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HomeMy WebLinkAbout05-3733F \PILES\DATAPILE\G.,,.1\Cmrera" 1726.1000MP Created'. 9/20104 0:06PM Revised. 7/22/05 301PM Jennifer L. Spears, Esquire MARTSON DEARDORFF WILLIAMS & OTTO I.D. 87445 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff TAMMY L. NICKEL, Plaintiff V. JAMES W. NICKEL, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05- ,3733 CIVIL ACTION - LAW IN CUSTODY PLAINTIFF'S COMPLAINT TO CONFIRM CUSTODY 1. Plaintiff is Tammy L. Nickel, an adult individual currently residing with a friend in Cumberland County, Pennsylvania. Her location will remain undisclosed at this time for fear of her safety and her children's. 2. Defendant is James W. Nickel, an adult individual currently residing at 107 Yates Street, Mt. Holly Springs, Cumberland County, Pennsylvania. 3. Plaintiff seeks custody of the child, Jamie Nickel, who was born on November 14, 2001. The child was born during the marriage. 4. Since the child's birth, the child has resided with the following persons at the following addresses for the following periods of time: From To With Whom Addresses Birth 7/21/05 Mother, Father, 107 Yates Street Tricia Ruzycki (%2 sister), Mt. Holly Springs, PA Gavin Nickel (%2 brother), & Nichole Nickel ('/2 sister) 7/21/05 Present Mother & Tricia Mother's friend's house in Carlisle, PA 5. The relationship of the Plaintiff to the child is that of Mother. She and Father are married and living separately. The Plaintiff currently resides with the following: Name Tricia Ruzycki Jamie Nickel Relationship Daughter Daughter 6. The relationship of the Defendant to the child is that of Father. He is married and living separately. The Defendant currently resides with the following: Name Gavin Nickel Nichole Nickel Relationship Son Daughter 7. The parties have not participated in previous litigation concerning the custody of the child in this court or any court. 8. The Plaintiffhas no information of a custody proceeding concerning the child pending in any other court. 9. The best interests of the child will be served if shared legal and primary physical custody of her is confirmed in Plaintiff. 10. Plaintiff does not know of any person not a party to these proceedings who claims to have custody or visitation rights with respect to the child. WHEREFORE, Plaintiff requests your Honorable Court to set a time and place for a hearing at which Plaintiff requests the Court to grant her the Custody Order. Pending said hearing, Plaintiff requests primary physical custody. MARTSON DEARDORFF WILLIAMS & OTTO By Jenni L. Spears, Esquire Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff Date: VERIFICATION The foregoing Complaint to Confirm Custody is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of the document is that of counsel and not my own. I have read the Complaint and to the extent that the document is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the document is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities, which provides that if I make knowingly false averments, I may be subject to criminal penalties. A 64 T . y L. Nick 4K \ U? r TAMMY L. NICKEL IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. 05-3733 CIVIL ACTION LAW JAMES W. NICKEL DEFENDANT IN CUSTODY ORDER OF COURT AND NOW, Wednesday, July 27, 2005 , upon consideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear before Jacqueline M. Verney, Esq. , the conciliator, at 4th Floor, Cumberland County Courthouse, Carlisle on Tuesday, August 30, 2005 at 9:30 AM for a Pre-Hearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute; or if this cannot be accomplished, to define and narrow the issues to be heard by the court, and to enter into a temporary order. All children age five or older may also be present at the conference. Failure to appear at the conference may provide grounds for entry of a temporary or permanent order. The court hereby directs the parties to furnish any and all existing Protection from Abuse orders, Special Relief orders, and Custody orders to the conciliator 48 hours prior to scheduled hearing. FOR THE COURT. By: ls/ ac vvKne M. Verney, Esq. Custody Conciliator The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilites Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. YOU SHOULD TAKE THIS PAPER TO YOUR ATTORNEY AT ONCE. IF YOU DO NOT HAVE AN ATTORNEY OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 0 no L 9 :Z '11 67 7T SGOI U" , -OTH F:\FILES\DATA LE\Gmcral\Cumnt\II726.1. ws Crcatffi 9/20/04 0:WM Rnv , 7Q7/05 3'.28PM Jennifer L. Spears, Esquire MARTSON DEARDORFF WILLIAMS & OTTO I.D. 87445 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff TAMMY L. NICKEL, Plaintiff V. JAMES W. NICKEL, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-3733 CIVIL ACTION - LAW IN CUSTODY ATTORNEY'S ACCEPTANCE OF SERVICE I, Michael A. Scherer, Esquire, attorney for Defendant James W. Nickel in the above-captioned action, hereby accept service of the Custody Complaint in the above action on 14, d ? 1, 2 0°? on Defendant's behalf and certify that I am authorized to do so. Michael A. cherer Dated: A-tvb r 1, zgor r-, ,-> ?, -n _ ^?"?-I'i J.^ ?? 1 ? ro - : -':1 i i ., :: r=: c? y TAMMY L. NICKEL, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2005-3733 CIVIL TERM JAMES W. NICKEL, : CIVIL ACTION - LAW Defendant IN CUSTODY ORDER OF COURT AND NOW, this -L-9- day of !?cT2005, upon consideration of the attached Custody Conciliation eport?R , it is ordered and directed as follows: 1. The Mother, Tammy L. Nickel, and the Father, James W. Nickel, shall have shared legal custody of Jamie Nickel, born November 14, 2001. Each parent shall have an equal right, to be exercised jointly with the other parent, to make all major non- emergency decisions affecting the Child's general well-being including, but not limited to, all decisions regarding her health, education and religion. 2. Mother shall have primary physical custody of the child. Father shall have the following periods of partial physical custody of the child: A. Alternating weekends from Friday at 7:30 a.m. to Sunday at 2:00 p.m. However, when Father's work outage coincides with his alternating weekend, Father shall be entitled to one additional overnight either prior to or added to the end of Father's weekend. B. Every Tuesday and Thursday from 7:30 a.m. to 2:00 p.m. 4. Father shall have physical custody of the child on Labor Day, 2005 from Friday at 7:30 a.m. to Monday at 2:00 p.m. 5. In the event that either parent is in need of a babysitter for more than two hours, the custodial parent shall contact the non-custodial parent and offer said time to the non-custodial parent who must be available to care for the child personally during that time. 6. The parties shall share transportation such that they shall meet at Letort Park to transfer custody. i AU- - i s0 7. The parties shall have reasonable telephone contact with the child consisting of two telephone calls per day. 8. This Order is entered pursuant to a Custody Conciliation Conference. The parties may modify the provisions of this Order by mutual consent. In the absence of mutual consent, the terms of this Order shall control. Another Conciliation Conference is scheduled for November 18, 2005 at 8:30 a.m. BY THE COURT, cc: Jennifer Spears, Esquire, Counsel for Mother Michael A. Scherer, Esquire, Counsel for Father TAMMY L. NICKEL, Plaintiff V. JAMES W. NICKEL, Defendant PRIOR JUDGE: None : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA :2005-3733 CIVIL TERM CIVIL ACTION - LAW IN CUSTODY CUSTODY CONCILIATION SUMMARY REPORT IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE 1915.3-8, the undersigned Custody Conciliator submits the following report: 1. The pertinent information concerning the Child who is the subject of this litigation is as follows: NAME DATE OF BIRTH CURRENTLY IN CUSTODY OF Jamie Nickel November 14, 2001 Mother 2. A Conciliation Conference was held in this matter on August 30, 2005, with the following individuals in attendance: the Mother, Tammy L. Nickel, with her counsel, Jennifer Spears, Esquire and Father, James W. Nickel, with his counsel, Michael A. Scherer, Esquire. 3. The parties agreed to the entry of an Order in the form as attached. q-a -D S' Date /?."?/ acq line M. Verney, Esquire Custody Conciliator T 77 NnV 1 4 2005 TAMMY L. NICKEL, : IN THE COURT OF COMM Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. :2005-3733 CIVIL TERM JAMES W. NICKEL, : CIVIL ACTION - LAW Defendant IN CUSTODY ORDER OF COURT AND NOW, this 14`h day of November, 2005, having been advised that the parties have reconciled, the Conciliator hereby relinquished jurisdiction in this matter. FOR THE COURT, r" c Jan--.? R-1 Jae Wine M. Verney, Custody Conciliatory [ N ?'; ?, ?:--. L11 ?-? c - 'Y ' - _ ._' ??, . tip _ -y C --- _.l_ ? M ?-.S. , C7 :a <-? t t TAMMY L. NICKEL, Plaintiff V. JAMES W. NICKEL, Defendant : IN THE COURT OF COMMON PLEAS OF n : CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-3733 CIVIL TERM CIVIL ACTION- CUSTODY PLAINTIFF'S PETITION TO MODIFY CUSTODY ORDER T1-.> l?J c-, I. The subject of this Petition is Jamie Nickel, who is four years old, having been born on November 14, 2001. 2. On September 6, 2005, this Court entered an order that essentially gave primary physical --E Custody of Jamie to Plaintiff, with periods of partial custody in Defendant. A copy of the September 6, 2005 order is attached hereto, marked Exhibit A and incorporated herein by reference. 3. Since the advent of the partial custody schedule, Defendant has taken many actions with respect to Jamie that are inappropriate; those actions include, but are not limited to, showering with Jamie, allowing other relatives to care for Jamie in violation of the existing order, coloring Jamie's hair, and consuming alcohol and other narcotics while Jamie is in Defendant's care. 4. In view of the circumstances described above, Plaintiff believes and therefore avers that the existing order should be modified to curtail Defendant's partial custody, or possibly to include only supervised visitation for the Defendant. WHEREFORE, Plaintiffrequests this Honorable Court to modify the existing Custody Order as described above, and to provide any other relief that 2 z"a deems appropriate. Attorney for Pla 407 North Front Harrisburg, PA NLM1 (717) 238-3686 Supreme Court I.D. # 53729 ' V 10, W V? t CJ fir, ? y i^I ?1? -11 TAMMY L. NICKEL IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. JAMES W. NICKEL DEFENDANT 05-3733 CIVIL ACTION LAW IN CUSTODY ORDER OF COURT AND NOW, Thursday, July 27, 2006 , upon consideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear before Jacqueline M. Verney, Esq. , the conciliator, at 4th Floor, Cumberland County Courthouse, Carlisle on Tuesday, August 29, 2006 at 9:30 AM for a Pre-Hearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute; or if this cannot be accomplished, to define and narrow the issues to be heard by the court, and to enter into a temporary order. All children age five or older may also be present at the conference. Failure to appear at the conference may provide grounds for entry of a temporary or permanent order. The court hereby directs the parties to furnish any and all existing Protection from Abuse orders, Special Relief orders, and Custody orders to the conciliator 48 hours prior to scheduled hearing. FOR THE COURT. By: /s/ Jacqueline M. Verney, Esq. Custody Conciliator IAA'' The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilites Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. YOU SHOULD TAKE THIS PAPER TO YOUR ATTORNEY AT ONCE. IF YOU DO NOT HAVE AN ATTORNEY OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 %Ojqe- L TAMMY L. NICKEL, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2005 - 3733 CIVIL TERM JAMES W. NICKEL, : CIVIL ACTION - LAW Defendant IN CUSTODY PETITION FOR CONTEMPT 1. The petitioner is James W. Nickel (hereinafter referred to as "Father"), an adult individual currently residing at 107 Yates Street, Mount Holly Springs, Cumberland County, Pennsylvania, 17065-1019. 2. The respondent is Tammy L. Nickel (hereinafter referred to as "Mother"), an adult individual currently residing at 600 North Baltimore Avenue, Apartment K, Mount Holly Springs, Cumberland County, Pennsylvania, 17065-1918. 3. The parties are the parents of Jamie L. Nickel, born November 14, 2001. 4. The parties are governed by an Order dated September 6, 2005, a copy of which is attached hereto as "Exhibit A". 5. Mother has primary physical custody under the Order, however, Father has substantial partial custody of the child under the Order. 6. Paragraph five (5) of the Custody Order provides that if either parent is in need of a babysitter for in excess of two hours, the non-custodial parent has the first opportunity to provide babysitting. 7. On Monday, August 7, 2006, Mother posted a note on Father's door indicating that Father would not be seeing the child thereafter, and the note provided no additional details. 8. On or about August 9, 2006, undersigned counsel spoke to Mother's attorney, Anthony T. McBeth, Esquire, who explained that Mother was withholding custody of the child from Father because of Mother's belief that Father was engaging her in a dangerous activity with the child, namely, riding a four-wheeler with the child. 9. Attorney McBeth indicated that he would speak to Mother regarding Mother's unilateral refusal to follow the September 6, 2005 Order, but undersigned counsel has not heard back from Attorney McBeth regarding this matter. 10. The parties have shared legal custody of the child pursuant to the September 6, 2005 Order. 11. Recently, Mother changed daycare arrangements for the child without consultation with Father in violation of the shared legal custody arrangement. 12. After undersigned counsel spoke with Attorney McBeth regarding this matter, father informed undersigned counsel that he has an annual company picnic at Hersheypark on August 26, 2006, and he has an entry ticket and meal ticket for the child. 13. Father is concerned that child will miss the picnic because of mother's refusal to allow the child to see father. 14. Undersigned counsel left a message on Attorney McBeth's email on August 16, 2006 regarding the Hersheypark issue but has not heard back from Attorney McBeth on that issue. WHEREFORE, undersigned counsel respectfully requests this Honorable Court find Mother in contempt for refusing Father his periods of partial physical custody under the Order and for Mother's unilateral change in daycare without consultation with Father; and Father respectfully requests that this Honorable Court Order Mother to deliver the child to Father for purposes of attending Father's company picnic. Respectfully submitted, O'BRIEN, BARIC & SCHERER J$A-4, Michael K. Scherer, Esquire I.D. # 61974 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 TAMMY L. NICKEL, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2005 - 3733 CIVIL TERM JAMES W. NICKEL, : CIVIL ACTION - LAW Defendant IN CUSTODY VERIFICATION I verify that the statements made in the foregoing Petition for Contempt are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. § 4904, relating to unsworn falsification to authorities. /Jam es W. Nickel Date: August ?? , 2006 CERTIFICATE OF SERVICE I hereby certify that &05+ , 2006, I, Andrea M. Barrick, secretary of O'Brien, Baric & Scherer, did serve a copy of the Petition for Contempt, by first class U.S. mail, postage prepaid, to the party listed below, as follows: Anthony T. Mcbeth, Esquire 407 North Front Street Cameron Mansion Harrisburg, Pennsylvania 17101 Andrea M. Barrick S 3?., C? c> nip N 3 C e _ i F `l 73C c C] 4UG 2 2 2006 TAMMY L. NICKEL, V. Plaintiff JAMES W. NICKEL, Defendant A ub-sj 2 K, 20° `, AND NOW, upon consideration n IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO, 2005 - 3733 CIVIL TERM CIVIL ACTION - LAW IN CUSTODY ORDER of the Petition for Contempt filed by the Father, James W. Nickel, the Petition shall be referred to the conciliation set in this matter for Thursday, August 31, 2006 at 10:30 a.m. before conciliator Jacqueline Verney, Esquire. IT IS FURTHER ORDERED that father shall have custody of the child beginning at 5:00 p.m. on August 25, 2006 until 5:00 p.m. on August 27, 2006 so that the child can attend Father's company picnic at Hersheypark. -r14 IS o2Df2 4>- Le-cm tss?edt s ? wUt &e- 61?. P2Atc a ;? . 11 7L?? xJ?lei r''•--' 8e l 2f l`T, \ "C r o wt t l " V,t, 2 ( V??r L CHeS?? . Michael A. Scherer, Esquire O'Brien, Baric & Scherer 19 West South Street Carlisle, Pennsylvania 17013 J VAnthony T. McBeth, Esquire 407 North Front Street, First Floor Harrisburg, Pennsylvania -?nj`!> a ccAfU?(G ..?t? 144P e SSe-l-ttCtr G(1CJ1 S BY THE COURT, a a' ;?- 1-C e) ' 3 C1_ C . O- J LLl C.0 . :sit i w S ? -C il. N V ' G SEP ;? 9 20" TAMMY L. NICKEL, : IN THE COURT OF COMMON PL-I.f` Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2005-3733 CIVIL ACTION - L.,kW JAMES W. NICKEL, Defendant : IN CUSTODY ORDER OF COURT AND NOW, this day of Se V" - , 2006, upon consideration of the attached Custody Conciliation Report, it is ordered and directed as follows: 1. A Hearing is scheduled in Court Room No. , of the Cumberland County Court House, on the -5A,0(- day of xi , 2002, at 30 o'clock, ---4. M., at which time testimony w 1 be take For purposes of this Hearing, the Mother shall be deemed to be the moving party and shall proceed initially with testimony. Counsel for each party shall file with the Court and opposing counsel a Memorandum setting forth each party's position on custody, a list of witnesses who will be 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. 2. Pending further Order of Court or agreement of the parties, the prior Order of Court dated September 6, 2005 shall remain in full force and effect, with the following additions: 3. Holidays: A. Mother shall have physical custody of the child for Labor Day. B. Thanksgiving shall be shared such that Mother shall have physical custody of the child from 9:00 a.m. to 3:00 p.m. and Father shall have physical custody of the child from 3:00 p.m. to 9:00 p.m. C. Christmas shall be divided into two blocks. Block A shall be from Christmas Eve at 12:00 noon to Christmas Day at 12:00 noon. Block B shall be from Christmas Day at 12:00 noon to December 26 at 12:00 noon. Mother shall have Block A in even numbered years and Block B in odd numbered years. Father shall have Block A in odd numbered years and Block B in even numbered years. 4. Testimony concerning the contempt allegations shall be heard at the hearing. >-- =°?a ?._ ,,? ?,; _. 61 ??' i ?„ L.!_ t'? - _ 5. The parties may modify this Order by mutual agreement. In the absence of mutual consent, the terms of this Order shall control. cc: Anthony T. McBeth, Esquire, counsel for Mother Michael A. Scherer, Esquire, counsel for Father 9/4,106 -tr4l-' ten` z? BY THE COURT, TAMMY L. NICKEL, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2005-3733 CIVIL ACTION - LAW JAMES W. NICKEL, Defendant : IN CUSTODY PRIOR JUDGE: J. Wesley Oler, Jr., J. CUSTODY CONCILIATION SUMMARY REPORT IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE 1915.3-8, the undersigned Custody Conciliator submits the following report: 1. The pertinent information concerning the Child who is the subject of this litigation is as follows: NAME DATE OF BIRTH CURRENTLY IN CUSTODY OF Jamie Nickel November 14, 2001 Mother 2. A Conciliation Conference was held August 31, 2006 with the following individuals in attendance: The Mother, Tammy L. Nickel, with her counsel, Anthony T. McBeth, Esquire, and the Father, James W. Nickel, with his counsel, Michael A. Scherer, Esquire. 3. The Honorable J. Wesley Oler, Jr. previously entered an Order of Court dated September 6, 2005 providing for shared legal custody, Mother having primary physical custody and Father having periods of partial physical custody. In response to a Petition for Contempt filed by Father, the Honorable J. Wesley Oler, Jr. entered an Order August, 2006, providing Father with partial physical custody from August 25 to August 27, 2006 and referring the Contempt Petition to the Conciliator. Also before the Conciliator was Mother's Petition to Modify. 4. Mother's position on custody is as follows: Mother seeks shared legal and primary physical custody, with Father having alternating weekends. This decreases the time that Father currently has with the child. Mother alleges that the child, while riding on a four-wheeler, with her Father and his girlfriend, tipped over causing grave risk of harm to the child. In addition, Mother asserts that the Father takes showers with the child and walks around the house in his underwear, exposing himself to the child. She claims that Father works the night shift and sleeps during the day while the child is in his custody. 5. Father's position on custody is as follows: Father seeks shared legal and shared physical custody of the child on a week on/week off basis. Father asserts that he and Mother live in close proximity and he has been babysitting the child almost daily. 6. Father's Petition for Contempt alleges that Mother violated the Court Order by denying him all custody for a two week period, to include his alternating weekend, his Tuesday and Thursday from 7:30 a.m. to 2:00 p.m. and did not offer babysitting time as required by the Court Order. 7. The Conciliator recommends an Order in the form as attached scheduling a Hearing and continuing the prior Order of Court. Testimony on the Contempt allegations should also be heard at the hearing in this matter. It is expected that the Hearing will require one day. 9 -1 --ok Date ac eline M. Verney, Esquire Custody Conciliator TAMMY L. NICKEL, Plaintiff V. JAMES W. NICKEL, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005 - 3733 CIVIL TERM CIVIL ACTION - LAW IN CUSTODY PETITION TO MODIFY CUSTODY 1. The Petitioner is James W. Nickel, (hereinafter referred to as "Father"), who is an adult individual residing at 107 Yates Street, Mount Holly Springs, Cumberland County, Pennsylvania, 17065. 2. The Respondent is Tammy L. Nickel, (hereinafter referred to as "Mother"), who is an adult individual residing at 600 North Baltimore Avenue, Apartment K, Mount Holly Springs, Cumberland County, Pennsylvania, 17065. 3. The parties are the natural parents of Jamie L. Nickel, born November 14, 2001, I (hereinafter referred to as "Child"). 4. The parties are governed by a Order dated September 6, 2005, a copy of which is attached hereto as "Exhibit A", relative to the custody of the child. i 5. Mother filed a Petition to modify custody on June 27, 2006. A conciliation was I conducted on August 31, 2006 relative to Mother's Petition to modify custody. 6. A hearing has been set on Mother's Petition to modify custody for January 3, 2007 at 9:30 a.m. 7. Father believes it would be in the best interest of the child for Father to have primary physical custody. A t, WHEREFORE, Father respectfully requests that this Honorable Court award Father primary physical custody of the child at the hearing set in this matter for January 3, 2007. Respectfully submitted, O'BRIEN, BARIC & SCHERER Michael A. Scherer, Esquire I. D. # 61974 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 masMomesticlNickellmoditylpet A R S C Z_ TAMMY L. NICKEL, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2005-3733 CIVIL TERM JAMES W. NICKEL, : CIVIL ACTION - LAW Defendant IN CUSTODY ORDER OF COURT AND NOW, this day of , 2005, upon consideration of the attached Custody Conciliation eport, it is ordered and directed as follows: I . The Mother, Tammy L. Nickel, and the Father, James W. Nickel, shall have shared legal custody of Jamie Nickel, born November 14, 2001. Each parent shall have an equal right, to be exercised jointly with the other parent, to make all major non- emergency decisions affecting the Child's general well-being including, but not limited to, all decisions regarding her health, education and religion. 2. Mother shall have primary physical custody of the child. 3. Father shall have the following periods of partial physical custody of the child: A. Alternating weekends from Friday at 7:30 a.m. to Sunday at 2:00 p.m. However, when Father's work outage coincides with his alternating weekend, Father shall be entitled to one additional overnight either prior to or added to the end of Father's weekend. B. Every Tuesday and Thursday from 7:30 a.m. to 2:00 p.m. 4. Father shall have physical custody of the child on Labor Day, 2005 from Friday at 7:30 a.m. to Monday at 2:00 p.m. 5. In the event that either parent is in need of a babysitter for more than two hours, the custodial parent shall contact the non-custodial parent and offer said time to the non-custodial parent who must be available to care for the child personally during that time. 6. The parties shall share transportation such that they shall meet at Letort Park to transfer custody. EXHIBIT "A" 7. The parties shall have reasonable telephone contact with the child consisting of two telephone calls per day. 8. This Order is entered pursuant to a Custody Conciliation Conference. The parties may modify the provisions of this Order by mutual consent. In the absence of mutual consent, the terms of this Order shall control. Another Conciliation Conference is scheduled for November 18, 2005 at 8:30 a.m. BY THE COURT, cc: Jennifer Spears, Esquire, Counsel for Mother Michael A. Scherer, Esquire, Counsel for Father TAMMY L. NICKEL, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2005 - 3733 CIVIL TERM JAMES W. NICKEL, : CIVIL ACTION - LAW Defendant IN CUSTODY VERIFICATION I verify that the statements made in the foregoing Petition To Modify Custody are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. § 4904, relating to unsworn falsification to authorities. Date: f , 2006 J TAMMY L. NICKEL, Plaintiff V. JAMES W. NICKEL, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2005 - 3733 CIVIL TERM CIVIL ACTION - LAW IN CUSTODY CERTIFICATE OF SERVICE I hereby certify that on October 3, 2006, I, Andrea M. Barrick, of O'Brien, Baric & Scherer, did serve a copy of the Petition to Modify Custody, by first class U.S. mail, postage prepaid, to the party listed below, as follows: Anthony T. McBeth, Esquire 407 North Front Street Cameron Mansion Harrisburg, Pennsylvania 17101 Andrea M. Barrick, Secretary '-N r_.". --n W?? t 1 ?J CO, Y? TAMMY L. NICKEL, Plaintiff V. JAMES W. NICKEL, Defendant OCT 0 4 2006 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2005 -3733 CIVIL TERM CIVIL ACTION - LAW IN CUSTODY ORDER OF COURT AND NOW this It day of October, 2006, Father's Petition To Modify Custody shall be heard at the hearing set in this matter for January 3, 2007 at 9:30 a.m. in Courtroom No. 1 of the Cumberland County Courthouse, Carlisle, Pennsylvania. BY TH COURT BY C , /I - I, Wesley r, YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OF CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 (717) 249-3166 ichael A. Scherer, Esquire O'Brien, Baric & Scherer 19 West South Street Carlisle, Pennsylvania 17013 J ?^nthony T. McBeth, Esquire 407 North Front Street, First Floor Harrisburg, Pennsylvania 17101 c. 17, A d tY ? 5 t TAMMY L. NICKEL, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 2005-3733 CIVIL TERM JAMES W. NICKEL, : CIVIL ACTION - CUSTODY Defendant PRAECIPE FOR WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Please withdraw my appearance in the above-captioned matter on behalf of the Plaintiff. Respectfully Submitted Date (Xnthony T. WINeth, E 407 N. Front St et Harrisburg, 1 101 (717) 238-3686 Attorney for Plaintiff PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY OF SAID COURT: Please enter the appearance of Galen R. Waltz, Esquire, on behalf of the Plaintiff in the above-captioned case. Respectfully Submitti TURO LAW OFFICE ? ?AC" i ?wig Date alen R. Waltz, Ec 28 S. Pitt Street Carlisle, PA 17013 717-245-9688 c_ `? ?,-. ? : a ? N . T , ? 4m ? ? 1? } ?.. ....,.. °? S ? t t' ?_ .3 t ; 's"1 ? .y/°"?f .. ?y y U? ...-- '? TAMMY L. NICKEL, : IN THE COURT OF COMMON PLEAS Plaintiff/Petitioner : CUMBERLAND COUNTY, PENNSYLVANIA V. : No. 2005-3733 CIVIL TERM JAMES W. NICKEL : CIVIL ACTION - LAW Defendant/Respondent : IN CUSTODY PLAINTIFF'S ANSWER TO PETITION FOR CONTEMPT AND COUNTER PETITION FOR CONTEMPT TO THE HONORABLE, THE JUDGE OF SAID COURT: The following is represented: 1. Admitted 2. Admitted. 3. Admitted 4. Admitted. 5. Admitted in part denied in part. By way of further answer, it is denied that father has substantial partial custody. Proof of same is demanded at hearing. 6. Admitted. 7. Admitted in part denied in part. By way of further answer, Mother placed a note on Father's door on Tuesday, August 8, 2006; it is Denied that Petitioner placed a note on Respondent's door on Monday, August 7, 2006. 8. Neither admitted or denied. By way of further answer, Mother has no way of knowing when Attorney Scherer did or did not speak with Attorney McBeth as well as what the content of any alleged conversation may have been. 9. Neither admitted or denied. By way of further answer, Mother has no way of knowing what Attorney McBeth said, if anything, to Attorney Scherer. 10. Admitted 11. Denied. Petitioner informed Respondent that the child would no longer come to his house during the day while she worked due to the facts that Respondent either leaves the child with neighbors or his mother or he sleeps all day instructing the child to stay in her bedroom. Petitioner was also concerned for the safety of her child after the child was involved in a ATV accident while in the custody and care of Respondent. 12. Neither admitted or denied. By way of further answer, Mother has no way of knowing the content of discussions between Father and his attorney. Furthermore, the Honorable Wesley Oler, Judge, entered an Order directing that father have custody of the child on August 27, 2006, and the child did attend the company picnic with father. Therefore, the issue is moot. 13. Neither Admitted or denied. By way of further answer, the child did attend the August 27, 2006 picnic. Therefore, the issue is moot. 14. Neither admitted or denied. By way of further answer, Mother has no way of knowing the correspondences between Attorney Sherer and Attorney McBeth. PETITION FOR CONTEMPT 15. Paragraphs one through fourteen are incorporated herein as if fully set forth. 16. Specifically at paragraph 1, the September 6, 2005 Custody Order states: "Each parent shall have an equal right, to be exercised jointly with the other parent, to make all major non-emergency decisions affecting the Child's general well-being including, but not limited to, all decisions regarding her health, education and religion." (Exhibit A and incorporated herein as if fully set forth). 17. In March of 2006, Respondent enrolled child into swimming lessons, without the consent of Petitioner. The child did not want to go to the lessons and refused to attend. 18. Respondent took child to Myrtle Beach, South Carolina July 7, 2006 - July 14, 2006 without the consent of Petitioner. While the child was at Myrtle Beach Petitioner had no way of contacting the child. 19. Respondent did not consult with Petitioner concerning a school field trip on October 2, 2006. 20. Respondent dyed the child's hair light blond, without the consent of Petitioner. 21. On October 20, 2006, without consulting Petitioner, Respondent did not take the child for school. Respondent instead took the child to his mother's house and the child spent the day with her paternal grandmother. 22. On October 27, 2006 Respondent deceived Petitioner concerning the child's whereabouts. Respondent told Petitioner the child was taking a nap when in reality the child was with her paternal grandmother at the Dr's office for treatment of poison ivy on her leg. The Paternal Grandmother did not have the Petitioner's consent to take the child to the doctors. 23. On repeated occasions the child has come home from Respondents house with a yeast infection. The causes of the yeast infections are due to the fact that the child does not change her underwear while she is in the custody of Respondent. 24. Specifically at paragraph five, the September 6, 2006 Custody Order states: "in the event that either parent is in need of a babysitter for more than two hours, the custodial parent shall contact the non-custodial parent and offer said time to the non-custodial parent who must be available to care for the child personally during that time." 25. On the following dates Respondent did not contact Petitioner in regards to the need for a babysitter; the child was in the custody of her paternal grandmother: a. May 25, 2006 - Child stayed with paternal grandmother all day. b. June 14, 2006 - Child stayed with paternal grandmother all day. C. June 20, 2006 - Child stayed with paternal grandmother all day. d. June 22, 2006 - Child stayed with paternal grandmother all day. e. June 28, 2006 - Child stayed with paternal grandmother all day. f. June 30, 2006 - Child stayed with paternal grandmother all day. g. September 6, 2006 - Child stayed with paternal grandmother from 5:30 a.m. until 1:00 p.m. h. September 11, 2006 - Child stayed with paternal grandmothers from 5:20 a.m. until 1:00 p.m. i. September 13, 2006 - Child was in the custody of paternal grandmother from 5:20 a.m. until 3:30 p.m. Grandmother dropped child off at school and picked the child up from school. Grandmother refused to admit to Petitioner concerning grandmother having the child. j. September 26, 2006 - Child was in the custody of paternal grandmother the entire day. k. October 10, 2006 - Child was in the custody of paternal grandmother the entire day. 1. October 28, 2006 - Child was at a cheerleading competition with paternal grandmother and not in the custody of Respondent. M. November 1, 2006 - Paternal grandmother picked the child up from school and kept the child the rest of the day. n. November 3, 2006 - Paternal grandmother took the child to school, picked the child up from school and kept the child the rest of the day. 26. Specifically at paragraph 7 of the September 6, 2006 Custody order, it states: "The parties shall have reasonable telephone contact with the child consisting of two telephones calls per day. " 27. Petitioner was unable to contact the child, while the child was in the custody of Respondent, on the following dates: a. July 7, 2006 through July 14, 2006 - Child was at Myrtle Beach, South Carolina without the consent of the Petitioner. b. September 15, 2006 - Petitioner attempted to contact the child six different times between 11:45 a.m. and 5:00 p.m. No one answered the phone. 27. On repeated occasions the Respondent has either rushed the child off of the phone while the child was talking to Petitioner or the Respondent would refuse to put the child on the phone when Petitioner has called. 28. When the child is in the custody of Respondent, she does not have adequate supervision or care. a. September 7, 2006 - While child was in the custody of the Respondent, the father slept all day. Child was instructed by Respondent to stay in her bedroom the entire time. b. The child does not get fed on a regular basis while in the care and custody of Respondent. C. Respondent leaves the child with his neighbors who do not provide proper supervision for the child. d. October 26, 2006 - Respondent slept all day while the child was instructed to stay in her bedroom and not to answer the phone. e. While in the custody of Respondent, child has been hit by Gaven, a 14-year-old boy who lives with Respondent. f. While in the custody of Respondent, child was riding a four- wheeled ATV made for one person. The child was on the ATV with three other people and no helmet. The ATV crashed and as a result the child suffered minor scratches on her arm. 29. Respondent drinks alcohol in the presence of the child and has offered the child a beer on at least one occasion. 30. On the following dates Respondent has been late to drop off and/or pick up the child and did not attempt to contact Petitioner and inform her: a. October 5, 2006 - Father was 15 minutes late. b. October 23, 2006 - Father was 35 minutes late. C. October 24, 2006 - Father was 30 minutes late. d. October 25, 2006 - Father was 30 minutes late. e. October 26, 2006 - Father was 30 minutes late. 31. Respondent has instructed the child not to tell the Petitioner what Respondent does. 32. Respondent has kept the child from communicating with Petitioner on numerous occasions. 33. Petitioner is concerned for the welfare and safety of her child. WHEREFORE, Petitioner respectfully requests this Honorable Court find father in Contempt of the September 6, 2006 Custody Order and direct him to pay all reasonable costs and attorney fees relative to this petition. DATE: AX ) v, Respectfully Submitted, glen R. Waltz, Esqu' Turo Law Offices 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiff/Petitioner VERIFICATION I verify that the statements made in the foregoing Answer to Petition for Contempt and Counter Petition for Contempt are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsown falsification to authorities. i Date Tammy L. I 1 TAMMY L. NICKEL, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2005-3733 CIVIL TERM JAMES W. NICKEL, : CIVIL ACTION - LAW Defendant IN CUSTODY ORDER OF COURT AND NOW, this /, 9 day of _ !?p4 , 2005, upon consideration of the attached Custody Conciliation'1Zeport, it is ordered and directed as follows: 1. The Mother, Tammy L. Nickel, and the Father, James W. Nickel, shall have shared legal custody of Jamie Nickel, born November 14, 2001. Each parent shall have an equal right, to be exercised jointly with the other parent, to make all major non- emergency decisions affecting the Child's general well-being including, but not limited to, all decisions regarding her health, education and religion. 2. Mother shall have primary physical custody of the child. 3. Father shall have the following periods of partial physical custody of the child: A. Alternating weekends from Friday at 7:30 a.m. to Sunday at 2:00 p.m. However, when Father's work outage coincides with his alternating weekend, Father shall be entitled to one additional overnight either prior to or added to the end of Father's weekend. B. Every Tuesday and Thursday from 7:30 a.m. to 2:00 p.m. 4. Father shall have physical custody of the child on Labor Day, 2005 from Friday at 7:30 a.m. to Monday at 2:00 p.m. 5. In the event that either parent is in need of a babysitter for more than two hours, the custodial parent shall contact the non-custodial parent and offer said time to the non-custodial parent who must be available to care for the child personally during that time. 6. The parties shall share transportation such that they shall meet at Letort Park to transfer custody. i r ? ?t 7. The parties shall have reasonable telephone contact with the child consisting of two telephone calls per day. 8. This Order is entered pursuant to a Custody Conciliation Conference. The parties may modify the provisions of this Order by mutual consent. In the absence of mutual consent, the terms of this Order shall control. Another Conciliation Conference is scheduled for November 18, 2005 at 8:30 a.m. BY THE COURT, cc: Jennifer Spears, Esquire, Counsel for Mother Michael A. Scherer, Esquire, Counsel for Father TRUE- COPY FROM, RECORD CERTIFICATE OF SERVICE I, Galen R. Waltz, Esquire hereby certify that I served a true and correct copy of the Answer to Petition for Contempt and Counter Petition for Contempt, by first class, postage pre-paid and depositing same in the United States Mail, first class, postage on the 1Y Mday of /4/0 y?e? -4 pre-paid 2006, from Carlisle, Pennsylvania, addressed as follows: Michael A. Shearer, Esquire O'Brien, Baric & Shearer 19 West South Street Carlisle, PA 17013 Attorney for Defendant/Respondent 28 South Pitt Stree? Carlisle, PA 17013 (717) 245-9688; FAX 717.245.2165 TURO LAW OFFICES n s? TAMMY L. NICKEL, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW JAMES W. NICKEL, Defendant NO. 05-3733 CIVIL TERM ORDER OF COURT AND NOW, this 17`h day of November, 2006, upon consideration of Defendant's Petition for Contempt, and of Plaintiff's Answer to Petition for Contempt and Counter Petition for Contempt, a hearing is scheduled for Wednesday, January 3, 2007, at 9:30 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, J esley Oler, Jr., Galen R. Waltz, Esq. 28 South Pitt Street Carlisle, PA 17013 Attorney for Plaintiff Michael A. Scherer, Esq 19 West South Street Carlisle, PA 17013 Attorney for Defendant J. jj- 1-7- 04 4. :rc 14 J L I It. 0 1190, IV Z klvi I "i - ! ? "'. ?:: , -?? ? -.A * -H I Z" 0 TAMMY L. NICKEL, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW JAMES W. NICKEL, Defendant NO. 05-3733 CIVIL TERM ORDER OF COURT AND NOW, this 25th day of January, 2007, upon agreement of counsel, the following matters will be heard on Monday, May 14, 2007, at 9:30 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania: 1. Petition for Custody; 2. Defendant's Petition To Modify Custody; 3. Defendant's Petition for Contempt; 4. Plaintiff's Answer to Petition for Contempt and Counter Petition for Contempt. BY THE COURT, Galen R. Waltz, Esq. 28 South Pitt Street Carlisle, PA 17013 Attorney for Plaintiff Michael A. Scherer, Esq. 19 West South Street Carlisle, PA 17013 Attorney for Defendant esley O r, J. :rc 1 : 1111"N JZ KV LOU TAMMY L. NICKEL, Plaintiff/Petitioner V. JAMES W. NICKEL Defendant/Respondent IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 2005-3733 CIVIL TERM CIVIL ACTION - LAW IN CUSTODY MOTION FOR CONTINUANCE AND NOW comes both Counsel for Plaintiff and Defendant, Galen R. Waltz, Esquire for Plaintiff/Petitioner Tammy L. Nickel and Michael A. Scherer, Esquire for Defend ant/Respondent James W. Nickel who jointly represent the following: On January 25, 2007 this Honorable Court issued an Order scheduling a hearing for Monday, May 14, 2007 at 9:30 a.m. in Courtroom No. 1 in order to hearing the following: a. Petition for Custody; b. Defendant's Petition to Modify Custody; c. Defendant's Petition for Contempt; d. Plaintiffs Answer to Petition for Contempt and Counter Petition for Contempt. 2. On March 21, 2001 the Cumberland County Children & Youth Services filed a Petition arguing Dependency against James W. Nickel, party participant herein. 3. Since that filing additional allegations have arisen, investigation of those allegations is currently being conducted and a Order has been issued by the Dependency Court that is currently governing the Custody of the child, Jaime Nickel, born on November 14, 2001, as the subject between the parents and litigants herein, Tammy L. Nickel, Mother and James W. Nickel, Father. 4. Judge Oler has been assigned to the above captioned case. 5. The parties believe that the Dependency Custody Order and investigation thereto should be resolved before litigation is scheduled before the Honorable Judge Oler. 6. Attorney Michael Scherer and Attorney Galen Waltz jointly consent to this Motion for Continuance. THEREFORE, the parties respectfully request that this Court grant a mutually requested continuance in this matter until the appropriate and current dependency action is concluded; it is respectfully requested that upon the conclusion of the Dependency/Custody matter, that either party litigant's shall advise this Honorable Court to reschedule the above referenced matters for a hearing. RESPECTFULLY SUBMITTED, v-//6 k Date M&I Date C Michdel Scheref, Nquire O'Brien, Baric & Shearer 19 West South Street Carlisle, PA 17013 Attorney for Defend ant/Respondent 28 S. Pitt Street Carlisle, PA 17013 Attorney for Plaintiff/Petitioner GO ? ?.> u•l MAY 101007inf TAMMY L. NICKEL, : IN THE COURT OF COMMON PLEAS Plaintiff/Petitioner : CUMBERLAND COUNTY, PENNSYLVANIA vi. : No. 2005-3733 CIVIL TERM JAMES W. NICKEL : CIVIL ACTION - LAW Defendant/Respondent : IN CUSTODY '?ff ORDER AND NOW, this Ca K day of , 2007 after review the Joint Motion for Continr?uuance, the Continuance is granted generally and the parties shall b wopgh advise this Court?as soon the Dependency/Custody matters have been concluded in order that the hearing in the matters at the above Docket No. can be scheduled. cc ichael Scherer, Esquire Xalen R. Waltz, Esquire, A h - _? • am N ` t - LIJ L tJ C 4 1 TAMMY L. NICKEL, Plaintiff/Petitioner V. JAMES W. NICKEL Defendant/Respondent IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 05 - 3733 CIVIL TERM CIVIL ACTION - LAW IN CUSTODY EMERGENCY PETITION FOR SPECIAL RELIEF AND NOW, comes Tammy L. Nickel, by and through her attorney, Galen R. Waltz, Esquire, and respectfully submits the following: 1. The parties are Tammy L. Nickel, (hereinafter, "the Mother"), plaintiff and James W. Nickel, (hereinafter, "the Father"), defendant. 2. The parties were married on October 20, 2001 and have been separated since March 2006. 3. The parties have one minor child together, Jaime L. Nickel, born November 14, 2001. 4. A Court Order regarding custody was issued September 6, 2005 by the Honorable J. Wesley Oler, Jr. 5. The September 6, 2005 Order awarded primary physical custody to the Mother. 6. The September 6, 2005 Order awarded the Father partial physical custody of the child on alternating weekends, from Friday at 7:30 a.m. to Sunday at 2:00 p.m., and every Tuesday and Thursday from 7:20 a.m. to 2:00 p.m. 7. The Mother filed a Petition to Modify Custody in June of 2006, requesting that the Father's custody be limited strictly to supervised visitation. 8. The Father filed a Petition for Contempt of the September 6, 2005 Order in August 2006. 9. On September 6, 2006, this Honorable Court issued an Order scheduling a hearing for January 3, 2007 and ordering that the September 6, 2005 Custody Order remain in full force and effect, while also adding a holiday schedule. 10. The Mother filed an Answer to the Father's contempt petition and a Counter Petition for Contempt on November 13, 2006. 11. On January 25, 2007, an Order was issued scheduling a Hearing with this Honorable Court for May 14, 2007. 12. In March 2007 it was discovered that Cumberland County Children & Youth Services (hereinafter "CYS") filed a Petition arguing Dependency against the Father, resulting from a March 21, 2007 complaint of sexual abuse in the Father's household. 13. On March 19, 2007, CYS received a referral of suspected sexual abuse of a three-year-old boy by James W. Nickel. 14. On March 28, 2007, CYS received a referral of suspected sexual abuse of the child, Jaime L. Nickel, by Gavin Nickel, her half-brother and the son of James L. Nickel. 15. On May 10, 2007, an Order was issued by the Honorable J. Wesley Oler, Jr. continuing generally the matters at the above Docket number until the CYS Dependency/Custody matter has concluded. 16. On May 14, 2007, a report of suspected sexual abuse of the three-year- old boy by the Father, James W. Nickel, was indicated by CYS. 17. On May 23, 2007, a report of suspected sexual abuse of the Child, Jaime L. Nickel, by Gavin Nickel, was indicated by CYS. 18. CYS removed the child from the custody of the Father, James W. Nickel, from the commencement of the sexual abuse investigation. 19. The Father has not had contact with the Child since her removal from his custody. 20. The Mother currently has custody of the Child by the determination of CYS. 21. A Hearing as to the Petition arguing Dependency is scheduled for July 18, 2007, before the Honorable M. L. Ebert, Jr. 22. It is expected that dependency shall not be found as to the Child, Jaime L. Nickel at the July 18, 2007 hearing and that jurisdiction shall be relinquished 23. It is presumed that, following the July 18, 2007 hearing, the parties will return to the custody arrangement of the September 6, 2005 and September 6, 2006 custody orders. 24. It is in the best interest of the Child that she not return to the custody of the Father under the prior custody arrangement. 25. The Father has indicated status by CYS as a sexual abuser of a child. 26. Gavin Nickel, currently a constant member of the Father's household, has indicated status by CYS as a sexual abuser of the Child, Jaime L. Nickel. 27. The Father's household clearly lacks adequate supervision to ensure the Child's safety and well-being. 28. Gavin Nickel still resides in the Father's home, and will be in direct contact with the Child, Jaime L. Nickel. 29. It is in the best interest of the Child, for her physical, mental and moral well-being, that the Father not be allowed custody of the Child, Jaime L. Nickel, outside of adult-supervised visitation. 30. CYS refused to allow the paternal grandmother to act as adult supervision for visitation between the Father and the Child during the pending CYS matter, upon a finding that the paternal grandmother will not protect the Child because she refuses to believe that her son and grandson committed the indicated acts of sexual abuse. 31. The paternal grandparents, as a result of their repudiation of the CYS findings of sexual abuse, will not protect the Child against further peril of sexual abuse. 32. The adult supervision during the Father's visitation periods should be a party other than the paternal grandparents, who, as the CYS reports indicate, do not believe that any sexual abuse occurred on the part of their son and grandson, despite the CYS indication, and will not protect the Child. 33. To date, this custody matter has been in front of the Honorable J. Wesley Oler, Jr., and it is proposed that both contempt motions and this emergency petition be consolidated for the sake of judicial economy. 34. The concurrence of Michael A. Scherer, Esquire, counsel for the defendant, was sought as to both matters of custody and consolidation and said concurrence could not be obtained. WHEREFORE, the Petitioner respectfully requests that this Honorable Court limit the Father's custody of the Child, Jaime L. Nickel, strictly to adult-supervised visitation as described above. It is further requested, for reason of judicial economy, that the two contempt petitions currently in continuance be incorporated herewith. D Date Respectfully Submitted, ,Gdfen R. Wales EA SO Law office 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorney for Petitioner CERTIFICATE OF SERVICE I, Galen R. Waltz, Esquire hereby certify that I served a true and correct copy of the Emergency Petition for Special Relief, by first class, postage pre-paid and depositing same in the United States Mail, first class, postage pre-paid on the day of July, 2007, from Carlisle, Pennsylvania, addressed as follows: Michael A. Scherer, Esquire O'Brien, Baric & Scherer 19 West South Street Carlisle, PA 17013 TURO LAW OFFICES Galen R. Wa , Es ire 28 South Pitt S Carlisle, PA 17013 (717) 245-9688; FAX 717.245.2165 VERIFICATION I verify that the statements made in the foregoing Emergency Petition for Special Relief are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsown falsification to authorities. ? //-? 1z Date Tammy L. Petitioner 7G (7 O t Q V C._J T:r Ci n -T T ?T TAMMY L. NICKEL, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW JAMES W. NICKEL, Defendant NO. 05-3733 CIVIL TERM ORDER OF COURT AND NOW, this 23rd day of July, 2007, upon consideration of Plaintiff's Emergency Petition for Special Relief, it is ordered and directed as follows: 1. Plaintiff's petition is referred to the custody conciliation process, and the Court Administrator is requested to facilitate this referral; 2. Pending the custody conciliation conference and further order of court, Defendant's custodial periods shall be exercised only under the supervision of another adult, which person shall not be either of the paternal grandparents. L/alen R. Waltz, Esq. 28 South Pitt Street Carlisle, PA 17013 Attorney for Plaintiff ,Michael A. Scherer, Esq. 19 West South Street Carlisle, PA 17013 Attorney for Defendant Court Administrator-`j ?/dN :rc BY THE COURT, UTZ oft- -14 TAMMY L. NICKEL IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. JAMES W. NICKEL DEFENDANT 05-3733 CIVIL ACTION LAW IN CUSTODY ORDER OF COURT AND NOW, Thursday, July 26, 2007 , upon consideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear before Jacqueline M. Verney, Esq. , the conciliator, at 4th Floor, Cumberland County Courthouse, Carlisle on Tuesday, August 21, 2007 at 8:30 AM for a Pre-Hearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute, or if this cannot be accomplished, to define and narrow the issues to be heard by the court, and to enter into a temporary order. All children age five or older may also be present at the conference. Failure to appear at the conference may provide grounds for entry of a temporary or permanent order. The court hereby directs the parties to furnish any and all existing Protection from Abuse orders, Special Relief orders, and Custody orders to the conciliator 48 hours prior to scheduled hearing. FOR THE COURT, By: /s/ ac ueline M. Verne Es . Custody Conciliator The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilites Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. YOU SHOULD TAKE THIS PAPER TO YOUR ATTORNEY AT ONCE. IF YOU DO NOT HAVE AN ATTORNEY OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 Pit) Vll\fVA ASNN3d 60 :11 WV 0£ IA DOZ J HVICINOrUOSd BHi dfl 30U0-0314 w- 11V1. $ 4 2W TAMMY L. NICKEL, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW JAMES W. NICKEL, Defendant NO. 05-3733 CIVIL TERM ORDER OF COURT AND NOW, this 23'd day of July, 2007, upon consideration of Plaintiff's Emergency Petition for Special Relief, it is ordered and directed as follows: 1. Plaintiff's petition is referred to the custody conciliation process, and the Court Administrator is requested to facilitate this referral; 2. Pending the custody conciliation conference and further order of court, Defendant's custodial periods shall be exercised only under the supervision of another adult, which person shall not be either of the paternal grandparents. J Galen R. Waltz, Esq. 28 South Pitt Street Carlisle, PA 17013 Attorney for Plaintiff Michael A. Scherer, Esq. 19 West South Street Carlisle, PA 17013 Attorney for Defendant rt Administrator : rc BY THE COURT, AUG 8$2007 TAMMY L. NICKEL, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2005-3733 CIVIL ACTION - LAW JAMES W. NICKEL, Defendant : IN CUSTODY ORDER OF COURT AND NOW, this 1-311 day of A -- , 2007, upon consideration of the attached Custody Conciliation leport, it is ordered and directed as follows: 1. A Pre-Hearing Conference is scheduled in urt Room No. of the Cumberland County Court House on the 114t day of, 2007 at ,3,',30- o'clock _f . M. 2. A Hearing is scheduled in Court Room No. of the Cumberland County Court House, on the /?? day of ArrtA;, , 2007, at 9 V v o'clock, &. M., at which time testimony will be taken. For purposes of this Hearing, the Father shall be deemed to be the moving party and shall proceed initially with testimony. Counsel for each party shall file with the Court and opposing counsel a Memorandum setting forth each party's position on custody, a list of witnesses who will be 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. 3. The prior Orders of Court dated September 6, 2005, September 6, 2006, January 25, 2007 and July 23, 2007 are hereby vacated. The following shall remain in full force and effect, unless modified by further Order of Court or agreement of the parties: 4. The Mother, Tammy L. Nickel and the Father, James W. Nickel, shall have shared legal custody of Jaime L. Nickel, born November 14, 2001. Each parent shall have an equal right, to be exercised jointly with the other parent, to make all major non-emergency decisions affecting the Child's general well-being including, but not limited to, all decisions regarding her health, education and religion. Pursuant to the terms of 23 Pa.C.S. §5309, each parent shall be entitled to all records and information pertaining to the child including, but not limited to medical, dental, religious or school records, the residence address of the child and the other parent. To the extent one parent has possession of any such records or information, that parent shall be required to share the same, or copies thereof, with the other parent within such reasonable time as to make the records and information of reasonable use to the other parent. Both parents shall be entitled to full participation in all educational and medical/treatment planning meetings rj a Cv k # . ; t 4 . Co N and evaluations with regard to the minor child. Each parent shall be entitled to full and complete information from any physician, dentist, teacher or authority and copies of any reports given to them as parents including, but not limited to: medical records, birth certificates, school or educational attendance records or report cards. Additionally, each parent shall be entitled to receive copies of any notices which come from school with regard to school pictures, extracurricular activities, children's parties, musical presentations, back-to-school nights, and the like. 5. Mother shall have primary physical custody of the child. 6. Father shall have periods of supervised visitation every Tuesday and Thursday from 3:30 p.m. to 6:30 p.m. The adult supervisor may not permit Father or Gavin to be alone with the child. The supervisor may not be either of the paternal grandparents. 7. Father shall have telephone contact with the child every Monday, Wednesday and Friday at 4:00 p.m. 8. Father shall be responsible for all transportation and once the child starts school, she may be picked up from school provided the adult supervisor is present. 9. The parties shall cooperate with family counseling. 10. The parties may modify this Order by mutual agreement. In the absence of mutual consent, the terms of this Order shall control. cc: Galen R. Waltz, Esquire, counsel for Mother Michael A. Scherer, Esquire, counsel for Father yl 716 ? ?I.cJ . O BY THE COURT, AUG 2 .2 2001 TAMMY L. NICKEL, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2005-3733 CIVIL ACTION - LAW JAMES W. NICKEL, Defendant : IN CUSTODY PRIOR JUDGE: J. Wesley Oler, Jr., J. CUSTODY CONCILIATION SUMMARY REPORT IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE 1915.3-8, the undersigned Custody Conciliator submits the following report: 1. The pertinent information concerning the Child who is the subject of this litigation is as follows: NAME DATE OF BIRTH CURRENTLY IN CUSTODY OF Jaime Nickel November 14, 2001 Mother 2. A Conciliation Conference was held August 21, 2007 with the following individuals in attendance: The Father, James W. Nickel, with his counsel, Michael A. Scherer, Esquire and Mother, Tammy L. Nickel, with her counsel, Galen R. Waltz, Esquire. 3. The Honorable J. Wesley Oler, Jr. previously entered Orders of Court dated September 6, 2005 and September 6, 2006 providing for shared legal custody, Mother having primary physical custody and Father having periods of partial physical custody. More recently, the Honorable J. Wesley Oler, Jr. entered an Order of Court dated January 25, 2007 referring the Petition for Custody, Defendant's Petition to Modify Custody, Defendant's Petition for Contempt and Plaintiffs Answer to Petition for Contempt and Counter Petition for Contempt for a hearing dated May 14, 2007. In the intervening time, an indicated finding of sexual abuse was filed by Cumberland County Children & Youth with Father as the perpetrator and the victim being a neighbor of Father's and an indicated finding of sexual abuse with Father's minor son, who continues to reside in Father's home, as the perpetrator and the victim being the child who is the subject of this litigation. Thereafter, the Honorable J. Wesley Oler, Jr. entered an Order of Court dated July 23, 2007 in response to Mother's Petition for Special Relief, referring the matter to conciliation restricting Father's custodial periods to supervised by another adult, not the paternal grandparents. Father has appealed both `indicated findings' to the r Department of Public Welfare. No hearings on the sexual abuse findings have been scheduled yet. 4. Father's position on custody is as follows: Father seeks shared legal and shared physical custody, vehemently denying the allegations of sexual abuse. He further believes that pending the DPW hearings, his parents are appropriate supervisors. He maintains that he was seeing the child almost every day, due to his work schedule. 5. Mother's position on custody is as follows: She seeks shared legal and primary physical custody with Father having supervised visitation. She asserts that the paternal grandparents are not appropriate supervisors as they told Children & Youth that they did not believe the abuse occurred. 6. The Conciliator recommends an Order in the form as attached scheduling a Hearing and providing Father with supervised visitation and telephone contact with the child. Counsel for Father requests a pre-hearing conference within ten days to discuss the possibility of the paternal grandparents supervising Father's periods of custody. It is expected that the Hearing will require one day. 8- a? ?o q a, ? 4 It -___ ? 1A , V-b , ?,, Date acqu ne M. Verney, Esquire 64 Custody Conciliator TAMMY L. NICKEL, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW JAMES W. NICKEL, Defendant NO. 05-3733 CIVIL TERM ORDER OF COURT AND NOW, this 5d' day of September, 2007, upon agreement of counsel, a hearing on Plaintiff's Emergency Petition for Special Relief is scheduled for Thursday, October 4, 2007, at 9:30 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. ,odalen R. Waltz, Esq. 28 South Pitt Street Carlisle, PA 17013 Attorney for Plaintiff Michael A. Scherer, Esq. 19 West South Street Carlisle, PA 17013 Attorney for Defendant :rc J BY THE COURT, Z 1 :Z Wd S- d.I'5 LOQZ TAMMY L. NICKEL, IN THE COURT OF COMMON PLEAS OF. Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v CIVIL ACTION - LAW JAMES W. NICKEL, Defendant 05-3733 CIVIL TERM IN RE: EMERGENCY PETITION FOR SPECIAL RELIEF ORDER OF COURT AND NOW, this 4th day of October, 2007, upon consideration of Plaintiff's Emergency Petition for Special Relief, and following a hearing commenced on this date, which has not yet been completed, the record shall remain open, and counsel are requested to contact the Court's secretary to schedule a further day of hearing in this case. It is noted that at the time of adjournment on today's date (A) Plaintiff had not yet completed her case-in-chief (B) Defendant had presented one witness out of order and (C) Plaintiff's Exhibits 2 and 3 had been introduced and admitted, and Plaintiff's Exhibit 1 had been introduced, but its admission refused. Neither counsel has requested a copy of the transcript of the notes of testimony from today's date. Pending further Order of Court, the present custody order(s) in effect shall remain in full force and effect. t? 2 _ zp 43- ? l1J t?, i II CJ is 4w_ c? f.1 ? A By the Court, i J. rsley 0 J J. /glen R. Waltz, Esquire 28 South Pitt Street Carlisle, PA 17013 For Plaintiff /19CWest hael A. Scherer, Esquire South Street Carlisle, PA 17013 For Defendant \ O : mae n \L?e n TAMMY L. NICKEL, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v CIVIL ACTION - LAW JAMES W. NICKEL, Defendant 05-3733 CIVIL TERM ORDER OF COURT AND NOW, this 4th day of October, 2007, pursuant to an agreement of both counsel in the above-captioned matter, Corinne Daly, Cumberland County Children and Youth Services Caseworker, is authorized and directed to respond to questions of counsel regarding the issues in this case. By the Court, alen R. Waltz, Esquire 28 South Pitt Street Carlisle, PA 17013 For Plaintiff 11 Michael A. Scherer, Esquire 19 West South Street Carlisle, PA 17013 For Defendant Corrine Daly, CCC&YS Caseworker :mae r? r- w c) C3?> ? -7LL?,. BE ?.. car a O :3 LL- © t° TAMMY L. NICKEL, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW JAMES W. NICKEL, Defendant NO. 05-3733 CIVIL TERM ORDER OF COURT AND NOW, this 14'h day of December, 2007, upon agreement of counsel, the hearing previously scheduled in the above matter for December 12, 2007, is rescheduled to Tuesday, January 8, 2008, at 2:45 p.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. AN FURTHER period of hearing is scheduled in the above matter for Wednesday, March 5, 2008, at 9:30 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, I Llll?? /' la ' J. esley Ole Jr., J. ` /len R. Waltz, Esq. 28 South Pitt Street Carlisle, PA 17013 Attorney for Plaintiff ,ichael A. Scherer, Esq. 19 West South Street Carlisle, PA 17013 Attorney for Defendant :rc 1\ VNVA-IASNN3d t Q 401 WV ? 1 330 LODZ 1+kN1U+` W.G d 341 fit? 301.140-03I TAMMY L. NICKEL, Plaintiff V. JAMES W. NICKEL, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005 - 3733 CIVIL TERM CIVIL ACTION - LAW IN CUSTODY MOTION FOR CONTINUANCE AND NOW, comes Michael A. Scherer, Esquire, counsel for the Defendant, James W. Nickel, and respectfully represents as follows: 1. A custody hearing is scheduled in this matter for Tuesday, January 8, 2008 at 2:45 p.m and for Wednesday, March 5, 2008 at 9:30 a.m. 2. There is presently a matter pending before the Department of Public Welfare involving the parties and the Defendant would like to conclude that matter prior to further hearings in this case. 3. Galen Waltz, Esquire represents the Plaintiff, Tammy Nickel, and concurs in the request for a continuance. WHEREFORE, undersigned counsel respectfully requests that this Honorable Court continue generally the custody hearings scheduled in this matter. Respectfully submitted, O'BRIEN, BARIC & SCHERER Date: / 03 Mich el A. Scher r, Esquire I. D. # 61974 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 mas.dirldomestic/nickel/continuance.mot TAMMY L. NICKEL, Plaintiff V. JAMES W. NICKEL, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005 - 3733 CIVIL TERM CIVIL ACTION - LAW IN CUSTODY CERTIFICATE OF SERVICE I hereby certify that on the -Till day of dw?kam , 2008, 1, Andrea M. Barrick of O'Brien, Baric & Scherer did serve a copy of the Motion for Continuance by first class U.S. mail, postage prepaid, to the party listed below, as follows: Galen R. Waltz, Esquire Turo Law Offices 28 South Pitt Street Carlisle, Pennsylvania 17013 Andrea M. B rrick _ ? . ._ ? .?? (`?i :? ?.,r7 ?: r ?!? r ' i... ? ?--1 J 11 JAN 0 82008,OY TAMMY L. NICKEL, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2005 - 3733 CIVIL TERM JAMES W. NICKEL, : CIVIL ACTION - LAW Defendant IN CUSTODY ORDER OF COURT AND NOW this day of '42 r) , 2008, upon consideration of the within Motion for Continuance, the hearings set in this matter for Tuesday, January 8, 2008 at 2:45 p.m. and for Wednesday, March 5, 2008 at 9:30 a.m. are hereby continued generally. A custody hearing may be rescheduled at the request of either party hereafter. Pending further Order of Court, the existing Custody Order shall remain in effect. Michael A. Scherer, Esquire O'Brien, Baric & Scherer 19 West South Street Carlisle, Pennsylvania 17013 Galen R. Waltz, Esquire Turo Law Offices 28 South Pitt Street Carlisle, Pennsylvania 17013 Capi;as mattccL x/4108 Qv -ruC f%ni 10-r L I : I I WV 6- Or ROOZ -H 0'-d 3Hi 20 Jil:f,"? C]?l TAMMY L. NICKEL, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2005 - 3733 CIVIL TERM JAMES W. NICKEL, CIVIL ACTION - LAW Defendant IN CUSTODY MOTION FOR DISCOVERY PURSUANT TO PA.R.C.P. 1915(c) AND NOW, comes Michael A. Scherer, Esquire, counsel for the Defendant, James W. Nickel, and respectfully represents as follows: 1. The Petitioner is James W. Nickel (hereinafter "Father"), who is an adult individual who resides at 107 Yates Street, Mt. Holly Springs, Cumberland County, Pennsylvania. 2. The Respondent is Tammy L. Nickel (hereinafter "Mother"), an adult individual who is represented in this matter by Galen Waltz, Esquire. 3. The parties are the natural parents of one minor child, Jamie L. Nickel (hereinafter "Child"), born November 14, 2001. 4. On or about July 18, 2007, Mother filed an Emergency Petition for Special Relief requesting that Father's custodial rights of the child be limited to supervised visitation because Father was alleged to have inappropriate contact with a neighbor child named Richard Brown. 5. This Honorable Court granted Mother's petition. 6. Cumberland County Children and Youth Services (hereinafter "CYS") completed an investigation into the abuse allegation against Father which resulted in indicated abuse against Father. 7. Richard Brown was seen at the Carlisle Regional Medical Center for an examination regarding the alleged abuse. 8. Richard Brown and Jaime Nickel were interviewed at the Children's Resource Center (hereinafter "CRC") regarding the allegation of abuse against Father and regarding alleged abuse in Father's household against Jaime. 9. The interviews at the CRC were videotaped and said tapes are in the possession of the Mt. Holly Springs Police Department. 10. Undersigned counsel obtained a Court Order from the Honorable M.L. Ebert, Jr., Judge, dated June 18, 2007, which permitted undersigned counsel access to the videotapes of the above interviews and the documents in the possession of the Childrens Resource Center and CYS. CYS discontinued their case prior to the Order being implemented. A copy of the Order is attached hereto as "Exhibit A." 11. Undersigned counsel would like to inspect the medical records relative to the alleged abuse of Richard Brown and to view the videotapes of the interviews, which evidence is crucial to Father's case. Copies of the subpoenas undersigned counsel intends to serve are attached hereto as "Exhibits B & C." 12. At a hearing in this matter on October 4, 2007, the CYS caseworker testified extensively to the CRC interview of Richard Brown in this case, which interview is the subject of the videotape undersigned counsel desires to view and copy. 13. Galen Waltz, Esquire, Mother's counsel, opposes this Motion. WHEREFORE, undersigned counsel respectfully requests that this Honorable Court enter an Order allowing undersigned counsel to serve the attached subpoenas and to otherwise conduct discovery in this matter pursuant to Pa.R.C.P. 1915(C). Respectfully submitted, O'BRIEN, BARIC & SCHERER Date: /rof V. 41 I IN 11'4919 $ i ae .Scherer, Esquire I. D. # 61974 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 mas.dirldomestic/nickel/discovery.mot CERTIFICATE OF SERVICE I hereby certify that on the , day of , 2008, I, Andrea M. Barrick of O'Brien, Baric & Scherer did serve a copy of the Motion For Discovery Pursuant To Pa.R.C.P. 1915 (c), by first class U.S. mail, postage prepaid, to the party listed below, as follows: Galen R. Waltz, Esquire Turo Law Offices 28 South Pitt Street Carlisle, Pennsylvania 17013 Andrea . Barrick IN THE COURT OF COMMON PLEAS 9TH JUDICIAL DISTRICT CUMBERLAND COUNTY JUVENILE PETITION In the interest of Jamie Lynn Nickel; Date of Birth 11114101; Juvenile No. CP-21-JV-63-2007 ORDER AND NOW, this 1h day of 1?'4% ` . 2007, upon consideration of the within Motion for Inspection of Court Files and Records, it is hereby Ordered that Cumberland County Children and Youth Services shall provide photocopies of the documents in their file to Michael A. Scherer, Esquire, and further make available any and all videotapes and recordings which exist in connection with the above- captioned matter. The Children's Resource Center is hereby ordered to provide Michael A. Scherer, Esquire, copies of documents in their possession related to this case and videotapes and recordings as well. M.L. Ebert, Jr., J. i Michael A. Scherer, Esquire .19 West South Street Carlisle, Pennsylvania 17013 Lindsay Dare Baird, Esquire Cumberland County Children and Youth Services 16 West High Street Carlisle, Pennsylvania 17013 Mark F. Bayley, Esquire 57 West Pomfret Street Carlisle, Pennsylvania 17013 Sean M. Shultz, Esquire 11 Roadway Drive, Suite B Carlisle, Pennsylvania 17013 EXHIBIT "A" TAMMY L. NICKEL, Plaintiff V. JAMES W. NICKEL, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-3733 CIVIL TERM CIVIL ACTION-LAW SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Carlisle Regional Medical Center 361 Alexander Spring Road Carlisle, Pennsylvania 17013 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Any and all medical records in your possession relating to an examination performed on Richard Brown, Date of Birth: February 12, 2004, S.S. # 214-69-3842 on March 19, 2007. You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the following address: O'Brien, Baric and Scherer 19 West South Street Carlisle, PA 17013 c/o Michael A. Scherer, Esquire You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. EXHIBIT "B" This subpoena was issued at the request of the following person: Michael A. Scherer, Esquire I.D. # 61974 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 DATE: BY: BY THE COURT, Prothonotary SEAL OF THE COURT TAMMY L. NICKEL, Plaintiff V. JAMES W. NICKEL, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-3733 CIVIL TERM CIVIL ACTION-LAW SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 j TO: Mt. Holly Springs Police Department 200 Harmon Street Mt. Holly Springs, Pennsylvania 17265 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Copies of videotaped interviews of Richard Brown and Jaime Nickel at Children's Resource Center on March 21, 2007 and March 27, 2007 respectively. You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the following address: O'Brien, Baric and Scherer 19 West South Street Carlisle, PA 17013 c/o Michael A. Scherer, Esquire You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. EXHIBIT "C" This subpoena was issued at the request of the following person: Michael A. Scherer, Esquire I.D. # 61974 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 DATE: BY: BY THE COURT, Prothonotary SEAL OF THE COURT r? ?'?? ?:.? ? t:? - ;_ _,? a'+") ?? t,.' 't ?'4J ? ? ` ^^] { § ?"y3 '.: i .. } '? TAMMY L. NICKEL, Plaintiff V. JAMES W. NICKEL Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 05 - 3733 CIVIL TERM CIVIL ACTION - LAW IN CUSTODY OBJECTION TO DEFENDANT'S MOTION FOR DISCOVERY AND NOW, comes the Plaintiff, Tammy L. Nickel, by and through her attorney, Galen R. Waltz, Esq., and respectfully submits the following: 1. Respondent is Tammy L. Nickel, an adult individual who resides at 600 North Baltimore Street, Mount Holly Springs, Cumberland County, Pennsylvania. 2. Petitioner is James W. Nickel, an adult individual who is represented in this matter by Michael A. Scherer, Esq. 3. The parties are the natural parents of a minor child, Jamie L. Nickel, born on November 14, 2001. 4. On May 14, 2007, a report of suspected sexual abuse of the three-year- old boy, Richard Brown, by Defendant James W. Nickel was indicated by Cumberland County Children & Youth Services. 5. On May 23, 2007, a report of suspected sexual abuse of the minor child, Jaime L. Nickel, by her half-brother Gavin Nickel (son of Defendant), was indicated by Cumberland County Children & Youth Services. 6. Defendant is in the midst of an appeal of his "indicated" status as an abuser of Richard Brown. 7. Defendant was scheduled to appear at an appeal hearing with the Department of Public Welfare (hereinafter, "DPW") on or about February 20, 2008; however, the date for that hearing has been continued to March 26, 2008. 8. To the best of Plaintiffs knowledge, Defendant also remains the subject of an ongoing criminal investigation by the Mount Holly Police Department in the same matter. 9. An Order was issued by this Honorable Court on January 8, 2008, continuing the above-captioned custody matter generally, effectively suspending these custody proceedings until the DPW matter against Defendant comes to conclusion. 10. Defendant, James W. Nickel, filed a "Motion For Discovery Pursuant to PA.R.C.P. 1915(c)" on January 25, 2008. 11. Defendant requests this Honorable Court to act pursuant to a rule ("PA.R.C.P. 1915(c)") that does not exist. 12. Defendant requests this Honorable Court to order discovery in the above- captioned custody matter, by means of the issuance of two subpoenas. 13. One subpoena is to be directed to the Carlisle Regional Medical Center, in order to obtain medical records relating to an examination of Richard Brown, the minor child of whom Defendant is an indicated sexual abuser. 14. The other subpoena is to be directed to the Mount Holly Springs Police Department, to elicit production of videotaped interviews of Richard Brown and Jaime Nickel, relating to their indicated victimization of sexual abuse. 15. The fact that an Order directing discovery of these requested items was once issued in a now defunct dependency matter (as highlighted in Defendant's Motion paragraph 10 and Exhibit "A") is completely irrelevant to this custody litigation. 16. Discovery is generally not permissible in a custody matter. 17. Pa.R.C.P. § 1930.5(a) requires a request for special relief from the court in order to pursue discovery in a custody matter. 18. Pa.R.C.P. § 4011(a) prohibits discovery when sought in bad faith. 19. Defendant's request for discovery does not warrant an award of special relief from this Honorable Court. 20. Defendant's motion for discovery has the earmarks of a request made in bad faith. 21. While the DPW hearing is imminent, the DPW matter is likely not to reach its ultimate conclusion for months, and this custody matter will not re-enter active status until such time. 22. There is no likely practical use by Defendant of the medical records of Richard Brown in the upcoming custody litigation; however this item will have obvious, enormous value in Defendant's upcoming case before the DPW and in defense against Defendant's ongoing criminal investigation. 23. There is no likely practical use by Defendant of the videotaped interviews of Richard Brown and Jaime Nickel in the upcoming custody litigation; however these items will have obvious, enormous value in the cases of both Gavin Nickel and Defendant before the DPW and in defense against the ongoing criminal investigations of Gavin Nickel and Defendant. 24. The outcome of the DPW matter is likely to be largely dispositive of the custody matter if Defendant's "indicated" status is affirmed. 25. Evidence as to whether or not abuse occurred is likely to bear little weight in the custody litigation compared to the decision of the DPW appeal itself. 26. Notably, this irregular pursuit of discovery in the suspended custody matter avoids notice to opposing counsel in either or both of the DPW and criminal matters of Defendant's intent to serve the subpoenas. 27. Opposing counsel in the DPW proceedings, Ruby D. Weeks, Esq., is being improperly circumvented by the failure of Defendant to properly pursue this matter through the DPW. 28. Defendant could utilize an administrative subpoena issued by DPW to obtain discovery of the desired items for Defendant's DPW matter. 29. In custody matters, the court is charged with determining the best interests of the child involved. 30. The respective rights and interests of contesting parties are trumped by the best interests of the child. 31. The best interest of the couple's minor child is not served by turning over her CYS interview and that of Richard Brown to Defendant in litigation of this custody matter. 32. The best interest of the couple's minor child is not served by turning over the medical records of Richard Brown to Defendant in litigation of this custody matter. 33. It is apparent that the primary interest of the Defendant is at the heart of Defendant's Motion for Discovery. WHEREFORE, Plaintiff respectfully requests this Honorable Court to deny Defendant's Motion for Discovery. o b? Date Respectfully Submitted, Galen R. Waltz, Es ire Turo Law offices ' 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorney for Petitioner CERTIFICATE OF SERVICE I, Galen R. Waltz, Esquire hereby certify that I served a true and correct copy of the Objection to Motion for Discovery, by depositing the same in the United States Mail, t? first class, postage pre-paid on the day of February, 2008, from Carlisle, Pennsylvania, addressed as follows: Michael A. Scherer, Esquire O'Brien, Baric & Scherer 19 West South Street Carlisle, PA 17013 TURO LAW OFFICES 28 South Pitt Stre6f Carlisle, PA 17013 (717) 245-9688; FAX 717.245.2165 Q C_ ? t7 C? ' ?t 1 JAN 2 8 2008,."" TAMMY L. NICKEL, Plaintiff V. JAMES W. NICKEL, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005 - 3733 CIVIL TERM CIVIL ACTION - LAW IN CUSTODY ORDER OF COURT AND NOW this 51 day of J zT , 2008, upon consideration of the within Motion for Discovery, a Rule is issued upon the Plaintiff, Tammy L. Nickel, to show cause, if any there be, why the Defendant should not be permitted to cond ct discovery as set forth in his Motion for Discovery. rjuj "y `? '•'r ?`? dy'S X27 Se?v<<c BY THE COURT, Michael A. Scherer, Esquire O'Brien, Baric & Scherer 19 West South Street Carlisle, Pennsylvania 17013 Galen R. Waltz, Esquire Turo Law Offices 28 South Pitt Street Carlisle, Pennsylvania 17013 ?U IVINV lIAMOd " tl r `dno 9c : I I Wit I- g3j goon A8ViG U"HiCdd 3H130 301±40-031U TAMMY L. NICKEL, V. IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA JAMES W. NICKEL, Defendant NO. 2005 - 3733 CIVIL TERM CIVIL ACTION - LAW IN CUSTODY MOTION TO MAKE RULE FOR DISCOVERY ABSOLUTE AND NOW, comes Michael A. Scherer, Esquire, counsel for the Defendant, James W. Nickel, and respectfully represents as follows: Undersigned counsel filed a motion seeking permission to conduct certain discovery in this custody case and this Honorable Court issued a Rule upon Plaintiff to show cause why said discovery should not be permitted. 2. Plaintiff answered the Rule on or about February 4, 2008. 3. So far as undersigned counsel is able to discern, no legal grounds have been cited by Plaintiff's counsel for denial of the motion, aside from a reference to the best interest of the child. WHEREFORE, undersigned counsel respectfully requests that this Honorable Court enter an Order permitting undersigned counsel to serve the subpoenas which were attached to his motion for discovery. Date: 1-4-03 Respectfully submitted, O'BRIEN, BARIC & SCHERER Michael A. Scherer, Esquire I. D. # 61974 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 mas.dir/domestic/nickel/discovery.mot 4 CERTIFICATE OF SERVICE I hereby certify that on the day of Y , 2008, I, Andrea M. Barrick of O'Brien, Baric & Scherer did serve a copy of the Motion For Discovery Pursuant To Pa.R.C.P. 1915 (c), by first class U.S. mail, postage prepaid, to the party listed below, as follows: Galen R. Waltz, Esquire Turo Law Offices 28 South Pitt Street Carlisle, Pennsylvania 17013 Andrea M. Ekarrick G N ? (? -rt _ n1t 1 ?? V CYN f, c_ -ffi- ?rn TAMMY L. NICKEL, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW JAMES W. NICKEL, Defendant NO. 05-3733 CIVIL TERM IN RE: DEFENDANT'S MOTION FOR DISCOVERY PURSUANT TO PA. R.C.P. 1915(c) BEFORE OLER, J. ORDER OF COURT AND NOW, this 12th day of February, 2008, upon consideration of Defendant's Motion for Discovery Pursuant to Pa. R.C.P. 1915(c), and of Plaintiff's Objection to Defendant's Motion for Discovery, and following a telephone conference with counsel for the parties on February 11, 2008, Defendant's motion is denied at this time, without prejudice to his right to refile the motion following a Department of Public Welfare hearing on Defendant's appeal from the finding of Cumberland County Children and Youth Services referred to in paragraph 6 of Defendant's motion and his right to request a prompt disposition of his motion at that time. BY THE COURT, fr ?? ZGalen R. Waltz, Esq. 28 South Pitt Street Carlisle, PA 17013 Attorney for Plaintiff Michael A. Scherer, Esq. 19 West South Street Carlisle, PA 17013 Attorney for Defendant J- Wesley 04#t, Jr., J: Copts r-rlat(xx?- :rc XI',? 1= ?;'ad Ertl. ?t? TAMMY L. NICKEL, Plaintiff V. JAMES W. NICKEL, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2005-3733 CIVIL TERM CIVIL ACTION - LAW PETITION FOR SPECIAL RELIEF PURSUANT TO RULE 1915.13 AND FOR CONTEMPT AND NOW, comes James W. Nickel, by and through his attorney, Michael A. Scherer, Esquire, and respectfully represents as follows: 1. Petitioner is the defendant, James W. Nickel, an adult individual who resides at 107 Yates Street, Mount Holly Springs, Cumberland County, Pennsylvania. 2. Respondent is the plaintiff, Tammy L. Nickel, an adult individual who resides at 109 Yates Street, Mount Holly Springs, Cumberland County, Pennsylvania. 3. The parties are the parents of one minor child, namely Jaime L. Nickel, born November 14, 2001. 4. The parties are governed by and Order of Court dated August 23, 2007, which is attached hereto as "Exhibit A." 5. In May, 2008, mother vacated her prior residence and father had no knowledge of her residence, and as such, was prevented from having any contact with his child. 6. Father has had no contact with his child since May, 2008, since he had not been certain where mother resided and how to contact her. 7. Recently, mother and child moved into a residence which is approximately two hundred (200) yards away from father's residence. 8. Father, through his friend, attempted to contact mother at her present residence for purposes of resuming contact with his daughter, which attempts have been unsuccessful. j 9. Mother is represented by Galen R. Waltz, Esquire. i. 10. Undersigned counsel contacted Attorney Waltz via written correspondence on May 29, 2008 and July 30, 2008 to request that he direct his client to obey the existing Custody Order. 11. Attorney Waltz has stated earlier in the summer that his client was on vacation as a reason why father was having no contact with his child. 12. Attorney Waltz recently has stated that he has been trying to reach his client and would reply to my most recent correspondence to him; however, Attorney Waltz has not replied. 13. Father believes mother left the jurisdiction of this Court with the child for an extended period of time. 14. Father has at all times done what he could to demonstrate his interest in seeing his daughter as dictated by the present Order of Court. 15. Father has not done anything to suggest that he in any way was forfeiting time with his child. 16. Mother has done nothing to ensure that the child sees her father. 17. Irreparable harm is being done to the father-daughter relationship each day this case remains in the status quo. WHEREFORE, father requests that the Court enter an Order directing: 1. An immediate conference with counsel to verify the present situation; and 2. Father become the primary custodian of the child pending further Order of Court; and, 3. Mother be required to post a bond to ensure she does not leave the jurisdiction with the child; and 4. Find mother in contempt of Court; and 5. Direct mother to pay father's reasonable counsel fees in connection with this petition; and, 6. Fine mother. Respectfully submitted, O'BRIEN, BARIC & SCHERER Date: 5 0b Micha I A. cherer, Esquire I. D. # 61974 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Attorney for Defendant/Petitioner r VERIFICATION The statements in the foregoing Petition For Special Relief Pursuant To Rule 1915.13 And For Contempt are based upon information which has been assembled by my attorney in this litigation. The language of the statements is not my own. I have read the statements; and to the extent that they are based upon information which I have given to my counsel, they 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 18 Pa.C.S. § 4904 relating to uns rn falsifications to authorities. DATE: James W. Nickel CERTIFICATE OF SERVICE hereby certify that on the day of 2008, I, Andrea M. Barrick, of O'Brien, Baric & Scherer, did serve a copy of the Petition for Special Relief Pursuant to Rule 1915.13 and for Contempt, by first class U.S. mail, postage prepaid, to the party listed below, as follows: Galen R. Waltz, Esquire Turo Law Office 28 South Pitt Street Carlisle, Pennsylvania 17013 44mt& ndrea M. arrick AN 2 2.1"" TAMMY L. NICKEL, : IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2005-3733 CIVIL ACTION - LAW JAMES W. NICKEL, . Defendant : IN CUSTODY ORDER OF COURT AND NOW, this ) 3 day of , 2007, upon consideration of the attached Custody Conciliati Report, it is ordered and directed as follows: 1. APre-Hearing Conference is cheduled U urt Roo No. of the Cumberland County Court House on the y1,, day of La k , 2007 at 3:30 o'clock T_. M. 2. A Hearing is scheduled in Co oom N , of the Cumberland County C urt House, on the day of , 2007, at o'clock,. M., at which time testimony will be taken. For purposes of this Hearing, the Father shall be deemed to be the moving party and shall proceed initially with testimony. Counsel for each party shall file with the Court and opposing counsel a Memorandum setting forth each party's position on custody, a list of witnesses who will be 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. 3. The prior Orders of Court dated September 6, 2005, September 6, 2006, January 25, 2007 and July 23, 2007 are hereby vacated. The following shall remain in frill force and effect, unless modified by further Order of Court or agreement of the parties: 4. The Mother, Tammy L. Nickel and the Father, James W. Nickel, shall have shared legal custody of Jaime L. Nickel, born November 14, 2001. Each parent shall have an equal right, to be exercised jointly with the other parent, to make all major non-emergency decisions affecting the Child's general well-being including, but not limited to, all decisions regarding her health, education and religion. Pursuant to the terms of 23 Pa.C.S. §5309, each parent shall be entitled to all records and information pertaining to the child including, but not limited to medical, dental, religious or school records, the residence address of the child and the other parent. To the extent one parent has possession of any such records or information, that parent shall be required to share the same, or copies thereof, with the other parent within such reasonable time as to make the records and information of reasonable use to the other parent. Both parents shall be entitled to frill participation in all educational and medical/treatment planning meetings and evaluations with regard to the minor child. Each parent shall be entitled to full and complete information from any physician, dentist, teacher or authority and copies of any reports given to them as parents including, but not limited to: medical records, birth certificates, school or educational attendance records or report cards. Additionally, each parent shall be entitled to receive copies of any notices which come from school with regard to school pictures, extracurricular activities, children's parties, musical presentations, back-to-school nights, and the like. 5. Mother shall have primary physical custody of the child. 6. Father shall have periods of supervised visitation every Tuesday and Thursday from 3:30 p.m. to 6:30 p.m. The adult supervisor may not permit Father or Gavin to be alone with the child. The supervisor may not be either of the paternal grandparents. 7. Father shall have telephone contact with the child every Monday, Wednesday and Friday at 4:00 p.m. 8. Father shall be responsible for all transportation and once the child starts school, she may be picked up from school provided the adult supervisor is present. 9. The parties shall cooperate with family counseling. 10. The parties may modify this Order by mutual agreement. In the absence of mutual consent, the terms of this Order shall control. BY THE COURT, lqlo a I i. (0?j -1 J4 cc: Galen R. Waltz, Esquire, counsel for Mother Michael A. Scherer, Esquire, counsel for Father rLb TRUE COPY FROM In T imony whfreof, I here and t sea of sai RECORD to set my hand -lisle, Pa TAMMY L. NICKEL, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2005-3733 CIVIL ACTION - LAW JAMES W. NICKEL, Defendant : IN CUSTODY PRIOR JUDGE: J. Wesley Oler, Jr., J. CUSTODY CONCILIATION SUMMARY REPORT IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE 1915.3-8, the undersigned Custody Conciliator submits the following report: The pertinent information concerning the Child who is the subject of this litigation is as follows: NAME DATE OF BIRTH CURRENTLY IN CUSTODY OF Jaime Nickel November 14, 2001 Mother 2. A Conciliation Conference was held August 21, 2007 with the following individuals in attendance: The Father, James W. Nickel, with his counsel, Michael A. Scherer, Esquire and Mother, Tammy L. Nickel, with her counsel, Galen R. Waltz, Esquire. 3. The Honorable J. Wesley Oler, Jr. previously entered Orders of Court dated September 6, 2005 and September 6, 2006 providing for shared legal custody, Mother having primary physical custody and Father having periods of partial physical custody. More recently, the Honorable J. Wesley Oler, Jr. entered an Order of Court dated January 25, 2007 referring the Petition for Custody, Defendant's Petition to Modify Custody, Defendant's Petition for Contempt and Plaintiff s Answer to Petition for Contempt and Counter Petition for Contempt for a hearing dated May 14, 2007. In the intervening time, an indicated finding of sexual abuse was filed by Cumberland County Children & Youth with Father as the perpetrator and the victim being a neighbor-of Father's and an indicated finding of sexual abuse with Father's minor son, who continues to reside in Father's home, as the perpetrator and the victim being the child who is the subject of this litigation. Thereafter, the Honorable J. Wesley Oler, Jr. entered an Order of Court dated July 23, 2007 in response to Mother's Petition for Special Relief, referring the matter to conciliation restricting Father's custodial periods to supervised by another adult, not the paternal grandparents. Father has appealed both `indicated findings' to the Department of Public Welfare. No hearings on the sexual abuse findings have been scheduled yet. 4. Father's position on custody is as follows: Father seeks shared legal and shared physical custody, vehemently denying the allegations of sexual abuse. He 'further believes that pending the DPW hearings, his parents are appropriate supervisors. He maintains that he was seeing the child almost every day, due to his work schedule. 5. Mother's position on custody is as follows: She seeks shared legal and primary physical custody with Father having supervised visitation. She asserts that the paternal grandparents are not appropriate supervisors as they told Children & Youth that they did not believe the abuse occurred. 6. The Conciliator recommends an Order in the form as attached scheduling a Hearing and providing Father with supervised visitation and telephone contact with the child. Counsel for Father requests a pre-hearing conference within ten days to discuss the possibility of the paternal grandparents supervising Father's periods of custody. It is expected that the Hearing will require one day. Date Acqudine M. Verney, Esquire Custody Conciliator r? tn?) t v h? \l \ ,??'] ? e? "CJ' " c.?p t.a tt? { x , r ..? ?4, ?! ? (?" } ?_ ? p ? ? ?' ' 1 A . ? -d?"" ?} TAMMY L. NICKEL, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW JAMES W. NICKEL, Defendant NO. 05-3733 CIVIL TERM ORDER OF COURT AND NOW, this 15`x' day of September, 2008, upon consideration of Defendant's Petition for Special Relief Pursuant to Rule 1915.13 and for Contempt, this matter is referred to the custody conciliation process pursuant to C.C.R.P. 1915.12-1, and the Court Administrator is requested to facilitate this referral for an expedited conciliation conference. BY THE COURT, Galen R. Waltz, Esq. 28 South Pitt Street Carlisle, PA 17013 Zmichael Attorney for Plaintiff A. Scherer, Esq. 19 West South Street Carlisle, PA 17013 Attorney for Defendant Court Administrator._.- fut.•J"ve,?J A- :rc 12or ties rna,[LecC 9?is?? Jqtr n r 8Z =Z Wd S 1 d35 OOOZ A8VIf N011-i Odd 3t d Jo MU TAMMY L. NICKEL, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2005-3733 CIVIL ACTION-LAW JAMES W. NICKEL, Defendant : IN CUSTODY WITHDRAWAL AND ENTRY OF APPEARANCE TO THE PROTHONOTARY OF SAID COURT: Please withdraw my appearance as attorney of record for the Plaintiff, Tammy W. Nickel at the above captioned docket. Date f11410p by, 49alen R. Waltz, Esc 28 South Pitt Stred Carlisle, PA 17013 717-245-9688 Fax: 717-245-2165 Please enter my appearance as attorney of record on behalf of the Plaintiff, Tammy L. Nickel, at the above captioned docket. Respectfully submitted by: Date /COQ 'w Amy &`aehef Cert'fied Legal Intern MEGA ESMEYER Supervising Attorney FAMILY LAW CLINIC 45 North Pitt Street Carlisle, PA 17013 717-243-2968 Fax: 717-243-3639 C`1 C= a -tt -? va v co ? ., te c ",r ?p 3 TAMMY L. NICKEL, Plaintiff V. JAMES W. NICKEL, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 05-3733 CIVIL ACTION-LAW : IN CUSTODY CERTIFICATE OF SERVICE I, Amy Bracher, Certified Legal Intern, Family Law Clinic, hereby certify that I served a true and correct copy of the Withdraw and Entry Appearance on Michael A. Scherer, attorney of record in the above captioned matter, at 19 West South Street, Carlisle, PA by depositing a copy of the same in the first class United States mail on September 18, 2008. __? 7?° 1" Am er Certifwd Legal Intern Megan iesmeyer Supervising Attorney FAMILY LAW CLINIC 45 North Pitt Street Carlisle, PA 17013 (717) 243-2968 Fax: (717) 243-3639 rv co r7 cn fk.3 C: -?C TAMMY L. NICKEL IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. JAMES W. NICKEL DEFENDANT 2005-3733 CIVIL ACTION LAW IN CUSTODY ORDER OF COURT AND NOW, Thursday, September 18, 2008 , upon consideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear before Jacqueline M. Verney, Esq. , the conciliator, at 4th Floor, Cumberland County Courthouse, Carlisle on Wednesday, September 24, 2008 at 9:00 AM for a Pre-Hearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute; or if this cannot be accomplished, to define and narrow the issues to be heard by the court, and to enter into a temporary order. Failure to appear at the conference may provide grounds for entry of a temporary or permanent order. The court hereby directs the parties to furnish any and all existing Protection from Abuse orders, Special Relief orders, and Custody orders to the conciliator 48 hours prior to scheduled hearing. FOR THE COURT, By: /s/ ac ueline M. Verne Es . Custody Conciliator The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilites Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. YOU SHOULD TAKE THIS PAPER TO YOUR ATTORNEY AT ONCE. IF YOU DO NOT HAVE AN ATTORNEY OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 2 0 •C Wd 81 83S BUZ 301 -4CHBIS TAMMY L. NICKEL, Plaintiff V. JAMES W. NICKEL, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW IN CUSTODY : NO. 05-3733 CIVIL TERM ANSWER TO PETITION FOR SPECIAL RELIEF PURSUANT TO RULE 1915.13 AND NEW MATTER, AND NOW, comes the Respondent, Tammy L. Nickel, by and through her attorneys, the Family Law Clinic, and respectfully responds to the Petition for Special Relief Pursuant to Rule 1915.13 and for Contempt of the Petitioner, James W. Nickel, as follows: 1. ADMITTED. 2. ADMITTED. 3. ADMITTED. 4. ADMITTED. 5. DENIED. Byway of further answer, Mother, called Father's home phone and left a message which included the child's cell phone number as a number where they could be reached while visiting with family. Mother and the child have since returned to the address listed in paragraph 2 of Father's Petition for Contempt. 6. ADMITTED in part and DENIED in part. By way of further answer, Father has not had any contact with child since May 15, 2008. However, Mother made several attempts to reach him on his home phone and left contact information for the child as stated above. 7. ADMITTED. By way of further answer, Mother was temporarily unemployed and is living with friends at the address to which she admitted living in paragraph 2. 8. ADMITTED. 9. DENIED. Byway of further answer, a withdrawal of Galen Waltz was filed on September 18, 2007, and the entrance of appearance of the Family Law Clinic was entered on the same day. A true and correct copy of the withdrawal and entrance of appearance was sent to Michael Scherer, counsel for Mother, on the same day via first class United States Mail. 10. ADMITTED. 11. ADMITTED. 12. NEITHER ADMITTED NOR DENIED. Mother does not possess adequate knowledge to admit or deny the allegation set forth in this paragraph. 13. ADMITTED. By way of further answer, Respondent visited family in New York with the child for approximately 4 weeks. 14. DENIED. By way of further answer, Father has failed to follow the August 23, 2007 Order issued by this Honorable Court. In addition, Father has seldom exercised his right to phone contact permitted under the Order. 15. ADMITTED in part. By way of further answer, while Father has not expressed disinterest in seeing the child, Father has made past visitations with child intolerable for the child by questioning her about past incidents of sexual abuse. 16. DENIED. By way of further answer, Mother complied with the Court's Order until May 20, 2008. Following a May 15, 2008 visit with Father, child exhibited anxious behaviors including insomnia, nightmares, teeth grinding, inability to use the bathroom without Mother present, and difficulty with bladder control. 17. DENIED. By way of further answer, the child's anxious behaviors have decreased as a result of the time spent separated from Father. NEW MATTER 18. Paragraphs 1-17 are incorporated as if fully set forth herein. 19. Children and Youth Services indicated Gavin Nickel, Father's son, as a perpetrator of sexual abuse against the child. 20. Gavin Nickel continues to reside in Father's home. 21. Father had a regularly scheduled visit with the child on May 15, 2008. 22. Mother believes that on May 15, 2008 Father received notice that criminal charges were filed against his son, Gavin Nickel. Mother assumes this because she received notice of the charges on this day. 23. Mother believes that Father thinks the child is lying about the abuse against the child by Gavin. 24. Mother believes that Father interrogated the child regarding the sexual abuse by Gavin throughout the duration of the visit on May 15, 2008. 25. After the May 15, 2008 visit with Father, the child reported to Mother that Father said to her "Gavin didn't really touch you, did he?" 26. Mother believes that Father attempted to dissuade the child from testifying or speaking about the abuse perpetrated on her by Gavin during his May 15, 2008 visit. 27. The child experienced insomnia, fear, and difficulty using the bathroom following the May 15, 2008 visit with her father. 28. Mother believes that Father has undermined the progress the child has made in counseling by trying to convince her that she is not the victim of sexual abuse. 29. The Cumberland County District Attorney's Office is actively conducting a criminal investigation of Father on charges of Indecent Assault involving a child less than 13 years of age and Harassment. A letter from Jon Birbeck, Chief Deputy District Attorney, is attached as "Exhibit A." WHEREFORE, Mother requests that this Honorable Court enter an Order: 1. Denying Father's request for primary custody of the child, 2. Dismissing Father's Petition for Special Relief Pursuant to Rule 1915.13, 3. Directing that any New Matter is to be addressed at the at the Pre-Hearing Custody Conference scheduled for October 2, 2008 at 9:30a.m.in front of Jacqueline M. Verney, Esquire. Respectfully submitted, Date: Am Certified Legal Intern MEGA IESMEYER Supervising Attorney THE FAMILY LAW CLINIC 45 North Pitt Street Carlisle, PA 17013 (717) 243-2968 Fax: (717) 243-3639 DAVID J. FREED Dmmcr knopmr CUMBERLAND COUNTY OFFICE OF THE DISTRICT ATTORNEY VICTTM SERVICES DIVISION Ms. Amy Bracher Family Law Clinic Dale F. Shughart Community Law Center 45 North Pitt Street Carlisle, PA 17013 DONNA VANDEMORTEL EXEcvnve DMEMR September 16, 2008 Case Status Update Re: James Nickel (Adult) and Gavin Nickel (Juvenile) Dear Ms. Bracher: This letter is to inform you of the case status of father James Nickell and his son Gavin Nickel. Gavin Nickel was charged with Indecent Assault (MI) in May of 2008. At present, the charges for the juvenile case of Gavin Nickel have been withdrawn. These charges were withdrawn with the intent to consider reinstating charges in the future. Currently, there is an active criminal investigation on James Nickel for the charges of Indecent Assault involving a child less than 13 years of age and Harassment. These charges are presently under the investigation of the Cumberland County District Attorney's Office and the Mount Holly Springs Police Department. If you should have any questions or concerns regarding this matter, please feel free to contact me at (717)240-6210. UU.M FJMAM COrNTY COURTHOUSE, ONE COURTHOUSE SQUARE, ROOM 201, CARLISLE, PA 17013 PHONE: (717) 210-6220 148&697-0371 sn. 6220 FAX: (717) 240-7805 e-mail: victims@ccps.net Z . d xuA i3rNmiRN'1 A H WAi-2 : r anna OT Jae VERIFICATION I verify that the statements made in this Answer to Petition for Special Relief Pursuant to Rule 1915.13 and New Matter are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. A - A /'` Tamm3Wckel TAMMY NICKEL, Plaintiff V. JAMES NICKEL, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW IN DIVORCE NO. 05-3733 CIVIL TERM AFFIDAVIT OF SERVICE I, Karen Fernandez, hereby certify that I personally served the following individuals a true and correct copy of the Petition for Contempt Pursuant to Rule 1915.12, on September 29, 2008, via United States Postal Service First Class Mail, Postage Pre-Paid: Michael A. Scherer, Esq., O'Brien, Baric & Scherer, 19 West South Street, Carlisle, PA 17013. I verify that the statements made in this Affidavit of Service are true and correct to the best of my personal knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unworn falsification to authorities. Date: September 29, 2008 U 'AA Trl,("t aren Fernandez Certified Legal Intern z:zD }i? h3 TAMMY L. NICKEL, Plaintiff vi. JAMES W. NICKEL, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW IN CUSTODY NO. 05-3733 CIVIL TERM PETITION FOR CONTEMPT PURSUANT TO RULE 191512 AND NOW, comes Tammy L. Nickel, by and through her attorneys, The Family Law Clinic, and respectfully represents as follows: 1. Petitioner is the plaintiff, Tammy L. Nickel, an adult who resides at 109 Yates Street, Mount Holly Springs, Cumberland County, Pennsylvania. 2. Respondent is the defendant, James W. Nickel, an adult individual who resides at 107 Yates Street, Mount Holly Springs, Cumberland County, Pennsylvania. 3. The parties are the parents of Jamie L. Nickel, a minor child, born November 14, 2001. 4. The parties are governed by the August 27, 2007 Custody Order which is attached as Exhibit «A 5, 5. The August 23, 2007 Custody Order states that "the parties shall cooperate with family counseling." 6. Father has never attended or taken the child to counseling despite Mother's repeated attempts to have him comply with the Order. 7. Father has violated the August 23, 2007 order by failing to attend or cooperate with family counseling. 8. The August 23, 2007 Order directs that Father's visitation with the child must be supervised and that Father must not be left alone with the child. 9. Father claims that either his girlfriend or ex-wife acts as the supervisor of his visitation. 10. Mother believes that Father's girlfriend often does not adequately supervise the visits between Father and the child and conducts activities in other areas of the house while Father and the child are left alone. 11. Mother believes that on or about September 20, 2007 Father's ex-wife was to supervise his visit with the child, but instead she slept on the couch in Father's home for the duration of the visit. 12. Mother believes that neither Father's girlfriend nor ex-wife is an appropriate supervisor because neither one adequately supervises Father's visits with the child. 13. Father has violated the August 23, 2007 Court Order by failing to have appropriate supervision during his periods of visitation with the child. WHEREFORE, Mother requests that this Honorable Court enter an Order: 1. Finding Father in Contempt of the August, 23, 2007 Order of the Court; and 2. Granting Mother sole legal and physical custody of the child until the ongoing criminal investigations against Father result in a final disposition of the criminal case, or in the alternative 3. Appointing an impartial third party supervisor to be present during Father's visits with the child. Date: -D-C?? Cry, Respectfully submitted, Amy ac er Certified Legal Intern MEGA RIESMEYER Supervising Attorney THE FAMILY LAW CLINIC 45 North Pitt Street Carlisle, PA 17013 (717) 243-2968 Fax: (717) 243-3639 AUG 2 2'10 TAMMY L. NICKEL, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2005-3733 CIVIL ACTION - LAW JAMES W. NICKEL, Defendant : IN CUSTODY F AND NOW, thisB r? day of l , 2007, uPon consideration of the attached Custody Conciliati Report, it is ordered and directed as follows: 1. A Pre-Hearing Conference is cheduled ' urt Roo N o. of the Cumberland County Court House on the qi? day of , 2007 at TA- 3:30 o'clock P . M. 2. A Hearing is sche sled in Co oom N , of the Cumberland County C urt House, on the - day of , 2007, at V_A -0/m o'clock, H_. M., at which time testimony will be taken. For purposes of this Hearing, the Father shall be deemed to be the moving party and shall proceed initially with testimony. Counsel for each party shall file with the Court and opposing counsel a Memorandum setting forth each party's position on custody, a list of witnesses who will be 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. I The prior Orders of Court dated September 6, 2005, September 6, 2006, January 25, 2007 and July 23, 2007 are hereby vacated. The following shall remain in full force and effect, unless modified by further Order of Court or agreement of the parties: 4. The Mother, Tammy L. Nickel and the Father, James W. Nickel, shall have shared legal custody of Jaime L. Nickel, born November 14, 2001. Each parent shall have an equal right, to be exercised jointly with the other parent, to make all major non-emergency decisions affecting the Child's general well-being including, but not limited to, all decisions regarding her health, education and religion. Pursuant to the terms of 23 Pa.C.S. §5309, each parent shall be entitled to all records and information pertaining to the child including, but not limited to medical, dental, religious or school records, the residence address of the child and the other parent. To the extent one parent has possession of any such records or information, that parent shall be required to share the same, or copies thereof, with the other parent within such reasonable time as to make the records and information of reasonable use to the other parent. Both parents shall be entitled to frill participation in all educational and medical/treatment planning meetings and evaluations with regard to the minor child. Each parent shall be entitled to full and complete information from any physician, dentist, teacher or authority and copies of any reports given to them as parents including, but not limited to: medical records, birth certificates, school or educational attendance records or report cards. Additionally, each parent shall be entitled to receive copies of any notices which come from school with regard to school pictures, extracurricular activities, children's parties, musical presentations, back-to-school nights, and the like. 5. Mother shall have primary physical custody of the child. 6. Father shall have periods of supervised visitation every Tuesday and Thursday from 3:30 p.m. to 6:30 p.m. The adult supervisor may not permit Father or Gavin to be alone with the child. The supervisor may not be either of the paternal grandparents. 7. Father shall have telephone contact with the child every Monday, Wednesday and Friday at 4:00 p.m. 8. Father shall be responsible for all transportation and once the child starts school, she may be picked up from school provided the adult supervisor is present. 9. The parties shall cooperate with family counseling. 10. The parties may modify this Order by mutual agreement. In the absence of mutual consent, the terms of this Order shall control. BY THE COURT, cc: Galen R. Waltz, Esquire, counsel for Mother Michael A. Scherer, Esquire, counsel for Father TRUE COPY FROM Rf-CORD to T imony whLreaf, I here nto set my hand and th sea?f sai? ar, Pa. ? / TAMMY L. NICKEL, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2005-3733 CIVIL ACTION - LAW JAMES W. NICKEL, Defendant : IN CUSTODY PRIOR JUDGE: J. Wesley Oler, Jr., J. CUSTODY CONCILIATION SUMMARY REPORT IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE 1915.3-8, the undersigned Custody Conciliator submits the following report: The pertinent information concerning the Child who is the subject of this litigation is as follows: NAME DATE OF BIRTH CURRENTLY IN CUSTODY OF Jaime Nickel November 14, 2001 Mother 2. A Conciliation Conference was held August 21, 2007 with the following individuals in attendance: The Father, James W. Nickel, with his counsel, Michael A. Scherer, Esquire and Mother, Tammy L. Nickel, with her counsel, Galen R. Waltz, Esquire. 3. The Honorable J. Wesley Oler, Jr. previously entered Orders of Court dated September 6, 2005 and September 6, 2006 providing for shared legal custody, Mother having primary physical custody and Father having periods of partial physical custody. More recently, the Honorable J. Wesley Oler, Jr. entered an Order of Court dated January 25, 2007 referring the Petition for Custody, Defendant's Petition to Modify Custody, Defendant's Petition for Contempt and Plaintiff's Answer to Petition for Contempt and Counter Petition for Contempt for a hearing dated May 14, 2007. In the intervening time, an indicated finding of sexual abuse was filed by Cumberland County Children & Youth with Father as the perpetrator and the victim being a neighbor-of Father's and an indicated finding of sexual abuse with Father's minor son, who continues to reside in Father's home, as the perpetrator and the victim being the child who is the subject of this litigation. Thereafter, the Honorable J. Wesley Oler, Jr. entered an Order of Court dated July 23, 2007 in response to Mother's Petition for Special Relief, referring the matter to conciliation restricting Father's custodial periods to supervised by another adult, not the paternal grandparents. Father has appealed both `indicated findings' to the Department of Public Welfare. No hearings on the sexual abuse findings have been scheduled yet. 4. Father's position on custody is as follows: Father seeks shared legal and shared physical custody, vehemently denying the allegations of sexual abuse. He 'further believes that pending the DPW hearings, his parents are appropriate supervisors. He maintains that he was seeing the child almost every day, due to his work schedule. 5. Mother's position on custody is as follows: She seeks shared legal and primary physical custody with Father having supervised visitation. She asserts that the paternal grandparents are not appropriate supervisors as they told Children & Youth that, they did not believe the abuse occurred. 6. The Conciliator recommends an Order in the form as attached scheduling a Hearing and providing Father with supervised visitation and telephone contact with the child. Counsel for Father requests a pre-hearing conference within ten days to discuss the possibility of the paternal grandparents supervising Father's periods of custody. It is expected that the Hearing will require one day. Date ;l'acqu Oine M. Verney, Esquire Custody Conciliator VERIFICATION I verify that the statements made in this Petition for Contempt Pursuant to Rule 1915.12 are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. Tammy Nic TAMMY NICKEL, Plaintiff V. JAMES NICKEL, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW IN CUSTODY NO. 05-3733 AFFIDAVIT OF SERVICE CIVIL TERM I, Karen Fernandez, hereby certify that I personally served the following individuals a true and correct copy of the Answer to Petition for Special Relief Pursuant to Rule 1915.13 and New Matter, on September 29, 2008, via United States Postal Service First Class Mail, Postage Pre-Paid: Michael A. Scherer, Esq., O'Brien, Baric & Scherer, 19 West South Street, Carlisle, PA 17013. I verify that the statements made in this Affidavit of Service are true and correct to the best of my personal knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unworn falsification to authorities. Date: September 29, 2008 Certified Legal Intern ? ,..> -- ;x ? ? _ cr `F"1 G,n ---? ? j E 1,? ? ?? ?? ? ti t 1 M K ? ._F '? t . ! w . 'j 4? t •r "? b TAMMY L. NICKEL, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW IN CUSTODY JAMES W. NICKEL, Defendant NO. 2005-3733 CIVIL TERM PRAECIPE TO PROCEED IN FORMA PAUPERIS TO THE PROTHONOTARY: Kindly allow Tammy L. Nickel, Plaintiff, to proceed in forma pauperis. The Family Law Clinic, attorneys for the party proceeding in forma pauperis, certifies that we believe the party is unable to pay the costs and that we are providing free legal service to the party. Respectfully submitted, Date q `? 0 b Am Cerifwxf Legal Intern MEG N RIESMEYER Supervising Attorney FAMILY LAW CLINIC 45 North Pitt Street Carlisle, PA 17013 717-243-2968 -. t' _ I"`- ; °'*:: X"?7:`?` ? ', tr;J 41 :c ? . ? :? TAMMY L. NICKEL IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. JAMES W. NICKEL DEFENDANT 2005-3733 CIVIL ACTION LAW . IN CUSTODY ORDER OF COURT AND NOW, Wednesday, October 01, 2008 , upon consideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear before Jacqueline M. Verney, Esq. , the conciliator, at 4th Floor, Cumberland County Courthouse, Carlisle on Thursday, October 02, 2008 at 9:30 AM for a Pre-Hearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute; or if this cannot be accomplished, to define and narrow the issues to be heard by the court, and to enter into a temporary order. Failure to appear at the conference may provide grounds for entry of a temporary or permanent order. The court hereby directs the parties to furnish any and all existing Protection from Abuse orders, Special Relief orders, and Custody orders to the conciliator 48 hours prior to scheduled hearing. FOR THE COURT, By: /s/ ac ueline M. Verne Esq., I Custody Conciliator The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilites Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. YOU SHOULD TAKE THIS PAPER TO YOUR ATTORNEY AT ONCE. IF YOU DO NOT HAVE AN ATTORNEY OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 . ? he ?-? gip. / o/ AZ-K 0 C 3 :E Wd I -130 HE .1...114 , ,.. OCT 0 6 Zuud 4 TAMMY L. NICKEL, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2005-3733 CIVIL ACTION - LAW JAMES W. NICKEL, Defendant : IN CUSTODY ORDER OF COURT AND NOW, this day of /) J , 2008, upon consideration of the attached Custody Conciliation Report, it is ordered and directed as follows: 1. A Hearing is scheduled in Court Room No. , of the Cumberland County Court House, on the day of , 2001, at/ - 30 o'clock,. M., at which time testimony wi be taken. or purposes of this Hearing, the Father shall be deemed to be the moving party and shall proceed initially with testimony. Counsel for each party shall file with the Court and opposing counsel a Memorandum setting forth each party's position on custody, a list of witnesses who will be expected to testify at the Hearing and a summary of the anticipated testimony of each witness. These Memoranda shall be filed at least five days prior to the Hearing date. 2. Pending further Order of Court or agreement of the parties, the prior Order of Court dated August 23, 2007 shall remain in full force and effect, with the following addition: 3. Counseling for the child shall resume immediately. 4. The parties may modify this Order by mutual agreement. In the absence of mutual consent, the terms of this Order shall control. C ?.chael A. Scherer, Esquire, counsel for Fiber ./Amy Bracher, certified legal intern, counsel for Mother Megan Riesmeyer, Esquire, Family Law Clinic COP I "es env t LL 16171019 trtl BY THE COURT, 1_ c :01 V L- 130 BOOT ?iJ z . tl CJ r I ?. ?V - :174 r -I& I TAMMY L. NICKEL, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2005-3733 CIVIL ACTION - LAW JAMES W. NICKEL, Defendant : IN CUSTODY PRIOR JUDGE: J. Wesley Oler, Jr., J. CUSTODY CONCILIATION SUMMARY REPORT IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE 1915.3-8, the undersigned Custody Conciliator submits the following report: The pertinent information concerning the Child who is the subject of this litigation is as follows: NAME DATE OF BIRTH CURRENTLY IN CUSTODY OF Jamie Nickel November 14, 2001 Mother 2. A Conciliation Conference was held on October 2, 2008 with the following individuals in attendance: the Father, James W. Nickel, with his counsel, Michael A. Scherer, Esquire and the Mother, Tammy L. Nickel, with her counsel, Amy Bracher, certified legal intern and Megan Riesmeyer, Esquire, Family Law Clinic. 3. The Honorable J. Wesley Oler, Jr. previously entered an Order of Court dated August 23, 2007 providing for shared legal custody, Mother having primary physical custody and Father having periods of supervised visitation. Father filed a Petition for Contempt and a Petition for Special Relief because Mother stopped all visits in May, 2008. Mother filed an Answer and New Matter. 4. Father's position on custody is as follows: Father seeks shared legal and periods of partial physical custody. Father asserts that the indicated finding of sexual abuse against him regarding another child has been expunged by DPW. There are allegations of sexual abuse perpetrated by Father's son, Gavin, against the child in question, but Father maintains that his son is innocent. Father would supervise any contact between his son and the child in question. Father asserts that Mother stopped all visits in May, 2008. Father is requesting a one hour hearing on the Petition for Special Relief and another hearing thereafter, if necessary. Father is in favor of counseling for the child to resume. 4 - 6 • 5. Mother's position on custody is as follows: Mother seeks shared legal and primary physical custody of the child with Father's supervised visits being suspended because in May, 2008 Father questioned the child about her allegations of sexual abuse against Father's son, Gavin, and because the adult supervisor has not always been in the same room with the child during visits. Mother is in favor of counseling for the child to resume. 6. The Conciliator recommends an Order in the form as attached scheduling a Hearing and continuing the prior Order of Court. It is expected that the Hearing will require one hour. Fv-6 -oYY Date tiU ac eline M. Verney, Esquire Custody Conciliator TAMMY L. NICKEL, Plaintiff/ Petitioner V. JAMES W. NICKEL, Defendant/ Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW IN CUSTODY : NO. 05- 3733 CIVIL TERM PETITION FOR APPOINTMENT OF GUARDIAN AD LITEM Tammy L. Nickel, Petitioner, through her counsel, The Family Law Clinic, hereby petitions this Court for an Order appointing a Guardian Ad Litem for her minor child, Jamie L. Nickel, in the above-captioned matter and in support thereof avers the following: 1. The parties in this matter are the natural parents of minor Child Jamie L. Nickel. 2. The Order of the Court dated October 6, 2008 refers back to the Order of Court dated August 23, 2007 and places the Child in the primary custody of the Mother with Father having periods of supervised visitation. 3. Father and his son Gavin Nickel, the Child's half brother, have both been the subject of different sexual abuse investigations by Cumberland County Children and Youth Services and the Cumberland County District Attorney's Office. 4. The Children and Youth Services' indicated finding against Father has been expunged, however; the Cumberland County District Attorney's Office is continuing its investigation. 5. The allegations of abuse have heightened tensions between Mother and Father and placed a strain on their ability to communicate. 6. Both parties remain concerned about the Child's well-being. 7. The Petitioner believes it would be in the best interest of the Child for a Guardian Ad Litem to be appointed. 8. The Child has exhibited a greater level of trust when dealing with female counselors, therefore Petitioner believes it would be in the best interest of the Child for the Guardian Ad Litem to be a female. 9. The Petitioner understands that the Guardian Ad Litem will report directly to the Court, and that the Guardian Ad Litem's findings may or may not favor the Petitioner's case. 10. The Petitioner is currently receiving free legal services through the Family Law Clinic and is unable to pay the costs of a Guardian Ad Litem. 11. The Petitioner requests that the costs for the appointment of Guardian Ad Litem are to be borne by Cumberland County. 12. The undersigned has sought concurrence of opposing counsel pursuant to C.C.R.P. 208.2(d) on November 20, 2008 via telephone conversation. Counsel for Respondent, Michael A. Scherer, concurred to the appointment of a Guardian Ad Litem but did not concur to the specific request that the Guardian Ad Litem be a female. 13. The Honorable Judge Wesley Oler, Jr., is assigned to this case. WHEREFORE, Petitioner respectfully requests that the Court appoint Guardian Ad Litem for the minor Child, Jamie L. Nickel and that the costs for the appointment be borne by Cumberland County. Further, the petitioner requests that the Guardian Ad Litem be female. Date: Certi ed Legal Intern MEGA RIESMEYER Supervising Attorney FAMILY LAW CLINIC 45 North Pitt Street Carlisle, PA 17013 (717) 243-2968 Fax: (717) 243-3639 VERIFICATION I verify that the statements made in this petition are true and correct. I understand that false statements herein are subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities. Date: 111DK Tammy Nic e CERTIFICATE OF SERVICE I, Amy Bracher, Certified Legal Intern, the Family Law Clinic, hereby certify that I am serving a true and correct copy of a Petition to Modify Custody Order on the following person by first class U.S. Mail, postage prepaid, this 20th day of November, 2008: Michael A. Scherer, Esquire O'Brien, Baric, & Scherer 19 West South Street Carlisle, PA 17013 Amy rac er Certi ed Legal Intern FAMILY LAW CLINIC 45 North Pitt Street Carlisle, PA 17013 717-243-2968 ra P n oi' p N r M TAMMY L. NICKEL, Plaintiff V. JAMES W. NICKEL, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-3733 CIVIL TERM IN RE: PETITION FOR APPOINTMENT OF GUARDIAN AD LITEM ORDER OF COURT AND NOW, this 24`x' day of November 2008, upon consideration of Plaintiff's Petition for Appointment of Guardian Ad Litem, the petition is denied. Amy Bracher Certified Legal Intern Megan Riesmeyer, Esq. Supervising Attorney Family Law Clinic 45 North Pitt Street Carlisle, PA 17013 For the Plaintiff Michael A. Scherer, Esq. 19 West South Street Carlisle, PA 17013 Attorney for Defendant :rc BY THE COURT, _.? ,, r,.,t i; ;, ? -s i ';? J TAMMY L. NICKEL, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS CIVIL ACTION - LAW IN CUSTODY JAMES W. NICKEL, Defendant NO. 2005-3733 CIVIL TERM ORDER OF COURT AND NOW, this 15th day of January, 2009, upon consideration of (a) Defendant's Petition Rule 1915.2, (b) Defendant's Petition for to Rule 1915.13 and for contempt, and (c) Contempt pursuant to Rule 1915.12 with re Jamie L. Nickel (DOB: November 14, 2001) held on this date, the record is declared taken under advisement. amily Law Clinic 45 North Pitt Street Carlisle, PA 17013 ichael A. Scherer, Esquire O'Brien, Baric & Scherer 19 West South Street Carlisle, PA 17013 :mlc for Contempt pursuant to Special Relief pursuant Plaintiff's Petition for spect to the parties child and following a hearing closed and matter is By the Court, ji?ASWd r ?a'tf`l -IeN 1o 03 Nvp HE ,A TAMMY L. NICKEL, Plaintiff V. JAMES W. NICKEL, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-3733 CIVIL TERM IN RE: PETITIONS FOR CONTEMPT AND SPECIAL RELIEF AND NOW, this 20`x' day of January, 2009, upon consideration of (a) Defendant's Petition for Contempt Pursuant to Rule 1915.2, (b) Defendant's Petition for Special Relief Pursuant to Rule 1915.13 and for Contempt, and (c) Plaintiff's Petition for Contempt Pursuant to Rule 1915.2, with respect to the parties' child, Jamie L. Nickel (d.o.b. November 14, 2001), and following a hearing held on January 15, 2008, it is ordered and directed as follows: 1. Plaintiff is adjudicated in contempt and she is sanctioned to pay a fine of $250.00 and to undergo a period of imprisonment in the Cumberland County Prison of one month; the condition of purge with respect to the prison sentence is that she hereafter comply fully with the court's orders regarding custody of the parties' child; 2. Defendant is adjudicated in contempt and he is sanctioned to undergo a period of imprisonment in the Cumberland County Prison of one week; the condition of purge with respect to the prison sentence is that he hereafter comply fully with the court's orders regarding custody of the parties' child; 3. With respect to custody of the parties' child, and pending further order of court, it is ordered and directed as follows: a. Primary physical custody of the child shall be in Plaintiff, the mother; b. Temporary or partial physical custody of the child shall be in Defendant, the father, at the following times: 5? •8 A ZZ t,'Vr 6001 ::Hi -40 r` ' V. {'d (1) During the school year, (a) Every other weekend, from Saturday at noon until Sunday at 7:00 p.m.; (b) On Thanks-giving Day, from 3:00 p.m. until 7:00 p.m.; (c) During the Christmas recess, from 3:00 p.m. on Christmas Day until 7:00 p.m. on December 30; (2) During the summer, for one week out of every three weeks, commencing on Sunday at noon and ending on Sunday at noon; the father's first week in the summer shall begin on the second Sunday following the commencement of the child's summer vacation from school; c. Transportation for purposes of exchanges of custody shall be the responsibility of the party receiving custody; d. Neither party shall permit the child to be in the same room as Defendant's son Gavin unless another adult is also present in the room; and e. Both parties shall permit liberal telephone contact between the child and the non-custodial parent. BY THE COURT, „-? esley Oler, ., J. Amy Bracher Certified Legal Intern Megan Riesmeyer, Esq. Supervising Attorney Family Law Clinic 45 North Pitt Street Carlisle, PA 17013 For the Plaintiff Michael A. Scherer, Esq. 19 West South Street Carlisle, PA 17013 Attorney for Defendant rc