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TIMOTHY r. KILLIAIt, I IN THI COURT or COMMON .LIAS
.LAIIITIrr I CUMBIRLAlfD COuny, PINIISYLVAltIA
I
V. I No. 94-5303 CIVIL 'JIIRN
I
ALICI L. KILLIAIt, I
DIPlNDAltT I CIVIL ACTION-LAW
ORDIR or COURT
AltD NOW this Z, 1~day of ~ '>>J"~t-' 1996, after reviewing
the Custody Agreement filed in this matter it is hereby determined
that it is in the children's best interest that the Custody
Agreement, dated January 10, 1996, signed by the Plaintiff and
Defendant, be made an order of this court. The Custody Agreement
shall be binding on each of the parties until such time that it is
changed by mutual agreement of the paries or by further order of
this court.
BY THE COURT:
,
J.
." .
TIMOTHY r. KILLIIUI, I IN THI COURT or COMMON 'LIAS
PLAINTJ:rr I CUMBIRLAIID COUNTY, PINN.YLVIUIIA
I
V. I No. 9.-5303
I
ALICI L. KILLIAlf, I
DIPlNDAlfT I CIVIL ACTION-LAW
CU.TOD~ AOREEMINT
THIS AGREEMENT, made this ~ day of ~an~r~ , 1995, by
between AUae L. K1111al1, hereinafter referre4 to as Mother,
Timotby P. Kill1al1, hereinafter referred to as Father.
WITNESSETH:
WHEREAS, Mother and Father are the parents of Erin F. Killian,
born December 16, 1986, and Shannon L. Killian, born July 10, 1988;
and
and
and
WHEREAS by temporary order dated December 20, 1994 Mother and
Father share legal custody and Mother has primary physical custody
of the children subject to Father's specific times of temporary
physical custody; and
WHEREAS, Mother and Father wish to enter into this Custody
Agreement to settle and resolve the outstanding issues regarding
the custody of their children;
NOW THEREFORE, it is agreed by the parties thatl
1. Mother and Father shall share legal custody of the
children, which means that each party is to have equal access to
the children's personal, school and medical records and each party
is to inform the other of significant events that occur in the
children's lives. Each parent shall have access to medical, dental
and school records;
2. The parties shall share physical custody of the children.
a. The parties will alternate physical custody every
week, transferring custody on Wednesdays, by one parent taking
the children to school and the other picking them up from
school. If the children are not in school the exchange shall
occur at the Dunkin Donuts in Enola/Summerdale at 5:00 p.m. or
at some other time and/or place mutually agreed to by the
parties;
b. The parties will alternate custody every other year
during the Christmas holiday which will be from the day th9
children get out of school until 5100 p.rn, on December 28th.
Mother having the children in even years, Father in odd years.
. ...
.
c. Mother and Father shall each be entitled to a two
(2) week, uninterrupted period during the summer provided at
least 30 days written notice is given.
d. Mother and Father agree that if a school holiday
falls during their weekly period and the custodial parent is
working, the non-custodial parent shall be given the option to
oare for the ohildren while the other is at work, unless the
ohildren are with one of their grandparents or other relative,
3. Mother shall be entitled to claim Erin as a dependant on
her inoome tax return and Father shall be entitled to claim Shannon
as a dependant on his income tax return.
4. Both parents understand the need to provide a loving and
stable environment for their childr~n,
5. The parent having physical custody of the children agrees
to encourage contact between the children and the other parent.
6. Mother and Father agree to place their personal
differences aside and work for the best interests of the children.
7. The parties shall provide for reasonable telephone access
to the children,
8. Neither party shall make derogatory comments about the
other in the presence or hearing of the children.
9, Each party is to inform the other of any change in
employment, residence and/or telephone number.
10. Both parties agree to continue to attend counseling.
11, This Agreement shall supersede any and all other
Agreements, Stipulations or orders concerning the custody of the
children.
12. It is the intent of the parties that this Agreement be
made an Order of Court.
l,,/. (( .1. 'r.
WITNESS
\i.; . \ H.f
DATE
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Alioe C. K~llian
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WITNESS
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Killian
CORRECTION
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the children, or any other source, shail not he deeMed prlviloged and the counselor
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shall be free to disclose that InforMation at any subsequent hearings In thla Matter,
2, The tatller shall pay the tees or charges ot the counselor, up to a IIIBXIIIIUIII ot
$500,00, We reserve for later disposition, eltller by agreeMent of the parties or by
tills court after hearing, tile ultimate division ot the expenses resulting from such
counsel1ng. Any payments will be lIIade after utilizing any insurance coverage or public
" assistance paYlllents available to pay for such counsel1ng, It any.
3. Over tbe Christmas hol1day, the mother shall have the chl1dren from Friday,
December 23, 1994, until 10: 00 a.m, on Wednesday, Ilecember 28, 1994, and tile tather
shall Ilave the children from 10:00 a,m. on Wednesday, Decelllber 28, 1994, until he
returns them to their school on the 1II0rning of January 3, 1995,
4. Untli further order of this court, the children shall continue in the East
pennsboro School District.
5, In all other respects, the provisions of our order of DeceMber 14, 1994, shall
remain in tull force and effect until modified by further order of this court.
By the Court,
ThOMas D. Gould, Esquire
Attorney for Plaintiff
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Attorney for Defendant
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, 'rIMOTHY F. KILLIAN,
PlaintiU
IN THB COURT OF COMMON
PLBAS Of CUMBBRLAND
COUNTY, PENNSYLVANIA
NO, 94-5303 CIVIL TERM
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CUSTODY
VB.
ALICE L, KILLIAN,
Defendant
JUDGE PRBVIOUSLY ASSIGNED: The Honorable J. Wesley Oler, Jr.
c~c.!""I^-'!'9_I!,_C9_ta'~_~c.!l,J!!I~RI_~I'!!RT
IN ACCORDANCE WITH CUMIlERLAND COUNTY RULE OF CIVIL PROCEDURE 19l5,3-8Ib), the
undersigned custody Conciliator submits the following report:
1. The pertinent information concerning the children who are the subject of this
litigation is as follows:
NAME
!UJ'lliJ)~'rE
CURRENTLY IN
~USTODY ..91
Erin Fern Killian
Shannon Louise Killian
16 December 1986
10 July 1988
Defendant/Mother
Defendant/Mother
2, A Conciliation Conference was held on 14 December 1994 and the following
individuals were present: the Plaintiff and his attorney, Thomas D. Gould, EsqUire;
the Defendant and her attorney, Joan Carey, Esquire, of Legal Services, Inc.
3. Items resolved by agreement: The parties agreed to consult a psychologist for
review of their problems and claims in an effort to reach some agreement.
4. Issues yet to be resolved: Primary physical custody of the children and a
custody schedule.
5. The Plaintiff's position on custody is as foliows: The father wishes to
re-establish the custody arrangements which existed prior to August of 1994. Prior to
that time, the parties shared custody on a substantially equal basis, with the children
Bpendlng two weeks with each parent (although the father clallllB that the chlldren Bpent
,llIOre tille with him than with the 1II0ther, regardleBB ot that Bchedule). He belleveB the
change in custody which resulted trolll the protection trolll abuse acllon was a lIIiBtake
and that the prior arrangement Bhould be reinstated aB they we ['I! benellc1al to the
children.
6. The Defendant 'Il pos I tion on cUlltody ill as tollows: The ",other contendB that
the father has II drinking problem which causes him to be violent toward her and to
otherwise engage in erratic and irrational behavior. Until such time as the father's
problelll with alcohol iB resolved, she contends, the children Ilhould not be in his
cUBtody for more than weekend periodB.
7. Need for Beparate connsel to represent children: the cone illator sees no need
tor independent counsel for the chlidren and neither party made such a request to the
conciliator,
8. Need for independent psychological evaluation or counseling: the parties
agreed to see a psychologist in an effort to resolve their differences. 'rhey did not
agree to a forlllal evaluation or even to mediation, but rather to express their concerns
to the psycholog1Bt and have the psychologist adville them as to whether those concerns
were genuine,
9, Other lIIatters and comments:
Both parties acknowledged that they shared custody of both children prior to
August. !leither party could point to any real problems which cxiBted during that tillle
and both Beellled generally satistied with the arrangement, as far as it attected the
children. 'rhe 1II0ther's primary cOlllplalnt Is that tho tather behaves Irrationally
because of hi~ drinking and she beiieves that, c~.encinq in the SUMMer ot 1994, that
started to have an adverse eftect on the chiidren. She did not give any specific
instances of that, just a description ot her impressions that hie drinking was causing
problelle.
There was SOllIe type ot an incident bl!tween the parties in Septe~ber. As a result
of that, the ~other filed a protection trom abuse action which was heard by the
Honorable C. Joseph Ilehkamp of Pel'rY County. Although Judge Ilehkamp expressly stated
at the hearing ([ was shown a copy ot the hearing transcript), that he would not
address the issue of custody and he would not enter an order changing custody, the
order he entered in October awarded primary physical custody of both children to the
MOther,
The parties appeared betore Judge Oler very briefly on the day of our conference,
in response to the father's request to Bet aside Judge Ilehkamp's custody order and
return to the prior arrangements, Although I did not eee a copy of Judge Oler's order,
counsel told me that he declined to modity Judge Ilehkamp's order until further
proceedings and a more complete hearing.
The purpose of the psychOlogist is, primarily, to determine if the father has a
drinking problell that impairs his ability to care for the children. If he does not, I
hope that the parties will be able to agree upon an order similar to the one in effect
prior to the PFA action, If not, hopefully the parties will be able to agree upon some
other order which will satiSfy them. The mother made it clear, in her presentation to
lie, that her only objection to the reinetatement of the prior custody arrangements was
her fear about the father's drinking and its adverse effect upon the children. If the
,
I TIMOTHY
F. KILLIAN,
Plaintiff
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IN THE COURT OF COMMON
PLBAS OF CUMBBRLAND
COUNTY, PBNNSYLVANIA
NO, 94-5303 CIVIL TERM
CUSTODY
QID.!!!
! AND NOW, this day of , 1994, upon receipt of the
I conciliator's report, it appearing that the parties have agreed to the terllls and
Ii provisions of tbis order wbich was dictated in their presence and approved by thelll and
I
their counsel, we hereby order as follows:
i 1, The parties and their children will consult a pSYChologist or otber counselor
,
II to be selected by their attorneys, They shall consult such counselor for the purpose
" of .aking known to the counselor each of their concerns about tbe other parent's care
,
of the children and why each of t~em feels the shared custody arrangement which appears
to have existed for the children prior to SepteMber of 1994 shOUld be reinstated or
should not be reinstated, Tbe counselor shall lIIeet with each of the parties on at
least one occasion separately and sbal1 meet with both of the parties on at least two
occasions jointly for this purpose. In addition, tbe counselor shall .eet with the
i
children. in the presence of tbe parents or outside the presence of the parents. on at
least two occasions, Thereafter, when the counselor feels he or she has sufficient
inforlllation, the counselor will attempt to persuade the parties to reach an agreement
on their own to arrange a custody schedule and, if the parties cannot agree, the
counselor shall report to counsel for both parties, either in writing or orally at the
election of the counselor, All information provided to the counselor by the parties,
1
v.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
94-5303 CIVIL TERM
TIMOTHY F. RILLIAN,
Plaintiff/ Petitioner
ALICE L. RILLIAN,
Defendant/Respondent
CIVIL ACTION - LAW
IN RE~ PLAINTIFF'S PETITION FOR SPECIAL RELIEF
ORDER OF COURT
hND NOW, this 14th day of December, 1994, upon
consideration of the Plaintiff's Petition for special Relief and
following a brief hearing prior to the parties' consiliation
conference with Samuel L. Andes, Esquire, the Court enters the
following termporary Order with respect to custody of the
parties' two children, Erin Fern Rillian, born December 16, 1986
and Shannon Louise Rillian, born July 10, 1988:
1, Primary physical custody shall be in the
mother, with partial physical custody in the father, every other
weekend from Friday at 3:00 p.m, until Sunday at 6130 p.m, and
every Wednesday from 4:30 p,m. until Thursday morning when the
children go to school, At the time that the father receives
custody of the children on Friday at 3100 p.m" he shall pick
the children up at their school.
2. This Order shall remain in effect pending any
Order proposed by the conciliator as a result of the conference
scheduled for later this afternoon, and which order is signed by
the Court,
3. If the parties are unable to reach an
agreement at the conciliation conference regarding custody, the
Court will schedule a hearing upon the recommendation of the
conciliator and will enter such order as seems appropriate and
is recommended by the conciliator as a result of the conference.
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ATTO'lf'~E'f Ar LAW
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TIMOTHY P. KILLIAN, . IN THE COURT OP 001 1 ION PLUS
.
PLAINTIFF . CUMBBRLAND COUNTY, PBlfNSYLVANIA
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V. I No. 94-5303
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ALICB L. KILLIAN , .
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DEFBNDANT . CIVIL ACTION-LAW
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REPLY TO DBFENDANT'S PETITION TO DISMISS
PLAINTIFF'S PETITION FOR SPBCIAL RELIEF
1. Admitted that Plaintiff filed a Petition For Special
Relief on October 17, 1994, Admitted that Case No. 94-5303 Civil
Term was initiated as a Protection From Abuse (PFA) case,
subsequently on September 21, 1994 the PFA was amended to include
the custody issue,
It is admitted that Plaintiff's Petition
requested alternative relief, one of which was vacating the Perry
County Order.
The other options included reinstating the
Franklin County order that the parties had followed for over 4
years or issue a new order providing for joint legal custody and
resume alternating weekly changes in physical custody. The
Petition also requested that the matter be set for conciliation
and court if an agreement is not reached before the conciliator.
2. Denied that at the time of the filing of the Petition
for Special Relief there was only a PFA without a custody count.
As stated above a custody count was added on September 21, 1994.
3. Admitted.
4, Admitted.
5. Admitted that Rule 1915,13 provides that special relief
may be filed" after commencement of the action". Denied that
the Petition was filed 10 days before the commencement of the
action. Rather, since the custody amendment to the PFA was filed
on September 21, 1994, the special relief petition was filed
after the commencement of the action.
6. Denied that a custody action was filed in Perry County.
Admitted that on the pre-printed PFA forms in Perry County,
custody is automatically granted to the petitioner. Admitted
that there was a formal custody action in Franklin County in 1989
which was resolved by a court approved Agreement dated April 12,
1990.
7. Admitted that the Perry County PFA order included a
provision granting Ms. Killian, "on a temporary basis, primal'y
custody of the parties minor children, pending further order of
this Court or any other Court that assumes jurisdiction of the
Custody matter". It is unknown the length of time involved in
the Perry County PFA hearing, regardless custody was not an issue
before the Perry County Court. See Notes of Testimony, October
10, 1994 hearing, page 126, 127 & 130.
8. It is admitted that the Perry County PFA was appealed.
It is unknown whether Perry County is writing an opinion,
9. Admitted.
--------.-..------.. ,~._...--------.-
126
1 evident from this record, Thank you.
2 THE COURTI I'm prepared to make my decision here
3 from the bench but I do want to say something before I
4 announce my decision. This case has noW taken the Court's
5 time of approximately a day or a day and a half or so of
6 testimony and although some of the issues raised do relate
7 to credibility of witnesses, I'm not prepared to address
8 the custody -- the issue today anymore then previouslY
9 because I cons'ider t;his a protection f'rom abuse matter that
10 I'm addressing in this order. This order does not have the
11 effect in any way of effecting the rights of either party
12 in a custody proceeding so I want that understood.
13 However, I do feel that there's a factual basis
14 for the allegations in the petition, By a preponderance of
15 the evidence I'm going to find that there is a factual
16 basis without anything further, If you want further
17 specific findings, Mr. Shade, you know what to do. You can
18 file an appeal and I'll put them in writing. I prefer not
19 to do that at this point.
20 This is Alice Killian versus Timothy Killian No,
21 94-767. This will be an order. Now, October 10, 1994
22 after full hearing, this Court finds by a preponderance of
23 the evidence that there is a factual basis for the
24 allegations in the petition and the defendant, Timothy F.
25 Killian, is hereby directed to refrain from abusing,
.1
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_.____.__o_____.
127
1 harassing or threatening the plaintiff, Alice L. Killian,
2 The defendant/ Timothy F. Killinn, is directod to
3 stay away from the plaintiff's residence at 200-A South
4 State Road, Marysville, PA except by agreement of the
5 parties as it relates to visitation or temporary custody
6 schedule to be worked out between the parties concerning
7 the parties two minor children,
8 The plaintiff is granted on a temporary basis
9 primary custody of the parties minor children pending
10 further order of this Court or any other Court that assumes
11 jurisdiction of the custody matter.
12 You've asked for an order excluding him from the
13 school. I'm not prepared to do that, However, I would
14 advise you, Mr, Killian, that if you violate this order and
15 another scene is created at the school, I consider that a
16 violation of this order. You could be found in contempt of
17 this order and the punishment for that is up to six months
18 in jail and/or a $1,000,00 fine, So I would caution you in
19 that regard.
20 I would like to see the father have some type of
21 visitation, temporary custody pending further order of
22 Court. I feel that's appropriate, But like I said, I
23 haven't heard everything about the custody issue. I don't
24 know why there hasn't been visitation up to this point, I
25 don't want to get into that today, I encourage the parties
130
1 THE COURT I I'm telling her to do that. I don' t
2 know what else I can do in this setting.
3 MR, SHADE I Well, I understand but I'm
4 saying __ what I want you to understand is this if I may,
5 Your Honor. We got to be able to pick the kids up at
6 school because that's the only way it's 90in9 to be
7 workable.
8 THE COURTI I didn't exclude him from the
9 school.
10 MR. SHADEl I understand that, too.
11 THE COURT: That'S probably a better way to do it
12 then to have him come up to her house.
13 MR. SHADE: I think so, Absolutely. But what I
14 want you to understand is that these people at the school
15 unless they they almost have to see something in
16 writing from Your Honor in the form of an order saying that
17 he can pick these kids up at school or they're not going to
18 let him have them.
19 THE COURT: I'm not sure if I have jurisdiction
20 on the custody issue at this point.
21 MR. SHADE I Right.
22 ' THE COURT: That'S down in Cumberland County.
23 MR. SHADEl Right.
24 THE COURT: That's why I don't want to impinge
25 upon the jurisdiction of the Court down there because I
.
TIMOTHY F. KILLIAN,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
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NO. 94-5303 CIVIL TERM
ALICB L. KILLIAN,
Defendant
ORDER OF COURT
AND NOW, this i"~1~ day of December, 1994, upon consideration
of Defendant's Petition for Rule To Show Cause Why Plaintiff's
Petition For Special Relief Should Not Be Dismissed For Failure To
Conform To Law and upon relation of Plaintiff's counsel that
Plaintiff will not agree to cancel the hearing scheduled for
Wednesday, December 14, 1994, at 1130 p.m., notwithstanding that a
custody conciliation is scheduled for 3100 p.m. on the same day and
that an interim custody s~hedule has been agreed to by Defendant,
the Defendant's Petition is DENIED to the extent that it seeks
cancellation of the Court hearing.
Nothing in this Order is
intended to foreclose the Court's consideration of the legal issues
raised in Defendant's Petition at the hearing.
Each party will be given 15 minutes at the hearing, so that
the custody conciliation may be held liS scheduled.
BY THE COURT,
.
Thomas D. Gould, Esq.
2 East Main Street
\ Shiremanstown, PA 17011
.. ,'I' Attorney for Plaintiff
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Joan Carey, Esq.
Legal Services, Inc.
Attorney for Defendant
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LIGAL IIfIVICU, INC.
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6, Custody litIgation had been filed in the past in two
other forums, Franklin County in 1990, where a Consent Order was
entered, and, as a part of n Protuctlon From Abuse Action in
Perry County on September 15, 1994.
7. After hearing SIX hours of testimony, the Perry County
Court entered a temporary custody order to be in effect pending
further order int he Perry County Court of Common Pleas "or any
other court that aSGumes jurisdlctlon of the custody matter."
(Attached as Exhlblt "A".)
8. The Court of Common Pless of Perry County is currently
writing an oplnion on the issue of custody, AS the defendant has
appealed the Perry County decislon.
9. The defendant agrees to have the long-term custody case
determined in Cumberland County.
10. The defendant has agreed to the followlng temporary
custody schedule pending final resolution of this matter: The
father would have the children every other weekend from Friday at
4:00 p.m. until Sunday at 6:30 pm. and every Wednesday from 4:00
p,m, unti I Thursday morning, when the chi ldren go to school.
WHEREFORE, the plaintiff requests that the Court determine
that t~e PetItIon for Special Relief should be dlsmlssed, and the
case shoul d proceed to cone I 11 at I on on December 14, 1994, as
ordered by the Court on November 7,1994, leaving the Perry
County Order, witrl the specific schedule specified above, in
71!~-232-7G.21 (PlS - H,"t~RI'!,8U~G
'~1l; P02
r'E': 09 :~'
ALICE L. KILLIAN
v.
I IN TNI COURT or COMMON PLIAS
I or THB 41ST JUDICIAL DISTRICT
I or PINNSYLVANIA
I PERRY COUNTY BRANCH
I NO. 94-767 F.r.A.
TIMOTH~ P. KILLIAN
ORDeR
AND NOW, October 10, 1994, efter a full hearing, this Court
find. by a preponderance of the evidence that there is a factual
bash for the allegations in the petition and the Defendant,
Timothy P. Killian, ia hereby directed to refrain from abusing,
harasaing or threatening the Plaintiff, Alioe L. Killianl
The eefendant, Timothy Po Killian, ia direoted to stay away
trom the Plaintiff'. re.idence at 200A South State Road,
Marysv!lle, PA, except by agreement of the parties .a it relates
to . v1aitet ion or temporary oustody SChedule to be worked out
between the partie. concerning the parties' two minor childrenJ
The Plaintiff is granted, on a t~mporary basie, primary
QUstody of the partie.' minor ohildren pending further order of
this Court or any other court that assumes jurisdioCion of the
cuatody matter.
Thie Order ahall remain in effect for a periOd ot one (1)
year to date from this date.
A oopy of this Order ehall be provided to local law
enforcement agencies tor enforcement of thia Order.
The Defendant Shall not .talk the P~:in~ff a. defined under
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CUMllElll.ANIl COl/tlTY. PENN SYLVAN [A
1l0MliSTIC IlEl.ATlONS SEC'l'ION
CIVIl. ACTION - 5UPPOllT
,OEFENDAN'l' NO, 56~__ Of 1993
v,
TIterHY F. KILLIAN
AMENDED RECOMMENDED OllDER Of COUIl'l'
IIND NOW, this 19th day of Auqust , 19 93 , upon consideration of
the recommendation of the Domestic Ilclations Office. IT ISIIEIlEBY ORDERED AND DIRECTED
that the prior order of support entered in thi~ case dated August 14. 1990 be
amended 50 that the Defendant shall pay through the Domestic Relations Office,
P,O, Box 320, Carlisle. I'A 17013, the sum of $ -0- pH n/a for and
toward the support of his 2 children. Erin, born 12-16-86 and Shannon, born 7-10-88.
This order takes into consideration that the Au t 14 1990 Order of Suooort enterM
y Fran County is suspended retroactive to April 23. 1993. for the reason. the
defendant now has the primary physical custoov of the two (2) beneficiarv chi 1<'I....n
and that he/she shall pay the additional sum of $----'lLlL- per nla to
apply on the arrearage of S 1.031.50 until said arrearage has been paid in full.
The order shall be effective ~ril 23. 199",L__, Except as amended the order shall
remain as heretofore.
IT IS FURTIlER ORDERED that the parties inform the DOll1estic Relations Office of
any change of employment. change of pe.rsonnl or employment address, or change of
address of any child receiving "UpPOrr ill writing or by personal appearance in the
Domestic Relations OHice within seven day" of such change. Should a party wilfully
fail to inform the Domestic Relations Office of the required information, the court
may adjudge the party to he in contempt of court pursuant to Rule 1910,21, and may
order the party to be punish~d by on<, or more the following: jail, fine, or probation,
_When tJccumulateo arrears ('qu~11 ul' excl'L't! onl..' l11onthl~ support obligation the
Defendant '5 income will nlltom,)t lcnlly b" ilttilclll'd, X TIl<' '^,fendant '5 income is
Attached ,--'-
This Ordc'r ~;h;lll h('("'I1Io' fil1.11 l'I'1l d,I\"; .llt.'r rill' m;lilill" Ill" till' lloti('tl or th(--1
t.:11~1) ll. Lllo..: '.Ji ~n.l l,u Llll' I!.lt ~.' ",I,l
Domestic Relations Section for a h~arlnp, dt? 'HlVO
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court.
J,
Edgar B. Bayley,
Defendant I Wayne F, Shade, Esquire
DRCh F, Goshorn
bjh
EXFIBlT "A"
DHO 11510
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TIMOTHY r. KILLIAlf, I IN THB COURT or COMMON PLBAS
PLAINTIFP I CUMBBRLAND COUNTY, PBNNSYLVAlUA
I
V. I No. 94-5303
I
ALICB L. KILLIAN, I
DBPBNDAlfT I CIVIL ACTION-LAW
PETITION FOR SPECIAL RELIEF
AND NOW comes the plaintiff, Timothy F. Killian, by and
through his attorney, Thomas D, Gould, and requests this honorable
court to reinstate the Franklin County order or grant him joint
legal and physical custody of his children until the custody issue
has been resolved by agreement of the parties or further order of
court based on the following:
1. Plaintiff, Timothy F, Killian, hereinafter referred to as
father, is an adult individual who resides at 3 N. Enola Drive,
Enola, Cumberland County, pennsylvania,
2. Defendant, Alice L. Killian, hereinafter referred to as
mother, is an adult individual who resides at 200-A S, State Road,
Marysville, Perry County, Pennsylvania.
3. Plaintiff and Defendant are the natural parents of Erin
Fer. Killian, 12/16/86, and Shannon Louise Killian, 7/10/88.
4. Pursuant to an Order dated April 18, 1990 the Franklin
County Court of Common Pleas, Judge Keller, approved the Agreement
For Order Of Custody dated April 12, 1990 whereby the mother and
father were to have joint legal custody and alternate physical
custody on a weekly basis,
5. Mother filed a Petition For Protection From Abuse in
Perry county on September is, 1594.
6. The Franklin County custody order was in effect at the
time mother filed her P~o Se Petition For Protection From Abuse.
7. Mother had marked on her Petition that she be granted
temporary custody of the children.
8. An ex parte Order dated September 15, 1994 was issued by
the Court of Common Pleas of Perry county which granted mother
primary custody of the partiell' minor children.
9. The parties had been operating under the Franklin County
order for a period of over four (4) years,
10. On September 16, 1994 the father, through his prior
attorney, Wayne F. Shade, filed a petition For protection From
Abuse.
11. On September 16, 1994 a Temporary Protection Order was
issued by J. Wesley Oler enjoining mother from physically abusing
father and excluding mother from father's residence,
12. On September 21, 1994 father filed a Petition For
Amendment of Temporary Protection Order with this honorable court.
13. The Petition requested that the court issue a Rule upon
mother to show cauae why the ex parte temporary Perry County order
granting her custody of the children should not be terminated and
the issue of temporary custody joined with the pending protection
from abuse matter in Cumberland County and ultimately referred to
conciliation in Cumberland County,
14. The hearing scheduled for September 26, 1994 in
Cumberland county was continued until the completion of the Perry
county Protection From Abuse.
15. The Perry county Court issued a PFA order on October 10,
1994 in which it granted mother, on a temporary basis, primary
custody of the parties' minor children pending fUl'ther order of
this court or any other court that assumes jurisdiction of the
custody matter. A copy of the order is attached,
16, Father believes that I under the Protection From Abuse
Act, 23 Pa.C.S, Section 6108(a) (4), it was error for the Perry
County Court to issue an order affecting the custody of the
children without a finding that the father had abused the children
or that he would be removing the children from the jurisdiction of
the court since there was a valid custody order from Franklin
County Court and a pending custody matter in Cumberland County.
17. By Perry county issuing the September 15 and october 10,
1994 orders the status quo of the children and the father's right
to be with his children has been changed.
18. No valid custody complaint has been filed in Perry County
so as to grant it jurisdiction over the custody of the parties'
children.
19, Mother has used the Perry County orders to deny father
access to his children.
20. Since September 13, 1994 mother has refused to allow
father to have any contact with his children.
21. Mother's attorney, Allen Rose, has been unable to
persuade his client to allow father to have any contact with his
children.
22. Father has not had any contact with his children for over
one month.
23. On October 10, 1994 the Perry County Court advised the
parties to immediately work out arrangements to allow father to
have regular contact with his children.
24, Mother continues tc deny father any contact with his
children.
WHEREFORE, it is requested that this honorable court issue an
order vacating the Perry County Order of October 10, 1994 and
reinstating the Franklin County Order of April 18, 1990 or
alternatively, it is requested that this honorable court issue an
order providing for joint legal custody of the children and
ordering the parties to resume the alternating weekly change of
physical custody that had been in effect since April 18, 1990,
pending agreement of the parties or further order of court. It is
also requested that this court order that this matter be set for
conciliation and if no agreement can be reached, then set for
hearing.
Respectfully submitted,
Tlirn-n.<tJ ij .....~k-t(()
Thomas 0, Gould
Attorney for plaintiff/Petitioner
1.0. (I 36508
2 East Main Street
Shiremanstown, Pa 17011
(717) 731-1461
Fax 761-1974
.-......--
ALICE L. KILLIAN
v.
I IN THE COURT OF COMMON PLBAS
I OF THE 41ST JUDICIAL DISTRICT
I OF PENNSYLVANIA
I PERRY COUNTY BRANCH
I NO. 94-767 P,F.A.
TIMOTHY F. KILLIAN
ORDf:R
AND NOW, October 10, 1994, aftor a full hearing, this Court
finds by a preponderance of the evidence that there is a factual
basis for the allegations in the petition and the Defendant,
Timothy F. Killian, is hereby directed to refrain from abusing,
harassing or threatening the Plaintiff, Alice L. Killian:
The Defendant, Timothy F. Killian, is directed to stay away
from the Plaintiff's residence at 200A South State Road,
Marysville, PA, except by agreement of the parties as it relates
to a visitation or temporary custody schedule to be worked out
between the parties concerning the parties' two minor children:
The Plaintiff is granted, on a temporary basis, primary
custody of the parties' minor children pending further order of
this Court or any other court that assumes jurisdiction of the
custody matter.
This Order shall remain in effect for a periOd of one (1)
year to date from this date.
A copy of this Order shall be prov ided to local law
enforcement agencies for enforcement of ehis Order.
The Defendant shall not stalk the Plaintiff as defined under
"
----------
Friday evenings at 5tOO p.rn, until the following Friday
ni<;1ht at StOO p,rn. t
B, Mother shall have physical custody of the minor
children on alternating weeks commencing on alternating
Friday evenings at 5tOO p.m. until the followin<;1 Friday
evening at 5:00 p.m.,
C, For tho purposes of this Agreement the parent who
is to received the minor chi~dren into his or her custody
shall be responsible for picking the minor children up at
the custodial parents residence:
D. The parties further agree that the Holiday Schedule
for physical custody shall be as follows:
HOLIDAYS EVEN YEARS ODD YEARS
New Years Day Mother Father
Easter Sunday Fatl-.er Mother
Halloween Mother Father
Thanksgiving Day Father Mother
The above Holiday Schedule shall commence that Holiday
morning at 9:00 a.m. and shall end the same day at 7:00
p.m. ;
E. In addition to tr..;; above Holiday Schedule. the
parties agree that the Christmas Holidays shall be divided
into separate Holidays as follows:
1. Christmas Eve Holiday shall commence on
December 21. at 10:00 a,m. and shall continue until December
25. at 10:00 a,m.:
2. Christmlls Day Holiday shull commence on
December 25. at 10:00 lI,m. until Decerr~a~ 29, at 10~00 a,m.;
3. The parties Bhall enjoy the above-referenced
Christmas Holiday as follows~
HOLIDAY glEN YEARS ODD YEARS
Christmas Eve Mathe" Father
Christmas Day Father Mother
F. The parties further agree that Father shall have
the minor children on each and every Father's Day and Father
shall have the minor children each year on Father's
Birthday, which is on August 17. Said partial custody shall
commence 9:00 a,m. uncil 7:00 p.m. that same day;
G. It is also agreed that Mother shall have the minor
chi ldren on each and every Macher's Day as 'well as Mother's
Birchday, which is on February 14. Said partial custody
~hall commence 9:00 a.m. and continue until 7:00 p,m, that
same day;
H. It is further ag~eed that on each of the children's
birthdays the non-custodial parenc, shall be entitled to
partial cuscody of boch children cogecher for a continuous
chree (3) hour period;
I. In the evenc that the above-referenced Holiday
Schedule, in any manner whatsoever, conflicts with the
routine physical custody rights of the parties while they
exercise their alternating weeks with the minor children,
then in that event, the Holiday Schedule shall take
precedence over the routine alternate weekly schedule;
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/1/ 111-1461
WIll .' . 1394'\
TIMOTHY F. KILLIAN, I IN THE COURT OF COMMON PLEAS
PLAINTIFF I CUMBERLAND COUNTY, PENNSYLVANIA
I
~ V. I No. 94-5303
~
ALICE L. KILLIAN, I
DEFENDANT CIVIL ACTION-LAW
ORDER OF COURT
AND NOW, upon consideratiOl; of the attached complaint, it is
hereby directed
that the parties and their respective counsel
c. "".di \ l , f I". I,'" Esquire, the conciliator, at
appear before
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vi , J
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, 199~, at
.
on the
42.M., for a pre-Hearing
11./,/1, day of
Custody Conference. At such conference, an effort will l.J.. 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. Either party may bring the child who
is the subject of this custody action to the conference, but the
children's attendance is not mandatory. Failure to appear at the
conference may provide ground:.; for entry of a temporary or
permanent order.
l .
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YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AF~ORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE 'IOU CAN GET LEGAL HELP.
For the Court, .
.- - -;/, tl I
/
OFFICE OF THE COORT ADMINISTRATOR
COURTHOUSE, 4TH FLOOR
CARLISLE, PA 17013
(717) 240-6200
TIMOTHY F. KILLIAN, I IN THE COURT OF COMMON PLEAS
PlAINTIFF I CUMBERLAND COUNTY, PENNSYLVANIA
I
V. I No. 94-5303
I
ALICE L. KILLIAN, I
DEFENDANT I CIVIL ACTION-LAW
CUSTODY COMPLAINT
TO THB HONORABLE JUDGES OF SAID COURTI
1. plaintiff, Timothy F. Ki llian, hereinafter referred to as
father, is an adult individual who resides at 3 N. Enola Drive,
Enola, Cumberland County, Pennsylvania.
2. Defendant, Alice L. Killian, hereinafter referred to as
mother, is an adult indJ, vidual who resides at 200-A S. State Road,
Marysville, Perry County, Pennsylvania.
3. Plaintiff seeks legal and primary physical custody of the
following children:
Erin Fer~ Killian
200-A S. State Road
I!.QB
12/16/86
7/10/88
~
PRESENT RESIDENCE
Shannon Louise Killian
Marysville, PA 17053
The children were not born out of wedlock.
The children are presently in the custody of Alice L. Killian,
who resides at 200-A S. State R0ad, Marysville, Perry County, PA.
5. The relationship of Defendant to the children is that of
mother. The Defendant currently resides with the following
persons I
IfjUgg
Erin Fer. Killian
Shannon Louise Killian
Rela!;ionship
daughter
daughter
6. The parties have participated as a part in other
litigation concerning the custody of the children in Franklin
County, F.R. 1989-820, and Perry county 94-767 P.F.A..
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.
7. The best interest and permanent welfare of the children
will be served by granting the relief requested because:
A. Plaintiff has participated in the primary care of
the children throughout their lives.
B. Plaintiff can pre-vide a stable environment.
C. Plaintiff can provide a loving home.
D. Plaintiff will foster a better relationship between
the children and the non-custodial parent.
8. Each parent whose parental rights to the children has not
been terminated and the person ~ho has physical custody of the
children have been named as pClrties to this action.
Friday evenings at 5:00 p.m. until tho following Friday
night at 5:00 p.m,:
B. Mother shall have phyoical custody of the minor
children on alternating weeks commencing on alternating
Friday evenings at 5:00 p.~. until the following Friday
evening at 5:00 p.m.:
C. For the purpose 0 of this Agreement tho parent who
is to received the minor chU.dren into his or her .:ustody
shall be responsible fo~ picking the minor children up at
the custodial parents residence:
D. The parties furthar agree that the Holiday Schedule
for physical custody shall be as follows:
HOLIDAYS EVEN YEARS ODD YEARS
New Yea:>:s Day Mother Father
Easter Sunday Father Mother
Halloween Mother Father
Thanksgiving Day Father Mother
The above Holiday Schedule shall commence that Holiday
morning at 9:00 a.m. and shall, end the same day at 7:00
p.m. ;
E. In addition to the above Holiday Schedule, the
parties agree that the Christmas Holidays shall be divided
into separate HOlidays as follows:
1. Christmas Eve Holiday shall commence on
December 21, at 10:00 a.m. and shall continue until December
25. at 10:00 a.m.;
2. Christmas Day HOliday shall commence on
December 25, at 10100 a.m. until December 29, at 10100 a.m.l
J. The partios shall enjcy the above-referenced
Christmas Holiday as follows:
HOLIDAY gJEN YEARS ODD YEARS
Christmas Eve Mother Father
Christmas Day Father Mother
F. The parties further agree that Father shall have
the m:.nor children on each and every Father's Day and Father
shall have the minor children each year on Father's
Birthday. Which is on August 17. Said partial custody shall
commence 9:00 a.m. until 7:00 p.m. that same day;
G. It is also agreed that Mother shall have the minor
children on each and every Mother's Day as well as Mother's
Birthday, which is on February 14. Said partial custody
~hall commence 9:00 a.m. and continue until 7:00 p.m. that
same day;
H. It is further agreed that on each of the children's
birthdays the non-custodisl parent, shall ba entitled to
partial custody of both children together for a continuous
three (3) hour pericd:
I. In the event that the above-referenced Holiday
Schedule, in any manner whatsoever, conflicts With the
routine phYSical custody rights of the parties while they
exercise their alternating weeks with the minor children,
then in that event, the Holiday Schedule shall take
precedence over the routine alternate weekly schedule;
TIMOTHY F. KILLIAN, I IN THE COURT OF COMMON PLEAS OF
Plaintiff I CUMBERLAND COUNTY, PENNSYLVANIA
I
V I CIVIL ACTION - LAW
I
ALICE L. KILLIAN, I
Defendant I NO. 94-5303 CIVIL TERM
ORDER OF COURT
AND NOW, this
)' ,I
, )
, day of SEPTEMBER, 1994, a
protection from abuse and custody petition having been filed in
Perry County, September l5, 1994, and a hearing having been set
there for Wednesday, September 28, 1994 the hearing in Cumberland
County is deferred generally and the court will reset the hearing
after consultation with counsel after the Perry County hearing.
The temporary order entered by Judge Olar in this court on
September 21, 1994 shall remain in effect.
By the Court,
J \~ l J \ . \ (,- _
Harold E. Sheely, P.J.
Wayne Shade, Esquire ~
For the Plaintiff
Carol Lindsay, Esquire
For the Defendant
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TIMOTHY F. KILLIAN, I IN THE COURT OF COMMON PLEAS OF
Plaintiff I CUMBERLAND COUNTY, PENNSYLVANIA
I
V I CIVIL ACTION - LAW
I
ALICE L. KILLIAN, I
Defendant I NO. 94-5303 CIVIL TERM
ORDER OF COURT
AND NOW, this
2.. 31-
, day of SEPTEMBER, 1994, a
protection from abuse and custody petition having been filed in
Perry County, September 15, 1994, and a hearing having been set
there for Wednesday, September 2B, 1994 the hearing in Cumberland
County is deferred generally and the court will reset the hearing
after consultation with counsel after the Perry County hearing.
The temporary order entered by Judge Oler in this court on
September 2l, 1994 shall remain in effect.
By the Court,
~~c~ \ ~ _ ~/'-
Harold E. Sheely, P.J.
Wayne Shade, Esquire
For the Plaintiff
Carol Lindsay, Esquire
For the Defendant
lsld
_-AU
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TO
YOU ,Ul HUU'Y "'oumo TO IILI A
WlmUN Itll'O"'U to THI UCLOnO
WITH'" TWlNll UQ) DAYI
r.OM SlAVIc[ HUlIDr OA A IVOGlllilNl
MAY II (1"11110 AGAIN" YOU
IV
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CMlIISII.I).,,..,,,"\I\1ANIA 171)1.\
SEP 2 0 199~
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WE. 00. HUIIIY cumy lilA' IHI
WUHIN IS A "IUE. AND COUIC' CO"
of 'HE. OIUQINAl mID IN IHI&
AClIOII.
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WAYNE F. SHAIlE
Anomey Il Law
~ Soulh Hanont Strtrl
Carlillt, PcM.ylvani.
17013
1~ .
The support case was transferred from Franklin county to
Cumberland county.
13.
By Order of August 19, 1993, this court in the person of
Judge Bayley executed an Order at No. 569 support 1993 suspending
the support Order against the father retroactive to the date of
the request by the father therefor for the reason that the father
had de racto primary physical custody of the children, a copy of
said Order's being attached hereto as Exhibit "A" and
incorporated herein by reference dS though fully set forth.
14.
The mother never appealed the Order of Judge Bayley.
15.
The mother continued to fail to exercise her custodial
rights under the Franklin county Order of April 18, 1990, until
she received a letter of July 20, 1994, from the Perry county
Assistance Office indicating its verification that the children
were living with their father in Cumberland County, a copy of
said letter's being attached hereto as Exhibit "B" and
incorporated herein by reference as though fully set forth.
16.
After receiving said letter from the Perry County Assistance
Office, the mother began attempting to assert custody rights
solely to preserve her welfare benefits.
-)-
WAYNE F. SHAUE
^aome~ I' I..w
~ South Hanover 51ml
l'.,lhlc I PfMI)'lvaniQ
170U
17.
At the time that we filed our Petition for prot(~ctive Order
herein, we had no knowledge that the mother had tiled a pro se
Petition for Protection from Abuse in Perry county, Pennsylvania,
with respect to the same events of September 13, 1994, which
formed the basis for the father's Petition herein.
18.
Also at the time that we filed our Petition for Protective
Order, we had no idea that custody was going to be an issue in
view of the mother's longstanding acquiescence in the de facto
primary physical custody in the father.
19.
The Temporary Protective Order of September 15, 1994, at No.
94-767 in the Court of Common Pleas of Perry County,
Pennsylvania, a copy of which is attached hereto as Exhibit "C"
and incorporated herein by reference as though fully set forth,
granted temporary primary custody of the children to the mother
through the medium of a printed form.
20.
The procedure in Perry County is that protection from abuse
actions are initially processed by District Justices on the
aforesaid printed forms.
-4-
oustody issues to conciliation in cumberland county,
Pennsylvania, as the home jurisdiction of the children.
Respectfully submitted,
w<<L~~hi:..dl~re
supreme Court I.D. 115712
5 South Hanover Street
Carlisle, Pennsylvania 17013
Telephonel 717-243-0220
Attorney for Petitioner
, '
WAYNE F. SHAllI:
AUomry II law
.5 South H.&ncw., Slnel
e.,UIII, PrMJY'VMitl
1701l
-6-
v.
IlH _D,1,:tIl.------
, 1'1,;\1;\'1'1 FI' It' 1'111: ,;U@l UI' ,;UNJ'IUN I'LI:;A~ \)1'
CUMlllmLANll CDUNlY. I'IiNNS'iI,vANIA
IlOMI\S'l'IC Im.A'l'lONS SIiC'l'ION
CIVIL ACTION - ~UPPOHT
. 1m FEN llAN'l' NO. .2.QL_ OF 1993
N.W' I.. KILLIAN
TIl>Pl'lf{ F. KILLI1\N
AMENDEll HI\COMMENDlm OI111ER OF COURT
AND NOW, this 19th day of AUQUst . 19 93 , upon consideration of
the recommendation of the Domestic Helntions Office, IT ISIIEREB'i ORDERED AND DIRECTED
that the prior order of support entered in thi~ case dated Auqust 14. 1990 be
amended so that the Dafendant shall pay through the Domestic Relations Office,
P.O. Bolt 320, Carlisle, PA 170l3, the sum of $ -0- per n/a for and
toward the support of his ;1. children, Erin, born 12-16-B6 and Stwnnon. born 7-l0-BB.
This order takes into consideration that the Au t 14 1990 Ord 0 U
Y an County is suspended retroactive to April 23. 1993. for the reason. the
defendant now has the prilMrv physical custodv of the two ( 2) beneficie.rv chi1tlrAn
and that he/she shall pay the additional sum of $ n/a per n/a to
apply on the arrearage of $ 1.031.50__ until said arrearage has been paid in full.
The order shall be effective AprH 23. 1993 Except .1S amended the order shall
remain as heretofore.
IT IS FURTHER ORDERED that the parties inform the Domestic Relations Office of
any change of employment, change of p"rsonal or employment address, or change of
address of any child receiving support ill writing or by personal appearance in the
Domestic Relations Office within seven days of such change, Should a party wilfully
fail to inform the Domestic R<.llatiolls Office of the required information, the court
may adjudge the party to he in contempt of court pursuant to Rule 1910.21, and may
order the party to be punbhvu by one or more the following: jail. fine. or probation.
_tolhen accumulated arrellrs (.gu,11 0" exceed one month's support obligation the
Defendant's income will automat ica Ill' 1)(' at.t ached. _li_The De fendant 's income is
IIttached,
Thi~ OrdC'r ~h.111 "('('11ml' '" ill;,l tl'll d:l\'''; ,lft,,1' r"hr> 1I1.,j 1 il1P of thp not i('l' of the
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Domestic Relations Section for a hearinr, de novo court.
Edgar B. Bayley,
J.
Defendant: Wayne F. Shade, Esquire
COO: F. Goshorn
bjh
EXFIBIT "A"
DIW 11510
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j';XHIBIT "B"
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WAYI'IE F, SHAllI'
Aftomty II I..tw
5 Soolh Hanuvu Slft',,1
C.rllllr. PrMlyl\lllliA
170ll
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.,
TIMOTHY F. KILLIAN,
IPlaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PE~~SYLVANIA
CIVIL ACTION - LAW
v.
NO. 94- ',I,', 1
CML TERM
.,1.'__
ALICE L. KILLIAN,
Defendant
PROTECTION FROM ABUSE
TEMPORARY PROTECTIVE ORDER
AND NuW, this
/1. ~.
-,
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.
, 1994, upon
day of
consideration of the within Petition and upon finding that
Petitioner is in immediate and present danger of abuse from
Respondent, the following Temporary Protective Order is entered.
Respondent is hereby enjoined from physically abusing
Petitioner or placing him in fear of imminent serious bodily
injury and is excluded from the residence of Petitioner at 3
North Enola Drive, Enola, Pennsylvania.
This Order shall remain in effect until a final Order is
entered in this case. A hearing shall be held in this matter on
7M ~-II d hJ
J:.~ (J
, the
. ",,:.-'- day of' I
,L _ .dt A 7;.~... ..' 1&
,
, 1994, at
o'clock I.M. in Courtroom No.
'J
Cumberland
county Courthouse, CarliSle, Pennsylvania.
The East Pennsboro Township Police Department will be
provided with a copy of this Order by counsel for Petitioner and
may enforce this Order by arrest for indirect criminal contempt
without warrant upon probable cause that this Order has been
violated, whether or not the violation is committed in the
presence of a pol ice of ficer. In the event that an arrest is
made under this section, Respondent shall not be taken to jail,
f\lE CG~~
TIMOTHY F. KILLIAN/
plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
CIVIL TERM
NO . 94 -
ALICE L. KILLIAN/
Defendant
PROTEC'rION FROM ABUSE
PETITION FOR PROTECTIVE ORDER
PROTECTION
1 .
Petitioner is an adult individual who resides at 3 North
Enola Drive, Enola, cumberland county, Pennsylvania 17025.
2.
Respondent is an adult individual who resides at 200-A South
state street, Marysville, Perry county, Pennsylvania 17053.
3.
Petitioner and Respondent are the divorced parents of two
minor children, namely, Erin Killian, born December 16, 1986; and
Shannon Killian, born July 10, 1988.
4.
The children reside in primary custody with their biological
father, the Petitioner herein.
5.
On or about September 13, 1994, Respondent was scheduled to
pick up the children from school.
6.
On that date, she placed a telephone call to Petitioner,
WAYNE F, SHAllE stating that she could not pick up the children because of an
Allomfy.tl..w
j South HAflovrr SIn-tl
Carll.1l1, Pflu'lIyl'llllim
1700l
WAYNE F, 511AI>I'.
Allumt)' 1lll.l1w
.'\ Suulh HIU\I)~...r Slrrd
('lllli~k. l'tnn~)I"'anill
I7Ull
TIMOTHY F. KILLIAN,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
NO. <J4- ..-.'u3
CIVIL 1'ERM
ALICE L. KILLIAN,
Defendant
PROTECTION FROM ABUSE
TEMPORARY PROTECTIVE ORDER
AND NOW, this . '" rt., day of :,,' I't( ",l,.>:L.., 1994, upon
consideration of the within Petition and upon finding that
Petitioner is in immediate and present danger of abuse from
Respondent, the following Temporary Protective Order is entered.
Respondent is hereby enjoined from physically abusing
Petitioner or placing him in fear of imminent serious bodily
injury and is excluded from the residence of Petitioner at 3
North Enola Drive, Enola, Pennsylvania.
This Order shall remain in effect until a final Order is
entered in this case. A hearing shall be held in this matter on
-/)1. I
, ),',' d..l_1
.r
J
I.p I.
\~ ~ - ".
/
) " ((.. L
, the./,-!-1 day of
, 1994, at
.-)' )
_ I ..:)(1
,-
, ,Cumberlund
o'clock J~.M. in Courtroom No.
County Courthouse, Carlisle, Pennsylvania.
The East pennsboro Township Police Department will be
provided with a copy of this Order by counsel for Petitioner and
may enforce this Order by arrest for indirect criminal contempt
without warrant upon probable cause that this Order has been
violated, whether or not the violation is committed in the
presence of a police officer. In the event that an arrest is
made under this section, Respondent shall not be taken to jail,
~
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1 December 14, 1994
2 Carlisle, Pennsylvania
3
4 (Whereupon, the fOllowing proceedings
!5 were held.)
6 THE COURT: This is the time and place for a
7 hearing in the case of Killian versus Killian. Are counsel
8 ready to proceed?
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14 father of the two children. We are here on a Petition for
15 special Relief; and we have asked the Court to order the
16 parties return back to the position they were prior to
17 September 13th, 1994. Between -- by -- there's a protection
18 from abuse that was filed in Perry county in -- on
19 September -- I think -- 15th or 16th, 1994; and according to
20 the Perry county rules, they have one form, and on that one
21 form it indicated that custody was given to the Petitioner.
22 And by that order -- the prior order from
23 Franklin County which had been in effect since 1990, that
24 the parties had been under -- was changed, and it's our
25 position that under the rules, under the Protection from
MR. GOULD: Yes, Your Honor.
MS. CAREY: Yes, Your Honor.
THE COURT: Please go ahead.
MR. GOULD: Your Honor, my name is Thomas D.
Gould. I'm here on behalf of Timothy F. Killian who is the
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Abu.. Act, that the judge's decision was improper on that.
That matter was discussed but not decided up
in Perry county. The judge in Perry county, Judge Rehkamp,
issued a decision, further discussion on the Protection from
Abuse on October the lOth, 1994, in which he once again
placed that there would be temporary custody granted to the
mother pending further Order of that Court or some other
Court with adjudication.
I have provided copies both to the counsel
and Court from the judge on September loth, which he
indicated he did not have jurisdiction on the custody matter
and was not hearing that matter at that time, and he would
leave it open and not interfere with Cumberland county.
Yet, because his order stated that she would have custody of
the child, my client did not see his children, was denied
access to his children from September the 16th until he was
given one day, I believe, on October the 26th.
THE COURT: Do you now have an agreement
between counsel as to a temporary custody arrangement?
MR. GOULD:
THE COURT:
No, Your Honor.
I see. I had thought from
Ms. carey's --
MR. GOULD: They have offered -- Your Honor,
they have offered to give us every other weekend and a
Wednesday.
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1 THE COURT: I see. And you have not accepted
2 that?
3 MR. GOULD: We have not accepted that for
4 four and a half years, and under the testimony of the mother
5 herself up in Perry county, she said it worked fine for four
6 and an half years, that things were going well. What's
7 happened is that the Protection from Abuse was filed, and by
8 the procedures up in Perry county, that sUbsided because
9 it'B the most recent Order. It superseded the Franklin
10 county Order.
11 THE COURT: Well, we better get on with the
12 hearing because I see police officers in the back.
13 Ms. Carey, anything you would like to say before we start?
14 MS. CAREY: Yes, Your Honor. Our position is
15 that after six hours of hearing, Judge Rehkamp did -- this
16 was a protection from abuse hearing Judge Rehkamp did
17 enter an Order on october loth, and as part of that Order
18 the judge says that, "the Plaintiff is granted, on a
19 temporary basis, primary custody of the parties' minor
20 children pending further Order of this Court or any other
21 court that assumes jurisdiction of the custody matter."
22 It is our position that the judge gave
23 thoughtful consideration after 300 pages of testimony and
24 through six hours of hearing, and that this temporary order
25 was entered after thoughtful consideration.
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1 Further, Your Honor, the special relief
2 petition that Attorney Gould filed was not filed in
3 conformity with law, it was filed prior to the filing of the
4 custody complaint --
5 THE COURT I But everybody is in agreement
6 that Cumberland county will be determining the custody of
7 the children, so why don't we have a short hearing. I
8 understand you have a conciliation conference scheduled for
9 3100 this afternoon.
10 MS. CAREVl Yes, Your Honor.
11 THE COURT I It is now 1140.
12 MS. CAREVl Ves, Your Honor. At 3100 we have
13 that. The only other thing I would add before we start the
14 custody is that there was no longer an urgent need for a
15 special relief hearing because there has been contact with
16 the children. The father has had contact with the children
17 on a regular basis since October, the last week of October.
18 He has had every other weekend from Friday through Sunday;
19 and in negotiations this week, we also increased that to
20 Wednesday evening and overnight into Thursday morning. So
21 he has not been denied contact.
22 THE COURT I Mr. Gould, is that correct?
23 MR. GOULDl Well, it wasn't exactly -- it was
24 offered that we could have Wednesday night if we agreed to
25 continue this matter.
6
^
,....
1 THE COURT I I see.
2 MR. GOULDI It wasn't a, You can have him.
3 In fact, we didn't have him last week.
4 MS. CAREY: But there has been
5 THE COURT: Let's proceed with the evidentary
6 phase of the hearing. I don't want to keep the police
7 officers tied up. I assume you're calling them as
8 witnesses, Ms. Carey?
9 MS. CAREY: Yes, your Honor.
10 MR. GOULD: Your Honor, through discussions
11 with the mother's attorney, she's advised us that, in fact,
12 she is not going to be contesting the fact that up until
13 September the 16th, the parties were operating under the
14 alternating week schedule, and in fact, it was working well,
15 which is what
16 MS. CAREY: I'm sorry. I don't stipulate it
17 was working well. I stipulated that they were operating
18 under the Franklin County Order prior to September 12th.
19 THE COURT: Mr. Gould, I guess you proceed
20 first.
21 MR. GOULD: That's what I'm wondering, what
22 evidence you want, Your Honor, regarding this matter.
23 Whether -- my understanding is that you're not going to
24 issue an order -- you're not going to have a full-blown
25 custody hearing.
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THE COURTI Right.
MR. GOULD I The question is whether it should
be reverted back to the terms and conditions that were prior
to the protection from abuse.
THE COURT: Well, this is your petition for a
certain relief.
o
MR. GOULD: Yes, asking for --
THE COURT: Thi~ would be some kind of
temporary Order until something more is in effect.
MR. GOULD: I call Mr. Killian, please.
Whereupon,
TIMOTHY F. KILLIAN
having been duly sworn, testified as followSl
DIRECT EXAMINATION
BY MR. GOULD:
Q Mr. Killian, are you familiar with the
Franklin County -- first, your full name, please.
A Timothy Frank Killian.
Q Where do you live?
A Three North Enola Drive, Enola, Cumberland
County.
Q And how long have you lived there, sir?
A It's going to be four years in March.
Q Okay. Where did you live prior to that?
A Shippensburg.
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Q Was there a period of time you lived in
Franklin County?
A Yes, it was the Franklin County side of
Shippensburg.
Q Are you familiar with the Franklin County
custody order that was entered in 1990?
A Yes, sir.
Q And what were the terms of custody under that
agreement?
A We'd alternate every other week on a Friday.
Q And at the time that was entered, were you
currently operating under a similar provision?
A Yes, sir. We were operating under the
provision of every two weeks, instead of every une. I
Q And from the time of that order until
september the 13th, did you operate under that order?
A Yes, sir.
Q Do you work anywhere, sir?
A No, I'm on workmen's compo and -- I'm a
student at HACC.
Q Why are you on worker's compensation?
A I got hit by a bread truck in shippensburg.
Q You have not worked since that; is that
correct?
A Yes. I worked at the day care at HACC -- at
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1 Harrisburg Area community College, and I have worked at
2 Presbyterian Homes here in Carlisle a few years back. I was
3 a day care teacher for four years, and I'm going back again
4 in January to HACC.
5 Q Could you please describe your relationship
6 with your children?
7 A It's wonderful. We do everything together.
8 I took them to girl scouts for the past two years. I was an
9 assistant girl scout leader. I took the girls to girl
10 scouts every Wednesday. We are going camping all of the
11 time. I'm involved in P.T.A. All of the teachers know me
12 very well. I was just there yesterday doing school store
13 for ~.T.A. For Thanksgiving, I took some coolers in for my
14 daughter's Thanksgiving party. Next week I am doing stuff
15 for their Christmas party. I have been doing parties at
16 school for them for years, since they were in kindergarten,
17 the carnivals.
18 Q What school are they enrolled in?
19 A East Pennsboro Elementary.
20 Q And how did they come about being enrolled in
21 East pennsboro Elementary?
22 A I enrolled them because Erin was going into
23 kindergarten and she agreed
24 Q Who is, she?
25 A Alice.
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1 Q Alice is their mother?
2 A Yes. because she always has car problems.
3 She has had different problems. And at the time she lived
4 in Burnt Cabins -- no, Orrstown. She moved from Orrstown to
5 Burnt Cabins. She went to kindergarten with me, and she
6 lived down there.
7 Q Was she driving to see the children when you
8 were living in Enola?
9 A Not the every other week. She would get them
10 on maybe a Friday, and then Friday night, and then I'd get
11 them on a Monday for school and then sometimes then she
12 might come that Monday for one night because they had to
13 come back for school. There were times she wouldn't show up
14 for two weeks.
15 Q But it would be difficult for her to
16 transport them back and forth because she was living in
17 another county.
18 A Oh, yes, because she had different problems.
19 I have a list of all of the cars she has gone through in the
20 last couple years.
21 Q When did she move into this area?
22 A March '93, just about a year and eight months
23 ago.
24 Q And once she moved into the area -- where did
25 she move when she moved into the area?
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1 A Marysville, Perry County, and supposedly she
2 was supposed to move to Enola
3 Q Now, since she moved into the Marysville
4 area, how has the schedule been until September the 17th
5 13th?
6 A When she went to school, she would take them
7 to my house and drop them off, if she had them the night
8 before on her week, and I'd take them to school and pick up
9 the kindergartener at school, and take her and the youngest
10 to day care with me because I was a HACC day-care teacher.
11 She would show up sometimes on Monday at 5:00 at my house.
12 Sometimes Tuesday, but then on a Wednesday she would leave
13 and stay at girl scouts, and I might not see her for another
14 week and a half. She would say, Keep them. I am not going
15 to take them for the following night.
16 Q And it --
17 A So then I would keep them for my whole week,
18 plus the remainder of her week; and she would show up on a
19 Friday, and we would go through the same thing again.
20 Q What's your neighborhood like where you are
21 living?
22 A I have kids -- all of the kids in the
23 neighborhood go to school with the children. I live in half
24 a double, and in the other half is a family with a first
25 grader, and two houses down is a boy that goes to school
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1 with my oldest daughter, and across the street there's a boy
2 that goes to school with them. The whole neighborhood
3 you know, all of my kids go to school with them, first,
4 second, third grade, now, and we have a large yard with a
5 swing set the kids play in.
6 Q When did you -- on september 13th, there was
7 an incident at the children's school?
8 A Yes.
9 Q okay. And since that incident at the school,
10 how long after that did you then see the children?
11 A Oh, it wasn't until a Wednesday for three
12 hours. It was insisted that I have my mother go to her
13 house and get the children just to take them to girl scouts
14 for a three-hour period. That was October 27th, I believe.
15 It was the Wednesday right before Halloween, then we had to
16 bring them right back at 9:00 on Wednesday night because she
17 said they were scared of me. And what she told Attorney
18 Ross, that the children were scared of me, that I was going
19 to take the children and move to Florida.
20 Q What was your understanding of why you didn't
21 get to see them from september the 13th until October the
22 26th, I believe it was?
23 A The children didn't want to see me, and that
24 I was going to take the children and move to Florida.
25 Q Did you ever have any intention to take the
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1 childr.n to Florida?
2 A No, sir. I was born and raised in
3 Pennsylvania, Williamsport, Pennsylvania. When I got out of
4 the navy that's -- yes, we moved up here because I'm from
5 here.
6 Q Have you ever told the mother of the children
7 that you were planning on leaving the area?
8 A No. She knows better than that.
9 Q What did you do when you got to see the
10 children on that Wednesday before Halloween?
11 A I talked to the counselor prior to that, the
12 children's counselor that they have seen for four years, and
13 he said, Bring them in and I will see if they are
14 traumatized. It's Reverand Bill sowers, and he also put
15 them on camera.
16 MS. CAREY: objection.
17 THE COURT: What happened on the 13th, that
18 caused all of these problems?
19 THE WITNESS: What happened on the 13th? I
20 get numerous phone calls if she is going to get the
21 children, and she put stuff on my answering machine numerous
22 times about she can't get the kids, get them from school and
23 get them over night, and she might come the following day.
24 She already did that the second day of school, because I
25 took them to school the first day and the second day of
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1 school -- I believe, it was the first, I went and picked
2 them up, and it was supposed to be her week, and same thing,
3 instead of the house, she asked me to get them at school. I
4 said, fine. I picked them up that Tuesday, the second day
5 of school, Wednesday the 2nd, because she called me on the
6 phonQ that she had problems again.
7 I went and picked them up. They stayed the
8 night. I saw her that Thursday, and I told her that Friday
9 there was no school; and she said, Well, I'll take them and
10 drop them off in the morning, and you can take them for the
11 whole next week, which I did. I didn't see her again until
12 the following Friday. She came to my house and got the
13 children.
14 Q Let me slow you down. The second full week
15 of school you had the children all week long.
16 A I had them all week, plus two days of the
17 first week of school, also.
18 Q So what happened the third week of school?
19 A The third week of school, after she picked
20 them up -- Friday afternoon would have been the 9th -- she
21 took them and brought them to my house the Monday of tha
22 12th and dropped them off for me to take them to school.
23 And the kids came in, and they were telling me that --
24 MS. CAREY: Objection. That calls for
25 hearsay.
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1 THE COURTl Well, he's explaining why he did
2 Bomething. Just tell me what happened. Was there a gun
3 Bhot? Was somebody stabbed?
4 THE WITNESS: No. What happened was, it was
5 at the time -- same thing again on Tuesday, she called me
6 again and told me she couldn't get the children from school
7 and told me on the answering machine. And I went up there
8 and started saying -- because she has problems with welfare.
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18 "Why are you here? You told me to come." She changed her
19 mind, she was going to take the children; tell the Welfare
20 Department that she takes care of the children. She had
21 another letter that she got from Perry County. And she
22 started hollering and she swung her foot at me with her
23 left foot, and I pushed her away from me, and she ran into
24 the office, from there I went in the office, and I talked to
25 them, and she said that I assualted her or something like
MS. CAREY: Objection with that
characterization.
THE COURT: The objection is overruled.
THE WITNESS: I went to school and picked up
the children.
THE COURT: Where? In Perry County?
THE WITNESS: No, in Enola, where I live.
THE COURT: What happened?
THE WITNESS: She started hOllering at me,
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1 that.
2 So I went home and I called the police. I
3 called my other attorney, and I said, I would put abuse on
4 her, a protection from abuse -- that/s before I even knew
5 she was trying to get custody away from me. And then I went
6 to school to pick up the children that Friday because that
7 would have been my whole weeki because on the Order we all
8 had -- she runs in with this court order saying she has
9 temporary custody and told -- I was told I had to leave
10 school property, and I wasn't even allowed on school
11 property.
12 THE COURT: And this Order that you're
13 talking about is an Order from Perry County?
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20 CROSS-EXAMINATION
21 BY MS. CAREY:
22 Q Mr. Killian, you have, since 1990, been
23 working out custody by discussing with Alice when you were
24 going to have the children; is that correct?
25 A No, we were going by the Court Order.
THE WITNESS: Yes, sir.
THE COURT: As a result of a Cumberland
county incident?
THE WITNESS: I didn't say that's what --
nothing made sense to me.
THE COURT: Okay. Cross examine.
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Q Huh?
A We were going by the Court Order.
Q But sometimes if she had class, you would
keep the children an extra day.
A Oh, yes. Yes, there were times like that,
besides other problems. She had different reasons.
extra --
A
never did.
Q And then sometimes she would keep them an
Her? No, she never did. r offered and she
Q And there was an incident that happened at
the school on or about September 13th. Right?
A Yes.
Q And there was a protection from abuse
petition filed in Perry County. Correct?
A Yes. I didn't find out until the Friday when
I went to pick up the children.
And then there was a hearing on that. Right?
Well, no. The first one was we went up to
the first hearing, me and my attorney, and we
Q
A
the Court on
waited --
Q
A
Q
A
So there was --
Can I finish?
Sure.
We waited, and she called and said she had a
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1 class that morning and she couldn't come to the hearing so
2 we -- so it got rescheduled again to another day.
3 Q So you did have, like, two days of hearing in
4 Perry County; is that correct?
5 A Well, the first -- the second hearing I
6 didn't even get to testify, I just listened.
7 Q But there were two days.
8 A That's because we ran out of time. The judge
9 said we ran out of time.
10 Q But there were two days when the judge had
11 testimony from various people in this protection from abuse
12 case; is that right?
13 A That's when the judge also said that this is
14 not a custody matter, and he said, I don't believe I have
15 jurisdiction.
16 Q Well, did Judge Rehkamp enter a Protection
17 from Abuse Order?
18 MR. GOULD: Your Honor, we'll stipulate that
19 there was an Order. It is on the record.
20 THE COURT: Where is it on the record?
21 MR. GOULD: I supplied it in my filing.
22 THE COURT: Would you stipulate there is such
23 an Order?
24 MS. CAREY: Your Honor, it is Exhibit A, on
25 my petition that we filed.
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1 THE COURT I It's so stipulated that there is
2 a proteotion from Abuse Order.
3 MS. CAREY: Yes. And that Order contains an
4 Order for custody, partial custody or primary custody of the
5 minor children, with the mother, pending further Order of
6 Court. I have no other questions of this witness,
7 Your Honor.
8 THE COURT: okay. Anything further,
9 Mr. Gould, of this witness?
10 MR. GOULD: No, Your Honor.
11 THE COURT: You may step down. Thank you.
12 MR. GOULD: Your Honor, in the interest of
13 the judicial economy, I have copies of transcripts of the
14 hearing of three witnesses that appeared at the hearing up
15 in Perry County, and one is of -- excuse me, one is Peggy
16 wilson, who is a girl scout leader, who testified he is
17 active with the girl scouts, and has them at the girl scouts
18 each and every Wednesday as he alleges in his testimony.
19 THE COURT: Ms. Carey, are you willing to
20 stipulate to this testimony?
21 MS. CAREY: No, Your Honor, because these
22 witnesses are not here for me to cross~examine.
23 THE COURT: I don't think I can accept it as
24 part of this record.
25 MR. GOULD: Well, when I found out I only had
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15 minut.., it didn't make any sense to have these
witn....s. Also, I have the witness Vicki Mcculloch, who is
the day-car. work.r, who also substaniated his testimony.
He was a day-care personnel, the children were there; that
he had the children there each and every day and did not
know the mother, at all, of the children.
THE COURT I The reason you only have 15
minutes is this is a special relief petition. It is not the
custody itself, as you know.
MR. GOULDl I understand. Okay.
THE COURT: Anything further, Mr. Gould?
MR. GOULD: I have nothing further,
Your Honor.
THE COURT:
MS. CAREY:
Ms. Carey?
Your Honor, I would call Alice
Killian.
Whereupon,
ALICE L. KILLIAN,
having been duly sworn, testified as followSl
DIRECT EXAMINATION
BY MS. CaBE1:
Q Would you state your name for the record,
please?
A Alice Louise Killian.
Q And where do you currently reside?
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A :200-A South state Road in Marysville.
Q And you've lived there for approximately how
long?
A A year and a half.
Q And during that time, and in fact since 1990,
has there been a custody Order in place regarding your
children?
A Yes. We've been going by the Franklin County
Order, every other week, and I've always abided by that.
Q All right. On or about September 13th, was
there a confrontation at the school?
MR. GOULD: I'm going to object to the
terminology of confrontation.
THE COURT: I thought -- wasn't she there?
MR. GOULD: She was there, but the counsel
has indicated it was a confrontation.
THE COURT: I see. Do you want to rephrase
the question?
MS. CAREY: Yes.
BY MS. CAREY:
Q Did you have -- did you and Mr. Killian
have -- was there an event on the 13th that caused the
police to be involved and caused a protection from abuse
entered?
A Yes, there was.
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1 Q Would you please describe for the court
2 briefly -- to the Court what happened that day?
3 A I arrived at school, Wednesday, at a little
4 bit before 3100 p.m., when it was time to pick the children
5 up for school, the children were expecting me. When I
6 arrived I saw Mr. Killian's car in the parking lot, and I
7 was a little bit surprised.
8 Q Was this your week to have custody?
9 A Yes. And we had discussed earlier that
10 week I wouldn't really call it a discussion, he had just
11 told me that I couldn't drop the kids off at his house in
12 the morning anymore. He was angry. I told him there is no
13 use him picking the children up after school because I was
14 able to do it myself; and that's why he said I couldn't drop
15 them off in the morning, so I went and got a baby-sitter,
16 the children were in school. I arrived to pick them up and
17 I didn't expect Mr. Killian to be there.
18 Q Then what happened?
19 A Well, I walked up to the school, and we sort
20 of walked toward each other, and I asked him what he was
21 doing there.
22 Q Just -- let me just ask you, now, move
23 directly to the time when there was what you called abuse in
24 your petition.
25 A After some words, and I noticed Mr. Killian
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getting more and more agitated, I just focused on the
children.
Q So the children were with you.
A Yes.
Q Both children?
A Yes.
Q What are their names?
A Erin Fern Killian and Shannon Louise Killian.
Q How old are the children?
A Shannon is six and Erin is seven.
Q And the children, did you have them by the
hands?
A I had Shannon by my right hand and Erin by
the left hand.
Q And then what happened?
A And we went to walk across the parking lot to
go to the car so we could go home, and Mr. Killian was to
the left of me at the time as we were walking toward the
car. I stepped off of the sidewalk, Mr. Killian was still
on the sidewalk. I was walking across the parking lot to go
to my car, which was just a few parking spots away. Mr.
Killian crossed in front of me after saying, The next time I
see you bitch, it will be in Court. And I just -- I was
concentrating on the children. I said, Fine. And we went
ahead to walk toward the car. I was paying all of my
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attention to the children. I was talking to Erin, so I was
looking this way, and Mr. Killian had walked in front of me
and was walking towards his car, which was parked over. here
in the corner of the parking lot.
Q And then what happened?
A out of the blue, all of a sudden, there
wasn't anything I could do about it, it happened so fast, I
got hit in the face like that. I stammered --
Q What did you get hit in the face with?
A His fist.
Q And were the children -- how were the
children as a result of this?
A They were very surprised. They were in
shock. They couldn't believe it any more than I could
believe it. It was so unexpected. Shannon -- I felt
Shannon jolt. I think he tried to grab Shannon. She
clutched my hand very tight. I said, Come on, we have to go
back into the school. And that's when I called the police.
Q Now, as a result of that, was there a
protection from abuse hearing?
A Yes.
Q And the hearing was held in Perry county?
A Yes.
Q You filed in Perry county because that's
where you live?
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A Yes.
Q The -- as a result of that hearing, JUdge
Rehkamp entered a Protection from Abuse Order?
A Yes. The call -- could I tell you, the call
that Mr. Killian was talking about, that he is explaining I
made that day, was made two weeks prior to that because I
had an emergency, so he did have that message on his
answering machine, but it wasn't left on there the day of
the incident.
Q What was the message left on the answering
machine?
A I called his house. I got his answering
machine. I told him I had an emergency coming up, there
wasn't anything I could do about it. I had to take care of
this emergency. I asked him to please go to the school to
pick the children up, and I didn't think I would be getting
home early enough because I had to go to Fulton County.
THE COURT: We have to move on, now.
BY MS. CAREY:
Q He told the police that the message was from
that day?
A Yeah, and it wasn't.
Q Do you -- after that protection from abuse
hearing, on or about October, did you agree that he could
have a schedule of partial custody?
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1 AVes.
2 Q And how was that schedule?
3 A I told him at first we would start out with
4 every other weekend, and then recently I -- because he had
5 been wanting to take the children to girl scouts. I agreed
6 that during the time girl scouts was in session that he
7 could pick the children up from school on Wednesday, keep
8 them overnight, and take them back to school on Thursday
9 morning.
10 Q Has he been seeing the children every other
11 weekend since the end of october?
12 A Yes, he did -- yes, he has been.
13 Q And do you -- have you -- is there anything
14 that would make you, now, want to go back to the every other
15 week custody that you had had prior to the protection order?
16 A The children's complaints about Mr. Killian's
17 drinking.
18 Q Do you have any direct knowledge, yourself,
19 of his drinking?
20 A Yes, I do.
21 Q What would that -- when -- approximately when
22 did his drinking become a concern to you?
23 A During the course of the summer I noticed
24 more and more problems from his attitude. He would get
25 obsessed with getting back together with me, and he would
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1 show up to my house with bottles of alcohol and beer, trying
2 to get me to drink with him, and I turned him down cold.
3 Q Now, was this causing any behavior changes in
4 the children?
5 A They were fighting with each other a lot and
6 having problems staying focused.
7 Q Now, since the children have been with you
8 after the protection from abuse hearing, have you -- how has
9 that been going?
10 A They are using their manners, and they are
11 playing well together, and they're listening to me better.
12 Erin is actually anxious to go home and clean her room
13 because she knows Santa Claus is watching.
14 THE COURT: We have to move on. Mr. Gould,
15 do you have any cross-examination?
16 MR. GOULD: lies, lIour Honor.
17 CROSS-EXAMINATION
18 BlI MR. GOULD:
19 Q Now, you indicated that Mr. Killian
20 apparently had a tape recording of this emergency phone call
21 you had made?
22 A lies.
23 Q And he had been saving it, as far as you
24 know, for two weeks to use it at this time?
25 A We pretty much proved that in the hearing in
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1 Perry County.
2 Q That's your understanding that you recorded
3 on hi. machine two weeks before this and Mr. Killian waited,
4 then, to use it at this time?
5 A Yes.
6 Q So it's your belief that he planned this
7 whole event?
8 A I don't know what his plans were for that
9 dny. It's hard to say.
10 Q Okay. Now, you indicated that the children
11 were expecting you to pick them up?
12 A Yes, they were.
13 Q Isn't it true that you -- the morning of the
14 incident you knew, in fact, you dropped them off at Mr.
15 Killian's house for Mr. Killian to take them to school?
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A We had been --
Q Is that true?
A Yes.
Q So Mr. Killian is the one who took them to
school.
A Yes.
Q And Mr. Killian had picked them up the day
before?
A I had to be at school, myself.
Q Mr. Killian dropped them off and picked them
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up on Tue.day?
A He did not pick them up on Monday.
Q lIou picked them up on Monday?
A He did not take them to school on Tuesday.
Q The Tuesday of the incident, he didn't take
them to school?
A No, because Monday afternoon he came to me
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9 then I couldn't drop them off. He thought he was leaving me
10 i~ a pickle, and I managed to find a baby-sitter real fast.
11 Q Who took them to school on Tuesday?
12 A I did. I believe I did because I -- I took
13 them to school but I was there at 7130, and I explained to
14 the principal, I have to do something. I have to be at
15 school at 7:30 a.m., and he gave me a list of numbers. I
16 got a baby-sitter. I took them to the baby-sitter's house,
17 and the baby-sitter put them on tho bus and sent them to the
18 school.
19 Q So tho babY-1I1Hu ""lit thum t.n .chool?
20 A Yes. And ( mllllt. 1\ """ho" on time.
21 Q Now, when YIIIl 1.1..t,,'1 ," ,'; 01111 -- on direct
22 examination that you hiked to MI'. KIIII'1II "hnllt tho partial
23 custody and lncreasing hill tlmo. Whim .1111 YOll do that?
24 A I believe thnt WIIH laet woek. I got " cll,ll
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1 A No, he's not.
2 Q What was your rationale for not allowing
3 Mr. Killian to see the children in September 13th until
4 October the 25th and 26th?
5 A Mr. Killian had taken off with the children
6 before and hid them from me. And he was being so
7 irrational, and just the state of mind he was in, I was
8 worried that he might try to take off with them again.
9 Q Do you remember Judge Rehkamp, appearing in
10 front of Judge Rehkamp on the 12th?
11 A Yes, I do.
12 Q Do you remember him telling you to work out a
13 schedule?
14 A Yes. I did. And I waited for his lawyer to
15 contact me, and his lawyer never did. When I tried to call
16 his lawyer, they wouldn't let me talk to him.
17 Q What was that?
18 A I tried to call his lawyer, and his secretary
19 didn't get him.
20 Q Did your lawyer, Allen Rose, talk to you
21 about the question?
22 A Yes, he did.
23 Q And what did you tell Mr. Rose?
24 A I told him that we -- that we would try to
25 set up something. That I would be very willing to set up
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something for every other weekend.
Q You don't remember telling Mr. Rose that he's
not going to see the children, that he is going to take them
to Florida, and the children were afraid of him?
A There was a big concern, but I never said he
was going to take the children to Florida. I was just
afraid he would take off with them.
THE COURT I I'm sorry, Mr. Gould, we have to
stop. Do you have any more witnesses, Ms. Carey?
MS. CAREY I Yes. I just call Officer Landis.
Whereupon,
JOSEPH LANDIS,
having been duly sworn, testified as follows I
THE COURT: This will have to be extremely
brief.
MS. CAREY: Yes, Your Honor.
DIRECT EXAMINATION
BY MS. CAREY:
Q Would you state your name for the record,
please?
A My name is Joseph Landis.
Q And where do you work?
A I'm employed by the township of East
pennsboro as a member of the East Pennsboro Township Police
Department.
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Q And how long have you been with the
department?
A Seventeen and a half years, approximately.
Q And in tho course of your position, have you
had occasion, recently, to be called to -- to be involved in
a case with Alice Killian and Timothy Killian?
A Yes, ma'am, I have.
TilE COURT: Ms. Carey, ask your three most
important questions. pick the most important.
MS. CAREY: Okay.
BY MS. CAREYl
Q Detective, on September 13th, did you have
occasion to see Mr. Killian?
A Yes, ma'am, I did.
Q In his presence -- how did he appear to you
you when you saw him?
A He appeared to be intoxicated or at least
having consumed intoxicating beverages.
Q And what behaviors did you see that makes you
believe that that was the case?
A His speech was somewhat slurred, his gait was
a little awkward, he seemed to rammble on with his
conversation and, in fact, seemed a little incoherent, so
far as the conversation that was taking place with him.
Q What did you see?
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A Incoherent
THE COURT I Ms. carey --
MS. CAREY: Your Honor, it's very important
that I make a pattern here. Your Honor, he was called out a
second time, with all due repsect to the Court.
THE COURT: One more question, because you
are going to be late for your conciliator conference. This
is just a special relief.
BY MS. CAREY I
Q Did you have an occasion to see Mr. Killian?
A Sometime within that week's period, yes,
ma'am.
Q And how did you find him at that time?
A That was at the elementary school.. We were
called up in reference to a problem.
Q And how did he appear to you?
A Once again, the same type of reactions.
Q And how did he appear to you? Did you -- how
did you feel -- excuse me
THE COURT: I think I know the answer.
Mr. Gould.
CROSS-EXAMINATION
BY MR. GOULD:
Q Just a couple follow-up. Are are you aware
that Mr. Killian, as a result of being hit by a car -- that
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1 after being hit by a car, he doesn't walk normally?
2 A No, I wasn't aware of that.
3 Q So when you say his gait was off, it maybe
4 was as a result of his physical problem?
5 A Maybe.
6 Q When you saw him it was because of his
7 children. He wanted to see his children. They were being
8 taken from him.
9 A The first time was the incident that Mrs.
10 Killian testified to that occurred at the school. The
11 second time was in reference to a, in essence, a custody
12 dispute between Mr. and Mrs. Killian at the school, yes,
13 sir.
14 Q And at both instances he appeared very upset
15 about what was happening?
16 A Yeah. He was upset. Along with some
17 other--
18 MR. GOULD: No further questions.
19 THE COURT: step down. Thank you, sir. May
20 this witness be excused?
21 MS. CAREY: Yes, Your Honor.
22 THE WITNESS: Thank you, sir.
23 (NO AUDIBLE RESPONSE)
24 THE COURT: You may be excused. Do you have
25 another police officer?
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6 the Plaintiff's Petition for special Relief, and following a
7 brief hearing prior to the parties' conciliation conference
8 with Samuel L. Andes, Esquire, the Court enters the
9 following temporary order, with respect to custody of the
10 parties' two children, Erin Fern Killian, born Decelnber 16,
11 1986 and shannon Louise Killian, born July 10, 19BBl
12 1. Primary physical custody shall be in the
13 mother, with partial physical custody in the father, every
14 other weekend from Friday at 3:00 p.m. until Sunday at 6:30
15 p.m. and every Wednesday from 4:00 p.m. until Thursday
16 morning when the children go to school. At the time that
17 the father receives custody of the children on Friday at
18 3:00 p.m., ne shall pick the children up at their school.
19 2. This Order shall remain in effect
20 pending any Order proposed by the conciliator as a result of
21 the conference scheduled for later this afternoon, and which
22 order is signed by the Court.
23 3. If the parties are unable to reach an
24 agreement at the conciliation conference regarding custcdy,
25 the Court will schedule a hearing upon the recommendation of
MS. CAREY: No, Your Honor.
THE COURT I Is that the end of the testimony?
MS. CAREY: No -- yes, Your Honor.
THE COURT: We will enter this Orderl And,
now, this 14th day of December, 1994, upon consideration of
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1 the conciliator and will enter such order as seems
2 appropriate and is recommended by the conciliator as a
3 result ot the conference.
4 So, when you have your conference today, it
5 you can reach an agreement, fine. If the conciliator
6 recommends an order for me to sign, I will be glad to look
7 at that, also; and if necessary, I will schedule a
8 full-blown custody hearing afterward.
9 MR. GOULD: Your Honor, one note that you
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16 THE COURT: Ms. Carey?
17 MS. CAREY: Your Honor, my client would
18 prefer at her residence. He doesn't have to come into the
19 residence, he can say outside. I think the reason is
20 because in the past there had been a lot -- there have been
21 a lot of problems at the school, and there has been a lot of
22 accusations as to keeping information from the mother
23 regarding school. So this is where she wants the exchange
24 to take place, at her residence.
25 MR. GOULD: Your Honor, we don't think it's
said the exchange would occur at 4:00, it's going to be
difficult -- 4100 in the afternoon. We suggest that the
exchange occur at the school. That Mr. Killian pick the
children up at school, otherwise, he is going to be goi~ to
the mother's houE~. He is not supposed to be there as a
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CERTIFICATE
I hereby certify that the proceedings are
contained fully and accurately in the notes taken by me on
the above oause and that this is a correct transcript of the
same.
,
//
+~~_ ~-i'v-.,
<
() \k \lv-, "-
or aine K. Troutman
Official Court Reporter
* lit .
The foregoing record of the proceedings on the
hearing of the within matter is hereby approved and directed
to be filed.
A .1\.-:-1 \"> LC;~~
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