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HomeMy WebLinkAbout06-4263 JAMES ANDREW O'BERRY, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA vs. : NO. 06- 4 J..L-3 CIVIL TERM AMY LYNN HERRINGTON, Defendant CUSTODY COMPLAINT FOR CUSTODY 1. Plaintiff is James Andrew O'Berry, hereinafter referred to as Father. Father resides at 9 West Main Street. Shiremanstown. Cumberland County, Pennsylvania 17011. 2. Defendant is Amy Lynn Herrington, hereinafter referred to as Mother. Mother resides at 1823 North Street, Harrisburg, Dauphin County, Pennsylvania 17103. 3. Father seeks primary physical custody of the minor child: Name Kaitiynn Herrington Present Residence 9 West Main Street Shiremanstown, P A Age 417/98 DOB - 8 yrs old Kaitlynn was born out of wedlock 4. Kaitiynn is in Father's custody. During her lifetime, Kaitiynn has resided with the following persons and at the following addresses: Name Address Date James O'Berry Amy Harrington Jerry Wooten Carlisle, P A birth - mid-April 1998 Amy Harrington Jerry Wooten Carlisle, P A mid-April 1998- summer 1998 Amy Harrington Ohio summer 1998 - summer 1999 Jerry Wooten Isaiah Childs, Sr. Amy Harrington North Carolina summer 1999 - summer 2001 Jerry Wooten Isaiah Childs, Sr. Amy Harrington Harrisburg, P A summer 2001 - summer 2003 Jerry Wooten Isaiah Childs, Sr. Amy Harrington Harrisburg, P A summer 2003 - June 2004 Jerry Wooten Isaiah Childs. Jr. James O'Berry Shiremanstown. P A June 2004 - August 2004 Michelle Bauer Mya Hayward Malique Hayward Mikayla Hayward Amy Harrington Harrisburg. P A September 2004 - June 2005 Jerry Wooten Isaiah Childs. Jr. James O'Berry Shiremanstown. P A June 2005 - August 2005 Michelle Bauer Mya Hayward Malique Hayward Mikayla Hayward Amy Harrington Harrisburg, P A September 2005 - December 2005 Jerry Wooten Isaiah Childs, Jr. James O'Berry Shiremanstown, P A December 2005 - January 2006 Michelle Bauer Mya Hayward Malique Hayward Mikayla Hayward Amy Harrington Harrisburg, P A February 2006 - June 2006 Jerry Wooten Isaiah Childs, Jr. Tony (unknown last name) James Q'Berry Michelle Bauer Mya Hayward Malique Hayward Mikayla Hayward Shiremanstown, P A June 2006 - present 5. Father currently resides with the following persons: Name Relationship Kaitlynn Harrington Parties' Daughter Michelle Bauer Fiancee Mya Hayward Fiancee's Daughter Malique Hayward Fiancee's Son Makayla Hayward Fiancee's Daughter 6. It is believed that Mother lives with the following persons: Name Relationship Jerry Wooten Son Isaiah Childs, Jr. Son Tony (unknown last name) Boyfriend 7. Father has not participated as a party or witness, or in another capacity, in other custody litigation concerning the custody ofKaitlynn in this or another court. 8. Father has no information of a custody proceeding concerning Kaitlynn pending in a court of this Commonwealth. 9. Father does not know of a person not a party to the proceedings who has physical custody of Kaitlynn or claims to have custody or visitation rights with respect to Kaitlynn. 10. The best interest and permanent welfare of Kaitlynn will be served by granting the relief requested for reasons including. but not limited to the following: a. Father is presently able to provide for Kaitlynn by giving her a nurturing and stable home environment and providing for her emotional, physical. medical and educational needs. b, Father works full-time during the day and his fiancee works two evenings a week. This schedule ensures that Kaitlynn and her step-siblings are always properly supervised and there is no need for outside childcare providers. c. For the past two years. Kaitlynn has spent every weekend. and any time that school is not in session, with Father. Additionally. for a two month period over the winter of 2005-2006, Kaitlynn lived with Father because Mother did not have heat in her home. On a daily basis and Father provided transportation to and from Kaitlynn's school in Harrisburg and saw to Kaitlynn's daily needs. d. Kaitlynn has a very positive, nurturing relationship with Father's fiancee and indicates her comfort and preference in living with Father and Ms. Bauer. e. Father is the parent most capable of encouraging Kaitlynn to have an ongoing relationship with the non-custodial parent. f. Father is prepared to enroll Kaitlynn in third grade in the Mechanicsburg School District for the upcoming 2006-2007 year. 11. Mother has not acted in Kaitlynn's best interests in ways including but not limited to the following: a. Mother has a serious, ongoing addiction to crack cocaine and has used while her children are in her custody. b. Mother's addiction interferes with her ability to provide for Kaitlynn's basic daily needs. Kaitlynn has advised Father that she is responsible for getting herself up for school and often wakes up and leaves for school before Mother is even awake. c. As a result of Mother's drug addiction, she is frequently unable to pay her bills. During the winter of 2005-2006, Mother's heat was turned off and Kaitlynn had to live with Father for that time period. d. When Kaitlynn is with Father, Mother does not initiate contact with Kaitlynn and does not request time to see her. Since Kaitlynn has been with Father this summer, she has spent one overnight with Mother. e. Mother currently resides in an area of Harrisburg known as Allison Hill. This area is frequently plagued with criminal activity, drug activity and violence. Mother's personal drug addiction prevents her from properly supervising Kaitlynn and exposes Kaitlynn to an increased risk for her safety and well-being. 12. Every person with rights to custody or having actual physical custody of Kaitlynn has been named as parties to this action. WHEREFORE. Father requests this Court to grant him the following relief: 1. That the parties shall share legal custody of Kaitlynn. 2. That Father shall have primary physical custody of Kaitlynn. 3. That Mother shall have periods of partial physical custody with Kaitlynn. 4. That the non-custodial parent shall have reasonable telephone contact with Kaitlynn while she is with the other parent. 5. That the parties shall have an appropriate holiday schedule to share the holidays. 6. Any other relief this Court finds just and equitable. J es ic Holst, squire Mi enn Legal Services 401 East Louther Street Carlisle, P A 17013 (717) 243-9400 VERIFICATION The above-named PLAINTIFF, James Andrew o'Berry, verifies that the statements made in the above COMPLAINT FOR CUSTODY are true and correct. plaintiff understands that false statements herein are made subject to the penalties of 18 Pa. C.S. 94904, relating to unsworn falsification to authorities. Date: {-- ~b. ~ b JAMES ANDREW O'BERRY, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA vs. : NO. 06- CIVIL TERM AMY LYNN HERRINGTON, Defendant CUSTODY AFFIDAVIT OF SERVICE BY MAIL I. Jessica Holst, do hereby swear that I served Amy Harrington with a Complaint For Custody on ~y certified mail, return receipt, restricted delivery, to the person and address below: Amy Harrington 1823 North Street Harrisburg, P A 17103 I. Jessica Holst, verify that the statements made in this Affidavit of Service are true and correct. I understand that false statements herein are made subj ect to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Date: f)(, fly a():){p Signature: >0 ~ '4 \ C) ( . ~ .\ C". c'~ r<; c 0, JAMES ANDREW O'BERRY, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA vs. : NO. 06-'IJ.I., .3 CIVIL TERM AMY LYNN HERRINGTON, Defendant : CUSTODY PRAECIPE TO PROCEED IN FORMA PAUPERIS To the Prothonotary: Kindly allow, James Andrew O'Berry, Plaintiff, to proceed in forma pauperis. I. Jessica Holst, attorney for the party proceeding in forma pauperis, certify that I believe the party is unable to pay the costs and that I am providing free legal services to the party. .~ r',~, (J\ f'-.v -,..., JAMES ANDREW O'BERRY PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Y. 06-4263 CIVIL ACTION LAW AMY LYNN HERRINGTON DEFENDANT IN CUSTODY ORDER OF COURT AND NOW, Monday, July 31, 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, fA 17011 on Friday. September 08, 2006 at 12:3~M 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 detine 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 tor 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 hearinl!. FOR THE COURT. By: Isl Melissa P. Greevy, Esq. Custody Conciliator ~ The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilites Act of 1990. For infonnation about accessible facilities and reasonable accommodations available to disabled individuals having business before the court. please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business betore the court. You must attend the scheduled conference or hearing. YOU SHOULD TAKE THIS PAPER TO YOUR ATTORNEY AT ONCE. IF YOU DO NOT HA VE AN ATTORNEY OR CANNOT AFFORD ONE. GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedlord Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 ~r ~ ~ ~ 1rJ./f, ~ ? ~ ~ 10.1-~ '5X ~ ~~~.pI) ''lo.I.P. .,<, .-' V.I \"" \\ '::1 d~,1 \'" 0,1 . I -1' -~;-:;;:::~~;:"7,,:;~:_--,:~_ "'0_/ ..1. '. ;.,. "\ v. -_~,~~ Plaintiff lc:l8~Z:6oJ ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-4263 CIVIL TERM -, JAMES ANDREW O'BERRY, v. CIVIL ACTION - LAW AMY LYNN HERRINGTON, IN CUSTODY Defendant TEMPORARY ORDER OF COURT AND NOW, this ~ day of September, 2006, upon consideration of the attached Custody Conciliation Summary Report, it is hereby ordered and directed as follows: 1. The parties, James Andrew O'Berry and Amy Herrington shall have shared legal custody of the minor child, Kaitlynn Herrington, born April 7, 1998. Each parent shall have an equal right, to be exercised jointly with the other parent, to make all major non- emergency decisions affecting the child's general well-being including, but not limited to, all decisions regarding her health, education and religion. Pursuant to the terms of 23 Pa. C. S. 95309, each parent shall be entitled to all records and information pertaining to the child including, but not limited to, medical, dental, religious or school records, the residence address of the child and of the other parent. To the extent one parent has possession of any such records or information, that parent shall be required to share the same, or copies thereof, with the other parent within such reasonable time as to make the records and information of reasonable use to the other parent. 2. Physical Custody. This Order confirms the status quo of the primary physical custody of the child in the Father, subject to rights of partial custody in Mother, which shall be arranged by mutual agreement of the parties. 3. Holidays. Holidays shall be shared by mutual agreement of the parties. In the absence of a mutual agreement, the terms of the attached holiday schedule shall supercede the regular schedule. 4. DruQ and alcohol. For a period of twelve hours before and continuing throughout any period of supervised visitation or partial custody with the minor child, the parties shall consume no alcoholic beverages nor possess or use non-prescribed controlled substances whatsoever. The parties shall likewise ensure, to the extent possible, that the other household members and/or house guests comply with this prohibition. 5. Transportation. The parent receiving custody shall provide transportation incident to the custodial exchange. Father shall not be required to wait more than thirty (30) minutes for Mother's arrival at the custodial exchange time unless Mother calls to let him \i!NVi\lASNN3d JJ.Nnry', ,'(1)YJ8V'JnCl EO :2 Wd I Z d3S SOUl l:J\,.JlO' N(\;...il"V'd :lHl :iil ^Qv,l.. I ,J. I vd...J v 3DH:lCr-G311:J " NO. 06-4263 CIVIL TERM know that she is enroute to pick up the child. If Mother is more than thirty (30) minutes late and has not called, Father shall be free to make other plans with the child. 6. Telephone contact. Both parties shall have the right to reasonable telephone contact with the child during the other party's period of custody/visitation. The child may initiate a telephone call to the non-custodial parent upon her request. Neither party shall interfere with the other party's telephone contacts with the child. Each party shall make all reasonable efforts to promptly return calls or messages left by the other party regarding the child. 7. Father shall use reasonable efforts to serve a copy of this Order upon Mother, and shall thereafter file a Return of Service with the Court. 8. This Order is temporary in nature. If Mother is agreed by the terms of the Order, a Custody Conciliation will be scheduled in ordinary course upon proper petition filed with the Court. BY THE COURT: J. Dist: ~sica Holst, Esquire, 401 E. Louther Street, Ste 103, Carlisle, PA 17013 ......-Amy Herrington, 1823 North Street, Harrisburg, PA 17103 DOCKET NO. 06-4263 HOLIDAYS AND TIMES EVEN ODD SPECIAL DAYS YEARS YEARS Easter Day From 9am the morning before the Mother Father holiday to 7pm the day of the holiday Memorial Day From 9am the morning before the Father Mother holiday to 7pm the day of the holiday Independence Day From 9am the morning before the Mother Father holiday to 7pm the day of the holiday Labor Day From 9am the morning before the Father Mother holiday to 7pm the day of the holiday Thanksgiving 1st Half From 9am the morning before Mother Mother Thanksgiving Day to 3pm on Thanksgiving Day Thanksgiving 2nd Half From 3pm on Thanksgiving Day to Father Father 9pm the day after Thanksgiving Day Christmas 1st Half From 9am on 12/24 to 3pm on 12/25 Father Father Christmas 2nd Half From 3pm on 12/25 to 3pm on 12/26 Mother Mother Mother's Day From 9am to 7pm the day of the Mother Mother holiday Father's Day From 9am to 7pm the day of the Father Father holiday :283027 r:-;"7; '~.l 'tH:T) I Plaintiff SEP 1 8 Z006 ! 13 Y : --IJ4-!I-----.::==:;c;;;.".,;",'u IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-4263 CIVIL TERM t'... JAMES ANDREW O'BERRY, v. CIVIL ACTION - LAW AMY LYNN HERRINGTON, IN CUSTODY Defendant 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 Kaitlynn Herrington April 7, 1998 Father 2. Father filed a Complaint for custody on July 26, 2006. He sought confirmation of primary custody, a holiday schedule, reasonable telephone contact and shared legal custody. A Custody Conciliation Conference was held on September 8, 2006. Present for the conference were: the Father, James Andrew O'Berry, and his counsel, Jessica Holst, Esquire. The Mother, Amy Lynn Herrington did not appear for the Conference. 3. Service of Process. Father's counsel produced documentation that the Complaint has been sent to Mother via U. S. Mail and Restricted Delivery Mail on July 26, 2006. She further produced documentation that the Order had been sent to Mother via U. S. Mail and Restricted Delivery Mail on August 2, 2006. The Restricted Delivery Mail was returned as unclaimed. The Conciliator received a voice mail from the Defendant on August 2, 2006, indicating that there was an error in her name on the caption. The Order scheduling the Custody Conciliation was clocked in at the Prothonotary's Office on August 1, 2006. This Order contains the name of the Custody Conciliator. Accordingly, it is logical to believe that Mother received the Order scheduling the Custody Conciliation Conference because she contacted the Custody Conciliator regarding her name on the caption. Therefore, she is deemed to have been served. 4. Father's position on custody is as follows: Father reports that Mother has had a history of addiction to crack cocaine. During the winter of 2005-2006, Father alleges that he had custody of the child because Mother was without heat in her home. The child stayed with him for two months, during which time Father provided transportation to her school. The child returned to Father's primary custody some time in the late spring, but no later than .. -. NO. 06-4263 CIVIL TERM June, 2006. Father continues to pay child support despite the fact that child has been in his primary custody for several months. The child is now enrolled in the Elmwood Elementary School of the Mechanicsburg School District. She has seen her Mother twice during the summer of 2006. Both occasions were initiated by the child. Father reports that the child needs dental care and needs to be added to Father's health insurance, which is available through his employment at ADM Milling. 5. Mother's position on custody is as follows: Unknown - Mother failed to attend the Conference. However, she contacted the Conciliator to report that her middle name is Christina. 6. The Conciliator recommends the attached temporary Order confirming the status quo. This order provides for periods of partial custody with Mother, arranged by the mutual agreement of the parents. The Order further requires Father to make reasonable efforts to serve a copy of the Order and file a Return of Service thereafter. Finally, this Order is temporary in nature and subject to modification, should Mother file a Petition with the Court. C}ILf-or Date . :283012