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Home My WebLink About87-0092IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 92 CIVIL 1987 DIVORCE EDWARD L. STONER, Plaintiff, V. BETTY J. STONER, Defendant PETITION FOR MODIFICATION OF CUSTODY (3RIFFLE, TURO & (~RELL ATTORNEYS-AT-LAW 200 NORTH HANOVER STREET CARLISLE, PENNSYLVANIA 1701,3 SUITE ~0~ 3461 ~VIARKET ...~TREET CAMI:::> HILL, PENNSYLVANIA 17011 Commonwealth of Pennsylvania County of Cumberland SS: I, Lawrence E. 3~/elke__~r.., Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case therein stated, wherein Ed_~nd L_, Stone_r_ Plaintiff, and Ratty ,1- Stoner and #658 HBG. 1988 In TESTIMONY WHEREOF, this -- 24th Defendant ~, as th~: same remains of record before the said Court at No. 92 C-i v-i '1 of Term, A.D. 19 87 , have hereunto set my hand and affixed thc seal of said Court 1. Harold E. Sheely President Judgeofthe Ninth Judicial District, composed of the County of Cumberland, do certify that Lawrence E. Welker, Prothonotary by whom thc annexed record, certificate and attestation wcrc madc and given, and who, in his own proper handwriting, thereunto subscribed his name and affixed thc scm of thc Court of Common Pleas of said County, was, at the time of so doing, and now is Prothonotary in and for said County of Cumber__land in the Commonwealth of Pennsylvania, duly commissioned and qualified to all of whose acts as such full faith and credit are and ought to be given as well in Courts of udicature as elscwhcrc, and that the said record, certificate and attestation arc in due form of law and made by thc proper officer. President .I udgc Commonwealth of Pennsylvania ss: County of Cumberland l, awronca--E.._lq_el kof Prothonotary 0f the Court of Common Pleas in and for the said County. do certify that thc Honorable _JA.o rc~] d F~_Stxe-ely bv whom thc foregoing attestation was made. and who has thereunto subscribed his name, was, at the time of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of thc Peace in and for said County, duly Commissioned and qualified; to all whose acts as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere. IN TESTIMONY WHEREOF. I have hereunto set my hand and affixed the seal of said Court this ---- ~-/ ~ Proth(motary - 5 Among the Records and Proceedings enrolled in thc court of Common Picas in and for the county of Cumberland in thc Commonwealth of Pennsylvania & #658 HBG. 1988 to No. 92 Civil 1987 Term, 19 __ is contained the following: COPY OF Appearance DOCKET ENTRY EDWARD L. STONER vs BETTY J. STONER January 14, 1987, Complaint for Custody and Order filed: You, Betty J. Stoner, Defendant, have been sued in Court to obtain custody of the children, Stacy L. Stoner and Nicole L. Stoner. You are ordered to appear in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Cumberland County, Pa. on the 2nd day of March, 1987 at 1:30 p.m. for a hearing. If you fail to appear as provided in this order or to bring the children, an Order for custody, partial custody, or visitation may be entered against you or the Court may issue a warrant for your arrest. By the Court, Harold E. Sheely, P.J. January 21, 1987, Agreement of the Parties and Order of Court filed: AND NOW, this 21st day of January, 1987, by agreement of Edward L. Stoner and Betty J. Stoner, and in accordance with the written agreement attached hereto, it is ordered and directed as follows: 1. Legal & Physical custody of the minor children Stacy L. Stoner, born December 29, 1974 and Nicole L. Stoner, born June 21, 1982 shall be and remain in Edward L. Stoner, the natural father, pending the hearing scheduled in the above- captioned action on Masrch 2, 1987. 2. The mother, Betty J. Stoner, shall have rights of partial custody of the children at such times as the parties mutually agree taking into account the welfare and schedules of the children. Betty J. Stoner shall telephone Edward L. Stoner to make arrangements to see the children before stopping by their residence to pick them up. This court retains jurisdiction in these proceedings. By the Court, Harold L. Sheely, P.J. March 18, 1987~ Order of Court filed: AND NOW, March 13, 1987, at 2:55 p.m. after hearing and also after having spoken with Stacey in chambers with counsel present, the court believes that the best of interest of the children would be to award custody as follows: Custody of Stacy Stoner, born December 29, 1974 is awarded to her father, Edward Stoner. Custody of Micole Stoner, age four, is awarded to her mother Betty Stoner. The court directs that the parties enter into a suitable Page 2 34 - 37 38 - September 21, 1988, Notice of Appeal filed: Notice is hereby given that Edward L. Stoner, Plaintiff above-named, hereby appeals to the Superior Court of Pa. from the Order entered in this matter on the 22nd day of August 1988. This Order has been entered in the docket as evidenced by the attached copy of the docket entry By Bradley L. Griffie, Esq. Atty. for Plaintiff 39 September 26, 1988, No. 658 HBG. 1988 assigned by the Superior Court of Pa. 40 September 23, 1988, Order of Court filed: AND Now, September 23, 1988, notice having been received that an appeal has been taken in the above-captioned matter, it is ordered and directed that the appellant forthwith file with the trial judge a concise statement of the matters complained of on the appeal together with reference to any statutory authority or any rule of court. Upon the failure of the appellant to file such reasons within ten (10) days, the court will presume that the appeal has been abandoned. By the Court, Harold B. Sheely, P.g. - 46 Miscellaneous Paper ( Parent/Child Evaluation) - 55 October 3, 1988, Plaintiff's Statement of Matters Complained of Pursuant to Pa. R.A.P. 1925 - 252 December 7, 1988, Transcript filed - 262 December 12, 1988, IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 BEFORE SHEELY, P.J. filed BRADLEY L GRIFFIE RON TURO KEITH A BLANK GLEN R GRELL FRED H HAlt JAMES K JONES Griffie, Turo, Blank & Grell ATTORNEYS AND COUNSELLORS AT LAW 200 NORTH HANOVER STREET CARLISLE, PA 17013 ~7171 243.5551 SUITE 102 355 NORth 21 ST STREET CAmP HILL, PA 17011 (717) 737-5856 16 NOrth MARKET STREET MECHANICSbURg, PA 17055 (717) 766-1910 REPLY To: May 14, 1987 Carlisle Honorable Harold E. Sheely Judges Chambers Courthouse Carlisle, PA 17013 Re: Stoner v. Stoner No. 92 Civil 1987 Dear Judge Sheely: As you may recall, the above-captioned case was resolved by an Order of Court issued by you on March 31, 1987 following two partial days of hearings regarding custody of two children. The parties' children are Stacy Stoner, born December 29, 1974 and Nicole Stoner, born June 17, 1982. I have enclosed a copy of your Order f-or your reference in this regard. One major issue, if not the major issue, in this custody hearing was the Defendant Betty J. Stoner's relationship with a Lee Lehman. Mr. Lehman was incarcerated in the Cumberland County Prison for a period of time due to improper sexual contacts with a minor. Mr. Stoner's extreme concern for his children being around such an individual was a primary issue and a main point of testimony in this hearing. As you may also recall, the Defendant, Betty J. Stoner, as well as her counsel, Robert L. O'Brien, assured us as well as the Court that Mrs. Stoner's relationship with Mr. Lehman was over and that there would be no contact with Mr. Lehman and the parties' children. In fact, if my recollection serves me, Mr. O'Brien offered to have placed in the Order of Court a clear statement that Mr. Lehman was not to be around the parties' children. Despite the testimony that was presented, Mrs. Stoner has very frequently taken the children around Mr. Lehman. In fact, Mrs. Stoner's relationship with Mr. Lehman causes the children to be with Mr. Lehman on almost a weekly basis. Particularly due to the stress and concern this causes for Stacy Stoner, I respectfully request that the Court take the opportunity to meet with Mr. O'Brien and myself to Honorable Harold E. Sheely Stoner v. Stoner May 14, 1987 Page 2 consider amending the Order of Court that was entered on March 13, 1987. I am asking that the Court consider adding a paragraph to the Order that clearly indicates that the children should not be placed in the presence of Mr. Lehman. If the Court would prefer to have brief testimony regarding Mr. Lehman's character and his past criminal history, then I request that the Court either set a brief hearing accordingly or advise me so I can prepare a brief petition for this purpose., The children and Mr. Stoner have continued in their counseling with psychologist, Sally Rooney, who had advised both parties to continue in counseling. This counseling has apparently reflected a concern with both of the children that they not be around Mr. Lehman not only due to their understanding of his past history but also due to his actions with the children. I am providing Mr. O'Brien, who represented Ms. Stoner at the hearing, with a copy of this letter so that he can either respond or concur with our request that the Order of Court be amended. If his concurrence on such an amendment is not forthcoming, I again request that the Court either schedule a brief hearing for purposes of this amendment or advise me accordingly so that I can prepare a brief petition in this regard. Sincerely yours, GRIFFIE, TURO, BLANK & GRELL Bradley L. Griffie BLG/lar cc: Robert L. O'Brien, Esquire Edward L. Stoner EDWARD L. STONER, Plaintiff Ve BETTY J. STONER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 92 CIVIL 1987 IN RE: CUSTODY ORDER OF COURT AND NOW, March 13, 1987, at 2:55 p.m., after hearing and also after having spoken with Stacy in Chambers with counsel ~resent, 'the court believes that the best interest of the children would be to award custody as follows: '~ Custody of Stacy Stoner, born December 29, 1974, is awarded to her father, Edward Stoner. Custody of Nicole Stoner, age four, is awarded to her mother, Betty St'oner. The court directs that the parties enter into a suitable partial custody arrangement for the children and upon request the court will set an order accordingly. The court requests that either counsel petition the court sometime in early August for an additional hearing on this case and the court will then review the case from today until that time and determine whether or not this order should be changed. /~F-~adley Griffie, Esquire or Plaintiff Robert O'Brien, Esquire For Defendant By the Court, Harold E. Sheely, P.J. :cfd HAROLD E. SHEELY PRESIDENT JUDGE COMmONWEALTh OF PENNSYlVANIa COURTHOUSE P. O. BOX 189 CARLISLE. PA. 17013 (717) 249-1133 June 1, 1987 Bradley L. Griffie, Esquire Griffie, Turo, Blank & Grell 200 North Hanover Street Carlisle, Pennsylvania 17013 In Re: Stoner v. Stoner No. 92 civil 1987 Dear Mr. Griffie: I acknowledge receipt of your letter concerning Mr. Stoner's concern of the children being with his former wife and Mr. Lehman. If you and Mr. O'Brien are not able to resolve this matter between yourselves, I would suggest that you petition the court for a brief hearing as to whether or not the order should be amended to prohibit the children being in the presence of Mr. Lehman. Very truly yours, Harold E. Sheely HES/pbf cc: Robert L. O'Brien, Esquire EDWARD L. STONER, Plaintiff BETTY J. STONER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 92 CIVIL 1987 CUSTODY ORDER OF COURT You, Betty J. Stoner have been sued in Court to obtain custody of the child, Nicole L. Stoner, born June 21, 1982· You are ordered to appear in Courtroom Number / , Cumberland County Courthouse, Carlisle, Cumberland County, Pennsylvania on ~" ~'~ ~( ~~ 1988 at o clock ~ .m. for , '~ the~,? .day of ~ '~' ' a hearing. If you fail to appear as provided in this Order or to bring the child an Order for custody, partial custody, or visitation may be entered against you or the Court may issue a warrant for your arrest. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE· IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator Cumberland County Courthouse Carlisle, Pennsylvania 17013 (717) 249-1133 BY THE COURT, EDWARD L. STONER, Plaintiff Ye BETTY J. STONER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 92 CIVIL 1987 CUSTODY PETITION FOR MODIFICATION OF CUSTODY 1. Plaintiff is Edward L. Stoner, an adult individual currently residing at R.D. #1, Box 16, Shermansdale, Perry County, Pennsylvania. 2. Defendant is Betty J. Stoner, an adult individual currently residing at 30lA North Bedford Street, Carlisle, Cumberland County, Pennsylvania. 3. The parties are the natural parents of Stacy L. Stoner born December 29, 1974 and Nicole L. Stoner, born June 21, 1982. 4. By Order of Court dated January 21, 1987, which was entered upon agreement by the parties, physical and legal custody of the parties' children was placed in the Plaintiff. A copy of said Order is attached hereto and incorporated herein as Exhibit "A". 5. Following the hearing on March 13, 1987, the Court entered an Order which is attached hereto and incorporated herein as Exhibit "B" setting forth provisions that the child, Stacy L. Stoner, be in the physical custody and care of her father, the Plaintiff, and the child, Nicole L. Stoner, be placed in the physical custody and care of her mother, the Defendant. By further modification of this Order, on July 20, 1987, the Court amended the Order to provide that the Defendant shall not have her paramour, Lee Lehman, in the presence of the parties' child, Stacy L. Stoner, with a copy of said Order being attatched hereto and incorporated herein as Exhibit "C". 6. Since the entry of the Court's Order placing custody of Nicole L. Stoner with the Defendant, the circumstances of the parties have changed such that it is now in the best interest of the parties' children for Nicole L. Stoner to be placed in the'physical custody of the Plaintiff for reasons hereinafter set forth. 7. Since the entry of the Court's Order, the parties' circumstances have changed as follows: (a) The 'relationship between the parties' daughter, Stacy L. Stoner, and the Defendant has completely deteriorated due to the actions of the Defendant. (b) The lack of any personal relationship between the Defendant and Stacy L. Stoner has ~he effect of providing an extremely limited contact between the two children. (c) The parties' child, Nicole L. Stoner, who is six years old, has had physical confrontations with the Defendant's paramour where the child has been struck and injured by the paramour. (d) The Defendant has shown an inability to provide the proper care and guidance for Nicole L. Stoner's emotional, mental and social growth since she was provided with custody of the child in March 1987. (e) The child, Nicole L. Stoner, has repeatedly requested of the Plaintiff that she be permitted to live with him along with her sister, Stacy L. Stoner. (f) The Plaintiff 'has provided and will continue to provide a more stable home environment and greater emotional, mental and physical stability for both of the parties' children. (g) It is in the parties' children's best interest for the children to be raised together and for them to reside in the same household. WHEREFORE, Plaintiff requests your Honorable Court to set a time and place for a hearing at which Plaintiff requests your Honorable Court to enter a new Order relative to the custody of his children providing him with primary physical custody of his children, Stacy L. Stoner and Nicole L. Stoner. Respectfully submitted, GRIFFIE, TURO & GRELL ~. 'Griffie, Esquire 200 North Hanover Street Carlisle, Pennsylvania 17013 (717) 243-5551 I VERIFY THAT THE STATEMENTS MADE IN THE FOREGOING DOCUMENT ARE TRUE AND CORRECT. I UNDERSTAND THAT FALSE STATEMENTS HEREIN MADE ARE SUBJECT TO THE PENALTIES OF 18 PA.C.S. ~4904 RELATING TOUNSWORN FALSIFICA- TION TO AUTHORITIES. ~EDWARD L. ~T~NER ' EDWARD L. STONER, Plaintiff Vo BETTY J. STONER, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW : : NO. 92 CIVIL 1987 : CUSTODY ORDER OF COURT AND NOW, this~l day of January, 1987, by agreement of Edward L. Stoner and Betty J. Stoner, and in accordance with the written Agreement attached hereto, it is ordered and directed as follows: 1. Legal and physical custody of the minor children Stacy L. Stoner, born December 29, 1974 and Nicole L. Stoner, born June 21, 1982, shall be and remain in Edward L. Stoner, the natural father, pending the i~azing scheduled in the abcva-ca~tioned action on March 2, 19~7. 2. The mother, Betty J. Stoner, shall have rights of partial custody of the children at such times as the parties mutually agree taking into account the welfare and schedules of the children. Betty J. Stoner shall telephone Edward L. Stoner to make arrangements to see the children before stopping by their place of residence to pick them up. This court retains jurisdiction in these proceedings. BY THE COURT, ^ 1RUE COPY FI<O;',~ .n Testimony whe~of, I here unto ;et rr~y ~nd ~he seal of saiJ Cou~ ~t C~rl~sle, Pa. rhi~.~_[~..day of ....... ~~: ......... 19 ............. .... ............ o~, EXH~ BIT "A" EDWARD L. STONER, : Plaintiff : : : BETTY J. STONER, : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIl, ACTION - LAW NO. 92 CIVIL 1987 CUSTODY AGREEMENT OF THE PARTIES The Plaintiff, Edward L. Stoner, and the Defendant, Betty J. Stoner, hereby agree as follows: 1. Legal and physical custody of the minor children Stacy L. Stoner, born December 29, 1974 and Nicole L. Stoner, born June 21, 1982, shall be and remain in Edward L. Stoner, the natural father, pending the hearing scheduled in the above-captioned action on March 2, 1987. 2 ~he mother, Betty J St .... , ~hall have rights custody of the children at such times as the parties mutually agree taking into account the welfare and schedules of the children. Betty J. Stoner shall telephone Edward L. Stoner to make arrangements to see the children before stopping by their place of residence to pick them up. 3. The parties agree that this agreement shall be entered as an Order of Court and filed to the above number and year. witness,/ Date Date "1 "---~:'- ' . ' ~ ' .... .: -' .- t --- \ Be'tty J. Stoner EDWARD L. STONER, Plaintiff BETTY J. STONER, De fendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 92 CIVIL 1987 IN RE: CUSTODY ORDER OF COURT AND NOW, March 13, 1987, at 2:55 p.m., after hearing and also after having spoken with Stacy in Chambers with counse.1 p_resent, the court believes that the best interest of the children would be to award custody as follows: '~' Custody of Stacy Stoner, born December 29, 1974, is awarded to her father, Edward Stoner. Custody of Nicole Stoner, age four, is ......~-=-_ ~ ~-- ~c~h~r... .. .... ~t~y S~o~. ~h~ c. 6ur~. directs that the parties enter into a suitable partial cUstody arrangement for the children and upon request the court will set an order accordingly. The court, requests that either counsel petition, the court sometime in early August for an additional hearing on this case and the court will th~n reView the case from today until that time and determine whether or not this order should be changed. By the cOurt, ey Griffie, Esquire laintiff Harold E. Sheely, P.J. Robert O'Brien, Esquire For Defendant :cfd EXHIBIT ,,B,~ EDWARD L. STONER, Plaintiff V. BETTY J. STONER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 92 CIVIL 1987 CUSTODY IN RE: CUSTODY ORDER OF COURT AND NOW, July 20, 1987, at 3:45 p.m., after hearing, the prior order of March 13, 1987, is amended to read that at no time shall Betty J. Stoner have Lee Lehman in her presence when Stacy is with her. In all other aspects, the prior order is ratified and confirmed. By the Court, Griffie, Esquire intiff Taylor Andrews, Esquire For Defendant :cfd . Harold E. Sheely, PoJo EXHIBIT "C" 10- 17 18 - 20 21 22 - 24 25 - 3O ~0 - 33 custody arrangement for the children and ~;porl request the court will set an order accordingly. The court requests th. either counsel petition the court sometime in early August for an additional hearing on this case and the court wil. 1 then review the case from today until that time and determine whether or not this order should bet changed. By the Court, Haro].d E. Sheely, P.d. June 4, 1987, Petition for Interim Hearing and Order of Court filed: AND NOW, this 4th day of June, 1987, u presentation and consideration of the within Petition, a hear- ing is set for Monday, the 20th day of July, 1987 at 1:30 o'clock p.m. in Courthouse Number 1 of the Cumberland County Courthouse. By the Court, Harold E. Sheely, P.d. June 16, 1987, Affidavit of Service filed July 28, 1988, Order of Court filed: AND NOW, duly 20, 1987, at 3:45 p.m. after hearing, the prior order of March 13, 1987, is amended to rerad that at no time shall Betty d. Stoner have Lee Lehman in her presence when Stacy is with. her. In ali_ other aspects, the prior order is ratified and confirmed. By the Court, Harold E. Sheely, p.d. July 21, 1988, Affidavit of Service filed July 28, 1988, Defendant's answer to petition for modification of custody filed August 26, 1988, Order of Court filed: AND NOW, August 22, 1988, at 5:30 p.m. after hearing, 'the petition by Edward L. Stoner, for custody of his daughter, Nicole Stoner, born June 17, 1982 is refused. The court believes at this time considering the circumstances and the feelings between the parents and the fact that Stacy is not compelled to visit with her mother, that if the younger daughter were permitted to return to her father within a short period of time the same thing would happen there and the mother would never have any visitation with either of the daughters. The Court at this time does not believe that the best interest of Nicole would be for custody to be awarded to her father. The court directs that the partial custody agreement entered into between the parties for both girls be continued. By the Court, Harold E. Sheely, PJ September 21, 1988, Praecipe for Entry of Adverse Judgment filed: Please enter judgment for Betty J. Stoner, Defendant against Edward L. Stoner, Plaintiff pursuant to the Order of Court by the Honorable Harold E. Sheely, which Order is attached hereto. Vol. S. Pg. 65 By Bradley L. Griffie Vol. S. Pg.65 Atty. for Plaintiff 02 Civil Term 198'/ #658 HBG. 1988Term 19___ Edward L. Stoner Versus .__P~eA:ty ..J - ,qtnner FFOm [)cbt, from EXEMPi,iFIED RECORD Cumberland County $ .Int. Costs Entered and Filed 19 Lawrence E. Welker Prothonolar.',. Sally E. Rooney, M.S. Licensed Psychologist 39 GETTYSBURG PIKE MECHANICSBURG, PA 17055 Phone: (717) 432-2714 ?ARENT/CHILD EVALUATION Clients: Edward Stoner - Father. Betty Stoner - Mother~ Stacy Stoner - age'12 Nicole Stoner - age 4 DOB: 6/24/52 DOB: 11/8/56 DOB: 12/29/74 DOB: 6/17/82. Date Evaluation Completed: February 28, 1987 Identifying Information Mr. Edward Stoner is the father of twelve year old Stacy and four year old Nicole Stoner. Mr. Stoner and the girls currently live at R. D. 2, Box 89, Carlisle, PA. Mrs. Stoner is Stacy and Nicole's mother, and currently lives at 31 Cornman Rd., Carlisle, PA. Mr. and Mrs. Stoner separated in January of 1987. Referral Mr. Edward Stoner was referred to the undersigned on January_21, 1987 by his attorney, Bradley Griffie, 200 N. Hanover Street, Carlisle, PA. Mr. Stoner contacted the undersigned stating that a custody hearing had been set for March 2, 1987 concerning his two daughters, ages twelve and four. The undersigned inquired as to whether Mrs. Stoner would be willing to be involved in the evaluation and he replied affirmatively. An initial appointment was set for that evening, January 21, 1987. Both parties agree to pay for their part of the evaluation and Mrs. Stoner's attorney, Mr. Robert 0'Brian, agreed for her to participate. Format of Evaluation The evaluation was conducted over a number of sessions from Sanuary 21 to February 27, 1987. Mr. Stoner was seen individually on January 21, followed by the girls together. Mrs. Stoner was seen on January 28 for an individual session followed by the girls, -each separately. Mrs. Stoner was then seen with the girls jointly ~on February 25, followed by Nicole seen alone. Mr. Stoner was seen ~jointly with the girls on February 27, followed by Stacy seen alone. The purpose of the multiple interviews was to assess the char- acter and personalities of the respective parents, in conjunction - 2 - with each of their parenting skills. The girls were seen with each of their parents separately to assess interaction Mualities. The girls were each seen alone to gain more insight into their individual needs and desires. Relevant Ps¥chosocial History Betty and Ed Stoner have been married for thirteen years, having married when Betty was in high school. Ed graduated from high school in 1971, Betty in 1974. The marriage has been a stormy one for numerous years. Mr. Stoner worked for Carolina Freight involv- ing trips away from home overnight. He admitted to becoming depressed, starting to drink, and having an affair several years ago. Although he denied becoming violent when he was drunk, Mrs. Stoner recalls being manhandled and forced to do things against her will. Both parties attested separately in their individual sessions to poor communication and many fights during this time period. More recently, Mrs. Stoner took the children and moved out of the house on April 9, 1986. She moved in with her sister, where she is currently residing. She did, however, move back with Mr. Stoner in June, 1986 and remained with him until January 7, 1987 whereupon she took the girls and moved back to her sisters' house once again. During those months she did admit to a girlfriend, Debra Bricker as well as her Pastor, Pastor Barrick of Great Hope Baptist Church, that she was in love and had had an affair with Mr. Lee Layman. Mr. Layman was presently finishing up a prison sentence for indecent assault, i.e., having sex with his adolescent stepdaughter and getting her pregnant. According to Debra Bricker, with whom the undersigned talked with on the phone, Betty felt the charge had been innappropriate, a "set-up by the stepdaughter and ex-wife." Mrs. Stoner would not admit or verify to me in her sessions any relationship beyond a "friendship" one with Mr. Layman. I tried several different times to allow her to share this with me in a nonaccusatory environment, but she would not change her position. Following Mrs. Stoner taking the children for the second time to her sister's, Mr. Stoner filed a temporary custody suit and the girls moved back with him on January 16, where they have been ever since. The undersigned worked with Mr. Stoner, encouraging him to establish regular visitation with their mother throughout the last several weeks because the girls were not seeing her consistently until February. Currently they and seeing her every other weekend and Wednesday evenings. Interviews with Mr. Stoner Mr. Stoner presented as a concerned parent, overwrought initially - 3- with grief and emotion concerning his wife's departure when he first came to see me. He was initially interested in whether I could be helpful in possibly facilitating Mrs. Stoner's return. As time progressed he was slowly able to start to realize she was not in- terested in returning, although he has not yet totally given up hope that she might not ever change her mind. Mr. Stoner was genuinely concerned about his children possibly being exposed to Mr. Layman through his wife's relationship with him. I worked with him on inappropriately involving the children in conversations relating to Mr. Layman, putting down their mother in anger to theN, or in any way involving them in the adult arguments in this case, particularly ~icole at age four. He did listen to my suggestions and improved in how he dealt with the issue of Mr. Layman, keeping it more away from them. He also instituted~the visitation as alluded to above. I also made suggestions concerning a structured bedtime and other parenting techniques which he attempted to follow. In reference to parenting skills the undersigned used scales from Richard Gardner's (M.D.) Family Evaluation in Child Custody Litigation. We discussed areas of discipline, responsibility, school and such hypothetical situations as stealing, depression, and poor grades. Mr. Stoner reported using such appropriate dis- cipline techniques as giving warnings, sitting the kids in chairs, using spanking only when absolutely necessary. We discussed appropriate responsibilities for both girls. In reference to school, Mr. Stoner responded appropriately to hypothetical questions con- cerning dropping grades by saying he would work with his eldest daughter after school and during evenings on more concentrated attention on her studies as well as working with teachers. He reported he would seek help either through counseling or a close person if either of the children had difficulty with depression or showed severe signs of emotional upset. Other hypothetical areas o~ child management were covered with acceptable techniques suggested by Mr. Stoner indicating adequate parenting knowledge. Interviews with Mrs. Stoner Mrs. Stoner also presented as a concerned parent, very definite in her belief that the marriage is over and she will never go back. She recounted many painful and negative interactions which took place throughout the course of the marriage, leading her to the conclusion that she must leave. As noted previously, she would not admit to her relationship with Mr. Layman as being anything more than "friendship", and denied that he was causatory in the breakup of the marriage. She admitted that she never dreamed the girls would be taken back by Mr. Stoner through temporary custody in January 1987 and had she known she would have never seen Mr. Layman as a "friend". -4- In my opinion she never even thought about the possibility of losing the children by her association with Mr. Layman. In reference to parenting, the same questioning and scales were used with Mrs. Stoner. Regarding areas of discipline, she discussed using such techniques as sitting Nicole on a chair, sending her to her room, swatting her butt, and talking with Stacy. In reference to dropping grades and school she indicated she would work more closely with her, particularly overseeing her homework, and work with the teachers. She indicated she would take the kids for counseling if they became depressed and she could not talk to them about it. Other similar areas of parenting and problem-solving were discussed with Mrs. Stoner. It was clear from discussing actual techniques that there is nothing to indicate Mrs. Stoner is neglectful or incompetent in her parenting skills. The undersigned is concerned that she showed poor judgement in moving the children back and forth, in and out of their house over the last six months. Such action does not indicate a primary concern for stability of the children in one environment over a short period of time. Concern also arises at Mrs. Stoner's apparent inability to be more honest with the undersigned concerning her relationship with Mr. Layman. That brings issues of trustworth- iness and dependability into question. Also~ her apparent inability to see the ramifications of any kind of relationship with Mr. Layman in terms of her childrens' well-being is disconcerting. Individual Sessions with the Children Stacy Stoner presented as a quiet twelve year old seventh grader who is internalizing her grief and anger concerning the con- fused and arguementative relationship between her parents. She reported one of her grades on her last report card had dropped and undoubtedly she is hurt by the disparities between her parents. When I first saw Stacy she verbalized much anger and disgust towards her mother for her involvement with her "boyfriend". Much of her information she had gotton from her Dad and overhearing con- versations on the telephone. As mentioned previously, I later encouraged Mr. Stoner to keep the children out of these conversations as much as possible. She was able to verbalize that she wanted to stay at home, where her room and belongings are, her own house. She was angry at her Mom and said she wanted to stay with her father. Of major concern to her was having things stay the same - not moving out and if that meant living with her father because he was in the house, that was fine with her. She was also very concerned about not being separated from Nicole. Nicole presented as a more outspoken energetic four year old, somewhat impulsive and aggressive. Nicole was able to say un- equivocally that "I want them together" when we talked about her parents. She also parroted that Mom's boyfriend was "in jail for peeking up little girls' skirts". I later dealt with Mr. Stoner on again keeping these allegations away from Nicole. - 5- In Nicole's picture of her family, she drew her mother and father as two huge figures, both with arms, legs, hair eyes and mouths. Her father's mouth was smiling, her mother's was not. She then drew Stacy, but not herself. When asked where she was she said she ran out of room on the paper and then drew a very small figure of herself. She was very clear in saying "I want to stay with Stacy" no matter where she lived and that she misses her Mom. It is clear that Nicole is bonded to both her mother and father and being at her developmental age needs both of them. Her relationship within the past two months has necessarily grown with her father as he has become the primary caretaker. Interaction Interviews The joint interview between Mrs. Stoner and the girls indicated no inappropriate or negative actions. The three of them were asked to construct something that represented their family with such materials as construction paper, markers, paste, yarn, cloth, scissors, and crayons. They chose to make a scene of the family waterskiing with Mom, Dad, and Nicole in the boat and Stacy waterskiing. Stacy sat beside her Mom, touched her often, leaning on her knee to get the scissors and other materials. Mrs. Stoner helped Nicole include her construction paper "shark" in the water but accepted her age appropriate playing with other materials such as a puppet by saying "That's fun isn't it?" There were not any neg- ative put-downs during the interview. The joint interview betweenMr.~Ston~r ~nd~hegirls also indicated no inappropriate or negative actions. They were asked to also make something representing the family and again made a scene at the shore with construction paper and paste. Nicole made her father a heart with a pipecleaner and he included it in the picture. Nicole wanted her father to help her with a house she was making and tried to participate more fully with the activity than with her Mom. There was more talking, laughing, "chatting" and general positive interaction in the group session with Mr. Stoner and in general the affect was more jovial and lighter than the session between the children and Mrs. Stoner. Conclusions and Recommendations It is clear from these interviews that Mr. and Mrs. Stoner have much anger and bitterness to be resolved between the two of them and that the children will find it very difficult not to be in the middle of their fights. It is therefore recommended that wherever the girls end up living that they continue in therapy. - 6- Stacy particularly needs to learn to express her disappointments and anger verbally and N±cole could use continued play therapy to sort out her feelings. Mr. Stoner needs to work through his anger and disappointment at losing his wife. Mrs. Stoner needs to sort out her priorities of what she wants to do with her life, including how she reconciles her feelings for a man who has had a prison record involving molesting a minor. Neither Mr. nor Mrs. Stoner exhibit any gross neglectful parent- ing techniques indicating they are incapable of raising their children. Each need work on certain areas: Mr. Stoner needs con- tinued work on keeping his anger and bitterness away from his kids which he has shown improvement in through taking the undersigned's suggestions. In addition if he had custody of the children he would need to continue to be actively involved with Stacy, her school work and assist her to pull her grades up. Nicole continues to need a firm structured environment in which expectations and limits are clear or she will most probably have difficulty in school next year. Mrs. Stoner needs to evaluate her priorities in terms of her own life versus her children - her actions have appeared to indicate either poor judgement and/or improper concern for her own needs and desires as opposed to her childrens. Based on the above combined interviews, it is my clinical opinion that Stacy and Nicole would suffer the least emotional damage by staying with their father, in their own house for reasons of stability, mutual support, and the least disruption to their lives. Mr. Stoner demonstrates adequate parenting skills to deal with the children and hopefully he would continue with them in therapy. Their interaction is both positive and healthy. It is also recommended that a consistent and frequent visitation schedule be established through the courts enabling the children to see their mother on an ongoing basis. It is further recommended that whenever the girls are with their mother that Mr. Layman be court ordered not to be present. There is much bitter feeling, particularly by Stacy which would only be exaeerbated with his presence anywhere near her. Hopefully, Mrs. Stoner will continue in therapy to get some healthy direction for herself. Eventually, if and when she becomes established in a homestead of her own, joint custody might be considered if she and Mr. Stoner have been able to work through their anger and the children are not in danger of any further triangulation. Sally Rooney, MS Clinical Psychologist EXPLANATION OF MARKS G - Good S .- SatisfacEory N - Needs improvement IOO E. Pomfret St., Carlisle, PA ]70]3 KINDERGARTEN PROGRESS REPORT School Year' 19~7 19 S~ 2 3 4 LANGUAGE DEVELOPMENT Can name and identify colors Sees likenesses and differences Prints first name Recognizes letters Interprets pictures Can do sequencing Identifies rhyming words S Prints last name Identifies beginning consonant sounds /~/ Reads high frequency words Demons[rates growth ~n ---[-~ i 't- ................................... : .......... . ......... :...,2 ......] ..... COMNENTS SOCIAL & ABD WORK HABITS Listens attentively 6T Follows direc[ions MATH SKILLS R~cognizes basic shapes Able to count by rote to 1OO Recognizes number symbols/sets 0-30 Writes numbers O 30 Has ability to classify Understands simple concepts of: addition and subtraction Is familiar with basic time concepts Understands money concepts S COMMENTS PHYSICAL DEVELOPMENT Demonstrates large muscle control - running, skipping, etc. C~' Demonstrates small muscle control pencils, scissors, crayons, etc. Cz I Comments (lst Period) Works well independently __~_ 6.t._ _s_r. L&'i COMMENTS Is responsible/organized ___.~_ Gj ~L_c}-. Ii I. Uses time to 9ood advantage. 6. ....................................... ~ ........... 2. Wastes time. 7. Shows respect/good nlanne~-sl ~.~____~ ~&C~ i[ 3. Relies on others too much. a. Obeys schgo,/class rules ~ ~_ _S__._j_~___.I~i/"- Distracts others. les to do best , ] ~ ~ work neatl~ ~ ! ~ ~ , " Comments (2nd Period) Comments (3rd Period) C-t;- j Comments (4th Period) Appl ies neatness in daily work. Shows growth in self-control. Does not apply neatness in daily work. Shows improvement. Tries before asking. ~ HONa CONk'ERSAT!ON FOLL, O:,q=UP Vf$I~T OR D!',q(]{SSS!O~.tt ......... RE',~tLf~:'.R V~SiT Ol:t DJ'gCO,qSiOi'! VITA PERSONAL Name: Sally Elizabeth Rooney Date of Birth: 09-29-49 Marital Status: Married Address: 450 Ridge Road Dillsburg, PA Phone: 432-2714 17019 EDUCATION 1973-1974 1971-1972 1967-1971 1973-1975 LICENSURE 12-01-77 Master of Science, Psychology (Clinical), Pennsylvania State University, University Park, Pennsylvania Twenty-four credits graduate work, University of Nebraska, Lincoln, Nebraska B.A., Psychology, Marietta College, Marietta, Ohio Family Therapy Trainer, Philadelphia Children Guidance Clinic, Philadelphia, Pennsylvania Psychologist, State of Pennsylvania, No. PS002571-L WORK EXPERIENCE 09-87 to Present 09-85 to Present 09-84 to Present 09-75 to Present 05-73 to 09-75 Psychologist, Counseling Center, Dickinson College, Carlisle, PA 17013; Specialty Eating Disorders Psychologist, Private Practice, 39 Gettysburg Pike, Mechanisburg, PA 17055; Telephone: (717) 432-2714 Consulting Psychologist, Central Pennsylvania Adoption Group Psychologist, Stevens Psychological Associates, 801 Belvedere Street, Carlisle, PA 17013; Direct clinical service to children, adolescents, families, couples Mental Health Worker II, Holy Spirit Hospital Community Mental Health Center, Camp Hill, PA 17011 PROFESSIONAL MEMBERSHIPS American Psychological Association Mental Health Association RESEARCH 1975, Publication: "Modification of Aggression through Modeling: An Experimental Probe," Sally E. Goodwin and Michael J. Mahoney, Journal of Behavioral Therapy and Experimental Psychiatry, Vol. 6, pp. 200-202. _ 01' Edward L. Stoner,Appellant B~tty J. Stoner No. 658 Harrisburg, 1988 (Cumberland Co. No. 92 Civil 1987) ~a coil)IL·ace vtch penmsyLvam~a ~Le of A~eLlice ~r:ced~re Z$7T. · The dace o~ v~ch c~e record hal bee~ calAn:ed ~l 6-28-89 An additional copy :~ :~ls :er:i!Ic~ce Ls e~:Losed ~ch ch· cece~p~ o~ chi =~nde~ cecoc~ ~y executOrS s~c~ ::gY Ac :~e place am~ by ~occhv~ch =icon,tiS c~e :e;,-:v J. 34011/89 EDWARD L. STONER, Appellant v. BETTY J. STONER IN THE SUPERIOR COURT OF PENNSYLVANIA No. 658 Harrisburg, 1988 Appeal of the Order entered August 22, 1988, Court of Common Pleas, Cumberland County, Civil Division at No. 92 Civil 1987. BEFORE: ROWLEY, POPOVICH and JOHNSON, JJ. MEMORANDUM: FILED: MAY 18, 1989 Edward Stoner appeals from the denial of his Petition for Modification of Custody. We affirm. Edward and Betty Stoner are the parents of two minor children, Stacy, born December 29, 1974 and Nicole, born June 21, 1982. Although still married, the parties no longer live together and each is involved in an extra-marital relationship. After the parties' separation, Father sued for custody of the two children. On March 13, 1987, the Honorable Harold E. Sheely ordered that custody of Stacy be awarded to Father and custody of Nicole be awarded to Mother. Suitable partial custody arrangements were left for the parents to determine between themselves. On July 20, 1987, the trial court modified its initial order by directing that Mother not permit her companion to be present when her daughter Stacy is visiting. On July 13, 1988, Father sued for modification of the prior order, again J. 34011/89 requesting that he be given custody of his daughter Nicole. Father's petition was denied on August 22, 1988. The order of the trial court was filed on September 23, 1988. This appeal follows. On appeal, Edward Stoner raises the following questions for our consideration: (1) ARE THE TRIAL COURT'S CONCLUSIONS UNREASONABLE IN LIGHT OF THE TRIAL COURT'S FINDINGS OF FACT AND, THUS, A GROSS ABUSE OF DISCRETION? (2) DID THE TRIAL COURT PROPERLY CONSIDER THE BEST INTEREST OF THE CHILDREN AND PROVIDE A THOROUGH ANALYSIS OF THIS ISSUE IN REACHING ITS CONCLUSION AND OPINION? (3) DID THE TRIAL COURT FAIRLY AND EQUALLY CONSIDER THE EVIDENCE PRESENTED BY THE PARTIES? (4) DID THE TRIAL COURT GIVE APPROPRIATE WEIGHT AND RELIANCE ON THE EXPERT TESTIMONY OR EXPLAIN ITS REASONS FOR NOT DOING SO? (5) DID THE TRIAL COURT GIVE REQUIRED CONSIDERATION TO THE SETTLED LAW THAT, ABSENT COMPELLING REASONS TO THE CONTRARY, SIBLINGS SHOULD BE RAISED TOGETHER? (6) DID THE TRIAL COURT PROPERLY INVESTIGATE, CONSIDER AND GIVE WEIGHT TO THE AFFECT OF MOTHER'S NON-MARITAL RELATIONSHIP? Initially, we point out that Father discusses in the argument section of his brief the applicability of the Pennsylvania Supreme Court's decision in Karis v. Karis, 518 Pa. 601, 544 A.2d 1328 (1988) to the case at bar. In that case, our supreme court held that the trial court must inquire into the best interests of the child when a parent seeks to modify a J. 34011/89 partial custody order to an award of shared custody, regardless of whether a substantial change in circumstances has been shown. Our review of the record indicates that the trial court in the case before us did not require Father to demonstrate a substantial change in circumstances. The trial court properly based its decision, after thorough discussion, on the best interests of the child. At issues one through four and issue six, Father essentially argues that the trial court failed to give due consideration to the evidence before it. The standard of review to be followed in custody matters is set forth in the Pennsylvania Supreme Court decision in Commonwealth v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984). "'[T]he scope of review of an appellate court reviewing a custody matter is of the broadest type... Thus, an appellate court is not bound by deductions or inferences made by a trial court from the facts found; ...nor must a reviewing court accept a finding which has no competent evidence to support it... However, we have also taken great care to stress: "... (T)his broader power of review was never intended to mean that an appellate court is free to nullify the factfinding function of the hearing judge..." (but, instead, is to remain) within the proper bounds of its review and (base a decision) upon its own independent deductions and inferences from the facts as found by the hearing judge. (Citations omitted; emphasis added.)'" Commonwealth v. Robinson, 505 Pa. 226, 236-237, 478 A.2d 800, 806 (1984). Accordingly, we may only disturb the decision of 3 J. 34011/89 the trial court when its conclusions are unreasonable in light of its factual findings. Id. We have reviewed the record and find that the inferences and deductions made by the trial court are amply supported by the facts. The trial court has accorded proper weight to the credibility of the witnesses and has fairly considered the evidence presented by both parties including evidence regarding their respective living situations. An analysis of what is in Nicole and Stacy's best interests and a discussion of the evidence are included in the capable opinion of the Honorable Harold E. Sheely. Accordingly, we adopt the opinion of Judge Sheely as it bears upon these issues. Opinion 12/21/88 at 4-9. At issue five, Father contends that the trial court neglected to give due consideration to the principle that siblings should be raised together absent compelling reasons to the contrary. In support of his contention, Father points out that the trial court failed to discuss this issue in its opinion to this court. First, we note that the interest of the children in living together was brought to the court's attention at trial and clearly rejected. Second, the trial court's failure to discuss in its opinion the general objective of our courts to keep siblings together will not, of itself, give rise to reversible error. M.D. v. B.D., 336 Pa. Super. 298, 305, 485 A.2d 813, 817 (1984). The trial court has articulated compelling reasons why Nicole should remain with her mother, most important of which is 4 J. 34011/89 Father's failure to encourage any contact between Mother and Stacy. It is the policy of this Commonwealth to assure continued contact between children and their parents when the parents separate. Karis v. Karis, 518 Pa. at 605, 544 A.2d at 1331. The record is clear that Father's failure to encourage contact between Stacy and her mother has already resulted in the absence of any communication between the two. Mother on the other hand has not hampered the relationship between Nicole, Stacy and Father. Given Father's failure to provide proper guidance to Stacy, it is reasonable to conclude that Father would also fail to encourage Nicole to maintain a relationship .with her mother. Accordingly, we find no error in the trial court's denial of Father's petition. 7o Order affirmed. DATED: MAY 18, 1989 DEPUTY PROTHONOTARY 5 J. 34011/89 EDWARD L. STONER, Plaintiff V BETTY J. STONER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 92 CIVIL 1987 IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 BEFORE SHEELY~ P.J. On August 22, 1988, a hearing was held before this court concerning the plaintiff Edward L. Stoner's petition to modify custody of his daughter, Nicole L. Stoner, born June 17, 1982. The modification would give the plaintiff sole custody of Nicole rather than partial custody. At the conclusion of the hearing, an order of court was handed down in which the petition for modification was refused. Subsequently, plaintiff appealed this order and filed a statement pursuant to Pa. R.A.P. 1925. As such, this court submits this opinion to support its order entered August 22, 1988. The history of this case involves an ongoing custody dispute between the parties concerning their two children, Stacy L. Stoner, born December 29, 1974, and Nicole L. Stoner, born June 21, 1982. Initially, by order of this court dated March 13, 1987, custody of Stacy was awarded to her father, the plaintiff, while custody of Nicole was awarded to her mother, the defendant. In addition, a partial custody arrangement was established for both parents concerning both children. Subsequently, the plaintiff petitioned this court for modification of the custody award concerning Nicole. J. 34011/89 NO. 92 CIVIL 1987 A hearing was held concerning the petition for modification. At that time, we heard the testimony of the parties~ the plaintiff's mother, sister, and girlfriend~ clinical psychologists, Sally Rooney and William Thomas~ Nicole~s Kindergarten teacher, as well as the in camera testimony of both Nicole and Stacy. The legal principles applicable to a custody proceeding between a mother and father are well established. The sole issue involved in a custody decision is the best interest and welfare of the child. Nancy M. v. Kenneth D.M., 316 Pa. Super. 351, 462 A.2d 1386 (1983)~ Beers v. Beers, 342 Pa. Super. 465, 493 A.2d 116 (1985). Thus the court's concern is entirely with a child's physical, intellectual, moral and spiritual we11-be~ng, with the burden of proof shared equally by contesting parents. In Re Custody of Hernandez, 249 Pa. Super. 274 Pa. Super. 274, 376 A.2d 648 (1977)~ Hartman v. Hartman, 328 Pa. Super. 154, 476 A.2d 938 (1984). We also recognize that modification of an existing custody order should not be undertaken lightly, largely due to our ever present concern for preserving stability in the life of the child. Hartma~, Id.~ Snarski v. Snarski, Pa. Super. , 538 A.2d 1348 (1988). However, we are also mindful that stability is not to be preserved when there are other reasons why the environment in which the child is living under the present custody order is no longer the one that will serve the childts overall best interests. Parker v. MacDonald, 344 Pa. Super. 552, 496 A.2d 1244 (1984). -2- 34011/89 NO. 92 CIVIL 1987' Additionally, it is also well established that every parent has the right to develop a good relationship with his or her child, and every child has the right to develop a good relationship with both parents. Pamela J.K.v. Roger D.J., 277 Pa. Super. 579, 419 A.2d 1301 (1980). Therefore 'when parents are separated and custody is placed in one of the parents, there exists a danger that the parent having custody . . . may use his or her advantageous position to alienate the other parent from the affections of the child.' Commonwealth ex re1. Lotz v. Lotz, 188 Pa. Super. 241, 246, 146 A.2d 362, 364 (1958), aff~d, 396 Pa. 287, 152 A.2d 663 (1959). The court must, therefore, guard against this danger as it strives to render a decision which is in the best interests of the child, Sarclay v. Barclay, 367 Pa. Super. 529, 533 A.2d 143 (1987), while at the same time taking into consideration which parent, if given custody, would facilitate and not hinder visits between the child and the non- custodial parent. See Pamela J.K.v. Roger D.J., supra~ 23 Pa. C.S.A. S5303. Thus, we note that the welfare of a child is clearly best served by the maintaining of the parent-child relationship with both of its parents. Karis v. Karis, Pa. ., 544 A.2d 1328 (1988)~ Peterson v. Hayes, 252 Pa. Super. 487, 381 A.2d 1311 (1977). With these legal principles as our foundation, we turn now to the testimony given at the modification hearing. What concerns the court the most in this case is the plaintiff's disregard for the recognized need to establish regular visitation between Stacy and her mother (the non-custodial parent). -3- 34011/89 NO. 92 CIVIL 1987 Although this petition and hearing specifically concerns Nicole, this court is not blind to the pattern established whereby a minor child in the custody of the plaintiff is allowed to refuse visitation with the non-custodial parent. Plaintiff's attitude is one in which he admits that he does not encourage or require visitations of his oldest daughter with her mother if the daughter does not feel so inclined. (N.T. 9-13; 60-62). -Such action on the part of the plaintiff, as the custodial parent, is unacceptable to this court. See 23 Pa. C.S.A. S5303. We are concerned, therefore, that a similar destructive pattern would also develop if the plaintiff was given custody of Nicole. It is conceivable that the plaintiff would also allow Nicole to dictate whether, if at all, she would visit with her motherl Thus, we believe that if Nicole were to reside with the plaintiff, it is foreseeable that in a few weeks or months that she, too, would begin to make excuses not to visit with her mother and that the plaintiff would abide by this decision rather than replace the child's decision with one of a responsible and mature parent who would insist upon such visitation. This court is also concerned with the best interests of Nicole as they relate to her schooling. Specifically, our concern is with the proposed school day routine Nicole would have to undergo if she resides with the plaintiff. Apparently, the responsibility of preparing Nicole for school would go to Sue Naylor, the plaintiff's live-in girlfriend. This routine would involve awakening Nicole between 5:00 a.m. and 5:40 a.m., every school day morning in order to prepare her for school. (N.T. -4- J. 34011/89 NO. 92 CIVIL 1987 122). Then, Nicole would be taken to a neighbor's home where she could rest and have something for breakfast before going to school. We compare that routine with the stable routine Nicole would follow if she remained with her mother. There, Nicole would not need to be awakened at 5:00 a.m. on school mornings because she would ride to school on the school bus the defendant drives and she would return home the same way. (N.T. 150-151). Thus, when comparing these two routines on a day-to-day basis, we must decide which routine would be in Nicole's best interest and at the same time which routine would cause the least stress to a six-year-old child. We think the choice is clearly for the routine which involves the arrangements with the mother. Moving on, we note that the custody court clearly has an obligation to consider all relevant factors that could affect a child's well-being-, since its paramount concern is a child's welfare and best interests. Denillo v. Denillo, Pa. Super. __, 535 A.2d 200 (1987). We note, however, that where there is conflicting testimony in a custody matter, the decision of what testimony to believe must be left to the trial judge who has the opportunity to observe the demeanor of the witnesses and actually hear the testimony. Nancy M. v. Kenneth D.M., supra. In this case, we had the benefit of hearing from Nicole during an in camera examination. During her testimony, we noted that the child gave straightforward and disarming explanations of her interaction with her mother and her mother's boyfriend. Specifically when questioned by the court, Nicole responded as follows: -5- J. 34011/89 NO. 92 CIVIL 1987 ae ae And your mother has a boyfriend and what is his name? Lee. And how does he treat you? Good. Does he ever hurt your or do anything-to hurt you? He just -- I was walking out of his place and he just pulled my hair and that hurt, but he didn't mean to pull my hair hard. He didn't mean to do that, you don't think? A. He didn't mean to. Did Lee ever kick you or anything like that? Did he ever give you a kick to hurt you? ae He kicked me but he didn't make no black and blue marks. Q. How did that happen? ae I was playing with him and he just kicked me. I kicked him and he just kicked me. I kicked him and he kicked me. Oe You say you were playing when this happened? A. Yes. Q. were you playing on the floor? A. I don't remember that. Do you remember cutting your mouth one day at school? Did you cut your mouth at school? A. Yes. Q. How did that happen, do you remember? -6- 3. 34011/89 NO. 92 CIVIL 1987' A. Yes. Q. How did that happen? Tell me how it happened? A. It didn't happen. Mom hit me when I was being bad and it cut my lip because her fingernails are long. (N.T. 184-186). These explanations certainly did not coincide with the proffered testimony of the plaintiff and his "microscopic" inspection of Nicole's body for bruises during her visits with the plaintiff. (~ee N.T. 39-40, But cf. N.T. 184-186). In all, Nicole's explanations of bruises (if any) as being the result of "horseplay" seemed more believable than the plaintiff's portrayal of the causes of the bruises. (N.T. 184-185). This case also involved the testimony of two expert witnesses, Sally Rooney and William Thomas, who are both clinical psychologists. As far as expert witnesses, it is clear that the question of who should have custody of a child is a legal decision for the court alone to make, and not one for a psychiatrist or psychologist to make. Commonwealth ex tel. Grimes v. Yack, 289 Pa. Super. 495, 433 A.2d 1363 (1981). Thus, an expert opinion offered by a psychologist is not binding upon the court. L.D.v.B.D., 291 Pa. Super. 589, 436 A.2d 657 (1981). See also, Straub v. Tyahla, 274 Pa. Super. 411, 418 A.2d 472 (1980). The court will, however, consider expert opinions along with all other evidence. Commonwealth ex rel. Newcomer v. King, 301 Pa. Super. 239, 447 A.2d 630 (1982). In this case, however, we find neither experts' opinion persuasive. The opinion offered by the plaintiff's expert, Sally -7- 3~011/89 NO. 92 CIVIL 1987 Rooney, was, by that expert's own admission, based on non- standard operating procedure. (N.T. 89-91). That is, Sally Rooney's opinion was not based on interviews and observations in which both parents alternated in bringing the child to the meetings with the expert. Rather, it was only the plaintiff who secretly brought Nicole to these sessions so that the expert's observations of parent and child interactions were limited and certainly one-sided. Moreover, there is some question as to that expert's possible bias in that it was revealed that Ms. Rooney knew the defendant had a negative feeling towards her and, more importantly,that the defendant had not paid Ms. Rooney's outstanding bill, whereas the plaintiff had always paid his bill. (N.T. 93-94). The court is also unpersuaded by defendant's expert, William Thomas. Although the expert observed that, 'there was no evidence to indicate from the testing that [Nicole] was under any severe or emotional distress' and that there was 'nothing that would indicate any mistreatment or would indicate any severe difficulties in communication with any member of the family' (N.T. 131-132), we note that Mr. Thomas met with Nicole only once prior to rendering his expert observations. (N.T. 137). However, we do note that Mr. Thomas did not observe any alienation of Nicole towards her mother or father and that Nicole seemed happy and had a typical mother-daughter relationship with the defendant and that the relationship seemed free of any encumbrance. (N.T. 134). Therefore, although we have considered the opinions offered by these two experts, we are not bound by -8- J. 34011/89 -NO. 92 CIVIL 1987' them nor do we find either to be persuasive. Rather, our decision concerning what is in the best interests of Nicole is rendered upon close consideration and weighing of all the testimony given in this regard with the appropriate credibility factor accordingly placed on such testimony· Finally, we note that the Pennsylvania supreme court in its recent decision of Karis v. Karis, Pa. , 544 A.2d 1328 (1988) stated that~ · a petition for modification of a par~ill custody to shared custody order requires the court to inquire into the best interests of the child re~dless of whether a 'substantial' change in circ--~t~c~ h-~ been shown. Id., 544 A.2d at 1332. (Emphasis added). Although this court is uncertain whether Karis applies to the present case where modification is sought in going from partial custody to sole custody, we are nonetheless satisfied that the best interests of Nicole would be for her to remain with her mother. However, if 'substantial change in circumstances' is still the applicable standard for custody modification cases in Pennsylvania, then we also find that plaintiff has failed to show any "substantial' changes in circumstances to warrant the granting of this modification petition. In conclusion, after careful consideration of all the testimony given in this case, we feel at this time that the best interests of Nicole are best served by the denial of the plaintiff's petition to modify custody. Thus, custody of Nicole is to remain with the defendant with the partial custody arrangement entered between the parties concerning Nicole to continue. --9-- J. 34011/~9 '-NO. 92 CIVIL 1987' Bradley L. Griffie, Esquire For the Plaintiff Taylor P. Andrews, Esquire For the Defendant By the Court, a~o~ld E. Sheely, P.J.~ -10- ,~ ~'}~"~ ., CERTIFICATE AND TRANSMITTAL ,OF REC©RD bl~ D !~, R PENNS~.VANIA RL~,E OF APPEL~Aq'E PROCED[U?E lq'~! c' TO ~he Prothonotary of the Appe].lat,~ Couru ~:o w'hJc?~ t}te wit'hin ~%mZ has been appealed: ~' ~:,~DERSIGNED,~ Prothonotary of the Court o~ Co,n,uc, n '~lemm~ ~f ~ C~berland County th~ said court ~ing a ~Ourt of record, do hereby certify that annexed kereto i~'~4~.~ an opinio, of the court as required by [~a. R. A. P. 1925, %he' original papezs and e~hibits, if any on file, the %rmns~rip% of the proceedings, if any, and the docket entries In the roll.lng matter: 92 Civil 1987 and 658 HBG. 1988 · EDWARD L. STO~R vs BETTY J. STO~R ~e d~uments co~aprising the record have been numbered from No. 1 to No. 262 , and attached hereto as Exhibit A is m list of the documents corrospondfngly numbered a~d identi- fied with reasonable definiteness, including with respect to each d~u~nt, the number of page~ comprising the document. ~e date on which th~ record h,as bee~ transmi~-~,ed~ [:o the ap~llate court is December 27, 1988 (Seal of Court) DEC 2 9 1988 Harrisburg 1 - 5 6 - 8 Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county of to No. COPY OF Cumberland 92 Civil 1987 Appearance in the Commonwealth of Pennsylvania & #658 HBG. 1988 Term~ 19 __ is contained the following: DOCKET ENTRY EDWARD L. STONER vs BETTY J. STONER January 14, 1987, Complaint for Custody and Order filed: You, Betty J. Stoner, Defendant, have been sued in Court to obtain custody of the children, Stacy L. Stoner and Nicole L. Stoner. You are ordered to appear in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Cumberland County, Pa. on the 2nd day of March, 1987 at 1:30 p.m. for a hearing. If you fail to appear as provided in this order or to bring the children, an Order for custody, partial custody, or visitation may be entered against you or the Court may issue a warrant for your arrest. By the Court, Harold E. Sheely, P.J. January 21, 1987, Agreement of the Parties and Order of Court filed: AND NOW, this 21st day of January, 1987, by agreement of Edward L. Stoner and Betty J. Stoner, and in accordance with the written agreement attached hereto, it is ordered and directed as follows: 1. Legal & Physical custody of the minor children Stacy L. Stoner, born December 29, 1974 and Nicole L. Stoner, born June 21, 1982 shall be and remain in Edward L. Stoner, the natural father, pending the hearing scheduled in the above- captioned action on Masrch 2, 1987. 2. The mother, Betty J. Stoner, shall have rights of partial custody of the children at such times as the parties mutually agree taking into account the welfare and schedules of the children. Betty J. Stoner shall telephone Edward L. Stoner to make arrangements to see the children before stopping by their residence to pick them up. This court retains jurisdiction in these proceedings. By the Court, Harold L. Sheely, P.J. March 18, 1987, Order of Court filed: AND NOW, March 13, 1987, at 2:55 p.m. after hearing and also after having spoken with Stacey in chambers with counsel present, the court believes that the best of interest of the children would be to award custody as follows: Custody of Stacy Stoner, born December 29, 1974 is awarded to her father, Edward Stoner. Custody of Nicole Stoner, age four, is awarded to her mother Betty Stoner. The court directs that the parties enter into a suitable No. g2 Civi 1 Term 1987 No. #658 HBG. 1 RR. 9VVTerm 19__ Edward L. Stoner Versus B~tty J- Stoner EXEMPIAFIED RECORD From Cumberland County Debt, $ Int. from Costs Entered and Filed 19__ Lawrence E. Welker Prothonotary. No. 92 Ui x,-i 1 Term 1987 #658 HBG. No. ~' """Term 19__ Edward L. Stoner Versus EXEMPI,IFIED RECORD From Cumberland Debt, from County Int. Costs Entered and Filed 19__ Lawrence E. Welker Prothonotary. 1 - 5 6 - 8 9 Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county of to No. COPY OF Cumberland 92 Civil 1987 Appearance in the Commonwealth of Pennsylvania & #658 HBG. 1988 Term, 19 __ is contained the following: DOCKET ENTRY EDWARD L. STONER VS BETTY J. STONER January 14, 1987, Complaint for Custody and Order filed: You, Betty J. Stoner, Defendant, have been sued in Court to obtain custody of the children, Stacy L. Stoner and Nicole L. Stoner. You are ordered to appear in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Cumberland County, Pa. on the 2nd day of March, 1987 at 1:30 p.m. for a hearing. If you fail to appear as provided in this order or to bring the children, an Order for custody, partial custody, or visitation may be entered against you or the Court may issue a warrant for your arrest. By the Court, Harold E. Sheely, P.J. January 21, 1987, Agreement of the Parties and Order of Court filed: AND NOW, this 21st day of January, 1987, by agreement of Edward L. Stoner and Betty J. Stoner, and in accordance with the written agreement attached hereto, it is ordered and directed as follows: 1. Legal & Physical custody of the minor children Stacy L. Stoner, born December 29, 1974 and Nicole L. Stoner, born June 21, 1982 shall be and remain in Edward L. Stoner, the natural father, pending the hearing scheduled in the above- captioned action on Masrch 2, 1987. 2. The mother, Betty J. Stoner, shall have rights of partial custody of the children at such times as the parties mutually agree taking into account the welfare and schedules of the children. Betty J. Stoner shall telephone Edward L. Stoner to make arrangements to see the children before stopping by their residence to pick them up. This court retains jurisdiction in these proceedings. By the Court, Harold L. Sheely, P.J. March 18, 1987, Order of Court filed: AND NOW, March 13, 1987, at 2:55 p.m. after hearing and also after having spoken with Stacey in chambers with counsel present, the court believes that the best of interest of the children would be to award custody as follows: Custody of Stacy Stoner, born December 29, 1974 is awarded to her father, Edward Stoner. Custody of Nicole Stoner, age four, is awarded to her mother Betty Stoner. The court directs that the parties enter into a suitable Page 2 34 - 37 September 21, 1988, Notice of Appeal filed: Notice is hereby given that Edward L. Stoner, Plaintiff above-named, hereby appeals to the Superior Court of Pa. from the Order entered in this matter on the 22nd day of August 1988. This Order has been entered in the docket as evidenced by the attached copy of the docket entry . By Bradley L. Griffie, Esq. Atty. for Plaintiff 38 - 39 September 26, 1988, No. 658 HBG. 1988 assigned by the Superior Court of Pa. 40 September 23, 1988, Order of Court filed: AND Now, September 23, 1988, notice having been received that an appeal has been taken in the above-captioned matter, it is ordered and directed that the appellant forthwith file with the trial judge a concise statement of the matters complained of on the appeal together with reference to any statutory authority or any rule of court. Upon the failure of the appellant to file such reasons within ten (10) days, the court will presume that the appeal has been abandoned. By the Court, Harold B. Sheely, P.J. 41 - 46 Miscellaneous Paper ( Parent/Child Evaluation) 47 - 55 October 3, 1988, Plaintiff's Statement of Matters Complained of Pursuant to Pa. R.A.P. 1925 56 - 252 December 7, 1988, Transcript filed 253 - 262 December 12, 1988, IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 BEFORE SHEELY, P.J. filed IN THE COURT OF COMMON PLEAS OF iUMBERLAND COUN/'Y, PE/~NSYLVANIA iIVIL ACTION - LAW .~O. ~/c~ CIVIL 1987 iUSTODY EDWARD L. STOVER, Plaintiff Ve BETTY J. STOVER, Defendant COMPLAINT FOR CUSTODY GRIFFIE & TURO ATTORN EYS-AT-LAW 200 NORTH HANOVER STREET CARLISLE, PENNSYLVANIA 17013 SUITE ,355 NORTH 2}ST STREET CAMP HILL, PENNSYLVANIA 17011 I EDWARD L. STONER, Plaintiff Ve BETTY J. STONER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. ~ CIVIL 1987 CUSTODY ORDER OF COURT You, Betty J. Stoner, Defendant, have been sued in Court to otbain custody of the children, Stacy L. Stoner and Nicole L. Stoner. You are ordered to appear in Courtroom Number ! , Cumberland County Courthouse, Carlisle, Cumberland County, Pennsylvania on the~/~_~ day of ~c~3X~ , 1987 at /.' ~ o'clock ~ .m. for a hearing. If you fail to appear as provided in this Order or to bring the children, an Order for custody, partial custody, or visitation may be entered against you or the Court may issue a warrant for your arrest. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. BY THE COURT, Court Administrator Third Floor Cumberland County Courthouse Carlisle, Pennsylvania 17013 (717) 249-1133 (717) 697-0371 ~ EDWARD L. STONER, Plaintiff Vo BETTY J. STONER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. CIVIL 1987 CUSTODY COMPLAINT FOR CUSTODY 1. Plaintiff is Edward L. Stoner, adult individual, currently residing at R.D. #2, Box 89, Carlisle, Cumberland County, Pennsylvania. 2. Defendant is Betty j. Stoner, an adult individual, currently residing at c/o D. A. Kuhn, 31 Cornman Road, Carlisle, Cumberland County, Pennsylvania. 3. The parties are the natural parents of Stacy L. Stoner bo December 29, 1974 and Nicole L. Stoner born June 21, 1982. The children were not born out of wedlock. The children are presently in the custody of Edward L. Stoner who resides as aforesaid. During the past five years, or since the children's births, the children have resided with the following persons as the following addresses for the following periods 6f time: Name Edward L. Stoner Betty j. Stoner Deborah A. Kuhn Edward L. Stoner Betty J. Stoner Address R.D. #2, Box 89 Gardners, PA 31 Cornman Road Carlisle, PA R.D. #2, Box 89 Gardners, PA Date January 13, 1987 to present January 7, 1987 January 13, 1987 January 13, 1982 to January 13, 1987 The natural mother of the children is Betty j. Stoner currently residing as aforesaid. She is married. The natural father of the children is Edward L. Stoner currently residing as aforesaid. He is married. 4. The relationship of the Plaintiff to the children is that of natural father. The Plaintiff resides with the following persons: Name Relationship Stacy L. Stoner daughter Nicole L. Stoner daughter 5. The relationship of the Defendant to the children is that of natural mother. The Defendant resides with the following persons: Name Relationship Deborah A. Kuhn None 6. Plaintiff has not participated as a party or witness, or in any other capacity in other litigation, concerning the custody of the children in this or in any other Court. Plaintiff has no information of a custody proceeding concerning the children pending in a Court of this Commonwealth. 7. The best interest and permanent welare of the children will be served by granting the relief requested because: (a) Plaintiff can provide a more stable home for the children; (b) During the life of the children, Plaintiff has provided the primary care, custody and control of the children; (c) During the life of the children, Plaintiff has provided the primary physical, mental, and emotional guidance and the primary physical, mental, and emotional care for the children. 8. Each parent whose parental rights to the children have not been terminated and the person who has physical custody of the children have been named parties to this action. No other persons are known to have or claim to have any right to custody or visitation of the children other than the parties to this action. WHEREFORE, Plaintiff requests your Honorable Court to set a time and place for a hearing at which Plaintiff request the Court to grant him custody of his children, Stacy L. Stoner and Nicole L. Stoner. Respectfully submitted, 200 North Hanover Street Carlisle, Pennsylvania 17013 (717) 243-5551 I VERIFY THAT THE STATEMENTS MADE IN THE FOREGOING COMPLAINT ARE TRUE AND CORRECT. I UNDERSTAND THAT FALSE STATEMENTS HEREIN MADE ARE PA.C.S. §4904 RELATING TO UNSWOR~ SUBJECT TO THE PENALTIES OF FALSIFICATION TO AUTHORITIES. IN THE COURT OF COMMON PLEAS OF ]UMBERLAND COUNTY, P~qNSYLV~qIA ]IVIL ACTION - LAW ~O. 92 CIVIL 1987 ]DWARDL. STONER, Plaintiff Ve BETTY J. STONER, Defendant AGREEMENT AND ORDER OF COURT GRIFFIE &TURO ATTORNEYS-AT-LAW 200 NORTH HANOVER STREET CARLISLE, PENNSYLVANIA 17013 SUITE 102 355 NORTH 21ST STREET CAMP HILL, PENNSYLVANIA 17011 EDWARD L. STONER, Plaintiff !BETTY J. STONER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 92 CIVIL 1987 CUSTODY ~ ORDER OF COURT AND NOW, this ~1 day of January, 1987, by agreement of Edward L. Stoner and Betty J. Stoner, and in accordance with the written Agreement attached hereto, it is ordered and directed as follows: 1. Legal and physical custody of the minor children Stacy L. Stoner, born December 29, 1974 and Nicole L. Stoner, born June 21, 1982, shall be and remain in Edward L. Stoner, the natural father, pending the hearing scheduled in the above-captioned action on March 2, 1987. 2. The mother, Betty J. Stoner, shall have rights of partial custody of the children at such times as the parties mutually agree taking into account the welfare and schedules of the children. Betty J. Stoner shall telephone Edward L. Stoner to make arrangements to see the children before stopping by their place of residence to pick them up. This Court retains jurisdiction in these proceedings. BY THE COURT, EDWARD L. STONER, Plaintiff Ve BETTY J. STONER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 92 CIVIL 1987 CUSTODY AGREEMENT OF THE PARTIES The Plaintiff, Edward L. Stoner, and the Defendant, Betty J. Stoner, hereby agree as follows: 1. Legal and physical custody of the minor children Stacy L. Stoner, born December 29, 1974 and Nicole L. Stoner, born June 21, 1982, shall be and remain in Edward L. Stoner, the natural father, pending the nearing scheduled in the above-captioned action on March 2, 1987. 2. The mother, Betty J. Stoner, shall have rights of partial ustody of the children at such times as the parties mutually agree aking into account the welfare and schedules of the children. Betty J. ~toner shall telephone Edward L. Stoner to make arrangements to see the children before stopping by their place of residence to pick them up. 3. The parties agree that this agreement shall be entered as an Drder of Court and filed to the above number and year. Date Date S~oner IN Th]~ COURT OF CO]vh~ON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTIOL~' - LAW NO. 92 CIVIL 1987 CUSTODY EDWARD L. STONER, Plaintiff BETTY J. STONER, Defendant PETITION FOR INTERIM HEARING GRIFFIE & TURO ATTO R N EYS-AT-/AW 200 NORTH HANOVER STREET CARLISLE, PENNSYLVANIA 17013 SUITE IOE 355 NORTH 2mST STREET CAmP Hill, PENNSYLVANIA ~7OlI EDWARD L. STONER, Plaintiff Ve BETTY J. STONER, De fe ndant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACT ION - LAW NO. 92 CIVIL 1987 IN RE: CUSTODY ORDER OF COURT AND NOW, March 13, 1987, at 2:55 p.m., after hearing and also after having spoken with Stacy in Chambers with counsel present, the court believes that the best interest of the children would be to award custody as follows: Custody of Stacy Stoner, born December 29, 1974, is awarded to her father, Edward Stoner. Custody of Nicole Stoner, age four, is awarded to her mother, Betty Stoner. The court directs that the parties enter into a suitable partial custody arrangement for the children and upon request the court will set an order accordingly. The court requests that either counsel petition the court sometime in early August for an additional hearing on this case and the court will then review the case from today until that time and determine whether or not this order should be changed. By~ ~he Court~, Bradley Griffie, Esquire ~ , ,-"-, ~ For Plaintiff H~old E% Sheely, P.J. Robert O'Brien, Esquire For Defendant :cfd EDWARD L. STONER, Plaintiff Vo BETTY J- STONER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 92 CIVIL 1987 CUSTODY ORDER OF COURT AND NOW, this~/~day of June, 1987, upon presentation and consideration of the within Petition, a hearing is set for-.~~/ ~'~' ~.~.~ . in Courtroom the~-Jday of , 1987 at /.' ~ o'clock / .m lber / of the Cumberland County Courthouse. Je EDWARD L. STONER, Plaintiff Ve BETTY J- STONER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 92 CIVIL 1987 CUSTODY PETITION FOR INTERIM HEARING 1. Your Petitioner is Edward L. Stoner, Plaintiff in the above- captioned action, who is an adult individual currently residing at R.D. ~2, Box 89, Carlisle, Cumberland County, Pennsylvania. 2. Respondent is Betty J. Stoner, Defendant in the above-captioned action, who is currently residing at c/o D. A. Kuhn, 31 Cornman Road, Carlisle, Cumberland County, Pennsylvania 3. The parties are the natural parents of Stacy Stoner born December 29, 1974 and Nicole Stoner born June 21, 1982. 4. The parties are currently under an Order of Court pertaining to the custody of the aforementioned children, a copy of said Order being attached hereto and incorporated herein as Exhibit "A". 5. At the time of the hearing on March 13, 1987 in this custody matter, Respondent indicated to the Court, as did her counsel, Robert L. O'Brien, Esquire, that she had completely terminated her relationship with an individual by the name of Lee Lehman. 6. Evidence produced at trial or through psychological reports and statements of Petitioner and Respondent indicated the undesirabilitY of a relationship between Mrs. Stoner and the aforesaid Lee Lehman. 7. Petitioner has great concern for the safety and welfare of his daughters should they be kept in the company of the aforesaid Lee Lehman. 8. Despite statements made in open court as well as promises Respondent made to Petitioner regarding her continued relationship with // Lee Lehman, she has maintained her relationship with this individual and has repeatedly taken her children around this individual. 9. Petitioner believes that his children are in danger of imminent harm by the aforesaid Lee Lehman. 10. Petitioner believes that his children do not desire to be around the aforesaid Lee Lehman. 11. Despite the requests of the children and Petitioner not to be in the presence of Lee Lehman, Respondent continues to force the children to be in his presence. 12. Petitioner has been advised through counsel that Respondent's former counsel, Robert L. O'Brien, Esquire, is no longer representing Respondent. 13. Petitioner has previously requested action be taken in this regard by correspondence dated May 14, 1987 which is attached hereto and incorporated herein as Exhibit "B" WHEREFORE, Petitioner requests your Honorable Court to schedule a hearing at which time the issue of the presence of Lee Lehman around the parties' children can be reviewed with an appropriate Order of Court being entered in this regard. Respectfully submitted, Bradley L. Griffie, Esquire GRIFFIE, TURO & GRELL 200 North Hanover Street Carlisle, Pennsylvania 17013 (717) 243-5551 I VERIFY THAT THE STATEMENTS MADE IN THE FOREGOING PETITION ARE TRUE AND CORRECT. I UNDERSTAND THAT FALSE STATEMENTS HEREIN MADE ARE SUBJECT TO THE PENALTIES OF PA.C.S. §4904 RELATING TO UNSWORN FALSIFICATION TO AUTHORITIES. DATE: EDWARD L. STONER, Plaintiff Ve BETTY J. sTONER, De fe ndant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 92 CIVIL 1987 IN RE: CUSTODY ORDER OF COURT AND NOW, March 13, 1987, at 2:55 p.m., after hearing and also after having spoken with Stacy in Chambers with counsel ~resent, 'the court believes that the best interest of the children would be to award custody as follows: ~' Custody of Stacy Stoner, born December 29, 1974, is awarded to her father, Edward Stoner. Custody of Nicole Stoner, age four, is awarded to her mother, Betty Stoner. The cOurt directs that the parties enter into a suitable partial custody arrangement for the children and upon request the court will set an order accordingly. The court requests that either counsel petition the court sometime in early August for an additional hearing on this case and the court will then review the case from today until that time and determine whether or not this order should be changed. /~Fr~dley Griffie, Esquire or Plaintiff Robert O'Brien, Esquire For Defendant By the Court, Harold E. Sheely, PoJ. :cfd EXHIBIT "A" BRADLEY L. GRIFFIE RON TURO KEITH A BLANK GLEN R. GRELL FRED H. HAIT JAMES K JONES Griffie, Turo, Blank & Grell ATTORNEYS AND COUNSELLORS AT LAW 200 NORTH HANOVER STREET CARLISLE. PA 17013 ~717~ 2435551 SUITE 102 355 NORTH 21 ST STREET CAMP HILL. PA 17011 ~?17~ '/37-5856 16 NORTh MARKET STREET MEChANiCSBURG. PA 17055 ~717~ 766-1910 REPLY TO May 14, 1987 Carlisle Honorable Harold E. Sheely Judges Chambers Courthouse Carlisle, PA 17013 Re: Stoner v. Stoner No. 92 Civil 1987 Dear Judge Sheely: As you may recall, the above-captioned case was resolved by an Order of Court issued by you on March 31, 1987 following two partial days of hearings regarding custody of two children. The parties' children are Stacy Stoner, born December 29, 1974 and Nicole Stoner, born June 17, 1982. I have enclosed a copy of your Order for your reference in this regard. One major issue, if not the major issue, in this custody hearing was the Defendant Betty J. Stoner's relationship with a Lee Lehman. Mr. Lehman was incarcerated in the Cumberland County Prison for a period of time due to improper sexual contacts with a minor. Mr. Stoner's extreme concern for his children being around such an individual was a primary issue and a main point of testimony in this hearing. As you may also recall, the Defendant, Betty J. Stoner, as well as her counsel, Robert L. O'Brien, assured us as well as the Court that Mrs. Stoner's relationship with Mr. Lehman was over and that there would be no contact with Mr. Lehman and the parties' children. In fact, if my recollection serves me, Mr. O'Brien offered to have placed in the Order of Court a clear statement that Mr. Lehman was not to be around the parties' children. Despite the testimony that was presented, Mrs. Stoner has very frequently taken the children around Mr. Lehman. In fact, Mrs. Stoner's relationship with Mr. Lehman causes the children to be with Mr. Lehman on almost a weekly basis. Particularly due to the stress and concern this causes for Stacy Stoner, I respectfully request that the Court take the opportunity to meet with Mr. O'Brien and myself to B / EXHIBIT " "/~i Honorable Harold E. Sheely Stoner v. Stoner May 14, 1987 Page 2 consider amending the Order of Court that was entered on March 13, 1987. I am asking that the Court consider adding a paragraph to the Order that clearly indicates that the children should not be placed in the presence of Mr. Lehman. If the Court would prefer to have brief testimony regarding Mr. Lehman's character and his past criminal history, then I request that the Court either set a brief hearing accordingly or advise me so I can prepare a brief petition for this purpose. The children and Mr. Stoner have continued in their counseling with psychologist, Sally Rooney, who had advised both parties to continue in counseling. This counseling has apparently reflected a concern with both of the children that they not be around Mr. Lehman not only due to their understanding of his past history but also due to his actions with the children. I am providing Mr. O'Brien, who represented Ms. Stoner at the hearing, with a copy of this letter so that~he can either respond or concur with our request that the Order of Court be amended. If his concurrence on such an amendment is not forthcoming, I again request that the Court either schedule a brief hearing for purposes of this amendment or advise me accordingly so that I can prepare a brief petition in this regard. Sincerely yours, GRIFFIE, TURO, BLANK & GRELL Bradley L. Griffie BLG/lar cc: Robert L. O'Brien, Esquire Edward L. Stoner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 92 CIVIL 1987 CUSTODY EDWARD L. STONER, Plaintiff BETTY J. STONER, Defendant AFFIDAVIT OF SERVICE GRIFFIE: & TURO ATTORNEYS-AT-LAW 200 NORTH HANOVER STREET CARLI,~,LE, PENNSYLVANIA 17013 SUITE IO2 355 NORTH 21ST STREET CAMP HILL, PENNSYLVANIA 17OII EDWARD L. STONER, Plaintiff Ve BETTY J. STONER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 92 CIVIL 1987 CUSTODY AFFIDAVIT OF SERVICE AND NOW, this 15th day of May, 1987, comes Bradley L. Griffie, Esquire, Attorney for Plaintiff in the above-captioned action, and states that he mailed and true and correct copy of a Petition for Interim Hearing filed in the above-captioned action to Defendant, Betty J. Stoner, c/o D. A. Kuhn, 31 Cornman Road, Carlisle, Pennsylvania 17013 by certified mail, restricted delivery, return receipt requested. A copy of said receipt is attached hereto indicating service was made on June 10, 1987. ~ra~ley~LL ~riff~, Esquire GRIFFIE, TURO & GRELL 200 North Hanover Street Carlisle, Pennsylvania 17013 (717) 243-5551 Sworn and subscribed to before me this / 3 l ©0 EDWARD L. STONER, Plaintiff V. BETTY J. STONER, Defendant IN RE: CUSTODY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 92 CIVIL 1987 CUSTODY ORDER OF COURT AND NOW, July 20, 1987, at 3:45 p.m., after hearing, the prior order of March 13, 1987, is amended to read that at no time shall Betty J. Stoner have Lee Lehman in her presence when Stacy is with her. In all other aspects, the prior order is ratified and confirmed. Ha~51d E. ~heely, P.J. Bradley Griffie, Esquire For Plaintiff Taylor Andrews, Esquire For Defendant :cfd EDWARD L. STONER, Plaintiff Vo BETTY J. STONER, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : : NO. 92 CIVIL 1987 : CUSTODY AFFIDAVIT OF SERVICE AND NOW, this ~/~ day of July 1988, comes Bradley L. Griffie, Esquire, Attorney for Plaintiff in the above-captioned action, and states that he personally mailed a true and correct copy of a Petition for Modification of Custody filed in the above-captioned action to the Defendant, Betty J. Stoner, 30lA North Bedford Street, Carlisle, Pennsylvania by certified mail, restricted delivery. A copy of said receipt is attached hereto indicating service was made on July 19, 1988. a~Fi~y L. ~riffie, Esquire GRIFFIE, TURO & GRELL 200 North Hanover Street Carlisle, Pennsylvania 17013 (717) 243-5551 Sworn and subscribed to before me this~,~ day of July !938. LE!G[~ANI,I ~L~;'P, Notary Public C~rli:le, CL!~:'.z~rJ~d Co., Pa. My Commi~.:]~n £;;pirc~ August 29, ;988 Betty J. Stoner 30lA North Bedford Street Carlisle, PA 17013 Im~ Form 3Sil, 4. Article Number . 718 336 657 ~Tylme of ~mlrvt~: ~ _~ Rl~iltlrld LJ Inlurld R _Certified [] COD ~.J cxprl# Mill· i DOMESTIC RETi~R# RECEIPT P 718 336 657 RECEIPT FOR CERTIFIED MAIL NO INSURANCE COVERAGE PROVIDED NOT FOR INTERNATIONAL MAIL (See Reverse) Sent to Betty J. Stoner Street and No. 30lA N. Bedford St. P.~O., S~t~ aqd Zl~)~ode uari zsie, ~ 17013 Postage Certified Fee Special Delivery Fee Restricted Delivery Fee Return Receipt showing to whom and Date Delivered Return Receipt showin'~m~whom, Date, and Address of Delivery TOTAL Postage and Fees Postmark or Date July 15, 1988 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. CIVIL ACTION - LAW NO 92 CIVIL 1987 CUSTODY EDWARD L. STONER, Plaintiff Ve BETTY J. STONER, Defendant DEFENDANT'S ANSWER TO PETITION FOR MODIFICATION OF CUSTODY ANDREWS &; JOHNSON ATTORNEYS AT IAW lO S. COURTHOUSE Ave. CaRliSle, Pa i7013 (717) 243-0123 JUL Z8 ~ ~.~ PI~ '88 EDWARD L. STONER, Plaintiff V. BETTY J. STONER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 92 CIVIL 1987 CUSTODY DEFENDANT'S ANSWER TO PETITION FOR MODIFICATION OF CUSTODY 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. It is denied that there has been a substantial change of circumstance since the last Court hearing on July 20, 1987, warranting further litigation. By way of further answer, the Defendant notes that this is the third time that Plaintiff, Edward L. Stoner, has sought Court review of this custody arrangement within the past nineteen (19) months. 7. (a) It is denied that the Defendant's relationship with Stacy L. Stoner has deteriorated due to the Defendant's actions. way of further answer, any deterioration in the relationship has been caused by the Plaintiff's continuing poisoning of the mind of Stacy L. Stoner against the Defendant. (b) Denied. Plaintiff has partial custody of Nicole L. Stoner every other weekend and every other Wednesday evening, so there is regular, on-going contact between the children. (c) Denied. By (d) Denied. These assertions have been previously reviewed and determined by the Court. (e) Proof is demanded. By way of further answer, the child, Nicole L. Stoner, is only six years of age and naturally tells the parents what appears to make them happy. (f) Court. Denied and previously reviewed and determined by the (g) Court. WHEREFORE, Defendant requests your Honorable Court to deny Plaintiff's Petition for Modification of Custody. ANDREWS & J~N Tg~br P. Andrews, Esq. ~to~ney for Defendant 10- S. Courthouse Avenue Carlisle, PA 17013 Phone: (717) 243-0123 Denied and previously reviewed and determined by the COMMONWEALTH OF PENNSYLVANIA) : SS. COUNTY OF CUMBERLAND ) I verify that the statements made in the foregoing Answer to Petition for Modification of Custody 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. DATE: J. Stoner, Defendant EDWARD L. STONER, : Plaintiff : : V. : : BETTY J. STONER, : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 92 CIVIL 1987 CUSTODY PROOF OF SERVICE I hereby certify that on July 28, 1988, I served by regular mail a copy of Defendant's Answer to Petition for Modification of Custody to Bradley L. Griffie, Esq., Attorney for Defendant. ANDREWS Tay~o~ P./Andrews, Esq. &/ IN THE COURT OF COM~DN PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 92 CIVL 1987 CUSTODY EDWARD L. STONER, Plaintiff BETTY J. STONER, Defendant PRAECIPE FOR ENTRY OF ADVERSE JUDGMENT GRIFFIE, TURO & GRELL ATTORNEYS-AT-LAW 200 NORTH HANOVER STREET CARLISLE, PENNSYLVANIA 17013 SUITE I01 3461 MARKET STREET CAMP HILL, PENNSYLVANIA 17011 EDWARD L. STONER, Plaintiff BETTY J. STONER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 92 CIVIL 1987 CUSTODY IN RE: MODIFY CUSTODY ORDER OF COURT AND NOW, August 22, 1988, at 5:30 p.m., after hearing, the petition by Edward L. Stoner, for custody of his daughter, Nicole Stoner, born June 17, 1982, is refused. The court believes at this time considering the circumstances and the feelings between the parents and the fact that Stacy is not compelled to visit with her mother, that if the younger daughter were permitted to return to her father within a short period of time the same thing would happen there and the mother would never have any visitation with either of the daughters, The court at this timedoes not believe that the best interest of Nicole would be for custody to be awarded to her father. The court directs that the partial custody agreement entered into between the parties for both girls be continued. By t~ Cour~.~, ~ fi._/" Bradley Griffie, Esq For Plaintiff . ;" Ha~ E. %heel~, P.J. Taylor P. Andrews, Esq. For Defendant :cfd EDWARD L. STONER, Plaintiff Vo BETTY J. STONER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 92 CIVIL 1987 CUSTODY PRAECIPE FOR ENTRY OF ADVERSE JUDGMENT Please enter judgment for Betty J. Stoner, Defendant, against Edward L. Stoner, Plaintiff, pursuant to the Order of Court by the Honorable Harold E. Sheely, which Order is attached hereto. ~rahley~,L. Griffie, Esquire EDWARD L. STONER, Plaintiff Ve BETTY J. STONER, Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 92 CIVIL 1987 : CUSTODY IN RE: MODIFY CUSTODY ORDER OF COURT AND N~W~ August 22, 1988, at 5:30 p.m., after hearing, the petition by Edward L. Stoner, for custody of his daughter, Nicole Stoner, born June 17, 1982, is refused. The court believes at this time considering the circumstances and the feelings between the parents and the fact that Stacy is not compelled to visit with her mother, that if the younger daughter were permitted to return to her father within a short period of time the same thing would happen there and the mother would never have any visitation with either of the daughters, The court at this timedoes not believe that the best interest of Nicole would be for custody to be awarded to her father. The court directs that the partial custody agreement entered into between the parties for both girls be continued. I ~ra~ley Griffie, Esq. L/For Plaintiff Taylor P. Andrews, Esq. For Defendant By the Court, Harold E. Sheely, PoJ. :cfd IN THE COURT OF COMMON PigAS OF CUMBEPdLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 92 CIVIL 1987 CUSTODY EDWARD L. STONER, Plaintiff BETTY J. STONER, Defendant NOTICE OF APPEAL GRIFFIE, TURO & GRELL ATTO R N EYS-AT- L AW 200 NORTH HANOVER STREET CARLISLE, PeNNSYlVANIA 17013 SUITE IOi 3461 NORTH MARKET STREET CAMP HILL, PENNSYLVANIA 17011 OF Tii! i i::~ )TAP, Y EDWARD L. STONER, Plaintiff Vo BETTY J. STONER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 92 CIVIL 1987 CUSTODY NOTICE OF APPEAL Notice is hereby given that Edward L. Stoner, Plaintiff above- named, hereby appeals to the Superior Court of Pennsylvania from the Order entered in this matter on the 22nd day of August 1988. This Order has been entered in the docket as evidenced by the attached copy of the docket entry. Dated: September ~, 1988 Br'kd~l~y~4~[ driffie, Esquire GRIFFIE, TURO & GRELL Attorneys for Plaintiff 200 North Hanover Street Carlisle, Pennsylvania (717) 243-5551 ID #34349 17013 EDWARD L. STONER, Plaintiff BETTY J. STONER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 92 CIVIL 1987 CUSTODY CERTIFICATE OF SERVICE I hereby certify that I have this ~D day of September, 1988 served the foregoing Notice of Appeal by depositing a copy of same in the United States mail, postage prepaid at Carlisle, Pennsylvania addressed to the following: Taylor P. Andrews, Esquire Ten South Courthouse Avenue Carlisle, PA 17013 and by personally delivery same to: Gary L. Hollinger Fourth Floor Courthouse East Wing Cumberland County Courthouse Carlisle, Pennsylvania 17013 Honorable Harold E. Sheely Fourth Floor Judge's Chambers Cu~iberland County Courthouse Carlisle, Pennsylvania 17013 Esquire Case # -S 92 Date of Entry: January 14 1987 at Appearances: Plaintiff: Edward L. Stoner Defendant: Betty J. Stoner Jan 14, 1987, Complaint for Custody, and Order of Court, filed. You, Betty J. Stoner, Deft., have been sued in Court to obtain custody of the children, Stacy L. Stoner and Nicole L. Stoner. You are ordered to appear in Courtroom No. 1, Cumb. Co. Courthouse, Carlisle, Cumb. Co., PA on the 2nd day of March, 1987 at 1:30 PM for a hearing. If you fail to appear as provided in this Order or to bring the children, an Order for custody, partial custody, or visitation may be entered against you or the Court may issue a warrant for your arrest. By the Court, Harold E. Sheely, P.j. Jan 21, 1987, Agreement of the parties, and Order of Court, fi] AND NOW, this 21st day of January, 1987, by agreement of Edward L. Stoner and Betty J. Stoner, and in accordance with the written Agreement attached hereto, it is ordered and directed as follows: 1. Legal & Physical custody of the minor children Stacy L. Stoner, born Dec 29, 1974 and Nicole L. Stoner, born Jun 21, 1 shall be and remain in EDward L. Stoner, the natural father, pending the hearing scheduled in the above-captioned action on March 2, 1987. 2. The mother, Betty J. Stoner, shall have rights of partia~ custody of the children at such times as the parites mutually agree taking into account the welfare and schedules of the children. Entry by Summons Complaint Petition Appeal Revival Custody__ ) ( x ( ( ( ( x Action in Assumpsit ( ) Trespass ( Habeas Corpus ( Divorce ( Grounds Equity ( Mortgage led. Foreclosure ( Ejectment ( Quiet Title ( Replevin ( ~2,Condemnation ( _ ( Service by SHF: Date of ~ Return: Betty J. Stoner shall telephone Edward L. S¢~n~ ~ m~ ..................... June 16, 1987, Affidavit of ServJ. ce, filed. July 28, 9187, Order of Court, filed. AND NOW, July 20, 1987, at 3:45 PM, after hearing the prior order of March 13, 1987, is amended to read that at no time shall Betty J. Stoner have Lee Lehman in her presence when when Stacy is with her. In all other aspects, the Prior order is ratified and confirmed. By the Court, Harold E. Sheely, P.J. Jul 13, 1988, Petition for modification of custody and order of court, filed. YOU, Betty ~. Stoner have been sued in c~urt to obtain custody of the child, Nicole L. Stoner, born June 21, 1982. You are ordered to appear in courtroom No 1, Cumberland County courthouse Ca?Iisi. e, Cumb. Co. Penna. on Monday the 22nd day of August 1988 at 9:30 a.m. for a he~r ing. ii.-' you fail to appear as provided in this order or to bring the child an order for custody, partial custody, or visitation may be entered against By the court, Harold ,i!~ 21, 1988, A ~ ~ ~.~. Jul 28, 1988, Defendant's answer to peti~io~ for modification of custody, filed. ~=u~lusn 26, 1988, Order of Court filed. ~ND NOW, August 22, 1988, at 5:30 p.m.~ after hearirig, the petition by Edward L. Stoner, for custody of his daughter, Nicole Stoner, born June 17, 1982, is refused. The court believes ar this time considering the circumstances and the feelings between the parents and the fact that Stacy is not compelled to visit with her mother, that if the younger daughter were per- nitted to return to her father within a short period of time the same thing would happen there ~-ad the mother would never have any visitation with either of the daughters. The court at this time does not believe that the best interest of Nico].e would be for custody to be awarded to her father. The court directs that the partial custody agreement entered into between the parties for both girls be continued. By the Court, Harold E. Sheely, P3 Sept 21, 1988, Praeci~ for FJ~t~ of A~erse Jud~ent, filed. Please enter jud~nt for ~tty J. Stoner, ~ft., against ~ard L. Stoner, Pl ff., pursuit to the Order of Co~t by the Honorable H~ld E. Sheely, which Order is attached hereto. By Bradley L. Griffie Atty for Pl. ff ~tice ~iled: Sept~r 21, 1988 Jud~ent: Vol. S, pg-65, Vol. S, pg-65. St'"~RIOR CCURT OF PENNSYLVANI' :FICE OF THE PROTHONOTARY ~OX 624 43~ MAIN CAPITOL ~UILDING MARRISeURG, PENNSYLVAINA 17108 717-787-6t81 SEPTEMOER 23, 1988 NOTICE OF APPEAL DOCKETING SUPERIOR COURT DOCKET NO. ASSIGNED O0~58HBG88 PROTHONOTARY' CUMBERLAND COUNTY CUMaERLAND CTY. COURTHOUSE CARLISLE. PA 17013 RE: STONER, E V. STONER, YOU ARE HEREBY ADVISED THAT THE ATTACHED DOCKET INFORMATION HAS BEEN ENTERED INTO THE SUPERIOR COURT RECORDS IN A CASE IN WHICH YOU APPEAR AS AN OFFICER OF THE COURT. PLEASE REVIEW THIS INFORMATION CAREFULLY AND NOTIFY THIS OFFICE IMMEDIATELY IF YOU ~ELIEVE CORRECTION(S) ARE IN ORDER. MILDRED E. WILLIAMSON DEPUTY PROTHONOTARY ~9/,23188 C?09 SUPF~IOR COURT OF PENNSYLVANIA OFFICIAL DOCKET DOCKET # O0658HBG88 FULL CAPTION O01T EDWARD V O02E BETTY d L STONER STONER COUNSEL 34349 BRADLEY LEROY GRIFFIE 200 NORTH HANOVER ST. CARLISLE. PA 17013 TAYLOR PUTNEY ANDREWS TEN SOUTH COURTHOUSE AVENUE CARLISLE. PA 17013 CONSOLIDATED DOCKET NUMBER BACKGROUND DATA LOWER COURT RECORDS CATEGORY: COURT NAME:. COUNTY: JUDICIAL DISTRICT: CASE TYPE/CHARGE: LOWER COURT CHARGES:; JUDGE(S):- DISPOSITION TYPE: DISPOSITION DATE:' APPEAL FILE DATE: LOWER CRT DOCKET NO.: STATUS INFORMATION I0[06/88 DOCKETING STATEMENT DUE 10/31/88 LOWER COURT RECORD DUE DOCKET ENTRIES 09122188 NOTICE OF APPEAL 09/22188 DOCKETING STATEMENT EXITED TITLE FOR MAIL O01T Y 717-243-5551 PUB. DEF. O02E Y 717-243-0123 CV CIVIL CUMBERLAND O9 CUSTODY/VISITATION SHEELY. H ORDER ENTERED 08122/88 09/21188 92 CIVIL 1987 FOR O01T O01T EDWARD L. STONER, Plaintiff V BETTY J. STONER, Defendant IN RE: Pa. R.A.P. 1925 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 92 CIVIL 1987 ORDER OF COURT AND NOW, September 23, 1988, notice having been received that an appeal has been taken in the above-captioned matter, it is ordered and directed that the appellant forthwith file with the trial judge a concise statement of the matters complained of on the appeal together with reference to any statutory authority or any rule of court. Upon the failure of the appellant to file such reasons within ten (10) days, the court will presume that the appeal has been abandoned. By the Court, · Sheely, Bradley L. Griffie, Esquire For the Plaintiff Taylor p. Andrews, Esquire For the Defendant :pbf iN Tiig COUiiT OF COt~,MON P~AS OF CUi~,'JBEdLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. ~J2 CiViL CUSTODY F~LZ~-OFFtOE OF THEP~O?HONOTARY CUMbERLanD COUNTY PENNSYLVANIA OCT ~ q :~ PM '~ EDWARD L. 8TONER, Plaintiff BETTY J. STONER, Defenuant PLAINTIFF'S STATEMENT OF ~ATTERS C~¥1PLAINED OF PUP~UANT TO PA.R.A.P. 1925 GRIFFIE, TURO & GRELL ATTORNEYS-AT-LAW 200 NORTH HANOVER STREET CARLISLE, PENNSYLVANIA 17013 SUITE I01 3461 MARKET STREET CAMP HILL, PENNSYLVANIA 17011 SalIF E. Roone , M.S. Licensed Psychologist 39 GETTYSBURG PIKE MECHANICSBURG, PA 17055 Phone: (717) 432-2714 rA~E~T/C;nILD EVALUATION Clients: Edward Stoner - Father DOB: 6/24/52 Betty Stoner - [¥,other DOB: il/8/56 Stac.~r Stoner - age 12 DOB: 12/29/74 l'[icole Stoner - age 4 DOB: 6/17/82 Date Evaluation Completed: February 28, 1987 Identifying Information Mr. Edward Stoner is the father of twelve year old Stacy and four year old Nicole Stoner. Mr. Stoner and the girls currently live at R. '~, Box 89 Carlisle PA ~rs. Stoner is Stacy and Nico!e's mother, and currently lives at 51 Cornman Rd., Carlisle, ~',r. and I':~rs. Stoner separated in January of 1987. Referral I'.~r. Edward Stoner was referred to the undersigned on January 21, 1987 by his attorney, Bradley Griffie, 200'~. Hanover Street, Carlisle, PA. Mr. Stoner contacted the undersigned stating that a custody hearing had been set for March 2, 1987 concerning his two daughters, ages twelve and four. The undersigned inquired as to whether Mrs. Stoner would be willing to be involved in'the evaluation and he replied affirmatively. ,An initial appointment was set for that evening, January 21, 1987. Both parties agree to pay for their part of the evaluation and Mrs. Stoner's attorney ~ agreed for her to participate. .~, ~r. Robert O'Brian, Format of Evaluation The evaluation was conducted over a number of sessions from January 21 to February 27, 1987. Mr. Stoner was seen individually on January 21, followed by the girls togetBer, i¥]rs. Stoner was seen on January 28 for an individual session followed by the girls, each separately. ['[rs. Stone~.was then seen with the girls jointly on February 25, followed by ~cole seen alone. Mr. Stoner was seen jointly with the girls on February 27, followed by Stacy seen alone. The purpose of the multiple interviews was to assess the char- acter and personalities of the respective parents, in conjunction - 2 - with each of their parenting skills. The girls were seen with each of their parents separately to assess interaction ~ualities. ~he girls were each seen alone to gain more insight into their individual needs and desires. Relevant Psvchosocial Elstor.z Betty and Ed Stoner have been married for thirteen years, having married when Betty was in high school. Ed graduated from high school in 1971, Betty in 1974. The marriage has been a storms~ one for numerous years, v .. ~ir. Stoner worked for Carolina Freight involv- ing trips away from home overnight. He admitted to becoming depressed, starting to drink, and having an affair several years ago. Although he denied becoming violent when he was drunk, Mrs. Stoner recalls being manhandled and forced to do things against her will. Both parties attested separately in their individual sessions to poor communication and many fights during this time period. More recently, I~rs. Stoner took the children and moved out of the house on April 9, 1986. She moved in with her sister, where she is currently residing. She did, however, move back with Mr. Stoner in June, 1986 and remained with him until January 7, 1987 whereupon she took the girls and moved back to her sisters,~'house once again. - ~uring those months she did admit to a girlfriend, Debra Bricker as well as her Pastor, Pastor Barrick of Great Hope Baptist Church, that she was in love and had had an affair with Mr. Lee Layman. ?.'lt. Layman was presently finishing up a prison sentence for indecent assault, i.e., having sex with bis adolescent stepdaughter and getting her pregnamt. According to Debra Bricker, with whom the undersigned talked with on the phone, Betty felt the charge had been innappropriate, a "set-up by the stepdaughter and ex-wife." I','irs. Stoner would not admit or verify to me in her sessions any relationship beyond a "friendship" one with Mr. Layman. I tried several different times to allow her to share this with me in a nonaccusatory environment, but she would not change her position. Following Mrs. Stoner taking the children for the second time to her sister's, ~';r. Stoner filed a temporary custody? suit and the girls moved back with him on January 16, where they have been ever since. The undersigned worked with Mr. Stoner, encouraging him to establish regular visitation with their mother throughout the last several weeks because the girls were not seeing her consistently until February. Currently they and seeing her every other weekend and ~'~e,dnesday evenings. '~ ~ interviews with Mr. Stoner Mr. Stoner presented as a concerned parent, overwrought initially - 3 - with grief and emotion concerning his wife's departure when he first came to see me. He was initially interested in whether I could be helpful in possibly facilitating Mrs. Stoner's return. As time progressed he was slowly able to start to realize she was not in- terested in returning, although he has not yet totally given up hope that she might not ever change her mind. ~ Mr. Stoner was genuinely concerned about his cbJ!dren possibly being exposed to i,lr. Layman through his wife's relationship with him. ! worked with him on inappropriately involving the children in conversations relating to Mr. Layman, putting down their mother in anger to them, or in any way involving them in the adult arguments in this case, particularly ~iico!e at age four. He d~d listen to my suggestions and improved in how he dealt with the issue of Mr. La)~an, keeping it more away from them. He also instituted the visitation as alluded to above. I also made S_ ~' su~es ~lons concerning a structured bedtime and other parenting technieues which he attempted to follow. ~ In reference to parenting~skills the undersigned used scales from Richard Gardner's (M.~.)~amilv E · ~ ~valuatmon in Child ~ustody Litigation. ~'/e discussed areas of discipline, responsibility, school and.such hypathetical situations as stealing, depression, and poor grades, f,'[r. Stoner reported using such appropriate dis- cipline techniques as giving warnings, sitting the kids in chairs, using spanking only when absolutely necessary- ~e discussed appropriate responsibilities for both girls. In reference to school, Mr. Stoner responded appropriately to h~potnetica! euestions con- cerning dro~ping grades by saying he would work wit~ his eldest daughter after school and during evenings on more concentrated attention on her studies as well as workin~ with t a _ ~ reported he would seek h~ ~+~ ...... o ~? chefs .... e ~~ ~ .,. ~ ~-~ ~-~ ~nrougn counse±~ng or a close the ch~ldre~ had difficulty, with-depression or v~n[[g of emotional upset. 0tber nvpothetica~ areas o~ child management ~ ~ ~e~e covered with acceptable techniques suggested by Mr. Stoner indicating adeeuate parenting knowledge. Interviews with ['.'irs. Stoner Mrs. Stoner also presented, as a concerned parent, very definite in her belief that the marriage is over and she will never" go back. She recounted many painful and negative interactions which took place throughout the course of the marriage, leading her to the conclusion that she must leave. As noted previously, she would not admit to her re!ationshi~ with Mr. Layman as being anything more than "friendship", and denied ~.aat he was causatorv in the ' ~ ~ .~ or~a.,up of the marriage. She admitted that she never dreamed the girls would be taken back by i~lr. Stoner through, temporary custody in January 1987 and had she known she would have never seen i,ir. Layman as a "friend::, - 4 - In my opinion she never even thought about the possibilit)f of losing the children b~¥ her association with Mr. Layman. in reference to parenting, 'the same Ouestioning and scales were used with Mrs. Stoner. Regarding ar~as of discipline, she discussed using such techniques as sitting Nico!e on a chair, sending her to her room, swatting her butt, and talking with Stacy. in reference to '~ · a~opplng grades and school she indicated she would ',~ork more closely with her, ~articularlv overseeing her homework and work with the t~ ' ~ · ~. '~ ~ , ~acners. She znazcated sh= would take the k_~ for counseling if they became depressed and she could not talk to them about it. Other similar areas of parenting and ~roblem-solving were discussed with i~rs. Stoner. It was clear from discussing actual technigues that there is nothing to indicate [~.~rs. Stoner is neglectful or incompetent in her parenting skills. The undersigned is concerned that s~e showed poor judgement in moving the children back and forth, in and out of their house Over the last six months. Such action does n. ot indicate a primary concern for stability of the children in one environment over a short period of time. 0oncern also arises at f",rs. Stoner's apparent inabilit2f to be more Eonest with the undersigned concerning her relationsb, ip with Mr Layman. ~ - · ~ha~ brings issues of trustworth- iness and dependability into euestion. A!so~ her apparent inabi!iti~ to see the 'a ' ' ~ ' ' ~ - ~ mmfmca~ions of any kind of relationship with Mr. La~zman in terms of her nlldrens' wel~-being is disconcertin~ Individual Sessions with the Childre~ Stacy Stoner presented as a quiet twelve year old sevemth grader who is internalizing her grief and anger concerning the con- fused and arguementative relations_.bip betwee~ her parents. She reported one of her grades on her last report card had dropped and undoubtedly she is hurt by the disparities between her parents. ~,~'hen i first saw atacy she verbalized much anger and disgust towards her mother for her involvement with her "boyfriend" Much of her information she had gotton from her Dad ' and overhearing con- versations on the telephone. As mentioned previousl~, i later encouraged Mr. Stoner ~o keep the children out of these c nversa~zons as much as possible. She was able to verbalize that she wanted to stay at home, where her room and belongings are, her own house. She was angry at her Mom and said she wan6ed to stay with her father. Of major concern to her was having things stay the same - not moving out and if that meant living with her father because he was in the house, that was fine with her. ~' about not being separated from Nmcole. ~ne was also very concerned Nicole presented as a more outspoken energetic four year old, somewhat impulsive and aggressive, l:~icole was able to say un- equivocally that '~I want them together" when we talked about her parents. ~he also parroted that ['.'.om's boyfriend was "in jai~ for peeking up little girls' . ' ~ skirts" i later dealt with Mr. S~toner on again keeping these allegatioms away 'from i'[icol'e. - 5 - In ~',iicole's picture of her famil~T, she drew her mother and father as two huge figures, both with arms, legs, hair eyes and mouths. Her father's mouth was smiling, her mother's was not. She then drew Stacy, but not herself. ~hen asked where she was she said she ran out of room on the paper and then drew a ver~ small figure of herself. ~ She was very clear in salting "i want to stay with Stacy" no matter where she lived and that ~he misses her I,'lom. It is clear that iiiicole is bonded to both. her mother and father and being at her developmental age needs both of them. Her relationshi~ within the past two months has necessarily grown with her fal~er as he has become the primary caretaker. Interaction Inter~iews The joint interview between ?~rs. Stoner and the girls indicated no inappropriate or negative actions · ~ne three of them were asked to construct something that represented their family with such materials as construction paper, markers, paste, yarn, cloth, scissors, and crayons. They chose to make a scene of the family waterskiing with Mom, Dad, and l~ico!e in the boat and Stacy waterskiing. Stacy sat beside her ~lom, touched her often leanin~ on her knee to get the scissors and other m ~erzals. [,~irs. Stoner helped Nicote include her construction paper "shark" in the water but accepted her age appropriate playing with other materials such as a puppet by saying "That's fun isn't it?" There were not any neg- ative put-downs during the interview. The joint interview between Mr. ~St'on-er and-.-the g_ir!s also indicated no inappropriate or negative ac~zons. ±he,~ were asked to also make something representing the family and again made a scene at the shore with construction paper and paste· '.~mcole made her father a heart with a pipecteaner and he included it in the picture. l'~icole wanted her father to help her with a house she ;;,as making and tried to participate more fully with the activit:f than with her MOm. There was more talking, laughing, "chatting" and general positive interaction in the group session with Mr. Stoner and in general the affect was more jovial and lighter than the session between the children and Mrs. Stoner. Conclusions and Recommendations It is clear from these interviews that [dr. and Mrs. Stoner have much anger and bitterness to be resolved between the two of them and that the children will find it very difficult not to be in the middle of their fights, it is therefore recommended that wherever the girls end up living that they continue in therapy. - 6 - Stacy particularly needs to learn to express her disappointments and anger verbally and ~icole could use continued pla? therap],~ to sort out her feelings. ~'~ir. Stoner needs to work through his anger and disappointment at losing his wife. iqrs. Stoner needs to sort out her priorities of what she wants to do with her life, including how she reconciles her feel_i~gs~_ for a man who has had a ~rison record involving molesting a minor. i~either [.ir. nor [qrs. Stoner exhibit any gross heglectful parent- ing techniques indicating they are incapable of raising their children. Each need work on certain areas: [~.r. Stoner needs con- tinued work on keeping his anger and bitterness away from his kids which he has shown improvement in through taking the undersigned's suggestions, in addition if he had custody of the children he would need to continue to be actively involved with Stacy, her school work and assist her to pull her grades up. Nicoie continues to need a firm structured environment in which expectations and limits are clear or she will most probably have difficulty in school next year. ['.',rs. Stoner needs to evaluate her priorities in terms of her own life versus her children - her actions have appeared to indicate either poor judgement and/or improper comcern for her own needs and desires as opposed to her childrens. Based on the above combined interviews, it is my clinical opimion that Stacy and Nicole would suffer the least emotional ~ . ~' ~ a -~ in their own house for reasons damage by sta,>mn~ with their f the~, of stability, mutual support, and the least disruption to their lives. Mr. Stoner demonstra-tes adequate parenting skills to deal with the children and hopefully he would continue with them in therapy. Their interaction ~.s both positive and healthy. it is also recommended that a consistent and freguent visitation schedule be established through the courts enabling the childr'en to see their mother on an ongoing basis. It is further recommended that whenever the girls are with their mother that Mr. Layman be court ordered not to be present. There is much bitter feeling, particularly by Stacy which would only be exacerbated with his presence anywhere near her. Hopefully, iCrs. Stoner will continue in therapy to get some healthy direction for herself. Eventually, if and when she becomes established in a homestead of her own, joint custody might be considered if she and i,~r. Stoner have been able 'to work through their .anger and the children are not in danger of any further triangulation. ' T '~'b~ T Sa!l~, ~oone~,. Clinical Psychologist EDWARD L. STONER, Plaintff BETTY J. STONER, Defendant : IN THE ...... ~r. ~uu:,~ OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW : : NO. 92 CIVIL 1987 : CUSTODY PLAINTIFF'S STATEMENT OF MATTERS COMPLAINED OF PURSUANT TO PA.R.A.P. 1925 AND NOW, comes Plaintiff, Edward L. Stoner, by and through his attorneys, Bradley L. Griffie, Esquire, and Griffie, Turo and Grell, and files the following statement of matters complained of pursuant to Pa.R.A.P. 1925 and pursuant to Order of Court dated September 23, 1988, in the above-captioned case: action. Edward L. Stoner is the Plaintiff in the above-captioned 2. The Court has entered four orders in this case which have been attached hereto and incorporated herein by reference as follows: Exhibit "A" - Order dated January 21, 1987 ExhiDit "B" - Order dated March 13, 1987 Exhibit "C" - Order dated July 20, 1987 Exhibit "D" - Order dated August 22, 1988 (Order appealea from) 3. Plaintiff asserts: (A) The evidence adduced by the Court on August 22, 1988 does not support a finding that primary physical custody of the parties' daughter, Nicole Stoner, born June 17, 1982 in the defendant mother is in the best interests of the parties children; (B) The Court erred by failing to place appropriate weight or reliance on the uncontroverted testimony of Plaintiff's expert; (C) The Court errea by failing to place appropriate weight and reliance on the testimony of Defendants' expert, who failed to present any information, test results or testimony to contradict Plaintiff's expert; (D) The Court erred in ignoring the impartial and fair testimony of Plaintiff's expert; (E) The Court erred in ignoring the fact that the mother's testimony, particularly in light of previous testimony in this case, presented serious credibility issues; (F) The Court erred in ignoring the established policy of the Commonwealth concerning separation of siblings; Seiler v. Seiler, 59 Northumb. Leg. J. 73 (1987). (G) The Court erred in ignoring the fair, impartial and uncontroverted testimony of the Plaintiff's expert, Plaintiff, Plaintiff's female companion and the child's sister, Stacy Stoner, concerning the strong bond between the Stoner daughters; Seiler v. Seiler, 5__~9 Northumb. Leg. J. 73 (1987). (H) The Court erred in placing an undue burden upon Plaintiff as the "cause" of the present lack of physical contact between Defendant and the parties' older daughter, Stacy; Sutliff v. Sutliff, (1987). Pa. Super , 522 A.2d 80 (I) The Court erred in failing to consider the stated preference of the children to live together; Seiler v. Seiler, 59 Northumb. Leg. J. 73 (1987) (J) The Court erred in not considering the issues of stability and predictability as important factors in awarding primary custody of Nicole; (K) The Court erred in awarding primary physical custody of Nicole to Defendant, whose male companion has a history of sexual abuse of at least one minor female child, and of whom the parties' daughter Stacy expressed great fear and concern; Commonwealth ex rel Drum v. Dream, 263 Pa. Super 248, 397 A2d 1192 (1979). (L) The Court erred in giving insufficient weight to the testimony and evidence presented by Plaintiff and Plaintiff's witnesses relative to Plaintiff's home environment and the closeness of Plaintiff, Plaintiff's daughter, Stacy, and Plaintiff's female companion to the child, Nicole; Commonwealth ex rel Myers v. Myers, A.2d 587 (1976). 468 Pa. 134, 360 (M) The Court erred in giving no or insufficient weight to the uncontroverted testimony of Plaintiff, Plaintiff's witnesses and the children as to physical and verbal abuse of Nicole by Defendant's male companion; Commonwealth ex rel Myers v. Myers, 468 Pa. 134, 360 A.2d 587 (1976); Commonwealth ex rel Drum v. Drum, 263 Pa. Super 248, 397 A.2d 1192 (1979). (N) The Court's determination that: "The beliefs at this time considering the circumstances and the feelings between the parents and the fact that Stacy is not compelled to visit with her mother, that if the younger daughter were permitted to return to her father within a short period of time that same thing would happen there and the mother [Defendant] would never have any visitation with either of the daughters." is not supported by competent objective evidence in the record, is not a determination based on the best interest of the child and improperly places the court's concern for the Mother's rights over the concern for the best interests of the child; Sutliff v. Sutliff, (1987). Pa. Super. , 522 A.2d 80 (O) The Court misapplied the law of the Commonwealth of Pennsylvania and did not evaluate the factors necessary in awarding primary physical custody of Nicole to Defendant; Jones v. Stone, 343 Pa. Super. 416, 495 A.2d 205 (1985); Commonwealth ex rel Newcomer v. King, 301 Pa. Super. 239, 477 A.2d 630 (1982). (P) The Court erred by failing to consider the best interests of Nicole, and failed to consider the child's ongoing physical, intellectual, emotional and spiritual well-being; Commonwealth ex rel Newcomer v. King, 301 Pa. Super. 239, 477 A.2d 630 (1982); Commonwealth ex rel Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977). (Q) The Court erred in failing to base its Order on objective criteria present in the case or available from prior proceedings; (R) The Court erred in failing to consider or place proper weight upon Plaintiff's and Plaintiff's witnesses uncontroverted testimony concerning Plaintiff's ongoing attempts to secure professional counseling, therapy and assistance for him and the children to deal with the parties' divorce, the children's separation and related matters; (S) The Court erred in failing to consider or place appropriate weight upon Defendant's acknowledged failure to pursue professional assistance, counseling and therapy for her and the children, despite the fact this was strenuously encourage at the first hearing on this custody action in March 1987, by the parties' impartial psychologist; and (T) The Court erred in failing to consider or give proper weight to the Plaintiff's warm, nurturing household, style of handling the children and relationship with the children, as opposed to the lack of attention, lack of quality and quantity time and lack of a nurturing attitude present in Defendant's relationship with the child. 4. Plaintiff, through counsel, asserts the above-claimed errors as his basis for appeal of the Order of Court dated August 22, 1988. Respectfully Submitted, ~i e y-~ ffie, Esquire GRIFFIE, TURO & GRELL 200 North Hanover Street Carlisle, Pennsylvania 17013 (717) 243-5551 EDWARD L. STONER, Plaintiff Ve BETTY J. STONER, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW : : NO. 92 CIVIL 1987 : CUSTODY ORDER OF COURT AND NOW, this~J day of January, 1987, by agreement of Edward L. Stoner and Betty J. Stoner, and in accordance with the written Agreement attached hereto, it is ordered and directed as follows: 1. Legal and physical custody of the minor children Stacy L. Stoner, born December 29, 1974 and Nicole L. Stoner, born June 21, 1982, shall be and remain in Edward L. Stoner, the natural father, pending the hearing scheduled in the above-captioned action on March 2, 1987. 2. The mother, Betty J. Stoner, shall have rights of partial custody of the children at such times as the parties mutually agree taking into account the welfare and schedules of the children. Betty J. Stoner shall telephone Edward L. Stoner to make arrangements to see the children before stopping by their place of residence to pick them up. This Court retains jurisdiction in these proceedings. BY THE COURT, ^ 1RUE COPY .,~ Testimony whe~of, I here unto ~ the seal of saiJ Cou~ rhi,.~.t~..~ay ? ...... -~~: ......... ............. 0~. Pr. otZar' EDWARD L. STONER, Plaintiff Ve BETTY J. sTONER, De fe ndant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL. ACTION - LAW NO. 92 CIVIL'1987 IN RE: CUSTODY ORDER OF COURT AND NOW, March 13, 1987, at 2:55 p.m., after hearing and also after having spoken with Stacy in Chambers with counsel present, 'the court believes that the best interest of the children would be to award custody as follows: · " Custody of Stacy Stoner, born December 29, 1974, is awarded to her father, Edward Stoner. Custody of Nicole Stoner, age four, is awarded to her mother, Betty Stoner. The court directs that the parties enter into a suitable partial custody arrangement for the children and upon request the court will set an order accordingly. The court requests that either counsel petition, the court sometime in early August for an additional hearing on this case and the court will then review the case from today until that time and determine whether or not this order should be changed. /Fo iey Griffie, Esquire Plaintiff Robert O'Brien, Esquire For Defendant By the Court, Harold E. Sheely, PoJ. :cfd EDWARD L. STONER, Plaintiff Ve BETTY J. STONER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 92 CIVIL 1987 CUSTODY IN RE: CUSTODY ORDER OF COURT AND NOW, July 20, 1987, at 3:45 p.m., after hearing, the prior order of March 13, 1987, is amended to read that at no time shall Betty J. Stoner have Lee Lehman in her presence when Stacy is with her. In all other aspects, the prior order is ratified and confirmed. By the.Court, B~ Griffie, Esquire ~..-~or Plaintiff Taylor Andrews, Esquire For Defendant :cfd Harold ~. Sheely, PoSo EDWARD L. STONER, Plaintiff Ve BETTY J. STONER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 92 CIVIL 1987 CUSTODY IN RE: MODIFY CUSTODY ORDER OF COURT AND N~W] August 22, 1988, at 5:30 p.m., after hearing, the petition by Edward L. Stoner, for custody of his daughter, Nicole Stoner, born June 17, 1982, is refused. The court believes at this time considering the circumstances and the feelings between the parents and the fact that Stacy is not compelled to visit with her mother, that if the younger daughter were permitted to return to her father within a short period of time the same thing would happen there and the mother would never have any visitation with either of the daughters, The court at this timedoes not believe that the best interest of Nicole would be for custody to be awarded to her father. The court directs that the partial custody agreement entered into between the parties for both girls be continued. ad/~li' By the Court, I ~.r ey Griffie, Esq. . L/For Plaintiff ' Harold E. Sheely, P.J. Taylor P. Andrews, Esq. -- For Defendant :cfd EDWARD L. STONER, Plaintiff BETTY J. STONER, Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 92 CIVIL 1987 : CUSTODY IN RE: MODIFY CUSTODY Hearing held before the Honorable HAROLD E. SHEELY, President Judge, Cumberland County Court House, Carlisle, Pennsylvania, on Monday,'August 22, 1988, scheduled for 9:30 a.m. in Court Room No. 1 APPEARANCES: BRADLEY GRIFFIE, Esquire For Plaintiff TAYLOR ANDREWS, Esquire For Defendant WITNESSES FOR PLAINTIFF Edward Lee Stoner Trudy Ann Stoner Joanne Stoner Sally Elizabeth Rooney Susan Naylor INDEX DIRECT CROSS REDIRECT RECROSS R~ 3 29 55 57 ~ 63 64 67 70 73 89 104 106 119 122 123 WITNESSES FOR DEFENDANT William Thomas Edward Lee Stoner Betty J. Stoner Lee Middleton FOR PLAINTIFF #1 125 (as on c~138 139 162 EXHIBITS 127 128 134 153 161 MARKED & ADMITTED 74 77 FOR DEFENDANT #1 147 166 -2- (Commenced at 9:34 a.m.) THE COURT: You may proceed. MR. GRIFFIE: Whereupon, Mr. Griffie, I understand why we're here. First witness we'd call is Ed Stoner. EDWARD LEE STONER having been duly sworn, according to law, testified as follows: A. at R.D.1, Box 16 Shermansdale, Pennsylvania. ~ And ~hat's a new address from last year. DIRECT EXAMINATION BY MR. GRIFFIE: Mr. Stoner, please state your name and present address? My name is Edward Lee Stoner and I'm presently residing correct? A. A. A. A. Is that Yes, it is. Approximately when did you move there? In June. Of this year? Yes. Who lives at that residence with you? My daughter Stacy and my girlfriend Susan Na~lor. And do you own that home? Are you renting it or what are those circumstances? No, it's Sue's home. She bought it. -3- And, Mr. Stoner, where are you presently employed? A. I'm employed at Carolina Freight full-time and I started a business in April, consisted of part-time work, construction, back-hoe digging. ~ And that's a business of your own, you're saying? A. Yes. ~ You're not in partnership? ~. No partnership, just my own. ~ Do you plan to maintain that business as a second income or what are your plans in that respect? A. I'd like to build it to where I can go full-time with it and quit the Carolina Freight but until that I've got to work at Carolina. ~ You're not going to quit Carolina until it's a going business, is that what you're saying? A. Until I feel more secure about it. Mr. Stoner, describe the area where you currently live, the neighborhood? A. Well, it's a very good neighborhood, small development up in a wooded area of Perry County. It's just--in general--it's a good area. What type of homes are in the area? A. Well, they're new homes, price range, I guess, in the seventy thousand area. ~ Are they single-family dwellings, all single family? -4- Are there any townhouses? A. No townhouses or anything. dwellings. They're single family Does the development have a name? Forest View. And what school district is that in? That would be in West Perry. And how about elementary schools, do you know what elementary school covers that area? Carrol Elementary. Are you close to the elementary school? Yes, we're within, I'd say, a mile, mile and a half at the very most. ~ Mr. Stoner, since the hearing last spring regarding custody of your children, have you been involved in any, you and your children been involved in any, type of counseling? A. Yes, we have. We've counseled. I'm not exactly sure how many sessions but there has been quite a few sessions with Sally Rooney. still married? A. Yes. And who attended those sessions? Stacy, Nicole and myself. Are you and Mrs. Stoner, you and Betty Stoner, At the present there has not been a divorce yet, -5- which I've been wanting to try to settle things there but that has not been settled yet. ~ So with these counseling sessions, did your wife ever attend counseling sessions since last year? A. No. Has she ever asked you to make the children available for any counseling sessions that she has set up? A. No. She made no attempts to counsel, even for herself. So, as far as you know, she has never had the children to any sort of counseling therapy or anything? A. No. ~ Mr. Stoner, at the time of the last hearing in March of '88, what was the custody situation with respect to the children? Where were they living at that time? MR. ANDREWS: I'm sorry. Was that, as of when, you say? MR. GRIFFIE: March 1987. Excuse me. MR. ANDREWS: I think the last hearing on this matter, your Honor, was in July of '87. MR. GRIFFIE: Your Honor, the only order in July was relative to the paramour, the mother's paramour. MR. ANDREWS: That was after full hearing. We had a full hearing on that. MR. GRIFFIE: We were limited, at that hearing, to strictly dealing with whether Mr. Lehman was in the presence -6- of the children, strictly what the petition was for and what the order dealt with. THE COURT: The March order was the one. You say, what was the custody situation immediarly prior to that hearing? MR. GRIFFIE: Exactly. THE COURT: Go ahead. BY MR. GRIFFIE: ~ Where were the children living immediately prior to the March hearing? A. With me. Now, since that time then have you and your wife been operating under the court order that says Nicole is with your wife and Stacy is with you? A. Yes. At that time we had visitation set-up where one weekend Betty would have both children, the following Wednesday I would get Nicole, my daughter, and then that following weekend I would have both the children for the weekend, and then the following Wednesday it was just reversed where Betty got my daughter Stacy and then the following weekend and so on. That's the way it was operating for sometime. in March? A. That was set-up, you're saying after the last hearing Yes. Now, so every weekend the children were together? -7- A. Yes, it was every week~n~and every Wednesday, a day through the week. I didn't feel it was even enough, at that point. ~ What have the arrangements been over the last six months? A. Well, they were still seeing--in other words, we were alternating the weekends like that and there had been some arrangements between Stacy and her mother. Stacy had come home and was upset and told me she wasn't going in anymore. ~ Can you remember approximately when that was? I don't need an absolute date but even a month. A. This was probably even more than six months, possibly ago. But I talked with Stacy and, you know, Stacy was hurt because she wanted to see her sister. We sit down and we talked and I talked Stacy into starting to go back in. ~ So Stacy-- Make sure I understand what you said. Stacy said she's not going back in to visit Mom anymore? A. Was very upset and angry about it. But you got her going back and visiting again? A. I talked her into going back in. "If it's not to see your Mom," I said, "Go see your sister. Keep that time because you're only young once." So ~tacy started going back in and things seemed to start to smooth out again. And I'm trying to think when it was. It was in February. ~ Of this year of 19887 A. Yes, that Stacy had called me one Sunday afternoon --8-- at 1:30 in the afternoon. And when I answered the phone she was crying and, I mean, totally upset. All she could get out was, "Come get me Daddy." And I heard Betty in the background yelling and mouthing off, that I just didn't hear no more. That's all I needed to hear. I immediately went in and picked Stacy up because I had no idea what was going on. ~ Was Stacy able to explain to you what happened in that incident? MR. ANDREWS: THE COURT: MR. GRIFFIE: THE COURT: Objection. By the way, is Stacy here? She is. I'll permit the question. A. Yes. She told me her mother took her to church, that when she came to pick her up that she was picking on her. And exactly what, I'm not sure, but Stacy is here and she can be asked. One thing that was mentioned was that Betty was humiliated by the people at church and nobody at church ever said one thing to her. BY MR. GRIFFIE: ~ Was this the church she attends or attended? · She went a couple times. ~ This was one that your children apparently went to? A. That we attended. And I don't know, I guess arguments started at that point and they quit. ~ What was Stacy's position about visitation, at that point? -9- THE COURT: Is Stacy in court? MR. GRIFFIE: No, she's sitting out. BY MR. GRIFFIE: ~ What was Stacy's position after that argument when you went in to pick up Stacy? A. When I picked her up and stuff she said, "That's it Dad. I'm not going back there no more." She said, "There's no cause for the arguments and stuff." And she just literally was fed-up. She didn't. That was it. This was February of this year? Yes. Since that time-- I'll ask it this way. Since then until the filing of your petition, had there been any contact between Stacy and her mother that you're aware of? ~ No. At that point there really was not any contact at all. Stacy just avoided in anyway that, but there wasn't even any attempts. ~ Your petition was filed in mid July of this year. You're saying from February until mid July there wasn't any real contact between Stacy and her mother? Right, no. Q. Since the petition wa.s filed, has there been any contact? A. Yes, there was a phone-call where Betty asked Stacy. Q. Without going into detail what those telephone conversations with her mother might have been, has there been contact? -10- A. Yes. Do you know how many contacts? First, have there been any personal contacts with Stacy? A. Personal, as far as Stacy going in there? Yes. A. No. Stacy does not want to. But there was a phone-call or phone-calls? A. Yes, there was phone-calls that where Betty had called and wanted Stacy to go swimming one day. Stacy doesn't like to hurt anybody. She didn't want to answer herMom. She held the phone and asked me. She said, "You tell her no." She said, "You tell her." So I took the phone and I told Betty, I said, "She doesn't want to come over." Betty said, "Well, I tried." But the other time she called was after. This was after the petition. She called and offered Stacy, she said, "If I get rid of Lee, would you come live with me?" Stacy told her, "No." "Well, why?" "Because of the things that have went on." You know, to this day Betty has not called and apologized or tried to make amends with Stacy whatsoever. The first time Stacy stopped going in Stacy was the one. I told her, I said, "Go apologize to your Mom. You take it even though, if you're not--don't feel--you're not at fault. Just do it and try to work it out." And Stacy went to her Mom and she told her that she was sorry. When, I don't know. -11- Q Is it your understanding that the major problem between Stacy and her mother really has anything to do with Lee Lehman? A I think it has quite a bit to do with Lee Lehman. Q Does it go beyond that? A St~cy just wants no parts, you know. Q No parts of? A Of being around Lee Lehman or even hearing anything about Lee Lehman. Their arguments between her and her Mom have caused all this and on top of that Stacy said that, "There's just no, there's no love. Anytime they're in trouble, they're not explained. There's just no understand~ug. In other words, St~cy doesn't have her say. Q So what I think you're saying is it goes beyond Lee Lehman? A Yes, it's in general the whole atmosphere and everything. Whenever the stuff is moving, I didn't go to Stacy and say, "We're moving." I discussed it with her and I said, "How do you feel about it?" And she was excited about moving to get away and she loves it over there, Nicole too. Q Mr. Stoner, then it has been since February since Stacy has been to visit her Mom~ A Yes. Q Since ~ebruary then has the only contact between Stacy and Nicole been when Nichole is with you? A Yes, that has been the entire contact that the two have h~d together. Q And again, that's every other weekend and every other Wednesday evening? -12- A Yes. I asked for more. I asked four, five times. "Seeing how St~cy does not want to come in and visit, can I please have Nicole every Wednesday?,, You know, I'd go pick her up, the whole nine yards, every Wednesday, but it seemed anythiug I wanted it was always no. No, except one occasion she did allow Nicole to come on Wednesday. I was on vacation that week Betty allowed Nicole to come on Wednesday and stay until Sunday. It was Nicole's birthday that weekend. Was that weekend with you, was that a weekend she was to spend Q with you? A Yes, with us. And that was the only time that there was any kind of attempt made to get the kids together a little more. Q Mr. Stoner, have you seen a difference in the relationship between Stacy and Nicole from last year at the other hearing until now? A Nicole wants to do everything like Stacy. She wants to be like Stacy, her big sister. And, it's like Nicole, I don't know. She wants the time. She wants to be there with Stacy very much but there's nothing I can do about it but there has been a considerable change. Q You indicated Nicole wants to be like Stacy? Did you not see that type of relationship back a year and a half ago? A No, not a year and a half ago. She wasn't, I mean, little. I guess she has grown. All little kids want to be grown-up but they do a lot of things together a lot more. Their age difference is considerable but, you know, they're sisters. ~doesn't matter. They both show more ~tention towards each other. Probably Stacy, I guess, is seeing where being apart, that is hurting her. -13- She doesn't like it and I'm sure Nicole doesn't. Q Prior to the last hearing, they had always been together. Is that correct? A Yes. ~ney had always been together all the time and it was just constantly together. Q You didn't have a situation until this order was entered? You didn't have a situation where the children were separated and you'd see what they'd be like? A No. Mr. Stoner, in your petition where you asked the court to change the custody order h~re, besides referring to the breakdown of S~acy's relationship with her Mom and the resulting limited time Stacy and Nicole are together, you indicated there have been some physical confrontations between your youngest daughter Nicole and your wife's paramour. Is that correct? A A Yes. How did that come to your attention? Nicole was very, very talkative, extremely talkative ani when we'd go in and pick her up there's no reason to question Nicole whatsoever. If there is something on Nicole's mind when you're doing *~bings, it doesn't matter what you'~e doing she '11 bring these out just out of the clear blue. She'll mention things. I went in and picked her up one day and on the way home she said, "Lee kicked me." I said, "He kicked you?" And she showed me her leg. Now her leg had black and blue marks on and she pointed the one out. -14- She said, "Right there." She said, "Lee kicked me right there on the lege" I said, "Why did he do that?" She said, "I don't know, I guess I was kicking him." I said, "Well, you shouldn't have kicked him either." ~ut looking at the difference as far as a six year old and an adul$-- MR. ANDREWS: I'll object, your Honor. ~HE COURT: I think maybe it is going a little too far at this point. BY MR. GRI~FIE: Q So did you question her any further on that? A No, I didn't press the issue as far as, you know. I talked to Sally Rooney and I had con+Meted yourself about it and then later there was another m~k where she was complaining about a mark on her butt where Lee kicked her on the butt then. And for what reason that was, I don't know. Q How did that incident come to your attention or how did that bruise come to yomr attention? A Like I say, Nicole just says things. And just out of the clear blue she'll bring it up whether you're coloring, you're playing or even bathing her in the tub, whatever, Nicole will just start to talk. And it's good that she's not afraid because as far as to talk to me she's not afraid to be open with me. But she just all the time is, "Don't tell Mommy I told you thise" And, well, I said, "Don't worry about that,"youknow~ Q Did you ever see any other m~.rks or any other injuries to her? A Yes. She come out this was back-- I've got the dates in here somewhere but she came out one time and her lip was cut inside. And right away in +Jae oar yet she said, "My lip is cut." I said, "Vt is." -15- I said, "What happened there?" S~e said, "Mommy hit me." I said, "What do you mean?" She said, '~ommy hit me with the back of her hand." And I'm sure Nicole, if Nicole was asked about it-- MR. ANDREWS: Object to further-- THE COURT: Sustain ~he objection. He can say what he saw and infer no opinion. BY MR. GRIFFIE: Q Mr. Stoner, when your daughter tells you about any of these bruises or the cut lip, do you dwell on them? Do you continue to question her about what happened? A No. As far as questioning Nicole about it, I don~t. It concerned me very much but I don' t. Nicole is caught in the middle and there's no sense in it. Q Has she told other people in you~ presence that these inju~ies occurred as she described them to you? A Yes, she has. Q Rave you ever found a need to investigate the injuries with any other side agencies? A Yes. I had called the Child Crisis Center and I talked to Mrs. Heighty and I discussed with her and she directed me. It was after the second m~k that I couldn't get in touch with you to find out as far as that goes. I spoke with her and I spoke to Children and Youth Services, a Karen Mor~ison. And I spoke to her about it and what she done was-- MR. ANDREWS: Objection. -16- obviously. A Q THE COURT: I agree we're going to get into a hearsay situation What they were going to do-- THE COURT: Wait. BY MR. GRIF~IE: You contacted them? Yese Did you feel the need, at that point, to pursue the injuries further or investigation of the injuries further th~ou~ those agencies? A I didn't know what to do at that point. I could have. Q But at that point you chose not to pursue it further? A Yes. I called Sally Rooney then as far as-- Was instructed as to what to do if there was anymore. Q In your peti%i~n you also referred to the fact that you~ child Nicole was not getting proper guidance, care, custody, control, that sort of thing. What are some of the problems that you're referri~ to that you have seen over the past year and a half whenever you refer to that? A Nicole told us that when she gets up and grumpy in the mornings her mother couldn't give her breakfast and I couldn't understand this. On a different occasion they come home from a ballgame, one of Lee's ballgames, and Nicole said she was hungry, that her mother made her go to bed and wouldn't give her anything. She come out since the petition. Do you want before or after? Q Preferably before as to wh~t caused you to file the petitiem. -17- Are you aware of whether the children or Nicole, when they're with their mother, attend church? A There was times that-- In other words, one time Stacy wanted to go Betty wouldn't take her. Stacy wanted to call Sue to take her to THE COURT: I thought the question was Nicole. BY MR. GRIFFIE: Q With respect to Nicole, are you aware of whether Betty takes her to church or goes to church or Sunday School with her? A No, I'm not aware if she does. Q Mr. Stoner, I believe, even in the last hearing the issue was raised concerning the child having a bed-wetting problem? A Yes. Q Is that still a problem? A Yes, it Q How is that handled in your house and, if you know, from Nioole or othex~ise how is it handled at Betty's house? A F~om Nicole, she's still wearing a diaper at home and there is a couple times that she said her Mom did get up and take her to the bathroom. But as far as the way we handle it, Sue mainly gets up two or three times a night with Nicole and takes her to the bathroom and Nicole gets up in the morning she's dry. Q A Do you wear a diaper on her when she sleeps at your house? No, we -18- How old is Nicole now? She' s six. Hms she ever expressed concern to you about wearing diapers at her mother' s house? A Yes. She said she's embarrassed and stuff like that, as far as the diaper goes but she doesn't like it. Q Mr. Stoner, has Nicole made statements or comments to you about private information between Betty and Lee that she has heard or seen or been told? A Yes. She said that one time there was a time-- MR. ANDREWS: Your Honor, please. I object to previously, to hearsay from Stacy. I want to m~ke sure I'm on record as to the objection to this as hearsay also. Granted Nicole is here, she's available to the court to t~lk to the cou~t but there's no w~y in which we can monitor the accuracy of these alleged statements from Nicole to her interested father. MR. GRIFFIE: Your Honor, if for no other reason, Mr. Stoner, is trying to set forth why he filed the petition and what the basis for the petition was and the comments and statements from his young d~ughter, particularly in situations where they are off the cuff comments not directed toward a~hing and not as a result of questioning. I think that it is impex~tive the court know wh~t she has heard. ~ COURT: Overrule the objection. Let's get some times now when she has alleged ~ings have taken place. Ask the question againe -19- BY MR. GRIFFIE: Q Mr. Stoner, h~ve there been incidents when Nicole h~s explained to you or described to you either statements or actions that she has seen between Betty and Lee that are inappropriate in your opinion and after you've told me about these incidents try to give me a time-frame when you heard them and when they were said to you? A She, Nicole, told me that she walked in the bedroom one time and Mommy was standing there with no bra on and Lee was laying in the bed. That's as far as she went. I dropped the issue. We went to pick Nicole up. Q Do you know approximately when that was told to you? A This would have been-- I have dates and stuff here, your Honor. THE COURT: The question is when did she tell you this? BY MR. GRIFFIE: Q Mr. Stoner, if you're aware from your-- MR. ANDREWS: I object. I think he's looking for answers to that last question. A I have the d~tes here of when these things were said, wrote down. MR. ANDREWS: We'll give you time. You can look up and find them. THE COURT: We'll assume he doesn't have the answer to that question and move on to the next one. Q Mr. Stoner, you were beginning to go on to another statement before we asked you to find the date of that last statement or another incident. Can you describe anymore incidents such as this? A Where I went in to pick Nicole up and there was namecalling. -20- Nicole got in the car and told me that Lee had said, "Dick is here." And the way she started was, "Lee called you a bad word. I said, "He did?" "Yes, he said Dick is here." And Sue, at that point, she said, "Well, Lee must have just got your Dad's name wrong." And we left it drop. There's just so much. The only thing I'm concerned about is what's in the best interest Of Nicole. ~ Other than that, were there any other incidents of namecalling that Nicole brought to your attention or you or anyone else? A. He called her a name. He called her asshole. And that's all I have to go on. I'm not in there as to what Nicole does tell me. ~ But your six year old or five year old is using these words and telling you these things? A. She didn't want to use the word. I told her, I said, well, I said, "Just whatever it was," I said, "Go ahead and tell me." I mean, I'm sure she has heard it before there. Any other incidents like that of the namecalling? A. There was times where her mother and she said that, "Mom and Lee were calling me names, both of them." There was a time she had mentioned as far as her hair being pulled also. Something I forgot about that was along with the other incidents. ~ Mr. Stoner, even to put some general timeframe on this, was it within the last year or can you tell me the month -21- or season these types of things were starting to occur or be brought to your attention? ~. It was almost immediately after the hearing back in July, the last hearing through the summertime that these things were going on. That's what really concerned me. Well, even before, I guess, there was incidences. ~ Well, if it was before a year and a half ago then? ~ Okay. ~ Do you know what type of home Betty lives in, what type of residence it is? A. She has an apartment. I'm not sure. Nicole had told me that she was sick of being drug back and forth to Lee's place and back, I guess, not knowing. There is an incident here I'd like to bring up. Nicole had told me from the time Betty had left they were staying at Lee's quite frequently. MR. ANDREWS: Excuse me. find out when we're talking about? talking about before March of '87. THE COURT: Sustained. BY MR. GRIFFIE: occur? A. Could I object until we It sounds like we're even The incident you wish to testify about, when did that Right after the last hearing in say March, April. -22- I'd say in April. ~ '87? A. May in this area. It had started but it persisted. She was complaining about there was no bed provided at least. She had to sleep on the couch. Stuff like this. And it was about a year later until Nicole had come to me and said that she got a bed at least. ~ Has Nicole, in your petition, you indicated that Nicole has asked to be able to live with you. When did she begin making those statements? A. They were pretty much all along that she wanted to be with us and she had mentioned things I'd like to live here or just little comments. I said, "You would, huh?" It has been all along really that she have been mentioning about wanting to live with us. ~ Would these be at times whenever she is being taken home from a visit,that sort of thing,where she is saying she'd like to stay there? ~. Being taken home. She doesn't want to leave. Got to more or less round her up and say, "Come on, we must go. End up being late getting her back." She wants to take the long way when we go back. So we'll just kind of cut off a side street and tell her this is the long way back. She doesn't want to go whenever it's time. -23- ~ Does she ever say about wanting to stay there and live with you other than times when you're getting ready to take her home? Times other than when you're ready to take her home does she talk about wanting to live with you? A. Yes, there has been many occasions where just because of the incidences, the way she spoke, that she wanted to live with us. Well, even since we moved over into Perry County. Well, prior to moving over there in June when she would come out I'd ask her what she wanted to do and she'd want to go over to Sue's house instead of going to a festival Let's go over to Sue's. Does she have friends around the house where you or a park. live now? A. There are several little friends her age. Mr. Stoner, in discussing anything regarding this case with Nicole, have you mentioned to her anything about this case that there's a custody hearing or that issue is coming up? A. I talked to Sally Rooney because Nicole, she asked questions of that stuff and Sally told me just to tell her. MR. ANDREWS: Objection. THE COURT: Sally is here. Is that right? She is going to be testifying. Then we'll permit the question. MR. GRIFFIE: Yes. A. The only thing I said to Nicole is, "If you do talk to the Judge, tell the Judge the truth." She had asked one thing -24- since the petition, Nicole. Things, she said, have changed considerably since the petition. Since you filed this and it was served on Betty? A. Yes. Has Nicole told you anything about what her mother is telling her about the change in custody? A. Yes. She said that, "If you go live with your Dad I'll kill myself." This was mentioned. And, again, Micole said this to you? A. Nicole was telling me this that she said that, "Mommy said that if I come live with you, Dad, she won't have no family." And I'm thinking, well, you know. I told Nicole, I said, "Don't you worry about this." I said, "You just let the judge decide. You just tell him the truth and he'll decide." MR. ANDREWS: Objection. This is all so self-serving. THE COURT: I agree. BY MR. GRIFFIE: ~ Mr. Stoner, now that you're residing in Perry County with Sue Naylor, whenever Nicole comes over for weekend visits, what type of things do you personally do with her? A. Well, we will color. She loves to ride her bike. I'll go out and watch her ride her bicycle. We play games, whatever. There are times where she wants to be with her little friends but I don't know, go to festivals and just do a lot. -25- And we went boating. ~ Does she show a lot of attention to you and to Sue and Stacy when she's there? A. When she first comes it's like she's starving for attention. She'll do little mischievous things to try to get attention. And a lot of times on the weekends when we get her on Fridays I'll have to sit her down and I'll say, "Nicole, let's have a talk." So I sit her down and I say, "There's no need for this. If you want something ask nicely, that's all." We don't need to make a big ruckus over-- But she really wants attention. She needs attention. There have been statements. MR. ANDREWS: You have not been asked a question. I don't believe. I don't know where he's going with this statement, your Honor. BY MR. GRIFFIE: ~ Mr. Stoner, when did you contact SaLly Rooney with respect to these recent problems you're talking about? Do you know when you first contacted her or saw her? Back in April I contacted Sally. You're saying April 19887 Yes, started going in counseling. It was after the incidences with the kicking and stuff like this that I started going with Nicole to Sally Rooney. ~ Do you know how many times this year you had seen Sally? -26- A. I'm not exacly sure, five, six, seven. I'm not exactly sure. ~ Mr. Stoner, whenever Nicole is with you, how do you correct her or punish her, if she does wrong? A. Well, she's sent to her room, made to stay there for fifteen minutes, something like this. ~ Can you recall ever having to strike her or kick her? t I may have paddled her once, as far as giving her a swat on the hind-end, you know, but normally it's just she's made to go to her room and/or set in a chair and that's it. How does Nicole get along with Sue Naylor? Very well. She kisses Sue good-night. They're like buddies. ~ Is there a lot of affection shown in your house? A. Yes, there is. ~ Kissing Sue good-night? A. Yes, there is. There's a lot of. ~ Mr. Stoner, had you ever tried to talk with your wife about the problems you referred to, the statements that Nicole was making to you about things that were happening at Betty's house? Ao There was things mentioned on Betty's behalf that was brainwashing Nicole or confusing her and stuff like this, but I tried to-- -27- MR. ANDREWS: Objection, your Honor. That's not the question. BY MR. GRIFFIE: ~ With respect to the problems that you were told about by Nicole, the problems in at Betty's house, did you ever talk to Betty about correcting them,about getting rid of those? A. I tried to. I tried to talk to her about it. I made statements as far as to the problem between her and Stacy that all it would take would be an easy, "I'm sorry",could patch a lot up, but it was never done. ~ How about some of the other, the statements that have been made to Nicole or the kicking or any of those things. Had you tried in the past to talk to Betty about them? ~ Anytime anything is mentioned I was told that I'm lying about it that that never happens, that I was just-- She was telling me that it never happened. There's no talking. I don't want to argue. ~ Mr. Stoner, your petition, in your petition you're asking the court to give you custody of both children. Is that correct? A. Yes, I am. ~ And if Nicole comes to live with you, would she attend the Carrol Elementary, you referred to, would she attend that school? -28- Nicole's little friends up there in Perry County. their names? A. Yes, that's the school she'd attend. What ~sort of contact would you propose for the children to have with their mother? ~ I'd like to see the visitation as far as Stacy probably pending the way Betty would handle it. I'd like to see them get it straightened out between them but I'd like to see the visitation very much. But Stacy is going to be another situation to deal with there. And Nicole, definitely there's no problem. There'd be no problem working the visitation out but Stacy would be the one that would be hard. I think given time something could be worked out with Stacy. MR. GRIFFIE: That's all the questions I have at this point. THE COURT: Mr. Andrews, cross examination. CROSS EXAMINATION BY MR. ANDREWS: Mr. Stoner, a couple times here you talked about Do you know Yes, there's Trish. What's Trish's last name? Her last name? Yes. A. I did know it. -29- playmate? A. Q. A. Q. A. Where does she live? Two houses up. Is she still there? Still living there? Yes. I'm not exactly sure. Not sure whether she is or isn't? Who's the other Well, there's a Chaz. Where does Chaz live? That's her brother. Trisha's brother? Yes. Do you know Chaz's last name? Would be the same as her's. I wouldn't want to say a name because I'm not sure. ~ And you say you do know that they're still there or you're not sure if they're still there? I'm not sure what their situation is. When did you last see either of those two little kids? Just here over the weekend they were down. Just this past weekend? Yes. Today is Monday. A. Yes. -30- A. Nicole. A. A. Who were they down to play with? Well, there's Jimmy, come down to play with Stacy or How old are these kids? Jimmy? Who is Jimmy now? This is the little friend's uncle, I think it is, the way it is. ~ Do you know Jimmy's last name? ~ No. ~ The only child you have in your household is Stacy? A. Yes. ~ Sue Naylor doesn't have any kids? A. No. ~ Stacy is sixteen? A. No, she's thirteen. ~ Excuse me, thirteen. These same kids that come down to play with Nicole, age six, come down to pay with Stacy also? A. Stacy does play with them, yes. ~ Now, did I understand you to say-- A. There's another little girl in the development then that lives up in--Trudy--and she just moved in recently. Trudy?l .~ Yes. Do you know her last name? -31- A. NO, she just moved in recently. I spoke with the parents and stuff. ~ When Nicole comes to visit you on a Wednesday evening or on a weekend, is that when you do these activities that Mr. Griffie asked you about, coloring, riding bikes, playing games, going to fairs, things such as that? A. Yes. Would it be true to say that you try to make her visits as enjoyable as possible? Yes, I do. Do you actually go to the trouble of trying to plan activities for her while she is with you? A. Not really. Nicole comes up with the ideas as far as things to do because they're the things that she enjoys. The things I know that she enjoys or feel I know she enjoys, picking berries and stuff. It's mentioned to her and do you want to go do it. ~ You make yourself available to her for most of the weekend if not the entire weekend when she's coming up? A. Sure. I want to see her, yes. Now, I believe you indicated you started to get these reports, these negative reports, from Nicole almost immediately after last year's hearing. Is ~at correct? -32- A. Within, yes, within a month's time there were some things that were being brought up, yes. ~ It's fair to say at that point you became dissatisfied with the custody arrangement? Is that not true? A. I was dissatisfied with the custody arrangement at the last hearing. ~ You've been dissatisfied with the arrangement since at least the time of the last hearing, last summer? Yes, sir. And you started getting these reports from Nicole soon after that hearing. Is that correct? A. Yes. Isn't it fair to say that you would, you have a very sensitive ear to hearing these reports that Nicole makes? ~ She's my daughter. I love her very much. Yes, I listen to what she has to say. ~ At times there you went through some notes that you app~ently have been keeping. Is that right? A. Yes. Do you mind if I take a look at those? Before I have you get those out, let me ask you when did you start keeping written records of the information you were receiving from Nicole? don't have all of them. -33- to yourself. Is that right? A. Yes. What's the earliest dated one you have? This one is 11/6/87. Last November you started making written reports How do you decide? ~ Of significant things that you were becoming aware of that you thought were significant to this custody arrangement? A. I kept notes all along even prior to-- I had kept notes. I have probably some at home in another folder. I don't understand as far as this stuff goes. I just want to keep track of what is going on. ~ You've been keeping a written record. How do you decide when to write something down and when not to write something down? How do I decide that? Yes. A. If it's of importance, if it's not in the best interest of Nicole, I'll write it down. ~ So if she reports something to you that you think is bad or shouldn't be happening, you write it down? Yes. Do you try and write it down as soon as possible? Yes. For instance, you gave an account here of her coming -34- about-- A. into the bedroom and seeing Betty naked from the waist up with Lee in the bedroom. Do you have that written down there? I have that written down as to when Nicole told me It's definitely written down. Can you show me where it's written down? As far as having it in he~ I don't know. But I wrote it down, like I say. Written down someplace else? A. I looked. I have all this ,yes. On any weekends when Nicole gets in the car and doesn't say anything to you, do you write that down? A. No. Talk to Nicole this week, everything seemed to be going well at home. There's no problems. Do you write down any positive reports like that? A. A positive thing means that things are going okay. ~ Do you write anything like that down? No need, is there? A. No, because everything seems to be fine. At that point, no, there isn't. ~ Now, you indicated that Nicole sometimes acts up a little bit when she first comes to your house. Is that right? A. Yes. And you think she's starved for attention? Isn't that what you said? -35- A. She seems to be, yes. And this is even after coming to your house on a regular basis when she arrives at your house, you say she seems to be starved for attention? Correct? AnSwer my question, Mr. Stoner. Am I correct? A. Would you repeat the question? I'm trying to find the papers with the dates. Here are dates as to several. ~ My question to you was after Nicole has come to your place every other weekend and every other Wednesday, even knowing what you're going to be doing with her or how much of your time you're going to be devoting to he~, you say when she arrives at your house she acts as if she's starved for attention. She acts out so as to get attention. Is that right? A. This is what it seems like to me at times, yes. Is it fair to say that when she give you the sorts of reports that cause you to write down these things she has your attention? A. She has, yes. Correct? A. That ~hen she tells me these things that that gets my attention? She has your undivided attention, does she not? A. Yes. I'm not sure if it's on there but there are some dates as far as-- ~ When I asked you before when you started to write -36- these things down, first you said the earliest was November and then you said you'd been writing them down all along. Is that correct? A. Yes, more or less. Now, as far as for any periods-- I can't help but note that these two sheets that you've given me that are numbered lA and 2A go down from the beginning of the first sheet with the date, November 6th, 1987. I gather this last November. Right? Okay. Through to the most current date, midway down on the second page, June 27th, I assume that's '88, am I correct? A. Yes. All appear to be--have been written with the same pen. Do you agree? A. Yes. What I did was write over my notes and I took these facts that I would like to be brought out. I'm not able to be turned loose up here to go ahead and explain to the courts. ~ So this is your compilation of what you find significant from your own notes? Is that what you're saying? A. More or less, yes. ~ So this is something you've prepared just recently? A. Yes. ~ Now looking at the very earliest one, November 6th, you have down there Nicole told you that her Mom jerks her around by the arm. A. Yes. -37- Is that right? Yes, it is. ~ That sort of information Nicole just sort of blurts out as she gets in the car to go to your place, like a volcano? A. It's not always in the car. It could be at anytime during the weekend when we're playing games. She'll just talk. She'll tell me things. ~ And you've got to be ready to hear it whenever it comes out? A. I just hear it, I guess, when it does come out. Isn't it true, Mr. Stoner, that you question Nicole constantly about what's going on in her household? A. No. I'm concerned about Nicole's safety and her we~l-being, as far as what goes on in her household, otherwise, I don't really care. ~ Do you not question her on each occasion that she comes to visit you with regard to how she is treated by her mother? ~ No. Lehman? Do you question her about how she is treated by Lee A. No, I do not. ~ Now, you indicated that one time when she said that her Mom called her an asshole that she didn't want to say the word -38- and you had to prompt it out of her. A. A. Is that right? I didn't say that her mother called her an asshole. Well, I misunderstood your testimony. Lee Lehman was the one that had, she had told me that called her an asshole. ~ But she didn't want to say that word? A. No, she doesn't. ~ You had to prompt that? A. She knows as far as swearing now or any bad word, she knows bad words from good words. ~ You had to encourage her, Nicole, it's all right to tell us. You can use that word here. Tell me what's going on. ~ that what you did? A. I told her, "Yes, go ahead and"-- ~ Have you had Nicole remove her clothing when she has come to visit you so you could examine her body for marks? A. Yes, she has. ~ I'm not asking whether she has. I'm asking whether you have, sir. Have you directed her or had her remove her clothing so you could examine her body for marks? A. I didn't have to direct her, no. where Lee kicked me." ~ Now the kicking took place where? Where on her body did she say she was kicked? She just, "Look here She was kicked on her leg. -39- Where on her leg? Right below her knee. That's below the knee. So you don't have to remove any clothing to look at that, do you? A. No. She pulled her pantleg up or whatever. You said there were other times when her clothing had been removed and you've been examining her body for marks. Is that correct? A. What do you mean? I examined for no reason or what are you saying? As a matter of investigation? A. No. Now I asked you if you had ever directed her to do that and you said, no, you didn't direct her but she has taken her clothing off. Is that correct? A. She pulled her pants down and showed me the mark on her butt. ~ You've never directed her to undress so you could examine her body to see if she had any marks? A. No, I didn't. She showed me that mark on her leg. She pulled her pantleg up or whatever to show me that. That's all. ~ If Nicole were to say differently then she'd be saying something that was not accurate? ~ If Nicole would say something differently? -40- Yes. That's what you're saying? I guess. The home where you are currently living in Perry County, you've been there how long? A. Since June. Did I understand you to say you don't even oWn that home? A. A. A. A. now. A. A. A. No, I don't. That's the home of your girlfriend? Yes. Titled in her name alone? Yes. How long have you been living with her? A year. As far as her moving in, yes, over a year Does Susan Naylor work? Yes, she does. Where does she work? Kinney Shoe. And what are her working hours typically? 7 to 3, 6:30 to 3, somewhere in there. 6:30 in the morning until 3 in the afternoon? that what you've said? A. Yes, in that area. Is In order for her to get to work at 6:30 in the morning -41- to Kinney Shoe from Perry County, what time must she leave the home? A. A. I think she haves at quarter of six. Somewhere around 5:45? Approximately. You work at Carolina. driver, are you? No. Now you're not an over-the-road You're working on the dock? Yes. What are your working hours? 11:30 to 8 in the morning. 11:30 at night until 8:00 in the morning? Yes. And how long does it take you to get to your home in Perry County after getting off work at 8? A. Twenty, twenty-five minutes, at So you're home around 8:25? Yes. A. A. start school at Carroll Township School? the most. Do you ever get overtime? No. You're always off at 8? Yes. What time does Nicole, would she be scheduled to -42- I'm not sure. You don't know. How would she get to school? On the bus. Who would get her ready? There's a lady up the street that her children go to that school. She would be gotten ready in the mornings. ~ How would she get to that lady up the street's house to get ready for school? A. I'm sure it could be arranged. I don't know. We've not discussed any of that and I'm sure there would be appropriate arrangements made. A. No, she would go to another. Do you know whether there's a bus? You say the school is only a mile and a half away? A. That school, yes. You wouldn't have Nicole walk that mile and a half, When does school start in Perry County, do you know? No. Stacy does not go to that same school, does she? There's a bus that picks the children up and would you? A. No. takes them. Takes them a mile and a half? A. Yes. -43- lady's? A. Nicole. A. You're certain of that? A. No, I won't sit here andswear to it, no, but I'm sure little ones were going to school there and that's the way they were getting there. The Senior High and the Elementary, it seems to me that they ride the same bus. I've got a set-up as far as this week, possibly tomorrow or so to go over and set Stacy up with her school. That's why I don't know. ~ Was Stacy old enough to get up and get her breakfast and get off to school? A. Is she? Yes. A. No. But Nicole is not, is she? No. You're saying Nicole would have to get to a neighbor There's a possibility. I mean, Stacy is old enough too. I'm not asking about Stacy now. I'm asking about Yes. These are things that we've not discussed at this point yet that we would have to work out but we've not really. ~ Well, now, your wife leaves home at 5:45 in the morning and you don't return home until about 8:30 in the morning. -44- wife. THE COURT: I believe you used the word "wife". MR. ANDREWS: Excuse me, your Honor. I don't mean BY MR. ANDREWS: ~ Sue Naylor, the woman of the house. Is that correct? A. Yes. ~ Now you know that Nicole is going to have to be off to school before you get home? A. Yes. ~ So, do you envision Sue Naylor taking her down to this neighbor lady's house? A. If it's in the best interest, I'm sure that's the way it would be worked. Stacy is old enough that Stacy could help in that department. ~ So you would give Stacy,the thirteen year old, the responsibility of getting Nicole, a six year old, down to the neighbor's house? A. I'm not saying for positively sure I would. I feel Stacy could handle the responsibility very well, yes. ~ Mr. Stoner, it was made clear to you, was it not, after the last hearing last July, I believe it was, that Betty Stoner did not want to go to counseling with Sally Rooney? ae counselor. Yes. Is that correct? She didn't want to go to counseling with any -45- ~ Well, in fact, you said you'd go to a different counselor if she'd pay half of the counseling costs but that's the only way you'd go to a different counselor than Sally Rooney? A. No, I'm not saying that's the only way I would have went. I know there's counseling needed. ~ Wasn't that what you said through your counsel that you would change counselors away from Sally Rooney if Mrs. Stoner paid off the counseling costs? A. I'm not sure whether that's the way I said it or not. ~ Did you ever offer to go to a different counselor than Sally Rooney and you pay the counseling? We went. Listen to my question. I think it could be answered yes or no, Mr. Stoner. A. I was going to tell you who I had went to. We had been to three different counselors, two of them her and I together and one I went to,a third different one and, yes, as far as, and Sally. ~ My question is, since the last hearing, did you ever offer to engage in counseling with a counselor other than Sally Rooney with you paying the costs? A. discussed. The offer was made but there was hem-hawing. How was that offer made? I'm not :sure whether Brad had-- I know it was -46- Put it that way, but there was nothing~as far as the attempt to go. I'd been to enough counselors with Betty that had done no good. ~ Now, when did this real break finally occur between Stacy and her mother where the visitation actually stopped? A. Was after their last argument. ~ Which was when? A. It seems to me it was in February. ~ When that occurred you were still living here in Carlisle. Is that correct? A. Yes, it was. ~ North Middleton Township. Is that where you were? A. Yes. ~ And you say there was an occasion where Stacy called you from Betty's home and you came right in and picked her up? A. February 7th. ~ That was February 7th. Now at the time that that occurred in February, had you already made plans to move to Perry County in June? A. I can't say, not definitely. This house in Perry County that Sue Naylor has, has she had it for a long time and you just moved there in June, or did she just buy it in June? A. No. She has had it four years. So you maybe have talked about going up there and -47- living throughout the course of last year? A. No. There was not really any discussiCnabout it. ~ Until when? A. Until I lost all hope. I tried. ~ Lost all hope of what? A. I tried to reconcile and Sue knowing this, it wasn't even discussed. In other words, when I really, more or less decided that's it, there is no more. ~ So when you say there's no hope, you're talking about a reconciliation with Betty? A. Well, that's what I had, where my thoughts were through the last be~ings and all, yes. ~ And it was only after you reached that point that you decided, well, I'll go up to Perry County and live? A. Well, I'm sure once-- Yes. Didn't you indicate before that Sue Naylor had moved in with you last fall? Yes. By that time you had already reconciled yourself that there was no hope for a reconciliation here, hadn't you? A. No. She lived there knowing that there could have been a chance. She took that chance there, as far as that goes. ~ Even with all these reports that you're getting from Nicole starting just a month after this hearing, it was your desire to get back together with Betty? -48- /03 A. That's why a lot of this wasn't brought--a lot wasn't brought up at the last hearing. ~ So while you're living with Sue Naylor, when did you finally realize that you're never getting back together with Betty? A. I don't know. I should have realized it a long time ago, I guess. ~ My question is not when you should have. When did you realize it and started planning to move to Perry County? A. I don't know. Was it while you were negotiating a property settlement through correspondence taking place last winter? A. I really don't-- We had discussed-- There was things mentioned over aLperiod of time but it got to the point where even keeping-- I have two other places and to try to keep all the places something did have to go. We had to do one thing or the other. We couldn't keep her home going, keep heating it and everything. We had to do something. We were living together at that time. ~ One of the alternatives was the place in Perry County, could have been sold and both of you could have lived here in Cumberland County? A. Exactly. Where you both work. Right? Yes. -49- Io ? Carolina? A. Sue Naylor works at Kinney Shoe and you work at Yes. But it was after you saw the breakdown of the relationship between Stacy and Betty you decided, well, I'll just take Stacy up to Perry County? A. No, that was not the reason to move to Perry County. I have a mobile home here. I bought a home in town, that's two apartments. And her home is over there in a development, in a wooded area. And, as far as all the homes, yes, it's a nicer home than any of the two that I have. It offers the kids the freedom to play, to go. ~ Have you thought about where you will be if your relationship with Sue Naylor doesn't stick? A. I don't forget about that stuff, yes. Until you moved up to Perry County. Now you answered some questions about Betty taking the kids to church. attending church here in town? Yes, I was. Same church you've always attended? Yes. Were you Which is which church? Church Of God. And were you going with Sue Naylor to that church service? Yes. -50- attended? A. And is that the church that Betty previously Yes. She showed their twice. You indicated something that Stacy said, the same weekend, I think, you went down and picked her up, was that Betty reported that she was too humiliated to go to church. Is that right? A. Well, I was only to come over to pick the kids up, the way I understood it. ~ This is the church you were attending with your live-in girlfriend. Right? A. Yes. Now, you indicated that you were asking for additional contact with Nicole and it was being denied to you, I believe is what you said. Did you make any such inquiries at all through Mr. Griffie? A. As far as to have him send a letter? That's right. A. No. I was trying to go directly to Betty. Well, now, if you ran into problems with insurance claim forms,for instance, where something wasn't being worked out right, you went right to Mr. Griffie and he'd send me a letter and isn't that the way we communicated? A. And it still wasn't worked out, was it? That's the way you attempted to do it, isn't it? A. Yes. -51- ~ When you wanted more time with Nicole, did you make that same effort? A. I'm not sure if I got in touch with Brad. I'm sure I left him know that I made efforts. ~ You indicated you started back-up counseling with Sally Rooney this past, I believe you said, April, but sometime this past winter or spring. Is that correct? A. Yes. ~ You went, you took Stacy and you took Nicole. Am I correct? A. Yes. You did this on either Wednesday evenings or on the weekends that you had Nicole? A. Usually on Fridays, yes. ~ After you picked her up from Betty? A. Yes. ~ You never said to Betty, Betty, I'm going to take Nicole to see Sally Rooney again, did you? A. No. ~ Your purpose for doing that already was to support a petition for a change of custody, was it not? A. My purpose of taking Nicole to Sally Rooney without Betty knowing was because Nicole was afraid she'd be in trouble. ~ For you. She was afraid she'd be in trouble for you taking her there? -52- correct? A. A. Yes. When you went to Sally Rooney's you drove. Is that Either I or Sue. Sue Naylor was going also? Yes. Would you typically go directly after picking Nicole up on Friday, you'd go directly to Sally Rooney, or would you go back to your place for awhile first? A. No, we'd go. The appointments were like for 5:00 or something like that, 5:30 or in there. ~ First, the very first time you took Nicole there instead of taking her back to your place on that Friday, what did you say to Nicole to explain to her what was going on? A. Told her we were going down to talk to Sally Rooney. She likes Sally. A. ~ You talked about Nicole wetting the bed. Stacy have that problem when she was a young girl? A. Until she was four or five. A. Did you tell her why? No. What did you do after seeing Sally Rooney that day? We would go back over home. Did Actually was a little older than that, wasn't it? I don't believe so. -53- Carlisle? A. A. A. A. You don't believe so? No. Did you know who Nicole's pediatrician is in As far as-- I'm not sure. Have you ever made-- Doorly was. Dr. Thomas Doorly? Was. Was he the pediatrician while you all lived together? She had changed doctors. She was going to the dispensary for reasons that I don't know. ~ Was Dr. Doorly the pediatrician you used while you were all together? A. I'm not sure of his full title. Was he the doctor you took the kids to when you were all living together? A. What? Was he the doctor you took the kids to when you were all together9 Is that right? A. Yes. You're concerned about the fact that Nicole is still wetting her bed. A. Yes. Have you made any effort to talk to Dr. Doorly about that -54- as to whether it is a problem to be concerned about and how to best handle it? A. I talked with Sally Rooney about it. That wasn't my question, sir. Have you talked to Dr. Doorly? A. No, I didn't talk to Dr. Doorly about that, no. MR. ANDREWS: I have no further questions. Thank you. THE COURT: Mr. Griffie, any additional questions? MR. GRIFFIE: A few, your Honor. REDIRECT EXAMINATION BY MR. GRIFFIE: ~ Mr. Stoner, when you made the initial contact this year, either winter or spring, with Sally Rooney, a question was asked of you as to whether you were planning a custody action at that point or this action at this point? Can you explain why you did go to Sally Rooney back last-- A. It was out of concern of what Nicole was telling me as far as the hitting, the kicking, the pulling of hair and so on. I was concerned totally about both of themproblems. Between Betty and the children and I, just needed-- I needed help as far as at times what do I say, what do I do, because it concerns me very much when these things are happening to my daughter. ~ It was out of concern for yourself and your children, not as part of any plan for litigation? -55- A. NO, because if there was plans for to come back for custody I'm sure we would have done it. It was stated in the petition, one of them, that we could have done that August a year ago. In other words, that was left open by the courts that we could have done that and whi~ things seemed smooth. But as soon as I seemed not to be on top of things, then things started to happen and, yes, it did upset me very much. Are you paying child support now? Yes, I am. Is that wage attached or voluntary? Do they take it out of your check? A. No, it is not being taken out of my check. I pay that voluntarily. ~ Are you up to date with that? A. Yes, I am. ~ Now, in answer to cross examination questions, you indicate you pay attention to your daughter Nicole when she talks about problems at her mother's residence. Do you generally pay attention to your daughter when she talks to you? A. Yes. But I want to make clear. I believe you answered this for me several times. When she brings up these problems, you do not dwell on them or continue to quiz her on them, that sort of thing? A. Try to. I let her talk, listen to what she says then just go on with whatever you're doing. Let it alone. -56- I1( there? A. Oh, no, I don't make a big scene out of none of it. ~ You testified that Nicole was afraid she'd get in trouble if her Mom knew she went to Sally Rooney. Is that correct? Yes. Did she ever tell you she got in trouble for going She said that once Betty found out that I was taking her to Sally Rooney-- What had happened, Nicole said that morning before school she was crying. I said, "You were?" I said, "Why?" "Because Mommy was questioning about going to Sally Rooney." So at that point I knew she had told her that we were going, and Nicole was upset about it and said that, "Mommy ca~led Sally Rooney, was calling Sally Rooney names." MR. GRIFFIE: That's all the questions I have. THE COURT: Mr. Andrews. RECROSS EXAMINATION BY MR. ANDREWS: ~ You have written in the summary supposedly what names she called Sally Rooney. A. Yes. What was that, so we don't leave it to everybody's imagination? A. "Sally Rooney's a creep." And she was crying because her Mom was asking her about going to see Sally Rooney. Is that right? -57- her. A. She told me that it was because her Mom was questioning ~ Had you told Nicole to keep it quiet? "We're taking you to see Sally. You don't have to tell yourMom about this." Isn't that what you told Nicole? A. No. I didn't have to tell Nicole to keep it quiet. Nicole was afraid to tell her Mom about it. ~ How did you feel about that? How did you feel about Nicole being afraid to tell her Mom about going to see the psychologist? A. I don't know. I don't think it's qui~right. Did you think of picking up the phone and calling Betty and saying, "I'm going to take her to see Sally Rooney and I'm doing it and don't blame Nicole"? Did you ever think of doing that? A. It passed my mind. I don't want the arguments with her and that's one reason the contact between her and I is very limited. ~ Mr. Griffie asked you when you started why you went to see Sally Rooney, whether you were yet planning a custody action, and you said, "No." When did you decide to file this petition for custody? A. Through Brad's recommendation. My question was, how long did it take to actually file the petition once you decided to do it? -58- A. I don't know. It was over a period of time that that once the things built to the point where I thought I've got to do something. I don't know exactly when, a couple months ago maybe. ~ Now, you were also asked about support, how you're doing on your child support. In fact, this petition was filed, I think, within ten days of your support being increased $10 a week, was it not? h. Yes. So Betty had you into court to increase the support and it went up $10 a week and within 10 days you filed this petition to change the custody arrangement. Correct? A. Yes. MR. ANDREWS: No further questions. THE COURT: Anything else, Mr. Griffie? RE-REDIRECT EXAMINATION BY MR. GRIFFIE: ~ Was the $10 support increase by your agreement? h. Yes, it was. We didn't protest it at all. ~ Was your decision to file for custody made prior to Betty's application for increased support? h. Yes, really. As far as how long, I'm not sure, but once we were knowing what was going on then. MR. GRIFFIE: That's all the questions I have, your Honor. -59- THE COURT: Just one or two from me, I might have forgotten. BY THE COURT: ~ What is Sue Naylor's marital status? Is she divorced? A. She was never married. How did she get that house over in Perry County, do you know? A. Through working. She bought it, worked and her brother-in-law had built it, which saved her some money. ~ Stacy called you on the phone and sometime in February and you went out and got her. She had this arrangement with her mother. And she told you that she didn't want to go back and visit with her mother anymore. Is that what she said? A. Yes, she said, "No matter what you tell me," or something like that, "you're not going to talk me into going back in anymore." ~ Did you insist that she visit with her mother? A. Force her? ~ Yes. A. I told her that it's not right, I said, Stacy. And she does know enough about the bible as far as what's right and what'~ not right. And I said, "Stacy, you're thirteen. You know right from wrong." I can't sway a decision like I couldn't sway Betty's decision to leave. And Stacy, I really -60- can't sway. But as far as to force Stacy, I didn't feel I would gain the respect from her, I won't get by force. ~ If you got custody of Nicole, at what age would you just leave her make up her mind she wasn't going to visit her mother either? A. Nicole? I'm asking you what age would you let her make up her mind to do that, twelve, thirteen? A. Yes. You'd just leave her not go see her mother because she didn't want to go? A. I don't think it's right, no. I'd like to work it out, is what I'm after. If I get custody I would like to see the counseling between Betty and Stacy, your Honor. ~ That answered my question. My concern is you have one daughter with you. She doesn't want to go visit her mother and she doesn't visit and that's the end of the relationship. A. It shouldn't be. You get the other one, what I'm afraid of is a couple years or sometime the same thing is going to happen there. And you let them make up their own minds apparently to do what they want to do. A. It shouldn't be this way. It should have been worked out a long time ago. I did work and talk with Stacy once. Second time. Betty is an adult. We have telephones. She has -61- the number. She could have called and said, "Stacy, I'm sorry," and that, just that small phrase would have more than likely worked things out. But it was never done, your Honor. I don't feel, as far as to force Stacy, at her age. Nicole, yes, Nicole,I can talk with Nicole. ~ But at what age would you let her make up her own mind that she didn't want to visit with her mother? A. Thirteen, I guess, Stacy's age and seemed to have the mature nature about her but, no, Nicole's age, no. ~ You wou~d force her to go, physically you'd take her and deliver her? A. I'd try to work it out with Betty and say, what's the problem, let's somehow reach-- ~ My question is, would you forcibly pick her up and deliver her to her mother when she was supposed to have her? A. If it came to that, I guess I would, because I want to see the kids with their mother. She's their mother. No one is ever going to change that. They should be with her. THE COURT: Gentlemen, I think that's really all I had. Mr. Griffie, any additional questions based on anything I asked? MR. GRIFFIE: MR. ANDREWS: THE COURT: Mr. Stoner. No, your Honor. None, your Honor. I think that's it. You may step down, -62- I think we'll take a ten minute recess, gentlemen. (Court recessed from 11:11 a.m. to 11:24 a.m.) MR. GRIFFIE: Your Honor, the first two witnesses after recess are very brief witnesses. First, Trudy Stoner. Whereupon, TRUDY ANN STONER having been duly sworn, according to law, testified as follows: DIRECT EXAMINATION BY MR. GRIFFIE: Please state your name and address? Trudy Ann Stoner 70 Meadowbrook Road, Carlisle. Ms. Stoner, are you related to the parties in this action? A. Q. A. Q. A. O. bruises? Aunt. You're the children's aunt? Yes. Are you Ed's sister? Sister. Were you here in the courtroom this morning to hear Mr. Stoner's testimony? A. Yes. He testified about two incidents with bruises on Nicole, one on the leg and one on the bottom. Yes. Did you have the opportunity to see either of those -63- The bruise on her bottom. And how did that come to your attention? We were over for a visit and Nicole was just running around playing and turned around and pulled her panties down and said, "Look." And I said, "What did you do?" She said, "Nothing. Lee kicked me." ~ Now, was there any kind of conversation going on about Betty or Lee or anything when this occurred? that? h. Nothing. I didn't question her. okay," and left it go at that. No. What did you or anyone else there say after she did business? h. Yes. MR. GRIFFIE: your Honor. h. or four. Q. A. Ail I said was, "Oh, Did she then go on about her play or her That's all the questions I have, CROSS EXAMINATION BY MR. ANDREWS: When was this? I'm not exactly sure, maybe four months ago, three I'm not real sure. Was it winter or spring? Spring. -64- Springtime? Yes, I believe. And for what reason were you going to Ed's house? Just for a visit. We were there for supper, I believe. We went over to visit. They asked us to stay for supper. It was a Saturday or Sunday. And who all was there for supper? A. Ed, Sue, Stacy, Nicole, my mother and myself. And you say without any question at all Nicole just came walking by, pulled down her pants, and said, "Look .at my bruise where Lee kicked me"? A. She was running around and she just turned around and pulled her panties down and said, "Look". ~ I could certainly see why you wouldn't maybe ask Nicole anymore questions about that but you certainly must have talked to Edward about it? I don't say anything about what's going on too much. Didn't say anything to Edward about it? A. No. Well, when were you first asked to remember back to this incident when this thing occurred? A. When he filed the petition he said that he was filing to go back in for custody. "He" meaning Edward, your brother? A. Yes. -65- ~ Did he call you up and tell you he was doing that or were you together at the time? I'm not real sure. I believe we were together at the time. O. And did he ask you if you remembered this incident when Nicole had done these things? A. He asked if I had seen either of the bruises and I said, "Yes, the one on the bottom, that was it." And you said, "Yes." You remember seeing that one? A. Yes. Do you remember how long before it was before Edward was asking you about it that it was that it happened, how long? How far back were you remembering at that point in time? A. A couple months maybe. Now you say you were here this morning and you heard Edward's testimony. Is that right? A. Yes. You saw he has been making notes since at least last November or maybe before of all these things? A. Yes. Were you making any such kind of notes? A. No. step down. MR. ANDREWS: MR. GRIFFIE: THE COURT: No further questions. Nothing further. I have no questions. Thank you. -66- 121 You may MR. GRIFFIE: Your Honor, the second short witness we have is Joanne Sto~er, Mr. Stoner's mother. I don't know if she would have the same testimony whether we can save some time. THE COURT: MR. GRIFFIE: Whereupon, You can have her come up. Call Joanne Stoner. JOANNE STONER having been duly sworn, according to law, testified as follows: DIRECT EXAMINATION BY MR. GRIFFIE: Mrs. Stoner, please state your name and your current address? A. Q. A. Q. A. Q. A. Joanne Stoner, 70 Meadowbrook Road, Carlisle, Pennsylvania. And how are you related to the parties in this action? Edward is my son. Nicole is my granddaughter. Were you here for your son's testimony this morning? Yes. Could you hear most of his testimony? No, sir. Mr. Stoner testified that there were two incidents involving bruises on Nicole, one to the leg below the knee and one on the buttocks, that Nicole told him came from Lee Lehman from him kicking her. A. Yes, sir. -67- ~ Did you hear your daughter's testimony, Trudy, who just testified? A. No, I couldn't hear it. She likewise testified that she saw a bruise on Nicole's buttocks. Nicole pulled down her pants. MR. ANDREWS: I'd object as to what she said. This witness can say what she saw. If she didn't hear that, maybe all the better. MR. GRIFFIE: THE COURT: Withdraw the question. Sustain the objection. BY MR. GRIFFIE: ~ Did you ever have the opportunity over the past year to see bruise marks on Nicole? A. Yes, I did. ~ What did you see? A. One on her leg and one on her buttocks. ~ How did you come to see the one on her leg? How was it that you saw that? A. She came up and she said, "Look, Grandma." And I said, "My goodness, how did you do that?" She said, "Lee kicked me." ~ Did you say anything more to her after that? Did you question her about that? A. No, sir. ~ Do you recall when that incident occurred? A. About a month ago. I'm not positive. -68- ~ NOW the incident regarding the bruise on her buttocks, what happened when you got to see that bruise? How did that happen? ~. Practically the same thing. She just came up and dropped her little panties and she said, "Look at me, Grandma." And I said, "What did you do, fall down?" She said, "No, Lee kicked me." ~ Was your daughter Trudy there when that occurred? Was she present, do you recall? A. Yes. Was anyone else present when she showed you the mark on her leg? A. NO., Nicole and I. I think that was out at the trailer. Pretty sure this was in the trailer. ~ Out at Ed's trailer. So the time that would have occurred would have been while Ed was still living there? He was still at the trailer at the time those incidents occurred? A. Yes. Same question with respect to the mark on her buttocks. Did you question her about that or ask her anymore, was there any discussion? fall?" No. Ail I asked was, "How did it happen? Did you "No " She said, · She said, "Lee kicked me." You didn't make a fuss over that or say anything? No, sir. I left it drop. -69- MR. GRIFFIE: That's all the questions I have. CROSS EXAMINATION BY MR. ANDREWS: ~ Mrs. Stoner, you tell me if you can't hear me. I'll try and speak as loud as Mr. Griffie just did. You can hear me? A. Yes. You say two times were shown by Nicole bruises that she said were caused by kicks by Lee Lehman? A. That's what she told me. That's what she told you. And on neither occasions did you ask her any questions about it? A. Not other than how did it happen. When you heard the second time that Lee Lehman had kicked her and caused her a bruise, why didn't you ask her more about it? A. I didn't feel it was in my place to question the child. She's upset enough. Was she crying when she showed this to you? A, No, sir. You didn't ask any other questions? A. No, sir. Had you been told not to question the girl? A. No, sir. Do you know Lee Lehman? Yes, sir. I had him work on my furnace different times. -70- ~ But do you know what his relationship is or what his connection is with Betty Stoner and your two granddaughters? A. I did not know until everything started to come out in the open. I mean, yes, now I do. A year ago? Yes, sir~ A little more than a year ago. Is that right? Yes. Don't approve, do you? That's not for me to say, sir. Well, I'm asking, do you approve? That's very hard for me to answer because that's their life, not mine. ~ Either you approve of Lee Lehman having contact with your daughters or you don't. A. No, I don't. You don't? A. No. And you feel pretty strongly about that, don't you? If he was to lay a hand on her, yes. Something you talk about with your son, Edward? A. Pardon? You've talked to your son about this, haven't you? A. No, I haven't, not really. -71- Not really? I told him I saw the marks. What do you call Mrs. Stoner over here? refer to her? O. O. How do you How what? What do you call her? Betty. How about when she's not around and you're talking to the kids, what do you call her? A. Betty. Do you ever refer to her as "that bitch"? A. What? "That bitch". A. No, sir, I never have. Never have to the children? A. No, sir, I have never. MR. ANDREWS: No further questions. MR. GRIFFIE: Nothing further. No questions. You may step down. Your Honor, the next witness we call THE COURT: Thank you. MR. GRIFFIE: is Sally Rooney. Whereupon, SALLY ELIZABETH ROONEY having been duly sworn, according to law, testified as follows: -72- address. A. DIRECT EXAMINATION BY MR. GRIFFIE: Ms. Rooney, please state your name and your present Sally Elizabeth Rooney, 450 Ridge Road, Dillsburg, Pennsylvania. Ms. Rooney, how are you employed? A. I'm employed by the Helen Stevens Community Mental Health Center at Stevens Psychological Associates. And I also am employed by Dickinson College Counseling Center as well as have a private practice. And what is your profession? A. I'm a clinical psychologist. Did you bring a copy of your resume with you today? A. Yes. Certified as an expert clinical psychologist a year and a half ago. THE COURT: Any questions? MR. ANDREWS: No. Sally Rooney is a licensed psychologist, certainly has expertise to testify as a psychologist. I have a copy of her resume that satisfies me. THE COURT: Fine. MR. GRIFFIE: We're going to ask that her resume be admitted. That's the only copy we have. Be admitted as -73- Plaintiff's Exhibit 1. (Whereupon, Plaintiff's Exhibit No. 1 was marked for identification and admitted.) BY MR. GRIFFIE: ~ Ms. Rooney, following your testimony in the hearing on March '87, did you have ongoing contact with the members of the Stoner family? A. Yes. I saw Mr. Stoner and Stacy in therapy from April of 1987 to July of 1987. Following the court hearing of July 20th I was not involved with the family again until January 12th, 1988, when Mr. Stoner recontacted me. ~ When Mr. Stoner contacted you on January 12th, did he, at that point, ask for an appointment? ~. He called and said he was concerned about Nicole having difficulties with her mother and asked to set-up an appointment with me. Do you know when you then saw Nicole? A. Yes. I saw Nicole then for a first session on January 29th, 1988. In January 29th, 1988, did you talk to Mr. Stoner also? A. Yes. I spent sometime with Mr. Stoner by himself. Did he discuss with you at that point any type of impending litigation or plan to litigate the custody issue? A. No, he didn't. What was his concern? How did he express himself to -74- ? you as to what he expected you to do? A. He was concerned about difficulties that Nicole was talking about with her Mom as well as Lee Lehman and was asking for some help as to how to deal with her and how to help her. How to help Nicole? A. Yes. And then back on the 29th of January you also met with Nicole. Is that correct? That's correct. Did you see any difference in Nicole's character and possibly just from age from the last time you met with her in the spring of, winter and spring of '87 and now when you saw her in January '88, had she matured? A. Nicole had matured. She was much more verbal. She was much more able to talk about her feelings. When I met with her before she was not able,as easily able to express her feelings in words as she was when I saw her this past spring. Does she talk fairly, freely? A. She talks very freely. Have you been here for the testimony so far in this hearing today? A. Yes, I have. Did you hear Mr. Stoner's testimony about Nicole just bringing things up,basically making comments almost about anything out of corh~xt, just making comments about problems? -75- Yes, I did. Did you find any of that when you met with her? Well, clearly when she met with me it was not. I was with her only for forty-five minutes. While we were drawing pictures she was very easily able to talk and I did not have to ask her specific questions at times for her to tell me what was on her mind. So I do think that she brings things up very easily. You were drawing pictures~ She was drawing pictures? A. She was drawing pictures. Was this part of your analysis or therapy to have her draw pictures? A. Yes. I asked her to draw a picture of her family for me when I met with her. Is that something routine you do? Depending upon the child and if I want to find out more about what's going on in the current situation. I don't ask all children to do that. ~ On January 29th, 1988, did she draw a picture of her family for you? A. Yes, she did. Was that picture helpful to you in determining what Nicole's thoughts were at that point with respect-- A. Yes, it was very helpful. ~ Have you brought the picture with you today? A. Yes, I have. -76- ~ May I see that? Drawing, writing on green magic marker, whose is that? ~ Writing on green marker is mine in order for me to remember. The pen on the bottom right quadrant is me also written upside down. MR. GRIFFIE: Show Mr. Andrews the picture. Your Honor, I'd ask the picture be marked. (Whereupon, Plaintiff's Exhibit No. 2 was marked for identification and admitted.} BY MR. GRIFFIE: ~ Ms. Rooney, when you had the child, had Nicole draw the picture, did you give her any additional instructions other than to draw a picture of her family? A. No, I didn't. Either through your notes or throug~ your memory, do you know what she drew first or did you instruct her on what to draw first? A. I didn't instruct her at all on,hat to draw first and my writing in. green magic marker indicates what she drew first and my notes are my way of being able to remember what she did draw. What did she draw first? A. She drew a picture of Stacy first, her sister. Is there anything noteable about that picture that you referenced? -77- A. Stacy is colored in with three or four different magic marker colors. She has a big smile and curly hair and she drew her head and the top of her body. Besides Stacy she drew a picture of the house. I asked her whose house it was. She said, "Daddy's house." So this was the first figure she drew was Stacy. What was the second figure she drew? A. Second in the upper righthand quadrant was a head of her mother. And the head is drawn in green with purple magic marker hair. There's a huge round oval mouth with eight protruding teeth and the eyes are wide open. I asked her what her mother was doing and she said, "Mommy is screaming." And she said, "She's going to be mad." "Look at her teeth. She's screaming at me." ~ Did you pursue that any further at that point? A. No, I just let her keep on drawing. ~ What was the next thing she drew? A. The next figure she drew was her Dad in the bottom righthand quadrant. He's in bright magic marker, has a huge smile and she drew his entire figure. The next figure besides that is Nicole herself holding,with her arms outstretched. It looks like she's supposed to be holding hands with her Dad but she's holding hands a little bit above her Dad's arm. She drew her whole figure and she is smiling. The next figure she drew in the same quadrant was a picture of Sue who is smiling -78- /3 3 and in the same quadrant with she and her Dad. The bottom lefthand quadrant she drew two clouds 6n the ground to complete the picture. ~ While you were testifying you referred to the fact that she drew the entire body, the whole body for her father, I think Sue and for herself? A. Yes. ~ Does that have any significance as far as you're concerned? A. Only in comparing figures. Nicole, Daddy, Sue and Stacy are all very similar in terms of drawing the whole figure and smiling faces. The emphasis in taking an entire quarter quadrant of the picture of her Mom is that it's an entire face, at least a third of the face of which is a screaming mouth. So it's very apparent that what she's focusing in on in the figure is the wrath and the anger and the screaming rather than an entire figure smiling, the whole body position. ~ Did you discuss at any later point in the initial meeting with Nicole her mother screaming, her mother's arguing or why she would be mad at her? ~ I'll give you a quote. She said, "She's screaming at me. She's mad about me telling her to be quiet." ~ And this, if I understood you correctly , this was essentially the first thing you did or one of the first things you did to get started with her on the 29th of January? Is that correct? -79- Yes. And in your follow-up discussions, did. she present any additional statements or testimony to you or information to you about her circumstances with her mother? A. Yes. But first she talked about Lee. And I will give you some quotes as she talked. How did his name come up, if you can recall? A. She brought his name up in conversation of starting to interview of how are things going. What have you been doing? What has been happening, kind of thing. ~ And~hat did she say? ~ I'll just list you some quotes. "Lee pulls my hair." "Lee kicked me in the butt two times and I fell down. I wasn't going fast enough. Mom pulled me and swung me on the couch Lee says bad words about Daddy, dickhead, Dick Tracy, shit. He makes me upset. He kicked me on my leg. He was mad. Lee hit me on my butt. I want my Mom to get me up and not wear diapers." This was later on in the interview when we were talking about how things went when she went to bed, the fact that she was wetting the bed, that she wanted to not wear diapers and get up in the middle of the night and go. ~ Before we go further with that and get off of Lee Lehman with these quotes now. I assume she said other things in between the various quotes? -80- A. Yes. Did she say these things without prompting or without questioning? Were these just comments she made? ~ These were comments she made when I asked her how things were going. ~ Then she started in, you were indicating about the bed-wetting? A. Yes. Those were the comments that she made about the bed-wetting. ~ How does she feel about that in general? Did you discuss that with her? A. She's embarrassed about it. She didn't like it. I asked her if she was a sound sleeper. She said, "Yes." She said at Dad's house sh~.'s able to-- See, Sue gets her up to go to the bathroom and she feels good when she gets up in the morning and she'd dry. A couple of other quotes. She said, "Don't tell my Mom because she'll get mad. Don't tell her anything." She was concerned that I not tell her Mom how she was feeling, what she was saying and that her Mom would get angry at her. It was clear with a couple of the quotes, when she was talking about her feelings about Lee and how he kicked her and that Mom pulled me up and swung me on the couch, she was real clear feeling not very protected by her Mom. That, in fact, when she was, from her prospective, assaulted by Lee Lehman, she was, that her Mom was not coming to her rescue and she was feeling fairly -81- isolated. ~ Ms. Rooney, when you meet with a child such as this, do you routinely question them at the beginning to determine their understanding of truthfulness and should try and determine whether she understands the difference between a lie and a truth? A. That comes up in the interviews. This particular interview, I specifically did not ask that question. Nicole does know me because she had seen me previously in therapy and before when I had talked with her. We had talked about that. I did not specifically ask her at this interview about that. ~ What type of comments did she make about her father and sister and Sue, her second family? A. She made very positive comments about Stacy. She said that she wanted to live with Stacy. She said, "Dad is not mean like Lee." She talked about activities that they would do together. She was very positive about Sue. In the waiting room I observed very positive interaction between all four of them. Nicole was very close to Sue and there was hugging. There was a lot of touching and giggling and game playing. So, from a clinical standpoint, I'd say it was a very positive relationship between Nicole and Sue as well as with her father as well as with Stacy. ~ Did you note any change in the relationship between Stacy and Nicole from the last time you saw them prior to -82- the last hearing and now during the 1988 sessions? A. Nicole seemed like she wanted to be with Stacy more. She brought it up numerous times in the sessions. "I want to be with her." Nicole definitely has matured,is much more verbal so she's able to talk with her sister better than she was a year and a half ago. She's able to carry on a conversation better than she could a year and a half ago, so I would say that the relationship has definitely grown. ~ You mentioned that when Nicole was talking about her father's home she referred to them doing activities, different activities? A0 Yes. Did she refer to similar activities or other activities when she was with her Mom or the Mom's home? A. No. She talked about watching television at her Mom's house. She did not talk about anything that she and her Mom specifically did together. Whenever she talked about coloring or a game she would talk about that in the context of doing it at her Dad's house. She did spend-- She talked about her feelings of being over at Lee Lehman's house so much and said she disliked that. She didn't want to be at Lee Lehman's house as much, when I asked her. She talked about sleeping at Lee Lehman's house and sleeping at her Mom's house and didn't like sleeping at Lee Lehman's house. I asked her why would you rather stay and -83- I was asking her whether she'd rather stay at her Mom's house or Lee's house and she said at Daddy's house. I said, "No, stay at Lee's house or your Mom's house?" And she said, "I'd rather sleep at my Mom's house than Lee's house." ~ In your follow-up sessions with Nicole, was there other information presented by her or in contacts with her, Stacy, Sue or Ed, provided you any additional information? THE COURT: Maybe we ought to ask her first when the additional sessions were. ~ When were your follow-up sessions with these parties? A. February 26th, 1988, April 8th, 1988, May 6th, 1988. There are a total of four ~ssions. Did you meet with Nicole on each of these sessions? Yes, I did. Is there anything additional that she presented to you or information she gave you in her additional sessions that you wish to add concerning her feelings about-- A. For clarification, the April 8th sessions is where I have recorded the, "Lee kicked me on the butt two times and I fell down. I wasn't going too fast." So if you're looking for a time line on that, that is the session at which she told me that. That was between my February 26th session and my April 8th sessions. The April 8th sessions she talked a lot about the language being used, being called an asshole. Lee called her Dad names. And that's when she talked about the diaper issue. -84- The May 6th session there was a noted change in terms of her saying to me emphatically, "Don't tell Mom this." And, at this point, she was not explicitly saying to me, I definitely want to go stay with Dad, what she said to me was, Mom will cry if I leave her so I better live with Mom or she'll be upset. There was a definite change in what she was saying to me about how she was feeling. The previous three sessions to that she was clear about wanting to definitely be with Dad. And then there was a quality of, I can't do this to my Mom kind of message coming from her. ~ For the four sessions you indicated, you saw Mr. Stoner the first sessions, did you meet with him for periods during the next three sessions? A. Yes. I spent about ten minutes with him on each of those sessions and the rest of the time Nicole and a few minutes with Stacy. In the past you had met with Mr. Stoner as well? A. Yes. And being approximately a year and a half ago? A. Yes. Were you able to see any changes in his reactions and actions? A. Mr. Stoner had made some improvements in terms of his progress of emotionally detaching himself from his wife. When I met with him a year and a half ago it was very difficult -85- for him to imagine that the marriage might be breaking up. When I saw him in January he had much more come to grips with the fact the marriage was not going to be reconciled and was not as angry and bitter towards the break-up of the marriage and was not as bitter towards, uprightly angry at Lee Lehman. I think he has come to terms with the fact that Betty and Lee Lehman are together, whereas a year and a half ago he had not come to terms with that. ~ Does that play into his relationship with his children? In other words, his change over the last year and a half? Does it affect how he treats his children, raises his children, talks with them, etc.? A. Well, I think he's better able to deal with his kids and his anger won't come through to his kids. If he's worked through the anger then it's not going to feel so triangulating to the kids, they're not going to feel like they're in the middle so much. ~ I take from the testimony that back a year and a half ago that wasn't the case? Mr. Stoner was bringing his children, letting them feel his anger toward Betty? A. There was a great deal of anger a year and a half ago and I'm sure the children felt it. ~ I believe you testified that you got to meet with Stacy briefly on these occasions as well? A. Yes. -86- ~ Did you get to talk with her concerning her present relationship with her mother? A. Yes. She spoke ~bout the argument with Mom that you were trying to date and maybe I can clarify that for you also. Sorry. I need to find it in the notes to give you the exact date. It was my second session which was February 26th that Stacy-- Stacy reported to me that she had a fight with her mother three weeks ago and had not been back to see her since, so it would have been the beginning of February since she had seen her Mom. ~ Did she explain what happened in the argument or what it was over? A. As we talked I cannot recall the exact details of it but there was an issue where Mom had sent some flowers to her. She sent them back. She had had some arguments with her on the phone. She did talk about the church issue. It was not one specific issue, it was a culmination of some anger that made her decide that she did not want to visit her Mom anymore. ~ Did she indicate wh~her there had been previous arguments or fights with her and her mother? A. Yes. There have been previous fights but she has continued to go back and visit. ~ Did you have-- Did you come up with any problems or questions in Mr. Stoner's relationship with the children or -87- dealing with the children, anything he needed to address or avoid? A. No, I didn't get any indications from either of the kids that they had any problems in their relationship going on with their Dad. Do you recall if you asked them about that? A. Yes, I asked them how things were going for Stacy when she was with her Dad and also the time and how things were going with Nicole when she was there on weekends and on Wednesdays. ~ Through your past experience, as well as, these sessions that you had in 1988 with the children and Mr. Stoner, do you have an opinion as to where Nicole should live from the clinical psychologist prospective? MR. ANDREWS: Objection. THE COURT: Sustain the objection. That's my decision to make, not hers. A. I can give you my clinical impressions. THE COURT: I'll sustain the objection to that question. ~ What is your impression, your clinical impression with respect to Nicole's relationship with her mother and Lee Lehman? A. My clinical impression is that Nicole continues to be unhappy a great deal of the time when she's with her Mom, that the relationship between Nicole and Lee Lehman is very unhealthy and very negative. Nicole does have a lot of love for -88- her Mom and a lot of loyalty to her, which, as I said, at the last sessions I saw her come through as far as always wanting to protect her Mom. She presents a very heal~ and happy clinical picture of when she is with her Dad on the weekends and with her sister. MR. GRIFFIE: That's all the questions I have. CROSS EXAMINATION BY MR. ANDREWS: ~ Ms. Rooney, you first became involved with this family back in late 1986 and early 1987. Is that correct? A. January 21, 1987. And that was you were introduced to this family by Mr. Stoner, were you not? Isn't he the one that contacted you? A. I believe so. Let me check. Yes. ~ He retained your services at that time? A. Yes. ~ To do a parent-child evaluation? A. Yes. ~ For purposes of litigating a custody action? A. Correct. ~ At that time in order to do that evaluation you met with both parents and both children? A. Yes. I said that I wouldn't get involved unless I had the cooperation of both parents. -89- Without it would you not get involved? That's correct. That's standard operating procedure, is it not? For me it is. And part of that standard operating procedure is to see each of the children interrelate with each of the parents? A. Yes. Correct? A. Yes. And you don't typically just do half of an evaluation where you only see a child or two children relate with one parent? A. That's correct. Would it also be part of your normal standard operating procedure to even have the child brought to your office by different parents? A. Yes, if that's logistically possible. Q. That's preferred, is it not? A. Yes. On one visit to be brought there if they're on visitation or partial custody by Mom and on another occasion by Dad? A. Right. ~ The reason for that is so you can determine if there's any influence by the contact with the person bringing them to the interview? A. Yes. -90- Am I correct? Yes. When you do evaluations like this which involve extensive interviewing with young children, what do you tell the children so far as the confidentiality of what they're telling you? A. Well, it depends upon the age of the child. When I talk about confidentiality with ten, eleven, twelve, thirteen, up through teenagers, we talk about-- ~ You don't promise them that what they tell you is confidential, do you? A. I talk about that, what we talk about, if I do an evaluation, I may need to write in a report and it may come out. There are times that kids will tell me, I don't want you to say this to anybody. ~ And do you say to them, well, in that case I won't say or do you say,then, I'm sorry, I've got to? A. It depends upon the issue and it depends upon what we're talking about. I make it clear to them if there's any life-threatening circumstances or those kinds of things that confidentiality will be waived. ~ In particular with Nicole, you didn't make any promise to Nicole that anything she said would be kept confidential, did you? A. When she asked me not to tell her Mom what she was saying, I didn't specifically tell her that I would not tell -91- concerns. her Mom. ~ So you didn't make any promises to her that her Mom wouldn't be told? A. That's right. You couldn't because you were likely to be here telling exactly what Ni¢ole had told you? A. Well, I didn't know that in January. I didn't get involved in February. I didn't get involved as a custody evaluator in February. I got involved as a therapist in February. ~ When did you first share any of your concerns or any preliminary, even verbal reports with Mr. Stoner? In 1988, you are referring to? Yes. I'm not quite sure what you mean about any of my I'll be a little more specific. day in January. And I'll look for the date. maybe. A. A. Mr. Stoner and say,"Look at these pictures. I'm concerned here too."? On that very first January 29th, Your first meeting. Yes. You had Nicole draw these pictures? Yes. After you had met with Nicole, did you meet with You're right. -92- / A. No, I did not do that. I didn't show him a picture. I said to him, "Let's schedule another appointment and see how things go." ~ Did you tell him why you thought another appointment was needed? A. He was asking me for help for therapy and I said, "Yes, we'll schedule another appointment." ~ Did you relate to him any of the reports that Nicole had related to you? A. No, I didn't. ~ When did you first do so? A. Probably, well, after the April 8th sessions I told him that I was concerned and that we would schedule another appointment in May. And at that point I said that if he ended up in court that I would be glad to testify as to my findings, particularly in reference to the drawing that Nicole had made. ~ Now, you indicated that your standard operating procedure, you don't get involved unless both parents cooperate. A. In a custody evaluation. This was not a custody evaluation. This was therapy. ~ Did you ever inquire of Mr. Stoner whether Mrs. Stoner was willing to participate in this evaluation? A. No, I didn't because Nicole had specifically said to me, "Don't tell Mom," which indicated to me that she already knew and she was very negative about it. In addition -93- to that, Mrs. Stoner has never gotten back in touch with me and never paid on her old custody evaluation bills and has not from my prospective, has a very :negative attitude towards me. You were sending her bills she wasn't paying? Yes. Are you sending Mr. Stoner bills? Mr. Stoner pays when he comes. Does this go back to the evaluation you did back in 19877 A. Q. A. Yes. That's what those bills are for? Yes. Now your recommendation at that time was that both these kids be with father. Right? A. No. I didn't specifically say they should be with Dad. I said that-- You can read the recommendation. I have. It says wherever they end up living they need continued A. therapy. Q. A. You have your recommendation here? Stacy and Nicole would suffer the least emotional damage by staying with their father. ~ Isn't that a recommendation that they be with their father? -94- A. That's a clinical impresssion. This was hashed out at a hearing back in March of 1987, was it not? '877 Yes. You had a chance to testify at that hearing? Yes. Did you not also testify again in the Summer of A. No. You were here to testify? A. No. My memory is fa~ing me. All right. Was it not communicated to you that Mrs. Stoner did not want to counsel with you particularly? A. No, not specifically by anyone. I had recommended in my recommendation that they continue in therapy. Mr. Stoner brought Stacy for therapy. Mrs. Stoner did not bring Nicole for therapy. ~ Mr. Stoner never explained to you that Mrs. Stoner will not come to you? A. No, he did not say that to me. I assumed by her lack of contact with me that she was not interested in coming to see me. ~ The pictures that you have here you've marked as an exhibit. They're all taped together? A. Yes. -95- Were they taped together before Nicole wrote on this? Well, first of all you mean, drew on it? Drew on it. The writing is my writing. Correct? Yes. We took-- I ran out of big construction paper We made a big piece because so we taped them together. she wanted to draw a big picture. ~ And this was the first time she'd come to you on January 29th. Is that right? A. That's right. Did you establish with Nicole on January 29th whether she had any forewarning that she was going to be coming to see you? A. No, I didn't. Did you establish with Nicole, do you understand why you're here? A. I think I said something like, "Your Dad gave me a call because he felt that there were some problems going on." And I just stated it like that. That's how I usually state it if parents make the decision to bring their kids. ~ And that would have been before you had her draw the pictures? A. Yes. You said you g~t into talking to her about Mom being angry about her being there. Is that right? -96- me ?" quadrant? A. Q. About her Mom being angry about her saying things or being there giving reports? A. No, not at that point,that discussion did not take place then. Didn't take place then? No, that was later sessions. So then you gave her this large piece of paper? We taped it together. You taped it together. And what did you ask her to do? I said, "Can you draw a picture of your family for Did you ask her to put a different figure in each No. Did you talk to her about each quadrant as she completed it or did you indicate until the whole thing was completed? A. No. We talked as she was drawing. So as she was drawing this you were talking to her about what she was doing? A. I said, "Who is this?" And she said, "It's Stacy." And I said, "What is this?" And she said, "Daddy's house." And I said, "Who is this?" And she said, "That's Mommy." We talked about the pictures as she drew it. ~ Did you ask her any questions about what her Dad had said to her on the way over to your place? -97- A. No. You didn't make any effort to find out what she'd bem~ld, anything at all separate from what you told her? A. She was very glad to see me. If I find animosity in a child I might question them about what happened on the way over. She was very glad to see me and didn't seem to need any of those issues dealt with. ~ Did you ever talk to her to know from her whether she had any feelings about whether she'd be in trouble with her mother for talking to you? ~. Yes. In that third session when she brought that up she said, "Mom is going to be mad at me. Don't tell my Mom or she'll get mad." I said, "Well, I'm not going to call your Mom." That was her concern was that I might pick up the phone and get in touch with her Mom and tell her what she said. ~ Assuming you had had no prior contact with this family, what tests would be appropriate for you to conduct with a six year old such as Nicole to determine if she were well-adjusted or not well-adjusted if there was any kind of a personality disorder or emotional disorder or mental disorder developing? A. Well, the first thing I would do would be to start with a clinical interview and based on that clinical interview would be able to determine for instance whether she was of average intelligence. If there was any question in my mind if -98- she were of average intelligence, I'd do an I.Q. test on her. If she seemed not to be able to talk in a way in which her thoughts were coherent, I might do a personality test on her such as T.A.T. with kids as young as six years old. A lot can be determined just by a clinical interview. How young can you administer the T.A.T.? A. You can go down to about certain cards and parts, you can go down to six and seven. It's not something that I would commonly do. ~ You saw no need to do that because Nicole had no problems talking in a way that made sense? A. Right. She was very coherent and she was obviously of average intelligence. ~ She showed no signs of emotional disturbance, did she? A. She showed a lot of emotional disturbance on January 29th when I first saw her. She was very, very upset and angry and distraught. ~ This is when she had been picked up from visitation by her Dad and just instead of going back to Dad's house had been brought by Dad to your office. Is that right? A. Yes. And so far as you know nothing had been told to her that that's what was going to occur , so far as you know? A. Are you referring to coming to my office or going to occur? -99- Yes, coming to your office. Yes, I didn't know that. So far as you know she knew her mother would not approve of her coming to your office? Ao I didn't know that at that point and I don't know if she knew it at that point. The point is you don't know one way or the other, do you? Q. Whether she would be upset if her Mom knew? Whether she believed her mother would be upset at her setting there in your office talking to you? A. Yes. I don't believe she was the first time because she didn't say it. She did say it by the third session. ~ Did you ever obtain any records from the kindergarten where Nicole was attending school or attending kindergarten to see how her adjustment and development were there? A. No. As I said, I wasn't seeing her for an evaluation, I was seeing her for therapy. For therapy. ~at therapy did you administer? A. Well, we talked about how to deal with her anger. We talked about what to do, how to get help, how to deal with Lee if he would come after her, how she could ask for help. ~ If he would come after her how? Sorry? -100- If Lee would come after her how? Physically. In what way? Well, she said that he pulled her hair so we talked about what, to do if he were to do that again or if she were to be hit again. How she could ask for hopefully her Mom for some help. And I reassured her that it wouldn't keep on going. ~ Why? A. Because it is not possible for kids to know that it's not okay for them to be beaten. Did you tell her her Dad was going to do something about it? A. Q. A. her. Q. NO, I said that adults in her life could help her. If only she would tell them what they needed to know? If she got hurt she would get help, is what I told Now there has been talk here about a kick on the butt and a kick on the leg. I think you've made reference to two kicks on the butt. Has there been any__ Was there any talk during any of this therapy about indecent touching? A. I did ask her if she'd ever been touched. You didn't wait for her to make that report, you made that specific question? A. I do ask kids that particularly in reference to the fact that that was a previous concern of mine with this was bad. relationship with Lee Lehman. ~ So you felt you better ask the kid if that's going on and what did she tell you? She said she had not been touched in a way that Did you, nevertheless, talk to her about what she should do if that ever were to happen? A. Yes, I talked to her about that before. ~ Even though there was no report from her it was happening? A. Right. I talked about that a lot with kids. It's an educational procedure. ~ You talked about Mr. Stoner's anger when you first became involved with this family. Is that right? A. Yes. He really vilifies Lee Lehman or he did at that point in time, did he not? A. progress on it. Q. He has made progress. Mrs. Stoner owes to her bill? A. Yes. He had a lot of anger toward Lee Lehman then. Are you saying that anger is now gone? It is not completely gone. He has made a lot of Do you know offhand how much I don't know off--not offhand. ~ When Stacy explained to you why she had nothing more, did not want to have anything more to do with her mother, did the reasons sound substantial to you? A. She was pretty angry at her Mom. Basically for not relating to her, it sounds like. ~ And for that she said she didn't want to see her mother anymore? ~. She said she didn't want to go visit her Mom. A lot had to do with the fact that her perception has not changed, that her Mom is more interested in Lee Lehman than ~ she is in her. Although a year has passed, not much progress has been made on her Mom and her's relationship together. ~ Are you familiar with a syndrome that has been identified by a Dr. Richard A. Gardner, who's a psychiatrist, at Columbia University, called the parent-alienation syndrome? A. Yes. Wouldn't you say that that, in fact, appears to be what is going on in this instance between Stacy and her mother? A. Not unless-- Stacy has become caught up in a system of thought where there's one loved parent and one hated parent? A. I think Stacy would very much respond to some love from her Mom. ~ Have you ever talked to Stacy about any of her Mom's positive attributes? -103- A. Yes. We've talked about positive things that they've done together. ~ Not what they've done together. I'm talking positive things about Mom. Does Stacy recognize any, has she ever said to you that there are any? A. I haven't specifically asked her that. ~ Does she not carry on about all the negative things about Mom? A. She does but she's able to tell me,she was able to tell me about some up times that had happened since I had seen her a year ago. ~ I'm not talking about events. I'm talking about personality characteristics of her mother. Is she not entirely negative about h~mother and her mother's behavior? No. I don't see her as entirely negative. Just predominantly negative? A. Yes and it's behavior. You're mixing personality attributes and behavior. She does love h~ Mom and I think she would really respond to a positive relationship with her Mom. MR. ANDREWS: No further questions. THE COURT: Mr. Griffie, any additional questions? MR. GRIFFIE: Just one brief follow-up. REDIRECT EXAMINATION BY MR. GRIFFIE: ~ In your discussions with Nicole about being able to -104- report abuse or problems like that, w~ther it be from Lee Lehman or whoever did, were you able to determine whether she feels comfortable in reporting problems to her mother? A. I didn't address that in these sessions. That was something that I addressed previously. MR. GRIFFIE: Nothing further. May 6th? Q. MR. ANDREWS: Nothing. BY THE COURT: Do you know why there were no further visits after Between? You and Nicole. Yes. At that point, I said to Mr. Stoner, at that point, he was talking about filing a petition and I said, "Okay. Go ahead and file your petition." .lAnd then they were moving in June and then we hit the summer. And I was waiting to hear if he was going to end up in court or what he was doing. So part of it had to do with the timing of everything. I did not reschedule them. ~ You've heard the testimony that Stacy hasn't visited her mother since around February. If this is permitted to continue, will this on a long term basis have any adverse effects on Stacy, so when she hits eighteen, ni~? ~ Yes. She definitely should get back into some kind of ongoing relationship with her Mom. -105- ~ And at that time, this point, the way things are, do you believe that some kind of counseling is necessary to get that back together again, or is this something that the mother and Stacy can work out themselves? A. It may need a counselor. If there were some motivation on Mom's part to work it out, then maybe it could. THE COURT: anything else? MR. GRIFFIE: THE COURT: MR. ANDREWS: MR. GRIFFIE: I think that's all I have. Mr. Griffie, Nothing further. Mr. Andrews, anything else? No, your Honor. Your Honor, we have one more witness. May Ms. Rooney be excused? MR. ANDREWS: Whereupon, No objection. SUSAN NAYLOR having been duly sworn, according to law, testified as follows: DIRECT EXAMINATION BY MR. GRIFFIE: Ms. Naylor, please state your name and your current address? A. Q. A. Q. Susan Naylor, R.D.1, Box 16 Shermansdale. How do you spell your last name? N-a-y-l-o-r. Is it correct, as Mr. Stoner testified, that you and he and his daughter Stacy reside at that address? -106- Yes. Who owns that home? I do. When did you purchase the home? We were building it. It was in '84 and I moved in in October. Of 19847 A. Yes. How old are you? A. Thirty-one. Is anyone assisting you in your purchasing this home or paying for this home? A. No, just myself. ~ Where are you employed? ~. Kinney Service Corporation in Shiremanstown. ~ How long have you been employed there? ~ Nine and a half years. I work part-time jobs too but now I'm just working down at Kinney§. ~ What are your hours at Kinney's? A. 6:45 to 3. ~ So when do you normally leave in the morning? A. About twenty of six. ~ Ms. Naylor, what's your educational background? Where did you graduate from high school? A. Yes, West Perry. -107- ~ And there was testimony previously you've never been married. Is that correct? A. A. a relationship sometime last year, last summer or fall. you recall when you developed your personal relationship with Mr. Stoner? A. It was before last June when I had moved in and Stacy got out of school. It was a few months, about a month or No, never been married. And you have no children of your own? No children. Mr. Stoner testified that he and you started having Do I'd like to know when they started to so before that. THE COURT: live together. A. A. When did you start living together? In June after Stacy got out of school last year. And where did you live at that point? At Ed's place, the trailer. BY MR. ANDREWS: So I'm sure the record is clear, we're talking Do you still about June of '87? A. Yes. BY MR. GRIFFIE: ~ Did you understand, at that time? -108- understand that Mr. Stoner is not divorced from Mrs. Stoner? A. Yes. County? A. When did you move over to your home in Perry In June after Stacy got out of school. June of '88? '88, yes. But it was about a year then you had lived together with Mr. Stoner? A. Yes. So you maintain the two of you maintained two homes for about a year? A. Yes. I take it since that's your home you're normally present whenever Mr. Stoner has Nicole for a weekend visit? A. Yes. And does that occur every other weekend? Does that weekend visitation occur ever other week~nd? A. That we're there. Then Nicole is with you and Mr. Stoner? Yes. when you see Ed and Nicole together? do they interact? Ms. Naylor, what type of relationship do you see What do they do and how -109- relationship. A. O. together. They play together, father and daughter Does he do things with her? Yes. What type of things? They take walks together. They play and put puzzles She goes down and gets them and Dad puts puzzles together with me and he does crayon. ~ Do you likewise do things with Nicole? A. Yes. ~ Are they similar type of things? A. Well, some are. And you sit down and put paper flowers together, get macaronies and make pictures with them and play house. ~ You take time to play with Nicole when she's there as well? A. Yes. Does Stacy take time for Nicole when she's over for the weekend? A. Sometimes all together and sit down and play. Does Nciole have someone's attention every minute that she's there? In other words, is someone always there with her? A. Somebody is always there but she likes to play with her little friends up the street too, Trish and Chaz, when they're there. -110- What are the children's names? A. Trisha and Chaz and I'm not sure if their last name is Straining or not. The grandmother they live with, her last name is Straining. They live with the grandmother? A. Yes. Are thereother children in the neighborhood Nicole plays with? A. Yes. Up the other street it's Tzudy and Jessica and I'm not sure of their last names. Do you know the approximate ages of these children? A. They range from about four to six. So right around Nicole's age. Is that correct? Yes. Trisha is the same age as Nicole. Do these children come down and play at your place also? A. Q. Yes, and Nicole goes up there. Mr. Stonerindicated in his testimony that when you first get Nicole she's, I think he has described it as, seems to him she's starving for attention. She wants to do things. Do you see that sort of characteristic in her when you first pick her up? ~. Always going for something to do right away. We've got to get there and get settled in a little bit and then go do it. ~ With respect to the problems that Mr. Stoner pointed out, he indicated that Nicole had a bruise on her leg and buttocks, that Nicole said was caused by Lee Lehman, did you have any conversation with Nicole about that? A. No. I seen them there but I didn't talk to her abou~ them. Did she say, in your presence, how she got them? A. She told me, she pointed down to her leg below the knee there that Lee had kicked her. ~ Can you recall how you reacted, what you said to her, if anything? A. She was, more or less, directed to her Dad when she said this, but I was there and overheard it. ~ Do you recall what he said or did when she pointed that out? A. He said, "Oh, he did?" ~ Did he ask why or anything like that? A. I'm not sure if he did or not. ~ With respect to the cut lip that Mr. Stoner testified to that Nicole had a cut lip, said her Mom hit her. Were you present when she said that? A. Yes. ~ Did she have a cut lip? A. Yes. She pulled her lip down and said, "Mom hit me." ~ Once again, after that statement was made, do you recall what was said by you or Mr. Stoner to her? A. I think he had asked her why it had happened and she just-- I don't know. It's like she is punished but she doesn't know why. ~ Do you recall any futher discussion or investigation or questioning from Mr. Stoner about that problem? A. No. When you've been there for these reports from Nicole, do you see any different reaction of Mr. Stoner than when she tells him anything, tells him any kind of story or statement? A. He'll listen to what she's telling him and if it's important he feels either when she's out playing or whatever then he'll write these things down. ~ But as far as ~rher, I mean, does he treat that as if she would say, "Hey, Dad, I rode my bike down the street today."? A. He does now. He didn't believe he'd get really upset. ~ Used to? A. Last year. ~ So you've seen a change in him in that respect? A. Yes, I have. ~ When did you start seeing that change in his reaction to the children's reports of problems? A0 It was around Christmas. -113- ~ Have you ever seen or heard Mr. Stoner downgrading and talking against Mrs. Stoner in front of either Stacy or Nicole? ~. No. He has called her Mom or Betty but he has never called her names, never heard him call her names. ~ How about just talking about anything bad that the mother is bad or is doing something wrong or anything like that? A. He may say maybe he didn't feel that was right what was done but to say anything really bad, no. ~ Were you present when he talked to Stacy about going back in to visit her Mom? A. No, I wasn't. Were you present the first time Stacy indicated she wasn't going to visit Mom anymore? A. I don't remember that one. The second I do remember because I was along with Ed to pick her up. ~ But Mr. Stoner was the one to speak on the phone to Stacy. Is that correct? ~. Yes. ~ How about the testimony M~. Stone~ave us about some things that Nicole says about Lee Lehman that he calls Ed names and apparently calls her names. Did Nicole ever tell you that or did you hear her tell Mr. Stoner that? -114- A. I hear a lot of that while they're talking, telling her Dad. Sometimes she does tell me if I'm on the way to drop her off, she'll tell me things. ~ Does she bring up these types of things just out of the clear blue? A. She seems to just, when she'S doing something in the middle of it, she'll just tell you. I don't have to ask. be? How do you get along with Stacy? We get along good. What do you consider your rel&tionship with her to A. We have a good relationship. We do things toge%her, go on the three-wheeler for rid~, some kinds of stuff she likes to do. ~ Have you ever had discussions with Nicole or Stacy about their mother? A. No, I haven't. I just try to be there for them. Over the past year have you seen the relationship between Stacy and Nicole change? A. They seem to play a lot more than they used to together because they only have those three days within the two weeks time to be together. ~ Ms. Naylor, when you go to pick ~up Nicole and she hops in the car, what is the first thing that's said or done normally? -115- A. I ask what she has done at school or go swimming, lately, things like that there. And I feel if she wants to tell me something she'll come out and tell me, I won't have to ask. ~ Have you been in the car with Mr. Stoner when you picked up Nicole? A. Yes. What does he say to her when she gets in the car? A. "How was your day?", or just things like that there. Have you ever heard him question Nicole about what her mother does or what Lee does or what the two of them do to her? ~. I don't have to question her, she'll tell you. ~ So if there's something on her mind she just talks? A. Comes out and tells you. ~ Have you had occasion to see Mr. Stoner correct or punish both the children? ~ Yes. ~ How does he do that? How does he correct them? A. Well, Stacy just like we would restrict her from doing something for a period of time and Nicole would send her to her room and on one occasion he did spank her. ~ And there has been testimony from several people that you ap~ently get up during the night when Nicole is there and take her to the bathroom several times. -116- A. Yes, I do. Does she ever talk to you about you doing that versus wearing diapers at home? A. Yes, she has. ~ What does she say? A. She's embarrassed of wearing diapers at home because her friends are there and they see her in diapers and she's very embarrassed. But when she's with us I take her to the bathroom at night and she feels really good about herself in the morning because she's dry. ~ Ms. Naylor, back last summer of '87, when you were living at the trailer with Mr. Stoner and Stacy, were you present when there were any incidents where Nicole was not allowed to come in or come down and play with Stacy? A. Yes, I was there one time. THE COURT: I'm not following you now. You mean when he was supposed to have Nicole for a visit over the weekend that her mother refused to let her come down? MR. GRIFFIE: No, additional times. THE COURT: MR. GRIFFIE: MR. ANDREWS: Not on a regular visit? No. Objection, your Honor. THE COURT: Would you ask the question again. MR. GRIFFIE: Maybe I can rephrase the question and avoid the objection. -117- BY MR. GRIFFIE: ~ Ms. Naylor, is it correct that Mr. Stoner's father and his wife live nextdoor or just up from Mr. Stoner's trailer? A. mother. A. A. Yes. And Mr. Stoner's father is married to Mrs. Stoner's Is that correct? Yes. And what is that Mn~ Stoner's name? Shirley. Have there been occasions when you are aware that Shirley is babysitting or keeping Nicole up at her residence? A. Yes. During last summer were you aware of that occurring? A. Yes. BY THE COURT: Was this before you moved in? A. This was while I was at the trailer. BY MR. GRIFFIE: ~ Did you ever evidence any episodes where Stacy or Nicole would be at her grandmother's and Stacy and Nicole would try to be together and that would be prohibited? A. They would holler at each other and Nicole was up around the pool and Stacy went up and brought her down and Shirley was out front mowing and it was a little while before -118- she realized she was missing. And I had the two confused. This was one incident. And there was another one where Nicole wanted to come down and see us or see Stacy and her Dad and she was drug back up over the hill crying and bawling because she wanted to be with us even if it was just for a few minutes. This was just for visits with Stacy or with her Dad? A. No, it wasn~t regular visitation, it was just she was just up there and wanted to come down to visit. And Shirley Stoner would not permit it? A. Right. MR. GRIFFIE: That is all the questions I have. THE COURT: Cross examination. CROSS EXAMINATION BY MR. ANDREWS: ~ I guess Shirley Stoner had to answer to Mrs. Stoner on that point, who is Edward's father. Is that right? Do I understand you correctly? A. Would you run that by me again? The grandmother that dragged Nicole up to her house, wouldn't let her visit at your place, is married to Edward's father? A. Right. ~ I guess that has to get sorted out within ~hat household, don't you agree? -119- A. It's complicated. You said that Nicole told you she didn't like wearing the diapers because she wets her bed because her friends are around. Is that what she told you? A. She told me she's embarrassed of having a diaper on when her friends are around. She had friends over, told me she had friends over one night and she was embarrassed because Mom had to put a diaper on her. Said she had friends over for a sleep-over? A. What she told me. You get up once or twice every night to make sure Nicole wakes up and gets to the bathroom? A. Yes, I do. And you do that three days every two weeks? A. Two days because Wednesday we have to take her back at eight o'clock. Two days every two weeks. A. Yes. to do it everyday of the week? said? A. Is ithat right? And I guess what you're saying is you'd be prepared If I have to I would. You moved in with Edward in June of '87, is what you Yes. -120- ~ Since that time the only real changes that have taken place~within the two households are the fact that you and he have moved to Perry County and the fact that Stacy is no longer coming down to see Mom every other weekend? A. Changes so far. ~ Though you're not married, you're very committed to Edward? A. Yes. ~ You love him? A. Yes. ~ You know he l~ves his children? A. Yes, he does. ~ You've witnessed his unhappiness at not having both kids with him? him. Yes. For how long have you witnessed that? As long as they were taken from him. And how does he show that? He shows with his affection when they are there with How does he show his unhappiness about the situation? A. He tries not to show that because that would show with the kids. He doesn't show it in anyway? A. Well, if he gets upset he kind of walks away. -121- ~ Does he tell you how unhappy he is that he doesn't have Nicole in his household? A. He wants her with us but he can't do anything. ~ How long has he been saying he wants her with you? A. For a long time. ~ Ever since you've ever known him he has been separated from Betty, isn't that correct? A. Well,he always wants his children together. ~ What arrangements have you contemplated making for getting Nicole to school when you leave at 5:40 in the morning and Edward doesn't get back until 8:30 in the morning? A. Our neighbor Nancy Straining has offered to watch Nicole, either drop her off in the morning because she takes her children also down to meet the bus and they would get on the bus. ~ If~Du dropped her off you'd be dropping her off at around 5:40? A. About that. ~ Which means you'd have to get Nicole up at about what time? A. Well, probably not much before that if she's ready from the night before with her bath and everything and she could go up there and get a bite to eat and lay down and rest. MR. ANDREWS: No further questions. Thank you. THE COURT: Anything else? REDIRECT EXAMINATION -122- BY MR. GRIFFIE: Q. Ms. Naylor, did Nicole ever talk to you or complain about you having to get up too early when she's with her Mom? A. Yes, she has. Q. And can you explain to the court what that involved or what she said? A. Well, she had spent the night at least and she had to get up early the next morning and said she was still tired, she hadn't had enough sleep. Q. Can Nicole tell time? A. No, not that I know of. Q. So can I assume you weren't able to tell what time she had to get up but just too early for her, she said? A. Yes. RECROSS EXAMINATION BY MR. ANDREWS: Q. Is that another one of the negative reports Nicole volunteers or did that come in response to some questions? A. No. She said she was tired and we asked her why. Q. You don't know whether that was before five o'clock in the morning or after five o'clock she was complaining about getting up? A. No, I don't know what time it was. Q. And you don't know whether this was occurring every school day? -123- Still was, still going to school or daycare. not sure. Q. MR. ANDREWS: MR. GRIFFIE: BY THE COURT: No further questions. Nothing further. ~ What's the distance from your house where you live now to where Betty Stoner lives? Do you know what that is? ~. About half an hour. I'm not sure, twenty-five miles maybe. We travel that to pick Nicole up. THE COURT: Nothing else. MR. ANDREWS: We'd be prepared~'to stipulate that's a distance of approximately twelve miles, your Honor, between the two homes. MR. GRIFFIE: That's correct. MR. ANDREWS: Twenty-five miles two ways. BY THE COURT: ~ Did you say you have actually discussed with this neighbor lady about the possibility of bringing Nicole up there, if you got custody? I have talked to her but not in detail because we're Did you tell Ed Stoner you had discussed these arrangements with her? -124- A. I had talked to him just briefly about it. Must have been pretty brief, he didn't remember. THE COURT: I have nothing. MR. GRIFFIE: Nothing further. MR. ANDREWS: Nothing further. THE COURT: You may step down. MR. GRIFFIE: Your Honor, other than speaking to the children at the end of the hearing, we have no further witnesses to present. THE COURT: Mr. Andrews? MR. ANDREWS: I'd like to call out of order Mr. William Thomas, psychologist, so he can be released. Whereupon, WILLIAM THOMAS having been duly sworn, according to law, testified as follows: DIRECT EXAMINATION BY MR. ANDREWS: ~ State your name, please. A. William Thomas. ~ And Mr. Thomas, what is your occupation or profession? A. I'm a licensed psychologist. ~ And where do you practice? A. I have an independent private practice as well as I work for the Rehab Hospital for Special Services in Mechanicsburg. -125- And are you licensed? Yes, have been so since 1978. And whom are you licensed by? The Bureau Of Professional Occupational Affairs in Pennsylvania. Your education background? A. Bachelor's Degree-Master's Degree from Millersville. What is your Master's Degree in? A. Clinical Psychology. And what was your Bachelor's Degree in? A. Clinical Psychology. When did you obtain your Bachelor's Degree? A. In 1970. And your Master's Degree? A. 1974. How long have you been actively engaged in the profession of clinical psychology? A. Fourteen years. And, in the course of your work, do you do evaluations of individuals, adults and children? A. Yes, I do. MR. ANDREWS: psychologist. THE COURT: I would offer Mr. Thomas as a licensed Mr. Griffie, any questions? -126- CROSS EXAMINATION BY MR. GRIFFIE: ~ Mr. Thomas, how long have you worked for the Rehab Hospital in Mechanicsburg? A. Since 1981. And how long have you had your private practice? A. Since 1978. Prior to '81 were you employed as a clinical psychologist? A. I've been employed at the Loysville Youth Development Center in Perry County working with adolescents and children, also employed at the Helen Stevens Mental Health Center, been employed by the Adams County Courts for dOing~asSessments and evaluations. ~ Assessments and evaluations of? A. Children. Custody hearings, juvenile delinquents. ~ You've testified in custody cases before? A. Yes, I have. ~ Do you have an idea how often? A. I would say probably somewhere in the neighborhood of ten to fifteen, in that range. ~ Have they mostly been in Adams County? A. Yes, they have. MR. GRIFFIE: That is all the questions I have. THE COURT: Any objection to the offer to testify as an expert clinical psychologist? -127- MR. GRIFFIE: No objection. REDIRECT EXAMINATION BY MR. ANDREWS: ~ Mr. Thomas, when were you first contacted regarding your involvement in the matter that brings you here today? A. I was contacted by Mrs. Stoner to do an evaluation of Nicole. I was contacted, I guess it was, the 4th of August and made arrangements for to see Betty herself on the 8th of August. ~ And was that contact as you understood it, in preparation for today's proceedings? A. Yes, it was. And was it because Mrs. Stoner had become aware that there was likely to be a psychologist Sally Rooney testifying on behalf of Mr. Stoner at today,s proceeding? A. I don't think she made mention of that at the initial contact over the phone. She had indicated to me that she was looking to retain custody and that there was an impending litigation or court appearance and would I be willing and at that time to testify in that matter. And I said, "Yes,"I would. ~ Were you made aware Mr. Stoner was making claims that there was, there were difficulties arising in the relationship between Nicole and her mother Betty? Were you aware that this was for you to make an assessment with regard -128- to Nicole and that relationship? A. Yes. What did you do so far as making an evaluation or an assessment? A. I spoke with Mrs. Stoner first and we did. BY THE COURT: What date are you talking about now when you saw-- A. Mrs. Stoner was August 8th. In preparation of seeing Nicole, sPoke with her in regards to Nicole's mental history, her perception of the problem as well as background information before going into the assessment with Nicole. BY MR. ANDREWS: Had We even mailed you some background information? A. Yes, you did, which I received shortly thereafter. Had you already met with Mrs. Stoner before you received that information? A. Yes. Did thatinformation include the petition filed by Mr. Stoner through counsel to change this custody arrangement as well as our answer as well as the reports ~f Sally Rooney? Yes. Go ahead and describe what you did. OnCe 14th of August then after seeing Mrs. Stoner -129- I met with Nicole at which time I did an evaluation. That evaluation consisted of administration of some psychometric testing to include an intelligence test, a test of social maturity, some projective drawings as well as some projective types of measures such as the thematic apperception test. Is that the T.A.T. Sally Rooney was referring to? A. Yes. And that is a test you did administer? A. That's correct, as well as talking with Nicole during the process. Do you want me to discuss my findings? If you would, please. A. I found Nicole certainly to be a well-kept little girl who made a very favorable appearance and impression. She showed a little bit of hesitancy and reluctance upon not knowing what to make of the session but very easily then once just some friendly discussions occurred to open up and was quite open and frank. She was a polite young girl who showed an easiness in her relationship with me in its development. She eagerly participated in all<~of the activities and all of the testing that we had done;~ the results of which came out that she does have average intelligence. The intelligence test administered indicates she has an I.Q. of 100, which places her right smack dab on the mid-range. We did a social maturity, which gave her social quotient of 114, which tends to suggest there may be a little bit more of a higher level of maturation -130- -- than perhaps intelligence. The penalty in the intelligence came in that she did h~ve some difficulty with recognition of numbers and so forth whereas maturation-wise has more to do with their ability to divorce developmental milestops, things like self-help activities, communication abilities, and so forth. Did some projective drawings, thematic apperception test, which basically showed she was what I felt in my mind psychologically stable. There was no evidence to indicate from the testing that she was under any severe or emotional distress. Likewise, the clinical interview suggested that there was nothing out of the ordinary in terms of her inability to relate or her capacity to interact. ~ The clinical interview, did that give her an opportunity to express her feelings about the intra-family relationships and just about how things were going with her? A. Yes. We discussed some of her activities that weekend she shared with me. She had been recently with her father and discussed some of those things. We talked about her relationship with her sister Stacy. We talked a little bit about her relationship with her mother and also with her father, again, nothing in great detail because we were limited in regards to time. ~ Now, you've been here and heard Sally Rooney recount the reports that she received from Nicole about what she was complaining about in the way of treatment in her household. -131- A. That's correct. Did you receive any similar reports regarding Betty's household or Edward's household or anyplace else? A. None whatsoever. ~ How did Nicole get to your office? A. From Betty. ~ Betty brought her. Is that correct? A. That's correct. ~ The projective testing that you did, did any of that involve drawing? A. Yes, it did. ~ Did you see anything from the drawing to suggest to you that in~,your,~ProfessiOn&l~opinion any disturbance or undue emotional distress? A. No. The clinical impressions that were gained were ones in which as everybody has already eluded to is an emerging relationship with Stacy that became apparentibut again nothing that would indicate any mistreatment, would indicate any severe difficulties in communication with any member of the family. ~ Anything to indicate an alienation towards her mother or towards her father? A. The pictures that were drawn basically were all inclusive. She included everyone within her life, all significant others under the same abode. I asked her to draw -132- /?? a house and she included eve~ all her friends and dogs and so forth, her fantasy home in which everybody was going to reside and live. There was room for everybody in her life. ~ Did you obtain or have produced for you in anyway any of the records that show how she has adjusted and developed, kindergarten, at the daycare center? A. Only reports I have received through Mrs. Stoner herself. Did she just Verbally? A. Yes. I don't know, you've had a chance to see the one exhibit marked? A. Only from a distance. This may be very unfair. I don't know whether it makes any sense to you just having heard the description from the back of the courtroom. But do you feel you can draw any conclusions at all from those pictures? A. First of all, I have to--I would have to say that I would be somewhat cautionary in interpreting. Number one, I was not present at the time when she was. Sometimes there is more that is gained through watching or observing the child's effect of the drawing then the actual drawing itself. I also would not draw a great deal of inference from a single episode. Children tend to be very biased or very situational. -133- It's not a persuasive problem that exists but it may be something that transcended maybe a half an hour ago for which is still very much on the child's mind. So I would be hesitant to say that I would look more over time to see if there's a progression of things or validation of the same. Reoccurring? A. Reoccurring, yes, before making any assumption, clinical impression. ~ Was part of your evaluation also an evaluation of Betty Stoner and her relationship with Nicole? A. I observed the interaction that existed between Nicole and her mother during the time of the evaluation. I found it to be essentially unremarkable in the sense that there was any strain or any indication of distress Ghat was present. They were quite free in their interaction. They held hands regularly, touched, they fondled each other, again, looked~like a typical mother-daughter relationship free of any incumbrances. MR. ANDREWS: I have no further questions. Thank you, sir. RECROSS EXAMINATION BY MR. GRIFFIE: ~ Can you recall what Mrs. Stoner specifically requested when she first called you on August 4th, 19887 -134- A. She had requested that I form an evaluation of Nicole, her daughter, and indicated that she was preparing to go to court. That there had been a custody petition that had been filed against her and that she asked me if I would do a psychological assessment of Nicole. ~ What was Mrs. Stoner's perception of the problem? You've indicated she discussed the problem. What was her perception of the problem? A. Her perception of the problem was one in which she felt that her husband was very unsettled in the acceptance of her having custody of Nicole. She had indicated that over the time of the relationship it had been fraught with conflict and also mentioned that her relationship with the boyfriend for which he took exception to was the nature of the pursuance of the custody. ~ Even~hough you didn't have the opportunity to meet with Stacy, you were able to tell that Nicole and Stacy have a blossoming relationship or good relationship? A. I was able to tell in N±cole's eyes certainly Stacy is a central or significant other in her life. As we drew members of the family, Stacy was the first to be drawn. How long was Nicole actually in your office? One hour. And how long was she actually with you? -135- A. Forty-five minutes. You indicated that the picture that is lying in front of you and marked as Plaintiff's Exhibit No. 2, should be looked at cautiously because it may be a single episode? A. Yes. What if that drawing and that what caused that drawing was followed up over a five minute period of four more sessions where the same type of comments were being made by the child that drew that? A. Then I would certainly begin to look at it and take it certainly more seriously to see whether or not there was significant problems that existed. ~ Did you have the Opportunity to meet with Lee Lehman, the paramour of Mrs. Stoner? A. A. Currently? Had you met him-- Had you ever met him in the past? That's a confidential matter. And essentially your meeting about a week ago with Nicole, did not produce any major problems that she has in her life? A. I couldn't elicit any. Certainly could also make some interpretations she doesn't really fully understand the nature of all of this. She does not understand the nature of the court proceedings nor does she understand the relationship that exists between the people in her life. As I said, in -136- projective drawings that were done she included everyone. When I asked her what her understanding of coming to court was, it's for them to make a decision. I could not elaborate upon decision, just the court is going to make a decision, which indicates, I think, the naigety that's present. ~ Were you able to determine what type of perception the child had been given prior to coming to your office? What she expected when she came into your office? A. Did I quiz her in terms of? ~ Yes. A. Yes. She did say she was seeing me because of her going to court and that's how we got into, "Well, why do you think that is?", and "To help the court make a decision." So she had some understanding. MR. GRIFFIE: That's all the questions I have. MR. ANDREWS: I have no further questions. BY THE COURT: ~ You mean you saw Nicole only one time? A. That's correct. THE COURT: That's all I have. You may~ep down. I have another hearing. We'll have to come back at 3:00. (Court adjourned at 1:20 p.m. and reconvened at 4:05 p.m.) -137- MR. ANDREWS: I'd like to call Mr. Stoner to the stand to discuss some things in prospective. Whereupon, EDWARD L. STONER returned to the witness stand, having previously been sworn, testified as follows: DIRECT EXAMINATION(as on cross) BY MR. ANDREWS: Mr. Stoner, you're still under oath. A. Yes. You testified this morning about an incident where Nicole gave a report to you and you saw an injury to her lip. Is that correct? A. Yes, I did. Can you reconstruct when that report was given to you with any precision? A. Only according to my notes as far as what I have here today. ~ Are you able to say what month that report was made or can you say what day it was? A. I feel it was--the report was written in the November, December area. Sometime in November or December? A. Yes. And is that as precisely as you can reconstruct at this point in time sitting here in August? -138- A. On my notes. I have it dated November 21, okay. But I have notes like I say, at home, where I had gone back over and had organized the thoughts as best I could but things that were forgotten and so on. I kind of dropped them in which looking at these notes I know on the one there's a discrepanoy there as far as the 29th but maybe it was the 29th when I wrote this report. I can't exactly say, sir. ~ As best as you can say, it was sometime in November or December? A. Yes. Is that right? A. Yes. How many times did you see such an injury of a split lip or a cut lip, just one time? A. Yes, there was once. MR. ANDREWS: No further questions. Thank you. Nothing, your Honor. No questions. MR. GRIFFIE: THE COURT: Whereupon, BETTY J. STONER having been duly sworn, according to law, testified as follows: DIRECT EXAMINATION BY MR. ANDREWS: State your name. A. Betty Stoner. -139- ~ Edward's wife, mother of Stacy and Nicole? A. Yes. ~ You've been here for all these proceedings today and have heard whatever the Witnesses have had to say. Is that correct? A. Yes. I would like for you to describe to the Judge how your custody or visitation arrangement progressed with Stacy since the last time you were in this courtroom just about a year ago. A. Stacy would come in and she would accuse me of not being able to have any clothes because of the support checks her father was sending me. ~ Before we get to exactly what she was saying as of last summer, when you came to court here, there was an understanding with Mr. Stoner as to when you would see Stacy. Is that correct? A. A. A. A. every other Wednesday last summer through until the winter sometime? -140- Yes, there was. And what was that? It was every other weekend and every other Wednesday. The same as the visitation schedule for Nicole? Yes. Is that right? Yes. And did you see Stacy every other weekend and on Yes, I did. When did that stop? It was sometime in January. Now, go ahead and describe how your visits were with Stacy. A. They got to where they were unbearable. She would accuse me of being a liar and a cheat, that I hurt her father so bad it was like hearing a recording coming from him. These are things Stacy was saying to you? A. Yes. Now, was it that way all the way from last summer 1987 through January or was it that way at the end? A. No, it got-- It really got bad right, I'd say, right after Christmas. ~ There was an incident described by Mr. Stoner where Stacy called him when she was at your place over one weekend. Do you recall the incident? Yes, I do. Would you describe to the Judge what happened on that occasion? A. It was a Sunday and I took the girls to church and when I went to pick them up they didn't come out and didn't come out and the parking lot was almost empty. And finally her father came out with Nicole in his arms and Stacy beside him. -141- And she just kept standing there talking. And I was sitting there waiting and waiting. And finally Stacy and Nicole came and got in the car and I just asked her why she didn't come and why she left me sit there like that. It was humiliating to me because I had went there to church with the kids and everyone coming out and passing by me were saying, "Hi", and it was like I was some-- I don't know. I just felt very out of place there. Stacy laughed at me. This was funny to her. A. A. No, I haven't. ~ Why not? A. Just, like I said, it's too humiliating. to take Stacy to another church and she refused.., ~ What is it you find humiliating? A. I find it humiliating he would take his girlfriend to the same church that my children have attended and we're still married. ~ On that occasion now you said that you had words with Stacy in the parking lot or in the car? A. When she got in the car. Did you go back to your house? Is this a church you had previously attended yourself? Yes, Church Of God. Do you still attend that church? I offered -142- ? church. A. A. We went back to the house and it just got worse and worse until she was screaming at me. And I just said, "I'm calling your father." I said, "I can't take this. If our visits have to be like this it's not good for either one of us." I had called him to talk to him about this and he told me I deserved everything I was getting from her. Was that on that same day? It was the same day right after we came back from And that's what Mr. Stoner told you? Yes. You made reference, just a couple minutes ago, to something that Stacy had said about dress and a support check, something such as that? A. She accused me when she came in, she hardly ever had any clothes. She wou~d wear my clothes most of the time and she said that she couldn't have new shoes, new clothes because of her father having to send me this money for Nicole. Then I usually get my groceries out of the support checks and if I'd go to the store the weekend she was in there she'd get mad and tell me that was Nicole's money, I shouldn't have been spending it for groceries. This is something Stacy would say to you? A. Yes. -143- /?W ~ Did you find your visits with Stacy became difficult? A. Very difficult. That Sunday that you've now made reference to, when a phone call was made to Mr. Stoner, who made that phone call that resulted in him coming in? A. I called him. Was that the last visit you had with Stacy? A. Yes, it was. Aside from overnight visits, did you continue nevertheless to have contact with Stacy? A. Being I drive school bus I'd go over to talk to Stacy and in the ~fternoons at school and I've called her several times. ~ Mr. Stoner made reference to a time you called to try and have her go swimming, I believe. A. That was before I knew anything about this petition today and Stacy acted real excited about it and said, "Wait. I'll have to ask." It seemed like five minutes, I was just waiting, you know. And he came back to the phone and he said, "She doesn't think she wants to go with you." ~ Now you've made reference to driving the school bus. Is that your job? A. Yes. -144- That's during the school year, of course? Yes. You drive in the morning and you drive in the afternoon. Is that correct? A. Drive in the morning and then I have kindergarten and then I have two o'clock bus run too. And is that what you did last school year also? A. Yes. Did you have occasion to see Stacy during the course of performing those duties? A. Yes. ~ And did you talk to her? A. Yes. ~ When she wasn't at your house for an overnight, when you were seeing her in that setting, how did the two of you get along? A. I got along fine with her. ~ Now, regarding Nicole, Nicle has been with you now since, is it March of '87? A. Yes. ~ And she has been going on visits to her Dad on alternate Wednesdays and alternate weekends. Is that correct? A. Yes. ~ Have you ever interfered with Nicole going to visit -145- with her Dad? A. No, I don't. Have you ever denied him additional time that he has requested? A. I did deny him when Stacy quit coming in he asked me about a Wednesday and I had reasons for denying that. So one request he made that you denied? A. And he asked me about being that he was on vacation over her birthday and I allowed her to go. ~ You allowed Nicole to go out to his place when he was on vacation? A. Wednesday through Sunday. Since being in court last summer, has Nicole been enrolled in any kind of child care or school program? A. She went to the Carlisle Day ~re Center for kindergarten. That's here in Carlisle? A. Yes, it is. How many days a week did she go? A. Five days a week. Is that a full day or half day? A. Well, the kindergarten program is from nine to three but I took her there. I had to be at work by about twenty after seven so I took her there usually around seven a.m. until I got back from my bus run usually about ten of four when I picked her up. -146- And do you know who her teacher was? Miss Lee Middleton. She's here this afternoon, is she not? Yes. From your end at home, what did you witness so far as Nicole's adjustment and development at school? A. Nicole loved to go there. I had no problems with her there. A. Did she seem to make satisfactory progress? She did very well, I feel. (Whereupon, Defendant's Exhibit No. 1 was marked for identification and admitted.) ~ I show you Defendant's Exhibit 1. Can you explain what that is? A. A. Is that right? A. Yes, it does. Now you've sat here this morning and listened to the reports that Mr. Stoner said he has been receiving from Nicole. Starting just a month or two after last summer's hearing up through the winter. A. Yes. Report card. Report card from the Day Care Center at kindergarten? Yes. That shows her report for all four marking periods. -147- ~ Have you received reports also from Nicole as to what goes on when she visits with her Dad? A. I had called her father. It was a couple months ago. Nicole had come home and was telling me that Sue was pinching her. When she would be bad instead of, that was her punishment, she'd pinch and squeeze her arms and I called Ed about it. I didn't make a big thing of it because I just didn't feel he would allow that to happen. ~ When you heard that report, you called him about it? A. Yes, I did. ~ What did he say to you? A. It was not happening. ~ Did Nicole say anything to you about being questioned or being examined when she went over to her father's place? A. Yes, she did. That's one reason why I denied him the one Wednesday when he asked me for additional time with her. She was telling me that he was taking her clothes off of her when she'd go over there and he would go over any black and blue mark on her body and, "Did Lee do this? Did Lee do that? Does Lee hurt you? Does he touch you in your private places? He'll be mean to you, ' Nicole,"she would say. "He's not a nice person." ~ Now, Nicole is reporting to you that this is what's going on at her Dad's place? A. That's what she told me. -148- ~ NOW, so far as the reports that Nicole made about what was going on in your place, are they accurate? A. No, they are not. ~ Did you ever slap Nicole and cause her a bloody lip? A. I never did that to her. ~ Are you aware of Lee ever kicking her in such a fashion as to cause a bruise? A. No, I did not. I know they horse around and play a lot but he never kicked that little girl and bruised her. ~ How did you find out that Nicole was being taken to Sally Rooney? A. I'd say it was probably the April visit. I was not aware of any of the other ones and I was taking her to the Day Care Center one morning and she just started crying and said, "Mommy, I don't want to go back to that lady anymore." And I said, "Who?" And she said, "Sally Rooney. Daddy's starting to take me to Sally Rooney." I didn't know about January and whenever the other one was and that's when I called you and I asked you if I could stop this. ~ Basically said when she's with Dad, Dad can take her anyplace? A. That's what you told me. ~ You didn't take any steps to put that to a stop? A. No. ~ You let it run its course? A. Yes, I did. -149- ~ But you say when you found out about it Nicole seemed to be distressed about going? ~. Yes, she was very. I had trouble even getting her to go to school thatmorning. ~ Now you've indicated that from all appearances Nicole did well and adjusted well to Day Care and kindergarten. How did she seem at home? A. Nicole just seemed like a very happy little girl to me. She has many friends where we live. She always has someone to play with. And how do you feel your relationship with her is? A. I feel I have a very good relationship with Nicole~ Having gone to kindergarten last year, what is in store for her this coming year as far as school is concerned? A. I have her registered for Hamilton School for first grade and being that I drive school bus there she's allowed to go to work with me and I'd be picking her right up at school on the bus. A. kids and she's permitted to ride with me. The bus that you drive? That I go there anyway to deliver kids and to pick .up And you've already arranged that with the school? Yes, I arranged that at the end of school. So that you will be able to take Nicole to school -150- every morning? A. And pick her up after school. And pick her up after school everyday? Yes. How early must you leave in the morning in order to get her to school in order to start your bus run? A. My first pick up is at 7:25 so I like to-- I only live a block away from where I work so if I leave by 10 after I have plenty of time. ~ Aside from learning that Nicole was going to see Sally Rooney, am I correct the first word you got of this petition was when you were served with the legal paper? A. Pardon? The first word you got of Mr. Stoner's efforts to change the custody arrangements,when you got served with the legal papers? A. Yes, 2' knew nothing of it. Would it be your desire to see Stacy more than you do? A. Yes, I'd love to see her. You heard Sally Rooney say here this morning that she thought possibly some counseling was in order betwesnyou and Stacy? A. Yes. How do you feel about that? -151- else. I would go. Would you go to Sally Rooney for it? I don't know. I think I would rather go somewhere You've taken that position before, haven't you? Yes, I've taken Nicole to Tressler Lutheran Services and in October of '87. ~ Mr. Stoner said he wasn't aware you'd pursued any counseling anyplace. Is that correct? A. Yes. ~ You say you did pursue some counseling? A. Yes. ~ At Tressler? A. Tressler Lutheran Services. ~ And where did you go for that? Where are they located? A. They were down in Camp Hill when I had taken her. I think they moved now. Nicole? How many times did you go? We went one time and he felt no further need. Was Stacy involved in that? No. You'd be ~willing~to go iback there with Stacy? Yes. The only people in your household are yourself and -152- Yes. Lee Lehman is still involved in your life very much? Yes, he is. He does spend a lot of time at your house? Yes, he does. Sometimes sleeps over? Yes, he does. Your only household income is from your employment, from the support you get from Mr. Stoner? A. Yes, it is. I do houseclean for a lady Fridays. you that, in the summer months. I told MR. ANDREWS: No further questions. CROSS EXAMINATION BY MR. GRIFFIE: Mrs. Stoner, isn't it true that after you received the custody petition in this case, the petition for modification in the mail, that's when you once again started trying to initiate some sort of contact with Stacy? A. Contacted Stacy times Ed doesn't even know about. I started calling in the mornings before he even got home from work and we'd talk and talk. Stacy would know about that? Yes. We had a good time talking together. When did these occur, if you can give me a timeframe? -153- A A Q One, two, ten, twenty? A It was more than once. four or five times. Q A Q A I cannot give you any dates, like I said, I would call before I knew Ed was home in the mornings. Q But this was since January or February, is that correct, since you had? Yes. Did you have any idea how many times these conversations occurred? I don't know how many times or when. I've called her,I bet I've called her Since January? Yes. Even when they were at the trailer still I've called. Since January and before the petition,you received the petition in the middle of July? A Yes. BY THE COURT: Q What name came out of those phone calls? A We basically just talked about what she was doing for the summer and I would invite her to go places but she would always have to have permission from her father, which I understood that he had custody of her and it would always turn out she couldn't go. And I did ask her why one time and she told me because I lied too much and I said, "What did I lie about?" And then she cried and cried. -154- BY MR. GRIFFIE: Q Whenever you had the bad weekend you had the argument last time she came to visit, what did you do about that? A What did I do about it? Q Your daughter, at that point, refused to come over anymore. What did you do about it? A I didn't bother her for awhile because I figured that would make matters worse. Q Did you ever through any means contact her to see if she would meet with you or if you could go to counseling together or work anything out? A Q Not counseling but I offered to do things with her. Have you ever talked to her about trying to figure out what happened back then and get on with a better relationship? A No, I haven't. I've told her that I was sorry and he says that I haven't. I apologized for things that happened between us. Q Let me make sure I understand why you were humiliated at church. You were humiliated because your husband and his girlfriend attend the church there? A I didn't feel that was right at all being that we were still married and he took her into the same church that my children were going to. I didn't even feel right going there if there was a program for the kids because of them two because I did attend one and everyone just was so busy staring at us, I think they missed the whole program. -155- Q A six miles. ' Q You stopped going there even before Mr. Stoner had a relationship with Sue Naylor, didn't you? A I never attended regular. Q But you stopped going all together even before the last hearing in July. Correct? A Like I said, I've never went regularly. Q Didn't have anything to do with the fact that you were having an extra-marital relationship, that didn't humiliate you? A I'm not saying that,I would have never thought of taking Lee into that church with me. How far does Lee live away from you? He lives in right outside of Plainfield probably about Q About how long does it take you to get in from his house into Carlisle? A Probably ten minutes. Q When you and Nicole stay at his house, do you know what time you usually get up to come into be in daycare? A We rarely stayed there. The nights that Nicole had school we mainly spent the weekends that Nicole was with me but if we did we would. six. Q A I never got Nicole up any earlier than quarter after Now, Mr. Lehman has children also, doesn't he? Yes, he does. Q How many children does he have? -156- A He has two boys and two girls. Do they ever stay over with you or with you and Lee? They have. Overnight for weekends or whatever? Yes. And Nicole is there when that happens? Yes. Do you recall Nicole having a cut lip? No, I don't. I know she has fallen before and stuff but it was never from me. Q What are some of the names of the kids that Nicole plays with at your house? A There are kids everywhere. There's T.J., Heather, Angela, Jamie, Holly, Don. There's kids everywhere to play with where we live. Q How old are they? A Most of them go to first grade the same as Nicole. Q The argument and break-up of the relationship you have with Stacy, if I'm understanding your testimony correctly, that's basically all her fault because of how she treats you? A I'm not blaming it on her. Stacy just cannot adjust to me being with Lee. I think that's the whole thing. Q Have you ever hada~cision to make between Lee or her and in front of her taken Lee? -157- A I asked Stacy right out in one of our phone conversations and I said, "If Lee was not in my life would you have come to live with me?" She said, "No, I would never come live with you again." But she said, "I would probably continue visiting you." Q Did you ever have Stacy around Lee since the last court order in July of '87? A One Saturday when the kids were with me. I always took them into the Hamilton for lunch. One Saturday we went in we were about halfway back through the restaurant and Lee and his oldest boy were in there eating and I just went the whole way to the back of the restaurant, I didn't sit near him or anything. Nicole went up and sat with him for awhile but I didn't. Q You didn't leave Stacy and go set with him? A I walked up to him and told him I had my furnace worked on, that was it, and went back and got a table because we didn't have any heat that morning when we woke up. Q You obviously object to the fact Mr. Stoner didn't tell you when the new counseling with Sally Rooney began. You didn't tell him you had any counseling sessions at Tressler Lutheran in '87, either, did you? A No. Q You indicated you and Mr. Lehman stay together sometimes on weekends at his house and sometimes at your place. Aren't you basically together all the time at one place or the other? A Yes. -158 _ Q place? A Q So he normally, I guess then, during the week he stays at your Most of the time. Nicole never said anything to you about having a bruise from Lee hitting her or kicking her? A No. Q Mrs. Stoner, did Nicole witness a big argument that you and Lee had in the car where you were arguing about your relationship and Mr. Lehman seeing some other woman? A No. Q So if she said anything to her father that something like that occurred, that wouldn't be true either? A No, that never happened. Q Did you talk to Nicole about the custody hearing and indicate to her if she went to live with her father you won't have any family left that she was basically all you had? A I didn't tell her that. I told her I loved her and wanted her with me. I didn't tell her if she left I'd kill myself, like was said earlier. I never said that to her. Q Q If she said that to her father, that would be incorrect? I never said that to her. MR. GRIFFIE: That's all the questions I have. BY THE COURT: Where do you live? 30lA North Bedford Street, Carlisle. -159- Q A Yes, they visit with Nicole. all of them. Q And you have lived there since when? I moved in June 20th of last year. Do the Lehman kids ever come to your house? She ge~ along really well with Do they stay overnight? They stay on weekends sometimes with their father. At your house? Very seldom, it's usually at their Dad's. And the girl that he was involved with, on a criminal basis, does she come and visit also? A No. Q Who was that, I've forgotten? A Beth Lehman. Q Was that a step-daughter? A Yes. Q The kids, the Lehman kids, they live with their mother? A Yes. Q And where does she live? A Up-- I don't know how to explain it. Toward Shippensburg midway between Shippensburg and Carlisle where the Hilltop Motel used to be down over the hill from there. Q And the property where you live at, would you describe it just briefly as far as room makeup? -160- ~/~----~ A Kitchen, living room and dining room combination, two bedrooms and bath, downstairs, bottom floor. Q When Stacy would come and stay with you, what did she and Nicole stay together in the same room? A I had bunkbeds for them. Q Again, after the hearing in March when Stacy started to come with you, do I understand that they weren't pleasant visits then either, that-- had? A After March? Yes. No. We got along good for a long time. How long was it that you got along good? I'd say it started right around December. So from March until that time, how were the visits you and Stacy A We had sometimes where she'd get moody and but it wasn't anything like it got toward the end. I would try talking to her and just nothing I said-- I was just-- I was no good was just how she felt about me. Q Has she ever called you since February of '88 or whatever the date was when her Dad came and got her? A No. Q A So any contacts were with you here? Yes. THE COURT: I don't have anything else, gentlemen. Mr. Griffie? CONTINUED CROSS EXAMINATION BY MR. GRIFFIE: Mr. Lehman, all his four children are to just one woman? -161- A now. Q A Whereupon, No. Jessj~ the ten year old is to another lady. She's eleven So that one lives somewhere else? She lives in Perry County. MR. ANDREWS: MR. GRIFFIE: THE COURT: I have no further questions. Nothing further. Nothing else. Thank you. LEE MIDDLETON having been duly sworn, according to law, testified as follows: DIRECT EXAMINATION BY MR. ANDREWS: Q Your name, please~ A Lee Middleton. Q How do you spell Lee? A L-e-e. Q Is that Ms. Middleton? A Yes, Miss. Q You're a teacher at the Carlisle Day Care Center? A Yes, kindergarten teacher. Q Did you teach Nicole Stoner this past year? A Yes, I did. Q Is that when you first got to know Nicole when she started kindergarten last fall? -162- A Yes. I have a chance to get to see a lot of children in the other classes because the rest of nursery school. So I had seen her in the peanuts game room before but I'd never known her or met her. Q Was she in your class for the entire year? A Yes. Q Mrs. Stoner has introduced and marked as an exhibit a report card. That's marked with a blue sticker, there, says Defendant's Exhibit 1. Is that in fact, are those evaluations that you gave to Nicole? A Yes, they are. Q How long have you worked at Carlisle Day Care Center? A Two years. Q And how many kids have you been involved with there? A Under my direct supervision in my classes? Q Yes. A Approximately fifty. Q Can you describe how Nicole's adjustment and development was during her kindergarten year? A Sure. At the beginning of the year I saw difficulties cognatively with her alphabet and her number skills. As far as her socialization skills, she was fine and as far as her physical development, she was doing satisfactorily. Throughout the course of the year she seemed to blossom cognatively and as a result did satisfactory by the end of the year with her numbers and her alphabet and her social and work habits improved and she was always very happy when she was in school. Q She seemed' to be a happy child? A Yes, very talkative but happy. -163- Q Going down the social and work habit section of the report from kindergarten, I think she has attained a level of G in every category. Is that correct? A Yes. Q Is that the highest evaluation possible? A Yes. Q Did you bring with you today also the daycare center file pertaining to Nicole? A Yes, I have her personal file. Q And are those the records that are kept in the ordinary course of business at the Day Care Center? A Yes. Q Among those records, is there records that indicate a visit by Mr. Stoner to the Day Care Center? A Yes, there's one. Q Can you indicate when that was and what that was about and what that resulted in? A The date on here is Monday, December 7th, 1987. It was a visit by Edward Stoner to the executive director. It said that it was referred to Judy Maietta by the program director, who's Linda Wiser. Basically Edward came in to tell Judy that he was interested in Nicole's development throughout the year and wanted to have report cards sent home to him and he also wandered how she was adjusting to school and if there were ever any signs of trouble he wanted to be notified. -164- Q about? Did he provide further information as to what he was concerned MR. GRIFFIE: Your Honor, I'm going to object if these are not THE COURT: for itself. MR. ANDREWS: comments that are in the records since she was not present. MR. ANDREWS: They are, your Honor. I'll introduce the business record if you prefer I thought it might be easier to understand if we just-- THE COURT: May I see if that involves what we're talking about here? (Shown to the court). If you want to mark the record, the record will speak Do you have any objection, so this can stay with the school, do you have any objection to photocopying it? MR. GRIFFIE: Fine. BY MR. ANDREWS: Q According to the record, that visit by Mr. Stoner to the Day Care Center was in early December, I believe? A Yes. Q Did you get directions then as to how to respond as a teacher as Nicole's teacher after that visit by Mr. Stoner? A Judy called me into her office, it was either that morning or the next morning, I don't remember which it was, a Monday or Tuesday, and she said that she had met Nicole's father and that she would like me to relay any information that I may come across to her so that she could take appropriate action and get in touch with him. -165- ~ And were you to be at all sensitive to any changes in Nicole's behavior? A. She asked me to describe how Nicole was doing and I did and she said, "Well, just keep a special eye out for her." She was talking about mood changes, moodiness. And Nicole had never appeared to be moody. AnOther thing she brought out to me was her bed-wetting problem at home at night and Judy had relayed to Edward that neither one of these problems were seen by me at the Day Care Center or by Judy. ~ Did you keep any special eye out for any such developments with regard to Nicole? A. Yes. Did you see any? A. No. I did make sure that a copy of her report card was sent to him every grading period but at no time during the year did I feel there was any cause to contact him. (Whereupon, Defendant's Exhibit No. 2 was marked for identification by the stenographer and admitted into evidence.) ~ So we're clear for the record, I've taken the record you brought with you in the file and marked a photo copy as Defendant's Exhibit No. 2. Is that correct? A. Right. ~ Your understanding that's a record that was kept by the Director of the Day Care Center? A. Right. -166- lip. be 1987. A. A. A. A. ~ You've heard testimony here today about an injured Are there records of any other instances? A. There was one. It's dated December 14th, that would Should I just read it? Was this something you yourself witnessed? Yes. The split lip or injured lip? Yes. Did that happen at school? Yes. Do you recall how it happened? No, it happened in the peanuts game room at the end of the school day, the children would be returned to their preschool rooms where their parents pick them up and this was something that had happened in the preschool room that afternoon. ~ You're not aware of Nicole ever coming to school with a lip injury or split lip claiming that her Mom had done it to her? A. No. The reference that's in the file was that Mrs. Stoner was advised that this injury occurred at school? A. Yes. It says that Betty was told that Nicole had fallen in the room and bit her lip and what was done because of that. -167- much. MR. ANDREWS: No further questions. Thank you very MR. GRIFFIE: I don't think I have any. have any questions, your Honor. MR. ANDREWS: excused. MR. GRIFFIE: MR. ANDREWS: I don't Thank you very much and you may be No objection. We'd have no further testimony, your Honor, other than again the children. THE COURT: Any rebuttal that you would have at this time, Mr. Griffie? What I plan to do is talk to the children and we'll make a decision. MR. GRIFFIE: We have nothing further, your Honor. (The court, counsel and stenographer only retired to Chambers to talk to the children at 4:50 p.m.) BY THE COURT: ~ Stacy, I believe you know Mr. Andrews represents your mother? A. Hi. ~ I think you remember me? A. Yes. ~ You know, of course, we're here to ask you some questions and we would expect that you will tell the truth and you'll do that? A. Yes. You'll be fourteen in December, Stacy, -168- if I remember right? A. Yes. And you've been with your father at least since the last court hearing in March? A. Yes. And your sister, Nicole, went to live with your mother and then there were visits back and forth between. You would go to visit with your Mom and then, of course, Nicole would visit with your Dad and ~metime these visits, you were both together sometimes too. Is that right? Yes. What grade did you finish last year, Stacy? A. Q. Eighth. And this year, I understand, you've since moved to Perry County so you'll be going up to Big Spring? A. West Perry. And you'll be in ninth grade? A. Yes. From what I heard in here today, why apparently for awhile the visits, what between you and your Mom, went pretty well after the courthearing? A. Yes, they went pretty smooth in through there but then she came and picked me up at church one day and this is what started the whole thing. I came out with Dad. It was -169- Nicole and I. And Nicole--Dad was holding Nicole and she's waiting in the car. And I came over and I get in and all of a sudden looked at me and said, "That's it. I'm not bringing you to church no more. You~used me enough h~miliation by walking out with your Dad." And I thought, what's going on because I wasn't expecting this. Then we get home and she just kind of moped and I didn't want to say anything because I thought maybe I'd get on the bad side of her. All of a sudden she starts asking me why I don't like Lee and she doesn't understand why I don't want to be around him. I didn't say anything at first but she just started bugging me. And I could have said a lot worse but I didn't. I kept my mouth shut. And finally she got to me. I looked at her and I said, "Shut up." And she said, "Call your Dad." Which before I had told her to shut up I said, "Would you take me home." She goes, "I'm not taking you nowhere." I said, "Then I'll walk home." Said, "You're not walking nowhere." I just wanted out of there. And she told me to call Dad. So I called him and I'm in tears. I was so upset. And he goes, "Well, I'll be in to pick you up." It took him fifteen minutes to get in there. And she got on the phone, was going to talk to Dad but he already hung up. I heard her say, "If you want to raise a brat, then go ahead." So I went back in the bedroom and I looked at her. I told her to shut up again. I don't know if she heard me or not. I shut my door and locked it. I didn't want bothered because -170- she had me upset already. ~ But up to that time Stacy things were going pretty well. Is that right? A. Yes. Have you ever called your mother since that incident to try and talk about this? A. No, I haven't. She has called me three or four times. Has she apologized for what went on? A. No. I haven't once heard, "I'm sorry." And she called me the one day and asked me if, well, she said to me, "If I get Lee to leave, would you come and live with me?" I said, "No." She said, "Why if you hate me that bad why don't you tell me." I said, "I don't hate you." I don't literally hate her. She's my mother and is always going to be. But I said to her, I said, "There's too much that's happened." And I said, "My pride don't stand in the way of having-- I say I'm sorry when I feel I have to or even if I don't have to." I went back to her probably several times and I said I'm sorry for the past weekend. You said you did do that? A. Yes. Where did you do that at? Mom to apologize to her? ~ In at the house. Where did you see your The weekend. There was weekends -171- we'd get into arguments, okay, and I'd come home. And I'd tell Dad, I'm not going in no more. He'd sit me down, have a talk and say, "I think you should go back in, just try and work things out and apologize even if it wasn't your fault." So I'd go in, gave her a hug and say, "I'm sorry for the last weekend," but I never, she never came up to me and "I'm sorry." ~t hurt to have her not say it. ~ Obviously you have a lot of hate for this Lee and if that's the way it is, that's what it has to be. But what do you think of your father living with a woman that he's not married to and at the time that he's married? Do you think anything is wrong with that? A. He's not doing good by it, but, you know. ~ That doesn't bother you? A. No, it doesn't. ~ But if your mother were to live with Lee that would bother you, is that right? A. Well, maybe not so much now that I'm not going in there on the weekends. But if he'd be living there when I went in on the weekends, I think I'd have quit maybe going in just there. ~ Why do you think that is so bad when your father is living with a woman that he's not married to? What is the difference? A. There's a big difference. -172- Tell me what it is. I'd like to know what it is. Well, what did Lee do? Well, you have to tell me, Stacy? Well, didn't he molest his stepdaughter? Is that the reason you don't like him because of this allegation that he molested his stepdaughter? A. I'm scared to go in. I don't know what he's going to do. A. Did he ever do anything to you, Stacy? No, he didn't touch me. It's just his attitude. I can't stand him. ~ I think we put it on the court order that on the weekends that you're with your Mom, Stacy, she wasn't supposed to be in any type of contact with Lee. A. There was though. When was it? A. We went down here, the Hamilton, went in one day and she saw us standing outside, said, "I think Lee is there." We get in and she puts all the responsibility on me. She saw him and looked at me and said, "Do you want to go in here?" And I said, "No, not really." But my word meant nothing. We still went in and eat. Was that the only time,'Stacy,that this occurred? No, it was the only time it occurred. -173- ~ As far as you know, did your Mom have any plans to meet him there that day, from what you knew? A. Not that I know of but she, I mean, she saw his van and saw him and then looked at me and said, "Do you want to go in and eat?" And I said, "No.''~ But she still went in and went over and talked to him and let me sitting there all by myself. ~ Is it true that your Dad goes to church with this lady that he lives with? A. Yes. We were going for awhile but now we moved. We had to find another church. ~ So you haven't really then seen your Mom since about February of this year, would that be about it? A. Yes, about the beginning of February. But you believe, Stacy, that it was because you walked out of church that Sunday with your Dad that this is what happened that ~oUr ~mother was so mad about? A. Yes, because we were fine the morning before I went to church but I mean she just flared up the minute I got in the car. I didn't say anything to her. ~ Obviously we're not here trying to change your custody arrangement. That's not at issue. You're going to be staying with your father but while you're here, what could be -174- done, do you think, to start some type of relationship at least between you and your Mom, from your standpoint? What would you like to see done? A. A. mother unless there would be some type of counseling before you would go back to seeing her? Is that what you're telling me? A. Yes. ~ You wouldn't want to try and start going back to visit or anything like that again without that? I tried. After arguments we had, I still went back Counseling, something. Do you feel that your mother loves you as her daughter? Yes. What do you think counseling would solve, Stacy? I can't say. Do I understand that you don't want to see your I mean after this incident at church that time, you haven't gone back since that time, have you? A. No. I'm just trying to find out what, from your standpoint, what could be done to resume some type of relationship with your mother? Do you have an answer for that? -175- A. NO. I don't think I have anything else, Stacy. Like I say, your custody is not at issue here today but while we're here I thought maybe something could be done along those lines. I can't make anyone like somebody Obviously. But I do think this is, just as a matter of fairness, when your father does the same thing that your mother originally did, that you should keep that in mind too. Maybe your Mom started it first and maybe she was the fault of the marital breakup, but since that time why your father is in the same boat. So I don't think you should make too many moral judgments about your mother. BY MR. GRIFFIE: ~ Along those lines, Stacy, is it your mother's relationship with Lee that bothers you or is it Lee himself? If you can differentiate between the two. A. It's almost both. I'd have to answer that way. Based on your statements about what happened at the restaurant, where she went over to Lee, you seem to be indicating that at least on that occasion in your eyes she chose Lee over you when she had a choice. Are there other incidents like that or other things that have occurred like that that have helped Oause the problems betwe~you and your Mom? A. Where she chose someone else over me? -176- place? A. Or chose Lee over you in particular? A. I know we used to go to his ballgames and she'd sit and watch his ballgames. She'd go to his son's games but she couldn't come to mine. ~ So there have been other times like that? A. Yes. BY THE COURT: When in time are you referring to,Stacy, this took Last June. This would be at the same time when you were visiting with your Mom on a visit? A. Yes. BY MR. ANDR~S: '87 or '88? A. '87. And I go out here to North Middleton was my softball games. And Lee's one boy's are over in Shermansdale over past Twin Kiss over there. I mean, mine are, what, maybe three miles out of her way. BY THE COURT: Did your Mom know when you had your games? A. Yes. Would you have liked to have seen her? now about this year, '88? A. No, I didn't play this year. You're talking -177- That was '87? No. I'm too old for that. If I'd played it would have been in town here but we moved. I asked her many times to come and I was looking for her, no one. BY MR. GRIFFIE: ~ Stacy, when you came in to visit with your Mom, was she living where she is now at the apartment where she is now? Last summer and fall, I think she has lived the same place,. I'm not sure. A. I think it was. Did you meet other kids in there? Did you and Nicole have other kids to play with in there? A. There's kids all around. Nicole's age? A. There's about ten her age, not fit to be around her but around her age. ~ Why did you say they're not fit to be around her? A. Be around them for one day. They swear. If you're around, F this and F that, you'll understand. They're her age and they're saying that? A. Yes. The one boy, I think the oldest was eight years old and five year old came out and was saying this. ~ Did you get some calls? Did you indicate you got some calls from your Mom since February or January, whenever you had your argument? -178- 533 A. Yes. Do you know about how many times she may have called you? A. Three or four times. And they were right after, I guess, she'd got the papers for this court thing, then she starts calling wanting me to go swimming and go to these cook-outs and, you know. Would that be like last month? Last month, yes. How about when Nicole comes over, what do you and your Dad and Sue do with her? What kind of things do you do in the house? ~ We color, do puzzles, go over to one little State Park and go swimming. And then she likes time to herself. She. goes out and plays with the neighbor kids and rides her bike. ~ And your Dad-- You're saying your Dad is involved in that too, not just you or just Sue? A. Yes, or she'll take time out later on just Sue," Will you come color with me?'" Or, "Dad, will you come do this?" Or, "Stacy, will you?" changed? this year? How do you feel about Nicole? Has your feelings Have you seen any changes between last year and -179- A.We're growing together being more separated. You think you're a little bit closer than you were last year? A.Yes, but we're growing together but apart. Just one or two other questions, Stacy. Stacy, if you can remember back whenever you went to your Mom's before January or February, what kind of things did you ahd Nicole do in there when you would visit with your Mom? ~ I'd go outside with her and take her down to the playground and let her ride her bike around. You would take her? A. Mom would stay inside. I'd ask her to come out but,'~'m busy. I can't right now." ~ So basically for your weekends you spend them with Nicole doing stuff with her? A. I spent more with Nicole, yes. MR. GRIFFIE: That's all the questions I have. BY~E COURT: ~ Did your Dad ever tell you that you had to go visit with your mother after that? A. No, he didn't tell me. He told me it was my choice but he said he'd like me to go in and work out the problem that was there. He didn't ever force me to go in. He said it was my decision. -180- BY MR. ANDREWS: ~ Stacy, on that point, if your Dad said to you, you must go, would you go? ~ I don't think so. I feel it's me. He's not going in there, I'm the one that has to go in there and if I choose not to go in then-- ~ Are you unhappy that you're seeing Nicole less than you did a year ago? A. Yes. Well, the reason you're seeing less of her is because you're not going in to see her at her place, isn't that so? A. Yes. So couldn't you see her more just by agreeing to go in to visit with your Mom on alternate weekends and alternate Wednesdays? A. I could see her more but I could see her more if she was living with us. You went to the Hamilton School last year? A. No, I went to Wilson. Excuse me. Wilson School. Did you ever see your Mom going to and from school on the school bus? I saw her up at the high school. She was parked. Did she ever come and talk to you? Yes. -181- How many times did that happen? She probably come about two times a week. So even though you weren't going down to see her, she would seek you out and come and talk to you up at the school? A. Yes. ~ Is that right? A. Yes. ~ Did you ever make a point to search out her bus and go talk to her? A. No, because I'm not allowed off my bus. ~ I don't know these rules.. I guess they probably keep track of you. A. You're not allowed off your bus. Since last summer, since a year ago, when you were here, I think, also a year ago and Judge Sheely said anytime you're around your Mom Lee is not suppos~ to be there. A. Yes. Do I understand you to say the only time he has been around you was this one time at the Hamilton Restaurant, that's it? A. Yes. That Sunday with a blow-up after church, was that the only time you ever told your Mom to shut up? -182- Only time,~ You told her twice that morning? Yes, and I don't know. Never told her that before? No. MR. ANDREWS: THE COURT: No other questions. I think that's it. Thank you. (At 5:13 p.m. Nicole entered the Chambers and Stacy was excused.) BY"THE COURT: ~ Do you remember me, Nicole? last year? A. A. Mr. Andrews is the lawyer for your mother. your mother. Is that right? A. Yes. I talked to you Yes. Do you know these men here? Yes. Mr. Griffie, he's the lawyer for your~a%her and You now live with ~ And do I understand you'll be in first grade this year? Is that right? Yes. Do you know whe~ yOu'l~i.b.e goingl,~.%o school this year? Hamilton. -183- Q. How far is that from where you live? Can you walk there? A. We're supposed to but Mom is going to haul me on her bus. Q. Where did you go to school l'ast year? Day Care Center. Carlisle. Q. And how did you like that? A. Good. Q. When you go to visit with your father, do you like those visits? her name? A. A. Yes. Do you like seeing your sister also? Yes. What's her name? Stacy. And who is the lady that lives with your Dad? That's the What's Sue. Do you like her? Yes. Does she treat you nice? Yes. And your mother has a boyfriend and what is his name? -184- hurt you? A. Lee. And how does he treat you? Good. Does he ever hurt you or do anything to you to He just-- I was walking out of his place and he does? A. just pulled my hair and that hurt but he didn't mean to pull my hair hard. He didn't mean to do that, you don't think? He didn't mean to. Your Mommy drives a school bus, is that what she Yes. Q. Did Lee ever kick you or anything like that? he ever give you a kick to hurt you? Did mark. Q. happened? He kicked me but he didn't make no black and blue How did that happen? Do you remember how that ~ I was playing with him and he just kicked me. kicked him and he kicked me. You say you were playing when this happened? Yes. Were you playing on the floor? -185- A. I don't remember that. Do you remember cutting your mouth one day at school? Did you cut your mouth at school? A. Yes. ~ How did that happen, do you remember? A. Yes. ~ How did that happen? Tell me how it happened? A. It didn't happen. Mom hit me when I was being bad and it cut my lip because her fingernails are long. ~ But did you also cut your lip one time at school? Did you fall at school? A. No. h. You never did? No. THE COURT: I don't have anything else. BY MR. GRIFFIE: Nicole, what are. some of the kids that you play Mr. Griffie? with over at your Dad's house? Can you remember some of them? A. h. What are some of their names? Ail of them. Trisha, Chaz, Jessica. Who are Stacy's friends? David, Eric and Jimmy. That's all. But the first three, Chaz, Trisha, and Jessica, I know Stacy's. they're all about your age and they're your friends? -186- A. Yes. And what kind of things do you do when you go over to Dad's when you go over for the weekends? A. Play. What kind of play? A. I play with the dog. Is there a dog over there? What's his name? A. Booger. What else do you do when you're over there at Dad's? A. I color with Dad. Anything else can you ~htnk of that you do? I know you haven't been over for a week or so. Anything else you can remember? with? I know Mom plays with me with Barbies. Your Mom does? Yes. That's when you're at Mom's house? Yes. Who is the best colorer? THE COURT: When? Who? Anybody you know who can color best? Me and Dad. In at Mom's are there kids in there for you to play -187- A. More over. There's more in at our house than there is over at Dad's. ~ What are some of the kids over at your place? What are their names? A. Nick, Norman, Travis, Jamie, Heather. How old are those kids? A. Twins, they're a lot older but I don't know how old they are. A. five. Are those kids your age or older? Yes. Your age? Some of them. One, Heather, is six and Jamie is MR. GRIFFIE: I don't think I have any more questions. BY MR. ANDREWS: Nicole, have you ever seen the Hamilton School? No. Do you know what it looks like? No. Are you looking forward to going to first grade? I go past it. Do you look at it when you go by? Yes. You've seen it from outside? -188- Yes. Never been inside? No. How do you feel about going to first grade? Good. When you were in kindergarten and at the Carlisle Day Care Center, did they give you breakfast there? A. Yes. ~ Part of your kindergarten program? A. Yes, in our preschool rooms they did. ~ And they gave you breakfast there too? A. And we only got lunch with the kindergarten and for a snack we went with the preschool. MR. ANDREWS: No other questions. Thank you. MR. GRIFFIE: Nothing further, your Honor. THE COURT: Thanks, Nicole. (The parties left the Chambers at 5:22 p.m. and all interested parties reconvened in the courtroom at 5:23 p.m.) (Closings.) MR. GRIFFIE: In the Court Order entered March 13, 1987, my recollection of the court's remarks and the statement the court put at the end of the order indicating that both counsel were or either counsel was offered the opportunity to petition the court for a change in the custody arrangement -189- back last August leads me to believe this is the?type of case that the court wanted to monitor in many respects. The only hearing the court had between that time and now was raised on petition very strictly limited to the presenc.e~ of Mr. Lehman around Stacy Stoner. In that respect, we're now in a position where Mr. Stoner has had numerous problems that he followed up with through a psychologist who presented him with her opinion and testimony just as she did to the court today. It was based on the complaints of his father and the information provided to him by the psychologist that he felt it was imperative he petition the court and ask to have his younger daughter with him in this case. I believe that the testimony you've heard of all the witnesses here in court as well as the children indicates that these two children should be together. There was some discrepancy last year because of changes or the wide range of children's ages, two children's ages, and their contact. Much of the testimony, even from Mrs. Stoner's psychologist indicates that what may have been not a teribble close relationship between the children last year certainly is extremely close now. I believe that the children must be together now that we, the court, has experienced a year and a half of them being apart. We also believe that the testimony of Miss Naylor, of Mr. Stoner, of Sally Rooney, in fact of Stacy Stoner, indicates -190- that the claim that Mr. Stoner continues to in some way poison Stacy's mind simply isn't true. Possibly the court can take exception with the fact that Mr. Stoner has not physically forced his older daughter to go visit her more, but, at the same time, again out of Stacy and Mr. Stoner's mouth we've heard that he's the one that got her to go back in when she had several fallings out with her mother. He's the one that told her to apologize even if she didn't do anything wrong. I think that if the court can recall, Mr. Stoner, of March 1987, Mr. Stoner of August '88, they'll see a tremendous changed individual. He has changed for the better in many respect, not the least of which have to do with the dealings with his children. He is ready, willing and able to take care of the children. Children should be together. And whatever the court determines occurred between Mr. Lehman and the young child Nicole , that certainly simply serves to aggravate the circumstances. But we're asking the court to place these children back togeth~m so they can live together under Mr. Stoner's guidance with appropriate contact with their mother. THE COURT: Mr. Andrews. MR. ANDREWS: If your Honor please, I would just suggest that the change that Mr. Griffie has said exists, just has not existed. I lament that there's still such an adversarial -191- relationship here between mother and father which apparently may still be a product of an unresolved divorce case, but I think that that is exactly what this case is a product of. When I look at the thought of taking Nicole to Sally Rooney for therapy, I submit that that's just not what took place at all, that was for an evaluation supposedly to bolster this very petition. If there was any part of this family unit that needed therapy, it wasn't Nicole, it~was Stacy and her mother. Mr. Stoner knows from over a year ago that Mrs. Stoner is not amenable to counseling with Sally Rooney. I also disagree with the character of this hearing. I submit that there was a hearing in March of '87 after which your Honor entered an order indicating that the matter could be reviewed again in the summer. And I submit it was reviewed again in the summer. Though that second inquiry, that second review, was, in fact, limited to a great extent to the involvement of Lee Lehman, that was the opportunity for Mr. Stoner to bring to the attention of the court anything that pertained to that original order. There really has been no substantial change of circumstances in this case since the O~der of custody that was entered was entered. I would urge the court to urge these parents to work cooperatively to get along. If Mr. Stoner can afford to pay Sally Rooney to do the therapies, supposedly, with Nicole, I submit he can pay. He's in a much better position than -192- Mrs. Stoner on her limited income. He can pay for Tressler Lutheran or somebody else to help repair the relationship between Stacy and her mother, which is the relationship that really needs attention here. Every indication is that Nicole is developing as a bright, well-developed young girl. She faired very well in kindergarten. The arrangements are in place for her to attend the Hamilton School here in Carlisle with a very good arrangement. And I would ask your Honor not to disturb that arrangement. BY THE COURT: ORDER OF COURT AND NOW, August 22, 1988, at 5:30 p.m., after hearing, the petition by Edward L. Stoner, for custody of his daughter, Nicole Stoner, born June 17, 1982, is refused. The court believes at this time considering the circumstances and the feelings between the parents and the fact that Stacy is not compelled to visit with her mother, that if the younger daughter were permitted to return to her father within a short period of time the same thing would happen there and the mother would never have any visitation with either of the daughters, The court at this time does not believe that the best interest of Nicole would be for custody to be awarded to her father. The court directs that the partial custody agreement entered into between the parties for both girls be continued. -193- Bradley Griffie, Esq. For Plaintiff Taylor P. Andrews, Esq. For Defendant :cfd By the Court, /s/Harold E. Sheely Harold E. Sheely, P.J. THE COURT: I think it's terrible, Mr. Stoner, that you leave a thirteen year old girl dictate to you whether she'll go visit with her mother. I've had this happen in other cases before and you just ha~e to tell her that this can't be. She's going to conjure up all kinds of things as long as you let her do what she's doing now. As I told you, I'm satisfied if Nicole went to live with you a couple weeks or couple months later she'd be conjuring up things and you'd let her make up her own mind too. And that's not the way parents are supposed to do things. MR. STONER: That's why I went to Sally Rooney in order to deal with Stacy. I tried to deal with Stacy, not conjure things up. Nicole's safety is what scared me more than anything with the incidences. THE COURT: Well, I've had this happen. This certainly isn't the first case where this has happened and -194- a parent has to be firm. There,~was nothing that occurred-- MR. STONER: I agree. THE COURT: --of any significance that should have caused Stacy just to get all upset and refuse to go. MR. STONER: I agree with the firmness. But if I destroy the relationship between Stacy and I because a problem was between Betty and Stacy, okay, that's two destroyed. Then where is Stacy at? You said you had kids in court in front of you brought back because of these things in earlier sessions, families spilt up. I do try to reason with Stacy with what's right and what's wrong, with telling the truth and not lying. These are the things I emphasize with her. Not hate your mother. I've never said that. THE COURT: The thing about this whole situation is that obviously your wife and that guy sitting back there, I guess, were the cause of the break-up of the marriage and what they did was wrong. But now you're in the same situation as they are. You're living with a woman you're no~married to and you have a thirteen year old girl, your daughter is, and you're not setting any better example now than she did initially. I agree she was the initiating party. As far as I can see now the pot is calling the kettle black and that's not the way it should be. -195- MR. STONER: the children, okay,- THE COURT: MR. STONER: Your Honor, the best interest of That's right. --to be together. It's like they're being punished at this point by~.'being~i'taken apart. They're not being grown together. This is what I'm seeing. That's right. They love each other and the visitation THE COURT: MR. STONER: would be wide open. THE COURT: Based on your letting Stacy do what she w~nts to do, you haven't convinced me of that. So for the time-being why the arrangements will be the same. If I get a petition in here to set a custody order with the mother with Stacy, we'll hear it at that time. And I'm afraid there's going to be some bad things that are going to come out of that because if I enter an order and she doesn't visit, you're going to jail. You're the one. You're her father and that's what is going to come out of it, I'm afraid. (Court adjourned at 5:35 p.m.) -196- CERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause and that this is a correct transcript of same. Chery~ Farner Donovan Registered Professional Reporter The foregoing record of the proceedings upon the above cause is hereby approved and directed to be filed. ~ Harold E. ~.e .J. -197- EDWARD L. STONER, Plaintiff V BETTY J. STONER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 92 CIVIL 1987 IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 BEFORE SHEELY, P.J. On August 22, 1988, a hearing was held before this court concerning the plaintiff Edward L. Stoner's petition to modify custody of his daughter, Nicole L. Stoner, born June 17, 1982. The modification would give the plaintiff sole custody of Nicole rather than partial custody. At the conclusion of the hearing, an order of court was handed down in which the petition for modification was refused. Subsequently, plaintiff appealed this order and filed a statement pursuant to Pa. R.A.P. 1925. As such, this court submits this opinion to support its order entered August 22, 1988. The history of this case involves an ongoing custody dispute between the parties concerning their two children, Stacy L. Stoner, born December 29, 1974, and Nicole L. Stoner, born June 21, 1982. Initially, by order of this court dated March 13, 1987, custody of Stacy was awarded to her father, the plaintiff, while custody of Nicole was awarded to her mother, the defendant. In addition, a partial custody arrangement was established for both parents concerning both children. Subsequently, the plaintiff petitioned this court for modification of the custody award concerning Nicole. NO. 92 CIVIL 1987 A hearing was held concerning the petition for modification. At that time, we heard the testimony of the parties; the plaintiff's mother, sister, and girlfriend; clinical psychologists, Sally Rooney and William Thomas; Nicole's Kindergarten teacher, as well as the in camera testimony of both Nicole and Stacy. The legal principles applicable to a custody proceeding between a mother and father are well established. The sole issue involved in a custody decision is the best interest and welfare of the child. Nancy M. v. Kenneth D.M., 316 Pa. Super. 351, 462 A.2d 1386 (1983); Beers v. Beers, 342 Pa. Super. 465, 493 A.2d 116 (1985). Thus the court's concern is entirely with a child's physical, intellectual, moral and spiritual well-being, with the burden of proof shared equally by contesting parents. In Re Custody of Hernandez, 249 Pa. Super. 274 Pa. Super. 274, 376 A.2d 648 (1977); Hartman v. Hartman, 328 Pa. Super. 154, 476 A.2d 938 (1984). We also recognize that modification of an existing custody order should not be undertaken lightly, largely due to our ever present concern for preserving stability in the life of the child. Hartman, Id.; Snarski v. Snarski, Pa. Super. , 538 A.2d 1348 (1988). However, we are also mindful that stability is not to be preserved when there are other reasons why the environment in which the child is living under the present custody order is no longer the one that will serve the child's overall best interests. Parker v. MacDonald, 344 Pa. Super. 552, 496 A.2d 1244 (1984). -2- NO. 92 CIVIL 1987 Additionally, it is also well established that every parent has the right to develop a good relationship with his or her child, and every child has the right to develop a good relationship with both parents. Pamela J.K.v. Roger D.J., 277 Pa. Super. 579, 419 A.2d 1301 (1980). Therefore "when parents are separated and custody is placed in one of the parents, there exists a danger that the parent having custody . . . may use his or her advantageous position to alienate the other parent from the affections of the child." Commonwealth ex rel. Lotz v. Lotz, 188 Pa. Super. 241, 246, 146 A.2d 362, 364 (1958), aff'd, 396 Pa. 287, 152 A.2d 663 (1959). The court must, therefore, guard against this danger as it strives to render a decision which is in the best interests of the child, Barclay v. Barclay, 367 Pa. Super. 529, 533 A.2d 143 (1987), while at the same time taking into consideration which parent, if given custody, would facilitate and not hinder visits between the child and the non- custodial parent. See Pamela J.K.v. Roqer D..J., supra; 23 Pa. C.S.A. §5303. Thus, we note that the welfare of a child is clearly best served by the maintaining of the parent-child relationship with both of its parents. Karis v. Karis, .... Pa. , 544 A.2d 1328 (1988); Peterson v. Hayes, 252 Pa. Super. 487, 381 A.2d 1311 (1977). With these legal principles as our foundation, we turn now to the testimony given at the modification hearing. What concerns the court the most in this case is the plaintiff's disregard for the recognized need to establish regular visitation between Stacy and her mother (the non-custodial parent). -3- NO. 92 CIVIL 1987 Although this petition and hearing specifically concerns Nicole, this court is not blind to the pattern established whereby a minor child in the custody of the plaintiff is allowed to refuse visitation with the non-custodial parent. Plaintiff's attitude is one in which he admits that he does not encourage or require visitations of his oldest daughter with her mother if the daughter does not feel so inclined. (N.T. 9-13; 60-62). Such action on the part of the plaintiff, as the custodial parent, is unacceptable to this court, see 23 Pa. C.S.A. §5303. We are concerned, therefore, that a similar destructive pattern would also develop if the plaintiff was given custody of Nicole. It is conceivable that the plaintiff would also allow Nicole to dictate whether, if at all, she would visit with her mother. Thus, we believe that if Nicole were to reside with the plaintiff, it is foreseeable that in a few weeks or months that she, too, would begin to make excuses not to visit with her mother and that the plaintiff would abide by this decision rather than replace the child's decision with one of a responsible and mature parent who would insist upon such visitation. This court is also concerned with the best interests of Nicole as they relate to her schooling. Specifically, our concern is with the proposed school day routine Nicole would have to undergo if she resides with the plaintiff. Apparently, the responsibility of preparing Nicole for school would go to Sue Naylor, the plaintiff's live-in girlfriend. This routine would involve awakening Nicole between 5:00 a.m. and 5:40 a.m., every school day morning in order to prepare her for school. (N.T. -4- NO. 92 CIVIL 1987 122). Then, Nicole would be taken to a neighbor's home where she could rest and have something for breakfast before going to school. We compare that routine with the stable routine Nicole would follow if she remained with her mother. There, Nicole would not need to be awakened at 5:00 a.m. on school mornings because she would ride to school on the school bus the defendant drives and she would return home the same way. (N.T. 150-151). Thus, when comparing these two routines on a day-to-day basis, we must decide which routine would be in Nicole's best interest and at the same time which routine would cause the least stress to a six-year-old child. We think the choice is clearly for the routine which involves the arrangements with the mother. Moving on, we note that the custody court clearly has an obligation to consider all relevant factors that could affect a child's well-being, since its paramount concern is a child's welfare and best interests. Denillo v. Denillo, Pa. Super. .., 535 A.2d 200 (1987). We note, however, that where there is conflicting testimony in a custody matter, the decision of what testimony to believe must be left to the trial judge who has the opportunity to observe the demeanor of the witnesses and actually hear the testimony. Nancy M. v. Kenneth D.M., supra. In this case, we had the benefit of hearing from Nicole during an in camera examination. During her testimony, we noted that the child gave straightforward and disarming explanations of her interaction with her mother and her mother's boyfriend. Specifically when questioned by the court, Nicole responded as follows: --5-- NO. 92 CIVIL 1987 Q. And your mother has a boyfriend and what is his name? A. Lee. Q. And how does he treat you? A. Good. Q. Does he ever hurt your or do anything to hurt you? A. He just -- I was walking out of his place and he just pulled my hair and that hurt, but he didn't mean to pull my hair hard. Q. He didn't mean to do that, you don't think? A. He didn't mean to. Q. Did Lee ever kick you or anything like that? Did he ever give you a kick to hurt you? A. He kicked me but he didn't make no black and blue marks. Q. How did that happen? A. I was playing with him and he just kicked me. I kicked him and he just kicked me. I kicked him and he kicked me. Q. You say you were playing when this happened? A. Yes. Q. Were you playing on the floor? A. I don't remember that. Q. Do you remember cutting your mouth one day at school? Did you cut your mouth at school? A. Yes. Q. How did that happen, do you remember? -6- NO. 92 CIVIL 1987 A. Yes. Q. How did that happen? Tell me how it happened? A. It didn't happen. Mom hit me when I was being bad and it cut my lip because her fingernails are long. (N.T. 184-186). These explanations certainly did not coincide with the proffered testimony of the plaintiff and his "microscopic" inspection of Nicole's body for bruises during her visits with the plaintiff. (se~ N.T. 39-40, But cf. N.T. 184-186). In all, Nicole's explanations of bruises (if any) as being the result of "horseplay" seemed more believable than the plaintiff's portrayal of the causes of the bruises. (N.T. 184-185). This case also involved the testimony of two expert witnesses, Sally Rooney and William Thomas, who are both clinical psychologists. As far as expert witnesses, it is clear that the question of who should have custody of a child is a legal decision for the court alone to make, and not one for a psychiatrist or psychologist to make. Commonwealth ex rel. Grimes v. Yack, 289 Pa. Super. 495, 433 A.2d 1363 (1981). Thus, an expert opinion offered by a psychologist is not binding upon the court. L.D.v.B.D., 291 Pa. Super. 589, 436 A.2d 657 (1981). See also, Straub v. Tyahla, 274 Pa. Super. 411, 418 A.2d 472 (1980). The court will, however, consider expert opinions along with all other evidence. Commonwealth ex rel. Newcomer v. King, 301 Pa. Super. 239, 447 A.2d 630 (1982). In this case, however, we find neither experts' opinion persuasive. The opinion offered by the plaintiff's expert, Sally -7- NO. 92 CIVIL 1987 Rooney, was, by that expert's own admission, based on non- standard operating procedure. (N.T. 89-91). That is, Sally Rooney's opinion was not based on interviews and observations in which both parents alternated in bringing the child to the meetings with the expert. Rather, it was only the plaintiff who secretly brought Nicole to these sessions so that the expert's observations of parent and child interactions were limited and certainly one-sided. Moreover, there is some question as to that expert's possible bias in that it was revealed that Ms. Rooney knew the defendant had a negative feeling towards her and, more importantly,that the defendant had not paid Ms. Rooney's outstanding bill, whereas the plaintiff had always paid his bill. (N.T. 93-94). The court is also unpersuaded by defendant's expert, William Thomas. Although the expert observed that, "there was no evidence to indicate from the testing that [Nicole] was under any severe or emotional distress" and that there was "nothing that would indicate any mistreatment or would indicate any severe difficulties in communication with any member of the family" (N.T. 131-132), we note that Mr. Thomas met with Nicole only once prior to rendering his expert observations. (N.T. 137). However, we do note that Mr. Thomas did not observe any alienation of Nicole towards her mother or father and that Nicole seemed happy and had a typical mother-daughter relationship with the defendant and that the relationship seemed free of any encumbrance. (N.T. 134). Therefore, although we have considered the opinions offered by these two experts, we are not bound by -8- NO. 92 CIVIL 1987 them nor do we find either to be persuasive. Rather, our decision concerning what is in the best interests of Nicole is rendered upon close consideration and weighing of all the testimony given in this regard with the appropriate credibility factor accordingly placed on such testimony. Finally, we note that the Pennsylvania Supreme Court in its recent decision of Karis v. Karis, Pa. , 544 A.2d 1328 (1988) stated that: · a petition for modification of a o o partial custody to shared custody order requires the court to inquire into the best interests of the child regardless of whether a 'substantial' change in circumstances has been shown. Id., 544 A.2d at 1332. (Emphasis added). Although this court is uncertain whether Karis applies to the present case where modification is sought in going from partial custody to sole custody, we are nonetheless satisfied that the best interests of Nicole would be for her to remain with her mother. However, if "substantial change in circumstances" is still the applicable standard for custody modification cases in Pennsylvania, then we also find that plaintiff has failed to show any "substantial" changes in circumstances to warrant the granting of this modification petition. In conclusion, after careful consideration of all the testimony given in this case, we feel at this time that the best interests of Nicole are best served by the denial of the plaintiff's petition to modify custody. Thus, custody of Nicole is to remain with the defendant with the partial custody arrangement entered between the parties concerning Nicole to continue. --9-- NO. 92 CIVIL 1987 By the Court, Ha¥~ld E. Sheely, P.J.~ Bradley L. Griffie, Esquire For the Plaintiff Taylor P. Andrews, Esquire C_~ For the Defendant -10-