HomeMy WebLinkAbout94-05856
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LINDA R. MIJUlSICr IIN TBB COURT OF COMMON PLUS OP
Plaintiff ICUMBERLAND COUNTYr PBNNSYLVANIA
.
v .NO. 5856 - CIVIL - 1994
.
DANIIL M. SCHENK, I
Defendant ~~ ~ICIV:I~:CTION - CUSTODY
AND NOW, thh' 1" day of , 1996, upon condderation
'of the attach'ei-custodY n at on Report, it i. ordered and
directed as follows.
1. The existing Order of Court in the above case is hereby
vaoated.
2. The Mother, Linda R. Mikesic, and the Father, Daniel M.
Schenk, ehall enjoy ehared legal custody of Rae Ann Schenk,
born Deoember 11, 1985.
3. The Mother ehall enjoy primary physical custody of the
minor child.
4. The Father shall enjoy periods of temporary physical
cuetody of the minor child as follows.
A.
B.
For two weekends per month. One weekend shall b.
the standard Friday evening at 5 P.M. until Sunday
evening at 7 P.M. The second weekend shall be the
weekend during the month in the school year when
the child has a long weekend off from school. For
the next few months, these weekends Ihall include
February 16 through 19, April 5 through 8, and May 24
through 27. March doee not include an extended
weekend vacation. On those three mentioned weekende
when the Father shall have the child over through
Monday, Father ehall return the child at 7 P.M.
Father shall aleo enjoy legal custody of the minor
child for three eeparate ten day per ods during the
summer monthe. Thele three ten day periods shall
be non-consecutive and it shall be attempted to work
out an arrangement whereby there is a reasonably
conei.tent number of day. in between the three ten day
time frames throughout the summ~r month.. During the
summer month. and during the time that the rather i.
enjoying the extended periods of temporary cu.tody ..
. ,
, . . '
5.
6.
outlin.d in thi. paragraphr the tWQ weekend per month
eahedule .hall be .u.pended. The weekend .chedule
.hall apply only during the .chool year with the ten
day .chedule a. outlined in thi. paragraph to apply
during the .ummer month..
Traneportation .hall be .hared between the partie. on an
equal ba.i.. However, in light of the Mother'. current
medical .ituation, Father .hall handle all tran.portation
for exchange of cu.tody for February, Maroh and April.
Commencing in MaYr Mother .hall agaln handle 50 percent of
the tran.portation and .he .hall al.o make up to the rather
before the end of the year three time. of tran.portation
to compen.ate Father for the extra traneportation he
perfol~d during February, March and April. Mother re.erve.
the right to elect to do her tran.portation on .pecific
weekend. that her current hu.band neede to go back to
Cambria County for hi. National Guard commitment. o~ on
.uch weekend. that Mother ha. plan. to go and vi.it her
family in Cambria County. Mother .hall advi.e Father at
leaet thirty day. in advance a. to when .he intend. to
exerci.. her exolu.ive option to .elect a weekend for
her tran.portation.
Father .hall advi.e Mother by May 1 of eaoh year a. to the
period. of time that would be allotted to the Father during
the eummer month.. In the event that Mother ha. a vaoation
time her.elf .cheduled that may interfere with Father'. time,
.he ehould advi.e Father a. .oon a. poe.ible with re.pect to
.uch vacation.
7.
On exchange of ou.todYr in .ituation. where the Mother
deliver. the child to Cambria countr for the Father'.
period. of temporary cu.tody, the t me of exchange on
rriday evening. .hall be 7 P.M. and the time of exchange
on Sunday .hall be 5 P.M. When the Father pick. the ohild
up in Shippeneburg on Friday evening and take. the child
back to Shippen.burg on Sundar' the time for exchange of
ou.tody .hall be 5 P.M. on Fr day evening (at Father'.
option) and 7 P.M. on Sunday evening.
The partiee .hall continue to handle the holiday .chedule
a. they have in the paet a. agreed upon by the partie..
rather .hall be afforded rea.onable telephone contaQt with
the ~nor child with the euggeeted timee to be every
Nedneeday at approxiaately 7 P.M. and one time on the
weekende that the rather do.. not have cu.tody. The..
8.
9.
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Icheduled telephone calli may be replaced with call. from
the child to the Father which the child may initiate via
collect telephone call..
10. The above i. a Ihared cUltody arrangemant and the appropriate
pUblic bodie., including .chool di.trict.r Ihould .hare with
both parent. the relevant information concerning the minor
child. However, thil Order .hall not be con.trued that
would allow the Father to rellove the child froll .chool without
written coneent froll the Mother.
11. Neither party Ihall take the child out of .tate for an
overnight vieit without fir.t adviling the other parent of
tbe location where the cbild will be .taying to include
telephone number and addre.e and the duratio.. of the
anticipated etay out.ide of the Commonwealth of Penneylvania.
12. Thi. Order ie entered purluant to the attached Cuetody
Conciliation Report. It ie noted that the Father wa. not
in attendance at the Conciliation Conference. In the event
that the Father de.iree to have thi. Order modified in any
fa.hion, the Father Ilay petition the Court to have the ca.e
again .cheduled with the Cuetody Conciliator. Under euch
circum.tancee, the Conciliator .ball .chedule a conference
a. expeditiouely a. poe.ible and ehall endeavor to echedule
a Conference on a Friday afternoon to coincide with a
weekend where the Father ie coming to Cumberland County for
an exchange of cuetody. In the event a reque.t for a
Conciliation Conference i. made, the Father hilleelf or
through hie attorney ehould advile the Conoiliator
concerning thi. provi.ion on .cheduling a Hearing.
BY THE COURT,
Ju
CCI C.rol J. Lind.ay, I.quire
Harold S. Irwin, III, .Iquire
Daniel M. Sohenk
~~.L ~13/9b.
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I IN TBI COURT or COMMON PLIAS or
ICUMBERLAND COUNTYr PINNSYLVAHIA
I
INO. 5856 - CIVIL - 1994
I
I
ICIVIL ACTION - CUSTODY
LINDA R. MUISICr,
, Plaintiff
DANIEL M. SCBENK,
Defendant
PRIOR JUDGE. JUDGE GIORGB E. HOPFBR
CO.CJLJAlfJO. COIInU.CI IUllllJay UPOalf
IN ACCORDANCB WITH CUMBIRLAND COUNTY CIVIL RULlOI' PROC.DUR!
19l5.3-8(b)r th~ under.igned Cu.tody Conciliator .ubmit. the
following report I
1. The information pertaining to the child who i. the .ubject of
thi. litigation i. a. follow..
Rae Ann Schenk, born December 11, 1985.
2. A Conciliation Conference wa. held on January l8r 1996, with
the following individualu in attendance.
The Mother, Linda R. Mikelic, with her coun.elr Carol J.
Lind.ay, I.quire. The Father did not attend the Conference.
The Father wa. previou.ly repre.ented by Attorney Harold B.
Irwinr III, and Mr. Irwin advi.ed the Conciliator in a
telephone conver.ation that Mr. Schenk did have notice of
the Conference. However, Mr. I rwin had not ...de arrange..nt.
to repro.ent Mr. Schenk at the Conference.
The partie. were previou.ly before the Cu.tody Conciliator
in the .pring of 1995 at which time the partie. agreed to
undergo a cu.tody evaluation. An evaluation wa. p.rfo~d
by Dr. Arnold T. Sheinvold.
3.
4.
The exhting Cu.tody Order h that the rather ha. cu.todI of
the minor child three w.ekend. per Dlonth. The rather re. d..
in Cambria County and the Mother r..id.. in Shippen.burg.
The long di.tance betw.en the partie. ha. creat.d a burden
on the part i.. for purpo.e. for tran.portation for exchange
of cu.tody. Additionally, the Mother i. pregnant and
expecting delivery of her .econd child in aid-rebruary of
1996. Her pregnancy .tatu. al.o require. .0.. .edification
in the tran.portation arrangement.
v
:IN 'l'HB COUR'l' OF COMMON PLBAS OF
:CUHBBRLAND COUN'l'Y, PBNNSYLVANIA
:
:NO. 5856 - CIVIL - 1994
:
:
:CIVIL AC'l'ION - CUS'l'ODY
LINDA R. HIlCBSIC,
PlainUU
DANIBL H. SCHBNK,
Detendant
COIIClLIA'UON CONFIJRDCJ: stHfARr REPOR'l'
IN ACCORDANCB Iil'l'H CUHBERLAND COUNTY RULE OF CIVIL PROCEDURB
J91S .3-8 (b), the undersigned Custody Conciliator submlt. the
tollowing report:
l. 'l'he pertinent intormation pertaining to the child who is the
the subject ot tlds litigation is as tollows:
Rae Ann Schenk, born December 11, 1985.
Z. A Conciliation Conterence was held on January 6, 1995, with
the tollowing individuals in attendance:
'the Hother, Linda R. Hikesic, with her attorney, Carol J.
Lindsay, Esquire, and the Father, Daniel M. Schenk, with
hi. attorney, Harold S. Irwin, III, Esquire.
3. 'l'hi. case involves a jurisdictional issue. 'l'he partie.
agreed at the Conciliation Conterence to stipulate to various
tacts which will be recited below and to then submit those
tacts to the Cumberland County Court tor this Court's
disposition ot the issue ot whether Cumberland County has
jurisdiction over this case and, it so, whether Cumberland
County should exerci.e that jurisdiction. 'l'he tact. that the
partie. are able to agree on are as tollows:
A. 'l'he parents, Daniel H, Schenk and Linda R. Hikesic,
were married in November of 1985 in Cambria County.
B. 'l'he minor child, Rae Ann Schenk, was born December JJ,
J98S. Prior to marriage, the 'ather lived in Cambria
County and had been born in Cambria County. 'the Mother
was raised originally in Baltimore but had Jived in
Cambria County tor approximately ten years prior to the
parties' marriage.
C. the partie. .eparated and Were divorced in J987.
D. In J988, the partie. went betore the Cambria County
.
Court at Docket No. 1988-2486 whereby a Custody Order
was issued with the parties sharing physical custody
but with Mother having primary physical custody.
S. In 1992, Mother desired to relocate to Cumberland
County and petitioned the Cambria County Court tor the
ability to take the minor child to Carlisle. By
agreement ot the parties, an Order was issued trom the
Cambria County Court dated September 10, 1992 whereby
the Mother was allowed to relocate to Carlisle and
also maintain primary physical custody ot the child.
The Father would retain certain periods ot temporary
custody. A copy ot that Order is ~ttached hereto and
marked IIxhibit "A".
F. Since September ot 1992, Mother has resided in Cumberland
County with her spouse and the minor child.
G. Since September of 1992, Father ha" e"erci"ed temporary
cu"tody with the minor child in Cambria County on three
weekends per month and shared holidays.
H. Father continue. to reside and work in Cambria County.
1. The Father has not remarried. He lives alone.
J. The Hother live. with her husband and the minor child
who is the subject ot this custody di.pute. There are
no other children in that home.
K. The minor child attends the Shippensburg School District.
~. In spring of 1994, the Father tiled a Petition in Cambria
County at Docket No. 1988-2486 whereby Father sought
moditication ot the existing Custody Order ot Cambria
County. There ha. been no Hearing conducted or any
activity on that Petition since its tiling in the spring
ot 1994. The parties are unclear concerning what
exactly transpired procedurally in Cambria County atter
the Petition fOl' Modification was filed in the spring ot
1994.
M. Mother instituted this Petition for Modification ot
th Cambria County Order on October 13, 1994.
H. The minor child is currently attending counseling with
a counselor in the Carlisle Area, this counseling haVing
been ongoing since early 1994. The minor child also
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In the Iprlng of 1994, the father filed a Petition In Cambria County to rnodIti the
exllting Court Order. Mother Is challenging the Jurisdiction or the Cambria County Court In the
Ught of the child's residence In Cumberlend County for the past two end one-he/f yara.
On October 13, 1994, the mother filed a Petition for Modification In CumbIrtend
County. At the conciliation conference on January 6, 1995. the jurlsdictJon or the CumberIMd
County Court was ralsed by father. This Memorandum outlines the law In support of the
mother's contention that this honorable Court has Jurisdiction and that the Cambria County Court
does not, end in support of the mother's contention that even If Cambria County has Jurisdiction,
the more convenient forum, given the facts of this case, Is Cumberland County,
II. DISCUSSION
Section 5364 of the Child Custody Jurisdiction Act, 23 Pa.C,S,A, 15341 at.leq"
epp/let the statutes governing Interstate Jurisdiction to the 'Jurisdiction and functions betwean and
among the Courts of Common Pleas of this Commonweahh'.
Mother is asking this Honorable Court to mOdify the 1992 Cambria County Order,
Modification of a forelgri Court Order is governed by Section 5355, which stat.. in pertinent pert:
(a) General Rule. . If a Court of another [county) has made a custody
decr.., a Court of this Commonwealth shall not modify that decree unless:
(1) " appears to the Court of this [county) that the Court which
rendered the deer.. does not now have Jurisdiction...; and
(2) that a Court of this [county) has Jurisdiction.
2
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Does Cumberland County have Jurisdiction? Pursuant to 23 PI.C,S,A, 15344, IhII
Court certainly has Jurisdiction since It has been the 'home county' of the child II the time of the
commencement of the custody modification proceeding, and, In addition, It hu been the home
atate of the child within six months prior to the commencement of the proceeding. There can
be no question that Cumberland County has Jurisdiction.
Does Cambria County have Jurisdiction? We believe it does not. That Is beceUle
none of the five methods by which a Court can exercise Jurisdiction Is applicable In this cue.
To begin, Cambria County Is clearly not the home county of the child, since the child haa lived
In Cumberland County for the last two and one.half years, Secondly, although one of the
parents, the father, has a significant connection with Cambria County, the subetantlal evIc:Ience
concerning the present and future care, protection, training and personal relatlonth. of the
child Is in Cumberland County, where she has lived for the last two years, and where her school
and private counselor are. Third, no one In this case asserts that there Is reason for the Court
to exercise emergency Jurisdiction. Fourth, Cumberlal1d County has Jurisdiction, 10 this Is not
one of those rare instances where no Court meets the jurisdlctlona' requirements, Finally,
Children's Service. Is not involved in this case. Therefore, by a review of the live methode In
which . Court can exercise jurisdiction, it Is clear reveals that only Cumberland County hM
jurlsdlCllon Cambria County does not.
3
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Finally, mother asserts that even If Cambria County were found to have JurIIdIctIon
along with Cumberland County, Cumberland County would be the more convenient fon.m. .
SectIon 5348 of the Child Custody Jurisdiction Act controls.
(c) Factors to be considered. . In determining if It Is an Inconvenient forum,
the Court shall consider if It Is In the Interest of the child that ~ (county)
usume Jurlsdlctlon. For this purpose, It may take Into account the following
factors, among others: (1) If another (co~nty) Is or recently wu the home
(county) of the child. (2) If ant)ther [county) has a closer connection with the child
and his family or with the child and one or more of the contestants, (3) If
substantial evidence concerning the present of Mure care, protection, training and
personal relationships of the child Is more readily available In another (county), (4)
If the parties have agreed on another forum which Is no less appropriate. (5) If
exercise of Jurisdiction by a Court of this [county] could contravene any of the
purposes stated in Section 5342 (relating to purposes and construction of
subchapter).
Cambria County is an Inconvenient forum because another county, Cumberland
County, Is the home county of the child. Further, Cumberland County has a closer connection
with the child presently through the schools, physicians and psychologists which currently
service the child. Therefore, substantial evidence concerning the present and future car. of the
child Is right here, in Cumberland Cour.ty. Obviously, the parties have not agreed on another
forum, Finally, Section 5342, which sets out the purpl)ses of the Act, notes, In subsection (3).
that a significant purpose is to Insure that litigation concerning the child take place where the
most significant evidence regarding his care and protection, training and personal relatlonehlpe
Is molt reedily available. Given the background ot this case, mother asserts that CumbetIInd
County I. the more convenient forum for thl. ca.e.
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HAROLDS.IRWIN,///
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The court need not addreuthe luue oUorum non convenience in liaht oflhe tict
that an petllion for modificltlon of the original custody order i. pendina in the Cambria
County Court. The Uniform Child Custody Jurisdiction Act specificalJy proviclea
(I) COUrt of this Commonwesllh ahall not Ollercise its jurisdiction under thi.
subchapter if. at any time of filing the petilion, a proceedina concemina the
custody of tile child wu pendill8 in I court ofanolher Sllle (or
commonWealth) Ollercilina jurisdlclion sub.tantially in confOrmity with Ibis
subchapter.. .
23 Pa.C.S.A. 15347.
Therefore, lK:COrdlns to Ihe specific stltutory requiremenl, the Cumberland County
Court of Common Pleas must stlY lis proceedinss and defer ils jurisdiction to the Cambria
County Court until the pendinS action is resolved.
Moreover, defendant requelllhatthe Court look upon plaintiff's briefwilh
prejudice bee., '10 plaintiff failed 10 comply with Ihe court order requlrins lhat brief. be
filed by February 6, ) 995, Plaintiff withheld her brief for an extrl week in violation of the
court order.
February U, 1995
Respectfully SuL8Illted.
(~lf?
Harold S. . OJ
Altol'll'1 'or Def.....
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SUMMA,V 9F AR<iU~I:NT
In thillitualion, bolh the Clntbria County Coun and the Cumberland County
Court can claimjuriadictlon over the custody matter regardina Rae Ann Schenk. The
Cumberland Counly Coun, however, should defer 10 Ihe juriildiclion of the Clntbria
County Court pursuant to Ihe Unifonn Child CUltody Juriadiction Act (hereinafter
UCCJA). 23 PI,C.S.A. section 5341 el seq, (1990). Additionally, thil Coun should
decline juriildiction of this miller because Cumberland County Coun is an inconvenient
forum for lhe resolution of this maller,
Al1hough lhe UCCJA focuses mainly on interstate conflicts over jurisdiction, the
..atute and cue Ilw suppon lhe fact that the Acl applies to intrulate contlicta between
commonwealth CQurts,
In a situation where two commonwealth courts may exercise juriidiction, only one
should uaume lhal responsibility, The UCCJA requirelllhat a court should not exercise
juriildiction when a proceeding regarding lhe custody of IIIe child is pendinS in ano'her
commonweahh coun, AIIIIe momenl, il is believed Ihat the petition ofllle Daniel Schenk
is still pendilli in lbe Clntbria Coun'y Coun, Your petitioner should not be pennilled to
circumvenl tile proceeding in Clntbria Counly by obtainini a Seller" continuance or a
bellill(l in Cambria County and lben filins her own petilion in this Court, Thereforo, ,lie
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OCT 13 ~ '
-elL
1l,""II1~ j'" ,,. ""_"01
UNDA R. MIKESIC, . IN THE COURT OF COMMON PLEAI OF
.
Plaintiff/Petitioner . CUMBERLAND COUNTY, PENNSYLVANIA
.
.
.
Y. . CIVIL LAW . CU'TODY
.
. NO. 14 . CIVIL TERM
.
DANIEL M. SCHENK, .
.
Defendant/R_pondent . IN CUSTODY
.
NOW comes Unda R. Mlkeslc, by and through her counsel, FLOWER, MORGENTHAL,
FLOWER & LINDSAY. and petitions this Honorable Court es follows:
1, Plaintiff/Petitioner Is Unda R. Mlkeslc, an adult Individual, who currently resides It 9
Highland Avenue, Shlppensburg. Cumberl811d County, Pennsylvania.
2. Defendant/Respondent Is Denlel M. Schenk, an &dult Individual, who currently resld..
at R, D. 1, Box 81, Ebensburg, Cambria County, Pennsylvania,
3. The parties are parent of Rae Ann Schenk, born December 11, 1985.
4. Pursuant to a Court Order of the Court of Common Pleas of Cambria County,
Pennsylvania, Issued on September 10, 1992, Petitioner Is the primary physical custOdian of said
child. A copy of the Court's Order of September 10, 1992 Is attached hereto as Exhibit .A.,
5. Petitioner has been the primary physical custOdian of said child since her "petition
from R..pendent in August, 1987.
8. Petitioner and the child moved to the Carlls" .....In 1992, and th.y have ".Ided ther.
Ilnce that time.
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7, Petitioner ,eek, modlftcatlon of the Cambria Court Order for the following reuonl:
A, The period of partial cuatody permitted to Respondent I' excelllve given
the schedule of the child and Petitioner;
B, Respondent consistently violates Perlgreph 5 of the September 10, 1992
Order In that he makes frequent and acrimonious contact with Petitioner
and her husband;
C. Respondent has emotionally abused the child, threatening to kill
her pets, badgering her to make false reports about Petitioner
and her husband, and expressing frequent and violent animosity
to Petitioner so that the child has developed
obsess;ve!compulslve disorder, anxiety, stuttering and other
neurotic symptoms which require treatment;
0, Despite repeated requests by Petitioner and the child's therapist,
Respondent has refused to engage In family counselling with the child
and her therapist.
WHEREFORE, Petitioner prays this Honorable Court to modify the Order of the Court of
Common Pleas of Cambria County, Pennllylvanla. of September 10, 1992, to transfer to Petitioner
primary physical and legal custody of the child, to require supervised visit. with the child and to
require Respondent to engage In counselling with the child and her therapist.
FLOWER, MORGENTHAL FLOWER' UND8AY
Attorney. for P1llntm/Pet"IOner
By, ,~!"~0:~,_
..) ID. 448llG
11 E... High Sit...
Carl'-". PA 17013
(717) 243.5613
2
IN THI COURT or COMMON PLIAS or CAMIRIA COUNTY, PINNSYLVANIA
CIVIL DIVISION
No. 1988-2486
LINDA .. (SCHINK) MIKISIC, .
.
Plaintiff , .
v.. ,
,
DAN IlL K. SCHENK, I
,
D.f.nd.nt. .
PITITION rOR SPICIAL IILII!
~ MODlrICATION Of CUSTODY
APPIAIANCIS.
ror the Plaintiff.
~OGIR D. MCGILL, ESQUIRI
for the D.f.nd.nts
JEROME KAHARICK, BSQUIRI
OIDIR
AND NOW, thia 10th day of S.pt..b.r, 1992, on .gr....nt
of th. partl.., it 1. h.r.by OaDIRID .nd DICRIID aa followa.
1. Th.t th. Plalntlff, Llnda R. Mik..le (for..rly Llnda
Sch.nk), ia p.r.itt.d to .ov. to th. Carl1al. ar.a of
P.nnaylvanla, to a.t up r.aldene. with h.r curr.nt apoua.,
and that ahe ahall continu. to b. th. prl.ary phy.ieal
cuatodlan of the .inor child, .a. Ann Sch.nk (DOl-12/11/85).
2. That th. legal euatody of the .1nor child, .a. Ann
Schenk, ahal1 b. aha red by the partle., Llnda I.Mik.aie and
Dani.l H. Seh.nk.
3. That th. D.lendant, Dani.l H. Sch.nk, .hall hav.
cuatody tor the purpoa. ot vlaltation the tira', aecond, and
third v..kend. ot each aonth. T~ aeca.pllah th.a. vi.ita,
-
h. ~I'J,T 1 f
}oyu L. Lon,
Officl4l Cillo" "~,,,,,,.
fD",' \".,.,11 JwJlC"" Db'''",
Eh,.,;",,~. Prn"../r'un".
.. .
. .
"
the Def.nd.nt vill pick up ..id child .t the Pl.intiff'.
re.idence .t .pproxi..tely 7.00 p... rrid.y, .nd the Pl.in-
tiff vill pick up the child .t the D.fend.nt'. r..id.nc. .t
.pproxi.at.ly 5.00 p... on Sunday.
4. Th.t the p.rti.. .h.ll .h.r. holid.y. on a .ch.dul.
by .gr....nt, or f.iling an .gr....nt b.tw..n the p.rti.., .
.ch.dul. a. thi. Court vill l.t.r d.t.r.ine.
5. Th.t the p.rti.. .h.ll .ak. .rrang...nt. f9r t.l.-
phon. contact b.tw..n the f.th.r, D.ni.l H. Sch.nk, .nd h~.
.lnor child, .a. Ann Sch.nk, that during tho.. t.l.phon.
c.ll., the part i.. .hall avoid any acrl.oniou. contact on.
with the oth.r, and th.t tho.. t.l.phon. contact. .hall b.
a. fr.qu.nt a. the partl.. .gr.. or .. the .lnor child
requ..t..
6. That If the D.f.ndant, D.ni.l H. Sch.nk, r.qu..t.
and conv.y. to thl. Court the n..d for furth.r h.aring on
the i..u. of pri.ary phy.ical cu.tody, th.t r.qu..t .hould
b. .ad. through hi. attorn.y, and. h.aring th.r.aft.r .h.ll
b. ..t. Thi. Court .hall r.tain juri.Qic~lon lor that
purpo...
BY THI COURTI
-.....--
,
'l'iaothy P
, 1
.' ,
.
*
~'r-c\,~. 1"1; ~f')j(. PlaintUt
v
'IN 'l'HE COUR'l' OF COMMON PLBAS OF
,CUHBflRLAND COUN'l'Y, PENNSrLVANIA
I
'CIVIL AC'l'ION - LAW
I
INO. q'/"5~""b CIVIL 19
I CUSTODY /VISI'l'A'l'ION
*
D~". r'\ lVI, 51' W.l\( Defendant
ORDER OF CODRl'
Dc- ~- (l,o 1Cf:!",
AND NOW, this (datj,) , upon consideration ot the
attached complaint, it is hereby directed that the parties and
their respective counlle app ar betore ~W(t- j.. blcoy I:!.:,
the conc;Uiator, at t'h ocr ,,"'.. .fI'h~""
on the ~l sLday 0 --~"...",. , 1 ,at ! 0 n."
N., tor a Prehearing Custody Conterence. At such con erence,
an ettort; will be made to resolve the issues in dispute; or it
thJ.s cannot be accomplished, to detJ.n. and narrow the issues to be
h.ard .by the court, and to enter .1lJto a teJD,porazy order. Either
party may bring the child who i. the subject ot this custody
actJ.on to the conterence, but the child/children's attendance i.
not mandatory. Fallure to appear at the conterence 'mlAY provide
grounds tor entry of a temp~rlAry or permlAnent order.
,
1'0.1 'l'HB COUR'l'1
By, 3~~fJ)
rou SHOULD 2'AD 2'HI S PAPER ro roUR LAfID.R A2' ONCB. 1 F rou DO N02'
RAR A LAflDR OR CANN02' Al'I'ORD OD, GO 'l'O OR 2'ELBPHONB 'l'HE OFFICB
SB2' FOR2'H OW" ro FIND OU2' fIIIl/lUf YOU CAN GJ:'l' LBGAL HELP.
OFFICE 01' 'l'HB COUR2' ADHINlS'l'RA'l'OR
COUR'l'HOUSB, I'OUR'l'H FLOOR
CARLlSLB 'A 17013
(717)240-6200
,
~
I do hereby verUy that the Kia set forth in thia petition lie true and correct. I und.-1tInd
'that &lse ltatementa herein lie made subject to the penalties of! 8 P..C.S. Section 4904, relatina
to UDIWOm t'alai.ftcation to IUlhorities.
/..;1- /7 .1996
,'//21/~ J~ /
DAND:L , SCHENK
. .
, 'nt/
'"J
LINDIo HIBBIC,
Pl.intiff
V
DIoNIIL H. BCHINlC,
D.t.nd.nt
I IN 2'HB COURT 0' COHHON PLUB 0'
ICUHBBRLAND COUN2'r, PBNNSrLVANIA
I
,CIVIL AC2'ION - LA"
,
tNO, 94 - 5856
tIN CUS'J'ODr
Prior Judg., G.org. B. Hotter
COUR2' ORDER
AND NOfI, thi. Z'1 ~ dllY at C\0U..I.~ , 1997, upon
con.id.r.tion at the att.ch.d cu.top~ Concill.tion R.port, it i.
ord.r.d .nd dir.ct.d II. tollo.,., i/"
J. In the .v.nt th.t Hoth.r d..ir.. to tile . P.tition to modify
the .xi.ting F.bru.ry 13, 1996 Ord.r at Court in thi. c...,
.aid P.tition .h.ll b. til.d within 20 d.y. ot Hoth.r'.
coun..l r.c.ipt at thi. Court Ord.r. In the .v.nt th.t .uch
a P.tition i. til.d, the P.tition .,ill be heard at the .am.
tim. .. ,.th.r'. Petition lor Cont.mpt .nd at the he.ring
.ch.dul.d b.low.
2. A h.aring i. .ch.dul.d in Courtroom No. at the Cumberland
~nty Courthou.. on the _L~'" d.y ot , 1997 at
.~m. .t .,hich tim. tiif.[mony will . ..n n thi. c....
.th.r .h.ll b. the moving p.rty .nd proc..d initially .,ith
t..timony. Coun..l tor the p.rti.. .hall tile with the Court
.nd oppo.ing coun..l . Hemor.ndum ..tting torth the hi.tory ot
cu.tody in thi. c..., the i..u.. curr.ntly b.tor. the Court,
.ach p.rty'. r..p.ctiv. position on tho.. i..u.., /I li.t ot
wi tn..... that .,ill b. call.d by each party .long with a
.u..ary ot the anticipated t..timony ot ..ch witn.... 2'h...
_morandUJII. .hall b. til.d at l...t JO d.y. prior to the
h..ring date.
J. P.nding turth.r Ord.r ot thi. Court, thi. Court'. Ord.r ot
'.bruary 13, J996 .haJl rem.jn in ett.ct.
J.
eel Carol J. Lind.ay, '.quir. _ ~~
John D. Br.nn.r, Jr., I.quir. ~'U
I
:4 Ilo/lf?'
.J..'P
. ...
LINDA HIBBle,
PldntJ.tt
V
DANUL H. BCH~NIC,
Detendant
Prior Judge, George B. Hotter
CXJIIClz,zA'l'IOB CuIr.-..rd:1ICII SDHNARY JUlJ'OR'l'
, IN 'tN~ COUR't or CONNON PLUS or
,CUHB~RLAND COUN'IY, P~NNBfLVANIA
,
,CIVIL AC'II0N - LA.,
,
'NO, 94 - 5856
'IN CUS'l'ODf
IN ACCORDANCB "I'1H '1HB CUHBBRLANCI COUN'If CIVIL RULB or PROCBDURB
J9J5.3-8(b), the undersigned Custody Conciliator submits the
tollo",ing report'
J. 'the pertinent intormation pertaining to the child who is the
subject ot this litigation is a. tollo",s:
Rae Ann Schenk, born December JJ, 1985.
2. A Conciliation Conterence ",as held on January 22, J997, ",ith
the tollo",ing individuals in attendance, the Nother, Linda B.
Hike.ic, with her coun.el, Carol Lind.ay, Bsquire, and the
rather, Daniel H. Schenk, ",ith hi. coun.el, John D. Brenner,
Jr., E.quire.
3. 'the partie. were betore the conciliator la.t January at ",hich
time the rather did not attend the conterence but the Nother
attended the conterence. Nother wa. reque.ting a moditication
ot a prior Order, and the Court did adopt a recommended Order
trom the conciliator ",hich granted the Nother her reque.ted
relief. '1here ",ere apparently t",o incident. in February of
J996 when rather went to get the minor child and there 11I'..
some di.pute bet",een the partie. a. to ",hieh parent was going
to handle tran.portation for return ot the child. U1Hmately,
the child did not go with the Father and the rather sugge.ts
becau.e the Nother retused to allo", the child to go. rather
sugge.ts that .ince February he ha. made a number at phone
calls to the Nother in an attempt to schedule other visitation
arrangements and, rather indicates that each time hi. attempts
to contact the Mother ",ere unsucce..tul. 'l'he exi.ting Order
provides rather at lea.t ewo weekend. per month. 'ather has
not .een the minor child .ince January at J996.
4. rather i. .eeking a Contempt Peti Hon andts .eeking to
enforce the existing Order of rebruary ,jJ, 1996.
,. Hother i. vigorou.ly conte.ting rather'. reque.t. Nother
",ants the existing Order modified. She indicate. that the
child is doing well not seeing the Father and that the child
i. completely bonded with Nother and Hother' s new husband.
Hother's coun.el indicated that Hother would be tiling a
Petition to Hodify the existing Order which could be heard at
~
re
. ,..
the .... t~ .. the contempt He.rJng.
fhe concJlJ.tor recommend. an
.. aU.ched.
..
/
, .
'. '
"\""I~_,.... 11II '_NoIlI
UNDA R. MIKESIC,
P1llnt1ff/Pttltloner
v.
IN THE COURT OF COMMON PLEAIOF
CUMBERLAND COUNTY, PENNIYLVANIA
CIVIL LAW . CUSTODY
NO. 84 5858 CIVIL TERM
IN CUSTODY
DANIEL M. SCHENK,
Deftndlnt/R..pondent
NOW comes Linda R. Mikeslc, by and through her counsel, FLOWER, MORGENTHAl,
FLOWER & LINDSAY, and petitions this Honorable Court as follows:
1. Plalntiff/Petllloner Is Linda R. Mlkesic, an adult Individual, who currently resides at 9
Highland Avenue, Shlppensburg, Cumberland County, Pennsylvania.
2. Defendant/Respondent Is Daniel M. Schenk, an adult Individual, who currently resides
at R. D. 1, Box 81, Ebensburg, Cambria County, Pennsylvania.
3. The parties are parents of Rae Ann Schenk, born December 11, 1985.
4. On February 13, 1996, pursuant to a custody conciliation, this Honorable Court
entered an Order of custody.
5. Since the entry of the Court's Order, circumstances have changed so that the Order
should be substantially mOdified. They include:
A. Threats by the Defendant not to return the child after visits;
B. Respondent's permitting a substantial period or time, seven
months, without contact with the child.
.
"
fully set forth herein at length, Furthermore, plaintiffs averments of changed circumstances u
contained in this paragraph of her petition are specifically denied u follows:
A, The defendant baa not threatened not to return the child after visits.
B. The defendant has not permitted a substantial period of time, seven
months, without contact with the child. To the contrary, plaintiff bas repeatedly denied
defendant access to the child in person or on the telephone, in direct contempt of the
Order of Court previously entered in this matter.
C, Defendant, after reasonable investigation, is without information sufficient
to form a belief as to what plaintiff bas leamed to the effect that defendant has consorted
, and permitted the child to consort with drug users and/or dealers, lUId proof thereof at the
hearing in this matter is demanded, if relevant By way of further answer, however,
d~fendant specifically denies that he consorts with or permits the child to consort with
drug users and/or dealers.
D, Defendant, after reasonable investigation, is without information sufficient
to form a belief as to any decision of the child that she does not want to visit with the
defendant and proof thereof at tbe hearing in this matter is demanded, if relevant. By way
of further answer, however, defendant specifically denies that the child does not want to
visit with him. On the contrary, defendant beli~es and therefor avers that plaintiff has
made every effort to discourage the child from having any relationship whatsoever with
the defendant and may have even expressed Inger, resentment or disappointment with the
child when the child wanted to visit with the defendant, thereby causing the child to be
reluctant to visit with the defendant at the risk of upsetting plaintiff,
6. The averments of parall1aph six of plaintiffs petition are specifically denied On
the contrary, defendant believes and therefor avers that based on plaintiff's blatant contempt of
C. Tbat the Father, defendant herein, had temporary physical custody on two
weekends of each month of varying lengths, shared holidays and three 10 day periods in
the Summer; and
D. That the Father would have reasonable telephone contact with the child,
suggested as Wednesday at 7:00 p.m. and once on weekend during which Father does not
have custody of the child.
10. Said Order constituted a reduction of the amount of time defendant had previously
enjoyed with his daughter pursuant to previous Orders of Court.
II. Plaintiff has repeatedly violated the previous custody order and the order entered
February 13, 1996 in the following manner:
A. Defendant has been permitted no phone contact with the child since
January 4, 1996, due to either no answer, answering machine only or plllintiff hangins up
the phone without permitting the phone call of defendant;
B. Defendant has not had the child for his weekend partial custody since the
weekend ofJanuary S, 1996. The weekends of JInuary 12 and January 19 were missed
due to weather; however, on February 2, 1996 and February 9, 1996, though defendant
went to plaintiffs home to pick up the child, he was not permitted to take the child.
Defendant has not attempted to see the child since February 9th because he has not been
able to make phone contact nor has he been successful in his last two trips from Cambria
County to Cumberllnd County to pick up the child,
12, Defendant believes Ind therefor avers that the best interests and permanent welfare
or the child requite tbat he be permitted to visit Ind talk with his child at least as often as is
perrniued by the present order of Court; however. due to plaintiff s continual disparagement of
ol\.,sl~~". RIo ....._1 Apr114,199lJ
DANIEL M. SCHENK,
Def.ndant
IN THE COURT OF COMMON PLEAI OF
CUMBERLAND COUNTY, PlNNlVLVANIA
CIVIL LAW . CUSTODY
NO. 1M. AM CIVIL TERM
IN CUSTODY
UNDA R. MIKlSIC,
Plalntl"
v.
I. HISTO~Y
The parties hereto were married, but have divorced, and are the parents of Rae Ann
Schenk, born December 11, 1985. On September 10, 1992, the Court of Common Pleas of
Cambria County, Pennsylvania, entered an Order providing primary physical custody of the child
to Plaintiff, hereinafter mother, and permitting her to relocate to Carlisle, Pennsylvania with the
child, subject to Defendant's, hereinafter Father, rights of partial custody.
In 1991, Mother married Stephen Mikesic. In 1996, Mother and Mr. Mikesic had a child.
Rae Ann resides, then, with her mother, Slephen Mikesic and her sister.
For many years, but at least since 1994, Mother has had significant concerns about Rae
Ann's treatment by Father, and more importantly, about the effect of that treatment on Rae Ann
herself. Mother alleged that Father was making threats to remove the child from the State, to
withhold her permanently from her mother, and to kill or harm her pets if the child did not come
to visit him. As a result, Mother alleged that Rae Ann was developing obsessive/compulsive
d1eorder, anxiety, stuttering and other neurotic symptoms which would require treatment. The child
was being treated by Bruce Kelly, M.S. Mother's Petition for Modification filed on October 13, 1994
sought supervised visits and required participation in Rae Ann's therapy by Father.
.;'.,slv........,......~.... RIo 14401-\11.01 April 4,1991
RAE ANN MIKESIC:
Rae Ann, an 11 year old, will teettfy regarding the It8ternenta
made to her by her father end her reluctance to spend
unsupervised time with hlrn.
BRUCE KEllY, M.S.:
Mr. Kelly has been Rae Ann's therapist for the peat three ye....
and will testify about his attempts to obtain Father's cooperation
In counselling with Rae Ann, end his wllllngne.s to provide
counselling for Rae Ann and her father Into the futur..
Ms. Fishel is Rae Ann's elementary school COUncilor and wtll
testify regarding her contacts and conversations with Rae Ann.
MARY BETH FISHEL:
IV. PROPOSED RESOLUTION
Mother proposes that Father's periods of partla' custody with Rae Ann end. In the
alternative, Mother proposes that the hearing be continued for a periOd of several months to permit
Father to enter Into counselling with Bruce Kelly and Rae Ann. At that point, Mother asks the
Court to enter an appropriate Order.
Respectfully submitted,
FLOWER. MORGENTHAL FLOWER 6 UNDSAY
AUorneYI for PI.lntJtf
By: Il.H~~~
~c.rol:. . EaquIIl
10 1# 448Q)
11 E... High Sir...
c."..... PA t1013
(717) 243-5513
.J