24,2000, (N.T. 10/24/00) at 424; R.R. at 217a. Dr. Knapp, deputy executive officer and director of professional affairs with the PPA, testified that in 1996, there was no requirement that Dr. Grossman obtain D.M.'s consent for the review of Dr. Cook's report and there was no requirement that he notify or obtain consent http://www3.lexisnexis.comlbcls/auth?cacheKey= 13 80200 1 &srv=ols _ GetADocRetrieve&.., 2/16/2006 , LexisNexis(TM) Basic Case Law & Statutes I Search - 1 Result - 825 A.2d 748 Page 6 of 15 from D.M. prior to meeting with L.M. N.T. 10/24/00 at 537; R.R. at 246a. On December 3, 2001, the Board determined that Dr. Grossman violated Principle 3(e) and S~ction8lg)(9) of the Act and issued a reprimand. The Board also determined that Dr. Grossman violated SectjpJlJl(a llWof tb_e_8ct and assessed a $ 1,000 civil penalty. The Board sustained both Count 1 and Count 2 in the Order to Show Cause. The Board made the following relevant findings of fact: 17. The father called Respondent [Dr. Grossman] in the afternoon of July 12, 1996, instructed him not to meet with his daughter[**15] again and informed him that he would be sending the Respondent a fax following the conversation. 18. Respondent [Dr. Grossman] learned for the first time that the father did not give his consent to Respondent's evaluation of L.M. 19. Respondent [Dr. Grossman] did not advise the father at any time during that conversation that he was scheduled to meet with L.M. again two days later. 20. During the conversation, Respondent [Dr. Grossman] did not attempt to obtain the father's consent to meet with L.M. on July 14, 1996. 21. The father followed up his telephone call by sending the Respondent a letter by fax and certified mail reiterating his prohibition against the Respondent seeing L.M. again. 22. Respondent did not receive the fax until July 15, 1996. (NT 165, 480) [*755] 23. As was previously arranged, Respondent met L.M. at a Chinese restaurant on July 14, 1996, to see if the mother's claim that L.M. returned from visits with her [sic] the father in a 'dirty and slovenly condition' were accurate. 28. Respondent testified at the custody proceeding the father had a caffeine addiction and as an insurance salesman would be required to work at night, both of which[**16] would affect his ability to care for L.M. 31. Respondent conducted a custody evaluation. State Board of Psychology, Adjudication and Order, December 3, 2001, (Adjudication) Findings of Fact Nos. 17-23, 28, 31 at 6-8; R.R. at 346a-348a. The Board concluded that Dr. Grossman conducted a psychological evaluation of, and met with, L.M. without the knowledge or consent of D.M., in violation of Sections 8(C1)(9)9Uhe 8ct and Principle 3(e) and raised questions about D.M.'s parenting ability without having talked to D.M. in violation of Secj:ion 8(il)l1J1-QUheAct. The Board also determined that Dr. Grossman had sufficient notice that he was required to obtain consent because the Board amended its Code of Ethics on June 17, 1989. Included in the amendment was Principle 3(e) which required adherence to the standards and guidelines of the American Psychological Association [APA] related to practice. In July 1994, the APA published Guideline # 9 of the Guidelines which provided: The psychologist obtains informed consent from all adult participants and, as appropriate, informs child participants. In undertaking child custody evaluations, the psychologist ensures that each[**17] adult participant is aware of (a) the purpose, nature, and method of the http://www3.1exisnexis.com/bcls/auth?cacheKey= 13 80200 1 &srv=ols GetADocRetrieve&... 2/16/2006 . LexisNexis(TM) Basic Case Law & Statutes I Search - 1 Result - 825 A.2d 748 Page 7 of 15 evaluation; (b) who has requested the psychologist's services; and (c) who will be paying the fees. The psychologist informs adult participants about the nature of the assessment instruments and techniques and informs those participants about the pOSSible disposition of data collected. The psychologist provides this information, as appropriate to children, to the extent that they are able to understand. Guidelines for Child Custody Evaluations in Divorce Proceedings, American Psychologist, July 1994, at 679; R.R. at 413a. Dr. Grossman contends that the Board failed to give proper notice to him of its use, enforcement and interpretation of the Guidelines and its standards for notice and consent in child custody situations, that the Board committed errors of law, that the Board committed a gross abuse of discretion when it did not allow him to present a witness, and that the Board's finding that the Commonwealth had met its burden of proof was a gross abuse of discretion and against the weight of the evidence presented. Dr. Grossman also contends that he did not violate SectiQD~(9)of thJLp.ct because[**18] the Commonwealth did not meet its burden of proof, or because Principle 3(e) is defective, andlor because the Board misapplied one of its own cases. Dr. Grossman also contends that Se~liQflJl(a)(l1JQL1b~nAct is unconstitutionally vague andlor the application of the section constitutes a result so excessively punitive so as to constitute a gross abuse of discretion on the part of the Board. n5 - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - n5 An adjudication made by the Board must be affirmed on appeal unless constitutional rights have been violated, an error of law has been made, rules of administrative procedure have been violated or a finding of fact necessary to support the adjudication is not supported by substantial evidence. ~atoff v. State6_oard of Psv<;I]9logy, ;;.9Ll'Q,_~19,750 A.2ci835 (2000) . - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*756] Dr. Grossman asserts that he did not need to obtain D.M.'s consent before either of his meetings with L.M. He also asserts that even if the Board required him to obtain consent, the Board failed to provide him with adequate notice of the requirement. [**19] Dr. Grossman also argues that the Board failed to inform him in the Notice and Order to Show Cause that he could be cited for imrnoral and unprofessional conduct underSe_ctiQD_8ialLU) of the AcUQ[ his testimony at the custody trial rather than for his evaluation of L.M. without D.M.'s consent. As a consequence, Dr. Grossman could not adequately prepare a defense because he did not know that his testimony at the custody trial was at issue. I. COUNT I. A. Notice. Dr. Grossman contends that the Board failed to provide proper notice of its use, enforcement, and interpretation of the Guidelines and its standards for notice and consent in child custody situations. Dr. Grossman notes that he was found guilty of violating Principle 3 (e) because he did not follow Guideline # 9 which was published in 1994. First, Dr. Grossman asserts that Principle 3(e) fails to delineate what a "standard or guideline" is. However, Guideline # 9 is clearly identified as a "guideline" of the APA. On this basis, this Court does not believe that Dr. Grossman could not ascertain that Guideline # 9 was a "guideline". http://www3.1exisnexis.comlbcls/auth?cacheKey=13802001 &srv=ols _ GetADocRetrieve&... 2/16/2006 . LexisNexis(TM) Basic Case Law & Statutes 1 Search - 1 Result - 825 A.2d 748 Page 8 of 15 Second, Dr. Grossman asserts that Principle 3(e) did not provide any[**20] notice or clarification as to what would happen if an APA guideline or standard was updated, such that the Board did not inform Dr. Grossman or other psychologists between July 1994, when the APA published the Guidelines that they applied to Principle 3(e). This Court does not accept Dr. Grossman's argument. If the Board's principle states that it will adhere to the Standards and Guidelines of the APA and the APA issues a new set of guidelines, it stands to reason that the new guidelines apply to psychologists licensed in the Commonwealth of Pennsylvania. Although Dr. Grossman argues that Principle 3(e) is unconstitutionally vague and fails to contain reasonable standards to guide conduct to satisfy the requirements of due process, See W,!tkinsY~S_tqte_Boarc:l oU>entistry,_?4QA.2d 76J) (Pa.C;:mY'Jlth.199-'~), this Court does not agree. Principle 3(e) requires adherence to the standards and guidelines of the APA. Guideline # 9 of the Guidelines is a guideline of the APA. The principle is clear. Next, Dr. Grossman asserts that the Board improperly delegated its rulemaking authority to the APA. Section 3.2(2) of the Act, 63 P,S. 9J.20~,2(2), requires[**21] the Board to establish standards of practice and a code of ethics. The Board complied with the General Assembly's statutory directive. Dr. Grossman also asserts that a reliance on APA standards and guidelines could result in some guidelines or standards that are in conflict with Pennsylvania law. However, he does not indicate that was the case here. Dr. Grossman next asserts that even if he concedes that the Board legally incorporated the Guidelines into Principle 3(e) that the Guidelines are inapplicable because they are merely aspirational. The introduction to the Guidelines provides: [*757] These Guidelines build upon the American Psychological Association's Ethical Principles of Psychologists and Code of Conduct (APA, 1992) and are aspirational in intent. As guidelines, they are not intended to be either mandatory or exhaustive. The goal of the guidelines is to promote proficiency in using psychological expertise in conducting child custody evaluations. Guidelines at 677; R.R. at 41la. Dr. Grossman argues that because the Guidelines are aspirational and not mandatory, they cannot be applied to regulate conduct of psychologists in Pennsylvania. While Dr. Grossman is correct that[**22] the APA describes the Guidelines as aspirational and not mandatory, the Board made the Guidelines mandatory when it required compliance with the standards and guidelines of the APA. As part of this same argument, Dr. Grossman asserts that the Board applied an unconstitutionally vague term, "higher standard", in reaching its decision. The Board stated: Regardless of whether the APA intended their Guidelines to be aspirational for association members, the inclusion of APA standards and guidelines in Principle 3(e) of the Board's Code of Ethics, 49 Pa._C;:ode~_4).61, Principle 3(e), established a mandatory requirement for licensees in this Commonwealth. As the Board explained in its Preamble to the amended regulations, 'the primary objective of this amendment is to hold licensed psychologists to a higher standard of ethical practice. . . in their relationships with their clients, their colleagues, their research subjects and the general public.' 19 Pa. B. 2555 (Emphasis in original). Adjudication at 15; R.R. at 355a. Dr. Grossman asserts that the term "higher standard" is unconstitutionally vague because it is unclear as to what or whom the[**23] standard is higher. Dr. Grossman believes that it is unclear whether the standard is higher than that for licensed physicians, chiropractors, podiatrists, cosmetologists or whether the standard is higher than the APA's standard or the http://www3.1exisnexis.com/bcls/auth?cacheKey= 13 80200 1 &srv=ols _ GetADocRetrieve&... 2/16/2006 . LexisNexis(TM) Basic Case Law & Statutes I Search - 1 Result - 825 A.2d 748 Page 9 of 15 standard of psychology boards in other states. However, Dr. Grossman answered his own question in his brief when he acknowledged that the preamble to the proposed 1989 Ethical Code explained that the new Code had a higher standard than the previous Code. n6 - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - n6 With respect to this same issue, Dr. Grossman argues that it was improper for the Board to cite him for "immoral and unprofessional" conduct because he was compelled to adhere to a higher standard, the aspirational APA Guideline. Dr. Grossman was cited for "immoral and unprofessional" conduct in Count II which will be discussed below. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - Dr. Grossman next argues that convicting him of "immoral and unprofessional" conduct was a gross abuse of discretion because Principle 3(e) must be strictly construed and any ambiguities resolved[**24] in his favor. See CommQllIIvealtlL'-"u1.llssiter,:;5:'lJ'a. 586,_Z22 lI,2,L657 (J_'i~lD. This argument, however, goes to the underlying merits of Dr. Grossman's case and not to the issue of whether he received notice. Arguments raised in the argument section of a brief but not in the Statement of Questions Involved are waived. See Pa.R,l\.F'. 2UQ[Cl). n7 - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - n7 Dr. Grossman further argues that a brief summary of one of the Board's decisions in the State Board of Psychology Spring 1993 Newsletter was insufficient to apprise him of the necessity to obtain the consent of both parents before a custody evaluation. The summary of Commonwealth of Pennsylvania, Bureau of Professional and Occupational Affairs v. Rosenblum, Docket No. 436-MISC-91, File No. 86-63-01749, in the State Board of Psychology Spring 1993 Newsletter stated: "The Board's action against Rosenblum was based upon his admission to having failed to value objectivity, engaged in a dual relationship, and committed unprofessional conduct in five child-custody cases." State Board of Psychology Newsletter, Spring 1993, at 8; R.R. at 580a. The Board referred to Rosenblum in Footnote # 17 of the Adjudication at the conclusion of its discussion of Hill and Wesley and its determination that in light of Guideline # 9, dual consent of both parents must be provided: Applying these principles regarding dual consent, as early as 1991, the Board reprimanded and assessed a civil penalty against a psychologist for, amongst other violations, violating Principle 3 for failing to obtain the consent of both parents who had shared legal custody. Commonwealth of Pennsylvania, Bureau of Professional and Occupational Affairs v. Rosenbloom [sic], Docket No. 436-MISC-91, File No. 86-63-01749, p.6. Notice of the Rosenbloom [sic] Consent Agreement was published in the Board's Spring 1993 newsletter which was mailed to all licensees. Adjudication, n.17 at 16-17; R.R. at 357a-358a. This Court agrees with Dr. Grossman that this squib in a newsletter did not constitute sufficient notice to Dr. Grossman. Further, neither the Board in its opinion nor the Commonwealth in its brief to this Court cites any case law, rule, or regulation that a brief summary constitutes notice. Even though the Board's reliance on the mention of this case in the newsletter is misplaced, this Court agrees with the Board that Principle 3(e) and the Guidelines constituted sufficient notice. http://www3.1exisnexis.comlbcls/auth?cacheKey= 13 80200 1 &srv=ols _ GetADocRetrieve&." 2/16/2006 . LexisNexis(TM) Basic Case Law & Statutes I Search - I Result - 825 A.2d 748 Page 10 of 15 - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**25] [*758] B. Errors of Law. Dr. Grossman contends that the Board committed errors of law. First, Dr. Grossman contends that the Board erred when it referred to two cases, lUXe: We~JeY J.K",_299 Pa, Super. 504,44~ A.2d 12_43_(Pa.SllRer,19~J n8 and t1illv._Hilj, 422 Pa~super~533, 619 A.2d 1Q!:lJ'dPa.~l!Per.l~3). n9 The Board stated: Respondent's [Dr. Grossman] actions should also have been guided by the decisions of the Superior Court in Hill and Wesley involving shared or joint custody. 'Legal custody' is defined by statute as the legal right to make decisions affecting the best interest of a minor child, including, but not limited to, medical, religious and educational decisions.' 23 Pa~J;,s.A. 9 :S~_Q2. In the Board's opinion, decisions involving psychological evaluations are encompassed within this definition. . . . Unlike sole custody, in shared or joint custody, legal custody is shared while physical custody is alternated by the agreement of the parties. Wesley,445 A.2d-'!.L1447. 'The philosophic premise of shared custody is the awarding to both parents of responSibility for decisions and care of the child. . . . Shared[**26] custody allows both parents input into major decisions in the child's life.' Hill, 61.9A2_d at lo!:lJl (emphasis added [by the Board] and Weslev, 445 A.2d_at 1247'). Given that both parents' input is required, and in light of Guideline # 9, dual consent of both parents [*759] must be provided. (Footnote omitted). Adjudication at 16; R.R. at 356a. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - n8 In Wesley, our Pennsylvania Superior Court set forth the basis under which parents may be awarded shared custody of a child. The Superior Court referred to Section 3 of the Custody and Grandparents Visitation Act, Act of November 5, 1981, P.L. 115,23 P.S. 9 1003, which defined Legal Custody as the "legal right to make major decisions affecting the best interests of a minor child, including but not limited to, medical, religious and educational decisions." Under a shared custody arrangement, legal andlor physical custody of a child is shared. n9 In Hill, our Pennsylvania Superior Court reversed the order of the Court of Common Pleas of Philadelphia County that awarded parents shared legal custody but allowed the mother to make the decision if a conflict arose. The Superior Court determined that the trial court's order effectively granted the mother sole legal custody and reasoned, "it is abundantly clear. . . that the concept of shared legal custody does not contain the principle of giving one parent final authority in the case of a dispute." Hil1619 A.2d-,rrJoo~_9. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -[**27] Dr. Grossman attacks the Board's reliance on_t1lJLand Wesley from different angles. First, he asserts that the Board did not find his intervention or evaluation of L.M. to be a major decision n10 therefore dual consent was not required. Second, he asserts that because neither Hill nor Wesley mentions health professionals of any sort there is no affirmative duty for a psychologist to legally interpret a joint custody order and abide by the order by withholding professional service absent joint consent. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - http://www3.1exisnexis.com/bcls/auth?cacheKey= 13 80200 1 &srv=ols _ GetADocRetrieve&... 2/16/2006 . LexisNexis(TM) Basic Case Law & Statutes 1 Search - 1 Result - 825 A.2d 748 Page 11 of 15 n10 Section 5302 of the Domestic Relations Code, 23 Pa.c~S.-!j 5302, gave legal custodians the legal right to make major decisions affecting the best interest of a minor child, including, but not limited to, medical, religious and educational decisions. This section was the same as the section cited in Wesley. Since Wesley, the domestic relations statutes have been consolidated. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - Although the Board did not explicitly make a finding that the decision to pursue a second [**28] evaluation of L.M. was "major", this Court infers that the Board in the promulgation of its regulations and Code of Ethics regarded a custody evaluation to be a major decision, and, second, while Hill and Wesley do not mention health care professionals or psychologists, that was not the thrust of the opinions. Hill and WeSleY' addressed the concept of shared legal custody in Pennsylvania. The result is that when both parents share legal custody of a child, then the consent of both parents is needed with respect to major decisions. Dr. Grossman also alleges that he met with L.M. a second time to investigate B.P.'s allegation that D.M. did not properly care for L.M. because she returned to B.P. in a "slovenly and unkempt" condition. Dr. Grossman argues that he was investigating possible child abuse and, consequently, did not have to obtain the consent of D.M. before he met with L.M. on July 14, 1996. The Board noted that where there is a "bona fide emergency" a psychologist need not obtain the consent of both parents in the performance of a custody evaluation. The Board cited allegations of sexual abuse or a child's threat of suicide as examples. Adjudication at 13, n. [**29] 11; R.R. at 353a. This Court agrees with the Board that Dr. Grossman was not excused from obtaining D.M.'s consent because L.M. was returned to B.P. not freshly bathed and coiffured. C. Refusal to Allow Dr. Gerstein to Testify. Dr. Grossman next contends that the Board committed an abuse of discretion when it did not permit the testimony of Dr. Gerstein. Dr. Grossman asserts that Dr. Gerstein, a member of the Board from 1992-1997 when Dr. Grossman's alleged offenses occurred, would in his testimony address whether Dr. Grossman's conduct was in any way forbidden by a Board policy, rule, and/or adjudication. Prior to the commencement of the hearing, the Board granted the Commonwealth's motion in limine to exclude Dr. Gerstein's testimony. The Board determined that Dr. Gerstein was not permitted to testify because Dr. Grossman informed the Board that Dr. Gerstein would have testified that while he was a member of the Board Dr. Grossman's actions in conducting a custody evaluation would not have been a violation of the Act or the regulations. The Board determined that Dr. Gerstein's view of how the Board would have interpreted the Act or the regulations were not relevant or probative. [**30] Dr. Grossman argues that the Board committed an abuse of [*760] discretion because Dr. Gerstein would not have testified with respect to his interpretation of the Guidelines but would have discussed whether the Guidelines served as rules for the Board in 1996. In Allegheny County Institl.!tionj)istri(:;t-'LDep<!Ltmento[PutJlic Wel{are,668 A.2d 252 CPa, cmwllh,) 995), petition for allowance of appeal denied,S<'I7f'i'l. 757,~92_8.2d5QLU997J, this Court affirmed a decision of a hearing examiner of the Department of Public Welfare that refused permission to allow Allegheny County Institution District to introduce the testimony of Speaker of the Pennsylvania House of Representatives, K. Leroy Irvis, with respect to the General Assembly's intent when it passed a certain act. This Court stated that it "is not bound by the arguments of a single legislator made on the floor in debate of the issue, much less the post-Act expression of opinion by a single legislator made on the floor in debate of the issue, much less the post-Act expression of opinion by a single legislator." Allegheny ~Ql,Jl1ty~'l~titl.!tion District, 668jL~c:t at 257 -.n,J.J. http://www3.1exisnexis.com/bcls/auth?cacheKey= 13 80200 1 &srv=ols _ GetADocRetrieve&... 2/16/2006 . LexisNexis(TM) Basic Case Law & Statutes I Search - 1 Result - 825 A.2d 748 Page 12 of 15 Similarly, [**31] the Board would not be bound by the opinion of a single Board member of the Board's intentions regarding the Board's rules and policies in 1996. The rules and policies speak for themselves and the underlying intent was subject to administrative review by the Board. This Court agrees with the Board that Dr. Gerstein's opinion as a former Board member was not relevant or probative, and the Board did not abuse its discretion when it chose not to permit the testimony of Dr. Gerstein. D. Burden of Proof. Dr. Grossman next contends that the Board's finding that the Commonwealth met its burden of proof was a gross abuse of discretion and was against the weight of the evidence. Dr. Grossman asserts that he along with Dr. Knapp, Dr. Bricklin, and the PPA, believed that dual parental consent was unnecessary. Further, Dr. Grossman asserts that he did not perform a custody evaluation but that upon the request of B.P. he evaluated L.M. and critiqued the assumptions and methodology of Dr. Cooke's assessment. With respect to this issue, the Board determined: Lastly, Respondent [Dr. Grossman] asserted that he was not required to obtain the father's consent because he did not perform[**32] a custody evaluation. Respondent [Dr. Grossman] rnaintained that he was simply providing a custody related evaluation, which does not require the consent of both parents. . . . He insists that within the gamut of this review he was permitted to review Dr. Cook's report and also conduct a brief assessment of the child. . . . Conversely, the Commonwealth insisted that Respondent served as a custody evaluator, thereby requiring dual consent. Drs. Bricklin, Knapp and Heilbrun all testified that a 'records review' is limited to a review of the documents of record including the custody report, raw testing data, and background information. It does not involve any personal contact with the parties. . . . Dr. Knapp further testified that any direct evaluation of the child or the parent may be construed as a custody evaluation. . . . Again, all three experts agreed that in this type of evaluation dual consent is required. . . . Specifically, in this case, Dr. Heilbrun opined that the Respondent [Dr. Grossman] exceeded the scope of a records review and acted more like a custody evaluator because he met with L.M. on two occasions. The Board agrees. (Citations and footnote omitted). [*761] Adjudication[**33] at 17-18; R.R. at 357a-358a. This Court finds that the Board had the authority to make such findings of fact and conclusions of law. Dr. Grossman also asserts that he did not violate Guideline # 9 because he was not required to obtain consent from D.M. because D.M. was a litigant. Dr. Grossman argues that D.M. was not a participant because he was not going to be examined. The Board disagreed with Dr. Grossman: Respondent [Dr. Grossman] argues that even if Guideline # 9 is mandatory it did not require him to obtain the father's consent because it uses the language 'adult participants' rather than 'litigants.'. . . In Respondent's [Dr. Grossman] opinion, the father was a 'litigant' and therefore, was not required to provide consent. . . . Reading the Guideline as a whole, the Board simply cannot interpret it as requiring anything less than the consent of both the mother and the father. The Guideline requires that 'each' participant understand who has requested the services and who is paying the fee. Given this specific language, it would be illogical to suggest that the adult participants are limited to the parties hiring the psychologist since they are well aware of the scope[**34] of the engagement and the fee. (Footnote and citations omitted). http://www3Jexisnexis.comlbcls/auth?cacheKey= 13 80200 1 &srv=ols _ GetADocRetrieve&... 2/16/2006 . LexisNexis(TM) Basic Case Law & Statutes I Search - I Result - 825 A.2d 748 Page 13 of 15 Adjudication at 15-16; R.R. at 356a-357a. Again, this Court must conclude that the Board had the authority to make these findings and conclusions and committed no error. Essentially, Dr. Grossman next asks this Court to reweigh the testimony of his witnesses, Dr. Bricklin and Dr. Knapp, that Dr. Grossman did not have a duty to obtain D.M.'s consent. Dr. Grossman also asserts that the Commonwealth's expert, Dr. Heilbrun, came to the same conclusion. A review of Dr. Heilbrun's testimony does not support Dr. Grossman's assertion. Dr. Heilbrun testified that, in his opinion, Dr. Grossman conducted a custody evaluation which required the consent of both parents. The Board accepted Dr. Heilbrun's testimony over the testimony of Dr. Knapp and Dr. Bricklin. It is not this Court's function to judge the weight and credibility of evidence before an administrative agency. MakrLs\l~~til.t~!3uIe_ilJ.lof Professional and Occupational .Affairs, Stille Board of Psychology, 143 fa. COmmw. 456,599 ~.2d2Z'iU'il,_Cmwlth~19Jl--D. Dr. Grossman's argument must fail. nll - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - nll Dr. Grossman next contends that the Commonwealth did not meet its burden of proof andlor Principle 3(e) was defective and/or the Board misapplied Rosenblum and he was not in violation of Section 8(Cl)(9) of the Act. This Court has already determined that the Commonwealth met its burden of proof with respect to Principle 3(e) and that Principle 3(e) was not defective. With respect to Rosenblum, Dr. Grossman argues that he did not violate Rosenblum. Dr. Grossman mischaracterizes the Board's discussion. The Board did not refer to Rosenblum to indicate that it served as a basis upon which to cite Dr. Grossman. Rather, the Board cited its decision to show that it required dual parental consent in certain cases since 1991 well before the conduct at issue here. This Court reiterates that the Board did not err when it determined that Dr. Grossman violated ~ectioD 6(Cl)(9) ofth_~_Jl.cJ. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**35] II. COUNT II - SECTION 8(a){11) OF THE ACT. Finally, Dr. Grossman contends that Sec.tion~@lUl}Qf thE! Act is unconstitutionally vague andlor the application of this statute constituted a result so excessively punitive as to constitute a gross abuse of discretion by the Board. Dr. Grossman believes that the Order to Show Cause was [*762] so vague that he was prevented from ascertaining that he was accused of a violation of section 120_6(il1(11) based on his testimony in the child custody hearing. With respect to a violation as a result of Dr. Grossman's testimony, the Order to Show Cause provided: COUNT TWO 17. Paragraphs 1 through 15 are incorporated by reference. 18. Based upon the foregoing Factual Allegations, the Board is authorized to suspend or revoke, or otherwise restrict Respondent's [Dr. Grossman] license, or impose a civil penalty under 6:3_P.s"JiJ2_08(a)(JJJ because Respondent's [Dr. Grossman] conduct of conducting a psychological evaluation andlor meeting with L.M. with respect to a custody proceeding without the knowledge or consent of her father, D.M., constituted unprofessional conduct in the practice of psychology. [**36] http://www3.1exisnexis.com/bcls/auth?cacheKey= 13 80200 1 &srv=ols _ GetADocRetrieve&... 2/16/2006 . LexisNexis(TM) Basic Case Law & Statutes I Search - 1 Result - 825 A.2d 748 Page 14 of 15 Order to Show Cause, February 14, 2000, Paragraphs 17-18 at 3; R.R. at 4a. In the "Violations and Sanctions" section of the Adjudication, the Board stated: The Respondent [Dr. Grossman] also engaged in unprofessional or immoral conduct, under Section 8(a)(11) of the Act, 63 P.S.g 1208. Even though Respondent [Dr. Grossman] did not meet with the father, the Respondent [Dr. Grossman] cast aspersions about the father's ability to parent L.M. Specifically, Respondent [Dr. Grossman] suggested that the father may have a caffeine addiction. (NT 139-142, 144, 272) While Respondent [Dr. Grossman] suggested that the mother also drinks coffee, Respondent [Dr. Grossman] only offered specific calculations about the father's consumption. Respondent [Dr. Grossman] also raised the issue of whether the father was able to care for L.M. because insurance salesmen often have to work at night. (N.T. 139-142, 144, 272) Both statements were specifically intended to call the father's fitness to parent into question. In that Respondent [Dr. Grossman] did not speak with the father about these issues, his speculation constitutes unprofessional conduct. The[**37] Board believes that a $ 1,000 civil penalty is appropriate for this violation. Adjudication at 20; R.R. at 360a. In an administrative proceeding, the essential elements of due process are notice and an opportunity to be heard. Wil~_\l~_Slgte60ard of VehicleJ'1anufactl,lcers, Pealers and Salespersons, 138.!'gLCommw. 50, 588 A.2d5ZL(Pa. CrnVIIltLJ991). "Notice, the most basic requirement of due process, must 'be reasonably calculated to inform interested parties of the pending action, and the information necessary to provide an opportunity to present objections. . . .'" Noetzel Y.~i3SqO;'l,_Jnc.. 3381'j'l.Super._45JL'!8UI,~2d 1372, 137Z(!'.-~ Super. 1985] cert. denied, 475JLS.l109,S9uL,. Ed. 2d 915,106 S. Q,L511J1986), quoting ~ennsylvania Coal Mininq Association V. Insurance~eQartme_nt, 471 POl. 4JZ,-452,'!53, 370 A.2d 685,_9_92,69:2-(977). Here, Count II of the Notice and Order to Show Cause incorporated all of the previous paragraphs. Count II stated that Dr. Grossman violated Section 8(aJ(11) oftbe Act because he conducted a custody evaluation andlor met with L.M. without D.M.'s consent. The Notice and Order[**38] to Show Cause did not mention Dr. Grossman's testimony at the custody trial. This Court agrees with Dr. Grossman that the Notice and Order to Show Cause failed to afford Dr. Grossman adequate notice and the opportunity to sufficiently prepare a defense to the challenge to his testimony at the custody trial. Although the Board's conclusions of law referenced Dr. Grossman's failure to obtain consent from D.M. [*763] before the custody evaluation with respect to Count II, it is apparent from the Violations and Sanctions section of the Adjudication that the Board found that Dr. Grossman violated Count II as a result of his testimony at the custody trial, not just the custody evaluation itself. This Court concludes Dr. Grossman did not receive adequate notice of this specific charge against him. As a result, this Court sustains Dr. Grossman's appeal as to Count II. Accordingly, this Court affirms in part and reverses in part. This Court affirms the Board as to the reprimand for Count I. This Court reverses the Board as to the $ 1,000 fine for Count II. BERNARD L. McGINLEY, Judge ORDER AND NOW, this 2nd day of June, 2003, the order of the State Board of Psychology[**39] in the above-captioned matter is affirmed in part and reversed in part. This Court affirms the State Board of Psychology's reprimand for Count I. This Court reverses the State Board of Psychology as to the $ 1,000 fine for Count II. BERNARD L. McGINLEY, Judge http://www3.lexisnexis.com/bcls/auth?cacheKey= 1380200 1 &srv=ols GetADocRetrieve&... 2/16/2006 CERTIFICATE OF SERVICE AND NOW, on this J 10-/1-... day of _Feb([A.(~V~ ,2006, I, Lynn B. Lowe, Secretary for J. Paul Helvy, Esquire, hereby certify that I have served a true and correct copy of the within document, via facsimile and first class mail, as follows: Jeanne B. Costopoulos, Esquire 3803 Old Gettysburg Road Camp Hill, PA 17011 McNEES WALLACE & NURICK LLC BY~'\J"Po. Jdw-e., Lynn B. Lowe, Secretary for J. Paul Helvy, Esquire I.D. No. 53148 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Phone: 717237-5229 Attorneys for Defendant -4- ....~., r_') ") :--1'1 -'1 '.':1 Ul r,o r' _u C:J .-< .~, STEVEN P. KISHBAUGH, SR., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 05-947 CIVIL TERM GLENDA A. KISHBAUGH-POLLILO, Defendant CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 23rd day of February, 2006, after hearing, all prior custody Orders are vacated and replaced with the following: 1. The parties shall share legal custody of their child, Steven P. Kishbaugh, II, with primary legal custody in Father. This means that Father may authorize participation in any activity or medical treatment without first obtaining the consent of Mother. Provided, however, that Mother is to be informed immediately, but in no event later than 24 hours after any such authorization is given. Further, both parties are entitled to access all of the child's medical, school, or any other records whatsoever. 2. During the school year, primary physical custody shall be with Father. Mother shall have partial physical custody of the child every other weekend from Friday after school until Monday at the commencement of school, commencing Friday, February 24, 2006. Mother shall also be entitled to partial physical custody with the child each Wednesday from after school until 7:30 p.m. 3. Primary physical custody shall be with Mother from after school on the last day of school before summer vacation commences until 5:00 p.m. on the Friday before school starts in the fall. Father shall have partial physical custody every other weekend from Friday at 5:00 p.m. until Sunday at 6:00 p.m. '. 4. Major Holidays Mother shall have custody of the child in even years and Father shall have custody of the child in odd years for the following holidays: a. Easter Eve (Saturday) at 5:00 p.m. until Easter Sunday at 5:00 p.m. b. July 4th from 9:00 a.m. until July 5th at 9:00 a.m. c. Labor Day from 9:00 a.m. until 5:00 p.m. d. The Friday following Thanksgiving from 9:00 a.m. until 5:00 p.m. e. Christmas Day at 12:00 p.m. until December 26th at 12:00 p.m. Father shall have custody of the child in even years and Mother shall have custody of the child in odd years for the following holidays: a. New Year's Day from 9:00 a.m. until 5:00 p.m. b. Memorial Day from 9:00 a.m. until 5:00 p.m. c. Thanksgiving Day from 9:00 a.m. until the next day (Friday) at 9:00 a.m. d. Christmas Eve at 12:00 p.m. until Christmas Day at 12:00 p.m. This section shall supersede any other section contained in this Order. 5. Mother's and Father's Days The child shall always be with Mother during Mother's Day and with Father during Father's Day. If the child is not otherwise with that parent, that parent shall have the child on their respective day for the period from 9:00 a.m. until 5:00 p.m. 6. Transportation Unless otherwise agreed upon, the party obtaining custody shall pick up the child from the '. o. residence of the other party. 7. Extracurricular activities Each party shall ensure that the child attends all regularly scheduled extracurricular activities. 8. Address and Phone Numbers of Parties Both Father and Mother must keep each other informed of any changes of address or change of phone number. Any changes in address or phone number shall be immediately forwarded to the other party. The parties shall also keep each other informed of a current e-mail address. The parties are directed to communicate daily with each other via e-mail, sharing events in their child's life, appointments, extracurricular activities, et cetera. The e-mail shall be instituted by the party having primary physical custody of the child and shall be responded to by the other party. 9. Alcohol and Drugs During any period of custody or visitation, the parties shall not possess or use any unprescribed controlled substance, neither shall they consume alcoholic beverages to the point of intoxication. The parties shall likewise assure that the child is not exposed to any other individuals who cannot comply with this prohibition. 10. Disparaging Remarks Neither Father nor Mother shall make any remarks in the presence of the child or otherwise do anything which may estrange the child from or injure the opinion of the child as to the other party or those closely associated with that party or which may hamper the free and natural development of the child's love or affection for the other party or those closely associated with that party. Under no circumstances shall adult issues involving the parties be discussed in the presence of the child. Neither party shall .. ., ~ argue with the other in the presence of the child. Neither party shall permit the child to remain in the company of any third parties who do not follow the provisions of this paragraph. 11. Neither party shall allow the child to play with or otherwise be exposed to video games that are not age appropriate. 12. Both parties shall immediately take steps to comply with recommendations 1 through 7 of Ms. Salem as contained in her letter of February 23, 2006. A hearing is scheduled before this Court on Wednesday, April 26, 2006, at 9:00 a.m., to review the progress the parties have made with implementing Ms. Salem's recommendations. Provided, however, that in lieu of the hearing the parties may file a joint stipulation detailing said progress. By /1)l.e-~ /~ / i.. / /~./ \.. . / /' , ! Edward E. Guido, J. Jeanne Costopoulos, Esquire For the Plaintiff J. Paul Helvy, Esquire For the Defendant ~ /}'yL,&-JJ., ;),)y,u(, ,-l '--r srs ""'-,) ,)1.... , , ,;;~