Loading...
HomeMy WebLinkAbout02-2229KIMBERLEY MURRAy SWAN, Plaintiff DWIGHT DAVID SWAN, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW IN DIVORCE NOTICE TO DEFEND AND CLAIM RIGHT~: You have been sued in court. set forth in the following pages, warned that if you fail to do so, If you wish to defend against the claims you must take prompt action. You are the case may proceed without you and a Decree of Divorce or annulment may be entered against you by the Court. A judgment may also be entered against you for any other claim or relief requested in these papers by the plaintiff. You may lose money or property or other rights important to you, including custody or visitation of your children. When the ground for the divorce is indignities or irretrievable breakdown of the marriage, you may request marriage counseling. A list of marriage counselors is available in the Office of the Prothonotary at the Cumberland County Courthouse, Carlisle, PA 17013. IF YOU DO NOT FILE A CLAIM FOR ALIMONY, DIVISION OF PROPERTY, LAWYER'S FEES OR EXPENSES BEFORE A DIVORCE OR ANNULMENT IS GRANTED, YOU MAY LOSE THE RIGHT TO CLAIM ANy OF THEM. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. ~umberland County Bar Association 2 Libert Avenue Carlisle, PA 17013 7elephone: (717) 249-3166 KIMBERLEY MURRAY SWAN, Plaintiff DWIGHT DAVID SWAN, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION LAW : IN DIVORCE COMPLAINT 1. The Plaintiff in this action is KIMBERLEY MURRAY SWAN, who currently resides at 2618 Arcona Road, Mechanicsburg, Cumberland County, Pennsylvania 17055. 2. The Defendant in this action is DWIGHT DAVID SWAN, an adult individual, who currently resides at 2618 Arcona Road, Mechanicsburg, Cumberland County, Pennsylvania 17055. 3. Both the Plaintiff and the Defendant have been bona fide residents of the Cormmonwealth of Pennsylvania for at least six (6) months iramediately previous to the filing of this complaint. 4. The Plaintiff and Defendant were lawfully joined in marriage on January 11, 1992,in Mechanicsburg, Cumberland County, Pennsylvania. 5. There have been no prior actions of divorce or for annulment between the parties hereto in this or any other jurisdiction. 6. The Plaintiff avers as the grounds upon which this action is based is that the marriage between the parties hereto is -1- irretrievably broken. 7. The Plaintiff avers that two (2) children were born of this marriage. and that require 9. vorce. The Plaintiff has been advised that COUnseling is available the Plaintiff may have the right to request that the COurt the parties to participate in COUnseling. The Plaintiff requests the COurt to enter a decree of di- I verify that the statements made in this Complaint are true and Correct. I understand that false statements herein are made subject to the penalties of 18 P.C.S. ~4904, relating to Unsworn falsification to authorities. TONE LaFAVE & SHEKLETs/i BY~ ~y~~ ~[=[~l%~'°urt/t~ #60251 ~t~oe~nd, PA 17070 ~n°n~717-774-7435 ~u~ for Plaintiff -2- KIMBERLY MURRAY SWAN, Plaintiff DWIGHT DAVID SWAN, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA - NO. 02-2229 CIVIL TERM : · CIVIL ACTION - LAW IN DIVORCE Ai~FiDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA) ) SS: COUNTY OF CUMBERLAND ) I, Elizabeth B. Stone, of Stone LaFaver & Shekletski, attorneys for the plaintiff hereby certify that I served the Complaint in Divorce in the above captioned matter on the defendant, Dwight David Swan, at 2618 Arcona Road, Mechanicsburg, PA 17055, by United States Certified Mail, postage prepaid, restricted delivery, on May 10, 2002, as evidenced by the attached Certified Mail ~eturn receipts. / ELI ~ONE At ~aw SWORN TO AND SUBSCRIBED befor~ me this //~ day of ~t~, . r -, 2002. NOTARIAL [] 0 ~ ~ ~vid ~ 2618 d ~ 17 ........ SHERIFF'S RETURN - REGULAR CASE NO: 2002-02299 p COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SANDERS VERNON D VS WIEST GUY J CPL. TIMOTHY REITZ , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to says, the within WRIT OF SUMMONS was served upon WIEST GUY J the law, DEFENDANT at 1316:00 HOURS, on the 10th day of July at 415 APPLETREE ROAD 2002 CAMP HILL, PA 17011 GUY J WIEST by handing to a true and attested copy of WRIT OF SUMMONS together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 10.35 Affidavit .00 Surcharge 10.00 .00 38.35 Sworn and Subscribed to before me this ~x_ day of ~,_ ~, ~ ~-~ A.D. ~roth~notary' ' ' So Answers: R. Thomas Kline 07/11/2002 LEE OESTERLING KIMBERLEY MURRAY SWAN, PLAINTIFF/RESPONDENT VS. DWIGHT DAVID SWAN, DEFENDANT/PETITIONER : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 02-2229 CIVIL TERM : : CIVIL ACTION - LAW : DIVORCE/CUSTODY AMENDMENT TO COMPLAINT FOR NO-FAULT DIVORCE UNDER SECTION 3301(C) OF THE DIVORCE CODE AND NOW, comes the Defendant/Petitioner, DWIGHT DAVID SWAN, by and through his counsel, Susan Kay Candiello, Esquire, of the Law Firm of Susan Kay Candiello, P.C., and files this Amendment to the Divorce action identified above, adding a count for Custody. 1. Plaintiff/Respondent is KIMBERLEY MURRAY SWAN, an adult individual, who currently resides at 3127-101 Pine Orchard Lane, Ellicott City, Maryland, 21042. 2. Defendant/Petitioner is DWIGHT DAVID SWAN, an adult individual, who currently resides at 107 East Allen Street, Apartment 10, Mechanicsburg, Cumberland County, Pennsylvania, 17055. 3. Plaintiff/Respondent filed a complaint in divorce on or about May 6, 2002. 4. Plaintiff/Respondent did not include a count for the custody of their children in that divorce complaint. 5. Defendant/Petitioner respectfully files this complaint to amend that divorce complaint to contain a custody count, as follows: o thereto. COUNT II - REQUEST FOR CONFIRMATION OF CUSTODY UNDER SECTIONS 3104(a)(2) and 3323(b) OF THE DIVORCE CODE Paragraphs 1 through 5 of this Amendment are incorporated herein by reference 7. The parties are the parents of the following children who reside with the Plaintiff and Defendant: NAME AGE SEX DATE OF BIRTH JULIANNA MARIE MURRAY SWAN 13 Years Female June 7, 1989 SCOTT ANDREW SWAN 9 Years Male August 2, 1993 8. During the past five (5) years the children have resided with the parties and at the addresses herein indicated: WITH WHOM ADDRESS FROM / TO Plaintiff/Respondent and Defendant/Petitioner 2618 Arcona Road Mechanicsburg, PA January 1996 to June 2002 During the time period of June, 2002 to September, 2002 the parties shared physical custody of the children. Plaintiff/Respondent 2618 Arcona Road Mechanicsburg, PA June, 2002 to September, 2002 Defendant/Petitioner 107 East Allen St., Apt. 10 June, 2002 to September, 2002 Mechanicsburg, PA Plaintiff/Respondent, Scott, and Plaintiff/Respondent's paramour, John 3127-101 Pine Orchard Lane Ellicott City, Maryland September 2002 to Present Defendant/Petitioner and Julianna 107 East Allen Street, Apt 10 September 2002 to Present Mechanicsburg, PA 9. Defendant/Petitioner and Plaintiff/Respondent did enter into a custody stipulation as a result of the Plaintiff/Respondent's initial divorce action. A copy of this custody agreement is attached hereto at Exhibit "A". 10. Simultaneously with the filing of this Amendment, the Defendant/Petitioner is filing a Petition for Modification of Custody Order for the first custody agreement. Defendant/Petitioner does not know of any other proceedings pending involving custody of the children in this or any other state. 11. Defendant/Petitioner knows of no person not a party to these proceedings who has physical custody of the children or who claims to have custody, partial custody or visitation rights with respect to the children. 12. The best interests of the children will be served if Plaintiff/Respondent and Defendant/Petitioner Share Legal Custody and Defendant/Petitioner has Primary Physical Custody of the parties' minor children, JULIANNA MARIE MURRAY SWAN and SCOT'F ANDREW SWAN with Plaintiff/Respondent having Partial Physical Custody of the parties' minor children, JULIANNA MARIE MURRAY SWAN and SCOTT ANDREW SWAN. WHEREFORE, Defendant/Petitioner, DWIGHT DAVID SWAN, respectfully requests that, pursuant to Sections 3104(a)(2) and 3323(b) of the Divorce Code, the Court enter an order confirming Shared Legal Custody between Defendant/Petitioner and Plaintiff/Respondent, with Defendant/Petitioner having Primary Physical Custody of the parties' minor children, JULIANNA MARIE MURRAY SWAN and SCOTT ANDREW SWAN and Plaintiff/Respondent having Partial Physical Custody of the parties' minor children, JULIANNA MARIE MURRAY SWAN and SCOTt ANDREW SWAN. Respectfully submitted, LAW FIRM OF SUSAN KAY CANDIELLO, P.C. Dated: April [[ , 2003 Susan Kay~~04 Esquire - Counsel fo~ Def~nda~tt/Petitioner PA I.D. # 5021 East Trindle Road Suitel00 Mechanicsburg PA 17050 (717) 796-~930 VERIFICATION The undersigned hereby verifies that the facts averred in the foregoing document are true and correct to the best of his knowledge, information, and belief. This verification is made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities. DATED: D-WIGHq~bAVID S-WAN EXHIBIT "A" fl\cust\swancust, agr CUSTODY AGREEMENT FOR MINOR CHILDREN ,~ This custody agreement is entered into this / day of /~.~'~]~z{~.~l~-~ , 2002, between Kimberley Murray Swan, herein- ~f%$r~;referred to as the "Mother" and, Dwight David Swan, hereinafter referred to as the "Father" W I T N E S S E T H: WHEREAS, the parties herein desire to set their intentions with respect to custody of their minor children, Julianna Marie Murray Swan and Scott Andrew Swan, in writing, WHEREAS, two children were born of this relationship, a minor female child, Julianna Marie Murray Swan, born June 7, 1989, and a minor male child, Scott Andrew Swan, born August 2, 1993; WHEREAS, it is the desire of the parties hereto to formalize their agreement with respect to the said minor children when they reside with them; AND NOW THEREFORE, the parties hereto intending to be legally bound hereby do agree that: 1. Both Mother and Father shall share legal custody of the minor children. 2. Mother shall have primary physical custody of the minor children. 3. Father shall have partial physical custody of the minor children. 4. Father shall exercise his periods of custody at any and all times as the parties may agree. -1- 5. Father shall be entitled to not less than two weeks vacation in the summer. These weeks do not need to be taken consecutively, but if the weeks are to be taken consecutively, Mother shall be notified at least 90 days in advance. 6. Father shall be permitted to have physical custody of the children during those times that the parties may agree when he is given other time off for Holidays or vacation. 7. Both parties agree to consult one another whenever a life decision is necessary with regard to the children. Life decisions affect medical, dental, orthodontia, religious, or moral decisions. Both parties agree to consult with one another whenever prudent. 8. Both parties agree that they shall always provide the other party with address, phone number, and or vacation location, when necessary. 9. Both parties agree to be as flexible as possible, whenever possible, and to always place the best interest of their children first. 10. Mother agrees to maintain the children on her health coverage and if, and when necessary, Father agrees that if Father's employment offers family coverage with no additional, or minimal cost, agrees to add the children as secondary coverage to his policy. 11. Ail unreimbursed medical bills, including, but not limited to, orthodontia, chiropractic, dental, and vision will be shared equally by the parties. 12. Visitation by the Father may be permitted as the parties shall mutually agree upon. 13. No waiver or modification of any of the terms of this agreement Shall be valid unless in writing and signed by both parties and no waiver of any breach hereof or default hereunder shall be deemed a waiver of any subsequent default of the same or similar nature. This agreement may be modified by court order. 14. This agreement shall be construed in accordance with the laws of the Commonwealth of Pennsylvania which are in effect as of the date of the execution of this agreement. Moreover, the -2- parties hereby agree that the provisions of this agreement shall be entered as a custody order in the Court of Common Pleas of Cumberland County, Pennsylvania. 15. This agreement constitutes the entire understanding of the parties regarding custody and supersedes any and all prior agreements and negotiations between them. There are no representations or warranties regarding custody other than those expressly set forth herein. 16. If any term, condition, clause, section, or provision of this agreement shall be determined or declared to be void or invalid in law or otherwise, only that term, condition, clause, section, or provision shall be stricken from this agreement, and in all other respects, this agreement shall be valid and continue in full force, effect, and operation. Likewise, the failure of any party to meet his or her obligations under any one or more of the articles and sections herein shall in no way void or alter the remaining obligations of the parties. 17. In the event either party to this agreement shall breach any term, covenant or other obligation herein, the non- breaching party shall be entitled, in addition to all other remedies available at law or in equity, to recover from the breaching party all costs which the non-breaching party may incur including, but not limited to, filing fees and reasonable attorney's fees, in any action or proceeding to enforce the terms of this agreement. IN WITNESS WHEREOF, the parties hereto intending to be legally bound have set their hands and seals on the date first above written. DWIGHT ~VID SWAN (,~EAL) Dated: -4- COMMONWEALTH OF PENNSYLVANIA counTY SS: KIMBERLEY MURRAY SWAN, being duly sworn according to law, deposes and says that she is a party named in the foregoing Custody Agreement for Minor Children and that she has executed the same for the purposes therein contained. SWORN TO AND SUBS(~RIBED befg~e me th}s ~_ day of (~//w/~7~, , 7002. COUNTY OF ~ ) DWIGHT DAVID SWAN, being duly sworn according to law, deposes and says that he is a party named in the foregoing Custody Agreement for Minor Children and that he has executed the same for the purposes therein contained. SWORN TO AND SUBSCRIBED ~ day befo-~e me th~s 0 / f Notary Public , 20~2. -5- KIMBERLEY MURRAY SWAN, PLAINTIFF VS. DWIGHT DAVID SWAN, DEFENDANT : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 02-2229 CIVIL TERM : : CIVIL ACTION - LAW : DIVORCE PRAECIPE FOR ENTRY OF APPEARANCE Please enter my appearance on behalf of the Defendant, Dwight David Swan. Dated: April /i ,2003 Respectfully submitted, LAW FIRM OF SUSAN KAY CANDIELLO, P.C. Suite 100 5021 East Trindle Road Mechanicsburg PA 17050 (717) 796-1930 KIMBERLEY MURRAY SWAN, PLAINTIFF/RESPONDENT VS. DWIGHT DAVID SWAN, DEFENDANT/PETITIONER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-2229 CIVIL TERM CIVIL ACTION - LAW CUSTODY ORDER AND NOW, this ~ day of ,2003, upon consideration of the attached Petition, it is hereby directed that the parties and their respective counsel appear before ., the conciliator, at on the ~ day of ., 2003, at o'clock _..m., for the 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 shall also be present at the conference. Failure to appear at the conference may provide for entry of a temporary or permanent order. FOR THE COURT, BY: Custody Conciliator YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle PA 17013 (717) 249-3166 1-800-990-9108 AMERICANS WITH DISABILITIES ACT OF 1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilities 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. KIMBERLEY MURRAY SWAN, PLAINTIFF/RESPONDENT VS. DWIGHT DAVID SWAN, DEFENDANT/PETITIONER : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 02-2229 CIVIL TERM : : CIVIL ACTION - LAW : CUSTODY NOTICE TO DEFEND AND CI_JkIM RIGHTS You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the defendant/petitioner. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle PA 17013 (717) 249-3166 1-800-990-9108 KIMBERLEY MURRAY SWAN, PLAINTIFF/RESPONDENT VS. DWIGHT DAVID SWAN, DEFENDANT/PETITIONER : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 02-2229 CIVIL TERM : : CIVIL ACTION - LAW : CUSTODY PETITION FOR MODIFICATION OF ,CUSTODY ORDER AND NOW, comes the Defendant/Petitioner, DWIGHT DAVID SWAN, by and through his counsel, Susan Kay Candiello, Esquire, of the Law Firm of Susan Kay Candiello, P.C., and files this Petition for Modification of Custody Order upon a cause of action of which the following is a statement: 1. The Defendant/Petitioner is DWIGHT DAVID SWAN who currently resides at 107 East Allen Street, Apartment 10, Mechanicsburg, Cumberland County, Pennsylvania, 17055. 2. The Plaintiff/Respondent is KIMBERLEY MURRAY SWAN who currently resides at 3127-101 Pine Orchard Lane, Ellicott City, Maryland, 21042. 3. Defendant/Petitioner seeks to continue Shared Legal Custody and obtain Primary Physical Custody of the following children: Name JULIANNA MARIE MURRAY SWAN SCOTr ANDREW SWAN Present Residence Date of Birth 107 East Allen St., Apt. 10 June 7, 1989 Mechanicsburg, PA 3127-101 Pine Orchard Lane August 2, 1993 Ellicott City, MD 4. Julianna Marie Murray Swan is the natural daughter of the Plaintiff/Respondent and the adopted daughter of the Defendant/Petitioner. The daughter's natural father is deceased. The daughter was adopted by the Defendant/Petitioner when the child was approximately two (2) years of age. Scott Andrew Swan is the natural child of the proxies and was born in wedlock. 5. Julianna Marie Murray Swan is presently in the Primary Physical Custody of Defendant/Petitioner who resides at 107 East Allen Street, Apartment 10, Mechanicsburg, Cumberland County, Pennsylvania, 17055. Scott Andrew Swan is presently in the Primary Physical Custody of the Plaintiff/Respondent who resides at 3127-101 Pine Orchard Lane, Ellicott City, Maryland, 21042. 6. During the past five (5) years, the children have resided with the following persons at the following addresses: Name(s) Plaintiff/Respondent and Defendant/Petitioner Address 2618 Arcona Road Mechanicsburg, PA Dates January 1996 to June, 2002 During the time period of June, 2002 to September, 2002 the parties shared physical custody of the children. Plaintiff/Respondent 2618 Arcona Road Mechanicsburg, PA June, 2002 to September, 2002 Defendant/Petitioner 107 East Allen St., Apt. 1,D June, 2002 to September, 2002 Mechanicsburg, PA Plaintiff/Respondent, Scott, and Plaintiff/Respondent's paramour, John 3127-101 Pine Orchard Lane Ellicott City, Maryland September 2002 to Present Defendant/Petitioner and Julianna 107 East Allen Street, Apt 10 Mechanicsburg, PA September 2002 to Present 7. The mother of the children is Plaintiff/Respondent who currently resides at 3127-101 Pine Orchard Lane, Ellicott City, Maryland 21042. 8. Plaintiff/Respondent is separated from the Defendant/Petitioner, but still married. Plaintiff/Respondent currently resides with her paramour, John, and the parties' child, Scott Andrew Swan. 9. The father of the children is Defendant/Petitioner who currently resides at 107 East Allen Street, Apartment 10, Mechanicsburg, Cumberland County, Pennsylvania, 17055. 10. Defendant/Petitioner is separated from the Plaintiff/Respondent, but still married. Defendant/Petitioner presently resides alone with the parties' daughter, Julianna Marie Murray Swan, with the exception of alternating weekends, when he has both his son and his daughter with him. 11. The relationship of the Plaintiff/Respondent to the children is that of natural mother. The Plaintiff/Respondent currently resides with her paramour, John, in addition to the parties' son, Scott Andrew Swan. 12. The relationship of the Defendant/Petitioner to the child Scott Andrew Swan is that of natural father. The relationship of the Defendant/Petitioner to the child Julianna Marie Murray Swan is that of adoptive father. The daughter's natural[ father is deceased. The daughter was adopted by the Defendant/Petitioner on or about the time the child was two (2) years old. The Defendant/Petitioner currently resides with the parties' daughter, Julianna Marie Murray Swan. 13. Defendant/Petitioner has participated as a party in a prior custody agreement concerning the custody of the children resulting in a custody agreement dated August 9, 2002, a copy of which is attached hereto and made a part hereof as Exhibit "A". 14. Defendant/Petitioner has no information of a custody proceeding concerning the children pending in a court of this Commonwealth at this time. 15. Defendant/Petitioner does not know of a person ]not a party to the proceedings who has physical custody of the children or claims to have custody or visitation rights with respect to the children. 16. The best interests and permanent welfare of the children will be served by granting the relief requested because: A. Defendant/Petitioner has great love and concern for both his daughter and his son with whom he spends as much time as he is able; B. The daughter, Julianna, has always attendect Harrisburg Academy, a private school, primarily through the use of the child's :social security income, a benefit from her deceased natural father. Julianna does not want to leave the Mechanicsburg area and Harrisburg Academy to move to Maryland; C. The son, Scott, initially moved to Maryland with the Plaintiff/Respondent, but Defendant/Petitioner believes, if provided the opportunity to share his feelings, Scott would prefer to move back to Mechanicsburg Elementary school, where his friends are and where he has attended school since beginning school until Plaintiff/Respondent moved and took Scott with her in September, 2002; D. The parties' children, Julianna and Scott, are very close and it is the belief of the Defendant/Petitioner they miss each other tremendously and would both prefer to be living with each other on a daily basis; E. Both children, prior to the move of the Plaintiff/Respondent to Maryland, were very active in school activities and the Youth Groups in their church, Shepherdstown United Methodist Church. On alternating weekends, the Defendant/Petitioner, the daughter, and the son continue to be active with their church; F. Plaintiff/Respondent had stated to the daughter, if she kept her grades up she could continue to reside in Mechanicsburg with the Defendant/Petitioner and attend the Harrisburg Academy. Daughter has in fitct improved her grades while being with the Defendant/Petitioner, yet Plaintiff/Respondent has now stated to the daughter she is moving to Maryland in June, 2003. The daughter does not want to move; G. The Defendant/Petitioner believes it is in both the children's best interests to reside with him and attend their same schools, church, and extracurricular activities; H. The Defendant/Petitioner has a stable home and stable employment which enables him to be with his children the majority of the time they are not in school and day care. 17. Each parent whose parental rights to the children have not been terminated and the person who has physical custody of the children have been named as parties to this action. WHEREFORE, Defendant/Petitioner, DWIGHT DAVID SWAN, requests this Honorable Court to grant both Defendant/Petitioner, DWIGHT DAVID SWAN, and Plaintiff/Respondent, KIMBERLEY MURRAY SWAN, Shared Legal Custody, and Defendant/Petitioner, DWIGHT DAVID SWAN, Primary Physical Custody and Plaintiff/Respondent, KIMBERLY MURRAY SWAN, Partial Physical Custody of the parties' two (2) minor children, JULIANNA MARIE MURRAY SWAN and SCOTT ANDREW SWAN. Dated: April i ( , 2003 Respectfully subnfitted, LAW FIRM OF SUSAN KAY CANDIELLO, P.C. n Kay ~'dli?~qEsquire ~ Counsel fo~ Defendant~Petitioner 5021 East Trindle Road Suite 100 Mechanicsburg PA 17050 (717) 796-1930 VERIFICATION The undersigned hereby verifies that the facts averred irt the foregoing document are true and correct to the best of his knowledge, information, and belief. This verification is made subject to the penalties of 18 Pa. C.S.A. {}4904 relating to unsworn falsification to authorities. Dw~G~.~vID-SW-AN - EXHIBIT "A" fl\cust\swancust.agr CUSTODY AGREEMENT FOR MINOR CHILDREN ., This~g~stody agreement is entered into this / day of /~?]~/~' , 2002, between Kimberley Murray Swan, herein- after~eferred to as the "Mother" and, Dwight David Swan, hereinafter referred to as the "Father" W I T N E S S E T H: WHEREAS, the parties herein desire to set their intentions with respect to custody of their minor children, Julianna Marie Murray Swan and Scott Andrew Swan, in writing, WHEREAS, two children were born of this relationship, a minor female child, Julianna Marie Murray Swan, born June 7, 1989, and a minor male child, Scott Andrew Swan born August 2 1993; , , WHEREAS, it is the desire of the parties hereto to formalize their agreement with respect to the said minor children when they reside with them; AND NOW THEREFORE, the parties hereto intending to be legally bound hereby do agree that: 1. Both Mother and Father shall share legal custody of the minor children. 2. Mother shall have primary physical custody of the minor children. 3. Father shall have partial physical custody of the minor children. 4. Father shall exercise his periods of custody at any and all times as the parties may agree. -1- 5. Father shall be entitled to not less than two weeks vacation in the summer. These weeks do not need to be taken consecutively, but if the weeks are to be taken consecutively, Mother shall be notified at least 90 days in advance. 6. Father shall be permitted to have physical custody of the children during those times that the parties may agree when he is given other time off for Holidays or vacation. 7. Both parties agree to consult one another whenever a life decision is necessary with regard to 'the children. Life decisions affect medical, dental, orthodontia, religious, or moral decisions. Both parties agree to consult with one another whenever prudent. 8. Both parties agree that they shall always provide the other party with address, phone number, and or vacation location, when necessary. 9. Both parties agree to be as flexible as possible, whenever possible, and to always place the best interest of their children first. 10. Mother agrees to maintain the children on her health cowerage and if, and when necessary, Father agrees that if Father's employment offers family coverage with no additional, or minimal cost, agrees to add the children as secondary coverage to his policy. 11. Ail unreimbursed medical bills, including, but not limited to, orthodontia, chiropractic, dental, and vision will be shared equally by the parties. 12. Visitation by the Father may be permitted as the parties shall mutually agree upon. 13. No waiver or modification of any of the terms of this agreement shall be valid unless in writing and signed by both parties and no waiver of any breach hereof ,Dr default hereunder shall be deemed a waiver of any subsequent default of the same or similar nature. This agreement may be modified by court order. 14. This agreement shall be construed in accordance with the laws of the Commonwealth of Pennsylvania which are in effect as of the date of the execution of this agreement. Moreover, the -2- parties hereby agree that the provisions of this agreement shall be entered as a custody order in the Court of Common Pleas of Cumberland County, Pennsylvania. 15. This agreement constitutes the entire understanding of the parties regarding custody and supersedes any and all prior agreements and negotiations between them. There are no representations or warranties regarding custody other than those expressly set forth herein. 16. If any term, condition, clause, section, or provision of this agreement shall be determined or declared to be void or invalid in law or otherwise, only that term, condition, clause, section, or provision shall be stricken from this agreement, and in all other respects, this agreement shall be valid and continue in full force, effect, and operation. Likewise, the failure of any party to meet his or her obligations under any one or more of the articles and sections herein shall in no way void or alter the remaining obligations of the parties. 17. In the event either party to this agreement shall breach any term, covenant or other obligation herein, the non- breaching party shall be entitled, in addition to all other remedies available at law or in equity, to recover from the breaching party all costs which the non-breaching party may incur including, but not limited to, filing fees and reasonable attorney's fees, in any action or proceeding to enforce the terms of this agreement. COMMONWEALTH OF PENNSYLVANIA COUNTY OF ~L~z~,7~w_,~_,~/~/ SS: KIMBERLEY MURRAY SWAN, being duly sworn according to law, deposes and says that she is a party named in the foregoing Custody Agreement for Minor Children and that she has executed the same for the purposes therein contained. SWORN TO AND SUBSCRIBED befo.re me this 7 day ~ot~ary Public / ', Z~,.,~-~, .~. ~.' ,. ,,,, . . ~:,., ~, .... ,./,. KIMBERL~Y//MURR~ SW, A~/' NOTARIAL SEAL ?ATRigl-.!IP, L. YOTER, Notary New !',umbedand Boio. Cumb(d,{ni~ ,%' C¢,mmisabn Expires ~'~Io,,'. I8, COMMONWEALTH OF PENNSYLVANIA )  ~ ,' ) SS COUNTY OF .'~.¢~.,~") DWIGHT DAVID SWAN, being duly sworn according to law, deposes and says that he is a party named in the foregoing Custody Agreement for Minor Children and that he has executed the same for the purposes therein contained. SWORN TO AND SUBSCRIBED ~2 day befo.~.e me this >'"-,,~, Notary Public DW~G.HT O~'VID SWAN " -5- KIMBERLEY MURRAY SWAN PLAINTIFF DWIGHT DAVID SWAN DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-2229 CIVIL ACTION LAW IN CUSTODY ORDER OF COURT AND NOW, Thursday, April 17, 2003 , upon cortsideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear before Dawn S. Sunday, Esq. , the conciliator, at 39 West Main Street, Mechaniesburg, PA 17055 on Tuesday, May 20, 2003 at 8:30 AM for a Pre-Hearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute; or if this cannot be accomplished, to define and narrow the issues to be heard by the court, and to enter into a temporary order. All children age five or older may also be present at the conference. Failure to appear at the conference may provide grounds for entry of a temporary or permanent order. The court hereby directs the parties to furnish any and all existing Protection from Abuse orders, Special Relief orders, and Custody orders to the conciliator 48 hours prior to scheduled hearing. FORTHECOURT~ By: /s/ Dawn S. Sunday, Esq. Custody Conciliator The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilites Act of 1990. For information about access, ible 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 TillS 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 KIMBERLY MURRAY SWAN, Plaintiff VS. DWIGHT DAVID SWAN Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-2229 CIVIL ACTION LAW IN CUSTODY ORDER OF COURT AND NOW, this ~ day of ~~ , 2003, upon consideration of the attached Custody Conciliation Report, it ii ordered anXd directed as follows: 1. The parties shall arrange for the Children to participate in counseling with a professional selected by agreement. The purpose of the counseling shall be to assist the parties in identifying the Children's needs and preferences with respect to the custody schedule and provide guidance to the parties in making decisions concerning the Children's primary residence(s). The parties shall follow the recommendations of the counselor with regard to the number of sessions, and the participants in each session. All costs of counseling which are not covered by insurance shall be shared equally between the parties. The parties agree to share transportation for all counseling sessions to the extent possible. 2. The parties shall have shared legal custody of the Children. Each parent shall have an equal right, to be exercised jointly with the other parent, to make all major non-emergency decisions affecting the Children's general well-being including, but not limited to, all decisions regarding their health, education and religion. Pursuant to the terms of this paragraph each parent shall be entitled to all records and information pertaining to the Children including, but not limited to, school and medical records and information. 3. Pending further agreement of the parties or Order of Court, the parties shall continue to follow the existing custody schedule for the school year under which the Father has primary physical custody of Julianna, the Mother has primary physical custody of Scott, and the parties alternate having custody of both Children on weekends. 4. During the summer school break in 2003, the Father shall have custody of the Children from June 4 through June 8, June 13 through June 15, June 27 through July 3, July 20 through July 29 and August 9 through August 24. The Mother shall have custody of the Children at all other times not specified for the Father in this provision. 5. The Father shall make appropriate day camp or other arrangements for Scott's care when the Father is working during his periods of custody in the summer. The parties may agree to adjust the summer custody schedule in the event the Father is unable to make arrangements for Scott's care and the Mother is otherwise available. 6. The parties and counsel shall attend an additional conference in the office of the conciliator, Dawn Sunday, on Thursday, July 3, 2003 at 10:30 am for the purpose of establishing ongoing custody arrangements with the benefit of the additional information and guidance provided by the counselor. 7. This Order is entered pursuant to an agreement of the parties at a Custody Conciliation Conference. The parties may modify the provisions of this Order by mutual consent. In the absence of mutual consent, the terms of this Order shall control. cc~_~abeth B. Stone, Esquire - Counsel for Mother .~ousan K. Candiello, Esquire - Counsel for Father Jo KIMBERLY MURRAY SWAN, : Plaintiff : : vs. : 02-2229 DWIGHT DAVID SWAN : Defendant : IN CUSTODY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW 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 Children who are the subjects of this litigation is as follows: NAME Julianna Made Murray-Swan Scott Andrew Swan DATE OF BIRTH CURRENTLY IN CUSTODY OF June 7, 1989 Father August 2, 1993 Mother 2. A Conciliation Conference was held on May 20, 2003, with the following individuals in attendance: The Mother, Kimberly Murray-Swan, with her counsel, Elizabeth Stone, Esquire, and the Father, Dwight David Swan, and his counsel, Susan K. Candiello, Esquire. 3. The parties agreed to entry of an Order in the form as attached. Date Daw~'uire~ Custody Conciliator KIMBERLY MURRAY SWAN, Plaintiff VS. DWIGHT DAVID SWAN Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-2229 CIVIL ACTION LAW IN CUSTODY ORDER OF COURT AND NOW, this ~cc[~ day of~ l ~~~,,.~ , 2003, upon consideration of the attached Custody Conciliation t~ep~Jrt, it is ordered and directed as follows: 1. A hearing is schedgled in Courtroo!I3 No. ~ irt the Cumberland County Courthouse on the ~3 e.~ day of (_}d:f~-{.xg~ ,2003, at t/.'~ O o'clock S_~__m, at which time testimony will be taken. For purposes of the hearing, the Father, Dwight David wan, shall be deemed to be the moving party and shall proceed initially with testimony. Counsel for the parties shall file with the Court and opposing counsel a memorandum setting forth each party's position on custody, a list of witnesses who are expected to testify at the hearing, and a summary of the anticipated testimony of each witness. These memoranda shall be filed at least ten days prior to the hearing. 2. The parties shall have shared legal custody of the Children. Each parent shall have an equal right, to be exercised jointly with the other parent, to make all maj,or non-emergency decisions affecting the Children's general well-being including, but not limited to, all decisions regarding their health, education and religion. Pursuant to the terms of this paragraph each parent shall be entitled to all records and information pertaining to the Children including, but not limited to, school and medical records and information. 3. Pending further agreement of the parties or Order of Court, the parties shall continue to follow the existing custody schedule under which the Mother has primary physical custody of Scott, the Father has primary physical custody of Julianna, and the parties alternate having custody of both Children on weekends from Friday at 8:00 pm through Sunday at 5:00 pm. The weekend schedule shall continue as alternated under the existing schedule. The parties shall cooperate in making any necessary adjustments to ensure that the Children are available for all scheduled soccer/field hockey games. 4. Pending the hearing unless otherwise agreed, the parties shall have custody of both Children over holidays as follows: A.CHRISTMAS: In 2003 the Father shall have custody from 6:00 pm on the last day of school before the vacation break through December 26th at 6:00 pm and the Mother shall have custody from December 26th at 6:00 pm through December 31 at 12:00 noon. The Father shall have custody from December 31st at 12:00 noon through his regular weekend period of custody. B.THANKSGIV1NG: In 2003, the Mother shall have custody of the Children from the last day of school before the holiday break at 6:00 pm through the day before school resumes at 6:00 pm. 5. In the event the parties agree that an additional conciliation conference would be useful in resolving the outstanding custody issues without need for the hearing, counsel for either party may contact the conciliator to schedule a conference. Edgar B. Bayley cc,7Eli~eth B. Stone, Esquire - Counsel for Mother ?~fisan K. Candiello, Esquire - Counsel for Father KIMBERLY MURRAY SWAN, Plaintiff VS. DWIGHT DAVID SWAN Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-2229 CIVIL ACTION LAW IN CUSTODY Prior Judge: Edgar B. Bayley 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 Children who are the subjects of this litigation is as follows: NAME Julianna Marie Murray-Swan Scott Andrew Swan DATE OF BIRTH CURRENTLY IN CUSTODY OF June 7, 1989 Father August 2, 1993 Mother 2. A Conciliation Conference was held on August 14, 2003, with the following individuals in attendance: The Father, Dwight David Swan, with his counsel, Susan K. Candiello, Esquire and the Mother's counsel, Elizabeth Stone, Esquire. The Mother, who currently resides in the Baltimore area and is in the late stages of pregnancy, participated in the conference by telephone. 3. This Court previously entered an Order on May 27, 2003, upon agreement of the parties at a prior conciliation conference, under which the parties were to obtain counseling for the Children in order to identify their needs and preferences with regard to the custody schedule and obtain guidance in making decisions regarding primary custody for the children. Pending completion of the counseling process, the existing custody arrangement was to continue under which the parties' fourteen year old daughter would to reside with the Father in Mechanicsburg, where she was attending school at the Harrisburg Academy, and the parties' ten year old son would reside with the Mother in Baltimore, where the son had been attending school. The parties selected a counselor who was located halfway' between the parties' residences and upon receipt of the counselor's recommendations, counsel scheduled a follow up conciliation conference. The counselor's recommendation that the Children reside together in the Mother's primary care in the Baltimore area were discussed at the conference. However, the parties were not able to reach an agreement and it will be necessary to schedule a hearing. Although the parties agreed that their ten year old son, Scott, would continue to reside with the Mother in Baltimore pending the hearing, there was a dispute as to interim arrangements and school enrollment for the parties' fourteen year old daughter, Julianna. Until this year, Julianna has been attending school at the Harrisburg Academy, which was the reason the Mother agreed to her continued residence in Pennsylvania through the end of the 2002-2003 school year. However, as the parties are not able to pay tuition at the Academy for the upcoming school year, they agreed Julianna will transfer to public school. 4. The Father's position on custody is as follows: The Father believes it would be in the best interest of the Children to reside together at the Father's residence. The Father's request for primary custody is based primarily on Julianna's strongly expressed desire to continue residing in Mechanicsburg, where she had resided throughout the parties' marriage and had attended school at the Harrisburg Academy. As acknowledged by both parties and the counselor, Julianna continues to express a strong desire to remain in the Mechanicsburg area where her friends live, despite the fact that she will be transferring to Mechanicsbnrg High School. The Father stated that Juliarma needs the stability offered by continued residence in Mechanicsburg at the present time. The Father pointed out that her grandparents reside in Mechanicsburg as well. The Father believes that it is important for the Children to reside together and that a change in primary custody would not be detrimental for Scott. The Father indicated that he did not have confidence in the counselor's recommendations and he believes that she was biased toward the Mother from the beginning. 5. The Mother's position on custody is as follows: The Mother believes it would in the Children's best interest to reside in her residence in the Baltimore area, where the Mother currently resides with the parties' son, the Mother's fianc~ and their newborn child. The Mother believes Julianna's strong preference to continue residing in Mechanicsburg is based on her desire to maintain her friends from the Harrisburg Academy, which the Mother feels will lessen as a result of the transfer to Mechanicsbnrg High School. The Mother also expressed concem that Julianna feels responsible for the Father and would feel guilty if she left him alone and moved to the Mother's residence. The Mother believes that the parties should follow the counselor's recommendations and rely on her expertise in determining the bases for Julianna's expressed preference. The Mother is confident that Julianna would adjust quickly to school and primary residence irt the Baltimore area if required to do SO. 6. The conciliator submits an Order in the form is attached scheduling a hearing in this matter and providing temporary arrangements as directed by the Court pending the hearing. It is expected that the hearing will require at least one-half to one full day. Date Dawn S. Sunday, Esquil(._J Custody Conciliator KIMBERLY MURRAY SWAN : IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA DWIGHT DAVID !SWAN AND NOW, this : 02-2229 CIVIL TERM IN RE: CUSTODY ORDER OF COURT (1) All pri~)r custody orders are vacated and replaced with this order. (2) Kimb~rly Murray Swan and Dwight David Swan shall have joint legal custody of Julianna Swar~, born June 7, 1989, and Scott Swan, born August 2, 1993. )ther shall have primary physical custody of Scott and the father shall (3) The have primary pi (4) Durin alternatively witt~ ~ical custody of Julianna. the school year the children shall be together on weekends each parent from Friday after school until Sunday evening, or Monday if Monday is a school holiday. evening Durin~ each summer school vacation period, the children shall be together, (5) unless the parer equal amount ot prior to the end, (6) The day of school u with their mothe on the Tuesday (7) The ts agree otherwise for activities such as camp, and shall spend an time with each parent. These periods to be arranged by the parents f each school year. ~rents shall alternate Thanksgiving from the evening following the last til the evening before school resumes. In 2003, the children shall be and for this year only Julianna shall start this period from after school vening before the Thanksgiving break. ~arents shall divide the Christmas holiday period. day of November, 2003, IT IS ORDERED: 02-2229 CIVIL TERM (8) The parents shall share transportation of the children. By the C~,~///~ Elizabeth B. Stone, Esquire For Kimberly Mulray Swan Susan Kay Can(~iello, Esquire For Dwight David Swan :sal -2- KIMBERLY MURRAY SWAN V. ! DWIGHT DAV Di SWAN Bayley, J., Now Kimberly parents of Julian born August 2, 1 separated on Ju parents lived wit father now lives seven years as a short distance Ellicott City, Mar a half, ninety mil At separa moved into an a contact with the separation. She unsuccessful. S ~ The father adol motorcycle acci¢ : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : 02-2229 CIVIL TERM IN RE: CUSTODY OPINION AND ORDER OF COURT ~mber 3, 2003:-- ~lurray Swan, age 33, and Dwight David Swan, age 37, are the na Swan, age 14, born June 7, 1989, and Scoff Swan, age 10, 993.4 The parents were married on January 11, 1992, and ~e 1, 2002. A divorce action is pending. Until separation the their (~hildren in Mechanicsburg, Cumberland County. The n a three bedroom home in Mechanicsburg. He has worked for ~n applications engineer for Envirpp, Inc., in Camp Hill, which is I:rom his home. The mother now lives in a four bedroom home in 'land, a suburb to the west of Baltimore. Ellicott is an hour and ~ drive from Mechanicsburg. [ion the mother initially remained in the marital home. The father )artment. The children lived with the mother but had regular ~ather. The mother is an accountant but was not employed at tried to obtain a good full-time job in this area but was he has friends in Maryland who helped her find a full-time job ~ted Julianna in 1994. Her natural father was killed in a ient in June, 1990. 02-2229 CIVIL TERM there making $33,000 a year as a business manager in a design firm. She decided to moveland informed the father. They entered into a written custody agreement on A~gust 9, 2002, to share legal custody with her having primary physical custodyiof both children and him having periods of temporary physical custody. The moth beginning of Se[ custody agreem, Harrisburg Acad would complete to her father's h( the children are mother every ott weekend in Mec Shrewsbury, Yo~ twelve weeks of in camp, four an their mother. The moth to their daughter with them every left her job in Ms work. She inten ~r started employment in Maryland and moved there in the ,tember, 2002. She took Scott with her. Notwithstanding their mt, the parents decided that Julianna, who had gone to the ~my, a private school near Mechanicsburg, since kindergarten, ~er last elementary year there in eighth grade. Julianna moved ,me and entered eighth grade at the Academy. Since that time :ogether on weekends during the school year. Julianna visits her ~er weekend in Maryland, and Scott visits his father every other ~anicsburg. The parents exchange the child making the visit in County, which is halfway between their residences. During the ummer school vacation in 2003, the children spent some weeks a half weeks with their father and the rest of the weeks with met John Maisel at the end of October, 2002. She gave birth on August 18, 2003. Maisel has a four-year-old daughter who is 3ther weekend when Julianna and Scott are there. The mother ryland to have her baby and has no plans to go back to full-time ~s to freelance out of her home. She and Maisel recently moved -2- 02-2229 CIVIL TERM into a larger home and they are looking to move again in the same area and school district where they now live. Scott is in fifth grade and doing well. He plays soccer. H~ has made new friends. He is healthy, happy and thriving. When Juli~nna was nearing the end of eighth grade she decided that she wanted to continae living with her father. He filed a complaint for custody on April 14, 2003, conciliation con maintaining the regarding custo~ Mechanicsburg returned to con( Another order w~ custody and mai October 8 and 1~ When the maker in the fan' Maryland she is of her school eve confides in her. of her parents h~ generally health addressed as th 2 Those conditior cholesterol and ,~eking primary physical custody of her and Scott. Following a ;rence, a temporary order was entered on May 27, 2003, ;tatus quo while the parents sought counseling and advice of the children. Juiianna started ninth grade in the :heel District. After a counselor issued a report, the case was liation but the parties were unable to reach an agreement. ente~'ed on September 3, 2003, providing shared legal ~taining the status quo pending litigation which occurred on 2003. ~arents lived together the mother was the primary decision ly, and the primary caretaker of the children. Since moving to ~till closely involved in Julianna's life. The mother attends many ~nts. She talks to her almost every day on the phone. Julianna Julianna has a good relationship with her father. The separation made that relationship stronger. Julianna is outgoing. She is The medical problems she has are being adequately have been in the past? She is a good student. She plays s are some vertigo, joint problems, a hearing problem, high ~oderate acne. -3- 02-2229 CIVIL TERM field hockey at school. The father, mother and children attended the Shepherdstown United Methodist Church where the father continues to attend as does Julianna arid Scott when they are with him. Julianna is in a church youth group that meets~ once and sometimes twice a week. The children attend church with the mother ~vhen they are in Maryland. Julianna is close to her maternal grandparents wino live near her father's home. She sees them once or twice each week. The father I~as maintained a good relationship with those grandparents. | The fathetworks weekdays from about 8:30 a.m. to 5:00 p.m., although he worked Ionge~' hours when he was living with the mother. He has some flexibility in his s home. Since Au day. Before thal two of his socc~ the mother did ~ to Maryland. He with John Maise: mother has stop ended. He beli~ well as the moth be respected an~ The moth ~ He and the mot :hedule. He cooks for the children. Julianna has chores in his ust of 2003, the father talks to Scott by phone almost every had been one or two days a week. The father has gone to games and to a school concert in Maryland. He believes that 3t act in the best interest of Julianna and Scott when she moved does not believe that she is a good role model in having a baby when she is still married to him.3 He notes that now that the ed working full-time her reason for moving to Maryland has ~ves he can provide for all aspects of the children's needs as .~r can. He believes that Julianna's desire to live with him should that the children should not be separated. ,r testified that when she and the father agreed that Julianna ~er did live together before they were married. -4- 02-2229 CIVIL TERM would complete her last elementary year at the Harrisburg Academy, they had an understanding that she would then come to live with her in Maryland. Before Julianna decided~ that sl~e wanted to continue living with her father in Mechanicsburg, ~he and Julianna looked at several schools in Maryland which included private that when Julian more defiant witl things are better with John Maise= better provide fo believes that the We talkec Julianna told us favorite subject She loves the tc initially separate~ in the area. All ~ relationship with doing anything." separated. The parer recommendatior licensed therapi,, schools. Julianna picked a public school. The mother testified la decided that she wanted to stay with her father she became ~ her. Julianna started seeing a therapist in May of this year and now. She testified that Scott and Julianna both get along well The mother believes the father is too rigid and that she can all aspects of the children's needs than can the father. She children, who get along well, should not be separated. to Scott in chambers. He is a happy boy who is doing fine. chambers that she loves school, gets ^'s and B's, and that her French. She wants to live with her father in Mechanicsburg. vn and has lived in this area all her life. When her parents she thought both her mother and father would continue to live .~r friends live here. Her grandparents live here. Her her dad is "great" although her mother "thinks he is incapable of She and her dad have become closer since her parents ts retained a counselor, Michelle Norris, to provide a regarding custody. She has a Masters Degree and is a t in the State of Maryland. Norris met with the various family -5- 02-2229 CIVIL TERM members on nine occasions. She concluded that the father and the mother are both fit and loving parents who can provide a stable home for the children. She found Julianna te be intelligent, articulate, mature in some ways, but emotionally immature. The mother testified that the father is difficult to communicate with regarding the children as he was generally difficult to communicate with during their marriage. concern as to th Scott were to liv mother. She be okay if they are. of the opinion th will best be met In SwopE Pennsylvania sE concern in a chi consideration of moral and spiritt expert but we ar 336 Pa. Super. Supreme Court CU th~ int A.: re; ~lorris testified that this frustrates the mother and raises a ~ father's ability to be a cooperative co-parent if Julianna and ; with hkn. Norris testified that Scott wants to remain with his ieves that the children should not be split, but that they will be While Julianna wants to continue living with her father, Norris is at the emotional, educational and social needs of both children if they live primarily with their mother. v. Swope, 689 A.2d 264 (1997), the Superior Court of forth the standard in Pennsylvania that "[t]he paramount custody case is the best interest of the child, based on a factors that legitimately affect the child's physical, intellectual, iai well-being." We are to consider the opinion offered by an not ol~ligated to follow that opinion. Rinehimer v. Rinehimer, t6 (1984). In McMillen v. McMillen, 529 Pa. 198 (1992), the )f Pennsylvania stated: Although the express wishes of a child are not contrelling in ;tody decisions, such wishes do constitute an important factor ~t must be carefully considered in determining the child's best .~rest. Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 426 !d 555 (1981). The child's preference must be based on good ~sons, and the child's maturity and intelligence must be -6- 02-2229 CIVIL TERM considered. Id.; Commonwealth ex rel. Holschuh v. Holland-Mo#tz, 448 Pa. 437, 292 A.2d 380 (1972). The weight to be given a child's testimony as to his preference can best be determined by the judge be In Wisko: stated: thi wi' (1~ ab otl "G di., de ev ch c) Afl 15 rai stE In the pn the prior agreerr who love each the year since relationship with go with the moff with her father significantly ch; and he has prov 'ore whom the child appears. See Lombardo v. Lombardo, 515 .139, 146, 527 A.2d 525, 529 (1987),, citing Commonwealth ex Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635, 637 (1977). ~ki v. Wiskoski, 427 Pa. Super. 531 (1993), the Superior Court Absent compelling reasons to the contrary, it is the policy of ; Commonwealth that siblings should be raised together enever possible. Pilon v. Pilon, 342 Pa. Super. 52, 492 A.2d 59 t85) .... While this factor cannot be elevated automatically ~ve all other factors, it must be weighed in conjunction with the ~ers. [In re Davis, 502 Pa. 110 (1983)]. (Emphasis added.) ~od reasons" are not necessarily "compelling" reasons for rupting the integrity of a family unit. Pi/on v. Pi/on, supra. "In r~ning the phrase 'compelling reasons' this court has said that the dence must indicate that it was 'necessary' to separate the Idren, and the evidence was 'forceful' in this regard." Cyren v. ran, 389 Pa. Super. 128, 132, 566 A.2d 878, 880 (1989), citing ~fight v. Commonwealth ex re/. Fetters, 491 Pa. 320, 421 A.2d ~' (1980). Absent compelling reasons, "the children should be Bed tog6ther in one household, for this permits the continuity and bility necessary for a young child's development." Pi/on v. Pi/on, )ra, 342 Pa. Super. at 56, 492 A.2d at 60. sent case the family unit has been disrupted for over a year by ent of the parents. Julianna and Scott are both good children Iher and love each of their parents. '['hey have both done well in ey were separated. Both parents have a close, loving each of them. After the parents agreed that both children would er to Maryland, the mother's decision to allow Julianna to live ~hile going to eighth grade at the Harrisburg Academy has lged things for Julianna. She had become closer to her father ed to be capable in caring and providing for her. To the mother's -7- 02-2229 CIVIL ~ERM credit her continued involvement in all aspects of Julianna's life have helped make this possible. Julianna is an age appropriate impressionable teenager who is now thriving ir~ ninth grade in the Mechanicsburg School District. She is with her brother ever~ weekend and for extended periods during the summer. It is hardly surprising that at this stage of her life that she wants to stay with her father in a situation wh grandparents ar church activities factor. Scott is able to maintair unique facts, it i~ their well-being 1 for Julianna to Ii, custody of Scott parents will coo continue to thri~ For the fc AND NO~ (1) All pr (2) Kimb~ of Julianna Swa ~re (1) she is comfortable and well cared for, (2) her .~ nearby, (3) she loves school, (4) she is actively involved in and (5) she has good friends. Her feelings are an important Ioing vet well with his mother. The parents have both been significant contact with the child not living with them. On these ~ in the best interest of the children with respect to all aspects of hat the status quo remain. Thus there are compelling reasons re with her father. Doing so does not warrant changing the from the home of his mother. We are comfortable that both ,erate and provide the flexibility necessary for the children to .~going reasons, the following order is entered. ORDER OF COURT V, this ~/~;~--~ day of November, 2003, IT IS ORDERED: or custody orders are vacated and replaced with this order. ;rly Murray Swan and Dwight David Swan shall have joint legal custody born June 7, 1989, and Scoff Swan, born August 2, 1993. -8- 02-2229 CIVIL TERM (3) The mother shall have primary physical custody of Scott and the father shall have primary physical custody of Julianna. (4) Durin~ the school year the children shall be together on weekends alternatively witl~ each p.arent from Friday after school until Sunday evening, or Monday evening if Monday is a school holiday. (5) During each summer school vacation period, the children shall be together, unless the parer ~ts agree otherwise for activities such as camp, and shall spend an equal amount oi time with each parent. These periods to be arranged by the parents prior to the end ~ )f each school year. (6) The arents shall alternate Thanksgiving from the evening following the last day of school u~ til the evening before school resumes. In 2003, the children shall be with their mothe and for this year only Julianna shall start this period from after school on the Tuesday vening before the Thanksgiving break. (7) The arents shall divide the Christmas holiday period. (8) The arents shall share transportation of the children. By the Edgar B. Bayley, J. Elizabeth B. St( For Kimberly ML Susan Kay Can~ For Dwight Davi :sal ~e, Esquire rray Swan liello, Esquire Swan -9- KIMBERLY MURRAY SWAN, Plaintiff Vo DWIGHT DAVID SWAN, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 02-2229 CIVIL TERM : CIVIL ACTION LAW : IN DIVORCE PRA~CIPE TO THE PROTHONOTARY: Please withdraw the divorce complaint filed on behalf of the plaintiff, KIMBERLY MURRAY SWAN, in the above captioned matter. STONE LaFAVER & SHEKLETSKI By' E1 Law ~e St. Box E PA 17070 one: 435 AT{ PLAINTIFF