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HomeMy WebLinkAbout94-04887 , , , , I, lJ, ,'/.' " ':, '~ j i(1 I' " , , " , , " J .C:!J "~ 1 ~ -.// , , " , i',' j ,t , ,j -? \~ " k c!J , , , " , " " ~ " " J I ":1 " r- ~ :::t" <pl I I &) 'I...... .,- .. ';' _.,.d~,~'- J.' <( (j) (f) C\J :::J 1.' ,1\ .' , m1 IIIII i~I_':.i"" t ~~ _- -'-'1 , , I, I j I I" I I I I 11'\ 11'\ "0 ~::: .. .. Vl< e..R.. ::l V . ;e ~ ~ u .<1l ::l <1l;r...c ;;IJ:l~ u '0-1 IJ) l:l <= <1lQ <1l aVlJ:l o 0 ~ ~N:I: , I " ~ .. ~ , "f .i , I ! ,!j * '\ /1 .,... .. '. County, Pennsylvania and Plaintiff moved to Cumberland County. Pennsylvania, I}, The parties have been following the Dauphin County order since 1987. 10, This matter was never tmnsferred from Dauphin County, 11. On August 17, 1987, at approximately 11:00 p.m.. Defendant, with I'.1chary and her other two children, left her home ill Schuylkill lIavell, Pennsylvania intending to travel to Reading, Pennsylvania, 12, On their way to Reading, Pennsylvania, Defendant became disoricnted and suffered some sort of mcntal breakdown, 13. Defendant, Zachary and Zachary's two half-brothers were found in King of Prussia, Pennsylvania at the Valley forge Military Park. 14. The park rangers at Valley forge Military Park notitied the Montgomery County Children and Youth Agency and Plaintiff was informed that he could pick up Zachary at the Montgomery County Children and Youth Agency. 15. Plaintiff picked up Zachary at the Montgomery County Children and Youth Agency and Zachary has been in Plaintifi's custody since August 18, 1994. 16. Defendant is currently hospitalizcO at the Pottsville Hospital, 420 South Jackson Street, Pottsville, Pennsylvania and it is believed that she is a patient in their psychiatric ward. 17. Plaintiff was IOld by Defcndam's mothcr that Defendant cxpects to be hospitalil,ed for the foreseeable futurc, 18. Defendanttclephoned Plaintiff on August 26, 1994 and indicatcO to Plaintiff that the doctors have not yet diagnosed her illness, 19. Plaintiff was told hy the administration of Filbert Street Elcmcntary SChlX11 in Mechanicsburg. Pennsylvania that Zachary could not bc enrolled without a custody order giving Plaintiff primary physical custody of Zachary. 20. Since school is scheduled to begin on August 30, 1994. Plaintiff filed a Petition for Emergency Relief with Dauphin County requesting an order giving Plaintiff primary physical custody of Zachary. 21, On August 24. 1994, The Honorable Jeanninc Turgeon of the Court of Common Picas of Dauphin County signed an emergency order in the mailer dockcted to 1966 S 1987 giving Plaintiff temporary primary physical custody of Zachary, 22. Under Rule of Civil Procedure 1915.2 (a) (2), it would be in the best interests of Zachary to bring a petition to modify the custody orders dated September II, 1987 and August 24, 1994 in Cumberland County, Pennsylvania since Plaintiff resides in Cumberland County and Zachary will be residing in Cumberland County for the foreseeable future given Defendant's current medical condition. Plaintiff and Zachary have a significant connection with Cumberland County and there is available within the County substantial evidence concerning Zachary's present and future care, protection. training and personal relationships. 23. The best interests <lnd permanent welfare of thc child will bc served by granting the Plaintiff's petition to modify the custody orders d<ltcd September II. 1987 and August 24, 1994. Defendant is currently hospitalized in the Pottsville Hospit<ll, 420 South Jackson Street. Pottsville. Pa. and it is believed that shc is a paticnt in thc psychiatric ward. Defendant has suffered mcntal problems in thc past and has been hospitalized for such problems in October, 1991 and Decembcr. 1992. As rccently as August 17, 1994. Defendant, while on a trip to Rc.lding. Pcnnsylvania, bccamc disoricnted and somehow cnded up at the Valley Forge Military Park with thc child and her other two children, Defendant and her children were discovercd at somctime during the afternoon of August 18, 1994 by the park rangers at the Valley Forgc Milirnry Park and it was apparent that Defendant had suffered some sort of breakdown. Thc children were rnken to the Montgomery County Children and Youth Agency. Defendant was hospitalized as a result of this breakdown, Defendant is not capable of providing a stable environment for the child because of her emotional and mental instability. Plaintiff is able and willing to provide a srnble life for his son. Plaintiff currently resides with his parents, the child's grandparents, who will assist in helping Plaintiff to care for the child. 24. Each parent whose parenl.11 rights have not been terminated and the person who has physical custody of the child have been named as parties to this action. 25. Plaintiff has no knowledge of any other custody proceeding pending in a court of this Commonwealth. 26. Plaintiff has participated as a party in other litigation concerning thc custody of this child in the Court of Common Pleas of Dauphin County, Pennsylvania in the mailer docketed to 1966 S 1987. MICIIEI.E M. IJILGER, Plainllff IN TIlE COURT OF COMMON I)LEAS DALJPIIIN COUNTY. PENNSYLVANIA 9L/- L/g;?fl L~4J U'it.,,,, I{ill\., ~ \ (I n NO. I'lL J .~'SI v. THOMAS JUDE BILGER, Defendanl ORDER AND NOW, lhis Q.~~ day of August, 1994, the Pelilion for Emergency Relief is hereby .tcrftl'O""'1 granled and Defendanl, Thomas Jude Bilger. is awarded'\Jrimary physical cuslody of Zachary T. Bilger. BY THE COURT: I hvr,",. - t.", '. . , . ..' . tli,;' 8.~'i 19 qy . ," I" '.~ -,'/ Is a " '11;'\ ," I " ,,' . l ;" I". '. pioii'lJr.~:j.il . '~M'." .._...... .. '.~.. up in King or Prussia, Pennsylvania ntthe Valley Forge Military Park. 8. Plninlirr, Zachary and Zachnry's two half-hrothers were round by the Valley Forge Military Park Rangers at some point during the afternoon of August 18, 1994. 9, The park rangers at Valley Forge Military Park notified the Montgomery County Children and Youth Agency and Dcfendant Wi\S subsequently inrormed that he could pick up Zachary at the Montgomery County Children and Youth Agency, 10. Derendant picked up Zachary at the Montgomery County Children and Youth Agency and Zachary has been in Derendant's custody since August 18, 1994. II. Plaintirr is currently hospitalizcd at the Pottsvillc Hospital, 420 South Jackson Street, POllsville. Pcnnsylvania and it is believed that she is a patient in their psychiatric ward. 12. Plaintirr surrered similar breakdowns in October, 1991 and December, 1992 and had to be hospitalized. 13. Derendant intends to enroll Zachary at tile Filbert Street Elementary School in Mechanicsburg, Pennsylvania. 14. The administration at Filbert Street Elementary School will not accept Zachary as a student unless a custody order is entered giving Derendant primary physical custody or Zachary. 15. School begins on Tuesday, August 30, 1994. 16. 17. Plaintirf is not in any condition 10 care ror Zachary given her current hospitalization. The best intcrcsts and permancnt wclrarc or thc child will be served by granting the relief requested because Plaintiff is not able to care for Zachary and Defendant wants to and is able to give Zachary a stable environlllent. Defendant lives with his mother and father, lIarvey and Teresa Bilger. and they will be able to assist Defendant to care for Zachary. WIIEREFORE, Defendant requests the court to grant said emergency petition and award primary physical custody of Zachary T. Bilger to Defendant Deborah K. Spert el, Allorney for Defendant 20 South Market Street Mechanicsburg, Pa, 17055 Date: 1~LI /11 .hull hayCl custo~y Cor Hl/morial IlllY and LaulH Ilay Ul\~ tho \.'ulhor ,hall h.yo custody fur ~oslor, July 4th ol\d 'Cholll'~lllyin8. d) ell r i IIlllll1 /j 1111 I I U II Y II Hh.oI I hll <II v I ",'d 111111 l \JU (2) twenty-four hour po dods Ii I t h custody to changQ lit 1I00n on I I'othor H hu II Chrlatmel day. III udcJ-nulllht.' r,..t,J y') u r" , Llll' hllvo custody from 12:00 00011 on Ilecomuer 24 to 12100 11000 on Ilecomber 2$ and Hothor ~holl IoIIVO l/UlltIlUY nil 12100110011 IlCl/eIllUl/r 2~ to 12100 noon Ilecolnbor 26. 0) 10 OVUII-IIUIIIUI'r,," your~. tho Hothor sholl huvI' cUltody froln 12100 ooon on Ilecember 24 to 12100 noon 0'0 Ilecelnbor 2$ and Father Iholl hoye custo~y 011 12100 nllon Ilecellluor 25 lo 12100 noon Ilecember 26. f) 1101 idoy l imol sholl toke I'recedenco OVl/r rOBu1erly . scheduled wQokend custodial tilllos and e lao l ,'kl/ precl/dellco over yacotion tlllll/~ IIlvl/n in Parograph 4 below. i) 1I0lidey, custodial podods sholl bogin ot 9:00 AM and end nt 7:00 PH. 4. SUHMEIl VACA'CIOll: a) 'Che partlel shall hove two (2) weeks of ~ummllr vacation with the child and shall ulternate choosinn laid cUNtodial periods. b) In odd-numborl'd Yl/ors. Fothor sholl comlllunlclll,' to Mother, in writlnll. the two Ill/oks durillll which he intelldll 10 eNercise lummer VOCllt ion ,dth th,' child. Sold notlcl! to Mother Iha 11 be Bivon by May 15th oC eoch odd-nullluc.l rod yeor. The reo r t e r. Mot her II h II J I II uti r y F 0 t 10 ,. r () r the two WI' \. k II I h II I "III' Intends to exercioe SUmml/r vacolioo with the child. SlIld lIutico -2- MICHELE M. BILGER, I IN THE COURT OF COMMON PLEAS Pia int i ff r DAUPHIN COUNTY, PJo:NNSYLVANIA I v. I NO. 1967 S 1987 I TlIONAS JUDE ULGER , r Defendant. I IN DIVORCE STlPULA'rlON Naxine Kay Lewia, Eaquire, Counael for Plaintiff MICHELE M. BILGER and William I. Tully, Eequiro, Couna.l Cor Defendant THOMAS JUDE BILGER do hereby stipulate that the attached Agreement of the partiea should be made an Ordor of the Court. _ ILW {.(A.Q., -~<..V Maxine Kay Lewia, Eaqpire Attorney for Plaintiff Datedr 1~'" ;-1 -' _ ~I~C:~-?--:? --z.;"/4 -wtf"ifi'.n 'L 'f u I I Y I Ea q u V Attorney for Defendant Datedl Y..2~-'i'") . . ~ DOMESTIC RETURN RECEIPT P 290 635 104 ~. - "" Receipt for Certified Mail ,,"0 IIl~ilH,I'1i " (,1'."'1'1" P'Q"'llllltl "" HI)I IJ'". , P !,,,,'f! j!'Ofloll ~.1i111 ',,'" Ht)\tI'r~1 In. Lll:J ,-,-1IL ed..~t~ .:'- _':! . LL=-f...,!~cJ. ,,+:.,': __, .~1./I-'''lU' . I! 1/ "/, ':' /i, $ ,S;}. ~..~~--_.- ..-....__._--~ N?'t:d ;; r ,~ , , " g , co "'I I $ ,,~ );L. ;) ."...1- " NOV 15 199;'o~" THOHAS JUPB BILGER, I IN THE COURT OF COMMON Plaintiff I PLEAS OF CUMBERLAND I COUNTY, PENNSYLVANIA vs. I I NO. 94-4887 CIVIL TERM MICHELE M. BILGER, ) Defendant ) CUSTODY OUD AND NOli, tb1a l7 tt. day of MOllt..,~v ,1994, upon receipt and reviell of the Iconciliator's report, it appearing that the parties agreed to the terms and provisions Ilof this order, IIhich lias dictated in their presence and approved by them and their , counsel, lie hereby order as follolls: 1. Legal custody of the minor child, Zachary T. Bilger, born January 22, 1986, sball be shared by his parents, tbe Plaintiff, Thomas Jude 8ilger, and the Defendant, IIMichele M. Bilger. ,I \1 2. We make no allard of physical custody at tbis time. However, reserving unto , leach party all of their claims to and defenses to the other partY'fi claims for physical ! custody , lie direct that, pending further order of tbis or any other court of 'I : 'appropriate jurisdiction aud venue, the child continue to reside at the father's " !Iresidence in Hecbanicsburg, and attend school from that residence, except for :alternating lIeekends from Friday at 5:00 p.m. until Sunday at 4:00 p.m., commencing on 'Friday, October 14, 1994, when the child shall be in the mother's care and with the mother. For purposes of thp. mother's time with the child, the mother shall piCk the ,child up at the father's residence at 5:00 p.m. on Fridays and the father shall pick the child up at the mother's residence at 4:00 p.m. on Sundays. There shall be DO adjustment in that schedule for the Thanknqlvinq schedule In 1994, but thp child Slldll " j r" , j. I ~_., l'I (l :", '1' : ! .' I '.; l .. .'".....-...~ . i~.~r.-n--......-.....'*'~..,..."..... .y be with the Nother over the Christmas holiday from the time that the child qets out of Ischool to cOlllllence that holiday until noon on December 36th and aqa1n from noon on IDecember 38th until noon on December 31st and the child shall be with the father, I Inotwlthstandlnq any of the other provisions of this schedule, from noon on December I 136th until noon aD December 38th and from noon aD December 31st until school resumes In r IJanuary of 1995. After school resumes, the mother will continue to have the child ialternatlnq weekends commencinq on Friday, January 6, 1995. 3. We enter this order recoqnlzlnq that the parties have disputed the venue of litbls case and we recoqnlze that each of the parties has reserved all of their claims , jand defenses to the venue Issue, and without any intention of determining the venue lissue at this time. We will consider the facts to which the parties bave stipUlated , and leqal arquments submitted by counsel and either determine the venue Issue on that basis or, if tbe court feels additional facts are necessary, schedule a brief heariDq on the venue matter. After ve have decided the matter of venue, we viii either schedule a hearlnq on tbe ultimate Issues of the cblld's custody or transfer this case :to Schuylkill County for a hearlnq on those Issues. , I " 4. Tbe parties have aqreed tbat they will file a stipulation vith the Court of ; ,Common Pl:?as of Dauphin County to vacate all prior orders entered in the action I I'pending between them in that court to No. 1966-3-1987, and to tben formally discontinue , that action. Tbe parties have aqreed that Dauphin County is not the proper venue for this custody dispute and they have agreed the matter will either be heard by this court or by the Court of Common Pleas of Schuylkill County once we determine the proper venue. 3 THOMAS JUDE BILGER, I IN THE COURT OF COMMON PLEAS OF Plaintiff I I CUMBERLAND COUNTY, PENNSYLVANIA I vs. t NO. 94-4887 CIVIL TERM t MICHELE M. BILGER, : CUSTODY Defendant : t RULE TO SHOW CAUSE AND NOW, this day of September, 1994, upon consideration of the defendant's preliminary objection to venue, a rule is entered against the plaintiff to show cause why the within case should not be dismissed for lack of proper venue. The rule is returnable at a conference in chambers on the day of September, 1994, at .M. By the court, J. THOMAS JUDE BILGE~, Plaintiff IN TilE COURT OF COMMON PLEAS OF vs. CUMBERLAND COUNTY, PENNSYLVANIA NO. 94-4887 CIVIL TERM MICHELE M. BIL,GER, Defendant = CUSTODY -DEFENDANT'S PRELIMINARY OBJECTION TO PLAINTIFF'S PETITIQH The defendant, MICHELE M. BILGER, by and through her attorney, Joan carey of Legal Services, Inc., files this preliminary objection to the plaintiff's petition pursuant to Pa. R.C.P. Section 1915.5 on the following basis: IMPROPER VENUE 1. The defendant, Michele M. Bilger, hereinafter referred to as the mother, is an adult individual who currently resides at 30 Fritz-Reed Avenue, Schuylkill Haven, Schuylkill County, Pennsylvania. 2. The plaintiff, Thomas Jude Bilger, hereinafter referred to as the father, is an adult individual who currently resides at 1008 East Simpson street, Mechanicsburg, Cumberland County, Pennsylvania. 3. The parties are the parents of Zachary T. Bilger, hereinafter referred to as the child. 4. On or about September 1, 1994, the plaintiff filed in the Court of Common Pleas of Cumberland county, a Petition for Modification of the Dauphin County Custody Order of September 11, 1987 and the Temporary custody Order entered ex parte in Dauphin County on August 24, 1994, and an Order was entered scheduling a conciliation Conference for october 10, 1994. See Exhibit A, incorporated by reference. 5. The child has been in the primary care of the mother until on or about August 18, 1994, when the father temporarily took the child to Cumberland county while the mother was hospitalized due to complications resulting from her transfer to a new psychiatrist who prescribed medications different from those she had been taking. 6. The mother was discharged from the hospital in about ten days from her admittance, to find that the father had filed a Petition for Emergency Relief in Dauphin county, asking that Court to modify its Order of 1987 which had given the mother primary physical custody, and an ex parte custody Order was entered giving the father temporary primary physical custody. 7. On behalf of the mother, Schuylkill county Legal Services, Inc. is attempting to have the custody matter certified to Schuylkill county. 8. Pursuant to the Pa. R.C.P. 1915.2 Cumberland County is improper venue to hear the custody matter for reasons including the following: a. The home county of the child has been Schuylkill County, Pennsylvania, where the child lived from 1987 until on or about Augu~t 18, 1994. b. The child and the mother have a significant connection with Schuylkill county where they and the child's half brothers have resided together since about 1987, an1 it is in the best interest of the child to hear the case in Schuylkill County County, Pennsyl\'ania and Plaintiff mov~ to Cumberland County, Pennsylvania. 9. The parties have been following the Dauphin County order since 1987. 10, This matter was never transferred from Dauphin County, II. On August 17, 1987, at approximately 11:00 p.m., Defendant, with Zachary and her other two children, left her home in Schuylkill Haven, Pennsylvania intending to travel to Reading, Pennsylvania. 12. On their way to Reading, Pennsylvania, Defendant became disoriented and suffered some sort of mental breakdown. 13, Defendant, 7.achary and Zachary's two half-brothers were found in King of Prussia, Pennsylvania at the Valley Forge Military Park. 14. The park rangers at Valley Forge Military Park notitied the Montgomery County Children and Youth Agency and Plaintiff was informed that he could pick up Zachary at the Montgomery County Children and Youth Agency. IS. Plaintiff picked up Zachary at the Montgomery County Children and Youth Agency and Zachary has been in Plaintiff's custody since August 18, 1994. 16. Defendant is currently hospitalized at the Pottsville Hospital, 420 South Jackson Street, Pottsville, Pennsylvania and it is believed that she is a patient in their psychiatric ward. 17. Plaintiff was told by Defendant's mother that Defendant expects to be hospitalized for the foreseeable future. 18. Defendant telephoned Plaintiff on August 26, 1994 an(1 indicated to Plaintiff that the doc:tors have not yet diagnosed her illness. 19. Plaintiff was told by the administration of Filbert Street I;lementary School in Mechanicsburg, Pennsylvania that Zachary could not be enrolled without a custody order giving Plaintiff primary physical custody of Zachary, 20. Since school is scheduled to begin on August 30, 1994, Plaintiff filed a Petition for Emergency Relief with Dauphin County requesting an ordtlr giving Plaintiff primary physical custody of Zachary. 21. On August 24, 1994, The Honorable Jeannine Turgeon of the Court of Common Pleas of Dauphin County signed an emergency order in the matter doc:keted to 1966 S 1987 giving Plaintiff temporary primary physical custody of Zachary. 22. Under Rule of Civil Procedure 1915.2 (a) (2), it would be in the best interests of Zachary to bring a petition to modify the custody orders dated September 11, 1987 and August 24, 1994 in Cumberland County, Pennsylvania since Plaintiff resides in Cumberland County and Zachary will be residin6 in Cumberland County for the foreseeable future given Defendant's current medical condition. Plaintiff and Zachary have a significant connection with Cumberland County and there is available within the County substantial evidence concerning Zachary's present and future care, protection. training and personal relationships. 23. The best interests and permanent welfare of the child will be served by granting the Plaintiff's petition to modify the custody orders dated September II, 1987 and August 24, 1994. Defendant is currently hospitalized in the Pottsville Hospital, 420 South Jackson Street, Pollsville. Pa. and it is believed that she is a patient in the psychiatric ward. Defendant has suffered mental problems in the past and has been hospitalized for such problems in October, 1991 and December, 1992. As recently as August 17. 1994, Defendant. while on a trip to Reading, Pennsylvania, became disoriented and somehow ended up at the Valley Forge Military Park with the child and her other two children. Defendant and her children were discovered at sometime dUring the afternoon of August 18, 1994 by the park rangers at the Valley Forge Military Park and it was apparent that Defendant had suffered some sort of breakdown. The children were taken to the Montgomery County Children and Youth Agency. Defendant was hospitalized as a result of this breakdown. Defendant is not capable of providing a stable environment for the child because of her emotional and mental instability. Plaintiff is able and willing to provide a stable life for his son. Plaintiff currently resides with his parents, the child's grandparents, who will assist in helping Plaintiff to care for the child. 24. Each parent whose parental rights have not been terminated and the person who has physical custody of the child have been lIamed as panies to this action. 25. Plaintiff has no knowledge of any other custody proceeding pending in a court of this Commonwealth. 26. Plaintiff has participated as a party in other litigation concerning the custody of this child in the Court of Common Pleas of Dauphin County, Pennsylvania in the malter docketed to 1966 S 1987. hospitalized as a result. It is denied that the father temporarily took child to Cumberland County, Father has grave concerns about mother's ability to adequately protect and care for cbild and for this reason has sought primary cllstody. 6. It is admitted that father had tiled a Petition 1"11' Emergenr;y Relief in Dauphin County, asking the court to modify its order of 19!17 which had given the mother primary physical custody. It is admitted that an ex parte order was entered giving father temporary primary physical custody, Father is without knowledge as to when mother was discharged from the hospital and as such the remaining averments arc denied, By way of further an~wer, Father filed a petition for emergency relief becausc Filbert Street Elemelllary School, the appropriate elementary school in the Father's school district, would not enroll the child without a court order stating that father had custody of this child. 7. After reasonable investigation, Father is without information as to the truth of this averment and accordingly, this averment is hereby denied. !l. It is denied that as a matter of law, Cumberland County is without venue 10 hear this matter. By way of further answer, pursuant 10 Pa. R. C. P. 1915.2 (a) (2) an action may be brought in any county in which it is in the best interest of the child that the court decides the matter because the child and the child's parents or the child and at least one party, have a significant connection with the county and there is available within the county substantial evidence concerning the child's present or future care, protection, training and personal relationships, Father lives in Cumberland County and has lived in Cumberland County since 19!16, Father has faitbfully exercised his right to partial physical custody pursuant to the agreed order entered In 1987 and the child has spent his timc with his fathcr whcn hc was in (athcr's custody in Cumberland County, The child bcganthc 1994.1995 school year in Cumbcrland County and has bccn cnrollcd in wcckly rcligious tmining dasscs at Sl. Joseph's Church in Mechamcsburg, Cumbcrland County. Child has also been enrollcd in boy scouts at Sl. Joseph's Church in Mechanicsburg, Cumberland County. Child currcntly residcs with his father and patcrnal grandparents in Cumberland County, Child has a significant connection with Cumberland County and there is available within Cumberland County substantial evidence concerning his present and future care. Father's paramount conccrn is the safety of the child and since it is questionable whether mother should have unsupervised visitation With this child givcn her medical background, child's prcscl1l and futurc care is in Cumberland County. This is the third time that Mother has becn hospitalized since October, 1991. Venue is proper in Cumberland County under Pa. R. C. 1'. 1915,2 (a) (2). Venue is also proper under I'a. R. C. 1'. 1915.2 (a) (3) which pO'ovides that an action may be brought in any county in which the child is physically present and the child has been abandoned or it is necessary in an emergency to protect the child because the child has been subjected to or threatened with mistreatment or abuse and is otherwise neglected or dependent. The child was effectively abandoned in Montgomery County and Father took physical custody of the child for hir. safcty and protection because Mother was not in any condition to care for this child, Since the child is physically presel1l in Cumberland County and Father liv.:s in Cumberland County, venue is proper in Cumberland County. By way of further answer, Mother docs not have any relatives living in Schuylkill County. Mother's immediate relatives TIIOMAS JUDE BILGER. Plaintiff IN TfIEi COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIl. ACTION. LAW MICHELE M. BILGER, Defendant NO, 94.4887 CERTIFICATE OF SERVICE I, Deborah K. Spertzel, Esquire, do hereby certify that I have on this date served a true and correct copy of the foregoing Plaintiff's Answer 10 Defendant's Preliminary Objections on the following and in the manner indicated: First class United States Mail postage prepaid: Joan Carey, Esquire Legal Services I nc. 8 Irving Row Carlisle, Pa. 17013 Samuel Andes. Esquire Custody Conciliator 525 North 12th Street Lemoyne, Pa. 17043 ILil,/\Jl--l!fu"A,,/ Deborah K. Spertzel .' J rJ - "1. 'i 'I Date , '. ,I I", .. . . THOMAS JUDB BILGBR, ) IN THB COURT OF COMHON Plaintiff ) PLBAS OF CUHBBRLAND ) COUNTY, PENNSYINANIA v~, ) ) NO. 94-4887 CIVIL TERH HICHELB H, BILGER, ) Defendant ) CUSTODY OUD AND NOll, this l'1 tt. day of ~ollt..,l-eJ ,1994, upon receipt and review of the conciliator's report, it appearing that the parties agreed to the terms and prOVisions of this order, which was dictated in their presence and approved by them and their counsel, we hereby order as follows: 1. Legal custody of the minor child, Zachary T, B11ger, born January 33, 1986, shall be shared by his parents, the Plaintiff, Thomas Jude Bilger, and the Defendant, 'Hichele H. Bilger. 3. We make no award of physical custody at this time. However, reserving unto each party all of their claims to and defenses to the other party's claims for physical custody, we direct that, pending further order of this or any other court of appropriate jurisdiction and venue, the child continue to reside at the father's residence in Hechanicsburg, and attend school from that residence, except for alternating weekends from Friday at 5:00 p.m. until Sunday at 4:00 p.m., commencing on Friday, October 14, 1994, when the child shall be in the mother's care and with the mother. For purposes of the mother's time with the child, the mother shall pick the child up at the father's residence at 5:00 p.m. on Fridays and the father shall pick the child up at the mother's residence at 4:00 p.m. on Sundays. There shall be no adjustment in that schedule for the Thanksgiving schedule in 1994, but the child shall I THOMAS JUDE BILGER, Plaintiff IN THE COURT or COMMON Pl.EAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW MICHELE M. BILGER, Defendant NO. 94-4887 PRAECIPE Please withdraw my appearance for Plaintiff Thomas Jude Bilger in the above-captioned matter. {~~L J~ i ~,vI~tJ Deborah K. Spertzel . Blackburn & Spertzel 20 South Market Street Mechanlcsburg, Pa. 17055 (717) 796-1600 Jl, ..-e -q 1.( Daie THOMAS JUDE BILGER. Plaim!ff IN nm COllRT 01' COMMON PLEAS ClIMBERI.AND COUNTY. PENNSYLVANIA v. CIVIL ACTION. LAW MICHELE M. BILGER. Defendant NO. 94-4887 PRAECIPE Please enter my appearance for Plaintiff Thomas Jude Bilgcr in the above-captioned mailer. -J~/;~ Thomas Blackburn Blackburn & Spcrtlcl 20 South Market Street Mechanicsburg. Pa. 17055 (717) 796-1600 j:J/g/qL Date lachary and the other two children were discovered during the afternoon of August Ill, 1994 hy the park rangers .11 the Valley Forge Military Park. Mother had apparently suffered some ,ort of mental breakdown. Mother and the children had slept in the car and the c1l1ldren had nlll had any food since the previous day. The Montgomery County Children and Youth office was notitied and a caseworker carne to the park and picked up the children and the mother, Zachary's father was notitied that he could pick up Zachary at the Montgomery County Children and Youth oflice. Zachary has been in his father's custody since August 18. 1994. Mother was hospitalized at the Pottsville Hospital. Father contacted the Filbert Street Hementary School in Mechanicsburg about enrolling Zachary in school. Father was told that a court order was necessary which stated that Father had cllstody of Zachary before Zachary could be enrolled in school. On August 24, 1994, The Honorable Jeannine Turgeon of the Court of Common Pleas of Dauphin County signed an emergency order which gave Father temporary physical custody of Zachary in response to the petition for emergency relief tiled on behalf of Father and in deference to the order entered on September II, 1987 in the case docketed to 1966 S 1987. On August 29. 1994, Father tiled a petition to modify the orders entered on September II. 1987 and August 24, 1994 in Cumberland ('ounty. Father requested that the court award primary physical and legal cust(x!y of Zachary to Father. An order was entered scheduling a wnciliation conference for October \0, \994. Preliminary objections to Father's petition were tiled on September 23, 1994 which alleged that proper venue docs not lie in Cumberland County. The Honorable J. Wesley Oler, Jr. entered an order on Septcmbcr 23, 1994 which dirccted the conciliator to include a ,liscussion of vcnue in his report. Father tiled an answer to Mother's preliminary objections on October 4, 1994, A conciliation conference was held before Sam Andes, Esquire on October 10. 1994, Mr. Andes dictated an order in the presence of the parties and their attorneys which stated that the parties would have shared legal custody of Zachary, that primary physical custody would remain in the father and that the moth~r would have partial physical custody every other weekend, The conciliator stated that the question of venue would be decided by this court and if it was determined that proper venue did not lie in Cumberland County, the mailer would be transferred to Schuylkill County, The conciliator directed that a stipulation be entered by the parties that tbe Dauphin County orders dated September 11. 1987 and August 24, 1994 be vacated and that the action docketed to 1966 S 1987 be dismissed. Therefore, the only order that would be in effl'.Ct until the time of a hearing on the merits would be the order entered as a result of this conciliation conference. The conciliator suggested that both parties tile a supplemental memorandum on the question of venue. DISCUSSION: Venue in custody mailers is governed by Rule of Civil Procedure 1915.2 and the applicable provisions read as follows: (a) an action may be brought in any county (1) (i) which is the hOll1e county of the child at the time of the ,'ommencement of the proceedings, or (i1) which had heen the child's home county within six months he fore commencemeJ1l of the proceeding and the child is abselll from the county because of Ihe child's removal or retention by a person claiming the child's custody or Ii)r other reasons and a parent or person acting as parelll cOlllinues to live in the county; or (2) in which it is ill the best interests of the child that the court decides the mailer because the child and the child's parents. or the child and at least one party, have a signilical1l connection with the county and there is available within the county substantial evidence concerning the child's present or future care, protection, training and personal relationships; or (3) in which the child is physically present and the child has been abandoned or it is necessary in an emergency to protect the child because the child has been suhjected to or threatened with mistreatment or abuse and is otherwise neglected or dependent; The above-quoted provisions of Rule of Civil Procl'.dure 1915.2 are identical to the jurisdiction provisions found at 23 Pa, C. S. Section 5344 (a) of the Uniform Child Custody Jurisdiction Act (UCCJA). I Section 5344 (a) of UCCJA states that the provisions of the act allocating jurisdiction and functions betwccn and among the courts of different states shall also allocate jurisdiction among the Courts of Common Pleas of the Commonwealth of Pennsylvania. There are no cases concerning the intrastate application of the jurisdiction provisions of the llCCJ^ or relevant cases interpreting Rule of Civil Procedure 1915.2 (a). Therefore, we are forced to look to cases which interpret the interstate application of section 5.\44 (a) of the llCCJA, 2:l Pa. c. S, Scctlon 5.144(a), Inllaines v, WilHarlL'i, 4.\1 Pa. Super. 72, 6.15 A. 2d I07? (993), the trial court dedmed to exercise jurisdiction over the custody mallcr. determined that Alabama was the IHlIlle state of the subjcCl childrcn and that jurisdIctIon was found in thc aporoprlate Alabama courl. In that case, the mother was a native of Pcnnsylvania and had lived In Bucks County continuously from the time of her birth until 1984. The mother and father met In 1984 and moved to Alabama In 1986, There were thrce children born to this relationship, the oldest was born in Texas and the two other children were born in Alabama, In 1992, the mother Informed the father that she wantcd to separate and move with the children to Pennsylvania. The father became violent, assaulted the mother and drove off with the three children indicating to the mother that she would never see the children again. The mother subsequently moved to Pennsylvania on September 6, 1992. On November II, 1992, the mother received a telephone call from the father's sister who Indicated that the children had been with her since August, 1992 and requested that the mother come to Alabama and pick up these children. This sister stated that she did not know of the whereabouts of the father. The mother brought the children to her home in Pennsylvania and filed a custody complaint in Bucks County, Pennsylvania. A motion to dismiss for lack of jurisdiction was filed by the father, The Superior Court detcrmined that the trial court did not possess suftkient evidence to decline jurisdiction and rcmanded the nwller to the trial court for further proceedings. The court determined that under section 5.\44 of the llC('JA, jurisdiction may be based on home state jurisdiction, "significant contacts" or flarens patriae jurisdiction. The court stated that the determination of the child's homc state docs not automatically confcr jurisdiction upon thilt state. The court stated that if its analysis was limited solely to a determination of the dlildren's homc state, the court would be constrained to find that jurisdiction existed in Alabama, But, under either a significant contacts or parens patriae analysis, the evidence indicates that Pennsylvania may have jurisdiction, The mother testilied concerning her intent to reside in Pennsylvania and that the children arc thriving in Bucks County. The court wncluded that the violent manner in which the father initially obtained custody, his subsC(juent abandonment of them, the children's resultant physical and emotional condition which rC(juired the mother to come to Alabama as soon as she became aware of their plight estahlished the mother's burden of proof for the Court of Common Pleas of Bucks County to exercise jurisdiction in this case. In the instant maller, the mother became incapacitated on August 17, 1994 while she was driving with Zachary and her other children to Reading. The mother somehow found her way to the Valley Forge Military Park where she and the children spent the night in the automobile. A park ranger found the mother and the children sometime during the afternoon of August 18, 1994 and contacted the Montgomery County Children and Youth office. A caseworker picked up the children and the mother. The father was subsequently notified to pick up his son, Zachary, at Montgomery County Children and Youth. Zachary has been with his father since August 18, 1994 in Cumberland County, Pennsylvania. Although Schuylkill County is Zachary's home county, Cumberland County has venue under Rule of Civil Procedure 1915.2 la) (2) and 1915.2 (a) 0), Zachary has b~n attending school in Cumberland County sincc thc commcnccmcnt of thc 1 YY4.1 Y95 school year and he lives with his father and patcrnal grandparcnts in Cumberland County, Evidencc exists in Cumberland County concerning Zachary's prcsent and future carc, prot~tion, and personal relationships. Furthermore, Zachary was essentially abandoncd by virtue of his mothcr's incapacity in Montgomery County and is now physically present in Cumberland County. An emergency situation existed whereby Zachary, having b~n abandoned and neglected by his mother for almost twenty. four hours was removed by his father to his home in Cumberland County. This case is very similar to the facts outlined above in Baines v. Williams. supra" in Ihat the noncustodial parent was forced by exigent circumslances to take the child to his residence in Cumberland County for the child's S<1fety and protection, The mother was subsequently hospitalized for about two weeks and the father has grave doubts about the mother's ability to adequately care for Zachary on a full.time basis due to her medical problems and since she has two other children to care for. Given the facts of this case, the father has overcome his burden of establishing that Cumberland County has venue to decide this matter. Since the basis for the exercise of jurisdiction outlined in the UCCJA are alternatives and the fact that one slate is the child's home slate does not automatically confer jurisdiction on that slate, ~ Boudwin v. Boudwin, 419 Pa. Super. 570, 615 A. 2d 786 (1992), the same holds true for the intrastatc application of the UCCJA. Although it is not contested that Schuylkill County is Zachary's homc county, venue lies in Cumberland County under Rule of Civil Procedure 1915.2 (a) (2) and 1915.2 (a) (3). THOMAS JUDE BILGER, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION. LAW MICHELE M. BILGER, Defendant NO. 94-4887 CERTIFICATE OF SERVICE I, Deborah K. Spertzel, Esquire. do hereby certify that I have on Ihis date served a true and correct copy of the foregoing Supplemental Memorandum on the following and in the manner indicated: First class United States Mail postage prepaid: Joan Carey, Esquire Legal Services Inc. 8 Irving Row Carlisle. Pa. 17013 I Hand Delivery The Honorable J. Wesley Oter, Jr Cumberland County Courthouse 1 Courthouse Square Carlisle, Pa. 17013 -, I , , i' '/..',;a... /!i / I Date' ,/, ,I . 2/28/95 - Heather THOMAS JUDE BILGER, Plaintiff v. I I I I I I I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW MICHELE H. BILGER, Defendant ,. NO. 94-4887 CIVIL TERM .J IN REI DEFENDANT'S TO VENUB J v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW THOMAS JUDE BILGER, Plaintiff MICHELE M. BILGER, Defendant NO. 94-4887 CIVIL TERM IN-BEI DEFENDANT'S PRELIMINARY OBJECTION TO VENUE BEFORE OLER, J. ~ION and ORDER OF COURT Oler, J. This case is presently before the court for disposition of a preliminary objection challenging venue filed by Michele M. Bilger (Defendant), in response to a petition filed by Thomas Jude Bilger (Plaintiff). Defendant's preliminary objection is made pursuant to Pa. R.C.P. 1915.5. Statement of Facta The defendant, Michele M. Bilger, hereinafter referred to as the mother, is an adult individual who currently resides at 30 Fritz-Reed Avenue, Schuylkill Haven, Schuylkill County, Pennsylvania. The plaintiff, Thomas Jude Bilger, hereinafter referred to as the father, is an adult individual who currently rasides at 1008 East Simpson Street, Mechanicsbu:.:'g, Cumberland County, Pennsylvania. The parties are the parents of Zachary T. Bilger, hereinafter referred to as the child. On or about September 1, 1994, the father filed in the Court of Common pleas of Cumberland County, a Petition for Modification of [Dauphin County] Custody Order of September 11, 1987, I granting primary physical Subsequent to the entry of the order, the mother moved to Schuylkill County and the father moved to Curmerland County. :\ I~(-\ o~ custody to the mother," the Temporary Custody Emergency Order entered ex parte in Dauphin County on August 24, 1994, granting temporary physical custody to the father. An Order of Court was entered scheduling a Pre-Hearing Custody Conference for October 10, 1994. At the Pre-Hearing Custody Conference, the parties and their respective counsel, stipulated to the following facts regarding venue in this actionl 1. Since 1987 the subject child, Zachary Bilger, has reside"in the primary custody of his mother in Schuylkill County. During that time hR has also resided in a household with his two half-brothers, Eric Ward, now age 6, and Trevor Ward, now age 3. 2. The father obtained physical custody of Zachary on or about August 18, 1994, through the intervention of Montgomery County Children Services following an episode at the Valley Forge Military Park where the mother was temporarily incapacitated. The child has resided at the father's home in Mechanicsburg since that time. 3. The mother was hospitalized as a result of her incapacity from August 19, 1994, through 1 September 1994. Since that time she has returned to reside in her home in Schuylkill County where her two sons, Eric Ward and Tre~or Ward, now reside with her. The mother ha~' held employment at a factory Mondays through Fridays since September 15, 1995 [sic] . 4. The child is currently enrolled in the third grade at the Filbert Street Elementary School in Mechaniceburg. He was enrolled there in early September, 1994. Prior to September of 1994, he attended kindergarten, first grade, and second grade in Schuylkill County. 5. The parties agree that it was not the mother's intention 011 August 18, 1994, to give the father permanent or long-term custody of the child, but that she intended only to allow the father to have temporary custody at this time. 6. ~oth parties now desire to have primary physical custody of Zachary.' As a result of the Pre-Hearing Custody Confsrenne, an order was entered directing that the parties would have shared legal custody of the child, that primary physical custody would remain in the father, and that the mother would have partial physical custody every other weekend. This action is presently before this ~ourt for disposition to determine where venue properly lies, in Cumberland County or in Schuylkill County. Statement of Law Initially, it should be noted that venue in this case is governed by Pennsylvania Rule of Civil Procedure 1915.2. I This rule provides that: (a) An action may be brought in any county ( 1) (i) which is the home county of the child at the time of commencement of the proceeding, or ( ii) which had been the child's home county within six months before commencement of the proceeding and the child is absent from the county because of his removal or retention by a person claiming his custody or for other reasons and a parent or person acting as parent continues to live in the county; or (2) in which it is in the best , Conciliator Conference Summary Report, November 9, 1994, Statement of Stipulated Facts Regarding Venue. The Uniform Child Custody Jurisdiction Act, Act of December 19, 1990, P.L. 1240, 52, 23 Pa. C.S.A. 55341 et. seq. is e counterpart to Pa. R.C.P. 1915.2, 14 D. & C. 3d 254, 258 (Dauphin Co. 1980). interest of the child that the court decide the matter because the child and his parents, or the child and at least one party, have a significant connection with the county and there is available within the county substantial evidence concerning the child's present or future care, protection, training and personal relationships; or (3) in which the child is physically present and the child has been abandoned or it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent. ,/ ~ As defined in Pennsylvania Rule of Civil Procedure 1915.1(b). 'home county' means the county in which the child immediately preceding the time involved lived with his parents, a parent , ... for at least six consecutive months .... A period of temporary absence of the child from the physical custody of the parent ... shall not affect the six-month or other period. Furthermore, the term "at the time of commencement of the proceeding" has been construed so as not to be limited to the original proceeding but rather to include actions to modify existing orders. Diffenbach v. Diffenbach, 14 D. & C. 3d 254, 258 (Dauphin Co. 1980). With regard to the burden of proof, "[t]he burden is on the [party] who wants jurisdiction in a forum other than the 'home'; the only justifications for a court's assumption of the possible, but lsss favored, jurisdictions under the 'significant contacts' or 'emergency' provisions are justice and propriety... and physical or emotional harm.... In light of the stated purposes of tho Act, the Commissioners' Comments, and prior case law... the burden on the [party] who wishes to establish an alternative jurisdiction is very heavy indeed." Harman v. Harman, Pa. Super. ___, ___, 439 A.2d 1203, 1211-12 (1982). "As a general rule, the home [county] of the child is the preferred forum. Joselit v. Joselit, 375 Pa. Super. 203, 209, 544 A.2d 59, (1988) . With regard to "emergency" jurisdiction, the Pennsylvania Superior Court has stated that "parens patriae" jurisdiction is inappropriate in a child custody case where no finding of abandonment has been made by the court. Aldridge v. Aldridge, 326 Pa. Super. 49, 55 n.4, 473 A.2d 602, ___ (1984). This conclusion remains intact even if the children have been placed in the custody of the "Children's Bureau." Id. The court then went on to say that "[j]urisdiction exists only if it is in the child's interest . "1 The interest of the child is served when the forum has optimum access to relevant evidence about the child and family." Id. at 56, 473 A.2d at With regard to "significant contacts" jurisdiction, the \ 1-11 PennJylvania Superior Court has held that the five years that 'child had spent in California in the primary custody of his mother, made California the appropriate forum for custody actions concerning the child, and the Pennsylvania court properly declined to exercise juriSdiction, even though . child also had connections with I Pennsylvania, by reason of extensive summer visitation with father in Pennsylvania and substantial evidence concerning his present or future case, protection, training and personal relationships could . I THOMAS JUDE IHLGER, t IN THE COURT OF COMMON PLEAS OF Plaintiff : I CUMBERLAND COUNTY, PENNSYLVANIA I vs. I NO. 94-4887 MICHELE M. BILGER, CUSTODY Defendant MEMORANDUM FACTS Dauphin County entered a Custody Order on September 11, 1987, giving primary custody of Zachary Bilger to his mother. Thereafter, in 1987, the mother moved her family to Schuykill county. Zachary lived there until on or about August 18, 1994, after which time he lived with his father in Cumberland County. On August 24, 1994, Dauphin County entered a Custody Order giving the father temporary physical custody of Zachary. On August 29, 1994, the father filed a Petition for Modification of custody Order in the Cumberland County Courthouse. On September 23, 1994, Legal Services, Inc., on behalf of the mother, filed Preliminary Objections to the father's Petition for Modification of Custody Order. JU,SCUSSION Jurisdiction in custody matters is governed by Rule 1915.2 of the Pennsylvania Rules of Civil Procedure. That provision is identical to the jurisdiction provision within the Uniform Child CustOdy Jurisdiction Act (UCCJA) adopted in Pennsylvania. 23 Pa.C.S.A. section 5341. Therefore, the provisions of the UCCJA have been applied to intercounty disputes within Pennsylvania. Bern v. Bem, 463 A.2d 16, 17 (pa. Super. 1983). The UCCJA providoD throo mot.hods for obtaining jurisdiction in custody mattoro. 'I'ho l'ollnllylvanlll Iluporior Court summarized tho threo methods all CollowOI 55344 (a) ( 1) prov idos Cor "homo" jurisdiction; 55344(a) (2) providoll Cor jurisdiction based on "significant contacto" among the various parties to the custody action and tho localo in which the action has been brought, 55344(6)(3) provides for "paren patriae" jurisdiction for emergoncy situations in which a child is abandoned, abused or dependant. Hattoum v. Hattoum, 441 A.2d 403, 405 (pa. Super. 1982). Home jurisdiction lios within the state in which the child lived for the six conse(:utive months prior to the commencement of proceedings. A state has home jurisdiction if it is the child's home state at the beginning of the proceedings or was the child's home state within six months prior to initiation of proceedings. 23 Pa.C.B.A. section 5344. Horne state is defined as "the state in which the child immediatoly preceding the time involved lived with his parents,..for at least six consecutive months." 23 Pa.C.S.A. section 5343. Although there are throe methods of obtaining jurisdiction, home jurisdiction is the preferred method. The Pennsylvania Superior Court recognizes that "the commissioners who drafted the UCCJA clearly give preference to home state jurisdiction; they acknowledge that in some instances "necessity" will make a contestant "attempt" to establish significant contacts as a base. This, howevllr, is the alternatiVe means." Warman v. Warman, 439 A.2d 1203, 1210-11 (pa. Super. 1982) (emphasis in original). In that case, the Pennsylvania court held that jurisdiction rests in the home state, California, where the child lived with his mother for five years pursuant to agreement of the parties, even though the child had significant contacts with Pennsylvania through extensive visitation with his father. Similarly, this Court should find that jurisdiction rests in Zachary's home county, Schuykill. Pursuant to a custody Order entered upon agreement of the parties, Zachary lived with his mother and brothers in Schuykill county from 1987 until on or about August 18, 1994. During those seven years, a plethora of information has accumulated regarding his past, present, and future care, protection, training, and personal relationships including medical care, schooling, church activity, relationship to other immediate and extended family members of the mother. The magnitude of this information in Schuykill County towers compared to that information accumulated in Cumberland County in the last seven weeks. As a practical matter, home jurisdiction is preferred because that county usually is the one with which the child has the most "significant connection." Boudwin v. Boudwin, 615 A.2d 786 (pa. Super. 1992). In order to get jurisdiction in a county other than the home jurisdiction, the party must rebut that presumption; in Joselit v. Joselit, 544 A.2d 59, 61 (Pa. Super. 1988), the Pennsylvania Superior Court announced that the party who wants jurisdiction in a forum other than the home jurisdiction has a heavy burden of proof. In that case, the burden was not met where the child lived temporarily in New York. Since the plaintiff is attempting to establish jurisdiction in Cumberland county, he has the burden of proof. Zachary is livinq with his tather only temporarily; the pl~intiff has temporary physical custody ot Zachary. Zachary was not abandoned by his mother, but temporarily placed in the custody of the tather. When this action was initiated, Zachary had only lived in Cumberland County tor two weeks. The plaintitf alleges contacts includinq enrollment in school and weekly religious training. However, theso Cumberland County contacts have developed only .ince August 18, 1994. They are shallow as compared tho.e which have developed over a seven year period in Schuykill County. since Zachary's Schuykill County contacts are qreater than tho.e in Cumberland County, the plaintiff does not meet hi. burden ot proot. Even it it were determined that Cumberland county was the proper venue, this Court should decline to hear the case because it i. an inconvenient torum because Schuylkill County is the home .tate, haD cloaer connection with the child and his family, there 1. more readily available substantial evidence concerning the future care, protection, training, and personal relationships of the ohild. 23 Pa.C.S.A. section 5348. CONCLUSION The oa.e in Cumberland County should be dismissed or venue deolined and the matter of custody should be heard, if at all, in Schuylkill County, the child's home county. Schuylkill county and Dauphin County Legal Services programs have agreed to assist the detendant in having the Temporary Dauphin County Order . THOH~8 JUDE BILGBR, ) IN THB COURT OF COMHON Plaintiff ) PLB~S OF CUHBBRL~ND ) COUNTY. PENNSYLV~NI~ vs. ) ) NO. 94-4881 CIVIL TIlRH HICHIlLB H. BILGBR. ) Defendant ) CUSTODY JUDGE PRIIVIOUSI,Y ~SSIGNE\): The Honorable J. Wesley Oler, Jr. l;Q,~~.lIJIATOR CQNPIl.!!~CB SUtlltARY ._~BPORT IN ~CCORDANCE WITH CUHBIlRI,AND COUNTY RULE OF CIV II, PROCEDURE 1915. )-8 (bl, the undersigned Custody Conclliator submits the tollolling report: I. The pertinent information concerning the child IIho is the sUbject of this litigation is as follows: N~HE BIRTHD~TE CURRENTLY IN CUSTODY OP Zachary T. Bilger 22 January 1986 Plaintiff/Father 2. A Conciliation Conference was held on 10 October 1994 and the following individuals lIere present: the Plaintiff and his attorney. Deborah K. Spertzel, Esquire; the Defendant and her attorney. Legal Services, Inc. 3. Some factual background is necessary for the court to reviell and decide the venue objections raised by the Defendant. At the conference the parties and their counsel agreed upon a set of facts to IIhich they stipulated. Attached to this report is a "Statement of Stipulated Facts Regarding Venue" IIhich. hopefully, lIill be a sufficient tactual basis for the court to decide that objection. 4. Once past the venue issue, the court must reach the ultimate issue ot IIhere the child's custody should be. The child lived with his mother until August ot 1994, at IIhich time she had some type at psychiatric episode a. a result of a problem lIith her medication. She was hospitalized trom 19 August through I September 1994 and, THOMAS JUDB BILGER, I IN THB COURT OF COMMON PI~intl(f I PI,BAS OF CUMBERI,AND I COUNTY, PBNNSYLVANIA vs. I I NO. 94-4887 CIVIL TERM MICHBLB H. BILGER, I Defendant ) CUSTODY STATBKBHT OF STIPULATED FACTS RBGARDING VPJruB The above named partles and their counsel, at the custody conciliation before Salluel L. Andes, stipulated to the following facts regarding venue in this action: I. Since 1987 the sUbject child, Zachary Bilger, has resided in the primary custody of his mother in Schuylkill County. During that time he has also resided in a household with his two half-brothers. Eric Ward, now age 6, and Trevor Ward, now age 3. ~. The father obtained physical custody of Zachary on or about August 18. 1994. through the intervention of MontgOMery County Children Services following an episode at the Valley Forge Military Park where the mother was temporarily incapacitated. The child has resided at the father's hOlle in Hechanicsburg since that time. 3. The Mother was hospitalized as a result of her incapacity from August 19, 1994, through 1 September 1994. Since that time she has returned to reside in her home in Schuyikill County where her two sons. Brie Ward and Trevor Ward. now reside with her. The mother has held employment at a factory Hondays through Fridays since September 15, 1995. 4. The child \s currently enrolled in tbe third grade at the Filbert Street Blellentary School in Hechanicsburg. He was enrolled there in early September, 1994. Prior to SepteMber of 1994, he attended kindergarden, first grade. and second grade in SChuylkill County. THOHAS JUDE BILGBR, I IN THB COURT OF COMMON Plaintiff ) PI,BAS OF CUMBERLAND ) COUNTY, PENNSYINANIA vs. ) I NO. 94-4887 CIVIL TERM MICHELI! M. BILGER, I Defendant ) CUSTODY ODD AND NOli, this day of , 1994, upon receipt and review of the , conciliator's report, it appearing that the parties agreed to the terms and provisions , of this order, ~hich was dictated in their presence and approved by tbem and tbeir ~ounsel, we bereby order as follows: 1. Legal custody c~ ~be minor cbild, Zachary T. Bilger, born January 22, 1986, ,sball be shared by his parents, the Plaintiff, Thomas Jude Bilger, and tbe Defendant, :Hicbele H. Bilger. 2. We make no award of pbysical custody at tbis time. However, reserving unto eacb party all of tbeir claims to and defenses to the other party's claims for physical :custody, we direct tbat, pending further order of tbis or any other court of appropriate jurisdiction and venue, tbe child continue to reside at tbe father's reaidence in Hecbanicsburg, and attend school from that residence, except for alternating weekends from Friday at 5:00 p.m. until Sunday at 4:00 p.m., commencing on Friday, October 14, 1994, when the child shall be in the aother's care and with the mother. For purposes of tbe aother's time with the child, the mother shall pick the child up at the father's residence at 5:00 p.m. on Fridays and the father shall pick the child up at the mother's residence at 4:00 p.m. on Sundays. There shall be DO adjustment in that schedule (or the Thanksgiving schedule in 1994. but the child shall I be ~ith the mother over the Christmas holiday from the time tbat the child gets out of school to COMMence that holiday until noon on December 26th and again froM noon on I:Dece.ber 28tb until noon on December 31st and the child sball be ~ith the father, not~itbstanding any of the other provisions of this scbedule, from noon on December ,!26th until noon on December 28th and from noon on December 31st until school resumes in :iJanuary of 1995. After scbool resumes, the mother ~ill continue to have the child alternating ~eekends comeencing on Friday, January 6, 1995. " :1 3. We enter this order recognizing that the parties have disputed the venue of ,ithis case and ~e recognize that each of the parties has reserved all of their claims and defenses to the venue issue, and ~ithout any intention of determining tbe venue :;issue at this time. We viII consider the facts to vhich the parties have stipulated Iland legal arguments submitted by counsel and either determine the venue issue on tbat :,basis or. if the court feels additional facts are necessary. schedule a brief hearing :1 ',on the venue matter. After ve have decided the matter of venue. ve viII eitber Common Pleas of Daup~in County to vacate all prior orders entered in the action pending betveen them in that court to No. 1966-8-1987, and to then formally discontinue that action. The parties have agreed that Dauphin County is not the proper venue for this custody dispute and they have agreed the matter ~ill either be heard by this court or by the Court of C0a8on Pleas of Schuylkill County once ve determine the proper venue. 2 THOMAS JUDE BILGBR, Plaintiff IN THE COURT OF COMMON PLBAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW I I I I I I I NO. 94-4887 CIVIL TERM v. MICHBLE M. BILGER, Defendant IN REI MOTION TO DETERMINE JURISDICTION ORDBR OF COURT ~lor"''D1 day of JaRya.y, 1995, AND NOW, this H.t upon consideration of Defendant's Motion to Determine Jurisdiction filed in this matter, a conference with counsel is scheduled for Friday, February 3, 1995, at 1130 p.m., in the chambers of the undersigned. BY THE COURT, /' ~/ /, . , -~.J. Thomas Blackburn, Esq. 20 South Market Street Mechanicsburg, PA 17055 Attorney for Plaintiff _ C~ ,.,.....f..uf. :J./,J%', ..8,~ Joan Carey, Esq. Legal Services, Inc. 8 Irvine Row Carlisle, PA 17013 Attorney for Defendant Irc / -VII "J o ;-11:::, ~ .?\I \,I~ discussion of venue in his rellOrl. Father flied nn answer to Mother's preliminary objcx:tions on October 4, 1994, ISSUESI I. Oocs venue lie in Cumberland County'! 2. 00 the best interests of Zachary dictate that Father have primary physical and legal custody? DISCUSSION l. Under Rule of Clvill'rocedure 1915.2 (a) (2), venue lies in Cumberland County, Rule 1915.2 (a) (2) slates that an action may be brought in any county in which it is in the best interest of the child that the court decides the mailer becausc the child and the child's parents or the child and at least one party have a significant connection with the county and there is available within the county substantial evidence concerning the child's present or future care, protection, training and personal relationships. Father has lived in Cumberland County since 1986 and whenever Zachary was in his father's custody, he spent this time with his father in Cumberland County, Zachary has been with his father in Cumberland County since August 18, 1994. Zachary is now attending school in Cumberland County and he is enrolled in weekly religious lraining c1asscs at Sl. Joseph's Church in Meehanicsburg. Cumberland ('oonty, :tA1cbary and his father live with Zachary's paternal grandparellls in Cumberland County. Since Father's main concern is the 5.1fety and bcst illlerests of :I~1chary, and Father questions whether Mother, given her medical haekground and history of hospilalilAltions for depression :lIId psychological problems, should have unsupervised visillltion with 1'.1chary let alone custudy uf Zachary, :l.achary' s present and future care is and will be found in Cumberland Cuunty. Therefore, venue Is proper in Cumberland County under I'a, R. C. 1'. 1915.2 (a) (2). Furthermore, venue is proper in Cumberland County under I'a. R. C. 1', 1915,2 (a) (3) which provides that an action may be brought in any county in which the child is physically present and the child has been abandoned or it is necessary in an emergency to protect the child because the child has been subjected to or threatened with mistreatment or abuse and is otherwise neglected. Zachary was effectively abandoned by Mother in Montgomery County and Father, in this emergency situation, took custody of this child due to Mother's incapacity. The child, due to this emergency situation, is in Cumberland County and therefore, in accordance with I'a, R. C. 1'. 1915,2 (a) (3), venue lies in Cumberland County. It is not disputed that Cumberland County has not been the home county of this child for the past six months but, the rule of civil procedure which sillies that venue lies in the home county of the child, I'a. R. C. 1'. 1915.2 (a) (I), is not the exclusive way that a county obtains venue over a custody matter. The facts of this case support a determination that venue lies in Cumberland County under I'a, R, C. 1'. 1915.2 (a) (2) and I'a. R, C. 1'. 1915.2 (a) CI). 2. It is in the best interests of Zachary that primary physical custody remain in the father. The mothcr has been hospitalizcd thrce limcs silK'c (ktobcr, 1991 for deprcssion or other psychological problems. Father contends that there is a rcal issue as to whether Mother should have unsupervised visitatiun with :l';lclmry, The events of August 17 and 18, 1994 suggestlhat Mother's instability and the unpredlctability liS to wlle.n Ihe mother will suffer a relapse and perhaps subjcct her children to danger that Mother should not have primary physical custody of Zachary. It is immaterial that the father of the other two children returned these children to Mother's custody upon her release from the hospital. Mother and the children were very lucky Ihat no harm came to them while they spcntthe night in the car at the Valley Forge Military Park, Mother has been out of the hospital only for a few weeks, Mother lives alone and she has these other two children to care for. She has no family in the immediate area to assist her in caring for these children if she suffers another breakdown. Father lives with his parents in a three bedroom house. lA1chary has his own bedroom and Father is employed at night and is home in time to get Zachary ready for school. Father sleeps while Zachary is in school and gets up in time for Zachary's return from school. Father is able to care for Zachary in the afternoon and evening until it is time for Zacha.ry ready for bed. While the father is a work, Zachary's grandparents are at the house and are able to care for Zachary should the need arise. In Sawko v. Sawko, 425 I'a. Super. 450,625 A.2d 692 (1993), the court determined that a single act may trigger a review of a custody order and may be sufficient to modify or reversc the original custody order where it is so threatening to the child's physical, psychological or moral well-being as to be required in the child's best interest. [n the Sawko ca!IC, the mOl her lIh:d a petition to modify the custody order which had given primary physical custody to the falher. The petition alleged Ihal on one occasion, the father drank a suflicient amount of Blcoholto become physiclllly intoxicated and druve his truck while the minor child was a passenger. As a result, the father drove the truck into a telephone pole. The trial court left primary physical custody in the father but increased the mother's partial physical custody. On lIppeal, thc Superior Court remanded the matter for a ncw hearing. The court stated that this one incident was sufliclentto shift thc balancc as to parental fitness in favor of thc mother. In the instant matter, the incidelil of August 17-18, 1994 shifts the balance in favor of the father. ~ONCLUSION The mother has indicated through her counsel that she intends to request that primary physical custody bc returned to her. Father submits that the mother should have visitation with the child and in faet, the father has told the mothcr that she is welcome to visit in the father's home at any time, Mother has sccn the child at least one day during the weekend since her release from the hospital. rather argues that hc should be awarded primary physical and legal custody of Z1chary and that Mother should have supervised visitation with Zachary, lXSI~ctfully submittcd, ( l~ft{r1~tire Attorney for Thomas Bilger, Plaintiff Blackburn & Spcrt1.el 20 South Market Street Mcchanicsburg, I'a. 17055 (717) 796-1600 IJ) 43121 , THOMAS JUDE BILGER, I IN THE COURT OF COMMON PLEAS OF plaintiff I I CUMBERLAND COUNTY, PENNSYLVANIA I vs. I NO. 94-4887 CIVIL TERM I MICHELE M. BILGER, I CUSTODY defendant I 9~ AND NOW, this _____ day of January, 1995, upon consideration of the attached Motion to Determine Jurisdiction, and the memoranda submitted on this issue by both parties, it is hereby ADJUDGED, ORDERED, AND DECREED that proper jurisdiction in this matter lies in the Court of Common Pleas of Schuylkill County, Pennsylvania. By the Court, J. Wesley Oler, Jr., J. THOMAS JUDE BILGER, plaintiff IN TilE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSVLVANIA NO. 94-4887 CIVIL TERM vs. MICHELE M. BILGER, defendant CUSTODY MOTION TO DETERMINE JURISDICTION The defendant, MICHELE M. BILGER, by and through her attorney, Joan carey, represents the following: 1. The defendant, MICHELE M. BILGER, hereinafter referred to as the mother, currently resides at 30 Fritz-Reed Avenue, Schuylkill Haven, Schuylkill county, Pennsylvania. 2. The plaintiff, THOMAS JUDE BILGER, hereinafter referred to as the father, currently resides at 1008 East simpson street, Mechanicsburg, Cumberland County, Pennsylvania. 3. On September 11, 1987, Dauphin county entered a custody Order giving the mother primary physical custody and the father partial custody. subsequent to the entry of this order, the defendant and her children moved to schuylkill county. 4. On August 24, 1994, Dauphin county Judge, Jeannine Turgeon, modified that Order awarding temporary physical custody to the father pursuant to a Petition for Special Relief. 5. On approximately August 29, 1994, the father, residing in Cumberland county, brought an action in Cumberland county petitioning the Court to modify the original custody Order and a Conciliation Conference was scheduled for October 10, 1994, at 4:00 p.m. before Samuel Andes. 6. On approximately September 23, 1994, the mother filed Preliminary Objections to the Petition to Modify requesting the Court to relinquish jurisdiction to Schuylkill County where the child had resided for several years. 7. On September 23, 1994, this Court ordered the conciliator to hear this matter and include in his report a discussion of the issue of venue. 8. At the conciliation conference, Samuel Andes was provided with memoranda of law on the issue of venue by both attorneys, and facts were stipulated to by the parties on the issue of venue, and the conciliator submitted to the Court his conciliation report as well as the memoranda. 9. On November 17, 1994, this Court entered an Order regarding temporary custody based on an agreement by the parties at concilation and without prejudice to the mother's claim that venue was more properly in schuylkill county; the parties understood that the Court would rule on the issue of venue and that the custody case would be heard either in Cumberland County or in schuylkill County once it determined the proper venue. 10. A Motion to Vacate and Discontinue the action in Dauphin County was granted by agreement of the parties but the parties disagree as to the appropriate venue as between Cumberland and Schuylkill counties. WHEREFORE, the defendant asks this court to decide the issue of venue on the memoranda and stipulated facts submitted, and NO. 94-4887 CIVIL TERM governed by Pennsylvania Rule of Civil Procedure 1915.2.1 Thie rule provides, in pertinent part, as follows I (a) An action may be brought in any county (l)(i) which is the home county of the child at the time of commencement of the proceeding, or (ii) which had been the child's home county within six months before commencement of the proceeding and the child is absent from the county because of the child's removal or retention by a person claiming the child's custody or for other reasons and a parent or person acting as parent continues to live in the county; or (2) in which it is in the best interest of the child that the court decide the matter because the child and the child's parents, or the child and at least one party, have a significant connection with the county and there is available within the county substantial evidence concerning the child's present or future care, protection, training and personal relationships; or (3) in which the child is physically present and the child has been abandoned or it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwJ.se neglected or dependent.... As defined in Pennsylvania Rule of Civil Procedure 1915.1(b), "home county" means the county in which the child immediately preceding the time involved lived with the child's parents...[or] a parent ... for at least six consecutive months .... A period of temporary absence of the child The Uniform Child Custody Jurisdiction Act, Act of December 19, 1990, P.L. 1240, S2, 23 Pa, C.S.A. S5341 et. seq., contains provisions similar to those of Pennsylvania Rule of Civil Procedure 1915.2. 4 NO. 94-4887 CIVIL TERM Pennsylvania Superior Court has held that a period of five years which a child had spent in California in the primary cuetody of his mother made California the appropriate forum for custody actions concerning the child, and that a Pennsylvania court properly declined to exercise jurisdiction, even though the child also had connections with Pennsylvania, by reason of extensive summer visitation with his father in Pennsylvania, and even though substantial evidence concerning his present or future care, protection, training and personal relationships could be found in both states. Warman v. Warman, 294 Pa. Super. 285, 439 A.2d 1203 (1982) . with regard to "emergency" juri.sdiction, the Pennsylvania Superior Court has stated that "parens patriae" jurisdiction is inappropriate in a child custody case where no finding of abandonment has been made by the court. Aldridge v. Aldridge, 326 Pa. Super. 49, 55 n.4, 473 A.2d 602, 605 n.4 (1984). This conclusion remains intact even if the children have been placed in the custody of a county children's bureau. rd. In Aldridge, the court noted that "( j Jurisdiction exists only if it is in the child's interest .... The interest of the child is served when the forum has optimum access to relevant evidence about the child and family." rd. at 56, 473 A.2d at 605. with regard to the doctrine of forum non conveniens in custody cases, the Pennsylvania legislature has set forth the following 6