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HomeMy WebLinkAbout02-3716DAVID KILLIAN, Respondent TAMMY SHOEMAKER, Petitioner : 1N THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : CUSTODY COMPLAINT FOR CUSTODY The plaintiff is David Killian, residing at 100 Fairview Street, Carlisle, Pennsylvania. The defendant is Tammy Shoemaker, residing at 613 B, Apartment 26, Geneva Drive, Mechanicsburg, Pennsylvania. Plaintiff seeks custody of the following child: Name Present Residence DOB Age Mary Lynn Shoemaker 100 Fairview Street 2/23/96 6 The child was bom out of wedlock The child is presently in the custody of David Killian, who resides at 100 Fairview Street, Carlisle, Cumberland County, Pennsylvania. During the past five years, the child has resided with the following persons and at the following addresses: List All Persons Tammy Shoemaker Tammy Shoemaker Tammy Shoemaker List All Addresses 1346 Grandview Court Carlisle, PA Dates 1996-1999 Cumberland Point Mechanicsburg, PA 1999-2001 613 B, Apartment 26 Geneva Drive Mechanicsburg, PA 2001 -Present The mother of the child is Tanuny Shoemaker, currently residing at 613 B, Apartment 26, Geneva Drive, Mechanicsburg, Pennsylvania. She is not married. The father of the child is David Killian, currently residing at 100 Falrview Street, Carlisle, Pennsylvania. He is not married. 4. The relationship of plaintiffto the child is that of father. The plaintiff currently resides with the following persons. Nalne Wanda Levan Rebecca Baker and Danielle Baker Relationship Girlfriend Girlfriend's daughters The relationship of defendant to the child is that of mother. The defendant currently resides with the following persons. Name Relationship Clark Neil, Jr. Son Amber Lynn Neil Daughter Plaintiffhas not participated as a party or witness, or in another capacity, in other litigation concerning the custody of the child in this or another court. Plaintiff has no information of a custody proceeding concerning the children pending in a court of this Commonwealth. Plaintiff does not know ora person not a party to the proceedings who has physical custody of the child and claims to have custody or visitation rights with respect to the child. The best interest and permanent welfare of the child will be served by granting the relief request because: (a) The child has had excessive absences; (b) The child has had excessive lice infestations; and (c) The child is staying in a room with several siblings, including a ten (10) year old male, who is believed to have had inappropriate contact with the six (6) year old child. Plaintiffis best able to provide the care and nurture which the children need for healthy development. Each parent whose parental rights to the child have not been terminated and the person who has physical custody of the child have been named below, who are known to have or claim a right to custody or visitation of the child will be given notice of the pendency of this action and the right to intervene: Name Address Basis of Claim WHEREFORE, Plaintiffrequests this Court grant Plaintiffprimary physical custody in the Father with visitation in the Mother. Respectfully submitted, Date: August 1, 2002 Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Plaintiff I verify that the statements made in this comPlaint are true and c0~ect. I understand that false statements herein are made subject to the penalties of 18 Pa. Cons. Stat. § 4904 relating to unswom falsification to authorities. David Killian, Plaintiff DAVID KILLIAN PLAINTIFF TAMMY SHOEMAKER DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : : 02-3716 CIVIL ACTION LAW : IN CUSTODY : ORDER OF COURT AND NOW, Wednesday, August 07, 2002 , upon consideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear before Jaequeline M. Verney, Esq. , the conciliator, at 4th Floor, Cumberland County Courthouse, Carlisle on Tuesday, August 27, 2002 at 9:30 AM for a Pre-Hearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute; or if this cannot be accomplished, to define and narrow the issues to be heard by the court, and to enter into a temporary order. All children age five or older may also be present at the conference. Failure to appear at the conference may provide grounds for entry of a temporary or permanent order. The court hereby directs the parties to furnish any and ali existing Protection from Abuse orders, Special Relief orders, and Custody orders to the conciliator 48 hours prior to scheduled hearing. FOR THE COURT, By: /s/ .[acqueline M. Vernev. Esa. x%/'- Custody ConciliatOr ' ~ The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilites Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. YOU SHOULD TAKE THIS PAPER TO YOUR ATTORNEY AT ONCE. IF YOU DO NOT HAVE AN ATTORNEY OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 DAVID KILLIAN, Respondent VS. TAMMY SHOEMAKER, Petitioner AND NOW, this IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : : 02-3716 CIVIL : CIVIL ACTION - LAW : : IN CUSTODY IN RE: PETITION FOR EMERGENCY RELIEF ORDER ~ ~ day of August, 2002, a role is issued on the defendant (erroneously captioned "Petitioner"), Tammy Shoemaker, to show cause why the relief requested in the within motion of the plaintiff (erroneously captioned "Respondent"), David Killian, ought not to be granted. This role returnable ten (10) days after service. BY THE COURT, Keying. Hess, J~.~ DAVID KILLIAN, Plaintiff TAMMY SHOEMAKER, Defendant 1N THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : No.02-3716 : : CIVIL ACTION ~ LAW : CUSTODY MOTION TO MAKE RULE ABSOLUTE AND NOW, comes the Plaintiff, David Killian, by and through his privately retained counsel, Karl E. Rominger, Esquire and in support of his Motion to Make Rule Absolute avers as follows: 1. Plaintiff filed a Petition for Emergency Relief with the Court on August 2, 2002. 2. This Honorable Court gave the Defendant ten (10) days to file a Rule to Show Cause. 3. The Rule to Show Cause was answered on August 20, 2002. WHEREFORE, based upon Plaintiff's Petition and D ' efendant s Answers, Plaintiff respectfully requests that this Honorable Court either Make the Rule Absolute or in the alternative schedule a hearing on the Petition for Emergency Relief Respectfully submitted, ROMINGER & BAYLEY Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Plaintiff Date: August 22, 2002 DAVID KILLIAN, Respondent VS. TAMMY SHOEMAKER, Petitioner AND NOW, this : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-3716 CIVIL CIVIL ACTION - LAW IN CUSTODY IN P~: PETITION FOR EMERGENCY RELIEF ORDER day of August, 2002, a rule is issued on the defendant (erroneously captioned "Petitioner"), Tammy Shoemaker, to show cause why the relief requested in the within motion of the plaintiff (erroneously captioned "Respondent"), David Killian, ought not to be granted. This rule returnable ten (10) days after service. BY THE COURT, Kev:. Hess, J. DAVID KILLIAN, Plaintiff TAMMY SHOEMAKER, Defendant : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION - LAW CUSTODY PETITION FOR EMERGENCY RELIEF AND NOW, comes the Petitioner David Killian, by and through his attorney, Karl E. Rominger, Esquire, and avers the following in support of this Petition for Emergency Relief: 1. The Petitioner, David Killian, is an adult individual who currently resides at 100 Fairview Street, Carlisle, Pennsylvania 17013. 2. The Respondent, Tammy Shoemaker, is an adult individual who currently resides at 613B, Apartment 26, Geneva Drive, Mechanicsburg, Pennsylvania 17055. 3. There is one dependent child of the parties, namely Mary Lynn Shoemaker, DOB 2/23/96. 4. Petitioner seeks primary of the following child: Name Present Res____~idence .Age Mary Lynn Shoemaker 100 Fairview Street 6 Carlisle, PA The child was bom out of wedlock The child is presently in the custody of her, Father, Petitioner, David Killian, who currently resides at 100 Fairview Street, Carlisle, PA 17013. Since the date of the last custody order entered in at the above docket, the child has resided with the following persons and at the following address: N/A Name Address Dates The mother of the child is Respondent, Tammy Shoemaker, currently residing at 613B, Apartment 26, Geneva Drive, Mechanicsburg, PA 17055 The father of the child is Petitioner, David Killian, currently residing at 100 Fairview Street, Carlisle, PA 17013 5. The relationship of the Petitioner to the child is that of natural father. The Petitioner currently resides with the following person: Wanda Levan. The relationship of the Respondent to the child is that of natural mother. To Petitioner's knowledge, Mother currently resides with the following persons: Clark Nell, Jr., and Amber Lynn Nell. 6. There is not currently a Court Order. 7. Petitioner does not know ora person not a party to the proceedings who has physical custody of any of the children or claims to have physical custody or visitation rights with respect to the children. 8. The best interests and permanent welfare of the children will be served by granting the relief requested because: (a) (b) (c) (d) Petitioner is the natural father of the child; Petitioner has established a relationship with the child; Petitioner desires to continue exercising parental duties and enjoys the love and affection of the child; The child should be permitted to enjoy the love, affection, and emotional support which can be provided by her natural father. (e) The child would benefit from custody being transferred to their natural father because of the current situation, which is explained in detail in paragraphs 1 l(a) through 1 l(c) below. 9. Each parent whose parental rights to the child have not been terminated and the person who has physical custody of the child have been named as parties to this action. No other persons are known to have or claim a right to custody or visitation of the child to be given notice of the pendency of this action and the right to intervene. PETITION FOR EMERGENCY RELIEF - REQUEST FOR ORDER FOR TEMPORARY PRIMARY PHYSICAL CUSTODY 10. Paragraphs one (1) through (9) are hereby incorporated be reference as though fully set forth. 11. Petitioner believes the child will suffer needless irreparable harm and may be in danger if custody is not immediately temporarily transferred to him for the following reasons: (a) The six (6) year old child has told her father that her ten (10) year old step_brother, Clark, Jr., has had inappropriate contact with genitalia. This came to father's attention when the parent of another child told father that his child had inappropriately touched another six (6) year old. Father inquired of the six (6) year old child at interest in this case, and denied doing the same, but indicated that the other girl had touched her. Father asked her if anyone else had touched her or had she had learned about this sort of thing, and she indicated her brother, Clark, Jr., had touched her. It is important to note that the Mother has Clark, Jr., sharing a bedroom with the six (6) year old female at interest in this case. (b) While Father has the child in his temporary custody pending the beginning of the school year, Father fears that once school starts the child will be returned to the living situation where she shares a bedroom with Clark Jr., who Father believes has touched her inappropriately. (c) Children and Youth Services has suggested to Father that he should attempt to obtain custody and enroll the child in school in his school district. (See Exhibit "A") WHEREFORE, Petitioner respectfully requests this Honorable Court to enter an Emergency Order granting him primary physical custody of his children pending the scheduling of a conference or hearing on the matters alleged herein. Respectfully submitted Dated: August l, 2002 Karl E. Rominger, Esquire Attorney for Defendant 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID No. 81924 DAVID KILLIAN, Plaintiff TAMMY SHOEMAKER, Defendant 1N THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : No.02-3716 : : CIVIL ACTION - LAW : CUSTODY _CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, attorney for Plaintiff, do hereby certify that I this day served a copy of the Motion to Mate Rule Absolute upon the following by depositing same in the United States Mail, first class postage prepaid, at Carlisle, Pennsylvania, addressed as follows: Joan Carey, Esquire MidPenn Legal Services 8 Irvine Row Carlisle, PA 17013 Dated: August 22, 2002 Karl E. Rominger, Esquire Attorney for Plaintiff DAVID KILLIAN, Plaintiff Vo TAMMY SHOEMAKER, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : No. 02-3716 : : CML ACTION-LAW : CUSTODY DEFENDANT'S ANSWER TO RULE TO SHOW CAUSE ISSUED IN RE: PLAINTIFF'S PETITION FOR EMERGENCY RELIEF Defendant, Tammy Shoemaker, responds to Plaintiffs Petition for Emergency Relief as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted in part; denied in part. It is specifically denied that the child resides with her father. The child's permanent residence is as follows: Name Present Residence Age Mary Lynn Shoemaker 613B, Apa~hnent 26 6 Geneva Drive Mechanicsburg, PA The child is presently in the custody of her mother, Tammy Shoemaker, who currently resides at 613B, Apartment 26, Geneva Drive, Mechanicsburg, Pennsylvania. By way of further answer, the child spent some additional time with her father during the summer, but the mother never agreed to a change of the child's pem~anent residence or to a change of primary custody. Admitted in part; denied in part. To the best of the mother's knowledge, the father resides with his girlfi'iend, Wanda Levan (on weekends and on and off during the week, Ms Levan's fifteen year old son, Wayne, stays with plaintiff and Ms Levan.). 6. Admitted. 7. Admitted. Denied. The mother denies that the best interest and pet,,anent welfare of the children would not be served by transferring custody to the father. The father has only recently established a relationship with the child, and while the mother does not wish to deprive him of the child's love and support, she feels that the father could continue to develop and sustain his relationship with his daughter by a court ordered schedule of partial custody. By way of further answer the mother feels that the best interest and permanent welfare of the child will be served by confirming custody in the mother for reasons including, but not limited to, the following: The mother has been the primary caregiver of Mary since her birth, and the child has resided since birth with the mother and the child's half siblings Clark Neal and Amber Neal. bo The mother has taken the father's concerns seriously and taken the following steps to deteimine what, if anything, inappropriate took place between the child and anyone else: The mother spoke with her daughter about the alleged inappropriate touching, and the daughter denied that her brother Clark (age 10) did anything inappropriate to her. She further told her mother that the father's stepson, Wayne, age 15, who has lived with the father for much of the summer, touched her inappropriately. ii. The mother has taken precautions, however, and has arranged that Clark and Mary do not sleep in the same bedroom. iii. The mother has taken Mary to a doctor who examined the child and determined that there was no evidence of sexual abuse. iv. Even though the doctor saw no reason for counseling for the child, the mother is looking into whether the age of the child and the circumstances would warrant an evaluation by a therapist to determine whether play therapy or any other type of counseling is necessary for her daughter. v. The mother is working with her son Clark's counselors to determine whether there is any need for evaluation or vi. therapy regarding the allegations of inappropriate touching between him and his sister. Their had been an open case with Cumberland County Children and Youth because of head lice which Mary had contracted initially at her father's residence during the last school year. The child missed several days of school since school policy prohibits the child's staying in school until the problem is totally cleared up. This matter was resolved; the child was admitted into school, and the Children and Youth case was closed. The child did well in school in spite of a total of 10 days absent (The mother is not certain whether all of these days were related to the head lice episode; some could have been because of illness.) The child did will in school and was promoted. 9. Admitted. 10. The mother denies the need for emergency relief and for any change of temporary primary physical custody to the father for reasons including those expressed in paragraphs one (1) through nine (9) above and paragraph 11 below that are incorporated by reference as though fully set forth. 11. Denied. a. The mother does not have sufficient knowledge to ai~i-fii or deny what the persons referred to by the father said or to know the identity of the persons to whom he refers. The mother admits that her son Clark and her daughter do have beds in the same room, but she reiterates that she has made alternate sleeping arrangements for the safety and protection of both children until the professionals deteimine if the father's allegations are credible and if there is any reason to continue to not have the children together without supervision. b. Denied. The child is in the mother's custody not the father's, and the mother has taken precautions to protect the child. By way of further answer the father has averred fears but no professional has corroborated any inappropriate behavior between Clark and Mary. Furthe, more, the child is telling the mother that inappropriate behavior is coming from Wayne, the father's girlfriend's fifteen (15) year old son who stayed with the father often during the summer. c. Admitted in part; denied in part. Denied that the letter would warrant any emergency custody order. The letter in fact says that Cumberland County Children and Youth Services has closed the family's case. COUNTERCLAIM FOR CUSTODY Defendant/Mother, Tammy Shoemaker, incorporates herein by reference paragraphs one (1) through eleven (11) of the within Answer to Rule and requests that this matter be referred to the Custody Conciliator and that primary physical custody be granted to her. WHEREFORE, plaintiff requests that the father's request for emergency relief be denied. Respectfully submitted, Attorney for Defendant MIDPENN LEGAL SERVICES 8 Irvine Row Carlisle, PA 17013 VERIFICATION The above-named DEFENDANT, Tammy shoemaker, verifies that the statements made in the above Response to Rule to show Cause are true and correct. Defendant understands that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Date: ~- ]~--0 ~-' ~/~Y~/~' ~~ ~ammy sh~e~ake r · AUG 2 8 ZO02' DAVID KILLIAN, Plaintiff V. TAMMY SHOEMAKER, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW : : NO. 2002-3716 CIVIL TERM : : IN CUSTODY ORDER OF COURT AND NOW, this ~ day of ~~x~/~fl ,2002, upon consideration of the attached Custody Conciliation Report, it is ordered and directed as follows: 1. A Hearing is scheduled in Court Room No. ~ , of the Cumberland County Court House, on the /gq day of~, 2002, at q ;,5 FO o'clock, /~ . M., at which time testimony will be taken. For purposes of this Hearing, the Father shall be deemed to be the moving party and shall proceed initially with testimony. Counsel for each party shall file with the Court and opposing counsel a Memorandum setting forth each party's position on custody, a list of witnesses who will be expected to testify at the Hearing and a summary of the anticipated testimony of each witness. These Memoranda shall be filed at least ten days prior to the Hearing date. 2. Pending further Order of Court or agreement of the parties, the following shall remain in effect: 3. The Father, David Killian, and the Mother, Tammy Shoemaker shall have shared legal custody of Mary Lynn Shoemaker, born February 23, 1996. Each parent shall have an equal right, to be exercised jointly with the other parent, to make all major non-emergency decisions affecting the child's general well-being including, but not limited to, all decisions regarding his health, education and religion. 4. Mother shall have primary physical custody of the child. child: Father shall have the following periods of partial physical custody of the A. Beginning August 30, 2002, two consecutive weekends out of three from Friday at 5:00 p.m. to Sunday at 5:00 p.m. B. In the event the child has a school holiday that falls on a Monday, Father's weekend shall be extended to Monday at 5:00 p.m. C. Beginning August 28, 2002, every Wednesday from 5:00 p.m. to 8:30 p.m. 6. Transportation shall shared as agreed by the parties, except that Father shall provide all transportation on Wednesdays. 7. Neither parent will allow the child to share a bedroom with a male child in their respective homes. 8. The parties may modify this Order by mutual agreement. In the absence of mutual consent, the terms of this Order shall control. BYTHECOURT, cc: Karl E. Rominger, Esquire, counsel for Father Joan Carey, Esquire, Mid Penn Legal Services Jo DAVID KILLIAN, Plaintiff V. TAMMY SHOEMAKER, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW : : NO. 2002-3716 CIVIL TERM : : IN CUSTODY PRIOR JUDGE: Kevin A. Hess, J. CUSTODY CONCILIATION SUMMARY REPORT IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE 1915.3-8, the undersigned Custody Conciliator submits the following report: 1. The pertinent information concerning the Child who is the subject of this litigation is as follows: NAME DATE OF BIRTH .CURRENTLY IN CUSTODY OF Mary Lynn Shoemaker February 23, 1996 Mother 2. A Conciliation Conference was held August 27, 2002, with the following individuals in attendance: The Father, David Killian, with his counsel, Karl E. Rominger, Esquire, and the Mother, Tammy Shoemaker, with l~er counsel, Joan Carey, Esquire, Mid Penn Legal Services. 3. The Honorable Kevin A. Hess previously entered an Order on August 9, 2002 requiring Mother to Answer the Rule to Show Cause why Child's physical custody should not be transferred to Father. Mother filed a timely answer. The Court has not ruled in the matter as of the date of the Conciliation Conference. In light of the recommended Order attached hereto entering an interim custody schedule and scheduling a hearing, it is suggested that the Rule to Show Cause is moot. 4. Father's position on custody is as follows: Father seeks shared legal and primary physical custody. Father maintains that while in Mother's primary care, the child contracted head lice and missed several days of school last year. Cumberland County Children & Youth Services investigated the matter and while dependency was not petitioned, a caseworker recommended that Father obtain primary physical custody of the child. Since that time, another investigation by C&Y is underway on an alleged abuse by a male half sibling of the child. Father accuses Mother's son, while Mother accuses Father's son. Father claims since the allegation of abuse by a male half sibling was filed with C&Y, Mother has denied Father access to the child. 5. Mother's position on custody is as follows: Mother seeks shared legal custody and primary physical custody with Father having two weekends out of every three and Wednesday evenings. Mother alleges the child contracted head lice from Father's home. Mother alleges Father's son abused the child, while Father alleges Mother's son abused the child. Mother denies withholding access of the child from Father, claiming that Father has not requested any periods of custody since the allegations of abuse arose. 6. The Conciliator recommends an Order in the form as attached scheduling a Hearing and granting the parents shared legal custody, Mother primary physical custody and Father having two out of every three weekends, Friday to Sunday and every Wednesday. Also recommended is that the child should sleep in a separate bedroom from any male child in either home. It is expected that the Hearing will require one half day. Date Custody Conciliator