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HomeMy WebLinkAbout95-01610 .:\.milhdou,pel me /I 46-\9-95.01 NOW comes Douglas A. Smith, by and through his counsel, FLOWER, MORGENTHAL, FLOWER & LINDSAY, and prays this Honorable Court as follows: 1. The Plaintiff is Douglas A. Smith, residing at 138 Beetem Hollow Road, Newville, Cumberland County, Pennsylvania 17241. 2. The Defendant is Theresa A. Shank, whose last known address was Conodoguinet Mobile Estates, Newville, Cumberland County, Pennsylvania 17241. 3. The Plaintiff seeks custody of the following children. Name Present Residence ~ Amber Lynn Smith Joseph Allen Smith Unknown 5 years 4 years Unknown The children were born out of wedlock. The children are presently in the custody of Theresa A. Shank, whose address is unknown. During the past five years, the children have resided with the following persons and at the following addresses: s:\.mllhdou.pcl file II 464,9-95-01 8. The Plaintiff does not know of a person not a party to the proceedings who has physical custody of the children or cialms to have custody or visitation rights with respect to the children. 9. The best Interest and permanent welfare of the children will be served by granting the relief requested because: a) The Plaintiff can provide the more stable and wholesome environment for the children. b) Father can best provide for the children's spiritual, emotional and social well- being. c) Mother has removed the children from the family home, and refused to advise father of the children's whereabouts or to permit him contact with the children. 10. Each parent whose parental rights to the children have not been terminated and the person who has physical custody of the children has been named as parties to this action. WHEREFORE, the Plaintiff requests this Court to grant primary physical custody of the children to the Plaintiff. Respectfully submitted, FLOWER, MORGENTHAL FLOWER & UNDSAY Attorneys for By: Carol J, ndsay. Esquire 10 (I 44693 11 East HIgh Street CarlIsle. PA 17013 (717) 243.5513 3 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. NO. 95 - ''''0 CIVIL TERM IN CUSTODY I1~R 29 I 20 1'11'95 Plaintiff c - ; . ,:i nt: DOUGLAS A. SMITH, CoL' pi' '- "'",' ',j'Y ,'~. ~ t~- ,~ v. THERESA A. SMITH, Defendant ""L/tJ, So S-. - f'd.~' ",,(~) COMPLAINT FOR CUSTODY FLOWER, MORGENTHAL, FLOWER & LINDSAY A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 11 EAST HIGH STREET CARLISLE, PENNSYLVANIA 17013 ( ) JAMES 0, FLOWER 06272 ( ) ROGER M. MORGENTHAL 17143 ( ) JAMES D. FLOWER, JR, 27742 (X) CAROL J. LINDSAY 44693 '~.---.,,~ DOUGLAS A. SMITH, Plaintiff/Petitioner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW THERESA A. SHANK, Defendant/Respondent NO. 95-1610 CIVIL TERM DEFENDANT/RESPONDENT'S RESPONSE TQ PETITION FOR SPEQla4-R~~I~F AND NOW COMES the Defendant/Respondent, THERESA A. SHANK by and through her attorney, Richard L. Webber, Jr. and responds to the Petition for Special Relief filed by Plaintiff/Petitioner as follows: 1 . DENIED. Petitioner is residing at 3591 Carlisle Road, Gardners, Adams County, Pennsylvania 17324. 2. DENIED. Respondent is residing at 138 Beetem Hollow Road, Newville, Cumberland County, Pennsylvania 17241. 3. ADMITTED in part and DENIED in part. It is admitted that the parties are the parents of the two listed children. It is denied that their birth dates are correct. The said AMBER LYNN SMITH was born May 20, 1989. The said JOSEPH ALLEN SMITH was born April 28, 1991. 4. ADMITTED in part and DENIED in part. It is admitted that the children have resided at 138 Beetem Hollow Road since September 1992 and that maternal grandfather, uncle and aunt reside in the neighborhood. It is denied that the children have lived there from birth to September 1992. 5. ADMITTED. 6. DENIED. Petitioner, not Respondent permanently vacated the parties' home on March 19, 1995. Respondent temporarily left the home shortly thereafter because Petitioner threatened to return to the home for purposes of taking his son with him. Petitioner had made constant threats to take the children to Michigan prior to vacating the home. Respondent therefore believed that Petitioner intended to act in accordance with his threats. 7. DENIED. Respondent remains employed by Hardee's Restaurant. At no time did she quit her employment. 8. DENIED. Proof of the allegations is demanded at trial. 9. To the best knowledge of Respondent, the said Theresa Martin did make the alleged statements to Petitioner. Any implication that any of the statements were true, that Respondent instructed her to make those statements and/or that Respondent was aware that Ms. Martin was planning to make such statements is hereby denied. The statements were made by her (Theresa Martin) based on information that Ms. Martin received from Respondent's mother Mary Jane Row. Ms. Row feared that Petitioner would carry through on his threat to take the children to Michigan and therefore wanted Petitioner to believe that Respondent was not in the area. 10. ADMITTED. 11. ADMITTED. 12. DENIED. Petitioner is not residing at 138 Beetem Ilollow Road; therefore, granting primary custody to him would not maintain the status quo. 13. DENIED. Respondent has no intention of relocating to Virginia. 14. ADMITTED. WHEREFORE, Respondent respectfully requests that Petitioner's request for primary custody be denied. COUNTERPETITION FOR SPECIAL RELIEF AND NOW comes Respondent/CounterPetitioner, Theresa A. Shank, by and through her attorney, Richard L. Webber. Jr., and files this CounterPetition for Special Relief, averring the following: ,15. Paragraphs 1 through 14 above are incorporated by reference herein as though set forth in full. 16. Respondent/CounterPetitioner seeks temporary primary custody of the children for the following reasons: a. Plaintiff has relatives in Michigan and has threatened to take both children to Michigan. b. Defendant has maintained physical custody since the parties separated. c. Presently, Plaintiff's driving privileges are suspended as a result of a conviction for driving while under the influence of alcohol; d. Defendant is better able to care for the physical, emotional. educational and medical needs of the children; IN THE COURT OF COMMON PLEAS FOR CUM8ERLAND COUNTY, PENNSYLVANIA THERESA A. SHANK, DEFENDANT/ COUNTERPLAINTIFF CIVIL ACTION - LAW V. NO. 95-1610 CIVIL TERM DOUOLAS A. SMITH, PLAINTIFF/ COUNTERDEFENDANT CUSTODY ORDER OF COURT , AND NOW, , 1995 upon consideration of the attached complaint/counterclaim it is hereb~ directed that lhe parties and their respective counsel appear before Hubert X. Gilro~1 lhe conciliator, at the Cumberland Count~ Courthouse, Carlisle, PA, Fourth Floor, on the 4th day of May,1995, at 8:30 a.m., for a Pre-Hearing Custody Conference. At such conference, an efforl will be made to resolve the issues in dispute; or if this cannol be accomplished, to define and narrow the issues to be heard by lhe court, and to enter into a temporary order. All children a~e five or older may also be present at the conference. Failure lo appear at the conference may provide grounds for entry of a temporary or permanent order. FOR THE COURT, BY: Custody Conciliator The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accomodations available to disabled individuals having business before the court, please contact our office. All arrangements musl be made al least 72 hours prior to any hearing or business before lhe court. You must attend the scheduled conference or hearing. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN AT ONCE. IF YOU OR TELEPHONE THE GET LEGAL HELP. Office of the Court Administrator Courthouse, 4th Floor Carlisle, PA 17013 Telephone (717) 240-6200 Exhibit "A" IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA THERESA A. SHANK, DEFENDANT/ COUNTERPLAINTIFF CIVIL ACTION'- LAW V. NO. 95-1610 CIVIL TERM DOUGLAS A. SMITH, PLAINTIFFI COUNTERDEFENDANT CUSTODY DEFENDANT'S RESPONSE TO PLAINTIFF'S COMPLAINT FOR CUSTODY 1. DENIED. Plaintiff Douglas A. Smith resides at 3591 Carlisle Road, Gardners, Adams County, Pennsylvania 17324. 2. DENIED. Defendant Theresa A. Shank resides at 138 Beetem HoLlow Road. Newville, Cumberland County, Pennsylvania 17241. 3. DENiED. The correct biographi~al information is as follows: Name Present Residence All:e Amber Lynn Smith 138 Beetem Hollow Road Newville, PA 17241 5 years IDOB 5/20/891 Joseph Allen Smith 138 Beetem Hollow Road Newville, PA 17241 3 years IDOB 4/211/911 Both children were born out of wedlock. The children are Shank, who resides 17241. presently in the custody of Theresa at 138 Beetem Hollow Road, Newville, A. PA During the past five years the children have resided with the following persons and at the following addresses: Name Theresa Shank Theresa Shank nnd Douglas Smi th Theresa Shank and Douglas Smith List all Addresses Dates 138 Beetem Hollow Road Newville, PA 17241 3/19/95 to present 138 Beetem Hollow Road Newville, PA 17241 9/92 to 3/19/95 1 Cedar Lane Plainfield, PA 17081 9/91 to 9/92 Exhibit "A" - 2 Theresa Shank and Douglas Smith Betty Nelson Trailer Carlisle, PA 17013 Spring 90 to 9/91 The mother of the children is Theresa A. Shank, currentlY residing at 138 Beetem Hollow Road, Newville, PA 17241. She is single. The father of the children is Douglas A. Smith, currently residing at 3591 Carlisle Road, Gardners, Pennsylvania 17324. He is single. 4. ADMITTED in part and DENIED in part. It is admitted that Plaintiff is the natural father of the children. It is denied that he resides alone. To the contrary, he resides with David Reed. 5. ADMITTED. 6. ADMITTED. 7. ADMITTED. 8. ADMITTED. 9. DENIED, for the following reasons: a. Defendant, not Plaintiff, can provide a more stable and wholesome environment for the children; b. Defendant, not Plaintiff, can best provide for the children's spiritual, emotional and social well-being; c. Defendant has not removed the children from the family home. To the contrary, Plaintiff, on the other hand. has threatened to do so. d. Plaintiff has relatives in Michigan and has threatened to take both children to Michigan. e. Defendant has maintained physical custody since the parties separated. f. Presently, Plaintiff's driving privileges are suspended as a result of a conviction for driving while under the influence of alcohol; g. Defendant is better able to care,for the physical, emotional, educational and medical needs of the children; h. Defendant has been the primary caretaker Exhibit "A" - 3 since birth; i. Plaintiff has shown a minimal interest in the children; j. Plaintiff has used alcohol excessively on numerous occasions; k. Plaintiff has exhibited violent propensities; and 1. Plaintiff is currently residing at 3591 Carlisle Road, Gardners, Adams County, Pennsylvania, not the address alleged in his Complaint. Defendant, on the other hand, has maintained the same "pre-separation" residence. 10. ADMITTED. WHEREFORE, the Defendant requests this court to deny Plaintiff's request for primary physical custody of the children. COUNTERCLAIM FOR CUSTODY AND NOW comes the Defendant/CounterPlaintiff, Theresa A. Shank, and filp~ this Counterclaim for Custody, averring the following: 11. Paragraphs 1 through 10 above are incorporated by reference herein as though set forth in full. 12. The best interests of the children would be served by granting primary custody to Defendant/CounterPlaintiff for reasons stated in Paragraph 9 above, subject to reasonable visitation for Plaintiff/CounterDefendant: WHEREFORE, Defendant/CounterPlaintiff respectfully order granting her primary custody of the children, reasonable visitation by Plaintiff/CounterDefendant. request an subject to Respectfully submitted, 4U4Vi(~ Richard L. Webber, J . Attorney for Defendant 366 Green Spring Road P.O. Box 40 Newville, PA 17241-0040 (717) 776-6566 Exhibit "1\" - 4 I verify that the statements CounterPetition are true and correct. statements h~rein are made subject Pa.C.S.A. S~ction 4904 relating to authorities. made in this Response! I understand that false to the penalties of 18 unsworn falsification to oate:-:~~~'~ i ~ ~~" \{ ~---I( Theresa A. Shank~ . qs' Exhibit "A" - 5 '~:l.: ~PR G 9 13 ~~ 19S ). t d:f of it"~. :'~O)j<.'~.h'Y C\jW3~> ~ :.'tU ~, "I:tl t'f r't. ~t!l .: . ',-- . .:. ~; \ 1\ 6 9 lS AK '95 mEv-OfflOE Of THE Pf'.OTtlOHnT AhY CU140EI<LAHO COUHTY PE~HSYLV"'l!A .~l, DOUGLAS A. SMITH, Plaintiff/Petitioner v. THERESA A. SHANK, Defendant/Respondent ...rr::..-'"'........~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 95-1610 CIVIL TERM PRAECIPE FOR ENTRY OF APPEARANCE OF COUNSEL TO THE PROTHONOTARY: Please enter our appearances for the Defendant/Respondent. Theresa A. Shank. Dated: At,,1 b )('i~!t Dated: April 6, 1995 .4t./ A-t1-/~ Richard L. Webber. Jr. Attorney for Defendant/Respondent 366 Green Spring Road P.O. Box 40 Newville. PA 17241-0040 (717) 776-6566 Street. Sui te 2 ~~~~~~ ,. .{l:.:'\';.-, ~Pl\b \U QS M\ .~S m,FJ'Oi'FIGt cftllf. r.,;r.,n\O\l~Tt."l' ;r.;IlIiIlSf<\.l.\lC ljllUllt't '^rElll1S11.~~ln~ . ')~:~:;~;}?,/~_~~. ,fJj~'. . , ' ., ""......"'-'1...... ",_;~'6~~ " .,,~:[:::-.. ;'f} ~ . ;:,~ j, t:< ~/ '- 1 .~"J~-;\f~ " -.::' ~ ~:.~- ( ...: l 1 '\Cil .:, , 56. H'; ss 9 OE Y;H .:\.m~lhdou,pcl m. (I 4649-~1 DOUGLAS A. SMITH, Plaintiff/Petitioner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION. LAW NO. 95. CIVIL TERM . . vs. THERESA A. SHANK, Defendant/Respondent : . . IN CUSTODY AND now this day of , 1995, upon consideration of the within Petition, temporary primary physical and legal custody of Amber Lynn Smith, born May 22, 1989, and Joseph Allen Smith, born March 28, 1991 is granted to Petitioner, Douglas A. Smith, with reasonable rights of visitation in the Respondent pending further Order of this Court upon Petition or after conciliation. By the Court, J. .:\lll\lthdoll.pcl m., 464!l-~1 DOUGLAS A. SMITH, Plalntlff/Petltloner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 95 - CIVIL TERM IN CUSTODY vs. THERESA A. SHANK, Defendant/Respondent : NOW comes Douglas A. Smith, by and through his counsel, FLOWER, MORGENTHAL, FLOWER & LINDSAY, and petitions this Honorable Court as follows: 1. Petitioner is Douglas A. Smith, who resides at 138 Beetem Hollow Road, Newville, Cumberland County, Pennsylvania 17241. 2. Respondent is Theresa A. Shank whose present address is unknown, but whose last address was c/o her mother, Mary Jane Rowe, at Conodoguinet Mobile Estates, Newville, Cumberland County, Pennsylvania 17241. 3. The parties are parents of two children: Amber Lynn Smith, born May 22,1989; and Joseph Allen Smith, born March 28, 1991. 4. Since the children's birth, they have resided with the parties at 138 Beetem Hollow Road, Newville, Pennsylvania, in a neighborhood in which the maternal grandfather, an uncle and aunt reside. 5. The child, Amber, is a kindergarten student at Oakflat Elementary School in Newville, Pennsylvania. .:\.mlthdou,PCI file i1 4649-9S-01 6. On March 19, 1995, without notice to Petitioner and without any cause of which Petitioner Is aware, Respondent left the parties' home, taking with her the parties' children and removed herself to an address which she did not reveal to Petitioner. 7. On or about the same day, Petitioner quit her employment at Hardee's Restaurant. 8. For two months prior to her leave taking, Respondent had been out late at night, returning the children to bed well past their bedtime. 9. Theresa Martin, a friend of the Respondent, has advised Petitioner that Respondent is preparing to leave for Virginia, to take the children with her, and that she has a Job lined up In Virginia, and that she will be staying with her cousin, whose address is unknown to Petitioner. 10. When she left the parties' home, Respondent left the children's clothing, school supplies, toys and other articles Important to them. 11. Petitioner is employed by Carter Plumbing and Heating, in Chambersburg, Pennsylvania, and has been so employed for 3 1h years. Prior to that, he worked for four years at Hoffman Mills in Shippensburg, Pennsylvania. During the period when he and Respondent worked, child-care for the children was provided by Respondent's family in the Beetem Hollow Road area, that Is Respondent's grandmother, father, brother and sister-In-law. Presently, Respondent is not permitting these child-care providers to continue providing care for the children, nor has she provided them any knowledge about the children's whereabouts. Nevertheless, Respondent's family is willing to continue to provide child-care if the children return to their home. % a:\.mithdou,pcl me # 4649-~1 DOUGLAS A. SMITH, . IN THE COURT OF COMMON PLEAS OF . Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V8. . CIVIL ACTION - LAW . . NO. 95 - CIVIL TERM . THERESA A. SHANK, Defendant . IN CUSTODY . NOW comes Douglas A. Smith, by and through his counsel, FLOWER, MORGENTHAL, FLOWER & LINDSAY, and prays this Honorable Court as follows: 1. The Plaintiff is Douglas A, Smith, residing at 138 Beetem Hollow Road, Newville, Cumberland County, Pennsylvania 17241. 2. The Defendant is Theresa A. Shank, whose last known address was Conodogulnet Mobile Estates, Newville, Cumberland County, Pennsylvania 17241. 3. The Plaintiff seeks custody of the following children. Name Present Residence .&m Amber Lynn Smith Unknown 5 years 4 years Joseph Allen Smith Unknown The children were born out of wedlock. The children are presently In the custody of Theresa A. Shank, whose address is unknown. During the past five years, the children have resided with the following persons and at the following addresses: EXHIBIT !, I .A .:\.mi'hdou,pol m. I 4649-95-01 8. The Plaintiff does not know of a person not a party to the proceedings who has physical custody of the children or claims to have custody or visitation rights with respect to the children. 9. The best Interest and permanent welfare of the children will be served by granting the relief requested because: a) The Plaintiff can provide the more stable and wholesome environment for the children. b) Father can best provide for the children's spiritual, emotional and social well- being. c) Mother has removed the children from the family home, and refused to advise father of the children's whereabouts or to permit him contact with the children. 10. Each parent whose parental rights to the children have not been terminated and the person who has physical custody of the children has been named as parties to this action. WHEREFORE, the Plaintiff requests this Court to grant primary physical custody of the children to the Plaintiff. Respectfully submitted, FLOWER, MORGENTHAL FLOWER & UNDSAV Attorneys for By: Carol J. ndsay. Esquire ID /I 44693 11 East High Street Carlisle. PA 17013 (717) 243-5513 3 a:\smllhdou.poC 1lIe' 4649-95-111 ~ I, ths undsr5igned, hereby verify that the statsments made hsrein are true and correct. understand that false statsments herein are made subject to the penaltiss of 18 Pe. C.S. ~ 4904, relating to unsworn falsification to authorities. D~~ A.~ uglas A: Smith Date: ~l"l.'g'{qs- 5. ADMITTED. 6. DENIED. Petitioner, not Respondent permanently vacated the parties' home on March 19, 1995. Respondent temporarily left the home shortly thereafter because Petitioner threatened to return to the home for purposes of taking his son with him. Petitioner had made constant threats to take the children to Michigan prior to vacating the home. Respondent therefore believed that Petitioner intended to act in accordance with his threats. 7. DENIED. Respondent remains employed by Hardee's Restaurant. At no time did she quit her employment. 8. DENIED. Proof of the allegations is demanded at trial. 9. To the best knowledge of Respondent, the said Theresa Martin did make the alleged statements to Petitioner. Any implication that any of the statements were true, that Respondent instructed her to make those statements and/or that Respondent was aware that Ms. Martin was planning to make such statements is hereby denied. The statements were made by her (Theresa MartinI based on information that Ms. Martin received from Respondent's mother Mary Jane Row. Ms. Row feared that Petitioner would carry through on his threat to take the children to Michigan and therefore wanted Petitioner to believe that Respondent was not in the area. 10. ADMITTED. 11. ADMITTED. 12. DENIED. Petitioner is not residing at 138 Beetem Hollow Road; therefore, granting primary custody to him would not maintain the status quo. 13. DENIED. Respondent has no intention of relocating to Virginia. 14. ADMITTED. WHEREFORE, Respondent respectfully requests that Petitioner's request for primary custody be denied. COUNTERPETITION FOR SPECIAL RELIEF AND NOW comes Respondent/CounterPetitioner, Theresa A. Shank, by and through her attorney, Richard L. Webber, Jr., and files this CounterPetition for Special Relief, averring the following: ,15. Paragraphs 1 through 14 above are incorporated by reference herein as though set forth in full. 16. Respondent/CounterPetitioner seeks temporary primary custody of the children for the following reasons: a. Plaintiff has relatives in Michigan and has threatened to take both children to Michigan. b. Defendant has maintained physical custody since the parties separated. c. Presently, Plaintiff's driving privileges are suspended as a result of a conviction for driving while under the influence of alcohol; d. Defendant is better able to care for the physical, emotional, educational and medical needs of the children; IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNS~LVANIA THERESA A. SHANK, DEFENDANT! COUNTERPLAINTIFF CIVIL ACTION - LAW V. NO. 95-1610 CIVIL TERM DOUGLAS A. SMITH, PLAINTIFF/ COUNTERDEFENDANT CUSTODY ORDER OF COURT AND NOW, , 1995 upon consideration of the attached complaint/counterclaim it is hereby directed that the parties and their respective counsel appear before Hubert X. Gilroy, the conciliator, at the Cumberland County Courthouse, Carlisle, PA, Fourth Floor, on the 4th day of May,1995, at 8:30 R.m., for R Pre-Hearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute; or if this cannol be accomplished, to define and narrow the issues to bp heard by the court, and to enter into a temporary order. All children age five or older may also be present at the conference. Fllilllre 1.0 I\ppel\r at the conference may provide grounds for entry of a temporary or permanent order. FOR THE COURT, BY: Custody Conciliator The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accomodations 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 LAWYER DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN AT ONCE. IF YOU OR TELEPHONE THE GET LEGAL HELP. Office of the Court Administrator Courthouse, 4th Floor Carlisle, PA 17013 Telephone (717) 240-6200 Exhibit "A" THERESA A. SHANK, DEFENDANTI COUNTERPLAINTIFF v. DOUGLAS A. SMITH, PLAINTIFFI COUNTERDEFENDANT IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION'- LAW NO. 95-1610 CIVIL TERM CUSTODY DEFENDANT'S RE~PONSE TO PLAINTIFF'S COMPLAINT FOR CUSTODY 1. DENIED. Plaintiff Douglas A. Smith resides at 3591 Carlisle Road, Gardners, Adams County, Pennsylvania 17324. 2. DENIED. Defendant Theresa A. Shank' resides at 138 Beetem Hollow Road, Newville, Cumberland County, Pennsylvania 17241. 3. DENIEU. The correct biographieal information is as follows: Name Amber Lynn Smith Joseph Allen Smith Present Residence AlI:e 138 Beetem Hollow Road Newville, PA 17241 5 years IDOB 5/20/891 138 Beetem Hollow Road Newville, PA 17241 3 years IDOB 4/28/911 Both children were born out of wedlock. The Shank, 17241. children are who resides presently in the custody of Theresa at 138 Beetem Hollow Road, Newville, A. PA Durin~ the past five years the children have resided with the follOWing persons and at the follOWing addresses: HIDge Theresa Shank Theresa Shank nnd Douglas Smith Theresa Shank and Oou~las Sm i t h List all Addresses Dates 138 Beetem Hollow Road Newville, PA 17241 3/19/95 to present 138 Beetem Hollow Road Newville, PA 17241 9/92 to 3/19/95 1 Cedar Lane Plainfield, PA 17081 9/91 to 9/92 Exhibit "A" - 2 Th~resa Shank and Douglas Smith Betty Nelson Trailer Carlisle, PA 17013 Spring 90 to 9/91 The mother of the children is Theresa A. Shank, currently residing at 138 Beetem Hollow Road, Newville, PA 17241. She is single. The father of the children is Douglas A. Smith, currently residin~ at 3591 Carlisle Road, Gardners, Pennsylvania 17324. He is single. 4. ADMITTED in part and DENIED in part. It is admitted that Plaintiff is the natural father of the children. It is denied that h~ resides alone. To the contrary, he resides with David Reed. 5. ADMITTED. 6. ADMITTED. 7. ADMITTED. 8. ADMITTED. 9. DENIED, for the following reasons: a. Defendant, not Plaintiff, can provide a more stable and wholesome environment for the children; b. Defendant, not Plaintiff, can best provide for the children's spiritual, emotional and social well-being; c. Defendant has not removed the children from the family home. To the contrary, Plaintiff, on the other hand, has threatened to do so. d. Plaintiff has relatives in Michigan and has threatened to take both children to Michigan. e. Defendant has maintained physical custody since the parties separated. f. Presently, Plaintiff's driving privileges are suspended as a result of a conviction for driving while under the influence of alcohol; g. Defendant is better able to care,for the physical, emotional, educational and medical needs of the children: h. Defendant has been the primary caretaker of the children Exhibit "A" - 3 since birth; i. Plaintiff has shown a minimal interest in the children; J. Plaintiff has used alcohol excessively on numerous occasions; k. Plaintiff has exhibited violent propensities; and 1. Plaintiff is currently residing at 3591 Carlisle Road, Gardners, Adams County, Pennsylvania, not the address alleged in his Complaint. Defendant, on the other hand, has maintained the same "pre-separation" residence. lO. ADMITTED. WHEREFORE, the Defendant requests this court to deny Plaintiff's request for primary physical custody of the children. COUNTERCLAIM FOR CUSTODY AND NOW comes the Defendant/CounterPlaintiff, Theresa A. Shank, and filrs this Counterclaim for Custody, averring the following: 11. Paragraphs 1 through 10 above are incorporated by reference herein as though set forth in full. 12. The best interests of the children would be served by granting primary custody to Defendant/CounterPlaintiff for reasons stated in Paragraph 9 above, subject to reasonable visitation for Plaintiff/CounterDefendant: WHEREFORE, Defendant/CounterPlaintiff respectfully order granting her primary custody of the children, reasonable visitation by Plaintiff/CounterDefendant. request an subject to Respectfully submitted, RiC~4~~ Attorney for Defendant 366 Green Spring Road P.O. Box 40 Newville, PA 17241-0040 (717) 776-6566 Exhibit "A" - 4 I verify that the statements CounterPetition are true and correct. statements h~rein are made subject Pa.C.S.A. Section 4904 relating to authorities. made in this Response! I understand that false to the penalties of 18 unsworn falsification to Da te: .~.....?:--"- "~ i 'S' q~ ~ ~" ~ k...:-~I( Theresa A. Shank~ . Exhibit "1\" - 5 .;'.milhdr..,.<t m., 4649.9S.o1 ,. . ~ . . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNlY, PENNSYLVANIA CIVIL ACTION. LAW NO. 95. 1610 CIVIL TERM IN CUSTODY DOUGLAS A. SMITH, Plaintiff/Petitioner vs. THERESA A. SHANK, Defendant/Respondent ACCEPTANCE OF SER~ICE I accept service of the Petition for Special Relief on behalf of Theresa A. Shank and certify that I am authorized to do so in the above captioned matter. jJ ,,~ I S-, I~~'- , ) Date ~~U /f~~~ Richard L We ber, Jr., Esquire 366 Green Spring Road P. O. Box 40 Newville, PA 17241 ,~ ~.' ""- ;g '" .,. . c:--, 4 ~ .' .... -. Vl .,. 1:.:- :::c :':";. ~ ~ <.0 <.n -_:.::.~\ ~"W ~ f,,,!-h, . 11 -- . L..W Or-FICES FLOWER. MORGENTHAL. FLOWER &. LINDSAY A PROFESSIONAL CORPORATION 11 EAST HIGH STREET. CARLISLE. PENNSYLVANIA 11013-3016 .MAR 2 8 \92~d~ DOUGLAS A. SMITH, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW v. . . . . THERESA A. SHANK, Defendant . . . . NO. 95- Ju,IO CIVIL TERM AND NOW, this ORDER OF COURT 2.)si,(day of March, 1995, upon consideration of Plaintiff's Petition for Special Relief, a hearing is scheduled for Thursday, April 6, 1995, at 10:30 a.m., in Courtroom No.5, Cumberland County Courthouse, Carlisle, Pennsylvania. IT IS FURTHER ORDERED AND DIRECTED that pending the above- scheduled hearing, the children shall not be removed from the State of Pennsylvania. BY THE COURT, J. . , J. Carol J. Lindsay, Esq. 11 East High Street Carlisle, PA 17013 Attorney for Plaintiff Ms. Theresa A. Shank c/o Mary Jane Rowe Conodoguinet Mobile Estates Newville, Pa 17241 Defendant TRUE copy FROM RECORD In Testimony WhBfeot, , here unto set my hIM and the seal of said Court at Carlisle. ~. - Thl~ ..~~t;~; ~/Y~i, ~~ 7 ProthonOtlfY :rc ,. .... .: ,.... r' _ . .' . I _ . . - <-=-~. VB. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 95 - CIVIL TERM IN CUSTODY DOUGLAS A. SMITH, Plaintiff/Petitioner THERESA A. SHANK, Defendant/Respondent P-ETITION FOR SPECIAl.....BE.!.JfE NOW comes Douglas A. Smith, by and through his counsel, FLOWER, MORGENTHAL, FLOWER & LINDSAY, and petitions this Honorable Court as follows: 1. Petitioner is Douglas A, Smith, who resides at 138 Beetem Hollow Road, Newville, Cumberland County, Pennsylvania 17241. 2. Respondent is Theresa A. Shank whose present address is unknown, but whose last address was c/o her mother, Mary Jane Rowe, at Conodoguinet Mobile Estates, Newville, Cumberland County, Pennsylvania 17241. 3. The parties are parents of two children: Amber Lynn Smith, born May 22, 1989; and Joseph Allen Smith, born March 28, 1991. 4. Since the children's birth, they have resided with the parties at 138 Beetem Hollow Road, Newville, Pennsylvania, in a neighborhood in which the maternal grandfather, an uncle and aunt reside. 5. The child, Amber, Is a kindergarten student at Oakflat Elementary School In Newville, . Pennsylvania. 6. On March 19" 1995, without notice to Petitioner and without any cause 01 which I I I Respondent Is not permitting these child-care providers to continue providing care for the children, nor has she provided them any knowledge about the children's whereabouts. Nevertheless, Respondent's family Is willing to continue to provide child-care If the children return to their home. Petitioner is aware, Respondent left the parties' home, taking with her the parties' children and removed herself to an address which she did not reveal to Petitioner. 7. On or about the same day, Petitioner quit her employment at Hardee's Restaurant. 8. For two months prior to her leave taking, Respondent had been out late at night, returning the children to bed well past their bedtime. 9. Theresa Martin, a friend of the Respondent, has advised Petitioner that Respondent is preparing to leave for Virginia, to take the children with her, and that she has a job lined up In Virginia, and that she will be staying with her cousin, whose address Is unknown to Petitioner. 10. When she left the parties' home, Respondent left the children's clothing, school supplies, toys and other articles Important to them. 11. Petitioner is employed by Carter Plumbing and Heating, in Chambersburg, Pennsylvania, and has been so employed for 3 'h years. Prior to that, he worked for four years at Hoffman Mills in Shippensburg, Pennsylvania. During the period when he and Respondent worked, child-care for the children was provided by Respondent's family In the Beetem Hollow Road area, that is Respondent's grandmother, father, brother and sister-In-law. Presently, 2 12. If the relief requested Is granted. then, the children will be residing In the home in which they have resided since birth, cared for before and after school by their usual caretakers, the Respondent's family members, attending their usual school. In short, the status quo will be 13. If the re'" requ"led Is not granted, p"Nonor laars Ihe loss of his children to an I I best preserved by granting the relief requested. address unknown In Virginia, the loss of continuity In their lives, great expense In attempting to locate the children In a Jurisdiction not the home state of the children. 14. Petitioner has filed a Complaint for Custody, a copy of which is attached hereto as Exhibit "A". Although the conciliation date has not yet been set, Petitioner seeks relief pending that date. WHEREFORE, Petitioner prays this Honorable Court to enter an Order providing to Petitioner primary physical custody of Amber Lynn Smith and Joseph Allen Smith pending further Order of Court. FLOWER, MORGENTHAL FLOWER & LINDSAY Attorneys for plaintiff/petitioner By: ,," ~ ' '. ",..;t{""( ~d'.... . ' - ' ~arol J. Unds~ Esquire ; ..---rt:> # 44693 11 East High Street Carlisle, PA 17013 (717) 243-5513 Date:~(( ,'" ,t., .., (! (IVi....- I 3 DOUGLAS A. SMITH, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION. LAW NO. 95. CIVIL TERM IN CUSTODY Plaintiff VS. THERESA A. SHANK, Defendant : .c.QMPLAINI FOR CUSTODY NOW comes Douglas A. Smith, by and through his counsel, FLOWER, MORGENTHAL, FLOWER & LINDSAY, and prays this Honorable Court as follows: 1. The Plaintiff Is Douglas A. Smith, residing at 138 Beetern Hollow Road, Newville, Cumberland County, Pennsylvania 17241. 2. The Defendant is Theresa A, Shank, whose last known address was Conodogulnet Mobile Estates, Newville, Cumberland County, Pennsylvania 17241. 3. The Plaintiff seeks custody of the following children. Name Present Residence .&m Amber Lynn Smith Joseph Allen Smith Unknown 5 years Unknown 4 years The children were born out of wedlock. The children are presently In the custody of Theresa A. Shank, whose address is unknown. During the past five years, the children have resided with the following persons and at the following addresses: EXHIBIT I A NAME ADDRESS FROMfTO Douglas A. Smith and Theresa A. Shank 138 Beetem Hollow Road Newville, PA 17013 Birth to 3/19/95 3/19/95 to present The mother of the children Is Theresa A. Shank whose present address Is unknown. Theresa A. Shank Unknown She Is single. The father of the children Is Douglas A. Smith, currently residing at 138 Beetem Hollow Road, Newville, 17241. He is single. 4. The relationship of the Plaintiff to the children Is that of father. The Plaintiff currently resides with no other person. 5. The relationship of the Defendant to the children Is that of mother. The Defendant currently resides with the children. 6. Plaintiff has not participated as a party or witness, or In any other capacity In other litigation concerning the custody of the children in this or another jurisdiction. 7. The Plaintiff has no information of a custody proceeding concerning the children pendIng in a court of the Commonwealth. 2 .- .. --... .._._..-.- -----_. .--... .._- - ....---- -,... .- _. -- .._.- ----- ---- _..- .... >- ,c c 0 m ... 0 c :E "e a. II.~ 0 ~ .~ c U) 1:: ~ OZ ~ 0 <i. ~ enc( CD .D 0 "0 II) 0 ~~ 'jji -5 aI c: 'e 01 II) :E 8 ~ :c D.~ (J) 0 ... : a: 0 - ZZ ~ c c 0 OW 0 c .: a. ~ CD ~ ::ED. ... ::J C CD - ... 0 "E ~~ ~ iii CD :e 0 U m .D Qj m ~ .. u::l ~ ... Q. II) 0 € 11.0 '5 ... Ou "0 .a li:c ~ CD CI Z ... ~ ~ 1i1 c ::lz 0 '6 ~ 0:5 --.l ~ fit ::J CI C ::J UII: g ~ u ,!I! CD 0 a. 0 WW eel en Iii ... c j:! ... ::l CI m II) - u ~ m II) -5 ~o ... "0 z::l Z "0 C >- _u uz ffi CD 0 ID - C\I a. - rI .c II) 0 u CD ~ ex: >- 'iii m .. .. .. .. .. <0 >- :E III "0 .c .c - a. c ... C ~ ... ,5 II) 0 "0 m .D c ... C E ~ 0 CD 0 -= - ofi C Co -J n "e . - 0 lD '.... I U) "jji ,:;: ex: <iO c 'S: C :;: :::- .9! .... 0 " 0 ~ D. _C c( ~ :i'i: ... :.::- UI > .c - '(} 1-- z"O III a. .c c u. -1: c(C :c CD CI 0 ~ :E- :r:.! - c II) "C u en~ en CD ~ 0 0 CD ... .. .D. C 0 .. "") jj CD .. c( ci C '." "0 m ~ a CD c c: ,a1 en c( 0 Q. m 0 ... i :5 en z c m II) 0 ~ W c( :c CD m c CI II: - a) CD 0 '~ ... -5 ::l W ~ .c "." i .. 0 :r: II) N ... II) . .c '~ -- C l- N ll. ~ - , ..-.-.... ., -- ---.--.--..-- --,.. -- --. _. . _, .__ ____0._._----.--.- , . AfR 10 1144 All '95 , ,'. ,',', ',",', . "f 1/)0195' ~1:;;..&/~) {' ~~<'~ 1/1"lf.r- ~, 11/'~~' #11I/# zia, tJd./;t, '1/1/)/9-5 t~; rkwf ~ 11 ~40 P -,. IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA THERESA A. SHANK, DEFENDANT/ COUNTERPLAINTIFF CIVIL ACTION - LAW V. NO. 95-1610 CIVIL TERM DOUGLAS A. SMITH, PLAINTIFF/ COUNTERDEFENDANT CUSTODY DEFENDANT'S RESPONSE TO PLAINTIFF'S COMPLAINT FOR CUSTODY 1. DENIED. Plaintiff Douglas A. Smith resides at 3591 Carlisle Road, Gardners, Adams County, Pennsylvania 1732~. 2. DENIED. Defendant Theresa A. Shank resides at 13H Beetem Hollow Road, Newville, Cumberland County, Pennsylvania 172~1. 3. DENIED. The correct biographical information is as follows: Name Present Residence Alte Amber Lynn Smith 138 Beetem Hollow Road Newville, PA 172~1 5 years I DOB 5/20/H9) Joseph Allen Smith 138 Beetem Hollow Road Newville, PA 172~1 3 years I DOB ~/2H/!J1) Both children were born out of wedlock. The children are Shank, who resides 17241. presently in the custody of Theresa at 138 Beetem Hollow Road, Newville, A. PA During the past five years the children have resided with the following persons and at the following addresses: Name _L i s t a II Add rill>se~ Dates Theresa Shank 138 Beetem Hollow Road Newville, PA 17241 3/19/95 to present Theresa Shank nnd Douglas Smith 138 Beetem Hollow Road Newville. PA 17241 9/92 to 3/19/95 Theresa Shank and Douglas Smith I Cedar Lane Plainfield. PA 17081 9/91 to 9/92 Theresa Shank and Douglas Smith Betty Nelson Trailer Carlisle, PA 17013 Spring 90 to 9/91 The mother of the children is Theresa A. Shank, currently residing at 138 Beetem Hollow Road, Newville, PA 17241. She is single. The father of the children is Douglas A. Smith, currently residing at 3591 Carlisle Road, Gardners, Pennsylvania 17324. He is single. 4. ADMITTED in part and DENIED in part. It is admitted that Plaintiff is the natural father of the children. It is denied that he resides alone. To the contrary, he resides with David Reed. 5. ADMITTED. 6. ADMITTED. 7. ADMITTED. 8. ADMITTED. 9. DENIED, for the following reasons: a. Defendant, not Plaintiff, can provide a more stable and wholesome environment for the children; b. Defendant, not Plaintiff, can best provide for the children's spiritual, emotional and social well-being; c. Defendant has not removed the children from the family home. To the contrary, Plaintiff, on the other hand, has threatened to do so. d. Plaintiff has relatives in Michigan and has threatened to take both children to Michigan. e. Defendant has maintained physical custody since the parties separated. f. Presently, Plaintiff's driving privileges are suspended as a result of a conviction for driving while under the influence of alcohol; g. Defendant is better able to care for the physical, emotional, educational and medical needs of the children; h. Defendnnt has been the primary caretnker of the children since birth; i. Plaintiff has shown a minimal interest in the children; j. Plaintiff has used alcohol excessively on numerous occasions; k. Plaintiff has exhibited violent propensities; and 1. Plaintiff is currently residing at 3591 Carlisle Road, Gardners, Adams County, Pennsylvania, not the address alleged in his Complaint. Defendant, on the other hand, has maintained the same "pre-separation" residence. 10. ADMITTED. WHEREFORE, the Defendant requests this court to deny Plaintiff's request for primary physical custody of the children. COUNTERCLAIM FOR CUSTODY AND NOW comes the Defendant/CounterPlaintiff, Theresa A. Shank, and files this Counterclaim for Custody, averring the following: 11. Paragraphs 1 through 10 above are incorporated by reference herein as though set forth in full. 12. The best interests of the children would be served by granting primary custody to Defendant/CounterPlaintiff for reasons stated in Paragraph 9 above, subject to reasonable visitation for Plaintiff/CounterDefendant. WHEREFORE, Defendant/CounterPlaintiff respectfully order granting her primary custody of the children, reasonable visitation by Plaintiff/CounterDefendant. request an subject to Respectfully submitted, Ric1J!!W~4i Attorney for Defendant 366 Green Spring Road P.O. Box 40 Newville, PA li241-0040 (i17) ii6-6566 1':; - , v. iiri: Ii J 43 PH '95 IN THE COURT OF COMMON PLEAS OF CUMBE~D COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DOUGLAS A. SMITH, Plaintiff THERESA A. SHANK, Defendant 95-1610 CIVIL TERM ORDER OF COURT AND NOW, this 6th day of April, 1995, upon consideration of Plaintiff's Petition for Special Relief and of Defendant's Response to Petition for Special Relief, and following a hearing, it is ordered with respect to custody of the parties' two children, Amber Lynn smith, born May 20, 1989, and Joseph Allen smith, born April 28, 1991, as follows: 1. Legal custody shall be shared by the parties. 2. Primary physical custody of the children shall be in the mother. Temporary partial physical custody shall be in the father on alternating weekends from Saturday morning at 9:00 a.m. until Sunday evening at 7:00 p.m., commencing on Saturday, April 15, 1995. 3. By agreement of the parties, the children shall at no time be removed from Cumberland County. 4. Plaintiff shall not drive a motor vehicle with either child as a passenger while he does not have a valid license to do so. Nothing in this provision is intended to authorize operation of a vehicle by Plaintiff at other times without a valid license. l s:\lIIIllbdou.p.. ru., 464IMl5-01 DOUGLAS A. SMITH, . IN THE COURT OF COMMON PLEAS OF . Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA . . VI. . CIVIL ACTION. LAW . . NO. 95. 1610 CIVIL TERM . THERESA A. SHANK, . . Defendant IN CUSTODY ffiA.EC.lfE TO THE PROTHONOTARY: Please mark the captloned case settled and discontinued. FLOWER, MORGENTHAL FLOWER & LINDSAY Attorneys for Plaintiff By: a arol J. Un ay, Esquire 10 # 44693 11 East High Street Carlisle, PA 17013 (717) 243-5513 , , - -- b - t..r; - U'l 1.C -"" ::z: ~ -. NO. 95-1610 CIVIL TERM .c-.-.-~ . ._--. THERESA A. SHANK, : DEFENDANT! : COUNTERPLAINTIFF . . . . V. : . . DOUGLAS A. SMITH, . . PLAINTIFF! . . COUNTERDEFENDANT . . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW CUSTODY ~11 ,~\ ~~- Date: ~/'7'"]) I ~~)-- 4U~,hdLI Richard L. Webber, Jr. Attorney for Defendant! CounterPlaintiff 366 Green Spring Road P.O. Box 40 Newville, PA 17241-0040 Phone (7l7) 776-6566 ';,,;: r~ 'e.j -~ I~J; rtt I ~""" I~ f,f~: I;!,~ [~~ ~:t~- I, ~~J1, PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: Please mark the above matter discontinued. ',' ~ .::~ ':.~ :,';j ~_. " ,< W 5q AH "95 ; Jltuvfifia~'" OFih( !'l1fJIHPJ;~l~~1' . Clll'BElitA~Q Miiffr . 'f'f./iii:J'ilV;:IifA ' ,