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HomeMy WebLinkAbout06-3603SUSAN A. CALDWELL Plaintiff/Petitioner V. DAMEN RICHARD GINTER Defendant/Respondent IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. Of, - 3603 ?tk! 72.? CIVIL ACTION - LAW IN CUSTODY COMPLAINT FOR CUSTODY AND NOW, comes the Petitioner, Susan A. Caldwell, by and through her attorney Charles Rector, Esquire, and files the following in support of her Complaint for Custody: Plaintiff is Mother, Susan A. Caldwell, who currently resides as 23175 Lincoln Street, Unit B, Robertsdale, Alabama, 36567. 2. Defendant is Father, Damen Richard Ginter, who currently resides at 25 Firehouse Road, Walnut Bottom, Cumberland County, Pennsylvania, PA 17266. 3. The parties hereto are the parents of the following minor child: Shane D. Ginter (DOB 1/13/98). 4. On October 8, 2003, following a hearing before the Honorable John W. Thompson, of the Court of Common Pleas of York County, a hearing at which Mother was unrepresented, the Court granted primary physical custody of the minor child to Father, with generous periods of temporary physical custody to Mother. See Exhibit "A" attached. 5. The best interests and permanent welfare of the child will be served by a modification of the Court's Order granting Mother primary physical custody. Mother's reasons for requesting primary physical custody include inter alia: a. The minor child most recently faced a life-threatening kidney disorder which required hospitalization at Hershey Medical Center and will require continuing ongoing treatment. Mother is in a better position to provide care and treatment for the child. b. The minor child has expressed a continued consistent preference to reside primarily with her. C. Father has expressed very little interest in the child's health or education and has had little to no involvement with the child's First Grade progress at the Oak Flats Elementary School. Mother conversely has had extensive and ongoing communication with the minor child's school teacher, Mrs. Horst, and guidance counselor, Danielle Bingham. As a result of the minor child's upset at having many of his phone calls monitored and/or limited with his Mother, he has, at times, been permitted to communicate with his Mother from school. d. Mother believes, and therefore avers, that Father continues to be an habitual drug user. C. Father has failed to attempt to foster a feeling of affection between the minor child and Petitioner. He has further failed to prevent third persons from disparaging Petitioner in the presence of the child and has otherwise engaged in conduct which has hampered the relationship of the minor child to his mother. f. Defendant has failed to promptly notify Mother of the minor child's medical, dental and other medical conditions as they have arisen. WHEREFORE, Plaintiff respectfully requests your Honorable Court to grant her primary physical custody of the minor child. 14.1 1104 Fernwobd Av' tme, Ste. 203 Camp Hill, PA 17011-6912 (717) 761-8101 Attorney for Plaintiff/Mother Date: 6 ??(o! Rx Date/Time 06/16/2006 06:51 :UN-?5-e00F(THU) JUN-15-2006(THU) 16:50 2519479477 15:15 fH;RLE5 RECTOR ESI 2519479477 MR & MRS CALDWELL (fR.K)?1776!2!5? I verify that the statements made heroin are true and coned t undendend that fala atatammua heroin are made suhJeet to the penalties of 1S Ps.C.S. Secdon 4904, relating to unworn feWcation to authorities. t non (??J??? sueanC Idwal or ti-A" Date: CQ P. 005 PAGE 05 P 004/006 IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA DAMEN RICHARD GINTER No. 99-SU-00734-03 VS SUSAN McKENZIE, now known as CALDWELL York, Pa., Wednesday, October 8, 2003 Before Honorable John W. Thompson, Jr., Judge APPEARANCES: BRADLEY A. WINNICK, Esquire w° For the Plaintiff SUSAN McKENZIE CALDWELL, Pro Se y a e v v 3 µ'' w: .ti D I S C U S S I O N " We are here in the interest of Shane Donovan Ginter, age 5, date of birth, January 13, 1998. The background of this case is somewhat unique in that this child was born of parties without benefit of marriage, and after a separation mother had the child with 1 06/05/2006 11:59 2519479477 MR & MRS CALDWELL PAGE 02 father visiting on weekends in what I will refer to as the York area. I believe testimony located the parties in Manchester, York County. According to the testimony, mother then moved to Florida, and I do credit father's testimony that such a move was without prior consultation with him and resulted in his finding out where she was through her family who also resides in Florida. Upon discovering those circumstances father acted by filing an emergency petition with York County Common Pleas Court. As a result, an emergency order was entered on February 23, 1999, by Judge Renn directing the child be returned to York County and further ordering Petitioner to file a complaint for custody. Thereafter, a custody proceeding ensued, and a custody conciliation was held before Stephen M. Carr at which the parties reached an agreement. The agreement was adopted as an order of this Court by order dated March 9, 1999, again signed by Judge Renn, The essence of the agreement was that shared legal custody and shared physical custody of Shane on a two month on/two month off basis with transfer being the first Sunday of each month. The transportation burden was to be shared so that the 2 06/05/2006 11:59 JV 2519479477 J V MR & MRS CALDWELL PAGE 03VJ party who would exercise custody shall pick up the child from the residence of the other. This agreement was subsequently modified by further agreement between the parties and essentially resulted in a four month on/four month off shared physical custody which has been the case between the parties since mid 1999. The parties are before the Court presently because Shane reached an age where he was to start kindergarten. By happenstance of the timing of the four month agreed upon physical custody arrangement, the chilid ways,w11N MOt-hMr What) 9oheol wee to stard, Therefore, the child was registered in what is essentially a rwA4gWeraF-b4m-p.ragrvw in Fl;drid4.i That program is a full day as opposed to father's testimony of a half day program that would be contemplated should Shane have been in York by happenstance of time. This background is important because while at first blush this may have been a relocation case with specific factors necessary to be considered in a relocation case, because of the agreement, we don't consider this a relocation case. We also hasten to add neither party should be disadvantaged by the agreement that they did enter into and which essentially has been working since, as we said, approximately since mid 1999. 3 Il YYV?/I{In C: ?V?, VV VVVV\f?V ?,/ VJ?JV LJIJVI Jy?? 06/05/2006 11:59 2519479477 MR & MRS CALDWELL Now, there have been rather direct Y- PAGE 04 presentations by both sides as to what the present circumstances are, and there was very little negativity in the majority and bulk of the testimony though we do accept as fact from the testimony that mother has moved in the Florida area at least four times though father had claimed seven moves by mother. We also credit the father's testimony and find it more believable that significant periods of time went by without mother notifying father of her relocation in Florida or providing a .'trttePhOO* l rein b## for herself and `? C1 Shane. Now, under the law, normally parental custody agreements are afforded significant weight in analyzing whether there should be a change in custody. However, in this case that principle doesn't necessarily apply because of the distance and the practical conclusion that this Court cannot simply leave the parties as they found themself after their separation because of the distance involved. And while pre-kindergarten may be less significant than kindergarten or even first grade, it nevertheless presents an untenable situation to continue the agreement in effect. Why do I make that comment? Well, because both parties, as we review the evidence and the testimony 4 06/05/2006 11:59 2519479477 MR & MRS CALDWELL PACE 05 and consider as we are required to do both the statutory and the decisional factors as developed by the Superior and the Supreme Court, present, for lack of a better term, mirror images almost of both of these parents' current circumstances. For example, considering the factor of character and fitness, there are no claims by either party that the other is an unfit parent. Looking at character, there's no implication of any drug use, criminal activity, or any negative evidence, and both parents are to be commended for not moving into any mudslinging. There's some negativity I'll comment on, but the point I'm making is in considering the factors which I would generalize as impacting on Shane's best interest, we of course find ourselves balancing the evidence with each of those particular factors. Let me go through those factors based on the evidence that I've heard noting my only concern is arriving at a considered decision on what is in the best interest of Shane. It's not the Court's function to attempt to please everyone though if that's possible, certainly that's preferable. We would pause to note a party not being represented by counsel should not be disadvantaged nor should they receive any sympathy or particular consideration for lack of having counsel. 5 06/05/2006 11:59 2519479477 MR & MRS CALDWELL PAGE 06 While it's true counsel will certainly assist in focusing issues and perhaps drawing out evidence in a more logical or cogent manner, we believe we have afforded the Defendant, Susan Caldwell, the opportunity to present herself in any area she wished to testify about. We also asked the basic questions to elicit information on those factors we are required to consider. Having said that, as we run down the list of factors, we find both parents have the present ability to provide for the needs of Shane. We find mother served as primary caretaker during Shane's infancy. We do find that the current marital status of the parties is balanced equally. Both have remarried. Both spouses of the parties appear reasonable. Neither of them had horns or a tail that the Court could ascertain. Both spouses work. Father works. Mother doesn't work full-time but cleans houses for relatives on an as-needed basis. But both current marital relationships appear to be stable, and both spouses appear supportive of mother and father as they both seek custody of Shane. The education school circumstances in both areas we would conclude are somewhat equal. There was a concern stated in the papers that mother was not paying attention to Shane's preschool educational needs, but she produced workbooks and testified that she reads to Shane 6 nn VVLC. Inc Jvn VJ LVVV\1'IV I\/ LJJV LJI JYIJYII I VVI 06/05/2006 11:59 2519479477 MR & MRS CALDWELL PAGE 07 and uses the workbooks And we find no significant difference in the #!' 11I84^gus' (1d'I f day program foi p4wI1w11?4i?llli?t+ I?ath4tiRh .,:? Father's work schedule is somewhat unique in that he works two days on, has two days off, then works three days on and has two days off. In his direct testimony he says he works about 14 days a month. He has a significant amount of time to spend with his son since he works third shift, ;tieith#,' aM the athoe hand, while she- !si d .a .Ift difd ftrk i rW oloan Mutes, certainly has every doWt'urtity daily to care for Shana. ` She even testified that in cleaning some of the houses, because they are relatives, she took Shane along with her. We come to sibling relationships. Both second families are existent for mother and father. Father's wife, Helena, has two children. By all testimony juatm.:itho 15-year=oldr, and Jolene, the 13-year-61tt; get along well with Shane. They interact well together, and there is no evidence to the contrary. On the other hand, Mr. Caldwell has a 14-year-old son. Mark testified that his son, Justin, got along well with Shane while Justin was living with his father and stepmother and Shane. About six months ago Justin went to live with his mother, and there is a 7 xx uatem me JUN-US-000bIMUN) CJ:7b []19419411 r. uuo 06/05/2006 11:59 2519479477 MR & MRS CALDWELL PAGE 08 question of some adolescent depression circumstance with Justin that resulted in this decision. Justin spends no overnight time with his father. According to testimony, he sees his father literally every day. There is only a two mile distance between Justin's mother's home and Mark Caldwell's home. In any event, parents have moved on from their relationship and have, according to the testimony, have no particular negatives from either step sibling, We do view the current situation of father to be more set than mother's. With her stepson Justin there's a little uncertainty as to what is going to happen in January or whatever that time frame that Mr. Caldwell said he would be considering perhaps having Justin return to the home. We consider next the existence of a support network including family, friends, and support group. Father's father now lives in Florida. Mother's family is in Florida, and the testimony is that they have contact with both her family and her husband Mark's family on a regular basis which exposes Shane to those relatives and extended family. On the other hand, testimony is that father has relatives in the York area and regularly spends imn with them as well. "IL We come to the physical facilities of both 8 Nx uateoi me JUN-Ub-CUUbIMUNJ Cj:bb Cb1`J4(J4ff 06/05/2006 11:59 2519479477 MR & MRS CALDWELL V. Mi PAGE 09 parents. 8klft1jN r*** or* +" •the. process of purchersi ng,-' 'aftilu hares that are places) on lots for which rent is,a 1pid. 'Father's facility is demonstrated in the pictures, and there is testimony that his home is four bedrooms, two full baths. It's in a nice area with open fields. Frankly, it's a very neat mobile home park and certainly appropriate for what would be a family of five. Mother's mobile home is described as two bedrooms, one bath, same general setup. They don't have pictures, but we get the picture in our mind's eye of an open area. It is a mobile home park with rows of mobile homes on defined pads, but the testimony is there's an open lot, actually two, one directly behind the home in view from their patio and one where you have to go down the street to another field. And the testimony is the same for mother and father that children abound as neighbors. Shane has plenty of friends, plenty of kids to play with, and does in fact have friends that would be going to the same day care, pre-kindergarten, and school system in both locations. With regard to the activities, testimony is the same. There's fishing, and there's family outings. Mark Caldwell apparently likes racing and goes to motor sports events. Father has mentioned Hersheypark and drive-ins. In particular, father has mentioned signing up Shane for T-ball in the Spring of 2002, an organized 9 xx uarei a me Jun-ur cuuokmux) C]:?b C717U1741I r.UIU 06/05/2006 11:59 2519479477 MR & MRS CALDWELL PAGE 10 activity. We heard no evidence of such when Shane is with mother. Religion is a factor to be considered. Father is an atheist but testifies he certainly would not keep anyone from practicing any religion. While there was a hint that Helena goes to church, we really don't think that is a regular practice in their home. On the other hand, Mr. Caldwell testified that they attend church regularly, three out of four weekends a month usually, and mother has produced a promotion certificate from the Cedar Creek Baptist Church for Shane, though I recall Mr. Caldwell didn't identify himself as a Baptist. Besides he thought they might have preached a little better and got a little more attention during the services. Shane is exposed to religion on a regular basis from his mother. There are of course no expert opinions in this case. There is a hint that Shane may have some attention deficiency. Testing is to be done by mother, but that has not yet been scheduled. She only recently got the papers. However, from the evidence developed, we do find that mother was sharing this information more so later than earlier and did not communicate this to father. That brings us to the real dilemma in this case, and that's the ability of these people to 10 xx Uate/lime JUN-Ub-[UUbIMUN) tJ:bb cbiyaryarr Q6/05/2006 11:59 2519479477 MR & MRS CALDWELL r.uii PAGE 11 communicate with each other to cooperate and promote contact with Shane and develop a relationship, albeit long distance, with the other parent while Shane is in their custody. IW~ VIA*-! the dtliasrr't hove phoin ObOtmet un'firttered with 'Bhthe wheat he Is with his father". She paints a picture of Helena lurking in the background mumbling and talking so she carA hear while she's trying to talk with Shane. The Court has no illusions, having a telephone conversation with a five-year-old is not the easiest thing in the world to do. But nevertheless, mother raises this question about some interference and actually believes she heard some disparagement of her in Shane's presence. We are not persuaded by the evidence that such has occurred. We can accept mother's testimony that she doesn't much like the new wife and they don't get along, and r expect there is some tension from wife's part as well. All that is counterproductive when you think about the best interest of the child. We are to consider the effect of any change on the children. That's hard to do because of the four months on/four months off. As we said, it was mere happenstance that the child was with mother in Florida when school started for registration purposes. Actually we think if we had it right, the first weekend in October would have been a transfer of custody to commence father's 11 Rx Date/lime JUN-US-tUUb(MUN) el:bb [7194(9411 r.uic 06/,05/2006 11:59 2519479477 MR & MRS CALDWELL PAGE 12 four-month schedule That was delayed because of his pending trial that we have now conducted. Lot me step back a minute from analysis of the evidence and the factors and share a thought with both parents. Judges have claimed over the years that the hardest decision they have to make is what sentence to impose on a criminal Defendant. other judges say, no, the hardest is what to do with children in custody disputes. Neither of those decisions is an easy decision, but you have both essentially, because you couldn't agree on what to do with Shane, have given up your right to dictate what Shane will do and have basically turned it over to a stranger to decide, based solely on what we hear in Court. Now, most custody cases develop somewhat of a bright line; bad father, good mother, bad mother, good father, remarried parent, other one footloose and fancy free, the bitter mother, conciliating father and vice versa. But in this case I don't see that. I can't make a mistake in whatever decision I make because from the evidence I find that Shane's best interest would be served with either parent. So what then do we do? We don't have any of the tools that are available. I alluded to one earlier, that is, letting the status quo on your agreement control if I don't find any reason to change it, but that's not possible in this case. 12 Kx Uate/lime JUN-Ub-[UUbIMUNJ [J:bb C]l'l4r134rr 06105/2006 11:59 2519479477 MR & MRS CALDWELL Quite frankly, I find myself thinking not in terms of negatives but in terms of positives. F.UIj PAGE 13 When I weigh the positives for each of you on all of the factors I have mentioned and when I balance something as mundane as the facilities, NW-rtildiNbibll O 'NbWOlia11ft, U19 WWmcerttility With JUatin, and when I " ownaider who would' bast facilitate aomiaunicatiod, given the factual findings I have made, I find the positives weigh in favor of father. While most all factors are somewhat evenly balanced, I do find after weighing all of the evidence, the balance on the scales at this point tips in favor of father as having the most positive of the factors we've considered. 1 would be less than candid if I did not inform you both on the record that ;::, !fbi•dered faithor''a fl4Olalii OMI. dff*r i" Oif*$ft Iby d6tiditNgt Testimony of offers to settle, which are not legitimate evidence in the first instance, always present a dilemma in custody cases since we do use directives to determine what respective positions are. Father's position, as testified to, is that if he were to receive custody, he would provide financial support to have 11fft' 06" toi to. Vulti'. I balance that testimony against mother's concern that she has no family in the York area on which to rely. Since I have concluded the factors we are required to consider 13 NX Udteiitme JUN-U7-[UUbOUNI CJ:]b (ft) lyaf yalf Y. U I a 0.6/05/2006 11:59 2519479477 MR & MRS CALDWELL PAGE 14 weigh slightly in favor of father, the financial offer -a factorCin crafting a visitation schedule for mother. O R D E R Having made the factual findings I have made, we continue shared legal custody of Shane with both parents. Now, joint legal custody means the right of both parents to control and to share in making decisions of importance in the life of their child. To do so I believe ".weary Vhat fa4her provide to mother, as soon as !Pratt-461 after"'itgipt by 11111: aft. y. of school;' s@hedules, special event notifications, report cards, or Ohything involving Shonet Now, joint legal custody means also that 010 r 18 ehtitl*d to equal aceess..to the child's school, Medical, den'tAl„ and other important records.., We include that in this order because our view is this order will control for not just pre-kindergarten and kindergarten but will also control elementary school, junior high school, and throughout Shane's education. We do then award primary physical custody to Damen Richard Ginter, Shane's father, and notwithstanding that both parents share legal custody, major decisions involving the child's day-to-day living 14 xx umte/lime JUm-U7-000O?MUNJ C313o [717417411 r.U1J @6/05/2006 11:59 2519479477 MR & MRS CALDWELL PAGE 15 shall be made by the parent then having physical custody. That would fall to father except for periods of temporary physical custody that mother shall enjoy as hereinafter set forth. Partial physical custody is to take custody away from a custodial parent for a certain period of time. For mother that period of partial physical custody shall be the summer which is defined by the Court as the first Sjturdav f llowina the last day of schoQ to the Saturdav which begins the full week preceding the first day of 4&UQp,L. Given the vagaries of travel, I am not going to dictate precise drop-off/ pickup times to these parties. That time frame will be flexible h * ^^ ?'r?nr? ;n the afternoon until R-nn n'ninrk in the evening, but the day will be Sat r av, Mother will also enjoy a period of partial physical custody at least one weekend a month away from father's home at accommodations father will pay for, not exceeding $75 a night. I'm not going to dictate a particular set weekend, but we'll direct that mother will enjoy this period of partial custody upon two weeks notice tiltW°*wlWiWf 1 Wblmnrtg tb the Ybt+k area, r Mother will also have the Christmas holiday commencing with the second day of that holiday after school closes through the New Year's until the day before 15 Xx Uateiiime JUN-U5-CUUbkMUNI Cy:]b 0.6/.05/2006 11:59 2519479477 school reconvenes. C7194f 941( r. Ulo MR & MRS CALDWELL PAGE 16 That will commence this odd year, 2003, and will occur every odd year hereafter, with even years being with father. This is not to say the parties cannot agree on a split, but at this point I'm not going to subject a five-year-old to that trip up and down the east coast every year. However, should mother come to the York area over the Thanksgiving holiday, she will be entitled to have partial physical custody of Shane for the entire period of time he would be out of school for the Thanksgiving holiday. What I'm saying is if mother determines that her monthly weekend with Shane in York for November would be Thanksgiving weekend, that visitation will include the entire Thanksgiving holiday. Father would be responsible for two nights of hotel accommodations limited to the $75 a night figure I previously mentioned. Now I'm going to impose on father somewhat of a restriction on his vacations. During the summer when mother has Shane for the entire summer, father will be entitled to one full week of visitation with Shane in Florida to be away from mother's home for that period of time. Father will have the_burden of providing at least 60 days written notice of his intent to exercise a week vaccatioiz in Florida with Shane. I limit that visitation to Florida because his parents are down there. That's not 16 Kx Uate/lime JUN-UJ-CUUbkMUNI CJ:Sb n iyaryafr Q6/05/2006 11:59 2519479477 MR & MRS CALDWELL to say mother can't agree they can vacation somewhere r.uii PAGE 17 else, but at the moment Florida is where the vacation week will be spent. Now, with regard to phone calls, both parties are urged to use common sense in scheduling phone calls to talk with Shane. Let us remember he's a five-year-old, He's not going to spend 15, 20 minutes on the phone shooting the breeze. However, it is important that mother have telephone contact without interference, lurking, or backoround-innmments_. We are going to allow the parties to use their common sense, though we would say the phone calls should probably not exceed 15 minu and should not exceed three calls oer week. It goes without saying neither party will make any disparaging remarks about the other and indeed shall take all measures deemed advisable to foster a feeling of affection between Shane and the other parent. Neither party shall do nor shall either parent permit any third person to do or say anything which may estrange Shane from the other parent, their spouse, or relatives or injure Shane's opinion of the other party or which may hamper the free and natural development of a child's love and respect for the other parent. The parties shall not use Shane to convey any messages to the other parent about the custody situation. 17 Rx Uate/Ilme JUN-US-eHb(MUN) t7:5b []194f94ff r.Uia 06/05/2006 11:59 2519479477 MR & MRS CALDWELL PAGE 18 I am going place in the order one thing in particular about the transportation. While the parties can agree among themselves for transportation arrangements such as flying, in the absence of an agreement, the transportation is to be shared by the parties. Therefor . the party pi cki ngyp..tt?chi 1 for thei r Gusto v wi l? bear the transportation burden. In other words, mother will pick the child up at the beginning of the summer. Father will pick the child_ue at the end of the summer before the beainninc of school, i?,,p,..tf!° YCfNR, ali??!l?y PO`#WP, tft °ch' ltV Tl,p?l? ed?awl.gl4' E';:lle ony argument about tskiftq tthe chi l;d away or transpart.ipg hi* and father: eiwuld:omp+eratO if requested to eseiet vOth local portati 6 t Now, I've dictated this, and I'm going to direct it will be transcribed. There are some other mechanical provisions that I reserve the right to put in the order. I also will receive it and review it to see that I have not misspoken, transposed parties, or otherwise used inappropriate grammar. I would suggest it would be about ten days before I get that to review so you might expect that to be mailed to you. We'll send father's copy to Attorney Winnick within two weeks. I'm going to return the photograph and promotion certificate to mother. The books I believe I 18 Kx uate/lime JUN-U7-CUUOkmun) C]']O Q6/05/2006 11:59 2519479477 CDryaryarr MR & MRS CALDWELL r uin PAGE 19 already returned. I'm going to retain presently three of the four photographs presented for purposes of the record, If no appeal is taken, counsel may retrieve those after about 30 days after the order is entered and docketed. We make the effective date of this order today. Shane is to remain in York in father's custody. BY THE COURT: aad 10/15/03 Ginter v. Caldwell No. 99-SU-00734-03 46hn W. Thompson, Jr. Judge 19 t %'1 SUSAN A. CALDWELL IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V. DAMEN RICHARD GINTER DEFENDANT 06-3603 CIVIL ACTION LAW IN CUSTODY ORDER OF COURT AND NOW, Thursday, July 06, 2006 , upon consideration of the attached. Complaint, it is hereby directed that parties and their respective counsel appear before Melissa P. Greevy, Esq. , the conciliator, at MDJ Manlove, 1901 State St., Camp Hill, PA 17011 on Friday, August 11, 2006 at 1:00 PM for a Pre-Hearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute; or if this cannot be accomplished, to define and narrow the issues to be heard by the court, and to enter into a temporary order. All children age five or older may also be present at the conference. Failure to appear at the conference may provide grounds for entry of a temporary or permanent order. The court hereby directs the parties to furnish any and all existing Protection from Abuse orders, Special Relief orders, and Custody orders to the conciliator 48 hours prior to scheduled hearing. FOR THE COURT. By: /s/ Melissa P. Greets Esq. Vy? Custody Conciliator The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilites Act of 1990. For infonnation about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. YOU SHOULD TAKE THIS PAPER TO YOUR ATTORNEY AT ONCE. IF YOU DO NOT HAVE AN ATTORNEY OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 ?V '? ?'y ??'y?LL, %O C ?L ?1' ?.? .? ,. ,?i 3 Nov 3o too SUSAN A. CALDWELL, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. DAMEN RICHARD GINTER, Defendant NO. 06-3603 CIVIL TERM CIVIL ACTION - LAW IN CUSTODY )ORDER OF COURT AND NOW, this day of , 2006, upon consideration of the attached Custody Conciliation Summary Report, it is hereby ordered and directed as follows: 1. The terms of the October 8, 2003 Order of Judge Thompson of the York County Court of Common Pleas docketed to 99-SU-00734-03 are incorporated into this Order, with the following modifications: A. Father will resume primary custody of the child on August 19, 2006, at 3:00 p.m. B. Father will make the child available for telephone calls with Mother at 8:15 p.m. on Monday, Wednesday and Friday. Any missed calls will be promptly returned. The child shall be permitted reasonable telephone contact with the non- custodial parent upon his request. During the week of August 14, 2006, Mother will make Shane available to Father at 1:00 p.m. on Monday, Wednesday and Friday for telephone calls from Father. C. Father will provide Mother a copy of any sports or extra-curricular activities in which the child participates. D. The parties shall submit themselves and their minor child to an independent custody evaluation to be performed by Dr. Arnold T. Sheinvold. The parties shall sign all necessary releases and authorizations for the evaluator to obtain medical and psychological information pertaining to the parties. Additionally, the parties shall extend their full cooperation in completing this evaluation in a timely fashion and in the scheduling of appointments. Mother will pay 100% of the custody evaluation. However, Mother's right to petition for reallocation of the costs of the custody evaluation is reserved. E. Mother shall attend the next Custody Conciliation Conference in person. NO. 06-3603 CIVIL TERM F. Following the completion of the custody evaluation, a Custody Conciliation Conference may be reconvened upon a faxed request to the Custody Conciliator, if such request is made within ten (10) days of counsels' receipt of the evaluator's report. B J. Dist: Diane M. Dils, Esquire, 1400 N. Second Street, Harrisburg, PA 17102 Charles Rector, Esquire, 1104 Fernwood Avenue, Ste 203, Camp Hill, PA 17011-6912 A/K Id -q_(4- Olt-? Cs eti??? so :S up fl- 330 HE Alivi T,_ SUSAN A. CALDWELL, Plaintiff V. DAMEN RICHARD GINTER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-3603 CIVIL TERM CIVIL ACTION - LAW IN CUSTODY CUSTODY CONCILIATION SUMMARY REPORT IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE 1915.3-8, the undersigned Custody Conciliator submits the following report: 1. The pertinent information concerning the child who is the subject of this litigation is as follows: NAME DATE OF BIRTH CURRENTLY IN THE CUSTODY OF Shane D. Ginter January 13, 1998 Father 2. A Custody Conciliation Conference was held on August 11, 2006 in response to Mother's Custody Complaint of June 26, 2006. Present for the conference were: the Father, Damen Richard Ginter, and his counsel, Diane Dils, Esquire; the Mother's counsel, Charles Rector, Esquire. The Mother, Susan A. Caldwell, participated by telephone. 3. Procedural Matters. The parties had a hearing in October, 2003, in York County, wherein Judge John W. Thompson, Jr., awarded primary physical custody to Father. This was a modification of a prior Order of March 9, 1999, during which the parties had shared legal and shared physical custody on a two-month rotation, during which time Mother resided in Florida. Accordingly, pursuant to the UCCJEA, York County Court of Common Pleas retained jurisdiction of this matter. That being said, neither party resides in York County. Therefore, counsel filed a joint petition stipulating to change the venue and jurisdiction to Cumberland County. An Order was entered on October 31, 2006, by John W. Thompson, Jr., relinquishing jurisdiction in transferring the matter to the Court of Common Pleas of Cumberland County for further proceedings. A copy of this Order is attached hereto. While the parties have not reached an ultimate agreement on Mother's petition for primary custody, they have reached an agreement as to an Interim Order and to participate in a custody evaluation. Now that Counsel have notified the Conciliator that York County has relinquished jurisdiction, based on the agreement of the parties, the attached Order shall be entered as an Interim Order pending the completion of the custody evaluation and further proceedings. `y NO. 06-3603 CIVIL TERM 4. Mother's position on custody is as follows: Mother reports that she is better able to provide for the child, who has a kidney disorder which, in the recent past, has been life-threatening. Mother reports that the child wants to live with her and that Father has limited or monitored telephone contact with Mother. Mother alleges Father has used illegal substances and has failed to keep in contact with Mother with regard to the child's health issues. Accordingly, she does not see Father as supporting her relationship with the child. 5. Father's position on custody is as follows: Father objects to Mother's petition to modify custody and to transfer primary custody to Mother. While Father acknowledges that he did not promptly notify Mother of the recent serious medical problems the child was experiencing. Once the crisis had abated somewhat, and while the child remained hospitalized, he did contact Mother. 6. The parties reached an interim agreement in the form of an Order as attached, pending custody evaluation. Date Melissa Peel Greevy, Esquire Custody Conciliator :282396v2 NOV-07-2006(TUE) 14:15 CHARLES RECTOR ESQ DA1VlEN RICHARD GlIMP, Plaintiff V. SUSAN A- CALDWELL Defendaut (FRX)7177612161 : IN THE COURT OF COMMON PLEAS : YORK COUNTY, PENNSYLVANIA NO.99-SU 00734-03 CIVIL ACTION -LAW : IN CUSTODY ORDER P. 003/003 N C) ?. rn -cam -»I ? o pr AND NOW, this I day of ? imr _, 2006, in consideration of the within Joint Petition for Relinquishment of Jurisdiction &'Transfer of Jurisdiction of the Parties' Custody Cage, it is hereby ORDERED and DIRECTED that the jurisdiction of the Court of Common Pleas of York County, pursuant to 23 Pa.C.S. § 5422(x)(1), is relinquished and the case is hereby transferred to the Court of Common Pl eas of Cumberland County for further proceedings. _ -.1' - '91:? ::?,,. •,?.? - ?1 .?'S: •y i"r.. +.l+,'r: ?y :, .. • !? .•.:. ????'y ?.'??' :?"1•arf:•."w'??'r?-¢ ? ?.. . ' '? '"`! ? M?- ?' •• - ?'• 1. ? •:3.?.,1:;4ii :,priaw.f:! i Fiy'1 ?,..'M'.:u ..•J?u'w -: ?tr?i•al.•a me,??.. .!_ti. ..lr.:>. ••:::?: ,.•?' :.I:t~ r•i:l •. +•,y?l.'3'/a.?p?tiit' r+'? :-ySr ?.•?.?• ? 1I'iis ? i• , , :..a ..: . ?..i . q.?i. ....l: •,? ?•: a.:`:; '. ? .: ? .' 0+... :' l •• ..?.. • . ;1, •.,I. .??. .. . .. w.. .?. ?• l.rrr•.?. : ... ! .. ?.•.. .. • I a1, . ' 1 SUSAN A. CALDWELL Plaintiff/Petitioner V. DAMEN RICHARD GINTER Defendant/Respondent IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : NO. 06-3603 CIVIL TERM CIVIL ACTION -LAW IN CUSTODY PETITION TO MODIFY CUSTODY AND NOW, comes the Petitioner, Susan A. Caldwell, by and through her attorney Charles Rector, Esquire, and files the following in support of her Complaint for Custody: 1. Plaintiff is Mother, Susan A. Caldwell, who currently resides as 23175 Lincoln Street, Unit B, Robertsdale, Alabama, 36567. 2. Defendant is Father, Damen Richard Ginter, who currently resides at 25 Firehouse Road, Walnut Bottom, Cumberland County, Pennsylvania, PA 17266. 3. The parties hereto are the parents of the following minor child: Shane D. Ginter (DOB 1/13/98). 4. On August 11, 2006, a Custody Conciliation was held in this matter and an Interim Order was entered on December 1, 2006. See Exhibit "A" attached. 5. At the Custody Conciliation, the parties agreed that a custody evaluation be performed and Mother would be responsible for payment thereof. 6. Mother has been financially unable to pay the high cost of a custody evaluation and would like to move forward with a custody trial in this matter. 7. The best interests and permanent welfare of the child will be served by a modification of the Court's Order granting Mother primary physical custody. Mother's reasons for requesting primary physical custody include inter alia: a. The minor child has expressed a continued consistent preference to reside primarily with her. b. Father has failed to attempt to foster a feeling of affection between the minor child and Petitioner. He has further failed to prevent third persons from disparaging Petitioner in the presence of the child and has otherwise engaged in conduct which has hampered the relationship of the minor child to his mother. C. Defendant has failed to promptly notify Mother of the minor child's medical, dental and other medical conditions as they have arisen. d. The minor child shows an extremely poor academic performance. WHEREFORE, Plaintiff respectfully requests your Honorable Court to grant her primary physical custody of the minor child. Respectfully Submitted: arles Rector, uire 1104 Femwood Avenue, Ste. 203 Camp Hill, PA 17011-6912 (717) 761-8101 Attorney for Plaintiff/Mother Date: s / 2 4,0 k I verify that the statements made herein are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Susan A. Caldwell Date: 0 / a xq'p' CERTIFICATE OF SERVICE I, Charles Rector, Esquire, do hereby certify that on the 20th day of May, 2008, I caused a true and correct copy of the within Petition to Modify Custody to be served upon the following persons by depositing same in first class, United States mail, postage paid, in Camp Hill, Pennsylvania: Diane M. Dils, Esquire Dils & Dils 1400 N. Second Street Harrisburg, PA 17102 By: harles Rector, quire 1104 Fernwood Avenue, Ste. 203 Camp Hill, PA 17011-6912 (717) 761-8101 Date: - i -1 v e NOV SO SUSAN A. CALDWELL, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 06-3603 CIVIL TERM V. DAMEN RICHARD GINTER, Defendant CIVIL ACTION - LAW IN CUSTODY ORDER OF COURT AND NOW, this Ido day of , 2006, upon consideration of the attached Custody Conciliation Summary Report, it is hereby ordered and directed as follows: 1. The terms of the October 8, 2003 Order of Judge Thompson of the York County Court of Common Pleas docketed to 99-SU-00734-03 are incorporated into this Order, with the following modifications: A. Father will resume primary custody of the child on August 19, 2006, at 3:00 p.m. B. Father will make the child available for telephone calls with Mother at 8:15 p.m. on Monday, Wednesday and Friday. Any missed calls will be promptly returned. The child shall be permitted reasonable telephone contact with the non- custodial parent upon his request. During the week of August 14, 2006, Mother will make Shane available to Father at 1:00 p.m. on Monday, Wednesday and Friday for telephone calls from Father. C. Father will provide Mother a copy of any sports or extra-curricular activities in which the child participates. D. The parties shall submit themselves and their minor child to an independent custody evaluation to be performed by Dr. Arnold T. Sheinvold. The parties shall sign all necessary releases and authorizations for the evaluator to obtain medical and psychological information pertaining to the parties. Additionally, the parties shall extend their full cooperation in completing this evaluation in a timely fashion and in the scheduling of appointments. Mother will pay 100% of the custody evaluation. However, Mother's right to petition for reallocation of the costs of the custody evaluation is reserved. E. Mother shall attend the next Custody Conciliation Conference in person. NO. 06-3603 CIVIL TERM F. Following the completion of the custody evaluation, a Custody Conciliation Conference may be reconvened upon a faxed request to the Custody Conciliator, if such request is made within ten (10) days of counsels' receipt of the evaluator's report. B J. Dist: Diane M. Dils, Esquire, 1400 N. Second Street, Harrisburg, PA 17102 Charles Rector, Esquire, 1104 Fernwood Avenue, Ste 203, Camp Hill, PA 17011-6912 TV" CX)FYY M RAM 30 Of W!hww,f sJInto set gq the1k efi1S18L Pe 41" ?? IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA DAMEN RICHARD GINTER VS SUSAN McKENZIE, now known as CALDWELL No. 99-SU-00734-03 York, Pa., Wednesday, October 8, 2003 Before Honorable John W. Thompson, Jr., Judge APPEARANCES: BRADLEY A. WINNICK, Esquire For the Plaintiff n SUSAN McKENZIE CALDWELL, Pro Se DISS;USSI0N We are here in the interest of Shane Donovan Ginter, age 5, date of birth, January 13, 1998. The background of this case is somewhat unique in that this child was born of parties without benefit of marriage, and after a separation mother had the child with 1 Rx Date/lime JUN-US-eHb(MUN) eJ:5b ebigafyaff r uur 06/05/2006 11:59 2519479477 MR & MRS CALDWELL PAGE 02 father visiting on weekends in what I will refer to as the York area. I believe testimony located the parties in Manchester, York County. According to the testimony, mother then moved to Florida, and I do credit father's testimony that such a move was without prior consultation with him and. resulted in his finding out where she was through her family who also resides in Florida. Upon discovering those circumstances father acted by filing an emergency petition with York County Common Pleas Court. As a result, an emergency order was entered on February 23, 1999, by Judge Renn directing the child be returned to York County and further ordering Petitioner to file a complaint for custody. Thereafter, a custody proceeding ensued, and a custody conciliation was held before Stephen M. Carr at which the parties reached an agreement. The agreement was adopted as an order of this Court by order dated March 9, 1999, again signed by Judge Renn, The essence of the agreement was that shared legal custody and shared physical custody of Shane on a two month on/two month off basis with transfer being the first Sunday of each month. The transportation burden was to be shared so that the 2 kx Uate/lime JUN-US-eHbIMUN) tJ:5b t5lyufyuff r.UUj 06/0572006 11:59 2519479477 MR & MRS CALDWELL PAGE 03 party who would exercise custody shall pick up the child from the residence of the other. This agreement was subsequently modified by further agreement between the parties and essentially resulted in a four month on/four month off shared physical custody which has been the case between the parties since mid 1999. The parties are before the Court presently because Shane reached an age where he was to start kindergarten. By happenstance of the timing of the four month agreed upon physical custody arrangement, the -dhtlid- was, wiltf mot-h"Or When school was to start. Therefore, the child was registered in what is essentially a pa?e?+itbearean pre?r in Flbri d?,;. That program is a full day as opposed to father's testimony of a half day program that would be contemplated should Shane have been in York by happenstance of time, This background is important because while at first blush this may have been a relocation case with specific factors necessary to be considered in a relocation case, because of the agreement, we don't consider this a relocation case. We also hasten to add neither party should be disadvantaged by the agreement that they did enter into and which essentially has been working since, as we said, approximately since mid 1999. 3 Kx Uate/lime JUN-Ub-eUUb(NUN) tJ:tb C5144(1J4ft 06/05%2006 11:59 2519479477 MR & MRS CALDWELL Now, there have been rather direct F. UU4 PAGE 04 presentations by both sides as to what the present circumstances are, and there was very little negativity in the majority and bulk of the testimony though we do accept as fact from the testimony that mother has moved in the Florida area at least four times though father had claimed seven moves by mother. We also credit the father's testimony and find it more believable that significant periods of time went by without mother notifying father of her relocation in Florida or providing a.,%VVepA9O6.;rWi*be-t* for herself and N.-NM Shane. Now, under the law, normally parental custody agreements are afforded significant weight in analyzing whether there should be a change in custody. However, in this case that principle doesn't necessarily apply because of the distance and the practical conclusion that this Court cannot simply leave the parties as they found themself after their separation because of the distance involved. And while pre-kindergarten may be less significant than kindergarten or even first grade, it nevertheless presents an untenable situation to continue the agreement in effect. Why do I make that comment? Well, because both parties, as we review the evidence and the testimony 4 kx Uate/lime JUN-US-dHbtMUN) tJ:Sb (f51131L(yult 06/05%2006 11:59 2519479477 MR & MRS CALDWELL F.UU:) PAGE 05___ and consider as we are required to do both the statutory and the decisional factors as developed by the Superior and the Supreme Court, present, for lack of a better term, mirror images almost of both of these parents' current circumstances. For example, considering the factor of character and fitness, there are no claims by either party that the other is an unfit parent. Looking at character, there's no implication of any drug use, criminal activity, or any negative evidence, and both parents are to be commended for not moving into any mudslinging. There's some negativity I'll comment on, but the point I'm making is in considering the factors which I would generalize as impacting on Shane's best interest, we of course find ourselves balancing the evidence with each of those particular factors. Let me go through those factors based on the evidence that I've heard noting my only concern is arriving at a considered decision on what is in the best interest of Shane. It's not the Court's function to attempt to please everyone though if that's possible, certainly that's preferable. We would pause to note a party not being represented by counsel should not be disadvantaged nor should they receive any sympathy or particular consideration for lack of having counsel. 5 Rx Date/Time JUN-U5-2UUb(MUN) d3:5b e5lyafyaff 06/0/2006 11:59 2519479477 MR & MRS CALDWELL Y. UUb PAGE 06 While it's true counsel will certainly assist in focusing issues and perhaps drawing out evidence in a more logical or cogent manner, we believe we have afforded the Defendant, Susan Caldwell, the opportunity to present herself in any area she wished to testify about. We also asked the basic questions to elicit information on those factors we are required to consider. Having said that, as we run down the list of factors, we find both parents have the present ability to provide for the needs of Shane. We find mother served as primary caretaker during Shane's infancy. We do find that the current marital status of the parties is balanced equally. Both have remarried. Both spouses of the parties appear reasonable. Neither of them had horns or a tail that the Court could ascertain. Both spouses work. Father works. Mother doesn't work full-time but cleans houses for relatives on an as-needed basis. But both current marital relationships appear to be stable, and both spouses appear supportive of mother and father as they both seek custody of Shane. The education school circumstances in both areas we would conclude are somewhat equal. There was a concern stated in the papers that mother was not paying attention to Shane's preschool educational needs, but she produced workbooks and testified that she reads to Shane 6 Nx Uate/lime JUN-US-dHb(MUN) eJ:5b e5194(94(( 06/05/2006 11:59 2519479477 MR & MRS CALDWELL N. UU f PAGE 07 and uses the workbooks. And we find no significant difference in the fttj''*-N wro `i';?i'A'I fi day pr"r.aM fc? Father's work schedule is somewhat unique in that he works two days on, has two days off, then works three days on and has two days off. In his direct testimony he says he works about 14 days a month. He has a significant amount of time to spend with his son since he works third shift. Ms?itt the e!thot hand, while sho tai d .7 4ft 611d vm!> k i6d oltan hiouises, certainly has every 6"6rtUnity daily to care for Shane. ;` She even testified that in cleaning some of the houses, because they are relatives, she took Shane along with her. We come to sibling relationships. Both second families are existent for mother and father. Father's wife, Helena, has two children. By all testimony j*&JI.., ::ttfo,- 15--;ygaf?;oiffl, and Jolane., the 13-yeef'h-dld9 get along well with Shane. They interact well together, and there is no evidence to the contrary. On the other hand, Mr. Caldwell has a 14-year-old son. Mark testified that his son, Justin, got along well with Shane while Justin was living with his father and stepmother and Shane. About six months ago Justin went to live with his mother, and there is a 7 Kx Uate/lime JUN-US-dUUbtMUN) eJ:5b C5I`JUfljaff r.uuu 06/05/2006 11:59 2519479477 MR & MRS CALDWELL PAGE 08 question of some adolescent depression circumstance with Justin that resulted in this decision. Justin spends no overnight time with his father. According to testimony, he sees his father literally every day. There is only a two mile distance between Justin's mother's home and Mark Caldwell's home. In any event, parents have moved on from their relationship and have, according to the testimony, have no particular negatives from either step sibling, We do view the current situation of father to be more set than mother's. With her stepson Justin there's a little uncertainty as to what is going to happen in January or whatever that time frame that Mr. Caldwell said he would be considering perhaps having Justin return to the home. We consider next the existence of a support network including family, friends, and support group. Father's father now lives in Florida. Mother's family is in Florida, and the testimony is that they have contact with both her family and her husband Mark's family on a regular basis which exposes Shane to those relatives and extended family. On the other hand, testimony is that father has relatives in the York area and regularly spends time with them as well. " G. We come to the physical facilities of both 8 Rx Date/Time JUN-05- Mb(MUN) d3:5b e51y4(Y4(( N.UU13 06/05/2006 11:59 2519479477 MR & MRS CALDWELL PAGE 09 ` M parents. g1 i14°'? 1 &, process Of Purchasing-, ,>NMW l4: his that are pl aeW on lots -for which rent is:` WNW. 'Father's facility is demonstrated in the pictures, and there is testimony that his home is four bedrooms, two full baths. It's in a nice area with open fields. Frankly, it's a very neat mobile home park and certainly appropriate for what would be a family of five. Mother's mobile home is described as two bedrooms, one bath, same general setup. They don't have pictures, but we get the picture in our mind's eye of an open area. It is a mobile home park with rows of mobile homes on defined pads, but the testimony is there's an open lot, actually two, one directly behind the home in view from their patio and one where you have to go down the street to another field. And the testimony is the same for mother and father that children abound as neighbors. Shane has plenty of friends, plenty of kids to play with, and does in fact have friends that would be going to the same day care, pre-kindergarten, and school system in both locations. With regard to the activities, testimony is the same. There's fishing, and there's family outings. Mark Caldwell apparently likes racing and goes to motor sports events. Father has mentioned Hersheypark and drive-ins. In particular, father has mentioned signing up Shane for T-ball in the Spring of 2002, an organized 9 mx uateilime JUN-US-CUUbkMUN) rJ:7b C51yUfyuff r.UIU 06/05/2006 11:59 2519479477 MR & MRS CALDWELL PAGE 10 activity. We heard no evidence of such when Shane is with mother. Religion is a factor to be considered. Father is an atheist but testifies he certainly would not keep anyone from practicing any religion. While there was a hint that Helena goes to church, we really don't think that is a regular practice in their home. On the other hand, Mr. Caldwell testified that they attend church regularly, three out of four weekends a month usually, and mother has produced a promotion certificate from the Cedar Creek Baptist Church for Shane, though I recall Mr. Caldwell didn't identify himself as a Baptist. Besides he thought they might have preached a little better and got a little more attention during the services. Shane is exposed to religion on a regular basis from his mother. There are of course no expert opinions in this case. There is a hint that Shane may have some attention deficiency. Testing is to be done by mother, but that has not yet been scheduled. She only recently got the papers. However, from the evidence developed, we do find that mother was sharing this information more so later than earlier and did not communicate this to father. That brings us to the real dilemma in this case, and that's the ability of these people to 10 kx Uate/lime JUN-Ub-dHb(MUN) dj;5b ?519a(94 ff 06/05/2006 11:59 2519479477 MR & MRS CALDWELL F. U I I PAGE 11 communicate with each other to cooperate and promote contact with Shane and develop a relationship, albeit long distance, with the other parent while Shane is in their custody. N" ?1?`..±?VAONKft thdt the1 dtw ii "t have phon t ' ,boat Wnlirtte* ted with '8hdhe whey, °he- Is with his ftlth&?. She paints a picture of Helena lurking in the background mumbling and talking so she carf4hear while she's trying to talk with Shane. The Court has no illusions, having a telephone conversation with a five-year-old is not the easiest thing in the world to do. But nevertheless, mother raises this question about some interference and actually believes she heard some disparagement of her in Shane's presence. We are not persuaded by the evidence that such has occurred. We can accept mother's testimony that she doesn't much like the new wife and they don't get along, and T expect there is some tension from wife's part as well. All that is counterproductive when you think about the best interest of the child. We are to consider the effect of any change on the children. That's hard to do because of the four months on/four months off. As we said, it was mere happenstance that the child was with mother in Florida when school started for registration purposes. Actually we think if we had it right, the first weekend in October would have been a transfer of custody to commence father's 11 kx Uate/lime JUN-Ub-eUUb(MUN) eJ:bb e519Ufyaff 06/05/2006 11:59 2519479477 MR & MRS CALDWELL four-month schedule. That was delayed because of his pending trial that we have now conducted. V. Uic PAGE 12 Let me step back a minute from analysis of the evidence and the factors and share a thought with both parents. Judges have claimed over the years that the hardest decision they have to make is what sentence to impose on a criminal Defendant. Other judges say, no, the hardest is what to do with children in custody disputes. Neither of those decisions is an easy decision, but you have both essentially, because you couldn't agree on what to do with Shane, have given up your right to dictate what Shane will do and have basically turned it over to a stranger to decide, based solely on what we hear in Court. Now, most custody cases develop somewhat of a bright line; bad father, good mother, bad mother, good father, remarried parent, other one footloose and fancy free, the bitter mother, conciliating father and vice versa. But in this case I don't see that. I can't make a mistake in whatever decision I make because from the evidence I find that Shane's best interest would be served with either parent. So what then do we do? We don't have any of the tools that are available. I alluded to one earlier, that is, letting the status quo on your agreement control if I don't find any reason to change it, but that's not possible in this case. 12 Rx Date/Time JUN-U5-2UUb(MUN) eJ:5b d5IYV YV( 06/05/2006 11:59 2519479477 MR & MRS CALDWELL Quite frankly, I find myself thinking not in terms of negatives but in terms of positives. N. U I j PAGE 13 When I weigh the positives for each of you on all of the factors I have mentioned and when I balance something as mundane as the facilities, fV4r--Vd&t* W Vlbr ;'I*d , ttIV -ilk cartsUlty With "sti n , and when I " aensi +de.r who would' boat faci 1. i tAte owmuni cati orf , given the factual findings I have made, I find the positives weigh in favor of father. While most all factors are somewhat evenly balanced, I do find after weighing all of the evidence, the balance on the scales at this point tips in favor of father as having the most positive of the factors we've considered. I would be less than candid if I did not t'?iderd fathr`'s inform you both on the record that f4oWtO401: alftr. .1 mdkV4 try -dati si 6 Testimony of offers to settle, which are not legitimate evidence in the first instance, always present a dilemma in custody cases since we do use directives to determine what respective positions are. Father's position, as testified to, is that if he were to receive custody, he would provide financial support to have mmOt O td td .to. V:tdiv. I balance that testimony against mother's concern that she has no family in the York area on which to rely. Since I have concluded the factors we are required to consider 13 kx Uate/lime JUN-US-tHbtMUN) ?J:Jb t5l`id(f1lff r.Ulu 06/0t/2006 11:59 2519479477 MR & MRS CALDWELL PAGE 14 weigh slightly in favor of father, the financial offer 'Mika a;. YIMe? ,eE factory i n crafting a visitation schedule for mother. t O R D E R Having made the factual findings I have made, we continue shared legal custody of Shane with both parents. Now, joint legal custody means the right of both parents to control and to share in making decisions of importance in the life of their child. To do so I believe 4V2A'i * rY Vh9t fother-pt-6vids to mother', as soon as %Vr8Ct1Vb47 after'" ftttilpt It y `h'i:m; ahy copies of school, sohadul es , special event noti fi catlans , report cards, or Ohythi ng i nvol vi°rvg Shan4. Now, joint legal custody means also that Ot-ft r ts anti t1od to e+qUal access.. to the child's sohool , 0 Medical, den ,41., and other i-mportant records We include that in this order because our view is this order will control for not just pre-kindergarten and kindergarten but will also control elementary school, junior high school, and throughout Shane's education. We do then award primary physical custody to Damon Richard Ginter, Shane's father, and notwithstanding that both parents share legal custody, major decisions involving the child's day-to-day living 14 Rx Date/Time JUN-05-2006(MUN) 23:56 251y4(ya(( N.U15 06/05/2006 11:59 2519479477 MR & MRS CALDWELL PAGE 15 shall be made by the parent then having physical custody. That would fall to father except for periods of temporary physical custody that mother shall enjoy as hereinafter set forth. Partial physical custody is to take custody away from a custodial parent for a certain period of time. For mother that period of partial physical custody shall be the summer which is defined by the Court as the first Saturday following the last day of school to the Saturday which begins the full week_arecsding?the first day of 4WUAL. Given the vagaries of travel, I am not going to dictate precise drop-off/ pickup times to these parties. That time frame will be flexible bpfiu!r®en?=r, the afternoon slnti] .OD 'clnck in the evening, t the U wi 11 be Sa,?,_, tur . Mother will also enjoy a period of partial physical custody at least one weekend a month away from father's home at accommodations father will pay for, not exceeding $75 a night. I'm not going to dictate a particular set weekend, but we'll direct that mother will enjoy this period of partial custody upon two weeks notice t#eFt,VWV1 i'1l ft- tb9i ng tb the '1(bilk area, X Mother will also have the Christmas holiday commencing with the second day of that holiday after school closes through the New Year's until the day before 15 Rx Date/Time JUN-05-20Ub(MUN) eJ:5b d51'J4(Y4ff 06/0512006 11:59 2519479477 MR & MRS CALDWELL N. U I b PAGE 16 school reconvenes, That will commence this odd year, 2003, and will occur every odd year hereafter, with even years being with father. This is not to say the parties cannot agree on a split, but at this point I'm not going to subject a five-year-old to that trip up and down the east coast every year. However, should mother come to the York area over the Thanksgiving holiday, she will be entitled to have partial physical custody of Shane for the entire period of time he would be out of school for the Thanksgiving holiday. What I'm saying is if mother determines that her monthly weekend with Shane in York for November would be Thanksgiving weekend, that visitation will include the entire Thanksgiving holiday. Father would be responsible for two nights of hotel accommodations limited to the $75 a night figure I previously mentioned. Now I'm going to impose on father somewhat of a restriction on his vacations. During the summer when mother has Shane for the entire summer, father will be entitled to one full week of visitation with Shane in Florida to be away from mother's home for that period of time. Father will have_the burden of providing at least 60 days written notice of his intent to exercise a week vgcajion in Florida with Shane. I limit that visitation to Florida because his parents are down there. That's not 16 mx uate/lime JUN-US-eUUbtMUN) tJ:Jb r5lyuf`JUff 05/0/2006 11:59 2519479477 MR & MRS CALDWELL to say mother can't agree they can vacation somewhere F.Uif PAGE 17 else, but at the moment Florida is where the vacation week will be spent. Now, with regard to phone calls, both parties are urged to use common sense in scheduling phone calls to talk with Shane. Let us remember he's a five-year-old. He's not going to spend 15, 20 minutes on the phone shooting the breeze. However, it is important that mother have telephone contact without interference, lurking, or baackpround--r-QMm n s. We are going to allow the parties to use their common sense, though we would say the phone calls should probably not exceed 15 minu and should not exceed three calls r week. It goes without saying neither party will make any disparaging remarks about the other and indeed shall take all measures deemed advisable to foster a feeling of affection between Shane and the other parent. Neither party shall do nor shall either parent permit any third person to do or say anything which may estrange Shane from the other parent, their spouse, or relatives or injure Shane's opinion of the other party or which may hamper the free and natural development of a child's love and respect for the other parent. The parties shall not use Shane to convey any messages to the other parent about the custody situation. 17 Rx Date/Time JUN-U5-2UUb(MUN) e3 :5b d5194H U( N.Uiu 06/0/2006 11:59 2519479477 MR & MRS CALDWELL PAGE 18 I am going place in the order one thing in particular about the transportation. While the parties can agree among themselves for transportation arrangements such as flying, in the absence of an agreement, the transportation is to be shared by the parties. Therefo the party pi cki nq..# .?hi 1 d fo? r t heir custadY i 1 l?b_,ear the transp ortation bur den. In other words, mother will pick the child up at the beginning of the summer. Father will pick the child-un at the end of the summer before the beginning of school. Z fie;. t6 "I bft, 0*1111 Ptak ?,V-ft chIl-t " say-argument, al"t tskiirV the child away or transportieg hi* and fethe? a ld c.oaperaate if requested to e`esi-et Ath local "???^tet'10 Now, I've dictated this, and I'm going to direct it will be transcribed. There are some other mechanical provisions that I reserve the right to put in the order. I also will receive it and review it to see that I have not misspoken, transposed parties, or otherwise used inappropriate grammar. I would suggest it would be about ten days before I get that to review so you might expect that to be mailed to you. We'll send father's copy to Attorney Winnick within two weeks. I'm going to return the photograph and promotion certificate to mother. The books I believe I 18 Rx Date/Time JUN-05-2006(MON) 23;56 25194794!( N.UI'i 06/05/2006 11:59 2519479477 MR & MRS CALDWELL PAGE 19 already returned. I'm going to retain presently three of the four photographs presented for purposes of the record. If no appeal is taken, counsel may retrieve those after about 30 days after the order is entered and docketed. We make the effective date of this order today. Shane is to remain in York in father's custody. BY THE COURT: aad 10/15/03 Ginter v. Caldwell No. 99-SU-00734-03 I.S 46hn W. Thompson, Jr. Judge 19 f SUSAN A. CALDWELL IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. DAMEN RICHARD GINTER IN CUSTODY DEFENDANT ORDER OF COURT AND NOW, Thursday, May 29, 2008 , upon consideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear before Hubert X. Gilroy, Esq. , the conciliator at 4th Floor, Cumberland County Courthouse, Carlisle on Thursday, July 03, 2008 at 10:30 AM for a Pre-Hearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute; or if this cannot be accomplished, to define and narrow the issues to be heard by the court, and to enter into a temporary order. Failure to appear at the conference may provide grounds for entry of a temporary or permanent order. The court hereby directs the parties to furnish any and all existing Protection from Abuse orders, Special Relief orders, and Custody orders to the conciliator 48 hours prior to scheduled hearing. 2006-3603 CIVIL ACTION LAW FOR THE COURT, By: /s/ Hubert X. GilrO Es q. Custody Conciliator The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilites Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. YOU SHOULD TAKE THIS PAPER TO YOUR ATTORNEY AT ONCE. IF YOU DO NOT HAVE AN ATTORNEY OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 I-V ,`J V ?A a JUL 3 n 2008 Gc SUSAN A. CALDWELL, Plaintiff vs. DAMEN RICHARD GINTER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW NO. 2006-3603 IN CUSTODY COURT ORDER AND NOW, this 66Q ' day of JAO?, 2008, upon consideration of the attached Custody Conciliation Report, it is ordered and directed as follows: 1. A hearing is scheduled in Courtroom No. 2 of the Cumberland County Courthouse on the ag** day of a1..IyA., , 2008, at 13U p . m. At this hearing, the Moth r sha 1 e the moving party and shall proceed initially with testimony. Counsel for the parties shall file with the Court and opposing counsel a Memorandum setting forth the history of custody in this case, the issues currently before the Court, a summary of each party's position on these issues, a list of witnesses who will be called on behalf of each party, and a summary of the anticipated testimony of each witness. This Memorandum shall be filed at least five days prior to the mentioned hearing date. 2. Pending further Order of this Court, this Court's prior Order of December 1, 2006, shall remain in place. It is further understood that the Mother will be returning the minor child home to the Father on or before August 16, 2008, at 1:00 p.m. In the event either party retains a counselor to do any type of counseling/evaluation with the minor child in preparation for the custody hearing, the counselor/evaluator shall share the results of the evaluation with legal counsel for both parties and, as necessary and practical, the parties shall participate as requested by the counselor in any counseling sessions. BY THE COMT, Edgar B. Bayley, Judge cc: /Di e M. Dils, Esquire =e Costopoulos, Esquire `? >- L cn w? JO C3?; ? fir: LLI cm at "cc Si +c? C w SUSAN A. CALDWELL, Plaintiff vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW DAMEN RICHARD GINTER, NO. 2006-3603 Defendant IN CUSTODY Prior Judge: The Honorable Edgar B. Bayley CONCILIATION CONFERENCE SUMMARY REPORT IN ACCORDANCE WITH THE CUMBERLAND COUNTY CIVIL RULE OF PROCEDURE 1915.3-8(b), the undersigned Custody Conciliator submits the following report: 1. The pertinent information pertaining to the child who is the subject of this litigation is as follows: Shane D. Ginter, born January 13, 1998 2. A Conciliation Conference was held on July 21, 2008, via a telephone conference between the Conciliator and legal counsel for the parties. 3. The Mother resides in Alabama and the Father resides in Pennsylvania. Generally, the current custody arrangement is Father having primary custody during the school year and Mother having custody in the summer. Mother is now seeking primary custody during the school year. There was a prior Order entered directing the parties to a custody evaluation. However, the Mother now indicates she does not have the financial ability to pay for an evaluation. The Mother merely wants to proceed to a hearing. 4. The Conciliator recommends an Order in the form as attached. ' x V/,-; ? I Date: July, 2008 y, Esquire Hu ert X. Ziliator Custody w SUSAN A. CALDWELL, PLAINTIFF V. DAMEN RICHARD GINTER, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 06-3603 CIVIL TERM ORDER OF COURT AND NOW, this day of October, 2008, following a hearing on the merits, and after careful consideration of what is in the best interest of Shane D. Ginter, IT IS ORDERED: (1) The complaint of Susan A. Caldwell for primary physical custody of Shane D. Ginter, IS DENIED. (2) All prior custody orders are vacated and replaced with this order: (a) Legal custody of Shane D. Ginter, born January 13, 1998, shall be shared by the mother Susan A. Caldwell and the father Damen Richard Ginter. (b) Primary physical custody of Shane D. Ginter shall be with his father. (c) The mother shall have periods of temporary physical custody as follows: (i) Every summer from the first Saturday following the last day of school until the Saturday which begins the full week preceding the first day of school, except that during this period the father, upon sixty days written notice to the mother, may have Shane for up to seven days for which he shall pick Shane up from the mother's residence and return him to that residence. (ii) In Pennsylvania, from any time after school on the day before Thanksgiving until the evening before the resumption of school, with thirty days written notice to the father. (iii) In Pennsylvania, on any one weekend in any given month from Friday after school until Sunday evening before the resumption of school or Monday evening if Monday is a school holiday, with thirty days written notice to the father. (iv) During any Christmas holiday from the morning of December 26th to the evening of the day before the resumption of school, with thirty days written notice to the father. Jeanne Costopoulos, Esquire For Susan A. Caldwell By the Edgar B. Bayley, J. I? -08. 08 Diane Dills, Esquire For Damen Richard Ginter LA :sal ?- r° _i. . ?y: ,; ? ? GM? , r..r