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HomeMy WebLinkAbout01-5502SANDRA L. KIRBY~ Plaintiff DAVID R. KIRBY, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND~COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. Of- ~-~-~ CIVIL TERM : IN CUSTODY PETITION FOR CUSTODY NOW comes the plaintiff, Sandra L. Kirby, by her attorney, Harold S. Irwin, III, Esquire, and presents the following complaint for custody, representing as follows: 1. The plaintiff is Sandra L. Kirby, an adult individual residing at 64 Mountain View Terrace, Newville, Cumberland County, Pennsylvania 17241. 2. The defendant is David R. Kirby, an adult individual residing at 249 High Street, Abbottstown, Adams County, Pennsylvania 17301. 3. The parties are the parents of two minor children, namely Michael D. Kirby (born January 7, 1991, age 10 years) and Christina L. Kirby (born November 17, 1993, age 7). 4. The children resided with the parties from the time of their birth until July 1, 1998, when the parties separated. From July 1, 1998 through about April 27, 1999, the children lived with the plaintiff. Since that time, the children have lived with defendant. 5. Since the time the children began living with the defendant, the plaintiff enjoyed partial physical custody of the children everYvWeekend, pursuant to an agreement between the parties. ~ 6. However, since the weekend of July 14, 2001, the defendant has, without cause, refused all contact between the plaintiff and the children, including personal and phone contact. 7. Plaintiff has not participated as a party or witness, or in another capacity, in other litigation concerning the custody of the children in this or another court. Plaintiff has no information of a custody proceeding concerning the children pending in a court of this Commonwealth, other than the existing Order filed to this term and number. 8. Plaintiff 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. 9. Plaintiff believes and therefor avers that the best interests and permanent welfare of the children require that the parties have joint legal custody of the children, that plaintiff have primary physical custody of the parties' daughter, Christina, that the defendant have primary physical custody of the parties' son, Michael, and that the parties have temporary physical custody of the child not in their primary physical custody on alternating weekends so that the children are together every weekend. WHEREFORE, plaintiff respectfully requests that the court enter an order providing for the legal and physical custody of the children as aforesaid. - 2001 Attorney for plaintiff~ 35 East High Street Carlisle, Pennsylvania 17013 (717) 243-6090 Supreme Court I.D. No. 29920 VERIFICATION I do hereby verify that the acts set forth in this petition 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. 'S~NbRA L. KIRBY DONALD G. FITTiNG, JR., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : CIVIL ACTION - LAW ANGILA M. FITTING, i NO. 01-'3~h~Ct~IL TERM Defendant : IN CUSTODY ORDER OF COURT AND NOW, this ~[t~" day of~, 2001, apon consideration of the attached Stipulation Regarding Custody, it is hereby ORDERED that: a. The father and mother shall enjoy shared legal custody of Joanna Marie Rodriguez, born December 8, 1990, and Genesis Anne Fitting, born December 29, 1996. b. The father shall be the primary physical custodian of the minor children. c. The mother shall have periods of partial physical custody as agreed by the parties. d. Both parties shall permit reasonable telephone contact with the children. e. Both parties agree to cooperate with one another in the implementation of the aforesaid agreement and understand and agree that other changes or modifications in the aforesaid schedule and/or time specified may be necessary to enable both parents to continue to foster and develop a good healthy relationship with the children. To that end, the parties agree to cooperate with one another to encourage the relationship of the children with the other parent and agree to refrain from any and all conduct, activity, or communication which would adversely affect the child's relationship with either parent. f. Upon the knowledge of pending relocation, temporary or permanent, of either parent, each parent must immediately inform the other of his/her new address and telephone number. g. Both parties agree that neither shall move out of the jurisdiction of Pennsylvania with the children without consent of the other parent or court order. SEP '~ CUI~,~,~.!~,..,,i,~u ~OUNTY PENNSYLVANIA " ---~ THE COURT OF COMMON PLEAS OF Plaintiff i CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW SANDRA L. KIRBY : PLAINTIFF V. : DAVID R. KIRBY : DEFENDANT : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-5502 CIVIL ACTION LAW INCUSTODY AND NOW, Wednesday, October 03, 2001 , 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, November 08, 2001 at 9:30 AM for a Pre-Heating 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/ Hubert X. Gilroy. Esq. Custody Conciliator The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilites Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. YOU SHOULD TAKE THIS PAPER TO YOUR ATTORNEY AT ONCE. IF YOU DO NOT HAVE AN ATTORNEY OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 ¥'~NVA"IAgNN~8 /30 ! 0 IN THE COURT OF COrYdON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL A~TION - LAW SANDRA L. KIRBY, : Plaintiff : Vs. : : DAVID R. KIRBY, : Defendant : No. 01-5502 Civil Term in Custody PRELI~4INARY OBJECTION - MoTION FOR CHANGE OF vEI~. C0~s NOW the Defendant, DAVID R. KIRBY, b~and through his attorney, Barbara Jo Entwistle, Esquire, and files this Preliminary Objection - Motion for Change of Venue, and for reason therefore states as follows: 1. The Petition for Custody filed on or about September 21, 2001 alleges that the Plaintiff, Sandra L. Kirby, is a resident of Cumberland County, Pennsylvania. 2. The Petition for Custody further states that the Defendant, David R. Kirby, is a resident of A~ms County, Pennsylvania. 3. The Petition for Custod~further states that the residence of the children has been with the Defendant in Abbottstown, Ju4~nls County, Pennsylvania sinoeApril, 1999, period of two and a half (2-1/2) years. 4. The Defendant sl~ecifically avers that he has resided at 249 High Street, ~ottstown, ~s County, Pennsylvania since 1996. 5. Pennsylvania ~ule of Civil Procedure 1915.2 Sl~ifically provides that a custod~ action ~...may be brought within any county (1)(i) which is the ho~e county of the child at the time of c~m~enoement of the proc-~ding; or (1} (ii) which had been the child's home county within six (6) r~onths before commencement of the proceedings and the child is absent fr~m the county because of the child's removal or retention by a ~erson claiming the child's custody or for other reasons and a parent or parson acting as parent continues to live in the county..." 6. The instant petition acknowledges that the children have resided with the Defendant in A~mS County since at least April 29, 1999. 7. Defendant objects to venue in Cumberland County as being in violation of the rules and an inconvenient forum. WHEI~EFORE, Defendant respactfully r~ests that this Preliminary Objection be granted and that this matter be dismissed, or alternatively, that the matter be transferred to Adams County, Pennsylvania, where the child=en c~rrentl¥ reside. Respeotfully submitted, PYLE AND ENTWISTLE Attorney f~r Defendant 25 South Washington Street Gettysburg, PA 17325 (717) 334-6761 Supre~ Court I.D. No. 41906 V~RIFICATION STATEMENT I verify that the statements made in the foregoing document are true and oorrect to the best of m~ personal knowledge, information and belief. I uncle=stand that false statements herein are made s~bject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. Date: C~RTIFICATE OF SERVICE I hereby certify that on the ~/ day of October, ~001, a copy of the foregoing Preliminar~ Objection - Motion for Change of Venue was served upon the following individual by first class mail, postage prepaid: Harold S. Irwin, III, Esquire 35 East High Street Carlisle, Pennsylvania 17013 IBarbara J~ Entwistle, Esquire Z0 ~r~ PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and su~nitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please ]ist the within matter for the next Argn~,ent Court. CAPTION OF CASE (entire caption must be stated in SANDRA L. KIRBY, ( PI ai ntiff) DAVID R. KIRBY, ( Deferment ) No. 03 Civil ~n~ 19 State matter to be argued (i.e., plaintiff's motion for new trial, defendant's d~m~-~-r to c~,%~lnlnt, etc.): Preliminary Objection - Motion for Change of Venue 2. Identify counsel who All argue case: (a) for plaintiff: ~s: Harold S. Irwin, Esquire 35 East High Street Carlisle, PA 17013 (b) for defendant: ~ss: Barbara Jo Entwistle, Esquire 25 South Washington Street Gettysburg, PA 17325 3. I wJ l 1 notify nl I iklrties in writing within t~o days that this case has been 1 i-~ted for ~t. 4. Argunent Court Date: December 12, 2001 D~ted: 10/26/01 ~t~rney (f~Sr~ D~fendant CERTIFICATE ~F SERVICE I her~ ~rt~fy that on the ~(~ ~y of ~t~r, 2001, a ~ of ~e forgoing Praeci~ for Lis~ng Case for ~nt ~s se~ u~n the following individual ~ first class ~il, ~s~ge pre. id: Harold S. Irwin, III, Esquire 35 East High Street ~arlisle, Pennsylvania 17013 ~-~rbara J'~ntwis~le, Esquire Nov-14-01 03:39A Pyle & Enwistle 717+334+7447 P.02 THE COiIRT OF C~ERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAN ~NDI~AL. KIRBY, : Plaintiff : Vs. : DAVID R. KIRBY, : Defendant : No. 01-5502 Action in Custody C~I~ENT A~REEMENT TO TRANSFER VENUI~ CC~S N0~the Plaintif£, SANDRAL. KIRBY, by and through her attOrney, Retold 8. Irwin, III, Esquire, and the Defendant, DAVID R. KIRBY, by and through his attorney, Barbara Jo Entwiatle, Esquire, who, pursuant to n~otiations, do now ~onsent to the transfer of the lnstan~ case to the Court of C~n Plea~ ~f Ach~as County, Pennsylvania for litigation and disposition in the case of Sandra L. Kirby vs. David R. Kirby, M County case 901-$-1194 and ~ecl~est8 that the following Consent Order be si~ned at the Court's earliest convenience. Both p&rties further z~q~eot that this Court cancel the Pre~il~tnary 0~jectiona - Motion £or Change off Venue previously filed by the Defendant and now sohedule¢t for a=~ument Cou=t on December 12, 2001. ~rbara ~_ EntrieS1e, Esquire Attorney for Defendant NOV II 0 001 UP IN THE COORT OF CUMBERLAND COUNTY, PENNSYLVANIA CML ACTION - LAW SANDRAL. KIRBY, Plaintiff Vs. DAVID R. KIRBY, Defendant No. 01-5502 Action in Custody this CONSENT ORDER Upon consideration of the attached Consent A~ree~ent, it is day of ~e~~ , 2001 ORDERED, that the instant case be transferred to the Court of Coa~n Pleas of Adams County, Pennsylvania for litigation and Disposition in the case of San(ira L. Kirby vs. David R. Kirby, Adam~ County case #01-S-1194; and it is further ORDERED, that the Preliminary Objection - Motion for Change of Venue is hereby rendered moot by virtue of the Consent Agreea~nt and the matter now scheduled for December 12, 2001 argument court is canceled. BY THE COURT: NOV 1 3 O01LY SANDRA L. KIRBY, Plaintiff V DAVID R. KIRBY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-5502 CIVIL IN CUSTODY COURT ORDER AND NOW, this //c~ ~' __ day of November, 2001, the conciliator being advised that the parties have voluntarily transferred this case to Adams County, the conciliator relinquishes jurisdiction. BY THE COURT, ul~ert X. Gilroy, Esquire Cusiody Conciliator